WAYNE LAW REVIEW

VOLUME 60

Spring 2015

NUMBER 3

CONTENTS
ARTICLES
CRIMINAL LAW
Erika Breitfeld................................................................................................597
EMPLOYMENT AND LABOR LAW
Patricia Nemeth & Deborah Brouwer...........................................................643
WORKERS DISABILITY COMPENSATION
Martin L. Critchell.........................................................................................673
EVIDENCE
Louis F. Meizlish............................................................................................687
INSURANCE LAW
James T. Mellon & David A. Kowalski..........................................................807
BUSINESS ASSOCIATIONS
Michael K. Molitor ........................................................................................837
GOVERNMENT LAW
Patricia Paruch..............................................................................................867

FEATURED LECTURE
I. GOODMAN COHEN LECTURE: TRIAL PRACTICE AS VIEWED FROM
THE PERSPECTIVE OF THE TRIAL JUDGE
Judge Gerald E. Rosen..................................................................................885

NOTES
THE ISSUE OF STANDING IN UNITED STATES V. WINDSOR: A
CONSTITUTIONAL ERROR THAT IMPACTED THE INTEGRITY OF THE
JUDICIAL PROCESS
Nathan Inks..................................................................................891
REQUIRING A TRANSVAGINAL ULTRASOUND PRIOR TO ABORTION:
AN UNDUE BURDEN ON THE FREEDOM TO CHOOSE
Chelsey Marsh................................................................................................915

CRIMINAL LAW
ERIKA BREITFELD
I. MIRANDA AND OTHER EVIDENCE RULES ........................................... 598
A. Custodial Interrogation: Police, Parole, and the Measure of
Coercion .................................................................................. 598
B. The Power of Community: Did Local Citizens Just Help the
Police Catch Me?..................................................................... 601
C. Under the Michigan Rules of Evidence, Dont Tell Anyone
or Youll Get in Trouble Is Not Enough to Prove That a
Defendant Made a Witness Unavailable to Testify.................. 605
D. To Have and to Hold from This Day Forward: A Look at the
Spousal Privilege ..................................................................... 608
E. The Loud Consequences of Remaining Silent: Miranda,
Raffel, and Michigan Rules of Evidence.................................. 609
II. CRIME AND PUNISHMENT: THE CRIMINAL JUSTICE SYSTEM AT
WORK!............................................................................................. 611
A. Close . . . Closer . . . How Close Is Immediate Presence
Under the Larceny from a Person Statute?......................... 611
B. What Does Any Act Mean in the Extortion Statute?.............. 614
C. When Do I Have to Know That I Possess a Dangerous
Animal? Before or After It Attacks and Injures a Person? ...... 616
D. Summer Break and Breaking the Law: A Student, a Substitute
Teacher, and Michigans CSC Statute..................................... 618
E. Dont Take Away My PIP Benefits: Unlawfully Taking
Away and How It Affects Insurance Benefits......................... 619
III: JUDGES AND LAWYERSOUR BEHAVIOR MATTERS ...................... 622
A. Blurred Judicial Lines: When Professional and Personal
Conduct Merge ........................................................................ 622
B. What Say You? A Judges, a Prosecutors, and a Defense
Attorneys Statements Are All OK, Says the Court of
Appeals! ................................................................................... 625
C. When It Doesnt Go Your Way, Blame It on Your Attorney
(and Other Reasoning the Court Refuses to Adopt)................. 627

Assistant Professor of Law, Western Michigan UniversityCooley Law School;

former Macomb County Assistant Prosecuting Attorney 20052011. Professor Breitfeld
would like to dedicate this article to her Grandma Rose Herzinathank you for sharing
your love of reading and writing with me. You are so dearly missed.

597

598

WAYNE LAW REVIEW

[Vol. 60:597

IV. IF THE STATUTES LANGUAGE IS SO PLAIN, WHY ALL THE

ANALYSIS? ..................................................................................... 627
A. The Uniform Criminal Extradition Act (UCEA) and Juvenile
Applicability............................................................................. 627
B. How Much Does Your Crime Cost?What Did the
Legislature Intend with Any Cost? ...................................... 629
C. Crime Victims Rights FundNot to Punish, Just to Help........ 630
D. Making Your Victim Whole: What Does Full Restitution
Mean? ...................................................................................... 631
E. Sentencing Guidelines: To Score or Not to Score?That Is
the Question ............................................................................. 632
F. How Old Am I? The Importance of Age Calculation in
Criminal Sentencing ................................................................ 634
V. MICHIGAN MEDICAL MARIHUANA ACT (MMMA): THE ACT
THAT KEEPS THE COURTS BUSY!................................................... 637
A. How Much Do Your Brownies Weigh? ...................................... 637
B. But I Didnt Think the Law Applied to Me! ............................... 639
C. Living in the Mitten: You Have to Be a Michigan Resident to
Seek Immunity Under the MMMA............................................ 640
I. MIRANDA AND OTHER EVIDENCE RULES
A. Custodial Interrogation: Police, Parole, and the Measure of Coercion
In Michigan, a brief meeting with a parole agent is not considered
custodial interrogation when the purpose of the meeting is for the parole
agent to inform the defendant of his parole violations.1 In People v.
Elliott, the defendant, a man with a history peppered with convictions
since his youth, was paroled for an unarmed robbery conviction.2 During
his time on parole, he failed to report to his parole officer, and as such,
was taken into custody on June 17, 2010.3 While on parole, the defendant
was also a suspect in a gas station robbery, and when the defendant was
arrested for the parole violation, the police paid him a visit to question
him about the recent gas station robbery.4 The police read him his
Miranda rights and questioned him about that crime.5 The defendant
answered a few questions but then requested a lawyer, so the police
1.
2.
3.
4.
5.

People v. Elliott, 494 Mich. 292, 295, 833 N.W.2d 284, 286 (2013).
Id. at 296, 833 N.W.2d at 286.
Id. at 297, 833 N.W.2d at 28687.
Id. at 297, 833 N.W.2d at 287.
Id.

2015]

CRIMINAL LAW

599

ceased all questioning.6 On June 21, 2010, a parole officernot the

defendants assigned officer but an officer who was covering for the
assigned agents caseswent to serve the defendant with his amended
parole-violation notice.7 The defendant was brought to the jail library,
and the parole officer introduced herself and began serving the defendant
with his parole violations.8 During this exchange, the defendant made
incriminating statements about the gas station robbery that the police
were investigating him for.9 The length of the meeting was about fifteen
to twenty-five minutes, and the parole officer admitted that she did not
give the defendant Miranda rights or tell the defendant that he did not
have to talk to her without a lawyer present.10
The defendant was charged with the crime of robbing that gas
station, and he filed a motion to suppress his confession on the grounds
that his Miranda rights were violated.11 The trial court denied the
defendants motion, and a jury convicted the defendant.12 The defendant
appealed to the court of appeals, and it reversed the circuit courts ruling,
holding that the parole officer was a law enforcement officer for
purposes of Miranda, and the statements were inadmissible because the
defendant had earlier asked for a lawyer.13
The Michigan Supreme Court reversed the court of appeals and held
that the defendant was not subject to custodial interrogation.14 The court
reframed the issue, stating that the question was not if the parole officer
was a law enforcement officer for Miranda purposes, but rather if the
defendant was subject to custodial interrogation.15
To determine if custodial interrogation occurred, the court had to
first determine if the [defendants] freedom of movement was
curtailed.16 The court relied heavily on Howes v. Fields,17 where even
though a prisoner was told he could leave at any time, he was also
subjected to five to seven hours of questioning.18 In addition, the prisoner
was never read his Miranda rights, and the deputies ignored him when he
6. Id.
7. Id.
8. Id. at 29799, 833 N.W.2d at 28788.
9. Id. at 29899, 833 N.W.2d at 288.
10. Id. at 299, 833 N.W.2d at 288.
11. Id.
12. Id.
13. Id. at 299300, 833 N.W.2d at 288.
14. Id. at 322, 833 N.W.2d at 301.
15. Id. at 30104, 833 N.W.2d at 28990.
16. Id. at 308, 833 N.W.2d at 293 (quoting Howes v. Fields, 132 S. Ct. 1181, 1189
(2012)).
17. Fields, 132 S. Ct. at 1190.
18. Id. at 1193.

600

WAYNE LAW REVIEW

[Vol. 60:597

indicated that he no longer wanted to speak to them.19 The court reasoned

that like the defendant in Fields, who was also in custody during the
interrogation but told he could leave at any time, the defendant in the
current case was also aware that he could leave at any time and return to
his cell.20 Of particular importance to the courts analysis was that a
deputy, not a parole agent, escorted the defendant to the jail library,
indicating that the defendant knew that the parole officer had little
control over his freedom of movement.21
Further, the court noted that the circumstances surrounding the
defendants custodythat he was already in prisonwas relevant
because the level of restraint was the same before questioning and after
questioning (the shock that is inherent with facing confinement is not
present because a prisoner is aware that he is not permitted to roam
freely).22 Therefore, the court found that the defendants movement was
not curtailed during the meeting.23
As to the interrogation element, the court noted that Miranda was
enacted to prevent the inherently coercive pressures that are present
during questioning.24 In its analysis, the court compared the
circumstances of the Fields defendant to the defendant in the current
case. The court noted that the interrogation in the Fields case lasted five
to seven hours, while the interrogation in this case lasted only a
maximum of twenty-five minutes.25 Further, the defendant in Fields was
questioned by stern officers using profanity and sharp tones, while in this
case, the defendant was not questioned for the purposes of getting a
confession but questioned as part of the parole officers job duties, and
she was cordial and sympathetic.26 Also, the Fields defendant stated that
he no longer wanted to talk to the armed officers, but in this case, the
defendant never said that he didnt want to speak to the parole officer27
in fact, he asked her to tell the police that he wanted to speak with them
again.28 Comparing the circumstances in Fields to the current
circumstances, the court concluded that the defendant was not subject to

19.
20.
21.
22.
23.
24.
25.
26.
27.
28.

Elliott, 494 Mich. at 306, 833 N.W.2d at 292.

Id. at 31013, 833 N.W.2d at 29495.
Id. at 30910, 833 N.W.2d at 29394.
Id. at 309, 833 N.W.2d at 29394 (citing Fields, 132 S. Ct. at 1193).
Id. at 31113, 833 N.W.2d at 295.
Id. at 313, 833 N.W.2d at 295.
Id. at 314, 833 N.W.2d at 296.
Id. at 31415, 833 N.W.2d at 296.
Id. at 315, 833 N.W.2d at 296.
Id. at 319, 833 N.W.2d at 299.

2015]

CRIMINAL LAW

601

custodial interrogation, and the court reversed the court of appeals and
reinstated the defendants conviction and sentence.29
B. The Power of Community: Did Local Citizens Just Help the Police
Catch Me?
In a case entwined with multiple robberies and locations, the
message from People v. Henry30 is clear: when a community joins with
the police, the criminal loses. In Henry, a career criminal appealed his
five criminal convictions involving various armed robberies that
occurred in 2010.31 He raised Fourth,32 Fifth,33 and Sixth Amendment34
challenges, as well as claimed a Brady violation,35 Due Process
violation,36 and a subject matter jurisdiction challenge.37
A brief recitation of the facts is necessary to understand the
multitude of the defendants claims. The Lansing Police were barraged
with a string of armed robberies in November 2010.38 During that time,
the Lansing Police received an anonymous tip providing the name and
location of a man who the anonymous tip informant claimed committed
the recent armed robberies.39 An officer followed up on that tip and went
to the address where the suspect was supposed to be.40 The apartment
was secure, and there did not appear to be any signs of forced entry, so
the officer left, as he had no reason to enter the apartment without a
warrant.41 The next day, a suspect robbed a small diner that was about a
quarter of a mile away from the apartment that was referenced in the
anonymous tip.42 Officers responded to the restaurant and learned that
four witnesses to the robbery had left the diner looking for the suspect.43
The witnesses spotted the suspect and followed him to an auto parts
store, then to his vehicle, and finally to the apartment complex where the

29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.

Id. at 322, 833 N.W.2d at 301.

305 Mich. App. 127, 130, 854 N.W.2d 114, 120 (2014).
Id. at 13031, 854 N.W.2d at 121.
Id. at 137, 854 N.W.2d at 124.
Id. at 144, 854 N.W.2d at 127.
Id. at 151, 854 N.W.2d at 131.
Id. at 155, 854 N.W.2d at 133.
Id. at 159, 854 N.W.2d at 135.
Id. at 158, 854 N.W.2d at 134.
Id. at 131, 854 N.W.2d at 121.
Id.
Id.
Id. at 13132, 854 N.W.2d at 121.
Id. at 132, 854 N.W.2d at 121.
Id. at 132, 854 N.W.2d at 122.

602

WAYNE LAW REVIEW

[Vol. 60:597

witnesses stated that he entered on the ground level.44 Interestingly, the

apartment that was implicated the day before in the anonymous tip was
in the same complex and located on the same ground level where the
defendant retreated.45
When the police arrived at the apartment (the same one implicated in
the anonymous tip), the police noticed that the window was slightly
open, and pry marks were on the window frame.46 The police could not
see inside the apartment because the blinds were closed.47 The officers
tried the window and noticed that it was unlocked and large enough for a
person to fit through.48 Fearing for the safety of anyone inside, as well as
the possibility that the restaurant suspect had fled into the apartment, the
police entered and conducted a protective sweep.49 Inside the apartment,
police found the defendant inside and clothing matching the suspects
description.50
The defendant made several claims during his appeal. First, he
argued that the police were not justified in their entry into the
apartment.51 The court of appeals disagreed and held that the police
entered the home under exigent circumstances, namely in pursuit of a
fleeing felon from a public place.52 The court placed high significance on
how the witnesses at the restaurant maintained visual contact on the
defendant until police arrived only fifteen minutes later.53 The court
further noted that police were also justified in entering the home to
protect the public or other apartment occupants from a fleeing suspect
who could have been armed with a weapon.54 Therefore, the court found
that the police entered the defendants home lawfully.55
Second, the defendant argued that his trial counsel was ineffective.56
In support, the defendant claimed that during the trial his attorney failed
to file a motion to suppress evidence based on the warrantless entry,
failed to locate alibi witnesses, and failed to make appropriate
objections.57 The court rejected the defendants claim of ineffective
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.

Id. at 13233, 854 N.W.2d at 122.

Id. at 133, 854 N.W.2d at 122.
Id. at 134, 854 N.W.2d at 122.
Id.
Id.
Id.
Id.
Id. at 137, 854 N.W.2d at 124.
Id. at 138, 854 N.W.2d at 125.
Id. at 13839, 854 N.W.2d at 125.
Id. at 13940, 854 N.W.2d at 125.
Id. at 140, 854 N.W.2d at 126.
Id. at 140, 854 N.W.2d at 125.
Id. at 141, 854 N.W.2d at 126.

2015]

CRIMINAL LAW

603

assistance of counsel and noted that counsel was not ineffective for
choosing not to file frivolous motions.58 In sum, the court denied the
defendants claims of ineffective assistance of counsel.59
Additionally, the defendant claimed that the sufficiency of evidence
(that he assaulted a victim during one of his crimes) was not proven.60
The court disagreed and found that when the defendant told the victim
during the course of the robbery, you know the deal, and, youve got
two seconds, that a reasonable person would have feared an assault.61
The court explained that it was reasonable for the victim to infer that the
defendant was threatening her with violence and referencing the other
recent robberies.62
Next the defendant argued that the police violated his Miranda rights
when they questioned him in jail.63 The court agreed.64 The court took
particular disliking to the way the police explained Miranda rights to the
defendant.65 The court included the following exchange in its opinion:
Instead of scrupulously honoring defendants assertion of his
Fifth Amendment right to remain silent, the police sought to
assure defendant that he would not be giving up his rights by
making a statement. Specifically, when defendant stated, you
say give up the rights, the detective responded, Well no, do
you wanna give us, give us a statement at this time? . . . . The
detective informed defendant that his rights were on the form;
then stated, Now Im asking do you wanna make a statement at
this time . . . ? . . . . [B]efore signing the waiver, defendant
again sought assurance that he was not giving up his rights when
he stated, But Im not give [sic] up my rights am I?66
The court reasoned that the police concealed that agreeing to talk
also was a waiver of the defendants rights.67 But even though the court
found that the police violated the defendants Miranda rights, the court
held that the error was harmless.68 The court cited the mountains of
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.

Id. at 14142, 854 N.W.2d at 126.

Id. at 142, 854 N.W.2d at 126.
Id. at 142, 854 N.W.2d at 12627.
Id. at 143, 854 N.W.2d at 127.
Id. at 14344, 854 N.W.2d at 127.
Id. at 144, 854 N.W.2d at 127.
Id. at 147, 854 N.W.2d at 129.
Id. at 14748, 854 N.W.2d at 12930.
Id. at 14748, 854 N.W.2d at 129 (emphasis omitted).
Id. at 148, 854 N.W.2d at 130.
Id.

604

WAYNE LAW REVIEW

[Vol. 60:597

evidence against the defendant, including the several witnesses who

could identify him committing the various robberies.69 And the court
reasoned that a rational jury would have found the defendant guilty
without the error.70
But in a rather lengthy dissent that evaluated the history, purpose,
and foundation of Miranda, Judge Boonstra disagreed with the courts
opinion that the police violated the defendants Miranda rights.71 In the
dissent, Judge Boonstra indicated that the police were not trying to
coerce the defendant into making a statement but instead were trying to
dispel the defendants confusion.72 In fact, Judge Boonstras dissent
indicated that while the defendant was given proper Miranda rights,
there was no unequivocal invocation of those rights73 and no
interrogation for purposes of Miranda.74
Finally, the defendant claimed that he should have been afforded the
right to cross examine the confidential informant and that the courts
failure to require the prosecutor to disclose the informants identity
violated his due process rights.75 The court agreed that testimonial
evidence did come in at trial that was hearsay and violated the
defendants right to confront his witnesses.76 But the court ruled that this
error also did not affect the outcome of the trial, considering the
overwhelming evidence against the defendant.77 The court also held that
the prosecution did not have to produce the confidential informant unless
the defendant showed a need for the informants testimony, which the
defendant did not show.78 Further, the court reasoned that the
confidential informant would not have offered any material or
exculpatory information; therefore, the court held that the trial court did
not abuse its discretion when it denied the defendants motion to produce
the confidential informant.79
In sum, the court denied all of the defendants motions, except for its
finding of a Miranda violation, which the court deemed harmless error.

69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.

Id. at 14851, 854 N.W.2d at 13031.

Id. at 151, 854 N.W.2d at 131.
Id. at 163, 854 N.W.2d at 137.
Id. at 16770, 854 N.W.2d at 13941.
Id. at 168, 854 N.W.2d at 140.
Id. at 173, 854 N.W.2d at 14243.
Id. at 15152, 854 N.W.2d at 13132.
Id. at 154, 854 N.W.2d at 132.
Id. at 155, 854 N.W.2d at 133.
Id. at 15657, 854 N.W.2d at 134.
Id. at 157, 854 N.W.2d at 134.

2015]

CRIMINAL LAW

605

C. Under the Michigan Rules of Evidence, Dont Tell Anyone or Youll

Get in Trouble Is Not Enough to Prove That a Defendant Made a
Witness Unavailable to Testify
In Michigan, a criminal defendant must specifically intend that his
wrongdoing will make a witness unavailable to testify; knowledge of that
outcome is not enough. In People v. Burns,80 a four-year-old girl
disclosed to her Bible-study teacher that her father (the defendant) had
sexually abused her.81 The defendant promptly moved out of the home,
and the defendant did not have any further contact with the child until the
trial.82 After the child disclosed to the Bible-study teacher, she was
interviewed by a forensic interviewer, as well as a sexual-assault nurse.83
The child disclosed during both of the interviews that her father had
sexually abused her.84 The child did not testify at the preliminary exam
because the court allowed the sexual-assault nurse to testify about the
abuse under the medical-treatment exception to Michigan Rule of
Evidence (MRE) 803(4).85
At trial, the prosecution elicited the testimony of the Bible-study
teacher before the young girl testified.86 After the Bible-study teacher
testified, the prosecutor called the young child to the stand four times.87
The young child would not testifythe child left the witness stand, hid
in the courtroom, and even indicated that she would not tell the truth.88 In
response, the prosecutor argued that under Michigan Rule of Evidence
804(b)(6) the young child was unavailable because the defendant had
made the young child unavailable through this own wrongdoing.89 Under
Michigan Rule of Evidence 804(b)(6), a defendant can lose his right to
object to hearsay evidence if his own wrongdoing made the witness
unavailable.90 This rule is often referred to as the forfeiture-by80. 494 Mich. 104, 832 N.W.2d 738 (2013).
81. Id. at 107, 832 N.W.2d at 740.
82. Id.
83. Id.
84. Id.
85. Id. at 107 n.3, 832 N.W.2d at 740 n.3.
86. Id. at 107 n.4, 832 N.W.2d at 740 n.4. Per the Michigan Rule of Evidence 803, a
corroborating witness can testify before the actual declarant as long as the declarant
testifies at some point during the proceedings. Because the young child did not testify in
court, the prosecutor argued that the defendant had made the young child unavailable
through his own wrongdoing, and the court should admit the Bible-study teachers
testimony even without the childs testimony. Id. at 108, 832 N.W.2d at 741.
87. Id. at 10708, 832 N.W.2d at 741.
88. Id. at 108, 832 N.W.2d at 741.
89. Id.
90. MICH. R. EVID. 804(b)(6); Burns, 494 Mich. at 110, 832 N.W.2d at 742.

606

WAYNE LAW REVIEW

[Vol. 60:597

wrongdoing rule.91 The prosecutor argued, therefore, that the childs

testimony should be admitted through the Bible-study teacher.92
The prosecutor supported the argument by reminding the court that
the young child disclosed during her forensic interview that the
defendant told her not to tell and that if she did tell, she would get in
trouble.93 The prosecutor argued that the defendants instructions not
to tell was the wrongdoing that precluded the young girl from testifying,
thus making her unavailable.94 In response, the trial court judge found
that the defendant had committed wrongdoing and also found that the
young girl was unavailable to testify.95 As a result, the trial court then
allowed the hearsay testimony of the sexual-assault nurse and the
forensic interviewer, concluding that the defendant had forfeited his
confrontation right.96 The defendant was found guilty of first-degree
criminal sexual conduct, and he appealed.97
The court of appeals reversed the trial court, concluding that the trial
court had incorrectly interpreted the forfeiture-by-wrongdoing analysis
of MRE 804(b)(6).98 Specifically, the court of appeals opined that the
forfeiture-by-wrongdoing analysis requires that the defendant have a
specific intent that his wrongdoing will cause the witnesss
unavailability.99 The prosecutor filed leave to appeal.100
The Michigan Supreme Court held that the defendant did not have
the specific intent for his wrongdoing to make the young child
unavailable as a witness.101 To begin its analysis, the supreme court
analyzed the three elements required to admit evidence under the
forfeiture-by-wrongdoing rule.102 The court started by acknowledging
that the defendant did engage in wrongdoing and therefore met the first
element.103 As to the second element, that the wrongdoing is intended to
procure the declarants unavailability, the court focused heavily on the
91. Burns, 494 Mich. at 11011, 832 N.W.2d at 742.
92. Id. at 108, 832 N.W.2d at 741. Under the Michigan Rule of Evidence 804(b)(6), a
defendant can lose the right to object to hearsay evidence if his own wrongdoing made
the witness unavailable. This rule is often referred to as the forfeiture by wrongdoing
rule. Id. at 11011, 832 N.W.2d at 742.
93. Id. at 108, 832 N.W.2d at 741.
94. Id.
95. Id. at 10809, 832 N.W.2d at 741.
96. Id. at 109, 832 N.W.2d at 741.
97. Id. at 109, 832 N.W.2d at 742.
98. Id.
99. Id.
100. Id.
101. Id. at 106, 832 N.W.2d at 740.
102. Id. at 115, 832 N.W.2d at 745.
103. Id.

2015]

CRIMINAL LAW

607

intent element.104 In its analysis, the court referred to Michigan precedent

that requires a specific intent analysis for the forfeiture-by-wrongdoing
application.105 The court distinguished between a defendant having the
knowledge that his actions may lead to a witnesss unavailability, versus
a defendant having the actual purpose to cause a witnesss
unavailability.106 Applying the specific facts of the case to the specific
intent requirement, the court relied on how the defendant immediately
left the home after the allegations and never had any more contact with
the young child.107
The court also explained that the timing of the defendants
statements was important.108 For example, if the defendant had made the
statements after the sexual abuse had been reported, the court stated that
would infer a strong intent to cause the young childs unavailability.109
But in reality, the defendant made the statement warning the child not to
tell during the sexual abuse, not after.110 The court reasoned that the
defendants statements could be interpreted to mean that the defendant
wanted the abuse to go undiscovered just as much as the statements
could be intended to prevent the young child from testifying.111 The
supreme court illustrated its frustration with the trial courts lack of factfinding and acknowledged that the intent analysis must be conducted on
a case-by-case basis.112 Therefore, the supreme court found that based on
the facts, the trial courts findings did not support the specific intent
required under the second element of MRE 804(b)(6).113
Finally, the court addressed the third element of MRE 804(b)(6)
that the defendants actions caused the unavailability.114 The court stated
that the trial court undermined its own analysis when it failed to mention
the defendants actions as a reason why the young child would not
testify.115 The supreme court found that because the defendants
wrongdoing was not included as a reason why the child would not
testify, the trial court erred when it concluded that the prosecutor
104. Id. at 11518, 832 N.W.2d at 74547.
105. Id. at 11213, 832 N.W.2d at 74344 (citing People v. Jones, 270 Mich. App.
208, 714 N.W.2d 362 (2006)).
106. Id. at 117, 832 N.W.2d at 746.
107. Id. at 11516, 832 N.W.2d at 745.
108. Id. at 116, 832 N.W.2d at 745.
109. Id.
110. Id.
111. Id. at 11617, 832 N.W.2d at 746.
112. Id. at 11618, 832 N.W.2d at 746.
113. Id. at 118, 832 N.W.2d at 747.
114. Id. at 119, 832 N.W.2d at 747.
115. Id.

608

WAYNE LAW REVIEW

[Vol. 60:597

satisfied the third element, causation, of MRE 804(b)(6).116 As a result,

the supreme court affirmed the court of appeals and remanded the case to
the trial court for a new trial.117
D. To Have and to Hold from This Day Forward: A Look at the Spousal
Privilege
When a spouse is prosecuted for actions stemming from a personal
wrong or injury done by one spouse to the victim spouse, the court can
compel the victim spouse to testify. In People v. Szabo,118 a husband
went to his estranged wifes house and shot a man who was visiting.119
During the incident, the defendant put two bullet holes in the wifes
home, and she was visibly upset by the incident.120 The husband was
charged with assault with intent to murder and felonious assault.121
At the preliminary exam, the prosecution called the defendants wife
to the stand.122 The defendants attorney stated that the wife was going to
exercise her spousal privilege.123 But the wife testified, and the district
court sent the matter to circuit court.124
In circuit court, the defense filed a motion to quash and dismiss
based on spousal privilege.125 The attorney argued that the wife was
compelled to testify against her will.126 In support of his motion, the
defense attorney attached a signed affidavit from the wife that stated that
she formally invoked her spousal privilege not to testify and that she did
not fear the defendant.127 The prosecution responded by arguing that at
the preliminary exam the wife never asserted her spousal privilege, so
she waived any right to now assert that privilege.128 Further, the
prosecutor added that the spousal privilege did not apply because the
defendant was being prosecuted for actions growing out of a personal
wrong or injury done by one [spouse] to the other, as indicated in the

116.
117.
118.
119.
120.
121.
122.
123.
124.
125.
126.
127.
128.

Id.
Id. at 120, 832 N.W.2d at 74748.
303 Mich. App. 737, 738, 846 N.W.2d 412, 414 (2014).
Id. at 738, 846 N.W.2d at 414.
Id.
Id.
Id. at 739, 846 N.W.2d at 414.
Id.
Id.
Id.
Id.
Id.
Id. at 73940, 846 N.W.2d at 414.

2015]

CRIMINAL LAW

609

applicable statute.129 The trial court disagreed with the prosecutor and
dismissed the case against the defendant.130 The prosecutor appealed.131
The court held that the wife did not need to consent to testify; stated
another way, the prosecution could compel her testimony because the
spousal privilege did not apply.132 The court meticulously reviewed the
history of the spousal-privilege statute and its amendments.133
Ultimately, the court determined that the general rule is that there is a
legal right not to make a spouse testify against the other spouse.134 But
that rule must be read with its exceptions, including subsection (3),
stating that the privilege does not apply [i]n a cause of action that grows
out of a personal wrong or injury done by one [spouse] to the
other . . . .135 Therefore, because the defendants charges stemmed from
him entering his wifes home and shooting one of her guests, the court
reversed the trial court and remanded for reinstatement of the charges
against the defendant.136
E. The Loud Consequences of Remaining Silent: Miranda, Raffel, and
Michigan Rules of Evidence
The Michigan Supreme Court has held that a defendants silence at
his first trial can be used for cross-examination in that same defendants
second trial.137 In People v. Clary,138 a criminal defendant was tried for
attempted murder and possession of a firearm during a felony.139 The
jury could not reach a verdict, and the trial court declared a mistrial due
to a hung jury.140 The defendant did not take the stand at his first trial.141
129. Id. at 740, 846 N.W.2d at 414 (alteration in original) (quoting MICH. COMP. LAWS
ANN. 600.2162(3)(d) (West 2015)).
130. Id.
131. Id.
132. Id. at 749, 846 N.W.2d at 419.
133. Id. at 74148, 846 N.W.2d at 41519. The court examined previous opinions
including the cases People v. Love, 425 Mich. 691, 391 N.W.2d 738 (1986); People v.
Sykes, 117 Mich. App. 117, 323 N.W.2d 617 (1982); People v. Ellis, 174 Mich. App.
139, 436 N.W.2d 383 (1988). The court also noted that the spousal privilege statute has
undergone two amendments to arrive to its current content today. Szabo, 303 Mich. App.
at 741, 846 N.W.2d at 415.
134. Id. at 74647, 846 N.W.2d at 418.
135. Id. at 747, 846 N.W.2d at 418 (alterations in original) (quoting MICH. COMP.
LAWS ANN. 600.2162(3)(d) (West 2015)).
136. Id. at 749, 846 N.W.2d at 419.
137. People v. Clary, 494 Mich. 260, 263, 833 N.W.2d 308, 311 (2013).
138. Id.
139. Id. at 262, 833 N.W.2d at 310.
140. Id.
141. Id. at 263, 833 N.W.2d at 311.

610

WAYNE LAW REVIEW

[Vol. 60:597

During his second trial, the defendant took the stand and testified
that he did not shoot the victim.142 On cross-examination, the prosecutor
impeached the defendant by asking him why he did not offer that
testimony during the first trial.143 Specifically, the prosecutor stated,
You didnt tell that jury the same story youre telling this jury, did you,
sir?144 The jury returned a guilty verdict, and the defendant appealed
based on the prosecutors use of his silence during cross-examination.145
The court of appeals held that the defendant was improperly
impeached and dismissed the defendants convictions.146 The prosecutor
filed an application for leave to appeal.147
The Michigan Supreme Court held that the prosecutors
impeachment of the defendant could include that defendants silence
during his earlier trial.148 The court took great lengths to compare the
current case to Raffel v. United States,149 which is the guiding case about
silence used as impeachment. The court distinguished the Raffel case
with the Doyle case.150 Using these two cases as guidance, the court held
that while it was permissible to comment on the defendants silence
during his first trial, the prosecutor could not refer to the defendants
post-arrest and post-Miranda silence.151 (During the second trial, the
prosecutor had asked the defendant why he never told the police he
didnt shoot the victim.152)
The court stated that when the prosecutor asked the defendant why
he never told the police he didnt shoot the victim, the prosecutor
violated the defendants post-Miranda silence.153 The court relied on
Raffel again to reason that Raffel addresses impeachment that occurs
during subsequent trials, while the Doyle case addresses silence that
occurs at the time of arrest.154 This distinction was key to the courts
analysis.
142. Id. at 26364, 833 N.W.2d at 311.
143. Id. at 264, 833 N.W.2d at 311.
144. Id. at 264 n.1, 833 N.W.2d at 311 n.1.
145. Id. at 264, 833 N.W.2d at 311.
146. Id.
147. Id.
148. Id. at 263, 833 N.W.2d at 311.
149. 271 U.S. 494 (1926); see Clary, 494 Mich. at 26671, 833 N.W.2d at 31215.
150. Id. at 27173, 833 N.W.2d at 31517.
151. Id. at 27172, 833 N.W.2d at 31516. The court reviewed the arraignment
transcript and verified that the defendant was read his Miranda rights, so the prosecutor
could not comment on the lack of any post-arrest and post-arraignment statements. Id. at
272, 833 N.W.2d at 316.
152. Id. at 272, 833 N.W.2d at 316.
153. Id. at 27172, 833 N.W.2d at 31516.
154. Id. at 272, 833 N.W.2d at 316.

2015]

CRIMINAL LAW

611

Therefore, the court held that the prosecutor should not have made
reference to the defendants post arrest and post-Miranda silence and
should not refer to that silence if there was a third trial.155 But the court
noted that the defendants decision not to testify at his first trial can be
used for impeachment purposes, which was what occurred in the current
case.156
Finally, the court acknowledged the chilling effect that comes with
allowing a defendants silence to be used as impeachment evidence in a
later retrial.157 But the court explained that the Fifth Amendment is not
an immunity from cross-examination on the matters he has himself put
in dispute.158 The court reasoned that the Fifth Amendment does not
preclude the defendant from the truth-testing function159 of crossexamination: if the defendant takes the stand he cannot then assert his
right to remain silent to avoid the interests of justice.160
Therefore, the court ultimately did not change the court of appeals
reversal of the defendants convictions, not because of the prosecutors
use of the defendants silence as impeachment, but because the
prosecutor should not have addressed the defendants post-arrest and
post-Miranda silence.161 As a result, the court remanded the case for
further proceedings (a possible third trial) and indicated that if there was
another trial, the prosecutor could refer to the defendants failure to
testify at his first trial.162
II. CRIME AND PUNISHMENT: THE CRIMINAL JUSTICE SYSTEM AT
WORK!
A. Close . . . Closer . . . How Close Is Immediate Presence Under the
Larceny from a Person Statute?
The Michigan Supreme Court clarified the meaning of the phrase
from the person of another in the context of the larceny from the
person statute.163 A loss prevention officer working at Macys viewed,
over closed-circuit television, a very nervous patron (the defendant)
155. Id.
156. Id. at 27071, 833 N.W.2d at 315.
157. Id. at 27778, 833 N.W.2d at 319.
158. Id. at 279, 833 N.W.2d at 320 (quoting Brown v. United States, 356 U.S. 148,
15556 (1958)).
159. Clary, 494 Mich. at 278 n.13, 833 N.W.2d at 319 n.13.
160. Id. at 279, 833 N.W.2d at 320.
161. Id. at 280, 833 N.W.2d at 321.
162. Id. at 281, 833 N.W.2d at 321.
163. People v. Smith-Anthony, 494 Mich. 669, 672, 837 N.W.2d 415, 417 (2013).

612

WAYNE LAW REVIEW

[Vol. 60:597

walking through the store.164 The defendant selected a perfume set from a
display and put it in a grocery bag that she had with her.165 The loss
prevention officer confronted the defendant about the perfume set, and
after a struggle, the defendant was captured.166
The prosecution charged the defendant with unarmed robbery.167 The
jury was instructed on the unarmed robbery, and per the defendants
request, larceny from the person.168 The jury was read the larceny from
a person criminal jury instruction, which explained that to find a person
guilty of larceny from the person, the jury must find that the property
was taken from [the loss prevention officers] person or from the [loss
prevention officers] immediate area of control or immediate
presence.169 The jury returned a verdict of not guilty on the unarmed
robbery but guilty of larceny from the person.170 The defendant
appealed.171
The court of appeals reversed the defendants conviction because it
found that taking property from another required more than [a] vague
proximity between the victim and the perpetrator.172 In essence, the
court of appeals did not find that the loss prevention officer was close
enough to the defendant for the defendant to have committed a taking
that was within the immediate area of control or immediate
presence.173 The prosecutor filed an application for leave to appeal, and
the supreme court granted leave to address the following three issues:
1. Was there proof beyond a reasonable doubt that the crime of
larceny was committed within the immediate area of control or
immediate presence of the loss prevention officer;
2. Did the 2004 amendment of the robbery statute alter the
definition of presence under the larceny from the person
statute; and

164.
165.
166.
167.
168.
169.
170.
171.
172.
173.

Id. at 673, 837 N.W.2d at 417.

Id.
Id. at 67374, 837 N.W.2d at 417.
Id. at 674, 837 N.W.2d at 417.
Id. at 674, 837 N.W.2d at 418.
Id. (emphasis omitted).
Id.
Id.
Id. at 675, 837 N.W.2d at 418.
Id.

2015]

CRIMINAL LAW

613

3. If the amendment did not alter the definition of the word

presence, is the phrase consistent with the common law
definition of presence.174
To begin, the Michigan Supreme Court analyzed past decisions and
concluded that the definition of from the person requires the victim to
be immediately present when the property is taken.175 Further, the court
acknowledged that the constructive presence exception also applied to
larceny-from-the-person cases if the defendant prevented the victim from
accessing the victims property by using force or threats.176 The
constructive presence exception means that a victim is constructively
present with the property even when they are separated from it due to the
violence or fear created from the defendant.177
The court next confirmed that the 2004 amendments to Michigans
robbery statute did not have any affect on the meaning of from the
person in the larceny from the person statutefrom the person still
requires that the victim be immediately present when the property is
taken.178
The court then analyzed what the meaning of immediate presence
encompasses. The court stated that:
[t]he immediate presence test can only be satisfied if the property
was in immediate proximity to the victim at the time of the
taking. In other words, the common-law meaning of immediate
presence in the larceny-from-the-person context is consistent
with the plain meaning of the word immediate, which means
having no object or space intervening, nearest or next.179
When applying the law to the facts, the court held that the facts did
not satisfy the immediate presence test because the loss prevention
officer was not in possession of the property when it was taken.180 The
court reasoned that the evidence was insufficient to show that the
defendant was in the immediate presence of the victim.181 Rather, the
174. Id. at 67576, 837 N.W.2d at 418.
175. Id. at 68283, 837 N.W.2d at 422.
176. Id. at 685, 837 N.W.2d at 424 (discussing People v. Gould, 384 Mich. 71, 179
N.W.2d 617 (1970)).
177. Id. at 684, 837 N.W.2d at 423.
178. Id. at 68587, 837 N.W.2d at 425.
179. Id. at 688, 837 N.W.2d at 42526 (quoting RANDOM HOUSE WEBSTERS UNABRIDGED DICTIONARY (2d ed. 1998)).
180. Id. at 689, 837 N.W.2d at 426.
181. Id.

614

WAYNE LAW REVIEW

[Vol. 60:597

loss prevention officer was only fairly close to the defendant when she
stole the perfume set.182 Therefore, the court found that the conviction
was in error and affirmed the court of appeals judgment.183
In a lengthy dissent, Justice Kelly stated that the majority was
defining the from the person language too narrowly.184 Specifically,
Justice Kelly stated that the majority was ignoring years of jurisprudence
that delineated that actual possession was not needed for larceny from
the person.185 Instead, Justice Kelly advocated that the proper definition
of from the person is one that means property taken in the persons
immediate presence, which includes property that is under the persons
personal protection and control such that a taking of such property
triggers a substantial risk that a violent altercation will occur.186
B. What Does Any Act Mean in the Extortion Statute?
The Michigan Supreme Court has addressed the confusion as to
whether the crime of extortion requires a person to compel another to do
an act that is of serious consequence to the victim or just any act.187
In People v. Harris,188 a mechanic agreed to work on the defendants
truck for $400.189 While the mechanic was working on the truck in the
defendants driveway, it began to rain.190 The mechanic took shelter
close by on another neighbors porch.191 When the defendant saw that the
mechanic was not working on his truck in a prompt manner, the
defendant became upset and told the victim that he would silence him
if the victim did not start working on the truck.192 The victim responded
that he would rather meet his maker than capitulate to defendants
demands.193 This exchange upset a group of women on a nearby porch,
so they called the police.194 The defendant was arrested and charged with
various offenses, including extortion.195

182.
183.
184.
185.
186.
187.
188.
189.
190.
191.
192.
193.
194.
195.

Id.
Id. at 693, 837 N.W.2d at 428.
Id. at 69394, 837 N.W.2d at 428 (Kelly, J., dissenting).
Id. at 69394, 837 N.W.2d at 42829.
Id. at 701, 837 N.W.2d at 433.
People v. Harris, 495 Mich. 120, 122, 845 N.W.2d 477, 479 (2014).
Id. at 121, 845 N.W.2d at 479.
Id. at 123, 845 N.W.2d at 480.
Id.
Id.
Id. at 124, 845 N.W.2d at 480.
Id.
Id.
Id.

2015]

CRIMINAL LAW

615

A jury convicted the defendant of all charges, and the defendant filed
an appeal with the court of appeals alleging that there was insufficient
evidence to convict him of extortion.196 Specifically, the defendant
argued that he did not compel the victim to do an action that was serious
in nature or had significant value.197
The court of appeals affirmed the convictions, but it acknowledged
that precedent198 held that only serious acts could support a conviction
under the against his will prong of the extortion statute . . . .199 The
Michigan Supreme Court granted leave to appeal to determine what
elements a prosecutor would have to prove to convict a defendant of
extortion.200
The Michigan Supreme Court held that the defendant was properly
convicted of extortion.201 The court concluded that in its decision People
v. Fobb, the court of appeals added language that it should not have.202
The supreme court reasoned that the plain language of the extortion
statute was clear: the word any means just thatone or more without
specification.203 The court opined that the legislature intended to create a
broad net when defining what act would suffice for the extortion statute,
which is why it chose to use the word any.204
Additionally, the court held that the statute on its face placed citizens
on notice about what conduct is prohibited.205 Specifically, the court
noted that the statute included the word malicious, which provided a
scienter requirement and guidance as to what behavior was precluded
under the statute.206 Therefore, the court overruled the decisions in
196. Id.
197. Id. at 125, 845 N.W.2d at 481.
198. People v. Fobb, 145 Mich. App. 786, 787, 378 N.W.2d 600, 601 (1985). Fobb
holds that a person must compel an act that has serious consequences, even though the
plain language of the statute does not contain the word serious but only states any act.
Id.
199. Harris, 495 Mich. at 125, 845 N.W.2d at 481.
200. Id. at 126, 845 N.W.2d at 481.
201. Id. at 139, 845 N.W.2d at 489.
202. Id. at 131, 845 N.W.2d at 484.
203. Id. (citing RANDOM HOUSE WEBSTERS COLLEGE DICTIONARY (2d ed. 1997)).
204. Harris, 495 Mich. at 132, 845 N.W.2d at 485.
205. Id. at 13439, 845 N.W.2d at 48688.
206. Id. at 138, 845 N.W.2d at 488. The court looked to a non-extortion case, People v.
Boomer, 250 Mich. App. 534, 655 N.W.2d 255 (2002), that addressed the
constitutionality of a statute that prohibited a person from using vulgar language in front
of children. Harris, 495 Mich. at 136, 845 N.W.2d at 487. The Boomer court held that
statute was facially vague because it didnt provide fair notice about what conduct was
prohibited. Id. at 137, 845 N.W.2d at 487. A reasonable person would have varying
opinions about what obscene, vulgar, or insulting language was, and therefore, the statute
promoted arbitrary and discriminatory enforcement. Id. The court used the Boomer case

616

WAYNE LAW REVIEW

[Vol. 60:597

People v. Fobb and People v. Hubbard to the extent that those cases
required an act to have serious consequence to the victim.207 As a
result, the supreme court affirmed the court of appeals decision and
upheld the defendants convictions.208
C. When Do I Have to Know That I Possess a Dangerous Animal?
Before or After It Attacks and Injures a Person?
The timing of an owners knowledge is crucial in Michigans
owning a dangerous animal causing injury statute.209 In People v.
Janes, a pit bull attacked a child, biting her in the face and mauling her
legs.210 Although the pit bull was a bit aggressive with other dogs, the pit
bull had never threatened or attacked people during its six weeks at the
owners home.211 The pit bull was rescued from a local shelter and, to the
shelters knowledge, was a friendly dog.212 In fact, the previous owner
indicated that the dog had not attacked anyone or had any biting
incidents, but she did tell the sheriffs department that she was wary of
the dog because it had been abused before she adopted him as a rehab
pet.213 The defendant was charged with owning a dangerous animal
causing serious injury.214
The district court bound the case over and indicated that the crime
was a strict liability offense.215 In circuit court, the defendant argued that
the case should be quashed because the statute requires criminal intent,
and the prosecuting attorney failed to show that he had . . . knowledge
or notice of the dogs dangerous nature . . . .216 The circuit court agreed
with the defendant that the crime was not a strict liability offense but
found that the defendant had been negligent or reckless; therefore, the
court held that any future proceeding should be conducted with the mens

as a comparison to the extortion statute and found that the extortion statute was clear on
its face. Id. at 13639, 845 N.W.2d at 48788.
207. Harris, 495 Mich. at 139, 845 N.W.2d at 488.
208. Id. at 14041, 845 N.W.2d at 489.
209. People v. Janes, 302 Mich. App. 34, 37, 836 N.W.2d 883, 885 (2013).
210. Id. at 39, 836 N.W.2d at 885.
211. Id. at 39, 836 N.W.2d at 88586.
212. Id. at 39, 836 N.W.2d at 886.
213. Id. at 3940, 836 N.W.2d at 886.
214. Id. at 37, 836 N.W.2d at 885; see MICH. COMP. LAWS ANN. 287.323(2) (West
2015).
215. Janes, 302 Mich. App. at 40, 836 N.W.2d at 886.
216. Id.

2015]

CRIMINAL LAW

617

rea element included in the jury instructions.217 The prosecutor appealed

by leave.218
The court of appeals held that the crime was not a strict liability
offense, that there was a requirement to show criminal intent on the part
of the owner, and that the way to show intent was through the owners
knowledge that his animal met the definition of a dangerous animal
before the incident that resulted in charges.219 Using common law
principles and looking at the legislatures intent, the court reasoned that
just because a statute did not mention intent did not indicate the
legislatures desire to omit it.220 Actually, the court indicated that courts
will infer the presence of the element [of intent] unless a statute
contains an express or implied indication that the legislative body wanted
to dispense with it.221 Therefore, the court determined that the crime
was not a strict liability offense.222
The court then evaluated what the legislature intended when it said
that an animal meets the definition of a dangerous animal at the time of
the offense.223 The court reasoned that because the legislature used the
present tense meets and coupled that word with the present tense
attacks, it intended that the animal must qualify as a dangerous animal
before the incident and throughout the incident.224 The court rejected the
prosecutors argument that all animals are generally dangerous so that a
finding of prior knowledge of an animals dangerousness was not needed
to prove the crime.225 In fact, the court found the prosecutors argument
to fly in the face of American culture, where many people own animals,
especially dogs.226 The court indicated that it found it unthinkable that
the Legislature intended to subject law-abiding, well-intentioned citizens
to a possible four-year prison term if, despite genuinely and reasonably
believing their animal to be safe around other people and animals, the
animal nevertheless harms someone.227
Further, the court rejected the circuit courts indication that the
proper mens rea standard was gross negligence.228 The court indicated
217. Id.
218. Id.
219. Id. at 5354, 836 N.W.2d at 893 (emphasis added).
220. Id. at 4243, 836 N.W.2d at 887.
221. Id. at 43, 836 N.W.2d at 887 (quoting People v. Tombs, 472 Mich. 446, 697
N.W.2d 494 (2005)).
222. Janes, 302 Mich. App. at 53, 836 N.W.2d at 893.
223. Id. at 4353, 838 N.W.2d at 887893.
224. Id. at 4445, 836 N.W.2d at 888.
225. Id. at 46, 836 N.W.2d at 889.
226. Id. at 48, 836 N.W.2d at 890.
227. Id. at 48, 836 N.W.2d at 89091.
228. Id. at 52, 836 N.W.2d at 89192.

618

WAYNE LAW REVIEW

[Vol. 60:597

that the legislatures intent was to curtail the ownership of an animal that
the owner knows is dangerousnot to punish an owner for the negligent
keeping or handling of the animal.229 As such, the court found that the
prosecution must prove the following elements beyond a reasonable
doubt:
(1) [T]hat the [defendant] owned or harbored a dog or other
animal,
(2) [T]hat the dog or other animal met the definition of a
dangerous animal provided under MCL 287.321(a) before and
throughout the incident at issue,
(3) [T]hat [defendant] knew that the dog or other animal met the
definition of a dangerous animal within the meaning of MCL
287.321(a) before the incident at issue, and
(4) [T]hat the animal attacked a person and caused a serious
injury other than death.230
The court, therefore, remanded the case to the trial court for further
proceedings consistent with the courts opinion.231 But interestingly, in a
short but frank dissent, Judge Jansen indicated that the legislature
intended for the crime to be a strict liability offense.232 Judge Jansen
agreed that the present tense meets was used in the statute, but she
argued that the present tense suggests that an animal can meet the
definition of dangerous animal the very first time it bites or attacks a
person or another dog.233
D. Summer Break and Breaking the Law: A Student, a Substitute
Teacher, and Michigans CSC Statute
A substitute teacher claimed that Michigans third-degree criminal
sexual conduct statute did not apply to him because at the time of the
offense he was not actively teaching, as the school was on summer
break.234 In People v. Lewis, a substitute teacher (or contractual service
229. Id. at 53, 836 N.W.2d at 893.
230. Id. at 54, 836 N.W.2d at 893 (citing MICH. COMP. LAWS ANN. 287.323(2) (West
2015)).
231. Janes, 302 Mich. App. at 54, 836 N.W.2d at 893.
232. Id. at 54, 836 N.W.2d at 893 (Jansen, J., dissenting).
233. Id. at 55, 836 N.W.2d at 894.
234. People v. Lewis, 302 Mich. App. 338, 340, 839 N.W.2d 37, 40 (2013).

2015]

CRIMINAL LAW

619

provider, as the school district did not directly employ the defendant)
was accused of engaging in sexual acts with students from the school
district.235 The defendant was charged with violating the statute that
prohibits a student who is at least sixteen years of age and less than
eighteen years of age from engaging in sexual penetration with another
person who is either a substitute teacher or a contractual service
provider, among other roles of authority.236 After a mistrial and then the
second trial judge being disqualified from the case, the successor judge
requested that the parties brief the issue of whether the third-degree
criminal sexual conduct statute applied if the acts occurred over the
summer.237 After each party briefed the issue, the trial court dismissed
the case, holding that as a matter of law the defendant did not qualify as a
substitute teacher or contractual service provider under the statute
because it was undisputed that the acts occurred over summer break.238
The prosecution appealed.239
The court of appeals held that the statute applied even when the acts
occurred over summer break.240 The court reasoned that the purpose of
the law was to protect vulnerable students from abuse that may occur
because of positions of authority.241 The court noted that the teachers
relationship and authority is what the statute focused onnot the timing
of the penetration.242 Therefore, the court of appeals reversed the trial
courts decision and remanded the case for reinstatement of the
charges.243
E. Dont Take Away My PIP Benefits: Unlawfully Taking Away and
How It Affects Insurance Benefits
In a case of statutory interpretation, the Michigan Supreme Court
clarified that the mens rea element of unlawful taking away is present in
Michigans joyriding statute, even if the language does not expressly
mention intent.244 In Rambin v. Allstate Insurance. Co., a plaintiff was
severely injured when the motorcycle he was operating was involved in a
235. Id. at 339, 839 N.W.2d at 3940.
236. Id. at 34344, 839 N.W.2d at 4142 (citing MICH. COMP. LAWS ANN. 750.520d
(1)(e) (West 2015)).
237. Lewis, 302 Mich. App. at 340, 839 N.W.2d at 40.
238. Id.
239. Id.
240. Id. at 34748, 839 N.W.2d at 4344.
241. Id. at 347, 839 N.W.2d at 43.
242. Id. at 347, 839 N.W.2d at 4344.
243. Id. at 348, 839 N.W.2d at 44.
244. Rambin v. Allstate Ins. Co., 495 Mich. 316, 320, 852 N.W.2d 34, 3536 (2014).

620

WAYNE LAW REVIEW

[Vol. 60:597

car accident.245 The plaintiff was seriously injured, and he filed a lawsuit
seeking benefits.246 The car involved was uninsured, and the plaintiff
admitted that the motorcycle he was driving at the time of the accident
was owned and registered to an unknown third party.247 This unknown
third party had a vehicle insured under Allstate Insurance, so the plaintiff
argued that he should receive PIP benefits from Allstate.248 In the
alternative, the plaintiff argued that if Allstate was not the responsible
insurer, then Titan Insurance should pay him PIP benefits because the
claim was assigned to it through the Michigan Assigned Claims
Facility.249 Both insurance companies filed motions for summary
disposition, arguing that the plaintiff was precluded from benefits.250
Titan alleged that the plaintiff was precluded from receiving PIP benefits
because the plaintiff was involved in the theft of the motorcycle; Allstate
alleged that the plaintiff was precluded from benefits because he had
taken the motorcycle unlawfully.251
The plaintiff, in turn, filed a summary disposition motion claiming
that he did not take the motorcycle unlawfully or with knowledge that he
lacked authority to take it.252 To fully understand the courts opinion, a
review of the facts is needed.
The plaintiff claimed that a friend offered to loan him a bike for a
group ride that night.253 The plaintiff claimed that he went to his friends
house, and the friend gave him the keys to the bike and told him that he
could use it.254 According to the plaintiff, he collided with an uninsured
motor vehicle.255 The court found it interesting that the plaintiff never
called the police when the accident occurred, despite the plaintiffs
serious injuries.256 Further, the plaintiff and his club-member friend left
the motorcycle on the side of the road and fled the scene.257 When
questioned by the police, the plaintiff first denied having any connection

245. Id. at 321, 852 N.W.2d at 36.

246. Id. at 32021, 852 N.W.2d at 36.
247. Id. at 321, 852 N.W.2d at 36. The unknown third partys motorcycle was stolen
on August 4, 2009. Id. at 322, 852 N.W.2d at 37. Nineteen days later the plaintiff was
involved in a serious accident on the motorcycle. Id. at 323, 852 N.W.2d at 37.
248. Id. at 321, 852 N.W.2d at 36.
249. Id.
250. Id. at 322, 852 N.W.2d at 37.
251. Id.
252. Id. at 32324, 852 N.W.2d at 3738.
253. Id. at 323, 852 N.W.2d at 37.
254. Id.
255. Id.
256. Id. at 334, 852 N.W.2d at 43.
257. Id. at 335, 852 N.W.2d at 43.

2015]

CRIMINAL LAW

621

with the motorcycle.258 But the plaintiff recanted that story and indicated
that a fellow motorcycle club member, whom he had never met before
that night, loaned him the bike.259 When asked about the motorcycle
member, the plaintiff did not have his phone number, did not know
where he lived, and did not try to contact him after the accident.260
The trial court granted Allstate and Titans motions for summary
judgment.261 The court of appeals reversed the trial courts summary
judgment and found that the plaintiff did not take the motorcycle
unlawfully under the Michigan joyriding statute.262 The court made a
factual finding that from the drivers perspective there was no unlawful
taking, and based on the record, there was no genuine issue of material
fact that the plaintiff did not take the motorcycle unlawfully.263 Allstate
applied for leave to appeal, and the Michigan Supreme Court requested
that the parties address the following issue:
[W]hether the plaintiff took the motorcycle . . . unlawfully
within the meaning of MCL 500.3113(a), and specifically,
whether taken unlawfully under MCL 500.3113(a) requires the
person . . . using [the] motor vehicle or motorcycle to know
that such use has not been authorized by the vehicle or
motorcycle owner . . . and, if so, whether the Court of Appeals
erred in concluding that plaintiff lacked such knowledge as a
matter of law given the circumstantial evidence presented in this
case.264
The Michigan Supreme Court began its analysis by evaluating
whether the crime of taking unlawfully under the applicable statute was a
strict liability or general intent crime.265 The court held that criminal
jurisprudence principles require a mens rea requirement unless the
legislature intends to dispense with it.266 And in the unlawful taking
statute, the legislature had used the phrase without an intent to steal,
which was the legislatures way of removing the specific intent to
258. Id.
259. Id.
260. Id. at 335, 852 N.W.2d at 4344. The court made note that the plaintiffs story
could lead a jury to conclude that he knew the motorcycle was stolen. Id. at 334, 852
N.W.2d at 43.
261. Id. at 323, 852 N.W.2d at 37.
262. Id. at 324, 852 N.W.2d at 38 (citing MICH. COMP. LAWS ANN. 500.3113 (a) (West
2015)).
263. Rambin, 495 Mich. at 324, 852 N.W.2d at 38.
264. Id. at 325, 852 N.W.2d at 38 (alterations in original).
265. Id. at 325, 852 N.W.2d at 3941.
266. Id. at 32930, 852 N.W.2d at 41.

622

WAYNE LAW REVIEW

[Vol. 60:597

permanently deprive an owner of his or her property.267 It was not, the

court reasoned, the legislatures intent to completely eliminate intent
altogether.268 In fact, the court opined that if the legislature wanted to
eliminate intent altogether, it would have used the phrase without regard
to intent.269 Instead, it retained the mens rea element to take without
authority or intent to use without authority, but removed the specific
intent to permanently deprive element.270 The court stated that [f]or a
person to take personal property without the authority of the actual
owner, there must be some evidence to support the proposition that the
person from whom he or she received the property did not have the right
to control or command the property.271
Additionally, the court found that the court of appeals erred when it
engaged in fact finding.272 Specifically, the court found that there were
genuine issues of material fact with regard to the unlawful taking.273 The
court stated that there was compelling evidence to counter plaintiffs
claim that he was not complicit in the unlawful taking of the
motorcycle.274 As a result, the court affirmed the court of appeals
holding that the crime was not a strict liability offense, reversed the court
of appeals grant of summary judgment, and remanded the case for
further proceedings.275
III: JUDGES AND LAWYERSOUR BEHAVIOR MATTERS
A. Blurred Judicial Lines: When Professional and Personal Conduct
Merge
The Judicial Tenure Commission (JTC) filed a complaint against
sitting Third Circuit judge, Deborah Ross Adams (respondent).276 In its
complaint, the JTC alleged that the judge had engaged in perjury,
267. Id. at 331, 852 N.W.2d at 4142.
268. Id.
269. Id. at 330, 852 N.W.2d at 41.
270. Id. at 33031, 852 N.W.2d at 4142.
271. Id. at 332, 852 N.W.2d at 42.
272. Id. at 337, 852 N.W.2d at 44.
273. Id.
274. Id. at 334, 852 N.W.2d at 43.
275. Id. at 33637, 852 N.W.2d at 44.
276. In re Adams, 494 Mich. 162, 165, 833 N.W.2d 897, 899 (2013). As procedural
background, the JTC filed a formal complaint against the respondent on April 17, 2012.
Id. At the same time, the JTC filed a request for the appointment of a master. Id. at 166,
833 N.W.2d at 900. The Honorable Donald G. Miller was appointed the master, and a
hearing was held from September 1117, 2012. Id. On October 9, 2012, the master filed
his findings of fact with the JTC. Id.

2015]

CRIMINAL LAW

623

forgery, and numerous misrepresentations to the commission.277 These

charges stemmed from a case in the Oakland County Circuit Court where
the respondent was the defendant in a divorce case.278 During the case,
and while represented by counsel, the respondent repeatedly called
presiding Judge Mary Brennans chambers.279 When the judge
questioned the respondent about her conduct under oath, the respondent
denied contacting the judge, the judges staff, or anyone from the judges
office.280 When Judge Brennans staff testified under oath that they had
repeatedly had contact with the respondent and informed the respondent
that her communication was improper, the respondent once again denied
that she had any contact with the judge, her staff, or anyone from her
office while respondent was represented by counsel.281 Upon review of
these facts, the JTC found that the respondents testimony lacked
credibility and that the respondent had made false statements while under
oath.282
Secondly, the respondent was charged with forgery.283 The
respondent was accused of filing pleadings and signing her former
attorneys name to those pleadings without the attorneys permission.284
The respondent admitted that she signed the documents, but she insisted
that she had her attorneys permission.285 The respondents former
attorney testified that she did not sign the documents, and she did not
give the respondent any permission to file or sign the pleadings.286
Further, the court considered an e-mail that the respondent sent to her
former attorney indicating that she wanted her permission to file
pleadings in the court.287 The court reasoned that if the respondent had
permission to sign and file documents on her attorneys behalf, the
respondent would not have needed to send an email asking for
277. Id. at 165, 833 N.W.2d at 900.
278. Id.
279. Id.
280. Id.
281. Id.
282. Id. at 171, 833 N.W.2d at 903.
283. Id. at 173, 833 N.W.2d at 904.
284. Id.
285. Id.
286. Id. at 17374, 833 N.W.2d at 904. In contrast, during the masters review of the
facts, he found that there was insufficient evidence to find that the respondent violated
the forgery statute. Id. at 167, 833 N.W.2d at 90001. Specifically, the master found that
the respondent lacked intent to injure or defraud. Id. at 16768, 833 N.W.2d at 901. The
JTC disagreed with the masters findings on this charge. The JTC did not have to find
that a criminal statute was violated to find that judicial misconduct occurred. Id. at 168
n.5, 833 N.W.2d at 901 n.5.
287. Id. at 17475, 833 N.W.2d at 90405.

624

WAYNE LAW REVIEW

[Vol. 60:597

permission.288 Again, the JTC found that the respondents testimony was
not credible and that she had committed forgery.289
Finally, the respondent was charged with numerous allegations of
having lied to the JTC.290 The JTC found that the respondent lied about
contacting Judge Brennans office, signing documents without her
attorneys permission, and other misrepresentations surrounding her
testimony about the case.291 As a result of the JTCs findings, the JTC
recommended that the respondent be suspended without pay and
assessed costs in the amount of $8,498.40.292
The Michigan Supreme Court agreed with all of the JTCs findings,
but the supreme court did not agree with the JTCs sanction.293 In its
review of the JTCs findings, the court looked at whether there was a
pattern and practice of misconduct, and it found that there was.294 The
court also found that the respondent used her position as a sitting judge
as leverage, committed misconduct that was prejudicial to the
administration of justice, and engaged in conduct that was premeditated
or deliberated.295 The court was particularly concerned with how the
respondent lied under oath.296 The court stated that testifying falsely
under oath is entirely incompatible with judicial office and warrants
removal.297 Therefore, the Michigan Supreme Court found that the JTC
sanction did not sufficiently address the egregiousness of the
respondents behavior.298 Hence, the supreme court ordered the
respondent to pay costs of $8,498.40 and removed her from judicial
office.299

288. Id. at 17475, 833 N.W.2d at 905.

289. Id. at 175, 833 N.W.2d at 905.
290. Id.
291. Id.
292. Id. at 170, 833 N.W.2d at 902.
293. Id. at 164, 833 N.W.2d at 899.
294. Id. at 18081, 833 N.W.2d at 90708. Specifically the court stated that the
respondent continued to shirk any responsibility for her wrongdoings or express any
indication of remorse. Id. at 181, 833 N.W.2d at 908.
295. Id. at 18183, 833 N.W.2d at 90809.
296. Id. at 181, 833 N.W.2d at 908.
297. Id. at 18485, 833 N.W.2d at 90910 (quoting In re Justin, 490 Mich. 394, 419,
809 N.W.2d 126, 139 (2012)).
298. Id. at 185, 833 N.W.2d at 909.
299. Id. at 187, 833 N.W.2d at 911. Justice McCormack dissented, highlighting that
the JTCs recommendation of a 180-day suspension was the more appropriate sanction
because the misconduct arose from a personal divorce case that was emotionally difficult
for the respondent. Id. at 188, 833 N.W.2d at 912 (McCormack, J., dissenting). Further,
Justice McCormack opined that the misconduct never carried over to the respondents
duties as a judicial officer. Id. Justice McCormack, therefore, thought that the supreme

2015]

CRIMINAL LAW

625

B. What Say You? A Judges, a Prosecutors, and a Defense Attorneys

Statements Are All OK, Says the Court of Appeals!
In an unpublished opinion that offers a lot of guidance to
practitioners, the court of appeals clarified what phraseology and
terminology is appropriate for the courtroom. It found that when a judge
clarified what a Cobbs agreement was to the jury, he did not pierce the
veil of judicial impartiality.300 The court reasoned that the defendant
waived his right to preserve the claim when the judge asked if the
defendant agreed with the courts final jury instructions, and the
defendant twice answered that he did.301 Further, the court indicated to
the jury that the judges comments or questions were not evidence.302
Finally the court noted that the evidence against the defendant was so
overwhelming that the judges conduct could not have unduly influenced
the jury.303
The defendant then argued that the trial court should have instructed
the jury on the lesser-included offense of manslaughter.304 The court
addressed the issue even though it made a finding that the defendant
waived any right to the error because he expressed satisfaction with the
jury instructions.305
The court found that an instruction on a necessarily included lesser
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.306 The court reasoned
that the instruction was not justified because the evidence did not support
itspecifically, the evidence showed that the shooting was not an
accident but rather that the defendant pointed the gun at the victim and
shot him.307 The court reasoned that the defendants theory of the case
that someone else committed the crimedid not comport with the
involuntary manslaughter instruction, and a rational view of the evidence
would not support it.308 Therefore, the court found that the trial court did
court should have paid more deference to the JTCs recommendation of suspension for
180 days. Id. at 189, 833 N.W.2d at 912.
300. People v. Jessie, No. 310869, 2014 WL 2751047, at *2 (Mich. Ct. App. June 17,
2014).
301. Id. at *1.
302. Id. at *3.
303. Id.
304. Id.
305. Id.
306. Id. at *4 (emphasis added) (quoting People v. Cornell, 466 Mich. 335, 357, 646
N.W.2d 127, 139 (2002)).
307. Id.
308. Id.

626

WAYNE LAW REVIEW

[Vol. 60:597

not commit plain error when it did not give the involuntary manslaughter
instruction.309
The defendant also claimed that the prosecutor committed
prosecutorial misconduct during closing argument.310 The court again
noted that the defendant failed to preserve this issue for appeal, but it still
addressed the argument.311 The court opined that a prosecutor may not
vouch for the credibility of witnesses, but a prosecutor may [a]rgue the
evidence and all reasonable inferences from the evidence as they relate to
their theory of the case.312 In that light, the court found that when the
prosecutor used the terms I submit to you or I think, the prosecutor
was not making a personal statement as to the belief of the witnesses but
rather was making an argument based on the reasonable inferences from
the evidence.313
Similarly, the defendant also contested his attorneys effectiveness.
The defendant claimed that his attorney was ineffective for several
reasons, all of which the court found meritless.314 The court was
particularly clear that counsel was not ineffective for failing to advance
meritless arguments or raise futile objections . . . .315
The court was also unpersuaded by the defendants arguments that
the sentencing offense variables (OV) were scored improperly.316 The
court reasoned that the defendant was the leader of the crime (OV 14),
the defendant did interfere with the administration of justice when he hid
evidence after the crime (OV 19), and he also was properly scored points
for causing a life-threatening wound to the deceased victims head (OV
4).317 Ultimately, the court found all of the defendants arguments
unpersuasive and affirmed the trial courts order.318

309. Id.
310. Id. at *5.
311. Id.
312. Id. (quoting People v. Seals, 285 Mich. App. 1, 22, 776 N.W.2d 314, 328 (2009)).
313. Id. at *56.
314. Id. at *7.
315. Id.
316. Id.
317. Id. at *89. The court explained that because the victim died and the defendant
was charged with murder, he not only killed the victim, but he also caused a physical
injurya gunshot wound to the head. Id. at *8. Because homicide was the charged
offense, the defendant could not receive the 100 points for the death, but the defendant
could receive 25 points for causing a life threating injury. Id.
318. Id. at *10.

2015]

CRIMINAL LAW

627

C. When It Doesnt Go Your Way, Blame It on Your Attorney (and Other

Reasoning the Court Refuses to Adopt)
In a short, but very clear opinion, the Michigan Court of Appeals
addressed a disgruntled defendants claims of ineffective assistance of
counsel. In People v. Herron, the defendant claimed that his attorney
failed to object to a jury instruction, failed to properly advise him of plea
agreement and sentencing implications, and failed to properly reveal
inconsistencies in a witnesss testimony.319
The court disagreed with all of the defendants claims holding that
the defendants claims were not based in evidence.320 In fact, the court
stated multiple times that the defendant was trying to expand the record
with his offers of proof.321 Further, the court indicated that it would not
second-guess an attorneys trial strategy.322 Therefore, the defense
attorneys judgment to not draw attention to a witnesss statement about
the defendants previous criminal history was trial strategynot
ineffective assistance of counsel.323 Further, the court noted that the
defendants attorney was not ineffective for failing to make futile
objections.324 Ultimately, the court reasoned that an attorney is in the best
position to make decisions about trial strategy, and the court was not
going to second-guess those decisions using hindsight.
IV. IF THE STATUTES LANGUAGE IS SO PLAIN, WHY ALL THE
ANALYSIS?
A. The Uniform Criminal Extradition Act (UCEA) and Juvenile
Applicability
In a case of first impression, the Michigan Court of Appeals
solidified that the UCEA does apply to juveniles.325 In In re Boynton, a
Michigan juvenilewho was twelve years old at the timewent to visit
his godfather in Georgia.326 While the juvenile was in Georgia, Georgia
authorities began investigating him for sexually molesting a four-year319. People v. Herron, No. 310188, 2013 WL 4436875, at *24 (Mich. Ct. App. Aug.
20, 2013).
320. Id.
321. Id. at *2, *45.
322. Id. at *4.
323. Id. at *3.
324. Id. at *2 (citing People v. Crews, 299 Mich. App. 381, 401, 829 N.W.2d 898,
90708 (2013)).
325. In re Boynton, 302 Mich. App. 632, 635, 840 N.W.2d 762, 763 (2013).
326. Id. at 635, 840 N.W.2d at 764.

628

WAYNE LAW REVIEW

[Vol. 60:597

old child.327 Before the conclusion of the investigation, the juvenile

returned to Michigan.328 Several months later, Georgia authorities sought
the juveniles extradition from Michigan to Georgia to face charges of
aggravated child molestation.329 Because the juvenile was on probation in
Michigan for a domestic violence charge against his mother, the court
began the extradition procedures in May 2011.330 The juvenile was
appointed counsel, and counsel challenged the extradition on four issues:
first, the juvenile claimed that the UCEA did not apply to juveniles
charged with delinquent behavior; second, the juvenile claimed that he
was not a fugitive of justice under the UCEA; third, the juvenile claimed
that because the extradition documents contained an error, the documents
were inaccurate and could not be honored in an extradition proceeding;
and finally, the juvenile argued that extraditing him to Georgia would be
cruel and unusual punishment.331
The court held that the UCEA did apply to the juvenile.332 The court
reasoned that the plain language of the UCEA statuteand the
accompanying federal statutesall contained the word person as it
related to extradition.333 The court also reviewed case law from other
jurisdictions and found that Texas, the District of Columbia, and
Montana all held that juveniles are not to be exempted from the
UCEA.334 While the defendant argued that a delinquency proceeding was
not a criminal proceeding under the UCEA, the court disagreed and
found that the nature of the charging procedure used by the demanding
state [the state holding the warrant] is irrelevant.335 Therefore, the court
found that the UCEA applied to the defendant.336
The court also found that the juvenile was a fugitive from justice,
and again, the UCEA did apply to him.337 In support, the court held that
the manner in which a person has left the state has little bearing on the
fugitive status if the person isnt willing to return on his own.338 Hence,
the court found that the juvenile was a fugitive from Georgia, even if he

327.
328.
329.
330.
331.
332.
333.
334.
335.
336.
337.
338.

Id. at 635, 840 N.W.2d at 764.

Id.
Id.
Id. at 636, 840 N.W.2d at 764.
Id. at 63637, 840 N.W.2d at 764.
Id. at 64344, 840 N.W.2d at 768.
Id. at 63742, 840 N.W.2d at 76567.
Id. at 64143, 840 N.W.2d at 76768.
Id. at 64346, 840 N.W.2d at 76869.
Id. at 647, 840 N.W.2d at 770.
Id. at 64649, 840 N.W.2d at 77071.
Id.

2015]

CRIMINAL LAW

629

did leave the state after a brief vacation and under his mothers
guidance.339
Further, the court did not agree with the juveniles argument that an
inaccuracy in the extradition documents made the extradition warrant
false.340 Specifically, the court noted that the misstated information on
the extradition documents was not even required on an extradition
demand.341 Therefore, any alleged inaccuracies were inconsequential.342
Finally, the court also denied the juveniles argument that extraditing
him would constitute cruel and unusual punishment.343 The juvenile
argued that he was only fifteen years old and removal to Georgia would
take him away from his family at a tender age.344 The court explained
that the United States Constitution and the Michigan Constitution both
contain cruel and unusual punishment provisions, but both require that
the defendant be subject to punishment.345 And because the juvenile had
not yet been prosecuted and found guilty, there was no punishment to
trigger a cruel and unusual punishment argument.346 In sum, the court
rejected the entirety of the juveniles arguments.
B. How Much Does Your Crime Cost?What Did the Legislature Intend
with Any Cost?
The Michigan Supreme Court has spoken: gone are the days when a
court could randomly and without reason assess a court cost under
MCLA section 769.1k (court-cost statute), which addressed criminal
court costs.347
In 2011, a defendant pled guilty to obtaining a controlled substance
by fraud.348 The defendant was sentenced to imprisonment and assessed
various court costs.349 Of issue in this case was whether the court could
assess $1,000 in unspecified court costs.350 The prosecutor alleged that
even though the specific statute under which the defendant pled guilty
did not allow the court to impose costs, the court-cost statute provided
the court with the independent authority to assess any cost that the court
339.
340.
341.
342.
343.
344.
345.
346.
347.
348.
349.
350.

Id.
Id. at 64853, 840 N.W.2d at 77173.
Id.
Id.
Id. at 65255, 840 N.W.2d at 77374.
Id.
Id. (emphasis added).
Id.
MICH. COMP. LAWS ANN. 769.1k (West 2015).
People v. Cunningham, 496 Mich. 145, 14748, 852 N.W.2d 118, 120 (2014).
Id.
Id.

630

WAYNE LAW REVIEW

[Vol. 60:597

may have incurred.351 The defense argued that the court-cost statute only
allowed the court to impose costs that the legislature had already
separately authorized in other statutes.352
The court held that the court-cost statute only provided the court
authority to impose costs that were authorized in other separate
statutes.353 The court reasoned that the legislature must have intended
any cost to mean costs that the legislature had separately authorized.354
Specifically, the court reasoned that the statute that requires the
defendant to reimburse the state for prosecution costs would be null
because all reimbursement costs could be assessed under the any cost
provision.355 Instead, the court reasoned that the legislatures decision to
enact many provisions that provide courts the power to issue costs for
certain circumstances shows that it did not intend to do a useless thing
by providing for certain costs when it had a broad catchall any cost.356
Rather, the court reasoned that it would seem logical that the legislature
viewed the court-cost statute as incorporating by reference all the
possible statutory costs that a Michigan court has available at a criminal
sentencing, instead of having to list each cost.357 Therefore, the supreme
court reversed the decision of the court of appeals and vacated the order
assessing $1,000 dollars in court fees.358
C. Crime Victims Rights FundNot to Punish, Just to Help
Timing is everything in life, and when a defendant robbed a bank in
March 2010, the current crime victims rights assessment was $60 for a
felony.359 But times changed, and when the bank robber was sentenced in
2011, the assessment had increased to $130 dollars for a felony.360 The
bank robber alleged that the increase in the assessment was an increase
of his punishment, violating the Ex Post Facto Clauses of the Michigan
and United States Constitutions.361
The court rejected the defendants argument and held that the Crime
Victims Rights statute was a civil remedy not so punitive in effect or
351.
352.
353.
354.
355.
356.
357.
358.
359.
360.
361.

Id. at 15154, 852 N.W.2d at 12223 (emphasis added).

Id. at 15354, 852 N.W.2d at 123.
Id. at 15860, 852 N.W.2d at 12627.
Id.
Id. at 15758, 852 N.W.2d at 125.
Id. at 157, 852 N.W.2d at 125.
Id. at 15759, 852 N.W.2d at 12526.
Id. at 15960, 852 N.W.2d at 12627.
People v. Earl, 495 Mich. 33, 35, 845 N.W.2d 721, 724 (2014).
Id.
Id.

2015]

CRIMINAL LAW

631

purpose as to render its intention uncivil.362 The court reasoned that the
very text of the word assessment reflected legislative intent to distinguish
the cost from a fine or punishment.363 Further, the court considered the
timing and purpose of the assessment and found that it indicated nonpunitive measures.364 In fact, the supreme court went through the
Mendoza-Martinez factors to assess whether the crime victims act has a
punitive purpose or effect.365
After careful review of all of the factors, the court determined that
the assessment was not a criminal fine, did not have a punitive purpose,
and was not excessive in its purpose.366 Therefore, the court affirmed the
judgment of the court of appeals and found that the Crime Victims
Rights Act does not violate the Ex Post Facto Clauses.367
D. Making Your Victim Whole: What Does Full Restitution Mean?
A defendant is responsible for making his or her victim whole, and
that includes the travel expenses that the victim may have to incur to
secure his or her stolen property.368 In People v. Garrison,369 the
Michigan Supreme Court upheld a trial courts award of nearly $1,000
dollars in travel expenses to secure four snowmobiles stolen from a
victims vacation home in Cheboygan, Michigan.370
The court held that the Crime Victims Rights Act and Michigans
general restitution statute authorize courts to provide full restitution to
a crime victim.371 The court acknowledged that the restitution was
limited to a victims losses due to the defendants course of conduct that
gave rise to the conviction . . . .372 Although the court acknowledged
that the legislature never expressly mentioned travel expenses in any
statutory subsections governing property loss, the court opined that
nothing in the statutes text indicated that only expressly mentioned
losses were permitted.373 Instead, the court stated that the legislature
362. Id. at 4950, 845 N.W.2d at 731.
363. Id. at 3941, 845 N.W.2d at 726 (emphasis added).
364. Id. at 4144, 845 N.W.2d at 72728.
365. Id. at 4344, 845 N.W.2d at 728 (citing Kennedy v. Mendoza-Martinez, 372 U.S.
144, 16869 (1963)).
366. Id. at 4350, 845 N.W.2d at 72831.
367. Id. at 4850, 845 N.W.2d at 731.
368. People v. Garrison, 495 Mich. 362, 365, 852 N.W.2d 45, 46 (2014).
369. Id.
370. Id. at 36566, 852 N.W.2d at 46.
371. Id. at 37375, 852 N.W.2d at 51.
372. Id. at 372, 852 N.W.2d at 50 (quoting MICH. COMP. LAWS ANN. 780.766(2)
(West 2015)).
373. Id. at 36873, 852 N.W.2d at 4850.

632

WAYNE LAW REVIEW

[Vol. 60:597

unambiguously wanted the courts to order full restitution, and

therefore, the subsections should not be read as an exhaustive list of what
types of restitution were available.374 Therefore, the court reversed the
decision of the court of appeals and reinstated the trial courts restitution
award of nearly $1,000 dollars in travel expenses.375
E. Sentencing Guidelines: To Score or Not to Score?That Is the
Question
The court of appeals has clarified that when a father fails to pay child
support, he cannot be punished for that offense in the sentencing
guideline variables OV 16 or OV 19, unless extenuating facts are
present.376 In People v. Hershey, a father who had child support
arrearages of nearly $6,500 was sentenced for failure to pay child
support.377 The defendant was sentenced to five months in jail and
twenty-four months of probation.378 After sentencing, the defendant filed
a motion for resentencing arguing that OV 16 and OV 19 were
improperly scored.379
First, the defendant argued that OV 16 was improperly scored.380 OV
16 requires the court to score [five] points when property that had a
value of $1,000.00 or more but not more than $20,000.00 is obtained,
damaged, lost, or destroyed.381 The defendant argued that OV 16 did
not apply to his case because failure to pay child support did not
constitute property that was obtained, damaged, lost, or destroyed.382
The defendant argued, and the court agreed, that because the defendant
was unable to pay the child support and did not have any assets, it could
not be said that he retained or obtained money, as referenced in OV
16.383 The court held that an obligation to pay money does not translate
to possession of the money owed, explaining that the defendant could
not have lost the money because he never had it to begin with.384 The
court further reasoned that the intention of OV 16 was to address tangible
374. Id.
375. Id. at 37375, 852 N.W.2d at 51.
376. People v. Hershey, 303 Mich. App. 330, 33233, 844 N.W.2d 127, 131 (2013).
377. Id. at 333, 844 N.W.2d at 131.
378. Id.
379. Id. at 33235, 844 N.W.2d at 13132.
380. Id. at 334, 844 N.W.2d at 131.
381. Id. at 337, 844 N.W.2d at 133 (quoting MICH. COMP. LAWS ANN. 777.46(1)(c)
(West 2015)).
382. Id. at 33435, 844 N.W.2d at 132.
383. Id. at 33637, 844 N.W.2d at 133.
384. Id. at 338, 844 N.W.2d at 134.

2015]

CRIMINAL LAW

633

property, not a persons loss of an expectation.385 Therefore, under a

preponderance of the evidence standard, the court held that the trial court
erred when it scored five points under OV 16.386
Moreover, the court reached the same conclusion when it reviewed
OV 19.387 The defendant also argued that OV 19 was improperly scored
because he did not interfere with the administration of justice.388 The
court explained that OV 19 applies if there was a threat to the security
of a penal institution or court or interference with the administration of
justice or the rendering of emergency services. The trial court must
assess [ten] points for OV 19 if [t]he offender otherwise interfered with
or attempted to interfere with the administration of justice.389 The court
examined the plain language of the statute and determined that the
defendant did not hinder any part of the judicial process when he failed
to pay.390 In fact, the court held that even when the defendant violated his
probation, he did not hinder any part of the trial courts process.391 The
court added that it was unaware of any case law that suggested that a
probation violation was an interference with the administration of
justice.392
Finally, the court had to determine if the defendant waived his right
to address these issues because he failed to object to the scoring at
sentencing.393 The court held that while the defendant did indicate that he
did not have any additions or corrections to the presentence report, the
defendant was not specifically asked if he agreed with OV 16 or OV
19.394 Rather, the defendant was posed with a broad question.395
Moreover, the court relied on a Michigan statute that provides defendants
three separate opportunities to raise scoring errors: at sentencing, in a
motion for resentencing, or in a motion to remand.396 As such, the court
reasoned that because the defendant raised the scoring issue in a motion
for resentencing, he preserved the issue for appeal.397 Therefore, the

385. Id. at 34041, 844 N.W.2d at 135.

386. Id.
387. Id. at 342, 844 N.W.2d at 135.
388. Id.
389. Id. at 342, 844 N.W.2d at 13536 (alteration in original) (citations omitted)
(quoting MICH. COMP. LAWS ANN. 777.49 (West 2015)).
390. Id. at 34041, 844 N.W.2d at 135.
391. Id. at 34446, 844 N.W.2d at 137.
392. Id. at 34447, 844 N.W.2d at 13738.
393. Id. at 34647, 844 N.W.2d at 138.
394. Id. at 35152, 844 N.W.2d at 141.
395. Id.
396. Id.
397. Id. at 35355, 844 N.W.2d at 142.

634

WAYNE LAW REVIEW

[Vol. 60:597

court overruled the trial courts sentence and remanded the case for
resentencing under the proper guidelines.398
F. How Old Am I? The Importance of Age Calculation in Criminal
Sentencing
The Michigan Supreme Court clarified an issue that permeates all
facets of the law: How do the Michigan courts calculate age? In People
v. Woolfolk, the court of appeals was faced with determining when a
person reaches their ageor stated another wayhow does the
Michigan judicial and legislative branches calculate birthday?399
The defendant was found guilty of first-degree murder and felony
firearm.400 All parties agree that the murder occurred on the evening
before the defendants eighteenth birthday.401 The trial court sentenced
the defendant to a mandatory life sentence plus two years for the felony
firearm conviction.402 The defendant filed an appeal claiming that the
mandatory life sentence was cruel and unusual punishment in light of the
Supreme Courts opinion in Miller v. Alabama.403 The defendant also
claimed that his trial counsel was ineffective for not objecting to the
defendants pre-arrest delay and not objecting to the use of a single photo
for identification purposes.404
The court of appeals affirmed the defendants convictions but held
that the defendant was entitled to resentencing under Miller.405 First, the
court addressed the defendants delay-in-arrest claim and found that the
defendant was arrested once the prosecution had sufficient evidence and
that the delay was minimal and did not cause actual and substantial
prejudice.406 The court reasoned that because the prosecution had to
interview an out-of-state witness, there were jurisdictional and
evidentiary issues that caused the delay, and the prosecution should wait
for the collection of sufficient evidence before charging a suspect, even
when that wait is extended by the disappearance of a key witness.407
398. Id.
399. People v. Woolfolk, 304 Mich. App. 450, 45859, 848 N.W.2d 169, 175 (2014).
400. Id. at 45152, 848 N.W.2d at 171.
401. Id. at 45253, 848 N.W.2d at 172.
402. Id.
403. Id. at 45859, 848 N.W.2d at 175 (citing Miller v. Alabama, 132 S. Ct. 2455
(2012)).
404. Id. at 45358, 848 N.W.2d at 17274.
405. Id. at 50607, 848 N.W.2d at 200.
406. Id. at 45657, 848 N.W.2d at 174.
407. Id. at 45457, 848 N.W.2d at 17374 (citing People v. Herndon, 246 Mich. App.
371, 39091, 633 N.W.2d 376, 39192 (2001)).

2015]

CRIMINAL LAW

635

The court also disagreed with the defendants claim that a threemonth delay between the felony complaint and arraignment was
unreasonable.408 The court noted that it found the delay minimal, and the
defendant had not shown how the delay resulted in actual and substantial
prejudice to his case.409
Additionally, the defendant claimed that his attorneys failure to
object to the polices use of a single photo of him for identification
purposes was ineffective assistance of counsel.410 The court again
disagreed with the defendant and did not find that the defendants
attorney was ineffective.411 In fact, the court held that the witness already
knew the identity of the defendant as the shooter, and therefore, the use
of the photograph was only to confirm the identity of the person the
witness had already identified.412 Therefore, the court reasoned that the
use of the picture did not create a likelihood of misidentification, and any
objection from the defendants defense attorney would have been
meritless.413
Finally, the court addressed the defendants argument that a
mandatory life sentence was cruel and unusual punishment.414 The court
began its analysis by reviewing the Miller opinion, which held that the
court cannot sentence juveniles to life without parole.415 The court
acknowledged that under Miller, a juvenile is someone who is less than
17 years of age . . . [but also] between 17 and 18 years of age.416 The
court, however, immediately noted that neither the Miller case, the Carp
case, nor any statute addressed how to calculate when the defendant
reaches the age of eighteen.417 Hence, the court engaged in a detailed,
historical view of the competing age-calculation methods: the common
law birthday rule or the birthday rule.418
The common law birthday rule states that a person reaches their age
at the first moment of the day prior to the anniversary date of his [or
her] birth.419 The historical reasoning for the common law birthday rule
408. Id. at 45657, 848 N.W.2d at 174.
409. Id.
410. Id.
411. Id.
412. Id. at 45758, 848 N.W.2d at 174.
413. Id. at 45658, 848 N.W.2d at 17475.
414. Id. at 45859, 848 N.W.2d at 175.
415. Id.
416. Id. at 45960, 848 N.W.2d at 175 (quoting People v. Carp, 298 Mich. App. 472,
53637, 828 N.W.2d 685, 723 (2012)).
417. Id. at 46062, 848 N.W.2d at 176.
418. Id. at 46075, 848 N.W.2d at 17684.
419. Id. at 46062, 848 N.W.2d at 176 (citing Nelson v. Sandkamp, 34 N.W.2d 640,
642 (Minn. 1948) (citations omitted)).

636

WAYNE LAW REVIEW

[Vol. 60:597

holds that fractions of days do not count towards ones age.420 On the
other hand, the birthday rule calculates age on the anniversary date of
his or her birth.421 The court acknowledged that some courts have
chosen to adopt the birthday rule instead of the common law rule.422 But
when the court reviewed Michigan jurisprudence, it noted that no
Michigan case, court, or statute has ever compared and then opted for
either the common law birthday rule or the birthday rule.423 In its attempt
to clarify the issue, the court reviewed the Miller opinion, the Michigan
Constitution, the expressions of the Michigan Legislature and the
Michigan Supreme Court, and finally the court reviewed two opinions
from the Michigan Attorney Generals office.424
The court found a lack of guidance from any authority, but the court
did consider a 1937 case from the Michigan Supreme Court where the
court opined that an insurer reached his age on his birthday.425 While the
court noted that the case did not directly address how age is calculated,
the court found the opinion persuasive.426 The court also reviewed a
Michigan Supreme Court opinion from 2009 that appeared to have
applied the birthday rule to a criminal sexual conduct statute.427
After an exhaustive analysis of historical framework and
jurisprudence, the court determined that no Michigan case ever applied
the common law birthday rule, and as such, the court was not persuaded
that Michigan ever adopted that rule.428 More importantly, the court
found that the Michigan Supreme Court had commonly and routinely
used language in its opinions that were consistent with the birthday
rule.429 Therefore, the court of appeals held that if the common law
birthday rule was ever adopted in Michigan, it was long ago abrogated
by decisions of the Michigan Supreme Court and the Michigan
Legislatures subsequent statutory enactments . . . .430 It follows,
naturally then, that the defendant was seventeen on the day he committed
420. Id. at 46264, 848 N.W.2d at 17778.
421. Id. at 464, 848 N.W.2d at 178 (quoting In re Robinson, 464 S.E.2d 86, 88 (N.C.
Ct. App. 1995)).
422. Id. at 46467, 848 N.W.2d at 178179. The court reviewed several states
including Kansas, North Carolina, Pennsylvania, Oklahoma, and Oregon that adopted the
birthday rule over the common law birthday rule. Id. at 46567, 848 N.W.2d at 17879.
423. Id. at 47578, 848 N.W.2d at 18485.
424. Id. at 477501, 848 N.W.2d at 18597.
425. Id. at 498500, 848 N.W.2d at 19596.
426. Id. at 499, 848 N.W.2d at 196.
427. Id. at 50203, 848 N.W.2d at 198. See generally People v. Chapman, 485 Mich.
859, 771 N.W.2d 770 (2009).
428. Woolfolk, 304 Mich. App. at 50405, 848 N.W.2d at 199.
429. Id.
430. Id. at 505, 848 N.W.2d at 199.

2015]

CRIMINAL LAW

637

murder, and under the Miller authority, must be resentenced in

accordance with that opinion.431 Therefore, the court of appeals
remanded the case to the circuit court for resentencing as required under
Miller.432
V. MICHIGAN MEDICAL MARIHUANA ACT (MMMA): THE ACT THAT
KEEPS THE COURTS BUSY!
A. How Much Do Your Brownies Weigh?
The court of appeals took on baked goods in the recent People v.
Carruthers opinion.433
In Carruthers, a defendant who had a medical marijuana card, a
caregiver certificate, and four patients, was charged with possession with
intent to deliver marijuana.434 At issue were brownies that contained the
controlled substance, THC.435 At trial, the defendant admitted that the
brownies were made with a THC extract called cannabutter.436 The
defendant argued that the total weight of the brownie should not be
calculated to decide how much marijuana he actually possessed, but
rather the weight of the THC contained in the brownie.437 The trial court
ruled that the entire weight of the brownie would be calculated for
purposes of how much marijuana the defendant possessed, and because
that amount was more than the limit provided in the Michigan Medical
Marihuana Act (MMMA), the trial court held that the defendant could
not use the medical marijuana immunity defense contained in section
four of the act.438 A jury found the defendant guilty of possession with
intent to deliver, and the defendant filed this appeal.439
On appeal the defendant argued that the trial court should have
considered only the amount of marijuana that was labeled on each
brownie package.440 The defendant also argued on appeal that the trial

431. Id. at 50607, 848 N.W.2d at 200.

432. Id.
433. People v. Carruthers, 301 Mich. App. 590, 837 N.W.2d 16 (2013).
434. Id. at 59396, 837 N.W.2d at 1920.
435. Id. at 594, 837 N.W.2d at 19.
436. Id. at 59496, 837 N.W.2d at 1920.
437. Id. at 59395, 837 N.W.2d at 19.
438. Id. at 599, 837 N.W.2d at 22.
439. Id. at 596, 837 N.W.2d at 20.
440. Id. at 597601, 837 N.W.2d at 2122. The defendant wanted the trial court to
accept his labeling of the marijuana as accurate. Id. at 603 n.6, 837 N.W.2d at 24 n.6.
This is because the prosecutions expert admitted that she could not determine the exact
amount of THC contained in each brownie, but rather, she could only testify that THC

638

WAYNE LAW REVIEW

[Vol. 60:597

court should have allowed him to assert a section four immunity defense,
as well as a section eight affirmative defense.441
As to the defendants section four immunity defense, the defendant
argued that he was possessing usable marijuana as described in the act,442
but the amount he possessed did not exceed the allowable amount under
section four.443 The court of appeals opined that the MMMA was very
clear on its face as to the definition of marijuana and the definition of
usable marijuana.444 The court reviewed the plain language of the
definition of marijuana as contained in the act and determined that the
brownies were marijuana, not usable marijuana.445 Specifically, the court
found that the brownies did not qualify as usable marijuana because
the brownies contained a THC extractnot dried leaves or flowers or
any mixture or preparation thereof.446 Therefore, the court found that
because the defendant possess[ed] edible products that were not usable
marijuana under the MMMA, section four immunity did not apply to
the defendant.447
As to the defendants section eight affirmative defense argument, the
defendant admitted that he did not raise this issue in the trial court
because, according to the defendant, he did not qualify for the
affirmative defense because he had to first fulfill the requirements of
section four under the law at the time of his trial.448 The court of appeals
found that because the law had changed during the pendency of the
defendants appeal, he was deprived of a substantial right that resulted in
plain error.449 Therefore, the court decided that the proper procedure to
handle a section eight affirmative defense was for the defendant to show,
during an evidentiary hearing, that he meets the elements of a section
eight defense.450 The court explained that if the defendant meets all the
elements of a section eight affirmative defense and there were material
questions of fact, then the defendant would be entitled to a new trial,451
was present. Id. at 60103, 837 N.W.2d at 23. The court refused to adopt the defendants
marijuana quantity measurement. Id. at 60304, 837 N.W.2d at 24.
441. Id. at 608, 837 N.W.2d at 26.
442. MICH. COMP. LAWS ANN. 333.26423(k) (West 2015) (defining usable marijuana
as the dried leaves and flowers of the marihuana plant, and any mixture or preparation
thereof).
443. Carruthers, 301 Mich. App. at 60103, 837 N.W.2d at 23.
444. Id. at 60208, 837 N.W.2d at 2326.
445. Id. at 60709, 837 N.W.2d at 26.
446. Id.
447. Id. at 611, 837 N.W.2d at 28.
448. Id. at 61118, 837 N.W.2d at 2831.
449. Id. at 61517, 837 N.W.2d at 3031.
450. Id. at 617, 837 N.W.2d at 31.
451. Id. at 618, 837 N.W.2d at 31.

2015]

CRIMINAL LAW

639

or if the defendant met all of the elements of a section eight defense with
no questions of fact, he would be entitled to a dismissal of the possession
charge.452 Hence, the case was remanded to the trial court for an
evidentiary hearing to determine what remedy applied to the
defendant.453
B. But I Didnt Think the Law Applied to Me!
After nearly four years in the Michigan courts, the court of appeals
found that there was nothing ambiguous about the MMMAs provisions
governing dispensaries.454 In the consolidated cases of People v.
Johnson, seven defendants owned and operated a marijuana
dispensary.455 The marijuana dispensary sold marijuana and candy
containing marijuana to undercover drug agents.456 As a result, each of
the seven defendants was charged with various crimes under the
Michigan public health code.457 After numerous motions, the trial court
determined that while it was not giving retroactive effect to the case of
Michigan v. McQueen,458 the court did find that certain provisions of the
MMMA statute were ambiguous and created due process
ramifications.459 As a remedy, the trial court determined that the rule of
lenity should apply to the case, and the court granted the defendants
motions to dismiss.460
The court of appeals reversed the trial courts decision and remanded
the case for reinstatement of charges against the defendants.461 The court
reasoned that because the public health code prohibits a person from
possessing, using, manufacturing, or delivering marijuana, the
defendants have the burden of showing that they were entitled to the
protections of the MMMAspecifically that they were qualifying
patients who had registry identification cards or that they were primary
caregivers who had been issued registry identification cards.462
But instead, the defendants argued that under the MMMA they could
not have predicted that their behavior was illegal because the act was
452. Id.
453. Id.
454. People v. Johnson, 302 Mich. App. 450, 46263, 838 N.W.2d 889, 896 (2013).
455. Id. at 454, 838 N.W.2d at 891.
456. Id. at 45256, 838 N.W.2d at 89192.
457. Id. at 45657, 838 N.W.2d at 893.
458. 293 Mich. App. 644, 811 N.W.2d. 513 (2011), affd on other grounds, 493 Mich.
135, 828 N.W.2d 644 (2013).
459. Johnson, 302 Mich. App. at 45657, 838 N.W.2d at 893.
460. Id. at 456, 838 N.W.2d at 892.
461. Id. at 46566, 838 N.W.2d at 898.
462. Id. at 45961, 838 N.W.2d at 895.

640

WAYNE LAW REVIEW

[Vol. 60:597

ambiguous.463 The court noted that while the defendants claimed that the
act was ambiguous, they never clearly asserted which provision was
ambiguous and caused them to believe that their activity was lawful.464
The court noted that the defendants failed to point to any provision in the
MMMA where it could be reasonably inferred that marijuana
dispensaries were legal business entities.465 The court held that the trial
court abused its discretion when it found that the phrase using or
administering marijuana was ambiguous because the court did not
consider if each of the seven defendants qualified as a qualifying
patient or primary caregiver under the statute.466
Further, the court of appeals disagreed with the trial courts opinion
that the rule of lenity applied to this case.467 The court held that the rule
of lenity does not apply to the public health code, so the defendants
arguments failed.468
Lastly, the court of appeals held that the McQueen case, which
addressed the legality of operating a marijuana dispensary, should have
been retroactively applied.469 In support of its decision, the court held
that the defendants should have foreseen the courts interpretation of the
MMMA, so the application of McQueen did not have any due process or
ex post facto legal concerns.470 Therefore, the court of appeals reversed
the trial courts holding and remanded the case for reinstatement of the
charges and further proceedings consistent with the courts ruling.471
C. Living in the Mitten: You Have to Be a Michigan Resident to Seek
Immunity Under the MMMA
The court of appeals clarified that the court must determine if a
person qualifies for immunity under section four of the MMMAnot the
jury.472 In People v. Jones, the defendant was charged with possession of
marijuana with the intent to deliver.473 The defendant moved for
dismissal of the charges because she claimed that she was protected
under section four of the actthe immunity provision.474 The prosecutor
463.
464.
465.
466.
467.
468.
469.
470.
471.
472.
473.
474.

Id. at 45861, 838 N.W.2d at 89495.

Id. at 45961, 838 N.W.2d at 895.
Id. at 46163, 838 N.W.2d at 896.
Id. at 45961, 838 N.W.2d at 895.
Id. at 46163, 838 N.W.2d at 896.
Id. at 462, 838 N.W.2d at 896.
Id. at 46566, 838 N.W.2d at 898.
Id. at 46366, 838 N.W.2d at 89798.
Id. at 46566, 838 N.W.2d at 898.
People v. Jones, 301 Mich. App. 566, 568, 837 N.W.2d 7, 910 (2013).
Id. at 570, 837 N.W.2d at 10.
Id.

2015]

CRIMINAL LAW

641

argued that the defendant was not entitled to immunity because she was
not a Michigan resident at the time she applied for the registry card or at
the time of her arrest.475 The trial court held an evidentiary hearing to
determine if the defendant was a Michigan resident.476 After the hearing,
the trial court concluded that there were questions of fact that existed
about whether the defendant was a Michigan resident at the time.477 As
such, the trial court held that it could not determine as a matter of law if
the defendant was entitled to immunity and the immunity issue must go
to the jury.478 The prosecutor appealed.479
The court of appeals held that a person claiming immunity under
section four of the MMMA must be a Michigan resident.480 The court of
appeals reasoned that while matters of fact finding are traditionally left to
the jury, there are instances where the court must make factual
findings.481 The court reasoned that the statute had a section that
addressed visiting qualifying patients as a person who is not a
resident of this state or who has been a resident of this state for less than
30 days.482 Because the statute specifically references a section for
visitors, the court of appeals reasoned that Michigan residency was an
implied prerequisite to the valid possession of a registry card.483
Additionally, the court of appeals reasoned that allowing the trial court to
determine if immunity applied was more efficient because immunity
should be afforded at the earliest stages of the investigation.484 It would
hinder the purpose of immunity (to protect people from prosecution) if
the process required citizens to wait for a jury to decide if immunity
applied to them.485 Therefore, the court of appeals held that for immunity
to apply, the person must be a Michigan resident, and whether the

475. Id.
476. Id. at 57071, 837 N.W.2d at 11.
477. Id.
478. Id.
479. Id.
480. Id. at 57879, 837 N.W.2d at 1415.
481. Id. at 57274, 837 N.W.2d at 12; see also People v. Sexton, 461 Mich. 746, 609
N.W.2d 822 (2000) (highlighting that the trial court determines if a defendants
statements are voluntary); People v. Juillet, 439 Mich. 34, 475 N.W.2d 786 (1991)
(stating that the court determines if a defendant was entrapped under the criminal statute);
People v. Frohriep, 247 Mich. App. 692, 637 N.W.2d 562 (2001) (stating that a court
makes factual findings when determining whether a consent to search was valid).
482. Jones, 301 Mich. App. at 578, 837 N.W.2d at 14 (quoting MICH. COMP. LAWS
ANN. 333.26423(l) (West 2015)).
483. Id. at 57879, 837 N.W.2d at 1415.
484. Id. at 577, 837 N.W.2d at 14.
485. Id.

642

WAYNE LAW REVIEW

[Vol. 60:597

immunity applied was a fact-finding question for the trial court to

decide.486

486. Id. at 57779, 837 N.W.2d at 1415.

EMPLOYMENT AND LABOR LAW

PATRICIA NEMETH
DEBORAH BROUWER
I. DISCRIMINATION CLAIMSCLASS CERTIFICATION........... 643
II. RETALIATION CLAIMS ............................................................... 646
A. The Whistleblowers Protection Act .......................................... 647
1. Preemption........................................................................... 647
2. Applicants Under the WPA .................................................. 650
B. Retaliation in Violation of Public Policy ................................... 653
III. EMPLOYMENT AND OTHER STATUTES ............................................ 658
A. Public Employment Relations Act.............................................. 658
B. Michigan Employment Security Act........................................... 663
IV. EMPLOYMENT CONTRACTS............................................................. 667
I. DISCRIMINATION CLAIMSCLASS CERTIFICATION
This Survey period brought resolution to a sprawling class action
filed more than eight years ago against the Michigan Department of
Human Services (DHS) by minority males claiming discrimination in
promotional opportunities within the department. The Michigan Court of
Appeals reversed (for the second time) the grant of class certification, in
Duskin v. Department of Human Services.1
The class action was originally filed in 2006 on behalf of more than
600 minority (African-American, Hispanic, Arab, and Asian) male
employees of the DHS employed in departments and offices throughout
Michigan.2 Relying on an internal memorandum prepared by the DHS
that surmised that disparities existed in the department regarding
Founding and Managing Partner, Nemeth Law, P.C. B.A., 1981, University of
Michigan; J.D., 1984, Wayne State University; L.L.M. (Labor), 1990, Wayne State
University.
Partner, Nemeth Law, P.C. B.A., 1973, University of Michigan; M.A., 1975,
University of Michigan; J.D., 1980, Wayne State University. Kellen Myers, associate
attorney at Nemeth Law, P.C., provided substantial contributions to this Article.
1. Duskin v. Dept. of Human Servs., 304 Mich. App. 645, 848 N.W.2d 455 (2014)
[hereinafter Duskin II].
2. Duskin v. Dept. of Human Servs., 284 Mich. App. 400, 40607, 775 N.W.2d
801, 806 (2009), vacated, 485 Mich. 1064, 777 N.W.2d 168 (2010) [hereinafter Duskin
I]. For more detail on Duskin, see Patricia Nemeth & Deborah Brouwer, Employment &
Labor Law, 56 WAYNE L. REV. 189, 202 (2010).

643

644

WAYNE LAW REVIEW

[Vol. 60:643

promotion of minority males, the plaintiffs alleged race, ethnicity, and

gender discrimination.3
The plaintiffs moved to certify the class in January 2007; over strong
opposition from the DHS, the motion was granted.4 On interlocutory
review, the court of appeals reversed. Applying a rigorous analysis
standard, the court agreed with the DHS that the plaintiffs had not met
their burden of establishing numerosity, commonality, typicality, and
superiority, and so class certification was not appropriate.5 Shortly after
the court of appeals decision, however, the Michigan Supreme Court
issued Henry v. Dow Chemical,6 rejecting the federal rigorous analysis
standard for class certification as insufficiently precise and holding that
Michigans class action court rule, MCR 3.501,7 provided adequate
guidance for assessing such motions.8 The court also noted that if a
plaintiffs pleadings do not make a sufficient case for class certification,
the trial court is to look to additional information beyond the pleadings to
assess whether class certification is proper.9
Based on Henry, the Duskin plaintiffs sought leave to appeal to the
Michigan Supreme Court. In lieu of granting leave, the court vacated the
court of appeals judgment and remanded the matter to the trial court for
reconsideration in light of its decision in Henry.10
On remand, the DHS moved for summary judgment, while the
plaintiffs again sought class certification.11 The trial court found
numerosity despite the fact that not all class members had sought
promotions, because all class members had an interest in making sure
that they are not discriminated against if they do.12 Commonality was
3.
4.
5.
6.
7.

8.
9.
10.
11.
12.

Duskin I, 284 Mich. App. at 40607, 775 N.W.2d at 806.

Id. at 408, 775 N.W.2d at 807.
Id. at 42426, 775 N.W.2d at 81617.
Henry v. Dow Chem. Co., 484 Mich. 483, 50203, 772 N.W.2d 301, 311 (2009).
MICH. CT. R. 3.501(A)(1) states:
One or more members of a class may sue or be sued as representative parties
on behalf of all members in a class action only if: (a) the class is so
numerous that joinder of all members is impracticable; (b) there are
questions of law or fact common to the members of the class that
predominate over questions affecting only individual members; (c) the
claims or defenses of the representative parties are typical of the claims or
defenses of the class; (d) the representative parties will fairly and adequately
assert and protect the interests of the class; and (e) the maintenance of the
action as a class action will be superior to other available methods of
adjudication in promoting the convenient administration of justice.
Henry, 484 Mich. at 50203, 772 N.W.2d at 311.
Id. at 503, 772 N.W.2d at 311.
Duskin II, 304 Mich. App. 645, 650, 848 N.W.2d 455, 459 (2014).
Id.
Id. at 650, 848 N.W.2d at 460.

2015]

EMPLOYMENT AND LABOR LAW

645

established, according to the trial court, because DHSs alleged culture

of discrimination was the predominant question of law and fact.13 The
requirement of typicality was satisfied, again despite the fact that not
everyone had sought promotion, because all class members allegedly
share the same fear of being discriminated against.14 Adequacy of
representation existed because any potential conflicts among class
members were offset by the plaintiffs common interest in ending
discrimination.15 Finally, the circuit court held that proceeding as a class
was superior to each individual bringing a separate case.16
The DHS again sought, and again was granted, leave to appeal, and
the court of appeals again reversed.17 In so doing, the court concluded
that the plaintiffs had failed to establish any of the circumstances
required under MCR 3.501(A)(1).18 First, as to numerosity, the court
observed that the plaintiffs were required to adequately define the class
so potential members can be identified and to establish that a sizeable
number of class members have suffered an actual injury.19 While the
proposed class was specifically defined (as all minority males employed
by the DHS), not all of those employees ever sought promotion.20 The
court of appeals rejected the trial courts contention that employees who
were too discouraged to seek promotion still could be viewed as
suffering an actual injury, observing that [e]mployees who did not apply
for promotions out of fear of discrimination are not properly included in
a class because class membership must be based on objective criteria.21
The plaintiffs thus failed to provide basic facts regarding whether a
sizeable number of class members suffered an actual injury and so
failed to meet the numerosity requirement.22
The court reached a similar conclusion as to commonality, which
requires that common issues of fact and law predominate and that class
members suffer the same injury.23 As the court noted, however, [t]he
minority males combined suit would require proofs regarding different
types of discrimination (racial or ethnic, and gender) and different
13. Id.
14. Id. at 651, 848 N.W.2d at 460.
15. Id.
16. Id.
17. Id. at 647, 848 N.W.2d at 458.
18. Id. at 659, 848 N.W.2d at 464.
19. Id. at 653, 848 N.W.2d at 461 (quoting Zine v. Chrysler Corp., 236 Mich. App.
261, 28889, 600 N.W.2d 384, 400 (1999)).
20. Id. at 65455, 848 N.W.2d at 461.
21. Id. at 65354, 848 N.W.2d at 461.
22. Id. at 654, 848 N.W.2d at 461.
23. Id. at 65455, 848 N.W.2d at 46162.

646

WAYNE LAW REVIEW

[Vol. 60:643

methods of discrimination (disparate impact and deliberate

discrimination) against different actors (the Department as a whole and
an undetermined number of supervisors in individual departmental
units).24 As such, the court concluded that the plaintiffs had failed to
raise common questions of law or fact.25
The court next considered the typicality requirement, whether the
named representatives have the same essential characteristics of the
claims of the class at large.26 Because evidence was not produced as to
whether the named plaintiffs shared the same characteristics regarding all
of the claims and all of the different types of discrimination alleged
against the various actors, the court found no typicality.27
Concerning the requirement that class counsel be qualified to
represent the proposed class and that the class members have no
conflicting interests (also known as adequacy), the appellate court
noted that the trial court had not addressed the qualifications of class
counsel at all and had assumed a lack of conflict because all class
members shared the same fear of discrimination.28 Reliance on mere
allegations of shared goals and the absence of conflict was insufficient to
support a finding of adequacy, in the court of appeals view.29
Finally, the court was unpersuaded by the lower courts conclusion
that a class action was the superior method of addressing the claims of
the proposed class, stating that individual questions of law and fact will
predominate over any common questions, making this case
unmanageable as a class action.30 Because the plaintiffs failed to
establish numerosity, commonality, typicality, adequacy, and superiority,
the trial courts certification of the dispute as a class action was clearly
erroneous and so was reversed by the court of appeals.31
II. RETALIATION CLAIMS
Claims alleging retaliation, as distinct from discrimination, occupied
much of the time and energy of Michigan appellate courts during the
Survey period, although the issues appear to be narrowing. In Henry v.
Laborers Local 1191, the Michigan Supreme Court considered whether
24. Id. at 656, 848 N.W.2d at 46263.
25. Id. at 656, 848 N.W.2d at 463.
26. Id. (citations omitted) (quoting Neal v. James, 252 Mich. App. 12, 21, 651
N.W.2d 181, 186 (2002)) (internal quotation marks omitted).
27. Id. at 65758, 848 N.W.2d at 463.
28. Id. at 658, 848 N.W.2d at 463.
29. Id. at 658, 848 N.W.2d at 46364.
30. Id. at 659, 848 N.W.2d at 464.
31. Id.

2015]

EMPLOYMENT AND LABOR LAW

647

the plaintiffs state Whistleblowers Protection Act (WPA)32 claims were

preempted by federal labor law statutes.33 In Wurtz v. Beecher
Metropolitan District, the court considered whether the WPA applied to
an employee with a fixed term contract who alleged that his employers
failure to renew his contract violated the WPA. 34 Finally, in Landin v.
Healthsource of Saginaw, a Michigan Court of Appeals panel concluded
that a public policy retaliatory discharge claim could be based on
claimed violations of Michigans Public Health Code.35
A. The Whistleblowers Protection Act
1. Preemption
In Henry v. Laborers Local 1191, the several plaintiffs (business
agents and employees of the defendant union) were removed from their
positions following internal and external complaints about wages,
working conditions, and possible embezzlement and kickbacks by union
officials.36 They sued, claiming retaliation in violation of the WPA.37 In
the trial court, the defendants argued that the claims were preempted by
the federal Labor-Management Reporting and Disclosure Act
(LMRDA).38 The trial court disagreed, and the defendants appealed.39 On
appeal, the defendants argued additionally that the plaintiffs claims were
preempted by the National Labor Relations Act (NLRA).40 The court of
appeals rejected both arguments and affirmed the trial courts denial of
summary disposition.41 The Michigan Supreme Court granted leave to
appeal.42
The Michigan Supreme Court affirmed in part and reversed in part.43
In so doing, the court first observed that federal-state preemption is

32. Whistleblowers Protection Act (WPA), MICH. COMP. LAWS ANN. 15.361
15.369 (West 2014).
33. Henry v. Laborers Local 1191, 495 Mich. 260, 848 N.W.2d 130 (2014).
34. Wurtz v. Beecher Metro. Dist., 495 Mich. 242, 848 N.W.2d 121 (2014).
35. Landin v. Healthsource of Saginaw, Inc., 305 Mich. App. 519, 854 N.W.2d 152
(2014).
36. Henry, 495 Mich. at 27071, 848 N.W.2d at 13536.
37. Id. at 271, 848 N.W.2d at 136.
38. Id. at 271, 848 N.W.2d at 136; see 29 U.S.C.A. 401531 (West 2014).
39. Henry, 495 Mich. at 272, 848 N.W.2d at 136.
40. Id. at 272, 848 N.W.2d at 136; see 29 U.S.C.A. 151169 (West 2014).
41. Henry, 495 Mich. at 272, 848 N.W.2d at 136.
42. Henry v. Laborers Local 1191, 493 Mich. 934, 825 N.W.2d 578 (2013).
43. Henry, 495 Mich. at 269, 848 N.W.2d at 134.

648

WAYNE LAW REVIEW

[Vol. 60:643

grounded in the Supremacy Clause of the United States Constitution,44

which, as interpreted by the U.S. Supreme Court, requires state law to
yield to federal law that conflicts with the state law.45 Preemption applies
only when Congress, either explicitly or implicitly, intended the federal
law to predominate, and whether a state law is in fact preempted
therefore is a question of congressional intent.46
Applying these guidelines, the court noted that that NLRA was
enacted to protect workers rights to form unions, bargain collectively
with employers, and generally engage in concerted activities for the
purpose of mutual aid and protection.47 The National Labor Relations
Board (NLRB) enforces those rights.48 The U.S. Supreme Court has
determined that the NLRA created a general federal law of labor
relations, supplanting state jurisdiction over conduct covered by the
NLRA.49 Thus, when an activity is arguably subject to 7 or 8 of the
Act, 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.50 If the activity in
question is arguably subject to the NLRA, any state law claim arising
from it is preempted, subject to two exceptions: where the state claim
involves a merely peripheral concern of the NLRA or where that claim
reflects deeply rooted state interests.51
The court in Henry concluded that, to the extent that the plaintiffs
contended that they were discharged for raising concerns about wages
and other working conditions, those claims were preempted by the
NLRA because such concerns constituted mutual aid, which is protected
by the act.52 Further, neither of the two exceptions applied: working
conditions are a core concern under the NLRA, and while the WPAs
44. U.S. CONST. art. VI, cl. 2 (This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties made, or which shall be made,
under the Authority of the United States, 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.)
45. Henry, 495 Mich. at 275, 848 N.W.2d at 138.
46. Id. at 27475, 848 N.W.2d at 13738 (citing English v. Gen. Elec. Co., 496 U.S.
72, 7879 (1990)).
47. Id. at 27677, 848 N.W.2d at 13839 (citing National Labor Relations Act, 29
U.S.C. 157158(a)(1) (2014)).
48. Id. at 277, 848 N.W.2d at 139 (citing 29 U.S.C. 160(a) (2014)).
49. Id. at 278, 848 N.W.2d at 139 (citing San Diego Bldg. Trades Council v. Garmon,
359 U.S. 236, 244 (1959)).
50. Id. at 278, 848 N.W.2d at 13940 (citations omitted) (quoting Garmon, 359 U.S.
at 245).
51. Id. at 27980, 848 N.W.2d at 14041 (citing Garmon, 359 U.S. at 24344).
52. Id. at 289, 848 N.W.2d at 14546.

2015]

EMPLOYMENT AND LABOR LAW

649

protection against retaliatory discharge for reporting illegal working

conditions is important to the state, the NLRAs 80-year-old history of
similar protections takes precedence.53 The court did not, however, find
the plaintiffs claims of retaliation for reporting of criminal misconduct
preempted by the NLRA because according to the majority, the NLRA
simply does not regulate the reporting of federal and state crimes,
especially when those allegations do not relate to the employers labor
practices.54 In the majoritys view, even if such activity was arguably
subject to the NLRA, the states interest in enforcing its criminal laws is
deeply rooted, triggering an exception to preemption.55
Similarly, the court concluded that the plaintiffs claims were not
preempted by the LMRDA.56 The LMRDA was enacted to protect the
democratic processes in union leadership and to establish certain rights
(freedom of expression and assembly) of rank and file union members.57
Conduct protected by the LMRDA does not, however, extend to a union
members rights as an employee of a union, because elected union
officials have the discretion to select their employees, responding to the
mandate of the union election.58 A state law wrongful discharge claim is
therefore preempted by the LMRDA, unless it conflicts with the purpose
of the LMRDA.59 According to the court, a wrongful termination claim
where an elected union official attempts to use his hiring/firing authority
to hide criminal activity, does conflict with the purposes of the LMRDA
and thus presents an exception to LMRDA preemption.60 That exception
in the courts view was conclusive in the case before it because [a]
union employers discretion in employment decisions must yield in cases
in which elected union officials attempt to use that discretion as a shield
to hide alleged criminal misconduct.61
The court therefore affirmed the court of appeals decision only in
part, agreeing with the lower court that the WPA claims arising from
complaints about alleged criminal activity were not preempted by either

53. Id. at 28990, 848 N.W.2d at 146.

54. Id. at 29192, 848 N.W.2d at 14647.
55. Id. at 293, 848 N.W.2d at 148.
56. Id. at 28586, 848 N.W.2d at 144.
57. Id. at 28182, 848 N.W.2d at 14142 (citing 29 U.S.C.A 411(a)(2), 411(a)(5)
(West 2014)).
58. Id. at 283, 848 N.W.2d at 142 (citing Finnegan v. Leu, 456 U.S. 431, 43637
(1982)).
59. Id. at 284, 848 N.W.2d at 143.
60. Id. at 28586, 848 N.W.2d at 14344 (citing Bloom v. Gen. Truck Drivers,
Office, Food & Warehouse Union, 783 F.2d 1356 (9th Cir. 1986)).
61. Id. at 296, 848 N.W.2d at 149.

650

WAYNE LAW REVIEW

[Vol. 60:643

the LMRDA or the NLRA but holding that the claims involving working
conditions were preempted.62
In his partial dissent, Justice Brian K. Zahra disagreed that the
NLRA did not preempt plaintiffs claim of retaliation for reporting
possible criminal violations to the Department of Labor, finding instead
that the plaintiffs reporting of alleged crimes was arguably subject to
the NLRA.63 In Justice Zahras view, the right of employees to assist
labor unions, which the NLRA expressly grants, encompasses the right to
report suspected criminal activity by union leaders because such a report
serves to assist the union.64 As Justice Zahra wrote: Plaintiffs reported
alleged criminal conduct that triggered protection under the WPA and
simultaneously assisted a labor organization, which entitles plaintiffs
activity to NLRA protection.65 Justice Zahra also concluded that no
exceptions to preemption applied because discharging an employee for
assisting a labor organization (by reporting suspected crimes) is a
preeminent concern of the NLRA, to which Michigans interest in
resolving the dispute should give way.66
2. Applicants Under the WPA
In Wurtz v. Beecher Metropolitan District,67 the Michigan Supreme
Court held that because the WPA applies only to current employees, it
offered no protection to Richard Wurtz, a contract employee whose term
of employment expired without renewal by his employer. The court
concluded that because the WPA does not apply when an employer
decides not to hire a job applicant, it likewise has no application to a
contract employee whom the employer declines to hire for a new term of
employment.68
Richard Wurtz, an attorney, was employed as the part-time
administrator of the Beecher Metropolitan Water District from February
1, 2000, to February 1, 2010 under a contract that he drafted.69 He
reported to a five-member board of directors, with which he began to
clash in 2008 when he reported an alleged violation of the Open

62.
63.
64.
65.
66.
67.
68.
69.

Id. at 297, 848 N.W.2d at 150.

Id. at 298, 848 N.W.2d at 150 (Zahra, J., dissenting).
Id. at 30103, 848 N.W.2d at 15253.
Id. at 308, 848 N.W.2d at 156.
Id. at 313, 484 N.W.2d at 15859.
Wurtz v. Beecher Metro. Dist., 495 Mich. 242, 848 N.W.2d 121 (2014).
Id. at 244, 848 N.W.2d at 122.
Id. at 245, 848 N.W.2d at 122.

2015]

EMPLOYMENT AND LABOR LAW

651

Meetings Act (OMA).70 In May 2008, he wrote to the Genesee County

Prosecutor, claiming that three board members had violated the OMA by
meeting privately with a labor attorney to discuss whether to retain that
attorney for the District.71 The prosecutor declined to take action.72
Several months later, when demanding a benefits increase to match the
benefits given to the Districts unionized employees, Wurtz told the
board that he had filed the OMA complaint and that he would view the
boards failure to grant his demand for greater benefits as illegal
retaliation.73 Wurtz received the increase.74
In early 2009, Wurtz proposed a new contract with the District, in
which he would reduce his salary and benefits in return for a two-and-ahalf-year extension of his contract.75 The board rejected that offer by a 3to-2 vote.76
In spring 2009, Wurtz raised concerns regarding board members
attendance at an industry conference in San Diego, including whether the
District should reimburse certain costs.77 The board members attended
the conference nonetheless, and Wurtz himself issued the reimbursement
checks.78 Wurtz then contacted the Genesee County Sheriffs Department
and the Flint Journal about the boards trip.79 The Districts office was
raided and several board members were criminally charged, although all
were acquitted or had the charges dismissed.80
In November 2009, despite Wurtzs warning that he would view
non-renewal of his contract as retaliation for the criminal investigation,
the board declined to renew the agreement beyond its February 1, 2010
expiration date.81 Wurtz was permitted to finish out his term; his contract
ended on February 1, 2010.82 During the contract period, Wurtz received
all of the compensation to which he was entitled.83
Wurtz filed suit, alleging that the Districts refusal to renew his
contract violated the WPA; the trial court dismissed Wurtzs claims on
70. Id. at 245, 848 N.W.2d at 123 (citing MICH. COMP. LAWS ANN. 15.26115.275
(West 2014)).
71. Id.
72. Id.
73. Id.
74. Id. at 246, 848 N.W.2d at 123.
75. Id.
76. Id.
77. Id.
78. Id.
79. Id.
80. Id.
81. Id. at 24647, 848 N.W.2d at 123.
82. Id. at 247, 848 N.W.2d at 124.
83. Id.

652

WAYNE LAW REVIEW

[Vol. 60:643

the Districts motion for summary disposition because Wurtz had worked
for his entire contract and had not been discharged.84 In a 2-1 decision,
the court of appeals reversed, with the majority concluding that failure to
renew a fixed-term employment agreement was an adverse employment
action.85 The supreme court granted leave to appeal.86
The court divided its analysis of Wurtzs claim into two steps: first,
whether a contract employee seeking a new term of employment should
be treated as a new job applicant and second, whether the WPA applies
to job applicants who are not hired.87 The court concluded initially that
[a]bsent some express obligation stating otherwise, a contract employee
has absolutely no claim to continued employment after his contract
expires.88 An employer considering renewal of contract thus engages in
the same decisional process used in deciding whether to hire an
employee in the first place.89 According to the court, in the WPA context,
no relevant difference exists between a new job applicant and a current
contract employee seeking a new term of employment.90
The court next turned to the language of the WPA, which states: An
employer shall not discharge, threaten, or otherwise discriminate against
an employee regarding the employees compensation, terms, conditions,
location or privileges of employment . . . .91 The court noted that the
WPA specifically defines an employee as a person who performs a
service for wages or other remuneration under a contract of hire, written
or oral, express or implied,92 but omits any reference to job applicants
or prospective employees.93 This differs from Michigans Elliott Larsen
Civil Rights Act (ELCRA),94 which expressly prohibits the
discriminatory or retaliatory failure to hire or recruit, 95 or federal civil

84. Id. at 24748, 848 N.W.2d at 124.

85. Wurtz v. Beecher Metro. Dist., 298 Mich. App. 75, 88, 825 N.W.2d 651, 658
(2012), revd, 495 Mich. 242, 848 N.W.2d 121 (2014).
86. Wurtz v. Beecher Metro. Dist., 494 Mich. 862, 831 N.W.2d 235 (2013).
87. Wurtz, 495 Mich. at 249, 848 N.W.2d at 124.
88. Id. at 249, 848 N.W.2d at 125 (citation omitted).
89. Id.
90. Id. at 250, 848 N.W.2d at 125.
91. Id. (quoting MICH. COMP. LAWS ANN. 15.362 (West 2014)).
92. Id. at 25253, 848 N.W.2d at 12627 (quoting MICH. COMP. LAWS ANN.
15.361(a) (West 2014)).
93. Id. at 253, 848 N.W.2d at 127.
94. Elliot Larsen Civil Rights Act (ELCRA), MICH. COMP. LAWS ANN. 37.2101
37.2804 (West 2014).
95. Wurtz, 495 Mich. at 25354, 848 N.W.2d at 127 (citing MICH. COMP. LAWS ANN.
37.2202(1) (West 2014)).

2015]

EMPLOYMENT AND LABOR LAW

653

rights statutes such as Title VII and the Age Discrimination in

Employment Act.96
The court took pains to articulate the limits of its conclusion that the
WPA does not protect a contract employee claiming retaliation for nonrenewal of his contract.97 First, the WPA does encompass retaliatory
actions taken during that contract employees term of employment:
[W]hen an employer discharges, threatens, or discriminates against a
contract employee serving under a fixed term contract because the
employee engaged in a protected activity, the WPA applies.98 Second,
the decision did not impact at-will employees, who, unlike fixed term
employees and prospective employees, do not have to reapply for their
positions and so retain their WPA protection as employees.99
The court then applied its conclusion that the WPA does not extend
to the pre-employment context to Wurtzs claim, which rested solely on
his contention that the District retaliated against him as an applicant for
future employment.100 Wurtz did not allege that any prohibited WPA
action occurred while he was a District employeehe was not fired,
threatened, or discriminated against as to the terms of his employment or
his compensation.101 The court summarized:
During his time as an employee, Wurtz experienced no action
prohibited by the WPA and therefore has no recourse under the
statute. As an applicant for future employment, Wurtz was not
hired. But the WPA does not cover prospective employees whom
an employee declines to hire, so Wurtz cannot claim relief under
the statute.102
The court of appeals decision to the contrary was reversed, and the case
was remanded to the circuit court for entry of summary disposition for
the defendants.103
B. Retaliation in Violation of Public Policy
While employees in Michigan generally are considered to be at-will
employees, courts have recognized an exception to that status prohibiting
96.
97.
98.
99.
100.
101.
102.
103.

Id.
Id. at 256, 848 N.W.2d at 12728.
Id. at 256, 848 N.W.2d at 12829.
Id. at 25657, 848 N.W.2d at 129.
Id. at 257, 848 N.W.2d at 129 (emphasis in original).
Id. at 258, 848 N.W.2d at 129.
Id. at 258, 848 N.W.2d at 130.
Id.

654

WAYNE LAW REVIEW

[Vol. 60:643

an employer from discharging an employee for a reason that is contrary

to established public policy. In Suchodolski v. Michigan Consolidated
Gas Co.,104 the Michigan Supreme Court identified three situations in
which public policy proscribes termination of at-will employment: (1)
explicit legislation prohibiting the discharge or other adverse treatment
of employees who act in accordance with a statutory right or duty (e.g.,
the ELCRA and the WPA); (2) an employees failure or refusal to violate
a law in the course of employment (e.g., discharging an employee for
refusal to falsify pollution reports); or (3) an employees exercise of a
right conferred by a well-established legislative enactment (e.g.,
discharging an employee for seeking workers compensation benefits).105
While recognizing that the above list is not exhaustive,106 Michigan
courts have been cautious in recognizing new sources of public policy
that might forbid the discharge of at-will employees. As observed by the
Michigan Supreme Court in Terrien v. Zwit:107
In identifying the boundaries of public policy, we believe that
the focus of the judiciary must ultimately be upon the policies
that, in fact, have been adopted by the public through our various
legal processes, and are reflected in our state and federal
constitutions, our statutes, and the common law . . . . The public
policy of Michigan is not merely the equivalent of the personal
preferences of a majority of this Court; rather, such a policy must
ultimately be clearly rooted in the law. There is no other proper
means of ascertaining what constitutes our public policy.108
Applying these guidelines, several Michigan Court of Appeals panels
have concluded that employees claiming to have been discharged for
refusing to participate in activity that the employee believed to be
medical malpractice failed to state a claim of wrongful discharge in
violation of Michigan public policy.109 However, in Landin v.
104. Suchodolski v. Mich. Consol. Gas Co., 412 Mich. 692, 316 N.W.2d 710 (1982).
105. Id. at 69596, 316 N.W.2d at 71112.
106. See, e.g., Kimmelman v. Heather Downs Mgt. Ltd., 278 Mich. App. 569, 573,
753 N.W.2d 265, 268 (2008).
107. Terrien v. Zwit, 467 Mich. 56, 648 N.W.2d 602 (2002).
108. Id. at 6667, 648 N.W.2d at 608.
109. See Irwin v. Ciena Health Care Mgmt., Nos. 305878, 306013, 2013 WL 5495560
(Mich. Ct. App. Oct. 3, 2013) (stating that the standard of care owed a patient is not a
sufficient public policy basis for a wrongful termination case because the applicable
standard of care is not based on an objective legal source, as required by Suchodolski, but
is established on a case-by-case basis); Parent v. Mount Clemens Gen. Hosp., Inc., No.
235235, 2003 WL 21871745 (Mich. Ct. App. Aug. 7, 2003) (holding that because the
Michigan Public Health Code, in MCL 332.20180(1), granted employees protection

2015]

EMPLOYMENT AND LABOR LAW

655

Healthsource Saginaw, Inc.,110 a published decision issued during the

Survey period, the Michigan Court of Appeals held that a nurse who was
fired after making an internal employee complaint of possible medical
malpractice stated a claim for wrongful discharge in violation of
Michigan public policy based in the Public Health Code.111
Landin, a licensed practical nurse employed by Healthsource
Saginaw, a nonprofit hospital, claimed he was fired for reporting what he
believed to be negligent care of a patient by a co-worker.112 He sued,
arguing that his discharge occurred in violation of public policy; the trial
court denied the hospitals motion for summary disposition, holding that
Michigan law recognizes a cause of action for wrongful termination in
violation
of
the
public
policy
exhibited
by
MCL
333.20176a(1)(a) . . . .113 The dispute went to trial, where the jury found
in favor of Landin.114 The hospital appealed, and the court of appeals
affirmed.115
In so doing, the court of appeals concluded that Landins public
policy claim fell under the first and third exceptions to at-will
employment identified in Suchodolski.116 The source of the public policy
on which the court based its conclusion is found in MCL section
333.20176a(1)(a), part of Michigans Public Health Code. That provision
states:
(1) A health facility or agency shall not discharge or discipline,
threaten to discharge or discipline, or otherwise discriminate
against an employee regarding the employees compensation,
terms, conditions, location, or privileges of employment because
the employee or an individual acting on behalf of the employee
does either or both of the following:
(a) In good faith reports or intends to report, verbally or
in writing, the malpractice of a health professional or a
violation of this article, article 7, article 8, or article 15
from retaliatory discharge by incorporating the WPA as a remedy, that was the plaintiffs
exclusive remedy for her discharge).
110. Landin v. Healthsource Saginaw, Inc., 305 Mich. App. 519, 53132, 854 N.W.2d
152, 16263 (2014).
111. Id. at 53132, 854 N.W.2d at 16263.
112. Id. at 52122, 854 N.W.2d at 15758.
113. Id. at 522, 854 N.W.2d at 158.
114. Id.
115. Id.
116. Id. at 52831, 854 N.W.2d at 16162 (citing Suchodolski v. Mich. Consol. Gas
Co., 412 Mich. 692, 69596, 316 N.W.2d 710, 71112 (1982)).

656

WAYNE LAW REVIEW

[Vol. 60:643

or a rule promulgated under this article, article 7, article

8, or article 15.117
The court noted that the purpose of the Public Health Code is to
safeguard the public health and protect the public from medical
incompetence and that MCL section 333.20176a(1)(a) furthered those
goals by prohibiting retaliation against an employee who reports
malpractice.118 In the courts view, then, MCL section 333.20176a(1)(a)
was akin to the WPA and the anti-retaliation provisions of the ELCRA,
both of which the court recognized as within the scope of Suchodolskis
first exception to at-will employment, which requires an explicit
legislative statement prohibiting the discharge of an employee acting in
accordance with a statutory right.119
The court also held that Landins claim fell within the third
Suchodolski exception, prohibiting the discharge of an employee for
exercising a right conferred by well-established legislative enactment,
such as the filing of a claim for workers compensation benefits.120 In the
courts view, the workers compensation statute and section
333.20176a(1)(a) of the Public Health Code share the same purpose
promotion of the welfare of the people of Michigan with regard to health
and safety.121 According to the court:
[If] employers in [the health and medical fields] are permitted to
terminate employees who report the malpractice of coworkers or
others, they, like employers in workers compensation cases,
would be given free rein to use the most powerful tool at their
disposal to attempt to deflect their potential liability, but to the
detriment of the public and in direct violation of the purpose of
the Public Health Code.122
The court rejected the hospitals argument that, under MCL section
333.20180, the WPA was Landins exclusive remedy.123 That provision
states:

117. MICH. COMP. LAWS ANN. 333.20176a(1)(a) (West 2014).

118. Landin, 305 Mich. App. at 530, 854 N.W.2d at 162.
119. Id. at 52930, 854 N.W.2d at 162 (citing Suchodolski, 412 Mich. at 69596, 316
N.W.2d at 71112).
120. Id. at 530, 854 N.W.2d at 162.
121. Id. at 531, 854 N.W.2d at 16263.
122. Id. at 531, 854 N.W.2d at 163.
123. Id. at 532, 854 N.W.2d at 163; see Shuttleworth v. Riverside Osteopathic Hosp.,
191 Mich. App. 25, 27, 477 N.W.2d 453, 454 (1991) (holding that the WPAs remedies

2015]

EMPLOYMENT AND LABOR LAW

657

(1) A person employed by or under contract to a health facility or

agency or any other person acting in good faith who makes a
report or complaint including, but not limited to, a report or
complaint of a violation of this article or a rule promulgated
under this article; who assists in originating, investigating, or
preparing a report or complaint; or who assists the department in
carrying out its duties under this article is immune from civil or
criminal liability that might otherwise be incurred and is
protected under the whistleblowers protection act, 1980 PA 469,
MCL 15.361 to 15.369. A person described in this subsection
who makes or assists in making a report or complaint, or who
assists the department as described in this subsection, is
presumed to have acted in good faith. The immunity from civil
or criminal liability granted under this subsection extends only to
acts done pursuant to this article.124
While acknowledging that this provision of the Public Health Code
incorporates the WPA into its legislative scheme, the court viewed the
provision as applying only to instances in which the employee complains
about a violation of the Public Health Code.125 Because Landin
complained about medical malpractice, he could not seek WPA
protection through this section of the Public Health Code.126 Thus, the
trial courts denial of the hospitals motion for summary disposition was
not in error.127
While the Landin court did not address the apparently inconsistent
holding of Irwin v. Ciena Health Care Management,128 Landin and Irwin
may be reconcilable because the plaintiff in Irwin did not rely on the
Public Health Code as the source of the public policy forbidding her
discharge; instead, she claimed that the states medical malpractice
standards established the requisite public policy.129 The Irwin court found
that insufficient because the standard of care applied in a medical
malpractice case is not based on an objective legal source but varies in
each case and must be established through expert testimony.130
are exclusive and not cumulative; thus, if a plaintiff brings a WPA claim, he cannot also
argue that his termination violated public policy).
124. MICH. COMP. LAWS ANN. 333.20180 (West 2014).
125. Landin, 305 Mich. App. at 53233, 854 N.W.2d at 163.
126. Id.
127. Id. at 533, 854 N.W.2d at 163.
128. Irwin v. Ciena Health Care Mgmt., Inc., Nos. 305878, 306013, 2013 WL 5495560
(Mich. Ct. App. Oct. 3, 2013).
129. Id. at *2.
130. Id.

658

WAYNE LAW REVIEW

[Vol. 60:643

The Landin court also failed to mention Parent v. Mount Clemens

General Hospital,131 which held that the WPA was the plaintiffs
exclusive remedy for retaliatory discharge grounded on policy based on
the Public Health Code. Nevertheless, the Landin courts conclusion that
MCL section 333.20180 applied only to employees reporting violations
of the Public Health Code is sufficient to distinguish Parent.
III. EMPLOYMENT AND OTHER STATUTES
A. Public Employment Relations Act
In Macomb County v. AFSCME Council 25 Locals 411 and 893, the
Michigan Supreme Court, in a 4-2 decision, sided with Macomb County
in a case that reaffirmed and clarified prior precedent limiting the
jurisdiction of the Michigan Employment Relations Commission
(MERC).132
Macomb County involved a recurring theme from recent years in
which a local government seeks to reduce pension and retirement
obligations for employees represented by labor unions.133 The case
involved nine separate collective bargaining agreements between
multiple unions (referred to collectively in this article as the Unions)
and Macomb County.134 The issue before the court was whether the
County committed an unfair labor practice under Michigans Public
Employment Relations Act (PERA)135 when it unilaterally changed the
actuarial table used to calculate joint and survivor benefits for employees
retiring after July 1, 2007.136
The dispute stemmed from an ordinance enacted by the Macomb
County Board of Commissioners to provid[e] pension and retirement
benefits for the employees of the County of Macomb and establish the
Macomb County Retirement Commission to administer and manage the
operation of the retirement system.137 Significant to the current matter,
the ordinance also provided retiring county employees the option of
131. Parent v. Mount Clemens Gen. Hosp. Inc., No. 235235, 2003 WL 21871745
(Mich. Ct. App. Aug. 7, 2003).
132. Macomb County v. AFSCME Council 25, 494 Mich. 65, 833 N.W.2d 225 (2013).
133. Id.
134. Specifically, the charging party unions included AFSCME Council 25, Locals
411 and 893; International Union UAW Locals 412 and 889; and the Michigan Nurses
Association. Id. at 73 n.10, 833 N.W.2d at 230 n.10.
135. MICH. COMP. LAWS ANN. 423.201423.217 (West 2014).
136. Macomb County, 494 Mich. at 7274, 833 N.W.2d at 22931.
137. Id. at 7172, 833 N.W.2d at 22930 (citing Macomb County retirement
ordinance, 1).

2015]

EMPLOYMENT AND LABOR LAW

659

receiving various pension plans, including a straight life pension plan in

which payments terminated upon death of the employee and a joint and
survivor pension plan under which pension benefits continued until the
death of both the employee and his or her spouse.138 If a retiree chose the
joint and survivor plan, the monthly pension payment was reduced to the
actuarial equivalent . . . of [the retirees] straight life retirement
allowance . . . .139 The applicable collective bargaining agreements
incorporated the terms of the retirement ordinance by reference
although how explicitly was a matter of dispute.140
Unfortunately, the retirement ordinance failed to define the term
actuarial equivalent, which, unsurprisingly, became the primary issue
in Macomb County.141 For approximately twenty-four years, the
retirement system applied a female actuarial table when calculating its
retirees monthly joint and survivor payments.142 After a study by the
countys actuary, however, it was determined that use of the actuarial
equivalent table caused the joint and survivor benefit to become more
valuable than the single life annuity payment.143 To ensure actuarial
equivalence between the two benefit plans, the Commission voted to
adopt an adjusted table.144
The Unions that had incorporated the ordinance into their collective
bargaining agreements with Macomb County demanded bargaining over
the use of the new table, arguing that because retirement benefits were
mandatory subjects of bargaining, the change in the actuarial table was
an illegal unilateral action by the County.145 The County rejected the
demand and claimed that the existing collective bargaining agreements
(including the ordinance-incorporating language) gave the Commission
138. Id.
139. Id. at 83 n.54, 833 N.W.2d at 236 n.54 (quoting Macomb County retirement
ordinance, 26(a)).
140. Eight of the collective bargaining agreements contained identical language stating
that
[t]he Employer shall continue the benefits as provided by the presently
constituted Macomb County Employees Retirement Ordinance, and the
Employer and the employee shall abide by the terms and conditions thereof,
provided, that the provisions thereof may be amended by the Employer as
provided by the statutes of the State of Michigan . . . .
Id. at 8687, 833 N.W.2d at 238 (internal quotation marks omitted). The ninth agreement
referred to [e]mployees retiring from the Road Commission of Macomb County and
eligible for benefits under the Macomb County Retirement Ordinance and expressly
referred to a retirement benefit option. Id. at 88, 833 N.W.2d at 239.
141. Id. at 72, 833 N.W.2d at 230.
142. Id. at 7273, 833 N.W.2d at 230.
143. Id. at 73, 833 N.W.2d at 230.
144. Id.
145. Id.

660

WAYNE LAW REVIEW

[Vol. 60:643

the discretion to adopt the new table.146 The Unions filed an unfair labor
practice complaint with the MERC.147 The matter proceeded through
adjudication under an administrative law judge (ALJ), who issued a
recommended decision concluding that while actuarial assumptions are
mandatory subjects of bargaining under PERA, the underlying CBAs
contained provisions covering the pension benefits.148 When the County
incorporated the ordinance into the collective bargaining agreements, it
fulfilled its duty to bargain; while the meaning of actuarial equivalence
might be disputed, it was an issue subject to the grievance and arbitration
procedure contained in the CBAs.149
The MERC rejected the ALJs recommended decision, concluding
instead that the actuarial assumptions . . . were never memorialized in
the Retirement Ordinance or any of the collective bargaining agreements
referencing the Retirement Ordinance.150 The MERC also stated that the
longstanding reliance on the prior table constituted a tacit agreement that
the practice would continue (i.e., a past practice).151 According to the
MERC, the County had violated its duty to bargain and was required to
revert to the prior actuarial table.152 The court of appeals affirmed in a
split opinion, and the Michigan Supreme Court granted leave to
appeal.153
The supreme court began its analysis by discussing PERAs impact
on public sector labor relations in Michigan.154 Most notably, it examined
PERAs requirement that all parties are obliged to bargain in good faith
and that each party can fulfill this statutory duty by memorializing
resolution of a subject in a collective bargaining agreement.155 Thus,
when parties negotiat[e] for a provision in the collective bargaining
agreement that fixes the parties rights, mandatory bargaining is
foreclosed because the matter is now covered by the agreement.156
146. Id.
147. Id. at 73, 833 N.W.2d at 23031.
148. Id. at 74, 833 N.W.2d at 231.
149. Id.
150. Id. at 7475, 833 N.W.2d at 231.
151. Id. at 75.
152. Id.
153. Macomb County v. AFSCME Council 25, 491 Mich. 915, 834 N.W.2d 874
(2012).
154. Macomb County, 494 Mich. at 78, 833 N.W.2d at 233; see MICH. COMP. LAWS
ANN. 423.201423.217 (West 2014).
155. Macomb County, 494 Mich. at 7880, 833 N.W.2d at 23334 (citing Port Huron
Ed. Assn v. Port Huron Area Sch. Distr., 452 Mich. 309, 31718, 550 N.W.2d 228, 234
(1996)).
156. Id. at 79, 833 N.W.2d at 234 (citation omitted) (quoting Port Huron Ed. Assn,
452 Mich. at 318, 550 N.W.2d at 234).

2015]

EMPLOYMENT AND LABOR LAW

661

Accordingly, when the parties memorialize an agreement in this way,

each party has a right to reasonably rely on the agreement as the
statement of its obligations on any topic covered by the agreement.157
As noted by the court, both Michigan courts and the MERC have
recognized that only certain disputes can be raised as unfair labor
practice charges before the MERC.158 The MERC does not involve itself
with contract interpretation disputes if a collective bargaining agreement
covers the dispute and also contains a grievance procedure for the
dispute culminating in arbitration.159 To determine whether a collective
bargaining agreement covers a dispute, the MERC often must review the
terms of the agreement.160 If the agreement covers the term or condition
in dispute, then the details and enforceability of the provision is left to
arbitration.161 This is generally referred to as the covered by
doctrine.162
However, this limitation on the MERCs jurisdiction itself can be
bypassed.163 Specifically, a party can bring an unfair labor practice
complaint before the MERC when a party changes a term or condition of
employment, even if a collective bargaining agreement controls, but only
when the new term or condition amounts to an amendment of the
collective bargaining agreement.164 This often is referred to as a past
practice, which effectively creates or amends the collective bargaining
agreement.165 In Macomb County, the Unions argued that the twentyfour-year past practice of using the female actuarial tables amounted to
such an amendment of the collective bargaining agreements.166
Prior to determining whether a past practice has created or amended
the terms and conditions of a bargaining agreement, there first must be a
determination of whether the language in the collective bargaining
agreement is ambiguous.167 If the language in the collective bargaining
157. Id. at 80, 833 N.W.2d at 234 (quoting Port Huron Ed. Assn, 452 Mich. at 327,
550 N.W.2d at 238).
158. Id. at 8081, 833 N.W.2d at 23435.
159. Id.
160. Id.
161. Id. at 80, 833 N.W.2d at 235 (quoting Port Huron Ed. Assn, 452 Mich. at 321,
550 N.W.2d at 236).
162. See, e.g., Port Huron Ed. Assn, 452 Mich. at 309, 550 N.W.2d at 228; Dept of
Navy v. Fed. Labor Relations Auth., 962 F.2d 48 (D.C. Cir. 1992).
163. Macomb County v. AFSCME Council 25, 494 Mich. 65, 81, 833 N.W.2d 225,
235 (2013).
164. Id. at 89, 833 N.W.2d at 239.
165. Id.
166. Id. at 8889, 833 N.W.2d at 239.
167. Id. at 81, 833 N.W.2d at 239; see also Port Huron Ed. Assn, 452 Mich. at 323
24, 550 N.W.2d at 237.

662

WAYNE LAW REVIEW

[Vol. 60:643

agreement is ambiguous, even a tacit agreement to continue the past

practice creates a new term or condition of employment, which cannot be
modified without collective bargaining.168 If the language is
unambiguous, however, a much higher standard regarding past practice
must be met.169
According to the court in Macomb County, to overcome an
unambiguous provision in a collective bargaining agreement, a party
must show that there was a meeting of the minds as to the new terms or
conditions, and an agreement to modify the contract.170 Further, the past
practice must be both widely acknowledged and mutually accepted.171
Thus, the court stressed, to defeat unambiguous contract language, even
in the face of conflicting and longstanding past practice, the charging
party faces an exceedingly high burden.172 As stated by the court, [a]ny
lesser standard would defeat the finality in collective bargaining
agreements and would blur the line between statutory unfair labor
practice claims and arbitrable disagreements over the interpretation of
collective bargaining agreements.173
Applying these standards, the court disagreed with both the court of
appeals and the MERC, holding instead that the use of the term
actuarial equivalence in the retirement ordinance was unambiguous.174
The court further held that the retirement ordinance was incorporated in
the collective bargaining agreements (either expressly or implicitly), and
to the extent that the ordinance governed the benefit plans, disputes
regarding it were covered by collective bargaining agreement.175
Therefore the grievance procedure [was] the appropriate avenue for the
charging parties claims and not an unfair labor practice charge before
MERC.176
Lastly, the court stated that the evidence the Unions presented before
the ALJ did not meet the exceedingly high standard required to establish
past practice, in light of the unambiguous use of the phrase actuarial
equivalence.177 Therefore, absent mutual agreement, the mere lengthy
168. Macomb County v. AFSCME Council 25, 294 Mich. App. 149, 162, 818 N.W.2d.
384, 392 (2011), revd, 494 Mich. 65, 833 N.W.2d 225 (2013); see also Port Huron Ed.
Assn, 452 Mich. at 32526, 550 N.W.2d at 23738.
169. Macomb County, 494 Mich. at 8182, 833 N.W.2d at 235.
170. Id. at 8182, 833 N.W.2d at 235 (citing Port Huron Ed. Assn, 452 Mich. at 309,
550 N.W.2d at 228).
171. Id.
172. Id. at 82, 833 N.W.2d at 235.
173. Id.
174. Id. at 85, 833 N.W.2d at 237.
175. Id.
176. Id. at 8688, 833 N.W.2d at 23839.
177. Id. at 89, 833 N.W.2d at 239.

2015]

EMPLOYMENT AND LABOR LAW

663

use of the female actuarial table did not create a past practice
independent of the collective bargaining agreements.178 Accordingly, the
court reversed and remanded to the MERC for dismissal.179
The dissent, written by Justice Bridget M. McCormack and
concurred in by Justice Michael F. Cavanagh, agreed that the calculation
of retirement benefits was a mandatory subject of collective bargaining,
that the parties collective bargaining agreements covered the calculation
of retirement benefits, and that the term actuarial equivalence was
unambiguous.180 The dissent stated that it would have even agreed with
the majority about the outcome of the case, absent one significant
issuewhether there was, in fact, an intentional and mutually agreed
upon modification of the contract (i.e., a past practice).181 The dissent
focused on the twenty-four-year use of the female actuarial table and
noted that this longstanding course of conduct and the persistent decision
to use a specific formula, including its memorialization into the
retirement ordinance, did meet the high standard of proof required to
show that the parties practice amended the contract term.182 Thus, the
dissent would have held that the charging parties have submit[ted]
proofs illustrating that the parties had a meeting of the minds with
respect to the new terms or conditionsintentionally choosing to reject
the negotiated contract and knowingly act in accordance with the past
practice.183
B. Michigan Employment Security Act
In Logan v. Manpower of Lansing, Inc.,184 the Michigan Court of
Appeals addressed when an individual seeking unemployment benefits
can be disqualified for voluntarily leaving her position without good
cause under Michigans Employment Security Act (MESA).185
Janice Logan began working for Manpower of Lansing, Inc.
(Manpower), a temporary-staffing agency, in April 2008, and was
assigned to work part-time as a receptionist at Pennfield Animal
178. Id. at 92, 833 N.W.2d at 241.
179. Id.
180. Id. at 9293, 833 N.W.2d at 241 (McCormack, J., dissenting).
181. Id. at 9495, 833 N.W.2d at 242.
182. Id.
183. Id. (alteration in original) (citation omitted) (quoting Detroit Police Officers
Assn v. City of Detroit, 452 Mich. 339, 345, 551 N.W.2d 349, 351 (1996)) (internal
quotation marks omitted).
184. Logan v. Manpower of Lansing, Inc., 304 Mich. App. 550, 847 N.W.2d 679
(2014).
185. Id. at 522, 847 N.W.2d at 680; see Michigan Employment Security Act (MESA),
MICH. COMP. LAWS ANN. 421.1421.75 (West 2014).

664

WAYNE LAW REVIEW

[Vol. 60:643

Hospital.186 In August 2008, Logan went on medical leave.187 In October

2008, Logan was able to return to work but did so as a direct hire at
Pennfield rather than as an assigned employee through Manpower.188
Logan returned to work with a medical restriction limiting her to four
hours per day or less and no more than three days per week.189 These
restrictions were lifted in January 2009, but Logan never worked fulltime at Pennfield.190 She was laid off at the end of January 2009.191
Logan sought unemployment benefits from Michigans
Unemployment Insurance Agency (UIA).192 The UIA initially granted
benefits, finding that Logan was not disqualified under the MESA.193
Manpower protested the determination.194 Even though Logan was
seeking unemployment benefits in relation to her layoff from Pennfield,
under the MESA, she could not receive benefits without establishing that
she had left work voluntarily in October 2008 from Manpower.195
Following a hearing, an ALJ ruled that Logan was not entitled to
benefits under section 29(1)(a) of the MESA, under which an individual
is disqualified from benefits if she left work voluntarily without good
cause attributable to the employer.196 According to the ALJ, [Logan]
did not leave Manpower in order to accept permanent full-time work
with Pennfield; instead, she abandoned her job with Manpower and
took a part-time job with the client company.197
The Michigan Employment Security Board of Review198 affirmed.199
Logan requested rehearing, asserting that she did not leave Manpower to
accept part-time work with Pennfield but to accept full-time work.200 She
also argued that she did, in fact, work full time for a period at
Pennfield.201 If true, these facts would qualify Logan for unemployment
186. Logan, 304 Mich. App. at 552, 847 N.W.2d at 680.
187. Id.
188. Id.
189. Id.
190. Id.
191. Id.
192. Id. at 55253, 847 N.W.2d at 680.
193. Id. at 553, 847 N.W.2d at 680.
194. Id.
195. Id. at 556 n.2, 847 N.W.2d at 682 n.2. For information on the allocation of
benefits, see MICH. COMP. LAWS ANN. 421.29 (West 2014).
196. Logan, 304 Mich. App. at 556, 847 N.W.2d at 682 (quoting MICH. COMP. LAWS
ANN. 421.29(1)(a)).
197. Id. at 553, 847 N.W.2d at 680.
198. The Michigan Employment Security Board of Review is now the Michigan
Compensation Appellate Commission.
199. Logan, 304 Mich. App. at 553, 847 N.W.2d at 681.
200. Id.
201. Id.

2015]

EMPLOYMENT AND LABOR LAW

665

under section 29(5), which provides that [i]f an individual leaves work
to accept permanent full-time work with another employer she is not
disqualified for benefits under section 29(1)(a).202 Thus, Logan sought
rehearing to fully develop the record regarding whether Pennfield had
offered full-time, permanent employment to her.203
On remand, the ALJ heard testimony from Pennfields owner that:
Logan worked part time for him for approximately three months; on
Logans new employee information sheet, Logan selected the box
indicating part-time work; and even after Logans medical restrictions
were lifted in January, she continued to work part-time.204
Unsurprisingly, the ALJ found that Logan quit her job with Manpower to
take a part-time position with Pennfield and thus was disqualified for
benefits.205 The ALJs decision was affirmed, and Logan appealed to the
circuit court.206
There, Logan argued that Manpower and Pennfield should be
considered joint employers because she had performed the same work for
each.207 If Manpower and Pennfield were joint employers, Logan never
left her prior employment and so would qualify for benefits.208 The
circuit court was not persuaded and affirmed Logans disqualification.209
The Michigan Court of Appeals granted leave, stating that the issue
was the effect of claimant stopping to work for Manpower and starting
to work for Pennfield in October 2008.210 Logan first argued that
because her work did not change when she started at Pennfield, she never
left work under section 29 of the MESA.211 The court summarily
addressed this argument, stating that while work is not defined in the
statute, it is easily understood as being synonymous with
employment.212 The legislative intent is clear when the phrase is
viewed in its entirety: Left work voluntarily without good cause
attributable to the employer or employing unit.213 In drafting the statute,
the legislature was referring to a particular employer, and not just any
202. Id. at 553, 556, 847 N.W.2d at 680, 682 (citing MICH. COMP. LAWS ANN.
421.29(5) (West 2014)).
203. Id. at 553, 847 N.W.2d at 680.
204. Id. at 55354, 847 N.W.2d at 681.
205. Id. at 554, 847 N.W.2d at 681.
206. Id.
207. Id.
208. Id.
209. Id.
210. Id. at 556, 847 N.W.2d at 682.
211. Id.
212. Id.
213. Id. (quoting MICH. COMP. LAWS ANN. 421.29(1)(a) (West 2014)).

666

WAYNE LAW REVIEW

[Vol. 60:643

general employer.214 The court of appeals found the circuit court had
correctly applied the law and also was correct in noting that if an
individual voluntarily leaves work to accept part-time employment, she
cannot invoke section 29(5), which requires the individual to leave a
position only for permanent full-time work.215
The court of appeals also concluded that the circuit court had
properly applied the substantial evidence standard when reviewing the
agencys factual findings regarding whether Logan accepted part time
instead of full-time employment with Pennfield.216 The substantial
evidence test requires deference to an agency decision if there is
evidence that a reasonable person would accept as sufficient to support
the agencys conclusion.217 The circuit court had concluded that there
was evidence to support the conclusion that the claimant left her position
to assume part-time employment, including the owners testimony and
the fact that Logan checked the part-time box on her new employee form
at Pennfield.218
The court next rejected Logans argument that she was never
actually unemployed under the MESA and so should not be
disqualified for benefits.219 The court observed that section 29(1)(a) does
not require an individual to have been unemployed in order to be
disqualified from receiving benefits.220 Instead, it merely requires that the
person leave work voluntarily without good cause attributable to the
employer.221 Also found wanting was Logans contention that her
starting work at Pennfield should not be considered as voluntarily
leaving Manpower.222 Relying on Thomas v. Employment Security
Commission,223 which held that an employee voluntarily leaves his or her
job if the separation is the product of the employees hopes, wishes, and
intent,224 the Logan court found clear evidence that it was Logans hope,
wish, and intent to quit working for Manpower.225

214. Id.
215. Id.
216. Id.
217. Id. (citing Dowerk v. Oxford Charter Twp., 233 Mich. App. 62, 592 N.W.2d 724
(1998)).
218. Id. at 557, 847 N.W.2d at 683.
219. Id. at 558, 847 N.W.2d at 683 (citing MICH. COMP. LAWS ANN. 421.48(1) (West
2014)).
220. Id.
221. Id.
222. Id.
223. Thomas v. Empt Sec. Comm., 356 Mich. 665, 97 N.W. 2d 784 (1959).
224. Id. at 669, 97 N.W.2d at 786.
225. Logan, 304 Mich. App. at 558, 847 N.W.2d at 683.

2015]

EMPLOYMENT AND LABOR LAW

667

Lastly, the court addressed Logans joint employer argument.226

Logan relied on the MESA definition of employing unit, which states
that [e]ach individual employed to perform or to assist in performing
the work of any agent or employee of an employing unit shall be
considered to be employed by that employing unit for all purposes of this
act . . . .227 According to the court, the purpose of this definition is to
prevent employers from using agents to hire individuals to perform
work and then deny that those individuals were actually employed by
those employers, and so the definition was inapplicable to the facts at
hand.228 Further, Logan failed to explain how Manpower was an agent or
employee of Pennfield, or vice versa.229 Logan offered no evidence that
either employer had authority to bind the other party evidencing an
agency relationship.230 The MESA explicitly recognizes the existence of
temporary-staffing firms, defined as employer[s] whose primary
business is to provide a client with the temporary services of 1 or more
individuals under contract with the employer . . . .231 The court found no
factual basis to support the existence of an agency relationship and no
statutory basis to support Logans argument that Manpower and
Pennfield were joint employers or a single employing unit under the
MESA.232 Accordingly, the court affirmed the circuit courts decision
denying Logans claim for unemployment benefits.233
IV. EMPLOYMENT CONTRACTS
In Klein v. HP Pelzer Automotive,234 the Michigan Court of Appeals
confronted the interpretation and enforcement of a severance agreement,
which ironically arose from an employers attempt to keep an employee
under its employ, rather than trying to separate from the employee.235
During the economic downturn of 2009, HP Pelzer Automotive (HP
Pelzer) underwent a radical restructuring of its business.236 An
inevitable result of this was the loss of some employees; however, HP
226. Id.
227. Id. at 55859, 847 N.W.2d at 683 (quoting MESA, MICH. COMP. LAWS ANN.
421.40 (West 2014)).
228. Id. at 559, 847 N.W.2d at 683.
229. Id.
230. Id.
231. Id. at 559, 847 N.W.2d at 684 (quoting MICH. COMP. LAWS ANN. 421.29(1)(I)).
232. Id.
233. Id.
234. Klein v. HP Pelzer Auto. Sys., Inc., 306 Mich. App. 67, 854 N.W.2d 521 (2014),
leave to appeal denied, 497 Mich. 959, 858 N.W.2d 465 (2015).
235. Id. at 69, 854 N.W.2d at 523.
236. Id. at 6970, 854 N.W.2d at 523.

668

WAYNE LAW REVIEW

[Vol. 60:643

Pelzer wished to retain certain key individuals during the restructuring,

including Douglas and Amy Klein.237 HP Pelzers President/CEO, Dean
Youngblood, wrote to the Kleins on November 2, 2009, documenting the
companys commitment to the Kleins continued employment with the
company and acknowledging that if your employment . . . is
terminated or ended in any manner in the future you will be entitled to a
minimum severance pay equal to 1(one) [sic] full year compensation.238
The Kleins continued to work for HP Pelzer throughout the
restructuring.239
Nearly two years later, on June 7, 2011, the new president of the
company wrote to the Kleins stating that because the restructuring was
complete and the companys economic difficulties had passed, the
severance terms outlined therein [in the November 2009 letter] are
hereby rescinded effectively immediately.240 The next day, the Kleins
jointly hand-delivered a letter to the company stating that the rescission
letter was not legally binding and was categorically rejected by
them.241 In addition, the letter stated that Mr. and Mrs. Klein are
seriously considering retirement from HP Pelzer and would like a
computation from the company of the amount of the severance payment
they can each expect to receive based on the referenced letter
agreements.242 On July 19, 2011, the Kleins sent separate letters of
resignation effective August 2, 2011.243
The Kleins filed a three-count suit against HP Pelzer alleging breach
of express contract, breach of implied contract, and promissory
estoppel.244 Prior to the close of discovery, the Kleins filed a motion for
summary disposition under MCR 2.116(c)(10), arguing that the 2009
letters were unilateral offers of severance payments, which the Kleins
accepted by continuing to work after the offers were made.245 HP Pelzer
countered that because it did not terminate or end the Kleins
employment, they were not entitled to severance, and the 2009 letters
articulated a policy, not a contract, which the company could revoke or
amend at any timewhich it did on June 7, 2011.246 HP Pelzer also

237.
238.
239.
240.
241.
242.
243.
244.
245.
246.

Id. at 70, 854 N.W.2d at 523.

Id.
Id.
Id. at 7071, 854 N.W.2d at 52324.
Id. at 7172, 854 N.W.2d at 524.
Id. at 72, 854 N.W.2d at 524.
Id.
Id.
Id.
Id. at 7273, 854 N.W.2d at 524.

2015]

EMPLOYMENT AND LABOR LAW

669

argued that the prior president lacked the authority to bind the company
to the alleged promises for severance pay.247
The trial court concluded that the 2009 letters were clear and
unambiguous offers of severance pay but that summary disposition was
premature because discovery was necessary on the question of
Youngbloods actual authority to bind HP Pelzer to the severance pay
contracts.248
After discovery concluded, the parties all sought summary
disposition.249 In their motion, the Kleins argued that HP Pelzer had
failed to produce any evidence that Youngblood lacked actual authority
to bind the company to the severance pay contracts.250 In response, HP
Pelzer argued that Youngblood lacked actual authority because he was
obligated to follow the companys policies, which included a policy
stating that compensation benefits could be modified or revoked at any
time.251 In support of its motion, HP Pelzer contended that the plain
language of the 2009 letters did not allow for severance upon resignation
because the letters were intended to encourage continued employment
and not voluntary resignation.252 Additionally, HP Pelzer argued they
only intended to pay the severance benefit during the period of
restructuring.253 Further, if continuing to work after receiving the 2009
letters constituted acceptance of the severance agreement, then
continuing to work after receiving the 2011 letters constituted acceptance
of revocation of the offers.254 Lastly, HP Pelzer reiterated its argument
that Youngblood lacked actual authority to make an irrevocable promise
on behalf of HP Pelzer.255
The trial court concluded that HP Pelzer had not proffered evidence
to refute the Kleins assertion that Youngblood had actual authority to
bind HP Pelzer and again concluded that the 2009 letters were promises
to pay, entitling the Kleins to severance pay upon their resignations.256 In
addition, the trial court concluded that the fact that the Kleins continued
to work after the 2009 severance offer constituted acceptance, precluding
HP Pelzer from subsequently revoking the offer.257 Accordingly, the
247.
248.
249.
250.
251.
252.
253.
254.
255.
256.
257.

Id.
Id. at 73, 854 N.W.2d at 525.
Id.
Id.
Id. at 7374, 854 N.W.2d at 525.
Id.
Id. at 74, 854 N.W.2d at 525.
Id.
Id.
Id.
Id.

670

WAYNE LAW REVIEW

[Vol. 60:643

court awarded severance payments to the Kleins and dismissed the

breach of implied contract and promissory estoppel claims as moot.258
HP Pelzer appealed.259
Because the trial court and the parties had relied on Cain v. Allen
Electric & Equipment Co.,260 the court of appeals first addressed that
case.261 In Cain, the employer issued a personnel policy with a
termination provision stating that an executive having 5 to 10 years
employment should be entitled to 2 months termination pay.262 The
policy also stated that such policies cannot be complete and are subject
to change or amendments . . . .263 Cain eventually resigned, but before
the effective date of the resignation, he was fired.264 Allen Electrics
board of directors voted to deny termination pay to Cain.265 The
Michigan Supreme Court held that the companys termination policy was
an offer of a contract, which was accepted when Cain continued to work
beyond the five-year term required by the policy.266 Thus, because the
employee had accepted the offer, the employer could not unilaterally
change its policy and deny the employee termination pay.267
The court of appeals in Klein found Cain to be factually
distinguishable.268 The 2009 letters sent by HP Pelzer to the Kleins did
not create unilateral severance pay contracts because the letters did not
require any consideration by the Kleins.269 This contrasted with Cain,
where an employee was required to work between five to ten years to
earn the termination pay; that constituted consideration.270 In addition,
although the 2009 letters stated that their purpose was to encourage
continued employment, the Kleins did not have to stay in order to
immediately collect the severance.271 As evidence of such, the appellate
court focused on the statement in the letter that if the Kleins
employment terminated or ended in any manner in the future, they
would be entitled to severance pay.272 Because no consideration was
258.
259.
260.
261.
262.
263.
264.
265.
266.
267.
268.
269.
270.
271.
272.

Id.
Id. at 75, 854 N.W.2d at 525.
Cain v. Allen Elec. & Equip. Co., 346 Mich. 568, 78 N.W.2d 296 (1956).
Klein, 306 Mich. App. at 76-77, 854 N.W.2d at 526.
Id. (quoting Cain, 346 Mich. at 571, 78 N.W.2d at 297).
Id. at 77, 854 N.W.2d at 526 (quoting Cain, 346 Mich. at 570, 78 N.W.2d at 296).
Id. at 77, 854 N.W.2d at 527 (quoting Cain, 346 Mich. at 571, 78 N.W.2d at 296).
Id.
Id.
Id.
Id. at 7778, 854 N.W.2d at 527.
Id. at 78, 854 N.W.2d at 527.
Id.
Id.
Id.

2015]

EMPLOYMENT AND LABOR LAW

671

required for the severance payment, the letters stated a policy of a

gratuity and not binding unilateral offers of contract.273 Consequently,
the court found that the letters created nothing more than a policy by the
employer that could be modified or revoked by the company, which it
did by the 2011 revocation letter.274 By the time the Kleins resigned, the
severance pay policy was no longer in place, and they had no right to that
pay.275
Because the court of appeals reversed the trial courts finding of an
express unilateral contract, the court also had to address the Kleins
breach of implied contract and promissory estoppel claims.276
The Kleins breach of implied contract claim derived from the
discharge-for-cause doctrine enunciated in Toussaint v. Blue Cross &
Blue Shield of Michigan.277 In Toussaint, the Michigan Supreme Court
held that an employment contract stating that an employee could not be
discharged but for cause was legally enforceable, even if the contract was
for an indefinite term.278 The just cause provision could become part of
the contract either: (1) by express agreement (oral or written), which
required negotiation, or (2) as a result of an employees legitimate
expectations based on the employers policy statements.279 Thus, a
plaintiff told that he was doing the job could not be discharged if a jury
found that he had a legitimate expectation (or an implied contract)
grounded in the employers written policy statements.280
The court also reviewed the case In re Certified Question,281 where
the Michigan Supreme Court held that the employer, without explicit
reservation of that right, could unilaterally modify a written dischargefor-cause policy.282 The court reasoned that the enforceability of written
personnel policies arises from the benefit the employer derives from
establishing such policies and not because they have been accepted by
employees.283 Therefore, a policy should be considered a flexible
framework for operational guidance and not a perpetually binding
contractual obligation.284 As such, an employer may unilaterally revise
273. Id. at 79, 854 N.W.2d at 528.
274. Id.
275. Id.
276. Id. at 80.
277. Toussaint v. Blue Cross & Blue Shield of Mich., 408 Mich. 579, 292 N.W.2d 880
(1980).
278. Id. at 59799, 292 N.W.2d at 88485.
279. Id.
280. Id.
281. In re Certified Question, 432 Mich. 438, 443 N.W.2d 112 (1989).
282. Id. at 441, 443 N.W.2d at 113.
283. Id.
284. Id. at 456, 443 N.W.2d at 120.

672

WAYNE LAW REVIEW

[Vol. 60:643

its written discharge-for-cause policy, as long as reasonable notice of

the change [is] uniformly given to affected employees.285
The Klein court also noted that Michigan courts have not extended
Toussaints legitimate expectations test to severance pay policies and
declined to do so in that case.286 Further, even if the court were to
conclude that the Kleins had legitimate expectations of severance pay,
HP Pelzer had properly revoked its policy with the June 2011 letters.287
Lastly, the court addressed the Kleins argument that they had expressly
rejected the June 2011 letter revoking the severance pay policy.288 The
court stated that because no agreement for severance existed, the
employer could unilaterally change its policy without the Kleins
agreement.289 Accordingly, the Kleins breach of implied contract claim
could not survive summary disposition.290
The courts analysis of the Kleins promissory estoppel claim was
significantly briefer. The elements of promissory estoppel are: (1) a
promise, (2) that the promisor should reasonably have expected to induce
action . . . on the part of the promisee, and (3) that in fact produced
reliance or forbearance . . . such that the promise must be enforced to
prevent injustice.291 As articulated earlier, the court found that the 2009
letters were not promises, but instead, were policies that could be
changed at will.292 Therefore, even assuming that the 2009 letters were
promises, HP Pelzer could not have reasonably expected its 2011
revocation of the 2009 letters to induce the Kleins to resign within a
month.293 The Kleins promissory estoppel claim thus also was subject to
summary disposition.294

285. Id. at 45657, 443 N.W.2d at 120.

286. Klein v. HP Pelzer Auto. Sys., Inc., 306 Mich. App. 67, 82, 854 N.W.2d 521, 529
(2014), leave to appeal denied, 497 Mich. 959, 858 N.W.2d 465 (2015).
287. Id.
288. Id.
289. Id.
290. Id. at 83, 854 N.W.2d at 530.
291. Id. (quoting Novak v. Nationwide Mut. Ins. Co., 235 Mich. App. 675, 68687,
559 N.W.2d 546, 552 (1999)).
292. Id.
293. Id.
294. Id.

WORKERS DISABILITY COMPENSATION

MARTIN L. CRITCHELL
I. INTRODUCTION .................................................................................. 673
II. HOUSE BILL 5489: A NEW EXCEPTION TO HEARING FROM THE
EMPLOYER WHEN AN EMPLOYEE SETTLES.................................... 674
III. THOMAI V. MIBA HYDRAMECHANICA CORP.: THE INTENTIONAL
TORT EXCEPTION APPLIED ............................................................. 676
IV. NICHOLS V. HOWMET CORP.: THE EXCEPTION TO REASSIGNING
LIABILITY REITERATED .................................................................. 678
V. LEWANDOWSKI V. OEM RESOURCING INC.: AN EXCEPTION TO THE
JURISDICTION OF THE APPELLATE COMMISSION RECOGNIZED ..... 680
VI. JACKSON V. SEDGWICK CLAIMS MANAGEMENT SERVICES, INC. (ON
REHEARING): RICO IS NO EXCEPTION............................................ 683
VII. CONCLUSION ................................................................................. 685
I. INTRODUCTION
Many sections of the Workers Disability Compensation Act of 1969
(WDCA)1 contain an exception. The section that requires reducing wage
loss compensation by some of the retirement income paid by an
employer and at the same time applies to all employees with a disability
from an injury at work2 has an exception for public service employees.3
Some sections have two exceptions. The section that limits the
retroactive wage loss compensation to the two years before an employee
filed a claim4 does not apply when the claim is for wage loss
compensation from the Self-Insurers Security Fund5 or when the claim is
for the reinstatement of wage loss compensation that the employer had
Shareholder, Conklin Benham, P.C. Adjunct Professor of Law, Thomas M.
Cooley Law School. B.A., 1973, Western Michigan University; J.D., 1976, Wayne State
University. The author is a member of the Michigan Supreme Court Historical Society,
the Advocates Guild of the Michigan Supreme Court Historical Society, the American
Society of Writers on Legal Subjects (The Scribes), and the Federalist Society for Law
and Public Policy Studies. He is also a contributing author to Employment Law In
Michigan (An Employers Guide), Institute of Continuing Legal Education (2012) and
Michigan Insurance Law and Practice, Institute of Continuing Legal Education (2002).
1. MICH. COMP. LAWS ANN. 418.101418.941 (West 2014).
2. Id. 418.354(1)(a)(f).
3. Id. 418.354(15).
4. Id. 418.381(2).
5. Id. 418.537(3).

673

674

WAYNE LAW REVIEW

[Vol. 60:673

paid for a period of time.6 One section even has four exceptions. The
section that bars an employee from suing an employer for damages from
an injury sustained at work7 does not apply when the employer
intentionally injured the employee,8 when the employer forced the
employee to masquerade as an independent contractor,9 when the
employer did not have workers compensation insurance or the approval
by the Director of the Workers Compensation Agency to self-insure,10
or when the injury was sustained during social or recreational activity.11
Exceptions to particular sections in the WDCA were the subject of
all of the legislation and important case law decided between June 30,
2013 and June 30, 2014.
II. HOUSE BILL 5489: A NEW EXCEPTION TO HEARING FROM THE
EMPLOYER WHEN AN EMPLOYEE SETTLES
Section 835 in the WDCA allows an employee to resolve a claim to
workers compensation with a lump sum settlement known as a
redemption of liability.12 That same section requires the consent of a
magistrate on the Workers Compensation Board of Magistrates.13
Section 836 allows a magistrate to consent and approve a settlement
of a claim only with the consent of the employer:
A redemption agreement shall only be approved by a workers
compensation magistrate if the workers compensation
magistrate finds all of the following:
....
(b) That the redemption agreement is voluntarily agreed to by all
parties. If an employer does not object in writing or in person to

6. Id. 418.833(1).
7. Id. 418.131(1).
8. Id.
9. Id. 418.171(4).
10. Id. 418.641(2).
11. Id. 418.301(3).
12. MICH. COMP. LAWS ANN. 418.835(1). Two decisions by the Michigan Court of
Appeals during this time were reversed afterward. Younkin v. Zimmer, 304 Mich. App.
719, 848 N.W.2d 488 (2014), revd, 497 Mich. 7, 857 N.W.2d 244 (2014); Auto-Owners
Ins. Co. v. All Star Lawn Specialists Plus, Inc., 303 Mich. App. 288, 845 N.W.2d 744
(2013), revd, 497 Mich. 13, 857 N.W.2d 520 (2014).
13. MICH. COMP. LAWS ANN. 418.835(1).

2015]

WORKERS' DISABILITY COMPENSATION

675

the proposed redemption agreement, the employer shall be

considered to have agreed to the proposed agreement.14
On June 27, 2014, the WDCA was amended to establish an
exception to this long-standing requirement that a magistrate could
approve a settlement of a claim to workers compensation only with the
consent of the employer.15 The new exception allows a magistrate to
approve a settlement without the consent of the employer in one
situation.16 The employer must have been approved to self-insure its
liability for workers compensation by the Director of the Workers
Compensation Agency in May 1999, filed for bankruptcy in 2005, and
become insolvent and unable to pay workers compensation to eligible
employees between May 28, 1999 and October 7, 2009.17 Specifically,
the statute now says:
Notwithstanding anything else in this section, the trustees may
authorize payments from the self-insurers security fund that are
requested by a disabled employee or a dependent of a disabled
employee, as described in section 331, of any employer that was
granted authority by the workers compensation agency under
section 611(1)(a) to operate as a self-insurer for the first time in
May of 1999 and filed for bankruptcy in 2005, if the employee is
entitled to workers compensation benefits arising out of
employment during the period from May 28, 1999 to October
2009. The self-insurers security fund may redeem any claim by
a former employee against an employer described in this
subsection if the claimant voluntarily agrees. No other party may
object to that redemption.18
It appears that this exception applies to only one employer: Delphi
Corporation. To the knowledge of the author, Delphi is the only
employer that meets all of the criteria described by the new section 836.
The other amendments to the WDCA that were enacted with Public
Act 548919 extend the rights and responsibilities of the Self-Insurers
Security Fund to the Private Employer Group Self-Insurers Security
Fund that will assume the function of the Self-Insurers Security Fund on
14. Id. 418.836(1).
15. 2014 Mich. Pub. Acts 238 (codified as amended at MICH. COMP. LAWS ANN.
418.537).
16. MICH. COMP. LAWS ANN. 418.537(5).
17. Id.
18. Id.
19. Id. 418.537.

676

WAYNE LAW REVIEW

[Vol. 60:673

January 1, 2020.20 Of course, the putative change may not actually occur
because of events that may intervene in the next five years.21
III. THOMAI V. MIBA HYDRAMECHANICA CORP.: THE INTENTIONAL TORT
EXCEPTION APPLIED
Section 131 of the WDCA bars an employee from suing an employer
for damages from an injury sustained at work by limiting the employee
to workers compensation: The right to the recovery of benefits as
provided in this act shall be the employees exclusive remedy against the
employer.22 The same section describes an exception for an intentional
tort by the employer:
The only exception to this exclusive remedy is an intentional
tort. An intentional tort shall exist only when an employee is
injured as a result of a deliberate act of the employer and the
employer specifically intended an injury. An employer shall be
deemed to have intended to injure if the employer had actual
knowledge that an injury was certain to occur and willfully
disregarded that knowledge. The issue of whether an act was an
intentional tort shall be a question of law for the court.23
The Michigan Supreme Court explained the meaning of this
exception in deciding the case of Travis v. Dries & Krump
Manufacturing Co.24 There, the court recognized that the exception
supplanted the description of intent by the Restatement25 that had been
the standard before enactment of the exception under Beauchamp v. Dow
Chemical Co.26 And then the court explained that intent to establish an
intentional tort under the statute required that the employer must have
had in mind a purpose to bring about given consequences27 that could
be demonstrated from evidence that the employer actually knew that an
injury to the employee was certain; probability was not a question.28
20. 2014 Mich. Pub. Acts 229237.
21. 2014 Mich. Pub. Acts 229.
22. MICH. COMP. LAWS ANN. 418.131(1).
23. Id.
24. 453 Mich. 149, 551 N.W.2d 132 (1996). The author was counsel for amicus
curiae Michigan Self-Insurers Association.
25. RESTATEMENT (SECOND) TORTS 8A, 15 (1965).
26. 427 Mich. 1, 398 N.W.2d 882 (1986). The author was counsel for amicus curiae
Michigan Self-Insurers Association.
27. Travis, 453 Mich. at 171, 551 N.W.2d at 142.
28. Id. at 178, 551 N.W.2d at 145.

2015]

WORKERS' DISABILITY COMPENSATION

677

This ruling was reiterated by the court in deciding the case of Gray v.
Morley.29 The court only added that conduct on the part of [Kevin C.
Morley, the employer] was reckless or deliberately indifferent . . . sound
in gross negligence and are therefore insufficient to constitute an
intentional tort within the meaning of the WDCA.30 But instead of
returning the case to the trial court to assess the record as happened in
Travis, the court assessed the record for itself and dismissed the
lawsuit.31 The court decided that Morley had been reckless by driving a
pick-up truck erratically, knowing Gray was in back, but injury had not
been certain to occur because Morley had done this several times before
without any injury to anyone.32
The court considered the intentional tort exception for the first time
since Gray in Thomai v. MIBA Hydramechanica Corp.33 As in Gray, the
court assessed the record for itself and dismissed the lawsuit by Naum
Thomai because his employer, MIBA Hydramechanica, did not know
that an injury was certain to happen from running a machine.34 The court
stated, There is simply no evidence in the record to establish that
[MIBA Hydramechanica] willfully disregarded knowledge that an injury
was certain to occur to [Naum Thomai] from his operation of the
grooving machine.35
The remarkable feature is that the court did not explain or reiterate
the existing case lawTravis or Graybut simply took it as a given.
Neither Travis nor Gray was cited.36
The court did not need to explain or reiterate the case law. There was
no dispute that Thomai had slipped on some oil, caught a shirtsleeve on
some exposed parts of the machine that he was running, and injured
himself.37 This meant that there had been only a chance of injury because
people often go unscathed when slipping. Whether slipping on some oil,
water or a newly waxed floor, people may regain their balance or upon
falling are only winded or embarrassed. Not everyone is injured from

29. 460 Mich. 738, 596 N.W.2d 922 (1999).

30. Id. at 744, 596 N.W.2d at 925.
31. Id. at 74445, 596 N.W.2d at 92526.
32. Id. at 740, 745, 596 N.W.2d at 92324, 926.
33. 496 Mich. 854, 847 N.W.2d 245 (2014). The author was counsel for amicus
curiae Michigan Self-Insurers Association.
34. Id.
35. Id.
36. See generally id.
37. Thomai v. MIBA Hydramechanica Corp., 303 Mich. App. 196, 202, 842 N.W.2d
417, 422 (2013), revd, 496 Mich. 854, 847 N.W.2d 245 (2014) (reversing the court of
appeals and reinstating the circuit courts judgment in favor of defendants).

678

WAYNE LAW REVIEW

[Vol. 60:673

slipping. And while the likelihood of injury increases because of nearby

objects such as a machine, it remains only a chance, not a certainty.
The court denied Thomai access to the machine and personnel at
MIBA Hydramechanica that the court of appeals had thought was
needed.38 This was correct, because the machine was what had injured
Thomai but not why he had been injured.39 The slip in the oil was why
Thomai had been injured and that was well understood.40
IV. NICHOLS V. HOWMET CORP.: THE EXCEPTION TO REASSIGNING
LIABILITY REITERATED
Before being amended by 2011 Public Act 266,41 section 301 of the
WDCA established an exception to the rule that the liability for wage
loss compensation could be reassigned from one employer to another by
stating that:
If disability is established pursuant to subsection (4), entitlement
to weekly wage loss benefits shall be determined pursuant to this
section and as follows:
....
If the employee, after having been employed pursuant to this
subsection for less than 100 weeks loses his or her job for
whatever reason, the employee shall receive compensation based
upon his or her wage at the original date of injury.42
The Michigan Supreme Court recognized that this language of the
statute acted as an exception in ruling that the language was not about the
amount of the wage loss compensation as the court of appeals had said,
but instead concerned the liability for that compensation between the
employers when an employee had been injured.43 The court said in
Arnold:
The Court of Appeals majority said that the subparts of
subsection 301(5) deal only with the level of benefits paid, not
38. Thomai, 496 Mich. at 854, 847 N.W.2d at 245.
39. Thomai, 303 Mich. App at 202, 842 N.W.2d at 422.
40. See id.
41. 2011 Mich. Pub. Acts 266 (amending MICH. COMP. LAWS ANN. 418.301(5)(e)
(West 2010)).
42. MICH. COMP. LAWS ANN. 418.301(5)(e) (West 2010).
43. Arnold v. General Motors Corp., 456 Mich. 682, 575 N.W.2d 540 (1998). The
author represented defendant-appellee General Motors Corp.

2015]

WORKERS' DISABILITY COMPENSATION

679

whether they are to be paid in a particular circumstance.

However, that oversimplifies the analysis of the statute. Section
301(5)(e) designates the wage at the original date of injury as
the basis for setting benefits. Under the circumstances presented
here, we hold that the statute contemplates that the original
employer is to pay benefits computed using wages at the time of
the original injury.44
The Michigan Court of Appeals reiterated this ruling in Arnold to
decide the case of Nichols v. Howmet Corp.45
The context of Nichols was somewhat different from the immediate
situation in the case of Arnold. Edwin A. Nichols had two injuries at
work, as had Bernetta C. Arnold, but Nichols injured his neck and later
injured his back, unlike Arnold who had injured her back twice.46 This
context was not important. What was important was that both Arnold and
Nichols were injured at work, resumed another job that accommodated
the disability from the injury, and then left the job and all other work
within one hundred weeks.47 The kind of injury that caused Nichols and
Arnold to leave work does not distinguish the two cases because the kind
of injury is not relevant for purposes of the statute:
The successive injury rule applies when either (1) the first injury,
by itself, did not disable the employee, or (2) the first injury was
disabling, but the employee had recovered from it and was no
longer disabled when the second disabling injury occurred. Here,
there was no evidence that when Nichols suffered his low-back
injury in 1998 he was no longer disabled. Thus, the commission
correctly determined that the successive injury rule did not apply
to the facts in this case.48
The court of appeals also denied a claim by Nichols to separate wage
loss compensation for the disability from the two different injuries that
44. Id. at 691, 575 N.W.2d at 54445. The court noted in a footnote, It would make
no sense whatsoever for the subsequent employer, who was paying wages at a lower rate,
to be liable for benefits based on the higher wages of the previous employment. Id. at
691 n.8.
45. 302 Mich. App. 656, 666, 840 N.W.2d 388, 394 (2013), vacated in part and
appeal denied in part, 495 Mich. 988, 844 N.W.2d 722 (2014). The author represented
defendants-appellees Cordant Technologies and Michigan Property & Casualty
Association.
46. Compare Arnold, 456 Mich. at 685, 575 N.W.2d at 54142, with Nichols, 302
Mich. App. at 66062, 840 N.W.2d at 39192.
47. Nichols, 302 Mich. App. at 66062, 840 N.W.2d at 39192.
48. Id. at 67273, 840 N.W.2d at 397 (citations omitted).

680

WAYNE LAW REVIEW

[Vol. 60:673

he sustained at work.49 The statute was not the basis for this decision.
Instead, the court of appeals rejected stacking or contemporaneous
wage loss compensation because he had only one employer that had only
changed its name from Howmet Corporation to Cordant Technologies.50
The court stated, Nichols contends that he is entitled to stack full
wage-loss benefits from each employment . . . . Because Nichols bases
his argument on the faulty premise that he was employed by two
different employers, we reject it.51
The Michigan Supreme Court affirmed these rulings by the court of
appeals and remanded for the consideration of a question that the court of
appeals had thought was not preserved for review.52
V. LEWANDOWSKI V. OEM RESOURCING INC.: AN EXCEPTION TO THE
JURISDICTION OF THE APPELLATE COMMISSION RECOGNIZED
Section 847 of the WDCA requires that a magistrate on the Workers
Compensation Board of Magistrates hear and decide any question about
workers compensation that the parties could not resolve through
mediation.53 The decision by the magistrate is subject to direct review by
the Michigan Compensation Appellate Commission,54 with three
exceptions. MCL section 418.841(9) bars any review of a decision by a
magistrate about a claim to a benefit totaling less than $2,000.55 MCL
section 418.837(2) allows direct review of a decision by a magistrate
about the propriety of a lump sum settlement known as an agreement to
redeem liability56 to the Director of the Workers Compensation Agency
instead of the Appellate Commission.57 And MCL section 418.858(1)
allows direct review of a decision about a fee of a lawyer or doctor by
the Director, not the Appellate Commission.58

49. Id. at 67475, 840 N.W.2d at 398, vacated in part and appeal denied in part, 495
Mich. 988, 844 N.W.2d 722 (2014).
50. Id. at 674, 840 N.W.2d at 398.
51. Id.
52. Nichols v. Howmet Corp., 495 Mich. 988, 944 N.W.2d 722 (2014). The author
represented defendants-appellees Cordant Technologies and Michigan Property &
Casualty Association. The court of appeals fulfilled the mandate after June 30, 2014. For
the court of appeals decision on remand, see Nichols v. Howmet Corp., 306 Mich. App.
215, 855 N.W.2d 536 (2014).
53. MICH. COMP. LAWS ANN. 418.847(1)(3) (West 2014).
54. Id. 418.859a(1).
55. Id. 418.841(9).
56. Id. 418.835(1).
57. Id. 418.837(2).
58. Id. 418.858(1).

2015]

WORKERS' DISABILITY COMPENSATION

681

The third exception to the direct review of a decision by a magistrate

was the subject of Lewandowski v. OEM Resourcing, Inc.59 This
occurred because Krzysztof Lewandowski had filed a claim for review
with the Appellate Commission after a magistrate decided that OEM
Resourcing was not responsible for the fee of a lawyer whom he had
hired.60 The court stated that Lewandowski timely appealed the decision
by the magistrate and raised two issues, the second issue being: The
magistrate failed to properly assess [OEM Resourcings] liability for
attorney fees on unpaid medical expenses.61
The Appellate Commission recognized the third exception to direct
review and dismissed the appeal from that portion of the decision by the
magistrate:
[W]ith regard to [the] second issue, it is not properly before us.
MCL 418.858(1) clearly states, in pertinent part:
The payment of fees for all attorneys and physicians for
services under this act shall be subject to the approval of
a workers compensation magistrate. In the event of
disagreement as to such fees, an interested party may
apply to the bureau for a hearing. After an order by the
workers compensation magistrate, review may be had
by the director if a request is filed within 15 days.
Thereafter the directors order may be reviewed by the
appellate commission on request of an interested party,
if a request is filed within 15 days.
Here there is no evidence in the file that . . . review by the
Director [occurred] within the required time. Consequently, we
have no jurisdiction to review the attorney fee issue.62
This was the first time that the exception to direct review by the
Appellate Commission established by MCL section 418.858(1) was
recognized. Previously, the Appellate Commission had conducted direct
review of a decision by a magistrate resolving a claim that an employer

59. No. 13-0003, 2014 WL 487052 (Mich. Workers Comp. App. Commn Jan. 31,
2014). The author represented OEM Resourcing and Manufacturing Technology Mutual
Insurance Company.
60. Id. at *7.
61. Id. at *5 (citation omitted).
62. Id. at *56 (emphasis added).

682

WAYNE LAW REVIEW

[Vol. 60:673

or workers compensation insurer was responsible for the fee of the

lawyer who had effected the payment of medical bills.63
The recognition of the exception to direct review of a decision of a
magistrate by the Appellate Commission established by MCL section
418.858(1) has two main consequences. First, the exception is not
limited to the disposition of a claim that an employer or compensation
insurer is responsible for some or all of the fee of the lawyer effecting the
payment of medical bills, as in the case of Lewandowski.64 The exception
extends to a decision of a magistrate disposing of the claim to payment
of the bill by a doctor.65 The fee of both lawyers and doctors are included
by MCL section 858(1):
The payment of fees for all attorneys and physicians for services
under this act shall be subject to the approval of a workers
compensation magistrate. In the event of disagreement as to such
fees, an interested party may apply to the bureau for a hearing.
After an order by the workers compensation magistrate, review
may be had by the director if a request is filed within 15 days.
Thereafter the directors order may be reviewed by the appellate
commission on request of an interest party, if a request is filed
within 15 days.66
But this is the extent of the exception. The Appellate Commission
can review a decision by a magistrate about the costs of medical care,
such as prescription medicine or transportation to obtain some
treatment.67 And the recognition of the exception requires two
independent appeals from a single order entered by a magistrate deciding
multiple claims that include the fee of a lawyer or a doctor.68

63. See, e.g., Shattuck v. Aramark Campus, Inc., No. 10-0036, 2011 WL 944451
(Mich. Workers Comp. App. Commn Mar. 14, 2011); Burgard v. Halliday Sand &
Gravel, Inc., No. 07-0074, 2008 WL 649819 (Mich. Workers Comp. App. Commn Mar.
5, 2008); Musselman v. Intl Engg & Mfg., Inc., No. 04-0481, 2007 WL 2069813 (Mich.
Workers Comp. App. Commn July 10, 2007); Beattie v. Wells Aluminum Co., No. 040124, 2005 WL 1651725 (Mich. Workers Comp. App. Commn July 7, 2005).
64. MICH. COMP. LAWS ANN. 418.858(1) (West 2014).
65. Id.
66. Id. (emphasis added).
67. Id. 418.859(a).
68. Id.

2015]

WORKERS' DISABILITY COMPENSATION

683

VI. JACKSON V. SEDGWICK CLAIMS MANAGEMENT SERVICES, INC. (ON

REHEARING): RICO IS NO EXCEPTION
Coca-Cola Enterprises had Clifton E. Jackson examined by Paul
Drouillard, M.D.,69 as allowed by section 385 of the WDCA, which
permits periodic examinations after an employee reports sustaining an
injury at work.70 Dr. Drouillard reported that Jackson was not disabled,
and Coca-Cola Enterprises suspended the payment of any further wage
loss compensation.71 Jackson then filed an application for mediation or
hearing with the Workers Compensation Board of Magistrates for
reinstatement of the wage loss compensation retroactive to the
suspension and sued Coca-Cola Enterprises, Sedgwick Claims
Management Services (the claims administrator), and Dr. Drouillard for
damages under the Racketeering Influenced Corrupt Organizations Act
(RICO).72 Jackson stated that Dr. Drouillard could be relied upon to lie
for defendants and write a report stating a claimant did not have a work
related disability regardless of the true facts . . . .73 Jackson settled the
claims to workers compensation with a lump sum settlement or
agreement to redeem liability that was approved by a magistrate on the
Board of Magistrates, but continued with his lawsuit under RICO.74
The United States Court of Appeals for the Sixth Circuit dismissed
the lawsuit with the ruling that a loss or diminution of benefits [an
injured employee] expects to receive under a workers compensation
scheme does not constitute an injury to business or property under
RICO.75 There were two main reasons for this. One was the difference
in the kind of injury described by RICO and by the WDCA. 76 The court
of appeals recognized that the only kind of injury described by RICO
was an injury to business or property77 and not a personal injury, the kind
of injury described by the WDCA.78 The other reason was that RICO was
not specific enough to warrant supplanting the comprehensive system for
the state to police fraud established by the WDCA.79
69.
2013).
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.

Jackson v. Sedgwick Claims Mgmt. Serv., Inc., 731 F.3d 556, 561 (6th Cir.
Id. 418.385.
Jackson, 731 F.3d at 561.
18 U.S.C.A 1962(c) (West 2014).
Jackson, 731 F.3d at 561.
Id. at 56162.
Id. at 566.
Id. at 55963.
18 U.S.C.A. 1964(c).
Jackson, 731 F.3d at 56566.
Id. at 56869.

684

WAYNE LAW REVIEW

[Vol. 60:673

There was disagreement. A concurring judge thought RICO could

apply because the true nature of [Jacksons] claimed injury . . . is a
harm to the ability to bring a claim for workers compensation and have
that claim fairly adjudicated.80 But this disagreement ignored that the
medical exam and report precipitated the claim to workers
compensation and had not impeded its filing or its fair adjudication
because the lump sum settlement that ended the claim had been approved
by a magistrate on the Board of Magistrates after a hearing.81
A dissenting judge thought that RICO could apply because an
applicant has a property interest when an employer learns of the physical
injury to an employee.82 This was based on section 801 of the WDCA.83
Section 801 says, Compensation shall be paid promptly and directly to
the person entitled thereto and shall become due and payable on the
fourteenth day after the employer has notice or knowledge of the
disability or death, on which date all compensation then accrued shall be
paid.84 The problem with the dissents reasoning is that section 801 does
not create a property interest. An employer can dispute entitlement until
there is a final adjudication.85
The effect of the ruling is that RICO is no exception to the state
system for hearing and deciding a claim to workers compensation
established by the WDCA.86 After deciding Jackson, the Sixth Circuit
stated in Brown v. Ajax Paving Industries, Inc. that:
States can and do impose liability upon peopleemployers as
well as otherswho defraud the workers compensation system.
....
Our decision [in Brown] does not immunize anyone from these
exercises of state power. Our decision means only that federal

80. Id. at 57384 (Moore, J., dissenting).

81. Id. at 561 (majority opinion).
82. Id. at 578 (Moore, J., dissenting).
83. Nezdropa v. Wayne Cnty., 152 Mich. App. 451, 474, 394 N.W.2d 440, 45051
(1987) (citing MICH. COMP. LAWS ANN. 418.801(1) (West 2014)). The author
represented defendant-appellant Michigan State Accident Fund in one of the two cases
that were consolidated for hearing.
84. MICH. COMP. LAWS ANN. 418.801(1).
85. Brown v. Ajax Paving Ind., Inc., 752 F.3d 656, 658 (6th Cir. 2014); see MICH.
COMP. LAWS ANN. 418.841(1); see also Nezdropa, 152 Mich. App. 451, 394 N.W.2d
440.
86. Brown, 752 F.3d at 658.

2015]

WORKERS' DISABILITY COMPENSATION

685

judges may not use [RICO] to seize this power for themselves.
That of course was the whole point of Jackson.87
VII. CONCLUSION
The amendment to the WDCA and all of the important workers
compensation rulings by courts between June 30, 2013 and June 30,
2014 were about exceptions to the WDCA or some putative exception, as
in the case of Jackson v. Sedgwick Claims Management Services, Inc.
Each exception is specific and inelastic. There is no reason to anticipate
that any one of the exceptions will be enlarged, and each exception
remains important by describing a specific alternate and informing the
section of the WDCA that usually applies. It remains that the exception
proves the rule.

87. Id.

EVIDENCE
LOUIS F. MEIZLISH
I. A GENERAL INTRODUCTION AND RULES 10106: PRESERVATION
OF OBJECTIONS AND REVIEW OF EVIDENTIARY RULINGS ............. 689
A. Introduction ............................................................................... 689
B. Appeals and Error...................................................................... 690
1. Issue Preservation................................................................ 690
2. Standard of Review ............................................................. 692
II. RULES 20102: JUDICIAL NOTICE .................................................... 693
III. RULES 30102: PRESUMPTIONS ...................................................... 693
IV. RULES 40115: RELEVANCE, CHARACTER EVIDENCE, OTHER
ACTS OF CONDUCT, RULE 403 BALANCING, AND EVIDENCE OF
COMPROMISE OR SETTLEMENT ...................................................... 693
A. Relevance Generally .................................................................. 693
1. Relevance of a Defendants Concealed-Pistol License in
Felony-Firearm Trials....................................................... 694
2. Relevance of a Defendants Status as a Medical
Marijuana Patient in Criminal Drug-Delivery Cases....... 695
3. Relevance of Post-Petition Facts in Cases Involving
Termination of Parental Rights......................................... 697
B. Other Acts of Conduct................................................................ 700
1. Other Burglaries .................................................................. 702
2. Other Armed Robberies ....................................................... 703
3. Other Acts of Pimping.......................................................... 706
C. Rule 403 Balancing ................................................................... 710
D. Rape-Shield Provisions ............................................................. 711
E. Evidence of Compromise or Settlement ..................................... 713
F. Statements During Plea Negotiations ........................................ 716
V. RULES 50102: PRIVILEGES ............................................................. 720
VI. RULES 60115: WITNESSES ............................................................ 723
A. Impeachment .............................................................................. 723
B.A., 2004, University of Michigan; J.D., 2011, cum laude, Wayne State
University. Member, State Bar of Michigan, 2011present; Editor-in-Chief, Wayne Law
Review, 201011; Editor-in-Chief, The Michigan Daily, 200304. The views I express
herein are solely my own, and do not carry the endorsement of any other person or entity.
I welcome readers feedback via email to meizlish@umich.edu. I could not have
produced this work without the endless support and encouragement from my colleagues,
friends, and, most of all, my parents, Sheldon and Aida Meizlish; my uncle, Leonard
Meizlish; and my fiance, Dr. Erin Miller.

687

688

WAYNE LAW REVIEW

[Vol. 60:687

1. Rule 609: Impeachment with a Witnesss Prior Conviction 723

2. Rule 608(b): Impeachment with a Witnesss Prior Acts of
Dishonesty ......................................................................... 725
3. Impeachment with a Defendants Pre-Trial Silence, or
Silence at a Previous Trial ................................................ 728
a. Raffel v. United States: Impeachment with Silence at
an Earlier Trial During a Defendants Testimony on
Retrial ......................................................................... 728
b. Doyle v. Ohio: Impeachment with Post-Arrest/PostMiranda Silence with Police ....................................... 731
c. Clary, Raffel, and Fifth Amendment Concerns ............. 731
B. Rule 614: Courts Discretion to Question Witnesses................. 732
VII. RULES 70107: LAY AND EXPERT OPINION TESTIMONY .............. 733
A. Opinion Testimony Generally .................................................... 733
1. Lay Opinion ......................................................................... 733
2. Expert Opinion..................................................................... 734
3. Witnesses Testifying to Both Expert Opinion and Facts...... 735
B. Law-Enforcement Officers Opinions Interpreting Wiretap
Recordings ............................................................................... 736
C. Expert Opinion on the Presence of Gunshot Residue on a
Subjects Hands ....................................................................... 741
D. Expert Opinion in Medical-Malpractice Actions as to a
Physicians Breach of a Duty of Care ..................................... 745
E. Appointment and Payment of Expert Witnesses for Indigent
Criminal Defendants................................................................ 748
VIII. RULES 80107: HEARSAY, HEARSAY EXCEPTIONS AND
CONFRONTATION CLAUSE (CRAWFORD) ISSUES ........................... 749
A. Hearsay Situations Generally .................................................... 750
1. Police Detectives Out-of-Court Statements During
Recorded Interviews with Criminal Defendants in Which
the Detectives Comment on the Alleged Victims
Credibility.......................................................................... 750
2. Police Testimony as to the Contents of a 911 Tip to
Establish the Basis for Officers Actions........................... 759
B. Party Opponents Statements and Silence ................................. 763
C. Hearsay Exceptions ................................................................... 770
1. Where the Declarant May or May Not Be Unavailable at
Trial................................................................................... 770
a. Present-Sense Impressions ............................................ 771
b. Past Recollection Recorded........................................... 772
c. Ancient Documents........................................................ 774
d. The State-of-Mind Exception......................................... 776

2015]

EVIDENCE

689

e. The New Notice-and-Demand Provision in the

Federal Rules Public Records Exception .................. 778
f. The Limited Statutory Hearsay Exception for
Documents in Michigan Criminal Cases at the
Preliminary-Examination Stage ................................. 781
2. Where the Declarant is Unavailable at Trial ...................... 782
a. Unavailability Generally............................................... 782
b. Statements Against Interest ........................................... 788
c. Forfeiture by Wrongdoing ............................................. 790
D. The Residual Exception ............................................................. 791
E. Hearsay in Summary Judgment Analysis................................... 793
F. Testimonial Hearsay and the Confrontation Clause.................. 796
1. Forfeiture by Wrongdoing as a Hearsay Exception, and as
an Exception to the Confrontation Clause ........................ 798
a. People v. Burns ............................................................. 799
b. People v. Roscoe ........................................................... 802
IX. RULES 90103: AUTHENTICATION.................................................. 802
X. RULES 100108: THE BEST-EVIDENCE RULE, DUPLICATES, AND
SUMMARIES .................................................................................... 802
XI. RULES 110103: APPLICABILITY OF THE RULES OF EVIDENCE ...... 803
XII. REBUTTAL EVIDENCE .................................................................... 804
XIII. CONCLUSION ................................................................................ 805

I. A GENERAL INTRODUCTION AND RULES 10106: PRESERVATION OF

OBJECTIONS AND REVIEW OF EVIDENTIARY RULINGS
A. Introduction
This Article covers developments in evidentiary law in Michigan
state courts and within the federal Sixth Circuit (and a couple cases from
the U.S. Supreme Court) during the period of June 1, 2013 through May
31, 2014. As I have done in past articles, the organization of this Article
mirrors the structure of the rules of evidencefor example, just as Rules
801 through 807 cover the hearsay rule and its exceptions, part VIII of
this Article analyzes the cases interpreting those same rules. Each part
begins with a brief overview of the topic and then proceeds to discuss the
holdings and the facts of the cases interpreting the applicable rule or

690

WAYNE LAW REVIEW

[Vol. 60:687

rules. I only discuss published opinions of the courts, as only published

cases are precedentially binding.1
Whether you are a student, a practitioner, an academic, or a judge, I
hope you find this Article useful. I have tried (and probably failed) to
relegate my personal opinions to the footnotes so that the Article
primarily focuses on the holdings and the reasoning behind them. As
writing about each case is itself a learning experience, I hope that you do
not hesitate to write me with criticism if you conclude I have missed the
mark.2 Enjoy!
B. Appeals and Error3
1. Issue Preservation
Under Rule 103 of the Michigan and federal rules, a party generally
may not appeal a trial courts ruling admitting evidence unless the party
objected on the record while clearly specifying the grounds for its
objection or, if the trial court excluded that partys evidence, the party
made an offer of proof or through some other means made the trial court
aware of the nature of the evidence it was excluding.4 Specificity is
critical, as an objection on one ground is insufficient to preserve an
appellate argument based on a different ground.5 The rules require that
if the [trial] courts ruling is in any way qualified or conditional, the
burden is on counsel to [again] raise objection to preserve [the] error.6
(However, as the Michigan Court of Appeals recently emphasized,
litigants should avoid speaking objections in jury trials: Proceedings
shall be conducted, to the extent practicable, so as to prevent
1. In Michigan: MICH. CT. R. 7.215(C); People v. Metamora Water Servs., Inc., 276
Mich. App. 376, 382, 741 N.W.2d 61, 65 (2007) (citing People v. Hunt, 171 Mich. App.
174, 180, 429 N.W.2d 824, 826 (1988)). In the Sixth Circuit: Rutherford v. Columbia
Gas, 575 F.3d 616, 619 (6th Cir. 2009) (quoting Salmi v. Secy of Health & Human
Servs., 774 F.2d 685, 689 (6th Cir. 1985)).
2. My email address is meizlish@umich.edu.
3. The issue-preservation and standard-of-review sections are substantially similar to
the corresponding portions of last years article, as the case law has been mostly static.
See Louis F. Meizlish, Evidence, 59 WAYNE L. REV. 1033, 103740 (2014).
4. Id. at 1037; see MICH. R. EVID. 103(a); FED. R. EVID. 103(a); see also KBD &
Assocs., Inc. v. Great Lakes Foam Techs., Inc., 295 Mich. App. 666, 676, 816 N.W.2d
464, 470 (2012).
5. People v. Danto, 294 Mich. App. 596, 605, 822 N.W.2d 600, 605 (2011) (citation
omitted).
6. United States v. Nixon, 694 F.3d 623, 628 (6th Cir. 2012) (alteration in original)
(quoting United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999)) (internal quotation
marks omitted).

2015]

EVIDENCE

691

inadmissible evidence from being suggested to the jury by any means,

such as making statements or offers of proof or asking questions in the
hearing of the jury.7 Such objections risk prejudicing the jury.8)
The major exception to this default rule is the plain-error doctrine.9
If a party fails to preserve its claim of error in the trial court, it must
make three showings on appeal to avoid forfeiture of the issue: 1)
error . . . occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
plain error affected substantial rights.10 In the 1999 case of People v.
Carines,11 the Michigan Supreme Court followed the U.S. Supreme
Courts lead and extended the plain-error rule to claims of constitutional
error, as well as non-constitutional error.12
But the inquiry is not over. Once establishing a plain error, in order
to secure a reversal, an appellant must establish that the plain, forfeited
error resulted in the conviction of an actually innocent defendant or [that
the] error seriously affect[ed] the fairness, integrity or public reputation
of judicial proceedings independent of the defendants innocence.13
It is important to distinguish waiver from forfeiture. Whereas
forfeiture results from a sin of omission (failing to raise a timely
objection), waiver results from a sin of commission (the intentional
relinquishment or abandonment of a known right).14 One who waives
his rights . . . may not then seek appellate review of a claimed
deprivation of those rights, for his waiver has extinguished any error.15
(See part VI.A.1, where I discuss the fact that, in Michigan, a criminal
defendants failure to testify at a criminal trial waives, rather than
forfeits, his opportunity to appeal the trial courts decision to permit the
prosecution to impeach him with a prior conviction.)16
7. Zaremba Equip., Inc. v. Harco Natl Ins. Co., 302 Mich. App. 7, 22, 837 N.W.2d
686, 696 (2013) (quoting MICH. R. EVID. 103(c)).
8. Id.
9. MICH. R. EVID. 103(d); FED. R. EVID. 103(e).
10. People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130, 138 (1999) (citing
United States v. Olano, 507 U.S. 725, 73134 (1993)).
11. Id.
12. Id. at 76364, 597 N.W.2d at 138.
13. Id. (quoting Olano, 507 U.S. at 73637) (internal quotation marks omitted).
14. Id. at 762 n.7, 597 N.W.2d at 138 n.7 (quoting Olano, 507 U.S. at 733).
15. People v. Carter, 462 Mich. 206, 215, 612 N.W.2d 144, 149 (2000) (emphasis
added) (citations omitted) (quoting United States v. Griffin, 84 F.3d 912, 924 (7th Cir.
1996)). The only caveat to this otherwise hard-and-fast rule applies in criminal cases: a
court may review a decision in spite of defense trial counsels waiver if trial counsels
decision to waive any objection constituted ineffective assistance of counsel within the
meaning of the federal and state constitutions. People v. Marshall, 298 Mich. App. 607,
610, 616 n.2, 830 N.W.2d 414, 418, 421 n.2 (2012), vacated in part on other grounds,
493 Mich. 1020, 829 N.W.2d 876 (2013).
16. See generally People v. McDonald, 303 Mich. App. 424, 844 N.W.2d 168 (2013).

692

WAYNE LAW REVIEW

[Vol. 60:687

2. Standard of Review
Assuming a party has preserved the issue, the appellate tribunalin
Michigan state courts or the Sixth Circuitreviews the trial courts
evidentiary rulings for an abuse of discretion.17 In Michigan, an abuse of
discretion in admitting or excluding evidence occurs when a decision
falls outside the range of principled outcomes.18 The Sixth Circuit has
similarly held that an abuse of discretion occurs when the reviewing
tribunal is left with the definite and firm conviction that the district
court committed a clear error of judgment in the conclusion it reached
upon a weighing of the relevant factors.19 During this Survey period, the
Sixth Circuit had occasion to reaffirm its case law that, in examining a
district courts application of the balancing principles of Rule 403, the
district courts decision is afforded great deference.20 Before reviewing
the ultimate evidentiary ruling, however, the appellate tribunal must
determine if the trial courts evidentiary ruling involved a preliminary
ruling on an issue of law, such as an interpretation of the rules of
evidence, statutory law, or constitutional law, in which case the appellate
tribunal will subject the preliminary legal ruling to de novo review.21
On the other hand, appellate courts will accord great deference to
factual findings by applying the clear error standard and will uphold
those findings unless left with a definite and firm conviction that a
mistake was made.22 For a roadmap that illustrates the interaction of
objections, preservation of issues, and appellate review of evidentiary
rulings, see the 2012 Survey article on evidence.23

17. People v. Danto, 294 Mich. App. 596, 59899, 822 N.W.2d 600, 602 (2011);
United States v. Sims, 708 F.3d 832, 834 (6th Cir. 2013) (citing United States v. Stout,
509 F.3d 796, 799 (6th Cir. 2007)).
18. Danto, 294 Mich. App. at 599, 822 N.W.2d at 602 (citing People v. Blackston,
481 Mich. 451, 460, 751 N.W.2d 408, 412 (2008)); see People v. Babcock, 469 Mich.
247, 269, 666 N.W.2d 231, 243 (2003).
19. United States v. Qin, 688 F.3d 257, 261 (6th Cir. 2012) (quoting United States v.
Jenkins, 345 F.3d 928, 936 (6th Cir. 2003)). Be aware, however, of the Sixth Circuits
intra-circuit split as to the proper standard for reviewing determinations as to the
admissibility of other acts pursuant to Rule 404(b). See Louis F. Meizlish, Evidence, 58
WAYNE L. REV. 739, 745 n.17 (2013).
20. United States v. Stafford, 721 F.3d 380, 395 (6th Cir. 2013) (quoting United
States v. Bell, 516 F.3d 432, 445 (6th Cir. 2008)) (internal quotation marks omitted).
21. People v. Benton, 294 Mich. App. 191, 195, 817 N.W.2d 599, 603 (2011) (citing
People v. Dobek, 274 Mich. App. 58, 93, 732 N.W.2d 546, 570 (2007)).
22. People v. Brown, 279 Mich. App. 116, 127, 755 N.W.2d 664, 675 (2008) (citing
People v. Taylor, 253 Mich. App. 399, 403, 655 N.W.2d 291, 295 (2002)).
23. Louis F. Meizlish, Evidence, 58 WAYNE L. REV. 739, 74648 (2012).

2015]

EVIDENCE

693

II. RULES 20102: JUDICIAL NOTICE

There were no significant cases during the Survey period that
discussed judicial notice.
III. RULES 30102: PRESUMPTIONS
There were no significant cases during the Survey period that
discussed presumptions.
IV. RULES 40115: RELEVANCE, CHARACTER EVIDENCE, OTHER ACTS
OF CONDUCT, RULE 403 BALANCING, AND EVIDENCE OF COMPROMISE
OR SETTLEMENT
A. Relevance Generally
Only relevant evidence is admissible.24 In fact, all relevant evidence
is admissible unless (and this is perhaps the greatest caveat in the legal
profession) another rule or a statutory or constitutional provision renders
it inadmissible.25
The relevancy rule requires only a showing that the evidence has
any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it
would be without the evidence.26 This definition of relevancy has two
components: that the evidence is (a) probative of a fact, and (b) that fact
is one that is of consequencethat is material to the action.27
However, [a] material fact need not be an element of a crime or cause of
action or defense but it must, at least, be in issue in the sense that it is
within the range of litigated matters in controversy.28
Relevance is a low hurdle in both Michigan state courts and within
the Sixth Circuit. The threshold is minimal: any tendency is sufficient
probative force.29 In other words, in Michigan, evidence is relevant if it
24. FED. R. EVID. 402; MICH. R. EVID. 402. This introductory material to the rules
pertaining to relevance borrows heavily, if not entirely, from the previous years Survey
article on evidence. See Meizlish, supra note 3, at 105354.
25. FED. R. EVID. 402; MICH. R. EVID. 402.
26. MICH. R. EVID. 401 (emphasis added); see also FED. R. EVID. 401.
27. MICH. R. EVID. 401; FED. R. EVID. 401; see also People v. Crawford, 458 Mich.
376, 388, 582 N.W.2d 785, 792 (1998).
28. People v. Powell, 303 Mich. App. 271, 277, 842 N.W.2d 538, 543 (2013)
(quoting People v. Brooks, 453 Mich. 511, 518, 557 N.W.2d 106, 109 (1996)) (internal
quotation marks omitted).
29. Hardrick v. Auto Club Ins. Assn, 294 Mich. App. 651, 668, 819 N.W.2d 28
(2011) (quoting Crawford, 458 Mich. at 390, 582 N.W.2d at 792).

694

WAYNE LAW REVIEW

[Vol. 60:687

in some degree advances the inquiry.30 Similarly, the Sixth Circuit has
held that [t]he standard for relevancy is extremely liberal under the
Federal Rules of Evidence.31
In ruling on relevancy questions, both the state and the Sixth Circuit
have adopted a de facto totality-of-the-circumstances approach. In
Michigan, [t]he relationship of the elements of the charge, the theories
of admissibility, and the defenses asserted governs what is relevant and
material.32 Likewise, the Sixth Circuit held that [t]he purpose of an
item of evidence cannot be determined solely by reference to its content.
That is because [r]elevancy is not an inherent characteristic of any item
of evidence but exists only as a relation between an item of evidence and
a matter properly provable in the case.33
1. Relevance of a Defendants Concealed-Pistol License in FelonyFirearm Trials
A Wayne County jury found Willie D. Powell guilty of the crime of
possession of a firearm during the commission of a felony34 but acquitted
him of delivery/manufacture of marijuana and maintaining a drug
house.35 At trial, the defense had sought to introduce evidence that the
defendant had obtained a concealed pistol license (CPL), but the trial
court excluded the evidence.36 Following the conviction, the trial court
granted Powells motion for a new trial on the ground that it erred in
excluding the CPL evidence.37 The prosecution filed an application to the
Michigan Court of Appeals, which granted leave to appeal.38
Observing that [e]vidence is admissible if it is helpful in throwing
light on any material point, the appellate court agreed that the trial
court erred in excluding the CPL evidence and saw no error in its

30. Id. (quoting KENNETH BROUN ET AL., MCCORMICK ON EVIDENCE 185, at 736
(6th ed. 2007)).
31. Dortch v. Fowler, 588 F.3d 396, 400 (6th Cir. 2009) (quoting United States v.
Whittington, 455 F.3d 736, 738 (6th Cir. 2006)).
32. Powell, 303 Mich. App. at 277, 842 N.W.2d at 543 (citation omitted) (quoting
People v. VanderVliet, 444 Mich. 52, 75, 508 N.W.2d 114, 126 (1993)) (internal
quotation marks omitted).
33. United States v. Parkes, 668 F.3d 295, 304 (6th Cir. 2012) (quoting FED. R. EVID.
401 advisory committees note).
34. Powell, 303 Mich. App. at 27273, 842 N.W.2d at 541.
35. People v. Powell, Case No. 11-3453-FH, Wayne County Circuit Court, available
at https://cmspublic.3rdcc.org/CaseDetail.aspx?CaseID=1231073.
36. Powell, 303 Mich. App. at 276, 842 N.W.2d at 543.
37. Id. at 27273, 276, 842 N.W.2d at 541, 543.
38. Id. at 27273, 842 N.W.2d at 541.

2015]

EVIDENCE

695

decision to grant a new trial.39 The appellate panel barely touched on the
facts of the case, but explained its ruling as follows:
The CPL evidence was relevant and admissible. Defendants
argument was that he was innocently present in a flat where
someone else had marijuana. A relevant fact was whether
defendant was using a handgun in a legal manner. The
prosecution specifically argued that defendants possession of
the handgun was evidence that he was involved in selling the
marijuana. This argument implied that defendant was not using
the handgun in a legal manner. Defendant argued that he was
using the weapon in a legal manner. Defendants CPL evidence
lent credibility to his argument that he legally possessed the
handgun. Therefore, defendants testimony that he had a valid
CPL was within the range of litigated matters in controversy.40
The panelJudges David H. Sawyer, Peter D. OConnell, and
Kirsten Frank Kelly, in a per curiam opinion41also saw no error in the
trial courts determination that its earlier decision excluding the CPL
evidence denied the defendant his constitutional right to present a
defense.42 Because the trial court did not abuse its discretion in granting a
new trial, the appeals court affirmed its decision.43
2. Relevance of a Defendants Status as a Medical Marijuana Patient
in Criminal Drug-Delivery Cases
A medical-marijuana defense is irrelevant and inadmissible where,
prior to the trial, the court has already concluded that the defendants
conduct fell outside the protections of the Michigan Medical Marihuana
Act.44 Such was the holding of the Michigan Court of Appeals in People
v. Vansickle in September 2013.45

39. Id. at 278, 842 N.W.2d at 543 (quoting People v. Aldrich, 246 Mich. App. 101,
114, 631 N.W.2d 67, 75 (2001)).
40. Id. (quoting People v. Brooks, 453 Mich. 511, 518, 557 N.W.2d 106, 109 (1996)).
41. Id. at 271, 842 N.W.2d at 540.
42. Id. at 27879, 842 N.W.2d at 543 (citing People v. Anstey, 476 Mich. 436, 460,
719 N.W.2d 579 (2006)).
43. Id. at 280, 842 N.W.2d at 544.
44. People v. Vansickle, 303 Mich. App. 111, 11720, 842 N.W.2d 289, 29496
(2013).
45. Id.

696

WAYNE LAW REVIEW

[Vol. 60:687

Undercover Oakland County narcotics officers met with Jason L.

Vansickle at a marijuana dispensary.46 The defendant told the officers he
had a surplus of marijuana from the amount he harvested and offered to
sell them an ounce.47 They told him they had insufficient funds to
purchase an ounce, prompting Vansickle to offer to sell a smaller
amount.48 The officers and the defendant went outside and entered
Vansickles truck, where the defendant sold them some amount of
marijuana for $50.49 In the midst of the transaction, Vansickle handled a
digital scale and a glass jar of marijuana.50 Afterward, the officers and
the defendant discussed future transactions involving larger amounts of
marijuana.51
Prior to trial, the trial court granted the prosecutors motion in limine
to preclude any reference to defendants claim of immunity pursuant to
MMMA, along with any reference to Vansickles status as a medical
marijuana patient.52 The defendant then consented to a bench trial,
which resulted in his conviction; he then appealed.53
In considering whether the trial court properly ruled on the
evidentiary question, the Michigan Court of Appeals held that, as a
threshold matter, there is no provision in the MMMA that expressly
grants a qualifying patient the right to sell marijuana to another
allegedly qualifying patient.54 Accordingly, because the [d]efendant
did not have the right to sell marijuana under section 4 of the
MMMA[,] . . . defendants alleged status as a legitimate medical
marijuana patient was irrelevant, a unanimous panel held.55 The trial
court did not abuse its discretion in excluding evidence of Vansickles
status, the appellate court determined.56 Thus, for this and other reasons,
the panel of Judges Deborah A. Servitto, Mark J. Cavanagh, and Kurtis
T. Wilder, in a per curiam opinion,57 affirmed Vansickles conviction.58

46. Id. at 11314, 842 N.W.2d at 292.

47. Id.
48. Id.
49. Id. at 114, 842 N.W.2d at 292.
50. Id.
51. Id.
52. Id.
53. Id.
54. Id. at 120, 842 N.W.2d at 295 (citing State v. McQueen, 493 Mich. 135, 156, 828
N.W.2d 644 (2013); MICH. COMP. LAWS ANN. 333.26424 (West 2015)).
55. Id. at 120, 842 N.W.2d at 296.
56. Id.
57. Id. at 11213, 842 N.W.2d at 292.
58. Id. at 122, 842 N.W.2d at 296.

2015]

EVIDENCE

697

3. Relevance of Post-Petition Facts in Cases Involving Termination

of Parental Rights
Civil proceedings to terminate an individuals parental rights
commence with an individuals filing a petition in the probate or family
court.59 The petition apprises the parent of the charges levied against
him or her and affords a reasonable time to prepare a defense.60
A judge determines whether there is probable cause to support the
allegations and if she does so, then authorizes the petition, at which
juncture the family court takes temporary jurisdiction over the child.61
What follows the courts authorization of a petition in termination
proceedings is the jurisdictional, or adjudicative phase, where the rules
of evidence apply and the petitioner must establish, by a preponderance,
one or more of the statutory grounds for termination. 62
Among the questions before the Michigan Court of Appeals in In re
Dearmon was whether a petitioner seeking to terminate the respondents
parental rights could introduce evidence it uncovered after filing the
petition in the adjudicative/jurisdictional phase.63 As a matter of
constitutional due process, a unanimous panel concluded that where the
evidence of post-petition facts qualifies as relevant to an issue presented
in an adjudication trial and is otherwise admissible under the rules of
evidence, it may be admitted, 64 and that there is no due process
violation where the respondent had notice of the evidence.65 The
foregoing discusses why the Dearmon court concluded post-petition facts
were relevant.
In Dearmon, petitioner Michigan Department of Human Services,
through Childrens Protective Services (CPS) worker Courtni Adamec,
received a report of an incident of domestic violence between respondent
Erika Harverson and her boyfriend in the presence of the boyfriends
four-year-old daughter.66 During their second of two phone
conversations, the respondent, who had already lost her parental rights to

59. In re Dearmon, 303 Mich. App. 684, 693, 847 N.W.2d 514, 519 (2014); see also
MICH. COMP. LAWS ANN. 712A.2(b).
60. Dearmon, 303 Mich. App. at 694, 847 N.W.2d at 519.
61. MICH. CT. R. 3.965(B)(11); In re Hatcher, 443 Mich. 426, 43638, 505 N.W.2d
834, 83940 (1993).
62. MICH. COMP. LAWS ANN. 712A.2(b).
63. Dearmon, 303 Mich. App. at 68788, 847 N.W.2d at 516.
64. Id. at 696, 847 N.W.2d at 521 (emphasis added).
65. Id. at 698, 847 N.W.2d at 522 (citing MICH. CT. R. 3.922(A)(1)(a)).
66. Id. at 688, 847 N.W.2d at 516.

698

WAYNE LAW REVIEW

[Vol. 60:687

another child, told the worker that she would ship her children off if
CPS and the courts get involved.67
During her home visit, Adamec noticed the respondents two black
eyes and swollen face.68 Harverson initially refused to answer questions
but then said she would press charges for the assault and had already
obtained a personal-protection order (PPO) against her boyfriend,
Desmond Long.69
Adamec learned that police had recently arrested Long for assault on
Harverson and that a condition of his pretrial release in the criminal case
was that he have no contact with the respondent.70 The CPS worker was
unable to locate the PPO the respondent claimed to have obtained.71
Adamec conducted a forensic interview of Longs child, ML.72 ML
recounted that Long and respondent had fought in respondents
apartment and that both combatants had wielded knives. During the
altercation, ML and respondents children attempted to hide behind a
mattress. ML recalled that respondent had been bleeding.73 MLs
statements contradicted the respondents denial that her children had not
been present.74
After DHS filed its petition to terminate her rights to ML, Harverson
exercised her right to a trial, whereby a jury would determine whether
there were statutory grounds for the family court to assume jurisdiction
over ML.75 At trial, the petitioners theory of the case was that the
respondents conduct exposed her children to domestic violence, which
places [the children] at a substantial risk of harm in her care and makes
their home environment unfit.76 Harversons attorney argued that the
respondent was a victim of domestic violence, that she wanted to
prosecute her abuser, and that she was doing everything pro-actively to
prevent this from happening again.77
A panel of the Michigan Court of Appeals summarized the
petitioners evidence at trial:

67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.

Id. at 688, 847 N.W.2d at 517.

Id.
Id.
Id. at 689, 847 N.W.2d at 517.
Id.
Id.
Id.
Id. at 688, 847 N.W.2d at 517.
Id. at 690, 847 N.W.2d at 51718.
Id. at 690, 847 N.W.2d at 518 (internal quotation marks omitted).
Id. (internal quotation marks omitted).

2015]

EVIDENCE

699

Adamec described her investigation to the jury and explained her

decision to file a petition seeking jurisdiction. The testimony of
several other witnesses supported that ML and respondents
children had been present during the July 15 assault. Law
enforcement personnel testified about two other episodes of
domestic violence between respondent and Long predating the
July 15 fight. A sheriffs deputy opined that respondent had
initiated the first assault by striking the first blow. The second
assault led to Longs prosecution for domestic violence despite
respondents refusal to cooperate. By brawling with respondent
on July 15, Long violated a bond condition imposed when he
was charged with the second of the three assaults.78
The prosecution then introduced recordings of telephone
conversations between the respondent and her boyfriend when the latter
was in jailconversations which occurred after DHS filed its petition.79
There was no transcript of the conversations, but the appellate panel
inferred from the trial transcript that the calls reflected respondents
desire to maintain a close relationship with Long.80 In overruling
Harversons objection and admitting the recordings, the trial court
concluded that the respondent had opened the door to the introduction
of the tapes by asserting . . . that respondent had separated from Long
and had no voluntary contact with him after the first of the three assaults
in the summer of 2012.81
The jury concluded there was a statutory basis for the court to
assume jurisdiction over ML.82 The respondent appealed this
adjudication to the Michigan Court of Appeals.83 (After further
proceedings, the family court terminated Harversons rights, a decision
which Harverson also appealed.84)
In a per curiam opinion, Judges William C. Whitbeck, Joel P.
Hoekstra, and Elizabeth L. Gleicher85 observed that there was no
statutory or court rule of evidence that mandates that the family court
exclude evidence of post-petition events in termination proceedings.86

78.
79.
80.
81.
82.
83.
84.
85.
86.

Id. at 69091, 847 N.W.2d at 518.

Id. at 691, 847 N.W.2d at 518.
Id.
Id.
Id. at 69192, 847 N.W.2d at 518.
Id.
Id. at 692, 847 N.W.2d at 519.
Id. at 700, 847 N.W.2d at 523.
Id. at 696, 847 N.W.2d at 520.

700

WAYNE LAW REVIEW

[Vol. 60:687

The court concluded that the evidence was relevant to contradict the
respondents defense:
Petitioner structured its jurisdictional claim on the argument that
respondent was unable to extricate herself from her relationship
with Long and that their inherently violent, abusive relationship
endangered respondents children. Respondent countered that
Long had entered her home without permission on July 15,
denied that her children had witnessed this altercation, and
insisted that she had done everything in her power to distance
herself from Long. Obviously, respondents credibility was at
issue given petitioners contrary evidence. The jailhouse tapes
bore directly on respondents credibility. They tended to
discredit her disavowal of voluntary contact with Long after the
first assault.87
The panel further observed that the court had instructed the jury that,
when listening to the recordings, it should not consider the statements of
the prisoner (presumably Long), as they were hearsay.88 The
respondents statements, however, bore directly on her credibility, [and]
were relevant regardless of the date she uttered them.89 Accordingly, the
panel affirmed the adjudication (and subsequent termination) for this and
other reasons.90
B. Other Acts of Conduct
The general prohibition on propensity evidence, Rule 404(b), forbids
[e]vidence of other crimes, wrongs, or acts . . . to prove the character of
a person in order to show action in conformity therewith.91 However,
the rules do not bar such evidence for a non-propensity, or non-character,
purpose, such as proof of motive, opportunity, intent, preparation,
scheme, plan, or system in doing an act, knowledge, identity, or absence
of mistake or accident when the same is material.92 (Also, various
statutory and court rules of evidence permit propensity evidence in

87. Id. at 69798, 847 N.W.2d at 521.

88. Id. at 699, 847 N.W.2d at 522.
89. Id.
90. Id. at 700, 847 N.W.2d at 523.
91. MICH. R. EVID. 404(b)(1); see also FED. R. EVID. 404(b)(1). This introductory
material to Rule 404 borrows heavily, if not entirely, from the previous years Survey
article on evidence. See Meizlish, supra note 3, at 107072.
92. MICH. R. EVID. 404(b)(1); see also FED. R. EVID. 404(b)(2).

2015]

EVIDENCE

701

very specific situations.93) While many often refer to such evidence as

prior bad acts,94 the Michigan rules specifically provide that such acts
need be neither prior nor bad to trigger Rule 404(b)s application,
and the federal rules wording leads directly to the same conclusion.95
Accordingly, I refer to such evidence merely as other acts.
In Michigan, to admit such evidence, its proponent must establish to
the court that: (1) the evidence [is] offered for a proper purpose; (2) the
evidence [is] relevant; and (3) the probative value of the evidence [is] not
substantially outweighed by unfair prejudice.96 The Sixth Circuits
approach differs slightly. There, the applicable test requires the district
court to: (1) make a preliminary determination as to whether sufficient
evidence exists that the prior act occurred, (2) make a determination as to
whether the other act is admissible for a proper purpose under Rule
404(b), and (3) determine whether the other acts evidence is more
prejudicial than probative under Rule 403.97
As to the first prong, the Sixth Circuit has explained that sufficient
evidence does not require a preponderance of the evidence that the act
occurred, but [a party] may not present similar acts connected to the
defendant only by unsubstantiated innuendo.98 Subject to Rule 403,
Michigan courts take an inclusionary approach to other-acts evidence:
Evidence relevant to a noncharacter purpose is admissible under
MRE 404(b) even if it also reflects on a defendants character.
Evidence is inadmissible under this rule only if it is relevant
solely to the defendants character or criminal propensity. Stated
another way, the rule is not exclusionary, but is inclusionary,
because it provides a nonexhaustive list of reasons to properly
admit evidence that may nonetheless also give rise to an
93. See Meizlish, supra note 3, at 1096101.
94. People v. VanderVliet, 444 Mich. 52, 84 n.43, 508 N.W.2d 114, 130 n.43 (1993)
(Rule 404(b) permits the government to prove intent by evidence of prior bad acts . . .
.).
95. See FED. R. EVID. 404(b)(1) (Evidence of a crime, wrong, or other act is not
admissible to prove a persons character in order to show that on a particular occasion the
person acted in accordance with the character. (emphasis added)); MICH. R. EVID.
404(b)(1) (providing that the rule applies whether such other crimes, wrongs, or acts are
contemporaneous with, or prior or subsequent to the conduct at issue in the case
(emphasis added)).
96. People v. Kahley, 277 Mich. App. 182, 18485, 744 N.W.2d 194, 19697 (2007)
(citing People v. Knox, 469 Mich. 502, 509, 674 N.W.2d 366, 369 (2004)).
97. United States v. Poulsen, 655 F.3d 492, 508 (2011) (quoting United States v.
Mack, 258 F.3d 548, 55253 (6th Cir. 2001)) (internal quotation marks omitted).
98. United States v. Mack, 729 F.3d 594, 60102 (6th Cir. 2013) (quoting Huddleston
v. United States, 485 U.S. 681, 689 (1988)).

702

WAYNE LAW REVIEW

[Vol. 60:687

inference about the defendants character. Any undue prejudice

that arises because the evidence also unavoidably reflects the
defendants character is then considered under the MRE 403
balancing test, which permits the court to exclude relevant
evidence if its probative value is substantially outweighed by
the danger of unfair prejudice . . . .99
1. Other Burglaries
People v. Roscoe involved a murder at an Ann Arbor car
dealership.100 Shane Noel Roscoe and his co-defendant, a cousin, broke
into the dealership at nighttime to steal paint and chemical hardeners.101
When one of the dealership employees discovered them, the defendant
and his cousin struck the man in the head twice and then ran him over
with a vehicle, causing his death some days later.102 A Washtenaw
County jury found Roscoe guilty of first-degree felony murder, safe
breaking, breaking and entering a building with intent to commit larceny,
and resisting or obstructing a police officer.103
The trial court admitted evidence of the defendants prior burglaries
in 1991, 2000 and 2008, pursuant to Rule 404(b), a decision that Roscoe
argued on appeal was error.104 The defendant, however, failed to
persuade the panel of Judges Donald S. Owens, Stephen L. Borrello, and
Elizabeth L. Gleicher.105 The evidence was probative, the panel
concluded, of the defendants common scheme or plan in burglarizing
buildings:
The evidence shows a common scheme or plan by defendant of
targeting car dealerships. The evidence also shows that
defendant has a tendency to steal items that may not be of much
value to the average person, but actually have a high resale value
when sold together, such as the granite and setting materials. The
similarity between the other incidents and this case make the
evidence highly probative of a common scheme or plan,
particularly because in this case defendant targeted a car
dealership and the items missing were paint and hardening
99. People v. Danto, 294 Mich. App. 596, 599600, 822 N.W.2d 600, 603 (citations
omitted) (quoting People v. Mardlin, 487 Mich. 609, 61516, 790 N.W.2d 607 (2010)).
100. People v. Roscoe, 303 Mich. App. 633, 63839, 846 N.W.2d 402, 406 (2014).
101. Id. at 639, 846 N.W.2d at 406.
102. Id.
103. Id. at 638, 846 N.W.2d at 406.
104. Id. at 645, 846 N.W.2d at 410.
105. Id. at 650, 846 N.W.2d at 412.

2015]

EVIDENCE

703

chemicals, which to the average person have little value, but

defendant had knowledge of their high resale value.106
The evidences prejudicial effect did not trigger Rule 403, as the
prejudice did not outweigh its probative value, and the trial court
properly instructed the jury to only consider the evidence for its proper
purpose.107 Accordingly, the panel affirmed Roscoes conviction for this
and other reasons.108
2. Other Armed Robberies
A federal grand jury in the Eastern District of Tennessee indicted
Rodney B. Mack, Jr. on three counts of aiding and abetting carjacking,
three counts of aiding and abetting robbery in interstate commerce, and
three counts of aiding or abetting the carrying of a firearm in a crime of
violence.109 The charges pertained to three incidents in the Knoxville
area in late July 2009.110 As the Sixth Circuit summarized the three
incidents:
On each occasion, one of the men called in a food order to a
pizza restaurant and requested delivery to a vacant house where
the two men waited. When the delivery driver arrived, the men
robbed the driver at gunpoint, taking the car, money, cell phone,
food, and other property.111
During their investigation of the first of the three incidents, police
found the delivery drivers car in the parking lot of the defendants
apartment complex.112 While executing a search warrant at Macks
apartment, police found shoes and shorts similar to the clothing one of
the robbers wore during the robbery, as well as a small cellular telephone
that the victim identified as her phone at trial.113 The driver positively
identified the defendant in court as the robber, after earlier identifying
him in the polices photographic lineup.114 The driver testified during the

106.
107.
108.
109.
110.
111.
112.
113.
114.

Id. at 646, 846 N.W.2d at 41011.

Id. at 646, 846 N.W.2d at 411.
Id. at 64950, 846 N.W.2d at 412.
United States v. Mack, 729 F.3d 594, 598 (6th Cir. 2013).
Id.
Id.
Id. at 599.
Id.
Id.

704

WAYNE LAW REVIEW

[Vol. 60:687

trial that when the defendant pointed the gun at her, she heard it make a
click-click noise.115
Similarly, during the third of the three incidents, the defendant
pulled out a heavy, black, metal pistol, and pointed it at [delivery driver
Ryan] Johnsons face. Johnson heard the man rack the slide on the
firearm, placing a bullet into the chamber.116 Johnson positively
identified Mack as the gun-carrying robber.117
At trial, the district court permitted the government to introduce a
transcript of the defendants guilty plea to a similarly charged offense in
Georgia state court about 17 months before the Tennessee carjackings.118
Although the defendant in that case, Rodney Bernard Mack, Jr.,
was initially charged with a serious robbery offense, he entered a
guilty plea to a reduced misdemeanor charge of disorderly
conduct. According to the state prosecutors factual basis
statement presented to support the guilty plea, the robbery victim
was approached by the defendant and his accomplice on a public
sidewalk. The victim took special note of the shorter of the two
men because he had short twists in his hair and he was dressed in
blue jean shorts and a white tank top. The taller man, who wore a
black jacket, told the victim he had a Glock in his pocket and
demanded the victims property. The victim immediately turned
over his food and his cell phone.119
The government contended that its purpose in offering the other-acts
evidence was to establish the defendants identity as one of the culprits in
the three Tennessee robbery/carjackings.120 On appeal, Mack argued the
district court erred in admitting evidence of the Georgia robbery because
the evidence was unfairly prejudicial to him.121
The appellate panel began by considering the first prong of a Rule
404(b) analysis in the Sixth Circuitwhether there was sufficient
evidence that Mack had committed the Georgia robbery.122 Here, the
Sixth Circuit concluded that the district court plainly erred because the
government had not confirmed on the record that the Rodney Bernard
Mack, Jr. who pled guilty in Georgia state court was the same Rodney B.
115.
116.
117.
118.
119.
120.
121.
122.

Id.
Id. at 600.
Id.
Id. at 601.
Id. at 60102.
Id. at 602.
Id.
Id. at 601.

2015]

EVIDENCE

705

Mack, Jr., who was then on trial.123 Second, the panel held, the Georgia
robbery did not constitute proper identity evidence because the
Georgia incident was not sufficiently similar to the charged crimes to
establish the defendants pattern, modus operandi, or signature.124 A
unanimous panel of Judge Jane Branstetter Stranch, writing for herself
and Judges Raymond M. Kethledge and Karen Nelson Moore,125
differentiated the incidents:
The three Tennessee robberies were committed in a similar
pattern or by use of a similar modus operandi. But the Georgia
charge arose from a typical street robbery in which the victim
fortuitously turned over a cell phone and food to the robbers. The
Georgia crime did not involve calling in food orders, luring
delivery drivers to vacant houses, stealing cell phones that were
later used to set up future robberies, or carjacking. Because the
Georgia robbery lacked the pattern or modus operandi of the
Tennessee robberies, the jury essentially heard forbidden
propensity evidence because the jurors were required to pile
inference upon inference to draw the conclusion that the
defendant was involved in all of the incidents.126
Accordingly, the panel concluded, the Georgia evidence failed all
three prongs of the Rule 404(b) analysis1) insufficient evidence, 2)
insufficient probative value as to a non-character purpose, and 3)
prejudicial effect outbalancing the probative value.127 The panel held that
the district court abused its discretion in admitting evidence of the
Georgia robbery.128 Nevertheless, the court affirmed the conviction on
harmless-error grounds in light of the overwhelming evidence of Macks
guilt (namely, two of the three victims positive identification of him as
the culprit, his possession of the first and third Tennessee victims cell
phones, and the clothes police found in his apartment that were similar to
the clothes one of the robbers was wearing during the incidents).129

123. Id. at 602. The Sixth Circuits opinion is silent as to whether Mack raised this
issue in the district court. It is possible that his counsel knew the government had the
evidence that the two Rodney B. Macks were the same individuals, and elected not to
dispute identity so as to further draw the jurys attention to the defendants prior act.
124. Id. (citing United States v. Clay, 667 F.3d 689, 693 (6th Cir. 2012)).
125. Id. at 598.
126. Id. at 60203 (emphasis added) (citing Clay, 667 F.3d at 699).
127. Id. at 603.
128. Id.
129. Id.

706

WAYNE LAW REVIEW

[Vol. 60:687

3. Other Acts of Pimping

In United States v. Willoughby, a 16-year old girl (SW) ran away
from her Toledo, Ohio-area foster home and linked herself with the
thirty-four-year old defendant, Anthony C. Willoughby.130 Willoughby
allowed SW to live at his house and allowed SW to become totally
dependent on him for the basic necessities of life.131 SW later reported
that the defendant would have sex with her every day and that he would
force her to have anal sex, including the use of anal beads.132 The
intercourse would often occur on a tan pillow in Willoughbys living
room.133
Willoughby forced SW to become a prostitute and kept records of
customers and potential customers in a notebook whose cover bore
Barbie stickers.134 The defendant would have SW cold call the names
in the book and record whether the person was interested in sex with
her.135 These calls resulted in at least two meetings for sex at customers
homes.136
The defendant provided a fee structure: $50 for oral sex, $75 for
intercourse, and $100 for both oral sex and intercourse.137 He provided
SW with undergarments and condoms, and he drove her to potential
meet-ups, including one trip to a red-light district and another to a
swingers convention.138 The defendant became upset when these trips
did not produce the business he wanted.139
Two months into the relationship, Willoughby began beating SW,
usually for failing to comply with his rules.140 SW bit her lip and induced
vomiting in a successful effort to convince the defendant she was sick
and vomiting blood.141 Willoughby drove SW to her foster home and
threatened her and her family if she disclosed what had occurred.142 SW,
nevertheless, disclosed what happened and the family contacted police.143

130.
131.
132.
133.
134.
135.
136.
137.
138.
139.
140.
141.
142.
143.

United States v. Willoughby, 742 F.3d 229, 232 (6th Cir. 2014).
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id. at 23233.
Id. at 233.
Id.
Id.
Id.
Id.

2015]

EVIDENCE

707

When executing a search warrant at the defendants home, officers

located:
the undergarments that Willoughby had bought for SW, a list of
truck stops in nearby states, the notebook with Barbie stickers,
another notebook in which Willoughby wrote rap lyrics about
pimping, a camera with photos of SW, handwritten notes with
phone numbers (including numbers for Miles and Tusin), a
makeup bag with a condom in it, anal beads, and the tan pillow,
among other things.144
A federal jury in the Northern District of Ohio convicted Willougby
of sex trafficking a minor through force, fraud or coercion, and the
district court imposed a sentence of 30 years in prison.145
On appeal, Willoughby argued that the trial court erred in admitting
the testimony of two womenone of whom, Amber Higginbotham,
testified that the defendant was her pimp and another, Renee Todd, who
said the defendant repeatedly asked her to work for him as a prostitute.146
The defense did not contest the evidence outright on Rule 404(b)
grounds; rather, Willoughby argued that Todds testimonythat the
defendant offered her drugs for sexwould poison the jury into
concluding he was a drug dealer deserving of punishment.147
The Sixth Circuit first turned to the question of whether the
government had a legitimate non-character purpose, within Rule 404(b)s
meaning, in offering the evidence.148 The government argued that the two
womens testimony was probative of Willoughbys knowledge, as [t]o
convict Willoughby, the government was required to prove that he
recruited, enticed, harbored, or transported her knowing that she would
be caused to engage in a commercial sex act.149 At trial, SW testified
that the defendant would drive her to Lagrange Street, a notorious
location for prostitution in Toledo.150 Higginbotham testified that she
solicited customers on Lagrange while in Willoughbys employ, and
Todd testified that the defendant asked her to solicit customers on the
same street.151 Higginbotham and Todds testimony, the appellate panel

144.
145.
146.
147.
148.
149.
150.
151.

Id.
Id. at 231, 233.
Id. at 236.
Id.
Id. at 237.
Id. (emphasis added) (citing 18 U.S.C.A. 1591(a) (West 2014)).
Id.
Id.

708

WAYNE LAW REVIEW

[Vol. 60:687

observed, helped establish that Willoughby knew Lagrangethe

trackwas an area of prostitution.152
The Sixth Circuit rejected the defendants argument that establishing
his knowledge was not a proper purpose (he emphasized that he had not
put his mental state at issue).153 The panel observed that knowledge was
an element of the charged crime, not an affirmative defense; and that
means the government was required to prove his knowledgebeyond a
reasonable doubt, no lessregardless of whether Willoughby himself
put it in issue.154
Finally, the appellate panel had to consider whether the evidences
prejudicial effect (establishing defendants character as a pimp)
substantially outweighed the probative value (establishing his knowledge
of Lagrange) within the meaning of Rule 403.155 The risk of unfair
prejudice, the judges observed, is a danger always to be taken seriously
in cases where the prior crime and the charged crime are the same.156
That danger was present in Willoughby, the judges observed, noting that
[w]hen jurors hear that a defendant has on earlier occasions committed
essentially the same crime as that for which he is on trial, the information
unquestionably has a powerful and prejudicial impact.157
The fact that Lagrange was a trackan area known for high levels
of prostitutionwas common knowledge; thus the evidence of the
defendants pimping merely showed that Willoughby knew what
everyone else knew,158 the panel opined, noting that one factor in
balancing unfair prejudice against probative value under Rule 403 is the
availability of other means of proof.159 Here, the government already
had overwhelming proof that, when Willoughby drove SW to the
residences of two johns, he knew full well that she would be caused to
engage in a commercial sex act there.160 Accordingly, the panel
observed, the evidences prejudicial effect substantially outweighed its
probative value.161

152. Id.
153. Id.
154. Id. (citing United States v. Merriweather, 78 F.3d 1070, 107678 (6th Cir. 1996)).
155. Id. at 23738.
156. Id.
157. Id. at 238 (quoting United States v. Johnson, 27 F.3d 1186, 1193 (6th Cir. 1994))
(internal quotation marks omitted).
158. Id.
159. Id. (quoting United States v. Jenkins, 593 F.3d 480, 48586 (6th Cir. 2010))
(internal quotation marks omitted).
160. Id.
161. Id.

2015]

EVIDENCE

709

The panel noted, however, that its standard of review was

deferential, that it could not conclude that the district court abused its
discretion in admitting the evidence, as the testimony had a proper
purpose, and that on this record the government bore a significant burden
in seeking to prove Willoughbys knowledge at trial.162 Furthermore,
given that the defense did not preserve the issue at trial, the panel also
could not find plain error.163 Finally, even if Willoughby had properly
preserved the issue, the panel noted that the evidence was overwhelming
and thus the error was harmless beyond a reasonable doubt.164 It
explained:
[The evidence] was overwhelming specifically because it
corroborated SWs testimony in so many ways. SW testified that
Willoughby had intercourse with her daily, often on a tan pillow,
and that on at least one occasion he forced her to use anal beads;
the jury heard unrebutted expert testimony that DNA from
Willoughby and SW was on both the pillow and the beads. SW
testified that Willoughby directed her to cold-call potential
johns, and that he gave her scripts of what to say; the jury saw
the handwritten call logs and scripts as exhibits at trial. SW
testified that she engaged in sex with Chip and Ed for
money (which she then handed over to Willoughby); the jury
heard each man say the same thing. SW testified that
Willoughby drove her to Lagrange Street to look for johns; the
jury heard another prostitute, Amber Higginbotham, testify that
she saw Willoughby drop SW off there. SW testified that she
called Willoughby for a ride home from a party store on
Lagrange; the jury saw the stores phone records, which indeed
showed a call to Willoughbys number during the time frame
when SW said she was there. SW testified that Willoughby took
her to a hotel during a swingers convention to look for johns;
the jury saw hotel receipts that showed Willoughby was at the
hotel during the convention. And SW testified that Willoughby
provided her with an array of paraphernaliaundergarments
with specific patterns and colors, a notebook with Barbie stickers
and johns phone numbers inside, and a makeup bag containing

162. Id.
163. Id.
164. Id. (citing United States v. Mack, 729 F.3d 594, 603 (6th Cir. 2013)).

710

WAYNE LAW REVIEW

[Vol. 60:687

baby oil, a condom, and wipesall of which, the jury was later
told, were seized during a search of Willoughbys home.165
Accordingly, the unanimous panel, in an opinion by Judge Raymond
M. Kethledge for himself and Judge Jeffrey S. Sutton and U.S. District
Judge Robert M. Dow,166 affirmed the defendants conviction and
sentence, for this and other reasons.167
C. Rule 403 Balancing168
Rule 403 provides that [a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.169 In interpreting this rule, the Michigan Supreme
Court has explained that [a]ll evidence offered by the parties is
prejudicial to some extent, but the fear of prejudice does not generally
render the evidence inadmissible. It is only when the probative value is
substantially outweighed by the danger of unfair prejudice that evidence
is excluded.170 The rule serves to prevent a courts admission of
evidence with little probative value [that] will be given too much weight
by the jury.171 This unfair prejudice refers to the tendency of the
proposed evidence to adversely affect the objecting partys position by
injecting considerations extraneous to the merits of the lawsuit, e.g., the
jurys bias, sympathy, anger, or shock.172
Because Rule 403 balancing in most cases ties particularly closely to
a courts application of other rules (such as the provision of Rule
404(b)173 allowing evidence of other acts of conduct) and is very specific
to the facts, it is difficult to devote a lengthy section solely to this rule.
Below I list the Survey period cases in this Article that involved a more165. Id. at 235.
166. Judge Dow, of the Northern District of Illinois, sat by designation on the Sixth
Circuit panel. Id. at 231.
167. Id. at 243.
168. This portion of the Articlean introductory explanation about Rule 403
balancingborrows heavily, if not entirely, from last years Survey article on evidence.
See Meizlish, supra note 3, at 1106.
169. MICH. R. EVID. 403; see also FED. R. EVID. 403.
170. People v. Mills, 450 Mich. 61, 75, 537 N.W.2d 909, 917 (1995).
171. People v. McGhee, 268 Mich. App. 600, 614, 709 N.W.2d 595, 607 (2005) (citing
Mills, 450 Mich. at 75, 537 N.W.2d at 917).
172. People v. Fisher, 449 Mich. 441, 452, 537 N.W.2d 577, 582 (1995) (quoting
People v. Goree, 132 Mich. App. 693, 70203, 349 N.W.2d 220, 225 (1984)).
173. MICH. R. EVID. 404(b).

2015]

EVIDENCE

711

than-de-minimis amount of Rule 403 balancing, with cross-references to

the sections of this Article in which I discuss the cases and their
importance for Rule 403 jurisprudence.
Case

Related issues

Cross-reference

Brumley v. Albert E.
Brumley & Sons, Inc.
United States v.
Stafford
People v. Roscoe

Hearsay exception:
ancient documents
Expert opinion: gunshot
residue
Other acts of conduct:
burglaries
Other acts of conduct:
pimping

VII.C.1.c

United States
Willoughby

v.

Part VII.C
Part IV.B.1
Part IV.B.3

D. Rape-Shield Provisions
The Michigan rape-shield statute, section 520j of the penal code,
provides that evidence of specific instances of a rape victims past sexual
conduct, along with reputation and opinion evidence of his or her past
conduct, is inadmissible in criminal sexual conduct cases.174 Section
520j, the Michigan Court of Appeals explained in a 1978 case,
represents an explicit legislative decision to eliminate trial
practices under former law which had effectually frustrated
societys vital interests in the prosecution of sexual crimes. In
the past, countless victims, already scarred by the emotional (and
often physical) trauma of rape, refused to report the crime or
testify for fear that the trial proceedings would veer from an
impartial examination of the accuseds conduct on the date in
question and instead take on aspects of an inquisition in which
complainant would be required to acknowledge and justify her
sexual past.175

174. MICH. COMP. LAWS ANN. 750.520j(1) (West 2015). The federal courts have
promulgated a similar, but non-statutory, rape-shield provision. See FED. R. EVID. 412.
This introduction to the rape-shield rule borrows heavily, if not entirely, from the
previous years Survey article on evidence. See Meizlish, supra note 3, at 1102.
175. People v. Khan, 80 Mich. App. 605, 613, 264 N.W.2d 360, 364 (1978).

712

WAYNE LAW REVIEW

[Vol. 60:687

Similarly, the Sixth Circuit has explained that the purpose of Rule
412 is to encourage[] victims of sexual abuse to report their abusers by
protecting the victims privacy.176
The Michigan statute, however, permits the following evidence as
exceptions to the rape shield: (a) Evidence of the victims past sexual
conduct with the actor [and] (b) Evidence of specific instances of sexual
activity showing the source or origin of semen, pregnancy, or disease.177
To admit such evidence under either of these exceptions in the rapeshield statute, the court must find that the following proposed evidence
is material to a fact at issue in the case and that its inflammatory or
prejudicial nature does not outweigh its probative value.178
The corresponding provision in the Federal Rules of Evidence, Rule
412, is similar but differs in some respects.179 Both the Michigan statute
and the federal rule contain an exception for evidence showing the
source or origin of semen, pregnancy, or disease.180 On the other hand,
while the Michigan statute has an exception for [e]vidence of the
victims past sexual conduct with the actor,181 the narrower exception in
the federal rule permits evidence of specific instances of a victims
sexual behavior with respect to the person accused of the sexual
misconduct, if offered by the defendant to prove consent or if offered by
the prosecutor.182 Second, unlike the Michigan statute, the federal rule
does not require the trial judge to subject evidence falling within one of
the two exceptions to a probative-versus-inflammatory-effect balancing
before admitting such evidence.183 Third, in civil cases only, the federal
rule, unlike the Michigan statute, permits evidence of a victims sexual
behavior or disposition if its probative value substantially outweighs the
danger of harm to any victim and of unfair prejudice to any party. The
court may admit evidence of a victims reputation only if the victim has
placed it in controversy.184 Finally, the procedural time limits and
mechanisms differ slightly between the federal and state provisions.185
In United States v. Willoughby, a case I previously referenced in Part
IV.B.3 of this Article, the Sixth Circuit held that Rule 412 does not
operate to preclude cross-examination of a rape victim concerning her
176.
177.
178.
179.
180.
181.
182.
183.
184.
185.

United States v. Ogden, 685 F.3d 600, 606 (6th Cir. 2012).
MICH. COMP. LAWS ANN. 750.520j(1).
Id.
FED. R. EVID. 412.
MICH. COMP. LAWS ANN. 750.520j(1)(b); see also FED. R. EVID. 412(b)(1)(A).
MICH. COMP. LAWS ANN. 750.520j(1)(a).
FED. R. EVID. 412(b)(1)(B) (emphasis added).
See MICH. COMP. LAWS ANN. 750.520j(1); FED. R. EVID. 412(b)(1).
FED. R. EVID. 412(b)(2).
Compare MICH. COMP. LAWS ANN. 750.520j(2), with FED. R. EVID. 412(c).

2015]

EVIDENCE

713

prior false allegations of sexual abuse.186 One of the errors the defendant
alleged on appeal was the trial courts decision to preclude the defense
from cross-examining SW about a previous allegation of sexual abuse
she made and later recanted against a counselor at a foster home at which
she had lived.187 The defense argued that the recantation was probative of
SWs credibility and not within the purview of the rape-shield provision
in Rule 412.188
A unanimous panel of the Sixth Circuit, in an opinion by Judge
Raymond M. Kethledge for himself and Judge Jeffrey S. Sutton and U.S.
District Judge Robert M. Dow,189 concluded that the district court erred
in excluding the evidence of SWs recantation.190 The recantation, the
panel explained, was not offered to prove that [SW] engaged in other
sexual behaviorbecause the testimonys whole predicate was that
there was no other sexual behavior to begin with. For the same reason,
the testimony was not offered to prove [SW]s sexual
predisposition.191 The panel further rejected the governments
contention that exploring the recantation would have provoked a minitrial as to the truth of the prior recantation.192 Rather, the appellate judges
observed that Rule 608(b) precludes extrinsic evidence of prior acts of
dishonestyin other words, the defense would have been unable to
introduce testimony or evidence of the false recantation if SW denied
lying about the former incident.193 (See the discussion on Rule 608(b) in
part VI.A.2 of this Article.) Nevertheless, the panel affirmed the
defendants conviction, on harmless-error grounds.194
E. Evidence of Compromise or Settlement
In Rule 408, the federal and state rules both disallow a partys use of
an adverse partys offer of settlement, or statements the adverse party
made during settlement negotiations, to prove the validity or invalidity of
a claim or to prove the amount for which the offeror is liable.195 In plain
186. United States v. Willoughby, 742 F.3d 229, 23435 (6th Cir. 2014).
187. Id. at 234.
188. Id.
189. Id. at 231.
190. Id. at 234.
191. Id. (quoting FED. R. EVID. 412(a)).
192. Id. at 235.
193. Id. (citing FED. R. EVID. 608(b)).
194. Id. at 243.
195. FED. R. EVID. 408(a); MICH. R. EVID. 408. The federal and state rules diverge
slightly in that the federal rules add that such evidence of compromise or statements in
settlement negotiations is also inadmissible to impeach by a prior inconsistent statement
or a contradiction. FED. R. EVID. 408(a). Note that this introductory material to Rule 408

714

WAYNE LAW REVIEW

[Vol. 60:687

English, this means party P cannot show that party D is liable for X
amount because D offered to settle the case, nor may it use statements D
made during settlement talks to show that the amount of the damage is X.
Similarly, a party may not introduce evidence that the opposing party
settled with a non-party.196 For a discussion of the policy underlining the
rule, see the 2012 Survey article on evidence.197
Frank Cona, the petitioner in Cona v. Avondale School District,
began working as a teacher at the Avondale School District in Oakland
County in 1997, obtaining tenure during the 200102 academic year.198
In early 2010, as part of a plea bargain, Cona pled guilty to a criminal
charge of impaired driving and received a sentence of twelve months of
probation.199 The petitioner failed to comply with probation by testing for
alcohol and marijuana, which led to two successive probation
violations.200 The second violation hearing occurred on a school day, and
Cona told the school district
that his absence from work was due to illness. Petitioner was
offered a choice between jail time and an additional year of
probation. Petitioner chose jail because he believed that his
probation officer would recommend a 15-day sentence and that
he would be permitted to serve the sentence on weekends,
thereby allowing him to continue teaching during the week.
However, petitioner was mistaken. After pleading guilty to the
charge of violating his probation, petitioner was sentenced to 30
days in jail. The district court ordered that his sentence begin
immediately.201
While in jail, Cona instructed his ex-wife to log in to his account on
the districts electronic school-absence system and list personal days as
the reason for his long absence.202 The system rejected that entry,
prompting future unsuccessful attempts to enter family illness and
leave of absence.203 Eventually, at the petitioners direction, his exborrows heavily from the 2012 Survey article on evidence. See Meizlish, supra note 23,
at 804.
196. Windemuller Elec. Co. v. Blodgett Meml Med. Ctr., 130 Mich. App. 17, 23, 343
N.W.2d 223, 225 (1983).
197. Meizlish, supra note 23, at 80405.
198. Cona v. Avondale School Dist., 303 Mich. App. 123, 125126, 842 N.W.2d 277,
279 (2013).
199. Id. at 126, 842 N.W.2d at 279.
200. Id.
201. Id. at 12627, 842 N.W.2d at 280 (footnote omitted).
202. Id. at 127, 842 N.W.2d at 280.
203. Id.

2015]

EVIDENCE

715

wife met with the superintendent and explained where Cona truly was.204
At some point during his incarceration, word spread among the students
that one of their teachers was in jail.205
Shortly after his release in early May 2011, the petitioner met with
the superintendent and asked to return to his position.206 Instead, the
district placed him on leave for the balance of the school year.207
On June 22, 2011, [Superintendent George] Heitsch sent
petitioner a letter stating that [p]ending the successful resolution
of [his] suspension, petitioner would be placed as a social
studies teacher in the middle school for the 2011-2012 school
year. The parties then entered into settlement negotiations, but
the negotiations eventually broke down and no resolution was
ever reached.208
The school district subsequently discharged the petitioner.209 Cona
appealed to the Michigan Tenure Commission, which held a hearing
before a referee and then affirmed the discharge.210 The petitioner then
filed an application with the Michigan Court of Appeals, which granted
leave to appeal.211
On appeal, the petitioner argued that the tenure commission erred in
its final determination and that in arriving at that determination, the
commissions referee erred in excluding evidence of the settlement
negotiations.212 He argued that the evidence would have established the
districts earlier intent to reassign him, and that it would have impeached
the superintendents credibility.213
The appellate panel acknowledged that Rule 408 generally operates
to exclude evidence of compromise to establish a partys liability but
does not require exclusion when the evidence is offered for another
purpose, such as proving bias or prejudice of a witness.214 Here,
however, the panel concluded that Heitschs efforts to negotiate a
204. Id. at 12728, 842 N.W.2d at 280.
205. Id. at 128, 842 N.W.2d at 281.
206. Id.
207. Id.
208. Id. at 128, 842 N.W.2d at 28081.
209. Id. at 130, 842 N.W.2d at 281.
210. Id. at 13036, 842 N.W.2d at 281285.
211. Id. at 136, 842 N.W.2d at 285 (citing Cona v. Avondale Sch. Dist., No. 310893,
2013 Mich. App. LEXIS 1815, at *1 (Mar. 19, 2013)).
212. Id. at 141, 842 N.W.2d at 287.
213. Id.
214. Id. (quoting MICH. R. EVID. 408).

716

WAYNE LAW REVIEW

[Vol. 60:687

resolution with Cona did not establish bias on his part.215 Furthermore,
assuming arguendo that the rules permit a partys use of a witnesss prior
statements in compromise negotiations to impeach the witness, the
record . . . contain[s] no allegations of fact that call into question the
testimony of Dr. Heitsch or [Avondale High School Principal Frederick]
Cromie.216 Accordingly, Judge Kathleen Jansen, writing for a
unanimous panel of herself and Judges Donald S. Owens and Joel P.
Hoekstra,217 found no grounds to disturb the commissions ruling and
affirmed Conas discharge.218
F. Statements During Plea Negotiations
Rule 410(4) of the Michigan Rules of Evidence provides that an
adverse party in a civil or criminal proceeding may not use a defendants
prior statements made in the course of plea discussions with an attorney
for the prosecuting authority which do not result in a plea of guilty or
which result in a plea of guilty later withdrawn.219 Subsequent to the
Survey period, the Michigan Supreme Court agreed with the court of
appeals Survey-period decision in People v. Smart that Rule 410(4)
does not require that a statement made during plea discussions be made

215. Id. at 14142, 842 N.W.2d at 28788.

216. Id. at 142, 842 N.W.2d at 288 (internal quotation marks omitted).
217. Id. at 124, 842 N.W.2d at 279.
218. Id. at 14445, 842 N.W.2d at 289. Jansen explained:
Respondent had principled reasons for discharging petitioner from
employment. The written tenure charges were developed with reference to
specific circumstances and conduct that, in Heitschs professional judgment,
affected petitioners ability to continue serving as a teacher. Petitioner had been
convicted of driving while impaired, had violated the terms of his probation by
using drugs and alcohol, had missed 17 days of work as a result of his
incarceration, and had provided false reasons for his absence. Moreover,
petitioners 17-day absence disrupted the learning process at Avondale High
School, at least for those students in petitioners classes. Respondents reasons
for discharging petitioner were developed with reference to these particular
facts and circumstances, and were not freakish, whimsical, or apt to change
suddenly. Nor is there any evidence to suggest that respondents reasons were
based on prejudice, animus, or improper motives. In light of the record
evidence presented in this case, the Commission determined that respondents
reasons were not arbitrary or capricious within the meaning of MCL
38.101(1), as amended. We conclude that the Commissions determination in
this regard was authorized by law and supported by competent, material, and
substantial evidence on the whole record.
Id. at 14344, 842 N.W.2d at 289 (citations omitted).
219. MICH. R. EVID. 410(4). The federal rule is virtually identical. See FED. R. EVID.
410(4).

2015]

EVIDENCE

717

in the presence of an attorney for the prosecuting authority for the

statement to be inadmissible under the subrule.220
The one-paragraph order from the supreme court221 overruled People
v. Hannold, which suggested that a prosecuting attorney must be
physically present during the plea negotiations to trigger application of
Rule 410(4).222
Under existing law, to trigger Rule 410(4), the defendant must . . .
have an actual subjective expectation to negotiate a plea at the time of
the discussion and that such expectation be reasonable under the totality
of the circumstances.223 Furthermore, while the prosecuting attorney
need not be physically present, negotiations must be underway with the
prosecutors office, as [i]n the course of means in the process of,
during the progress of. It is conceivable that a defendant may speak to
persons other than an attorney for the prosecuting authority in the course
of plea discussions.224 Such was the court of appeals holding in People
v. Smart, a decision the court delivered during the Survey period.225
Genesee County charged Mantrease Datrell Smart with several
felony counts, including felony murder and armed robbery, for his
220. People v. Smart, 497 Mich. 950, 950, 857 N.W.2d 658, 658 (2015).
221. Id.
222. People v. Hannold, 217 Mich. App. 382, 391, 551 N.W.2d 710, 714 (1996). One
might fairly characterize Hannolds statement about the physical presence of the
prosecuting attorney as more dicta than holding:
Specifically, defendant contends that these statements were made in the context
of plea negotiations and therefore were admitted in violation of MRE 410
(inadmissibility of pleas, plea discussions, and related statements). However,
defendant failed to object at trial to the admission of these statements.
Accordingly, this issue is not preserved. People v Mooney, 216 Mich. App.
367, 375; 549 N.W.2d 65, 69 (1996). In any event we find no error. Our review
of the trial record, including defendants trial testimony, reveals no evidence or
indication that defendant had a subjective expectation to negotiate a plea when
he made his incriminating statements to the police on October 3, 1991. Nor is
there any evidence or indication that any such expectation would have been
reasonable under the circumstances. See, generally, People v Dunn, 446 Mich.
409, 415416; 521 N.W.2d 255 (1994). Moreover, the record clearly reveals
that no prosecuting attorney was present at the time defendant made his
incriminating statements to the police. Thus, MRE 410, which was amended
two days before defendant was arrested in this case, is simply inapplicable.
Because the statements were not erroneously admitted, defendant has failed to
demonstrate that counsel erred in failing to object to their admission. People v
Briseno, 211 Mich. App. 11, 17; 535 N.W.2d 559 (1995).
Hannold, 217 Mich. App. at 391, 551 N.W.2d at 714.
223. People v. Smart, 304 Mich. App. 244, 253, 850 N.W.2d 579, 582 (2014) (citing
People v. Dunn, 446 Mich. 409, 415, 521 N.W.2d 255, 258 (1994)).
224. Id. at 252 (quoting I OXFORD ENGLISH DICTIONARY 1088 (compact ed. 1971)).
225. Id. at 25153, 850 N.W.2d at 58283.

718

WAYNE LAW REVIEW

[Vol. 60:687

having supplied a gun to two individuals who executed a robbery and

shot the victim.226 The court of appeals supplied the basic facts of the
plea negotiations:
Defendants involvement was unknown until he was charged
in another incident and advised his attorney in that case, Patricia
Lazzio, that he had information concerning a homicide. Hoping
to work out a favorable plea bargain in the pending case against
him, Lazzio spoke with Assistant Prosecuting Attorney
Richmond Riggs of the Genesee County Prosecutors Office and
thereafter arranged a meeting with Sergeant Mitch Brown, the
officer in charge of the homicide case, to discuss the instant
matter. Lazzio, believing that defendant may have been a witness
to the murder, elicited an agreement from Riggs that the
information defendant provided at the meeting would not be
used against him. At the March 15, 2011 meeting attended by
Sergeant Brown, defendant, and Lazzio, defendant (to Lazzios
surprise) admitted to providing a weapon to the individuals who
planned the robbery of Kreuzer and then witnessing the shooting.
Thereafter, defendant entered into a written plea agreement in
the case pending against him. Defendant subsequently desired to
schedule another meeting with Sergeant Brown because
defendant questioned whether his attorney had secured the best
possible plea agreement. Sergeant Brown and Lazzio both
believed the plea agreement would not change, and Lazzio asked
Sergeant Brown to tell defendant that the plea agreement would
not improve. Nevertheless, the prosecutors office urged
Sergeant Brown to meet with defendant again to see if he could
obtain more information from defendant about the homicide.
As a result, a second interview between defendant, Lazzio,
and Sergeant Brown took place on June 8, 2011. At that meeting,
Sergeant Brown told defendant that he did not think that the plea
agreement was going to get any better and that it was the
prosecutors office that decided what plea deals to offer.
Defendant and Sergeant Brown still continued to converse and
defendant ultimately revealed further information about the
robbery and homicide that implicated him more than he had

226. Id. at 247, 850 N.W.2d at 580.

2015]

EVIDENCE

719

originally admitted. Defendant was thereafter charged in the

instant case.227
Prior to trial, the prosecution conceded that the March 15 statement
was inadmissible, but contended that the June 8 statement did not fall
within the ambit of Rule 410(4) as the defendant did not have a
reasonable expectation at that juncture to negotiate a plea.228 The trial
court suppressed both statements.229
A two-person majority on the court of appeals affirmed the trial
courts order suppressing the statements.230 Judge Deborah A. Servitto,
writing for herself and Judge Mark J. Cavanagh, concluded that the
defendants expectation prior to the June 8 meeting was reasonable in
light of the circumstances, given the tweaks to Smarts plea agreement
the parties made after that meeting.231 Judge Servitto observed:
[D]efendant initiated the June 8, 2011 meeting by telling his
attorney that he thought he should get a better plea deal. In
response, [defense attorney Patricia] Lazzio arranged the
meeting with Sergeant [Mitch] Brown. Lazzio did ask Sergeant
Brown to tell defendant that the deal was not going to get better.
But, importantly, Sergeant Brown did not simply call defendant
and tell him that the plea agreement was not going to improve or
that he needed to talk to the prosecuting authority. Instead,
Sergeant Brown spoke to the prosecuting authority and, with the
prosecutions urging, scheduled another meeting with defendant
as requested. The prosecuting authority was involved in the
process of scheduling the June 8, 2011 meeting, just as it was
with the March 15, 2011 meeting, and directed Sergeant Brown
to see what information he could obtain from defendant about
the homicide, just as it had with the March 15, 2011 meeting.
This was not a situation in which the prosecution took a handsoff approach after the March 15, 2011 meeting was held.
Furthermore, all parties were well aware that defendant was
specifically requesting the second meeting to see if he could
negotiate a better plea agreement. In holding the meeting with
the knowledge that defendant requested and would appear at the
meeting in an attempt to negotiate a better plea deal, Sergeant
227.
228.
229.
230.
231.

Id. at 24748, 850 N.W.2d at 58081.

Id. at 249, 850 N.W.2d at 581.
Id., 850 N.W.2d at 581.
Id. at 247, 850 N.W.2d at 580.
Id. at 25457, 850 N.W.2d at 58485.

720

WAYNE LAW REVIEW

[Vol. 60:687

Brown, at the prosecutions direction, gave defendant a

reasonable belief that plea negotiations would take place at the
June 8, 2011 meetingjust as they had when defendant
requested the March 15, 2011 meeting for purposes of
negotiating a plea agreement.
At the meeting, Sergeant Brown did communicate to
defendant that he did not believe the deal would get any better.
Sergeant Brown also, however, told defendant that the decision
was not his to make, but rather, a decision made by the
prosecutors office. In addition, Sergeant Brown told defendant
that he would give this information to the Prosecutor and they
would be very interested in hearing what you just told me. This
statement could also serve to bolster defendants belief that a
potentially more promising plea agreement could be
forthcoming.232
Accordingly, the panel affirmed the trial courts order suppressing
the statements.233 It was the prosecutors application for leave to appeal
Servittos opinion that led to the supreme courts brief order overruling
Hannold. Judge Kurtis T. Wilder, dissenting, would have reversed the
trial courts suppression of the June 8 statement.234
V. RULES 50102: PRIVILEGES
A partys proper invocation of a privilege, similar to a courts
suppression order, has the powerful impact of rendering otherwise
competent, relevant, and admissible evidence inadmissible.235 Relatedly,
while the court rules allow for generally liberal discovery,236 the courts
have limited the scope of discovery to non-privileged material.237 In
Michigan, courts look to the common law for the parameters of
232. Id.
233. Id. at 257, 850 N.W.2d at 585.
234. Id. at 25777, 850 N.W.2d at 58595 (Wilder, J., dissenting).
235. MICH. R. EVID. 402 (stating that all relevant evidence is admissible, except as
otherwise provided by the Constitution of the United States, the Constitution of the State
of Michigan, these rules, or other rules adopted by the Supreme Court (emphasis
added)); MICH. R. EVID. 501 (noting that privilege is governed by the common law,
except as modified by statute or court rule). This introductory material to privileges is
substantially similar, if not identical, to the previous years Survey article on evidence.
See Meizlish, supra note 3, at 111011.
236. See MICH. CT. R. 2.302(B)(1).
237. Id. (Parties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action. (emphasis added)).

2015]

EVIDENCE

721

privileges, unless court rules or legislative statutes otherwise modify

those privileges.238 The general rule Michigan courts follow is to
construe privileges narrowly,239 as they are in derogation of the search
for truth.240
Under Michigan law, a court may not compel a witness to testify
against his or her spouse in a civil or criminal action, over the witnesss
objection, subject to various exceptions.241 One of those exceptions, in
which the privilege does not apply and where the trial court, thus, may
force the witness to testify against his spouse (against the witnesss
wishes), is [i]n a cause of action that grows out of a personal wrong or
injury done by one to the other or that grows out of the refusal or neglect
to furnish the spouse or children with suitable support.242
In People v. Szabo, the Michigan Court of Appeals held that the
spousal privilege statute, MCL 600.2162, is unambiguous and that where
the witness is a victim of a crime the defendant-spouse commits, no
privilege applies, and the trial court may force the witness to testify
against his or her spouse.243
Kevin Thomas Szabo armed himself with a rifle and entered the
Wayne County home of his estranged wife and three children on January
30, 2011.244 Szabos wife, Michelle, and a man named Michael were in
the home.245 During the encounterthe appellate opinion lacks
specificityMichael received a gunshot wound.246 Lincoln Park police
responded to the scene and discovered bullet holes in two walls of the
house and found Michelle Szabo visibly upset.247
Prosecutors charged the defendant with assault with intent to murder,
two counts of felonious assault, and one count of felony firearm.248 Prior
238. MICH. R. EVID. 501. In federal cases, it is the federal courts interpretation of the
common law that sets the parameters of those privileges. FED. R. EVID. 501. Federal
courts will only defer to the state law on privileges in civil cases, and only regarding a
claim or defense for which state law supplies the rule of decision. Id.
239. Harrison v. Munson Healthcare, Inc., 304 Mich. App. 1, 24, 851 N.W.2d 549, 563
(2014).
240. Howe v. Detroit Free Press, 440 Mich. 203, 228 n.1, 487 N.W.2d 374, 585 n.1
(1992) (Boyle, J., concurring in part and dissenting in part) (quoting United States v.
Nixon, 418 U.S. 683, 710 (1974)) (internal quotation marks omitted).
241. MICH. COMP. LAWS ANN. 600.2162(1), (2) (West 2015).
242. Id. 600.2162(3)(d).
243. People v. Szabo, 303 Mich. App. 737, 748, 846 N.W.2d 412, 418 (2012) (citing
People v. Cole, 491 Mich. 325, 330, 817 N.W.2d 497 (2012)).
244. Id. at 738, 846 N.W.2d at 414.
245. Id.
246. Id.
247. Id.
248. Id.

722

WAYNE LAW REVIEW

[Vol. 60:687

to the preliminary examination in district court, Kevin Szabos attorney

told the district judge that:
Its my understanding that the, uh, government intends to call
the wife of [defendant], and sheits my understanding shes
going to exercise her, uh, her spousal privilege. After the
potential witnesses were sequestered, the prosecution called
Szabo as its first witness. The court then asked: You want to
argue the spousal privilege, or call her first? The prosecutor
responded that he would call [Michelle] Szabo first.249
Both Michelle Szabo and a police detective testified, after which the
district court bound over one count of felonious assault and one count of
felony firearm.250 Upon the case arriving in circuit court (the trial court
for felonies), the defendant moved to quash the charges in light of their
deriving from the testimony of his spouse and contended that the district
court had unlawfully compelled the testimony in contravention of the
spousal-privilege statute.251 Contemporaneous with his motion, the
defendant filed Michelle Szabos affidavit, in which she asserted a
privilege not to testify and that she did not fear her husband.252 The
circuit court agreed with the defense and dismissed the charges.253
A panel of the Michigan Court of Appeals noted that in the previous
incarnation of the spousal-privilege statute, the defendant/nonwitness
spouse held the privilege, unless an exception existed.254 In a per curiam
opinion, a unanimous panel of Judges Michael J. Kelly, Mark J.
Cavanagh, and Douglas B. Shapiro,255 however, explained that [t]he
spousal privilege statute at issue here specifically denies the victimspouse a testimonial privilege in a case that grew out of a personal wrong
or injury done by the defendant-spouse to the victim-spouse.256
Accordingly, because the Szabo case concerned an injury/wrong by
Kevin Szabo on Michelle Szabo, the defendants wife was not vested
with a spousal privilege; thus, her consent to testify was not required and
she could be compelled to testify against defendant in this criminal
249. Id. at 739, 846 N.W.2d at 414 (alteration in original).
250. Id.
251. Id.
252. Id.
253. Id. at 740, 846 N.W.2d at 414.
254. Id. at 74142, 846 N.W.2d at 415 (citing People v. Moorer, 262 Mich. App. 64,
76, 683 N.W.2d 736, 744 (2004); People v. Love, 425 Mich. 691, 700, 391 N.W.2d 738,
742 (1986)).
255. Id. at 749, 846 N.W.2d at 419.
256. Id. at 748, 846 N.W.2d at 419 (emphasis added).

2015]

EVIDENCE

723

prosecution.257 The panel thus reversed the circuit courts dismissal of

the charges and remanded the matter to the circuit court.258
VI. RULES 60115: WITNESSES
A. Impeachment
1. Rule 609: Impeachment with a Witnesss Prior Conviction
One of the means to discredit a witness at trial is through the use of
the witnesss prior convictions of a crime.259 Both the Michigan rules and
federal rules agree that a prior conviction for an offense containing an
element of a dishonest act or false statement, regardless of whether it is a
felony or misdemeanor, is admissible to impeach the witness, subject
only to time limitations.260 However, if the prior impeaching crime did
not contain an element of dishonesty or false statement, then it must be a
felony (and in Michigan, it must also contain an element of theft),261 and
the court must usually balance various factors appearing in Rule 609
before determining whether the prior conviction is admissible.262 It is the
balancing tests in Rule 609 that can render a trial somewhat
unpredictable, as was the case in People v. McDonald.263
In McDonald, the court of appeals reaffirmed that when a trial court
rules that a defendants prior conviction is admissible to impeach him as
a witness pursuant to Rule 609, the defendant must take the stand to
preserve his challenge to the trial courts Rule 609 ruling.264 A defendant
who chooses not to take the stand in light of a Rule 609 ruling does not
merely forfeit his objection to the ruling (which would render the trial
courts review subject to some review under the highly-deferential plain257. Id. at 749, 846 N.W.2d at 418 (emphasis added).
258. Id.
259. See MICH. R. EVID. 609; FED. R. EVID. 609. This introduction to impeachment
borrows from the previous years Survey article on evidence. See Meizlish, supra note 3,
at 1115. In the absence of a criminal conviction, both the federal and state rules permit a
party to impeach a witness with evidence of that witnesss dishonest acts, but the rules
limit that source of the impeachment evidence (the dishonest acts) to one person: the
witness. MICH. R. EVID. 608(b); FED. R. EVID. 608(b). In other words, a party may crossexamine a witness about specific acts that reflect adversely on the witnesss character for
truthfulness, but, if the witness denies committing the dishonest acts, the examining party
may not introduce extrinsic evidence of the dishonest actsit must, instead, take the
answer.
260. MICH. R. EVID. 609(a)(1)(c); FED. R. EVID. 609(a)(2)(b).
261. MICH. R. EVID. 609(a)(2); FED. R. EVID. 609(a)(1).
262. MICH. R. EVID. 609 (a)(2)(B); FED. R. EVID. 609(a)(1)(B).
263. 303 Mich. App. 424, 844 N.W.2d 168 (2013).
264. Id. at 42930, 844 N.W.2d at 172.

724

WAYNE LAW REVIEW

[Vol. 60:687

error standard);265 rather, the decision operates as a waiver, precluding

any appellate review.266 Quoting the Michigan Supreme Courts opinion
in People v. Finley, the McDonald Court observed that error does not
occur until error occurs; that is, until the evidence is admitted.267 The
Finley court further explained:
[I]f an offer of proof is made and the court erroneously permits
the introduction of hearsay, character evidence, similar acts, or
the myriad of evidence objectionable under the MRE, there is no
error requiring reversal unless the evidence actually is
introduced. Unless the defendant actually testifies, a number of
questions remain open to speculation:
Any possible harm flowing from a district courts in
limine ruling permitting impeachment by a prior
conviction is wholly speculative. The ruling is subject to
change when the case unfolds, particularly if the actual
testimony differs from what was contained in the
defendants proffer. Indeed even if nothing unexpected
happens at trial, the district judge is free, in the exercise
of sound judicial discretion, to alter a previous in limine
ruling. On a record such as here, it would be a matter of
conjecture whether the District Court would have
allowed the Government to attack petitioners credibility
at trial by means of the prior conviction.268
Thus, the appellate tribunal summarized, the court of appeals is
unable to evaluate the trial courts Rule 609 ruling without the factual
context of the defendants testimony in light of all the other evidence in
the case.269
Prior to his trial on multiple felony charges; including first-degree
home invasion, armed robbery, and felony firearm;270 Gerald Duane
265. Id. (citing People v. Finley, 431 Mich. 506, 431 N.W.2d 19 (1988); People v.
Boyd, 470 Mich. 363, 682 N.W.2d 459 (2004); People v. Carter, 462 Mich. 206, 215, 612
N.W.2d 144, 149 (2000)).
266. Id.
267. Id. at 429, 844 N.W.2d at 172 (quoting Finley, 431 Mich. at 512, 431 N.W.2d at
21).
268. Finley, 431 Mich. at 51213, 431 N.W.2d at 21 (quoting Luce v. United States,
469 U.S. 38, 4142 (1984)).
269. McDonald, 303 Mich. App. at 430, 844 N.W.2d at 173 (citing Luce, 469 U.S. at
42; Finley, 431 Mich. at 512513, 431 N.W.2d at 21).
270. Id. at 426, 844 N.W.2d at 170.

2015]

EVIDENCE

725

McDonald lost a motion in limine to preclude the prosecution from

impeaching him with a prior conviction for first-degree home invasion, if
he elected to testify in his own defense.271
A Calhoun County woman testified that in early November 2011,
between 4 and 5 AM, she entered her dining room where she saw
McDonald pointing a silver handgun at her, demanding money.272 She
had none to give, and the defendant exited her home after a few
minutes.273 The victim realized her purse was missing and called police
with a description of the robber.274 Police found the defendant about two
blocks away, where there was a struggle, and they located a silver
handgun near the site of the struggle after McDonalds arrest.275 The
homeowner identified the defendant as the home invader/robber about an
hour after the incident, a second time when the defendant was in a
lineup, and a third time at trial.276
The defendant did not testify at his trial, but an alleged girlfriend
testified that she had been living with McDonald in November 2011 and
that he had not left the apartment until minutes before his encounter with
the police.277 The jury found the defendant guilty as charged.278
Citing Finley, and holding that the defendant waived appellate
review of the trial courts anticipatory ruling permitting the prosecution
to impeach the defendant with his prior home-invasion conviction, the
appellate panel of Chief Judge William B. Murphy, writing for himself
and Judges E. Thomas Fitzgerald and Stephen L. Borrello,279 affirmed
the defendants conviction, for this and other reasons.280
2. Rule 608(b): Impeachment with a Witnesss Prior Acts of
Dishonesty
Apart from impeaching a witness with her prior conviction of a
crime,281 a party may have another witness give testimony in the form of
reputation or opinion as to the first witnesss character for truthfulness.282
However, while the impeaching party may cross-examine the witness
271.
272.
273.
274.
275.
276.
277.
278.
279.
280.
281.
282.

Id. at 42829, 844 N.W.2d at 17172.

Id. at 427, 844 N.W.2d at 171.
Id.
Id.
Id.
Id. at 42728, 844 N.W.2d at 171.
Id. at 428, 844 N.W.2d at 171.
Id.
Id. at 440, 844 N.W.2d at 178.
Id. at 433, 440, 844 N.W.2d at 174, 178.
See supra Part VI.A.1.
MICH. R. EVID. 608(a); FED. R. EVID. 608(a).

726

WAYNE LAW REVIEW

[Vol. 60:687

about her prior acts of dishonesty (and hope that she acknowledges that
the prior acts occurred), Rule 608(b) provides that he may not introduce
extrinsic evidence of the witness committing the prior acts of
dishonesty.283 It is a widely accepted rule of evidence law that generally
precludes the admission of evidence of specific instances of a witness
conduct to prove the witness character for untruthfulness.284
In Nevada v. Jackson, the U.S. Supreme Court recently explained
that [t]he admission of extrinsic evidence of specific instances of a
witness conduct to impeach the witness credibility may confuse the
jury, unfairly embarrass the victim, surprise the prosecution, and unduly
prolong the trial.285 Rule 608(b)s purpose is to focus the fact-finder on
the most important facts and conserve judicial resources by avoiding
mini-trials on collateral issues.286 (For a brief discussion of the Sixth
Circuits application of Rule 608(b) to a rape accusers prior recantation
of a sexual-abuse allegation, see Part IV.B.3 of this Article.)
In Jackson, a Survey-period case, the high court, in a unanimous per
curiam opinion, held that Rule 608(b), when it operates to preclude a
criminal defendant from introducing extrinsic evidence of a witnesss
prior acts of dishonesty, does not violate the Confrontation Clause of the
Sixth Amendment.287 [T]he Confrontation Clause is generally satisfied
when the defense is given a full and fair opportunity to . . . expose
[testimonial] infirmities through cross-examination.288 The U.S.
Supreme Court summarized the Jackson facts as follows:
Respondent Calvin Jackson had a tumultuous decade-long
romantic relationship with Annette Heathmon. In 1998, after
several previous attempts to end the relationship, Heathmon
relocated to a new apartment in North Las Vegas without telling
respondent where she was moving. Respondent learned of
Heathmons whereabouts, and on the night of October 21, 1998,
he visited her apartment. What happened next was the focus of
respondents trial.
Heathmon told police and later testified that respondent forced
his way into her apartment and threatened to kill her with a
screwdriver if she did not have sex with him. After raping
283. MICH. R. EVID. 608(b); FED. R. EVID. 608(b).
284. Nevada v. Jackson, 133 S. Ct. 1990, 1993 (2013).
285. Id. at 199394.
286. Id. at 1993 (quoting Abbott v. State, 138 P.3d 462, 476 (Nev. 2006)).
287. Id. at 1994.
288. Id. (quoting Delaware v. Fensterer, 474 U.S. 15, 22 (1985) (per curiam)) (internal
quotation marks omitted).

2015]

EVIDENCE

727

Heathmon, respondent hit her, stole a ring from her bedroom,

and dragged her out of the apartment and toward his car by the
neck and hair. A witness confronted the couple, and respondent
fled. Police observed injuries to Heathmons neck and scalp that
were consistent with her account of events, and respondent was
eventually arrested.289
Jacksonduring an interview with police after his arresttold
police the sex was consensual but conceded that Heathmon might have
agreed to have sex because the two were alone and she was scared that
[he] might do something.290 Prior to trial, the victim sent the trial judge
a letter in which she recanted her allegations and refused to testify in the
matter.291 Police took Heathmon into custody as a material witness.292
Heathmon agreed to testify once in custody, and told the court at trial
that three of Jacksons associates threatened to hurt her if she cooperated
with authorities and coerced her into recanting her earlier allegations and
writing the letterwhose contents she said were false.293
At trial, the defense cross-examined the victim about prior
allegations of rape and/or assault she had made against Jackson, but the
trial court precluded the defense from introducing police reports or other
testimony to establish the falsity of the prior allegations.294 The jury
found Jackson guilty, a conviction that Nevadas appellate courts
upheld.295
Jackson sought habeas relief in federal courts.296 The district court
denied relief, but the U.S. Court of Appeals for the Ninth Circuit granted
his petition for a writ, ordering a retrial and concluding that the trial
courts exclusion of the dishonest acts violated Jacksons Sixth
Amendment right to present a complete defense.297
Whereas Nevada law permits impeachment by extrinsic acts of
dishonesty where the victim denies making prior false allegations of
sexual assault, the state requires defendants must serve notice upon the

289. Id. at 1991.

290. Id.
291. Id.
292. Id. Both Michigan and federal law provide for the detention of material witnesses.
See MICH. COMP. LAWS ANN. 767.35 (West 2015); 18 U.S.C.A. 3144 (West 2014).
293. Jackson, 133 S. Ct. at 1991.
294. Id.
295. Id.
296. Id. at 1992.
297. Id. (citing Jackson v. Nevada, 688 F.3d 1091 (9th Cir. 2012)).

728

WAYNE LAW REVIEW

[Vol. 60:687

prosecution of their intent to do so.298 The defense filed no such notice in

the Jackson case.299
Reversing the Ninth Circuits order that Nevada retry Jackson, the
high court explained that
[n]o decision of this Court clearly establishes that this notice
requirement is unconstitutional. Nor, contrary to the reasoning of
the Ninth Circuit majority, . . . do our cases clearly establish that
the Constitution requires a case-by-case balancing of interests
before such a rule [precluding extrinsic acts of dishonesty to
impeach a witness] can be enforced.300
3. Impeachment with a Defendants Pre-Trial Silence, or Silence at a
Previous Trial
It is well-settled law that a prosecutor may not comment at trial on a
defendants choice not to take the stand in his own defense.301
Furthermore, pursuant to Doyle v. Ohio,302 the prosecution may not
impeach a testifying defendant who received Miranda303 warnings with
his post-arrest/post-Miranda silence.304 On the other hand, a prosecutor
may use a defendants pre-arrest or post-arrest silence to impeach him as
a witness if he elects to testify in his defense, provided the silence was
not in response to Miranda warnings.305
a. Raffel v. United States: Impeachment with Silence at an
Earlier Trial During a Defendants Testimony on Retrial
The prosecution may impeach a testifying defendant during a retrial
with the fact that he chose to remain silent during an earlier trial, the
Michigan Supreme Court held in the Survey period case of People v.
Clary.306 The court approvingly quoted the U.S. Supreme Courts
298. Id. at 1993 (citing Miller v. State, 779 P.2d 87, 8889 (Nev. 1989)).
299. Id.
300. Id. (citing Jackson, 688 F.3d at 110304).
301. People v. Clary, 494 Mich. 260, 265, 833 N.W.2d 308, 312 (2013) (citing Griffin
v. California, 380 U.S. 609, 615 (1965)).
302. Doyle v. Ohio, 426 U.S. 610, 61819 (1976).
303. Miranda v. Arizona, 384 U.S. 436, 444 (1966).
304. Clary, 494 Mich. at 265, 833 N.W.2d at 312 (citing Doyle, 426 U.S. at 61819).
305. Id. at 266, 833 N.W.2d at 312 (citing Jenkins v. Anderson, 447 U.S. 231, 232,
238, 240 (1980) (pre-arrest silence); Fletcher v. Weir, 455 U.S. 603, 607 (1982) (postarrest silence)).
306. 494 Mich. at 26263, 833 N.W.2d at 31011.

2015]

EVIDENCE

729

decision in Raffel v. United States,307 where the high court explained the
potential relevance of earlier silence in the face of a criminal charge:
[I]f the cross-examination had revealed that the real reason for
the defendants failure to contradict the governments testimony
on the first trial was a lack of faith in the truth or probability of
his own story, his answers would have a bearing on his
credibility and on the truth of his own testimony in chief.
It is elementary that a witness who upon direct examination
denies making statements relevant to the issue, may be crossexamined with respect to conduct on his part inconsistent with
this denial. The value of such testimony, as is always the case
with cross-examination, must depend upon the nature of the
answers elicited; and their weight is for the jury. But we cannot
say that such questions are improper cross-examination, although
the trial judge might appropriately instruct the jury that the
failure of the defendant to take the stand in his own behalf is not
in itself to be taken as an admission of the truth of the testimony
which he did not deny.308
Courts must consider the underlying purposes of the Fifth
Amendment privilege against self-incrimination and the due process
clauses when considering the admissibility of silence at trial:
The safeguards against self-incrimination are for the benefit of
those who do not wish to become witnesses in their own behalf
and not for those who do. There is a sound policy in requiring
the accused who offers himself as a witness to do so without
reservation, as does any other witness. We can discern nothing in
the policy of the law against self-incrimination which would
require the extension of immunity to any trial or to any tribunal
other than that in which the defendant preserves it by refusing to
testify.309
During Rayfield Clarys first trial in Wayne County for assault with
intent to murder and felony firearm, a witness testified that the defendant

307. 271 U.S. 494, 49798 (1926).

308. Clary, 494 Mich. at 26768, 833 N.W.2d at 31314 (quoting Raffel, 271 U.S. at
49798).
309. Id. at 269, 833 N.W.2d at 314 (quoting Raffel, 271 U.S. at 499).

730

WAYNE LAW REVIEW

[Vol. 60:687

shot him.310 Clary did not testify, and the presiding judge declared a
mistrial after the jury was unable to reach a unanimous verdict.311 During
the second trial, Clary did testify in his own defense,312 prompting the
following questions from the prosecution: You didnt tell that jury [the
previous jury] the same story youre telling this jury, did you, sir? and
[I]f that was the truth and that was so important, why didnt you tell the
last jury?313
During closing statements, the prosecutor remarked to the jury,
Well, ladies and gentleman, if its the truth, if its the truth and youre
on trial, why wouldnt you tell the first jury?314 The jury convicted the
defendant of both charges at the second trials conclusion.315 On appeal,
however, a unanimous panel of the Michigan Court of Appeals reversed
the conviction, concluding that the prosecutions references to Clarys
silence during his first trial was improper impeachment,316 but the
Michigan Supreme Court granted the Wayne County prosecutors
application for leave to appeal.317 The high court reversed the
intermediate appellate tribunals judgment as to impeaching the
defendant with his silence at a prior trial.318 Justice Stephen J. Markman,
writing for a four-person majority of himself, Chief Justice Robert P.
Young Jr., and Justices Mary Beth Kelly and Brian K. Zahra,319 cited a
law review article that distinguished between requiring the courts
suppression of post-arrest/post-Miranda silence generally for
impeachment purposes, and allowing impeachment by the use of postarrest/post-Miranda silence at an earlier trial for impeachment purposes:
[T]he government inducement to remain silent, which may be
caused by the shock of arrest, the fearful nature of custody, the
Miranda warnings, or any combination thereof, will gradually
lose its influence on the defendant as pressure is diminished and

310.
311.
312.
313.
314.
315.
316.
2012).
317.
318.
319.

Id. at 263, 833 N.W.2d at 311.

Id.
Id.
Id. at 264 n.1, 833 N.W.2d at 311 n.1.
Id. at 264 n.2, 833 N.W.2d at 311 n.2 (internal quotation marks omitted).
Id.
People v. Clary, No. 301906, 2012 Mich. App. LEXIS 280, at *17 (Feb. 16,
People v. Clary, 491 Mich. 933, 814 N.W.2d 292 (2012).
Clary, 494 Mich. at 271, 833 N.W.2d at 315.
Id. at 281, 833 N.W.2d at 321.

2015]

EVIDENCE

731

advice of counsel [is] obtained, silence occurring long after the

Miranda inducement may be used for impeachment.320
The majority stated that if defendant chooses to testify at a third
trial, the prosecutor may again refer to defendants failure to testify at his
first trial without violating defendants constitutional rights.321 Why
would there be a third trial? Continue reading.
b. Doyle v. Ohio: Impeachment with Post-Arrest/Post-Miranda
Silence with Police
A third trial (second retrial) was necessary because of the
prosecutions references to the defendants silence to police.322 At
defendants second trial, the prosecutor impeached Clary by asking him
why, after his arrest and arraignment, he had not told the police that he
did not shoot the complainant. The prosecutor also referred to this silence
during her closing argument.323 The prosecutors statements violated the
rule of Doyle, as the defendant had been aware of his Miranda rights no
later than his arraignment on the charges.324 Accordingly, the supreme
court remanded the matter to the trial court for a retrial in light of the
prosecutors Doyle violation.325
c. Clary, Raffel, and Fifth Amendment Concerns
The supreme court explicitly recognized the tension326 between the
Doyle and Raffel holdings. Doyle holds that post-Miranda silence is
[in]admissible, Raffel holds that silence at an earlier trial is admissible to
impeach a defendant who testifies at a subsequent trial, even though this
silence is also post-Miranda silence.327
However, the Clary court adopted Raffels response to the argument
that Raffels holding would force defendants to testify at trial because
prosecutors could impeach them at a subsequent trial (if they chose to
testify then) with their silence at the earlier trial:
320. Id. at 273 n.9, 833 N.W.2d at 316 n.9 (quoting Note, The Admissibility of Prior
Silence to Impeach the Testimony of Criminal Defendants, 18 U. MICH. J. L. REFORM 741,
752, 766 (1985)) (internal quotation marks omitted).
321. Id. at 271, 833 N.W.2d at 315.
322. Id. at 271, 833 N.W.2d at 31516.
323. Id. at 27172, 833 N.W.2d at 316.
324. Id. at 272, 833 N.W.2d at 316.
325. Id. at 28081, 833 N.W.2d at 32021.
326. Id. at 272, 833 N.W.2d at 316.
327. Id.

732

WAYNE LAW REVIEW

[Vol. 60:687

We need not close our eyes to the fact that every person accused
of crime is under some pressure to testify, lest the jury, despite
carefully framed instructions, draw an unfavorable inference
from his silence. When he does take the stand, he is under the
same pressure: to testify fully, rather than avail himself of a
partial immunity. And the accused at the second trial may well
doubt whether the advantage lies with partial silence or with
complete silence. Even if, on his first trial, he were to weigh the
consequences of his failure to testify then, in the light of what
might occur on a second trial, it would require delicate balances
to enable him to say that the rule of partial immunity would
make his burden less onerous than the rule that he may remain
silent, or at his option, testify fully, explaining his previous
silence. We are unable to see that the rule that if he testifies, he
must testify fully, adds in any substantial manner to the
inescapable embarrassment which the accused must experience
in determining whether he shall testify or not.328
Accordingly, the Michigan Supreme Court held that the prosecutors
cross-examination and comment on the defendants silence at the earlier
trial did not chill his Fifth Amendment rights.329
For a table that explains the existing law on when the prosecution
can introduce or comment on a defendants silence, see Part VIII.B of
this Article.
B. Rule 614: Courts Discretion to Question Witnesses
Pursuant to Rule 614, both the Michigan and federal rules permit
judges to examine witnesses and even to call witnesses to the stand.330
However, the trial court must exercise caution and restraint to ensure
that its questions are not intimidating, argumentative, prejudicial, unfair,
or partial.331 The Michigan Court of Appeals has held that [t]he test is
whether the judges questions and comments may well have
unjustifiably aroused suspicion in the mind of the jury as to a witness

328. Id. at 27475, 833 N.W.2d at 317 (quoting Raffel v. United States, 271 U.S. 494,
499 (1926)).
329. Id. at 27476, 833 N.W.2d at 31718.
330. MICH. R. EVID. 614; FED. R. EVID. 614.
331. People v. Conyers, 194 Mich. App. 395, 405, 487 N.W.2d 787, 791 (1992) (citing
People v. Sterling, 154 Mich. App. 223, 228, 397 N.W.2d 182 (1986)).

2015]

EVIDENCE

733

credibility, . . . and whether partiality quite possibly could have

influenced the jury to the detriment of defendants case.332
In People v. McDonald, a case I first discussed in Part VI.A.1, the
defendant on appeal argued that the trial court slanted its questioning of
witnesses towards the prosecution.333 However, a unanimous panel of the
Michigan Court of Appeals rejected McDonalds contention, concluding
that it is evident that the court was permissibly question[ing] witnesses
in order to clarify testimony or elicit additional relevant information.334
For these and other reasons, the court affirmed McDonalds
conviction.335
VII. RULES 70107: LAY AND EXPERT OPINION TESTIMONY
A. Opinion Testimony Generally
Opinion testimony, when admissible, is an exception to the default
rule that a witness have personal knowledge of the facts to which he or
she testifies, as the rules forbid speculation.336 I devote Part VII of this
Article to the two kinds of opinion testimony: lay opinion337 and expert
opinion.338
1. Lay Opinion
In Michigan, Rule 701 provides that opinion testimony by nonexperts is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness and (b) helpful to a
clear understanding of the witness testimony or the determination of a
fact in issue.339 The corresponding federal rule is virtually identical.340
The Sixth Circuit has observed that [s]uch lay opinion testimony is
permitted under Rule 701 because it has the effect of describing
something that the jurors could not otherwise experience for themselves

332. Id. at 405, 487 N.W.2d at 791 (citations omitted) (quoting Sterling, 154 Mich.
App. at 228).
333. People v. McDonald, 303 Mich. App. 424, 437, 844 N.W.2d 168, 176 (2013).
334. Id. (quoting Conyers, 194 Mich. App. at 404, 487 N.W.2d at 791).
335. Id. at 43940, 844 N.W.2d at 17778.
336. See MICH. R. EVID. 602; FED. R. EVID. 602. Some of the introductory material
appearing in this section borrows from the previous years Survey article on evidence. See
Meizlish, supra note 3, at 1123, 113031.
337. MICH. R. EVID. 701; FED. R. EVID. 701.
338. MICH. R. EVID. 702; FED. R. EVID. 702.
339. See MICH. R. EVID. 701.
340. FED. R. EVID. 701.

734

WAYNE LAW REVIEW

[Vol. 60:687

by drawing upon the witnesss sensory and experiential observations that

were made as a first-hand witness to a particular event.341
2. Expert Opinion
Under Rule 702, an expert witness may render an opinion for the
trier of fact [i]f the court determines that scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue and the witness has the relevant
knowledge, skill, experience, [and] training.342 The testimonys
proponent must establish: (1) the testimony is based on sufficient facts
or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods
reliably to the facts of the case.343
The Michigan rules and the federal rules differ in one important
respect: whereas, under the Michigan rules the bases or data for the
experts testimony must be in evidence,344 the federal rules explicitly
provide that such data need not be in evidence.345
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the U.S. Supreme
Court held that trial courts must ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable.346 The
Daubert Court further explained that the reliability determinations
entail a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the
facts in issue.347 Factors the court can consider in determining whether
to admit expert testimony are: whether [a scientific] theory or
technique can be (and has been) tested,348 second, whether the theory
or technique has been subjected to peer review and publication,349 third,
341. United States v. Freeman, 730 F.3d 590, 595 (6th Cir. 2013) (quoting United
States v. Jayyousi, 657 F.3d 1085, 1120 (11th Cir. 2011) (Barkett, J., concurring in part
and dissenting in part)) (internal quotation marks omitted).
342. See MICH. R. EVID. 702. The corresponding federal rule is virtually identical. See
FED. R. EVID. 702.
343. MICH. R. EVID. 702.
344. MICH. R. EVID. 703.
345. FED. R. EVID. 703 (emphasis added) (But if the facts or data would otherwise be
inadmissible, the proponent of the opinion may disclose them to the jury only if their
probative value in helping the jury evaluate the opinion substantially outweighs their
prejudicial effect.).
346. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).
347. Id. at 59293.
348. Id. at 593.
349. Id.

2015]

EVIDENCE

735

the known or potential rate of error,350 and finally, whether the relevant
scientific community generally accepts the theory or technique.351
Michigan has followed the U.S. Supreme Courts lead in adopting the
Daubert standards.352
Importantly, courts have held that the threshold inquiry [is] whether
the proposed expert testimony will assist the trier of fact to understand
the evidence or to determine a fact in issue, and that requirement is
not satisfied if the proffered testimony is not relevant or does not
involve a matter that is beyond the common understanding of the average
juror.353
3. Witnesses Testifying to Both Expert Opinion and Facts
There is no general prohibition on fact witnesses also testifying as to
expert opinion, assuming they are qualified to give such opinion.354
However, there must be either a cautionary jury instruction regarding
the witnesss dual roles or a clear demarcation between the witnesss fact
testimony and expert-opinion testimony.355 Failure to do either
constitutes plain error.356
Absent such demarcation or instruction, a jury might evaluate the
strength of the witnesss opinion in the same manner as it evaluates the
factual testimony he provides, or consider that his testimony as to facts
bolsters his expert opinion.357
In United States v. Willoughby, a case whose facts I discussed in Part
IV.B.3, a police detective first described at trial the items he and his
colleagues seized from the defendants residence pursuant to a search
warrant, the contents of Willoughbys phone records, and his interview
with SW.358 He then testified about the the methods that pimps use to
control their victimssome of which, [Agent James] Hardie said,

350. Id. at 594.

351. Id. The court further explained that [w]idespread acceptance can be an important
factor in ruling particular evidence admissible, and a known technique which has been
able to attract only minimal support within the community may properly be viewed with
skepticism. Id. (citation omitted).
352. See Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 781, 685 N.W.2d 391, 408
(2004).
353. People v. Kowalski, 492 Mich. 106, 121, 821 N.W.2d 14, 2425.
354. See United States v. Willoughby, 742 F.3d 229, 239 (6th Cir. 2014).
355. Id. (citing United States v. Nixon, 694 F.3d 623, 629 (6th Cir. 2012)).
356. Id.
357. See id. (citing United States v. Lopez-Medina, 461 F.3d 724, 74445 (6th Cir.
2006)).
358. Id. at 238.

736

WAYNE LAW REVIEW

[Vol. 60:687

Willoughby had used against SW.359 These methods include posing as

their boyfriends, . . . giving them gifts, and . . . beating them when they
disobey . . . .360 Here, a unanimous panel of the Sixth Circuit observed,
the district court plainly erred in failing to instruct or bifurcate Hardies
testimony.361
Nevertheless, the evidence in the case was overwhelming, and
Hardies testimony about pimps bordered on the obvious, the panel
concluded, such that properly instructed or not, any sentient juror would
have realized that Willoughby did these things not because he cared
about SW, but to control her.362 Accordingly, despite the district courts
plain error, the panel affirmed the defendants conviction and sentence,
for this and other reasons.363
B. Law-Enforcement Officers Opinions Interpreting Wiretap Recordings
In United States v. Freeman, the Sixth Circuit joined several other
federal circuits in frowning upon law-enforcement officers lay opinion
in interpreting conversations they recorded.364 It observed:
[T]here is a risk when an agent provides interpretations of
recorded conversations based on his knowledge of the entire
investigation . . . that he [is] testifying based upon information
not before the jury, including hearsay, or at the least, that the
jury [c]ould think he ha[s] knowledge beyond what [is] before
them.365
In United States v. Grinage, a case to which the Freeman court
looked for guidance, the Second Circuit emphasized the jurys function
in determining guilt (or liability) as an important rationale for limiting
agents or officers lay opinion interpreting phone recordings:
Were [a more liberal view of Rule 701] to be accepted, there
would be no need for the trial jury to review personally any
evidence at all. The jurors could be helped by a summary
witness for the Government, who could not only tell them what
359. Id. at 238.
360. Id. at 239.
361. Id.
362. Id.
363. Id. at 243.
364. See United States v. Freeman, 730 F.3d 590, 596 (6th Cir. 2013).
365. Id. (quoting United States v. Hampton, 718 F.3d 978, 98283 (D.C. Cir. 2013);
United States v. Grinage, 390 F.3d 746, 750 (2d Cir. 2004)).

2015]

EVIDENCE

737

was in the evidence but tell them what inferences to draw from
it. That is not the point of lay opinion evidence.366
Interestingly, in a case with which most readers will be at least
somewhat familiar, former Detroit Mayor Kwame M. Kilpatrick is
asking the Sixth Circuit to reverse his convictions for public corruption
in light of law enforcement opinion testimony. In fact, Kilpatrick argued
that agents, via improper opinion testimony, spoon fe[]d the jury the
prosecution theory of the case.367
In Michigan, courts are also trending in a direction that discourages
officers lay opinion interpreting key pieces of evidence. Opinion
testimony, the Michigan Court of Appeals has held, cannot invade the
province of the jury,368 for example, by express[ing] an opinion on the
defendants guilt or innocence of the charged offense.369
In Freeman, FBI personnel had initiated a wiretap on the cellular
telephone of one Roy West during a drug investigation.370 The wiretaps
revealed that West, Marcus Freemans co-defendant, looked to exact
revenge upon Leonard Day, who had stolen over $350,000 worth of
jewelry, cash, and other property from West.371 West targeted and
threatened Days girlfriend, Kanisha Crawford, and her family in an
attempt to learn Days location.372 For his part, Freeman had offered
money to Days family in a ruse to lure Day from hiding.373 The Sixth
Circuit panel observed:
Freeman began to close in on Day. In one call with West,
Freeman commented, This shit should be any day now though
fam for real. So Im on it for sure cause I need that. On
December 17, 2005, Freeman called West asking for a cross
street for a Kilbourne Street address. West did not understand
Freemans question and asked for clarification. Freeman
366. Grinage, 390 F.3d at 750.
367. Robert Snell, Court Agrees to Hear Kilpatrick, Ferguson Appeals, DETROIT NEWS
(Nov. 28, 2014, 6:05 PM), http://www.detroitnews.com/story/news/local/waynecounty/2014/11/28/judges-schedule-kilpatrick-corruption-appeal/19633261/.
368. People v. Fomby, 300 Mich. App. 46, 5253, 831 N.W.2d 887, 891 (2013). See
Meizlish, supra note 3, at 112330, for a discussion in the preceding years Survey article
on evidence.
369. Fomby, 300 Mich. App. at 53, 831 N.W.2d at 888 (quoting People v. Bragdon,
142 Mich. App. 197, 199, 369 N.W.2d 208, 209 (1985)) (internal quotation marks
omitted).
370. United States v. Freeman, 730 F.3d 590, 592 (6th Cir. 2013).
371. Id.
372. Id. at 593.
373. Id.

738

WAYNE LAW REVIEW

[Vol. 60:687

responded, Dude just called it in, baby, sayin, shit, shit that the
truck be in the driveway at night . . . . All the belongings be right
in the drawer. Special Agent Peter Lucas, the FBI agent in
charge of the investigation, believed that the truck was a
reference to Days truck and that Freeman had located Day.374
Three days after Freemans call to West regarding the Kilbourne
address, someone (whom the government later concluded was Freeman)
shot Day as he exited a home on Kilbourne.375 During that day, phone
logs revealed that Freeman had been making many phone calls that
routed through the cellular tower nearest the house where Day was
killed.376 Five minutes after Freemans last phone call, neighbors began
telephoning 911 to report a shooting on Kilbourne, and three minutes
after the first 911 call, the wiretap revealed the following conversation
between Freeman and West:
WEST: Whats good?
FREEMAN: Everything good, man. Except for, you know . . .
you know what Im talkin about . . . just that one little thing. We
aint get the bonus, dog. But, you know what Im sayin, the
situation is over with.
WEST: You bullshittin.
FREEMAN: Fam, its over, we get rich baby, you know what
Im talkin about, but man, we sorry about that other bonus,
baby . . . .377
An FBI agent explained to the jury that, We get rich, Ohio
(mentioned in a part of the conversation between West and Freeman not
excerpted above) meant that Freeman expected a substantial bounty for
murdering Day, and the situation that Freeman characterized as over
regard[ed] Leonard Day and his having stolen jewelry from Roy West,
Roy West having put a hit on Leonard Day and Leonard Day ultimately
being killed.378

374.
375.
376.
377.
378.

Id.
Id.
Id. at 593.
Id.
Id. at 59394 (internal quotation marks omitted).

2015]

EVIDENCE

739

The government then presented evidence from wiretap recordings

and logs that suggested Freeman and West were both in Akron, Ohio a
day after the murder to exchange a payment (presumably for the contract
killing).379
Some days later Freeman was jailed after an arrest for an
unrelated offense. Phone calls between Freeman and his
girlfriend were recorded while he was incarcerated. On one call
he told her, Do not fuck that chip up. Dude name in the phone.
He also told her that BUC still owe me some cheese. Agent
Lucas testified that BUC was a reference to West and that
Freeman was telling his girlfriend that West still owed him
money.380
A federal jury in Detroit found Freeman guilty of a murder-related
conspiracy charge, and the district judge imposed a life sentence.381
The appellate panelJudge R. Guy Cole Jr., writing for himself,
Judge Deborah L. Cook, and U.S. District Judge David A.
Katz382criticized the trial court for allowing the prosecution to use the
FBI agent to (essentially) argue its case, such as when the agent testified,
I believe he is referring to the fact that he needs the payment he expects
from Roy West if hes successful in locating Leonard Day . . . for the
purpose of recovering the jewelry and killing him.383
The panel cited, among other cases, United States v. Blakely, for the
proposition that an officers testimony is improper where it substitute[s]
[the agents] interpretation of the conversations for the jurys
interpretation.384
The court expressed significant concern about the foundational
aspects of the agents opinion:
Agent Lucas repeatedly substantiated his responses and
inferences with generic information and references to the
investigation as a whole. For example, he made statements such
as We learned over our wiretaps and We were able to
determine that from some the intercepted calls . . . . He never
specified personal experiences that led him to obtain his
379. Id. at 594.
380. Id.
381. Id.
382. Id. at 592.
383. Id. at 595 (internal quotation marks omitted).
384. Id. at 596 (quoting United States v. Blakely, 375 F. Appx 565, 570 (6th Cir.
2010)) (internal quotation marks omitted).

740

WAYNE LAW REVIEW

[Vol. 60:687

information but, instead, repeatedly relied on the general

knowledge of the FBI and the investigation as a whole. While
the jury, left in the dark regarding the source of Agent Lucass
information, likely gave him the benefit of the doubt in this
situation, the fair inference is that he was expressing an opinion
informed by all the evidence gleaned by various agents in the
course of the investigation and not limiting himself to his own
personal perceptions. In short, Agent Lucas was called by the
government to testify to the meaning of numerous phone
conversations irrespective of whether his testimony, at points,
was mere speculation or relied on hearsay evidence. Indeed, at
oral argument, the government conceded that Agent Lucas
lacked the first-hand knowledge required to lay a sufficient
foundation for his testimony under Rule 701(a).385
Here, the panel emphasized, there were over 23,000 calls and yet the
jury heard only a small sampling of the calls.386 Thus, the jury had no
way of verifying [Agent Lucass] inferences or of independently
assessing the logical steps he had taken.387 Furthermore, [h]is
testimony consisted of many opinions and conclusions the jury was well
equipped to draw on their own. He effectively spoon-fed his
interpretations of the phone calls and the governments theory of the case
to the jury, interpreting even ordinary English language.388 Agent
Lucass interpreting the recordings for the jury, with an aura of
expertise and authority [of an FBI agent,] raised a strong likelihood the
jury would defer to the agents judgment in contextualizing and
interpreting the accuseds words, rather than hold the government to its
burden of proof.389
Accordingly, the panel concluded that the district court erred in
admitting Lucass interpretations as lay opinion.390 As a fallback
position, the government argued that error was harmless because the
court could have qualified Lucas as an expert under Rule 702 and
admitted his conclusions pursuant to that rule.391
Not so, the panel held, for two reasons. First, as was its conclusion in
evaluating the testimony as lay opinion, Lucas was in no better position
than the jury to interpret the meaning of words and phrases; thus the
385.
386.
387.
388.
389.
390.
391.

Id. at 59697 (citations omitted).

Id. at 597.
Id.
Id. (internal quotation marks omitted).
Id. at 599.
Id.
Id.

2015]

EVIDENCE

741

government failed to establish, in the words of Rule 702, that Lucass

testimony was helpful to the jury,392 or in the exact words of Rule 702,
that it w[ould] help the trier of fact to understand the evidence or to
determine a fact in issue.393 Second, the panel explained, it is not clear
what expert methodology he relied on to form his opinions (outside of
his expertise on street slang and drug terms, which had already been
granted), and thus the government failed to show that its testimony met
Rule 702s requirement that it be the product of reliable principles and
methods . . . reliably applied . . . to the facts of the case.394 Concluding
that the district courts errors were not harmless, the Sixth Circuit
vacated the defendants conviction and sentence, and remanded the case
for a new trial.395
C. Expert Opinion on the Presence of Gunshot Residue on a Subjects
Hands
The fact that [gunshot-residue] testing will not determine whether an
individual fired a gun, was present when a gun was fired by someone
else, or was merely in an environment in which [gunshot residue]
existed does not render expert testimony in this area inadmissible for
purposes of a Rule 702 analysis, the Sixth Circuit recently held in United
States v. Stafford.396 Furthermore, whether the government uses proper
evidence-gathering techniques in obtaining gunshot residue from a
subjects hands go[es] to the weight of [such] gunshot-residue evidence,
not its admissibility . . . .397
Joe Figula, an Elyria, Ohio police officer, was patrolling the area
near one of the citys nightclubs in the early-morning hours of November
21, 2010, when he heard a gunshot.398 After stopping near the
intersection of Kerstetter Way and Broad Street, Figula observed a man
wearing jeans and a dark zip-up sweatshirt with white lettering on the
back fire two more gunshots. One of these rounds was later found to
have struck the passenger window of a bystanders automobile.399
After he saw the subject run down an alley, Figula drove his car to
the parking lot of a McDonalds restaurant, where, as he expected, a man

392.
393.
394.
395.
396.
397.
398.
399.

Id. at 600.
FED. R. EVID. 702.
Freeman, 730 F.3d at 600 (citing FED. R. EVID. 702).
Id.
721 F.3d 380, 39394 (6th Cir. 2013).
Id. at 395 (emphasis added).
Id. at 387.
Id.

742

WAYNE LAW REVIEW

[Vol. 60:687

emerged.400 The man was wearing the same clothing as the shooter he
had seen shortly before, and [a]s Figula attempted to follow [Akeem]
Stafford in his car, Stafford looked back and made visual contact with
Figula by looking right at him.401 Stafford then ran out of the
McDonalds lot and in the direction of a nearby bank.402 The officer
drove in the banks direction and briefly spoke with the passengers of the
vehicle who believed someone had been shooting at them.403
Figula searched the area surrounding the bank and found Stafford
lying face down, wedged between the back of the building and a large
green exterior power unit.404 Backup officers assisted Figula in
detaining the defendant, who was resistant.405
The Sixth Circuit panel then described the officers actions in
locating a weapon they attributed to Stafford:
After removing Stafford from between the wall and the power
unit, the officers noted that Stafford was not carrying a firearm.
Figula organized a search for the weapon, retracing Staffords
movements backwards from behind First Merit Bank to the
Tremont Street alley near Uncle Vics nightclub. After the initial
walkthrough yielded no results, Figula continued down the alley
back towards Kerstetter Way and Uncle Vics nightclub. Figula
found two spent .45-caliber shell casings on the ground near the
entrance of the alley from Kerstetter Way. On the arrival of the
evidence technicians, a third shell casing was recovered and the
search for the missing firearm resumed. The firearm, a .45caliber semiautomatic handgun, was eventually recovered from
under a staircase in the Tremont Street alley behind Moss
Steakhouse. Figula noted that the guns magazine was partially
ejected and a live round was visible in its barrel. A total of six
live rounds of ammunition were recovered from the gun. Figula
also noted that the gun was scuffed, indicating the gun may have
been thrown and struck the cinder-block wall adjacent to where
the gun was found.406
Subsequent police ballistic tests confirmed that the gun Elryia police
discovered during their search was the same gun that fired the shell
400.
401.
402.
403.
404.
405.
406.

Id.
Id.
Id.
Id. at 387.
Id.
Id.
Id. at 38788.

2015]

EVIDENCE

743

casings Figula located in the alley.407 Other tests confirmed that it was
the same gun that had fired a bullet that had broken the window of a
bystanders vehicle during the time of the shooting.408
After his arrest, Elyria police swabbed the defendants hands for
gunshot residue, and [s]ubsequent laboratory testing determined the
presence of the elements of gunshot residue on Staffords left hand.409 A
federal jury sitting in Cleveland found the defendant guilty of being a
felon in possession of a firearm and ammunition.410
On appeal, Stafford argued that expert testimony by government
witness Robert Lewis as to the discovery of gunshot residue was
insufficiently reliable for the purpose of a Rule 702/Daubert analysis (he
did not argue lack of foundation for the other Rule 702 requirements).411
Unfortunately, the Sixth Circuits opinion is unclear as to precisely
what Lewiss opinions and conclusions were. From the context, I surmise
that Lewis testified that the presence of five residue particles on
Staffords hand was consistent with him having recently discharged a
firearm.412
The Sixth Circuit panelU.S. District Judge Jon P. McCalla, writing
for himself and U.S. Circuit Judges Danny J. Boggs and Helene N.
White413dispensed with Staffords argument that Lewiss testimony
was unreliable, observing that [t]o determine the testimonys reliability,
the court does not determine whether [the opinion] is correct, but rather
[determines] whether it rests upon a reliable foundation.414 It concurred
with the district courts conclusion that the defendants objection to
Lewiss testimony went to the weight of his conclusions, and not their
admissibility, approvingly quoting the district judges statement to
Staffords counsel during trial:
I am allowing the government to put [the experts testimony] in.
But given that your own expert is going to say it is possible that
he has got those two traces either because he was right near a
shooter, [was] a shooter of a gun[,] or that he came into contact

407. Id. at 388.

408. Id.
409. Id.
410. Id. at 389.
411. Id. at 39394.
412. See id. at 394.
413. Id. at 386. McCalla, of the Western District of Tennessee, sat by designation on
the Sixth Circuit panel. Id.
414. Id. at 39394 (quoting In re Scrap Metal Antitrust Litig., 527 F.3d 517, 52930
(6th Cir. 2008)).

744

WAYNE LAW REVIEW

[Vol. 60:687

with residue, I am permitting the defense to point that out. The

two go together.415
Vigorous cross-examination[,] the panel observed, [is a]
traditional and appropriate means of attacking shaky but admissible
evidence.416
The second ground for Staffords reliability objection was that
[t]here is no consensus in the discipline as to how many particles . . .
must be identified in order to report an item of evidence as positive for
[gunshot residue].417 The panel, rejecting this argument, observed that
an FBI document Stafford cited in his appellate brief reported that
[m]ost experts felt that even one particle is enough for a positive
result.418 It also noted that the defense did not object when the district
judge stated that the Defendant is not disputing he had gunshot residue
on his hands.419 In light of this apparent concession (which contradicted
his position on appeal), and the defenses citation to authority that
supported the governments position, the appellate panel concluded the
district court did not abuse its discretion in admitting Lewiss testimony
pursuant to Rule 702.420
The panel also overruled Staffords argument that the likelihood of
Staffords hands becoming contaminated prior to the test mandated the
courts exclusion of the test results. The court observed that:
[t]he trial record indicates that the officers, in conducting
Staffords arrest: did not bag his hands; could have transferred
gunshot residue to Staffords hands from handling their own
weapons, from the backseat of the police car, or from the
booking area of the Elyria Police Department; and did not swab
Staffords hands until after he had been booked. These
arguments, while potentially valid as to the accuracy of the test
and the conclusions to be drawn from it, do not relate to the
tests reliability or the reliability of the expert testimony.421

415. Id.
416. Id. (internal quotation marks omitted) (quoting Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 596 (1993)).
417. Id. (internal quotation marks omitted).
418. Id. (internal quotation marks omitted).
419. Id.
420. Id. In any event, general consensus in the field is no longer a requirement of
expert testimony. See Daubert, 509 U.S. at 59596.
421. Stafford, 721 F.3d at 395.

2015]

EVIDENCE

745

As a fallback argument, the defendant argued that because Lewiss

testimony was unreliable, whatever probative value it had did not
outweigh its potential for unfair prejudice, such that Rule 403 mandated
its exclusion.422 The panel noted that the defense cross-examined the
Governments expert extensively on this very pointthat there can be
inadvertent transfer of gunshot residue resulting in contamination.423 It
repeated its conclusion that the defenses objection went to the
testimonys weight and not its admissibility.424 The presence of residue
on Staffords hands, from whatever source, was circumstantial evidence
that he possessed a firearm, it observed, and [t]he admission of such
circumstantial evidence need not remove every hypothesis but guilt.425
Accordingly, the panel affirmed the defendants conviction and sentence,
for this and other reasons.426
D. Expert Opinion in Medical-Malpractice Actions as to a Physicians
Breach of a Duty of Care
In Michigan, the legislature has enacted statutory foundational
requirements for experts testifying in medical-malpractice actions,
beyond those of Rule 702 and Daubert.427 The requirements differ
depending on whether the defendant is a general practitioner or a
specialist, and focus on the witnesss own experience in the same health
profession, the same specialty, and the amount of time the witness
herself spends in practice and/or educational instruction.428 In
determining whether to qualify an expert witness in such cases, the trial
court:
shall, at a minimum, evaluate all of the following:
(a) The educational and professional training of the
expert witness.
(b) The area of specialization of the expert witness.

422.
423.
424.
425.
426.
427.
428.

Id. at 39495.
Id.
Id. at 395.
Id. at 394 (quoting United States v. Ingrao, 844 F.2d 314, 315 (6th Cir. 1988)).
Id. at 403.
MICH. COMP. LAWS ANN. 600.2169 (West 2015).
Id.

746

WAYNE LAW REVIEW

[Vol. 60:687

(c) The length of time the expert witness has been

engaged in the active clinical practice or instruction of
the health profession or the specialty.
(d) The relevancy of the expert witnesss testimony.429
In the Survey-period case of Albro v. Drayer, a unanimous panel of
the Michigan Court of Appeals clarified that, when the opinion turns on
the defendants performance of a specific procedure, the experts need not
be[] exactly as knowledgeable as a defendant[.]430 Rather, the nature of
the procedure should be within the general ambit of defendants
experts fields of expertise.431
In Albro, plaintiff Lisa Albro went to ankle-specialist Steven Drayer
for ankle surgery.432 The surgery was unsuccessful, and subsequent
corrective surgeries failed to restore full functionality.433 Albro
contended that the Chrisman-Snook procedure the defendant
performed was inappropriate for her situation, and that Drayer performed
the procedure improperly.434
Plaintiffs subsequent primary treating physician opined that the
performance of the Chrisman-Snook procedure had been
inappropriate because plaintiff had not needed surgery in the first
place and the Chrisman-Snook procedure was riskier and more
invasive than the Brostrm procedure. However, he testified that
other than placing a drill hole too low, defendant had technically
performed the procedure correctly. Defendant presented several
expert witnesses, all of whom stated that they would have
performed a Brostrm procedure and that they each had little or
no personal experience with the Chrisman-Snook procedure.
However, they stated that they were familiar with the kinds of
techniques used in both procedures and that they were familiar
with the Chrisman-Snook procedure even if they did not
personally perform it. Defendants experts opined that
defendants surgery, presurgery workup, and postsurgery care

429. Id. 600.2169(2).

430. Albro v. Drayer, 303 Mich. App. 758, 763, 846 N.W.2d 70, 73 (2014).
431. Id. at 763, 846 N.W.2d at 73 (citing Gilbert v. DaimlerChrysler Corp., 470 Mich.
749, 789, 685 N.W.2d 391, 413 (2004)).
432. Id. at 759, 846 N.W.2d at 71.
433. Id.
434. Id.

2015]

EVIDENCE

747

had not been inappropriate despite the fact that the surgery failed
and plaintiff suffered a serious infection.435
At the conclusion of trial, an Ingham County jury returned a verdict
of no cause of action for the plaintiff.436 On appeal, the plaintiff
contended that the trial court should not have qualified the defendants
experts, because they lacked familiarity with the Chrisman-Snook
procedure.437
In commencing its analysis, a unanimous panel of the appellate court
observed that, while [a]n expert who lacks knowledge in the field at
issue cannot assist the trier of fact[,]438 mere [g]aps or weaknesses in
the witness expertise are a fit subject for cross-examination, and go to
the weight of his testimony, not its admissibility.439
In a per curiam opinion, the panel of William C. Whitbeck, Kurtis T.
Wilder and Amy Ronayne Krause440 observed:
Clearly, none of defendants experts were as familiar with the
Chrisman-Snook procedure as was defendant. However, all of
defendants experts performed ankle reconstructions regularly
and were experts in doing so. Significantly, though not
performing it, all of them were familiar with the ChrismanSnook procedure. All of them had, in addition, either authored at
least one article or textbook or lectured on ankle reconstruction
and had discussed the Chrisman-Snook procedure in the process.
Ankle reconstructive surgeries of any sort were clearly within
the general ambit of defendants experts fields of expertise.
There was no evidence that the state of the art has changed
significantly since any of the experts learned or last performed
the Chrisman-Snook procedure, in contrast to the situation in
Swanek v Hutzel Hosp., 115 Mich. App. 254, 258; 320 N.W.2d
234 (1982). Admission of expert testimony simply does not
depend on an experts being exactly as knowledgeable as a
defendant in a medical malpractice action. The trial court did not
abuse its discretion by finding that defendants experts were, at a
435. Id. at 760, 846 N.W.2d at 7172.
436. Id. at 75859, 846 N.W.2d at 7071.
437. Id. at 761, 846 N.W.2d at 72.
438. Id. at 762, 846 N.W.2d at 73 (internal quotation marks omitted) (quoting Gilbert
v. DiamlerChrysler Corp., 470 Mich. 749, 789, 685 N.W.2d 391, 413 (2004)).
439. Id. (emphasis added) (internal quotations marks omitted) (quoting Wischmeyer v.
Schanz, 449 Mich. 469, 480, 536 N.W.2d 760 (1995); People v. Gambrell, 429 Mich.
401, 408, 415 N.W.2d 202, 205 (1987)).
440. Id. at 766, 846 N.W.2d at 74.

748

WAYNE LAW REVIEW

[Vol. 60:687

minimum, sufficiently knowledgeable, trained, or educated to

form an expert opinion under MRE 702. Likewise, none of the
considerations under MCL 600.2169(2) demand that the experts
be excluded.441
Accordingly, the appellate panel affirmed the jurys verdict, for this
and other reasons.442
E. Appointment and Payment of Expert Witnesses for Indigent Criminal
Defendants
Under Michigan law, indigent criminal defendants may petition the
trial court to issue subpoenas, serve subpoenas, and pay witnesses whose
testimony is material to their defense at trial.443 In order to secure
funds to pay expert witnesses, [i]t is not enough for the [indigent]
defendant to show a mere possibility of assistance from the requested
expert[,] rather he or she must show that expert testimony would likely
benefit the defense . . . .444
In McDonald, a case I first discuss in Part VI.A.1, the defense
petitioned the trial court for funds to pay a DNA expert who, the defense
proffered, would testify that swabbing of the gun yielded a major DNA
donor who was not the defendant.445 The prosecutions own DNA expert,
however, had already conceded (as the appellate panel noted) that there
were at least three possible DNA donors, and she could neither include
nor exclude McDonald from the list of sources.446 Moreover, it [wa]s
worth noting that defendant asserted that his expert could only exclude
defendant as the major donor in connection with the DNA found on the
gun, thereby indicating that his own expert could not altogether exclude
him as a donor.447 Accordingly, Chief Judge William B. Murphy,
writing for himself and Judges E. Thomas Fitzgerald and Stephen L.
Borrello,448 concluded the defendant failed to establish the expert would
likely benefit[] his defense.449 Even assuming the trial court erred, such
error was harmless in light of overwhelming direct and circumstantial
441. Id. at 76263, 846 N.W.2d at 73 (citations omitted).
442. Id. at 766, 846 N.W.2d at 74.
443. MICH. COMP. LAWS ANN. 775.15 (West 2015).
444. People v. McDonald, 303 Mich. App. 424, 435, 844 N.W.2d 168, 175 (2013)
(quoting People v. Carnicom, 272 Mich. App. 614, 616, 727 N.W.2d 399, 401 (2006)).
445. Id. at 435, 844 N.W.2d at 175.
446. Id. at 435, 844 N.W.2d at 17576.
447. Id. at 435, 844 N.W.2d at 175.
448. Id. at 42526, 844 N.W.2d at 175.
449. Id. at 435, 844 N.W.2d at 175.

2015]

EVIDENCE

749

evidence of guilt.450 The panel affirmed the defendants conviction, for

this and other reasons.451
VIII. RULES 80107: HEARSAY, HEARSAY EXCEPTIONS AND
CONFRONTATION CLAUSE (CRAWFORD) ISSUES
Hearsay is an out-of-court statement offered in evidence to prove
the truth of the matter asserted.452 In plainer English, the hearsay rule
bars testimony that something is a fact because some person made an
out-of-court statement that it is a fact (We know the sky was blue on
Tuesday because declarant said it was blue.). The hearsay rule does not
bar a party from offering an out-of-court statement for a purpose other
than establishing the truth of the statement, as [w]here a witness testifies
that a statement was made, rather than about the truth of the statement
itself, the testimony is not hearsay.453 (I know declarant was alive on
Tuesday because I heard him say that the sky was blue.)
Key to the hearsay rule is that a statement is only hearsay if a party
offers it to prove the truth of the matter asserted.454 In other words, the
partys purpose in offering the statement is the critical factor in
determining whether the statement is hearsay. I say this because there is
usually no dispute that the statement is an out-of-court statement or that
it is offered in evidence; rather, the dispute revolves around whether it
is to prove the truth of the matter asserted. (For some charts with
examples of hearsay situations versus non-hearsay situations, see last
years Survey article on evidence.455)

450. Id. at 436, 844 N.W.2d at 176.

451. Id. at 43940, 844 N.W.2d at 17778.
452. MICH. R. EVID. 801(c). The federal rules clarify that hearsay is an out-of-court
statement a party offers in evidence to prove the truth of the matter asserted in the
statement. FED. R. EVID. 801(c)(2) (emphasis added). Much of the introductory material
in this section is virtually identical, if not entirely identical, to the corresponding part of
last years Survey article on evidence. See Meizlish, supra note 3, at 1155 56.
453. People v. Harris, 201 Mich. App. 147, 151, 505 N.W.2d 889, 891 (1993) (citing
People v. Sanford, 402 Mich. 460, 491, 265 N.W.2d 1, 13 (1978)).
454. MICH. R. EVID. 801(c).
455. Meizlish, supra note 3, at 115765.

750

WAYNE LAW REVIEW

[Vol. 60:687

A. Hearsay Situations Generally

1. Police Detectives Out-of-Court Statements During Recorded
Interviews with Criminal Defendants in Which the Detectives
Comment on the Alleged Victims Credibility
As I noted in Part VII.B, courts are increasingly discouraging
witnesses from testifying as to matters that are within the jurys
charge.456 A witness, for example, may not express an opinion on the
defendants guilt or innocence of the charged offense[.] Similarly,
because determining witness credibility is the jurys responsibility,457 it
is improper for a witness or an expert to comment or provide an opinion
on the credibility of another person while testifying at trial.458
In many casescriminal and civila party will often introduce its
opponents statements as evidence, pursuant to the hearsay exclusion for
party-opponent admissions in Rule 801.459 In criminal cases, these partyopponent statements may result from police officers interviews of the
accusedsuch as when the police make a statement to the defendant in
order to elicit a response (e.g., Eyewitnesses have identified you as the
shooter.). Courts are struggling with the means by which to admit the
defendants inculpatory statements without the jury considering the
police officers out-of-court statements (during the interview) for their
truth.460 The officers statements often include hearsay, but, on the other
hand, when a party offers an out-of-court statement to show the effect
of the statement on the hearer, 461 and the hearer could arguably
include the defendant-interviewee, [the statement] does not constitute
hearsay.462
The Michigan Supreme Court weighed in on the issue in People v.
Musser by crafting a rule of law that encourages trial courts to redact
police officers out-of-court statements in recorded interviews in which

456. People v. Fomby, 300 Mich. App. 46, 4851, 831 N.W.2d 887, 88891 (2013).
457. Id. at 53, 831 N.W.2d at 891 (quoting People v. Bragdon, 142 Mich. App. 199,
369 N.W.2d 209 (1985)) (internal quotation marks omitted).
458. People v. Musser, 494 Mich. 337, 349, 835 N.W.2d 319, 327 (2013) (citing
People v. Buckey, 424 Mich. 1, 17, 378 N.W.2d 432, 439 (1985)).
459. FED. R. EVID. 801(d)(2). The corresponding Michigan rule is substantially similar.
See MICH. R. EVID. 801(d)(2).
460. See infra notes 46164 and accompanying text.
461. People v. Eggleston, 148 Mich. App. 494, 502, 384 N.W.2d 811, 814 (1986)
(citing People v. Lee, 391 Mich. 618, 642, 218 N.W.2d 655, 666 (1974)); see also Gover
v. Perry, 698 F.3d 295, 306 (6th Cir. 2012) (recognizing effect-on-the-listener statements
as non-hearsay).
462. Eggleston, 148 Mich. App. at 502, 384 N.W.2d at 814.

2015]

EVIDENCE

751

they comment on another witnesss (and/or the victims) credibility.463

The court framed the issue as follows:
[T]his case asks this Court to consider whether the rule
precluding a witness from commenting on another persons
credibility at trial is triggered by an interrogators statements that
are offered to provide context to a defendants statements, rather
than offered to prove the truth of the matter asserted, or whether
the interrogators statements that actually provide context to a
defendants statements have some probative value, unlike
statements commenting on the credibility of another person that
are offered for their truth.464
The supreme court, in a unanimous opinion by Justice Michael F.
Cavanagh,465 recognized a split of authority on this issue.466 On the one
hand, it noted, allowing the prosecution to introduce the officers
vouching statements on an audio/video recording would frustrate the
policy underlying the prohibition of police testimony on the witness
stand vouching for another witnesss credibility.467 The logic behind this
approach is that, in either case, the jury hears the police officers opinion
and clothing the opinion in the garb of an interviewing technique does
not help.468 The alternative view is that because the [officers]
comments are an interrogation technique and are not made for the
purpose of expressing an opinion as to [the] defendants credibility or
veracity at trial, the statements are admissible but only . . . to the extent
that they provide context to a relevant answer by the [defendant].469
Rejecting a bright-line rule, the high court appeared to adopt a
modified form of the latter approach:
[T]he interrogators statements are only admissible to the extent
that the proponent of the evidence establishes that the
interrogators statements are relevant to their proffered purpose.
463. Musser, 494 Mich. 337, 35154, 835 N.W.2d 319, 32830 (2013).
464. Id. at 351, 835 N.W.2d at 32829.
465. Id. at 338, 835 N.W.2d at 322.
466. Id. at 35152, 835 N.W.2d at 329.
467. Id. at 35152, 835 N.W.2d at 329 (citing State v. Jones, 68 P.3d 1153, 1155
(Wash. Ct. App. 2003)).
468. Id. at 352, 835 N.W.2d at 329 (quoting Jones, 68 P.3d at 1155) (citing State v.
Demery, 30 P.3d 1278, 128586 (Wash. 2001) (Alexander, C.J., concurring); State v.
Elnicki, 105 P.3d 1222, 1229 (Kan. 2005)).
469. Id. at 35253, 835 N.W.2d at 329 (quoting State v. Castaneda, 715 S.E.2d 290,
295 (N.C. Ct. App. 2011)).

752

WAYNE LAW REVIEW

[Vol. 60:687

Even if relevant, the interrogators statements may be excluded

under MRE 403 and, upon request, must be restricted [via a
limiting instruction] to their proper scope under MRE 105.470
The court added, [T]rial courts must vigilantly weed out otherwise
inadmissible statements that are not necessary to accomplish their
proffered purpose.471 To hold otherwise would allow interrogations
laced with otherwise inadmissible content to be presented to the jury
disguised as context.472
In Musser, the eleven-year-old complainant testified that, in the
spring of 2009, she and her family were visiting the residence of John M.
Musser and his family to watch a hockey game.473 The victim left the
main group and tried to fall asleep on a couch.474 For most of the time,
the only other person in the same room was a sleeping child.475
The complainant testified that while she was feigning sleeping,
defendant put his hands on her inner thighs and later touched her
breasts while covering her with a blanket. The complainant also
stated that defendant put his thumb under the waistband of her
pants, which was near her underwear line. According to the
complainant, after defendant left, she went downstairs and asked
her parents if they could leave.476
The victim did not report the incident for about a year.477 While the
families continued to socialize, the victims mother testified that her
daughter subsequently lost interest in visiting the defendants home.478 In
2010, the victim revealed the incident to her mother, who took her
daughter to the Kent County Sheriffs Department to report the
incident.479 Detectives interviewed the defendant the same day, where he
gave the following version of events:
[The] defendant denied any improper contact with the
complainant, but remembered coming upstairs to get a drink
470.
471.
472.
473.
474.
475.
476.
477.
478.
479.

Id. at 35354, 835 N.W.2d at 330 (citations omitted).

Id. at 354, 835 N.W.2d at 330.
Id. (quoting People v. Crawford, 458 Mich. 376, 388, 582 N.W.2d 785 (1998)).
Id. at 340, 835 N.W.2d at 32223.
Id. at 340, 835 N.W.2d at 323.
Id.
Id. at 34041, 835 N.W.2d at 323.
Id. at 341, 835 N.W.2d at 323.
Id.
Id. at 34142, 835 N.W.2d at 323.

2015]

EVIDENCE

while the complainant and her family were watching a hockey

game. Defendant stated that he saw the complainant asleep,
hugged her, and gave her a kiss on her cheek or forehead.
Defendant acknowledged that he had been drinking that night,
that the complainant seemed vulnerable because she appeared to
be asleep, and that his hands accidentally touched the skin of the
complainants back when he put his arms around her. Defendant,
however, explained that none of his actions were sexual, and he
did not touch the complainant inappropriately or in the places
that she claimed that she was touched. Defendant stated that he
and the complainant had always been affectionate, and the
complainant had often greeted defendant with a hug and a kiss
when they saw each other.480
The exchange in question proceeded as follows:
DETECTIVE [Edward] KOLAKOWSKI: Kids have a hard time
lying about this stuff because they dont even want to talk about
it, let alone they dont even want to talk about it to a mere
fucking stranger.
DETECTIVE [William] HEFFRON: Especially a 12 year old
girl.
DETECTIVE KOLAKOWSKI: And she tells me what
happened? And she tells our counselors what happened? And
these areandand with these interviews, too, its not just a
interview of, tell me what happened, . . . theyre . . . done
with . . . Michigan adopted, basically, a forensic interview
protocol that theres a special way that kids have to be
interviewed. Theyre not interviewed like I can interview you, all
right? . . . [Y]ou know what? If you cant do it for yourself, do it
for your own little girl . . . . Make sure she knows that men have
to answer to the truth. And make sure that [the complainant]
knows that, you know what? [Y]eah, someone fucked up . . . .
Shes having a devastating time. She loves you. She cares about
you. She cares about your family. You want to know what her
concern was? You want to know why she waited to tell? Do you
want me to tell you?
[DEFENDANT]: Sure.
480. Id. at 34142, 835 N.W.2d at 32324.

753

754

WAYNE LAW REVIEW

[Vol. 60:687

DETECTIVE KOLAKOWSKI: Ill tell you . . . .

***
DETECTIVE HEFFRON: You know theres a big difference
when we interview 4, 5, 6 year olds and when they get up around
10, 11, 12, 13. Theres a big difference. Four, five, six year old
kids, theyre easy to manipulate by parents, aunts, uncles
theyre easy to manipulate. Theyre terrible actors. Theyre
terrible. When kids start getting a little bit older theyre better
actors. Theyretheyre older, theyre seeing more. Shes 12.
The big issue here is if she wanted to get you in troubleshes
smart enough, and shes onlyand shes 12if, for whatever
reason, she wanted to get you in trouble she wouldshe
would
[DEFENDANT]: That she would say that I fucked her?
DETECTIVE HEFFRON: Absolutely.
[DEFENDANT]: Yeah.
DETECTIVE HEFFRON: Absolutely. He put his hand down
my pants, his finger was in my vagina all of this his mouth was
on my breastthats what they would do if theyre gonna lie to
get somebody in trouble, . . . an older kid like that. Little kids,
they neverve [sic] been exposed to that stuff. They dont know.
But its pretty credible when she tells us, Hey, he touched . . .
me here and he put his hand on my breasts and . . . his hand
started going down my pants but he couldnt. Thats pretty
credible; thats pretty detailed. Again, if theres no reason for her
to make this crap up, why would she say it? This is the last
thing . . . she wanted to do was talk to a total stranger about
something like this. Why? Why is she gonna put herself through
that if it didnt happen? We cant find anything. Kids dont lie
about this stuff. They lie about their homework being done; they
lie about, yep, I did the dishes when they didnt . . . they lie
about yeah, we were in bed by 10:00. They dont lie about this
stuff if maybe shes in trouble for something. This is not the kind
of stuff that kids make up to try to get out of some trouble that
theyre in. Thats why this is so disturbing. . . . And again, if
shes talking about his hand was on my breast, shes not gonna
make that crap up. She just isnt. And this is your opportunity for

2015]

EVIDENCE

755

her to eventually see that you made a mistake, youre human,

and you want to get this worked out so she has the least amount
of stress/trauma, whatever, but that she gets the . . . feeling that
I love the man, the family. He made a mistake and someday as
Im older[]because shes always gonna remember thisthis
didnt happen when she was 2 or 3 years oldthey dont
remember that stuff. Shes always gonna remember this. At
some point she will be able to accept, Hey, this is what
happened. We all make mistakes. He made a mistake. But
youre gonna have to start by being upfront. And for you to sit
here and say that well, yep, shes telling the truth about this, but
shes lying about that, . . . shes gonna have this report. Shes
gonna know exactly what you said, and whatever . . . message
you want to send her thats . . . up to you. We cant force you.
But if shes saying you touched her breastsI wasnt there for
the interview [of the complainant] but [Kolakowski, who has]
done a lot of interviewing, said, Bill, theres no question this
happened and the stuff that Im aware of he probably didwe
just need to know why. Was it alcohol? Was itI dont know
what your sex life has been at home, but all we want to know is
why. Were you ever molested as a child?
[DEFENDANT]: No.
DETECTIVE HEFFRON: Help us out here.
[DEFENDANT]: You asked a lot of different questions right
there. I dont knowII dont know what motivated me. I
think I explained it, I was just trying to give her a peck. I dont
know where this touching of the breast is coming from.481
Prior to the prosecutions presenting a recording of the above
interview, the detective testified as to the forensic protocol for
interviewing victims of child molestation.482 The most important concern
during such interviews, he explained, is that the child understands the
difference between telling the truth and lying.483 He had conducted
hundreds of such interviews and had complied with the protocol in
interviewing the victim in this case.484
481.
482.
483.
484.

Id. at 34345, 835 N.W.2d 32425 (alteration in original).

Id. at 34546, 835 N.W.2d at 32526.
Id. at 346, 835 N.W.2d at 32526.
Id. at 346, 835 N.W.2d at 326.

756

WAYNE LAW REVIEW

[Vol. 60:687

The defense argued that the court should have redacted the interview
to exclude most of the detectives statements as they vouched for the
victims credibility.485 The prosecution countered that it was not offering
the detectives statements for a hearsay purpose (to prove the assertions
thereinthat the victim was probably telling the truth), but to establish
the context of the defendants incriminating response.486 The defense
responded that the detectives statements were not relevant to
contextualizing the defendants responses.487
The court observed that in many child molestation cases, witness
credibility is often the critical factor in the fact-finders determination,
and a jury will often [be] looking to hang its hat on the testimony of
witnesses it views as impartial.488 Hence, the court was concerned with
vouching statements used by detectives.489 Applying the principles
appearing above, the court concluded that most of the detectives
statements, save for the last statement by Heffron, were not necessary to
contextualize the defendants response.490 The court remarked that
Heffrons second set of statements should have appeared as follows:
DETECTIVE HEFFRON: You know theres a big difference
when we interview 4, 5, 6 year olds and when they get up around
10, 11, 12, 13. Theres a big difference. Four, five, six year old
kids, theyre easy to manipulate by parents, aunts, uncles theyre
easy to manipulate. Theyre terrible actors. Theyre terrible.
When kids start getting a little bit older theyre better actors.
Theyretheyre older, theyre seeing more. Shes 12. The big
issue here is if she wanted to get you in troubleshes smart
enough, and shes only and shes 12if, for whatever reason,
she wanted to get you in trouble she wouldshe would
[DEFENDANT]: That she would say that I fucked her?491
The trial court should have redacted Heffrons final exchange
directed at the defendant to read as follows:

485. Id. at 35051, 835 N.W.2d at 328.

486. Id. at 350, 835 N.W.2d at 328.
487. Id. at 351, 835 N.W.2d at 328.
488. Id. at 35758, 835 N.W.2d at 332 (quoting People v. Peterson, 450 Mich. 349,
376, 537 N.W.2d 857, 868 (1995)).
489. Id. at 353, 835 N.W.2d at 329.
490. Id. at 35960, 835 N.W.2d at 333.
491. Id. at 360 n.18, 835 N.W.2d at 333 n.18.

2015]

EVIDENCE

DETECTIVE HEFFRON: Absolutely. He put his hand down

my pants, his finger was in my vagina all of this his mouth was
on my breast thats what they would do if theyre gonna lie to
get somebody in trouble, . . . an older kid like that. Little kids,
they neverve [sic] been exposed to that stuff. They dont know.
But its pretty credible when she tells us, Hey, he touched . . .
me here and he put his hand on my breasts and . . . his hand
started going down my pants but he couldnt. Thats pretty
credible; thats pretty detailed. Again, if theres no reason for her
to make this crap up, why would she say it? This is the last
thing . . . she wanted to do was talk to a total stranger about
something like this. Why? Why is she gonna put herself through
that if it didnt happen? We cant find anything. Kids dont lie
about this stuff. [T]hey lie about their homework being done;
they lie about, yep, I did the dishes when they didnt . . .
[T]hey lie about yeah, we were in bed by 10:00. They dont lie
about this stuff if maybe shes in trouble for something. This is
not the kind of stuff that kids make up to try to get out of some
trouble that theyre in. Thats why this is so disturbing. . . . And
again, if shes talking about his hand was on my breast, shes
not gonna make that crap up. She just isnt. And this is your
opportunity for her to eventually see that you made a mistake,
youre human, and you want to get this worked out so she has
the least amount of stress/trauma, whatever, but that she gets
the . . . feeling that I love the man, the family. He made a
mistake and someday as Im olderbecause shes always
gonna remember thisthis didnt happen when she was 2 or 3
years oldthey dont remember that stuff. Shes always gonna
remember this. At some point she will be able to accept, Hey,
this is what happened. We all make mistakes. He made a
mistake. But youre gonna have to start by being upfront. And
for you to sit here and say that well, yep, shes telling the truth
about this, but shes lying about that, . . . shes gonna have this
report. Shes gonna know exactly what you said, and
whatever . . . message you want to send her thats . . . up to you.
We cant force you. But if shes saying you touched her
breastsI wasnt there for the interview [of the complainant] but
[Kolakowski, who has] done a lot of interviewing, said, Bill,
theres no question this happened and the stuff that Im aware of
he probably did we just need to know why. Was it alcohol? Was
itI dont know what your sex life has been at home, but all we
want to know is why. Were you ever molested as a child?

757

758

WAYNE LAW REVIEW

[Vol. 60:687

[DEFENDANT]: No.
DETECTIVE HEFFRON: Help us out here.
[DEFENDANT]: You asked a lot of different questions right
there. I dont knowII dont know what motivated me. I
think I explained it, I was just trying to give her a peck. I dont
know where this touching of the breast is coming from.492
Justice Cavanagh singled out various statements that were
inadmissible, such as the following statement by Kolakowski: Kids
have a hard time lying about this stuff because they dont even want to
talk about it, let alone they dont even want to talk about it to a mere
fucking stranger.493 Even if that and similar statements were relevant,
Justice Cavanagh remarked, the danger of unfair prejudice they created
substantially outweighed whatever probative value they had.494 In
conjunction with the jury hearing Kolakowskis testimony that a child of
the victims age knew the difference between the truth and a lie, and that
he had conducted hundreds of forensic interviews with similarly
situated children, Kolakowskis recorded out-of-court statements to the
defendant commenting on the victims credibility would heavily
influence a jurys determination as to her credibility, enhancing the
prejudicial effect of his vouching statements.495
The judges limiting instructions were ineffective to focus the jury
only on the recordings proper purpose, as the jury viewed the recording
with the unqualified instruction in mind that the recording was evidence
only to later be informed that all of the recordings contents could not be
considered as such.496
Accordingly, the trial court abused its discretion in admitting the
unredacted statements.497 Because the evidence against the defendant
was not overwhelming (the high court noted the absence of physical
evidence), and because the jurys determination of guilt hinged on
credibility determinations,498 the seven justices vacated the defendants
conviction and remanded the matter to Kent County for a new trial.499

492.
493.
494.
495.
496.
497.
498.
499.

Id. at 361 n.19, 835 N.W.2d at 333 n.19.

Id. at 359 n.17, 835 N.W.2d at 333 n.17.
Id. at 36263, 835 N.W.2d at 334.
Id. at 36263, 835 N.W.2d at 33435.
Id. at 365, 835 N.W.2d at 336.
Id.
Id. at 36364, 835 N.W.2d at 335.
Id. at 36566, 835 N.W.2d at 336.

2015]

EVIDENCE

759

2. Police Testimony as to the Contents of a 911 Tip to Establish the

Basis for Officers Actions
Both federal and state courts are discouraging prosecutors from
eliciting testimony from police officers as to out-of-court statements
from tipsters and informants because the statements usually trigger
hearsay and Confrontation Clause500 concerns. Remember that a
statement is hearsay when offered in evidence to prove the truth of the
matter asserted.501 In Michigan, a statement offered to show why
police officers acted as they did is not hearsay.502 In other words, a
partys purpose in offering the statement is crucial to resolving whether a
statement is hearsay. When the courts conclude the proponents real
purpose in offering the statement is to establish its truth, the hearsay
objection carries greater force.
The Ingham County prosecutor charged Randall Kevin Henry with
four counts of armed robbery for four incidents that occurred in Lansing
in mid-November and early December 2010.503 The victim of the first
robbery, a gas-station clerk, positively identified the defendant and
explained that he remembered the defendant because he encountered
Henry in the gas station on at least five other occasions and [because
he] wore a dark colored ice company uniform.504 Upon entering the gas
station, the defendant asked for a Black & Mild cigar, pulled a gun when
the clerk briefly turned his back and then demanded money.505 A
manager with a local ice delivery company testified that his firm had
previously employed the defendant and that employees wore navy-blue
sweatshirts or T-shirts bearing the companys name.506
The victim of the second robbery, a clerk at the same gas station,
also positively identified the defendant and described a similar ruse
involving the defendants request for a Black & Mild cigar, followed by
the defendant brandishing a gun and demanding money.507 This robbery
occurred a day after the first.508
500. See U.S. CONST. amend. VI.
501. MICH. R. EVID. 801(c); see also FED. R. EVID. 801(c)(2).
502. People v. Henry, 305 Mich. App. 127, 154, 854 N.W.2d 114, 132 (2014) (quoting
People v. Chambers, 277 Mich. App. 1, 11, 742 N.W.2d 610, 616 (2007)) (internal
quotation marks omitted).
503. Id. at 13031, 854 N.W.2d at 12021.
504. People v. Henry, Nos. 306449, 308963, 2013 Mich. App. LEXIS 1978, at *2
(Dec. 5, 2013).
505. Id.
506. Id. at *3.
507. Id. at *34.
508. Id. at *3.

760

WAYNE LAW REVIEW

[Vol. 60:687

Three days after the second robbery, a person the third clerk
identified as the defendant entered the same gas station and remarked,
you know the deal. Give me the money. Hurry up, you have two
seconds.509 Henry did not appear to be carrying a gun, but the clerk
noticed a pair of scissors up his sleeve as he exited the gas station.510
Then, in early December, the victim of the first robbery observed the
defendant return to the same station and laughingly said, you know
what the f____[sic] deal is. [Christopher] Selover testified that as he
handed money to the man, the man reached into his waistline as if he was
going to pull out a gun.511 That same day, a robber visited a
convenience store, walked behind the counter, held a long knife and
demanded clerks open the cash register, and then ran off with the cash,
promising to return.512
The detective in charge of the investigation testified before the jury
that a confidential informant came forward with the defendants
name.513 The defense objected on hearsay grounds, and the prosecution
withdrew the question.514 The trial court did not provide a curative
instruction.515
[Detective Steven] McClean testified that after he formed an
opinion regarding who was responsible for the first two L & L
robberies, he prepared photographic lineups to present to the
victims. The trial court allowed the testimony over defense
counsels hearsay objection on the ground that it was admissible
to show how McClean proceeded with his investigation. During
closing and rebuttal arguments, the prosecutor stated that there
was significant identification evidence beyond that which the
informant provided. Otherwise, the prosecutor did not refer to
the informant.516
On appeal, the defendant argued that the detectives testimony
violated his rights under the Confrontation Clause.517 Considering the
question, a panel of the Michigan Court of Appeals observed that not
509. Id. at *4 (internal quotation marks omitted).
510. Id. at *45.
511. Id. at *5.
512. Id. at *6.
513. Henry, 305 Mich. App. at 151, 854 N.W.2d at 131 (internal quotation marks
omitted).
514. Id.
515. Id.
516. Id. at 152, 854 N.W.2d at 13132.
517. Id. at 151, 854 N.W.2d at 132; see infra Part VIII.F.

2015]

EVIDENCE

761

only did the detective disclose the informants accusation that defendant
was the responsible robber, but that he came to believe that defendant
was responsible for the November 16 and November 17 robberies on the
basis of what the informant said . . . .518 Accordingly, the prosecution
had offered the informant-declarants statements for their truththat the
defendant was the robber because the declarant-informant reported that
he was the robber.519 The court concluded that the statement was
inadmissible as hearsay in violation of the Confrontation Clause but did
not reverse the defendants conviction, because of the strength of the
remaining evidence and because neither the prosecution nor defense
emphasized the informants information in their closing statements.520
The hearsay/confrontation error, in the view of Judge Stephen L.
Borrello, writing for himself and Judge Michael J. Kelly,521 did not affect
the trials outcome.522 Judge Mark L. Boonstra agreed with the analysis
of this question but wrote separately to diverge from the majority on a
separate issue.523
In the Sixth Circuit, police may testify to the contents of an out-ofcourt 911 tip to establish the reasons for their actions (e.g., in responding
to a scene of a crime or stopping a motorist), but only if the basis for the
officers conduct is at issue at trial.524 The court has acknowledged that
background information that explains how law enforcement came to be
involved might not be hearsay because it is offered not for the truth of
the matter asserted, but rather to show why the officers acted as they
did.525
However, in the Tennessee federal case of United States v. Nelson, a
unanimous appellate panel rejected the governments contention that it
introduced the tips contents into evidence for a non-hearsay purpose (to
provide background for the polices activity), concluding that the
prosecution used the tip to persuade the jury that the defendant was the
person the tipster reported as carrying a gun (a hearsay purpose).526
In the early morning of June 15, 2009, Murfreesboro, Tennessee
police officers responded to a 911 tip of a black man wearing a blue
shirt, with a poofy afro, riding a bicycle, [who] was armed with a
518. Henry, 305 Mich. App. at 154, 854 N.W.2d at 13233.
519. Id. at 154, 854 N.W.2d at 133.
520. Id. at 15455, 854 N.W.2d at 133.
521. Id. at 163, 854 N.W.2d at 137.
522. Id. at 155, 16263, 854 N.W.2d at 133, 137.
523. Id. at 163, 854 N.W.2d at 137 (Boonstra, J., concurring).
524. See United States v. Nelson, 725 F.3d 615, 619 (6th Cir. 2013).
525. Id. at 620 (citing United States v. Caver, 470 F.3d 220, 239 (6th Cir. 2006);
United States v. Aguwa, 123 F.3d 418, 421 (6th Cir. 1997)).
526. Id. at 62021 (emphasis added).

762

WAYNE LAW REVIEW

[Vol. 60:687

pistol.527 The first officer to arrive identified a person, Jerry Nelson,

who matched this description and began speaking with him from his
patrol car.528 As a second officer arrived, the first officer exited his
vehicle to speak with the defendant, who shortly thereafter began
bicycling away from the officers.529
Officer [Joshua] Meredith [(the first officer)] shouted at Nelson
to stop, but Nelson kept riding away. Officer [Tommy] Massey
[(the second officer)] still in his squad car and following Nelson
at a distance of between ten and twenty-five feet, observed
Nelson reach into his waistband and throw a large, heavy object,
which Officer Massey believed to be a gun, into nearby bushes.
Officer Massey continued following Nelson across the street to a
parking lot, where Nelson tried to abandon his bicycle and
continue his flight on foot. By this point, additional responding
officers had joined the pursuit, and Nelson was quickly
stopped.530
A search incident to the defendants arrest yielded ammunition in
Nelsons pocket.531 Officers then searched the bush where Massey had
seen Nelson throw the heavy object, and therein they located a gun.532
At trial, the defendant unsuccessfully objected to the officers testimony
as to the contents of the 911 tip on hearsay grounds, and a jury found the
defendant guilty of being a felon in possession of a firearm and
ammunition.533
With minimal explanation as to its reasoning, a unanimous Sixth
Circuit panelJudge John M. Rogers, writing for himself, Judge
Raymond M. Kethledge and U.S. District Judge Paul D. Borman,534
observed that [c]ontrary to the Governments position, the police
officers testimony about the 911 call, in the context of this case, was
effectively offered to prove the truth of the statements made, rather than
to show background.535 The panel explained that:
527. Id. at 618.
528. Id.
529. Id.
530. Id. at 61819.
531. Id. at 619.
532. Id.
533. Id.
534. Id. at 618. Borman, of the U.S. District Court for the Eastern District of Michigan,
sat by designation on the Sixth Circuit panel. Id.
535. Id. at 620. Curiously, the panel did not quote at all the prosecutions opening or
closing statements, or the specific wording of its questioning, to support its conclusion

2015]

EVIDENCE

763

[A] less-detailed statement indicating that the police received a

911 call, without detailing the callers description, would have
avoided the prejudice problem while still ensuring that the jury
was given the minimal background information needed to
understand why the officers behaved as they did. For example,
the officers could have testified that they were responding to an
anonymous complaint of illegal activity in the area, or that they
were responding to a report of a suspicious individual believed to
be dangerous.536
Thus, the panel held, the district court erred in permitting the officers
to testify as to the tips contents.537 The error was not harmless, the panel
explained, because the officers testimony went to the very heart of the
sole disputed issue for the jurys resolution, namely whether Nelson
possessed a gun.538 The Sixth Circuit vacated the defendants two
convictionsfor possession of a gun and ammunitionand remanded
the case to the district court for a new trial.539
B. Party Opponents Statements and Silence
The hearsay rule covers not only oral and written statements, but also
nonverbal conduct of a person, if it is intended by the person as an
that the governments purpose in offering testimony about the 911 tip was to establish
that the defendant was the person carrying the guna hearsay purpose.
The opinion also does not mention any attempt by the prosecution to offer the 911
recording into evidence. Nevertheless, it requires no leap of faith to assume that the
tipster was describing an exciting situation that was occurring contemporaneous with the
call. Almost certainly, then, the callers tip would have fallen within two hearsay
exceptionsas a present-sense impression, see FED. R. EVID. 803(1) ([a] statement
describing or explaining an event or condition, made while or immediately after the
declarant perceived it[]), and as an excited utterance, see FED. R. EVID. 803(2) (A
statement relating to a startling event or condition, made while the declarant was under
the stress of excitement that it caused.).
Furthermore, even if, for whatever reason, the recording was no longer available, the
officers testimony as to the dispatchers relaying of the callers tip would have probably
fallen within a hearsay exception for double hearsaythe first level (the dispatcher
mentioning a recent tip from a third party) constituting a present-sense impression, the
second level (the callers tip), as I stated above, constituting either a present-sense
impression or excited utterance, or both. See FED. R. EVID. 805 (Hearsay within hearsay
is not excluded by the rule against hearsay if each part of the combined statements
conforms with an exception to the rule.). In other words, even if the government had
offered the contents of a tip for a hearsay purpose, this hearsay was probably admissible.
536. Nelson, 725 F.3d at 620.
537. Id.
538. Id. at 62122.
539. Id. at 623.

764

WAYNE LAW REVIEW

[Vol. 60:687

assertion.540 What does that mean for silence in response to a question

or accusation? Many years ago, the Michigan Supreme Court held, in
People v. Bigge, by way of a broad proposition, that a criminal defendant
need not:
cock his ear to hear every damaging allegation against him and,
if not denied by him, have the statement and his silence accepted
as evidence of guilt. There can be no such thing as confession of
guilt by silence in or out of court. The unanswered allegation by
another of the guilt of a defendant is no confession of guilt on
the part of a defendant. Defendant, if he heard the statement, was
not morally or legally called upon [to make the] denial or suffer
his failure to do so to stand as evidence of his guilt.541
In Bigge, the silence occurred in the context of a conversation
between defendant Charles G. Bigge, a friend, and a close relative
regarding Bigges theft of money.542 Per the testimony, Bigge was silent
after one of the attendants remarked that he was guilty as hell.543 For
the reason appearing above, the court reversed the conviction and
remanded the matter for a new trial.544
The Bigge court characterized the trial courts admission of postaccusation silence, and the prosecutors comment on the silence, in the
context of a constitutional violation implicating the defendants right to
due process.545 There was no indication that Bigge was in police custody
at the time, or that he ever invoked the Constitution in this informal
setting.
Since Bigge, however, the U.S. Supreme Court has clarified that,
with two exceptions, the accused must invoke the Fifth Amendment to
obtain its protections.546 Those two exceptions are: (1) at triala
defendant has a right to remain silent at his trial without the prosecution
using this silence against him,547 and (2) after arresta person in custody
subject to police questioning need not invoke his Fifth Amendment right
to obtain its protection until after he has received his Miranda

540. MICH. R. EVID. 801(a); accord FED. R. EVID. 801(a).

541. People v. Bigge, 288 Mich. 417, 420, 285 N.W. 5, 6 (1939).
542. See id. at 419, 285 N.W. at 6.
543. Id.
544. Id. at 42122, 285 N.W. at 7.
545. See id. at 421, 285 N.W. at 7.
546. Salinas v. Texas, 133 S. Ct. 2174, 2179 (2013) (citing Griffin v. California, 380
U.S. 609, 61315 (1965)).
547. Id. at 2179, 2182 n.3 (citing Doyle v. Ohio, 426 U.S. 610, 61718 (1976)).

2015]

EVIDENCE

765

warning.548 In other words, since the Bigge courts ruling, the Supreme
Court has required defendants to expressly invoke the Fifth
Amendments protection against self-incrimination unless they are either
(a) at trial, or (b) in pre-Mirandized police interrogation.
Bigge, in contrast, appeared to carry a presumption that the
defendant invokes the privilege regardless of the situation, whereas
subsequent cases limited the presumption to trial and custodial
settings.549 Furthermore, in Bigge, the silence following accusation did
not occur in the context of either pre- or post-arrest police
interrogation.550
To put it simply, the U.S. Supreme Court has held that outside of the
trial/custodial-interrogation exceptions, the defendants failure at any
time to assert the constitutional privilege leaves him in no position to
complain now that he was compelled to give testimony against
himself.551
In Salinas v. Texas, a Survey-period case, the U.S. Supreme Court
had occasion to consider whether Miranda and its progeny, the Fifth
Amendment privilege against self-incrimination, and/or the Due Process
clauses of the Fifth and Fourteenth amendments prohibit criminal
prosecutors from introducing and commenting on defendants silence
during non-custodial police interviews.552 The Supreme Court, in a fiveto-four split, held that absent the defendants affirmative invocation of
the privilege, prosecutors may introduce and comment on the defendants
silence (unless, at the time of his silence, the defendant was either on
trial or subject to custodial interrogation).553
Genovevo Salinas was a suspect in two 1992 Houston murders.554
Shortly after the incident:
Police visited [Salinas] at his home, where they saw a dark blue car
in the driveway. He agreed to hand over his shotgun for ballistics
testing and to accompany police to the station for questioning.
Petitioners interview with the police lasted approximately one
hour. All agree that the interview was noncustodial, and the
548. Id. at 2180 (citing Miranda v. Arizona, 384 U.S. 436, 46768, 468 n.37 (1966);
Minnesota v. Murphy, 465 U.S. 420, 42930 (1984)).
549. See Bigge, 288 Mich. at 417, 285 N.W. at 5.
550. Id. at 419, 285 N.W. at 5.
551. Salinas, 133 S. Ct. at 2181, 2181 n.2 (quoting United States v. Kordel, 397 U.S.
1, 10 n.18 (1970)).
552. See id.
553. See id. at 2174.
554. Id. at 2185.

766

WAYNE LAW REVIEW

[Vol. 60:687

parties litigated this case on the assumption that he was not read
Miranda warnings. For most of the interview, petitioner
answered the officers questions. But when asked whether his
shotgun would match the shells recovered at the scene of the
murder, petitioner declined to answer. Instead, petitioner
[l]ooked down at the floor, shuffled his feet, bit his bottom lip,
cl[e]nched his hands in his lap, [and] began to tighten up. After
a few moments of silence, the officer asked additional questions,
which petitioner answered.555
At trial in 2007 (the defendant had absconded shortly after the 1993
interview), the prosecution introduced the defendants silence in the face
of questioning against him, over his counsels objection.556 Texass
appellate courts affirmed the conviction, and the U.S. Supreme Court
granted Salinass petition for a writ of certiorari.557
In a plurality opinion by Justice Samuel A. Alito Jr. for himself,
Chief Justice John G. Roberts Jr., and Justice Anthony M. Kennedy,558
the high court did not address the question of whether a trial courts
admission of non-custodial silence during police interviews violates the
Due Process or Self-Incrimination clauses; rather, it concluded that a
defendant forfeits the privilege by failing to assert it during a noncustodial interview.559 The high court held that Salinass interview was
one of the circumstances in which an accused must expressly invoke his
privilege against self-incrimination to obtain the benefit of the
privilege.560 The accuseds burden of invoking his privilege ensures that
the Government is put on notice when a witness intends to rely on the
privilege so that it may either argue that the testimony sought could not
be self-incriminating . . . or cure any potential self-incrimination through
a grant of immunity . . . .561
The traditional requirement, Justice Alito observed, prevents
individuals from gaming the system by employ[ing] the privilege to
avoid giving testimony that he simply would prefer not to give . . . .562
555. Id. at 2178 (emphasis added) (citation omitted).
556. Id. at 217879.
557. See id. (citing Salinas v. State, 368 S.W.3d 550 (Tex. App. Houston 14th Dist.
2011)); see also Salinas v. State, 369 S.W.3d 176 (Tex. Crim. App. 2012); Salinas v.
Texas, 133 S. Ct. 928 (2013)).
558. Id. at 2177.
559. Id. at 217980.
560. Id. at 2180.
561. Id. at 2179 (citing Hoffman v. United States, 341 U.S. 479, 486 (1951); Kastigar
v. United States, 406 U.S. 441, 448 (1972)).
562. Id. (quoting Roberts v. United States, 445 U.S. 552, 560 n.7 (1980)).

2015]

EVIDENCE

767

Without Violating the Fifth Amendment, May the Prosecution

Use a Defendants Silence Against Him or Her?
At trial?

Before arrest?

After arrest?

No. The prosecution may not

comment on a defendants failure
to take the stand at trial, whether he
invokes the Fifth Amendment or
not.563
But, in a retrial, the
prosecution may cross-examine a
defendant who does testify at the
later trial about his choice not to
testify at an earlier trial, and the
prosecution may comment about
his silence at the earlier trial.564
(See the discussion in Part
VI.A.3.a.)
Yes. Under Salinas, the
prosecution may introduce and
comment on the defendants prearrest and pre-Miranda silence
(even if the statements occur during
an interview at the police station),
unless he expressly invokes his
privilege
against
selfincrimination.565
Post-Miranda?
No.
The
prosecution may not comment on a
defendants silence after he
receives Miranda warnings, nor
may it cross-examine him on this
silence, regardless of whether he
expressly invokes the Fifth
Amendment or not.566
But, the prosecution may crossexamine a testifying defendant

563. Id. at 2179, 2182 n.3 (citing Doyle v. Ohio, 426 U.S. 610, 61718 (1976)).
564. People v. Clary, 494 Mich. 260, 272, 833 N.W.2d 308, 315 (2013).
565. See Salinas, 133 S. Ct. at 2180.
566. Id. at 2180 (citing Miranda v. Arizona, 384 U.S. 436, 46768, 468 n.37 (1966);
Minnesota v. Murphy, 465 U.S. 420, 42930 (1984)).

768

WAYNE LAW REVIEW

Where invoking the right

itself would incriminate the
person (e.g., by invoking the
privilege on tax forms, a person
would
be
admitting
to
committing tax evasion)?
Where invoking the right
would
jeopardize
ones
government
contract
or
employment, or holding public
office?
Where the defendant is not
speaking with a police agent, or
where the defendant is unaware
that the other conversant is a
police agent?

[Vol. 60:687

about (pre-arrest or post-arrest)

silence that occurs before the
defendant
receives
Miranda
567
warnings.
No. The prosecution may not
comment on a defendants silence
in such circumstances, even if the
defendant did not expressly invoke
his Fifth Amendment privilege.568
No. The prosecution may not
comment on a defendants silence
in such circumstances, even if the
defendant did not expressly invoke
her Fifth Amendment privilege.569
The prosecution may comment
on the defendants silence, as there
is no Miranda requirement.570

As explained by Justice Alito, A witness does not expressly invoke

the privilege by standing mute.571 The courts plurality rejected
Salinass position that most citizens, even children, are familiar with the
general nature and purpose of Miranda warnings, and that punishing
silence deriving from popular misconceptions of a general right to
remain silent would be unfair to . . . a suspect unschooled in the
particulars of legal doctrine.572 Accordingly, the plurality held, [s]o
long as police do not deprive a witness of the ability to voluntarily
invoke the privilege, there is no Fifth Amendment violation.573 Thus,

567. People v. Sutton, 436 Mich. 575, 598, 464 N.W.2d 276, 286 (1990).
568. Salinas, 133 S. Ct. at 2180 (citing Leary v. United States, 395 U.S. 6, 2829
(1969); Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 7779 (1965)).
569. See id. (citing Garrity v. New Jersey, 385 U.S. 493, 497 (1967); Lefkowitz v.
Cunningham, 431 U.S. 801, 80204 (1977); Lefkowitz v. Turley, 414 U.S. 70, 8485
(1973)).
570. See Illinois v. Perkins, 496 U.S. 292, 298 (1990) (citing Hoffa v. United States,
385 U.S. 293 (1966)).
571. Salinas, 133 S. Ct. at 2181.
572. Id. at 2182.
573. Id. at 2184.

2015]

EVIDENCE

769

the U.S. Supreme Court affirmed the Texas courts that upheld Salinass
conviction.574
The reader should note that while Justice Alitos plurality opinion
bore the signatures of only three justices, his concurring colleagues,
Justices Clarence Thomas and Antonin G. Scalia, would have ventured
much further.575 They would have overruled Griffin v. California so as to
allow the prosecution to comment on silence in the face of an accusation,
even the defendants silence at trial.576
The Majority Position on the U.S. Supreme Court Toward NonCustodial Silence with Police Officers
The Salinas Plurality
Alito

Roberts

Kennedy

The Concurring Justices

Thomas

Scalia

Absent the defendant expressly

The prosecution should
invoking his privilege against self- be able to comment on any
incrimination, the prosecution may silence.578
introduce and comment on a defendants
silence in non-custodial settings without
violating the Constitution.577
The lowest common denominator: Five of nine justices support, at
the very least, the plurality position that the prosecutions introduction of
a defendants silence in non-custodial settings is constitutional, absent
the defendant expressly invoking his privilege against self-incrimination.
This returns us to Bigge. Inasmuch as the Bigge court predicated its
ruling on a theory of due process, a subsequent case before the Michigan
Supreme Court, People v. McReavy, which was subsequent to Miranda,
held that Bigges broad proscription against the prosecutions use of
post-accusation silence is merely evidentiary in nature, implicating the
rules of evidence but not constitutional provisions.579 The McReavy court
held that once constitutional obligations are fulfilled, use of a party

574. See id.

575. Id.
576. See id. (Thomas, J., concurring) (citing Griffin v. California, 380 U.S. 609, 609
(1965)).
577. Id. at 217784 (plurality opinion).
578. Id. at 218485 (Thomas, J., concurring).
579. People v. McReavy, 436 Mich. 197, 213, 462 N.W.2d 1, 8 (1990).

770

WAYNE LAW REVIEW

[Vol. 60:687

opponents statements and conduct are to be evaluated pursuant to MRE

801.580
Prior to Salinas, Justice Stephen J. Markman observed that since
Miranda, neither the state nor federal supreme courts have considered
whether the use of pre-arrest/pre-Miranda silence is admissible as
substantive evidence of guilt, but the Michigan Court of Appeals has,
and has found no constitutional barriers to the admission of such
evidence for this purpose.581 The U.S. Supreme Court has held that prearrest/pre-Miranda silence is admissible to impeach a witness.582 Now
that Salinas has held that admitting such silence does not violate a
defendants constitutional rights (at least absent the defendant invoking
the constitution),583 is an outright overruling of Bigge on the horizon?
Time will tell.
C. Hearsay Exceptions
The Michigan Supreme Court has explained that [e]xceptions to the
hearsay rule are justified by the belief that the hearsay statements are
both necessary and inherently trustworthy.584 The words inherently
trustworthy, the Michigan Supreme Court has explained, refer to the
totality of the circumstances surrounding the actual making of the
statement, not evidence corroborating the statement.585 I discuss some
of those exceptions below.
1. Where the Declarant May or May Not Be Unavailable at Trial
Some hearsay statements can be admissible regardless of whether the
declarant is unavailable for trial.586

580. Id. at 222, 462 N.W.2d at 12; see also MICH. R. EVID. 801.
581. People v. Redd, 486 Mich. 966, 967, 783 N.W.2d 93, 94 (2010) (Markman, J.,
concurring) (citing People v. Schollaert, 194 Mich. App. 158, 16667, 486 N.W.2d 312,
31617 (1992); People v. Solmonson, 261 Mich. App. 657, 665, 683 N.W.2d 761, 767
(2004)).
582. Id. at 967, 783 N.W.2d at 94 (citing Jenkins v. Anderson, 447 U.S. 231, 240
(1980)).
583. See Salinas v. Texas, 133 S. Ct. 2184 (2013).
584. People v. Meeboer, 439 Mich. 310, 321, 484 N.W.2d 621, 626 (1992) (citing
Solomon v. Shuell, 435 Mich. 104, 119, 457 N.W.2d 669, 675 (1990)). The introductory
material in this section borrows heavily, if not entirely, from the previous years Survey
article on evidence. See Meizlish, supra note 3, at 116768.
585. Meeboer, 439 Mich. at 323 n.17, 484 N.W.2d at 627 n.17 (emphasis added)
(citing State v. Larson, 472 N.W.2d 120, 125 (Minn. 1991)).
586. See MICH. R. EVID. 803; see also FED. R. EVID. 803.

2015]

EVIDENCE

771

a. Present-Sense Impressions
One of the more common hearsay exceptions is that appearing in
MRE 803(1)the present-sense impression, which the Michigan rules
define as [a] statement describing or explaining an event or condition,
made while the declarant was perceiving the event or condition, or
immediately thereafter.587 To establish that a hearsay statement falls
within the exception: (1) the statement must provide an explanation or
description of the perceived event, (2) the declarant must have personally
perceived the event, and (3) the explanation or description must have
been made at a time substantially contemporaneous with the event.588
However, in many, if not most, instances precise contemporaneity is not
possible and hence a slight lapse is allowable.589
In People v. Chelmicki, prosecutors charged Eric M. Chelmicki with
the felony of unlawful imprisonment and the misdemeanor of domestic
violence.590 Chelmicki and his girlfriend were living together in Macomb
County and an argument ensued over an eviction notice.591 The
defendants temper rose, prompting the victim to attempt to leave their
apartment via the fire escape.592 While she was on the fire escape, the
defendant grabbed her by her coat and dragged her back into the
apartment. The victim recalled that she had broken blood vessels in her
wrists after the assault.593
Neighbors observed part of the incident and reported that the victim
told them that defendant had turned the apartment stoves gas burners on
and was attempting to blow up the apartment complex.594 While the
defendant had already left the apartment by the time police arrived,
officers found the victim, who was visibly upset and crying, [and who]
told the officers that defendant had put a gun to her head.595 The officers
had the victim write a statement while they were investigating the
incident.596 The jury convicted the defendant at the trials conclusion, and

587. MICH. R. EVID. 803(1). The federal rule is virtually identical. See FED. R. EVID.
803(1).
588. People v. Chelmicki, 305 Mich. App. 58, 63, 850 N.W.2d 612, 616 (2014)
(quoting People v. Hendrickson, 459 Mich. 229, 236, 586 N.W.2d 906, 90809 (1998)).
589. Id. (quoting Hendrickson, 459 Mich. at 236, 586 N.W.2d at 909).
590. Id. at 6061, 850 N.W.2d at 61415.
591. Id. at 61, 850 N.W.2d at 615.
592. Id.
593. Id.
594. Id.
595. Id.
596. Id.

772

WAYNE LAW REVIEW

[Vol. 60:687

on appeal he argued that the trial court erred in admitting the victims
statement to the police in violation of the hearsay rule.597
However, a unanimous panel of the Michigan Court of Appeals
concluded that the statement fell within two hearsay exceptions,
including the present-sense impression.598
The statement provided a description of the events that took
place inside the apartment and the victim perceived the event
personally. Lastly, the statement was made at a time
substantially contemporaneous with the event, as the evidence
showed, at most, a lapse of 15 minutes between the time police
entered the apartment and the time the victim wrote the
statement.599
Accordingly, the panel of Chief Judge William B. Murphy and
Judges Michael J. Kelly and Amy Ronayne Krause, in a per curiam
opinion, affirmed the defendants conviction and sentence, for this and
other reasons.600
b. Past Recollection Recorded
At times during his or her testimony, a witness may be unable to
remember some or all aspects of the circumstances to which he or she
testifies.601 It not infrequently happens that a witness, under the
embarrassment of an examination, forgets, or omits to state, facts within
his knowledge, or is disinclined to disclose fully and definitely what he
knows.602Accordingly, courts allow a party to attempt to refresh the
witnesss memory with a document or some other item, even if the
witness was not the author or creator of the document or item.603
597. Id. at 6062, 850 N.W.2d at 61415.
598. Id. at 63, 850 N.W.2d at 616.
599. Id. It does not appear that the trial court or the Michigan Court of Appeals
considered whether the victims statements were admissible pursuant to the statutory
hearsay exception for domestic violence victims statements to police officers. See MICH.
COMP. LAWS ANN. 767.27c (West 2015); Meizlish, supra note 23, at 87174.
600. Chelmicki, 305 Mich. App. at 71, 850 N.W.2d at 620.
601. Hileman v. Indreica, 385 Mich. 1, 78, 187 N.W.2d 411, 412 (1971). This
introductory material to the past-recollection recorded exception borrows heavily, if not
entirely, from the 2012 Survey article on evidence. See Meizlish, supra note 23, at 864
65.
602. Hileman, 385 Mich. at 78, 187 N.W.2d at 412.
603. See People v. Hill, 282 Mich. App. 538, 547, 766 N.W.2d 17, 25 (2009), affd in
part, vacated in part, 485 Mich. 912, 733 N.W.2d 257 (2009); see also United States v.
Marrero, 651 F.3d 453, 47172 (6th Cir. 2011) (quoting Rush v. Ill. Cent. R.R. Co., 399

2015]

EVIDENCE

773

If this document fails to refresh the witnesss memory, the proponent

of his testimony, through the hearsay exception in Rule 803(5), may then
have the witness read the contents of a document he or she authored as
evidence of his prior recollection (Recorded Recollection).604 To do so,
the proponent must establish that the record was made or adopted by the
witness when the matter was fresh in the witness memory . . . .605
In People v. Chelmicki, a case I first discussed in Part VIII.C.1.a, the
victim had difficulty remembering the events of a domestic violence
incident with specificity.606 Her statement to the police refreshed her
memory, but only in part.607
In response, the prosecution read several statements made by the
victim into the record, including (1) that defendant turned the
gas on in the kitchen to kill us both. He had me by the throat
when he had the BB gun. He told me the cops could kill him, he
didnt care; (2) that defendant broke my blood vessels in my
wrists, put a . . . BB gun to my head and told me to call the
cops; (3) that defendant grabbed me by my coat, drug me
across the kitchen floor, he broke a blood vessel in my wrist. He
put his BB gun to my head and told me to call the cops; (4) that
defendant pinned me down to the bed and would not let me
open the door for the police; and (5) that defendant had me by
the throat when he had the BB gun, he told me the cops could
kill him, he didnt care.608

F.3d 705, 716 (6th Cir. 2005) (The propriety of permitting a witness to refresh his
memory from a writing prepared by another largely lies within the sound discretion of the
trial court.)). But see MICH. R. EVID. 612(b) ([When] the court in its discretion
determines that the interests of justice so require, an adverse party is entitled to have the
writing or object produced, if practicable, at the trial, hearing, or deposition in which the
witness is testifying.). The corresponding federal rule provides that:
Unless 18 U.S.C. 3500 provides otherwise in a criminal case, an adverse
party is entitled to have the writing produced at the hearing, to inspect it, to
cross-examine the witness about it, and to introduce in evidence any portion
that relates to the witnesss testimony. If the producing party claims that the
writing includes unrelated matter, the court must examine the writing in
camera, delete any unrelated portion, and order that the rest be delivered to the
adverse party. Any portion deleted over objection must be preserved for the
record.
FED. R. EVID. 612(b).
604. MICH. R. EVID. 803(5).
605. Id.
606. Chelmicki, 305 Mich. App. at 6162, 850 NW.2d at 615.
607. Id.
608. Id. at 62, 850 N.W.2d at 615 (alteration in original).

774

WAYNE LAW REVIEW

[Vol. 60:687

The prosecution, the appellate panel concluded, laid the proper

foundation for a past recollection recorded.609 The police statement
pertained to a matter about which the declarant had sufficient personal
knowledge, she demonstrated an inability to sufficiently recall those
matters at trial, and the police statement was made by the victim while
the matter was still fresh in her memory.610Accordingly, there was no
error in the trial court admitting the statements, the panel held.611
c. Ancient Documents
While the word ancient conjures up images of Eyptian pharoahs
and Greek philosophers from thousands of years ago, to the rules drafters
it could mean a couple decades ago.612 Federal Rule of Evidence
803(16), in fact, contains an exception to the hearsay rule for
[s]tatements in [a]ncient [d]ocuments [] a statement in a document
that is at least 20 years old and whose authenticity is established.613
Michigans rule is virtually identical.614 In Brumley v. Albert E. Brumley
& Sons, Inc., a unanimous panel of the Sixth Circuit held that there is no
requirement that the ancient documents author have personal knowledge
as to the truth of his or her assertions in the article.615
In 1975, gospel songwriter Albert E. Brumley purported to transfer
his ownership rights in various compositions to two of his children,
William and Robert Brumley.616 In 2006, A.E. Brumleys four other
children filed a notice of termination, which, presumably, would allow
them to share in the profits of their fathers copyrights.617 At issue before
the U.S. District Court for the Middle District of Tennessee was whether,
for copyright-law purposes, A.E. Brumley was the statutory author of
the songs, or if the songs were work[s] made for hire.618 (The
songwriter had a business relationship in the late 1920s and early 1930s
with the Hartford Music Co., which was the original copyright holder of
his first hit.619 Brumleys firm purchased Hartford in the late 1940s.620)
609.
610.
611.
612.
613.
614.
615.
2013).
616.
617.
618.
619.
620.

Id. at 64, 850 N.W.2d at 616.

Id.
Id.
See FED. R. EVID. 803(16).
FED. R. EVID. 803(16).
MICH. R. EVID. 803(16).
Brumley v. Albert E. Brumley & Sons, Inc., 727 F.3d 574, 57980 (6th Cir.
Id. at 576.
Id.
Id.
Id.
Id.

2015]

EVIDENCE

775

The plaintiff children sought to prove that their late father was the
statutory author of the works because federal copyright law provides that
there are no termination rights for works made for hire.621 Conversely,
Robert Brumley sought to show that his siblings had no termination
rights, as the songs were works made for hire.622
Prior to trial, Roberts siblings convinced the district court to grant
their motion in limine to exclude two articles from music publications,
one from 1977, the other from 1986, which provided statements that
Brumley, Sr. was a salaried employee of Hartford during the time that he
wrote the Song.623 After other evidentiary rulings, a jury trial resulted in
a verdict in the plaintiffs favor that the songs were not work made for
hire, triggering the heirs termination rights.624 Following the trial, the
district judge concluded that the heirs termination notice was valid.625
Robert filed an interlocutory appeal, challenging this decision as well as
the evidentiary rulings leading to the jury verdict in favor of his
opponents.626
On appeal, the Sixth Circuit panel observed that Roberts siblings did
not dispute the authenticity of the articles, satisfying the second
requirement of FRE 803(16).627 Nor was there a dispute that the articles
were at least 20 years old, satisfying the first requirement.628 The district
court, the appellate panel observed, remained on the right track as it
opined that the content of the document is a matter of evidentiary
weight left to the sole discretion of the trier of fact, and, therefore, the
factual accuracy of the statement is not pertinent when considering
whether the hearsay exception applies.629
The judge erred, however, when she reached outside Federal Rule
803 and excluded the articles pursuant to Rule 403 because [t]here is no
clear indication in these articles as to how the authors acquired the
information that they used to make representations regarding Brumleys
employment status at the relevant time.630 As I noted above, the Sixth
Circuit held that there is no foundational requirement that the authors of

621.
622.
623.
624.
625.
626.
627.
628.
629.
630.

Id. (citing 17 U.S.C.A. 304(c) (West 2014)).

Id.
Id. at 577.
Id.
Id.
Id.
Id. at 579; see also FED. R. EVID. 803(16).
Brumley, 727 F.3d at 579.
Id. (citing United States v. Kalymon, 541 F.3d 624, 633 (6th Cir. 2008)).
Id.

776

WAYNE LAW REVIEW

[Vol. 60:687

ancient documents have personal knowledge of the truth of their

assertions.631
Second, the panelJudge Boyce F. Martin Jr., writing for himself
and Judges Damon J. Keith and R. Guy Cole Jr.,632noted that the
articles were well sourced from persons who presumably did have
personal knowledge.633 It is apparent from the context of the
Stubblefield article that Stubblefield interviewed Brumley, Sr., and the
notes section at the conclusion of Malones article lists all of Malones
sources, which include Brumley, Sr. and Eugene M. Bartlett, former
President of Hartford.634 Accordingly, the panel reversed the district
courts evidentiary ruling, which excluded the ancient documents from
trial.635
d. The State-of-Mind Exception
Federal Rule of Evidence 803(3) carves out another hearsay
exception for:
[a] statement of the declarants then-existing state of mind (such
as motive, intent, or plan) or emotional, sensory, or physical
condition (such as mental feeling, pain, or bodily health), but not
including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the validity or terms
of the declarants will.636
The Michigan rule is virtually identical.637 The Sixth Circuit
concluded in United States v. Reichert that a federal district courts
application of this rule, although possibly erroneous, did not violate a
defendants constitutional rights to present a defense.638
The federal government charged Jeffrey J. Reichert with violating
the Digital Millennium Copyright Act (DMCA) by selling technology
and assisting others in modifying video game consoles so that the
devices would play pirated video games.639 In Reichert, an undercover
631.
632.
633.
634.
635.
636.
637.
638.

Id.
Id. at 57475.
Id. at 579.
Id.
Id. at 580.
FED. R. EVID. 803(3).
See MICH. R. EVID. 803(3).
See United States v. Reichart, 747 F.3d 445, 45354 (6th Cir. 2014) (citing U.S.
CONST. amends. VI, XIV).
639. Id. at 448 (citing 17 U.S.C.A 1201(a)(2)(A) (West 2014)).

2015]

EVIDENCE

777

officer contacted the defendant and asked for assistance in modifying a

Nintendo Wii: Reichert responded to the agents requests, purchased a
Wii, installed a modification chip, and sold the modified Wii to the agent
for a $50 profit. When the Wii was tested, it was able to play both
legitimate video games and pirated ones.640 At trial, the government
introduced evidence that the defendant involved himself in online forums
that discussed the process of modifying consoles in such a manner and
that once, he even boasted online that, I meant that no one cares if
people are doing installs. We arent technically supposed to do it.641 At
other times, Reichert told users of the online forum where they could buy
pirated games and conceal their console modifications from the
manufacturers.642 When an agent interviewed the defendant while his
colleagues searched Reicherts home, Reichert never stated to me that it
was illegal . . . he knew the mod chips were in a gray area.643
At trial, the government bore the burden of establishing that the
defendant willfully violated DMCAthat the defendant acted with
knowledge that his conduct was unlawful.644 To negate the knowledge
element, the defense presented a friend of Reichert, Kevin Belcik, who
testified that he and the defendant learned how to modify computers
from a vocational program in high school.645 Had the district court not
sustained the governments objection, he would have also testified that
Reichert believed his game console modifications were similar to
computer modifications and that Reichert indicated that he believed that
modifying the hardware was legal but selling the copyrighted games was
illegal.646
At the conclusion of the trial, the jury found the defendant guilty.647
The district court imposed a sentence of one year and one day in
prison.648
On appeal, the defendant argued that the district judges exclusion of
his friends testimony violated his constitutional right to present a
defense.649 The Sixth Circuit acknowledged that the statement might
have been admissible under the state-of-mind exception in Rule 803(3),
640. Id.
641. Id. at 449.
642. Id.
643. Id. (internal quotations omitted).
644. Id. at 451 (quoting United States v. Roth, 628 F.3d 827, 834 (6th Cir. 2011))
(internal quotation marks omitted).
645. Id. at 44849.
646. Id. at 449 (internal quotations omitted).
647. Id. at 450.
648. Id.
649. Id. at 454.

778

WAYNE LAW REVIEW

[Vol. 60:687

but noted first that Belcik admitted that he was in the Navy between
2004 and 2008 and that he was away in 2007 at the time of Reicherts
sale of the modified console and the search of his residence, and second,
that Belcik never testified that Reichert made the statements
contemporaneous with the 2007 event that was the subject of the
indictment.650 (Again, the exception only covers a statement of the
declarants then-existing state of mind . . . .651)
Addressing the defendants constitutional argument, the panel
observed that a defendant does not have an unfettered right to offer
evidence that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence,652 and that the Constitution permits judges
to exclude evidence that is repetitive, only marginally relevant or poses
an undue risk of harassment, prejudice, or confusion of the issues.653
Judge Richard A. Griffin, writing for a two-person majority of
himself and Judge John M. Rogers,654 concluded that there was no
constitutional violation because the friends testimony was only
marginal[ly] probative of Reicherts state of mind in 2007 and because
Reichert had at least one other avenue of putting his own statements and
beliefs into evidence: by taking the stand himself.655 Accordingly, the
panel affirmed the defendants conviction and sentence, for this and
other reasons.656 Dissenting, Judge Bernice B. Donald would have
reversed the conviction on the ground that the district court did not
properly instruct the jury.657
e. The New Notice-and-Demand Provision in the Federal
Rules Public Records Exception
Both the federal and state rules contain various hearsay exceptions
for the records of government, business, and religious organizations.658
For example, the exception in Federal Rule of Evidence 803(8) provides
an exception for:

650. See id.; see also FED. R. EVID. 803(3).

651. FED. R. EVID. 803(3) (emphasis added).
652. Reichert, 747 F.3d at 453 (quoting United States v. Blackwell, 459 F.3d 739, 753
(6th Cir. 2006)).
653. Id. (quoting Holmes v. South Carolina, 547 U.S. 319, 32627 (2006)) (internal
quotation marks omitted).
654. Id. at 446.
655. Id. at 454.
656. Id. at 455.
657. Id. at 46364 (Donald, J., dissenting).
658. See MICH. R. EVID. 803; see also FED. R. EVID. 803.

2015]

EVIDENCE

779

Public Records. A record or statement of a public office if:

(A) it sets out:
(i) the offices activities;
(ii) a matter observed while under a legal duty to
report, but not including, in a criminal case, a matter
observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a
criminal case, factual findings from a legally
authorized investigation; and
(B) neither the source of information nor other
circumstances indicate a lack of trustworthiness.659
The Michigan rules contain a public-records exception that is
substantially similar.660
Rather than introducing a public record, what if a litigant seeks to
show the fact finder that a relevant public record does not exist?
Suppose, for example, a defendant alleges that on January 15, he
transmitted his tax filing to the Internal Revenue Service. The plaintiff
seeks to show the jury that the IRS has no record of such a filing.
Under Federal Rule of Evidence 803(10), the plaintiff may present
testimony from a qualified person with access to those records that no
record of such filing exists.661 In civil cases, in both federal and state
courts, in lieu of the live testimony of a records keeper, a party may
present the sworn statement of a records custodian that the record does
not exist or that the custodian was unable to locate it, so long as the
certification complies with the self-authentication provisions in Federal
Rule of Evidence 902.662
A recent amendment to the federal version of Rule 803(10),
however, applies in criminal cases only and requires the government to
serve notice on the defense of its intent to introduce a self-authenticating
certification (with no live testimony) that no relevant public record
exists.663 The government must provide such notice no less than 14 days
659. FED. R. EVID. 803(8).
660. Compare FED. R. EVID. 803(8), with MICH. R. EVID. 803(8).
661. FED. R. EVID. 803(10).
662. See id. (citing FED. R. EVID. 902); see also MICH. R. EVID. 803(10) (citing MICH.
R. EVID. 902).
663. FED. R. EVID. 803(10).

780

WAYNE LAW REVIEW

[Vol. 60:687

before trial.664 If the defense fails to object within seven days of

receiving the notice, the court may admit the certification without the
custodians live testimony.665
This notice-and-demand provision is similar to Michigans noticeand-demand provision in MCR 6.202 that allows prosecutors to
introduce forensic laboratory reports in criminal cases without the
technician or record keepers live testimony, provided the prosecution
serves timely notice on the defense, and provided the defense does not
object in a timely manner.666 (I discussed this new provision in the
previous years Survey article.667) As I discussed last year with respect to
the laboratory-report notice-and-demand provisions, these provisions
take their cue from Melendez-Diaz v. Massachusetts, where the U.S.
Supreme Court explained that notice-and-demand provisions do not
violate a defendants Sixth Amendment right to confront the witnesses
against him:
In their simplest form, notice-and-demand statutes require the
prosecution to provide notice to the defendant of its intent to use
an analysts report as evidence at trial, after which the defendant
is given a period of time in which he may object to the admission
of the evidence absent the analysts appearance live at trial.
Contrary to the dissents perception, these statutes shift no
burden whatever. The defendant always has the burden of raising
his Confrontation Clause objection; notice-and-demand statutes
simply govern the time within which he must do so. States are
free to adopt procedural rules governing objections.668
The recent rule amendment was a response to various federal
circuits holdings that certifications of records custodians (absent live
testimony) that pertinent records did not exist violated the Confrontation
Clause.669 The new notice-and-demand provision would seem to
664. Id.
665. Id.
666. MICH. CT. R. 6.202(C).
667. Meizlish, supra note 3, at 115355.
668. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 32627 (2009) (emphasis added)
(citations omitted).
669. New Amendment: FRE 803(10) Notice And Demand Requirements Effective
December
1,
2013,
FED.
EVIDENCE
REV.
(Dec.
2,
2013),
http://federalevidence.com/blog/2013/november/fre-80310-notice-and-demandamendment-takes-effect-december-1-2013 (citing United States v. Martinez-Rios, 595
F.3d 581 (5th Cir. 2010); United States v. Orozco-Acosta, 607 F.3d 1156 (9th Cir.
2010)).

2015]

EVIDENCE

781

eliminate the possible confrontation issue. Michigan has yet to follow

suit.
f. The Limited Statutory Hearsay Exception for Documents in
Michigan Criminal Cases at the Preliminary-Examination Stage
Michigan criminal felony cases usually begin before a district judge,
to whom the prosecution must establish probable cause that the
defendant is guilty of a felony, and only upon doing so may the
prosecution file an information (equivalent to an indictment) in circuit
court.670
The rules of evidence apply at these preliminary examinations,671
with a few exceptions.672 Public Act 123 of 2014, now section 766.11b of
the Code of Criminal Procedure, establishes additional exceptions to the
hearsay rule and, in some cases, to the rules of authentication; however,
again, only at the preliminary examination and not at trial:673
[T]he following are not excluded by the rule against hearsay and
shall be admissible at the preliminary examination without
requiring the testimony of the author of the report, keeper of the
records, or any additional foundation or authentication:
(a) A report of the results of properly performed drug
analysis field testing to establish that the substance
tested is a controlled substance.
(b) A certified copy of any written or electronic order,
judgment, decree, docket entry, register of actions, or
other record of any court or governmental agency of this
state.
(c) A report other than a law enforcement report that is
made or kept in the ordinary course of business.
(d) Except for the police investigative report, a report
prepared by a law enforcement officer or other public
agency. Reports permitted under this subdivision
670. MICH. COMP. LAWS ANN. 767.42 (West 2015); MICH. CT. R. 6.110(E). There is
no preliminary examination in most misdemeanor cases. See MICH. COMP. LAWS ANN.
600.8311(d).
671. MICH. CT. R. 6.110(C).
672. See, e.g., MICH. R. EVID. 1101(b)(8).
673. MICH. COMP. LAWS ANN. 766.11b (emphasis added).

782

WAYNE LAW REVIEW

[Vol. 60:687

include, but are not limited to, a report of the findings of

a technician of the division of the department of state
police concerned with forensic science, a laboratory
report, a medical report, a report of an arson investigator,
and an autopsy report.674
While subsection (a) carried over from section 11b prior to Public
Act 123, and subsection (b) functionally mirrors the hearsay exception
for public records in Rule 803(8), subsection (c) bestows on the parties at
preliminary examination great leeway to introduce such documents as
bank-account records and hospital records.675 This broad exception
allows the court to admit business documents, not only in spite of the
hearsay rule, but also in spite of the rules of authentication; the rule
negates the need for a live witness, such as a records custodian to
authenticate the document676 or even a custodians certification or a
public seal.677
Subsection (d) broadens the hearsay and authentication exception
rule for forensic laboratory reports at exam.678 The previous statute679
only granted an exception to forensic-science reports from the Michigan
State Polices laboratory, not reports from other crime laboratories in
Michigan, arson reports, coroners reports, or other medical reports.680
2. Where the Declarant is Unavailable at Trial
a. Unavailability Generally
Contrary to those I discussed in Part VIII.C.1, some statements
falling within hearsay exceptions are admissible only when the proponent
establishes that the declarant is unavailable at trial.681 When the
declarant is unavailable, a court, pursuant to Rule 804, may admit
some hearsay statements such as prior testimony or dying declarations.682
In Michigan, unavailable can refer to:

674.
675.
676.
677.
678.
679.
680.
681.
682.

Id.
MICH. R. EVID. 803(8).
See MICH R. EVID. 901.
MICH. COMP. LAWS ANN. 766.11b(c); see MICH. R. EVID. 902.
See MICH. COMP. LAWS ANN. 766.11(d).
Id. 600.2167, repealed by 2014 Mich. Pub. Acts 124, 1.
Id.
See MICH. R. EVID. 804; see also FED. R. EVID. 804.
MICH. R. EVID. 804; FED. R. EVID. 804.

2015]

EVIDENCE

783

a witness who cannot testify due to a matter because it is

privileged;
a witness who refuses to testify despite a court order to the
contrary;
a witness who cannot remember the subject matter; or
a declarant whose live testimony a proponent has made
good-faith efforts to secure, but failed to bring to court.683

Unavailability also incorporates a witness who is unable to be

present or to testify at the hearing because of death or then existing
physical or mental illness or infirmity . . . .684
People v. Duncan, a Michigan Supreme Court case in the Survey
period, clarified that a child witness can be mentally infirm due to his
or her age, for the rules purpose, thus laying part of the foundation to
admit his or her prior hearsay statements.685 Furthermore, the Duncan
court explained, the words then existing physical or mental illness or
infirmity in Rule 804 mean that the illness or infirmity need not be
permanent.686
Chief Justice Robert P. Young Jr., writing for himself and Justices
Mary Beth Kelly, Bridget M. McCormack, Brian K. Zahra, and David F.
Viviano,687 held that when a child attempts to testify but, because of her
youth, is unable to do so because she lacks the mental ability to
overcome her distress, the child has a then existing . . . mental . . .
infirmity within the meaning of MRE 804(a)(4) and is therefore
unavailable as a witness.688 Macomb County prosecuting officials
charged husband and wife Stanley and Vita Duncan with multiple counts
of felony criminal sexual conduct.689 When the case commenced, RS, a
three-year-old, was the only victim of Vita and one of Stanleys three
victims.690
RS initially testified against the Duncans at separate preliminary
examinations in late 2011.691 At Stanleys preliminary examination, RS
correctly answered the trial courts questions about her age, her birthday,
and her dogs name, among others. The judge then asked RS if she knew
683. MICH. R. EVID. 804(a). The corresponding federal rule is very similar, but not
identical. See FED. R. EVID. 804(a).
684. MICH. R. EVID. 804(a)(4).
685. People v. Duncan, 494 Mich. 713, 726, 835 N.W.2d 399, 406 (2013).
686. Id.
687. Id. at 730, 835 N.W.2d at 408.
688. Id. at 717, 835 N.W.2d at 401.
689. Id. at 71718, 835 N.W.2d at 401.
690. Id. at 718, 835 N.W.2d at 401.
691. Id.

784

WAYNE LAW REVIEW

[Vol. 60:687

the difference between telling the truth and not telling the truth, to which
she responded, Yes. She also affirmed that she would honestly answer
the questions of the attorneys.692
The district court qualified RS as a witness after this voir dire.693 RS
testified that, on at least three occasions, Stanley Duncan touched her
private, indicating her vaginal area, and blew raspberries on her
vaginal area while her pants and underwear were off. The raspberries
hurt a little bit, and his touching really hurted. She testified that the
acts occurred in the bathroom of defendants home, where RS attended
daycare.694
The district court similarly voir dired RS prior to her testimony at
Vitas preliminary examination and found her qualified to testify.695 RS
repeated substantially the same answers that she previously gave
regarding Stanley Duncan, and also stated that she told Vita more than
once that Stanley had touched her. RS also testified that, on at least one
occasion while Stanley was touching her, Vita was just outside the
bathroom and that RS could see Vita.696
The district court bound over both defendants to the circuit court,
which scheduled a joint trial.697 At trial, almost a year later,698
RS was called to the stand and was first questioned by the court.
When asked whether she knew the difference between the truth
and a lie, RS responded, No, and was unable to explain what a
promise means. After RS struggled to answer questions similar
to those answered at the preliminary examinations, the trial court
excused the jury, and met with counsel, RS, and RSs parents in
chambers. Afterward, RS was again put on the stand, and again
answered, No to the questions regarding whether she knew
what the truth is, what a lie is, and what a promise is. RS was
clearly agitated. Throughout the courts questioning, RS had
tears in her eyes and was wringing her hands. RS began crying in
earnest just before the court excused her. The court ruled that she
was not competent to testify pursuant to MRE 601.699

692.
693.
694.
695.
696.
697.
698.
699.

Id. at 718, 835 N.W.2d at 401.

Id.
Id.
Id. at 71819, 835 N.W.2d at 40102.
Id. at 719, 835 N.W.2d at 402.
Id.
Id.
Id.

2015]

EVIDENCE

785

The trial court denied the prosecutions request to declare RS

unavailable pursuant to Rule 804, which would have allowed the
prosecution to admit RSs testimony at the preliminary examination in
lieu of her live testimony.700 Nevertheless, the court stayed the
proceedings, which allowed the prosecution to file an emergency
interlocutory appeal.701 The Michigan Court of Appeals affirmed,
concluding, in the Supreme Courts words, that RS was not mentally ill
or infirm even though she may have lacked the mental capacity to qualify
as competent.702
Chief Justice Young commenced his analysis by examining the
meaning of the words infirm and infirmity, the former of which
means feeble or weak in body or health, [especially] because of
age.703 He emphasized that, [o]f note, age is specifically designated as
a factor that may give rise to an infirmity.704 The appearance of the
word mental in Rule 804 has the effect of modifying the word
infirmity, [t]hus, read together, the phrase mental infirmity as used in
MRE 804(a)(4) encompasses weakness or feebleness of the mindone
cause of which may be an individuals age.705
The fact that RS was previously able to testify did not affect the
analysis of whether she was available, because by the plain meaning of
Rule 804, the only relevant inquiry [to determine whether she is
unavailable] is her condition at the time she was called to testify.706
Buttressing the courts conclusion, the chief justice noted that children
lack the same level of mental maturity as that exhibited by and expected
of most adults, and [a]s a result of these limitations, young children are
less mentally equipped to cope with severe emotional distress.707
Accordingly, an emotional breakdown may eliminate any possibility of
securing testimony from the young child.708

700. Id. at 71920, 835 N.W.2d at 40203.

701. Id. at 72021, 835 N.W.2d at 403.
702. Id. at 72122, 835 N.W.2d at 40304; see People v. Duncan, Nos. 312637,
312638, 2012 Mich. App. LEXIS 2412, at *1517 (Nov. 29, 2012).
703. Duncan, 494 Mich. at 725, 835 N.W.2d at 406 (quoting RANDOM HOUSE
WEBSTERS COLLEGE DICTIONARY (2d ed. 1995)).
704. Id.
705. Id. at 726, 835 N.W.2d at 406.
706. Id. (emphasis added).
707. Id. at 72627, 835 N.W.2d at 40607 (citing John Phillipe Schuman, Nicholas
Bala & Kong Lee, Developmentally Appropriate Questions for Child Witnesses, 25
QUEENS L.J. 251, 255, 297 (1999); William Patton, Viewing Child Witnesses Through a
Child and Adolescent Psychiatric Lens: How Attorneys Ethical Duties Exacerbate
Childrens Psychopathology, 16 WIDENER L. REV. 369 (2010)).
708. Id.

786

WAYNE LAW REVIEW

[Vol. 60:687

The severity of RSs distress rendered her unavailable within the

meaning of Rule 804 because her age did not allow her to overcome her
distress so as to allow her to testify, the majority concluded.709 Applying
the holding of the case to the facts, the majority explained:
RS was four years old at the time she was called to testify at
trial. She demonstrated an inability to overcome her distress
when she was unable to answer the trial courts questions. When
asked whether she knew the difference between the truth and a
lie, RS responded, No, and was unable to explain what a
promise means. Furthermore, she answered, No to whether she
knew what the truth is, what a lie is, and what a promise is.
Importantly, throughout her examination RS had tears in her
eyes, was wringing her hands, and ultimately began to cry,
rendering her unable to answer counsels questions. While an
older youth or an adult may have been able to suppress the
unease of testifying in open court, RS, as a young child, was
susceptible to particular challenges that must be taken into
consideration when determining whether a witness is mentally
infirm under MRE 804(a)(4). As could be expected from a
young child, especially in the context of alleged criminal sexual
conduct, RS simply did not have the mental maturity to
overcome her debilitating emotions while on the stand.710
Accordingly, the supreme court reversed the court of appeals and
remanded the matter to the trial court to determine whether: (1) in light
of RS being unavailable at trial, her preliminary examination testimony
was admissible as former testimony pursuant to Rule 804(b)(1); and
(2) admitting RSs prior testimony would violate the accuseds rights to
confront the witnesses pursuant to the Confrontation Clause of the Sixth
Amendment.711
Justice Stephen J. Markman, however, determined that the majority
reached the right resultconcluding RS was unavailablebut for the
709. Id. at 72829, 835 N.W.2d at 407.
710. Id. at 72728, 835 N.W.2d at 407.
711. Id. Similarly, it is hard to consider how introducing former testimony would
violate the Duncans confrontation rights when they previously confronted the witness at
the preliminary examination. In fact, in Crawford v. Washington, the U.S. Supreme Court
held that the Sixth Amendment condition[s] admissibility of an absent witnesss
examination on unavailability and a prior opportunity to cross-examine. Crawford v.
Washington, 541 U.S. 36, 54 (2004). Here, clearly, the Duncans had a prior
opportunity at the preliminary examination, and she was unavailable, thus there is no
Crawford issue.

2015]

EVIDENCE

787

wrong reasonby concluding she was mentally infirm.712 Citing

various dictionary definitions, Justice Markman concluded that a
reasonable person would [not] characterize a perfectly healthy and
developmentally sound four-year-old child as mentally infirm, or as
suffering from the infirmities of age.713
Instead, he opined that there is a general principle of unavailability
in Rule 804(a), and emphasized the rules wording[u]navailability as
a witness includes [the five situations listed in MRE 804(a)(1)(5)].714
He explained, [u]se of the word includes, of course, indicates that the
list of five situations is not exhaustive or all-encompassing.715 While RS
was not mentally infirm in his view, she was unavailable for the
purposes of the rule.716 Justice Markman observed that prior published
cases established that a witness can be unavailable without falling
within the examples appearing in Rule 804(a)(1)(5), such as in People
v. Meredith, where a witness refused to testify on Fifth Amendment
grounds,717 and People v. Adams, where a witness abruptly left the
courthouse before testifying.718 Both the Meredith and Adams courts
held that the witnesses decisions not to testify was of the same
character as the other situations outlined in the subrule.719 To Justice
Markman, RSs situation was of the same character as the situations in
Meredith and Adams.
Justice McCormack concurred in the majoritys reasoning but wrote
separately to emphasize that there is a doctrinal foundation supporting
the proposition that the criminal law should recognize that children are
qualitatively different from adults . . . .720 The justice cited three
casesRoper v. Simmons, in which the court invalidated the death
penalty for defendants less than eighteen years of age at the time of the
offense; Graham v. Florida, which invalidated life sentences for
juveniles who commit offenses other than homicide; and Miller v.
Alabama, which invalidated mandatory sentences of life without the

712. Duncan, 494 Mich. at 73031, 835 N.W.2d at 40809 (Markman, J., concurring).
713. Id. at 73233, 835 N.W.2d at 409410.
714. Id. (quoting MICH. R. EVID. 804(a)).
715. Id. at 733, 835 N.W.2d at 410.
716. Id. at 736, 835 N.W.2d at 411.
717. Id. at 73334, 835 N.W.2d at 410 (citing People v. Meredith, 459 Mich. 62, 65
66, 586 N.W.2d 538, 53940 (1998)).
718. Id. (citing People v. Adams, 233 Mich. App. 652, 658, 592 N.W.2d 794, 797
(1999)).
719. Meredith, 459 Mich. at 6566, 586 N.W.2d at 53940; see also Adams, 233 Mich.
App. at 658, 592 N.W.2d at 794.
720. Duncan, 494 Mich. at 736, 835 N.W.2d at 411 (McCormack, J., concurring).

788

WAYNE LAW REVIEW

[Vol. 60:687

possibility of parole for juveniles.721 In my view, the Supreme Courts

acknowledgement that the criminal law must recognize that children are
different from adults underscores the majoritys holding in this case.722
Justice Michael F. Cavanagh, the lone dissenter, agreed with Justice
Markman that RS was not mentally infirm but disagreed with the
notion that RS was nevertheless unavailable for the purpose of Rule
804.723 The senior Democratic-nominated justice suggested that the court
rework Rule 804s definition of unavailability because more rigorous
attempts than were made in this case should occur before declaring a
child witness unavailable.724 He observed that our legal system makes
public testimony in front of the fact finder an important element of the
truth-seeking process . . . .725 The importance of both ensuring a fair
trial for the accused and protecting vulnerable children from predators
required reworking the rule.726
b. Statements Against Interest
If the court determines a witness is unavailable, it may admit the
witnesss statements against interest.727 In Michigan, Rule 804(b)(3)
defines a statement against interest as:
A statement which was at the time of its making so far contrary
to the declarants pecuniary or proprietary interest, or so far
tended to subject the declarant to civil or criminal liability, or to
render invalid a claim by the declarant against another, that a
reasonable person in the declarants position would not have
made the statement unless believing it to be true.728
The federal rule is very similar, but not identical.729 In Desai v.
Booker, a habeas case before the Sixth Circuit, the petitioner presented
721. Id. at 737, 835 N.W.2d at 41112 (citing Roper v. Simmons, 543 U.S. 551
(2005); Graham v. Florida, 560 U.S. 48 (2010); Miller v. Alabama, 132 S. Ct. 2455
(2012)).
722. Id. at 739, 835 N.W.2d at 413.
723. Id. (Cavanagh, J., dissenting).
724. Id.
725. Id. (quoting People v. Johnson, 517 N.E.2d 1070, 1074 (Ill. 1987)) (internal
quotation marks omitted).
726. Id. at 73940, 835 N.W.2d at 413.
727. MICH. R. EVID. 804(b)(3); FED. R. EVID. 804(b)(3).
728. Mich. R. EVID. 804(b)(3).
729. The federal rule provides that, in criminal cases, where the statements proponent
seeks to inculpate the declarant via the statement, there must be corroborating
circumstances [that] clearly indicate the trustworthiness of the statement . . . . FED. R.

2015]

EVIDENCE

789

the novel argument that a courts admission of allegedly unreliable nontestimonial hearsay730 violated his rights under the due process clauses.731
The Sixth Circuit rejected Jasubhai Desais contention that a trial courts
admission of a statement against interest implicated his due process
rights.732
Police found Anna Marie Turetzky dead due to strangulation in a
motel parking lot in 1983.733 Turetzky and the petitioner had jointly
operated medical clinics, but their relationship soured and even produced
physical fights.734
The police investigated but initially did not find enough evidence
to indict anyone for the crime. The prosecution eventually
learned of Lawrence Gorskis 1984 testimony before a federal
grand jury, which implicated Desai in Turetzkys murder. Gorski
and his friend, Stephen Adams, had both worked at Desais
clinic. Gorski testified that, before the murder, Adams had told
him more than once that Desai wanted Turetzky killed. After the
murder, Adams confessed to Gorski that he had killed Turetzky
for a few thousand dollars. Adams later visited Gorski in
Chicago and told Gorski he was on his way to Arizona because
Desai wanted him to leave Michigan.735
A Wayne County jury found Desai guilty of first-degree murder in
2001.736 After exhausting his appellate remedies in state court, Desai
proceeded to the U.S. District Court in Detroit, which granted Desais
petition for relief.737 The state appealed to the Sixth Circuit.738The sole
issue before the Sixth Circuit in this instance739 was whether Gorskis
testimony as to Adamss statement against interest (his confession) was
so unreliable as to render the trial courts admission of this hearsay as
EVID. 804(b)(3). The Michigan rule requires corroborating circumstances only in
criminal cases, and only when the statement both inculpates the declarant and exculpates
the accused. See MICH. R. EVID. 804(b)(3).
730. For the distinction between testimonial and non-testimonial hearsay, see the
discussion on the Confrontation Clause in Part VIII.F.
731. Desai v. Booker, 732 F.3d 628, 630 (6th Cir. 2013).
732. Id. at 62829.
733. Id. at 629.
734. Id.
735. Id.
736. Id. at 630.
737. Id.
738. Id.
739. Id. The case had a long and tortured history in the Michigan and federal courts,
dating to 1995. Id. at 62930.

790

WAYNE LAW REVIEW

[Vol. 60:687

violative of Desais due process rights.740 The Sixth Circuit panel

conceded that the U.S. Supreme Court h[e]ld out the possibility that the
introduction of evidence in general could be so extremely unfair that
its admission violates fundamental conceptions of justice.741 However,
the Supreme Court provided no definition of extremely unfair or
fundamental conceptions of justice.742 Rather, the panel observed, it is
the adversarial system, including the right to counsel, confrontation, and
a jury, along with the local rules of evidence, that generally protect an
individual against an unfair trial.743 Here, Judge Jeffrey S. Sutton, writing
for himself, Judge Deobrah L. Cook, and U.S. District Judge Thomas M.
Rose,744 saw no reason to conclude that Gorskis testimony as to
Adamss confession rendered the trial so unfair as to violate Desais
constitutional rights.745
First, inherent in the statements-against-interest exception is a wellestablished theory that such statements are reliable because individuals
do not lightly admit to committing murder.746 Second, Adamss
statements were voluntary and to a friend to whom he had previously
confessed crimes.747 Third, the petitioner challenged Gorskis credibility
through cross-examination and, in closing, squarely put[] the issue of
credibility in front of the jury and alleviat[ed] the risk of unfair prejudice
from the statements.748 Fourth, ample evidence corroborated the
statement, including Desais solicitation of another person to commit
murder, his motive to murder her, his visit to the crime scene, and
statements he made contemporaneous with the murder.749 Accordingly,
the unanimous panel reversed the federal district courts ruling that
granted Desais petition for a writ of habeas corpus.750
c. Forfeiture by Wrongdoing
Both the Michigan and federal rules follow the doctrine that a party
can forfeit a hearsay objection if it encouraged or engaged in wrongdoing
740. Id. at 630.
741. Id. at 631 (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)).
742. Id.
743. Id.
744. Id. at 62829. Rose, of the Southern District of Ohio, sat on the Sixth Circuit
panel by designation. Id.
745. Id. at 631.
746. Id. (citing People v. Desai, No. 294827, 2010 Mich. App. LEXIS 1605, at *2023
(Aug. 24, 2010); MICH. R. EVID. 804(b)(3)).
747. Id. (citing Desai, 2010 Mich. App. LEXIS 1605, at *34).
748. Id. (citing Desai, 2010 Mich. App. LEXIS 1605, at *36).
749. Id. (citing Desai, 2010 Mich. App. LEXIS 1605, at *3236).
750. Id. at 63233.

2015]

EVIDENCE

791

that rendered the declarant unavailable.751 Because the forfeiture-bywrongdoing principles in Rule 804 are essentially the same as the
forfeiture-by-wrongdoing exception to the Confrontation Clause of the
Sixth Amendment, I discuss forfeiture by wrongdoing in a subsequent
subsection of this Article.752
D. The Residual Exception
Brumley v. Albert E. Brumley & Sons, Inc.,753 a case I first discussed
in Part VIII.C.1.c, also provided the Sixth Circuit with a rare opportunity
to interpret a generally unsettled area of evidentiary law: the residual
exception to the hearsay rule. When an out-of-court statement does not
fall within one of the traditional hearsay exceptions in Rules 803 and
804, on rare occasions it might fall within the catch-all residual
exception.754 The federal exception appearing in Rule 807 allows the
court to admit hearsay statements if:
(1) the statement has equivalent circumstantial guarantees of
trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than
any other evidence that the proponent can obtain through
reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the
interests of justice.755
The Michigan exception appearing in Rule 803(24) is virtually
identical.756 In Brumley, the key question was whether a recorded
conversation between A.E. Brumley and his son, Albert E. Brumley Jr.,
fell within the residual exception.757 A transcript of the recording reads as
follows:

751.
752.
753.
2013).
754.
755.
756.
757.

MICH. R. EVID. 804(b)(6); FED. R. EVID. 804(b)(6).

See Part VII.F.1.
Brumley v. Albert E. Brumley & Sons, Inc., 727 F.3d 574, 57980 (6th Cir.
See FED. R. EVID. 807(a); MICH. R. EVID. 803(24).
FED. R. EVID. 807(a).
MICH. R. EVID. 803(24).
Brumley, 727 F.3d at 578.

792

WAYNE LAW REVIEW

[Vol. 60:687

Brumley, Sr.: Thats where I got started in the Hartfordthats

where I got started in the Hartford Musical Institute, which is
defunct now.
Albert, Jr.: And which you own now, the old Hartford
copyrights?
Brumley, Sr.: Yea, I sold some of the songs including Ill Fly
Away and two others for three dollars.758
The district court concluded that the recording fell within the
residual exception and admitted the recording, denying Robert
Brumleys motion in limine to exclude it.759 As the panel commenced its
analysis, it rejected the movants suggestion that in order for the
evidence to fall within the residual exception, the evidences proponent
need establish that the declarants truthfulness is so clear from the
surrounding circumstances that the test of cross-examination would be of
marginal utility . . . .760 Applying the rule to the recording, the panel
observed:
First, the statements should be considered more reliable than not
given that Brumley, Sr. and Brumley, Jr. are father and son and
not strangers. Second, there is no indication that Brumley, Sr.
lacked capacity at the time that he gave the statement. One may
argue that Brumley, Sr.s memory might have been impaired due
to the lapse of time between the Songs publication and the
statement, but it is just as reasonable to assume that Brumley, Sr.
would have accurately recalled the circumstances surrounding
the creation of his most successful song despite the lapse of time.
Third, Robert has not alleged that Brumley, Sr. was an untruthful
person. Fourth, the statement is clear and unambiguous. Finally,
the fact that Brumley, Jr. recorded the conversation adds an

758. Id. at 577.

759. Id.
760. Id. at 578 (quoting Idaho v. Wright, 497 U.S. 805, 820 (1990)) (internal quotation
marks omitted). In Wright, the test determined whether statements were admissible as not
violative of the defendants rights under the Confrontation Clause of the Sixth
Amendment. Wright, 497 U.S. at 815. The reader should note that, for Confrontation
Clause purposes, Wright is no longer good law, as it is progeny of Ohio v. Roberts, 448
U.S. 56 (1980), which the Supreme Court has overruled. Crawford v. Washington, 541
U.S. 36, 68 (2004).

2015]

EVIDENCE

793

element of formality, which suggests that Brumley, Sr. may have

given his statements added consideration.761
Accordingly, the Sixth Circuit found no abuse of discretion in the
districts decision to admit the recording and transcript prior to trial.762
As Brumley was an interlocutory appeal, the Sixth Circuits order
merely summarized the courts holdings as to the evidentiary decisions
and did not analyze the validity of the heirs termination notice.763 The
appellate court remanded the matter to the district court.764 The wording
of the opinion appears to give Robert an opening to file a motion for a
new trialand relitigate whether the songs were works made for
hirein light of the Sixth Circuits reversal of the district courts
decision to exclude the newspaper articles that supported Roberts
position.765
E. Hearsay in Summary Judgment Analysis
Before a civil case proceeds to trial, one or more of the parties may
seek to resolve the case (or part of the case) prior to trial by suggesting to
the court that there is no relevant factual dispute, and that the absence of
such a factual dispute entitles it to judgment as a matter of law.766 Under
federal law, the existence of any factual dispute militates against
summary judgment, as the trial court must view all the facts and the
inferences drawn therefrom in the light most favorable to the nonmoving
party.767
To establish that a factual dispute exists, however, the non-movant
must show that there is evidence in support of its factual position and
that the evidence is in admissible form.768 In both federal and Michigan
state courts, evidence in hearsay form is insufficient to establish a
genuine issue of fact.769

761. Brumley, 727 F.3d at 578.

762. Id. at 57879.
763. Id. at 580.
764. Id.
765. Id. (The evidentiary weight to be given to the challenged content in the articles
should have been left to the discretion of the jury . . . . (emphasis added)).
766. See FED. R. CIV. P. 56(a); MICH. CT. R. 2.116(C)(10).
767. Shazor v. Profl Transit Mgmt., 744 F.3d 948, 955 (6th Cir. 2014) (quoting Birch
v. Cuyahoga Cnty. Probate Ct., 392 F.3d 151, 157 (6th Cir. 2004)) (internal quotation
marks omitted).
768. Id. at 960 (citing Alpert v. United States, 481 F.3d 404, 409 (6th Cir. 2007)).
769. Back v. Nestle USA, Inc., 694 F.3d 571, 578 (6th Cir. 2012) (citing FED. R. EVID.
805); McCallum v. Dept of Corrs., 197 Mich. App. 589, 603, 396 N.W.2d 361, 368

794

WAYNE LAW REVIEW

[Vol. 60:687

Shazor v. Professional Transit Management concerned a government

contractors firing of its chief executive officer (CEO), and the ex-CEOs
claim that her employer fired her because she is a black
womanalleging both race and gender discrimination.770 The employer,
Professional Transit Management (PTM), contracted with the Cincinnati
areas regional transit authority to provide management of the agency.771
Marilyn Shazor, the plaintiff, was the general manager that PTM
designated to oversee the day-to-day operations of the Cincinatti
agency.772 Shortly after assuming her responsibilities, PTM officials and
Shazor came into conflict.773
The plaintiff, according to PTMs executives, failed to participate in
educational/training programming, and her general recalcitrance
suggested she was trying to cut PTM out of the loop of the transit
agencys management.774 PTM faulted her for not being a team player
and for requiring her subordinates to obtain her permission before they
communicated with PTM personnel.775 Internally, at least one of the
defendants executives referred to the plaintiff as a bitch.776
Matters came to a head when a local labor union began efforts to
organize some of the agencys employees.777 A member of the agencys
board suggested the board retain a PTM official, Thomas P. Hock (a codefendant with PTM), to consult with the agency on labor issues, but
Shazor replied that Hock was too busy working on other projects.778
This statement was a lie, the defendant contended, as the employee
was available and interested in consulting on labor relations with the
Cincinnati agency.779 Believing it had caught the plaintiff lying on this
and one other occasion, PTM fired Shazor.780 The plaintiff filed suit
under both federal and state civil rights law and common law in the U.S.
District Court for the Southern District of Ohio.781 While Shazor argued
there was both direct and circumstantial evidence of discrimination to

(1992) (citing Amorello v. Monsanto Corp., 186 Mich. App. 324, 329, 463 N.W.2d 487,
490 (1990); Pauley v. Hall, 124 Mich. App. 255, 262, 355 N.W.2d 197, 20001 (1983)).
770. Shazor, 744 F.3d at 954.
771. Id. at 950.
772. Id.
773. Id. at 951.
774. Id.
775. Id. at 95253.
776. Id. at 953.
777. Id.
778. Id. at 95354.
779. Id.
780. Id. at 954.
781. Id. at 948, 954.

2015]

EVIDENCE

795

survive summary judgment, the district court found neither and granted
the defendants motion for summary judgment.782
On appeal, a Sixth Circuit panel of Judge Eric L. Clay, writing for
himself, Judge R. Guy Cole Jr., and U.S. District Judge William O.
Bertelsman,783 sidestepped whether there was direct evidence of
discrimination but resolved the appeal by considering whether there was
sufficient circumstantial evidence of discrimination to survive summary
judgment.784
To survive summary judgment on a circumstantial case of
discrimination, federal case law requires that the plaintiff make an initial
showing that she was a member of a protected class who her employer
treated differently than members outside of the protected class.785 The
panel concluded that the plaintiff made this prima facie case.786
The burden then shifted to the defendants to advance a legitimate,
nondiscriminatory justification for her termination.787 The employer met
this burden with some evidence that Shazor had lied about a PTM
official being unable to consult on labor relations, and in denying that
she was involved in selecting a firm other than PTM to consult on the
same issues.788
The burden then reverted to the plaintiff to show (1) that the
proffered reasons had no basis in fact, (2) that the proffered reasons did
not actually motivate [her termination], or (3) that they were insufficient
to motivate discharge.789 The Sixth Circuit then observed that the
plaintiff had testified that her employers official had told her he was
unavailable to consult, and that she was not involved in the decision to
hire an entity other than PTM for that purpose.790
The defendants advanced Hocks testimony that the transit agencys
general counsel told him that Shazor, in fact, was involved in the
decision to hire an outside consultant.791 The appellate panel, however,
observed that Hocks testimony as to what the general counsel told him
782. Id. at 95459.
783. Bertelsman, of the Eastern District of Kentucky, sat by designation on the Sixth
Circuit panel. Id. at 949.
784. Id. at 95657.
785. Id. at 957 (citing Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir. 2012)).
786. Id. at 95759.
787. Id. at 959 (alteration in original) (emphasis omitted) (citing Davis v. Cintas Corp.,
717 F.3d 476, 491 (6th Cir. 2013)).
788. Id.
789. Id. (quoting Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 349 (6th Cir.
2012)).
790. Id. at 95960.
791. Id. at 960.

796

WAYNE LAW REVIEW

[Vol. 60:687

was hearsay to establish that the plaintiff actually lied.792 Defendants

cannot use these statements for their truth in a motion for summary
judgment any more than they could use them at trial.793 The Sixth
Circuit found that a genuine factual dispute existed as to the reason for
Shazors termination; the Sixth Circuit reversed the district courts grant
of summary judgment and remanded the matter.794
F. Testimonial Hearsay and the Confrontation Clause
Even if a statement is admissible pursuant to federal or state hearsay
exceptions, the Confrontation Clauses of the Sixth Amendment and the
Michigan Constitution still may render it inadmissible in criminal
cases.795 In the 2004 case of Crawford v. Washington,796 the U.S.
792. Id.
793. Id. (citing Sutherland v. Mich. Dept of Treasury, 344 F.3d 603, 61920 (6th Cir.
2003)). With or without Hocks hearsay testimony, there still appears to be a factual
dispute as to the employers motivations for firing Shazora textbook credibility dispute
for a jury to resolve. Accordingly, in my view, it was unnecessary for the panel to
consider whether Hocks testimony constituted hearsay.
794. Id. at 96061.
795. The Sixth Amendment to the U.S. Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall
have been committed, which district shall have been previously ascertained by
law, and to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance of Counsel for his
defence.
U.S. CONST. amend. VI (emphasis added). Similarly, the Michigan Constitution provides:
In every criminal prosecution, the accused shall have the right to a speedy and
public trial by an impartial jury, which may consist of less than 12 jurors in
prosecutions for misdemeanors punishable by imprisonment for not more than
1 year; to be informed of the nature of the accusation; to be confronted with the
witnesses against him or her; to have compulsory process for obtaining
witnesses in his or her favor; to have the assistance of counsel for his or her
defense; to have an appeal as a matter of right, except as provided by law an
appeal by an accused who pleads guilty or nolo contendere shall be by leave of
the court; and as provided by law, when the trial court so orders, to have such
reasonable assistance as may be necessary to perfect and prosecute an appeal.
MICH. CONST. art. I, 20 (emphasis added). The legislature has also codified a statutory
confrontation right in the Code of Criminal Procedure, which provides:
On the trial of every indictment or other criminal accusation, the party accused
shall be allowed to be heard by counsel and may defend himself, and he shall
have a right to produce witnesses and proofs in his favor, and meet the
witnesses who are produced against him face to face.
MICH. COMP. LAWS ANN. 763.1 (West 2014) (emphasis added). This introductory
material to the Confrontation Clause borrows heavily, if not entirely, from the previous
years Survey article on evidence. See Meizlish, supra note 3, at 117071.

2015]

EVIDENCE

797

Supreme Court discarded years of precedent797 and held that testimonial

statements of witnesses absent from trial [shall be] admitted only where
the declarant is unavailable, and only where the defendant has had a prior
opportunity to cross-examine.798
It necessarily follows that the limitation only applies to testimonial
statements.799 In the next major Confrontation Clause case, Davis v.
Washington, Justice Antonin G. Scalia explained the difference between
testimonial and nontestimonial statements:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.800
The Crawford Court also explained that the Confrontation Clause
does not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.801 In other words, a
proponent of certain testimony only has a confrontation problem if
testimony constitutes hearsay, because testimonial non-hearsay does not
trigger a confrontation problem.802
In People v. Henry, the armed-robbery case whose facts I discussed
in Part VIII.A.2, the court of appeals concluded that a detectives
testimony as to a confidential informants identification of the defendant
as the perpetrator was for a hearsay purposeto establish the truth of the
informants statement to the detective that defendant was the actual
796. Crawford v. Washington, 541 U.S. 36, 36 (2004).
797. Prior to Crawford, the Supreme Court held that the Confrontation Clause would
not bar the courts admission of a statement from a nontestifying witness in a criminal
case if a court was satisfied that the statement bears adequate indicia of reliability. Id.
at 40 (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)).
798. Id. at 59 (emphasis added).
799. Davis v. Washington, 547 U.S. 813, 821 (2006) (quoting Crawford, 541 U.S. at
5354).
800. Id. at 822.
801. Crawford, 541 U.S. at 59 n.9 (emphasis added) (citing Tennessee v. Street, 471
U.S. 409, 414 (1985)).
802. Note, however, that an objection on hearsay grounds generally will not preserve
for appellate purposes an objection on Confrontation Clause grounds. See, e.g., United
States v. Dukagjini, 326 F.3d 45, 60 (2d Cir. 2002); Greer v. Mitchell, 264 F.3d 663, 689
(6th Cir. 2001).

798

WAYNE LAW REVIEW

[Vol. 60:687

robber.803 The panel explained that the testimony necessarily implied

that the informant accused defendant of the first two robberies and that
McClean considered the informant credible. The primary purpose of
these statements was to establish[] or prov[e] past events potentially
relevant to later criminal prosecution, and as such, they were testimonial
in nature.804 Accordingly, because the statement was (a) testimonial, (b)
out of court, and (c) to establish the truth of the matter asserted, the
jurys hearing the statement violated the defendants Sixth Amendment
right to confront the witnesses against him.805 The panel further noted
that the trial court failed to give the jury a curative instruction, which
usually removes the taint of improper testimony.806
1. Forfeiture by Wrongdoing as a Hearsay Exception, and as an
Exception to the Confrontation Clause
The U.S. Supreme Court has recognized only one exception to the
Sixth Amendments prohibition on testimonial hearsay absent an
opportunity to cross-examine the declarant: the forfeiture-by-wrongdoing
doctrine.807 [F]orfeiture by wrongdoing has its roots in the common law,
and is based on the maxim that no one should be permitted to take
advantage of his wrong.808 In People v. Burns, the Michigan Supreme
Court held that the forfeiture doctrineas both an exception to the
Confrontation Clause, and an exception to the non-constitutional hearsay
ruleincorporates an element of specific intent that the defendant must
have had in mind the particular purpose of making the witness
unavailable.809 A unanimous court, emphasizing the wording of Rule
804 and tying the rules requirements to the constitutional exception,
explained, For the [forfeiture exception] to apply, a defendant must
have engaged in or encouraged wrongdoing that was intended to, and
did, procure the unavailability of the declarant as a witness.810
That the Michigan Supreme Court incorporated the constitutional
requirements of Giles into Rule 804(b)(6) means that the specific-intent
803. People v. Henry, 305 Mich. App. 127, 15455, 854 N.W.2d 114, 13233 (2014).
804. Id. at 154, 854 N.W.2d at 133 (alteration in original).
805. Id. at 15455, 854 N.W.2d at 133.
806. Id. (citing People v. Crawford, 458 Mich. 376, 399, 582 N.W.2d 785, 79697
(1998)).
807. People v. Burns, 494 Mich. 104, 11314, 832 N.W.2d 738, 744745 (2013)
(citing Giles v. California, 554 U.S. 353, 359, 366 (2008)).
808. Id. at 111, 832 N.W.2d at 742 (quoting Giles, 554 U.S. at 359, 366 (citing
Reynolds v. United States, 98 U.S. 145, 159 (1879))).
809. Id. at 112, 832 N.W.2d at 743 (quoting Giles, 554 U.S. at 367).
810. Id. at 113, 832 N.W.2d at 743 (alteration in original) (quoting MICH. R. EVID.
804(b)(6)).

2015]

EVIDENCE

799

requirement applies to all hearsay (testimonial and non-testimonial, in

criminal and civil cases).811 This is important, of course, because the
Confrontation Clause only applies to testimonial hearsay, and only in
criminal cases.812 In other words, if the federal or state rule drafters chose
to eliminate the specific-intent requirement for forfeiture by wrongdoing
in all civil cases, and for non-testimonial statements in criminal cases,
they can do so without amending the Constitution.813 Absent a
constitutional amendment (which is highly unlikely) or the U.S. Supreme
Court reinterpreting the Giles decision, however, the forfeiture by
wrongdoing doctrine would still require a showing of specific intent to
admit testimonial hearsay in criminal cases.
Provisions Applicable to Hearsay Statements
Criminal Cases
Federal or state
Testimonial
Statements hearsay rule of evidence

***Confrontation
Clause***
Federal or state
NonTestimonial hearsay rule of evidence
Statements

Civil Cases
Federal or state
hearsay
rule
of
evidence
Federal or state
hearsay
rule
of
evidence

Justice Bridget M. McCormack, writing on behalf of a unanimous

court, explained the elements of the forfeiture-by-wrongdoing doctrine:
[T]he prosecution must show by a preponderance of the evidence that:
(1) the defendant engaged in or encouraged wrongdoing; (2) the
wrongdoing was intended to procure the declarants unavailability; and
(3) the wrongdoing did procure the unavailability.814
a. People v. Burns
Discouraging a person from reporting a crime is not the kind of
wrongdoing that will trigger application of the forfeiture-bywrongdoing exception.815 In Burns, four-year-old CB made statements
to her bible-school teacher, a forensic sexual assault interviewer and a
811. Id. at 114, 832 N.W.2d at 74445.
812. Id. at n.34, 832 N.W.2d at n.34.
813. Id.
814. Id. at 115, 832 N.W.2d at 745 (citing People v. Jones, 270 Mich. App. 208, 217,
714 N.W.2d 362, 368 (2006)).
815. Id. at 11617, 832 N.W.2d at 74546.

800

WAYNE LAW REVIEW

[Vol. 60:687

sexual assault nurse examiner that her father, the defendant, had had
sexual contact with her.816 At trial, the teacher, Gonzales (whose first
name does not appear in the opinion) testified that CB had told her that
Dave Junior hurt her by licking and digitally penetrating her butt.817
However, despite multiple attempts to facilitate her testimony, CB left
the witness chair, hid under the podium, refused to answer questions
asked by the prosecutor, indicated that she would not tell the truth, stated
that she was fearful of the jury, and expressed a desire to leave the
courtroom.818 The trial court admitted the statements to Gonzalez, the
forensic interviewer, and the nurse, pursuant to the forfeiture-bywrongdoing hearsay exception (as Gonzalez was not in law-enforcement,
the statements did not appear to have implicated the Confrontation
Clause).819
The trial court had found the defendant responsible for wrongdoing
and that he forfeited his hearsay objection, after reviewing a recording of
CBs statements with the forensic interviewer.820 When asked if
defendant had said anything during the alleged abuse, CB stated that
defendant told her not to tell, and that [defendant] didnt want me to
tell nobody or else she would get in trouble.821
Burns took the stand in his own defense and denied committing any
abuse.822 Without any evidence substantiating the abuse other than the
victims hearsay statements, a Bay County jury convicted the defendant
of first-degree criminal sexual conduct, an offense for which the
maximum potential punishment is life.823 The court of appeals vacated
the conviction on evidentiary grounds, the primary basis for its decision
being that that the prosecution failed to lay a proper foundation to apply
the forfeiture-by-wrongdoing doctrine.824 The prosecution appealed to
the Michigan Supreme Court.825
For the purposes of the opinion, Justice McCormack did not dispute
that the prosecution established the first prong of the forfeiture doctrine,
that defendant did, in fact, engage in wrongdoing.826 The prosecution,
816. Id. at 107, 832 N.W.2d at 740.
817. Id. at 107, 832 N.W.2d at 741.
818. Id. at 108, 832 N.W.2d at 741.
819. Id. at 10809, 832 N.W.2d at 74143.
820. Id. Burns did not dispute on appeal the trial courts finding that CB was
unavailable for purpose of Rule 804 and the Confrontation Clause. Id. at 109 n.7.
821. Id. at 108, 832 N.W.2d at 741.
822. Id. at 109, 832 N.W.2d at 741.
823. Id. (citing MICH. COMP. LAWS ANN. 750.520b (West 2015)).
824. People v. Burns, No. 304403, 2012 Mich. App. LEXIS 1126, at *26 (June 14,
2012).
825. Burns, 494 Mich. at 109, 832 N.W.2d at 74142.
826. Id. at 115, 832 N.W.2d at 745.

2015]

EVIDENCE

801

however, failed to establish the second prong, that defendant intended

to . . . procure the unavailability of [CB] as a witness.827 The majority
noted that the threats were contemporaneous with the assaultive
contact, before the police investigation.828
Defendant immediately left the family home after Gonzales
reported the suspected abuse. He had no contact with CB
whatsoever once the conduct was reported, and nobody else
attempted on his behalf to influence CB not to testify. There is
no evidence or allegation that defendant attempted to influence
CB directly or indirectly apart from the contemporaneous
statements at issue.829
Merely discouraging a witness from reporting a crime is insufficient
to establish the specific-intent prong, the majority held.830
We interpret the specific intent requirement of MRE 804(b)(6)
to procure the unavailability of the declarant as a witnessas
requiring the prosecution to show that defendant acted with, at
least in part, the particular purpose to cause CBs unavailability,
rather than mere knowledge that the wrongdoing may cause the
witnesss unavailability.831
Finally, the supreme court observed, two facts cut against a finding
in favor of the prosecution as to the third prong. First, the defendants
behavior caused CBs unavailability.832 As the trial court recognized in
declaring CB unavailable, her inability to testify was based on her
infirmity, her youth, and her fear of testifying in open court.833
Second, while Burns had allegedly told CB not to tell anyone, that did
not stop her from reporting the incident to multiple persons.834
Accordingly, the high court vacated the conviction and remanded the
matter for a new trial.835
827. Id. (alteration in original) (quoting MICH. R. EVID. 804(b)(6)).
828. Id.
829. Id. at 11516, 832 N.W. 2d at 74546.
830. Id. at 11617, 832 N.W.2d at 74546.
831. Id. at 117, 832 N.W.2d at 746. Justice McCormack recommended that trial courts
make specific findings of fact as to each of the prongs of the forfeiture-by-wrongdoing
doctrine. Id. at 118 n.42, N.W.2d at 746 n.42.
832. Id. at 11819, 832 N.W.2d at 747.
833. Id. at 119, 832 N.W.2d at 747.
834. Id. at 11819, 832 N.W.2d at 747.
835. Id. at 120, 832 N.W.2d at 74748.

802

WAYNE LAW REVIEW

[Vol. 60:687

b. People v. Roscoe
A Michigan Court of Appeals panel applied Burns to a new set of
facts in People v. Roscoe, which involved a murder at an Ann Arbor car
dealership.836 I discussed the facts of the case in Part IV.B.1. The victim
identified defendant in hearsay statements on August 20, 23, and 26,
2006, but Roscoe challenged only the August 23, 2006 statement.837
The appellate panel, citing Burns, concluded that the prosecution
failed to establish that the murder resulted from the defendants intent to
render the victim unable to testify.838 [D]efendants action [sic] were as
consistent with the inference that his intention was that the breaking and
entering he was committing go undiscovered as they were with an
inference that he specifically intended to prevent the victim from
testifying.839 Accordingly, a unanimous panel of Judges Donald S.
Owens, Stephen L. Borrello, and Elizabeth L. Gleicher,840 in a per curiam
opinion, held that the trial court erred in admitting the August 23
statement
pursuant
to
the
forfeiture-by-wrongdoing
841
hearsay/confrontation exception. The court, however, did not reverse
Roscoes conviction, because the error was not outcome determinative
given the strength of the prosecutions case.842
IX. RULES 90103: AUTHENTICATION
The only significant change to the rules of authentication is a
statutory exception for certain documents in preliminary examinations in
felony criminal cases.843 I discuss this exception in Part VIII.C.1.f.
X. RULES 100108: THE BEST-EVIDENCE RULE, DUPLICATES, AND
SUMMARIES
There were no significant cases during the Survey period that
discussed the best-evidence rule or the related provisions in Rules 1001
through 1008.

836. People v. Roscoe, 303 Mich. App. 633, 63839, 846 N.W.2d 402, 40607 (2014).
837. Id. at 640, 846 N.W.2d at 407.
838. Id. at 64142, 846 N.W.2d at 408.
839. Id. at 641, 846 N.W.2d at 408 (citing Burns, 494 Mich. at 11617, 832 N.W.2d at
756 (2013)).
840. Id. at 63738, 846 N.W.2d at 406.
841. Id. at 642, 846 N.W.2d at 408.
842. Id. at 64243, 846 N.W.2d at 40809.
843. MICH. COMP. LAWS ANN. 766.11b (West 2015).

2015]

EVIDENCE

803

XI. RULES 110103: APPLICABILITY OF THE RULES OF EVIDENCE

Once a defendant stands convicted of a crime, a trial court must often
determine the amount of restitution the defendant owes the victim(s). To
that end, both Michigan and Sixth Circuit law is clear that the rules of
evidence do not apply at restitution hearings.844
Rule 1101 of the Michigan Rules of Evidence specifically provides
that they do not apply at [p]roceedings for . . . sentencing . . . .845 In
People v. Matzke, the Michigan Court of Appeals observed that, pursuant
to statute, a trial court has a duty to impose restitution at sentencing.846
Accordingly, because restitution is a part of the sentencing process
(where the rules are inapplicable), the rules of evidence do not apply in
restitution proceedings.847 A unanimous panel of Judge Michael J.
Riordan, writing for himself and Judges Patrick M. Meter and Deborah
A. Servitto,848 rejected the defendants contention that a sentencing
hearing [is] merely a perfunctory proceeding where the trial court enters
a judgment, supposedly unlike a restitution hearing where a trial court
considers evidence.849
A Saginaw County jury convicted Dennis Lee Matzke of one felony
count of larceny, $1,000 to $20,000, for his theft of a gas-oil separator.850
Although the victim recovered the separator and testified at trial that it:
worked before the crime, . . . after defendants actions, it was
tore up and bent. The victims grandson, who arrived at the
property shortly after the victim discovered defendant driving
away with the separator, testified that there were no holes in the
separator and that it was unbent before defendants actions.851
At the restitution hearing, Matzkes probation officer testified that
the victim received a $4,580 estimate from a company that could repair

844. People v. Matzke, 303 Mich. App. 281, 28485, 842 N.W.2d 557, 55960 (2013);
United States v. Ogden, 685 F.3d 600, 606 (6th Cir. 2012). I previously discussed Ogden
in the preceding Survey article on evidence. See Meizlish, supra note 3, at 1190.
845. Matzke, 303 Mich. App. at 28485, 842 N.W.2d at 55960 (citing MICH. R. EVID.
1101(b)(3)).
846. Id. (citing MICH. COMP. LAWS ANN. 780.766(2)).
847. Id.
848. Id. at 282, 287, 842 N.W.2d at 558, 561.
849. Id. at 284 n.1, 842 N.W.2d at 560 n.1.
850. Id. at 28283, 842 N.W.2d at 55859.
851. Id. at 283, 842 N.W.2d at 559.

804

WAYNE LAW REVIEW

[Vol. 60:687

the separator.852 The court ordered restitution in that amount, and the
defendant appealed.853
The appellate panel reviewed the trial courts decision for clear
error854 and concluded that a preponderance of evidence supported the
trial courts order.855 Accordingly, the court affirmed the trial judges
restitution order.856
XII. REBUTTAL EVIDENCE
As they sometimes do with impeachment evidence, Michigan courts
relax the rules of evidence when applying them to rebuttal evidence, after
a party has opened the door to a discussion of an issue by introducing
the issue himself.857 The Michigan Supreme Court explained in People v.
Figgures that [r]ebuttal evidence is admissible to contradict, repel,
explain or disprove evidence produced by the other party and tending
directly to weaken or impeach the same.858 However, contradictory
evidence is admissible only when it directly tends to disprove a witness
exact testimony.859
The recent U.S. Supreme Court case of Kansas v. Cheever860 nicely
outlines the principle behind rebuttal evidence. While a federal murder
prosecution was pending against him, the district court ordered Scott D.
Cheever to undergo a forensic psychiatric examination to assess his
proposed defense of voluntary intoxicationCheever contended his
ingestion of methamphetamine affected his ability to premeditate the
murder of a county sheriff.861 The federal court dismissed the case before
trial (for reasons that are unimportant to this Article), and the state
charged Cheever with capital murder.862
At trial, Cheevers counsel presented to the jury the dean of Auburn
Universitys pharmacy school, Roswell Lee Evans, who testified that the
852. Id.
853. Id.
854. Id. at 28384, 842 N.W.2d at 559 (citing People v. Allen, 295 Mich. App. 277,
281, 813 N.W.2d 806, 208 (2011)).
855. Id. at 28687, 842 N.W.2d at 56061.
856. Id. at 28687, 842 N.W.2d at 561.
857. People v. Figgures, 451 Mich. 390, 398400, 547 N.W.2d 673, 67778 (1996).
858. Id. at 399, 547 N.W.2d at 677 (citations omitted) (quoting People v. De Lano, 318
Mich. 557, 570, 28 N.W.2d 909, 914 (1947)).
859. City of Westland v. Okopski, 208 Mich. App. 66, 72, 527 N.W.2d 780, 785
(1994) (citing People v. McGillen, 392 Mich. 251, 26768, 220 N.W.2d 677, 684
(1974)).
860. 134 S. Ct. 596 (2013).
861. Id. at 599.
862. Id.

2015]

EVIDENCE

805

accuseds use of methamphetamine had damaged his brain and

rendered him, in the Supreme Courts characterization of the testimony,
acutely intoxicated.863 As rebuttal evidence, the government
introduced, over the defenses objection, the testimony of Michael
Welner, who had examined Cheever pursuant to the federal courts order
when the case was pending there.864 After Welners testimony, the jury
found Cheever guilty of murder and attempted murder and the court
imposed a death sentence.865 The Kansas Supreme Court vacated the
defendants conviction on the ground that the states introduction of
Welners testimony violated Cheevers Fifth Amendment privilege
against self-incrimination.866
Normally, the Self-Incrimination Clause of the Fifth Amendment
does prohibit the prosecution from introducing in its case-in-chief the
results of a court-ordered psychiatric examination of the defendant.867
However, the Supreme Court, in a unanimous opinion by Justice Sonia
M. Sotomayor,868 reaffirmed its prior holding in Buchanan v. Kentucky
that a State may introduce the results of a court-ordered mental
examination for the limited purpose of rebutting a mental-status
defense.869 Justice Sotomayor explained that [a]ny other rule would
undermine the adversarial process, allowing a defendant to provide the
jury, through an expert operating as proxy, with a one-sided and
potentially inaccurate view of his mental state at the time of the alleged
crime.870 In sum, the Court held, When a defendant presents evidence
through a psychological expert who has examined him, the government
likewise is permitted to use the only effective means of challenging that
evidence: testimony from an expert who has also examined him.871
Accordingly, the Supreme Court vacated the Kansas courts judgment
and reinstated Cheevers conviction.872
XIII. CONCLUSION
Beginning this decade, the Michigan Supreme Court has seen
significant changes in its makeup. New to the seven-member court since
863.
864.
865.
866.
867.
868.
869.
870.
871.
872.

Id.
Id. at 599600.
Id.
Id. at 600 (citing State v. Cheever, 284 P.3d 1007, 101920 (Kan. 2012)).
Id. at 60001 (citing Estelle v. Smith, 451 U.S. 454, 468 (1981)).
Id. at 598.
Id. at 600 (quoting Buchanan v. Kentucky, 483 U.S. 402, 423424 (1987)).
Id. at 601.
Id.
Id. at 603.

806

WAYNE LAW REVIEW

[Vol. 60:687

the elections of 2010 and 2012 are four membersJustices Mary Beth
Kelly, Brian K. Zahra, Bridget M. McCormack, and David F. Viviano.873
(A fifth, Richard H. Bernstein, joined the court in January 2015.874) Over
the last few years, both court members and outside observers note a great
degree of unanimity and collegiality that was lacking in prior years.875
Contemporaneously, readers probably have noticed that both the
Michigan Supreme Court and Michigan Court of Appeals have resolved
evidentiary disputes with zero acrimony and that unanimous opinions are
more the rule than the exception. The same is true in the Sixth Circuit.
However, one clear takeaway is that appellate courts are increasingly
instructing the lower courts to be more proactive in restricting parties
from introducing hearsay at trial and are less likely to conclude that a
statements proponent was offering the statements for a non-hearsay
purpose. Similarly, courts are less likely to admit other-acts evidence
absent a clear showing that the proponents purpose is not to establish a
persons character to commit those kinds of acts. Nevertheless, even
when they find error, the courts do not hesitate to affirm the result of a
case when the evidence is overwhelming. The lesson for practitioners is,
be mindful of the rules, lest your trial become the less-thanoverwhelming victory that does not survive appeal.
Having said that, thank you for reading this Article, and again, do not
hesitate to send feedback my way.

873. Justices,
MICH.
CTS.:
ONE
CT.
OF
JUST.,
http://courts.mi.gov/courts/michigansupremecourt/justices/pages/default.aspx (last visited
Mar. 4, 2015).
874. Carol Hopkins, Bernstein Ready to Take on Role as Nations First Blind Justice,
DAILY TRIB. (Nov. 7, 2014, 1:31 PM), http://www.dailytribune.com/generalnews/20141107/bernstein-ready-to-take-on-role-as-nations-first-blind-justice.
875. Tim Skubick, Michigan Supreme Court Gets Warm and Fuzzy, MICH. LIVE (Sept.
13,
2013,
8:11
AM),
http://www.mlive.com/politics/index.ssf/2013/09/tim_skubick_michigan_supreme_c.htm
l; Jonathan Keim, An Era of Unanimity on the Michigan Supreme Court?, NATL REV.
(Aug. 12, 2014, 2:31 PM), http://www.nationalreview.com/bench-memos/385208/eraunanimity-michigan-supreme-court-jonathan-keim.

INSURANCE LAW
JAMES T. MELLON
DAVID A. KOWALSKI
I. INTRODUCTION .................................................................................. 808
II. DECISIONS OF THE MICHIGAN SUPREME COURT ............................. 808
A. The No-Fault Act, MCL Sections 500.3101 et seq..................... 808
1. MCL 500.3113: Exclusion for A Motor Vehicle or
Motorcycle Which He or She Had Taken Unlawfully ..... 808
2. MCL 500.3114(1): A Relative of Either Domiciled in the
Same Household.............................................................. 810
3. MCL Section 500.3114(5): Double Dipping ................... 813
B. Statutory Appraisal and Case Evaluation Sanctions ................. 814
C. Legally Responsible in the Definition of an Insured......... 816
III. DECISIONS OF THE MICHIGAN COURT OF APPEALS ........................ 817
A. The No Fault Act: MCL Sections 500.3101 et seq..................... 817
1. MCL Section 500.3114(5): Injuries from a Motorcycle
Accident Where a Motor Vehicle Was Involved in the
Accident .......................................................................... 819
2. MCL Section 500.3163: Certification Regarding
Automobile Liability Policy Protections for Nonresidents 820
3. MCL 500.3148: Attorney Fees............................................. 821
B. FOIA and the Insurance Code ................................................... 822
C. Insurance Payments and Discounts as Collateral Sources... 823
D. Reciprocal States Within the Insurance Code....................... 825
E. Performance Bonds.................................................................... 826
F. Independent Medical Examinations and Medical Records
Access ...................................................................................... 827
G. Homeowners Insurance ............................................................. 828
H. Releases and Insurance Agents ................................................. 829
I. Burden of Proof on an Insurers Affirmative Defenses to a
Breach of Contract Action ....................................................... 831
J. Property Insurance ..................................................................... 832
K. Insurance Agents and Business Coverage ................................. 835
Principal, Mellon Pries, P.C. B.A., 1967, University of Detroit; M.A., 1970,
University of Detroit Mercy; J.D., 1973, University of Detroit Mercy; LL.M, 2003,
Wayne State University.
Associate, Mellon Pries, P.C. B.A., 2004, University of Michigan; J.D., 2007,
University of Detroit Mercy.

807

808

WAYNE LAW REVIEW

[Vol. 60:807

I. INTRODUCTION
Insurance touches us all in many ways, whether obvious or not. For
example, it facilitates commerce and allows us to shift risk from fire,
accident, property loss, personal and bodily injury, and the financial loss
associated with death. Insurance is an ever-present part of peoples daily
lives. These shifts have a cost felt by most individuals on at least a yearly
basis. Michigan is currently the home of the highest average automobile
insurance premium in the United States, at $2,551 per year.1 Further,
most Michigan citizens will likely see nearly 10% increases in health
insurance premiums for 2015.2 Court decisions regarding insurance
matters, therefore, have a real effect on Michigan citizens, even if most
individuals only consider insurance as a yearly premium.
II. DECISIONS OF THE MICHIGAN SUPREME COURT
A. The No-Fault Act, MCL Sections 500.3101 et seq.3
Automobiles are a part of everyday life, and it is therefore little
wonder that No-Fault Act cases frequently find themselves before the
appellate courts of this state.
1. MCL 500.3113: Exclusion for A Motor Vehicle or Motorcycle
Which He or She Had Taken Unlawfully4
For the second time in two years, the Michigan Supreme Court
considered the issue of joyriding and the taken unlawfully No-Fault
exclusion.5 Lejuan Rambin, who did not own a motor vehicle, was
1. Barbara Marquand, Car Insurance Rates by State, 2014 Edition, INSURE.COM,
http://www.insure.com/car-insurance/car-insurance-rates.html (last updated Feb. 21,
2014).
2. Michigan Health Insurers Propose Higher 2015 Rates, MLIVE (Jun. 27, 2014,
8:00
AM),
http://www.mlive.com/lansingnews/index.ssf/2014/06/michigan_health_insurers_propo.html.
3. MICH. COMP. LAWS ANN. 500.3101500.3179 (West 2015).
4. Id. 500.3113.
5. Rambin v. Allstate Ins. Co., 495 Mich. 316, 319, 852 N.W.2d 34, 35 (2014). The
Michigan Supreme Court stated in Rambin that in a previous case:
[w]e held a person injured while driving a motor vehicle that was taken
contrary to the express prohibition of the vehicle owner cannot receive PIP
benefits. We further held that any person who takes a vehicle contrary to a
provision of the Michigan Penal Codeincluding MCL 750.413 and MCL

2015]

INSURANCE LAW

809

operating a motorcycle owned and registered to Scott Hertzog when he

was involved in an accident with an uninsured motor vehicle.6 Mr.
Rambin asserted that he was entitled to No-Fault benefits from either Mr.
Hertzogs No-Fault insurer, Allstate Insurance Company, or from Titan
Insurance Company, which was assigned the claim by the Michigan
Assigned Claims Facility; both insurers claimed that Mr. Rambin was
barred from benefits because he had taken the motorcycle unlawfully.7
Mr. Rambin had joined a motorcycle club and was loaned a motorcycle
by another member, Andre Smith, for use in a club ride.8 In reality, the
motorcycle provided by Mr. Smith had been stolen from Mr. Hertzog
weeks prior.9 The trial court granted summary disposition to the No-Fault
insurers, but the Michigan Court of Appeals reversed, concluding that
from the point of view of Mr. Rambin, there had not been an unlawful
taking of the motorcycle.10
There was no question that MCL section 500.3113(a) precludes a
person from No-Fault benefits if [t]he person was using a motor vehicle
or motorcycle which he or she had taken unlawfully, unless the person
reasonably believed that he or she was entitled to take and use the
vehicle.11 The situation at issue did not fit within precedent because Mr.
Rambin claims he did not knowingly lack authority to take the
motorcycle because he believed that the person who gave him access to
the motorcycle was the rightful and legal owner of it.12 The question
was whether MCL section 750.414 was a strict liability crime, which is
generally disfavored because it presumes mens rea.13 Though the statute
applied without an intent to steal, that did not totally dispense with a
mens rea requirement.14 The phrase only dispensed with the specific
intent to permanently deprive the owner of his or her property and did
not dispense with an intent to take or use without authority.15 Mr.
Rambin was entitled to present evidence that he did not knowingly lack
750.414, informally known as the joyriding statuteshas taken the vehicle
unlawfully for purposes of MCL 500.3113(a).
Rambin, 495 Mich. at 319, 852 N.W.2d at 35 (quoting Spectrum Health Hosps. v. Farm
Bureau Mut. Ins. Co. of Mich., 492 Mich. 503, 509, 821 N.W.2d 117, 120 (2012)).
6. Rambin, 495 Mich. at 320321, 852 N.W.2d at 36.
7. Id. at 32122, 852 N.W.2d at 3637.
8. Id. at 32223, 852 N.W.2d at 37.
9. Id.
10. Id. at 32425, 852 N.W.2d at 38.
11. Id. at 326, 852 N.W.2d at 39 (quoting MICH. COMP. LAWS ANN. 500.3113(a)
(West 2015)).
12. Id. at 327, 852 N.W.2d at 39.
13. Id. at 32728, 852 N.W.2d at 3940.
14. Id. at 330, 852 N.W.2d at 41.
15. Id. at 331, 852 N.W.2d at 42.

810

WAYNE LAW REVIEW

[Vol. 60:807

authority to take the motorcycle, and, if true, that he had not taken the
motorcycle unlawfully.16 The Michigan Supreme Court was highly
skeptical of Mr. Rambins assertions but remanded for further
proceedings on that question of fact.17
2. MCL 500.3114(1): A Relative of Either Domiciled in the Same
Household18
In consolidated cases, the Michigan Supreme Court considered the
domicile of minor children of divorced parents for purposes of the NoFault Act.19 The first case involved a deceased minor, Josalyn, where
[t]he judgment of divorce granted Lawrence and Rosinski joint legal
custody . . . but Rosinski was given primary physical custody . . . .20
Lawrence was granted liberal parenting time.21 Josalyn was in a vehicle
driven by Rosinski when another driver ran a stop sign and struck the
Rosinski vehicle, killing Josalyn.22 Farm Bureau General Insurance of
Michigan (Farm Bureau) insured Rosinski, while Grange Insurance
Company (Grange) insured Lawrence; Grange denied coverage.23 In
the declaratory action between Farm Bureau and Grange, the trial court
concluded that Josalyn had two domiciles and therefore determined that
Farm Bureau and Grange were in the same order of priority.24 The
Michigan Court of Appeals affirmed, concluding that domicile and
residence for purposes of the No-Fault Act were legally
synonymous.25
The second case also involved a deceased minor, Sarah, with a
judgment of divorce that granted joint legal custody to both parents but
awarded physical custody to the father, Francis Campanelli; the mother,
Tina Taylor, was permitted reasonable visitation.26 Campanelli
subsequently moved the family to Tennessee and obtained an order
allowing him to change the childrens domicile to Tennessee, without
changing the joint legal custody.27 In 2007, sixteen-year-old Sarah stayed
16. Id. at 333, 852 N.W.2d at 43.
17. Id. at 336, 852 N.W.2d at 44.
18. MICH. COMP. LAWS ANN. 500.3114 (West 2015).
19. Grange Ins. Co. v. Lawrence, 494 Mich. 475, 481, 835 N.W.2d 363, 36566
(2013).
20. Id. at 482, 835 N.W.2d at 366.
21. Id.
22. Id.
23. Id. at 483, 835 N.W.2d at 367.
24. Id. at 48384, 835 N.W.2d at 367.
25. Id. at 485, 835 N.W.2d at 368.
26. Id. at 486, 835 N.W.2d at 36869.
27. Id.

2015]

INSURANCE LAW

811

with her mother for the summer and, with Campanellis permission,
remained with her mother in Michigan for the fall to attend school.28 In
November 2007, Sarah sustained fatal injuries while a passenger in a
friends automobile that was insured by State Farm Mutual Automobile
Insurance Company (State Farm).29 In a declaratory action between
State Farm and Automobile Club Insurance Association (ACIA), the
insurer of Sarahs uncle (with whom Sarah resided), the trial court
granted summary disposition to State Farm.30 The court of appeals
reversed, finding that a question of fact existed as to Sarahs domicile.31
The Michigan Supreme Court determined that domicile is a legal
term of art.32 The court noted:
For over 165 years, Michigan courts have defined domicile to
mean the place where a person has his true, fixed, permanent
home, and principal establishment, and to which, whenever he is
absent, he has the intention of returning. . . . In this regard, the
Court has recognized that [i]t may be laid down as a settled
maxim that every man must have such a national domicile
somewhere. It is equally well settled that no person can have
more than one such domicile, at one and the same time.33
A person may have multiple residences but only one domicile.34
Domicile is primarily a question of intent, when considering all facts.35
There was no indication that the legislature intended to depart from the
common law meaning when using domicile in the No-Fault Act.36 A
prior Michigan Supreme Court decision had concluded that the terms
domicile and residence are legally synonymous (except in special
circumstances).37 The court clarified that phrase as recognizing that
residence has sometimes been given the same meaning as domicile
but did not establish an absolute rule and, further, did not endorse the

28. Id. at 487, 835 N.W.2d at 369. Taylor was living with her great uncle, Terry
Graville, who was insured by Automobile Club Insurance Association (ACIA). Id.
29. Id.
30. Id. at 488, 835 N.W.2d at 36970.
31. Id. at 48889, 835 N.W.2d at 370.
32. Id. at 493, 835 N.W.2d at 372.
33. Id. at 49394, 835 N.W.2d at 372 (quoting In re High, 2 Doug. 515, 523 (Mich.
1847)).
34. Id. at 494, 835 N.W.2d at 372.
35. Id. at 495, 835 N.W.2d at 373.
36. Id. at 496, 835 N.W.2d at 37374.
37. Id. at 498, 835 N.W.2d at 375 (emphasis omitted) (quoting Workman v. Detroit
Auto. InterIns. Exch., 404 Mich. 477, 495, 274 N.W.2d 373, 379 (1979)).

812

WAYNE LAW REVIEW

[Vol. 60:807

corollary that domicile is to be given the same meaning as

residence.38 In fact, the corollary is untrue.39
Three ways exist to acquire a domicile: (1) domicile of origin or
of nativity; (2) domicile of choice; and (3) domicile by operation of
law.40 A child cannot attain a domicile of choice because a child lacks
capacity to make any such choice.41 Therefore, the childs intent is
simply irrelevant.42 Divorce can complicate matters, but Michigan courts
have long held that a childs domicile, upon the divorce or separation of
the childs parents, is the same as that of the parent to whose custody he
has been legally given pursuant to a custody order.43 A persons
domicile for one purpose is his domicile for all purposes.44 The Child
Custody Act, MCL sections 722.21 et seq., is consistent with these
common law principles.45 Further, [b]ecause parents are legally bound
by the terms of the custody order, the order therefore negates the parents
legal capacity, which is necessary to establish a domicile of choice for
the minor child that is different from that established in the custody
order.46 Accounting for all of these principles, courts presiding over an
insurance coverage dispute involving the minor child of divorced parents
must treat a custody order as conclusive evidence of a childs domicile,
and the pertinent inquiry is which parent has been given physical custody
of the minor.47 Therefore, the court concluded that the domicile of Joslyn
was with Rosinski, not Lawrence, and consequently, Lawrences insurer
was not liable.48 Regarding Sarah, her domicile remained in Tennessee
with her father, pursuant to the custody order, and therefore, the insurer
of her mothers household was not liable for No-Fault benefits.49

38. Id. at 49899, 835 N.W.2d at 37576.

39. Id. at 499, 835 N.W.2d at 375.
40. Id. at 501, 835 N.W.2d at 377.
41. Id. at 503, 835 N.W.2d at 37778.
42. Id. at 503, 835 N.W.2d at 377.
43. Id. at 504, 835 N.W.2d at 378; see In re Volk, 254 Mich. 25, 3132, 235 N.W.2d
854, 856 (1931), overruled in part on other grounds by Hentz v. Hentz, 371 Mich. 335,
123 N.W.2d 757 (1963).
44. Grange, 494 Mich. at 505, 835 N.W.2d at 379.
45. Id. at 506, 835 N.W.2d at 379.
46. Id. at 50809, 835 N.W.2d at 38081.
47. Id. at 511, 835 N.W.2d at 382.
48. Id. at 51314, 835 N.W.2d at 383.
49. Id. at 51415, 835 N.W.2d at 384.

2015]

INSURANCE LAW

813

3. MCL Section 500.3114(5): Double Dipping50

Double dipping refers to a situation where a claimants medical
expenses are paid by both a No-Fault provider and another insurer, with
the claimant being permitted to retain the extra payment for his own
use.51 The No-Fault Act permits insurers to offer coordinated benefits to
prevent a double recovery, and the insurance-purchasing public will be
given a reduced rate in return.52 The Michigan Supreme Court addressed
double dipping involving a motorcyclist, Brent Harris, who was struck
by a motor vehicle while operating his motorcycle.53 Mr. Harris
maintained health insurance with Blue Cross Blue Shield of Michigan
(BCBSM), and as Mr. Harris was operating a motorcycle at the time of
the accident, he would be entitled to any No-Fault benefits from the
insurer of the owner or registrant of the motor vehicle involved in the
accident, ACIA, pursuant to MCL section 500.3114(5)(a).54 Mr. Harris
sought to recover from both BCBSM and ACIA, expecting the former to
pay his medical bills and the latter to pay him directly, for the exact same
amounts.55 BCBSMs coverage was coordinated, so it denied coverage,
and ACIA paid Mr. Harriss medical providers.56 Mr. Harris filed a
complaint, naming BCBSM and ACIA, and the trial court ultimately
determined that ACIA was the primary insurer and that because the
BCBSM policy was coordinated, BCBSM did not owe anything.57 The
court of appeals reversed as to BCBSM because Mr. Harris had incurred
the expenseseven though the No-Fault insurer ultimately paid them
and because the trial court erred in determining that the BCBSM policy
coordinated with the No-Fault policy.58
The Michigan Supreme Court acknowledged that prior decisions
permitted a party electing uncoordinated No-Fault coverage the

50. MICH. COMP. LAWS ANN. 500.3114 (West 2015).

51. Nasser v. Auto Club Ins. Assn, 435 Mich. 33, 6162, 457 N.W.2d 637, 65051
(1990).
52. MICH. COMP. LAWS ANN. 500.3109a.
53. Harris v. Auto Club Ins. Assn, 494 Mich. 462, 46445, 835 N.W.2d 356, 35758
(2013).
54. Id. at 46566, 835 N.W.2d at 35758 (quoting MICH. COMP. LAWS ANN.
500.3114(5)(a)).
55. Id. at 466, 835 N.W.2d at 358.
56. Id. The Blue Cross policy provided, We do not pay for the following care and
services: Those for which you legally do not have to pay or for which you would not
have been charged if you did not have coverage under this certificate. Id. at 468, 835
N.W.2d at 358.
57. Id. at 46667, 835 N.W.2d at 35859.
58. Id. at 46869, 835 N.W.2d at 35960.

814

WAYNE LAW REVIEW

[Vol. 60:807

possibility of a double recovery.59 However, the case at issue was

different because Harris [was] not claiming benefits under a no-fault
insurance policy that he or anyone else procured. . . . Rather, Harriss
right to PIP benefits [arose] solely by statute.60 Thus, it was not the
uncoordinated ACIA policy, but operation of MCL 500.3114(5), which
created the entitlement to No-Fault.61 As a matter of law, not contract,
ACIA was liable for Mr. Harriss medical expenses, and
[t]his conclusion is consistent with [the courts] holding in Smith
[v. Physicians Health Plan, Inc., 444 Mich. 743, 514 N.W.2d
150 (1994)], where we concluded that an insured must pay a
premium to obtain insurance policies that provide for double
recovery. Harris has simply not shown that he paid the necessary
premiums to receive a double recovery.62
As Mr. Harris bore no legal liability related to the payment of the
medical expenses paid by ACIA, the contractual coordination of benefits
provision in the BCBSM policy applied and precluded double recovery.63
B. Statutory Appraisal and Case Evaluation Sanctions
Acorn Investment Company (Acorn) purchased insurance for
property in Detroit through Michigan Basic Property Insurance
Association (Michigan Basic) with an effective period of April 2007 to
April 2008.64 A fire damaged the property on May 27, 2007, and
Michigan Basic denied coverage because the policy was canceled as of
May 16, 2007.65 Acorn filed a declaratory judgment action based on an
Installment Payment Notice received May 11, 2007; Michigan Basic
responded that cancellation notices were sent April 16, 2007 and May
16, 2007 stating that the policy would be canceled May 16, 2007 because
the property was not eligible for coverage.66 Acorn was awarded $11,000
during case evaluation, which Acorn accepted and Michigan Basic
rejected.67 Acorn was granted summary disposition based on the
59. Id. at 470, 835 N.W.2d at 36061.
60. Id. at 47172, 835 N.W.2d at 361.
61. Id. at 472, 835 N.W.2d at 361.
62. Id.
63. Id. at 473, 835 N.W.2d at 362.
64. Acorn Inv. Co. v. Mich. Basic Prop. Ins. Assn, 495 Mich. 338, 343, 852 N.W.2d
22, 24 (2014).
65. Id.
66. Id. at 34344, 852 N.W.2d at 24.
67. Id. at 344, 852 N.W.2d at 25.

2015]

INSURANCE LAW

815

cancellation notices being statutorily deficient.68 Acorn moved to have

the issue of damages referred to a three-person appraisal panel, as
allowed by the policy and MCL section 500.2833(1)(m); the trial court
granted the motion.69 The appraisal panel awarded $20,877, and Acorn
objected that the amount failed to account for debris removal costs, as
permitted by the policy.70 Acorn moved for judgment based on the
appraisal amount plus interest, as permitted by statute, together with case
evaluation sanctions and the cost of debris removal not reflected in the
appraisal award.71 Michigan Basic did not contest the request for
judgment plus interest but challenged the imposition of case evaluation
sanctions and the cost of debris removal.72 The trial court denied the
request for case evaluation sanctions and for the cost of debris removal
and entered judgment for the appraisal amount plus $8,391.96 in
interest.73 The Michigan Court of Appeals affirmed.74
The Michigan Supreme Court accepted application for leave to
appeal to determine whether the judgment entered upon the appraisal
award constituted a verdict for purposes of case evaluation sanctions.75
For case evaluation purposes, verdict is defined as: (a) a jury verdict,
(b) a judgment by the court after a nonjury trial, [or] (c) a judgment
entered as a result of a ruling on a motion after rejection of the case
evaluation.76 The court noted that the dispute arose out of whether the
judgment entered came within subsection (c).77 The court listed three
factors that would entitle Acorn to case evaluation sanctions: (1) the
action proceeded to a judgment, (2) the judgment entered as a result of a
ruling on a motion, and (3) the judgment occurred after Michigan Basic
rejected the case evaluation.78 The court concluded that the case met all
three prongs of the test, entitling Acorn to its costs.79 Though the
judgment was not the result of a motion for summary disposition, it was
nonetheless the result of a motion, i.e., a motion for entry of judgment.80
The judgment, not the appraisal, resulted in final resolution of the rights
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.
80.

Id.
Id. at 34445, 852 N.W.2d at 2425.
Id. at 345, 852 N.W.2d at 25.
Id.
Id.
Id.
Id. at 346, 852 N.W.2d at 25.
Id. at 348, 852 N.W.2d at 27.
MICH. CT. R. 2.403(O)(2).
Acorn Inv. Co., 495 Mich. at 349, 852 N.W.2d at 27.
Id. at 350, 852 N.W.2d at 28.
Id. at 35051, 852 N.W.2d at 2829.
Id.

816

WAYNE LAW REVIEW

[Vol. 60:807

and liabilities of the parties.81 The appraisal was not akin to a settlement
because the circuit court retained authority to overturn the appraisal
award.82 Additionally, unlike a stipulated order of dismissal, the
judgment was a final determination of the rights and obligations by the
circuit court.83 When the judgment entered, the parties still did not agree
as to the proper amount of the appraisal award, so the action was not a
settlement.84 As to the debris removal expenses, there is a colorable
argument as to whether the appraisal panel was empowered to consider
such expenses as part of its award and, if it did have such authority,
whether it was error not to include those expenses in the award.85 The
court remanded the case for consideration of the debris removal issue.86
C. Legally Responsible in the Definition of an Insured
The Michigan Supreme Court peremptorily reversed the Michigan
Court of Appeals in a case involving a personal injury sustained in a
boating accident based on the definition of an insured in a policy
issued by Farm Bureau Mutual Insurance Company of Michigan.87
Nicholas Bowers was injured in a boating accident.88 The boat, owned by
Mr. Bowers parents, was being piloted by Mr. Bowers wife; the policy
excluded coverage for injury to individuals legally responsible for the
boat.89 The circuit court ruled in favor of Mr. Bowers.90 The Michigan
Court of Appeals noted that injury to any insured was excluded by the
policy, and insured was a defined term: (3) Any person or
organization (a) legally responsible for animals or watercraft owned by
an insured . . . but only in so far as . . . . that person or organization has
the custody or use of the animals or watercraft with the owners
permission.91
The policy did not define legally responsible.92 The Michigan
Court of Appeals looked to the commonly used meaning of the term;
81. Id. at 35152, 852 N.W.2d at 29.
82. Id. at 35152, 852 N.W.2d at 29.
83. Id. at 35556, 852 N.W.2d at 3031.
84. Id. at 356, 852 N.W.2d at 31.
85. Id. at 35859, 852 N.W.2d at 3233.
86. Id. at 359, 852 N.W.2d at 3233.
87. Farm Bureau Mut. Ins. Co. of Mich. v. Bowers, 495 Mich. 905, 839 N.W.2d 492
(2013).
88. Farm Bureau Mut. Ins. Co. of Mich. v. Bowers, 2013 WL 3455499 at *1 (Mich.
Ct. App. July 9, 2013).
89. Id.
90. Id.
91. Id. at *2.
92. Id. at *3.

2015]

INSURANCE LAW

817

relying on Michigan Supreme Court precedent and a Kentucky Supreme

Court case that it found persuasive, the court concluded that legally
responsible embraces liability imposed or arising according to law.93
While the driver of the boat had a legal responsibility to operate the boat
in a reasonable manner, Mr. Bowers was a passenger and bore no duty of
care relative to the boat.94 The insurer argued that Mr. Bowers was a
bailee and therefore legally responsible for the boat, but the Michigan
Court of Appeals determined that a question of law remained as to
whether a bailment existed.95 Further, even if Mr. Bowers was a bailee
when he took possession of the boat, a question of fact remained as to
whether he was legally responsible for the boat at the time of the
accident.96
The Michigan Supreme Court determined that a bailment existed as
a matter of law between the boats owners and the defendant Nicholas
Bowers. . . . He also had, as a matter of law, custody or use of the
watercraft at the time of the incident.97 Therefore, Mr. Bowers was an
insured within the meaning of the policy.98
III. DECISIONS OF THE MICHIGAN COURT OF APPEALS
The vast majority of cases decided by the Michigan Court of Appeals
are not officially published decisions. Unpublished decisions are not
binding on the Michigan Court of Appeals or circuit courts under the
principles of stare decisis, and therefore, such decisions are beyond the
scope of this survey.99
A. The No Fault Act: MCL Sections 500.3101 et seq.100
In a case that was primarily about the jurisdiction of the Michigan
Judicial District Courts, the Michigan Court of Appeals considered
several No-Fault cases brought by claimants and medical providers.101 In
short, the claimants and medical providers filed separate complaints in
93. Id. (citing Nationwide Mut. Ins. Co. v. Nolan, 10 S.W.3d 129, 132 (Ky. 1999);
Bailey v. Oakwood Hosp. & Med. Ctr., 472 Mich. 685, 696, 698 N.W.2d 374, 381
(2005)).
94. Id. at *4.
95. Id.
96. Id.
97. Farm Bureau Mut. Ins. Co. of Mich. v. Bowers, 495 Mich. 905, 839 N.W.2d 492
(2013).
98. Id.
99. MICH. CT. R. 7.215(C).
100. MICH. COMP. LAWS ANN. 500.3101500.3179 (West 2015).
101. Moody v. Home Owners Ins. Co., 304 Mich. App. 415, 849 N.W.2d 31 (2014).

818

WAYNE LAW REVIEW

[Vol. 60:807

the 36th District Court seeking No-Fault benefits from Home Owners
Insurance Company, which moved to consolidate the cases, without
objection.102 While the complaint by the claimant alleged benefits of less
than $25,000, after discovery the claimant offered proof of damages
greatly exceeding the jurisdictional limit; the claims of the providers
were less than $25,000.103 The trial court refused to dismiss or transfer
the actions; instead, it simply decided that whatever the jury awarded
would be reduced to the jurisdictional limit of $25,000.104
The Michigan Court of Appeals noted that while it is true that the
medical providers can bring an independent cause of action against a NoFault insurer, their claims are dependent on the claimant being able to
establish:
accidental bodily injury arising out of the . . . use of a motor
vehicle, MCL 500. 3105(1), that they provided reasonably
necessary products, services and accommodations for [Moodys]
care, recovery, or rehabilitation, MCL 500.3107 (1)(a), and that
at the time of the accident, Moody was domiciled in the same
household as his father who was insured by Home Owners,
MCL 500.3114 (1).105
Because the claims with respect to the No-Fault insurers liability
were identical and were consolidated for trial, the court consider[ed]
them merged for the purpose of determining the amount in controversy
under MCL 600.8301(1).106 In fact, the claimant could have brought all
the claims in a single case, and it is the claimants entitlement to benefits
that medical providers are allowed to assert.107 A claimant may waive a
claim for No-Fault benefits, and the medical provider is bound by that
waiver, with the providers remedy being an action against the
claimant.108 In this case, because the total of all claims of the claimant
and the providers exceeded the jurisdictional limit of the district court,
the entire judgment was void, and the providers claims could not be
severed.109 The court further found that it was reversible error for a
plaintiffs counsel to make comments regarding the assigned claims

102.
103.
104.
105.
106.
107.
108.
109.

Id. at 420, 849 N.W.2d at 36.

Id. at 42021, 849 N.W.2d at 3637.
Id. at 42026, 849 N.W.2d at 3639.
Id. at 44041, 849 N.W.2d at 46.
Id. at 441, 849 N.W.2d at 4647.
Id. at 442, 849 N.W.2d at 47.
Id. at 44243, 849 N.W.2d at 4748.
Id.

2015]

INSURANCE LAW

819

facility, which were incorrect and irrelevant during opening argument.110

Such comments warranted a new trial.111
1. MCL Section 500.3114(5): Injuries from a Motorcycle Accident
Where a Motor Vehicle Was Involved in the Accident 112
While traveling nearly 100 miles per hour, a motorcyclist saw
headlights near an intersection and, in applying his brakes to avoid a
collision, lost control of the motorcycle.113 The Detroit Medical Center
(DMC), which treated the motorcyclist, brought suit against Progressive
Michigan Insurance Company, the No-Fault insurer of the owner of the
motorcycle and, after a bench trial, judgment was entered in favor of
DMC.114
The Michigan Court of Appeals began with the frequent conclusion
that a motorcycle is not within the definition of a motor vehicle for
purposes of No-Fault and that motorcyclists are only entitled to coverage
for injuries arising out of the ownership, operation, maintenance or use
of a motor vehicle as a motor vehicle.115 While proximate causation
between an injury and a motor vehicle is not required, there must still be
causation which is more than incidental, fortuitous or but for.116
Further, the motor vehicle must actively, as opposed to passively,
contribute to the accident . . . .117 The court concluded that the
connection was insufficient, as it was incidental, fortuitous, or but
for.118 There was no evidence the motorcyclist needed to take evasive
action to avoid the vehicle associated with the headlights, but rather:
that the motorcyclist was startled when he saw the approaching
headlights and overreacted to the situation. And while fault is not
a relevant consideration in determining whether a motor vehicle
is involved in an accident for purposes of no-fault benefits, we
believe that principle is limited to not considering fault in the
110. Id. at 44647, 849 N.W.2d at 4950.
111. Id. at 447, 849 N.W.2d at 50.
112. MICH. COMP. LAWS ANN. 500.3114(5) (West 2015).
113. Detroit Med. Ctr. v. Progressive Mich. Ins. Co., 302 Mich. App. 392, 39394, 838
N.W.2d 910, 91213 (2013).
114. Id. at 394, 838 N.W.2d at 913.
115. Id. at 39495, 838 N.W.2d at 913 (quoting MICH. COMP. LAWS ANN.
500.3105(1)).
116. Id. at 395, 838 N.W.2d at 913 (quoting Kangas v. Aetna Cas. & Sur. Co., 64
Mich. App. 1, 17, 235 N.W.2d 42, 50 (1975)).
117. Id. at 396 (quoting Turner v. Auto Club Ins. Assn, 448 Mich. 22, 39, 528 N.W.2d
681, 689 (1995)).
118. Id. at 397, 838 N.W.2d at 914.

820

WAYNE LAW REVIEW

[Vol. 60:807

cause of the accident, not whether the motor vehicle was actually
involved in the accident. That is, had the motorcycle actually
collided with the motor vehicle, we would not consider whether
the motorcyclist or the motor vehicle driver was at fault in
causing the accident, nor would we consider whether the
motorcyclist could have taken evasive action and avoided the
accident. But, where there is no actual collision between the
motorcycle and the motor vehicle, we cannot say that the motor
vehicle was involved in the accident merely because of the
motorcyclists subjective, erroneous perceived need to react to
the motor vehicle.119
Subjective need would not suffice.120
2. MCL Section 500.3163: Certification Regarding Automobile
Liability Policy Protections for Nonresidents121
James Perkins, a Kentucky resident, was riding his motorcycle on a
Michigan highway when he collided with a motor vehicle operated by
Michigan resident Sarah Kaplan.122 State Farm insured Mr. Perkins
motor vehicles in Kentucky; his motorcycle was insured with
Progressive Northern Insurance Company (Progressive Northern), and
Auto-Owners Insurance Company (Auto-Owners) insured Ms.
Kaplans vehicle.123 The trial court granted State Farm and Progressive
Northern summary disposition and ruled that Auto-Owners was obligated
to provide Michigan No-Fault benefits to Mr. Perkins.124
Auto-Owners sole argument was that Mr. Perkins was not entitled to
No-Fault benefits because his motorcycle insurer had not filed a
certificate in compliance with MCL section 500.3163, and consequently,
MCL section 500.3113(c) applied;125 the statute excludes a person from
No-Fault benefits if [t]he person was not a resident of this state, was an
occupant of a motor vehicle or motorcycle not registered in this state,
and was not insured by an insurer which has filed a certification in

119. Id. at 398, 838 N.W.2d at 915 (citations omitted).

120. Id. at 399, 838 N.W.2d at 915.
121. MICH. COMP. LAWS ANN. 500.3163 (West 2015).
122. Perkins v. Auto-Owners Ins. Co., 301 Mich. App. 658, 660, 837 N.W.2d 32, 33
(2013).
123. Id. at 66061, 837 N.W.2d at 33.
124. Id. at 661, 837 N.W.2d at 33.
125. Id. at 66163, 837 N.W.2d at 3435 (quoting MICH. COMP. LAWS ANN.
500.3163, 500.3113(c)).

2015]

INSURANCE LAW

821

compliance with section 3163.126 Mr. Perkins motor vehicle insurer,

State Farm, had filed the certification required by MCL section
500.3163.127
The Michigan Court of Appeals noted that the purpose of MCL
section 500.3113(c) is to prevent benefits provided by Michigans
scheme from going to someone who has not paid a premium for the
same.128 Precedential case law failed to address the situation where the
out-of-state injured party owned, but was not occupying, his certified
vehicle at the time of the accident.129 In short, Mr. Perkins paid into the
system through the motor vehicle he insured with State Farm, thereby
satisfying the purpose of the exclusion.130 Also, on a more basic level,
motorcycles are, by definition, not motor vehicles subject to the NoFault Act, but riders may still be entitled to No-Fault benefits if injured
in an accident involving a motor vehicle.131 The motorcycle insurer is
never required to pay No-Fault benefits through its policy.132 MCL
section 500.3163 does not require that the motor vehicle being operated
by the non-resident be the one that is covered under the terms of a
foreign insurance policy.133
3. MCL 500.3148: Attorney Fees134
In the same case involving Mr. Perkins, supra, the Michigan Court of
Appeals also addressed the propriety of awarding attorney fees.135 AutoOwners argued that its refusal to pay benefits was not unreasonable, as it
presented a legitimate issue of statutory construction regarding MCL
section 500.3113(c).136 Though a court may ultimately decide that an
insurer is obligated to provide benefits, that does not, per se, make the
initial refusal to pay benefits unreasonable so as to trigger attorney fees
126. Id. at 66162, 837 N.W.2d at 3334 (quoting MICH. COMP. LAWS ANN.
500.3113(c)).
127. Id. at 66364, 837 N.W.2d at 3435.
128. Id. at 664, 837 N.W.2d at 35 (quoting Gersten v. Blackwell, 111 Mich. App. 418,
424, 314 N.W.2d 645, 648 (1981)).
129. Id.
130. Id. at 665, 837 N.W.2d at 35.
131. Id. at 665, 837 N.W.2d at 3536.
132. Id. at 66566, 837 N.W.2d at 3536 (citing MICH. COMP. LAWS ANN.
500.3114(5) (West 2015)).
133. Id. at 66667, 837 N.W.2d at 3637 (quoting Transport Ins. Co. v. Home Ins. Co.,
134 Mich. App. 645, 651, 352 N.W.2d 701, 704 (1984)).
134. MICH. COMP. LAWS ANN. 500.3148.
135. Perkins v. Auto-Owners Ins. Co., 301 Mich. App. 658, 66768, 837 N.W.2d 32,
3637 (2013).
136. Id. at 668, 837 N.W.2d at 38.

822

WAYNE LAW REVIEW

[Vol. 60:807

pursuant to MCL section 500.3148(1).137 However, in this case, none of

the cases relied upon by Auto-Owners were on point, and nothing in the
statutory language requires that the out-of-state vehicle occupied by the
claimant must be the vehicle for which an insurer has filed certification,
pursuant to MCL section 500.3163.138 Auto-Owners failed to provide any
support for its interpretation of the statute at issue, and the presentation
of an issue of first impression alone will not suffice.139 Therefore, an
award of attorney fees against Auto-Owners was proper.140
B. FOIA and the Insurance Code
The Michigan Court of Appeals considered whether the records of
the Michigan Catastrophic Claims Association (MCCA) were public
records.141 A private group sought to inspect the records of the MCCA
pursuant to the Michigan Freedom of Information Act (FOIA), MCL
sections 15.231 et seq.,142 seeking information related to ages of
claimants, dates of injuries, dates of claim closures, and total amounts
paid.143 The MCCA was created by statute to reimburse No-Fault
insurers for certain substantial losses.144 The MCCA denied the request,
citing MCL section 500.134, which exempts a record of an association
or facility from disclosure pursuant to FOIA, and which defines an
association or facility, in part, as [t]he catastrophic claims
association.145 The trial court ordered the records disclosed.146
The Michigan Court of Appeals concluded that even if the MCCA
was a public body, as defined by FOIA, its records are expressly
exempt from disclosure by MCL section 500.134.147 The trial court failed
to apply the plain statutory language.148 The fact that the exemption
states a record while FOIA refers to records is of no import, as the
use of the indefinite article a . . . clearly indicates its intent to exempt
all of the MCCAs records in general.149 MCL section 500.134 did not
137. Id. at 668, 837 N.W.2d at 3738.
138. Id. at 66869, 837 N.W.2d at 3738.
139. Id. at 669, 837 N.W.2d at 38.
140. Id.
141. Coal. Protecting Auto No-Fault v. Mich. Catastrophic Claims Assn, 305 Mich.
App. 301, 304, 852 N.W.2d 229, 23233 (2014).
142. MICH. COMP. LAWS ANN. 15.23115.246 (West 2015).
143. Coal. Protecting Auto No-Fault, 305 Mich. App. at 304, 852 N.W.2d at 23233.
144. Id.
145. Id. at 305, 852 N.W.2d at 233 (quoting MICH. COMP. LAWS ANN. 500.134).
146. Id. at 307, 852 N.W.2d at 234.
147. Id. at 309, 852 N.W.2d at 235.
148. Id. at 310, 852 N.W.2d at 23536.
149. Id. at 311, 852 N.W.2d at 236 (citations omitted).

2015]

INSURANCE LAW

823

alter FOIA, as FOIA itself contemplates statutory exemptions,

eliminating any need to reenact and republish FOIA as part of the
exemption.150 Further, the decision in Shavers v. Kelley,151 which
addressed the constitutionality of the No-Fault Act, was inapplicable as
the defects identified in Shavers had long since been corrected, and the
concerns raised were not present on these facts.152 Furthermore, Shavers
does not grant policyholders access to every constituent part of the
premium paid, but just requires disclosure related to certain ratemaking
criteria to ensure fairness.153 The court further determined that FOIA and
MCL section 500.134 preempt any common law right to access
records.154 Further, the case law relied upon by the record seeker,
Nowack v. Fuller,155 addressed a common law right to private, not public,
records; therefore, even if MCCA is a private entity, there is no right to
access its records.156 Further, the court rejected theories of resulting and
constructive trusts as inapplicable to the MCCAs records.157
C. Insurance Payments and Discounts as Collateral Sources
Makenzie Greer sustained a traumatic injury at birth, resulting in
injury to her and derivative injury to her mother and father.158 At trial,
medical invoices of $425,533.75 were introduced, were not disputed, and
formed the basis for the jurys award of past medical care damages.159
Prior to entry of judgment, the defendants moved to reduce the damage
award by the amounts paid by a settling defendant and to reduce the
amounts for past medical expenses to the amounts insurance actually
paid, and for which a lien was asserted, not the amounts billed by the
providers.160 The trial court denied the motion relative to the reduction
based on the amounts actually paid by insurance and permitted only a
partial common law set off for the amounts paid by the settling co150. Id. at 31314, 852 N.W.2d at 237.
151. Shavers v. Kelley, 402 Mich. 554, 267 N.W.2d 72 (1978).
152. Coal. Protecting Auto No-Fault, 305 Mich. App. at 317, 852 N.W.2d at 23940.
Further, unlike Shavers, the MCCAs premiums are paid by member insurers, not the
public, and the MCCA is already subject to detailed regulations. Id. at 31718, 852
N.W.2d at 23940.
153. Id. at 318, 852 N.W.2d at 240.
154. Id. at 319, 852 N.W.2d at 240.
155. Nowack v. Fuller, 243 Mich. 200, 219 N.W. 749 (1928).
156. Coal. Protecting Auto No-Fault, 305 Mich. App. at 322, 852 N.W.2d at 242.
157. Id. at 32526, 852 N.W.2d at 24344.
158. Greer v. Advantage Health, 305 Mich. App. 192, 196, 852 N.W.2d 198, 200
(2014).
159. Id. at 19697, 852 N.W.2d at 20001.
160. Id. at 197, 852 N.W.2d at 201.

824

WAYNE LAW REVIEW

[Vol. 60:807

tortfeasor because that settlement was paid to Makenzie and her parents
as co-plaintiffs, and the verdict as to the remaining defendants was only
for injury to Makenzie.161
The court of appeals determined that the trial court erred in
permitting the partial common law set off because the complaint was
brought against all defendants concerning a single incident, the birth of
Makenzie, and did not apportion the settlement among the separate
claims of the plaintiffs.162 Where liability is joint and several, as would
be the case on these facts, any settlement must be offset against the
amount of injury determined to represent all of the plaintiffs damages.163
[A]pportionment of an indivisible lump-sum settlement into partial,
severable settlements for each plaintiff is not permitted.164 Additionally,
if apportionment was necessary, it should be in accord with the
determination of the jury, valuing the parents claims at $0, which would
make their portion of the settlement $0 as well.165
As to the insurance discounts, those amounts do fit within the
definition of collateral source, but an exception exists if the
contractual lien [of the collateral source] has been exercised.166 The
statute does not specify that the exception is limited to the amount of the
lien exercised or the amount actually paid by the collateral source.167 The
collateral source statute is in partial derogation of the common law rule
and is therefore strictly construed so as to make the least change to the
common law.168
It is undisputed that each insurance company that discharged
plaintiffs medical expenses, in part by cash payment and in part
by an insurance discount, also was entitled by contract to a lien
against the proceeds of plaintiffs civil action and exercised
[the lien] pursuant to subsection (3). MCL 600.6303(4). Thus,
applying the plain terms of the last sentence of 6303(4)
compels the conclusion that both the cash payments and
discount, i.e., the benefits received or receivable from an
insurance policy, are excluded as statutory collateral source
benefits. This reading of the statutes plain terms makes the
161. Id. at 19798, 852 N.W.2d at 20102.
162. Id. at 203, 852 N.W.2d at 204.
163. Id. at 20304, 852 N.W.2d at 20405.
164. Id. at 204, 852 N.W.2d at 205.
165. Id. at 206, 852 N.W.2d at 20506.
166. Id. at 20607, 852 N.W.2d at 206 (emphasis omitted) (quoting MICH. COMP.
LAWS ANN. 600.6303(4) (West 2014)).
167. Id. at 207, 852 N.W.2d at 206.
168. Id.

2015]

INSURANCE LAW

825

least change in the common law. Velez [v. Tuma], 492 Mich 1,
17; 821 N.W.2d 432 (2011). The Legislature could have, but did
not, write the statute to say that the 6303(4) collateral source
exclusion is limited to the amount of a validly exercised
lien.169
Thus, regardless of the lien amount actually exercised, the exclusion
applies to all amounts paid or payable, which includes both amounts
the insurer actually paid and amounts realized as a discount obtained by
the insurer with the medical provider.170
D. Reciprocal States Within the Insurance Code
In May 2002, Allstate Painting and Contracting contracted with the
Michigan Department of Transportation (MDOT) to perform certain
Mackinac Bridge maintenance work.171 American Motorists Insurance
Company (AMICO) provided a performance bond for the work, which
included a two-year warranty period.172 One month prior to the
expiration of the warranty period, an inspection determined the work was
deficient, and the defects were not corrected, resulting in a lawsuit.173
AMICO moved to stay the proceedings because its parent was the
subject of an order for rehabilitation in an Illinois state court, and
AMICO was to be the subject of a separate order for rehabilitation to be
entered shortly thereafter.174 AMICO moved to dismiss based on the
order of rehabilitation, which prohibited parties from bringing or further
prosecuting claims against AMICOs parent, except as they arise in or
are brought into the rehabilitation proceedings.175 The motion was
denied, and while an application for leave was pending with the
Michigan Court of Appeals, the Illinois state court entered an order of
liquidation against AMICO.176
The Michigan Court of Appeals granted the application for leave to
appeal.177 It concluded that MCL section 500.8156(1) controlled the
case: In a liquidation proceeding in a reciprocal state against an insurer
169. Greer, 305 Mich. App. at 212, 852 N.W.2d at 209.
170. Id. at 213, 852 N.W.2d at 209.
171. Dept of Transp. v. Am. Motorists Ins. Co., 305 Mich. App. 250, 251, 852
N.W.2d 645, 646 (2014).
172. Id.
173. Id. at 252, 852 N.W.2d at 64647.
174. Id.
175. Id. at 25253, 852 N.W.2d at 64647.
176. Id. at 253, 852 N.W.2d at 647.
177. Id. at 25354, 852 N.W.2d at 647.

826

WAYNE LAW REVIEW

[Vol. 60:807

domiciled in that state, claimants against the insurer who reside within
this state may file claims either with the ancillary receiver, if any, in this
state or with the domiciliary liquidator.178 The issue was whether
Illinois qualified as a reciprocal state, as used in MCL section
500.8156(1), and if it did so qualify, MDOTs only claim would be in
Illinois, as no ancillary receiver was appointed in Michigan.179 A
reciprocal state must meet three factors:
(i) In substance and effect [MCL 500.8118(1), 8152, 8153, 8155,
8156, and 8157] are in force.
(ii) Provisions requiring that the commissioner or equivalent
official be the receiver of a delinquent insurer are in force.
(iii) Some provision for the avoidance of fraudulent conveyances
and preferential transfers are in force.180
In this case, Illinois has a statute substantively similar to that of
Michigan for the first requirement; Illinois provides that the director of
insurance is the receiver, satisfying the second requirement; and Illinois
prohibits fraudulent conveyances and preferential transfers as
voidable.181 Therefore, Illinois is a reciprocal state, and all claims must
be filed with the Illinois liquidator because there is no ancillary receiver
in Michigan.182
E. Performance Bonds
The Livingston County Board of Public Works (County) engaged
Northline Excavating, Inc. (Northline) to complete a sanitary sewer
project in 2007 and required a liquidated damages provision of $1,000
per day for tardy completion, as well as a performance bond in the
contract amount of $251,035.183 Northline encountered difficulties in
construction, and the County rejected Northlines plans of action as to
how to complete the contract.184 The County declared that Northline was
178. Id. at 254, 852 N.W.2d at 64748.
179. Id. at 25455, 852 N.W.2d at 648.
180. Id. at 255, 852 N.W.2d at 648 (quoting MICH. COMP. LAWS ANN. 500.8103(l)
(West 2015)).
181. Id. at 25556, 852 N.W.2d at 64849.
182. Id. at 257, 852 N.W.2d at 649.
183. Northline Excavating, Inc. v. Livingston Cnty., 302 Mich. App. 621, 62223, 839
N.W.2d 693, 69495 (2013).
184. Id. at 626, 839 N.W.2d at 69697.

2015]

INSURANCE LAW

827

in default, terminated the contract, and notified the bond insurer,

Hanover Insurance Company.185 Hanover denied liability, and the
County brought suit against Northline and Hanover.186 Hanover moved
for, and was granted, a limitation of its liability to the penal sum recited
in the bond, as to all damages, including actual, liquidated, and attorney
fees.187
The Michigan Court of Appeals noted that the performance bond at
issue is required by MCL section 129.201.188 Pursuant to a long line of
cases, Michigan recognizes that the surety is liable for the amount of the
bond.189 Therefore, the court will not presume that Hanovers liability is
greater than the amount of the bond unless the contract language plainly
expresses the parties intent to expand Hanovers liability contrary to the
general interpretation and understanding of performance bonds.190
Though the performance bond entitles the owner to any available
remedy, this does not expand the liability of the surety beyond the
amount of the bond, for to do so would conflate the term remedy with
the term damages.191 No language of the bond explicitly extends the
liability of the surety beyond the face value of the bond, and the trial
court did not err in so concluding.192
F. Independent Medical Examinations and Medical Records Access
Though the case arose in the context of a Workers Compensation
Act claim, the Michigan Court of Appeals has addressed when an
insurance claimant must be given access to records regarding an
independent medical examination (IME).193 The court of appeals
concluded that the purpose of an IME differs from the typical
relationship between physician and patient, as the physicians goal is to
gather information for a third party, not to diagnose or treat a patient.194
Where the purpose of an examination is not some sort of diagnostic or
treatment service for the treatment and betterment of the patient, the
185. Id.
186. Id. at 626, 839 N.W.2d at 696.
187. Id. at 627, 839 N.W.2d at 697.
188. Id. at 628, 839 N.W.2d at 69798 (citing MICH. COMP. LAWS ANN. 129.201
(West 2015)).
189. Id. at 629, 839 N.W.2d at 698.
190. Id.
191. Id. at 63031, 839 N.W.2d at 69899.
192. Id. at 631, 839 N.W.2d at 699.
193. Paul v. Glendale Neurological Assocs., 304 Mich. App. 357, 848 N.W.2d 400
(2014).
194. Id. at 36465, 848 N.W.2d at 404.

828

WAYNE LAW REVIEW

[Vol. 60:807

examinee is not entitled to records pursuant to the Medical Records

Access Act, MCL sections 333.26261 et seq.195
G. Homeowners Insurance
Toni Hall was killed when a trailer, being towed by a van driven by
Thomas Dells, separated and crashed into Ms. Halls vehicle.196 Pioneer
State Mutual Insurance Company (Pioneer) issued a policy of
homeowners insurance to Mr. Dells, which excluded coverage related to
the use of motor vehicles or trailers, but contained an exception for a
trailer not towed.197 The trailer, with the hitch, separated from the van
and careened into oncoming traffic, striking Ms. Halls vehicle and
killing her.198 Pioneer commenced an action for a declaratory judgment,
asserting that there was no coverage under its policy.199 The trial court
granted Pioneer summary disposition, concluding that the exclusion
applied where the injury occurred due to a collision with a trailer that had
broken free from the towing vehicle.200
The Michigan Court of Appeals began with the familiar rules of
contract interpretation, such as unambiguous contracts are to be applied
as written, the plain and ordinary meaning of words is to be applied, and
an insurance policy is ambiguous if it is capable of conflicting
interpretations.201 The insured bears the burden of proof related to the
coverage afforded by the policy, while the insurer must prove the
applicability of exclusions.202 The court determined:
Under the exclusions in the homeowners policy, the personal
liability coverage enjoyed by Dells does not apply to bodily
injury arising out of . . . the . . . use . . . of any motor vehicle or
all other motorized land conveyances, including trailers[.]
Although there is an exception to this exclusion relative to a
trailer not towed by or carried on a motorized land conveyance,
we conclude that it is not even necessary to reach this exception
in order to resolve the appeal.
195. Id. at 366, 839 N.W.2d at 405 (citing MICH. COMP. LAWS ANN. 333.26261
333.26271 (West 2015)).
196. Pioneer State Mut. Ins. Co. v. Dells, 301 Mich. App. 368, 37071, 836 N.W.2d
257, 259 (2013).
197. Id. at 371, 836 N.W.2d at 259.
198. Id. at 372, 836 N.W.2d at 25960.
199. Id. at 373, 836 N.W.2d at 260.
200. Id. at 376, 836 N.W.2d at 26162.
201. Id. at 37778, 836 N.W.2d at 26263.
202. Id. at 378, 836 N.W.2d at 263.

2015]

INSURANCE LAW

829

While it is certainly accurate to state that Halls death arose out

of the use of a trailer, it is equally accurate to state that her death
arose out of the use of a motor vehicle, i.e., Dellss van, whether
the use was driving the van with the trailer in tow or the act of
connecting the van to the trailer in the first place. Absent the use
of the van to connect to and tow the trailer that early October
day, there would have been no bodily injury. . . . For purposes of
the exclusion, and under the circumstances presented, one cannot
logically dismiss the vans use as playing an indispensable and
integral role in giving rise to Halls bodily injury. While it was
the trailer itself that directly struck Hall, the use of the trailer
simply cannot stand on its own, independent of the vans use, as
having been the cause of Halls bodily injuries because it was the
use of the trailer in unison with the use and operation of the van
that gave rise to Halls death.203
The court went on to consider the trailer not towed exception for
the sake of argument and concluded that if the trailer was not being
towed, there would have been no accident or injury, as a trailer cannot
propel itself.204 The court also applied a common-sense approach
reasoning that the exclusion addresses situations where the trailer was
sitting in a driveway and somehow caused injury to a person due to the
negligence of the trailer owner.205 The court buttressed its decision with
case law from other jurisdictions of situations similar to those at issue in
the case.206
H. Releases and Insurance Agents
On December 17, 2005, a fire occurred in the engine compartment of
Walter Radus vehicle, but there were no witnesses to the events leading
up to the fire, other than Mr. Radu.207 The local authorities did not
consider the fire suspicious, and Mr. Radu proceeded to file a claim with
his insurer, ACIA, which hired an investigative firm to look into the
fire.208 The investigator concluded the fuel line had been severed, and
because he determined the fire to be incendiary in nature, he contacted
203. Id. at 37980, 836 N.W.2d at 26364.
204. Id. at 380, 836 N.W.2d at 264.
205. Id. at 381, 836 N.W.2d at 264.
206. Id. at 38183, 836 N.W.2d at 26465.
207. Radu v. Herndon & Herndon Investigations, Inc., 302 Mich. App. 363, 36667,
838 N.W.2d 720, 723 (2013).
208. Id. at 367, 838 N.W.2d at 723.

830

WAYNE LAW REVIEW

[Vol. 60:807

the Oakland County Sheriffs Office.209 The Sheriffs Office requested

that ACIA provide information related to the vehicle and its
investigation; as a result of the Sheriffs Office investigation, a decision
was made to prosecute Mr. Radu, though, ultimately, the charges were
dropped with a nolle poseequi.210 Mr. Radu brought suit against ACIA
related to its denial of his claim, and that matter ultimately resolved with
a settlement and release, which was executed in favor of ACIA, its
employees, and representatives.211 Mr. Radu and his wife commenced
litigation against the investigator hired by ACIA, related to the
investigation that led to the prosecution of Mr. Radu.212 The investigator
brought two motions for summary disposition, arguing that it was
entitled to immunity pursuant to MCL section 29.4(6)213 and MCL
section 500.4509(2)214 and because of the release language applying to
all of ACIAs representatives.215 The trial court granted both motions
in favor of the investigator.216
The Michigan Court of Appeals turned to a dictionary to define
representatives, as the term was not defined in the release, and
concluded that standing in the place of or speaking/acting by delegated
authority were the touchstones of a representative.217
In this case, it is undisputed that the Herndon defendants were
hired by ACIA to investigate plaintiffs insurance claim. That is,
with regard to the investigation of the vehicle fire, the Herndon
defendants represented ACIAs interests. In that capacity,
Herndon went to the storage lot where plaintiffs vehicle was
located and conducted his investigation on behalf of ACIA.
Herndon also contacted the OCSOs fire investigation unit to
report the vehicle fire on behalf of ACIA and then consulted
with Farley during his investigation of the vehicle fire. Thus, we
conclude that the Herndon defendants spoke and acted on behalf
of ACIA by delegated authority with regard to the investigation
of the vehicle fire. Accordingly, the Herndon defendants were

209.
210.
211.
212.
213.
214.
215.
216.
217.

Id.
Id. at 368, 838 N.W.2d at 723.
Id. at 368, 838 N.W.2d at 724.
Id. at 36869, 838 N.W.2d at 724.
MICH. COMP. LAWS ANN. 29.4(6) (West 2015).
Id. 500.4509(2).
Radu, 302 Mich. App. at 37071, 838 N.W.2d at 72425.
Id. at 371, 838 N.W.2d at 725.
Id. at 375, 838 N.W.2d at 727.

2015]

INSURANCE LAW

831

representatives of ACIA within the plain meaning of the

release language.218
Further, MCL section 29.4(6) immunizes an insurance company or a
person furnishing information on behalf of an insurer from liability
related to providing information to a fire investigator, absent fraud or
malice, while MCL section 500.4509(3) also provides immunity to
agents of insurers who provide information regarding suspected
insurance fraud to proper authorities, unless the furnishing of information
was with malice or the information was knowingly false.219 Malice
within the meaning of these statutes requires knowledge of falsity, or
reckless disregard of truth or falsity.220 A failure to adequately
investigate, or a difference of opinion, is insufficient to establish a
reckless disregard.221 The trial court was correct that there was
insufficient evidence of malice.222
I. Burden of Proof on an Insurers Affirmative Defenses to a Breach of
Contract Action
A plaintiff made a claim for a fire loss to a modular home under a
policy issued to him by Home-Owners Insurance Company (HomeOwners).223 The policy contained exclusions for actions intended to
cause a loss, as well as for dishonesty regarding the insurance.224 A fire
investigator concluded that the fire was intentionally set by an amateur
arsonist, and Home-Owners denied coverage after it determined that the
arson occurred with the plaintiffs knowledge or consent and that during
the investigation, the plaintiff made material misrepresentations.225 The
trial court instructed the jury that Home-Owners needed to prove its
affirmative defenses related to the misrepresentations and intentional acts
by clear and convincing evidence.226 The jury returned a verdict in favor
of the plaintiff.227
218. Id. at 37576, 838 N.W.2d at 72728.
219. Id. at 377, 838 N.W.2d at 728 (citing MICH. COMP. LAWS ANN. 29.4(6),
500.4509(2) (West 2015)).
220. Id. at 37879, 838 N.W.2d at 729.
221. Id. at 38081, 838 N.W.2d at 72930.
222. Id. at 381, 838 N.W.2d at 730.
223. Stein v. Home-Owners Ins. Co., 303 Mich. App. 382, 38384, 843 N.W.2d 780,
780 (2013).
224. Id. at 384, 843 N.W.2d at 78081.
225. Id. at 384, 843 N.W.2d at 781.
226. Id. at 38586, 843 N.W.2d at 78182.
227. Id. at 386, 843 N.W.2d at 782.

832

WAYNE LAW REVIEW

[Vol. 60:807

The Michigan Court of Appeals concluded that simply because a

contract provision references fraud, that does not increase the burden of
proof for a defense based on that contract provision.228 The defense
asserted was not the fraud that traditionally permits a contract to be
avoided, but a contractual exclusion from coverage related to fraudulent
conduct.229 Therefore, the burden is a preponderance of the evidence, as
it would be for any other affirmative defense.230 Further, as to the
application of the higher burden of proof for the intentional acts, the trial
court articulated no reasoning for elevating the burden of proof, which
remains a preponderance of the evidence even if the defense relates to
the commission of a criminal act by the party against whom the defense
is asserted.231
J. Property Insurance
In 2009, a fire destroyed a residence on which Wells Fargo Bank,
N.A. (Wells Fargo) held a mortgage, and which was insured by AutoOwners.232 The home had been purchased by Lonnie Null, who
subsequently agreed to sell the home to his sister-in law, Elizabeth Null,
but the mortgage and homeowners policies were never assigned to
Elizabeth.233 Lonnie had not lived in the home for several years, and at
the time of the fire, he had been incarcerated since the previous year.234
Wells Fargo was notified of the claim related to the fire by Auto-Owners,
which stated that Lonnie, as the named insured, sustained damages in the
fire, and that the bank, as mortgagee, would be included on any
insurance checks.235 Auto-Owners denied Elizabeths claim on the
grounds that Lonnie did not reside there, as required by the policy.236
Elizabeth brought suit against Auto-Owners and Wells Fargo in March
2010.237 The court entered summary disposition in favor of Wells Fargo,
which then attempted to intervene as a counter-plaintiff in 2011 based on
a claim derivative of the policy held by Lonnie, but the trial court denied
the motion.238 After a bench trial, the trial court granted summary
228. Id. at 38788, 843 N.W.2d at 78283.
229. Id. at 388, 843 N.W.2d at 783.
230. Id. at 38889, 843 N.W.2d at 783.
231. Id. at 39091, 843 N.W.2d at 784.
232. Wells Fargo Bank, N.A. v. Null, 304 Mich. App. 508, 510, 847 N.W.2d 657, 662
(2014).
233. Id.
234. Id. at 51011, 847 N.W.2d at 662.
235. Id. at 511, 847 N.W.2d at 662.
236. Id.
237. Id. at 512, 847 N.W.2d at 663.
238. Id. at 51213, 847 N.W.2d at 663.

2015]

INSURANCE LAW

833

disposition in favor of Auto-Owners, and Elizabeth appealed.239 The

Michigan Court of Appeals affirmed, concluding that the residence fell
outside the policys definition of covered property because Lonnie no
longer resided there.240 While Elizabeths case was proceeding, Wells
Fargo filed its own action against Auto-Owners and Elizabeth, asserting
it was entitled to any insurance proceeds Elizabeth may recover, and for
breach of contract against Auto-Owners.241 The policy contained a
separate mortgage clause, giving rise to a separate contract with the
mortgagee.242 The trial court granted Auto-Owners summary disposition,
concluding that the policy did not provide coverage to Wells Fargo for
damages to the structure at issue, and further that the summary
disposition granted to Wells Fargo from Elizabeths case operated as a
dismissal of all claims Wells Fargo may have had related to the fire.243
The issue as to whether the policy provided coverage to the residence
at issue was not properly preserved, but was addressed by the Michigan
Court of Appeals nonetheless.244 The issue was raised in Elizabeths
lawsuit, and collateral estoppel barred its relitigation.245 In Elizabeths
lawsuit, the trial court determined that the residence was not covered,
and that matter was affirmed on appeal.246 Further, Wells Fargo was a
party to the prior action, had the opportunity to contest coverage in that
action, was dismissed on its own motion, and as a named party, could
have participated in the previous appeal.247
As to the mortgage clause, there are two such types used in insurance
policies, ordinary and standard.248 With an ordinary clause, there is
no privity of contract between mortgagee and insurer, and the lienholder
is simply an appointee to receive the insurance fund to the extent of its
interest, and its right of recovery is no greater than the right of the
insured.249 With a standard clause, an independent agreement exists
between mortgagee and insurer, such that the mortgagee is not subject
to the exclusions available to the insurer against the insured.250 The
239. Id. at 513, 847 N.W.2d at 663.
240. Id. at 51314, 847 N.W.2d at 66364.
241. Id. at 514, 847 N.W.2d at 664.
242. Id. at 515, 847 N.W.2d at 664.
243. Id. at 516, 847 N.W.2d at 665.
244. Id. at 520, 847 N.W.2d at 667.
245. Id.
246. Id. at 521, 847 N.W.2d at 66768.
247. Id. at 522, 847 N.W.2d at 668.
248. Id. at 523, 847 N.W.2d at 669.
249. Id. (quoting Foremost Ins. Co. v. Allstate Ins. Co., 439 Mich. 378, 383, 486
N.W.2d 600, 602 (1992)).
250. Id. at 524, 847 N.W.2d at 669 (quoting Foremost Ins. Co., 439 Mich. at 384, 486
N.W.2d at 60203).

834

WAYNE LAW REVIEW

[Vol. 60:807

parties do not dispute that the policy at issue contains a standard

clause, and the court concluded that the language that in the event AutoOwners denied the insureds claim such denial will not apply to a valid
claim of the mortgagee is consistent with the standard clause.251 The
standard clause provides coverage to Wells Fargo under the
circumstances of this case.252 Relying on prior case law, the Michigan
Court of Appeals determined:
[T]he Court indicated that the standard mortgage clause was an
independent contract of insurance meant to prevent loss of
coverage for the mortgagee for any act or neglect between the
insured and the insurer. While the case may have involved denial
of coverage to the insured pursuant to an exclusion, rather than a
finding that no coverage existed, the Court did not make a
distinction between acts that precluded coverage and acts that
excluded coverage when setting forth the rule of law.253
The clause operates to protect the mortgagee for any act or neglect of
the insured, even where the act or neglect falls within a policy exclusion
or causes there to be no coverage under the policy under the first
instance.254
Here, when Lonnie ceased to reside at the property, the exclusion
was triggered.255 Furthermore, the policy itself imposes a condition on
the mortgagee to notify the insurer of any change in occupancy or
ownership of which the mortgagee has knowledge to preserve coverage,
and this requirement would be unnecessary if change in occupancy or
ownership, alone, negated the coverage.256 The court further relied on
several cases from other jurisdictions that have considered whether the
mortgagee has a valid claim pursuant to the mortgage clause even where
the insureds claim would be excluded.257 Finally, the prior dismissal of
Wells Fargo in Elizabeths lawsuit does not bar its proceedings here
because Wells Fargos position is not wholly inconsistent with its
position at present.258 The Michigan Court of Appeals remanded for

251. Id. at 52627, 847 N.W.2d at 67072 (quoting Foremost Ins. Co., 439 Mich. at
38990, 486 N.W.2d at 605).
252. Id. at 527, 847 N.W.2d at 671.
253. Id. at 529, 847 N.W.2d at 672.
254. Id. at 531, 847 N.W.2d at 673.
255. Id.
256. Id. at 532, 847 N.W.2d at 67374.
257. Id. at 53336, 847 N.W.2d at 67476.
258. Id. at 53738, 847 N.W.2d at 67677.

2015]

INSURANCE LAW

835

consideration of whether Wells Fargo complied with the requirement of

the policy so as to permit a claim pursuant to the mortgage clause.259
K. Insurance Agents and Business Coverage
In 2003 the primary building of Zaremba Equipment, Inc.
(Zaremba) was destroyed by a fire; the building was insured by Harco
National Insurance Company (Harco), with limits of $525,000 for the
building and $700,000 for the contents, which were insufficient amounts
to replace the building and its contents.260 Zaremba contended that the
insurance agent, employed solely by Harco, provided erroneous advice,
misrepresented the coverage being purchased, and performed an
appraisal which undervalued the property.261 A jury awarded Zaremba far
in excess of the policy limits, but the Michigan Court of Appeals, in
2008, reversed in a published opinion, concluding that the jury was not
properly instructed regarding the duty to read the insurance policy.262 A
properly instructed jury subsequently found the agent negligent and
concluded he made innocent misrepresentations but did not find
responsibility for fraud; the jury awarded a number generally in line with
the policy limits.263
The Michigan Court of Appeals determined that because the
previous appellate decision decided that any failure to read the policy
was to be assessed as comparative fault regarding the agents negligence,
further argument regarding the failure to read the policy being a
complete bar to recovery is precluded by the law of the case doctrine.264
The same is true of the innocent misrepresentation claim as being limited
to the appraisal of the building.265
Next, the court considered the sufficiency of evidence relative to a
special relationship between the agent and Zaremba, so as to create a
duty owed by the agent of Harco to Zaremba.266 Generally, an insurance
agent who is the servant of the insurance company does not owe a duty
to advise an insured about coverage, as the agent is really an order

259. Id. at 540, 847 N.W.2d at 678.

260. Zaremba Equip., Inc. v. Harco Natl Ins. Co., 302 Mich. App. 7, 10, 837 N.W.2d
686, 690 (2013).
261. Id. at 1011, 837 N.W.2d at 690.
262. Id. at 11, 837 N.W.2d at 690.
263. Id.
264. Id. at 1516, 837 N.W.2d at 693.
265. Id. at 1617, 837 N.W.2d at 69394.
266. Id. at 17, 837 N.W.2d at 69394.

836

WAYNE LAW REVIEW

[Vol. 60:807

taker, not an insurance counselor.267 This general rule yields where a

special relationship exists, as when:
(1) the agent misrepresents the nature or extent of the coverage
offered or provided, (2) an ambiguous request is made that
requires a clarification, (3) an inquiry is made that may require
advice and the agent, though he need not, gives advice that is
inaccurate, or (4) the agent assumes an additional duty by either
express agreement with or promise to the insured.268
Here, the agent stepped into the role of an insurance advisor (as he
purported to be an expert in insuring motor vehicle dealers), made
recommendations as to the insurance Zaremba needed, conceded that
Zaremba requested insurance in an amount sufficient to replace the
building, and performed an appraisal and survey at Zarembas request on
which Zaremba relied.269 Thus, the court affirmed the trial courts
decision.270
The trial court also addressed alleged attorney misconduct related to
speaking objections, comparative negligence inconsistencies, and case
evaluation sanctions, but those discussions are not related to any
insurance aspect.271 Likewise, Zarembas cross appeal was unrelated to
insurance issues.272

267. Id. at 18, 837 N.W.2d at 694. This is to be contrasted with an independent
insurance agent, who is the agent of the insured, not the insurer. See Genesee Foods
Servs., Inc. v. Meadowbrook, Inc., 279 Mich. App. 649, 654, 760 N.W.2d 259, 262
(2008).
268. Zaremba Equip., Inc., 302 Mich. App. at 18, 837 N.W.2d at 694 (quoting Harts v.
Farmers Ins. Exch., 461 Mich. 1, 1011, 597 N.W.2d 47, 52 (1999)).
269. Zaremba Equip., Inc., 302 Mich. App. at 18, 837 N.W.2d at 694.
270. Id. at 20, 837 N.W.2d at 695.
271. Id. at 2031, 837 N.W.2d at 695701.
272. Id. at 3133, 837 N.W.2d at 70102.

BUSINESS ASSOCIATIONS
MICHAEL K. MOLITOR
I. STATUTORY CHANGES DURING SURVEY PERIOD ............................. 838
A. Crowdfunding Legislation ......................................................... 838
B. Professional Entities Providing Accounting Services................ 847
C. Definition of Equity Shares for Purposes of Chapter 7A of
the BCA.................................................................................... 848
II. REPORTED DECISIONS ...................................................................... 848
A. Woodbury v. Res-Care Premier, Inc.......................................... 848
B. Madugula v. Taub ...................................................................... 851
C. Shotwell v. Department of Treasury.......................................... 855
D. Other Cases ............................................................................... 859
III. NOTABLE UNPUBLISHED DECISIONS .............................................. 860
During the Survey period (June 1, 2013 to May 31, 2014), Michigan
state courts reported a few decisions concerning the law of business
associations, which are discussed in Part II below.1 There were also
several interesting unpublished decisions, which are discussed in Part III
below.
It was fairly quiet on the statutory front during the Survey period:
there were only a few amendments to the Michigan Business Corporation
Act (BCA)2 and one amendment to the Michigan Limited Liability
Company Act.3 There were no amendments to the Michigan Uniform
Partnership Act4 or the Michigan Revised Uniform Limited Partnership
Professor of Law, Western Michigan University Thomas M. Cooley Law School.
1. Recent Survey periods have also had small numbers of business law cases. See
James L. Carey & Justin G. Klimko, Amendments to Michigans Business Corporation
Act and Repeal of the Professional Service Corporation Act, 59 WAYNE L. REV. 1293
(2014) (discussing statutory amendments, but no cases, issued during June 1, 2012 to
May 31, 2013 Survey period); Evan J. Leibhan & Clara L. Seymour, Business
Associations, 57 WAYNE L. REV. 737 (2011) (discussing three reported decisions issued
during the June 1, 2010 to May 31, 2011 Survey period); Michael K. Molitor, Business
Associations, 56 WAYNE L. REV. 933 (2010) (discussing two reported decisions issued
during the June 1, 2009 to May 31, 2010 Survey period); Michael K. Molitor, Business
Associations, 56 WAYNE L. REV. 131 (2010) (discussing one reported decision issued
during the June 1, 2008 to May 31, 2009 Survey period).
2. MICH. COMP. LAWS ANN. 450.1101450.2099 (West 2015).
3. Id. 450.4101450.5200.
4. Id. 449.1449.48.

837

838

WAYNE LAW REVIEW

[Vol. 60:837

Act5 during the Survey period.6 However, the Michigan Uniform

Securities Act was amended during the Survey period to add a
crowdfunding exemption.7 Because this was probably the most
significant business law development during the Survey period, this
Article will begin there.
I. STATUTORY CHANGES DURING SURVEY PERIOD
A. Crowdfunding Legislation
In general, the term crowdfunding refers to raising money for a
project from a large number of persons who contribute relatively small
amounts.8 Crowdfunding is often conducted over the Internet, on
websites such as kickstarter.com, where one can contribute money to
various projects in return for non-monetary rewards.9 For example, you
might contribute money to help a rock band make a record and receive
backstage passes if the band plays a concert in your town. Note here,
however, that websites like this are not selling any securities, and you are
not making an investment in the traditional sense when you fund such
projects.
But what if a company wanted to offer and sell stock or other
securities to investors in a crowdfunding arrangement? Here, things
become difficult because section 5 of the Securities Act of 193310
generally requires that a person who wants to offer and sell securities11
must first register the securities with the Securities and Exchange
Commission (SEC), unless an exemption from the registration
requirement is available.12 State securities laws are generally to the same
5. Id. 449.1101449.2108.
6. In early 2013, during the prior Survey period, the Professional Service
Corporation Act was repealed as a separate statute and moved to chapter 2A of the BCA,
and several other significant changes were made to the BCA. See Carey & Klimko, supra
note 1.
7. See infra Part I.A.
8. Crowdfunding,
MERRIAM-WEBSTER,
http://www.merriamwebster.com/dictionary/crowdfunding (last visited Mar. 1, 2015).
9. What
Is
Kickstarter?,
KICKSTARTER,
https://www.kickstarter.com/hello?ref=footer (last visited Mar. 1, 2015).
10. 15 U.S.C.A. 77e (West 2014).
11. Section 2a(1) of the Securities Act defines the term security. Id. 77b(a)(1).
While this definition is very lengthy, note that stock in a corporation is clearly a
security.
12. There are generally two types of exemptions: exempt securities and exempt
transactions. See, e.g., 15 U.S.C.A. 77c, 77d, 77z-3. Further, exemptions may exist
under the statute itself or pursuant to SEC rules. See id. 77z-3.

2015]

BUSINESS ASSOCIATIONS

839

effect.13 Thus, a company that wants to do a stock offering through a

crowdfunding arrangement must either register the stock with the SEC
beforehand, which likely would be prohibitively time-consuming and
expensive for a small offering, or find an exemption. The problem is that
few, if any, of the currently available federal exemptions from the
registration requirement would work well with a crowdfunding offering.
However, in April 2012, President Obama signed the Jumpstart Our
Business Startups Act, otherwise known as the JOBS Act.14 Title III of
the JOBS Act added new section 4(a)(6) to the Securities Act15 and
directed the SEC to implement rules for a crowdfunding exemption,
within the following parameters:
the issuer may sell no more than $1 million worth of
securities during a twelve-month period pursuant to the
crowdfunding exemption;16
while there would be no limit on the number of investors,
there would be limits on the amount of money that any given
investor may invest;17
the offering must be conducted through a broker or funding
portal that complies with the requirements of new section 4A(a)
of the Securities Act;18 and
the issuer must comply with the requirements of new section
4A(b) of the Securities Act, which concerns matters such as
providing information to investors and restrictions on advertising
and compensating promoters.19
As noted above, the JOBS Act did not actually create a
crowdfunding exemption; instead, it directed the SEC to do so under its
rulemaking authority.20 Unfortunately, while the statute gave the SEC
until the end of 2012 to finalize the crowdfunding rules, as of May 2015
13. See, e.g., MICH. COMP. LAWS ANN. 450.2301 (West 2014).
14. Jumpstart Our Business Startups Act, Pub. L. No. 112106, 126 Stat. 306 (2012)
(codified as amended at 15 U.S.C.A. 77b, 77c77g, 77r, 78c, 78d, 78k-1, 78m, 78n
78n-1, 78o, 78o6, 7213, 7262).
15. 15 U.S.C.A. 77d(a)(6).
16. Id. 77d(a)(6)(A).
17. Id. 77d(a)(6)(B).
18. Id. 77d(a)(6)(C), 77d-1(a).
19. Id. 77d(a)(6)(D), 77d-1(b). In addition, publicly traded companies and certain
other issuers may not use the crowdfunding exemption. See id. 77d-1(f).
20. See supra note 15 and accompanying text.

840

WAYNE LAW REVIEW

[Vol. 60:837

it still had not done so.21 Impatient with this delay, Michigan and several
other states have implemented their own crowdfunding rules.22

21. The SEC proposed rules in November, 2013. See Crowdfunding, 78 Fed. Reg.
66427 (proposed Nov. 5, 2013), available at http://www.sec.gov/rules/proposed/2013/339470.pdf. As of May 2015, the proposed rules remain just thatproposed, but not final.
See also Steven D. Solomon, SECs Delay on Crowdfunding May Just Save It, N.Y.
TIMES DEALBOOK (Nov. 18, 2014, 2:56 PM), http://dealbook.nytimes.com/2014/11/18/se-c-s-delay-on-crowdfunding-may-just-save-it-2/?_r=0. Although the crowdfunding rules
under Title III of the JOBS Act havent been finalized, the SEC did adopt new rules
under Title IV of the JOBS Act in March 2015. Section 401 of Title IV of the JOBS Act
amended section 3(b) of the Securities Act to direct the SEC to adopt an exemption
allowing public offerings of up to $50 million (subject to periodic increases to be
determined by the SEC) of equity or debt securities in a 12-month period. Section 401
also provided, among other things, that securities sold pursuant to such an exemption
would not be restricted securities (which would make them easier for investors to
resell), that civil liability under section 12(a)(2) of the Securities Act would not apply to
such offerings (making issuers breathe easier), and that issuers may solicit interest in the
offering prior to filing any offering statement, on such terms and conditions as the [SEC]
may prescribe in the public interest or for the protection of investors (allowing issuers to
gauge potential interest in the offering before undertaking the time and expense of
undertaking the offering). Unlike Title III of the JOBS Act, however, Congress did not
specify any deadlines for implementation of these rules, leading some to think that they
would be a long time in coming.
In a surprise development, however, in late 2013, the SEC proposed rules to
implement section 401 (see Proposed Rule Amendments for Small and Additional Issues
Exemptions Under Section 3(b) of the Securities Act, 79 Fed. Reg. 3926 (proposed Jan.
23, 2014), available at http://www.sec.gov/rules/proposed/2013/33-9497.pdf) and
adopted final rules in March 2015 (see Amendments for Small and Additional Issues
Exemptions Under the Securities Act (Regulation A), 80 Fed. Reg. 21806 (Apr. 20,
2015), available at http://www.sec.gov/rules/final/2015/33-9741.pdf). Although this is
not the place for an extended discussion of the new rules (and the reader should
understand that any brief discussion of SEC rules will omit important details), a few
words are in order. The new rules, which have been dubbed Regulation A+, create two
tiers of offerings: Tier 1 allows U.S. or Canadian non-public issuers to sell up to $20
million in a 12-month period (including up to $6 million by existing security holders that
are affiliates of the issuer), and Tier 2 allows up to $50 million (including up to $15
million by existing security holders that are affiliates). Importantly, in Tier 2 offerings,
issuers will not be required to register the securities at the state level, but would be
subject to additional disclosure requirements such as audited financial statements and
annual reporting. In Tier 1 offerings, issuers may be able to take advantage of a multiplestate coordinated review process, which could also lessen the burden of state registration.
In Tier 2 offerings, non-accredited investors may not purchase securities worth more than
the greater of 10% of their annual income or 10% of their net worth. (These limits do not
apply to accredited investors, or to any investors in a Tier 1 offering.) Importantly,
neither tier has a prohibition on general advertising or general solicitation, which means
that offerings under Regulation A+ could be conducted as crowdfunding offerings
(although remember that the rules do contain detailed disclosure requirements not
discussed here). Obviously, there is much more to say about Regulation A+, but it will be
interesting to see how many issuers utilize it and how much capital is raised under it.

2015]

BUSINESS ASSOCIATIONS

841

Michigans crowdfunding exemption is Public Act 264 of 2013,

which was effective on December 26, 2013.23 It amended several
sections of the Michigan Uniform Securities Act and also added section
202a to that statute.24 New section 202a,25 known as the Michigan
invests locally exemption,26 provides that securities offerings that meet
the following conditions are exempt from Michigans registration
requirement:
The issuer must be incorporated or organized under
Michigan law and authorized to do business in Michigan.27
Further, it cannot (1) be an investment company as defined in
the Investment Company Act of 1940 (or an entity that would
be an investment company but for the exclusions provided in
section 3(c) of the Investment Company Act),28 (2) a reporting
company under section 13 or 15(d) of the Securities Exchange
Act of 1934,29 or (3) subject to certain disqualification
provisions.30
The transaction must meet the requirements of section
3(a)(11) of the Securities Act and SEC Rule 147, known as the
intrastate exemption and discussed below.31
The amount of the offering may not exceed (1) $1 million in
any twelve-month period, if the issuer has not made audited
financial statements for its most recent fiscal year available to
prospective investors, or (2) $2 million in any twelve-month
period, if the issuer has made such audited financial statements
22. Anthony J. Zeoli, State of the States: List of Current Active and Proposed
Intrastate Crowdfunding Exemptions (Updated), CROWDFUNDINGLEGALHUB.COM,
http://crowdfundinglegalhub.com/2015/01/16/state-of-the-states-list-of-current-activeand-proposed-intrastate-exemptions/ (last updated Apr. 4, 2015).
23. 2013 Mich. Legis. Serv. 264 (West).
24. Id.
25. MICH. COMP. LAWS ANN. 451.2202a (West 2014).
26. Id. 451.2202a(ii).
27. Id. 451.2202a(1)(a). This is a little puzzling because all corporations or limited
liability companies that are organized under Michigan law would be authorized to do
business in Michigan. Instead, foreign entities (that is, entities formed under the law of
another state) must obtain a certificate of authority to transact business in Michigan. Id.
450.2011.
28. Id. 451.2202a(1)(f).
29. Id.
30. Id. 451.2202a(5).
31. See infra notes 5166 and accompanying text.

842

WAYNE LAW REVIEW

[Vol. 60:837

available to prospective investors.32 (These amounts are subject

to adjustment for inflation every five years.33 In addition,
amounts sold to controlling persons as defined in subsection
(10) do not count against these limits.34)
No purchaser may invest more than $10,000, unless he or
she is an accredited investor as defined by SEC Rule 501.35
(This amount is also subject to adjustment for inflation every
five years.36) However, the issuer may rely on confirmation that
the purchaser is an accredited investor from a licensed brokerdealer or another third party in making a determination that the
purchaser is an accredited investor.37
The issuer must pay a $100 fee38 and file a notice with the
Department of Insurance and Financial Services at least ten days
before making an offer or using a publicly available website in
connection with the crowdfunding offering.39 The notice must
include, among other things, a copy of the disclosure statement
that the issuer will provide to prospective investors,40 which
must contain several disclosures about the issuer and other
matters specified in the statute.41 Further, the filing must include
an escrow agreement with a Michigan bank or depository
institution under which all offering proceeds will be deposited
and which provides that the proceeds will only be released to the
issuer if the minimum or target offering amount is met; if that

32. MICH. COMP. LAWS ANN. 451.2202a(1)(c).

33. Id. 451.2202a(2).
34. Id. 451.2202a(4).
35. 17 C.F.R. 230.501 (2013).
36. MICH. COMP. LAWS ANN. 451.2202a.
37. Id. 451.2202a(1)(d). One wonders whether such a third party needs any
qualifications to make this confirmation.
38. Id. 451.2202a(7).
39. Id. 451.2202a(1)(e).
40. Under subsection (1)(m), this disclosure statement must be provided to
prospective investors when offers are first made to them, along with additional
information material to the offering, including, where appropriate, a discussion of
significant factors that make the offering speculative or risky. Furthermore, [t]his
discussion must be concise and organized logically and should not present risks that
could apply to any issuer or any offering. Id. 2202a(1)(m).
41. Id. 451.2202a(1)(e)(ii).

2015]

BUSINESS ASSOCIATIONS

843

amount is not met, the escrow agreement must provide that funds
will be returned to investors.42
The issuer must inform prospective investors that the
securities are unregistered and are subject to resale limitations on
transfer and must also provide a specified legend to that effect
conspicuously on the cover page of the disclosure statement.43
The issuer must also have each purchaser sign (and initial
each paragraph of) a document in which he or she certifies
various understandings, including (among other things) that: I
understand and acknowledge that . . . I am investing in a highrisk, speculative business venture. I may lose all of my
investment, and I can afford the loss of my investment.44
If the offering is made through a website, certain additional
requirements must be met by both the issuer and the websites
operator.45
The issuer may not, directly or indirectly, pay any
commission or remuneration to an executive officer, director,
managing member, or other individual who has a similar status
or performs similar functions in the name of and on behalf of the
issuer for offering or selling the securities unless he or she is
registered as a broker-dealer, investment adviser, or investment
adviser representative . . . .46

The offering may not continue for more than 12 months.47

Following completion of the offering, the issuer must provide

quarterly reports to purchasers for as long as the securities remain
outstanding.48 The reports must include specified information, including

42. Id. 451.2202a(1)(e)(iii); see also id. 451.2202a(1)(j).

43. Id. 451.2202a(1)(g).
44. Id. 451.2202a(1)(h).
45. Id. 451.2202a(1)(i), 451.2202a(1)(k).
46. Id. 451.2202a(1)(l). Conversely, such persons are exempt from these
registration requirements if they do not receive, directly or indirectly, any commission
or remuneration for offering or selling securities of the issuer that are exempt from
registration under this section. Id.
47. Id. 451.2202a(1)(n).
48. Id. 451.2202a(3).

844

WAYNE LAW REVIEW

[Vol. 60:837

(somewhat vaguely) an analysis by management of the issuer of the

business operations and financial condition of the issuer.49
Further, websites used for crowdfunding offerings will not be
required to register in Michigan as broker-dealers, investment advisers,
or investment adviser representatives if they meet certain conditions,
including refraining from offering investment advice or
recommendations and soliciting purchases (or compensating others for
doing so).50 Note, however, that this pertains only to registration in
Michigan; registration with the SEC could still be required in some
cases.
As noted above, to qualify for exemption under the Michigan
invests locally exemption, the offering must comply with both section
3(a)(11) of the Securities Act51 and SEC Rule 147 thereunder.52
Generally speaking, section 3(a)(11) has four requirements for a
securities offering to be exempt at the federal level: (1) assuming that the
issuer is a corporation, it must be incorporated in the state in which the
offering is made; (2) the issuer must be doing business in that state; (3)
every offeree must be a resident of that state; and (4) because of the
phrase part of an issue, the securities must come to rest in that state
before they may be resold to persons who reside outside the state.53 Note
that this last requirement subjects an issuer to the risk that purchasers
will resell the securities outside the state too soon, thereby potentially
ruining the section 3(a)(11) exemption.
Because some of the requirements of section 3(a)(11), particularly
the doing business requirement, are vague, Rule 147 provides a safe
harbor. In other words, if one complies with Rule 147, one has
definitively complied with the statutory exemption. Conversely, if one
fails to comply with Rule 147, one may still have a valid statutory
exemption.54 Chief among Rule 147s benefits is that it specifies a set of
49. Subsection (6) gives the administrator authority to adopt rules to implement the
crowdfunding exemption. Id. 451.2202a(6). One hopes that such rules would clarify the
meaning of this phrase.
50. Id. 451.2202a(8).
51. 15 U.S.C.A. 77c(a)(11) (West 2014) (exempting from the registration
requirements [a]ny security which is a part of an issue offered and sold only to persons
resident within a single State or Territory, where the issuer of such security is a person
resident and doing business within or, if a corporation, incorporated by and doing
business within, such State or Territory).
52. 17 C.F.R. 230.147 (2013).
53. 15 U.S.C.A. 77c(a)(11).
54. Preliminary note 1 to Rule 147 provides that [t]his rule shall not raise any
presumption that the exemption provided by section 3(a)(11) of the Act is not available
for transactions by an issuer which do not satisfy all of the provisions of the rule. 17
C.F.R. 230.147 prelim. n.1.

2015]

BUSINESS ASSOCIATIONS

845

clear safe harbor rules for determining whether the issuer is doing
business in the state55 and whether an offeree resides in the state.56 It
also provides for a nine month coming to rest period before securities
may be resold outside the state.57 Nonetheless, the Michigan invests
locally exemption gives issuers some additional guidance; for example,
it provides that certain facts are prima facie evidence that an individual is
a Michigan resident.58
As noted above, if the securities sold in an intrastate offering are
resold outside the state before the come to rest period has expired, the
offering may not be exempt under section 3(a)(11) and/or Rule 147,
which could expose the issuer to damages under (among other things)
section 12(a)(1) of the Securities Act.59 To help guard against this
possibility, many issuers require purchasers in intrastate offerings to
agree that they will not resell the securities outside the state until after
the period has expired.60 Of course, simply because a person has
contractually agreed to something does not mean that he or she will
actually abide by that agreement.
However, the document discussed above that each purchaser must
sign under the Michigan statute must contain this statement: If I resell
any of the securities I am acquiring in this offering to a person that is not
a Michigan resident, within 9 months after the closing of the offering, my
contract with the issuer for the purchase of these securities is void.61
Further, the statute provides that if one of the purchasers in the
crowdfunding exemption:
resells that security within 9 months after the closing of the
particular offering . . . to a person that is not a resident of this
state, the original investment agreement between the issuer and
the purchaser is void. If an agreement to purchase, or the
purchase of, a security is void under this subparagraph, the issuer
may recover damages from the misrepresenting offeree or
55. Id. 230.147(c)(2).
56. Id. 230.147(d).
57. Id. 230.147(e).
58. See MICH. COMP. LAWS ANN. 451.2202a(1)(b)(i) (West 2015).
59. 15 U.S.C.A. 77l(a) (West 2015). Among other things, this section imposes strict
liability on issuers (and certain others) that offer and sell unregistered securities without
having a valid exemption. A purchaser can generally recover rescissionary damages, i.e.,
the purchase price together with interest, less any income (e.g., dividends) that the
purchaser received as a result of owning the security.
60. Rule 147(f)(i) requires that issuers disclose the limitations on resale to investors.
See 17 C.F.R. 230.147 (2013).
61. MICH. COMP. LAWS ANN. 451.2202a(h).

846

WAYNE LAW REVIEW

[Vol. 60:837

purchaser. These damages include, but are not limited to, the
issuers expenses in resolving the misrepresentation. However,
damages described in this subparagraph shall not exceed the
amount of the persons investment in the security.62
One tension between the state exemption and section 3(a)(11) and
Rule 147 may remain problematic, however. As noted above, the state
exemption allows the issuer to use websites in connection with the
offering, provided certain conditions are met. The SEC or a court,
however, could take the view that doing so means the issuer is making
offers to persons outside the applicable state and is thus in violation of
the requirement of section 3(a)(11) that all offers must be only to
residents of the applicable stateafter all, the Internet is available
worldwide. Nonetheless, in April 2014, the SEC posted new
Compliance and Disclosure Interpretations on its website.63 The
answer to new Question 141.04, which concerns using a third-party
portal in a crowdfunding offering, provides in part that [u]se of the
Internet would not be incompatible with a claim of exemption under
Rule 147 if the portal implements adequate measures so that offers of
securities are made only to persons resident in the relevant state or
territory and then goes on to specify those measures.64 Similarly, the
answer to new Question 141.05, which concerns whether an issuer may
use its own website or social media presence in connection with Rule
147, observes that using an established Internet presence to convey
information about specific investment opportunities would likely involve
offers to residents outside the particular state in which the issuer did
business.65 However, the answer does state in part that:
We believe . . . that issuers could implement technological
measures to limit communications that are offers [of securities]
only to those persons whose Internet Protocol, or IP, address
originates from a particular state or territory and prevent any
offers to be made to persons whose IP address originates in other
states or territories. Offers should include disclaimers and
62. Id. 451.2202a(1)(b)(iii).
63. Whats New in the Division of Corporation Finance: April 2014, U.S. SEC. &
EXCHANGE COMMISSION, http://www.sec.gov/divisions/corpfin/cfnew/cfnew0414.shtml
(last visited Feb. 10, 2015).
64. Compliance and Disclosure Interpretations: Securities Act Rules, U.S. SEC. &
EXCHANGE
COMMISSION,
http://www.sec.gov/divisions/corpfin/guidance/securitiesactrules-interps.htm#141-04
(last updated Jan. 23, 2015).
65. Id.

2015]

BUSINESS ASSOCIATIONS

847

restrictive legends making it clear that the offering is limited to

residents of the relevant state under applicable law.66
While it is somewhat encouraging that the SEC is taking the position
that it is possible to use a website in connection with a section 3(a)(11)
intrastate offering, the SECs guidance is not exactly a model of clarity,
which may lead to lawyers giving overly cautious legal advice,
particularly because there is no guarantee that a court will agree with this
interpretation.
B. Professional Entities Providing Accounting Services
Both the BCA and the Michigan Limited Liability Company Act
generally provide that organizations that provide professional services
may be organized as professional organizations, that is, a professional
corporation (PC) or a professional limited liability company (PLLC).
However, a corporation or an LLC must be organized as a PC or a PLLC
(as applicable) if the professional services that it provides are services in
a learned profession,67 which is a narrower term than professional
services.
Further, professional organizations generally may be owned only by
persons who are licensed in the appropriate field. For example, this
means that a law firm that is organized as a PC or a PLLC may be owned
only by licensed lawyers.68 However, there are some exceptions to this
rule set forth in section 284 of the BCA for certain healthcare
professionals, and during the Survey period new subsection (5) was
added, providing that it is permissible for a PC to engage in the practice
of public accounting if more than 50% of the equity and voting rights of
the professional corporation are held directly or beneficially by
individuals who are licensed or otherwise authorized to engage in the
practice of public accounting . . . .69 A similar provision was added to
the Limited Liability Company Act for PLLCs.70

66. Id.
67. See MICH. COMP. LAWS ANN. 450.1281(1), 450.4901(1), 450.4201. As noted
supra note 6, in early 2013, the Professional Service Corporation Act was repealed as a
separate statute and moved to chapter 2A of the BCA.
68. See id. 450.1288(1); see also id. 450.4904(1).
69. Id. 450.1284(5). In my opinion, section 284 of the BCA needs to be harmonized
with section 288 of the BCA, which provides that a PC may not issue any stock to an
individual who is not licensed in the applicable professional field.
70. Id. 450.4904(7).

848

WAYNE LAW REVIEW

[Vol. 60:837

C. Definition of Equity Shares for Purposes of Chapter 7A of the BCA

Finally, during the Survey period, the definitions of equity
security, interested shareholder, and market value, that apply in
Chapter 7A of the BCA were amended in certain respects.71 Generally,
Chapter 7A requires an advisory statement from the board and a
supermajority shareholder vote when a corporation will be engaged in a
business combination with or involving an interested shareholder.72
Under the 2013 amendments, for purposes of determining whether a
person is an interested shareholder, shares that the person acquired in a
public offering will no longer be considered to be outstanding or
beneficially owned by that person, unless the corporation determines
otherwise by a resolution of the board adopted before the person
acquired those voting shares.73
II. REPORTED DECISIONS
A. Woodbury v. Res-Care Premier, Inc.
This case presents an interesting tale, even though the supreme court
ultimately dismissed the appeal and vacated the 2012 court of appeals
opinion in the case.74 The facts begin with a piece of property known as
#2 Center Woods (the Property), which was owned by Ruth Averill
but subject to a right of first refusal in favor of Center Woods, Inc.
(Center Woods).75 Center Woods had been incorporated as a nonprofit
corporation in 1941 but was automatically dissolved in 1993 when it
failed, for two consecutive years, to file its annual report and to pay the
annual filing fee.76
Simplifying the facts somewhat, in 2009, Ms. Averill sold the
Property to Res-Care Premier, Inc. (Res Care) without first offering the
Property to Center Woods (although she did send a letter about the sale
to the head of the homeowners association and never received a reply).77
71. See id. 450.1778(1)(4).
72. Id. 450.1780, 450.776(5).
73. Id. 450.1778(3)(b).
74. Woodbury v. Res-Care Premier, Inc., 295 Mich. App. 232, 814 N.W.2d. 308
(2012).
75. Specifically, the articles of agreement among the homeowners in the Center
Woods development provided in part that [n]o property in Center Woods shall be sold
without first giving Center Woods, Inc., thirty (30) days notice thereof and first
opportunity to purchase said property at a price equal to a bonafide offer. Id. at 236, 814
N.W.2d. at 310.
76. Id. at 234, 814 N.W.2d. at 309.
77. Id. at 23435, 814 N.W.2d. at 31011.

2015]

BUSINESS ASSOCIATIONS

849

Less than a month later, however, Center Woods filed renewal-ofexistence papers with the state of Michigan,78 and then Center Woods
(along with Scott and Jeanne Woodbury, who owned the neighboring
property, #3 Center Woods) filed a lawsuit against Res-Care and
Averill seeking to prevent Res-Care from occupying the property.79
Ultimately, the trial court voided the sale, finding that Center Woods had
a right of first refusal to purchase the Property and that Ms. Averill had
failed to give it sufficient notice of the sale.80
On appeal, the court of appeals reversed.81 Because the agreement
required notice to be given to Center Woods, Inc. but that entity
technically did not exist when notice was required, the question became
what effect Center Woodss later reinstatement had on the notice
requirement.82 The plaintiffs argued that when Center Woods was
reinstated under section 925 of the Nonprofit Corporation Act,83 it was as
if the dissolution essentially never took place.84 Under that view,
Center Woods would have been in existence at the time notice was
required.85
The court of appeals, however, disagreed. After reviewing two prior
cases that involved similar issues, the court noted that neither of them
provides guidance in answering the question whether a party who is
required to provide notice of some event to the corporation, which has
ceased to exist for 16 years, could be deemed to have failed to properly

Id.

78. Id. at 234, 814 N.W.2d at 309.

79. Id. at 23338, 814 N.W.2d at 30912.
80. Id. at 23940, 814 N.W.2d. at 31214.
81. Id. at 233, 814 N.W.2d at 309.
82. Id. at 24546, 814 N.W.2d at 315.
83. MICH. COMP. LAWS ANN. 450.2925 (West 2015). This section provides in part:
(1) A domestic corporation that is dissolved under section 922(1), or a foreign
corporation whose certificate of authority is revoked under section 922(2) or
section 1042, may renew its corporate existence or its certificate of authority by
filing the annual reports under section 911 for the last 5 years or any lesser
number of years in which the reports were not filed and paying the annual filing
fees for all the years for which they were not paid, together with a penalty of
$5.00 for each delinquent report. When the reports are filed and the fees and
penalties are paid, the corporate existence or the certificate of authority is
renewed. The administrator may require that the corporation adopt or use in
this state a corporate name that conforms to the requirements of section 212.
(2) The rights of a corporation that complies with this section are the same as if
a dissolution or revocation has not taken place, and all contracts entered into
and other rights acquired during the interval are valid and enforceable.
84. Woodbury, 295 Mich. App. at 245, 814 N.W.2d. at 315.
85. Id.

850

WAYNE LAW REVIEW

[Vol. 60:837

give notice on the grounds that, sometime in the future, the corporation
might seek reinstatement.86 The court further noted:
It is not reasonable to require persons to give notice to a
nonexistent corporation on the contingent basis that at some
unknown time in the future, some unknown person might elect to
reinstate the corporation. Simply because someone can reinstate
a corporation under MCL 450.2925 does not mean anyone will.
And the law certainly should not require people to assume
otherwise. Indeed, some corporations that dissolve automatically
never seek reinstatement, even when they continue to do
business. Others fail to seek reinstatement even when attempting
to file suit in their own name.87
As a result, the court of appeals held that Center Woods was not
entitled to notice of the sale between Averill and Res-Care because
Center Woods did not exist at that time.88
The Michigan Supreme Court granted leave to appeal in 2012,
stating that the parties should address issues such as whether the de facto
corporation doctrine and/or the corporation-by-estoppel doctrine had
survived enactment of the Nonprofit Corporation Act.89 In 2013, the
supreme court ordered the parties to file supplemental briefs and invited
the Business Law Section, the Michigan Chamber of Commerce, and the
Department of Licensing and Regulatory Affairs to file amicus briefs
addressing additional issues such as whether section 925(2) of the
Nonprofit Corporation Act applies retroactively or prospectively;
whether renewal under section 925 permits an administratively dissolved
corporation to enforce contracts and rights not related to winding up; and
whether Bergy Brothers, Inc. v Zeeland Feeder Pig, Inc.90 had correctly
interpreted the analogous provision91 in the BCA.92 Although the
supreme court later delayed oral argument in the case due to a stipulation
by the parties, the attorney generals office sent a letter the [sic]
Supreme Court on October 9, 2013, on behalf of the [Corporations,
86. Id. at 244, 814 N.W.2d. at 317.
87. Id. at 249, 814 N.W.2d. at 31718 (footnotes omitted).
88. Id. at 251, 814 N.W.2d at 318.
89. Woodbury v. Res-Care Premier, Inc., 493 Mich. 881, 821 N.W.2d 888 (2012)
(citations omitted) (order granting leave to appeal).
90. 415 Mich. 286, 327 N.W.2d 305 (1982).
91. MICH. COMP. LAWS ANN. 450.1925 (West 2015).
92. Woodbury v. Res-Care Premier, Inc., 494 Mich. 879, 833 N.W.2d 330 (2013)
(order directing parties to file supplemental briefs); see also G. Ann Baker, Did You
Know?, 33 MICH. BUS. L.J., Fall 2013, at 5.

2015]

BUSINESS ASSOCIATIONS

851

Securities and Commercial Licensing] Bureau, urging the Court that

rather than simply dismissing the case upon the parties stipulation, the
Court also vacate the Court of Appeals decision given the mischief it
may cause if left in place.93
Eventually, in March 2014, the supreme court dismissed the appeal
because the parties had settled the case and stipulated that the appeal
should be dismissed.94 It did, however, vacate the prior decision of the
court of appeals. Whether one agrees with the court of appeals decision
or not, the unfortunate side effect of vacating the opinion is that it leaves
open the question of what effect an administratively dissolved
corporations later reinstatement has. Personally, I feel that the language
of section 925(2) of the Nonprofit Corporation Act is clear when it
provides that the rights of a corporation that complies with this section
are the same as if a dissolution or revocation had not taken place, and all
contracts entered into and other rights acquired during the interval are
valid and enforceable.95 I also believe that Bergy Bros., Inc. v Zeeland
Feeder Pig, Inc.,96 the case referred to by the supreme court in its 2013
order, was correctly decided. Granted, the facts of the Res-Care case
were very compelling for the defendants but, to modify a saying, bad
facts should not make bad law.
B. Madugula v. Taub
Although it was decided shortly after the Survey period ended,
Madugula v. Taub,97 which concerns Michigans shareholder-oppression
statute,98 is an important case, so a (relatively) short discussion of it is in
order here.99
In Madugula, the three shareholders of Dataspace, Inc. (Taub,
Madugula, and Flower) entered into a shareholder agreement that
provided that (1) Taub would be president, secretary, and treasurer of
Dataspace, and Madugula and Flower would be vice presidents; (2) the
93. Baker, supra note 92, at 6.
94. Woodbury, 495 Mich. at 961, 843 N.W.2d at 746 (2014).
95. MICH. COMP. LAWS ANN. 450.2925(2).
96. 415 Mich. 286, 327 N.W.2d 305 (1982).
97. 496 Mich. 685, 853 N.W.2d 75 (2014).
98. MICH. COMP. LAWS ANN. 450.1489 ([A] shareholder may bring an action in the
circuit court . . . to establish that the acts of the directors or those in control of the
corporation are illegal, fraudulent, or willfully unfair and oppressive to the corporation or
to the shareholder. If the shareholder establishes grounds for relief, the circuit court may
make an order or grant relief as it considers appropriate . . . .).
99. For another case involving oppression (this time of a member of an LLC) that was
decided after the Survey period ended, see Altobelli v. Hartmann, 307 Mich. App. 612,
861 N.W.2d 913 (2014).

852

WAYNE LAW REVIEW

[Vol. 60:837

corporation would have a five-person board, with Taub having the ability
to elect three directors and the other two shareholders having the ability
to elect one director each; and (3) approval by 70 percent of the shares
was necessary for material changes in the nature of the business,
compensation for the shareholders, or methods of determining
compensation for the shareholders.100
Flower later left the company, and Taub and Madugula each bought
some of his shares.101 Taub, however, remained the majority
shareholder.102 Some time later, with Dataspace allegedly struggling,
Taub switched the focus of Dataspace to marketing a new product that it
developed called JPAS, a software platform for jails.103 Madugula
argued that this was a material change from Dataspaces prior software
focus, but Taub claim[ed] that it was simply an attempt to market the
firms existing jail consulting products to other counties. At the time,
Madugula did not object to the new focus.104 Later in the same year,
Taub fired Madugula.105 Obviously, this meant that Madugula no longer
received a salary from Dataspace . . . .106 However, he remained a
director and shareholder (and even continued to receive dividends).107
Madugula later sued Taub for oppression under section 489 of the
BCA, among other causes of action.108 Taub filed a motion to have the
case heard in equity.109 He argued that Madugula did not have a right to a
jury trial for the oppression claim, relying on an unpublished court of
appeals opinion.110 The trial court disagreed and denied Taubs
motion.111 Eventually, a jury determined that Taub had oppressed
Madugula within the meaning of the statute, awarded Madugula nearly
$200,000 in damages, and also required Taub to buy Madugulas stock in
Dataspace for $1.2 million.112 Taub moved for a new trial, but the trial

100. Madugula, 496 Mich. at 69091, 853 N.W.2d at 7778. Note that such an
agreement would likely need to comply with section 489 of the BCA in order to be valid.
See MICH. COMP. LAWS ANN. 450.1489.
101. Madugula, 496 Mich. at 691, 853 N.W.2d at 78.
102. Id.
103. Id.
104. Id.
105. Id.
106. Id.
107. Id.
108. Id. at 692, 853 N.W.2d at 78.
109. Id. at 692, 853 N.W.2d at 79.
110. Forsberg v. Forsberg Flowers, Inc., No. 253762, 2006 WL 3500897 (Mich. Ct.
App. Dec. 5, 2006).
111. Magdula, 496 Mich. at 693, 853 N.W.2d at 79.
112. Id. at 693, 853 N.W.2d at 79.

2015]

BUSINESS ASSOCIATIONS

853

court denied this motion.113 The court of appeals affirmed in an

unpublished opinion.114 The supreme court granted leave to appeal,115
asking the parties to address: (1) whether claims brought under section
489 are equitable claims that must be decided by a court of equity; (2)
whether a shareholder agreement can create shareholder interests
protected by section 489; and (3) whether the plaintiffs interests as a
shareholder were interfered with disproportionately by the actions of the
defendant-appellant, where the plaintiff retained his corporate shares and
his corporate directorship.116
With respect to the issue of whether section 489 provides a right to a
jury trial, the court held that it did not. As the court wrote:
At issue in this case is whether the Legislatures inclusion of the
phrase [a]n award of damages indicates that it intended to
provide a 489 claimant seeking damages the right to a jury trial
when the language of 489 is read as a whole . . . . [A]ctual
damages is a term of art and is generally considered a legal
remedy that is traditionally tried by a jury. Thus, we
recognize that the inclusion of a damages remedy in a statute,
given the peculiar meaning it has acquired in our law, may be an
indication that the Legislature intended to provide a right to a
jury trial. However, when we consider the damages remedy
under 489(1)(f) as part of the statute as a whole, we cannot
conclude that the Legislature intended to attach a statutory right
to a jury trial to a claim for damages.
Under 489, once a shareholder establishes grounds for
reliefi.e., that oppression occurredthe circuit court may
make an order or grant relief as it considers appropriate,
including an award of money damages . . . . [T]his language
emphasizes the courts affirmative authority to award relief and
does not inherently contemplate another fact-finder whose
determinations the court may be effectuating. Indeed, through
the use of the word may, the phrase as it considers
appropriate, and, significantly, the statement that the court is
without limitation with respect to determining the appropriate
relief available, the Legislature provided the circuit court wide
113.
114.
2012).
115.
116.

Id.
Magdula v. Taub, No. 298425, 2012 WL 5290285 (Mich. Ct. App. Oct. 25,
Madugula, 494 Mich. 862, 831 N.W.2d 235 (2013).
Id.

854

WAYNE LAW REVIEW

[Vol. 60:837

discretion in deciding what relief, if any, should be awarded after

shareholder oppression is established . . . . [S]uch wide latitude
to fashion relief is consistent with an action in equity. So too is
the presence of damages within the nonexhaustive list of
remedies enumerated in 489, for while damages are generally
considered legal relief awarded by a jury, a court of equity is
likewise capable of awarding that relief.117
Further, the court found that there was no constitutional right to a
jury trial in a section 489 action because it was equitable in nature.118 As
such, a section 489 claim must be tried before court of equity in its
entirety.119 The result was that:
The trial court abused its discretion by not granting Taubs
motion for a new trial because Madugula did not have a right to
a jury trial for his 489 claim; instead, Taub had a right to have
the controversy heard by a court of equity. Because of the
equitable nature of Madugulas claim, the case should have been
tried at a bench trial. In addition, the trial court erred by allowing
the jury to consider the purely equitable remedy of a forced
buyout of stock . . . . [A]fter Madugula established his claim for
shareholder oppression, it was the job of the court sitting in
equity to fashion an appropriate remedy under 489, not
the jury. Therefore, the trial court erred by allowing a jury trial
on Madugulas 489 claim.120
The court further held that even when a court uses an advisory jury
under Michigan Court Rule 2.509(D) to decide factual issues, the court
must still state its own findings of the facts and conclusions of law,121
which did not happen in this case. As such, the supreme court remanded
the case to the trial court to determine whether, on the present record, it
can make the requisite findings of fact and conclusions of law . . . or
whether a new trial is necessary.122
However, the court did hold that a breach of the shareholders
agreement described above could be used as evidence of oppression
under the statute. At first, this conclusion seems obvious because the
117. Madugula, 496 Mich. at 70103, 853 N.W.2d. at 8384 (footnotes omitted)
(citations omitted).
118. Id. at 70415, 853 N.W.2d at 8591.
119. Id. at 715, 853 N.W.2d at 91.
120. Id. at 71517, 853 N.W.2d at 9192 (footnotes omitted) (citations omitted).
121. Id. at 71617, 853 N.W.2d at 92.
122. Id. at 717, 853 N.W.2d at 92.

2015]

BUSINESS ASSOCIATIONS

855

shareholder agreement had to do with the plaintiffs rights as a

shareholder and the statute defines oppression (or, more precisely,
willfully unfair and oppressive conduct) in part as a continuing course
of conduct or a significant action or series of actions that substantially
interferes with the interests of the shareholder as a shareholder.123
However, Taub argued that contractual rights could not give rise to an
oppression claim.124 Apparently, the thinking was that contractual rights
and shareholder rights are two separate things; the statute provides that
willfully unfair and oppressive conduct does not include conduct or
actions that are permitted by an agreement, the articles of incorporation,
the bylaws, or a consistently applied written corporate policy or
procedure.125
The court correctly determined that Taub was wrong in this
argument; as the court observed, Taub fails to recognize that several of
the rights modified in the stockholders agreement were Madugulas
rights as a shareholder.126 As such, a breach of the agreement could be
considered as evidence of oppression, a result that no one should find
surprising given the nature of the agreement at issue in the case.
C. Shotwell v. Department of Treasury
In Shotwell v. Department of Treasury,127 which has been vacated in
part,128 the court held that the petitioner, Deena Shotwell, was not
personally liable for certain unpaid tax obligations of Peoples True
Taste (PTT), a Kentucky corporation. Specifically, PTT had unpaid
assessments under the Michigan Tobacco Products Tax Act.129 The
Department of Treasury argued that she was personally liable for these
amounts as a result of section 27a(5) of the Revenue Collection Act,
which generally provides that if a business fails to pay any of several
specified taxes, any of its officers, members, managers of a managermanaged limited liability company, or partners who the department
determines, based on either an audit or an investigation, is a responsible
123. MICH. COMP. LAWS ANN. 450.1489(3) (West 2015).
124. Madugula, 853 N.W.2d at 719, 853 N.W.2d at 93.
125. MICH. COMP. LAWS ANN. 450.1498(3).
126. Madugula, 496 Mich. at 719, 853 N.W.2d at 93.
127. 305 Mich. App. 360, 853 N.W.2d 414 (2014).
128. On March 25, 2015, outside of the Survey period, the Michigan Supreme Court
issued an order vacating the part of the court of appeals opinion related to de facto
officers, holding that the court of appeals had erred in concluding that there was a
material issue of fact as to whether the petitioner was a de facto officer; the supreme
court denied the application for leave to appeal for all other issues. Shotwell v. Dept of
Treasury, No. 150024, 2015 WL 1402168 (Mich. Mar. 25, 2015).
129. MICH. COMP. LAWS ANN. 205.421205.436.

856

WAYNE LAW REVIEW

[Vol. 60:837

person will be personally liable for the taxes.130 A responsible person

is defined as an officer, member, manager of a manager-managed
limited liability company, or partner for the business who controlled,
supervised, or was responsible for the filing of returns or payment of any
of the [specified] taxes . . . during the time period of default and who,
during the time period of default, willfully failed to file a return or pay
the tax due for any of the [specified] taxes . . . .131 Meanwhile, the time
period of default is defined as the tax period for which the business
failed to file the return or pay the tax due . . . and through the later of the
date set for the filing of the tax return or making the required
payment.132
The unpaid tobacco taxes at issue in Shotwell were with respect to
the years 2006 and 2007. However, Mrs. Shotwell technically did not
become an officer or director of PTT until October 29, 2010. Before that
time, things were a little murky. Until March 17, 2007, her husband,
William Shotwell, was the sole shareholder and director of PTT.133 After
William died, Mrs. Shotwell and her daughter, Suzanne, were appointed
as co-administrators of Williams estate and empowered by a Kentucky
court to conduct any business that [William] could have conducted
with respect to PTT.134 Afterward, Mrs. Shotwell, while technically not
being an officer, director, or shareholder of PTT, signed a tobacco
products tax filing for PTT listing herself as co-owner and checking a
box indicating that her role was to prepare tax returns; signed a power
of attorney on behalf of PTT on which she indicated that her title was
president; signed state and federal tax returns for PTT as principal
officer or chief accounting officer; and listed herself as the president
and a director of PTT on its 2007 annual report to the State of Kentucky.
On October 29, 2010, Mrs. Shotwell and her daughter officially
became directors of PTT and Mrs. Shotwell officially became its
President and:
[u]pon their appointment to these positions, [Mrs. Shotwell] and
Suzanne ratified and approved their previous activities
130. Id. 205.27a(5).
131. Id. 205.27a(15)(b).
132. Id. 205.27a(15)(c). The language of this statute was somewhat different in 2006
and 2007, the time periods for which the tobacco taxes at issue in Shotwell were assessed.
However, the court of appeals found that amendments to the statute that took effect in
2014 should be applied retroactively. See Shotwell, 305 Mich. App. at 36770, 853
N.W.2d at 41519. Thus, the court applied the current version of the statute to the facts of
the case.
133. Id. at 363, 853 N.W.2d at 415.
134. Id. at 36263, 853 N.W.2d at 415.

2015]

BUSINESS ASSOCIATIONS

857

undertaken on behalf of PTT. In particular, the resolution for

their appointment as directors provided that: all acts of Deena
Shotwell and/or Suzanne Shotwwell [sic] taken in their capacity
as directors of the Corporations [sic] since the death of
[William] Shotwell . . . are ratified. Similarly, the resolution
appointing officers provided that all acts of Deena Shotwell
and/or Suzanne Shotwwell [sic] heretofore taken in their
capacity as officers of the Corporation . . . are ratified and
approved.135
In the meantime, the Department of Treasury had notified PTT of
unpaid tobacco tax assessments for 2006 and 2007.136 Because PTT
never appealed these assessments in a timely manner, they became
final.137 And because these amounts were never paid, the Department of
Treasury sought payment from Mrs. Shotwell, arguing that she was an
officer of PTT who was personally liable for taxes.138 However, the
Michigan Tax Tribunal disagreed, finding that she was not a responsible
person at the relevant times, that is, 2006 and 2007.139 The Department
of Treasury then appealed to the court of appeals.140
The court of appeals found in favor of Mrs. Shotwell, finding that the
plain language of the statute meant that she could only be personally
liable for the taxes if she had been an officer of PTT during 2006 or 2007
or before the tax payments or returns for those years were due (which
would be by April 15 of the following years).141 As the court observed:
[A]n officer may only be held personally liable when he or she
controlled, supervised, or was responsible for filing returns or
paying taxes during the time period of default, which consists
of the relevant tax period extending to the later of the date set
for the filing of the tax return or making the required payment.
Conversely, it follows that an individual who did not control,
supervise, or bear responsibility for filing returns or paying taxes
during the relevant timeframe may not be held personally liable.
Thus, an officer assuming his or her position after taxes come
due and after the date for filing the return has passed, is not a
responsible person for the corporations failures in respect to
135.
136.
137.
138.
139.
140.
141.

Id. at 363, 853 N.W.2d at 41516.

Id. at 363, 853 N.W.2d at 415.
Id.
Id. at 363, 853 N.W.2d at 41516.
Id. at 365, 853 N.W.2d at 416.
Id.
Id. at 416419, 853 N.W.2d at 36670.

858

WAYNE LAW REVIEW

[Vol. 60:837

these obligations and is, therefore, not personally liable under

[the statute].142
However, the Department of Treasury then argued that Mrs.
Shotwell was a de jure and/or a de facto officer of PTT during these
periods and therefore should be personally liable for the taxes.143 With
respect to the first argument, the court disagreed, finding that a de jure
officer of a corporation is a duly authorized corporate officer, which
means one appointed in accordance with the corporations bylaws.144
Although the Kentucky probate court had essentially given Mrs.
Shotwell the same powers that an officer of PTT would have, that
appointment nonetheless did not make her a de jure officer because the
court obviously did not appoint her to an officer position pursuant to
PTTs bylaws.145
What about whether Mrs. Shotwell was a de facto officer of PTT
during the relevant periods? The court of appeals first observed that a de
facto officer is a person acting under color of right and with apparent
authority, but who is not legally a corporate officer, and who is in
possession of the office, and . . . [is] exercising its duties under an
appearance of right, while not being an officer . . . de jure, by reason of
ineligibility or lack of qualification, or being unlawfully elected.146
Under the facts of this case, Mrs. Shotwell might be considered a de
facto officer of PTT:
In this case, the facts could reasonably give rise to the conclusion
that petitioner was a de facto officer of the corporation following
Williams death. Acting on the authority of the district court,
petitioner signed numerous documents on PTTs behalf,
including tax-related documents, she made decisions for PTT,
and she indicated her status at various times as co-owner,
president, and principal officer or chief accounting officer.
She also drew a salary from the corporation. When the estate was
settled, petitioner and Suzanne were the only shareholders, they
proceeded to formally elect themselves as directors and officers,
and, tellingly, they ratified their previous conduct heretofore
taken in their capacity as officers . . . . (Emphasis added.) These
facts could reasonably give rise to the conclusion that petitioner
142.
143.
144.
145.
146.

Id. at 36970, 853 N.W.2d at 419 (citations omitted).

Id. at 370, 853 N.W.2d at 419.
Id. at 37071, 853 N.W.2d at 419 (citation omitted).
Id. at 371, 853 N.W.2d at 419.
Id. at 37172, 853 N.W.2d at 420 (citations omitted).

2015]

BUSINESS ASSOCIATIONS

859

qualified as a de facto officer with responsibility for PTTs taxes.

Consequently, a material question of fact may have remained
regarding petitioners status as a de facto officer and her role in
the preparation of PTTs taxes.147
Nonetheless, it ultimately would not matter whether Mrs. Shotwell
was a de facto officer of PTT. This is because the court found that the
plain language of section 27a(5) of the Revenue Collection Act only
applies to officers; because it makes no mention of de facto officers
as well, de facto officers cannot be personally liable for unpaid taxes
under the statute.148 As such, Mrs. Shotwell dodged a bullet (pun
intended).
D. Other Cases
Readers who are interested in business law may find a few other
decisions that were reported during the Survey period to be instructive,
although this article will only discuss them briefly. First, Bellevue
Ventures, Inc. v. Morang-Kelley Investment, Inc.149 contains a helpful
discussion of apparent authority, which is one theory under which the
actions of an agent (or other person) can bind a principal to a contract
with a third party.150 Also, the Bellevue court held that the fact that the
plaintiff sold equipment to the defendant under the name of a nonexistent corporation did not give the defendant a defense to the plaintiffs
claim for unjust enrichment.151

147. Id. at 372, 853 N.W.2d at 420. As discussed supra note 128, however, the
Michigan Supreme Court vacated this part of the opinion, holding that the court of
appeals erred when it concluded that there was a material question of fact as to whether
Ms. Shotwell was a de facto officer. Shotwell v. Dept of Treasury, No. 150024, 2015
WL 1402168 (Mich. Mar. 25, 2015).
148. 305 Mich. App. at 37273, 853 N.W.2d at 42021.
149. 302 Mich. App. 59, 836 N.W.2d 898 (2013).
150. Id. at 6465, 836 N.W.2d at 902. Citing a prior case, the court ruled that apparent
authority is when:
the principal, by statements or conduct, places the agent in a position where he
appears with reasonable certainty to be acting for the principal, or without
interference suffers the agent to assume such a position, and thereby justifies
those dealing with the agent in believing that he is acting within his mandate,
an apparent authority results which replaces that actually conferred as the basis
for determining rights and liabilities.
Id. at 65, 836 N.W.2d at 902 (citation omitted); see also Wienhold v. Pearsall, No.
303635, 2013 WL 3198129, at *79 (Mich. Ct. App. June 25, 2013).
151. Bellevue, 302 Mich. App. at 64, 836 N.W.2d at 90102.

860

WAYNE LAW REVIEW

[Vol. 60:837

Second, AFP Specialties, Inc. v. Vereyken152 concerned, among other

things, whether a land contract vendee could be considered an implied
agent of a land contract vendor. Under the facts of the case, the court
held that there was no implied agency because the vendor did not have
the requisite control over the vendee,153 but the case contains a helpful
discussion of when such an agency relationship would arise. Specifically,
the court ruled that the facts and circumstances giving rise to an implied
agency must be (1) known to the alleged principal, (2) within the control
of the alleged principal, and (3) either explicitly acknowledged or at least
acquiesced in by the alleged principal.154
The discussion of Madugula v. Taub155 above probably violates the
rule that this Article should only discuss decisions from the Survey
period. While I will not break that rule again with an extended discussion
of another case outside the Survey period, readers who are interested in a
good discussion of several aspects of partnership law should read Urbain
v. Beierling,156 a 2013 decision from the Michigan Court of Appeals.
III. NOTABLE UNPUBLISHED DECISIONS
There were also a few interestingbut unpublished157opinions
from Michigan courts involving business associations during the Survey
period.158
152. 303 Mich. App. 497, 844 N.W.2d 470 (2013).
153. Id. at 50411, 844 N.W.2d at 47680.
154. Id. at 507, 844 N.W.2d at 478 (citation omitted). This theory of implied agency
appears to be more similar to estoppel under section 2.04 of the Restatement (Third) of
Agency than to either of the other types of contractual authority an agent may have under
the Restatement, which are actual authority and apparent authority. See RESTATEMENT
(THIRD) OF AGENCY 2.012.03, 2.05 (2006).
155. 496 Mich. 685, 853 N.W.2d 75 (2014); see supra notes 97115 and
accompanying text.
156. 301 Mich. App. 114, 835 N.W.2d 455 (2013).
157. Under the Michigan Court Rules, an unpublished opinion is not precedentially
binding under the rule of stare decisis. MICH. CT. R. 7.215(c). Subsection (b) of this rule
lists the situations in which an opinion must be published.
158. See also Banker & Brisebois Co. v. Maddox, No. 310993, 2014 Mich. App.
LEXIS 798 (Apr. 29, 2014) (holding that accountants did not owe fiduciary duties to
clients). Banker also contains a good discussion of when the actions of a partner will bind
the partnership to a contract with a third party. Id. at *2830. There were two more
somewhat interesting unpublished cases that were decided shortly after the Survey period
ended. Both of these cases involved, among other things, claims of either shareholder or
LLC member oppression. See BSA Mull, LLC v. Garfield Invest. Co., Nos. 310989,
311911, 315359, 315544, 2014 WL 4854306 (Mich. Ct. App. Sept. 30, 2014); Goldberg
v. First Holding Management Co., No. 314874, 2014 WL 5066163 (Mich. Ct. App. Oct.
9, 2014).

2015]

BUSINESS ASSOCIATIONS

861

In English Trust v. Equity Logistics, Inc.,159 the plaintiff, a

shareholder in Equity Logistics, Inc., sued the corporation and various
other defendants for oppression under section 489 of the BCA.160 The
trial court awarded the plaintiff $50,000 based on a case evaluation that
was accepted by all of the parties.161 After the defendants did not pay the
judgment, the plaintiff submitted a proposed order that mirrored the
case evaluation award.162 The defendants objected; one of their
arguments was that the court should find that the entire stock issue
matterpast, present, and futurehas been resolved.163 Nonetheless,
the trial court entered the proposed order.164 The defendants then
appealed, arguing that the case evaluation award reflected the value of
plaintiffs interest in [the corporation], and that the award therefore
terminated any interest plaintiff had in that corporation.165
The court of appeals disagreed, finding that the case evaluation was
clear on its face: it simply declared that plaintiff was entitled to a
monetary award of $50,000 and made no mention of the effect, if any,
the case evaluation had on plaintiffs interest in Equity Logistics.166 As
such, the plaintiff was still a shareholder in the company, which meant
that the defendants argument that claims for future violations should be
barred failed.167 The lesson of this case for defense counsel is to be
careful in accepting any proposed settlements or case evaluations of
oppression lawsuits. While such lawsuits often are resolved by the
defendants purchasing the plaintiffs shares for fair value,168 the language
of the case evaluation and proposed order in English Trust clearly did not
have that effect. Nor, for that matter, did any of the defendants actually
redeem or purchase the shares. That being the case, the plaintiffs shares
obviously still existed.
Turner v. J & J Slavik, Inc.169 featured a somewhat similar scenario;
the question was whether the plaintiffs shares still existed, that is,
whether the defendant corporation hador had notredeemed them
159. No. 314057, 2014 Mich. App. LEXIS 564 (Mar. 27, 2014).
160. MICH. COMP. LAWS ANN. 450.1489 (West 2015); see supra note 98.
161. English Trust, 2014 Mich. App. LEXIS 564 at *1.
162. Id. at *2.
163. Id.
164. Id.
165. Id.
166. Id. at *3.
167. Id. at *34.
168. Cf. MICH. COMP. LAWS ANN. 450.1489(1)(e) (West 2015) (Relief in an
oppression lawsuit could include the purchase at fair value of the shares of a
shareholder, either by the corporation or by the officers, directors, or other shareholders
responsible for the wrongful acts.).
169. No. 313936, 2014 Mich. App. LEXIS 673 (April 15, 2014).

862

WAYNE LAW REVIEW

[Vol. 60:837

more than a decade earlier.170 More specifically, the plaintiff was a

shareholder and an employee of the defendant corporation.171 The parties
had an agreement that provided that if the plaintiffs employment with
the corporation was terminated, the corporation would redeem all of his
shares.172 The purchase price would be the fair market value of the shares
as of the last day of the previous month.173 Meanwhile, fair market
value was defined as the amount of [the corporations] assets less the
amount of its liabilities (book value) . . . divided by the number of shares
outstanding.174 Although difficult to discern from the opinion, it appears
that the agreement also contained provisions whereby the shares (or the
companys assets) would be valued by up to three appraisers if the
parties did not agree upon a valuation.175 It also contained provisions
calling for a closing within thirty days after the price was determined and
requiring the parties to execute and deliver necessary instruments to
conduct the closing.176
After the plaintiffs employment was terminated in January 1992, the
corporation sent him a letter stating that it did not owe him anything for
his shares, apparently because the book value of the shares (as defined
above) as of the end of the prior month was negative, and paying the
plaintiff for his shares would therefore violate the BCA.177 The letter
further stated that by necessary implication, the [agreement] indicates
that there be no redemption of stock having a negative value under the
valuation provisions of the [a]greement.178 Apparently, nothing
happened for a long time afterward; the plaintiff did not challenge that
assertion at the time, and the defendant corporation did not follow the
procedures set forth in the agreement as to how to determine the
valuation of the shares.179 Years later, however, the question arose as to

170. Id. at *1.

171. Id.
172. Id. at *23.
173. Id. at *3.
174. Id. at *3.
175. See id. at *6.
176. See id. at *11.
177. The BCA provides that a distribution (which includes a stock redemption) may
not be made if it would render the corporation unable to pays its debts as they become
due in the ordinary course of business, or if the payment would result in the corporations
assets being less than its liabilities (plus, if applicable, the liquidation preferences of
shares who have superior rights to the shares receiving the distribution, such as
preferred stock). MICH. COMP. LAWS ANN. 450.1106(4), 450.1345(3) (West 2015).
178. Turner, 2014 Mich. App. LEXIS at *4.
179. See id. at *45.

2015]

BUSINESS ASSOCIATIONS

863

whether the plaintiffs shares had been redeemed in 1992 or whether they
still existed.180
The trial court found for the corporation, reasoning that the
termination of the plaintiffs employment instantly terminated
[p]laintiffs status as a shareholder, creating an unconditional
obligation for [p]laintiff to transfer his shares to [d]efendant.181 Further,
because the plaintiffs stock had a negative value at that time, the trial
court found that there was no need for [d]efendant to write [p]laintiff a
check for zero to redeem the stock . . . .182 The court of appeals,
however, observed that:
The flaw with this conclusion is that it relies on the trial
testimony of . . . defendants former attorney, to value plaintiffs
shares in defendant, when the parties specifically established a
valuation procedure that was not used. Only after that procedure
was followed would it then have been between plaintiff and
defendant to decide whether any payment was warranted. The
bargained-for valuation procedure was substantially more
transparentproviding, if necessary, for three real-estate
appraisersthan the unsupported claims plaintiff received from
defendant, and plaintiff had a right to be secure in the knowledge
that his shares had no objective value.183
In sum, the plaintiffs stock had never actually been redeemed.184
The court thus reversed the trial courts opinion and remanded the case
with instructions to enter a judgment that the plaintiff was still a
shareholder of the defendant.185 One wonders what these shares were
worth in 2014. Even if the shares did have a negative fair market value in
1992, this case serves as a cautionary tale to carefully follow agreements,
even if doing so may seem like a waste of time.
In Wienhold v. Pearsall,186 the trial court held that a corporation was
neither a de jure corporation nor a de facto corporation because even
though its articles of incorporation had been properly filed in the state of
New York, it had never held any shareholder or director meetings and
had not issued any shares before the events in the case occurred.187 As a
180.
181.
182.
183.
184.
185.
186.
187.

See id. at *5.

Id.
Id. at *56.
Id. at *6.
Id.
Id. at *11.
No. 303635, 2013 WL 3198129 (Mich. Ct. App. June 25, 2013).
Id. at *11.

864

WAYNE LAW REVIEW

[Vol. 60:837

result, the trial court found two of the corporations officers personally
liable on a promissory note that had been signed in the corporations
name.188 The court of appeals correctly reversed, discussing the
corporation-by-estoppel theory, which holds that a person who deals with
an entity as a corporation will be estopped from later claiming that it was
not a corporation and that its officers or owners should therefore be
personally liable for its debts.189
Ward v. Idsinga190 involved many legal issues, but one interesting
aspect of the case was its discussion of the effect that a failure to follow a
corporations bylaws would have on a transaction. In the case, the
corporations bylaws provided that the shareholders could take action
without a meeting if the holders of a majority of the voting shares signed
a written consent resolution approving the action, as permitted by the
BCA.191 However, the bylaws also provided that, unless all of the
shareholders had been solicited to sign a written consent resolution,
prompt notice had to be given to the shareholders who had not signed the
consent resolution.192 Specifically, as to approvals [of transactions] (i)
in which a director has a financial interest, . . . notice of the approval will
be given at least 10 days before the consummation of any action
authorized by the approval.193
Simplifying the facts greatly, a transaction in which some of the
directors had a financial interest was approved by a written consent
resolution by the holders of a majority of the shares.194 However, the
corporation never sent the notice required by the bylaws to the other
shareholders.195 As a result, the court held that the transaction was
void.196 The case contains a very interesting discussion of how cases in
other jurisdictions have treated corporate transactions that were not
approved in accordance with statutes and/or a corporations articles or
bylaws, and when a director is deemed to have a financial interest in a
transaction.197

188. Id.
189. Id. at *10.
190. No. 302731, 2013 WL 4404246 (Mich. Ct. App. Aug. 15, 2013).
191. Technically, such a provision must be in the corporations articles, but I assume
that the corporation in Ward did have such a provision in its articles. See MICH. COMP.
LAWS ANN. 450.1407(1) (West 2015).
192. Ward, 2013 WL 4404246 at *4.
193. Id. at *4.
194. Id. at *12.
195. Id. at *13.
196. Id.
197. Id. at *38.

2015]

BUSINESS ASSOCIATIONS

865

Souden v. Bleich198 discusses the difference between a joint

venture and a joint enterprise. An extended discussion of the facts
probably is not helpful; essentially, the plaintiff made strainedand
unsuccessfularguments that the attorney whom he had originally hired
to handle his divorce case in Berrien County was engaged in a joint
venture and/or a joint enterprise with the attorney who later took over
the case when it was re-filed in Oakland County.199
In discussing the issues, the court noted that while many people use
these terms interchangeably, joint ventures and joint enterprises are
separate legal concepts.200 A joint venture is an association to carry out
a single business enterprise for a profit and requires six elements: (a)
an agreement indicating an intention to undertake a joint venture; (b) a
joint undertaking of; (c) a single project for profit; (d) a sharing of profits
as well as losses; (e) contribution of skills or property by the parties;
[and] (f) community interest and control over the subject matter of the
enterprise.201 On the other hand, a joint enterprise requires that every
member have management and control of the enterprise, a right to be
heard, and an equal right of control and joint responsibility for decision
making and expenses.202 Unlike a joint venture, no profit-sharing is
required to find a joint enterprise.203 One thing that the two concepts
have in common, however, is that all of the members of a joint venture or
joint enterprise will be liable for actions of the other members, such as
negligence.204
One can be forgiven for not grasping the distinction between a joint
venture and a joint enterprise (or appreciating why it is significant).
Indeed, the court in Lego v. Liss205 did not seem to understand this either.
In Lego, the allegation was the plaintiff and the defendanttwo police
officers in two different police task forceswere engaged in a joint
venture.206 (Confusingly, this apparently would have meant that the
parties were co-employees and that the plaintiffs exclusive remedy for
injuries he suffered when the defendant shot him would be under the
workers compensation statute.) Citing Berger v. Mead, the same case
relied on by the Souden court discussed above, the Lego court found that
198. No. 314143, 2014 Mich. App. LEXIS 728 (Apr. 17, 2014).
199. Id. at *614.
200. Id. at *8.
201. Id. at *89 (citing Berger v. Mead, 129 Mich. App. 209, 338 N.W.2d 919 (1983)).
202. Id. at *9 (quoting Helsel v. Morcom, 219 Mich. App. 14, 2122, 555 N.W.2d 852,
855 (1996)).
203. Id. at *910.
204. Id.
205. Nos. 312392, 312406, 2014 Mich. App. LEXIS 552 (Mar. 27, 2014).
206. Id. at *1, *56

866

WAYNE LAW REVIEW

[Vol. 60:837

a joint venture has the following six elements: an agreement showing an

intention to undertake a joint venture, a joint undertaking, a single
project, involving the contribution of skills or property by the parties,
involving community interest, and control over the subject matter.207
Note that there is no mention of profit-sharing or, for that matter,
anything to indicate that a joint venture must be business-related.
Strangely, this is a somewhat correct reading of Bergeralthough it is
correct only insofar as joint enterprises are concerned, not joint ventures.
This is because even though Berger did list profit and loss sharing as one
of the requirements for a joint venture, that case also found that noncommercial undertakings (like Lego, Berger also involved a police task
force) can be joint enterprises.208

207. Id. at *6 (citing Berger v. Mead, 129 Mich. App. 209, 215, 338 N.W.2d 919, 922
(1983)).
208. See Berger, 129 Mich. App. at 21516, 338 N.W.2d at 923.

GOVERNMENT LAW
PATRICIA PARUCH
I. INTRODUCTION .................................................................................. 867
A. Zoning and Land Use................................................................. 867
B. Municipal Finance ..................................................................... 877
C. Local Ordinance Preemption by State Law............................... 882
I. INTRODUCTION
This Article will focus on opinionsissued during the Survey
periodof some significance to the multiple local units of government in
Michigan (276 cities, 257 villages, and 1,240 townships), rather than
counties or state government. This Article will not discuss court
decisions in the area of public employee labor law, which followed the
enactment of Michigans right-to-work legislation in 2012, even though
those decisions are of significant importance to larger cities and state
government.1 Because almost all local units of government deal regularly
with issues involving zoning and land use; finance; and police powers to
protect public health, safety, and welfare; this Article will focus on those
topics.
A. Zoning and Land Use
The Michigan Supreme Court and the Michigan Court of Appeals
together issued three opinions of note during the Survey period
concerning a local unit of governments power and authority to regulate
private land uses through zoning and other ordinances. These three cases
involved relatively new interpretations of both constitutional rights as
they apply to a particular land use, as well as the authority of a
municipality to use its police power to protect the community.
The first of these cases dealt with a persistent public health and
safety issue in the context of private property rights. A number of local
governments in Michiganin both rural and urban areasstruggle to
Shareholder, Kemp Klein Law Firm. B.A., 1972, summa cum laude, University of
Detroit; J.D., 1992, Wayne State University.
1. See, e.g., UAW v. Green, 302 Mich. App. 246, 284, 839 N.W.2d 1, 21 (2013)
(holding that the new right-to-work statute applies to state employees).

867

868

WAYNE LAW REVIEW

[Vol. 60:867

eliminate blight.2 Most municipalities have ordinances that provide local

officials with the power and authority to order a building razed if it is
deemed unsafe.3 In 2013, the Michigan Legislature amended the Home
Rule Cities Act4 to give larger municipalities more enforcement tools to
fight blight, such as new civil and criminal penalties.5
In Bonner v. City of Brighton,6 the owners of a blighted property
sued the City of Brighton when it ordered the demolition of the owners
deteriorating buildings.7 Under the Brighton ordinance, the city may
order a building demolished if a city inspection determines that the cost
to repair exceeds 100% of the true cash value of the building before it
deteriorated.8 The ordinance specifically contains an unreasonable-torepair presumption that permits the city to order the building
demolished without option on the part of the owner to repair.9
In January 2009, city officials inspected the plaintiffs buildings and
determined that the cost of repairs would exceed 100% of the taxable
value.10 The city sent a notice to the owners asserting that the cost to
repair would exceed 100% of the value and ordering that the buildings be
demolished within sixty days.11 The owners requested a review of the
building officials determination by the city council as well as a hearing
as provided by the ordinance.12 When the council deliberations were
stayed to allow further inspections, the owners denied city inspectors
access to the building interior.13 After obtaining warrants, the city
inspected the buildings again in May and found over forty-five unsafe
conditions.14 The city held a hearing on the matter in June, agreed that
the cost of repairs exceeded 100% of the value, and in July 2009 ordered
demolition within sixty days.15 Rather than appealing the citys decision
2. Emily Lawler, 12 Michigan Cities to Get Federal Assistance Fighting Blight,
MLIVE
(Dec.
16,
2014,
2:36
PM),
http://www.mlive.com/lansingnews/index.ssf/2014/12/12_michigan_cities_to_get_fede.html.
3. See, e.g., BATTLE CREEK, MICH., CODIFIED ORDINANCES ch. 1454 (2015); BIRCH
RUN, MICH., CODE OF ORDINANCES ch. 152 (2013); CLINTON TWP., MICH., CODIFIED
ORDINANCES ch. 1468 (2013).
4. MICH. COMP. LAWS ANN. 117.1117.38 (West 2015).
5. 2013 Mich. Pub. Acts 188192.
6. 495 Mich. 209, 848 N.W.2d 380 (2013).
7. Id. at 21415, 848 N.W.2d at 38485.
8. BRIGHTON, MICH., CODE OF ORDINANCES 18-59 (2014).
9. Id.
10. Bonner, 495 Mich. at 215, 848 N.W.2d at 38485.
11. Id. at 216, 848 N.W.2d at 385.
12. Id.
13. Id.
14. Id.
15. Id. at 21617, 848 N.W.2d at 386.

2015]

GOVERNMENT LAW

869

to the circuit court, the owners sued, claiming various constitutional

violations.16
The owners claimed that the unreasonable-to-repair presumption
violated both substantive and procedural due processes by permitting
demolition without giving the owners an opportunity to repair as a matter
of right.17 Both the circuit court and the court of appeals agreed that the
ordinance violated substantive due process by permitting the city to order
demolition without providing the owner with an option to repair, even
when the cost to repair exceeded the taxable value of the buildings.18
The supreme court reversed, holding that the unreasonable-to-repair
presumption did not violate either substantive or procedural due
process.19 As for substantive due process, the court first explained that
[w]here the right asserted is not fundamental, the governments
interference with that right need only be reasonably related to a
legitimate governmental interest.20 The court concluded that the right to
repair has never been granted by any court when the property has fallen
into such disrepair as to create a risk to the health and safety of the
public, so the right to repair is not a fundamental right.21 The court
further held that the unreasonable-to-repair presumption bears a
reasonable relationship to the governmental interest of protecting the
public health, safety, and welfare.22 The court suggested that a property
owner can satisfy the reasonableness requirement by showing that the
cost of repair will not exceed 100% of the taxable value, or that the
structure has some sort of cultural, historical, familial, or artistic
value.23 The court did not offer any analysis, nor relevant citations, to
explain its choice of these four subjective values.
As to the procedural due process claims, the court stated that all that
is necessary for the procedures to be constitutionally appropriate is that
they are tailored to the capacities and circumstances of those who are
to be heard to ensure that they are given a meaningful opportunity to
present their case before they are permanently deprived of their
property.24 The court concluded that the citys procedures afforded to the
owners were sufficient to allow the property owner an opportunity to
16. Id. at 218, 848 N.W.2d at 386.
17. Id.
18. Id. at 21819, 848 N.W.2d at 387.
19. Id. at 241, 848 N.W.2d at 39899.
20. Id. at 227, 848 N.W.2d at 391.
21. Id. at 228, 848 N.W.2d at 392.
22. Id. at 23031, 848 N.W.2d at 393.
23. Id. at 233, 848 N.W.2d at 394.
24. Id. at 23839, 848 N.W.2d at 397 (quoting Goldberg v. Kelly, 397 U.S. 254, 268
69 (1969)).

870

WAYNE LAW REVIEW

[Vol. 60:867

rebut the ordinances unreasonable-to-repair presumption.25 The court

rejected the court of appeals reliance on cases from other jurisdictions
that found similar ordinances to be unconstitutional.26 In those cases, the
court noted, demolition was required.27 Under the Brighton ordinance,
demolition orders by local officials are permissive, not mandatory.28 City
officials may order demolition, but are not required to issue that
order.29 The court concluded that the citys processes provided the
owners with adequate opportunity to present their case before a final
demolition order was issued.30
In the year since the Bonner decision was issued, commentators have
criticized the decision for departing from longstanding precedents in
Michigan and across the country protecting due process rights.31 In
holding that the Brighton ordinance violated the building owners due
process rights, both the trial court and the Bonner court of appeals panel
relied in part on cases from other jurisdictions, treatises, and the earlier
Michigan Supreme Court decision in Commissioner of State Police v.
Anderson,32 which stated that something less than destruction of the
entire building should be ordered where such will eliminate the danger or
hazard.33 The Bonner Supreme Court opinion did not mention the
Anderson case.34
In a similar vein, Michigan municipalities have frequently turned to
restrictive or even exclusionary zoning practices to limit or completely
eliminate a proposed property use that they believe may negatively
impact the health, safety, and welfare of the community. Such unpopular
uses have included mobile home parks, billboards, mineral mines, and
state licensed residential facilities.35 Michigan courts have consistently
held that most of these specific exclusionary zoning practices are
unconstitutional,36 and the Michigan Legislature has amended the Zoning

25. Id. at 239, 848 N.W.2d at 39798.

26. Id. at 231 n.52, 848 N.W.2d at 394 n.52.
27. Id.
28. Id.
29. Id.
30. Id. at 241, 848 N.W.2d at 399.
31. Norman Hyman, Bonner v. City of Brighton: A Critique of the Michigan Supreme
Courts Decision on How to Abate a Public Nuisance, 41 MICH. REAL PROP. REV.
(forthcoming 2015) (manuscript at 1).
32. 344 Mich. 90, 73 N.W.2d 280 (1955).
33. Id. at 9596, 73 N.W.2d at 28283.
34. See Bonner, 495 Mich. 209, 848 N.W.2d 380 (2013).
35. See infra note 36.
36. See Landon Holdings, Inc. v. Grattan Twp., 257 Mich. App. 154, 667 N.W.2d 93
(2003) (mobile home parks); Outdoor Sys. Inc. v. City of Clawson, 262 Mich. App. 716,

2015]

GOVERNMENT LAW

871

Enabling Act (ZEA)37 to prohibit the exclusion of any particular land use
within the municipality if there is a demonstrated need for the use.38
Occasionally the Michigan Legislature will further regulate the types
of zoning restrictions that can be placed on a particular use. For example,
in 2012 the Legislature adopted amendments to the ZEA to regulate the
siting and operation of mineral mines, including gravel pits.39 The
amendments allow a prospective mineral developer to overcome a local
zoning prohibition on mine development by demonstrating that the
property at issue contains valuable mineral deposits, a public need exists
for such minerals, and no very serious consequences would result from
the proposed mineral extraction process.40
The City of Wyoming adopted a zoning ordinance that was similarly
restrictive in order to prevent marijuana use in the community.41 A
provision in the federal Controlled Substances Act (CSA)42 classifies
marijuana as a Schedule I controlled substance and largely prohibits its
manufacture, distribution, or possession.43 In 2008, Michigan voters
approved the Michigan Medical Marihuana Act (MMMA), which
immunizes certain patients from penalty in any manner for MMMAcompliant medical marijuana use.44 Two years later, the City of
Wyoming amended its zoning ordinance to include the provision:
[U]ses not expressly permitted under this article are prohibited in all
districts. Uses that are contrary to federal law, state law or local
ordinance are prohibited.45
The plaintiff in the subsequent lawsuit, a City of Wyoming resident,
is a qualifying patient under the MMMA and possesses a state-issued
marijuana registry identification card.46 The plaintiff sought a declaratory
judgment from the circuit court that the MMMA preempts the ordinance
and sought a preliminary injunction prohibiting ordinance enforcement.47
The circuit court held that the MMMA is preempted by the CSA.48 The
court of appeals reversed, holding that the ordinance is preempted by the
686 N.W.2d 815 (2006) (billboards); Kyser v. Kasson Twp., 278 Mich. App. 743, 755
N.W.2d 190 (2008), revd, 486 Mich. 514, 786 N.W.2d 543 (2010) (mining).
37. MICH. COMP. LAWS ANN. 125.3101125.3702 (West 2015).
38. Id. 125.3207.
39. 2012 Mich. Pub. Acts 389.
40. MICH. COMP. LAWS ANN. 125.3205.
41. WYOMING, MICH., CODE OF ORDINANCES 90-66 (1997).
42. Controlled Substances Act, 21 U.S.C.A. 801971 (West 2014).
43. Id. 812(c)(c)(10).
44. MICH. COMP. LAWS ANN. 333.26424(a).
45. WYOMING, MICH., CODE OF ORDINANCES 90-66 (1997).
46. Ter Beek v. City of Wyoming, 495 Mich. 1, 6, 846 N.W.2d 531, 534 (2014).
47. Id. at 67, 846 N.W.2d at 534.
48. Id. at 7, 846 N.W.2d at 534.

872

WAYNE LAW REVIEW

[Vol. 60:867

MMMAs grant of immunity from penalties for medical marijuana use.49

The appeals court further held that the state-law immunity for medical
marijuana use is not a barrier to federal regulation of the drug, or federal
enforcement of its use.50
The Michigan Supreme Court affirmed the court of appeals.51 The
supreme court first concluded that the CSA does not preempt the
MMMA. The court argued that the relevant inquiry in a preemption
claim involving the CSA is:
whether there is a positive conflict between the two statutes
such that they cannot consistently stand together. Such a
conflict can arise when it is impossible to comply with both
federal and state requirements, or when state law stands as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.52
The court stated that the MMMA does not prohibit federal
prosecution under the CSA and only provides a limited state-law
immunity from arrest, prosecution, or penalty.53 Such an immunity does
not frustrate the CSAs operation nor refuse its provisions their natural
effect, such that its purpose cannot otherwise be accomplished.54 The
court noted that the plaintiff could certainly be prosecuted under federal
law if federal officials chose to do so.55
The Michigan Supreme Court further agreed with the court of
appeals that the Wyoming ordinance is preempted by the MMMA.56 A
city has the power to enact ordinances to protect the public health, safety,
and welfare, but that ordinance power is precluded if the ordinance is in
direct conflict with the state statutory scheme, or if the state statutory
scheme occup[ies] the field of regulation even when there is no direct
conflict.57 The supreme court concluded that the Wyoming ordinance
directly conflicts with the MMMA by permitting what the MMMA
expressly prohibitsthe imposition of a penalty on a registered
qualifying patient whose marijuana use falls within the MMMAs scope
49. Id. at 7, 846 N.W.2d at 534535.
50. Id.
51. Id. at 25, 846 N.W.2d at 544.
52. Id. at 1112, 846 N.W.2d at 537 (citations omitted).
53. Id. at 1213, 845 N.W.2d at 53738.
54. Id. at 15, 845 N.W.2d at 539.
55. Id. at 17, 846 N.W.2d at 540.
56. Id. at 19, 846 N.W.2d at 541.
57. Id. at 1920, 846 N.W.2d at 541 (citing People v. Llewellyn, 401 Mich. 314, 322,
257 N.W.2d 902, 904 (1977)).

2015]

GOVERNMENT LAW

873

of immunity.58 By enjoining a patient from engaging in MMMAcompliant conduct, the ordinance proscribes such a prohibited penalty
and is preempted by the MMMAs grant of immunity.59
In another case involving whether a local ordinance is preempted by
state law, a local gasoline service station with an attached convenience
store in Bloomfield Township applied to the Michigan Liquor Control
Commission (LCC) for a license to sell beer and wine for off-premises
consumption.60 Under state law, the LLC cannot prohibit an applicant for
such a license from owning fuel pumps as long as the pumps are at least
fifty feet from where the customers purchase alcohol.61 In this case, the
pumps were forty-seven feet from the cash registers, and the township
denied the request for a license.62 During the litigation which followed,
the township amended its zoning ordinance to include the following
standards: (1) alcohol sales must be at least fifty feet from the pumps; (2)
no drive-through operations; (3) minimum floor area and lot size
requirements; (4) the store must have frontage on a major thoroughfare
and not be adjacent to a residentially zoned area; (5) no vehicle service
with customer waiting areas are allowed; and (6) the store must either be
in a shopping center or maintain a certain amount of inventory.63 The
trial court granted the townships motion for summary disposition based
on the amended ordinance.64
The plaintiff-service station owner argued that state law gives the
LCC exclusive control over the sale of alcoholic beverages, and
therefore, the state law preempts the townships zoning regulations.65
The court of appeals disagreed.66 The court reasoned that state law
preempts a local regulation if (1) the local regulation directly conflicts
with a state statute, or (2) the state statute completely occupies the field
of regulation.67 In arguing that state law completely occupies the field of
alcohol regulation, the plaintiff relied on a Michigan Supreme Court
opinion from 1986, which held that a local ordinance that required an
applicant to obtain both a state license and a local license to sell alcohol
at outdoor dancing events was preempted because the court could find no
58. Id. at 20, 846 N.W.2d at 541.
59. Id.
60. Maple BPA, Inc. v. Bloomfield Charter Twp., 302 Mich. App. 505, 508, 838
N.W.2d 915, 918 (2013).
61. MICH. COMP. LAWS ANN. 436.1541(1)(b) (West 2015).
62. Maple BPA, 302 Mich. App. at 509, 838 N.W.2d at 919.
63. BLOOMFIELD TWP., MICH., CODE OF ORDINANCES 42-4.23 (2014).
64. Maple BPA, 302 Mich. App. at 510, 838 N.W.2d at 919.
65. Id. at 511, 838 N.W.2d at 920.
66. Id. at 511, 838 N.W.2d at 919.
67. Id.

874

WAYNE LAW REVIEW

[Vol. 60:867

provision in state law that would allow a municipality to regulate the sale
of alcohol at outdoor dancing events.68
The court of appeals distinguished the Sherman Bowling decision by
reasoning that unlike the ordinance in Sherman Bowling, the Bloomfield
Township ordinance is a zoning ordinance, and LCC regulations
specifically require that all applicants meet zoning ordinance
requirements.69 The court cited a later case that concluded that the
Legislature did not intend to preempt the field of liquor control and that
local units of government have extremely broad powers to regulate
alcohol traffic within their communities as an exercise of their police
power.70
The court of appeals further held that the Bloomfield Township
ordinance did not directly conflict with state law.71 The legal standard
cited by the court of appeals was that a direct conflict exists . . . when
the local regulation permits what the state statute prohibits or prohibits
what the statute permits.72 The court of appeals noted that the state law
is silent on the issues of drive-through windows, minimum building area,
or the number of parking spaces needed.73 To the extent that the
Legislature has expressly spoken on this issue, Bloomfield Townships
zoning ordinance is not more restrictive.74 As such, the amended
ordinance did not conflict with state law.75
A fourth land use case concerns the authority of a municipality to
classify certain lands under a zoning ordinances classification scheme
and the constitutional limitations on that authority. The plaintiff
landowners in Grand/Sakwa of Northfield, LLC v. Northfield Township76
owned 220 acres of farmland zoned AR (Agriculture District).77
Developer and co-plaintiff Grand/Sakwa executed an agreement to
purchase the property for a development of 450 homes and petitioned the
township to rezone the property to a single-family residential
classification (SR-1), which would allow four dwellings per acre.78 The
68. Id. at 512, 838 N.W.2d at 920 (citing Sherman Bowling v. Roosevelt Park, 154
Mich. App. 576, 58485, 397 N.W.2d 839, 843 (1986)).
69. Id. at 512, 838 N.W.2d at 92021.
70. Id. at 513, 838 N.W.2d at 921 (citing Jott, Inc. v. Charter Twp. of Clinton, 224
Mich. App. 513, 544, 569 N.W.2d 841, 854 (1997)).
71. Id. at 514, 838 N.W.2d at 921.
72. Id. at 514, 838 N.W.2d at 921 (citing McNeil v. Charlevoix Cnty., 275 Mich.
App. 686, 697, 741 N.W.2d 27, 34 (2007)).
73. Id. at 514, 838 N.W.2d at 922.
74. Id. at 51415, 838 N.W.2d at 922.
75. Id. at 515, 838 N.W.2d at 922.
76. 304 Mich. App. 137, 851 N.W.2d 574 (2014).
77. Id. at 139, 851 N.W.2d at 577.
78. Id. at 13940, 851 N.W.2d at 577.

2015]

GOVERNMENT LAW

875

township rezoned the property, but township residents organized a

successful referendum that overruled the townships rezoning, leaving
the property zoned AR.79 The zoning board of appeals subsequently
denied plaintiffs requests for use or dimensional variances.80 Plaintiffs
sued, alleging that the application of any zoning classification more
restrictive than SR-1 constituted a regulatory taking.81 A new township
board took office shortly thereafter and rezoned the property as a lowdensity residential district (LR), allowing only one home for every two
acres.82
The preliminary issue facing the trial court in determining whether a
regulatory taking had occurred was which ordinance should be
evaluatedthe AR classification that existed when the lawsuit was filed,
or the LR zoning that was in place at the time of the trial.83 The trial
court ruled that the challenge was to the LR classification that was in
place when it made its decision.84 The court of appeals agreed, stating
that generally, the law to be applied is that which was in effect at the
time of the decision [by the trial court].85 The court of appeals noted
that there are two exceptions to this general rule: an amendment to a
zoning ordinance should not be applied if it would destroy a vested
property interest or if it was enacted in bad faith and with unjustified
delay.86 The court of appeals agreed with the trial court that the first
exception did not apply in this case because there was no vested
property interest at issue. At the time of the sale, the property was zoned
AR . . . .87 The referendum reversed the rezoning to SR-1, so there was
never any property interest that had vested except the right to develop the
property under the AR classification.88
The court of appeals reasoned that the second exception applies if the
newer classification was enacted simply to manufacture a defense.89
The court noted that in order to establish bad faith on the part of the
municipality, the court has to find more than just evidence that the
79. Id. at 140, 851 N.W.2d at 577.
80. Id.
81. Id.
82. Id.
83. Id. at 140, 851 N.W.2d at 57778.
84. Id. at 141, 851 N.W.2d at 57778.
85. Id. at 141, 851 N.W.2d at 578 (alteration in original) (quoting Klyman v. City of
Troy, 40 Mich. App. 273, 27778, 198 N.W.2d 822, 824 (1972)).
86. Id. (quoting Lockwood v. City of Southfield, 93 Mich. App. 206, 211, 286
N.W.2d 87, 89 (1979)).
87. Id. at 14142, 851 N.W.2d at 578.
88. Id. at 142, 851 N.W.2d at 578.
89. Id. (citing Landon Holdings, Inc. v. Grattan Twp., 257 Mich. App. 154, 161, 667
N.W.2d 93, 98 (2003)).

876

WAYNE LAW REVIEW

[Vol. 60:867

change strengthens the municipalitys litigation posture.90 The factual

determination that must control is whether the predominant motivation
for the ordinance change was improvement of the municipalitys
litigation position.91 The trial court concluded, and the court of appeals
agreed, that the rezoning to LR was not done solely to improve
defendants position at trial.92 The township has adopted a master plan
creating the LR classification, which allowed some residential
development while preserving significant areas of agriculture, open
space, and natural features.93 The court of appeals concluded that the
events can fairly be read as demonstrating recognition by both the zoning
board, which had recommended rezoning the property SR-1, and the
township board, which later rezoned the property to LR, that
development was in order, though they disagreed on the degree of that
development.94 The court concluded that because the evidence did not
demonstrate that obtaining a litigation advantage was the predominate
reason for the ordinance change, the trial court did not clearly err by
applying LR zoning as the law of the case.95
The court of appeals then considered whether the rezoning of the
property to LR was a regulatory taking on the basis of the balancing test
in the landmark takings case Penn Central Transportation Co. v. New
York City.96 The Penn Central test requires consideration of three factors
in determining whether a local regulation takes private property rights:
the character of the governments action, the economic effect of the
regulation on the property, and the extent by which the regulation has
interfered with distinct, investment-backed expectations.97 As to the
first factor, the court of appeals quoted one of the conclusions of the
Penn Central Courtthat the government may execute laws or
programs that adversely affect recognized economic values and that a
land use limitation can promote the general welfare even if it destroys or
adversely affects recognized property interests.98 The township land use
plan did not prohibit residential development, the court of appeals noted,

90. Id. at 14344, 851 N.W.2d at 579.

91. Id. at 14344, 851 N.W.2d at 579.
92. Id. at 145, 851 N.W.2d at 580.
93. Id. at 14445, 851 N.W.2d at 57980.
94. Id. at 145, 851 N.W.2d at 580.
95. Id.
96. 438 U.S. 104 (1978).
97. Grand/Sakwa, 304 Mich. App. at 146, 851 N.W.2d at 58081 (citing Penn Cent.,
438 U.S. at 124).
98. Id. at 146, 851 N.W.2d at 581 (citing Penn Cent., 438 U.S. at 12425).

2015]

GOVERNMENT LAW

877

but limited the density in order to promote the general welfare of the
township.99
As to the second Penn Central factor, the trial court concluded that
the plaintiff was not denied all use of those pre-existing [property]
rights.100 The only preexisting rights to development were those that
existed under the AR zoning classification, the classification that was in
place at the time the developer bought the land.101 By changing the
zoning to LR, the township actually expanded those rights.102
The court of appeals noted that, as to the third Penn Central factor
interference with distinct investment-backed expectations, [a] claimant
who purchases land that is subject to zoning limitations with the intent to
seek a modification of those limitations accepts the business risk that the
limitations will remain in place or be only partially modified.103 In this
case, plaintiffs admitted that they knew that the zoning change to SR-1
was going to be challenged by the referendum and that the
reclassification would not take effect at all if the referendum was
successful.104 The court of appeals concluded that since they knew the
referendum effort was underway, they could not argue that their
expenditure of development funds and expectation that the development
would be built while the referendum was pending was reasonable.105
Because all three Penn Central factors weighed in the townships favor,
the court of appeals agreed with the trial court that the rezoning to LR
did not constitute a regulatory taking.106
B. Municipal Finance
As the financial health of a number of Michigan municipalities has
declined due to state funding reductions and slow growth in property tax
revenues, a number of jurisdictions have expanded the use of user fees to
fund certain services.107 This practice has increased after Michigan voters
approved the amendment to the Michigan Constitution, known as the
99. Id. at 147, 851 N.W.2d at 581.
100. Id. at 148, 851 N.W.2d at 582 (alteration in original) (citing Penn Cent., 438 U.S.
at 11517, 137).
101. Id.
102. Id.
103. Id. at 151, 851 N.W.2d at 583.
104. Id. at 152, 851 N.W.2d at 58384.
105. Id. at 152, 851 N.W.2d at 584.
106. Id. at 15253, 851 N.W.2d at 584.
107. SEMCOG, STATE AND LOCAL GOVERNMENT FINANCING OF ESSENTIAL SERVICES
WITH
USER
FEES
(2005),
available
at
http://library.semcog.org/InmagicGenie/DocumentFolder/Financing%20Govt%20Service
s%20with%20Fees.pdf.

878

WAYNE LAW REVIEW

[Vol. 60:867

Headlee Amendment, which prohibits a local unit of government from

levying any new property tax or increasing an existing tax above
authorized rates without voter approval.108 However, a charge that is a
user fee is not affected by the Headlee Amendment.109
Michigan courts have agreed that [t]here is no bright-line test for
distinguishing between a valid user fee and a tax that violates the
Headlee Amendment.110 In most cases, a fee is exchanged for a service
rendered or a benefit conferred, such as a building inspection fee or a
sewer hook-up fee, and there is some reasonable relationship between
the amount of the fee and the value of the service or benefit. A tax, on
the other hand, is designed to raise revenue.111 Michigan courts, for
example, have upheld the imposition of user fees for garbage collection
when the amount of the fee imposed on each property owner is
calculated based upon the type of container used and the amount of
garbage collected.112 Additionally, almost all water and sanitary sewer
systems rely upon revenue from user fees whose variable rates are based
upon the measured water consumption by each individual property
owner.113
Faced with declining revenues following the 2008 recession, the City
of Jackson adopted a Storm Water Utility Ordinance to establish a new
utility to operate and maintain the citys storm water management
program.114 As created by the new ordinance, the Storm Water Utility
assumed the task of maintaining storm water drains, as well as leaf
pickup, mulching, street cleaning, and catch basin maintenance
throughout the citytasks which had previously been accomplished by
the citys Department of Public Works.115 Funding for the utility would
come from an annual storm water system management charge imposed
on each parcel in the city, including undeveloped parcels.116 The specific
amount of the charge would be based on an estimation of the amount of
storm water runoff from each parcel computed by an analysis of the
108. MICH. CONST. art. IX, 31.
109. Jackson Cnty. v. City of Jackson, 302 Mich. 90, 99, 836 N.W.2d 903, 908 (2013)
(quoting Bolt v. City of Lansing, 459 Mich. 152, 158, 587 N.W.2d 264, 268 (1998)).
110. Bolt, 459 Mich. App. at 160, 587 N.W.2d at 268.
111. Id. at 161, 587 N.W.2d at 269 (quoting Cnty. of Saginaw v. John Sexton Corp. of
Mich., 232 Mich. App. 202, 210, 591 N.W.2d 52, 56 (1998)).
112. See Iroquois Props. v. City of East Lansing, 160 Mich. App. 544, 408 N.W.2d
495 (1987).
113. Bolt, 459 Mich. at 159, 587 N.W.2d at 268.
114. JACKSON, MICH., CODE OF ORDINANCES art. VI (2011).
115. Jackson Cnty. v. City of Jackson, 302 Mich. App. 90, 93, 836 N.W.2d 903, 905
(2013).
116. Id. at 95, 836 N.W.2d at 906.

2015]

GOVERNMENT LAW

879

amount of impervious and pervious areas of each parcel.117 All

residential parcels of two acres or less, however, were attributed the
same proportion and were assessed the exact same fee.118
Property owners, as well as the County of Jackson, filed actions
alleging that the Jackson ordinance and the imposition of the storm water
fees violated the Headlee Amendment.119 The court of appeals agreed
and ordered that the city cease collecting the fees.120 The court based its
conclusion upon a comparison of the Jackson scheme to the storm water
fee program created by the City of Lansing that was held
unconstitutional five years earlier.121 The Bolt court concluded that the
Lansing fee system violated the Headlee Amendment after comparing
the characteristics of fees and taxes and by establishing the three primary
criteria of a fee: (1) a fee serves a regulatory purpose, (2) a fee is
proportionate to the necessary costs of the service, and (3) a fee is
voluntary.122
In applying the three Bolt factors to the Jackson ordinance, the court
of appeals concluded that the Jackson scheme failed the Bolt test in a
manner almost identical to the Lansing storm water program struck down
in Bolt.123 The court recognized that the management charge imposed on
all Jackson property owners serves a dual purpose of regulating the
amount of pollutants that flow into adjacent waterways such as the Grand
River as required by state and federal water quality mandates, and a
general revenue-raising purpose by shifting the funding of certain
preexisting government activities from the citys declining general and
street fund revenues to a charge-based method of revenue generation.124
Because these purposes are competing, the question becomes which
purpose outweighs the other.125
The court of appeals concluded that the Jackson ordinance served
only a minimal regulatory purpose and that the management charge is
convincingly outweighed by the revenue-raising purpose.126 The court
noted that the ordinance fails to require either the city or the property
117. Id. at 96, 836 N.W.2d at 907.
118. Id.
119. Id. at 98, 836 N.W.2d at 908.
120. Id. at 112, 836 N.W.2d at 91516.
121. Id. at 99103, 836 N.W.2d at 90811.
122. Id. at 101, 836 N.W.2d at 910 (citing Bolt v. City of Lansing, 459 Mich. 152,
16162, 587 N.W.2d 264, 26970 (1998)).
123. Id. at 106, 836 N.W.2d at 91213.
124. Id. at 105, 836 N.W.2d at 912.
125. Id. at 106, 836 N.W.2d at 912 (citing Bolt, 459 Mich. at 16567, 169, 587
N.W.2d at 27172).
126. Id. at 106, 836 N.W.2d at 912.

880

WAYNE LAW REVIEW

[Vol. 60:867

owner to identify, monitor, and treat contaminated storm and surface

water runoff and allows untreated storm water to be discharged [directly]
into the Grand River.127 Documents submitted by the city further
demonstrated that the impetus for creating the storm water utility and
for imposing the charges was the need to generate new revenue to
alleviate the budgetary pressures associated with the citys declining
general fund and street fund revenues.128
The court further concluded that there was a lack of a
correspondence between the charge imposed on each property owner
and the particularized benefit upon the particular person on whom it is
imposed (rather than the general public).129 The court agreed with the
city that a well-maintained storm water system benefits each property
owner but also noted that the utility system benefits everyone in the city
in roughly equal measure, as well as everyone who operates a motor
vehicle on a Jackson city street and anyone in the Grand River
watershed who relies on the river for clean water.130 Because the benefits
of such a system are not particularized, the court concluded that the
management fee is actually a tax.131
Another local government utilized a different financing mechanism
to augment property tax revenues for funding municipal services. In
2010, voters in Williamstown Township approved a proposal to create a
special assessment district to raise money for police protection.132 1951
Public Act 33 specifically allows townships, incorporated villages, and
certain qualified cities to create a special assessment district to fund
maintenance and operation of police and fire departments.133 The
geographic area of the special assessment district can extend over all of
the lands and premises in the district that are to be especially benefited
by the police and fire protection, according to benefits received . . . to
defray the expenses of police and fire protection.134 In practice, the
district can cover the entire township, and the Williamstown voters chose
to do so.
The trustees in Williamstown Township established a uniform
special assessment fee of $150 on residential property and $250 on

127.
128.
129.
130.
131.
132.
133.
134.

Id. at 106, 836 N.W.2d at 91213.

Id. at 10607, 836 N.W.2d at 913.
Id. at 108, 836 N.W.2d at 913.
Id. at 10809, 836 N.W.2d at 914.
Id. at 109, 836 N.W.2d at 914.
WILLIAMSTOWN TWP., MICH., res. 2010-96 (2010).
MICH. COMP. LAWS ANN. 41.801(4) (West 2015).
Id.

2015]

GOVERNMENT LAW

881

commercial property.135 This special assessment fee appears on its face

to be very similar to the storm water utility fees proposed in Jackson,
both in the dollar amount of the fees and the uniform application in both
municipalities. However, the special assessment fee in Williamstown is
specifically authorized by Public Act 33.136
The plaintiff property owner did not challenge the authority of the
township to levy the special assessment for police services. Rather, the
plaintiff appealed the dollar amount of the special assessment on his
properties to the Michigan Tax Tribunal (MTT), arguing that based upon
the language in the statute, the assessments cannot be uniform, but must
be based upon each propertys taxable value.137 The hearing referee
disagreed, but the full MTT concluded on appeal that the special
assessment in the present case should be calculated based on the taxable
value of Petitioners parcel, as required by the applicable statute.138
The court of appeals disagreed with the MTT and held that the
township could levy a uniform assessment on all applicable properties.139
The court reasoned that the salient portion of this section of the statute
requires the township . . . to spread the assessment levy on the taxable
value of all of the lands . . . according to benefits received . . . .140
Thus, if a township determines that the properties in the district will all
benefit equally, then those properties will need to be assessed equal
amounts as a matter of law.141 The petitioner argued that because the
assessment[] must be levied on the taxable value of all of the lands, any
such assessment[] must be ad valorem and not uniform.142 The court of
appeals disagreed, noting that spreading the assessment levied on
taxable value as required by the statute is not the same as basing the
assessment on taxable value.143 The court further noted that any
assessment that is determined for a particular parcel of land on the basis
of the benefits received must be conveyed as a corresponding millage
rate to be applied to a propertys taxable value.144 If the township
assesses a uniform fee of $150 on each residential property, then each
135. Kane v. Williamstown Twp., 301 Mich. App. 582, 584, 836 N.W.2d 868, 869
(2013).
136. Id.
137. Id. at 584, 836 N.W.2d at 869.
138. Id. at 58485, 836 N.W.2d at 870.
139. Id. at 586, 836 N.W.2d at 870.
140. Id. at 588, 836 N.W.2d at 871 (quoting MICH. COMP. LAWS ANN. 41.801(4)
(West 2015)).
141. Id. at 588, 836 N.W.2d at 87172.
142. Id. at 588, 836 N.W.2d at 872.
143. Id.
144. Id.

882

WAYNE LAW REVIEW

[Vol. 60:867

property should be assessed using whatever individual millage rate will

result in $150 being collected from that property.145
C. Local Ordinance Preemption by State Law
The decision in the Maple BPA case discussed above was based upon
the court of appeals analysis of whether a local zoning ordinance
regulating the sale of alcohol at service stations was preempted by state
law. In another case involving the issue of preemption, the court of
appeals was faced with the question of whether state law preempted a
local general ordinance, not a zoning ordinance.146 The preemption
analysis in the Associated Builders opinion, however, was almost
identical to the analysis in the Maple BPA decision.147
The City of Lansing enacted a prevailing wage ordinance which
requires that in all construction contracts for city projects, all contractors
and subcontractors must provide proof that wages paid to mechanics,
laborers, and truck drivers meet or exceed the current prevailing wage
and fringe benefits for corresponding classes of workers as established
by the U.S. Department of Labor.148 A contractors association
challenged the ordinance as unconstitutional and ultra vires.149 The trial
court agreed, holding that it was bound by a 1923 Michigan Supreme
Court opinion that held that state law preempted the City of Detroit from
enacting a prevailing wage ordinance very similar to the Lansing
ordinance.150
The court of appeals reversed.151 The court held that the decision in
the 1923 Lennane case relied on by the trial court was inapplicable to
the case at bar.152 The court noted that the 1908 state constitution in
effect when the Lennane case was decided provided that the electors of
each city and village shall have the power . . . to pass all laws and
ordinances relating to its municipal concerns, subject to the Constitution
and general laws of this state.153 The Lennane court concluded that
neither the Michigan Constitution nor the then-current version of the
145. Id.
146. Associated Builders & Contractors v. City of Lansing, 305 Mich. App. 395, 853
N.W.2d 433 (2014).
147. See generally Maple BPA, Inc. v. Bloomfield Charter Twp., 302 Mich. App. 505,
838 N.W.2d 915 (2013).
148. Associated Builders, 305 Mich. App. at 39899, 853 N.W.2d at 435.
149. Id.
150. Id. at 399, 853 N.W.2d at 435 (citing Atty Gen. v. City of Detroit, 225 Mich.
631, 196 N.W.2d 391 (1923)).
151. Id. at 398, 853 N.W.2d at 435.
152. Id. at 405, 853 N.W.2d at 439.
153. Id. at 403, 853 N.W.2d at 437 (citing MICH. CONST. art. 8, 21 (1908)).

2015]

GOVERNMENT LAW

883

Home Rule Cities Act gave cities police powers that they could exercise
broadly.154 Instead, the Lennane court held that cities possessed only a
very narrow scope of inherent police powers and only those other powers
that are expressly delegated by the Constitution or legislature of the
state.155 Because neither the Home Rule Cities Act nor the 1908
Constitution gave cities the specific authority to adopt ordinances
governing wages and benefits, the Lennane court concluded that the City
of Detroit had no authority to approve a prevailing wage ordinance.156
The Lennane court also suggested that a city may adopt a public
policy on matters of local and municipal concern, but not matters of
state concern.157 In commenting on this decision, the court of appeals
panel in Associated Builders noted that:
absent from the Courts decision was any discussion as to why
the setting of wage rates was a matter of state concern. Further,
the Court provided little analysis and cited no authority for its
conclusion that the setting of wage rates was a matter of state
concern into which the city could not intrude.158
Almost eighty years later, the court of appeals concluded that the
Lennane holding was inapplicable to the Lansing ordinance because the
reasoning employed in Lennane has subsequently been rejected by
amendments to our Michigan Constitution and by changes in our
caselaw.159 The court of appeals noted that the Michigan Constitution
adopted in 1963 is much more liberal in its interpretation of the
authority granted to cities.160 Specifically, the 1963 Constitution states
that [n]o enumeration of powers granted to cities and villages in this
constitution shall limit or restrict the general grant of authority conferred
by this section.161 Relying on this language and citing numerous cases,
the court of appeals noted that Michigan courts have consistently
recognized the broad grant of authority given to cities162 and that this

154. Id. at 403, 853 N.W.2d at 437.

155. Id. at 403, 853 N.W.2d at 438 (citing Lennane, 225 Mich. at 63940, 196 N.W. at
393).
156. Id. at 404, 853 N.W.2d at 438.
157. Id. at 403, 853 N.W.2d at 438 (citing Lennane, 225 Mich. at 636, 641, 196 N.W.
at 392, 394).
158. Id. at 405, 853 N.W.2d at 43839.
159. Id. at 405, 853 N.W.2d at 439.
160. Id.
161. Id. at 406, 853 N.W.2d at 439 (citing MICH. CONST. art. VII, 22).
162. Id. at 406, 853 N.W.2d at 43940.

884

WAYNE LAW REVIEW

[Vol. 60:867

expanded power includes the authority to enact ordinances pertaining to

wages.163
Michigan has enacted statutes regulating both minimum wages
(MWL)164 and prevailing wages (PWA)165 (including minimum
wages for state construction contracts) in the years since the supreme
court issued the Lennane decision. The court of appeals analyzed
whether these newer statutory enactments preempt the Lansing
ordinance.166 The court of appeals concluded that the Lansing ordinance
does not directly conflict with these two statutes because neither the
MWL nor the PWA prohibits cities from setting prevailing wage rates
for city construction contracts.167 The court also noted that the state
statutes regulatory scheme is not so pervasive as to inhibit a city from
establishing a prevailing wage for contracts for construction involving a
city.168 Applying the same four field preemption factors as applied in
Maple BPA, the court held that: neither the MWL nor the PWA expressly
provide that the statute is the exclusive authority to regulate wages,
preemption cannot be inferred from either statutes legislative history,
the statutes regulatory scheme is not so pervasive as to preclude local
ordinances, and the nature of the subject matter does not demand
exclusive state regulation to achieve the uniformity necessary to achieve
the states purpose.169

163. Id. at 408, 853 N.W.2d at 442.

164. 1964 Mich. Pub. Acts 154, repealed, 2014 Mich. Pub. Acts 138. PA 138 replaced
PA 154 with a new minimum wage law entitled the Workforce Opportunity Wage Act,
codified at MICH. COMP. LAWS ANN. 408.411408.424 (West 2015).
165. 1965 Mich. Pub. Acts 166 (codified at MICH. COMP. LAWS ANN. 408.551
408.558).
166. Associated Builders, 305 Mich. App. at 41314, 853 N.W.2d at 443.
167. Id. at 414, 853 N.W.2d at 444.
168. Id. at 417, 853 N.W.2d at 445.
169. Id. at 41419, 853 N.W.2d at 44446.

I. GOODMAN COHEN LECTURE: TRIAL PRACTICE AS

VIEWED FROM THE PERSPECTIVE OF THE TRIAL JUDGE
JUDGE GERALD E. ROSEN
The remarks below were delivered by Judge Rosen on February 4, 2014
at the 29th annual I. Goodman Cohen Lecture at Wayne State University
Law School. The I. Goodman Cohen Lecture Series was established by
the family of the late I. Goodman Cohen, a prominent trial lawyer who
was active in the Michigan Trial Lawyers Association, known today as
the Michigan Association for Justice.
Thanks very much for that kind and very warm introduction. It is a
pleasure to be here tonight. Its high honor and indeed a privilege to be
asked to be the guest speaker for this great academic tradition here at
Wayne Lawthe annual I. Goodman Cohen trial advocacy lectureand
to join a long and distinguished list of attorneys who have received this
wonderful honor before me. This great distinction also gives me the
opportunity to enhancein a little different waymy association with
this law school that I call my second professional home and have for
most of the past 22 years. I want to begin where [Professor Robert
Sedler] left off by thanking the I. Goodman Cohen familyIna and
Dennis, whom Ive had a chance to get to know todayfor making this
evening and indeed the entire lecture series possible. I didnt know their
father. But I certainly knew of his reputation as not only a very fine trial
lawyer who practiced at the highest levels of our profession, but one who
devoted his professional life to fighting with passion and with dedication
for the rights of those who most needed a voice not only in court but in
our society. And I say to Ina and to Dennis that by making the I.
Goodman Cohen lecture series a possibility here at Wayne Law, you
allow your fathers voice to continue to resonate in our profession. So
thank you very much.
When my friend Professor Bob Sedler asked me to accept this great
honor and to speak here tonight and share some thoughts with you, I
asked him what he thought I should talk about. And he said, Well, at the
luncheon session with the students you should talk about trial advocacy
and how to try cases and common mistakes that young lawyers and
Judge Gerald E. Rosen was nominated by President George H.W. Bush to the
U.S. District Court for the Eastern District of Michigan in November 1989 and was
invested in March 1990. Judge Rosen became chief judge of the court on January 1,
2009. Prior to taking the bench, Judge Rosen was a senior partner in the law firm of
Miller, Canfield, Paddock, and Stone. While at Miller Canfield, Judge Rosen was a trial
lawyer, specializing in commercial, employment, and constitutional litigation.

885

886

WAYNE LAW REVIEW

[Vol. 60:885

maybe even some not so young lawyers make. So thats what I did. And
he said for the evening lecture, Why dont you talk about the state of the
legal profession and being a trial lawyer, what life as a trial lawyer is like
as you see it from the bench. That seemed a pretty tall order to me
because in the Sturm und Drang of life on the trial bench, I usually dont
get to take a step back and reflect upon such big picture thoughts. Im
usually asked to talk about things like evidence and the nuts and bolts of
trial advocacy in the courts. But as I thought about it I thought maybe I
might be able to share some ideas about life in the trenches, the life of a
trial lawyer in this highly competitive, highly stressful, and highly
challenging legal environment because I do talk with lawyers about their
practice, about their careers, and I get to see up close and personal in real
time what its like to be a trial lawyer and how difficult it is. So I thought
I might be able to share some thoughts about that, and I often talk with
students who are on the threshold of a career in law but who perhaps are
struggling a bit with whether or not they have chosen the right career;
maybe they are having some second thoughts. So thats where Id like to
begin this evening, with questions I get from students and lawyers about
what a life in the law is like and what life in the practice of law in the
trial courts is like. Rather than trying to impart sophisticated ruminations
about the great issues of jurisprudence or constitutional philosophy,
maybe the most helpful thing I can do here this evening is to try to
provide some practical advice about how to live your life as a lawyer and
to be the best lawyer you can be. And since Im a trial judge and an
adjunct professor rather than an appellate judge or full-fledged academic,
maybe thats what Im best suited for. And in sharing thoughts about this
tonight, I think Im largely going to try to have a conversation with the
lawyers who are here and with the students who are here and soon to be
lawyers. Im going to try to have a direct kind of conversation with you
folks.
Given the uncertain and challenging economic environment in our
profession, its perhaps not surprising that students often ask me about
the future of law as a career and whether there are too many lawyers in
our society. Students come up to me all the time and say words to the
effect of: Do you think Im on the right path? I hear its really hard to
get a job. Do we have too many lawyers in our society? Although the
challenges are greater now than when I graduated 35 years ago, and the
opportunities may be harder to come by; my answer is really the same as
it has always been. I think there are too many indifferent and
uncommitted lawyers; there are not enough good lawyers who are
dedicated and committed to the profession and passionate about what
they are good at in the way that I. Goodman Cohen was. Every so often

2015]

I. GOODMAN COHEN LECTURE

887

lawyers who have been practicing for a while will stop by my chambers,
and well talk, and they will essentially say that they are feeling burned
out, they are stressed out, and their career is not as rewarding as they had
hoped it was going to be, that they feel like they are just treading water
and going through the motions. Invariably, my reaction is to wonder how
much these lawyers are really putting into it themselves and how much
they are really putting into their work because I do see a lot of lawyers
who are going through the motions, taking short cuts, or in sports jargon,
just mailing it in. It is said that the law is a jealous mistress, and that
certainly is true, but the full quotation from U.S. Supreme Court Justice
Joseph Story is even more true. Heres the full quotation: The law is a
jealous mistress, and requires long and constant courtship. It is not to be
won by trifling favors, but by lavish homage. No matter what your
practice is there will be times in your legal career when you will be
challenged to work beyond what you believe are your limits; when you
will be tempted to take shortcuts and to put forth less than your best
effort. No doubt, many of you here tonight have experienced this during
your years of practice, and even for our students, maybe you have
experienced this during your time in law school. You know that its hard
to push through those challenging breaking points that you reach, and I
suppose there are some successful lawyers who maybe make it look easy,
make it look like they are not breaking a sweat, but my experience is
different. My experience is that behind every successful trial lawyer,
every accomplished lawyer, is a trail of blood, toil, tears, and sweat.
Putting it simply, there are no shortcuts to becoming a good lawyer. My
father was a guy who was enamored of maxims and adages and homilies
that reflected his approach to life and which he liked to impart to his
three boys. I remember one in particular from my earliest years because
he repeated it with a frequency that seemed like a phonograph needle
stuck in the groove. It was, Once a task is once begun never leave it till
its done. Be of labor great or small do it well or not at all. My dad
passed away a few years ago, but I can still hear his voice echoing and
resonating, and I confess I have internalized it. My wife Lori who is here
tonight says that Im compulsive; I plead guilty to that. But my response
is: show me a successful person who is not at least a little bit compulsive
about what they are doing. If you begin to take shortcuts, if you begin to
mail it in, in the short run you may only be cheating your clients or
your colleagues or maybe a judge. But over the long term the only one
you are really short-changing is yourself because in the end your career
in the law will only be as successful and rewarding as what you put into
it. The degree of professional satisfaction and reward that you will

888

WAYNE LAW REVIEW

[Vol. 60:885

experience as a lawyer will be the equal measure of your own dedication

and commitment as well as the effort that you devote to your work.
I truly believe that the law is still the greatest profession, the highest
calling to which one can aspire. This is because lawyers have the ability
to help not only individual human beings and institutions at their most
critical and sometimes most vulnerable junctures, but also to impact and
to contribute to society on a broad scale. Its a license granted to almost
no other profession. Unlike other professions, lawyers have the
opportunity to be exposed to and to learn about so many different aspects
of life and the human condition and to participate in them. The
intellectual challenges and opportunities are simply unbounded. For
those with a curious mind, there is simply no other discipline that offers
the breadth and the scope of intellectual engagement as the law does. The
law truly offers an intellectual feast; a cafeteria of choices and
opportunities that you will have as a lawyer to explore and to learn and to
grow as a human being. These opportunities are limitless and endlessly
engaging, and you should seize every opportunity that the law offers with
both hands. Find a practice that really grabs you, one that ignites a
passion and maybe ignites your imagination, and then run with it. I say
this because in the end thats what a career in the law is all about:
realizing your own potential to be the very best lawyer that you can be.
No matter what the focus of your practice is, become engaged and give it
your best shot. As with everything in life over the course of your career,
youre going to win some that you probably shouldnt win, and youre
going to lose some that you probably shouldnt lose. But the most
important things are to not get dragged down or discouraged by the
vicissitudes and the vagaries of your day-to-day practice and to stay
focused on a commitment to practice law at the highest possible level of
the profession that you can possibly achieve. Win or lose, you should
always strive to be able to say at the end: I gave it my best shot; I didnt
leave anything out on the field. If you can do that, when it comes time
to hang up your spikes and reflect back on your life in the law, youll be
able to do it without looking back with remorse and regret.
There is another aspect of being the best lawyer that you can be and
not cutting corners, and that is: try to do it the right way. Just as there
will be times when you are tempted to take shortcuts and half-measures
in doing your work, so will there be times when you will be tempted to
take ethical shortcuts or to rationalize or circumvent your way around the
rules of professional conduct. Whether these temptations arise because of
concerns about money or time constraints or maybe just avoiding
personal embarrassment by trying to cover up a mistake, every lawyer at
some time in his or her career will find themselves at an ethical

2015]

I. GOODMAN COHEN LECTURE

889

crossroad, every lawyer. The history of our legal profession

unfortunately is littered with bright, talented lawyersincluding those
who had achieved high public officewho lost their ethical moorings
and have paid a terrible price for their trespasses. Now I certainly dont
mean to understate the difficulties of not yielding to temptation, but as is
the case with your work ethic, so is the case with your professional
ethics. Its been said that integrity is what you do when no one is
looking, so I thought I would illustrate this with a short story. Even
though its not directly about the practice of law, its subject was a
lawyer. I took up golf a few years ago after a lifetime of avoiding and
demeaning it; Lori says that I took it up because I dont have enough
frustration in my life. I hear a few chuckles from the golfers out there.
And Ive learned what every golfer learns: although the game looks like
it should be easy to play, its very difficult, its endlessly frustrating, and
its an all-around humbling endeavor. But more than that, golf has a
rigorous code of conduct that more than any other sport requires selfregulation and brutal self-imposed honesty. This brief story illustrates
this as best I can hope for my larger point. Many people recognize Bobby
Jones as the greatest golfer of all time, but what many might not recall is
that he was also a very fine lawyer after his golfing career ended. In the
1925 U.S. Open, Bobby Jones was playing with Walter Hagen, which
also has a Detroit connectionI dont know if anyone knows thisbut
he was the head pro at Oakland Hills for a year. Anyway, Bobby Jones
was playing with Walter Hagen, who was not only another all-time great,
but a fierce rival of Bobby Jones. Jones was leading Hagen by a stroke,
and on the 11th fairway, Jones believed that he had inadvertently caused
the ball to move as he was setting up for a shot, so he called a one stroke
penalty to himself. Hagen and an official, both of whom were watching
him, said that they didnt think he had moved the ball, and they tried to
talk him out of the penalty. Hagen told Jones that he didnt want to win
that way. The official asked Jones, Bobby, do you really think you
moved the ball? Jones responded I know that I did, and he imposed
the one stroke penalty on himself. He then went on to lose the 1925 U.S.
Open by one stroke. Afterward, when he was asked about the universal
praise and acclaim that he was receiving for this act of integrity and how
he got a lot more attention than the winner of the U.S. Open, which
everyone has forgotten about now, Bobby Jones said that he believed he
deserved no credit at all for this. He said, They might as well praise me
for not robbing a bank. Although Bobby Jones lost the U.S. Open in
1925 by one stroke, he won for all time his reputation for unshakeable
integrity, which needless to say stood him in great stead throughout his
long and very successful career in the law. The moral of this golf story is

890

WAYNE LAW REVIEW

[Vol. 60:885

obvious. Even if no one is looking, and even if you believe the breaches
might be small once you begin down that path of taking a breezy
approach to your professional responsibilities, you will inevitably and
ineluctably find yourself sliding down the proverbial slippery slope to the
point where not only can you not get back up, but you wont be able to
recognize where the high ground is. Weve seen it happen all too often in
our society. But one thing of which you can be sure: your fellow
practitioners, your colleagues, and judges, they will recognize that you
struggle to find your ethical bearings, and they will not only remember
that, but that will become your reputation in the profession. And like
indelible ink, this will be a stain not easily removed. Not all of us have a
Bobby Jones moment. But your reputation and your profession is your
calling card. Guard it diligently and do not permit it to become an alarm
bell for other lawyers and judges.
Id like to end where I began before we get to question time. Having
talked about the importance of a strong work ethic and professional
integrity, I must say that in some senses I feel like Im preaching to the
converted here at Wayne Law because so many in our Wayne Law
family have already demonstrated their mettle in these two important
areas. I believe that Waynes graduates are well prepared to meet the
challenges of todays legal world, and Im really very proud of my long
association with this great institution and the faculty and now with the
great tradition of the I. Goodman Cohen lecture series. This is a great
school. Those of you who are graduating or about to finish your studies
here, youll have endless opportunities. And to be a Wayne Law graduate
will open many doors for you. Just remember as you walk through those
doors that you stand on the shoulders of others who have gone before
you and established the great reputation of this school. So always give it
your best shot, whether its 12:00 at night and youve still got a stack of
documents to go throughor I guess a computer screen full of
documentsalways give it your best shot and do it the right way.
Thank you all.

THE ISSUE OF STANDING IN UNITED STATES V. WINDSOR: A

CONSTITUTIONAL ERROR THAT IMPACTED THE
INTEGRITY OF THE JUDICIAL PROCESS
NATHAN INKS
I. INTRODUCTION .................................................................................. 891
II. BACKGROUND .................................................................................. 892
A. Case or Controversy Clause ...................................................... 892
B. Prudential Limitations on Jurisdiction ...................................... 893
C. Immigration and Naturalization Service v. Chadha................... 894
D. United States v. Windsor........................................................... 896
1. The Majoritys Opinion ....................................................... 896
2. Justice Scalias Dissent ....................................................... 901
3. Justice Alitos Dissent.......................................................... 903
III. ANALYSIS ........................................................................................ 905
A. The United States Was Not an Aggrieved Party Under the
Case or Controversy Clause .................................................... 905
B. Prudential Limitations on Jurisdiction Also Should Have
Barred the Court from Hearing the Case ................................ 908
C. BLAG Would Not Have Had Standing Even if the Court Had
Granted Its Appeal................................................................... 910
D. Why Does the Jurisdiction Issue Matter?.................................. 912
1. The Constitutional Issue ...................................................... 912
2. The Prudential Issue ............................................................ 913
IV. CONCLUSION ................................................................................... 914
[E]very constitutional error may be said to raise questions as to the
appearance of justice and the integrity of the judicial process.
Justice Thurgood Marshall1
I. INTRODUCTION
In 2013 the Supreme Court struck down section 3 of the Defense of
Marriage Act (DOMA),2 which defined marriage as legal only between
B.S., Central Michigan University; J.D. expected 2015, Wayne State University.
I wish to acknowledge the assistance provided by Professor Jonathan Weinberg as
my advisor for this Note.
1. Vasquez v. Hillery, 474 U.S. 254, 27071 (1986).

891

892

WAYNE LAW REVIEW

[Vol. 60:891

one man and one woman.3 The case, United States v. Windsor, was
embroiled in heated political debate between supporters and opponents
of same-sex marriage,4 but beneath all of the politics was an interesting
legal issuedid the Court actually have the authority to hear the case?5
Compared to the due process issue of the case, the jurisdiction issue may
seem unimportant, but such a thought could not be further from the truth.
The issue of whether the Supreme Court had jurisdiction to hear the
case not only has major separation of powers implications,6 but also calls
into question whether the Court should eagerly step into heated political
issues, as it did here.7 This Note will explore these considerations and
argue that in finding that it had authority to hear United States v.
Windsor, the Supreme Court overstepped both its Article III
constitutional authority8 and the prudential jurisdiction limits that the
Court has voluntarily placed on itself.9
II. BACKGROUND
A. Case or Controversy Clause
At the heart of this issue is the Case or Controversy Clause of the
United States Constitution. The relevant portion of this clause states,
The judicial Power shall extend to all Cases, in Law and Equity, arising
under this Constitution, the Laws of the United States . . . to
Controversies to which the United States shall be a Party . . . .10 At the
district court level, the case or controversy requirement is met if the
issue(s) presented to the court are done so in an adversary context and
can be resolved by the judicial system.11 If this requirement is not met,
2. Defense of Marriage Act, 1 U.S.C.A. 7 (West 2014).
3. United States v. Windsor, 133 S. Ct. 2675, 2683 (2013) (quoting 1 U.S.C.A. 7).
4. See Live Analysis of the Supreme Court Decisions on Gay Marriage, N. Y. TIMES,
http://projects.nytimes.com/live-dashboard/2013-06-26-supreme-court-gay-marriage (last
updated June 26, 2013, 4:36 PM).
5. Windsor, 133 S. Ct. at 2684 (It is appropriate to begin by addressing whether
either the Government or BLAG, or both of them, were entitled to appeal to the Court of
Appeals and later to seek certiorari and appear as parties here.). This Note purposefully
makes no statement regarding support or opposition against same-sex marriage; such
statements tend to bias readers and have a clouding effect on the legal arguments
discussed.
6. See infra Part III.D.1.
7. See infra Part III.D.2.
8. See infra Part III.B.1.
9. See infra Part III.B.2.
10. U.S. CONST. art. III, 2, cl. 1.
11. Flast v. Cohen, 392 U.S. 83, 95 (1968).

2015]

STANDING IN UNITED STATES V. WINDSOR

893

the court cannot hear the case.12 The case or controversy requirement
applies during the entire life of the case, including on appeal.13
In Camreta v. Greene, the Supreme Court laid out what is necessary
for an appeal to meet the requirements of the Case or Controversy
Clause.14 First, litigants must have a personal stake in the suit;15 in
order to have such a stake in the litigation, [t]he petitioner must show
that he has suffered an injury in fact that is caused by the conduct
complained of and that will be redressed by a favorable decision.16
The respondent must also have an ongoing interest in the case in order
to meet the requirements of Article III.17
The Court noted in Camreta that even though the petitioner had won
in courts below, he still showed injury, causation, and redressability,
and the injury could only be remedied by overturning the ruling on
appeal[.]18 While the petitioner had prevailed on procedural grounds of
qualified immunity, he would still have to change how he performed his
job in order to avoid future liability, meaning that he was effectively still
injured, and only a ruling in his favor, on the merits, could remedy that
injury.19 Because there was still adverseness between the parties,20 and
the petitioner had an injury that could only be remedied by a further
appeal, the Court held that Article III did not bar it from adjudicating the
case.21
B. Prudential Limitations on Jurisdiction
In addition to the Case or Controversy Clause, the Supreme Court
has established prudential limitations on jurisdiction. In Deposit
Guaranty National Bank, Jackson, Mississippi v. Roper, the Supreme
Court noted that typically, only a party aggrieved by a judgment or
order of a district court may exercise the statutory right to appeal[.]22
While the United States Supreme Court has not laid out an explicit test
for what makes one an aggrieved party, the Connecticut Supreme
Court applies a two-prong test: (1) does the allegedly aggrieved party
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.

Baker v. Carr, 369 U.S. 186, 19899 (1962).

See Lewis v. Contl. Bank Corp., 494 U.S. 472 (1990).
Camreta v. Greene, 131 S. Ct. 2020, 202830 (2011).
Id. at 2028.
Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 56061 (1992)).
Id.
Id. at 2029.
Id.
Id. at 2028 (quoting Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)).
Id. at 2029.
Deposit Guar. Natl. Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 333 (1980).

894

WAYNE LAW REVIEW

[Vol. 60:891

have a specific, personal and legal interest in the subject matter of a

decision; and (2) has this interest been specially and injuriously affected
by the decision?23 Corpus Juris Secundum adopted the first prong of the
Connecticut test in its definition of aggrieved.24
C. Immigration and Naturalization Service v. Chadha
The leading case for analyzing the standing issue in Windsor is INS
v. Chadha.25 In that case the Supreme Court dealt with the issue of
whether the National Immigration and Nationality Acts26 provision for a
one-House congressional veto was unconstitutional;27 however, before
the Court could address the substantive issue of the case, it first had to
decide whether it had proper authority over the case.28
To understand the standing issue in Chadha, some brief background
information on the case is necessary. Jagdish Rai Chadha was an
immigrant whose visa had expired, and he had submitted an application
for suspension of his deportation.29 The National Immigration and
Nationality Act contained a provision that allowed the Attorney General
to suspend deportation under certain circumstances.30 If he decided to
suspend deportation, the Attorney General had to submit a report to
Congress, and either the Senate or the House could pass a resolution
disapproving of the suspension, forcing the Attorney General to deport
the immigrant.31 The House of Representatives passed such a resolution
pertaining to Chadha, and he appealed the order for deportation to the
Board of Immigration Appeals, arguing that the one-House veto was
unconstitutional.32 The Board of Immigration Appeals dismissed the
appeal, so Chadha appealed to the Ninth Circuit Court of Appeals,33
23. Gladysz v. Planning and Zoning Commn of Plainville, 773 A.2d 300, 305 (Conn.
2001).
24. 4 C.J.S. Appeal and Error 251 (2015).
25. Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919 (1983).
26. Immigration and Nationality Act of 1965, Pub. L. No. 89-236, 79 Stat. 911
(codified as amended in 8 U.S.C.A. 1101, 11511157, 11811182, 1201, 12541255,
1259, 1322, 1351 (West 2014)).
27. Chadha, 462 U.S. at 923, 929.
28. Id.
29. Id. at 92324.
30. Id.
31. Id. at 92425.
32. Id. at 92628.
33. Pursuant to section 106(a) of the Immigration and Nationality Act of 1952, an
order for deportation had to be appealed to the court of appeals, not the district court;
thus, there was no district court ruling between the Board of Immigration Appeals
decision and the Ninth Circuits decision. See id. at 937.

2015]

STANDING IN UNITED STATES V. WINDSOR

895

where the Immigration and Naturalization Service (INS) agreed with

Chadhas position on the unconstitutionality of the provision.34 The
Ninth Circuit allowed both the House of Representatives and Senate to
intervene in the case.35 The court of appeals held that the one-House veto
was unconstitutional and ordered the Attorney General to stop the
deportation process.36
When the INS appealed the case to the Supreme Court, both
congressional parties filed motions to dismiss the case based on a variety
of reasons.37 The congressional parties argued that the Supreme Court
did not have jurisdiction under 28 U.S.C. 1252 to rule on the appeal,
arguing that under Deposit Guaranty, [a] party who receives all that he
has sought generally is not aggrieved by the judgment affording the relief
and cannot appeal from it.38 Because the INS was asking the Court to
invalidate the one-House veto provision, and the Ninth Circuit had
already done that, the INS had already received what it sought from the
Court of Appeals, [was] not an aggrieved party, and therefore [could not]
appeal from the decision of the Court of Appeals.39 The Court rejected
the argument, holding that because the INS was still enforcing the
statute, it was sufficiently aggrieved by the Ninth Circuits ruling, as it
would stop the INS from following the course of action that it would
have taken devoid of the ruling; thus the INS fell under the term any
party as used in 28 U.S.C. 1252.40 The Court went on to give a broad
holding that could apply to future cases:
When an agency of the United States is a party to a case in which
the Act of Congress it administers is held unconstitutional, it is
an aggrieved party for purposes of taking an appeal under
1252. The agencys status as an aggrieved party under 1252
is not altered by the fact that the Executive may agree with the
holding that the statute in question is unconstitutional.41
34. Id. at 928.
35. Id. at 930 n.5.
36. Id. at 928.
37. Id. at 92930. The reasons were that the Court lacked appellate jurisdiction, the
one-House veto was not severable from the overall statute, Chadha lacked standing,
Chadha had an alternative relief provided to him statutorily, the court of appeals lacked
jurisdiction, there was no case or controversy, and the question was a nonjusticiable
political question. Id. at 92944.
38. Id. at 92930 (quoting Deposit Guar. Natl. Bank, Jackson, Miss. v. Roper, 445
U.S. 326, 333 (1980)).
39. Id. at 930.
40. Id.
41. Id. at 931.

896

WAYNE LAW REVIEW

[Vol. 60:891

The congressional parties also argued that there was no genuine

controversy,42 but merely a friendly, non-adversary, proceeding.43
The congressional parties argued that because Chadha and the INS fell
on the same side of the constitutionality issue, there was not a genuine
controversy for the courts to solve.44 The Court rejected this argument as
well, noting that there was concrete adverseness from the point at
which the congressional houses intervened.45 The Court went on to say
that there had been adequate Art. III adverseness even before
Congresss intervention, because the fact that the INS agreed with the
Ninth Circuits ruling did not eradicate its status as an aggrieved party.46
Regardless of the INSs legal arguments presented to the Court, the
agency would have deported Chadha had the Ninth Circuit not ruled as it
did, and the Supreme Court held that this was sufficient to establish a
genuine controversy.47
The Court concluded the issue of its authority to decide the case by
holding that the issues of standing and justiciability did not preclude it
from ruling on the substantive issue of the appeal.48 It closed the section
on this issue with a quote from an opinion by Chief Justice John
Marshall: Questions may occur which we would gladly avoid; but we
cannot avoid them. All we can do is, to exercise our best judgment, and
conscientiously to perform our duty.49 This quote makes for an ironic
segue into the Windsor case, where the Court was as bifurcated as
possible regarding whether it wanted to avoid the question or tackle it
head on.
D. United States v. Windsor
1. The Majoritys Opinion
The substantive issue behind the Windsor case was whether section 3
of DOMA was unconstitutional.50 DOMA, among other things,
established a definition of marriage for federal agency purposes as

42. Id. at 939.

43. Id. (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346 (1936)
(Brandeis, J., concurring)).
44. Id.
45. Id.
46. Id.
47. Id. at 93940.
48. Id. at 943.
49. Id. at 944 (quoting Cohens v. Va., 19 U.S. (6 Wheat.) 264, 404 (1821)).
50. United States v. Windsor, 133 S. Ct. 2675, 2683 (2013).

2015]

STANDING IN UNITED STATES V. WINDSOR

897

exclusively between one man and one woman.51 Respondent Edith

Windsor and her same-sex partner were married in Canada, and the State
of New York recognized their marriage as valid.52 When Windsors
partner died, she left her entire estate to Windsor, but because section 3
of DOMA did not recognize same-sex marriages, she did not fall under
the marital exception to the federal estate tax.53 She paid the taxes and
sought a refund; however, the Internal Revenue Service (IRS) denied her
refund due to DOMAs prohibition on allowing the IRS to declare
Windsor to be a surviving spouse.54 Windsor responded by filing a
refund suit in the United States District Court for the Southern District of
New York, arguing that DOMA violated the Fifth Amendments equal
protection guaranty.55
While the suit was pending,56 Attorney General Eric Holder
informed Speaker of the House John Boehner that President Barack
51. 1 U.S.C.A. 7 (West 2014) (In determining the meaning of any Act of
Congress, or of any ruling, regulation, or interpretation of the various administrative
bureaus and agencies of the United States, the word marriage means only a legal union
between one man and one woman as husband and wife, and the word spouse refers only
to a person of the opposite sex who is a husband or a wife.).
52. Windsor, 133 S. Ct. at 2683.
53. Id. The exception excludes any interest in property which passes or has passed
from the decedent to his surviving spouse from taxation. 26 U.S.C.A 2056(a) (West
2014).
54. Windsor, 133 S. Ct. at 2683.
55. Id. While the Fifth Amendment has no express language regarding equal
protection, the Court has held that it imposes on the federal government some of the
restrictions that the Fourteenth Amendments Equal Protection Clause imposes on states.
See Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (The Fifth Amendment, which is
applicable in the District of Columbia, does not contain an equal protection clause as
does the Fourteenth Amendment which applies only to the states. But the concepts of
equal protection and due process, both stemming from our American ideal of fairness, are
not mutually exclusive. The equal protection of the laws is a more explicit safeguard of
prohibited unfairness than due process of law, and, therefore, we do not imply that the
two are always interchangeable phrases. But, as this Court has recognized, discrimination
may be so unjustifiable as to be violative of due process.); see also Picard v. Connor,
404 U.S. 270, 279 n.2 (1971) (The overlap is, of course, not total. But the extent to
which the two concepts merge has been a subject of debate since Representative John A.
Bingham of Ohio, an architect of the Fourteenth Amendment, used the phrases due
process and equal protection interchangeably on the floor of Congress. (citations
omitted)); Griswold v. Connecticut, 381 U.S. 479, 486 n.1 (1965) (Goldberg, J.,
concurring) ([T]his Court, for example, in Bolling v. Sharpe, . . . while recognizing that
the Fifth Amendment does not contain the explicit safeguard of an equal protection
clause, nevertheless derived an equal protection principle from that Amendments Due
Process Clause. (citation omitted)); U.S. Dept of Agric. v. Moreno, 413 U.S. 528, 540
(1973) (discussing the conception of equal protection that is implicit in the Due Process
Clause of the Fifth Amendment).
56. Windsor, 133 S. Ct. at 2683.

898

WAYNE LAW REVIEW

[Vol. 60:891

Obama had directed him to no longer defend legal challenges against

section 3 of DOMA, because the President and Attorney General deemed
it unconstitutional; however, the executive branch would continue to
enforce it.57 The Bipartisan Legal Advisory Group (BLAG) of the House
of Representatives responded by voting to intervene in the case to defend
DOMA; however, the district court denied the motion to enter as of right,
because the United States was already represented by the Department of
Justice.58 The district court did, however, allow BLAG to intervene as an
interested party.59
The district court ruled in favor of Windsor, declaring section 3 of
DOMA unconstitutional.60 The Court of Appeals for the Second Circuit
affirmed the judgment, and all three parties filed petitions for certiorari;
the Supreme Court granted the United States petition (filed through the
Solicitor General) and denied the others.61 The Court also appointed
Professor Vicki Jackson as amicus curiae to argue that the Court lacked
jurisdiction to hear the case.62 As of the time the Court gave its ruling,
the United States had not yet complied with the Second Circuits
judgment, as the executive branch was still fully enforcing DOMA.63
Similar to Chadha, before the Court in Windsor could address the
substantive issues, it had to determine whether BLAG or the Government
(or both) legitimately appealed the case to the court of appeals.64 The
Court easily found that Windsor had standing to file the suit in the first
place, because she was clearly injured by having to pay taxes that she
allegedly should not have been forced to pay.65 The Court then said that
the executive branchs nondefense of the statute had no effect on the
57. Press Release, Letter from the Attorney General to Congress on Litigation
Involving the Defense of Marriage Act (Feb. 23, 2011), available at
http://www.justice.gov/opa/pr/letter-attorney-general-congress-litigation-involvingdefense-marriage-act.
58. Windsor, 133 S. Ct. at 2684.
59. Id.
60. Id.
61. Id.
62. Id. The Court appointed Jackson because neither Windsor nor the Government
was arguing that the Court lacked jurisdiction to hear the case. Linda Greenhouse,
Standing and Delivering, N.Y. TIMES (Dec. 12, 2012, 9:00 PM),
http://opinionator.blogs.nytimes.com/2012/12/12/standing-and-delivering/. While BLAG
had committed to arguing that the Court lacked jurisdiction, at the time that the Court
granted the petition for certiorari, the issue of whether BLAG had standing to intervene
had not been determined. Nicholas P. Fandos, Law School Professor to File Brief on
DOMA
Case,
HARV.
CRIMSON
(Dec.
13,
2012),
http://www.thecrimson.com/article/2012/12/13/jackson-doma-brief-court/.
63. Windsor, 133 S. Ct. at 2684.
64. Id. at 268485.
65. Id.

2015]

STANDING IN UNITED STATES V. WINDSOR

899

standing issue at the district court level, because there was still a
justiciable controversy between the parties; up through this point, all of
the parties agreed.66
However, the parties and Jackson diverged from their consensus on
the standing issue when the Supreme Court reached the issue as
applicable to the court of appeals.67 Jackson argued that once the
President and Department of Justice agreed with Windsor from a legal
standpoint, there was no longer any adversity, and the United States was
a prevailing party below; thus the court of appeals should have
dismissed the appeal, and the Supreme Court should have denied
certiorari.68
The Court disagreed with Jackson, noting a distinction between the
principles of the jurisdictional requirements of Article III and the
prudential limits on its exercise, characterizing the latter as essentially
matters of judicial self-governance.69 The Court stressed that the two
must be distinguished; Article III applies the Case or Controversy
Clause, while prudential standing is merely judicially self-imposed
limits on the exercise of federal jurisdiction.70 According to the Court,
Article III jurisdiction was satisfied because the United States had been
ordered to pay Windsor, resulting in a real and immediate economic
injury.71 The Court noted that it did not matter if the executive branch
would be happy with the ruling; as long as the government was paying
money to Windsor, the United States was an injured party.72
The Court went on to analyze Chadhalikening Windsor to itand
addressed the issue of Article III jurisdiction.73 The Court concluded its
analysis of Chadha by saying:
The necessity of a case or controversy to satisfy Article III was
defined as a requirement that the Courts decision will have real
meaning . . . . This conclusion was not dictum. It was a
necessary predicate to the Courts holding that prior to
Congress intervention, there was adequate Art. III adverseness.
The holdings of cases are instructive, and the words of Chadha
make clear its holding that the refusal of the Executive to
66. Id. at 2685.
67. Id.
68. Id.
69. Id. (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).
70. Id. (citations omitted) (internal quotation marks omitted).
71. Id. at 2686 (quoting Hein v. Freedom From Religion Found., Inc., 551 U.S. 587,
599 (2007)).
72. Id.
73. Id.

900

WAYNE LAW REVIEW

[Vol. 60:891

provide the relief sought suffices to preserve a justiciable dispute

as required by Article III. In short, even where the Government
largely agree[s] with the opposing party on the merits of the
controversy, there is sufficient adverseness and an adequate
basis for jurisdiction in the fact that the Government intended to
enforce the challenged law against that party.74
The Court then went on to discuss the issue of the Courts own
prudential limits on its power.75 It noted the rule established in Deposit
Guaranty but said that it is not based on Article III limitations; where
appropriate, such an appeal may be permitted . . . at the behest of the
party who has prevailed on the merits, so long as that party retains a
stake in the appeal satisfying the requirements of Art. III.76 Such
prudential limits are different from Article III requirements because
prudential limits can be outweighed by various factors, such as the
presence of amici curiae to ensure adequate adversity and parties who
will defend with vigor the constitutionality of the legislative act.77
Here, the presence of BLAG soothed these prudential concerns by
ensuring a sharp adversarial presentation[.]78 If it were to dismiss the
case, the Court contended, the result would be litigation across the
country, and thousands would be adversely affected.79 The Court further
held that because the prudential concerns were satisfied, it did not need
to decide whether BLAG had standing to challenge the ruling.80
The Court concluded by cautioning that turning executive nondefense-with-enforcement into a regular pattern would result in
difficulties in the future.81 The Court pointed out that it may not be
appropriate for the executive branch to enter into a suit with a party that
it does not disagree with on the legal matters instead of just paying the
party.82 The Court noted that if such a move were to preclude the Court
from hearing such claims, this would shift the separation of powers, and
the President would have more power regarding the unconstitutionality
of laws than the Court.83 Furthermore, it would not be appropriate for the
74. Id. at 268687 (citations omitted).
75. Id.
76. Id. at 2687 (quoting Deposit Guar. Natl. Bank, Jackson, Miss. v. Roper, 445 U.S.
326, 33334 (1980)).
77. Id.
78. Id. at 268788.
79. Id. at 2688.
80. Id.
81. Id.
82. Id.
83. Id.

2015]

STANDING IN UNITED STATES V. WINDSOR

901

executive branch to begin challenging laws passed by Congress in the

courts instead of pushing for a revision to the law.84 The integrity of the
political process would be at risk if difficult constitutional issues were
simply referred to the Court as a routine exercise. But this case is not
routine.85 The Court noted that BLAGs defense of DOMA further
guaranteed that the prudential concerns were satisfied.86 Thus, the Court
held that it could rule on the merits of the case.87
2. Justice Scalias Dissent
Overall, Justice Scalia had the most substantial dissent in Windsor;
for the most part, the other justices who agreed with him did not address
his reasoning and merely pointed out that they concurred in his rationale
and conclusion on the issue.88 Justice Scalia began with an impassioned
characterization of the majoritys holding as a grave overstep of judicial
boundaries:
The Court is eagerhungryto tell everyone its view of the
legal question at the heart of this case. Standing in the way is an
obstacle, a technicality of little interest to anyone but the people
of We the People, who created it as a barrier against judges
intrusion into their lives. They gave judges, in Article III, only
the judicial Power, a power to decide not abstract questions
but real, concrete Cases and Controversies. Yet the plaintiff
and the Government agree entirely on what should happen in this
lawsuit. They agree that the court below got it right; and they
agreed in the court below that the court below that one got it
right as well. What, then, are we doing here?89
In Justice Scalias view, the majoritys holding will tip the balance of
power, making the judiciary more powerful than the executive and
legislative branches.90 He argued that the power of the judiciary in
84. Id.
85. Id. at 2689.
86. Id.
87. Id.
88. Id. at 2696, 2711 (Roberts, C.J., dissenting; Alito, J., dissenting).
89. Id. at 2698 (Scalia, J., dissenting).
90. Id. (The answer lies at the heart of the jurisdictional portion of todays opinion,
where a single sentence lays bare the majoritys vision of our role. The Court says that
we have the power to decide this case because if we did not, then our primary role in
determining the constitutionality of a law (at least one that has inflicted real injury on a
plaintiff) would become only secondary to the Presidents. But wait, the reader
wondersWindsor won below, and so cured her injury, and the President was glad to see

902

WAYNE LAW REVIEW

[Vol. 60:891

America is to adjudicate, with conclusive effect, disputed government

claims . . . against private persons, and disputed claims by private
persons against the government or other private persons.91 Sometimes
parties agree on the facts but disagree on the law, and this, Scalia argued,
is why the Court looks at the constitutionality of laws; it is not a
separate, free-standing role[,] but merely a role that is incidental to the
task that the Court has been given.92
Justice Scalia argued that the Courts authority is only to adjudge
the rights of an injured party who stands before us seeking redress and
that such a party was missing in the Windsor case.93 Windsors injury
was remedied, and while the United States may still be injured by having
to pay Windsor, Justice Scalia pointed out that the injury would not be
lessened if the Court ruled in the way that the United States had asked it
to; because both parties agreed with the district courts judgment, the
case should have ended there.94
Justice Scalia then went on to discuss the similarities and differences
between Windsor and Chadha.95 He distinguished Windsor from Chadha
by saying that in Chadha, both congressional Houses were allowed to
intervene because the suit directly threatened to destroy a power that they
had.96 He pointed out that when the Chadha Court said that there was
adversity even without Congress, this was only true because the case
originated at the court of appeals as a challenge to an agency action; to
apply that to all appeals would be not only applying dictum, but incorrect
it. True, says the majority, but judicial review must march on regardless, lest we
undermine the clear dictate of the separation-of-powers principle that when an Act of
Congress is alleged to conflict with the Constitution, it is emphatically the province and
duty of the judicial department to say what the law is. That is jaw-dropping. It is an
assertion of judicial supremacy over the peoples Representatives in Congress and the
Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of
government, empowered to decide all constitutional questions, always and everywhere
primary in its role. (citations omitted)).
91. Id. at 2699.
92. Id.
93. Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
94. Id.
95. Id. at 2700.
96. Id. (The closest we have ever come to what the Court blesses today was our
opinion in INS v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L.Ed.2d 317 (1983). But in
that case, two parties to the litigation disagreed with the position of the United States and
with the court below: the House and Senate, which had intervened in the case. Because
Chadha concerned the validity of a mode of congressional actionthe one-house
legislative vetothe House and Senate were threatened with destruction of what they
claimed to be one of their institutional powers. The Executive choosing not to defend that
power, we permitted the House and Senate to intervene. Nothing like that is present
here. (footnotes omitted)).

2015]

STANDING IN UNITED STATES V. WINDSOR

903

dictum.97 He concluded his Chadha discussion by saying, When a

private party has a judicial decree safely in hand to prevent his injury,
additional judicial action requires that a party injured by the decree seek
to undo it. In Chadha, the intervening House and Senate fulfilled that
requirement. Here no one does.98
Justice Scalia next argued that it was irrelevant if the prudential
concerns of standing were met because there was no Article III
controversy.99 Adverseness is more than simply a prudential aspect of
Article III.100 He pointed out that in Deposit Guaranty, there was still a
continuing disagreement on one issue between the parties; this was also
true with Camreta.101
Justice Scalia concluded by addressing the policy issues that would
result from his opinion. He noted that if Presidents decide that laws are
unconstitutional, the Court may not get the chance to hear the issue;
however, he believes that it should be this way, and only when the
President enforces an unconstitutional statute should the case come
before the Court.102 Here, he concluded, it was absolutely unnecessary
for the Court to hear the case, and the majority did so solely because it
wanted to.103
3. Justice Alitos Dissent
Justice Alito agreed with Justice Scalia regarding the Governments
standing to appeal; however, he believed that BLAGs standing was
more complicated.104 Justice Alito argued that the Chadha Court was
correct in holding that Congress had standing to appeal in that case
because finding the one-House veto unconstitutional directly limited
Congress power to legislate.105 The Chadha Court had noted that
Congress is the proper party to defend the validity of a statute when
the executive branch, as a defendant, agrees that a statute is
unconstitutional.106 Justice Alito disagreed with attempts to distinguish

97.
98.
99.
100.
101.
102.
103.
104.
105.
106.

Id. at 270001.
Id. at 2701 (emphasis omitted).
Id.
Id.
Id. at 270102.
Id.
Id. at 2703.
Id. at 271112 (Alito, J., dissenting).
Id. at 2712.
Id. at 271213 (quoting INS v. Chadha, 462 U.S. 919, 940 (1983)).

904

WAYNE LAW REVIEW

[Vol. 60:891

Chadha, arguing that overturning a statute would impair Congresss

power just as finding the one-House veto to be unconstitutional did.107
Justice Alito referenced Coleman v. Miller, where the Court held that
individual state senators had standing to appeal a decision that upheld
changes to procedures for ratifying a Federal Constitution amendment.108
In Coleman, the Court noted that the senators had standing because their
votes would have been sufficient to defeat the amendment had they
prevailed on the merits of the case.109 Justice Alito compared BLAG to
the senators, noting that the Houses support was necessary to pass
DOMA, and the Houses vote would have been sufficient to prevent
DOMAs repeal if the Court had not chosen to execute that repeal
judicially.110
Justice Alito also referenced Raines v. Byrd, where the Court held
that individual Congressmen who had voted against the Line Item Veto
Act111 lacked standing to challenge the acts constitutionality in federal
court.112 He distinguished Raines from Windsor for two reasons: (1) the
Raines Court addressed individual members lack of standing and used
the fact that the members did not have support from their respective
chambers as a whole as evidence that they lacked standing,113 and (2) the
congressional members in Raines did not have the votes sufficient to
cause the acts passage to fail, whereas in Windsor, the Houses support
was necessary for DOMA to pass.114
Justice Alito again referenced the Chadha Courts statement that
Congress is the proper party to defend the validity of a statute when
the Executive refuses to do so on constitutional grounds.115 He
concluded by saying that where a court holds a statute to be
unconstitutional and the executive branch refuses to defend the law,
Congress both has standing to defend the undefended statute and is a
proper party to do so.116

107. Id. at 2713.

108. Id. (citing Coleman v. Miller, 307 U.S. 433, 438, 446 (1939)).
109. Id. (quoting Coleman, 307 U.S. at 446).
110. Id.
111. Line Item Veto Act, Pub. L. No. 104-130, 110 Stat. 1200 (1996).
112. Windsor, 133 S. Ct. at 2713 (Alito, J., dissenting) (citing Raines v. Byrd, 521 U.S.
811, 829 (1997)).
113. Id. (citing Raines, 512 U.S. at 829).
114. Id. at 2714 (citing Raines, 512 U.S. at 823).
115. Id. (quoting INS v. Chadha, 462 U.S. 919, 940 (1983)).
116. Id.

2015]

STANDING IN UNITED STATES V. WINDSOR

905

III. ANALYSIS
A. The United States Was Not an Aggrieved Party Under the Case or
Controversy Clause
Because the United States, through the Department of Justice, had
already received all that it wanted from the district court, the Supreme
Court should have held that it (and the Second Circuit Court of Appeals)
did not have jurisdiction to hear the Governments appeal. The
Government was correct in arguing that it met the Article III injury
requirement.117 The Government was injured by (1) the lower courts
requirement that it pay Windsor the tax refund,118 (2) the invalidation of
DOMA,119 and (3) the preclusion of enforcement of DOMA that would
have taken place sans the lower courts decision.120 The Government was
also correct in asserting that the lower courts caused those injuries and
that they would be redressed by reversal of those decisions;121
however, a reversal of those decisions would not be a favorable
decision.122 The American Heritage Dictionary defines favorable as
[g]ranting what has been desired or requested: a favorable reply.123
Because the Solicitor General, arguing for the Government on the merits
of the case, concluded his brief to the Supreme Court by saying that the
judgment of the court of appeals should be affirmed,124 it is quite clear
117. Brief for the United States on the Jurisdictional Questions at 1819, Windsor, 133
S. Ct. 2675 (No. 12-307), 2013 WL 683046.
118. See Franchise Tax Bd. of Cal. v. Alcan Aluminum Ltd., 493 U.S. 331, 336 (1990)
(holding that actual financial injury is sufficient to establish Article III standing).
119. See Maine v. Taylor, 477 U.S. 131, 13637 (1986) (holding that conclusive
adjudication that [a statute] is unconstitutional gives a state a substantial stake in the
case sufficient to establish Article III standing).
120. See id. (holding that a State clearly has a legitimate interest in the continued
enforceability of its own statutes, sufficient to establish Article III standing); see also
City of Erie v. Paps A.M., 529 U.S. 277 (2000) (holding that a municipality precluded
from enforcing an ordinance on constitutional grounds has Article III standing).
121. Brief for the United States on the Jurisdictional Questions, supra note 117, at 19.
122. See supra note 16 and accompanying text.
123. The American Heritage Dictionary, HOUGHTON MIFFLIN HARCOURT PUBLISHING
CO.,
http://www.ahdictionary.com/word/search.html?q=favorable&submit.x=42&submit.y=24
(last visited March 17, 2015) (The full list of definitions is 1. Advantageous; helpful:
favorable winds. 2. Encouraging; propitious: a favorable diagnosis. 3. Manifesting
approval; commendatory: a favorable report. 4. Winning approval; pleasing: a favorable
impression. 5. Granting what has been desired or requested: a favorable reply. 6.
Indulgent or partial: listened with a favorable ear. The fifth definition is the most
applicable to the phrase favorable decision.).
124. Brief for the United States on the Merits Question at 54, United States v.
Windsor, 133 S. Ct. 2675 (No. 12-307), 2013 WL 683048.

906

WAYNE LAW REVIEW

[Vol. 60:891

that the Governments injuries would not be redressed by granting the

Governments desired decision. On the contrary, as Justice Scalia
pointed out in his dissent, such a decision would not cure the
Governments injury, but carve it into stone.125
In holding that the Government had a sufficient stake to maintain
Article III standing, the Court focused on the wrong portion of the test.
The Court focused on the fact that the Government was injured and that a
reversal by the Court would have remedied this injury;126 however, as
already established, it was not the lack of injury that should have
precluded the Government from being able to appeal, but rather the lack
of a favorable decision having the capability of redressing that
injury.127
The Court also erred by relying on Chadha to support its Article III
standing rationale.128 The Court in Chadha first pointed out that there
125. Windsor, 133 S. Ct. at 2699 (Scalia, J., dissenting).
126. Id. at 2686 (majority opinion) (In this case the United States retains a stake
sufficient to support Article III jurisdiction on appeal and in proceedings before this
Court. The judgment in question orders the United States to pay Windsor the refund she
seeks. An order directing the Treasury to pay money is a real and immediate economic
injury, indeed as real and immediate as an order directing an individual to pay a tax.
That the Executive may welcome this order to pay the refund if it is accompanied by the
constitutional ruling it wants does not eliminate the injury to the national Treasury if
payment is made, or to the taxpayer if it is not. The judgment orders the United States to
pay money that it would not disburse but for the courts order. The Government of the
United States has a valid legal argument that it is injured even if the Executive disagrees
with 3 of DOMA, which results in Windsors liability for the tax. Windsors ongoing
claim for funds that the United States refuses to pay thus establishes a controversy
sufficient for Article III jurisdiction. (citations omitted)).
127. See supra notes 103124 and accompanying text.
128. See Windsor, 133 S. Ct. at 270001 (Scalia, J., dissenting) (To be sure, the Court
in Chadha said that statutory aggrieved-party status was not altered by the fact that the
Executive may agree with the holding that the statute in question is unconstitutional. But
in a footnote to that statement, the Court acknowledged Article IIIs separate requirement
of a justiciable case or controversy, and stated that this requirement was satisfied
because of the presence of the two Houses of Congress as adverse parties. Later in its
opinion, the Chadha Court remarked that the United States announced intention to
enforce the statute also sufficed to permit judicial review, even absent congressional
participation. That remark is true, as a description of the judicial review conducted in the
Court of Appeals, where the Houses of Congress had not intervened. (The case originated
in the Court of Appeals, since it sought review of agency action under 8 U.S.C.
1105a(a) (1976 ed.).) There, absent a judgment setting aside the INS order, Chadha
faced deportation. This passage of our opinion seems to be addressing that initial standing
in the Court of Appeals, as indicated by its quotation from the lower courts opinion. But
if it was addressing standing to pursue the appeal, the remark was both the purest dictum
(as congressional intervention at that point made the required adverseness beyond
doubt), and quite incorrect. When a private party has a judicial decree safely in hand to
prevent his injury, additional judicial action requires that a party injured by the decree

2015]

STANDING IN UNITED STATES V. WINDSOR

907

was a case or controversy because from the time of Congress formal

intervention . . . the concrete adverseness [was] beyond doubt.129 The
Court went on to say, Second, prior to Congress intervention, there was
adequate Art. III adverseness even though the only parties were the INS
and Chadha;130 however, it is unclear what the Court meant by this. If
the Court was addressing the issue of whether the Ninth Circuit had
jurisdiction to hear the case, then the Court was correct, because Chadha
was the petitioner at that time and had a sufficient stake in the
litigation.131 If, on the other hand, the Court was simply saying that even
without Congresss intervention there would be adequate adverseness,
this would be both dictum and incorrectdictum because it was
unnecessary to the holding of the case because Congress had in fact
intervened,132 and incorrect for the same reasons that the Court in
Windsor was incorrect.133 The majority in Windsor concluded that this
was not dictum, but necessary to the Courts holding that there was
Article III standing before Congress intervened, and thus, the refusal of
the Executive to provide the relief sought suffices to preserve a
justiciable dispute as required by Article III.134 The problem with this
logic is that prior to Congresss intervention, the petitioner in Chadha
clearly had standing as an injured party;135 such was not the case with
Windsor.136
In order to have Article III standing, the Governments desired
outcome needed to be able to redress its injury.137 If the Government
wished to remain injured, as it implied by its brief on the merits,138 it
seek to undo it. In Chadha, the intervening House and Senate fulfilled that requirement.
Here no one does. (citations omitted)).
129. Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 939 (1983).
130. Id.
131. Id. at 936 (quoting Duke Power Co. v. Carolina Envtl. Study Grp., 438 U.S. 59,
79 (1978)) (holding that Chadha has demonstrated injury in fact and a substantial
likelihood that the judicial relief requested will prevent or redress the claimed injury);
see also Chadha v. Immigration & Naturalization Serv., 634 F.2d 408 (9th Cir. 1981).
132. See BLACKS LAW DICTIONARY 1177 (9th ed. 2009) (defining obiter dictum as a
judicial comment made while delivering a judicial opinion, but one that is unnecessary
to the decision of the case and therefore not precedential (although it may often be
considered persuasive). Often shortened to dictum).
133. See supra notes 125126 and accompanying text.
134. United States v. Windsor, 133 S. Ct. 2675, 2686 (2013).
135. See supra note 129 and accompanying text.
136. Had Windsor lost at the district court level and been the petitioner at the Ninth
Circuit, this analysis would have applied to the Windsor case, but only at the circuit court
level, and the Government would have not met the Article III standing requirements to
appeal to the Supreme Court for the reasons already stated.
137. See supra note 18 and accompanying text.
138. Brief for the United States on the Merits Question, supra note 124, at 54.

908

WAYNE LAW REVIEW

[Vol. 60:891

could have done so without the intervention of the court. If both parties
agree entirely on the outcome, there is no controversy, and there is no
need for a case. Because the Government could not remedy its injury
through its desired outcome, both the Ninth Circuit and Supreme Court
lacked Article III jurisdiction, and the Court should have held as such.
B. Prudential Limitations on Jurisdiction Also Should Have Barred the
Court from Hearing the Case
A general prudential rule in the United States judicial system is that a
party may not appeal a decision in its favor.139 This is the Deposit
Guaranty rule that only an aggrieved party has a right to appeal, and as
the Court in Deposit Guaranty pointed out, this is a prudential rule
created by the courts that limits jurisdiction, not a constitutional rule.140
The Court established this general rule so that courts could better allocate
resources to cases that actually warranted appellate review.141 To fully
understand the Deposit Guaranty rule, a review of the cases leading up to
its creation is warranted. The rule was based on the holding in Electrical
Fittings Corp. v. Thomas & Betts Co., where the Court said, A party
may not appeal from a judgment or decree in his favor, for the purpose of
obtaining a review of findings he deems erroneous which are not
necessary to support the decree.142 The Electrical Fittings holding was
139. See Dalle Tezze v. Dir., Office of Workers Comp. Programs, U.S. Dept of
Labor, 814 F.2d 129, 133 (3d Cir. 1987) (citing Pub. Serv. Commn v. Brashear Freight
Lines, Inc. 306 U.S. 204 (1939)) ([A] party has no right to appeal from a favorable
judgment.); see also Byron v. Clay, 867 F.2d 1049, 1050 (7th Cir. 1989) ([Y]ou cant
appeal from a judgment entirely in your favor.).
140. Deposit Guar. Natl Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 33334 (1980)
(Ordinarily, only a party aggrieved by a judgment or order of a district court may
exercise the statutory right to appeal therefrom. A party who receives all that he has
sought generally is not aggrieved by the judgment affording the relief and cannot appeal
from it. The rule is one of federal appellate practice, however, derived from the statutes
granting appellate jurisdiction and the historic practices of the appellate courts; it does
not have its source in the jurisdictional limitations of Art. III. (citations omitted)).
141. Camreta v. Greene, 131 S. Ct. 2020, 2030 (2011) (As a matter of practice and
prudence, we have generally declined to consider cases at the request of a prevailing
party, even when the Constitution allowed us to do so. Our resources are not well spent
superintending each word a lower court utters en route to a final judgment in the
petitioning partys favor. (citations omitted)).
142. Elec. Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242 (1939) (The Court
went on to say, But here the decree itself purports to adjudge the validity of claim 1, and
though the adjudication was immaterial to the disposition of the cause, it stands as an
adjudication of one of the issues litigated. We think the petitioners were entitled to have
this portion of the decree eliminated, and that the Circuit Court of Appeals had
jurisdiction, as we have held this court has, to entertain the appeal, not for the purpose of
passing on the merits, but to direct the reformation of the decree. (footnotes omitted)).

2015]

STANDING IN UNITED STATES V. WINDSOR

909

based on Lindheimer v. Illinois Bell Telephone Co., where the Court held
that a company could not appeal the ruling of a lower court simply
because it miscalculated the value of the companys property when the
value was not necessary for the court to reach the ruling that it did.143
Although the Lindheimer Court did not address Article III standing, it
appears as if the party met the requirements: (1) it was injured in that its
property was incorrectly valued, (2) by the lower court, and (3) it could
only be remedied by overturning that specific finding of fact.144 Even
though the petitioner seems to have met the Article III requirements, the
Court dismissed the appeal.145 The reason seems quite obvious
appellate courts should not waste their time on issues that are
insignificant to the trial courts ultimate decision, even if the party was
technically injured in some way.146
While the Supreme Court has not adopted a specific definition of
aggrieved, the Connecticut Supreme Courts definition fits well with
the history behind the Deposit Guaranty rule. The Connecticut rule
requires a specific, personal and legal interest in the subject matter of
the decision that has been specifically and injuriously affected by the
decision.147 In reading that rule, it only makes sense to require that there
be injury both to the personal and legal interest; to hear a case where
ones legal interest has not been injured does not make sense when
keeping in mind that the Supreme Court established the prudential rule to
ensure proper allocation of judicial resources.
In Windsor, while the Government correctly argued that it was
aggrieved due to being precluded from enforcing DOMA and having to
pay Windsor a tax refund,148 the Government lost this aggrieved status
when it relinquished its legal interest in the case by asking for the Second
Circuits decision to be upheld.149 The Second Circuit could not possibly
have injuriously affected the Governments legal interest if the
Government then went on to ask the Court to uphold that decision. It
143. Lindheimer v. Illinois Bell Tel. Co., 292 U.S. 151, 176 (1934) (The company
was successful in the District Court and has no right of appeal from the decree in its
favor. The company is not entitled to prosecute such an appeal for the purpose of
procuring a review of the findings of the court below with respect to the value of the
companys property or the other findings of which it complains.).
144. Id. at 176; see supra notes 1417 and accompanying text.
145. Lindheimer, 292 U.S. at 176.
146. See supra note 142.
147. See supra note 23 and accompanying text.
148. Brief for the United States on the Jurisdictional Questions, supra note 117, at 17
18 (Indeed, in some ways, the United States may be more aggrieved here than the INS
was in Chadha. The judgment not only precludes the United States from enforcing a
statute, but also requires the payment of more than $360,000 in federal Treasury funds.).
149. See supra note 124 an accompanying text.

910

WAYNE LAW REVIEW

[Vol. 60:891

would make no sense for the Court to establish a rule to ensure efficient
allocation of court resources that allows a party to use court resources
just to achieve the same result that was achieved at the lower court.
The Windsor majority was also incorrect in relying on Chadha to
support its holding that prudential limitations did not bar the Court from
hearing the case. The majority focused on the fact that there was
adverseness between the parties because amici curiae were defending the
constitutionality of DOMA;150 however, a lack of adverseness was not
the issue. Reliance on Chadha was also problematic because similar to
its Article III jurisdiction analysis, the Court in Chadha made the same
mistake as the Court in Windsor; the Chadha Court should have held that
the INS was not an aggrieved party, because its legal interest was no
longer injuriously affected once it agreed with Chadha on the merits of
the case.151
For these reasons, the Windsor Court should not have heard the
appeal from the Government. Instead, it should have held that it, and the
Second Circuit, did not have standing to hear the appeal. Because BLAG
also petitioned for a writ of certiorari,152 the question would then arise
whether the Court could have ruled on the case had it granted BLAGs
petition.153
C. BLAG Would Not Have Had Standing Even if the Court Had Granted
Its Appeal
If the Court had considered the issue,154 it should have held that
BLAG did not have standing to intervene in the case, because BLAG
was not an injured party. Parties without Article III standing cannot
litigate in court.155 The Article III standing requirements are not met by
150. United States v. Windsor, 133 S. Ct. 2675, 2687 (2013).
151. See supra notes 14950 and accompanying text. Had the Chadha Court held this,
it still would have been proper to hear the appeal since Congress was a proper petitioner.
See infra notes 157158 and accompanying text. The Chadha Court should have held that
only Congress had standing to appeal.
152. Petition for a Writ of Certiorari, Windsor, 133 S. Ct. 2675 (No. 12-785), 2012 WL
6755143.
153. See Bipartisan Legal Advisory Group of the United States House of
Representatives v. Windsor, 133 S. Ct. 2885 (2013) (Petition for writ of certiorari to the
United States Court of Appeals for the Second Circuit denied.).
154. See Windsor, 133 S. Ct. at 2688 (For these reasons, the prudential and Article III
requirements are met here; and, as a consequence, the Court need not decide whether
BLAG would have standing to challenge the District Courts ruling and its affirmance in
the Court of Appeals on BLAGs own authority.).
155. Valley Forge Christian Coll. v. Ams. United for Separation of Church and State,
Inc., 454 U.S. 464, 47576 (1982).

2015]

STANDING IN UNITED STATES V. WINDSOR

911

citizens who simply allege an abstract injury in nonobservance of the

Constitution.156 In Chadha, the Court stated that Congress is the proper
party to defend a statute when the executive branch and plaintiffs are in
agreement that it is unconstitutional.157 In actuality, Congresss standing
in Chadha existed because ruling that the one-House veto was
unconstitutional would directly harm it.158 The holding in Chadha has
not been extended beyond the legislative veto,159 making it clear that for
Congress to intervene, it must have an actual stake in the litigation, not
just an abstract injury.160 Because the only interest BLAG had was an
abstract injury in nonobservance of the Constitution,161 there was no
reason to treat BLAG any more special than all other citizens. For this
reason, Coleman was inapplicable, contrary to Justice Alitos
argument.162 At issue in Windsor was not the holding of a congressional
vote, but enforcement of the statute.163 Once the House had voted to pass
DOMA, it completed its part of the legislative process, and whether the
House could have stopped repeal of DOMA was irrelevant because that
was not the issue before the Court.
Furthermore, individual members of Congress do not have the
sufficient personal stake to be deemed to have standing regarding
constitutional challenges to statutes.164 Not all of Congress had
intervened in Windsor, because BLAG only represented the House of
156. Id. at 482 (quoting Schlesinger v. Reservist Comm. to Stop the War, 418 U.S.
208, 223, n. 13 (1974)).
157. Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 939 (1983).
158. Matthew I. Hall, Standing of Intervenor-Defendants in Public Law Litigation, 80
FORDHAM L. REV. 1541, 1548 (2012).
159. Id.
160. See Valley Forge, 454 U.S. at 482 (quoting Schlesinger, 418 U.S. at 223 n.13).
161. See Schlesinger, 418 U.S. at 223 n.13.
162. See supra notes 10810 and accompanying text.
163. See supra notes 5055 and accompanying text.
164. Raines v. Byrd, 521 U.S. 811, 829830 (1997) (In sum, appellees have alleged
no injury to themselves as individuals . . . , the institutional injury they allege is wholly
abstract and widely dispersed . . . , and their attempt to litigate this dispute at this time
and in this form is contrary to historical experience. We attach some importance to the
fact that appellees have not been authorized to represent their respective Houses of
Congress in this action, and indeed both Houses actively oppose their suit. We also note
that our conclusion neither deprives Members of Congress of an adequate remedy (since
they may repeal the Act or exempt appropriations bills from its reach), nor forecloses the
Act from constitutional challenge (by someone who suffers judicially cognizable injury
as a result of the Act). Whether the case would be different if any of these circumstances
were different we need not now decide. We therefore hold that these individual members
of Congress do not have a sufficient personal stake in this dispute and have not alleged
a sufficiently concrete injury to have established Article III standing. (citations
omitted)).

912

WAYNE LAW REVIEW

[Vol. 60:891

Representatives, not the Senate.165 For this reason, Justice Alitos first
objection to the applicability of Raines was incorrect.166 Justice Alito was
also incorrect in distinguishing Raines from Windsor on the grounds that
the congressional members in Raines were not the pivotal figures whose
votes would have caused the Act to fail absent some challenged
action.167 In Windsor there simply was no vote to repeal DOMA, so the
issue of whose votes were sufficient was irrelevant. Because BLAG
spoke only for one chamber of Congress and had only an abstract injury
due to the pending invalidation of DOMA, if the Court had needed to
address the issue, it should have held that BLAG did not have standing to
intervene.
D. Why Does the Jurisdiction Issue Matter?
1. The Constitutional Issue
The Courts most significant error in the Windsor case was in finding
that the Case or Controversy Clause did not bar the Court from hearing
the case. As the Court noted in Allen v. Wright, The case-or-controversy
doctrines state fundamental limits on federal judicial power in our system
of government.168 The limitation placed on the judiciary by the Clause is
two-fold: it limits the federal courts to hearing questions presented in an
adversary context that can be resolved by the judiciary, and it define[s]
the role assigned to the judiciary in a tripartite allocation of power to
assure that the federal courts will not intrude into areas committed to the
other branches of government.169 The mere fact that the majority
thought that it was correctly resolving an important issue does not mean
165. Even BLAGs representation of the House of Representatives was shaky, at best.
In 2011, BLAG voted to recommend that counsel be retained to conduct DOMA
litigation on behalf of the BLAG, not on behalf of the House of Representatives. Chris
Geidner, House Republicans Vote to Defend DOMA in Court on Party Line 3-2 Vote,
METRO
WEEKLY
(Mar.
9,
2011,
6:14
PM),
http://www.metroweekly.com/poliglot/2011/03/house-republicans-vote-to-defe.html. It
was not until early 2013, nearly a month after the Court had granted certiorari, that the
House of Representatives voted to give BLAG the authority to speak for the entire House
in front of the Supreme Court. Chris Johnson, House Approves Rules Affirming
Commitment
to
DOMA,
WASHINGTON
BLADE
(Jan.
4,
2013),
http://www.washingtonblade.com/2013/01/04/house-approves-rules-affirmingcommitment-to-doma/.
166. See supra note 113 and accompanying text.
167. See supra note 114.
168. Allen v. Wright, 468 U.S. 737, 750 (1984), abrogated on other grounds by
Lexmark Intl, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014).
169. Flast v. Cohen, 392 U.S. 83, 95 (1968).

2015]

STANDING IN UNITED STATES V. WINDSOR

913

that it can ignore the constitutional limitations on the Court. No matter

how important the question at the heart of a case is, the constitutional
limits on the judiciary must be preserved.170 The ends cannot justify the
means when it comes to the judiciary; to do so would render the Case
and Controversy Clause meaningless and destroy the limitations of the
judiciary entirely.
2. The Prudential Issue
While not constitutionally mandated, consistency in the law is
desirable.171 For this reason, the majority should have followed the
Deposit Guaranty rule and held that even if the Article III requirements
were met, the Government could not appeal, because the lower court
ruled in favor of the Governments arguments in its briefs.172 The
majority gave no meaningful explanation for why the prudential
limitations on its jurisdiction should be ignored; it simply pointed out
that the case was not routine and moved on.173 By doing this, the
majority opened up the door for a problem that it warned about: making
it seem appropriate for the Executive as a routine exercise to challenge
statutes in court instead of making the case to Congress for amendment
or repeal.174 In holding that the prudential limitations could be ignored
in Windsor, the majority sacrificed consistency in the law in order to rule
on the substantive issue. This will not only cause confusion for future
litigants, but politicized the Court by unnecessarily drawing it into the
middle of a heated political battle.

170. Harold J. Krent, Separating the Strands in Separation of Powers Controversies,

74 VA. L. REV. 1253, 1316 (1988) (In sum, the case or controversy requirement marks
the boundary of the judiciarys power in our system of separated powers. Just as the
bicameralism, presentment, and appointments clause provisions restrict the authority of
Congress and the executive, the article III limitations confine the judiciary. Efforts to vest
the judiciary with greater powerwhether through acts of Congress, requests of the
President, or judicial instigationshould therefore be invalidated regardless of the
potential political benefits such arrangements could bring. The constitutional structure
presupposes that, over time, insulating the judiciary from too great an involvement in the
political affairs of its coordinate branches best preserves judicial independence and
individual liberty.).
171. Martinez v. Craven, 429 F.2d 18, 20 (1970) (Consistency in legal rulings is
desirable, but inconsistency is not unconstitutional.).
172. See supra Part III.B.
173. See supra note 85 and accompanying text.
174. United States v. Windsor, 133 S. Ct. 2675, 2689 (2013).

914

WAYNE LAW REVIEW

[Vol. 60:891

IV. CONCLUSION
The Court made a mistake when it held that the Government had
standing to appeal the decision of the Second Circuit.175 Whether the
Court reached the proper conclusion on the merits should not be more
important than whether the Court used the proper procedure to get to that
conclusion. By failing to wait to decide the issue until it had proper
jurisdiction, the Court overstepped its constitutional limits.176 The Court
also promoted inconsistency in the law by failing to adhere to the
prudential limits that have been set down in past decisions, without
expressly overruling them.177 Such mistakes have a broader impact than
on the issue of marriage; they impact the entire American legal system
going forward, and by making such mistakes, the Court turned its
decision into one that calls into question the integrity of the judicial
process.178

175.
176.
177.
178.

See supra Part III.B.

See supra Part III.D.1.
See supra Part III.D.2.
See supra note 1 and accompanying text.

REQUIRING A TRANSVAGINAL ULTRASOUND PRIOR TO

ABORTION: AN UNDUE BURDEN ON THE FREEDOM TO
CHOOSE
CHELSEY MARSH
I. INTRODUCTION .................................................................................. 915
II. BACKGROUND .................................................................................. 917
A. History of the Abortion Right..................................................... 917
B. Current Status of Abortion Rights.............................................. 918
C. Abortion Laws in the Casey Decision........................................ 918
D. Abortion Laws in the Okpalobi Decision .................................. 920
E. Abortion Laws in the Stenberg Decision.................................... 920
F. Ultrasound Requirements .......................................................... 921
III. ANALYSIS ........................................................................................ 923
A. Transvaginal Ultrasounds Are an Invasion into a Womans
Body ......................................................................................... 924
B. Transvaginal Ultrasounds Create an Additional Cost for the
Abortion Procedure ................................................................. 926
C. Transvaginal Ultrasounds Could Result in Psychological
Harm ........................................................................................ 928
IV. CONCLUSION ................................................................................... 931

I. INTRODUCTION
To a certain degree, citizens of the United States are granted freedom
of choice concerning their decisions regarding abortion.1 Courts interpret
this freedom as a part of the U.S. Constitution, deriving from the
liberty interest found in the Due Process Clause of the Fourteenth
Amendment.2 The modern-day status of this abortion right is set forth in
Planned Parenthood of Southeastern Pennsylvania v. Casey, which
dictates that a woman has a freedom of choice prior to viability of the
fetus and that states cannot inhibit this choice by imposing an undue

Associate Attorney, Miller, Canfield, Paddock, and Stone, P.L.C. B.A.,

University of Michigan; J.D., magna cum laude, Wayne State University.
1. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992).
2. Id. See generally U.S. CONST. amend. XIV, 1.

915

916

WAYNE LAW REVIEW

[Vol. 60:915

burden.3 What constitutes an undue burden is a question frequently

presented before courts throughout the nation.4
A modern trend amongst state legislatures is to include an ultrasound
provision within abortion legislation.5 Some states have enacted laws
requiring that a woman seeking an abortion receive information on
obtaining an ultrasound, where others require that the woman actually
has an ultrasound prior to the abortion.6 The specifics of the laws
regulating the ultrasound vary from state to state.7 Laws range from
requiring a woman to view the ultrasound image to offering her the
opportunity to see it.8
This trend is in the process of yet another transition.9 Now, instead of
requiring an ultrasound, legislation has been passed to require a
transvaginal ultrasound as opposed to an abdominal ultrasound.10 The
implications of this transition constitute an even stronger undue burden
on the womans freedom of choice. While many arguments against
ultrasound requirements prior to an abortion are applicable to either an
abdominal or transvaginal ultrasound, the focus of this Note will be on
the added harm caused by transvaginal ultrasounds.
There are three primary reasons why the requirement of a
transvaginal ultrasound constitutes an undue burden on a womans
freedom to choose. First, transvaginal ultrasounds, as opposed to mere
abdominal ultrasounds, are an invasion into a womans body that facially
constitutes an undue burden on a womans right to choose.11 Second,
transvaginal ultrasounds create an additional cost for the abortion
procedure.12 Finally, transvaginal ultrasounds have the potential of
3. Id. at 846, 874.
4. E.g., Okpalobi v. Foster, 190 F.3d 337 (5th Cir. 1999); Stenberg v. Carhart, 530
U.S. 914 (2000). Jurisprudence regarding abortion began with an unequivocal articulation
of the fundamental right to choose. Court opinions illustrate the multiple and conflicting
views pertaining to the status and dignity of both the woman and the fetus. See also Paula
Abrams, The Scarlet Letter: The Supreme Court and the Language of Abortion Stigma,
19 MICH. J. GENDER & L. 293, 294 (2013).
5. See, e.g., MICH. COMP. LAWS ANN. 333.17015 (West 2014); 2012 La. Sess. Law
Serv. 685 (West).
6. State Policies in Brief: Requirements for Ultrasound, GUTTMACHER INST. (May 1,
2014), http://www.guttmacher.org/statecenter/spibs/spib_RFU.pdf.
7. Id.
8. Id.
9. See, e.g., LA. REV. STAT. ANN. 40:1299.35.2 (2013).
10. Id.
11. See Pelvic Ultrasound and Transvaginal Ultrasound, HARVARD HEALTH
PUBLICATIONS,
http://www.health.harvard.edu/diagnostic-tests/pelvic-ultrasound-andtransvaginal-ultrasound.htm (last visited Mar. 3, 2013).
12. Sarah E. Weber, An Attempt to Legislate Morality: Forced Ultrasounds as the
Newest Tactic in Anti-Abortion Legislation, 45 TULSA L. REV. 359, 37072 (2009).

2015] AN UNDUE BURDEN ON THE FREEDOM TO CHOOSE

917

resulting in psychological harm that would hinder a pregnant womans

ability to make a rational decision, and therefore, become an undue
burden on a womans freedom of choice prior to viability.13
This new requirement is a medically unnecessary and physically
intrusive procedure that imposes both additional cost and psychological
harm upon a woman, and as a result, too greatly infringes upon a
womans Fourteenth Amendment freedom of choice.14
II. BACKGROUND
A. History of the Abortion Right
The Fourteenth Amendment of the U.S. Constitution, in relevant
part, states: nor shall any State deprive any person of life, liberty, or
property, without due process of law.15 A womans freedom of choice
regarding abortion derives from the liberty interest found in the Due
Process Clause of the Fourteenth Amendment.16 A woman was not
always free to make this choice; however, that changed in 1973.17
13. Jack M. Valpey, Testimony of Jack M. Valpey, MD, MPH, PHYSICIANS FOR
REPRODUCTIVE CHOICE AND HEALTH 2, Mar. 28, 2007, available at
http://www.prch.org/files/37_valpey.pdf.
14. Abortion is socially stigmatized throughout the United States. Abrams, supra note
4, at 295. This stigmatization is generated through political and legal discourse. Id. The
recent trend of anti-choice legislation in both federal and state legislatures indicates the
increasing intensity of this stigma. Id. Laws mandating invasive ultrasounds, biased
counseling sessions, and onerous waiting periods, along with fetal personhood and fetal
pain laws, are intended to shame and punish women who seek abortions. Id.
15. U.S. CONST. amend. XIV, 1.
16. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992); see also
Carey v. Population Servs. Intl, 431 U.S. 678, 68485 (1977) (stating that the liberty
which encompasses those decisions includes the interest in independence in making
certain kinds of important decisions. While the outer limits of this aspect of [protected
liberty] have not been marked by the Court, it is clear that among the decisions that an
individual may make without unjustified government interference are personal decisions
relating to marriage, procreation, contraception, family relationships, and child rearing
and education (citiations omitted)).
17. Roe v. Wade, 410 U.S. 113 (1973). The Court held that the Texas statutes
criminalizing abortion were unconstitutional. Id. at 11718. The statutes criminalized
abortion at any stage of pregnancy (with an exception in the circumstance where the
abortion was needed to save the mothers life). Id. at 166. The holding was divided into
three parts: in the stage prior to the approximate end of the first trimester, the decision
regarding abortion is to be left to the medical judgment of the pregnant womans
attending physician; in the stages following the first trimester, the state may regulate
abortions in ways that are reasonably related to maternal health in order to promote its
interest in the health of the mother; and following viability, the state may regulate or
proscribe abortion (except in circumstances where it is for the life or health of the
mother) in order to promote its interest in the potential human life. Id. at 16465.

918

WAYNE LAW REVIEW

[Vol. 60:915

B. Current Status of Abortion Rights

Planned Parenthood of Southeastern Pennsylvania v. Casey sets
forth the current status of abortion rights in the United States.18 First, the
Court recognized a womans freedom of choice prior to viability, as well
as a womans ability to obtain an abortion without undue interference by
the state.19 The state did not have a strong enough interest before the
point of fetal viability to restrict abortion or impose any sort of
substantial obstacle before a womans right to choose.20 Second, the
Court confirmed the states power to prohibit abortions following fetal
viability, as long as the law contains an exception for pregnancies
endangering the womans life or health.21 Third, the Court reaffirmed
the states legitimate interest in protecting the womans health and the
life of the fetus beginning at the onset of pregnancy.22 The Court clarified
the meaning of undue burden by articulating a standard for future
courts to adhere to: an undue burden is presented when a state regulation
has the purpose or effect of placing a substantial obstacle in the path of a
woman seeking an abortion of a nonviable fetus. A statute with this
purpose is invalid because the means chosen by the state to further the
interest in potential life must be calculated to inform the womans free
choice, not hinder it. And a statute which, while furthering the interest in
potential life or some other valid state interest, has the effect of placing a
substantial obstacle in the path of a womans choice cannot be
considered a permissible means of serving its legitimate ends.23
The Court further noted that, unless the regulation is a substantial
burden, a state measure designed to persuade her to choose childbirth
over abortion will be upheld if reasonably related to that goal.24
C. Abortion Laws in the Casey Decision
The Casey Court then proceeded to evaluate Pennsylvania law in
order to determine whether it presented an undue burden on a womans
right to choose.25 The Court found the informed consent provision,

18.
19.
20.
21.
22.
23.
24.
25.

Casey, 505 U.S. at 846 (reaffirming the three-part holding of Roe v. Wade).
Id.
Id.
Id.
Id.
Id. at 877 (emphasis added).
Casey, 505 U.S. at 878.
Id. at 887901.

2015] AN UNDUE BURDEN ON THE FREEDOM TO CHOOSE

919

requiring the doctor to disclose certain facts to the woman, to be valid.26

In addition, the Court upheld the provision requiring a 24-hour waiting
period between the informed consent and the procedure.27 Conversely,
the spousal notification provision was ruled invalid.28 This provision
required a married woman to give a signed statement that she informed
her spouse of her intent to undergo an abortion prior to the procedure.29
There were numerous findings of fact presented to the Supreme Court
that led to the conclusion that the provision was invalid.30 Even the
limited research presented to the lower court was sufficient to support
the findings of fact.31 The insurmountable issue with this requirement
was that it would effectively deter abortions because the notification
requirement would frequently result in spousal abuse.32 Therefore,
26. Id. The informed consent provision required, at least 24 hours before performing
an abortion, a physician to inform the woman of: the procedure; the health risks; the
probable gestational age of the fetus; and the availability of printed materials published
by the State that describes the fetus, provides information on medical assistance for
childbirth and child support, and lists adoption agencies along with other services that
are alternatives to abortion. Id. at 881. The Court found this provision to be valid and
reasoned that it was a way to ensure that a woman comprehended the full consequences
of her decision. Id. at 882. The state had a legitimate purpose here: it reduced the risk of
electing an abortion only to later discover the womans decision was not fully informed,
and therefore, the woman endures psychological consequences as a result. Id. at 882.
27. Casey, 505 U.S. at 885, 887. The Court reasoned that important decisions, such as
an abortion, would be more informed and properly deliberated upon if they were
preceded by a period of reflection. Id. at 885. This provision was not unreasonable,
especially given the fact that the statute explicitly directed that a doctor provide
information as a background to the decision. Id. The Court continued by recognizing the
fact that this provision may result in increased cost for women who travel from out of
town to have the abortion performed. Id. at 886. Despite this potentially increased cost,
the Court found no undue burden on a womans right to choose. Id.
28. Id. at 895.
29. Id. at 887.
30. Id. at 88889. (These findings of fact included the following: 281. Studies reveal
that family violence occurs in two million families in the United States. This figure,
however, is a conservative one; 282. A wife may not elect to notify her husband of her
intention to have an abortion for a variety of reasons, including the husbands illness,
concern about her own health, the imminent failure of the marriage, or the husbands
absolute opposition to the abortion; 285. Wife-battering or abuse can take on many
physical and psychological forms. The nature and scope of the battering can cover a
broad range of actions and be gruesome and torturous; and 289. Mere notification of
pregnancy is frequently a flashpoint for battering and violence within the family).
31. Id. at 892. The research was considered limited because it was conducted with
samples that were too small to be considered representative. The Court stated that the
District Courts findings reinforce what common sense would suggest. Id.
32. Id. at 893. Should these women become pregnant, they may have very good
reasons for not wishing to inform their husbands of their decision to obtain an abortion.
Many may have justifiable fears of physical abuse, but may be no less fearful of the
consequences of reporting prior abuse.

920

WAYNE LAW REVIEW

[Vol. 60:915

requiring notification to an abused womans husband would present an

undue burden on a womans right to choose.33
D. Abortion Laws in the Okpalobi Decision
In Okpalobi v. Foster, abortion providers brought suit alleging that
the Louisiana statute making abortion providers liable in tort to a woman
obtaining an abortion for any damage incurred by the abortion was an
unconstitutional undue burden on a womans right to choose.34 The
Fifth Circuit agreed and held that this statute constituted an undue
burden.35 The court reasoned that the plain language of the statute refuted
the contention that the purpose of the act was to encourage the physician
to educate a woman of all abortion risks.36 Further, the act undoubtedly
would drive Louisianas qualified and responsible abortion providers out
of business, thereby imposing an undue burden on a womans right to
seek an abortion.37
E. Abortion Laws in the Stenberg Decision
In Stenberg v. Carhart, an abortion provider brought suit challenging
the constitutionality of a Nebraska statute that banned partial birth
abortion.38 The Supreme Court held that the statute was unconstitutional
33. Casey, 505 U.S. at 895.
34. Okpalobi v. Foster, 190 F.3d 337, 361 (5th Cir. 1999), on rehg en banc, 244 F.3d
405 (5th Cir. 2001). The statute stated: [a]ny person who performs an abortion is liable
to the mother of the unborn child for any damage occasioned or precipitated by the
abortion. Id. at 356 (quoting LA. REV. STAT. ANN. 9:2800.12(A) (1999)). Damage is
defined as injuries suffered or damages occasioned by the unborn child or mother.
Okpalobi, 190 F.3d 337 (quoting LA. REV. STAT. ANN. 9:2800.12(B)(12) (1999)).
35. Okpalobi, 190 F.3d at 357.
36. Id. at 356.
37. Id. The evidence illustrated that the plaintiffs in the action provided
approximately 80% of all abortions in Louisiana, and their practices would have to be
discontinued if the act went into effect. Id. at 357. The lower court found that there was
an undue burden because it sets a standard no physician can meet and creates a climate
in which no provider can possibly operate, thereby significantly reducing the number of
abortion providers in Louisiana. Id. See generally Planned Parenthood, Sioux Falls
Clinic v. Miller, 63 F.3d 1452 (8th Cir. 1995) (holding that criminal and civil penalties on
abortions were unconstitutional because they would chill abortion providers willingness
to perform the abortion procedure).
38. Stenberg v. Carhart, 530 U.S. 914 (2000). A partial birth abortion is a type of lateterm abortion that stops a pregnancy by removing an intact fetus from the uterus.
Abortion,
partial
birth,
THEFREEDICTIONARY.COM,
http://medicaldictionary.thefreedictionary.com/partial+birth+abortion (last visited Apr. 12, 2014). The
purpose of a partial birth abortion is to end a pregnancy in the mid to late second
trimester. Id. Typically, this procedure is performed between the 19th and 26th weeks of

2015] AN UNDUE BURDEN ON THE FREEDOM TO CHOOSE

921

and imposed an undue burden because it applied to both the dilation and
evacuation (D&E) procedure and the dilation and extraction (D&X)
procedure.39 This imposed an unconstitutional burden on a womans
right to choose the D&E procedure.40 Even though the statutes aim was
to ban D&X abortion, its language included D&E abortions,41 which are
the most common method of abortion in the second trimester previability.42 Abortion providers using the D&E method would fear
prosecution, conviction, and imprisonment; therefore, this would create
an undue burden on a womans right to choose.43
F. Ultrasound Requirements
Today, the trend throughout the United States is to include an
ultrasound provision in abortion legislation.44 Since the mid-1990s, an
aggregate analysis of U.S. legislation illustrates that many states have
attempted to make an ultrasound a part of the abortion procedure and that
these statutes are prevalent throughout the country.45 Some states have
enacted laws requiring that a woman seeking an abortion receive
information on obtaining an ultrasound, whereas others require that the
woman have an ultrasound prior to the abortion.46 The specifics of the
laws regulating the ultrasound vary from state to state, ranging from
pregnancy. Id. One advantage of this procedure is that the fetus is removed intact. Id.
This allows for a more accurate evaluation and autopsy of the fetus if there was some sort
of fetal abnormality. Id. Another such advantage is that intact removal also has a lower
risk of puncturing the uterus or damaging the cervix throughout the procedure. Id.
Despite this, the procedure is currently illegal in the United States. Id. There was
controversy over this late-term abortion due to the issues in determining the point of
viability. Id. Another controversial aspect of this procedure is that the fetal death does not
take place until after a majority of the fetus has exited the uterus. Id.
39. Stenberg, 530 U.S. at 938. The dilation and evacuation procedure involves
dilating the cervix, removing some fetal tissue using nonvacuum surgical instruments,
and, potentially, the instrumental dismemberment of the fetus (in order to facilitate
evacuation from the uterus). Id. at 925. The dilation and extraction procedure involves
dilating the cervix, instrumental conversion of the fetus to a footling breech, breech
extraction of the body excepting the head, and partial evacuation of the intracranial
contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.
Id. at 928.
40. Id. at 938.
41. Id.
42. Id. at 945.
43. Id. at 94546.
44. See, e.g., MICH. COMP. LAWS ANN. 333.17015 (West 2014); 2012 La. Sess. Law
Serv. 685 (West).
45. State Policies in Brief: Requirements for Ultrasound, GUTTMACHER INST. (May 1,
2014), http://www.guttmacher.org/statecenter/spibs/spib_RFU.pdf.
46. Id.

922

WAYNE LAW REVIEW

[Vol. 60:915

requiring a woman to view the ultrasound image to offering her the

opportunity to see it.47
There are two types of ultrasounds: transvaginal ultrasounds and
abdominal ultrasounds.48 A transvaginal ultrasound requires the
physician to physically insert a probe into the womans vagina.49 In
contrast, an abdominal ultrasound is superficialthe physician merely
applies gel to the womans abdomen and a handheld probe is pressed
against and moved over the abdomen.50 The transvaginal ultrasound is a
physically invasive procedure, whereas the abdominal ultrasound is
not.51
However, recent legislation now effectively mandates that a
transvaginal ultrasound, instead of a mere abdominal ultrasound, be
performed on a woman before the abortion procedure.52 Most women
47. Id. As of March 2014, 12 states require verbal counseling or written materials to
include information on accessing ultrasound services and 23 states regulate the
ultrasound by the abortion provider. Id. Of these 23 states, 3 states mandate that an
abortion provider perform ultrasound [sic] on each women [sic] seeking an abortion and
requires the provider to show and describe the image; 9 states mandate that an abortion
provider perform an ultrasound on each woman seeking an abortion, and require the
provider to offer the woman the opportunity to view the image; 9 states require that a
woman be provided with the opportunity to view an ultrasound image if her provider
performs the procedure as part of the preparation for an abortion; and 5 states require
that a woman be provided with the opportunity to view an ultrasound image. Id.
48. See generally Guy Slowik, What Is an Ultrasound?, EHEALTHMD,
http://ehealthmd.com/content/what-ultrasound (last updated Apr. 17, 2013) (explaining
that an ultrasound is an imaging procedure that utilizes high-frequency sound waves to
examine the internal organs of a womans body, and in this context, the fetus).
49. Transvaginal
Ultrasound,
MEDLINEPLUS,
http://www.nlm.nih.gov/medlineplus/ency/article/003779.htm (last updated July 11,
2012).
50. Abdominal
Ultrasound,
MEDLINEPLUS,
http://www.nlm.nih.gov/medlineplus/ency/article/003777.htm (last updated Nov. 9,
2012).
51. See supra notes 4950 and accompanying text.
52. See, e.g., LA. REV. STAT. ANN. 40:1299.35.2 (2013). The statute requires that an
ultrasound be performed at least 24 hours prior to an abortion and before any anesthesia
or medication in preparation for the abortion is administered. Id. The physician is to
simultaneously display the screen which depicts the active ultrasound images so that the
pregnant woman may view them; and make audible the fetal heartbeat, if present, in a
quality consistent with current medical practice. Id. Further, the physician is to also
[p]rovide a simultaneous and objectively accurate oral explanation of what the
ultrasound is depicting, in a manner understandable to a layperson. Id. This explanation
shall include the presence and location of the fetus (along with the number of unborn
children depicted), the dimensions of the unborn child, and the presence of cardiac
activity if present and viewable. Id. In addition to all of this, the physician must offer the
woman the opportunity to obtain an ultrasound photograph of her unborn child of a
quality consistent with current standard medical practice that accurately portrays, to the
extent feasible, the body of the unborn child including limbs, if present and viewable. Id.

2015] AN UNDUE BURDEN ON THE FREEDOM TO CHOOSE

923

undergo an abortion within 12 weeks of the onset of pregnancy.53 If the

woman has been pregnant for less than eight weeks, a transvaginal
ultrasound is generally required in order to see or hear anything.54 Since
some statutes now require that the abortion provider make the fetal
heartbeat audible, this effectively necessitates a transvaginal ultrasound
for many abortions that occur in the first trimester.55
The substantial use of ultrasound requirements prior to abortions in
legislation throughout the United States,56 combined with the
forthcoming trend requiring a transvaginal ultrasound over a lessinvasive abdominal ultrasound,57 illustrates the importance of evaluating
whether these provisions constitute an undue burden on a womans right
to choose. The Court in Casey set forth the undue burden test and
demonstrated examples of valid or invalid state regulation.58 These
examples constitute a basis for evaluating future regulations and
demonstrate, in combination with additional data, why a provision
effectively requiring a transvaginal ultrasound is also an infringement on
a womans constitutional rights.
III. ANALYSIS
A state abortion regulation that hinder[s] rather than inform[s] [a]
womans free choice is unconstitutional.59 The ultrasound requirement
is just that: it hinders a pregnant womans right to choose rather than
informing the woman about that right.60 Ultrasound provisions are
disguised as providing informed consent to a pregnant woman prior to
abortion, but in truth, they require an invasive medical procedure before
a woman is able to have an abortion.61 Scholars criticize these laws,
arguing their purpose is to arouse a womans feelings of sin, guilt and
shame, alongside an unrealistic depiction of how much easier life as a

53. Kate Sheppard, Mandatory Transvaginal Ultrasounds: Coming Soon to a State

Near
You,
MOTHERJONES
(Mar.
5,
2012,
6:16
PM),
http://www.motherjones.com/mojo/2012/03/transvaginal-ultrasounds-coming-soon-statenear-you.
54. Id.
55. Julie Rovner, State Legislatures Stay Busy on Abortion Laws, NPR (July 12,
2012,
3:57
PM),
http://www.npr.org/blogs/health/2012/07/12/156683431/statelegislatures-stay-busy-on-abortion-laws.
56. See supra notes 4447 and accompanying text.
57. See supra notes 5255 and accompanying text.
58. See supra Part II.C.
59. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877 (1992).
60. Id.
61. Weber, supra note 12, at 367.

924

WAYNE LAW REVIEW

[Vol. 60:915

single mother would be.62 Cloaked as a law ensuring informed consent,

the legislature is regulating abortion via government-approved
psychological coercion.63 What is occurring is not informed consent
pertaining to the medical procedure, but rather, informed consent with
the purpose of encouraging a statutorily required moral standard.64
Laws requiring ultrasounds before an abortion are intended to force
pregnant women to feel guilty for their choice.65
There are three primary reasons why a requirement to undergo an
ultrasound, and specifically a transvaginal ultrasound, prior to an
abortion should be deemed unconstitutional. First, transvaginal
ultrasounds are an invasion into a womans body that constitutes an
undue burden on a womans rights to choose.66 Second, transvaginal
ultrasounds create an additional cost for the abortion procedure that
becomes an undue burden on a womans right to choose.67 Finally,
transvaginal ultrasounds could result in psychological harm that would
hinder a pregnant womans ability to make a rational decision, and
therefore become an undue burden on a womans freedom of choice
prior to viability.68 An undue burden should not be limited to
discouraging women, but also should include causing harm and forcing
them to pay the price for exercising their fundamental right to choose.69
Going beyond mere discouragement and persuasion with informative and
helpful information, ultrasound provisions actively discourage women at
their own expense.70
A. Transvaginal Ultrasounds Are an Invasion into a Womans Body
Justice Cardozo, in Schloendorff v. Society of New York Hospital,
said that [e]very human being of adult years and sound mind has a right
to determine what shall be done with his own body.71 The Supreme
62. Id. at 368.
63. Id.
64. Id. (Rather than explaining the medical risks involved in the abortion procedure,
physicians in the case of the ultrasound requirement are forced to show the woman an
ultrasound image of the fetus while describing its physical and anatomical
characteristics.).
65. Valpey, supra note 13, at 2.
66. See supra notes 4950 and accompanying text.
67. Weber, supra note 12, at 371.
68. Valpey, supra note 13, at 2.
69. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877 (1992).
70. Weber, supra note 12, at 37071.
71. 105 N.E. 92, 93 (N.Y. 1914), abrogated by Bing v. Thunig, 143 N.E.2d 3 (N.Y.
1957); see also Union Pac. R.R. Co. v. Botsford, 141 U.S. 250, 251 (1891) (stating that
[n]o right is held more sacred, or is more carefully guarded by the common law, than the

2015] AN UNDUE BURDEN ON THE FREEDOM TO CHOOSE

925

Court found a Fourteenth Amendment liberty right as a basis for the right
to refuse medical care.72 The Court in Cruzan v. Director, Missouri
Department of Health held that, in general, a competent person has the
constitutional right to refuse medical care if they have the ability to
make an informed and voluntary choice.73
In upholding an ultrasound requirement prior to abortion, the Fifth
Circuit in Texas Medical Providers Performing Abortion Servicers v.
Lakey wrote that an ultrasound is viewed as medically necessary for
the mother and fetus.74 This is simply not true; conducting an ultrasound
prior to an abortion is not medically necessary.75 Knowing that this
procedure is not always medically necessary, the Food and Drug
Administration warned against the use of ultrasounds since their effects
are not completely understood.76 Even though ultrasounds are generally
safe when conducted at low levels, an ultrasound can have negative
effects on human tissue.77 Therefore, because effects of an ultrasound on
a fetus are not completely known, there is a possibility of harm to the
fetus.78 Some doctors believe that the high-frequency sound waves of an
ultrasound may affect the development of the fetus.79
Legislation now being passed effectively mandates a transvaginal
ultrasound prior to the abortion procedure, thus enlarging this issue.80
The idea of requiring a transvaginal ultrasound over an abdominal
ultrasound arose when doctors claimed the heartbeat would not be
detected during the first trimester with only an abdominal ultrasound.81
This procedure is admittedly more invasive than an abdominal
right of every individual to the possession and control of his own person, free from all
restraint or interference of others).
72. See, e.g., Washington v. Harper, 494 U.S. 210, 22122 (1990); Cruzan v. Dir.,
Mo. Dept of Health, 497 U.S. 261, 278 (1990).
73. Cruzan, 497 U.S. at 27980.
74. 667 F.3d 570, 579 (5th Cir. 2012).
75. Weber, supra note 12, at 368 (noting that ultrasounds are normally used to
determine the gestational age of the fetus and to identify possible issues with the
pregnancy).
76. Carol Rados, FDA Cautions Against Ultrasound Keepsake Images, U.S. FOOD
AND DRUG ADMIN. (Jan.-Feb. 2004), http://www.sdms.org/pdf/FDAKeepsake.pdf ([T]he
medical community is discouraging the use of ultrasound unless it is medically
necessary.).
77. Id.
78. Id.
79. Id.
80. See, e.g., LA. REV. STAT. ANN. 40:1299.35.2 (2014).
81. Ken Shepherd, WAMUs Michael Pope Furthers Leftist Myth Rather than Fact in
Story on Va. Ultrasound Requirement, NEWSBUSTERS (Jan. 17, 2013, 7:21 PM),
http://newsbusters.org/blogs/ken-shepherd/2013/01/17/wamus-michael-pope-furthersleftist-myth-rather-fact-story-va-ultrasou.

926

WAYNE LAW REVIEW

[Vol. 60:915

ultrasound: a transvaginal ultrasound entails physical insertion of a probe

inside the pregnant woman, whereas the abdominal ultrasound is purely
superficial and conducted upon the womans abdomen.82 Women are
now being forced to undergo two invasive procedures rather than just
one (the abortion).83 Further, while there is anesthesia given prior to
abortion procedures, there is no such sedation prior to the invasive
ultrasounds.84 Therefore, the variation between the two ultrasounds
creates a large difference when evaluating the constitutionality and
public response of requiring one procedure or the other.85 For example,
legislation recently passed in Virginia requires an abdominal ultrasound
prior to an abortion.86 Initially, the legislation explicitly required a
transvaginal ultrasound, but it was later amended to require only the lessinvasive procedure because the provision [was] harshly criticized by
womens rights groups.87 The vaginal probe proposal sparked an
outcry when first proposed.88 Therefore, the Virginia Senate only
approved the weaker ultrasound law requiring an abdominal
ultrasound.89 These ultrasound laws are an invasion into a womans body,
and consequently, constitute an undue burden on a womans right to
choose.90
B. Transvaginal Ultrasounds Create an Additional Cost for the Abortion
Procedure
The Casey Court noted that, at some point, state regulations of
abortion that increase the procedures cost[s] could become a
substantial obstacle to a womans freedom of choice, and therefore,
constitute an undue burden.91 The court in Carhart v. Stenberg also noted
certain requirements constitute an undue burden, including using an

82. See supra notes 4950 and accompanying text.

83. Id.
84. First Trimester Abortion: Vacuum Aspiration (4.612 Weeks), FAMILY
PLANNING
SPECIALISTS
MED.
GROUP,
http://www.familyplanningspecialists.com/services/first-trimester-abortion.html
(last
visited Mar. 12, 2014).
85. See, e.g., Shepherd, supra note 81.
86. Id.
87. Id.
88. Id.
89. Id.
90. See generally Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 92628
(1992).
91. Id. at 901.

2015] AN UNDUE BURDEN ON THE FREEDOM TO CHOOSE

927

abortion method that creates significant emotional and physical pain

and economic cost.92
One might argue that the cost of an ultrasound is not high enough to
constitute an undue burden, but the costs go far beyond the price of the
procedure.93 In Tucson Womans Clinic v. Eden, the court found that
there was a material issue of fact regarding whether or not the increased
costs imposed by the regulations were to be considered an undue
burden.94 The court noted that an increase in abortion costs that decreases
the supply of providers and clinics could constitute an undue burden.95
Evidence and testimony demonstrated that abortion providers would
incur tens of thousands of dollars in expenses in order to comply with
the transvaginal ultrasound regulation.96 The estimates included costs
such as: the camera for the ultrasound machine, the time spent complying
with the law, hiring nurses instead of medical assistants, and paying
employees overtime.97 There was even testimony that a provider may
have to stop practicing altogether, and that a Planned Parenthood clinic
would suffer about a two-thirds drop in its physicians.98 This delay deters
abortions and increases health risks to pregnant women.99
Looking specifically toward the increased costs to the pregnant
woman, calculations illustrate that an ultrasound requirement would
more than double the cost of an abortion.100 A first trimester abortion in
the United States is approximately $350 to $500.101 In Oklahoma, for
92. Carhart v. Stenberg, 972 F. Supp. 507, 529 n.37 (D. Neb. 1997).
93. On average, the cost of an abdominal ultrasound varies greatly throughout the
United States. See Abdominal Ultrasound Procedure & Cost Information, NEW CHOICE
HEALTH
http://www.newchoicehealth.com/Directory/Procedure/59/Abdominal%20Ultrasound
(last visited Mar. 3, 2013). The national minimum price of an abdominal ultrasound is
$290 in Wapakoneta, Ohio. Id. The national maximum price of an abdominal ultrasound
is $1,700 in Bishop, California. Id. Overall, the national average price of an abdominal
ultrasound is $390. Id. These prices are much lower than the cost of a transvaginal
ultrasound. See Transvaginal Ultrasound Procedure & Cost Information, NEW CHOICE
HEALTH
http://www.newchoicehealth.com/Directory/Procedure/60/Transvaginal%20Ultrasound
(last visited Mar. 3, 2013). The national minimum price of a transvaginal ultrasound is
$390 in Harriman, Tennessee. Id. The national maximum price of a transvaginal
ultrasound is $2,775 in Bennettsville, South Carolina. Id. The overall national average
price of a transvaginal ultrasound is $525. Id.
94. 379 F.3d 531 (9th Cir. 2004).
95. Id. at 541.
96. Id. at 542.
97. Id.
98. Id.
99. Id.
100. Weber, supra note 12, at 371.
101. Id.

928

WAYNE LAW REVIEW

[Vol. 60:915

example, an ultrasound costs about $200-300.102 Therefore, requiring an

ultrasound would raise the price between 47% and 70%.103 This
essentially requires that every woman pay around 50% more for an
unnecessary medical test.104 Clearly, this requirement would significantly
raise costs to obtain an abortion.105
C. Transvaginal Ultrasounds Could Result in Psychological Harm
Requiring an ultrasound may constitute an undue burden because it
could impose a substantial psychological burden on the woman through
the pressure of previewing the physical impact of an abortion.106 Often,
pregnant women carefully consider the abortion decision and weigh
factors such as responsibility to others, health issues of the fetus,
financial implications, and relationship problems.107
Therefore, having to undergo an ultrasound may be a mechanism by
which the state forces itself into a womans decision.108 Requiring an
ultrasound when a woman would not normally choose to have one
performed is probably an actual restriction to a large fraction of those
women because they would choose not to have an ultrasound,
presumably for personal reasons that should be beyond the states
purview, whether it be psychological harm or otherwise.109 Individuals
who work with pregnant women considering an abortion indicate that
many of these women choose to bring the child to term after viewing an
ultrasound image of the fetus.110
102. Id.
103. Id.
104. Id.
105. Many restrictions are particularly burdensome for women without a large income.
Abrams, supra note 4, at 335. These women potentially have only government-funded
health care that frequently excludes abortions. Id. Additional costs that burden these
women may include paying for resources that will enable them to travel in order to obtain
an abortion as well as the cost for leave for some statutorily-required waiting period
before they can go forth with the procedure. Id. Abortion is devolving into a procedure
that is available only for upper class citizens. Id. Courts have ignored the economic
disadvantages and access disparities imposed on low-income women. Id.
106. Jeffrey Roseberry, Undue Burden and the Law of Abortion in Arizona, 44 ARIZ.
ST. L.J. 391, 400 (2012).
107. Rachel Benson Gold, All Thats Old is New Again: The Long Campaign to
Persuade Women to Forego Abortion, 24 GUTTMACHER POLY REV. 19, 22 (2009),
available at http://www.guttmacher.org/pubs/gpr/12/2/gpr120219.pdf.
108. Roseberry, supra note 106, at 400 (citing Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833, 919 (1992) (Stevens, J., concurring in part and dissenting in part)).
109. Id.
110. Pre-abortion Ultrasound Requirement, RIGHT TO LIFE OF MICHIGAN,
http://www.rtl.org/legislation/UltrasoundViewingOption.html (last visited May 11, 2014)

2015] AN UNDUE BURDEN ON THE FREEDOM TO CHOOSE

929

In Lakey, the Fifth Circuit held that an ultrasound requirement prior

to an abortion was constitutional because the required disclosures of a
sonogram, the fetal heartbeat, and their medical descriptions are the
epitome of truthful, non-misleading information.111 The court claimed
that pre-abortion ultrasound disclosures were not different from the
disclosures upheld in Casey, but conceded that the ultrasound disclosures
were more graphic and scientifically up-to-date than the required
disclosures of probable fetal gestational age and printed material
showing general prenatal development stages upheld in Casey.112 This
concession by the court illustrates the notable difference between the
general Casey disclosures and the personal and specific disclosures
provided by a required transvaginal ultrasound.113
Protection encompasses both the abortion decision and the
deliberative path a woman takes to reach that decision.114 A mandatory
ultrasound is an unwarranted intrusion into a womans protected
choice.115 First, just by having an ultrasound, a woman is categorized as a
mother and must proceed against this status.116 Second, the pregnant
woman is producing the ultrasound information from her own body.117
This information is intended to persuade the woman against having the
abortion; the ultrasound image is a statement about the meaning of
human life.118 The effect of requiring ultrasound before an abortion is
to do everything possible to shift the womans thoughts, her experience,
and her expectations from someone who has decided not to remain
pregnant into the position of an ordinary mother-to-be.119 Now, the
woman is burdened by new and large sets of expectations.120

(Armed with this knowledge [that women choose to bring their child to term after
viewing an ultrasound image], Michigan legislators enacted the Ultrasound Viewing
Option Law in 2006.).
111. Texas Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 577
78 (5th Cir. 2012).
112. Id. at 578.
113. Id.
114. Carol Sanger, Seeing and Believing: Mandatory Ultrasound and the Path to a
Protected Choice, 56 UCLA L. REV. 351, 351 (2008).
115. Id.
116. Id.
117. Id.
118. Id.
119. Id. at 38283.
120. Sanger, supra note 114, at 383. Some of these expectations include legal
regulation (for example, not drinking or smoking during pregnancy), cultural
expectations, and social expectations of the mother to put the good of the child over all
else. Id.

930

WAYNE LAW REVIEW

[Vol. 60:915

Pregnant woman have been known to undergo mental torment after

aborting their child.121 Ultrasound provisions completely disregard the
mental health of a pregnant woman who is subjected to undergo an
ultrasound before proceeding with an abortion.122 These women are
forced to view the ultrasound image while listening to the physician
explain the fetuss heartbeat, limbs, and age.123 At this point, the woman
will begin to perceive the fetus as a baby before proceeding with the
abortion.124 This will undoubtedly result in greater psychological harm
after the abortion than if the ultrasound was not required.125
Similarly, ultrasound provisions also impose psychological harm
upon a woman who, after viewing the ultrasound and perceiving the fetus
as her baby, decides against an abortion.126 While in this heightened
emotional state, it is likely that a woman might decide against the
abortion and choose to raise the child.127 Ultrasounds performed almost
immediately before the abortion procedures take advantage of a womans
heightened emotional state prior to the procedure.128 Such a condition
may result in an irrational decision to keep the child despite the fact that
it may not be in the womans best interest.129 Thus, these provisions
result in psychological harm and rash decision-making.130
Neither the scientific evidence to date nor the observable reality of
33 years of legal abortion in the United States comports with the idea
that having an abortion is any more dangerous to a womans long-term
mental health than delivering and parenting a child that she did not
intend to have.131 The Court in Roe v. Wade recognized the harm that
would result from a woman who decides against abortion and keeps the
child she did not intend to have.132 There is also the distress, for all
concerned, associated with the unwanted child, and there is the problem
121. Nick Hopkins et al., Constructing Womens Psychological Health in AntiAbortion Rhetoric, 44 THE SOCIOLOGICAL REV. 539, 544 (1996) (explaining PostAbortion Syndrome that has side-effects similar to Post-Traumatic Stress Disorder such
as flashbacks, nightmares, and uncontrollable grief).
122. Id. at 549.
123. Id. at 553.
124. Id. at 549.
125. Id.
126. Valpey, supra note 13, at 2.
127. Weber, supra note 12, at 369.
128. Hopkins et al., supra note 121, at 55253.
129. Roe v. Wade, 410 U.S. 113, 153 (1973).
130. See id.
131. Gonzales v. Carhart, 550 U.S. 124, 183 n.7 (2007) (Ginsburg, Stevens, Souter &
Breyer, JJ., dissenting) (citing Susan A. Cohen, Abortion and Mental Health: Myths and
Realities, 9 GUTTMACHER POLY REV. 8 (2006)).
132. Roe, 410 U.S. at 153.

2015] AN UNDUE BURDEN ON THE FREEDOM TO CHOOSE

931

of bringing a child into a family already unable, psychologically and

otherwise, to care for it.133 Research illustrates that the psychological
harm of raising a child a woman did not intend to have (or putting the
child up for adoption) is greater than the psychological harm resulting
from an abortion.134
IV. CONCLUSION
The trend towards effectively requiring that a woman endure a
transvaginal ultrasound before electing to proceed with an abortion
constitutes an undue burden on a womans freedom of choice granted to
her pursuant to the Fourteenth Amendment of the U.S. Constitution.135
The legislation requires a medically unnecessary procedure.136 In contrast
to a mere abdominal ultrasound, the transvaginal ultrasound procedure is
a physically intrusive, rather than superficial, procedure.137 Further, this
kind of legislation imposes additional costs on the woman attempting to
proceed with an abortion,138 hindering the womans ability to go forth
with the procedure if she is financially unable to afford it.139 In addition,
it also imposes costs upon the doctors performing the procedure.140 It
forces them to purchase expensive medical equipment for the procedure,
and it takes up the paid time of their staff and personnel,141 resulting in
fewer available doctors to perform the abortion. Additional medical costs
are another burden set in the way of the woman attempting to receive an
abortion.142 Finally, there is evidence that a procedure such as a
transvaginal ultrasound will place psychological harm upon the woman
who has weighed her options and found it in the best interest of all
parties to go forth with the abortion.143 These three attributes of the
133.
134.
135.
136.
137.

Id.
Cohen, supra note 131, at 8.
Weber, supra note 12, at 38081.
Id. at 368.
Pelvic Ultrasound and Transvaginal Ultrasound, HARVARD HEALTH
PUBLICATIONS,
http://www.health.harvard.edu/diagnostic-tests/pelvic-ultrasound-andtransvaginal-ultrasound.htm (last visited Apr. 12, 2014).
138. Weber, supra note 12, at 371.
139. Id.
140. Tucson Womans Clinic v. Eden, 379 F.3d 531, 542 (9th Cir. 2004).
141. Id.
142. Id. at 541.
143. Hopkins et al., supra note 121, at 549. The stigma attached to an abortion reflects
both social and political efforts to shame the woman who chooses to have an abortion.
Abrams, supra note 4, at 334. Data suggests that there is an underreporting of abortions
and fear of social ostracism. Id. Shame was associated with abortion both prior to Roe v.
Wade, and it remains today. Id. Shaming today is an overt political goal with the passage
of highly intrusive laws that mandate physically invasive ultrasounds prior to an abortion

932

WAYNE LAW REVIEW

[Vol. 60:915

forthcoming legislation combine to constitute an undue burden upon a

womans freedom of choice that is unconstitutional under the laws of our
nation.144 These laws allow governmental intrusion into the
constitutionally protected choice of a woman, thereby hindering a
womans ability to determine the course of her life.145

or question a womans judgment by forcing her to listen to a demeaning state-designed

lecture on why she should reconsider her decision. Id.
144. Weber, supra note 12, at 383.
145. Id.