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Per Curiam. On December 17, 1980, the Workers’ Compensation Appeal Board (WCAB) issued an order affirming a hearing referee’s denial of compensation benefits to plaintiff. This Court denied plaintiff’s application for leave to appeal, but the Supreme Court remanded for consideration as on leave granted, 417 Mich 940 (1983). Plaintiff was employed as a fireman with defendant City of Hazel Park. On October 14, 1973, plaintiff suffered an acute myocardial infarction while on a fishing trip. His last day of work had been October 12, 1973. In the wake of his heart attack, plaintiff applied for a duty-related disability pension; his request was rejected by defendant city’s pension board on June 24, 1974. Plaintiff subsequently was granted a nonduty disability pension. Plaintiff brought a workers’ compensation claim, relying in part upon a statutory presumption set forth in MCL 418.405(2); MSA 17.237(405X2), which deems respiratory or heart diseases incurred by a policeman or fireman while in active service to have arisen out of the course of employment in the absence of evidence to the contrary. Plaintiff also claimed below that his nonduty pension did not constitute "like benefits”, such that he would be compelled to elect between the pension and workers’ compensation pursuant to MCL 418.161; MSA 17.237(161). Affirming the denial of benefits by the hearing referee, the WCAB ruled that plaintiff was not entitled to the statutory presumption because he had qualified for a pension from the city. MCL 418.405(3); MSA 17.237(405X3). In the absence of that presumption, and upon consideration of the proofs submitted, the WCAB concluded that plaintiff’s heart attack was not related to his employment and was hence noncompensable. Having disposed of the case in this fashion, the board did not reach the question of whether the nonduty pension constituted "like benefits” under the election provision of MCL 418.161; MSA 17.237(161). At issue in this appeal is the proper interpretation of MCL 418.405; MSA 17.237(405), which provides: "(1) In the case of a member of a full paid fire department of an airport run by a county road commission in counties of 1,000,000 population or more or by a state university or college or of a full paid fire or police department of a city, township, or incorporated village employed and compensated upon a full-time basis, a county sheriff and the deputies of the county sheriff, members of the state police, conservation officers, and motor carrier inspectors of the Michigan public service commission, 'personal injury’ shall be construed to include respiratory and heart diseases or illnesses resulting therefrom which develop or manifest themsleves during a period while the member of the department is in the active service of the department and result from the performance of duties for the department. "(2) Such respiratory and heart diseases or illnesses resulting therefrom are deemed to arise out of and in the course of employment in the absence of evidence to the contrary. "(3) As a condition precedent to filing an application for benefits, the claimant, if he or she is one of those enumerated in subsection (1), shall first make application for, and do all things necessary to qualify for any pension beneñts which he or she, or his or her decedent, may be entitled to. If a final determination is made that pension beneñts shall not be awarded, then the presumption of'personal injury’ as provided in this section shall apply. The employer or employee may request 2 copies of the determination denying pension benefits, 1 copy of which may be filed with the bureau.” (Emphasis supplied.) Defendant maintains that the phrase "any pension benefits” in subsection (3) of the statute means precisely what it says; if this is so the WCAB properly declined to apply the subsection (2) presumption based upon plaintiffs nonduty disability pension. Plaintiff contends that the phrase "any pension benefits” must be construed restrictively in light of the following provision, which is found in § 161, governing employees covered by the worker’s compensation act: "Police officers, fire fighters, or employees of the police or fire departments, or their dependents, in municipalities or villages of this state having charter provisions prescribing like benefits, may waive the provisions of this act and accept like benefits that are prescribed in the charter but shall not be entitled to like benefits from both their local charter and this act.” If §§ 405 and 161 are considered together, plaintiff argues, the subsection 405(2) presumption would be deemed operative unless the claimant applied for and received like benefits prescribed by charter. The fundamental goal of statutory construction is to identify and give effect to the intent of the Legislature. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich 184; 253 NW2d 646 (1977). The language of the statute is the best source for ascertaining the Legislature’s intent. Espinoza v Bowerman-Halifax Funeral Home, 121 Mich App 432, 436; 328 NW2d 657 (1982), lv den 417 Mich 1017 (1983). Thus, if a statute is unambiguous on its face it is to be enforced as written, and courts should avoid further interpretation or construction of its terms. Dussia v Monroe County Employees Retirement System, 386 Mich 244, 249; 191 NW2d 307 (1971); Detroit v Redford Twp, 253 Mich 453; 235 NW 217 (1931). The language of subsection 405(3), standing alone, is completely unambiguous. It plainly requires the claimant to apply for "any pension benefits” which the claimant may be entitled to, and conditions operation of the presumption upon final determination that such benefits are not to be awarded. However, the rule that facially unambiguous passages of a statute are to be enforced without further inquiry is not absolute. Because legislative intent has. primacy, the spirit and purpose of the statute should prevail over its strict letter. Nash v Detroit Automobile Inter-Ins Exchange, 120 Mich App 568, 571; 327 NW2d 521 (1982), lv den 417 Mich 1088 (1983). In this case we discern a conflict between the intent of § 405 and the facially unambiguous language of subsection 405(3). The purpose of MCL 418.405; MSA 17.237(405) was set forth by this Court in Schave v Dep’t of State Police, 58 Mich App 178, 184; 227 NW2d 278 (1975), lv den 394 Mich 765 (1975): "There is little doubt that the Legislature, in enacting this statute, made the determination that policemen and firemen were particularly vulnerable to respiratory and heart diseases, and that medical learning was insufficient to ascribe causes to these diseases. The obvious legislative intent was to afford compensation to policemen and firemen suffering from respiratory and heart diseases in that very limited situation where no doctor was able to diagnose etiology.” There is no doubt that subsection 405(3) imposes some limit upon the operation of the work-related disability presumption. However, a literal reading of this subsection would deny the presumption to a successful applicant for any pension benefit, including presumably a nondisability-related retirement pension, regardless of the adequacy or legal enforceability of the benefits. We do not believe that the purpose of the presumption is compatible with such a broad restriction upon its operation. In concluding that the phrase "any pension benefits” should be narrowly defined to effectuate the statutory purpose, we are influenced by the accepted notion that the WDCA is remedial in nature and should be construed in a liberal and humanitarian manner in favor of the employee. Bower v Whitehall Leather Co, 412 Mich 172, 191; 312 NW2d 640 (1981); Fuchs v General Motors Corp, 118 Mich App 547; 325 NW2d 489 (1982), lv den 417 Mich 1077 (1983). In determining the precise meaning of the phrase "any pension benefits” we look first to the purpose of the subsection 405(3) limitation provision. This Court has previously determined that the subsection was intended to prevent the recovery of both disability pension and workers’ compensation benefits for the same disability. Teddy v Dep’t of State Police, 102 Mich App 412, 419; 301 NW2d 876 (1980); Schave, supra, p 183. This leads us to a comparative consideration of the benefits election provision of MCL 418.161; MSA 17.237(161), because that provision has a similar purpose. At this point in our analysis, another rule of statutory construction comes into play. Statutes must be read in their entirety and, if possible, all sections are to be harmonized to create a consistent whole. Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956); Bannan v Saginaw, 120 Mich App 307; 328 NW2d 35 (1982). Significantly, the § 161 election provision is quite narrow; it merely provides that policemen and fire fighters may not receive both workers’ compensation benefits and "like benefits” from a charter- based pension program. This means that such an employee may collect both compensation benefits and dissimilar pension benefits for the same disability. Teddy, supra. Because the § 161 election provision and subsection 405(3) both concern double recovery of benefits by police officers and fire fighters, and hence are in pari materia, we construe them together. We believe the two provisions may best be harmonzied by construing the phrase "any pension benefits” in subsection 405(3) as the equivalent of "like benefits” as that term is used in § 161. Since the WCAB did not reach the question of whether plaintiffs nonduty disability pension constituted "like benefits”, a remand for such determination would normally be in order. See MacKay v Port Huron, 288 Mich 129; 284 NW 671 (1939). In this case, however, we may decide that plaintiffs benefits were not "like benefits” as a matter of law because they were not provided by charter. We agree with the opinion of Justice Williams in Vasser v Muskegon, 415 Mich 308; 329 NW2d 690 (1982), that pension benefits must be charter-based in order to qualify as "like benefits” as that term is used in MCL 418.161; MSA 17.237(161). See also Bannan, supra, p 322, and p 327 (Martin, J., concurring). Since plaintiff did not qualify for like benefits, he should have been afforded the presumption provided in MCL 418.405; MSA 17.237(405). We remand to the WCAB for a new hearing at which the presumption shall be applied. Reversed. No costs.
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Per Curiam. In Docket No. 161938, defendant appeals as of right an order of the circuit court revérsing its decision to deny plaintiffs’ request for a variance. We reverse this order. In Docket No. 161939, nine of plaintiffs’ neighbors appeal as of right an order of the circuit court denying their motion to intervene in the case, and plaintiffs appeal an order denying their motion for costs under MCR 7.101(P). We affirm both of these orders. Plaintiffs sought to enlarge their house in the city of Grosse Pointe Farms. Although the house was built in 1861, the surrounding neighborhood consists of homes built after World War II. In November 1991, plaintiffs applied for a zoning variance to expand their house from 1300 square feet to 2850 square feet. Plaintiffs desired the expansion to meet the special needs of their daughter, a victim of cerebral palsy. A variance was necessary because plaintiffs’ house violated the twenty-five-foot front setback requirement and, therefore, constituted a nonconforming structure. The house also deviated slightly from the six-foot side setback requirement; however, this was deemed a "de minimus” deviation, requiring no variance._ Plaintiffs’ proposal consisted of a substantial upward and outward expansion of the rear of the house and included not only a larger downstairs bathroom and bedroom for their daughter but also a family room and an expanded second story with a master bedroom and a storage room with dormers over the garage. Plaintiffs’ plan did not call for any further deviation from the setback requirements. Nor did it violate any other zoning requirements. Defendant conceded that strict application of the zoning ordinance would result in practical difficulty for plaintiffs because of their daughter’s needs. In December 1991, defendant held a public hearing on plaintiffs’ request for a variance. At the hearing, defendant suggested that plaintiffs rework their plans to make them more amenable to their neighbors. Plaintiffs subsequently revised their plans by lowering the roof and reducing the area of the addition slightly. On January 27, 1992, defendant held a second public hearing. At the hearing, the following evidence was presented: a letter from a real estate broker stating that the proposed alterations would have, if anything, only a positive effect on property values; a letter from the president of the Grosse Pointe Historical Society endorsing plaintiffs’ planned renovations; letters from ten neighbors in support of plaintiffs’ enlargement; and letters from ten other neighbors in opposition to the enlargement. Five of the neighbors in opposition reiterated their opinions in person at the hearing. At the conclusion of the hearing, defendant denied the variance. On February 26, 1992, plaintiffs appealed defendant’s decision to the circuit court. In June 1992, the parties stipulated a "Conditional Dismissal Without Prejudice With Right Of Reinstatement” so that the parties could conduct settlement negotiations. In October 1992, plaintiffs submitted revised plans, moving the location of the garage forward to accommodate one of their neighbors. However, at a subsequent hearing that same month, several other neighbors indicated that this modification made the proposed expansion even more offensive to them. Again, defendant denied the variance. In November 1992, plaintiffs reinstated their appeal. The circuit court reversed defendant’s decision and granted the variance. Defendant filed a motion for reconsideration, and nine of plaintiffs’ neighbors filed a motion to intervene. Both motions were denied in February 1993. Defendant and plaintiffs’ neighbors subsequently filed separate claims of appeals, which were consolidated in May 1993. In Docket No. 161938, defendant first challenges the circuit court’s subject-matter jurisdiction. It argues that an appeal of right to the circuit court was not available to plaintiffs because they filed their claim of appeal on February 26, 1992, more than twenty-one days after defendant denied their request for a variance at its January 27, 1992, meeting. See MCR 7.101(B)(1). But defendant did not certify the minutes of its January 27, 1992, meeting until February 25, 1992. The Supreme Court has held that the time period for filing a claim of appeal begins to run on the date of actual entry of an order, General Electric Credit Corp v Northcoast Marine, Inc, 402 Mich 297, 300; 262 NW2d 660 (1978), and MCR 2.602(A) provides that the "date of signing of an order or judgment is the date of entry.” This Court has held that an order or judgment does not become effective until reduced to written' form. Stackhouse v Stackhouse, 193 Mich App 437, 439-440; 484 NW2d 723 (1992). These cases evidence an emphasis on the date of formal entry of the order or judgment appealed from. Although the issue has not yet been addressed in the context of zoning appeals, we believe that the date of certification of the minutes from the January 27, 1992, meeting most appropriately serves as the date of entry of the order or judgment appealed from for purposes of MCR 7.101(B)(1) and MCR 2.602(A). Accordingly, the filing date of plaintiffs’ claim of appeal fell within the twenty-one-day filing périod prescribed in MCR 7.101(B)(1) and the appeal was timely. Defendant also argues that the circuit court erred in considering the October 1992, hearing as part of the reinstated appeal from the earlier decision of January 27, 1992. However, defendant cites no authority in support of its position. An appellate court will not search for authority to sustain or reject a party’s position. Patterson v Allegan Co Sheriff, 199 Mich App 638, 640; 502 NW2d 368 (1993). Accordingly, we decline to exclude consideration of the later hearing. Defendant next argues that the circuit court erred in concluding that defendant’s decision was not based on competent, material, and substantial evidence, as required under MCL 125.585(11); MSA 5.2935(11). We agree. In applying the standard of review under MCL 125.585(11); MSA 5.2935(11), a. reviewing court "must give due deference to the agency’s regulatory expertise and may not 'invade the province of exclusive administrative fact finding by displacing an agency’s choice between two reasonably differing views.’ ” Gordon v Bloomfield Hills, 207 Mich App 231, 232; 523 NW2d 806 (1994), quoting Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974). The Grosse Pointe Farms Zoning Ordinance, art XVII, § 1702 provides for the issuance of a variance upon the following conditions: 1. The variance is in harmony with and serves the intent and purpose of this Ordinance after considering: A. The extent of the variance in relation to the requirement; B. The effect, if the variance is allowed, of the increased population density produced on available governmental facilities and on the character of the district; C. Whether a proposed building is in harmony with the predominant type of building in the district in size, character, location and intended use. 2. The variance will result in substantial justice being done, considering the public benefits intended to be secured by this Ordinance, the hardships or difficulties suffered if a variance is not granted, and whether the hardships can be obviated by some method other than a variance. 3. The variance will not substantially interfere with or injure the rights of persons whose property is affected by the proposed variance. At issue is defendant’s finding that the variance would interfere with the rights of plaintiffs’ neighbors and that its size would not be harmonious with the intent or purpose of the ordinance. Although defendant found that plaintiffs had demonstrated hardship, it also found that their hardship could have been alleviated by a smaller addition. The circuit court found little or no support for defendant’s position. Specifically, it found a lack of evidence regarding (1) plaintiffs’ lot size compared with other lots in the neighborhood, (2) the lot coverage ratios among homes in the area, (3) the height of homes in the area, or (4) the square footage of homes in the area. The circuit court also noted that the only evidence regarding whether plaintiffs’ plans were in harmony with surrounding buildings — namely, the evaluation of the historical society — was favorable to plaintiffs. We believe the circuit court afforded insufficient weight to the expertise of the zoning board in assessing harmony. Our decision in this case is guided by the recent opinion in Gordon, supra, which also concerned a zoning decision predicated on "harmony” principles. In Gordon, this Court noted that "harmony” means more than mere technical compliance with zoning requirements. 207 Mich App 233. That principle is even more applicable where, as here, the existing structure already varies from those minimum requirements. The Gordon Court reversed a circuit court’s determination that a proposed split of a residential lot would not create disharmony in the neighborhood. In doing so, the Court gave due weight to the planning commission’s finding to the contrary and deemed the circuit court’s ruling a substitution of its own judgment for that of the planning commission. Id. While we agree with the circuit court that the evidence in support of defendant’s decision was weak, the denial of plaintiffs’ variance was not without any evidentiary support. Several neighbors spoke out against the addition, essentially saying that it was not harmonious with the surrounding homes. Further, defendant is quite familiar with the neighborhood and its members inspected the area in person after receiving the proposed plans. Although defendant failed to rely on measurements of surrounding homes for the purpose of comparison, the plans and drawings made clear to defendant the divergent picture that would have been created by plaintiffs’ proposed addition. The order of the circuit coúrt is reversed. Our holding does not prejudice plaintiffs from submitting another proposal for a smaller addition. In Docket No. 161939, nine of plaintiffs’ neighbors contend that the circuit court erred in denying their motion to intervene. They claim a right of intervention as proper and necessary parties living within three hundred feet of plaintiffs’ property. See MCL 125.591; MSA 5.2941; MCR 2.209(A) (1). However, the motion to intervene was not timely. In fact, it was not filed until after the circuit court issued its decision. Although the neighbors contend that they did not receive notice of plaintiffs’ action, they admit having actual knowledge of it. Under these circumstances, we deem the decision on the motion as lying strictly within the circuit court’s discretion. Here, the neighbors did not demonstrate that their interests were inadequately represented by defendant. Nor did they provide any evidence to show injury in the form of lower property values or otherwise. We find no abuse of discretion by the circuit court. Finally, plaintiffs present their own cross appeal from the circuit court’s denial of their motion for costs against the neighbors under MCR 7.101(P). A trial court’s finding that a claim is frivolous or vexatious is reviewed for clear error. Stablein v Schuster, 183 Mich App 477, 483; 455 NW2d 315 (1990). We do not believe that the circuit court’s findings regarding the frivolous or vexatious nature of the neighbors’ claim were clearly erroneous or that its refusal to award costs was an abuse of discretion. In Docket No. 161938, we reverse the order of the circuit court reversing defendant’s decision to deny plaintiffs’ request for a variance. In Docket No. 161939, we affirm the orders of the circuit court denying appellant neighbors’ motion to intervene and denying plaintiffs’ motion for costs. Defendant’s concession that a "practical difficulty” exists under plaintiffs’ circumstances is limited solely to these proceedings. Usually, the concept of "practical difficulty” in zoning law relates to problems inherent in the property itself, not to the personal conditions of its occupants. See Crawford, Michigan Zoning and Planning (3d ed), § 6.03, pp 164-165.
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Beasley, P.J. Defendant, Ozell Washington, pled guilty to attempted possession of marijuana with intent to deliver, MCL 750.92; MSA 28.287 and MCL 333.7401; MSA 14.15 (7401), and was placed on probation for two years. After the criminal case was heard and resolved, Washington filed a motion for the return to him of property taken from him at the time of the execution of a search warrant before he was charged in this case. Recorder’s Court Judge Townsend granted defendant’s motion in part, requiring the Detroit Police Department to return $900 in cash and a "proof of residence” to Washington. Appellant, City of Detroit, Department of Police, appeals from this order by leave granted, claiming that the Detroit Recorder’s Court, since its reorganization, lacks jurisdiction to hear motions for the return of property, and further, that appellee Washington did not adequately establish his right to possession of the property. On August 30, 1982, prior to institution of the criminal proceedings against defendant, Ozell Washington, the Detroit Police Department obtained a search warrant from a district judge for the premises at 5046 Linsdale, Detroit. Immediately prior to execution of the search warrant, a Detroit police officer, using marked bills, pur chased $10 worth of marijuana from Washington on the front porch of the Linsdale premises. Washington took the money and disappeared into the residence, returning several minutes later with a bag containing 4.1 grams of marijuana. Soon thereafter, officers entered and searched Washington’s home by virtue of the warrant and then arrested Washington on the steps of his home. A search of his person disclosed a small .38 caliber derringer pistol in his pants pocket, which was seized from him. Taken from his residence on Linsdale, pursuant to the search warrant, were twelve plastic bags containing approximately 448 grams of marijuana, a 12-gauge shotgun, a scale and $914 cash, which the police describe as suspected narcotics proceeds, along with the additional $10 in marked secret service funds. At the outset, it should be noted that there is no claim to the money by any intervening third party. Addressing the issues raised by appellant police department, we first consider whether the Recorder’s Court possesses jurisdiction to order the return of the cash and other items to defendant. In this case, the search warrant was issued by the district judge, and the fruits of the search warrant were potential evidence in the within controlled substance case. "For many years the basic theory of the courts was that seized property which would be admissible as evidence in a pending trial was held in custodia legis and could not be recovered in any proceeding by the owner, until its value as evidence was exhausted.” (Footnote omitted.) Dow, Searches and Seizures — Right of an Individual to Force the Return of Goods Seized and Held by Police Officials, 35 Mich L Rev 306-307 (1936). Upon completion of the within criminal proceeding, the housekeeping function of the Recorder’s Court judge was to make appropriate orders for disposition of any property held in connection with the criminal proceeding. Section 5 of the search warrant statute establishes the procedure for disposition of property seized under a search warrant. 3In Dep’t of Treasury v Recorder’s Court Judge, we held that assertion of a jeopardy assessment by the state treasurer against a defendant in a controlled substance case for the purpose of levying on a substantial sum of money that had been seized by the Detroit Police Department raised questions of title essentially civil in nature. Thus, we concluded that the Recorder’s Court lacked jurisdiction. But, in so ruling, we said, apropos of the within case, "In short, Recorder’s Court jurisdiction is limited to the disposition of duly instituted criminal proceedings and issues directly related to those proceedings. It does not include general jurisdiction to determine questions of title.” (Emphasis in original.) As previously indicated, the within case involves only two parties: defendant, from whom the property was seized, and the police department that seized and holds the property. There is no question here requiring an exercise of civil jurisdiction beyond the Recorder’s Court’s jurisdiction over crimes occurring in Detroit. In People v Rosa, the Supreme Court stated: "We do hold that in criminal cases similar to the one before us in this appeal, it is the ancillary right and duty of the recorder’s court to determine the right to possession of money or goods illegally seized by law enforcing officials.” Appellant police department believes that cases like Rosa rested upon MCL 726.11; MSA 27.3561, which has been repealed and replaced by MCL 725.10a; MSA 27.3950(1). Particularly, appellant refers to the following repealed portion: "to do all acts which the circuit courts of this state, within their respective jurisdictions, may, in like cases, issue and do by the laws of this state.” We do not agree with their conclusion that the repeal of the above portion of the statute somehow reduced the essential criminal jurisdiction of the Recorder’s Court. The original and exclusive jurisdiction of the Recorder’s Court over felonies committed in Detroit includes the ancillary power to return property to those from whom it has been seized for use as possible evidence. The so-called reorganization of Recorder’s Court does not deprive it of general jurisdiction over felonies, including the ancillary power here exercised. In so holding, we do not mean that Recorder’s Court has jurisdiction to hear claim and delivery (formerly replevin) cases. Neither do we mean that Recorder’s Court has jurisdiction to adjudicate title to personal property among competing claimants. We do mean that in the framework of a criminal case, the Recorder’s Court has jurisdiction to order the return of property seized by the police department to the person from whom it was seized. Second, appellant police department argues that defendant Washington, from whom the property was seized, did not adequately prove his right to possession. Appellant city asserts in oral argument that Washington’s cash was the "fruits of illegal enterprise” and cites out-of-state cases which hold that money derived from sale of narcotics is "derivative contraband” that presumably should not be returned. This argument seems to miss the mark because appellant makes no reference to the controlled substance forfeiture statutes, MCL 333.7521 and 333.7524; MSA 14.15(7521) and 14.15(7524). The statutes define what property is subject to forfeiture, referring to money in § 7521(f) as follows: "Any money that is found in close proximity to any property that is subject to forfeiture under subdivision (a), (b), (c), (d), or (e) shall be presumed to be subject to forfeiture under this subdivision. This presumption may be rebutted by clear and convincing evidence.” However, this record does not indicate any effort by appellant to seek forfeiture of the money under the controlled substance forfeiture statutes. Consequently, we reject appellant’s claim, which is unsupported by evidence, that we treat the money as derivative contraband and deny the petition to return it to Washington, from whom it was seized. In People v One 1973 Pontiac Automobile, we held constitutional the predecessor forfeiture statute and approved the procedure for forfeiture of a motor vehicle used in that case. A forfeiture claim under the controlled substance statutes would pose a different question than that which we decide here. We believe that defendant Washington is entitled to the return of the property unless there is a lawful reason to deny him its return. The burden of proof to establish a lawful reason to deny the return of the property to the person from whom it was seized was on the police. People v Rosa, supra, is instructive regarding this issue, although it is a case involving an admittedly illegal search and seizure. In Rosa, the Court affirmed the return of money to Rosa, saying: "We are not considering an appeal involving an action that was started by defendant-appellee in the recorder’s court to try question of title, but a case where defendant was forcibly brought before the recorder’s court, where the issue presented is the superior right to possession as between the seizing authority and the one from whom the property was seized.” As indicated, in one respect Rosa differs from the within case in that there the search was held unlawful in the trial court. In the within case, no attack is made on either the constitutionality or legality of the search. When defendant was charged with possession of marijuana with intent to deliver, presumably the property seized from defendant under the search warrant would have been offered in evidence at a trial. However, when defendant pled guilty to the lesser offense of attempted possession of marijuana with intent to deliver, there was no longer any occasion to offer this property in evidence. Now that defendant has been sentenced after the acceptance of his plea, and since there is not any appeal pending, there does not appear to be any occasion for further possible need of the seized property as evidence. Also, as previously indicated, there are not any intervening parties seeking to establish a right to possession or ownership of the seized property. Thus, defendant Washington is prima facie entitled to the return of the property seized from him. In People v Lavine, in a split decision, we held that the defendant in that case failed to show a superior right of possession to cash and other property. We believe Lavine rests on its own facts and is not controlling in the within case. In W Mason, Inc v Jackson County Prosecutor, in a split decision, we reversed a circuit court order denying a motion for an order directing the return of a bulldozer to its owner which had been held by the police pending a murder trial. In so holding, we held that under MCL 780.655; MSA 28.1259(5), it was no longer necessary for the police to retain possession of the bulldozer, which was essential to plaintiffs business. In Robinson v Inches, the Supreme Court held that while officers have a right to seize money to be used as evidence of gambling, it is their plain duty to return it when a complaint is neither made nor contemplated. The Supreme Court affirmed, granting mandamus for that defendant, saying it was the proper remedy. In the within case, the controversy is between defendant-appellee Washington, from whom the property was seized, and appellant Detroit Police Department, the seizing authority. As previously indicated, we hold that Recorder’s Court continues to have jurisdiction over criminal proceedings oc curring in the City of Detroit, including an ancillary matter of the kind here involved. The within case is a criminal case arising in the City of Detroit. The search warrant issued by the district court involved a location within the City of Detroit. Consequently, in accordance with this opinion, the order of the trial court for the return of the money and specified property to defendant is affirmed. MCL 780.655; MSA 28.1259(5). On appeal, neither side claims this statute applies. For that reason, we do not discuss the statute in depth. 89 Mich App 650; 281 NW2d 134 (1979). Id., pp 654-655. 382 Mich 163, 168; 169 NW2d 297 (1969). MCL 725.10a; MSA 27.3950(1). No evidence was offered to support the claim. 84 Mich App 231; 269 NW2d 537 (1978). MCL 335.355; MSA 18.1070(55), which was replaced by MCL 333.7521 and 333.7524; MSA 14.15(7521) and 14.15(7524). People v Rosa, supra, p 167. 95 Mich App 200; 290 NW2d 413 (1980). 95 Mich App 447; 291 NW2d 76 (1980). 220 Mich 490; 190 NW 227 (1922). See MCL 725.10a; MSA 27.3950(1) for definition of specific crimes, People v Moss, 68 Mich App 614; 244 NW2d 1 (1976), lv den 399 Mich 836 (1977).
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Shepherd, J. Defendant appeals as of right from the circuit court order granting plaintiffs’ motion to confirm an arbitrators’ award and denying defendant’s motion to vacate the award. Defendant also appeals from that portion of the circuit court’s judgment which required defendant to pay 12 percent interest on the arbitration award. The appeals were consolidated by order of this Court. Plaintiff Delbert St. Bernard was a passenger in an automobile driven by Ray Powell which was negligently struck by an Ohio vehicle driven by Avengelina Stoner, an Ohio resident, on March 14, 1975. The parties have stipulated that Delbert St. Bernard sustained injuries above the no-fault tort threshold and in excess of $40,000. Susan St. Bernard’s claim is derivative from her husband’s injuries. The Stoner vehicle, in accordance with Ohio law, had bodily injury liability insurance coverage for up to $12,500. Plaintiffs settled with Stoner’s insurer for her policy limit and with their own no-fault insurer for $7,500. This latter settlement was in lieu of contesting whether the uninsured motorist coverage under the St. Bernard’s own policy could be "stacked”. On December 12, 1978, plaintiffs sought recovery from Powell’s no-fault insurer, defendant Detroit Automobile Inter-Insurance Exchange (DAIIE), based on the uninsured motorist coverage provided for in that policy. On January 4, 1979, defendant denied the claim on the ground that the Stoner vehicle did not qualify as an uninsured motor vehicle. By demand dated April 29, 1980, the St. Bernards commenced arbitration proceedings pursuant to the uninsured motorist provisions and arbitration provisions of Powell’s DAIIE policy. An arbitration hearing ws held October 22, 1981. By order dated that same day, the arbitrators awarded the St. Bernards $20,000, presumably the policy limits. Proceedings were commenced in Monroe County Circuit Court by plaintiffs’ motion to confirm the arbitration award, filed October 23, 1981. In addition to the $20,000 principal sum, the motion requested an allowance for taxable costs and interest totaling $3,439.20. By its motion of November 9, 1981, defendant sought to vacate the arbitration award. Following a hearing, the circuit court entered an order on January 28, 1982, granting plaintiffs’ motion and denying defendant’s motion. The circuit court’s order was based on its finding that the parties had consented to arbitration of their disputes and that they had unconditionally agreed to be bound thereby. After a subsequent motion and hearing, the circuit court entered its judgment on March 23, 1982, ordering defendant to pay $27,290: the $20,- 000 arbitration award, $140 in costs and $7,150 in interest, calculated from March 6, 1979 (approximately 60 days from the date of defendant’s rejection of plaintiffs’ claim) at 12 percent per annum. On appeal, defendant argues that the arbitrators exceeded their powers by refusing to enforce a clear and unambiguous provision of the insurance contract and that, even if the arbitrators’ award was properly confirmed, any interest thereon was calculable at a 5 percent rather than a 12 percent rate. I Judicial review of arbitrators’ awards is limited. Detroit Automobile Inter-Ins Exchange v McMillan, 97 Mich App 687, 690; 296 NW2d 147 (1980). In general, relief from an arbitrators’ decision may be had only where: "(a) The award was procured by corruption, fraud or other undue means; "(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party; "(c) The arbitrators exceeded their powers; or "(d) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing as to prejudice substantially the rights of a party.” GCR 1963, 769.9(1). The standard for judicial review of arbitrators’ decisions was elaborated upon by the Supreme Court in Detroit Automobile Inter-Ins Exchange v Gavin, 416 Mich 407; 331 NW2d 418 (1982). In Gavin, as in the instant case, DAIIE based its claim for review on the ground that the arbitra tors had exceeded their powers, GCR 1963, 769.9(l)(c), arguing that the award was contrary to express provisions contained in the insurance policy. The Gavin Court said, quoting Howe v Patrons’ Mutual Fire Ins Co of Michigan, 216 Mich 560, 570; 185 NW 864 (1921): " '[WJhere it clearly appears on the face of the award or the reasons for the decision as stated, being substantially a part of the award, that the arbitrators through an error in law have been led to a wrong conclusion, and that, but for such error, a substantially different award must have been made, the award and decision will be set aside.’ ” Gavin, supra, p 439. Application of that standard to arbitration cases involving principally or solely legal questions was also discussed by the Gavin Court: "The character or seriousness of an error of law which will invite judicial action to vacate an arbitration award under the formula we announce today must be error so material or so substantial as to have governed the award, and but for which the award would have been substantially otherwise. "Reviewing courts should focus upon the materiality of the legal error to test whether judicial disapproval is warranted, and not upon the question whether the rule of law was so well settled, widely known, or easily understood that the arbitrators should have known of it. Arbitrators are not necessarily trained in the law and are men and women of varying ability and expertise. In the cases before us, the validity of the express contract terms was essentially a legal question. Questions of law are not primarily or even ordinarily within the province of arbitration. For the most part, arbitrators are concerned with factfinding. Because a degree of efficiency can be attained by permitting arbitrators to decide legal questions, we do not expect them to refrain from making the attempt when required to do so by the case. Nevertheless, just as a judge exceeds his power when he decides a case contrary to controlling principle of law, so does an arbitrator. Thus, whether or not the Gavin and Standfes [Detroit Automobile Inter-Ins Exchange v Standfest, 96 Mich App 71; 292 NW2d 164 (1980), rov’d 416 Mich 407; 331 NW2d 418 (1982)] arbitration panels should have had the prescience to anticipate our decision in Bradley [v Mid-Century Ins Co, 409 Mich 1; 294 NW2d 141 (1980)], that unambiguous 'other insurance’ clauses were valid to preclude stacking is entirely beside the point. We will modify the awards not because the rule ultimately announced in Bradley was obvious, inevitable, or 'clear’, but because it is evident from the face of the awards that the arbitrators in those cases erred in not enforcing the anti-stacking provisons of the insurance contract, the terms of which primarily governed the controversy, and that but for such error the awards would have been substantially different.” Gavin, supra, pp 443-444. In the instant case, both parties acknowledged in the arbitration proceedings that here a matter of purely legal interpretation was involved. Defendant DAIIE’s policy obligated it to pay when a passenger of its insured was injured because of an accident with an uninsured automobile. Defendant claims that its policy definition of "uninsured automobile” eliminated plaintiffs from coverage as a matter of law. This was because the alleged uninsured motor vehicle, the Stoner vehicle, had some "bodily injury liability insurance policy”, while to be "uninsured” under the DAIIE policy the automobile had to have no such policy coverage. Plaintiffs argued to the arbitrators that "uninsured” means the same as a matter of law as "underinsured” in this context. Santillanes v Banks, 86 Mich App 615; 273 NW2d 83 (1977). That case involved apparently identical policy language contained in a DAIIE policy. A passenger/ victim sought payment after an accident with an Illinois driver who had only $10,000 of coverage available. This amount satisfied the Illinois statutory requirements but not the Michigan requirement of $20,000 of coverage. This Court affirmed a declaratory judgment which held that the Illinois vehicle was "uninsured” for purposes of the policy language and that the victims were entitled to recovery under the DAIIE policy. In the instant case, defendant argued to the arbitrators that Santillanes was no longer good law because the statutory requirements for inclusion of uninsured motorist coverage unless specifically rejected, MCL 500.3010; MSA 24.13010, had since been repealed and the no-fault act, with its various mandatory coverages, had since been enacted and had replaced the fault system. Arguments were also made regarding the coverage available from the Motor Vehicle Accident Claims Fund and the general former appellate rationale of stretching to find uninsured motorist coverage from any available insurer to protect the fund from too many claims. It is clear that nothing except the legal validity of defendant’s definition of an uninsured automobile was at issue at the arbitration proceedings. The determination of that issue meets and surpasses the "but for” test of Gavin, supra. Deciding the legal issue was deciding the case. If the contract provision allowing payment only where the other vehicle carried no bodily injury liability insurance is a valid contract provision, the arbitrators exceeded their powers in ignoring that provision and awarding plaintiffs the full $20,000 available under the insurance policy’s uninsured motorists coverage. Interpretation of this Court’s opinion in Santil lanes is required to determine who should prevail here. At first blush, Santillanes might be interpreted as having continuing viability and as mandating the arbitration award which was made herein. The first issue addressed in Santillanes was whether the "underinsured” Illinois motor vehicle was an "uninsured automobile” under DAIIE’s uninsured motorist coverage. The reasoning of Woods v Progressive Mutual Ins Co, 15 Mich App 335; 166 NW2d 613 (1968), was determined to be applicable so as to defeat the defendant’s claim that an underinsured vehicle is not an uninsured vehicle. In Woods, the definition of "uninsured motor vehicle” contained in MCL 257.1102(d); MSA 9.2802(d) was utilized to establish that, unless a liability policy meeting the requirements of Michigan law was in force as to a motor vehicle, the motor vehicle was an uninsured motor vehicle. We are of the opinion, however, that the reasoning behind Woods, and therefore Santillanes, was valid only in the context of the then-existing fault system of automobile insurance and the strong policy in favor of mandatory uninsured motorist coverage, MCL 500.3010; MSA 24.13010. At that time, it was statutorily mandated that uninsured motorist coverage be automatically included in all motor vehicle insurance policies unless the named insured rejected such coverage in writing. The Motor Vehicle Accident Claims Fund was also part of the Woods legal environment. The fund paid up to $20,000 for damages for which there was no insurance policy which provided coverage; and there existed a strong policy of providing uninsured motorist coverage under insurance policies wherever possible in order to limit claims against the fund. Since the decision in Woods, both the fault system and § 3010 have been replaced. The fund, however, covers the present accident since it occurred prior to January 2, 1976. Bradley v Mid-Century Ins Co, 409 Mich 1, 22-23; 294 NW2d 141 (1980). The question then is whether, given the statutory changes which have taken place, the broad, liberal interpretation geared toward finding coverage for uninsured motor vehicles and the public policy to that effect still exist. In an analogous situation, insurance provisions prohibiting the "stacking” of uninsured motor vehicle provisions are now permissible, although prior to the no-fault act they were held to be unenforceable. Bradley, supra; Gavin, supra. As this Court noted in Detroit Automobile Inter-Ins Exchange v Standfest, supra, p 73, in discussing case law which had interpreted MCL 500.3010; MSA 24.13010 as requiring "stacking” of uninsured motorist coverage: "The rationale underlying these decisions was eliminated by the repeal of the uninsured motorists statute and the passage of the Michigan no-fault act, MCL 500.3101 etseq.; MSA 24.13101 et seq.” We conclude, as did this Court in Standfest (and as the Supreme Court implicitly did by its disposition in Standfest), that the rationale upon which the Santillanes opinion (and the Woods opinion, insofar as it affected Santillanes) is based no longer exists with the repeal of the uninsured motorist statute, MCL 500.3010; MSA 24.13010. Under the no-fault legislation, all fundamental damages are provided for through first-party personal injury protection coverages or the assigned claims facility, MCL 500.3172; MSA 24.13172. Thus, the primary dilemma which one injured by an uninsured motorist previously faced no longer exists. Moreover, the strong public policy for "universal” uninsured motorist coverage (as embodied in § 3010) may, very reasonably, be said to have vanished with the repeal of that statute. The provision in the policy issued by defendant which provided uninsured motorist coverage only in the event of an accident involving a motor vehicle which carried no bodily injury liability insurance coverage was, therefore, not unenforceable, either by statute or as a matter of public policy. Since the Stoner vehicle was insured by a $12,500 bodily injury liability insurance policy, it was not an uninsured vehicle under the terms of the DAIIE insurance policy issued to Powell. The arbitrators, therefore, committed an error of law by not giving effect to the policy provision and, but for the error, a substantially different award must have been made. Under Gavin, then, it follows that the arbitrators exceeded their powers and that the arbitration award should have been vacated, as was requested in defendant’s motion to the circuit court. We therefore reverse the circuit court’s order confirming the arbitrators’ decision, grant defendant’s motion to vacate the arbitrators’ award, and set aside the judgment of the circuit court which ordered defendant to pay $20,000, plus costs and interest, to plaintiffs. II Defendant next argues that the circuit court improperly awarded 12 percent interest on the arbitrators’ award. Since we decide that the award itself must be vacated, we do not decide the second issue raised by defendant at this time. Reversed. Costs to defendant.
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M. J. Kelly, P.J. In this case, the prosecution appeals from an order quashing an information which charged defendant, King Tut, with violation of the Precious Metal and Gem Dealer Act, MCL 445.481 et seq.; MSA 19.720(1) et seq. We affirm. King Tut is the assumed business name of Marc Levise, licensed to deal in precious metals under MCL 445.483; MSA 19.720(3). A two-count information was filed on January 4, 1985, charging Marc Levise, Vernon Jocque and King Tut with (1) failing to retain gold jewelry and gems for a period of seven days after their purchase, contrary to MCL 445.485; MSA 19.720(5), and (2) knowingly receiving these items without recording their purchase, contrary to MCL 445.484; MSA 19.720(4). Vernon Jocque is an employee of King Tut. Harold Christy, complainant, testified at the preliminary examination that his home in Birmingham, Michigan, was burglarized on August 7, 1984, resulting in the theft of gold jewelry valued at several thousand dollars. Some of the pieces had been designed by complainant and were readily identifiable. On August 9, 1984, Christy went to Shores Gold on Harper Avenue in Detroit and identified some of the items which had been taken from his home. An employee of Shores Gold testified that he is a buyer of gold and silver for that business and purchased the items identified by Christy from Vernon Jocque at King Tut on August 7, 1984. Ivan Simokovich testified that he went to King Tut on August 7, 1984, to sell merchandise stolen at a Birmingham residence. He dealt directly with Vernon Jocque and received a price of $300 unaccompanied by a receipt. Simokovich did not recall seeing Marc Levise on the premises at that time. Other evidence was introduced establishing that King Tut’s ledgers contained no entry for the purchase of August 7, 1984, and that Marc Levise was vacationing in Caseville, Michigan, from August 4, 1984, until August 8 or 9, 1984. The magistrate bound defendants Jocque and King Tut over to Detroit Recorder’s Court on the information filed but dismissed the information against Marc Levise. Defendant King Tut subsequently moved in Recorder’s Court to quash the information on the ground that King Tut was merely an assumed name for Marc Levise and that the Precious Metal and Gem Dealer Act did not provide for a dealer’s vicarious criminal liability. An order to quash was entered January 10, 1985. One issue presented in this case is whether a business operating under an assumed name pursuant to MCL 445.1; MSA 19.821 is vicariously liable for the acts of its employees in violating the Precious Metal and Gem Dealer Act. The general rule is that vicarious criminal liability will not arise unless specifically provided for by the Legislature. People v Wilcox, 83 Mich App 654, 659-660; 269 NW2d 256 (1978). Vicarious liability eliminates the necessity of proving defendant’s actus reus as an element of the offense. See People v DeClerk, 400 Mich 12, 20, n 4; 252 NW2d 782 (1977). We are persuaded that the resolution of this issue is governed by People v Wilcox, supra, in which a similar issue was presented in the context of the second hand and junk dealers act, MCL 445.401 et seq.; MSA 19.711 et seq. In that case, a panel of this Court found that the second hand and junk dealers act should be read in pari mate ria with the pawnbroker’s act, MCL 446.201 et seq.; MSA 19.581 et seq., which specifically provides that pawnbrokers are liable for the wrongful acts of their employees with regard to the sanction of license revocation. Since the second hand and junk dealers act did not include a similar provision, this Court concluded that the Legislature did not intend to impose vicarious liability on second hand or junk dealers for the actions of their employees. While the second hand and junk dealers act and the pawnbrokers act were enacted in the same 1917 legislative session, whereas the Precious Metal and Gem Dealer Act was enacted by 1981 PA 95, effective September 11, 1981, all three acts regulate a similar activity and are part of the same extensive state regulatory scheme governing trades and businesses. See Co Rd Ass’n of Michigan v Bd of State Canvassers, 407 Mich 101, 119; 282 NW2d 774 (1979). We conclude that the Precious Metal and Gem Dealer Act should be read in pari materia with the 1917 acts and hold that, if the Legislature had intended to impose vicarious liability upon dealers of precious metals and gems for the actions of their employees, the Legislature would have stated this intent in the act. We further note that People v Wilcox was decided in 1978, three years prior to the enactment of the Precious Metal and Gem Dealer Act, and we must presume that the Legislature was aware of this Court’s ruling on the vicarious liability issue. Given the absence of any provision creating vicarious liability in dealers of precious metals and gems, we hold that defendant King Tut may not be held liable for the acts of employee Vernon Jocque. The prosecution alternatively argues in its sup plemental brief on appeal that King Tut is directly liable as a dealer for dealer violations of the law. However, dealer is defined within the act as "any person, corporation, partnership, or association” engaged in the business of buying or receiving precious items from the public. MCL 445.482(b); MSA 19.720(2)(b). Since in this case the dealer is a person, Marc Levise, and not a corporation, partnership or association, it must be concluded that King Tut and Marc Levise are one and the same defendant. The prosecution does not deny this common identity nor does the prosecution challenge the magistrate’s dismissal of the information against Marc Levise. Marc Levise is the dealer and is the appropriate defendant in any criminal prosecution for dealer violation of the Precious Metal and Gem Dealer Act. King Tut is an alias and not a separate legal entity. When Marc Levise was dismissed from this case by the magistrate who refused to bind him over, that dismissal extended to his alias. Affirmed. Contrary to the status of a corporation. See People v American Medical Centers of Michigan, Ltd, 118 Mich App 135; 324 NW2d 782 (1982), lv den 417 Mich 985 (1983), cert den sub nom Fuentes v Michigan, 464 US 1009 (1983).
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C. W. Simon, J. Plaintiffs appeal as of right from an order granting defendant’s motion for summary judgment made pursuant to GCR 1963, 117.2(1). Plaintiff had filed a declaratory judgment action seeking to have the named driver exclusion found invalid if the named driver is also the owner of the vehicle. The facts of this case are not in dispute. On May 27, 1981, an accident took place involving an automobile owned and operated by plaintiff Karen Muxlow and a pickup truck owned and operated by Donald Pickier. At the time of the accident, the truck was insured under a policy issued by defendant to Donna M. Pickier, mother of Donald Pickier. The policy listed Donna Pickier as the named insured and principal driver and specifically excluded Donald Pickier. Plaintiffs brought suit against Donald Pickier for the injuries they had sustained as a result of the accident. The defense of the suit was tendered to defendant, which refused to defend on the grounds of driver exclusion. Subsequently, a de fault judgment was entered against Mr. Pickier. After an unsuccessful garnishment attempt, plaintiffs instituted the declaratory judgment action against defendant. Plaintiffs argue that the no-fault act and the financial responsibility act required that an owner maintain insurance and that the insurance policy be for the benefit of the person who is required to furnish proof of financial responsibility — the owner. Thus, plaintiffs argue, it is against public policy to allow the vehicle owner to be named as an excluded driver on an insurance policy. This issue has already been decided adversely to plaintiffs’ position. MCL 500.3009(2); MSA 24.13009(2) provides: When authorized by the insured, automobile liability or motor vehicle liability coverage may be excluded when a vehicle is operated by a named person. Such exclusion shall not be valid unless the following notice is on the face of the policy or the declaration page or certificate of the policy and on the certificate of insurance . . .: Warning— when a named excluded person operates a vehicle all liability coverage is void — no one is insured. Owners of the vehicle and others legally responsible for the acts of the named excluded person remain fully personally liable. This Court, in Allstate Ins Co v DAIIE, 142 Mich App 436; 369 NW2d 908 (1985), recently interpreted the statute and after lengthy analysis held "that the named driver exclusion in MCL 500.3009(2) may properly be applied to the owner of a motor vehicle.” 142 Mich App 443. Plaintiffs’ public policy arguments have previously been addressed by this Court. For instance, in DAIIE v Comm’r of Ins, 86 Mich App 473, 479-480; 272 NW2d 689 (1978), this Court found that the Legislature had balanced other countervailing public policy considerations in favor of allowing driver exclusions. See also Allstate Ins v DAIIE, supra. Requiring that owners not be named excluded drivers on insurance policies would not solve plaintiffs’ public policy considerations. For example, in this case, if Donald Pickier tried to obtain a certificate of insurance so he could obtain registration without buying insurance himself, he could easily have transferred the car to his mother’s name so that she could have obtained a policy excluding Donald Pickier, an exclusion which plaintiff’s conceded would be valid. The effect on plaintiff’s potential recovery would be the same. In summary, the choice by the Legislature among competing policy considerations is best left to its determination and is not for the courts to question. "The no-fault act is experimental and innovative, and in creating this scheme of insurance the Legislature was faced with difficult policy issues. The question of named driver exclusions was one such issue.” DAIIE v Comm’r of Ins, supra, p 480. Affirmed. M. J. Kelly, P.J., concurred.
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Per Curiam. Respondent appeals from an order of the circuit court granting petitioner a restricted license. We reverse and reinstate the decision of the hearing officer. Petitioner’s driver’s license was apparently suspended from August 19, 1982, through November 19, 1982, after petitioner refused to submit to a chemical test on July 11, 1982. On April 30, 1984, Officer David Gibbard of the Clawson Police Department investigated an accident. He was told by a witness that petitioner’s car hit a parked car and swerved down the road for two hundred feet before stopping. Petitioner was sitting in her badly damaged Mercury, which was stopped in the middle of the road. She told Officer Gibbard that her finger was injured, but declined medical treatment. Petitioner later claimed that Officer Gibbard caused the injury, after which she remembered nothing. She refused to show Officer Gibbard her car’s certificate of registration and her driver’s license. Officer Gibbard smelled a strong odor of alcohol emanating from the car and petitioner. When petitioner refused to leave the car, Officer Gibbard removed her. Handcuffing was necessary, because petitioner was waving her arms and screaming. Officer Gibbard arrested petitioner for operating a motor vehicle while under the influence of intoxicating liquor (ouil) and took her to the police station. While there, she was read her rights pertaining to taking a chemical test and was asked to take the test a number of times. Petitioner continuously screamed, acted incoherent, and responded to the requests with obscenities. Pursuant to MCL 257.625d; MSA 9.2325(4), Officer Gibbard summit-ted a sworn statement to respondent indicating that petitioner refused to take a chemical test upon request. A hearing followed, at which both Officer Gibbard and petitioner testified. The hearing officer made the following findings of fact: Number one, I find that the law enforcement officer involved in this case did have reasonable grounds to believe that petitioner here had been operating a motor vehicle upon the highways of this state while under the influence of intoxicating liquor in that he did observe her vehicle at the scene of an accident. He made a reasonable determination based on all the facts presented to him. The petitioner had been driving her vehicle at the time of the accident. He observed her in the vehicle. The ignition was on. There was damage to her vehicle and a witness did put her behind the wheel at the time of the accident. He further observed about her that she had the strong odor of intoxicants on her person and that she struggled considerably upon being told that she was being placed under arrest. Second, I find the petitioner was arrested for operating under the influence of intoxicating liquor. Third, I find that she was advised of her rights under the Implied Consent Law. I find that she refused to take the test. I don’t find the injury to her finger to be the type that would allow her to escape her responsibilities under the Implied Consent Law, and certainly any effects that the drinking that she did which she admits here — that she had done some drinking prior to this accident— any effects that that may have had on her mind combined with the injured finger, well voluntary intoxication is abolutely [sic] no defense to the Implied Consent Law. So I find her refusal here to be not reasonable and the appeal of Jean Kester is denied. The hearing officer suspended petitioner’s license for one year pursuant to MCL 257.625f(4); MSA 9.2325(6)(4). Petitioner began this action in circuit court seeking full restoration of her driver’s license. During the hearing in circuit court, petitioner requested a restricted license. Over respondent’s objections, the circuit court issued a restricted license to petitioner, allowing her to drive to seek employment two days a week and, after petitioner obtained employment, to travel to and from work. Respondent subsequently objected to petitioner’s proposed order, which stated that the hearing officer’s suspension of petitioner’s license was improper. Respondent argued that the circuit court had not expressly ruled on the merits of the hearing officer’s determination, but granted petitioner a restricted license based solely upon hardship. At a subsequent hearing, the circuit court ruled that petitioner’s proposed order comported with its earlier ruling and entered it. Anyone arrested for violating the statute prohibiting the operation of a motor vehicle while under the influence of intoxicating liquor or controlled substances gives implied consent to undergo a chemical test to determine the amount of alcohol or controlled substance in his or her blood. MCL 257.625c; MSA 9.2325(3). A person who refuses to submit to a chemical test may request a hearing, which is limited to a determination of the following issues: (1) whether the officer had reasonable grounds to believe the driver committed a crime specified in MCL 257.625c(1); MSA 9.2325(3)(1); (2) whether the person was arrested for the crime; (3) whether the driver unreasonably refused to submit to the test upon the officer’s request; and (4) whether the driver was advised of his or her rights concerning the chemical test. After the hearing, the Secretary of State may suspend the driver’s license for six months or, for a second refusal within seven years, for one year. MCL 257.625f(2), (4); MSA 9.2325(6)(2), (4). Circuit court review of the hearing officer’s determination is provided for, but is limited to whether the hearing officer correctly determined the above four issues or whether a restricted license should be provided. MCL 257.323; MSA 9.2023. A restricted license, however, is prohibited when the petitioner’s license has been suspended twice within seven years. MCL 257.323c(2); MSA 9.2023(3)(2). As such was the case here, the circuit court improperly granted petitioner a restricted license and we must reverse. The petitioner apparently sought review of the hearing officer’s determination. From the confused record below, it is possible that the circuit court was reviewing the record to determine. whether the hearing officer properly determined the issues enumerated in MCL 257.625f(2); MSA 9.2325(6)(2). As granting a restricted license was not possible, however, the circuit court could only set aside the suspension, or modify it in some other unspecified fashion, if the court disagreed with the hearing officer. Moreover, although circuit court de novo review was formerly authorized by MCL 257.625f(3) and 257.323; MSA 9.2325(6)(3) and 9.2023, we believe MCL 257.625f(4) and 257.323(3), (4); MSA 9.2325(6)(4) and 9.2023(3), (4), as currently written, limit circuit court review in license suspension cases involving refusal to take a chemical test to whether the hearing officer’s findings were supported by substantial, material, and competent evidence on the whole record and were not contrary to law, the standard of review provided by Const 1963, art 6, §28 and MCL 24.306; MSA 3.560(206). While we might not have reached the same result had we been in the hearing officer’s position, our review of the record indicates that the hearing officer’s decision was supported by competent, material, and substantial evidence on the whole record and was not contrary to law. Accordingly, we reverse the circuit court’s order and remand for reinstatement of the hearing officer’s decision.
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M. J. Kelly, P. J. In this case, we are asked to decide whether the probate court has the authority to redetermine an inheritance tax more than ninety days after the final tax determination has been entered and the estate closed. We conclude that it does not and we reverse. H. Roy Johnson married Esther Pailthorp on October 22, 1955. At the time of the marriage, Esther had a twelve-year-old daugther and a son, petitioner in this action, who had turned seventeen years of age approximately forty-five days prior to the marriage. Johnson, predeceased by his wife, died on June 26, 1981, leaving a will in which he named his stepdaugther and his stepson as residuary legatees of equal shares of his estate. Probate proceedings were commenced on July 14, 1981. At the conclusion of these proceedings, the decedent’s stepdaugther and stepson each received shares of $51,387. Since both beneficiaries received over $100, their inheritances were subject to the provisions of Michigan’s inheritance tax act, MCL 205.201 et seq.; MSA 7.561 et seq., which, subject to certain exemptions, requires payment of an inheritance tax on the total bequest. MCL 205.201(1)(a); MSA 7.561(1)(a). One exemption allowed under the act is where the beneficiary "stood in [a] mutually acknowledged [parent-child] relationship [with the decedent] if the relationship began at or before the child’s seventeenth birthday and continued until the death of the decedent . . . MCL 205.202(1); MSA 7.562(1). Where this exemption applies, the transfer of property with a market value of up to $10,000 is exempt from inheritance taxation. In this case, the decedent’s stepdaugther received the benefit of the exemption and was assessed an inheritance tax of $877.36. Petitioner did not receive the benefit of the exemption, because he was already seventeen when his mother married the decedent. According to the final inheritance tax order entered January 11, 1982, petitioner was assessed an inheritance tax of $6,270.76, which was paid out of his share of the estate on February 19, 1982. The decedent’s estate was closed on March 4, 1982. On July 27, 1983, approximately nineteen months after the final inheritance tax order had been entered, petitioner sought to reopen his stepfather’s estate for a redetermination of the inheritance tax assessed against him. Specifically, petitioner argued that he should have received the benefit of the exemption for a "mutually acknowledged” parent-child relationship, as provided in MCL 205.202(1); MSA 7.562(1), because he had stood in a parent-child relationship with the decedent well before his seventeenth birthday. Following various hearings and an interlocutory appeal to the circuit court, the probate court determined that it was within its authority to consider petitioner’s request and that a mutually acknowledged parent-child relationship did exist between petitioner and decedent prior to the petitioner’s seventeenth birthday. On October 24, 1984, a second final inheritance tax order was entered awarding petitioner a tax refund of $5,393.40, plus inter est. The Michigan Department of Treasury appeals from this order as of right. The department’s position both on appeal and below is that petitioner’s request for a redetermination is barred under § 13 of the inheritance tax act, which provides in relevant part: The judge of probate upon the written application of any person interested, filed with him within 90 days after the final determination by him of any tax under this act, may grant a rehearing upon the matter of determining such tax. The attorney general may file the written application for rehearing upon the matter of determining such tax any time prior to the allowance of the final account. If the state appeals from the appraisement, assessment or determination of the tax, it shall not be necessary to give any bond. If, on rehearing, the judge shall modify his former determination he shall enter an order redetermining the tax, and make the necessary entries in the book provided for in section 17, and make report thereof to the commissioner of revenue and county treasurer as provided in section 18. [MCL 205.213(5); MSA 7.574(5).] Since almost nineteen months had elapsed between the final order of inheritance tax and the filing of the petition for redetermination, the department reasons that the probate court lacked the power to act on petitioner’s request. The department does not challenge the merits of. the probate court’s finding of a mutually acknowledged parent-child relationship. The probate court as well as the circuit court on appeal rejected the department’s reasoning and agreed with the petitioner that the ninety-day rule of MCL 205.213(5); MSA 7.574(5) had been modified by § 848 of the Revised Judicature Act, MCL 600.101 et seq.; MSA 27A.101 et seq., which provides in relevant part: Upon petition, where justice requires, and after due notice is given to all parties in interest, the probate court may grant rehearings and modify and set aside orders, sentences, or judgments rendered in the court. [MCL 600.848(1); MSA 27A.848(1).] The probate court relied, upon this statute in asserting its authority to reopen the estate to reconsider the inheritance tax issue. At a subsequent hearing, testimony was introduced from various witnesses and the trial court concluded that there was a mutually acknowledged father-son relationship between the decedent and petitioner prior to the petitioner’s seventeenth birthday. We agree that there is an apparent conflict between MCL 205.213(5); MSA 7.574(5) and MCL 600.848(1); MSA 27A.848(1), inasmuch as both pertain to time limitations upon the authority of the probate court to rehear issues on which it has previously ruled. However, where there is an apparent conflict between two statutes, a fundamental rule of statutory construction requires that the specific statute control over the general and that the specific statute be viewed as an exception to the general rule. See Findling v T P Operating Co, 139 Mich App 30, 38; 361 NW2d 376 (1984). This rule of statutory interpretation applies even where the general act is enacted subsequent to the specific act since a general act will not normally be construed as an implicit repeal of a formerly enacted, more specific act where to do so would disturb a long-standing practice or system of law. See Mayor of Port Huron v City Treasurer of Port Huron, 328 Mich 99, 111-112; 43 NW2d 77 (1950), and Attorney General, ex rel Owen v Joyce, 233 Mich 619; 207 NW 863 (1926). The ninety-day rule of MCL 205.213(5); MSA 7.574(5) has been in effect since at least 1947 and is part of a statutory scheme creating not only the inheritance tax but the general sales and use taxes as well. The ninety-day time limitation imposed on the probate court under the inheritance tax act is very narrow and specific in that it applies only to redeterminations of final inheritance tax orders. We do not believe that the Legislature intended to repeal this ninety-day rule by its enactment of the Revised Judicature Act, which only generally provides for the authority and procedures of the probate court. We further note that the probate court has jurisdiction and power conferred upon it not only by the Revised Judicature Act, but by the Revised Probate Code and "any other law or compact.” MCL 600.841(e); MSA 27A.841(e). Thus, the Revised Judicature Act is not the sole source of authority for determining the power and jurisdiction of the probate court. Petitioner argued below that even if the ninety-day rule of MCL 205.213(5); MSA 7.574(5) applied to this case, the probate court was, nevertheless, vested with all of the equitable powers of the circuit court pursuant to MCL 600.847; MSA 27A.847 and could thus consider his petition as a matter of equity. That statute is not, however, a jurisdictional grant, equitable or otherwise. Section 847 merely provides that, if the probate court has jurisdiction, then it may hear and decide cases and enter orders in the same manner as the circuit courts. Since under MCL 205.213(5); MSA 7.574(5) the probate court lacked jurisdiction to consider petitioner’s request in the first instance, § 847 does not apply. Moreover, even the circuit court’s authority to grant relief from orders and judgments previously entered is limited under MCL 2.612(c). The second final inheritance tax order of Octo ber 24, 1984, is vacated and the case is remanded for reinstatement of the final inheritance tax order of January 11, 1982. Reversed and remanded.
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Per Curiam. We granted leave to defendant St. Joseph Mercy Hospital to consider the propriety of the trial court’s denial of defendant’s motion for accelerated judgment and to compel arbitration. Plaintiff Bandlyn Osborne signed an arbitration agreement when she entered the defendant hospital on September 2, 1978. Her son, Darrell Osborne, Jr., was born that same day. The following day, Ms. Osborne signed an arbitration agreement on behalf of her son. On September 7, 1978, both mother and child were discharged from the hospital, and no revocation of the arbitration agreements was made within the sixty-day period provided under the Michigan Malpractice Arbitration Act, MCL 600.5042(3); MSA 27A.5042(3). It is undisputed that the child is mentally incompetent, and he allegedly suffers from brain damage, cerebral palsy and mental retardation. When plaintiffs filed a malpractice complaint in the circuit court, defendant moved for accelerated judgment and to compel arbitration pursuant to the agreements. The trial court denied defendant’s motion, concluding that the plaintiffs, as the parties seeking to avoid the arbitration agreements, had the burden of proof and that since Darrell Osborne, Jr., was mentally incompetent his disability tolled the running of the sixty-day revocation period. The circuit court found further that, since the revocation period was tolled, the plaintiffs could still revoke the arbitration agreement and held that the arbitration agreement had been timely revoked as a matter of law. We reverse and remand. The relevant provision of the mmaa, MCL 600.5046(2); MSA 27A.5046(2) provides: A minor child shall be bound by a written agreement to arbitrate disputes, controversies, or issues upon the execution of an agreement on his behalf by a parent or legal guardian. The minor child may not subsequently disaffirm the agreement. The trial court relied upon MCL 600.5851; MSA 27A.5851(1), finding that the statute created an exemption from the running of the period of limitation in the mmaa. Section 5851(1) provides in relevant part: If the person first entitled to make an entry or bring an action is under 18 years of age, insane or imprisoned at the time his claim accrues, he or those claiming under him shall have 1 year after his disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run. This Court has recently noted that § 5046(2) clearly changes the common law to permit a parent to bind a child to an arbitration agreement. Benson v Granowicz, 140 Mich App 167, 169; 363 NW2d 283 (1984), lv den 422 Mich 976 (1985). Plaintiffs rely on this Court’s decisions in Amwake v Mercy Memorial Hospital, 92 Mich App 546; 285 NW2d 369 (1979); Paavola v St Joseph Mercy Hospital Corp, 119 Mich App 10; 325 NW2d 609 (1982) ; DiPonio v Henry Ford Hospital, 109 Mich App 243; 311 NW2d 754 (1981), and Wallisch v Fosnaugh, 126 Mich App 418; 336 NW2d 923 (1983) , lv den 418 Mich 871 (1983), in support of their argument that the arbitration agreement signed on behalf of the infant Darrell Osborne, Jr., had been timely revoked because he is mentally incompetent, and thus the saving provision for mental incompetents found in MCL 600.5851(1) applies. The trial court adopted plaintiffs’ argument in its decision. However, the instant case can be readily distinguished from the cited cases on the facts. In Am-wake, this Court, analogizing to § 5851(1), found that the filing of a medical malpractice complaint by plaintiff’s special guardian impliedly revoked the arbitration agreement signed by plaintiff because the adult plaintiff was in a comatose state which prevented her from comprehending her rights or from exercising them in her best interest. In DiPonio, supra, plaintiffs’ decedent signed an arbitration agreement before he died. Plaintiffs filed suit and later revoked the arbitration agreement signed by the decedent after "discovering it.” On leave to appeal, this Court affirmed the circuit court’s denial of defendant’s motion for accelerated judgment and to compel arbitration, holding that, since plaintiffs’ decedent’s death was akin to a disability, the sixty-day revocation period was tolled during the period of disability and that the removal of the disability occurred when plaintiffs were appointed as personal representatives. 109 Mich App 253. Since the filing of the malpractice complaint was within the sixty days following plaintiffs’ appointment as personal representatives, timely revocation had occurred. Id. The Court also was persuaded by the "discovery” rule in tolling the sixty-day revocation period as the personal representatives had not been aware of the existence of the arbitration agreement. In Paavola, supra, this Court held that the appointment of a guardian for a mental incompetent does not remove the disability and commence the running of the limitation period for purposes of MCL 600.5851(1). 119 Mich App 14; see also Wallisch, supra, p 426. All of these cases which analogize to the statute of limitations tolling period for mental incapacity involved individuals who signed the arbitration agreements and later became disabled for one reason or another. In the instant case, at no time during the revocation period was Bandlyn Osborne under a disability that affected her statutory power to create the agreement or the corresponding power to revoke the arbitration agreement. Further, the legislative determinations that (1) a parent may bind his or her minor child to an arbitration agreement and (2) a minor child may not subsequently disaffirm have been upheld by this Court in Benson v Granowicz, supra; McKinstry v Valley Obstetrics-Gynecology Clinic, PC, (After Remand) 146 Mich App 307; 380 NW2d 93 (1985), lv gtd 424 Mich 877 (1986), and Roberts v McNamara-Warren Community Hospital, 138 Mich App 691; 360 NW2d 279 (1984). In Benson, plaintiff mother executed an arbitration agreement on behalf of her eight-month-old minor son, but argued that parents could not waive the minor child’s right to jury trial by signing an arbitration agreement. This Court disagreed, finding that the mmaa clearly changed the common law to permit a parent to bind a child to an arbitration agreement. 140 Mich App 167. Similarly, in Roberts, supra, this Court noted that, under the act, "a minor is bound by the consent of a parent or legal guardian and may not subsequently disaffirm any agreement entered into on the minor’s behalf. 138 Mich App 694. In McKinstry, supra, plaintiff signed two arbitration agreements, one on her behalf and one on behalf of her unborn child who was later born with Erb’s Palsy. Neither of the agreements was revoked within the sixty-day revocation period. This Court held that, pursuant to § 5046(2), the plaintiff mother had the legal authority to bind her minor child to arbitrate any and all claims the child may have, stating: In this case we conclude that the arbitration agreements were valid waivers of the right to a jury trial. The court below found that defendants had complied with the act, that there was no fraud or coercion, and that Kathleen McKinstry was in a sufficient physical and mental condition to sign a valid arbitration agreement. The findings of fact are supported by the record and not clearly erroneous. MCR 2.613(C). [146 Mich App 312.] Nothing in the record from below suggests that Bandlyn Osborne was not in a sufficient physical and mental condition to revoke the arbitration agreements within the sixty-day period. Further, in this case the analogy to the statute of limitations tolling period for mental incapacity loses force not only because the parent who bound the minor child was competent, but also because no complete bar to plaintiffs’ claim results. Rather, in this case, the claim has been brought in the wrong forum, but will still be heard through arbitration. Because the Legislature has created a specific remedy for the disability for infants and minors which specifically prohibits minors from subsequently disaffirming or revoking an arbitration agreement by giving the parent that power, we find that the disability of Darrell Osborne, Jr., while unfortunate, is irrelevant to this jurisdictional question. The trial court’s denial of defendant’s motion for accelerated judgment on this ground is reversed. However, we further note that at the motion hearing before the lower court plaintiffs raised additional issues with respect to defendant’s noncompliance with the statutory requirement regarding presentation of the arbitration agreement. Although plaintiffs argued below that the agreement was signed without the presentation of the arbitration booklet to plaintiff, and that the arbitration agreement was not printed in twelve-point boldface type, the lower court did not rule on the validity of the agreement, relying instead upon the jurisdictional issue for its decision. We note parenthetically that a panel of this Court held that failure to supply a copy of the information brochure results in an unenforceable arbitration agreement. Roberts v McNamara-Warren, supra. Under the circumstances, we conclude that remand to the trial court is necessary for a determination of the issues of defendant’s statutory compliance with the Malpractice Arbitration Act. The plaintiffs will still have the burden of proving noncompliance with the statute. Feinberg v Straith Clinic, 151 Mich App 204; 390 NW2d 697 (1986). Reversed and remanded.
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Beasley, J. Defendant, Dorothy Mae Ulecki, was convicted by a jury of two counts of first-degree murder, in violation of MCL 750.316; MSA 28.548. She was sentenced to life in prison on both counts, with her sentences to run concurrently. Defendant appeals as of right. The charges against defendant arose out of the stabbing deaths of her aunt and uncle. The fingerprints of defendant and her boyfriend were found at the scene of the homicides. Other circumstantial evidence discovered during the investigation of the murders, such as defendant’s use of the victims’ credit cards after the murders, further implicated defendant and her boyfriend in the killings. As a result of this investigation, defendant was arrested, placed in the Macomb County Jail, and charged with first-degree murder. At trial, the only direct evidence linking defendant to the killings was the testimony of her cell mate in the county jail. The cell mate testified that defendant had told her that she and her boyfriend had planned in detail to kill defendant’s aunt and uncle, that she had been present when the murders took place, and that she had assisted her boyfriend in attempting to render her aunt unconscious. The defendant testified that she had been present at the scene of the killings when her boyfriend had attacked her aunt and uncle. However, she went on to deny that she had known that her boyfriend was going to attack the victims or that she had assisted him in the attack, but, as indicated, the jury rejected this explanation and found her guilty. In her motion for a new trial and on appeal defendant raises one issue. She claims that the trial judge committed reversible error by not allowing her to call the assistant prosecuting attorney in charge of this case as a witness at trial. The trial judge, after conducting a post-trial evidentiary hearing, found that his refusal to allow defendant to call the assistant prosecutor as a witness at trial did not prejudice defendant in this case. Thus, the trial judge denied defendant’s motion for a new trial. The record of the trial and the subsequent evidentiary hearing reveal that defendant wanted to call the assistant prosecuting attorney as a witness in order to attempt to impeach the credibility of defendant’s cell mate. During defense counsel’s cross-examination of defendant’s cell mate, it was revealed that the assistant prosecutor assigned to defendant’s case was also assigned to the cell mate’s case. During cross-examination, the testimony revealed that the cell mate had originally been charged with bank robbery and felony-firearm. However, after the cell mate came forward with the information concerning defendant’s involvement in the subject murders, the assistant prosecutor agreed to reduce the charge against the cell mate to attempted armed robbery. The cell mate testified that she knew the original charges against her allowed a maximum sentence of life in prison, along with a consecutive mandatory two-year prison term for felony-firearm, while the reduced charge carried only a five-year maximum prison sentence. The cell mate went on to testify that she subsequently pled guilty to the reduced charge, that her bond was then reduced from $50,000 to $5,000 with ten percent cash required, and that she was then able to make bond. The cell mate also testified that she had been scheduled for sentencing one week prior to defendant’s trial. However, her sentencing was adjourned to a date subsequent to when she would testify at defendant’s trial. The cell mate testified that she did not desire the delay in her sentencing, but felt her sentencing was adjourned in order to ensure that she would be free to testify at defendant’s trial. She also testified that no deal or agreement had been made between her and the prosecutor in exchange for her testimony at defendant’s trial and that she did not believe her reduced charge and bond were the result of her willingness to testify at defendant’s trial. She also stated that she did not really expect the fact that she testified at defendant’s trial to affect her eventual sentence. Subsequently, in defendant’s case in chief, defense counsel attempted to call the assistant prosecuting attorney as a witness in order to elicit testimony concerning his plea bargaining with defendant’s cell mate. Specifically, defense counsel wanted to bring out the details of any deals or agreements made by the assistant prosecutor in exchange for the cell mate’s testimony at defendant’s trial and, thus, hopefully impeach the cell mate’s credibility in this matter. As indicated, the trial judge refused to allow defendant to call the assistant prosecuting attorney as a witness. The trial judge based his refusal on his belief that the jury had been made completely aware of the facts surrounding the cell mate’s dealings with the as sistant prosecutor through her testimony during cross-examination, and that no useful purpose would be served by calling the prosecutor as a witness to testify further on the cell mate’s case. The trial judge specifically stated that he did not want to confuse or distract the jury by effectively trying the cell mate’s case during defendant’s trial. The trial judge found that the jury had all the facts necessary for a determination of the cell mate’s motivation and credibility in testifying at defendant’s trial. As noted above, subsequent to defendant’s trial, an evidentiary hearing was conducted, and the assistant prosecutor testified concerning the plea bargaining involved in the cell mate’s case. His testimony paralleled the testimony of the cell mate given during cross-examination at defendant’s trial. He testified that no deal or agreement had been made with the cell mate in order to obtain her testimony at defendant’s trial. He expressly testified that he had reduced the charge against the cell mate and had not opposed a reduction in bond, based upon the mitigating factors present in the cell mate’s particular case. (The cell mate had allegedly used only a toy gun during the bank robbery.) The prosecutor did admit that, in reducing the bank robbery charge against the cell mate without getting prior approval from his superior, he had not followed office policy. He also testified that the sentencing of the cell mate had been adjourned in order to ensure that the cell mate would testify at defendant’s trial. However, the prosecutor expressly denied that he had made any promises to the cell mate concerning her sentence in exchange for her testimony. Based on the prosecutor’s testimony at the evidentiary hearing, the trial judge denied defendant’s motion for a new trial. The trial judge found that his refusal to allow defendant to call the assistant prosecuting attorney as a witness at trial had not prejudiced defendant in this case. We agree. In arguing that the trial judge committed reversible error, defendant relies on the Michigan Supreme Court decision in People v Reed. The Reed Court addressed a trial judge’s refusal to allow a defendant to call the prosecuting attorney as a witness at a hearing held outside the presence of the jury for the express purpose of discovering any evidence suppressed by the prosecutor which could be favorable to the accused pursuant to Brady v Maryland. The Reed Court held that in this situation the trial judge erroneously limited the scope of the Brady hearing, and that once requested, such a hearing should include all witnesses and all evidence which can reasonably cast light on the question to be determined. [People v Reed, 393 Mich 342, 354; 224 NW2d 867 (1975).] However, we believe the holding in Reed does not apply to this case for two reasons. First, defendant failed to request a Brady hearing at trial. Defendant herein directly attempted to call the prosecuting attorney as a witness in order to find out if any deals had been made with the cell mate. Such an attempt to call the prosecutor as a witness before the jury, as the trial judge noted, is highly unusual and is not analogous to the Brady hearing situation addressed in Reed. Second, defendant never specifically alleged that the prosecutor was suppressing evidence which could be favorable to the defendant in her attempt to impeach the cell mate’s testimony and which the prosecutor was required to disclose. Defendant seemed to want to go on a fishing expedition, in front of the jury, for any information related to the cell mate’s case which could in some way impeach her credibility beyond that which had already been revealed during cross-examination of the cell mate. Such a procedure is inappropriate and threatens to extend far beyond what the prosecutor was required to disclose concerning his dealings with the cell mate. In People v Atkins, the Michigan Supreme Court, in an analogous context, stated: Where an accomplice or co-conspirator has been granted immunity or other leniency to secure his testimony, it is incumbent upon the prosecutor and the trial judge, if the fact comes to the court’s attention, to disclose such fact to the jury upon request of defense counsel. The same requirement of disclosure should also be applicable if reasonable expectations, as opposed to promises, of leniency or other rewards for testifying resulted from contact with the prosecutor. It has been held to be a denial of due process for a prosecutor not to correct the testimony of such a witness against the defendant, where the witness testifies that he has been promised no consideration for his testimony and the prosecutor knows this statement to be false. In regard to this duty to disclose, the prosecutor’s office has been treated as an entity, and the promise of one of its attorneys, even if unknown to the assistant prosecutor trying the case, has been attributed to the state. However, it is one thing to require disclosure of facts (immunity or leniency) which the jury should weigh in assessing a witness’s credibility. It is quite another to require "disclosure” of future possibilities for the jury’s speculation. Indeed, if a prosecutor were required to volunteer that, al though there was no agreement, he intended to recommend some sort of consideration for a witness because the witness was testifying in this and other cases or had corrected his past misdeeds, could this not be viewed as vouching for that witness’s credibility? The focus of required disclosure is not on factors which may motivate a prosecutor in dealing subsequently with a witness, but rather on facts which may motivate the witness in giving certain testimony. Of the latter, this jury was made well aware by means of the thorough and probing cross-examination by defense counsel. More specifically, in People v Lytal, the Supreme Court recently stated: The prosecutor is not obliged to show that no consideration was offered for a witness’s testimony. . . . The prosecutor is only obliged to disclose any consideration offered to or received by the witness. In the within case, all of the essential information surrounding the prosecutor’s dealings with the cell mate were revealed during cross-examination of the cell mate. The cell mate, and the police officer who had dealt with her concerning the information she had in this matter, both testified that no deal or agreement had been made with the cell mate for her testimony at defendant’s trial. The prosecutor’s testimony at the post-trial evidentiary hearing corroborated this testimony. Furthermore, the prosecutor’s post-trial testimony added nothing to the testimony presented at trial concerning the cell mate’s expectations for favorable treatment at sentencing in exchange for her testimony at defendant’s trial. The prosecutor’s testimony merely revealed inferences the jury members would naturally have made on their own concerning the cell mate’s expectations of favorable treatment and her motivation for testifying (i.e., the cell mate hoped she would get probation). We believe that the proper procedure in this case would have been for defendant to have requested a Brady hearing at trial and for the trial judge to have conducted such a hearing in order to determine whether the prosecutor knew of any deals or agreements made with the cell mate in exchange for her testimony. In such a Brady hearing, defendant could have properly called the prosecutor as a witness. However, in this case, a Brady hearing was effectively conducted by the trial judge in deciding defendant’s motion for a new trial. As previously indicated, the prosecutor’s testimony at this hearing revealed that, if he had testified at trial, he would not have provided any significant information which would have aided defendant in impeaching the cell mate’s testimony. We note that it has been generally held or recognized that whether a defendant should be allowed to call a prosecuting attorney as a witness is a matter within the sound discretion of the trial judge. We conclude that, based on the evidence revealed at the post-trial Brady-type hearing, the trial judge in this case did not abuse his discretion in refusing to allow defendant to call the prosecuting attorney as a witness. The prosecutor’s testimony would have been cumulative and would not, beyond a reasonable doubt, have caused any rational trier of fact to vote for acquittal in this case. We also find that defendant’s argument on appeal that the assistant prosecutor should have withdrawn himself from this case pursuant to Disciplinary Rule 5-102 is without merit. The as sistant prosecutor in this case never expected to be called as a witness at trial. He reasonably believed that he could reveal all the relevant facts surrounding the procurement of the cell mate’s testimony and that there were no deals or agreements made with the cell mate in exchange for her testimony through the testimony of the cell mate and the police officer who dealt with her. In such a situation, where the prosecutor was surprised by defendant’s attempt to call him as a witness, the prosecutor is not required to withdraw from the case. If defendant had requested a Brady hearing during trial and testimony at the hearing made it obvious that the prosecutor would be called as a witness, then the prosecutor may have been required to withdraw from the case under Code of Professional Responsibility and Canons, DR 5-102. However, that is not the situation presented here. Therefore, we conclude that the trial judge did not abuse his discretion in refusing to allow defendant to cáll the prosecutor as a witness at trial, and the prosecutor was not required to withdraw from the case when defendant attempted to call him as a witness. Affirmed. 393 Mich 342; 224 NW2d 867 (1975). 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). 397 Mich 163, 173-174; 243 NW2d 292 (1976). 415 Mich 603, 612: 329 NW2d 738 (1982). 81 Am Jur 2d, Witnesses, § 99, p 144. Id.
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Whitbeck, J. Petitioner sought to recover attorney fees in the amount of $50,400 from an estate for services he claims to have rendered on behalf of the decedent, John A. Gaytan, before his death. The probate court ultimately denied petitioner’s claim. This Court initially dismissed petitioner’s appeal for lack of jurisdiction in an order entered August 6, 1996 (Docket No. 196000). The Michigan Supreme Court, in lieu of granting leave to appeal, reversed and remanded to this Court for plenary consideration. In re Gaytan Estate, 455 Mich 869 (1997). We affirm the decision of the probate court, albeit on a ground other than that which it articulated. I BASIC FACTS AND PROCEDURAL HISTORY The decedent was injured in an automobile accident in March 1987 and, as a consequence of his injuries, was rendered a quadriplegic. Priscilla Gaytan (hereafter respondent) contacted petitioner, a former teacher of the decedent who was also an attorney, and informed him of the accident. Thereafter, the decedent retained petitioner to represent him in a personal injury action. According to petitioner, he and the decedent entered into a “standard contingency fee agreement” providing for petitioner’s receipt of twenty-eight percent of all amounts recovered by the decedent. Petitioner eventually secured a settlement on the decedent’s behalf. According to respondent, as a result of this settlement petitioner received in excess of $700,000 in contingency fees and twenty-eight percent of the $7,500 monthly payments made to the decedent to provide for his care. The decedent died in April 1993. Petitioner met with respondent and informed respondent that the decedent owed him $50,400 at the time of his death. Subsequently, respondent approached petitioner about representing the estate in probate proceedings. Petitioner informed respondent that he was not a probate attorney and, hence, was unqualified to represent the estate. Petitioner then refused to represent the estate. Instead, he referred respondent to another law firm. Additionally, petitioner prepared an outline of activities respondent needed to undertake in preparation for probating the estate and, on his own admission, expended “some twenty hours” with respect to the commencement of probate proceedings. In April 1993, respondent filed the necessary paperwork in the Oakland County Probate Court to commence independent probate proceedings and to have herself appointed as the personal representative of the estate. During June and July 1993, after discharging the first firm that she had retained to represent the estate, respondent contacted several attorneys about representing the estate. Eventually, respondent hired David W. Sommerfeld of the Butzel Long law firm. Respondent informed Sommerfeld when she met with him of petitioner’s claim that the estate was indebted to petitioner in the amount of $50,400. During August 1993, petitioner and Sommerfeld talked by telephone and corresponded concerning petitioner’s claim. Petitioner sent Sommerfeld an invoice for the $50,400 he claimed to be owed, that “detailed,” in general terms, the services that petitioner claimed that he provided. On August 20, 1993, at the request of Sommerfeld, petitioner served respondent with a statement and proof of claim in which he asserted that he was a creditor of the estate and was owed $50,400 by the estate. He also filed a copy of the claim with the probate court and sent a copy to Sommerfeld. On November 3, 1993, respondent served petitioner with a notice of disallowance of his claim. Petitioner then petitioned the probate court for an order requiring the estate to pay his claim on the ground that his claim was allowed by operation of law pursuant to MCL 700.717(1); MSA 27.5717(1) because the notice of disallowance was not filed within the period required by statute, the notice being untimely by two days. The probate court agreed and ordered the estate to pay petitioner’s claim. Respondent filed a motion for reconsideration on the ground that good cause to excuse the delay existed and that the probate court should have conducted a hearing regarding good cause before ordering payment. The probate court conducted an evidentiary hearing regarding the existence of fraud and, after the close of proofs, found that petitioner had not engaged in “intentional fraudulent behavior.” The probate court also found, however, that petitioner had a duty to disclose to respondent that she had a limited time in which to disallow his claim in light of his past professional relationship with respondent, respondent’s continued reliance on his advice, and petitioner’s continued advice to respondent during the summer of 1993. The probate court also concluded that a note petitioner attached to the notice of claim could have misled respondent and resulted in respondent’s not treating the claim as seriously as she should have treated it. In light of these findings, the probate court concluded that good cause existed to excuse the untimeliness of the notice of disallowance. The probate court then ordered a hearing regarding the validity of petitioner’s claim in light of respondent’s disallowance of the claim and petitioner’s continued claim of entitlement to payment of the $50,400. Following this hearing, the probate court concluded that the debt claimed by petitioner was uncollectible in the absence of a writing memorializing the terms of any fee agreement and in the absence of evidence establishing petitioner’s entitlement to payment under theories of estoppel or quantum meruit. H. STANDARD OF REVIEW Questions of statutory interpretation and construction are questions of law. Smeets v Genesee Co Clerk, 193 Mich App 628, 633; 484 NW2d 770 (1992). Questions of law are reviewed de novo. Rapistan Corp v Michaels, 203 Mich App 301, 306; 511 NW2d 918 (1994). m. THE STATUTORY SCHEME EMBODIED IN MCL 700.717(1); MSA 27.5717(1) Petitioner does not challenge the probate court’s ruling that the untimeliness of a notice of disallowance can be excused for good cause. Additionally, petitioner does not challenge the probate court’s determination that the debt is uncollectible in the absence of evidence that the debt existed. Instead, petitioner limits his challenge to a claim that the evidence presented at the fraud hearing did not supply a factual predicate for a conclusion that good cause existed to excuse the untimely notice of disallowance. At the outset, we note that the goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). Judicial construction is precluded where the statutory language is clear and unambiguous. Id. If reasonable minds can differ regarding the meaning of the statutory language, judicial construction is appropriate. Heinz v Chicago Rd Investment Co, 216 Mich App 289, 295; 549 NW2d 47 (1996). If judicial construction is necessary, every word or phrase generally should be accorded its plain and ordinary meaning. In re PSC’s Determination Regarding Coin-Operated Telephones, No 2, 204 Mich App 350, 353; 514 NW2d 775 (1994). Petitioner presented his notice of claim pursuant to MCL 700.710; MSA 27.5710 and MCL 700.712(l)(a); MSA 27.5712(l)(a). Under these statutes, respondent had sixty-three days after the time for original presentation of the claim has expired or after the appointment of the personal representative, whichever is later, to mail to petitioner a notice of allowance or disallowance of the claim. Respondent mailed her notice of disallowance to petitioner on the sixty-fifth day. MCL 700.717(1); MSA 27.5717(1) provides that a personal representative’s failure to deliver or mail a notice of action on the claim to a claimant within this sixty-three-day period shall be deemed an allowance of the claim. Accordingly, as petitioner correctly asserts, by the clear and unambiguous language of subsection 717(1), Frankenmuth Mut, supra, respondent’s failure to comply with the time limits for mailing of a notice of action resulted in petitioner’s claim’s being deemed allowed by operation of law. See also In re Estate of Roddy, 784 P2d 841, 843-844 (Colo App, 1989) (applying analogous Colorado statute that deems a claim as being allowed if the personal representative fails to mail a notice of action within sixty days). MCL 700.717(1); MSA 27.5717(1) also provides, however, that “ [i]f, after allowing or disallowing a claim, the personal representative changes a decision concerning the claim, the personal representative shall notify the claimant.” As indicated above, subsection 717(1) treats a personal representative’s failure to deliver or mail a notice of action within the requisite sixty-three-day period the same as a decision to allow the claim. Thus, we conclude that subsection 717(1) permits a claim that has been deemed allowed as a consequence of the personal representative’s failure to disallow it within the statutory period to be disallowed subsequently by the personal representative. See also In re Estate of Kriehau, 1 Neb App 398, 403-405; 501 NW2d 722 (1992); In re Estate of Roddy, supra at 843-844 (allowing a change of decision to a denial of a claim under analogous state statutes that deemed a claim accepted by the personal representative’s inaction). Accordingly, respondent’s untimely notice of disallowance constituted a notice of respondent’s change in decision under subsection 717(1) with respect to the allowance of petitioner’s claim. In re Estate of Krichau, supra at 403-405; In re Estate of Roddy, supra at 843-844. Therefore, this change in decision triggered petitioner’s right to an adjudication of the merits of his claim upon a timely request for such adjudication filed in the probate court. MCL 700.717(1); MSA 27.5717(1); In re Gordon Estate, 222 Mich App 148, 151-152; 564 NW2d 497 (1997). The probate court allowed petitioner to adjudicate the merits of his claim, following the decision that good cause existed to excuse the untimely notice of allowance. The probate court then later determined that petitioner’s claim should be disallowed in the absence of evidence to establish the existence of any debt owed by the estate to petitioner. Petitioner does not challenge this determination. We hold that the untimely notice of disallowance operated as a proper notice of change of decision by the personal representative. Thereafter, the probate court allowed petitioner to adjudicate the merits of his claim, as he was entitled to do in light of his receipt of a notice of disallowance. Because petitioner does not challenge the probate court’s determination that the claim should be disallowed, petitioner cannot upset the disallowance of his claim by attacking the factual findings that served as the predicate for the probate court’s finding of good cause. Indeed, the issue of “good cause” for a change of decision with regard to a claim by a personal representative is wholly irrelevant in light of the language and operation of MCL 700.717(1); MSA 27.5717(1). Affirmed. Petitioner stopped receiving a part of these latter monthly payments in April 1991. Respondent indicated that petitioner informed her that he had loaned the decedent the money and the decedent had not repaid the loan at the time of his death. Petitioner stated that the decedent owed him the money as a consequence of attorney fees earned and costs incurred between July 15, 1991, and April 19, 1993, in the provision of professional services with respect to personal financial administration and planning, development of Lake Sherwood property, liability for easement and nuisance re Lakeview property, allocation of pip medical benefits to purchase of specialty wheel chairs, allocation of pip medical benefits to experimental surgery, and miscellaneous personal and family matters.
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McDonald, J. (dissenting). Columbus Trombly was indebted to the defendant Munz for lumber. He executed and delivered to Munz a promissory note payable to the Adams Lumber Company, a fictitious and nonexisting company. Before maturity, for value and without notice of the fictitious character of the payee, the plaintiff bank purchased the note from Munz who indorsed it personally and in the name of the Adams Lumber Company, by G. Munz, Pres. In an action by the bank, the defendant resisted payment on the theory that the note was nonnegotiable because it was made payable to a fictitious person of which fact he had no knowledge. The trial court held that the plaintiff was a holder in due course and entered a judgment in its favor. The defendant reviews the case here on error. The questions involved are troublesome, due to the apparent inconsistency of two provisions of the negotiable instruments law (2 Comp. Laws 1915, § 6040 et seq.). A negotiable note must be payable to order or to bearer. The note in question was payable to the order of the Adams Lumber Company. It had all of the other elements of negotiability. On its face it purported to be a negotiable instrument. But it was not payable to order if the payee named therein, was fictitious or nonexisting. The evidence shows that the payee was fictitious and nonexisting. Therefore, though on its face it appears to be payable to order, it was not so payable. Was it payable to bearer? Section 11, paragraph 3, of the negotiable instruments law, says that a note is payable to bearer: “When it is payable to a fictitious or nonexisting person, and such fact was known to the person making it so payable.” 2 Comp. Laws 1915, § 6050. The record shows that when the defendant signed the note in suit, it was not known to him that the payee was fictitious or nonexisting. Therefore the note was not payable to bearer. The British exchange' act makes knowledge on the part of the maker immaterial, and, notwithstanding our statutes, a few of the courts in this country have attempted to follow that rule. But the great weight.of authority interprets paragraph 3 of section 11 to mean just what it says. In Harmon v. National Bank, 153 Mich. 73, 79 (17 L. R. A. [N. S.] 514, 126 Am. St. Rep. 467), the court quotes with approval the following from Shipman v. Bank of New York, 126 N. Y. 318 (27 N. E. 371, 12 L. R. A. 791, 22 Am. St. Rep. 821) : “We are of the opinion, upon examination of the authorities cited by counsel on both sides, that this rule applies only to paper put into circulation by the maker with knowledge that the name of the payee does not represent a real person. The maker’s intention is the controlling consideration which' determines the character of such paper. It cannot be treated as payable to bearer unless the maker knows the payee to be fictitious and actually intends to make the paper payable to a fictitious person.” As the note in the suit was neither payable to order nor to bearer, it was nonnegotiable. The question arises as to what title, if any, the plaintiff got by the attempted indorsement of the fictitious payee. In taking the instrument, it was the duty of the plaintiff to procure a genuine indorsement. A valid indorsement is necessary to pass a negotiable instrument. There can be no genuine or valid indorsement where the payee is fictitious. There was none in this case. The indorsement of Adams Lumber Company by Munz was in effect a forgery. Harmon v. National Bank, supra; People v. Warner, 104 Mich. 337. Being a forgery, the indorsement was wholly inoperative and the plaintiff acquired no title to the instrument. But counsel for the plaintiff contend that having signed the note and put it into circulation, the defendant is precluded from raising the question as to the fictitious character of the payee. They base their contention on the following provision of the law: “The maker of a negotiable instrument by making it engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse.” 2 Comp. Laws 1915, § 6101. This section is evidently for the protection of a transferee who obtains a note by indorsement. It seems to be out of harmony with paragraph 3 of section 11, which section is for the protection of the maker. It is difficult to satisfactorily harmonize these provisions of the law. If a maker be conclusively bound by the admissions in section 62, there would be no circumstances in which he could raise any question as to the fictitious character of the payee. Every note payable to the order of a fictitious payee would be payable to bearer, and the fact that the maker was ignorant of the fiction would have no effect upon its negotiability. If such were the rule, paragraph 3 of section 11 might’as well be eliminated from the statute, for it would be wholly inoperative. These seemingly conflicting provisions of the law ought to be so interpreted as to give effect to both of them if possible. We think it is possible to do this by adopting the view that section 62 was intended to apply to all negotiable instruments payable to order and to those instruments payable to the order of a fictitious payee where the maker had knowledge of the fiction. The latter instruments are treated as payable to bearer. They are the only instruments that are payable to bearer where the payee is fictitious. They are negotiable and are intended by the maker to circulate. Now, if a maker signs and puts into circulation a note’ which he knows is payable to a fictitious person, he is required by section 62 to admit that there is an existing payee with capacity to indorse. Having made these admissions to the world, he ought to be forever estopped from thereafter controverting them. But section 62 could have no application to such paper if the maker did not know that the payee was fictitious. If he did not know of the fiction, it would not be payable to bearer. It would not be negotiable. And if he did not know of the fictitious character of the payee when he signed the note, he would not be precluded by the -doctrine of estoppel from thereafter asserting the truth. Our examination of this question leads us to the conclusion that section 62 has no application to notes payable to bearer except to those notes which are payable to the order of a fictitious payee of which fact the maker has knowledge at the time he signs the instrument. In any event, it is not of great benefit to a transferee, because such notes do not require indorsement. They pass by delivery. In reference to these two sections of the negotiable instruments act, it was said in Robertson Banking Co. v. Brasfield, 202 Ala. 167 (79 South. 651): “How this section harmonizes with subdivision 3 of section 4966, unless it applies to all instruments other than those payable to bearer, we are not called upon to decide; for, as above stated, the check in question was not payable to bearer, and if section 5016 makes Brasfield admit the existence of the payee, Johnson, and his capacity to indorse the check, this would but strengthen the reason and necessity of obtaining a genuine indorsement before paying the check. The section does not make Brasfield admit .that any other than his named payee could properly and legally indorse the check.” It is further urged by counsel for the plaintiff that the defendant is estopped from denying the existence of the payee because of the general rule that, where the name of a party with which a person contracts is one importing a corporation, the person so- dealing with it is estopped from denying its corporate existence. There is no question as to the general rule. See Estey Manfg. Co. v. Runnels, 55 Mich. 130; Doyle v. Mizner, 42 Mich. 332; 5 A. L. R. 1580, and annotations. However, it has no application to the case under consideration. It is true that the name of the payee as it appears in this note is one that imports a corporation, but the defendant had not been dealing with the Adams Lumber Company. He had been dealing with Mr. Munz and was indebted to him for lumber. When he settled' his account by giving this note, Munz named the payee as the Adams Lumber Company. If Munz had used this name in other-transactions outside of and in addition to the one in suit, it would not have been a fictitious name within, the meaning of the statute; and it would make no difference that it had no legal existence as a corporation. The defendant is not here denying the legal existence of a corporation. He is denying that there was a corporation in fact, that there was any person or concern going by that name or using that name.. In other words, he is contending that the name was; entirely fictitious. ] There was competent evidence sufficient to establish the fact that the payee in this note was fictitious or nonexisting. The trial court did not find to the contrary. In giving his reasons for permitting the plaintiff to recover, he seems to have labored under the erroneous impression that, if he held otherwise, the plaintiff would suffer a loss caused by some fault of the defendant. The proximate cause of the plaintiff’s loss is not that the defendant signed a note payable to a fictitious person, but because it purchased the note without ascertaining the identity of the payee named. For the reasons stated, the plaintiff should not recover in this action. The judgment of the circuit court should be reversed without a new trial. The defendant should have costs. Sharpe, J. At the opening of the trial, the defendant Trombly obtained leave to amend his plea of the general issue theretofore filed, by attaching thereto a notice of special defense. In it he stated: “1. The defendant Columbus Trombly will show that the defendant the Adams Lumber Company is a nonexistent, fictitious person. “2. The defendant Columbus Trombly will show that on or about the first day of May, 1920, he became indebted to the defendant the Adams Lumber Company, or Gustave Munz, in the sum of three thousand six .hundred ($3,600) dollars for lumber furnished by said ■defendant Gustave Munz, or by the Adams Lumber Company. The said Munz at that time representing to this defendant that he was an officer of and a duly authorized agent for said Adams Lumber Company. That on the said first day of May, 1920, this defendant at'the request of said Gustave Munz executed a promissory note in the amount of three thousand six hundred ($3,600) dollars, payable to the said Adams Lumber Company, the said Adams Lumber Company being made payee at the request of said Munz. * * * That this defendant did at various times execute renewal notes to the said Adams Lumber Company at the request of defendant, said Munz, the said ■Munz at each time paying certain sums of money on the principal of said note to the Peoples State Bank, the plaintiff herein. That this defendant had no knowledge at any time that the Adams Lumber Company was a fictitious person.” As a witness he was permitted to testify, over plaintiff’s objection, that he “never had any dealings with the Adams Lumber Company;” that he did not notice that the note was payable to the company; that he did not care to whom it was payable so long as the bill was settled. Later, when recalled, he testified: “When I signed this note I did not know who it was payable to; I handed it to Munz with my name on it; I supposed I owed Munz for lumber; I was paying him something on account and gave this note expecting that it would apply on my account with Munz; I did not notice whether it was paid to John Smith or Henry Jones or the Adams Lumber Company; I saw the name Adams Lumber Company when I signed it; I gave this note and some money as settlement to- Munz; * * * I did not know anything about Adams Lumber Company, or of such a company; I did not know whether there was such a company or not; I signed various renewals of this note and I read it; the one before this last one was payable to Adams Lumber Company; I knew the note was made with the Adams Lumber Company — I gave them a note and when I learned that Munz was fooling me out of what I had coming, I asked him, and I went over to the Peoples State Bank and I was chased out by the manager out of his office when I went in there to investigate after getting his notice of a note protest, then I went and scouted around at the bank and nobody knew about any note made to the Adams Lumber Company, and Mr. Munz called me and asked me to give him a renewal of this note and I told him I couldn’t come down town, that he should mail me the note — here is the letterhead; here’s the way the thing come right back by special delivery — and I would mail him a renewal back which I didn’t do on account I found out he was trying to beat me.” In the notice he stated that Munz informed him at the time the note was given that “he was an officer of and a duly authorized agent for said Adams Lumber Company.” This admission relieved plaintiff from establishing this fact. Circuit Court Rule No. 23, § 6; Rolland Township v. Pakes, 226 Mich. 284, 287, and cases cited. His testimony relative thereto, even if admissible to contradict such admission, is very contradictory. We must consider it in its most favorable aspect to support the judgment. The record discloses that the note was renewed several times. Section 6101, 2 Comp. Laws 1915 (negotiable instruments law) reads: “The maker of a negotiable instrument by making it engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse.” From the record, when considered with this pro vision of the law, I think a fair inference may be drawn that Munz was doing business under the name of the Adams Lumber Company and that Trombly so understood. His failure to comply with the statute regulating the carrying on of 'business under an assumed or fictitious name (2 Comp. Laws 1915, § 6849, as amended by Act No. 263, Pub. Acts 1919 [Comp. Laws Supp. 1922, § 6353]) did not render the contract void. It was— “unlawful and unenforceable at the instance of the offending party only, but not as designed to take away the rights of innocent parties wlm may have dealt with the offenders in ignorance of their having violated the statute." Cashin v. Pliter, 168 Mich. 386, 391 (Ann. Cas. 1913C, 697), quoted approvingly in Pontiac Savings Bank v. Pipe Co., 178 Mich. 261, 264. Trombly knew that he was executing a note payable to the Adams Lumber Company. When he signed the renewals, he knew that Munz was negotiating them at the plaintiff bank. Each renewal was a representation to the bank that he was indebted to the lumber company. He should not now be permitted to avoid liability for the reason stated. The judgment is affirmed. Fellows, Wiest, Clark, and Bird, JJ., concurred with Sharpe, J. The late Justice SNOW and Justice Steere took no part in this decision.
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North, J. This case involves only the question of law as to what right, if any, a township highway commissioner in laying out a highway has to deviate from the exact course described in a petition therefor. This necessitates a construction of section 4289, 1 Comp. Laws 1915. The defendant, as highway commissioner of Colon township, St. Joseph county, was properly petitioned to lay out a highway along the east and west quarter line of section 23. This line for a distance of 80 rods constitutes the northerly boundary of land owned by plaintiffs, and extends through a pond hole located partially on plaintiffs’ land and near the northeast corner thereof. On the day of the hearing it developed that the plaintiffs had no objection to the highway being constructed along said quarter section line; but the plaintiffs did object when it was announced by the highway commissioner that he proposed to deviate to the south from the true quarter section line, and construct the highway past the southerly edge of the pond hole and over adjacent low land belonging to the plaintiffs. By this change the highway would angle south about 4 rods, then parallel the quarter line 121 feet, and then angle back to the quarter line. The commissioner claimed this was a more practical and economical location for building the highway. It was then and is now contended by plaintiffs that the highway commissioner had no authority or discretion vested in him which authorized him to construct a highway except upon the exact line described in the petition. The defendant asserts that he has authority within reasonable limits to ascertain and determine the practical route of the portion of the highway in question. The circuit judge sustained the contention of the highway commissioner; and the plaintiffs, who seek by their bill of complaint to have the highway commissioner restrained from constructing the highway other than on the quarter section line, have appealed. It is stated in counsel’s brief that this exact question has not been decided before in this State. Notwithstanding this, there is in our statutes and decisions so much that is indicative of the rule of law applicable that it hardly seems necessary to seek authority in other jurisdictions. Obviously, if the legislature had intended that no discretion should be vested in the highway commissioner as to the location and manner of construction of a highway, it would have required by statute that the petition for opening a new road should describe its course with exact accuracy. Instead, it is provided (1 Comp. Laws 1915, § 4289) : “In applications for laying out or altering a highway, the route along .which the road is proposed to be laid, or the extent to which its route is proposed to be changed, shall be described in general terms.” * =i= * In Page v. Boehmer, 154 Mich. 693, 696, Justice Blair quoted with approval: “ Tf places are designated which will enable persons familiar with the locality to locate the way with reasonable certainty, the description will be deemed sufficient.’ Elliott on Roads and Streets (2d Ed.), § 337.” The portion of this statute providing for laying out highways between adjoining municipalities expressly provides that the commissioners “acting jointly in laying out any line road may, if they consider it necessary to avoid any obstruction, or for any other good cause, •deflect the line thereof from the boundary line,” etc.; and it is still deemed to be “a line road.” 1 Comp. Laws 1915, § 4300. Evidently it was assumed if the road was not on the line of adjoining municipalities the commissioner would possess the right to “deflect the line” without express statutory authority. Our statute for laying out highways in many respects is similar to that for laying out drains. For many years, though not at present, the drain law (2 Comp. Laws 1897, § 4319) required that the petition give “a general description of the beginning, the route and the terminus.” Numerous cases have held “a general” description of the route was sufficient. Brady v. Hayward, 114 Mich. 326, 331; Hinkley v. Bishopp, 152 Mich. 256, 261; Ranney Refrigerator Co. v. Smith, 157 Mich. 302, 304. And further, under this statute, it has been held: “It is left for him (the drain commissioner) to ascertain and determine the practical route and termini.” Hauser v. Burbank, 117 Mich. 463, 467. There is no logical reason why, under our present highway statute, it should not likewise be left to the highway commissioner “for him to ascertain and determine the practical route.” Any other interpretation of the statute, under certain circumstances, would render construction of a highway difficult, if not impossible. There is an abundance of authority in other jurisdictions sustaining the conclusion that while the highway commissioners must adhere substantially to the route specified in the petition, still they are not bound to follow the same with exact precision. Slight variations in order to procure a more practical route are permissible. People, ex rel. Cecil, v. Carman, 69 Hun (N. Y.), 118 (23 N. Y. Supp. 386); Richardson v. Frontier County, 94 Neb. 27 (142 N. W. 528) ; Neis v. Franzen, 18 Wis. 537; Crowley v. Gallatin County Com’rs, 14 Mont. 292 (36 Pac. 313); Johnson v. Town of Chisago Lake, 122 Minn. 134 (141 N. W. 1115) ; State, ex rel. Limmix, v. Clyde Township Sup’rs, 130 Wis. 159 (109 N. W. 985); 1 Elliott on Roads and Streets (4th Ed.), § 437. The decree of the circuit court is affirmed, with costs to the appellee. Flannigan, C. J., and Fellows, Wiest, Clark, McDonald, Bird, and Sharpe, JJ., concurred.
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McDonald, J. This suit was brought to recover damages for failure to deliver two shipments of shoes valued at $2,000.75. The first shipment containing five cases of shoes was delivered at Brockton, Massachusetts, to the New York, New Haven & Hartford Railway Company for carriage to the Douglas Shoe Company at Ionia, Michigan. This shipment was stolen somewhere on the lines of the New York Central, and consequently was not delivered. The second shipment containing three cases of shoes was delivered and shipped in the same manner and was stolen from the Pere Marquette somewhere between Detroit and Grand Ledge, Michigan. The declaration alleges negligence and conversion. The defense was that the plaintiff could not recover because it had not filed its claim and had not begun its suit in the manner and within the time required by the bill of lading. The case was submitted to the jury on the plaintiff’s theory of negligence. The verdict was against the Pere Marquette Railway Company for $777.25 and against the New York Central for $1,223.25. Suit was dismissed as to the other defendants. Subsequently the court entered judgment for the defendants non obstante veredicto for the reason that the plaintiff had not filed its claim as required by the terms of the bill of lading and had not shown negligence. As to the filing of claims for damages, the bill of lading contains the following stipulation: “Except in cases where the loss, damage or injury complained of is due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, claims must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable .time for delivery has elapsed.” It is conceded that no claim was filed within the time required by this stipulation. The plaintiff contends that the filing of a claim was not necessary because the defendants had knowledge of the fact that the. shoes were stolen in transit and were not delivered. The bill of lading does not provide for the giving of notice, but merely requires the filing of a claim within a certain time. The transportation act of 1920 (41 U. S. Stat. p. 456) makes a distinction between the giving of notice and the filing of a claim, and treats each as a condition precedent to a recovery unless the loss is due to the carrier’s negligence. If it can be said that the carrier’s knowledge of the loss renders the giving of notice unnecessary, it does not follow that such knowledge excuses the filing.of a claim. The purpose of the notice is to give the carrier an opportunity to promptly investigate. The filing of a claim is a demand for the payment of specified damages which the carrier has a right to allow or disallow before suit can be brought. But though this question is argued in the plaintiff’s brief, the action is not based on the theory that the filing of its claim was unnecessary and that the defendants are liable though without fault. The suit is founded on negligence and there can be no recovery unless negligence is shown. The burden of proof is fixed by the pleadings. The declaration alleges negligence. To recover, the plaintiff must prove it by a preponderance of evidence. The burden of proof never shifts. But the burden of proceeding shifts to the defendants if the plaintiff makes a prima facie case. It is the claim of the plaintiff that it made a.prima facie case by showing a delivery of the goods to the defendants and their nondelivery to the consignee at Ionia. There is no doubt about the general rule that the failure to make delivery of goods intrusted to a carrier for transportation raises a presumption of negligence. This is based on the theory that, ordinarily, the goods would have reached their destination and would have been delivered if the carrier had used care in transporting them. But this rule does not prevail where the failure to deliver is accounted for 'by a “cause not in itself tending to show negligence.” Such a cause is fire or theft. There is no presumption of negligence from the mere fact of theft or fire. Knights v. Piella, 111 Mich. 9 (66 Am. St. Rep. 375); Pennsylvania R. Co. v. Dennis’ Estate, 231 Mich. 367; Southern Railway Co. v. Prescott, 240 U. S. 632 (36 Sup. Ct. 469) ; Gillette Safety Razor Co. v. Davis, 278 Fed. 864. See, also, Firestone Tire & Rubber Co, v. Pacific Transfer Co., 26 A. L. R. 217 (120 Wash. 665, 208 Pac. 55), and Beck v. Wilkins-Ricks Co., 9 A. L. R. 554 (179 N. C. 231, 102 S. E. 313), with annotations where the questions of presumption and burden of proof are exhaustively discussed. Applying the doctrine of these cases to the cause before us, it is very plain that from the facts proven by the plaintiff there can arise no presumption of negligence. The defendants offered no evidence, so we must consider the case as the proof stood when the plaintiff rested. It had been established by the evi dence that the goods intrusted to the defendants had not been delivered. It had appeared that they had been stolen in transit. The fact of the theft had been stipulated by the parties, but the circumstances attending it were not shown. Circumstances under which the goods were stolen might be such as to permit an inference of negligence. But here the plaintiff failed to show anything further than the fact that the goods had been intrusted to the carriers' for transportation and had not been delivered to the consignee because they had been stolen. As mere theft does not raise a presumption of negligence, the plaintiff did not make a prima facie case. The circuit judge correctly so held. No claim having been filed as required by the stipulation in the bill of lading, and no negligence having been shown, the plaintiff cannot be permitted to recover. The judgment is affirmed, with costs to the defendants. Flannigan, C. J., and North, Fellows, Wiest, Clark, Bird, and Sharpe, JJ., concurred.
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Fellows, J. (after stating the facts). This court has quite consistently held that mutual insurance companies such as defendant insure only their members, and that membership in such companies may not be obtained by estoppel, the latest speaking of the court being in the case of Crank v. Insurance Co., 239 Mich. 642. But plaintiffs do not claim to be members by estoppel. They claim to be members by reason of the provisions of section 14. They claim that from the death of their ancestor they have continued to pay all assessments levied pursuant to section 19 of the charter, none of which were tendered back until the day of the trial, have taken out additional insurance, and have, therefore, continued their membership granted by that section. While defendant’s secretary testifies that defendant has not relied on the provision of section 24 in cases where the fire occurred before the estate is closed, it is obvious that if defendant’s contention is accepted, on the death of a member the insurance is at an end and what has been done as a matter of grace does, not alter the law. Upon the death of the owner the title passes to the heir subject to debts and expenses of administration. The heir takes title as of the date of that event rather than as of the date of the final order of the probate court, and unless the provisions of section 14 make him a member the policy is forfeited. Forfeitures are not favored in the law and before we give a construction to these provisions which would operate to’ work a forfeiture, we should be pretty well satisfied of our grounds. Section 16 invoked by defendant is manifestly applicable to new policies. To hold that the heir did not become a member until and unless he took all the steps necessary to procure a new policy would render the provisions of section 14 meaningless and of no value. They were placed in the charter for a purpose and we think that purpose is obvious and should be .given effect. ' They were placed there to prevent the lapsing of the policy on the death of the insured, to permit the heir to step into the shoes of the ancestor and by continuing the payment of the assessments to’ continue the insurance in force for his benefit. If the provisions of section 14 had this purpose, and we think they had, it necessarily follows that the. provisions for forfeiture found in section 24 do not have refer ence to a change of title occasioned by the death of the insured. It is suggested rather than urged that plaintiffs took under the will rather than under the statute of descent, and, therefore, were not heirs. But we do not think the word “heirs” should be given so narrow or technical meaning. Speaking of that word, Mr. Justice Cooley, who wrote for the court in Hascall v. Cox, 49 Mich. 435, 440, said: • “But in common speech the word is frequently used to indicate those who come in any manner to the ownership of any property by reason of the death of an owner, and may then include next of kin and legatees as well as those who take by descent.” The judgment will be affirmed. North, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Chief Justice Flannigan and the late Justice Bird took no part in this decision.
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Bushnell, J. These three cases were tried together in the circuit court, and by stipulation were consolidated on appeal. In the first case, Fred E. Olson, a member of the police force of the city of Highland Park, brought an action for compensation for overtime services rendered in excess of 40 hours per week between the dates of November 10, 1940, and May 24, 1943, in the amount of $1,635.29. The circuit judge, sitting without a jury, held that, being an officer of the police department, Olson was not entitled to recover for overtime pay. In the second case, Prances Coulter, a police matron of the city of Highland Park, sought a judgment in the sum of $3,538.92 as compensation for overtime services rendered in excess of 40 hours per week from November 10, 1940, to October 2, 1943. The trial judge held in her action that, because of the provisions of the charter of the city of Highland Park, and the rules and regulations adopted by its police and fire commission, which specifically state in chapter 10, § 6, thereof that police matrons are not members of the police force, that she was entitled to recover such overtime pay. In the third case, Julian P. Russell, a switchboard operator, who performed services for the police department, fire department, and city hall, and claimed compensation for overtime service in the amount of $1,684.22, was given a judgment on the ground that he was a city employee. It should be noted that in the Coulter and Russell cases the amount of overtime compensation allowed was based upon the testimony of Lilias P. Evans, controller of the city of Highland Park, who computed the amount these plaintiffs should receive in the event the court held they were entitled to such overtime compensation. In the Olson case the plaintiff appealed and in the Coulter and Russell cases the city appealed. Olson’s position is that he was an employee and that he rendered overtime service under threat of suspension and because his superior had determined that it was required because of necessity or impairment of city service. He claims he is entitled to additional compensation therefor under the provision of chapter 25, § 33, par. c, of the charter of the city of Highland Park, which reads; "Rate of compensation. The rate of compensation for excess service rendered by any employee of the city of Highland Park of whpm service in excess of the regular service day or the regular service week shall have been required in the case of emergency, as here provided, shall be for Sundays and other holidays twice the regular rate of compensation, and for other days one and one-half times the regular rate of compensation.” The city contends that the trial judge was correct in holding that Olson was not an employee within the purview of this provision of the charter. Olson was appointed as a probationary patrolman on January 28,1936, by the police and fire commission, subject to certain conditions which were satisfied on or before February 3,1936, when his appointment was confirmed. Pie thereafter served, first, as a grade “D” patrolman, and after advancement from time to time became a grade “A” patrolman. He has been paid a regular annual salary, semimonthly, and in addition to the 40 hours per week ordinarily required, has unquestionably put in a large number of hours of overtime service. The record contains some testimony which indicates that the city officials regarded Olson as an employee, and that there was attached to each of his pay checks a stub, entitled ‘ ‘ employee’s statement, ’ ’ on which his net pay was calculated. Under chapter 12, § 2, of the charter of the city of Highland Park the police and fire commission has' general control and management qf the divisions of police and fire service. The powers of the members of the police force appointed by them are recited in chapter 12,. § 12, and include the exercise of powers under the penal laws of the State, the ordinances of the city, and the provisions of its charter, including all the powers given by law to constables for the preservation of quiet and good order and such other powers as are conferred generally upon peace officers of the State. Chapter 12, § 8, of the charter provides that the members of the police force and all employees thereof shall receive such compensation as the council of the city “may subscribe.” The charter further provides in section 6 of this same chapter that the police and fire commission shall, subject to approval by the council, adopt rules and regulations for the organization and conduct of the department. Such rules and regulations were adopted by the commission oh November 2, 1931, and approved by the council on the same date. Under the foregoing provisions of the charter the council from year to year, by ordinance, fixed the annual salaries of all patrolmen and other officers of the department, and Olson was paid accordingly. Whether Olson was an employee or an officer of the city depends primarily upon the provisions of the charter. Millaley v. City of Grand Rapids, 231 Mich. 10. See, also, Blynn v. City of Pontiac, 185 Mich. 35 (8 N. C. C. A. 793). The charter in question, by its language, differentiates between employees of the department and officers thereof. For example, chapter 12, § 3, reads in part: ‘ ‘ The council may also authorize the employment of civilian employees who, however, shall not he considered as members of the police force or fire force as those terms are used in this charter.” In the section with respect to compensation a distinction is made between members of the department and employees thereof. In the regulations the same distinction is made. Members of the police force are entitled to leave days and furloughs, while employees are entitled to vacations. The distinction between employees and officers under comparable provisions to those found in the Highland Park charter is pointed out in the Blynn Case, supra. We have had occasion recently to refer to other distinctions in Fraternal Order of Police v. Lansing Board of Police & Fire Commissioners, 306 Mich. 68. Olson was an officer and not an employee, and in the absence of any provision therefor in the charter, rules and regulations of the department, or ordinances of the city, he is not entitled to overtime pay. We find no such provision and the judgment as to Olson should be affirmed. Frances Coulter, a matron of the police department, was a member of the women’s division thereof. That division consists of police women and matrons. Matrons are required to perform such duties as shall be assigned to them from time to time by the chief of police or their commanding officer. See chapter 10, § 5, of the rules and regulations of the department. Section 6 of this chapter reads: “Police matrons may be appointed special police officers by the commission with full power to arrest. They shall not be members of the police force.” Matrons, not being members of the police force, are of necessity employees of the city. As employees, they are entitled to compensation for overtime services rendered under the provisions of chapter 25, § 33, par. (c), of the charter of the city of Highland Park, and the trial judge so held with respect to the claim of Frances Coulter. The city contends that, because plaintiff Coulter performed services prescribed by the legislature in Act No. 109, Pub. Acts 1897, as amended (1 Comp. Laws 1929, § 2716 et seq. [Stat. Ann. § 5.3301 et seq.1), and in one place therein the term “such office” is used, she was an officer and not an employee. The language of the charter is, however, mandatory and the city should not be permitted to take a position in direct contravention of the mandate of the charter adopted by the electors. The charter amendment for overtime compensation to employees provides for a service day of eight consecutive hours of any one day of 24 hours, and a service week of five days in any consecutive seven days with twice the regular rate of compensation for services rendered on Sundays and other holidays, and on other days one and one-half times the regular rate of compensation for services in excess of the regular service day or regular service week. The city contends that, because article 5, § 29, of the Michigan Constitution commits to the legislature power to enact laws relative to hours and conditions under which men, women and children may be employed (see Grosse Pointe Park Fire Fighters Ass’n v. Village of Grosse Pointe Park, 303 Mich. 405), a charter amendment on this subject, inconsistent with the State law, is void. "We find no conflict between the statutes on the subject and the provisions of the charter; and in the absence of such conflict, there is no legal inhibition preventing the people of a municipality from speaking on that subject by their vote on an amendment to their charter when such amendment is not contrary to State law. School District of the City of Pontiac v. City of Pontiac, 294 Mich. 708, 717. See, also, Attorney General, ex rel. Lennane, v. City of Detroit, 225 Mich. 631; Northrup v. City of Jackson, 273 Mich. 20; and Motorcoach Operators’ Ass’n, Inc., v. City of Detroit, 284 Mich. 321, 328. Plaintiff Coulter was an employee of the city and performed overtime service under the charter provisions for overtime compensation. The judgment in her case is modified as hereinafter noted and affirmed. Plaintiff Eussell was appointed to the position of telephone dispatcher by the police and fire commission and was carried on the pay roll of the division of fire service. His duties were to attend the switchboard which handled incoming calls for the division of fire service and various departments of the city of Highland Park, including calls received over the fire alarm signal'system and the police signal system. The city’s position as to Russell is the same as that taken with respect to Prances Coulter, except that it does not deny that he was an employee. The reasoning in the Coulter case must also apply here, and the judgment in favor of Russell should also be modified and affirmed. The city argues that the acceptance and indorsement of semimonthly 'pay checks constituted “a waiver or release of, or an estoppel to” claims for overtime compensation. We do not accept this argument because of the reasons expressed in Kaminski v. Wayne County Board of Auditors, 287 Mich. 62. The city is not satisfied with the computation made by its controller as to the amount of overtime compensation, and bases its contention in part upon the effective date of the charter amendment. It argues that the amendment in question did not take effect on November 12, 1940, as determined by the trial judge, but on July 1, 1941, and, therefore, the amount of overtime compensation, if any, should be reduced accordingly. The amendment was submitted at the November 5, 1940, election. The affirmative result of the vote was certified and filed with the county clerk and secretary of State on November 12, 1940. The next fiscal year of the city began on July 1, 1941. The city contends that, having made up its budget and having appropriated funds for the fiscal year, it cannot be required to pay additional compensation during the fiscal year beyond the budgetary appropriation merely because the people have so decreed by their charter amendment vote. Section 23 of chapter 25 of the charter provides: “This charter may be amended or revised in the manner provided by the general laws of this State, and may be vacated by majority vote of the qualified electors voting thereon at any regular election or any special election called by the council of the city of Highland Park, and the procedure in such ease shall be the same as is provided by law for the amendment or revision of the charters of cities. This charter shall not be amended, revised or repealed, or. the integrity of the municipal organization and incorporation of the city surrendered, abandoned or lost, otherwise than in the manner hereinbefore provided. ’ ’ The general law, section 24 of the home rule act (Act No. 279, Pub. Acts 1909, as amended [1 Comp. Laws 1929, § 2228 et seq. (Stat. Ann. § 5.2071 et seq.)]), provided: “If the charter, or any amendment thereto,'whether of cities incorporated under the provisions of this act, or under an existing charter of the city heretofore granted or passed by the legislature for the government of the city, be approved, then two printed copies thereof, with the vote for and against duly certified by the city clerk shall, within thirty days after the vote is taken, be filed with the secretary of State, and a like number with the county clerk of the county in which sueh city is located and shall thereupon beeome law.” Section 25 of this act reads in part: “Any proposal or proposals contemplating increased expenditure of funds by the municipality shall beeome effective, if adopted by the electors, only at the beginning of that fiscal year of such municipality commencing not earlier than 60 days following the election at which such proposal or proposals were approved by the electors.” This language, adopted by the legislature as an amendment to the home rule act in Act No. 279, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 2261, Stat. Ann. 1944 Cum. Supp. §5.2104), modified the language of section 24 as to amendments “contemplating increased expenditure of funds by the municipality” in that the charter amendment in question established overtime pay for employees. ' It therefore did not become effective until the beginning of the next fiscal year, July 1, 1941. The judgments in the Coulter and Russell cases are excessive in amount and must be reduced to conform to the period beginning July 1,1941. They ate vacated and each case is remanded for the entry of a judgment in conformity with this opinion. The judgment in the Olson case is affirmed. Because of the nature of the cases, no costs will be allowed. Starr, C. J., and North, Carr, Butzel, Sharpe, Boyles, and Reid, JJ., concurred. 1 Comp. Laws 1929, § 2260 (Stat. Ann. § 5.2103).—Reporter.
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Per Curiam. Defendant appeals as of right from his jury-trial convictions of involuntary manslaughter, MCL 750.321, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. We reverse and remand. I. FACTS On August 10, 2006, defendant was working as a security guard at a Detroit Police Department impound yard in the city of Detroit. That evening, the victim’s cousin dropped the victim off at the impound yard, and the victim entered the yard through a hole in a fence, carrying a duffel bag full of tools. The victim had a history of breaking into the lot and stealing. Defendant became aware that an intruder was in the impound yard. He grabbed a shotgun, loaded it with a bean-bag round, followed by a Brenneke slug, and he pursued the intruder. Defendant eventually found the victim in the passenger seat of a car, tearing out the dashboard. When defendant yelled “Freeze,” the victim threw a tire iron at defendant. The victim then reached into his waistband for an item (which later turned out to be a flashlight) and ran away from defendant. Defendant fired the bean-bag round, which missed the victim. Defendant then fired a warning shot, which apparently struck the victim, although the victim continued to run from defendant. Defendant waited for several minutes and then walked toward where the victim ran to make sure that the victim was gone. Defendant found the victim dead. Defendant then removed the body from the scene to a dirt road in Salem Township. II. VERDICT FORM Defendant argues that the trial court erred in presenting the jury with an improper verdict form. We agree. Claims of instructional error are reviewed de novo. People v Hall, 249 Mich App 262, 269; 643 NW2d 253 (2002). Jury instructions are to be read as a whole rather than extracted piecemeal to establish error. People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001). And even if somewhat imperfect, instructions do not create error if they fairly presented the issues to be tried and sufficiently protected the defendant’s rights. Id. During jury instructions, defense counsel objected to the verdict form, arguing that it did not comply with the standard jury form because the jury was not given the option of finding defendant generally not guilty or not guilty of the lesser-included offenses. The trial court disagreed. The next day, defense counsel again raised the issue, and the trial court again disagreed. The jury was presented with the following verdict form: POSSIBLE VERDICTS YOU MAY RETURN ONLY ONE VERDICT FOR EACH COUNT. COUNT 1 — HOMICIDE — MURDER FIRST DEGREE — PREMEDITATED (EDWARD BROWDER, JR) _NOT GUILTY GUILTY OR _GUILTY OF THE LESSER OFFENSE OF — HOMICIDE — MURDER SECOND DEGREE (EDWARD BROWDER, JR.) OR __GUILTY OF THE LESSER OFFENSE OF — INVOLUNTARY MANSLAUGHTER — FIREARM INTENTIONALLY AIMED (EDWARD BROWDER, JR.) COUNT 2 — WEAPONS — FELONY FIREARM GUILTY _NOT GUILTY The jury was also instructed, and reinstructed, by the trial court about the verdict form as follows: You understand keenly in the verdict form, as to Count 1, the defendant, Mr. Wade, is charged with ... Homicide, Murder in the First Degree, Premeditated. You can either — this is what this instruction is, either Not Guilty or Guilty or you can then consider the lesser offense of.. . Homicide Murder in the Second Degree, if you find the evidence supports that. If you don’t find the evidence supports that and you want to consider the lesser offense, you may go on down to — you may consider the Involuntary Manslaughter, okay. That is — those are your options. You’re only going to check one box. Okay. This is the verdict form, ladies and gentlemen, that you’re going to be getting. The first box, under Count 1, Homicide Murder in the First Degree is Not Guilty. If you find the evidence supports a finding of Not Guilty, you check that box, and then, that’s it for Count 1. Got it? If you don’t, however, find that it supports that finding, and you want to go — continue, you go down to the lesser offense of Second Degree Murder. If you don’t find the evidence supports that, you don’t check that box. Go down to the third — if you find that the evidence supports Involuntary Manslaughter, then so be it. If you don’t, you don’t check that box. It’s very simple. Okay. After deliberations, the jmy returned a verdict of guilty of involuntary manslaughter and felony-firearm. The following exchange occurred during the reading of the verdict: Court Clerk: How do you find the defendant, Michael Wade, as to Count 1? Foreperson: Not guilty. Court Clerk: As to Count 2, Felony Firearm? Foreperson: I’m sorry. We’ve got portions of. The Court: Go ahead. Foreperson: Okay. Count 1, Homicide Murder First Degree, Not Guilty to— The Court: Which box did you check, sir? Foreperson: The bottom box, Guilty of the Lesser Offense of Involuntary Manslaughter. The Court: Okay. So, that’s the box that all the members of the jury checked? Foreperson: Yes. The Court: Okay. You only checked one box? Foreperson: Yes, for that Count. The Court: Okay. That’s what we’re asking you to read. Foreperson: Okay. The Court: Thank you. Foreperson: Guilty of the Lesser Offense of Involuntary Manslaughter, Firearm Intentionally Aimed, Edward Browder, Jr. The Court: Okay. Thank you. Court Clerk: And as to Count 2, Felony Firearm? Foreperson: Guilty. Defendant moved to set aside the jury verdict or for a judgment notwithstanding the verdict (JNOV), arguing that the verdict form was flawed. The trial court denied defendant’s motion in a written opinion and order. The trial court concluded that defendant’s argument was not properly supported by authority and that the verdict form in this case was “self-explanatory” and provided the jury with the appropriate options. “ ‘A criminal defendant is entitled to have a properly instructed jury consider the evidence against him.’ ” People v Hawthorne, 474 Mich 174, 182; 713 NW2d 724 (2006), quoting People v Rodriguez, 463 Mich 466, 472; 620 NW2d 13 (2000). Further, a criminal defendant is deprived of his constitutional right to a jury trial when the jury is not given the opportunity to return a general verdict of not guilty. People v Clark, 295 Mich 704, 707; 295 NW 370 (1940); People v White, 81 Mich App 335, 339 n 1; 265 NW2d 139 (1978). In People v Garcia, unpublished opinion per curiam of the Court of Appeals, issued October 19, 1988 (Docket No. 94233), this Court reversed the defen dant’s second-degree murder conviction because of a defective verdict form. The verdict form in Garcia noted that only one verdict could be returned by the jury and gave the jury the following options: not guilty of first-degree felony murder, guilty of first-degree felony murder, or guilty of the lesser-included offenses of second-degree murder or armed robbery. Id. at 9. This Court concluded that the verdict form was defective, requiring reversal, because it did not give the jury the opportunity to return a general verdict of not guilty. Although this unpublished case is not binding precedent under MCR 7.215(C)(1), our Supreme Court implicitly approved this decision in a subsequent decision, People v Garcia, 448 Mich 442; 531 NW2d 683 (1995). Although the issue before the Supreme Court in Garcia was collateral estoppel, the basis of the defendant’s argument was the jury verdict form. The Supreme Court went so far as to publish the offending jury verdict form, which is very similar to the jury verdict form in the present case. Id. at 445 (opinion by RILEY, J.). Here, we likewise conclude that the verdict form was defective, requiring reversal, because it did not give the jury the opportunity to return a general verdict of not guilty. We note that the verdict form would not have been defective if it had included a box through which the jury could have found defendant not guilty of second-degree murder and not guilty of involuntary manslaughter. Despite the trial court’s efforts to clarify the verdict form with its instructions, because of the way the verdict form was set up, the jury was not given the opportunity to find defendant either generally not guilty or not guilty of the lesser-included offenses such that his constitutional right to a trial by jury was violated. Accordingly, we reverse defendant’s conviction and remand this case for a new trial. III. JUDICIAL DISQUALIFICATION Defendant argues that the trial judge erred in refusing to disqualify herself from this case. We disagree. This Court reviews a trial court’s factual findings on a motion for disqualification for an abuse of discretion, but the application of the law to the facts is reviewed de novo. Armstrong v Ypsilanti Charter Twp, 248 Mich App 573, 596; 640 NW2d 321 (2001). On January 26, 2007, defense counsel engaged in an after-court conversation with the trial judge. During that conversation, defense counsel alleges, the judge said, “Put a badge on a security guard and they think they’re God.” A few minutes later, the trial judge also commented that security guards beat people and then lie about it and deny it. Defense counsel, bothered by the statement, took it up with the trial judge at a side bar exchange on February 2, 2007. The trial judge responded on the record that her personal opinion would not influence the proceedings and she would be impartial. Defendant filed a motion to disqualify the trial judge on the basis of bias and prejudice against defendant and his profession, as well as her bias and prejudice against defense counsel. The trial judge denied defendant’s motion. A judge is disqualified if she cannot impartially hear a case, which includes: (1) when she is personally biased or prejudiced for or against a party or attorney; (2) when she has personal knowledge of disputed facts; (3) when she has been involved in the case as a lawyer; (4) when she was a partner of a party or lawyer within the preceding two years; (5) when she knows that she or a relative has an economic interest in the proceeding or a party to the proceeding; (6) when she or a relative is a party or an officer, director, or trustee of a party; (7) when she or a relative is acting as counsel in the proceeding; or (8) when she or a relative is likely to be a material witness in the proceeding. MCR 2.003(B); Armstrong, supra at 596. Further, as a general rule, a showing of actual, personal prejudice is required to disqualify a judge under MCR 2.003. Armstrong, supra at 597. However, our Supreme Court has acknowledged that “ ‘there might be situations in which the appearance of impropriety on the part of the judge ... is so strong as to rise to the level of a due process violation.’ ” Id. at 599, quoting Cain v Dep’t of Corrections, 451 Mich 470, 503, 512 n 48; 548 NW2d 210 (1996). Therefore, a showing of actual bias is not necessary when the judge (1) has a pecuniary interest in the outcome of the case, (2) has been the target of personal abuse or criticism, (3) is enmeshed in other matters involving the petitioner, or (4) might have prejudged the case because of prior participation as an accuser, investigator, fact-finder, or initial decision maker. Armstrong, supra at 599. Lastly, a trial judge is presumed to be impartial, and the party asserting partiality has the heavy burden of overcoming that presumption. Cain, supra at 497. Here, the trial judge did admit to making an extrajudicial comment about security guards. However, this comment did not evidence an actual bias against defendant. Indeed, generalized hostility toward a certain class of claimants does not present disqualifying bias. Illes v Jones Transfer Co (On Remand), 213 Mich App 44, 65; 539 NW2d 382 (1995) (Corrigan, J., concurring), citing Aetna Life Ins Co v Lavoie, 475 US 813, 820-821; 106 S Ct 1580; 89 L Ed 2d 823 (1986) (holding that a judge’s “general hostility” toward insurance companies did not require disqualification). Here, the trial judge’s comment was directed at a general class to which defendant belongs — security guards; her comments were not directed at defendant specifically. The trial judge explicitly stated that she was not biased against defendant personally and that she could be fair and impartial in this case. And defendant has failed to note any instance in which the alleged bias exhibited itself at trial. Because defendant has failed to overcome the presumption of impartiality, Cain, supra at 497, the trial judge did not err in failing to disqualify herself. We have reviewed defendant’s remaining issues on appeal and find that they are not outcome-determinative. However, we do note, should the issue arise on remand, that the trial court should not allow expert testimony without conducting a hearing to determine its reliability. Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. The parties dispute whether the slug ricocheted before striking the victim. Defendant contends that he fired the shot into the ground, and his ballistics expert supported his contention. However, the medical examiner concluded that the victim’s wounds were caused by two direct shots and one ricochet.
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Starr, C. J. Plaintiff is a duly-licensed and practicing physician in Detroit. Defendant New York Life Insurance Company is a foreign corporation and maintains an office in Detroit. In March, 1937, the company placed plaintiff and his brother, Dr. Stanley Robertson, on its list of approved med ical examiners, their work being the examination of applicants for life insurance. The company could remove them from its approved list at any time. Medical examinations were to be made for a specified fee. They continued as examiners until about November, 1941, when the company removed them from its approved list. Plaintiff and his brother then interviewed defendant Hicks, the supervisor of agencies for the company in Detroit, to ascertain the reason for their removal. Hicks informed them that they had been removed from the approved list because of complaints against them. Subsequently, plaintiff sent more than 100 letters and telegrams to officers, directors, and representatives of the company, seeking information as to the nature and source of the complaints. In September, 1942, plaintiff began suit against the insurance company and defendants Hicks, Baron, Leitman, Slessinger, and Nutting, representatives of the company in Michigan, and defendants Pratt, Campbell, Fraser, and Harrison, who were officers or representatives in New York City. Process was served on the company and on defendants Hicks, Baron, Leitman, and Slessinger, but not on the other defendants. In his declaration and subsequent amendments thereto plaintiff alleged that defendants conspired to and did damage, defame, and slander him by wrongfully and maliciously publishing certain slanderous statements concerning his professional conduct as a medical examiner for the company. He asked for damages in the amount of $3,000,000. The company and the defendants who were served with process severally answered, denying the material allegations as to conspiracy and slander and denying his right to damages. Orders were entered for the taking of. the depositions of plaintiff and defendant Hicks under Court Rule No. 41, §1 (1933). In November, 1943, the insurance company filed motion for a summary judgment, which stated in part: “The grounds for this motion are that no slanderous statement has been made by any person authorized by New York Life Insurance Company so to do, and that there has been no ratification of any alleged slanderous statement by anyone authorized so to do on behalf of New York Life Insurance Company and that plaintiff herein does not know of any facts which constitute a cause of action against this defendant. ’ ’ This motion for summary judgment was supported by affidavits to the effect that the company had not authorized any person to utter the words and statements complained of and had not ratified their utterance. Plaintiff filed objections to the motion, on the grounds that the pleadings raised issues of fact which could be determined only by a trial on the merits; and that he had had no reasonable opportunity to obtain and file affidavits and depositions controverting the facts alleged in the affidavits supporting said motion. The depositions of plaintiff and defendant Hicks were taken, and Hicks also testified at the hearing on said motion. The trial court granted defendant company’s motion for summary judgment, and on December 23, 1943, judgment was entered in its favor. Plaintiff’s motion to vacate the summary judgment was denied, and he appeals. It should be noted that the individual defendants who were served with process did not move for summary judgment, and the case continues in the trial court as to them. The principal question before us is whether or not, under Court Rule No. 30, § 7 (1933), defendant company was “entitled to a judgment as a matter of law, without deciding any controverted issue of fact.” Said court rule provides: “Sec. 7. In any action at law, the defendant may, after issue is joined, move the court for entry of judgment in his favor upon a showing by affidavits or depositions filed in the cause that there is no question of fact to be determined by the court or jury, and that he is entitled to a judgment in his favor. Before judgment is entered, the plaintiff shall be given a reasonable opportunity to obtain and file affidavits and depositions controverting the facts set forth in the affidavits or depositions filed by the defendant. Either party shall be given the further opportunity to cross-examine witnesses whose affidavits have been filed or whose depositions have been taken without affording such opportunity of cross examination. Facts set forth in such affidavits or depositions, which it appears the witnesses could not testify to under the rules of evidence prescribed by law shall not be considered. If it appears to the court from such affidavits and depositions that the defendant is entitled to a judgment as a matter of law, without deciding any controverted issue of fact, the court shall enter such judgment, and the plaintiff may appeal therefrom. Both plaintiff and defendant are to have an equal right to a summary judgment, upon proper proofs.” In considering a summary judgment entered on defendant’s motion, in the case of American Employers’ Ins. Co. v. H. G. Christman & Bros. Co., 284 Mich. 36, 40, we said: “The decisive question before us on plaintiff’s appeal is whether defendants were' ‘entitled to a judgment as a matter of law, without deciding any controverted issue of fact.’ Court Rule No. 30, §7 (1933). See, also, Dempsey v. Langton, 266 Mich. 47; McDonald v. Staples, 271 Mich. 590; and Maser v. Gibbons, 280 Mich. 621.” See, also, Terre Haute Brewing Company, Inc., v. Goldberg, 291 Mich. 401; Laughery v. County of Wayne, 307 Mich. 316. Therefore, we review the record for the purpose of determining whether or not there were issues of fact requiring consideration by a court or jury. Plaintiff’s claim "for damages is based on his allegation that defendants conspired to and did defame and slander him. He testified that.in November, 1941, defendant Hicks informed him and his brother that their names had been removed from the list of approved examiners, because complaints against them had been received at the New York office of the company. Defendant Hicks testified regarding his interview with plaintiff and his brother as follows: “He (plaintiff) seemed to be there for the purpose of finding out who was responsible for taking his name off the examining list, * * * and I told them that I was. * * * The next thing he * * * demanded to know why I had taken this action, and I explained that the company felt that they had the right to put a man on the list as an examiner, and take him off at will, and he pressed me as to * * * what reason they would have for doing it, and I told him that I did not know, but that I had been in New York a number of months before that, and while I was eating lunch with some of the officers of the company, one of the doctors, I believe it was Dr. Pratt, had stopped by the table * * * and in passing, mentioned that some complaint had come in regarding one of the Robertson brothers, and * * # . it was * * * stated then that some woman had complained, but other than that, I knew nothing about it.” The law is established in this State that a corporation is not liable for slanderous statements uttered by its agents, unless it is affirmatively shown that the agent was expressly authorized to make such state ments or that the corporation ratified their utterance. In Flaherty v. Maxwell Motor Co., 187 Mich. 62, 67, we said: “Our examination of the cases satisfies us that the great weight of the authorities holds that a corporation is not liable for slander uttered by its servants unless it affirmatively appears that the agent was expressly authorized to speak the words in question or the corporation subsequently ratified the utterance.” Therefore, upon a trial on the merits, plaintiff could not recover damages against defendant company unless he affirmatively showed that the company either authorized or subsequently ratified the alleged slanderous statements. The question as to the validity of the summary judgment in the present case depends upon whether or not the pleadings, depositions, and testimony taken, presented a question of fact as to whether the company had authorized or later ratified the alleged statements. If an issue of fact was presented regarding such authorization or ratification, then the summary judgment was invalid. The record is convincing that no such issue of fact was presented. Plaintiff’s testimony clearly indicates that there was no basis for his claim that the company was a party to the alleged conspiracy or that it authorized or ratified the alleged slanderous statements. He testified in part: “I claim that the company itself was part of the conspiracy to get rid of me. They could discharge me at any minute they wanted to, but they can’t discharge me with false accusations and smear my reputation. * * * I think the officials of the company slandered me. * * * “Q. * * * Do you feel that the company is involved in it? * * * “A. Yes, because they are covering it all up. “Q. Because they are not coming out and telling you names and dates and places you mean? “A. Absolutely. “They are liable because they are covering it up, there is no reason -why they-shouldn’t be liable. * * * “There v/ere others besides Harry Hicks who were trying to get rid of me, or trying to slander me. * * * “They (agents) made complaints to me about the way I handled my cases, and they called me up and said they never had such rotten business, and that they never had such luck and that they wouldn’t send me any more cases. * * # “Q. * * * The only person that ever said anything to you, insofar as you know, to anyone else, about .the impropriety of you or your brother in making examinations in regard to applicants, was Mr. Hicks, and that was to you and your brother in Mr. Hicks’ office in November of 1941? “A. Well, I don’t know. There was quite a few other people that seemed to find it out, but where they found it out I don’t know. * * * “I don’t know as I would remember any of their names. I had an abscessed tooth for two or three weeks, so I just can’t remember. * * * “Q. And your only complaint there is that they (defendant company) didn’t write back to you and let you know about the complaints? “A. That is right. * * * “Q. Well, you have no evidence in this case that these men slandered you, though? “A. Except their refusal to clear me, and their covering up. “Q. * * * We are clear about that, then. That is your only complaint? “A. Absolutely. “Q. * * * And you feel that when they wouldn’t answer your letters, that they were covering up? “A. Yes, sir. * * * “Q. But you have no evidence that these men, other than that, that these men ever slandered you or conspired against you? “A. No, sir. * # * “Q. Tell me, doctor, of your own personal knowledge who, connected with the New York Life Insurance Company, has conspired against you? * * * ftA. Well, I think that, anybody that would cover up for a person is still aiding him in committing the crime. * * * “Q. So it is because you think that the company is refusing to divulge the names of persons who made complaints, * * * that they are liable? “A. ■ Certainly I do, inasmuch as the libel and the remarks that have been passed have ruined a person’s reputation. * * * “Q. All right, but what words? Now, the only ones that have uttered words, that you know of of your own knowledge, is Mr. Hicks, is that correct? “A. That is correct, as far as to me. * * * “Q. , That is the only one of.which you have any proof? ' “A. Absolutely. “The company and other people in the company are liable because they will not tell me about whether any complaints were made, and if so, by whom; they are the ones that have the complaints, and why shouldn’t they divulge them. * * # “Q. And your belief is that because no one else connected with the company will disclose the nature of complaints, if any, that have been received, * * * that you feel that they are liable? “A. I certainly do. * " * “Q. And you have ‘no other- evidence except that? “A. That is correct. *' * * “If the company covers up the dirt, they are li- 1 able, aren’t they? It is all their officials that did it. That is the evidence I have, that the company’s officials are a partnership in it. * * * “I was told in September of 1941, that there was a frameup, that this fellow overheard the plot, and told me about it the 19th or 20th of September at my own office. ** * “Why should I tell you the name of that person, he would be bought off before the trial of the case, you know the more money the pocketbook holds the more weight it carries. ' That is why I refuse to give the name, I know the company will buy the witness off, they have already started and tried to. * * * “The deposition which I gave on March -8th, the deposition that I heard Mr. Hicks give some time in March in this case, and the deposition which I have given here today, cover all of the facts upon which I rely to show that the company either authorized or ratified the slander or conspiracy complained of in my lawsuit, at the present time. * * * “I think I can acquire some more facts that will prove that the company authorized or ratified the acts complained. But I have not tried at the present time. I do not have those facts in my possession.” We conclude that the record presents no questions of fact as to whether or not defendant company was a party to the alleged conspiracy, or whether it authorized or ratified the alleged slanderous statements. There being no questions - of fact, the trial court properly concluded, as a matter of law, that the company could not be held liable and was entitled to a. summary judgment. Court Rule No. 30, § 7 (1933), under which the judgment in question was entered, ¿pplies to “any action at law” and, therefore, includes tort actions as well as actions upon contract or judgment. Lomba v. General Motors Corp., 303 Mich. 556; Union Investment Co. v. Weil, 269 Mich. 32. We find no abuse of discretion by the trial court in not granting plaintiff’s motion to take the depositions of several of the defendants. Court Rule No. 41, § 1 (1933); Hallett v. Michigan Consolidated Gas Co., 298 Mich. 582; Magel v. Kulczynski, 276 Mich. 424. Under the facts and circumstances shown by the record, the granting of the summary judgment did not deprive plaintiff of due process of law or of other constitutional rights. Peoples Wayne County Bank v. Wolverine Box Co., 250 Mich. 273 (69 A. L. R. 1024). In view of our conclusions, other questions presented do not require consideration. The judgment for defendant New York Life Insurance Company is affirmed. It may recover costs of both courts. North, Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
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Bushnell, J. Separate bills of complaint were filed by plaintiff Indian Village Association, a nonprofit corporation, and certain owners of property located in Park subdivision of that part of the Cook farm, Private Claims 27 and 180, lying between Jefferson and St. Paul avenues in the city of Detroit, to restrain violations of a general plan and a claimed agreement creating building and use restrictions. Four such, actions were tried together, resulting in decrees in favor of plaintiffs. The defendants in two of these cases, i.e., John Lionel Barton and wife, and Frank Hutto, have appealed, it being stipulated that the appeals shall be consoli dated. Plaintiff Indian Village Association has cross-appealed from that portion of the decree which dismissed it from the suits, the trial judge being of the opinion that the association did not possess any interest in the subject matter of the litigation. Plaintiffs’ bills, as amended, .were predicated upon the theory that a great majority of the lots was especially restricted of record, that the doctrine of negative reciprocal easements was applicable to most of the lots, and that as to the remainder, building and use restrictions were imposed pursuant to a general plan for the subdivision. Plaintiffs made no attempt to obtain enforcement of restrictions as to 16 of the lots fronting on Jefferson avenue, and relief was sought only as to lots fronting on Seminole, Iroquois and Burns avenues, which portion was designated as “the restricted district.” The individual plaintiffs owned and occupied homes in the subdivision, which were used as single-family dwellings, at 762, 779 and 1106 Seminole, 1453 Iroquois, and 982 Burns. Defendants Barton and wife are the owners of a single dwelling house located at 776 Seminole, which stands on land next door to the dwelling house of plaintiffs Haigh and wife. It is claimed that Barton and wife, with notice and knowledge of the .general scheme or plan of restriction, began alteration of this single home into a multiple dwelling, designed for the habitation of more than one family, in violation of the general plan and agreement which plaintiffs claim perpetually restricts the use of the property for the dwelling house of a single family only. Defendant Hutto is charged with using the premises at 1116 Iroquois for rooming- and boardinghouse purposes, in violation of the claimed restrictive agreement. Defendant Clara E. Buhl was' joined as a defendant in the Hutto case for the reason that she is the owner of record of the premises occupied by Hutto. The subdivision in question, together with other lands adjacent thereto, generally known as the “Indian Village,” extends from Jefferson avenue to the southerly boundary of Mack avenue. That which is concerned in this litigation prior to 1893 was owned by a number of tenants in common who united in the dedication of a plat in which no restrictive covenants are described. The lots in the subdivision are much larger both in frontage and depth and the streets are wider than those generally found in other portions of the city. When the Cook Farm Company, Ltd., which was organized by the tenants in common, began to sell lots on land contracts a number of these contracts contained restrictive covenants fixing_ front and side building lines and requiring the erection of single dwellings. In no instance was there any construction of any other nature; nor has any of the property, until recently, been used for any other purpose than single residences. So far as spaciousness and cost are concerned, the character of the subdivision is that of a high-class single-family residential neighborhood. The trial judge found as a fact: “That before the time of the partition of the lots in the subdivision and before the dedication of the plat therein, the tenants in common agreed among themselves, whether in writing or verbally is not apparent, that it was to be improved and sold as a highly-restricted subdivision, restricted to dwelling-house purposes only.” He further stated: “The evidence does not show any enforceable agreement as long as it was executory. It does show satisfactorily, to my mind, the existence of an agreement, and this existence is demonstrated by the fact that the parties uniformly lived up to it. “There is no question about the violation of a restriction to the use of these lots for single dwellings on the part of all of the defendants in these cases. The violation is conceded, if there is such a restriction. All of the contracts executed by the Cook Farm Company contain such restriction. Some of the contracts executed by each of the other allottees contain such restriction. The deeds do not contain it but by far the majority of them refer to contracts containing restrictions. The structures built in the subdivision, their nature and location, are persuasive evidence that they were built in accordance with common agreement.” The gist of the reasoning of the trial judge is expressed as follows: “Assuming that this agreement was unenforceable while executory, the moment that the Cook Farm Company sold its first lot by contract containing a restriction it imposed upon itself, as the owner of all of the rest of the lots it owned, the obligation to hold all of them subject to the same restriction. It bound itself not to sell any other lots in its ownership except subject to the same restriction. Its act in making its sales under the contracts which are in evidence in the case and in binding itself as to all the rest of its properties to impose the like restrictions upon them amounted to its part performance of its agreement with the other allottees in the partition proceedings to create a restricted subdivision. It had put itself in a position where it was bound. This was part performance by it of its informal agreement with the other owners and placed it in the position where it could have enforced the agreement of the other allottees specifically under the section of the statute above quoted. (2 Comp. Laws 1929, §13415 [Stat. Ann. §26.910]). Such enforcement was never necessary. The other allottees and their grantees scrupulously observed these terms of the restrictive covenants. That scrupulous observance on their part takes the case beyond a case of part performance under that section and makes it a case of complete performance. The agreement on the part of the original owners in common of this subdivision was not only part performed ; it was wholly performed; and this full performance created, taken together with the antecedent verbal agreement, enforceable restrictions.” Defendants’ claim of estoppel is predicated in part upon lack of enforceability and waiver as to the Jefférson avenue frontage, and that such waiver extended to the entire subdivision. As stated by the trial judge, that portion of Jefferson avenue which extends' across the southerly boundary of the subdivision is commercial in character and there would have been good reason for never restricting this frontage. However, notwithstanding its use, he held that that should not affect the purely residential portion of the subdivision. Defendants Barton purchased their property in 1939, began improvements soon thereafter, and completed them in February of 1940. The alterations inside the Barton dwelling were not such as to challenge the attention of the neighbors. The bill of complaint in the Barton case was filed March 25, 1940, and in the Hutto case on February 1, 1940. We agree with the trial judge that there is no basis for the claim of estoppel and waiver. The controlling question is not as stated by appellants Barton and Hutto, i.e.: “Was there a valid binding agreement entered into between the tenants in common, owners of the lands involved, prior to the year 1895, creating building and use restrictions'?” But, rather, as stated by plaintiffs and cross-appellants, i.e.: “Did the owners of the premises later subdivided as Park Subdivision of that part of the Cook farm, P.C. 27 and 180, lying between Jefferson and St. Paul avenues, Detroit, Michigan, enter into a general scheme or - plan for subdividing, partitioning and selling said premises restricted to use for single dwellings ? ’ ’ Further, was such general scheme or plan carried out and performed, and were “most of the lots” subject to express restrictions of record restricting their use to single dwellings, and as to others, is the doctrine of reciprocal negative easements applicable ? The strongest proof in support of the general plan agreement is the character, appearance, and long-continued use of the property. There can be no question about the fact that for more than 30 years there was no deviation from the single residential dwelling plan and, not until the serious effeet of adverse business conditions in the early 1930’s was there any diminution in the property values in the subdivision. Notwithstanding defendant .Barton’s attempt to use for multiple dwelling .purposes a single home costing probably $60,000 to $80,000 when it was built, and which he purchased for little less than $6,000, the remainder of the neighborhood is still a high-class single residential district. The use of large homes has been rendered somewhat difficult by war conditions, and yet plaintiffs and others continue to maintain their homes in the same manner as formerly. ■ Acute housing conditions in the city of Detroit resulted in the passage of an emergency ordinance, No. 171D, as amended by No. 284 D, effective October 7, 1942, permitting the use of dwellings in certain, districts for temporary rooming-honse purposes, provided no unauthorized physical changes are made in such dwellings, et cetera. The ordinance further provides that permission for such use shall ‘ ‘ expire 30 days after the common council shall have determined by resolution that the need for temporary rooming-house facilities shall have terminated, or in the absence of any such determination, 6 months after the president of the United States shall have declared the period of unlimited national emergency ended.” The trial judge recognized the existing emergency when he answered the question, “What relief is to be, granted?” by saying: “This question addresses itself to the court of equity. As to those parties who have structurally changed the condition of their premises, there is not much that can be said in their favor. They have deliberately gone into a speculation which stands to give them very great profits. They must be held to have gone into it deliberately. At this time, therefore, injunctive relief may issue as against their use of their houses as so altered, with the exception that they may take licenses under the emergency ordinance of the city and in strict accordance with its terms and may use the premises in their present state in accordance with that ordinance. This is an emergency measure and is not intended to last longer than the war emergency lasts. Jurisdiction is retained for further action thereafter.” Restrictions upon the use of property by reason of a general plan have been approved by this court as “a substantial property right which the owners, can maintain and enforce,” in Allen v. City pf Detroit, 167 Mich. 464 (36 L. R. A. [N. S.] 890); French v. White Star Refining Co., 229 Mich. 474; Signaigo v. Begun, 234 Mich. 246; Morris v. Levin, 236 Mich. 490, and others. See, also, Holderness v. Central States Finance Corp., 241 Mich. 604, and Nerrerter v. Little, 258 Mich. 462. The following from the French Case is especially applicable to the instant case: ‘ ‘ The testimony persuades us . that there was a general plan by the Beste heirs to restrict this neighborhood to residential purposes, and that this plan has been adhered to. In the early history of the subdivision, that vicinity was sparsely settled, and not as much attention was given to the restriction when sales were made. Later, as the locality began to develop and be improved, greater care was taken to add restrictions as sales were made by the Bestes. One of the best evidences that it was intended to be a restricted district is the fact that the restrictions have been observed and nothing but dwellings erected. The locality has been invaded by no business. A single exception, however, to this occurred when a tool house was erected on one of the lots, the neighbors purchased the owner’s interest and it was discontinued. While some • lots were restricted and others not, it appears to have been understood and regarded in the neighborhood as a restricted district, and its observance up to the present time will, under our holdings, entitle it to protection as such. ’ ’ We are satisfied from our examination of the evidence de novo that there was a general plan restricting the property in question to use for single-dwelling house purposes only, and that these plaintiffs are not estopped from obtaining injunctive relief. Our conclusion is strengthened by testimony which shows that there were express single-dwelling restrictions in at least 24 deeds and 5 recorded land contracts covering about 34 of the 61 lots acquired in a partition proceeding by persons other than the original subdividers, Cook Farm Company, Ltd. As to the lotk sold by the company, all of its contracts contained provisions that the purchaser would build a single dwelling and would use it for the ordinary and usual purpose of a residence, and not otherwise. Further, with but a few exceptions, the company did not convey title until the single dwelling on the lot described in the deed was completed. More than 120 of the 179 lots in the subdivision were expressly restricted of record. As to other lots, some of the first recorded instruments contain restrictions which would impose reciprocal negative easements upon other lands then owned by the same grantor. See McQuade v. Wilcox, 215 Mich. 302 (16 A. L. R. 997), and Sanborn v. McLean, 233 Mich. 227 (60 A. L. R. 1212). The existence of plaintiff Indian Village Association, a Michigan corporation, should be sufficient answer to the claim of abandonment or waiver. That corporation was organized February 24, 1938, and has been maintained for the purposes expressed in its articles of association as follows: “To promote the development and improvement as a high-class residential district of the territory composed of the lots fronting on Seminole, Iroquois and Burns avenues between Jefferson and Mack avenues in the city of Detroit, county of Wayne, and State of Michigan and, to that end, to conduct litigation for the enforcement of building and use restrictions on property within such territory or any part thereof; to buy, sell, lease, rent, possess, own and manage real and personal property, but not for profit; and to do any other act or thing necessary or suitable to the general welfare and betterment of the said territory, the lots therein, or any of them, and the owners, lessees, purchasers or mortgagees of -such lots, or any of them. ’ ’ The record contains testimony that 6 of the 118 homes in the area were used for rooming-house operations prior to February 1, 1941, 3 of them on a very small scale, and only 3 were in operation at the time of the hearing, and of these, 2 were defendants; 4 others have begun operations since, and 7 have taken out rooming-house licenses under the temporary emergency ordinance. This testimony cannot support claims of waiver and estoppel, and certainly, in the light of the emergency ordinance, does not spell out an abandonment of the restrictions by these plaintiffs. The situation here presented can be distinguished from our recent holding in Kathan v. Stevenson, 307 Mich. 485. In that case plaintiff claimed a general plan restricting property in the Arden Park subdivision (also a high-class residential district) to use and occupancy by white persons only. As said in the Kathan Case: “Evidently original purchasers of lots entertained the idea that the recorded building restrictions called for expenditures which would exceed the then financial means of colored persons. There was no plan or agreement common to all home owners in the subdivision relative to racial use and occupancy of premises. Defendants’ grantors were never parties to any such plan and their property was not subjected to the desires of others on that subject.” The reverse is true in the instant case. There was a plan or agreement common to all home owners relative to the use of premises for single dwelling purposes only. Defendants’ grantors were parties to such a plan and their property was “subjected to the desires of others on that subject.” In view of our conclusion, it is unnecessary to pass upon the cross-appeal of plaintiff Indian Village Association from that portion of the decree which dismissed it from the suits; otherwise the de cree in each case is affirmed, with costs to the remaining plaintiffs therein. Starr, C. J., and North, Butzel, Sharpe, Boyles, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this case.
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Sharpe, J. This is an appeal from consolidated causes of action for damages growing out of the destruction of plaintiff Eobinsons’ premises and contents by fire on March 25, 1943. The material facts are not in dispute. It appears that defendant, township .of Wyoming, is a municipal corporation in Kent county. In 1937, it acquired a piece of property consisting of approximately 57 acres for a public park. The previous owner of this property had removed the gravel. The township improved the property by grading it and establishing drives and roads! As the gravel was removed, a small lake, now known as LaMar Lake, gradually formed. It ran almost the entire length of the present park site along the westerly boundary, covering an area of about six acres. In the process of excavating at the western end, of the present park site, the gravel company found that water interfered with its.. operations and, as a result, a dam was made at the north end of the lake, bringing the ground level at that point up to approximately its original grade for the purpose of holding the water back to prevent it from running into an underpass. -At the same time a drain was installed in the north end of the lake for the purpose of keeping the gravel and sand from wash-" ing onto the railroad tracks in the underpass. In the plans for improving the site for a park, the lake was left in much the same condition as it was when the township purchased the acreage, except that its banks were sloped and the shore line was graded and levelled off to facilitate the use of the lake for bathing. The project was completed in 1940 and opened for public use. In recent years, the lake has had a tendency to rise considerably in the spring and fall of the year. In the spring of 1942, the lake threatened to overflow its banks at the northwest corner. In order to prevent this, the township arranged for the building of a dam around the northwest shore. This bank was constructed by hauling in dirt and sand. During the early spring of 1943, the township engineer visited the site of the dam periodically to inspect it. On March 23d he observed that the top of the dam was approximately 12 inches above the water level in the lake. He again inspected the dam the following day and noted 'that the water had not risen more than a fraction of an inch above what it was the previous day. About noon on March 25, 1943, the township engineer was notified that the water had broken through the dam and was flooding the adjacent area. When he arrived at the dam he noted that the water had washed out a section of the dam about 15 feet wide and the water was flowing in a westerly direction. At this time the water had flooded the rear of the premises of John Van Beek, whose property lies opposite the point of the break in the dam. The water continued to flow and soon reached the property owned by plaintiffs Leonard C. Robinson and wife which lies west of the Van Beek property. Shortly after the water reached the Robinsons’ property, their garage was seen to be on fire. The garage building was of cement block construction with a wooden, peaked roof. It had been built originally in 1928. Later two additions were added. The front part of the building was used for an office and the storage of trucks. There were several oil drums in the garage containing fuel oil used in a Diesel motor. There was also located in the garage a drum containing kerosene. As a result of the fire the garage and much of its contents were destroyed. Leonard C. Robinson and wife and the Boston Insurance Company brought an action against the township for loss of the building. Leonard C. Robinson, doing business as Robinson Cartage Company, Vigilant Insurance Company, and other insurance companies brought an action against the township for loss of personal property on the Bobinsons’ premises. Plaintiffs each filed a declaration on commencement of their actions which were later amended. In the amended declarations they alleged : “8. That for several weeks prior to March 25, 1943, plaintiffs and others had warned the proper officers of the defendant that the waters of LaMar lake, were accumulating in dangerous proportions and that they would overflow and damage the property of the plaintiffs; that on several occasions during the three weeks prior to March 25, 1943, the officers of the defendants visited the scene, and on one or two occasions, dumped a load of sand or gravel along the easterly side of Boys avenue to keep the waters of LaMar lake from flowing across Boys avenue and onto the property of the plaintiffs; that all of said attempts were half-hearted and futile and the defendant well knew that the small amounts of sand and gravel could not withhold a body of water of such vast proportions as LaMar lake, or said officers should have known such fact in the exercise of reasonable discretion. “9. That at all times prior to and including March 25, 1943, it was the duty of the defendant to so construct and operate its park and impound the waters thus artificially collected in such manner that they would not be a nuisance and would not trespass upon and damage the property of the plaintiffs; that it was the duty of the defendant to plan and con- • struct a culvert or system of culverts which would effectively drain away the accumulation of surface and subterranean waters reasonably expected to accumulate in LaMar lake so they would not be east in large and unnatural quantities upon the land of the plaintiffs; and it became and was the duty of the defendant to prevent, by all reasonable means, the artificial creation of a dangerous body of water at a level above the level of plaintiffs’ property, and tlie sudden discharge thereof in large and unnatural quantities upon plaintiffs’ property., ‘ ‘ 10. That the defendant, disregarding its duties, wholly failed and neglected to keep the waters of LaMar Lake confined to its own premises, or properly drained away by suitable culverts, and, on March 25, 1943, without any act on the part of any of plaintiffs which in any manner contributed thereto, the waters of LaMar lake broke away from the insufficient barriers which had been erected along Roys avenue by the defendant and flowed in large quantities across Roys avenue, trespassing upon and inundating the property of plaintiffs to a depth of about two feet with muddy water causing certain electrical wiring leading to appliances installed in and on the premises to develop a resistance or to short-circuit or arc in such a manner as to set fire to .plaintiffs’ building * * * that all of said property was destroyed by the acts of trespass by the defendant and without any fault or negligence on the part of the plaintiffs, or any of them, which contributed in any way thereto.” Prior to the filing of amended declarations, defendant township filed a motion to dismiss plaintiffs’ declarations for the following reason: ‘ ‘ That the basis upon which the plaintiffs ’ suit is brought is the negligence of said defendant and its officers and employees in the maintenance and operation of a public park, and such negligence is not a proper basis for a suit for damages resulting therefrom because the defendant is a municipal corporation and cannot be sued for the negligence of its officers and agents in the performance.of its governmental functions.” The trial court denied the motion to dismiss, quoting as authority therefor Ashley v. City of Port Huron, 35 Mich. 296, 301 (24 Am. Rep. 552), where it is said: “It is very manifest from this reference to authorities, that they recognize in municipal corporations no exemption from responsibility where the' injury ah individual has received is a direct injury accomplished by a ■ corporate act which is in the nature of a trespass upon him.” Thereafter, amended declarations were filed in each case and by stipulation the causes were consolidated for trial. The causes were tried before a jury and a verdict was returned by them in favor of plaintiffs in the sum of $1.6,800. Following the verdict, defendant made a motion for judgment non obstante veredicto based upon the following reasons: “That at the close of the plaintiff’s proofs they had failed to establish by any proof whatsoever the right of the plaintiffs (insurance companies) * ' * * to a judgment against the defendant. The plaintiffs alleged in their declaration that said insurance company plaintiffs are subrogated to the rights of the plaintiffs, Robinsons, and that for that reason are entitled to participate with the plaintiffs, Robinsons, in these suits, but there was not any attempt on the part of the plaintiffs to offer any proof of such subrogation, and for that reason they had no standing in court at the close of the plaintiff’s proofs. ‘ ‘ The defendant is a municipal corporation and as such has an immunity from liability for damages resulting from the torts of its officers and. agents, and for that reason the plaintiffs had failed to make a case against the defendant at the close of their proofs because the claim for damages is based solely upon damages resulting from the tort of the defendant’s agents.and officers in the improvement and maintenance of LaMar park and LaMar lake.” Thereafter, defendant township filed a motion for a new trial because the court failed to instruct the jury on negligence and contributory negligence as well as the law of proximate cause as requested. Plaintiff filed a motion for a partial new trial pursuant to Court Rule No. 47, § 2 (1933), alleging that the verdict of the jury was inadequate and not in harmony with the undisputed evidence submitted in the cause. The trial court denied all motions. Defendant appeals and urges that under the facts in this case, it was necessary for plaintiffs to allege and prove negligence in order to establish a prima facie case. The amended declaration filed by plaintiffs alleges that plaintiffs, Robinson and wife, are the owners of certain real estate; that east of such property, the township of Wyoming owns and operates a park in which is an artificial lake known as LaMar lake; that prior to March 25, 1943, the township had not installed or constructed any culvert or other means by which the waters of the lake could be drained away; that water collected in the lake and was allowed to accumulate in vast quantities until it became a menace to adjoining property owners; that prior to the assumption of control of the gravel pit property an artificial drain took care of the surface waters in said vicinity; that after the lake was constructed, the artificial drain was permitted to become clogged and useless; that for some time prior to March 25, 1943, the township officers had been warned that the waters in the lake were accumulating in dangerous proportions; that it was the duty of the township to construct and operate its park and lake so that they would not become a nuisance and would not trespass upon and damage the property of plaintiffs; and that defendant township disregarding its duties failed and neglected to keep the waters in said lake confined to its own premises. In Ashley v. City of Port Huron, supra, 301, we said: “It is very manifest from this reference to authorities, that they recognize in municipal corporations no exemption from responsibility where the injury an individual has received is a direct injury accomplished by a corporate act which is in- the nature of a trespass upon him. The right of an individual to the occupation and enjoyment of his premises is exclusive, and the public authorities have no more liberty to trespass upon it than has a private individual. If the corporation send people with picks and spades to cut a street through it without first acquiring the right of way, it is liable for a tort; but it is no more liable under such circumstances than it is when it pours upon his land a flood of water by a public sewer so constructed that the flooding must be a necessary result. The one is no more unjustifiable, and no more an actionable wrong, than the other. Each is a trespass, and in each instance the -city exceeds its lawful jurisdiction. A municipal charter never gives and never could give authority to appropriate the freehold of a citizen without compensation, whether it be done through an actual taking of it for streets or buildings, or by flooding it so as to interfere with the owner’s possession. His property right is appropriated in the one case as much as in the other.” In Scott v. Longwell, 139 Mich. 12 (5 Ann. Cas. 679), we said: “According to all authorities, there is imposed upon a person who collects water in an artificial reservoir an obligation to use care ‘proportioned to the danger of injury from the escape.’ See Cooley on Torts (2d Ed.), p. 680.” In our opinion the amended declaration alleges that the damage resulted from defendant’s trespass. In such case evidence of negligence on the part of the agents and servants of the defendant was not necessary in order to establish a prima facie ca'se. Negligence is not a necessary element of this cause of action. Defendant also urges that the township as a municipal corporation while performing/ a governmental function in the construction and maintenance of LaMar park is immune from liability for the trespass or negligence of its officers or agents. The general rule is that a municipality is not responsible for injuries caused by the negligence of its employees engaged in governmental functions. It is also the rule as was stated in Ferris v. Board of Education of Detroit, 122 Mich. 315: “That municipal corporations are not generally held liable, under the common law, for negligent injuries to individuals arising from defective plans of construction of public works or failure to keep the same'in repair; but it is contended that, where the injury is the result of the direct act or trespass of the municipality, it is liable, no matter whether acting in a public or private capacity. We are satisfied that counsel for plaintiff are right in this contention. The plaintiff had the right to the exclusive use and enjoyment of his property, and the defendant had no more right to erect a building in such a manner that the ice and snow would inevitably slide from the roof, and be precipitated upon the plaintiff’s premises, than it would have to accumulate water upon its own premises, and then permit it to flow in a body upon his premises. It has been many times held in this court that a city has no more right to invade, or cause the invasion of, private property, than an individual.” In Elliott v. Carter, 140 Mich. 303, we.said: “That neither the public, in constructing highways, nor private parties for the benefit of their own lands, can turn water from its natural course onto the lands of another, is well settled.” In Township of Blendon v. De Jonge, 181 Mich. 575, we held that a township could not turn crater upon the land of a private individual to his damage. In 38 Am. Jur. p. 352, it is said: “On the other hand, the universal rule that one person cannot change the course of drainage and cast upon the land of another water which naturally would not have flowed there applies equally to- municipal corporations, so that a municipal corporation incurs the same liability as an individual when it damages the land of another person by casting thereon water which would not have flowed there naturally, either by changing the course of drainage, by causing surface water to accumulate and flow onto the land of another person in greater quantities than would naturally have flowed there, or by collecting surface water into artificial channels in such quantities that it overflows onto adjoining property.” From the evidence in the case at bar the jury could find that the township of Wyoming had so constructed its park and lake that the flooding of plaintiffs’ property was a natural result from surplus water flowing out of the breakthrough in the embankment. The facts in this case take it out of the general rule that a municipality is not liable for the negligence of its officers and agents. It is also urged that plaintiffs failed to prove that the insurance companies have acquired an interest in the causes of action. Defendant bases its claim upon 3 Comp. Laws 1929, §14010 (Stat. Ann. § 27.654), which provides in part as follows: “ Provided, further, That where an assignment of a part of a cause of action in tort has been made by an insured to an insurer, both assignor and assignee may join in an action on such claim, and a joint judg merit-shall be rendered for all the damages to which either or both maybe entitled.” In Union Ice Co. v. Railway Co., 178 Mich. 346, we said: ' “We can readily appreciate the fact that it might be of advantage to defendant to be able to show that certain insurance companies would participate in any judgment which might be rendered against it, but we are of the opinion that it had no legal right to do so. Its tort (if one was committed) was against this plaintiff, and the right of action which grew out of the tort was one and indivisible. Continental Ins. Co. v. H. M. Loud & Sons Lumber Co., 93 Mich. 139 (32 Am. St. Rep. 494). The plaintiff undoubtedly was possessed of the substantive right and was the proper party to bring the suit. Had it done so, without executing the various subrogation contracts, it would still necessarily have acted in the capacity of a trustee, as regards the judgment, for the benefit of the insurance companies, in accordance with the terms of the policy contract. The relation would be implied by law. Federal Ins. Co. v. Detroit Fire & Marine Insurance Co., 121 C. C. A. 58 (202 Fed. 648); Southern Bell Telephone & Telegraph Co. v. Watts, 13 C. C. A. 579 (66 Fed. 460); Phoenix Insurance Co. v. Erie & Western Transportation Co., 117 U. S. 312 (6 Sup. Ct. 1176, 29 L. Ed. 873). The defendant is interested only in knowing that a judgment, in the suit brought, will relieve it from all liability for the consequences of its tort. As we have seen, the cause of action is indivisible. No one of the insurance companies could bring an action in its own behalf even in the name of the insured. We conclude that the court properly ruled that the entire question of insurance was immaterial to the issue, and that the defendant is not legally interested in knowing how the judgment against it shall be divided, or whether the contract providing for its division is or is not legally executed.” In Copeland v. Railway Co., 249 Mich. 115, we again had occasion to discuss this problem. We there said: “The question has been presented to this court a number of times in recent years, and the uncertainty' which arose as to the proper procedure to pursue resulted in the enactment of Act No. 271, Pub. Acts 1929, which distinctly provides that the insurance company, in the event of subrogation and assignment, may be joined as a party plaintiff. ’ ’ In the case at bar plaintiffs Robinson and plaintiffs insurance companies have joined together as parties plaintiff to .begin the instant suit. Under the above authorities it is not necessary to establish by evidence that the insurance companies have acquired an interest in the cause of action. There can be only one recovery against defendant township. The township should have no particular interest in the division of the amount recovered. We note that plaintiffs have submitted a motion for a partial new trial on the grounds that the verdict is inadequate. The jury had this question for consideration. There was evidence to support their verdict. The record is not convincing that they were in error. The judgment is affirmed, with costs to plaintiffs. Starr, C. J., and North, Wxest, Butyel, Bush-hell, Boyles, and Reid, JJ., concurred. 3 Comp. Laws 1929, § 14010 (Stat. Ami. § 27.654).—REPORTER.
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Steere, J. Plaintiff, Mateluz (Matthew in English) Kolodziejczak, is a real estate broker in the city of Detroit. Defendants Bak are husband and wife as are also defendants Bednarz. They owned an equipped 160-acre farm in the township of Sumpter (or Van Burén), Wayne county, Michigan. On January 2, 1920, they gave plaintiff an exclusive listing in writing of this property in which the sale price was fixed at $28,000. Down — $22,000. For his services they agreed to pay him “a cash commission of 5%, on the selling price of said property.” Plaintiff drove out to defendants’ farm to secure this listing, accompanied by his brother Michael, who witnessed the instrument and was also in the real estate business officing with his brother, but they were not partners and neither had any interest in the other’s business, as both testified. At the time he secured this listing, plaintiff told defendants of a possible exchange of their property for that of a.man in Detroit named Deboski, whose property consisted of a lot with a building upon it next to the one in which he officed, the downstairs being for business purposes and the upstairs consisting of rooms, or apartments. Some negotiations followed, indicating a probable deal but objections by the defendant wives resulted in that proposed deal then falling through. About that time plaintiff’s brother Michael interested himself in this matter and found a man named Budzik who had a property which he desired to sell or exchange and listed it with Michael, giving him on January 6, 1920, an exclusive listing of it, the price and terms, so far as material, being: “$27,000 cash, or $30,000 cash, balance........... and in case-you find a buyer ready and willing to consummate a deal on the foregoing terms, or in case of sale by you of said above described property during the life of this contract, I agree to pay you 3 per cent, as a commission, and all over the sum of ................received therefor, * * * This agreement shall be in full force for the term above specified, also to continue until I give you........... days’ notice of withdrawal.” (No “term above specified” is stated in the written listing.) This property consisted of a 60-foot lot at the corner of Lumpkin and Andrus avenues in Detroit, upon which was a dwelling house and a bakery with fixtures and equipment for the baking business, including two Ford delivery trucks. Michael conferred with his brother as to an exchange being brought about between their respective clients, and they exerted themselves to that purpose. Negotiations followed, resulting in a contract between defendants and Budzik and wife for exchange, or sale to each other, of their respective properties. This was evidenced by an executed written agreement dated January 7, 1920, detailing the terms of the deal and signed by the contracting parties. By that agreement it was expressly provided as follows: “It is agreed and understood that the parties hereto are depositing one thousand ($1,000.00) dollars note each at the Merchants & Mechanics’ Bank of Ham-tramck, as a deposit to bind this deal and should either party hereto withdraw from this agreement the $1,000 note shall be turned over to the other party as damages. * * * “The parties of the first part agree to pay the agents Michael Kolodziejczak three (3%) per cent, com mission for selling their property and the parties of the second part agree to pay their agent, Mathew Kolodziejczak, five (5%) per cent, commission for selling their property.” This agreement was a trading transaction with boot to be eventually paid by defendants, in order to make the trading prices placed on the properties equal, that stated for defendants being $24,000 and for Budziks $30,000. No money was required to be paid down on this exchange. Giving a mortgage by defendants was contemplated and the first money they were distinctly required to pay directly to Budzik was “interest to be paid within six months from date” on the balance, or “the remaining amount then due on the purchase price of $30,000.” After the agreement and notes for damages in case of withdrawal were signed there was considerable delay in procuring desired abstracts of title, but some time in April, 1920, the two brothers went out to defendants’ farm with a view to completing the transaction. Michael, representing Budzik, testified that he told them “I had the abstract ready and an assignment of contract and was ready to go ahead with the deal. I said T want you to sign with us, else you go with me to the Merchants & Mechanics’ Bank.’ ” They refused to do either and made plain they had decided to withdraw from the agreement. Their reasons are foreign to this issue, as is also the fate of their note for $1,000 deposited with the Merchants & Mechanics’ Bank as stipulated damages in case of withdrawal. Both Budzik and defendants appear to have been adverse to paying the brothers their commissions on this deal which did not go through, and both plaintiff and Michael took prompt action in the circuit court to recover the same under the terms of the agreement of January 7, 1920, in which they were unsuccessful. The result of those cases is disclosed in Kolodziejczak v. Bak, 220 Mich. 274; and Kolodziejczak v. Budzik, 230 Mich. 475. After those cases were commenced both Budzik and defendants independently sold or traded to others their respective holdings described in the agreement of January 7, 1920. The brothers then sought to recover commissions under the earlier general listings of the properties with them by their respective clients. Plaintiff’s first case (reported in 220 Mich. 274) was commenced in the circuit court on May 18, 1920, submitted to this court on his appeal June 13, 1922, and decided October 2, 1922. While that case was pending here and not yet submitted he, on March 21, 1922, commenced the instant case in the circuit court, where an adverse judgment resulted and he has brought it here for review. After plaintiff commenced his first suit against defendants, resting his case upon the. exchange agreement of January 7, 1920, they sold their farm to Deboski, whom plaintiff called to their attention when he obtained his first listing with a view to an exchange of properties which did not materialize. In this case he claims a commission under his earlier listing, on the ground that he produced a customer ready, willing, and able to buy. Defendant’s purchase under that listing was $28,000 with $22,000 down. Deboski was not produced as a witness, and there is no proof that he was then or ever able, willing and ready to buy defendants’ property on those terms. At conclusion of proofs in this case a motion was made by defendants’ counsel for a directed verdict upon which opinion was reserved under the Empson act. Plaintiff had verdict which on motion was set aside by the court and judgment non obstante entered for defendant. It is sufficient to say of the decision reported in 220 Mich. 274, that the court affirmed the judgment against plaintiff on the theory and merits of the claim upon which plaintiff rested and tried his case, but upon a question of pleading merely held the judgment was not a bar to a subsequent action on a count erroneously stricken out, with no suggestion as to the merits of such an action or what the result should be when tried out. An examination of the record in the case of plaintiff’s brother Michael (Kolodziejczak v. Budzik, 230 Mich. 475) discloses that it quadrates in esséntial facts with the instant case, and is controlling here, as the court there said: “Plaintiff by his first suit released defendants from all further obligation to let him sell or exchange their property, and his failure to recover his claimed commission did not revive the listing. • Defendants when sued on the claim that plaintiff had performed his engagement under the exclusive listing had a right to consider the listing at an end regardless of. the result of the suit and to sell their property without paying any further attention to the listing.” The judgment will stand affirmed, with costs to defendants. Bird, C. J., and Sharpe, Fellows, Clark, and McDonald, JJ., concurred. Wiest, J., did not sit. Justice Moore took no part in this decision.
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Butzel, J. On February 26,1927, Della S. Smith, the owner of premises in Battle Creek, Michigan, was sojourning in Florida. Through a real estate agent acting for her she negotiated a lease with the Kroger Grocery & Baking Company, an Ohio corporation. The Central National Bank of Battle Creek also acted as Mrs. Smith’s agent, the business being transacted through the cashier of the bank. The lease contained the provision that the rent checks were to be sent to Mrs. Smith at the Central National Bank, Battle Creek, Michigan. The real estate agent and the bank wired the original proposition to Mrs. Smith, who accepted it and directed that they draw a lease in accordance with the terms proposed. The bank continued to act as agent for Mrs. Smith, though to what extent the record does not show. The lease was on a printed form with interlineations, and provided for the rental of the premises— “For the term of one year; commencing March 7, 1927, at a rental of $65 per month, payable in advance. And at the option of the lessee, for a further term of four years, commencing March 7, 1928, and ending March 6, 1932, upon same conditions except rental to be $75 per month and a further term of five years at a rental of $85 per month. ’ ’ One month prior to the expiration of the initial one-year term, the defendant company mailed a letter to Mrs. Smith, c/o Central National Bank, Battle Creek, Michigan, stating that it had decided to exercise the renewal privilege contained in the lease, and notifying her that it would retain possession of the premises for the further term of four years commencing March 7,1928, and ending March 6, 1932, at the agreed rental of $75 per month, payable in advance. The letter was registered and the return receipt requested was signed by Della S. Smith, Central National Bank of Battle Creek, Battle Creek, Mich., P. J. Ross, cashier. The sole question in the case is whether defendant is bound, by the above act, for an additional term of five years at $85 per month, beginning at the expiration of the four-year renewal term. Many rules of law are invoked as to the construction of the lease. Plaintiff claims that if the terms of a lease are ambiguous, the lease should be construed most strictly against the party who drafted it, and that defendant is responsible for the terminology in the instant case. On the other hand, defendant claims that the terms of the lease are to be construed most strongly against the lessor. Defendant further contends that the practical construction put upon the lease by the parties was such as to show that they believed it to contain two options, one for an additional term of four years, and another for a subsequent term of five years. Frank B. Smith, who upon the death of Della S. Smith and through mesne conveyances, became the owner of the property and the lease, brought the present proceedings on the theory that defendant, by its action, became bound for a renewal term of nine years; that the lease contained only one option which, when exercised, bound defendant to a nine-year obligation, divided into a term of four years at $75 per month, and an additional term of five years at $85 per month. The trial judge stated that it was unnecessary to refer to the various rules of construction applied where the terms of a lease are ambiguous, inasmuch as the terms of the present lease, when fairly read, contained no ambiguity, but meant that there were two distinct options, one for a renewal term of four years, and another for a subsequent additional term of five years; that if the parties had intended otherwise, they would have stated that the renewal term was for nine years, during- the first four of which the rental should be at the rate of $75 per month, while the last five years should be at the rate of $85 per month. We believe the circuit judge was correct, for a fair reading of the lease forces us to the same conclusion. On a suit brought for rent claimed to have become due subsequent to the termination of the four-year renewal term, for a period during which defendant no longer occupied the premises, the trial judge entered a judgment of no cause of action. Judgment is affirmed, with costs to defendant. Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Bushnell, and Edward M. Sharpe, JJ., concurred.
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North, J. Plaintiff’s bill for an accounting and injunctive relief, after bearing on tbe merits, was dismissed and sbe bas appealed. Plaintiff, one of tbe daughters of William Mutb, is tbe executrix of bis estate. He died March 30, 1943, at tbe age of 85. He was survived by one son and three daughters. Pour days before bis death William Mutb withdrew $2,066.89 from an account in tbe Muskegon Savings Bank. This was tbe full amount of tbe account which bad been in tbe joint names of William Mutb and bis daughter Alvina Vance with right of survivorship. Of tbe money withdrawn be banded $1,000 to bis daughter Sophia Wood, herein referred to as defendant. Tbe balance of $1,066.89 be deposited in a newly-opened account in tbe joint names of himself and defendant, with tbe right of survivorship. Of tbe $1,000 received by defendant sbe deposited $500 in a new account in her own name. Tbe balance of tbe $1,000 sbe retained1 and commingled it with other funds belonging to herself and hei husband. Notwithstanding tbe above undisputed facts, plaintiff asserts that her father did not intend to create in defendant tbe right to tbe money deposited in tbe joint bank account in event defendant survived her father; and plaintiff as executrix seeks a decree requiring defendant to account to the estate for tbe money on deposit in tbe joint account and tbe $1,000 received by defendant which defendant claims as her individual property. Plaintiff recognizes that at least as to tbe bank deposit in the joint names of deceased and defendant there is tbe prima facie presumption that this deposit belongs to de fendant as the survivor of her father. Allstaedt v. Ochs, 302 Mich. 232. But plaintiff asserts that the testimony in this case overcomes that presumption and also shows that the $1,000 handed to defendant at the bank by her father was not a valid gift inter vivos. The trial court held against plaintiff. Incident to her claim as to the ownership of the money deposited in the joint bank account, plaintiff and her husband testified that shortly after the death of her father they had a conversation with defendant in which defendant stated the joint account was created as a matter of convenience in that it would enable defendant, who lived in the same household with her father, to have access to his funds for meeting his needs; and further that defendant said after the father’s death the money remaining in the account would belong to plaintiff. Plaintiff testified that defendant said: “Well, Dad said that all the money went to you after death, all the money that was left.” Further, plaintiff testified: “I said, ‘You will have to sign it back to the estate.’ I said, ‘Are you willing?’ She said, ‘I won’t have no trouble about it, but,’ she said, ‘I won’t give you my answer now, but I will let you know later.’” Touching the foregoing conversation defendant testified: “I can’t exactly remember my words because there has been so much argument over it. * * * It was about the money in the Muskegon Savings Bank, but — I don’t know. I had made a statement I didn’t know whether it went to me or the estate or what it was, seeing it was a joint account. ’ ’ In this connection it should be noted that at the time of his death William Muth had a deposit of upwards of $2,000 in the Hackley Union National Bank of Muskegon which stood in the joint names of himself and plaintiff; and this may have been a circumstance which leaves some uncertainty as to the purport of defendant’s statements made to plaintiff and plaintiff’s husband. The proceeds of the Hackley' Union National Bank account were withdrawn from the hank by plaintiff who claims it as her own by reason of her having survived- her father. Another circumstance relied upon by plaintiff as tending to overcome defendant’s right of survivorship in the Muskegon Savings Bank account is that in October, 1942, William Muth provided that all moneys on deposit in any bank at his death were bequeathed to plaintiff. Concerning the issue as to whether there was a valid gift by William Muth to the defendant of the $1,000 above mentioned, plaintiff offered testimony tending to show that at about the same period in preceding years the father had withdrawn $1,000 from his bank account to be used to meet his incidental and current expenses during the ensuing year, and plaintiff claims that was the purpose of the withdrawal of the $1,000 which the father handed to defendant in March, 1943. Plaintiff also offered testimony to the effect that in his lifetime William Muth said: ‘ ‘ that he never would give any money to anyone during the time he lived, because it would only cause trouble.” But the defendant on the other hand, claiming it was a valid gift, offered testimony that upon receiving the money from her father she thereupon deposited $500 in the same bank in an account in her own name and that the balance of the funds she commingled with funds belonging to herself and her husband and used it as her own. Further light on this phase of the case to some extent is afforded by the testimony of the employee of the bank who was acting as teller at the time Mr. Muth closed the former joint account and opened the new joint account in the name of himself and defendant. In part his testimony is as follows: “I got the new signature card, a new bank book, a new ledger card, and they signed them, and then he said he wanted $1,000 of the money in cash and would deposit the rest in that new account, so I gave him the $1,000 and he handed that to Mrs. Wood. * * * Well, when he gave the money to Mrs. Wood she seemed a little reluctant to take it. I don’t remember his exact words, but it seems that he said, ‘Gro ahead, take the money.’ He wanted her to have it. * # * Mrs. Wood left $500 of the money with us. She started a new account in her own name alone for the sum of $500.” It is rather difficult to conceive of any persuasive reason why, when Mr. Muth placed the balance of this account in the joint name of himself and defendant, the additional money should be withdrawn and handed to defendant and that obviously with the father’s knowledge defendant thereupon deposited $500 of the money in a separate account in her own name, unless it was contemplated that this money was a present gift by the father to his daughter. We have not herein attempted to recite all the details of the testimony. Plaintiff’s husband testified that William Muth was hard of hearing, that he spoke very broken English, that his memory was not very good and that sometimes he became lost. But there is other testimony that William Muth possessed to a normal degree for one of his age his full faculties at the time of his death. There is no persuasive testimony of incompetency on the part of William Muth or of any undue influence having been brought to bear upon him which in any way affects the transactions herein involved. Clearly an issue of fact was presented as to the questions here in controversy concerning the joint bank account in the Muskegon Savings Bank and whether or not a valid gift of the $1,000 was made by her father to defendant. Our review of the record satisfies us that the .trial judge’s finding, which was adverse to plaintiff, was correct. The decree entered in the circuit court is affirmed, with costs to defendant. Starr,' C. J., and Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this case.
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Wiest, J. The Nashville State Bank failed and a receiver was appointed. Interveners, directors of the bank, were sureties upon a depository bond of the bank to secure county funds, sought to be relieved from liability on the ground that their undertaking was to be temporary until then pending legislation would authorize the bank to pledge its assets as such depository; that such law was enacted and, while no assets were so pledged, assets in the hands of the receiver should be applied to the satisfaction of their undertaking and the bond canceled. The agreement, if made, to supersede the personal bond by a pledge of assets, could not be carried out because the bank had pledged a large part of its assets to a Grand Rapids bank in order to secure a loan of $25,000. The interveners, sureties on. the $20,000 depository bond of the bank, did not sign the body of the bond, but did sign the .justification, each in the sum of $2,000. Was it necessary to sign the body of the bond? The bond and its accompanying justification by the sureties constituted one instrument and the sureties, having signed the justification, were parties to the bond, even though they did not sign the body of the bond and were not named as such on its face. They justified: “that they are worth in the aggregate in unincumbered property not exempt from execution under the laws of this State, the penal sum of this bond. ’ ’ They were sureties on the bond. Cunningham v. Hawkins, 163 Mich. 317. The sureties claim that their individual liability is not fixed by penalty of the bond but by the amount of their individual justifications. The obligation assumed by the sureties was joint and several and not rendered less than m solido by the justification in severalty for less than the full penalty. The point is made that the board of supervisors authorized the county treasurer to take the bond but never approved of the same after execution. Undoubtedly there. were technical failures to observe the provisions of law; none of which, however, excuse interveners from liability on the bond. See, People v. Johr, 22 Mich. 460; Village of Evart v. Postal, 86 Mich. 325; Buhrer v. Baldwin, 137 Mich. 263; Com’r of Banking v. Chelsea Savings Bank, 161 Mich. 691; Linz v. Eastland County (Tex Com. App.), 39 S. W.(2d) 599 (77 A. L. R. 1466). We quote the syllabus in the last case from the report in A. L. R.: “Statutory provisions vsdth reference to the approval of bonds of depositories of public funds are made for the protection of such funds and not for the benefit of the sureties; and a surety who executes and delivers a bond upon the faith of which public funds are delivered to his principal cannot defend against liability on the bond on the ground that it had never been approved.” See, also, annotation thereon. The fact that the receiver, by direction of the court, redeemed the securities pledged to the Grand Rapids bank did not relate back and inure to release defendants from their obligation on the bond. The-claim in behalf of the sureties that they should have an equitable lien imposed on such securities has no merit. The decree, dismissing the petition of interveners, is affirmed, with costs to plaintiff. Nelson Sharpe, C. J., and Potter, North, Fead, Butzel, and Edward M. Sharpe, ' JJ., concurred. Bushnell, J., did not sit.
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Starr, C. J. Defendants appeal from a decree enjoining them from obstructing a portion of an alley between tbe properties of plaintiffs and de-, fendants in the city of Mt. Pleasant, and awarding damages for its obstruction. As defendants’ brief does not contain a statement of questions involved, as required by Court Buie No. 67, § 1 (1945), it will be stricken from tbe files. Klanowsky v. Colton, 274 Mich. 114. Tbe original plat of tbe village (now city) of Mt. Pleasant, recorded in 1864, dedicated an alley 20 feet in width running north and south between Broadway and Chippewa streets. Lots 17 and 18 of said plat are located on tbe west side and lots 1 and 2 are located directly opposite, on tbe east side of tbe alley, lots 1 and 18 being adjacent to Broadway. In January, 1939, plaintiffs acquired title to tbe east % of lots 17 and 18, and in November, 1941, defendants acquired title to tbe west % of lots 1 and 2. Tbe record indicates that more than 50 years ago a bouse was constructed on tbe property now owned by plaintiffs, which extended and encroached four or five feet on tbe alley, and that this hous¿ was on tbe property at tbe time plaintiffs purchased. Thereafter they constructed another building and a sidewalk, which together extended and encroached approximately 9.4 feet on tbe alley, leaving only tbe east 10.6 feet available for travel and use. Plaintiff’s buildings were used for residence and business purposes. Subsequent to defendants’ purchase of tbe property on tbe east side of tbe alley, tbe residence and garages thereon were removed. Trouble arose between tbe parties over their rights in tbe east 10.6 feet of tbe alley which remained open. Claiming that it bad been abandoned and that, as owners of tbe adjoining property, they bad1 tbe right to close it, defendants blockaded and shut off tbe alley. Plaintiffs then began tbe present suit, alleging that tbe alley bad been used by adjoining property owners and the public for over 50 years and that it had never been abandoned or vacated. They asked that defendants be enjoined from interfering with their use of the alley and for damages resulting from its obstruction. The trial court entered decree requiring defendants to remove all obstructions placed in the alley, permanently enjoining them from interfering with'plaintiffs’ use thereof, and granting plaintiffs damages in the amount of $500. Defendants appeal, and, this being a chancery case, we review de novo. As above mentioned, plaintiffs’ building and sidewalk encroached approximately 9.4 feet on the west side of the alley, leaving only the east 10.6 feet open and' available for use. However, questions relative to plaintiffs’ rights in said 9.4 feet or their liability for encroachment on the alley are not before us in the present case and are not determined. The only question is whether or not defendants have the right to close the east half of the alley and prevent its use by plaintiffs and the public. From the record it appears that that part of the dedicated alley north of the properties of plaintiffs and defendants has never been used to any extent and has. apparently been abandoned by ■ nonuser. However, the record indicates that the parties and their predecessors in title kept the open portion of the alley between their" properties in usable condition by placing gravel and cinders thereon and that they used it for ingress and egress. There was also evidence that garbage haulers, the city, and others had used this open portion of the alley. None of the land in the dedicated alley had been assessed for taxation. The recorded plat was notice to defendants of the dedication of the alley, and the deed by which they obtained title to the west half of lots 1 and 2 expressly provided; “together with all the first par ties’ right, title and interest in the alley along the west boundary of said lots as shown on the recorded plat thereof.” The respective conveyances to plaintiffs and defendants of lands on opposite sides of the alley carried the fee to the center line of the alley, subject, however, to the right of use in common by adjoining property owners and the public. Loud v. Brooks, 241 Mich. 452. Defendants purchased their property with knowledge of the existence of the alley and subject to the rights of plaintiffs therein. Murphy Chair Co. v. American Radiator Co., 172 Mich. 14. The alley had never been vacated by legal proceedings, and from the facts shown we are convinced that the open portion thereof between the properties of plaintiffs and defendants had not been abandoned by nonuser. The fact that plaintiffs and their predecessors in title had encroached upon the west half of the alley did not give defendants the right to close the east half, which had remained open and was used in common. In other words, defendants cannot set up plaintiffs’ encroachment on the west half in defense of their wrongful blockading of the east half. The discontinuance or abandonment of the north part of the alley would not affect the portion kept in use. Gregory v. Knight, 50 Mich. 61. See, also, Wayne County Savings Bank v. Stockwell, 84 Mich. 586-(22 Am. St. Rep. 708). Defendants claim that the alley had been abandoned, that plaintiffs and their predecessors in title were permissive users, and that their permissive use had been revoked. However, the record establishes that plaintiffs.’ use of the alley was not permissive but was by virtue of the recorded and dedicated plat and the long and continued use in common by the predecessors in title of both parties. Wesson v. Tolsma, 117 Mich. 384, In any event, the question of permissive use could not arise, as tlie alley bad not been vacated by legal proceedings or abandonment. We conclude that plaintiffs are entitled to use tbe east 10.6 feet of tbe alley in common with defendants and tbe public. Tbe testimony reasonably establishes plaintiffs’ right to tbe damages awarded them. In view of our conclusions, other questions presented do not require determination. Tbe decree is affirmed, with costs of both courts to plaintiffs. North, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. Tbe late Justice Wiest took no part in tbe decision of this case.
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Steere, J. In 1921 plaintiff was a dealer in horses, located at Hurley, Wisconsin, where he had a sales stable. In February of that year he purchased a car load of horses at or near the village of Deep River, Iowa, for shipment to Hurley. He was experienced in shipping horses by rail and ordered a proper ear for that purpose and season of the year from defendant, a common carrier engaged in intra- and interstate transportation. Defendant provided him an “Arms palace car,” which he approved, and on February 11, 1921, his agent loaded the car for him at Deep River with 32 horses shortly before the passenger train which took the car pulled out. Plaintiff was not present when the car was being loaded, but intended to and did accompany the shipment. Before taking the train he signed, and received his copy of, the contract for transportation filled out and furnished by defendant’s agent at Deep River. The form of contract was one previously adopted, filed with and approved by the Federal interstate commerce commission, and prescribed by it under an order previously made. It was a “nonnegotiable live stock contract (in triplicate)” under the heading “uniform contract for ordinary livestock,” which was to be only used “for the transportation of cattle, swine, sheep, goats, horses (etc.), not chiefly valuable for breeding, racing, show purposes or other special uses.” The shipment is described as “28 head horses” and the total charge is stated to be $423.60. It furnished him free transportation as accompanying owner and was his evidence of right thereto when on the train transporting his shipment. Amongst’other things it provided: “Section 3. The shipper agrees that the express company shall not be liable for the conduct or acts of the animals to themselves, or to each other, such as biting, kicking, goring or smothering, nor for loss or damage arising from the condition of the animals themselves, or which results from their nature or propensities, which risks are assumed by the shipper. The shipper hereby releases and discharges the express company from all liability for delay, injuries to or loss of said animals and paraphernalia, from any cause whatever, unless such delay, injury or loss shall be caused by the express company or by the negligence of its agent or employees. “The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the animals at the place and time of shipment under this contract. * * * “Section 5. Where said animals are accompanied by the owner or an attendant in his employ, the following further conditions shall apply, viz.: The shipper agrees to load, transship and unload said animals at his own risk, the express company furnishing the necessary laborers to assist. The shipper shall take care of, feed and water said animals while being forwarded or transported, whether delayed in transit or otherwise, and the express company shall not be under any liability or duty with reference thereto except in the actual forwarding thereof. The shipper further undertakes to see that all doors and openings in the cars in which said animals are shipped are at all times so closed and fastened as to prevent the escape of any of said animals or injury thereto, and the express company shall not be liable on account of the escape of any of said animals or any injury thereto resulting from open doors or defective ventilation.” * * * The Arms palace car was an express car for horses with side doors and a door in each end and swinging gate partitions inside. Plaintiff said the car was divided into a compartment in each end by a gate or sort of partition in the center. Plaintiff’s agent who loaded the car said there were two .gates in it and “a partition that separated two parts of the car.” -He said he had loaded horses on cars for years and loaded this car with 32 horses, packed in untied, and of the loading he said: “I thought I loaded them right. We always load all the horses we can get in a car. * * * I think horses ship better when they are loaded tight, and I always had instructions to load them that way.” One of the 32 was a saddle horse weighing about 1,100 pounds and the rest were heavy draught horses weighing from 1,600 to 2,000 pounds. Plaintiff said he did not know how many horses there were in the car when they left Deep River, but, being pressed on the subject, said “now, I possibly knew how many horses I had in that car, yes.” ■ The car load of horses left Deep River about 2:50 p. m. taken by passenger trains on which plaintiff was a passenger from Deep River, Iowa, to Ashland, Wisconsin, passing through Mason City and Manly, Iowa, and St. Paul, Minnesota, at which points it was transferred to other trains than the one with which it started. The transfer to another train at Manly was, as plaintiff testified the conductor told him, because the 10-car train which had picked it up at Mason City about 10 miles' south of Manly was “too heavy and they wouldn’t pull it.” The train master of that road testified that owing to power and weather conditions instructions were- not to attempt to handle over 10 cars in that train. The next north-bound passenger train due in Manly two hours later picked the car of horses up, but owing to that delay and a further one caused by derailment of another train, they missed connection at St. Paul with the forenoon east-bound train due in Hurley at 8 p. m., and were taken by the next passenger train for Ashland, leaving St. Paul at 4:15 p. m. and arriving at Ashland on time at 10:45 p. m., which was the end of its run. Before the train crew quit and dispersed at Ashland they spotted the car of horses on a side track near the platform at the end of the station, which was agreeable to plaintiff, who said he “was going to get out of there early in the morning.” When they arrived at Ashland the horses had been, as plaintiff states, loaded on a car between 28 and 30 hours without unloading, which is within the 36-hour limit fixed by the interstate commerce commission. While accompanying this shipment as owner, plaintiff assumed the responsibility of inspecting, caring for, feeding and watering these horses in consideration of free transportation for himself. He made the journey in a passenger ear. He said he went back at different stopping places to look at the horses, but never opened a door of or was in the car carrying them, his inspection of them being from the outside of the car. Of this his agent who loaded, the car at Deep River, and testified to many years of experience both in loading and as caretaker during transportation, was asked and answered in part: “Q. You could look in the car and see the horses? “A. Prom the door, from the side door. What could you see if you did? You might see one horse. “Q. You could see them all, couldn’t you? “A. No, sir, absolutely not. If you opened the side door and looked in you could not see all the horses. The only way to inspect a car to see all the horses would be to go to both sides of the car and open each and every door and inspect them. That would be the only proper way to inspect a car. In that way you could see them all. There is four doors. You would have to open all the doors to see all of the horses.” This plaintiff never did until the train arrived at the depot in Ashland. After its arrival, and before the car was spotted, defendant’s agent met him at the train with hay for the horses and asked him if they were all right, to which he replied in the affirmative. His excuse for not inspecting the horses during the trip in “the only proper way” was that he could not open the doors. He is not shown to have tried to or have asked aid from any of the train crew at any time, and he apparently had no trouble in opening the door at Ashland after the car had been spotted. His testimony as to what then transpired runs in part as follows: “Q. While you were standing there the horses seemed to be all right, didn’t they? “A. They did. “Q. You heard nó noise in the car? “A. Nothing unusual at all. “Q. If a horse was down you say it would be groaning or making some effort to get up? “A. Yes, it would. “Q. When you were talking with Mr. Kramer and Mr. Schulze, you were standing quite close to' the car ? “A. I was leaning up against the car part of the time when I was talking. “Q. Then the engine took that car and put it around at the end of the depot? “A. Yes. “Q. And then the train crew and that engine left? “A. Yes. “Q. Now, when you got the car around to the end of the depot was the first time that you had notice that there was any damage to the horses, wasn’t it? “A. Yes. “Q. About what time was that? “A. Shortly after we arrived; ten or fifteen minutes; something like that. “Q. Ten or fifteen minutes after you arrived. That was after the train crew had left and the engine had gone? “A. Yes. “Q. Now, just tell us what noise you heard and what first called your attention to the horses? “A. After it was set out? “Q. Yes. “A. Before I got up close to the car I could hear a horse moaning. I opened the door. There was a horse down in one end. I could hear them in the other end. I went to the other end and opened that door a little and looked in. There were two down there that I could see. They were struggling and kicking to get up.” The station agent was with him at that time and at his request took immediate steps to get the car moved down to the stock chute for unloading. The train crew was then gone and a switching crew had to be gotten; men had to be summoned for that purpose. A veterinary surgeon was also summoned. With the delays in getting* the men there and the switching engine out, it was some two hours before the ear was properly placed at the stock chute and unloading begun. When the car was finally unloaded five dead horses were found in it, and it is claimed that several of the others were bruised and injured. The saddle horse lay dead in one compartment and four of the heavy draught horses in the other. The veterinary said the saddle horse was badly bloated, his eye was sunken and he had been dead 10 or 12 hours, in his opinion. Of others he replied: “All I can say is that I saw two go down and die. In my opinion they died from exhaustion; they just fought themselves to death. They were all entangled. They had their heads underneath each other.” Plaintiff filed a claim for damages with defendant, which was not paid, and over two years later he commenced this action, asking judgment for $3,000 damages. The case was tried by jury and plaintiff had verdict with judgment for $3,000. Motion for a new trial was denied, and the case is here for review on half a hundred assignments of error. The more graphic and tangible ones relate to refusal of the court to direct a verdict for defendant, urged on the grounds that no actionable negligence of defendant appeared while plaintiff was shown guilty of contributory negligence; that the shipment was interstate and governed by Federal statutes, schedules and tariffs authoritatively approved by the interstate commerce commission as interpreted by the Federal courts, while the trial court submitted the case to the jury without any reference thereto; refusal to' charge as requested; errors in the charge as given; the verdict was against the great preponderance of evidence and excessive. Unquestionably this was an interstate shipment, and the contract under which the consignment was transported was authorized by and within the scope of the Federal transportation act, to be construed in harmony with that act under the regulations, rates, and rules promulgated pursuant to it by the interstate commerce commission, which, so far as applicable, became a part of the contract. In so far as the court correctly instructed .the jury as to the rights and duties of the parties under the contract, where not affected or modified by the Federal act or authorized regulations and rates of the interstate commerce commission, failure to'name the source of the rules of law given for the jury’s guidance may be regarded as immaterial. We are impressed, however, as will be later discussed, that the court prejudicially ignored the import of certain of those rules and regulations when charging the jury as to the measure of damages. Upon the conflicting testimony as applied to the contractual rights and duties of the parties, the court correctly left both the questions of defendant’s negligence and plaintiff’s contributory negligence to the jury, limiting the former under plaintiff’s own testimony and the undisputed facts- to the issue of defendant’s conduct in moving and switching the load of horses after it arrived at Ashland in such a careless and negligent manner as to result in the injury of which plaintiff complains. As applied to this contract, there is no conflict between the Federal and State laws upon those propositions. As to plaintiff’s negligence, there is no proof of any ■collision, violent switching, or other negligent moving of this car by defendant before it reached Ashland. In consideration of free transportation furnished plaintiff to accompany this car load of horses as caretaker, he contracted to load and unload them, look after the doors and openings in the car, take care of, feed and water the animals while being forwarded, whether delayed in transit or not, and also that defendant should' not be liable for the conduct or acts of the horses to themselves or to each other by biting, kick ing or smothering, nor for any loss or damage arising from their condition or propensities. Having assumed that responsibility, he, as their caretaker during the trip, testified the horses were all right when they arrived at Ashland. If they were not, that fact is imputable to his negligence or the acts and propensities of the animals themselves. That a contract of this • kind is valid, both as to intra- and inter-state shipping of stock where the owner or his agent accompanies the shipment, is settled law. The reason for so recognizing it is stated in 1 Hutchinson on Carriers (3d Ed.), § 336: “Animals may injure or destroy themselves or each other; they may die from fright or from starvation, or they may die from heat or cold. In all cases, therefore, where injuries occur by reason of the inherent vices or natural propensities of the animals themselves, the carrier is relieved from responsibility if he can show that he has provided all suitable means of transportation, and exercised that degree of care which the nature of the property requires. And the opinion has been frequently expressed that, owing to these peculiarities of such freight, the carrier in its transportation was not to be considered as assuming the responsibilities of the common carrier, and that it was always competent for him to- make his own terms upon which he would consent to carry it.” Where under a contract of free transportation the owner and shipper accompanies the live stock as caretaker he has the same or better knowledge than the carrier of the conditions and needs of the stock while in transit. If plaintiff had opened the doors at various stopping places during the journey he could have inspected all the horses in the “only proper way” and made certain his assertions that they were all right. He admits that he did not do this. His equivocal excuse for not doing so because he could not open the doors is without force. His agent loaded the car, fixed the ventilators and the doors. He opened them readily at Ashland. If he met any difficulty in doing so before then, defendant’s agents were at his service and he made no appeal to them. The question of his contributory negligence was properly submitted to the jury. Early in the charge the court instructed the jury as to the burden of proof and preponderance of evidence, followed by the statement: “The plaintiff, before he can recover, must prove that there was negligence on the part of the defendant company in one or more of the respects charged in the declaration, that such negligence was a proximate cause of the injury, and that he himself was free from any negligence which contributed to the injury. This instruction you will bear in mind as you go along and as I go along. * * * And in the transportation of the horses the defendant company was not, as it would be in the case of an ordinary shipment of inanimate chattels, an insurer, but was relieved of an insurer’s liability. * * * The mere proof of delay is not proof of negligence, and the mere fact that this car of horses was not attached to the first passenger train out of Manly, Iowa, after reaching Manly, is not proof of such negligence. It was, as stated, however, the duty of the defendant express company to transport the horses with reasonable despatch, and the railway companies in transporting the horses acted as agents of the express company, so that the express company_ would be bound for the negligence, if any, of the railway companies, or any of them, in and about the transportation of the horses.” Later in the charge, while submitting the question of defendant’s negligence at Ashland to the jury, the court said: “I do not think there is any evidence in this case upon which you could predicate liability on the part of the express company on the mere fact of delay alone, even though you conclude there was a negligent delay, but if there was a negligent delay you would Have a right to take that into consideration in determining what effect it would have upon the horses if the horses were negligently delayed at Ashland, in the consequence one of them fell and a stampede or anything like that occurred.” There was testimony to go to the jury upon defendant’s claimed negligence in handling the car of horses after its arrival at Ashland. Plaintiffs testimony upon that subject is in part as follows: “Q. Now, Mr. Shier, when they unhooked that car at Ashland, tell the jury the manner in which that car was switched up the yard? “A. Well, they were very anxious. The conductor, I do recall of him coming to me and saying they would have to get rid of this car right away, because they were in a hurry to get home, or their time was up or something; I don’t recall just what it was. They took the car. When they hooked on to the train they went down some place in the yard with it. They weren’t gone very long. They went from there in a hurry. I was standing right alongside of them. “Q. Did they handle that car in what you consider a careful manner at that time, Mr. Shier? “Mr. H — : I object to that as calling for a conclusion of the witness. “The Court: He may state how they handled it. “A. They handled it, in my estimation, very rough. “Mr. IT — : I move to strike that out as irrelevant and incompetent. It is a conclusion, a voluntary conclusion of the witness. “Mr. M — : That is about the only answer the witness could give to such a question. It isn’t a conclusion. “The Court: The answer may stand. * * * (Cross-examination.) “Q. You say in your opinion they handled that car roughly; what do you mean by that? “A. They hooked right on to it and started right off in a hurry and set the car out. “Q. That is all there was to it? “A. That is all I seen of it. “Q. You didn’t stop to see whether they jerked the ear or not? “A. They started off — they started off in a hurry. I have railroaded a little myself in the woods. “Q. They started off in a hurry? “A. Yes, they did. They handled it pretty rough. “Q. At that time you hadn’t noticed that there was anything wrong with the horses? “A. I don’t think there was anything wrong with them then. “Q. You think that all the damage was done after that? “A. Yes, sir, setting them out; it surely was.” Kramer, defendant’s agent at Ashland who met the train on its arrival with some hay to feed the horses, testified that he stood by the side of the car with plaintiff when it arrived and there was no noise in the car; it was suggested everything seemed all right and the car be put on the tracks where they could get to the horses and feed them; the train crew then took the car and switched it on to that track and left ; that they then went up to the car to open it; there was a great racket in it as they did so, and as soon as they got the door partly opened they could see a big grey horse down by the door,— “there was stampeding and a great deal of noise in the car and something had to be done right away. Mr. Shier made the remark that the car would have to go to the stock chute. I also knew that horse car would have to go to the stock chute. “Q. What did you do? “A. I went into the office and telephoned Mr. Frye. He is assistant agent for the Omaha and calls out the crews. “Q. And what time was that? “A. About 11:10. * * * There was one fireman in the office. I told him that that fireman was in the office and he said that it would be O. K. to call out that crew. That crew wasn’t the same crew that brought in this passenger train. It was a different crew. Frye called back in just a few minutes and said I could not have a new switch crew. I told him I had to have somebody right away, that we would be in trouble on that car of horses, that he had to come down and take care of me. Mr. Frye came down to the office. * * * The new train crew which Mr. Frye ordered out was at the depot at 12 o’clock, that is the engine crew which was going to take the horse car from the track and put it to the stock chute. * * * We started unloading about 12 o’clock, just a little bit after midnight. When' all of the horses were out of the car it must have been about 3 o’clock. * * * After the horses were unloaded it was about 6 o’clock in the morning that I met Mr. Shier, and I had my men there, and we took these horses down to Hanley’s barn from the stock chute. * * * It was dark and it was cold. * * * I wouldn’t have got in the car. The horses were standing and kicking. It was taking a big chance.” With this testimony that the horses were quiet and all right when the train arrived at a late hour in a' cold winter night, that the train crew was in a hurry to get home and when they hooked on to the car to switch and spot it on the side track, started right off in a hurry, handled it pretty rough, weren’t gone very long, and then left in a hurry, and right after the car was spotted some of the horses were found down, while the rest were found in confusion and “stampeding,” we think there was evidence to carry the question of defendant’s negligence to the jury. Defendant’s counsel urges there was not, because plaintiff’s statement that they handled the car “very rough” was a mere conclusion. He had some experience in railroading and applied that description to what he saw. “Rough” or “roughly” is defined as careless — hasty— crudely done — rudely—characterized by violent or disorderly action. (Cent. Diet.) Courts have been content to refer to negligent switching as “rough handling” of the car. Jeffries v. Railway Co., 88 Neb. 268 (129 N. W. 273). Reversible error is urged against the above quoted portion of the charge in which the court allowed the jury to consider the delays in movement of the cpr which defeated its direct connection at St. Paul with a train which would have reached Hurley at 8 o’clock on the evening of that day. This was expressly limited to its bearing upon defendant’s claimed negligence in handling the shipment at Ashland. While it is true that under this contract defendant was only bound to transport the stock with reasonable despatch and care in operating its means of transport, it was competent to show, as bearing upon the situation which arose at Ashland, both the time consumed on that particular trip and the customary time taken for such transportation. Young & Co. v. Railway Co., 201 Mich. 39. This, was an express shipment to be carried in connection with passenger trains. The scheduled train connections, if made, would have delivered the shipment at its destination in Hurley over two hours before it reached Ashland. Plaintiff had shipped express consignments of horses over that route before and connected through to Hurley on time. He testified that when he had on several previous occasions taken loads of horses over that run “we got into Hurley at 8 o’clock.” He reassured himself on this occasion by asking the agent at Deep River, who, he testified, told him the shipment would be in Hurley at “8 o’clock the following evening.” The admission of what the agent told him is urged as error, because “the verbal agreement of an agent to transport stock by a particular train at a particular time is void.” That such a verbal agreement is void may be conceded, as applied to interstate shipments under the Federal act to regulate commerce. Had the trial court held the reply by the agent a binding agreement, it would have been error. The court did not, however, instruct the jury that it could be considered as evidence of a binding agreement, but that the parties were bound by the terms of their written contract which was explained at length. Proof of plaintiff’s inquiry and the agent’s answer were not admitted as evidence of a contract, but for its possible bearing on what followed. It was competent for the jury to consider as bearing on the question of plaintiff’s contributory negligence. Upon that subject defendant’s counsel went at length into details of the trip, covering plaintiff’s conduct from the beginning both as to what he did and failed to do, and what he said to defendant’s agents and they said to him. Defendant knew that owing to its lack of available power and weather conditions the train with which the car first connected after starting on the trip was so often incapable of meeting the demand that orders had been promulgated limiting the number of cars it should take, which was liable to, and did, result in this shipment of horses being delayed. It was defendant’s duty, when proper inquiry was made of its agent before the consignment started, to truthfully advise plaintiff of the situation. The court did not hold failure to do so actionable negligence, but, on the contrary, instructed the jury that liability could not be predicated on any delay prior to the arrival of this car at Ashland, and only permitted delays and other circumstances attending the transportation to be taken into consideration so far as they might throw any light on the! condition of the horses when they arrived at Ashland, and whether they were thereafter handled by defendant with reasonable care and despatch in switching, moving the car, and helping to unload them under the circumstances which had arisen. We find no reversible error in admission of the testimony complained of for the purpose stated, or the charge of the court in relation thereto. Plaintiff’s contract for transportation states over his signature that the car load consisted of 28 horses, while his own testimony shows that car load consisted of 32 horses. His original declaration, under which a previous trial was had, counted on a contract for transportation of 28 horses, and remained unchanged until the second trial of this case, under review here, was entered upon, when, against objection, plaintiff was permitted to add a count to his declaration alleging 32 horses. Under the general proposition that the shipper may not be permitted to impose on the carrier obligations beyond the contract they entered into, defendant strenuously urged in the court below and here that a verdict should have been directed in defendant’s favor on that ground. Plaintiff was a man of several years’ experience in rail transportation, both by express and ordinary freight shipment. His evasive testimony, based on claimed ignorance of the nature of his contract and the number of horses loaded in the car, is pitiful, if true, but was for the jury. Whether he gave the number as 28 to the agent at Deep River, who filled out the contract in triplicate, is in dispute. Twenty-eight horses was the minimum load for cars of that type. It was shown as customary to load all the horses in a car it would accommodate, since they shipped better when loaded tight. Plaintiff’s agent who loaded them testified that defendant’s station agent was there when they were being loaded. The latter testified that when he asked plaintiff for the number of horses he replied — “28, that was the minimum.” It was undisputed that the horses were always counted at destination and charges collected for the number of horses carried. Plaintiff paid and defendant accepted full express charges for 32 horses carried in this car. Under those circumstances we find scant foundation for the imputation of fraudulent conduct in loading 32 horses when they were carried at the shipper’s risk of their kicking, smothering or otherwise damaging each other or of any loss resulting from their condition or propensities, where the carrier charged and received full express rates for all horses in the car. We find no error in the court’s refusal to direct a verdict for the defense on that ground. The Federal classification recognizes an additional charge for each horse in excess of the specified minimum number of horses in cars not stalled. Defendant introduced in evidence certified copies of certain schedules, rules, and rates authenticated by the commission claimed pertinent to this contract, which contained symbolic letters and numbers with, a multitude of figures for computing rates, and for convenience of the court called an experienced express-man to explain their import, and how, according to those traffic rates and schedules, the charges for transporting this car load of horses from Deep River to Hurley, including the excess, should properly be figured. The court sustained an objection to such testimony, saying “that is part of the court’s duty to figure out, after the rules and regulations are introduced.” The court did not, however, thereafter figure anything out, nor, when instructing the jury, make any mention of the Federal interstate commerce law or -the rules, schedules, and rates promulgated pursuant to it; but instructed the jury without any qualification that under the quoted provision of the contract the measure of damages must be computed on the basis of the value of the animals at the place and time of shipment. Plaintiff testified, over defendant’s objection, that the car load of horses cost him at Deep River $6,713.15, including $465.65 for commission and other expenses, which was their value at that time and place. His bill for the 5 horses which died, including $40 expenses for each, was $1,415. The balance of his claimed damages was for depreciation of 10 other horses, resulting from defendant’s alleged negligence in switching the car at Ashland. While the carrier may not wholly relieve itself by contract from damages imputable to its own negligence, its liability in this class of shipments may, under the interstate commerce act, be limited by contract, if the limitations be just and reasonable. On the line in the contract stating the number of horses as 28 appears $150, which, however, is beneath a heading “Value of paraphernalia.” Defendant claimed this represented the declared or release value of each horse, as no paraphernalia was listed or valued •and the interstate commerce classification rules for receiving shipments requires that “The value of the ■property must be declared by the shipper, and inserted in the receipt.” Plaintiff testified he gave no value to the agent who made out the contract. Defendant’s agent at Deep River who filled out the contract, made in triplicate by use of two carbon impressions, testified it was the same when plaintiff signed it as when produced in evidence. As bearing on plaintiff’s denial of valuation, he was asked: “What did you say to Mr. Shier regarding the released value of the horses and what did he say to you?” The court sustained plaintiff’s objection to this on the ground it was incompetent, irrelevant and immaterial. Bearing upon that issue, defendant’s “car load delivery sheet” with plaintiff’s receipt is, in part, as follows: “Forwarding office, Deep River, Iowa. 36 hour extension executed. 24.18. Description. 28 head horses — weight—12,000. Route C. & N. W. Mason City— C. R. I. & P. St. Paul, 2/11/21. Destination, Hurley, Wisconsin. Consignee, R. R. Shier. Value, $150.00 each. Class 1. Scale or rate 41. Loaded at 2:45 P. M. Feb. 11, ’21. Man in charge with contract. (Above filled out at Deep River.) Upon arrival at Hurley, following written in: ‘Car contained 32 head.’ Delivered Feb. 14, 1921. Received from American Railway Express Company, shipment described hereon. Signed as follows: ‘R. R. Shier, five horses killed several injured.’ Consignee.” The “shipment described hereon” for which plaintiff receipted stated the car load of horses was valued at “$150 each.” Whether there was a declared or release valuation by the shipper on this car load of horses was open to question under the written evidence, and the court was in error in excluding the proposed testimony of defendant's agent upon that subject. Read in the light of the rules, schedules, and rates approved by the interstate commerce commission, the basis for computing damages specified in the contract is subject to modification and not necessarily controlling. Defendant was entitled to have the case submitted to the jury in harmony with the laws and authenticated schedules, rules and rates relating to interstate commerce. Failure to do so lends ground for the claim of an excessive verdict. Whether or not any of the horses were dead or injured on arrival of the car at Ashland was a question of fact. In view of the exempting provisions of sections 3 and 5 of the contract and plaintiff’s own testimony as to his failure during the trip to examine or inspect the horses in what his own witness said was the only proper way, we think the court erred in refusing to charge the jury in compliance with the following request of defendant: “The mere proof that some of these horses were dead upon arrival of the car at Ashland, Wisconsin, and that other horses were injured there upon or after arrival, is not sufficient of itself to establish or prove any negligence on the part of defendant express company, or to establish its liability in this case. The evidence must go further and the burden of proof is upon the plaintiff to establish that such damage was due to human agency.” For these errors the judgment is reversed and a new trial granted, with costs to appellant. Bird, C. J., and Sharpe, Fellows, Wiest, Clark, and McDonald, JJ., concurred. Justice Moore took no part in this decision.
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Bushnell, J. In a replevin action brought in the superior court of Grand Rapids, plaintiff secured a judgment against defendants, who are sheriff and deputy sheriff respectively of the county of Kent. Defendants seized plaintiff’s automobile, which was later appraised at $150, by virtue of a writ of execution issued out of the justices’ court of the city of Grand Rapids, following a judgment against plaintiff in the amount of $156.05. A motion to quash the levy based on a claim of exemption was denied in the justices’ court. No appeal was taken. The replevin proceedings were instituted shortly thereafter. Appellants contend that the affidavit filed in the replevin action is insufficient. The form provided in 3 Comp. Laws 1929, § 14819, was not followed in that the italicized words in the phrase “nor seised under any execution or attachment against the goods and chattels of such plaintiff, liable to execution” were omitted. The affidavit says, however, “that the same has been seized by one R. K. Branch, deputy sheriff, upon an execution issued from justice court and affiant has claimed his exemption therein. ’ ’ This last statement sufficiently indicated that the goods seized were not liable to execution. While the statute requires the affidavit to be attached to the writ of replevin before its execution, the issuance of the writ does not depend upon the affidavit, nor does it confer jurisdiction to issue the writ. Taylor v. Buck, 100 Mich. 181; Baker v. Dubois, 32 Mich. 92. There is nothing in the affidavit inconsistent with plaintiff’s claim. Elliott v. Whitmore, 5 Mich. 532. See, also, Theatre Equipment Acceptance Corp. v. Betman, 254 Mich. 639. Any defects therein, if there were any, were waived by pleading to the merits. The point was not raised in the court below. Baker v. Dubois, supra. The only question raised by the appeal is whether the superior court had the right or jurisdiction to issue a writ of replevin when the chattel was held on a lawful execution issued by one of the justices’ courts for the city of Grand Rapids. The validity of the justices’ court judgment is not attacked. The only question determined by the replevin action was whether the levy was on exempted property. It is not necessary to determine the effect of the denial of plaintiff’s motion to quash the levy in the justices’ court, as that question was not raised by defendants’ answer, nor was it considered in the court below. Court Rule No. 23, § 3 (1933), Poy v. Allan, 249 Mich. 527, and Siegmeyer v. Small, 254 Mich. 679. Since, however, the testimony and exhibits reveal that the motion was heard and denied in the justices’ court, we hold that such action on its part did not render the question res judicata, for the reason that the justices ’ court did not have jurisdiction to hear the motion to quash. King v. Bates, 80 Mich. 367 (20 Am. St. Rep. 518). The superior court of Grand Rapids is a court of record having original jurisdiction concurrent with the circuit court for the county of Kent, as provided in 3 Comp. Laws 1929, § 16351. In order to confer jurisdiction, it must appear on the face of the process or declaration that one of the parties resides in the city of Grand Rapids. We do not understand that its jurisdiction over the subject-matter or parties is questioned in the matter before us. If so, it is clear that the court had full jurisdiction. Does its writ of replevin lie against these defendants ? The answer is found in the reply to the question: Would a circuit court writ of replevin lie against defendants under the facts presented? This question is well settled by the cases annotated under 3 Comp. Laws 1929, § 14817. The statute gives the court authority to hear replevin suits for the return of exempt property on the complaint of those who have been subjected to illegal levies. Gottesman v. Chipman, 125 Mich. 60. The automobile was exempt from execution by reason of 3 Comp. Laws 1929, § 14578, subd. 8. The court had jurisdiction and the judgment is affirmed, .with costs to appellee. Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Butzel, and Edward M. Sharpe, JJ., concurred.
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Potter, J. March 30, 1932, the Brightmoor Recreation Club, Inc., a Michigan corporation, of Detroit, gave an option to plaintiff to lease or purchase a bowling alley and poolroom on Fenkell avenue in Detroit. Such lease, if made, to commence September 1, 1932, and to be for a period of two years, terminating August 31,1934. Plaintiff was to pay down $500 by his promissory note in case he elected to lease. September 1, 1932, a two-year lease was executed to plaintiff and in and by it the lessor acknowledged the receipt of the $500 promissory note. After the option was signed, plaintiff spent $692.98 in redecorating the premises in pursuance of a verbal contract with lessors which plaintiff claims he fully performed. All this sum was expended before the written lease was executed. The Brightmoor Recreation Club, Inc., was a lessee of the Century Investment Company. It held under a lease which expired April 1, 1933, long before the time to which plaintiff’s lease ran. Upon discovery his lease would be terminated with the expiration of the underlying lease of the Brightmoor Recreation Club, Inc., plaintiff tendered the premises back to lessors and filed a bill in chancery in the circuit court of Wayne county to rescind the contract of lease on the ground of fraud, and to obtain a lien upon the property leased for the money paid out by him of which he claimed to have been defrauded. . The night after the case was heard and after the trial court announced what decree would be and before such decree was settled or entered, defendant LaVine entered the premises and removed therefrom, in the nighttime, the bowling alleys leased to plaintiff. The next day attorneys for plaintiff and defendants were in court and testimony was adduced by plaintiff of this removal of property. Some of plaintiff’s witnesses were cross-examined by defendants’ attorney, after which the trial court ordered a return of the property so removed and entered a decree of rescission, giving plaintiff a lien in the amount of $692.98 on the property leased, which was specifically described in the decree of the trial court. Defendants claim there was no fraud; a lien cannot be declared for the amount of the expenditures made upon the property by plaintiff before the lease was executed; that plaintiff, having tendered back the property, defendants had a right to remove it from the premises, and that such property is not subject to a lien. Plaintiff, in addition to what is alleged in the bill of complaint, claims that if there was any doubt of plaintiff’s right to rescind upon the ground of fraud, defendants elected to rescind absolutely by removing the bowling alleys and personal property leased to plaintiff from the premises and by preventing plaintiff, even though he so desired, from carrying out and performing the contract of lease. Without here reviewing in detail the testimony adduced, we are satisfied from the statements, acts and conduct of defendants, plaintiff is entitled to the relief granted by tbe trial court, and its decree is affirmed, with costs. Nelson Sharpe, C. J., and North, Fead, Wiest, Butzel, Btjshnell, and Edward M. Sharpe, JJ., concurred.
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Wiest, J. This is an action of assumpsit by vendors in a land contract against the vendee and others, alleged to have been initial joint adventurers with the named vendee. Plaintiffs owned an 87-acre farm near Pontiac and wanted to sell it for $1,250 per acre and, on March 14, 1927, gave defendants Saunders, Col-grove and Buck an option to purchase the farm at a price of $108,750 and, on April 21, 1927, executed a land contract of sale, under seal, to Lawrence E. Colgrove. March 15, 1927, all defendants entered into a subscription agreement for the purpose of purchasing, holding and selling the land, and provided that the syndicate should enter into a land contract for the purchase. The individual subscriptions were payable to Saunders, Colgrove and Buck, designated a copartnership, as trustee. June 15, 1927, Lawrence E. Colgrove, in whose name the land contract was taken, made a declaration of trust, which was also signed by all defendants, setting forth the interest of each member, and reciting that the contract, from Briggs to Colgrove, was actually made by the parties to the declaration of trust in their behalf, and providing for management and distribution of profits. August 25, 1930, plaintiffs borrowed money from the Detroit & Security Trust Company, and assigned their vendors’ interest in the land contract as security. The Detroit & Security Trust Company filed a certificate that this suit was instituted with its knowledge and authority. Writ of garnishment was issued as to defendant Claude Crusoe to the Guardian National Bank of Commerce, First Wayne National Bank of Detroit and Fisher Body Corporation. The court entered judgment against defendant Lawrence E. Colgrove for the instalment due on the land contract and discharged the other defendants on March 9, 1933. Other writs of garnishment appear to have been issued as to several defendants and, after judgment, the principal defendants so involved moved to dismiss the writs and, on April 18, 1933, the court dismissed the writs of garnishment. This was done after preliminary notice of appeal. This is an appeal from the judgment and also from the dismissal of the writs of garnishment. Plaintiffs claim.right to recover against all defendants as joint adventurers. Defendants claim that Colgrove acted for himself and there was no privity of contract between the other defendants and plaintiffs; that the assignment to the Detroit & Security Trust Company barred suit by plaintiffs and also aver violation of the Michigan securities act (Act No. 220, Pub. Acts 1923), and estoppel by readjustment of rights by subsequent agreement. If the judgment rendered was right then we need pay no attention to the dismissal of the writs of garnishment. We think the principal question involved is controlled by our opinion in Wardowski v. Guardian Trust Co., 262 Mich. 422. In that case the trust company, vendee in a land contract, upon foreclosure by the vendor, contended that any decree for deficiency should be against members of the syndicate for whom the vendee was in fact acting as trustee. We held there was want of privity of contract between members of the syndicate and the vendor in the land contract. In that case the members of the syndicate authorized the trust company to act as trustee in their behalf and, as between them and the trust company, we held they could be made to respond within the compass of their agreement but that such response could not be carried to the vendor under an undertaking by the trustee in its corporate capacity. In that case the vendee executed the land contract under the designation of “trustee” ánd the vendor was advised of the trust capacity of the vendee by a copy of the trust agreement, attached to the land contract. That case determines this. Adams v. Bruce, 265 Mich. 137, was a foreclosure in equity and did not involve privity of contract. See Tapert v. Schultz, 252 Mich. 39; Barnard v. Huff, 252 Mich. 258 (77 A. L. R. 259). Judgment affirmed, with costs. Nelson Sharpe, C. J., and Potter, North, Fead, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred.
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Gleicher, J. In this insurance contract dispute, plaintiff appeals as of right a circuit court order granting defendant Ferwerda Enterprises, Inc. (Holiday Inn), summary disposition of plaintiffs declaratory judgment action. The circuit court also granted Holiday Inn summary disposition with respect to its claim that plaintiff owed it a duty to defend and indemnify against the underlying personal injury lawsuit of defendants Daryl Bronkema, individually and as next friend of Jackson T., Caleb A., and Savannah J. Bronkema, minors, and Melissa Bronkema. The circuit court then awarded Holiday Inn damages and awarded Holiday Inn and the Bronkemas attorney fees, costs, and penalty interest. We reverse the circuit court’s orders with regard to these matters and remand to the circuit court for further proceedings consistent with this opinion. Holiday Inn cross-appeals as of right the circuit court’s order dismissing its counterclaims based on waiver and estoppel. We affirm the circuit court’s order dismissing these claims. i. underlying facts and procedure The Holiday Inn Express Ludington offers its guests the use of a swimming pool, located in a building attached to the hotel. The equipment used to operate the pool includes a water pump, polyvinyl chloride (PVC) lines that carry pool water to and from the water pump, a boiler that heats the pool water, and a device called a Rola-Chem that dispenses chemicals into the pool water. The pump propels pool water through the PVC lines into the filter and then into the boiler, which heats the water. From the boiler, the warmed water travels to the Rola-Chem, which injects chlorine and muriatic acid, and the pump then pushes the warmed, chemically treated water back into the pool. An affidavit signed by Jeffrey Curtis, Holiday Inn’s general manager, describes the mechanical equipment as “an integrated system that filters, heats, and sanitizes the indoor pool water.” The boiler used to heat the pool water serves as the primary source of heat for the entire pool building. Curtis’s affidavit explains, “There are no heat ducts from any source in the pool pump room. The sole source of heat for the pump room is the heat given off by the integrated pipe and boiler system.” Gerald Gregorski, a mechanical engineer, also supplied an affidavit, which attested that the pool “lose[s] heat through the processes of convection and evaporation,” and as a result heats the air space in the building housing the pool. Gregorski’s affidavit continues, “Because of heat loss through convection and evaporation, pools require the use of a heater to maintain a constant water temperature. A system that pumps pool water into a boiler to heat the water and pumps the heated water back into the pool heats the building where the pool is located.” Plaintiff retained engineer Michael T. Williams to inspect the Holiday Inn’s pool equipment. At his deposition, Williams conceded that “the only source of heat for the pool building at issue in this litigation in the Holiday Inn Express that requires the use of equipment is the heating of the pool water by the boiler in the utility room.” Williams expressed that apart from solar heat entering the pool room’s windows, he did not know of any source of heat besides the boiler. On April 9, 2004, an elbow in the PVC line “blew out.” A Holiday Inn maintenance man repaired it, but did not turn off the Rola-Chem “feeder system” while completing the repair. Gases created by the continuously flowing chlorine and muriatic acid formed in the PVC lines. When the maintenance man successfully repaired the elbow and powered the system back on, a cloud of the gas traveled through the PVC lines, entered the pool area, and injured the Bronkema family. Plaintiff filed a declaratory judgment action seeking a determination whether Holiday Inn’s insurance policy with plaintiff covered the Bronkemas’ claims for personal injuries. Holiday Inn filed a counterclaim alleging breach of contract, estoppel, and waiver and requesting attorney fees and penalty interest. Pursuant to MCR 2.116(0(10), plaintiff moved for summary disposition, contending that Holiday Inn’s policy did not cover the Bronkemas’ injuries. Holiday Inn then filed a cross-motion for partial summary disposition under MCR 2.116(C)(8), (9), and (10), on the basis that an endorsement to the policy’s building heating equipment exclusion afforded coverage for the Bronkemas’ personal injuries. The circuit court determined as a matter of law that the Bronkemas’ personal injury claims fell within the scope of Holiday Inn’s policy with plaintiff, specifically the “heating equipment exception” to the policy’s pollution exclusion, and thus granted summary disposition of the declaratory judgment action in favor of Holiday Inn. Ultimately, after multiple summary disposition and other hearings, the circuit court entered a final judgment awarding Holiday Inn nearly $529,000 on its breach of contract claim, granting Holiday Inn more than $186,000 in attorney fees and costs, awarding the Bronkemas more than $71,000 in attorney fees and costs, and granting all defendants “penalty interest pursuant to [MCL 500.2006].” II. STANDARD of review and governing legal principles Because the circuit court considered documentation beyond the pleadings in granting Holiday Inn summary disposition, it appears that the court ruled under MCR 2.116(0(10), which tests a claim’s factual support. This Court reviews de novo a circuit court’s summary disposition ruling. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). “Summary disposition is appropriate under MCR 2.116(0(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). “In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.” Walsh, supra at 621. “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West, supra at 183. “Questions involving the proper interpretation of a contract or the legal effect of a contractual clause are also reviewed de novo.” McDonald v Farm Bureau Ins Co, 480 Mich 191, 197; 747 NW2d 811 (2008). This Court applies to insurance contracts the same contract construction principles that govern any other type of contract, and thus begins by considering the language of the parties’ agreement to determine their intent. Royal Prop Group, LLC v Prime Ins Syndicate, Inc, 267 Mich App 708, 714; 706 NW2d 426 (2005). Accordingly, an insurance contract should be read as a whole and meaning should be given to all terms. The policy application, declarations page of policy, and the policy itself construed together constitute the contract. The contractual language is to be given its ordinary and plain meaning. An insurance contract must be construed so as to give effect to every word, clause, and phrase, and a construction should be avoided that would render any part of the contract surplusage or nugatory. “[UJnless a contract provision violates law or one of the traditional [contract] defenses to the enforceability of a contract applies, a court must construe and apply unambiguous contract provisions as written.” “[T]he judiciary is without authority to modify unambiguous contracts or rebalance the contractual equi ties struck by the contracting parties because fundamental principles of contract law preclude such subjective post hoc judicial determinations of ‘reasonableness’ as a basis upon which courts may refuse to enforce unambiguous contractual provisions.” A provision in a contract is ambiguous if it irreconcilably conflicts with another provision, or when it is equally susceptible to more than a single meaning. [Id. at 715 (citations omitted).] III. THE INSURANCE POLICY Holiday Inn’s form “Commercial General Liability” insurance policy, issued by plaintiff, included the following pollution exclusion: This insurance does not apply to: f. (1) “Bodily injury” or “property damage” arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants: (a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured; (b) At or from any premises, site or location which is or was at any time used by or for any insured or others for the handling, storage, disposal, processing or treatment of waste; (c) Which are or were at any time transported, handled, stored, treated, disposed of, or processed as waste by or for any insured or any person or organization for whom you may be legally responsible; or (d) At or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured’s behalf are performing operations: (i) if the pollutants are brought on or to the premises, site or location in connection with such operations by such insured, contractor or subcontractor; or (ii) if the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of pollutants. Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed. Holiday Inn’s policy included an endorsement entitled “Amendment of Pollution Exclusion — Exception for Building Heating Equipment.” Prefacing the title appear the words, “This endorsement changes the policy. Please read it carefully.” Below the title, the endorsement states, “This endorsement modifies insurance provided under the COMMERCIAL GENERAL LIABILITY COVERAGE FORM.” The endorsement deleted subparagraph f(l)(a) of the pollution exclusion, and replaced it with other language: Under SECTION I — COVERAGES, COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY, 2. Exclusions, exclusion £, subparagraph (1) (a) is deleted and replaced by the following: This insurance does not apply to: £ (1) “Bodily injury” or “property damage” arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants: (a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to any insured. However, this subparagraph, (a), does not apply to “bodily injury” if sustained within a building at such premises, site or location and caused by smoke, fumes, vapor or soot from equipment used to heat a building at such premises, site or location. rv ANALYSIS A. THE BUILDING HEATING EQUIPMENT EXCEPTION The circuit court ruled as a matter of law that the building heating equipment endorsement unequivocally provided coverage under the policy. In McGuirk Sand & Gravel, Inc v Meridian Mut Ins Co, 220 Mich App 347, 354; 559 NW2d 93 (1996), this Court construed an “absolute pollution exclusion” similar to the instant pollution exclusion and observed, “There is a definite national trend to construe such exclusions as clearly and unambiguously precluding coverage for claims arising from pollution. .. . Most courts that have examined similar exclusions have concluded that they are clear and unambiguous and are just what they purport to be — absolute.” Holiday Inn’s policy’s definition of the term “pollution” contributes to the absolute character of the exclusion, given that it includes any “irritant or contaminant” in liquid, solid, or gaseous form. This broad definition expands the reach of the pollution exclusion well beyond traditional environmental pollutants and includes an enormous variety of substances. However, the instant policy’s building heating equipment exception renders the pollution exclusion less “absolute” because it excises the pollution exclusion from the form policy when a person in the insured’s building suffers bodily injury “caused by smoke, fumes, vapor or soot from equipment used to heat a building at such premises . . ..” The building heating equipment exception thus serves to resurrect coverage otherwise unavailable under the broad pollution exclusion. “ [E] ndorsements often are issued to specifically grant certain coverage or remove the effect of particular exclusions. Thus, such an endorsement will supercede [sic] the terms of the exclusion in question.” 4 Holmes’ Appleman on Insurance (2d ed), § 20.1, p 156. “When a conflict arises between the terms of an endorsement and the form provisions of an insurance contract, the terms of the endorsement prevail.” Hawkeye-Security Ins Co v Vector Constr Co, 185 Mich App 369, 380; 460 NW2d 329 (1990). “ [Endorsements by their very nature are designed to trump general policy provisions, and where a conflict exists between provisions in the main policy and the endorsement, the endorsement prevails.” Nationwide Mut Ins Co v Schmidt, 307 F Supp 2d 674, 677 (WD Pa, 2004). The building heating equipment endorsement extends coverage for bodily injury arising from the discharge or dispersal of pollutants where vapor, smoke or fumes generated by building heating equipment cause an injury. The circuit court determined that the harmful gases in this case emanated from the integrated mechanical system that heated the pool building. Plaintiff endeavors to avoid application of the endorsement by contending that the “chlorine injector (i.e. the Rola-Chem feeder), not the pool water heater, was the source of the toxic fumes.” (Emphasis in original.) But the evidence, viewed in the light most favorable to Holiday Inn, gives rise to a genuine issue of material fact concerning whether the gases formed within the PVC lines, not within the Rola-Chem feeder, and dispersed only after the maintenance man repowered the entire pool filtration and heating system; when heated water eventually flowed into the pool, the toxic gas accompanied the water. The circuit court further found that because the pool building’s heat derived from the heated water delivered to the pool through the equipment that leaked the chlorine gas, the pollutant emanated from “equipment used to heat a building.” We recognize, as plaintiff maintains, that the building heating equipment endorsement usually applies to pollution occurrences emanating from a furnace. But plaintiff does not dispute that in this case the pool’s heating equipment provided the only mechanical source of heat for the pool room. And under the circumstances presented in this case, we find equally plausible that the building heating equipment endorsement applies to the lone mechanical source of heat in Holiday Inn’s pool room, specifically the integrated heat, filtration, and treatment system demonstrated by some evidence supplied by Hob-day Inn. In summary, we conclude that in this case the language of the entire contract of insurance, including the building heating equipment endorsement, fairly admits an interpretation that the building heating equipment language encompasses the apparently integrated heating, filtration, and treatment system in Hobday Inn’s pool room and an interpretation that it does not. Raska v Farm Bureau Mut Ins Co of Michigan, 412 Mich 355, 362; 314 NW2d 440 (1982); Royal Prop Group, supra at 715. Because an ambiguity exists with respect to whether the building heating equipment endorsement encompasses the heating, filtration, and treatment system in Hobday Inn’s pool room, the parties’ insurance contract qualifies as ambiguous, and a fact-finder should ascertain its meaning. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 469; 663 NW2d 447 (2003). B. INSURANCE POLICY SUBSECTION f(l)(d)(i) Plaintiff also urges that subsection f(l)(d)(i) excludes coverage under the facts of this case, in which Hobday Inn brought chlorine and muriatic acid, both “pobutants,” onto hotel premises for operational purposes. Subsection f(l)(d)(i) excludes coverage for bodily injury arising from the “actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants”: (d) At or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured’s behalf are performing operations: (i) if the pollutants are brought on or to the premises, site or location in connection with such operations by such insured, contractor or subcontractor^] The pollution exclusion defines “pollutants” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” According to plaintiff, the fact that the insured brought the liquid chlorine and muriatic acid onto the premises in connection with the operation of the swimming pool brings into operation the pollution exclusion in subsection f(l)(d)(i). Deposition testimony did support that Holiday Inn purchased large containers of liquid chlorine and muriatic acid to clean its pool. This evidence reasonably tends to establish that Holiday Inn brought to its premises chemicals within the broad policy definition of “pollutants” that ultimately injured the Bronkemas. This situation gives rise to a reasonable inference that the exclusion in f(l)(d)(i) precludes recovery for the Bronkemas’ bodily injuries. Whether substances such as chlorine and muriatic acid generally qualify as pollutants remains a subject of debate in caselaw construing absolute pollution exclusions. But, in this case, a reasonable position also exists that neither chlorine nor muriatic acid, the liquid “pollutants” that Holiday Inn brought onto its premises, injured the Bronkemas. Some evidence presented to the circuit court reasonably tends to establish that a toxic combination of the two chemicals inside PVC piping yielded a harmful gas that dispersed into the swimming pool area. Under this view of the evidence, the gas or vapor constituted the “pollutant” that caused bodily injury to the Bronkemas. In summary, a rational person viewing the circumstances of this case in light of the policy language in subsection f(l)(d)(i) could reasonably conclude either that no coverage exists because the Bronkemas suffered injury from pollutants that Holiday Inn brought onto its premises or that plaintiff owes coverage because Holiday Inn did not import onto its premises the toxic gas cloud that injured the Bronkemas. In this situation, a fact-finder must make the relevant determination regarding the scope of coverage. Klapp, supra at 469. V CROSS-APPEAL BY HOLIDAY INN Holiday Inn contends that the trial court erred by dismissing its estoppel and waiver counterclaims against plaintiff. We consider de novo the application of legal doctrines such as waiver and estoppel. Madison Dist Pub Schools v Myers, 247 Mich App 583, 588; 637 NW2d 526 (2001). Waiver signifies “a voluntary and intentional abandonment of a known right.” Quality Products & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 374; 666 NW2d 251 (2003). Holiday Inn contends that in denying coverage plaintiff waived any potential rebanee on any pobution exclusions apart from subsection f(l)(a), and any right to chahenge the appheabihty of the building heating equipment endorsement. Hobday Inn’s argument focuses on a letter written by plaintiff on August 17, 2005, which denied a coverage obbgation, specificahy quoting pobution exclusion subsections f(l)(a) and (d)(i); advised Hobday Inn that if it disagreed with plaintiffs denial, plaintiff would initiate “a declaratory judgment action”; and concluded with the fobowing language: All rights, terms, conditions and exclusions in your policy are in full force and effect and are completely reserved. No action by any employee, agent, attorney, or other person on behalf of Auto-Owners Insurance Company; or hired by Auto-Owners Insurance Company on your behalf; shall waive or be construed as having waived any right, term condition, exclusion or any other provision of the policy. [Emphasis added.] Plaintiffs letter explicitly referenced pollution exclusion subsection f(l)(d)(i), which the circuit court addressed. Furthermore, the clear and unambiguous language emphasized above reflects plaintiffs express reser vation of its rights under all provisions of Holiday Inn’s policy, and Holiday Inn presented no evidence suggesting that plaintiff ever retreated from this position. We thus reject Holiday Inn’s waiver claim as lacking merit. Holiday Inn lastly suggests that the circuit court should have deemed plaintiff estopped from denying coverage for the Bronkemas’ bodily injury claims. Holiday Inn emphasizes on appeal that plaintiff initially paid bodily injury benefits to the Bronkemas and insists that plaintiff undisputedly “failed to give reasonable notice of its defense that the [building heating equipment] Endorsement was inapplicable.” For equitable estoppel to apply, the [party raising the defense] must establish that (1) the [other party’s] acts or representations induced the [party raising the defense] to believe that the pollution exclusion clause would not be enforced and that coverage would be provided, (2) the [party raising the defense] justifiably relied on this belief, and (3) the [party raising the defense] was prejudiced as a result of its reliance on its belief that the clause would not be enforced and coverage would be provided. [Grosse Pointe Park v Michigan Muni Liability & Prop Pool, 473 Mich 188, 204; 702 NW2d 106 (2005) (opinion by Cavanagh, J.).] Estoppel usually does not expand an insurance policy’s express coverage absent egregious, inequitable action by the insurer. Kirschner v Process Design Assoc, Inc, 459 Mich 587, 594; 592 NW2d 707 (1999). In light of plaintiffs clear and unambiguous explanation of the bases for its denial of coverage and its reservation of rights with respect to other policy provisions, we reject that Holiday Inn can establish any reasonable reliance in this case. The August 2005 letter clearly placed Holiday Inn, from the outset of this litigation, on notice of plaintiffs belief that the pollution exclusion provisions precluded recovery arising from the Bronkemas’ bodily injuries. Furthermore, plaintiffs initial payment of the Bronkemas’ medical bills does not alter our analysis because “[t]he fact that an insurer has paid some benefits to an insured party does not preclude it from later asserting that it owes nothing” when a lawsuit over coverage arises. Calhoun v Auto Club Ins Ass’n, 177 Mich App 85, 89; 441 NW2d 54 (1989). Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. BANDSTRA, J., concurred. Plaintiff initially paid about $10,000 toward the Bronkemas’ medical bills. But after the parties ultimately failed to reach a settlement, the Bronkemas commenced a tort action against Holiday Inn. When plaintiff received the Bronkemas’ lawsuit, it concluded that their claims were excluded from coverage pursuant to the policy’s pollution exclusion. Plaintiff mailed Holiday Inn a letter containing its opinion that the policy did not cover the Bronkemas’ claims, Holiday Inn expressed its disagreement, and plaintiff filed the declaratory judgment action. In Western Alliance Ins Co v Gill, 426 Mass 115, 118-120; 686 NE2d 997 (1997), the Supreme Judicial Court of Massachusetts presented a comprehensive list of the nontraditional “pollutants” that courts have examined under the pollution exclusion, including fumes from new carpeting, odors from cement used to install a plywood floor, and photographic chemicals. For example, in Pipefitters Welfare Ed Fund v Westchester Fire Ins Co, 976 F2d 1037, 1043 (CA 7, 1992), the United State Court of Appeals for the Seventh Circuit explored the notion that chlorine could be fairly characterized as a pollutant: Without some limiting principle, the pollution exclusion clause would extend far beyond its intended scope, and lead to some absurd results. To take but two simple examples, reading the clause broadly would bar coverage for bodily injuries suffered by one who slips and falls on the spilled contents of a bottle of Drano, and for bodily injury caused by an allergic reaction to chlorine in a public pool. Although Drano and chlorine are both irritants or contaminants that cause, under certain conditions, bodily injury or property damage, one would not ordinarily characterize these events as pollution. In MacKinnon v Truck Ins Exch, 31 Cal 4th 635, 650; 3 Cal Rptr 3d 228; 73 P3d 1205 (2003), the California Supreme Court observed, “Virtually any substance can act under the proper circumstances as an ‘irritant or contaminant.’ ” Regarding the “absurd results” postulated in Pipefitters, the California Supreme Court commented: The hypothetical allergic reaction to pool chlorine, proposed by the Pipefitters court, illustrates this absurdity. Chlorine certainly contains irritating properties that would cause the injury. Its dissemination throughout a pool may be literally described as a dispersal or discharge. Our research reveals no court or commentator that has concluded such an incident would be excluded under the pollution exclusion. [Id.]
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Per Curiam. Plaintiff, Carol Teal, the personal representative of the estate of Dennis Teal, deceased, appeals as of right the trial court’s orders granting summary disposition to defendants Manish Prasad, M.D., Paul D. Thielking, M.D., Mark Levine M.D., EC. (the EC.), and Herrick Memorial Hospital, Inc. (the hospital), and dismissing her cause of action for medical malpractice. We affirm. The decedent, Dennis Teal, had a history of depression and alcohol abuse. Plaintiff was Teal’s wife, but she had started divorce proceedings in the weeks before his suicide. When this occurred, Teal began drinking more heavily and stopped taking his antidepressant medication. On March 18, 2004, Teal attempted suicide by trying to poison himself with carbon monoxide in his garage. The police found him and sent him to the emergency room at the University of Michigan Hospital for evaluation and treatment, where he was certified for involuntary admission. Teal was transferred to Herrick Memorial Hospital, a hospital providing psychiatric care in Lewanee County, on March 19, 2004. Defendant Manish Prasad conducted the initial evaluation of Teal and admitted him to the in-patient unit for monitoring. Dr. Prasad noted that Teal was uncooperative and revealed little information, and he instructed that Teal be monitored for depression symptoms and suicidal intentions and placed Teal back on antidepressants. Dr. Prasad continued to monitor and treat Teal during his time at the hospital. Defendant Paul Thielking was the on-call physician the weekend that Teal was in the hospital. He first saw Teal on March 20, 2004. When Dr. Thielking assessed Teal, he noted that Teal was much more cooperative and apologized for his lack of cooperation the day before. He discussed wanting to get back on his medication and resume attending Alcoholics Anonymous (AA) meetings. When Dr. Thielking saw Teal again on March 21, Teal stated that he did not have suicidal intentions and acknowledged that he needed treatment and therapy. Dr. Prasad discharged Teal from the hospital on March 22,2004. Teal was instructed to continue taking a combination of 150 milligrams of Wellbutrin SR and 20 milligrams of Prozac daily, as well as 50 milligrams of trazodone as needed, to live with either his mother or his sister, and to continue his treatment with follow-up appointments with his therapist and, if necessary, a psychiatrist. On the day of his discharge, Teal signed a safety plan agreeing, among other things, to attend AA meetings. As part of his discharge plan, Teal was provided with treatment at Livingston Community Center Mental Health (the center). On March 29, 2004, social worker Sarah Berntsen evaluated Teal at the center. At the evaluation, Teal acknowledged that he had on-going thoughts and feelings of suicide, but had no desire or intent to act on them. Teal agreed that he would contact Berntsen if he was contemplating suicide, and she told him to return the following day for a clinical appointment with nurse practitioner Judy Gentz. Teal returned to the center the following day, and Gentz gave him a prescription for trazodone and told him to return for a dual-diagnosis evaluation. Teal left the center and filled the prescription. Later that day, Teal contacted his daughter, Tracey Hillier, multiple times. During his final phone call to Hillier, he told her that he loved her, that he was going to attempt to call his wife one more time, and that if she didn’t answer he “was done” because he “couldn’t do it anymore.” After she got off the phone with her father, Hillier contacted Teal’s sister and asked her to check on Teal. Hillier also called the police, telling them that she was concerned that Teal would try to commit suicide. As these events occurred, Teal committed suicide. By the time the police and Teal’s sister arrived at his residence, Teal had hanged himself. Plaintiff filed a complaint on June 30, 2006, alleging that Drs. Manish Prasad, Luven Tejero, and Paul Thielking had committed malpractice by failing to properly diagnose and treat Teal and by discharging him from the hospital prematurely and without formulating a proper treatment plan that would address Teal’s depression and alcoholism. Plaintiff alleged that the EC. and the hospital failed to provide physicians and staff members who were competent, skilled, and adequately trained to provide Teal with psychiatric care in accordance with the standard of care. Plaintiff claimed that defendants’ negligence caused Teal to commit suicide. Plaintiffs expert, Gerald Shiener, M.D., testified that defendants violated the standard of care by inadequately diagnosing Teal’s condition and providing treatment and follow-up care that did not adequately address his alcoholism and depression. If defendants had done so, Dr. Shiener claimed, it was more likely than not that Teal would not have committed suicide. According to Dr. Shiener, the defendants should have made a better assessment regarding whether Teal was suicidal and should have recognized that Teal’s increasingly positive outlook on life over the course of his time at the hospital was an act. Dr. Shiener opined that Teal’s decision to end his life arose from his illness and was not a conscious decision, but he also admitted that Teal “was conscious when he made the decision and he had some intent, but his motivation and his choice of that solution arose out of his illness.” Defendants moved for summary disposition under MCR 2.116(C)(8) and (10), claiming that plaintiff had failed to establish a causal link between their actions and Teal’s suicide. The trial court granted defendants’ motions for summary disposition, recognizing that the causation element had not been established. On appeal, plaintiff challenges the trial court’s orders granting summary disposition to defendants, arguing that Dr. Shiener’s testimony established a question of material fact regarding whether defendants’ allegedly negligent decision to discharge Teal on March 22, 2004, directly resulted in his suicide. In particular, she argues that the trial court should have recognized that Dr. Shiener’s expert testimony created a question of material fact regarding whether defendants’ malpractice was the proximate cause of Teal’s death. Plaintiff also contends that defendants discharged Teal without properly treating his alcoholism and depression and with the knowledge that he did not have an appropriate support system at home, thereby placing him in a situation in which it was more probable than not that he would commit suicide. We disagree with plaintiffs assertions of error and conclude that summary disposition was appropriate in this case. Teal’s suicide was too remote in time, and likely too influenced by intervening factors, to establish a question of material fact regarding the causation element. We review de novo a trial court’s grant of summary disposition under MCR 2.116(C)(8) and (10). Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). “In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants.” MCL 600.2912a(2). “ ‘In a medical malpractice case, the plaintiff bears the burden of proving: (1) the applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury. Failure to prove any one of these elements is fatal.’ ” Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 492; 668 NW2d 402 (2003), quoting Wischmeyer v Schanz, 449 Mich 469, 484; 536 NW2d 760 (1995). “ ‘Proximate cause’ is a legal term of art that incorporates both cause in fact and legal (or ‘proximate’) cause.” Craig v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004). In Skinner v Square D Co, 445 Mich 153, 163; 516 NW2d 475 (1994), our Supreme Court defined these terms as follows: The cause in fact element generally requires showing that “but for” the defendant’s actions, the plaintiffs injury would not have occurred. On the other hand, legal cause or “proximate cause” normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences. [Citations omitted.] “As a matter of logic, a court must find that the defendant’s negligence was a cause in fact of the plaintiffs injuries before it can hold that the defendant’s negligence was the proximate or legal cause of those injuries.” Craig, supra at 87. The Craig Court explained cause in fact and legal causation in more detail: Generally, an act or omission is a cause in fact of an injury only if the injury could not have occurred without (or “but for”) that act or omission. While a plaintiff need not prove that an act or omission was the sole catalyst for his injuries, he must introduce evidence permitting the jury to conclude that the act or omission was a cause. It is important to bear in mind that a plaintiff cannot satisfy this burden by showing only that the defendant may have caused his injuries. Our case law requires more than a mere possibility or a plausible explanation. Eather, a plaintiff establishes that the defendant’s conduct was a cause in fact of his injuries only if he “set[s] forth specific facts that would support a reasonable inference of a logical sequence of cause and effect.” A valid theoiy of causation, therefore, must be based on facts in evidence. And while “ ‘[t]he evidence need not negate all other possible causes,’ ” this Court has consistently required that the evidence “ ‘exclude other reasonable hypotheses with a fair amount of certainty.’ ” [Id. at 87-88 (emphasis in original; citations omitted).] The Craig Court then noted that testimony that only establishes a correlation between conduct and injury is not sufficient to establish cause in fact because “[i]t is axiomatic in logic and in science that correlation is not causation.” Id. at 93. Therefore, a plaintiff cannot establish causation if the connection made between the defendant’s negligent conduct and the plaintiffs injuries is speculative or merely possible. Id. Plaintiff fails to establish that defendants’ decision to discharge Teal early and without a discharge plan was the “but for” cause of Teal’s suicide. Admittedly, if defendants had locked Teal away for the rest of his life without access to a piece of rope or cord, he likely would not have hanged himself at his home on March 30, 2004. But this Court cannot determine whether defendants were the cause in fact of Teal’s suicide by imagining every possible scenario and determining whether the likelihood of Teal’s death would have diminished in each situation. Instead, the requirement is affirmative: plaintiff must provide sufficient evidence to establish “ ‘a reasonable inference of a logical sequence of cause and effect,’ ” Craig, supra at 87, quoting Skinner, supra at 174, and not merely speculate, on the basis of a tenuous connection, that Teal would not have committed suicide if he had not been discharged on a given day more than a week before. In this case, Teal’s suicide occurred eight days after his discharge from the hospital psychiatric ward. The evidence presented to the trial court established that Teal had been discharged after he realized that suicide was not the answer to his problems, received medication, and recognized the need to resume attending AA meetings and to receive treatment for his mental condition and alcoholism. When he was discharged, Teal agreed to live with a family member, continue taking psychiatric medications, resume AA meetings, and attend follow-up meetings with a therapist and, if necessary, a psychiatrist. Yet after his discharge, Teal’s whereabouts were largely unknown until March 29, 2004. The parties presented no conclusive information regarding Teal’s mental state during this time, his changing moods over this time, or whether he was taking the medication prescribed for him on his release from the hospital. Plaintiff also presented no evidence indicating how Teal’s discharge, whether premature or not, triggered a chain of events leading to Teal’s suicide. In the absence of such evidence, plaintiffs claim that defendants’ alleged malpractice caused Teal’s death eight days later constitutes mere speculation. The parties dispute whether an intervening cause, such as the failure of Berntsen or Gentz to detain Teal when he came to the center for treatment or his wife’s failure to take Teal’s telephone calls just before his death, broke the chain of causation linking defendants’ alleged negligence to Teal’s death. Yet this debate merely illustrates the speculation to which the parties resorted in order to identify the cause of Teal’s suicide. One might speculate that Teal might not have committed suicide if the center had detained him on March 29 or 30, but the parties do not provide evidence identifying the grounds on which this detention could have occurred. And that is just the point. Any arguments regarding the causes of Teal’s suicide are speculative, because there is scant evidence establishing Teal’s mental state, thoughts, and suicidal tendencies after his discharge from the hospital. This is not a situation in which defendants knew that Teal was suicidal and would kill himself as soon as he had the chance, yet discharged him and watched as he collected rope, made a noose, and hanged himself from a nearby tree. It was not evident in this case that but for defendants’ decision to discharge Teal on March 22, Teal would not have killed himself on March 30. Plaintiff failed to establish a reasonable inference, based on a logical sequence of cause and effect, that defendants’ actions triggered the causal chain leading to Teal’s suicide. Dr. Shiener was plaintiffs only expert witness, and the evidence he provided did not establish “but for” causation. Expert testimony is generally required in medical-malpractice cases. Woodard v Custer, 473 Mich 1, 6; 702 NW2d 522 (2005); Locke v Pachtman, 446 Mich 216, 231-232; 521 NW2d 786 (1994). In Thomas v McPherson Community Health Ctr, 155 Mich App 700, 705; 400 NW2d 629 (1986), this Court specifically held that expert testimony is required to establish causation in an action for medical malpractice. However, an “expert opinion based upon only hypothetical situations is not enough to demonstrate a legitimate causal connection between a defect and injury.” Skinner, supra at 173. Instead, plaintiffs must “set forth specific facts that would support a reasonable inference of a logical sequence of cause and effect.” Id. at 174. “ ‘[T]here must be facts in evidence to support the opinion testimony of an expert.’ ” Id. at 173 (citation omitted). “ ‘The evidence need not negate all other possible causes,’ ” but the evidence of causation “ ‘must exclude other reasonable hypotheses with a fair amount of certainty.’ ” Id. at 166, quoting 57A Am Jur 2d, Negligence, § 461, p 442. Dr. Shiener’s testimony failed to establish a causal connection between defendants’ actions and Teal’s suicide. Dr. Shiener admitted that he had not been given much information regarding Teal’s whereabouts between March 22 and 29, 2004. Dr. Shiener noted that the intake report compiled by the center on March 29 merely indicated that after his discharge on March 22, Teal had been attempting to resume his carpentry work to occupy his thoughts and time but had trouble focusing and that he had been contacting friends as needed. Teal also denied having a suicidal intent at the time. Dr. Shiener maintained that defendants’ decision to discharge Teal led to his suicide, but he could not refer to any facts or establish a causal chain of events that would support his opinion. Consequently, Dr. Shiener’s testimony does not establish that defendants’ actions were the cause in fact of Teal’s suicide. Because plaintiff has failed to establish that defendants’ actions were a cause in fact of Teal’s suicide, plaintiff has also failed to establish that defendants’ actions are a proximate cause of Teal’s death. See Craig, supra at 87. Because plaintiff failed to establish the causation element of her medical-malpractice claim, we uphold the trial court’s order granting defendants’ motions for summary disposition. Affirmed. Dr. Luven Tejero, the attending physician, noted in Teal’s discharge report that after Teal was placed back on antidepressants and encouraged to participate in individual and group therapy sessions, [h]e became much more pleasant and cooperative as well as future oriented. His sleep and appetite normalized and he felt much more hopeful about the future. He was able to. express appropriate remorse and regret for his recent actions stating that it was “not a good thing” referring to his suicide attempt. He also felt very grateful to the friend who had interrupted the process and also reported talking to him on the phone and thanking him for doing that. The patient also stated that he planned to get back to work as well as continue to remain on his medication. He states [sic] that he wanted to get back in therapy with his counselor and also stated that he would work on getting a psychiatrist to continue his treatment. The patient’s participation in individual and group therapy sessions improved greatly and he denied having any further suicidal ideations. A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim on the pleadings alone. Maiden v Rozwood, 461 Mich 109, 119-120; 597 NW2d 817 (1999). “All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant.” Id. at 119. A motion for summary disposition under MCR 2.116(C)(8) “may be granted only where the claims alleged are ‘so clearly unenforceable as a matter of law that no factual development could possibly justify recovery’ ” Id., quoting Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992). “A trial court tests the factual support of a plaintiff’s claim when it rules upon a motion for summary disposition filed under MCR 2.116(0(10).” Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). “The court’s task is to review the record evidence, and all reasonable inferences therefrom, and determine whether a genuine issue of material fact exists to warrant a trial.” Harrison v Olde Financial Corp, 225 Mich App 601, 605; 572 NW2d 679 (1997). Documentary evidence submitted by the parties is viewed in the light most favorable to the nonmoving party. Greene v A P Products, Ltd, 475 Mich 502, 507; 717 NW2d 855 (2006).
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Bronson, P.J. Plaintiff appeals as of right from a September 10, 1982, Court of Claims order in favor of defendant denying plaintiffs claim for a single business tax refund in the amount of $7,885. This case involves the construction and interplay of various sections of the Michigan Single Business Tax Act (SBTA), MCL 208.1 et seq.; MSA 7.558(1) et seq. The parties dispute the amount of tax due from plaintiff for the taxable year 1978. The starting point for determining SBTA liability is SBTA § 9, MCL 208.9; MSA 7.558(9), which uses business income as a basis and then provides for certain additions and subtractions thereto in order to arrive at the taxpayer’s "tax base”. Under Chapter 3 of the SBTA, multistate enterprises must apportion part of their tax base to their Michigan operations. The general method for calculating this apportioned or "adjusted tax base” is set forth in SBTA §31(2), MCL 208.31(2); MSA 7.558(31X2). The SBTA then imposes a 2.35% tax on the business’s adjusted (Michigan) tax base. An alternative method of calculating the adjusted tax base is provided in SBTA § 31(5), MCL 208.31(5); MSA 7.558(31)(5). The reason for this optional method is that, under the SBTA, a taxpayer’s tax base includes compensation paid by a taxpayer business, SBTA § 9(5), MCL 208.9(5); MSA 7.558(9)(5). Thus, to provide some tax relief for labor intensive businesses, the Legislature enacted SBTA § 31(5). At the time of the filing of this case in the lower court, § 31(5) provided: "(5) In lieu of the adjustment provided in subsection (2) or (3) a person may elect to reduce the adjusted tax base by the percentage that the compensation divided by the total tax base exceeds 63%. The deduction shall not exceed 37% of the adjusted tax base.” The first issue presented in this case is what is the proper calculation of the percentage reduction of adjusted tax base under SBTA § 31(5) in determining plaintiffs 1978 SBTA liability. The dispute focuses on the construction of both the § 31(5) "compensation numerator” and the "total tax base denominator”. Resolution of this issue is complicated in the instant case by the fact that, although compensation is generally included in a taxpayer’s tax base, certain types of compensation are exempted from taxation. Relevant to the instant appeal is the exemption provided in SBTA § 35(l)(e), MCL 208.35(l)(e); MSA 7.558(35)(l)(e): "That portion of the payroll of domestic insurers or of a marketing corporation that constitutes insurance sales commissions paid to employees and salaries of employees primarily concerned with the adjustment of claims. This exemption shall not apply to a marketing corporation which is not controlled, directly or indirectly, by stock ownership or common management, by the domestic insurer or insurers from which it derives all or substantially all of its gross income, exclusive of income from investments.” At the time this case was filed, the statute did not state whether the term "compensation” in § 31(5) included exempted compensation. Plaintiff argues that the "compensation numerator” of § 31(5) includes all compensation (whether exempt or not). Defendant contends that the § 35(l)(e) exemption for compensation should be deducted from the "compensation numerator” in arriving at the § 31(5) reduction. Recently, in Bechtel Power Corp v Dep’t of Treasury, 128 Mich App 324; 340 NW2d 297 (1983), lv applied for (1983), this Court rejected the petitioner’s argument that the "compensation numerator” in § 31(5) included specific compensation exempt under § 35(l)(f). The Court agreed with the department that, having excluded a specific amount of compensation from the scope of taxation pursuant to § 35(l)(f), the Legislature could not have intended to permit inclusion of that excluded compensation for purposes of obtaining further tax relief under § 31(5). Bechtel, p 329. The Court’s construction received support in 1982 PA 414 which amended § 31(5) to provide that "for purposes of computing the deduction allowed by [§ 31(5)], * * * compensation shall not include amounts of compensation exempt from tax under section 35(l)(e) or (f)”. We adopt the Bechtel Court’s construction of § 31(5) and conclude that the "compensation numerator” does not include compensation exempt under § 35(l)(e). Plaintiff asserts that since this issue was not contested below and the percentage reduction was calculated by including all compen sation into the numerator, this issue is not properly before this Court. We disagree. The overriding issue is what is the computation of the proper adjusted tax base deduction pursuant to § 31(5). To construe only the denominator provision while declining to address the numerator issue would result in an erroneous application of § 31(5) and serve little purpose. We conclude that the numerator was erroneously computed and remand this cause for recomputation in light of our construction of the numerator provision. We now turn to the calculation of the § 31(5) denominator. Plaintiff argues that the term "total tax base” in the denominator means the tax base after allocation or apportionment as provided in Chapter 3 of the SBTA. The lower court found that the meaning of the term "total tax base” was unclear, but, after applying principles of statutory construction, ruled that the Legislature intended "total tax base” as used in SBTA § 31(5) to mean the SBTA § 9 tax base prior to apportionment. We agree with the lower court. The primary and fundamental rule of statutory construction is that the court ascertain and give effect to the intention of the Legislature. White v Ann Arbor, 406 Mich 554; 281 NW2d 283 (1979). Where ambiguities exist in a statute or a statute is susceptible of two or more meanings, legislative intent may be found by looking to the purpose and objectives sought to be accomplished. Poole v Bd of Canvassers of Wayne County, 88 Mich App 299; 276 NW2d 587 (1979). The numerator of the § 31(5) fraction (whether or not it includes exempt compensation) is an unapportioned figure, i.e., it does not reflect only that compensation properly allocated to a taxpayer’s Michigan business activity. Plaintiff’s con struction of the term "total tax base” would yield the result that this unapportioned compensation would be divided by an apportioned tax base in order to determine by what percentage the adjusted tax base is reduced. Section 31(5) is designed to give a tax break to labor-intensive businesses. It would be illogical to measure labor intensity by comparing worldwide compensation to a Michigan-only tax base. In support of its construction, plaintiff relies on SBTA § 31(8), which provided: "(8) For the purposes of subsections (5), (6), and (7) and section 36, when calculating the total tax base the effects of the adjustments provided in section 23 shall be excluded and any depreciation, amortization, or immediate or accelerated write-off related to the cost of tangible assets not added in section 9(4)(c) shall be included.” Since § 23 provides for adjustments after apportionment, plaintiff argues that "total tax base” means § 9 tax base after apportionment. Contrary to plaintiff’s contention, we believe that § 31(8) supports the lower court’s construction of the term "total tax base”. 1981 PA 208 deleted the term "total tax base” and supplanted it with the term "tax base”. 1981 PA 208, § 3, explains the amendment as follows: "Deletions of the word ’total’ made by this amendatory act in section 31 of the single business tax act, Act No. 281 of the Public Acts of 1975, as amended, being section 208.35 of the Michigan Compiled Laws, shall serve to cure and clarify any misinterpretation of the operation of section 31 since the effective date of Act No. 273 of the Public Acts of 1977. When originally enacted by Act No. 228 of the Public Acts of 1975, section 31 used the term 'total tax base’ to indicate that the exclusions made by section 9(4)(c) of the single business tax act of a portion of the depreciation, amortization, or immediate or accelerated write-off related to the cost of tangible assets should be added back to the tax base, before apportionment or allocation, for purposes of section 31. However when, by Act No. 273 of the Public Acts of 1977, section 9(4)(c) was amended to require that all depreciation, amortization, or immediate or accelerated write-off related to the cost of tangible assets be included in a person’s tax base, there became no difference between the 'tax base’ and 'total tax base’ of a person. The deletion of the word ’total’ by this amendatory act is an expression of the Legislature’s intent that the terms ’total tax base’ and ’tax base’ were, since the effective date of Act No. 273 of the Public Acts of 1977, to be considered synonymous and that its deletion by this amendatory act should be interpreted as a resolution of further misinterpretations. ” (Emphasis added.) Finally, we believe that to construe "total tax base” to be less inclusive than "tax base” perverts the plain meaning of the word "total” by defining "total tax base” as something less than tax base. Accordingly, we hold that the lower court correctly construed "total tax base” in § 31(5) to be the tax base prior to § 40 allocation or § 41 apportionment. The second major question presented in this case results from the act’s failure to specify whether the § 35(l)(e) compensation exemption applies before or after apportionment. The § 35(l)(e) exemption is not limited to a taxpayer’s Michigan business activity. Section 35(l)(e) provides the labor-intensive taxpayer with a tax benefit; we do not believe the Legislature intended to additionally provide a benefit derived from the disproportionate application of an unapportioned compensation deduction against an apportioned tax base. Once again we conclude that the purposes of the SBTA are furthered by subtracting the § 35(l)(e) exemption from a taxpayer’s unapportioned tax base. Plaintiff’s reliance on the language and structure of the act is unconvincing. Section 35(l)(a), which provides for another type of exemption, states that, in calculating the § 35(l)(a) exemption, an after-apportionment tax base should be used. Contrary to plaintiff’s assertion, § 35(l)(a), by specifically limiting an after-apportionment tax base "for the purposes of this subdivision”, strongly implies that subdivision (a) alone is to be applied after apportionment. We are similarly unpersuaded that the definition of "adjusted tax base” in § 31(2) indicates that the § 35(l)(e) exemption should be taken after apportionment. Rather, the only link between adjusted tax base and the compensation exemption is that, once the § 31(5) percentage reduction is computed, the resulting deduction is subtracted from the adjusted tax base. In summary, we hold that the § 35(l)(e) compensation exemption is applied in reaching a taxpayer’s "tax base” under § 9 before apportionment. Furthermore, in calculating the § 31(5) fraction used in reducing the adjusted tax base, compensation exempted by § 35(l)(e) is not included in the compensation numerator and the unapportioned § 9 tax base should be used as the denominator. Remanded for recomputation in accordance with this opinion. "Compensation” is defined in § 4(3), MCL 208.4(3); MSA 7.558(4X3). MCL 208.31(2); MSA 7.558(31)(2). MCL 208.31(3); MSA 7.558(31)(3). The greater the amount of the "compensation numerator” and the smaller the amount of the "total tax base denominator”, the greater will be the percentage reduction of the adjusted tax base. Accordingly, plaintiff argues in support of a larger compensation number, but a smaller total tax base number, than does defendant. The Court rejected the petitioner’s attack on the alleged unlawful retroactive application of 1982 PA 414 because its result was wholly based on construction of the statute as it existed prior to the amendment. Clarifying amendments may be enacted where uncertainty exists as to the meaning of a statute in order to make "plain what the legislative intent had been all along from the time of the statute’s original enactment”. Detroit Edison Co v Janosz, 350 Mich 606, 614; 87 NW2d 126 (1957).
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Per Curiam. Plaintiff appeals as of right from the granting of defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8). Plaintiff filed a complaint pursuant to the Freedom of Information Act (foia), MCL 15.231 et seq.; MSA 4.1801(1) et seq., seeking information from the State Board of Law Examiners and the Michigan Supreme Court regarding the denial of his request for a waiver from the Michigan Bar examination. We affirm. Plaintiff claims that the trial court erred in granting defendants’ motion for summary disposition. On appeal, this Court reviews the trial court’s grant or denial of a summary disposition motion de novo. MCR 2.116(C)(8) permits summary disposition when the opposing party fails to state a claim upon which relief can be granted. A motion pursuant to MCR 2.116(C)(8), therefore, determines whether the opposing party’s pleadings allege a prima facie case. A court may grant a motion pursuant to MCR 2.116(C)(8) only where the claim is so clearly unenforceable as a matter of law that no factual development would possibly justify recovery. Garvelink v Detroit News, 206 Mich App 604, 607-608; 522 NW2d 883 (1994). Under the foia, a public body must disclose all public records that are not specifically exempt under the act. MCL 15.233(1); MSA 4.1801(3X1). However, the foia excludes the judiciary from its definition of a "public body.” MCL 15.232(b)(v); MSA 4.1801(2Xb)(v). Plaintiff argues that the trial court erred in determining that the Board of Law Examiners is an agent of the judiciary and therefore is not subject to the disclosure requirements of the foia. We find no error. The Michigan Supreme Court supervises, regulates, and controls the Board of Law Examiners in the exercise of its functions. MCL 600.904; MSA 27A.904; MCL 600.925; MSA 27A.925. This Court has previously held that the Board of Law Examiners is a judicial agency. Scullion v State Bd of Law Examiners, 102 Mich App 711, 714; 302 NW2d 290 (1981). Plaintiff’s contention that Scullion does not apply because that case dealt with the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., not the foia, is wdthout merit. Plaintiff also argues that the trial court was unduly influenced in its decision to grant defendants’ motion for summary disposition by the contents of a letter written by Chief Justice Michael F. Cavanagh denying plaintiff’s foia request. We find no evidence to support plaintiff’s claim. Defendants provided Chief Justice Cavanagh’s letter to the lower court to establish the facts of the case. The transcript of the hearing clearly shows that the trial court based its decision on the applicable law, not on Chief Justice Cavanagh’s letter. Affirmed.
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Hood, J. On June 3, 1982, the trial court granted partial summary judgment for plaintiff. It held that defendant’s ordinance requiring an inspection for one- and two-family dwellings is unconstitutional. Defendant appeals by leave granted. Basically, defendant’s ordinance, 124-H, §§ 12-7-1 et seq., requires a valid certificate of approval or a valid inspection report from defendant before a person may sell or transfer a one- or two-family residential structure in the city. It also authorizes an inspection fee. On June 10, 1981, plaintiff sued defendant, alleging that the ordinance is invalid for numerous reasons, including: (1) the city was without authority to regulate such sales and to demand an inspection fee; (2) the ordinance violated equal protection; (3) the ordinance amounted to an unconstitutional taking of property without due process; and (4) the ordinance authorized an unconstitutional search and seizure. In its order granting partial summary judgment, the circuit court ruled that the ordinance: "constituted a taking of property of plaintiff and the members of the class without due process of law, contrary to §17 of art 1 of the Michigan Constitution'of 1963 and the 14th Amendment to the United States Constitution and, further, that defendant was, under the law of the State of Michigan, without either express or implied authority or delegated authority to either regulate or restrict the sales of one or two family residential structures within its boundaries, and certainly not for the purposes which are claimed or appear on this record;” We disagree on both counts. First, we believe that defendant does have the power to enact such an ordinance. Second, the ordinance does not constitute an unconstitutional taking of property without due process. _ Defendant’s Authority To Enact Ordinance 124-H, §§ 12-7-1 et seq. Generally, "[t]he police power rests in the State”. Attorney General ex rel Lennane v Detroit, 225 Mich 631, 638; 196 NW 391 (1923). This power belongs to a municipality only if specifically conferred on it by statute or by the Constitution. Clements v McCabe, 210 Mich 207, 215; 177 NW 722 (1920); Kalamazoo v Titus, 208 Mich 252; 175 NW 480 (1919). The 1908 Constitution, however, changed the role of the municipality in our governmental life in this state. Const 1908, art 8, § 21 stated: "Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter and to amend an existing charter of the city or village heretofore granted or passed by the legislature for the government of the city or village and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the constitution and general laws of this state.” This section was readopted in essentially the same form in Const 1963, art 7, § 22. The home rule act as it now stands includes: "Each city charter shall provide * * *: * * * For the public peace and health and for the safety of persons and property”. MCL 117.3(j); MSA 5.2073(j). In other words, before 1908, "municipal corporations exercised only such powers as were expressly granted to them by the legislature "* * * [U]nder [the 1908] Constitution and our home-rule cities act, cities may exercise substantially greater powers essential to local self-government than they previously were allowed to exercise.” Dooley v Detroit, 370 Mich 194, 207, 210; 121 NW2d 724 (1963). See also Gallup v Saginaw, 170 Mich 195; 135 NW 1060 (1912). The home rule act is to be liberally construed. Mikelsavage v Detroit, 343 Mich 566; 73 NW2d 266 (1955); 1426 Woodward Avenue Corp v Wolff, 312 Mich 352; 20 NW2d 217 (1945); Detroit v Recorder’s Court Judge, 104 Mich App 214; 304 NW2d 829 (1981), lv den 413 Mich 866 (1982). In People v Sell, 310 Mich 305, 315; 17 NW2d 193 (1945), the Supreme Court ruled that "[e]xcept as limited by the Constitution or by statute, the police power of Detroit as a home rule city is of the same general scope and nature as that of the State”. See also Tally v Detroit, 54 Mich App 328, 334; 220 NW2d 778 (1974). In Cady v Detroit, 289 Mich 499, 514; 286 NW 805 (1939), app dis 309 US 620; 60 S Ct 470; 84 L Ed 984 (1940), the Supreme Court defined police power expansively: "Ordinances having for their purpose regulated municipal development, the security of home life, the preservation of a favorable environment in which to rear children, the protection of morals and health, the safeguarding of the economic structure upon which the public good depends, the stabilization of the use and value of property, the attraction of a desirable citizenship and fostering its permanency are within the proper ambit of the police power. Changes in such regulations must be sought through the ballot or the legislative branch.” (Emphasis added.) The police power is elastic and changes shape as varying social conditions demand. Michigan Canners & Freezers Ass’n, Inc v Agricultural Marketing & Bargaining Bd, 397 Mich 337; 245 NW2d 1 (1976); Sell, supra, 310 Mich 316. Although even a home rule city does not have power concurrent with the Legislature and in fact needs at least statutory authorization to pass such ordinances, we rule that defendant does generally have the power to require an inspection before a home owner may sell his one- or two-family residence. Such an inspection deters fraud and helps enforce the city’s building code. Both the means and goals are validly within defendant’s police power. The home rule act by itself is specific enough to grant defendant the authority to enact such an ordinance. Not only does defendant normally have the power to enact an ordinance such as 124-H, §§ 12-7-1 et seq., but the ordinance does not conflict with any statute. Michigan’s first housing code, 1917 PA 167, contained the following provision: "The provisions of the act shall be held to be the minimum requirements adopted for the protection of health, welfare and safety of the community. Nothing herein contained shall be deemed * * * to prevent any city * * * from enacting and putting in force from time to time ordinances and regulations imposing requirements higher than the minimum requirements laid down in this act; nor shall anything herein contained be deemed to prevent * * * such ordinances and regulations, remedies and penalties similar to those prescribed herein. And every such city * * * is empowered to enact such ordinances and regulations and to prescribe for their enforcement.” § 8._ Every housing code since has had a similar provision. Clearly, under the standard enunciated in People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977), cert den 435 US 1008; 98 S Ct 1879; 56 L Ed 2d 390 (1978), there has been no pre-emption. Plaintiff takes the position that the ordinance conflicts with the statutes in two ways. First, she argues that the ordinance is invalid because the standards used for the point-of-sale inspections are lower than those required by MCL 333.12211; MSA 14.15(12211). We disagree. The city may continue to enforce state-mandated requirements by other, more standard means. The particular inspection method challenged here is aimed at the specific practice of fraudulent conveyance of homes with serious structural and other deficiencies. This supplemental form of housing regulation is not expressly forbidden by statute. Such fraudulent transactions pose an obvious threat to the health and welfare of defendant’s citizens, and an ordinance directed against them is within the authority of the City of Detroit. Second, plaintiff claims that the ordinance violates MCL 565.5; MSA 26.524 by imposing an implied warranty "that the dwelling conforms with the inspection guidelines”. In her complaint, plaintiff alleged that she had contracted to sell her property and that the implied warranty had thus arisen from the sale. However, such contracts are specifically excluded from the definition of "conveyance” as used in MCL 565.5; MSA 26.524. Weeks v Slavik Builders, Inc, 24 Mich App 621, 628; 180 NW2d 503 (1970), aff'd 384 Mich 257; 181 NW2d 271 (1970). Plaintiff also argues that defendant lacks authority to collect its inspection fee. However, MCL 438.31a; MSA 19.15(la) expressly authorizes it: "A charge for inspection required by a local unit of government shall be paid by the seller and shall not be charged to the borrower.” Plaintiffs arguments are therefore unconvincing. Due Process — Unconstitutional Taking of Property The term "property” as used in the Due Process Clause "includes not only title and possession, but also the rights of acquisition and control, the right to make any legitimate use or disposal of the thing owned, such as to pledge it for a debt, or to sell or transfer it”. Rassner v Federal Collateral Society, Inc, 299 Mich 206, 214; 300 NW 45 (1941). The mere fact that property itself has not been physically taken does not necessarily mean that the Due Process Clause has not been violated: "[WJhere the value is destroyed by the action of the government, or serious injury is inflicted to the property itself, or exclusion of the owner from its enjoyment, * * * it is a taking within the * * * Constitution.” Pearsall v Board of Supervisors of Eaton County, 74 Mich 558, 561; 42 NW 77; 4 LRA 193 (1889). See also Buckeye Union Fire Ins Co v Michigan, 383 Mich 630, 641-642; 178 NW2d 476 (1970). On the other hand: " 'not every destruction or injury to property by governmental action has been held to be a "taking” in the constitutional sense.” Armstrong v United States, 364 US 40, 48; 80 S Ct 1563; 4 L Ed 2d 1554 (1960). Rather, the determination whether a state law unlawfully infringes a landowner’s property in violation of the Taking Clause requires an examination of whether the restriction on private property 'forc[es] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ Id. [p 49; 80 S Ct 1563; 4 L Ed 2d 1554]. This examination entails inquiry into such factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations. * * * When 'regulation goes too far it will be recognized as a taking.’ ” PruneYard Shopping Center v Robins, 447 US 74, 82-83; 100 S Ct 2035, 2041-2042; 64 L Ed 2d 741, 753 (1980). (Footnote omitted.) In the present case, the ordinance neither destroys nor reduces the property’s value. In fact, if anything, by requiring post-inspection repairs, it enhances value. Rather than preventing the owner from enjoying his or her property, it merely imposes an inspection and a fee. Such a burden on the property holder is light. The inhibition is not on the transfer of property but upon the failure to have the home inspected. On the other hand, the ordinance ensures that one- and two-family dwellings meet certain minimum requirements. The ordinance is defendant’s way of ensuring that a buyer has more recourse on buying a house less valuable than anticipated than merely stoically accepting the saw "caveat emptor”. Moreover, the ordinance helps combat housing deterioration. In summary: "Rights of property, like all other social and conventional rights, are subject to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in it by the Constitution, may think necessary and expedi ent. Holden v Hardy [169 US 366; 18 S Ct 383; 42 L Ed 780 (1898)]. Where the question of the facts established is a fairly debatable one, courts accept and carry into effect the opinion of the legislature. Old Dearborn Distributing Co v Seagram-Distillers Corp [299 US 183; 57 S Ct 139; 81 L Ed 109; 106 ALR 1476 (1936)]. Courts cannot substitute their opinions for that of the legislative body on questions of policy.” Cady, supra, 289 Mich 508-509. The ordinance does not amount to an unconstitutional taking of property without due process. Reversed and remanded. This ordinance is more fully explained in Brand v Hartman, 122 Mich App 326, 330-331, 333; 332 NW2d 479 (1983), held in abeyance by order of the Michigan Supreme Court, Docket No. 71359, September 15, 1983. Plaintiff alleges that the inspection fee in her case was $110. On April 23, 1982, the trial court certified this suit as a class action. Although the parties, particularly plaintiff, have addressed other reasons why the ordinance is (or why it is not) invalid, we will address only the grounds ruled on by the trial court. Dooley in fact called it a "radical” change. 370 Mich 208, fn 4. In Cady, the Supreme Court upheld an ordinance prohibiting the parking of occupied trailers in trailer camps for more than 90 days per year. If it had interpreted Clements the way that plaintiff now requests us to, the Supreme Court in Cady could not possibly have upheld the ordinance. Cases like Detroit v Recorder’s Court Judge, supra, Lennane, supra, and Titus, supra, amply illustrate this point. OAG, 1977-1978, No 5280, p 393 (March 23, 1978), reached the same conclusion. The latest code, enacted by 1978 PA 368, contained the following provision: "This part shall be construed to supplement and not to supersede any powers otherwise vested in local governments. Local governments may adopt ordinances deemed necessary or appropriate to promote the health, safety and welfare of the people of this state.” MCL 333.12222; MSA 14.15(12222), repealed by 1980 PA 431.
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Michael J. Kelly, J. Defendant appeals as of right a judgment of the circuit court awarding plaintiff $500,000. The judgment reflected a jury verdict finding defendant liable for injuries sustained by plaintiff while he was working aboard defendant’s ship. We reverse and remand for a new trial on the issue of damages. This is an action arising under federal admiralty law. In his complaint, plaintiff alleged negligence under the Jones Act, 46 USC 688 et seq., and unseaworthiness under general admiralty and maritime law. At trial, plaintiff relied on the expert testimony of Dr. John Henderson to establish the amount of his lost earning capacity. In calculating earning capacity, Dr. Henderson estimated plaintiff’s future earnings and reduced them by a present-value percentage. On cross-examination, Dr. Henderson acknowledged that he did not take income taxes into consideration; his estimate of plaintiff’s earning capacity was based on gross income. When defense counsel continued to ask about applicable income tax rates, plaintiff’s counsel objected, at which point the parties conferred with the trial judge outside the presence of the jury. The trial judge ruled that defendant would not be permitted to argue to the jury for a tax-based reduction of the expert’s earning capacity estimate. The trial court relied in part on Norfolk & W R Co v Liepelt, 444 US 490, 496-497; 100 S Ct 755; 62 L Ed 2d 689 (1980), in which the Supreme Court held that, in an action under the Federal Employers’ Liability Act (fela), 45 USC 51 et seq., the trial court erred in failing to instruct the jury that its verdict would not be subject to income taxes. Here, because of the trial court’s ruling, defense counsel did not elicit any further testimony regarding the taxability of plaintiff’s future earnings. Shortly before closing arguments, defense counsel raised the issue again, and the trial court repeated its ruling that defense counsel would not be permitted to argue to the jury for a tax-based reduction of the verdict. In another discussion after closing arguments, the trial court once again denied defendant’s request for an instruction to consider income taxes in calculating plaintiff’s future earnings. We believe that the trial court erred in not allowing defendant to inquire into or argue about the taxability of plaintiff’s future earnings. The case relied on by the trial court, Norfolk & WR Co, supra, does not support its ruling. There, the Supreme Court merely upheld an instruction that income taxes should not be considered to adjust the final amount of the verdict after damages had been calculated because any judgment would not be subject to federal or state income taxes. The Court was concerned that " 'todáy’s tax-conscious juries may assume (mistakenly of course) that the judgment will be taxable and therefore make their verdict big enough so that plaintiff would get what they think he deserves after the imaginary tax is taken out of it.’ ” [444 US 497, quoting Domeracki v Humble Oil & Refining Co, 443 F2d 1245, 1251 (CA 3, 1971), cert den 404 US 883, quoting 2 Harper & James, The Law of Torts, § 25.12, pp 1327-1328 (1956).] This concern should not be blurred with the separate and distinct issue whether gross or net income figures are to be used in calculating the wage-loss portion of the verdict. As defendant aptly observes in its brief, "(j']ury verdicts are not subject to income tax liability; but the sums that comprise the jury verdict are intended solely to make a plaintiff whole. People do not bring home gross wages; they bring home after-tax wages.” See also Jones & Laughlin Steel Corp v Pfeifer, 462 US 523, 534; 103 S Ct 2541; 76 L Ed 2d 768 (1983). In fact, while the Norfolk & WR Co Court required an instruction that the verdict would not be subject to income taxes, it reversed an award of damages for future earnings because the award was based solely on gross earnings. The trial court had prohibited evidence regarding how the calculations would have been affected if they had been based on net earnings. The Supreme Court noted at 444 US 493-494: In a wrongful-death action . . . [i]t is [the plaintiffs] after-tax income, rather than his gross income before taxes, that provides the only realistic measure of his ability to support his family. It follows inexorably that the wage earner’s income tax is a relevant factor in calculating the monetary loss suffered by his dependents when he dies. Although the Court’s comments were made in reference to wrongful death suits under the fela, the same principles apply wherever future earnings are awarded in a negligence action under federal law. See Jones & Laughlin, supra at 534 (Longshoremen’s and Harbor Workers’ Compensation Act, 33 USC 901 et seq.); Kirchegessner v United States, 958 F2d 158, 161 (CA 6, 1992) (Federal Tort Claims Act, 28 USC 2674). Accordingly, the trial court erred in prohibiting defendant from arguing that Dr. Henderson’s estimate of plaintiffs future earnings was too high because it did not consider the effect of income taxes. We do not deem the error harmless just because defendant was able to elicit a single acknowledgment from Dr. Henderson that plaintiffs income would have been subject at most to a thirty percent income tax rate. Defendant was unable to explore the effect of this acknowledgment on the calculation of future earnings or to mention it to the jury in closing argument. Dr. Henderson’s acknowledgment merely established that the effect of income taxes on plaintiffs future earnings would not be de minimis. See Norfolk & WR Co, supra at 494, n 7. We therefore remand for a new trial on the issue of damages. On remand, the trial court shall allow questions and evidence regarding the effect of income taxes on plaintiffs future earnings, and it shall instruct the jury to consider income taxes in calculating future earnings. Because it is not possible to determine how much of the original $500,000 verdict constituted compensation for lost future earnings, the new trial shall not be limited solely to that portion of the damages. We need not remand for a trial on defendant’s liability because we deem meritless defendant’s evidentiary arguments concerning the remainder of the trial. The trial court did not abuse its discretion in excluding evidence that plaintiff had an ulterior motive for claiming disability. The evidence was substantially more prejudicial than probative, and defendant was able to present other evidence to discredit plaintiffs motives. MRE 403. The trial court also did not abuse its discretion in finding a Coast Guard officer qualified to render an expert opinion. MRE 702. Gaps in the officer’s expertise were relevant to the weight of the testimony, not its admissibility. People v Gambrell, 429 Mich 401, 408; 415 NW2d 202 (1987). Finally, defendant was not unfairly surprised by plaintiffs testimony that defense counsel was present at a meeting where plaintiff was told to file a fraudulent insurance claim. Nothing more was said in front of the jury, defendant presented other witnesses to rebut the accusation, and the trial court informed the jury that defense counsel denied the accusation. Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
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Per Curiam:. Defendant was charged with two counts of armed robbery, MCL 750.529; MSA 28.797, one count of assault with intent to commit murder, MCL 750.83; MSA 28.278, and possession of a firearm during the commission or attempt to commit a felony, MCL 750.227b; MSA 28.424(2). A jury convicted defendant of two counts of armed robbery, assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and felony-firearm. Defendant was sentenced to 10 to 20 years imprisonment for each armed robbery count, 6 to 10 years for the assault, and 2 years for felony-firearm. Defendant appeals as of right. Sufficient evidence was presented at trial to support defendant’s convictions for armed robbery and assault with intent to do great bodily harm. Although defendant presented an intoxication defense, the prosecution presented several witnesses to refute that defense. The jury verdict, therefore, will not be disturbed on appeal. People v Palmer, 392 Mich 370, 375-376; 220 NW2d 393 (1974). The trial judge did not err by failing to instruct the jury on the lesser included offense of careless, reckless, or negligent use of a firearm; this instruction was not requested and there was no objection to the instructions as given. People v Handley, 415 Mich 356, 360; 329 NW2d 710 (1982). The jury was properly instructed on specific intent. The trial judge used the Standard Criminal Jury Instructions as requested by the Supreme Court in its Administrative Order No. 1977-1, 399 Mich lxxii (1977). There was no violation of the 180-day rule, MCL 780.131; MSA 28.969(1). Once defendant’s original conviction was reversed on appeal, he was no longer an inmate of the state prison awaiting trial on other charges, but a pretrial detainee. Therefore, the statute did not apply. Affirmed.
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V. J. Brennan, P.J. Plaintiffs appeal as of right from a judgment entered against them on May 26, 1982. In their suit, plaintiffs claimed that defendant trespassed on their property when it erected two utility poles and related wires on an area they claimed as their property. After a nonjury trial, the court ruled that the utility poles were within a public right of way and plaintiffs had no cause of action. The key issue in this case is the width of Celery Center Road in Van Burén County. Plaintiffs live and farm on property abutting a portion of that road. They own two neighboring parcels of land along the road. One is unfenced, and plaintiffs have farmed it to within five or six feet of the pavement on Celery Center Road. Plaintiffs purchased the other parcel of property in 1962. This parcel is fenced, the fence running parallel to Celery Center Road at a distance of about 29 feet from its center line. Plaintiffs do not farm outside of that fence, although they do mow it two or three times a summer to within five or six feet of the pavement and have also removed brush from the area. Celery Center Road is a local road, treated by the county as four rods (66 feet) wide. The road was never formally dedicated as a public highway. It does not follow a section line, but is on a quarter section line. Its paved portion is 19 feet wide. It has no gravelled shoulder and no ditch. There was evidence of four types of uses which defendant claims were maintained by the county in the strip of land between the pavement and plaintiffs’ fence: 1. Periodic mowing in the summer to a line five feet from the pavement; 2. Two mailboxes for plaintiffs’ neighbors, one situated two feet from the pavement, the other four feet back from the pavement; 3. A "stop ahead” sign situated eight feet from the pavement; 4. Snow thrown from snow plowing during the winter reaches all the way to plaintiffs’ fence, at least on occasion. It is undisputed that defendant holds a valid franchise from the local township to run utility lines to customers living there. Defendant also secured verbal permission from a member of the Van Burén County Road Commission staff to erect utility poles along Celery Center Road. On December 13, 1978, defendant received written permission on the standard form used by the road commission. The written permit included language requiring defendant to secure permission from abutting landowners before erecting any poles. Defendant had tried to secure permission from plaintiffs’ neighbors across the road, but was unable to. Without securing permission from plaintiffs, it proceeded in November, 1978, before receiving the permit, to erect the eight poles on plaintiffs’ side of the road, next to their fence. The poles are about 27 feet from the center of the road. Defendant had not ascertained whether the road commission had a right of way which included the sites of the utility poles. Plaintiffs protested, both to defendant and to the county. When work did not stop, they filed suit alleging trespass and interference with their farming operations. Plaintiffs sought damages and an order to remove the poles and utility lines. The trial court’s judgment denied them this relief, and plaintiffs have appealed. Plaintiffs first argue that the trial court findings were clearly erroneous. When a trial court makes findings of fact, they must not be set aside by an appellate court unless they are clearly erroneous. GCR 1963, 517.1. A reviewing court must treat the trial court’s findings with substantial deference in light of its superior ability to assess the credibility of evidence. Habersack v Rabaut, 93 Mich App 300, 304; 287 NW2d 213 (1979). Findings of fact should be reversed only if this Court is left with the definite and firm conviction that a mistake has been made. Pohl v Gilbert, 89 Mich App 176, 179; 280 NW2d 831 (1979); Hartford Ins Group v Mile High Drilling Co, 96 Mich App 455, 461; 292 NW2d 232 (1980); Angelo DiPonio Equipment Co v Dep’t of State Highways, 107 Mich App 756, 760; 309 NW2d 566 (1981). The first finding contested by plaintiffs is rendered in the trial court’s opinion as follows: "The Van Burén County Road Commission mowed a five-foot width east beyond the paved portion of the road at least once each summer and more often, as many as three or four times, when it was able to do so, dependent upon crew and funding available.” There was no evidence in the record that the road commission ever mowed the strip in question more than once a year. The finding not only is clearly erroneous, it fails for insufficient evidence. However, the error is harmless since this is not a case trying to establish the line between plaintiffs’ property and that of the road commission with precision. If the five-foot strip is clearly road com mission property, it has no effect on title to the area occupied by the utility poles. The second finding challenged by plaintiffs follows immediately after the first in the record: "Celery Center Road has been open to public travel during the winter months and the road commission plowed snow from the paved portion and threw the snow as far as the fence.” This is not a finding that the snow always was thrown to the fence, nor that the use was notorious, open, or exclusive. As a finding that snow had at least, on occasion, reached the fence, there was sufficient evidence to support it, including some from one of the plaintiffs. On this basis, the finding was not clearly erroneous. The final contested finding reads as follows: "The Van Burén County Road Commission has classified Celery Center Road as a 'local’ secondary road in regard to its right of way, under Public Act 51, which is 66 feet or four rods, and it has certified the road to the State of Michigan as a local road for monies returned to the county under that public act. The road commission has considered where there is a monument, such as a fence, that the right of way would go at least to that point. The maintenance of Celery Center Road has included repair of shoulders and of washouts, as well as snow removal. "The road commission stated it did not surrender dominion over the right of way because it did not mow over one five-foot width and it did plow the throw [sic] snow at least up to the fence as shown in the photographic exhibits.” The only part of this finding upon which there is no evidence is the phrase, "The road commission stated * * *”. The road commission never directly made a statement in this litigation since it was not a party. However, one of its agents did describe the commission’s position without objection. The finding accurately represents the content of that testimony. The ascription of the statement directly to the commission may have been clearly erroneous, but it- is also harmless. Next, we address the question of whether there was sufficient evidence to support a finding of "highway by user” over the disputed area. "Highway by user” is the term given to describe how the public can acquire title to a highway by a sort of prescription where no formal dedication has ever been made. The acquisition of highways by user is governed by MCL 221.20; MSA 9.21: "Sec. 20. All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for 10 years or more, whether any record or other proof exists that they were ever established as highways or not, and all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used 8 years or more, shall be deemed public highways, subject to be altered or discontinued according to the provisions of this act. All highways that are or that may become such by time and use, shall be 4 rods in width, and where they are situated on section or quarter section lines, such lines shall be the center of such roads, and the land belonging to such roads shall be 2 rods in width on each side of such lines.” This language has been heavily modified by subsequent case law. The elements of a highway by user have been elaborated to require evidence of a defined line of travel with definite boundaries, used and worked upon by public authorities, traveled upon by the public for ten (or in some situations eight) consecutive years without interruption, in a manner open, notorious, and exclusive. Alton v Meeuwenberg, 108 Mich 629, 634-637; 66 NW 571 (1896); Indian Club v Lake County Road Comm’rs, 370 Mich 87, 89; 120 NW2d 823 (1963); St Ignace v McFarlane, 45 Mich App 81, 84-85; 206 NW2d 226 (1973). Nor can the use be by permission of the landowner. Pearl v Torch Lake Twp, 71 Mich App 298, 306-307; 248 NW2d 242 (1976), lv den 399 Mich 844 (1977). If the elements are established, the statute operates to raise a rebuttable presumption that the road is four rods wide, or 66 feet. However, if the landowner offers any evidence to rebut the presumption, the situation changes. Evidence that a structure exists within the four-rod statutory width, or any other evidence that the landowner retained control of an area within the statutory width, is sufficient to rebut the presumption. Bain v Fry, 352 Mich 299, 305; 89 NW2d 485 (1958); Eager v State Highway Comm’r, 376 Mich 148, 151-152, 154; 136 NW2d 16 (1965); Laug v Ottawa County Road Comm, 37 Mich App 757, 765; 195 NW2d 336 (1972), lv den 387 Mich 767 (1972); Pearl v Torch Lake Twp, supra, pp 313-314. The parties agree that the fence is within the statutory distance from the road. Therefore, the presumption of a four-rod width is rebutted. Once the presumption is rebutted, the cases clearly hold that the highway cannot be wider than the zone of actual use which meets the test for highways by user outlined above. Eager v State Highway Comm’r, supra, pp 154-155. Defendant’s attempt to distinguish the important Eager case is in vain. The intrusion maintained by the plaintiffs in this case may be less substantial than was the intrusion maintained by the landowner in Eager but it is clearly enough to rebut the presumption. In Eager, the nature and extent of the landowner’s intrusion ceased to be of any importance once the presumption was rebutted. The only question remaining focused entirely on the defendant highway commission’s use of the road. The highway could be no wider than the width the defendant was able to show had been actually used as a highway. "In the instant case there had been no dedication, except as such may be implied or presumed from user for more than the statutory period of repose (Kruger v LeBlanc, 70 Mich 76; 37 NW 880 [1888]; Campau v Detroit, 104 Mich 560; 62 NW 718 [1895]), but such implied dedication, as last above indicated, applies only to the extent of the user. And for good reason, because the implications of dedication resulting from the owner’s permitting uninterrupted public user as a road for the statutory period arises from the fact that such user and statute governing same give the owner notice that, if the means to dispute the rightfulness of the public user, he must assert his right within the statutory period by physical action or suit. Ellsworth v Grand Rapids, 27 Mich 250 (1873). Such notice could not be said to apply to lands not included in the public user. Certainly the owner is not required to dispute the rightfulness of a nonexistent user. The acceptance, by user, cannot exceed the amount of actual or implied dedication.” Eager v State Highway Comm’r, supra, pp 154-155. (Footnote omitted.) See also Scheimer v Price, 65 Mich 638, 639; 32 NW 873 (1887); Yonker v Oceana County Road Comm, 17 Mich App 436; 169 NW2d 669 (1969); Pearl v Torch Lake Twp, supra, p 314. Defendant has attempted to establish use beyond the paved portion of Celery Center Road based on four alleged uses: 1. Summertime mowing of the grass out to five feet from the pavement; 2. Placement of mailboxes up to four feet from the pavement; 3. Placement of a "stop ahead” sign eight feet from the pavement; 4. Throwing snow all the way to the fence during winter snow plowing. The first use, mowing a five-foot strip along the pavement, is sufficient to establish a public use to that distance. Mowing is an example of a public use which would be adequate proof to establish the width of a highway by use as in Pearl v Torch Lake Twp, supra, p 314. There, as here, it was a use needed to make the easement effective for its purposes, primarily to provide a safe field of vision for transportation, as well as being a use which was actually made. Both need and actual use are required for an activity to add to the width of a highway by user. Platt v Ingham County Road Comm, 40 Mich App 438, 440; 198 NW2d 893 (1972). Defendant may also have established use of the spots upon which the sign and the mailboxes are set. (Note the Court’s comment about the catch basin in Eager v State Highway Comm’r, supra, p 155.) However, those uses are not effective to establish the highway by user to their distances all along plaintiffs’ property. The measure of the width of the highway is the width of the actual use at any one location, not " 'the most distant evidence of public activity in either direction’ ”. Laug v Ottawa County Road Comm, supra, p 767. In Laug, the defendant proved a use over 55 feet wide in one spot near the plaintiff’s land, but the Court rejected the defendant’s argument that it had established a highway by user 55 feet wide all along plaintiff’s land. It does not matter if defendant is able to show that the county has a right of way all the way out-to a line drawn from the stop ahead sign parallel to the pavement. This case is not one trying title to the land, or setting boundaries; it is only concerned with whether or not the utility poles are in the right of way. Neither the sign nor the mailboxes are as far from the pavement as the poles. Defendant argues that a use that would include the poles in the highway is the deposit of snow when snowplows throw it all the way to the fence. While plaintiffs do not contest that snow plowing is a use necessary to the purpose of the easement, they dispute that the area upon which the plowed snow falls is actually being used. Seasonal snow plowing, throwing snow outside the mower line, is insufficient to establish user. As the Eager Court made clear, in order for a use to operate to establish a highway by user, it has to be of a nature that puts the landowner on notice that it is adverse to his title, and that he must interdict it somehow to protect his rights. Eager v State Highway Comm’r, supra, pp 154-155. The use must somehow constitute an intrusion upon his property right inconsistent with his possession, i.e., it must be a trespass. We have found no cases in any jurisdiction holding the propulsion of snow onto another person’s property to be a trespass. We find that in this case, seasonal roadway snow plowing did not put the landowner on notice that it was adverse to his title and, therefore, was not a trespass on his land. We find further that the road commission did not acquire a "highway by user” of plaintiffs’ property, which included the location of the utility poles. The road commission had no jurisdiction over that portion of plaintiffs’ property, therefore, it could not give permission to the defendant to place the poles here in dispute. We find a trespass by defendant upon plaintiffs’ lands. Reversed and remanded for determination of damages and/or injunctive relief to be determined upon rehearing by the trial court.
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R. M. Maher, J. On September 22, 1982, defendant was convicted after a jury trial of breaking and entering with intent to commit larceny, MCL 750.110; MSA 28.305, and two counts of armed robbery, MCL 750.529; MSA 28.797. He was acquitted on four counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). He was subsequently sentenced to from 10 to 15 years imprisonment for breaking and entering concurrent with two concurrent terms of from 25 to 50 years for the armed robbery convictions. He appeals as of right. Defendant first argues that the evidence against him for all three convictions was insufficient. Specifically, he claims that the corpus delicti was not adequately established. One of the two victims testified that while she and her husband were in bed in their home at about 2 a.m. on September 2, 1981, six people woke her up and stole some of her property at gunpoint. Because identity is not an element of the corpus delicti, People v Harris, 64 Mich App 503; 236 NW2d 118 (1975); People v Randall, 42 Mich App 187; 201 NW2d 292 (1972), this testimony clearly sufficiently established the corpus delicti for the two armed robbery counts. Whether or not the corpus delicti was established for the breaking and entering count, however, is a more difficult question. The prosecution must prove the corpus delicti before being allowed to use the defendant’s confession. People v Zwierkowski, 368 Mich 56; 117 NW2d 179 (1962). However, the elements need not be proven beyond a reasonable doubt. People v Trine, 164 Mich 1; 129 NW 3 (1910). Courts may draw reasonable inferences and weigh the probabilities. Peterson v Oceana Circuit Judge, 243 Mich 215; 219 NW 934 (1928). The evidence must show that the acts constituting the essential elements have been committed and that someone’s criminality is responsible. People v Conklin, 118 Mich App 90; 324 NW2d 537 (1982). In summary, "the evidence adduced need only tend to show consistency with unlawfulness in causing the injury in question”. 1 Wharton, Criminal Evidence (13th ed), § 17, p 28. In addition to the testimony related above, a police officer testified that within an hour or two of the robberies, he entered the house and noticed that the building’s side door was unlocked and left open. In People v Tiszae, 23 Mich App 114; 178 NW2d 138 (1970), this Court found that the corpus delicti had been sufficiently established where the defendants were arrested in a store at 3:25 a.m. They had their guns drawn and the store’s merchandise was scattered. One of the store’s windows had been broken. Similar facts are found in People v Lambo, 8 Mich App 320; 154 NW2d 583 (1967). The only element that could be contested here is the breaking. In Michigan, any amount of force used to open a door or window to enter the building, no matter how slight, is sufficient to constitute the breaking. People v White, 153 Mich 617; 117 NW 161 (1908); People v Clark, 88 Mich App 88; 276 NW2d 527 (1979). Although the victims might possibly have left the door to their house open, we find this extremely doubtful. It is highly unlikely that a person living in Detroit in the Six Mile-Conner area in 1981 would not at least have closed the doors before retiring to bed. Hence, we can reasonably infer under this case’s facts that the door was closed. Therefore, the corpus delicti was adequately established for the breaking and entering count. Relying on People v West, 122 Mich App 517; 332 NW2d 517 (1983), lv den 418 Mich 909; 342 NW2d 522 (1984), defendant next argues that his convictions for both breaking and entering with intent to commit larceny and armed robbery constitute double jeopardy. Under the facts of its own case, West found double jeopardy where the defendant pled guilty to both breaking and entering with intent to commit larceny and larceny in a building: "When larceny in a store is charged along with breaking and entering a store with the intent to commit a larceny, it is the completed larceny that is being used as the 'some circumstance reasonably leading to the conclusion that a larceny was intended’. The only factual evidence that defendant intended to commit a larceny when he broke and entered is his completed larceny. As such, the two convictions are based on proof of a single act. Under Michigan law, such proof cannot sustain double convictions.” 122 Mich App 521-522. However, this analysis was recently rejected in People v Wakeford, 418 Mich 95, 110-111; 341 NW2d 68 (1983):_ "[D]efendant’s claim of factual double jeopardy depends not upon whether most or all of the same evidence was utilized to convict of both counts [charged], but whether the legislative intent or statutory purpose was that two convictions should result. To the extent certain language in [People v Martin, 398 Mich 303; 247 NW2d 303 (1976), [People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), and [People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980)] suggests that the critical test is whether the defendant committed 'one single wrongful act’, we specifically disavow that test. It is up to the Legislature, not this Court, to determine what constitutes a single offense. The so-called 'factual double jeopardy’ doctrine simply asks whether the Legislature authorized multiple punishment under the circumstances.” Therefore, we must determine whether or not the Legislature intended to allow multiple punishment for both the breaking and entering with intent to commit larceny and the subsequent larceny. To a certain extent, only, one criminal act (or transaction) is committed when a person breaks into a building and then steals something. His main intent is the larceny; the breaking and entering is usually merely the necessary prerequisite before he can accomplish the larceny. Accordingly, the breaking and entering can be viewed as a particular form of an attempted larceny in a building. See People v Cavanaugh, 127 Mich App 632, 637-638; 339 NW2d 509 (1983). One of the main questions asked under the factual double jeopardy analysis Michigan uses is whether or not the one crime is a lesser included offense of the other. Double jeopardy can be found even if the one offense is merely a cognate lesser included offense of the other and not only a necessarily lesser included offense. People v Carter, 415 Mich 558, 584; 330 NW2d 314 (1982); People v Wilder, 411 Mich 328, 344; 308 NW2d 112 (1981). Larceny in a building is a cognate lesser included offense of breaking and entering with intent to commit larceny. People v Brager, 406 Mich 1004; 280 NW2d 826 (1979); People v Kamin, 405 Mich 482, 496; 275 NW2d 777 (1979). But merely because under the facts of a particular case one offense is a cognate lesser included offense of another does not mean that factual double jeopardy will necessarily therefore be found. A cognate lesser included offense is a "lesser offense * * * of the same class or category, or closely related to the originally charged offense, so as to provide fair notice to the defendant that he will be required to defend against it * * People v Ora Jones, 395 Mich 379, 388; 236 NW2d 461 (1975). To a large extent, lesser included offense doctrine rests on the jury’s mercy function. People v Chamblis, 395 Mich 408, 420-423; 236 NW2d 473 (1975). Therefore, provided that the facts would sustain a conviction and that the defendant had fair notice, if properly instructed, the jury could convict the defendant of a cognate lesser included offense even if that offense formed a separate criminal act. Consequently, the issue before us is still the Legislature’s intent. _ Because of the unique nature of breaking and entering, we find the legislative intent to permit double punishment. Some commentators have criticized breaking and entering as an unnecessary offense: "The modern offense cannot be justified from its history. It cannot be rationalized as giving a recognized protection to citizens who have secured themselves in their homes, as was its ancestor, for the requirements of a breaking and entering of a dwelling house have been eroded. It cannot be justified any longer as protecting helpless citizens from the brigands who roam in the night, as the requirement that the acts occur in the nighttime is also vanishing. Nor is protection from serious crime a justification for the offense, for the intent requirement itself is beginning to be eroded. "Burglary is in fact a rather unique type of attempt law, as all the required elements merely comprise a step taken toward the commission of some other offense. While such an approach might have filled a void in the law of attempts during an earlier period, the offense is no longer required to punish or deter such preliminary conduct. The law of attempts is now adequate to reach such conduct. "It is impossible to justify punishing a man so much more severely for attempting to commit a crime when the attempted goal is within some structure than we would for his completing the offense a few feet away. The best way to deal with the offense of burglary would be to abolish it. Modern laws of attempt would better serve in punishing the conduct, as this would better ensure a punishment rationally connected to the grievousness of the offense which was being attempted; an attempted petty theft would no longer be punishable as severely as an attempted murder”. LaFave & Scott, Criminal Law, § 96, pp 715-716. Yet despite these considerations, breaking and entering as an offense still exists: "it [is] so imbedded in the laws and minds of legislatures that [to abolish it would be impossible]”. LaFave & Scott, supra, p 716. Therefore, we conclude that the Legislature has clearly decided to punish for the crime of breaking and entering. Breaking and entering is not a continuing offense. It is completed once the burglar is inside the building. People v Davenport, 122 Mich App 159; 332 NW2d 443 (1982). Therefore, any crimes he commits once inside the building are separate acts and convicting of both does not constitute double jeopardy. People v Petrella, 124 Mich App 745, 765; 336 NW2d 761 (1983). See also People v Tobey, 401 Mich 141, 152, fn 15; 257 NW2d 537 (1977). In Carter, supra, 415 Mich 586, the Supreme Court held that convicting a defendant of both conspiracy and aiding and abetting does not constitute double jeopardy: "The conspiracy statute punishes the planning of the offense and focuses upon the alleged 'special dangers’ resulting from group action. On the other hand, the aiding and abetting statute punishes the actual commission of the crime.” Likewise, in the present case, the breaking and entering statute punishes the particular type of attempt used to commit the substantive offense. The armed robbery statute punishes the substantive offense itself. In Wakeford, supra, the Supreme Court ruled: "When two offenses are separate and distinct, a * * * presumption in favor of multiple punishment may be drawn. * * * While that presumption may be rebutted, e.g., Martin, supra, and Stewart, supra, the legislative intent to authorize only a single conviction and punishment should * * * be 'clearly expressed’.” 418 Mich 110, fn 14. Consequently, we conclude that the Legislature has intended that a defendant may be convicted of both breaking and entering with intent to commit a felony and the completed felony where the evidence shows that the felony was committed after the breaking and entering. This conclusion has been reached by other panels of this Court. Petrella, supra; People v Joseph, 114 Mich App 70; 318 NW2d 609 (1982), lv den 417 Mich 877 (1983); People v Stinson, 113 Mich App 719; 318 NW2d 513 (1982), lv den 417 Mich 957 (1983); People v Armstrong, 100 Mich App 423; 298 NW2d 752 (1980), lv den 412 Mich 865 (1981); People v Flores, 92 Mich App 130; 284 NW2d 510 (1979), lv den 407 Mich 932 (1979). Furthermore, the vast majority of jurisdictions have ruled that a defendant may be convicted of both burglary and the larceny. _ Defendant next argues that the trial court erred in referring to his statement to the police as a confession. Unless the statement admits guilt, a trial court should not refer to such a statement in the presence of the jury as a confession. People v Cismadija, 167 Mich 210, 214-215; 132 NW 489 (1911). However, although defendant did not admit to all of the elements of all of the offenses charged, what he admitted to strongly showed guilt. Furthermore, the trial court only twice referred to the statement as a confession, both times saying "confession or statement”. Defendant also failed to object. We find no manifest injustice. Defendant next argues that the trial court erred in giving the following instruction on aiding and abetting: "Now, mere presence even with knowledge that an offense is planned or is being committed is insufficient to establish the defendant aided or assisted in the commission of the crime. An aider or abettor is criminally responsible for the acts of his principals when he knows the actual perpetrators have the required intent to commit the crimes that occurred.” The second sentence taken by itself could be misleading. It tends to say that mere knowledge that the principals have the required intent is sufficient to convict. However, defendant failed to object. Once again, we find no manifest injustice. The statement complained of is ambiguous. Although by itself it possibly allows a conviction based on mere knowledge, it does not clearly permit a jury to do so. When a particular jury instruction is ambiguous, this Court will look at the entire jury instructions to resolve the ambiguity. People v Beard, 78 Mich App 636, 639; 261 NW2d 27 (1977), lv den 402 Mich 930 (1978). Just before giving this instruction, the trial court gave CJI 8:1:03. Later, it instructed that aiding and abetting requires specific intent. Reading the instructions as a whole, the trial court properly instructed the jury. Defendant next argues that the trial court erred in failing sua sponte to instruct on defendant’s theory of the case. To the extent that the trial court failed to do this, we reject defendant’s argument for the reasons expressed in People v Peery, 119 Mich App 207; 326 NW2d 451 (1982), lv den 417 Mich 1018 (1983). Defendant next argues that he was denied the effective assistance of counsel. First, he complains that defense counsel failed to request a hearing pursuant to People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965), to attempt to have his statement to the police declared involuntary. However, not every such failure necessarily constitutes ineffective assistance of counsel. Counsel acts ineffectively either if he does not perform at least as well as a lawyer with ordinary training and skill in the criminal law or to conscientiously protect his client’s interests unaffected by conflicting considerations, or if he makes a serious mistake but for which his client would have had a reasonably likely chance of acquittal. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976); People v Caldwell, 122 Mich App 618; 333 NW2d 105 (1983). In the present case, we neither know why defense counsel failed to file the appropriate motion nor how successful such a motion would have been. Because of this lack of an evidentiary record and because defendant has failed to request a remand, this issue has been waived on appeal. People v Ginther, 390 Mich 436; 212 NW2d 922 (1973); People v Lawson, 124 Mich App 371; 335 NW2d 43 (1983). Second, during opening statement, defense counsel stated the following: "In representing this defendant, we will show you, ladies and gentlemen of the jury, and my client will admit to a conspiracy and a breaking and entering of the premises involved herein.” Even if the evidence is overwhelming, defense counsel will often not be allowed to argue the functional equivalent of a guilty plea to the highest possible charges absent any evidence on the record that defendant consented to this tactic. People v Fisher, 119 Mich App 445; 326 NW2d 537 (1982); People v Schultz, 85 Mich App 527; 271 NW2d 305 (1978); Mullins v Evans, 473 F Supp 1321 (D Colo, 1979), aff'd 622 F2d 504 (CA 10, 1980). However, "[u]nder our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney”. Estelle v Williams, 425 US 501, 512; 96 S Ct 1691, 1697; 48 L Ed 2d 126, 135 (1976). Legitimate trial strategy will not be second-guessed. People v Lotter, 103 Mich App 386; 302 NW2d 879 (1981), lv den 412 Mich 852 (1981). Accordingly, arguing that the defendant is merely guilty of the lesser offense is not ineffective assistance of counsel. People v Fabian, 77 Mich App 52; 257 NW2d 673 (1977), lv den 402 Mich 862 (1978); People v Atkins, 81 Ill App 3d 661; 37 Ill Dec 493; 402 NE2d 383 (1980). Where defense counsel in opening statement recognizes and candidly asserts the inevitable, he is often serving his client’s interests best by bringing out the damaging information and thus lessening the impact. State v Gray, 601 P2d 918 (Utah, 1979). In light of defendant’s confession to the police that he had committed the breaking and entering and had been present during the rapes and armed robbery, defendant’s credibility would have been lost if he had testified denying any involvement at all. Since defendant was going to admit his complicity in the breaking and entering, while testifying, defense counsel merely conceded the obvious and used a permissible trial tactic. In fact, it was somewhat successful. Defendant was acquitted of four of the seven charges. In United States v Trapnell, 638 F2d 1016 (CA 7, 1980), the defendant was charged with conspiracy to escape, attempted escape, air piracy and kidnapping. His defense counsel argued that the evidence showed that the defendant was guilty of conspiracy to escape and attempted escape but not of air piracy and kidnapping. In rejecting the ineffectiveness claim, the court stated: "This tactic of admitting what the evidence strongly demonstrates at the same time as denying other elements or other crimes before the jury is also familiar to this court and we find no error in counsel’s use of the tactic.” 638 F2d 1028. In Fisher, supra, this Court ruled, "If a defendant who has pled not guilty wishes to admit his guilt, his attorney should bring his wish to the attention of the trial court so that defendant can be questioned personally. Defendant’s plea of not guilty should not leave him with fewer safeguards than he would have had if he had tendered a guilty plea.” 119 Mich App 449. A similar requirement was established in Earl Wiley v Sowders, 647 F2d 642, 650 (CA 6, 1981), cert den 454 US 1091; 102 S Ct 656; 70 L Ed 2d 630 (1981). However, in both of these cases, the defense lawyers conceded guilt on the most serious charges. To the extent that this requirement applies where defense counsel concedes guilt on a lesser offense hoping to win acquittal on the more serious charges, it has been satisfied in the present case. In Elmer Wiley v Sowders, 669 F2d 386 (CA 6, 1982), the prosecution presented the defendant’s trial counsel’s affidavit on appeal stating that the defendant had consented to the tactic of admitting guilt but asking for mercy. Although an on-the-record inquiry to see if the defendant consented to such a defense is preferable, due process does not require it. 669 F2d 389. In Elmer Wiley, the court remanded for an evidentiary hearing because the defendant on appeal contested his trial counsel’s affidavit. In the present case, defendant, while testifying, admitted to the breaking and entering. Therefore, the record clearly shows his consent to his trial attorney’s tactics. Third, defendant claims that defense counsel prejudiced his case by referring to his statement to the police as a confession in front of the jury. However, because we have already ruled that defendant’s statement was in fact a confession, we find no ineffective assistance of counsel on this point. Fourth, defendant claims that defense counsel should have requested a directed verdict on the breaking and entering count. He argues that the corpus delicti was not adequately established. However, we have ruled that it in fact was adequately established. Therefore, there is no ineffective assistance of counsel. People v Ulister Smith, 124 Mich App 695; 335 NW2d 127 (1983). Defendant next argues that he was denied a fair trial due to prosecutorial misconduct. We agree that a number of the prosecutor’s remarks were highly improper. (1) Attacks on Defense Counsel During closing rebuttal argument, the prosecutor stated: "In all due respect, and for all his years, he is not a very candid person because he hasn’t talked about the evidence. He hasn’t talked about statements that he made to you, he hasn’t talked about his client getting upon the stand and telling you the woman was sexually assaulted. But he will come right back and wave this doctor’s report at you and say subtly, saying she wasn’t sexually assaulted or it would be here. That is not a candid person. Regardless of what you may think of Mike King using profanity, he was not a candid person. His client was not a candid person either. If you believe Mr. Parzens and his client, ladies and gentlemen, the patients are in charge of the hospital. And let me use an illustration. You tell a friend of yours after jury duty, you tell them about the testimony, the unequivocable testimony. Would you have the nerve to tell you friend that based upon that testimony — . "The Court: Mr. King, this Court will not permit you to state that. * * * "But one of the most important things that you have a right to ask of attorneys, whether it is the prosecutor or the defense attorney, you have a right to ask them to be candid with you. And you haven’t heard that from Mr. Parzens. When you think about Mr. Parzens’ closing statement and some statements he made in there, when you think about the testimony you can come to only one conclusion, he intentionally misled you or you were at a different trial listening to different testimony. "Mr. Parzens told you that hey, you know they didn’t find any sperm, therefore, she wasn’t sexually assaulted. And that, ladies and gentlemen, I apologize for that, and I don’t care if he’s been around here for 50 or more years. "Now, Mr. Parzens may try to confuse you regarding the law.” (Emphasis added.) On appeal, the prosecution argues that this argument was proper because "the prosecutor’s comments were not directed at defense counsel personally, but rather at the argument that he made. In fact defense counsel was not very candid about his review of the evidence”. Even though defendant had testified that some of the men (though not he himself) who had entered the house had sexual intercourse with the complainant, defense counsel had stressed in closing argument the doctor’s report which had stated that an examination had failed to find any sperm. However, the prosecutor’s argument cannot be labelled as merely permissibly responding to defense counsel’s argument. The prosecutor may not question de fense counsel’s veracity. People v Bairefoot, 117 Mich App 225, 230; 323 NW2d 302 (1982); Adams v State, 192 So 2d 762 (Fla, 1966); Jackson v State, 41 So 2d 15 (Fla App, 1982). See also People v Hill, 258 Mich 79, 88; 241 NW 873 (1932). When the prosecutor argues that the defense counsel himself is intentionally trying to mislead the jury, he is in effect stating that defense counsel does not believe his own client. This argument undermines the defendant’s presumption of innocence. Commonwealth v Long, 258 Pa Super 312; 392 A2d 810 (1978). Such an argument impermissibly shifts the focus from the evidence itself to the defense counsel’s personality. (2) Civic Duty Argument During rebuttal closing argument, the prosecution stated: "Mr. King: Now, I wasn’t around when Franklin Delano Roosevelt said we have nothing to fear but fear itself, nor was I around when a person by the name of Adam Berg, an English philosopher said for evil to succeed good people must do nothing. And that’s exactly what Mr. Parzens is asking you to do, is to do nothing. He is telling you about a criminal justice system. Based upon the testimony, ladies and gentlemen, if you don’t fínd him guilty of robbery armed, criminal sexual conduct, we don’t have any criminal justice system. And the testimony is only as good as the people that are involved in the system. If you have good people operating a system you are going to get a good result. And if you don’t have good people operating the system you are not going to get a good result.” (Emphasis added.) This argument was clearly improper. People v Wright (On Remand), 99 Mich App 801; 298 NW2d 857 (1980), lv den 410 Mich 854 (1980); People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971). On appeal, the prosecution argues that its argument at trial directly responded to defendant’s closing argument. The allowance of otherwise improper argument is often not reversible error when made in response to a defendant’s argument. People v Duncan, 402 Mich 1, 16; 260 NW2d 58 (1977); People v Allen, 351 Mich 535; 88 NW2d 433 (1958); People v Mills, 94 Mich 630; 54 NW 488 (1893). In the present case, defense counsel did state: "A good many years ago * * * one of our greatest Presidents said the only thing we have to fear is fear itself. Remember that? Some 50 years ago, 50 years. The only thing we have to fear in this case is prejudice.” He then asked the jury not to consider the amount of crime in the community but to consider the case on its facts alone. He also stated: "if our criminal justice system is to prevail, God, I don’t want to be here if it doesn’t”. But, he then told the jury to find guilt only based on the facts and to follow the judge’s instructions on the law. These arguments were proper. Even though a prosecutor may argue matters which are otherwise improper if made in response to a defense counsel’s argument, he is not therefore given license to argue any improper matter. For this Court to condone an improper argument by the prosecutor, it must be made in response to an equally (or more) improper argument by defense counsel. In People v Meir, 67 Mich App 534, 536; 241 NW2d 280 (1976), the defense counsel appealed to the jury’s sympathy by arguing that the Controlled Substances Act was not meant to punish small time users like the defendant but rather the big time pushers. In response, the prosecution asked the jury "how the defendant had ever benefited the community except by his delivery of heroin”. He then told the jurors that the defendant would eventually have to sell heroin to their children to support his habit. This Court reversed, ruling that a prosecutor may not "respond” to a proper argument with an improper one. See also People v Franszkiewicz, 302 Mich 144, 152-153; 4 NW2d 500 (1942). (3) Sympathy for the Victim During the prosecutor’s first closing argument, he stated: "You are going to believe [the rape victim]. And why were you going to believe [her] is because when you come in here with your common sense and a person starts talking about a victim of a crime, the first thing you ask yourself is where was this person. And when you hear she was in bed in the early morning hours with her husband — I hate to sound like — but she had bad luck. Was she doing anything wrong? She certainly wasn’t. What was her motive? Her motive is to come in here and tell you what happened at 2 a.m. in the morning. That’s her motive. And why? Because she wants justice.” A prosecutor may argue that a witness should be believed. People v Jones, 60 Mich App 681; 233 NW2d 22 (1975). In the present case he could ask the jury why the rape victim would make up a story about being raped by four men at 2 a.m. in her home. He could also properly point out the large amount of evidence that corroborated her story. However, the argument the prosecutor used is little more than an appeal to the jury to sympathize with the victim. This type of argument is improper. People v Leverette, 112 Mich App 142, 151; 315 NW2d 876 (1982). (4) Distorting Defendant’s Testimony During rebuttal closing argument, the prosecutor stated: "But one of the most constructive things though, is when you heard the defendant testify under cross-examination. You had to come to the conclusion that he is intelligent and he is cagey, but even admits to you a good principle of law, hey, if my buddies is inside the store robbing somebody and I’m in the car, I’m as guilty as my buddy. Even he recognizes that principle, that is the principle of law I have asked you more than five times to recognize.” That was not defendant’s testimony. Instead, he testified that, if he helped someone else commit a robbery, he would expect to receive part of the proceeds — even if he did not hold the gun. A prosecutor may not argue facts not mentioned in evidence. People v Partee, 410 Mich 871 (1980); People v Knolton, 86 Mich App 424; 272 NW2d 669 (1978), lv den 406 Mich 885 (1979). However, defendant failed to object to any of these instances of prosecutorial misconduct. An objection is required to preserve this issue for appeal. People v Cleveland, 295 Mich 139; 294 NW 124 (1940); People v Lasenby, 107 Mich App 462; 309 NW2d 572 (1981); People v Hogan, 105 Mich App 473; 307 NW2d 72 (1981), lv den 413 Mich 937 (1982). This Court will not reverse unless a cautionary instruction could not have cured the prejudice. People v Humphreys, 24 Mich App 411; 180 NW2d 328 (1970). Even if defendant had objected (and the objection was sustained), where defendant has failed to request a mistrial, this Court will not reverse absent manifest injustice. People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969). Although we find the case very close, we decline to reverse. Defendant admitted both in his confession and testimony all the elements necessary for breaking and entering. Furthermore, the only armed robbery element he completely contested was the taking. However, the prosecution presented strong and uncontested evidence that a taking did occur. One of the six robbers was found directly outside the house immediately after the robbery with some of the victim’s property in his pocket. We are less likely to find manifest injustice where the evidence is overwhelming. People v Peck, 147 Mich 84; 110 NW 495 (1907); Peery, supra; People v Eaton, 114 Mich App 330; 319 NW2d 344 (1982), lv den 417 Mich 929 (1983). Because defendant admitted to practically all of the charges, in this case, we do not find reversible error. Motes v United States, 178 US 458; 20 S Ct 993; 44 L Ed 1150 (1900); People v Bolton, 23 Cal 3d 208; 152 Cal Rptr 141; 589 P2d 396 (1979). Defendant last argues that he is entitled to a resentencing because the trial court stated the following just before sentencing him: "Anybody who breaks into my house at 2 or 3 or 4 o’clock in the morning knowing that I am in bed is assaultive when they come in there to take whatever it is I have, whether it is 50 cents or $500.” Defendant argues that this statement showed bias. However, it was preceded by: "I have read the presentence report and as I understand it, Mr. Wise and his family keeps telling in the probation department that he is not an assaultive per- It was followed by: "And especially when you break in with five other individuals as Mr. Wise says, obviously he intended to take whatever by force because you knew I was there. In this instance the testimony was that guns were held to the head of these persons, their house was ransacked and other physical damage was done to them.” Rather than expressing bias, the trial court merely articulated a proper reason for the sentence it gave. See People v Coles, 417 Mich 523; 339 NW2d 440 (1983). Affirmed. An eighth count, felony-firearm, MCL 750.227b; MSA 28.424(2), was dismissed during trial on the prosecution’s motion. Three justices would have granted leave to appeal. Citing the Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), test, the prosecution argues that defendant’s double jeopardy rights have not been violated. Although convicting a defendant of both armed robbery and breaking and entering with intent to commit larceny is not double jeopardy under Blockburger, Michigan’s analysis on this issue does not end with Blockburger. Even if the Blockburger test is satisfied, Michigan courts must then determine whether or not factual double jeopardy has arisen. People v Wakeford, 418 Mich 95; 341 NW2d 68 (1983); People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980). People v Stevens, 130 Mich App 1; 343 NW2d 219 (1983), avoided the double jeopardy issue by finding sufficient evidence of the intent to commit the larceny independent of the completed larceny itself. Wakeford specifically noted that some of the evidence may perform "double duty”. 418 Mich 110. In fact, for example, there is no double jeopardy where the defendant is convicted of armed robbery and first-degree criminal sexual conduct (armed with a weapon) even though the same weapon is used to prove both offenses. People v Beam, 125 Mich App 289; 335 NW2d 684 (1983). In both Stewart (On Rehearing), supra, and Martin, supra, the Supreme Court found double jeopardy where the facts relied on to show that the defendants had sold heroin were necessarily the same facts relied on to show that they also possessed heroin. Possession of heroin is clearly a lesser included offense of the sale of heroin. Martin, 398 Mich 307. Yet, in Wakeford, supra, the Supreme Court stated: "The Legislature may choose to impose multiple punishment for possession and sale by appropriately amending the statutes”. 418 Mich 110, fn 13. This distortion can be found in Michigan law. If a person, while walking along a public sidewalk, steals a pie on a window ledge but his hand does not enter the building, he is guilty of larceny under $100, a 90-day misdemeanor, MCL 750.356; MSA 28.588. However, if in stealing the pie he reaches into the building and pushes the window open an extra inch, he is guilty of breaking and entering, a 15-year felony. MCL 750.110; MSA 28.305. See White, supra. A different situation occurs, however, if the defendant is charged with both breaking and entering with intent to commit criminal sexual conduct and first-degree criminal sexual conduct in the perpetration of a breaking and entering. There, the Legislature has intended only one prosecution: the evidence needed for the criminal sexual conduct charge necessarily requires proof of the underlying lesser included felony. People v Peete, 102 Mich App 34; 301 NW2d 53 (1980), lv den 411 Mich 962 (1981); People v Swearington, 84 Mich App 372; 269 NW2d 467 (1978). See also People v Wilder, 411 Mich 328; 308 NW2d 112 (1981). E.g., Morgan v Devine, 237 US 632; 35 S Ct 712; 59 L Ed 1153 (1915); Mead v State, 489 P2d 738 (Alas, 1971); State v Hutton, 87 Ariz 176; 349 P2d 187 (1960); Whitted v State, 187 Ark 285; 59 SW2d 597 (1933); Wilson v State, 24 Conn 57 (1855); Estevez v State, 313 So 2d 692 (Fla, 1975); State v McCormick, 100 Idaho 111; 594 P2d 149 (1979); People v Andrae, 305 Ill 530; 137 NE 496 (1922); Elmore v State, 269 Ind 532; 382 NE2d 893 (1978); State v Turney, 77 Iowa 269; 42 NW 190 (1889); Easley v Commonwealth, 320 SW2d 778 (Ky, 1958); State v O’Banion, 171 La 323; 131 So 34 (1930); Williams v State, 205 Md 470; 109 A2d 89 (1954); State v Cline, 477 SW2d 91 (Mo, 1972); State v Hadley, 205 Neb 412; 288 NW2d 37 (1980); State v Byra, 128 NJL 429; 26 A2d 702 (1942), aff'd 129 NJL 384; 30 A2d 49 (1943), cert den 324 US 884; 65 S Ct 1025; 89 L Ed 1434 (1945); State v McAfee, 78 NM 108; 428 P2d 647 (1967); People v Baker, 27 App Div 2d 269; 278 NYS2d 309 (1967), aff'd 19 NY2d 982; 281 NYS2d 527; 228 NE2d 695 (1967); State v Revelle, 301 NC 153; 270 SE2d 476 (1980); Miles v Maxwell, 1 Ohio St 2d 85; 204 NE2d 232 (1965); Commonwealth ex rel Moszczynski v Ashe, 343 Pa 102; 21 A2d 920 (1941); Copeland v Manning, 234 SC 510; 109 SE2d 361 (1959); State v Davis, 613 SW2d 218 (Tenn, 1981); Johnson v State, 126 Tex Cr Rpts 466; 72 SW2d 288 (1934); State v Jones, 13 Utah 2d 35; 368 P2d 262 (1962); State v Beaman, 143 Wash 281; 255 P 91 (1926). Contra, Wildman v State, 42 Ala App 357; 165 So 2d 396 (1963), cert den 276 Ala 708; 165 So 2d 403 (1964) (relying on an Alabama statute requiring merger); People v McFarland, 58 Cal 2d 748; 26 Cal Rptr 473; 376 P2d 449 (1962); State v Cloutier, 286 Or 579; 596 P2d 1278 (1979). In Maynes v State, 169 Colo 186; 454 P2d 797 (1969), the court held that the defendant could be convicted of both but that the sentences must run concurrently. Along a similar vein, the court in Robinson v Commonwealth, 190 Va 134; 56 SE2d 367 (1949), held that the defendant could be given only one sentence though he could still be convicted of both crimes. Defendant alleged three other instances of prosecutorial misconduct during closing arguments. When read in their context, allowing statements calling defendant "cagey”, "a coward”, and "pretty greedy” was not error requiring reversal absent an objection. The other two instances were nonobjectionable. The prosecutor neither distorted the law on aiding and abetting nor appealed to the jury to support the police by convicting defendant.
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Taylor, J. These appeals involve a December 22, 1992, decision of the Michigan Public Service Commission determining, among other things, that at least 189 of 445 local telecommunications services are regulated under the Michigan Telecommunications Act (Act 179), 1991 PA 179, MCL 484.2101 et seq.; MSA 22.1469(101) et seq., effective January 1, 1992. This act marked a dramatic change in the regulation of telecommunications services in Michigan. It replaced the telephone act, 1913 PA 206, MCL 484.101 et seq.; MSA 22.1441 et seq. MCL 484.2603; MSA 22.1469(603). In this proceeding, the psc determined whether several hundred telecommunications services were or were not regulated under Act 179. Appellants are providers of various types of telecommunications services that the psc found to be regulated. Act 179 is deregulatory in nature. This is evi denced by the fact that the psc has determined that only 189 out of 445 previously regulated local services continued to be regulated under Act 179. Act 179 is divided into six articles. Article 1 is largely a definitional section. Article 2 relates to the psc’s authority to administer the act. The psc is given "jurisdiction and authority to administer” the act, but that authority is expressly "limited to the powers and duties prescribed” by the act. MCL 484.2201; MSA 22.1469(201). Specific authority for this Court to review orders of the psc under the act is provided in § 203(5). The act incorporates the provisions of MCL 462.26; MSA 22.45 for judicial review of psc decisions. Article 3 governs regulation of six specific telecommunication services (A-F). The appeals before us particularly concern the first three of these services: basic local exchange service, §§ 301-309a; access service, §§310-311; and toll service, §312. The act permits providers of these services to set the initial rates to be charged when the act goes into effect, but those rates cannot exceed the rate that existed for the same service when the act took effect. Sections 304(2), 310(2), and 312(2). For access service and toll service, the act expressly prohibits the psc from reviewing or setting rates except as prescribed in specific sections of the act. Sections 310(1) and 312(1). Article 4 of the act is the deregulatory core of the legislation. Regulation of any telecommunications service not specifically provided for in the act is prohibited. Section 401(2). Article 5 gives the psc some control over harmful content and article 6 provides for penalties. Act 179 replaced a regulatory scheme that had developed over many decades. While Act 179 is indicative of an effort to deregulate the telecommunications industry in Michigan, the act clearly did not eliminate all regulation of telecommunications services. The transition from the old regulatory scheme to the new one is reflected in the provisions continuing rates in effect on December 31, 1991, and precluding rates greater than those in effect on that date. Sections 304(2), 310(2), 310(3), and 312(2). Acting pursuant to § 202(c), the psc initiated the instant case by issuing an "Order and Notice of Opportunity to Comment” on February 12, 1992. Section 202(c) provides authority for the psc to require telecommunications providers to file a schedule of their rates. Section 202(c) states: Require by order that a provider of a regulated service, including access, make available for public inspection and file with the commission a schedule of the provider’s rates, services and conditions of service, including access provided by contract. [MCL 484.2202(c); MSA 22.1469(202)(c).] The February 12 order discussed proposed filing procedures and formats, as well as the scope of the services that the psc could regulate. Many interested parties who responded questioned the psc’s authority under Act 179 to determine which services were regulated as opposed to merely performing the ministerial act of defining the content and physical format of rate schedules or tariffs. On May 21, 1992, the psc entered an order requiring its staff to compile a list of regulated telecommunications services. This task was to be done with the aid of interested industry representatives. The staffs report was filed on July 2, 1992. Attached to the report were three lengthy tables identifying hundreds of services as being either regulated or unregulated in the staffs opinion. Comments on this report were filed by interested parties. On December 22, 1992, the psc issued an opinion and order requiring providers of regulated telecommunications services to file tariffs. The regulated services were identified in tables similar to the ones attached to the staffs July 2, 1992, report. The psc did not accept all of its staffs recommendations. The psc did not attempt to discuss every service listed in the tables, although it did discuss several specific services in the course of its opinion. The effect of the December 22 opinion and order was to identify telecommunications services that the psc deemed regulated under Act 179 and to leave service providers at their peril if they did not comply with regulatory requirements pertaining to those services. The appeals at bar challenge the psc’s reasoning with respect to which types of services constitute basic local exchange services, access services, and toll services, as well as which services constitute "new” telecommunications services under MCL 484.2206; MSA 22.1469(206). Appellants have the burden of showing by clear and convincing evidence that the psc’s order is unlawful or unreasonable. MCL 484.2203(5); MSA 22.1469(203)(5); MCL 462:26(8); MSA 22.45(8). Generally, this Court gives considerable deference to the psc’s administrative expertise and will not substitute its judgment for that of the psc. In re Quality of Service Standards for Regulated Telecommunication Services, 204 Mich App 607, 611-612; 516 NW2d 142 (1994); CMS Energy Corp v Attorney General, 190 Mich App 220, 228; 475 NW2d 451 (1991). Such deference, however, is given mostly to longstanding administrative interpretations by the psc. 204 Mich App 612. Here we are dealing with one of the psc’s initial interpretations of new legislation. While we cannot ignore the psc’s interpretation of Act 179, and it is still entitled to some deference by virtue of the psc’s institutional position, that interpretation is not entitled to the same measure of deference that we would give to a longstanding administrative interpretation. The psc’s authority must be plainly granted by the Legislature. The psc is a creature of the Legislature, and the entirety of the psc’s authority must be found in statutory enactments. Union Carbide Corp v Public Service Comm, 431 Mich 135, 146; 428 NW2d 322 (1988); CMS Energy Corp, supra at 228. A statute that grants power to an administrative agency must be strictly construed and the administrative authority drawn from such statute must be granted plainly, because doubtful power does not exist. Mason Co Civic Research Council v Mason Co, 343 Mich 313, 326-327; 72 NW2d 292 (1955); Taylor v Public Utilities Comm, 217 Mich 400, 402-403; 186 NW 485 (1922); In re Quality of Service Standards, supra at 611. i Before reaching the arguments about the psc’s interpretation of the act, we first address the argument that the psc was without authority to enter an order determining what telecommunications services are and are not regulated. The position of several appellants is that the psc was only granted the authority to determine the procedure and format for filing tariffs, something that effectively can be done without identifying every regulated service. The psc addressed this argument in its December 22, 1992, decision by finding it "appropriate” to resolve the question of which services are regulated at that time, noting that providers were free not to file tariffs on unregulated services and that the psc’s findings would merely serve as a "guide” for determining which services required tariff filings under Act 179. For authority, the psc relies upon § 202(c), its general grant of authority to administer the act in § 201(1), and a need to identify regulated services in order to carry out its statutory obligations under various other sections such as § 208 (authority to deregulate a service) and § 304 (authority to approve alterations in local exchange rates). We conclude that the Legislature clearly authorized the psc to require providers of regulated services to file tariffs, § 202(c), and that, in order to do so, it was necessary for the psc to identify which services are regulated under Act 179. The psc has the inherent power necessary to carry out its express duties. In re Quality of Service Standards, supra at 613. Section 202 of the act requires the psc to do several things without a hearing. In § 202(c) the Legislature directed the psc to require "by order” that providers of regulated telecommunications services file a schedule of their rates with the psc. Such filings are understandably necessary in light of the transition to a new regulatory scheme under which some previously regulated services continue to be regulated and some do not. Requiring providers of regulated services to file tariffs merely on the basis of an order, rather than a contested case to determine whether the services are regulated, is reasonable in light of the transitional nature of the filing requirement provided in § 202(c). Nothing that previously was unregulated can become regulated under § 202(c). In fact, fewer than half of the previously regulated services were found by the psc to still be regulated under Act 179. Appellants argue that the psc’s determination of which services are regulated essentially constituted rule making and required at least a hearing that would allow for presentation of evidence and a reviewable determination for each service considered. In light of the hundreds of services involved, and the cost and time required for such a formal undertaking, we cannot attribute such an intent to the Legislature. This is particularly so in light of the fact that Act 179 contains a sunset provision repealing the act on January 1, 1996. MCL 484.2604; MSA 22.1469(604). The process suggested by appellants could not be completed before the act expires and would, in the interim, leave undetermined the regulation of virtually every telecommunications service. In construing a statute, absurd or unreasonable results are to be avoided wherever possible. Dep’t of Civil Rights v Beznos Corp, 421 Mich 110, 120; 365 NW2d 82 (1984); Dafter Sanitary Landfill v Superior Sanitation Service, Inc, 198 Mich App 499, 502; 499 NW2d 383 (1993). Moreover, appellants’ contention that, the psc had to conduct a hearing is contrary to the mandate of § 202(c) that the psc act "by order.” Appellants also contend that the psc was merely authorized to prescribe the procedure and format for tariff filings. But on its face, § 202(c) is not so limited. Section 202(c) directs the psc to order providers to "make available . . . and file” rate schedules. In contrast, the subsection immediately preceding expressly provides that the psc, by order, shall establish the "manner and form” in which telecommunications providers keep books of accounts, records, and other matters. Section 202(b). If the Legislature had intended § 202(c) to be limited as suggested by appellants, the Legislature could have drafted that section with language similar to that in § 202(b). ii One of the areas in which regulation was retained is in the area of "basic local exchange service,” as provided in §§ 301-309a of the act. In determining which specific services should be considered part of basic local exchange service, the psc found that the intent of the Legislature was to regulate "only those local services that are primarily provided only by the lecs [local exchange companies] and that are essential to the public health, safety, or general welfare of most customers.” The psc further found that the definition of basic local exchange service "must be an evolving one” because of changing telecommunications technology. The psc found that the Legislature intended that basic service not be limited merely to providing "a dial tone.” The psc’s view of basic local exchange service was influenced by its understanding that the Legislature intended Act 179 to be a mechanism "to encourage the development of a modern, high-quality telecommunications infrastructure and to ensure that essential telecommunication services remain available and affordable to Michigan’s residences, business, and schools.” This definition of "basic local exchange service” adopted by the psc is far too expansive and is inconsistent with the language of Act 179. The Legislature expressly indicated that certain services must be provided, such as local directory assistance service, § 207; service for the hearing impaired, § 315; and lifeline service, § 316. Thus, for three specific services, the Legislature authorized the psc to determine whether those services "are essential to the public health, safety, or general welfare and should be regulated” under Act 179. Section 207a. The Legislature precluded regulation of any telecommunications service not specifically provided for in the act. Section 401(2). The expansive definition of "basic local exchange service” adopted by the psc makes the Legislature’s delineation of regulated services largely meaningless. The psc has left itself with the power to include as regulated basic local exchange service any service provided by a local exchange company that the psc deems essential to the "public health, safety or general welfare.” If this were the standard, there would have been no need for the Legislature in § 207a to authorize the psc to determine whether certain specific services should be regulated. Indeed, in § 207a the Legislature expressly authorized the psc to make its determination on the basis of "public health, safety or general welfare.” This standard is conspicuously absent in the definition of "basic local exchange service” provided by the Legislature. The Legislature defined "basic local exchange service” in § 102(b) as the provision of an access line and usage within a local calling area for the transmission of high-quality 2-way interactive switched voice or data communication. [MCL 484.2102(b); MSA 22.1469(102)(b).] This is the definition pursuant to which the psc has been authorized to regulate. While there may be some leeway for interpretation, it is evident in light of this language and language specifically granting authority to regulate in some instances and expressly denying authority to regulate in all other instances, that basic local exchange service must be basic. A minimal view of "basic local exchange service” is also consistent with § 316(1), which requires a subsidized rate for "residential basic local exchange service” for certain low-income customers. We do not attribute to the Legis lature an intent to subsidize as "basic” service an expansive or highly sophisticated bundle of services. We do not decide whether "basic local exchange service” comprises merely an access line and dial tone. Given the record before us, we are not in a position to determine the precise limits of "basic local exchange service.” Indeed, this determination is particularly suitable to the administrative judgment of the psc. However, the determination reached by the psc on December 22, 1992, is inconsistent with the express language of Act 179. hi Section 312 of Act 179 gives the psc some regulatory authority over toll service. The psc determined that toll service constituted "any switched communication between local calling areas that is not provided over a dedicated access line and is not access. . . .” At least for purposes of this appeal, this definition is not meaningfully different than the definition of "toll service” provided in § 102(u) of the act: "Toll service” means the transmission of 2-way interactive switched communication between local calling areas. Toll services does not include individually negotiated contracts for similar telecommunication services or wide area telecommunications service. [MCL 484.2102(u); MSA 22.1469(102) (u).] Toll service is essentially long-distance service, which is service between local calling areas. But, importantly, the statutory definition excludes, among other things, "wide area telecommunications service,” which service is "2-way interactive switched communication over a dedicated access line.” MCL 484.2102(v); MSA 22.1469(102)(v). We find no merit in the argument on appeal that the psc defined "toll service” too broadly because toll service should be construed to mean only "basic” long-distance service. This argument posits that the Legislature must have intended to regulate only basic service that is available from a sole provider or that is used by small customers without bargaining power. It is pointed out that under the psc’s definition, regulated "toll service” can include optional and large-scale services available from many providers. We find no support in Act 179 for limiting the regulation of "toll service” to only "basic” toll service. The statutory definition of toll service makes no distinction for "basic” service. It is evident that the Legislature understood the concept of "basic” service because it expressly provided for regulation of "basic local exchange service.” Without a clear textual basis for doing so, we will not give the statute such a construction. Allstate Ins Co v Dep’t of Ins, 195 Mich App 538, 546; 491 NW2d 616 (1992). To the extent any appellant or any provider believes its regulated toll service should not be regulated, an application may be made to the psc to deregulate that service. MCL 484.2208; MSA 22.1469(208). However, in one significant respect, the psc did err in its determination of what constitutes "toll service.” In considering the second sentence of § 102(u), the psc concluded that individually negotiated contracts for "similar” telecommunications services, which are not included within the definition of "toll service,” could not include regular toll service and were limited to "unique services or circumstances not otherwise available in other areas of the company’s tariffs.” This determination was based on a concern that excluding individually negotiated contracts for regular toll service would undermine the price caps, geographic averaging requirements, and imputed access charge obligations set forth in §§ 311 and 312 of the act. A straightforward reading of the definition of "toll service” in § 102(u), however, indicates that the psc misconstrued the scope of what negotiated contracts are- excluded from toll service. The definition of toll service makes no reference to the price caps, geographic averaging requirements or imputed access charge obligations established in §§ 311 and 312. While those sections suggest the Legislature’s concern about the availability of service and the cross-subsidization of unregulated services, plainly the Legislature did not refer to those concerns in its definition of "toll service” and expressly removed from such definition all similar services that are provided pursuant to individually negotiated contracts. Under the psc’s construction, few, if any, individually negotiated contracts for toll service or similar service would avoid regulation, a result inconsistent with the deregulatory thrust of Act 179 and with its express language. Indeed, the fallacy of the psc’s reasoning is indicated in its conclusion that only individual contracts for "unique” services or otherwise unavailable services would avoid regulation. This result is far removed from the Legislature’s exclusion of "similar” telecommunications services. It is argued that the psc was correct because the Legislature’s reference to "similar” telecommunications services excludes "regular” toll service as defined in the first sentence of § 102(u). This interpretation of the word "similar” is erroneous because it is strained and does not result in a reasonable construction in light of the deregulatory na ture of the act. Lorencz v Ford Motor Co, 439 Mich 370, 376-377; 483 NW2d 844 (1992). A plain reading of the definition of "toll service” suggests that, when the Legislature excluded individually negotiated contracts for "similar” services, the Legislature was excluding services having a general likeness to regular toll service, as well as regular or ordinary toll service. The word "similar” can mean something that resembles something else in many respects but is not identical, but it can also mean something that is exactly alike or identical. See Black’s Law Dictionary (rev 4th ed). Dictionary definitions of a word can provide guidance in interpreting a word not defined in a statute. Gordon v Allstate Ins Co, 197 Mich App 609, 616; 496 NW2d 357 (1992). In White v Ann Arbor, 406 Mich 554, 572; 281 NW2d 283 (1979), the Court recognized (although it did not find on the facts before it) that "similar” may mean identical or exactly alike. The psc’s understanding would be incongruous. Under its approach, the psc could regulate those services that are most within the deregulatory contemplation of the Legislature, while enabling the deregulation of services that, if anything, are less certainly within the contemplated scope of deregulation. In this case, defining "similar” services in the second sentence of § 102(u) to exclude ordinary or regular toll services is inconsistent with the express intent to remove individually negotiated contracts for certain services from regulation. Excluding regular or ordinary toll service from "similar” services would eliminate much of the purpose served by the second sentence of § 102(u). Finally, we note that the psc’s concern about the effect on rates for customers who do not have the benefit of an individually negotiated contract is allayed by the psc’s authority to ensure that basic local exchange rates are "just and reasonable.” MCL 484.2304(4); MSA 22.1469(304)(4). IV The psc determined that the Legislature intended the continued regulation of "access services provided to all providers and customers.” The psc found it necessary to define "access services” because that specific phrase is not defined in Act 179. While recognizing that a telecommunications service is not "access service” unless it offers a connection to a local exchange network for the purpose of originating or terminating telecommunications service within the exchange, the psc defined "access services” as "services and facilities provided to enable all providers and customers to originate or terminate any intrastate telecommunication.” We conclude that the psc has again adopted an overly broad definition. Act 179 provides a definition for "access” in § 102(a): "Access” means the provision of access to a local exchange network for the purpose of enabling a provider to originate or terminate telecommunications service within the exchange. [MCL 484.2102(a); MSA 22.1469(102)(a).] This definition plainly provides that, in order for a telecommunications service to be "access,” the service must (1) provide a connection to a local exchange network, (2) provide such a connection to enable the origination or termination of a telecommunications service within the local exchange network, and (3) provide the access service to a "provider.” "Provider” is defined in § 102(s) as "a person who for compensation provides telecommunica tion services” or unregulated services described in § 401 of the act. The Legislature used "access” and "access services” interchangeably in Act 179, and consequently there was no need for the psc to establish a special definition for "access service.” The definition of "access” in § 102(a) is drafted in terms of "the provision” of access. The manner in which "access” is provided is through some type of service. Article 3, part B of the act is entitled "access service.” Section 310(8) is drafted in terms of a provider of "access” being required to offer "such services. . . .” The psc’s definition of "access service” is erroneous to the extent that it departs from the definition of "access” provided by the Legislature. The psc’s definition erroneously encompasses "customers,” as well as "providers,” because § 102(a) defines access as a service provided to "a provider” and does not mention "customers.” This is a meaningful distinction because "provider” is a word that has a specific meaning in the act. Section 102(s). Moreover, in defining "special access” in § 102(r), a definition that parallels the definition of "access” in all but one respect, the Legislature again referred to a service for "a provider” and did not mention "customers.” In arriving at its definition of "access service,” the psc was influenced by language in § 310(8) that requires a provider of access services to offer such services on a nondiscriminatory basis to "all providers and customers.” Section 310(8) contains a similar requirement for special access services, mandating that they be offered to "all providers and customers.” The psc reasoned that any definition of access service must take into account "customers” as well as "providers.” The apparent purpose of § 310(8), however, is to prohibit unreasonable discrimination in providing access services. For purposes of these appeals, we need not determine what circumstances the Legislature contemplated in requiring that providers and customers be treated equally in purchasing access services. It is clear that § 310(8) is not a definitional section. The Legislature expressly defined "access” in § 102(a); An element of that definition is that "access services” be established to enable a provider to originate or terminate telecommunication service within a local exchange network. The psc erred in departing from the statutory definition. This conclusion is further supported by the Conference Committee Report on SB 124, which analyzed the bill that became 1991 PA 179. The report refers to "access service” as service provided "to long distance companies and other providers.” In arriving at its definition of "access service,” the psc also erroneously construed § 310(3) of the act. Section 310(3) provides that the rates for "access services” set by a provider thereof shall not exceed the rates "allowed for the same interstate services by the federal government . . . .” The psc reasoned that this language demonstrated a legislative intent that the psc regulate any intrastate "access service” for which there was an equivalent interstate service regulated by federal authorities. The psc read too much into § 310(3). The provision is merely a cap on rates, carefully applied to the "same” interstate services. There is no indication in §310(3) that the Legislature intended that all regulated interstate services would also be regulated intrastate. We also find nothing in Act 179 to support the psc’s conclusion that the "transmission component” of certain otherwise unregulated services remains regulated because the transmission com ponent constitutes "access service.” The psc found that even though video and financial services networks were expressly listed in § 401(1) as unregulated services, the Legislature intended only to deregulate the "content” of the services, leaving the "transmission component” of the services regulated. Again we can find no support for the distinction drawn by the psc. The act does not divide services into transmission and content components. Section 401(1) is a clear statement that the psc has no authority over the services specifically listed in that section. When a statute’s meaning is clear, construction of that statute is neither necessary nor permitted. Montgomery Ward & Co, Inc v Dep’t of Treasury, 191 Mich App 674, 679; 478 NW2d 745 (1991). Indeed, the psc’s conclusion is the direct opposite of that intended by the Legislature because the Legislature, in § 501 of the act, preserved some authority to control harmful "content” in any telecommunications service. Closely related to the psc’s determination regarding access service is its determination regarding "special access.” "Special access” is defined in § 102(r): "Special access” means the provision of access, other than switched access, to a local exchange network for the purpose of enabling a provider to originate or terminate telecommunication service within the exchange, including the use of local private lines. [MCL 484.2102(r); MSA 22.1469(202) (r). Emphasis added.] On the basis of the reference to "local private lines” in the final clause of § 102(r), the psc determined that all local private lines come within the definition of special access and are subject to regulation. A straightforward reading of § 102(r) shows that the Legislature added the clause about local private lines only to make it clear that such lines could constitute "special access.” The rest of the definition of "special access” must still be satisfied, and that definition requires the provision of non-switched access to a local exchange network. To the extent private lines do not provide such access, they cannot be regulated as "special access.” v The regulation of "new services” was briefly discussed by the psc. The psc concluded that the Legislature did not necessarily intend that any service would be unregulated just because it was introduced after January 1, 1992, and that variations in regulated services do not necessarily remove those services from regulation. In Docket No. 163594, Michigan Bell Telephone Company argues that the psc erroneously concluded that new variations of existing regulated services are automatically subject to regulation under Act 179. Section 206(1) authorizes the psc to regulate a "new telecommunication service” that is adverse to the public welfare or to the quality of basic local exchange service. Section 206(2) defines "new telecommunication service” as "a telecommunication service that is not available as of January 1, 1992.” The psc’s December 22, 1992, order that is before this Court pertains specifically to services that existed when Act 179 took effect. The psc’s discussion of new services was essentially a response to points raised by the parties in the proceeding before the psc. We have not been shown that the psc’s views regarding new services expressed in its December 22, 1992, opinion had a direct effect on the telecommunications services the psc determined were regulated. We view the arguments raised in this Court regarding "new services” to be hypothetical or speculative and decline to consider them. Blue Cross & Blue Shield of Michigan v Governor, 422 Mich 1, 78; 367 NW2d 1 (1985); Shavers v Attorney General, 402 Mich 554, 588-589; 267 NW2d 72 (1978). VI We conclude that the reasoning of the psc, in significant respects, is inconsistent with the language of Act 179. In some respects, it is contrary to the express language of that statute, while in others it is contrary to the language of the statute when viewed as a logical whole. Such statutory language is the most authoritative evidence of the intentions of the drafters of the legislation. Although therefore it is unnecessary to parse the act in order to adduce these intentions, we are reinforced in our interpretations of Act 179 by its acknowledged overall deregulatory purpose. This purpose is better effected in each instance of controversy by the interpretation accorded by this Court’s textual analysis than by the interpretations of the psc itself. With the exception of the filing procedures set forth by the psc in Attachment A to their decision, the psc’s order of December 22, 1992, is vacated. This matter is remanded to the psc for further consideration in light of this opinion.
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Mackenzie, J. This zoning case concerns plaintiff’s construction of a sanitary refuse landfill on property located within defendant township. The site in question is zoned as an agricultural district. Plaintiffs first request of defendant for permission to establish the landfill was denied, and plaintiff filed suit in circuit court seeking injunctive relief. While that suit was pending, defendant amended its zoning ordinance and plaintiff sought permission to establish the landfill under the ordinance as amended, but was again unsuccessful. Plaintiff then amended its complaint to incorporate a challenge to this second refusal by defendant to permit the landfill. The circuit court found the zoning ordinance unconstitutional and invalid, and entered a judgment restraining defendant from any further interference with or regulation of plaintiffs construction of the landfill. Defendant made a post-trial motion for a new trial and for a temporary injunction restraining plaintiff from constructing the landfill until the township planning commission adopted a new ordinance to take the place of that invalidated. The circuit court denied defendant’s motions, and defendant appeals as of right. While this Court reviews equity cases de novo, we give considerable weight to the fact-findings of the trial judge. Kropf v Sterling Heights, 391 Mich 139, 152, 163; 215 NW2d 179 (1974). A zoning ordinance which totally excludes from the municipality a legitimate use of property is valid only if the total exclusion has a reasonable relationship to the health, safety, or general welfare of the community. Bzovi v Livonia, 350 Mich 489, 492; 87 NW2d 110 (1957); Roman Catholic Archbishop of Detroit v Village of Orchard Lake, 333 Mich 389, 392; 53 NW2d 308 (1952). The circuit court concluded that § 4.20 of defendant’s zoning ordinance, as it existed prior to and after amendment, totally excluded landfills from the township, and that this exclusion bore no reasonable relationship to the health, safety, or general welfare of the community. We agree. Our review of the zoning ordinance prior to amendment reveals that under neither § 4.20 nor any other provision would a sanitary landfill be permitted by defendant, and indeed defendant appears not to have seriously contended otherwise before the circuit court. The amendment to § 4.20 added new provisions permitting landfills in industrial-zoned districts if they complied with various restrictions, one being that the landfill be located more than 1,000 feet from any highways. However, the amended ordinance in effect also totally excluded landfills because no existing industrial-zoned land could meet the 1,000-foot requirement, and there was testimony indicating that any request to rezone property from agricultural to industrial would be denied, as was plaintiff’s request. In addition, there was testimony that defendant intended to prevent the establishment of any landfills in the township. The record supports the circuit court’s conclusion that there was no evidence showing that this total exclusion of landfills from the township was reasonably related to protection of the health, safety, or general welfare of the community. Defendant, however, asserts on appeal that the circuit court erred in placing the burden of proof on defendant rather than on plaintiff. Our Supreme Court has held that a zoning ordinance is presumed to be valid and that the party challenging the ordinance bears the burden of proving that it is unreasonable. Kirk v Tyrone Twp, 398 Mich 429, 439; 247 NW2d 848 (1976); Kropf, supra. However, there is also a line of authority suggesting that this presumption of validity does not apply where, on its face, an ordinance totally excludes a legitimate use from the municipality. Kropf, supra, pp 155-156; Roman Catholic Archbishop of Detroit, supra, pp 393-394. We need not determine whether the presumption of validity and placement of the burden on the challenging party should or should not apply in the present case since defendant’s assertion that the burden was shifted to it is not supported by the record. The court’s opinion, rendered orally from the bench, was unclear as to whom the court placed the burden of proof upon, and, in its later ruling denying defendant’s motion for a new trial, the court clarified that it had imposed on plaintiff the burden to prove that the total exclusion bore no reasonable relationship to health, safety, or general welfare. Our finding that the total exclusion of landfills was unreasonable does not end the inquiry. In addition to such a showing, plaintiff was also required to prove that exclusion of a landfill from its particular parcel of property was not reasonably related to the health, safety, or general welfare of the community. Bzovi, supra; Dettore v Brighton Twp, 91 Mich App 526, 535; 284 NW2d 148 (1979), vacated on other grounds 408 Mich 957; 294 NW2d 692 (1980). In other words, plaintiff had to show that the zoning ordinance was invalid as applied to it. While the circuit court’s opinion contains no express statement recognizing this second step of the inquiry, still plaintiff and defendant presented evidence pertaining to this issue and the court’s opinion reflects that the court considered this evidence. There was uncontroverted evidence that plaintiff’s proposed site was geologically suitable for a landfill, and defendant introduced no evidence indicating that a landfill on the site would pose health or safety risks, or interfere in any way with the existing agricultural use of nearby property. Defendant instead argued that exclusion of a landfill from plaintiff’s site was reasonable because the proposed landfill would interfere with an orderly development of urban expansion, would harm the appearance of the township, and because the site was especially suitable for agricultural use. As to the evidence showing that the site was suitable for agricultural use, this has no relevance regarding whether the site was suitable for a landfill. With respect to the urban development justification, our Supreme Court has emphasized that, in determining whehter an ordinance is valid, the focus must be on presently existing conditions. Biske v Troy, 381 Mich 611, 617-618; 166 NW2d 453 (1969); Gust v Canton Twp, 342 Mich 436, 440-442; 70 NW2d 772 (1955). Thus, while future development may be a valid justification for exclusion where it is imminent or a factual certainty, it is not where the future development is merely speculative. Kropf, supra, p 151, quoting with approval from Kropf v Sterling Heights, 41 Mich App 21, 26; 199 NW2d 567 (1972). In the present case, there was no evidence of presently existing plans of defendant for urban development in the area of plaintiff’s property, or evidence of existing facts warranting an expectation of imminent or certain urban development in that area. Contrast Bzovi, supra, p 496. We agree with the circuit court’s conclusion that the testimony regarding future urban development in the vicinity of plaintiff’s site was speculative and unconvincing. Finally, we are left with defendant’s aesthetic objection to plaintiff’s landfill. Aesthetics is a valid part of the general welfare concept; however, it may not serve as the sole reason for excluding a ligitimate use of property. Wolverine Sign Works v Bloomfield Hills, 279 Mich 205; 271 NW 823 (1937); Sun Oil Co v Madison Heights, 41 Mich App 47, 53; 199 NW2d 525 (1972). Since defendant’s only remaining justification is one of aesthetics, it alone does not establish as reasonable the exclusion of plaintiff’s proposed landfill. The circuit court properly found that defendant’s aesthetic objection did not save the ordinance from invalidity. In view of the foregoing, we affirm the circuit court’s judgment finding § 4.20 of the zoning ordinance, both prior to and after amendment, unconstitutional and invalid since the total exclusion of landfills from the township and from plaintiff’s property was not reasonably related to the health, safety, or general welfare of the community. We also affirm the circuit court’s determination that defendant failed to show that plaintiff’s proposed landfill will violate the federal Highway Beautification Act of 1965, 79 Stat 1030; 23 USC 136, or § 3 of the state junkyard control act, MCL 252.203; MSA 9.391(13). The berm proposed by plaintiff to shield the landfill from the view of persons using the adjacent highways is not an impermissible means of screening under the above statutes, and defendant did not show that the proposed berm would not effectively screen the landfill in compliance with the statutes. The final issue for our consideration is whether, upon finding § 4.20 of defendant’s zoning ordinance to be invalid, the circuit court erred in refusing defendant’s request to remand to the township planning commission for the purpose of formulating a new ordinance, pursuant to the procedure set forth in Ed Zaagman, Inc v Kentwood, 406 Mich 137, 179-183; 277 NW2d 475 (1979), and to temporarily enjoin construction by plaintiff in the meantime. The circuit court determined that the Zaagman remand procedure was not applicable to cases, like the present one, where an ordinance is invalidated because it totally excludes a particular use of property. In some cases, the absence of a remand to the zoning authority will mean that the property owner can institute the desired land use virtually unfettered by any regulation. Thus, we believe a remand might be proper in a total exclusion case where necessary to protect the community’s health, safety, or general welfare by allowing the zoning authority to fill the void created by the court’s invalidation of its ordinance. See Central Advertising Co v St Joseph Twp, 125 Mich App 548; 337 NW2d 15 (1983). However, in the present case involving a sanitary landfill, invalidation of defendant’s ordinance did not leave a significant void of regulation since landfills are subject to state regulation under the Solid Waste Management Act, MCL 299.401 et seq.; MSA 13.29(1) et seq. The act, and Department of Natural Resources regulations promulgated thereunder, pro vide much more thorough state regulation than that involved in Central Advertising Co, supra, thus making that case distiguishable; however, we express no opinion as to whether the act totally preempts local regulation of landfills. We simply hold that in light of the degree of state regulation of landfills, there was no significant void of regulation making a remand necessary, and therefore the court did not err in refusing to remand. Affirmed. No costs, issues of public significance being involved.
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On Remand Before: Cynar, P.J., and Bronson and D. F. Walsh, JJ. Per Curiam. In an order dated March 29, 1983, the Supreme Court vacated this Court’s order affirming defendant’s conviction and remanded for reconsideration in light of People v Gonzales, 415 Mich 615; 329 NW2d 743 (1982). 417 Mich 937 (1983). In Gonzales, the Court held as follows: "The process of hypnosis is not a reliable means of accurately restoring forgotten incidents or repressed memory, and to permit posthypnotic testimony would unfairly denigrate the defendant’s right to cross-examination. Therefore, we hold that until hypnosis gains general acceptance in the fields of medicine and psychiatry as a method by which memories are accurately improved without undue danger of distortion, delusion, or fantasy, and until the barriers which hypnosis raises to effective cross-examination are somehow overcome, the testimony of witnesses which has been tainted by hypnosis must be excluded in criminal cases.” 415 Mich 626-627. The present appeal cannot be distinguished from Gonzales, supra. This is a companion case to Gonzales, which involves not only the same witness, but in fact the very same hypnosis-induced testimony that was found to have improperly contributed to the conviction in Gonzales. Accordingly, upon reconsideration in light of Gonzales, we conclude that the admission of witness Rhonna Burns’s post-hypnotic testimony could not have been harmless beyond a reasonable doubt. Accord, People v Nixon (On Rem), 125 Mich App 807; 337 NW2d 33 (1983). The conviction is reversed and the matter remanded to the lower court for a new trial. Reversed and remanded.
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Marilyn Kelly, J. Defendant, Olde Millpond Corporation, appeals as of right from a circuit court judgment attaching liens in favor of plaintiff, Vugterveen Systems, Inc., and cross-plaintiff, Erb Lumber Company. We affirm but instruct the court to modify the amount of the liens. i Olde Millpond Corporation was the developer of a condominium project. Charles Hornbach, president of Olde Millpond, initiated the project in 1986. In 1988, he contracted with VanderWall Construction, Inc., to act as general contractor. Subsequently, VanderWall subcontracted with Vugterveen to do the drywall work in the project. Vugterveen installed drywall in two of the buildings, each containing two residential units. Erb provided the lumber for the project. Vugterveen worked on the two buildings under separate agreements. The contract price for the first building was $11,600, which Olde Millpond paid in full. Vugterveen signed a waiver of lien for that building. It agreed to drywall the two units in the second building for $9,750 but stopped work for lack of payment before completing them. Vugterveen recorded a construction lien in the amount of $7,800 for the unpaid work it had done. Erb furnished lumber for both buildings pursuant to a builder sales agreement with VanderWall. After requesting a copy of Olde Millpond’s notice of commencement from VanderWall on May 31, 1988, Erb filled out a notice of furnishing lumber. It stated that the material was being furnished to VanderWall for the "construction of 4338/4333 Olde Millpond Drive in connection with the improvement of the real property described by the Notice of Commencement a copy of which is attached.” Erb sent a copy of the notice of furnishing to VanderWall and to Hornbach. The balance due on the account was $20,239.07. Hornbach removed VanderWall from the job on October 27, 1988. On December 30, 1988, Erb filed a claim of lien for $20,239.07 "plus accruing finance charges as of November 30, 1988.” On December 5, 1989, Vugterveen filed a complaint for foreclosure of its construction lien against Olde Millpond. On December 18, 1989, Erb filed a counterclaim and cross-claim also seeking to have its construction lien foreclosed. The case was heard in a three-day bench trial in September 1991. In an oral opinion issued March 9, 1992, the court ruled that Erb was entitled to a lien against both buildings in the amount of $7,300.84 plus interest, costs and attorney fees. Vugterveen was entitled to a lien for the balance due on the work it had completed and for attorney fees. Each sum represents a prorated share of the original construction lien amount, in accord with the trial judge’s decision to adopt the formula for proration set forth in Smalley v Gearing, 121 Mich 190; 79 NW 1114 (1899). Olde Millpond raises ten issues on appeal. Cross-appellant, Erb, raises three. ii Olde Millpond asserts that the trial court erred in denying its motion for summary disposition. When the motion was heard, the judge suggested that, since the trial date was in two weeks and the issues complex, the case would be resolved faster if tried. The parties agreed. Therefore, the judge did not directly deny the motion. It is unnecessary for this Court to review an issue on which no ruling was made. Richmond Twp v Erbes, 195 Mich App 210, 219; 489 NW2d 504 (1992). However, were we to review it, we would find no abuse of discretion. As the judge observed, the issues in the case were complex and the trial was at hand. Trial presented the most efficient method to resolve the issues. hi Olde Millpond asserts that the notices of furnishing by Erb and Vugterveen were improper under the Construction Lien Act. MCL 570.1101 et seq.; MSA 26.316(101) et seq. The interpretation or construction of a statute is a question of law. Smeets v Genesee Co Clerk, 193 Mich App 628, 633; 484 NW2d 770 (1992). We review questions of law de novo. In re Lafayette Towers, 200 Mich App 269, 272; 503 NW2d 740 (1993). The Construction Lien Act requires a supplier to provide a notice of furnishing to the designee named in the notice of commencement within twenty days after furnishing the first material. MCL 570.1109(1); MSA 26.316(109X1). However, failure to provide a notice of furnishing within the time specified does not defeat the lien claimant’s right to a construction lien for work performed or materials furnished by the lien claimant before the service of the notice of furnishing except to the extent that payments were made by or on behalf of the owner or lessee to the contractor pursuant to either a contractor’s sworn statement or a waiver of lien in accordance with this act for work performed or material delivered by the lien claimant. [MCL 570.1109(6); MSA 26.316(109X6).] Vugterveen’s notice of furnishing was late, but Olde Millpond conceded that Vugterveen was not paid. Vugterveen substantially complied with the statute. Its lien claim is not defeated by the untimeliness of its notice of furnishing. IV Olde Millpond also contends that the claims of lien filed by Erb and Vugterveen were unenforceable because excessive in amount. However, it has been established that a lien is not lost because the amount claimed is excessive, unless the claim was made in bad faith. In such instances, the proper remedy is to reduce the amount of the lien to the correct amount. Tempo, Inc v Rapid Electric Sales & Service, Inc, 132 Mich App 93, 104; 347 NW2d 728 (1984). Erb’s error here appears to have been made in good faith. See Currier Lumber Co v Ruoff, 298 Mich 505; 299 NW 163 (1941). The trial court reduced the amount of Erb’s lien, correcting the error. Moreover, Olde Millpond received the intended benefit of a $5,000 payment made to Erb. It was not entitled to credit for another $5,000 payment which Erb misdirected. Finally, Vugterveen’s lien claim was supported by the evidence. v Olde Millpond also asserts that Erb and Vugterveen failed to prove the amount of their lien claims. A lien claimant is required to prove by a preponderance of the evidence the amount claimed to be owing to a reasonable certainty. R & T Sheet Metal, Inc v Hospitality Motor Inns, Inc, 139 Mich App 249, 255; 361 NW2d 785 (1984). The record testimony supports Vugterveen’s claim. Moreover, the trial court determined the correct amount of Erb’s lien. Since the court’s finding on the amount of Erb’s lien was not clearly erroneous, we will not set it aside. Id., p 255. vi Olde Millpond contends that the trial court erred in attaching Erb’s construction lien to all the residential condominium units rather than to the specific units for which materials were furnished. In support of its position, it points to that section of the Construction Lien Act which limits the extent of the lien when a condominium is involved. It states: Except as otherwise provided in this section, a construction lien for an improvement furnished to a condominium unit or to a limited common element shall attach only to the condominium unit to which the improvement was furnished. [MCL 570.1126(l)(a); MSA 26.316(126)(l)(a).] Erb responds by relying on MCL 570.1107(2); MSA 26.316(107)(2), which provides that a construction lien "shall attach to the entire interest of the owner or lessee who contracted for the improvement . . . .” It argues that the clause permits its lien to attach to the entire project. It asserts, also, that it complied with the requirements of MCL 570.1107(1); MSA 26.316(107)(1), which provides: Each contractor, subcontractor, supplier, or laborer who provides an improvement to real property shall have a construction lien upon the interest of the owner or lessee who contracted for the improvement to the real property, as described in the notice of commencement.... The statutory section governing the notice of commencement requires the following language to appear in the notice of commencement: To lien claimants and subsequent purchasers: Take notice that work is about to commence on an improvement to the real property described in this instrument. A person having a construction lien may preserve the lien by providing a notice of furnishing to the above named designee and the general contractor, if any, and by timely recording a claim of lien, in accordance with law. A person having a construction lien arising by virtue of work performed on this improvement should refer to the name of the owner or lessee and the legal description appearing in this notice. . . . [MCL 670.1108(2X0; MSA 26.316(108X2X0.] Erb asserts that it relied on Olde Millpond’s notice of commencement to prepare its notice of furnishing. Olde Millpond identified the entire project in its notice of commencement, under the statutes cited above. Therefore, Erb argues, it should not be penalized for naming the entire project. MCL 570.1302(1); MSA 26.316(302)(1) permits substantial compliance with the provisions of the Construction Lien Act in order for a construction lien to be validly enforceable. See Norcross Co v Turner-Fisher Associates, 165 Mich App 170, 177-178; 418 NW2d 418 (1987). Under the circumstances, we find that Erb substantially complied with the provisions of the Construction Lien Act. Even if our finding were to the contrary, it is undisputed that Erb furnished materials for both units in both buildings. The trial judge correctly decided that Erb’s lien should attach to the four units for which it supplied materials. MCL 570.1126(l)(a); MSA 26.316(126)(l)(a). Vugterveen worked on both units in the second building. It was paid nothing for the work it did in the second building. Vugterveen’s lien properly attached to the entire building. VII Olde Millpond next claims that the trial court erred in setting the amount of Vugterveen’s and Erb’s liens. Defendant asserts that each lien cannot exceed the original contract amount minus payments made, as provided in MCL 570.1107(1); MSA 26.316(107X1), which states: A construction lien acquired pursuant to this act shall not exceed the amount of the lien claimant’s contract less payments made on the contract. We agree with Olde Millpond’s assertion that MCL 570.1107(1); MSA 26.316(107X1) limits the amount of a lien when a contract price has been set. However, defendant cannot prevail on its claims that the liens here were excessive. Testimony regarding Vugterveen’s contract amount was clear and uncontradicted. The court determined that the amount of the lien was the amount owing under the contract. As to Erb, based on testimony at trial, there was no cap on the amount of materials VanderWall could purchase for the Olde Millpond project. Notwithstanding defendant’s assertions to the contrary, the dollar amount identified in the contract was merely an estimate related to the base figure for each unit. It did not include the cost of changes or additional buyer options. Because there was no set contract price, defendant cannot rely on MCL 570.1107(1); MSA 26.316(107X1). The amount of the lien correctly reflects the cost of the materials Erb supplied. VIII Defendant contends that Vugterveen’s and Erb’s liens, added to the amount already paid them and the cost of finishing the work, exceeded the amount the owner originally agreed to pay. At trial, Olde Millpond argued that, under MCL 570.1107(6); MSA 26.316(107)(6), it was not required to satisfy liens which cause the total cost of the completed buildings to exceed the original contract price. It is undisputed that, when the liens are added to the cost of completion, the total far exceeds the original contract price. The trial judge reasoned that to adopt defendant’s position would defeat construction liens generally and run contrary to the purpose of the construction lien statute. However, he adopted a pro rata method for computing the amount owed to each subcontractor, based upon that used in Smalley v Gearing, supra. We disagree with defendant’s contention that MCL 570.1107(6); MSA 26.316(107X6) protects it, in all circumstances, from paying more than the original contract price. Furthermore, we conclude that the trial judge erred in implementing a pro rata scheme for reimbursing the subcontractors under their construction lien claims. As Olde Millpond contends that MCL 570.1107(6); MSA 26.316(107)(6) limits its responsibility to satisfy the construction liens, we consider its meaning. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). The Legislature is presumed to have intended the meaning it plainly expressed. Frasier v Model Coverall Service, Inc, 182 Mich App 741, 744; 453 NW2d 301 (1990). If the plain and ordinary meaning of language is clear, judicial construction is normally neither necessary nor permitted. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992). MCL 570.1107(6); MSA 26.316(107)(6) provides: If the real property of an owner or lessee is subject to construction liens, the sum of the construction liens shall not exceed the amount which the owner or lessee agreed to pay the person with whom he or she contracted for the improvement as modified by any and all additions, deletions, and any other amendments, less payments made by or on behalf of the owner or lessee, pursuant to either a contractor’s sworn statement or a waiver of lien, in accordance with this act. We find that judicial construction is not required, because the language of the statute is clear. We agree that it protects the owner or lessee from excessive liens. However, it does not protect the owner or lessee from cost overruns, such as those which occurred here. Rather, the statute requires that "the sum of the construction liens shall not exceed the amount the owner or lessee agreed to pay the person with whom he or she contracted.” Nothing in the statute indicates that the cost of completing the project must be considered in determining the size or viability of construction liens. The statute simply requires that, when all the construction liens are added together, they may not exceed the original contract price set for the construction plus changes and additions. Completion of a project may require other costs incurred pursuant to other contracts. These need not be considered to establish the owner’s duty to satisfy the original liens. Thus, the trial court erred in determining that, because of the construe tion lien statute, each lien holder was required to accept a pro rata portion of its lien. In reaching this conclusion, we do not overrule Smalley. We do not adopt its reasoning, because the facts of this case are distinguishable and the applicable statutes are different. Based on our analysis, we conclude that Vugterveen and Erb were entitled to a lien in the amounts determined by the trial court before it applied the proration formula. IX Olde Millpond also asserts that the trial court erred in awarding attorney fees and in failing to make a determination on the reasonableness of the fees. An award of attorney fees in a construction lien case is reviewed for an abuse of discretion. Superior Products Co v Merucci Bros, Inc, 107 Mich App 153, 159; 309 NW2d 188 (1981). Here, the judge awarded attorney fees pursuant to MCL 570.1118(2); MSA 26.316(118X2). This section of the construction lien act permits an award of attorney fees to the prevailing party. Both Erb and Vugterveen prevailed in the trial court, notwithstanding that the trial judge awarded each only a pro rata portion of its lien. The court found, contrary to defendant’s allegations, that the attorney fees it awarded were reasonable. We find no abuse of discretion. x Defendant’s claim that the trial court abused its discretion in refusing to let the owner testify regarding the necessity and reasonableness of the drywall repairs is deemed abandoned on appeal. Defendant cites no authority in support of its. position. Goolsby v Detroit, 419 Mich 651, 655, n 1; 358 NW2d 856 (1984). Defendant also concedes that the issue it raised concerning an appeal bond is moot. Because we resolve Olde Millpond’s issues raised on appeal in favor of Vugterveen and Erb, we do not reach the issues raised in Erb’s cross-appeal. We affirm the trial judge’s award of construction liens to Vugterveen and Erb. However, we conclude that they are not to be prorated. We instruct the trial court on remand to enter an order awarding Vugterveen and Erb the full amount of the liens as established at trial before the application of the proration formula. It should be noted that Smalley interpreted the mechanic’s lien statute, which has since been repealed. While similar in certain respects, the mechanic’s lien statute and the modern construction lien statute are by no means identical.
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Murphy, P.J. The issue before this Court is whether the trial court erred in permanently enjoining defendant from using or providing "any of his 'suicide machines,’ or other similar devices, contrivances, or other modalities or drugs (including nonprescription drugs) on, or to, any persons seeking to end a human life, or conducting any acts to help a patient commit suicide regardless of the modality employed.” We hold that no error occurred and accordingly affirm the decision of the trial court. On June 4, 1990, defendant helped Janet Adkins commit suicide. On June 6, 1990, the people filed a complaint for injunctive relief and a motion for a temporary restraining order. The temporary restraining order was not granted, but the trial court did issue an order to show cause why a preliminary injunction should not be issued. At the conclusion of a hearing on June 8, 1990, at which defendant testified, the trial court issued a preliminary injunction temporarily enjoining defendant from using or providing his suicide machines or other devices or drugs in order to help a person seeking to end a human life. A trial was held regarding the people’s request for injunctive relief in January 1991. Although defendant did not testify at trial, his testimony from the June 8, 1990, hearing was admitted as an exhibit. In addition, a statement prepared by defendant was admitted as an exhibit. Numerous other witnesses also testified. Defendant admitted that he helped Ms. Adkins commit suicide by means of his "suicide machine,” which consists of a frame holding three chemical solutions fed into a common intravenous line controlled by a switch and a timer. Defendant admitted that he inserted the intravenous line needle into Ms. Adkins’ arm, but testified that Ms. Adkins activated the switch that turned on the machine and that Ms. Adkins wished to die because she had Alzheimer’s disease and feared for the future. He testified that he discussed the matter with Ms. Adkins and her husband. However, he also admitted that he had no clinical training in Alzheimer’s disease and was unaware of the progress of the disease in Ms. Adkins or whether modes of treatment were available. He testified that he is certified in anatomic and clinical pathology, that he has been unemployed in medicine since 1982 and living off savings, in part because his actions and theories always have been controversial, and that he has no special training in Alzheimer’s disease, geriatric diseases, or neurology. He admitted that the use of his machine is not a medically accepted or recognized procedure. He also stated that he will use his machine in the future in the absence of an injunction preventing him from doing so. On February 5, 1991, the trial court issued an opinion and order permanently enjoining defendant from using his machine or otherwise assisting in a suicide. The court found as fact that defendant’s actions in this case occurred as part of a physician-patient relationship and that his actions must therefore be judged under currently operative standards of medical practice, and not standards that might ensue in the future. The court found that defendant is by education and training a retired pathologist without any experience or any knowledge in the fields of internal medicine, geriatric medicine, psychiatry, neurology, or other areas that might be helpful in diagnosing and managing Alzheimer’s disease. The court found that defendant was not professionally qualified to evaluate the physical or emotional status of Ms. Adkins. Moreover, the court found that defendant made no attempt to take a comprehensive medical history, conduct a physical examination, order any tests, assess Ms. Adkins’ medical status, or consult with experts. The court found that Ms. Adkins, who was fifty-four years old, was neither imminently terminally ill nor suffering from pain. After reviewing the videotaped interview conducted by defendant with Ms. Adkins and her husband, the court found that she was coherent, responsive to verbal communication, and without any obvious physical or mental impairment. The court noted reports that she had played tennis within days of her death. Likewise, the videotape demonstrated that defendant made no real effort to discover whether Ms. Adkins wished to end her life, relying largely on the statements of her husband and a few limited responses from Ms. Adkins. The court found that defendant appeared to be in a hurry during the videotaped interview. The court found that Alzheimer’s disease was not within the province of defendant’s speciality and that his actions did not conform to accepted medical standards. In particular, the court noted in its opinion that defendant had threatened to use his machine again in the future in the absence of an injunction preventing him from doing so. On appeal, defendant does not challenge any of the trial court’s findings of fact. Instead, defendant raises two questions of law. First, defendant claims that the trial court erred in denying his motion for summary disposition based upon the doctrines of collateral estoppel and res judicata after a district court ruled in a related criminal case against the defendant that assisting suicide is not a crime under the laws of the State of Michigan. In People v Hayden, 205 Mich App 412, 414-415; 522 NW2d 336 (1994), this Court recently reiterated the rule that dismissal of a prosecution at a preliminary examination raises no bar under res judicata or collateral estoppel to a subsequent prosecution. If so, then we can see no reason why such a dismissal should collaterally estop a subsequent civil action involving the same facts. Moreover, it is now clear that the district court’s dismissal of the criminal charge against defendant was erroneous. People v Kevorkian, 447 Mich 436; 527 NW2d 714 (1994), cert den sub nom Hobbins v Kelley, — US —; 115 S Ct 1795; 131 L Ed 2d 723 (1995). For these reasons, we find no merit to defendant’s argument. Defendant also claims that the trial court lacked jurisdiction to enjoin him from committing a legal act. As indicated above, it is now clear that defendant’s claimed legal act was in fact illegal. Kevorkian, supra. Alternatively, defendant argues that even if his actions were criminal, injunctive relief should not be available in this case. We disagree. Courts of equity generally will not interfere to prevent the breach of a penal statute except to prevent the continuance of a nuisance affecting health, morals, or safety or to protect a public property right or interest. See Portage Twp v Full Salvation Union, 318 Mich 693, 706; 29 NW2d 297 (1947); Muskegon Building & Construction Trades v Muskegon Area Intermediate School Dist, 130 Mich App 420, 429; 343 NW2d 579 (1983). See also 42 Am Jur 2d, Injunctions, § 157, pp 916-918. On the other hand, the mere fact that an act sought to be enjoined is punishable under the criminal law will not preclude either the state or an individual from invoking the jurisdiction of equity whenever other facts afford a basis for the exercise of equitable jurisdiction. Where equity would otherwise have jurisdiction, the fact that the Legislature has made such conduct a crime does not oust jurisdiction to enjoin. "Criminality neither affords a basis for, nor does it oust the jurisdiction of, the court to grant an injunction.” 42 Am Jur 2d, Injunctions, § 157, p 918. See Garfield Twp v Young, 340 Mich 616; 66 NW2d 85 (1954); Dear-born Nat'l Ins Co v Comm’r of Ins, 329 Mich 107; 44 NW2d 892 (1950); Bd of Health of Grand Rapids v Vink, 184 Mich 688; 151 NW 672 (1915); United States v US Elans, Knights of Ku Klux Elan, Inc, 194 F Supp 897 (MD Ala, 1961); State ex rel Turner v United-Buckingham Freight Lines, Inc, 211 NW2d 288 (Iowa, 1973); Chicago v Larson, 31 Ill App 2d 450; 176 NE2d 675 (1961). In Attorney General ex rel Optometry Bd of Examiners v Peterson, 381 Mich 445, 465-466; 164 NW2d 43 (1969), the Supreme Court held: We believe the better rule and the trend of modern authority is that equity may enjoin the unlicensed practice of a profession. At common law, acts in violation of law constitute a public nuisance. Harm to the public is presumed to flow from the violation of a valid statute enacted to preserve public health, safety and welfare. The attorney general, acting on behalf of the people, is a proper party to bring an action to abate a public nuisance or restrain unlawful acts which constitute a public nuisance. The existence of a criminal or other penalty for the practice of a profession without a license will not oust equity from jurisdiction. We hold that the trial court did not err in exercising equity jurisdiction in this case. Defendant’s conduct before the injunction was entered and his threatened conduct in the future supports the people’s claim that recourse to the criminal courts alone may not be adequate to restrain unlawful acts or threats thereof that constitute, at a minimum, a public nuisance that affects health, morals, or safety. Defendant stated under oath that he would continue to aid in suicides even if his license was revoked. Defendant’s actions implicate the criminal law and his words and actions amount to an advertisement for criminal and unethical conduct. Defendant has made clear that he stands ready to assist people in ending their lives. Defendant has made clear that neither the actions of the Legislature, the executive branch, nor the judiciary will sway him from his course. We will see. Affirmed. Michael J. Kelly, J., concurred.
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Per Curiam. After a jury trial, defendant was convicted of felonious assault, MCL 750.82; MSA 28.277. He appeals as of right. On appeal, defendant claims that the trial judge erred by failing to give sua sponte the instruction defining specific intent, CJI 3:1:16. The failure to object generally precludes appellate review. People v Williams, 114 Mich App 186, 202; 318 NW2d 671 (1982). See GCR 1963, 516.2. If no objection is made, this Court will still reverse a defendant’s conviction if the charge to the jury omits an essential element of the offense. People v Rivera, 120 Mich App 50, 53-54; 327 NW2d 386 (1982). In the present case, the trial court instructed the jury that they must find that defendant intended to injure his victim to find felonious assault. In a felonious assault case, the jury must be instructed that the defendant must have either an intent to injure his victim or an intent to put the victim in reasonable fear or apprehension of an immediate battery. People v Joeseype Johnson, 407 Mich 196; 284 NW2d 718 (1979). The instruction given here did not prejudice the defendant. The judge told the jury that they must find an intent to injure, but ignored the possibility that the jury might find an intent to put the victim in reasonable fear or apprehension of an immediate battery. The instruction given favored the defendant rather than prejudicing him. The instructions properly informed the jury of the elements of the offense which it would have to find proven beyond a reasonable doubt to convict the defendant. We do not believe that the instruction on specific intent (CJI 3:1:16) states an element of the offense. The failure to give the CJI instruction on specific intent is not a failure to instruct on an element of an offense. Here, the jury was specifically instructed on the requisite intent. Even where requested, the refusal to give the specific intent instruction has been found to be harmless where the jury was properly instructed on the requisite intent. People v American Medical Centers of Michigan, Ltd, 118 Mich App 135, 153-154; 324 NW2d 782 (1982). This Court has also rejected claims based on a failure to define sua sponte specific intent where the instructions on intent were adequate. People v Richardson, 118 Mich App 492, 496-497; 325 NW2d 419 (1982). If the intent required to convict is adequately described, the failure to use the term "specific intent” is not an error. People v Mitchell, 61 Mich App 153, 161-163; 232 NW2d 340 (1975). The instructions given by the judge adequately informed the jury of the elements of the offense. We also note that intent was not an issue in this case. The complaining witness charged that defendant fired three shots at him with a handgun. The defendant did not testify; his counsel argued that the witnesses had contrived a story in their efforts to unjustly convict the defendant. For this reason alone, this case can clearly be distinguished from People v McMaster, 105 Mich App 162; 306 NW2d 434 (1981), and People v Wilson, 113 Mich App 591; 318 NW2d 479 (1981). In each of those cases, the defendant asserted an intoxication defense. Even so, neither case ruled that the failure to give the specific intent instruction was error. In McMaster, supra, the Court held that the trial court should have either given the intoxication instruction or clarified the intent element of felonious assault. In Wilson, supra, the Court held that the trial court erred by instructing the jury that voluntary intoxication was not a defense to a charge of felonious assault. The Court stated that the trial court should have instructed on voluntary intoxication in a specific intent crime or should have clarified its instructions on the requisite intent to convict of felonious assault. Wilson, supra, p 593. Affirmed.
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Per Curiam. Defendant appeals as of right from his January 26, 1983, jury conviction of delivery of cocaine, MCL 333.7401, subds (1), (2)(a)(iii); MSA 14.15(7401), subds (1), (2)(a)(iii). On February 28, 1983, he was sentenced to from 10 to 20 years imprisonment. Defendant’s conviction for his March 31, 1982, delivery of cocaine resulted from an undercover operation of the Tri-County Metro Narcotics Squad. Robert Fisher, an East Lansing police officer, and Brian Smolley, a police informant, were the principal actors in this particular undercover operation. Other police officers, including Lieutenant Whitford, Deputy Rojeski, and Officer Young, conducted surveillance. Testimony at trial indicated that Smolley and Fisher went to a residence in Lansing, Michigan, and met with an individual named Shone Six to purchase cocaine. Although Smolley and Fisher observed a baggie containing a white substance believed to be cocaine at that time, no drugs were purchased. Instead, the two men followed Six to another location. Fisher gave Six sufficient money for the purchase of one ounce of cocaine. Six then returned to his vehicle and proceeded down a street out of the sight of Smolley and Fisher, who remained at the intersection waiting for Six’s return. Whitford, who had begun surveillance of the two vehicles at the Lansing residence where Fisher and Smolley had met Six, followed Six after he left Fisher and Smolley at the intersection. Whitford trailed Six to a dead-end road where defendant’s house was located. He did not follow Six down the road, rather he parked his vehicle in a church parking lot and proceeded through a wooded field area on foot. He observed Six’s vehicle parked in the driveway of a house at the end of the road. When Six left defendant’s house, he was followed by members of the surveillance team. When he arrived at the intersection, he returned the money to Fisher and all three men proceeded to a nearby bar. After waiting in the bar for approximately 45 minutes, Six left the bar and got into a red Lincoln automobile in the parking lot. At trial, Fisher identified defendant as the occupant of the red Lincoln. Six then re-entered the bar and all three men returned to Smolley’s vehicle where Six gave Fisher two baggies containing a white powdery substance which was identified at trial as over 100 grams of cocaine. Meanwhile, the surveillance team had observed the Lincoln in the bar parking lot and obtained its license plate number. After Six exited from the vehicle, Whitford followed the Lincoln to the dead-end road leading to defendant’s home. Whitford and Rojeski walked down the roadway and observed the Lincoln parked in the same driveway where Six had previously parked. The residence where the Lincoln was parked was secured by Rojeski and other officers while Whitford returned to the bar to obtain a description of the driver of the Lincoln from Fisher. Later that same evening a search warrant was executed and various items seized. Defendant first argues that the trial court erroneously denied his mid-trial motion to suppress any testimony and identifications obtained as a result of allegedly illegal searches by Lt. Whitford and Deputy Rojeski. Defendant asserts that the officers trespassed upon private property and invaded his reasonable expectation of privacy without probable cause or exigent circumstances. The basis for defendant’s claim is the observation of Six’s vehicle made by Whitford from the wooded area and the observations of the red Lincoln made by Whitford and Rojeski from the roadway. After conducting a suppression hearing, the trial court made detailed findings of fact and denied defendant’s motion. Specifically, the court found: (1) neither of the observations involved a trespass by the officers, (2) the road from which Rojeski and Whitford observed the Lincoln was a private road/ private easement, and (3) the road had all the indicia and appearance of a roadway open to the public. Based upon the foregoing facts, the court determined: that there had been "no observation which [was] subject to the constraints imposed by the Fourth Amendment”; that even if there had been a technical trespass, it was limited to an area beyond the curtilage of defendant’s property and was thus subject to the open field exception of Hester; and, further, that defendant had no reasonable expectation of privacy with regard to the driveway where the vehicles were observed. A ruling by the trial court on a motion to suppress evidence will not be disturbed on appeal unless it is clearly erroneous. People v Julkowski, 124 Mich App 379; 335 NW2d 47 (1983); People v Grimmett, 97 Mich App 212; 293 NW2d 768 (1980). Given the special opportunity of the trial court to observe the demeanor of the testifying witnesses and to assess their credibility, we will not reverse unless we are left with a definite and firm conviction that the trial court erroneously decided the motion. Our review .of the record discloses no error in the ruling below. While recognizing the general rule that searches conducted without a warrant are per se unreasonable under the Fourth Amendment, subject to certain well-recognized exceptions, before invoking the general rule it must first be determined whether a search has occurred. Katz v United States, 389 US 347, 357; 88 S Ct 507; 19 L Ed 2d 576 (1967). As noted by the Supreme Court in Katz, p 351, "the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection”. Thus, the question is whether defendant had a reasonable expectation of privacy in the area allegedly searched, which in this case is his driveway. We agree with the trial court that defendant did not have a reasonable expectation of privacy and that no constitutionally prohibited search occurred. We note that the area involved in the present case, a driveway, would most likely be considered as within the curtilage of defendant’s home. See People v Taylor, 2 Mich 250 (1851). The question of whether a search occurred, however, is not to be determined by somewhat outdated property concepts. Moreover, the trial court determined, and we agree, that the officers did not trespass upon any land owned by defendant at the time they made their observations. The focus of the inquiry must center on the individual rather than the particular area searched in determining whether the individual had a reasonable expectation of privacy. People v Taormina, 130 Mich App 73; 343 NW2d 236 (1983); Katz, supra. In the present case, the trial court found that defendant did not have a reasonable expectation of privacy based upon the testimony of neighbors regarding the nature and extent of the traffic on the roadway. Although recognizing the status of the road as private, the court noted that it looked like and had been treated as a public right-of-way and was used by not only defendant, his neighbors and their guests, but also by members of the general public. Although the testimony in this respect was conflicting, as was the testimony concerning the existence and placement of "No Trespassing” signs, we find no basis for substituting our judgment for that of the trial court. Defendant places great emphasis upon the testimony of the officers that they "crept” down the "private roadway”, "being very careful” and "peering around” once they neared the end of the roadway, in support of his claimed invasion of privacy. These comments were presented to the trial court and were considered, along with other testimony, in its decision. We find the officers’ characterization of their activities to be insufficient evidence of an illegal search or seizure. In any surveillance operation, secrecy and surreptitious behavior are the norm; simply because the officers proceeded cautiously and undercover in an area in which they had a right to be does not magically strip their observations of their legal character and result in an illegal search. The officers were legally on the roadway when they made their observation of the red Lincoln and Lt. Whitford was in a wooded field not owned or claimed by defendant at the time he observed Six’s vehicle in defendant’s driveway. Because defendant had no reasonable expectation of privacy in an area he knowingly exposed to the public and because the officers were in areas they had a right to be in, the observation of the vehicles in defendant’s driveway did not constitute a search within the meaning of the Fourth Amendment. Testimony concerning the officers’ observations was properly admitted at trial. Next, relying on Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), defendant claims that he was denied due process of law and a fair trial as a result of the intentional destruction of evidence which allegedly may have been beneficial to his case. We find defendant’s reliance on the cited case to be misplaced and find no due process violation. First, unlike the situation in Brady, there was no specific pretrial request for the production of the suppressed evidence. Secondly, the evidence destroyed, plastic bags containing marijuana, was listed on the return of the search warrant and, although defense counsel moved to suppress all of the evidence seized pursuant to the warrant, no request for its production was made. Further, where the evidence withheld was not requested by defense counsel, a denial of due process will only be found where the evidence was sufficient to create a reasonable doubt which might not otherwise have existed. United States v Agurs, 427 US 97; 96 S Ct 2392; 49 L Ed 2d 342 (1976). In the present case, defendant argued that the bags of marijuana were of critical importance to his defense because, if they were different from the plastic bags which contained the cocaine, they would provide support for his theory that he did not supply the cocaine to Shone Six. For constitutional purposes, to establish the materiality of omitted evidence requires a showing greater than that the evidence "might” have affected the verdict; omitted evidence is considered material if it creates a reasonable doubt. Agurs, supra; People v Somma, 123 Mich App 658; 333 NW2d 117 (1983). Here, defendant was identified as the individual in the red Lincoln prior to Six’s delivery of the cocaine to Fisher, Six’s vehicle was seen at defen dant’s home before the delivery occurred, and finally, defendant’s fingerprint was found on one of the bags of cocaine. We find nothing to suggest that the bags of marijuana were evidence favorable to the defendant, nor do we find that the destroyed evidence was material to defendant’s guilt or innocence of the charged offense. Given our resolution of this issue, we note that defendant was not entitled to either dismissal or an instruction that had the evidence been produced it would have been favorable to the defendant. Such an instruction is not appropriate in situations such as the case at bar where the evidence was known or at least within the sphere of knowledge of the defendant, no effort was made to ensure its production at trial, and the evidence is not material to the issues at trial. We also note that defendant was charged with delivery of cocaine and not with any offense relating to possession, distribution, or delivery of marijuana. Although it appears that the marijuana was intentionally destroyed, we find no support for the view that the law enforcement officers acted in an intentional manner to destroy relevant and material evidence. The destruction of this evidence occurred prior to any defense request and does not appear to have been motivated by any bad faith or improper motive. See People v Oliver, 111 Mich App 734; 314 NW2d 740 (1981); Somma, supra. We caution prosecutors and law enforcement personnel to avoid the creation of prejudicial and reversible error by virtue of the destruction of evidence thought to be immaterial, unrelated, or simply irrelevant. The better approach might well be to keep all evidence until the criminal prosecution is concluded without concern for its value at trial. Given the facts of the present situation, however, we are convinced that error of a constitutional magnitude did not occur. Defendant’s remaining allegations of error require neither reversal nor extensive discussion. We find no basis for defendant’s claim that this Court is required to explain its April 29, 1983, order denying him bond pending appeal. GCR 1963, 790.5 and People v Spicer, 402 Mich 406; 263 NW2d 256 (1978), apply to pretrial release situations. Following conviction, the defendant is no longer entitled to the presumption of innocence and release on bail or bond becomes a matter of discretion, not of right. See MCL 765.6(1), 770.9; MSA 28.893(1), 28.1106. Given this Court’s prior exercise of discretion, we perceive no reason to disturb or explain the order denying defendant’s request for bond pending appeal. Defendant next claims that the controlled substance provisions of the Public Health Code violate the title-object clause of the Michigan Constitution, Const 1963, art 4, § 24. We disagree. See People v Trupiano, 97 Mich App 416; 296 NW2d 49 (1980), lv den 409 Mich 895 (1980). Nor do we find that the classification of cocaine as a narcotic violates constitutional guarantees of equal protection and due process. See People v Harman, 124 Mich App 93; 333 NW2d 591 (1983), lv den 417 Mich 1100.45 (1983); People v Kaigler, 116 Mich App 567; 323 NW2d 486 (1982). Challenges to the penalty provisions on the basis of cruel and unusual punishment have also been consistently rejected by panels of this Court. See Kaigler, supra; People v Key, 121 Mich App 168; 328 NW2d 609 (1982). Finally, we find no merit to defendant’s claim that the controlled substance provisions of the Public Health Code infringe upon his fundamental rights of liberty and privacy. See People v Stout, 116 Mich App 726; 323 NW2d 532 (1982). Defendant alleges error in regard to three separate jury instructions. We find no error in the trial court’s instructions on the elements of the charged offense: delivery of cocaine. Contrary to defendant’s assertion, the trial court properly instructed the jury on the element of delivery and was not required to give CJI 12:2:03(2) and (3) [subsequently revised on June 4, 1983] inasmuch as those instructions are applicable to cases where the defendant is charged with attempted delivery, a situation quite different from the present case. We also find no error in the trial court’s refusal to give a specific intent instruction. As in People v Elmore, 94 Mich App 304; 288 NW2d 416 (1979), we find that the instructions properly informed the jury that delivery required both knowledge of the nature of the substance and an intent to deliver the substance to another. Next, defendant claims that reversal is required because the trial court gave allegedly erroneous instructions regarding a jury view of certain premises. At defendant’s request, the jury was taken to the bar where the transfer of the drugs was alleged to have occurred. The trial court gave a brief instruction to the jury prior to the view and again in its closing instructions. The instructions given did deviate from CJI 4:7:01, however, no objection was raised to either instruction. Absent a timely and specific objection, this Court will only review an instruction and reverse if manifest injustice would result from failure to consider the issue. People v Velasquez, 125 Mich App 1; 335 NW2d 705 (1983); People v Haney, 86 Mich App 311; 272 NW2d 640 (1978). The purpose of the objection requirement is to allow the trial court to effect an immediate correction, thus curing any potential prejudice. We find no manifest injustice in this situation and we decline to reverse. There is no indication that the jurors were confronted during their visit to the bar with anything not covered by the testimony and evidence admitted at trial. We refuse to speculate that the jurors might have been affected by outside influences; any error or prejudice could have been avoided by a timely objection at trial. In conjunction with the above alleged error, defendant claims that he is entitled to reversal of his conviction due to claims that two jurors made an independent and unsupervised visit to the bar. We find no prejudice requiring reversal. As noted in People v Kudla, 223 Mich 137; 193 NW 844 (1923), any error resulting from the unauthorized visit to the bar by members of the jury panel is cured by sending the entire panel to the scene. Nor do we find that defendant was denied a fair trial by the post-trial discovery that one of the jurors had previously worked at the bar. This fact was apparently disclosed to the trial court but not to defense counsel during trial. While we believe that the better practice would have been to inform counsel and to have the juror examined on the record to determine whether his employment would have affected his ability to decide the case fairly, we believe neither reversal nor a remand is required. Presumably, the fact of this juror’s prior employment could have been discovered on voir dire and this fact alone would not have precluded him from sitting as a member of the jury panel. Given the quantum of evidence presented, the lack of any identifiable prejudice, and the fact that all of the jurors had the opportunity to observe the bar, we find no reversible error. We have reviewed defendant’s allegations of error and find none which merit reversal. Thus, we affirm the conviction and sentence imposed below. Hester v United States, 265 US 57; 44 S Ct 445; 68 L Ed 898 (1924).
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Young, Jr., J. This case involves claims arising out of infelicitous securities investments in which defendant advised plaintiffs to participate. As a part of these investment transactions, plaintiffs executed customer agreements providing that any claims against defendant arising from the investments must be submitted to binding arbitration within one year of the accrual of the cause of action. Plaintiffs sued and defendant moved to dismiss plaintiffs’ claims on the basis that plaintiffs had agreed to arbitrate any such disputes and that, under the arbitration provisions, plaintiffs’ claims were barred by the contractual limitation period. The trial court concluded that plaintiffs’ claims were barred by the contractual limitation period and dismissed plain tiffs’ action. The plaintiffs appealed. Relying on Michigan precedent, Bennett v Shearson Lehman-American Express, Inc, 168 Mich App 80, 83; 423 NW2d 911 (1987), we affirmed the determination that the plaintiffs’ claims are arbitrable and reversed and remanded for arbitration, holding that procedural issues, such as the timeliness of an otherwise arbitrable claim, must be determined by the arbitrator, not the court. Amtower v William C Roney & Co, unpublished opinion per curiam of the Court of Appeals, issued February 11, 1997 (Docket No. 165777). This case has now returned to us on remand from the Supreme Court for the limited purpose of considering “whether the Federal Arbitration Act [FAA], 9 USC 1 et seq., requires that a court instead of arbitrators decide the issue of the timeliness of plaintiffs’ claims.” 457 Mich 864 (1998). We hold that it does not, and we again conclude that the timeliness of plaintiffs’ claims is a question to be decided by the arbitrator rather than the trial court. Accordingly, we reverse and remand this matter for further proceedings. I. UNDERLYING FACTS AND PROCEDURAL HISTORY For completeness, we repeat the facts of this case as set forth in our prior unpublished opinion: Following the advice of defendant, an investment adviser, plaintiffs invested in a limited partnership known as the Certified Historic Income Properties VH Limited Partnership (chips vii). Twelve of the plaintiffs, Franklin Amtower, Richard Bumb, Richard Cummings, Thomas DeAgostino, David Farber, Jeffrey Farber, Carl Freeman, Patricia Hutchinson, Gary Lambert, Paul Tatseos, Barry Miller and John Christ, executed customer agreements with defendant. These agreements provided that any claims against defendant arising out of the chips vn transaction would be submitted to binding arbitration within one year of the accrual of the cause of action. Plaintiffs brought this action pursuant to the Michigan Consumer Protection Act, MCL 445.901 et seq.-, MSA 19.418(1) et seq. Plaintiffs alleged that defendant misrepresented pertinent facts regarding the integrity of the CHIPS VII investment.[ J Defendant moved for summary disposition against Amtower, Bumb, Cummings, DeAgostino, David and Jeffrey Farber, Freeman, Hutchinson, Lambert, Tatseos, Miller and Christ, arguing for outright dismissal or, alternatively, for an order to compel arbitration. Defendant argued that the arbitration agreement precluded these plaintiffs from obtaining relief from the courts. Defendant also argued that the action had been brought more than one year from the time the cause of action accrued. Defendant argued that the cause of action accrued in October, 1990, when plaintiffs were notified that the chips vn investments were failing. Plaintiffs argued in response that the arbitration agreement was invalid because they had not made a knowledgeable waiver of rights. Plaintiffs also argued that the cause of action did not accrue until May 8, 1991, when they learned that the chips vii general partner had misappropriated funds. The trial court concluded that the arbitration agreement was valid and that the cause of action accrued in October, 1990. The trial court granted defendant’s summary disposition motion. The trial court later denied plaintiffis’] motion for relief from order and for reconsideration pursuant to MCR 2.612. On appeal, plaintiffs abandoned any claim that the arbitration agreements were invalid and argued only that the trial court erred in determining that their cause of action accrued in October 1990. Defendant argued that the court correctly made this determination. Although not an issue raised by the parties, we held in our prior opinion that the arbitrator, not the trial court, should decide whether plaintiffs’ claims were barred by the contractual one-year limitation period: Although the existence of a contract to arbitrate and its enforceability is a judicial question that cannot be decided by an arbitrator, City of Huntington Woods v Ajax Paving [Industries, Inc (After Remand)], 196 Mich App 71, 74; 492 NW2d 463 (1992), procedural matters arising out of an arbitrable dispute are for the arbitrator, and not the court, to determine. Bennett v Shearson Lehman-American Express, Inc, 168 Mich App 80, 83; 423 NW2d 911 (1987). As such, the timeliness of bringing of an arbitration proceeding is a procedural issue to be determined by the arbitrator rather than the courts. Id.; see also Nielsen v Barnett, 440 Mich 1, 10; 485 NW2d 666 (1992). Therefore, the trial court erred in making a determination regarding when plaintiffs’ cause of action accrued. On the basis of defendant’s argument in seeking leave to appeal to the Supreme Court, that the FAA preempted state law and that federal law required the court rather than an arbitrator to determine the question of timeliness, the Supreme Court, in lieu of granting leave to appeal, remanded the matter for further consideration. H. ANALYSIS Now that it has made its legal position more clear, we agree with defendant that the faa applies to this dispute, which dispute unquestionably arises out of contracts involving interstate commerce. Allied-Bruce Terminix Cos, Inc v Dobson, 513 US 265; 115 S Ct 834; 130 L Ed 2d 753 (1995). State courts are bound, under the Supremacy Clause, US Const, art VI, cl 2, to enforce the faa’s substantive provisions. Ultra-cashmere House, Ltd v Meyer, 664 F2d 1176, 1180 (CA 11, 1981). However, as more fully explained below, because the parties broadly agreed to arbitrate the merits of any controversy arising between them, we conclude that federal law requires that an A GENERAL FEDERAL RULE — 'TIMELINESS ISSUES AS QUESTIONS OF “PROCEDURAL ARBITRABILITY’ In John Wiley & Sons, Inc v Livingston, 376 US 543, 557-558; 84 S Ct 909; 11 L Ed 2d 898 (1964), the Supreme Court held that “[o]nce it is determined . . . that the parties are obligated to submit the subject matter of a dispute to arbitration, ‘procedural’ questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator.” Since that decision, an overwhelming majority of fed eral appellate circuits (including the Sixth Circuit Court of Appeals) considering the issue have determined that timeliness of a claim is a procedural matter and, therefore, within the arbitrator’s jurisdiction. Michigan, which has developed its own strong policy favoring arbitration on the basis of federal precedent, is in accord. Michigan law also provides that arbitrators, rather than courts, should decide the application of such potential defenses to arbitration as contractual limitation periods, statutes of limitation, and the doctrine of laches. See, e.g., Brown v Holton Public Schools, 397 Mich 71, 73-74; 243 NW2d 255 (1976); Iron Co v Sundberg, Carolson & Associates, Inc, 222 Mich App 120, 126; 564 NW2d 78 (1997); Bennett, supra at 83. B. PARTIES’ INTENT TO RESERVE TIMELINESS ISSUES FOR THE COURT Notwithstanding the general federal rule, it is equally clear that the parties to an arbitration agreement can provide that certain issues be determined by the court if they so specify in their contract. “ ‘[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he had not agreed so to submit.’ ” AT & T Technologies, Inc v Communications Workers of America, 475 US 643, 648; 106 S Ct 1415; 89 L Ed 2d 648 (1986) (citations omitted). Thus, “the basic objective in this area is ... to ensure that commercial arbitration agreements, like other contracts, ‘are enforced according to their terms,’ and according to the intentions of the parties.” First Options of Chicago, Inc v Kaplan, 514 US 938, 947; 115 S Ct 1920; 131 L Ed 2d 985 (1995) (citations omitted). Consequently, the determination whether the issue of timeliness must be decided by the arbitrator or a court inexorably becomes a question of contract interpretation. When deciding whether the parties agreed to arbitrate a certain matter, courts should ordinarily apply basic state-law principles that govern the formation of contracts. Id. at 944. “ ‘The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties’ ” Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195, 209; 220 NW2d 664 (1974), quoting McIntosh v Groomes, 227 Mich 215, 218; 198 NW 954 (1924) (emphasis in Goodwin). “Where the language of a contract is clear and unambiguous, the intent of the parties will be ascertained according to its plain sense and meaning.” Haywood v Fowler, 190 Mich App 253, 258; 475 NW2d 458 (1991). However, consistent with the strong federal policy promoting arbitration, any ambiguity concerning whether a specific issue falls within the scope of arbitration, such as whether a claim is timely, must be resolved in favor of submitting the question to the arbitrator for resolution. See AT & T Technologies, supra at 650. In other words, there is a presumption of arbitrability “ ‘unless it may be said with positive assurance that the arbitration clause is not susceptible of an inteipretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.”’ Id., quoting United Steelworkers of America v Warrior & Gulf Navigation Co, 363 US 574, 582-583; 80 S Ct 1347; 4 L Ed 2d 1409 (I960). In First Options, supra at 945, the Court explained that when the parties have a contract that provides for arbitration of some issues, “the parties likely gave at least some thought to the scope of arbitration.” Therefore, the law “insist[s] upon clarity before concluding that the parties did not want to arbitrate a related matter.” Id. With these principles in mind, we turn to the arbitration provisions at issue in this case. Most of the customer agreements contain the following language related to arbitration: Any and all controversies which may arise between us . . . concerning, arising out of, or relating to, your business, my accounts), transactions with you for me, any other transactions, this agreement or the construction, performance or breach of this or any other agreement between us . . . shall be submitted to, and settled and determined by, binding arbitration.... Arbitration must be commenced within one year after the cause of such action accrued by service upon the other of a written demand for arbitration or a written notice of intention to arbitrate, naming therein the arbitration tribunal. Some of the agreements used slightly different language, but with the same import: It is agreed that any controversy between us arising out of. . . this agreement shall be submitted to arbitration .... Arbitration must be commenced within one year after the cause of action accrued by service upon the other of a written demand for arbitration or a written notice of intention to arbitrate, naming therein the arbitration tribunal. Particularly when considered in light of the federal presumption in favor of arbitrability, we believe that these broadly worded arbitration clauses, covering as they do any controversy arising between the parties, indicate that the arbitrator must decide the timeliness issue. This conclusion makes sense when one considers that the timeliness issue itself requires a determination of often-disputed, as here, fact questions regarding when “the cause of action accrued.” Federal precedent makes it clear that, ordinarily, this is a question that the arbitrator is in a better position to decide. In John Wiley & Sons, supra at 556-557, the Court explained: We also believe, as a general rule, that submitting procedural matters, such as timeliness, to the arbitrator is consistent with the United States Supreme Court’s admonition that in deciding whether the parties have agreed to submit a particular grievance to arbitration, “a court is not to rule on the potential merits of the underlying claims.” AT &T Technologies, supra at 649. Questions concerning the procedural prerequisites to arbitration do not arise in a vacuum; they develop in the context of an actual dispute about the rights of the parties to the contract or those covered by it. . . . Doubt whether grievance procedures or some part of them apply to a particular dispute, whether such procedures have been followed or excused, or whether the unexcused failure to follow them avoids the duty to arbitrate cannot ordinarily be answered without consideration of the merits of the dispute which is presented for arbitration. C. EXCEPTIONS TO THE GENERAL RULE — RONEY & CO v KASSAB AND SMITH BARNEY, INC v SARVER In opposition to the general federal rule favoring the determination of timeliness issues by an arbitrator, defendant cites two recent decisions from the Sixth Circuit Court of Appeals, Roney & Co v Kassab, 981 F2d 894 (CA 6, 1992), and Smith Barney, Inc v Sarver, 108 F3d 92 (CA 6, 1997), for the proposition that the court must determine whether a plaintiff’s claims are barred by a contractual limitation period in the absence of clear and unmistakable evidence that the parties intended the question to be for the arbitrator. However, these cases are clearly distinguishable, involving contract language much different than that at issue here. Roney & Co, supra at 898, involved Rule 603 of the New York Stock Exchange, while Smith Barney, supra at 94, n 2, involved the identically worded §15 of the Code of Arbitration Procedure of the National Association of Securities Dealers, Inc. Both provisions state that after six years from the events giving rise to the dispute have elapsed, the dispute “shall [not] be eligible for submission to arbitration . . . .” In light of this “eligible for submission” language, it has been recognized that Rule 603 and §15 are unlike ordinary procedural limitation periods because they indicate “that the parties intended to bar from arbitration disputes raised more than six years after the events giving rise to them.” PaineWebber Inc v Hartmann, 921 F2d 507, 513 (CA 3, 1990); see also Cogswell v Merrill Lynch, Pierce, Fenner & Smith Inc, 78 F3d 474, 476 (CA 10, 1996). Furthermore, even given the unique character of the time-bar language of Rule 603 and § 15 at issue in Roney & Co and Smith Barney, we note that currently there is an even split among the federal appellate circuits regarding the question whether such language abrogates the general rule that timeliness is a procedural matter that must be submitted to the arbitrator. We conclude that the analysis contained in Roney & Co and Smith Barney is limited to the unique language of Rule 603 and § 15 and represents a specific exception to the general federal rule that timeliness issues must be submitted to an arbitrator. Conse quently, the decisions in Roney & Co and Smith Barney provide no guidance in our determination how the arbitration agreements in this case should be construed. We further conclude that the contractual language at issue in this case does not unmistakably remove the issue of the timeliness of a claim from the purview of the arbitrator and is thus not equivalent to the language that the Sixth Circuit Court of Appeals found in Roney & Co and Smith Barney to preclude submission of the issue to an arbitrator. m. CONCLUSION Because the parties have included a broadly worded arbitration provision encompassing the core claim, we conclude that the timeliness of plaintiffs’ claims is for the arbitrator to decide as a procedural matter. Accordingly, we reverse and remand this matter to the trial court with instructions to grant defendant’s alternative motion to compel arbitration. We do not retain jurisdiction. Reversed and remanded. Upon remand, Judge Holbrook, Jr., was substituted for (now) Justice Clifford W. Taylor. Plaintiffs also alleged claims of breach of fiduciary duty, breach of contract, and negligence. Although defendant mentioned the faa and cited various federal cases in arguing before this Court that the trial court properly calculated the accrual date of plaintiffs’ claims, defendant did not, until it filed briefs in the Supreme Court, assert that the matter was actually governed by the faa. We therefore addressed the arbitration question relying on Michigan precedent. See Bennett, supra at 83. In any event, we note that Bennett, although a Michigan case, is entirely founded on federal law. Bennett can be traced directly back to our Supreme Court’s decision in Brown v Holton Public Schools, 397 Mich 71, 73-74; 243 NW2d 255 (1976), which, in turn, relied on a series of federal cases. Thus, as a practical matter, whether the issue at hand (who, as between arbitrator or court, should determine a timeliness question) is addressed under Michigan or federal law, the legal rule and result is the same. See, e.g., Glass v Kidder Peabody & Co, Inc, 114 F3d 446, 455 (CA 4, 1997); United Rubber, Cork, Linoleum, & Plastic Workers of America, AFL-CIO, CLU, Local 164 v Pirelli Armstrong Tire Corp, 104 F3d 181, 184 (CA 8, 1997); Local 285, Service Employees Int’l Union, AFL-CIO v Nonotuck Resource Associates, Inc, 64 F3d 735, 739 (CA 1, 1995); Denhardt v Trailways, Inc, 767 F2d 687, 689-690 (CA 10, 1995); Nursing Home & Hosp Union No 434 AFL-CIO-LDIU v Sky Vue Terrace, Inc, 759 F2d 1094, 1097 (CA 3, 1985); Commerce Park at DFW Freeport v Mardian Constr Co, 729 F2d 334, 339, n 5 (CA 5, 1984); Belke v Merrill Lynch, Pierce, Fenner & Smith, 693 F2d 1023, 1027-1028 (CA 11, 1982); O’Neel v Nat’l Ass’n of Securities Dealers, Inc, 667 F2d 804, 807 (CA 9,1982); Conticommodity Services Inc v Philipp & Lion, 613 F2d 1222, 1227 (CA 2, 1980); Chambers v Beaunit Corp, 404 F2d 128, 131 (CA 6, 1968). See Detroit v AW Kutsche & Co, 309 Mich 700, 703; 16 NW2d 128 (1944). In Michigan, arbitration clauses are to be liberally construed with any doubts to be resolved in favor of arbitration. Chippewa Valley Schools v Hill, 62 Mich App 116, 120; 233 NW2d 208 (1975). Although the general principles to be applied in construing arbitration agreements originated in the labor context, we note that the United States Supreme Court has since applied them in a commercial arbitration case. See First Options, supra; see also PaineWebber Inc v Elahi, 87 F3d 589, 594, n 6 (CA 1, 1996) (recognizing that principles derived from labor arbitration cases may be applied in a commercial setting). By way of illustration, the Third, Sixth, Seventh, Tenth, and Eleventh Circuit Courts of Appeal have held that the application of the § 15 time-bar provision is for the court to decide. See, e.g., Smith Barney, supra; Cogswell, supra at 478-481; Merrill Lynch, Pierce, Fenner & Smith, Inc v Cohen, 62 F3d 381, 383-384 (CA 11, 1995); Smith Barney Inc v Schell, 53 F3d 807, 809 (CA 7, 1995); PaineWebber Inc v Hofmann, 984 F2d 1372, 1378 (CA 3, 1993). On the other hand, the First, Second, Fifth, Eighth, and Ninth Circuit Courts of Appeal have held that the application of §15 is reserved for the arbitrator. See, e.g., PaineWebber Inc v Elahi, 87 F3d 589, 599 (CA 1, 1996); PaineWebber Inc v Bybyk, 81 F3d 1193, 1196-1199 (CA 2, 1996); Smith Barney Shearson, Inc v Boone, 47 F3d 750, 753-754 (CA 5, 1995); FSC Securities Corp v Freel, 14 F3d 1310, 1312-1313 (CA 8, 1994); O’Neel v Nat’l Ass’n of Securities Dealers, Inc, 667 F2d 804, 807 (CA 9, 1982). As stated in the text, the language of Rule 603 is identical. This exception to the general rule is nevertheless consistent with the basic presumption of arbitrability, AT & T Technologies, supra at 650, and the principle that a court must enforce only the contractual arbitration agreement the parties have struck. First Options, supra at 947. As recognized in General Drivers, Warehousemen & Helpers, Local Union 89 v Moog Louisville Warehouse, 852 F2d 871 (CA 6, 1988), procedural matters (such as the timeliness of a claim) are presumptively resolved by an arbitrator unless the parties have specified otherwise in the arbitration agreement. See id. at 875. In General Drivers, the parties’ arbitration agreement provided that untimely grievances “ ‘shall not thereafter be arbitrable.’ ” Id. at 873. The Sixth Circuit Court of Appeals found that this language constituted “positive assurance” that the parties intended that the timeliness issue was for the court to decide as a condition precedent to arbitration. Id. at 874. As stated in the text, the language of the parties’ arbitration agreements in this case contains no similar language of “positive assurance” that they intended to remove the question of timeliness of a claim from the arbitrator’s consideration.
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Wiest, J. Plaintiff filed the original bill in this case to1 be decreed a partner with defendant Donald M. Ward in the Ward-MacAulay Company, and to have an accounting and a dissolution, of the firm. Defendant Ward appeared, filed an answer and cross-bill, but failed to take part at the hearing. During the alleged partnership, and before the bill herein was filed, the Ward-MacAulay Company stored four concrete mixers in the warehouse of defendant Richards Storage Company and took negotiable warehouse receipts in the firm name in accord with the uniform warehouse receipts statute (2 Comp; Laws 1915, § 6563 et s.eq.). The goods were stored by and the receipts given to defendant Ward and later turned over to plaintiff, as a partner in the firm, to see if he could borrow money on them. The receipts were not negotiated but were held by plaintiff as a partner and for the benefit of the Ward-MacAulay Company. While plaintiff so held the receipts, and after this suit was commenced, defendant Ward obtained the concrete mixers from the storage company, stating that the receipts had been lost and the suit by plaintiff adjusted. Thereafter plaintiff obtained leave and filed a supplemental bill against the storage company to have a decree holding that company liable to respond to him under the warehouse receipts to the amount due him on an accounting of the affairs of the partnership, not exceeding, however, the value of the concrete mixers. The Richards Storage Company appeared, answered, and defended. The court found the partnership, stated the account between the partners, found there was $1,474.50 due plaintiff, and that the storage company had no right to deliver the concrete mixers to Ward without surrender of the warehouse receipts, and entered decree against defendant Ward and the storage company for'the mentioned amount. The storage company then located Ward and asked for a rehearing at which Ward’s testimony might be taken upon the partnership accounting. The court denied a rehearing, and the storage company appealed. The important question is whether the storage company is liable. The concrete mixers stored in the warehouse were partnership property. The' warehouse receipts named the firm as bailor, belonged to the partnership, and were-not negotiated. It is true that plaintiff had the receipts in his possession, but he only held them as a partner and for the partnership. Delivery of the mixers by the storage company to Ward, one of the partners, constituted a delivery to the partnership, and, the receipts not having been negotiated, such delivery freed the storage company from all liability to the partnership and to plaintiff, one of the partners, without surrender of the receipts, unless the storage company had notice of the trouble between the partners and that it involved rights connected with the mixers and should have withheld delivery. Some dates are material and we state them. The warehouse receipts were issued October 8, 1924. January 5, 1925, the original bill herein was filed and a temporary injunction issued restraining defendant Ward from selling, concealing, incumbering, or in any manner disposing of the personal property or assets belonging to the partnership. April 6, 1925, on motion of defendant Ward, the injunction was modified by dissolving the mentioned restraint. July 20, 1925, the storage company delivered the mixers to Ward upon the representation that the receipts were lost and the suit by plaintiff adjusted. Ward disposed of the mixers and left the State. November 28, 1925, plaintiff filed the supplemental bill herein against the Richards Storage Company, charging wrongful delivery of the mixers to Ward and asking that the storage company be made to respond to him as before mentioned. Our disposition of the case renders it unnecessary to consider the account between the partners and the application for rehearing upon that subject. Defendant Ward has not appealed. The appeal of the storage company brings before us the question of whether it is liable to respond at all to plaintiff. The trial judge found that the partnership was dissolved, for the reason hereinafter mentioned, prior to the delivery of the mixers to Ward, and, therefore, Ward had only the power conferred by law upon a partner after dissolution of the firm, as declared by Comp. Laws Supp. 1922, § 7966 (35); that the storage company was aware of the litigation between the partners and should have made inquiry, and the delivery to Ward, without surrender of the receipts, was negligent and without legal authority; that such delivery deprived plaintiff of the right to enforce payment of the amount due him on an accounting, and, the court having found the sum of $1,474.50 due plaintiff from Ward, decreed that Ward pay that sum within 30 days and in default of such payment that execution issue against the storage company therefor. In his answer to the original bill defendant Ward denied the existence of the partnership alleged by plaintiff, and the circuit judge considered such denial a dissolution of the partnership from that time. The bill alleged a partnership, the answer denied it, and thereby an issue was presented, and when the court found the partnership and dissolved it by decree the relation then ended and not before. The court, in finding the partnership, . established the relation of plaintiff and Ward 'as copartners under the firm name of the Ward-MacAulay Company and such relation continued until the court, at the hearing upon plaintiff’s, bill, dissolved it by decree. Before such decree, and after the injunction above mentioned was dissolved, the storage company made delivery to Ward, a member of the bailor partnership, and Ward, by virtue of his membership in and his agency for the firm and his power as a partner, converted the partnership property to his own use. This conversion by Ward bears no relation to the delivery by the storage company if the delivery was lawful. The warehouseman held the property for the holder of the receipts. Here the holder was the bailor, the Ward-MacAulay Company. The mixers were placed in the warehouse by Ward for the firm, receipts were given Ward for the firm, Ward handed the receipts to plaintiff for the purposes of the firm, and Ward was manager for the firm. The storage company records had a notation: “Telephone call, positively don’t release any of the machines without original receipts on account of one lawsuit procedure. “Mr. Ward.” Plaintiff claims this showed notice to the storage company and required that company to make inquiry before delivery. . This overlooks the fact that Ward' gave the instruction and stated the reason therefor, and that later Ward withdrew the instruction and stated the reason no longer existed. Was the storage company put to inquiry beyond the person making the request and stating the reason and later recalling the request and stating the reason? We think not. . At least, plaintiff is in no position to assert the storage company should have accepted Ward’s first communication and have paid no attention to his second. Plaintiff invokes the provision of the uniform warehouse receipts act (2 Comp. Laws 1915, § 6616), mak ing it a crime for a warehouseman to deliver goods, in case of an outstanding and uncanceled receipt, without obtaining possession of the receipt, except the goods are sold to satisfy the warehouseman’s lien or because of perishable or hazardous nature or court order and indemnity bond to protect the warehouseman. It was not a crime for the warehouseman to deliver to the bailor, without surrender of the receipt, for the receipt had not been negotiated and was, in fact, held by the bailor. To- hold otherwise would make the letter of the statute destructive of its manifest spirit. The relation between the storage company and the bailor was under contract of bailment, and if the bailor obtained the property there can be no liability to the partnership or any member thereof. A defense good against the firm is good against all the partners constituting the firm. In Crosswell v. Lehman, Durr & Co., 54 Ala. 363 (25 Am. Rep. 684), one partner stored partnership property and took a warehouse receipt, stating it was subject to his order or the bearer of the receipt. This was done by the partner “for the purpose of forcing a. settlement of the partnership.” The other partner, without the receipt, obtained delivery of the property from the warehouseman and sold it on his own account. The partner holding the receipt brought an action of trover against the warehouseman. In holding the action could not be maintained, the court stated rules of'law applicable to the case at bar, and we quote the following from the opinion: “A partnership is an entirety; the title to its property resides not in the individual members, but in the partnership. Every partner owns the whole property, subject to the equal ownership of every other partner, and, without the consent of his associates, no one partner can convert his ownership of any part, into a separate, absolute ownership. Parsons on Part. 168. Not only does the title to partnership property reside in the partnership, but the possession also, and each partner has an equal right with his associates to possession, from which he may not be rightfully excluded, without the interference of a court of equity. Law v. Ford, 2 Paige (N. Y.), 310. Each partner may receive the property, or collect its debts, and a delivery or payment to him is a delivery or payment to the partnership. * * * “The cotton, the subject of the suit, was not the property of the plaintiff, though stored with the appellees, by him as his individual property.' * * * Nor was the possession changed — that resided in all the partners equally — the possession of one is the possession of all. When, therefore, the cotton was delivered to Pierce, it was delivered to the partnership. He had authority to receive it, and to discharge the appellees from all liability for it, as he would have had authority to receive payment of a debt due the partnership, thereby extinguishing it. * * * “The right of Pierce as a partner to the possession of the cotton, was equal to that of the appellant. A delivery to him was a delivery to the partnership, and submission to the real title and ownership. The entirety of the partnership cannot be severed. The act of one in reference to the partnership property, within the line of his right and authority, is the act of all, and neither can maintain an action in contravention of it. * * * The case is an illustration of the justice of the principle, and of the frauds to which innocent third persons, dealing with partners, would be subject if the law was otherwise. The controversy grows out of a struggle between two partners, each endeavoring to reduce to his own exclusive possession partnership property, compelling the other to sue him for a settlement of partnership affairs. In this struggle they were unmindful of the damage that they might inflict on others, strangers to their quarrels. The appellant stores the cotton in his own name — as his own property. The other partner ascertaining this fact, by stratagem and fraud, obtains possession from the depositary. The depositary, to whom no want of good faith is imputable, and who, observing a custom of trade, intended to make, and supposed he was making a proper delivery, is sought to be made liable for the delivery to the appellant’s associate, whose right to the cotton and possession was equal to and of the same character as the appellant’s. The appellant must be regarded as having with Pierce received the cotton, or the appellees must be defrauded by the person the appellant armed with the power of committing the fraud.” In this case the bailor, the partnership, could not maintain an action for loss of the goods for the bailor got the property. Plaintiff claims that, upon filing the original bill, he gave verbal notice to the storage company to withhold delivery. The circuit judge did not so find, and we cannot either. The bill was filed for the purpose of having the existence of the partnership decreed, and for dissolution thereof, and an accounting. Plaintiff is in no position to claim rights based upon a dissolution prior to the decree of the court. At the time of the delivery of the property to Ward there had been no decree of dissolution and the injunction restraining Ward from taking possession and disposing of the partnership property had been dissolved by order of the court. Under such circumstances, the bailee had a right to deliver the property to the member of the partnership who had placed it in storage and to whom the warehouse receipts had been given, in the absence of negotiation of the receipts. The fact that Ward disposed of the property and left the State was an injury to plaintiff by his partner. We think the delivery to Ward was lawful, and the storage company is not liable to respond to plaintiff. The decree against the Richards Storage Company is reversed and the supplemental bill as to it dismissed, with costs against plaintiff, and affirmed against defendant Ward. Flannigan, C. J., and Fellows, Clark, McDonald, Bird, and Sharpe, JJ., concurred. The late Justice SNOW took no part in this decision.
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Fellows, J. Defendants were convicted of violating section 15385, 3 Comp. Laws 1915. The information charged that they fraudulently embezzled and disposed of certain household goods on July 21, 1926, which they had obtained under a lease or conditional sales agreement the day before. There is one important question involved and but one meriting discussion. The goods were obtained under a lease or conditional sales agreement entered into with the Peoples Outfitting Company, a Michigan corporation. This corporation had filed a report with the secretary of State, the details of which report we shall presently consider. Defendants’ counsel .insist that this company was bound to file a report complying with section 5, chap. 2, pt. 5, Act No. 84, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 905-3 [173]), and.another report complying with section 7, Act No. 85, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 11361 [9]), as amended by Act No. 233, Pub. Acts 1923, and that it had not .done so, hence the contract was void, and that before defendants can be convicted of violating the statute above cited it must be established that there is a valid lease or conditional sales agreement. Counsel for defendants rely on Mishke v. Eddy Realty Co. (handed down October 4, 1926, but not heretofore published), post, 501, to sustain their contention. A rehearing was ordered in that case and for this reason the opinion has been withheld from publication. In the motion for rehearing the attorney general joined. At this writing the opinion on rehearing has not been prepared and the writer will, therefore, express his personal. views of the applicable law to the instant case. Upon the rehearing in the Mishke Case, it has been made to appear to the court that after the enactment of Acts Nos. 84 and 85, Pub. Acts 1921, the secretary of State, whose duty it was under both acts to prepare blanks and furnish them to corporations, consulted with and was advised by the attorney general that if one blank was prepared which embodied all the information required by both acts, it could be used, and if properly filled out and filed would be a compliance with both acts. The acts were companion acts and were approved on succeeding days. Both required the filing of reports during July and August. The blank was prepared and on the advice of the attorney general that it was a sufficient compliance with the requirements of both acts has since been used and is the only blank furnished to corporations by the secretary of State. After the amendment in 1923, the blanks used were made to comply with the amendment. A copy of the blank is before us. It requires to be furnished in substance all information that is required to be furnished by both acts. While in the beginning it recites that it is filed under Act No. 85, the 9th instruction is as follows: “The filing of this report will also comply with the requirements of chapter 2, part 5, Act No. 84, Pub. Acts 1921, as to profit corporations.” The reports made on this blank are in duplicate, one for the secretary of State, and one is sent to the county clerk. It was upon this blank that the Peoples Outfitting Company each year made its report. I find no difficulty in agreeing that the purpose of requiring information is different in the two acts. The purpose in Act No. 84 is to furnish information to the public dealing with corporations; the purpose in Act No. 85 to enable the secretary of State to compute the tax, and I find no difficulty in agreeing that corporations are required to furnish the information required by both acts. But if all the information is embodied in one report, I see no necessity of filing two papers instead of one. Nor do I think we should overthrow a construction indulged in for five or six years by the department administering the law, a construction which had the approval of the chief law officer of the State, especially when so to do would render invalid every contract made by over 16,000 Michigan corporations covering a period of years, and submit them and their officers to untold penalties without benefiting any one except ■the man who shirks the performance of his contract or the man who seeks to escape merited punishment for a violation of our criminal laws on technical grounds. I think the Peoples Outfitting Company was not an outlaw when it entered into the agreement, that the agreement was a valid one, and that the conviction should be affirmed. North, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Chief Justice Flannigan and the late Justice Bird took no part in this decision.
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Sharpe, J. The plaintiff is engaged in the manufacture of pulverized limestone for agricultural purposes and as an asphalt filler. The defendant manufactures mills or machines for that purpose. On April 24, 1924, a contract in writing was entered into for the purchase by plaintiff of one of defendant’s mills described as a “4' x 8' Airswept Tube Mill,” at the price of $6,268. It was delivered on or about June 1st, and the first payment made thereon. On June 29, 1925, there was default in payment, and defendant brought replevin and recovered possession. On July 1, 1925, plaintiff brought this action for damages claimed to have been suffered by it by reason of false representations alleged to have been made to it which induced the purchase. It had verdict for $9,051.50. On defendant’s motion for a new trial, the court required plaintiff to remit the sum of $2,500, and, on this being done, a judgment was entered in its favor for the balance of $6,551.50. Defendant seeks review by writ of error. Counsel are agreed that the measure of plaintiff’s damages, if any, was the difference between the value, of the mill had it been as represented and its value when delivered to plaintiff. The trial court so instructed the jury. The representations on which plaintiff claims it relied are thus stated by its counsel: “The representations made were that the mill manufactured by the defendant was suitable to plaintiff’s business; that it was designed and equipped to manufacture at a single operation asphalt filler and. agricultural limestone; that defendant’s mill was capable of producing four tons or more per hour of the filler of the required fineness, when not engaged in providing chips, and was capable of producing 3 and 8/10 tons per hour of the filler of the required fineness.” It offered proof that “the greatest amount per hour that it would produce was about a ton and a half,” and its president, Lance Hanley, was permitted to testify, over defendant’s objection, that he had contracts under which he might have sold the larger output, and that there “would have been a profit of $6,450 for the period that these orders covered.” He was then asked: “On the business of the output that you actually received what was the loss?” and was permitted, over objection, to answer: “The loss on filling these orders was $2,601.50.” It will be observed that the verdict was exactly the sum of these two amounts. Counsel for plaintiff concede that it was not entitled to recover for loss of profits, but insist that the evidence was admissible and might be considered by the jury in fixing the damages to which it was entitled as above stated. That the jury either did not understand the instructions of the court or failed to follow them is apparent. In personal injury cases, where proof cannot be submitted of the damages which should be allowed for pain and suffering, both the trial court and this court have sought to avoid a retrial by permitting plaintiffs to accept a lesser sum than that found by the jury, when it is clearly excessive, and entering judgment therefor. But this case does not belong to that class. The witness, an engineer of experience, might have been able to express an intelligent opinion, based upon the output which was promised and that which could be had, as to the difference in value of a mill producing the former and the latter. The testimony of manufacturers of other mills could doubtless have been secured and definite information submitted to the jury to aid them in their determination. It is true, as claimed by plaintiff’s counsel, that a “wrongdoer may not escape liability because of the impossibility to ascertain the extent of his wrong.” But in all cases where the damage is susceptible of definite proof or of estimation by those having knowledge, it is the duty of the plaintiff to submit such- proof to the jury to aid them in arriving at a verdict which must not be based on pure speculation. The judgment rendered was more than $200 in excess of the cost price of the mill. It surely had some market value when delivered to plaintiff. The judgment is reversed and set aside, with costs to defendant, and a new trial ordered. Flannigan, C. J., and North, Fellows, Wiest, Clark, McDonald, and Bird, JJ., concurred.
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North, J. The plaintiff in this case filed a bill by which he sought to enjoin the defendant from violating building restrictions covering a lot owned by him in Robert Oakman’s Clements avenue subdivision in the city of Detroit, Michigan. After hearing in the circuit, a decree was entered in favor of the plaintiff. The defendant has appealed. The building restrictions pertaining to this subdivision were not contained in the recorded plat; but this record discloses they were uniformly included by the proprietor of the plat in the conveyance of each lot, and at the time of this litigation the addition was completely sold out. Among the restrictions pertinent to defendant’s property is the provision that “said lots shall be used solely for residence purposes.” It is conceded that this restriction has been uniformly observed throughout this addition; although it is claimed the plaintiff has tolerated one rather slight infraction of a like restriction in the use of property located a block north of defendant’s lot and in one of plaintiff’s adjoining additions. The defendant owns lot number one of this subdivision, and his lot fronts on Clements avenue at the corner of Twelfth street. About six months before this bill was filed the defendant constructed a small wooden store building on the rear of his lot. A little later he began to construct a two-story brick store' building on another portion of the same lot, and thereupon plaintiff filed his bill of complaint. These stores front on Twelfth street. It is the claim of the defendant: (1) That he is a bona fide purchaser of his lot without notice or knowledge of the restriction in question. (2) That the plaintiff acquiesced in the building of the first store and thereby is estopped from enforcing the restriction. (3) That the plaintiff has no interest in the subject-matter of the suit. (4) And that there has been such a change of condition in the locality as nullifies this particular restriction. A review of the record discloses that the defendant cannot successfully claim a lack of notice or knowledge of this restriction. On the first of April, 1916, the plaintiff as vendor entered into1 a land contract with the Greenfield Improvement & Sales Company covering this lot. This contract contained the restriction relied upon by the plaintiff. On July 26, 1916, the Greenfield Improvement & Sales Company gave a subcontract to some Polish people, and these people very shortly gave a third contract to the defendant. Neither of the two contracts last above mentioned contained the restrictive clause. The Greenfield Improvement & Sales Company contract was paid in full and the plaintiff gave a deed to the sales company in fulfilment of its contract of April 1, 1916. This deed contained the restriction. About this time the defendant obtained by assignment the contract held by the Polish people, and, after making the balance of the payments due on this contract, the defendant received a deed on the 1st day of February, 1922. Prior to this date, the Greenfield Improvement & Sales Company had deeded to the defendant’s grantor, the Metropolitan Investment Company. No restriction was placed in defendant’s deed; but, notwithstanding this, it is obvious that the defendant cannot successfully claim he did not have notice of the restriction. He indulged in the uncertainty of contracting with parties who at the time were not owners of these premises, and in fact who did not even hold a contract by assignment or otherwise to which the owner of the fee was a party. In doing this, the defendant as a vendee was dealing at his peril. Whatever rights he had existed by virtue of and were based upon the contract given by the plaintiff to the Greenfield Improvement & Sales Company or the deed subsequently given in fulfilment of that contract. The restriction relied upon was embodied in each of these • instruments. It was, therefore, a part of the defendant’s chain of title and was binding -upon him. In Berry on Restrictions, p. 444, the rule is stated as follows: “Where a restriction is incorporated in a deed which constitutes a muniment of title to the land, the law conclusively charges each subsequent holder of the title with notice of it. Hayes v. Railroad Co., 51 N. J. Eq. 345 (27 Atl. 648). And this is true although such instrument is not recorded, and such person has no actual knowledge of its provisions. Stees v. Kranz, 32 Minn. 313 (20 N. W. 241).” One cannot avoid or nullify a valid restriction by blindly contracting to purchase restricted land from one who is not the owner of the fee, but, instead, is only a holder of contract rights through a prior contract in which the restriction is specifically set forth. This restriction unquestionably runs with the land. Schadt v. Brill, 173 Mich. 647 (45 L. R. A. [N. S.] 726). There was no privity of contract between the plaintiff and the defendant; and, if the latter has been damaged, he must seek his remedy against the one who contracted to convey to him this land without restriction. The remaining defenses, to which reference is above made, are without merit. - While the record discloses that five or six months before this bill was filed the defendant constructed a small frame building on the Twelfth street side of this lot and thereafter used it as a store, there is- no testimony showing that plaintiff had any knowledge of the intended use of this building during its course of construction. This phase of the case is not such as could be held to establish a waiver by or an estoppel against the plaintiff. The attitude of the defendant is indicated by the fact that after this litigation was instituted he persisted in constructing the brick store building on this lot in which building he has invested a substantial sum of money; but no equity can be urged in his behalf on this account. The plaintiff not only has an interest as a vendor in at least three contracts covering lots in this subdivision on which the purchase price is not fully paid, but he is the owner of extensive properties in adjoining additions incident toi which identical restrictions are being enforced. Therefore, it cannot be said he is without interest in the subject-matter of this suit. The proof does not sustain the claim that there is such a change in the character of the property in this locality as would justify this court in refusing to enforce the restriction in the instant case. The decree of the lower court reserves to the defendant the right to remodel these buildings for residence purposes, and to petition for modification of the decree in event the locality ceases to be a residence district. The decree is affirmed, with costs to the appellee. Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Chief Justice Flannigan and the late Justice Bird took no part in this decision.
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Sharpe, C. J. In this suit, brought to foreclose a mortgage executed to plaintiff as trustee to secure a bond issue, and in which it was appointed a receiver of the property, the trial court allowed it for “expenses for attorneys’ fees” the sum of $1,500. The defendant Lena Solomon, a second mortgagee, appeals from such allowance. This court has repeatedly held that a specified sum stipulated in a mortgage to be chargeable as attorneys’ fees on foreclosure is not enforceable. Curtis v. Mueller, 184 Mich. 148, and cases cited. This mortgage provided: “Upon sale being made by any of the methods in this indenture provided for, the trustee shall first take from the proceeds thereof all costs, disbursements, and expenses of such proceedings, as well as the expenses, disbursements, and reasonable compensations of the trustee and of its counsel, and shall apply the remainder as follows: “(1) To the payment of all taxes, insurance, assessments, rates, charges, labor or mechanic’s liens due and unpaid. “ (2) To the payment of all the principal and interest of the bonds then outstanding in full if such proceeds be sufficient, but if not, then pro rata, without preference or priority of one bond over another, or of interest over principal. “(3) To the pro rata payment of any income tax due the holder or holders of any bond or bonds or interest coupons, in accordance with the provisions hereinbefore set forth. “(4) The payment of the surplus, if any, to the mortgagor, his heirs, executors, administrators or assigns.” The mortgagor thereby agreed that the plaintiff should deduct the reasonable compensation of its attorneys, if foreclosure be had, before the surplus, if any, should be payable to him. The appellant is in no better position to attack this allowance than the mortgagor would be. No claim is made that the amount allowed is not a reasonable compensation for the service rendered. This court has sustained such allowances when contested in Union Trust Co. v. Railway, 127 Mich. 252, 269, and in Union Trust Co. v. Amusement Co., 163 Mich. 687. There is no reason, apparent to us, why we should not do so in this case. The decree is affirmed, with costs to appellee against appellant. Bird, Flannigan, Fellows, Wiest, Clark, and McDonald, JJ., concurred. The late Justice Snow took no part in this decision.
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Bird, J. Plaintiff brought this action to recover damages alleged to have been suffered through negligence of the board,' of county road commissioners of Clinton county causing costly delay in the execution by him of a contract for construction of a State reward road in that county. His declaration is based on tort, in a plea of trespass on the case, alleging actionable negligence on the part of the board of county road commissioners in not sooner taking proper steps to relieve the contract from an injunction against it issued by the circuit court of Clinton county, in chancery, restraining the board from all further proceedings under the contract, after signing it. Construction under said contract was authorized by and undertaken pursuant to provisions of Act No. 59, Pub. Acts 1915 (1 Comp. Laws 1915, § 4671 et seq), known as the “Covert act.” No question is raised as to the regularity of the proceedings leading up to and awarding the contract to plaintiff under provisions of that statute. The amount of his bid was $27,000. It was accepted and contract awarded to him as the lowest bidder on March 30, 1917. Before the parties had time to formally close the contract in writing an injunction restraining the board of county road commissioners from entering into it or taking any further proceedings in relation thereto was issued and served under a bill of complaint filed at the instance of certain citizens and taxpayers of the county, alleging invalidity of ■ the proceedings, chiefly on the ground that the Covert act was unconstitutional. Plaintiff was not made a party to said suit but was at once advised of it.- A motion was promptly made by defendants for dismissal of said injunction and the same was heard on the evening of March 31, 1917. After hearing counsel for the respective sides, the court made an order modifying the injunction by allowing the board of county road commissioners to sign the proposed contract for construction of the road, but staying it from all further proceedings under the contract, until further order of the court. At this hearing plaintiff and his brother, a practicing attorney of 20 years’ standing who became his bondsman under the contract, were present and fully informed of the nature of the so modified restraining order. It was then indorsed by plaintiff over his signature as follows: “Adelbert E. Chase, the contractor in said contract, agrees to abide the above order.” The parties thereupon executed the contract, dated March 31, 1917, and a bond in the sum of $3,000 for its proper execution signed by plaintiff and his brother as bondsman was accepted and filed. Defendants took prompt steps to bring the injunction suit to issue and hearing. They appeared generally, answered issuably, and the board of county road commissioners filed a request, on April 20, 1917, that the case be placed on the calendar for hearing at the next ensuing term. Following docket entries in the case only show a substitution of attorneys, on January 26, 1918, and a stipulation dismissing the bill of complaint filed March 11, 1918. Plaintiff thereafter took steps to construct the road and began work early in April, 1918, about the 11th, as he testifies, without complaint or protest so far as appears. In November, 1919, when the contract was somewhere near half performed, he applied to the board of county road commissioners for an increase of compensation under his contract, on the ground that entry of this country into the World War subsequent to its execution had resulted in disturbed economic conditions, scarcity of labor, increase of wages, and cost of material. After consulting with the attorney general’s office, the commission advised him it could not comply with his request. Plaintiff thereafter completed the road according to the terms of his contract and was paid by the county the full amount of the contract price. Based upon such situation, the charge of actionable tort in plaintiff’s declaration is covered by the following allegations: “It was the duty of the defendant, said county of Clinton, by its board of supervisors and the board of county road commissioners, and all other parties acting as agents of said county, to move the court to a reasonably speedy trial and decree in said injunction matter, and do all other acts and things on their part respectively to be performed, to put this plaintiff in possession of the premises of said proposed road, thereby reasonably enabling him to go1 speedily forward with said construction to finish the same within the time limited by said contract, to wit: the first day of December, 1918; and whereas the said board of county road commissioners and board of supervisors of said county did not reasonably or seasonably move this court nor did they* take any steps or action on their part, or either of them, to move the court until the 11th day of March, 1918. * * * “Plaintiff was unnecessarily delayed in the construction of said road, being compelled without fault or negligence on plaintiff’s part to construct the same during the abnormally high price period of labor, material, and all matters entering into the construction of said State reward road in the years 1918, 1919, and 1920, at a greatly increased and advanced cost of labor, materials and loss of time.” Defendants pleaded the general issue and the 'board of road commissioners gave notice* of special defenses. The case was heard before the court without a jury. The trial court, being of opinion no actionable tort negligence was shown, rendered a judgment for defendants. Plaintiff’s testimony is largely devoted to showing that, after the fall of 1917, financial conditions were so disturbed by the war that costs of everything connected with his contract greatly increased, with unavoidable delays in securing material and labor, and instead of making, as he could have done had the delay and war not intervened, a profit on his contract of over $7,000, he completed it later at an actual cost to him of some $7,000 more than the contract price. It was contended for defendants that the contract could have been performed after the time plaintiff commenced it for $2,000 less than the contract price. The evidence is convincing that actual cost of con structing the highway was greatly enhanced by advent of war conditions; but having found no actionable tort shown, the trial court did not pass upon that question of fact, and it is not before us. The agreement which the parties signed by permission of the court was evidently prepared on a filled out printed form for State highway construction contracts, as interspersed parenthetical directions and numerous subheading of sections with familiar elaboration of negative and positive provisions indicate. In it, as plaintiff contends, time is made of the essence of the contract. To that point he especially stresses, as showing defendants first breached it, a provision in paragraph 9, under the heading, “Liabilities of Contractors,” requiring, amongst other things, that the contractor— “commence and prosecute the work on the road at such points as he may be directed to by the board of county road commissioners within ten days from and after signing the contract, and shall prosecute the work rapidly and continuously unless delayed by orders from the board of county road commissioners. He further agrees to-complete the same on or before the first day of December, 1918.” A money penalty is provided for his failure to complete the contract within that time; but the board, on recommendation of the officer in charge, is authorized to extend the time limit, “giving satisfactory reasons for such extension.” It is not for us to reason, or wonder, why the court permitted the defendant board to sign this unmodified' contract while steadfastly restraining it under a penalty from any further steps in relation thereto, or why any one would wish to sign it under the circumstances shown; but taking the provision plaintiff appeals to as it reads, under the heading quoted, it can well be questioned whether it imperatively imposes a duty or any liability on defendants. In it the two parties are distinguished as “contractor” and “the board of county road commissioners.” While, in a strict sense, both parties to a contract are contractors, yet in a general sense, as a commonly recognized, reserved designation, a contractor is one who enters into a contract to do a special piece of work for another according to price, specifications, and terms agreed upon. McCarthy v. Second Parish of Portland, 71 Me. 318, 322; vide, also, “contractor”* in Winfield on Adjudged Words and Phrases. Furthermore, plaintiff with full knowledge of the court’s refusal to further modify the injunction after a special hearing upon that question, agreed in writing to abide by the order as made. Equally, if not more, interested in having the injunction released, he could have at any time intervened as a party to that suit and pressed it for a speedier determination if he so saw fit. Arguments in plaintiff’s brief as to the effect of this country engaging in war subsequent to the parties’ signing this contract are of scant legal significance. No doctrine of frustrated adventure by reason of war is involved here. The war did not make performance of the contract by him impossible, for he fully performed it and was paid the full contract price therefor. Economic unprofitableness is not the equivalent of impossibility of performance. Subsequent events, which in the nature of things do not render performance impossible but only render it more difficult, burdensome, or expensive, will not operate to relieve the contractor. Columbus Railway, Power & Light Co. v. City of Columbus, 249 U. S. 399 (39 Sup. Ct. 349, 6 A. L. R. 1648). Vide, also, 6 R. C. L. p. 977. This is text-book law equally applicable in time of war or peace. Plaintiff’s action is founded on a charged tort, consisting of actionable negligence of the board in failing to sooner secure release from a restraining order against it imposed by the court in an injunction suit by third parties. It is shown that defendants acted promptly and energetically by preliminary proceedings to obtain relief from the injunction, and failing in that effort, promptly pleaded issuably, noticing the case for hearing at the next ensuing term. There is no proof or presumption they were not ready and willing to try the case then. There are too many possibilities as to causes of delay in a pending chancery suit to impute it without proof to actionable negligence of one of the parties. That suit involved the constitutionality of an important highway law of general application throughout the State, and had it been heard at the next ensuing summer term,- it would in all probability have been appealed, as cases involving constitutional questions usually are, to this court for final determination. With unimpeded expedition it could not have been submitted to this court until its next ensuing October term. Highway construction work is in its nature mainly seasonal, and claimed delay during winter months of scant importance. In the meantime constitutionality of the Covert act was sustained by this court in other litigation which came before it, and the injunction suit in question here was dismissed by stipulation before time for active road work the next spring. When plaintiff began performance of his contract, about April 11, 1918, this country had been for over a year under the disturbed conditions of a state of war, declared April 6, 1917. What he might have legally done during that year in avoidance of his contract and ensuing losses is not before us. What he did do was to proceed with and complete performance of it, receive the full contract price therefor and then bring this action in tort for damages. A fundamental distinction of torts as applied to legal actions is thus stated in 26 R. C. L. p. 756, under the heading, “Definitions and Distinctions:” “Actions ex delicto and actions ex contractu are never mingled in the law. Actions for the redress of torts always sound in damages. In its widest signification, ‘trespass’ means any violation of law. In its most restricted sense, it signifies an injury intentionally inflicted by force either on the person or property of another.” Following this, it is. pointed out how liability for tort may grow out of or in connection with a contract, and the subject is elaborated under the titles, “Basis of Liability, Generally,” and “Source of Duty; Breach of Contract;” where the principle is stated, on page 758, under which plaintiff apparently planted this tort action, as follows: “Whenever a negligent breach of a contract is also a violation of a common-law duty, an action ex delicto will lie. Accompanying every contract is a common-law duty to perform the thing agreed to be done with care, skill, reasonable expediency, and faithfulness, and a negligent failure to observe any of these conditions is a tort, as well as a breach of the contract. If the transaction complained of had its origin in a contract which placed the parties in such a relation that in attempting to perform the promised service, the tort was committed, then the breach of the contract is not the gravamen of the suit. The contract in such case is mere inducement, creating the state of things which furnishes the occasion of the tort, and in all such cases the remedy is an action on the case. Based on the principle above indicated, the firmly established rule is that for injuries resulting from the unskilful or otherwise negligent performance of a thing agreed to be done, an action ex delicto will lie, notwithstanding the act complained of would also be ground for an action ex contractu.” But in concluding the paragraph, the limitation of that rule is recognized as follows: “A distinction is made, however, in case of nonfeasance in performance of a. contract, it being held that an action sounding in tort cannot be founded thereon.” This so-called “important distinction” is reviewed with citations in 12 L. R. A. (N. S.) 929 (annotations). Amongst other authorities cited is Tuttle v. Gilbert Manfg. Co., 145 Mass. 169 (13 N. E. 465), which squarely states the distinction and clearly explains the reason for it. The most that plaintiff appears to claim is negligent nonfeasance of the board in failure to more fully observe an implied contractual obligation to more promptly secure dismissal of the court’s restraining order against it, and, as we view it, his proofs fail to sustain the burden of proof even to that extent. We discover no reason to disturb the conclusion of the trial court that no actionable negligence is shown. The judgment will stand affirmed. Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. The late Justice Snow and Justice Steere took no part in this decision.
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North, J. This suit was instituted in the circuit court of Wayne county, in chancery, for the purpose of restraining the defendants from violating certain building restrictions. Before the hearing Mandikash and wife had secured a deed from the Central States Finance Corporation and the suit was dismissed as to that defendant. The relief sought was granted against the defendants Mandikash and they have appealed. Greenfield Park, a subdivision, consisting of 812 lots, is a part of the city of Detroit. It was opened in 1915, and at the time this litigation arose all of the lots had been sold. No restrictions were embodied in the recorded plat; but it is conceded by the defendants that the uniform restrictions had been embodied in each and every conveyance given by the original owner of the plat. These restrictions were of record in the title to lot 209 of this subdivision before these defendants entered into a contract to purchase it on January 26, 1927. It is the claim of the defendants that the restrictions pertain only to the character of the building that may be erected on any particular site, but that they do not limit the use which may be made of such building. So far as they are pertinent here, these restrictions are as follows: “The hereinafter specified covenants and restrictions shall run with the land herein described and shall be chargeable thereon and shall bind each and every purchaser thereof, his heirs, personal representatives and assigns, and each restriction shall continue in force until January 1, 1944, and no longer, to wit: “Restrictions: No structure shall be built upon any lot in said Greenfield Park subdivision, except for dwelling house purposes only, having at least two stories in height and appurtenant outbuildings or an approved type of bungalow. * * * On lots fronting on Wisconsin and Ohio avenues, nothing allowed but single houses to cost not less than $2,000, double houses, duplex or two flat to cost not less than $4,000. * * * Lots fronting on Grand River avenue may be used for business purposes.” Defendants’ lot No. 209 faces on Wisconsin avenue, and previous to the time they purchased a seven-room dwelling house had been erected thereon. Soon after purchasing they undertook to operate a small store in a garage on the premises, but later the stock of goods was transferred to the front room in the dwelling. The stock consisted of groceries, canned goods, candies, soft drinks, papers, school supplies, etc. One of the large public schools of Detroit is located immediately across the street, and evidently the defendants were catering largely to the school trade. Owners of other parcels of land in this subdivision very promptly filed this bill. It appears from the record that this subdivision extends northerly from Grand River avenue and is substantially one-half a mile in length north and south and five blocks in width east and west. There are no places of business in this addition except on Grand'River avenue, where there is business frontage. The question for determination is this: Are the re strictions such as applied only to the character of the buildings to be erected on the lots in this subdivision,as is contended by defendants, or do they also control the use which may be made of the buildings? In placing a proper construction upon these restrictions, if there can be said to be any doubt about their exact meaning, we must have in mind the subdivider’s intention and purpose. Weiss v. Zack, 237 Mich. 10. The restrictions in question must be read as a whole and construed in the light of the. general plan under which the restrictive district was platted and developed. Tabern v. Gates, 231 Mich. 581. In light of the fact that these restrictions have been uniformly embodied by the subdivider in his conveyance of each lot, and the admission of these defendants that the whole development of the addition has been in conformity to the restrictions, it would be a perversion of the English language to hold that the restrictions applied only as “building restrictions” and not as restrictions governing the use of the property. It would indeed be useless to provide that “no structure shall be built on any lot except for dwelling house purposes” and then permit it to be used forthwith as a store or factory. The restriction applicable to the very street on which defendants’ property is located is clearly intended to confine it to the better class of residence property, since it limits the character of residences which may be erected thereon to single houses, double houses, duplex or two-family flats, and also fixes a minimum cost. In addition to this, we find an express provision that the “lots fronting on Grand River avenue may be used for business purposes,” the plain inference being that the lots as to which this provision does not apply shall not be used for business purposes. We are of the opinion that the intention of the subdivider is easily ascertained from the language uniformly used in the instruments by which he conveyed the lots in the subdivision. The restrictions have been enforced, and both the development and use of the property have conformed thereto. The provision must be held to be a restriction controlling the use, as well as the character of building to be erected. Any other construction deprives the provision of all beneficial force and would be a mere evasion. Dorr v. Harrahan, 101 Mass. 531 (3 Am. Rep. 398). Decent regard for the rights of other owners as well as the mandate of law require the defendants to observe the restriction as to the use of their dwelling. The decree of the lower court is affirmed, with costs to the appellee. Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Flannigan, C. J., did not sit. The late Justice Bird took no part in this decision.
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Clark, J. The bill was filed to correct a deed," alleging a mutual mistake in that certain sewer taxes should have been recited and excepted in the warranty-clause. Plaintiffs, husband and wife, had decree. Defendants have appealed. The question is one of fact arising upon a flat contradiction in testimony. Evidence of plaintiffs is to the effect that defendants were to pay such tax and that this matter was inadvertently omitted in making the deed. Evidence of defendants is to the effect that plaintiffs were to pay it and that there was no mistake in that regard. Evidence of value is in equally flat contradiction. Circumstances aid decision somewhat. Defendant William Wallace gave unsatisfactory testimony and was admonished by the court, in effect, to answer certain questions frankly and directly. The taxes were more than $5,000. Plaintiffs’ equity in the property — the difference between the sale price and the amount due from them as vendees in the land contract — was much less than the amount of the tax. The trial judge had the advantage of seeing the witnesses and hearing their testimony. We are not persuaded that his decision should be disturbed. Decree affirmed, with costs to plaintiffs. Flannigan, C. J., and Fellows,Wiest, McDonald, Bird, and Sharpe, JJ., concurred. The late Justice SNOW took no part in this decision.
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Sharpe, J. The defendant, engaged in selling lumber on commission at Big Rapids, in this State, sent plaintiff, a wholesale lumber company, located at Louisville, Mississippi, two orders, each for a' car load, to be shipped to the Michigan Box Company at Muskegon. Shipment was made pursuant thereto. On May 21, 1926, and before payment had been made on these shipments, defendant sent plaintiff another order for a car load shipment to the same party. On its receipt, plaintiff wired defendant.: “Reference Michigan Box Company their rating not satisfactory for further credit. Prefer you place elsewhere unless you guarantee account. Advise.” On the next day defendant in reply wired plaintiff: “Ship car Michigan Box we will guarantee payment.” The box company failed to make payment for any of the lumber shipped, and plaintiff in this action seeks to recover the amount due it for the three car loads. It claims that the two telegrams constitute a guaranty of payment of its entire claim against the box company. The trial court limited the guaranty to the last car shipped. He deducted certain commissions admittedly due the defendant, and directed a verdict in plaintiff’s favor for the' difference, $268.82. Plain tiff seeks review of the judgment entered by writ of error. Plaintiff had shipped the two car loads relying on the ability of the box company to pay. When a third was ordered, it did not feel that the box company’s rating justified “further credit.” Its message so advised defendant. Defendant had assumed no obligation as to the two car loads. It expressed its willingness to do so as to the third car load, and said, “We will guarantee payment.” Plaintiff insists that the word “payment” must be coupled up with the word “account” in its message. We cannot so conclude. It clearly did not refer to an account on plaintiff’s books against the box company because the third car load had not then been charged thereon. It seems clear to us that defendant had a right to assume from the language of the telegrafii that plaintiff would not ship the third car load unless defendant guaranteed that the box company would pay therefor, and that defendant’s obligation was limited thereto. As the rights and obligations of the parties were dependent upon the construction to be given to the language contained in the messages, there was no question of fact to submit to the jury. The judgment is affirmed. North, Fellows, Wiest, Clark, and McDonald, JJ., concurred. Flannigan, C. J., did not sit. The late Justice Bird took no part in this decision.
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Fellows, J. After some preliminary discussion, not necessary to detail, plaintiff agreed with the agent of defendant to purchase on contract three lots in Riverview subdivision. Defendant prepared in dupli cate two contracts, one for one lot and one for two. Defendant’s officers signed the contracts but they were not acknowledged before a notary public. Defendant’s agent took them toi plaintiffs office. Plaintiff desired that the contracts be “notarized,” as it is spoken of in the record, so that they might be recorded, and the testimony shows that the agent of defendant promised before plaintiff signed the four papers to have that done. Plaintiff signed all the contracts, made the down payment and retained two of the contracts in his possession. It may be fairly inferred that he was to exchange these for the ones which bore the acknowledgment later to be made. There was considerable delay in sending to plaintiff the contracts duly acknowledged, although they were sent after he had indicated that he did not regard himself bound by the contracts. Plaintiff brings this action to recover the money paid. He bases his claimed right of recovery on this theory: That the delivery of the contracts to the defendant’s agent was a delivery to such agent in escrow; that the contracts were not to become binding until the acknowledgments were indorsed on them; and that, therefore, there were no binding contracts in writing to take the transaction out of the statute of frauds. The case was tried before the court without a jury and written findings of fact and conclusions of law were filed. The trial judge found that the minds of the parties met in the written contracts; that valid contracts of purchase and sale were then made, and judgment was entered for defendant. It is somewhat difficult to follow the contention that the delivery to the agent, who was acting for his principal, was not a delivery to such principal. But we need not decide the question. Plaintiff’s testimony tended to establish a conditional delivery, but there was testimony in the case from which the court was justified in finding that the deal was then closed and plaintiff accepted the oral promise of the agent, who was an old classmate of his, to have the writings put in shape for record. The testimony clearly establishes that the terms of the sale had all been agreed upon by the parties and there is no claim that the written contracts did not embody them. While the contracts required acknowledgment to entitle them to record, and defendant could have avoided this lawsuit by promptly" and courteously responding to plaintiff’s request, acknowledgment was not essential to their validity, and we entertain no doubt that plaintiff would be entitled to maintain a suit for their specific performance upon the evidence in this record. But it is urged the contracts were not offered in evidence. It is true they were not formally offered in evidence. They were marked as exhibits, identified, and handed up to the court. Plaintiff’s testimony given without objection established the execution of the written contracts and no point is made that they did not comply with the statute of frauds if they were binding. We have pointed out that there was testimony establishing their binding force. The point is without merit. The findings support the judgment and the evidence supports the findings. They are not against its clear weight. The judgment will be affirmed. Sharpe, C. J., and Bird, Flannigan, Wiest, Clark, and McDonald, JJ., concurred. The late Justice Snow took no part in this decision.'
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Wiest, J. John Czarnecki and Frank Nowaczyk were jointly charged with the crime of robbery while armed, and, upon separate trials before different judges, were convicted, and prosecute review by writs of error. We have the record of the trial of Czarnecki, before Judge Cotter, but no record of the trial of Nowaczyk, before Judge Van Zile. It is stated that the stenographer’s record of the Nowaczyk trial is lost, and it is agreed that the disposition of the Czarnecki case shall determine the- Nowaczyk case. Two points are urged, one of which may be applicable to both cases, but the other, relative to proof of identification, manifestly could not apply to both. We do not approve of the practice indulged, for, even though the stenographer’s minutes are lost, a record for review could be made. Inasmuch as we are satisfied that the convictions should be affirmed we will state our reasons in the Czarnecki case and let the same apply to the Nowaczyk case. . It is claimed that the identification of Czarnecki by his victims was insufficient to warrant conviction. The robbery was in a place of business about noon on a Saturday and the next day and on Monday following four of the victims, who were made to lie on the floor by one of the robbers, and who had looked him in the face, positively identified Czarnecki as the robber. The defense was alibi. At the police station the witnesses mentioned picked out defendant from among several other persons. The weight to be given the testimony of the witnesses, who positively identified defendant as the robber, who compelled them, at the point of an automatic gun, to lie face down on the floor, was for the jury. We have in mind the care to be exercised in considering such testimony, but feel that the argument presented here for rejection of such testimony should have been and undoubtedly was urged to the jury. The proofs on the subject fully supported the verdict of the jury. After conviction of defendant a convict in the Mar quette prison, under sentence of from 15 to 80 years for the crime of robbery armed, made an affidavit that he and two others, whose names he declined to divulge, committed the robbery of which Czarnecki had been convicted, and that defendant had nothing to do with the crime. Upon such affidavit defendant moved for a new trial on the ground of newly-discovered evidence. Upon filing the affidavit an officer went to the Marquette prison to interview the affiant, and, upon the hearing of the motion, gave testimony in court and disclosed that the affiant was unable to locate the entrance to the building where the robbery took place. The entrance to the building was described at the trial as located at the side and reached by a narrow way. The officer also testified that the convict’s answers to questions were very evasive. The convict, in 'his affidavit, stated that he was moved by a spirit of fair play. Assuming that a convict may be so moved, we are not impressed that the affiant was so motivated, and we are no more impressed by the affidavit than was the trial judge. We think the trial judge exercised sound discretion in declining to be guided by the affidavit. The convictions in both cases are affirmed. North, Fellows, Clark, McDonald, and Sharpe, JJ., concurred. Chief Justice Flannigan and the late Justice Bird took no part in this decision.
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Sharpe, J. On February 10, 1926, plaintiff obtained a decree of divorce from the defendant, in which she was awarded the custody of their two minor children, aged six and seven years, respectively. The defendant, who did not appear, although personally served, was ordered to pay seven dollars per week for their support and maintenance until the further order of the court. There being default in payment, a writ of attachment was issued, on which he was brought before the court on February 16, 1927. Soon thereafter, he filed a petition for a modification of the decree so as to relieve him from making such payments. He appeals from an order dismissing his petition and finding him guilty of contempt of court. His claimed right to modification is based upon an alleged agreement, a copy of which is annexed to the petition, executed before the- decree was signed, in which plaintiff agreed that the weekly payments should cease upon her remarriage. That both parties have remarried is admitted. It appears that such a provision was inserted in the draft of the decree presented to the trial court, but he declined to so provide, and the decree as signed was submitted to and apparently approved of by the defendant or his counsel. In disposing of the matter, the trial court said: “The law of this State is settled that the parents may not bargain away the children’s welfare, the children’s rights, that the court may always do what seems reasonable and necessary to protect the children’s r-ights, and, having in mind that policy or rule, the court made a special effort in this particular case to see to it that these parents should not do that very thing. They attempted to do it then. Failing in the attempt then, they are now attempting to do it, or one of them is attempting now to circumvent an order-of the court that was made for the. purpose of protecting the welfare of these children. Well, the court refused to permit them to do it and the court must necessarily refuse to permit them to do it now.” With this statement we heartily agree. The order entered is affirmed, with costs to plaintiff. North, Fellows, Wiest, Clark, and McDonald, JJ., concurred. Chief Justice Flannigan and the late Justice Bird took no part in this decision.
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North, J. This suit was brought on a life insurance policy for $1,000 by which plaintiff’s husband was the insured. He died of lobar pneumonia April 6, 1924. Under the plea of general issue the defendant gave notice it claimed as a special defense that the policy, which had lapsed, was not reinstated during the good health of the insured. The case was tried by jury and a verdict rendered in favor of the plaintiff. At the close of the proofs the defendant moved for a directed verdict in its favor. The trial judge reserved his decision under the statute. After verdict the defendant made a motion for judgment non obstante veredicto. This was denied. Each of these motions was based primarily upon defendant’s contention that the undisputed testimony in the case established the fact that the insured was not in good health at the time the application for reinstatement was approved. This policy was issued on the 22d day of November, 1922. The premium was to be paid in equal quarterly installments of $8.17 each. The quarterly premium which fell due February 22, 1924, was not paid, and after 30 days the policy lapsed. On the 1st day of April, 1924, an application for reinstatement was made in behalf of the insured and incident to this the past-due quarterly premium of $8.17 was paid to the company’s Detroit agent. The application for reinstatement contained the following provision: “Said policy shall not be renewed or go into effect until this certificate is approved by said company at its home office during my lifetime and continuance in good health.” This application for reinstatement was forwarded to the insurance company’s office in Chicago, and the undisputed proofs show that it was approved there by the proper official some time after 2 o’clock on the afternoon of April 4, 1924. As above indicated, the defendant’s claim is that it appears from the undis pitted facts the insured was not in good health at the time of the approval. The plaintiff asserts this question was properly left to the jury by the trial judge. This presents the controlling question for determination. The defendant tendered repayment of the above-mentioned quarterly premium. There is no occasion for quoting the testimony in full, but in so far as it relates to the condition of the insured’s health at the time of renewal or reinstatement of the policy, its purport can be ascertained from the following: The plaintiff • testified: “My husband took sick on Friday, April 4, 1924. He went to work in the forenoon about 6 o’clock, came home around 10 o’clock, and did not go back to work after that. He lived for a period of about two days, and died on Sunday, April 6, 1924, around 6 o’clock. The cause of his death was pneumonia. He came home around 10 o’clock (April 4th); he could not work. He was sick. * * * When my husband came home at 10 o’clock, on April 4th, I undressed him and called Dr. Johnson to see him. He was in bed, too sick to gO' to the doctor’s home, so I called the doctor. The doctor examined him and took his temperature on April 4th, which was 107 degrees. He stayed in bed until his death. After the doctor diagnosed my husband’s case, on April 4th, around noon, the doctor told me that my husband had lobar pneumonia, and that his fever was 107 degrees. He called three times on that day.” The same witness testified that when her husband left home on the morning of April 4th he was in good health; notwithstanding this, other testimony in the record discloses that he was compelled by illness to leave his work on April 3d and that he called that day at Dr. Johnson’s office and secured a prescription for a cough or cold. In the proofs of death which plaintiff caused to be filed, Dr. Johnson, who was the family physician, made the statement that the insured showed the first symptoms of his illness April 3, 1924. There is other testimony to the same effect; and all that can he found in the record which plaintiff’s counsel claims in any way tends to change the purport of the foregoing is in the testimony of Dr. Johnson, who stated that the insured was not a very sick man on April 3d, and that when he first saw him on April 4th his temperature was around 104 degrees and that after making his diagnosis on that day he did not come to any definite conclusion, but that'he had the deceased under observation for the purpose of determining what the trouble was. The expression “good health,” as used incident .to insurance contracts, is comparative, and has a more or less flexible meaning. This court has said “sound health” is a state of health free from any disease or ailment that affects the general soundness and healthfulness of the system seriously, not a mere temporary indisposition which does not tend to weaken or undermine the constitution' of the assured. Brown v. Insurance Co., 65 Mich. 306 (8 Am. St. Rep. 894). And the foregoing seems to have been approved as a definition of “good health.” Hann v. National Union, 97 Mich. 513 (37 Am. St. Rep. 365) ; Plumb v. Insurance Co., 108 Mich. 94. If we test this case by the foregoing or any other fair and reasonable definition of the expression “good health,” it is obvious that only one conclusion is possible from the proofs, which is that by noon of April 4, 1924, the insured was not in “good health,” but on the contrary he was seriously ill and continued in that condition until his death two days later. The verdict of the jury cannot be sustained. The trial court should have granted the defendant’s motion for judgment notwithstanding verdict. Because of the error indicated, the judgment is reversed and the case remanded to the circuit court with directions to set aside the judgment heretofore entered and in lieu thereof to enter judgment for defendant. The appellant will have costs in this court. Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Flannigan, C. J., did not sit. The late Justice Bird took no part in this decision.
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Fellows, J. Supported by the evidence and. not against its weight, the trial judge found that plaintiff made known the purpose for which he desired an automatic heating device to the defendant, a manufacturer of such a device using oil as a fuel and having a thermostatic control, and that he relied on defendant’s skill and judgment in furnishing him a heating plant adaptable to his purpose, and that the plant furnished by defendant totally failed in its purpose. The testimony shows that plaintiff owns a house having several apartments, some of which are rented. Both he and his wife are employed and away from home during the day and he desired an automatic heating device which would not need constant attention to keep the rented apartments warm during their absence. The defendant first installed a so-called “Breeding” oil burner, but it was unsatisfactory and at an added piriee it installed an “Electro.” There is no doubt on this record that defendant knew of plaintiff’s purpose, and that plaintiff relied on defendant’s skill and judgment in furnishing a device that would effectuate such purpose. There is an abundance of testimony that the device installed did not accomplish its purpose, and that plaintiff’s tenants during the day, and he and his wife when at home suffered much from a want of heat. There is testimony that the service department of defendant frequently went to plaintiff’s home to make adjustments and there is some testimony that requests for such service were met by undue delay. The parties came to the parting of the ways when an explosion and resultant fire endangered plaintiff’s home and he ordered the outfit taken out. Plaintiff claims that under the uniform sales act (Act No. 100, Pub. Acts 1913 [3 Comp. Laws 1915, § 11832 et seq.]), there was under the facts an implied warranty of fitness, while defendant contends that there was. an express warranty and that none can be implied. We need not quote the “guarantee” found in the contract between the parties. For the purposes of the case we assume it to be an express warranty warranting that the equipment is free, from*,defect in material and workmanship, and agreeing that defendant will replace any defective parts within the period- therein stated. It does not go further than this. I The applicable provisions of the uniform sales act (3 Comp. Laws 1915, § 11846) are as follows: “Implied warranties of quality. Subject to the-provisions of this act and any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: “(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment; whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose. * * * “(6) An express warranty or condition does not negative a warranty or condition implied under this act unless inconsistent therewith.” In the instant.case the express warranty that the equipment was free from defects in material and workmanship is in no way inconsistent with the implied warranty of fitness provided for in the statute. Both counsel call our attention to numerous cases but neither of them cited Pentland v. Jacobson, 189 Mich. 339, which to our mind is decisive of the question. In that case it was held (quoting from the syllabus): “Under Act No. 100, Pub. Acts 1913, § 15, and subd. 6, an express warranty does not preclude the existence of and reliance upon an implied warranty unless the two are inconsistent.” As this case follows the unambiguous language of the statute and is controlling, we need not take time to discuss and distinguish the numerous cases cited. The judgment must be affirmed. Wiest, Clark, McDonald, and -Sharpe, JJ., concurred. North, J.>, did.not sit. Chief Justice Flannigan Khd the late Justice Bird took no part in this decision. ’ -
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Wiest, J. An agent of defendant employed plain tiff company to fill a lot with earth, and this suit was brought to recover for the work performed. Under plea of the general issue defendant gave notice of set-off. The issues were tried before the court without a jury and judgment rendered in favor of plaintiff for an amount considerably less than its demand. Defendant reviews by writ of error. The main question in issue in the circuit was whether the agreement limited the filling to 70 loads of earth. The court found no such limitation and permitted plaintiff ,to recover. The court made findings of fact from which we quote the following: “The plaintiff company in pursuance of an oral contract with the defendant furnished 199 loads of filling dirt, and some 58 loads of top dirt, for the grading of defendant’s premises in the township of Bloomfield. The agreed price to be paid for the filling dirt was $3 and for the top dirt $3.25 per load, each load consisting of approximately one and one-half yards. * * * “The court finds that so far as the filling dirt was concerned, that it was proper for the purpose for which it was furnished. * * * The dirt which was furnished for top dirt was not suitable for the purpose for which it was furnished. It is full of stones and not of such a character as would support -a growth of grass. “The conclusion that the court reaches under the circumstances is that the plaintiff is entitled to recover for 199 loads of filling dirt at an agreed price of $3 per load, making a total of $597, and $65 which was furnished for labor, making a total of $662 on which $35 interest is allowed, making a total credit of $697. “It is apparent from the testimony in the case that the plaintiff is not entitled to recover for the top dirt, the defendant would be entitled to the cost of removing that dirt plus the damage to the trees. I think under the circumstances $100 will compensate him for the cost of removing that dirt and for damage to the trees. It is quite apparent from his claim of set-off that a greater portion of the charges which he makes are for costs which were incurred in grading and placing top dirt on his lawn and seeding it. I do not believe under his contract with the plaintiff that ■ he would be entitled to set this off against the cost of the filling dirt. Under my conclusion of the case, the plaintiff would be entitled to a judgment of $597 against the defendant.” The evidence supports the findings. Defendant’s agent thought 70 loads of earth would perform the filling, but the contract was not for 70 loads and no more, but for the filling. The price per load was agreed upon, but no limit placed on the number of loads. We think defendant’s claim of set-off sufficiently recognized and cared for in the judgment rendered. The judgment is affirmed, with costs to plaintiff. North, Fellows, Clark, McDonald, and Sharpe, JJ., concurred. Chief Justice Flannigan and the late Justice Bird took no part in this decision.
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YOUNG, C.J. Michigan’s revenue collection act provides that, when the Michigan Department of Treasury (the department) issues a final assessment of tax deficiency, a taxpayer has 35 days to appeal that adverse tax decision to the department or 90 days to appeal to the Court of Claims. The act also requires that the department provide a copy of a notice of the final assessment to the taxpayer’s duly appointed representative, if one was appointed. These companion cases pose the same question: Does the time within which a taxpayer must appeal a final assessment of tax deficiency begin to run when the department issues the final assessment to the taxpayer as required, but fails to give the mandatory statutory notice to a taxpayer’s official representative? We hold that, if a taxpayer has appointed a representative, the department must issue notice to both the taxpayer and the taxpayer’s official representative to trigger the running of the appeal period. Thus, the taxpayer’s 35-day appeal period does not begin to run until the department issues notice to the representative, in addition to the taxpayer. Accordingly, we affirm in part and vacate in part the decisions of the Court of Appeals panels in each of these companion cases. I. FACTS AND PROCEDURAL HISTORY Appellees are Michigan corporations that operate convenience stores in Michigan. Petitioner Fradco, Inc. (Fradco) is located in Ada, and petitioner SMK, LLC (SMK) is located in Midland. The parties are unrelated to each other, but the legal issues presented in each appeal are identical. A. FRADCO, INC. In October 2004, Fradco retained the services of a certified public accountant (CPA) to handle its accounting and tax matters. On October 19, 2004, Fradco’s resident agent executed a power of attorney authorization and provided copies thereof to respondent department, directing the department to provide the CPA “[a]ll [department] billings and payment notices” and allowing the CPA to “receive information and represent me (Fradco) in all [department] tax matters.” The power of attorney remained in effect at all times relevant to this case. In May 2008, the department completed a sales tax audit of Fradco and disallowed a food deduction. Fradco’s CPA appealed the audit determination at an informal conference, and provided the power of attorney authorization to the hearing referee. The department issued a preliminary decision and order of determination dated January 22, 2009, a copy of which was mailed to Fradco’s CPA. The final assessment was dated September 17, 2009 and sent only to Fradco’s place of business via certified mail. On April 19, 2010, Fradco’s representative inquired about the final assessment. The representative was informed by letter dated April 21, 2010, that “a Final Assessment was issued September 17, 2009” and that “[n]o appeal was made with respect to this Final Assessment as provided by statute and the matter is now shown as subject to collection.” This letter did not provide a copy of the assessment. After several requests, Fradco and its CPA received a copy of the final assessment on July 20, 2010, ten months after the date printed on the face of the assessment. Fradco claims that this was the first and only copy received, by it or its representative. Fradco filed its appeal with the Tax Tribunal on July 28, 2010 — eight days after its representative received the final assessment. The department moved for summary disposition under MCR 2.116(C)(4), arguing that the Tax Tribunal lacked jurisdiction because the appeal was not filed within 35 days after issuance of the final assessment. B. SMK, LLC In April 2010, the department completed an audit of SMK and disallowed a food deduction. SMK hired Edward Kisscorni, a CPA. Through a power of attorney authorization form executed on March 26, 2010, and provided to the department shortly thereafter, SMK designated Kisscorni to represent it for the purposes of the sales tax audit and gave him limited authorization to “[ijnspect or receive confidential information,” “[represent [SMK] and make oral or written presentation of fact or argument,” and “[receive mail from Treasury . . . (including] forms, billings, and notices).” On April 23, 2010, the department faxed Kisscorni a notice stating that the “audit package was submitted.” A final assessment dated June 15, 2010 was sent to SMK via certified mail. However, SMK claims that it did not receive the final assessment. According to SMK’s petition, Kisscorni made several phone calls to the department in July, inquiring whether a final assessment had been issued. He received no answers from the department. Thereafter, on July 23, 2010 (five days after the appeal period had allegedly run), the department sent SMK’s representative the final assessment and a letter stating that the deadline for appeal had passed. On July 29, 2010, SMK filed an appeal of the final assessment. As occurred in Fradco’s case, rather than responding to the petition before the Tax Tribunal, the department filed a motion for summary disposition under MCR 2.116(C)(4), arguing that the Tax Tribunal lacked jurisdiction because the appeal was not filed within 35 days after issuance of the final assessment. Both Fradco and SMK opposed the respective motions on the ground that the appeal period had not been triggered because the department failed to give the statutory notice to their appointed representatives as required by MCL 205.8. C. TAX TRIBUNAL AND COURT OF APPEALS DECISIONS The Tax Tribunal denied the department’s motion for summary disposition in both cases, holding that MCL 205.8 provides a parallel notice requirement when a taxpayer properly files a written request that notices be sent to a representative. Therefore, the Tax Tribunal reasoned, notice to the taxpayer alone was not sufficient to initiate the 35-day appeal period because notice to the taxpayer’s representative was also required. Inasmuch as the final assessment was not issued to both the taxpayer and its representative, the Tax Tribunal retained jurisdiction over the petitioners’ appeals. The Tax Tribunal then decided petitioners’ appeals on the merits and in each case canceled the tax assessments. The department appealed by right to the Court of Appeals, asserting that the 35-day appeal period under MCL 205.22(1) began from the “issuance date” printed on the face of a final assessment, which needed only to be sent to the individual taxpayer. The Court of Appeals affirmed the Tax Tribunal in separate opinions dated October 30, 2012. In both cases, the Court held that, reading the relevant sections of the revenue collection act in pari materia, MCL 205.8 (notice to the taxpayer representative) imposed on the department a notice obligation parallel to MCL 205.28(l)(a) (notice to the taxpayer), both of which must be satisfied before the appeal period may begin to run. II. STANDARD OF REVIEW Our review of the Tax Tribunal’s decisions is limited. In the absence of fraud, we review a Tax Tribunal decision for a misapplication of the law or the adoption of a wrong principle. We consider the Tax Tribunal’s factual findings conclusive if they are “supported by competent, material and substantial evidence on the whole record.” Statutory interpretation is a question of law, which we review de novo. When interpreting a statute, courts must “ascertain the legislative intent that may reasonably be inferred from the words expressed in the statute.” This requires courts to consider “the plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” III. ANALYSIS These cases involve appeals of sales tax deficiency assessments, which are administered pursuant to the General Sales Tax Act (GSTA). The GSTA directs the department to in part administer the sales tax pursuant to the revenue collection act. Under this act, when the department conducts an audit and ultimately issues a final assessment stating that a taxpayer owes sales tax, it potentially has two notice obligations: it must provide notice to the taxpayer and, if the taxpayer has appointed a representative, the department must provide the representative with copies of “letters and notices regarding a dispute” between the taxpayer and the department. MCL 205.8. MCL 205.28 establishes the department’s notice obligations to the taxpayer: (1) The following conditions apply to all taxes administered under this act unless otherwise provided for in the specific tax statute: (a) Notice, if required, shall he given either by personal service or by certified mail addressed to the last known address of the taxpayer. Service upon the department may be made in the same manner.[ ] MCL 205.8 establishes the department’s notice obligations to the taxpayer’s designated representative: The department argues that MCL 205.8 is a nonbinding obligation — a mere “courtesy” provision, of which the taxpayer is simply the beneficiary. Alternatively, the department argues that MCL 205.8 operates to protect department employees from liability that would otherwise befall them if they disclosed a taxpayer’s information to the taxpayer’s representative without permission. If a taxpayer files with the department a written request that copies of letters and notices regarding a dispute with that taxpayer be sent to the taxpayer’s official representative, the department shall send the official representative, at the address designated by the taxpayer in the written request, a copy of each letter or notice sent to that taxpayer. A taxpayer shall not designate more than 1 official representative under this section for a single dispute.[ ] It is not clear how either of these arguments obviates the department’s obligation to provide the notice the statute requires, and the statutory text belies these claims. The Legislature’s use of the word “shall” in both MCL 205.8 and MCL 205.28(l)(a) indicates a mandatory and imperative directive. The two notice provisions are, by their terms, both compulsory, as each states that the department “shall” provide the required notice. Further, the GSTA states that the department “shall” administer the sales tax — including its assessment of sales tax deficiencies — pursuant to the revenue collection act, which encompasses both notice statutes. We conclude that MCL 205.8 is mandatory notwithstanding the greater specificity of MCL 205.28(a)(1), which requires personal service or notice by certified mail, because that specificity has no bearing on the elements of the statute that impose a mandatory obligation to provide notice to a designated taxpayer representative. Similarly, it is irrelevant that MCL 205.8 requires that “copies” of notices and letters be provided to a taxpayer’s representative. Applying the plain meaning of “shall,” there can be no doubt that MCL 205.8 unambiguously directs the department to furnish a taxpayer’s representative with these documents whenever the taxpayer is entitled to receive the same. Reading the notice statutes in pari materia with MCL 205.22 confirms the notice statutes’ parity. Statutes that relate to the same subject matter or share a common purpose must be read together as constituting one law, even if they contain no reference to one another and were enacted on different dates. Conflicting provisions of such statutes must be read together to produce a harmonious whole and to reconcile any inconsistencies wherever possible. The purpose of this interpretive rule is to give effect to the legislative purpose as found in statutes on a particular subject. MCL 205.22, which dictates procedures surrounding a taxpayer’s appeal, does not refer to either MCL 205.8 or MCL 205.28(l)(a). MCL 205.22 merely states that the appeal period begins to run upon “issuance of the assessment, decision, or order.” Just as MCL 205.22 does not refer to either notice requirement, neither of the notice-requirement statutes refers to MCL 205.22. Accordingly, there is no statutory indication suggesting that we hold MCL 205.8’s taxpayer representative no tice requirement in lower esteem than the MCL 205.28(l)(a) taxpayer notice requirement. When notice is required, the department must notify the taxpayer and any representative duly appointed by the taxpayer. Having determined that the Legislature intended MCL 205.8 to apply to the department coextensively with MCL 205.28(l)(a), we turn to the relationship between notice and issuance of the assessment. By statute, the appeal period cannot begin to run until “issuance of the assessment” occurs. The department concedes that if it fails to comply with MCL 205.28(l)(a), issuance does not occur. Because the two notice statutes stand on equal footing, the department’s concession compels the same consequence for its failure to comply with MCL 205.8, namely, that issuance does not occur. Furthermore, MCL 205.21(2)(f) provides a textual link between issuance of the final assessment and provision of the required notices. Under that section, a final assessment of a tax deficiency “is final and subject to appeal as provided in [MCL 205.22], The final notice of assessment shall include a statement advising the person of a right to appeal.” The statute equates “final assessment” with “final notice of assessment” by using the terms inter changeably. The notice and the assessment are one and the same. It follows that the assessment cannot issue if the notices do not issue. Given its plain meaning, “issuance” requires actual distribution; the root word, “issue,” is defined as “the act of sending out or putting forth; promulgation; distribution.” Thus, in addition to our determination that the two statutoiy notice requirements apply to the department with equal force, we further conclude that satisfaction of both notice requirements is required before issuance of the assessment is deemed to have occurred, starting the appeal period. Because the department delayed issuing the notices of assessment to the taxpayers’ representatives in both cases before us, the running of the appeal periods were also delayed. The taxpayers’ appeals were therefore timely, and the Tax Tribunal retained jurisdiction. IV CONCLUSION The Tax Tribunal and Court of Appeals correctly interpreted MCL 205.8 as imposing upon the depart ment an obligation to notify a taxpayer’s official representative before the time to appeal a final assessment may begin to run. In both force and effect, this obligation applies to the department coextensively with MCL 205.28(l)(a). The running of the appeal period is triggered by “issuance of the assessment,” and while issuance is not explicitly defined, MCL 205.21(2)(f) demonstrates that notice of the assessment is equivalent to the assessment itself. Thus, the running of the appeal period is triggered by issuance of statutory notice. Further, compliance with MCL 205.28(l)(a) is undisputedly a prerequisite to issuance. Because MCL 205.8 operates in tandem with MCL 205.28(l)(a), we hold that compliance with the department’s statutory obligation to notify a taxpayer’s official representative is likewise a prerequisite to issuance. However, because MCL 205.28(l)(a) and MCL 205.8 do not require the department to show that the taxpayer or its representative actually received the notice, we vacate the portions of the Court of Appeals opinions that read, “Because Petitioner filed its appeal within 35 days after its representative received notice from respondent, the Tax Tribunal had jurisdiction to hear petitioner’s appeal.” To the extent that this can be read to mean the appeal period begins when a taxpayer’s representative receives notice, we conclude it is erroneous. Instead, the appeal period begins when the department complies with MCL 205.28(l)(a) by giving the taxpayer notice of the final assessment through personal service or certified mail and MCL 205.8 by sending a copy of the notice of the final assessment to the representative’s address pro vided by the taxpayer in its written request. In all other respects, we affirm the rulings of the Court of Appeals. Cavanagh, Markman, Kelly, Zahra, McCormack, and Viviano, JJ., concurred with Young, C.J. MCL 205.1 et seq. MCL 205.22(1). MCL 205.8. See MCL 205.21(2)(b) through (d). Fradco Inc v Dep’t of Treasury, MTT Docket No. 409506 (Mich Tax Jan 20, 2011); SMK LLC v Dep’t of Treasury, MTT Docket No. 409504 (Mich Tax Jan 20, 2011). Fradco Inc v Dep’t of Treasury, MTT Docket No. 409506 (Mich Tax Sept 26, 2011); SMK LLC v Dep’t of Treasury, MTT Docket No. 409504 (Mich Tax Sept 26, 2011). SMK, LLC v Dep’t of Treasury, 298 Mich App 302; 826 NW2d 186 (2012); Fradco, Inc v Dep’t of Treasury, 298 Mich App 292; 826 NW 2d 181 (2012). SMK, 298 Mich App at 308-310; Fradco, 298 Mich App at 299-301. Mich Bell Tel Co v Dep’t of Treasury, 445 Mich 470, 476; 518 NW2d 808 (1994), citing Const 1963, art 6, § 28. Const 1963, art 6, § 28; Klooster v City of Charlevoix, 488 Mich 289, 295; 795 NW2d 578 (2011). In re Investigation of March 1999 Riots in East Lansing, 463 Mich 378, 383; 617 NW2d 310 (2000). Koontz v Ameritech Servs, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999), quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995). MCL 205.51 et seq. In administering taxes generally, the department must adhere to MCL 205.21 to 205.30, “[ulnless otherwise provided by specific authority in a taxing statute.” MCL 205.20. The GSTA is a taxing statute, and it dictates that the department follow the revenue collection act, MCL 205.1 to 205.31, in administering the sales tax. MCL 205.59(1). MCL 205.28(l)(a) (emphasis added). MCL 205.8 (emphasis added). See MCL 205.28(1)(f). Browder v Int’l Fidelity Ins Co, 413 Mich 603, 612; 321 NW2d 668 (1982). MCL 205.59(1). Jennings v Southwood, 446 Mich 125, 136; 521 NW2d 230 (1994); Crawford Co v Secretary of State, 160 Mich App 88, 95; 408 NW2d 112 (1987). World Book, Inc v Dep’t of Treasury, 459 Mich 403, 416; 590 NW2d 293 (1999). Jennings, 446 Mich at 137. MCL 205.22(5). Specifically, MCL 205.22(5) states that “[a]n assessment is final, conclusive, and not subject to further challenge after 90 days after the issuance of the assessment, decision, or order ....” This reflects the outer hound of an appeal’s timeliness, as MCL 205.22(1) permits an appeal to the Tax Tribunal within 35 days after the assessment or to the Court of Claims within 90 days after the assessment. In reading MCL 205.22 as a whole, it is apparent that both appeal periods begin to run upon “issuance” of the assessment. MCL 205.22(5). At oral argument, counsel for the department conceded that if the department does not comply with MCL 205.28(l)(a), it does not provide notice, and the consequence of not providing notice is that an assessment was never issued. MCL 205.21(2)(f) reads in full: If the taxpayer does not protest the notice of intent to assess within the time provided in subdivision (c), the department may assess the tax and the interest and penalty on the tax that the department believes are due and payable. An assessment under this subdivision or subdivision (e) is final and subject to appeal as provided in section 22. The final notice of assessment shall include a statement advising the person of a right to appeal. [Emphasis added.] Id. Indeed, “[i]t was previously the practice of [the department] to use the phrasing ‘notice of assessment’ when it issued assessments.” Fradco, 298 Mich App at 300. Random House Webster’s College Dictionary (1997). Although it did not preserve this issue in the Court of Appeals below, the department here challenges the validity of the power of attorney forms in both cases. In Fradco, the department argues that the authorization form was invalid because it did not identify a specific dispute, as MCL 205.8 allegedly requires. However, MCL 205.8 only states that a taxpayer may not designate more than one representative for a single dispute. Here, Fradco had only one designated representative throughout the dispute. In SMK, the department argues that the form designating Edward Kisscorni as a representative was not valid because it was the third authorization form on file. While it is true that SMK had three authorization forms on file, the third form gave Kisscorni limited authorization to represent SMK in this tax matter specifically. Thus, SMK only specifically designated one representative for this dispute. See note 26 of this opinion. Fradco, 298 Mich App at 301; SMK, 298 Mich App at 310.
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Kelly, J. This case involves two landowners’ facial challenge to the constitutionality of § 18-59 of the Brighton Code of Ordinances (BCO), which creates a rebuttable presumption that an unsafe structure may be demolished as a public nuisance if it is determined that the cost to repair the structure would exceed 100 percent of the structure’s true cash value as reflected in assessment tax rolls before the structure became unsafe. Specifically, we address whether this unreasonable-to-repair presumption violates substantive and procedural due process protections by permitting demolition without affording the owner of the structure an option to repair as a matter of right. As a preliminary matter, we clarify that the landowners’ substantive due process and procedural due process claims implicate two separate constitutional rights, and that we must analyze each claim under separate constitutional tests. The Court of Appeals therefore erred by improperly conflating these analyses and subsequently determining that BCO § 18-59 facially violates plaintiffs’ general due process rights. Instead, when each due process protection is separately examined pursuant to the proper test, the ordinance does not violate either protection on its face. We hold that BCO § 18-59 does not constitute an unconstitutional deprivation of substantive due process because the ordinance’s unreasonable-to-repair presumption is reasonably related to the city of Brighton’s legitimate interest in promoting the health, safety, and welfare of its citizens. Furthermore, the ordinance is not an arbitrary and unreasonable restriction on a property owner’s use of his or her property because there are circumstances under which the presumption may be overcome and repairs permitted. We likewise hold that the city of Brighton’s existing demolition procedures provide property owners, including plaintiffs, with procedural due process. Contrary to plaintiffs’ argument, the prescribed procedures are not faulty for failing to include an automatic repair option, which is, in essence, plaintiffs’ substantive due process argument recast in procedural due process terms. For purposes of this facial challenge, it is sufficient that aggrieved parties are provided the right to appeal an adverse decision to the city council as well as the right to subsequent judicial review. For the facial challenge to succeed, plaintiffs must show that no aggrieved property owners can meaningfully exercise their right to review or that such review is not conducted impartially. Because they have not done so, plaintiffs have failed to establish that BCO § 18-59, on its face, violates their procedural due process rights. We therefore reverse the judgment of the Court of Appeals and remand this case to the Livingston Circuit Court for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY Plaintiffs Leon and Marilyn Bonner own two residential properties, 122 E. North Street and 116 E. North Street, both located in downtown Brighton. Situated on these properties are three structures — two former residential homes and one barn/garage — all of which have been unoccupied and generally unmaintained for over 30 years. In January 2009, defendant city of Brighton’s (the City) building and code enforcement officer, James Rowell (the building official), informed plaintiffs via written notice that these three structures had been deemed “unsafe” in violation of the Brighton Code of Ordinances, and further constituted public nuisances in violation of Michigan common law. Plaintiffs were also informed of the building official’s additional determination that it was unreasonable to repair these structures consistent with the standard set forth in BCO § 18-59, which provides in its entirety as follows: Whenever the city manager, or his designee, has determined that a structure is unsafe and has determined that the cost of the repairs would exceed 100 percent of the true cash value of the structure as reflected on the city assessment tax rolls in effect prior to the building becoming an unsafe structure, such repairs shall be presumed unreasonable and it shall be presumed for the purpose of this article that such structure is a public nuisance which may be ordered demolished without option on the part of the owner to repair. This section is not meant to apply to those situations where a structure is unsafe as a result of an event beyond the control of the owner, such as fire, windstorm, tornado, flood or other Act of God. If a structure has become unsafe because of an event beyond the control of the owner, the owner shall be given by the city manager, or his designee, reasonable time within which to make repairs and the structure shall not be ordered demolished without option on the part of the owner to repair. If the owner does not make the repairs within the designated time period, then the structure may be ordered demolished without option on the part of the owner to repair. The cost of demolishing the structure shall be a lien against the real property and shall be reported to the city assessor, who shall assess the cost against the property on which the structure is located.[ ] Consequently, plaintiffs were ordered to demolish the structures within 60 days of the date of the building official’s letter. Because demolition had been ordered without an option to repair, plaintiffs appealed the building official’s determination to the Brighton City Council (city council) pursuant to the appellate process set forth in BCO § 18-61, which provides in relevant part: An owner of a structure determined to be unsafe may appeal the decision to the city council. The appeal shall be in writing and shall state the basis for the appeal. . . . The owner or his agent shall have an opportunity to be heard by the city council at a regularly scheduled council meeting. The city council may affirm, modify, or reverse all or part of the determination of the city manager, or his designee. Initially, the city council stayed its review pending the building official’s interior inspection of the structures. However, despite having previously agreed to allow the building official interior access, plaintiffs thereafter refused entry, causing the City to petition for and obtain administrative search warrants. On May 27, 2009, the building official and several other representatives of the City inspected the structures and found over 45 unsafe conditions therein. The hearing resumed on June 4, 2009, and June 18, 2009, during which the city council received written reports and heard oral testimony from both parties on the issues of the City’s findings and conclusions pursuant to the interior and exterior inspection of the premises, as well as its cost estimates for the structures’ repair versus their demolition. On July 16, 2009, the city council unanimously affirmed the building official’s determination that the structures were unsafe under all ten of the standards set forth in BCO § 18-46. The city council likewise found that plaintiffs had been maintaining unsafe structures in violation of BCO § 18-47, that the structures were unreasonable to repair under BCO § 18-59, and that demolition was required within 60 days of its decision. Rather than appeal the city council’s decision to the Livingston Circuit Court as an original action per BCO § 18-63, plaintiffs instead filed this independent cause of action against the City, alleging violations of due process, generally, as well as substantive due process; a violation of equal protection; inverse condemnation or a regulatory taking; contempt of court; common-law and statutory slander of title; and a violation of Michigan housing laws under MCL 125.540. The City subsequently filed its own complaint against plaintiffs in a separate action, requesting injunctive relief in the form of an order enforcing BCO § 18-59 and requiring demolition of the structures. After consolidating these cases, the circuit court denied the City’s request for injunctive relief and likewise denied relief to plaintiffs on several of the theories they had advanced. However, the circuit court did address the constitutionality of the ordinance, determining that, on its face, BCO § 18-59 violates substantive due process by permitting the City to order an unsafe structure to be demolished as a public nuisance without providing the owner the option to repair it when the structure is deemed unreasonable to repair as defined under the ordinance. The circuit court thus granted plaintiffs’ renewed motion for partial summary disposition under MCR 2.116(C)(10) on the substantive due process claim and thereafter denied reconsideration. After granting the City’s application for leave to appeal, the Court of Appeals affirmed the circuit court in a split published opinion. The majority concluded that the standard set forth under BCO § 18-59 is arbitrary and unreasonable, and thus violates substantive due process, because it only allow[s] the exercise of an option to repair when a property owner overcomes or rebuts the presumption of economic unreasonableness, regardless of whether the property owner is otherwise willing and able to timely make the necessary repairs.[ ] The majority also determined that BCO § 18-59 does not bear a reasonable relationship to the permissible legislative objective of protecting citizens from unsafe and dangerous structures because demolition does not advance the objective of abating nuisances and protecting citizens to a greater degree than repairs, even ones more costly than the present value of the structure and that an owner is willing and able to timely finance. Accordingly, the majority held that BCO § 18-59 is facially unconstitutional. Finally, notwithstanding the circuit court’s abstention from reaching the procedural due process issue, the majority went on to conclude that BCO § 18-59 likewise violates procedural due process because “the only way the city’s ordinances could withstand a procedural due process challenge” would be if it provides a property owner with the option to repair the structure. We granted the City’s application for leave to appeal, directing the parties to brief separately “whether § 18-59 is facially unconstitutional on the basis that the ordinance violates: (1) substantive due process; and/or (2) procedural due process.” II. STANDARD OF REVIEW This case implicates myriad standards of review. The circuit court granted plaintiffs motion for partial summary disposition pursuant to MCR 2.116(C)(10). We review de novo a circuit court’s decision on a motion for summary disposition. Summary disposition is appropriate under MCR 2.116(C)(10) if, “[ejxcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” “A genuine issue of material fact exists when, viewing the evidence in a light most favorable to the nonmoving party, the record which might be developed. .. would leave open an issue upon which reasonable minds might differ.” In deciding whether to grant a motion for summary disposition pursuant to MCR 2.116(C)(10), a court must consider “[t]he affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties,” in the light most favorable to the nonmoving party. This dispute also concerns the constitutionality of a municipal ordinance, which necessarily involves the interpretation and application of the ordinance itself. We review de novo questions of constitutional law; however, this Court accords deference to a deliberate act of a legislative body, and does not inquire into the wisdom of its legislation. The decision to declare a legislative act unconstitutional should be approached with extreme circumspection and trepidation, and should never result in the formulation of a rule of constitutional law “broader than that demanded by the particular facts of the case rendering such a pronouncement necessary.” “Every reasonable presumption or intendment must be indulged in favor of the validity of the act, and it is only when invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution that a court will refuse to sustain its validity.” Further, because ordinances are treated as statutes for purposes of interpretation and review, we also review de novo the interpretation and application of a municipal ordinance. Since the rules governing statutory interpretation apply with equal force to a municipal ordinance, the goal of construction and interpretation of an ordinance is to discern and give effect to the intent of the legislative body. The most reliable evidence of that intent is the language of the ordinance itself and, therefore, the words used in an ordinance must be given their plain and ordinary meanings. III. ANALYSIS Plaintiffs make two facial constitutional attacks upon BCO § 18-59. First, they assert that the ordinance violates substantive due process by permitting demolition of an unsafe structure without extending to its owner an option to repair, because denying a property owner the chance to repair an unsafe structure does not advance the City’s otherwise legitimate interest in protecting the health, safety, and welfare of the Brighton citizenry. Second, plaintiffs argue that the ordinance violates procedural due process by failing to provide a procedure to safeguard a property owner’s right to choose whether to repair a structure municipally deemed unsafe before the City orders it demolished. We will address plaintiffs’ arguments in this order; before proceeding further, however, we find it necessary to make two critical observations. First, we emphasize that this is a facial challenge to BCO § 18-59; plaintiffs do not challenge the ordinance’s application in a particular instance. A party challenging the facial constitutionality of an ordinance “faces an extremely rigorous standard.” To prevail, plaintiffs must establish that “ ‘no set of circumstances exists under which the [ordinance] would be valid’ ” and “ ‘[t]he fact that the .. . [ordinance] might operate unconstitutionally under some conceivable set of circumstances is insufficient’ ” to render it invalid. Indeed, “ ‘if any state of facts reasonably can be conceived that would sustain [the ordinance], the existence of the state of facts at the time the law was enacted must be assumed’ ” and the ordinance upheld. Finally, because facial attacks, by their nature, are not dependent on the facts surrounding any particular decision, the specific facts surrounding plaintiffs’ claim are inapposite. Second, and particularly noteworthy here, we emphasize that analysis of substantive and procedural due process involves two separate legal tests. While the touchstone of due process, generally, “is protection of the individual against arbitrary action of government,” the substantive component protects against the arbitrary exercise of governmental power, whereas the procedural component is fittingly aimed at ensuring constitutionally sufficient procedures for the protection of life, liberty, and property interests. As evidenced by the following statement, the Court of Appeals made clear its misunderstanding of these distinct constitutional claims when it concluded that BCO § 18-59 was facially unconstitutional: Ultimately, we conclude that the ordinance infringes on plaintiffs’ due process rights, whether denominated procedural or substantive, thereby making it unnecessary to determine which due process principle is actually embodied in plaintiffs’ argument.[ ] As a result, the Court of Appeals conflated what previous decisions have indicated should be treated as separate inquiries. Indeed, the issue whether BCO § 18-59 is facially unconstitutional for denying property owners the opportunity to repair unsafe structures in violation of substantive due process is distinct from the issue whether the ordinance is facially unconstitutional for permitting the demolition of unsafe structures without providing adequate procedural safeguards in violation of the right to procedural due process. By melding together plaintiffs’ substantive and procedural due process claims, the Court of Appeals failed to observe that distinction and thus examine these claims in light of the correct legal standards. We therefore take this opportunity to clarify that alleged violations of substantive and procedural due process must be separately analyzed in order to determine whether the specific dictates of due process have been satisfied. A. GENERAL DUE PROCESS PRINCIPLES 1. LEGAL FRAMEWORK The federal due process provision guarantees that no person shall be deprived of “life, liberty, or property, without due process of law.” Prior caselaw has interpreted this language to “guárante [e] more than fair process,” but to encompass a substantive sphere as well, “barring certain government actions regardless of the fairness of the procedures used to implement them.” Determining whether the ordinance in this case violates due process requires that we engage in several inquiries, the first and most essential of which asks whether the interest allegedly infringed by the challenged government action — here, a property owner’s interest in repairing an unsafe structure — comes within the definition of “life, liberty or property.” If it does not, the Due Process Clause affords no protection. If, however, a life, liberty or property interest is found to exist and to be threatened by the City’s conduct, the next two queries will address what process is due before the government can interfere with that interest. Because the Due Process Clause offers two separate types of protections — substantive and procedural — separate inquiries must examine whether these protections have been provided. 2. APPLICATION Plaintiffs allege that their property rights have been violated by the City’s decision to order their structures demolished without providing them with the option to repair the structures. Explicit in our state and federal caselaw is the recognition that an individual’s vested interest in the use and possession of real estate is a property interest protected by due process. Accordingly, plaintiffs, as owners of the three structures at issue and the land on which those structures are situated, have a significant property interest within the protection of the Due Process Clause. B. SUBSTANTIVE DUE PROCESS 1. LEGAL FRAMEWORK Having identified a significant property interest protected by the Due Process Clause, we continue our analysis by addressing plaintiffs’ substantive due process claim. “ ‘Substantive due process’ analysis must begin with a careful description of the asserted right,” for there has “always been reluctan[ce] to expand the concept of substantive due process” given that “[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” Where the right asserted is not fundamental, the government’s interference with that right need only be reasonably related to a legitimate governmental interest. A zoning ordinance must similarly stand the test of reasonableness — that it is “ ‘reasonably necessary for the preservation of public health, morals, or safety’ ” — and, as we have stated, it is presumed to be so until the plaintiff demonstrates otherwise. Accordingly, a plaintiff may successfully challenge a local ordinance on substantive due process grounds, and therefore overcome the presumption of reasonableness, by proving either “that there is no reasonable govern mental interest being advanced by the present zoning classification itself. . . or, secondly, that an ordinance [is] unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.” The reasonableness of the ordinance thus becomes the test of its legality. 2. APPLICATION Mindful of these principles, we begin by describing the right asserted by plaintiffs. Plaintiffs are not generally arguing that they have a categorical right of property use or possession, but assert a much more limited constitutional right; namely, that encompassed within the Due Process Clause’s protection of property is a property owner’s right to repair a structure municipally deemed “unsafe” before that structure can be demolished. However, we are unaware of any court that has ever granted a property owner the fundamental right of an absolute repair option involving property that has fallen into such disrepair as to create a risk to the health and safety of the public. Indeed, that conclusion would hardly be compatible with the line of cases in which this Court and the United States Supreme Court have held that reasonableness is essential to the validity of an exercise of police power affecting the general rights of the land owner by restricting the character of the owner’s use, which would include the opportunity to repair unsafe structures. The right asserted by plaintiffs, then, cannot be considered fundamental. Therefore, to demonstrate a violation on substantive due process grounds, plaintiffs have the burden of showing that the unreasonable-to-repair presumption set forth in BCO § 18-59 does not bear any reasonable relationship to a legitimate governmental interest. BCO § 18-59 was enacted pursuant to the City’s police powers, and its purpose is to abate a public nuisance by requiring repairs or demolition of unsafe structures. It is firmly established that nuisance abatement, as a means to promoting public health, safety, and welfare, is a legitimate exercise of police power and that demolition is a permissible method of achieving that end. Certainly, then, there can be no dispute that the public interest that BCO § 18-59 is intended to serve — protecting the health and welfare of the citizens of Brighton by eliminating the hazards posed by dangerous and unsafe structures — is a legitimate one. What is in dispute, however, is whether the unreasonable-to-repair presumption bears a reasonable relationship to that interest. The Court of Appeals found it did not. In the Court of Appeals’ view, to refuse a willing and able property owner the option to repair property that has been deemed unsafe because of the City’s view of the unreasonableness of the cost does no more to advance this permissible legislative objective than does allowing corrective repairs to be made in the first instance. In our view, however, if permitting demolition of unsafe structures (notwithstanding the willingness and financial ability of property owners to undertake corrective repairs) is not unconstitutional in itself, it does not become so simply because it is shown to be less desirable than some other action. While affording a property owner the opportunity to perform corrective repairs is one method by which the dangers posed by an unsafe structure may be remedied, it is by no means the only method — much less the only constitutional method — of doing so. As long as certain minimum standards have been met, and the ordinance does not encroach upon a property owner’s fundamental rights, the decision to exceed those standards by providing a property owner with an automatic right of repair, as some municipalities have chosen to do, is a policy judgment, not a constitutional mandate. Indeed, to satisfy substantive due process, the infringement of an interest that is less than fundamental, such as the right asserted here, requires no more than a reasonable relationship between the governmental purpose and the means chosen to advance that purpose. This standard allows a municipal body sufficient lati tude to decide, as the City has, that certain considerations favor using one means, i.e., demolition, rather than another, i.e., repairing. Enacting an ordinance that presumes repairs will be unreasonable to undertake if the cost of those repairs exceeds 100 percent of the property’s value before it became unsafe protects children and others from the risk of increased injury, reduces the opportunity for crime, and aids in the maintenance of property values and marketability of lands. Any one of these purposes is reasonably related to the City’s interest in promoting the health, safety, and welfare of its citizens and it is presumed that the City acted for such reasons, or for any other valid reason, in enacting BCO § 18-59. Without question, property owners have a constitutional right of property use, but this does not translate into an absolute constitutional right to repair unsafe structures. Moreover, even assuming that plaintiffs had a protected interest in repairing the unsafe structures at issue here before that property could be subject to demolition, BCO § 18-59 is reasonably related to several governmental interests, and thus did not facially violate substantive due process. Accordingly, plaintiffs’ asserted private right of repair must yield to the City’s higher governmental interest in protecting the health, safety, and welfare of its citizens, and the Court of Appeals erred in concluding otherwise. Nor have plaintiffs shown that BCO § 18-59 violates their substantive due process rights as an arbitrary and unreasonable restriction on plaintiffs’ constitutionally recognized property interests. Under this standard, a presumption still prevails in favor of the reasonableness and validity in all particulars of a municipal ordinance, unless plaintiffs can show that the unreasonable-to-repair-presumption constitutes “ ‘an arbitrary fiat, a whimsical ipse dixit,’ ” leaving “ ‘no room for a legitimate difference of opinion concerning its reasonableness.’ ” Plaintiffs argue, and the Court of Appeals agreed, that the unreasonable-to-repair presumption in BCO § 18-59 can only be overcome upon a showing of economic reasonableness, i.e., that repair costs would not exceed “100 percent of the true cash value of the structure as reflected on the city assessment tax rolls prior to the building becoming an unsafe structure.” There is, however, no textual support for this interpretation because BCO § 18-59 does not specify the manner in which the unreasonable-to-repair presumption may be overcome. A showing of reasonableness could therefore be established by presenting a viable repair plan; evidence from the challenger’s own experts that, contrary to the City’s estimates, the repair costs would not exceed 100 percent of the property value; or evidence that the structure subject to demolition has some sort of cultural, historical, familial, or artistic value. Because reasonableness can be established in economic or noneconomic terms, plaintiffs have failed to show, and the Court of Appeals erred by concluding, that BCO § 18-59 is arbitrary and unreasonable because “it denies a property owner the option to repair an unsafe structure simply on the basis that the city deems repair efforts to be economically unreasonable.” Again, even assuming that there is a protected property interest in repairing an unsafe structure, plaintiffs have failed to demonstrate that BCO § 18-59 arbitrarily or unreasonably infringes that right by denying a property owner an option to repair as a matter of right. The unreasonable-to-repair presumption in BCO § 18-59 is not arbitrary because it does not represent a total prohibition on a property owner’s opportunity to repair an unsafe structure, and the ordinance applies uniformly to all structures that have repair costs in excess of 100 percent of the structure’s value before it became unsafe, except those structures that BCO § 18-59 expressly exempts. Nor is the ordinance unreasonable merely because there exists an arguably preferred method of addressing the legislative objective sought to be attained, or because the prohibited land use is just as reasonable as the one permitted or required under the ordinance. Certainly, a variety of permissible land uses may be excluded or restricted by local ordinance provided the ordinance is reasonable, and we do not concern ourselves with the wisdom or desirability of such legislation. Furthermore, even if the relationship between BCO § 18-59 and the City’s interest in promoting the public health, safety, and welfare is debatable, we need more than a mere difference of opinion to establish a substantive due process violation, and plaintiffs have failed to make such a showing. Accordingly, the presumption of constitutionality favors the ordinance’s validity, and we may not second-guess the City’s policy judgment in enacting it. We find nothing arbitrary or unreasonable about the City’s interest in demolishing unsafe structures and believe the means selected — the unreasonable-to-repair presumption in BCO § 18-59 — bears a reasonable relationship to the objective sought to be attained. Because plaintiffs have failed to satisfy the burden necessary to invalidate BCO § 18-59 on substantive due process grounds, it must be sustained. C. PROCEDURAL DUE PROCESS 1. LEGAL FRAMEWORK We turn now from the claim that the City may not, by virtue of BCO § 18-59, deprive plaintiffs of their as serted property interest without first affording them the opportunity to repair a structure deemed unsafe by the City, to plaintiffs’ procedural due process claim that the City may not order demolition on the basis of the procedures BCO § 18-59 provides. Well established is the assurance that deprivation of a significant property interest cannot occur except by due process of law. While the meaning of the Due Process Clause and the extent to which due process must be afforded has been the subject of many disputes, there can be no question that, at a minimum, due process of law requires that deprivation of life, liberty, or property by adjudication must be preceded by notice and an opportunity to be heard. To comport with these procedural safeguards, the opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.” As recognized by the U.S. Supreme Court, [Ildentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.[ ] 2. APPLICATION To determine whether BCO § 18-59 provides property owners the process to which they are constitutionally entitled, we first review in some detail the procedures the City has employed through this ordinance. The City’s demolition process ordinarily begins with an inspection of a particular structure followed by a determination by the city manager, or some other agent designated by the City, that the structure is unsafe pursuant to any one or more of the ten factors delineated in BCO § 18-46 and is, therefore, subject to demolition. This determination triggers BCO § 18-59, which requires that the city manager, or the city manager’s designee, determine the cost to repair the structure and compare that cost to the structure’s true cash value as reflected in assessment tax rolls before the structure became unsafe. If the cost to repair exceeds the structure’s true cash value, then the structure is presumed to be a public nuisance subject to demolition. If not, the structure remains in its unsafe condition but may not, at this point, be subject to demolition. In either case, the city manager must then serve the structure’s owner with written notice pursuant to BCO § 18-52. If the city manager has determined that the structure at issue can be made safe, the notice must identify the required repairs and improvements with which the property owner must comply within a reasonable time or face demolition. However, if, as in this case, the city manager determines that the structure cannot be made safe, the notice must indicate that demolition will ensue. Moreover, following either determination, the notice must inform the property owner of the right to appeal the city manager’s determination to the city council pursuant to BCO § 18-61. Within ten calendar days of receipt of this notice, the property owner must notify the City of his or her intent to accept or reject the terms of the notice. If the owner rejects the terms of the notice and submits a written appeal that “state[s] the basis for the appeal,” “[t]he owner or his agent shall have an opportunity to be heard by the city council at a regularly scheduled council meeting.” The city council then has the discretion to “affirm, modify, or reverse all or part of the determination of the city manager, or his designee.” If the owner receives an adverse final decision from the city council, the owner “may appeal th[at] decision to the county circuit court by filing a complaint within 20 calendar days from the date of the decision.” Because this is a facial constitutional challenge, plaintiffs do not argue that the City failed to properly execute or enforce this procedural system. Instead, plaintiffs contend that the City’s procedural system results in an unconstitutional deprivation of a property interest absent due process of law because it fails to give the owner of an unsafe structure the procedural protection of a repair option before that property may be demolished. Because this argument is simply the substantive due process argument recast in procedural due process terms, the argument meets with the same fate. Nevertheless, the Court of Appeals determined that although BCO § 18-61 comports with procedural due process to the extent that it provides notice, a hearing, and a decision by an impartial decision-maker, “the [C]ity should have also provided for a reasonable opportunity to repair the unsafe structure” in order for the ordinance to pass constitutional scrutiny. We disagree. At least as it pertains to this facial challenge, due process was satisfied by giving plaintiffs the right to an appeal before the city council and the opportunity to appeal that decision to the circuit court. The essence of due process is the requirement that “a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.” All that is necessary, then, is that the procedures at issue be 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, which must generally occur before they are permanently deprived of the significant interest at stake. Here, there is no dispute that if the city manager orders a structure to be demolished under BCO § 18-59, aggrieved parties, such as plaintiffs, have the right to appeal that determination to the city council under BCO § 18-61. Although BCO § 18-59 creates a presumption that an unsafe structure shall be demolished as a public nuisance if the cost to repair the structure would exceed 100 percent of the structure’s true cash value as reflected in the assessment tax rolls before the structure became unsafe, this presumption is rebuttable. To rebut this presumption and avoid demolition, the aggrieved party need only show that the repair is reasonable, a showing that may be achieved by economic or noneconomic means. It is then within the city council’s discretion to “affirm, modify, or reverse all or part of the determination of the city manager, or his designee.” When the city council decides, as it did here, to affirm the determination of the building official based on the evidence before it, that adverse ruling does not render an aggrieved party’s opportunity to be heard any less meaningful. To the contrary, it shows that the procedures in place are sufficient to provide property owners with notice and a meaningful opportunity to be heard. Furthermore, vital to the assessment of what process is due in this case is the tenet that substantial weight must be given to the procedures provided for by those individuals holding legislative office — including members of a city council with whom the electorate has entrusted the duty of protecting the health and safety of all citizens — for “[i]t is too well settled to require citation that a statute must be treated with the deference due to a deliberate action of a coordinate branch of our State government... .” This is especially so where, as here, in addition to providing the aggrieved party with an effective process for asserting his or her claim before any demolition, the prescribed procedures also ensure the right to a hearing, as well as to subsequent judicial review, before the denial of the aggrieved party’s claim becomes final. For these reasons, we conclude that plaintiffs have failed to demonstrate a facial procedural due process violation where they received all the process to which they were constitutionally entitled. Accordingly, the Court of Appeals reversibly erred by holding to the contrary. We therefore conclude that affording a property owner an option to repair as a matter of right is not required before the demolition of an unsafe structure and, furthermore, existing procedures in BCO § 18-59 comport entirely with due process. IV CONCLUSION The Court of Appeals erroneously determined that BCO § 18-59 is facially violative of due process. BCO § 18-59 does not, on its face, deprive plaintiffs of substantive due process when the ordinance’s unreasonable-to-repair presumption is reasonably related to the City’s interest in protecting the health, safety, and general welfare of its citizens from unsafe or dangerous structures. Furthermore, the presumption set forth in BCO § 18-59 is neither arbitrary nor unreasonable because there are circumstances under which the presumption could be overcome and repairs permitted. Nor does § 18-59, on its face, deprive plaintiffs of procedural due process. BCO § 18-61 affords an aggrieved party notice and a meaningful opportunity to present evidence to rebut the unreasonable-to-repair presumption in BCO § 18-59 before an impartial decision-maker, and plaintiffs have not satisfied their burden of showing that they are constitutionally entitled to further processes in order to satisfy due process requirements. We therefore reverse the decision of the Court of Appeals and remand this case to the Livingston Circuit Court for further proceedings consistent with this opinion. Young, C.J., and Cavanagh, Markman, Zahra, McCormack, and Viviano, JJ., concurred with Kelly, J. Specifically, the property was deemed "unsafe,” as defined by BCO § 18-46, for the foEowing defects: “coEapsing porch structure and foundations for same; coEapsing porch roof structure; damaged or missing shingles; rotted roof sheathing; lacking platform at front door; rotted and damaged wood siding; damaged/coEapsing rear porch roof structure; damaged or missing stairs, handraüs, guardraEs at rear porch; damaged/missing footings for rear porch; rotted rafters; fascia and exterior trim; damaged and/or lacking foundations; and repair damaged chimney.” This fist only included violations observable from outside the structures. Emphasis added. The italicized language reflects what we refer to as the unreasonable-to-repair presumption. BCO § 18-46 provides, Unsafe structure means a structure which has any of the following defects or is in any of the following conditions: (1) A structure, because of dilapidation, decay, damage, faulty construction, or otherwise which is unsanitary or unfit for human use; (2) A structure that has light, air, or sanitation facilities which are inadequate to protect the health, safety, or general welfare of those who live or may live within; (3) A structure that has inadequate means of egress as required by this Code; (4) A structure, or part thereof, which is likely to partially or entirely collapse, or some part of the foundation or underpinning is likely to fall or give way so as to injure persons or damage property; (5) A structure that is in such a condition so as to constitute a nuisance, as defined by this Code; (6) A structure that is hazardous to the safety, health, or general welfare of the people of the city by reason of inadequate maintenance, dilapidation, or abandonment; (7) A structure that has become vacant, dilapidated, and open at door or window, leaving the interior of the structure exposed to the elements or accessible to entrance by trespassers or animals or open to casual entry; (8) A structure that has settled to such an extent that walls or other structural portions have less resistance to winds than is required in the case of new construction by this Code; (9) A structure that has been damaged by fire, wind, flood, or by any other cause to such an extent as to be dangerous to the life, safety, health, or general welfare of the people living in the city; (10) A structure that has become damaged to such an extent that the cost of repair to place it in a safe, sound, and sanitary condition exceeds 50 percent of the assessed valuation of the structure, at the time when repairs are to be made. BCO § 18-47 provides, “It shall be unlawful for an owner or agent to maintain or occupy an unsafe structure.” Plaintiffs did not demolish the structures as required and were thus ordered to show cause as to their failure to comply with the city council’s decision in accordance with BCO § 18-58. At the show cause hearing, the city council determined that cause had not been shown to prevent demolition and again ordered demolition. To date, demolition has not occurred. Specifically, this ordinance provides that “[a]n owner aggrieved by a final decision of the city council may appeal the decision to the county circuit court by filing a complaint within 20 calendar days from the date of the decision.” Though plaintiffs clearly alleged a substantive due process violation under Count II of their complaint, they did not expressly state a procedural due process claim given that Count I simply alleges a violation of “due process rights.” However, because the Court of Appeals addressed the procedural due process component, and our grant order directed the parties to brief both substantive and procedural due process, we will address both claims. The circuit court did not rule on the procedural due process issue. Bonner v City of Brighton, 298 Mich App 693; 828 NW2d 408 (2012). Id. at 731. Id. at 717. Bonner v City of Brighton, 494 Mich 873 (2013). Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634 (2013). MCR 2.116(C)(10). Debano-Griffin, 493 Mich at 175 (citation omitted). MCR 2.116(G)(5). Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). Elba Twp v Gratiot Co Drain Comm’r, 493 Mich 265, 277; 831 NW2d 204 (2013). Dearborn Twp v Dail, 334 Mich 673, 680; 55 NW2d 201 (1952). Council of Orgs & Others for Ed About Parochiaid, Inc v Governor, 455 Mich 557, 568; 566 NW2d 208 (1997), citing United States v Raines, 362 US 17, 21; 80 S Ct 519; 4 L Ed 2d 524 (1960). Cady v Detroit, 289 Mich 499, 505; 286 NW 805 (1939). Soupal v Shady View, Inc, 469 Mich 458, 462; 672 NW2d 171 (2003). Macenos v Village of Michiana, 433 Mich 380, 396, 446 NW2d 102 (1989). Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). Klooster v City of Charlevoix, 488 Mich 289, 296; 795 NW2d 578 (2011). A facial challenge alleges that an ordinance is unconstitutional “on its face” because “[t]o make a successful facial challenge to the constitutionality of a statute, the challenger must establish that no set of circumstances exists under which the act would be valid.” Judicial Attorneys Ass’n v Michigan, 459 Mich 291, 303; 586 NW2d 894 (1998) (citations and quotation marks omitted). An as-applied challenge, to be distinguished from a facial challenge, alleges “a present infringement or denial of a specific right or of a particular injury in process of actual execution” of government action. Village of Euclid, Ohio v Amber Realty Co, 272 US 365, 395; 47 S Ct 114; 71 L Ed 303 (1926). Judicial Attorneys Ass’n v Michigan, 459 Mich at 310. Council of Orgs, 455 Mich at 568, quoting United States v Salerno, 481 US 739, 745; 107 S Ct 2095; 95 L Ed 2d 697 (1987). Council of Orgs, 455 Mich at 568-569, quoting 16 Am Jur 2d, Constitutional Law, § 218, p 642. City of Lakewood v Plain Dealer Pub Co, 486 US 750, 770 n 11; 108 S Ct 2138; 100 L Ed 2d 771 (1988). Wolff v McDonnell, 418 US 539, 558; 94 S Ct 2963; 41 L Ed 2d 935 (1974). Daniels v Williams, 474 US 327, 331; 106 S Ct 662; 88 L Ed 2d 662 (1986) (the substantive due process guarantee prevents governmental power from being oppressively exercised). Hannah v Larche, 363 US 420; 80 S Ct 1502; 4 L Ed 2d 1307 (1960) (the procedural due process guarantee requires that an individual must be accorded certain procedures before a protected interest is infringed, including notice of the proceedings against him, a meaningful opportunity to be heard, as well as the assurance that the matter will be conducted in an impartial manner); Wolff, 418 US 539; Mathews v Eldridge, 424 US 319; 96 S Ct 893; 47 L Ed 2d 18 (1976). Bonner, 298 Mich App at 710 (emphasis added). US Const, Am XIV Washington v Glucksberg, 521 US 702, 719, 117 S Ct 2258; 138 L Ed 2d 772 (1997). Daniels, 474 US at 331. Ingraham v Wright, 430 US 651; 97 S Ct 1401; 51 L Ed 2d 711 (1977). See, e.g., Dow v Michigan, 396 Mich 192, 204; 240 NW2d 450 (1976); Bd of Regents of State Colleges v Roth, 408 US 564, 571-572; 92 S Ct 2701; 33 L Ed 2d 548 (1972) (The “actual owner[] ... of real estate, chattels or money” has “property interests protected by procedural due process”). Reno v Flores, 507 US 292, 302; 113 S Ct 1439; 123 L Ed 2d 1 (1993). Collins v City of Harker Hts, 503 US 115, 125; 112 S Ct 1061; 117 L Ed 2d 261 (1992). See also Albright v Oliver, 510 US 266, 272; 114 S Ct 807; 127 L Ed 2d 114 (1994). TIG Ins Co, Inc v Dep’t of Treasury, 464 Mich 548, 557-558; 629 NW2d 402 (2001). Discussing the parameters of this standard, this Court in TIG stated: “Rational basis review does not test the wisdom, need, or appropriateness of the legislation, or whether the classification is made with ‘mathematical nicety,’ or even whether it results in some inequity when put into practice.” Crego v Coleman, 463 Mich 248, 260; 615 NW2d 218 (2000). Rather, it tests only whether the legislation is reasonably related to a legitimate governmental purpose. The legislation will pass “constitutional muster if the legislative judgment is supported by any set of facts, either known or which could reasonably be assumed, even if such facts may be debatable.” Id. at 259-260. To prevail under this standard, a party challenging a statute must overcome the presumption that the statute is constitutional. Thoman v Lansing, 315 Mich 566, 576; 24 NW2d 213 (1946). [TIG Ins Co, 464 Mich at 557-558.] City of North Muskegon v Miller, 249 Mich 52, 58; 227 NW 743 (1929). Kropf v Sterling Hts, 391 Mich 139, 158; 215 NW2d 179 (1974). Moreland v Armstrong, 297 Mich 32, 35; 297 NW 60 (1941). See City of North Muskegon, 249 Mich 52; Moreland, 297 Mich 32; Pere Marquette R Co v Muskegon Twp Bd, 298 Mich 31; 298 NW 393; Pringle v Shevnock, 309 Mich 179; 14 NW2d 827 (1944); Hammond v Bloomfield Hills Bldg Inspector, 331 Mich 551; 50 NW2d 155 (1951); Fenner v City of Muskegon, 331 Mich 732; 50 NW2d 210 (1951); Anchor Steel & Conveyor Co v City of Dearborn, 342 Mich 361; 70 NW2d 763 (1955); Detroit Edison Co v City of Wixom, 382 Mich 673; 172 NW2d 382 (1969); Kropf, 391 Mich 139; Bevan v Brandon Twp, 438 Mich 385; 475 NW2d 37 (1991). See also Village of Belle Terre v Boraas, 416 US 1; 94; S Ct 1536; 39 L Ed 2d 1536 (1974); Williamson v Lee Optical of Oklahoma, 348 US 483; 75 S Ct 461; 99 L Ed 563 (1955); Penn Central Transp Co v City of New York, 438 US 104; 98 S Ct 2646; 57 L Ed 2d 631 (1978); Schad v Borough of Mount Ephraim, 452 US 61; 101 S Ct 2176; 68 L Ed 2d 671 (1981); Reno, 507 US 292. Austin v Tennessee, 179 US 343, 349; 21 S Ct 132; 45 L Ed 224 (1900). See MCL 125.486. That the City’s legitimate interest in protecting its citizens from unsafe and dangerous structures might be equally advanced by demolition and by repairing the property at issue does not sever the reasonableness between BCO § 18-59 and the City’s permissible legislative objective. To affirm the lower courts’ conclusion to the contrary would appear to subject the City’s demolition process to heightened scrutiny by requiring that BCO § 18-59 be narrowly tailored to minimize the denial of a repair option. Of course, narrow tailoring is not required here because fundamental rights are not involved. For a property interest to be protected pursuant to the Due Process Clause, a claimant must have “a legitimate claim of entitlement” to the property interest, not simply “a unilateral expectation of it.” Williams v Hofley Mfg Co, 430 Mich 603, 610; 424 NW2d 278 (1988), quoting Roth, 408 US at 577. The Court of Appeals’ reliance on several nonbinding decisions from other jurisdictions for their “general due process analys[e]s,” Bonner, 298 Mich App at 727, provides nominal, if any, support for its holding that BCO § 18-59, on its face, violates due process. Indeed, both Horton v Gulledge, 277 NC 353, 360; 177 SE2d 885 (1970), overruled in part on other grounds by State v Jones, 305 NC 520; 290 SE2d 675 (1982), and Johnson v City of Paducah, 512 SW2d 514, 516 (Ky, 1974), involve as-applied challenges, not facial challenges. Nor do the cases relied on by the Court of Appeals assist us in resolving the specific inquiry whether BCO § 18-59 is facially violative of substantive due process, since Horton, 277 NC 353, Horne v City of Cordele, 140 Ga App 127; 230 SE2d 333 (1976), Herrit v Code Mgmt Appeal Bd of City of Butler, 704 A2d 186 (1997), and Washington v City of Winchester, 861 SW2d 125 (Ky App, 1993), do not specifically consider a local demolition ordinance in the context of substantive due process. Furthermore, Horton, Herrit, and Horne all involve takings claims, and, unlike the rebuttable unreasonable-to-repair presumption in BCO § 18-59, the ordinances at issue in both Horton and Johnson were held unconstitutional on the basis that they required demolition if the cost to repair an unsafe structure exceeded a certain no-repair cost threshold. In contrast, nothing in BCO § 18-59 expressly provides that the unreasonable-to-repair presumption is irrebuttable. Indeed, had the legislative body intended to make demolition the unavoidable result upon incidence of the unreasonahle-to-repair presumption, it certainly could have drafted BCO § 18-59 to make that result explicit. However, under the plain language of the ordinance, demolition is permissive. Consequently, to read BCO § 18-59 as creating an irrebuttable presumption would impermissibly render a portion of the ordinance surplusage in violation of the rules of statutory construction. See Pittsfield Charter Twp v Washtenaw Co, 468 Mich 702, 714; 664 NW2d 193 (2003). Brae Burn, Inc v Bloomfield Hills, 350 Mich 425, 432; 86 NW2d 166 (1957). Bonner, 298 Mich App at 714. These include a structure that became unsafe as a result of an event beyond the owner’s control, including, hut not limited to, fire, windstorm, tornado, flood, or other act of God. See Cleveland Bd of Ed v Loudermill, 470 US 532, 538; 105 S Ct 1487; 84 L Ed 2d 494 (1985). Mullane v Central Hanover Bank & Trust Co, 339 US 306, 313; 70 S Ct 652; 94 L Ed 865 (1950). Armstrong v Manzo, 380 US 545, 552; 85 S Ct 1187; 14 L Ed 2d 62 (1965). Mathews, 424 US at 334-335. See also Goldberg v Kelly, 397 US 254, 263-271; 90 S Ct 1011; 25 L Ed 2d 287 (1970). BCO § 18-52(c) prescribes the specific notice contents and provides in its entirety: The notice shall: (1) Be in writing; (2) Include a description of the real estate sufficient for identification; (3) Specify the repairs and improvements required to be made to render the structure safe or if the city manager, or his designee, has determined that the structure cannot be made safe, indicate that the structure is to be demolished; (4) Specify a reasonable time within which the repairs and improvements must be made or the structure must be demolished; (5) Include an explanation of the right to appeal the decision to the city council within ten calendar days of receipt of the notice in accordance with section 18-61; (6) Include a statement that the recipient of the notice must notify the city manager within ten calendar days of receipt of the notice of his intent to accept or reject the terms of the notice. BCO § 18-61. Id. BCO § 18-63. In any event, however, there is no question that the building official made a determination that the structures at issue were unsafe and that it was unreasonable to repair them, that he served plaintiffs with written notice of these determinations, and that the notice included the requisite contents. Bonner, 298 Mich App at 716. Joint Anti-Fascist Refugee Comm v McGrath, 341 US 123, 171-172; 71 S Ct 624; 95 L Ed 817 (1951) (Frankfurter, J., concurring). Goldberg v Kelly, 397 US at 268-269. See Loudermill, 470 US at 542. BCO § 18-61. As previously noted, if the city manager determines that a structure is “unsafe” and that the costs to repair that structure would exceed 100 percent of the structure’s pre-deteriorated true cash value, it will he presumed under BCO § 18-59 that such repairs are unreasonable. The appeal to the city council afforded by BCO § 18-61 is thus the property owner’s opportunity to rebut the unreasonable-to-repair presumption by showing that repairs are reasonable. Clearly, then, the same reasonableness standard necessary to rebut the unreasonable-to-repair presumption applicable to BCO § 18-59 also applies to an appeal before the city council pursuant to BCO § 18-61. Dearborn Twp v Dail, 334 Mich at 680. To this end, plaintiffs further contend that the appellate process was constitutionally deficient because plaintiffs did not receive a decision from an impartial decision-maker given that, according to plaintiffs, the city council is part of the same group that enacted the ordinance in the first place. We reject this argument for the simple reason that it overlooks the fact that a city council is authorized to exercise legislative and administrative functions and that the administrative function may include quasi-judicial powers. See, e.g., Babcock v Grand Rapids, 308 Mich 412, 413; 14 NW2d 48 (1944); Prawdzik v Grand Rapids, 313 Mich 376, 390-391; 21 NW2d 168 (1946); and In re Payne, 444 Mich 679, 708, 720; 514 NW2d 121 (1994). Plaintiffs’ bare assertion that the city council is somehow not impartial is therefore untenable.
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CAVANAGH, J. This case requires us to consider the interplay between MCL 722.954a and MCL 712A.19c. Specifically, we must determine whether the preference for placement with relatives created by MCL 722.954a is relevant to a court’s consideration of a petition to appoint a guardian under MCL 712A.19c(2). Because we conclude that the two statutes apply at different and distinct stages of child protective proceedings, we hold that there is no preference for placement with relatives as part of a guardianship determination under MCL 712A.19c(2). Accordingly, because the Court of Appeals in this case applied a preference in favor of creating a guardianship with a relative in support of its decision to reverse the trial court, we conclude that the Court of Appeals erred. Therefore, we reverse the Court of Appeals and remand to that Court to consider issues not previously addressed. I. FACTS AND PROCEDURAL HISTORY In February 2008, the Department of Human Services (DHS) removed COH, ERH, JRG, and KBH from their mother’s care under MCL 712A.2(b). The children were initially placed in two separate foster homes; however, in October 2008, all of the children were placed in their current foster home, with Holy Cross Children’s Services supervising the placement. At the December 12, 2008, review hearing, the DHS expressed its intent to seek termination of the mother’s and both fathers’ parental rights, and, in March 2009, the DHS petitioned to terminate all parental rights. A dispositional hearing occurred in June 2009, and the trial court terminated the fathers’ parental rights but did not terminate the mother’s parental rights. The trial court concluded that grounds existed to terminate the mother’s rights, but that termination of her parental rights was not in the children’s best interests at that time. One of the exhibits offered during the dispositional hearing was a letter dated June 2, 2009, written to the trial court by appellant Lori Scribner, who is the paternal biological grandmother of COH, ERH, and KBH. Scribner requested that the trial court return the children to the mother and stated that if the children were not returned to their mother, Scribner “would like to petition the court for guardianship and would like information on how to proceed.” In July 2010, the DHS again petitioned to terminate the mother’s parental rights. Scribner moved to intervene and to be appointed the children’s juvenile guardian under MCL 712A.19c(2) and MCR 3.979. The prosecutor and the mother agreed that the mother would plead no contest to the allegations that she was unable to provide proper care and custody for the children, that it was in the children’s best interests to terminate the mother’s rights, and, if the plea was accepted, the prosecutor would agree that the children not be committed to the Michigan Children’s Institute (MCI) until the trial court ruled on Scribner’s guardianship petition. The trial court accepted the mother’s plea under these conditions. On August 26, 2010, the trial court held a guardianship hearing. At the hearing, Scribner testified that she had lived in Florida since 2005. Scribner also testified that she had frequent contact with the children before moving to Florida, that she traveled to Michigan in the summer of 2007 to visit the children, and that she continued to have contact with the children after they were removed from the mother’s care in February 2008. However, Scribner testified that, in her opinion, Holy Cross frustrated her efforts to contact the children after the children were placed in their current foster home in October 2008. Regarding her efforts to have the children placed in her home, Scribner testified that she began the process “a few months after” the children were removed from the mother’s care. Because Scribner was living in a two-bedroom apartment, she also began looking for a larger home to accommodate the children, but she did not purchase the home until July 2009 and did not move into the home immediately. Scribner also testified that she visited the children in Michigan during the summer of 2010. As part of the guardianship decision process, the trial court permitted the children to visit Scribner in Florida for Thanksgiving and Christmas in 2010. A February 2011 evidentiary hearing regarding Scribner’s motion for a guardianship included, among other things, testimony from multiple witnesses about the children’s visits to Florida and the foster parents’ living arrangements and parenting methods, some of which were incompatible with Holy Cross’s procedures. Ultimately, the trial court denied Scribner’s guardianship petition. In making the guardianship decision, the trial court applied the best-interest factors from the Child Custody Act, MCL 722.21 et seq., and determined that it was in the children’s best interests to remain with their foster parent^, who had petitioned to adopt the children. Accordingly, the trial court committed the children to the DHS under MCL 400.203 for permanency planning, supervision, and care and placement. Scribner requested consent from the MCI superintendent to adopt the children, but the superintendent denied the request, finding that adoption by the foster parents was in the children’s best interests. Scribner filed a motion with the trial court under MCL 710.45(2), alleging that the superintendent’s decision was arbitrary and capricious. The trial court denied the motion. Scribner appealed by leave granted in the Court of Appeals, which reversed the trial court’s denial of Scribner’s petition for guardianship. In re COH., ERB, JRG & KBH, Minors, unpublished opinion per curiam of the Court of Appeals, issued June 25, 2013 (Docket Nos. 309161 and 312691). The Court of Appeals concluded that the trial court “failed to recognize the preference for children to be placed with relatives” and determined that “had the trial court recognized this preference and then given [Scribner] the special preference and consideration that she was due as the children’s grandmother, the court would have granted the guardianship petition.” Unpub op at 5. The Court of Appeals did not address Scribner’s appeal of the denial of consent to adopt, finding the issue moot under its disposition of the case. We granted the DHS’s application for leave to appeal. 495 Mich 870 (2013). II. STANDARD OF REVIEW This Court reviews de novo issues of statutory interpretation. Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008). “A court’s factual findings underlying the application of legal issues are reviewed for clear error.” In re Morris, 491 Mich 81, 97; 815 NW2d 62 (2012). III. ANALYSIS This case involves the removal of juveniles from the care of their biological parents. As explained in In re Rood, 483 Mich 73, 93; 763 NW2d 587 (2009), the overarching goals guiding the juvenile code, MCL 712A.1 et seq., are established in MCL 712A.1(3): This chapter shall be liberally construed so that each juvenile coming within the court’s jurisdiction receives the care, guidance, and control, preferably in his or her own home, conducive to the juvenile’s welfare and the best interest of the state. If a juvenile is removed from the control of his or her parents, the juvenile shall be placed in care as nearly as possible equivalent to the care that should have been given to the juvenile by his or her parents. See, also, MCR 3.902(B). A. LEGAL BACKGROUND Child protective proceedings are generally divided into the adjudicative and the dispositional phases. “The adjudicative phase determines whether the ... court may exercise jurisdiction over the child,” In re Brock, 442 Mich 101, 108; 499 NW2d 752 (1993), and includes “a preliminary hearing at which the court may authorize a petition for removal of a child from his home, MCL 712A.13a(2),” In re Mason, 486 Mich 142, 154; 782 NW2d 747 (2010). If the court acquires jurisdiction, the dispositional phase determines what action, if any, will be taken on behalf of the child. In re Brock, 442 Mich at 108. The dispositional phase includes “review hearings to evaluate the child’s and parents’ progress, MCL 712A.19, permanency planning hearings, MCL 712A.19a, and, in some instances, a termination hearing, MCL 712A.19b.” In re Mason, 486 Mich at 154. Additionally, MCL 712A.19c establishes the procedures applicable when a child remains in a placement after termination of parental rights. When a child is removed from a parent’s care during the adjudication phase under MCL 712A.2(b), as in this case, “the court shall order the juvenile placed in the most family-like setting available consistent with the juvenile’s needs.” MCL 712A.13a(12). The “agency,” which was the DHS in this case, must complete an initial services plan within 30 days of the child’s placement. MCL 712A.13a(10)(a). As part of the initial services plan, the DHS is required to comply with MCL 722.954a(2), which, at the times relevant to this case, stated: a public or private organization, institution, or facility that is performing the functions under part D of title IV of the social security act, 42 USC 651 to 669b, or that is responsible under court order or contractual arrangement for a juvenile’s care and supervision. [MCL 712A.13a(l)(a).] Upon removal,... the supervising agency shall, within 30 days, identify, locate, and consult with relatives to determine placement with a fit and appropriate relative who would meet the child’s developmental, emotional, and physical needs as an alternative to foster care. [Emphasis added.][ ] The DHS is also required, under former MCL 722.954a(2), to meet the following requirements not more than 90 days after the child’s removal: (a) Make a placement decision and document in writing the reason for the decision. (b) Provide written notice of the decision and the reasons for the placement decision to ... each relative who expresses an interest in caring for the child .... Finally, former MCL 722.954a(3) provides for review of the DHS’s decision: A person who receives a written decision described in subsection (2) may request in writing, within 5 days, documentation of the reasons for the decision, and if the person does not agree with the placement decision, he or she may request that the child’s attorney review the decision to determine if the decision is in the child’s best interest. If the child’s attorney determines the decision is not in the child’s best interest, within 14 days after the date of the written decision the attorney shall petition the court that placed the child out of the child’s home for a review hearing. The court shall commence the review hearing not more than 7 days after the date of the attorney’s petition and shall hold the hearing on the record. In this case, Scribner seeks a juvenile guardianship under MCL 712A.19c, which applies during the dispositional phase of child protective proceedings and states in relevant part: (1) [I]f a child remains in placement following the termination of parental rights to the child, the court shall conduct a review hearing not more than 91 days after the termination of parental rights and no later than every 91 days after that hearing for the first year following termination of parental rights to the child. If a child remains in a placement for more than 1 year following termination of parental rights to the child, a review hearing shall be held no later than 182 days from the immediately preceding review hearing before the end of the first year and no later than every 182 days from each preceding review hearing thereafter until the case is dismissed.... At a hearing under this section, the court shall review all of the following: (a) The appropriateness of the permanency planning goal for the child. (b) The appropriateness of the child’s placement. (c) The reasonable efforts being made to place the child for adoption or in other permanent placement in a timely manner. (2) [I]f the court determines that it is in the child’s best interests, the court may appoint a guardian for the child. (14) This section applies only to a child’s case in which parental rights to the child were ... terminated as the result of a proceeding under section 2(b) of this chapter .... This section applies as long as the child is subject to the jurisdiction, control, or supervision of the court or of the Michigan children’s institute or other agency. [Emphasis added.] B. INTERPLAY BETWEEN MCL 722.954a AND MCL 712A.19c When interpreting statutes, “our primary task... is to discern and give effect to the intent of the Legislature.” Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999) (citations omitted). To accomplish that task, we begin by examining the language of the statute itself. Id. (citation omitted). “If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written.” Id. (citation omitted). The plain language of MCL 722.954a and MCL 712A.19c establishes that the two statutes apply at different stages of child protective proceedings. Specifically, MCL 722.954a(2) provides that “[u]pon removal” DHS has a duty to “identify, locate, and consult with relatives to determine placement with a fit and appropriate relative who would meet the child’s developmental, emotional, and physical needs” and that duty must be satisfied “within 30 days” of removal. Accordingly, MCL 722.954a applies from the moment a child is removed from his or her parents’ care, i.e., before any placement decision is made, and, consequently, the requirements of MCL 722.954a are intended to guide the DHS’s initial placement decision. The preference for placement with relatives is also expressly preserved throughout the review process established in former MCL 722.954a(2) and (3). Specifically, subsection (2)(b) requires the DHS to make an initial placement decision within 90 days of removal and “[provide written notice of the decision and the reasons for the placement decision to ... each relative who expresses an interest in caring for the child ...Additionally, subsection (3) permits a relative who receives notice to request an explanation of the decision and potentially obtain a review hearing if the person does not agree with the placement decision. However, the review process is limited to a narrow time period: the request for documentation of the reasons for the placement decision must be made within 5 days of receiving the placement decision, the potential petition for a review hearing must be made within 14 days of the written decision, and the review hearing must be held within 7 days after the petition. MCL 722.954a(3). Thus, there is no indication within the statutory language of MCL 722.954a that the Legislature intended that the preference for placement with relatives exists beyond the time frame identified within MCL 722.954a. Similarly, the plain language of MCL 712A.19c expressly limits the statute’s applicability only to instances in which “a child remains in placement following the termination of parental rights ....” MCL 712A.19c(l) (emphasis added). Thus, the plain language of MCL 712A.19c establishes that the statute only applies after termination of parental rights, which occurs after the DHS makes the initial placement decision regulated by MCL 722.954a. Although when considered in isolation MCL 712A.19c(2) does not expressly state that the court’s authority to appoint a guardian under that subsection is limited to the posttermination stage of child protective proceedings, we must consider the subsection’s “placement and purpose in the statutory scheme.” Sun Valley Foods Co, 460 Mich at 237 (quotation marks and citation omitted). As established, the subsection immediately preceding subsection (2) expressly limits the statute’s appli cability to the posttermination stage. Moreover, subsection (14) expressly provides that “[t]his section,” meaning section 19c, “applies only to a child’s case in which parental rights to the child were ... terminated____” Because the court’s authority to appoint a guardian under MCL 712A.19c(2) is part of section 19c, MCL 712A.19c(14) expressly limits its application to the post-termination stage of child protective proceedings. Additionally, MCL 712A.19a establishes the process for appointing a guardian before termination of parental rights. Specifically, MCL 712A.19a(7) provides that [i]f the agency demonstrates ... that initiating the termination of parental rights to the child is clearly not in the child’s best interests, or the court does not order the agency to initiate termination of parental rights to the child... then the court shall order 1 or more of the following alternative placement plans: (c) ... [i]f the court determines that it is in the child’s best interests, appoint a guardian for the child, which guardianship may continue until the child is emancipated. Because the Legislature enacted separate statutes that create distinct processes for appointing a guardian before and after termination of parental rights, we must interpret those statutes in a way that avoids rendering either statute surplusage. Whitman v City of Burton, 493 Mich 303, 311-312; 831 NW2d 223 (2013). We conclude that the process for appointing a guardian under MCL 712A.19c(2) is only applicable at the post-termination stage of a child protective proceeding. Finally, MCL 712A.19c(2) does not refer to MCL 722.954a, nor does it refer to “relatives,” which bolsters the conclusion that the preference for placement with relatives created in MCL 722.954a does not apply outside the time period for determining a child’s initial placement immediately after removal and, therefore, does not apply to a court’s decision to appoint a guardian under MCL 712A.19c(2) after parental rights are terminated. Accordingly, although the Court of Appeals accurately concluded that MCL 722.954a creates a statutory preference for placement with relatives, the plain language of MCL 722.954a limits the applicability of the preference to only the initial stage of the process, i.e., immediately after a child is removed from his or her parents’ care and during the statutory review period established in MCL 722.954a(3). Therefore, we agree with the Court of Appeals’ conclusion in In re AEG & LEG, unpublished opinion per curiam of the Court of Appeals, issued November 7, 2013 (Docket No. 316599), that the plain language of MCL 722.954a “indicates that the Legislature intended the statute to provide procedural requirements where a child is removed pursuant to a child protective proceeding,” but that there “is no indication that [MCL 722.954a] was intended to apply to . . . decisions after termination,” which includes a court’s decision regarding a guardianship petition under MCL 712A.19c(2). C. INTERPRETATION OF MCL 712A.19c Having established that MCL 712A.19c applies after termination of parental rights and does not include a preference for creating a guardianship with a relative, we must now determine what a trial court must do to satisfy MCL 712A.19c(2). The plain language of the statute simply provides that the trial court may appoint a guardian “if the court determines that [a guardianship] is in the child’s best interests[.]” MCL 712A.19c(2). As previously discussed, the trial court applied the best-interest factors from the Child Custody Act, MCL 722.23; however, Scribner argues, and the Court of Appeals agreed, that the best-interest factors in the Adoption Code, MCL 710.22(g), should apply to a guardianship decision under MCL 712A.19c(2). Therefore, the Court of Appeals concluded that the trial court erred by using the Child Custody Act factors to compare Scribner and the foster parents. In order to define the proper method for determining whether a guardianship is in the child’s best interest, we must first interpret MCL 712A.19c(2). Issues of statutory interpretation are reviewed de novo. Ambassador Bridge Co, 481 Mich at 35. The plain language of MCL 712A.19c(2) does not expressly require application of any particular set of factors; rather, the statute simply requires the court to base its decision whether to appoint a guardian on “the child’s best interests.” Because MCL 712A.19c(2) does not direct a court to apply certain factors or otherwise limit a court’s method for determining the child’s best interests, the statute grants the court discretion regarding how to determine what is in the child’s best interests depending on the case-specific circumstances. See Easton Sch Dist No 4 v Snell, 24 Mich 350, 353 (1872) (holding that when a statute grants a power “in general terms,” the statute “leaves the details to the sound discretion” of the entity to whom the power is granted). Because MCL 712A.19c(2) grants the trial court discretion in determining whether a guardianship is in the child’s best interest, a trial court’s decision regarding what factors to consider in making the best-interest determination is reviewed for an abuse of discretion. “An abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes.” Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). A trial court may use its discretion under MCL 712A.19c(2) to determine the best method for analyzing the child’s best interests by considering the circumstances relevant to the particular case. The Adoption Code factors are a logical decision-making tool when only one party petitions for a guardianship, because the court need not compare the petitioning party to any other party. Rather, determining whether the guardianship is in the child’s best interests depends solely on whether a guardianship with the petitioning party is in the child’s best interests. Moreover, a juvenile guardianship has many characteristics that are similar to an adoption. Thus, the Adoption Code factors provide a useful list of considerations that may be relevant to a guardianship decision, and trial courts may therefore be led to apply the Adoption Code factors in deciding some, or perhaps many, petitions for guardianship. However, neither the statutory language of MCL 712A.19c(2) nor the similarities between a guardianship and an adoption require application of the Adoption Code factors to all guardianship petitions, as the Court of Appeals suggests. Rather, depending on the circumstances, a case may more reasonably lend itself to application of the Child Custody Act factors, some combination of the Adoption Code and Child Custody Act factors, or a unique set of factors developed by the trial court for purposes of a particular case. Finally, we must review the trial court’s findings of fact regarding the best-interest determination, which are subject to the clear-error standard on appeal. See MCR 2.613(C). See, also, In re BKD, 246 Mich App 212, 219; 631 NW2d 353 (2001) (applying the clear-error standard to the trial court’s findings of fact regarding the best-interest factors in the Adoption Code). “A finding is ‘clearly erroneous’ if although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.” In re Mason, 486 Mich at 152 (quotation marks, brackets, and citation omitted). Thus, under the clear-error standard, “a reviewing court should not substitute its judgment on questions of fact unless the factual determination clearly preponderates in the opposite direction.” Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010) (quotation marks, brackets, and citations omitted). D. APPLICATION Because we conclude that MCL 722.954a and MCL 712A.19c apply at different stages of child protective proceedings, we conclude that the requirements of MCL 722.954a have no bearing on a trial court’s decision regarding a guardianship petition under MCL 712A.19c. Thus, we conclude that the Court of Appeals erroneously held that, as a relative of the children, Scribner was entitled to a preference as part of her petition for a guardianship under MCL 712A.19c. However, that conclusion does not necessarily mandate that we affirm the trial court’s decision to deny Scribner’s guardianship petition. Rather, we must also consider whether the trial court abused its discretion when it selected the Child Custody Act’s best-interest factors rather than some other set of factors to determine whether the guardianship was in the children’s best interests. Additionally, we must consider whether the trial court clearly erred in its findings of fact regarding the children’s best interests under MCL 712A.19c. We conclude that the trial court did not abuse its discretion by applying the best-interest factors from the Child Custody Act. In this case, the trial court was faced with two placement options for the children; therefore, logic required the trial court to compare the two options in order to determine which placement was in the children’s best interest. Under these circumstances, such a comparison was necessary because, although both placement options may be qualified to meet the children’s needs, only one of the placement options can truly be in the children’s best interests. Because the Child Custody Act factors incorporate a comparative analysis, and because comparison of the two placement options in this case was a logical method for determining which option was in the children’s best interests, the trial court’s decision to apply those factors rather than the Adoption Code factors was not an abuse of discretion. We likewise conclude that the trial court did not clearly err in its application and findings of fact related to the Child Custody Act’s best-interest factors to decide Scribner’s petition for a guardianship under MCL 712A.19c. The trial court accurately emphasized that “the paramount concern is what is best for the children.” The trial court concluded that the children had developed a strong bond with the foster parents, while only JRG displayed a similar bond with Scribner. The trial court concluded that the foster parents had demonstrated the capacity to give the children love and guidance whereas Scribner expressed a desire to do so, but had not demonstrated the ability to do so, given that she had not cared for the children for a significant period of time. The trial court determined that Scribner had a superior financial ability to support the children, but that the foster parents also had sufficient income to support the children financially. The trial court also determined that the children’s stability with the foster parents and desirability of maintaining that stability “overwhelmingly]” favored denying the guardianship. The trial court acknowledged that Scribner could have provided similar stability given the opportunity, but it would be improper to focus on “what may be fair for” Scribner rather than “the best interests of the children.” The trial court likewise found the children’s school record to be a compelling reason to deny the guardianship. The trial court recognized that the school district where Scribner lived was highly regarded, but the court noted that the children made “significant progress in their school performances” while with the foster parents. Accordingly, the trial court stated, “[h]ow uprooting them and changing schools would serve their best interests is highly questionable.” The trial court recognized that significant testimony was devoted to the children’s preference and concluded that JRG was agreeable to either outcome, while COH, ERH, and KBH were “decidedly in favor of remaining in their existing placement [with the foster parents] on a per manent basis.” Acknowledging that the children’s preference had already been overridden when they were removed from the care of their biological parents, the trial court determined that it was not in the children’s best interest to again ignore their preference, particularly when that preference was for what the trial court determined to be a “stable, loving, secure, and trustworthy home .. . .” Finally, the trial court lamented its conclusion that neither the foster parents nor Scribner seemed willing to encourage a relationship with the other party. Overall, we are not left with the definite and firm conviction that a mistake was made in assessing the facts relevant to the children’s best interests and, thus, we conclude that the trial court’s best-interest determination was not clearly erroneous. First, the trial court provided an individualized analysis based on the relevant evidence for each of the applicable factors. Second, the trial court did not take a one-sided view of the evidence; rather, the court weighed evidence that favored each placement option and acknowledged that Scribner could likely provide a stable and caring environment for the children if given the opportunity. The trial court also recognized that its decision to deny the guardianship could appear unfair to Scribner. However, the trial court correctly explained that its focus remained on the children’s best interests, as required by law. See MCL 712A.19c(2). Finally, the Court of Appeals’ conclusion that the trial court erred by denying Scribner’s petition for guardianship under MCL 712A.19c(2) was largely rooted in its erroneous conclusion that Scribner was entitled to a preference because of her status as a relative. However, as previously established, the Court of Appeals erroneously interpreted MCL 722.954a and MCL 712A.19c. Because there is no statutory preference for creating a guard ianship with a relative under MCL 712A.19c(2), the entirety of the Court of Appeals’ review of the trial court’s best-interest determination is severely undercut. Accordingly, we conclude that the Court of Appeals erroneously substituted its judgment for the trial court’s judgment on questions of fact. Additionally, we conclude that the trial court did not clearly err in concluding that a guardianship with Scribner was not in the children’s best interests under MCL 712A.19c(2). IV CONCLUSION We hold that MCL 722.954a creates a preference for placement with relatives, but that preference does not apply to a court’s decision regarding whether to appoint a guardian under MCL 712A.19c(2). We further hold that, in deciding whether to appoint a guardian, a court must determine whether the guardianship is in the child’s best interests, and to do so the court may consider the best-interest factors from the Child Custody Act, the Adoption Code, or any other factors that may be relevant under the circumstances of a particular case. Because the Court of Appeals erroneously concluded that a preference for placement with relatives exists under MCL 712A.19c(2) and substituted its judgment for the trial court’s on questions of fact regarding the children’s best interests, we reverse the Court of Appeals judgment and remand to that Court to consider Scribner’s appeal of the MCI Superintendent’s denial of consent to adopt the children. Young, C.J., and Markman, Kelly, Zahra, McCormack, and Viviano, JJ., concurred with Cavanagh, J. JRG does not have the same biological father as COH, ERH, and KBH. Holy Cross’s foster care worker also testified that Scribner first expressed an interest in a guardianship in May 2009. Testimony established that the foster parents at times required the children to run laps around the house or consume fish oil and Tabasco sauce as punishment. The foster father testified that the foster parents discontinued those discipline methods at Holy Cross’s request. “Agency” is defined as The Legislature amended MCL 722.954a, effective December 14, 2010. 2010 PA 265. Because the trial court decided the issues relevant to the children’s initial placement before December 14, 2010, we analyze this case under the statutory provisions in effect when the trial court decided the issues and, as a result, the statutory citations in this opinion may not correspond to the amended version of MCL 722.954a. The court rules likewise reflect the fact that the statutory scheme creates different processes for appointing a guardianship that apply at different stages of child protective proceedings. Specifically, MCR 3.979(A) states: Appointment of Juvenile Guardian; Process. If the court determines at a posttermination review hearing or a permanency planning hearing that it is in the child’s best interests, the court may appoint a juvenile guardian for the child pursuant to MCL 712A.19a or MCL 712A.19c. [Emphasis added.] Thus, MCR 3.979(A) recognizes that a court may appoint a guardian at a posttermination review hearing, which is governed by MCL 712A.19c, or at a permanency planning hearing, which is governed by MCL 712A.19a. As noted, the Legislature amended MCL 722.954a, effective December 14, 2010. 2010 PA 265. We also note that as part of the 2010 amendments, the Legislature added MCL 722.954a(5), which expressly requires the DHS to “give special consideration and preference to a child’s relative or relatives who are willing to care for the child, are fit to do so, and would meet the child’s developmental, emotional, and physical needs” and requires the DHS to do so “[blefore determining placement of a child” in the DHS’s care. Emphasis added. Accordingly, although we do not expressly apply subsection (5) in this case, we note that our analysis is not inconsistent with this new statutory language, because subsection (5) expressly applies before the initial placement decision is made. MCL 722.23 states: As used in this act, “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court: (a) The love, affection, and other emotional ties existing between the parties involved and the child. (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any. (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs. (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. (e) The permanence, as a family unit, of the existing or proposed custodial home or homes. (f) The moral fitness of the parties involved. (g) The mental and physical health of the parties involved. (h) The home, school, and community record of the child. (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference. (j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child. (l) Any other factor considered by the court to be relevant to a particular child custody dispute. MCL 710.22(g) states: “Best interests of the adoptee” or “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court to be applied to give the adoptee permanence at the earliest possible date: (i) The love, affection, and other emotional ties existing between the adopting individual or individuals and the adoptee or, in the case of a hearing under [MCL 710.39], the putative father and the adoptee. Hi) The capacity and disposition of the adopting individual or individuals or, in the case of a hearing under [MCL 710.39], the putative father to give the adoptee love, affection, and guidance, and to educate and create a milieu that fosters the religion, racial identity, and culture of the adoptee. (:Hi) The capacity and disposition of the adopting individual or individuals or, in the case of a hearing under [MCL 710.39], the putative father, to provide the adoptee with food, clothing, education, permanence, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs. (iv) The length of time the adoptee has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. (v) The permanence as a family unit of the proposed adoptive home, or, in the case of a hearing under [MCL 710.39], the home of the putative father. (vi) The moral fitness of the adopting individual or individuals or, in the case of a hearing under [MCL 710.39], of the putative father. (uii) The mental and physical health of the adopting individual or individuals or, in the case of a hearing under [MCL 710.39], of the putative father, and of the adoptee. {viii) The home, school, and community record of the adoptee. (ix) The reasonable preference of the adoptee, if the adoptee is 14 years of age or less and if the court considers the adoptee to be of sufficient age to express a preference. (x) The ability and willingness of the adopting individual or individuals to adopt the adoptee’s siblings. (xi) Any other factor considered by the court to be relevant to a particular adoption proceeding, or to a putative father’s request for child custody. In this regard, we note that the Child Custody Act and the Adoption Code factors permit a court to consider “[a]ny other factor considered by the court to be relevant[.]” MCL 722.23(0; MCL 710.22(g)Crz). Thus, although MCL 712A.19c(2) does not create an overarching preference for creating a guardianship with a relative, the statute nevertheless permits a trial court to consider familial ties in determining whether the guardianship is in the child’s best interests. However, we stress that if a court concludes that familial ties are relevant to the guardianship decision under MCL 712A.19c(2), the familial relationship is only a factor that must he balanced among all the other relevant factors — it does not give rise to a presumption in favor of creating a guardianship. Cases in which this Court reviewed the trial court’s factual findings underlying its best-interest determination for whether they were against the great weight of the evidence did so under MCL 722.28, which does not apply here. Although our grant order directed the parties to address whether Scribner “was entitled to [a] preference [for placement with relatives] where her son’s parental rights to the children had been terminated,” 495 Mich at 870, that question is dependent on holding that a preference for placement with relatives applies to MCL 712A.19c(2). Because we conclude that no such preference exists, we need not consider the impact of the termination of parental rights on a grandparent’s status as a relative under MCL 722.954a(2). Application of the Child Custody Act hest-interest factors outside the context of a custody dispute is not a novel approach in the area of juvenile law. For example, in In re Barlow, 404 Mich 216, 236; 273 NW2d 35 (1978), we concluded that consideration of the Child Custody Act factors “for guidance” was proper in the context of termination of parental rights and adoption cases. We recognize that In re Barlow was decided before specific hest-interest factors were added to the Adoption Code by amendment in 1980 and thus should not he interpreted as condoning the application of different factors in the face of a statutory requirement to do otherwise. However, In re Barlow is nevertheless instructive in this case, in which the Legislature has not elected to confine the court’s decision-making process regarding guardianships to a specific list of statutory factors. •
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McCormack, J. The Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., enacted pursuant to a voter initiative in November 2008, affords certain protections under state law for the medical use of marijuana in the state of Michigan. Among them is § 4(a) of the MMMA, which immunizes registered qualifying patients from “penalty in any manner” for specified MMMAcompliant medical marijuana use. MCL 333.26424(a). At issue here is the relationship between this immunity, the federal prohibition of marijuana under the controlled substances act (CSA), 21 USC 801 et seq., and a local zoning ordinance adopted by the city of Wyoming which prohibits and subjects to civil sanction any land “[u]ses that are contrary to federal law.” City of Wyoming Code of Ordinances, § 90-66. As set forth below, we agree with the Court of Appeals that the ordinance directly conflicts with, and is preempted by, § 4(a) of the MMMA, and that § 4(a) is not preempted by the federal CSA. Accordingly, we affirm the Court of Appeals’ judgment. I. FACTUAL AND PROCEDURAL BACKGROUND In 2010, approximately two years after the MMMA went into effect, defendant, the city of Wyoming (the City), adopted an ordinance (the Ordinance) amending the zoning chapter of the Wyoming city code to add the following provision: Uses 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. City of Wyoming Code of Ordinances, § 90-66. Under the city code, violations of the Ordinance constitute municipal civil infractions punishable by “civil sanctions, including, without limitation, fines, damages, expenses and costs,” City of Wyoming Code of Ordinances, § l-27(a) to (b), and are also subject to injunctive relief, City of Wyoming Code of Ordinances, § l-27(g). Plaintiff, John Ter Beek, lives in the City and is a qualifying patient under the MMMA who possesses a state-issued registry identification card. Upon the City’s adoption of the Ordinance, Ter Beek filed the instant lawsuit in circuit court. Ter Beek alleges that he wishes to grow, possess, and use medical marijuana in his home in accordance with the MMMA. The Ordinance, however, by its incorporation of the CSA’s federal prohibition of marijuana, prohibits and penalizes such conduct. This, Ter Beek contends, impermissibly contravenes § 4(a) of the MMMA, which provides that registered qualifying patients “shall not be subject to arrest, prosecution, or penalty in any manner... for the medical use of marihuana in accordance with” the MMMA. Accordingly, Ter Beek seeks a declaratory judgment that the Ordinance is preempted by the MMMA and a corresponding injunction prohibiting the City from enforcing the Ordinance against him for the medical use of marijuana in compliance with the MMMA. The parties filed cross-motions for summary disposition pursuant to MCR 2.116(C)(10), disputing whether the Ordinance is preempted by the MMMA and whether the MMMA is preempted by the CSA. The circuit court granted summary disposition in favor of the City, concluding that the MMMA is preempted by the CSA. Ter Beek appealed by right in the Court of Appeals, which reversed the circuit court’s grant of summary disposition in favor of the City and remanded the case for entry of summary disposition in favor of Ter Beek. Ter Beek v Wyoming, 297 Mich App 446; 823 NW2d 864 (2012). The Court of Appeals first concluded that the Ordinance directly conflicts with, and is thus preempted by, § 4(a) of the MMMA, because it purports to penalize the medical use of marijuana in contravention of § 4(a)’s grant of immunity from such penalties. The Court of Appeals then concluded that § 4(a) is not preempted by the federal CSA, reasoning that it is possible to comply with both statutes simultaneously and that § 4(a)’s state-law immunity for certain medical marijuana patients does not stand as an obstacle to the CSA’s federal regulation of marijuana use or to the federal enforcement of same. The City sought leave to appeal, which we granted, to address the questions of state and federal preemption. Ter Beek v Wyoming, 493 Mich 957 (2013). II. STANDARD OF REVIEW Whether § 4(a) of the MMMA preempts the Ordinance, and whether the CSA preempts § 4(a), are questions of law which we review de novo. Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008); Mich Coalition For Responsible Gun Owners v City of Ferndale, 256 Mich App 401, 405; 662 NW2d 864 (2003). We also review de novo the decision to grant or deny summary disposition, Spiek v Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998), and review for clear error factual findings in support of that decision, Ambassador Bridge, 481 Mich at 35. As we have recently explained, the intent of the electors governs the interpretation of voter-initiated statutes such as the MMMA, just as the intent of the Legislature governs the interpretation of legislatively enacted statutes. People v Bylsma, 493 Mich 17, 26; 825 NW2d 543 (2012). The first step when interpreting a statute is to examine its plain language, which provides the most reliable evidence of intent. If the statutory language is unambiguous, no further judicial construction is required or permitted because we must conclude that the electors intended the meaning clearly expressed. Id. III. ANALYSIS A. KEY PROVISIONS OF THE MMMA, THE CSA, AND THE ORDINANCE The questions of state and federal preemption in this case arise from the differing treatment of medical marijuana use under the MMMA and the CSA. As noted, § 4(a) of the MMMA provides, in relevant part: A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act.... [MCL 333.26424(a).] The MMMA defines “medical use” as “the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.” MCL 333.26423(f). The CSA, meanwhile, contains no such immunity. Rather, it makes it “unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 USC 841(a)(1). The CSA classifies marijuana as a Schedule I controlled substance, 21 USC 812(c)(c)(10), and thus largely prohibits its manufacture, distribution, or possession. The parties do not dispute that the Ordinance, by prohibiting all “[u]ses that are contrary to federal law,” incorporates the CSA’s prohibition of marijuana and makes certain violations of that prohibition both pun ishable by civil sanctions and subject to injunctive relief. Thus, an individual whose medical use of marijuana falls within the scope of § 4(a)’s immunity from “penalty in any manner” may nonetheless be subject to punishment under the Ordinance for that use. B. THE CSA DOES NOT PREEMPT § 4(a) OF THE MMMA As noted, the circuit court rejected Ter Beek’s challenge to the Ordinance because it held that § 4(a) of the MMMA is preempted by the CSA. The Court of Appeals disagreed. Although raised under the particular circumstances of this case as a defense, we address this question first, and hold that the CSA does not preempt § 4(a). Federal preemption of state law is grounded in the Supremacy Clause of the United States Constitution, US Const, art VI, cl 2, which “invalidates state laws that ‘interfere with, or are contrary to,’ federal law.” Hillsborough Co v Automated Med Labs, Inc, 471 US 707, 712; 105 S Ct 2371; 85 L Ed 2d 714 (1985), quoting Gibbons v Ogden, 22 US (9 Wheat) 1, 211; 6 L Ed 23 (1824). When a state law is preempted by federal law, the state law is “without effect.” Maryland v Louisiana, 451 US 725, 746; 101 S Ct 2114; 68 L Ed 2d 576 (1981). “ ‘[T]he purpose of Congress is the ultimate touchstone in every pre-emption case.’ ” Wyeth v Levine, 555 US 555, 565; 129 S Ct 1187; 173 L Ed 2d 51 (2009), quoting Medtronic, Inc v Lohr, 518 US 470, 485; 116 S Ct 2240; 135 L Ed 2d 700 (1996). Furthermore, “[i]n all preemption cases, and particularly in those in which Congress has legislated... in a field which the States have traditionally occupied, we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Wyeth, 555 US at 565 (citations and quotation marks omitted). See also Maryland, 451 US at 746 (“Consideration under the Supremacy Clause starts with the basic presumption that Congress did not intend to displace state law.”). The areas of public health and safety are among those traditionally left to the states. Gonzales v Oregon, 546 US 243, 270; 126 S Ct 904; 163 L Ed 2d 748 (2006). If the federal statute contains a clause expressly addressing preemption, “we ‘focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ preemptive intent.’ ” Chamber of Commerce v Whiting, 563 US_,_; 131 S Ct 1968, 1977; 179 L Ed 2d 1031 (2011), quoting CSX Transp, Inc v Easter-wood, 507 US 658, 664; 113 S Ct 1732; 123 L Ed 2d 387 (1993). Where such a clause is ambiguous, and the federal statute at issue pertains to an area of traditional state regulation, we “have a duty to accept the reading [of the clause] that disfavors pre-emption.” Bates v Dow Agrosciences LLC, 544 US 431, 449; 125 S Ct 1788; 161 L Ed 2d 687 (2005). Tie, in that case, goes to the state. With those principles in mind, we look to the CSA, which expressly provides: No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together. [21 USC 903.] Accordingly, in assessing whether § 4(a) of the MMMA is preempted by the CSA, the relevant inquiry 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, Mut Pharm Co, Inc v Bartlett, 570 US_,_; 133 S Ct 2466, 2473; 186 L Ed 2d 607 (2013), or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, Hillsborough, 471 US at 713. See also Wyeth, 555 US at 567-581 (applying this preemption standard to a federal statute providing that it did not preempt state law unless there was a “direct and positive conflict” between it and state law). We find neither such conflict here. First, we do not find it impossible to comply with both the CSA and § 4(a) of the MMMA. “Impossibility pre-emption is a demanding defense,” Wyeth, 555 US at 573, and requires more than “[t]he existence of a hypothetical or potential conflict,” Rice v Norman Williams Co, 458 US 654, 659; 102 S Ct 3294; 73 L Ed 2d 1042 (1982). Such impossibility results when state law requires what federal law forbids, or vice versa. See, e.g., Mut Pharm, 570 US at_; 133 S Ct at 2476-2477; PLIVA, Inc v Mensing, 564 US_,_; 131 S Ct 2567, 2577-2578; 180 L Ed 2d 580 (2011); Geier v American Honda Motor Co, Inc, 529 US 861, 873; 120 S Ct 1913; 146 L Ed 2d 914 (2000); Barnett Bank of Marion Co, NA v Nelson, 517 US 25, 31; 116 S Ct 1103; 134 L Ed 2d 237 (1996). The CSA criminalizes marijuana, making its manufacture, distribution, or possession a punishable offense under federal law. Section 4(a) of the MMMA does not require anyone to commit that offense, however, nor does it prohibit punishment of that offense under federal law. Rather, the MMMA is clear that, if certain individuals choose to engage in MMMA-compliant medical marijuana use, § 4(a) provides them with a limited state-law immunity from “arrest, prosecution, or penalty in any manner” — an immunity that does not purport to prohibit federal criminalization of, or punishment for, that conduct. See MCL 333.26427(a) (“The medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act.”); see also MCL 333.26422 (noting that “approximately 99 out of every 100 marihuana arrests in the United States are made under state law, rather than under federal law,” that “changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marihuana,” and that “[a]lthough federal law currently prohibits any use of marihuana except under very limited circumstances, states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law”). Nor, of course, could the MMMA prohibit such federal regulation and enforcement. See United States v Hicks, 722 F Supp 2d 829, 833 (ED Mich, 2010) (“It is indisputable that state medical-marijuana laws do not, and cannot, supercede federal laws that criminalize the possession of marijuana.”), citing, inter alia, Gonzales v Raich, 545 US 1, 29; 125 S Ct 2195; 162 L Ed 2d 1 (2005). The City objects that § 4(a) forces it, as well as the state of Michigan and every other municipality therein, to “ignore” the CSA. But that is not the precise question. While, as discussed at greater length below, § 4(a) does prevent the City from fully incorporating the CSA’s prohibition of marijuana into its own local enforcement scheme, it does not require that the City violate that federal prohibition. Neither does the CSA require that the City, or the state of Michigan, enforce that prohibition. In fact, it is well established that, “ ‘[e]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the states to require or prohibit those acts.’ ” Printz v United States, 521 US 898, 924; 117 S Ct 2365; 138 L Ed 2d 914 (1997), quoting New York v United States, 505 US 144, 166; 112 S Ct 2408; 120 L Ed 2d 120 (1992). We do not find it impossible to comply with both the CSA and § 4(a) of the MMMA. We likewise hold that § 4(a) does not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the CSA. Hillsborough, 471 US at 713. A state law presents such an obstacle to a federal law “ ‘[i]f the purpose of the [federal law] cannot otherwise be accomplished — if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect.’ ” Crosby v Nat’l Foreign Trade Council, 530 US 363, 373; 120 S Ct 2288; 147 L Ed 2d 352 (2000), quoting Savage v Jones, 225 US 501, 533; 32 S Ct 715; 56 L Ed 1182 (1912). As the United States Supreme Court has stated, “[w]hat is a sufficient obstacle is a matter of judgment,” to be assessed under the circumstances of the given case and “to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Crosby, 530 US at 373. According to the Supreme Court in Raich, “[t]he main objectives of the CSA were to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.” 545 US at 12. “To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA.” Id. at 13. As noted, in devising that scheme, Congress categorized marijuana as a Schedule I controlled substance, thereby designating it “as contraband for any purpose” and indicating that it “has no acceptable medical uses.” Id. at 27. Michigan also designates marijuana as a Schedule 1 drug, and its possession, manufacture, and delivery remain punishable offenses under Michigan law. People v Kolanek, 491 Mich 382, 394; 817 NW2d 528 (2012). See also MCL 333.7212(1)(c), MCL 333.7401(2)(d), and MCL 333.7403(2)(d). In enacting the MMMA, however, the people of the State of Michigan chose to part ways with Congress only regarding the scope of acceptable medical use of marijuana, allowing “a limited class of individuals” to engage in certain such use in “an ‘effort for the health and welfare of [Michigan] citizens.’ ” Kolanek, 491 Mich at 393-394, quoting MCL 333.26422(c). While the MMMA and CSA differ with respect to medical use of marijuana, § 4(a)’s limited state-law immunity for such use does not frustrate the CSA’s operation nor refuse its provisions their natural effect, such that its purpose cannot otherwise be accom plished. Crosby, 530 US at 373. As the Court of Appeals duly recognized and the MMMA itself makes clear, see MCL 333.26422 and MCL 333.26427(a), this immunity does not purport to alter the CSA’s federal criminalization of marijuana, or to interfere with or undermine federal enforcement of that prohibition. The CSA, meanwhile, by expressly declining to occupy the field of regulating marijuana, 21 USC 903, “explicitly contemplates a role for the States” in that regard, Oregon, 546 US at 251, and there is no indication that the CSA’s purpose or objective was to require states to enforce its prohibitions. Indeed, as noted, Congress lacks the constitutional authority to impose such an obligation. As a result, we fail to see how § 4(a) creates, as the City claims, “significant and unsolvable obstacles to the enforcement of the” CSA, such that the former is preempted by the latter. In reaching the opposite conclusion, both the City and the circuit court rely heavily on Mich Canners & Freezers Ass’n v Agricultural Marketing & Bargaining Bd, 467 US 461; 104 S Ct 2518; 81 L Ed 2d 399 (1984), and Emerald Steel Fabricators, Inc v Bureau of Labor & Indus, 348 Or 159; 230 P3d 518 (2010). Such reliance, however, is misplaced. At issue in Michigan Canners was whether Michigan’s Agricultural Marketing and Bargaining Act (the Michigan Act) was preempted by the federal Agricultural Fair Practices Act (AFPA). In order to protect individual producers of agricultural commodities from coercion by associations of producers, the AFPA prohibited those associations from “engaging] in practices that interfere with a producer’s freedom to choose whether to bring his products to market himself or to sell them through” an association. Mich Canners, 467 US at 464. The Michigan Act, however, provided that, under certain circumstances, a producers’ association could receive state accreditation to become the exclusive bargaining agent for all producers of a given commodity; when an association was so accredited, “all producers of that commodity, regardless of whether they have chosen to become members of the association, must pay a service fee to the association and must abide by the terms of the contracts the association negotiates with processors.” Id. at 467-468. The United States Supreme Court concluded that the Michigan Act was preempted by the AFPA because the Michigan Act, by compelling individual producers to effectively join and be bound by the actions of accredited associations, “empowers producers’ associations to do precisely what the federal Act forbids them to do” and “imposes on the producer the same incidents of association membership with which Congress was concerned in enacting” the AFPA. Id. at 478. In other words, the AFPA guaranteed individual producers the freedom to choose whether to join associations; the Michigan Act, however, denied them that right. Such circumstances are not present here. Section 4(a) simply provides that, under state law, certain individuals may engage in certain medical marijuana use without risk of penalty. As previously discussed, while such use is prohibited under federal law, § 4(a) does not deny the federal government the ability to enforce that prohibition, nor does it purport to require, authorize, or excuse its violation. Granting Ter Beek his requested relief does not limit his potential exposure to federal enforcement of the CSA against him, but only recognizes that he is immune under state law for MMMA-compliant conduct, as provided in § 4(a). Unlike in Michigan Canners, the state law here does not frustrate or impede the federal mandate. Emerald Steel is also distinguishable, never mind nonbinding. At issue in that case was whether the plaintiffs medical use of marijuana constituted an “illegal use of drugs” under a state statutory provision governing his claim for employment discrimination. The statute, in turn, provided that “illegal use of drugs” did not include “uses authorized under the [CSA] or under other provisions of state or federal law.” Emerald Steel, 348 Or at 170, quoting Or Rev Stat 659A. 122(2). The plaintiff argued that his medical marijuana use was not an “illegal use of drugs” under the statute because it was authorized under the Oregon Medical Marijuana Act, which provided that certain individuals, under certain circumstances, “may engage in . . . the medical use of marijuana.” Or Rev Stat 475.306(1). The Oregon Supreme Court rejected this position, concluding that, to the extent the Oregon Medical Marijuana Act authorized the use of marijuana, it was preempted by the CSA. Emerald Steel, 348 Or at 190. The decision made clear, however, that it did “not hold that the [CSA] preempts provisions of the Oregon Medical Marijuana Act that exempt the possession, manufacture, or distribution of medical marijuana from state criminal liability.” Id. See also, e.g., id. at 171-172 nn 11 and 12. Thus, Emerald Steel addresses a substantively different question than the one presently before us — whether the CSA preempts § 4(a)’s limited state-law immunity from penalty for certain medical marijuana use — and we see nothing in its answer that would alter our own. In sum, there is no “positive conflict” between the CSA and § 4(a) of the MMMA such that the two “cannot consistently stand together,” 21 USC 903: it is not impossible to comply with both the CSA’s federal prohibition of marijuana and § 4(a)’s limited state-law immunity for certain medical marijuana use, and § 4(a) does not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the CSA. Mut Pharm, 570 US at_,_; 133 S Ct at 2473, 2476-2477; Hillsborough, 471 US at 713. As such, the CSA does not preempt § 4(a) of the MMMA. C. THE ORDINANCE IS PREEMPTED BY § 4(a) OF THE MMMA Having found that the CSA does not preempt § 4(a) of the MMMA, we turn next to whether the Ordinance, as applied to Ter Beek, is preempted by § 4(a). We agree with the Court of Appeals that it is. The required analysis on this point is not complex. Under the Michigan Constitution, the City’s “power to adopt resolutions and ordinances relating to its municipal concerns” is “subject to the constitution and the law.” Const 1963, art 7, § 22. As this Court has previously noted, “[w]hile prescribing broad powers, this provision specifically provides that ordinances are subject to the laws of this state, i.e., statutes.” AFSCME v Detroit, 468 Mich 388, 410; 662 NW2d 695 (2003). The City, therefore, “is precluded from enacting an ordinance if... the ordinance is in direct conflict with the state statutory scheme, or.. . if the state statutory scheme preempts the ordinance by occupying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation.” People v Llewellyn, 401 Mich 314, 322; 257 NW2d 902 (1977) (footnotes omitted). A direct conflict exists when “the ordinance permits what the statute prohibits or the ordinance prohibits what the statute permits.” Id. at 322 n 4. Here, the Ordinance directly conflicts with the MMMA by permitting what the MMMA expressly prohibits — the imposition of a “penalty in any manner” on a registered qualifying patient whose medical use of marijuana falls within the scope of § 4(a)’s immunity. The City disputes this characterization of the Ordinance, noting that while it permits the imposition of civil sanctions, it does not require them; instead, a violation of the Ordinance can be enforced through equitable relief such as a civil injunction. We agree with the Court of Appeals, however, that enjoining a registered qualifying patient from engaging in MMMAcompliant conduct unambiguously falls within the scope of penalties prohibited by § 4(a). For § 4(a) makes clear that individuals who satisfy the statutorily specified criteria “shall not be subject to . .. penalty in any manner,” a prohibition which expressly includes “civil penalties].” As the Court of Appeals noted, the MMMA does not define “penalty,” but that term is commonly understood to mean a “punishment imposed or incurred for a violation of law or rule . . . something forfeited.” Random House Webster’s College Dictionary (2000). See, e.g., People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999) (“Where, as here, the Legislature has not expressly defined terms used within a statute, we may turn to dictionary definitions to aid our goal of construing those terms in accordance with their ordinary and generally accepted meanings.”). Under the Ordinance, individuals are subject to civil punishment for engaging in the medical use of marijuana in accordance with the MMMA; by the plain terms of § 4(a), the manner of that punishment — be it requiring the payment of a monetary sanction, or denying the ability to engage in MMMA-compliant conduct — is not material to the MMMA’s immunity from it. Nor do we agree with the City that our decision in Michigan v McQueen, 493 Mich 135; 828 NW2d 644 (2013), mandates a different outcome. In McQueen, this Court held that, because the defendants’ business, a medical marijuana dispensary, was not being operated in accordance with the MMMA, it was properly enjoined as a public nuisance under MCL 600.3801. McQueen, 493 Mich at 140. The City contends that, because the growth and cultivation of marijuana is a violation of the Ordinance, and violations of zoning ordinances constitute nuisances per se under the Michigan Zoning Enabling Act (MZEA), MCL 125.3407, McQueen permits the City’s regulation through injunction. McQueen, however, affirmed the injunction of the defendants’ business not simply because it was a nuisance, but because it was a nuisance that fell outside the scope of conduct permitted under the MMMA. McQueen does not, as the City contends, authorize a municipality to enjoin a registered qualifying patient from engaging in medical use of marijuana in compliance with the MMMA, simply by characterizing that conduct as a zoning violation. Furthermore, contrary to the City’s suggestion, the fact that the Ordinance is a local zoning regulation enacted pursuant to the MZEA does not save it from preemption. The City stresses that the MZEA affords local municipalities a broad grant of authority to use their zoning powers to advance local interests, such as “public health, safety, and welfare.” MCL 125.3201. The MMMA, however, provides in no uncertain terms that “[t]he medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with” the MMMA, MCL 333.26427(a), and that “ [a]ll other acts and parts of acts inconsistent with [the MMMA] do not apply to the medical use of marihuana,” MCL 333.26427(e). The City contends that the MMMA does not express a sufficiently clear intent to supersede the MZEA, but we see no ambiguity in the MMMA’s plain language to this effect. See Bylsma, 493 Mich at 26 (explaining that the MMMA’s plain language provides the most reliable evidence of intent and that if this language is unambiguous, no further judicial construction is required or permitted because we must conclude that the electors intended the meaning clearly expressed). It is well accepted that when two legislative enactments seemingly conflict, the specific provision prevails over the more general provision. See, e.g., Crane v Reeder, 22 Mich 322, 334 (1871). Accordingly, the City cannot look to the MZEA to authorize or excuse the Ordinance’s contravention of the specific immunity for medical marijuana use provided under § 4(a) of the MMMA. The City also points to Riverside v Inland Empire Patients Health & Wellness Ctr, Inc, 56 Cal 4th 729; 156 Cal Rptr 3d 409; 300 P3d 494 (2013), in support of its position. In that case, the California Supreme Court found certain state medical marijuana laws did not preempt a local zoning ordinance. Riverside, however, is beside the point. At issue there was whether a local zoning ordinance prohibiting medical marijuana dispensaries within city limits was preempted by California’s Compassionate Use Act (CUA) and Medical Marijuana Program Act (MMP). The California Supreme Court concluded that there was no preemption, as the CUA and MMP offered only a limited immunity from sanction under certain specified state criminal and nuisance statutes, thereby “signaling] that the state declines to regard the described acts as nuisances or criminal violations, and that the state’s enforcement mechanisms will thus not be available against these acts.” Id. at 762. As such, these “limited provisions” were found to “neither expressly or impliedly restrict or preempt the authority of individual local jurisdictions to choose otherwise for local reasons, and to prohibit collective or cooperative medical marijuana activities within their own borders.” Id. The scope of § 4(a)’s immunity, however, is not similarly circumscribed; in prohibiting certain individuals from being “subject to . . . penalty in any manner,” § 4(a) draws no distinction between state and local laws or penalties. We thus do not find Riverside’s reasoning instructive. Lastly, the City stresses that the MMMA does not create an absolute right to grow and distribute marijuana. Correct. See People v Kolanek, 491 Mich 382, 394; 817 NW2d 528 (2012) (“The MMMA does not create a general right for individuals to use and possess marijuana in Michigan. Possession, manufacture, and delivery of marijuana remain punishable offenses under Michigan law.”); Bylsma, 493 Mich at 32 (discussing Kolanek); People v Koon, 494 Mich 1, 5; 832 NW2d 724 (2013) (“The MMMA, rather than legalizing marijuana, functions by providing registered patients with immunity from prosecution for the medical use of marijuana.”). Ter Beek, however, does not seek to assert any such general or absolute right. Nor does our conclusion recognize one. The Ordinance directly conflicts with the MMMA not because it generally pertains to marijuana, but because it permits registered qualifying patients, such as Ter Beek, to be penalized by the City for engaging in MMMA-compliant medical marijuana use. Section 4(a) of the MMMA expressly prohibits this. As such, the MMMA preempts the Ordinance to the extent of this conflict. IV CONCLUSION For the foregoing reasons, we hold that the Ordinance is preempted by § 4(a) of the Michigan Medical Marijuana Act, which in turn is not preempted by the federal controlled substances act. Accordingly, we affirm the judgment of the Court of Appeals, reverse the circuit court’s grant of summary disposition in favor of the City, and remand for entry of summary disposition in favor of Ter Beek. Young, C.J., and Cavanagh, Markman, Kelly, Zahra and VIVIANO, JJ., concurred with McCormack, J. The MMMA specifies the circumstances under which a person can register with the state as a qualifying medical marijuana patient. Upon satisfaction of these criteria, the state issues a registry identification card to the qualifying patient. See MCL 333.26426. Ter Beek has not been charged with violating the Ordinance or subjected to any enforcement action in connection with it. The City unsuccessfully challenged his standing before the circuit court, and has abandoned that challenge on appeal. We also granted permission for interested persons or groups to move to submit briefs amicus curiae. The City of Livonia, the Michigan Municipal League, the Prosecuting Attorneys Association of Michigan, and the State Bar of Michigan Public Corporation Law Section submitted briefs in support of the City; the Cannabis Attorneys of Mid-Michigan, and the Cato Institute, the Drug Policy Alliance, and Law Enforcement Against Prohibition submitted briefs in support of Ter Beek. The only exception to this prohibition is for research projects approved by the federal government. See 21 USC 823(f); United States v Oakland Cannabis Buyers’ Coop, 532 US 483, 490; 121 S Ct 1711; 149 L Ed 2d 722 (2001). The City contends that these cases, as well as Oakland Cannabis, 532 US 483, support a finding of federal preemption in this case. These cases, however, indicate that state medical marijuana laws cannot he used to inhibit federal enforcement of the CSA; none of them suggests that such laws cannot exempt from penalty under state law certain conduct that remains illegal under federal law. See Raich, 545 US at 15-33 (holding that the federal government had constitutional authority to prohibit and prosecute under federal law the cultivation of marijuana, regardless of whether such activity violated state law); Oakland Cannabis, 532 US at 486-495 (holding that, in a federal prosecution under the CSA, there was no medical necessity defense available under federal law, regardless of whether that defense would be available under state law); Hicks, 722 F Supp 2d at 832-834 (holding that the federal defendant’s compliance with the MMMA did not excuse his violation of the conditions of his federal supervised release). This line of authority thus fully comports with our holding here. Furthermore, we have misgivings, mildly put, about Emerald Steel’s reasoning. In particular, in finding preemption, the Oregon Supreme Court characterized Michigan Canners as a case of “state law permitting] what federal law prohibits,” and reasoned by analogy that “[affirmatively authorizing a use that federal law prohibits stands as an obstacle to the implementation and execution of the full purposes and objectives of the” CSA. Emerald Steel, 348 Or at 177-178. Michigan Canners, however, does not stand for the broad proposition that, if a state law permits something a federal law prohibits, it is preempted. Instead, Michigan Canners involved a state law that not only permitted what federal law prohibited, but also required that certain federal guarantees be denied. Indeed, the Oregon Supreme Court has since moderated this aspect of its analysis, clarifying that “Emerald Steel should not he construed as announcing a stand-alone rule that any state law that can be viewed as ‘affirmatively authorizing’ what federal law prohibits is preempted.” Willis v Winters, 350 Or 299, 310 n 6; 253 P3d 1058 (2011). MCL 600.3801(l)(c) provides that “[a] building, vehicle, boat, aircraft, or place is a nuisance if... [i]t is used for the unlawful manufacture, transporting, sale, keeping for sale, bartering, or furnishing of a controlled substance.” No more availing is the City’s attempt to import certain zoning-related standards into our preemption analysis. The City, for instance, points to Kyser v Kasson Twp, 486 Mich 514, 521; 786 NW2d 543 (2010), which states that, when a citizen challenges a zoning ordinance on due process grounds, the “ordinance is presumed to be reasonable.” The City also cites the MZEA’s exclusionary zoning provision, MCL 125.3207, which requires a showing of “demonstrated need” for a certain land use in order to overcome a zoning ordinance’s “effect of totally prohibiting the establishment of a land use within a local unit of government” — a need, the City contends, that Ter Beek cannot show, since he can likely procure marijuana for medical use in other municipalities. We do not see how these standards impact our assessment of whether the Ordinance is preempted by the state-law immunity from penalty provided by § 4(a) of the MMMA. The City seems to suggest that, for this immunity to attach, a registered qualifying patient must show a “demonstrated need” under MCL 125.3207 for his or her MMMA-compliant medical marijuana use. Neither § 4(a) nor any other provision of the MMMA, however, imposes or betrays a tolerance for such a condition with respect to the availability of its protections. Thus, to the extent the MZEA may be read to require such a showing for an individual to claim the immunity provided under § 4(a), it is inconsistent with and superseded by the MMMA. MCL 333.26427(e). Contrary to the City’s concern, this outcome does not “create a situation in the State of Michigan where a person, caregiver or a group of caregivers would be able to operate with no local regulation of their cultivation and distribution of marijuana.” Ter Beek does not argue, and we do not hold, that the MMMA forecloses all local regulation of marijuana; nor does this case require us to reach whether and to what extent the MMMA might occupy the field of medical marijuana regulation.
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YOUNG, C.J. This case concerns three actions — two class actions and a qui tarn action brought in the name of the state of Michigan — involving allegations that multiple pharmacies in Michigan systematically violated MCL 333.17755(2) by improperly retaining savings that should have been passed on to customers when dispensing generic drugs in the place of their brand-name equivalents. Under MCL 333.17755(2), when a pharmacist receives a prescription for a brand-name drug and instead dispenses the generic equiva lent, the pharmacist must “pass on the savings in cost to the purchaser. . . The statute is clear: when a generic drug is substituted for a brand-name drug (and only then), the pharmacist must pass on the monetary difference between the wholesale cost of the brand-name drug and the wholesale cost of the generic drug. Plaintiffs further contend that violations of § 17755(2) necessarily result in violations of the Health Care False Claim Act (HCFCA) and the Medicaid False Claim Act (MFCA) when pharmacists submit reimbursement claims to the state for Medicaid payments that they are not entitled to receive. Plaintiffs argue that, when submitting reimbursement claims, defendant pharmacies are impliedly and fraudulently representing that they are passing on the savings in cost when generic drugs are dispensed. Plaintiffs’ complaints, however, fail to plead facts with sufficient particularity to survive summary disposition. In their complaints, plaintiffs attempt to derive the wholesale costs of drugs dispensed by all the Michigan defendants by extrapolating from the wholesale costs in a single set of proprietary data from a single Kroger pharmacy in West Virginia. The inferences and assumptions required to implicate defendants are simply too tenuous for plaintiffs’ claims to survive summary disposition. Moreover, plaintiffs’ overbroad approach of identifying all transactions in which a generic drug was dispensed fails to hone in on the only relevant transactions — those in which a generic drug was dispensed in place of a brand-name drug. This overbroad method of pleading is deficient, especially given plaintiffs’ burden to plead instances of fraud with particularity. Because plaintiffs have failed to adequately plead violations of § 17755(2), their HCFCA and MFCA claims stemming from violations of that section necessarily fail as well. As a result, their complaints fail to state a ground on which relief can be granted. We reverse the Court of Appeals’ construction of MCL 333.17755(2) and its holding that plaintiffs’ pleadings were sufficient to survive summary disposition, vacate the remainder of the Court of Appeals’judgment, and reinstate the trial court’s grant of summary disposition to defendants. I. FACTS AND PROCEDURAL HISTORY Two of the consolidated cases are class actions brought by three named plaintiffs: the city of Lansing and Dickinson Press Inc. (who are third-party payors for prescription medication) and Scott Murphy (who is a consumer of prescription medication). The claims before the Court arising from the class actions are alleged violations of § 17755(2) and the HCFCA. The class action plaintiffs argue that defendants systematically violated § 17755(2) by charging prices for generic drugs that produced a higher profit margin than had been achieved by selling the equivalent brand-name drugs. The class action plaintiffs also plead that defendant pharmacies made false statements in contravention of the HCFCA when they submitted claims for private insurance reimbursement that are not in compliance with § 17755(2). The other consolidated case is a qui tam action alleging a single claim under the MFCA.* * The relator, Marcia Gurganus, alleges that defendants failed to comply with § 17755(2) when they submitted prescription drug claims to the state for generic drugs dispensed to Medicaid beneficiaries and failed to pass on the “savings in cost” when dispensing the generic drugs. By doing so, Gurganus contends, defendants submitted false claims to the state in violation of the MFCA. In their first amended complaints, plaintiffs relied on annual reports from some of the defendants and a newspaper article to allege that defendant pharmacies profited more from dispensing generic drugs than from brand-name drugs. The Kent Circuit Court granted defendants summary disposition pursuant to MCR 2.116(C)(8). The court dismissed all three cases without prejudice, holding that the complaints failed to plead sufficient facts and relied on unsupported inferences, alleging no acts undertaken by any of the defendants in Michigan. Instead of providing pricing data specific to defendants in their second amended complaints, both the class action plaintiffs and Gurganus derived the allegations for their claims from specific proprietary information acquired by Gurganus revealing the wholesale costs and sales prices of brand-name and generic drugs that had been sold in 2008 at a single West Virginia Kroger pharmacy where Gurganus was employed. The key data for plaintiffs are the wholesale costs of drugs, which defendants keep confidential from the public. Plaintiffs allege that because Kroger operates retail pharmacies nationwide, acquires prescription drugs through central purchasing functions serving all its pharmacy locations, and acquires the majority of its prescription drugs from wholesalers, the wholesale costs of all the other defendants likely were not materially different. Because Kroger and the other defendants operate in substantially the same manner, and because the purchasing power for each defendant is essentially the same, said plaintiffs, one can extrapolate from the West Virginia pharmacy data the wholesale costs of each of the defendants in Michigan. Plaintiffs go on to identify more than 2,000 transactions by various defendants allegedly made in violation of § 17755(2) using this West Virginia data. Defendants again moved for summary disposition pursuant to MCR 2.116(C)(8), and the trial court again granted summary disposition for failure to state a claim on which relief could be granted, this time with prejudice.* Unpersuaded that the class action plaintiffs’ allegations stated a claim, the court noted that [d] espite the literally hundreds of claims referenced, there is not a single transaction alleged which identifies the drug definitively prescribed; the actual generic drug dispensed; the cost of the prescribed drug on the date in question minus its actual acquisition cost; the cost of the substituted drug on the date of substitution minus its actual acquisition cost; the subtraction and/or addition for any other applicable costs and/or payments such as those related to other third-party payers; and finally the amount actually paid by plaintiffs. There is a complete void of any of the critical specificity as to each transaction. The order entered in Gurganus’s action contained similar language. The trial court also dismissed Gurganus’s suit on the separate but related ground that she is not an appropriate qui tarn relator under the MFCA because she failed to allege facts sufficient to survive summary disposition. Moreover, the trial court ruled that there is no private right of action to enforce § 17755(2) or the HCFCA. Finally, the court ruled that the HCFCA imposes only criminal, not civil, liability for its violations. The Court of Appeals reversed in substantial part, holding that plaintiffs’ claims under the MFCA and the HCFCA could proceed. The panel affirmed the trial court’s holding that there is no implied right of action under § 17755(2) because the Legislature provided administrative remedies for violations of the statute. However, the panel reversed the trial court’s holding that the HCFCA did not allow for a private right of action. Rather, a private cause of action arises out of the “broad and mandatory statement of civil liability in MCL 752.1009 ... ,” Moreover, the Court of Appeals interpreted § 17755(2) as applicable to all transactions in which a generic drug is dispensed, and therefore the statute is not limited only to transactions in which a generic drug is substituted in place of its brand-name equivalent. The Court reasoned that there is no express language in § 17755(2) requiring such a limited interpretation. The panel also reversed the trial court’s holding that plaintiffs had failed to state a claim on which relief could be granted based on the insufficiency of plaintiffs’ pleadings. Because a court must accept as true plaintiffs’ allegations that the wholesale costs for generic and brand-name drugs do not materially differ from those of the West Virginia Kroger, the Court of Appeals concluded that plaintiffs’ claims under the false claim acts could proceed. The Court of Appeals reasoned: [T]he fact that plaintiffs’ complaints do not'allege transactions based on information specific to defendants, and the fact that the complaints rely on some inferences, is not fatal to plaintiffs’ complaints. Plaintiffs are not required to prove their case in their pleadings, and summary disposition is appropriate only if the claim cannot succeed because of some deficiency that cannot be overcome at trial.[ ] The panel rejected defendants’ argument that even assuming violations of § 17755(2) had occurred, a vior lation of that section does not amount to knowingly submitting a false claim under either the HCFCA or the MFCA. According to the panel, implicit in a pharmacist’s submission for payment is the representation that he has complied with the requirement of § 17755(2) to pass along cost savings to the purchaser. If defendants did not, in fact, pass on the required savings to the purchaser, then they concealed material facts and made the purchasers believe the state of affairs was something different than it actually was. Finally, the Court of Appeals reversed the trial court’s ruling that Gurganus was not a proper relator in the qui tam action. Under the MFCA, any person may bring a qui tam action on behalf of the state for a violation of the MFCA, subject to certain restrictions. Qui tam actions are not permitted, however, if the action is based on “the public disclosure of allegations or transactions” in a legal hearing, governmental hearing, report, or investigation or from the news media unless the relator is the original source of the information. According to the panel, Gurganus’s use of a news article did not contain “allegations or transactions” on which the complaint relied, and therefore Gurganus was not barred from bringing the qui tam action. II. STANDARD OF REVIEW Issues of statutory construction are reviewed de novo, as is a trial court’s grant of summary disposition. III. DISCUSSION A. INTERPRETATION OF MCL 333.17755(2) Whether relief is sought for violation of § 17755(2) itself, or through violations of the HCFCA and the MFCA, § 17755(2) is the basis from which all of plaintiffs’ claims derive. In order to properly evaluate whether plaintiffs’ allegations pass muster to survive summary disposition, we must first construe § 17755(2) to determine what a plaintiff must allege to sufficiently state a violation. Section 17755 is a provision in Part 177 of the Public Health Code. Before the enactment of § 17755, a pharmacist was required to dispense a prescription as written and was prohibited from substituting a less expensive generically equivalent drug. After enactment, pharmacies are generally permitted to substitute generic drugs for their brand-name equivalents. Section 17755 states in pertinent part: (1) When a pharmacist receives a prescription for a brand name drug product, the pharmacist may, or when a purchaser requests a lower cost generically equivalent drug product, the pharmacist shall dispense a lower cost but not higher cost generically equivalent drug product if available in the pharmacy, except as provided in subsection (3). If a drug is dispensed which is not the prescribed brand, the purchaser shall be notified and the prescription label shall indicate both the name of the brand prescribed and the name of the brand dispensed and designate each respectively. If the dispensed drug does not have a brand name, the prescription label shall indicate the generic name of the drug dispensed, except as otherwise provided in [MCL 333.17756]. (2) If a pharmacist dispenses a generically equivalent drug product, the pharmacist shall pass on the savings in cost to the purchaser or to the third party payment source if the prescription purchase is covered by a third party pay contract. The savings in cost is the difference between the wholesale cost to the pharmacist of the 2 drug products.[ ] The proper interpretation of Subsection (2) is disputed in the instant case. First, the parties disagree whether Subsection (2) applies to all transactions in which a generic drug is dispensed or only in situations in which a generic drug is substituted for its brand-name equivalent. Second, the parties disagree about what it means to “pass on the savings in cost.” The goal of statutory interpretation “is to give effect to the Legislature’s intent, focusing first on the statute’s plain language.” Individual words and phrases are not read in a vacuum; “we examine the statute as a whole, reading individual words and phrases in the context of the entire legislative scheme.” Subsection (1) states, “When a pharmacist receives a prescription for a brand name drug product, the pharmacist may [or, upon request, shall] dispense a lower cost [generic drug] . . . .” This introductory provision provides the context in which to read the rest of § 17755, i.e., transactions in which a pharmacist substitutes a generic drug for a brand-name drug. Subsection (2) then begins, “If a pharmacist dispenses a generically equivalent drug product, the pharmacist shall pass on the savings in cost. . . .” This introductory phrase, which immediately follows Subsection (1) governing transactions in which generic drugs are dispensed in lieu of brand-name drugs, indicates that the text that follows is only triggered if the pharmacist is operating under Subsection (1). In other words, Subsection (2) only applies when the pharmacist is engaged in a substitution transaction described in Subsection (1). Surely, it would be counterintuitive for the Legislature to have inserted this provision governing all generic drug transactions immediately after a specific provision referring only to substitution transactions. The first subsection gives meaning to the one that follows. Other textual support only strengthens this interpretation. Subsection (2) itself refers to a “generically equivalent drug product.” The use of the term “equivalent” evidences a Legislative intent to compare two different drug products. If, as the Court of Appeals concluded, Subsection (2) applies to all transactions in which generic drugs are dispensed, including transactions in which no brand-name drug was prescribed, then the term “equivalent” is effectively written out of the statute because there is no referent to which the generic drug product is equivalent. Similarly, the definition of “savings in cost” in Subsection (2) refers to the difference between “the 2 drug products.” Without a prescribed brand-name drug that is equivalent to the generic, there is only a single drug product. These textual clues belie the Court of Appeals’ conclusion that nothing in the language of the statute limits the scope of Subsection (2) to only substitution transactions. Plaintiffs improperly read the first clause of Subsection (2) — which reads, “ [i]f a pharmacist dispenses a generically equivalent drug product” — as detached from the remainder of the subsection in order to come to their preferred interpretation that Subsection (2) applies to all transactions in which a generic drug is dispensed. In doing so, they ignore the remainder of Subsection (2). Viewing an excerpt of a subsection with a magnifying glass to the exclusion of its relevant context eschews this Court’s dictate that “we must consider both the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme.” When read properly, it is clear that the Legislature intended that Subsection (2) apply only to transactions in which a generic drug is dispensed in place of its brand-name equivalent. Plaintiffs’ construction also ignores the fact that, before enactment of this statute, a pharmacist had to fill the prescription as the physician wrote it. We now turn to the proper interpretation of the phrase “savings in cost.” Subsection (2) states that a “pharmacist shall pass on the savings in cost to the purchaser” in a substitution transaction. As provided in MCL 333.17755(2), “savings in cost” means “the difference between the wholesale cost to the pharmacist of the 2 drug products.” Defendants argue that the statute only requires pharmacists to sell the substituted generic drug at the same price that a purchaser would pay had the generic been prescribed in the first instance. In other words, pharmacists are prohibited from increasing the customer’s cost of the substituted generic drug. However, this reading ignores the definition in the statute: The amount that a pharmacist must pass on to a purchaser or third-party payer is the difference between the wholesale cost of the two drugs. In other words, “savings in cost” equals the brand-name wholesale cost minus the generic wholesale cost. As a practical mat ter, Subsection (2) provides a maximum allowable profit regardless of whether the pharmacist dispenses a generic drug or a brand-name drug — he cannot make more from dispensing a generic drug than he could from a brand-name drug. Furthermore, a 2013 article in Pharmacy & Therapeutics explained that “patients have taken the same drug prescribed or dispensed under more than one trademark” and provided examples of generic drugs that have multiple brand-name drugs associated with them. This confirms the requirement in § 17755(2) that an actual substitution transaction must occur; otherwise, there is no basis for determining which brand-name wholesale cost to use when calculating the savings in cost. B. ADEQUACY OF PLAINTIFFS’ PLEADINGS Having construed § 17755(2), we turn to whether plaintiffs’ pleadings adequately state a claim for relief for violation of this statute. A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a complaint. A motion for summary disposition is properly granted if “[t]he opposing party has failed to state a claim on which relief can be granted.” When reviewing a motion brought under MCR 2.116(C)(8), the court considers only the pleadings. Moreover, the court must accept all factual allegations in the complaint as true, along with all reasonable inferences or conclusions that can be drawn from them. However, conclusory statements that are unsupported by allegations of fact on which they may be based will not suffice to state a cause of action. Because plaintiffs’ claims are based on alleged fraudulent activity, the heightened pleading standard for fraud claims applies. MCR 2.112(B)(1) provides, in full, “In allegations of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity.” Plaintiffs’ complaints rely on wholesale drug cost data from a single Kroger pharmacy in West Virginia. From that proprietary data, plaintiffs extrapolate thousands of allegedly fraudulent transactions by defendants in violation of § 17755(2). In doing so, plaintiffs rely on various assumptions. These assumptions include (1) each defendant acquires its prescription drugs from just a few wholesalers, (2) the prescription drug purchasing power is substantially the same for all defendants, (3) the wholesale prices each defendant pays are materially the same, and (4) the wholesale prices do not change over time. When faced with the heightened pleading standard for fraud claims, plaintiffs’ claims of § 17755(2) violations cannot survive. Plaintiffs rely on a small set of cost data from a single out-of-state pharmacy during a brief time period to charge numerous Michigan defendants with systematic fraudulent activity across a multiyear period. The connection drawn between the West Virginia data and pharmaceutical sales in Michigan is simply too tenuous and conclusory to state a claim for relief. As the Court of Appeals correctly recognized: “The critical number in plaintiffs’ formula is the acquisition cost of the generic and brand name drugs. This is true because the sale prices of generic and brand name drugs are publicly known and easily identifiable; however, the acquisition cost is proprietary to each defendant.” But the Court of Appeals erred by holding that plaintiffs’ allegations were sufficient to survive summary disposition. Without precise allegations of fraud committed by defendants, plaintiffs’ allegations valuing quantity over quality do not meet the heightened pleading standard applicable here. Plaintiffs’ complaints are also deficient because they fail to particularly allege a single improper substitution transaction. As discussed earlier, § 17755(2) applies only to transactions in which a generic drug is substituted for a brand-name drug. Defendants claim that plaintiffs have not satisfied the heightened pleading requirement because plaintiffs do not identify substitution transactions in their complaints. Instead, plaintiffs only allege generic drug transactions, regardless of whether they are substitution transactions. Without distinguishing substitution transactions from transactions in which a generic was simply dispensed, plaintiffs’ overbroad approach is deficient— especially under the heightened pleading standard. Plaintiffs essentially allege that defendants had a statutory duty to pass on the savings in cost from every sale of a generic drug. Yet as previously discussed, the statute simply does not impose such a duty on pharmacists. By alleging that thousands of generic drug transactions were improper, regardless of whether any of the transactions involved a substitution, plaintiffs failed to plead any transaction proscribed under § 17755(2) because the transactions are not of the type covered by § 17755(2), i.e., substitution transactions. In other words, plaintiffs’ allegations assert concern about transactions not prohibited by law. C. PLAINTIFFS’ REMAINING CLAIMS In addition to violations of § 17755(2), the class action plaintiffs allege violations of the HCFCA and Gurganus alleges violations of the MFCA. Both claims are premised on defendants’ alleged violations of § 17755(2). As already outlined briefly, plaintiffs contend that defendants make false statements in contravention of the HCFCA and MFCA when they submit claims for Medicaid or private health insurance reimbursement that are not in compliance with § 17755(2). In other words, plaintiffs argue that certifying for reimbursement a claim founded on a transaction that was allegedly in violation of § 17755(2) constitutes a false claim under the respective false claim acts. Because plaintiffs’ complaints do not adequately establish violations of § 17755(2), this Court need not evaluate the propriety of the remainder of plaintiffs’ arguments. Assuming for the sake of argument that claims under the HCFCA and MFCA may be derived from violations of § 17755(2), plaintiffs’ failure to sufficiently allege violations of § 17755(2) necessarily means that they fail to allege derivative violations of the false claim acts. The failure of the pleadings thus disposes of the appeal in its entirety. Any discussion of these remaining derivative claims would constitute dicta because it is not necessary to resolve the case before us. We decline to opine on matters unnecessary to the resolution of this case. IV CONCLUSION MCL 333.17755(2) requires that when a generic drug is substituted for a brand-name drug (and only then), the pharmacist must pass on the difference between the wholesale cost of the brand-name drug and the wholesale cost of the generic drug. Plaintiffs’ allegations, which entirely rely on deriving wholesale costs of drugs for all the Michigan defendants by extrapolating from the wholesale costs in a single data set from a single West Virginia pharmacy, are simply too tenuous to survive summary disposition. Additionally, plaintiffs’ approach of identifying all transactions in which a generic drug was dispensed fails to highlight the only relevant transactions — those in which a generic drug was substituted in place of a brand-name drug. This overbroad method of pleading is deficient, especially in light of the requirement that instances of fraud be pleaded with particularity. Because plaintiffs have failed to allege sufficient facts to state a violation of § 17755(2), plaintiffs’ remaining derivative claims under the HCFCA and the MFCA are unsustainable. We reverse the Court of Appeals’ construction of MCL 333.17755(2) and its holding that plaintiffs’ pleadings were sufficient to survive summary disposition, vacate the remainder of the Court of Appeals’ judgment, and reinstate the trial court’s grant of summary disposition to defendants. Markman, Kelly, Zahra, McCormack, and Viviano, JJ., concurred with YOUNG, C.J. MCL 752.1001 et seq. MCL 400.601 et seq. MCR 2.112(B)(1). MCR 2.116(C)(8). The only relevant difference between the two cases are the named defendants. In Docket No. 146793, the class action plaintiffs named every defendant in these actions with the exception of Rite Aid of Michigan, Inc., and Perry Drugs Stores, Inc. The class actions plaintiffs sued these two corporations in Docket No. 146792. Under the HCFCA, “false” means “wholly or partially untrue or deceptive,” MCL 752.1002(c), and “deceptive” is defined as including the failure to reveal a material fact, leading to the belief that the state of affairs is something other than it actually is, MCL 752.1002(b). The MFCA specifically allows a qui tam action. See MCL 400.610a(l). Using language nearly identical to the HCFCA, the MFCA defines “false” as “wholly or partially untrue or deceptive.” MCL 400.602(d). In turn, “deceptive” means making a claim “that contains a statement of fact or that fails to reveal a fact, which statement or failure leads the [Department of Community Health] to believe the represented or suggested state of affair to be other than it actually is.” MCL 400.602(c). Summary disposition is appropriate when “[t]he opposing party has failed to state a claim on which relief can be granted.” MCR 2.116(C)(8). This proprietary information was a cost sheet with information regarding a number of brand-name drugs sold at the West Virginia pharmacy during 2008, including the brand sales price, brand wholesale cost, brand profit, generic wholesale cost, maximum generic price, and actual generic sales price for each of the drugs. The trial court entered three separate orders in the three cases. See generally MCL 400.610a. Michigan ex rel Gurganus v CVS Caremark Corp, unpublished opinion per curiam of the Court of Appeals, issued January 22, 2013 (Docket Nos. 299997, 299998, and 299999), p 12. Id. at 20-21. Id. at p 18. Id. at 19-20. MCL 400.610a(l). MCL 400.610a(13). Gurganus, unpub op at 6-7. Office Planning Group, Inc v Baraga-Houghton-Keweenaw Child Dev Bd, 472 Mich 479, 488; 697 NW2d 871 (2005). Id. MCL 333.17701 et seq. Legislative Notes, Improving Michigan’s Generic Drug Law, 9 Mich J L Reform 394, 394 (1976). MCL 333.17755(1) and (2). Malpass v Dep’t of Treasury, 494 Mich 237, 247-248; 833 NW2d 272 (2013) (quotation marks and citation omitted). Id. at 248. MCL 333.17755(1). MCL 333.17755(2). Id. (emphasis added). In re MCI Telecom Complaint, 460 Mich 396, 414; 596 NW2d 164 (1999) (“[A] court should avoid a construction that would render any part of the statute surplusage or nugatory.”). MCL 333.17755(2). Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008) (quotation marks and citations omitted). MCL 333.17755(2). Defendants seem to suggest that interpreting the statute by its plain terms recognizes an outmoded method of how pharmacies actually set their drug prices and that interpreting the statute by its terms would be impractical in light of these realities. If this is the case, it is a concern more properly addressed to the Legislature, whose purview is the enactment of legislation, as compared to the interpretation of that legislation, which is the province of the courts. See People v Kirby, 440 Mich 485, 493-494; 487 NW2d 404 (1992) (“[Arguments that a statute is unwise or results in bad policy should he addressed to the Legislature.”). Grissinger, Multiple Brand Names for the Same Generic Drug Can Cause Confusion, 38 Pharm & Therapeutics 305 (2013), available at <http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3737992/pdf/ ptj3806305.pdf> (accessed June 2, 2014) [http://perma.cc/ V5MG-DHLF], For instance, fluoxetine is marketed as both Sarafem and Prozac; finasteride is marketed as both Propecia and Prosear. MCR 2.116(C)(8). MCR 2.116(G)(5). See Wade v Dep’t of Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992). Churella v Pioneer State Mut Ins Co, 258 Mich App 260, 272; 671 NW2d 125 (2003). Generally, fraud “ ‘is not to be presumed lightly, but must be clearly proved,’ ” Cooper v Auto Club Ins Ass’n, 481 Mich 399, 414; 751 NW2d 443 (2008), quoting Palmer v Palmer, 194 Mich 79, 81; 160 NW 404 (1916), and must be proved by “ ‘clear, satisfactory and convincing evidence,’ ” Cooper, 481 Mich at 414, quoting Youngs v Tuttle Hill Corp, 373 Mich 145, 147; 128 NW2d 472 (1964). It is for these reasons that our court rules create an enhanced burden to plead fraud with particularity. Construing the federal analogue to our pleading rules, the United States Supreme Court has held that when the pleaded facts “do not permit the court to infer more than the mere possibility of misconduct,” the complaint fails to state a claim for relief. See Ashcroft v Iqbal, 556 US 662, 679; 129 S Ct 1937; 173 L Ed 2d 868 (2009) (emphasis added); FR Civ P 8(a). Gurganus, unpuh op at 17. MCR 2.112(B)(1). Plaintiffs alleged at oral argument that this absence of specific substitution transactions stems from plaintiffs’ alleged lack of access to specific instances in which defendant pharmacies engaged in substitution transactions. However, plaintiff Scott Murphy, as a firsthand uninsured purchaser, would have evidence from the receipt at the point of sale whether a pharmacist dispensed a brand-name drug as prescribed by his doctor or whether the pharmacist instead dispensed a generic equivalent. Thus, at least one of the plaintiffs has, or could have, the knowledge of whether, in a specific transaction by a named defendant, a substitution transaction occurred. See White v Beasley, 453 Mich 308, 325; 552 NW2d 1 (1996) (holding that the plaintiffs tort complaint failed to state a claim because she failed to allege facts showing that the defendant owed her a duty). Because plaintiffs have failed to plead any transaction proscribed under § 17755(2), we need not — and do not — determine whether § 17755(2) contains an implied right of action. The HCFCA provides that a “person shall not make or present or cause to be made or presented to a health care corporation or health care insurer a claim for payment of health care benefits knowing the claim to be false.” MCL 752.1003(1). The MFCA provides that a “person shall not make or present or cause to be made or presented ... a claim . . . knowing the claim to be false.” MCL 400.607(1). See Roberts v Auto-Owners Ins Co, 422 Mich 594, 597-598; 374 NW2d 905 (1985) (“Since we conclude that plaintiff failed even to meet the threshold requirements of proof to make out a prima facie claim of intentional infliction of emotional distress, we are constrained from reaching the issue as to whether this modern tort should be formally adopted into our jurisprudence by the well-settled rule that statements concerning a principle of law not essential to determination of the case are obiter dictum and lack the force of an adjudication.”) (emphasis added); People v Borchard-Ruhland, 460 Mich 278, 287-288; 597 NW2d 1 (1999) (questioning why, in a prior case, the Court had addressed arguments after analyzing a dispositive evidentiary issue).
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MARKMAN, J. The Judicial Tenure Commission (JTC) has recommended that respondent, Wayne Circuit Judge Wade H. McCree, be removed from office and conditionally suspended without pay for six years beginning on January 1, 2015 — with the suspension becoming effective only if respondent is reelected to judicial office in November 2014 — and that he be ordered to pay costs in the amount of $11,645.17. Respondent has filed a petition asking this Court to reject that recommendation. We affirm almost all of the JTC’s factual findings and conclusions of law, and we adopt its recommendation. The evidence establishes that respondent (a) had a sexual relationship with a complaining witness in a case pending before him without recusing himself for several months, (b) engaged in numerous ex parte communications with her concerning the case, as well as concerning another case in which one of her relatives was a party, (c) violated various policies of the courthouse by permitting his mistress to enter the facility through an employee entrance without going through security, allowing her to remain alone in his chambers while he was on the bench, arranging for her to park her vehicle in an area reserved for judges, and sneaking her cell phone into the courthouse for her, (d) transmitted numerous text messages to her while he was on the bench that contained inappropriate and derogatory references to defendants, litigants, and witnesses appearing before him, (e) lied about when and why he finally did recuse himself from the case in which his mistress was the complaining witness, (f) sought to use the prosecuting attorney’s office as leverage against his then ex-mistress by concocting charges of stalking and extortion against her, and (g) lied under oath during the JTC proceedings. The cumulative effect of respondent’s misconduct convinces this Court that respondent should not remain in judicial office, and we therefore remove him from office and conditionally suspend him without pay for six years beginning on January 1, 2015, with the suspension becoming effective only if respondent is reelected to judicial office in November 2014. In addition, because respondent engaged in conduct involving “deceit, or intentional misrepresentation,” pursuant to MCR 9.205(B) we order respondent to pay costs of $11,645.17 to the JTC. In respondent’s words in his own defense, “Wade should have recused himself,” but the failure to do so resulted in “no harm no foul.” We disagree. The “harm” done was to the parties’ rights to a fair legal process and the public’s right to an impartial judiciary, and the “foul” committed was the resulting violation of Michigan’s Code of Judicial Conduct. I. FACTS AND HISTORY On January 7, 2013, pursuant to MCR 9.219(A)(2), the JTC filed a petition for the interim suspension without pay of respondent. By order of February 8, 2013, this Court granted the petition, effective immediately. In re McCree, 493 Mich 935 (2013). On March 12, 2013, the JTC filed Formal Complaint No. 93 against respondent, alleging five counts of misconduct. It asserted that respondent had engaged in (a) “improper conduct [in] People v King” (Wayne Circuit Court Case No. 12-003141-01-FH); (b) the “false report of a felony”; (c) “improper conduct [in] People v Tillman” (Wayne Circuit Court Case No. 12-000686-01-FH); (d) “im proper bench conduct and demeanor”; and (e) “misrepresentations to the Commission.” With regard to Count I, the complaint alleged that between May and November 2012, respondent had a sexual relationship with Geniene LaShay Mott, who was the complaining witness in People v King. Robert King, the father of one of Mott’s children, was the defendant in that case, which pertained to his failure to pay Mott child support. Respondent and Mott repeatedly engaged in ex parte communications about the King case. For example, in response to Mott’s texted suggestion to impose a jail sentence until King paid $2,500, respondent texted back: I figured if [he] hasn’t come current by his courtdate, he gets jail 2 pay. If he says he can bring me the $$, I’ll put him on a tether till he brings the receipt 2 FOC or do ‘double time’.[ ] Respondent asked Mott to keep their relationship confidential because of the then-pending JTC investigation regarding respondent’s previous conduct of having texted a photograph of himself without a shirt to a female deputy sheriff and telling a reporter in response to questions about his actions that “there is no shame in my game.” For example, on June 20, 2012, respondent included the following in an email to Mott: My Judicial Tenure Commission matter has me nervous, as you might expect. I have to be real careful until this matter is put to rest. I can only ask humbly for your indulgence. Sorry. Second, you are the complaining witness on a case that is before me. Naturally if it got out that we were seeing each other before your B.D.’s[ ] case closed, everybody could be in deep shit. [ ] Respondent did not transfer the King case to another judge until September 18, 2012, at which point respondent sent the following text message to Mott: DONE DEAL!!!!:-) I told a story so well, I had me believing it!! Brother King is on his way 2 ‘hangin’ Judge [James A.] Callahan. He fuck up ONCE & he’s through!![ ] With regard to Count II, the complaint alleged that respondent later made a false stalking/extortion complaint against Mott with the Wayne County Prosecuting Attorney’s Office. He also falsely told the prosecutor’s office that he had transferred the King case immediately upon starting his relationship with Mott and that Mott had demanded $10,000 in return for terminating her pregnancy and not revealing respondent’s affair with her to respondent’s wife. With regard to Count III, the complaint alleged that respondent was involved in another failure-to-pay-child-support case in which Mott had an interest— People v Tillman. The defendant in that case was a relative of Mott’s. Respondent and Mott engaged in ex parte communications regarding this case as well. Off the record, and in the absence of any motion being filed, respondent signed an order for the reduction of bond relating to Mott’s relative. With regard to Count iy the complaint alleged that respondent transmitted numerous text messages to Mott while he was on the bench. Many of these text messages contained inappropriate and sexually explicit comments. For example, respondent texted Mott: Oh yeah, I text from the bench. After last nite, its all I can do not 2 jerk off ‘under’ the bench:-). U know U have a magnificent pair of legs! Numerous text messages respondent transmitted from the bench contained inappropriate and derogatory personal references to defendants, litigants, and witnesses appearing before him. For example, he texted: C’mon, U’r talking about the ‘docket from Hell’; filled w/tatted up, overweight, half-ass English speaking, gap tooth skank hoes....and then U walk N. He also texted: 2 funny, I just had Monica Conyers’[ ] nephew B4 me (ignorant shit...as usual). Finally, with regard to Count V, the complaint alleged that respondent made several misrepresentations to the JTC. For example, respondent told the JTC that he had irrevocably terminated his relationship with Mott on October 31, 2012, although he actually continued his affair with Mott into November 2012. Respondent also told the JTC that he did not take any action on the Tillman case in November 2012, but he actually signed an order for reduction of bond in that month. In addition, respondent told the JTC that he did not know of any familial relationship between Tillman and Mott, but he did, in fact, know that they were relatives. Also on March 12, 2013, the JTC filed a request for the appointment of a master. Three days later, on March 15, 2013, this Court appointed the Honorable Charles A. Nelson, a former circuit judge in Jackson County, as the master, and hearings began on May 20, 2013, and concluded on May 29, 2013. On June 23, 2013, the master filed his findings of fact and conclusions of law with the JTC. With regard to Count I, the master found that respondent should have disqualified himself from the King case as soon as he started a relationship with Mott and that “[f]or McCree to claim in sworn testimony during these proceedings that it was an OVERSIGHT or it didn’[t] DAWN on him that he should recuse himself is not credible. In short he lied to the JTC.” Respondent intentionally used his judicial position to advance his own interests by holding on to the King case in order to keep Mott interested in him. According to the master, “He had a hot young lady who was in his words ‘eye candy’ and a way to keep her interested was to keep her case and be of assistance in the collection of money.” Respondent also continuously engaged in ex parte communications with Mott about the case, which led her to believe that she could influence his judicial decisions. “Mott was providing input, without objection by McCree, as to how King should be dealt with,” and this “social relationship gave Mott the belief that she was able to influence his judicial duties.” With regard to Count II, the master found that respondent lied to the prosecutor’s office when he told them that Mott was stalking him and trying to extort money from him and that he had recused himself from the King case when he found out that a child of Mott’s had interacted with one of his children. “It is clear that he was improperly seeking to get the prosecutor and her office involved with alleged crimes that were not existent.” With regard to Count III, the master found that when respondent signed the order reducing Tillman’s bond, he was just “confirming in the order what had already been done by [Judge Kevin E] Robbins.” However, the master further concluded: [Respondent and Mott] were communicating with texts. He was advising what had to be done when the order was signed and how they would get Tillman out of jail. The main import of the matter to me is that he again had a case in which Mott had an interest. He was ethically not to be involved and should not have been signing any orders pertaining to the case. McCree’s actions were beyond an appearance of impropriety — they were in violation of the ethical standards. With regard to Count IY the master found that although many of the text messages that respondent sent while he was on the bench were inappropriate, they were “used in a private context and when used there was no reason to believe that the statements would become public” and “[t]he fact that he may have sent some messages from the bench (as in Tillman) does not mean that he was not performing as a judge.” Therefore, the master concluded that [t]here is no showing that the sending of the texts in any way interfered with his duties as a judge. I do not believe that this count rises to the level of judicial misconduct.[ ] Finally, with regard to Count V, the master found that respondent did not falsely tell the JTC that he had irrevocably terminated his relationship with Mott on October 31, 2012, because “there is no indication that a sexual relationship continued after that date.” And although respondent lied to the JTC about not knowing that Mott and Tillman were relatives and not taking any action on the Tillman case, this “does not appear to be a material misrepresentation as the Examiner had all of the texts and had an accurate picture when the answer was filed.” Therefore, the master concluded that “these alle gations are not such as to warrant action by the JTC.” In conclusion, the master stated: In final summary there is Shame in the McCree game: shame to the good name of McCree and shame brought upon the judiciary of the State of Michigan.[ ] The JTC then held a hearing on August 5, 2013, and issued its decision and recommendation for discipline on September 10, 2013. With regard to Count I, the JTC found that respondent had a sexual affair with Mott, who was a complaining witness in a case before him, and that respondent regularly engaged in ex parte communications with Mott regarding the case, even while he was sitting on the bench. For example, respondent and Mott exchanged the following text messages regarding the case: Mott-. Just keep in mind thur ill be in ur courtroom & need 2 bring in my phone so I can text U what I want done incase he makes payment that morning.......otherwise lock his ass up until he pays 2500 in cash directly 2 me via FOC... u seem 2 always call his case last so ill show up late & we can leave 2gether. Respondent: Likewise, my truck will B unlocked so U can set anything out of sight N my car. We’ll hold the case till U get there, or B sure 2 call Sharon Grier ahead of time so she’ll know U (the ‘C.P.’)[ ] will B N the courtroom. I figured if [he] hasn’t come current by his courtdate, he gets jail 2 pay. If he says he can bring me the $$, I’ll put him on a tether till he brings the receipt 2 FOC or do ‘double time’. Mott: Huh??? Teether? 4 how long and how much?? Respondent: Oooops, did I misspell ‘tether’. No, some guys say if they get locked up they can’t bring the $$, but if let out they can. So here’s the deal: go 2 jail (150 days), release upon payment of $1500. OR, get a tether & bring back w/n 30 days $2500 or serve 9 months! BONUS: pay w/n the 30 days, remove tether Mott: He’s about 15k behind... 2500 is asking much plus YOU only ordered him 2 pay $50 bucks a month towards arrage . ,@ that rate ill be getting CS[ ] til Racheal is 26 Respondent: OK, the math will be based on his failures since being placed on probation, but if U’r righ the threat of jail will loosen his purse strings! Mott: ok so let’s go with what u proposed.....go to jail (150 days), release upon payment of $1500. OR, get a tether & bring back w/n 30 days $2500 or serve 9 months! BONUS: pay w/n 30 days, remove tether Mott: He will pay cause they won’t let him go 2 jail PLUS u sending him 2 jail would violate his Oakland county probation and he gets lOyrs. Respondent: Cool. I’ll run it by the prosecutor. Mott: Make sure she’s aware they already let him off by accepting 400 for probation when they told him 1000 Respondent: Will do. That’s good 2 know. Then, on the morning of the review hearing in the King case, respondent and Mott exchanged the following text messages: Respondent: I think Ur B.D. is here!! Mott: Did the prosecuter agree wit our deal since she cut him a break .last time?? Respondent: Look 4 ‘my girl’ Sharon Grier, she’s our prosecutor & she’s been ‘prepped’. With regard to Count II, the JTC found that “Respondent reported to Wayne County Prosecuting Attorney Kym Worthy that he was being stalked and extorted by Mott,” but “Respondent did not tell Worthy that Mott had been a complainant in a case before him.” In addition, “[w]hile Respondent did tell Worthy’s investigators that Mott had been a complainant in a case before him, he falsely told the investigators that he immediately recused himself from the case once he realized the conflict.” With regard to Count III, the JTC found that “Respondent’s ex parte communications with Mott regarding People v Tillman and Respondent’s failure to immediately recuse himself from People v Tillman upon learning that Tillman was Mott’s relative constituted judicial misconduct.” Finally, with regard to Count Y the JTC found that “Respondent engaged in a pervasive pattern of dishon esty that included lying under oath to the Commission and to the Master.” For example, respondent testified that it did not “dawn” on him to recuse himself from the King case and that his failure to recuse himself was a mere “oversight.” However, his e-mails and text messages to Mott reveal otherwise. Indeed, they reveal that respondent knew very early on that what he was doing was wrong and that he would be in serious trouble if anybody found out. For example, in one e-mail he said: Second, you axe the complaining witness on a case that is before me. Naturally if it got out that we were seeing each other before your B.D.’s case closed, everybody could be in deep shit. And in a text message, he said: Yeah, I’m DEEPLY concerned that certain levels of ‘us’ remain COMPLETELY UNDETECTED as long as U’r still a litigant N case B4 me & while my nuts R still on a chopping block B4 the JTC.[ ] The JTC finally concluded that “[a] preponderance of the evidence at the formal hearing shows that Respondent breached the standards of judicial conduct....” More specifically, the JTC concluded that respondent engaged in “[mjisconduct in office . . . [and] [c]onduct clearly prejudicial to the administration of justice, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30 and MCR 9.205” and violated MCR 9.104(1), (2), (3), and (4); MCR 2.003; MCR 2.103; MCR 2.114; and MCL 750.423, as well as Canons 1; 2(A), (B), and (C); and 3(A)(1) and (4) and (C) of the Code of Judicial Conduct. In determining an appropriate sanction, the JTC considered the factors that this Court set forth in In re Brown, 461 Mich 1291, 1292-1293; 625 NW2d 744 (2000). Finding that respondent’s misconduct implicated six of the seven Brown factors and that his “misconduct affected not only the litigants in the King and Tillman cases, but harmed the integrity of the judicial system as a whole,” the JTC recommended that respondent be removed from office and conditionally suspended without pay for six years beginning on January 1, 2015, with the suspension becoming effective only if respondent is reelected to judicial office in November 2014, and that he be ordered to pay costs in the amount of $11,645.17. II. STANDARD OF REVIEW This Court reviews de novo the JTC’s factual findings, conclusions of law, and disciplinary recommendations. In re James, 492 Mich 553, 560; 821 NW2d 144 (2012); In re Halloran, 466 Mich 1219, 1219; 647 NW2d 505 (2002). “Findings of misconduct must be supported by a preponderance of the evidence.” In re Haley, 476 Mich 180, 189; 720 NW2d 246 (2006). MCR 9.225 provides that “[t]he Supreme Court shall review the record of the proceedings and file a written opinion and judgment, which may accept or reject the recommendations of the commission, or modify the recommendations by imposing a greater, lesser, or entirely different sanction.” “Although we review the JTC’s recommendations de novo, this Court generally will defer to the JTC’s recommendations when they are adequately supported.” Haley, 476 Mich at 189. III. ANALYSIS A. FACTUAL FINDINGS After reviewing the record and hearing oral arguments, we agree with and adopt almost all the factual findings of the JTC. Indeed, most of the JTC’s factual findings are not even in dispute. That is, respondent does not dispute that he engaged in a sexual relationship with Mott, who was a complaining witness in a case before him, and that he regularly engaged in ex parte communications with Mott regarding the case. Respondent also does not dispute that when he told the Wayne County Prosecuting Attorney that he was being stalked and extorted by Mott, he did not tell the prosecutor that Mott had been a complainant in a case before him; that he falsely told investigators that he had immediately recused himself from the case once he realized the conflict; that he knew that the defendant in the Tillman case was one of Mott’s relatives; that he engaged in ex parte communications with Mott about the Tillman case; and that he signed an order in the Tillman case. Finally, respondent does not dispute that he testified that it did not “dawn” on him to recuse himself from the King case and that his failure to recuse himself was a mere “oversight,” nor does he dispute that his e-mails and text messages to Mott reveal that he had given thought to his obligation to recuse himself from the case long before he finally did so. Although respondent argues about the significance of some of these facts and what the appropriate sanction should be in light of them, he does not dispute the above facts. In addition to the factual findings that we adopt from the JTC, we also find that respondent lied to the prosecutor’s office about Mott stalking and extorting him and about why he eventually recused himself in the King case. In addition, we find that respondent lied to the JTC about irrevocably terminating his relationship with Mott on October 31, 2012, and about whether he knew that Mott and Tillman were related and whether he took any action in the Tillman case. Finally, we find that respondent sent numerous text messages to Mott while he was on the bench that contained inappropriate and derogatory references to defendants, litigants, and witnesses appearing before him. Although we believe that the sanctions recommended by the JTC, and adopted by this Court today, would be warranted even without considering these additional findings of fact, we believe that these additional findings provide relevant background and context and demonstrate more fully the nature and magnitude of respondent’s misconduct. Furthermore, it is important to emphasize that, unlike the additional findings of fact made by the JTC and discussed in note 24 of this opinion, the additional findings of this Court do not relate to uncharged conduct, and thus respondent does not argue that we cannot consider these additional allegations. B. CONCLUSIONS OF LAW The JTC concluded that respondent engaged in “[mjisconduct in office ... [and] [cjonduct clearly prejudicial to the administration of justice, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30 and MCR 9.205” and violated MCR 9.104(1), (2), (3), and (4); MCR 2.003; MCR 2.103; MCR 2.114; and MCL 750.423, as well as Canons 1; 2(A), (B), and (C); and 3(A)(1) and (4) and (C) of the Code of Judicial Conduct. After reviewing the record and hearing oral arguments, we agree with and adopt almost all of the JTC’s conclusions of law. We agree with the JTC that respondent engaged in misconduct in office and conduct clearly prejudicial to the administration of justice within the meaning of Const 1963, art 6, § 30 and MCR 9.205. More specifically, we agree that respondent violated MCR 9.104(1) through (4) by engaging in “conduct prejudicial to the proper administration of justice”; “conduct that exposes the legal profession or the court to obloquy, contempt, censure, or reproach”; “conduct that is contrary to justice, ethics, honesty, or good morals”; and “conduct that violates the standards or rules of professional conduct adopted by the Supreme Court[.]” He violated MCR 2.003 by failing to disqualify himself in both the King and Tillman cases. He violated MCL 750.423 by testifying falsely under oath. He violated Canon 1 by failing to maintain “high standards of conduct so that the integrity and independence of the judiciary may be preserved.” He violated Canon 2 by failing to “avoid all impropriety and appear anee of impropriety,” failing to “promote public confidence in the integrity and impartiality of the judiciary,” and allowing a social relationship “to influence judicial conduct or judgment.” Finally, we agree that respondent violated Canon 3 by failing to “be faithful to the law,” engaging in ex parte communications, and failing to “raise the issue of disqualification.” C. SANCTIONS The purpose of the judicial disciplinary process is to “protect the people from corruption and abuse on the part of those who wield judicial power.” In re Jenkins, 437 Mich 15, 28; 465 NW2d 317 (1991). “In determining appropriate sanctions, we seek to ‘restore and maintain the dignity and impartiality of the judiciary and to protect the public.’ ” James, 492 Mich at 569, quoting In re Ferrara, 458 Mich 350, 372; 582 NW2d 817 (1998). We agree with the JTC’s assessment of the Brown factors— the considerations that this Court set forth to guide the formation of judicial-discipline recommendations. The first Brown factor states that “misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct[.]” Brown, 461 Mich at 1292. We agree with the JTC that respondent engaged in a pattern of misconduct when he maintained a sexual relationship with a complaining witness in a case before him for several months and repeatedly engaged in ex parte communications with her about the case as well as in another case in which her relative was a party. Respondent also engaged in a pattern of texting messages to Mott while he was on the bench that contained inappropriate and derogatory references to defendants, litigants, and witnesses appearing before him. Furthermore, respondent engaged in a practice of violating various security policies of the courthouse by permitting Mott to enter the courthouse through an employee entrance without going through security, allowing Mott to remain alone in his chambers while he was on the bench, arranging for Mott to park her vehicle in an area reserved for judges, and sneaking Mott’s cell phone into the courthouse for her. Finally, as the JTC explained, “the evidence revealed a pattern of dishonesty that included lying under oath to the Commission and to the Master.” Respondent lied to the Wayne County Prosecuting Attorney’s office about, among other things, when and why he recused himself from the King case, and he lied to the JTC and the master about, among other things, why it took him so long to finally recuse himself from the King case. As the master explained: For McCree to claim in sworn testimony during these proceedings that it was an OVERSIGHT or it didn’fi] DAWN on him that he should recuse himself is not credible. In short he lied to the JTC... .[ ] McCree’s problem with the truth is also shown in his contact with law enforcement officials in seeking to have pressure brought to bear on Mott. He told Prosecutor Worthy that a lady with whom he had a relationship was stalking him. There was no indication [made to Worthy] that he and his wife had been engaged in a plan of deception which resulted in continuing contacts between the parties, i.e., calls to secure the abortion, to complete negotiations for the divorce, etc.... He told [investigator] Robert Donaldson that he had recused himself from the King case when he found out that a child of Mott’s had interacted with one of his children. A lie. He told Detective Timothy Matlock that Mott had been stalking him by showing up at Belle Isle. He did not tell [him] that he got in the car and had a conversation with her. He was also a witness to the statement as to the basis for the transfer of the case which was a lie. Sharon Greer, the prosecutor who worked in McCree’s courtroom, was also told the same lie as to the basis for the transfer of the Rang case. ... [T]he events over the October 30 through late November period show a pattern of lies and deception by McCree.... As explained by the JTC, respondent also “falsely told the investigators that he immediately recused himself from the case once he realized the conflict.” Respondent’s pattern of dishonesty is perhaps best summed up in a text message from Mott to respondent: “guess I shoulda believd u in church when u said u can’t go 1 day without lien[.]” For all these reasons, we agree with the JTC that “[t]his factor weighs in favor of a more serious sanction.” The second Brown factor states that “misconduct on the bench is usually more serious than the same misconduct off the bench[.]” Id. Again, we agree with the JTC that respondent engaged in misconduct on the bench when he had a sexual relationship with a complaining witness in a case before him for several months without recusing himself and by engaging in ex parte communications with her about the case while he was on the bench. We also find that respondent engaged in misconduct on the bench when he transmitted numerous text messages to Mott while he was on the bench that contained inappropriate and derogatory references to defendants, litigants, and witnesses appearing before him. For these reasons, we agree with the JTC that this factor weighs in favor of a more serious sanction. The third Brown factor states that “misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of propriety[.]” Id. at 1293. As the JTC explained: A neutral and impartial judge is one of the central tenets of our judicial system. Respondent wholly disregarded his duty to remain a detached, impartial figure by engaging in a personal relationship with a litigant in a case before him and by regularly engaging in ex parte discussions regarding the litigant’s case, as well as another case in which the litigant had an interest. In addition, Respondent’s misrepresentations to the Commission and the Master were prejudicial to the actual administration of justice because they brought deceptive evidence before the Commission and the Master. We agree with the JTC that respondent’s misconduct was prejudicial to the actual administration of justice. Indeed, there is not much, if anything, that is more prejudicial to the actual administration of justice than having a sexual relationship with a complaining witness without recusing oneself, engaging in ex parte communications with this mistress/complaining witness, attempting to use the prosecutor’s office as leverage against this now ex-mistress by concocting charges of stalking and extortion against her, and then lying under oath about these matters. Accordingly, we agree with the JTC that this factor weighs in favor of a more serious sanction. Similarly, the fourth Brown factor states that “misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does[.]” Id. For the reasons already discussed, we agree with the JTC that respondent’s misconduct implicated the actual administration of justice. Therefore, we agree with the JTC that this factor supports the imposition of a more serious sanction. The fifth Brown factor states that “misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated[.]” Id. We agree with the JTC that respondent’s misconduct was premeditated or deliberated. Respondent’s sexual affair with Mott lasted for several months, giving respondent more than sufficient time to carefully reflect on his behavior. In addition, his e-mails and text messages to Mott demonstrate that he was well aware that what he was doing was unethical, and yet he continued to proceed with the relationship for a considerable period of time without recusing himself from the case in which his mistress was the complaining witness. Accordingly, we agree with the JTC that this factor weighs in favor of a more serious sanction. The sixth Brown factor states that “misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery[.]” Id. Lying under oath— • conduct in which respondent engaged- is certainly “misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy.” In addition, failing to recuse oneself from a case in which one’s mistress is the complaining witness, as respondent did in this case, is also misconduct that undermines the ability of the justice system “to reach the most just result in such a case.” As the JTC explained: [T]he ability of the justice system to reach the most just result in a case is undermined when one party has an intimate relationship with the judge and continually engages in ex parte communications regarding that party’s case while the other party is required to follow the rules and procedures governing the admission of evidence and the making of arguments to the court. Therefore, we agree with the JTC that this factor weighs in favor of a more serious sanction. Finally, the seventh Brown factor states that “misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion are more serious than breaches of justice that do not disparage the integrity of the system on the basis of a class of citizenship.” Id. We agree with the JTC that there is no evidence that respondent did anything to “disparage the integrity of the system on the basis of a class of citizenship” and that this factor does not weigh in favor of a more serious sanction. Finding that six of the Brown factors weigh in favor of a more serious sanction, and that “Respondent’s misconduct affected not only the litigants in the King and Tillman cases, but harmed the integrity of the judicial system as a whole,” the JTC concluded that removing respondent from office and conditionally suspending him without pay for six years beginning on January 1, 2015, with the suspension becoming effective only if respondent is reelected to judicial office in November 2014, would be a sufficient sanction. We agree. We believe that this sanction is necessary in order to sufficiently redress the harm done to the integrity and reputation of the judiciary. Just last term, this Court held that lying under oath “ ‘is entirely incompatible with judicial office and warrants removal.’ ” In re Adams, 494 Mich 162, 184-185; 833 NW2d 897 (2013), quoting In re Justin, 490 Mich 394, 419; 809 NW2d 126 (2012). In the instant case, as already set forth at length, respondent has done far more than lie under oath. And he committed most of this misconduct while being investigated by the JTC for other misconduct for which he has since been sanctioned. As explained by the master: [Respondent’s] actions in the King case show, however, a gross dereliction of judicial duties. His standard of conduct, for his own sexual gratification, has severely damaged the public’s view of the judiciary. His irresponsible conduct could only lead to the public having no confidence in the judiciary. He clearly knew he was especially subject to public scrutiny when he had a case pending before the JTC when he began his escapade with Mott. He knew he was on the “chopping block”. Yet he continued to engage in activities which would bring even greater scrutiny. He was using his judicial position to advance his own interests by keeping the King case. His social relationship gave Mott the belief that she was able to influence his judicial duties. He continuously engaged in ex [porte] communications with Mott about the case. Having already received substantial publicity over his photo sent to the deputy and his remarks to the press regarding same he should have been aware that when the story would break about his relationship with Mott and his handling of the King case all of his duplicity would be revealed. That the public’s trust in an independent and honorable judiciary would be put to the test. That respondent was prepared to engage in this conduct while already undergoing a pending JTC investigation demonstrates the extent of his disregard for the rules of judicial conduct. The people of this state need to know that this Court will not tolerate such disregard for even minimal ethical standards of conduct. Respondent questions this Court’s authority to remove him and conditionally suspend him. This Court’s authority to sanction a judge can be found in Const 1963, art 6, §§ 4 and 30. Section 4 provides this Court’s general superintending authority over courts: The supreme court shall have general superintending control over all courts; power to issue, hear and determine prerogative and remedial writs; and appellate jurisdiction as provided by rules of the supreme court. The supreme court shall not have the power to remove a judge. As this Court has explained: “The power of superintending control is an extraordinary power. It is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known and exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise. As new instances of these occur, it will be found able to cope with them. Moreover, if required, the tribunals having authority to exercise it will, by virtue of it, possess the power to invent, frame, and formulate new and additional means, writs, and processes whereby it may be exerted. This power is not limited by forms of procedure or by the writ used for its exercise.” [In re Huff, 352 Mich 402, 418; 91 NW2d 613 (1958) (citation omitted).] While “§ 4 does not comprehend the power to permanently enjoin a person from holding juridical office,” it does “invest [] this Court with the power to determine that a person is unfit for judicial office and to prevent him from ever exercising judicial power in this state for as long as he is, in our judgment, judicially unfit.” In re Probert, 411 Mich 210, 231, 233; 308 NW2d 773 (1981). In addition, Const 1963, art 6, § 30(2) provides, in pertinent part: On recommendation of the judicial tenure commission, the supreme court may censure, suspend with or without salary, retire or remove a judge for conviction of a felony, physical or mental disability which prevents the performance of judicial duties, misconduct in office, persistent failure to perform his duties, habitual intemperance or conduct that is clearly prejudicial to the administration of justice. Removal and suspension are sanctions that are expressly listed in § 30(2). Finally, [t]he power to suspend is also not limited to cases in which the judge currently holds judicial office. As this Court noted in Probert [411 Mich at 224], we possess the author ity under the constitution to issue conditional suspensions that “foreclose!] the exercise of the prerogatives inhering in any judicial office to which the disciplined party might have been elected or appointed in the future, the condition being, of course, re-election or appointment to judicial office.” Such conditional suspensions “disengage the disciplined party from judicial power” only if the person occupies judicial office again during the term of the suspension and do not permanently enjoin the person from holding judicial office. This Court has historically issued conditional suspensions when other sanctions could not fully and adequately address the effect of particular misconduct on the integrity of the judicial system. Although often the greatest danger will pass once “an unfit or incompetent judge is separated from judicial power,” this Court should not refuse to consider other sanctions, such as conditional suspensions, when removal alone cannot sufficiently protect the integrity of the judiciary. [James, 492 Mich at 576-577 (MARKMAN, J., concurring in part and dissenting in part) (citations omitted).] In Probert, 411 Mich at 222, this Court censured and conditionally suspended Judge Charles V. Probert for five years, “regardless of any possible intervening election or appointment to judicial office.” This Court could not remove Judge Probert because he had already left office as the result of his term ending and his defeat in his efforts at reelection. In Probert, this Court recognized that we had on three previous occasions “issued conditional suspensions that would have foreclosed the exercise of the prerogatives inhering in any judicial office to which the disciplined party might have been elected or appointed in the future, the condition being, of course, re-election or appointment to judicial office.” Id. at 223-224. This Court explained that “[t]he effect of those suspensions would have been to disengage the disciplined party from judicial power, but only had that person come to occupy judicial office again during the term of the suspension, and only to the extent that the terms of office and suspension coincided.” Id. at 224. See also In re Bennett, 403 Mich 178, 200; 267 NW2d 914 (1978), in which this Court suspended Judge Earl Warren Bennett for one year without pay “regardless of Judge Bennett’s election to another judicial office”; In re Del Rio, 400 Mich 665, 672; 256 NW2d 727 (1977), in which this Court suspended Judge James Del Rio for five years without pay “regardless of respondent’s possible intervening re-election to office or election to any other state court”; and In re Mikesell, 396 Mich 517, 549; 243 NW2d 86 (1976), in which we suspended Judge Willard L. Mikesell for IV2 years without pay “regardless of respondent’s possible intervening reelection to office or election to any other state court.” We agree with the JTC that a removal, without more, would be an insufficient sanction in this case. If we were to remove respondent and he were to be reelected in 2014, that would amount to a less than one-year suspension (less than two years including his interim suspension), which we believe is clearly insufficient given the seriousness of his misconduct. This Court has a duty to preserve the integrity of the judiciary. Allowing respondent to serve as a judge after only a one-year suspension will not, in our judgment, adequately preserve the integrity of our state’s judiciary. Respondent was just recently publicly censured by this Court and yet continued to engage in misconduct, with his attitude toward the instant JTC investigation perhaps being best summarized by his remark that although “Wade should have recused himself,” “no harm no foul.” This is strongly suggestive that respondent has not yet learned from his mistakes and that the likelihood of his continuing to commit judicial misconduct is high. Such a cavalier attitude about serious misconduct is disturb ing, and respondent’s apparent failure to comprehend fully the magnitude of his wrongdoing is equally troublesome. In summary, respondent had an affair with a complaining witness in a case pending before him, had numerous ex parte communications with that witness about the case, extended to her special treatment concerning the case, and caused her reasonably to believe that she was influencing how he was handling her case. When their relationship subsequently went sour, he sought to employ the prosecuting attorney’s office as leverage against her by concocting charges of stalking and extortion. And he lied repeatedly to the JTC and the master while under oath. Respondent is now unfit to serve as a judge, and he will remain unfit to do so one year from now. rv CONCLUSION The cumulative effect of respondent’s misconduct convinces this Court that respondent should not remain in judicial office, and we therefore remove him from that office and conditionally suspend him without pay for six years beginning on January 1, 2015, with the suspension becoming effective only if respondent is reelected to judicial office in November 2014. In addition, because respondent engaged in conduct involving “deceit” or “intentional misrepresentation,” pursuant to MCR 9.205(B) we order respondent to pay costs of $11,645.17 to the JTC. The Clerk of the Court is directed to issue the judgment order forthwith in accordance with this opinion and MCR 7.317(C)(3). Young, C.J., and Kelly, Zahra, McCormack, and Viviano, JJ., concurred with Markman, J. This Court ordered “respondent’s salary [to] be held in escrow pending the final resolution of these disciplinary proceedings.” McCree, 493 Mich at 935. Presumably, “FOC” means “Friend of the Court.” As a result of that JTC investigation, this Court adopted the JTC’s recommendation to publicly censure respondent. In re McCree, 493 Mich 873 (2012). Presumably, “B.D.” means “baby’s daddy.” This e-mail message demonstrates that respondent was clearly cognizant that he should have recused himself from the King case well before he did. This text message appears to suggest that respondent was untruthful about his reasons for recusing himself from the King case. Monica Conyers is a former Detroit City Council member. The complaint also alleged that “[t]he sexual acts between Respondent and Mott took place at various locations, including Respondent’s judicial chambers”; “[o]n numerous occasions, Respondent escorted Mott into the courthouse through the building’s back entrance, reserved for judges, court employees and members of the Wayne County Sheriffs Department”; “[o]n numerous occasions between May and mid-November of 2012, Respondent permitted Mott to remain in his judicial chambers while he was on the bench adjudicating his criminal docket”; and "Respondent assisted Mott in bringing her cell phone into his courtroom, in violation of a ‘no cell phones’ security policy of the Frank Murphy Hall of Justice.” The defendant in the King case owed Mott about $15,000 in child support, and the master found that "the Examiner’s theory that some of [respondent’s] motivation in having looked after this case and transferring it to a judge of his choice so it would ensure payment of the support and, thus, take off some of the financial pressure that was building for McCree in looking after two families is, by a preponderance, true” as respondent had “advanced money to Mott possibly as much as $6,000.” Respondent also told the prosecutor’s office that there was no way that he could have gotten Mott pregnant because he was the “king of latex” and that “Wade was being played.” Although the JTC found that respondent failed to tell the Wayne County Prosecuting Attorney that Mott had been a complaining witness in a case before him and that he falsely told the investigators that he had immediately recused himself from the case once he realized the conflict, the JTC did not otherwise address Count II. We agree with the master that respondent’s claims regarding stalking and extortion are not credible given the communications between respondent and Mott during this period. For example, on November 6, 2012, which according to respondent was during the period that Mott was stalking and extorting him, Mott sent the following text message to McCree: “being held in ur arms this afternoon meant so much to me[J” In addition, although there is evidence of numerous communications between respondent and Mott during this period, none of the communications in any way suggest that Mott was stalking or extorting respondent. For instance, none of the messages refers to Mott’s alleged demand for $10,000 in order to keep their affair a secret and obtain an abortion. This finding seems to be inconsistent with the master’s earlier finding that “ [o]f all people who should have known how allegedly private matters (the photo to the deputy) can get into the public domain it would be McCree.” Although the JTC, for reasons not known, did not address Count iy we feel compelled to note that we respectfully disagree with the master’s conclusion that respondent’s transmission of numerous text messages to Mott while he was on the bench that contained inappropriate and derogatory references to defendants, litigants, and witnesses appearing before him did not constitute judicial misconduct. Canon 2 of the Code of Judicial Conduct provides, in pertinent part: A. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. B. A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. Without regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect. It can fairly be said that at least several of respondent’s text messages to Mott did not “promote public confidence in the integrity and impartiality of the judiciary” and did not treat the subjects of those messages with “courtesy and respect.” To the contrary, we find that the evidence does indicate that respondent lied to the JTC about irrevocably terminating his relationship with Mott on October 31, 2012, because there is evidence of communications between respondent and Mott after October 31, 2010, that indicate that they were still romantically involved. For example, on November 6, 2012, Mott sent the following text message to McCree, “being held in ur arms this afternoon meant so much to me” and, on November 8, 2012, respondent sent the following text message to Mott, “I’ll C U 2morrow, & WE’LL ‘HAVE FUN”:-)” We note that this finding is consistent with the JTC’s finding that “Respondent’s relationship with Mott began on May 21, 2012, and lasted approximately through mid-November, 2012.” Contrary to the master’s conclusion, whether the JTC had sufficient evidence before it to know that respondent was lying when he said that he did not know that Mott and Tillman were relatives and that he did not take any action on the Tillman case is irrelevant to whether respondent committed judicial misconduct when he lied to the JTC. Lying to the JTC is judicial misconduct regardless of whether the JTC knows that you are lying or not. The master made the following additional findings of fact: (1) respondent and Mott had sexual relations in respondent’s judicial chambers; (2) “Mott was allowed on a number of occasions to use the judicial parking lot and to use the judges’ entry door”; (3) “McCree assisted Mott in bringing a cell phone into court so that she could communicate with him while King’s case was reviewed” and “[t]his was accomplished by Mott putting her cell phone in McCree’s truck, him bringing it into the court-house and then McCree putting it into an envelope so that a deputy could deliver it to Mott in the courtroom”; (4) Mott told McCree that she was pregnant with his child; (5) McCree told Mott that he would divorce his wife if Mott obtained an abortion; and (6) Mott told McCree that she would obtain an abortion if he divorced his wife. Finally, the master noted: Whether Mott is pregnant or not and who is the baby’s father are not of concern, we leave that for the Jerry Springer show. But the events over the October 30 through late November period show a pattern of lies and deception by McCree in his dealings with Mott (not to say that she was an innocent party in those events). Presumably, “C.E” means “complaining party.” Presumably, “C.S.” means “child support.” As discussed earlier, the JTC did not address Count IV The JTC also found that [dluring his relationship with Mott, Respondent used his chambers to engage in sexual intercourse with Mott, permitted Mott to enter the courthouse through an employee entrance without going through security, allowed Mott to remain alone in his chambers while he was on the bench, arranged for Mott to park her vehicle in an area reserved forjudges, and brought Mott’s cell phone into the courthouse for her, in violation of the court’s security policy, so that she could communicate with him while he was on the bench. MCR 9.205(B) provides: In addition to any other sanction imposed, a judge may be ordered to pay the costs, fees, and expenses incurred by the commission in prosecuting the complaint only if the judge engaged in conduct involving fraud, deceit, or intentional misrepresentation, or if the judge made misleading statements to the commission, the commission’s investigators, the master, or the Supreme Court. Respondent also does not dispute that he and Mott had sexual intercourse in his judicial chambers, that he permitted Mott to enter the courthouse through an employee entrance without going through security, that he allowed Mott to remain alone in his chambers while he was on the bench, that he arranged for Mott to park her vehicle in an area reserved for judges, and that he brought Mott’s cell phone into the courthouse for her, in violation of the court’s security policy, so that they could communicate with one another while he was on the bench. Although in his brief respondent’s counsel questions why respondent would lie about when he recused himself from the case, he does not expressly assert that respondent did not tell the investigators that he had immediately recused himself, hut instead argues that “[w]hether Judge McCree told the investigators that he ‘immediately’ recused himself once he realized the conflict is irrelevant.. ..” The JTC also found that (a) “[o]n August 17, 2012, Respondent called the office of Wayne Circuit Judge Susan Borman to check on a landlord-tenant matter Mott had before Judge Borman” and (b) “[o]n October 11, 2012, in violation of MCR 2.114, Respondent prepared and filed a divorce complaint against his wife even though, as he admitted at the formal hearing, he had no intention of going through with the divorce.” Respondent argues that “[b]eeause the JTC failed to give Judge McCree notice and an opportunity to respond to allegations concerning the phone call and filing the divorce complaint, they cannot he considered as a basis for discipline.” Because we conclude that the JTC’s recommended sanction is appropriate even without considering these additional allegations, it is not necessary for us to address whether it was appropriate for the JTC in this matter to consider the uncharged conduct. Although we agree with the examiner that “[m]any of these text messages are in clear violation of the Michigan Code of Judicial Conduct,” we question the examiner’s authority to argue before this Court that we should consider this misconduct when the JTC itself did not consider this misconduct. As this Court recently stated in In re Adams, 494 Mich 162, 186 n 19; 833 NW2d 897 (2013), “after the JTC has made its findings and its recommendation and the respondent has filed a petition to reject or modify the [JTC’s] recommendation, the role of the examiner is to represent the JTC before this Court.” See ¿so MCR 9.202(G)(1) (“The commission shall employ an executive director... to perform the duties that the commission directs ....”) and MCR 9.202(G)(2)(a) (“The executive director... shall not be present during the deliberations of the commission or participate in any other manner in the decision to file formal charges or to recommend action by the Supreme Court....”). It does not appear that the examiner was “represent[ing] the JTC before this Court” when he argued that we should find that respondent committed misconduct by sending these inappropriate messages to Mott when the JTC itself did not make such a finding. The fact that respondent was aware that the defendant in the Tillman case was Mott’s relative and that he nonetheless engaged in ex parte communications with Mott about the case without recusing himself at the very least created an appearance of impropriety. Canon 1 provides: An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. A judge should always be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary. The provisions of this code should be construed and applied to further those objectives. Canon 2 provides, in pertinent part: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities A. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. B. A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. Without regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect. C. A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should not use the prestige of office to advance personal business interests or those of others, but participation in activities allowed in Canon 4 is not a violation of this principle. Canon 3 provides, in pertinent part: A Judge Should Perform the Duties of Office Impartially and Diligently A. Adjudicative Responsibilities. (1) A judge should be faithful to the law and maintain professional competence in it. A judge should be unswayed by partisan interests, public clamor, or fear of criticism. (4) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.... C. Disqualification. A judge should raise the issue of disqualification whenever the judge has cause to believe that grounds for disqualification may exist under MCR 2.003(B). Given that we do not address the uncharged allegations, see note 24 of this opinion, we do not address the JTC’s conclusions of law that pertain to the uncharged allegations, i.e., the JTC’s conclusion that respondent violated MCR 2.103 and MCR 2.114. The Brown factors are nonexclusive and are prefaced by the language “everything else being equal[.]” Brown, 461 Mich at 1292. Respondent admits that consideration of the first Brown factor “indicates more serious misconduct.” As then Justice Young explained in In re Noecker: Where a respondent judge readily acknowledges his [or her] shortcomings and is completely honest and forthcoming during the course of the Judicial Tenure Commission investigation,... the sanction correspondingly can be less severe. However, where a respondent is not repentant, but engages in deceitful behavior during the course of a Judicial Tenure Commission disciplinary investigation, the sanction must be measurably greater. [In re Noecker, 472 Mich 1, 18; 691 NW2d 440 (2005) (Young, J., concurring).] Respondent “admits that his decision to go forward with the August 16 hearing in King was misconduct on the bench.” Respondent argues that his “failure to recuse himself in King is ‘prejudicial only to the appearance of propriety’ ” because “King was treated exactly the same as any other felony nonsupport defendant who fails to meet his payment obligations under a delayed sentence agreement ....” No one, of course, can ever know with certainty whether respondent would have treated King in exactly the same manner had he not been engaged in an affair with the mother of King’s child. However, even assuming that respondent’s relationship with Mott, including his ex parte communications with her about the case, had no effect on respondent’s treatment of King, and thus was somehow not prejudicial to the actual administration of justice, respondent’s other misconduct, including lying under oath and falsely accusing Mott of stalking and extorting him, was certainly prejudicial to the actual administration of justice. Respondent “admits that his failure to recuse himself before the August 16 hearing in King implicates the appearance of impropriety.” Respondent admits that his “failure to recuse himself in King cannot be considered ‘spontaneous.’ ” Respondent agrees “that discipline is warranted,” and he concedes that four of the Brown factors weigh in favor of a more serious sanction. However, he argues that this Court should merely “sus pendD him for the duration of his interim suspension.” For the reasons discussed throughout this opinion, we do not believe that such a suspension, which would amount to a little over a one-year suspension, would sufficiently address the harm that respondent has done to the integrity and reputation of the judiciary. Respondent argues that his misconduct is analogous to Judge Susan R. Chrzanowski’s misconduct and that Judge Chrzanowski was only suspended for 1 year and was given credit for 6 months of her 17-month interim suspension. See In re Chrzanowski, 465 Mich 468,489; 636 NW2d 758 (2001). However, respondent fails to acknowledge that his misconduct was far more extensive than Judge Chrzanowski’s misconduct. Judge Chrzanowski appointed an attorney with whom she was having an affair to represent indigent defendants, presided over those cases without disclosing this relationship, and initially made false statements to the police who were investigating the death of this attorney’s wife. Although there are some similarities between Judge Chrzanowski’s and respondent’s misconduct, respondent did far more than have an affair with an interested person in a case pending before him and then initially lie about it. He also engaged in numerous ex parte communications, violated various security policies of the courthouse, transmitted numerous inappropriate text messages, concocted charges of stalking and extortion, and lied under oath during the JTC proceedings. As this Court explained in Adams, 494 Mich at 186, “[t]his Court has consistently imposed the most severe sanction by removing judges for testifying falsely under oath.” See In re Ryman, 394 Mich 637, 642-643; 232 NW2d 178 (1975); In re Loyd, 424 Mich 514, 516, 535-536; 384 NW2d 9 (1986); Ferrara, 458 Mich at 372-373; In re Noecker, 472 Mich 1, 12-13; 691 NW2d 440 (2005); In re Nettles-Nickerson, 481 Mich 321, 322-323; 750 NW2d 560 (2008); Justin, 490 Mich at 396-397; James, 492 Mich at 568-570. Contrary to respondent’s contention, this Court’s exercise of the superintending power is not impermissibly “at odds with the right of Michigan voters to choose their judicial officers,” but rather upholds the authority of that same people, as they have exercised it in Const 1963, art 6, to invest in this Court the obligation to define standards of judicial conduct and, in coordination with the JTC, impose sanctions for their violation. Just as the people have chosen in their Constitution to establish standards of judicial fitness in terms of legal experience and age maximums, Const 1963, art 6, § 19(2) and (3), “we the people” have chosen to do the same with regard to ethical standards of conduct: [T]he elective nature of the judicial office does not relieve this Court of its duty to preserve the integrity of the judiciary, nor does the fact of popular election insulate or immunize a judge from the consequences of his or her misconduct, any more than an elected public official is insulated or immunized by election to office from being held to account for criminal law violations. To be sure, the elective power of the people does include the responsibility to ensure the qualifications of those elected, but they do not bear this responsibility alone. Our Constitution provides that in addition to this responsibility on the part of the electorate, this Court has a separate and distinct duty to uphold the integrity of the judiciary. The people’s discharge of their duty through election does not discharge this Court’s separate duty to preserve the integrity of the judiciary. Rather, this Court’s obligation to maintain the integrity of the judicial branch is indissoluble, and the fact of election does not dispel the harmful effects of judicial misconduct, either within or beyond the boundaries of the election district. .. . The people are entitled to a judiciary of the highest integrity, in both appearance and in fact, and this Court always bears the obligation under the constitution adopted by “we the people” to maintain and enforce standards of judicial fitness. [James, 492 Mich at 573-574 (Markman, J., concurring in part and dissenting in part).] Respondent is no longer a judicial officer and will not be an incumbent at the time of the 2014 3rd Circuit Court election. See In re Nettles-Nickerson, 481 Mich 321, 323; 750 NW2d 560 (2008).
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KELLY, J. After nearly a decade of litigation and alternative dispute resolution proceedings, the indemnification contract underlying the troubled natatorium roof in this case again wends its way to this Court. We previously held that the six-year period of limitations of MCL 600.5807(8) applies to the parties’ indemnification contract. We now hold that the indemnity clauses in the parties’ subcontract apply here, because the plain language of the indemnification clauses extends to Ahrens’s failure to undertake corrective work as obligated by the subcontract. We further hold that Sherman Lake YMCA made a “claim” upon Miller-Davis which triggered Ahrens’s liability under the indemnity clauses. Ahrens’s failure to indemnify therefore caused the damages Miller-Davis sustained in undertaking the corrective work itself. Finally, we hold that Miller-Davis’s claim was not barred by the six-year statute of limitations found in MCL 600.5807(8). Rather, Miller-Davis’s breach of contract claim for Ahrens’s failure to indemnify is distinct from its breach of contract claim based on Ahrens’s failure to install the roof according to specifications, and Miller-Davis’s indemnity action necessarily accrued at a later point. We therefore reverse that portion of the Court of Appeals’ opinion discussing Miller-Davis’s indemnity claim, and remand this case to the Kalamazoo Circuit Court for entry of judgment in Miller-Davis’s favor and to determine whether Miller-Davis is entitled to attorney’s fees under the relevant indemnification clauses. I. FACTS AND PROCEDURAL HISTORY Miller-Davis Company was an “at risk” contractor for the Sherman Lake YMCA’s natatorium project. Miller-Davis hired defendant Ahrens Construction, Inc., as a subcontractor to install similar roof systems on three rooms, including the natatorium. The contract incorporated by reference the applicable project plans and specifications, the American Institute of Architects General Conditions (AIA A201), the project manual, and a written guarantee of Ahrens’s work. AIA A201 required the subcontractor to “assume toward the Contractor all the obligations and responsibilities which the Contractor, by these Documents, assume[d] toward the Owner and Architect.” It further obligated Ahrens to “bear costs of correcting such rejected Work, including additional testing and inspections and compensation for the Architect’s services and expenses made necessary thereby,” and to correct at its expense any work “found to be not in accordance with the Contract Documents” within one year of Substantial Completion. Ahrens agreed to install all products in accordance with the manufacturer’s instructions and the requirements of the plans and specifications. Ahrens further agreed to indemnify Miller-Davis from and against any liabilities, claims, damages, losses, actions, and expenses arising out of the subcontract. - Ahrens substantially completed the work on June 11, 1999, at which point its Written Guarantee commenced. The Guarantee provides in relevant part: [Ahrens] hereby agree [s] that all work furnished to the project is guaranteed against deficiencies and defects in materials and/or workmanship for a period of one (1) year, as described in the Contract Documents. We agree to satisfy such obligations, which appear within the guarantee period without cost to the Owner. Nothing contained in this agreement shall be construed to establish a period of limitation with respect to any other obligation we may have under the Contract Documents or to alter any longer period of time as may be prescribed by law of the Contract Documents. A certificate of substantial completion issued on June 25, 1999. During the winter season of 1999-2000, Sherman Lake YMCA experienced excessive condensation in the natatorium, which it termed the “natatorium moisture problem” (NMP). As a result of the accumulated conden sation, it sometimes appeared to be raining within the natatorium. Miller-Davis notified Ahrens of the NMP on January 28, 2000, and Ahrens returned to the project to undertake remedial work not contemplated in the original design. Ahrens received its final payment on February 17, 2000, but the NMP persisted. In February 2003, the project architects opened the roof and discovered significant deficiencies with Ahrens’s installation of the roof system, namely inch-wide gaps between the Styrofoam blocks and sub-T supports, and many gaps and tears in the vapor barrier. The architects determined that the installation was not in substantial compliance with the contract, and directed reinstallation of the roof system using salvageable materials to the extent possible. The corrective work contained three elements not contained in the original design: Procor, a waterproofing agent; expanding foam insulation; and butyl caulk sealant. By letter dated April 2, 2003, Miller-Davis notified Ahrens that the roof system was not installed in accordance with the manufacturer’s requirements and the subcontract guidelines. Miller-Davis’s May 5, 2003 letter to Merchants Bonding Company, Ahrens’s surety, explicitly declared Ahrens in default and requested a conference within fifteen days. The parties met on June 27,2003, and Ahrens agreed to review the corrective work plans and provide a plan for performance within a week. Neither Ahrens nor its bonding company provided such a plan. On July 15, 2003, Miller-Davis gave Ahrens notice of default, terminated Ahrens’s right to perform the contract, and demanded the bonding company perform under the bond. In that letter, plaintiff noted that Sherman Lake YMCA was “considering declaring a Contractor Default....” The bonding company notified Miller-Davis that Ahrens had waived the surety’s right to perform under the bond. Miller-Davis and Sherman Lake YMCA entered into an Agreement for Corrective Work on August 27, 2003. Pursuant to the agreement and at the direction of the architects, Miller-Davis installed Procor, expanding foam insulation, and butyl caulk. On December 8, 2003, an independent contractor certified that Miller-Davis had completed the corrective work. Sherman Lake YMCA has not since experienced the NMR Miller-Davis filed suit in the Kalamazoo Circuit Court against Ahrens and its bonding company in May 2005, alleging breach of contract and seeking indemnification and bond collection. Following a bench trial, the circuit court found that Ahrens’s work was deficient and that it caused the NMR The court rejected Ahrens’s assertion that it had ceased involvement with the project before July 2003, noting that the parties had engaged in a series of meetings regarding corrective work from March to July 2003. Although the court found that “no claims, suits, actions, recoveries, or demands were ever made or recovered” by Sherman Lake YMCA against Miller-Davis, it found that Miller-Davis had nonetheless suffered damages as a result of Ahrens’s deficient work and awarded Miller-Davis damages of $348,851.50. On appeal, Ahrens argued that the circuit court erred by not granting summary disposition in its favor based on the contractor’s statute of repose, MCL 600.5839(1). The Court of Appeals agreed. We reversed, holding that the general statute of limitations for contract actions set forth in MCL 600.5807(8) applies to this case rather than the contractor’s statute of repose, which applies only to tort actions against a contractor. We remanded to the Court of Appeals for application of the proper statute of limitations and for consideration of any remaining issues. On remand, the Court of Appeals explained that MCL 600.5827 provided that Miller-Davis’s claim ac crued at the time of the wrong upon which it was based rather than the time when damage resulted. According to that distinction, the Court of Appeals determined that “the underlying basis for [Miller-Davis’s] claim is that defendant breached a contract provision providing that [a]ll. .. work furnished on this order shall comply with the terms and requirements of the plans and specifications . . . .’ ” As a result, it held that Ahrens’s breach occurred upon the date of substantial completion, which was beyond the six-year statute of limitations for breach of contract actions supplied by MCL 600.5807(8). The Court of Appeals also held that the indemnity clauses did not affect its conclusion, explaining that “no one had brought a claim or demand against plaintiff within the meaning of the indemnification clause.” The Court of Appeals found that “defendant did not breach [the indemnity] provision[s] of the contract,” and Miller-Davis could not use the date of defendant’s alleged breach of the indemnity clause as an “alternative accrual date” for its underlying breach of contract claim. The Court of Appeals also concluded that even if Miller-Davis could show that Sherman Lake YMCA made a claim or demand against plaintiff, such a demand “arose out of the owner’s contract with plain tiff, not plaintiffs subcontract with defendant.” Finally, the Court of Appeals determined that Miller-Davis had failed to provide evidence causally linking Ahrens’s nonconforming work to the NMIJ which it considered to be the basis for Miller-Davis’s claim for damages. We again granted Miller-Davis’s application for leave to appeal, requesting that the parties brief: (1) whether the indemnification clause in the plaintiffs contract with defendant Ahrens applies to this case; (2) if so, whether the plaintiffs action for breach of that provision was barred by the statute of limitations, MCL 600.5807(8); and (3) whether the plaintiff adequately proved that any breach of the indemnification clause caused its damages, including the issue whether the trial court clearly erred in concluding that defendant Ahrens’ performance of nonconforming work caused the natatorium moisture problem.[ ] II. STANDARD OF REVIEW Resolution of this case requires interpretation of MCL 600.5807(8). We review this question of law de novo. The proper interpretation of a contract is also a question of law that we review de novo. We review a trial court’s findings of fact for clear error, giving particular deference to the trial court’s superior position to determine witness credibility. A factual finding is clearly erroneous if there is no substantial evidence to sustain it or if, although there is some evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. III. ANALYSIS AND APPLICATION To determine whether Miller-Davis has an actionable claim for indemnification, we will first consider the language of the indemnity clauses, ascertaining whether they apply to the facts of this case. If these clauses apply, we must then consider whether Miller-Davis has shown that Ahrens’s failure to conduct corrective work caused Miller-Davis’s damages. Finally, we determine whether Miller-Davis sustained any such damages within the six-year limitations period for breach of contract actions found in MCL 600.5807(8). A. INDEMNIFICATION An indemnity contract creates a direct, primary liability between the indemnitor and the indemnitee that is original and independent of any other obligation. In the construction context, indemnity clauses between general contractors (indemnitees) and subcontractors (indemnitors) are common, with general contractors and subcontractors ultimately liable to the project owner. Michigan law provides contracting parties with broad discretion in negotiating the scope of indemnity clauses. The only legal restriction upon indemnity in the subcontractor context is the prohibition on indemnification against the “sole negligence” of the contractor, which is not at issue here. As with any other contract, our primary task in construing a contract for indemnification is to give effect to the parties’ intention at the time they entered into the contract. We determine the parties’ intent by examining the language of the contract according to its plain and ordinary meaning. In doing so, we avoid an interpretation that would render any portion of the contract nugatory. We assess the threshold question whether a contract’s indemnity clause applies to a set of facts by a “straightforward analysis of the facts and the contract terms.” Where parties have expressly contracted for indemnification, “the extent of the duty must be determined from the language of the contract.” To this end, the indemnity clauses in the parties’ subcontract are critical in applying general indemnification principles to the facts of this case. The subcontract provides in relevant part: You [Ahrens] as Subcontractor/Supplier agree to defend, hold harmless and indemnify Miller-Davis Company... from and against all claims, damages, losses, demands, liens, payments, suits, actions, recoveries, judgments and expenses including attorney’s fees, interest, sanctions, and court costs which are made, brought, or recovered against Miller-Davis Company, by reasons of or resulting from, but not limited to, any injury, damage, loss, or occurrence arising out of or resulting from the performance or execution of this Purchase Order and caused, in whole or in part, by any act, omission, fault, negligence, or breach of the conditions of this Purchase Order by the Subcontractor/Supplier, its agents, employees, and subcontractors regardless of whether or not caused in whole or in part by any act, omission, fault, breach of contract, or negligence of Miller-Davis Company. The Subcontractor/Supplier shall not, however, be obligated to indemnify Miller-Davis Company for any damage or injuries caused by or resulting from the sole negligence of Miller-Davis Company.[ ] The plain language of this clause is inclusive. The clause uses the terms “all” or “any,” which provide for the broadest possible obligation to indemnify. The language used by the parties in contracting for indemnity is unambiguous and clearly intended to apply as broadly as possible. Nevertheless, the Court of Appeals determined that the indemnity clauses were inapplicable because “no one had brought a claim or demand against plaintiff within the meaning of the indemnification clause.” While the indemnity clauses specifically mention a “claim,” they also trigger liability more broadly, when “damages, losses, demands,” or “expenses,” result from “any act, omission, fault, negligence, or breach ....” Furthermore, the definition of “claim” itself is broad. Black’s Law Dictionary defines a claim as the “aggregate of operative facts giving rise to a right enforceable by a court,” and “any right to payment or to an equitable remedy. . . .” Moreover, ALA A201, § 4.3.1, incorporated into the subcontract, defines a claim as “a demand or assertion by one of the parties seeking, as a matter of right,. . . relief with respect to the terms of the Contract,” as well as “other disputes and matters in question ... arising out of or relating to the Contract.” It further requires any claims to be made in writing. To determine whether Sherman Lake YMCA made a written claim or demand against Miller-Davis, we look to the Agreement for Corrective Work they entered into. That agreement specified that Miller-Davis “acknowledges it has responsibility to correct work or replace materials that are not in compliance with the contract documents” and that “subcontractor Ahrens did not install one or more components of the Roof System in accordance with the Owner-Contractor contract documents.” The purpose of the agreement was to “avoid differences or any dispute that may be time consuming, financially expensive and/or not in the best interest of any of [the parties] or the users of the Project,” and it goes on to outline “the rights and obligations” of the parties. “Nothing herein,” it continues, “shall. . . release any rights of claim the Owner, and/or the Contractor may now have or hereafter acquire against any third person regarding responsibility for the NMP . . . .” The agreement termed this course of action a “compromise, settlement and accord ... to effect a settlement of contested claims.” A straightforward reading of the Agreement for Corrective Work confirms that Sherman Lake YMCA possessed a claim or demand against Miller-Davis that was resolved — at Miller-Davis’s expense — by this settle ment between them. That Sherman Lake YMCA and Miller-Davis succeeded in resolving their dispute without resort to legal action does not alter Ahrens’s obligation to indemnify Miller-Davis for the corrective work it was required to undertake in light of Ahrens’s default. The indemnity provisions do not require Sherman Lake YMCA to prove liability or initiate a lawsuit or arbitration proceeding against Miller-Davis for Miller-Davis to seek indemnification from Ahrens for the corrective work it performed under the Agreement, nor do we see any question regarding the reasonableness of that agreed-upon work or Miller-Davis’s liability to Sherman Lake YMCA for it. As a result, we hold that the indemnity clauses of the subcontract apply to Miller-Davis’s corrective work. B. CAUSATION We turn next to the Court of Appeals’ conclusion that Miller-Davis is not entitled to indemnification because it has failed to sufficiently demonstrate that Ahrens’s nonconforming work caused the NME As the Court of Appeals recognized, causation of damages is an essential element of any breach of contract action, including an action for indemnity. A party asserting a breach of contract must establish by a preponderance of the evidence that (1) there was a contract (2) which the other party breached (3) thereby resulting in damages to the party claiming breach. The Court of Appeals, however, misconstrued the relevant causation inquiry. There is no dispute that Miller-Davis incurred costs in undertaking the corrective work that Ahrens refused to perform, and that Miller-Davis has claimed those costs as damages. Therefore, to the extent that Ahrens was obligated to indemnify Miller-Davis for the costs of the corrective work, its breach of that obligation caused Miller-Davis’s claimed damages. Whether Ahrens’s nonconforming work caused the NMP is not relevant to this analysis. Nor do the terms of the subcontract require Miller-Davis to show that Ahrens caused the NME Under the subcontract, Ahrens is obligated to indemnify Miller-Davis for, among other things, all claims and demands made or brought against Miller-Davis “by reasons of or resulting from, but not limited to, any injury, damage, loss, or occurrence arising out of or resulting from the performance of execution of [the subcontract] and caused, in whole or in part, by any act, omission, fault, negligence, or breach of the conditions of this [subcontract] by” Ahrens. At no point did Sherman Lake YMCA demand, or Miller-Davis guarantee, to correct the NME Indeed, the Agreement for Corrective Work made clear that Miller-Davis did not concede that Ahrens’s work caused the NMP: “The Contractor does not acknowledge that its or any subcontractor’s non-conforming work or materials were or are a contributing or the sole cause of the NME” Rather, Miller-Davis acknowledged only that it “has the responsibility for construction of the Project in accordance with the Owner-Contractor contract documents” under the Agreement for Corrective work, never promising to resolve the NME Correspondingly, Miller-Davis maintained at trial and throughout its communication with Ahrens that it does not know whether Ahrens’s workmanship caused the NME Ahrens, for its part, was obligated to install the roof system in accordance with the plans and specifications and to correct any nonconforming installation, regardless of whether its nonconforming work caused the NME Accordingly, as the terms of the subcontract and the Agreement for Corrective Work make clear, Miller-Davis was only obligated, in light of Ahrens’s default, to correct Ahrens’s nonconforming work; whether such correction resolved the NMP is separate from the question whether Ahrens’s nonconforming work caused Miller-Davis damages for which it could seek indemnification. Miller-Davis has shown that Ahrens’s failure to undertake corrective work caused those damages by way of Sherman Lake YMCA’s demand that Miller-Davis itself correct the work. Ahrens’s refusal to correct its nonconforming work was a “but for” cause of the Agreement for Corrective Work, which passed liability for that work on to Miller-Davis. Miller-Davis’s duty to undertake the corrective-work obligation shirked by Ahrens resulted in the out-of-pocket expenses— “damages” or “losses” — sustained by Miller-Davis in the course of reinstalling the roof. Because Miller-Davis presented sufficient evidence to establish that Ahrens’s breach of the indemnity clauses caused its losses in correcting Ahrens’s work, Miller-Davis is entitled to damages in the amount of its losses. We therefore reverse the Court of Appeals’ contrary conclusion. C. STATUTE OF LIMITATIONS Nevertheless, Ahrens also asserts that Miller-Davis brought its breach of contract action beyond the relevant limitations period. MCL 600.5807(8) provides that “[n]o person may bring or maintain an action to recover damages or sums due for breach of contract. . . unless, after the claim first accrued ..., he commences the action within ... 6 years . . . .” The six-year limitation of MCL 600.5807(8) begins to run “when the promisor fails to perform under the contract.” A specific action for indemnification against losses accrues “when the indemnitee [has] sustained the loss.” The Court of Appeals examined the subcontract to determine the wrong on which Miller-Davis’s claims were based, explaining that the “underlying basis” for its claims was Ahrens’s breach of the contract provision that “ ‘[a]ll materials and/or work furnished on this order shall comply with the terms and the requirements of the plans and specifications . .. ” As a result, the Court of Appeals held that the wrong that provided the basis for Miller-Davis’s complaint “must have occurred on or before defendant completed its portion of the overall construction project.” This analysis fails to recognize that Ahrens twice breached the contract: first, when it failed to install the roof system in accordance with the relevant plans and specifications, and then later when it refused to indemnify Miller-Davis for the corrective work required to remedy its nonconforming installation. While these contract claims were both based on terms within the same agreement, nothing in MCL 600.5807 or our contract-law principles compels the conclusion that the claims must therefore share a common point of accrual. Rather, the date of accrual for the breach of an indemnified promise does not serve as the date of accrual for an indemnity action. These separate breaches have logically distinct points of accrual. Ahrens first failed to perform under the contract when it installed a roof that did not conform to plan specifications. The cause of action for this breach accrued by April 1999, when Miller-Davis made its last payment to Ahrens under the subcontract. This oc curred more than six years before Miller-Davis brought suit in May 2005. As a result, Miller-Davis’s cause of action for breach of Ahrens’s promise to install a roof conforming to plan specifications is barred by MCL 600.5807(8). However, Ahrens’s breach of the indemnity provision provides an independent basis for Miller-Davis’s current indemnification claim. This breach necessarily occurred after Ahrens’s breach of the underlying promise to conform its work to the subcontract’s specifications. This is because no demand or claim upon Miller-Davis could trigger Ahrens’s obligation to indemnify until after Ahrens had breached its promise to install the roof system according to the specifications. Miller-Davis offers three potential points of first accrual for this claim: February 26, 2003 (when Miller-Davis conducted a partial tear-off of the roof and discovered the nonconforming work); August 27, 2003 (when Miller-Davis settled Sherman Lake YMCA’s claims via the Agreement for Corrective Work); and December 8, 2003 (when an independent engineering firm certified that Miller-Davis had corrected Ahrens’s defective work). We need not decide which of these dates marks the accrual of Miller-Davis’s cause of action for indemnity because we agree the claim did not accrue before February 2003 and Miller-Davis’s May 2005 complaint was therefore well within the six-year period of limitations. Accordingly, we hold that Miller-Davis’s indemnification claim was not barred by MCL 600.5807(8). IV CONCLUSION The Court of Appeals erred by concluding that the indemnity clauses in the parties’ subcontract were inapplicable because no third party made a claim or demand upon Miller-Davis. Rather, Miller-Davis en tered into the Agreement for Corrective Work with Sherman Lake YMCA that clearly established Sherman Lake YMCA’s claim against Miller-Davis that Ahrens’s installation of the natatorium did not conform to the subcontract’s specifications. Miller-Davis’s indemnity claim for Ahrens’s failure to undertake corrective work is logically distinct from its breach of contract claim for Ahrens’s faulty installation of the roof system, and necessarily accrued at a later point. As such, the Court of Appeals further erred to the extent it held that Miller-Davis’s indemnity claim was barred by MCL 600.5807(8) because it accrued on the date of substantial completion. Because Sherman Lake YMCA made a claim or demand upon Miller-Davis for corrective work which Ahrens was obligated to perform, and Ahrens refused to indemnify Miller-Davis for undertaking that work, Miller-Davis has established that Ahrens caused its damages. We therefore reverse that portion of the Court of Appeals’ opinion discussing Miller-Davis’s indemnity claim, and remand this case to the Kalamazoo Circuit Court for entry of judgment in Miller-Davis’s favor and to determine whether Miller-Davis is entitled to attorney’s fees under the relevant indemnification clauses. Young, C.J., and Cavanagh, Markman, Zahra, McCormack, and Viviano, JJ., concurred with Kelly, J. Miller-Davis was contractually obligated to the owner, Sherman Lake YMCA, to fulfill the obligations of all subcontractors in the event of a subcontractor default. Sherman Lake YMCA is not a party to this action. We disagree with the Court of Appeals that the record was unclear whether AIA A201 was part of the subcontract, or that Miller-Davis waived any arguments regarding AIA A201. The parties expressly stipulated at trial that AIA A201 was incorporated by reference and made part of their subcontract. AIA A201 5.3. AIA A201 12.2.1. AIA A201 12.2.2. Merchants Bonding Company’s liability is no longer at issue in this case. See Miller-Davis Co v Ahrens Constr, Inc, 489 Mich 355, 370 n 36; 802 NW2d 32 (2011). As a result, “defendant” refers only to Ahrens. MCL 600.5839(1) provides: A person shall not maintain an action to recover damages for injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective or unsafe condition of an improvement to real property, or an action for contribution or indemnity for damages sustained as a result of such injury, against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of the improvement, or against any contractor making the improvement, unless the action is commenced within either of the following periods: (a) Six years after the time of occupancy of the completed improvement, use, or acceptance of the improvement. (b) If the defect constitutes the proximate cause of the injury or damage for which the action is brought and is the result of gross negligence on the part of the contractor or licensed architect or professional engineer, 1 year after the defect is discovered or should have been discovered. However, an action to which this subdivision applies shall not be maintained more them 10 years after the time of occupancy of the completed improvement, use, or acceptance of the improvement. Miller-Davis Co v Ahrens Constr, Inc, 285 Mich App 289, 292; 777 NW2d 437 (2009). MCL 600.5807 provides: No person may bring or maintain any action to recover damages or sums due for breach of contract, or to enforce the specific performance of any contract unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section. (8) The period of limitations is 6 years for all other actions to recover damages or sums due for breach of contract. Miller-Davis, 489 Mich at 363-364. Id. at 371-372. MCL 600.5827 provides: Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results. Miller-Davis Co v Ahrens Constr, Inc (On Remand), 296 Mich App 56, 61; 817 NW2d 609 (2012). Id. at 69. Id. at 70. Id. Id. at 71-72. Miller-Davis Co v Ahrens Constr, Inc, 494 Mich 861; 831 NW2d 234 (2013). People v Cole, 491 Mich 325, 330; 817 NW2d 497 (2012). In re Smith Trust, 480 Mich 19, 24; 745 NW2d 754 (2008). People v Farrow, 461 Mich 202, 208-209; 600 NW2d 634 (1999). Beason v Beason, 435 Mich 791, 803; 460 NW2d 207 (1990). In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). 41 Am Jur 2d, Indemnity, § 4, p 417. MCL 691.991. Smith Trust, 480 Mich at 24. Id. Lukazewshi v Sovereign Camp, WOW, 270 Mich 415, 420; 259 NW 307 (1935). Grand Trunk W R, Inc v Auto Warehousing Co, 262 Mich App 345, 356-357; 686 NW2d 756 (2004). Id. at 353. Emphasis added. Indeed, another clause provides: You [Ahrens] agree to defend and save harmless and to indemnify MILLER-DAVIS COMPANY from any and all liens or claims arising out of the performance or fulfillment of this order and to ’furnish such guarantees as may he required, as to workmanship and materials. (Emphasis added.) Pritts v J I Case Co, 108 Mich App 22, 30; 310 NW2d 261 (1981) (“[T]here cannot be any broader classification than the word ‘all.’ In its ordinary and natural meaning, the word ‘all’ leaves no room for exceptions.”) (citations and quotation marks omitted). Miller-Davis (On Remand), 296 Mich App at 69. Black’s Law Dictionary (9th ed), pp 281-282 (emphasis added). See Grand Trunk, 262 Mich App at 354-355. Miller-Davis argues that it is entitled to attorney fees under the indemnification clauses. Because the trial court and the Court of Appeals determined that Miller-Davis did not establish a breach of the indemnification clauses, they did not consider whether Miller-Davis was entitled to attorney fees under the clauses. We decline to address this argument in the first instance and make no determination whether Miller-Davis is entitled to attorney fees under the relevant indemnification clauses. Instead, we remand to the trial court for further consideration of this issue. Miller-Davis (On Remand), 296 Mich App at 71-72 (“The specific weakness in plaintiffs case is the lack of evidence to causally link defendant’s alleged nonconforming workmanship to the moisture problem, which is the basis for plaintiffs claim for damages in the form of expenses to correct the cold-weather condensation problem in the YMCA’s natatorium.”). New Freedom Mtg Corp v Globe Mtg Corp, 281 Mich App 63, 69; 761 NW2d 832 (2008). Stevenson v Brotherhoods Mut Benefit, 312 Mich 81, 90-91; 19 NW2d 494 (1945). AIA A201, § 12.2.1-2. See Part III(A) of this opinion. Ahrens stresses that the corrective work performed by Miller-Davis went beyond that specifically required by the original plans and specifications. We see no clear error, however, in the circuit court’s conclusion that these additional measures were necessary to mitigate the expense of correcting Ahrens’s nonconforming work. Likewise, even though the inquiry has no bearing here, we see no clear error in the circuit court’s determination that Ahrens’s nonconforming work caused the NMP; contrary to the Court of Appeals’ suggestion, this determination was not based simply on “an inference drawn from the fact that after the corrective work the problem was not present,” but rather was supported by dozens of exhibits and the testimony of numerous witnesses. MCL 600.5807(8). Cordova Chem Co v Dep’t of Natural Resources, 212 Mich App 144, 153; 536 NW2d 860 (1995). Ins Co of North America v Southeastern Electric Co Inc, 405 Mich 554, 557; 275 NW2d 255 (1979). Miller-Davis (On Remand), 296 Mich App at 60-61. Id. at 61, citing Employers Mut Cas Co v Petroleum Equip, Inc, 190 Mich App 57, 63; 475 NW2d 418 (1991). Ins Co of North America, 405 Mich at 557.
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McCormack, J. In this case we consider the proper test for applying the United States Supreme Court’s decision in Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). In People v Lester, 232 Mich App 262; 591 NW 2d 267 (1998), the Court of Appeals adopted a four-factor test that added a requirement of defendant diligence to the traditional Brady test. Neither the Supreme Court of the United States nor this Court has endorsed this element. We hold that a diligence requirement is not supported by Brady or its progeny. Thus, we overrule Lester and reaffirm the traditional three-factor Brady test. Because the defendant cannot establish that the suppressed evidence was material, however, his Brady claim nevertheless fails. Accordingly, we affirm the result reached by the Court of Appeals. I. FACTS AND PROCEDURAL BACKGROUND The defendant’s convictions for felony murder, MCL 750.316(l)(b), and possession of a firearm during the commission of a felony, MCL 750.227b, arose out of the shooting death of Kevin Harris in Pontiac, Michigan, on June 29, 2008. Harris was a cocaine dealer, who often used Jared Chambers as a middleman to connect with buyers. Chambers occasionally contacted Harris through Harris’s girlfriend, Heather Holloway. On June 29, 2008, Chambers arranged a transaction between the defendant and Harris. The defendant and Chambers, together with several others, met Harris on a side street in Pontiac. Harris pulled up behind the defendant’s car. Holloway was in Harris’s passenger seat. As both Chambers and the defendant approached Harris’ car, shots were fired at Harris, and he was struck in the head. The Pontiac Police Department conducted an investigation and interviewed Holloway on June 29 and July 2, 2008, and Chambers on June 30, 2008. All of these interviews were video recorded. Holloway also produced two written statements, one after each interview, and Detective Steven Wittebort summarized the interviews in an incident report. Holloway’s written statements and the police report summarizing them were provided to defense counsel before trial, but the video recordings were not. Holloway was more forthcoming in her second interview than in her first. At her first interview, Holloway told the police that two unknown men walked up to the car and shot Harris. During her second interview, which took place after Harris died on June 30, 2008, Holloway said that Harris had been shot as part of a drug deal. Although Holloway identified the defendant in a photo array, neither of Holloway’s written statements mentioned Chambers’s presence. According to Wittebort’s report, Holloway said that she did not get a good look at the shooter but that she could identify him. The report also revealed that she confidently selected the defendant’s photo from an array. The defendant never denied that he was present at the scene of the shooting, and most of the facts were likewise not in dispute. The sole question at trial concerned the identity of the shooter. Only the defendant, Holloway, and Chambers witnessed the shooting and, unsurprisingly, they did not agree about what happened: the defendant identified Chambers as the shooter while Holloway and Chambers identified the defendant. There was no physical evidence to tie either the defendant or Chambers to the shooting. The defense theory was that Chambers shot Harris, and that Holloway identified the defendant as the shooter out of fear of Chambers. On the last day of trial, the prosecution called Wittebort as its final witness. When questioned, Wittebort was surprised that Holloway’s second written statement did not confirm that she had mentioned Chambers and was confident that the video recordings would verify his recollection. He was also surprised to learn that the recordings had not been provided to the defendant. On March 11, 2010, the defendant was convicted of felony murder and felony-firearm. On April 13, 2010, defense counsel filed a motion for a new trial and requested a copy of the interview recordings. Later, counsel amended the motion to add claims of ineffective assistance of counsel and prosecutorial misconduct regarding the failure to provide the recorded statements. There was no dispute that the defendant never had the recordings. The trial court conducted two evidentiary hearings on the motion. On February 29, 2012, Wittebort testified that the police generally let the prosecution know when recordings are available, but the regular practice was to provide them only “if there’s an admission or something of that nature from the person of interest or defendant in that matter.” On March 8, 2012, the trial court granted the defendant’s motion for a new trial, concluding that his due process rights were violated pursuant to Brady because the suppressed videotaped recordings undermined confidence in the outcome of the trial. The Court of Appeals reversed the trial court. People v Chenault, unpublished opinion per curiam of the Court of Appeals, issued November 27, 2012 (Docket Nos. 309384 and 310456). The Court of Appeals analyzed the Brady claim using the four-factor test articulated in Lester. The Court held that trial counsel had not exercised due diligence, and that the suppressed evidence was neither favorable nor material. It also held that the defendant was not denied the effective assistance of counsel because there was no prejudice. On June 5, 2013, this Court granted leave to appeal, directing the parties to address: (1) whether the Court of Appeals’ decision in Lester correctly articulates what a defendant must show to establish a Brady violation; (2) whether the Court of Appeals erred when it reversed the trial court’s grant of a new trial, which was premised on the prosecution’s violation of the rule from Brady, and (3) whether trial counsel rendered ineffective assistance of counsel under Strickland for failing to exercise reasonable diligence after learning of the existence of the videotaped interviews. [People v Chenault, 494 Mich 862 (2013) (citations omitted).] II. LEGAL BACKGROUND The Supreme Court of the United States held in Brady that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 US at 87. In identifying the essential components of a Brady violation, the Supreme Court has articulated a three-factor test: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. [Strickler v Greene, 527 US 263, 281-282; 119 S Ct 1936; 144 L Ed 2d 286 (1999).] Stated differently, the components of a “true Brady violation,” are that: (1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) that is material. Id. The contours of these three factors are fairly settled. The government is held responsible for evidence within its control, even evidence unknown to the prosecution, Kyles v Whitley, 514 US 419, 437; 115 S Ct 1555; 131 L Ed 2d 490 (1995), without regard to the prosecution’s good or bad faith, United States v Agurs, 427 US 97, 110; 96 S Ct 2392; 49 L Ed 2d 342 (1976) (“If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.”). Evidence is favorable to the defense when it is either exculpatory or impeaching. Giglio v United States, 405 US 150, 154; 92 S Ct 763; 31 L Ed 2d 104 (1972) (“When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule [of Brady].”), quoting Napue v Illinois, 360 US 264, 269; 79 S Ct 1173; 3 L Ed 2d 1217 (1959). To establish materiality, a defendant must show that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v Bagley, 473 US 667, 682; 105 SC 3375; 87 L Ed 2d 481 (1985). This standard “does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.. . .” Kyles, 514 US at 434. The question is whether, in the absence of the suppressed evi dence, the defendant “received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Id. In assessing the materiality of the evidence, courts are to consider the suppressed evidence collectively, rather than piecemeal. Id. at 436. In contrast to the three-factor Brady test articulated by the United States Supreme Court, our Court of Appeals adopted a four-factor Brady test in 1998: In order to establish a Brady violation, a defendant must prove: (1) that the state possessed evidence favorable to the defendant; (2) that he did not possess the evidence nor could he have obtained it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. [Lester, 232 Mich App at 281, citing United States v Meros, 866 F 2d 1304, 1308 (CA 11, 1989).] The inclusion of the second factor is the only difference between the Lester test and the test articulated in Strickler. Although Lester did not involve a question of a defendant’s diligence, the Court of Appeals relied on authority from the United States Court of Appeals for the Eleventh Circuit for this additional requirement, now widely referred to as a “due diligence” or “reasonable diligence” factor. This test has been applied by our Court of Appeals since Lester. III. BRADY DISCLOSURES A. PEOPLE v LESTER AND THE ADDITION OF A DILIGENCE REQUIREMENT This is the first occasion on which this Court has examined the merits of the diligence requirement. Some understanding of its doctrinal history is useful. As noted, the Court of Appeals borrowed the four-factor test from the Eleventh Circuit’s opinion in Meros, 866 F 2d at 1308, which in turn cited another Eleventh Circuit case, United States v Valera, 845 F 2d 923, 927-928 (CA 11, 1988). In Valera, the Eleventh Circuit relied on two cases from the Fifth Circuit, United States v Cravero, 545 F2d 406, 420 (CA 5, 1976), and United States v Prior, 546 F2d 1254, 1259 (CA 5, 1977). Both of these Fifth Circuit cases in turn relied on authority from other circuits. None of these cases, however, provides a sufficient explanation for adding a diligence requirement to the Supreme Court’s three-factor Brady test and are consequently of little value to us. We disagree with the prosecution’s suggestion that the diligence requirement is consistent with or implied by United States Supreme Court precedent. Nor do we conclude that a diligence requirement is consistent with the Brady doctrine generally. We believe that the concerns that a diligence requirement might address are already confronted in the context of Brady’s suppression requirement as well as in the Sixth Amendment’s guarantee of the effective assistance of counsel. For these reasons, we reject the addition of a diligence requirement to the Brady test and we overrule Lester. We are not persuaded by the prosecution’s reliance on Agurs and Kyles for the proposition that the diligence requirement is merely a clarification of existing Supreme Court precedent. The prosecution argues that the phrase “unknown to the defense,” as used in these two cases, suggests that the Supreme Court would affirm the addition of a diligence requirement to the Brady analysis. Specifically, the argument goes, the phrase “unknown to the defense” implies that Brady places some sort of burden onto the defense to discover Brady information when possible. We do not share the prosecution’s understanding of the meaning of this phrase in either case. In Agurs, the Supreme Court identified three different contexts in which Brady applies, stating that “[e]ach involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.” Agurs, 427 US at 103. The phrase is best understood as a general description of what constitutes Brady evidence, instead of the imposition of a new hurdle for defendants. We see no additional meaning to the phrase given its context. The Kyles Court held that “showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation without more.” Kyles, 514 US at 437. The phrase is used in a larger discussion of the materiality requirement and the prosecution’s duty to gauge the likely effect of potential Brady evidence: although the mere showing that the prosecution knew of evidence that was unknown to the defense does not amount to a Brady showing by itself, Brady imposes on the prosecution “a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Id. Read in context, this language is meant to define the prosecution’s duty both to become aware of evidence in the government’s possession and to weigh the materiality of evidence. We believe that if the Supreme Court wanted to articulate a diligence requirement, it would do so more directly. It has not. Moreover, we do not believe that the goals of Brady counsel in favor of adopting a diligence requirement. The Supreme Court has consistently stated that, when confronted with potential Brady evidence, the prosecution must always err on the side of disclosure. Kyles, 514 US at 439; Agurs, 427 US at 108. Just recently the Supreme Court underscored this obligation: Our decisions lend no support to the notion that defendants must scavenge for hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed. As we observed in Strickler, defense counsel has no “procedural obligation to assert constitutional error on the basis of mere suspicion that some prosecutorial misstep may have occurred.” ... The State here nevertheless urges, in effect, that “the prosecution can lie and conceal and the prisoner still has the burden to . . . discover the evidence,” so long as the “potential existence” of a prosecutorial misconduct claim might have been detected. A rule thus declaring “prosecutor may hide, defendant must seek,” is not tenable in a system constitutionally bound to accord defendants due process .... We have several times underscored the “special role played by the American prosecutor in the search for truth in criminal trials.” Courts, litigants, and juries properly anticipate that “obligations [to refrain from improper methods to secure a conviction] . . . plainly restfing] upon the prosecuting attorney, will be faithfully observed.” Prosecutors’ dishonest conduct or unwarranted concealment should attract no judicial approbation.[ ] In fact, we conclude that a diligence rule of the sort adopted by the Court of Appeals in Lester is contrary to Brady, i.e., a rule requiring a defendant to show that counsel performed an adequate investigation in discovering the alleged Brady material. The Brady rule is aimed at defining an important prosecutorial duty; it is not a tool to ensure competent defense counsel. Adding a diligence requirement to this rule undermines the fairness that the rule is designed to protect. However, as we previously explained, evidence that the defense knew of favorable evidence, will reduce the likelihood that the defendant can establish that the evidence was suppressed for purposes of a Brady claim. We decline to adopt the four-factor Lester test, as we believe it is not doctrinally supported and undermines the purpose of Brady. We hold that the controlling test is that articulated by the Supreme Court in Strickler, no less and no more: (1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) viewed in its totality, is material. B. APPLICATION OF BRADY TO THIS CASE We now apply the controlling Brady test to the defendant’s claim. As an initial matter, we note that the prosecution has conceded that the evidence in question was suppressed. That leaves two questions: whether the suppressed evidence was favorable to the defendant, either as exculpatory or impeaching evidence, and whether it was material. In contrast to the question of materiality, the favorability of evidence is a simple threshold question that need not delay us long. Only three people witnessed the shooting: Holloway, Chambers, and the defendant. Other than the testimony of Holloway and Chambers, there was no other evidence at trial that identified the defendant as the shooter. Because the videotaped statements could have impeached Holloway and Chambers as well as undermined the strength of Holloway’s identification, the evidence was favorable to the defense. We are not convinced, however, that the suppressed evidence was material. “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 US at 434. We conclude that, even in the absence of the suppressed evidence, the defendant received a trial that resulted in a verdict worthy of confidence, because the cumulative effect of the evidence was not material. We disagree with the defendant that Wittebort’s promises of leniency to both Holloway and Chambers were material. While the detectives assured both witnesses that they would not be investigated or charged for drug crimes, these promises of leniency were not conditioned on any behavior on the part of the witnesses. Indeed, Chambers decided not to make any written statement even after such promises were made, and, likewise, any alleged promises of leniency occurred after Chambers implicated himself in the drug activity. For her part, Holloway also admitted that she lied in her first interview, promises of leniency notwithstanding, and in her second interview, the alleged promises were made after she disclosed the drug activity. We are similarly unconvinced that the evidence would have undermined Holloway’s identification of the defendant in a material way. While there were minor discrepancies between the characterization of Holloway’s identification as expressed in the disclosed material and at trial as contrasted with her recorded identification, she was able to quickly identify the defendant as the shooter in her second interview. Although the specific strong language that Wittebort attributed to Holloway as she identified the defendant is not supported by the recording, Holloway did identify the defendant with confidence. Holloway’s honest qualifications about her ability to view the shooter do not undermine the overall strength of her identification. Finally, we disagree with the defendant that the suppressed evidence supports his trial theory that Chambers was the shooter, and that Holloway only identified the defendant as the shooter out of fear of Chambers. Although Holloway was not forthright in her first statement about Chambers’s involvement, in her second interview she expressed confidence that Chambers must have been involved. If Holloway were frightened of Chambers to the extent that she would implicate an innocent third party, she would not have engaged in a discussion with the police about Chambers’s own culpability. The suppressed evidence did not contain information that leads us to conclude that defense counsel would have asserted the defense that Holloway misidentified the defendant, rather than the cover-up theory that defense counsel pursued at trial. Furthermore, another witness placed the defendant on the side of Harris’s car where the shooter indisputably stood. We therefore conclude that, even in the absence of the suppressed evidence, the defendant received a trial that resulted in a verdict worthy of confidence. The defendant’s Brady claim must fail because the suppressed evidence was not material to his guilt. IV INEFFECTIVE ASSISTANCE OF COUNSEL The defendant also raises a claim that trial counsel was ineffective for failing to investigate and acquire the video recordings during trial. Whether a defendant received ineffective assistance of counsel presents a mixed question of fact and law. People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011). A trial court’s factual findings are reviewed for clear error; questions of law are reviewed de novo. Id. We have determined that the defendant cannot establish a Brady violation because the suppressed evidence was not, in sum, material. As Brady materiality is assessed under the same “reasonable probability” standard that is used to assess prejudice under Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 LEd2d 674 (1984), we similarly conclude that the defendant cannot establish prejudice in order to prevail on his ineffective assistance of counsel claim. V CONCLUSION We conclude that Brady does not support the adoption of a diligence requirement and we therefore over rule Lester. In order to establish a Brady violation, a defendant need only demonstrate that the government suppressed evidence that is both favorable to the defendant and material. Because the defendant cannot establish that the suppressed evidence in this case was material, he cannot prevail on either his Brady claim or his claim of ineffective assistance of counsel. Therefore, we affirm the result reached by the Court of Appeals. Young, C.J., and Cavanagh, Markman, Kelly, Zahra, and Viviano, JJ., concurred with McCORMACK, J. Three others were present at the scene, but did not provide any evidence supporting either theory. Two of them were never questioned by police. The third did not see who shot Harris but testified that immediately after the shot was fired, he saw the defendant standing on the driver’s side of Harris’s car. The prosecution concedes that the Court of Appeals was mistaken in stating otherwise. In fact, the defendant’s first counsel submitted an affidavit stating that he had not received the recorded statements. Wittebort also testified that he had never heard of the phrase “Brady material.” See Cravero, 545 F2d at 420 n 46, citing Maglaya v Buchkoe, 515 F 2d 265, 268 (CA 6, 1975), and United States v Ruggiero, 472 F2d 599, 604 (CA 2, 1973); Prior, 546 F2d at 1259, citing Williams v United States, 503 F2d 995 (CA 2, 1974), United States v Purin, 486 F2d 1363 (CA 2, 1973), Wallace v Hocker, 441 F2d 219 (CA 9, 1971), and United States v Brawer, 367 F Supp 156 (SD NY, 1973). None of these cases articulated a diligence prong of the sort that the Court of Appeals applied in this case. In each of these cases, the factual predicate was different in an important way because the defendant had actual knowledge of the evidence in question. In other words, the evidence was not “suppressed.” In particular, Ruggiero explicitly (and, in our view, appropriately) addressed diligence under the suppression prong of Brady, finding there was no suppression when the government provided the requested evidence to the trial court for an in camera inspection and ruling. Ruggiero, 472 F2d at 604. Bagley retreated from the different materiality standards articulated in Agurs. Bagley, 473 US at 682. Thus, any reliance on the Agurs language as an articulation of existing Supreme Court precedent is undermined. Banks v Dretke, 540 US 668, 695-696; 124 S Ct 1256; 157 L Ed 2d 1166 (2004) (citations omitted). In reliance on this language, the Sixth Circuit recently “decline[d] to adopt the due diligence rule that the government proposes based on earlier, erroneous cases.” United States v Tavera, 719 F 3d 705, 712 (CA 6, 2013). Failures on the part of defense counsel to make use of known and available evidence can instead be evaluated under the Sixth Amendment’s guarantee of effective assistance of counsel. To he sure, there is a relationship between Brady claims and ineffective assistance of counsel claims: when the government complies with its obligation to provide favorable and material evidence, it becomes the defendant’s burden to then make use of that evidence. If defense counsel’s failure to make use of the evidence is not strategic and prejudice results, the defendant will surely bring an ineffective assistance of counsel claim. As noted, the defendant’s first counsel never received the recorded statements. Additionally, all three assistant prosecutors never received the recorded statements, as evidenced by their affidavits submitted in the tried court. At the second evidentiary hearing, the prosecution stated, “Certainly it was not disclosed — it was not turned over to them and the police had it, so truthfully, my understanding of the case law ... it really doesn’t matter whether it was intentional or inadvertent, the question is if it wasn’t disclosed and is it exculpatory, would it affect the trial. ...” The prosecution also stated specifically that the evidence was suppressed: “Well, I would say prong three [of Brady] is satisfied. The prosecutor suppressed — well, we did not give out the evidence but we don’t agree it’s favorable....” At no point before the trial court or the Court of Appeals did the prosecution argue otherwise. The prosecution argued that the evidence was not suppressed for the first time at oral argument before this Court, and we decline to address this argument. That the existence of the videotapes was discovered before the end of trial does not change our view because the prosecution waived the argument that the midtrial disclosure and defense counsel’s subsequent actions affected the defendant’s ability to show that he was prejudiced for purposes of his Brady claim. Although a defense counsel’s failure to ask for a continuance may be relevant in a case where defense counsel has actual knowledge of the suppressed evidence midtrial, see, e.g., State v Spivey, 102 NC App 640, 646; 404 SE2d 23 (1991), we decline to address this issue in light of the prosecution’s waiver. Specifically, in her first interview, Holloway was asked if she saw the shooter’s face “pretty good.” Holloway responded, “Not that good, I could, maybe if I seen him you know I might be able to say it was him.” In her second interview, Holloway stated: “[I]f I seen him..., I could be like that’s that guy, I know it.” After picking defendant in the photo array she stated: “This guy right here. This is him right here.” Detective Wittebort told her to circle it, and she stated: “I think this is him, out of all these guys that looks the most.” After Holloway initialed the photo, she again stated: “I know that’s him.” Moreover, contrary to the defendant’s argument, there is nothing unduly suggestive regarding the photo lineup. Compare Bagley, 473 US at 682 (stating that to establish materiality, a defendant must show that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome”), with Strickland, 466 US at 694 (stating that to establish prejudice, a defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome”).
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CAVANAGH, J. In this case, at issue is the definition of “sport shooting range” under MCL 691.1541(d) of the sport shooting range act (SSRA), MCL 691.1541 et seq. Section 2a(2) of the act, MCL 691.1542a(2), permits certain sport shooting ranges to, among other things, expand opportunities for public participation, even if the range is not in compliance with a local ordinance. We hold that, for MCL 691.1542a(2) to apply to a shooting range, the shooting range must be a “sport shooting range” as defined by MCL 691.1541(d) that also existed as a “sport shooting range” as of the effective date ofMCL 691.1542a. Further, a “sport shooting range” under MCL 691.1541(d) must operate in compliance with generally accepted operation practices to be protected under the SSBA. See MCL 691.15471(a). The Court of Appeals’ interpretation of MCL 691.1541(d) erroneously injected a commercial purpose analysis into the determination whether a shooting range was designed and operated as a sport shooting range. We reverse the judgment of the Court of Appeals in Addison Twp v Barnhart, unpublished opinion per curiam of the Court of Appeals, issued March 13, 2008 (Docket No. 272942) (Barnhart I), and vacate the judgment of the Court of Appeals in Addison Twp v Barnhart, unpublished opinion per curiam of the Court of Appeals, issued April 10, 2012 (Docket No. 301294) (Barnhart 77). Additionally, considering the record evidence, we hold that defendant’s shooting range is entitled to protection under MCL 691.1542a(2), and we remand to the district court for entry of an order dismissing the case. I. FACTUAL AND PROCEDURAL HISTORY This dispute arose out of defendant’s operation of a shooting range on his property, allegedly in violation of a local zoning ordinance. In 1993, Addison Township (the Township) approved defendant’s request to build a shooting range on his 80-acre property after concerns about defendant’s construction of the range were brought to the Township’s attention at a public township meeting. Andrew Koski, the Township supervisor, testified that permission had been granted to defendant to build the shooting range because it was agreed that only defendant and his family would use the shooting range. Defendant contends that, during 1993 and 1994, he used the range for competition and other recreational shooting involving family and friends, and that one individual paid him for a class. Defendant admits that, in the following years, he began teaching firearms lessons. Eventually, in 2005, the Township issued defendant a misdemeanor citation for operating the shooting range without a zoning compliance permit. The case proceeded to trial, and, after the Township presented its case, the district court granted defendant’s motion for a directed verdict dismissing the case. The district court ruled that defendant’s activities were protected under MCL 691.1542a(2) because it was undisputed that defendant’s shooting range was in existence before the effective date of MCL 691.1542a, and defendant was entitled to expand or increase the use of the shooting range for public participation under MCL 691.1542a(2)(c). The circuit court affirmed. The Court of Appeals reversed and remanded the case to the district court for reconsideration in light of the panel’s interpretation of “sport shooting range,” as defined under MCL 691.1541(d), and to determine whether defendant was in compliance with “generally accepted operation practices” under MCL 691.1541(a), as required by MCL 691.1542a(2). Barnhart I, supra. On remand, the Township moved to enforce the ordinance, and defendant moved for dismissal, arguing that “[s]ince the day his range was opened, [defendant, his family and his invited guests have used the range and continue to do so.” The district court granted defendant’s motion, concluding that the range was protected under the SSRA because defendant operated a sport shooting range. The district court relied on the parties’ stipulation that defendant used his property for business and recreational uses. After an evidentiary hearing on the matter, the district court also concluded that defendant was in compliance with generally accepted operation practices. On appeal, the circuit court reversed and remanded the case. On remand, the dis trict court again ruled in favor of defendant, and, on appeal, the circuit court reversed and applied Barnhart I’s interpretation of “sport shooting range” to conclude that defendant’s activities were not protected under MCL 691.1542a. The circuit court also concluded that, as a result, whether defendant was in compliance with generally accepted operation practices did not need to be decided. Defendant appealed, and the Court of Appeals affirmed on the basis that the district court did not follow the law of the case when applying Barnhart I’s interpretation of “sport shooting range.” Barnhart II, supra. We heard oral argument to help us decide whether we should grant defendant’s application for leave to appeal or take other action. Specifically, we asked the parties to address “whether the Court of Appeals erred in [Barnhart I] when it held that, ‘to the extent that there was testimony to suggest that defendant’s operation of a shooting range was for business or commercial purposes, MCL 691.1542a(2)(c) does not provide freedom from compliance with local zoning controls.’ ” Addison Twp v Barnhart, 493 Mich 860 (2012). II. ANALYSIS A. STANDARD OF REVIEW The interpretation of the SSRA presents a question of law that we review de novo. Sands Appliance Servs, Inc v Wilson, 463 Mich 231, 238; 615 NW2d 241 (2000). See, also, Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). B. THE SPORT SHOOTING RANGE ACT The SSRA was enacted in 1989 as a way to address the tension between shooting range owners and their neighbors, which became heightened as a result of urban sprawl. Ray Twp v B & BS Gun Club, 226 Mich App 724, 727; 575 NW2d 63 (1997). Originally, the SSRA provided various immunities to shooting range owners. Id., citing MCL 691.1542. In 1994, the Legislature amended the SSRA to expand the protections afforded to shooting ranges. MCL 691.1542a. Section 2a provides two avenues of protection against local ordinances: MCL 691.1542a(l) and MCL 691.1542a(2). At issue in this case is the protection against local ordinances established for shooting ranges under MCL 691.1542a(2), which states in relevant part: A sport shooting range that is in existence as of the effective date of this section and operates in compliance with generally accepted operation practices, even if not in compliance with an ordinance of a local unit of government, shall be permitted to do all of the following within its preexisting geographic boundaries if in compliance with generally accepted operation practices: (c) Do anything authorized under generally accepted operation practices, including, but not limited to: (i) Expand or increase its membership or opportunities for public participation. (ii) Expand or increase events and activities. [Emphasis added.] Interpreting these provisions, for a shooting range to fall within the purview of subsection (2) of the SSRA amendment, it must be a “sport shooting range,” as defined by MCL 691.1541(d), that also existed as of the effective date of the SSRA amendment, July 5, 1994. Additionally, the sport shooting range must operate in compliance with generally accepted operation practices. MCL 691.1542a(2). See Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996) (“First and foremost, we must give effect to the Legislature’s intent” when interpreting a statute, and if the language is clear and unambiguous, “the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted”). In this case, instead of addressing the district court’s conclusion that defendant’s activities on the shooting range were protected under MCL 691.1542a(2)(c), the Court of Appeals in Barnhart I shifted the focus of the case, interpreting the definition of “sport shooting range” under MCL 691.1541(d). Under MCL 691.1541(d), “sport shooting range” or “range” means “an area designed and operated for the use of archery, rifles, shotguns, pistols, silhouettes, skeet, trap, black powder, or any other similar sport shooting.” “[W]hen a statute specifically defines a given term, that definition alone controls.” Tryc, 451 Mich at 136. Accordingly, we note that, in order for a shooting range to be a sport shooting range, it must have been “designed and operated” for the use of the firearm-related activities that the Legislature referred to in MCL 691.1541(d) of the SSRA. Thus, it is clear that the focus of the Legislature when defining the term “sport shooting range” was on the shooting range’s design and operation, which does not turn on individual shooters’ intentions for using the shooting range. Further, because MCL 691.1541(d) defines a “sport shooting range” as “an area designed and operated for the use of’ various sport shooting activities, a shooting range owner’s commercial purpose for operating a shooting range is irrelevant. (Emphasis added.) If a shooting range owner receives or did receive a fee or profit, the shooting range may nevertheless have been designed and operated as a “sport shooting range.” Stated differently, a shooting range may meet the statutory definition of a “sport shooting range” under MCL 691.1541(d) despite the fact that the owner of the shooting range profits from operating the shooting range. It is of no consequence in determining the nature of shooting activities for which the range is designed and operated that the shooting range owner profits from its operation. Thus, the Court of Appeals erred by concluding that defendant’s pecuniary purpose was relevant, let alone dispositive, to the determination whether his shooting range was a sport shooting range as defined by MCL 691.1541(d). C. APPLICATION We must now consider whether defendant’s shooting range is entitled to protection under MCL 691.1542a(2). There is no dispute that defendant’s shooting range existed before the Legislature enacted MCL 691.1542a. However, as previously stated, in order for a shooting range to be protected under MCL 691.1542a(2), it must be a sport shooting range, as defined under MCL 691.1541(d), that also existed as a sport shooting range as of the July 5, 1994, effective date of MCL 691.1542a. Further, the “sport shooting range” must operate in compliance with the generally accepted operation practices for such ranges. We find defendant’s range satisfies these criteria. On remand, the parties entered into a stipulated order, stating that “the defendant’s property was used for recreational and business shooting range purposes, prior to the [SSRA]. Recreational shooting uses started before the business use but both came before the act.” (Capitalization altered.) As the district court duly recognized, a shooting range designed and operated for the use of recreational shooting activities plainly falls within the scope of sport shooting ranges contemplated by MCL 691.1541(d). Accordingly, we hold that defendant’s shooting range existed as a sport shooting range before the effective date of MCL 691.1542a. See Dana Corp v Employment Security Comm, 371 Mich 107, 110; 123 NW2d 277 (1963) (“A party must be able to rest secure on the premise that the stipulated facts and stipulated ultimate conclusionary facts as accepted will be those upon which adjudication is based.”); People v Metamora Water Serv, Inc, 276 Mich App 376, 385; 741 NW2d 61 (2007) (“The parties may enter into a stipulation to avoid delay, trouble, and expense. When the parties stipulate a set of facts, the stipulated facts are binding on the court, but stipulations of law are not binding.”). The district court, relying solely on the stipulated order, concluded that defendant’s shooting range was entitled to protection under MCL 691.1542a(2), implicitly concluding that defendant’s shooting range continued to meet the statutory definition of “sport shooting range” when the Township issued defendant a citation in 2005. While the district court may have misinterpreted the scope of the stipulation, we nevertheless agree with its conclusion. We simply do not believe that there is enough evidence indicating that defendant’s shooting range stopped being operated within the framework of MCL 691.1541(d) such that defendant’s range should be deprived of protection under MCL 691.1542a(2). For example, the Township appears to have never contested that defendant continued to make his shooting range available to his family and friends to engage in sport shooting. Also, the record shows that defendant has used his range to offer various shooting-related classes, including competitive shooting classes that comprise sport shooting activities contemplated by MCL 691.1541(d). To the extent that any evidence could be construed as defendant facilitating individuals’ use of his shooting range in a manner that does not involve sport shooting, that evidence is insufficient to conclude that defendant’s shooting range ceased to be designed and operated for sport shooting purposes. Furthermore, we recognize that the issue whether defendant’s shooting range was in compliance with the generally accepted operation practices has not received appellate review. However, we find no reason to hold that the district court erred by concluding that defendant’s range was in compliance with such practices. Like the district court, we find persuasive Acting Lt. Andrew Turner’s affidavit and letter stating that defendant was in compliance with the generally accepted operation practices. Also, the Township appears to have merely asserted that because defendant testified that he failed to meet several technical, and some discretionary, requirements in the National Rifle Association’s Manual (the Manual), defendant was not operating his shooting range in compliance with generally accepted operation practices. However, the district court considered defendant’s testimony and nonetheless found in favor of defendant. The court relied heavily on the Department of Natural Resources’ memorandum to the Natural Resources Commission (the body charged with adopting generally accepted operation practices under MCL 691.1541(a)), which stated, in part, that the Manual was “designed to provide guidance and direction to a broad variety of the sport/recreational shooting community,” and the “information contained within [the Manual] is advisory and should be considered guidelines rather than absolute requirements . . . .” We agree that this evidence suggests that defendant’s admitted failure to comply with every provision of the Manual does not effectively refute the evidence that defendant’s shooting range was in compliance with the generally accepted operation practices. III. CONCLUSION We hold that in order for MCL 691.1542a(2) to apply to a shooting range, it must (1) be a sport shooting range that also existed as a sport shooting range as of July 5, 1994, and (2) the sport shooting range must operate in compliance with the generally accepted operation practices. The Court of Appeals erred in interpreting MCL 691.1541(d) when it held that a shooting range owner cannot have a commercial purpose in operating a sport shooting range. We reverse the judgment of the Court of Appeals in Barnhart I and vacate the judgment of the Court of Appeals in Barnhart II. After considering the evidence in the record, we hold that defendant’s shooting range is entitled to protection under MCL 691.1542a(2). Accordingly, we remand to the district court for entry of an order dismissing the case. Young, C.J., and Markman, Kelly, Zahra, McCormack, and Viviano, JJ., concurred with Cavanagh, J. Defendant was allegedly operating the shooting range in violation of Addison Township’s zoning code, Ordinance No. 300, § 27.05, which requires a zoning compliance permit before constructing, altering, or repairing any structure and before changing the use of land or the use of any building. The parties do not dispute that defendant would be subject to the ordinance if MCL 691.1542a(2) does not apply to defendant’s shooting range. At trial, Koski testified that around 2004, the Township began receiving complaints regarding defendant’s shooting range and that he was shown defendant’s advertisements for military training and was aware that people other than defendant and his family were using the shooting range. Koski also testified that defendant had indicated that he might “test[] rifles and other firearm[s] for various different companies ....” Sergeant Peter Burkett testified that he and a small group would occasionally use defendant’s range for training purposes, but that he had never paid defendant. Specifically, he testified that the sheriffs department used defendant’s range only about a dozen times between 1999 and 2002. Also, Burkett stated that when he issued defendant the citation, defendant told him that he and "some military friends” were using the shooting range. At this stage in the litigation, pages from defendant’s website were admitted into evidence. The pages advertised defendant’s availability to teach tactical shooting classes “in Michigan or [defendant] can travel to your range.” The pages from the website also show that defendant was offering to teach "Competition Classes” to students at his range in Michigan and at other facilities provided by the students. MCL 691.1541(a) defines “generally accepted operation practices” as those practices adopted by the commission of natural resources that are established by a nationally recognized nonprofit membership organization that provides voluntary firearm safety programs that include training individuals in the safe handling and use of firearms, which practices are developed with consideration of all information reasonably available regarding the operation of shooting ranges. The generally accepted operation practices shall be reviewed at least every 5 years by the commission of natural resources and revised as the commission considers necessary. The commission shall adopt generally accepted operation practices within 90 days of the effective date of section 2a. Indeed, Koski testified that the shooting range was constructed “[a]bout 1993.” From the parties’ various arguments presented in the lower courts, it is clear that when referring to “business” purposes the parties were stipulating that defendant used his range for commercial profit. For example, at a motion hearing in the circuit court after remand, the Township’s attorney stated that the shooting range was “operating for a commercial purpose,” and defendant’s attorney stated that the parties had stipulated to “a business use, a commercial use if you defined it as money.” Because we hold that defendant’s commercial purpose has no bearing on whether his shooting range was a sport shooting range under MCL 691.1541(d), that aspect of the stipulation is immaterial. Moreover, while we recognize that not every member of this Court finds all the varying forms of legislative history particularly relevant in ascertaining legislative intent, in this particular case, it is still worth noting that our holding is consistent not only with the language of the SSRA, but also with the legislative history of MCL 691.1542a. See, e.g., House Legislative Analysis, SB 788 and SB 789, June 14, 1994 (noting in the section of the analysis outlining arguments for the bill that “[s]hoot ing ranges are often the sites of gun and hunter safety courses and shooting instruction, and law enforcement training”). We also again note that the focus of MCL 691.1541(d) is on how the shooting range was designed and operated. As such, it matters little whether any individuals used or use defendant’s shooting range to engage in activities contemplated under MCL 691.1541(d) for reasons that they themselves may not consider “sport,” such as self-defense training.
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McCORMACK, J. In this case, we decide whether a trial court’s restitution award that is based solely on uncharged conduct may be sustained. We conclude that it cannot. We therefore overrule our decision in People v Gahan, 456 Mich 264; 571 NW2d 503 (1997), to the extent that Gahan held that MCL 780.766(2) “authorizes the sentencing court to order criminal defendants to pay restitution to all victims, even if those specific losses were not the factual predicate for the conviction.” Gahan, 456 Mich at 270. Accordingly, we vacate the portion of the judgment of sentence ordering that the defendant pay $158,180.44 in restitution, and remand to the trial court for entry of an order assessing $63,749.44 in restitution against the defendant. I. FACTS AND PROCEDURAL HISTORY In January 2011, Battle Creek police officers arrested the defendant because they believed him to be responsible for a series of thefts of commercial air conditioning units in the area. Following a trial, a jury found the defendant guilty of larceny over $20,000, malicious destruction of property over $20,000, and inducing a minor to commit a felony. The trial court sentenced the defendant, as a fourth-offense habitual offender, to concurrent terms of 12 to 25 years in prison on each count. The trial court reserved a decision on restitution until after sentencing. Following a hearing, and over defense counsel’s objection to the amount of restitution assessed, the trial court entered an amended judgment of sentence to reflect the imposition of $158,180.44 in restitution against the defendant. Of that total, the defendant was ordered to pay $63,749.44 to the four victims of the offenses of which he was convicted and $94,431 to the victims of uncharged thefts attributed to the defendant by his accomplice. The Court of Appeals vacated the defendant’s conviction for larceny over $20,000, but otherwise affirmed his convictions and sentences. People v McKinley, unpublished opinion per curiam of the Court of Appeals, issued May 16, 2013 (Docket No. 307360). The panel rejected the defendant’s argument that Michigan’s restitution scheme is unconstitutional because it permits trial courts to impose restitution on the basis of facts not proven to the trier of fact beyond a reasonable doubt. Id. at 8. We granted leave to appeal, 495 Mich 897 (2013), limited to the following issues: (1) whether an order of restitution is equivalent to a criminal penalty, and (2) whether Michigan’s statutory restitution scheme is unconstitutional insofar as it permits the trial court to order restitution based on uncharged conduct that was not submitted to a jury or proven beyond a reasonable doubt. See Southern Union Co v United States, 567 US_; 132 S Ct 2344; 183 L Ed 2d 318 (2012); Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000); contra People v Gahan, 456 Mich 264 (1997). II. STANDARD OF REVIEW The proper application of MCL 780.766(2) and other statutes authorizing the assessment of restitution at sentencing is a matter of statutory interpretation, which we review de novo. Hunter v Hunter, 484 Mich 247, 257; 771 NW2d 694 (2009). “The first step when interpreting a statute is to examine its plain language, which provides the most reliable evidence of intent.” Ter Beek v City of Wyoming, 495 Mich 1, 8; 846 NW2d 531 (2014). If the statutory language is unambiguous, no further judicial construction is required or permitted. Id. Questions involving the constitutionality of a statute are also reviewed de novo. Hunter, 484 Mich at 257. III. ANALYSIS The defendant’s challenge to the restitution award is premised on the Sixth Amendment to the United States Constitution, specifically Apprendi and its progeny. Defendant challenges both the amount of the restitution award above $63,749.44 (the amount based on uncharged conduct) and the amount between $20,000 and $63,749.44 (the amount based on convicted conduct above and beyond the amount specifically found by a jury). Only the former argument was preserved by a timely objection. Ultimately, we do not reach either of defendant’s constitutional challenges to the restitution award. As to the former, pursuant to the widely accepted and venerable rule of constitutional avoidance, we conclude that it is necessary to revisit the statutory analysis of MCL 780.766(2) we set forth in Gahan. Ashwander v Tenn Valley Auth, 297 US 288, 347; 56 S Ct 466; 80 L Ed 688 (1936) (Brandéis, J., concurring) (“ [I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.”).* *** We believe that adherence to that rule is particularly appropriate in this case because the statutory analysis in Gahan is so plainly incomplete and the defendant’s constitutional challenge to restitution based on uncharged conduct is a novel one that other courts have not addressed (indeed, have not even been called upon to address).* **** As to the defendant’s challenge to the restitution award based on convicted conduct, we conclude that the issue is not properly before us because the defendant has waived it. The defendant did not raise any question regarding the portion of the restitution award based on convicted conduct in his initial application for leave to appeal in this Court, but instead posited that the entirety of the restitution award based on convicted conduct passed constitutional muster. Only after we granted leave to appeal did the defendant assert that only $20,000 of the restitution award was constitutional under Apprendi. A waiver “extinguished] any error,” People v Carter, 462 Mich 206, 216; 612 NW2d 144 (2000), thereby foreclosing appellate review, id. at 215. A. STATUTORY INTERPRETATION MCL 780.766(2) provides in part that “the [sentencing] court shall order, in addition to or in lieu of any other penalty authorized by law or in addition to any other penalty required by law, that the defendant make full restitution to any victim of the defendant’s course of conduct that gives rise to the conviction or to the victim’s estate.” In Gahan, we discussed the Legislature’s use of the term “course of conduct” and determined that term should be given a broad construction in light of its historical background and prior decisions from the Court of Appeals interpreting a similar statute. Gahan, 456 Mich at 271-272. Notably, however, the Gahan Court devoted no attention to the modifying phrase “that gives rise to the conviction . . . ,” We conclude that the Gahan Court’s reading of MCL 780.766(2) is not sustainable and must be overruled. The plain language of the statute authorizes the assessment of full restitution only for “any victim of the defendant’s course of conduct that gives rise to the conviction ....” The statute does not define “gives rise to,” but a lay dictionary defines the term as “to produce or cause.” Random House Webster’s College Dictionary (2000), p 1139. Only crimes for which a defendant is charged “cause” or “give rise to” the conviction. Thus, the statute ties “the defendant’s course of conduct” to the convicted offenses and requires a causal link between them. It follows directly from this premise that any course of conduct that does not give rise to a conviction may not be relied on as a basis for assessing restitution against a defendant. Stated differently, while conduct for which a defendant is criminally charged and convicted is necessarily part of the “course of conduct that gives rise to the conviction,” the opposite is also true; conduct for which a defendant is not criminally charged and convicted is necessarily not part of a course of conduct that gives rise to the conviction. Similarly, the statute requires that “any victim” be a victim “of” the defendant’s course of conduct giving rise to the conviction, indicating that a victim for whom restitution is assessed need also have a connection to the course of conduct that gives rise to the conviction. Allowing restitution to be assessed for uncharged conduct reads the phrase “that gives rise to the conviction” out of the statute by permitting restitution awards for “any victim of the defendant’s course of conduct” without any qualification. The statute, however, provides an explicit qualification that the Gahan Court did not address. Our conclusion is further reinforced when the language of MCL 780.766(2) is read in pari materia with other provisions in the Crime Victim’s Rights Act, MCL 780.751 et seq. MCL 780.767, for example, sets forth the factors for consideration and the burden of proof in setting the amount of restitution. MCL 780.767(1) provides that “[i]n determining the amount of restitution to order under [MCL 780.766], the court shall consider the amount of the loss sustained by any victim as a result of the offense.” (Emphasis added.) Similarly, MCL 780.767(4) provides that “[t]he burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the prosecuting attorney.” (Emphasis added.) “[T]he offense” in MCL 780.767 can only refer to the offense of which the defendant was convicted, because it is that “offense” that makes him subject to being ordered to pay restitution in the first place. Thus, these provisions further reinforce our conclusion that MCL 780.766(2) requires a direct, causal relationship between the conduct underlying the convicted offense and the amount of restitution to be awarded. See, e.g., Paroline v United States, 572 US_,_; 134 S Ct 1710, 1720; 188 L Ed 2d 714 (2014) (“The words ‘as a result of plainly suggest causation.”). Because MCL 780.766(2) does not authorize the assessment of restitution based on uncharged conduct, the trial court erred by ordering the defendant to pay $94,431 in restitution to the victims of air conditioner thefts attributed to the defendant by his accomplice but not charged by the prosecution. We therefore vacate that portion of the defendant’s judgment of sentence. As this holding makes it unnecessary to address the question whether restitution based on uncharged conduct is unconstitutional under the Sixth Amendment and Apprendi and its progeny, we decline to reach that question. B. STARE DECISIS Contrary to the dissent’s assertion, we do not “lightly cast aside” our decision in Gahan. Rather, in determining whether to overrule our decision in Gahan, we are mindful of the factors for overruling our prior decisions set forth in Robinson v Detroit, 462 Mich 439, 463-468; 613 NW2d 307 (2000). Stare decisis is “generally ‘the preferred course’ ” because it “ ‘contributes to the actual and perceived integrity of the judicial process.’ ” Id. at 463, quoting Hohn v United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998). We consider whether Gahan was wrongly decided, whether it defies practical workability, whether reliance interests would work an undue hardship, and whether changes in the law or the facts no longer justify the questioned decision. Id. at 464. We have little difficulty concluding that Gahan was wrongly decided. For reasons previously explained, we believe that the Gahan Court’s analysis of MCL 780.766(2) is incomplete because it failed to consider the clause “that gives rise to the conviction.” That significant qualification to the phrase “course of conduct” renders untenable the Gahan Court’s conclusion that the term “course of conduct” should be given a reading so broad that it includes uncharged conduct. This factor weighs in favor of overruling Gahan. We see no basis for concluding that Gahan defies practical workability. Trial courts hold hearings and make restitution determinations every day under the Gahan Court’s reading of the statute, and we see nothing to indicate that Gahan is difficult to apply. This factor weighs in favor of retaining Gahan. Regarding reliance, we inquire “whether the previous decision has become so embedded, so accepted, so fundamental, to everyone’s expectations that to change it would produce not just readjustments, but practical real-world dislocations.” Robinson, 462 Mich at 466. We conclude that the reliance interests of crime victims are not implicated here because “to have reliance the knowledge must be of the sort that causes a person or entity to attempt to conform his conduct to a certain norm before the triggering event.” Id. at 467. Under MCL 780.766(2), the “triggering event” is the defendant’s commission of a crime against a victim for which the defendant is not charged; before that act occurs, a person would have no reason to believe he or she would be victimized and adjust his or her conduct accordingly, so by definition there can be no reliance on the Gahan rule that he or she may recover restitution for his or her losses as a result of that crime. Further, when dealing with an issue of statutory interpretation, we have said that “it is to the words of the statute itself that a citizen first looks for guidance in directing his actions.” Id. Accordingly, when a court misconstrues or misreads a statute, “it is that court itself that has disrupted the reliance interest. When that happens, a subsequent court, rather than holding to the distorted reading because of the doctrine of stare decisis, should overrule the earlier court’s misconstruction.” Id. Because Gahan interpreted only one phrase in MCL 780.766(2), and in doing so did not address another phrase in the statute, we conclude that reliance on its holding is not justified. Because overruling Gahan will not result in practical, real-world dislocations, this factor weighs in favor of its overruling. Finally, we are aware of no intervening changes in the law or the facts involving restitution awards that would either support or undermine our statutory inter pretation analysis in Gahan. Thus, this factor neither supports nor weighs against overruling Gahan. In sum, we conclude that Gahan was wrongly decided and that no reliance interests are upset by its overruling. Stare decisis is a “ ‘principle of policy’ rather than ‘an inexorable command,’ ” and we are not constrained to follow precedent that is badly reasoned. Id. at 464, quoting Hohn, 524 US at 251. Accordingly, we conclude that Gahan should be overruled to the extent that it held that MCL 780.766(2) “authorizes the sentencing court to order criminal defendants to pay restitution to all victims, even if those specific losses were not the factual predicate for the conviction.” Gahan, 456 Mich at 270. IV CONCLUSION We hold that MCL 780.766(2) does not authorize trial courts to impose restitution based solely on uncharged conduct. We overrule our decision in Gahan to the extent that it held to the contrary. Therefore, we vacate the portion of the judgment of sentence imposing $158,180.44 in restitution and remand to the trial court for entry of an order assessing $63,749.44 in restitution against the defendant. Young, C.J., and Markman, Kelly, Zahra, and Viviano, JJ, concurred with MCCORMACK, J. For purposes of this opinion, the phrase “uncharged conduct” refers to criminal conduct that the defendant allegedly engaged in that was not relied on as a basis for any criminal charge and therefore was not proved beyond a reasonable doubt to a trier of fact. The defendant employed a teenage accomplice, whom he rewarded with money and cigarettes, to help him remove the air conditioning units. His accomplice testified against the defendant at trial pursuant to a plea agreement. At the restitution hearing, defense counsel argued that “the current state of the law would require that. . . there would have been have [sic] some proof beyond a reasonable doubt that those other ‘complainants’ if you will, were also those that were victimized by the Defendant.” In other words, counsel argued only that the portion of the restitution award based on the uncharged offenses had to be proven beyond a reasonable doubt. This rule is well established in both United States Supreme Court caselaw and this Court’s precedent. See Ashwander v Tenn Valley Auth, 297 US 288, 347; 56 S Ct 466; 80 L Ed 688 (1936) (Brandéis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”); Slack v McDaniel, 529 US 473, 485; 120 S Ct 1595; 146 L Ed 2d 542 (2000) (quoting Justice Brandeis’s concurring opinion in referring to “[t]he Ashwander rule”); Smith v Curran, 267 Mich 413, 418; 255 NW 276 (1934) (holding that the “constitutionality of an act will not be passed upon where a case may be otherwise decided”). That is, given that we conclude that Michigan’s statutory restitution scheme does not permit the trial court to order restitution based on uncharged conduct, it is unnecessary to decide whether such a scheme would be unconstitutional. Contrary to the dissent’s characterization, there is nothing at all inappropriate as to the approach we have taken in this case, and it is an approach that is consistent with the well-established rule that the “constitutionality of an act will not be passed upon where a case may be otherwise decided!.]” Smith, 267 Mich at 418. Furthermore, the parties in this case were in no way denied an “opportunity to be heard” regarding this issue, as suggested by the dissent. The parties were free to argue that Gahan wrongly held that Michigan’s statutory restitution scheme permits the trial court to order restitution based on uncharged conduct, and defense counsel did at least address this point at oral argument, at which he stated: I think Justice McCormack’s second question is whether there is an alternative way of addressing this and one way would be to limit this Court’s previous decision in People v Gahan. In People v Gahan, this Court construed the statutory language very broadly where a course of conduct could mean anything — it didn’t — it wasn’t limited to just what the jury found. In addition, in his brief filed with the Court, defense counsel specifically asked us to “overrule Gahan.” Finally, the prosecutor also recognized that “[t]his Court, in its order granting leave, pointed the parties at [Gahan] as a potential source of useful precedent.” Therefore, it is clear that the parties themselves recognized that they were accorded an opportunity to be heard regarding our decision in Gahan. Finally, we note that despite the dissent’s criticism of our decision not to reach the constitutional question and its defense of Gahan’s statutory analysis, the dissent does not reach the constitutional question either. And if that constitutional hurdle proves unresolvable to the dissent, one wonders whether that opinion should be a concurrence instead. Notably, and we believe further supporting our decision not to reach the constitutional issue, the apparent reason other courts have not been asked to address the argument that the defendant raises here is because those courts have (seemingly uniformly) construed their restitution statutes as allowing the assessment of restitution based only on convicted conduct. See, e.g., Hughey v United States, 495 US 411, 413; 110 S Ct 1979; 109 L Ed 2d 408 (1990); State v Clapper, 273 Neb 750, 758; 732 NW2d 657 (2007); Commonwealth v McIntyre, 436 Mass 829, 835 n 3; 767 NE2d 578 (2002) (collecting cases applying various standards requiring a causal relationship between the restitution award and the conviction). Accordingly, we are aware of no court that has reached the argument defendant preserved below: whether Apprendi and its progeny bar the assessment of restitution based on uncharged conduct. See also United States v Sharma, 703 F3d 318, 323 (CA 5, 2012) (“The [Mandatory Victim Restitution Act, 18 USC 3663A] limits restitution to the actual loss directly and proximately caused by the defendant’s offense of conviction. An award of restitution cannot compensate a victim for losses caused by conduct not charged in the indictment or specified in a guilty plea, or for losses caused by conduct that falls outside the temporal scope of the acts of conviction.”). Waiver is defined as “the ‘intentional relinquishment or abandonment of a known right.’ ” People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000), quoting People v Carines, 460 Mich 750, 762 n 7; 597 NW2d 130 (1999) (citation and quotation marks omitted). Those prior decisions interpreted MCL 771.3(2), now MCL 771.3(l)(e), which contains identical language to MCL 780.766(2) for all purposes relevant to our analysis. Similarly, other statutes allowing for the assessment of restitution also have identical language for all relevant purposes. See, e.g., MCL 769.1a(2); MCL 780.826(2). The dissent provides an impassioned defense of Gahan and disagrees that the Gahan Court ignored this language, but in fact other than quoting this statutory language as part of its background discussion, the Gahan Court did not discuss it or attempt to interpret it or give independent meaning to it; it limited its statement of the question before it as “whether ‘course of conduct’ should be given a broad or narrow construction.” Gahan, 456 Mich at 271. But “[c]ourts must give effect to every word, phrase, and clause in a statute and avoid an interpretation that renders nugatory or surplusage any part of a statute.” People v Couzens, 480 Mich 240, 249; 747 NW2d 849 (2008). The dissent’s view that the Legislature intended to adopt the unique, common-law meaning of “course of conduct” from People v Gallagher, 55 Mich App 613; 223 NW2d 92 (1974) is unpersuasive. First, as the dissent acknowledges, that rule was not universally followed. See People v Blaney, 139 Mich App 694; 363 NW2d 13 (1984). Second, even in cases purporting to follow Gallagher, its scope was open to interpretation. See People v Seda-Ruiz, 87 Mich App 100, 105; 273 NW2d 602 (1978) (Maher, J., concurring) (“I write separately to state my concern that the record does not reveal that all the bad checks allegedly issued by defendant were made part of the plea agreement. Unless defendant agreed to make restitution for all the checks and the prosecutor agreed not to institute charges on the basis of those checks, defendant may not be required to make restitution for all the checks, but only those listed in the information to which he pled guilty and the information which was nolle prossed as part of the plea agreement. In such a case, of course, the prosecutor would be entitled to bring charges on the basis of the checks which are not part of the plea agreement.”) (emphasis added). We conclude that interpreting the statutory language according to its plain meaning is preferable to concluding that the Legislature selected such language to adopt a standard that was not consistently followed or fully settled. Our reading does not read the phrase “course of conduct” out of the statute, as the dissent asserts. Depending on the nature and circumstances of the offense, a single act of “conduct” may be sufficient to give rise to the offense, or a series of acts — i.e., a “course of conduct” — may be necessary. For example, a defendant may be assessed restitution for a conviction for assault with a deadly weapon for firing a gun at a victim and be required to pay the victim’s resulting medical bills, or a defendant may be assessed restitution for a conviction for armed robbery for firing a gun at a victim and taking the victim’s money and be required to pay the victim’s medical bills and repay the money taken from the victim. The latter example involves a “course of conduct” that gives rise to a conviction, and both the defendant’s assault and his theft could result in a restitution award under our decision today. “[Sltatutes in pari materia are to be taken together in ascertaining the intention of the legislature, and . .. courts will regard all statutes upon the same general subject matter as part of 1 system.” Dearborn Twp Clerk v Jones, 335 Mich 658, 662; 57 NW2d 40 (1953). Because we do not reach the defendant’s constitutional challenge to the restitution award based on Apprendi and its progeny, we do not consider the impact of those cases in our analysis of this factor.
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McCORMACK, J. As this case implicates more than one somewhat complex legal doctrine, it may be useful first to state the practical question we confront in as plain English as possible: Can a defendant whose conviction for felony murder has been reversed on appeal be retried for that charge when he was also acquitted of the only felony that supported it? As detailed below, this case turns on the protection afforded by the Double Jeopardy Clause of the United States Constitution. US Const, Am V This clause protects a criminal defendant from multiple prosecutions and multiple punishments for the same offense. This case also implicates the doctrine of collateral estoppel, which in general imports a final determination from one case into a subsequent case requiring a determination on that same issue. Collateral estoppel and double jeopardy can overlap, and do so here. We conclude that the collateral-estoppel strand of Double Jeopardy Clause jurisprudence prevents the prosecution from re-charging the defendant with felony murder. Because the defendant’s acquittal of the only supporting felony triggers collateral estoppel, the Double Jeopardy Clause precludes a second felony-murder prosecution of the defendant. I. FACTS AND PROCEDURAL BACKGROUND In December 2009, the defendant was convicted by a jury of first-degree felony murder, MCL 750.316(l)(b), second-degree murder, MCL 750.317, assault with intent to commit great bodily harm less than murder, MCL 750.84, carrying a firearm during the commission of a felony, MCL 750.227b, and two counts of unlawful imprisonment, MCL 750.349b. The jury acquitted the defendant of first-degree premeditated murder, MCL 750.316(l)(a), and— importantly — first-degree home invasion, MCL 750.110a(2). Because first-degree home invasion was the only felony that the defendant was charged with that could have supported the conviction for first- degree felony murder, see MCL 750.316(l)(b), the initial jury verdict was, plainly, inconsistent. The Court of Appeals reversed the defendant’s convictions, holding that the trial court had committed error by denying the defendant’s constitutional right to represent himself. People v Wilson, unpublished opinion per curiam of the Court of Appeals, issued May 10, 2011 (Docket No. 296693). The Court of Appeals remanded this case to the trial court for a new trial, and this Court denied the prosecution’s application for leave to appeal. People v Wilson, 490 Mich 861 (2011). On April 6, 2012, the prosecution filed an amended information setting forth the charges on retrial. The defendant was re-charged with each of the charges of which he was initially convicted. The defendant moved to dismiss the first-degree felony-murder charge, arguing that the Double Jeopardy Clause prevented a second prosecution on that charge because he stood acquitted of the only predicate felony, which is one of the elements of felony murder. On July 6, 2012, the trial court granted the defendant’s motion to dismiss, agreeing that a second jury could not reconsider the home-invasion element of felony murder given the preclusive effect of the defendant’s acquittal of home invasion. The Court of Appeals granted the prosecution’s interlocutory application for leave to appeal and reversed the trial court’s order in an unpublished opinion per curiam. The Court of Appeals held that because the jury’s verdict was inconsistent, that inconsistency negated the application of the collateral-estoppel doctrine in the second prosecution, citing United States v Powell, 469 US 57, 68; 105 S Ct 471; 83 L Ed 2d 461 (1984), for the proposition that the jury has the prerogative to return inconsistent verdicts. On May 24, 2013, this Court granted leave to appeal. People v Wilson, 494 Mich 853 (2013). II. LEGAL BACKGROUND A. DOUBLE JEOPARDY The Double Jeopardy Clause of the United States Constitution protects defendants against the threat of successive prosecutions for the same offense and multiple punishments for the same offense. US Const, Am V (“No person shall... be subject for the same offence to be twice put in jeopardy of life or limb ....”). A double-jeopardy challenge presents a question of law that this Court reviews de novo. People v Herron, 464 Mich 593, 599; 628 NW 2d 528 (2001). B. COLLATERAL ESTOPPEL Collateral estoppel, also known as issue preclusion, is a common-law doctrine that gives finality to litigants. In essence, collateral estoppel requires that “once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Allen v McCurry, 449 US 90, 94; 101 S Ct 411; 66 L Ed 2d 308 (1980). See also Montana v United States, 440 US 147, 153; 99 S Ct 970; 59 L Ed 2d 210 (1979), citing Southern Pacific R Co v United States, 168 US 1, 48-49; 18 S Ct 18; 42 L Ed 355 (1897) (“A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a ‘right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . .. cannot be disputed in a subsequent suit between the same parties or their priviesThe doctrine of collateral estoppel serves many purposes: it “relievefs] parties of the cost and vexation of multiple lawsuits, conserved] judicial resources, and, by preventing inconsistent decisions, encourage[s] reliance on adjudication.” Allen, 449 US at 94. In 1970, the United States Supreme Court explicitly recognized the conceptual overlap between double jeopardy and collateral estoppel, and officially linked them by constitutionalizing collateral estoppel within the Fifth Amendment’s guarantee against double jeopardy. Ashe v Swenson, 397 US 436, 445; 90 S Ct 1189; 25 L Ed 2d 469 (1970). The Ashe Court noted, however, that “collateral estoppel has been an established rule of federal criminal law at least since this Court’s decision more than 50 years ago in United States v. Oppenheimer [242 US 85; 37 S Ct 68; 61 L Ed 161 (1916)].” Ashe, 397 US at 443. The defendant in Ashe had been tried and acquitted of the robbery of one member of a poker game. Following the defendant’s acquittal, the prosecution charged him with the robbery of a different poker player, and he was convicted. The Court explained that collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. The question is “whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Id. at 444. Because the “single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers,” this second prosecution, which necessarily would have required the relitigation of this already determined issue, violated the Fifth Amendment. Id. at 445. The Supreme Court applied collateral estoppel in the context of a double-jeopardy analysis again in Yeager v United States, 557 US 110; 129 S Ct 2360; 174 L Ed 2d 78 (2009). In Yeager, a jury acquitted the defendant of certain fraud charges, but could not reach a verdict on the insider-trading charges. The acquittals and hung counts were logically inconsistent with one another; in order to acquit the defendant of the fraud counts, the jury would have had to decide that the defendant had not possessed insider information, which should have led a rational jury to also acquit him of the insider-trading charges. The Court held that this apparent inconsistency did not change the preclusive force of the acquittal in a second prosecution under the Double Jeopardy Clause. “A hung count is not a relevant part of the record of the prior proceeding,” and therefore has no place in the collateral-estoppel analysis. Yeager, 557 US at 121. In other words, the Court held that the hung counts were not legally meaningful and could not defeat the preclusive force of the acquittals. C. INCONSISTENT VERDICTS As with collateral estoppel, the Supreme Court authority concerning the validity of inconsistent jury verdicts is well developed. In Dunn v United States, 284 US 390, 393-394; 52 S Ct 189; 76 L Ed 356 (1932), the Court held that inconsistent verdicts within a single jury trial are permissible, explaining “[t]hat the verdict may have been the result of compromise, or of a mistake on the part of the jury .... But verdicts cannot be upset by speculation or inquiry into such matters.” This Court has similarly held that inconsistent verdicts do not require reversal, because “[j]uries are not held to any rules of logic nor are they required to explain their decisions.” People v Vaughn, 409 Mich 463, 466; 295 NW 2d 354 (1980). The Supreme Court reaffirmed this principle in Powell, 469 US 57, rejecting the defendant’s argument that the principles of collateral estoppel should require a different result. The defendant, who had been acquitted of the predicate felony but convicted of the compound felony, argued that principles of collateral estoppel should be incorporated into the inconsistent verdict case and should require the reversal of the compound-felony conviction. Id. at 64 (“[I]ndeed, [the defendant] urges that principles of res judicata or collateral estoppel should apply to verdicts rendered by a single jury, to preclude acceptance of a guilty verdict on a [compound felony] where the jury acquits the defendant of the predicate felony.”) (emphasis added). The Court disagreed with the defendant, noting that in the case of an inconsistent verdict, “it is unclear whose ox has been gored.” Id. at 65. The defendant’s conviction stood. III. APPLICATION Our decision in this case hinges on whether, as the Court of Appeals held, the inconsistent-verdict reasoning of Dunn and Powell is relevant to the defendant’s collateral-estoppel claim such that the rule from Ashe and Yeager does not apply. As an initial matter, we note that the inconsistent-verdict cases, Dunn and Powell, feature only direct appeals from a single jury verdict. By definition, collateral estoppel and double jeopardy are simply not applicable to a single verdict, even when that verdict is inconsistent. Ashe and Yeager, in contrast, each concerned the propriety of a second prosecution. The very application of the Double Jeopardy Clause necessarily requires more than one trial: Again, double jeopardy is irrelevant within the scope of a single prosecution and the resulting verdict because the defendant is in continuing jeopardy in any single trial. Yeager, 557 US at 117; id. at 130 (Scalia, J., dissenting) (“As a conceptual matter, it makes no sense to say that events occurring within a single prosecution can cause an accused to be twice put in jeopardy.”) (citation and quotation marks omitted). See also Boston Muni Court Justices v Lydon, 466 US 294, 308-309; 104 S Ct 1805; 80 L Ed 2d 311 (1984). Relatedly, if a defendant’s conviction is reversed on direct appeal, a second prosecution does not implicate double-jeopardy concerns, because in that instance too the defendant is still in continuing jeopardy. In a second prosecution following an appellate reversal, only “[ajcquittals, [not] convictions, terminate the initial jeopardy.” Lydon, 466 US at 308. Because Powell involved an appeal from a single trial, no double-jeopardy concerns were present, despite the defendant’s attempt to make them relevant. Powell, 469 US at 64. While the verdict in Powell was inconsistent, the doctrine of collateral estoppel was not relevant. Dunn, 284 US at 393. Collateral estoppel, like double jeopardy more broadly, necessarily presupposes some passage of time between a final adjudication of an issue at one time, and the threat of a subsequent adjudication of the same issue. In this case, the Court of Appeals apparently extrapolated from Powell the proposition that application of collateral estoppel is only appropriate when there was a prior consistent verdict. Since Powell did not concern a second prosecution, and therefore no double-jeopardy concerns were implicated, the inconsistent-verdict analysis that Powell provides does not address the important issue presented in the case at hand. The Court of Appeals’ reliance on Powell to authorize re-charging the defendant with felony murder was misplaced, given that his objection sounded in double jeopardy, not the inconsistency of his initial verdict. It is instead the Yeager holding that demonstrates why the prosecution cannot re-try the defendant for felony murder. Yeager embodies the unremarkable but fundamental proposition that if an issue has been finally resolved at one moment in time, the same issue cannot be resolved differently at a subsequent time. The defendant in this case finds himself facing exactly this problem; he stands acquitted of first-degree home invasion, the only predicate felony that could support a conviction for felony murder and which is thus an element of felony murder, a charge he is facing again. Convicting him of felony murder would, therefore, require the same factual basis as home invasion, for which he was previously and finally acquitted. This is what Yeager prevents. The importance of an acquittal in the context of the Double Jeopardy Clause is well established. It is of course long settled that, given his acquittal of home invasion, the prosecution is barred from re-charging the defendant again with home invasion, even though the legal error at trial required vacating his convictions. That error does not permit him to be retried for home invasion, even had the error contributed to his acquittal of that charge just as it contributed to his convictions (which does not seem to be the case here). An acquittal is final and unassailable; double jeopardy is a one-way ratchet. Ball v United States, 163 US 662, 671; 16 S Ct 1192; 41 L Ed 300 (1896) (“The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the constitution. However it may be in England, in this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense.”). See also Fong Foo v United States, 369 US 141, 143; 82 S Ct 671; 7 L Ed 2d 629 (1962) (finding an acquittal to be an absolute bar to a subsequent prosecution even when the acquittal was “based upon an egregiously erroneous foundation”); United States v DiFrancesco, 449 US 117, 129; 101 S Ct 426; 66 L Ed 2d 328 (1980) (“The law attaches particular significance to an acquittal.”); Yeager, 557 US at 119 (“[T]he jury’s acquittals unquestionably terminated petitioner’s jeopardy with respect to the issues finally decided in those counts.”). The inconsistency in the defendant’s initial jury verdict here — though distracting and confounding as illogical verdicts are — does not alter this fundamental principle, given the subsequent appellate reversal of his convictions. Notwithstanding the dissent’s lengthy protest to the contrary, the initial guilty verdicts are no more. Although the defendant was convicted of felony murder, that conviction has since been vacated because it was constitutionally infirm; the defendant no longer stands convicted, not of anything, not at all. The only final adjudication the defendant carries into his second trial, then, is his acquittal of first-degree home invasion, which must be given effect pursuant to the collateral-estoppel prong of double jeopardy in the retrial. Lydon, 466 US at 308. Yeager thus controls: The defendant’s reversed felony-murder conviction here must be treated exactly as the hung counts were treated in Yeager. Neither a hung count nor a count that is reversed on appeal can defeat the preclusive effect of an acquittal. Like a hung count, a reversed count is not a final adjudication; by operation of law the finality of the conviction has been undone. By holding that a legal error required the reversal of a defendant’s convictions, we have legally proclaimed that those convictions are no longer adjudications at all. Indeed, the legal meaning of a reversed conviction is settled. As the Supreme Court has said: [R] ever sal for trial error, as distinguished from evidentiary sufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect.... [Burks v United States, 437 US 1, 15; 98 S Ct 2141; 57 L Ed 2d 1 (1978) (emphasis added).][ ] The same is not true of the defendant’s acquittal. An acquittal is never recast or disturbed, no matter what error might have produced it. Ball, 163 US at 671. The defendant begins his second trial with only one perfected adjudication — his acquittal of first-degree home invasion. Just as in Yeager, the acquittal must be given preclusive effect.6 Our disagreement with the dissent boils down to exactly this point: The dissent believes that a legally vacated conviction is still meaningful for the purposes of collateral-estoppel analysis.* ****** We see no available way to bring that legally vacated conviction back to life. The prosecution is free to retry the defendant on all the other vacated convictions. But the Double Jeopardy Clause collaterally estops a new prosecution for felony murder. IV CONCLUSION We conclude that the Double Jeopardy Clause prevents the prosecution from re-charging the defendant with felony murder when the only verdict that remains is the defendant’s acquittal of the predicate felony. Therefore, we reverse the judgment of the Court of Appeals and remand this case to the trial court for further proceedings. YOUNG, C.J., and CAVANAGH and KELLY, JJ., concurred with McCormack, J. The defendant has not argued that the “same offense” rationale of double jeopardy is implicated. Thus we address only whether the collateral-estoppel strand of double jeopardy is implicated. The dissent is correct that Justice Scalia relied on Dunn and Powell “to support his position that the inconsistent nature of the verdict in Yeager nullified Yeager’s reliance on the valid and final acquittal for collateral estoppel purposes.” Justice Sealia’s view, however reasonable, is not the rule of law we must apply here as he, of course, dissented in Yeager. We cite Justice Sealia’s dissent for the unremarkable proposition that double-jeopardy concerns are only implicated when there is a second trial. There is one exception: in two cases the Supreme Court has applied the Double Jeopardy Clause to midtrial acquittals. In both instances, the Court held that the midtrial acquittals were final and that the Double Jeopardy Clause barred their reconsideration. Smith v Massachusetts, 543 US 462, 473; 125 S Ct 1129; 160 L Ed 2d 914 (2005); Smalis v Pennsylvania, 476 US 140, 145-146; 106 S Ct 1745; 90 L Ed 2d 116 (1986). These exceptions are, of course, inapplicable to this case in which there was no mid-trial acquittal. Indeed, Smith and Smalis support the more important proposition for the defendant, that acquittals are final and unassailable in the application of the Double Jeopardy Clause. We agree with the dissent that the Supreme Court squarely and thoroughly addressed whether collateral-estoppel principles are relevant to inconsistent verdicts in Powell, but we are not similarly troubled by why the Court did so given that double-jeopardy concerns are simply not applicable within the scope of a single trial. The defendant made the argument that collateral estoppel should bar his inconsistent verdict and managed to convince the United States Court of Appeals for the Ninth Circuit of his view. The Supreme Court disagreed, and naturally explained its reasoning. We know of no other situation in a criminal prosecution in which we permit a defendant’s vacated conviction to be used to the defendant’s detriment and see no reason why we should create an exception. See, e.g., People v Holt, 54 Mich App 60, 63-64; 220 NW2d 205 (1974) (stating that a vacated conviction cannot he used for sentencing purposes); People v Crable, 33 Mich App 254, 257; 189 NW2d 740 (1971) (stating that a vacated conviction cannot be used to impeach a defendant). We disagree with the dissent’s understanding of Burks'. Burks stands for the proposition that a reversed conviction is legally meaningless, which is what matters for our purposes. Of course it is always the case that “society maintains a valid concern for insuring that the guilty are punished,” Burks, 437 US at 15, and that concern animates the authority that permits the prosecution to retry the defendant for all of the offenses that were vacated but for which there is no double-jeopardy constraint. In this case it is only the felony-murder charge that is barred on retrial, not second-degree murder, assault with intent to commit great bodily harm less than murder, carrying a firearm during the commission of a felony, and two counts of unlawful imprisonment. The defendant remains in continuing jeopardy on these vacated convictions, and would so remain with respect to his felony-murder conviction but for the preclusive force of his home-invasion acquittal. The Yeager Court’s discussion of the rationality of verdicts in determining whether collateral estoppel applies is not particularly relevant here, where there is only one verdict to consider. It is noteworthy, however, that the jury verdict in Yeager was not obviously rational or consistent. The Supreme Court instead rationalized the verdict by treating the hung counts, which were inconsistent with the acquittals, as legal “nonevents,” given that they were not final adjudications. The Court of Appeals’ reversal of the defendant’s felony-murder conviction in this case renders that conviction a “nonevent” as well. A reversed conviction is of even less legal consequence than a hung count. Although it is understandable that the Supreme Court would need to dedicate some time to analyzing the proper weight to give a hung count — an undisturbed jury “determination” of a sort — at the time of the defendant’s second trial when analyzing how to give meaning to a jury’s findings, it is much easier to determine what weight should be given a reversed conviction — none. Burks, 437 US at 15. A reversed conviction, like a hung count, cannot be considered a relevant part of the record of the prior proceeding. See Yeager, 557 US at 121. The Yeager and Ashe Courts were not considering vacated convictions in their collateral-estoppel analyses, of course, but undisturbed jury findings. Those undisturbed findings, therefore, were still available for discernment. In cases, like Yeager and Ashe, in which there is an undisturbed jury verdict to examine at the time of retrial, a reviewing court must delve into the facts and circumstances of the jury’s findings in order to understand the verdict’s specific meaning. When, as here, there simply is no conviction to be so analyzed, as it was previously vacated by the Court of Appeals, we are bound by that legal finding. We cannot undo the reversal and delve back into a jury finding that has been held to be invalid. The dissent jumps over this critical step. Because a reversal renders a conviction meaningless, there is nothing left for a reviewing court to examine or decipher. Neither State v Kelly, 201 NJ 471; 992 A2d 776 (2010), nor Evans v United States, 987 A2d 1138 (DC, 2010), are helpful to our analysis. Although the dissent is correct that these cases involve similar facts, neither engages the argument that a vacated conviction functions as a proclamation that a jury determination is a legal nullity. It is difficult to understand whether United States v Bruno, 531 Fed Appx 47, 49 (CA 2 2013), has any persuasive force, given that it is an unpublished order devoid of any specific factual background as to the nature of the convicted and acquitted counts. But from the cursory facts that are presented, it does not appear that the charges decided differently involved the same conduct or subject matter, which would alone foreclose a collateralestoppel claim. Of course we are not hound by any opinion from a sister jurisdiction reaching the opposite conclusion that we reach here, especially when none addresses the issue we find decisive.
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PER CURIAM. This case comes to the Court on the recommendation of the Judicial Tenure Commission (JTC) that Judge Bruce U. Morrow (respondent) be suspended from office for 90 days without pay. Respondent has filed a petition requesting that this Court reject or modify that recommendation. After review of the entire record and due consideration of the parties’ arguments, we agree with the JTC’s conclusion that respondent committed judicial misconduct, but we are not persuaded that the recommended sanction is appropriate in this case. Instead, we hold that a 60-day suspension without pay is proportionate to the body of judicial misconduct established by the record. I. FACTS Respondent is a judge on the 3rd Circuit Court in Wayne County, Michigan. He is therefore subject to all the duties and responsibilities imposed on him by the canons of judicial conduct and the standards for discipline set forth in MCR 9.104 and MCR 9.205. Before the formal complaint was filed in this case, respondent and the examiner entered into a settlement agreement whereby the parties stipulated to a set of facts involving respondent’s conduct in four criminal cases in which respondent was the presiding judge. As part of the agreement, respondent consented to be publicly censured. The JTC agreed that the stipulated facts established judicial misconduct and, over a two-member dissent, recommended that this Court impose the agreed-upon public censure. The dissenting JTC members would have recommended a 60- to 90-day suspension. This Court rejected the proposed public censure as too lenient in light of the facts presented and remanded for further proceedings while retaining jurisdiction. Thereafter, the JTC reported that the parties were unable to reach a new settlement agreement. In response, this Court entered a confidential order stating that a 90-day suspension was an appropriate order of discipline and that such a sanction would enter unless respondent objected by withdrawing his consent to be disciplined. Respondent withdrew his consent, and on March 7, 2013, the JTC filed Formal Complaint No. 92 against respondent. The complaint alleges 10 counts of judicial misconduct, all arising out of criminal cases in which respondent was the presiding judge. The facts of each count can be summarized as follows: Count 1: In People v Orlewicz, Case No. 07-23972, respondent closed the courtroom to the public and the victim’s family during a postconviction hearing without specifically stating the reasons for the closure or entering a written order as required by MCR 8.116(D). Respondent subsequently ordered his court reporter not to prepare transcripts of the hearing. Count 2: In People v Fletcher, Case No. 08-10018, respondent failed to sentence a defendant convicted of operating a motor vehicle while intoxicated, third offense, MCL 257.625, in accordance with the mandatory minimum of 30 days in jail as prescribed by MCL 257.625(9)(c)(¿¿), despite the prosecutor’s bringing the relevant statute to his attention. Respondent later discharged the defendant from probation without the defendant’s having served the mandatory 30 days in jail. Count 3: In People v Slone, Case No. 09-29628, respondent sentenced the defendant to a prison term 18 months below the sentencing guidelines range. Count 4: In People v McGee, Case No. 05-8641, respondent refused the prosecutor’s request to remand the defendant convicted of first-degree criminal sexual conduct with a person under the age of 13 to jail awaiting sentencing as required by MCL 770.9b(l). Count 5: In People v Wilder, Case No. 09-3577, following the defendant’s guilty plea, respondent dismissed the case sua sponte on the basis that a previous dismissal order was with prejudice. When the prosecutor informed him that his justification was contradicted by the record — in fact, the prior dismissal was without prejudice — respondent stated that the dismissal was “conditional with prejudice.” Count 6: In People v Jones, Case No. 08-13361, respondent sua sponte dismissed the case on the basis of unreliable information in a search warrant affidavit after directing the prosecution to produce all its search warrant records involving a particular confidential informant and was subsequently disqualified from the case by the Court of Appeals. Count 7: In People v Boismier, Case No. 08-12562, respondent failed to place a sidebar conference on the record, failed to rule on the defendant’s request for a curative instruction, and failed to follow instructions from the Court of Appeals to hold an evidentiary hearing on a contested legal issue, and his ruling on remand was not supported by the trial record. Count 8: In People v Redding, Case No. 07-3989, at the beginning of a trial over which he was to preside, respon dent left the bench, shook hands with the defendant, and gave a package of documents to defense counsel. Count 9: In People v Moore, Case No. 06-3221, respondent sua sponte subpoenaed medical records of the defendant without the parties’ knowledge or consent. Count 10: In People v Hill, Case No. 09-18342-02, respondent personally retrieved an inmate from lockup, escorted him to his courtroom, and sentenced him without restraints or courtroom security personnel present. On March 15, 2013, this Court appointed the Honorable Edward Sosnik as master. In his report, the master found that a preponderance of the evidence established the factual basis for each of the allegations in the formal complaint. However, the master concluded that the facts constituted judicial misconduct in only two counts— Count 4 and Count 10. After hearing argument on objections to the master’s report, the JTC issued its decision and recommendation on December 9, 2013. A majority of the JTC disagreed in large part with the master’s conclusions of law, concluding that the evidence established judicial misconduct in eight of the ten allegations. On the basis of the disciplinary factors established in In re Brown, the JTC recommended that respondent be suspended for 90 days without pay. II. ANALYSIS A. STANDARD OF REVIEW Judicial tenure cases come to this Court on recommendation of the JTC, but the authority to discipline judicial officers rests solely in the Michigan Supreme Court.* ** Accordingly, we review de novo the JTC’s findings of fact, conclusions of law, and recommendation for discipline. The examiner has the burden to prove allegations of judicial misconduct by a preponderance of the evidence. B. FACTUAL FINDINGS AND CONCLUSIONS OF LAW After careful review of the factual record in this case, we agree with the master and the JTC that a preponderance of the evidence establishes the factual basis of the allegations in the formal complaint. We further agree that the record establishes that respondent committed the acts of judicial misconduct as set forth by the JTC majority, and we formally adopt its conclusions of law. In our view, the totality of the evidence in this case paints a portrait of a judicial officer who was unable to “separate the authority of the judicial office he holds from his personal convictions[.]” In Orlewicz, respondent’s perfunctory ruling closing the courtroom to the public and the victim’s family without complying with the governing court rule impeded the proper administration of justice. And, in Fletcher and McGee, respondent’s refusal to follow mandatory statutory language after the controlling authority was brought to his attention evinced a willful failure to observe the law, eroding the public’s confidence in a fair and impartial judiciary. Similarly corrosive of the public’s faith in our judicial system was respondent’s disregard of a superior court order directing him to hold a hearing in Boismier. In Wilder, respondent’s recasting of a previous order dismissing a case without prejudice to somehow justify his sua sponte dismissal of the case after it was reissued, despite the defendant’s intention to plead guilty, degraded the integrity of the judicial process and the judiciary itself. In Moore, respondent failed to recognize the limits of his adjudicative role when he subpoenaed the defendant’s medical records without the parties’ knowledge or consent at a point when the case could have gone to trial with him possibly as the trier of fact. In Hill, respondent recklessly placed himself and others in his courtroom at risk of serious harm by personally bringing a defendant convicted of several violent crimes from lockup and sentencing him without restraints or courtroom security present. Finally, in Redding, respondent showed poor judgment by coming down from the bench at the start of trial to shake hands with a criminal defendant and deliver papers to his counsel. At a minimum, respondent’s unexplained delivery of documents and peculiar greeting of a litigant under these circumstances created the appearance of impropriety. In sum, we agree with the JTC that respondent failed to adhere to the high standards of professional conduct that our Constitution, court rules, and canons of judicial conduct require of judicial officers. Respondent claims his conduct should be immune from action by the JTC because he acted “in good faith and with due diligence!.]” Respondent misapprehends the meaning of “good faith.” Acting in disregard of the law and the established limits of the judicial role to pursue a perceived notion of the higher good, as respondent did in this case, is not “good faith.” We do not share respondent’s concern that our decision today spells the end of judicial independence. Rather, it reinforces the principle that, although judicial officers should strive to do justice, they must do so under the law and within the confines of their adjudicative role. C. PROPORTIONALITY OF RECOMMENDED SANCTION The JTC recommends that this Court suspend respondent for 90 days without pay. The JTC arrived at this recommendation after finding that six of the seven Brown factors militated in favor of a more serious sanction. According to the JTC, the evidence revealed “a pattern of willfully disregarding the law and proper legal procedures in the handling of cases.” Not only did the conduct occur on the bench, but “[m]uch of Respondent’s misconduct was prejudicial to the actual administration of justice.” When his conduct did not implicate the actual administration of justice, respondent at least created the appearance of impropriety. The JTC further determined that respondent’s conduct was deliberate, rather than spontaneous, and that “[a] judge [who] fails to follow the law necessarily undermines the ability of the justice system to reach just results.” However, the JTC concluded that none of respondent’s conduct involved the unequal application of justice. This Court gives considerable deference to the JTC’s recommendations for sanctions, but our deference is not “a matter of blind faith[.]” Instead, it “is a function of the JTC adequately articulating the bases for its findings and demonstrating that there is a reasonable relationship between such findings and the recommended discipline.” Several considerations in this case persuade us to deviate downward from the JTC’s recommended sanction. This Court’s overriding duty in the area of judicial discipline proceedings is to treat “equivalent cases in an equivalent manner and . . . unequivalent cases in a proportionate manner.” This duty necessarily requires this Court to make qualitative assessments of the nature of the misconduct at issue. In an attempt to fulfill our duty to treat JTC respondents equitably while maintaining predictability and consistency in our judicial discipline decisions, this Court articulated a set of disciplinary factors in In re Brown. But the Brown factors are intentionally nonexhaustive. Thus, other relevant considerations not expressly accounted for by the Brown factors may properly inform the disciplinary analysis. One principle that has guided this Court’s disciplinary analysis, but which is not expressly ac counted for by the Brown factors, is the principle that dishonest or selfish conduct warrants greater discipline than conduct lacking such characteristics. Generally speaking, we have imposed greater discipline for conduct involving exploitation of judicial office for personal gain. This principle has also been long recognized in the related area of attorney discipline proceedings. As established above, respondent’s actions in the eight cases constitutes judicial misconduct subject to discipline by this Court, regardless of whether, as the master put it, “his heart [was] in the right place.” However, the fact that he did not seek to personally benefit from his misconduct is a relevant mitigating factor in determining the appropriate discipline. In this respect, this case contrasts with two cases involving 90-day suspensions in which the respondents’ misconduct included, among other things, use of their judicial office for personal gain. In a disciplinary scheme that seeks to treat equivalent conduct equivalently and dissimilar conduct proportionately, the fact that we have imposed 90-day suspensions in cases involving conduct that typically warrants greater discipline is a relevant consideration in determining the appropriate sanction in this case. A second consideration persuading us to deviate from the recommended 90-day suspension is our assessment of the JTC’s analysis of the first Brown factor. Under the first Brown factor, the JTC determined that respondent engaged in “a pattern of willfully disregarding the law and proper legal procedures in the handling of cases.” Although we agree that some of the counts show a pattern of willful disregard of controlling legal authority, we believe the JTC overstated the pattern in this case. Our review of the record reveals a pattern in Orlewicz, Fletcher, McGee, and Boismier — disregard of controlling authority, be it mandatory statutes or a superior court order. In each of these cases, respondent’s decisions were controlled by unambiguous mandatory language, and in each case respondent defied the controlling authority. The rest of the cases, however, do not fit this pattern. Insofar as the remaining counts showed a “disregard[ for]. . . proper legal procedures,” this “pattern” is so general that it could conceivably describe every instance of judicial misconduct on the bench, in which case the first Brown factor would be rendered meaningless. In cases like this, when the examiner alleges a collection of isolated incidents of misconduct, a more nuanced analysis is necessary to ensure that we treat “equivalent cases in an equivalent manner and . .. unequivalent cases in a proportionate manner.” The remaining counts of misconduct — Wilder, Red-ding, Moore, and Hill — share nothing in common except for the fact that they constitute judicial misconduct. Although the number of instances of misconduct is an important consideration in determining the appropriate sanction in judicial discipline cases, the first Brown factor focuses specifically on whether the respondent continued to engage in the same type of judicial misconduct, thereby signifying judicial conduct more harmful to the integrity of the judicial system. In none of the remaining counts did respondent repeat the same type of misconduct. The remaining counts are too unrelated — occurring in separate cases and involving different types of misconduct — to constitute a meaningful pattern for purposes of the first Brown factor. In sum, the JTC overstated the extent to which the first Brown factor weighed in favor of a harsher sanction. In determining the appropriate sanction in this case, we recognize that respondent’s case is unlike any other case we have dealt with in recent years, which naturally makes it harder to identify an appropriate baseline on which to apply the Brown factors. Many of respondent’s acts of misconduct, taken alone, would probably warrant no more than a public censure. The other more serious instances of misconduct, taken alone, would likely merit a short suspension. However, when the allegations are aggregated and the body of misconduct is considered as a whole, a greater sanction is necessary to protect the integrity of the judiciary as an institution. Mindful that the Brown factors weigh in favor of a more serious sanction — though not as heavily as the JTC’s analysis implies — we conclude that a 60-day suspension is proper. In concluding that a deviation is warranted in this case, we acknowledge that at a prior stage in these proceedings, this Court stated that a 90-day suspension was appropriate on the facts presented at the time. However, after careful study of the record subsequently developed in this case, and in light of our previous judicial discipline decisions, we conclude that when a judge commits a series of legal errors for which there can be no colorable good-faith excuse, a 60-day suspension is a sufficiently severe sanction to protect the integrity of the judiciary while also maintaining fidelity to the overarching principle that equivalent conduct be treated equivalently. hi. CONCLUSION Respondent’s judicial misconduct requires that he be suspended in order to restore the public’s faith and confidence in the judiciary. However, for the reasons stated above, we find that the recommended 90-day suspension is disproportionate to the judicial misconduct established on this record. We therefore modify the JTC’s recommendation and order that Honorable Bruce U. Morrow, Judge of the 3rd Circuit Court, be suspended without pay from the performance of his judicial duties for a period of 60 days, effective 21 days from the issuance of this opinion. Pursuant to MCR 7.317(C)(3), the Clerk is directed to issue the judgment order forthwith. Markman, Kelly, Zahra, McCormack, and Viviano, JJ., concurred. In re Morrow, 493 Mich 878 (2012). According to the master, “[Tjhere is a pattern in ... these cases, but not necessarily as described by the Examiner. Respondent’s ‘pattern’ of judging is to proactively prevent legally wrongful results. Though his methods are sometimes unorthodox, ‘his heart is in the right place’ ensuring in his mind, that justice prevails in the criminal justice system.” The JTC made no mention of two of the alleged instances of misconduct, Counts 3 and 6, evidently agreeing that these counts did not establish judicial misconduct. Our review of the record in those cases leads us to the same conclusion. Accordingly, we need not address these allegations further. In re Brown, 461 Mich 1291 (2000). One JTC member, 3rd Circuit Court Judge Michael Hathaway, concurred in part and dissented in part. He would have concluded that respondent’s handling of the Orlewicz, Wilder, and Boismier cases (Counts 1, 5, and 7) did not constitute judicial misconduct. However, he concurred in the recommendation for a 90-day suspension. Const 1963, art 6, § 30. In re James, 492 Mich 553, 560; 821 NW2d 144 (2012). MCR 9.211(A). In particular, we agree with the JTC that respondent committed the following acts in violation of the corresponding canons and court rules governing judicial conduct: misconduct in office, Const 1963, art 6, § 30(2) and MCR 9.205; conduct prejudicial to the administration of justice, Const 1963, art 6, § 30(2), MCR 9.205(B), and MCR 9.104(1); failure to establish, maintain, enforce, and personally observe high standards of conduct “so that the integrity and independence of the judiciary may be preserved,” Canon 1; irresponsible or improper conduct that erodes public confidence in the judiciary, Canon 2A; conduct involving impropriety and the appearance of impropriety, Canon 2A; failure to respect and observe the law, Canon 2B; failure to conduct oneself in a manner that promotes public confidence in the integrity and impartiality of the judiciary, Canon 2B; failure to be faithful to the law, Canon 3A(1); and conduct that exposes the legal profession and the courts to obloquy, contempt, censure, or reproach, MCR 9.104(2). In re Hague, 412 Mich 532, 562; 315 NW2d 524 (1982). MCR 9.203(B). See Hague, 412 Mich at 552-554 (concluding that the respondent’s willful disregard of gun-control and prostitution laws was properly subject to sanctions by the JTC). The seven factors, as set forth in Brown, are: (1) misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct; (2) misconduct on the bench is usually more serious than the same misconduct off the bench; (3) misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of propriety; (4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does; (5) misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated; (6) misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery; (7) misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion are more serious than breaches of justice that do not disparage the integrity of the system on the basis of a class of citizenship. [Brown, 461 Mich at 1292-1293.] Id. at 1292. Id. Id. Id. at 1292-1293. See id. at 1293 (“The JTC should consider these and other appropriate standards that it may develop in its expertise, when it offers its recommendations.”) (emphasis added). Despite our exhortation in Brown, the JTC has not formally adopted additional standards for determining the appropriate sanction for par ticular misconduct. We take this opportunity to again encourage the JTC to develop such standards so they may be applied in future judicial discipline proceedings. See, e.g., In re McCree, 495 Mich 51; 845 NW2d 458 (2014) (the respondent judge used his position to violate court security policies and engage in numerous ex parte communications with the complaining witness in a case before him in order to pursue a sexual relationship with her); In re James, 492 Mich 553; 821 NW2d 144 (2012) (the respondent judge misappropriated funds for her personal benefit); In re Justin, 490 Mich 394; 809 NW2d 126 (2012) (the respondent judge “fixed” traffic tickets for himself, his wife, and his staff). American Bar Association Standards for Imposing Lawyer Sanctions (ABA Standards), Standard 9.22(b), available at [http://perma.cc/ P9WG-Ú39T], accessed June 16, 2014 (listing “dishonest or selfish motive” as an aggravating factor in deciding the appropriate sanction to impose). See, e.g., ABA Standard 9.32(b) (listing “absence of a dishonest or selfish motive” as a mitigating factor in deciding the appropriate sanction to impose). The record in this case reveals some confusion regarding this principle, so we take this opportunity to clarify the appropriate role of a respondent’s motive in judicial disciplinary proceedings. The master concluded that respondent’s actions in eight of the ten allegations were not misconduct because “ ‘his heart [was] in the right place’ ” In rejecting the master’s approach, the JTC stated that judicial misconduct must be reviewed under an objective, rather than subjective, standard. We agree with the JTC that the standard for determining whether something constitutes judicial misconduct in the first place is an objective one. See In re Ferrara, 458 Mich 350, 362; 582 NW2d 817 (1998). However, when determining the appropriate sanction for particular misconduct, the JTC (and this Court) may properly consider a respondent’s subjective intent along with other mitigating and aggravating factors. See, e.g., In re Tschirhart, 422 Mich 1207, 1209-1210 (1985) (recognizing that the respondent’s subjective intent “properly receive[s] consideration”); see also Brown, 461 Mich at 1293 (stating that “misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion” warrants a more severe sanction). It does not appear that the JTC took respondent’s motive into account when fashioning its recommended sanction. See In re Thompson, 470 Mich 1347 (2004); In re Trudel, 465 Mich 1314 (2002). For this same reason, we decline to equate this case to previous cases in which this Court imposed a 90-day suspension for the commission of a crime. See In re Nebel, 485 Mich 1049 (2010) (operating a motor vehicle while visibly impaired in violation of MCL 257.625(3)); In re Steenland, 482 Mich 1230 (2008) (same); In re Halloran, 466 Mich 1219 (2002) (exposing genitals to undercover police officer, the facts of which constitute a violation of the indecent exposure statute, MCL 750.335a). Needless to say, violation of the criminal law necessarily undermines a judge’s ability to sit in judgment of others, which explains why this Court has consistently imposed at least a 90-day suspension for the perpetration of even a single crime. The same cannot necessarily be said of the types of misconduct present in this case. The first Brown factors provides that “misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct[.]” Brown, 461 Mich at 1292. Id. The Chief Justice is correct that our judicial discipline jurisprudence lacks a formal framework for determining the appropriate level of discipline in a particular case, and this Court has begun taking steps to address this deficiency through our administrative process. But simply labeling the misconduct as “lawlessness” provides no substantive tools to assist the JTC and this Court in the yeoman’s work of qualitatively assessing the facts of future JTC cases in light of this and other JTC decisions. Because the JTC provided no meaningful explanation for why a 90-day suspension is proportionate to respondent’s misconduct, it is incumbent upon this Court to independently assess the misconduct in the context of our prior decisions and legal principles to determine a sanction proportionate to respondent’s misconduct. By doing so, we have answered the Chief Justice’s call “to work to establish consistent and transparent standards for establishing levels of sanctions.” See In re Moore, 464 Mich 98, 118; 626 NW2d 374 (2001). We thus take no issue with the Chief Justice’s conclusion that respondent’s misconduct requires a significant sanction. Unlike the dissent, however, we believe a suspension of any length is a serious matter. We further believe that a 60-day sanction will make it clear to respondent, the bench, and the public that misconduct of this type will not be tolerated. We caution, however, that our decision today should not be read as setting the upper limit for this type of misconduct should future cases present additional aggravating circumstances or lack the mitigating circumstance presented here. In the absence of predetermined sanction guidelines, this Court must qualitatively assess respondent’s misconduct in the context of prior JTC cases to determine where the misconduct falls on the spectrum. Although the dissent would equate respondent’s misconduct to criminal behavior like indecent exposure, this Court is persuaded that violation of the criminal law and using one’s judicial office for personal gain are qualitatively more serious than the set of disparate incidents of misconduct in this case, many of which, taken alone, would probably warrant no more than a public censure.
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YOUNG, C. J. The issue to be determined in this case is whether MCL 771.1(2) divests a sentencing judge of jurisdiction if a defendant is not sentenced within one year after the imposition of a delayed sentence. We hold that it does not. The unambiguous language of the statute provides that the court may delay sentencing “for not more than 1 year to give the defendant an opportunity to prove to the court his or her eligibility for probation or other leniency compatible with the ends of justice and the defendant’s rehabilitation . . . ,” The one-year limitation designates the maximum amount of time that sentencing may be delayed in order to provide defendant the chance to establish his worthiness of leniency. After one year, sentencing may no longer be delayed for that purpose, and the judge is required to sentence defendant as provided by law. Court of Appeals caselaw holding that a court may not sentence a defendant if the one-year period of delay is exceeded is overruled. We reverse the trial court’s dismissal of the case, reinstate defendant’s conviction, and remand to Wayne County Circuit Court for sentencing. Upon remand, the matter is to be assigned to a different judge. I. FACTS AND PROCEDURAL HISTORY On February 10, 2011, defendant was a passenger in an automobile that was stopped by the police for a traffic violation. As defendant exited the vehicle, officers observed defendant drop a silver automatic handgun into the map pocket of the car door and quickly close the door. After establishing that defendant did not possess a permit to carry a concealed weapon, he was arrested and subsequently charged with the crime of carrying a concealed weapon (CCW) in violation of MCL 750.227. Defendant, age 21 at the time, was a college student with no prior criminal history. The prosecutor permitted defendant to plead guilty to the reduced charge of attempted CCW and recommended a probationary sentence. Defendant tendered his guilty plea on May 12, 2011. At sentencing, defense counsel urged the court to delay sentencing for one year, at which time defendant would be “very close to graduating from college” and the prosecutor’s office might change its mind and either dismiss the case entirely or permit defendant to plead guilty to a misdemeanor. The prosecutor objected to a delayed sentence and asked that defendant be sentenced to probation. The trial court expressed concern that defendant would “end up with a felony,” thus limiting his employment opportunities. The court asked the parties to file sentencing memoranda and return to court to discuss whether delayed sentencing would be appropriate. Expressing its unhappiness with the prosecutor’s position, the court stated that it would consider “the delayed sentence with one day over a year; then [the court] would have lost jurisdiction.” The parties returned to court on June 17, 2011. Defense counsel requested that sentencing be delayed for one year under MCL 771.1 to give defendant the opportunity to show that he deserved “significant leniency” from the court. The prosecutor continued to object to delayed sentencing, stating that the prosecutor’s office did not intend to reduce the criminal charge any further. The trial court stated that it found it “disturbing]” that the prosecutor opposed letting defendant’s sentence “go a day over 365 days,” which would allow defendant to “end[] up with no record” because the court would “lose jurisdiction.” The trial court announced that it would exercise its discretion and delayed the imposition of defendant’s sentence for one year. On the record, the trial court scheduled defendant’s sentencing for June 15, 2012, which would have occurred within the one-year statutory period. However, consistent with statements the trial judge had made on the record that she desired to “lose” jurisdiction in the case, the order signed that day, as well as the entry in the Register of Actions, reflect that the court scheduled defendant’s sentencing for June 18, 2012— precisely one year and one day later. At sentencing, defense counsel reminded the judge that delayed sentencing was sought so that defendant could prove “he was worthy of a dismissal.” Counsel noted that defendant had complied with all court conditions, paid all fines and costs, and would graduate from college. Abruptly interrupting defense counsel’s colloquy, the trial court stated that defendant’s sentencing was “past a year,” meaning that the court had “lost jurisdiction.” Over the prosecutor’s objection, the trial court not only refused to sentence the defendant, it dismissed the case entirely. The prosecutor filed a delayed application for leave to appeal with the Court of Appeals, arguing that the trial court had no legal authority to dismiss the case over the prosecution’s objections, because MCL 771.1 did not permit dismissal of the case. The Court of Appeals issued an order denying the delayed application for leave to appeal for lack of merit. This Court granted leave to appeal. II. STANDARD OF REVIEW The consequences, if any, for a trial court’s failure to sentence a defendant within one year pursuant to MCL 771.1 is a question of statutory interpretation that this Court reviews de novo. The Court’s primary responsibility in statutory interpretation is to determine and give effect to the Legislature’s intent. The words of a statute are the most reliable indicator of the Legislature’s intent and should be interpreted according to their ordinary meaning and the context within which they are used in the statute. Once the Legislature’s intent has been discerned, no further judicial construction is required or permitted, as the Legislature is presumed to have intended the meaning it plainly expressed. III. ANALYSIS The statutory provision at issue in this case, MCL 771.1(2), is contained in Chapter XI of the Code of Criminal Procedure, which concerns probation. The statute provides in relevant part: (2) In an action in which the court may place the defendant on probation, the court may delay sentencing the defendant for not more than 1 year to give the defendant an opportunity to prove to the court his or her eligibility for probation or other leniency compatible with the ends of justice and the defendant’s rehabilitation, such as participation in a drug treatment court.... When sentencing is delayed, the court shall enter an order stating the reason for the delay upon the court’s records. The delay in passing sentence does not deprive the court of jurisdiction to sentence the defendant at any time during the period of delay [ ] The plain language of the statute permits a trial court to delay sentencing for up to one year for those defendants who are eligible for placement on probation. The purpose of delaying a defendant’s sentence pursuant to this statutory provision is entirely for the benefit of the convicted defendant — it is to “give the defendant an opportunity to prove to the court” that he is worthy of “probation or other leniency compatible with the ends of justice” and rehabilitation. Read in its entirety, the statute provides a simple and straightforward time limit, indicating the maximum amount of time the court may delay sentencing in order to give the defendant a chance to prove himself. The statute also indicates that the imposition of a delayed sentence is not irrevocably binding upon the trial court, in that it does not “deprive the court of jurisdiction to sentence the defendant at any time during the period of delay.” In urging this Court to uphold the actions of the trial court, defendant relies on a series of Court of Appeals cases holding that an unexcused violation of the one-year limit contained in MCL 771.1(2) results in the trial court losing jurisdiction to sentence a defendant. However, the action taken by the trial court in this case was not simply limited to abstaining from sentencing defendant Smith. There is simply no basis in our law for the trial court to do as it did in this case. Without citing a scintilla of legal authority, the trial court dismissed the case over the objection of the prosecutor. Aside from flagrantly ignoring contrary Court of Appeals precedent in entirely dismissing the case, the trial court usurped the prosecutor’s role in violation of the separation of powers principles contained in our constitution. It is axiomatic that the power to determine whether to charge a defendant and what charge should be brought is an executive power, which vests exclusively in the prosecutor. The trial court had no legal basis to trump the prosecutor’s charging decision, much less dismiss the case after the defendant had pleaded to the charge and had never sought to withdraw his plea. Furthermore, in so far as the Court of Appeals cases relied upon by defendant have construed MCL 771.1(2) to preclude sentencing when there is a failure to impose a sentence within 365 days of the imposition of a delayed sentence, those cases have incorrectly interpreted the statute. Nothing in the language of the statute requires this, and the Legislature is certainly capable of explicitly divesting a court of jurisdiction had such a remedy been intended. Indeed, the only mention of the word “jurisdiction” in the entire statutory provision simply clarifies that a court retains its ability to sentence a defendant at any time during the period of delay. The fact that the Legislature explicitly permits a court to sentence defendant at any time during the period of delay simply does not create the affirmative pregnant underlying the rationale of the cases cited by defendant — namely, that the court is not permitted to sentence a defendant outside the period of delay. Thus, in the absence of a clear and unambiguous indication that the Legislature intended that a defendant avoid all punishment as a remedy for not being sentenced within one year when his sentence is delayed under MCL 771.1(2), we decline to impose such a remedy. After the one-year statutory limitation elapses, sentencing may no longer be delayed for the purpose of permitting a defendant the opportunity to prove that he is worthy of leniency, and the judge is required to sentence defendant as provided by law. We overrule People v McLott, People v Turner, People v Dubis, and People v Boynton to the extent they hold that a court loses jurisdiction to sentence a defendant as a remedy for a violation of MCL 771.1(2). This is not to say, however, that there are no limitations on a trial court’s ability to delay the imposition of a defendant’s sentence. Longstanding Michigan law requires that a defendant be sentenced within a reasonably prompt time as part of defendant’s right to a speedy trial. In determining whether a defendant’s right to a speedy trial has been violated, a four-part balancing test is used that considers (1) the length of delay, (2) the reason for the delay, (3) defendant’s assertion of his right, and (4) prejudice to the defendant. Applying those factors to the facts of this case does not indicate that defendant’s speedy trial rights were violated. Regarding the first factor, the length of the delay was a mere one day past the one-year limitation contained in MCL 771.1(2). Second, the reason for the delay, as can be inferred from the record before us, was a calculated effort by the trial court to circumvent the law and avoid the charging decision of the prosecutor in order to spare defendant the consequences of acquiring a criminal record. Third, defendant makes no claim, and the record does not reveal, any indication that defendant ever asserted his desire to be sentenced before the one-year period of delay had elapsed. Indeed, such an assertion would have been antithetical to defense counsel’s stated goal of having the case dismissed. Lastly, defendant makes no claim that he has been prejudiced by the one-day delay in sentencing. In short, application of the relevant factors militates against the conclusion that defendant’s speedy trial rights were violated. IV CONCLUSION Because the plain language of MCL 771.1(2) does not deprive a sentencing judge of jurisdiction if a defendant is not sentenced within one year after the imposition of a delayed sentence, we overrule the Court of Appeals decisions in People v McLott, People v Turner, People v Dubis, and People v Boynton to the extent they hold otherwise. We reverse the trial court’s dismissal of the case, reinstate defendant’s conviction, and remand to the Wayne County Circuit Court for sentencing. Because the trial judge in this case demonstrated overt hostility to the prosecution of this case by manipulating the scheduling of sentencing in order to thwart the prosecutor’s charging decision and by entirely dismissing the case, thereby exceeding even the scope of incorrectly decided Court of Appeals precedent, we remand for sentencing before a different judge. Markman, Kelly, Zahra, McCormack, and Viviano, JJ. concurred with YOUÑG, C.J. CAVANAGH, J. I concur in the result only. MCL 771.1(2). An investigation revealed that the handgun had been previously stolen from a nearby police department. MCL 750.227; MCL 750.92. It was obvious from the beginning that the trial judge did not like the prosecutor’s position and was entertaining ways of avoiding sentencing the defendant for the crime to which he had pleaded guilty. The trial court’s willingness to circumvent the prosecutor’s insistence that the defendant be sentenced to probation for attempted CCW could not he more clear when the trial judge stated that she was unhappy with the prosecutor’s position and suggested twice on the record at different hearings that she might schedule the delayed sentence in order to lose jurisdiction under the then prevailing interpretation of MCL 771.1. People v Smith, unpublished order of the Court of Appeals, entered May 7, 2013 (Docket No. 312242). Judge Murray would have peremptorily reversed the trial court’s order of dismissed and reinstated defendant’s conviction. He conceded that defendant could not be sentenced pursuant to binding Court of Appeals precedent, but would have “allow[ed] the parties to address the appropriate remedy on remand.” People v Smith, 495 Mich 858 (2013). People v Koonce, 466 Mich 515, 518; 648 NW2d 153 (2002). Id. People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). People v Stone, 463 Mich 558, 562; 621 NW2d 702 (2001). MCL 771.1(2) (emphasis added). MCL 771.1(1) delineates the criminal offenses for which a defendant may be placed on probation rather than serve a term of imprisonment. The trial court has the discretion to impose a term of probation for all misdemeanors or felonies with the exception of murder, treason, criminal sexual conduct in the first or third degree, armed robbery, and major controlled substance offenses. The statute further requires that the court make the determination “that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant suffer the penalty imposed by law .. . .” The language providing that sentencing may be delayed “for not more than 1 year” indicates that sentencing could be delayed for a lesser period of time. Thus, regardless whether defendant’s behavior during the period of delay is abhorrent or exemplary, a sentencing judge is not required to wait until the period of delay has elapsed in order to sentence defendant in accordance with the law and dispense whatever leniency the Court is inclined to provide. See People v McLott, 70 Mich App 524; 245 NW2d 814 (1976) (jurisdiction to impose sentence was not lost where the delay was only six days and because the trial court could not be present); People v Turner, 92 Mich App 485; 285 NW2d 340 (1979); People v Dubis, 158 Mich App 504; 405 NW2d 181 (1987); People v Boynton, 185 Mich App 669; 463 NW2d 174 (1990). MCR 7.215(C)(2). See, e.g., Boynton 185 Mich App at 671. There, the Court of Appeals reversed the trial court’s dismissal of charges against defendant, emphasizing “that an unexcused violation of the one-year limit contained in the delayed sentencing statute affects only the court’s authority to sentence the defendant, nothing more.” See Const 1963, art 3, § 2. “The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” The trial judge’s oath of office required her to solemnly swear to support the Michigan and federal Constitutions and to faithfully discharge the duties of a circuit court judge. See MCL 168.420; Const 1963, art 11, § 1. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683; 194 NW2d 693 (1972). See MCL 780.133, which provides the remedy for a violation of MCL 780.131: “In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” (Emphasis added.) See Lash v Traverse City, 479 Mich 180, 193; 735 NW2d 628 (2007); People v Anstey, 476 Mich 436, 445 n 7; 719 NW2d 579 (2006) (“Because the Legislature did not provide a remedy in the statute, we may not create a remedy that only the Legislature has the power to create.”). See People v Kennedy, 58 Mich 372, 376-377; 25 NW 318 (1885); People v McIntosh, 103 Mich App 11, 20-21; 302 NW2d 321 (1981); People v Bracey, 124 Mich App 401; 335 NW2d 49 (1983). See also MCR 6.425(E)(1) (“The court must sentence defendant within a reasonably prompt time after the plea or verdict unless the court delays sentencing as provided by law.”). People v Chism, 390 Mich 104, 111; 211 NW2d 193 (1973); Barker v Wingo, 407 US 514, 530; 92 SCt 2182; 33 L Ed 2d 101 (1972). In re Justin, 490 Mich 394; 809 NW2d 126 (2012).
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MARKMAN, J. This Court granted leave to appeal to address whether the trial court’s failure to provide the appellant-surety notice within seven days of defendant’s failure to appear, as is required by MCL 765.28, bars forfeiture of the bail bond posted by the surety. Relying on In re Forfeiture of Bail Bond (People v Moore), 276 Mich App 482; 740 NW2d 734 (2007), the Court of Appeals held that a court’s failure to comply with the seven-day notice provision of MCL 765.28(1) does not bar forfeiture of a bail bond posted by a surety. Because we conclude that Moore was wrongly decided, we hold that a court’s failure to comply with the seven-day notice provision of MCL 765.28(1) does bar forfeiture of a bail bond posted by a surety. When a statute provides that a public officer “shall” undertake some action within a specified period of time, and that period of time is provided to safeguard another’s rights or the public interest, as with the statute at issue here, it is mandatory that such action be undertaken within the specified period of time, and noncompliant public officers are prohibited from proceeding as if they had complied with the statute. Accordingly, we reverse the judgment of the Court of Appeals and vacate the trial court’s orders to the extent that the orders forfeited the bail bond posted by the surety and ordered the surety to pay $50,000. I. FACTS AND HISTORY Defendant Corey Deshawn Gaston was charged with one count of first-degree home invasion, MCL 750.110a(2); two counts of first-degree criminal sexual conduct, MCL 750.520b(l)(a) and (2)(b); one count of second-degree criminal sexual conduct, MCL 750.520c(l)(a); and one count of kidnapping, MCL 750.350. Appellant-surety posted a $50,000 bond to obtain defendant’s release from jail. On February 7, 2008, defendant failed to appear at a scheduled conference, and on February 11, 2008, defendant failed to appear for trial. The trial court ordered that defendant be rearrested and remanded to jail and that his bond be forfeited. Three years later, on February 8, 2011, the trial court sent notice to the surety to appear to show cause why judgment should not enter for forfeiture of the full amount of the bond. In response, the surety filed a motion to set aside the forfeiture based on the trial court’s failure to timely provide notice of defendant’s failure to appear, as is required by MCL 765.28(1). Relying on Moore, the trial court denied the motion and entered a judgment against defendant in the amount of $150,000 and against the surety in the amount of $50,000. The surety appealed in the Court of Appeals, arguing that the trial court’s failure to provide it notice of defendant’s failure to appear within seven days, as is required by MCL 765.28(1), should have barred the forfeiture of the surety’s bond. The Court of Appeals, also relying on Moore, affirmed the trial court and held that the trial court’s failure to provide the surety notice of defendant’s failure to appear within seven days did not foreclose the court from entering judgment on the forfeited bond. In re Forfeiture of Bail Bond (People v Gaston), unpublished opinion per curiam of the Court of Appeals, issued September 13, 2012 (Docket No. 305004). The surety then appealed in this Court, presenting the same argument that it had before the trial court and the Court of Appeals. This Court granted leave to appeal to address (1) whether a court’s failure to comply with the 7-day notice provision of MCL 765.28 bars forfeiture of a bail bond posted by a surety and (2) whether In re Forfeiture of Bail Bond (People v Moore), 276 Mich App 482 (2007), holding that the 7-day notice provision is directory rather than mandatory, was correctly decided. [In re Forfeiture of Bail Bond (People v Gaston), 493 Mich 936 (2013).] Defendant is still at large and is currently identified as one of the United States Marshals’ fifteen most wanted fugitives. II. STANDARD OF REVIEW Questions of statutory interpretation are questions of law that are reviewed de novo. Martin v Beldean, 469 Mich 541, 546; 677 NW2d 312 (2004). Questions relating to the proper interpretation of court rules are also questions of law that are reviewed de novo. People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). III. ANALYSIS MCL 765.28(1) provides in pertinent part: If default is made in any recognizance in a court of record, the default shall be entered on the record by the clerk of the court. After the default is entered, the court shall give each surety immediate notice not to exceed 7 days after the date of the failure to appear. The notice shall be served upon each surety in person or left at the surety’s last known business address. Each surety shall be given an opportunity to appear before the court on a day certain and show cause why judgment should not be entered against the surety for the full amount of the bail or surety bond. If good cause is not shown for the defendant’s failure to appear, the court shall enter judgment against the surety-on the recognizance for an amount determined appropriate by the court but not more than the full amount of the bail, or if a surety bond has been posted the full amount of the surety bond. If the amount of a forfeited surety bond is less than the full amount of the bail, the defendant shall continue to be liable to the court for the difference, unless otherwise ordered by the court. [Emphasis added.] MCR 6.106(I)(2) provides in pertinent part: If the defendant has failed to comply with the conditions of release, the court may issue a warrant for the arrest of the defendant and enter an order revoking the release order and declaring the bail money deposited or the surety bond, if any, forfeited. (a) The court must mail notice of any revocation order immediately to the defendant at the defendant’s last known address and, if forfeiture of bail or bond has been ordered, to anyone who posted bail or bond. [Emphasis added.] In this case, there is no question that the trial court failed to provide the surety notice within seven days after the date of defendant’s failure to appear, as is required by MCL 765.28(1), or provide the surety notice of the revocation order “immediately,” as is required by MCR 6.106(I)(2). The question at issue is whether this failure to provide the required notice bars forfeiture of the bail bond posted by the surety. Both the trial court and the Court of Appeals relied on Moore, 276 Mich App at 495, in concluding that the failure to provide notice does not bar such a forfeiture. In Moore, the trial court entered a judgment against the surety even though the trial court had not timely notified the surety, and the Court of Appeals denied leave to appeal. This Court remanded to the Court of Appeals for consideration as on leave granted. In re Forfeiture of Bail Bond (People v Moore), 474 Mich 919 (2005). On remand, the Court of Appeals affirmed the trial court and held that “ ‘ “[t]he general rule is that if a provision of a statute states a time for performance of an official duty, without any language denying performance after a specified time, it is directory.” ’ ” Moore, 276 Mich App at 494-495, quoting People v Smith, 200 Mich App 237, 242; 504 NW2d 21 (1993), quoting 3 Sutherland, Statutory Construction (5th ed), § 57:19, pp 47-48. Relying on this “general rule,” the Court of Appeals held that “the seven-day notice provision of MCL 765.28(1) is directory, not mandatory” and therefore concluded that “[d]espite the trial court’s six-month delay in notifying [the surety] of [defendant’s] failure to appear, . . . the statute did not prevent the trial court from entering judgment against [the surety] on the forfeited surety bond.” Moore, 276 Mich App at 495. The Court of Appeals’ decision in Moore was not appealed in this Court, and therefore this is the first opportunity for this Court to consider whether Moore was correctly decided. For the reasons that follow, we conclude that it was not. To begin with, Moore gave only passing consideration to the “general rule” that “ ‘[s]halT is a mandatory term, not a permissive one.” People v Francisco, 474 Mich 82, 87; 711 NW2d 44 (2006); see also Fradco, Inc v Dep’t of Treasury, 495 Mich 104, 114; 845 NW2d 81 (2014) (“The Legislature’s use of the word ‘shall’... indicates a mandatory and imperative directive.”); 3 Sutherland, Statutory Construction (7th ed), § 57:19, pp 75-76 (“Generally, when the word ‘shall’ is used in referring to a time provision, it should be construed to be mandatory”). Along similar lines, Moore failed to recognize the consequence of the fact that the Legislature amended MCL 765.28(1) in 2002, changing “may” to “shall.” See Fay v Wood, 65 Mich 390, 397; 32 NW 614 (1887) (recognizing that the significance of a statutory amendment changing “should” to “shall” is that the statute becomes “mandatory”). Prior to 2002, MCL 765.28(1) provided that the court “may give the surety or sureties twenty days’ notice.” (Emphasis added.) In 2002, the Legislature amended MCL 765.28(1) to provide that the court “shall give each surety immediate notice not to exceed 7 days after the date of the failure to appear.” 2002 PA 659 (emphasis added). While the term “may” is permissive, not mandatory, Browder v Int’l Fidelity Ins Co, 413 Mich 603, 612; 321 NW2d 668 (1982), the term “shall,” as discussed, is a “mandatory term, not a permissive one,” Francisco, 474 Mich at 87. Therefore, in 2002, the Legislature changed the notice provision of MCL 765.28(1) from being permissive to being mandatory. Yet, despite this change, Moore continued to interpret the notice provision of MCL 765.28(1) as being permissive rather than mandatory. Moore construed the statute as if it still read “may,” thereby rendering the 2002 amendment of the statute nugatory even though it is well established that “ ‘[c]ourts must give effect to every word, phrase, and clause in a statute and avoid an interpretation that renders nugatory or surplusage any part of a statute.’ ” People v Couzens, 480 Mich 240, 249; 747 NW2d 849 (2008) (citation omitted). Moore also failed to recognize that this Court has long held that “ ‘whenever the act to be done under a statute is to be done by a public officer, and concerns the public interest or the rights of third persons, which require the performance of the act, then it becomes the duty of the officer to do it.’ ”Agent of State Prison v Lathrop, 1 Mich 438, 444 (1850) (citation omitted). In Lathrop, this Court concluded that because the applicable statutory notice provision — which provided that it “shall be the duty of the agent to give at least twenty days’ notice,” id. at 439 (emphasis added) — “was intended for the benefit of the state as well as those who may contract with it,” “compliance with the duties set forth [were] necessary to carry into effect the object of the law. ...” Id. at 444. In other words, because the statutory notice provision was designed to protect the public interest, as well as the rights of third persons, it must be construed as a mandatory provision. Cf. Fay, 65 Mich at 401 (“Statutes fixing a time for the doing of an act are considered as only directory, where the time is not fixed for the purpose of giving a party a hearing, or for some other purpose important to him.”); Hooker v Bond, 118 Mich 255, 257; 76 NW 404 (1898), quoting Cooley, Taxation (2d ed), p 289 (“ ‘The fixing of an exact time for the doing of an act is only directory, where it is not fixed for the purpose of giving the party a hearing, or for any other purpose important to him.’ ”). Because “ ‘[t]his Court [must] presume that the Legislature of this state is familiar with the principles of statutory construction,’ ” Nation v W D E Electric Co, 454 Mich 489, 494-495; 563 NW2d 233 (1997) (citation omitted), we must presume that when the Legislature amended MCL 765.28(1) in 2002, changing “may” to “shall,” it intended “shall” to mean what this Court has held that “shall” means since at least 1850. The Lathrop rule is very similar to the rule set forth in 3 Sutherland, § 57:19, pp 72-74: It is difficult to conceive of anything more absolute than a time limitation. And yet, for obvious reasons founded in fairness and justice, time provisions are often found to be directory where a mandatory construction might do great injury to persons not at fault, as in a case where slight delay on the part of a public officer might prejudice private rights or the public interest. The general rule is that if a provision of a statute states a time for performance of an official duty, without any language denying performance after a speci fied time, it is directory. However, if the time period is provided to safeguard someone’s rights, it is mandatory, and the agency cannot perform its official duty after the time requirement has passed. [Emphasis added.] While Moore quoted and relied on the “general rule” articulated by Sutherland, it completely ignored the sentences immediately preceding and following Sutherland’s articulation of the rule. That is, while Moore adopted Sutherland’s general rule, it did not give any consideration to Sutherland’s explanation regarding when this general rule should and should not be applied. Specifically, in the sentence that immediately follows the general rule, Sutherland explained that “if the time period is provided to safeguard someone’s rights, it is mandatory, and the agency cannot perform its official duty after the time requirement has passed.” Id. This exception to Sutherland’s general rule would certainly apply in this case because the time period at issue was clearly “provided to safeguard someone’s rights.” Cf. Smith, 200 Mich App at 243 (“The time limits were created not to protect the rights of accused drunk drivers, but to prod the judiciary, and the prosecutors who handle drunk driving cases, to move such cases with dispatch.”). Indeed, it was provided to safeguard both the rights of the surety and the public interest. Requiring the court to provide notice to the surety within seven days of the defendant’s failure to appear clearly protects the rights of the surety by enabling the surety to promptly initiate a search for the defendant, which is obviously significant to the surety because “[a] surety is generally discharged from responsibility on the bond when the [defendant] has been returned to custody or delivered to the proper authorities . .. .” Moore, 276 Mich App at 489; see also MCL 765.26(2) (“Upon delivery of his or her principal at the jail by the surety or his or her agent or any officer, the surety shall be released from the conditions of his or her recognizance.”). A surety’s ability to apprehend an absconding defendant is directly affected by whether the surety has received prompt notice of the defendant’s failure to appear because the former’s ability to recover and produce an absconding defendant declines with the passage of time. Therefore, the statutory notice provision upholds the surety’s right to an effective opportunity to secure the defendant before having its bond forfeited. At the same time, the notice provision protects the interests of the public in an equally obvious manner because the sooner the court notifies the surety of the defendant’s failure to appear, the sooner the surety can begin to search for the defendant, the more effective its pursuit will be, and the sooner the defendant can be placed behind bars and prevented from further harming members of the public. See Helland & Tabarrok, The Fugitive: Evidence on Public Versus Private Law Enforcement from Bail Jumping, 47 J L & Econ 93, 94 (2004) (noting an expectation that “the felony defendants who fail to appear are the ones most likely to commit additional crimes”); see also Moore, 276 Mich App at 489 (holding that a surety is authorized to arrest and deliver a defaulting defendant to the jail or to the county sheriff); MCL 765.26(1) (authorizing a surety to arrest and deliver a defendant if the surety wishes to be relieved from responsibility for the defendant). Providing timely notice to the surety also protects the public’s interest injustice under law by ensuring that those who have been charged with crimes, and who have subsequently absconded, timely face those charges in court. Thus, there is a common interest served by the notice provision: a private interest of the surety in being relieved of financial responsibility under the bond and a public interest in facilitating the apprehension of an absconding defendant, both in order to protect the safety of the public and to ensure a timely trial on the criminal charges. The apprehension of absconding defendants is essential to the effective guarantee of our criminal laws, and sureties play a critical role in this regard. As one commentator has recognized, sureties are a necessary part of the apprehension process because “public police are often strained for resources, and the rearrest of defendants who fail to show up at trial is usually given low precedence.” Helland, 47 J L & Econ at 98. As a result, “the probability of being recaptured is some 50 percent higher for those released on surety bond relative to other releases,” id. at 113, and “[defendants released on surety bond are ... 53 percent less likely to remain at large for extended periods of time,” id. at 118. These findings indicate that sureties are “effective at. . . recapturing defendants.” Id. However, sureties can only be effective at recapturing defendants if they are aware that there is an absconding defendant who needs to be recaptured — hence the rationale for, and the importance of, the statutory notice provision. Moore also failed to recognize that the underlying rationale of Sutherland’s general rule itself does not justify its application in the instant case. Although this rationale is explained in the sentence that immediately precedes the general rule, the Court of Appeals altogether failed to address it. The rationale is contained in the observation that “time provisions are often found to be directory where a mandatory construction might do great injury to persons not at fault, as in a case where slight delay on the part of a public officer might prejudice private rights or the public interest.” 3 Sutherland, § 57:19, pp 73-74. See, for example, Dolan v United States, 560 US 605; 130 S Ct 2533, 2539-2540; 177 L Ed 2d 108 (2010) (“The fact that a sentencing court misses the statute’s 90-day deadline, even through its own fault or that of the Government, does not deprive the court of the power to order restitution” because (a) “the [statute’s] efforts to secure speedy determination of restitution is primarily designed to help victims of crime secure prompt restitution rather than to provide defendants with certainty as to the amount of their liability” and (b) “to read the statute as depriving the sentencing court of the power to order restitution would harm those — the victims of crime— who likely bear no responsibility for the deadline’s being missed and whom the statute also seeks to benefit.”) (emphasis in the original). By contrast, in the instant case, a mandatory construction would neither “do great injury to persons not at fault” nor “prejudice private rights or the public interest.” 3 Sutherland, § 57:19, pp 73-74. Indeed, just the opposite is true. Not mandating timely notice of the defendant’s failure to appear might well do great injury to persons not at fault because, as explained earlier, if the surety does not know that the defendant failed to appear, the surety would not have begun searching for the defendant, and if the surety has not begun searching for the defendant, not only would the defendant have remained free during this period, possibly to do harm to other individuals, but the longer-term prospects of apprehension would also have been diminished. For this reason, the “public interest” in the instant case is not only not prejudiced by adopting a mandatory construction, but would instead be prejudiced by not adopting a mandatory construction. The “private rights” of the surety are also better protected by adopting a mandatory construction because, as discussed earlier, the surety will be discharged from its financial obligation under the bond once the surety finds and returns the defendant to the jail or the county sheriff, which will certainly be easier if the surety is promptly notified of the defendant’s failure to appear. Even the trial court in Moore acknowledged “the difficulty that a surety might face in apprehending a [defendant] when the court fails to provide timely notice of the [defendant’s] default.” Moore, 276 Mich App at 496. Moore also failed to realize that Sutherland recognizes circumstances that compel the necessity of mandatory constructions: [S]ome limitations of time within which a public officer is to act must be construed as mandatory. Such a construction is necessary where failure to obey the time limitation embodies a risk of unknown injury to public or private rights. [3 Sutherland, § 57:19, p 80.] For the reasons already explained earlier, a court’s failure to notify the surety within seven days of the defendant’s failure to appear “embodies a risk of unknown injury to public or private rights.” If a court fails to provide the surety with timely notice of the defendant’s failure to appear, a statutory scheme designed to create an incentive for third parties to assist in the apprehension of defendants who abscond, commit new crimes, or threaten other persons will almost certainly be rendered less effective and, as a result, “persons not at fault” (i.e., members of the public) will almost certainly face a greater threat from such defendants. The “private rights” implicated by a breach of MCL 765.28(1) — in this case, $50,000 of the resources of the surety — are even more obvious. Because “failure to obey the time limitation embodies a risk of unknown injury to public [and] private rights,” a mandatory construction of the notice provision is necessary. To summarize, by relying exclusively on Sutherland’s general rule, Moore failed to recognize that the fact that the time period at issue here safeguards both the rights of another and the public interest is relevant not only with regard to our own caselaw, see Lathrop, supra, but also with regard to (a) Sutherland’s exception to his “general rule,” (b) Sutherland’s underlying rationale for his general rule, and (c) Sutherland’s articulation of additional circumstances that compel a mandatory construction. Sutherland indicates that the remedy for a public entity’s failure to follow a mandatory time period is that the public entity “cannot perform its official duty after the time requirement has passed.” 3 Sutherland, § 57:19, p 74. This is consistent with this Court’s rule in Lathrop, in which we explained that a public entity’s “power only arises from the performance of the acts required to be done” by law. Lathrop, 1 Mich at 445. When a public entity does not perform its statutory obligations in a timely manner, and fails to respect the statutory preconditions to its exercise of authority, it lacks the authority to proceed as if it had. In this case, the consequence is that the court cannot require the surety to pay the surety bond because the court failed to provide the surety notice within seven days of defendant’s failure to appear, as the statute clearly requires. Any other interpretation of the statute would render the seven-day notice requirement entirely nugatory. It is well established that [w]e have no authority to treat any part of a legislative enactment, which is not ambiguous in itself and is capable of reasonable application, as so far unimportant that it is a matter of indifference whether it is complied with or not. We must suppose the legislature saw sufficient reason for its adoption, and meant it to have effect; and whether the reason is apparent to our minds or not, we have no discretion to dispense with a compliance with the statute. [Hoyt v East Saginaw, 19 Mich 39, 46 (1869).] Therefore, in the instant case, we have no authority to treat the statutory notice provision “as so far unimportant that it is a matter of indifference whether it is complied with or not.” Because the statutory notice provision is a mandatory provision, it must be complied with, and if it was not, the court may not proceed with its bond forfeiture proceeding. In Moore, 276 Mich App at 494-495, the Court of Appeals relied on People v Smith, 200 Mich App 237; 504 NW2d 21 (1993), and People v Yarema, 208 Mich App 54; 527 NW2d 27 (1994), to conclude that the surety was not entitled to a remedy for the court’s violation of the seven-day notice provision. However, Smith and Yarema actually stand for the exact opposite proposition, because in those cases the Court of Appeals held that the defendant was entitled to a remedy for the government’s failure to follow statutory time limits. That is, in Smith and Yarema, the Court of Appeals held that the remedy for the failure to arraign the defendant within 14 days, as required by MCL 257.625b(l), was a dismissal without prejudice. Smith and Yarema in turn relied on this Court’s decision in People v Weston, 413 Mich 371, 377; 319 NW2d 537 (1982). Weston involved MCL 766.4, which states that the magistrate “shall set a day for a preliminary examination not exceeding 14 days after the arraignment.” This Court held that because the statute contains an “unqualified statutory command that the examination be held within 12 days,” “[t]he failure to comply with the statute governing the holding of the preliminary examination entitles the defendant to his discharge.” Weston, 413 Mich at 376. Therefore, these cases actually under mine Moore’s assumption that there is no remedy for a statutory violation unless the Legislature expressly states that there is a remedy. See also In re Contempt of Tanksley, 243 Mich App 123, 128-129; 621 NW2d 229 (2000) (“Given the clear legislative mandate that a respondent be afforded a hearing on a charged [personal protection order] violation within seventy-two hours, we hold that a violation of the time limit expressed in MCL 764.15b(2)(a) or MCR 3.708(F)(1)(a) demands dismissal of the charge.”). Finally, Moore also relied on MCL 765.27 to conclude that “[t]he Legislature has plainly declared that the trial court’s failure to provide proper notice of a principal’s default does not bar or preclude the court’s authority to enter judgment on a forfeited recognizance.” Moore, 276 Mich App at 495. MCL 765.27 provides: No action brought upon any recognizance entered into in any criminal prosecution, either to appear and answer, or to testify in any court, shall be barred or defeated nor shall judgment thereon be arrested, by reason of any neglect or omission to note or record the default of any principal or surety at the time when such default shall happen, nor by reason of any defect in the form of the recognizance, if it sufficiently appear, from the tenor thereof, at what court the party or witness was bound to appear, and that the court or a magistrate before whom it was taken was authorized by law to require and take such recognizance. [Emphasis added.] Contrary to Moore’s assertion, MCL 765.27 does not refer to the trial court’s “failure to provide proper notice of a principal’s default.” (Emphasis added.) Instead, it merely refers to the failure “to note or record the default.” (Emphasis added.) In this case, there is no question that the trial court did, in fact, “note or record” the default; it just did not notify the surety of the default within seven days. Therefore, reliance on MCL 765.27 is inapt. For all these reasons, we conclude that Moore was wrongly decided, and therefore we overrule it. Where a statute provides that a public officer “shall” do something within a specified period of time and that time period is provided to safeguard someone’s rights or the public interest, as does the statute here, it is mandatory, and the public officer is prohibited from proceeding as if he or she had complied with the statutory notice period. IV CONCLUSION Because we conclude that Moore was wrongly decided, we overrule it and hold that a court’s failure to comply with the seven-day notice provision of MCL 765.28(1) bars forfeiture of a bail bond posted by a surety. When a statute provides that a public officer “shall” do something within a specified period of time and that time period is provided to safeguard someone’s rights or the public interest, as does the statute here, it is mandatory, and the public officer who fails to act timely is prohibited from proceeding as if he or she had acted within the statutory notice period. Accordingly, we reverse the judgment of the Court of Appeals and vacate the trial court’s orders to the extent that the orders forfeited the bail bond posted by the surety and ordered the surety to pay $50,000. Young, C.J., and Cavanagh, Kelly, Zahra, McCormack, and VIVIANO, JJ, concurred with MArkman, J. See U.S. Marshals, Fugitive Investigations -15 Most Wanted, <http:// www.usmarshals.gov/investigations/rn.ost_wanted/mdex.html> (accessed June 10, 2014) [http://perma.cc/Z992-2ZMQ]. The prosecutor conceded at oral argument that the statutory notice provision is designed to protect the public’s interest in the “seizure [or] recapture of the absconding defendant” and that the government’s interest in collecting the bail money “doesn’t outweigh” the public’s interest in “apprehending fugitives as [effectively and as quickly as possible[.]” Moreover, this public interest can also be viewed in terms of the private interest served with regard to eyewitnesses and other potential witnesses at trial whose safety and security are placed at particular risk by an absconding defendant. Sureties also play a critical role in the process of safeguarding defendants’ constitutional due process rights before trial. The “exception” to Sutherland’s general rule and the underlying rationale of Sutherland’s general rule are really two sides of the same coin. The underlying rationale for construing time provisions as directory is that in some instances, mandatory construction “might do great injury to persons not at fault, as in a case where slight delay on the part of a public officer might prejudice private rights or the public interest,” while the exception to the general rule is that “if the time period is provided to safeguard someone’s rights, it is mandatory, and the agency cannot perform its official duty after the time requirement has passed.” In other words, according to Sutherland, time provisions should be construed as directory if a mandatory construction might prejudice someone’s rights or the public interest, while time provisions should be construed as mandatory if a directory construction might prejudice someone’s rights or the public interest. The prosecutor argues that MCR 2.613(A) bars relief. We respectfully disagree. MCR 2.613(A) provides that “[a]n. . . error or defect in any thing done or omitted by the court or by the parties is not ground for . .. vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.” Refusing to disturb the trial court’s judgment against the surety would be “inconsistent with substantial justice” for the reasons explained earlier — namely, given that the court did not uphold its end of the bargain by notifying the surety within seven days of defendant’s failure to appear, it would be “inconsistent with substantial justice” to require the surety to uphold its part of the bargain by paying the judgment on the bond. It would also undermine the public’s interest in having the court timely notify the surety so that the surety can quickly find and capture absconding defendants. We note that it makes no practical difference whatsoever whether the general rule is expressed in the manner set forth in Sutherland (when a statute provides that a public officer “shall” do something within a specified period of time, it is directory unless the time period is provided to safeguard someone’s rights or the public interest) or in the manner set forth in this opinion (when a statute provides that a public officer “shall” do something within a specified period of time and the time period is provided to safeguard someone’s rights or the public interest, it is mandatory). Both articulations lead to the same result. We adopt the latter articulation, however, because it would seem to be the case more often than not that when the Legislature has chosen to direct a public officer to do something within a specified time, it has done so in order to safeguard another’s rights or the public interest, and thus, more often than not, the directive would be mandatory rather than directory. Moreover, the latter articulation has the considerable virtue of communicating as the default position in interpreting the law that “shall” means “shall.” Webster’s Seventh New Collegiate Dictionary (1967) (defining “shall” as “used to express a command or exhortation”; “used in laws, regulations, or directives to express what is mandatory”).
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CAVANAGH, J. In this case, we must determine what actions a taxpayer must take under MCL 205.30 of the Revenue Act to trigger the accrual of interest on a tax refund. We hold that in order to trigger the accrual of interest, the plain language of the statute requires a taxpayer to (1) pay the disputed tax, (2) make a “claim” or “petition” for a refund, and (3) “file” the claim or petition. Although a “claim” or “petition” need not take any specific form, it must clearly demand, request, or assert a right to a refund of tax payments made to the Department of Treasury that the taxpayer asserts are not due. Additionally, in order to “file” the claim or petition, a taxpayer must submit the claim to the Treasury in a manner sufficient to provide the Treasury with adequate notice of the taxpayer’s claim. I. FACTS AND PROCEDURAL HISTORY This case began as a dispute between the parties regarding whether plaintiff owed tax under the now repealed Single Business Tax Act (SBTA) related to plaintiffs contributions to its Voluntary Employees’ Beneficiary Association (VEBA) trust fund for 1997 through 2001. On August 3, 2005, the Treasury sent an Audit Determination Letter informing plaintiff that the Treasury had determined that the VEBA contributions were taxable under the SBTA and, on the same day, plaintiff returned the letter to the Treasury after checking the box on the letter indicating that plaintiff “disagrees with this determination.” The Audit Determination Letter incorporated the Audit Report of Findings pre pared by the Treasury, which acknowledged that plaintiff “disagrees with the audit determination” and “want[s] to request a hearing on the contested issue.” During the audit process, plaintiff provided the Treasury with detailed summaries of the amount of disputed tax for each tax year. On November 17, 2005, plaintiff requested an informal conference with the Treasury regarding the determination that the VEBA contributions were taxable, among other issues. On August 25, 2006, plaintiff sent a letter to the Treasury withdrawing plaintiffs request for an informal conference, informing the Treasury that plaintiff intended to file a complaint in the Court of Claims, and requesting that the Treasury verify that the disputed tax liability was satisfied with unassigned funds that plaintiff had on deposit with the Treasury. Plaintiffs August 25, 2006 letter stated that application of plaintiffs funds on deposit with the Treasury should be viewed as a payment “under protest” under MCL 205.22. On September 15, 2006, the Treasury sent plaintiff a Final Audit Determination letter assessing plaintiff a tax liability approximately $20 million greater than the single business tax plaintiff previously paid. The Treasury also stated that plaintiff owed approximately $2 million in tax deficiency interest. On September 19, 2006, plaintiff informed the informal conference division that it was withdrawing its request. On December 13, 2006, plaintiff filed a complaint in the Court of Claims asserting that the VEBA contributions were not taxable under the SBTA. That court rejected plaintiffs claim and granted summary disposition to the Treasury. Plaintiff appealed and the Court of Appeals reversed, holding that the VEBA contributions were not taxable under the SBTA. Ford Motor Co v Dep’t of Treasury, 288 Mich App 491; 794 NW2d 357 (2010), lv den 488 Mich 1026 (2011). On August 29, 2011, plaintiff filed a motion in the Court of Claims to enforce the Court of Appeals’ judgment. Before the motion was decided, the Treasury calculated that it owed plaintiff $15 million rather than the $17 million that plaintiff claimed was due and, on September 19, 2011, the Treasury remitted $15 million to plaintiff. The approximate $2 million difference resulted in part from the parties’ disagreement regarding the date that plaintiff filed its claim for a refund, thus triggering interest accumulation on the refund under MCL 205.30. At a hearing, the parties agreed that overpayment interest began accruing 45 days after the date that plaintiff provided the Treasury with adequate notice of a claim for refund of tax overpayment. Regarding the difference between plaintiffs claim that it was entitled to a $17 million refund rather than the $15 million refund that the Treasury provided, plaintiff argued that September 17, 2005, was the correct date to calculate the amount of overpayment interest because it was 45 days after plaintiff responded to the Treasury’s August 3, 2005 Audit Determination Letter, which plaintiff argued constituted adequate notice of a claim of refund. The Treasury argued that plaintiff did not provide adequate notice until December 13, 2006, when plaintiff filed its initial complaint in the Court of Claims and, therefore, the correct date for calculating the overpayment interest was 45 days after December 13, 2006. The Court of Claims held in plaintiffs favor, ordered the Treasury to pay additional overpayment interest, and directed the Treasury to pay costs and attorney fees to plaintiff. The Treasury appealed, and after reconsid eration, the Court of Appeals reversed the trial court on the calculation of overpayment interest, vacated the award of attorney fees, and remanded to the trial court for further consideration of the attorney fees. Ford Motor Co v Dep’t of Treasury, unpublished opinion per curiam of the Court of Appeals, issued February 26, 2013 (Docket No. 306820). We granted leave to appeal, asking the parties to address issues related to the calculation of interest on the refund. Ford Motor Co v Dep’t of Treasury, 495 Mich 861 (2013). II. STANDARD OF REVIEW AND RULES OF STATUTORY INTERPRETATION This case requires interpretation of the Revenue Act. Questions of statutory interpretation are reviewed de novo. Malpass v Dep’t of Treasury, 494 Mich 237,245; 833 NW2d 272 (2013). A trial court’s factual findings are reviewed for clear error. Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008). A factual finding is clearly erroneous “only when the reviewing court is left with the definite and firm conviction that a mistake has been made.” Id. (citation omitted). When interpreting statutes, “our primary task... is to discern and give effect to the intent of the Legislature.” Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999) (citations omitted). To accomplish that task, we begin by examining the language of the statute itself. Id. (citation omitted). “If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written.” Id. (citation omitted). III. ANALYSIS Prior proceedings established that the Treasury erroneously assessed tax on plaintiffs contributions to its VEBA trust fund; thus, the only issue we consider today is the actions a taxpayer must take to trigger the accumulation of interest on a refund. The Revenue Act, MCL 205.1 et seq., governs refunds of erroneously assessed taxes. Specifically, MCL 205.30 provides: (1) The department shall credit or refund ... taxes ... erroneously assessed and collected .. . with interest.... (2) A taxpayer who paid a tax that the taxpayer claims is not due may petition the department for refund of the amount paid within the time period specified as the statute of limitations in [MCL 205.27a], If a tax return reflects an overpayment... the declaration of that fact on the return constitutes a claim for refund. If the department agrees the claim is valid, the amount of overpayment, penalties, and interest shall be first applied to any known liability as provided in [MCL 205.30a] and the excess, if any, shall be refunded to the taxpayer or credited, at the taxpayer’s request, against any current or subsequent tax liability.... (3) The department shall certify a refund to the state disbursing authority who shall pay the amount out of the proceeds of the tax in accordance with the accounting laws of the state. Interest . . . shall be added to the refund commencing 45 days after the claim is filed or 45 days after the date established by law for the filing of the return, whichever is later. Interest on refunds intercepted and applied as provided in [MCL 205.30a] shall cease as of the date of interception. ... [Emphasis added.][ ] Thus, the statutory language establishes that, before interest begins accumulating on a tax refund, a taxpayer must: (1) pay the disputed tax; (2) make a “claim” or “petition;” and (3) “file” the claim or petition. A. A TAXPAYER MUST PAY THE DISPUTED TAX The statutory language provides that the Treasury must credit or refund taxes “erroneously . . . collected.” MCL 205.30(1) (emphasis added). Additionally, MCL 205.30(2) establishes what a taxpayer “whopaid a tax” must do to obtain a refund “of the amount paid.” Emphasis added. Therefore, the statute makes clear what is already obvious: in order to seek a tax refund, a taxpayer must first pay the tax at issue. B. A TAXPAYER MUST “PETITION” FOR OR “CLAIM” A REFUND If the taxpayer paid the tax, MCL 205.30(2) provides that a taxpayer may make a “petition” or “claim” for refund. The Revenue Act does not define “petition” or “claim” as used in MCL 205.30. Therefore, we presume that the Legislature intended for the words to have their ordinary meaning. MCL 8.3a. To assist in determining the ordinary meaning of the relevant words, we may consult a dictionary. Klooster v City of Charlevoix, 488 Mich 289, 304; 795 NW2d 578 (2011) (citation omitted). Relevant definitions of “claim” include: (1) “[t]o demand as one’s due; assert one’s right to,” (2) “[a] demand for something as one’s rightful due; affirmation of a right,” The American Heritage Dictionary of the English Language: New College Edition, (3) “to ask for esp. as a right,” and (4) “to assert to be rightfully one’s own,” Merriam-Webster’s Collegiate Dictionary (11th ed). See, also, Black’s Law Dictionary (9th ed) (defining “claim” in part as “[t]he assertion of an existing right; any right to payment or to an equitable remedy, even if contingent or provisional the <spouse’s claim to half of the lottery winnings>” and “[a] demand for money, property, or a legal remedy to which one asserts a right. . . .”). Because the word “petition” is used as a verb within MCL 205.30(2), see The American Heritage Dictionary of the English Language: New College Edition (explaining that when “petition” is used as a verb, it is “[o]ften followed by for”), the relevant definitions include: (1) “[t]o ask for by petition; request formally,” The American Heritage Dictionary of the English Language: New College Edition, and (2) “to make a request to: SOLICIT ... to make a request; esp : to make a formal written request,” Merriam-Webster’s Collegiate Dictionary (11th ed). See, also, Muldavin v Dep’t of Treasury, 184 Mich App 222, 226; 457 NW2d 50 (1990) (holding that under MCL 205.30(2) “tax overpayment would have to be requested either on a... tax return or by separate petition....”) (emphasis added). Along with the relevant dictionary definitions, our order in NSK Corp v Dep’t of Treasury, 481 Mich 884 (2008), provides further insight regarding the proper interpretation of the terms “petition” and “claim” in MCL 205.30. In NSK Corp, the Treasury conducted an audit and subsequently sent an Audit Determination Letter informing the taxpayer that the taxpayer had overpaid its taxes. The taxpayer responded to the letter by checking the box indicating that the taxpayer agreed with the Treasury’s conclusion that a refund was owed in the amount the Treasury stated, but also checked the box on the letter indicating that the taxpayer disagreed with the Treasury’s determination. Regarding that disagreement, the taxpayer included a written statement demanding interest on the refund under MCL 205.30. The Court of Appeals concluded that the taxpayer was entitled to interest, and that the triggering date for the 45-day waiting period under MCL 205.30(3) was the date that the Treasury sent the Audit Determination Letter to the taxpayer because that was when the Treasury “was aware that [the taxpayer] was entitled to a refund . . . .” NSK Corp v Dep’t of Treasury, 277 Mich App 692, 698; 746 NW2d 886 (2008). We rejected the Court of Appeals’ conclusion with respect to the triggering date for accumulation of interest and instead held that MCL 205.30(2) “requires that the claim be one made by the taxpayer seeking a refund either in a tax return or by separate request.” NSK Corp, 481 Mich at 884 (emphasis added). We concluded that the taxpayer in NSK Corp did not satisfy that requirement until it “responded... to the Treasury Department’s Audit Determination Letter, agreeing with the amount of the refund, but demanding interest on the refund.” Id. Today, we reaffirm our interpretation of the statute in NSK Corp: we conclude that under MCL 205.30 a taxpayer can make a claim for a refund in the form of a tax return, as specifically permitted in MCL 205.30(2), or “by separate request.” NSK Corp, 481 Mich at 884. Additionally, considering the relevant definitions of “claim” and “petition,” we further conclude that a taxpayer is not required to make the claim on a specific Treasury form or in any other specific manner in order to satisfy MCL 205.30. Rather, a taxpayer must only “demand” or “request” the refund or “assert[] ... an existing right” to the refund. For example, in NSK Corp, the taxpayer responded to the Treasury’s Audit Determination Letter by adding information to the form and returning it to the Treasury. Because the form, combined with the additional information explic itly demanded a refund and interest on the refund, it constituted a “claim” for a refund. Alternatively, a taxpayer could satisfy the statutory requirement by sending a separate letter to the Treasury, as long as the letter included the information necessary to constitute a definite demand for, request for, or assertion of a right to a refund. For example, the taxpayer in Lindsay Anderson Sagar Trust v Dep’t of Treasury, 204 Mich App 128, 129; 514 NW2d 514 (1994), “wrote a letter to . . . [the] Treasury requesting a refund of $156,961, which the [taxpayer] claimed had been erroneously paid.” Emphasis added. In short, because a taxpayer can demand, request, or assert a right to a refund by a multitude of methods, we conclude that the taxpayer’s “claim” or “petition” need not take any specific form, so long as it clearly requests or demands that the Treasury return tax payments that the taxpayer asserts were not due. C. THE PETITION OB CLAIM MUST BE “FILED” Finally, under MCL 205.30(3), interest must only be “added to the refund commencing 45 days after the claim is filed . . . .” Emphasis added. As with the terms “claim” and “petition,” the Revenue Act does not define “filed.” Therefore, we again consult the dictionary for guidance in determining the ordinary meaning of the word. The relevant definitions of “file” include: (1) “to initiate (as a legal action) through proper formal procedure,” (2) “to submit documents necessary to initiate a legal proceeding,” Merriam-Webster’s Collegiate Dictionary (11th ed), (3) “[t]o enter (a legal document, for example) on public record or official record,” and (4) “[t]o apply: file for a job,” The American Heritage Dictionary of the English Language: New College Edition. Applying the definitions of “file” to the statute, we conclude that, in order for a taxpayer’s “claim” for refund to trigger the 45-day waiting period in MCL 205.30(3), the taxpayer must “submit” the claim to the Treasury. The clear goal of “filing” the claim is to inform the Treasury that the taxpayer believes that the taxpayer is entitled to a refund. Indeed, the relevant dictionary definitions of “file” seem to imply that the purpose of the act of “fihng” is to inform or notify others of something, whether it is the filer’s intent to initiate a legal action, apply for a job, or engage in some other activity. Accordingly, as the Court of Appeals stated in Sagar Trust, 204 Mich App at 132, “a claim [for a refund] is filed when [the Treasury] receives adequate notice of the claim.” Emphasis added. Indeed, if a taxpayer desires to obtain a refund and seeks to achieve that goal by making a “claim” or “petition” for the refund, logic requires that the taxpayer must notify the Treasury of the taxpayer’s belief that it is entitled to a refund. Otherwise, the only entity that can grant the taxpayer’s claim for a refund — the Treasury — will remain unaware that the taxpayer seeks a refund. Likewise, interpreting the word “file” in MCL 205.30(3) as requiring a taxpayer to provide the Treasury with adequate notice of the taxpayer’s claim or petition for a refund is consistent with the purpose of the 45-day waiting period between submission of the claim or petition and the start of interest accumulation on the refund. Specifically, MCL 205.30(2) states that a refund shall be paid “[i]f the [Treasury] department agrees that the claim is valid . . . .” Em phasis added. Therefore, MCL 205.30(3) creates a 45-day waiting period so that the Treasury can investigate the taxpayer’s claim for a refund and determine its validity before interest begins accumulating. In order to give effect to the legislative intent regarding the 45-day waiting period, the Treasury must be permitted to investigate the claim, and, in order to investigate the claim, the Treasury must have adequate notice of the claim, as the Court of Appeals held in Sagar Trust. In summary, when the statute is read as a whole it is clear that, in order to trigger the 45-day waiting period before interest begins to accrue on a tax refund, a taxpayer must (1) have actually paid the tax at issue; (2) make a “petition . . . for” a refund or “claim for refund” by demanding, requesting, or asserting a right to a refund of tax payments that the taxpayer made to the Treasury return that the taxpayer asserts are not due; and (3) “file” the claim or petition by submitting it to the Treasury, thereby providing the Treasury with adequate notice of the taxpayer’s claim for a refund. IV APPLICATION Applying the above framework to this case, we must first determine when plaintiff paid the disputed tax, because plaintiff could not “claim” or “petition” for a refund until after the disputed tax was paid. The record reflects that plaintiff kept unassigned funds on deposit with the Treasury and that plaintiff could assign those funds to its tax liabilities by directing the Treasury to apply the funds to specific tax liabilities. As relevant to this case, the record reflects that plaintiff had funds on deposit with the Treasury sufficient to pay the disputed tax liability no later than October 31,2002, and that the Treasury acknowledged that plaintiff directed the Trea sury to apply those funds to the disputed tax liability. In addition, during an October 6, 2011 hearing, the trial court concluded that plaintiff had paid the disputed tax liability no later than October 31, 2002. Because the trial court’s conclusion is supported by record evidence, we are not left with a definite and firm conviction that a mistake was made. Therefore, plaintiff satisfied the first requirement for obtaining a refund — paying the disputed tax — no later than October 31, 2002. Next, we must determine whether plaintiff made a “claim” or “petition” for a refund. Plaintiff argues that it made a claim or petition for refund on August 3, 2005, when it responded to the Treasury’s Audit Determination Letter by checking the box indicating that plaintiff “disagrees with this determination.” Specifically, plaintiff contends that its expression of disagreement on August 3, 2005, coupled with the other information known to the Treasury as a result of the audit process, constitutes a claim or petition for refund. Thus, the question is whether, when considered in context with the information known to the Treasury, expressing disagreement with the Treasury’s tax assessment is sufficient to constitute a claim or petition for refund of the money associated with that determination. To begin with, there is no dispute that plaintiff made clear its disagreement with the Treasury’s audit determination regarding the taxability of the VEBA contri butions and that subsequent court proceedings eventually proved plaintiff correct. Additionally, there may be some appeal to the seemingly logical conclusion that a taxpayer who expresses disagreement with a tax assessment is also likely to request a refund of funds paid to satisfy the disputed assessment. However logical that conclusion may appear, the statutory language nevertheless requires more of á taxpayer: the taxpayer must make a claim or petition for a refund, which, as we previously established, requires the taxpayer to explicitly demand, request, or assert a right to a refund. Although expressing disagreement with a tax assessment may imply that the taxpayer may seek a refund, an expression of disagreement alone is not a demand for, request for, or assertion of a right to a refund. Indeed, although we approached the issue from the opposite direction in NSK Corp because in that case the Treasury determined that the taxpayer was entitled to a refund, we nevertheless reached the same conclusion. Specifically, we held that the 45-day waiting period before interest begins to accrue on a tax refund is not triggered merely because the Treasury is aware that the taxpayer is entitled to a refund. Although it is seemingly logical that a taxpayer entitled to a refund will indeed request that refund, we nevertheless concluded that the statutory language requires something more: the taxpayer must make a “separate request” for the refund. NSK Corp, 481 Mich at 884. Therefore, if the Treasury’s actual knowledge that a taxpayer is entitled to a refund is not sufficient to trigger the 45-day waiting period under MCL 205.30(3), a taxpayer’s mere expression of disagreement with a tax assessment cannot constitute a claim or petition for a refund sufficient to trigger the interest waiting period. Rather, the taxpayer must make a “separate request” that clearly demands, requests, or asserts a right to a refund. Because plain tiffs August 3, 2005 response to the Audit Determination Letter did not make such a demand, request, or assertion, it was not a “claim” for a refund under MCL 205.30. We also asked the parties to address whether plaintiffs November 17, 2005 request for an informal conference with the Treasury constituted a claim or petition for refund under MCL 205.30. Although a request for an informal conference could potentially constitute a claim or petition for a refund under the statutory language if the request includes a demand or request for or an assertion of a right to a refund, we conclude that plaintiffs request for an informal conference in this case did not make such a demand, request, or assertion. First, nowhere in the request for an informal conference did plaintiff expressly demand, request, or assert a right to a refund of the VEBA-contribution tax that plaintiff paid. Rather, the request for an informal conference only expressed plaintiffs disagreement with the result of the Treasury’s audit. In fact, the request for an informal conference stated that plaintiff “will be working with the [Treasury’s] audit team to narrow the issues in dispute.” Therefore, plaintiffs request for an informal conference seems to indicate that plaintiff believed that the disagreement could be resolved by further negotiations between the parties rather than a claim or petition for refund. Second, plaintiff’s request for an informal conference listed “the most material items” with which plaintiff disagreed, which included issues that do not form the basis for plaintiff’s refund associated with its VEBA contributions. Therefore, because the request for an informal conference addressed multiple issues, it did not indicate that plain tiff sought a refund for the tax associated with the VEBA contribution. Rather, the request for an informal conference merely listed multiple points of disagreement. Accordingly, we conclude that the request for an informal conference was not a claim or petition for refund for purposes of MCL 205.30. Next, we consider whether plaintiffs August 25, 2006 letter to the Treasury constituted a claim or petition for refund under MCL 205.30. The August 25, 2006 letter withdrew plaintiffs request for an informal conference and informed the Treasury that plaintiff would file an action in the Court of Claims. The letter stated that plaintiffs prior payment of the tax assessment associated with plaintiffs VEBA contributions “should be viewed as a payment under protest within the meaning of MCL 205.22.” Although a taxpayer need not file a lawsuit under MCL 205.22 in order to make a “claim” or “petition” for a refund, we conclude that the reference to this statute in plaintiffs August 25, 2006 letter constituted a claim or petition for refund under MCL 205.30. By referring to MCL 205.22 in expressing plaintiffs decision to institute a formal legal action in a court of law, the August 25, 2006 letter indicated that plaintiff was at that time “claiming] a refund” as distinctly contemplated by MCL 205.22. In other words, by notifying the Treasury that plaintiff would resolve the dispute in the Court of Claims pursuant to MCL 205.22, the August 25, 2006 letter asserted a right to a refund by affirmatively notifying the Treasury that plaintiff was making what MCL 205.22 itself terms a “claim” for refund. Therefore, plaintiffs August 25, 2006 letter satisfied the second requirement necessary to trigger the 45-day waiting period before interest begins to accrue under MCL 205.30: plaintiff made a “claim” or “petition” by informing the Treasury that it intended to file suit in the Court of Claims pursuant to the procedures delineated in MCL 205.22. Finally, we must determine whether plaintiffs August 25, 2006 letter satisfied the requirement that the claim or petition for refund of the amount paid be “filed.” As previously discussed, in order to “file” the claim, a taxpayer must provide the Treasury with adequate notice by “submitting]” the claim to the Treasury. The August 25, 2006 letter satisfied that requirement because plaintiff mailed the letter to the Treasury, and, as evidenced by the Treasury’s responsive letter dated September 15, 2006, the Treasury received it. See Sagar Trust, 204 Mich App at 132 (holding that the Treasury had adequate notice of the taxpayer’s claim and the claim was therefore “filed” on the date that the taxpayer submitted a letter requesting a refund). Accordingly, all the requirements of MCL 205.30 were satisfied on August 25, 2006, and pursuant to MCL 205.30(3), interest began accruing on the refund 45 days later, on October 9, 2006. V CONCLUSION We hold that, in order to satisfy the requirements of MCL 205.30 and trigger the 45-day waiting period before interest begins to accrue on a tax return, a taxpayer must (1) pay the disputed tax, (2) make a “claim” or “petition,” and (3) “file” the claim or petition. Although a “claim” or “petition” need not take any specific form, it must clearly demand, request, or assert a right to a refund. In order to “file” the claim or petition, a taxpayer must submit the claim to the Treasury, thereby providing the Treasury with adequate notice of the taxpayer’s claim. Because the Court of Appeals erroneously concluded that plaintiff did not satisfy the requirements of MCL 205.30 until it filed its complaint in the Court of Claims on December 13, 2006, we reverse the judgment of the Court of Appeals in part and instead hold that plaintiff satisfied all of the statutory requirements on August 25, 2006. We remand to the trial court for further consideration of the attorney-fee issue. We do not retain jurisdiction. Kelly, Zahra, and McCormack, JJ., concurred with Cavanagh, J. The August 3, 2005 Audit Determination Letter stated: Michigan Department of Treasury!,] Audit Determination Letter!,] Single Business Tax!,] Taxpayer Name: FORD MOTOR COMPANY!,] Account No. 380549190!,] Audit Determination!,] Audit Period: 12/09/97 to 12/30/01!.] Net Tax Due $19,742,347!.] Interest 1,641,958[.] Penalty 0[.] Total Amount Due 21,384,305!.] The above determination is subject to final review and approval by the Michigan Department of Treasury... Taxpayer_agrees with this determination. _ disagrees with this determination... Appeal Rights!.] If you disagree with this deficiency, please wait until you receive a notice of ‘intent to assess’ additional tax, penalty or interest and then file your written request for an informal conference (within 30 days after receipt) to the Michigan Department of Treasury!.] The Legislature amended. MCL 205.30 in 2013 and 2014. 2013 PA 133; 2014 PA 3. Because the trial court decided the issues relevant to this case before the effective dates of the 2013 and 2014 amendments, we analyze this case under the statutory provisions in effect at the time of the trial court’s decision. As used in MCL 205.30(2), “petition” is followed by “for:” “A taxpayer who paid a tax that the taxpayer claims is not due may petition the department for refund . . ..” Emphasis added. The Audit Determination Letter in NSK Corp was the same as the Audit Determination Letter that the Treasury sent to plaintiff in this case. Although the taxpayer’s claim for a refund in NSK Corp included a demand for interest on the refund, we clarify that the statutory language only requires a “claim” or a “petition” for a refund; it does not require a taxpayer to also “claim” or “petition” for interest itself in order to satisfy the requirements in MCL 205.30. Plaintiff argues that the Treasury knew that plaintiff (1) had filed returns stating the amount of tax plaintiff believed was due, (2) did not treat the VEBA contributions as taxable, (3) disagreed with the Treasury’s conclusion that the VEBA contributions were taxable, and (4) had made previous payments sufficient to cover the disputed tax liability. Plaintiff also notes that, in a September 19, 2005 letter, the Treasury acknowledged that it was aware of plaintiffs disagreement with the tax assessment and argument regarding the VEBA contributions and encouraged plaintiff to pursue legal remedies. Specifically, under MCL 205.22(2), in order to pursue an appeal to the Court of Claims, plaintiff was required to “first pay the tax, including any applicable penalties and interest, under protest and claim, a refund as part of the appeal.” MCL 205.22(2) (emphasis added). The dissent accurately concludes that MCL 205.22(2) imposes two requirements that a taxpayer must satisfy in order to appeal a tax assessment in the Court of Claims: a taxpayer must pay the disputed tax under protest and claim a refund as part of the appeal to the Court of Claims. The dissent also correctly concludes that a taxpayer may pay the disputed tax “under protest” and “claim a refund as part of the appeal” in a single action. In fact, the dissent expressly agrees that plaintiff could satisfy both the requirement to pay under protest and the requirement to claim a refund in a single letter. Thus, our only disagreement with the dissent arises from our interpretation of plaintiffs August 25, 2006 letter: we interpret plaintiffs August 25, 2006 letter to do precisely what the dissent correctly recognizes is permissible. First, plaintiff informed the Treasury that it was paying the disputed VEBA contribution tax assessment “under protest,” a conclusion with which the dissent agrees. Second, we conclude that by informing the Treasury that plaintiff would file an action in the Court of Claims and referring to MCL 205.22, plaintiff asserted a right to a refund, which, as previously discussed, constitutes a claim or petition for a refund under MCL 205.30. Accordingly, contrary to the dissent’s contention, we do not merely treat plaintiff “as if” it made a claim or petition in its August 25,2006 letter — plaintiff actually did so by affirmatively notifying the Treasury that it was asserting its right to a refund by undertaking formal legal action. The fact that plaintiff again claimed a refund in its complaint does not preclude the August 25, 2006 letter from constituting a claim or petition for a refund as required by MCL 205.30. To conclude otherwise would require a taxpayer to use the magic words “refund” and “claim” or “petition” in order to satisfy MCL 205.30, which would be inconsistent with our prior conclusion that a taxpayer’s “claim” or “petition” need not take any specific form, a conclusion with which the dissent agrees.
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ZAHRA, J. This case requires us to interpret the stepparent adoption statute, MCL 710.51(6), which allows the spouse of “the parent having legal custody of the child” to petition to adopt that child as long as the court orders the termination of the other parent’s parental rights in a manner consistent with the criteria provided in MCL 710.51(6)(a) and (b). Applying the stepparent adoption statute to the instant case, the circuit court terminated respondent-father’s parental rights to the minor child and also allowed petitioner-stepfather — who is married to petitioner-mother — to adopt the minor child. The Court of Appeals reversed, reasoning that because respondent and petitioner-mother shared joint legal custody of the child, petitioner-mother was not “the parent having legal custody of the child” as required by the stepparent adoption statute. We affirm the judgment of the Court of Appeals because when the role of the phrase “the parent having legal custody” within the statutory scheme is considered, it is clear that the Legislature intended that phrase to refer to the parent with sole legal custody. We also reject petitioners’ argument, made for the first time on appeal before this Court, that petitioner-mother is the sole parent having legal custody of the child because she is the parent with legally sanctioned physical custody of the child. Michigan has long recognized that the concepts of legal custody and physical custody are distinct and allocable between parents. This has been so since before the enactment of MCL 710.51(6). Petitioner-mother has always been free to seek modification of the custody arrangement under MCL 722.27. If on remand petitioner-mother secures sole legal custody of the child, then petitioners may proceed with stepparent adoption under MCL 710.51(6). I. FACTS AND PROCEEDINGS Respondent and petitioner-mother were married in 2003. The couple had one child during their marriage, AJR, but divorced in 2009. The divorce judgment awarded custody of AJR as follows: The parties shall share joint legal custody and [petitioner-mother] shall have the physical custody of the minor child.... The divorce judgment also placed support obligations on respondent and provided that he would be given reasonable visitation with the child. Petitioner-mother married petitioner-stepfather in June 2010. The couple lived together with AJR as a family. In May 2012, petitioners sought to terminate respondent’s parental rights to allow petitioner-stepfather to adopt AJR. Petitioners filed a petition for stepparent adoption consistent with MCL 710.51(6)(a) and (b), alleging that “[t]he noncustodial parent has failed to provide support or comply with a support order and failed to visit or contact the adoptee for a period of 2 years or more.” They also filed a supplemental petition and affidavit to terminate the parental rights of the noncustodial parent, alleging that “[a] support order has been entered and the noncustodial parent has failed to substantially comply with the order for a period of two years or more before the petition for adoption was filed.” Following a two-day evidentiary hearing, the circuit court issued an opinion and order granting the petition and terminating respondent’s parental rights pursuant to MCL 710.51(6). The circuit court found that respondent had substantially failed to provide support for the child for the two years preceding the filing of the petition and that respondent had substantially failed to visit or communicate with the child during the same period. Respondent appealed by right in the Court of Appeals, which reversed the circuit court’s order terminating his parental rights. The Court of Appeals concluded that “because [respondent] and the mother had joint legal custody over the child and the statute only acts to terminate the rights of those parents who do not have legal custody, [respondent’s] rights were improperly terminated.” The Court of Appeals held that the language “if the parent having legal custody of the child” in the statute must “be construed as requiring the parent initiating termination proceedings to be the only parent having legal custody.” The Court of Appeals concluded that “[t]he rights of a parent who maintains joint legal custody are not properly terminated under MCL 710.51(6).” The Court of Appeals observed that the articles “the” and “a” have different meanings and that the Legislature uses the term “the,” rather than “a” or “an,” to refer to something particular. The Court of Appeals also reasoned that, when possible, every word and phrase in a statutory provision must be given effect and that a court “should not ignore the omission of a term from one section of a statute when that term is used in another section of the statute.” 7The Court of Appeals applied this principle, stating: Notably, the preceding subsection in the statute, MCL 710.51(5), uses the phrase “a parent having legal custody” to refer to whom that particular subsection applies. Contrastingly, MCL 710.51(6) refers to “the parent having legal custody.” We presume that the Legislature intended to use the more general phrase “a parent” to refer to either of the child’s parents in MCL 710.51(5) and that the omission of a general article in MCL 710.51(6) was intentional.[ ] It being undisputed that the divorce judgment provided that respondent and petitioner-mother would maintain joint legal custody of AJR, the Court of Appeals concluded that MCL 710.51(6), which requires that the petitioning parent be “the parent having legal custody,” was inapplicable in the instant case. This Court granted leave to appeal to determine whether MCL 710.51(6) necessarily refers to “the” sole parent with legal custody and whether the term “legal custody” in the statute is synonymous with the concept of joint custody in § 6a(7)(b) of the Child Custody Act, MCL 722.26a(7)(b), under which the parents “share decision-making authority as to the important decisions affecting the welfare of the child,” and also to explore the remedies, if any, available to the petitioners in this case if the Court of Appeals had not erred in interpreting MCL 710.5K6). II. STANDARD OF REVIEW Whether the application of the stepparent adoption provision is limited to situations in which one parent has sole legal custody of the child is a question of statutory interpretation, which we review de novo. III. ANALYSIS A. INTERPRETING MCL 710.51(6) As always, the objective of statutory interpretation “is to give effect to the Legislature’s intent,” and “[t]o ascertain that intent, this Court begins with the statute’s language.”* “When that language is unambiguous, no further judicial construction is required or permitted, because the Legislature is presumed to have intended the meaning it plainly expressed. ” Moreover, “[w]hen interpreting a statute, courts must ascertain the legislative intent that may reasonably be inferred from the words expressed in the statute,” which “requires courts to consider the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme.” MCL 710.51(6) provides for the termination of parental rights in the context of stepparent adoption: (6) If the parents of a child are divorced, or if the parents are unmarried but the father has acknowledged paternity or is a putative father who meets the conditions in [MCL 710.39], and if the parent having legal custody of the child subsequently marries and that parent’s spouse petitions to adopt the child, the court upon notice and hearing may issue an order terminating the rights of the other parent if both of the following occur: (a) The other parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition. (b) The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition. Accordingly, a court may only terminate parental rights under the stepparent adoption statute after concluding that both Subdivision (a) and (b) are satisfied, and also that the conditions provided in the preceding paragraph are satisfied. The phrase “the parent having legal custody of the child” in the preceding paragraph of the stepparent adoption statute is the focus of this case. Petitioners maintain that the Court of Appeals erred by interpreting the phrase “the parent having legal custody of the child” as necessarily referring to the sole parent with legal custody. We disagree because when the role of the phrase “the parent having legal custody” within the statutory scheme is considered, it is clear that the Legislature intended that phrase to refer to the parent with sole legal custody. When interpreting the phrase “the parent having legal custody,” we may consider the role of this phrase within the statutory scheme. Under the Michigan Adoption Code, two provisions are particularly relevant when considering the process by which a stepparent may adopt a child: MCL 710.51 and MCL 710.43. There are two possible avenues pursuant to MCL 710.51 for a petitioning stepparent to adopt a child: adoption by parental consent under MCL 710.51(1) and the procedure for stepparent adoption provided in MCL 710.51(6). MCL 710.43 provides the rules regarding the consent required under MCL 710.51(1) for adoption by parental consent, and MCL 710.43(7) specifically addresses the requirements for stepparent adoption by parental consent. MCL 710.43(7) provides: If the petitioner for adoption is married to the parent having legal custody of the child and that parent has joined the petitioner in filing the petition for adoption, that parent shall not execute a consent to the adoption. The consent of the parent who does not have legal custody of the child and whose parental rights have not been terminated shall be executed before the court may enter an order of adoption under [MCL 710.56], [Emphasis added.] Thus, in order for a petitioning stepparent to adopt a child by parental consent, the parent without legal custody must consent. By directly contrasting the phrases “the parent having legal custody” and “the parent who does not have legal custody,” we conclude that the Legislature intended “the parent having legal custody” to mean the parent with sole legal custody. Conversely, when consent from a parent without legal custody has not or cannot be obtained, MCL 710.51(6) provides an alternative procedure that allows the spouse of “the parent having legal custody of the child” to petition the court to involuntarily terminate the other parent’s parental rights, if the statutory requirements have been satisfied, so that the child may then be adopted by the spouse of the parent with legal custody. Importantly, the phrase “the parent having legal custody” appears in both MCL 710.51(6) and MCL 710.43(7). Because the Legislature chose to use the same phrase in MCL 710.51(6), which like MCL 710.43(7) also addresses stepparent adoption, we conclude that the Legislature intended for that phrase to have the same meaning. In other words, because the Legislature expressly contrasted the phrase “the parent having legal custody” with the phrase “the parent who does not have legal custody” in MCL 710.43(7), the phrase “the parent having legal custody” within MCL 710.51(6) also was intended to be contrasted with the parent not having legal custody. Therefore, the term “other parent” in MCL 710.51(6) refers to the parent not having legal custody pursuant to the distinction made in MCL 710.43(7). Moreover, the plain language of the statute does not otherwise indicate that the phrase “the parent having legal custody” should be interpreted differently in the context of MCL 710.51(6) than it is in MCL 710.43(7). Therefore, when consent to stepparent adoption has not or cannot be obtained, petitioners must follow the statutory procedures to obtain sole legal custody before seeking termination of the respondent-parent’s parental rights under MCL 710.51(6). For these reasons, we affirm the Court of Appeal’s conclusion that the phrase “the parent having legal custody” in MCL 710.51(6) is inapplicable to situations involving joint legal custody. Petitioners also invite this Court to reverse the Court of Appeals’ judgment by resorting to the absurd-results doctrine of statutory interpretation. Specifically, petitioners argue that the statutory construction of the Court of Appeals is absurd because, under that construction, stepparent adoptions will never be possible when the other parent has joint legal custody, even if that parent has failed to regularly support or maintain contact with the child for the period provided in MCL 710.51(6). But there is nothing absurd about limiting the application of MCL 710.51(6) exclusively to parents having sole legal custody. Contrary to petitioners’ con cern, a parent who shares joint legal custody is free to seek modification of that custody arrangement under MCL 722.27 and may proceed with stepparent adoption under MCL 710.51(6) after securing sole legal custody of the child. This result is akin to the scheme provided in the juvenile code, which in MCL 712A.19b(l) requires that a court “shall hold a hearing to determine if the parental rights to a child should be terminated and, if all parental rights to the child are terminated, the child placed in permanent custody of the court.” The hearing required under MCL 712A.19b(l) is a separate proceeding from a review hearing under MCL 712A.19 or a permanency planning hearing under MCL 712A.19a. We do not question the Legislature’s wisdom in enacting MCL 710.51(6). While it might be debatable whether the policy behind the statute is a good one, its plain application to the facts of this case does not produce an absurd result. Simply put, there is nothing absurd about requiring a separate proceeding for the sake of modifying a preexisting custodial arrangement falling outside the scope of the stepparent adoption statute. Having concluded that the stepparent adoption statute applies only to those situations involving a sole legal custodian, we address petitioners’ alternative argument, which they raise for the first time on appeal before this Court, that petitioner-mother is the sole parent having legal custody of AJR because she is the parent with “legally sanctioned physical custody of AJR.” Petitioners premise this argument on the notion that when the stepparent adoption statute was added in 1980 the term “legal custody” in what ultimately became MCL 710.51(6) meant “a legal right to physical custody.” They argue that despite the fact that the divorce judgment granted joint legal custody to respondent and petitioner-mother, the divorce judgment also granted sole physical custody to petitioner-mother, and therefore, petitioner-mother is “the parent having legal custody” of AJR. The term “legal custody” is not defined in the Michigan Adoption Code. An undefined term must be accorded its plain and ordinary meaning, except when the term has acquired a unique legal meaning, in which case the term “ ‘shall be construed and understood according to such peculiar and appropriate meaning.’ ” The term legal custody has acquired a unique legal meaning in Michigan law, and because of this, we interpret the term in accordance with its meaning in legal dictionaries and at common law. The ninth edition of Black’s Law Dictionary (published in 2009) defines the term “custody” in the family-law context as [t]he care, control, and maintenance of a child awarded hy a court to a responsible adult. • Custody involves legal custody (decision-making authority) and physical custody (caregiving authority), and an award of custody [usually] grants both rights[ ] This Court recently discussed the distinction between physical custody and legal custody, albeit under the Child Custody Act. In Grange Ins Co of Mich v Lawrence we noted that “[p]hysical custody pertains to where the child shall physically ‘reside,’ whereas legal custody is understood to mean decision-making authority as to important decisions affecting the child’s welfare.” Neither this Court’s decision in Grange nor the ninth edition of Black’s Law Dictionary supports petitioners’ interpretation of the term “legal custody.” Nonetheless, petitioners’ interpretation is not without support. Our inquiry is the intent of the Legislature that in 1980 added the provision that ultimately became the statute before us, MCL 710.51(6). To determine the Legislature’s intent in 1980, we refer to a contemporaneous legal dictionary. The prominent legal dictionary in use in 1980 — the fifth edition of Black’s Law Dictionary (published in 1979) — did not expressly acknowledge the distinction between “legal custody” and “physical custody” in the family-law context. Rather, the fifth edition of Black’s Law Dictionary defined “custody of children” as “[t]he care, eon trol and maintenance of a child which may be awarded by a court to one of the parents as in a divorce or separation proceeding.” This definition — and the lack of a definition of “joint custody” in the fifth edition— reflect the reality that in 1980 it was not unusual for one parent to come away from a divorce with sole physical and legal custody of a child. Although the legal dictionary contemporaneous with the statute arguably supports petitioners’ premise that “legal custody” included a right to physical custody in 1980, other factors militate against petitioners’ interpretation. While the term “custody” was and is often used to refer to the complete bundle of custodial rights (i.e., both physical and legal custody), petitioners’ theory relies on the meaning of “legal custody.” Insight into the meaning of the term “legal custody” can be found by review of a related statute — MCL 722.26a — which was added during the same legislative session in which MCL 710.51(6) was added. MCL 722.26a(7), a portion of the Child Custody Act concerning joint custody, provides: (7) As used in this section, “joint custody” means an order of the court in which 1 or both of the following is specified: (a) That the child shall reside alternately for specific periods with each of the parents. (b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child. Thus, the Legislature divided the concept of custody into two categories — custody in the sense of the child residing with a parent and custody in the sense of a parent having decision-making authority regarding the welfare of the child. Therefore, the joint-custody rules established by the Legislature in the same session in which the stepparent adoption statute was added directly contravene petitioners’ assertion that custody is an indivisible concept. A survey of Michigan caselaw further confirms that physical custody and legal custody were distinct concepts, allocable between parents, well before 1980. In Burkhardt v Burkhardt, a case decided by this Court in 1938, the circuit court modified its custody order to state that “[the father] shall have the legal custody and control of said minor child . . . but that said child shall be in the actual care and custody of [third parties who had contracted to care for the child]. . . .” In other words, the father in Burkhardt was awarded legal custody but not physical custody. Similarly, Foxall v Foxall, a 1947 decision of this Court, involved a 1946 custody order that also distinguished between legal custody and physical custody by providing that the legal custody of the children [would] remain in the friend of the court and their physical custody [would] remain with the father until the further order of the court, but upon the condition that the children remain at the home of their paternal grandmother under the present prevailing conditions.[ ] Additionally, Lustig v Lustig, a case decided by the Court of Appeals in 1980, involved a 1979 custody order that distinguished between legal custody and physical custody, providing “that legal custody of the minor children ... be awarded jointly to the parents, plaintiff and defendant herein,” and that “[pjhysical custody of [one of the children] was to alternate between plaintiff and defendant.” Finally, in Wilcox v Wilcox, a case decided by the Court of Appeals in 1980, the Court expressly recognized the distinction between legal custody and physical custody, stating, “There is a difference between joint legal custody, which is concerned with making decisions which significantly affect the life of a child, and joint physical custody, which is concerned with the child living with the parent.” Indeed, Burkhardt, Foxall, Lustig, and Wilcox illustrate that the concepts of legal custody and physical custody were divisible long before the enactment of MCL 710.51(6). We also find persuasive that the subsequent edition of Black’s Law Dictionary (the sixth and centennial edition) published 11 years after the fifth edition and 9 years after the enactment of the stepparent adoption statute, defines “joint custody” as involving both parents sharing responsibility and authority with respect to the children; it may involve joint “legal” custody and joint “physical” custody. Such includes physical sharing of child in addition to both parents participating in decisions affecting child’s life, e.g., education, medical problems, recreation, etc .. . .[ ] The definition of “joint legal custody” did not evolve into its contemporary understanding overnight, but it does seem quite clear, at least a posteriori, that many state courts during the 1980s either already recognized, as Michigan courts did, or increasingly began to embrace the above understanding of joint legal custody. Given that Michigan courts had acknowledged the concept of “joint legal custody” well before the enactment of MCL 722.26a(7), we find it entirely plausible that the Michigan Legislature had likewise embraced this understanding of joint legal custody when it added MCL 710.51(6). In sum, petitioners simply fail to demonstrate that “legal custody” ever meant a legal right to physical custody or that the concepts of physical custody and legal custody are or ever were inextricably merged. Rather, pre-1980 evidence demonstrates that legal custody and physical custody were separate concepts allocable between parents long before the enactment of the stepparent adoption statute. Even before 1980, a parent could have had legal custody without having the legal right to physical custody. In light of these conclusions, and because the divorce judgment clearly awarded joint legal custody to respondent and petitioner-mother, petitioner-mother was not “the parent having legal custody,” and therefore, the stepparent adoption statute did not apply in the instant case. B. REMEDY In light of our holdings, we now address “what, if any, remedy is available to the petitioners in this case that is consistent with the general purposes of the Adoption Code, MCL 710.21a.” Under the Child Custody Act, the court may “[m]odify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age . . . .” Thus, petitioner-mother has always been free to seek modification of the custody arrangement so that she is the parent having sole legal custody of AJR. If she does so and her request is granted, petitioners may proceed with stepparent adoption under MCL 710.51(6). Requiring such action is not unduly burdensome and is consistent with the general purposes of the Michigan Adoption Code, which exists not only to “safeguard and promote the best interests of each adoptee,” but also to “protect the rights of all parties concerned.” This approach is also consistent with the general presumption followed by Michigan courts that, when a third party such as petitioner-stepfather is involved, a child’s best interests are served by awarding custody to the natural parent or parents. Consequently, petitioners have an avenue by which to pursue stepparent adoption, while at the same time respondent may defend his custodial rights to the extent provided by law. This is the legal framework provided by the Legislature; to the extent that petitioners argue that this remedy is unrealistic or practically unavailable, we disagree. However, we note that to the extent that petitioners are dissatisfied with the remedy available to them in light of their circumstances, they may seek recourse from the Legislature. IV CONCLUSION Because the express language of MCL 750.51(6) provides that stepparent adoption under the statute is only available to the spouse of “the parent having legal custody of the child,” meaning the parent with sole legal custody, the statute does not apply to situations like the instant case in which the parents share joint legal custody of the child. Therefore, we affirm the judgment of the Court of Appeals. Petitioners are free to seek modification of the custody arrangement under MCL 722.27. We do not retain jurisdiction. Young, C.J., and Cavanagh, Markman, Kelly, McCormack, and Viviano, JJ., concurred with Zahra, J. In re AJR, 300 Mich App 597; 834 NW2d 904 (2013). Id. at 600. Id. at 602. Id. Id. at 602-603, citing Paige v Sterling Hts, 476 Mich 495, 509-510; 720 NW2d 219 (2006) (holding that “the” used in front of “proximate cause” in the statute before the Court referred to the sole proximate cause, thereby clarifying that the phrase “the proximate cause” exclusively contemplates one cause). AJR, 300 Mich App at 603. Id., citing Farrington v Total Petroleum, Inc., 442 Mich 201, 210; 501 NW2d 76 (1993), and Robinson v City of Lansing, 486 Mich 1, 14 n 13; 782 NW2d 171 (2010) (stating that reviewing courts “must follow these distinctions between ‘a’ and ‘the’ because the Legislature has directed that ‘[a]U words and phrases shall be construed and understood according to the common and approved usage of the language’ ”), quoting MCL 8.3a (alteration in original). Id. at 603-604. In re AJR, 495 Mich 875, 875-876 (2013). In re MCI Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999). People v Stone, 463 Mich 558, 562; 621 NW2d 702 (2001). id. Fradco, Inc v Dep’t of Treasury, 495 Mich 104, 112; 845 NW2d 81 (2014) (quotation marks and citations omitted). In re Hill, 221 Mich App 683, 692; 562 NW 2d 254 (1997); see also ISB Sales Co v Dave’s Cakes, 258 Mich App 520, 529; 672 NW2d 181 (2003) (reasoning that a proviso preceded by “if” “restricts the operative effect of statutory language to less than what its scope of operation would be otherwise”). Fradco, 495 Mich at 112. See Robinson, 486 Mich at 16 (stating that “the Legislature is not required to be overly repetitive in its choice of language”). Thus, it was not necessary for the Legislature to again directly contrast “the parent having legal custody” with “the parent who does not have legal custody” in MCL 710.51(6). Our conclusion that the Legislature intended the phrase “the parent having legal custody” to refer to the parent with sole legal custody is also consistent with prior case law recognizing that “the” and “a” have distinctive meanings where the Legislature has qualified the same word with the definite article “the” in one instance and the indefinite article “a” in another instance. See, e.g., Robinson, 486 Mich at 14-15. See Part III-B of this opinion. To the extent that trial courts in this state have adopted a practice that allows for stepparent adoption in a manner that we now recognize as being contrary to the statute, this decision guides trial courts on the statute’s proper scope and applicability. As this opinion makes clear, no longer ought the statute be employed when the parent initiating stepparent adoption proceedings is not the parent with sole legal custody of the child. See note 29 of this opinion. Ford Motor Co v City of Woodhaven, 475 Mich 425, 439; 716 NW2d 247 (2006), quoting MCL 8.3a. Id. at 439-440 (stating that “because ‘mutual mistake of fact’ is a legal term, resort to a legal dictionary to determine its meaning may also be helpful”). Black’s Law Dictionary (9th ed), p 441. Grange Ins Co of Mich v Lawrence, 494 Mich 475, 511; 835 NW2d 363 (2013) (comparing MCL 722.26a(7)(a) (physical custody) with MCL 722.26a(7)(b) (legal custody)). See note 29 of this opinion. The fifth edition of Black’s Law Dictionary discussed the term “custody” as a broad concept, defining it as “[t]he care and control of a thing or person,” and noted that “[t]he term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession.” Black’s Law Dictionary (5th ed), p 347. “Legal custody” was defined, generally, in the fifth edition as “ [Restraint of or responsibility for a person according to law, such as a guardian’s authority over the person or property, or both, of his ward. See also Commitment; Custody; Guardian; Ward.” Id. at 804. Id. at 347. Black’s Law Dictionary (9th ed), p 442, defines “joint custody” in part as “[a]n arrangement by which both parents share the responsibility for and authority over the child at all times, although one parent may exercise primary physical custody.” 1980 PA 509 added the stepparent adoption provision to MCL 710.51 as Subsection (5), effective January 26, 1981. It postdated MCL 722.26a, added by 1980 PA 434 (effective January 14,1981), by almost two weeks. MCL 710.51 was subsequently amended by 1982 PA 72 to renumber Subsection (5) as Subsection (6) and add the language “or if the parents are unmarried but the father has acknowledged paternity or is a putative father who meets the conditions in [MCL 710.39].” Burkhardt v Burkhardt, 286 Mich 526, 531; 282 NW 231 (1938) (quotation marks omitted). Foxall v Foxall, 319 Mich 461; 29 NW2d 912 (1947). Lustig v Lustig, 99 Mich App 716, 719; 299 NW2d 375 (1980). Wilcox v Wilcox, 100 Mich App 75, 84; 298 NW2d 667 (1980), vacated and remanded 411 Mich 856 (1981) (vacated and remanded for reconsideration in light of 1980 PA 434, which added MCL 722.26a). See also In re Brown, 22 Mich App 459, 461; 177 NW2d 732 (1970) (discussing a custody order releasing “both physical and legal custody of the children” to the mother). Black’s Law Dictionary (6th ed), p 385 (citation omitted). Indeed, we note that the preface of this edition appreciates that “[n]early every area of the law has undergone change and development since publication of the Fifth Edition in 1979” and that “[t]he vocabulary of the law has likewise continued to change and expand to keep pace.” Id. at iii. AJR, 495 Mich at 876. MCL 722.27(l)(c). See MCL 710.21a(b). See, e.g., Hunter v Hunter, 484 Mich 247, 279; 771 NW2d 694 (2009) (holding that “the established custodial presumption in MCL 722.27(l)(e) must yield to the parental presumption in MCL 722.25(1)”). MCL 722.25(1) provides: If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence. See MCL 722.27(l)(c) and MCR 3.977 (termination of parental rights).
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CAVANAGH, J. This case requires us to determine whether the imposition of an increased Crime Victim’s Rights Fund assessment violates the Ex Post Facto Clauses of the Michigan and United States Constitu tions. US Const, art I, § 10; Const 1963, art 1, § 10. We hold that it does not. Specifically, we hold that the trial court’s order requiring defendant to pay a $130 crime victim’s rights assessment does not violate the bar on ex post facto laws. Accordingly, we affirm the judgment of the Court of Appeals. I FACTS AND PROCEDURAL HISTORY On March 18, 2010, defendant robbed a bank in South-field, Michigan. He was arrested six days later, and heroin and crack cocaine were found on his person at the time of the arrest. Defendant was charged with and convicted of bank robbeiy and two counts of possessing less than 25 grams of a controlled substance. At the time defendant committed the offenses, MCL 780.905 required that all defendants found guilty of a felony pay a $60 crime victim’s rights assessment. 1996 PA 344. The statute was amended effective December 16, 2010, however, to raise the crime victim’s rights assessment for convicted felons to $130. 2010 PA 281. Defendant was sentenced on February 15, 2011, and was ordered to pay $130 for the crime victim’s rights assessment. Defendant appealed and claimed, among other things, that the increased assessment was an increased punishment in violation of the Ex Post Facto Clauses of the Michigan and United States Constitutions. The Court of Appeals affirmed the $130 assessment, holding that it is not punitive, and, therefore, does not violate the bar on ex post facto laws. People v Earl, 297 Mich App 104, 114; 822 NW2d 271 (2012). Defendant sought leave to appeal in this Court, which we granted. People v Earl, 493 Mich 945 (2013). II. STANDARD OF REVIEW “Whether a statutory scheme is civil or criminal is . .. a question of statutory construction.” Smith v Doe, 538 US 84, 92; 123 S Ct 1140; 155 L Ed 2d 164 (2003) (citation and quotation marks omitted). The interpretation of a statute is a question of law that this Court reviews de novo. Herman v Berrien Co, 481 Mich 352, 358; 750 NW2d 570 (2008). III. ANALYSIS A. THE CRIME VICTIM’S RIGHTS FUND The Crime Victim’s Rights Fund is contained within the Crime Victim’s Rights Act, MCL 780.751 et seq. The Crime Victim’s Rights Act was enacted in response to the growing recognition of the concerns regarding disproportionate treatment of crime victims and a perceived insensitivity to their plight. People v Grant, 455 Mich 221, 239-240; 565 NW2d 389 (1997). In 1989, the Crime Victim Services Commission was established as part of the Crime Victim’s Rights Act and was given the following duties: (a) Investigate and determine the amount of revenue needed to pay for crime victim’s rights services. (b) Investigate and determine an appropriate assessment amount to be imposed against convicted criminal defendants and juveniles for whom the probate court or the family division of circuit court enters orders of disposition for juvenile offenses to pay for crime victim’s rights services. (c) By December 31 of each year, report to the governor, the secretary of the senate, the clerk of the house of representatives, and the department the commission’s findings and recommendations under this section. [MCL 780.903.] The Legislature established the Crime Victim’s Rights Fund to pay for crime victim’s rights services. MCL 780.904(1). The Crime Victim’s Rights Fund is funded by the crime victim’s rights assessment. MCL 780.904. Currently, a convicted felon is assessed $130, those convicted of misdemeanors are assessed $75, and juveniles are assessed $25 when the court enters an order of disposition for a juvenile offense. MCL 780.905(1) and (3). Money remaining in the Crime Victim’s Rights Fund after victim’s services have been paid for may be used for crime victim compensation. MCL 780.904(2). See, also, MCL 18.351 to MCL 18.368. Excess revenue that has not been used for crime victim compensation may be used to establish and maintain a statewide trauma system. MCL 780.904(2). B. EX POST FACTO CLAUSE The Ex Post Facto Clauses of the United States and Michigan Constitutions bar the retroactive application of a law if the law: (1) punishes an act that was innocent when the act was committed; (2) makes an act a more serious criminal offense; (3) increases the punishment for a crime; or (4) allows the prosecution to convict on less evidence. Calder v Bull, 3 US (3 Dall) 386,390; 1 L Ed 648 (1798). At issue in this case is whether an increase in the crime victim’s rights assessment increases the punishment for a crime. Determining whether a law violates the Ex Post Facto Clause is a two-step inquiry. Smith, 538 US at 92. The court must begin by determining whether the Legislature intended the statute as a criminal punishment or a civil remedy. Id. If the Legislature’s intention was to impose a criminal punishment, retroactive application of the law violates the Ex Post Facto Clause and the analysis is over. Id. However, if the Legislature intended to enact a civil remedy, the court must also ascertain whether “the statutory scheme is so punitive either in purpose or effect as to negate [the State’s] intention to deem it civil.” Id. (citations and quotation marks omitted). Stated another way, even if the text of the statute indicates the Legislature’s intent to impose a civil remedy, we must determine whether the statute nevertheless functions as a criminal punishment in application. Because we conclude that the Legislature did not intend the crime victim’s rights assessment to be a criminal punishment, we will address both issues. C. WHETHER THE LEGISLATURE INTENDED THE CRIME VICTIM’S RIGHTS ASSESSMENT TO BE PUNITIVE When determining whether the Legislature intended for a statutory scheme to impose a civil remedy or a criminal punishment, a court must first consider the statute’s text and its structure. Smith, 538 US at 92. Specifically, a court must ask whether the Legislature, “indicated either expressly or impliedly a preference for one label or the other.” Hudson v United States, 522 US 93, 99; 118 S Ct 488; 139 L Ed 2d 450 (1997) (citation and quotation marks omitted). In considering whether a law is a criminal punishment, a court “generally bases its determination on the purpose of the statute.” Trop v Dulles, 356 US 86, 96; 78 S Ct 590; 2 L Ed 2d 630 (1958). “If the statute imposes a disability for the purposes of punishment — that is, to reprimand the wrongdoer, to deter others, etc., it has been considered penal.” Id. However, a statute is intended as a civil remedy if it imposes a disability to further a legitimate governmental purpose. Id. “The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect. The controlling nature of such statutes normally depends on the evident purpose of the legislature.” Id. When giving effect to the Legislature’s intent, we first focus on the statute’s plain language. People v Cole, 491 Mich 325, 330; 817 NW2d 497 (2012) (citations and quotation marks omitted). Cole, 491 Mich at 336-337, concluded that imposing lifetime electronic monitoring for a conviction of first or second-degree criminal sexual conduct constituted a criminal punishment. In support of that conclusion, Cole noted that the Legislature included monitoring as part of the sentence. Id. at 336 (“The use of the directive ‘shall sentence’ indicated that the Legislature intended to make lifetime electronic monitoring part of the sentence itself.”) (emphasis added). While the crime victim’s rights assessment is imposed at the time of sentencing, MCL 769.1k(1)(ic), in contrast to Cole, the Legislature did not expressly manifest an explicit intent to make the assessment part of the sentence itself. Rather, the Crime Victim’s Rights Act statutory scheme leads to the opposite conclusion — that the crime victim’s rights assessment does not have a label, function, or purpose that is consistent with a criminal sentence or penalty. Specifically, nothing on the face of the Crime Victim’s Rights Act expressly indicates that the Legislature intended the crime victim’s rights assessment to be a criminal punishment. However, the use of the label “assessment,” as opposed to “fine” or “penalty,” is instructive. The Legislature is aware that a fine is generally a criminal punishment. Indeed, the Michigan Penal Code defines “crime” as an act or omission forbidden by law that is punishable upon conviction by a “[f]ine not designated a civil fine.” MCL 750.5. Accordingly the Legislature’s decision to use the term “assess” as opposed to “fine” or another similar term within the Crime Victim’s Rights Act implies a nonpunitive intent. While labels alone do not determine whether a statutory provision is a criminal punishment or civil remedy, Smith, 538 US at 94 (“[t]he location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one”), the function of the crime victim’s rights assessment is true to its label as an assessment. “Assessment” is defined as “the action or instance of assessing,” and “assess” is defined as “to impose according to an established rate.” Merriam Webster’s Collegiate Dictionary (8th ed). On the other hand, a criminal fine is generally imposed as a punishment in response to criminal conduct. See Southern Union Co v United States, 567 US_,_; 132 S Ct 2344, 2350; 183 L Ed 2d 318 (2012) (explaining that “[cjriminal fines . .. are penalties inflicted by the sovereign for the commission of offenses”) (emphasis added). Therefore, the terms “fine” and “assessment” have different and distinct meanings: criminal fines are generally responsive to the conduct which they intend to punish, while assessments are imposed in accordance with a predetermined flat rate. Specifically, the crime victim’s rights assessment levies a flat fee against a convicted criminal defendant, irrespective of the number or severity of the charges. The monetary value of the assessment depends only on whether the crimes constituted a misdemeanor or a felony, and whether the defendant is a juvenile. MCL 780.905. Moreover, MCL 780.905(2) imposes only one assessment per criminal case, contrary to the manner in which punitive fines are usually imposed, i.e., where the amount of the fine generally depends on the specific facts of the case. Southern Union Co, 567 US at_; 132 S Ct at 2350. Therefore the crime victim’s rights assessment does not have the label of, nor does it function like, a criminal punishment. Additionally, the crime victim’s rights assessment has a nonpunitive purpose: to provide funding for crime victim’s services. The Legislature made it clear that funding crime victim’s services is the primary goal of the Crime Victim’s Rights Act. Specifically, MCL 780.907(2), which governs the disbursement of the Crime Victim’s Rights Fund monies, states that the Department of Community Health “shall make the implementation of crime victim’s rights” a priority. Further, MCL 780.908, which governs the use of disbursed funds, requires a court, department, or local agency receiving a distribution under the act to use the distribution to “maintain or enhance crime victim’s rights services.” Only after the crime victim’s rights services have been paid for may money from the fund be used for other purposes under the Crime Victim’s Rights Act. See MCL 780.904(2) (implying that the fund first must disburse the amount that the Crime Victims’ Services Commission determined was necessary to fund crime victim’s services). Although the crime victim’s rights assessment places a burden on convicted criminal defendants, the assessment’s purpose is not to punish but to fund programs that support crime victims. See Trop, 356 US at 96 (explaining that while a statute may have both penal and nonpenal attributes, the “controlling nature” depends on the Legislature’s purpose). As the Legislature envisioned, the crime victim’s rights assessment primarily provides funding for crime victim’s services. Included among the services supported by the fund are “comprehensive mandatory rights of crime victims to participate in and be notified of all pertinent proceedings in the criminal justice process, compensation for crime related losses, and training of advocates to better assist victims.” Michigan Department of Community Health, Crime Victims Services Commission Annual Report FY 2012 (2012), p 5. The crime victim’s rights assessment, therefore, funds a variety of programs that benefit the health and safety of crime victims and other community members. Finally, more generally, the crime victim’s rights assessment is an exercise of the Legislature’s power to protect the health and safety of Michigan citizens, indicating that it is a civil remedy. In this regard we find the facts of Smith instructive. Smith, 538 US at 93, considered whether the Alaskan Sex Offender Registry Act imposes a criminal punishment or a civil remedy. The United States Supreme Court held that the Alaskan Legislature expressed a civil objective in the act itself, explaining that “ ‘[n]othing on the face of the statute suggests that the legislature sought to create anything other than a civil. . . scheme designed to protect the public from harm.’ ” Id., citing Kansas v Hendricks, 521 US 346, 361; 117 S Ct 2072; 138 L Ed 2d 501 (1997). The Court further explained that “where a legislative restriction ‘is an incident of the State’s power to protect the health and safety of its citizens/ it will be considered as ‘evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment.’ ” Smith, 538 US at 93-94, quoting Flemming v Nestor, 363 US 603, 616; 80 S Ct 1367; 4 L Ed 2d 1435 (1960). The Court also determined that the goal was “plainly more remedial than punitive” and “even if the objective of the Act is consistent with the purposes of the Alaska criminal justice system, the State’s pursuit of it in a regulatory scheme does not make the objective punitive.” Smith, 538 US at 94 (citations and quotation marks omitted). Like Smith’s consideration of the Alaskan Legislature’s purpose, we conclude that the Michigan Legislature’s goal in crafting the Crime Victim’s Rights Act was to promote public safety and welfare by providing notification and support services to crime victims. And, even if the assessment in some ways resembles a criminal fine, as Smith explained, the Crime Victim’s Rights Act’s regulatory purpose to protect the health and safety of Michigan crime victims controls over any punitive effect the act may otherwise have. Therefore, we hold that the Legislature intended the crime victim’s rights assessment to be a civil remedy. D. WHETHER THE CRIME VICTIM’S RIGHTS ASSESSMENT IS PUNITIVE IN PURPOSE OR EFFECT Because we conclude that the Legislature intended that the crime victim’s rights assessment be civil in nature, we must determine whether it is nevertheless “so punitive either in purpose or effect as to negate the State’s intention to deem it civil.” Smith, 538 US at 92 (citations and quotation marks omitted). When analyzing whether an act has the purpose or effect of being punitive, courts consider seven factors noted in Kennedy v Mendoza-Martinez, 372 US 144, 168-169; 83 S Ct 554; 9 L Ed 2d 664 (1963). Smith, 538 US at 97. The factors as considered in Mendoza-Martinez are: [1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment — retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned. [Mendoza-Martinez, 372 US at 168-169.] The factors are “neither exhaustive nor dispositive . . . but useful guideposts.” Id. (citations and quotation marks omitted). Further, courts will “reject the legislature’s manifest intent [to impose a civil remedy] only where a party challenging the statute provides the clearest proof that the statutory scheme is so punitive either in purpose or effect to negate the . . . intention to deem it civil.” Hendricks, 521 US at 361 (citations and quotation marks omitted). See, also, Smith, 538 US at 105. Turning to the Mendoza-Martinez factors, the first factor weighs against finding a punitive purpose or effect because the crime victim’s rights assessment does not impose an affirmative disability or restraint. The relevant inquiry when determining whether a law imposes an affirmative disability or restraint is “how the effects of the [a]ct are felt by those subject to it.” Smith, 538 US at 99-100. “If the disability or restraint is minor and indirect, its effects are unlikely to be punitive.” Id. at 100. The assessment — a maximum of $130 — is “ ‘certainly nothing approaching the “infamous punishment” of imprisonment.’ ” Hudson, 522 US at 104, quoting Flemming, 363 US at 617. See, also, Smith, 538 US at 100 (“The act imposes no physical restraint, and so does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint.”) (citation omitted). Although the crime victim’s rights assessment might have some punitive effects on defendants, to hold that any governmental regulation that has indirect punitive effects constitutes a punishment would undermine the government’s ability to engage in effective regulation. Smith, 538 US at 102, quoting Hudson, 522 US at 105 (stating that “[t]o hold that the mere presence of a deterrent purpose renders such sanctions ‘criminal’ . . . would severely undermine the Government’s ability to engage in effective regulation,” and explaining that many government programs may deter crimes without imposing a punishment). Likewise, the second factor does not weigh in favor of the crime victim’s rights assessment being punitive in purpose or effect because the crime victim’s rights assessment has not been regarded in our history and traditions as a form of criminal punishment. While, as explained earlier, criminal fines have been regarded as punishment, the crime victim’s rights assessment does not share the characteristics of punitive fines because it imposes a flat fee irrespective of the underlying criminal conduct. Additionally, charging convicted criminal defendants a fee in order to pay for victim’s services is a relatively new concept that was first introduced by 1989 PA 196, which created the Criminal Assessments Commission, the predecessor of the Crime Victim Services Commission, MCL 780.901 to MCL 780.911. The general nature of the assessment’s legislative scheme has not changed and the aim of the assessment has always been to provide crime victim’s services. Therefore, the assessment is not now, nor has it ever been, regarded as a punishment. The fourth factor also fails to indicate a punitive purpose or effect because the crime victim’s rights assessment does not promote the traditional aims of punishment: retribution and deterrence. Hendricks, 521 US at 361-362. The assessment is not retributive because it does not consider the underlying factual nature of the crimes committed nor the number of convictions in determining the fee assessed. And, while the fees assessed under the act depend on the type of conviction or adjudication — i.e., felony, misdemeanor, or juvenile — that distinction is reasonably related to the goal of requiring convicted criminal defendants to bear the cost of crime victim’s services. Cf. Smith, 538 US at 102 (explaining that “[t]he broad categories [used to distinguish classes of offenders in Alaska’s Sex Offender Registration Act] and the corresponding length of the reporting requirement, are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective”). Nor can the act be said to promote the aims of deterrence, given that any deterrent effect is minimal. The small fee imposed by the assessment is unlikely to have a significant deterrent effect in light of the other potential consequences of criminal punishment, such as additional and greater fines and costs and incarceration. The sixth factor also does not imply a punitive purpose or effect because the crime victim’s rights assessment has a rational connection to a nonpunitive purpose. It is “most significant” that while the assessment might have some punitive aspects, it serves “important nonpunitive goals.” United States v Ursery, 518 US 267, 290; 116 S Ct 2135; 135 L Ed 2d 549 (1996). The notion of crime victim’s rights is of such importance that it is mandated by the Michigan Constitution. Const 1963, art 1, § 24. As previously discussed, the goal of the Crime Victim’s Rights Fund, and, therefore, of the crime victim’s rights assessment, is to fund crime victim’s services to help protect crime victim’s rights. Indeed, the Crime Victim’s Rights Fund provides funding for mandatory services required by art 1, § 24 of the Michigan Constitution and other services mandated by crime victim’s rights legislation. Any punitive effects are incidental to the goal of funding crime victim’s services, which is rationally connected to the assessment itself. The decision to place the burden of funding the Crime Victim’s Rights Fund on those who are convicted of a crime or adjudicated and on those juveniles who are responsible for a crime is simply a rational policy decision. Finally, the seventh factor also fails to show a punitive purpose or effect because the crime victim’s rights assessment is not excessive with respect to its purpose. As noted, each criminal defendant is subject to the assessment, irrespective of the number of convictions, and the cost imposed is relatively low in relation to other fines imposed within the criminal process. Although the increase in the assessment amount may impose a hardship on some, the assessment is set at the rate that the Crime Victims’ Services Commission determines is necessary to adequately fund the crime victim’s services programs. MCL 780.903(b). Because of the operation of inflation and other unavoidable cost increases, it is necessary that the amount of the crime victim’s rights assessment be periodically increased in order to fund the same level of services. The increased assessment, therefore, was not the result of a policy choice to impose a harsher punishment on defendants for their conduct, but instead was necessary in order to provide the services mandated under the Crime Victim’s Rights Act. The amount imposed ensures that there is adequate funding to provide the services required by law. There is no evidence that the assessment is excessive in relation to its purpose. Smith found the remaining two Mendoza-Martinez factors — the third, whether the crime victim’s rights assessment only comes into play on a finding of scienter and the fifth, whether the behavior the crime victim’s rights fund applies to is already a crime— generally unhelpful in its ex post facto analysis, and we agree. The underlying conduct of the defendant will always constitute a crime, but, as explained, the assessment is not responsive to that specific conduct. Instead, the assessment only applies a flat fee determined by the level of criminal conduct — i.e., whether the underlying conviction constitutes a misdemeanor or felony. Likewise, a finding of scienter is unhelpful because regardless whether the underlying conduct constitutes a strict liability felony (requiring no criminal intent) or a crime requiring the most depraved criminal intent (such as premeditated murder) the assessment treats the conduct exactly the same by imposing a flat fee. Therefore, both of these factors carry little weight in our analysis. Overall, when considering the Mendoza-Martinez factors as analyzed in Smith, there is not the “clearest proof” that the crime victim’s rights assessment is “so punitive either in purpose or effect as to negate [the State’s] intention to deem it civil.” Smith, 538 US at 92 (citations and quotation marks omitted). IV CONCLUSION We conclude that an increase in the crime victim’s rights assessment does not violate the bar on ex post facto laws because the Legislature’s intent in enacting the assessment was civil in nature. Additionally, the purpose and effect of the assessment is not so punitive as to negate the Legislature’s civil intent. Therefore, we affirm the judgment of the Court of Appeals that the increase in the crime victim’s rights assessment does not violate the Ex Post Facto Clauses of the Michigan and United States Constitutions. Young, C.J., and Markman, Kelly, Zahra, McCormack, and Viviano, JJ., concurred with Cavanagh, J. The language contained in the Michigan Constitution’s Ex Post Facto Clause, Const 1963, art 1, § 10, is nearly identical to the language contained in the federal constitution, US Const, art I, § 10. Neither party addressed whether our Ex Post Facto Clause provides greater protections than its federal counterpart. See Wortman v R L Coolsaet Constr Co, 305 Mich 176, 179; 9 NW2d 50 (1943) (stating that if an issue is not briefed, it is generally considered abandoned). In any event, decisions of our Court of Appeals indicate that “Michigan’s Ex Post Facto Clause is not interpreted more expansively than its federal counterpart,” In re Contempt of Henry, 282 Mich App 656, 682; 765 NW2d 44 (2009), citing People v Callon, 256 Mich App 312, 317; 662 NW2d 501 (2003), and, thus, for purposes of this case, we treat the two provisions as coextensive. While Cole was not an ex post facto case, and instead considered whether due process mandates that a criminal defendant is informed of the lifetime electronic monitoring requirement before pleading guilty or no contest for criminal sexual conduct, Cole, 491 Mich at 327, Cole’s analysis is relevant to this case because the analysis used to determine whether the law imposes a criminal penalty is the same. Id. at 334, citing Smith, 538 US at 92. The Crime Victim’s Rights Fund provides funding to implement and support services required by the Crime Victim’s Rights Act, 1985 PA 87, for costs associated with supporting the Michigan Crime Victim Notification Network and its automated victim notification system, fulfilling the notification requirements of Const 1963, art 1, § 24, and crime victim compensation pursuant to 1976 PA 223. See Crime Victims Services Commission Annual Report FY 2012, pp 3-8. Smith found the factors unhelpful because Alaska’s Sex Offender Registration Act was designed to address criminal recidivism, and, therefore, the underlying conduct must always be a crime and involve scienter. Smith, 538 US at 94. We acknowledge that several federal courts of appeal have concluded that a retroactive assessment of an increased “special assessment” similar to the crime victim’s rights assessment at issue in this case constitutes a violation of the Ex Post Facto Clause. See, e.g., United States v Prather, 205 F3d 1265, 1272 (CA 11, 2000); United States v Labeille-Soto, 163 F3d 93, 101-102 (CA 2, 1998). We decline to follow those cases because the parties in those cases agreed that imposition of the increased assessment violated the Ex Post Facto Clause. Prather, 205 F3d at 1272 (stating that both parties agreed that the district court had erred by levying a special assessment of $100 per count against Prather because the Ex Post Facto Clause of the Constitution forbids retroactive application of criminal sanctions); Labeille-Soto, 163 F3d at 101-102 (“The government, which sat mute when the court imposed the $100 assessment at the sentencing hearing, concedes the correctness of this [Ex Post Facto] challenge.”). Later cases reaching the same conclusion simply cite Prather and Labeille-Soto for the proposition that retroactively applying the increased assessment would violate the Ex Post Facto Clause without engaging in any analysis. See, e.g., United States v Jones, 489 F3d 243, 254 n 5 (CA 6, 2007). Likewise, state courts addressing similar issues as those presented in this case that have found ex post facto violations have relied on concessions or simply stated that conclusion with little supporting analysis. See, e.g., People v Sullivan, 6 AD3d 1175, 1175-1176; 775 NYS2d 696 (2004); Taylor v State, 586 So 2d 964, 965 (Ala Crim App, 1991). Accordingly, we find these cases unpersuasive and unhelpful.
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ZAHRA, J. The issue in this case is whether plaintiff, Acorn Investment Co. (Acorn), may be awarded case evaluation costs under MCR 2.403(C)(1). Acorn had purchased property insurance from defendant Michigan Basic Property Insurance Association (Michigan Basic). When the insured property burned down, Acorn filed an insurance claim with Michigan Basic, which Michigan Basic disputed and did not pay. Acorn brought suit in the Wayne Circuit Court to recover under the insurance policy. The court submitted the case to case evaluation pursuant to MCR 2.403(A)(1), and the case evaluation panel rendered an award in Acorn’s favor in the amount of $11,000. Acorn accepted the proposed award, but Michigan Basic rejected it. Because the parties failed to agree on the loss, Acorn demanded, pursuant to the terms of the insurance policy, that the loss be set by appraisal. The appraisal panel determined that Acorn’s claim was worth $20,877. Acorn filed a motion in the circuit court for entry of judgment and assessment of Uniform Trade Practices Act (UTPA) interest, actual costs under MCR 2.403(0(1) based on Michigan Basic’s rejection of the case evaluation award, and debris-removal expenses pursuant to the insurance policy. The court granted the motion for entry of judgment, awarded Acorn $8,391.96 in interest, and ordered Michigan Basic to pay Acorn $6.86 per day until it satisfied the judgment. The court refused Acorn’s requests for actual costs and for debris-removal expenses. Acorn appealed, and the Court of Appeals affirmed. We ordered and heard oral argument on whether to grant Acorn’s application for leave to appeal or take other peremptory action. We hold that the circuit court may award actual costs to Acorn. MCR 2.403(O)(l) requires a court to award actual costs when an opposing party rejects a case evaluation, the action proceeds to verdict, and the verdict is less favorable to the rejecting party than the case evaluation. The parties agree that Michigan Basic rejected the initial case evaluation and that the appraisal panel’s award was less favorable to Michigan Basic than the initial case evaluation. We hold that the remaining requirement, that the action “proceed to verdict,” was also satisfied. Under MCR 2.403(O)(2)(c), the definition of “verdict” includes “a judgment entered as a result of a ruling on a motion after rejection of the case evaluation.” In this case, the action proceeded to a judgment entered as a result of a ruling on a motion when the circuit court granted Acorn’s motion for entry of judgment and interest. Though we did not request that the parties address whether Acorn should have been awarded debris-removal expenses under the insurance policy, we vacate the decision of the Court of Appeals in that regard and remand that issue to the circuit court. It is undisputed that Acorn’s insurance policy included the right to recover for debris-removal expenses. But there is a dispute about whether the appraisal panel awarded them as part of its award, left them for the circuit court to determine, or whether Acorn waived its right to claim them. Acorn makes a colorable argument that the appraisal panel could not have determined the cost of debris removal because debris removal did not constitute “damages.” Furthermore, debris removal costs could not logically be determined by using the formula ordered by the circuit court in its decision in limine— replacement cost less depreciation. Accordingly, we reverse the decision of the Court of Appeals with regard to actual (case evaluation) costs and remand this case to the circuit court for further proceedings consistent with this opinion — including a determination whether Acorn is entitled to debris-removal expenses. I. FACTS AND PROCEEDINGS Acorn owned the property located at 12826 Marlowe in the City of Detroit (the Property). On April 10, 2007, Acorn applied to Michigan Basic for fire insurance for the Property. Michigan Basic issued Acorn Policy No. 4587875 (the Policy), which provided fire insurance for the Property for the period April 11, 2007, to April 11, 2008. On May 27, 2007, a fire occurred at the Property, causing significant damage. Acorn filed a claim with Michigan Basic, which was formally denied on the basis that the Policy was not in force at the time of the loss because it had been cancelled as of May 16, 2007. Acorn filed suit against Michigan Basic. On June 27, 2008, Acorn filed a motion for summary disposition, seeking a declaration that Michigan Basic was required to provide coverage based on the Installment Payment Notice that Acorn received from Michigan Basic on May 11, 2007. Michigan Basic filed a cross-motion for summary disposition, which stated that Acorn was not covered because Michigan Basic had sent two cancellation notices (on April 16, 2007, and May 16, 2007) to Acorn, both stating that coverage would be cancelled on May 16, 2007, because of the Property’s ineligibility for coverage. The circuit court denied the motions for summary disposition, concluding that genuine issues of material fact precluded the entry of judgment. Pursuant to MCR 2.403(A)(1), a case evaluation was performed on November 4, 2008, which resulted in an award for Acorn in the amount of $11,000. Acorn accepted the award, but Michigan Basic rejected it. On April 23, 2009, Acorn filed a motion for summary disposition with regard to Michigan Basic’s cancellation defense on the basis that Michigan Basic’s notice of cancellation did not conform to the statutory requirement that the cancellation notice contain language advising the insured that any unused premium would be refunded on demand. The circuit court granted Acorn’s motion on July 14, 2009. While Acorn’s motion for summary disposition was pending, Acorn made a motion in limine that the fire damage value be determined by replacement cost less depreciation. The circuit court granted the motion. On November 19, 2009, Acorn made a motion to strike Michigan Basic’s affirmative defense of misrepresentation. The circuit court granted the motion, concluding that Acorn was under no duty to advise Michigan Basic of changes in the occupancy of the rental dwelling. Given that Michigan Basic’s liability had already been determined, Acorn filed a motion to refer the issue of damages to a three-person appraisal panel and to appoint a presiding umpire for the panel, as permitted by the insurance policy and the enabling statute, MCL 500.2833(l)(m). Acorn also filed a motion asking the circuit court to require the appraisers to consider only replacement cost less depreciation when determining damages. The court granted both motions. The appraisal panel issued the appraisal award on September 17, 2010, in the amount of $20,877. Michigan Basic did not pay the award and filed no pleadings with respect to the award. Upon Acorn’s receipt of the award, Acorn wrote to the umpire of the appraisal panel, complaining that the award was too low because the panel did not award debris-removal costs, which were permitted by the insurance policy. On November 17, 2010, Acorn filed a motion for entry of judgment in the appraisal amount, together with interest under the UTPA. Acorn also sought an award of case evaluation costs and for additional proceeds under the policy for the cost of debris removal services. Michigan Basic responded to the motion for entry of judgment, indicating that it did not contest Acorn’s request for entry of judgment in the amount of the appraisal award or Acorn’s claim to UTPA interest. Michigan Basic did object, however, to Acorn’s request for case evaluation costs and for debris-removal expenses under the insurance policy, which Michigan Basic claimed could have been, but were not, part of the appraisal award. The circuit court entered a judgment in the amount of $20,877, together with UTPA interest in the amount of $8,391.96, plus future interest in the amount of $6.86 a day until Michigan Basic satisfied the judgment. The court denied Acorn’s claims for case evaluation costs and debris-removal costs. The court denied Acorn’s motion for reconsideration. Michigan Basic paid the judgment. Acorn appealed in the Court of Appeals, seeking review of the circuit court’s denial of case evaluation costs and debris-removal costs. The Court affirmed the court’s decision in a published opinion per curiam. With regard to case evaluation costs, the Court of Appeals reasoned that “ [t]he underlying purpose of case evaluation is to encourage settlement and deter protracted litigation by placing the burden of litigation costs on the party that rejected case evaluation and required the case to proceed to trial.” The Court noted that the statutory appraisal process under MCL 500.2833(l)(m) is “a substitute for the judicial determination of disputes” and “a simple and inexpensive method for the prompt adjustment and settlement of claims [that] effectively constitutes arbitration.” Furthermore, the Court stated that it had “previously rejected the notion that an order or judgment entered following arbitration or settlement constitutes a ‘verdict’ within the meaning of MCR 2.403(0).” To support this proposition, the Court cited Jerico Constr, Inc v Quadrants, Inc; Saint George Greek Orthodox Church of Southgate, Mich v Laupmanis Assoc, PC; and Smith v Elenges. The Court of Appeals wrote: “[T]he appraisal process was effectively an arbitration, and an order or judgment entered pursuant to an arbitration or settlement is not a ‘verdict’ within the meaning of MCR 2.403(0)(2)(c)... [T]he trial court properly denied plaintiffs request for case evaluation sanctions.” With regard to debris-removal expenses, the Court of Appeals reasoned that [ijssues involving an insurance policy’s coverage are generally for the court to determine, and the appraisal process cannot legally settle coverage issues. Where the parties cannot agree on coverage, a court is to determine coverage in a declaratory action before an appraisal of the damage to the property.[ ] It further stated that a party waive [s] its coverage-based challenge and [is] bound by the appraisal award absent bad faith, fraud, misconduct, or manifest mistake when the parties stipulate [ ] to submit the plaintiffs claim for appraisal without first seeking court intervention to determine coverage issues. Here, plaintiff erroneously characterizes its argument regarding debris-removal expenses as a coverage issue and contends that the trial court, rather than the appraisal panel, should have determined the issue. To the contrary, defendant did not assert that debris-removal expenses were not covered under the policy. Rather, it appears that the case proceeded through the appraisal process without plaintiff raising the issue of debris removal expenses. In a letter accompanying the appraisal award, [the] appraiser ... stated that “no allowance was made for debris removal, as no evidence ha[d] been presented that the insured incurred any debris removal expense.” Thus, the appraisal panel would have addressed debris-removal expenses if plaintiff had submitted evidence showing that it had incurred debris-removal costs. While plaintiff contends that it did not incur such costs until after the appraisal proceedings, it is noteworthy that the appraisal award was issued on September 17, 2010, and the fire occurred on May 27, 2007. By submitting its case for appraisal and proceeding through the appraisal process without raising the issue of debris-removal expenses, plaintiff waived its claim for such expenses.[ ] Acorn filed an application for leave to appeal in this Court. We directed the Clerk to schedule oral argument about whether to grant the application or take other action pursuant to MCR 7.302(H)(1) with regard to whether the judgment amounted to a “verdict” that entitled Acorn to case evaluation costs under MCR 2.403(O)(2)(c). II. STANDARD OF REVIEW Whether Acorn is entitled to case evaluation costs depends on our interpretation of a court rule. The interpretation of a court rule is an issue that this Court reviews de novo. III. ANALYSIS A. CONTROLLING LAW Whether Acorn is entitled to actual costs because Michigan Basic rejected the case evaluation is determined by MCR 2.403(0). MCR 2.403(O)(l) states, in relevant part: If a party has rejected an evaluation and the action proceeds to verdict, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the case evaluation. MCR 2.403(0(2) defines the meaning of the word “verdict”: For the purpose of this rule “verdict” includes, a) a jury verdict, (b) a judgment by the court after a nonjury trial, (c) a judgment entered as a result of a ruling on a motion after rejection of the case evaluation. Despite the strong terminology in MCR 2.403(O)(l), stating that the party rejecting the case evaluation “must pay the opposing party’s actual costs,” the court retains discretion regarding whether to award costs in certain circumstances. MCR 2.403(0(11) states that “[i]f the ‘verdict’ is the result of a motion as provided by subrule (0)(2)(c), the court may, in the interest of justice, refuse to award actual costs.” Under MCL 500.2833(l)(m), Michigan fire insurance policies contain the following provision: That if the insured and insurer fail to agree on the actual cash value or amount of the loss, either party may make a written demand that the amount of the loss or the actual cash value be set by appraisal. It is undisputed that Michigan Basic rejected the case evaluation and that the outcome of the appraisal proceeding, even without the court adding interest, was more favorable to Acorn than the case evaluation. The parties further agree that Acorn is not entitled to actual costs under either MCR 2.403(O)(2)(a) or (b). The dispute is whether Acorn may be awarded costs under MCR 2.403(O)(2)(c). To aid our comprehension of MCR 2.403(O)(l) and (2), we substitute the definition of “verdict” from sub-rule (0)(2)(c) (italicized) for the term “verdict” in subrule (0)(1). The resulting rule states as follows: If a party has rejected an evaluation and the action proceeds to a judgment entered as a result of a ruling on a motion after rejection of the case evaluation, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the case evaluation. Under this rule, Michigan Basic is liable for Acorn’s actual costs if: (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. B. APPLICATION OF CONTROLLING LAW TO FACTS Court rules are interpreted using the same principles that govern the interpretation of statutes. When ascertaining the meaning of a court rule, the reviewing court should focus first on the plain language of the rule in question, and when the language of the rule is unambiguous, it must be enforced as written. In this case, under the plain meaning of the court rule, Michigan Basic is liable for Acorn’s actual costs. All the elements of the three-part test have been satisfied. First, the action “proceeded to a judgment” when the circuit court granted Acorn’s motion for entry of judgment and interest. Second, the judgment “entered as a result” of the court’s ruling on a motion— here, the motion for entry of judgment and interest. Third, the court entered the judgment after Michigan Basic rejected the case evaluation. Michigan Basic disputes that the judgment was entered as a result of a judge’s ruling on a motion. Relying on this Court’s opinion in Haliw v Sterling Hts, Michigan Basic argues that the rule contemplates resolution of the case by a dispositive motion in lieu of a trial. Michigan Basic claims that, in contrast, the parties in this case agreed to resolve the issue of damages through the appraisal process. Further, Michigan Basic maintains that Acorn’s motion for entry of judgment and interest was not required for judgment to enter. Michigan Basic is correct that the case was not resolved as a result of the circuit court’s ruling on a motion for summary disposition. This fact, however, is immaterial because the case nonetheless was resolved by a ruling on a different motion — the motion for entry of judgment. We also disagree with Michigan Basic’s contention that the motion for entry of judgment and interest was not necessary for judgment to enter. MCR 2.403(O)(l) and (2)(c) require that “the action proceed[ ] to” a “judgment entered as a result of a ruling on a motion.” A “judgment” is “[a] court’s final determination of the rights and obligations of the parties in a case.” In this case it was the court, not the appraisal panel, that made the final determination of the parties’ rights and obligations. Even if Michigan Basic had immediately paid the appraisal panel’s award, the circuit court would still have had matters to attend to, including awarding interest under MCL 500.2006 for defendant’s failure to pay in a timely fashion. Therefore, the circuit court, not the appraisal panel, determined and entered the judgment. Additionally, submitting the case to the appraisal panel to determine the amount of loss did not constitute a settlement. The circuit court retained the ability to overturn the appraisal panel’s award if the panel acted in bad faith, engaged in fraud or misconduct, or made a manifest mistake. For example, in this case, the circuit court ordered that the appraisal panel determine Acorn’s loss by subtracting depreciation from replacement cost. Had the appraisal panel deviated from this formula when calculating the loss, the circuit court arguably could have overturned the appraisal award for bad faith or manifest mistake. Therefore, the court retained jurisdiction over the case and the award, and it entered a judgment as a result of its ruling on the motion for entry of judgment and interest. Defendant’s argument that Haliw requires a dispositive motion before case evaluation costs are awarded is also incorrect. Though this Court considered the meaning of MCR 2.403(0) in Haliw, that case is not directly on point because it addressed whether the term “costs” in MCR 2.403(0) includes appellate attorney fees. However, while making that determination, we noted that the 1997 amendment of the court rule in MCR 2.403(O)(l) made clear that a “verdict” includes a judgment entered by dispositive motion: Until this Court amended MCR 2.403(0) in 1997, it was sufficiently unclear whether a judgment that entered as a result of a dispositive motion instead of a trial would engender sanctions [now called “costs”]. By amending the court rule, this Court clarified that case evaluation sanctions may indeed be available when a case is resolved after case evaluation by a dispositive motion.[ ] While Haliw involved an entry of judgment after a dispositive motion, and though we used the term “dis-positive motion” when resolving Haliw, we clarify that Haliw does not require a dispositive motion before case evaluation costs are awarded. Haliw merely indicated that dispositive motions were now covered by the modified case evaluation rule. It did not hold that only such motions were covered. The plain language of the rule merely requires that “judgment enter[ ] as a result of a ruling on a motion.” We now turn to a discussion of the Court of Appeal’s reasoning. The Court of Appeals erroneously relied on four cases for its holding that Acorn is not entitled to case evaluation costs: Jerico, Saint George Greek Orthodox Church, Auto-Owners Ins Co v Kwaiser, and Smith Some of these cases are inapplicable because they offer interpretations of an earlier version of the court rule and are no longer controlling. Others are merely inapposite. We conclude that the Court of Appeals’ reliance on Smith was misplaced because it relied on a different court rule. Smith is a 1986 case that held that a consent judgment entered into after was not a “verdict.” Smith refers to the Wayne Circuit Court Rule 403.15(c), which provided: When the board’s evaluation is unanimous, and the defendant accepts the evaluation but the plaintiff rejects it and the matter proceeds to trial, the plaintiff must obtain a verdict in an amount which, when interest on the amount and assessable costs from the date of filing of the complaint to the date of the mediation evaluation are added, is more than 10 percent greater than the board’s evaluation in order to avoid the payment of actual costs to the defendant. We note that the above rule did not specifically define the term “verdict,” as the current rule does. Futhermore, a consent judgment is not the kind of “judgment” required by MCR 2.403(O)(2)(c) because the court does not “determine . . . the rights and obligations of the parties” in a consent judgment. Rather, a consent judgment is a “settlement” or a “contract” “that becomes a court judgment when the judge sanctions it.” Likewise, the Court of Appeals was incorrect to rely on Saint George, a 1994 case that relied on the 1987 version of the court rule. At the time Saint George was decided, MCR 2.403(0) stated: (1) If a party has rejected an evaluation and the action proceeds to trial, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the mediation evaluation. (2) For the purpose of this rule “verdict” includes, (a) a jury verdict, (b) a judgment by the court after a nonjury trial, (c) a judgment entered as a result of a ruling on a motion filed after mediation. [Emphasis added.][ ] In Saint George, the Court of Appeals refused to award sanctions, holding that when a case first proceeds in mediation evaluation and then proceeds to arbitration, the process cannot satisfy the “proceeds to trial language” found in MCR 2.403(O)(l). Because Saint George’s holding is based on language that has been removed from the present MCR 2.403(O)(l), we do not believe that its precedent is persuasive. We conclude that the Court of Appeals’ reliance on Jerico is misplaced for the same reason that it was incorrect to rely on Smith. Jerico held that a stipulated order of dismissal that the court entered on the basis of a settlement agreement did not constitute a verdict under MCR 2.403. But Jerico’s holding does not extend to this case. A stipulated order of dismissal based on a settlement agreement is not a “judgment” in the sense that it is not a final determination by the court of the rights and obligations of the parties. In this case, there was neither a settlement agreement nor a stipulated order of dismissal. And though the parties proceeded to appraisal, the ultimate appraisal award did not constitute the entire judgment. The parties had not settled at the time that Acorn filed its motion for entry of judgment and interest because they were still in dispute with regard to the proper award. That is, Acorn still believed that it was entitled to debris-removal expenses, which Michigan Basic disputed. Thus the circuit court, not the appraisal panel, entered the judgment required to satisfy MCR 2.403(O)(2)(c). Accordingly, the Court of Appeals erred by concluding that Jerico compels the conclusion that the appraisal was akin to a settlement agreement or a stipulated order of dismissal and thus did not constitute a verdict under MCR 2.403. Finally, the Court of Appeals’ reliance on Kwaiser is misplaced because Kwaiser did not involve case evaluation costs and, thus, did not address the meaning of the term “verdict” within MCR 2.403(O)(2)(c). The Kwaiser Court noted that appraisal effectively constitutes arbitration. Michigan Basic argues that this means that an order of judgment following an appraisal cannot be a verdict, particularly in light of holdings from previous caselaw from the Court of Appeals, such as Saint George. However, Michigan Basic’s argument does not necessarily follow from Kwaiser because, as previously stated, Saint George is not dispositive, and in this case we are asked to determine a different issue than what was before the Court in Kwaiser: whether “a judgment entered as a result of a ruling on a motion after rejection of the case evaluation.” MCR 2.403(O)(2)(c). Here, there was no final determination of the rights and obligations of the parties after appraisal because the court would have been able to review the appraisal award for bad faith, fraud, misconduct, and manifest mistake. If the appraisal panel had not followed the court’s method for calculating damages, this would arguably have been bad faith or manifest mistake. Furthermore, the court added to the appraisal award by adding interest and thereby determining the full amount of the verdict. Judgment against Acorn did not enter until Acorn’s rights and liabilities had been finally determined, and this did not occur until the court ruled on the motion for entry of judgment and interest. Michigan Basic’s argument from analogy fails to focus on what entity enters the judgment. It was the circuit court, not the appraisal panel, that did so. IV DEBRIS-REMOVAL expenses In its motion for leave to appeal, Acorn argued that it was entitled to debris-removal expenses under the contract and that either the appraisal panel or the circuit court should have awarded them. Michigan Basic contends that Acorn waived its right to debris-removal expenses by failing to present evidence of them at the appraisal proceeding or raise the issue of jurisdiction in the circuit court before appraisal. A “waiver is the intentional relinquishment or abandonment of a known right.” There is no question that the Policy required compensation for debris-removal expenses. Under its “Incidental Coverages” section, the Policy states: Debris Removal — We pay for the cost to remove the debris of covered property after an insured loss.... We will not pay more for direct loss to property and debris removal combined than the limit that applies to the damaged property. However when the covered loss plus the cost of debris removal is more than the applicable limit, we will pay up to an extra 5% of the applicable limit to cover the cost of debris removal. MCL 500.2833(l)(m) requires that every insurance policy in Michigan contain the following provision: “That if the insured and insurer fail to agree on the actual cash value or amount of the loss, either party may make a written demand that the amount of the loss or the actual cash value be set by appraisal.” Acorn claims that MCL 500.2833(l)(m) only governs actual losses, not the cost of removing debris. Furthermore, Acorn argues that the circuit court’s May 20, 2010 order made it impossible for the appraisal panel to determine the cost of debris removal because the panel was limited to determining losses in a particular way that would have excluded debris-removal expenses. That order stated: IT IS FURTHER ORDERED that the parties and the Appraisal Panel are limited to a determination of actual cash value that is consistent with the Court’s prior Order in Limine and only evidence of replacement cost less depreciation may be considered by the Panel in rendering its Award. We conclude that Acorn presents a colorable argument that it did not waive its right to collect debris-removal expenses at the appraisal proceeding. Debris-removal expenses were not mentioned in the circuit’s court order permitting the parties to proceed to appraisal. Neither would it have made sense for the appraisal panel to determine the amount of debris-removal expenses by engaging in a calculation of “replacement cost less depreciation.” But Acorn did request debris-removal expenses alongside its motion for entry of judgment and interest. Because the trial court did not set forth its reasons for denying debris-removal expenses, it is unclear whether those costs were denied because Acorn waived its claim for them by not requesting them before the appraisal panel or whether they were properly denied on other grounds, such as forfeiture. Therefore, we vacate the decision of the Court of Appeals and remand the issue of debris-removal expenses to the circuit court to determine (1) whether the appraisal panel had the ability under MCL 500.2833 to determine debris-removal expenses, (2) if the appraisal panel did have the authority to determine debris-removal expenses, whether it erred in failing to award such expenses, and (3) if the appraisal panel did not have the authority to determine debris-removal expenses, whether Acorn waived or forfeited its claim to debris-removal expenses. V CONCLUSION Acorn may recover its actual costs under MCR 2.403(0) (2) (c) because the motion for entry of judgment and interest caused the case to “proceed to verdict” when the circuit court ruled on the motion. Because the circuit court has the discretion to award such costs to Acorn, we reverse the Court of Appeals and remand the case to the circuit court for further proceedings. Additionally, we remand to the circuit court for a determination whether Acorn is entitled to recover debris-removal expenses in accordance with Part IV of this opinion. We do not retain jurisdiction. YOUNG, C.J., and MARKMAN, KELLY, McCORMACK, and Viviano, JJ., concurred with Zahra, J. MCL 500.2833(1) (m) required the inclusion of the appraisal provision in the policy. MCL 500.2001 et seq. Acorn Investment Co v Mich Basic Prop Ins Ass’n, 298 Mich App 558; 828 NW2d 94 (2012). Acorn Investment Co v Mich Basic Prop Ins Ass’n, 494 Mich 863 (2013). We note that the circuit court has the discretion to refuse to do so in the interests of justice under MCR 2.403(0X11). Acorn, 494 Mich 863 (2013). See MCL 500.2833(1)0). Acorn, 298 Mich App 558. Id. at 561 (citations and quotation marks omitted). Id. at 562 (citations and quotation marks omitted). Id. Id. at 562-563. Jerico Constr, Inc v Quadrants, Inc, 257 Mich App 22, 666 NW2d 310 (2003). Saint George Greek Orthodox Church of Southgate, Mich v Laupmanis Assoc, 204 Mich App 278, 514 NW2d 516 (1994). Smith v Elenges, 156 Mich App 260, 401 NW2d 342 (1986). Acorn, 298 Mich App at 564. Id. (citations and quotation marks omitted). Id. at 564-565 (fifth alteration in original), citing Angott v Chubb Group of Ins Cos, 270 Mich App 465, 473-474, 717 NW2d 341 (2006). As mentioned, the Court did not request that the parties address whether the circuit court should have awarded Acorn debris-removal expenses. People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). Emphasis added. Marketos v American Employers Ins Co, 465 Mich 407, 412-413; 633 NW2d 371 (2001). Fisher Sand & Gravel Co v Neal A Sweebe, Inc, 494 Mich 543, 560; 837 NW2d 244 (2013). Haliw v Sterling Hts, 471 Mich 700, 708, 691 NW2d 753 (2005). See Black’s Law Dictionary (9th ed 2009). See also, e.g., Marketos, 465 Mich at 407 (stating that, for the purposes of awarding sanctions under MCR 2.403(0), a “verdict” “must represent a finding of the amount that the prevailing party should be awarded,” and the “dollar amount that the jury includes on the verdict form may or may not be the 'verdict’ for that purpose”). Cf Jacobs v Schmidt, 231 Mich 200; 203 NW 845 (1925) (explaining the difference between arbitration and appraisal, noting that, in appraisals, the sole function is to determine value, whereas in arbitration the function is to “adjust disputed claims between the parties”). See Angott, 270 Mich App at 473. Haliw, 471 Mich at 702. The 1997 amendment of MCR 2.403(0) changed the phrase “proceeds to trial” to “proceeds to verdict” in MCR 2.403(0)0). See id. at 708. Id. MCR 2.403(O)(2)(c) (emphasis added). Jerico, 257 Mich App 22. The Court of Appeals cited Jerico for the proposition that a stipulated order of dismissal entered on the basis of a settlement agreement does not constitute a verdict under MCR 2.403(O)(2). Acorn, 298 Mich App at 563. Saint George, 204 Mich App 278. The Court of Appeals cited Saint George for the proposition that mediation sanctions could not he awarded under a prior version of MCR 2.403. Acorn, 298 Mich App at 562. Auto-Owners Ins Co v Kwaiser, 190 Mich App 482, 476 NW2d 467 (1991). The Court of Appeals cited Kwaiser for the proposition that an appraisal effectively constitutes arbitration. Acorn, 298 Mich App at 564. Smith, 156 Mich App 260. The Court of Appeals cited Smith for the proposition that a consent judgment was not a verdict. Acorn, 298 Mich App at 563. See Black’s Law Dictionary (9th ed 2009) (defining “judgment”). Black’s Law Dictionary (9th ed 2009) (defining “consent judgment” as “agreed judgment”). Saint George, 204 Mich App at 281-282. 204 Mich App at 283. Jerico, 257 Mich App at 31. See Black’s Law Dictionary (9th ed 2009) (defining “judgment”). Kwaiser, 190 Mich App at 486. See Angott, 270 Mich App at 472. People v Vaughn, 491 Mich 642, 663; 821 NW2d 288 (2012) (citations and quotation marks omitted). Forfeiture, “the failure to assert a right,” is distinguishable from waiver. Vaughn, 491 Mich at 663. See MCR 2.403(0X1); MCR 2.403(O)(11).
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VIVIANO, J. In this case, we must determine whether plaintiff International Business Machines Corporation (IBM) could elect to use the three-factor apportionment formula under the Multistate Tax Compact (the Compact) for its 2008 Michigan taxes, or whether it was required to use the sales-factor apportionment formula under the Michigan Business Tax Act (BTA). The Department of Treasury (the Department) rejected IBM’s attempt to use the Compact’s apportionment formula and, instead, required IBM to apportion its income using the BTA’s sales-factor formula. We conclude that IBM was entitled to use the Compact’s three-factor apportionment formula for its 2008 Michigan taxes and that the Court of Appeals erred by holding otherwise on the basis of its erroneous conclusion that the Legislature had repealed the Compact’s election provision by implication when it enacted the BTA. We further hold that IBM could use the Compact’s apportionment formula for that portion of its tax base subject to the modified gross receipts tax of the BTA. Accordingly, we reverse the Court of Appeals’ judgment in favor of the Department, reverse the Court of Claims’ order granting summary disposition in favor of the Department, and remand to the Court of Claims for entry of an order granting summary disposition in favor of IBM. I. FACTS AND PROCEEDINGS IBM is a corporation based in New York that provides information technology products and services worldwide. In December 2009, IBM filed its Michigan Business Tax annual return for the 2008 tax year. Line 10 of IBM’s return, the “Apportionment Calculation” line, read “SEE ATTACHED ELECTION.” IBM filed a sepa rate statement along with its return, entitled “Election to use MTC Three Factor Apportionment,” indicating that it elected to apportion its business income tax base and modified gross receipts tax base using the three-factor apportionment formula provided in the Compact. Under these calculations, IBM sought a refund of $5,955,218. The Department disagreed. It determined that IBM could not elect to use the Compact’s formula and that IBM was entitled to a refund of only $1,253,609 when calculated under the BTA’s sales-factor apportionment formula. IBM filed a complaint in the Court of Claims, challenging the Department’s decision. Thereafter, IBM moved for summary disposition under MCR 2.116(C)(10), and the Department moved for summary disposition under MCR 2.116(1)(2). After a hearing on the motions, the Court of Claims denied summary disposition to IBM and granted summary disposition in favor of the Department. The Court of Claims determined that the BTA mandated the use of the sales-factor apportionment formula. In an unpublished opinion, the Court of Appeals affirmed the Court of Claims order granting summary disposition in favor of the Department. The Court of Appeals first determined that there was a facial conflict between the BTA and the Compact insofar as the BTA mandates use of the sales-factor formula while the Compact permits taxpayers to elect to use a three-factor apportionment formula. On the basis of this conflict, the Court of Appeals concluded that the Legislature had repealed the Compact’s election provision by implica tion when it enacted the BTA. The Court of Appeals then stated that it did not need to decide whether the modified gross receipts tax was an “income tax” under the Compact subject to the Compact’s apportionment formula in light of its conclusion that the Compact’s election provision had been repealed by implication. IBM sought leave to appeal in this Court. We granted IBM’s application and asked the parties to address (1) whether the plaintiff could elect to use the apportionment formula provided in the Multistate Tax Compact, MCL 205.581, in calculating its 2008 tax liability to the State of Michigan, or whether it was required to use the apportionment formula provided in the Michigan Business Tax Act, MCL 208.1101 et seq.; (2) whether § 301 of the Michigan Business Tax Act, MCL 208.1301, repealed by implication Article III(l) of the Multistate Tax Compact; (3) whether the Multistate Tax Compact constitutes a contract that cannot be unilaterally altered or amended by a member state; and (4) whether the modified gross receipts tax component of the Michigan Business Tax Act constitutes an income tax under the Multistate Tax Compact.[ ] II. STANDARD OF REVIEW We review de novo a Court of Claims decision on a motion for summary disposition. We also review de novo issues of statutory interpretation. III. HISTORY OF BUSINESS TAXATION IN MICHIGAN Because we believe it important to our analysis in this case, we begin with a discussion of the history of business taxation in Michigan. Michigan’s taxation of business income or activity began in 1953, when the Legislature enacted a business activities tax that taxed the adjusted receipts of a taxpayer. This tax remained in effect until Michigan adopted its first corporate income tax as part of the Income Tax Act of 1967 (ITA).* Against the backdrop of the ITA, Michigan joined the Multistate Tax Compact in 1970 when the Legislature enacted MCL 205.581. The Compact “symbolized the recognition that, as applied to multistate businesses, traditional state tax administration was inefficient and costly to both State and taxpayer.” Thus, the goals of the Compact include facilitating and promoting equitable and uniform taxation of multistate taxpayers. To this end, the Compact operates in conjunction with Michigan’s tax acts, containing several provisions designed to ensure uniform taxation of multistate taxpayers. In 1976, the Legislature replaced the corporate income tax with a single business tax. Unlike its predecessor, the Single Business Tax Act (SBTA) taxed business activity, not income, and operated as “a form of value added tax.” In enacting the SBTA, the Legislature expressly amended the ITA to the extent necessary to implement the SBTA and expressly repealed provisions of the ITA that would conflict with the SBTA. The Legislature, however, did not expressly repeal the Compact. The SBTA remained in effect until 2008, when the Legislature enacted the BTA, which is at issue in this case. Representing another shift in business taxation, the BTA imposed two main taxes: the business income tax and the modified gross receipts tax. In enacting the BTA, the Legislature expressly repealed the SBTA, but again did not expressly repeal the Compact. However, the BTA was short-lived. Effective January 1, 2012, Michigan returned to a corporate income tax. At the same time, the Legislature stayed true to its past practice of repealing conflicting tax acts and expressly repealed the BTA. Throughout the evolution of our state’s method of business taxation, the Compact has remained in effect. Another constant throughout this history is that the Legislature has always required a multistate taxpayer with business income or activity both within and without the state to apportion its tax base. This process, known as formulary apportionment, has allowed Michigan to tax the portion of a taxpayer’s multistate business carried on in Michigan without violating the Due Process Clause of the United States Constitution. We now address whether a multistate taxpayer retained the privilege of electing the apportionment method provided by the Compact for the 2008 tax year. IV WHETHER IBM COULD ELECT TO USE THE COMPACT’S APPORTIONMENT FORMULA FOR ITS 2008 TAXES To determine whether IBM could elect to use the Compact’s three-factor apportionment formula to calculate its 2008 Michigan taxes, we must decide if the Legislature repealed the Compact’s election provision by implication when it enacted the BTA. A. LEGAL PRINCIPLES We begin our analysis “with the axiom that repeals by implication are disfavored.” We will presume, “in most circumstances, that if the Legislature had intended to repeal a statute or statutory provision, it would have done so explicitly.” Nevertheless, “[w]hen the intention of the legislature is clear, repeal by implication may be accomplished by the enactment of a subsequent act inconsistent with a former act” or “by the occupancy of the entire field by a subsequent enactment.” However, “where the intent of the Legislature is claimed to be unclear, it is our duty to proceed on the assumption that the Legislature desired both statutes to continue in effect unless it manifestly appears that such view is not reasonably plausible.” Repeals by implication will be allowed “only when the inconsistency and repugnancy are plain and unavoidable.” We will “construe statutes, claimed to be in conflict, harmoniously” to find “any other reasonable construction” than a repeal by implication. Only when we determine that two statutes “are so incompatible that both cannot stand” will we find a repeal by implication. In attempting to find a harmonious construction of the statutes, we “will regard all statutes upon the same general subject-matter as part of one system . . . ,” Further, “[sjtatutes in pari materia, although in apparent conflict, should, so far as reasonably possible, be construed in harmony with each other, so as to give force and effect to each . . . .” This Court has stated: It is a well-established rule that in the construction of a particular statute, or in the interpretation of its provisions, all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law, although they were enacted at different times, and contain no reference to one another. The endeavor should be made, by tracing the history of legislation on the subject, to ascertain the uniform and consistent purpose of the legislature, or to discover how the policy of the legislature with reference to the subject-matter has been changed or modified from time to time. In other words, in determining the meaning of a particular statute, resort may be had to the established policy of the legislature as disclosed by a general course of legislation. With this purpose in view therefore it is proper to consider, not only acts passed at the same session of the legislature, but also acts passed at prior and subsequent sessions.[ ] In this case, the Compact’s election provision and § 301 of the BTA share the common purpose of setting forth the methods of apportionment of a taxpayer’s multistate business income; therefore, we must construe them together as statutes in pari materia. B. APPLICATION With the history of Michigan business taxation and applicable legal principles in mind, we turn to the specific statutes at issue. IBM sought to apportion its BTA tax base using the Compact’s three-factor apportionment formula. In so doing, IBM relied on the Compact’s election provision, which reads in pertinent part: (1) Any taxpayer subject to an income tax whose income is subject to apportionment and allocation for tax purposes pursuant to the laws of a party state or pursuant to the laws of subdivisions in 2 or more party states may elect to apportion and allocate his income in the manner provided by the laws of such state or by the laws of such states and subdivisions without reference to this compact, or may elect to apportion and allocate in accordance with article IV... .[ ] This provision allows a taxpayer subject to an income tax to elect to use a party state’s apportionment formula or the Compact’s three-factor apportionment formula. However, the Department rejected IBM’s attempts to apportion its income through the Compact’s apportionment formula. Instead, it required IBM to apportion its BTA tax base consistently with the BTA and its sales-factor formula. Section 301 of the BTA reads as follows: (1) Except as otherwise provided in this act, each tax base established under this act shall be apportioned in accordance with this chapter. (2) Each tax base of a taxpayer whose business activities are confined solely to this state shall be allocated to this state. Each tax base of a taxpayer whose business activities are subject to tax both within and outside of this state shall be apportioned to this state by multiplying each tax base by the sales factor calculated under section 303.[ ] We recognize that the language of the BTA is mandatory in nature. Under the statute, a taxpayer’s BTA tax base must be apportioned through the BTA’s sales-factor apportionment formula. The Department argues that this mandatory language precludes the use of any other apportionment formula and, reading it in isolation, we would agree. However, as stated previously, § 301 of the BTA is not the only provision of Michigan’s tax laws pertaining to the apportionment of business income — the Compact’s election provision shares the same purpose. Therefore, we cannot interpret § 301 of the BTA in a vacuum. Rather, we must consider it along with the Compact “by tracing the history of legislation on the subject, to ascertain the uniform and consistent purpose of the legislature.” The BTA is not the first Michigan business tax act to contain a mandatory apportionment formula. All our past business tax acts mandated that a taxpayer with income or activity that was taxable within and without the state allocate and apportion its tax base consistently with each respective act. These acts further mandated that the tax base be apportioned through a specific apportionment formula. The mandatory apportionment language of the BTA is nearly identical to the language of its predecessors. The Department argues that the Legislature repealed the Compact’s election provision when it enacted the BTA because § 301 of the BTA is the first tax provision with apportionment language directly in conflict with the Compact’s election provision. The import of this argument is that the Compact’s election provision was a dead letter when it was enacted because both the ITA and the election provision required use of the same three-factor apportionment formula. However, the Department’s argument overlooks that the Compact’s election provision, by using the terms “may elect,” contemplates a divergence between a party state’s mandated apportionment formula and the Compact’s own formula — either at the time of the Compact’s adoption by a party state or at some point in the future. Otherwise, there would be no point in giving taxpayers an election between the two. In fact, reading the Compact’s election provision as forward-looking— i.e., contemplating the future enactment of a state income tax with a mandatory apportionment formula different from the Compact’s apportionment formula — is the only way to give meaning to the provision when it was enacted in Michigan. Viewed in this light, the BTA’s mandatory apportionment language may plausibly be read as compatible with the Compact’s election provision. Moreover, our review of the statutes in pari materia indicates a uniform and consistent purpose of the Legislature for the Compact’s election provision to operate alongside Michigan’s tax acts. Just as it did when it enacted the ITA, the Legislature, in enacting the BTA, had full knowledge of the Compact and its provisions. Even with such knowledge on both occasions, the Legislature left the Compact’s election provision intact. By contrast, the Legislature expressly repealed or amended other inconsistent acts regarding the taxation of businesses. Had the Legislature believed that the Compact’s election provision no longer had a place in Michigan’s tax system or conflicted with the purpose of the BTA, it could have taken the necessary action to eliminate the election provision. Because the Legislature gave no clear indication that it intended to repeal the Compact’s election provision, we proceed under the assumption that the Legislature intended for both to remain in effect. After reading the statutes in pari materia, we conclude that a reasonable construction exists other than a repeal by implication. Under Article III(l) of the Compact, the Legislature provided a multistate taxpayer with a choice between the apportionment method contained in the Compact or the apportionment method required by Michigan’s tax laws. If a taxpayer elects to apportion its income through the Compact, Article IV(9) mandates that the taxpayer do so using a three-factor apportionment formula. Alternatively, if the taxpayer does not make the Compact election, then the taxpayer must use the apportionment formula set forth in Michigan’s governing tax laws. In this case, IBM’s tax base arose under the BTA. Had it not elected to use the Compact’s apportionment formula, IBM would have been required to apportion its tax base consistently with the mandatory language of the BTA — i.e., through the BTA’s sales-factor apportionment formula. Thus, we believe the BTA and the Compact are compatible and can be read as a harmonious whole. Subsequent action by the Legislature indicates that it did not impliedly repeal the Compact’s election provision when it enacted the BTA. On May 25, 2011, the Legislature expressly amended the Compact’s election provision by adding the following language: [Ejxcept that beginning January 1, 2011 any taxpayer subject to the Michigan business tax act, 2007 PA 36, MCL 208.1101 to 208.1601, or the income tax act of 1967, 1967 PA 281, MCL 206.1 to 206.697, shall, for purposes of that act, apportion and allocate in accordance with the provi sions of that act and shall not apportion or allocate in accordance with article IV[ ] There is no dispute that the Legislature specifically intended to retroactively repeal the Compact’s election provision for taxpayers subject to the BTA beginning January 1, 2011. The Legislature could have — but did not — extend this retroactive repeal to the start date of the BTA. In addressing this legislation, the dissent suggests that “the 2011 Legislature may have simply been acting expressly to confirm what the 2007 Legislature believed it had already done implicitly.” We would agree with that conclusion if the Legislature had retroactively repealed the Compact’s election provision beginning January 1, 2008, the effective date of the BTA. However, by only repealing the Compact’s election provision starting January 1, 2011, the Legislature created a window in which it did not expressly preclude use of the Compact’s election provision for BTA taxpayers. Further, we believe that the express repeal of the Compact’s election provision effective January 1, 2011, is evidence that the Legislature had not impliedly repealed the provision when it enacted the BTA. Therefore, a review of the 2011 amendments supports our conclusion that the Compact’s election provision remained in effect for the 2008 tax year. C. RESPONSE TO THE DISSENT The dissent’s analysis has a tantalizing simplicity to it. It homes in on the plain language and mandatory nature of the BTA’s apportionment provision. However, the dissent spends very little time considering the language of the Compact, its history, or the history of business taxation in Michigan. While this approach may be proper in construing the BTA in a typical case, it is incomplete when we are faced with the question of implied repeal. Under such circumstances, that the dissent has arrived at the better or even the best interpretation of the BTA does not end the inquiry. Rather, because there is a presumption against implied repeals, it is our task to determine if there is any other reasonable construction that would harmonize the two statutes and avoid a repeal by implication. Repeals by implication are rare, and properly so, given that we will presume under most circumstances that “if the Legislature had intended to repeal a statute or statutory provision, it would have done so explicitly.” They are even more unlikely in the realm of our state’s taxation laws. This certainly creates a very high bar, but we disagree with the dissent that we have made it absolute. Rather, by using the applicable canons of construction and faithfully applying our precedents in this area, we have arrived at a reasonable construction that harmonizes the BTA and the Compact. The dissent agrees that “every attempt” must be made to construe the BTA and the Compact harmoniously. But, in the end, the dissent fails to heed this call. Instead, because of its rigid focus on the mandatory language of the BTA — to the exclusion of the language and history of the Compact, and its place in Michigan’s taxation scheme — the dissent’s analysis is at odds with our longstanding implied-repeal jurisprudence. D. CONCLUSION AS TO THE ISSUE OF IMPLIED REPEAL In sum, because we are able to harmonize the BTA and the Compact’s election provision, we conclude that the statutes are not “ ‘so incompatible that both cannot stand.’ ” We believe that our interpretation allows the Compact’s election provision to serve its purpose of providing uniformity to multistate taxpayers in light of Michigan’s enactment of an apportionment formula different from the Compact’s formula. Any conflict apparent from a first reading of these statutes is reconcilable when the statutes are read in pari materia. Therefore, the Department has failed to overcome the presumption against repeals by implication. Accordingly, the Court of Appeals erred by holding that the Legislature repealed the Compact’s election provision by implication when it enacted the BTA. Instead, we hold that the Compact’s election provision was available to IBM for the 2008 tax year. V WHETHER THE MODIFIED GROSS RECEIPTS TAX IS AN INCOME TAX UNDER THE COMPACT Having determined that IBM could elect to use the Compact’s apportionment formula for the 2008 tax year, we must next consider whether IBM could apportion its entire BTA tax base through the Compact’s apportionment formula. IBM’s 2008 BTA tax base contained two components: the business income tax base and the modified gross receipts tax (MGRT) base. The parties quarrel over whether both components may be apportioned under the Compact. The Compact election is available to “[a]ny taxpayer subject to an income tax.” While it is undisputed that the business income tax is an income tax, the Department argues that the MGRT is not an income tax, but rather a gross receipts tax not subject to the Compact’s election provision. Therefore, we must determine whether the MGRT is an income tax under the Compact and, thus, apportionable under the Compact’s three-factor apportionment formula. The Compact defines “income tax” as follows: [A] tax imposed on or measured by net income including any tax imposed on or measured by an amount arrived at by deducting expenses from gross income, 1 or more forms of which expenses are not specifically and directly related to particular transactions.[ ] Under the Compact’s broad definition, a tax is an income tax if the tax measures net income by subtracting expenses from gross income, with at least one of the expense deductions not being specifically and directly related to a particular transaction. “Modified gross receipts tax” is not defined by the BTA, but MCL 208.1203(2) states, “[The MGRT] levied and imposed under this section is upon the privilege of doing business and not upon income or property.” Although this statement indicates that the MGRT is not a tax upon income under the BTA, we must still determine whether the MGRT fits under the broad definition of “income tax” under the Compact. The MGRT base is “a taxpayer’s gross receipts . . . less purchases from other firms . . . .” The BTA defines “gross receipts” as the entire amount received by the taxpayer as determined by using the taxpayer’s method of accounting used for federal income tax purposes, less any amount deducted as bad debt for federal income tax purposes that corresponds to items of gross receipts . .., from any activity whether in intrastate, interstate, or foreign commerce carried on for direct or indirect gain, benefit, or advantage to the taxpayer or to others . .. .[ ] Not only is the gross receipts amount reduced by numerous exclusions, it is also subject to a deduction for the “amount deducted as bad debt for federal income tax purposes that corresponds to items of gross receipts included in the modified gross receipts tax base.” This total — the entire amount received by the taxpayer from any activity minus the bad-debt deduction and the numerous exclusions under MCL 208.1111 — is the gross receipts base from which the MGRT liability originates. After the taxpayer determines its gross receipts through the above calculation, the taxpayer then reduces the gross receipts base by “purchases from other firms.” The “purchases from other firms” deductions include, among other things, “inventory acquired dur ing the tax year, including freight, shipping, delivery, or engineering charges included in the original contract price”; “assets . . . acquired during the tax year of a type that are, or under the internal revenue code will become, eligible for depreciation, amortization, or accelerated capital cost recovery for federal income tax purposes”; and materials and supplies to the extent not included in inventory or depreciable property. There are also deductions for compensation paid in certain industries and for payments to independent contractors. Once gross receipts is reduced by any applicable deductions, the taxpayer arrives at its MGRT base, which is then subject to the MGRT at a rate of .80 percent after allocation or apportionment to this state. Having examined how a taxpayer’s MGRT base is calculated, we now turn to the question whether the MGRT fits within the Compact’s definition of “income tax.” For the MGRT to be an income tax under the Compact, a tax must measure net income by starting with gross income and subtracting expenses, with at least one of the expense deductions not specifically and directly related to a particular transaction. The Compact and the BTA do not define “gross income.” Therefore, we look elsewhere to determine what normally constitutes gross income. The Internal Revenue Code defines “gross income” as “all income from whatever source derived” and includes a nonexclusive list of items that includes things such as “gross income de rived from business” and “gains derived from dealings in property.” 26 CFR § 1.61-1 provides that “[g]ross income includes income realized in any form, whether in money, property, or services.” 26 CFR § 1.61-3 fiirther provides that gross income for manufacturing, merchandising, or mining businesses is “the total sales, less the cost of goods sold, plus any income from investments and from incidental or outside operations or sources.” Moreover, Black’s Law Dictionary states that gross income means “[t]otal income from all sources before deductions, exemptions, or other tax reductions.” These definitions of gross income are similar to the definition of gross receipts under the BTA — the entire amount received by the taxpayer as determined from any gainful activity. Like gross income under the Internal Revenue Code, gross receipts are subject to myriad exclusions and deductions. Notably, gross receipts are subject to a reduction for the purchase of inventory during the tax year, including freight, shipping, delivery, or engineering charges included in the original contract price. This is similar to the IRS’s definition of “gross income” for manufacturing, merchandising, or mining businesses— total sales less the cost of goods sold. In addition, several of these exclusions or deductions are not specifically and directly related to particular transactions. Depreciable assets can be assets used over a certain number of years and, thus, not related to a single transaction. Materials and supplies purchased during a tax year can be used at any time for the operation of a business and for any amount of transactions. Finally, the purchase of inventory, which includes such things as goods held for resale or raw materials, some of which can stay in a taxpayer’s warehouse for an indeterminate amount of time, can be an expense not specifically or directly related to a particular transaction. We hold that the MGRT fits within the broad definition of “income tax” under the Compact by taxing a variation of net income — the entire amount received by the taxpayer as determined from any gainful activity minus inventory and certain other deductions that are expenses not specifically and directly related to a particular transaction. Therefore, IBM could elect to use the Compact’s apportionment formula for that portion of its tax base subject to the MGRT for the 2008 tax year. VI. CONCLUSION We conclude that Court of Appeals erred by holding that the BTA repealed the Compact’s election provision by implication. Therefore, IBM could elect to use the Compact’s apportionment formula during the 2008 tax year. We further hold that IBM could use the Compact’s apportionment formula to apportion its MGRT base under the BTA. Accordingly, we reverse the Court of Appeals’ judgment in favor of the Department, reverse the Court of Claims’ order granting summary disposition in favor of the Department, and remand to the Court of Claims for entry of an order granting summary disposition in favor of IBM. CAVANAGH and MARKMAN, JJ., concurred with VMANO, J. MCL 205.581 et seq. MCL 208.1101 et seq. IBM v Dep’t of Treasury, unpublished opinion per curiam of the Court of Appeals, issued November 20, 2012 (Docket No. 306618). Id. at 3. Id. at 3-4. It also determined that the Compact was not a binding contract. Id. at 5. Judge Riohdan concurred in all respects except regarding the issue of repeal by implication. He determined that the panel did not need to conclude that the BTA had impliedly repealed the Compact because MCL 208.1309 allowed the taxpayer to petition for another apportionment formula. He concluded that the plain language of the BTA required IBM to apportion its income tax consistently with the BTA. IBM v Dep’t of Treasury, 494 Mich 874 (2013). Malpass v Dep’t of Treasury, 494 Mich 237, 245; 833 NW2d 272 (2013). Id. See 1953 PA 150. See also Armco Steel Corp v Dep’t of Revenue, 359 Mich 430, 444; 102 NW2d 552 (1960) (“This tax is part of a general scheme of State taxation of business activities in Michigan. It is a tax on Michigan activities measured, in amount, by adjusted receipts derived from or attributable to Michigan sources ....”). See MCL 206.61, as enacted by 1967 PA 281. The stated purpose of the ITA was “to meet deficiencies in state funds by providing for the imposition, levy, computation, collection, assessment, and enforcement by lien and otherwise of taxes on or measured by net income activities . ...” Title, 1967 PA 281. 1969 PA 343. Section 1 of 1969 PA 343, codified under MCL 205.581, includes the mandatory provisions of the Compact that must be enacted for a state to become a member. See US Steel Corp v Multistate Tax Comm, 434 US 452, 455-456; 98 S Ct 799; 54 L Ed 2d 682 (1978). US Steel Corp, 434 US at 456. See MCL 205.581, Art I (“The purposes of this compact are to: (1) Facilitate proper determination of state and local tax liability of multistate taxpayers, including the equitable apportionment on tax bases and settlement of apportionment disputes!,] (2) Promote uniformity or compatibility in significant components of tax systems!,] (3) Facilitate taxpayer convenience and compliance in the filing of tax returns and in other phases of tax administration!;,] and (4) Avoid duplicative taxation.”). See MCL 208.1 et seq., as enacted by 1975 PA 228. Trinova Corp v Dep’t of Treasury, 433 Mich 141, 149; 445 NW2d 428 (1989). See 1975 PA 233. See id. 2007 PA 36; MCL 208.1101 et seq. See MCL 208.1201; MCL 208.1203. Enacting section 1 of 2006 PA 325 provides: “The single business tax act, 1975 PA 228, MCL 208.1 to 208.145, is repealed effective for tax years that begin after December 31, 2007.” See 2011 PA 38. See 2011 PA 39, which reads in part: Enacting section 1. The Michigan business tax act, 2007 PA 36, MCL 208.1101 to 208.1601, is repealed effective on the date that the secretary of state receives a written notice from the department of treasury that the last certificated credit or any carryforward from that certificated credit has been claimed. Enacting section 2. This amendatory act does not take effect unless House Bill No. 4361 of the 96th Legislature is enacted into law. See MCL 205.553, as amended by 1954 PA 17; 1970 CL 206.115; 1979 CL 208.41; MCL 208.1301. Malpass, 494 Mich at 245-246. This is the principal argument offered by the Department in disallowing use of the Compact’s apportionment formula. In the alternative, the Department argues the Compact can be harmonized with the BTAby reading the Compact’s election provision and apportionment formula into MCL 208.1309. We address this argument in note 55 of this opinion. Wayne Co Pros v Dep’t of Corrections, 451 Mich 569, 576; 548 NW2d 900 (1996). The implied repeal doctrine has “remained stable over approximately four centuries of common law in the United Kingdom and then here in the United States.” Markham, The Supreme Court’s New Implied Repeal Doctrine: Expanding Judicial Power to Rewrite Legislation under the Ballooning Conception of “Plain Repugnancy,” 45 Gonz L Rev 437, 464 (2010). Lord Edward Coke recognized the implied repeal doctrine as far back as 1614. See id., p 456-458 (discussing Lord Coke’s seminal case on the implied repeal doctrine — Doctor Foster’s Case, 77 Eng Rep 1222 (KB, 1614)). Wayne Co Pros, 451 Mich at 576. Washtenaw Co Rd Comm’rs v Pub Sen Comm, 349 Mich 663, 680; 85 NW2d 134 (1957). Wayne Co Pros, 451 Mich at 577. Tillotson v Saginaw, 94 Mich 240, 244-245; 54 NW 162 (1892). Wayne Co Pros, 451 Mich at 576-577 (emphasis added; citations and quotation marks omitted). Valentine v Redford Twp Supervisor, 371 Mich 138, 144; 123 NW2d 227 (1963). As with any issue of statutory interpretation, our goal “is to give effect to the Legislature’s intent, focusing first on the statute’s plain language.” Malpass, 494 Mich at 247-248 (citation and quotation marks omitted). Rathbun v Michigan, 284 Mich 521, 544; 280 NW 35 (1938) (citation and quotation marks omitted). Id. (citation and quotation marks omitted). Id. at 543-544 (citation and quotation marks omitted). Id. at 543 (“Statutes in pari materia are those ... which have a common purpose ... .”). MCL 205.581, Art IV(9) (“All business income shall be apportioned to this state by multiplying the income by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is 3.”). MCL 205.581, Art III(l). MCL 208.1301. See Fradco v Dep’t of Treasury, 495 Mich 104, 114; 845 NW2d 81 (2014) (“The Legislature’s use of the word ‘shall’... indicates a mandatory and imperative directive.”). MCL 208.1301(1). See also People v Stephan, 241 Mich App 482, 497; 616 NW2d 188 (2000) (recognizing that interpreting the unambiguous language of two conflicting statutes does not end the analysis because “courts do not construe individual statutes in a vacuum” but rather construe statutes together under the doctrine of in pari materia). Rathbun, 284 Mich at 543-544 (stating further that courts “ ‘will regard all statutes upon the same general subject matter as part of one system’ ”) (citation omitted). See MCL 205.552, as amended by 1954 PA 17 (providing that “[t]he adjusted receipts of a taxpayer derived from or attributable to Michigan sources shall be determined in accordance with the provisions of section 3 of this act”); 1970 CL 206.103 (providing that “[a]ny taxpayer having income from business activity which is taxable both within and without this state ... shall allocate and apportion his net income as provided in this act”); 1979 CL 208.41 (providing that “[a] taxpayer whose business activities are taxable both within and without this state, shall apportion his tax base as provided in this chapter”). See MCL 205.553(b), as amended by 1954 PA 17 (requiring that a taxpayer with adjusted receipts attributable to activity within and without Michigan apportion the receipts consistent with a three-factor formula); 1970 CL 206.115 (requiring that “[a]ll business income... shall be apportioned to this state” through the standard three-factor apportionment formula); 1979 CL 208.45 (requiring that “[a]U of the tax base... shall be apportioned to this state” through the three-factor apportionment formula). In 1991, the Legislature began to phase out the SBTA’s equally weighted, three-factor apportionment formula, requiring a progressively more sales-factor-focused apportionment formula. See MCL 208.45, as amended by 1991 PA 77. However, the new apportionment formula was still mandatory. MCL 205.581, Art III(l). See also Black’s Law Dictionary (9th ed) (defining an “election” as “[t]he exercise of a choice; esp., the act of choosing from several possible rights or remedies in a way that precludes the use of other rights or remedies”). See Moore v Fennvile Pub Schs Bd of Ed, 223 Mich App 196, 201; 566 NW2d 31 (1997) (“It is the duty of the courts to interpret statutes so as to render no provision meaningless.”). Rathbun, 284 Mich at 543-544. Although the ITA’s apportionment method is largely consistent with the Compact’s apportionment method, caselaw during the period in which both were in effect reflects some potential for inconsistency. See Consumers Power Co v Dep’t of Treasury, 235 Mich App 380, 386 n 6; 597 NW2d 274 (1999) (discussing definitional differences between the ITA and the Compact); Chocola v Dep’t of Treasury, 132 Mich App 820, 831; 348 NW2d 290 (1984); Donovan Const Co v Dep’t of Treasury, 126 Mich App 11; 337 NW2d 297 (1983). In re Reynolds Estate, 274 Mich 354, 362; 264 NW 399 (1936) (“The Legislature, in passing [a new act], is presumed to have done so with a full knowledge of existing statutes.”). See notes 21 and 23 of this opinion. See Wayne Co Pros, 451 Mich at 577. Id. at 576-577. Despite the above framework, the Department argues that if the BTA and the Compact cam be harmonized, it is only through MCL 208.1309(1), which allows a taxpayer to petition to use another apportionment method. We disagree. The Department’s “harmonization” would actually be an abrogation of the election provision. Section 309 requires that a taxpayer petition the Department for another apportionment method and prove that the BTA’s apportionment provision does not fairly represent the taxpayer’s business activity in the state. Thus, the Department’s interpretation takes the choice out of the taxpayer’s hands and is inconsistent with the plain language of the Compact. Therefore, we decline to accept the Department’s proposed harmonization. See Baxter v Robertson, 57 Mich 127, 132; 23 NW 711 (1885) (“Legislative construction of past legislation ... is always entitled to be considered with some care, so far as it throws light on doubtful language ----”). 2011 PA 40 (emphasis added). Post at 675. See 1A Singer, Sutherland Statutory Construction (7th ed), § 23:11, p 485 (“[T]he later express repeal of a particular statute may be some indication that the legislature did not previously intend to repeal the statute by implication.”). See Jackson v Mich Corrections Comm, 313 Mich 352, 356; 21 NW2d 159 (1946). Wayne Co Pros, 451 Mich at 576-577 (emphasis added). See also Rathbun, 284 Mich at 544-545 (If we “can by any fair, strict, or liberal construction find for the two provisions a reasonable field of operation, without destroying their evident intent and meaning, preserving the force of both, and construing them together in harmony with the whole course of legislation upon the subject, it is [our] duty to do so.”) (emphasis added). Wayne Co Pros, 451 Mich at 576. See also Matsushita Elec Indus Co v Epstein, 516 US 367, 381; 116 S Ct 873; 134 L Ed 2d 6 (1996) (“The rarity with which we have discovered implied repeals is due to the relatively stringent standard for such findings, namely, that there he an ‘irreconcilable conflict’ between the two federal statutes at issue.”). 1A Singer, Sutherland Statutory Construction (7th ed), § 23:10, p 484, citing Sylk v United States, 331 F Supp 661, 665 (ED Pa, 1971) (“On subjects to which the legislature pays continuous, close attention, such as internal revenue laws, the presumption against implied repeal may have greater force.”). Contrary to the dissent’s suggestion, the question is not whether the 2008 Legislature could disregard a policy choice by the 1970 Legislature — obviously it could — but instead what action it must take to make its intentions clear in the absence of express repealing language in the statute. Valentine, 371 Mich at 144 (citation omitted). The Department also cannot show that the Legislature intended to occupy the entire field covered by the Compact when it enacted the BTA to establish a repeal by implication. Washtenaw Co Rd Comm’rs, 349 Mich at 680. The BTA and the Compact, while having some overlapping provisions, occupy two different fields. The BTA is a stand-alone tax act that governs the taxation of businesses. The Compact acts as an overlay to Michigan’s taxation system. It is specifically designed to leave the member states with “complete control over all legislation and administrative action affecting the rate of tax, the composition of the tax base ..., and the means and methods of determining tax liability and collecting any taxes determined to be due.” US Steel Corp, 434 US at 457. Because we are able to harmonize the statutes and conclude that no repeal by implication occurred, we decline to discuss whether the Compact is binding and, thus, whether the Legislature even could repeal the Compact by implication. That inquiry involves constitutional issues, which we will not reach because they are unnecessary to resolve the case. See Booth Newspapers, Inc v Univ of Mich Bd, of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993) (“In addition, there exists a general presumption by this Court that we will not reach constitutional issues that are not necessary to resolve a case.”). MCL 205.581, Art III(l). MCL 205.581, Art 11(4). The Compact also defines “gross receipts tax” in Art 11(6) as follows: [A] tax, other than a sales tax, which is imposed on or measured by the gross volume of business, in terms of gross receipts or in other terms, and in the determination of which no deduction is allowed which would constitute the tax an income tax. We need not put a definitive label on the MGRT, a task with which commentators have struggled. See, e.g., McIntyre & Pomp, A Policy Analysis of Michigan’s Mislabeled Gross Receipts Tax, 53 Wayne L Rev 1283 (2007) (concluding that the MGRT is akin to a sales-subtraction value added tax but that it is not a transactional tax); Gandhi, Computing the Tax Base: The Michigan Business Tax, 53 Wayne L Rev 1369 (2007) (concluding that the MGRT is a reverse-build of Michigan’s now-repealed Single Business Tax); Grob & Roberts, The Michigan Business Tax Replaces the State’s Much-Vilified SBT, 17-Oct J Multistate Tax’n & Incentives 8 (2007) (concluding that the MGRT is something between a gross receipts tax and a gross margin tax). Instead, we are only tasked with determining whether the MGRT qualifies as an income tax under the Compact. MCL 208.1203(3). MCL 208.1111(1). Id. MCL 208.1203(3). MCL 208.1113(6)(a) through (c). “Inventory” is defined as “[t]he stock of goods held for resale in the regular course of trade of a retail or wholesale business” and “[fjinished goods, goods in process, and raw materials of a manufacturing business purchased from another person.” MCL 208.1111(4)(a) and (b). MCL 208.1113(6)(d) through (g). MCL 208.1203(1). MCL 205.581, Art 11(4). 26 USC 61. Black’s Law Dictionary (9th ed), p 831. “Cost of goods sold” is determined by a taxpayer’s inventory. See 33A Am Jur 2d, Federal Taxation, § 6500 (“A taxpayer must use inventories to determine the cost of goods sold if the production, purchase, or sale of merchandise is an income-producing factor.”). See also Thor Power Tool Co v Comm’r of Internal Revenue, 439 US 522, 530 n 9; 99 S Ct 773; 58 L Ed 2d 785 (1979); Hygienic Prods Co v Comm’r of Internal Revenue, 111 F2d 330, 331 (CA 6, 1940). While the Compact does not define the phrase “not specifically and directly related to particular transactions,” the use of the words “specifi cally,” “directly,” and “particular” connotes a close relation to an individual transaction. See Random House Webster’s College Dictionary (2001). That is, the tax cannot be a tax focusing on specific transactions, i.e., a transactional tax. See 26 USC 167, 168. MCL 208.1111(4)(a), (b). Our holding is limited to the determination that the MGRT is included within the Compact definition of “income tax.” As noted earlier in note 70, we do not need to reach the issue whether the MGRT, generally, is an income tax.
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McCORMACK, J. At issue in this case is the constitutionality of Michigan’s one-parent doctrine. The one-parent doctrine permits a court to interfere with a parent’s right to direct the care, custody, and control of the children solely because the other parent is unfit, without any determination that he or she is also unfit. In other words, the one-parent doctrine essentially imposes joint and several liability on both parents, potentially divesting either of custody, on the basis of the unfitness of one. Merely describing the doctrine foreshadows its constitutional weakness. In the case before us, upon petition by the Department of Human Services (DHS), the trial court adjudicated respondent-mother, Tammy Sanders, as unfit but dismissed the allegations of abuse and neglect against respondent-appellant-father, Lance Laird. Laird moved for his children to be placed with him. Although Laird was never adjudicated as unfit, the trial court denied Laird’s motion, limited his contact with his children, and ordered him to comply with a service plan. In justifying its orders, the court relied on the one-parent doctrine and the Court of Appeals’ decision in In re CR, 250 Mich App 185; 646 NW2d 506 (2002), from which that doctrine derives. Laird believes that the one-parent doctrine violates his fundamental right to direct the care, custody, and control of his children because it permits the court to enter dispositional orders affecting that right without first determining that he is an unfit parent. We agree. Because application of the one-parent doctrine impermissibly infringes the fundamental rights of unadjudicated parents without providing adequate process, we hold that it is unconstitutional under the Due Process Clause of the Fourteenth Amendment. I. FACTUAL AND PROCEDURAL BACKGROUND Laird is the father of two boys: I] born in 2010, and C, born in 2011. Sanders is the boys’ mother. Four days after C was born drug positive, the Jackson Circuit Court, acting on a petition filed by the DHS, removed C from Sanders’s custody and placed the child with Laird. At that time, P was also in Laird’s custody. Several weeks later, the DHS filed an amended petition alleging that Laird had tested positive for cocaine, that Sanders had admitted “getting high” with Laird, and that Sanders had spent the night at Laird’s home despite a court order that prohibited her from having unsupervised contact with the children. At a November 16, 2011 preliminary hearing, the court removed the children from Laird’s custody and placed them in the custody of the DHS. Laird contested the allegations in the amended petition and requested an adjudication with respect to his fitness as a parent. On February 7, 2012, Sanders pleaded no contest to the allegations of neglect and abuse in the amended petition. Laird declined to enter a plea and instead repeated his demand for an adjudication. Laird also moved to change the children’s temporary placement from their paternal aunt to the children’s paternal grandmother, with whom Laird then resided. The court conducted a placement hearing at which several witnesses, including Laird, testified. Laird admitted that he had allowed Sanders to spend one night at his house after the court removed the children from her custody. Laird claimed, however, that the children never saw Sanders that night. Laird also testified that he was on probation stemming from a domestic violence conviction. The court took the placement motion under ad visement and maintained placement of the children with their aunt pending Laird’s adjudication, which was scheduled for May 1, 2012. A few weeks later, on April 18, 2012, the DHS dismissed the remaining allegations against Laird, and Laird’s adjudication was cancelled. At a May 2, 2012 review hearing, the court ordered Laird to comply with services, including parenting classes, a substance-abuse assessment, counseling, and a psychological evaluation. Laird’s contact with his children was restricted to supervised parenting time, and placement of the children continued with their aunt. On August 22, 2012, Laird moved for immediate placement of the children with him. Laird argued that the court had no legal authority to condition the placement of his children on his compliance with a service plan because he had not been adjudicated as unfit. The court, relying on the Court of Appeals’ decision in CR, denied the motion. Laird’s application for interlocutory leave to appeal in the Court of Appeals was denied for lack of merit. In re Sanders Minors, unpublished order of the Court of Appeals, entered January 18, 2013 (Docket No. 313385). This Court granted leave to appeal to address “whether the application of the one-parent doctrine violates the due process or equal protection rights of unadjudicated parents.” In re Sanders, 493 Mich 959 (2013). II. LEGAL BACKGROUND A. STANDARD OF REVIEW Whether child protective proceedings complied with a parent’s right to procedural due process presents a question of constitutional law, which we review de novo. In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009) (opinion by CORRIGAN, J.). The interpretation and application of statutes and court rules are also reviewed de novo. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). Statutes are presumed to be constitutional, and we have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent. Taylor v Gate Pharm, 468 Mich 1, 6; 658 NW2d 127 (2003). We interpret court rules using the same principles that govern statutory interpretation. Haliw v Sterling Hts, 471 Mich 700, 704; 691 NW2d 753 (2005). B. CHILD PROTECTIVE PROCEEDINGS IN MICHIGAN A brief review of the court rules and statutes governing child protective proceedings is helpful here. The juvenile code, MCL 712A.1 et seq., establishes procedures by which the state can exercise its parens patriae authority over minors. These procedures are reflected in Subchapter 3.900 of the Michigan Court Rules. In Michigan, child protective proceedings comprise two phases: the adjudicative phase and the dispositional phase. See In re Brock, 442 Mich 101, 108; 499 NW2d 752 (1993). Generally, a court determines whether it can take jurisdiction over the child in the first place during the adjudicative phase. Id. Once the court has jurisdiction, it determines during the dispositional phase what course of action will ensure the child’s safety and well-being. Id. The court’s authority to conduct those proceedings is found at MCL 712A.2(b), which encompasses child protective proceedings generally. The first subsection of that statute provides the court with jurisdiction over a child in cases of parental abuse or neglect. MCL 712A.2(b)(l) (providing for jurisdiction over a juvenile whose parent “neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals”). To initiate a child protective proceeding, the state must file in the family division of the circuit court a petition containing facts that constitute an offense against the child under the juvenile code (i.e., MCL 712A.2(b)). MCL 712A.13a(2); MCR 3.961. If the court authorizes the petition, the court may release the child to a parent, MCR 3.965(B)(12)(a), or, if the court finds that returning the child to the home would be contrary to the child’s welfare, order that the child be temporarily placed in foster care, MCR 3.965(B)(12)(b) and (C). The respondent parent can either admit the allegations in the petition or plead no contest to them. MCR 3.971. Alternatively, the respondent may demand a trial (i.e., an adjudication) and contest the merits of the petition. MCR 3.972. If a trial is held, the respondent is entitled to a jury, MCR 3.911(A), the rules of evidence generally apply, MCR 3.972(C), and the petitioner has the burden of proving by a preponderance of the evidence one or more of the statutory grounds for jurisdiction alleged in the petition, MCR 3.972(E). When the petition contains allegations of abuse or neglect against a parent, MCL 712A.2(b)(l), and those allegations are proved by a plea or at the trial, the adjudicated parent is unfit. While the adjudicative phase is only the first step in child protective proceedings, it is of critical importance because “[t]he procedures used in adjudicative hearings protect the parents from the risk of erroneous deprivation” of their parental rights. Brock, 442 Mich at 111. Once a court assumes jurisdiction over a child, the parties enter the dispositional phase. Unlike the adjudicative phase, here the rules of evidence do not apply, MCR 3.973(E), and the respondent is not entitled to a jury determination of facts, MCR 3.911(A). The purpose of the dispositional phase is to determine “what measures the court will take with respect to a child properly within its jurisdiction and, when applicable, against any adult. . . .” MCR 3.973(A) (emphasis added). The court’s authority to enter these orders is found in MCL 712A.6. The court has broad authority in effectuating dis-positional orders once a child is within its jurisdiction. In re Macomber, 436 Mich 386, 393-399; 461 NW2d 671 (1990). And while the court’s dispositional orders must be “appropriate for the welfare of the juvenile and society in view of the facts proven and ascertained,” MCL 712A.18(1), the orders are afforded considerable deference on appellate review, see In re Cornet, 422 Mich 274, 278-279; 373 NW2d 536 (1985) (adopting the clear-error standard of review for dispositional orders). If certain requirements are met, the court can terminate parental rights at the initial dispositional hearing, MCR 3.977(E); otherwise, the court continues to conduct periodic review hearings and may enter orders that provide for services, direct the child’s placement, and govern visitation, MCR 3.973(F); MCR 3.974; MCR 3.975. Before the court enters any order of disposition, however, the DHS must prepare a case service plan that includes a “[s]chedule of services to be provided to the parent... to facilitate the child’s return to his or her home....” MCL 712A.18f(3)(d). That case service plan must also “provide for placing the child in the most family-like setting available and in as close proximity to the child’s parents’ home as is consistent with the child’s interests and special needs.” MCL 712A.18f(3). The court examines the case service plan pursuant to MCL 712A.18f(4) and MCR 3.973(F)(2), and frequently adopts the DHS’s case service plan and orders compliance with the services contained in the plan. Ultimately, the dispositional phase ends with a permanency planning hearing, which results in either the dismissal of the original petition and family reunification or the court’s ordering the DHS to file a petition for the termination of parental rights. C. THE ONE-PARENT DOCTRINE Because the jurisdictional inquiry is focused on the child, once there has been an adjudication, either by trial or by plea, the court has jurisdiction over the child regardless of whether one or both parents have been adjudicated unfit. MCL 712A.2(b). In cases in which jurisdiction has been established by adjudication of only one parent, the one-parent doctrine allows the court to then enter dispositional orders affecting the parental rights of both parents. The one-parent doctrine is the result of the Court of Appeals’ interpretation of Sub-chapter 3.900 of the Michigan Court Rules in CR: [0]nce the family court acquires jurisdiction over the children, [MCR 3.973(A)] authorizes the family court to hold a dispositional hearing “to determine [what] measures [the court will take] ... against any adult. ...” [MCR 3.973(F)(2)] then allows the family court to “order compliance with all or part of the case service plan and [...] enter such orders as it considers necessary in the interest of the child.” Consequently, after the family court found that the children involved in this case came within its jurisdiction on the basis of [the adjudicated parent’s] no-contest plea and supporting testimony at the adjudication, the family court was able to order [the unadjudicated parent] to submit to drug testing and to comply with other conditions necessary to ensure that the children would be safe with him even though he was not a respondent in the proceedings. This process eliminated the [petitioner’s] obligation to allege and demonstrate by a preponderance of legally admissible evidence that [the unadjudicated parent] was abusive or neglectful within the meaning of MCL 712A.2(b) before the family court could enter a dispositional order that would control or affect his conduct. [CR, 250 Mich App at 202-203.] In simpler terms, the one-parent doctrine permits courts to obtain jurisdiction over a child on the basis of the adjudication of either parent and then proceed to the dispositional phase with respect to both parents. The doctrine thus eliminates the petitioner’s obligation to prove that the unadjudicated parent is unfit before that parent is subject to the dispositional authority of the court. D. CONSTITUTIONAL PARENTAL RIGHTS The Fourteenth Amendment of the United States Constitution provides that “[n]o State shall. . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” US Const, Am Xiy § 1. Included in the Fourteenth Amendment’s promise of due process is a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Washington v Glucksberg, 521 US 702, 720; 117 S Ct 2258; 138 L Ed 2d 772 (1997). Among these fundamental rights is the right of parents to make decisions concerning the care, custody, and control of their children. See Meyer v Nebraska, 262 US 390, 399-400; 43 S Ct 625; 67 L Ed 1042 (1923). In the words of this Court, “[p]arents have a significant interest in the companionship, care, custody, and management of their children, and the interest is an element of liberty protected by due process.” In re JK, 468 Mich 202, 210; 661 NW2d 216 (2003), citing Brock, 442 Mich at 109. The right to parent one’s children is “essential to the orderly pursuit of happiness by free men,” Meyer, 262 US at 399, and “is perhaps the oldest of the fundamental liberty interests,” Troxel v Granville, 530 US 57, 65; 120 S Ct 2054; 147 L Ed 2d 49 (2000) (opinion by O’Connor, J.). The right is an expression of the importance of the familial relationship and “stems from the emotional attachments that derive from the intimacy of daily association” between child and parent. Smith v Org of Foster Families for Equality & Reform, 431 US 816, 844; 97 S Ct 2094; 53 L Ed 2d 14 (1977). A parent’s right to control the custody and care of her children is not absolute, as the state has a legitimate interest in protecting “the moral, emotional, mental, and physical welfare of the minor” and in some circumstances “neglectful parents may be separated from their children.” Stanley v Illinois, 405 US 645, 652; 92 S Ct 1208; 31 L Ed 2d 551 (1972) (quotation marks and citation omitted). The United States Constitution, however, recognizes “a presumption that fit parents act in the best interest of their children” and that “there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of [fit parents] to make the best decisions concerning the rearing of [their] children.” Troxel, 530 US at 68-69 (opinion by O’Connor, J.). Further, the right is so deeply rooted that “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents . . . .” Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982). The United States Supreme Court has also recognized that due process demands that minimal procedural protections be afforded an individual before the state can burden a fundamental right. In Mathews v Eldridge, the Supreme Court famously articulated a three-part balancing test to determine “what process is due” when the state seeks to curtail or infringe an individual right: [I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute proce dural requirement would entail. [Mathews v Eldridge, 424 US 319, 333, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976).] In essence, the Eldridge test balances the costs of certain procedural safeguards — here, an adjudication — against the risks of not adopting such procedures. The Supreme Court has regularly employed the Eldridge test to determine the nature of the process due in child protective proceedings in related contexts. See Santosky, 455 US at 758 (“Evaluation of the three Eldridge factors compels the conclusion that use of a ‘fair preponderance of the evidence’ standard in [parental rights termination] proceedings is inconsistent with due process.”); Smith, 431 US at 848-852 (addressing New York City’s procedures for removing a minor from a foster home). Our due process inquiry is also informed by Stanley v Illinois, a pre-Eldridge case in which the Supreme Court held that the Fourteenth Amendment demands that a parent be entitled to a hearing to determine the parent’s fitness before the state can infringe the right to direct the care, custody, and control of his or her children. Stanley, 405 US at 649. Stanley addressed an Illinois statutory scheme that declared the children of unmarried fathers, upon the death of the mother, to be dependents (i.e., wards of the state) without a fitness hearing at which neglect was proved. The Stanley Court found this scheme to be constitutionally infirm because it allowed the state to deprive Stanley of custody without first determining that he was unfit at a hearing: Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand. ... The State’s interest in caring for Stanley’s children is de minimis if Stanley is shown to be a fit father. [It] insists on presuming rather than proving Stanley’s unfitness solely because it is more convenient to presume than to prove. Under the Due Process Clause that advantage is insufficient to justify refusing a father a hearing when the issue at stake is the dismemberment of his family. [Id. at 656-658.] The rule from Stanley is plain: all parents “are constitutionally entitled to a hearing on their fitness before their children are removed from their custody.” Id. at 658. III. ANALYSIS At the onset, we note that the Court of Appeals’ interpretation in CR of MCL 712A.6 and MCR 3.973(A) would seemingly grant trial courts unfettered authority to enter dispositional orders, as long as the court finds them to be in the child’s best interests. This Court, however, has a duty to interpret statutes as being constitutional whenever possible. Taylor, 468 Mich at 6. Thus, if the Court of Appeals’ interpretation permits trial courts to exercise their jurisdiction in a manner that impermissibly interferes with a parent’s constitutional right to direct the care and custody of his or her child, as Laird argues, we are duty-bound to reject it. A. THE ONE-PARENT PROBLEM Laird’s primary argument is that the one-parent doctrine is unconstitutional because it allows courts to infringe the rights of unadjudicated parents to direct the care, custody, and control of their children without an adjudication that those parents are unfit. According to Laird, the facts of this case well illustrate the flaws inherent in the one-parent doctrine in practice. After the DHS filed the neglect petition, Sanders entered a no-contest plea to the allegations against her. This allowed the court to assume jurisdiction over Laird’s children. The DHS did not pursue any allegations against Laird, despite his demand for a trial. His fitness was never the subject of any hearing, and he was never adjudicated as unfit. Nevertheless, the court refused to grant Laird custody of his children and instead ordered him to comply with services ordered as part of the dispositional plan. Laird contends that this process — the one-parent doctrine at work — is forbidden by Stanley. The DHS responds that Laird was afforded all the process that he was due by virtue of the dispositional proceedings. According to the DHS, the dispositional phase obviates an unadjudicated parent’s right to a fitness hearing. As the Court of Appeals explained in CR, its interpretation of MCR 3.973(A) permits the trial court to enter dispositional orders affecting the rights of “any adult,” including the parental rights of unadjudicated parents, as long as the court has established jurisdiction over the child. CR, 250 Mich App at 202-203. Because we have a duty to interpret statutes and court rules as being constitutional whenever possible, we reject any interpretation of MCL 712A.6 and MCR 3.973(A) that fails to recognize the unique constitutional protections that must be afforded to unadjudicated parents, irrespective of the fact that they meet the definition of “any adult.” Stanley is plain that Laird’s right to direct the care, custody, and control of his children is a fundamental right that cannot be infringed without some type of fitness hearing. We therefore begin our analysis by testing the DHS’s contention that a dispositional hearing is a constitutionally sufficient process in light of the Eldridge factors. We conclude that under Eldridge, dispositional hearings are constitutionally inadequate; due process requires that every parent receive an adjudication hearing before the state can interfere with his or her parental rights. First, the importance of the private interest at stake here — a parent’s fundamental right to direct the care, custody, and control of his or her child free from governmental interference — cannot be overstated. It is a core liberty interest recognized by the Fourteenth Amendment. “Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.” Santosky, 455 US at 753. With respect to the second and third Eldridge factors, it is undisputed that the state has a legitimate and important interest in protecting the health and safety of minors and, in some circumstances, that the interest will require temporarily placing a child with a nonparent. Stanley, 405 US at 652. It is this interest that lies at the heart of the state’s parens patriae power. But this interest runs parallel with the state’s interest in maintaining the integrity of the family unit whenever possible. MCL 712A.1(3) (“This chapter shall be liberally construed so that each juvenile coming within the court’s jurisdiction receives the care, guidance, and control, preferably in his or her own home, conducive to the juvenile’s welfare and the best interest of the state.”) (emphasis added); Stanley, 405 US at 652-653 (“[I]f Stanley is a fit father, the State spites its own articulated goals when it needlessly separates him from his family.”); Troxel, 530 US at 68-69 (opinion by O’Connor, J.) (“[S]o long as a parent adequately cares for . . . [his or her] children, there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of [his or her] children.”); Santosky, 455 US at 766-767 (“[W]hile there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not severance, of natural familial bonds.”). When a child is parented by a fit parent, the state’s interest in the child’s welfare is perfectly aligned with the parent’s liberty interest. But when a father or mother is erroneously deprived of his or her fundamental right to parent a child, the state’s interest is undermined as well: “[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents.” Stanley, 405 US at 652. In other words, the state ordinarily has an equally strong interest in ensuring that a parent’s fitness, or lack thereof, is resolved before the state interferes with the parent-child relationship. Thus, the probable value of extending the right to an adjudication to each parent in a child protective proceeding benefits both public and private interests alike. There is no doubt that requiring adjudication of each parent will increase the burden on the state in many cases. But there is also little doubt that an adjudication would significantly reduce any risk of a parent’s erroneous deprivation of the parent’s right to parent his or her children. The trial is the only fact-finding phase regarding parental fitness, and the procedures afforded respondent parents are tied to the allegations of unfitness contained in the petition. As this Court has stated, “The procedures used in adjudicative hearings protect the parents from the risk of erroneous deprivation” of their parental rights. Brock, 442 Mich at 111. Dispositional hearings simply do not serve this same function. At the dispositional phase, the court is concerned only with what services and requirements will be in the best interests of the children. There is no presumption of fitness in favor of the unadjudicated parent. See MCL 712A.18f. The procedures afforded parents during the dispositional phase are not related to the allegations of unfitness because the question a court is answering at a dispositional hearing assumes a previous finding of parental unfitness. While extending the right to an adjudication to all parents before depriving them of the right to direct the care, custody, and control of their children will impose additional burdens on the DHS, those burdens do not outweigh the risks associated with depriving a parent of that right without any determination that he or she is unfit, as the one-parent doctrine allows. Thus, consideration of the procedures afforded parents at the dispositional phase in light of the Eldridge factors requires us to reject the DHS’s primary argument. We also find unpersuasive the DHS’s position that adjudication of one parent offers sufficient process to the other parent. An unadjudicated parent is not entitled to contest any allegations made against him or her at the other parent’s adjudication hearing because the unadjudicated parent is not a party to that proceeding. While an unadjudicated parent can hope that the respondent parent is willing to vigorously contest the allegations made in the petition, as the facts here demonstrate, the unadjudicated parent will often be disappointed. The respondent parent may enter a plea, as is his or her right, or may choose not to defend the allegations as vigorously as the unadjudicated parent would prefer. Moreover, as a nonparty to those proceedings, it is difficult to see how an unadjudicated parent could have standing to appeal any unfavorable ruling. We find similarly unconvincing the argument that the state is relieved of its initial adjudication burden because unadjudicated parents may have the opportunity to have their parental rights restored during the dispositional phase, if the unadjudicated parents have complied with the case services plan or court orders, or both, during the dispositional phase. The DHS’s argu ment puts the plow before the mule. The possibility of a fix at the back end is not sufficient to justify a lack of process at the front end. Rather, the state must adjudicate a parent’s fitness before interfering with his or her parental rights. Stanley, 405 US at 658. The arguments made by the DHS echo an argument the state of Illinois made in Stanley: because Stanley might have been able to regain custody of his children as a guardian or through adoption proceedings, no harm was done. Id. at 647. The Court disagreed: This Court has not... embraced the general proposition that a wrong may be done if it can be undone. Surely, in the case before us, if there is a delay between the doing and the undoing [Stanley] suffers from the deprivation of his children, and the children suffer from uncertainty and dislocation. [Id. (citation omitted).] The same is true here. The state cannot deprive an unadjudicated parent of his or her constitutional parental rights simply because those rights may be restored at some future date. The Constitution demands more. B. MOOTNESS Finally, we decline the DHS’s invitation to dismiss this case as moot because Laird is currently incarcerated for violating federal drug-trafficking laws. An incarcerated parent can exercise the constitutional right to direct the care of his or her children while incarcerated, and Laird has tried to do just that. For example, an incarcerated parent can choose who will care for his children while he is imprisoned. In re Mason, 486 Mich at 161 n 11 (“Michigan traditionally permits a parent to achieve proper care and custody through placement with a relative.”). At several times during the proceedings below, Laird requested that the children be placed with his mother, the children’s parental grandmother. As long as the children are provided adequate care, state interference with such decisions is not warranted. As a result, Laird’s complaint is not moot. IV CONCLUSION We recognize that the state has a legitimate — and crucial — interest in protecting the health and safety of minor children. That interest must be balanced, however, against the fundamental rights of parents to parent their children. Often, these considerations are not in conflict because “there is a presumption that fit parents act in the best interests of their children.” Troxel, 530 US at 68 (opinion by O’Connor, J.). When the state is concerned that neither parent should be entrusted with the care and custody of their children, the state has the authority — and the responsibility — to protect the children’s safety and well-being by seeking an adjudication against both parents. In contrast, when the state seeks only to deprive one parent of the right to care, custody and control, the state is only required to adjudicate that parent. In this case, for example, there was no constitutional or jurisdictional impediment to disrupting the parental rights of Sanders, who was afforded the right to a determination of fitness. Adjudication protects the parents’ fundamental right to direct the care, custody, and control of their children, while also ensuring that the state can protect the health and safety of the children. Admittedly, in some cases this process may impose a greater burden on the state than would application of the one-parent doctrine because “[procedure by presumption is always cheaper and easier than individualized determination.” Stanley, 405 US at 656-657. But as the United States Supreme Court made clear in Eldridge, constitutional rights do not always come cheap. The Constitution does not permit the state to presume rather than prove a parent’s unfitness “solely because it is more convenient to presume than to prove.” Stanley, 405 US at 658. We accordingly hold that due process requires a specific adjudication of a parent’s unfitness before the state can infringe the constitutionally protected parent-child relationship. In doing so, we announce no new constitutional right. Rather, we affirm that an old constitutional right — a parent’s right to control the care, custody, and control of his or her children — applies to everyone, which is the very nature of constitutional rights. Because the one-parent doctrine allows the court to deprive a parent of this fundamental right without any finding that he or she is unfit, it is an unconstitutional violation of the Due Process Clause of the Fourteenth Amendment. We therefore overrule In re CR, vacate the order of the trial court, and remand this case to the trial court for further proceedings consistent with this opinion. Young, C.J., and Cavanagh, Kelly, and Zahra, JJ., concurred with McCORMACK, J. Consistently with the court rule governing pretrial placement of children in child protective proceedings, the DHS temporarily placed the children with their aunt. See MCR 3.965(C)(2) (“ If continuing the child’s residence in the home is contrary to the welfare of the child, the court shall not return the child to the home, but shall order the child placed in the most family-like setting available consistent with the child’s needs.”). After this Court granted leave to appeal, Laird was convicted in federal court of drug-trafficking charges. See 21 USC 841(a)(1) and (b)(1)(B). While a petition is the ordinary route by which child protective proceedings begin, the juvenile code also recognizes that exigent circumstances can require immediate action. See MCL 712A.14a(l) (authorizing the immediate removal of a child without a court order “[i]f there is reasonable cause to believe that a child is at substantial risk of harm or is in surroundings that present an imminent risk of harm and the child’s immediate removal from those surroundings is necessary to protect the child’s health and safety”); see also MCL 712A.14b(l)(a) (allowing an ex parte order authorizing the DHS to immediately take a child into protective custody before any hearing if a petition alleges a similar “imminent risk of harm”). Among other things, the petition must contain a request for termination, there must he adequate grounds for the court’s jurisdiction, and the court must find by clear and convincing legally admissible evidence that grounds exist for termination under MCL 712A.19b(3). We note that the statute providing for case service plans, MCL 712A.18f, does not distinguish between adjudicated parents and unadjudicated parents. CR was decided when the court rules governing child protective proceedings and other proceedings relating to minors were located in former Subchapter 5.900 of the Michigan Court Rules. References to and quotations of former Subchapter 5.900 in CR have been updated to reflect the rules currently found in Subchapter 3.900. Under then-existing Illinois law, the state could take custody of a child in a dependency proceeding or in a neglect proceeding. “In a dependency proceeding [the state] may demonstrate that the children are wards of the State because they have no surviving parent or guardian. In a neglect proceeding it may show that children should be wards of the State because the present parent(s) or guardian does not provide suitable care.” Stanley, 405 US at 649 (citations omitted). The statute defined “parents” as “ ‘the father and mother of a legitimate child, or the survivor of them, or the natural mother of an illegitimate child, and includes any adoptive parent,’ ” but did not include unmarried fathers. Id. at 650. Thus, the statute did not recognize Stanley as a parent, and it did not require the state to prove that Stanley was unfit in a neglect proceeding in order to deprive him of custody of his children. The dissent also emphasizes that MCL 712A.2(b)(l) refers singularly to “parent.” This reference is consistent with the unremarkable idea that courts may assume jurisdiction over a child on the basis of the adjudication of one parent. Laird’s challenge to the one-parent doctrine does not challenge this proposition because the one-parent doctrine is not con cerned with the assumption of jurisdiction. In this case, for example, the trial court properly assumed jurisdiction over the children on the basis of Sanders’s plea. See MCR 3.971. Rather than challenge the assumption of jurisdiction, Laird argues that the court’s exercise of jurisdiction affecting his constitutional parental rights — that is, the one-parent doctrine at work — is an unconstitutional interference with those rights. To he clear, Laird’s parental rights were not and have not been terminated. Nevertheless, temporary deprivation of custody is an “intrusion into the family sphere,” Hunter v Hunter, 484 Mich 247, 269; 771 NW2d 694 (2009), and plainly infringes on Laird’s constitutional rights as a parent, see Troxel, 530 US at 68 (opinion by O’Connor, J.) (recognizing that parental rights are implicated in grandparent-visitation cases). MCR 3.973(A) states that, at a dispositional hearing, the court determines what measures it will take regarding the child “and, when applicable, against any adult, once the court has determined following trial, plea of admission, or plea of no contest that one or more of the statutory grounds alleged in the petition are true.” While the parties have focused on the constitutional implications of interpreting the phrase “any adult” as the Court of Appeals did in CR, 250 Mich App at 202-203, we note that the phrase “when applicable” can reasonably — and constitutionally — be interpreted to mean that when the person meeting the definition of “any adult” is a presumptively fit parent, the court’s authority during the dispositional phase is limited by the fact that the state must overcome the presumption of parental fitness by proving the allegations in the petition. We agree with the dissent that there is, of course, a second private interest that is always relevant in child protective proceedings — the child’s interest in his or her own welfare. If a parent is unfit, the child’s interest aligns with the state’s parens patriae interest. On the other hand, the child also has an interest in remaining in his or her natural family environment. In which direction the child’s interest preponderates cannot he known without first a specific adjudication of a parent’s unfitness, as “the State cannot presume that a child and his parents are adversaries.” Santosky, 455 US at 760. Rather, only “[ajfter the State has established parental unfitness . . . [may] the court.. . assume at the dispositional stage that the interests of the child and the natural parents do diverge.” Id. Of course, when a minor faces an imminent threat of harm, the state’s interest in the welfare of the child is paramount. In the case of an imminent threat of harm, the state may take the child into custody without prior court authorization or parental consent. See, e.g., Tenenbaum v Williams, 193 F3d 581, 593-594 (CA 2, 1999). And as noted in footnote 3 of this opinion, Michigan law allows exactly that process. See MCL 712A.14a(l); MCL 712A.14b(l)(a). Requiring an imminent threat of harm for removal is constitutionally sound: as the Second Circuit recognized in Tenenbaum, “ ‘[T]he mere “possibility” of danger is not enough.’ ” Tenenbaum, 193 F3d at 594 (citation omitted; alteration in original). Similarly, upon the authorization of a child protective petition, the trial court may order temporary placement of the child into foster care pending adjudication if the court finds that placement in the family home would be contrary to the welfare of the child. MCR 3.965(B)(12)(b) and (C). Because our holding only reaches the court’s exercise of its postadjudication dispositional authority, it should not be interpreted as preventing courts from ordering temporary foster-care placement pursuant to MCR 3.965(B)(12)(b) and (C). The risk of error is not limited to the erroneous interference with a parent’s right to parent. Oftentimes, pursuant to the one-parent doctrine, services will be ordered for the unadjudicated parent. Absent some fact-finding regarding that parent’s alleged neglectful or abusive conduct, however, the DHS cannot reasonably be expected to formulate an individualized plan, resulting in unadjudicated parents being ordered to comply with potentially unnecessary and costly service plans. Ideally, the removal of the child at the dispositional hearing would always involve a finding that the child’s parents are unfit, as the dissent suggests. The statutes and court rules governing the dispositional phase, however, simply do not demand any fitness determination. And because the “[t]he court may order compliance with all or part of the case service plan and may enter such orders as it considers necessary in the interest of the child,” MCR 3.973(F)(2), the one-parent doctrine results in the unadjudicated parent’s rights being subordinated to the court’s best-interest determination. The dissent suggests that we have found a constitutional right to a jury trial in child protective proceedings. This misunderstands our opinion, as we have found no such constitutional right. Rather, we simply hold that due process requires a specific adjudication of a parent’s unfitness and that the one-parent doctrine is unconstitutional because it deprives unadjudicated parents of this right. The right to a jury is granted by statute. MCL 712A.17(2) (“Except as otherwise provided in this subsection, in a hearing other than a criminal trial under this chapter, a person interested in the hearing may demand a jury of 6 individuals, or the court, on its own motion, may order a jury of 6 individuals to tiy the case.”). Because Laird is constitutionally entitled to a fitness hearing, MCL 712A.17(2) affords him the statutory right to demand a jury because a parental-fitness hearing qualifies as a noncriminal hearing under the juvenile code. We express no opinion about whether the jury guarantee in MCL 712A.17(2) is constitutionally required. For example, the trial court must order the child returned home at the permanency planning hearing unless the court determines that he or she is likely to he harmed if placed with the parent. MCL 712A.19a(l); MCR 3.976(E)(2). According to the dissent, a decision not to return the child to the parent’s home necessarily entails a determination that the unadjudicated parent is unfit, thus ensuring that fit parents are not deprived of custody. What the dissent fails to recog nize, however, is that there is no similar requirement during the earlier dispositional hearings, see MCR 3.975, and that the unadjudicated parent will have to wait up to a year after the child’s removal before the permanency planning hearing takes place, see MCL 712A.19a(l); MCR 3.976(E)(2). Because we hold that the one-parent doctrine violates the due process rights of unadjudicated parents, we need not consider Laird’s argument that the doctrine also violates the Equal Protection Clause. See, e.g., In re Weldon, 397 Mich 225, 296; 244 NW2d 827 (1976) (“Some parents, however, because of illness, incarceration, employment or other reason, entrust the care of their children for extended periods of time to others. This they may do without interference by the state as long as the child is adequately cared for.”) (opinion by Levin, J.), overruled in part on other grounds by Bowie v Arder, 441 Mich 23, 47; 490 NW2d 568 (1992); In re Curry, 113 Mich App 821, 826-827; 318 NW2d 567 (1982) (“Until there is a demonstration that the person entrusted with the care of the child by that child’s parent is either unwilling or incapable of providing for the health, maintenance, and well being of the child, the state should be unwilling to interfere.”).
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ZAHRA, J. In this case we are called on to examine the meaning of MCL 750.414, the misdemeanor joyriding statute, in the context of MCL 500.3113(a), which excludes certain individuals from entitlement to personal protection insurance benefits (commonly known as “PIP benefits”) under the no-fault act. Specifically, under MCL 500.3113(a), a person who was injured while “using a motor vehicle or motorcycle which he or she had taken unlawfully,” is not entitled to PIP benefits. We recently examined these statutory provisions in Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich. We held that 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 Code — including MCL 750.413 and MCL 750.414, infor mally known as the ‘joyriding’ statutes — has taken the vehicle unlawfully for purposes of MCL 500.3113(a).” Unlike Spectrum Health, the present case does not involve the taking of a vehicle against the express prohibition of the vehicle owner. Rather, plaintiff presented evidence that, in his view, showed that the person who granted him permission to take the motorcycle on which he was injured was the rightful owner. Against this background, we examine whether MCL 750.414, which makes it a misdemeanor to take or use a vehicle without authority of its owner, is a strict liability crime for purposes of applying MCL 500.3113(a). We hold that MCL 750.414 is not a strict liability crime and that it contains a mens rea element that the taker must intend to take a vehicle “without authority.” Accordingly, we affirm the Court of Appeals’ decision insofar as it holds that plaintiff is entitled to PIP benefits if the evidence establishes he did not know the motorcycle he had taken was stolen. We nonetheless disagree with the Court of Appeals’ conclusion that plaintiff was entitled to a finding as a matter of law that he did not take the motorcycle unlawfully, given the circumstantial evidence presented in this case. The Court of Appeals improperly made findings in regard to the facts of this case that were still very much in dispute. We affirm in part and reverse in part the opinion of the Court of Appeals, and remand to the circuit court for further proceedings consistent with this opinion. I. BASIC FACTS AND PROCEEDINGS Plaintiff Lejuan Rambin filed a complaint in circuit court against Allstate Insurance Company (Allstate) and Titan Insurance Company (Titan), claiming PIP benefits pursuant to the Michigan No Fault Act, MCL 500.3105 et seq. Plaintiff alleged that on August 23, 2009, he sustained bodily injury when the motorcycle he was operating was involved in an accident. In the complaint, plaintiff admitted that he did not own a motor vehicle at the time of the accident, and that the motorcycle he was riding was owned by and registered to Scott Hertzog. Plaintiff noted that the car involved in the accident was also uninsured. Plaintiff nonetheless averred that Scott Hertzog owned a car that was insured by Allstate. Plaintiff asserted a right to PIP benefits from Allstate, but Allstate denied his claim. Plaintiff alternatively alleged that if Allstate was not the responsible insurer, he was entitled to PIP benefits from Titan, the insurer to which the claim was assigned by the Michigan Assigned Claims Facility (ACF). After the parties had engaged in discovery, including taking plaintiffs deposition, Titan filed a motion for summary disposition, arguing that plaintiff is barred from recovery of PIP benefits if he was involved in the theft of the motorcycle. Allstate likewise filed a motion for summary disposition claiming plaintiff had taken the motorcycle unlawfully, and was thus barred from recovery of PIP benefits by MCL 500.3113(a). Not to be left out, plaintiff also filed a motion for summary disposition. Plaintiff maintained that discovery had revealed several facts, many of which he claimed were “undisputed.” Plaintiff asserted that, in June 2009, he joined the Phantom Motorcycle Club though he did not own a motorcycle. On August 4, 2009, Scott Hertzog’s motorcycle was stolen. On August 22, 2009, members of the club informed plaintiff that he needed a motorcycle to participate in the club ride that night. Plaintiff claimed that a person named Andre Smith offered to loan him a motorcycle for the club ride. Plaintiff claims that on August 22, 2009, at 7:00 p.m., he went to a house on Kentfield in Detroit, where Andre Smith handed plaintiff the keys to the motorcycle and told him that he could use the motorcycle for the club ride. On August 23, 2009, at approximately 1:20 a.m., plaintiff collided with an uninsured automobile while operating the motorcycle he had taken from Andre Smith. Following the accident, plaintiff informed police that he had borrowed the motorcycle from a friend, Andre Smith, who lived on Kentfield. Plaintiff, however, was unable to inform the police which house Andre resided in and plaintiff was unable to provide the police any information to reach Andre. The circuit court issued an order that granted summary disposition in favor of Allstate and Titan. Plaintiff appealed as of right the court’s decision in the Court of Appeals. Before the Court of Appeals, plaintiff maintained that he did not unlawfully take the motorcycle and that he had a reasonable belief that he was entitled to take and use it. Plaintiff claimed that he did not take the motorcycle with the willful intent to do so unlawfully or with knowledge that he lacked authority. The Court of Appeals reversed the circuit court’s grant of summary disposition to Allstate and Titan, holding “that plaintiff did not take [the motorcycle] unlawfully [within the meaning of] MCL 500.3113(a).” The Court of Appeals concluded that, “[i]n this case, there is no dispute that plaintiff did not take the [motorcycle] in violation of the Michigan Penal Code, and that, viewed from plaintiff’s (the driver’s) perspective, there was no ‘unlawful taking.’ ” The Court of Appeals further concluded that based on the record evidence, there was no genuine issue of material fact that plaintiff did not take the motorcycle unlawfully, and it remanded the case to the trial court for further proceedings. Allstate applied for leave to appeal in this Court. We directed the Clerk to schedule oral argument on whether to grant the application or take other action. We specifically requested that the parties address whether the plaintiff took the motorcycle on which he was injured “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, see MCL 750.414; People v Laur, 128 Mich App 453 (1983), 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.[ ] II. STANDARD OF REVIEW We review de novo the denial of a motion for summary disposition. A motion for summary disposition under MCR 2.116(C)(10) requires the reviewing court to consider “the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Also, this case involves interpretation of a statute, a question of law that we review de novo on appeal. hi. ANALYSIS A. TAKING UNLAWFULLY UNDER MCL 500.3113 MCL 500.3113 provides: A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed: (a) The 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. In each of the Spectrum Health companion cases, our application of MCL 500.3113(a) was straightforward. The dispositive issue in each case was “whether a person injured while driving a motor vehicle that the person had taken contrary to the express prohibition of the owner may avail himself or herself of [PIP benefits] . . . under the no-fault act, notwithstanding the fact that MCL 500.3113(a) bars a person from receiving PIP benefits for injuries suffered while using a vehicle that he or she ‘had taken unlawfully . . . .’ ” In both cases, the owner had expressly told each person injured while driving the motor vehicle that they could not use the motor vehicle. In essence, we rejected these claims premised on the notion that a person cannot take a vehicle contrary to an owner’s express prohibition and maintain that he or she did not “unlawfully take” the vehicle under MCL 500.3113(a). We concluded that “any person who takes a vehicle contrary to a provision of the Michigan Penal Code — including MCL 750.413 and MCL 750.414, informally known as the ‘joyriding’ statutes — has taken the vehicle unlawfully within the meaning of MCL 500.3113(a).” Because in Spectrum the owners had expressly told each person injured while driving the motor vehicle that they could not use the motor vehicle, we did not have occasion to reach the question whether 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. The facts of the present case stand in contrast to those in Spectrum. Plaintiff 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. In support, he cites People v Laur, which held that MCL 750.414 is a general intent crime. Allstate however maintains that plaintiffs good faith is legally irrelevant because MCL 750.414 is a strict liability crime. Allstate maintains that absent express consent from the actual owner, plaintiff is barred from recovering PIP benefits. 1. LIABILITY FOR CRIMINAL OFFENSES GENERALLY As a general rule, “strict-liability offenses are disfavored.” To that end, “courts will infer an element of criminal intent when an offense is silent regarding mens rea unless the statute contains an express or implied indication that the legislative body intended that strict criminal liability be imposed.” Further, this presumption in favor of a criminal intent or mens rea requirement applies to each element of a statutory crime. This presumption stems from the “[unqualified acceptance of this doctrine by English common law in the Eighteenth Century.” For this reason, the existence of mens rea “ ‘is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.’ ” With this general rule in mind, we examine the language of the statute itself to determine whether the statute imposes strict liability or requires proof of a guilty mind. 2. MCL 750.414 MCL 750.414 provides: Any person who takes or uses without authority any motor vehicle without intent to steal the same, or who is a party to such unauthorized taking or using, is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $1,500.00. However, in case of a first offense, the court may reduce the punishment to imprisonment for not more than 3 months or a fine of not more than $500.00. However, this section does not apply to any person or persons employed by the owner of said motor vehicle or anyone else, who, by the nature of his or her employment, has the charge of or the authority to drive said motor vehicle if said motor vehicle is driven or used without the owner’s knowledge or consent. As this Court noted in Spectrum, “MCL 750.414 contains disjunctive prohibitions: it prohibits someone from ‘tak[ing]’ a motor vehicle ‘without authority’ and, alternatively, it prohibits someone from ‘us[ing]’ a motor vehicle ‘without authority.’ ” Significantly, however, MCL 750.414 expressly precludes “an intent to steal.” Thus, while the statute prohibits the unauthorized use or taking of a motor vehicle, it does not require a showing that the perpetrator intended to permanently deprive the owner of the vehicle. The omission of the “intent to steal” requirement is understood when considering the statute’s historical context: The social problem back of this legislation is well known. When the automobile began to appear and was limited to the possession of a few of the more fortunate members of the community, many persons who ordinarily respected the property rights of others, yielded to the temptation to drive one of these new contrivances without the consent of the owner. This became so common that the term “joyrider” was coined to refer to the person who indulged in such unpermitted use of another’s car.[ ] “ ‘[T]he prevalence of this kind of trespass made it very difficult to secure convictions in cases of outright larceny of motor vehicles, because the claim of an intent to return usually seemed plausible.’ ” Thus, while the “ ‘statutory offense may be designated larceny, the common-law definition of larceny is changed by eliminating the requirement of intent permanently to deprive the owner of his property.’ ” Further, “ ‘[w]hile the elements of the offense depend upon the wording of the statute, they usually consist of taking possession of a vehicle, driving or taking it away, willfulness, and lack of authority; proof of intent to permanently deprive the owner of the property is not required.’ ” We conclude that the phrase “without an intent to steal” in MCL 750.414 reflects the Legislature’s intention to expressly eliminate the common-law requirement in larceny of an intent to permanently deprive the owner of his or her property. However, simply because the Legislature made clear that this specific element of common-law larceny need not he shown to establish this statutory offense does not suggest that the Legislature intended to dispense with mens rea altogether. Indeed, from a historical perspective it is clear that the Legislature used the phrase “without an intent to steal” merely to preclude an offender from arguing he or she lacked the specific intent to permanently deprive the owner of his or her property. The Legislature readily could have substituted the phrase “without an intent to steal” with “without regard to intent” and created a strict liability offense, but it did not. To that end, it is reasonable to infer that the Legislature’s elimination of “an intent to steal” without a complete elimination of intent altogether reflects an intent to retain an element of mens rea. For this reason, we conclude that the phrase “without an intent to steal” is not an express or implied indication that our Legislature intended to dispense with the element of mens rea under MCL 750.414. 3. THE RELATIONSHIP BETWEEN MCL 750.414 AND MCL 750.413 Allstate urges us to consider MCL 750.414 in the context of MCL 750.413, which was first enacted in its current form along with MCL 750.414. MCL 750.413 prohibits a person from “wilfully and without authority, tak[ing] possession of and driv[ing] or takfing] away . . . any motor vehicle, belonging to another . . . .” Allstate contrasts the absence of any express mens rea element in the text of MCL 750.414 with the Legislature’s affirmative placement of such elements in MCL 750.413, a related and similar statute, and asserts that MCL 750.414 must be applied, as written, as a strict liability offense. We reject Allstate’s assertion and conclude that MCL 750.414 is not a strict liability offense. First, as previously discussed, we believe that the Legislature, in stating “without an intent to steal,” intended to eliminate the specific intent to permanently deprive the owner of his or her property. While it is very clear that “an intent to steal” is not an element of this offense, this language does not preclude an understanding of MCL 750.414 that requires an intent to take without authority or an intent to use without authority. Second, MCL 750.413 does not contain prohibitions against both unlawfully taking and unlawfully using an automobile. The statute must be viewed as a whole to determine the existence of an element, of mens rea. Allstate parses MCL 750.414 and mentions only the prohibition relevant under MCL 500.3113, i.e., the unlawful taking. Allstate then compares its selected language under MCL 750.414 to MCL 750.413, but that statute does not likewise prohibit the unlawful use of a vehicle. In short, even though the unlawful use of a vehicle under MCL 750.414 is not relevant under the unlawful taking language in MCL 500.3113, the prohibition against unlawful use is relevant to determining the existence of mens rea under MCL 750.414, which is central to this case. 4. ANALYSIS Considering MCL 750.414 as a whole, we conclude that it properly requires a showing of knowingly taking without authority or knowingly using without authority. There are several indications within the statute that militate toward the existence of the element of mens rea. The phrase “without authority” along with the terms “take” and “use” all plainly have expansive meanings. “Authority” in this context refers to the “right to control, command or determine.” “Take” means “to get into one’s hands or possession by voluntary action.” “Use” means “to employ for some purpose.” By themselves, these terms all contemplate voluntary and knowing conduct on the part of the accused. For 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. And the terms “take” and “use” require at the least some voluntary action. Further, if there were no mens rea element respecting the taking or using of a vehicle, the statute could punish otherwise innocent conduct. Accordingly, we conclude that MCL 750.414 is not the exceptional statute that imposes strict liability, but a statute that corresponds with the common-law rule that presumes mens rea as to each element of the offense. 5. APPLICATION In this case, plaintiff may present evidence to establish that he did not run afoul of MCL 750.414, and thus did not unlawfully take the motorcycle under MCL 500.3113, because he did not knowingly lack authority to take the motorcycle because he believed that he had authority to do so. Stated differently, plaintiffs argument that he did not unlawfully take the motorcycle under MCL 500.3113 is subject to the criminal statute that prohibits an unlawful taking, MCL 750.414, under which plaintiff may present evidence to show that he did not knowingly take the motorcycle without the owner’s authority. B. IMPROPER FACT-FINDING BY THE COURT OF APPEALS Having provided a basis on which plaintiff may present evidence in this case to establish that he did not violate MCL 750.414, and thereby not be excluded from entitlement to PIP benefits under MCL 500.3113, we nonetheless agree with the circuit court’s conclusion that an issue of fact remains with regard to the unlawful taking. The Court of Appeals apparently disregarded the circuit court’s statement and opined that “[t]he material facts are undisputed.” This was clear error. Our review of the lower court record reveals compelling evidence to counter plaintiffs claim that he was not complicit in the unlawful taking of the motorcycle. The circuit court correctly found a question of material fact regarding whether the motorcycle was taken unlawfully. Plaintiff was in possession of a stolen motorcycle only 18 days after it had been stolen. In the early morning hours of August 23, 2009, plaintiff was riding the stolen motorcycle and travelling on the Davison Freeway with another member of the motorcycle club when a car entered the freeway and instantaneously crossed several lanes to cut in front of plaintiffs motorcycle. This action caused plaintiff to lay the motorcycle down and collide with the car. Plaintiff sustained serious and substantial injuries yet neither he nor the other member of his motorcycle club called the police or summoned emergency medical care. To the contrary, the two left the motorcycle on the side of the freeway, fled the scene of the accident and drove to the hospital. At the hospital, plaintiff was eventually confronted by police and he fabricated a story that denied his connection to the motorcycle. Specifically, plaintiff told police he was walking across the freeway on his way home from the bar when he was struck and dragged down the freeway by a car. Plaintiff later recanted his story, claiming that he lied to police only to avoid getting a ticket. When plaintiff finally confessed involvement in the accident involving the stolen motorcycle, he told police that it was an Andre “Smith I presume” who had loaned him the motorcycle. Yet, plaintiff had never met Andre before Andre loaned him the motorcycle, did not have Andre’s phone number, did not know where Andre lived, and did not try to contact Andre after the accident. Plaintiff maintains that it is his belief that the motorcycle remains in the police compound. “Possession of the fruits of a robbery plus certain other facts and circumstances permits the inference that the possessor is the thief.” This evidence is more than sufficient for a reasonable fact-finder to conclude plaintiff knew that the motorcycle had been stolen and violated MCL 750.414. The record also reveals, contrary to the claims of plaintiff, that throughout the proceedings Allstate has maintained that plaintiff did not have express or im plied authority to take the motorcycle. Early on in the proceedings it became clear that “Allstate has asserted that [p]laintiff is barred from collecting PIP benefits pursuant to MCL 500.3113 because he was involved in the theft of the motorcycle that was involved in the accident.” Titan relied on Allstate’s assertion to argue “[i]f Allstate prevails with this argument, [p]laintiff is barred from collecting PIP benefits from any carrier which is involved in this litigation.” Further, Allstate’s brief to the Court of Appeals states: “[p]laintiff claims he came into possession of the stolen Honda motorcycle when he went to the clubhouse of Phantom Motorcycle Club (although he did not have a motorcycle) and one of the club members, Andre (presumably the ubiquitous) ‘Smith,’ told him he could use the subject motorcycle that had been stolen from Scott Hertzog.” Allstate further maintained on appeal that if plaintiff “is successful in overturning the trial court ruling, a factual issue still remains as to whether. . . plaintiff had a reasonable belief that he was entitled to take and use the vehicle based on the suspicious unsupported assertions by plaintiff regarding his possession and use of the motorcycle in question.” Accordingly, for all these reasons we disagree with plaintiff and the Court of Appeals that plaintiffs factual assertions that he did not unlawfully take the motorcycle were undisputed. IV CONCLUSION We conclude that plaintiff may present evidence that he did not knowingly lack authority to take the motorcycle. In the context of this case, such evidence is admissible to establish plaintiff did not run afoul of MCL 750.414, thereby unlawfully taking the motorcycle under MCL 500.3113, because he allegedly took the motorcycle believing that he had authority to do so. We further conclude the Court of Appeals improperly made findings in regard to the facts of this case that were still very much in dispute. We therefore affirm in part and reverse in part the judgment of the Court of Appeals, and remand to the circuit court for further proceedings consistent with this opinion. Young, C.J., and Markman, Kelly, McCormack, and Viviano, JJ., concurred with Zahra, J. Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich, 492 Mich 503; 821 NW2d 117 (2012). Id. at 509 (citation omitted). MCL 500.3114(5) provides that [a] person suffering accidental bodily injury arising from a motor vehicle accident which shows evidence of the involvement of a motor vehicle while an operator or passenger of a motorcycle shall claim personal protection insurance benefits from insurers in the following order of priority: (d) The motor vehicle insurer of the owner or registrant of the motorcycle involved in the accident. See MCL 500.3172(1), which provides, in pertinent part: A person entitled to claim because of accidental bodily injury arising out of the ownership, operation, maintenance, or use of a motor vehicle ... in this state may obtain personal protection insurance benefits through the assigned claims plan if no personal protection insurance is applicable to the injury, no personal protection insurance applicable to the injury can be identified, the personal protection insurance applicable to the injury cannot he ascertained because of a dispute between 2 or more automobile insurers concerning their obligation to provide coverage or the equitable distribution of the loss, or the only identifiable personal protection insurance applicable to the injury is, because of financial inability of 1 or more insurers to fulfill their obligations, inadequate to provide benefits up to the maximum prescribed. To the extent no fault liability was at least in part enacted to reduce litigation, the procedural history of this case would cause one to question whether this end has been achieved. Titan filed an answer to the complaint generally denying plaintiffs allegations, but also filed a cross-complaint against Allstate. In the cross-complaint, Titan acknowledged that the ACF had assigned Titan to provide benefits for plaintiffs no-fault claim as an insurer of last resort, but asserted that Allstate occupied a higher order of priority for payment of plaintiffs benefits. Allstate then filed an answer to plaintiffs complaint generally denying plaintiffs allegations. Allstate also filed an answer to Titan’s cross-complaint in which it acknowledged that it had issued a no-fault policy insuring Scott Hertzog’s motor vehicle, but otherwise denied the allegations that it was the responsible insurer. Allstate then filed a third-party complaint against Auto Club Insurance Association (ACIA) alleging that ACIA had issued a no-fault policy to a member of plaintiffs household that was in effect at the time of the accident, and therefore ACIA occupied a higher order of priority for payment of plaintiffs benefits. ACIA filed an answer to the third-party complaint denying the allegations. Ultimately, the parties stipulated to ACIA’s dismissal. As developed later in this opinion, there are many facts that weigh against plaintiff s claim that he did not know the motorcycle was stolen. See Part III(B) of this opinion. The circuit court, without the benefit of our opinion in Spectrum Health, relied on Amerisure Ins Co v Plumb, 282 Mich App 417; 766 NW2d 878 (2009) when granting judgment against plaintiff. Specifically, the circuit court relied on Plumb’s discussion of an unlawful taking under MCL 500.3113(a). In Plumb, the Court of Appeals did not cite a violation of the Michigan Penal Code (or any other prohibitive law) to establish an unlawful taking under MCL 500.3113(a). Rather, the Plumb Court focused exclusively on whether there was evidence that Plumb had received permission from an owner to take the motor vehicle. The Plumb Court reached this conclusion despite later noting that “[i]f Plumb received the keys from someone who appeared to own the [vehicle], it would have been reasonable for her to believe that she was entitled to take the [vehicle] within the meaning of § 3113(a).” In short, the Plumb Court addressed an unlawful taking under MCL 500.3113(a) in terms of the owner’s perspective. But, as we stated in Spectrum Health, “MCL 500.3113(a) does not contain language regarding an owner’s ‘express or implied consent or knowledge’ because it examines the legality of the taking from the driver’s perspective ... .” Spectrum, 492 Mich at 522. Thus, we disagree with Plumb to the extent it can be read to suggest a person has unlawfully taken a vehicle or motorcycle under the no-fault act solely on the basis that a person takes a vehicle without the owner’s permission. Rather, we reassert the notion that the phrase “taken unlawfully” must be considered from the driver’s perspective. Rambin v Allstate Ins Co, 297 Mich App 679, 702; 825 NW2d 95 (2012). Judge Ronayne Krause issued a separate opinion concurring in part and dissenting in part. Judge Ronayne Krause agreed “with the result reached by the majority.” Id. at 702. The Court of Appeals did not reach the later portion of MCL 500.3113(a), which again provides that “even if an injured person had ‘taken [a motorcycle] unlawfully’ .” MCL 500.3113(a) does not apply if “the person reasonably believed that he or she was entitled to take and use the [motorcycle].” Id. at 703. MCR 7.302(H)(1). Rambin v Allstate Ins Co, 493 Mich 973 (2013). Douglas v Allstate Ins Co, 492 Mich 241, 256; 821 NW2d 472 (2012), citing Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). Id., citing Brown v Brown, 478 Mich 545, 551-552; 739 NW2d 313 (2007). In re MCI Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999). Spectrum, 492 Mich at 508 (emphasis added). Id. at 537. People v Laur, 128 Mich App 453, 455; 340 NW2d 655 (1983). People v Likine, 492 Mich 367, 391; 823 NW2d 50 (2012). Id. at 391-392, quoting People v Kowalski, 489 Mich 488, 499 n 12; 803 NW2d 200 (2011), in turn citing People v Tombs, 472 Mich 446, 452-456; 697 NW2d 494 (2005), United States v X-Citement Video, Inc, 513 US 64; 115 S Ct 464; 130 L Ed 2d 372 (1994), Staples v United States, 511 US 600; 114 S Ct 1793; 128 L Ed 2d 608 (1994), and Morissette v United States, 342 US 246; 72 S Ct 240, 96 L Ed 288 (1952). Tombs, 472 Mich at 454-455. Morrissette, 342 US at 251. Staples, 511 US at 605, quoting United States v United States Gypsum Co, 438 US 422, 436; 98 S Ct 2864; 57 L Ed 2d 854 (1978). Tombs, 472 Mich at 451, citing People v Quinn, 440 Mich 178, 185; 487 NW2d 194 (1992). Spectrum, 492 Mich at 517 n 24. People v Hayward, 127 Mich App 50, 62; 338 Mich App 50 (1983), quoting Perkins on Criminal Law (2d ed), pp 272-273. Id. at 62-63, quoting Perkins on Criminal Law (2d ed), pp 272-273. Id. at 61, quoting 7A Am Jur 2d, Automobiles and Highway Traffic, § 349, at 534-535. Id. at 62, quoting 7A Am Jur 2d, Automobiles and Highway Traffic, § 349, at 534-535. Tombs, 472 Mich at 454-455. 1931 PA 238. Random House Webster’s College Dictionary (1996). Id. Id. Tombs, 472 Mich at 457. X-Citement Video, 513 US at 69. Moreover, the Legislature appears to have recognized that its description of the unlawful use of a motor vehicle under MCL 750.414 was particularly cumbersome in one respect. That is, before it was amended in 2002, former MCL 750.414 “[p]rovided further, That the provisions of this section shall be construed to apply to any person or persons employed by the owner of said motor vehicle or any one else, who, by the nature of his employment, shall have the charge of or the authority to drive said motor vehicle if said motor vehicle is driven or used without the owner’s knowledge or consent.” This provision clearly was intended to ensure that employees using work vehicles would be subject to the same standard as anyone else using someone else’s vehicle. By amending MCL 750.414 through the enactment of 2002 PA 672 the Legislature provided employees much greater latitude to use a work vehicle without the owner’s knowledge or consent. The change, in essence, worked to remove a presumption that operated against allowing an employee any discretion in using an owner’s vehicle, and replaced it with a presumption in favor of an employee’s discretion to use the vehicle in excess of the owner’s knowledge or consent. In our view, the Legislature’s amendment of MCL 750.414 in this respect is entirely consistent with our view that MCL 750.414 contemplates that the unlawful use of a motor vehicle without an owner’s authority may sometimes be a matter of the degree of excessive use. Our Legislature’s recognition of this point in enacting 2002 PA 672 reinforces our conclusion that MCL 750.414 does indeed contain a mens rea requirement. In ruling from the bench, the circuit court expressly stated that “there’s an issue of fact as to the unlawful taking.” People v Gordon, 60 Mich App 412, 418; 231 NW2d 409 (1975). See People v Tutha, 276 Mich 387, 395; 267 NW 867 (1936) (“Possession of stolen property within a short time after it is alleged to have been stolen raises a presumption the party in possession stole it, and this presumption is either weak or strong, depending upon the facts.”), and People v Quigley, 217 Mich 213, 225; 185 NW 787 (1921) (“Possession of recently stolen property, accompanied by an active and hurried effort, under an assumed name, to dispose thereof, is evidence to go to the jury upon the issue of whether the accused stole the same.”).
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ZAHRA, J. In People v Fobb, the Court of Appeals held that an extortion conviction under the “against his will” prong of MCL 750.213 may only be maintained when the act defendant sought to compel entailed “serious consequences” to the victim. This case requires us to revisit the Fobb decision. In the instant case, a jury convicted defendant of extortion after he maliciously threatened to injure a mechanic unless the mechanic resumed working on defendant’s truck in the rain. Defendant, relying on Fobb, maintains that he cannot be convicted of extortion because the act defendant sought to compel — the mechanic’s continued work on the truck — was not of serious consequence to the mechanic. But the plain language of the extortion statute, MCL 750.213, defines extortion in terms of whether the defendant maliciously threatened a person with harm in order to “compel the person so threatened to do .. . any act against his will.” Thus, the Legislature clearly intended the crime of extortion to occur when a defendant maliciously threatens to injure another person with the intent to compel that person to do any act against his will, without regard to the significance or seriousness of the compelled act. Because the defendant’s conduct satisfies the requirements set forth in MCL 750.213, we affirm his conviction of extortion. Furthermore, we overrule the Court of Appeals decisions in People v Fobb and People v Hubbard to the extent that those decisions require that the act or omission compelled by the defendant be of serious consequence to the victim. I. FACTS AND PROCEEDINGS Defendant, James Early Harris, Jr., agreed to pay Willie Lee Neal $400 to fix the transmission on defendant’s truck. Defendant paid $210 in advance, and agreed to tender the balance upon completion of the work. On the afternoon of September 11, 2010, Neal was working on the truck in the shared driveway between defendant’s home and that of his neighbor, Robbin Smith. Smith had just returned home from work, and her mother and aunt were sitting on her front porch. It began to rain, and Smith’s mother invited Neal to sit on Smith’s covered porch to get out of the rain. Smith went inside to prepare a sandwich for Neal. When she returned outside, defendant was on the porch talking to Neal. He was upset that Neal was not repairing the truck. Neal indicated that he would resume working once it stopped raining, but defendant continued to express his displeasure with Neal. Of fended by defendant’s vulgar language, Smith asked defendant to leave her porch. Defendant went into his house and returned with a handgun. Waving the gun, defendant confronted Neal from the side of Smith’s porch. Defendant told Neal that he would “silence him” unless Neal either immediately resumed working on the truck or returned $100 of the prepaid compensation. Neal did neither, but instead indicated that he would rather meet his maker than capitulate to defendant’s demands. The incident upset the three women on the porch. Smith’s mother was in tears. Smith perceived defendant’s actions as a threat, and announced her intention to telephone the police. Defendant went home. He was in the shared driveway carrying a rifle when the police arrived. Defendant was arrested and charged with felonious assault, carrying a dangerous weapon with unlawful intent, assaulting, resisting or obstructing a police officer, and three corresponding counts of carrying a firearm during the commission of a felony (felony-firearm). The felonious assault charge was amended to extortion at the request of the prosecution, and defendant was bound over to circuit court on all counts. A jury found defendant guilty of all counts after a three-day trial. Defendant appealed by right in the Court of Appeals, which affirmed his convictions in a divided, unpublished opinion. The Court of Appeals majority concluded that there was sufficient evidence to support defendant’s extortion conviction. For present purposes, the first two elements of extortion are (1) an oral threat (2) to harm another person. The Court of Appeals reasoned that, because defendant held a gun and threatened Neal that he would “silence him” if Neal did not comply with defendant’s demands, the first two elements of extortion were satisfied. The Court of Appeals rejected defendant’s contention that there was insufficient evidence to satisfy the third element of extortion — that defendant’s threat was intended to compel Neal to perform an act against Neal’s will. The Court of Appeals acknowledged that People v Fobb held that only “serious” acts could support a conviction under the “against his will” prong of the extortion statute, but observed that “nothing in the statutory language of MCL 750.213 requires the action to be serious in nature or have significant value.” The Court of Appeals concluded that defendant’s threat was intended to compel Neal to perform an act against Neal’s will and therefore the third element of MCL 750.213 was satisfied, even under the Fobb standard. Judge O’CONNELL dissented in part, asserting that “ [established precedent required the prosecution to prove that defendant intended to compel Neal to do something that had serious consequences, against Neal’s will.” Because Neal had previously agreed to repair the truck for his own pecuniary benefit, Judge O’CONNELL reasoned that returning to work would not have been against Neal’s will. In his view, neither returning to work nor returning $100 of the prepayment were of “serious consequence” to Neal as required by Fobb. Judge O’CONNELL concluded that although this Court might wish to clarify the elements of extortion and the holding in Fobb, the Court of Appeals panel was bound to follow precedent. Therefore, Judge O’CONNELL would have reversed defendant’s extortion conviction. This Court granted leave to appeal to determine what the prosecution must prove to convict a defendant of extortion and whether the evidence was sufficient to sustain defendant’s conviction. II. STANDARD OF REVIEW Whether the crime of extortion requires that the act compelled of the victim be one having “serious consequences” to the victim is a question of statutory interpretation, which is reviewed de novo. In determining whether sufficient evidence exists to sustain a conviction, this Court reviews the evidence in the light most favorable to the prosecution, and considers whether there was sufficient evidence to justify a rational trier of fact in finding guilt beyond a reasonable doubt. III. ANALYSIS A. INTERPRETING MCL 750.213 As always, the goal of statutory interpretation “ ‘is to ascertain and give effect to the intent of the Legislature. The touchstone of legislative intent is the statute’s language. If the statute’s language is clear and unambiguous, we assume that the Legislature intended its plain meaning and we enforce the statute as written.’ ” At common law, extortion was defined as “the unlawful taking by a public officer, under color of his office, of any money or thing of value that was not due to him, or more than was due, or before it was due.” The origin of statutory extortion, however, is attributed at least in part to the English courts’ refusal to expand the scope of common-law robbery: The English courts had held it to be robbery, where a defendant coerced payment of money or goods by a threat to accuse the victim of sodomy or to destroy a dwelling; however, they refused to extend robbery to threats of other accusations or of other harm to persons or property. Thus, they held it was robbery when the threat was to commit immediate violence, but not robbery where the threat was of violence in the future, or was of destruction of property, or of accusation of crime. This gap in coverage was filled in various ways by the statutory extortion offenses enacted in many jurisdictions.[ ] Michigan was among those jurisdictions that enacted an extortion statute early in its statehood. The current version of the statute, MCL 750.213, provides: Any person who shall, either orally or by a written or printed communication, maliciously threaten to accuse another of any crime or offense, or shall orally or by any written or printed communication maliciously threaten any injury to the person or property or mother, father, husband, wife or child of another with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do or refrain from doing any act against his will, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 20 years or by a fine of not more than 10,000 dollars. The statute has remained largely unchanged since its enactment more than 150 years ago. According to the plain language of the statute, the crime of extortion is complete when a defendant (1) either orally or by a written or printed communication, maliciously threatens (2) to accuse another of any crime or offense, or to injure the person or property or mother, father, spouse or child of another (3) with the intent to extort money or any pecuniary advantage whatever, or with the intent to compel the person threatened to do or refrain from doing any act against his or her will. In the instant case, the prosecution alleged that defendant maliciously threatened to injure Neal with the intent to compel Neal to do an act against his will. Relying on Fobb, defendant maintains that the prosecution failed to prove that he intended to compel Neal to do “any act against his will.” In People v Fobb, the defendant twice telephoned the victim, first complaining that the victim had been spreading lies about the defendant, and then again threatening to sue the victim for $21,000. After the victim hung up the telephone on defendant the second time, the defendant broke through the victim’s locked door and attacked the victim, first choking her and then beating her with a hairdryer. During the attack, the defendant demanded that the victim draft and sign a note admitting that she had spread lies about the defendant. The defendant was convicted of extortion and assault with intent to do great bodily harm less than murder. The Court of Appeals reversed Fobb’s extortion conviction. Although acknowledging that the note was obtained against the victim’s will, the Fobb panel held that the defendant’s extortion conviction should be overturned because “the act required of the victim was minor with no serious consequences to the victim. The note the victim was forced to write was erratic, quixotic and was not used to the victim’s detriment or defendant’s advantage.” The Fobb panel reasoned that “[t]he Legislature did not intend punishment for every minor threat,” and after discussing “an old Tennessee case,” noted “that Michigan cases brought under the ‘against his will’ section of the extortion statutes have been for serious demands.” Despite the lack of any “seriousness” requirement in the plain language of the “against his will” prong of MCL 750.213, Fobb concluded “that the demand by the defendant that the victim execute a useless note was not an offense such as was contemplated by the extortion statute as no pecuniary advantage was obtained nor was the act demanded of such consequence or seriousness as to apply that statute.” In People v Hubbard, the defendant challenged his extortion conviction on the ground that MCL 750.213 is void for vagueness because “the statute allows a defendant to be convicted of extortion after making a minor threat that results in the victim engaging in an action with no serious consequences to the victim.” Relying on its decision in Fobb, the Court of Appeals, reasoned that the Legislature did not intend to punish every minor threat, but only “those threats that result in pecuniary advantage to the individual making the threat or that result in the victim undertaking an action of serious consequence . .. .” Therefore, the Court of Appeals concluded that the statute is not void for vagueness because “the construction afforded the statute by Fobb provides sufficient guidance regarding the nature of the threat and act compelled to ensure that the statute will not be enforced arbitrarily or discriminatorily.” Although Fobb was decided before 1990 and was therefore not binding on subsequent panels of the Court of Appeals, the reaffirmation of Fobb by Hubbard in 1996 rendered it binding on subsequent panels. The Court of Appeals holding in Fobb is contrary to the plain language of MCL 750.213. The statute contains no requirement whatsoever that the act demanded must be of serious consequence to the victim in order to convict a defendant. The “against his will” prong of MCL 750.213 is satisfied when a malicious threat is communicated “with intent to compel the person so threatened to do or refrain from doing any act against his will.” “Any” is defined as: 1. one, a, an, or some; one or more without specification or identification. 2. whatever or whichever it may be. 3. in whatever quantity or number, great or small; some. 4. every; all... [ ] Because “any” is commonly understood to encompass a wide range of things, we conclude that the Legislature intended that MCL 750.213 is satisfied without regard to whether the act required of the victim had “serious consequences.” Indeed, it is difficult to imagine how the Legislature could have cast a broader net given the use of the words “any act” in MCL 750.213. Consequently, the Court of Appeals decision in Fobb requiring that the act demanded be of serious consequence to the victim improperly narrowed the scope of MCL 750.213, and we overrule that aspect of the decision. Relying on this Court’s decision in People v Tombs, defendant urges this Court to maintain the Hubbard panel’s adoption of Fobb’s construction of the extortion statute. In Tombs, the defendant challenged his conviction of distributing or promoting child sexually abusive material under MCL 750.145c(3). This Court addressed the question of whether MCL 750.145c(3) requires that the distribution or promotion of child sexually abusive material be performed with criminal intent. We concluded that despite the absence of an explicit criminal intent requirement in the statutory language, the Legislature’s use of active verbs “supports the presumption that the Legislature intended that the prosecution prove that an accused performed the prohibited act with criminal intent.” Citing the United States Supreme Court decision in United States v X-Citement Video, Inc, the Court reasoned that “if there were no mens rea element respecting the distribution of the material, the statute could punish otherwise innocent conduct.” Accordingly, the Court inferred a criminal intent requirement in the statute. Just as the Court inferred a criminal intent element in the statute in Tombs, the defendant in the instant case urges the Court to retain Fobb’s “serious consequences” construction of MCL 750.213 — as the Court of Appeals did in Hubbard — for the purpose of limiting the scope of the extortion statute. The comparison of the statutory analysis in Tombs to that of instant case is inapposite. Because the language of MCL 750.145c(3) lacked a mens rea requirement, the Tombs Court saved the statute by inferring a criminal intent requirement in the statute. Unlike MCL 750.145c(3), the plain language of the extortion statute passes constitutional muster without any judicial construction. A statute may be challenged for vagueness on three grounds: (1) that it fails to provide fair notice of the conduct proscribed; (2) that it is so indefinite that it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed; or (3) that its coverage is overbroad and impinges on First Amendment protections. The party challenging the constitutionality of a statute bears the burden of proving that the law is unconstitutional. This Court is responsible for upholding both the Michigan and federal constitutions, and our authority to invalidate laws is limited and must be predicated on a clearly apparent demonstration of unconstitutionality. Moreover, laws are presumed constitutional, and this Court must construe a statute as constitutional unless its unconstitutionality is clearly apparent. Because neither Hubbard nor the instant case implicates First Amendment freedoms, the constitutionality of the extortion statute must be examined in light of the particular facts at hand. The pertinent inquiry is whether the extortion statute gives a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited, and also whether the statute provides an explicit standard for those who apply it. In Kolender v Lawson, the United States Supreme Court reasoned that [a]lthough the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of vagueness doctrine “is not actual notice, but the other principal element of the doctrine-the requirement that a legislature establish minimal guidelines to govern law enforcement.” [Smith v Goguen, 415 US 566, 574; 94 S Ct 1242; 39 L Ed 2d 605 (1974)]. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections. Id., at 575."[ ] Thus, the key question is whether the extortion statute provides adequate notice to citizens regarding what conduct is prohibited and sufficient guidance to fact-finders in order to avoid arbitrary enforcement. Hubbard correctly concluded that the Legislature did not intend to punish every minor threat, but it need not have relied on the judicially crafted “serious consequences” construction of the extortion statute to arrive at its conclusion. The Hubbard panel relied on Fobb’s “serious consequences” construction to conclude that the statute provides the fact-finder with sufficient guidance so as not to encourage arbitrary and discriminatory enforcement. But the plain language of the extortion statute itself clearly provides that the Legislature intended punishment for those who “maliciously threaten” others. In other words, the Legislature’s inclusion of a malice requirement provides law enforce ment, judges, and juries with an explicit standard for applying MCL 750.213. Malice is defined as 1. The intent, without justification or excuse, to commit a wrongful act. 2. Reckless disregard of the law or of a person’s legal rights. 3. Ill will; wickedness of heart. This sense is most typical in nonlegal contexts.[ ] Therefore, only those threats made with the intent to commit a wrongful act without justification or excuse, or made in reckless disregard of the law or of a person’s legal rights, rise to the level necessary to support an extortion conviction. Defendant’s vagueness challenge in Hubbard was premised on the theory that MCL 750.213 conferred unlimited discretion on the trier of fact to determine whether extortion had been committed. Thus, the panel did not address whether the statute provides a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he or she may act accordingly. With regard to whether a person of ordinary intelligence is afforded a reasonable opportunity to know what is prohibited by the extortion statute, the Court of Appeals opinion in People v Boomer is insightful. In Boomer, the Court of Appeals addressed the constitutionality of MCL 750.337, which provides: Any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor. Given the lack of any restrictive language to limit or guide a prosecution for “indecent, immoral, obscene, vulgar or insulting language,” the Court of Appeals concluded that “[allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction.” Because the statute failed to provide fair notice of the scope of conduct it prohibited, and also because it encouraged arbitrary and discriminatory enforcement, the Court of Appeals held that the statute was facially vague. Central to its analysis, the panel reasoned that the statute’s failure to provide fair notice of the conduct proscribed was due at least in part to the subjective nature of the statutory language. The Court of Appeals noted that even inferring a reasonable person standard would require every person who speaks audibly where children are present to guess what a law enforcement officer might consider too indecent, immoral, or vulgar for a child’s ears. Children aside, it is far from obvious what the reasonable adult considers to be indecent, immoral, vulgar, or insulting. As a result, a judicially imposed “reasonable person” limitation would not, in our opinion, cure the vagueness of the statute.[ ] In light of the reasoning in Boomer, the Hubbard panel’s adoption of Fobb’s “serious consequences” construction actually exposes the extortion statute to a vagueness claim premised on the lack of notice of the prohibited conduct. Indeed, how would a putative defendant in a statutory extortion context know with any degree of certainty whether the act he or she intends to compel is of serious consequence to the victim? Just as in Boomer, it may be far from obvious what a reasonable adult considers to be “serious” in consequence. Nonetheless, any claim that MCL 750.213 fails to provide fair notice of the conduct proscribed is merit-less. A statute is not vague if the meaning of the words in controversy can be fairly ascertained by referring to their generally accepted meaning. Because the word “any” is commonly understood to encompass a wide range of things, and the word “malicious” is commonly understood to involve either the intent to commit a wrongful act, absent justification or excuse, or an act or omission in reckless disregard of the law or of a person’s legal rights, any contention that the defendant did not have sufficient notice that his conduct would fall within the scope of the extortion statute is meritless. Moreover, the Legislature’s inclusion of a scienter requirement — in this case the requirement that the defendant “maliciously” threaten another— may mitigate a statute’s vagueness, “especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” The plain language of MCL 750.213 provides the trier of fact with sufficient guidance regarding the nature of the threat required for a conviction of statutory extortion and also provides a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited so that he or she may act accordingly. Therefore, the Court of Appeals decision in Hubbard erred by relying on the “serious consequences” construction afforded the statute in Fobb. Accordingly, we overrule that aspect of those decisions. B. APPLICATION Having overruled Fobb and Hubbard, and looking exclusively to the text of the extortion statute, we conclude that there was sufficient evidence in the record to support defendant’s extortion conviction. The existence of malice, as set forth in this opinion, depends on the facts and circumstances of each case and can be inferred from a defendant’s conduct. In this case, the record shows that defendant was upset and used vulgar language when, while armed with a handgun, he threatened to “silence” Neal. Defendant’s threat to “silence” Neal, while waving a gun, unless Neal resumed repairing the truck in the rain, was certainly a wrongful act, and it was not justified. Therefore, the threat was sufficiently malicious. Neal expressed a willingness to face God rather than capitulate to the defendant’s demands. Defendant orally communicated a malicious threat to injure Neal, thereby satisfying the first two elements of statutory extortion. Moreover, the evidence is sufficient to satisfy the third element — that defendant made the threat with the intent to compel Neal to undertake an act against his will. Although Neal initially agreed to work on the truck, the record establishes that he did not want to work on the truck in the rain, when defendant demanded otherwise. Whether a victim was in breach of a contract is immaterial under the extortion statute. Therefore, viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence to justify a rational trier of fact in finding guilt beyond a reasonable doubt. IV CONCLUSION Because the plain language of MCL 750.213 requires that a defendant maliciously threaten harm to another with the intent to compel that person “to do or refrain from doing any act against his will,” the level of significance or seriousness of the consequences of the compelled act to the victim is immaterial. We overrule the Court of Appeals decisions in People v Fobb and People v Hubbard to the extent that they require that the intended compelled act or omission be of serious consequence to the victim, and we affirm the judgment of the Court of Appeals in the instant case. Young, C.J., and Markman, Kelly, McCormack, and Viviano, JJ., concurred with Zahra, J. CAVANAGH, J., concurred in the result only. People v Fobb, 145 Mich App 786, 791-792; 378 NW2d 600 (1985). See also People v Hubbard (After Remand), 217 Mich App 459, 485; 552 NW2d 493 (1996), overruled on other grounds by People v Bryant, 491 Mich 575, 618; 822 NW2d 124 (2012). MCL 750.213 (emphasis added). People v Harris, unpublished opinion per curiam of the Court of Appeals, issued September 27, 2012 (Docket No. 304875). Id. at 4-5. Specifically, the Court of Appeals held that defendant orally communicated a malicious threat of injury to Neal’s person. Id. Id., citing Fobb, 145 Mich App at 791. Harris, unpub op at 4-5. Harris, unpub op at 1 (O’Connell, J., concurring in part and dissenting in part), citing Hubbard, 217 Mich App 459. Harris, unpub op at 3 (O’Connell, J., concurring in part and dissenting in part). Id. Id. People v Harris, 493 Mich 948 (2013). In re MCI Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999). People v Sherman-Huffman, 466 Mich 39, 41; 642 NW2d 339 (2002). People v Hardy, 494 Mich 430, 439; 835 NW2d 340 (2013), quoting People v Gardner, 482 Mich 41, 50; 753 NW2d 78 (2008). People v Krist, 97 Mich App 669, 674; 296 NW2d 139 (1980), citing Hawkins, Pleas of the Crown (1787), p 418, and Commonwealth v Bagley, 24 Mass 279 (1828). Saltzman, Michigan Criminal Law: Definitions of Offenses (2nd ed), § 6-9(d), p 518. See 1846 RS, ch 153, § 19. Michigan’s earliest extortion statute, 1846 RS, ch 153, § 19, provided: If any person shall, either verbally or by any written or printed communication, maliciously threaten to accuse another of any crime or offence, or shall by any written or printed communication maliciously threaten any injury to the person or property of another, with intent thereby to extort money, or any pecuniary advantage whatever, or with intent to compel the person so threatened to do any act against his will, he shall be punished by imprisonment in the state prison or in the county jail, not more than two years, or by fine not exceeding one thousand dollars. The statute has undergone few amendments since its enactment. In 1897, “verbally” was replaced by “orally” with respect to malicious threats to accuse another of a crime, and “orally” was added with respect to “written or printed” malicious threats to injure persons or property. See 1897 PA 188. In 1925, “threaten injury to the person or property or property of another” was amended to include “or mother, father, husband, wife, or child of another.” See 1925 PA 83, § 1. The extortion statute was most recently amended during the 1931 enactment of the Penal Code, which reused the maximum authorized fine to $10,000 and the maximum authorized imprisonment to 20 years. See 1931 PA 328, § 213. See also Saltzman, Michigan Criminal Law: Definitions of Offenses (2nd ed), § 6-9(d), pp 518-519. Fobb, 145 Mich App at 788. Id. Id. Id. at 787-788. Id. at 791. Id. at 791-792 (citations omitted). Fobb, 145 Mich App at 793. Hubbard, 217 Mich App at 485. Id. at 485-486, citing Fobb, 145 Mich App at 792-793. Harris, 217 Mich App at 486. See MCR 7.215(J)(1). MCL 750.213 (emphasis added). Random House Webster’s College Dictionary (1997). The definition of “any” has undergone little change in the more than 150 years since the enactment of the extortion statute. When the statute was enacted in 1846, “any” was defined as: 1. One, indefinitely. 2. Some; an indefinite number, plurally. 3. Some; an indefinite quantity; a small portion. 4. It is often used as a substitute, the person or thing being understood. It is used in opposition to none. Webster’s American Dictionary of the English Language (1846).] When the statute was most recently amended in 1931, “any” was defined as: 1. adj. (With neg., interrog., if, &e.) one, some, (not having [any] time to spare; have we [any] screws?; if you can find [any] excuse; to avoid [any] delay); one or some taken at random, whichever you will, every, (can get it from [any] chemist; in [any] case; gives [any] amount of trouble, an infinite). [American Oxford Dictionary (1931).] See also People v Lively, 470 Mich 248, 253-254; 680 NW2d 878 (2004) (“The commonly understood word ‘any’ generally casts a wide net and encompasses a wide range of things.”) People v Tombs, 472 Mich 446; 697 NW2d 494 (2005). MCL 750.145c(3) reads in relevant part: A person who distributes or promotes, or finances the distribution or promotion of, or receives for the purpose of distributing or promoting, or conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually abusive material or child sexually abusive activity is guilty of a felony, punishable by imprisonment for not more than 7 years, or a fine of not more than $50,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child. This subsection does not apply to the persons described in section 7 of 1984 PA 343, MCL 752.367. Id. at 457. Id. at 458, citing United States v X-Citement Video, Inc, 513 US 64, 69; 115 S Ct 464; 130 L Ed 2d 372 (1994). Woll v Attorney General, 409 Mich 500, 533; 297 NW2d 578 (1980); People v Howell, 396 Mich 16, 20; 238 NW2d 148 (1976). In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich 1, 11; 740 NW2d 444 (2007). In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich 295, 307; 806 NW2d 683 (2011); People v Barton, 253 Mich App 601, 603; 659 NW2d 654 (2002) (applying a presumption of constitutionality to an ordinance challenged on vagueness grounds). See Howell, 396 Mich at 21, citing United States v Nat’l Dairy Prod Corp, 372 US 29; 83 S Ct 594; 9 L Ed 2d 561 (1963); People v Lynch, 410 Mich 343, 352; 301 NW2d 796 (1981). Grayned v City of Rockford, 408 US 104,108-109; 92 S Ct 2294; 33 L Ed 2d 222 (1972). See also People v Lino, 447 Mich 567, 575; 527 NW2d 434 (1994), quoting Kolender v Lawson, 461 US 352, 357; 103 S Ct 1855; 75 L Ed 2d 903 (1983). Kolender, 461 US at 357-358. The Kolender Court noted that its concern for minimal guidelines dates as far back as its decision in United States v Reese, 92 US 214, 221; 23 L Ed 563 (1875). Reese held: It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of government. [Id. at 221.] MCL 750.213 (emphasis added). Black’s Law Dictionary (9th ed), p 1042. See also People v Whittemore, 102 Mich 519, 526; 61 NW 13 (1894). “The malice required by the [extortion] statute was . .. the willful doing of the act with the illegal intent. If the threat was willfully made with the intent to extort money, it was a malicious act....” Id., quoting Com v Buckley, 148 Mass 27, 28; 18 NE 577 (1888). People v Boomer, 250 Mich App 534; 655 NW2d 255 (2002). Id. at 540. Id. Id. at 541. See Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich, 492 Mich 503, 516; 821 NW2d 117 (2012) (reasoning that courts may consult dictionary definitions to ascertain the common and ordinary meaning of words in a statute); People v Cavaiani, 172 Mich App 706, 714; 432 NW2d 409 (1988) (“[A] statute is not vague when the meaning of the words in controversy can he fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises or even the words themselves, if they possess a common and generally accepted meaning.”). See the text accompanying notes 32-33 of this opinion. See the text accompanying note 44 of this opinion. Village of Hoffman Estates v Flipside, Hoffman Estates, Inc, 455 US 489, 499; 102 S Ct 1186; 71 L Ed 2d 362 (1982). The scienter requirement limiting the statute’s scope to threats made in reckless disregard of the law or another’s legal rights prohibits the application of the extortion statute to the far-fetched scenarios the defendant is concerned about, such as a judge compelling their law clerk to complete a work-related task under threat of termination or docked pay. Although the prosecution mistakenly suggested during oral argument that reasonable prosecutorial discretion would guard against application of the statute in such cases, the Supreme Court of the United States has made clear that the good will of prosecutors cannot alone save a vague statute. Baggett v Bullitt, 377 US 360, 373; 84 S Ct 1316; 12 L Ed 2d 377 (1964) (“Well-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law.”) In People v Bryant, this Court overruled Hubbard on other grounds, specifically in the context of a Sixth Amendment claim addressing whether the defendant’s jury venire reflected a fair cross section of the community. See Bryant, 491 Mich 575. See footnote 55, infra. Even if defendant’s demands were within the scope of his agreement with Neal, which they were not, the proper means of enforcing a contract is through the courts, not by engaging in malicious behavior. See People v Maranian, 359 Mich 361; 102 NW2d 568 (1960) (a claim of right is not a defense to an extortion charge).
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Markman, J. We granted leave to appeal to address (1) whether Miller v Alabama, 567 US_; 132 S Ct 2455; 183 L Ed 2d 407 (2012), should be applied retroactively — pursuant to either the federal or state test for retroactivity — to cases in which the defendant’s sentence became final for purposes of direct appellate review before Miller was decided and (2) whether the Eighth Amendment of the United States Constitution or Const 1963, art 1, § 16 categorically bars the imposition of a life-without-parole sentence on a juvenile homicide offender. After considering these matters, we hold that the rule announced in Miller does not satisfy either the federal test for retroactivity set forth in Teague v Lane, 489 US 288; 109 S Ct 1060; 103 L Ed 2d 334 (1989), or Michigan’s separate and independent test for retroactivity set forth in People v Sexton, 458 Mich 43; 580 NW2d 404 (1998), and People v Maxson, 482 Mich 385; 759 NW2d 817 (2008). We further hold that neither the Eighth Amendment nor Const 1963, art 1, § 16 categorically bars the imposition of a life-without-parole sentence on a juvenile homicide offender. I. FACTS AND HISTORY A. DEFENDANT CARP Defendant Raymond Carp was 15 years of age when he participated in the 2006 bludgeoning and stabbing of Mary Ann McNeely in Casco Township. He was charged with first-degree murder in violation of MCL 750.316 and tried as an adult. On October 5, 2006, a St. Clair County jury convicted Carp of this offense, and in accordance with the law he was sentenced to life imprisonment without parole. Carp’s conviction was subsequently affirmed by the Court of Appeals, People v Carp, unpublished opinion per curiam of the Court of Appeals, issued December 30, 2008 (Docket No. 275084), and his application for leave to appeal in this Court was denied on June 23, 2009, People v Carp, 483 Mich 1111 (2009). Because Carp did not seek review in the United States Supreme Court, his conviction and sentence became final for the purposes of direct appellate review on June 23, 2009. In September 2010, Carp sought to collaterally attack the constitutionality of his sentence by filing a motion for relief from judgment pursuant to MCR 6.501 et seq. The trial court denied this motion, concluding that the imposition of a mandatory sentence of life without parole on a juvenile first-degree-murder offender did not constitute cruel or unusual punishment, citing People v Launsburry, 217 Mich App 358, 363-365; 551 NW2d 460 (1996), lv den 454 Mich 883 (1997), and recon den 454 Mich 883 (1997). Carp then sought leave to appeal in the Court of Appeals, which was denied on June 8, 2012. People v Carp, unpublished order of the Court of Appeals, entered June 8, 2012 (Docket No. 307758). Seventeen days later, the United States Supreme Court issued its decision in Miller, leading Carp to move for reconsideration, and the Court of Appeals granted his motion. People v Carp, unpublished order of the Court of Appeals, entered August 9, 2012 (Docket No. 307758). On reconsideration, the Court determined that Miller had created a “new rule” that was “procedural” in nature and therefore not subject to retroactive application under the rules set forth in Teague. People v Carp, 298 Mich App 472, 511-515; 828 NW2d 685 (2012). The Court further held that Miller was not subject to retroactive application under Michigan’s separate test for retroactivity set forth in Sexton and Maxson. Id. at 520-522. This Court subsequently granted Carp leave to appeal with respect to whether Miller should be applied retroactively under either federal or state law. People v Carp, 495 Mich 890 (2013). B. DEFENDANT DAVIS Defendant Cortez Davis, age 16 at the time of his offense, and one of his cohorts, while both brandishing firearms, accosted two individuals in Detroit for the purpose of robbery. Two witnesses testified that when one of the victims attempted to flee, Davis and his cohort fired five or six shots, killing the victim. Davis was charged with felony first-degree murder in violation of MCL 750.316(l)(b) and convicted by a jury in the former Recorders Court for the City of Detroit (now part of the Wayne Circuit Court) on this charge on May 10, 1994. At sentencing, the trial court initially ruled that Michigan’s statutory sentencing scheme for first-degree murder could not constitutionally be applied to juvenile homicide offenders because it was “cruel and unusual” to impose a sentence of life without parole on a juvenile who was “capable of rehabilitation.” In concluding that Davis was such an individual, the court surmised that Davis’s role in the commission of the offense was that of an aider and abettor, not an actual shooter. The court, however, did not make any finding concerning Davis’s intentions with respect to the fleeing victim or whether he reasonably foresaw the possibility that a life might be taken when he initially engaged in the firmed robbery. The trial court thereupon sentenced Davis to a term of imprisonment of 10 to 40 years. On appeal, however, the Court of Appeals reversed and remanded for resentencing pursuant to Michigan’s statutory sentencing scheme, People v Davis, unpublished order of the Court of Appeals, entered November 23, 1994 (Docket No. 176985), and at resentencing, the trial court imposed the required sentence of life without parole. Direct appellate review of defendant’s conviction and sentence concluded in 2000. People v Davis, unpublished order of the Court of Appeals, entered June 15, 2000 (Docket No. 224046). In 2010, Davis filed his current motion for relief from judgment, contending that Graham v Florida, 560 US 48; 130 S Ct 2011; 176 L Ed 2d 825 (2010), constituted a “retroactive change in the law” in that it categorically barred life-without-parole sentences for juveniles convicted of nonhomicide offenses. Concluding, however, that felony murder is in fact a “homicide offense,” even when the defendant is not the actual shooter but an aider and abettor, the trial court denied this motion. The Court of Appeals denied Davis’s application for leave to appeal. People v Davis, unpublished order of the Court of Appeals, entered November 16, 2011 (Docket No. 304075). While Davis’s application for leave to appeal in this Court was pending, the United States Supreme Court issued its decision in Miller. In light of Miller, Davis’s case was remanded to the trial court for a determination of whether Miller applied retroactively. People v Davis, 492 Mich 871 (2012). On remand, the trial court concluded that Miller did apply retroactively, entitling Davis to be resentenced. The prosecutor then appealed, and the Court of Appeals reversed. People v Davis, unpublished order of the Court of Appeals, entered January 16, 2013 (Docket No. 314080), citing Carp, 289 Mich App 472. Davis again sought leave to appeal in this Court, which we granted to address whether the Eighth Amendment of the United States Constitution or Const 1963, art 1, § 16 categorically bars imposing a sentence of life without parole on a juvenile convicted of felony murder on aiding-and-abetting grounds. People v Davis, 495 Mich 890 (2013). C. DEFENDANT ELIASON Unlike Carp and Davis, whose sentences became final for purposes of direct review before Miller was decided, at least 10 defendants were convicted and sentenced before Miller, but their cases were on direct appeal at the time Miller was decided. Dakotah Eliason is one of those defendants. At age 14, Eliason, without provocation and after hours of deliberation, fired a single deadly shot into the head of his stepgrandfather as he slept in his Niles Township home. Eliason was charged with first-degree murder in violation of MCL 750.316(l)(a) in the Berrien Circuit Court, convicted by a jury, and sentenced in October 2010 to life without parole. While Eliason’s appeal was pending before the Court of Appeals, Miller was decided. In assessing the effect of Miller on Michigan’s sentencing scheme for juvenile first-degree-murder offenders, the Court of Appeals held that a trial court must as a result of Miller perform an individualized sentencing analysis based upon the factors identified in Miller. People v Eliason, 300 Mich App 293, 309-311; 833 NW2d 357 (2013), citing Carp, 289 Mich App at 522-532. Using this analysis, the trial court must then choose between imposing a sentence of life with or without parole. Eliason, 300 Mich App at 310. Eliason sought leave to appeal in this Court, challenging the sentencing procedures and options defined by the Court of Appeals, contending that the trial court should have the further option of imposing a sentence of a term of years. Eliason additionally argued that Const 1963, art 1, § 16 categorically bars the imposition of a life-without-parole sentence on a juvenile. We granted leave to appeal on both issues. People v Eliason, 495 Mich 891 (2013). II. MICHIGAN STATUTES Pending our resolution of this appeal, and in response to Miller, the Legislature enacted, and the Governor signed into law, 2014 PA 22, now codified as MCL 769.25 and MCL 769.25a. This law significantly altered Michigan’s sentencing scheme for juvenile offenders convicted of crimes that had previously carried a sentence of life without parole. A. PRE-MILLER To understand the full context of defendants’ appeals and the relief each seeks in reliance on Miller, it is necessary first to delineate the pre-Miller statutes that controlled the trial and sentencing of juvenile first-degree-murder offenders in Michigan. Each defendant before this Court was charged with first-degree murder under MCL 750.316. When a juvenile defendant “14 years of age or older” is charged with a felony, the family division of the circuit court would typically possess initial jurisdiction. MCL 712A.4(1). However, when a juvenile is charged with a “specified juvenile violation,” including first-degree murder in violation of MCL 750.316, “the prosecuting attorney may authorize the filing of a complaint and warrant on the charge . . ..” MCL 764.1f. If the prosecutor does so, the circuit court itself, rather than the family division of the circuit court, acquires jurisdiction over the juvenile defendant’s case and must try that person as an adult. See MCL 712A.2(a)(l). This process has been termed the “automatic waiver process” because the Legislature has vested exclusively in the prosecutor the executive discretion to charge and try a juvenile as an adult when the juvenile stands accused of first-degree murder. People v Conat, 238 Mich App 134, 141-142; 605 NW2d 49 (1999). The prosecutors in the instant three cases filed complaints and warrants placing the cases within the jurisdiction of the circuit court, where each defendant was then tried and convicted as an adult. When this occurs and the offense is included in an enumerated subset of specified juvenile violations (which includes first-degree murder), “[t]he court shall sentence a juvenile... in the same manner as an adult[.]” MCL 769.1(1). Because an adiilt convicted of first-degree murder “shall be punished by imprisonment for life,” MCL 750.316(1), and is not eligible for parole, MCL 791.234(6)(a), defendants were ultimately sentenced to terms of life without parole. Each defendant now seeks resentencing and, pursuant to the statutory response to Miller, would, if granted resentencing, be subject to the new sentencing rules established for juveniles by 2014 PA 22. B. POST'-MILLER MCL 769.25, enacted in response to Miller, prescribes a new sentencing scheme for juveniles convicted of violating certain provisions of Michigan laws, such as MCL 750.316, that had previously carried with them a fixed sentence of life without parole. The effect of MCL 769.25 is that even juveniles who commit the most serious offenses against the laws of this state may no longer be sentenced under the same sentencing rules and procedures as those that apply to adults who commit the same offenses. Rather than imposing fixed sentences of life without parole on all defendants convicted of violating MCL 750.316, MCL 769.25 now establishes a default sentencing range for individuals who commit first-degree murder before turning 18 years of age. Pursuant to the new law, absent a motion by the prosecutor seeking a sentence of life without parole, the court shall sentence the individual to a term of imprisonment for which the maximum term shall be not less than 60 years and the minimum term shall be not less than 25 years or more than 40 years. [MCL 769.25(4) and (9).] When, however, the prosecutor does file a motion seeking a life-without-parole sentence, the trial court “shall conduct a hearing on the motion as part of the sentencing process” and “shall consider the factors listed in Miller v Alabama . . . .” MCL 769.25(6). Accordingly, the sentencing of juvenile first-degree-murder offenders now provides for the so-called “individualized sentencing” procedures of Miller. In adopting this new sentencing scheme, the Legislature was clearly cognizant of the issue surrounding whether Miller was to be applied retroactively. In defining the scope of the new scheme, the Legislature asserted that “the procedures set forth in [MCL 769.25] do not apply to any case that is final for purposes of appeal on or before June 24, 2012 [the day before the United States Supreme Court’s decision in Miller].” MCL 769.25a(l). Instead, the Legislature specified: If the state supreme court or the United States supreme court finds that the decision of the United States supreme court in Miller v Alabama. [567] US_; 183 L Ed 2d 407; 132 S Ct 2455 (2012), applies retroactively to all defendants who were under the age of 18 at the time of their crimes, and that decision is final for appellate purposes, the determination of whether a sentence of imprisonment for a violation set forth in [MCL 769.25(2)] shall be imprisonment for life without parole eligibility or a term of years as set forth in [MCL 769.25(9)] shall be made by the sentencing judge or his or her successor as provided in this section. [MCL 769.25a(2).][ ] We now take up the question identified in MCL 769.25a(2) — whether Miller must be applied retroactively. III. STANDARD OF REVIEW Whether a decision of the United States Supreme Court applies retroactively under either federal or state retroactivity rules poses a question of law that is reviewed de novo. Maxson, 482 Mich at 387. Whether a statute is constitutional also poses a question of law that is reviewed de novo. Hunter v Hunter, 484 Mich 247, 257; 771 NW2d 694 (2009). When the constitutionality of a statute is brought into question, “[t]he party challenging [it] has the burden of proving its invalidity.” People v Thomas, 201 Mich App 111, 117; 505 NW2d 873 (1993). To sustain its burden, the party challenging the statute must overcome the presumption that a statute is constitutional, and the statute “will not be declared unconstitutional unless clearly so, or so beyond a reasonable doubt.” Cady v Detroit, 289 Mich 499, 505; 286 NW 805 (1939). Furthermore, a “party challenging the facial constitutionality of a statute faces an extremely rigorous standard, and must show that no set of circumstances exists under which the [a]ct would be valid.” In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich 1, 11; 740 NW2d 444 (2007) (citations and quotation marks omitted). IV ANALYSIS To determine whether Miller must be applied retroactively, it is helpful to first identify exactly what Miller held by way of understanding what precedents were relied on in forming its rule. Miller is the product of “two strands of precedent,” one requiring a particular form of individualized sentencing before capital punishment can be imposed and the other addressing the constitutionality of imposing specific punishments on juvenile offenders. Miller, 567 US at_; 132 S Ct at 2463-2464. We now consider both strands of precedent with the purpose of identifying what is required by the rules formed from each strand of precedent and then comparing and contrasting what is required by each with what is required by the rule in Miller in order to determine whether the latter rule should be applied retroactively. A. GENESIS OF MILLER 1. CAPITAL-PUNISHMENT STRAND In Furman v Georgia, 408 US 238; 92 S Ct 2726; 33 L Ed 2d 346 (1972), the United States Supreme Court decided 5-4 in seven separate opinions that it constituted cruel and unusual punishment in violation of the Eighth Amendment to impose capital punishment pursuant to a sentencing scheme that, in its words, “vested the [sentencer] with complete and unguided discretion to impose the death penalty .. . .” Beck v Alabama, 447 US 625, 639; 100 S Ct 2382; 65 L Ed 2d 392 (1980). In response, some states enacted sentencing schemes requiring the imposition of capital punishment for select crimes by way of the mandatory operation of law. Woodson v North Carolina, 428 US 280, 286-287, 298; 96 S Ct 2978; 49 L Ed 2d 944 (1976). Those sentencing schemes were also challenged on Eighth Amendment grounds in Woodson, with the Court understanding the case as challenging not the state’s ability to impose capital punishment but “the procedure employed by the State to select persons for the ... penalty of death.” Id. at 287 (emphasis added). In Woodson, the Court, in another 5-4 decision, held that those schemes were unconstitutional. The plurality opinion viewed as unconstitutional sentencing schemes that employed a process that did not permit for “the prevailing practice of individualizing sentencing determinations” as part of the process for imposing capital punishment. Id. at 303-304 (opinion of Stewart, Powell, and Stevens, JJ.). Accordingly, post-Woodson, capital punishment could only be constitutionally imposed after “consideration of the character and record of the individual offender and the circumstances of the particular offense ...Id. at 304. Notably, however, on the same day that the United States Supreme Court decided Woodson, it also declined to categorically bar the imposition of capital punishment. Gregg v Georgia, 428 US 153; 96 S Ct 2909; 49 L Ed 2d 859 (1976). Following Woodson and Gregg, the United States Supreme Court confronted two additional cases challenging whether the sentencing procedures employed to impose capital punishment complied with Woodson's requirement of individualized sentencing determinations. See Lockett v Ohio, 438 US 586; 98 S Ct 2954; 57 L Ed 2d 973 (1978), and Eddings v Oklahoma, 455 US 104; 102 S Ct 869; 71 L Ed 2d 1 (1982). Both Lockett and Eddings were cited in Miller as part of the capital-punishment strand of precedent that culminated in Miller. Miller, 567 US at_; 132 S Ct at 2467. The plurality opinion in Lockett stated that statutory schemes authorizing capital punishment must permit the sentencer to consider all forms of mitigating evidence relating to two measuring points for determining the propriety of the sentence — evidence relating to the defendant’s “character or record and any of the circumstances of the offense . . . .” Lockett, 438 US at 604 (opinion by Burger, C.J.). Relevantly listed as factors that the sentencer must be permitted to consider were the defendant’s “role in the offense” and the defendant’s “age.” Id. at 608. In Eddings, the Court, in a 5-4 decision, applied Lockett to a case in which the trial court, in considering mitigating factors before imposing capital punishment, declined to consider either the defendant’s family back ground, including the physical abuse and neglect he had suffered, or the fact that he suffered from an alleged “personality disorder.” Eddings, 455 US at 112-113. The Court ruled that while a sentencer may “determine the weight to be given relevant mitigating evidence,” the sentencer may not decide to give a piece of relevant mitigating evidence “no weight by [altogether] excluding such evidence from .. . consideration.” Id. at 114-115. Under Lockett and Eddings, in which individualized sentencing is required, not only must statutory procedures for imposing capital punishment permit the defendant to present all relevant mitigating evidence, but the sentencer must also consider and accord some weight to that evidence. Id. at 112-115. 2. JUVENILE-SENTENCING STRAND The second strand of precedent was developed in two cases, Roper v Simmons, 543 US 551; 125 S Ct 1183; 161 L Ed 2d 1 (2005), and Graham. Roper and Graham were understood by the Court in Miller to have “establish[ed] that children are constitutionally different from adults for purposes of sentencing.” Miller, 567 US at_; 132 S Ct at 2464. This constitutional distinction has resulted in downward alterations in Roper and Graham in the range of punishments that the state may constitutionally impose on juvenile offenders. When the rules from Roper and Graham are considered together, a state may only impose a sentence of life without parole on a juvenile for the commission of an offense that if committed by an adult would constitutionally permit the state to punish the adult by capital punishment. In Roper, the Court held that the “Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.” Roper, 543 US at 578. The Court characterized the rule it was adopting as a “categorical rule.” Id. at 572. The subsequent decision in Graham adopted what the Court again characterized as a “categorical rule,” i.e., that a sentence of life without parole could not be imposed on a juvenile nonhomicide offender. Graham, 560 US at 79. In reaching this conclusion, Graham drew comparisons between a capital sentence for an adult offender and a life-without-parole sentence for a juvenile offender. Id. at 69-70. To justify this categorical rule, the Court relied on the factors identified in Roper that assertedly distinguished juvenile and adult offenders. Id. at 68, citing Roper, 543 US at 569-570. The Court also supported its prohibition of life-without-parole sentences for juvenile nonhomicide offenders by concluding that the goals of punishment (retribution, deterrence, incapacitation, and rehabilitation) are not furthered when a nonparolable life sentence is imposed. Id. at 71-74. Combining strands of precedent that were previously limited to capital sentences and juvenile nonhomicide offenders respectively, and holding for the first time that these separate strands were relevant to noncapital sentences for juvenile homicide offenders, the United States Supreme Court reached its holding in Miller. 3. MILLER v ALABAMA Miller v Alabama created the rule that Carp and Davis seek to have applied retroactively. Having identi fied what is required by the rules from each of the two strands of precedent that underlie Miller, we now identify what is required by the rule in Miller in order to determine whether Miller is more like the juvenile-sentencing strand whose rules have applied retroactively under Teague or more like the capital-punishment strand whose rules have not been applied retroactively under Teague. We compare and contrast the rule in Miller in this way because, as discussed later, the “form and effect” of a rule is essential in determining whether a rule is to be applied retroactively under Teague. One form of a rule will produce a single invariable result, or a single effect, when applied to any defendant in the class of defendants to whom the rule is pertinent. Another form of a rule will produce a range of results, or have multiple possible effects, when applied to different defendants in the class of defendants to whom the rule is pertinent. The form and effect of the rules derived from the capital-punishment strand of precedent varies considerably from the form and effect of the rules derived from the juvenile-sentencing strand of precedent, and this variance has markedly different consequences for the question of retroactivity. The capital-punishment strand of precedent prescribed rules that require a sentencer to perform an individualized sentencing analysis resulting in capital punishment being either imposed or not. By contrast, the juvenile-sentencing strand of precedent prescribed rules that categorically bar the imposition of a particular sentence, requiring the sentencer to impose a lesser sentence in every case. The former class of rules does not clearly satisfy the test for retroactivity, while the latter class of rules does. In assessing whether the form and effect of the rule in Miller is more akin to that of the capital-punishment strand of precedent, and therefore less clearly retroactive, or more akin to the juvenile-sentencing strand of precedent, and therefore more clearly retroactive, we find it important to examine what Miller itself stated about the form and effect of its own holding. Miller held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Miller, 567 US at_; 132 S Ct at 2469. Within the very same paragraph in which Miller announced this holding, the Court also stated that its decision “require [s] [the sentencer] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at _; 132 S Ct at 2469. Miller then provides substantial details regarding what must be considered as part of the individualized sentencing process before a sentence of life without parole can be imposed on a juvenile: Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features— among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth — for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it. [Id. at_; 132 S Ct at 2468 (citation omitted).] Miller’s summarization of what the trial court must evaluate as part of the new individualized sentencing process tracks in large part the two measuring points about which a defendant must be allowed to present mitigating evidence within the capital-punishment context of Lockett — evidence relating to “the ‘circumstances of the particular offense and [to] the character and propensities of the offender.’ ” Id._n 9; 132 S Ct at at 2471 n 9, quoting Roberts v Louisiana, 428 US 325, 333; 96 S Ct 3001; 49 L Ed 2d 974 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), and citing Sumner v Shuman, 483 US 66; 107 S Ct 2716; 97 L Ed 2d 56 (1987). Although the focus of the rule in Miller — life-without-parole sentences for juvenile offenders — is, of course, distinct from the focus of the rules in capital-punishment cases, the form and effect of the rule in Miller is quite similar to that of the rules in capital-punishment cases. That is, the rule in Miller requires a sentencer to perform an individualized sentencing analysis resulting in a life-without-parole sentence being either imposed or not, very much like the capital-punishment cases require a sentencer to perform an individualized sentencing analysis resulting in capital punishment being either imposed or not. It is considerably more difficult to draw the same comparison between the rule in Miller and the categorical rules in Graham and Roper. Indeed, the United States Supreme Court itself specifically distinguished the form and effect of these rules: Our decision does not categorically bar a penalty for a class of offenders or type of crime — as, for example, we did in Roper or Graham. Instead, it mandates only that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics — before imposing a particular penalty. [Miller, 567 US at _; 132 S Ct at 2471.][ ] Thus, rather than relying on Graham and Roper to give form and effect to Miller, in the same manner as the capital-punishment decisions, the Court relied on Graham and Roper in Miller only for a generalized “principle” regarding juvenile offenders. Id. at_; 132 S Ct at 2471, 2472 n 11. That is, Miller relied on Graham and Roper for the general principle of law that juveniles possess different mental faculties than adults, so the United States Constitution requires that they be treated differently than adults for sentencing purposes with respect to the imposition of capital punishment and sentences of life without parole. Although this principle of law explains why the United States Supreme Court found it necessary to adopt the rule in Miller, it has no bearing on the actual form and effect of the rule adopted in Miller. Accordingly, because the form and effect of a rule rather than the principle underlying the rule’s formation controls whether the rule must be applied retroactively under federal retroactivity rules, whether Miller must be applied retroactively will center on whether a rule with a form and effect similar to the rules in Woodson, Lockett, and Ed-dings (rather than Roper and Graham) is the type of rule entitled to retroactive application under Teague. With this in mind, we next define Teague’s federal retroactivity test so as to determine whether the rule in Miller is entitled to retroactive application under that test. B. FEDERAL RETROACTIVITY 1. GENERAL OVERVIEW There is a “general rule of nonretroactivity for cases on collateral review” when it comes to applying new constitutional rules to cases that became final before the new rule was announced. Teague, 489 US at 307 (opinion by O’Connor, J). This default rule is driven by “the principle of finality which is essential to the operation of our criminal justice system.” Id. at 309. Supporting this same principle are concerns arising from the burdens placed on the administration of justice when new rules are applied retroactively, in that “[t]he ‘costs imposed upon the State[s] by retroactive application of new rules of constitutional law on [collateral review] generally far outweigh the benefits of this application.’ ” Id. at 310, quoting Solem v Stumes, 465 US 638, 654; 104 S Ct 1338; 79 L Ed 2d 579 (1984) (second alteration in original). For this reason, the first inquiry in which a court must engage when determining whether a rule applies retroactively to cases presented on collateral review concerns whether the rule constitutes a “new rule” as defined by Teague, 489 US at 299-301 (opinion by O’Connor, J.), and Penry v Lynaugh, 492 US 302, 329; 109 S Ct 2934; 106 L Ed 2d 256 (1989). Saffle v Parks, 494 US 484, 487; 110 S Ct 1257; 108 L Ed 2d 415 (1990). Generally speaking, a rule is “new” if the rule announces a principle of law not previously articulated or recognized by the courts and therefore “falls outside [the] universe of federal law” in place at the time defendant’s conviction became final. Williams v Taylor, 529 US 362, 381; 120 S Ct 1495; 146 L Ed 2d 389 (2000) (opinion by Stevens, J.). If a rule is not deemed a “new rule,” then the general rule of nonretroactivity is inapplicable and the rule will be applied retroactively even to cases that became final for purposes of direct appellate review before the case on which the defendant relies for the rule was decided. Whorton v Bockting, 549 US 406, 416; 127 S Ct 1173; 167 L Ed 2d 1 (2007). If, however, a rule is deemed a “new rule,” then the general rule of nonretroactivity does apply. See Saffle, 494 US at 494. When a rule is deemed a “new rule” and the general rule of nonretroactivity applies, a court must then engage in Teague’s second inquiry, to wit, whether the “new rule” satisfies one of Teague’s two exceptions to the general rule of nonretroactivity for new rules. See id. If the “new rule” satisfies either of Teague’s two exceptions, then it will be applied retroactively. Id. If, however, the “new rule” fails to satisfy either of those exceptions, the rule will only be entitled to prospective application. Id. Whorton succinctly summarized Teague’s two exceptions to the general rule of rionretroactivity as follows: A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a “ ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” [Whorton, 549 US at 416, quoting Saffle, 494 US at 495, quoting Teague, 489 US at 311 (opinion by O’Connor, J.) (alteration in original).] 2. “NEW RULE” Turning to the first inquiry of the retroactivity analysis, whether the rule in Miller is “new,” we note that the United States Supreme Court has defined a rule as “new” when the rule “ ‘breaks new ground,’ ‘imposes a new obligation on the States or the Federal Government,’ or was not ‘dictated by precedent existing at the time the defendant’s conviction became final.’ ” Saffle, 494 US at 488, quoting Teague, 489 US at 301 (opinion by O’Connor, J.) (emphasis omitted). Essential to any of these bases for finding that a rule is “new” is the question of whether “all reasonable jurists would have deemed themselves compelled to accept” the rule at the time defendant’s conviction became final. Graham v Collins, 506 US 461, 477; 113 S Ct 892; 122 L Ed 2d 260 (1993) (emphasis added). The fact that a “decision is within the ‘logical compass’ of an earlier decision ... is not conclusive for purposes of deciding whether the current decision is a ‘new rule’ under Teague.” Butler v McKellar, 494 US 407, 415; 110 S Ct 1212; 108 L Ed 2d 347 (1990). In determining whether the rule in Miller is “new,” this Court inquires whether before Miller courts of this state, if presented with a constitutional challenge to our pre-Miller sentencing statutes, would have felt bound to declare those statutes unconstitutional for the reasons expressed in Miller. It is apparent, in our judgment, that the rule in Miller constitutes a new rule. Miller imposed a hitherto-absent obligation on state and lower federal courts to conduct individualized sentencing hearings before imposing a sentence of life without parole on a juvenile homicide offender. As part of this process, a prosecutor seeking a life-without-parole sentence must now present evidence of aggravating factors relevant to the offender and the offense, juvenile defendants must be afforded the opportunity and the financial resources to present evidence of mitigating factors relevant to the offender and the offense, psychological and other evaluations relevant to the youthfulness and maturity of the defendants must be allowed, and courts must now embark upon the consideration of aggravating and mitigating evidence offered regarding juvenile defendants as a condition to imposing sentences that previously required no such consideration. It thus seems certain as a result of Miller that a considerable number of juvenile defendants who would previously have been sentenced to life without parole for the commission of homicide offenses will have a lesser sentence meted out. Under Teague and Saffle, these new obligations clearly render the rule in Miller a new rule. We are not aware of any statement of this Court by any justice before Miller that argued in support of, or anticipated, the constitutional requirements set forth in that decision. Unless every affirmation by this Court of a sentence of life without parole on a juvenile offender before Miller, including those that followed decisions such as Roper, Graham, Eddings, and Lockett, can be characterized as “unreasonable,” there cannot be serious argument that Miller did not define a “new rule.” Although Miller may be “within the logical compass” of earlier decisions, and built upon their foundation, cases predating Miller can hardly be read as having “dictated” or “compelled” Miller’s result. Miller undoubtedly broke new ground in that it set forth the first constitutional rule to mandate individualized sentencing before noncapital punishment can be imposed. In this respect, the capital-punishment cases, although providing a model for the form and effect of Miller, would not have required a reasonable jurist to conclude that a life-without-parole sentence for a juvenile could only be constitutionally imposed following an individualized sentencing hearing. Turning to the juvenile cases, Roper also dealt exclusively with the imposition of capital sentences without discussing the constitutionality of life-without-parole sentences and the need for individualized sentencing hearings. While Graham’s focus was on life-without-parole sentences, its constitutional rule was limited to nonhomicide offenses, and it did not make individualized sentencing the constitutional threshold for imposing a sentence of life without parole. Furthermore, while Graham drew a comparison between life-without-parole sentences for juvenile offenders and capital punishment, which was pivotal in deciding Miller, Graham also stopped well short of finding the two punishments equivalent. See Graham, 560 US at 69. This is evident by Graham’s reference to life without parole as “ ‘the second most severe penalty permitted by law,’ ” id., quoting Harmelin v Michigan, 501 US 957, 1001; 111 S Ct 2680; 115 L Ed 2d 836 (1991) (Kennedy, J., concurring in part), and its description of capital punishment as “ ‘unique in its severity and irrevocability,’ ” id., quoting Gregg, 428 US at 187 (emphasis added). Accordingly, although Roper and Graham could certainly be argued as being part of a longer-term movement toward application of the individualized sentencing capital-punishment cases to life-without-parole sentences for juvenile homicide offenders, Graham itself nowhere compelled or dictated this application. Since before Miller a court of this state could have reasonably rejected a constitutional challenge to Michigan’s preMiller sentencing scheme similar to that raised in Miller, Miller is clearly a “new rule.” 3. PROCEDURE VERSUS SUBSTANCE Concluding that Miller announced a new rule, we turn to the second inquiry, whether the rule in Miller fits within one of Teague's two “narrow exceptions” to the general rule of nonretroactivity. Saffle, 494 US at 486. At the outset, we note that neither Carp nor Davis advanced any argument before this Court suggesting that Miller should be applied retroactively under the second exception, the “watershed rule of criminal procedure” exception. Accordingly, we consider any argument regarding Miller identifying a “watershed rule of criminal procedure” unpreserved, and we will only consider whether the rule in Miller fits within the first exception to the general rule of nonretroactivity. The first exception differentiates between new substantive rules and new procedural rules, allowing for the retroactive application of only the former. See Whorton, 549 US at 417; Schriro v Summerlin, 542 US 348, 351-352; 124 S Ct 2519; 159 L Ed 2d 442 (2004). The origin of the first exception predates Teague, as that decision drew the contours of this exception from Justice Harlan’s partial concurrence and partial dissent in Mackey v United States, 401 US 667; 91 S Ct 1160; 28 L Ed 2d 404 (1971). Teague, 489 US at 311 (opinion by O’Connor, J.). In speaking of the “general” rule against retroactive application of new constitutional rules, Justice Harlan commented that the Court’s discussion is written only with new ‘procedural due process’ rules in mind, that is, those applications of the Constitution that forbid the Government to utilize certain techniques or processes in enforcing concededly valid societal proscriptions on individual behavior. New ‘substantive due process’ rules, that is, those that place, as a matter of constitutional interpretation, certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe, must, in my view, be placed on a different footing [and afforded retroactive application], [Mackey, 401 US at 692 (Harlan, J., concurring in the judgments in part and dissenting in part).] Justice Harlan supported this differentiation by emphasizing that retroactive application of a substantive rule “represents the clearest instance where finality interests should yield” because “[t]here is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose.” Id. at 693. Contrasting the retroactive application of a substantive rule with that of a procedural rule, Justice Harlan proceeded to offer the observation that the retroactive application of a substantive rule “entails none of the adverse collateral consequences of retrial” certain to follow the retroactive application of a procedural rule. Id. This is because a substantive rule precludes the possibility of retrial given that its application dictates a single result for the class of individuals or type of conduct formerly regulated by the old rule and now governed by the new rule. It is in this sense that categorical rules, such as those derived from the juvenile-sentencing strand of precedent, are substantive because they have a “form and effect” that always results in the imposed punishment being unconstitutional, i.e., they produce a “single result.” Conversely, noncategorical rules, such as those derived from the capital-punishment strand of precedent — and Miller — are procedural because they have a “form and effect” that does not always result in the imposed punishment being unconstitutional, i.e., they do not produce a “single result.” The latter rules merely require a court to perform a new or amended analysis before it can be determined whether a given punishment can be imposed on a particular defendant. Teague subsequently adopted Justice Harlan’s distinction between procedural and substantive rules, including the definition of when a rule is substantive. Teague, 489 US at 310-311 (opinion by O’Connor, J.). Since Teague, the United States Supreme Court has continued to recognize that the exceptions proposed by Justice Harlan in his opinion in Mackey were adopted in Teague. See, e.g., Danforth v Minnesota, 552 US 264, 273-275; 128 S Ct 1029; 169 L Ed 2d 859 (2008); Penry, 492 US at 329-330; see also Schriro, 542 US at 362 (Breyer, J., dissenting). Although Teague addressed whether a new rule germane to the trial stage of a criminal case could be applied retroactively, later cases have addressed whether new rules pertaining only to punishments and the sentencing phase are substantive and fit into Teague’s first exception to the general rule of nonretroactivity. In so doing, the United States Supreme Court has provided three descriptions of what makes a new rule “substantive” within the context of a new rule governing the sentencing stage of a criminal case. Each of these, however, can be boiled down to whether the punishment imposed is one that the state has the authority to, and may constitutionally, impose on an individual within the pertinent class of defendants. First, a new rule has been described as “substantive” when the rule “prohibit[s] a certain category of punishment for a class of defendants because of their status or offense.” Penry, 492 US at 330; see also Saffle, 494 US at 494-495. Put another way, the new rule is “substantive” when the punishment at issue is categorically barred. The requirement that the new rule be “categorical” in its prohibition is the direct product of how Justice Harlan’s first exception has been understood. That is, his first exception permits the retroactive application of “substantive categorical guarantees accorded by the Constitution, regardless of the procedures followed.” Penry, 492 US at 329 (emphasis added); see also Saffle, 494 US at 494. Second, a new rule has been described as “substantive” if it “alters the range of conduct or the class of persons that the law punishes.” Schriro, 542 US at 353, citing Bousley v United States, 523 US 614, 620-621; 118 S Ct 1604; 140 L Ed 2d 828 (1998). The dissent contends that when a new rule “expand[s] the range of punishments” available to the sentencer, the rule fits within this second description of a new rule as substantive. Post at 545. Although a new rule could potentially be viewed as altering the range of punishments available to the sentencer when the rule makes a previously unavailable lesser punishment available to the sentencer, the United States Supreme Court has adopted a different definition for when a new rule “alters the range” of available punishments. We are bound to abide by that definition when considering the rule in Miller for federal retroactivity purposes. Under that definition, a new rule alters the “range of conduct” that the law can punish when it “placets] particular conduct or persons covered by the statute beyond the State’s power to punish.” Schriro, 542 US at 352 (emphasis added) (citations omitted). In this sense, the new rule transforms the conduct in which the defendant engaged, and which was previously within the state’s power to regulate, into conduct that is no longer subject to criminal regulation. Applied in the context of rules governing sentencing and punishment, it must be the case that under the previous rule, the defendant “faces a punishment that the law cannot [any more] impose upon him” in light of the new rule. Id. In this sense, a new rule only “alters the range” of punishments available to the sentencer if it shifts the upper limits of the range of punishments downward so that the previously most severe punishment to which defendants have been sentenced is no longer a punishment that the sentencer may constitutionally impose. Third, a new rule has been described as “substantive” when it “narrow[s] the scope of a criminal statute by interpreting its terms . ...” Id. at 351, citing Bousley, 523 US at 620-621 (emphasis added). This third description addresses situations in which a criminal statute has previously been interpreted and applied beyond the statute’s intended scope so that the “defendant stands convicted of ‘an act that the law does not make criminal.’ ” Bousley, 523 US at 620, quoting Davis v United States, 417 US 333, 346; 94 S Ct 2298; 41 L Ed 2d 109 (1974). Put another way, this description is implicated when a court, rather than a legislature, has criminalized conduct, authorized punishment, or construed a statute to apply more broadly than it is later deemed to apply. See id. at 620-621 (“For under our federal system it is only Congress, and not the courts, which can make conduct criminal.”). In this sense, the state cannot constitutionally impose the punishment at issue because the new rule determines that no lawfully enacted statute has given the state the authority to impose such a punishment. In distinguishing what makes a new rule substantive, the United States Supreme Court has also afforded considerable direction regarding the qualities and contours of nonsubstantive, or procedural, rules. Simply put, “rules that regulate only the manner of determining the defendant’s culpability are procedural.” Schriro, 542 US at 353. This is because a rule that alters the “manner of determining” culpability “merely raise[s] the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.” Id. at 352. Applying this understanding to new rules governing sentences and punishments, a new procedural rule creates the possibility that the defendant would have received a less severe punishment but does not necessitate such a result. Accordingly, a rule is procedural when it affects how and under what framework a punishment may be imposed but leaves intact the state’s fundamental legal authority to seek the imposition of the punishment on a defendant currently subject to the punishment. Turning to how the United States Supreme Court has applied this distinction between substantive and procedural rules, in Schriro the Court was confronted with whether the new rule from Ring v Arizona, 536 US 584; 122 S Ct 2428; 153 L Ed 2d 556 (2002), was substantive or procedural. Ring’s rule invalidated Arizona’s capital-punishment sentencing scheme and required that a jury rather than a judge make the determination whether aggravating factors necessary for the imposition of capital punishment had been proved. Id. at 609. Despite the fact that Ring invalidated Arizona’s statutory sentencing scheme authorizing capital punishment, its rule was ultimately deemed “procedural” on the basis that it did not alter the range of conduct Arizona law subjected to the death penalty. ... Instead, Ring altered the range of permissible methods for determining whether a defendant’s conduct is punishable by death, requiring that a jury rather than a judge find the essential facts bearing on punishment. Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules, a conclusion we have reached in numerous other contexts. [Schriro, 542 US at 353.] In Saffle, the Court similarly deemed a new rule “procedural” when it would have prohibited anti-sympathy instructions to juries performing the individualized sentencing process as a condition to imposing capital punishment. See Saffle, 494 US at 486. In doing so, Saffle stated that the rule “would neither decriminalize a class of conduct nor prohibit the imposition of capital punishment on a particular class of persons.” Id. at 495. It is with Schriro and Saffle in mind that we turn to the question of whether the rule in Miller is properly viewed as substantive or procedural. Although the new procedures required by Miller may be more elaborate and detailed than the new procedures at issue in Schriro and Saffle, the basic form and effect is the same. As discussed earlier, Miller requires that the trial court “follow a certain process” before it can impose a sentence of life without parole on a juvenile homicide offender. Miller, 567 US at_; 132 S Ct at 2471. Miller, however, specifically “does not categorically bar a penalty for a class of offenders or type of crime[.]” Id. at_; 132 S Ct at 2471. Considering Miller’s self-description of its rule, it is clear that the rule is not substantive within the terms of the first description of when a rule is substantive, i.e., when the rule “prohibits] a certain category of punishment for a class of defendants because of their status or offense.” Penry, 492 US at 330; see also Saffle, 494 US at 494. The category of punishment implicated by Miller is a sentence of “life without parole,” the class of defendants receiving the benefit of Miller are juvenile defendants who are under the age of 18 at the time they commit their offenses, and the types of offenses implicated by Miller are homicide offenses. Accordingly, for Miller to be considered “substantive” under the first description of when a rule is substantive, it must prohibit sentences of life without parole for juvenile offenders under the age of 18 who are convicted of homicide offenses, and clearly Miller does no such thing. Instead, as with the procedural rules in Schriro and Saffle, and the rules from the capital-punishment cases of Woodson, Lockett, and Eddings, Miller creates only the possibility that a defendant may have received a lesser punishment had the trial court employed the new process that is constitutionally required by Miller. The second description of when a rule is substantive is equally of no avail to Carp and Davis because a rule is substantive under that description only when it alters the range of punishments that a state is permitted to impose by foreclosing the state’s ability to impose the punishment defendant is serving. See Schriro, 542 US at 353. In this sense, a rule is only substantive if it acts to ratchet down the previously most severe punishment possible. Conversely, and contrary to the dissent, a rule will be considered procedural if it merely expands the range of possible punishments that may be imposed on the defendant. Applied to Michigan’s sentencing scheme, Miller now requires the sentencer to consider imposing a sentence of life with the possibility of parole, but it does not require the sentencer to exclude from consideration a sentence of life without parole. Accordingly, Miller does not remove the punishment imposed on Carp and Davis from within the range of punishments the state has the power to impose. Accordingly, the rule in Miller again cannot be viewed as substantive under the second United States Supreme Court description. The third description of when a rule is substantive is altogether inapplicable to Miller. The decision did not rest on any principle of statutory interpretation, and it did not pertain to a situation in which life-without-parole sentences were being imposed on juvenile homicide offenders absent clear statutory authority to do so. Just as Carp and Davis were sentenced to life without parole in full accordance with Michigan’s statutory sentencing scheme, Miller was sentenced to life without parole in full accordance with Alabama’s statutory sentencing scheme. See Miller, 567 US at_; 132 S Ct at 2462-2643. Ultimately, the rule in Miller is procedural because, as with the rule in Ring, it merely shifts “decisionmaking authority” for the imposition of a life-without-parole sentence on a juvenile homicide offender. Schriro, 542 US at 353. Whereas Ring shifted decision-making authority for imposing capital punishment from the judge to the jury, Miller shifted decision-making authority for imposing a sentence of life without parole on a juvenile homicide offender from the legislature to the judiciary, by way of its individualized sentencing requirements. Although the process set forth in Miller is undoubtedly more favorable to juvenile homicide defendants as a class, the new process has no effect on Michigan’s inherent authority to lawfully and constitutionally seek the imposition of a life-without-parole sentence on any and every given juvenile homicide offender. Just as no court may impose a sentence of life without parole without conducting an individualized consideration of certain factors, no court relying on Miller may categorically refuse to impose a sentence of life without parole if the individualized sentencing factors do not operate in a defendant’s favor. Accordingly, in contrast to a substantive rule that avoids the adverse collateral consequences of retrial by dictating a singular result, Mackey, 401 US at 693 (Harlan, J., concurring in the judgments in part and dissenting in part), retroactive application of Miller necessarily requires this adverse collateral consequence. In this regard, the rule in Miller in no reasonable way can be said to “represento the clearest instance where finality interests should yield.” Id. (emphasis added). Because Miller continues to permit Michigan to impose a life-without-parole sentence on any juvenile homicide offender (but only after individualized consideration), it must necessarily be viewed as procedural rather than substantive. Therefore, we hold that the rule in Miller does not satisfy the first exception to the general rule of nonretroactivity in Teague. An additional consideration serves to strengthen this conclusion. In its description of the rule in Miller, the articulation employed by the United States Supreme Court is telling. Teague’s retroactivity analysis distinguishing substantive and procedural rules is in no sense new or novel. Rather, the proposition that “substantive categorical guarantees” should receive retroactive application while “procedural noncategorical guarantees” should only receive prospective application predates Teague. See Penry, 492 US at 329. In the face of this reasonably well-defined and longstanding distinction, Miller, in describing the nature and scope of its rule, repeatedly employs language typically associated with nonretroactive procedural rules. Although fully recognizing that Roper and Graham announced “categorical” bars, Miller twice states that its rule does not create a “categorical” bar. Miller, 567 US at_; 132 S Ct at 2469, 2471. Furthermore, Miller, in straightforward terms, speaks of its rule as one that “mandates only that a sentencer follow a certain process[.Y Id. at_; 132 S Ct at 2471 (emphasis added). It is hard to view these statements as anything other than expressions of continuity in the Court’s understanding of the law of retroactivity, particularly in a circumstance in which the four justices of the Supreme Court who were presumably the least inclined to extend Miller to a broader range of cases — the dissenting justices who had rejected the new rule in the first place — -were absent from the majority opinion. Carp advances three arguments in an effort to overcome our conclusion that Miller does not qualify for retroactive application under Teague. First, he argues that each of the strands of precedent that underlie Miller has been granted retroactive status. While there may be considerable force to the argument that categorical rules like those in Roper and Graham must be applied retroactively under Teague, the same cannot be said for the strand of cases requiring individualized sentencing before capital punishment can be imposed on an adult offender. Despite considerable effort by Carp, including post-oral-argument supplemental briefings, we remain unpersuaded that the United States Supreme Court, or even any federal court of appeals, has declared any of the individualized sentencing capital-punishment cases retroactive under Teague. In an effort to demonstrate to the contrary, Carp principally cites Sumner, in which the United States Supreme Court held that individualized sentencing was required before capital punishment could be imposed on a defendant, Shuman, who was serving a life-without-parole sentence at the time he committed the capital offense. Sumner, 483 US at 80-81. Carp is correct that Sumner relied on Woodson in creating its rule, id. at 70-75, and is also correct that Sumner involved the review of a state conviction on collateral habeas review, see id. at 68. However, not all cases presenting themselves on collateral review are equivalent for retroactivity purposes. Some cases on collateral review assert that state courts failed to properly apply constitutional rules in effect before the defendant’s conviction became final, while others seek the application or creation of a new rule that was not announced before the defendant’s conviction became final. If, with respect to the application of Woodson, Sumner fell into the latter category, then we might agree with Carp that Woodson had been applied retroactively. Sumner, as it relates to the application of Woodson, however, falls into the former category of cases presenting themselves on collateral review. Woodson was decided on July 2, 1976, and Shuman’s conviction did not become final for direct review purposes until May 17, 1978, nearly two years after Woodson was decided. See Shuman v State, 94 Nev 265; 578 P2d 1183 (1978). Accordingly, to the extent that Woodson was applied in Sumner, it was simply not applied retroactively to a case that had become final for direct review purposes before Woodson was issued. Apparently anticipating these flaws in the argument that Woodson has been applied retroactively, Carp contends that Sumner itself has been applied retroactively post-Teague. For this proposition, he cites Thigpen v Thigpen, 926 F2d 1003, 1005 (CA 11, 1991). We, however, do not read Thigpen as addressing the question of Sumner's retroactivity. Although the district court below had applied Sumner retroactively to invalidate Thigpen’s sentence, that portion of the district court’s ruling was never appealed and the only issue before the United States Court of Appeals for the Eleventh Circuit was Thigpen’s appeal concerning whether the district court had erred by upholding his conviction. See id. Accordingly, Carp has not succeeded in demonstrating that any of the individualized sentencing capital-punishment cases, i.e., Furman, Woodson, Lockett, Ed-dings, or Sumner, have been applied retroactively under Teague. This failure is pivotal given our earlier conclusion that the rule in Miller is of the same form and effect as the rules in the individualized sentencing capital-punishment cases. Second, Carp argues that Miller has added “age” and “incorrigibility” as elements of what must be assessed before a life-without-parole sentence can be imposed on a juvenile offender. Carp argues that it follows from this that age and the juvenile offender’s incorrigibility are aggravating factors that raise the mandatory minimum sentence that a defendant could receive under Michigan’s pre-Miller sentencing scheme because they must now be shown by the state before a juvenile offender can be sentenced pursuant to MCL 750.316(1) and MCL 791.234(6). Citing Alleyne v United States, 570 US_; 133 S Ct 2151, 2155; 186 L Ed 2d 314 (2013), Carp notes that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” Accordingly, he argues that the rule in Miller must be viewed as substantive and applied retroactively when it is considered in light of Alleyne because Miller combined with Alleyne substantively alters the way Michigan law defines and sentences juvenile homicide offenders. Even assuming for the sake of argument that Miller made assessments of “age” and “incorrigibility” necessary elements for imposing a life-without-parole sentence on a juvenile homicide offender, Carp’s argument still fails. This is because his argument relies on the new rule adopted in Alleyne and therefore Alleyne itself would need to qualify for retroactive application to have any bearing on the instant case. Carp, however, has failed to even argue, much less persuade this Court, that Alleyne established a substantive rule entitled to retroactive application under Teague. Absent being so persuaded, we treat the rule in Alleyne as a procedural rule entitled only to prospective application. Accordingly, to the extent that we view Alleyne as establishing a nonretroactive procedural rule, Alleyne may not be bootstrapped onto the rule in Miller to transform the latter from a nonretroactive procedural rule into a retroactive substantive rule. Third, Carp cites Miller’s companion case of Jackson v Hobbs as evidence that Miller has already been accorded retroactive status, and therefore presumably that the present judicial exercise has been rendered unnecessary. In offering this argument, Carp is correct that Jackson presented itself on collateral review and that the case was remanded for resentencing pursuant to the rule announced in Miller. Miller, 567 US at_; 132 S Ct at 2475. Accordingly, Carp also correctly notes that Jackson received retroactive relief under Miller. Id. at_; 132 S Ct at 2475. That being said, the fact that Jackson received the benefit of Miller being applied retroactively does not lead to the conclusion that Miller must be applied retroactively to any other defendant. This is because the assertion that a rule is nonretroactive is an “affirmative defense,” available to a prosecutor in objection to collateral relief being sought by a defendant. Thompson v Runnels, 705 F3d 1089, 1099 (CA 9, 2013) (noting that Caspari v Bohlen, 510 US 383, 389; 114 S Ct 948; 127 L Ed 2d 236 (1994) held that “ ‘a federal court may, but need not, decline to apply Teague if the State does not argue it,’ but ‘if the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim’ ”). As such, the nonretroactivity argument must be affirmatively raised by the state and when it is not raised, it is waived: Since a State can waive the Teague bar by not raising it, and since the propriety of reaching the merits of a dispute is an important consideration in deciding whether or not to grant certiorari, the State’s omission of any Teague defense at the petition stage is significant. Although we undoubtedly have the discretion to reach the State’s Teague argu ment, we will not do so in these circumstances. [Schiro v Farley, 510 US 222, 229; 114 S Ct 783; 127 L Ed 2d 47 (1994) (citation omitted).] In this sense, a defense premised on the nonretroactivity of a new rule is “not ‘jurisdictional’ ” in nature, and the court does not have any duty sua sponte to conduct a retroactivity analysis. Collins v Youngblood, 497 US 37, 41; 110 S Ct 2715; 111 L Ed 2d 30 (1990). Rather, because the question of retroactivity is “grounded in important considerations of federal-state relations,” a state is free to “[choose] not to rely on Teague” without the federal courts’ invalidating that choice. Id. By opting not to raise the defense in Jackson, the defense was waived and the question whether Miller should be applied retroactively was never presented to the United States Supreme Court. Carp, however, contends that “principles of evenhanded justice” dictate that the rule in Miller be applied retroactively in his case since it was applied retroactively in Jackson’s case. He draws his argument from Teague, wherein the United States Supreme Court stated; We can simply refuse to announce a new rule in a given case unless the rule would be applied retroactively to the defendant in the case and to all others similarly situated. ... We think this approach is a sound one. Not only does it eliminate any problems of rendering advisory opinions, it also avoids the inequity resulting from the uneven application of new rules to similarly situated defendants. We therefore hold that, implicit in the retroactivity ap proach we adopt today, is the principle that habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review .... [Teague, 489 US at 316 (opinion by O’Connor, J.) (all but last emphasis added).] As evidenced by the very quotation on which Carp relies, the application of the “principles of even-handed justice” only become relevant when the United States Supreme Court has actually undertaken a retroactivity analysis in the course of announcing a new rule. If no such analysis is necessary because of the posture of the case, as here, the Court will obviously not have the occasion to consider whether the new rule can be applied retroactively to all defendants who are situated similarly to the defendant before the Court. Under those circumstances, the idiosyncrasies, strategies, or policies and practices of a single prosecutor, among more than 3,000 throughout the country, cannot possibly be allowed under our system of federalism to determine what “even-handed justice” requires (and what the law does or does not command) of all prosecutors in every jurisdiction throughout the country. Having concluded that Miller established a new procedural rule that does not “categorically bar a penalty,” but instead requires “only that a sentencer follow a certain process,” Miller, 567 US at_; 132 S Ct at 2471, and having rejected the arguments in support of the retroactive application of Miller, we hold that the United States Supreme Court’s decision in that case does not require retroactive application under Teague. In light of this holding, we now turn to whether Miller is entitled to retroactive application under Michigan’s separate test for retroactivity. C. STATE RETROACTIVITY Although states must apply a new rule of criminal procedure retroactively when the new rule satisfies Teague’s exceptions to the general rule of nonretroactivity, they are permitted to “give broader retroactive effect” to a new rule than is required by Teague. Danforth, 552 US at 288-289. In this sense, Teague provides a floor for when a new rule of criminal procedure must be applied retroactively, with a state nonetheless free to adopt its own broader test for requiring the retroactive application of a new federal or state constitutional rule. See id. at 289-290. Michigan has adopted its own separate test for when a new rule of criminal procedure should be applied retroactively. See Maxson, 482 Mich at 392-393. Michigan’s test for retroactivity was originally derived from the pre-Teague federal test set forth in Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965). See People v Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971). Despite Michigan’s having adopted its own retroactivity test that may give broader retroactive effect to some new rules than is mandated by the Teague test, Michigan nonetheless still adheres to the general principle of nonretroactivity for new rules of criminal procedure. As a result, “Michigan law has regularly declined to apply new rules of criminal procedure to cases in which a defendant’s conviction has become final.” Maxson, 482 Mich at 392-393 (citing several examples of new rules of criminal procedure that this Court declined to apply retroactively under its version of the Linkletter test). With Michigan’s predisposition against the retroactive application of new rules of criminal procedure firmly in mind — in that only the extraordinary new rule of criminal procedure will be applied retroactively under Michigan’s test when retro-activity is not already mandated under Teague — we proceed to evaluate whether the rule in Miller satisfies this state test. Michigan’s test for retroactivity consists of three factors: “(1) the purpose of the new rule[]; (2) the general reliance on the old rule[;] and (3) the effect of retroactive application of the new rule on the administration of justice.” [Maxson, 482 Mich at 393, quoting Sexton, 458 Mich at 60-61, citing Hampton, 384 Mich at 674 (second alteration in original).] The first factor, the purpose factor, assesses the nature and focus of the new rule and the effect the rule is designed to have on the implementation of justice. See People v Young, 410 Mich 363, 366-367; 301 NW2d 803 (1981). Under this first factor, when a new rule “concerns the ascertainment of guilt or innocence, retroactive application may be appropriate.” Id. at 367, citing Hampton, 384 Mich 669 (emphasis added). Conversely, “[w]hen the ascertainment of guilt or innocence is not at stake, prospective application is possible” because “the purposes of the rule can be effectuated by prospective application.” People v Markham, 397 Mich 530, 535; 245 NW2d 41 (1976). Consistent with this standard for when a rule should be applied only prospectively, “a new rule of procedure . . . which does not affect the integrity of the fact-finding process should be given [only] prospective effect.” Young, 410 Mich at 367. Carp contends that Miller, although not impheating his guilt or innocence, nonetheless, goes to the “integrity of the fact-finding process” because it is essential to evaluating a defendant’s level of culpability when imposing a sentence. In support of this contention, he cites McConnell v Rhay, 393 US 2, 3-4; 89 S Ct 32; 21 L Ed 2d 2 (1968), in which pursuant to Linkletter, the United States Supreme Court retroactively applied a new rule of criminal procedure despite the new rule’s being relevant only to the sentencing phase. As Carp correctly observes, McConnell, in effecting its proretroactivity holding, stated that “the right being asserted relates to ‘the very integrity of the fact-finding process.’ ” Id. at 3, quoting Linkletter, 381 US at 639. Two considerations, however, leave us unpersuaded that this remark necessitates the conclusion that the first factor of Michigan’s test favors the retroactive application of Miller. First, the new rule applied retroactively in McConnell addressed the right to counsel, a right with unique significance both within the context of the criminal proceeding and within the context of the United States Supreme Court’s retroactivity jurisprudence. Given this extraordinary footing of the right to counsel, we read McConnell’s statement that “the right being asserted relates to ‘the very integrity of the fact-finding process’ ” as concerning specifically the right to counsel rather than all new rules that may expand the fact-finding process at sentencing. For this reason, we do not understand McConnell as necessitating the view that, for retroactivity purposes under the Linkletter test, rules implicating the fact-finding process at sentencing must be placed on equal footing with rules implicating the fact-finding process for guilt or innocence. Second, even if McConnell supported the expansive view that Carp attributes to it, that view is contrary to how Michigan law describes its own application of the Linkletter test. In every case to date in which this Court has applied the state retroactivity test, the “integrity of the fact-finding process” has always been referred to in the context of determining a defendant’s “guilt or innocence.” Maxson, 482 Mich at 393-394; Sexton, 458 Mich at 62; Young, 410 Mich at 367. To the extent that McConnell may have viewed the “fact-finding process” as continuing throughout sentencing, we respectfully disagree and decline to adopt such an expansive view for purposes of our separate and independent test for retroactivity. It reflects an understanding of retroactivity that is no longer subscribed to by the United States Supreme Court and an understanding to which this Court has never subscribed. There is utterly no obligation on our part to forever maintain the Linkletter test in accordance with every past federal understanding when the test is now defunct for federal purposes and this Court, although initially relying on Linkletter to formulate our state test for retroactivity, has added its own interpretations to that test. Instead, the general principle of nonretroactivity for new rules of criminal procedure, to which Michigan adheres and which informs this state’s retroactivity analysis, is properly served, in our judgment, by applying retroactively only those new rules of procedure that implicate the guilt or innocence of a defendant. We acknowledge that there are circumstances in which our state test may sometimes apply a new rule retroactively in circumstances in which Teague would not apply, but we are not prepared to extend our test beyond the federal test to the degree urged upon us by Carp. In declining to expand the scope of the first factor of Michigan’s state test for retroactivity, we note again that although our state test is derived from Linkletter, nothing requires this Court to adopt each and every articulation of that test — one that is no longer adhered to by the United States Supreme Court itself. Our state test for retroactivity is supplemental to the current federal test set forth in Teague, and it is separate and independent of the former federal test set forth in Linkletter. See Danforth, 552 US at 289. As the Teague test replaced the Linkletter test for federal purposes, doubtlessly contracting the universe of new constitu tional rules that will be applied retroactively, it should be unsurprising that this Court would decline to grant retroactive status to a new rule of criminal procedure affecting only the sentencing phase of a criminal case when such a permutation of the defunct test has never before been so applied in this state. From our holding that the first factor of our state test for retroactivity focuses on whether a new rule of procedure implicates a defendant’s guilt or innocence, it is apparent that the first factor clearly militates against the retroactive application of Miller. As Miller alters only the process by which a court must determine a defendant’s level of moral culpability for purposes of sentencing, it has no bearing on the defendant’s legal culpability for the offense of which the defendant has been duly convicted. In light then of our conclusion that the first state factor clearly counsels against the retroactive application of Miller, we find it relevant here to address the interplay between the three factors of the test and the weight that must be given to each before we determine the effect of the second and third factors on Miller’s retroactive application. That a test consists of multiple factors does not logically signify that equal weight must be given to each. The United States Supreme Court, in applying the Linkletter test before it adopted the Teague test, observed that the second and third factors “have been regarded as having controlling significance ‘only when the purpose of the rule in question did not clearly favor either retroactivity or prospectivity.’ ” Michigan v Payne, 412 US 47, 55; 93 S Ct 1966; 36 L Ed 2d 736 (1973), quoting Desist v United States, 394 US 244, 251; 89 S Ct 1030; 22 L Ed 2d 248 (1969). Deductively from this statement, if two of the three factors only control when the first factor does not “clearly favor” retroactivity or prospectivity, it follows that the first factor must be afforded more weight than either of the other two factors when the first factor does “clearly favor” retroactivity or prospectivity. We are persuaded by, and adhere to, Payne’s and Desist’s understanding regarding the heightened weight to be afforded the first factor when it strongly supports one side or the other of the retroactivity question. Placing such an emphasis on the first factor is fully consistent with this Court’s longstanding practice of dealing with the second and third factors “together.” Young, 410 Mich at 367; Hampton, 384 Mich at 677. In this sense, the second and third factors will generally tend to produce a unified result that either favors or disfavors retroactivity. This is because the subject of the second factor (general reliance on the old rule) “will often have a profound effect on” the subject of the third factor (administration of justice), given that the greater the reliance by prosecutors of this state on a rule in pursuing justice, the more burdensome it will generally be for the judiciary to undo the administration of that rule. Sexton, 458 Mich at 63-64; see also Hampton, 384 Mich at 677-678. In light of the weight to be afforded the first factor when it clearly preponderates against retroactive application, our unified consideration of the second and third factors would need to favor retroactive application to a substantial degree in order for Miller to satisfy the requirements for retroactive application under our state test. Turning to the inquiry required to evaluate the second and third factors “together,” the second factor — the reliance on the old rule — must be considered both from the perspective of prosecutors across the state when prosecutors faithfully abided by the constitutional guarantees in place at the time of a defendant’s conviction, see Adams v Illinois, 405 US 278, 283-284; 92 S Ct 916; 31 L Ed 2d 202 (1972), and Johnson v New Jersey, 384 US 719, 731; 86 S Ct 1772; 16 L Ed 2d 882 (1996), as well as from the collective perspective of the 334 defendants who would be entitled to resentencing if the new rule were applied retroactively, seeMaxson, 482 Mich at 394. Inherent in the question of reliance by prosecutors across the state is the extent to which the old rule received constitutional approval from the judiciary before the adoption of the new rule. See Tehan v United States ex rel Shott, 382 US 406, 417; 86 S Ct 459; 15 L Ed 2d 453 (1966). When the old rule is merely the result of a “negative implication” drawn by prosecutors, the prosecutors’ good-faith reliance on the old rule is at its most minimal. Brown v Louisiana, 447 US 323, 335; 100 S Ct 2214; 65 L Ed 2d 159 (1980) (opinion by Brennan, J.). Similarly, when the old rule was of “doubtful constitutionality,” the ability of prosecutors across the state to rely on the old rule in good faith is diminished. Id. Conversely, when the old rule has been specifically approved by the courts as passing constitutional muster, prosecutors have their strongest argument for having relied on the old rule in good faith. Tehan, 382 US at 417. Moreover, when prosecutors relied in good faith on the old rule and did so for a lengthier period of time, reliance can be viewed as more significant and the second factor will tend to counsel against retroactive application. Id. As for defendants’ reliance on the old rule, they must demonstrate not only that they relied on the old rule by taking or not taking a specific action, but that they “detrimentally relied on the old rule.” Maxson, 482 Mich at 394 (emphasis added). The inquiry into reliance will significantly affect any inquiry into the burden placed on the administration of justice because when prosecutors have relied on the old rule, they have presumably taken few, if any, steps to comply with the new rule. The greater the extent of their reliance, and the greater the extent to which the new rule constitutes a departure from the old rule, the more burdensome it becomes for prosecutors to take the steps necessary to comply with the new rule. Similarly, the greater the extent of the departure, the more difficult it becomes for courts to look back and attempt to reconstruct what outcome would have resulted had the new rule governed at the time a given defendant was sentenced. A burden is placed on the administration of justice in the form of time and expense to the judiciary in retroactively accommodating the new rule. Far more importantly, when a new rule is likely to be difficult to apply retroactively, a burden is placed on the administration of justice in the form of compromising the accuracy with which the new rule can be applied and the confidence the public may have regarding judicial determinations in situations in which the new rule is applied to cases that became final many years or even decades earlier. Applying these considerations in evaluating the second and third factors to Miller, it is apparent that these factors do not sufficiently favor the retroactive application of Miller so as to overcome the first factor’s clear direction against its retroactive application. The old rule permitting life-without-parole sentences on the basis of the pre-Miller sentencing scheme established by the Legislature received in 1996 the specific approval of its constitutionality by our judiciary. Launsburry, 217 Mich App at 363-365. Further, nothing in United States Supreme Court caselaw called into any question life-without-parole sentences for any juvenile offenders until Graham was decided in 2010, and even then Graham was specifically limited in its breadth to juveniles who committed nonhomicide offenses. Graham, 560 US at 82. Indeed, before Roper in 2005, United States Supreme Court precedent specifically held that it was constitutional to impose capital punishment on juveniles over the age of 16 convicted of homicide offenses. Stanford v Kentucky, 492 US 361, 380; 109 S Ct 2969; 106 L Ed 2d 306 (1989). Accordingly, at the time prosecutors across Michigan sought life-without-parole sentences for 302 of the 334 defendants who would gain a resentencing hearing if Miller were ap plied retroactively, the Eighth Amendment of the United States Constitution was affirmatively understood as permitting the imposition of not merely life without parole but also the imposition of capital punishment on juvenile first-degree-murder offenders. On the basis of this state of the law, prosecutors across Michigan entirely in good faith relied on the old rule whenever they sought hfe-without-parole sentences for juvenile homicide offenders. Considering the constitutional approval the old rule received from both our judiciary and the United States Supreme Court, as well as the length of time during which the old rule prevailed — dating back to our state’s founding in 1837 — the reliance on the old rule by Michigan prosecutors was significant and justified. Conversely, we note that this is not a situation in which it can fairly be said that, as a group, the 334 defendants who would be entitled to resentencing if the rule in Miller were applied retroactively have “relied” on the old rule to their “detriment.” First, we find it difficult to understand, and Carp and Davis themselves fail to identify, exactly what adverse action the 334 defendants have taken, or opted not to take, in “reliance” on the old rule (except perhaps to recognize and abide by the old rule as the then extant law of this state). If such “reliance,” in the sense of merely having to comply with the then extant law, is viewed as sufficiently “detrimental” to satisfy the second state retroactivity factor, then it would almost always be the case that this factor would weigh heavily in favor of retroactivity, since it must be assumed that criminal defendants, or at least their counsel, would almost always rely on existing law in formulating their trial and appellate strategies. There is nothing “detrimental” about that reliance except that the law is not as hospitable to the interests of such defendants as they might like it to be. That the law might have been destined to become more hospitable in the future is of little relevance since it is only because of that development that the issue of retroactivity has arisen in the first place. Second, even to the extent that any defendants can be said to have taken or foregone some action to their detriment in reliance on the old rule, they still can only be said to have “detrimentally” relied on the old rule if they can establish that they would have obtained a result more favorable to them under the new rule. Maxson, 482 Mich at 394-396. In this sense, defendants can only be said to have “ ‘detrimentally relied’ on the old rule” if they “suffered actual harm from [their] reliance . . . .” Id. at 396. However, a majority of the 334 defendants who would receive resentencing hearings if the rule in Miller were applied retroactively were between 17 and 18 years of age when they committed their homicide offenses. Because Miller requires a sentencing court to give specific consideration to the age and the mental development of a juvenile offender before imposing a sentence of life without parole, when a juvenile most closely approaches the age of majority at the time the juvenile commits a homicide offense, Miller would seem least likely to counsel in favor of sentencing that juvenile with special leniency, given that in only as few as several months the juvenile would be ineligible for any leniency at all. In this sense, it is speculative at best to presume that a majority of Michigan’s juvenile offenders serving life-without-parole sentences would gain relief in the form of a lesser sentence if they received a resentencing hearing pursuant to the retroactive application of Miller. Accordingly, juvenile defendants, as a class, are unable to demonstrate with any certainty under the state test that they detrimentally relied on the old rule to such an extent as to outweigh the state’s reliance on the old rule. As between defendants and the prosecutors of this state, it is further apparent that the latter have relied far more heavily on the old rule, have done so in good faith, and would have relied “detrimentally” on behalf of the people were Miller to be applied retroactively. In particular, in relying on the old rule, prosecutors did not for the purpose of sentencing have any cause at the time to investigate or present evidence concerning the aggravating or mitigating factors now required to be considered by Miller. If Miller were to be applied retroactively, prosecutors would be abruptly required to bear the considerable expense of having to investigate the nature of the offense and the character of the 334 juvenile offenders subject to Miller’s retroactive application. This task, if newly thrust upon prosecutors, would be all the more burdensome and complicated because a majority of the 334 defendants were sentenced more than 20 years ago and another 25% were sentenced between 15 and 20 years ago. And in many, if not most, of those instances, the prosecutor who initially tried the case would likely no longer be available for a resentencing hearing. That is, Miller makes many things relevant to the sentencing process that were simply not relevant at the time of the initial sentencing, and these things would have to be reconstructed, almost impossibly so in some cases, after many years, in order to sustain a criminal sentence that was viewed at the time as the culmination of a full and fair process by which justice was obtained in cases of first-degree murder. There would be considerable financial, logistical, and practical barriers placed on prosecutors to re-create or relocate evidence that had previously been viewed as irrelevant and unnecessary. This process would not, in our judgment, further the achievement of justice under the law because it would require in many instances that the impossible be done, and if it could not be, a heavy cost would be incurred by society in the form of the premature release of large numbers of persons who will not have fully paid their legal debt to society, many of whom as a result might well continue to pose a physical threat in particular to individuals living in our most vulnerable neighborhoods. Miller requires trial courts to determine a defendant’s moral culpability for the murder the defendant has committed by examining the defendant’s character and mental development at the time of the offense. Even if the myriad evidence could somehow be obtained by the prosecutor, it is fanciful to believe that the backward-looking determination then required of the trial court could be undertaken with sufficient accuracy and trustworthiness so many years after the crime had been committed, the trial completed, and the defendant sentenced. Further, just as the prosecutor might no longer be available to represent the people’s interest, neither might the sentencing judge. We are not confident that the justice achieved by a resentencing process taking place many years after the original trial and sentencing — many years after the victims of the homicide have become little more than historical footnotes to all but their immediate families — and presided over by a judge who can never entirely be situated like the judge who presided over the trial, can effectively replicate the justice achieved at the initial sentencing. Instead, we believe that the trial court’s ability to travel back in time to assess a defendant’s mental state of some 20 years earlier — evidence of which may not even have been gathered at the time — is limited; that the recollection of memories about aggravating and mitigating circumstances — evidence of which may again not even have been gathered at the time — is questionable; and that, as a result, public confidence in the integrity and accuracy of those proceedings will understandably be low. For these reasons, we find that the second and third factors do not sufficiently favor the retroactive application of Miller so as to overcome the first factor counseling against the retroactive application of Miller. As a result of this analysis, Miller is not entitled to retroactive application under Michigan’s test for retroactivity. D. CONSTITUTIONAL ISSUES Defendants raise a series of constitutional challenges arguing that the Eighth Amendment of the United States Constitution or Const 1963, art 1, § 16, or both, categorically bars the imposition of a life-without-parole sentence on a juvenile homicide offender. We consider each challenge in turn. 1. FEDERAL CATEGORICAL BAR Defendants assert that the Eighth Amendment of the United States Constitution categorically bars the imposition of a sentence of life without parole on any juvenile homicide offender, regardless of whether the “individualization” of sentencing is performed before that sentence is imposed. The effect of the categorical rule sought by defendants would not only mandate resentencing for all juvenile defendants sentenced to life without parole under the pre-Miller sentencing scheme, but would also invalidate those portions of MCL 769.25 allowing the state to impose a life-without-parole sentence on particular juveniles following an individualized sentencing hearing in accordance with Miller. See MCL 769.25(2) through (7). Defendants ask this Court to read the United States Supreme Court’s rulings in Roper, Graham, and Miller as necessarily foreshadowing the conclusion that the Eighth Amendment categorically bars life-without-parole sentences for all juvenile offenders. However, the limited nature of each of these rulings does not, in our judgment, necessitate that conclusion. Moreover, the proportionality-review employed by the United States Supreme Court in fashioning the rules in Roper, Graham, and Miller also does not support the categorical rule sought by defendants. As noted earlier, the holding in Roper was specifically limited to capital punishment in that the “Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.” Roper, 543 US at 578. Given that capital punishment was only “likened” to life without parole for a juvenile offender, Miller, 567 US at_; 132 S Ct at 2463-2464, rather than deemed equivalent to life without parole for a juvenile offender, neither Roper nor Roper in conjunction with Graham and Miller suggests in any way that the Eighth Amendment must be read as invalidating the state’s ability to impose a life-without-parole sentence on a juvenile homicide offender. Likewise, Graham’s holding was specifically limited so as to categorically bar only the imposition of life-without-parole sentences for juvenile offenders convicted of nonhomicide offenses. Graham, 560 US at 79. Accordingly, Graham also does not compel the invalidation of a state’s ability to impose a sentence of life without parole on a juvenile homicide offender. Turning lastly to Miller, its rule is specifically limited in that it counsels against the very categorical rule sought by defendants. As discussed earlier, Miller requires that an individualized sentencing hearing occur before a life-without-parole sentence may be imposed, but expressly “does not categorically bar a penalty” or “foreclose a sentencer’s ability” to impose a life-without-parole sentence. Miller, 567 US at_; 132 S Ct at 2469, 2471. Defendants’ proposed categorical rule would therefore read the Eighth Amendment as categorically barring precisely the very punishment that Miller declined to categorically bar and, in so doing, asserted was not categorically barred by the Eighth Amendment. Defendants alternatively contend that, in light of the manner in which state legislatures reacted to Miller by adjusting sentencing schemes governing juvenile homicide offenders, it is now, pursuant to the proportionality review employed in Roper, Graham, and Miller, cruel and unusual punishment to impose a life-without-parole sentence on a juvenile homicide offender. Within the context of the Eighth Amendment, the United States Supreme Court has used a multipart test to determine if a punishment imposed on a juvenile offender is disproportionate: A court must begin by comparing the gravity of the offense and the severity of the sentence. “[I]n the rare case in which [this] threshold comparison ... leads to an inference of gross disproportionality” the court should then compare the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. If this comparative analysis “validate[s] an initial judgment that [the] sentence is grossly disproportionate,” the sentence is cruel and unusual. [Graham, 560 US at 60, quoting Harmelin, 501 US at 1005 (Kennedy, J., concurring in part).] Starting with the preliminary question whether “the gravity of the offense” is commensurate with “the severity of the sentence,” Graham, 560 US at 60, we note that first-degree murder is almost certainly the gravest and most serious offense that an individual can commit under the laws of Michigan — the premeditated taking of an innocent human life. It is, therefore, unsurprising that the people of this state, through the Legislature, would have chosen to impose the most severe punishment authorized by the laws of Michigan for this offense. Although the individualized sentencing process now required by Miller (and as a necessary response to Miller by MCL 769.25) may perhaps indicate that some juvenile offenders lack the moral culpability and mental faculties to warrant a life-without-parole sentence pursuant to the premises of Miller, when the contrary conclusions are drawn, as they presumably will be in some cases, a sentence of life without parole for first-degree murder will not “lead[] to an inference of gross disproportionality.” Id. Accordingly, defendants have failed to demonstrate that the imposition of a life-without-parole sentence will satisfy the first part of the United States Supreme Court’s test for proportionality. As the first part of this federal test is a necessary requirement for finding that a punishment is “disproportionate,” defendants’ facial challenge fails as they are consequently unable to demonstrate that the Eighth Amendment categorically bars the imposition of a life-without-parole sentence on juvenile homicide offenders. Even if defendants had satisfied the first part of the federal test for disproportionality, however, they have also failed to satisfy the second part of the test, which compares the life-without-parole sentence defendants seek to invalidate “with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.” Id. As for other offenders within the state of Michigan, defendants are correct to note that life without parole is the most severe punishment imposed by this state. This fact alone, however, does not persuade us that imposing a life-without-parole sentence on a juvenile homicide offender is disproportionate. First, as noted in the first part of this test for proportionality, first-degree murder is almost certainly the gravest and most serious offense that can be committed under the laws of Michigan. As with juveniles, adult offenders who commit the offense of first-degree murder face the same sentence of life without parole. Because some juvenile offenders will possess the same mental faculties of an adult so that they are equally able to recognize the consequences of their crimes and form an unequivocal premeditated intent to kill in the face of the consequences, it is not categorically disproportionate to punish at least some juvenile offenders the same as adults. Second, there are some nonhomicide offenses that may be viewed as less grave and less serious than first-degree murder and for which only adult offenders face a life-without-parole sentence in this state. For instance, an adult who commits successive first-degree criminal sexual conduct offenses against an individual under the age of 13 faces a sentence of life without parole. MCL 750.520b(2)(c). Accordingly, when the commission of a nonhomicide offense by an adult offender may result in the imposition of a life-without-parole sentence, it does not appear categorically disproportionate to impose a life-without-parole sentence on a juvenile offender for committing the gravest and most serious homicide offense. Third, although this Court is required by Graham to assess the proportionality of a sentence of life without parole imposed on juveniles who commit first-degree murder, we would be derelict if we did not observe that the people of this state, acting through their Legislature, have already exercised their judgment — to which we owe considerable deference — that the sanction they have selected for juvenile first-degree-murder offenders is, in fact, a proportionate sanction. We are not certain that there is a superior test for assessing a determination of proportionality than that a particular sanction is compatible with public opinion and sentiment. Nonetheless, because this Court is required to do so by Graham, we undertake to the best of our ability to exercise independent judgment in analyzing the criminal punishments authorized by our Legislature and assessing their propriety in the light of the crimes for which the Legislature has deemed them proportionate. Turning to whether Michigan’s sentencing scheme for juvenile first-degree-murder offenders is “disproportionate” to sentencing schemes used in other states, defendants have wholly failed to present relevant data demonstrating that Michigan is an outlier when it comes to permitting the imposition of life-without-parole sentences for juvenile first-degree-murder offenders, even on the assumption that being an “outlier” adversely affects our state’s compliance with the United States Constitution. Defendants in their briefs cherry-pick six states in which sentencing schemes have been altered post -Miller to eliminate life-without-parole as a possible sentence for juvenile offenders. The fact that six states have eliminated life-without-parole sentences for juvenile offenders in response to Miller tells us next to nothing about how Michigan’s choice to impose life-without-parole sentences on juveniles convicted of first-degree murder compares to sentencing schemes across the nation, and defendants have come nowhere close to satisfying their burdens in this regard. What trend is demonstrated by the actions of these six states alone? How many states at the time of Miller imposed a sentence of life without parole on juvenile homicide offenders? How many of these states responded to Miller in a manner similar to that of Michigan? What is apparent is that at the time of Miller, “26 States ... [made] life without parole the mandatory (or mandatory minimum) punishment for some form of murder, and would apply the relevant provision to 14-year-olds ----” Miller, 567 US at_n 9; 132 S Ct at 2471 n 9. Another 15 states allowed for the discretionary imposition of life-without-parole sentences on juvenile offenders. Id. at_n 10; 132 S Ct at 2472 n 10. Combined therefore, 41 states exercised the authority under at least some circumstances to impose a life-without-parole sentence on a juvenile. If, as defendants assert, six of those states have departed from this practice by eliminating that sentence altogether, can it be concluded that life-without-parole sentences for juveniles are disproportionte when they remain an option of some kind in 35 states in total, or 70% of the states composing the Union? In summary, we have no evidence that sustains defendants’ burden of demonstrating that Michigan’s statutory scheme is categorically disproportionate to those of other states. As defendants have failed to demonstrate that either part of the federal test for the constitutionality of punishments supports the conclusion that a life-without-parole sentence for juvenile homicide offenders is disproportionate, we decline to hold that the Eighth Amendment of the United States Constitution categorically bars that punishment. 2. STATE CATEGORICAL BAR Defendants next contend that even if the Eighth Amendment does not categorically bar the imposition of sentences of life without parole on juvenile homicide offenders, Const 1963, art 1, § 16 does mandate such a categorical bar. Whereas the Eighth Amendment pro scribes the imposition of “cruel and unusual punishments,” Const 1963, art 1, § 16 states: Excessive bail shall not be required; excessive fines shall not be imposed; cruel or unusual punishment shall not be inflicted; nor shall witnesses be unreasonably detained. [Emphasis added.] The textual difference between the federal constitutional protection and the state constitutional protection is of consequence and has led this Court to conclude that Article 1, § 16 provides greater protection against certain punishments than its federal counterpart in that if a punishment must be both “cruel” and “unusual” for it to be proscribed by the Eighth Amendment, a “punishment that is unusual but not necessarily cruel” is also proscribed by Article 1, § 16. People v Lorentzen, 387 Mich 167, 172; 194 NW2d 827 (1972). This broader protection under Article 1, § 16 against punishments that are merely “unusual” has led this Court to adopt a slightly different and broader test for proportionality than that employed in Graham. See id. at 171-172; see also People v Bullock, 440 Mich 15, 31; 485 NW2d 866 (1992). As set forth in Lorentzen and Bullock, the state test for proportionality assesses (1) the severity of the sentence imposed compared to the gravity of the offense, (2) the penalty imposed for the offense compared to penalties imposed on other offenders in the same jurisdiction, (3) the penalty imposed for the offense in Michigan compared to the penalty imposed for the same offense in other states, and (4) whether the penalty imposed advances the penological goal of rehabilitation. Bullock, 440 Mich at 33-34, citing Lorentzen, 387 Mich at 176-181. At the outset, we note that the LorentzenIBullock test bears a considerable resemblance to the federal test for proportionality because the first three factors combine to effect the same general inquiry as the two-part test employed in Graham. See Bullock, 440 Mich at 33 (“Our analysis in Lorentzen foreshadowed in a striking manner the three-pronged test later adopted by the United States Supreme Court in Solem v Helm, 463 US 277, 290-291; 103 S Ct 3001; 77 L Ed 2d 637 (1983).”). Our conclusion that none of the first three factors supports the inference that a life-without-parole sentence for a juvenile offender is disproportionate under the Eighth Amendment also bears on the first three inquires of the proportionality analysis under the LorentzenIBullock test. Accordingly, only the fourth factor of the LorentzenIBullock test remains to be assessed before weighing these factors and reaching a conclusion about the proportionality of a life-without-parole sentence for a juvenile homicide offender under Article 1, § 16 of our state constitution. Concerning the fourth factor, we concur with the United States Supreme Court’s assessment that a life-without-parole sentence for a juvenile does not serve the penological goal of rehabilitation. Graham, 560 US at 74. As stated in Graham, when life without parole is imposed on a juvenile, “[t]he penalty forswears altogether the rehabilitative ideal. By denying the defendant the right to reenter the community, the State makes an irrevocable judgment about that person’s value and place in society.” Id. Accordingly, the fourth factor of the Lorentzen/Bullock test supports defendants’ contention that a life-without-parole sentence for a juvenile offender is disproportionate. That said, with only one of the four factors supporting the conclusion that life-without-parole sentences are disproportionate when imposed on juvenile homicide offenders, defendants have failed to meet their burden of demonstrating that it is facially unconstitutional under Article 1, § 16 to impose that sentence on a juvenile homicide offender. While the language of the Michigan counterpart to the Eighth Amendment is at some variance from the latter, it is not so substantially at variance that it results in any different conclusion in its fundamental analysis of proportionality. 3. AIDING AND ABETTING Davis argues that even if the Eighth Amendment does not categorically bar imposing sentences of life without parole on juvenile homicide offenders, it at least categorically bars imposing life-without-parole sentences on juvenile homicide offenders, such as himself, convicted of felony murder ostensibly on the basis of an aiding-and-abetting theory. At the outset of our analysis, we note that our Legislature has chosen to treat offenders who aid and abet the commission of an offense in exactly the same manner as those offenders who more directly commit the offense: Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense. [MCL 767.39.] Moreover, the Legislature has enacted a felony-murder statute, which treats the commission of a murder during the course of a robbery as first-degree murder. See MCL 750.316(l)(b). These choices by the Legislature must be afforded great weight in light of the fact that Lockett, one of the capital-punishment cases relied on by the United States Supreme Court in forming the rule in Miller, specifically instructs: That States have authority to make aiders and abettors equally responsible, as a matter of law, with principals, or to enact felony-murder statutes is beyond constitutional challenge. [Lockett, 438 US at 602.] Davis attempts to overcome this constitutional pronouncement in light of his own proposed categorical rule mandating a lesser maximum penalty for aiders and abettors by asserting that Miller and Graham combine to necessitate such a rule. He advances a two-part argument to this effect: (1) the rule in Miller requires individualized sentencing for juvenile offenders in an effort to account for “their lesser culpability,” Miller, 567 US at_; 132 S Ct at 2463, and (2) Graham has already determined that aiders and abettors are sufficiently less culpable that a sentence of life without parole is never constitutionally appropriate, see Graham, 560 US at 69. Although the first part of this syllogism is undoubtedly accurate, the same cannot be said of the second part. Graham made two statements pertinent to the second part of Davis’s argument: The Court has recognized that defendants who do not kill, intend to kill, or foresee that life will he taken are categorically less deserving of the most serious forms of punishment than are murderers.. .. It follows that, when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability. [Id.] In combination with Miller’s requirement that individualized sentencing account for a juvenile’s “lesser culpability,” it has been argued that a juvenile offender cannot be sentenced to life without parole when the defendant did not kill, intend to kill, or foresee that life would be taken as a result of the offense, even when the offense of which the offender was convicted was felony murder. Just such a contention was advanced by Justice Breyer in his concurrence in Miller, in which, addressing specifically the constitutionality of life-without-parole sentences for juvenile offenders convicted of felony murder on an aiding-and-abetting theory, he stated, “Graham dictates a clear rule: The only juveniles who may constitutionally be sentenced to life without parole are those convicted of homicide offenses who ‘kill or intend to kill.’ ” Miller, 567 US at_; 132 S Ct at 2476 (Breyer, J., concurring). Assuming for the sake of argument that some categorical rule of this nature is the necessary product of Graham and Miller, it still does not follow that the rule pertains to and encompasses all instances in which a juvenile aids and abets a felony murder. As recognized by Justice Breyer himself, a juvenile who aids and abets a felony murder may have intended the death of any victim of the offense. Id. at _; 132 S Ct at 2477 (indicating that on remand, the trial court would need to determine if the defendant, who was convicted of felony murder for aiding and abetting the commission of a robbery that resulted in a death, “did intend to cause the clerk’s death”). Further, a juvenile who aids and abets a felony murder may have foreseen that a life might be taken as a result of his offense, but proceeded notwithstanding to engage in the underlying offense with indifference to this risk. Accordingly, when a juvenile can be convicted of felony murder on an aiding- and-abetting theory while either intending to kill or having foreseen the possibility that a life could be taken, any categorical rule gleaned from Graham pertaining to the limited situation in which a juvenile homicide offender lacked the intent to kill and did not foresee the possibility that a life could be taken will once again not categorically bar the imposition of a sentence of life without parole for that offense. This conclusion is entirely consistent with, and arguably dictated by, the individualized sentencing process required by Miller. In seeking to assess a juvenile offender’s moral culpability, Miller instructs trial courts to consider the “ ‘circumstances of the particular offense and the character and propensities of the offender.’ ” Id. at_n 9; 132 S Ct at 2471 n 9, quoting Roberts, 428 US at 333, and citing Sumner, 483 US 66 (emphasis added). A categorical rule altogether foreclosing a trial court from imposing a life-without-parole sentence on a juvenile convicted of felony murder on an aiding-and-abetting theory obviates the necessity for any evaluation of either the circumstances of the individual defendant’s offense or the individual defendant’s character. Such a categorical rule would permit a defendant to avoid a life-without-parole sentence for aiding and abetting a felony murder even if the defendant was closely nearing the age of 18 at the time of the offense, intended the death of the victim by instructing a coconspirator to fire the fatal shot, and had had previous encounters with the criminal justice system that demonstrated a lack of amenability to rehabilitation. Because it is not difficult to imagine such a defendant, and because imposing a life-without-parole sentence on that defendant would be warranted and entirely constitutional under Miller, we reject Davis’s facial challenge and his contention that the Eighth Amendment categorically bars the imposition of a life-without-parole sentence on a juvenile convicted of felony murder on an aiding-and-abetting theory. 4. RIPENESS Eliason asserts that Const 1963, art 1, § 16 categorically bars the imposition of a sentence of life without parole on a juvenile homicide offender who is 14 years of age at the time of the offense. For Eliason’s facial challenge to be ripe, there must be “a real and immediate threat... as opposed to a hypothetical one” that a sentence of life without parole will be imposed on him. Conat, 238 Mich App at 145, citing Los Angeles v Lyons, 461 US 95, 101-101; 103 S Ct 1660; 75 L Ed 2d 675 (1983), and Dep’t of Social Servs v Emmanuel Baptist Preschool, 434 Mich 380, 410; 455 NW2d 1 (1990) (CAVANAGH, J.). Put differently, in determining whether an issue is justiciably “ripe,” a court must assess “ ‘whether the harm asserted has matured sufficiently to warrant judicial intervention.’ ” Emmanuel Baptist, 434 Mich at 412 n 48 (citation omitted). Inherent in this assessment is the balancing of “any uncertainty as to whether defendant[] will actually suffer future injury, with the potential hardship of denying anticipatory relief.” Id. at 412, citing Abbott Laboratories v Gardner, 387 US 136, 148-149; 87 S Ct 1507; 18 L Ed 2d 681 (1967). Eliason was 14 years of age at the time of his offense and was initially sentenced to life without parole. However, because Eliason’s case is on direct review, he is entitled to resentencing pursuant to MCL 769.25(l)(b)(ii). Under MCL 769.25(9), the default sentence for a juvenile convicted of first-degree murder is a sentence of a term of years within specific limits rather than life without parole. A juvenile defendant will only face a life-without-parole sentence if the prosecutor files a motion seeking that sentence and the trial court concludes following an individualized sentencing hearing in accordance with Miller that such a sentence is appropriate. MCL 769.25(2) through (7). Although the prosecutor has filed a motion seeking the imposition of a sentence of life without parole, it is no more than speculation whether the trial court will depart from the default sentence in response to the prosecutor’s motion and impose a life-without-parole sentence, and it is not apparent that Eliason faces a “real and immediate” threat of receiving a life-without-parole sentence. Furthermore, because he will be facing a minimum sentence of “not less than 25 years,” MCL 769.25(9), to deny on ripeness grounds the relief Eliason seeks will cause him no legally cognizable hardship or harm. If a life-without-parole sentence is imposed at resentencing, Eliason will have more than ample time to appeal and assert either an as-applied or a facial constitutional challenge to his sentence before he completes the minimum possible sentence for his offense. Accordingly, in light of Eliason’s being entitled to resentencing under MCL 769.25, his facial constitutional challenge to life-without-parole sentences for juvenile homicide offenders who are 14 years of age at the time of their offense is no longer justiciable. V CONCLUSION For these reasons, we hold that the rule set forth in Miller should not be retroactively applied under either the federal retroactivity test set forth in Teague or Michigan’s separate and independent retroactivity test set forth in Sexton and Maxson. In so doing, we affirm the judgments of the Court of Appeals in Carp and Davis that Miller should not be applied retroactively. We further hold that neither the Eighth Amendment nor Const 1963, art 1, § 16 categorically bars the imposition of a sentence of life without parole on a juvenile first-degree-murder offender or a juvenile convicted of felony murder on the basis of an aiding-and-abetting theory. Finally, we hold that Eliason’s facial constitutional challenge is no longer ripe and therefore remand his case for resentencing pursuant to MCL 769.25. YOUNG, C.J., and ZAHRA and VIVIANO, JJ., concurred with Markman, J. The Court of Appeals also opined in dictum how Miller should be applied by trial courts in resentencing juvenile first-degree-murder offenders in cases that were not presented on collateral review. Carp, 298 Mich App at 523-537. At trial, Davis testified that he had not participated in the robbery, but that a third cohort, “Shay-man,” and the other cohort, had committed the offense without Davis's help or encouragement. A federal district court dismissed Davis’s federal habeas petition, expressly rejecting his contention "that there was insufficient evidence to convict him of first-degree felony murder.” Davis v Jackson, unpublished opinion and order of the United States District Court for the Eastern District of Michigan, issued April 30,2008 (Docket No. 01-CV-72747), p 9. The court relied on the surviving victim’s “testi[mony] that both [Davis] and his co-defendant fired their weapons at the decedent.” Id. Davis challenged the credibility of this witness, but the court rejected this assertion because “[t]he testimony of a single, uncorroborated prosecuting witness or other eyewitness is generally sufficient to support a conviction, so long as the prosecution presents evidence which establishes the elements of the offense beyond a reasonable doubt.” Id. at 11. The court later denied Davis’s request for a certificate of appealability. Davis v Jackson, unpublished order of the United States District Court for the Eastern District of Michigan, entered June 4, 2008 (Docket No. 01-CV-72747). The United States Court of Appeals for the Sixth Circuit affirmed this denial, stating that “[a]n eyewitness . . . testified that both Davis and his co-perpetrator fired shots at the decedent.” Davis v Jackson, unpublished order of the United States Court of Appeals for the Sixth Circuit, entered July 14, 2009 (Docket No. 08-1717), p 2. MCL 769.25a(3) contains a similar exception to the prospective application of MCL 769.25 in the event that this Court or the United States Supreme Court holds that Miller applies retroactively to juvenile first-degree-murder offenders convicted on a felony-murder theory under MCL 750.316(l)(b). The Court’s basis for prescribing this rule, distinguishing between adult and juvenile offenders for purposes of constitutional analysis, rested on three factors: (1) juveniles, by way of their “lack of maturity,” tend to engage in “impetuous and ill-considered actions,” (2) “juveniles are more vulnerable or susceptible to negative influences and outside pressures” because they “have less control... over their own environment,” and (3) “the character of a juvenile is not as well formed as that of an adult.” Roper, 543 US at 569-570 (citation and quotation marks omitted). This is but one of several statements from Miller highlighting the limited effect of its rule as it pertains to requiring “a certain process” rather than “categorically bar[ring] a penalty.” In the paragraph in which it describes its holding and addresses the sentencer’s obligations before imposing a life-without-parole sentence, the Court stated, “[W]e do not foreclose a sentencer’s ability to make that judgment in homicide cases . ...” Id. at ,_; 132 S Ct at 2469. Additionally, in discussing the breadth of its holding, the Court stated unequivocally that it has not placed any bar on imposing a life-without-parole sentence on juvenile homicide offenders because it had declined to even reach the question of whether the Eighth Amendment requires such a bar. See id. at_; 132 S Ct at 2469 (“[W]e do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles . ...”). Indeed, the only opinion in Miller even to entertain the possibility that the Eighth Amendment imposes a categorical bar on life-without-parole sentences for juvenile homicide offenders was Justice Breyer’s concurrence, joined in only by Justice Sotomayor, in which he stated, Given Graham's reasoning, the kinds of homicide that can subject a juvenile offender to life without parole must exclude instances where the juvenile himself neither kills nor intends to kill the victim. [Id. at_; 132 S Ct at 2475-2476 (Breyer, J., concurring).] Had the Court itself adopted Justice Breyer’s proposed rule, then Miller might be said to have the same form and effect of the categorical rules adopted in Graham and Roper, but the Court did not. The dissent in this case further errs in its attempt to read the rule in Miller and the rule proposed by Justice Breyer as one and the same. See post at 545. Whereas the rule proposed by Justice Breyer draws a bright line, foreclosing the state’s ability to impose a sentence of life without parole for a juvenile convicted of a homicide offense in which the juvenile offender did not kill or intend to kill, the rule in Miller does not foreclose imposing a life-without-parole sentence on such an offender. This is because the rule in Miller, unlike that proposed by Justice Breyer, requires a sentencer to look at not only the circumstances of the offense, but also at the characteristics of the defendant such that a juvenile homicide offender who did not kill or intend to kill could be sentenced to life without parole if the offender, for example, possessed a prior criminal record, showed no signs of amenability to rehabilitation, and exhibited mental faculties similar to those possessed by an adult offender. The dissent does not appear to dispute that the rule in Miller has the form and effect of the rules from Woodson, Lockett, and Eddings, rather than those from Roper and Graham, when it describes the latter decisions as having “forbade” and “prohibited” specific types of punishments as applied to juveniles while describing Miller as having “struck down a sentencing scheme.” Post at 531. This general rule of nonretroactivity stands in contrast to the general rule requiring the retroactive application of new rules to cases that have not become final for purposes of direct appellate review before the new rule is announced. Griffith v Kentucky, 479 US 314, 328; 107 S Ct 708; 93 L Ed 2d 649 (1987). By our count, Carp and Davis are 2 of 334 defendants currently serving life-without-parole sentences in Michigan for crimes committed before they turned 18 years of age whose sentences became final for purposes of direct review before the Supreme Court’s decision in Miller. To fully understand the effect of applying Miller retroactively, it may be helpful to briefly consider the demographics and case histories of the defendants who would be entitled to resentencing if Miller is applied retroactively. There are at least two reasons why these factors are relevant to the Miller analysis: first, Miller focuses its individualized sentencing analysis on the defendant’s circumstances and personal characteristics at the time of the offense, so any retroactive application of Miller necessarily requires an analysis specific to that time, however long ago it may have been. The older the case generally, the greater the state’s interest in finality and, concomitantly, the more burdensome it is likely to be to accurately reconstruct what characterized the offense and the offender at that time. Second, because Miller identifies age and mental development as two consequential factors in determining whether a life-without-parole sentence is constitutionally permissible for a juvenile offender, that sentence is increasingly likely to be permissible the closer an offender was to 18 years of age at the time of the offense. See note 35 of this opinion. Of the 334 affected defendants, 4 were 14 years of age when they committed their first-degree-murder offenses, 44 were 15 years of age, 105 were 16 years of age, and 181 were 17 years of age. Of the 181 defendants who were 17 years of age at the time of their offenses, 28 were within two months of turning 18 years of age, with several of those individuals within days of turning 18. As for when the defendants were initially sentenced, 172 of the defendants were sentenced at least 20 years ago, with several sentenced as early as the mid- to late 1970s. Another 83 defendants were sentenced between 15 and 20 years ago, 46 were sentenced between 10 and 15 years ago, 33 were sentenced between 5 and 10 years ago, and none were sentenced within the last 5 years. Nonetheless, we observe that [i]n order to qualify as watershed, a new rule must meet two requirements. First, the rule must be necessary to prevent an impermissibly large risk of an inaccurate conviction. Second, the rule must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding. [Whorton, 549 US at 418 (citations and quotation marks omitted).] In applying this standard, the only rule that the United States Supreme Court has ever identified as a “watershed rule” for purpose of Teague’s second exception is the rule drawn from Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), which established that the Sixth Amendment included the right to appointed counsel at trial for indigent defendants. See Whorton, 549 US at 419. Furthermore, the sentencing rule in Miller has no possible effect in preventing any “impermissibly large risk of an inaccurate conviction” and pertains to no “bedrock procedural elements essential to the fairness of a proceeding.” Although the dissent argues that Schriro’s definition of a rule that alters the range of punishments is “inclusive and not exclusive,” post at 545 n 68, the dissent fails to identify a single Supreme Court decision that classifies a rule as “altering the range” of punishments when the rule requires the sentencer to consider a lesser punishment, hut does not exclude any punishment from the range of punishments that may be considered. Despite no such decision, the dissent would make retroactive a type of rule that the Supreme Court has never before granted retroactive status under Teague’s first exception to the general rule of nonretroactivity. Notable to the scope and application of this third description, both Bousley and Davis involved collateral attacks to federal criminal convictions in which such attacks were dependent on the interpretation of federal law, rather than the development of a new constitutional rule. Carp and Davis argue that the sentence imposed on them was a sentence of “mandatory” life without parole. Regardless of the process by which a defendant is sentenced to life without parole, however, the term that the defendant serves is simply life without parole. Had, for instance, Carp and Davis received all the procedural protections afforded by Miller ■ before being sentenced, the terms they would serve in prison would be identical. The specific manner in which a defendant is sentenced, i.e., by operation of law or as a result of individualized sentencing, does not alter the actual sentence rendered or the length of time the defendant must remain in prison. The dissent asserts that the rule in Miller, although having “procedural implications,” is nonetheless substantive because it invalidated “an entire ‘sentencing scheme.’ ” Post at 540. While the dissent is correct that Miller invalidated Michigan’s sentencing scheme authorizing the imposition of a life-without-parole sentence for a juvenile homicide offender, Ring also invalidated Arizona’s sentencing scheme authorizing the imposition of capital punishment on a homicide offender. As Ring was deemed procedural, it follows that the distinction between substantive and procedural rules does not turn on whether the new rule invalidates a sentencing scheme authorizing a punishment. Instead, the distinction turns on whether the punishment is one that the state may constitutionally impose under any conceivable sentencing scheme governing the class of defendants to which the defendant belongs. The dissent argues that while a shift in decision-making authority from a judge to a jury is procedural, a shift in decision-making authority from the legislature to the judiciary is substantive because it vests new authority (the authority to impose a lesser sentence) in the judiciary. Post at 544-545. Although we acknowledge that there is a difference between these respective shifts in decision-making authority, we do not find the difference pivotal in determining whether a new rule is substantive or procedural. This is because the question at hand is not focused on whether the judiciary’s or the legislature’s or the executive’s authority has changed as a function of the new rule, but inquires only whether the punishment imposed is one that is beyond the state’s or the law’s power to impose. Schriro, 542 US at 352 (defining a rule as substantive when it “placets] particular conduct or persons covered by the statute beyond the State’s power to punish” or means that the defendant “faces a punishment that the law cannot [any more] impose upon him”) (emphasis added). Both before and after Miller the state of Michigan possessed the authority to constitutionally impose a sentence of life without parole on a juvenile homicide offender. One of the critical divides between how this majority resolves the question of Miller’s retroactivity and how the dissent resolves the same question centers on the significance each accords to the words the Supreme Court chose to use in describing the rule in Miller. Despite its many thoughtful arguments, the dissent is unable to explain why the Supreme Court, if it genuinely intended for the rule in Miller to be applied retroactively under Teague, specifically stated that the rule in Miller does not “categorically bar a penalty,” Miller, 567 US at_; 132 S Ct at 2471, when the “categorical bar” versus “noncategorical bar” distinction defines the critical element of the retroactivity analysis in Teague. The dissent contends that by focusing on “categorical” versus “noncategorical” distinction, the majority “muddles” the Teague analysis. Post at 540. However, it is the dissent that misapprehends Teague by its conclusion that the rule in Miller is entitled to retroactive application despite its acknowledgement that Miller did not categorically bar life-without-parole sentences for juveniles. Id. Neither defendants nor the dissent has identified a single Supreme Court decision that has ever concluded that a noncategorical rule is entitled to retroactive application under the first of Teague’s two exceptions to the general rule of nonretroactivity. From this, we can only reason that Teague does not merely stand for the proposition, as the dissent asserts, that a categorical rule is substantive, but also for the proposition that a rule is substantive only when it is categorical. We include federal courts of appeal in our discussion because Carp cites federal courts of appeal decisions for the proposition that the capital-punishment strand of precedent has been applied retroactively. We further note that even if Sumner had applied Woodson retroactively to a case that had become final for direct review purposes before Woodson was announced, it still would not follow that Woodson qualified for retroactive application under Teague. This is because Sumner was decided in 1987 and Teague, in which a plurality of the United States Supreme Court announced the current federal retroactivity test, was not decided until 1989. It is for this same reason that we reject Carp’s contention that the retroactive application of Lockett’s rule in Songer v Wainwright, 769 F2d 1488, 1489 (CA 11, 1985), and Dutton v Brown, 812 F2d 593, 599 n 7 (CA 10,1987), carries any weight with regard to whether those courts applying Lockett retroactively would have done so under Teague. The same can also he said about the significance of the retroactive application of the rule from Furman as acknowledged in Michigan v Payne, 412 US 47, 57 n 14; 93 S Ct 1966; 36 L Ed 2d 736 (1973). In framing the issue before the court, the Eleventh Circuit stated: On appeal, Thigpen raises only one issue: whether the admission of evidence that he was convicted in 1972 of another first-degree murder and received a death sentence ... rendered his trial so fundamentally unfair that he was convicted without the due process of law. For the reasons set forth below, we affirm the district court’s conclusion that Thigpen’s conviction was constitutional. [Thigpen, 926 F2d at 1005.] Because Carp’s argument fails here, we find it unnecessary to address whether Miller adds the elements of age and incorrigibility to what must be found before a life-without-parole sentence may be imposed on a juvenile homicide offender. We do note that Miller’s repeated statements that individualized sentencing hearings could occur before a “ judge or jury,” Miller, 567 US at_; 132 S Ct at 2460, 2470, 2475, tend to suggest that Miller did not make age or incorrigibility aggravating elements because under Alleyne aggravating elements that raise the mandatory minimum sentence “must be submitted to the jury and found beyond a reasonable doubt,” Alleyne, 570 US at_; 133 S Ct at 2155. (Emphasis added.) However, because Alleyne was decided after Miller, Miller’s reference to individualized sentencing being performed by a “judge or jury” might merely be instructive on the issue but not dispositive. As none of the defendants before this Court asserts that his sentence is deficient because it was not the product of a jury determination, we find it unnecessary to further opine on this issue and leave it to another day to determine whether the individualized sentencing procedures required by Miller must be performed by a jury in light of Alleyne. Treating Alleyne as a procedural rule is consistent with how multiple federal courts have resolved the issue of whether Alleyne is procedural or substantive for federal retroactivity purposes. See, e.g., Simpson v United States, 721 F3d 875, 876 (CA 7, 2013) (comparing Alleyne to the rule from Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), which has been held to be procedural); United States v Evans,_ F Supp 2d_(WD Ark, February 25, 2014, Case Nos. 1:11-CR-10012 and 1:13-CV-1025), citing United States v Lara-Ruiz, 721 F3d 554, 557 (CA 8, 2013); Willoughby v United States,_F Supp 2d_(WD NC, September 17, 2013, Case Nos. 3:13-CV-493-FDW and 3:99-CR-24-FDW-6). Tellingly, with regard to the prosecutor’s intentions in Jackson, we further note that on remand the prosecutor conceded the defense of retroactivity, but did so only on the basis “that Jackson is entitled to the benefit of the United [States] Supreme Court’s opinion in his own case.” See Jackson v Norris, 2013 Ark 175, p 6; 426 SW3d 906 (2013) (emphasis added). The dissent similarly acknowledges that the Supreme Court’s application of the rule in Miller to Jackson is “inconclusive” about whether the rule should be applied retroactively and that the relief Jackson received does not mandate the retroactive application of Miller to any other case. Post at 535 n 31. Although the issue was not raised in any way by any of the defendants, the dissent argues that Miller is similar to Atkins v Virginia, 536 US 304; 122 S Ct 2242; 153 L Ed 2d 335 (2002), because “considerable discretion” is left to the states by both rules, so that where Atkins has been applied retroactively, so too should Miller. Post at 547-549. While the dissent is not incorrect to suggest that Miller and Atkins both allow some discretion to the states, it fails to examine this issue with greater precision. Atkins held that the Eighth Amendment bars the imposition of capital punishment on a “mentally retarded offender.” Atkins, 536 US at 321. Atkins, however, left it to the discretion of the states to establish criteria for whether a defendant qualifies as “mentally retarded.” Id. at 317. Accordingly, the discretion left to the states by Atkins pertains to when Atkins applies and which defendants fall within the universe of defendants governed by Atkins. Once a defendant is deemed to be mentally retarded, however, the state’s discretion ceases and Atkins compels the single result that the state is constitutionally prohibited from imposing capital punishment on the defendant. Under Miller, by contrast, all juveniles are entitled to individualized sentencing hearings and accordingly the state has no discretion to determine when, and to which defendants, Miller applies. Instead, the discretionary element oí Miller only comes into play in selecting a sentence for a defendant after it has been determined, per Miller, that the defendant is a juvenile by virtue of being under the age of 18 at the time of the offense. In this regard, the rules announced in Atkins and Miller have both different forms and different effects. That is, Atkins has the form of a categorical rule in that after a state has determined that a defendant is “mentally retarded,” it applies to bar the imposition of capital punishment on that defendant, while Miller has the form of a noncategorical rule in that it requires individualized sentencing before a life-without-parole sentence may be imposed on a juvenile homicide offender but expressly does not bar the imposition of that sentence. Further, the effect of Atkins wifi always produce a single result in invalidating the capital sentence of every defendant who falls within the rule because the defendant is “mentally retarded,” while the effect of Miller will necessarily result in the imposition of a variety of sentences for different offenders, creating only the potential that any given juvenile will receive a sentence other than life without parole. Contrary to Carp’s and Davis’s assertions, and consistently with the general principle of nonretroactivity, this Court does not adhere to the doctrine that an unconstitutional statute is void ab initio. People v Smith, 405 Mich 418, 432-433; 275 NW2d 466 (1979). In rejecting this doctrine, this Court in Smith, 405 Mich at 432, cited Lemon v Kurtzman, 411 US 192; 93 S Ct 1463; 36 L Ed 2d 151 (1973), which, for federal retroactivity purposes, departed from the view that an unconstitutional statute is a nullity ah initio. Smith also quoted Chicot Co Drainage Dist v Baxter State Bank, 308 US 371; 60 S Ct 317; 84 L Ed 329 (1940), for the proposition that a new constitutional rule does not always nullify past application of the old rule when the old rule was understood to have conformed with the Constitution at the time it was applied: “ ‘The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.’ ” Smith, 405 Mich at 432, quoting Chicot Co, 308 US at 374. The new rule made retroactive in McConnell was set forth in Mempa v Rhay, 389 US 128; 88 S Ct 254; 19 L Ed 2d 336 (1967), and held that the Sixth Amendment right to counsel, including the appointment of counsel for indigent defendants, extended to the sentencing phase of a criminal trial. McConnell, 393 US at 2-3. The Sixth Amendment right to counsel has been described as a right “necessary to insure fundamental human rights of life and liberty” with “[t]he Sixth Amendment stand[ing] as a constant admonition that if the constitutional safeguards it provides be lost, justice will not ‘still be done.’ ” Johnson v Zerbst, 304 US 458, 462; 58 S Ct 1019; 82 L Ed 1461 (1938), citing Palko v Connecticut, 302 US 319, 325; 58 S Ct 149; 82 L Ed 288 (1937). In Gideon, 372 US at 344, the Sixth Amendment right to counsel was described as “fundamental and essential to fair trials,” such that indigent criminal defendants facing felony charges are entitled to the appointment of counsel. As McConnell noted, rules extending “a criminal defendant’s right to counsel at trial, Gideon v. Wainwright, 372 U. S. 335 (1963) ; at certain arraignments, Hamilton v. Alabama, 368 U. S. 52 [82 S Ct 157; 7 L Ed 2d 114] (1961) ; and on appeal, Douglas v. California, 372 U. S. 353 [83 S Ct 814; 9 L Ed 2d 811] (1963), have all been applied retroactively.” McConnell, 393 US at 3. In fact, the right to counsel is such a uniquely fundamental right that Gideon remains “the only case that [the United States Supreme Court has] identified as qualifying under the [watershed rule of criminal procedure exception to nonretroactivity from Teague].” Whorton, 549 US at 419. See Sawyer v Smith, 497 US 227, 257-258; 110 S Ct 2822; 111 L Ed 2d 193 (1990) (Marshall, J., dissenting) (“The Court’s refusal to allow Sawyer the benefit of Caldwell [v Mississippi, 472 US 320; 105 S Ct 2633; 86 L Ed 2d 231 (1985)] reveals the extent to which Teague and its progeny unjustifiably limit the retroactive application of accuracy-enhancing criminal rules. Prior to Teague, our retroactivity jurisprudence always recognized a difference between rules aimed primarily at deterring police conduct and those designed to promote the accuracy of criminal proceedings.”). ^e recognize that the prosecutor in Davis and the Attorney General as an intervenor in Carp both assert that this Court should abandon Michigan’s separate test for retroactivity and adopt Teague as our state test. We further recognize the anomalousness of this Court applying new federal rules retroactively pursuant to a standard that is more expansive than that which the United States Supreme Court has directed be applied by federal courts themselves. This anomalousness — at least as it applies to Michigan’s retroactive application of new federal rules — is further heightened when, as in the instant case, (a) the federal rule contradicts the laws of our state as enacted by the Legislature in accordance with the will of the people of Michigan and (b) the Supreme Court has, for purposes of federal court application, specifically rejected the retroactivity test adopted by Michigan. See Teague, 489 US 288. This issue not having been the focal point of briefing or argument, we do not address it further in this case. Interestingly, we note that none of the 334 defendants who would receive resentencing under Miller if it were applied retroactively to cases that had become final before Miller was issued was sentenced after Graham was decided. Therefore, to whatever extent it might he argued that Graham weakened the constitutional foundation of the old rule permitting life-without-parole sentences for juvenile homicide offenders, the argument is of little relevance to the retroactive application of Miller regarding any juvenile defendants currently serving life-without-parole sentences in Michigan. Even with respect to the 34 defendants sentenced post-Roper, there was no cause for prosecutors to believe that the decision had any significant bearing on their ability, on behalf of the people of Michigan, to constitutionally seek a sentence of life without parole or that it brought into question the decision in Launsburry upholding the imposition of life-without-parole sentences. Although Maxson’s analysis of the second factor focused exclusively on whether the defendants in that case had detrimentally relied on the old rule without considering the extent to which prosecutors had detrimentally relied on the old rule, Maxson’s approach to analyzing the second factor is not inconsistent with the approach we use today. When there are two relevant entities, concluding that one of these entities has or has not relied detrimentally on the old rule may be sufficient to reach a conclusion concerning the effect of the second factor on retroactivity. In Maxson, it was clear that the defendants’ detrimental reliance on the old rule was insignificant so it was unnecessary to consider the extent to which prosecutors had relied on the old rule at issue in that case. Although the inverse is largely true here in that the detrimental reliance interests of prosecutors across this state are considerable, we have reviewed what is asserted to be Carp’s and Davis’s detrimental reliance on the old rule and see none. Once again, merely to act in accord with the old rule is not tantamount to detrimental reliance. The dissent similarly struggles to identify what action that would have benefited the 334 defendants was taken or not taken in “detrimental reliance” on the old rule. First, the dissent asserts that trial courts would have engaged in individualized sentencing hearings, but for the old rule. Post at 552. This, however, is an action that courts, not a defendant, would have taken, and essentially asserts nothing more than that Miller has altered the rules. Second, the dissent argues that defendants relied on the old rule by not seeking appellate review of their life-without-parole sentences. Post at 552. In making this argument, the dissent compares this case to Maxson, in which this Court suggested that a defendant’s decision not to pursue an appeal could constitute an action that the defendant opted not to take in reliance on the old rule. Maxson, 482 Mich at 394-395. However, Maxson was addressing the retroactivity of Halbert v Michigan, 545 US 605; 125 S Ct 2582; 162 L Ed 2d 552 (2005), “which held that indigent defendants who plead guilty to criminal offenses are entitled to appointed appellate counsel on direct appeal.” Maxson, 482 Mich at 387. Accordingly, the old rule analyzed in Maxson, that indigent defendants who pleaded guilty to criminal offenses were not entitled to appointed appellate counsel on direct appeal, served as a direct impediment to a defendant’s ability to file an appeal after pleading guilty. In these cases, the pr e-Miller constitutionality of imposing life-without-parole sentences on juvenile homicide offenders by mandatory operation of law did nothing to hinder a defendant’s ability to file an appeal challenging Michigan’s then extant sentencing scheme or its personal application. Furthermore, as Michigan caselaw had specifically upheld the constitutionality of our pr e-Miller sentencing scheme, Launsburry, 217 Mich App 358, it is unclear how defendants’ failures to seek appellate review proved detrimental. While the dissent is obviously correct that their interests were not favored under the old rule to the extent they are under the new rule, that is not the equivalent of having “detrimentally relied” on the old rule. In focusing on the age of the defendants who would receive resentencing if Miller were applied retroactively, we nowhere suggest that age is the exclusive factor that the trial court should consider in imposing a sentence on a juvenile homicide offender, and we agree with the dissent that Miller calls for a “multifaceted” approach to sentencing. Compare page 466 of this opinion with post 553 n 88. However, in light of the other factors that Miller instructs a trial court to consider, it seems apparent that a juvenile’s age at the time of the offense will weigh relatively heavily at sentencing hearings. In most cases, a juvenile’s age will reasonably correspond to his or her mental and emotional development as well as the ability to overcome a difficult family and home life. Additionally, as a juvenile approaches 18 years of age at the time of the offense, and may even turn 18 during the proceedings related to the offense, it follows that the “incompetencies associated with youth” will come to have increasingly less of an effect on the juvenile’s ability to communicate with, and to assist, his or her attorneys in their legal preparations. Accordingly, while age is by no means the only factor to be considered in imposing a sentence pursuant to Miller, an offender’s age is likely to be given significant weight in the court’s deliberations and may well constitute the single best factor for ascertaining whether a Miller-benefited offender would actually gain relief if Miller were applied retroactively. The Eighth Amendment of the United States Constitution reads: Excessive hail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. [US Const, Am VIII.] The inclusion of proportionality review under Article 1, § 16 has been the subject of significant disagreement. Bullock, 440 Mich at 46 (Riley, J., concurring in part and dissenting in part) (“I believe that People v Lorentzen .. ., the principle case relied on by the majority to support its conclusion, was wrongly decided and that proportionality is not, and has never been, a component of the ‘cruel or unusual punishment’ clause of this state’s constitution.”); People v Correa, 488 Mich 989, 992 (2010) (Markman, J., joined by Corrigan and Young, JJ., concurring) (“[A]t some point, this Court should revisit Bullock’s establishment of proportionality review of criminal sentences, and reconsider Justice Riley’s dissenting opinion in that case.”). However, because life without parole is not a categorically disproportionate sentence for a juvenile homicide offender, we find it unnecessary in this case to resolve whether proportionality review is rightly a part of the protection in Article 1, § 16 against “cruel or unusual punishment,” instead assuming for the sake of argument that it has a place in an analysis under Article 1, § 16. In accepting this conclusion, this Court, as did the United States Supreme Court, speaks of “rehabilitation” exclusively within the context of a defendant reforming himself or herself for the purpose of reintegration into society. See Graham, 560 US at 74. This, however, is not to foreclose the ability of a person, however long the person is to he incarcerated, to rehabilitate himself or herself in the sense of fully comprehending the nature of the wrong, achieving a greater awareness of and commitment to the elements of moral behavior, attaining a sincere adherence to religious faith, or contributing in positive ways to those with whom the person interacts in whatever environment he or she has been placed. We speak of the felony-murder statute in terms of the underlying felony being a robbery merely because the underlying felony in Davis’s case was a robbery. The reasoning put forth in this part, however, would apply equally when the underlying felony is any one of the other felonies listed in MCL 750.316(l)(b). Although we assume for the sake of argument that such a categorical rule may exist, nothing in this opinion should be understood as actually accepting or adopting such a rule. To the contrary, we note that a categorical rule mandating that a subclass of aiders and abettors be treated differently with respect to what punishments can be imposed would run directly contrary to both the aforementioned statement in Lockett and MCL 767.39. Further, Justice Breyer in his concurrence spoke only for himself and one other justice. To the extent that Graham and Miller might create a categorical rule prohibiting life-without-parole sentences for juveniles convicted of aiding and abetting a felony murder “who do not kill, intend to kill, or foresee that life will be taken,” Graham, 560 US at 69, Davis would not he entitled to relief under that rule. Although the trial court concluded at sentencing that Davis was not the shooter, it did not make an explicit finding regarding Davis’s intentions about the victim’s death, and it made no findings indicative of whether he foresaw the potential that life would he taken as a result of the armed robbery in which he engaged. To go back and attempt to make these findings now would entail engaging in the broader individualized sentencing procedures called for by Miller that we have already determined today need not be engaged in retroactively. This holding carries with it the conclusion that some juveniles convicted of felony murder on an aiding-and-abetting theory might be as morally culpable for their crimes as juveniles who commit premeditated first-degree murder and not simply as legally culpable. A juvenile convicted of felony murder on an aiding-and-abetting theory can be said to have committed as grave an offense as a juvenile who commits premeditated first-degree murder. Accordingly, for the purpose of Davis’s challenge under Const 1963, art 1, § 16, the first two factors of the LorentzenIBullock proportionality test will be resolved in a fashion identical to how they were resolved for life-without-parole sentences generally. Concerning the third factor, Davis fails to present any data specific to how other jurisdictions sentence juveniles convicted of felony murder on an aiding-and-abetting theory, only putting forth a sampling of how a very few states now sentence juveniles convicted of first-degree murder generally. In the absence of evidence to the contrary, we are left to assume that a majority of other states hold aiders and abettors equally responsible for their offenses. Accordingly, the third factor also counsels against a finding of disproportionality. Because only the fourth factor of the Lorentzen/Bullock proportionality test, pertaining to rehabilitation, favors holding life-without-parole sentences for juveniles convicted of felony murder on an aiding-and-abetting theory unconstitutional, Davis’s facial challenge under Article 1, § 16 fails as well. As conceded by the parties at oral argument, Eliason’s other issues on which this Court granted leave to appeal are moot as a result of the enactment of MCL 769.25.
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MARKMAN, J. The issue in this case is whether title owners of real property may be held liable for a public nuisance that arose from that property, where someone other than the title owners is in possession of the property, is exercising control over the property, and is the one who created the alleged nuisance. We hold that title owners of the real property cannot be held liable for a public nuisance under such circumstances. Therefore, we reverse that portion of the Court of Appeals’ judgment that held to the contrary and reinstate the trial court’s order granting defendants’ motion for summary disposition. I. PACTS AND HISTORY In 2010, Terri Sholberg while driving her car hit a horse that was standing in the road and died as a result. Plaintiff, as personal representative of her estate, brought this action against Daniel Truman, the owner of the horse that had escaped from its stall on the farm, and his brother and sister-in-law, Robert and Marilyn Truman (“defendants”), the title owners of the farm operated by Daniel Truman. Other than being the title owners, defendants have nothing to do with the farm or with any of the animals on the farm, including the horse struck by plaintiffs decedent. Plaintiff has presented evidence of at least 30 instances of animal elopement near the farm between 2003 and 2010, each of which allegedly created a hazard on the surrounding public roads.3 Marilyn Truman testified that no later than 2000, she received two or three telephone calls from people looking for Daniel Truman because his animals were loose. A default judgment was entered against Daniel Truman. However, the trial court granted defendants’ motion for summary disposition, concluding that they could not be held liable for public nuisance because they were not in possession of the property. The Court of Appeals reversed with regards to the public nuisance claim, 6holding that “the Trumans owned the Property from which the alleged nuisance arose, which is sufficient to bring a nuisance action against them.” Sholberg v Truman, unpublished opinion per curiam of the Court of Appeals, issued November 15, 2012 (Docket No. 307308). This Court then directed that oral argument be heard on defendants’ application for leave to appeal and directed the parties to address “whether, and under what circumstances, a property owner who is not in possession of the property and does not participate in the conduct creating an alleged nuisance may be liable for the alleged nuisance,” In re Sholberg Estate, 494 Mich 867 (2013), and argument was heard on December 12, 2013. II. STANDARD OF REVIEW A trial court’s decision on a motion for summary disposition is reviewed de novo. Malpass v Dep’t of Treasury, 494 Mich 237, 245; 833 NW2d 272 (2013). The interpretation and applicability of a common-law doctrine is also a question that is reviewed de novo. People v Petty, 469 Mich 108, 113; 665 NW2d 443 (2003). III. ANALYSIS As an initial matter, the lower courts and the parties all assumed that incidents of animal elopement can constitute a public nuisance, and thus we too will assume, without deciding, that incidents of animal elopement can constitute a public nuisance. “A public nuisance involves the unreasonable interference with a right common to all members of the general public.” Adkins v Thomas Solvent Co, 440 Mich 293, 304 n 8; 487 NW2d 715 (1992). “No better definition of a public nuisance has been suggested than that of an act or omission which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects.” Garfield Twp v Young, 348 Mich 337, 341-342; 82 NW2d 876 (1957) (quotation marks and citation omitted). “There is no doubt that nuisance is a tort....” Pohutski v City of Allen Park, 465 Mich 675, 685; 641 NW2d 219 (2002). “In general, even though a nuisance may exist, not all actors are liable for the damages stemming from the condition.” Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App 186, 191; 540 NW2d 297 (1995). “A defendant held liable for the nuisance must have possession or control of the land.” Wagner v Regency Inn Corp, 186 Mich App 158, 163; 463 NW2d 450 (1990); see also Stevens v Drekich, 178 Mich App 273, 278; 443 NW2d 401 (1989) (“It requires that the defendant liable for the nuisance have possession or control of the land.”); 19 Mich Civ Jur, Nuisances, § 1, p 63 (“Liability for nuisance... requires that the defendant hable for the nuisance have possession or control of the land on which the condition exists or the activity takes place.”). As the Court of Appeals explained in Merritt v Nickelson, 80 Mich App 663, 666-667; 264 NW2d 89 (1978): To argue, as plaintiff does, that a co-owner’s right to possession of the premises is sufficient to hold that co-owner liable for all injuries on the premises is to be simplistic. The issue of control is preeminent. [The] rights and liabilities arising out of the condition of land, and activities conducted upon it, have been concerned chiefly with the possession of the land * * * for the obvious reason that the man in possession is in a position of control, and normally best able to prevent any harm to others. Prosser, Law of Torts (3d ed), § 57, at 358. (Footnote omitted.) “Possession” differs from the “right to possession” and “ownership” because of the concept of control. Possession is the detention and control of anything which may be the subject of property, for one’s use and enjoyment. Blacks Law Dictionary (4th ed), at 1325. The mere “right to possession” does not necessarily entail the control inherent in the nature of “possession.” It has been recognized in this state that control and possession are the determinative factors in the imposition of liability. It is a general proposition that liability for an injury due to defective premises ordinarily depends upon power to prevent the injury and therefore rests primarily upon him who has control and possession. [Citations omitted.] This Court subsequently affirmed that decision, holding that a co-owner of land cannot be held liable where he or she has not “exercise[d] her right to possession and control over the property” because “[w]hen one co-owner of land cedes possession and control of the premises to her co-owners, the law is satisfied to look to those co-owners actually in control for liability for injuries to third persons.” Merritt v Nickelson, 407 Mich 544, 554; 287 NW2d 178 (1980). Ownership alone is not dispositive. Possession and control are certainly incidents of title ownership, but these possessory rights can be “loaned” to another, thereby conferring the duty to make the premises safe while simultaneously absolving oneself of responsibility. [Id. at 552-553.] See also Musser v Loon Lake Shores Ass’n, 384 Mich 616, 622; 186 NW2d 563 (1971) (“It is a general principle of tort law that a person is liable only as he participates in an activity giving rise to a tort. Mere co-ownership of land standing alone will not subject a person to liability for torts committed in the land by the other co-owners.”). In the landlord/tenant context (which bears considerable resemblance to the context we have here), this Court has made it clear that generally a landlord is not liable for a nuisance created by the tenant. As Justice COOLEY explained in Samuelson v Cleveland Iron Mining Co, 49 Mich 164, 171; 13 NW 499 (1882): It is not pretended that the mere ownership of real estate upon which there are dangers will render the owner liable to those who may receive injury in consequence. Some personal fault must be involved, or neglect of duty, before there can be a personal liability. As between landlord and tenant the party presumptively responsible for a nuisance upon the leased premises is the tenant. But this might be otherwise if the lease itself contemplated the continuance of the nuisance, for in that case the personal fault of the landlord would be plain[.] [Citations omitted.] The question at issue in Samuelson was “whether a personal duty to guard against danger to the [iron] miners was still incumbent upon the defendant as owner of the mine, and was continuous while the mine was being worked by the contractors.” Id. at 173. This Court held: Mere ownership of the mine can certainly impose no such duty. The owner may rent a mine, resigning all charge and control over it, and at the same time put off all responsibility for what may occur in it afterwards. If he transfers no nuisance with it, and provides for nothing by his lease which will expose others to danger, he will from that time have no more concern with the consequences to others than any third person. If instead of leasing he puts contractors in possession the result must be the same if there is nothing in the contract which is calculated to bring about danger. But if, on the other hand, he retains charge and control, and gives workmen a right to understand that he is caring for their safety and that they may rely upon him to guard against negligent conduct in the contractors and others, his moral accountability for their safety is as broad as it would be if he were working the mine in person; and his legal accountability ought to be commensurate with it. But we do not find that in this case there was any such retention of charge and control, or that the arrangement between the contractors and the mining company gave to workmen any assurance that the company would protect them against the negligence of the contractors and their servants. [Id. at 173-174.] The general rule is that if “the acts of the tenant unauthorized by the landlord create a nuisance ‘after he has entered into occupation as a tenant, the landlord is not liable.’ ” Rosen v Mann, 219 Mich 687, 690-691; 189 NW 916 (1922) (citation omitted). “[I]n the absence of a contract duty on the part of the owner or landlord, the tenant, as between himself and the landlord, is bound to keep the leased premises in repair [and] the owner is not liable for damages to third persons for injuries arising from the neglect of the tenant to repair.” Maclam v Hallam, 165 Mich 686, 693; 131 NW 81 (1911); see also Harris v Cohen, 50 Mich 324, 325; 15 NW 493 (1883) (“The case was not allowed to go to the jury, on the ground that the defendant was not personally in possession, and that she was not liable, as the case stood, for the neglect of her tenant.”); Fisher v Thirkell, 21 Mich 1, 12-13 (1870) (“[T]he owners, being out of possession and not bound to repair, are not liable in this action for injuries received in consequence of the neglect to repair.”); Merritt, 80 Mich App at 667 (“[0]wners of land ... do not share liability when injury or negligence is attributable to the independent act of a single tenant who has exclusive control of the premises.”). “The underlying reason for the general rule ... is that after leasing and surrendering the premises to the tenant the landlord loses all control over them.” Rosen, 219 Mich at 691. “It is a general proposition that liability for an injury due to defective premises ordinarily depends upon power to prevent the injury and therefore rests primarily upon him who has control and possession.” Dombrowski v Gorecki, 291 Mich 678, 681; 289 NW 293 (1939). A tenant or occupant of premises having the entire control thereof is, so far as third persons are concerned, the owner. He is, therefore, as already stated, usually deemed to be prima facie liable for all injuries to third persons occasioned by the condition of the demised premises. [Rosen, 219 Mich at 692 (quotation marks and citations omitted).] Although this Court has consistently held that control is required in order to hold a defendant liable for a nuisance, in dicta the Court of Appeals has articulated this rule in such a way that suggests that ownership alone may be sufficient to impose liability even if someone other than the owner exercises control over the property. To wit, in Cloverleaf, 213 Mich App at 191, the Court of Appeals stated: A defendant is liable for a nuisance where (1) the defendant created the nuisance, (2) the defendant owned or controlled the land from which the nuisance arose, or (3) the defendant employed another person to do work from which the defendant knew a nuisance would likely arise. [Emphasis added.] The Court held that because the defendant did not own or control the property, the defendant could not be held liable. Cloverleaf cited Gelman Sciences, Inc v Dow Chemical Co, 202 Mich App 250, 252; 508 NW2d 142 (1993), for its articulation of the rule. Gelman did articulate this same rule, but held that because the defendant did not own or control the property, the defendant could not be held liable. Gelman in turn cited Radloff v Michigan, 116 Mich App 745, 758; 323 NW2d 541 (1982), for its articulation of the rule. While Radloff did articulate this same rule, it also held that “[ojwnership alone is not dispositive.” Id. at 755, quoting Merritt, 407 Mich at 552. Radloff concluded that because “the defendants both owned and controlled the property,” they could be held liable. Radloff, 116 Mich App at 759 (emphasis added). Radloff also held that Merritt was distinguishable because the defendants in Merritt were “mere landowners.” Id. at 756. Radloff cited Stemen v Coffman, 92 Mich App 595, 597-598; 285 NW2d 305 (1979), for its articulation of the “owned or controlled” rule. Stemen did articulate this rule, but held that because the defendants did not own or control the property, they could not be held liable. In support of this proposition, Stemen, 92 Mich App at 598, cited 58 Am Jur 2d, Nuisances, § [95],[ ] p 616, which provides: To be liable for nuisance, it is not necessary for an individual to own the property on which the objectionable condition is maintained, but rather, liability for damages turns on whether the defendant controls the property, either through ownership or otherwise.[ ] A person is liable if he or she knowingly permits the creation or maintenance of a nuisance on premises of which he or she has control even though such person does not own the property or even though such person is not physically present, such as where he or she is an absentee owner. A party who has no control over the property at the time of the alleged nuisance cannot be held liable therefor. While this language indicates that an absentee owner may be held liable, it does not state that mere land ownership may give rise to liability. That is, even the treatise cited above and referred to by Stemen indicates that something more than mere ownership is required — the absentee landowner must have “knowingly permit [ted] the creation or maintenance of a nuisance on [the] premises.” Id. None of the Court of Appeals cases cited above involved a situation in which the Court of Appeals imposed liability on a defendant on the basis of his or her mere land ownership. Instead, each of these cases involved situations in which the Court of Appeals held that the defendants either could not be held liable because they did not own or control the property or could be held liable because they did both own and control the property. And even the treatise specifically relied on by the Court of Appeals for its “ownership or control” rule does not stand for the proposition that ownership alone can give rise to liability where someone other than the owner is exercising control over the property. In the instant case, defendants merely own the property. It is undisputed that they have never possessed or exercised any control over the property. They have not even visited the property in more than a decade. They have no contact with the person who is in actual possession of the property and who is exercising control over that property. Defendants also had nothing to do with the horse that caused the accident in this case or with any other horse on the property. They did not own, possess, or control the horse. Indeed, they did not even know that Daniel Truman owned the horse. Although Marilyn Truman testified that she received two or three telephone calls from people looking for Daniel Truman because his animals were loose, she testified that she received these calls no later than 2000 — at least 10 years before the accident. Not only did none of the neighbors testify that they had ever called defendants about the escaped animals, but most of these neighbors, as well as the animal-control officer, actually testified that they never called defendants about such animals. Thus, there is no evidence of any kind that defendants knew or had reason to know that Daniel Truman’s animals were escaping the property when the accident happened in 2010. Because defendants did not control or possess the property or the horse, there is no basis on which to impose tort liability on defendants for a public nuisance. As explained by the trial court: The facts in this case are that the property in question was under the possession and control of Daniel Truman. That while Robert and Marilyn Truman held fee title to that property, it was something more in the nature of a security interest than active ownership. There’s no evidence to show that they actively managed, supervised, maintained, possessed or controlled the subject property. To the contrary, all the evidence shows that possession and control of the premises was vested in Daniel Truman. The Plaintiff points to language in a mortgage on the subject premises that’s clearly regulating the relations as between the bank and Robert and Marilyn Truman. It doesn’t constitute any sort of admission by them that they were actually controlling the property as opposed to having the right to control it in relation to the bank, that right being something that they had passed along to Daniel Truman from the get go in this transaction it appears. Robert and Marilyn were not in possession of the subject property. They didn’t control the subject property. Therefore, there’s no nuisance liability that can be attached to them with respect to this land, and the Court likewise must grant summary disposition .. . ,[ ] “[T]he party presumptively responsible for a nuisance upon the leased premises is the tenant,” Samuelson, 49 Mich at 171, for the obvious reason that “the man in possession is in a position of control, and normally best able to prevent any harm to others,” Merritt, 407 Mich at 552 (quotation marks and citation omitted). In this case, Daniel Truman was the “man in possession” of the property, and thus he was the one “best able to prevent any harm to others.” Given that it appears that defendants “resign[ed] all charge and control over [the property],” Samuelson, 49 Mich at 173, to Daniel Truman, Daniel Truman, rather than defendants, is the one exclusively responsible for the alleged public nuisance he created on the property. IV CONCLUSION For these reasons, we hold that title owners of real property cannot be held liable for a public nuisance that arose from that property, when someone other than the title owners is in actual possession of the property, is exercising control over the property, and is the one who created the alleged nuisance. Therefore, we reverse that portion of the Court of Appeals’ judgment that held to the contrary and reinstate the trial court’s order granting defendants’ motion for summary disposition. Young, C.J., and Kelly, Zahra, and McCormack, JJ., concurred with MARKMAN, J. The horse had been stored in a three-walled enclosure with a heavy gate, but the gate had been secured with baling twine that had failed. Robert and Daniel Truman’s mother sold the property to Daniel Truman and his now ex-wife, Linda Truman. When Daniel and Linda divorced in 1989, the divorce decree required Daniel to pay off his wife’s interest in the property. In order to have the cash to do so, Daniel borrowed money from his brother, Robert. Presumably because of the financial assistance that defendants provided Daniel, Linda signed the deed to the property over to defendants. Daniel repaid about $6,000 of the $15,000 that he owes defendants, but has not made a payment to defendants in several years, although Daniel does pay the property taxes. Defendants had a land contract drawn up but never obtained Daniel’s signature on it. Defendants and Daniel do not speak with one another and have not done so for the past 10 years. Defendants have also not been on the property in the past 10 years. “Elope” in this legal context means “to flee; escape.” Random House Webster’s College Dictionary (1992). It is unknown whether all of these elopements involved animals from the property at issue here. Plaintiff also claimed negligence and violations of the Equine Activity Liability Act, hut the trial court subsequently dismissed those claims and the Court of Appeals affirmed. Plaintiff filed an application for leave to appeal which this Court denied, and thus those claims are not before this Court. Because defendants failed to raise this issue at the trial court, this issue is not properly before this Court. See Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008) (“[A] litigant must preserve an issue for appellate review by raising it in the trial court... . [Generally ‘a failure to timely raise an issue waives review of that issue on appeal.’ ”) (citation omitted). Although Merritt and Musser involved premises liability causes of action, the general principles of tort liability articulated in those opinions are just as relevant in the context of a nuisance cause of action. Tort law generally does not favor shifting liability from a party directly responsible for giving rise to the tort to a mere title holder who lacked actual possession and control of the land. Stemen actually cited § 49, but this language can only be found in § 95, pp 642-643. See also Beard v Michigan, 106 Mich App 121, 126; 308 NW2d 185 (1981), citing Stemen, 92 Mich App at 598 (“We have previously held that liability for damage caused by a nuisance turns upon when the defendant was in control, either through ownership or otherwise.”); Detroit Bd of Ed v Celotex Corp, 196 Mich App 694, 709-710; 493 NW2d 513 (1992), citing Radloff, 116 Mich App at 758 (“[Nluisance liability may be imposed where ... the defendant owned or controlled the property from which the nuisance arose ... .”); Mitchell v Dep’t of Corrections, 113 Mich App 739, 742; 318 NW2d 507 (1982), citing Stemen, 92 Mich App at 598 (“Unless the defendant has created the nuisance, owned or controlled the property from which it arose or employed another to do work knowing it would likely create a nuisance, liability may not be imposed under a nuisance theory.”); Coburn v Pub Serv Comm, 104 Mich App 322, 327; 304 NW2d 570 (1981), quoting Stemen, 92 Mich App at 598 (“We have found no authority imposing liability for damage caused by a nuisance where the defendant has not either created the nuisance, owned or controlled the property from which the nuisance arose, or employed another to do work which he knows is likely to create a nuisance.”). As recognized by the partial dissent, “this Court has never explicitly held that knowledge is a required element of a nuisance claim,” post at 23, and we do not hold so in the instant case. See note 11 of this opinion. Such a holding would require us to modify our existing common law, and “[w]hile this Court unquestionably has the authority to modify the common law, such modifications should be made with the utmost caution because it is difficult for the judiciary to assess the competing interests that may be at stake and the societal trade-offs relevant to one modification of the common law versus another in relation to the existing rule.” Woodman v Kera LLC, 486 Mich 228, 231; 785 NW2d 1 (2010). Contrary to the partial dissent’s contention, just because the parties and the Court assumed, without deciding, that knowledge is an element of a nuisance claim in Wendt v Village of Richmond, 164 Mich 173; 129 NW 38 (1910), does not mean that if this Court today expressly held that knowledge is an element of a nuisance claim this would not constitute a modification of our existing common law. Moreover, given that the parties themselves have not even asked that the common law he modified by adding the element of knowledge (indeed, defendants have actually argued that “knowledge of a nuisance is irrelevant for purposes of liability”), we are not prepared to “assess the competing interests that may be at stake and the societal trade-offs relevant” to such a modification of the common law. Woodman, 486 Mich at 231. We recognize that plaintiff and defen dants (at least until they filed their application for leave to appeal with this Court) assumed that knowledge is an element of a nuisance claim. However, this does not change the fact that neither party has argued that we should modify the common law to add a knowledge requirement or has “assess[ed] the competing interests that may be at stake and the societal trade-offs relevant to [such a] modification of the common law.” Woodman, 486 Mich at 231. One would think that if it were so important for this Court to add knowledge as an element, defendants, who have the most to gain by the addition of this element, would have argued in support of this addition. But, instead, defendants argued that “knowledge of a nuisance is irrelevant for purposes of liability.” In light of these circumstances, we exercise “the utmost caution” in recognition of the fact that we are in no position to “assess the competing interests that may be at stake and the societal trade-offs relevant to [the partial dissent’s proposed] modification of the common law.” Id. We speak of knowledge not because it is an element of a nuisance action in this state, because it is not, see note 10 of this opinion, but only because defendants’ lack of knowledge is relevant evidence in this case of defendants’ lack of control or possession of the property, which is an element of a nuisance action. See Wagner, 186 Mich App at 163 (“A defendant held liable for the nuisance must have possession or control of the land.”). That is, the fact that defendants did not even know that Daniel Truman owned a horse, or that animals were still getting loose from the farm operated by Daniel Truman, suggests strongly that they were also not in possession of, or exercising control, over the farm because had they been, they likely would have known about the horse and they likely would have known that animals were still escaping from the farm. See MRE 401 (“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”). It should not be viewed as remarkable that a lack of knowledge of some occurrence may be relevant evidence of a lack of control with regard to the conditions that underlie that occurrence. This, of course, is not to say that evidence of knowledge or the lack thereof is dispositive evidence of control or the lack thereof. Unlike the partial dissent, we do not believe that there is a genuine issue of material fact in this case concerning the issue of control. Although the facts cited by the partial dissent — that defendants are the title owners of the property, that they loaned money to Daniel Truman so that he could buy out his ex-wife’s interest in the property, that they maintained insurance on the property, and that they took out a mortgage on the property that included a duty to maintain the property — suggest strongly that defendants may have had a right to exercise control of the property, they do not suggest that defendants actually exercised control over the property, which remains the dispositive issue. See Merritt, 407 Mich at 554 (stating that a co-owner of land cannot he held hable when he or she has not “exercise[d] her right to possession and control over the property” because “when one co-owner of land cedes possession and control of the premises to her co-owners, the law is satisfied to look to those co-owners actually in control for liability for injuries to third persons”). Because in this case someone other than defendant title owners was in possession of and exercising control over the property, it is unnecessary to address whether an absentee landowner could be held liable for a nuisance where no one is in possession of or exercising control over property. We simply hold that when someone other than the landowner is in possession of property, is exercising control over the property, and is the one who created the nuisance, that person, rather than the landowner, is the one liable for the public nuisance.
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Markman, J. At issue is whether MCL 769.1k(l)(b)(ii) provides courts with the independent authority to impose costs upon criminal defendants. We hold that it does not. Instead, we hold that MCL 769.1k(l)(b)(ii) provides courts with the authority to impose only those costs that the Legislature has separately authorized by statute. Therefore, the circuit court erred when it relied on MCL 769.1k(l)(b)(ii) as independent authority to impose $1,000 in “court costs,” and the Court of Appeals erred as well by affirming the imposition of such costs. Accordingly, we reverse the decision of the Court of Appeals, vacate the portion of the circuit court’s order imposing $1,000 in court costs, and remand for further proceedings not inconsistent with this opinion. I. FACTS AND HISTORY In March of 2011, defendant acquired the prescription drug Norco by presenting a forged prescription to a pharmacy. Defendant pleaded guilty in the Allegan County Circuit Court to obtaining a controlled sub stance by fraud in violation of MCL 333.7407(l)(c) and was sentenced to 12 to 48 months’ imprisonment. In addition, defendant was ordered to pay $130 for the crime victim’s rights assessment, $68 in minimum state costs, and $1,000 in unspecified “court costs.” Defendant filed a motion to correct what he viewed as an invalid sentence, arguing that the circuit court should reduce or vacate the amount of court costs imposed to reflect the amount of actual costs incurred by the circuit court in connection with defendant’s case. The circuit court denied this motion and held that the court costs were permissible under the “general taxing authority of MCL 769.1k and MCL 769.34(6).” In light of People v Sanders, 296 Mich App 710; 825 NW2d 87 (2012), the Court of Appeals then remanded to the circuit court to “factually establish the reasonable costs figure for felony cases in Allegan County Circuit Court.” People v Cunningham, unpublished order of the Court of Appeals, issued October 2, 2012 (Docket No. 309277). At the ensuing hearing, the Circuit Court Administrator testified that the average cost per criminal case in the circuit court was $1,238.48.* * Accordingly, the circuit court found that a reasonable relationship existed between the court costs imposed and the actual court costs incurred in connection with defendant’s conviction. Relying on Sanders, the Court of Appeals affirmed the circuit court’s order. People v Cunningham (After Remand), 301 Mich App 218; 836 NW2d 232 (2013). One judge dissented on the grounds that courts may not include the general costs of maintaining the judicial branch of government in calculating such court costs. Id. at 222-225 (SHAPIRO, J., dissenting). On November 20, 2013, this Court granted defendant’s application for leave to appeal. People v Cunningham, 495 Mich 897 (2013). II. STANDARD OF REVIEW Questions of statutory interpretation are questions of law that are reviewed de novo. Martin v Beldean, 469 Mich 541, 546; 677 NW2d 312 (2004). III. ANALYSIS “The right of the court to impose costs in a criminal case is statutory.” People v Wallace, 245 Mich 310, 313; 222 NW 698 (1929). Thus, courts may impose costs in criminal cases only where such costs are authorized by statute. Id. In a variety of circumstances, the Legisla ture has chosen to provide courts with the authority to impose costs. For instance, with regard to certain offenses, courts may require criminal defendants to pay the “costs of prosecution.”* *** With regard to other offenses, courts may require criminal defendants to “reimburse the state or a local unit of government for expenses incurred in relation to that incident including but not limited to expenses for an emergency response and expenses for prosecuting the person.” MCL 769.1f(l). Re gardless of the offense committed, when a criminal defendant is placed on probation, courts may require the probationer to pay “expenses specifically incurred in prosecuting the defendant or providing legal assistance to the defendant and supervision of the probationer.” MCL 771.3(5). Additionally, when a criminal defendant receives a conditional sentence, courts may “order the person to pay a fine, with or without the costs of prosecution.” MCL 769.3(1). In 1994, when the Legislature laid the foundation for the criminal sentencing guidelines, it amended the Code of Criminal Procedure to add MCL 769.34, which provides in pertinent part that when a criminal defendant is sentenced for an offense subject to the guidelines, “[a]s part of the sentence, the court may order the defendant to pay any combination of a fine, costs, or applicable assessments,” and “[t]he court shall order payment of restitution as provided by law.” MCL 769.34(6), as added by 1994 PA 445. In 2005, the Legislature further amended the Code of Criminal Procedure to add the statute immediately at issue, MCL 769.1k, which provides: (1) If a defendant enters a plea of guilty or nolo contendere or if the court determines after a hearing or trial that the defendant is guilty, both of the following apply at the time of the sentencing or at the time entry of judgment of guilt is deferred pursuant to statute or sentencing is delayed pursuant to statute: (a) The court shall impose the minimum state costs as set forth in section lj of this chapter. (b) The court may impose any or all of the following: (1) Any fine. (ii) Any cost in addition to the minimum state cost set forth in subdivision (a). (Hi) The expenses of providing legal assistance to the defendant. (iv) Any assessment authorized by law. (o) Reimbursement under section If of this chapter. (2) In addition to any fine, cost, or assessment imposed under subsection (1), the court may order the defendant to pay any additional costs incurred in compelling the defendant’s appearance. (3) Subsections (1) and (2) apply even if the defendant is placed on probation, probation is revoked, or the defendant is discharged from probation. (4) The court may require the defendant to pay any fine, cost, or assessment ordered to be paid under this section by wage assignment. (5) The court may provide for the amounts imposed under this section to be collected at any time. (6) Except as otherwise provided by law, the court may apply payments received on behalf of a defendant that exceed the total of any fine, cost, fee, or other assessment imposed in the case to any fine, cost, fee, or assessment that the same defendant owes in any other case. [2005 PA 316, as amended by 2006 PA 655 (emphasis added.)] Thus, under MCL 769.1k(l), when a criminal defendant pleads guilty or nolo contendere, or is otherwise found guilty, courts may impose certain financial obligations at the time of sentencing, or earlier if sentencing is delayed or entry of judgment of guilt is deferred. Courts may impose these obligations even if the defendant is placed on probation, probation is revoked, or the defendant is discharged from probation. MCL 769.1k(3). Moreover, the amounts imposed under MCL 769.1k may be collected at any time. MCL 769.1k(5). In this case, the statute under which defendant was convicted, MCL 333.7407, does not provide courts with the authority to impose costs.* 123*** Nonetheless, the prosecutor argues that the $1,000 in court costs imposed by the circuit court were proper under MCL 769.1k(l)(b)(ii). In the prosecutor’s view, MCL 769.1k(l)(b)(ii) provides courts with the independent authority to impose “any cost,” to wit, any kind of cost that a court might incur. In defendant’s view, however, MCL 769.1k(l)(b)(ii) does not provide courts with the independent authority to impose “any cost,” but merely allows courts to impose those costs that the Legislature has separately authorized by statute. Thus, the pertinent issue in this case concerns the extent to which MCL 769.1k(l)(b)(ii) authorizes courts to impose costs. In giving meaning to MCL 769.1k(l)(b)(ii), we examine the provision within the overall context of the statute “so as to produce, if possible, a harmonious and consistent enactment as a whole.” Grand Rapids v Crocker, 219 Mich 178, 182-183; 189 NW 221 (1922). This Court “must give effect to every word, phrase, and clause and avoid an interpretation that would render any part of the statute surplusage or nugatory.” State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002). We also consider the statute’s “ ‘placement and purpose in the statutory scheme,’ ” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999) (citation omitted), and in interpreting related statutes, those in pari materia, we construe the statutes together “so as to give the fullest effect to each provision,” Glover v Parole Bd, 460 Mich 511, 527; 596 NW2d 598 (1999), citing Parks v DAIIE, 426 Mich 191, 199; 393 NW2d 833 (1986). Although MCL 769.1k(l)(b)(ii) allows courts to impose “any cost in addition to the minimum state cost,” this provision cannot be read in isolation, but instead must be read reasonably and in context. Sun Valley Foods Co v Ward, 460 Mich 230, 236-237; 596 NW2d 119 (1999). When read “reasonably and in context,” it is evident to us that MCL 769.1k(l)(b)(ii) does not provide courts with the independent authority to impose “any cost.” Rather, MCL 769.1k(l)(b)(ii) provides courts with the authority to impose only those costs that the Legislature has separately authorized by statute. First, while MCL 769.1k allows courts to impose “any cost in addition to the minimum state cost,” it also authorizes courts to impose other costs, including “the expense of providing legal assistance to the defendant,” MCL 769.1k(l)(b)(iii), and “any additional costs incurred in compelling the defendant’s appearance,” MCL 769.1k(2). If, as the prosecutor argues, MCL 769.1k(l)(b)(ii) provides courts with the independent authority to impose “any cost,” there would, of course, have been no need for the Legislature to have particularly specified that courts may require individuals to pay for the latter costs. In other words, if MCL 769.1k(l)(b)(ii) provides courts with the independent authority to impose “any cost,” the Legislature could simply have left it at that and conferred upon trial courts, as they saw fit to exercise it, broad discretion to require criminal defendants to pay costs. However, the fact that the Legislature proceeded beyond its reference to “any cost” to specify with particularity that courts may require criminal defendants to pay certain other costs suggests strongly that the Legislature did not intend MCL 769.1k(l)(b)(ii) to provide courts with the independent authority to impose “any cost.” Moreover, in addition to allowing courts to impose “any cost in addition to the minimum state cost,” MCL 769.1k also allows courts to order “reimbursement under [MCL 769.1f|.” MCL 769.1k(l)(b)(u). Under MCL 769.If, courts may require defendants convicted of certain offenses “to reimburse the state or a local unit of government for specific expenses incurred in relation to the incident including but not limited to expenses for an emergency response and expenses for prosecuting the person.” MCL 769.1f(l) and (9). As detailed in MCL 769. If, the expenses for which reimbursement may be ordered include “the salaries, wages, or other compensation, including, but not limited to, overtime pay of prosecution personnel for time spent investigating and prosecuting the crime or crimes resulting in conviction.” MCL 769.1f(2)(d). If MCL 769.1k(l)(b)(ii) provided courts with the independent authority to impose “any cost,” there would have been no need for the Legislature to specify in MCL 769.1k(l)(b)(u) that a court may order “reimbursement under MCL 769.If,” and thereby impose particular costs. That the Legislature included a specific provision authorizing reim bursement under MCL 769.If further suggests that it did not intend MCL 769.1k(l)(b)(ii) to provide courts with the independent authority to impose “any cost.” Second, at the time the Legislature enacted MCL 769.1k, numerous statutes provided courts with the authority to impose specific costs for certain offenses. See, e.g., footnote 5 of this opinion. Interpreting MCL 769.1k(l)(b)(ii) as providing courts with the independent authority to impose “any cost” would essentially render the cost provisions within those statutes nugatory, as courts could nonetheless impose “any cost,” regardless of whether the Legislature had particularly provided courts with the authority to impose specific costs for the relevant offense. In determining the proper meaning of MCL 769.1k(l)(b)(ii), it is our duty to harmonize and reconcile related statutes, and we decline to adopt an interpretation of MCL 769. lk( 1) (b) (¿¿) that would leave the cost provisions of other statutes without any practical or effective meaning. See Koenig v South Haven, 460 Mich 667, 677, 597 NW2d 99 (1999) (“[A] court’s duty is to give meaning to all sections of a statute and to avoid, if at all possible, nullifying one by an overly broad interpretation of another.”). Moreover, after the Legislature enacted MCL 769.1k, it has continued to enact provisions providing courts with the authority to impose particular costs for certain offenses. Because we presume that the Legislature acts “with a full knowledge of existing statutes,” In re Reynolds’ Estate, 274 Mich 354, 362; 264 NW 399 (1936), we presume that the Legislature enacted these provisions with full knowledge of MCL 769.1k. The Legislature’s decision to continue to enact provisions providing courts with authority to impose specific costs for certain offenses again suggests strongly that it did not intend MCL 769.1k(l)(b)(ii) to provide courts with the independent authority to impose “any cost.” We again operate on the presumption that the Legislature did not intend to do a useless thing. Klopfenstein v Rohlfing, 356 Mich 197, 202; 96 NW2d 782 (1959) (“[I]t will not be presumed that the legislature intended to do a useless thing. . . .”). Third, if this Court were to hold that MCL 769.1k(l)(b)(ii) provides courts with the independent authority to impose “any cost,” a logical outgrowth of that holding would be that MCL 769.1k(l)(b)(i) provides courts with the independent authority to impose “any fine.” However, at the time the Legislature enacted MCL 769.1k, numerous statutes provided that certain offenses are punishable by a fine up to a specific amount, with such amounts widely differing. Interpreting MCL 769.1k(l)(b)(i) as providing courts with the independent authority to impose “any fine” would also nullify the provisions within those statutes that expressly fix the amount of fines that courts may impose for certain offenses, as courts could impose “any fine,” presumably in any amount, and presumably without reference to the limitations that the Legislature has set forth in other statutes. Once again, we do not believe that by enacting MCL 769.1k(l)(b)(i) the Legislature intended to leave the fine provisions of numerous statutes without practical meaning or effect. Koenig, 460 Mich at 677. Thus, our belief that MCL 769.1k(l)(b)(i) does not provide courts with the independent authority to impose “any fine” suggests further that MCL 769.1k(l)(b)(ii) does not provide courts with the independent authority to impose “any cost.” In light of the foregoing analysis, we conclude that MCL 769.1k (l)(b)(ii) does not provide courts with the independent authority to impose “any cost.” Instead, we hold that MCL 769.1k(l)(b)(ii) provides courts with the authority to impose only those costs that the Legislature has separately authorized by statute.* In other words, we find that MCL 769.1k(l)(b)(ii) seeks comprehensively to incorporate by reference the full realm of statutory costs available to Michigan courts in sentencing defendants, so that the Legislature need not compendiously list each such cost in MCL 769.1k. Our understanding of MCL 769.1k(l)(b)(ii), we believe, accords respect to its language, to the language of other cost provisions within MCL 769.1k, and to the language of other statutes enacted by the Legislature conferring upon courts the authority to impose specific costs for certain offenses. In affirming the circuit court’s order imposing $1,000 in court costs, the Court of Appeals relied on People v Sanders, 296 Mich App 710; 825 NW2d 87 (2012), and People v Sanders (After Remand), 298 Mich App 105; 825 NW2d 376 (2012). However, in Sanders, the Court of Appeals assumed that MCL 769.1k(l)(b)(ii) “authorizes the imposition of costs without any explicit limitation ____” 296 Mich App at 712. As set forth in this opinion, we do not believe that the Legislature intended MCL 769.1k(l)(b)(ii) to provide courts with the independent authority to impose “any cost.” Accordingly, we overrule Sanders to the extent that it is inconsistent with this opinion. IV CONCLUSION The circuit court erred when it relied on MCL 769.1k(l)(b)(ii) as independent authority to impose $1,000 in court costs, and the Court of Appeals erred as well by affirming the circuit court’s imposition of such costs. Accordingly, we reverse the decision of the Court of Appeals, vacate the portion of the circuit court’s order imposing $1,000 in court costs, and remand for further proceedings not inconsistent with this opinion. Young, C.J., and Cavanagh, Kelly, Zahra, McCormack, and VIVIANO, JJ., concurred with MARKMAN, J. As more fully explained in this opinion, in imposing $1000 in what it deemed to he “court costs,” the circuit court relied on MCL 769.1k(l)(b)(zz), which speaks generally of “any cost in addition to the minimum state cost.” Thus, while the circuit court labeled the $1000 in costs that it imposed as “court costs,” this case more broadly concerns the meaning of the phrase “any cost” as it appears in MCL 769.1k(l)(b)(iz). In Sanders, the Court of Appeals held that “a trial court may impose a generally reasonable amount of court costs under MCL 769.1k(l)(b)(zz) without the necessity of separately calculating the costs involved in the particular case . ...” Sanders, 296 Mich App at 715 (emphasis added). However, finding that there must be a reasonable relationship between the costs imposed and the actual costs incurred, the Court of Appeals remanded to the circuit court “to factually establish the reasonable costs figure for felony cases in the Berrien Circuit Court.” Id. at 716. In People v Sanders (After Remand), 298 Mich App 105, 108; 825 NW2d 376 (2012), the Court of Appeals found that the trial court had established “a sufficient factual basis to conclude that $1000 in court costs under MCL 769.1k(l)(b)(ii) is a reasonable amount in a felony case conducted in the Berrien Circuit Court.” Of this figure, $462.84 was attributed to the circuit court’s operating expenses, $563.15 was attributed to attorney costs, and $212.48 was attributed to clerk and deputy costs. The authority of sentencing courts is “confined to the limits permitted by the statute under which it acts.” People v Tims, 127 Mich App 564, 565-566; 339 NW2d 488 (1983), citing In re Callahan, 348 Mich 77, 80; 81 NW2d 669 (1957). In this regard, in sentencing defendants, “the court performs a ministerial function with discretion confined to the limits permitted by .. . statute.” Callahan, 348 Mich at 80, citing In re Duff, 141 Mich 623; 105 NW 138 (1905); In re Evans, 173 Mich 25; 138 NW 276 (1912). See, e.g., MCL 750.49(5) (providing that courts may require individuals convicted of offenses related to fighting, baiting, or shooting an animal to pay “the costs of prosecution”); MCL 750.50(4)(b) (providing that courts may require individuals convicted of offenses related to animal cruelty to pay “the costs of prosecution”); MCL 750.159j(2) (providing that courts may require individuals convicted of offenses related to racketeering activity to pay “court costs” or “the costs of the investigation and prosecution that are reasonably incurred”); MCL 752.845 (providing that individuals convicted of injuring or killing another person by firearm “shall, upon conviction thereof, he fined not more than $100.00 and costs of prosecution”); MCL 324.80178(2) (providing that courts may require individuals convicted of operating a vessel on the waters of this state while under the influence of intoxicating liquor or a controlled substance, MCL 324.80176(3), “to pay the costs of the prosecution” “pursuant to the code of criminal procedure, 1927 PA 175, MCL 760.1 to MCL 777.69”). See MCL 769.1f(l)(a) through (i) (listing the specific offenses). As detailed in the statute, the offenses for which reimbursement may be ordered include various offenses related to operating some type of motor vehicle while under the influence of intoxicating liquor or a controlled substance, committing a moving violation causing death, false reporting of a crime or threat, and violating a personal protection order. Several statutes also provide that courts may require individuals “to reimburse this state or a local unit of government of this state for expenses incurred in relation to the violation in the same manner that expenses may be ordered to be reimbursed under section If of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.1f.” See MCL 750.145d (using the Internet or a computer in a prohibited manner); MCL 750.411s (posting a message through an electronic medium without consent); MCL 750.462j (providing or obtaining the labor or services of another by force, fraud, or coercion); MCL 750.543x (violating the Michigan Anti-Terrorism Act); MCL 752.797 (accessing a computer with an intent to defraud); MCL 752.1084 (organized retail crime). MCL 333.7407 provides, in relevant part: (1) A person shall not knowingly or intentionally: (c) Acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge. (2) A person shall not refuse or knowingly fail to make, keep, or furnish any record, notification, order form, statement, invoice, or other information required under this article. (3) A person who violates this section is guilty of a felony, punishable by imprisonment for not more than 4 years, or a fine of not more than $30,000.00, or both. Thus, while MCL 333.7407 contemplates a sentence that may include imprisonment and/or a fine, it does not anywhere provide courts with the authority to impose costs. The purpose of the Code of Criminal Procedure is to “codify the laws relating to criminal procedure,” Title, MCL 760.1 et seq., and we find it proper to read MCL 769.1k together with the substantive statutes that the Legislature has enacted that define crimes and prescribe fines and costs. See People v Smith, 423 Mich 427, 442; 378 NW2d 384 (1985) (holding that the Penal Code and the Code of Criminal Procedure “relate generally to the same thing and must therefore be read in pari materia ....”). For example, in 2008 and 2012, the Legislature expanded the offenses for which reimbursement may be ordered pursuant to MCL 769. If. See 2008 PA 466; 2012 PA 331. In addition, in 2013, the Legislature authorized courts to order an individual convicted of soliciting a personal injury victim, MCL 750.410b, “to pay the costs of prosecution as provided in the code of criminal procedure, 1927 PA 175, MCL 760.1 to MCL 777.69.” See 2013 PA 219. In addition, as acknowledged by both parties, interpreting MCL 769.1k(l)(b)(i) as providing courts with the independent authority to impose “any fine” would also raise constitutional concerns, as “the ultimate authority to provide for penalties for criminal offenses is constitutionally vested in the Legislature.” People v Hegwood, 465 Mich 432, 436; 636 NW2d 127 (2001). As this Court has previously recognized, “ ‘the rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.’ ” Loose v Battle Creek, 309 Mich 1, 13; 14 NW2d 554 (1944) quoting Bowerman v Sheehan, 242 Mich 95; 219 NW 69 (1928). In the same vein, upon examining the existing statutory scheme, we also conclude that MCL 769.34(6), which provides that “as part of the sentence, the court may also order the defendant to pay any combination of a fine, costs, or applicable assessments,” does not provide courts with the independent authority to impose any fine or cost. Rather, as with MCL 769.1k, MCL 769.34(6) allows courts to impose only those costs or fines that the Legislature has separately authorized by statute. Given the Legislature’s use of the phrase “any cost,” we believe that the Legislature intended MCL 769.1k(l)(b)(ii) to incorporate by reference not only existing statutory provisions that provide courts with the authority to impose specific costs, but also future provisions that the Legislature might enact providing courts with the same authority, unless the Legislature states to the contrary. Moreover, to the extent that other decisions of the Court of Appeals are consistent with Sanders, and inconsistent with this opinion, we overrule those decisions as well. Our holding today defines the extent to which MCL 769.1k(l)(b)(ii) authorizes courts to impose costs. It does not define the scope of any particular statutory provision that is incorporated by reference into MCL 769.1k(l)(b)(ii). In granting defendant’s application for leave to appeal, we directed the parties to address: (1) whether People v Sanders, 296 Mich App 710; 825 NW2d 87 (2012), and People v Sanders (After Remand), 298 Mich App 105; 825 NW2d 376 (2012), correctly held that the Legislature’s intent in authorizing an assessment of “[a]ny cost” under MCL 769. lk( 1)(b)(ii) was to adopt a “reasonable flat fee” approach that does not require precision, and does not require separately calculating the costs involved in a particular case; (2) whether assessments of “court costs” are similar to, or interchangeable with, “costs of prosecution”; (3) whether the general principles set out in People v Wallace, 245 Mich 310; 222 NW 698 (1929), People v Teasdale, 335 Mich 1; 55 NW2d 149 (1952), and People v Dilworth, 291 Mich App 399; 804 NW2d 788 (2011), which dealt with statutory costs of prosecution and probation costs, have any applicability to an assessment pursuant to MCL 769.1k(l)(b)(ii); and (4) whether the Court of Appeals in this case properly applied Sanders to affirm the assessment of $1,000 in court costs on the basis that it was reasonably related to the $1,238.48 average actual cost per criminal case in Allegan Circuit Court, which included overhead costs and indirect expenses. [People v Cunningham, 495 Mich 897 (2013).] However, in light of our conclusion that MCL 769.1k(l)(b)(¿¿) does not provide courts with the independent authority to impose “any cost,” we need not address the second and third issues listed in the grant order.
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VIVIANO, J. In this case, we address whether Michigan’s shareholder-oppression statute, MCL 450.1489 (§ 489) of the Business Corporation Act (BCA), MCL 450.1101 et seq., provides a right to a jury trial or whether claims under § 489 are instead required to be heard by a court of equity. We hold that the plain language of § 489 does not afford a claimant a right to a jury trial and, instead, expresses a legislative intent to have shareholder-oppression claims heard by a court of equity. We further hold that there is no constitutional right to a jury trial for claims brought under § 489. Finally, we hold that violations of a shareholder agreement may constitute evidence of shareholder oppression pursuant to § 489(3). Because the trial court erred by submitting plaintiffs § 489 claim to the jury and allowing it to award an equitable remedy, the Court of Appeals erred by affirming the trial court’s judgment in favor of plaintiff. Therefore, we reverse the judgment of the Court of Appeals, reverse the judgment of the trial court in favor of plaintiff, and remand the case to the trial court to determine whether, on the present record, sitting as a court of equity, it can make the requisite findings of fact and conclusions of law under MCR 2.517(A) or whether a new trial is necessary. I. FACTS AND PROCEDURAL HISTORY Defendant Benjamin A. Taub founded Dataspace, Incorporated, in 1994. Dataspace is a technology consulting firm that focuses on constructing business intelligence and data warehouse systems. In 2002, Taub hired plaintiff, Rama Madugula, as vice president of sales and business development for Dataspace. Around this time, Dataspace also hired an individual named Andrew Flower. Taub was Dataspace’s sole shareholder until 2004, when Madugula and Flower became part owners, with Madugula purchasing 29% of the outstanding shares and Flower purchasing 20%. The three shareholders entered into a stockholders’ agreement on January 1, 2004. Pursuant to the agreement, Taub became president, secretary, and treasurer of Dataspace, while Madugula and Flower became vice presidents. The stockholders’ agreement established a five-member board of directors and allowed Taub to elect three directors and Madugula and Flower to each elect one director. The agreement also contained a supermajority provision, requiring approval by the holders of 70% of the outstanding corporate stock for material changes in the nature of the business, compensation for the shareholders, or methods of determining compensation for the shareholders.3 After becoming a shareholder, Madugula continued to work for Dataspace, drawing a salary of about $150,000 a year. In 2007, Flower exercised his right under the buy-sell agreement and voluntarily withdrew from Dataspace. Taub and Madugula purchased Flower’s shares, increasing Madugula’s interest to about 36% of the shares. Around this time, 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. Madugula claims that the JPAS software was a major departure and a material change from Dataspace’s prior software focus. Taub claims that it was simply an attempt to market the firm’s existing jail consulting products to other counties. At the time, Madugula did not object to the new focus. Thereafter, in August 2007, Taub terminated Madugula’s employment with Dataspace. Because of his termination, Madugula no longer received a salary from Dataspace, but he maintained his board position and his interest in the company. As a shareholder, he continued to receive dividends from the company. Madugula sued Taub and Dataspace, asserting the following six counts in the complaint: (1) shareholder oppression under § 489, (2) breach of the duty of good faith under MCL 450.1541a, (3) common-law fraud and misrepresentation, (4) exemplary damages, (5) an appointment of a receiver, and (6) an accounting of Dataspace. Madugula sought damages, the removal of Taub as a director of Dataspace, the appointment of a receiver to protect the value of his stock in Dataspace, an accounting of Dataspace, and all other relief that he was entitled to in equity or law. The circuit court granted summary disposition in favor of Taub and Dataspace, dismissing all counts against them except Madugula’s claim of shareholder oppression under § 489 against Taub. In February 2010, Taub filed a motion in limine arguing, among other things, that Madugula did not have a right to a jury trial for his § 489 claim. In support of the motion, Taub relied on the language of § 489 and an unpublished Court of Appeals opinion, Forsberg v Forsberg Flowers, Inc After a hearing, the circuit court rejected Taub’s reliance on Forsberg and denied his motion to have the § 489 claim heard in equity. The court also determined that Madugula could present evidence regarding breaches of the stockholders’ agreement to establish his claim of oppression. At trial, Madugula argued that Taub had terminated his employment with Dataspace and changed the material nature of the company without obtaining the re quired 70 percent supermajority vote. Taub argued that his actions were in the best interests of the company and that Madugula could not establish any oppressive conduct by Taub. The jury determined that Taub had engaged in willfully unfair and oppressive conduct that substantially interfered with Madugula’s interests as a shareholder. The jury awarded economic damages of $191,675 in favor of Madugula, and it further concluded that Taub had to buy Madugula’s stock in Dataspace for $1.2 million. The court entered a judgment in Madugula’s favor for these amounts, plus interest. Thereafter, Taub moved for judgment notwithstanding the verdict or, in the alternative, for a new trial or remittitur. In this motion, he argued that the case should have never gone before a jury because a § 489 claim is equitable in nature. The court denied Taub’s motions, again determining that it was not bound by Forsberg. Taub appealed to the Court of Appeals. In an unpublished opinion, the Court of Appeals affirmed. First, the Court of Appeals considered whether Madugula had established shareholder oppression. After reviewing § 489, the lead opinion concluded that Taub’s behavior was willfully unfair and oppressive because Madugula did not have an opportunity to vote on material changes to Dataspace or examine the corporate books. It also determined that there was further evidence of oppression because Taub had violated the supermajority provision in the stockholders’ agreement. Noting that termination of employment might give rise to oppression under § 489(3), the lead opinion concluded that the termination of Madugula’s services was evidence of oppression. It reasoned that Madugula’s “termination disproportionately affected Madugula’s interest as a shareholder because Madugula’s compensation was reduced to zero and he was no longer involved in decisions on material issues such as the development of JPAS.”* Finally, the lead opinion determined that the trial court had not abused its discretion by denying Taub’s motion for a new trial based on his argument that he was entitled to a bench trial. It reasoned that Taub had failed “to cite any binding precedent suggesting that the trial court’s decision on this issue or its failure to follow an unpublished opinion constitutes an abuse of discretion.” Judge BORRELLO concurred. He agreed that the trial court did not abuse its discretion by trying the matter before a jury, but he would have adopted the reasoning of the partial concurrence/dissent in Fors berg. Judge RONAYNE KRAUSE concurred in part and dissented in part. She concurred with the lead opinion’s analysis of minority shareholder oppression and affirmance of the damages award. However, she would have remanded for a new trial on the equitable remedies, including the forced share buyout, because she believed that the equitable remedies should be determined by a bench trial. Taub then sought leave to appeal in this Court. We granted Taub’s application and asked the parties to address: (1) whether claims brought under MCL 450.1489 are equitable claims to be decided by a court of equity; (2) whether the provisions of a stockholders’ agreement can create shareholder interests protected by MCL 450.1489; 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.[ ] II. STANDARD OF REVIEW This case involves questions of constitutional law, statutory interpretation, and contract interpretation, all of which are legal questions that we review de novo. III. ANALYSIS A. RIGHT TO A JURY TRIAL FOR CLAIMS UNDER MCL 450.1489 Whether § 489 claims are to be decided by a court of equity depends on whether a § 489 claimant has a right to a jury trial. A right to a jury trial can exist either statutorily or constitutionally. We must first review the plain language of the statute to determine whether the Legislature intended to provide a statutory right to a jury trial. If not, we must next consider whether a § 489 claimant nonetheless has a constitutional right to a jury trial. 1. STATUTORY ANALYSIS We first turn to the question of whether the Legislature intended to provide a statutory right to a jury trial in § 489. As with any statutory interpretation, our goal “ ‘is to give effect to the Legislature’s intent, focusing first on the statute’s plain language.’ ” In so doing, we examine the statute as a whole, reading individual words and phrases in the context of the entire legislative scheme. When a statute’s language is unambiguous, “the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted.” Section 489, commonly known as the shareholder-oppression statute, allows for actions by minority shareholders in closely held corporations against directors or those in control of the corporation for acts that are illegal, fraudulent, or willfully unfair and oppressive to the corporation or the shareholder. Section 489 reads as follows: (1) A shareholder may bring an action in the circuit court of the county in which the principal place of business or registered office of the corporation is located 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, including, without limitation, an order providing for any of the following: (a) The dissolution and liquidation of the assets and business of the corporation. (b) The cancellation or alteration of a provision contained in the articles of incorporation, an amendment of the articles of incorporation, or the bylaws of the corporation. (c) The cancellation, alteration, or injunction against a resolution or other act of the corporation. (d) The direction or prohibition of an act of the corporation or of shareholders, directors, officers, or other persons party to the action. (e) 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. (f) An award of damages to the corporation or a shareholder. An action seeking an award of damages must be commenced within 3 years after the cause of action under this section has accrued, or within 2 years after the shareholder discovers or reasonably should have discovered the cause of action under this section, whichever occurs first. (3) As used in this section, “willfully unfair and oppressive conduct” means 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. Willfully unfair and oppressive conduct may include the termination of employment or limitations on employment benefits to the extent that the actions interfere with distributions or other shareholder interests disproportionately as to the affected shareholder. The term 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.[ ] Section 489 contains no express language granting the right to a jury trial and makes no mention of juries, which is a relevant consideration regarding the issue at hand. However, the Legislature’s failure to explicitly refer to a “jury” is not, in itself, dispositive. Rather, the statutory language must be examined as a whole to determine the Legislature’s intent. Madugula argues that the Legislature intended to provide a statutory right to a jury trial for a claim under § 489, citing Anzaldua v Band. At issue in Anzaldua was whether there was a right to a jury trial in an action under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. Like § 489, the WPA is silent about juries or any right thereto. The WPA provides in part, “A person who alleges a violation of this act may bring a civil action for appropriate injunctive relief, or actual damages, or both . . . .” The WPA further provides: A court, in rendering a judgment in an action brought pursuant to this act, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate.[ ] Focusing on whether a WPA claimant had a statutory right to a jury trial for a claim of actual damages, the Anzaldua Court first noted that the WPA’s mere reference to a “court” rather than a “jury” was not controlling because it was necessary to examine what the WPA “provided that the ‘court’ should do” with respect to that relief. In undertaking this inquiry, the Anzaldua Court noted that the WPA expressly couched the court’s authority to order relief in the “procedural step” of “rendering a judgment,” which is done on the basis of “previously decided issues of fact.” It explained that, while the language “rendering a judgment” did not foreclose the court from determining an award of damages, it plainly contemplated that a jury, upon proper demand, could do the same. The Anzaldua Court then recognized that damages are “a legal, rather than an equitable, remedy, and legal issues are traditionally tried to a jury.” Therefore, when the Legislature expressly provides for that relief, it may intend that relief to carry with it a right to a jury trial as well. Viewing the statutory language as a whole, the Court held that the Legislature’s inclusion of an actual damages remedy in the statute was an indication that the Legislature intended not only to provide a damages remedy under that statute, but to attach a jury right to it as well. The Anzaldua Court found further support for this conclusion in the history of the WPA and its language — namely, the fact that the Legislature imported the WPA’s language directly from the Civil Rights Act, which had been recognized as providing a right to a jury trial. However, the statutory right to a jury trial discussed in Anzaldua did not extend to claims for equitable relief under the WPA because, unlike the legal remedy of damages, a claimant seeking equitable relief has no traditional right to a jury trial on those issues. At issue in this case is whether the Legislature’s 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. We agree with Anzaldua that “actual 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 relief” — i.e., that oppression occurred— “the circuit court may make an order or grant relief as it considers appropriate,” including an award of money damages. In contrast to the WPA’s focus on “rendering a judgment,” this language emphasizes the court’s 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 discretion in deciding what relief, if any, should be awarded after shareholder oppression is established. As discussed at length below, such 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. In addition, while the Anzaldua Court concluded that the history of the WPA and its language supported the conclusion that the Legislature intended to provide a statutory right to a jury trial under the WPA, a review of the history of § 489 compels a different result. Section 489 is nearly identical in form to its predecessor, former MCL 450.1825 (§ 825), which was considered equitable in nature and was correspondingly tried to a court. Like § 489, § 825 enumerated a nonexhaustive list of various forms of equitable relief that a court could award. Section 825, however, made no mention of damages. When, in 1989, the Legislature replaced § 825 with § 489, damages were added to the nonexhaustive list of relief specified in the statute. The Legislature, however, left intact the statutory language describing the court’s authority to grant relief and provided no textual indication that, by choosing to clarify damages as being included among that relief, it intended to introduce a right to a jury into the statute as well. These circumstances fall well outside those present in Anzaldua and suggest the opposite result. Thus, unlike Anzaldua, a historical analysis of § 489 does not lead us to conclude that the Legislature intended to provide a right to a jury trial under the statute. Accordingly, we cannot conclude that the Legislature intended to provide a jury right for claims of share holder oppression under § 489. The only indication comes from the mention in § 489(l)(f) of a damages remedy; proper scrutiny, however, does not bear out that suggestion and instead signals an intent to leave all claims of relief under § 489 with a court and not a jury. 2. CONSTITUTIONAL ANALYSIS a. BACKGROUND Having determined that the Legislature did not intend to create a right to a jury trial, we must next determine whether a constitutional right to a jury trial exists for claims under § 489. Michigan’s Constitution provides, in pertinent part: “The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law.” The intention of this provision is to preserve to parties the right to have their controversies tried by jury, in all cases where the right then existed ... and suitors can not constitutionally be deprived of this right except where, in civil cases, they voluntarily waive it by failing to demand it in some mode which the legislature shall prescribe.[ ] Not only is the right to a jury trial “preserved in all cases where it existed prior to adoption of the Constitution,” the constitutional guarantee also applies “to cases arising under statutes enacted subsequent to adoption of the Constitution which are similar in character to cases in which the right to jury trial existed before the Constitution was adopted.” However, we have also recognized in certain cases the right to trial by court. This Court has stated, “ ‘[T]he distinctions between law and equity must continue to be recognized for the purpose of preserving constitutional rights to trial by jury in legal matters and trial by court in equity matters’ ” Long ago, we recognized that “[t]he right to have equity controversies dealt with by equitable methods is as sacred as the right of trial by jury.” That is, “[t]he cognizance of equitable questions belongs to the judiciary as a part of the judicial power, and under our Constitution must remain vested where it always has been vested heretofore.” To determine whether a constitutional right to a jury trial attaches to a claim brought under § 489, which was enacted after the 1963 Constitution, we must consider whether a § 489 claim is similar in character to a claim that afforded the right to a jury trial at the time the 1963 Constitution was adopted. We focus on “the nature of the controversy between the parties . . . .” If the nature of the controversy would have been consid ered legal at the time the 1963 Constitution was adopted, the right to a jury trial is preserved. However, if the nature of the controversy would have been considered equitable, then it must be heard before a court of equity. In making this determination, we consider not only the nature of the underlying claim, but also the relief that the claimant seeks. Indeed, equity will not take “jurisdiction of cases where a suitor has a full, complete, and adequate remedy at law, unless it is shown that there is some feature of the case peculiarly within the province of a court of equity.” Accordingly, we must consider the relief sought as part of the nature of the claim to determine whether the claim would have been denominated equitable or legal at the time the 1963 Constitution was adopted. In sum, our inquiry in this case is whether a claim similar to one under § 489 would have been considered legal or equitable in nature at the time that the 1963 Constitution was adopted. b. THE UNDERLYING CLAIM A § 489 claim has similarities to two types of claims that existed before the adoption of the 1963 Constitution: shareholder derivative claims against the directors or those in control of the corporation and claims for corporate dissolution. We will discuss each in turn. A § 489 claim allows a shareholder to bring suit against the directors or those in control of the corporation for fraud, illegality, or oppressive conduct. Shareholders have long been able to bring a similar claim for fraud, illegality, abuses of trust, and other oppressive conduct on the part of those in control of the corporation through a shareholder derivative action. Whereas a shareholder in a derivative action sues on behalf of the corporation, a shareholder bringing a § 489 claim may sue the directors directly or derivatively — i.e., on his or her own behalf or on behalf of the corporation. However, even when a shareholder brings a claim on his or her own behalf under § 489, the claim is often derivative in nature because the remedies sought affect the corporation. Accordingly, a § 489 claim is similar in nature to a shareholder derivative claim, and we must determine whether such a claim would be denominated equitable or legal in nature at the time the 1963 Constitution was adopted. In Miner v Belle Isle Ice Co, this Court, considering a minority stockholder’s action against the majority stockholder and the corporation, addressed the power of a court of equity to remedy the oppression of a minority shareholder. After concluding that the majority stockholder’s actions harmed the minority stockholder, the Court stated: It cannot be denied that minority stockholders are bound hand and foot to the majority in all matters of legitimate administration of the corporate affairs; and the courts are powerless to redress many forms of oppression, practiced upon the minority under a guise of legal sanction, which fall short of actual fraud.[ ] However, because the majority shareholder’s actions were a breach of trust, the Court recognized that the “ ‘jurisdiction of a court of equity reaches such a case, to give such a remedy as its circumstances may require.’ ” The Miner Court concluded, “[A] court of equity will not so far tolerate such a manifest violation of the rules of natural justice as to deny him the relief to which his situation entitles him.” It continued, “[A] court of equity, under the circumstances of this case, in the exercise of its general equity jurisdiction, has the power to grant to this complainant ample relief, even to the dissolution of the trust relations.” Indeed, courts of equity have long heard shareholders’ direct or derivative claims against the majority shareholders or directors for fraud, illegality, or other oppressive conduct. Since Miner, this Court has continued to recognize a court of equity’s power “in case of fraud, abuse of trust, or misappropriation of corporate funds, at the instance of a single stockholder, to grant relief and compel a restitution.. . .” Accordingly, a § 489 claim, insofar as it is similar to a shareholder derivative claim, would have been considered equitable in nature at the time the 1963 Constitution was adopted. In addition, a § 489 claim is similar to a common-law claim for dissolution. At the time the 1963 Constitution was adopted, shareholders could bring a claim for dissolution of a corporation based on instances of fraud, illegality, or abuse of trust by other shareholders, or even deadlock between shareholders. Historically, “ ‘[t]he general rule . . . [was] that courts of equity have no power to wind up a corporation, in the absence of statutory authority.’ ” However, by 1963, Michigan “ha[d] squarely aligned itself with those jurisdictions holding that a court of equity has inherent power to decree the dissolution of a corporation when a case for equitable relief is made out upon traditional equitable principles.” Thus, the nature of a § 489 claim— allowing a shareholder to seek dissolution if he or she can establish fraud, illegality, or oppressive conduct — is consistent with a common-law claim for dissolution, which was considered equitable in nature at the time the 1963 Constitution was adopted. Finally, claims similar to those under § 489, which may ultimately affect the shareholders and the corporation itself, typically involve difficult determinations of adequate relief. At the time the 1963 Constitution was adopted, it was recognized that “[a] suit in equity ... is proper ... if there are circumstances of great complication or difficulty in the way of adequate relief at law.” This is because “[jjuries cannot devise specific remedies, or safely deal with complicated interests, or with relief given in successive stages, or adjusted to varying conditions.” In this regard, this Court has recognized that “[c]ourts of law are inadequate to protect the rights and interests of creditors and stockholders.” In sum, we conclude that a § 489 claim, given its similarities to equitable shareholder derivative claims and claims for dissolution, would have been denominated equitable in nature at the time the 1963 Constitution was adopted. c. THE RELIEF SOUGHT Having determined that the underlying claim of shareholder oppression would have been denominated equitable in nature at the time the 1963 Constitution was adopted, we must next consider the remedy sought by Madugula. From Madugula’s complaint, it is unclear what remedies he sought specifically for his § 489 claim. However, by the time the trial began, Madugula was seeking a forced buyout of his stock and money damages under § 489(1) (e) and (f). Despite Madugula’s request for specific relief, the court was free under the language of the statute to grant relief as it considered appropriate, or none at all, even if he were to establish his claim of oppression. The fact that the relief sought did not bind the court is consistent in nature with a claim before a court of equity because the remedies sought by a claimant do not bind a court of equity. That is, [t]he premises of a bill in equity — not its prayer — are determinative of the substance thereof, and this is but another way of saying that relief within scope of the bill is the final responsibility of the chancellor and that the prayer aids rather than dictates equity’s decretal beneficence.[ ] Furthermore, a claim for which the court has broad power to fashion relief as the circumstances require is consistent with an action in equity. Accordingly, we conclude that a claim, like one under § 489, that allows the court to shape the remedy regardless of what a claimant seeks would have been considered equitable in nature at the time the 1963 Constitution was adopted. Moreover, the enumerated remedies available to the court in its discretion under § 489(1) (a) to (f) and, more specifically, those sought by Madugula in this case do not change our determination. As discussed previously, dissolution of the sort contemplated under § 489(1) (a) was awarded by courts of equity at the time the 1963 Constitution was adopted. Moreover, § 489(l)(b) and (c) allow a court to cancel or alter corporate documents or resolutions; that relief is equitable in nature because “[ejquity has jurisdiction where complete protection and relief requires the cancellation of written instruments, the rescission of a transaction, or other specific relief of equitable character.” Section 489(l)(d) allows a court to direct or prohibit an act of the corporation or relevant persons. Section 489(l)(e) allows a court to compel the purchase at fair value of the shares of the shareholder. Although the final result of a forced buyout under § 489(1) (e) is a payment of money, the relief sought requires the court to compel a party to purchase shares. Relief requiring a court to compel another to act, like that of § 489(l)(d) and (e), has long been considered equitable in nature. Accordingly, the relief enumerated in § 489(1)(a) to (e) was within the province of a court of equity, not a court of law, at the time the 1963 Constitution was adopted. Finally, the fact that § 489(l)(f) allows a court to award money damages, or the fact that Madugula sought damages in this action, does not change our conclusion regarding the equitable nature of a § 489 claim. We recognize that claims for money damages were generally considered legal in nature at the time the 1963 Constitution was adopted. However, as noted above, these money damages are only one remedy available to a court in granting the relief it deems appropriate after a shareholder establishes a claim of oppression. This is consistent with actions that are equitable in nature because “[a] court of equity may adapt its relief to the exigencies of the case, and, when nothing more is required, may order a sum of money to be paid to the plaintiff, or give him a personal judgment therefor, to be enforced by execution.” Indeed, we have long recognized that a court sitting in equity could award damages when necessary. Therefore, although we recognize that damages are generally a legal remedy, we conclude that the availability of money damages does not change the overall equitable nature of a § 489 claim. As previously discussed, our jurisprudence requires that the entire nature of the claim be considered, not just the relief sought, when determining whether there is a constitutional right to a jury trial. Giving the court the discretion to award money damages after a shareholder establishes a claim of oppression is wholly consistent with a court of equity’s ability to adapt its relief to the circumstances of the case. In sum, we hold that a § 489 claim would have been denominated equitable at the time the 1963 Constitution was adopted. Therefore, no constitutional right to a jury trial exists under § 489. Instead, a § 489 claim, in its entirety, must be tried before a court of equity. 3. APPLICATION In his complaint, Madugula demanded a jury trial. Through a motion in limine before trial, Taub argued that there was no right to a jury trial for Madugula’s sole remaining claim under § 489 and requested that the claim be decided at a bench trial. The trial court denied Taub’s motion. Thereafter, a jury heard Madugula’s shareholder-oppression claim, and the trial court allowed the jury to consider whether damages or the equitable remedy of a forced stock buyout under § 489(l)(e) was proper. After the jury awarded both in favor of Madugula, the trial court entered a judgment reflecting the jury’s verdict. After trial, Taub renewed his objection to the jury trial through a motion for a new trial. The trial court abused its discretion by not granting Taub’s 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 Madugula’s 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. As we noted previously, “|j]uries cannot devise specific remedies . . . .” That is, after 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 Madugula’s § 489 claim. We recognize that MCR 2.509(D) allows a court to use an advisory jury to determine issues of fact. In fact, this Court has long recognized the use of advisory juries in equity settings. However, even when a court of equity uses an advisory jury to decide issues of fact, the court must still state its own findings of the facts and conclusions of law. That did not occur in this case. Accordingly, we remand 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 under MCR 2.517(A) or whether a new trial is necessary. B. USE OF A SHAREHOLDER AGREEMENT TO ESTABLISH SHAREHOLDER OPPRESSION We are also asked to determine whether evidence of a breach of a shareholder agreement can be used to establish shareholder oppression under § 489. That is, we must determine whether a private contractual agreement (the stockholders’ agreement in this case) can give rise to shareholder interests that are actionable under § 489 if violated. Section 489(3) reads: “[Wlillfully unfair and oppressive conduct” means 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. Willfully unfair and oppressive conduct may include the termination of employment or limitations on employment benefits to the extent that the actions interfere with distributions or other shareholder interests disproportionately as to the affected shareholder. The term 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.[ ] Notably, “willfully unfair and oppressive conduct” occurs when the conduct “substantially interferes with the interests of the shareholder as a shareholder.” The parties quarrel over what a shareholder’s interests as a shareholder actually entail. This Court has never exhaustively listed the interests or rights that shareholders have as shareholders of a corporation. However, we have recognized that “[t]he relation between a corporation and its stockholders is contractual in its nature” and that “[t]he charter of a corporation is its constitution. It prescribes the duties of stockholders and directors within the limits of the charter in the exercise of the power conferred upon them.” Beyond a corporation’s articles of incorporation, we may also consider a corporation’s bylaws and the governing statutes to determine a shareholder’s interests. Under the BCA, a shareholder is “a person that holds units of proprietary interest in a corporation. . . ,” Through this interest in the corporation, a shareholder retains certain statutory rights that allow the shareholder to protect and gain from his or her interest as a shareholder, including, but not limited to, the right to vote, inspect the books, and receive distributions. The BCA also allows shareholders to enter into voting agreements and shareholder agreements. Through a voting agreement, shareholders may agree to modify how the shares held by them are voted. Through a shareholder agreement, shareholders are able to modify several of the statutory rights and interests. A shareholder agreement, if it complies with the requirements of MCL 450.1488, “is effective among the shareholders and the corporation. . . .” Thus, although the BCA provides specific rights and interests to a shareholder as a shareholder, shareholders are entitled to modify these rights and interests through shareholder agreements. In this case, Taub argues that the Court of Appeals erred by concluding that a breach of the contractual rights set forth in the stockholders’ agreement could give rise to a statutory shareholder-oppression claim under § 489. However, Taub fails to recognize that several of the rights modified in the stockholders’ agreement were Madugula’s rights as a shareholder. Under the stockholders’ agreement, the shareholders agreed to elect each other as the directors of the corporation, which is normally a right reserved to shareholders. The stockholders’ agreement provided the shareholders with preemptive rights. It also modified the voting rights by instituting a 70 percent super-majority for certain corporate actions. Accordingly, as permitted under MCL 450.1461 and 450.1488, the shareholders entered into a stockholders’ agreement that modified the shareholders’ statutory rights and interests as shareholders. Because these modified rights and interests are statutorily effective among shareholders and the corporation, evidence of a breach of those rights or interests may be evidence of shareholder oppression. Thus, we agree with the Court of Appeals to the extent that it determined that a breach of the rights and interests contained in the stockholders’ agreement could be evidence of shareholder oppression. However, it remains to the trial court to determine on remand whether and to what extent any breach of the stockholders’ agreement evidences such oppression in this case. IV CONCLUSION We hold that the language of MCL 450.1489 does not afford a claimant a right to a jury trial. Instead, the language indicates a legislative intent to have a § 489 claim heard by a court sitting in equity. We further hold that the Michigan Constitution does not afford a right to a jury trial for claims brought under § 489 because those claims would have been considered equitable in nature at the time the 1963 Constitution was adopted. Finally, we hold that violations of a shareholder agreement may constitute evidence of shareholder oppression pursuant to § 489(3). Because the trial court erred by submitting Madugula’s § 489 claim to the jury and allowing it to award an equitable remedy, the Court of Appeals erred by affirming the trial court’s judgment. Therefore, we reverse the judgment of the Court of Appeals, reverse the judgment of the trial court in favor of Madugula, and remand the case to the trial court to determine whether, on the present record, sitting as a court of equity, it can make the requisite findings of fact and conclusions of law under MCR 2.517(A) or whether a new trial is necessary. Young, C.J., and Cavanagh, Markman, Kelly, Zahra, and MCCORMACK, JJ., concurred with VMANO, J. Dataspace and Flower are not parties to this appeal. The shareholders also entered into a buy-sell agreement, which sets forth the procedures to be followed upon the death or permanent disability of a shareholder or the voluntary withdrawal by a shareholder. Madugula elected himself as a member of the board of directors. A supermajority was also necessary for the adoption of certain benefit or stock plans, a sale of assets other than in the ordinary course of business, the establishment of annual capital expense budgets or actual capital expenses exceeding $100,000 a year, and any other corporate action that would have a material adverse impact on the shareholders. The court also granted Taub’s motion for summary disposition as cross-plaintiff against Madugula on a claim that Madugula owed Taub money from a loan for the initial stock purchase. The court determined that Madugula owed Taub $107,892.34, but it denied Taub’s request for the immediate release of those funds. Forsberg v Forsberg Flowers, Inc, unpublished opinion per curiam of the Court of Appeals, issued December 5, 2006 (Docket No. 263762). Although neither party raised the issue, there is a discrepancy in the jury’s verdict with regard to the stock buyout. The verdict form required the jury to first answer whether there was willfully unfair and oppressive conduct by Taub against Madugula (Question No. 1) and then whether that conduct substantially interfered with Madugula’s interest as a shareholder (Question No. 2). The jury answered yes to both questions. Because it answered yes to both, it was then required to answer Question No. 3: “Is Plaintiff Rama Madugula entitled to economic damages?” The jury answered yes and then awarded him damages totaling $191,675 (Question No. 4). At this point, the jury should have stopped because Question No. 5 read, “If your answer to Question No. 3 was ‘NO’, is Mr. Madugula entitled to have his stock purchased by Defendant Benjamin Taub?” Notwithstanding the fact that the jury answered yes to Question No. 3, the jury continued on to award Madugula $1.2 million for the fair-value buyout of his stock (Question No. 6). Thus, by the terms of the verdict form, having already awarded economic damages under Question No. 3 and No. 4, the jury should not have considered Question No. 5 or No. 6. There was no discussion on the record of this discrepancy. The court and counsel simply accepted the verdict, and the court entered a judgment reflecting both amounts set forth on the verdict form. Madugula v Taub, unpublished opinion of the Court of Appeals, issued October 25, 2012 (Docket No. 298425). Id. at 3-4 (opinion by Riordan, J.). Id. at 4. Id. at 4-5. Id. at 5. Id. at 1-2 (opinion by Borrello, J.). Id. at 1 (opinion by RONAYNE Krause, EJ.). Madugula v Taub, 494 Mich 862 (2013). Sweebe v Sweebe, 474 Mich 151, 154; 712 NW2d 708 (2006); Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634 (2013). See Conservation Dep’t v Brown, 335 Mich 343, 346; 55 NW2d 859 (1952). We examine the statute first because, depending on our resolution of the statutory issue, we may not need to reach the constitutional question. See Lisee v Secretary, 388 Mich 32, 40; 199 NW2d 188 (1972) (“[I]t is well settled in Michigan that ‘[c]onstitutional questions will not be passed upon when other decisive questions are raised by the record which dispose of the case.’ ”) (citation omitted) (second alteration in original). See Brown, 335 Mich at 346. Malpass v Dep’t of Treasury, 494 Mich 237, 247-248; 833 NW2d 272 (2013) (citation omitted). Id. In addition, according to MCL 450.1103(c), the BCA must be liberally construed and applied “[t]o give special recognition to the legitimate needs of close corporations.” Malpass, 494 Mich at 249 (citation and quotation marks omitted). MCL 450.1489. Malpass, 494 Mich at 248. Anzaldua v Band, 457 Mich 530; 578 NW2d 306 (1998). MCL 15.363(1). MCL 15.364. Anzaldua, 457 Mich at 536. Id. Id. at 537-539. Id. at 541. Id. at 542-543. Id. at 543. Id. at 543-548. The Anzaldua Court specifically held “that, by including [the term ‘actual damages’], the Legislature intended that the act contain a right to a jury trial.” Id. at 543. Similarly, at the conclusion of its analysis, the Court stated: Where (1) an action by its nature is not jury barred, (2) the claim is for money damages, (3) the Legislature provided for it to be brought in circuit court, and (4) the Legislature did not deny the right to a jury, the plaintiff properly may demand a trial by jury. [Id. at 549-550.] Despite this language, we do not read Anzaldua as standing for the proposition that the inclusion of a damages remedy in a statute automatically attaches a right to a jury trial. Rather, we read Anzaldua as meaning that the inclusion of a damages remedy is an indicator that the Legislature may have intended to provide a statutory right to a jury trial, but it is not a dispositive factor. As always, and as done both here and in Anzaldua, the statute must be read as a whole to determine the intent of the Legislature. Malpass, 494 Mich at 248. The four-pronged test set forth in Anzaldua, while perhaps a useful distillation of the Court’s rationale in that case, should not be read as supplanting or excusing a court’s fundamental interpretive obligations, nor does its satisfaction foreclose a court from concluding, on the basis of proper review of the statute as a whole, that the Legislature did not intend to attach a jury right to a claim of damages. Anzaldua, 457 Mich at 538, 541. See id. at 541. While the availability of damages does not automatically afford a right to a jury trial in Michigan, as discussed below, an action for damages has long been considered to be an action at law to which a right to a jury trial attaches. See, e.g., McFadden v Detroit Bar Ass’n, 4 Mich App 554, 558; 145 NW2d 285 (1966) (concluding that the plaintiff had an adequate remedy at law — an action for damages — and a right to a jury trial for that action); Mich Bean Co v Burrell Engineering & Constr Co, 306 Mich 420,424; 11 NW2d 12 (1943) (recognizing that the plaintiffs action for damages was a law action that “must be brought on the law side of the court where the parties may have the benefit of a trial by jury”); Teft v Stewart, 31 Mich 367, 371-372 (1875) (recognizing that the plaintiffs action for a single judgment of damages was legal in nature and to be heard by a jury). See Grange Ins Co of Mich v Lawrence, 494 Mich 475,493; 835 NW2d 363 (2013) (“[Wjhere the Legislature uses a technical word that has acquired a particular meaning in the law, and absent any contrary legislative indication, we construe it ‘according to such peculiar and appropriate meaning.’ ”), quoting MCL 8.3a. We focus on the statutory reference to an award of damages within § 489(1)(0 because the remedies listed within § 489(l)(a) through (e) are equitable, rather than legal, in nature and thus are not traditionally tried to a jury. See Part 111(A)(2)(c) of this opinion; see also Anzaldua, 457 Mich at 541. See Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999) (recognizing that statutes must be read as a whole and that we must “consider both the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme”) (citation and quotation marks omitted). MCL 450.1489(1). MCL 450.1489(1) (providing that the court’s discretion in determining the appropriate relief is “without limitation”). See Part 111(A)(2)(c) of this opinion. See id. See Anzaldua, 457 Mich at 543-548. Repealed by 1989 PA 121. See, e.g., Barnett v Int’l Tennis Corp, 80 Mich App 396, 403; 263 NW2d 908 (1978); Moore v Carney, 84 Mich App 399, 405; 269 NW2d 614 (1978); Salvador v Connor, 87 Mich App 664, 673-674; 276 NW2d 458 (1978). Const 1963, art 1, § 14. See also MCR 2.508(A) (“The right of trial hy jury as declared by the constitution must he preserved to the parties inviolate.”). Prior versions of the Michigan Constitution contained similar provisions. See Const 1908, art 2, § 13; Const 1850, art 6, § 27; Const 1835, art 1, § 9. These provisions were derived from the Northwest Ordinance of 1787, art II. Tabor v Cook, 15 Mich 322, 325 (1867). Brown, 335 Mich at 346. Abner A Wolf, Inc v Walch, 385 Mich 253, 261; 188 NW2d 544 (1971) (emphasis added) (citation omitted). Brown v Buck, 75 Mich 274, 284; 42 NW 827 (1889). Id. at 285. We recognize that our Constitution requires us to abolish, as far as practicable, the distinctions between law and equity proceedings. Const 1963, art 6, § 5. However, the provision does not abolish the historical differences between law and equity, nor can the distinction between law and equity be abolished so far as to remove the constitutional right to a jury trial. See Holland Sch Dist v Holland Ed Ass’n, 380 Mich 314, 319; 157 NW2d 206 (1968); Abner A Wolf, 385 Mich at 261. Brown, 335 Mich at 346. Risser v Hoyt, 53 Mich 185, 201; 18 NW 611 (1884). Abner A Wolf, 385 Mich at 261. Id. For further discussion, see then Judge Markman’s analysis of this issue in the Court of Appeals’ opinion in Anzaldua v Band, 216 Mich App 561; 550 NW2d 544 (1996), aff’d on other grounds 457 Mich 530 (1998). In particular, see his explanation of why the nature-of-the-action approach provides the proper framework for determining whether the constitutional right to a jury trial attaches to a statute enacted after the adoption of the 1963 Constitution. Detroit Trust Co v Old Nat’l Bank of Grand Rapids, 155 Mich 61, 65; 118 NW 729 (1908). For instance, at the time the 1963 Constitution was adopted, the relief sought could meaningfully bear on whether the nature of the claim was considered legal or equitable. See, e.g., Teft, 31 Mich at 371-372 (“The facts as given, and the case as shaped, point to just the action and relief peculiar to a court of law. They look to a single judgment for damages, and nothing else. The case, then, was really of legal, and not in strict propriety of equitable cognizance.”). See Moore, 84 Mich App at 402 (“This suit was brought in equity by the plaintiff on behalf of herself as a minority shareholder. It also had some aspects of a shareholder derivative suit, relief sought was dissolution of the corporation and to have plaintiffs interest bought out.”). Miner v Belle Isle Ice Co, 93 Mich 97, 98-108; 53 NW 218 (1892). The case was on appeal from a court sitting in chancery. Courts in chancery were those courts with equitable jurisdiction. See Cady v Centreville Knit Goods Mfg Co, 48 Mich 133, 135; 11 NW 839 (1882). Miner, 93 Mich at 114 (citation omitted and quotation marks). Id. at 115 (citation omitted). Id. at 117. Id. Ultimately, the Court appointed a receiver to wind up the affairs of the corporation, required the majority stockholder to account for all money illegally paid by him or paid to him, ordered the majority stockholder to pay all those funds back to the corporation and all costs and fees incurred by the corporation in the proceedings, and ordered the majority stockholder to pay the complainant’s costs for the proceedings. Id. at 117-118. See, e.g., Nahikian v Mattingly, 265 Mich 128; 251 NW 421 (1933); Witter v LeVeque, 244 Mich 83; 221 NW 131 (1928); Crowe v Consolidated Lumber Co, 239 Mich 300; 214 NW 126 (1927); Thwing v Weibatch Liquid Scale Co, 233 Mich 87; 206 NW 320 (1925); Marcoux v Reardon, 203 Mich 506; 169 NW 893 (1918); Essex v Essex, 141 Mich 200; 104 NW 622 (1905); Edwards v Mich Tontine Investment Co, 132 Mich 1; 92 NW 491 (1902); Walsh v Goulden, 130 Mich 531; 90 NW 406 (1902); Flynn v Third Nat’l Bank of Detroit, 122 Mich 642; 81 NW 572 (1900); Keeney v Converse, 99 Mich 316; 58 NW 325 (1894). Miner, 93 Mich at 112. See also Futernick v Statler Builders, Inc, 365 Mich 378, 386; 112 NW2d 458 (1961); Kimball v Bangs, 321 Mich 394, 416; 32 NW2d 831 (1948); Dean v Kellogg, 294 Mich 200, 207; 292 NW 704 (1940); Van Wie v Storm, 278 Mich 632, 636; 270 NW 814 (1937). See Levant v Kowal, 350 Mich 232, 242-243; 86 NW2d 336 (1957). Town v Duplex-Power Car Co, 172 Mich 519, 528; 138 NW 338 (1912), quoting Miner, 93 Mich at 112. Levant, 350 Mich at 241. A review of § 489 and its predecessor indicates that § 489 evolved from a common-law claim for dissolution. When the Legislature enacted the BCA through 1972 PA 284, former MCL 450.1825(1) allowed a circuit court to “adjudge the dissolution of, and liquidate the assets and business of, a corporation” for fraudulent, illegal, or willfully unfair and oppressive conduct on the part of a director or person in control of the corporation, thus making it similar to a common-law action for dissolution. However, the Legislature allowed a court under § 825(2) to fashion equitable remedies similar to those in § 489(l)(b) to (e) if the court did not believe that dissolution was proper. As discussed above, actions under § 825 were considered equitable in nature — a character that was preserved when the Legislature replaced § 825 with § 489, moving dissolution into and adding damages to the nonexhaustive list of remedies available to the circuit court in its discretion. Second Mich Coop Housing Ass’n v First Mich Coop Housing Ass’n, 358 Mich 252, 256; 99 NW2d 665 (1959). Brown, 75 Mich at 285. Torrey v Toledo Portland Cement Co, 150 Mich 86, 91; 113 NW 580 (1907) (“Equity can and should extend its strong and beneficent arm to protect the rights of all.”). See MCL 450.1489(1). Herpolsheimer v A B Herpolsheimer Realty Co, 344 Mich 657, 665-666; 75 NW2d 333 (1956) (citations omitted). The Herpolsheimer Court recognized that if a “plaintiff [in equity] . .. establishes the right he has pleaded, equity’s grace will come to him” and “[t]he shape of that relief will be formed by the chancellor according to germane conditions and equities existing at the time decree is made — not of necessity by the prayer of the bill.” Id. at 665 (citation omitted). Miner, 93 Mich at 115. Levant, 350 Mich at 241. Haylor v Grigg-Hanna Lumber & Box Co, 287 Mich 127, 133; 283 NW 1 (1938). See Bahls, Resolving Shareholder Dissension: Selection of the Appropriate Equitable Remedy, 15 J Corp L 285, 298 (1990) (“Although the statutes of many states expressly authorize courts to require the majority shareholder or the corporation to purchase the interest of minority shareholders, courts at common law have always had the inherent equitable power to order share purchases.”) (citations omitted). See, e.g., Maxwell v Eddy Paper Co, 232 Mich 356; 205 NW 111 (1925); Stevenson v Sicklesteel Lumber Co, 219 Mich 18; 188 NW 449 (1922); Detroit Trust Co v Goodrich, 175 Mich 168; 141 NW 882 (1913); Graves v Brooks, 117 Mich 424; 75 NW 932 (1898); Hunter v Roberts, Throp & Co, 83 Mich 63; 47 NW 131 (1890); Bengley v Wheeler, 45 Mich 493; 8 NW 75 (1881). Teft, 31 Mich at 371-372. Grigg v Hanna, 283 Mich 443, 460; 278 NW 125 (1938) (citations and quotation marks omitted). See, e.g., Carson v Milcrow Motor Sales, 303 Mich 86; 5 NW2d 665 (1942) (affirming in part a chancery court’s award of damages); Backus v Kirsch, 264 Mich 339; 249 NW 872 (1933) (affirming the chancery court’s jurisdiction to award damages as incident to equitable relief); Mich Sugar Co v Falkenhagen, 243 Mich 698, 701-702; 220 NW 760 (1928) (remanding to the chancery court to for an award of damages after determining that specific performance was improper); Rhoades v McNamara, 135 Mich 644, 646; 98 NW 392 (1904) (determining that the chancery court’s award of damages had not deprived the defendant of his constitutional right to a jury trial because the court of equity had jurisdiction over the controversy and “[hjaving jurisdiction, the court should dispose of every question involved”); McLean v McLean, 109 Mich 258, 261; 67 NW 118 (1896) (decreeing an award of $500 after concluding that an accounting would not be helpful). See Abner A Wolf, 385 Mich at 261. See Brown, 75 Mich at 284. Id. Id. at 285. In his brief on appeal, Taub states that he conceded in the Court of Appeals that there was a right to a jury trial under § 489 for a claim of damages. Normally, Taub’s concession would compel us to treat the issue as abandoned. See Coddington v Robertson, 160 Mich App 406, 412; 407 NW2d 666 (1987). However, we decline to be bound by Taub’s concession in this case. Leaving in place the award of damages in favor of Madugula would improperly constrain the plenary authority of the court sitting in equity to determine on remand not only whether shareholder oppression occurred, but also what remedy is appropriate and to whom it should be given. Further, guidance in this area is necessary because courts have struggled to determine whether a right to a jury trial exists under § 489. See Madugula v Taub, unpublished opinion of the Court of Appeals, issued October 25, 2012 (Docket No. 298425); Forsberg v Forsberg Flowers, Inc, unpublished opinion per curiam of the Court of Appeals, issued December 5, 2006 (Docket No. 263762). Therefore, “we cannot consent to be bound by any concession of counsel on so important a question.” Busch v Nester, 62 Mich 381, 384; 28 NW 911 (1886). MCR 2.509(D) reads: Advisory Jury and Trial by Consent. In appeals to circuit court from a municipal court and in actions involving issues not triable of right by a jury because of the nature of the issue, the court on motion or on its own initiative may (1) try the issues with an advisory jury; or (2) with the consent of all parties, order a trial with a jury whose verdict has the same effect as if tried by jury had been a matter of right. See, e.g., McPeak v McPeak, 457 Mich 311; 577 NW2d 670 (1998); Business Men’s Assurance Co v Marriner, 223 Mich 1; 193 NW 907 (1923); Marcoux, 203 Mich 506; Cole v Cole Realty Co, 169 Mich 347; 135 NW 329 (1912); Detroit United Railway v Smith, 144 Mich 235; 107 NW 922 (1906); Maier v Wayne Circuit Judge, 112 Mich 491; 70 NW 1032 (1897). See Ray v Mason Co Drain Comm’r, 393 Mich 294, 301-302; 224 NW2d 883 (1975). See also MCR 2.517(A)(1) (“In actions tried on the facts without a jury or with an advisory jury, the court shall find the facts specially, state separately its conclusions of law, and direct entry of the appropriate judgment.”). MCL 450.1489(3). Voigt v Remick, 260 Mich 198, 204; 244 NW 446 (1932). Id. at 205. 12B Fletcher, Cyclopedia of Corporations, § 5715, p 23. MCL 450.1109(2). See MCL 450.1441, 450.1487(2), and 450.1345; see also MCL 450.1231, 450.1343, 450.1405, 450.1505(2), and 450.1511. MCL 450.1461 For example, shareholder agreements can modify the method of distributions, establish directors or officers, “govern!] the exercise or division of voting power by or between the shareholders and directors or by or among any of the shareholders or directors, including use of weighted voting rights or director proxies,” change dissolution requirements, and more. MCL 450.1488(1). Id. That is not to say that a violation of one of these rights automatically establishes a claim of shareholder oppression. Under § 489(3), the oppressive conduct must be “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.” MCL 450.1489(3). In addition, “[w]illfully unfair and oppressive conduct may include the termination of employment or limitations on employment benefits to the extent that the actions interfere with distributions or other shareholder interests disproportionately as to the affected shareholder.” Id. We also asked the parties to address whether Madugula’s interests as a shareholder were interfered with disproportionately by the actions of Taub given that Madugula retained his corporate shares and his corporate directorship. We need not answer this question in light of our decision to reverse the Court of Appeals’ judgment and remand for further proceedings. The trial court will make this determination on remand.
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VIVIANO, J. The issue in this case is whether the execution of a lease of tangible personal property in Michigan constitutes “use” for purposes of the Use Tax Act (UTA). Petitioner, a Michigan corporation, purchased an aircraft from one company and immediately executed a five-year lease to another company that already had possession of the aircraft. The Department of Treasury assessed a use tax against petitioner based on the lease transaction, and the Michigan Tax Tribunal ultimately upheld the assessment. The Court of Appeals reversed, holding that petitioner did not “use” the aircraft because it ceded total control of the aircraft to the lessee by virtue of the lease and the lessee had uninterrupted possession of the aircraft before and during the lease. We granted leave, directing the parties to “address the applicability of the use tax to a transaction where tangible personal property is purchased by one party and leased to another party when the purchaser/lessor does not obtain actual possession of the property.” We reverse and remand. This case requires us to interpret and apply the pertinent statutory provisions of the UTA. When interpreting a statute, this Court’s primary goal “is to give effect to the Legislature’s intent, focusing first on the statute’s plain language.” When the words of a statute are unambiguous, we must enforce them as written and no further judicial construction is permitted. Under the UTA, a 6% tax is levied “for the privilege of using, storing, or consuming tangible personal property in this state ... .” The UTA defines “use,” in pertinent part, as: [T]he exercise of a right or power over tangible personal property incident to the ownership of that property including transfer of the property in a transaction where possession is given.[ ] In light of this statutory definition, we must determine whether petitioner exercised a right or power incident to ownership in Michigan when it executed a lease of the aircraft in question. It is a basic precept of property law that a property owner has the right to the use and enjoyment of his or her personalty. A corollary to this right is the property owner’s right to allow others to use his or her property in exchange for consideration. One way in which a property owner exercises this right is by executing a lease. Therefore, because the right to allow others to use one’s personal property is a right incident to ownership, and a lease is an instrument by which an owner exercises that right, it follows that the execution of a lease is an “exercise of a right or power over tangible personal property incident to the ownership of that property ... ,” In arriving at the opposite conclusion, the Court of Appeals relied on WPGP1, Inc v Dep’t of Treasury, and Czars, Inc v Dep’t of Treasury, two cases that distinguished between partial and 'total relinquishment of control of an aircraft for purposes of assessing the use tax. According to those cases, when an out-of-state owner allows another person to use his or her aircraft, and that person uses the aircraft in Michigan, the owner is subject to Michigan use tax unless the owner can show that he or she previously relinquished total control. However, we find those cases factually distinguishable because, unlike the present case, neither involved the execution of a lease in Michigan. In applying Czars and WPGP1 to the facts of this case, the Court of Appeals failed to recognize that the act of ceding control of an aircraft can, itself, be an exercise of a right incident to ownership. In this case, petitioner relinquished control of its property by executing a lease in Michigan. As previously discussed, that act, alone, is sufficient to constitute “use” under the UTA. The Court of Appeals also maintained that “a transfer of property unaccompanied by a transfer of possession is simply not ‘use’ that is subject to the tax.” The basis for this conclusion was the emphasized portion of the statutory definition of “use”: [T]he exercise of a right or power over tangible personal property incident to the ownership of that property including transfer of the property in a transaction where possession is given.[ ] The statutory language on which the Court of Appeals relied is introduced by the term “including.” As we have stated previously, “including” is a term of enlargement, not limitation. Thus, a transaction in which possession is transferred is but one way to satisfy “use” under the UTA; it is not the only way, as the Court of Appeals erroneously held. The execution of a lease in Michigan is the exercise of a right incident to property ownership and, therefore, falls squarely within the statutory definition of “use.” We hold that petitioner “used” the aircraft in question for purposes of the UTA when it executed a lease of the aircraft in Michigan, regardless of whether it ever had actual possession of the aircraft. We reverse the judgment of the Court of Appeals and remand the case to that Court to consider petitioner’s alternative claim challenging the calculation of the assessment amount. Young, C.J., and Cavanagh, Markman, Kelly, Zahra, and McCORMACK, JJ., concurred with Viviano, J. MCL 205.91 et seq. NACG Leasing v Dep’t of Treasury, unpublished opinion per curiam of Court of Appeals, issued October 16, 2012 (Docket No. 306773), unpub op at 4. NACG Leasing v Dep’t of Treasury, 494 Mich 851 (2013). Malpass v Dep’t of Treasury, 494 Mich 237, 247-248; 833 NW2d 272 (2013). Id. at 249. MCL 205.93(1). MCL 205.92(b). See, e.g., Daugherty v Thomas, 174 Mich 371, 375; 140 NW 615 (1913); Continental Motors Corp v Muskegon Twp, 376 Mich 170, 182; 135 NW2d 908 (1965) (Adams, J., dissenting) (“Property, as the word is commonly used, denotes an entire object. In its legal sense the object is broken down into various attributes — such as the right to use, the right to mortgage, the right to lease, et cetera. These rights, viewed together, are referred to as the bundle of rights involved in the ownership of property.”); 20 Mich Civ Jur, Personal Property, § 6, pp 153-154. Attorney General v Pere Marquette R Co, 263 Mich 431, 433; 248 NW 860 (1933) (“An incident of ownership is the right to sell or lease or use the property in any lawful way.”). See also Eastbrook Homes, Inc v Dep’t of Treasury, 296 Mich App 336, 348; 820 NW2d 242 (2012) (“Important rights flowing from property ownership include the right to exclusive possession, the right to personal use and enjoyment, the right to manage its use by others, and the right to income derived from the property.”). Black’s Law Dictionary (9th ed) (defining “lease” as “[a] contract by which a rightful possessor of personal property conveys the right to use and occupy the property in exchange for consideration ...”). MCL 205.92(b). WPGP1, Inc v Dep’t of Treasury, 240 Mich App 414; 612 NW2d 432 (2000). Czars, Inc v Dep’t Treasury, 233 Mich App 632; 593 NW2d 209 (1999). NACG Leasing, unpub op at 3, citing WPGP1, 240 Mich App at 417-419, and Czars, 233 Mich App at 639. WPGP1, 240 Mich App at 418-419 (holding that the out-of-state plaintiff did not “use” the aircraft because a preexisting lease executed out of state gave the lessee total control of the aircraft, including their routes and flight schedules); Czars, 233 Mich App at 639 (upholding the use-tax assessment and noting the lack of evidence showing that the plaintiff “totally or permanently relinquished control of the aircraft” to an out-of-state entity). See Fisher & Co, Inc v Dep’t of Treasury, 282 Mich App 207,212-213; 769 NW2d 740 (2009) (“Entering into a contract to give up some of one’s rights to possession or control is, itself, an exercise of those rights.”). NACG Leasing, unpub op at 5. MCL 205.92(b) (emphasis added). Mich Bell Tel Co v Dep’t of Treasury, 445 Mich 470, 479; 518 NW2d 808 (1994). Furthermore, the panel’s interpretation of § 92(b) in this regard implicitly assumes that the word “possession” in the statutory definition means “actual possession.” However, there is no indication that the statutory language contemplates, much less requires, transfer of actual possession. In addition, the Legislature’s reference to “actual” possession elsewhere in the UTA is a strong textual indication that the term “possession” in MCL 205.92(b) does not refer to actual possession. See MCL 205.94(k) (exempting from the use tax “[p]roperty purchased for use in this state where actual personal possession is obtained outside this state, the purchase price or actual value of which does not exceed $10.00 during 1 calendar month”) (emphasis added). Reading “possession” in § 92(b) to mean “actual possession” would render the Legislature’s use of “actual possession” in other statutory provisions mere surplusage, something courts must avoid when interpreting statutory language. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 468; 663 NW2d 447 (2003). Because the Court of Appeals held that petitioner was not subject to the use tax, it declined to address petitioner’s challenge to the amount of the final assessment. Petitioner requests a remand to the Tax Tribunal so that this claim can be litigated. However, the Department counters that, among other things, petitioner failed to challenge the assessment amount in the Tax Tribunal. On remand, the Court of Appeals will have the opportunity to weigh both parties’ arguments and determine whether the case should be remanded to the Tax Tribunal.
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CAVANAGH, J. This appeal involves Empire Fire and Marine Insurance Company’s obligations under an “Insurance for Non-Trucking Use” policy issued to Drielick Trucking. The policy contains a business-use exclusion, which includes two clauses that Empire argues preclude coverage in this case. The Court of Appeals agreed that the first clause precludes coverage when the covered vehicle is not carrying property at the time of the accident, as in this case. Thus, the Court of Appeals expressly declined to address the second clause relating to leased covered vehicles. Hunt v Drielick, 298 Mich App 548, 553 n 2; 828 NW2d 441 (2012). We hold that the Court of Appeals erred for the reasons explained in this opinion and reverse the judgment of the Court of Appeals. Additionally, we remand this case to the trial court for further fact-finding to determine whether Drielick Trucking and Great Lakes Carriers Corporation (GLC) entered into a leasing agreement for the use of Drielick Trucking’s semi-tractors as contemplated under the policy’s clause related to a leased covered vehicle. I. FACTS AND PROCEDURAL HISTORY Roger Drielick owns Drielick Trucking, a commercial trucking company. It seems that throughout most of the year in 1995, Drielick Trucking leased its semi-tractors to Sargent Trucking (Sargent). Around October 1995, Roger orally terminated the lease agreement with Sargent and began doing business with Bill Bateson, one of the operators of GLC, the other being his wife at the time, Jamie Bateson. On January 12, 1996, Bill Bateson dispatched Corey Drielick, a truck driver employed by Drielick Trucking, to pick up and deliver a trailer of goods stored on GLC’s property. While driving the semi-tractor without an attached trailer, Corey picked up his girlfriend and proceeded to GLC’s truck yard. When he was less than two miles away from the yard, Corey was involved in a multivehicle accident. Eugene Hunt died, and Noreen Luczak and Brandon Huber were seriously injured. Marie Hunt (on behalf of her deceased husband), Thomas and Noreen Luczak, and Huber filed suits against Corey and Roger Drielick, Drielick Trucking, Sargent, and GLC. Empire, which insured Drielick Trucking’s semi-tractors under a non-trucking-use, or bobtail, policy, denied coverage and refused to defend under the policy’s business-use and named-driver exclusions. Plaintiffs settled with Sargent and GLC. Plaintiffs later entered into consent judgments with the Drielicks and Drielick Trucking. The parties also entered into an “Assignment, Trust, and Indemnification Agreement,” wherein they agreed that Roger Drielick would assign the rights under the insurance policy with Empire to plaintiffs, Sargent, and GLC. Sargent and GLC agreed to help plaintiffs’ collection efforts from Empire in exchange for a portion of any proceeds received from Empire. Sargent and GLC filed writs of garnishment against Empire. In response, Empire filed a motion to quash, arguing again that the policy exclusions apply, among other things. The trial court denied Empire’s motion and entered an order to execute the consent judgments, reasoning that the business-use exclusion does not apply and the named-driver exclusion is invalid under MCL 500.3009(2). The Court of Appeals affirmed the trial court’s ruling regarding the named-driver exclusion but reversed the trial court’s ruling regarding the business-use exclusion, holding that further factual determinations were necessary because the fact that the semi-tractor “was traveling bobtail at the time of the accident, creat[ed] a question of fact whether the truck was being used for a business purpose at that time.” Hunt v Drielick, unpublished opinion per curiam of the Court of Appeals, issued October 5, 2004 (Docket Nos. 246366, 246367, and 246368), p 5. The Court mentioned that the policy exclusions are clear but “whether this accident was a covered event is not,” explaining that Roger Drielick orally revoked his lease with Sargent, and, contrary to federal regulations, there was no written lease with GLC. Id. On remand, the trial court concluded that, “even if there was a lease between Drielick and [GLC],” the business-use exclusion does not preclude coverage. On appeal, the Court of Appeals reversed, holding that the first clause of the business-use exclusion — precluding coverage if injury or damage occurred “while a covered ‘auto’ is used to carry property in any business” — applies, despite the fact that the truck was not actually carrying property at the moment of the accident. Hunt, 298 Mich App at 555-557, citing Carriers Ins Co v Griffie, 357 F Supp 441, 442 (WD Pa, 1973). Plaintiffs sought leave to appeal, which this Court granted. II. STANDARD OF REVIEW This case involves the interpretation and application of an insurance policy, which is a question of law reviewed de novo. Cohen v Auto Club Ins Ass’n, 463 Mich 525, 528; 620 NW2d 840 (2001). III. ANALYSIS An insurance policy is similar to any other contractual agreement, and, thus, the court’s role is to “determine what the agreement was and effectuate the intent of the parties.” Auto-Owners Ins Co v Churchman, 440 Mich 560, 566; 489 NW2d 431 (1992). “[W]e employ a two-part analysis” to determine the parties’ intent. Heniser v Frankenmuth Mut Ins Co, 449 Mich 155, 172; 534 NW2d 502 (1995). First, it must be determined whether “the policy provides coverage to the insured,” and, second, the court must “ascertain whether that coverage is negated by an exclusion.” Id. (citation and quotation marks omitted). While “[i]t is the insured’s burden to establish that his claim falls within the terms of the policy,” id., “[t]he insurer should bear the burden of proving an absence of coverage,” Fresard v Mich Millers Mut Ins Co, 414 Mich 686, 694; 327 NW2d 286 (1982) (opinion by FITZGERALD, C.J.). See, also, Ramon v Farm Bureau Ins Co, 184 Mich App 54, 61; 457 NW2d 90 (1990). Additionally, “[e]xclusionary clauses in insurance policies are strictly construed in favor of the insured.” Churchman, 440 Mich at 567. See, also, Group Ins Co of Mich v Czopek, 440 Mich 590, 597; 489 NW2d 444 (1992) (stating that “the exclusions to the general liability in a policy of insurance are to be strictly construed against the insurer”). However, “[i]t is impossible to hold an insurance company liable for a risk it did not assume,” Churchman, 440 Mich at 567, and, thus, “[c]lear and specific exclusions must be enforced,” Czopek, 440 Mich at 597. A. THE POLICY At issue is the proper interpretation of the bobtail insurance policy. “ ‘Bob-tail’ in trucking parlance is the operation of a tractor without an attached trailer,” and “[f]or insurance purposes, ... it typically means coverage ‘only when the tractor is being used without a trailer or with an empty trailer, and is not being operated in the business of an authorized carrier.’ ” Prestige Cas Co v Mich Mut Ins Co, 99 F3d 1340, 1343 (CA 6, 1996) (citations omitted). The relevant portions of the bobtail insurance policy in this case state: A. COVERAGE: We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from ownership, maintenance or use of a covered auto .... B. EXCLUSIONS: This insurance does not apply to any of the following: 13. BUSINESS USE: “Bodily injury” or “property damage” while a covered “auto” is used to carry property in any business or while a covered “auto” is used in the business of anyone to whom the “auto” is leased or rented. B. THE BUSINESS-USE EXCLUSION Because the parties agree that the policy provided coverage at the time of the accident, we must decide whether the business-use exclusion applies to preclude coverage. Churchman, 440 Mich at 567 (stating that “coverage under a policy is lost if any exclusion within the policy applies to an insured’s particular claims”). The business-use exclusion includes two separate clauses that could apply to a covered vehicle that may prevent Empire’s liability under the policy. Specifically, the policy does not apply “[1] while a covered ‘auto’ is used to carry property in any business or [2] while a covered ‘auto’ is used in the business of anyone to whom the ‘auto’ is leased or rented.” Mich Pub Serv Co v City of Cheboygan, 324 Mich 309, 341; 37 NW2d 116 (1949) (stating that the word “or” is used as “used to indicate a disunion, a separation, an alternative”). See, also, GC Timmis & Co v Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003) (stating that words and clauses must be read in context of the preceding and following words and phrases). 1. THE FIRST CLAUSE The business-use exclusion’s first clause states that there is no coverage under the policy “while a covered ‘auto’ is used to carry property in any business.” Considering the commonly used meaning of the undefined terms of the clause to ascertain the contracting parties’ intent, Czopek, 440 Mich at 596, the word “while” means “[a]s long as; during the time that,” The American Heritage Dictionary of the English Language (1981). Further, “use” is defined as “ ‘to employ for some purpose; put into service[.]’ ” Hunt, 298 Mich App at 556, quoting Random House Webster’s College Dictionary (2001). See, also, The American Heritage Dictionary of the English Language (1981) (defining “employ” as “[t]o engage in the services of; to put to work”). Finally, “carry” is defined as “1. To bear or convey from one place to another; transport.... 3. To serve as a means for the conveyance or transmission of.... 4. To hold or bear while moving. . . .” Id. Applying these definitions, the clause makes clear that there is no coverage when the accident occurs during the time that the semi-tractor is engaged in conveying property from one place to another in any business. More specifically, we conclude that coverage under the first clause is precluded only during the time that a semi-tractor is physically attached to property and the property is carried in a business. “[W]e must enforce the language of this contract as it is written.” Czopek, 440 Mich 596-597. It follows that the parties intended the phrase “carry property” to mean just that— coverage can only be precluded during the time that the semi-tractor is used to actually transport property in a business. (Emphasis added.) See generally Prestige, 99 F3d at 1343 (explaining that bobtail policies typically provide coverage “when the tractor is being used without a trailer”) (emphasis added). Similarly, we must give meaning to all terms of the contract in order to effectuate the parties’ intent. Churchman, 440 Mich at 566. If the parties had intended to preclude coverage irrespective of whether property was actually attached to the semi-tractor at the time of the accident, there would have been no need to include the phrase “carry property” in the clause. The Court of Appeals’ analysis, which reached the opposite conclusion, highlights this point. The Court of Appeals held that the property does not have to be attached to the semi-tractor at the time of the accident for the clause to apply; rather, the Court held that the clause applies “during an interval of time when the truck was employed for the purpose of carrying property in the trucking business.” Hunt, 298 Mich App at 556 (emphasis added). The Court of Appeals reasoned that its conclusion is compelled by the definition of the phrase “is used” in the clause. Hunt, 298 Mich App at 557 (explaining that to interpret the clause to require that the property must be attached in order for the clause to apply would “disregard the word ‘while’ or the phrase ‘is used’ ”). However, the Court of Appeals erred by placing too great an emphasis on the definition of the phrase “is used,” while overlooking the import of the phrase “carry property.” In the commercial-trucking industry, semi-tractors are intended and designed precisely to carry property and, therefore, would always be used “for the purpose of carrying property,” id. at 556, when used in any business. Thus, under the Court of Appeals’ broad interpretation, the clause is essentially defined by whether a semi-tractor is driven in the business of carrying property. If the parties had intended that the clause’s scope be defined solely by whether the semi-tractor was driven in a business, the policy could have simply stated that there is no coverage “while the covered auto is used in any business.” As previously mentioned, in order to give the phrase “carry property” meaning, Churchman, 440 Mich at 567, we conclude that the clause was intended to more narrowly preclude coverage during the time that the semi-tractor is physically carrying attached property in a business. See, also, id. (stating that exclusionary clauses in insurance contracts are strictly construed). Notably, like the first clause, the scope of the business-use exclusion’s second clause is in part defined by whether the semi-tractor is used in a business, but the parties chose not to further qualify the second clause with the phrase “cany property.” Accordingly, our interpretation of the first clause does not disregard the phrase “is used” but, rather, appreciates the intended meaning of that phrase and the phrase “carry property.” In concluding that the first clause does not require the semi-tractor to actually be carrying property at the time of the accident, the Court of Appeals relied on Griffie, 357 F Supp at 442, which interpreted a similar exclusionary clause under a bobtail insurance policy and stated, in dicta, that the clause applied to preclude coverage because “[t]he mere fact that no cargo was being handled at the particular moment when the accident occurred does not mean that the equipment was not ‘used to carry property in any business.’ ” Griffie reasoned that the equipment “was regularly so used to carry property in the carrier’s business”; thus, “[i]f the intent had been to extend coverage except when the equipment was actually hauling a load, it would not have been difficult to express such an intention clearly.” Id. at 442. Griffie, like the Court of Appeals in this case, conflated whether the policy’s clause requires that a semi-tractor be physically carrying attached property at the time of the accident with the additional requirement that the property also be carried “in any business.” The question is not whether the semi-tractor itself was used in a business for the purpose of carrying property at the time of the accident; rather, the question is whether the accident occurred while the semi-tractor is actually carrying property in any business. Notably, decades after Griffie was decided, Conn Indemnity Co v Stringfellow, 956 F Supp 553, 557 (MD Pa, 1997), considered an exclusionary clause that was practically identical to the clause at issue and expressly disagreed with Griffie. Stringfellow explained that “if the covered vehicle or vehicles are not being used to carry property, the exclusion does not apply and cannot be relied upon to deny coverage.” Id. at 558 (emphasis added). Stringfellow also concluded that Griffie “significant[ly] altered] . . . the actual language” of the exclusion. Id. In this case, it is undisputed that at the time of the accident, the semi-tractor was driven without attached property. Accordingly, in light of our conclusion that the business-use exclusion’s first clause precludes coverage as long as the covered vehicle is carrying attached property in any business, we hold that the first clause does not preclude coverage in this case. 2. THE SECOND CLAUSE Because we hold that the first clause of the business-use exclusion does not preclude coverage, it is necessary to determine whether the second clause does. After considering the record in light of the trial court’s prior factual findings, we conclude that this case requires that the trial court make further findings of fact. It is clear that Drielick Trucking and the Batesons did not enter a written lease regarding the use of Drielick Trucking’s semi-tractors, contrary to federal regulations.* *** Because Drielick Trucking’s and the Bate-sons’ business relationship was in direct contravention of applicable federal regulations, our order granting leave to appeal focused primarily on the potential lease agreement and whether the Court of Appeals should have, instead, resolved this case under the policy’s leasing clause. Apparently considering that clause, the trial court previously explained that the parties had agreed that there are no material issues of fact in dispute; however, that does not appear to be the case. Bill and Jamie Bateson operated Great Lakes Logistics & Services (GLLS), in addition to the carrier company, GLC. GLLS was a brokerage company that connected semi-tractor owners, such as Roger Drielick, with carriers that are federally authorized to transport goods interstate, such as GLC. The parties dispute whether Bill Bateson dispatched Corey under GLC’s authority or merely brokered the deal under GLLS’s authority. Furthermore, the trial court considered the parties’ “verbal agreement and course of conduct,” concluding that the payment terms and the fact that Corey was not bound by a strict pick-up deadline meant that the business relationship was not triggered until Corey actually picked up for delivery the trailer of goods. Yet it remains uncertain whether the parties entered into a leasing agreement as contemplated by the terms of the insurance policy. Barring GLLS’s alleged involvement, an oral arrangement or course of conduct might have existed between GLC and Drielick Trucking, but whether that agreement constituted a lease for the purposes of the policy is a threshold factual determination that has not yet been fully considered. Accordingly, we direct the trial court on remand to consider the parties’ agreement to decide whether there was, in fact, a leasing agreement between Drielick Trucking and GLC as contemplated by the business-use exclusion’s leasing clause. If so, the precise terms of that agreement must be determined, and the trial court should reconsider whether Corey was acting in furtherance of a particular term of the leasing agreement at the time of the accident. IV CONCLUSION We hold that the first clause of the business-use exclusion precluding coverage “while a covered ‘auto’ is used to carry property in any business” is properly construed as excluding coverage with respect to a semi-tractor only when the accident occurs during the time that property is attached to the semi-tractor that is used in any business. Accordingly, we reverse the judgment of the Court of Appeals. Given that coverage is not precluded under the business-use exclusion’s first clause, it is necessary to determine whether coverage is nonetheless precluded under the second clause of the exclusion relating to a leased covered vehicle. In that regard, we remand this case for the trial court to make further factual determinations consistent with our analysis and consider whether the second clause precludes coverage in light of the trial court’s additional findings of fact. We do not retain jurisdiction. Young, C.J., and Maekman, Kelly, Zahra, McCormack, and VIVIANO, JJ., concurred with CAVANAGH, J. This case involves a semi-tractor driven “bobtail,” which means without an attached trailer, as opposed to a semi-tractor driven with an attached trailer that is empty. See Prestige Cas Co v Mich Mut Ins Co, 99 F3d 1340, 1343 (CA 6, 1996) (defining “bobtail”), and Zurich Ins Co v Rombough, 384 Mich 228, 230; 180 NW2d 775 (1970), citing Ayers v Kidney, 333 F2d 812, 813 (CA 6,1964) (noting that driving a semi-tractor with an attached, but empty, trailer is termed “deadheading”). MCL 500.3009(2) states: If authorized hy the insured, automobile liability or motor vehicle liability coverage may be excluded when a vehicle is operated by a named person. Such exclusion shah not he valid unless the following notice is on the face of the policy or the declaration page or certificate of the policy and on the certificate of insurance: Warning — when a named excluded person operates a vehicle all liability coverage is void — no one is insured. Owners of the vehicle and others legally responsible for the acts of the named excluded person remain fully personally liable. See 49 CFR 376.11; 49 CFR 376.12. As used in the policy, “auto” is defined as “a land motor vehicle, trailer, or semitrailer designed for travel on public roads but does not include ‘mobile equipment.’ ” References throughout this opinion to coverage will be to either “auto” or “vehicle.” We asked the parties to address the following: (1) whether a lease agreement is legally implied between Roger Drielick Tracking and Great Lakes Carriers Corporation under the facts of the case and under applicable federal regulation of the motor carrier industry; and (2) if so, whether the Court of Appeals erred in resolving this case on the basis of the first clause of the business use exclusion in the non-tracking (bobtail) policy issued by Empire Fire and Marine Insurance Company, instead of on the basis of the second clause, which excludes coverage for “ ‘[b]odily injury’ or ‘property damage’... while a covered ‘auto’ is used in the business of anyone to whom the ‘auto’ is leased or rented.” [Hunt v Drielick, 495 Mich 857 (2013).] The parties do not dispute that Drielick Trucking’s semi-tractor involved in the accident falls under the policy’s coverage provision. That is, they do not dispute whether the semi-tractor at issue was a covered “auto,” which, as we have noted, is defined by the policy as “a land motor vehicle, trailer, or semitrailer designed for travel on public roads hut does not include ‘mobile equipment.’ ” The Court of Appeals attempted to factually distinguish Stringfellow, however, its reasoning stemmed from conflating whether the semi-tractor was, in fact, carrying property with whether the carrying of property was in furtherance of a business purpose. See Hunt, 298 Mich App at 556 n 5 (explaining that “in Stringfellow, the driver was not under any order to pick up or drop off property, nor was he engaged in any sort of inspection as was the driver in Griffie”). Specifically, 49 CFR 376.11 and 49 CFR 376.12 require that if a semi-tractor owner leases its equipment to a carrier, a written lease agreement must be executed. See Transamerican Freight Lines, Inc v Brada Miller Freight Sys, Inc, 423 US 28, 36-37; 96 S Ct 229; 46 L Ed 2d 169 (1975) (explaining that the federal regulations mandate that the “lessee must assume the responsibility for the shipment and have full authority to control it,” and, to that end, the regulations require a written lease agreement, which helps in “fixing of the lessee’s responsibility”) (citation omitted). However, the fact that no written lease was entered into in this case does not preclude the trial court on remand from concluding that a lease was in fact entered into. See Wilson v Riley Whittle, Inc, 145 Ariz 317, 321; 701 P2d 575 (Ariz App, 1984) (explaining that “the absence of a written trip lease is legally irrelevant”).
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MARKMAN, J. This Court granted leave to appeal to consider whether the rule announced in People v Bender, 452 Mich 594; 551 NW2d 71 (1996), should be maintained. Bender requires police officers to promptly inform a suspect facing custodial interrogation that an attorney is available when that attorney attempts to contact the suspect. If the officers fail to do so, any statements made by the suspect, including voluntary statements given by the suspect with full knowledge of his Miranda rights, are rendered inadmissible. Because there is nothing in this state’s Constitution to support that rule, we respectfully conclude that Bender was wrongly decided and that it must be overruled. We therefore reverse the trial court’s suppression of certain incriminating statements made by defendant, which suppression was justified solely on the grounds of Bender, and remand to the trial court for further proceedings consistent with this opinion. I. FACTS Defendant George Tanner was arrested for murder and taken to jail on October 17, 2011. He was read his Miranda rights, and when police officers attempted to interview defendant at the jail, he invoked his right to counsel. As a result, the officers informed defendant that he would have to reinitiate contact if he subsequently changed his mind and wished to speak to them. The next day, while a psychologist employed by the jail to interview inmates was speaking with defendant, he said that he wanted to “get something off his chest.” The psychologist told defendant that he should not further discuss the case with her, that he might wish to speak to an attorney, and that she could make arrangements for him to speak to the police officers. Defendant again stated that he wanted to “get things off his chest,” so the psychologist told defendant that she would inform jail staff of his request. She then contacted the jail administrator and informed him that defendant wished to speak to police officers about his case. The administrator spoke with defendant, told him that the psychologist had indicated that he wanted to “get something off his chest,” and inquired whether he still wished to speak to someone about his case. Defendant replied “yes” and asked if the administrator could obtain an attorney for him. The administrator responded that he could not, because this was not his role, but explained that he could contact the police officers who were handling the case. Defendant replied that this would be fine, and the administrator contacted the officers. The administrator also called the prosecutor, who advised him that the court would appoint an attorney for defendant should he request one. The prosecutor apparently informed the court of defendant’s request, as a result of which an attorney was sent to the jail. One of the police officers testified that he was contacted by the administrator and apprised that defendant might now be amenable to speaking with the officers. The police officer further testified that he confirmed with the administrator that defendant had not requested that an attorney be present during the interview, and that the administrator believed an attorney had been appointed merely as a contingency in the event defendant sought an attorney during the interview. Subsequently, both the police officers and an attorney appeared at the jail. Apparently unsure of his role, the attorney asked the officers and the administrator if they knew why he was there. The administrator responded and told him to wait in the jail lobby while he took the officers back to speak with defendant and determine his intentions. Defendant was again read his Miranda rights, which he waived this time without requesting an attorney and without being made aware of the attorney’s presence. The administrator then instructed the attorney that he could leave. Defendant shortly thereafter made incriminating statements concerning his involvement in the murder. He was eventually charged with open murder, MCL 750.316, and mutilation of a dead body, MCL 750.160. Defendant was bound over to circuit court following a preliminary examination. During this process, defense counsel filed a motion to suppress defendant’s statement to the police, alleging that because he had not been informed that an attorney had been appointed for him before his interrogation, his Miranda waiver was invalid under this Court’s decision in Bender. A hearing was held on October 12, 2011, after which the trial court suppressed defendant’s statement. The court determined that defendant had requested an attorney at his October 17, 2011 interrogation, but that he had affirmatively reinitiated contact with police officers on October 18, 2011, without reasserting his right to counsel. However, it also determined that defendant’s statement required suppression under Bender, because the police officers had failed to inform him that an attorney was present at the jail and had established contact with the officers. The prosecutor filed an application for leave to appeal in the Court of Appeals, which was denied for lack of merit, and he then filed an application for leave to appeal in this Court, requesting that Bender be reconsidered. We granted this application, People v Tanner, 493 Mich 958 (2013), and heard oral argument on this case on November 6, 2013. II. STANDARD OF REVIEW This court “review[s] a trial court’s factual findings in a ruling on a motion to suppress for clear error. To the extent that a trial court’s ruling on a motion to suppress involves an interpretation of the law or the application of a constitutional standard to uncontested facts, our review is de novo.” People v Attebury, 463 Mich 662, 668; 624 NW2d 912 (2001). III. BACKGROUND The Fifth Amendment of the United States Constitution provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” US Const, Am V See also Const 1963, art 1, § 17 (containing an identical Self-Incrimination Clause). This federal constitutional guarantee was made applicable to the states through the Fourteenth Amendment. Malloy v Hogan, 378 US 1, 3; 84 S Ct 1489; 12 L Ed 2d 653 (1964). Prior to 1966, a suspect’s confession was constitutionally admissible if a court determined that it was made “voluntarily.” Despite the apparent textual emphasis on the voluntariness of a suspect’s confession (“no person shall be compelled”), the United States Supreme Court held in Miranda v Arizona, 384 US 436, 444-445, 477-479; 86 S Ct 1602; 16 L Ed 2d 694 (1966), that the accused must be given a series of warnings before being subjected to “custodial interrogation” in order to protect his constitutional privilege against self-incrimination. The right to have counsel present during custodial interrogation is, in the words of the United States Supreme Court, a corollary of the right against compelled self-incrimination, because the presence of counsel at this stage affords a way to “insure that statements made in the government-established atmosphere are not the product of compulsion.” Id. at 466. See also id. at 470. If a suspect is not afforded Miranda warnings before custodial interrogation, “no evidence obtained as a result of interrogation can be used against him.” Id. at 479 (citations omitted). Once a suspect invokes his right to remain silent or requests counsel, police questioning must cease unless the suspect affirmatively reinitiates contact. Id. at 473-474. In Edwards v Arizona, 451 US 477, 484-485; 101 S Ct 1880; 68 L Ed 2d 378 (1981) (citations omitted), the United States Supreme Court created “additional safeguards” for when the accused invokes his right to have counsel present during custodial interrogation: [W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. ... [H]aving expressed his desire to deal with the police only through counsel, [an accused] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. However, when a suspect has been afforded Miranda warnings and affirmatively waives his Miranda rights, subsequent incriminating statements may be used against him. Miranda, 384 US at 444, 479. A suspect’s waiver of his Miranda rights must be made “voluntarily, knowingly, and intelligently.” Id. at 444. The United States Supreme Court has articulated a two-part inquiry to determine whether a waiver is valid: First, the relinquishment of the right must have been “voluntary,” in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Moran v Burbine, 475 US 412, 421; 106 S Ct 1135; 89 L Ed 2d 410 (1986), citing Fare v Michael C, 442 US 707; 99 S Ct 2560; 61 L Ed 2d 197 (1979).] Under the Fifth Amendment construct set forth by the United States Supreme Court, the defendant in the instant case was afforded his Miranda rights by the police and invoked his right to counsel on October 17, 2011. Defendant then reinitiated contact with the police the next day when he indicated that he wanted to “get something off his chest” and speak with the officers. He was then afforded his Miranda rights a second time, and on this occasion waived those rights and chose not to reassert his right to counsel. During the following custodial interrogation by the police officers, defendant made an incriminating statement concerning his involvement in a murder. The only pertinent question then is whether defendant’s lack of awareness of the appointed attorney’s presence at the jail at the time of his Miranda waiver following his reinitiation of contact with the police calls into question the validity of that waiver, including the waiver of his right to counsel— rendering it something other than “voluntary, knowing, and intelligent” — and thus requires suppression of any subsequent incriminating statements. A. MORAN v BURBINE The United States Supreme Court has addressed this question for purposes of the federal criminal justice system in Moran v Burbine, 475 US 412; 106 S Ct 1135; 89 L Ed 2d 410 (1986), in which it held that the failure of police to inform a suspect of the efforts of an attorney to reach that suspect does not deprive the suspect of his right to counsel or otherwise invalidate the waiver of his Miranda rights. In Moran, the defendant confessed to the murder of a young woman after he had been informed of, and waived, his Miranda rights. While the defendant was in custody, his sister retained an attorney to represent him. The attorney then contacted the police and was assured that all questioning would cease until the next day. However, less than an hour later, the police resumed interrogation of the defendant, and he confessed soon thereafter. At no point during the interrogation did the defendant request an attorney, and at no point did the police inform him that an attorney had contacted them. Before trial, the defendant moved to suppress his confession on the basis that “the police’s failure to inform him of the attorney’s telephone call deprived him of information essential to his ability to knowingly waive his Fifth Amendment rights.” Id. at 421. However, the trial court denied the defendant’s motion, concluding that he had received Miranda warn ings, and had “knowingly, intelligently, and voluntarily waived his privilege against self-incrimination [and] his right to counsel.” Id. at 418. The defendant was subsequently convicted of murder. The Rhode Island Supreme Court affirmed his conviction, and the federal district court denied his habeas corpus petition. The federal appellate court, however, reversed the conviction. On further appeal, the United States Supreme Court reinstated the defendant’s conviction, asserting as follows: Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. Under the analysis of the Court of Appeals, the same defendant, armed with the same information and confronted with precisely the same police conduct, would have knowingly waived his Miranda rights had a lawyer not telephoned the police station to inquire about his status. Nothing in any of our waiver decisions or in our understanding of the essential components of a valid waiver requires so incongruous a result. No doubt the additional information would have been useful to respondent; perhaps even it might have affected his decision to confess. But we have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights. Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intentions to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law. [Id. at 422-423 (citations omitted).] Any culpability on the part of the police inherent in their failing to inform the defendant of the attorney’s availability had no bearing on the validity of his Miranda waiver: [Wjhether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of [the defendant’s] election to abandon his rights. Although highly inappropriate, even deliberate deception of an attorney could not possibly affect a suspect’s decision to waive his Miranda rights unless he were at least aware of the incident. ... Granting that the “deliberate or reckless” withholding of information is objectionable as a matter of ethics, such conduct is only relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. Because respondent’s voluntary decision to speak was made with full awareness and comprehension of all the information Miranda requires the police to convey, the waivers were valid. [Id. at 423-424 (citations omitted).] A rule requiring a suspect to be kept apprised of an attorney’s presence in order for his Miranda waiver to be valid would unsettle Miranda's balance between protection of a suspect’s Fifth Amendment rights and the maintenance of effective and legitimate law enforcement practices: Because, as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process, a rule requiring the police to inform the suspect of an attorney’s efforts to contact him contribute to the protection of the Fifth Amendment privilege only incidentally, if at all. This minimal benefit, however, would come at a substantial cost to society’s legitimate and substantial interest in securing admissions of guilt. [Id. at 427.] Moran concluded that “nothing disables the States from adopting different requirements of the conduct of its employees and officials as a matter of state law.” Id. at 428. B. PEOPLE v BENDER This Court reached a different conclusion from that of Moran in Bender, 452 Mich 594 (1996), holding that for a suspect’s Miranda waiver to be made “knowingly and intelligently,” police officers must promptly inform a suspect that an attorney is available when that attorney has made contact with them. In Bender, two defendants, Jamieson Bender and Scott Zeigler, were arrested for a series of thefts and taken into custody. An officer informed Bender’s mother of his arrest. Subsequently, Bender’s father called an attorney, who agreed to represent his son. When the attorney called the police and sought to speak with Bender, she was not permitted to do so. Defendant Ziegler’s mother called an attorney, who instructed her go to the police station and tell her son not to speak with anyone before speaking with the attorney. Police also did not allow Ziegler’s mother to see her son and communicate the attorney’s message. Without informing the defendants of their attorneys’ efforts to contact them, police read the defendants their Miranda rights, defendants waived these rights, and each offered incriminating statements concerning their involvement in the thefts. At no point did the defendants request an attorney or assert their rights either to remain silent or to have counsel. This Court adopted a per se rule that a suspect who has an attorney waiting in the wings does not make a “knowing and intelligent” waiver of his Miranda rights when the police have failed to inform him that an attorney has been made available to him and is at his disposal. Id. at 620 (opinion by CAVANAGH, J.). See also id. at 621 (opinion by BRICKLEY, C.J.). Although Justices LEVIN and MALLETT concurred with Justice CAVANAGH’s lead opinion grounding the rule in Michigan’s 1963 Constitution, the Court’s holding was not ultimately grounded upon constitutional principles. Rather, Chief Justice BRICKLEY concurred with the result reached in the lead opinion, but declined to rely upon its interpretation of the Constitution, instead declaring that the requirement that an accused must be informed of an attorney’s efforts to contact him constituted, as did Miranda itself at the time, a “prophylactic,” or precautionary, rule. Id. at 620-621 (opinion by BRICKLEY, C.J.). Justices CAVANAGH, LEVIN, and MALLETT also joined Chief Justice BRICKLEY’s concurrence, making it the operative opinion in the case. Justice BOYLE, joined by Justices Riley and Weaver, dissented. Although it did not provide the operative holding, the lead opinion grounded its reasoning upon independent state constitutional grounds, concluding, “we hold that, on the basis of Const 1963, art 1, § 17, neither defendant Bender nor defendant Zeigler made a knowing and intelligent waiver of his rights to remain silent and to counsel, because the police failed to so inform them [that attorneys had been retained and sought to contact them] before they confessed.” Id. at 614 (opinion by CAVANAGH, J.). Holding otherwise would “encourage the police to do everything possible, short of a due process violation, to prevent an attorney from contacting his client before or during interrogation.” Id. at 615. To further sustain its conclusion, the lead opinion also noted that this Court has held that “the Michigan Constitution imposes a stricter requirement for a valid waiver of the rights to remain silent and to counsel than those imposed by the federal constitution.” Id. at 611, citing People v Wright, 441 Mich 140, 147; 490 NW2d 351 (1992). The lead opinion declined to adopt a “totality-of-the-circumstances test,” because the “inherently coercive nature of incommunicado interrogation requires a per se rule that can be implemented with ease and practicality to protect a suspect’s rights to remain silent and to counsel.” Bender, 452 Mich at 617 (opinion by CAVANAGH, J.). In Chief Justice BRICKLEY’s “majority opinion,” he stated that [t]his case rather clearly implicated both the right to counsel (Const 1963, art 1, § 20) and the right against self-incrimination (Const 1963, art 1, § 17). I conclude that rather than interpreting these provisions, it would be more appropriate to approach the law enforcement practices that are at the core of this case in the same manner as the United States Supreme Court approached the constitutional interpretation task in Miranda v Arizona; namely, by announcing a prophylactic rule. The right to counsel and the right to be free of compulsory self-incrimination are part of the bedrock of constitutional civil liberties that have been zealously protected and in some cases expanded over the years. Given the focus and protection that these particular constitutional provisions have received, it is difficult to accept and constitutionally justify a rule of law that accepts that law enforcement investigators, as part of a custodial interrogation, can conceal from suspects that counsel has been made available to them and is at their disposal. If it is deemed to be important that the accused be informed that he is entitled to counsel, it is certainly important that he be informed that he has counsel. [Id. at 620-621 (opinion by BRICKLEY, C.J.) (citations omitted).] Thus, the majority opinion, although referring to Michigan’s Constitution for its “implications,” declined nonetheless to interpret its provisions. Rather, it concluded that “we invite much mischief if we afford police officers ‘engaged in the often competitive enterprise of ferreting out crime’ the discretion to decide when a suspect can and cannot see an attorney who has been retained for a suspect’s benefit.” Id. at 622, quoting Girodenello v United States, 357 US 480, 486; 78 S Ct 1245; 2 L Ed 2d 1503 (1958). Instead, according to Chief Justice BRICKLEY, Bender’s rule would ensure that the criminal justice system remained accusatorial and not inquisitorial in nature, because the “good will of state agents is often insufficient to guarantee a suspect’s constitutional rights.” Bender, 452 Mich at 623 (opinion by BRICKLEY, C.J.). Justice BOYLE, joined by Justices RILEY and WEAVER, dissented: [W]ithout a single foundation in the language, historical context, or the jurisprudence of this Court, a majority of the Court engrafts its own “enlightened” view of the Constitution of 1963, art 1, § 17, on the citizens of the State of Michigan. With nothing more substantial than a disagreement with the United States Supreme Court as the basis for its conclusion, a majority of the Court ignores our obligation to ñnd a principled basis for the creation of new rights and imposes a benefit on suspects that will eliminate voluntary and knowledgeable confessions from the arsenal of society’s weapons against crime. [Id. at 624 (Boyle, J., dissenting).] According to the dissent in Bender, the guarantee against compelled self-incrimination found in Article 1, § 17 of the Michigan Constitution provides no greater protection than the Fifth Amendment of the United States Constitution, and there is no justification for an interpretation of Michigan’s Constitution that affords protections differently than the federal Constitution. Id. at 628-629. The Bender dissent concluded that [i]n its haste to create a novel “Miranda-like rightf],” a majority of the Court blurs the distinction between the constitutional right to be free from compelled self-incrimination and the safeguards — Miranda warnings — created to protect that right. In effect, a majority of the Court creates prophylactic rules to protect prophylactic rights. The argument seems to be that it is necessary to inform a suspect that an attorney is attempting to contact him, which, in turn, effectuates the suspect’s right to counsel, which, in turn, effectuates a suspect’s right to remain silent, which, in turn, effectuates a suspect’s right to be free from compelled self-incrimination. Safeguards for safeguards is absurd and is not required by the Michigan Constitution, the federal constitution, or Miranda. Given... that neither the Michigan nor the federal constitution require extension of the Miranda litany, the majority’s only possible justification for requiring the police to inform a suspect that an attorney wishes to speak with him must be grounded on policy concerns, not constitutional mandates. But policy concerns also fail under proper analysis. [Id. at 644.] In sum, while Bender concluded that the failure of police officers to inform a suspect of an attorney’s attempts to communicate with the suspect invalidates his Miranda waiver, there was no agreement as to whether Michigan’s Constitution required that rule. IV ANALYSIS The question presently before this Court is whether the rule of Bender should be maintained. The first and most consequential inquiry in resolving this question must, of course, pertain to whether Bender was correctly decided. We conclude that it was not, concurring with the Bender dissent that the lead and majority opinions in that case engaged in an unfounded creation of “constitutional rights,” given that the lead opinion failed to undertake a constitutional analysis sufficient to ground rights in our “organic instrument of state government,” Sitz v Dep’t of State Police, 443 Mich 744, 760; 506 NW2d 209 (1993), and the majority opinion failed even to consider that same “organic instrument,” instead relying on policy concerns and fears of law enforcement “mischief.” A. THE BENDER RULE The Bender majority cited no Michigan law to justify its creation of a state constitutional rule different from the United States Supreme Court’s federal constitutional rule in Moran, ironically citing only several United States Supreme Court decisions at variance with Moran. Nonetheless, Moran rightly acknowledged, as it must, that its decision did not “disableG the States from adopting different requirements for the conduct of its employees and officials as a matter of state law.” Moran, 475 US at 428. However, the Bender majority neither analyzed nor compared and contrasted to its federal counterpart the text of Article 1, § 17; cited no Michigan caselaw contrary to Moran-, and most notably declined to ground its decision upon any interpretation of state constitutional provisions. At the same time nonetheless, the majority clearly sought to characterize its rule as being one of constitutional provenance.* Indeed, two years after Bender, in People v Sexton, 458 Mich 43, 70-72; 580 NW2d 404 (1998), then Justice BRICKLEY explained in his dissenting statement that [w]hile the Bender rule is prophylactic in nature like Miranda, that fact does not detract from its constitutional underpinnings. Its very purpose is to protect a suspect’s right to counsel and the privilege against self-incrimination. To deny the constitutional import of this rule is to ignore the plain language set forth in Bender. [Citation omitted.] Thus, the majority purported to articulate a state constitutional rule in Bender, prophylactic or otherwise, distinct from the federal constitutional rule in Moran, while apparently disclaiming all reliance on state constitutional provisions. B. THE MICHIGAN CONSTITUTION To determine whether Michigan’s Constitution supports Bender, we must construe our Constitution. It is “a fundamental principle of constitutional construction that we determine the intent of the framers of the Constitution and of the people adopting it,” Holland v Heavlin, 299 Mich 465, 470; 300 NW 777 (1941), and we do this principally by examining its language. Bond v Ann Arbor Sch Dist, 383 Mich 693, 699-700; 178 NW2d 484 (1970). And we must do this even in the face of existing decisions of this Court pertaining to the same subject because there is no other judicial body, state or federal, that possesses the authority to correct misinterpretations of the Michigan Constitution. “In interpreting our Constitution, we are not bound by the United States Supreme Court’s interpretation of the United States Constitution, even where the language is identical.” People v Goldston, 470 Mich 523, 534; 682 NW2d 479 (2004) (citation omitted). Rather, “[this Court] must determine what law ‘the people have made.’ ” Id. (citation omitted). “[W]e may not disregard the guarantees that our constitution confers on Michigan citizens merely because the United States Supreme Court has withdrawn or not extended such protection” under the federal Constitution. Sitz, 443 Mich at 759. As explained in Sitz: [T]he courts of this state should reject unprincipled creation of state constitutional rights that exceed their federal counterparts. On the other hand, our courts are not obligated to accept what we deem to be a major contraction of citizen protections under our constitution simply because the United States Supreme Court has chosen to do so. We are obligated to interpret our own organic instrument of government. [Id. at 763.] While members of this Court take an oath to uphold the United States Constitution, we also take an oath to uphold the Michigan Constitution, which is the enduring expression of the will of “we, the people” of this state. In light of these separate oaths of office, we need not, and cannot, defer to the United States Supreme Court in giving meaning to the latter charter. Instead, it is this Court’s obligation to independently examine our state’s Constitution to ascertain the intentions of those in whose name our Constitution was “ordain[ed] and established].” Accordingly, we must examine the text and history of Article 1, § 17, as well as this Court’s precedents pertaining to this provision, in order to ascertain both whether Bender was correctly decided and whether there is persuasive force in the United States Supreme Court’s decision in Moran.* 1***5***** 1. CONSTITUTIONAL TEXT “The primary objective in interpreting a constitutional provision is to determine the text’s original meaning to the ratifiers, the people, at the time of ratification.” Wayne Co v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004). “The first rule a court should follow in ascertaining the meaning of words in a constitution is to give effect to the plain meaning of such words as understood by the people who adopted it.” Bond, 383 Mich at 699. “In applying this principle of construction, the people are understood to have accepted the words employed in a constitutional provision in the sense most obvious to the common understanding and to have ‘ratified the instrument in the belief that that was the sense designed to be conveyed.’ ” People v Nutt, 469 Mich 565, 573-574; 677 NW2d 1 (2004) (citation omitted). The text of Article 1, § 17 of the Michigan Constitution does not, in our judgment, provide for the rights articulated in Bender, when it states in the same words as the Fifth Amendment to the United States Constitution that “no person shall be compelled in any criminal case to be a witness against himself.” Ascertaining the “plain meaning” of “compelled” is of critical importance to our textual analysis, as we must determine precisely what type of protection the ratifiers intended to confer. The 1828 edition of Webster’s American Dictionary of the English Language defined “compel” as “[t]o drive or urge with force, or irresistibly”; “to constrain”; “to oblige”; or “to necessitate, either by physical or moral force.” At the time that our 1963 Constitution was ratified, the term “compel” was commonly defined as “to force by physical necessity or evidential fact”; “to urge irresistibly by moral or social pressure”; “to domineer over so as to force compliance or submission”; or “to obtain by force, violence, or coercion.” Webster’s Third New International Dictionary (1961). Thus, at the time of the ratification of Article 1, § 17, the word “compel” referred to the use of coercion, violence, force, or pressure, all of which are relevant factors in assessing the genuine voluntariness of a confession. The remainder of the terms contained in Article 1, §17 require no individual examination, as their plain meanings appear “obvious to the common understanding.” Accordingly, applying the definition of “compel” to the remainder of the language of Article 1, § 17, we find that the compelled self-incrimination provision in its entirety can be understood to provide that “no person shall be [coerced, forced, or pressured] in any criminal case to be a witness against himself.” Given the provision’s focus on a coercive custodial environment, Article 1, § 17 can be reasonably understood to protect a suspect from the use of his involuntary incriminating statements as evidence against him in a criminal case. Consequently, the text of Article 1, § 17 does not support Bender, which pertains not to the voluntariness of the confession itself, but to whether a suspect’s Miranda waiver has been made “knowingly.” That is, there was no dispute in Bender as to the voluntariness of the defendant’s confession, only as to whether his Miranda waiver could be made “knowingly” absent awareness of an attorney’s efforts to contact him; the coercion or pressure contemplated by the text of Article 1, § 17, which relates to the voluntariness of a confession, was not implicated. 2. CONSTITUTIONAL CONVENTION When interpreting a constitutional provision, “Regard must also be given to the circumstances leading to the adoption of the provision and the purpose sought to be accomplished.” People v Nash, 418 Mich 196, 209; 341 NW2d 439 (1983) (citation omitted). In determining the meaning of particular constitutional provisions to the ratifiers of the Constitution, this Court has noted that “constitutional convention debates and the address to the people, though not controlling, are relevant.” Id. (citation omitted). The primary focus should be on “any statements [the delegates] may have made that would have shed light on why they chose to employ the particular terms they used in drafting the provision to aid in discerning what the common understanding of those terms would have been when the provision was ratified by the people.” Studier v Mich Pub Sch Employees’ Retirement Bd, 472 Mich 642, 656-657; 698 NW2d 350 (2005) (citation omitted). However, the records pertaining to Article 1, § 17 provide few such clues. There appears to have been no debate on the provision when it was first incorporated. When the Constitution was ratified in 1908, the Self-Incrimination Clause remained unchanged from the 1850 version, and the accompanying Address to the People in 1908 stated simply, “[n]o change from Sec. 32, Art. VI of the present constitution.” Journal of the Constitutional Convention 1907-1908, p 1542. Although Article 1, § 17 was ratified in 1963, the only change was the addition of language that had no bearing on the Self-Incrimination Clause, and it was only the new language that was the subject of any convention debate or explication. 1 Official Record, Constitutional Convention 1961, pp 545-553; 2 Official Record, Constitutional Convention 1961, p 3364. We find nothing in the records of the constitutional conventions to suggest that Article 1, § 17 means anything different from what its text most reasonably expresses. 3. CONSTITUTIONAL CASELAW Although the text of Article 1, § 17 has mirrored its federal counterpart since its incorporation, the conclusion does not follow that this Court has interpreted the provision identically to the United States Supreme Court’s interpretation of the Fifth Amendment. Consequently, it is necessary to examine this Court’s precedent to determine whether caselaw in any way supports or contradicts Bender. Before Bender, this Court had previously addressed the effect of an attorney’s attempts to contact a suspect on the admissibility of the suspect’s confession in People v Cavanaugh, 246 Mich 680; 225 NW 501 (1929), and People v Wright, 441 Mich 140; 490 NW2d 351 (1992), the latter cited in Bender and both cited by defendant in this case. However, neither opinion provides the foundation for Bender’s proposition that Michigan courts have historically interpreted Michigan’s compulsory self-incrimination provision to provide criminal suspects with greater protections than those afforded by the Fifth Amendment. In Cavanaugh, the juvenile defendant was sentenced to prison for life for committing a rape in light of evidence that the victim identified his voice and given his alleged confession of guilt. The defendant testified at trial that the police had questioned him at night, that he had not been permitted to sleep, and that he asked for and was denied an attorney. An attorney who had been retained by the defendant’s father came to the police station, but was refused access to the defendant until the attorney proceeded to the courthouse to obtain a writ of habeas corpus. It is unclear if the defendant was aware of the attorney’s presence, but in any event, he admitted to committing the crime. At trial, the defendant repudiated this confession, claiming it had been extorted by duress, brow-beating, intimidation, and by holding him incommunicado. The lower court sustained the prosecutor’s objection to the defendant’s proposed testimony regarding the circumstances surrounding his confession and did not permit the defendant to introduce evidence pertaining to his claim that police officers had held him incommunicado. On appeal, this Court reversed the defendant’s conviction and remanded for a new trial, concluding that the “[djefendant had an undoubted right to lay before the jury his full claim of what the police said to him, and it was for the jury to say whether, under all the circumstances, the confession was voluntary.” Cavanaugh, 246 Mich at 686. This Court continued: [A] confession, extorted by mental disquietude, induced by unlawfully holding an accused incommunicable, is condemned by every principle of fairness, has all the evils of the old-time letter de cachet, is forbidden by the constitutional guaranty of due process of law, and inhibited by the right of an accused to have the assistance of counsel.... Holding an accused incommunicable to parents and counsel is a subtle and insidious method of intimidating and cowing, tends to render a prisoner plastic to police assertiveness and demands, and is a trial of mental endurance under unlawful pressure. The defendant was held incommunicable. He could not send for or employ counsel. His father was refused right to see him. When an attorney, presumably employed by his father, appeared at the jail and asked to see defendant, he was refused the right to do so until the attorney started for the courthouse to get a writ of habeas corpus. In this State a parent may not be denied the right to see and have conversation with a child in jail and accused of crime. Neither may police, having custody of one accused of crime, deny an attorney, employed by or in behalf of a prisoner, the right to see and advise the accused. [Id. at 686, 688 (emphasis added).] This Court concluded that “[w]hether defendant’s call for father, mother, attorney, and priest did not make any difference upon the question of his alleged confession being voluntary was for the jury.” Id. at 688-689. Consequently, defendant was entitled to a new trial, “at which the most searching examination of all the circumstances surrounding his alleged confession will be permitted.” Id. at 689. Although Cavanaugh, like Bender, addressed the admissibility of a confession in a circumstance in which an attorney had been denied access to a person facing custodial interrogation, Cavanaugh is distinguishable from Bender in at least three significant ways, and cannot provide its foundation. First, whereas Bender pertained to whether the defendants’ waivers of their Miranda rights were made “knowingly,” Cavanaugh pertained only to whether the defendant’s confession was made voluntarily, as Miranda had not yet introduced into the Fifth Amendment analysis the rule that a defendant cannot be subject to custodial interrogation absent a “voluntary, knowing, and intelligent” waiver of Miranda rights. Because there was no dispute in Bender regarding the voluntary nature of defendants’ incriminating statements, Cavanaugh’s analysis concerning voluntariness cannot provide support for Bender. Second, Cavanaugh appropriately considered multiple factors — only one of which was the police officer’s refusal to allow an attorney access to the defendant — in its “totality of the circumstances” analysis to assess whether the defendant’s confession was made voluntarily, an analysis which at that time was the accepted mechanism for determining compliance with constitutional standards. However, Bender’s rule, invalidating all “unknowing” Miranda waivers, is a per se rule that pertains to just a single factor. Cavanaugh cannot possibly support this per se rule, given that Cavanaugh provided no indication that this Court had ever determined that just one of its several factors — the police officer’s refusal to allow the attorney to see the defendant — gave rise to an independent and per se constitutional right. Third, in Cavanaugh, the juvenile defendant requested and was refused an attorney. This Court properly considered the defendant’s rejected request for an attorney as one factor in its voluntariness analysis. In contrast, in Bender, the defendants never requested an attorney before waiving their Miranda rights and providing incriminating statements. Accordingly, the defendants perceived no rejected request that could act to create a coercive atmosphere and potentially call into question the voluntariness of their statements. Given these significant differences, Cavanaugh lends no support, we believe, to the notion that Michigan’s Constitution supports the per se rule of Bender In Wright, the defendant was arrested for murder, taken to the police station at around 5:00 a.m., and informed of his Miranda rights. The defendant ultimately offered an incriminating statement to police officers after being deprived of food, water, and a place to sleep for a total of eleven hours while awaiting questioning. Before the defendant made his statement, his family retained an attorney who made at least two trips to the police station, requesting to speak with the defendant. Police officers refused the attorney’s request both times. The defendant ultimately gave a statement to the police without being informed of the attorney’s efforts to reach him. Before trial, the defendant filed a motion to suppress his statement. At the suppression hearing, the trial court denied the defendant’s motion, concluding that the defendant had never expressly asked for an attorney. The trial court relied on Moran, reasoning that “although the police conduct was repre hensible, the law did not require the suppression of defendant’s statements.” Wright, 441 Mich at 145-146 (opinion by MALLETT, J.). The Court of Appeals affirmed, declining to impose more stringent standards on police conduct than the United States Supreme Court imposed in Moran. The defendant then appealed in this Court, and we granted leave to appeal to consider “whether a defendant has a right to know of his attorney’s efforts to contact him” and “whether the failure by police to provide a defendant with proper food, water, or opportunity to sleep, renders a defendant’s statements involuntary.” Id. at 146. In an opinion by Justice MALLETT, joined by Justice LEVIN, and separate opinions by Chief Justice CAVANAGH and Justice BRICKLEY, this Court suppressed the defendant’s statements. The fragmented decision resulted in no binding precedent. In the lead opinion, Justice MALLET concluded that the confession had to be suppressed because a suspect must be informed of an attorney’s in-person attempts to contact him, as Michigan’s Constitution provides for such a right. Id. at 154-155. This opinion stated as follows: [U]nder our state’s laws, we conclude that [defendant] did not make a knowing, voluntary, and intelligent waiver of his rights when the police, before he made a statement, refused to inform him that retained counsel tried or was currently trying to contact him. Without this knowledge, [the defendant] could not make a truly voluntary waiver of his essential rights. Given the opportunity to speak to a specific, retained and available attorney, [defendant’s] decision may have been different. Under Const 1963, art 1, § 17, a criminal suspect is given the right against self-incrimination, a right similar to that provided in the Fifth Amendment of the United States Constitution. This Court has held that the interpretation of our constitutional privilege against self-incrimination and that of the Fifth Amendment are the same. In re Moser, 138 Mich 302, 305; 101 NW 588 (1904). However, as the United States Supreme Court concluded in Moran, states are free to adopt more protective standards under state law. Because we believe that it was necessary, in order to allow [defendant] to make a knowing and fully voluntary waiver of his Fifth Amendment rights, we extend the rights afforded under Const 1963, art 1, § 17, to include information of retained counsel’s in-person efforts to contact a suspect. [Id. at 153-154 (citations omitted.] In his separate concurrence, Chief Justice CAVANAGH agreed with Justice MALLETT’s conclusion that the defendant’s statement had to be suppressed and with Justice MALLETT’s analysis in interpreting Michigan’s constitutional privilege against self-incrimination “more broadly” than the Fifth Amendment. Chief Justice CAVANAGH wrote separately to emphasize that the “conclusion is even more clearly supported on the ground that the police conduct in this case violated defendant’s right to counsel under Const 1963, art 1, § 20.” Id. at 155-156 (CAVANAGH, C.J., concurring). In a separate concurring opinion, Justice BRICKLEY agreed that suppression of the defendant’s statement was necessary, but based his decision on his conclusion that the defendant’s Miranda waiver was made involuntarily, citing the “eleven-hour incommunicado interrogation during which [the defendant] was deprived of food, sleep, and contact with friendly outsiders, combined with the fact that he was not informed of available retained counsel.” Id. at 172 (BRICKLEY, J., concurring). Justice RILEY dissented, joined by Justices BOYLE and GRIFFIN, concluding that defendant had knowingly waived his right to consult with an attorney before making his statement, and that the “objectionable” police conduct did not amount to a constitutional viola tion. Id. at 179-180 (RILEY, J., dissenting). The dissent noted that “[t]here is nothing conspicuous in the language of the Michigan Constitution that would distinguish it from the rights guaranteed by the federal constitution.” Id. at 177. Wright cannot provide the foundation for Bender, because it produced no consensus that Article 1, § 17 of Michigan’s Constitution imposes greater requirements for a valid waiver of the rights to remain silent and to counsel than those imposed by the federal Constitution, and its lead opinion, much like Bender’s majority opinion, suffered from scant analysis. The lack of analysis in both opinions is accounted for by the simple fact that there is no basis in the Michigan Constitution for the decisions reached in those opinions. That is, it is not the failure of analyses in these opinions that militates against their extension of Miranda-, it is the absence of any language in the Michigan Constitution that would sustain such an analysis, and that is why each of these opinions is so barren of constitutional exegesis. Only Justice MALLETT’s lead opinion in Wright explicitly “extend[ed] the rights afforded under Const 1963, art 1, § 17” to provide greater protection than those afforded by the Fifth Amendment. Wright, 441 Mich at 154 (opinion by MALLETT, J.). Justice LEVIN concurred, and Justice CAVANAGH agreed with Justice MALLETT’s analysis, but no other member of this Court accepted the lead opinion’s proposition, and Justice RILEY, joined by Justices BOYLE and GRIFFIN, explicitly rejected such a conclusion in her dissent. In any event, the lead opinion cannot provide a foundation for Bender, as it peremp torily concluded that the “accusatorial” nature of our criminal justice system warranted an “extension of] the rights afforded under Const 1963, art 1, § 17,” without anywhere confronting the language of this provision or assessing in any way the intentions of the ratifiers. Instead, in opining that Article 1, § 17 requires police to inform suspects of an attorney’s efforts to contact a suspect in order that a Miranda waiver be valid, the lead opinion acknowledged that it “disagree [d] ” with the Supreme Court’s conclusion to the contrary in Moran, and noted that “states are free to afford their citizens greater protection than that granted by the federal government.” Wright, 441 Mich at 148 (opinion by MALLETT, J.). Doubtless this is true, but such authority on our part does not relieve us from the obligation to ground our actions within our own Constitution. The lead opinion opined further, “[o]ther states have considered [Moran’s] question and have concluded that it is necessary for a suspect to be informed of an attorney’s attempted contacts,” and proceeded to summarize the decisions of the highest state courts of Connecticut, Delaware, and Oregon. Id. at 148-153. Such an observation, while also entirely appropriate as a prelude to extending Miranda, also does not relieve us of the obligation to “determine what law ‘the people [of Michigan] have made.’ ” Sitz, 443 Mich at 759. This obligation is best accomplished by some effort to examine the language of our Constitution that purportedly supplies the basis for the newly discovered constitutional right, Bond, 383 Mich at 699-700, in this instance, Article 1, § 17. However, without engaging in any such analysis, the lead opinion turned to the facts of Wright, and offered the following: As Justice Stevens so eloquently stated, “[t]he recognition that ours is an accusatorial, and not an inquisitorial system nevertheless requires that the government’s actions, even in responding to this brutal crime, respect those liberties and rights that distinguish this society from most others.” Moran, [475 US] at 436 (Stevens, J., dissenting). Accordingly, under our state’s laws, we conclude that Mr. Wright did not make a knowing, voluntary, and intelligent waiver of his rights when the police, before he made a statement, refused to inform him that retained counsel tried or was currently trying to contact him. Without this knowledge, Mr. Wright could not make a truly voluntary waiver of his essential rights. Given the opportunity to speak to a specific, retained and available attorney, Mr. Wright’s decision may have been different. [Wright, 441 Mich at 153 (opinion by MALLETT, J.).] The lead opinion concluded that while “this Court has held that the interpretation of our constitutional privilege against self-incrimination and that of the Fifth Amendment are the same,” it was nevertheless appropriate to “extend the rights afforded by Const 1963, art 1, § 17, to include information of retained counsel’s in-person efforts to contact a suspect.” Id. at 154. The opinion was correct that this Court may interpret our constitution to afford greater protections than those afforded by the Fifth Amendment. However, the opinion did not perform the constitutional analysis necessary to “determine the intent of the framers and of the people adopting it,” Holland, 299 Mich at 470. Consequently, Wright’s “extension of] the rights afforded under Const 1963, art 1, § 17,” cannot provide Bender’s foundation, because that extension was not supported by a majority of this Court, and it was not based on any semblance of the constitutional analysis necessary to ground new rights in the Michigan Constitution, an analysis that would seem to be of particular prudence in distinguishing an interpretation of a provision of the Michigan Constitution from a United States Supreme Court interpretation of the United States Constitution. Cf. Nash, 418 Mich at 209. While this analysis indicates that there is no precedent specifically undergirding Bender, it is also relevant to examine this Court’s caselaw pertaining to Article 1, § 17, as well as to the admissibility of confessions in general, to inquire whether there is any other historical support from this Court for Bender. Specifically, we examine whether there is any precedent that foreshadowed Bender by suggesting either that (a) this Court has interpreted the self-incrimination provision of Article 1, § 17 to extend beyond the protections afforded by the Fifth Amendment; or (b) this Court has interpreted the self-incrimination provision of Article 1, § 17 as focused on something other than the voluntariness of a confession. Concerning the first matter of exploration, there is no precedent that serves as a precursor to Bender by-affording protections under Article 1, § 17 greater than those afforded under the Fifth Amendment. To the contrary, on at least two occasions, this Court had discussed the meaning of Michigan’s Self-Incrimination Clause in comparison to the Fifth Amendment and indicated that Michigan’s Self-Incrimination Clause is identical to its federal counterpart. In In re Moser, 138 Mich 302, 305; 101 NW 588 (1904), we noted that “[u]nder the Constitutions of Michigan and of the United States, no witness can be compelled to give testimony which might tend to criminate himself or expose him to a criminal prosecution. The provision in each Constitution is the same.” Eighty years later, in Paramount Pictures Corp v Miskinis, 418 Mich 708, 726; 344 NW2d 788 (1984), we cited Moser and stated that “[h]aving examined prior decisions of this Court, we find nothing which requires an interpretation of our constitutional privilege against self-incrimination different from that of the United States Constitution.” Moser and Paramount are instructive in that they provide insight concerning the legal environment at the time Bender was decided. Until that point, our interpretations of Article 1, § 17 provided no indication that this Court was prepared to extend the protections of Article 1, § 17 to exceed those of the Fifth Amendment. Concerning the second matter of exploration, while Bender implicates the “knowing” prong of a Miranda waiver, this Court’s precedents indicate that Article 1, § 17 pertains solely to the voluntariness of a confession. “Under Michigan law, initially the admissibility of confessions was governed solely by common law, which adhered to the rule that involuntary confessions were inadmissible.” People v Conte, 421 Mich 704, 721; 365 NW2d 648 (1984) (citations omitted). Subsequently, this Court recognized a constitutional basis for this rule, acknowledging that both the Due Process Clause, Cavanaugh, 246 Mich at 686, and the right against self-incrimination, People v Louzon, 338 Mich 146; 61 NW2d 52 (1953), provide alternate bases for holding involuntary confessions inadmissible. Before Miranda, few cases analyzed the admissibility of a confession in light of the Self-Incrimination Clause, but this Court did so in People v Louzon: We recognize the rule that confessions are inadmissible when secured by inflicting physical force or its equivalent by means of harsh or cruel treatment or false promises. The confession must be voluntary, but this does not mean that it must be volunteered. No one may be forced to be a witness against himself. [Louzon, 338 Mich 153-154 (emphasis added).] Thus, this Court’s use of the Self-Incrimination Clause to analyze the admissibility of a confession focused entirely on the voluntariness of the confession, referring to the type of force or coercion that is contemplated in part by the text of Article 1, § 17. Sometime after Louzon, Miranda transformed the inquiry pertaining to the admissibility of confessions, introducing the concept of a “voluntary, knowing, and intelligent” waiver of a suspect’s Miranda rights. Before Miranda under Michigan law, voluntariness constituted the sole criteria for a confession to be admissible, under either the Due Process Clause, or Michigan’s Self-Incrimination Clause, providing no support for Bender’s proposition that Article 1, § 17 pertains in any way to whether a Miranda waiver is made “knowingly.” In his dissent, Justice CAVANAGH disagrees with this conclusion, and instead asserts that Cavanaugh foreshadowed Miranda’s “knowing and intelligent” requirement by holding that defendant’s confession was obtained in violation of what is now Article 1, § 17, due to the “incommunicable” nature of the defendant’s interrogation. According to the dissent, “incommunicado interrogation was at the center of the United States Supreme Court’s explanation of the ‘knowing and intelligent’ requirement in Miranda,” and “[because Cavanaugh’s explanation of the impropriety of the incommunicado interrogation methods used to extract the defendant’s confession is strikingly similar to the impermissible interrogation methods that Miranda discussed, Cavanaugh is . . . more properly classified as consistent with Miranda’s ‘knowing and intelligent’ standard.” Post at 264. However, as previously noted, Cavanaugh explicitly pertained only to the voluntariness of a confession, and the “incommunicable” nature of defendant’s interrogation was only one factor among many that persuaded this Court to remand for a determination whether defendant’s confession was voluntary. Although Ca vanaugh in no way transformed this Court’s traditional voluntariness analysis, even assuming arguendo that Cavanaugh recognized that more subtle forms of coercion might render a confession involuntary, there is simply no indication that Cavanaugh contemplated the “knowing and intelligent” requirement set forth almost four decades later in Miranda, as Cavanaugh nowhere hinted that a defendant must have some idea of his or her “rights” and the consequences of waiving those rights in order for his or her confession to be admissible. As Miranda had not yet introduced the concept of a waiver made “knowingly and intelligently,” it is highly unlikely that Cavanaugh contemplated such a requirement, or that the ratifiers of the 1963 Constitution perceived Cavanaugh as setting forth such a requirement, particularly in view of the fact that Cavanaugh performed the traditional totality of the circumstances voluntary analysis that was routinely undertaken in determining the admissibility of a confession at that time. As even Justice CAVANAGH’s dissent acknowl edges, “when interpreting the Michigan Constitution, we must recognize the law as it existed in Michigan at the time the relevant constitutional provision was adopted, and ‘it must be presumed that a constitutional provision has been framed and adopted mindful of prior and existing law and with reference to them.’ People v Kirby, 440 Mich 485, 492; 487 NW2d 404 (1992).” Post at 258-259 (emphasis added). The trajectory of our constitutional development under our equivalent of the Fifth Amendment, as well as this Court’s consistent emphasis on the voluntariness of a confession, including in Cavanaugh, indicated no anticipation of Miranda, a notion as to which defense counsel himself agreed at oral argument. Furthermore, Cavanaugh was decided under the Due Process Clause, and not the Self-Incrimination Clause, further suggesting that the ratifiers of the 1963 Constitution would not have perceived Cavanaugh as establishing that Michigan’s provision against compulsory self-incrimination provided any greater protections than those afforded by the Fifth Amendment. Accordingly, neither Cavanaugh, nor any other precedent of this Court, supports the dissent’s assertion that Article 1, § 17 was ratified in contemplation of the “knowing” requirement later set forth in Miranda. Moreover, this Court’s precedent provides no support for the proposition that this Court has placed extra emphasis on the “knowing” prong of a Miranda waiver in the period since Miranda. Before and after Miranda, “[wjhere conditions did not overbear a defendant’s will, statements have been held admissible.” Wright, 441 Mich at 167, citing People v Brannan, 406 Mich 104; 276 NW2d 14 (1979); People v Farmer, 380 Mich 198; 156 NW2d 504 (1968); People v Boyce, 314 Mich 608; 23 NW2d 99 (1946). Even after Miranda and Bender, this Court has referred to Moran for the appropriate “knowing and intelligent” waiver standard, and stated that “[t]o knowingly waive Miranda rights, a suspect need not understand the ramifications and consequences of choosing to waive or exercise the rights that the police have properly explained to him” and “[l]ack of foresight is insufficient to render an otherwise proper waiver invalid.” People v Cheatham, 453 Mich 1, 28-29; 551 NW2d 355 (1996) (citations omitted). Thus, Bender’s heightened requirement for a Miranda waiver to be made “knowingly” is inconsistent with this Court’s previous treatment of the requirement. This Court’s precedents did not foreshadow, or otherwise provide support, for Bender. Nor do this Court’s precedents support a finding that Article 1, § 17 requires a greater showing that a Miranda waiver was made “knowingly” than is required by the Fifth Amendment, given that this Court’s interpretation of Article 1, §17 has indicated that it pertains solely to the voluntariness of a confession itself, not to whether a confession is made with full knowledge of its consequences. 4. BENDER vs. MORAN This Court’s independent constitutional analysis of Article 1, § 17 leads us to the conclusion that Moran, not Bender, best analyzes the issue presented in this case. Our analysis indicates that Article 1, § 17 protects a suspect only from the use of confessions or incriminating statements obtained by coercion, violence, force, or pressure. However, Bender’s rule renders confessions and incriminating statements inadmissible that were in no way influenced by the type of coercive or compelling atmosphere contemplated by the provision. Miranda was initially intended by the United States Supreme Court (at least until its later decision in Dickerson) to serve as “one possible formula” by which to dispel the coercive atmosphere implicit in custodial interrogation; its purpose was to alleviate what it viewed as the increasingly subtle and nuanced forms of coercion that sometimes typified the custodial interrogation process and undermined the genuine voluntariness of statements produced by this process. In fact, the United States Supreme Court has explained that “Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that.” Colorado v Connelly, 479 US 157, 170; 107 S Ct 515; 93 L Ed 2d 473 (1986). However, the situation in Bender falls considerably outside the scope of the custodial interrogation process that defined the constitutional rationale for Miranda. That is, Bender’s rule renders inadmissible even statements and confessions made following an indisputably voluntary and informed Miranda waiver absent even the slightest hint of the subtle or nuanced forms of coercion that served as the justification for Miranda. Miranda’s treatment of such forms of coercion at least sought to remain faithful to the Fifth Amendment’s traditional voluntariness standard. Our independent examination of Article 1, § 17 supports Moran’s conclusion that “full comprehension of [the Miranda rights] are sufficient to dispel whatever coercion is inherent in the interrogation process,” Moran, 464 US at 427, because the warnings provide a suspect with the necessary information both to apprehend these rights and to make an intelligent and knowing waiver of the rights if he chooses. The waiver of rights cannot logically be affected by events that are unknown and unperceived, such as the fact that an attorney is somewhere present to offer assistance. As explained by one scholar: If there is any police misconduct, the suspect is unaware of such events because it is directed toward the attorney. Facts and events unknown to the suspect cannot have a coercive effect on the suspect. Therefore, the attorney’s efforts and/or presence is irrelevant to the suspect’s ability to make a voluntary, knowing, and intelligent waiver of his Miranda rights. Moreover, as the suspect is still read his Miranda rights, such events do not operate to deprive the suspect of the knowledge of his rights. To argue or conclude that a defendant, who by the good fortune of a family member hiring an attorney, must be told of the attorney’s attempts to make contact in order to make a knowing and intelligent waiver of Miranda rights is illogical and nonsensical. In fact, for the majority’s reasoning to make sense, the majority would have to conclude that persons who are capable of retaining an attorney, or have family or friends who are capable of hiring a retained attorney, are not capable of making a knowing and intelli gent waiver of Miranda rights even when the attorney is not present. As is evident by the admissibility of a suspect’s Miranda waiver in the ordinary custodial interrogation situation, the majority would not so conclude. [Carroll, A Look at People v Bender: What Happens when the Michigan Supreme Court Oversteps Its Power to Achieve A Results-Oriented Decision, 74 U Det Mercy L Rev 211, 236-237 (1997) (citations omitted).] We therefore agree with Moran that an outside and unperceived development, such as an attorney’s presence and initiation of contact with police, “can have no bearing on [a suspect’s] capacity to comprehend and knowingly relinquish a constitutional right.” Moran, 475 US at 422. Instead, as noted by the United States Supreme Court in Colorado v Spring, 479 US 564, 577; 107 S Ct 851; 93 L Ed 2d 954 (1987), “the additional information could affect only the wisdom of a Miranda waiver, not its essentially voluntary and knowing nature.” It might not be in a suspect’s best interest to make a statement, but this Court need not concern itself with the wisdom of a suspect’s confession. To the contrary, voluntary but “foolish” confessions should be welcomed, as a suspect’s perhaps unwise but purely voluntary urge to tell the truth is vital in assisting the fact-finder in ultimately ascertaining the truth of what occurred. In sum, independent examination of Article 1, § 17 persuades us that the United States Supreme Court correctly interpreted this issue in Moran. This examination further supports Moran’s conclusions that “[e]vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right,” that the “ ‘deliberate or reckless’ withholding of information ... is only relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them,” and that the Miranda warnings alone “are sufficient to dispel whatever coercion is inherent in the interrogation process.” Moran, 475 US at 422-424, 427. Because our constitutional analysis demonstrates that Article 1, § 17 does not confer the protections set forth in Bender, but instead supports Moran’s analysis and conclusion, we conclude that Bender was wrongly decided. We conclude, as did the United States Supreme Court in Moran, that the failure of police to inform a suspect of an attorney’s efforts to contact him does not invalidate an otherwise “voluntary, knowing, and intelligent” Miranda waiver. C. STARE DECISIS When this Court determines that a case has been wrongly decided, as we do here with regard to Bender, it must next determine whether it should overrule that precedent, a decision that should never be undertaken lightly. The application of stare decisis is “generally ‘the preferred course, because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’ ” Robinson v Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000), quoting Hohn v United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998). However, “stare decisis is a ‘principle of policy’ rather than ‘an inexorable command,’ and... the Court is not constrained to follow precedent when governing decisions are unworkable or are badly reasoned.” Robinson, 462 Mich at 464 (citations omitted). This Court has discussed the proper circumstances under which it will overrule prior case law: This Court has stated on many occasions that “[u]nder the doctrine of stare decisis, principles of law deliberately examined and decided by a court of competent jurisdiction should not be lightly departed.” ...[.] “Before this court overrules a decision deliberately made, it should be convinced not merely that the case was wrongly decided, but also that less injury will result from overruling than from following it.” When it becomes apparent that the reasoning of an opinion is erroneous, and that less mischief will result from overruling the case rather than following it, it becomes the duty of the court to correct it. [People v Graves, 458 Mich 476, 480-481; 581 NW2d 229 (1998) (citations omitted) (alteration in original).] When performing a stare decisis analysis, this Court should review inter alia “whether the decision at issue defies ‘practical workability,’ whether reliance interests would work an undue hardship, and whether changes in the law or facts no longer justify the questioned decision.” Robinson, 462 Mich at 464 (citation omitted). As for the rebanee interest, “the Court must ask whether the previous decision has become so embedded, so accepted, so fundamental to everyone’s expectations that to change it would produce not just readjustments, but practical real-world dislocations.” Id. at 466. When questions before this Court implicate the Constitution, this Court arguably has an even greater obligation to overrule erroneous precedent. “[A] judicial tribunal is most strongly justified in reversal of its precedent when adherence to such precedent would perpetuate a plainly incorrect interpretation of the language of a constitutional provision or statute.” Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 181; 615 NW2d 702 (2000), citing Robinson, 462 Mich at 463-468. This is because “the pobey of stare decisis ‘is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.’ ” Kyser v Kasson Twp, 486 Mich 514, 534, n 15; 786 NW2d 543 (2010), quoting Agostini v Felton, 521 US 203, 235; 117 S Ct 1997; 138 L Ed 2d 391 (1997). Thus, it is “our duty to reexamine a precedent where its reasoning or understanding of the Constitution is fairly cabed into question.” Robinson, 462 Mich at 464, quoting Mitchell v W T Grant Co, 416 US 600, 627-628; 94 S Ct 1895; 40 L Ed 2d 406 (1974) (Powell, J., concurring). Although Bender disclaimed rebanee on Michigan’s Constitution, it nonetheless vaguely referred to its provisions in enacting its “prophylactic” rule, suggesting that this Comb has a duty to review this decision under less deferential standards of stare decisis in bght of our role as the final judicial arbiter of this Constitution. We conclude that overruling Bender would not produce “practical real-world dislocations,” primarily because Bender obviously cannot be said to have caused suspects to “alter their conduct in any way.” See People v Petit, 466 Mich 624, 635; 648 NW2d 193 (2002). As Moran noted, “[e]vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” Moran, 475 US at 422. It seems highly unlikely that a suspect being interrogated, after a day earlier having expressly refused to waive his right to counsel and then reconsidering that decision by affirmatively seeking to speak with police and then expressly waiving his right to counsel, would thereafter rely on Bender in determining that he need not ask for an attorney because the officers have a legal duty to inform him that an attorney has initiated contact with them. Although a suspect might later come to have second thoughts and prefer that he had not waived his right to counsel, “[s]uch after-the-fact awareness does not rise to the level of a reliance interest because to have reliance the knowledge must be of the sort that causes a person or entity to attempt to conform his conduct to a certain norm before the triggering event.” Robinson, 462 Mich at 466-467. Consequently, Bender has not become so “fundamental to everyone’s expectations” that to overrule it would result in “real-world dislocations.” Id. at 466. Further, that Bender can fairly be considered to be “workable,” in the sense that the police may clearly understand their legal obligations to a defendant and his attorney, does not render “practically unworkable” a regime in which a defendant’s rights are just as clearly understood. Contrary to Bender, we do not believe that increased “mischief” will result from this Court’s failure to maintain the rule expounded in that case as the constitutional law of this state. As already noted, we agree with Moran that the constitutional “voluntariness” of a confession or incriminating statement is not implicated by the failure of police to inform the defendant of the presence of an attorney before proceeding with a custodial interrogation after Miranda warnings have been given and Miranda rights waived. Whether a defendant does or does not possess knowledge of an attorney’s outside presence cannot affect whether that defendant understands the rights that he or she is waiving, and neither the United States Supreme Court nor this Court has ever accepted the proposition that an attorney must be present in order that a Miranda waiver be characterized as “voluntary, knowing, and intelligent.” Moran accurately highlighted the competing policies informing both Miranda and its progeny, including Moran itself: Custodial interrogations implicate two competing concerns. On the one hand, “the need for police questioning as a tool for effective enforcement of criminal laws” cannot be doubted. Admissions of guilt are more than merely “desirable,” they are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law. On the other hand, the Court has recognized that the interrogation process is “inherently coercive” and that, as a consequence, there exists a substantial risk that the police will inadvertently traverse the fine line between legitimate efforts to elicit admissions and constitutionally impermissible compulsion. Miranda attempted to reconcile these opposing concerns by giving the defendant the power to exert some control over the course of the interrogation. ... Police questioning, often an essential part of the investigatory process, could continue in its traditional form, the Court held, but only if the suspect clearly understood that, at any time, he could bring the proceeding to a halt or, short of that, call in an attorney to give advice and monitor the conduct of his interrogators. The position urged by [defendant] would upset this carefully drawn approach in a manner that is both unnecessary for the protection of the Fifth Amendment privilege and injurious to legitimate law enforcement. Because, as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process, a rule requiring the police to inform the suspect of an attorney’s efforts to contact him would contribute to the protection of the Fifth Amendment privilege only incidentally, if at all. This minimal benefit, however, would come at a substantial cost to society’s legitimate and substantial interest in securing admissions of guilt. [Moran, 475 US at 426-427 (citations omitted).] The Moran Court’s concern that further protections against self-incrimination, such as those set forth in Bender, would impinge on the effectiveness of law enforcement are entirely valid, in our judgment. Neither the Fifth Amendment nor Article 1, § 17 is hostile to custodial interrogations — only to those in which there is some coercive environment. Similarly, neither the Fifth Amendment nor Article 1, § 17 is hostile to confessions and self-incrimination — only to those which are “compelled.” Indeed, confessions and incriminating statements constitute perhaps the most compelling and important evidence available to fact-finders in the justice system’s search for truth. Suppression of such evidence as the result of a Bender violation deprives these fact-finders of evidence allowing them to distinguish truth from falsity and innocence from guilt, while avoiding the conviction of innocent persons and the exoneration of guilty persons, all in pursuit of a principle that has never since the founding of our republic or state been viewed as a constitutional violation. Although overruling Bender will undeniably result in some unknown number of confessions and incriminating statements that might otherwise not have been provided, such evidence will have been voluntarily offered and have been preceded by “voluntary, knowing, and intelligent” waivers of Miranda rights. This evidence is to be welcomed, not repudiated, by any rational and effective criminal justice system. It is hard to comprehend a societal interest that is furthered by protecting persons who have engaged in serious criminal activities from the consequences of their own voluntary and intelligent decisions. While Justice CAVANAGH’s dissent claims that “this statement entirely ignores the overriding principle of our criminal justice system: that a suspect is presumed innocent until proven guilty beyond a reasonable doubt,” post at 282, we are inclined instead to concur with Justice BOYLE who observed in her Bender dissent that, “ [i]f properly administered and validly waived, the Miranda warnings ensure protection of a defendant’s right against compulsory self-incrimination, while at the same time allowing the police to fulfill their duty in a constitutionally permissible manner.” Bender, 452 Mich at 626 (BOYLE, J., dissenting). Because we believe that less, not more, “mischief” will likely result from overruling the case, we are further persuaded of the need to overrule Bender. See Graves, 458 Mich at 480-481, citing McEvoy v Sault Ste Marie, 136 Mich 172, 178; 98 NW 1006 (1904) (stating that in reversing precedent, the Court “should be convinced not merely that the case was wrongly decided, but also that less injury will result from overruling than from following it”). V CONCLUSION An examination of Michigan’s Constitution and a review of this Court’s precedents compel the conclusion that Bender was wrongly decided and should now be overruled. In accordance with Moran, we hold that “[o]nce it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.” Moran 475 US at 422-423. Although this Court need not interpret a provision of our Constitution in the same manner as a similar or identical federal constitutional provision, we are persuaded in the present instance, on the basis of our examination of Article 1, § 17, that the United States Supreme Court’s interpretation of the Self-Incrimination Clause of the Fifth Amendment in Moran constitutes the proper interpretation of Article I, § 17 as well. We reverse the trial court’s suppression of incriminating statements made by defendant during custodial interrogation and remand to that court for further proceedings consistent with this opinion. Young, C.J., and Kelly, Zahra, and Viviano, JJ., concurred with MARKMAN, J. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). See Brown v Mississippi, 297 US 278; 56 S Ct 461; 80 L Ed 682 (1936) (a confession is inadmissible if extorted by brutality and violence); Chambers v Florida, 309 US 227, 238-239; 60 S Ct 472; 84 L Ed 716 (1940) (the defendant’s confession was inadmissible when made “under circumstances calculated to break the strongest of nerves and stoutest resistance”); Ashcraft v Tennessee, 322 US 143; 64 S Ct 921; 88 L Ed 1192 (1944) (the modern voluntariness test began to emerge in Ashcraft, in which the Court examined the totality of the circumstances to determine whether a confession was voluntary). “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id. at 444. Some have referred to Miranda as establishing what is essentially the equivalent of a “right not to be questioned”: A final innovation of the Miranda decision was the creation of a right on the part of arrested persons to prevent questioning. The Court stated: “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease .... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” The right not to be questioned was an addition to the traditional right to refrain from answering questions on grounds of potential self-incrimination. At the time of the Constitution, suspects had no right to cut off custodial interrogation, and no right of this sort was recognized in the Supreme Court’s decisions prior to Miranda.... [United States Department of Justice, Office of Legal Policy, The Law of Pretrial Interrogation, 22 U Mich J L Reform 393, 484 (1989), quoting Miranda, 384 US at 473-474.] In Dickerson v United States, 530 US 428, 438-440, 444; 120 S Ct 2326; 147 L Ed 2d 405 (2000), the United States Supreme Court determined that although Miranda is “prophylactic in nature,” it is nonetheless a “constitutional rule that Congress may not supersede legislatively.” “The clear rule in Michigan is that a majority of the Court must agree on a ground for decision in order to make that binding precedent for future cases.” People v Anderson, 389 Mich 155, 170; 205 NW2d 461 (1973), overruled on other grounds by People v Hickman, 470 Mich 602; 684 NW2d 267 (2004). The lead opinion acknowledged that “neither defendant’s statement was involuntary.” Id. at 604. Consequently, the only focus was upon whether the defendants’ statements were made “knowingly and intelligently.” Although Chief Justice BRICKLEY’s opinion is labeled as a concurrence, it is practically speaking a majority opinion, and thus I will refer to it as such throughout this opinion. In Justice McCormack’s dissent, she asserts that the instant case does not afford an appropriate vehicle to overrule Bender because, unlike defendants in Bender, defendant here repeatedly expressed his desire for counsel before ultimately making an incriminating statement to the police. According to the dissent, the rule in Bender is “sufficient” to sustain the suppression of defendant’s statement, but is not “necessary” in order to do so, because the voluntariness of defendant’s statement was implicated, or called into question, by defendant’s failed attempts to invoke his right to counsel. However, in defendant’s motion to suppress, he acknowledged that his statement to law enforcement was entirely voluntary, and argued only that his Miranda waiver had not been undertaken knowingly and intelligently pursuant to Bender and Wright, on the basis of the police’s failure to inform him that an attorney had been appointed on his behalf and had sought to meet with him. Thus, whether defendant’s statement was undertaken voluntarily is not an issue that has been raised in this Court. Furthermore, because defendant clearly and explicitly relied on Bender in his motion to suppress, and because the trial court also clearly and explicitly relied on Bender in granting this motion, the instant case does indeed afford an appropriate vehicle by which to assess the precedential value of Bender. Whether defendant’s statement should be suppressed on other constitutional grounds can be considered on remand, provided both that such constitutional arguments have not been precluded by defendant’s pursuit of the current motion and that counsel offers the appropriate pretrial motions. “Under the Supremacy Clause, the courts of this state are obliged to enforce the rights conferred by the United States Supreme Court even if the state constitution does not provide such rights.” Sitz, 443 Mich at 759 (citation omitted). However, an “organic instrument of state government” need not he “interpreted as conferring the identical right.” Id. at 760. “It is only where the organic instrument of government purports to deprive a citizen of a right granted by the federal constitution that the instrument can be said to violate the constitution.” Id. at 760-761 (emphasis added). Accordingly, this Court may interpret our Constitution in a manner that confers greater protections on a suspect than those mandated by federal law. For example, the majority acknowledged that “[t]his case rather clearly implicates both the right to counsel and the right against [compulsory] self-incrimination” before concluding that a prophylactic rule was appropriate. Bender, 452 Mich at 620-621 (opinion by Brickley, C.J.) (citations omitted). The majority continued that “the right to counsel and the right to he free of compulsory self-incrimination are part of the bedrock of constitutional civil liberties that have been zealously protected and in some cases expanded over the years,” and that “[g]iven the focus and protection that these particular constitutional provisions have received, it is difficult to accept and constitutionally justify a rule of law that accepts that law enforcement investigators, as part of a custodial interrogation, can conceal from suspects that counsel has been made available to them and is at their disposal.” Id. at 621. The Bender Court had the undeniable authority to articulate a state constitutional rule as long as the individual protections set forth in Moran were not contracted. Const 1963, art 11, § 1 states: “All officers, legislative, executive and judicial, before entering upon the duties of their respective offices, shall take and subscribe the following oath or affirmation: I do solemnly swear (or affirm) that I will support the Constitution of the United States and the constitution of this state, and that I will faithfully discharge the duties of the office ... according to the best of my ability.” See also US Const, art VI. Const 1963, art 1, § 1 states: “All political power is inherent in the people. Government is instituted for their equal benefit, security and protection.” There is a reason why the United States and Michigan Constitutions should be read differently; namely, “we, the people” of the State of Michigan created Michigan’s Constitution, and interpretations of this Constitution must reflect that will, and “we the people of the United States” created the United States Constitution, and interpretations of that Constitution must reflect that will. These are distinct constitutions and distinct citizenries, and this Court must independently analyze our state Constitution to ensure that our citizens are receiving the measure of the protections that they created, which protections may or may not extend beyond those set forth by the federal Constitution. While there might well be an informal presumption that a United States Supreme Court interpretation of a federal constitutional provision constitutes the proper interpretation of a similar or identical state constitutional provision, this Court need not apply that presumption, and it need not defer to an interpretation of the United States Supreme Court, unless we are persuaded that such an interpretation is also most faithful to the state constitutional provision. This Court has on occasion seemed to suggest that there is some specific burden on this Court to identify a “compelling reason” or justification for interpreting the words of the Michigan Constitution differently than the words of the United States Constitution. See, e.g., People v Nash, 418 Mich 196, 214-215; 341 NW2d 439 (1983) (“We have, on occasion, construed the Michigan Constitution in a manner which results in greater rights than those given by the federal constitution, and where there is compelling reason, we will undoubtedly do so again.”) (citations omitted); People v Collins, 438 Mich 8, 25; 475 NW2d 684 (1991) (“[A]rt 1, § 11 is to be construed to provide the same protection as that secured by the Fourth Amendment, absent ‘compelling reason’ to impose a different interpretation.”) (citations omitted). However, this cannot precisely describe this Court’s relationship with the federal judiciary, even with the United States Supreme Court. While it may almost always be prudent and responsible for this Court to examine federal precedents when they pertain to the same or similar language as in the Michigan Constitution, our responsibility in giving meaning to the Michigan Constitution must invariably focus upon its particular language and history, and the specific intentions of its ratifiers, and not those of the federal Constitution. Simply put, our exercise of judgment concerning the reasonable meaning of the provisions of our state Constitution cannot, consistently with our oath of office and our structure of constitutional federalism, he delegated to another judicial body. This Court has referred to various factors that may he relevant in determining whether Michigan’s Constitution supports an interpretation that differs from that of the United States Constitution: 1) the textual language of the state constitution, 2) significant textual differences between parallel provisions of the two constitutions, 3) state constitutional and common-law history, 4) state law preexisting adoption of the relevant constitutional provision, 5) structural differences between the state and federal constitutions, and 6) matters of peculiar state or local interest. [Collins, 438 Mich at 31 n 39, citing People v Catania, 427 Mich 447, 466 n 12; 398 NW2d 343 (1986).] We continue to believe that the application of these factors will often prove helpful to this Court in the interpretation of particular state constitutional provisions. However, we also believe that examination of these factors collectively supports the conclusion that the ultimate task facing this Court in cases requiring interpretation of particular Michigan constitutional provisions is to respectfully consider federal interpretations of identical or similar federal constitutional provisions, but then to undertake by traditional interpretive methods to independently ascertain the meaning of the Michigan Constitution. Michigan’s Constitution of 1835 did not contain a self-incrimination provision; however, the current provision was incorporated shortly thereafter in 1850. Const 1850, art 6, § 32. This provision remained unchanged in Article 2, § 16 of Michigan’s Constitution of 1908 and in Article 1, § 17 of Michigan’s Constitution of 1963. In 1963, Article 1, § 17 was amended to add “the right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed,” but the self-incrimination part of the provision remained unchanged. Thus, the language of the Michigan Constitution’s self-incrimination provision has remained consistent since its incorporation in 1850. We need not decide whether our interpretation of “compel” for purposes of Article 1, § 17 is fully in accord with Miranda’s interpretation of the same term for purposes of the Fifth Amendment, given that Miranda has established an irreducible minimum standard for purposes of all custodial interrogations in Michigan, as well as those in every other state. Further, such a comparison would be irrelevant to our assessment of Bender, as Bender’s interpretation of “compel” goes beyond its meaning as contemplated by either Article 1, § 17 or Miranda. Pursuant to Bender, a suspect’s voluntary Miranda waiver, made with full knowledge of his Miranda rights, can nonetheless be considered “compelled” for purposes of Article 1, § 17, and therefore invalid, solely because that suspect was not informed of an attorney’s efforts to contact the suspect. Accordingly, Bender renders incriminating statements or confessions inadmissible by finding “compulsion” when there existed no form of the coercion, violence, force, or pressure contemplated by either the text of Article 1, § 17, or by the United States Supreme Court in its analysis of what it viewed as more subtle and nuanced forms of coercion in Miranda. Indeed, constitutional conventions, as a distinctive form of “super legislative history,” deriving from the source of authority of the constitution itself, “we, the people,” may be highly valuable in interpreting constitutional provisions: “[T]he constitutional convention is a distinctively American contribution to political theory and action .... [I]t is the personification of the sovereign people assembled for the discharge of the solemn duty of framing their fundamental law.” [Schlam, State Constitutional Amending, Independent Interpretation, & Political Culture, 43 DePaul L Rev 269, 320 n 148 (1994), quoting Walker, Myth & Reality in State Constitutional Development, in Major Problems in State Constitutional Revision (Graves, ed, 1960), p 15 (alterations in original).] For example, in People v Nash, this Court concluded that it should interpret Michigan’s Constitution differently than the United States Supreme Court’s interpretation of the Fourth Amendment, in part because the records of the Michigan Constitutional Convention of 1961 indicated that the addition of an anti-exclusionary-rule provision was made in a particularly aggressive attempt by the delegates to assert state sovereignty in reaction to the United States Supreme Court decision in Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961). Nash, 418 Mich at 211-213. There are two distinct “voluntariness” inquiries that must he considered in analyzing the admissibility of an incriminating statement or confession. First, the incriminating statement or confession itself must have been made voluntarily. Second, a suspect’s Miranda waiver must have been made voluntarily These distinct concepts of “voluntariness” must be borne in mind in assessing both Bender and Moran. Justice Cavanagh’s dissent misapprehends this point by stating “the majority argues that Cavanaugh cannot support Bender because Cavanaugh employed a ‘totality of the circumstances’ rule rather than the per se rule applied in Bender. The fact that Cavanaugh and Bender differed on what test should result from police interference with counsel’s efforts to speak to a suspect does not lessen the fact that both Cavanaugh and Bender agreed that such police conduct is unconstitutional under the Michigan Constitution.” Post at 267-268. However, our point is not that Cavanaugh’s application of a totality of the circumstances test instead of a per se rule is fatal to Bender, but is instead that by concluding that the police’s refusal to allow the attorney to see the defendant was only one factor among many that might have rendered the defendant’s confession involuntary, Cavanaugh nowhere concluded that such failure alone would render a confession inadmissible. In other words, because this Court concluded that the jury should hear a host of factors to determine whether the defendant’s confession was voluntary, a single factor — that counsel’s requests to speak to the defendant were refused — cannot he identified and cited for the proposition that Cavanaugh established as a matter of constitutional principle that a defendant must be informed of an attorney’s attempts to contact him in order for his subsequent confession to be admissible. Similarly, in the ease at hand, defendant failed to request an attorney after reinitiating contact with police and before waiving his Miranda rights and making an incriminating statement, despite the fact that defendant knew he could request an attorney, as he had done so the day before. It should be noted that, were the circumstances in Cavanaugh to arise today, the confession would be inadmissible, as the officers ignored the defendant’s assertion of his right to counsel and continued to interrogate him, contrary to Miranda, 384 US at 473-474. Despite this, Bender’s lead opinion stated that “[i]n Wright, this Court held that the Michigan Constitution imposes a stricter requirement for a valid waiver of the rights to remain silent and to counsel than imposed by the federal constitution.” Bender, 452 Mich at 611 (opinion by Cavanagh, J.). Justice CAVANAGH’s dissent alleges that Cavanaugh provided specific support for Bender, as the justices in support of Bender “necessarily relied on Cavanaugh (as evidenced by the Bender opinion’s citations to the Wright opinions, which cited Cavanaugh) as the primary source for the broader interpretation of the right against self-incrimination under the Michigan Constitution.” Post at 274. However, Bender did not once cite Cavanaugh, and although several opinions in Wright did cite Cavanaugh, none cited it for the proposition that Michigan’s right against compulsory self-incrimination affords greater protections than those afforded by the Fifth Amendment. In Wright, Justice Mallett did not cite Cavanaugh in the lead opinion; Justice Cavanagh cited Cavanaugh in his concurrence in support of his belief that the police conduct in Wright violated defendant’s right to counsel under Article 1, § 20 and the due process provision now contained in Article 1, § 17, Wright, 441 Mich at 156-157 (opinion by Cavanagh, J.); Justice Brickley cited Cavanaugh in his concurrence for the proposition that incommunicado interrogation affects the voluntariness of a. Miranda waiver, id. at 168-169 (opinion by Brickley, J.); and Justice Riley cited Cavanaugh in her dissent to rebut the argument that Michigan’s Constitution requires officers to inform a defendant of an attorney’s presence for that defendant’s waiver to be made voluntarily and knowingly, id. at 178-180 (opinion by Riley, J.). Thus, this Court did not rely on Cavanaugh for the proposition that the compulsory self-incrimination provision contained in Article 1, § 17 provides protections that extend beyond those afforded by the Fifth Amendment. As we have indicated, we do not understand the assertions in Moser and Paramount as communicating that this Court, in carrying out its obligation to interpret Article 1, § 17, will forever adhere to all future interpretations of the Fifth Amendment hy the United States Supreme Court, but merely that, in our judgment, the framers of these constitu tional provisions possessed similar intentions with regard to their purposes, and possibly also that until that time, judicial understandings of Article 1, § 17 and the Fifth Amendment were in general accord. In his dissent, Justice CAVANAGH asserts that our “hyper-textualist” definition of “compulsion” is inconsistent with Cavanaugh’s understanding of the term, as Cavanaugh recognized that “incommunicable” interrogation may render a confession involuntary, and such “incommu nicable” interrogation is not the type of “coercion, violence, force, or pressure” contemplated by our definition. However, Cavanaugh did not hold that a confession made in an “incommunicable” environment is involuntary, which is what the dissent would seem to suggest. Cavanaugh instead acknowledged only that the incommunicable nature of a confession might be one factor, combined with a host of others — -including sleep deprivation, duress, and “brow-beating,” all factors that were traditionally considered in a voluntary analysis — that might potentially render a confession involuntary. This Court should not isolate a single factor from Cavanaugh in order to establish the meaning of “compulsion” or “voluntariness” in Michigan, in disregard of what Article 1, § 17, and the body of caselaw both preceding and succeeding Cavanaugh, would otherwise suggest. Notably, even Justice Brickley, writing for the majority in People v Hill, 429 Mich 382, 392-393; 415 NW2d 193 (1987), acknowledged that “[a]t the time of the drafting of our 1963 Constitution (pre-Miranda), the self-incrimination provision of the Fifth Amendment was only implicated when an extrajudicial statement was found to have been elicited involuntarily.” At oral argument, defense counsel acknowledged that Cavanaugh established a right to counsel as a condition of voluntariness, and that the Court could not have been contemplating a “knowing and intelligent” standard at that time. Specifically, he stated, “I don’t think really the courts had entertained as much beyond the voluntariness as came later on with Miranda — where it talks about voluntary, knowing, and intelligent. So as the law progressed, I think they weren’t really addressing knowing and intelligent.” Moreover, defendant has cited no caselaw apart from Cavanaugh that hints at either a “knowing” requirement, or a different “voluntariness” definition, than the one contemplated by Article 1, § 17. Going one step further, even assuming arguendo that Cavanaugh in some way did contemplate Miranda’s “knowing” prong, there is certainly no indication that Cavanaugh further contemplated the additional and specific protections placed on this prong by Bender. Justice Cavanagh’s dissent alleges that the right to counsel articulated in Article 1, § 20 of Michigan’s Constitution, which states that, “[i]n every criminal prosecution, the accused shall have the right... to have the assistance of counsel for his or her defense,” lends additional support for Bender. See post at 275-278. However, in Kirby v Illinois, 406 US 682, 688; 92 S Ct 1877; 32 L ED 2d 411 (1972), the United States Supreme Court held that the right to counsel attaches “only at or after the time that adversary judicial proceedings have been initiated against him.” Although this Court initially recognized that there may be instances in which the right to counsel attaches prior to formal charging in People v Anderson, 389 Mich 155; 205 NW2d 461 (1973), and People v Jackson, 391 Mich 323, 338; 217 NW2d 22 (1974), we expressly overruled Anderson and its progeny, including Jackson, to the extent they “go[] beyond the constitutional text and extend!] the right to counsel to a time before the initiation of adversarial criminal proceedings” in People v Hickman, 470 Mich 602, 603-604, 608-609; 684 NW2d 267 (2004), and reaffirmed that the right to counsel attaches at or after the initiation of adversarial judicial criminal proceedings. In both Bender, and the instant case, defendants waived their Miranda rights and made incriminating statements before charges were issued, and therefore before the initiation of adversarial judicial criminal proceedings, signifying that the right to counsel had not yet attached. While the dissent articulates its own belief that Anderson and Jackson were overruled in error, and that Kirby’s restriction is “arbitrary,” the majority of this Court did not agree and current law clearly indicates that the right to counsel had not yet attached at the time of defendant Bender and defendant Tanner’s Miranda waivers. Therefore, Article 1, § 20 also does not support Bender. See note 5 of this opinion. The United States Supreme Court has determined that, despite its initial “prophylactic” character, Miranda is now a “constitutional rule.” Dickerson, 530 US at 438-440, 444. However, this does not necessarily mean that Bender’s “prophylactic” rule is also constitutional in character. Although Miranda affords protections that seem to exceed the textual boundaries of the Fifth Amendment, the United States Supreme Court has emphasized that the point oí Miranda is to protect against the coercive nature of the custodial interrogation environment, which clearly does implicate the Fifth Amendment. However, because Bender is implicated even when a confession is altogether voluntary and non-coercive, and because Bender pertains to whether the Miranda waiver was knowing, and not to the voluntariness of the confession, it is hardly self-evident that Bender is “prophylactic” in the same way in upholding the Constitution as was Miranda. Because Bender invalidates confessions made absent any evidence of the type of coercive custodial interrogation environment that motivated Miranda, Bender does not further Miranda’s purpose of dissipating the impact of this environment, or at the very least does so in a far more indirect and attenuated manner by, in the words of the Bender dissent, “creating] prophylactic rules to protect prophylactic rights.” Bender, 452 Mich at 644. Contrary to Justice Cavanagh’s dissent, we do not conclude that it is Bender’s “prophylactic” character that “deprives the [Bender] rule of constitutional status,” post at 269, hut rather the nature of the rule itself. The fact that counsel in this case was appointed, whereas counsel in Bender was retained, makes no difference to our analysis, or to Bender itself as far as we can see. In neither instance can an attorney’s unsuccessful efforts to contact a defendant affect the defendant’s ability to apprehend and voluntarily waive his Miranda rights. This case illustrates the problems with Bender. Defense counsel concedes that defendant’s waiver was made voluntarily, and there are no allegations that defendant did not understand the Miranda rights that he waived. Because defendant did not invoke his right to counsel after reinitiating discussion with the police and being advised of his Miranda rights a second time, and because the adversarial proceedings had not yet begun, the prosecutor was not required to contact the court, and the court was not required to appoint an attorney for defendant. Had the prosecutor and court not been proactive in effecting the appointment of an attorney, Bender never would have been implicated, because there would have been no attorney of whose presence defendant needed to be informed. Instead, the prosecutor, on behalf of the people, was effectively sanctioned by the suppression of defendant’s voluntary statements for having taken the precaution of seeking out counsel in the event that defendant requested counsel before or during his interrogation.) Consequently, Bender has the effect of discouraging the type of initiative shown by the prosecutor, because police officers and prosecutors will almost certainly be more reluctant to facilitate counsel before one is legally required if the consequence is the suppression of evidence. Justice Cavanagh’s dissent emphasizes that a stare decisis analysis should begin with the presumption that upholding precedent is the preferred course of action and that “when our caselaw concludes that the Michigan Constitution provides greater protection to our citizens than that provided by the federal Constitution,... ‘this Court should be required to show a compelling reason to depart from [that] past precedent.’ ” Post at 279 (alteration in original) (citation omitted). We agree that precedent should not be lightly overruled, and that a presumption should generally obtain in favor of upholding precedent, although we do not understand why particular precedents that have interpreted our Constitution in a manner different than similar language in the federal constitution should give rise to any special rule of stare decisis. In his dissent, Justice Cavanagh disagrees with the conclusion that Bender “impingets] on the effectiveness of law enforcement,” instead noting that “it does not appear that Michigan’s law enforcement has suffered from a serious inability to effectively enforce the law in the 18 years since Bender was decided.” Post at 283. However, as the prosecutor explained at oral argument, Bender violations frequently arise, and many of the negative effects of Bender are not obviously seen, but nonetheless exist, because “[b]y following Bender, confessions are never made so there’s never the motion to suppress ... or the case is never solved so charges are never filed.... [And] plea bargains are entered into that otherwise should not be, hut have to be because of a Bender issue.”
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Viviano, J. This case involves two related statutory schemes: the William Van Regenmorter Crime Victim’s Rights Act (CVRA) and Michigan’s general restitution statute. The issue is whether these statutes authorize courts to order a defendant to pay restitution for the reasonable travel expenses that victims incur while securing their stolen property and attending restitution hearings. We conclude that the statutes do authorize such payments because they require courts to order full restitution, i.e., restitution that is complete and maximal. Therefore, in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals on this issue and remand this case to the Cheboygan Circuit Court for reinstatement of the original restitution order. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Defendant, Chad James Garrison, stole four snowmobiles and two trailers from vacation homes in Cheboygan County. He pleaded guilty to one count of larceny of property valued at $1,000 or more, but less than $20,000, in violation of MCL 750.356(1) and (3)(a), as a second-offense habitual offender. While the case was pending, the three victims of defendant’s theft traveled back and forth from their primary residences in order to secure their stolen property and attend a restitution hearing. At the hearing, the victims testified that they had incurred travel expenses related to these trips in the cumulative amount of $1,125. The sentencing court included $977 of this amount in its restitution order over defense counsel’s objection. Defendant appealed, and the Court of Appeals reversed the lower court on this issue. Relying on the reasoning of People v Jones, the Court determined that neither the CVRA nor MCL 769.1a authorizes courts to include victims’ travel expenses in a restitution award. The Court concluded that the sentencing court abused its discretion by doing so in this case. Judge METER dissented from that portion of the majority opinion, arguing instead that, under MCL 780.766(2), sentencing courts have a statutory duty to make victims whole for the losses that criminals cause. Although the applicable restitution statutes do not include victims’ travel expenses in their lists of compensable losses, Judge METER did not view those lists as exhaustive because of the overarching duty created by MCL 780.766(2). The prosecution sought leave to appeal the Court of Appeals’ decision in this Court. On May 3, 2013, we ordered oral argument on the prosecution’s application pursuant to MCR 7.302(H)(1). II. STANDARD OF REVIEW This case presents a question of statutory interpretation. We review such questions de novo. We review the sentencing court’s factual findings for clear error. III. ANALYSIS Our goal in interpreting a statute is to give effect to the intent of the Legislature as expressed in the statute’s language. Absent ambiguity, we assume that the Legislature intended for the words in the statute to be given their plain meaning, and we enforce the statute as written. There are two main statutes that govern restitution in Michigan: MCL 780.766 (part of the CVRA) and MCL 769.1a (the general restitution statute). Both statutes begin by defining “victim” as “an individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime.” The statutes then declare that sentencing courts “shall order” a defendant convicted of a crime to “make full restitution to any victim of the defendant’s course of conduct that gives rise to the conviction or to the victim’s estate.” Several following subsections in the statutes go on to provide detailed instructions regarding how to calculate restitution for various types of injuries. Subsection (3) of each statute pertains to property loss; Subsection (4) of each statute pertains to a victim’s physical or psychological injury, and Subsection (5) of each statute also pertains to bodily injury, including death. We begin our analysis by focusing on the statutes’ requirement that sentencing courts order “full restitution.” The statutes do not define “full restitution,” but the plain meaning of the word “full” is “complete; entire; maximum[.]” Hence, both restitution statutes impose a duty on sentencing courts to order defendants to pay restitution that is maximal and complete. The CVRA and Article 1, § 24 of Michigan’s Constitution were enacted as part of a movement intended to balance the rights of crime victims and the rights of criminal defendants. One aim of these laws was “to enable victims to be compensated fairly for their suffering at the hands of convicted offenders.” The Legislature’s statutory direction to order defendants to pay complete, entire, and maximum restitution effectuates this goal of fair compensation. We acknowledge that in both MCL 780.766(3) and MCL 769.1a(3), the Legislature gave specific instructions to sentencing courts regarding what must be included in a restitution order when a crime “results in damage to or loss or destruction of property of a victim” and that these subsections do not mention victims’ travel expenses. However, this does not alter our conclusion that sentencing courts are authorized to include such costs in restitution awards. We read Subsections (3) of MCL 780.766 and MCL 769.1a as complementary to the broad mandate for complete restitution set out in their respective prior subsections, not contradictory. Subsections (3) tell courts how to evaluate specific types of losses when they occur. But nothing in the text of the statutes indicates that courts may only award restitution for the types of losses described in those subsections. On the contrary, as explained above, the Legislature unambiguously instructed courts to order restitution that is “full,” which means complete and maximal. Therefore, we conclude that these subsections do not contain an exhaustive list of all types of restitution available under Michigan law for victims who suffer property damage or loss. Our conclusion that Subsections (3) to (5) are not exhaustive is also consistent with the CVRA’s definition of “victim” for purposes of restitution, which includes those who suffer financial harm as the result of the commission of a crime. Not all crime victims suffer property damage, personal injury, or death. But many of these otherwise unharmed victims must travel to reclaim property, identify perpetrators, or otherwise participate in the investigatory process in the aftermath of a crime. These travels impose a real financial burden on victims in the form of transportation expenses. If we treated Subsections (3) to (5) as excluding those losses, we would not give effect to the connection that the Legislature made between the financial harm that a person suffers and that person’s status as a victim within the provisions of the CVRA. The dissent argues that “ [i]t would have been pointless for the Legislature to have gone through this additional effort to provide specific guidance concerning restitutable costs” if the Legislature had already given sentencing courts broad authority to award restitution for any actual losses by using the words “full restitution.” We disagree. Even in view of the broad grant of authority from Subsection (2) of MCL 780.766 and MCL 769.1a, the specific instructions in Subsections (3) and following subsections prevent courts from overlooking common types of losses. They also promote consistency among different courts and cases by ensuring that judges use the same criteria when calculating the value of these key losses. Hence, our interpretation of the statutes does not make Subsections (3) and following “pointless.” In reaching this conclusion, we are mindful of MCL 780.766b, which expressly authorizes courts to order defendants convicted of human-trafficking offenses to pay restitution for transportation costs incurred by victims. The dissent posits that because the Legislature thought it was necessary to mention transportation costs in the human-trafficking statute, it must not have thought that the other restitution statutes authorized courts to order restitution for those expenses. However, a closer reading of MCL 780.766b shows that this is not so. MCL 780.766b(c)(i) and (ii) authorize courts to order restitution for lost wages and child-care expenses in human-trafficking cases, but those same expenses were already authorized under MCL 780.766(4)(c) and (e) for any crime that causes physical or psychological injury. Hence, the Legislature was not expanding the restitution authority of sentencing courts in MCL 780.766b. Instead, it appears the Legislature was ensuring that sentencing courts did not overlook types of losses that were likely to be common in the human-trafficking context. We are likewise unpersuaded by the dissent’s use of the canon expressio unius est exclusio alterius, which states that the express mention of one thing implies the exclusion of other similar things. The statute does not entitle the parents of victims or third parties who help victims to “full restitution,” so it makes sense to read the lists of possible restitution awards for those parties as exclusive in relation to those parties. By contrast, the Legislature did provide a broad restitution mandate for victims, declaring that courts must order defendants to pay them full restitution, i.e., restitution that is complete and maximal. To read the Legislature’s lists regarding third-party expenses as a limit on the restitution to which victims are entitled would allow the canon of expressio unius to overcome the plain meaning of the words in MCL 780.766(2). In other words, the dissent’s interpretation would mean that third parties could recover restitution for transportation expenses, but that victims, who are entitled to “full restitution,” could not. Although courts must order defendants to pay “full restitution,” their authority to order restitution is not limitless. The statute authorizes restitution only for damage or loss that results from a “defendant’s course of conduct that gives rise to the conviction . . . .” This is in keeping with the statute’s definition of “victim” as “an individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime.” Thus, the losses included in a restitution order must be the result of defendant’s criminal course of conduct. In this case, the Court of Appeals relied on Jones for the proposition that “neither MCL 769.1a nor the CVRA, MCL 780.766, authorizes the sentencing court to order a defendant to pay restitution to reimburse the victim for traveling expenses.” The Court of Appeals erred by relying on Jones because the law has changed since 1988, when Jones was decided. At that time, a victim’s right to restitution was not yet enshrined in our state’s Constitution. In addition, the version of MCL 780.766 in effect when Jones committed his crime stated that a sentencing court “may order . . . that the defendant make restitution . . . .” Likewise, the prior version of MCL 769.1a stated that sentencing courts “may order... a person convicted of any felony or misdemeanor to make full or partial restitution .. . .” Thus, sentencing courts used to have discretion regarding whether to order restitution at all and, if so, in what amount. Now, both statutes state that sentencing courts “shall order. . . full restitution.” Hence, since Jones, the Legislature has decided that ordering restitution is mandatory, not discretionary, and that a restitution order must reflect the total amount of loss caused by a defendant’s criminal conduct, not some lesser amount that a sentencing court might feel is appropriate. The Court of Appeals erred in this case by relying on precedent that did not account for these important changes in the governing statutes. IV APPLICATION In this case, the victims’ immediate need to recover their property, inventory their losses, and explain their losses in court was a natural consequence of defendant’s criminal activity. Hence, their travel expenses were a direct result of defendant’s criminal course of conduct. The sentencing court’s decision to include these expenses in its restitution order was in keeping with its statutory duty to order defendant to pay “full restitution.” At the restitution hearing, the three victims testified that defendant’s theft forced them to travel a combined distance of 2,250 miles to secure their property and attend the restitution hearing. They multiplied this number by a fiat rate of 50 cents a mile, making their total travel-expenses claim $1,125. The court apparently discredited some portion of the victims’ testimony, but found the rest believable, and included $977 of the claimed $1,125 in its restitution order. Defendant does not identify any evidence that shows that the sentencing court’s factual finding was clearly erroneous. Therefore, the Court of Appeals erred by reversing the sentencing court and remanding this case for a redetermination of restitution. V CONCLUSION Consistent with its statutory duty to order “full restitution,” the sentencing court in this case properly included the victims’ travel expenses in its restitution order. Accordingly, in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals on this issue and remand this case to the Cheboygan Circuit Court for reinstatement of the original restitution order. Young, C.J., and Cavanagh, Kelly, and Zahra, JJ., concurred with Viviano, J. MCL 780.751 et seq. MCL 769.1a People v Jones, 168 Mich App 191; 423 NW2d 614 (1988). People v Garrison, unpublished opinion per curiam of the Court of Appeals, issued December 20, 2012 (Docket No. 307102), p 2. Id. at 1-2 (Meter, J., dissenting). People v Garrison, 493 Mich 1015 (2013). People v Kolanek, 491 Mich 382, 393; 817 NW2d 528 (2012). People v Osantowski, 481 Mich 103, 111; 748 NW2d 799 (2008). See People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). People v Koonce, 466 Mich 515, 518; 648 NW2d 153 (2002). The CVRA is divided into three articles. Article 1, MCL 780.751 through MCL 780.775, addresses felony convictions and contains the provision at issue in this case. Article 2, MCL 780.781 through MCL 780.802, addresses various juvenile offenses, and Article 3, MCL 780.811 through MCL 780.834, addresses convictions for various misdemeanors. MCL 780.794(2) and MCL 780.826(2) have language regarding restitution similar to that in MCL 780.766(2). MCL 780.766(1) (emphasis added). As used in MCL 780.766, “crime” means a felony. MCL 780.752(l)(b). See note 11 of this opinion. MCL 769.1a replaces the word “crime” with the words “felony, misdemeanor, or ordinance violation.” MCL 769.1a(l)(b). MCL 769.1a(2); MCL 780.766(2). MCL 769.1a(3); MCL 780.766(3). MCL 769.1a(4); MCL 780.766(4). MCL 780.766(5) refers to a bodily injury that results in death or serious impairment of a body function, while MCL 769.1a(5) refers to only the former. MCL 769.1a(2); MCL 780.766(2). Random House Webster’s College Dictionary (2001). See Van Regenmorter, Crime Victims’ Rights — A Legislative Perspective, 17 Pepperdine L R 59, 77 (1989). People v Peters, 449 Mich 515, 526; 537 NW2d 160 (1995). The dissent disagrees, arguing, “If ‘full restitution’ simply means restitution that is ‘maximal and complete,’ without reference to the adjacent statutory language purporting to define the term, there would have been no need for the Legislature to further specify [at the end of Subsection (2) of MCL 780.766] that courts shall order the restitution required ‘under this section.’ ” We find this argument unpersuasive. In full, the sentence that contains the phrase on which the dissent relies reads as follows: "For an offense that is resolved by assignment of the defendant to youthful trainee status, by a delayed sentence or deferred judgment of guilt, or in another way that is not an acquittal or unconditional dismissal, the court shall order the restitution required under this section.” MCL 780.766(2). This sentence makes it clear that courts must order “full restitution” even in certain cases in which the defendant has not been convicted of a crime. It does not state that sentencing courts may order only the specific restitution described in Subsections (3), (4), and (5). Furthermore, the subsection that follows in the statute begins with language that is permissive, not restrictive. It states that a court shall require a defendant to do “1 or more of the following, as applicable[.]” MCL 780.766(3); MCL 769.1a(3) (providing that the court “may require that the defendant do 1 or more of the following, as applicable”). It does not state that a court may include only those amounts. MCL 780.766(1). The dissent takes issue with our conclusion that the statute “means that ‘full restitution’ must be awarded.” This is curious because the CVRA itself declares that the “court shall order ... that the defendant make full restitution . .. .” MCL 780.766(2). In holding that this statute actually means what it says, we give effect to the intent of the Legislature. MCL 780.766b(c)(iii). See MCL 780.766(4)(c) (authorizing courts to order the defendant to “[rjeimburse the victim or the victim’s estate for after-tax income loss suffered by the victim as a result of the crime”) and MCL 780.766(4)(e) (authorizing courts to order the defendant to “[play an amount equal to the reasonably determined costs of homemaking and child care expenses actually incurred and reasonably expected to be incurred as a result of the crime”). Bianchi v Auto Club of Mich, 437 Mich 65, 72; 467 NW2d 17 (1991). MCL 780.766(2). MCL 780.766(1) (emphasis added). Garrison, unpub op at 2. MCL 780.766(2), as enacted by 1985 PA 87 (emphasis added). “May” was changed to “shall” by 1993 PA 341. MCL 769.1a(l), as added by 1985 PA 89 (emphasis added). “May” was changed to “shall” by 1993 PA 343. The reference to “partial” restitution was deleted by 1996 PA 560. People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011).
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ZAHRA, J. As long as there have been debts, there have been people tasked with collecting them. To regulate the collection industry in Michigan, the Legislature passed a licensing requirement in 1980. This statutory package required collection agencies to obtain licenses and included statutes governing licensees’ permissible actions throughout the collection process. For many years, the collection industry involved two players: the creditors and the collection agents that they hired to collect debts. But in the late 1990s, as the collection industry evolved, a middleman emerged. These middlemen — known as forwarders or forwarding companies — operate as intermediaries between creditors and local collection agents. The forwarding companies’ business model involves obtaining assignments of unpaid accounts from creditors and then allocating the collection of those accounts to local collection agents. The forwarding companies do not, however, contact debtors themselves. This case requires us to determine whether forwarding companies fall within the statutory definition of collection agencies. We conclude that they do. The statutory definition of a “collection agency” includes “a person directly or indirectly engaged in soliciting a claim for collection.” In the context of this statute, soliciting a claim for collection refers to the act of asking a creditor for any unpaid accounts on which the collection agency may pursue payment. The forwarding companies therefore come within the definition of collection agency when they contact creditors asking for debts to allocate to local collection agents. Accordingly, we vacate Part III(B) of the Court of Appeals judgment and remand this case to the circuit court for further proceedings not inconsistent with this opinion. We do not retain jurisdiction. I. FACTS AND PROCEEDINGS Plaintiff George Badeen, a licensed collection agency manager, owns and operates Midwest Recovery and Adjustment, Inc., a licensed collection agency doing business in Michigan. The primary business of Midwest Recovery is repossessing automobiles when it is assigned a delinquent account by a financing company. This dispute’s origins lie in the shifting landscape of collection practices. In the past, when a creditor needed a debt collected or something repossessed, it would contact and retain a collection agent wherever the debtor was located. But the business model has changed with the introduction of forwarding companies. Now forwarding companies act as middlemen between the lenders and the local collection agents. The forwarding companies operate nationwide, and when a creditor needs a collection it contracts with a forwarding company, which, in turn, allocates the collection to a collection agent in the appropriate location. The forwarding companies maintain networks of collection agents and negotiate favorable rates that save creditors money and allow the forwarding companies to make a profit. Plaintiffs allege that this business model negatively affects licensed local collection agents. Badeen, on behalf of himself and other licensed collection agents and collection agencies in Michigan, filed a class action against the lenders and forwarding companies doing business in Michigan. He alleged that the forwarding companies were acting as collection agencies under Michigan law but were doing so without a license in violation of MCL 339.904(1). The lenders that hired the forwarding companies, in turn, were allegedly violating Michigan law by hiring unlicensed collection agencies in contravention of MCL 445.252(s). Defendants, Badeen argued, injured the members of the plaintiff class by impeding their business while not complying with Michigan law. Badeen argued that the forwarding companies “solicit[ed] a claim for collection” when they contacted creditors for unpaid accounts to allocate to local collection agents, thereby satisfying the statutory definition of collection agencies and requiring licensure. In the circuit court, defendants moved for summary disposition, arguing that the forwarding companies did not satisfy the definition because soliciting a claim for collection referred to asking the debtor to pay his or her debt, which the forwarding companies did not do. The circuit court agreed and granted defendants’ motion for summary disposition. The Court of Appeals affirmed the circuit court’s decision, holding that “the phrase ‘soliciting a claim for collection,’ found in MCL 339.901(b), means requesting the debtor to fulfill his or her obligation on the debt.” Badeen sought leave to appeal in this Court. We directed the Clerk of the Court to schedule oral argument on whether to grant the application or take other action and asked the parties to address “whether the defendant forwarding companies engage in ‘soliciting a claim for collection’ and therefore are ‘collection agencies]’ as defined by MCL 339.901(b).” II. STANDARD OF REVIEW AND RULES OF STATUTORY INTERPRETATION A statutory interpretation issue like the meaning of “soliciting a claim for collection” is a question of law that we review de novo. The primary goal of statutory interpretation is, of course, to give effect to the Legislature’s intent. The focus of our analysis must be the statute’s express language, which offers the most reliable evidence of the Legislature’s intent. When construing a statutory phrase such as the one at issue in this case, we must consider it in the context of the statute as a whole. “Although a phrase or a statement may mean one thing when read in isolation, it may mean something substantially different when read in context.” When reviewing a statute, courts should avoid a construction that would render any part of the statute surplusage or nugatory. III. STATUTORY BACKGROUND Article 9 of the Occupational Code requires a person to apply for and obtain a license before operating a collection agency or commencing in the business of a collection agency. The definition of “collection agency” is a person directly or indirectly engaged in soliciting a claim for collection or collecting or attempting to collect a claim owed or due or asserted to be owed or due another, or repossessing or attempting to repossess a thing of value owed or due or asserted to be owed or due another arising out of an expressed or implied agreement.[ ] Additionally, “claim” or “debt” means “an obligation or alleged obligation for the payment of money or thing of value arising out of an expressed or implied agreement or contract for a purchase made primarily for personal, family, or household purposes.”* IV ANALYSIS The forwarding companies satisfy the statutory definition of a collection agency. In MCL 339.901(b), “soliciting a claim for collection” refers to the act of asking a creditor for unpaid debt that the collection agency can pursue. “Solicit” is defined as “to try to obtain by earnest plea or application.” The statute defines “claim” as “an obligation . . . for the payment of money or thing of value.” “For” is defined as “with the object or purpose of.” And “collection” is “the act of collect ing.” Combining these definitions, “soliciting a claim for collection” means to try to obtain an obligation with the object or purpose of engaging in the act of collecting. Unfortunately, applying these dictionary definitions does not end our inquiry because the solicitation could still be directed at the debtor or the creditor depending on how the term “obligation” is understood. An obligation for the payment of money can be understood in two ways. On the one hand, a debtor has an obligation in the sense that he or she must pay the creditor the sum of money owed. But on the other hand, a creditor holds all of its debtors’ obligations. Thus, the statutory language, without further context, could produce a conclusion that “soliciting a claim for collection” means either asking a debtor to pay his or her debts or asking a creditor for any unpaid debts that it needs collected. Looking at the statute as a whole and applying the strictures of statutory interpretation leads to a conclusion that “soliciting a claim for collection” refers to asking a creditor for any unpaid debts that the collection agency may pursue. Interpreting “soliciting a claim for collection” as asking the creditor for any unpaid debts to pursue is the only construction that avoids rendering the subsequent portions of the definition redundant. Defendants suggest that soliciting a claim for collection refers to asking the debtor to fulfill his obligation. But this construction would be subsumed by the very next definition of “collection agency” — a person engaged in “collecting or attempting to collect a claim owed or due.” Surely asking a debtor to pay his or her debts constitutes an “attempt^ to collect.” Put another way, under defen dants’ construction, “soliciting a claim for collection” would have no meaning not covered by “attempting to collect a claim owed or due.” And no meaningful line can be drawn between asking a debtor to pay and attempting to collect the debt that would allow defendants’ interpretation could be salvaged. In short, defendants’ construction of MCL 339.901(b) violates the rule of statutory interpretation counseling against a construction that renders any part of a statute surplusage or nugatory. The narrative arc of MCL 339.901(b) suggests that “soliciting a claim for collection” means contacting the creditor regarding any unpaid claims that the collection agency can pursue. Taken together, the three acts that render a person a collection agency — soliciting a claim for collection, attempting to collect, and actually collecting the debt — make up the entire continuum of the debt-collection process. The first step that a collection agency takes is contacting creditors to inquire about any unpaid debts that the collection agency can pursue on the creditors’ behalf. Then, the collection agency attempts to collect the debt. Finally, the collection agency, if successful, actually collects the debt. Therefore, the Legislature’s apparent desire to impose regulation on the actors in the debt-collection process from beginning to end is best served by our understanding of “soliciting a claim for collection.” The actions that the Occupational Code prohibits a licensed collection agency from engaging in also lend support to our interpretation of “soliciting a claim for collection.” MCL 339.915 and MCL 339.915a list acts that a licensee shall not commit. According to MCL 339.915a(f), a licensed collection agency is prohibited from “[soliciting, purchasing or receiving an assignment of a claim for the sole purpose of instituting an action on the claim in court.” This prohibition necessarily assumes that a person would be a collection agency, and therefore a licensee, when he or she solicits an assignment of a claim for the purpose of instituting an action on the claim in court. Defendants’ construction of “soliciting a claim for collection” would render this prohibition meaningless. It makes no sense to say that a person is not a collection agency, and therefore need not obtain a license, until the person contacts a debtor when the Occupational Code regulates collection-agency conduct that occurs before any contact is made with a debtor. Our interpretation, on the other hand, brings a person within the definition of “collection agency” at the precise time that the prohibition in MCL 339.915a(f) comes into play — when the person solicits the claim from the creditor. Consistent with our interpretation is the fact that this Court has described the conduct of contacting a creditor regarding unpaid debts as soliciting claims for collection. In Bay County Bar Association v Finance System, Inc, we described the defendant’s action of asking creditors for unpaid claims as “soliciting] claims for collection.” And ours is not the only court to use some version of the phrase “soliciting a claim for collection” to refer to the conduct of asking a creditor for unpaid debts to pursue; rather, our interpretation reflects the common understanding of the language at issue. Our own previous use of the language at issue and this extraterritorial caselaw consistent with our use are not dispositive, but they demonstrate our interpretation’s satisfaction of the Legislature’s command that “words and phrases shall be construed and understood according to the common and approved usage of the language.” In contrast, defendants’ understanding of the phrase — that “soliciting a claim for collection” means asking the debtor to pay his or her debts — runs contrary to the common understanding. Defendants argue that forwarding companies should not be considered collection agencies because their lack of contact with the debtors takes them outside the intended scope of the Occupational Code’s regulation. The forwarding industry did not exist in 1980 when the Legislature passed the statutes at issue in this case, but it does not follow that the forwarding companies must be exempt from regulation. The meaning of the statutory language has not changed, and any person that falls under that language is considered a collection agency. We are sympathetic to the fact that the forwarding companies are included in this language even though the Legislature could not have known when it defined collection agencies that the forwarding industry would come to exist. But any revision of the statutory language must be left to the Legislature. Put another way, our concern is not whether forwarding companies, by virtue of their unique business model, should be considered collection agencies; this Court may only decide whether forwarding companies satisfy the existing statutory definition. The Legislature might wish to consider revising the definition of “collection agency” in the future. But under existing law, forwarding companies fall within the statutory definition of “collection agency,” and this Court will not strain the statute’s language just to exempt forwarding companies from the definition. V PROCEEDINGS ON REMAND Ordinarily, a collection agency — like defendant forwarding companies — is subject to the Occupational Code’s licensing requirements. Because the circuit court found its interpretation of the definition of “collection agency” dispositive, it expressly disclaimed any decision regarding defendants’ other arguments in their motions for summary disposition, including an argument pertaining to the applicability of MCL 339.904(2). Specifically, the circuit court stated: “Defendants have presented several other arguments . . . including. . . potential issues with regard to the regulation of interstate commerce. Although the court notes that relief may be justified based on these arguments as well, the court finds it unnecessary to address these arguments . . . .” Because the circuit court has not considered defendants’ other arguments, we remand this case to the circuit court for further proceedings not inconsistent with this opinion. Additionally, plaintiffs filed a motion to supplement the record shortly before this Court heard arguments in the case. The evidence attached to that motion did not play a role in this Court’s determination of the statutory issue at hand. We therefore deny the motion, but we do so without prejudice to plaintiffs’ ability to present the evidence to the circuit court in a properly filed motion on remand. VI. CONCLUSION The forwarding companies satisfy the definition of “collection agency” in MCL 339.901(b) because they solicit claims for collection when they contact creditors seeking unpaid debts to allocate to local collection agents. Our interpretation of the phrase “soliciting a claim for collection” is required by the express statutory language and the maxims of statutory interpretation. Ours is the only interpretation of the phrase “soliciting a claim for collection” that avoids rendering another provision of the definition of “collection agency” nugatory. Our interpretation is also consistent with the common understanding of what it means to solicit a claim for collection. Accordingly, we vacate Part III(B) of the Court of Appeals’ judgment and remand this case for proceedings consistent with this opinion. We do not retain jurisdiction. Young, C.J., and Cavanagh, Markman, Kelly, McCormack, Viviano, JJ., concurred with Zahra, J. See Cicero, The Verrine Orations, II.13 trans L. H. G. Greenwood (Harvard University Press (1928)) (describing tax collectors in ancient Rome). MCL 339.901 et seq. MCL 339.901(b). Badeen v PAR, Inc, 300 Mich App 430, 444; 834 NW2d 85 (2013). Badeen v PAR, Inc, 495 Mich 921 (2014). Klooster v City of Charlevoix, 488 Mich 289, 295-296; 795 NW2d 578 (2011). G C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003). Omelenchuk v City of Warren, 466 Mich 524, 528; 647 NW2d 493 (2002), quoting Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992). MCL 339.904(1). MCL 339.901(b). MCL 339.901(a). Random House Webster’s College Dictionary (1997). MCL 339.901(a). Random House Webster’s College Dictionary (1997). id. Indeed, an “obligation” can be the indebtedness itself or evidence of the indebtedness. Id. Importantly, the phrases in MCL 339.901(b) defining a collection agency are separated by the disjunctive “or.” Thus, a person need not engage in all phases of the collection process to satisfy the statutory definition. Rather, a person need only engage in one of the enumerated actions to satisfy the definition. So defendant forwarding companies satisfy the definition despite never directly collecting or attempting to collect debts because they solicit claims for collection. Because it is not essential to our resolution of this case, we express no opinion regarding whether the forwarding companies indirectly collect or attempt to collect debts when they contract with a local collection agency. See MCL 339.901(b) (“ ‘Collection agency’ means a person directly or indirectly engaged in soliciting a claim for collection or collecting or attempting to collect a claim ....”) (emphasis added). Bay Co Bar Ass’n v Fin Sys, Inc, 345 Mich 434, 436; 76 NW2d 23 (1956). This caselaw from other jurisdictions employing the same understanding of what it means to solicit a claim for collection shows that our interpretation is consistent with the common understanding of that phrase. See LeBlanc v Unifund CCR Partners, 601 F3d 1185, 1198 (CA 11, 2010) (“Unifund, as a debt collector, requests or seeks new clients from other creditors and then attempts to gain business by acquiring charged off consumer debt accounts.. . . Accordingly, we find that Uni-fund ‘solicits’ consumer debt accounts.”); Nelson v Smith, 107 Utah 382, 392; 154 P2d 634 (1944) (“When the defendants solicit the placement of claims with them for collection, they are asking third parties to allow them to render the service of collecting the claim”); Missouri ex rel McKittrick v C S Dudley & Co, 340 Mo 852, 863; 102 SW2d 895 (1937) (“[Rjespondent, a corporation, solicits the claims and turns them over to an attorney to institute legal proceedings to enforce the collection of these claims ....”); Washington State Bar Ass’n v Merchants’ Rating & Adjusting Co, 183 Wash 611, 615; 49 P2d 26 (1935) (“[Ujpon complying with the condition imposed, a person, firm, association, or copartnership may. .. engage in the business of soliciting the right to collect any account....”); J H Marshall & Assoc, Inc v Burleson, 313 A2d 587, 591 (DC, 1973) (“[Appellant] publicly solicits accounts for collection and advertises ‘no charge unless we collect’ ”); New Mexico ex rel Norvell v Credit Bureau of Albuquerque, Inc, 85 NM 521, 524; 514 P2d 40 (1973) (“One of [the defendant’s] principal purposes is the solicitation of claims for collection. The claims are taken pursuant to an agreement between the creditor and the [defendant].”); West Virginia ex rel Frieson v Isner, 168 W Va 758, 773; 285 SE2d 641 (1981) (quoting Nelson in discussion of the transaction between the collection agency and the creditor); Thibodeaux v Creditors Servs, Inc, 191 Colo 215, 217; 551 P2d 714 (1976) (“Section 123 of [the collection agency licensing] statute provides that a ‘licensee can solicit claims for collection, take assignments thereof and pursue the collection thereof with necessary collection procedure.’ ”); Streedbeck v Benson, 107 Mont 110, 112; 80 P2d 861 (1938) (“[I]t is alleged that plaintiff operates a collection agency, solicits delinquent accounts, receives the assignment thereof, and attempts by various means and methods to collect the same....”); Masoni v San Francisco Bd of Trade, 119 Cal App 2d 738, 739-740; 260 P2d 205 (1953) (“When the Board became aware that somebody was indebted to various creditors it invited said creditors to meet with the Board at its offices and caused those that came to elect a creditors’ committee, and said creditors’ committee to adopt a resolution authorizing the Board to solicit from all creditors assignments of their claims to an agent of the Board, granting said assignee the right to bring action for collection of said claims, for which collection a fee was charged to the creditors.”); Collection Ctr; Inc v Wyoming, 809 P2d 278, 279 (Wyo, 1991) (quoting Wy Stat Ann 33-11-114, which states, in part, “[A]ny licensee can solicit claims exclusively for the purpose of collection ... by suit or otherwise, and for such purpose, shall be deemed to be the real party in interest in any suit brought upon such assigned claim”); Bryce v Gillespie, 160 Va 137, 145; 168 SE 653 (1933) (“It is a matter of common knowledge that in recent years there has developed a form of business designated collection agencies... . The ethics of the legal profession prevent its members from soliciting business. There is no such restraint upon these collection agencies. On the contrary, they actively solicit claims for collection and numerous claims of doubtful value ....”). MCL 8.3a. See Grange Ins Co v Lawrence, 494 Mich 475, 493; 835 NW2d 363 (2013) (“Normally, this Court will accord an undefined statutory term its ordinary and commonly used meaning.”). Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000) (“Because our judicial role precludes imposing different policy choices than those selected by the Legislature, our obligation is, by examining the statutory language, to discern the legislative intent that may reasonably be inferred from the words expressed in the statute.”). MCL 339.904(1). MCL 339.904(2) provides that a collection agency need not obtain a license “if the person’s collection activities in this state are limited to interstate communications.” We express no opinion regarding the appli cability of this exemption to defendant forwarding companies at issue; instead, we leave the applicability of MCL 339.904(2) for the trial court to address in the first instance.
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YOUNG, C.J. Michigan’s Use Tax Act (UTA) imposes a 6% tax on a consumer’s use, storage, and consumption of all tangible personal property in Michigan. The UTA exempts the use of property from imposition of the use tax when “the [sales] tax was due and paid on the retail sale to a consumer.” Concurrently, Michigan’s General Sales Tax Act (GSTA) imposes a 6% tax on a retailer’s gross proceeds, to be remitted by the retailer to the Department of Treasury (the department).* *** At issue before this Court is whether a purchaser and user of tangible personal property may avail itself of the use tax exemption when it is unable to prove payment of sales tax, either by itself to the retail seller at the point of sale or by the retail seller to the department. The burden of proving entitlement to the exemption rests on the party asserting the right to the exemption. Under the plain language of the use tax exemption, MCL 205.94(l)(a), we hold that when the retail seller does not admit that sales tax was collected or paid on a particular sale of tangible personal property, the user of that property must show that it paid sales tax on the purchase of that property before the user can claim an exemption from the use tax. Accordingly, we reverse the portion of the Court of Appeals’ decision that held that the use tax can never be levied on property if the purchase of that property was merely subject to sales tax. FACTS AND PROCEDURAL HISTORY Plaintiff Andrie Inc. is a Michigan corporation engaged in marine construction and transportation. Andrie’s marine transportation division transports asphalt and other products throughout the Great Lakes to customers in the Midwest and Canada using tugboats and barges. Andrie purchases fuel and other supplies for its business, some of which are purchased in Michigan from Michigan sellers. The department conducted a use tax audit of Andrie covering November 1,1999, through July 31, 2006. The department’s auditor reviewed Andrie’s purchases of tangible items, including the in-state fuel and supply purchases. Where the auditor determined an item was subject to use tax, the auditor requested that Andrie provide proof that sales tax was paid. If Andrie produced a receipt showing that it had paid sales tax to the retail seller, the department applied the exemption in MCL 205.94(l)(a) and did not assess use tax. But if Andrie could not prove that sales tax had been paid, either by itself or the retail seller, the department assessed Andrie the use tax for that property. The department ultimately imposed use tax on fuel and supply purchases Andrie made in Michigan, from Michigan-based retail sellers, where the invoice did not list sales tax as a separate line item, i.e., where Andrie was unable to prove that sales tax had been paid on those transactions as required by MCL 205.94(l)(a). Notably, the department concedes that it is unaware whether any of these Michigan retail sellers had, in fact, remitted sales tax to the department. As a result of the audit, the department determined that Andrie understated its use tax in the amount of $398,755.00. Andrie paid the assessments under protest and filed suit in the Court of Claims. In its complaint, Andrie alleges that it was entitled to rely on an alleged requirement of the GSTA that the sales tax be included in the price of the goods purchased regardless of whether the sales tax was separately stated. The Court of Claims held that Andrie was entitled to a partial refund of use tax for those purchases that were subject to sales tax. That court reasoned that Andrie was entitled to a presumption that sales tax is included in the price of goods purchased, and therefore Andrie did not have the obligation to provide proof that the retail sellers remitted sales tax to the department. The department appealed. The Court of Appeals affirmed on this issue, holding that “the mere fact that a transaction is subject to sales tax necessarily means that the transaction is not subject to use tax.” It further stated that, “[bjecause the retailer has the ultimate responsibility to pay any sales tax, it is erroneous to place a duty on the purchaser to show that the sales tax was indeed paid to the state. Thus, the transactions are not subject to use tax, and the trial court properly held in favor of plaintiff on this issue.” STANDARD op review Statutory interpretation is a question of law that we review de novo. When interpreting a statute, courts must “ascertain the legislative intent that may reasonably be inferred from the words expressed in the statute.” This requires us to consider “the plain meaning of the critical word or phrase as well as 'its placement and purpose in the statutory scheme.’ ” DISCUSSION As a preliminary matter, we note that the use and sales taxes are complementary and supplementary. Contrary to the Court of Appeals’ conclusion, their potential applications are not mutually exclusive. The two taxing statutes relate to entirely separate taxable events: the use and the sale of tangible personal property. The UTA imposes a 6% tax on the use, storage, and consumption of all tangible personal property in Michigan: There is levied upon and there shall be collected from every person in this state a specific tax for the privilege of using, storing, or consuming tangible personal property in this state at a rate equal to 6% of the price of the property or services specified in section 3a or 3b.[ ] Meanwhile, the GSTA imposes a 6% tax on the sale of all tangible personal property in Michigan: [T]here is levied upon and there shall be collected from all persons engaged in the business of making sales at retail, by which ownership of tangible personal property is transferred for consideration, an annual tax for the privilege of engaging in that business equal to 6% of the gross proceeds of the business, plus the penally and interest if applicable as provided by law, less deductions allowed by this act.[ ] Absent an exception, tangible personal property sold and used in Michigan is subject to both use and sales tax. It is plain to see from the text of each taxing statute that they are capable of being levied upon the same property, as long as the respective predicate taxable events (i.e., use and sale) take place. Just as each tax is triggered by a separate taxable event, the legal responsibility for each tax falls upon a separate entity. The legal responsibility for the use tax falls solely on the consumer. By contrast, the legal responsibility for the sales tax falls on the retail seller, with the tax being levied for the privilege of making sales at retail. The retail seller is authorized — but not obligated — to pass the economic burden of the sales tax by collecting the tax at the point of sale from the consumer. But whether the consumer remits sales tax to the retail seller or the seller pays the sales tax from another source, the seller is responsible for remitting the sales tax to the department, which tax is calculated as a percentage of the seller’s gross proceeds in a taxable period. Although the use and sales taxes potentially apply to the same tangible personal property, a taxpayer otherwise subject to use tax is entitled to an exemption if it complies with any of the conditions delineated by MCL 205.94. One of these exemptions involves payment of the sales tax: (1) The following are exempt from the tax levied under this act...: (a) Property sold in this state on which transaction a tax is paid under the general sales tax act, 1933 PA 167, MCL 205.51 to 205.78, if the tax was due and paid on the retail sale to a consumer.[ ] The exemption statute unambiguously requires payment of the sales tax before it exempts the taxpayer from the use tax. It is not enough that the sales tax was due on the retail sale of the property; rather, sales tax must be both “due and paid” before the exemption applies. Thus, the department properly assessed use tax on in-state purchases where Andrie failed to submit evidence that sales tax was actually paid at the time of sale. Our conclusion that the terms of the use and sales taxes render them capable of being applied to the same property does no violence to the “targeted legislative effort to avoid double taxation.” Pursuant to MCL 205.94(l)(a), payment of the sales tax is mutually exclusive with payment of the use tax, but the same cannot be said of the potential applicability of the respective taxes to a given article of tangible personal property. In case law discussing double taxation, the threat of double taxation was a real consequence of the department’s position; here, double taxation is at best a hypothetical reality, and at worst a straw man. The taxpayer, as the beneficiary of the exemption, has the tools to ensure that it is not double-taxed. It may, as part of its freedom to contract with retail sellers, demand proof at the point of sale that the sales tax was paid. Even if it misses that opportunity (which would be its responsibility alone), after the fact, the taxpayer can request an affidavit from the retailer averring that the tax was either collected at the point of sale or remitted to the department. In short, any double taxation that could occur in this situation is traceable to the taxpayer’s recordkeeping and not, as seen in other cases, the statutory scheme. As an alternative to its argument that the use tax can never apply to property on which sales tax should be paid, Andrie asserts that it is entitled to a presumption that sales tax is included in the prices paid to retailers when its receipts to do not list sales tax as a separate line item. A taxpayer is entitled to the use tax exemption in MCL 205.94(1)(a) when it proves that it paid sales tax to the retail seller. This is true even when the retail seller — who technically bears the legal responsibility for payment of the sales tax — does not remit the tax to the department. However, we hold that a purchaser is not entitled to a presumption that it paid the sales tax at the point of sale. The burden of proving entitlement to an exemption rests on the party asserting the right to the exemption. A presumption of sales tax payment would shift this burden to the department, contrary to established law regarding tax exemptions. At the very least, a purchaser-taxpayer must show that it paid tax to the retail seller, or that the seller remitted the sales tax to the department. Andrie submitted no evidence that it paid sales tax to the retail seller, or that the seller remitted sales tax to the department on that sale. As a result, it did not meet its burden, and it is not entitled to the exemption. Furthermore, in conjunction with the fact that Andrie bears the burden to demonstrate its entitlement to a tax exemption, a presumption that sales tax is always included in an item’s purchase price would violate established canons of statutory interpretation. A statute’s words should not be ignored, treated as surplusage, or rendered nugatoiy. MCL 205.94(l)(a) requires that sales tax be both “due and paid” before property is exempted from the use tax. A presumption that a purchaser paid the sales tax would, in effect, entitle a purchaser to the exemption whenever sales tax is merely due without having to satisfy its burden to show the tax was paid. This would render superfluous the plain language of the requirement in MCL 205.94(1) (a) that sales tax be both “due and paid.” The plain language of the use tax exemption precludes a presumption that sales tax is always paid. Andrie grounds its statutory argument for a presumption of sales tax payment in MCL 205.73(1), which states: A person engaged in the business of selling tangible personal property at retail shall not advertise or hold out to the public in any manner, directly or indirectly, that the tax imposed under this act is not considered as an element in the price to the consumer. This act does not prohibit any taxpayer from reimbursing himself or herself by adding to the sale price any tax levied by this act. In other words, MCL 205.73(1) states that a retail seller may not state or imply that an item’s purchase price does not include sales tax, either as a separate line item or otherwise. Although this restriction on retail sellers’ representations is certainly consistent with Andrie’s proposed presumption that sales tax is always included in an item’s purchase price, it does not compel this Court to recognize such a presumption. MCL 205.73(1) is an advertising statute; its terms do not extend beyond a restriction on retail sellers’ representations to the public. The statute does not purport to define the actual components of an item’s purchase price. Thus, MCL 205.73(1) does not relieve Andrie of its duty to prove that sales tax was paid. In addition to its overbroad reading of the statutory text, Andrie’s argument — that MCL 205.73(1) creates a presumption that sales tax is always included in an item’s purchase price — is premised on the faulty assumption that a retail seller must exclusively use sales revenue to pay its sales tax liability. Were that the case, Andrie might have a point that a purchaser necessarily pays the sales tax at the point of sale; otherwise, the retailer would be unable to remit any sales tax to the department. However, nothing in the GSTA prevents a retail seller from paying its sales tax liability from other sources. Under MCL 205.73(1), a retail seller is “not prohibited” from including sales tax in an item’s price, but this leaves the retail seller the option to shoulder the sales tax burden itself. In that event, the retail seller may remit the tax from its gross proceeds or from another source entirely. Because there is no statutory directive in MCL 205.73(1) directing a retail seller to include sales tax in the price it charges purchasers, the statute fails to establish a presumption that sales tax is always included in an item’s purchase price. This Court applied a nearly identically worded predecessor of MCL 205.73(1) in Swain Lumber Co v Newman Dev Co. In that case, the plaintiff believed it was selling to a purchaser at wholesale (to which no sales tax applied), when in fact the nature of the purchaser’s business meant that the sale was at retail (to which sales tax applied). After the transaction was complete, the nature of the purchaser’s business was discovered, and the department assessed plaintiff the sales tax because the sale was at retail. Plaintiff unsuccessfully sued to recover sales tax from the purchaser. This Court stated: No presumption against [a purchaser] arises from the silence of [a purchaser] as to non-inclusion of sales tax in the price before or at the time of [the purchaser]’s paying the price demanded. [MCL 205.73(1)] creates no liability on the part of the purchaser to pay the tax unless the tax is incorporated in or added to the price and the purchaser accepts the tangible personal property with such understanding.[ ] According to Andrie, Swain Lumber holds that, whenever sales tax is not listed on an invoice, the sales tax was incorporated into the retail price of the goods and thus paid by the purchaser. This is not accurate. Swain Lumber merely reiterates that the legal responsibility for the sales tax falls on the retail seller: if a purchaser does not knowingly agree to pay the tax and the seller fails to include the tax in the sale price, a seller may not claw back a separate sales tax reimbursement at a later date. This conclusion allows for the possibility that sales tax is not incorporated into an item’s sale price. Although a retail seller has a legal obligation to remit sales tax even if it does not affirmatively shift the tax burden to the purchaser, this does not mean that the tax necessarily was paid by the seller such that the use tax exemption in MCL 205.94(l)(a) applies. RESPONSE TO THE DISSENT The dissent fails to defer to the rule of statutory construction precluding surplusage in interpreting the phrase “due and paid,” and instead asks us to apply the use tax exemption whenever sales tax is merely due. To that end, the dissent would reverse the rule that we established unambiguously in Elias Brothers: that the burden to prove entitlement to a tax exemption rests upon the person claiming the exemption. But despite the dissent’s contention, the consumer is not in need of a presumption that the sales tax was paid, because the consumer is able to prove his entitlement to the exemption in every case. The dissent states that the consumer never pays the sales tax because the GSTA “places no duty on a consumer for the payment of the tax.” But the fact that a consumer has no duty to pay the tax does not mean that the consumer has no ability to establish that he is entitled to the exemption. This is supported by statute: MCL 205.73(1) permits the retailer-taxpayer to “reimburs[e] himself or herself by adding to the sale price any tax levied by [the GSTA].” Note that the statute does not merely permit the taxpayer to charge the consumer the value of the tax — a relevant distinction according to the dissent. Rather, MCL 205.73(1) permits the retailer-taxpayer to include the sales tax itself: the retailer may add “tax” “to the sale price.” Therefore, we respectfully disagree that a consumer cannot pay the sales tax for use tax exemption purposes simply because the retail seller is ultimately on the hook for remitting the tax to the department. Accordingly, one can see that the consumer remains fully equipped to obtain the documentation necessary to later claim the exemption. With knowledge of its burden in mind, at the point of sale the consumer can bargain for a receipt that shows the inclusion of sales tax in the purchase price. Alternatively, it may request an affidavit from the retail seller averring that sales tax was included in the sale price or remitted to the department. In either instance, the consumer shows that the sales tax was paid. It is that simple. The dissent emphasizes recordkeeping requirements, i.e., retailers’ mandate to record their sales tax information, as justification that consumers (who are not required to keep such records) are entitled to a presumption of sales tax payment. Recordkeeping requirements exist so that the department may confirm the tax liability of a taxpayer. They do not exist to facilitate a taxpayer’s claim of an exemption. Further, “exemptions are the antithesis of tax equality.” If a mandatory recordkeeping requirement existed in order to facilitate an exemption claim (rather than to facilitate taxation), it would promote exemptions and, in turn, tax inequality. But that would run counter to the reasoning underlying the Elias Brothers rule. Accordingly, recordkeeping requirements are not relevant in determining who has the duty to prove entitlement to an exemption. Of course, the Legislature could have made it less burdensome for the consumer to avail itself of the use tax exemption. However, under Michigan law, a burden exists, and under Elias Brothers that burden is shouldered by the person seeking a tax exemption. Short of ignoring the statutory text of MCL 205.94(l)(a) (“. .. and paid”) or reversing Elias Brothers, the department must prevail in this matter. CONCLUSION In order to be entitled to the exemption from the use tax found in MCL 205.94(l)(a), one must show that the sales tax was both due and paid on the sale of that tangible personal property. The burden of demonstrating entitlement to this tax exemption rests on the taxpayer seeking the exemption. Accordingly, because Andrie has not submitted any evidence that sales tax was paid, Andrie has not carried its burden and is not entitled to the exemption delineated in MCL 205.94(l)(a). We reverse that portion of the Court of Appeals’ judgment which held that the use tax can never be levied on property if the purchase of that property was subject to sales tax. Markman, Kelly, McCormack, and Viviano, JJ., concurred with Young, C.J. CAVANAGH, J. I concur in the result only. MCL 205.91 et seq. MCL 205.93(1). For purposes of this opinion, the use, storage, or consumption of tangible personal property are collectively referred to as “use” of the property MCL 205.94(l)(a). MCL 205.51 et seq. “[T]here is levied upon and there shall he collected from all persons engaged in the business of making sales at retail, by which ownership of tangible personal property is transferred for consideration, an annual tax for the privilege of engaging in that business equal to 6% of the gross proceeds of the business, plus the penalty and interest if applicable as provided by law, less deductions allowed by this act.” MCL 205.52(1). Elias Bros Restaurant v Treasury Dep’t, 452 Mich 144, 150; 549 NW2d 837 (1996). Andrie, Inc v Dep’t of Treasury, 296 Mich App 355, 372; 819 NW2d 920 (2012). Id. (Citation omitted.) In re Investigation of March 1999 Riots in East Lansing, 463 Mich 378, 383; 617 NW2d 310 (2000). Koontz v Ameritech Servs, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1996), quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995). See Elias Bros, 452 Mich at 153. In reaching its conclusion, the Court of Appeals relied upon Elias Bros, 452 Mich at 146 n 1 (“The [UTA] ... covers transactions not subject to the general sales tax.”) (emphasis added). For reasons explained below, this was an inaccurate restatement of the plain language of the UTA and the GSTA, including MCL 205.94(l)(a). Indeed, Elias Bros later acknowledges that “the use tax provisions except property acquired in a transaction in this state on which a sales tax has been paid ....” Id. at 153 n 19 (emphasis added). MCL 205.93(1). MCL 205.52(1). Terco, Inc v Dep’t of Treasury, 127 Mich App 220, 226, 339 NW2d 17 (1983). See MCL 205.52(1); Ammex, Inc v Dep’t of Treasury, 237 Mich App 455, 460; 603 NW2d 308 (1999). Ammex, Inc, 237 Mich App at 460. See also MCL 205.73(1). See MCL 205.52(1). For reasons explained later in this opinion, the fact that a retail seller has a legal obligation to remit sales tax to the department does not mean that the sales tax necessarily was paid on a retail sale to a purchaser under MCL 205.94(l)(a). MCL 205.94(l)(a) (emphasis added). See Elias Bros, 452 Mich at 152. For example, in Elias Bros, if the taxpayer was not given the benefit of the industrial processing exemption to the use tax, MCL 205.94(g), it was a certainty that the taxpayer would pay tax on the components used or consumed in the product’s manufacture and on the end product it sold, contradicting the Legislature’s purpose in enacting the industrial processing exemption. Id. In World Book, Inc v Dep’t of Treasury, this Court addressed the very real risk of subjecting a taxpayer to multiple states’ sales taxes by acknowledging that a retail sale can be consummated in only one state. 459 Mich 403, 411; 590 NW2d 293 (1999), citing Oklahoma Tax Comm v Jefferson Lines, Inc, 514 US 175, 186-87; 115 S Ct 1331; 131 L Ed 2d 261 (1995). This avenue to the exemption in MCL 205.94(l)(a) was conceded by the department at oral argument, and it is consistent with the text of the UTA and GSTA. Admittedly, such affidavit would come at the grace of the retailer. Combustion Engineering v Dep’t of Treasury, 216 Mich App 465; 549 NW2d 364 (1996). Id. Elias Bros, 452 Mich at 150. “Exemption from taxation effects the unequal removal of the burden generally placed on all [taxpayers] to share in the support of.. . government.” Michigan Baptist Homes & Dev Co v City of Ann Arbor, 396 Mich 660, 669-70; 242 NW2d 749 (1976). For that reason, “exemption is the antithesis of tax equality,” id,., which justifies placing the burden of showing entitlement to an exemption on the taxpayer. Robertson v DaimlerChrysler Corp, 465 Mich 732, 748; 641 NW2d 567 (2002). Andrie also argues that the department’s assessments of use tax were unconstitutional, citing Lockwood v Nims, 357 Mich 517; 98 NW2d 753 (1959), which rightly held that a former version of the UTA ran afoul of a constitutional ceiling on sales tax. When Lockwood was before this Court, the Michigan Constitution then stated that “at no time shall the legislature levy a sales tax of more than 3%.” Const 1908, art 10, § 23. Meanwhile, the Legislature enacted a use tax that purported to be levied upon the user; however, via a complicated statutory scheme, the use tax was necessarily collected by the retail seller at the point of sale. See 1937 PA 94, as amended by 1959 PA 263, § 5. Effectively, consumers were paying 1% more than the sales tax ceiling. This Court held that use tax structure to be an impermissible end run around the constitutional sales tax ceiling, and it invalidated that use tax statute. Lockwood does not hold that any use tax necessarily conflicts with a constitutional ceiling on sales tax. Rather, it holds that what is for all intents and purposes a sales tax may not circumvent a sales tax ceiling simply by wearing a “use tax” nametag. Today, responsibility for payment of sales and use taxes is separated, falling upon the retail seller and the user, respectively. Further, if payment of sales tax is proved, MCL 205.94(l)(a) prevents taxation under the use tax, whereas the statute overturned in Lockwood required payment of use tax without exception. Finally, while today’s Constitution still establishes a ceiling on sales tax percentages, the very same section discusses limitations on the use tax, foreclosing any claim that use and sales taxes cannot coexist. See Const 1963, art 9, § 8. For instance, the department enforced MCL 205.73(1) in a 1970 Letter Ruling, admonishing a retail seller for publishing a coupon stating that “no sales tax” would he levied on the sale of cigarettes. Therein, the department stated, “It is quite true that you may not charge sales tax on cigarettes, however, the sale of cigarettes must be included in your [taxable] gross proceeds.” Letter Ruling 70-2 (May 22, 1970) (emphasis added), withdrawn by Revenue Admin Bull 2000-6. At that time, the GSTA applied to the retail sale of cigarettes. Retail sellers could remit their sales taxes from, e.g., past years’ reserves, liquidated assets, assets legally transferred from parent or subsidiary corporations, loans, etc. Further, as sometimes happens, a retailer may understate its sales tax liability or fail to remit the sales tax at all, in violation of its legal obligations under the GSTA. Swain Lumber Co v Newman Dev Co, 314 Mich 437, 441; 22 NW2d 891 (1946). That statute, as set forth in 1933 PA 167, § 23, stated: No person engaged in the business of tangible personal property at retail shall advertise or hold out to the public in any manner, directly or indirectly, that the tax herein imposed is not considered as an element in the price to the consumer. Nothing contained in this act shall be deemed to prohibit any taxpayer from reimbursing himself by adding to his sale price any tax levied hereunder. Swain Lumber, 314 Mich at 441 (emphasis added). In fact, the Michigan Tax Tribunal has rejected the interpretation of Swain Lumber offered by Andrie. In Kruszka v Dep’t of Treasury, 4 MTT 520, 526-527 (Docket No. 88327), issued November 13, 1986, the taxpayer-purchasers claimed that a retail seller’s mere obligation to remit sales tax absolved them of their use tax liability. The tribunal held that, while Swain Lumber and MCL 205.73(1) purport to address a seller’s sales tax liability in a given situation, they do not offer guidance relative to a purchasers’ use tax liability. Quoting Combustion Engineering v Dep’t of Treasury, 216 Mich App 465, 469; 549 NW2d 364 (1996). The thrust of this argument is that, if the dissent is correct and consumer-taxpayers cannot pay the tax to the retailer themselves and thus be certain that they are entitled to the use tax exemption, the exemption is virtually unavailable to the consumer. Adams Outdoor Advertising v East Lansing, 463 Mich 17, 27 n 7; 614 NW2d 634 (2000) (“People are presumed to know the law.”). See generally MCL 205.68; MCL 205.104a. Elias Bros, 452 Mich at 150.
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ZAHRA, J. This case requires the Court to consider the application of Michigan’s Whistleblowers’ Protection Act (WPA) to a contract employee whose contract is not renewed ostensibly because of the employee’s whistle-blowing activities. A contract employee whose term of employment has expired without being subject to a specific adverse employment action identified in the WPA and who seeks reengagement for a new term of employment occupies the same legal position as a prospective employee. The WPA, by its express language, only applies to current employees; the statute offers no protection to prospective employees. 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 rehire for a new term of employment. The plaintiff in this case has no recourse under the WPA because he alleges only that his former employer declined to renew his contract, not that the employer took some adverse action against him during his contractual term of employment. Accordingly, we reverse the Court of Appeals’ contrary decision and remand this case to the circuit court for entry of summary disposition in defendants’ favor. I. FACTS AND PROCEEDINGS The Beecher Metropolitan District (the District) manages water and sewage for a portion of Genesee County. The District has five elected board members and also employs a part-time district administrator who manages District operations on a day-to-day basis. The District has 11 full-time employees who do various maintenance and clerical jobs. The District’s full-time employees operate under a union contract; only the district administrator historically operates under a separate contract with the District. Plaintiff Richard Wurtz began his tumultuous tenure as the district administrator on February 1, 2000, and served until February 1, 2010. Before becoming district administrator, Wurtz was the District’s attorney. In his capacity as attorney, he drafted the contract that would govern his term as district administrator. The contract provided for a 10-year term beginning on February 1, 2000, and ending on February 1, 2010. The board approved the contract and Wurtz became district administrator. Tension between Wurtz and the board developed in May 2008 when Wurtz reported an alleged violation of the Open Meetings Act (OMA) to the Genesee County Prosecutor. In a letter dated May 22, 2008, Wurtz informed the prosecutor that board members Sheila Thorn, Leo McClain, and Jacquelin Corlew — the three individual defendants in this case — had met with a labor attorney outside of a public meeting to discuss retaining the attorney. The prosecutor, however, declined to prosecute. Several months later, Wurtz demanded a benefits increase commensurate with those given to the District’s unionized employees. He told the board that he was the one who filed the OMA complaint and said that he would treat the board’s failure to capitulate as retaliation for his reporting the alleged OMA violations. The board granted Wurtz the increase he desired, with two of the defendant board members voting against his benefits increase and one voting in favor. In early 2009, Wurtz sent a proposal to the board regarding his contract. Wurtz said he could save the District money by reducing his salary and cutting off all of his benefits except life insurance. But the proposal also would have extended Wurtz’s already tumultuous term for an additional 2xk years. A motion to accept Wurtz’s proposal was defeated by a vote of 3 to 2. Thorn, McClain, and Corlew voted against Wurtz’s proposal. Relations between Wurtz and the board further deteriorated in the spring of 2009. The board had plans to attend the American Water Works Association conference in San Diego. Wurtz told the board that he had concerns about the cost of the trip and the manner of reimbursement. He noted several recreational items that he thought it would be inappropriate to subsidize with taxpayer funds. Wurtz nonetheless reimbursed the board for the expenses. Despite having issued the reimbursement checks himself, Wurtz contacted the Genesee County Sheriffs Department and the Flint Journal regarding the board’s trip to San Diego. This resulted in the sheriffs department raiding the District’s office and public outcry about the board members’ actions. Wurtz cooperated with the investigation conducted by the sheriffs department. The board members were criminally charged in connection with the trip, but all were acquitted of wrongdoing or had the charges against them dismissed. Events came to a head in November 2009, several months before Wurtz’s contract was set to expire. At the November 11, 2009 meeting, Wurtz warned the board that he would consider the board’s failure to extend his contract to be retaliation for the criminal investigation. The board, however, refused to heed Wurtz’s warning and voted 3 to 2 not to renew Wurtz’s contract and to begin the search for a new district administrator. The majority once again consisted of Thorn, McClain, and Corlew. Wurtz’s attorney wrote a letter to the board informing it that Wurtz intended to file a claim under the WPA. But the board replied that it would not change its mind, citing other, legitimate reasons for deciding not to renew Wurtz’s contract. The board explained that the tumultuous relationship between Wurtz and the board members far preceded any alleged whistleblowing activities, and furthermore, that it wished to make the administrator job full-time. Wurtz could not hold the position full-time because of his law practice. Despite the total breakdown of the working relationship, the board allowed Wurtz to finish out his contract. Wurtz’s employment with the District expired on February 1, 2010, by the terms of the contract. One essential and undisputed fact bears emphasis: Wurtz suffered no adverse consequences in the context of his self-drafted 10-year contract. He received all of the salary and benefits to which he was entitled, and he was employed as district administrator for each and every day of the agreed-to term. After his employment ended, Wurtz brought suit in Genesee Circuit Court against the District and the three board members who voted not to renew his contract, alleging a violation of the WPA and wrongful termination in violation of public policy. Defendants moved for summary disposition, arguing that Wurtz had not been fired because his contract expired by its own terms. Wurtz argued that his employment was terminated and, further, that summary disposition was premature because discovery was incomplete. But the court agreed with defendants. First, the court dismissed the public policy claim, holding that the WPA provided the exclusive avenue of relief to Wurtz. Then the court concluded that Wurtz could not satisfy all of the WPA’s elements because he had worked through the entirety of his contract and was not discharged. Wurtz appealed the circuit court’s decision to the Court of Appeals, which reversed in a split opinion. The majority concluded that summary disposition was inappropriate because, in its view, an employer’s failure to renew a contract employee’s fixed-term contract satisfied the WPA’s requirement that the employee suffer an adverse employment action. The dissent, on the other hand, would have held as a matter of law that Wurtz could not satisfy the WPA’s elements based on the nonrenewal of a fixed-term contract. Defendants sought leave to appeal in this Court, which we granted. We asked the parties to address “(1) whether the plaintiff suffered an adverse employment action under the [WPA] when the defendants declined to renew or extend the plaintiff’s employment contract, which did not contain a renewal clause beyond the expiration of its ten-year term; and (2) whether there was a fair likelihood that additional discovery would have produced evidence creating a genuine issue of material fact, MCR 2.116(C)(10), if the defendants’ motion for summary disposition had not been granted prior to the completion of discovery.” II. standard of review The interpretation of the WPA presents a statutory question that this Court reviews de novo. The Court also reviews de novo decisions on motions for summary disposition brought under MCR 2.116(C)(10). III. ANALYSIS This case invites the Court to decide whether the WPA applies when an employer declines to renew an employee’s fixed-term contract following alleged whistleblowing by the employee. To answer this question, we first conclude that a contract employee seeking a new term of employment should be treated the same as a prospective employee for purposes of the WPA. The question then becomes whether a spurned job applicant can bring a claim under the WPA. We hold that the WPA, by its express language, has no application in the hiring context. Thus, the WPA does not apply when an employer declines to renew a contract employee’s contract. Absent some express obligation stating otherwise, a contract employee has absolutely no claim to continued employment after his or her contract expires. Rather, the employer must weigh the pros and cons of engaging the applicant for a new employment term, just as an employer must weigh the pros and cons of hiring a person in the first place. And as with any employment decision, the employer can make its decision for good reasons, bad reasons, or no reasons at all, as long as the reasons are not unlawful, such as those based on discrimination. Therefore, in the context of the present case, no relevant difference exists between a new job applicant and a current contract employee seeking a new term of employment. We then ask whether a prospective employee who attempts to blow the whistle on a would-be employer may invoke the WPA’s protections. When interpreting a statute, this Court must, of course, identify and give effect to the Legislature’s intent. The most reliable indicator of the Legislature’s intent is the language of the statute itself. If the statutory language clearly and unambiguously states the Legislature’s intent, then further judicial construction is neither required nor permitted, and the statute must be enforced as written. The relevant provision of the WPA, MCL 15.362, states the following: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. Drawing from the statutory language, this Court has identified three elements that a plaintiff must demon strate to make out a prima facie case that the defendant employer has violated the WPA: (1) The employee was engaged in one of the protected activities listed in the provision. (2) the employee was discharged, threatened, or otherwise discriminated against regarding his or her compensation, terms, conditions, location, or privileges of employment. (3) A causal connection exists between the employee’s protected activity and the employer’s act of discharging, threatening, or otherwise discriminating against the employee. Significantly, as gleaned from the WPA’s express language, the statute only applies to individuals who currently have the status of an “employee.” The Legislature defined an “employee” in the WPA as “a person who performs a service for wages or other remuneration under a contract of hire, written or oral, express or implied.” Noticeably absent from the WPA’s definition of “employee” is any reference to prospective employees or job applicants. And indeed, the actions prohibited under the WPA could only be taken against a current employee. Only an employee could be discharged and only an employee could be threatened or discriminated against regarding his or her compensation, terms, conditions, location, or privileges of employment. Thus, the WPA simply excludes job applicants and prospective employees from its protections. In this regard, the WPA stands in stark contrast to Michigan’s Civil Rights Act (CRA). Whereas the WPA makes no mention of pre-employment conduct, the CRA refers to an employer’s failure to hire or recruit someone: An employer shall not do any of the following: (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.[ ] The same is true of the federal Age Discrimination in Employment Act (ADEA) and Title VII of the federal Civil Rights Act (Title VII). Each of these statutes provides protection during the recruitment and hiring process; the WPA does not. Moreover, whereas the WPA protects “employees,” the CRA, the ADEA, and Title VII protect the broader class of “individuals” from prohibited employer actions. Thus, when discussing the protections afforded prospective employees, any comparison to these antidiscrimination statutes offers little help. In light of this analysis, caselaw applying the antidiscrimination statutes to contract renewals offers no insight into how the WPA should operate in the same situation. For example, consider Leibowitz v Cornell Univ, a case extensively relied on by Wurtz and the Court of Appeals majority, which involved a nontenured professor at Cornell. The professor sued the school for violation of Title VII and the ADEA after it declined to renew her fixed-term contract. The Leibowitz court held that “where an employee seeks renewal of an employment contract, non-renewal of an employment contract constitutes an adverse employment action for purposes of Title VII and the ADEA.” But any reliance on Leibowitz for its application in the WPA context ignores the logic that the court used to reach its conclusion. In fact, the court held that nonrenewal of a contract fell within the antidiscrimination statutes’ reach precisely because the statutes protect new job applicants. But the WPA has no application during the hiring process. The floor underlying the Leibowitz court’s conclusion collapses when attempting to apply Leibowitz to the WPA. While the ADEA and Title VII may apply in the context of a contract renewal, that fact has no bearing on the application of the WPA in the same situation. This Court need not inquire why the Legislature chose to confine the WPA’s protections by the bookends of employment while extending the CRA’s protections to the hiring context. The Legislature elected to craft its legislation that way, and we decline to second-guess the wisdom of the Legislature’s policy decisions. Indeed, any number of policy justifications could be advanced for limiting the WPA’s application to current employees. The mere fact that the Legislature chose to extend the CRA to the hiring context is insufficient to extend the WPA that far too, particularly when the WPA’s statutory language requires the opposite result. Lest today’s holding be misapplied, we find it necessary to mention several things that this opinion does not say. While we hold that the WPA does not apply to decisions regarding contract renewal, we emphasize that the WPA does protect employees working under fixed-term contracts from prohibited employer actions taken with respect to an employee’s service under such a contract. Indeed, the WPA’s definition of “employee” expressly denotes a person working “under a contract for hire.” Thus, when 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. Today’s holding also has no bearing on at-will employees. While an at-will employee cannot maintain any expectation of future employment, the employment continues indefinitely absent any action from the employer. Thus, an at-will employee does not need to reapply for the job for the employment to continue beyond a certain date. Once hired, an at-will employee will not later find himself or herself in the same position as a new applicant. A current at-will employee therefore stands squarely within the WPA’s protections. An employee working under a fixed-term contract, on the other hand, essentially becomes a new applicant when seeking a new term of employment. In sum, we do not base our decision today on whether a person can maintain an expectation of future employment but merely on whether the person falls within the WPA’s protections. At-will employees do; contract employees seeking a new term of employment do not. The WPA’s language governs this case without any additional judicial interpretation. The WPA simply does not extend to the pre-employment context. Because we discern no legal difference between a contract employee seeking a new term of employment and a new applicant, the WPA provides no protection to a contract employee in that context. If a contract employee alleges only that the employer declined to renew the employee’s contract, and not some action taken against the employee with respect to an employee’s service under the contract, the WPA has no application. IV APPLICATION Wurtz cannot show any entitlement to relief under the WPA. Wurtz alleges that the District violated the WPA by deciding not to renew his contract. In other words, Wurtz only alleges that the District took some action against him in his capacity as an applicant for future employment. But as this opinion has shown, the WPA does not apply to job applicants, nor does it apply to contract employees seeking renewal of their con tracts. The trial court properly granted summary disposition in defendants’ favor. During Wurtz’s ten years as an employee — when he enjoyed the protections of the WPA — he endured no action prohibited by the WPA. He was not discharged, threatened, or discriminated against regarding his compensation, terms, conditions, location, or privileges of employment. He served the District for the entire duration of his contract and received every cent and every benefit to which he was entitled. Thus, the District did not engage in any action prohibited by the WPA. Moreover, the circuit court did not prematurely grant summary disposition in defendants’ favor. Generally, a circuit court should not grant summary disposition unless no fair likelihood exists that additional discovery would reveal more support for the nonmoving party’s position. Wurtz argues that additional discovery would have yielded employment records showing that the District routinely renewed its employees’ fixed-term contracts. Accepting this as true, no additional discovery would change the outcome in this case. Wurtz worked for the District for the entirety of his contract and suffered no adverse employment action in the context of that contract. That the District may have renewed employees’ contracts in the past does not transform the expiration of Wurtz’s contract into a prohibited action. No amount of additional discovery would have yielded support for Wurtz’s position, and summary disposition was not premature. 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 employer declines to hire, so Wurtz cannot claim relief under the statute. v CONCLUSION The WPA does not provide Wurtz any recourse. The WPA does not apply to prospective employees and it does not apply to contract employees seeking renewal of their employment contract. Wurtz’s only allegation of a prohibited action occurred in the context of his application for future employment, so his claim fails as a matter of law. Moreover, summary disposition was not premature because no amount of additional discovery would show that Wurtz came within the WPA’s protections. Accordingly, we reverse the Court of Appeals’ decision and remand this case to the circuit court for entry of summary disposition in defendants’ favor. Young, C.J., and Markman, Kelly, McCormack, and Viviano, JJ., concurred with Zahra, J. Cavanagh, J., concurred in the result. MCL 15.361 et seq. MCL 15.261 et seq. Wurtz v Beecher Metro Dist, 298 Mich App 75; 825 NW2d 651 (2012). Id. at 88. Id. at 91 (K. E Kelly, J., dissenting). Wurtz v Beecher Metro Dist, 494 Mich 862 (2013). Id. Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013). Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). Bd. of Regents of State Colleges v Roth, 408 US 564, 578; 92 S Ct 2701; 33 L Ed 2d 548 (1972). See Mich Employment Relations Comm v Reeths-Puffer Sch Dist, 391 Mich 253, 259; 215 NW2d 672 (1974) (“[A]n employee may be terminated for a ‘good reason, bad reason, or no reason at all’.”), quoting NLRB v Century Broadcasting Corp, 419 F2d 771, 778 (CA 8, 1969). Whitman, 493 Mich at 311. The protected activities listed in the act consist of reporting or being about to report a violation of a law, regulation, or rule, or being requested by a public body to participate in an investigation, hearing, inquiry, or court action. MCL 15.362. See also Chandler v Dowell Schlumberger Inc, 456 Mich 395, 399; 572 NW2d 210 (1998); Brown v Detroit Mayor, 478 Mich 589, 594; 734 NW2d 514 (2007). Many courts, including this one, have at times grouped the collection of retaliatory acts that an employer might take toward a whistleblower under the broader term “adverse employment actions.” See, e.g., Whitman, 493 Mich at 313; cf. Chandler, 456 Mich at 399 (drawing the second element of a prima facie WPA claim directly from the statutory language). But the way that the term has obtained meaning resembles the telephone game in which a secret is passed from person to person until the original message becomes unrecognizable. The term “adverse employment action” was originally developed and defined in the context of federal antidiscrimination statutes to encompass the various ways that an employer might retaliate or discriminate against an employee on the basis of age, sex, or race. See Crady v Liberty Nat’l Bank & Trust Co of Indiana, 993 F2d 132, 136 (CA 7, 1993) (“A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.”). The term “adverse employment action” appeared in this Court’s jurisprudence for the first time in an age discrimination case, Town v Mich Bell Tel Co, 455 Mich 688, 695; 568 NW2d 64 (1997), though the statute at issue in that case, as here, did not contain the term. Michigan courts then adopted the federal definition of “adverse employment action” in the context of making out a prima facie case under Michigan’s Civil Rights Act. Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347, 362-366; 597 NW2d 250 (1999). Finally, the term crept into WPA cases. See Debano-Griffin v Lake Co, 493 Mich 167, 175-176; 828 NW2d 634 (2013); Brown v Detroit Mayor, 271 Mich App 692, 706; 723 NW2d 464 (2006), aff d in relevant part, 478 Mich 589 (2007). While the term “adverse employment action” may be helpful shorthand for the different ways that an employer could retaliate or discriminate against an employee, this case illustrates how such haphazard, telephone-game jurisprudence can lead courts far afield of the statutory language. That is, despite courts’ freewheeling transference of the term from one statute to another, the WPA actually prohibits different “adverse employment actions” than the federal and state antidiscrimination statutes. So we take this opportunity to return to the express language of the WPA when it comes to the necessary showing for a prima facie case under that statute. Put another way, a plaintiffs demonstration of some abstract “adverse employment action” as that term has developed in other lines of caselaw will not be sufficient. Rather, the plaintiff must demonstrate one of the specific adverse employment actions listed in the WPA. MCL 15.362 (stating that an employer may not take prohibited action against an employee “because” of an employee’s engagement in a protected activity) (emphasis added). See Chandler, 456 Mich at 399; Debano-Griffin v Lake Co, 493 Mich at 175 (2013). We recognize that plaintiff was an employee at the time he engaged in protected activity. Significantly, however, plaintiff makes no claim that his employment contract was in any way breached or that he was subject to a specific adverse employment action enumerated by the WPA during his contract term. Rather, plaintiff maintains that because he engaged in protected activity during his contract term, he has a right under the WPA to renewal of his contract. For the reasons set forth in this opinion, we reject plaintiffs claim. MCL 15.361(a). MCL 37.2202(1) (emphasis added). 29 USC 623(a)(1) (stating that it shall be unlawful for an employer “to fail or refuse to hire or to discharge any individual... because of such individual’s age”). 42 USC 2000e-2(a)(l) (stating that it shall be an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual... because of such individual’s race, color, religion, sex, or national origin”). MCL 37.2202; 29 USC 623(a)(1); 42 USC 2000e-2(a)(l). This, of course, does not mean that courts interpreting the WPA should never look to the CRA or federal antidiscrimination statutes for help. But in doing so, courts must he cognizant of the textual differences that exist. Leibowitz v Cornell Univ, 584 F3d 487 (CA 2, 2009). Id. at 492-493. Id. at 495. Id. at 501. Id. at 500-501 (“It is beyond cavil that employers subject to the strictures of the ADEA and Title VII may not discriminate on the basis of age or gender in deciding whether or not to hire prospective employees. . .. Were we to accept defendants’ argument here, we would effectively rule that current employees seeking a renewal of an employment contract are not entitled to the same statutory protections under the discrimination laws as prospective employees.... An employee seeking a renewal of an employment contract, just like a new applicant or a rehire after a layoff, suffers an adverse employment action when an employment opportunity is denied and is protected from discrimination in connection with such decisions under Title VII and the ADEA.”). See Petripren v Jaskowski, 494 Mich 190, 212 n 50; 833 NW2d 247 (2013). For example, the Legislature might have considered the possibility of a situation like that which has arisen under the Energy Reorganization Act (ERA), 42 USC 5851, a federal whistleblowing statute that has been interpreted to protect prospective hires. A single litigant, Syed Hasan, has sued at least a dozen companies that refused to hire him. Hasan, who has raised nonmeritorious whistleblowing allegations in the past, methodically seeks employment and informs the prospective employers of his whistleblowing history. Then, when the companies decline to hire him, Hasan promptly brings an action for violation of the ERA’s whistleblowing provisions. Despite his unmitigated waste of judicial resources all around the country, this Court has not turned up a single case in which Hasan prevailed on the merits. See, e.g., Hasan v US Dep’t of Labor, 545 F3d 248 (CA 3, 2008); Hasan v US Dep’t of Labor, 400 F3d 1001 (CA 7, 2005); Hasan v US Dep’t of Labor, 298 F3d 914 (CA 10, 2002); Hasan v US Dep’t of Labor, 301 F Appx 566 (CA 7, 2008); Hasan v Secretary of Labor, 90 F Appx 5, (CA 1, 2004); Hasan v US Dep’t of Labor, 102 F Appx 341 (CA 4, 2004); Hasan v US Dep’t of Labor, 107 F Appx 184 (CA 11, 2004). McNeil v Charlevoix Co, 484 Mich 69, 86; 772 NW2d 18 (2009). See Suchodolski v Mich Consol Gas Co, 412 Mich 692, 695 n 2; 316 NW2d 710 (1982). Wurtz’s contract did not contain any renewal clause imposing some obligation or duty on the employer to act. Thus, we need not address the effect that such a clause would have on our analysis.
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Cavanagh, J. his case requires us to consider the extent to which the Governor’s exercise of the pardon powers conferred by Const 1963, art 5, § 14 is justiciable; whether our review of the pardon powers offends the separation-of-powers doctrine; whether the commutation of plaintiffs sentence was complete; and whether Const 1963, art 5, § 14 grants the Governor the power to revoke a commutation. We hold that the extent of the Governor’s pardon powers is a justiciable question and our review does not violate the separation-of-powers doctrine. We also hold that the Michigan Constitution does not grant the Governor the power to revoke a valid commutation, and that plaintiffs commutation was valid and irrevocable when it was signed by the Governor and the Secretary of State and affixed with the Great Seal. Accordingly, we reverse the judgment of the Court of Appeals, order the Department of Corrections to reinstate plaintiffs sentence to a parolable life sentence, and remand plaintiff to the jurisdiction of the parole board. I. FACTS AND PROCEDURAL HISTORY In 1988, plaintiff was a manager at a Dearborn health club. Plaintiff gave cash to one of his employees to act as a courier and sent the courier to a bank to obtain a money order. Plaintiff then conspired with a second employee and that employee’s roommate to have the roommate rob the courier en route to the bank. During the attempted robbery, the courier fought back and the roommate stabbed the courier, resulting in the courier’s death. Plaintiff was charged with and convicted of first-degree felony murder and armed robbery and sentenced to life in prison without the possibility of parole. Plaintiff was a model prisoner, receiving only two minor misconduct tickets while in prison. In January 2010, plaintiff filed an application for commutation. Plaintiffs application was considered by the parole board, which recommended that the case proceed to a public hearing. The parole board sent notice of the hearing to the Wayne County Prosecutor and to the successor Wayne County Circuit Judge. Notice was not sent to the victim’s family because the family members failed.to register as victims as required for notice under the Crime Victim’s Rights Act. See MCL 780.769. A hearing was scheduled for October 21,2010, and the Michigan Department of Corrections posted public notice of the hearing on its website in early October. At the hearing, neither the prosecutor nor the victim’s family appeared or opposed commutation. Following the hearing, the parole board sent the commutation application to then Governor Jennifer Granholm with a favorable recommendation. On December 22, 2010, the Governor signed the commutation. The Governor’s office sent the signed commutation to the Secretary of State, who affixed the Great Seal and autopenned the Secretary of State’s signature to the commutation. At 1:52 p.m., the Governor’s deputy legal counsel sent an e-mail to several state officials announcing that “[t]he Governor has approved the commutation request of [plaintiff].” Early December 23, 2010, the Governor’s legal counsel received a call from a lawyer representing the victim’s family, who expressed the family’s opposition to the commutation and the family’s unhappiness with the lack of notice. On December 27, 2010, the Governor’s deputy legal counsel delivered a letter from the Governor to the parole board chair officially directing the chair to halt all commutation proceedings and indicating that the Governor intended to revoke the commutation. The Governor’s deputy legal counsel obtained and destroyed all copies of the certificate of commutation. On December 31, 2010, Governor Granholm left office and on January 1, 2011, newly elected Governor Rick Snyder assumed office. On March 25, 2011, the parole board reconsidered plaintiffs commutation, voted against recommending plaintiff for commutation, and notified the newly elected Governor of its negative recommendation. On April 15, 2011, the Governor denied plaintiffs commutation. Plaintiff brought suit on May 19, 2011, alleging that the commutation of his sentence was final on December 22, 2010, when it was signed, sealed, and delivered to the Department of Corrections. Plaintiff also alleged that the Governor lacked authority to revoke a completed commutation and that the revocation increased plaintiffs sentence in violation of the Double Jeopardy Clauses and plaintiffs due process rights. The parties filed cross-motions for summary disposition, and on November 15, 2011, the trial court granted the state’s motion for summary disposition, ruling that the court lacked jurisdiction to consider the issue. Plaintiff appealed, and the Court of Appeals affirmed. Makowski v Governor, 299 Mich App 166, 168; 829 NW2d 291 (2012). We granted leave to appeal. II. STANDARD OF REVIEW Questions of constitutional and statutory interpretation are reviewed de novo. Midland Cogeneration Venture Ltd Partnership v Naftaly, 489 Mich 83, 89; 803 NW2d 674 (2011). III. ANALYSIS A. POLITICAL QUESTION DOCTRINE We must first consider whether this case presents a nonjusticiable political question. The concept of a nonjusticiable political question was introduced in the seminal United States Supreme Court case Marbury v Madison, 5 US (1 Cranch) 137; 2 L Ed 60 (1803). When considering whether the United States Supreme Court had the power to review the questions posed in Mar-bury, the Court explained that “[b]y the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion” and “[i]n such cases, . . . whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.” Id. at 165-166. Accordingly, courts may not inquire into how the executive or his officers perform their duties in which they have discretion. Id. at 170. The Court held that questions that by their nature are political or that are submitted only to the executive by the Constitution cannot be reviewed by courts. Id. However, “it is, emphatically, the province and duty of the judicial department, to say what the law is.” Id. at 177. The Court held that whether the executive act of granting a commission vested a legal right in the appointee was a legal question, properly determinable by the courts. Id. at 171. In House Speaker v Governor, 443 Mich 560; 506 NW2d 190 (1993), we addressed the political-question doctrine and considered whether under Const 1963, art 5, § 2 the Governor had the power to transfer all powers and duties from a legislatively created department of the executive branch responsible for environmental protection to a gubernatorially created department that had the same purpose. House Speaker, 443 Mich at 564. One of the arguments in House Speaker, as in this case, was that the Governor’s exercise of power was not properly reviewable by this Court. Id. We applied a three-part test to determine whether the question presented was a nonjusticiable political question: [1] [d]oes the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? [2] Would resolution of the question demand that a court move beyond areas of judicial expertise? [3] Do prudential considerations for maintaining respect between the three branches counsel against judicial intervention? [Id. at 574, citing Goldwater v Carter, 444 US 996, 998; 100 S Ct 553; 62 L Ed 2d 428 (1979) (brackets and quotation marks omitted).] First, we consider whether the issue involves the resolution of questions that the text of the Constitution commits to a coordinate branch of government. Id. In addressing this question, the United States Supreme Court has stated that “the courts must, in the first instance, interpret the text in question and determine whether and to what extent the issue is textually committed.” Nixon v United States, 506 US 224, 228; 113 S Ct 732; 122 L Ed 2d 1 (1993). Therefore, we must begin by interpreting the text of the constitutional provision in question. “In interpreting the constitution, this Court has developed two rules of construction.” Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 745; 330 NW2d 346 (1982). First, the interpretation should be “the sense most obvious to the common understanding; the one which reasonable minds, the great mass of people themselves, would give it.” Id. (citations and quotation marks omitted). Second, in previous cases we have considered “the circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished^]” Id. (citations and quotation marks omitted). The Constitution provides that the Governor may grant commutations “subject to procedures and regulations prescribed by law.” Const 1963, art 5, § 14 (emphasis added). Thus, the sense most obvious to the common understanding of article 5, § 14 is that it clearly places a limit on the Governor’s pardon power by allowing the Legislature to enact laws that determine the necessary procedures and regulations surrounding commutations. Therefore, while the Michigan Constitution provides the Governor the power to grant commutations, the Governor is not given sole control of the pardon power. Next, we consider “the circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished[.]” House Speaker, 443 Mich at 580. We conclude that the adoption of article 5, § 14 also indicates that the Governor’s power to grant commutations is limited. The debates in the Constitutional Convention record, while not determinative, clearly support our interpretation of article 5, § 14. See House Speaker, 443 Mich at 580-581. The debate surrounding the pardon power at the 1961 Michigan Constitutional Convention considered two main questions: whether the Governor should be granted the ability to delegate the power, and whether the Legislature should be granted the power to limit the pardon process. See 1 Official Record, Constitutional Convention 1961, 579-585. The Executive Branch Committee originally proposed that the Governor’s overall duties were too strenuous to require the Governor to personally handle each individual pardon and commutation. Id. at 579. Thus, the Committee favored a constitutional provision that allowed the Governor to delegate the pardon duties. Id. However, the delegates expressed discomfort with allowing the Governor to delegate the pardon power, id. at 579-580, and the Hutchinson Amendment removed the Governor’s ability to do so by inserting the word “exercise” instead of the word “delegate” when referring to the Governor’s pardon powers, id. at 583. The debate makes it clear that the convention delegates were uncomfortable with anyone other than the chief executive exercising the pardon power. Id. at 579-580. The later debate surrounding the Hutchinson Amendment considered whether the Legislature should have the power to regulate the Governor’s pardon power. Id. at 585-587. There was support for the concept that the Legislature could control the procedures for a pardon, but there was concern that the Legislature could make the process so difficult that the Governor’s power to grant a pardon could be nearly eliminated. Id. at 586-587. Nevertheless, the limitations on the pardon power were ultimately incorporated, and the provision was referred to the Committee on Style and Drafting reading that the pardon power was “subject to regulations provided by law relative to the manner of applying for pardon.” Id. at 588. After returning to committee, the text of the pardon power provision was edited to insert the phrase “and procedures” after “regulations” and to strike “relative to the manner of applying for pardon.” 2 Official Record, Constitutional Convention 1961, p 2740. The comments concerning the introduction of the revised text clarify that the intent of the alteration was to reflect the convention’s view that the Legislature could control the procedure, as consistent with the previous debate. Id. at 2740-2741. Indeed, the vesting of the Legislature with the power to control the procedures of commutations and pardons is not surprising because we have long recognized this as a legislative power. See Rich v Chamberlain, 104 Mich 436, 441; 62 NW 584 (1895) (explaining that “the Constitution, in express terms, lodges the pardoning power with the governor, and with it the co-ordinate branches of government have nothing to do, except as the legislature may by law provide how applications may be made ....”). Thus, our interpretation of Const 1963, art 5, § 14 leads us to the conclusion that the Governor’s power to commute a sentence is limited by those procedures and regulations that the Legislature enacts. Accordingly, the distribution of power between the Legislature and the Governor regarding commutations creates a legal question that this Court must answer. In Nixon, the United States Supreme Court held that the process by which the Senate impeaches a judge is nonjusticiable. However, a key consideration in Nixon’s holding was that the United States Constitution gives the Senate the “sole” power to try all impeachments. Nixon held that the use of the word “sole” indicated that the authority resided with the Senate and nowhere else. Nixon, 506 US at 229. Alternatively, House Speaker relied on the fact that the Constitution did not place the responsibility for effectuating legislation pro tecting natural resources within the “sole control” of the Legislature. House Speaker, 443 Mich at 580 (quotation marks omitted). Whether the Governor had the constitutional power to create his own department and transfer powers to that department from the existing legislatively created department did not present a nonjusticiable question and, instead, only required that the Court apply the rules of constitutional interpretation. Id. at 575-576. In this case, the fact that the Constitution provides the Legislature the power to regulate the process by which commutations are granted means that the Governor does not have “sole control” over the pardon power. The Court of Appeals held that the Governor’s absolute discretion was not limited by the statutory provisions that set forth the procedural requirements of commutations. Makowski, 299 Mich App at 175. However, the Court of Appeals’ analysis misses the mark because the Governor’s power to grant commutations is limited by the statutory provisions. Therefore, as in House Speaker, we only need to apply the rules of constitutional interpretation and interpret the relevant statutes to determine at what point the commutation was complete. House Speaker, 443 Mich at 574. We do not examine the exercise of the Governor’s discretion, as the Court of Appeals held; instead, we interpret the extent of the Governor’s power. The Constitution indeed grants the Governor absolute discretion regarding whether to grant or deny a commutation; however, the Constitution restricts the procedure of a commutation to that which is provided by law. Thus, the Constitution does not grant “absolute power” to the Governor, Makowski, 299 Mich App at 175, and we therefore conclude that the procedure of a commutation, including its finality, is not wholly committed by the text of the Constitution to the Governor. Considering the second House Speaker question, resolution of the question presented in this case does not demand that the Court move beyond areas of judicial expertise, House Speaker, 443 Mich at 574, because “there is no ‘lack of judicially discoverable and manageable standards for resolving’ this case; nor is a decision impossible ‘without an initial policy determination of a kind clearly for nonjudicial discretion.’ ” Goldwater, 444 US at 999 (Powell, J., concurring), quoting Baker v Carr, 369 US 186, 217; 82 S Ct 691; 7 L Ed 2d 663 (1962). The Court of Appeals held that resolution of this case “would constitute mere guess and speculation” and that there were no judicially discoverable and manageable standards that would have allowed a court to determine “how and precisely when a commutation application is considered ‘granted ....’” Makowski, 299 Mich App at 176. However, as previously stated, this case ultimately rests upon the interpretation of our Constitution — a legal question — and it is this Court’s duty to say “what the law is.” Marbury, 5 US at 177. “ ‘[D]eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court....’” House Speaker, 443 Mich at 575, quoting Baker, 369 US at 211. And to the extent that we must consider whether the Governor’s actions granted plaintiff a commutation, “[t]he question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority.” Marbury, 5 US at 167. Through MCL 791.234(1), our Legislature has provided that a prisoner serving a sentence with a minimum term of years “is subject to the jurisdiction of the parole board when the prisoner has served a period of time equal to the minimum sentence imposed by the court for the crime of which he or she was convicted... .” The assumed language of plaintiffs commutation provided that his sentence was commuted “to [time served in years, months, and days as calculated by the Department of Corrections] minimum to life maximum, thereby making him eligible for parole on [a date some months earlier than the date of the commutation].” Therefore, a validly executed commutation brought plaintiff within the jurisdiction of the parole board pursuant to MCL 791.234(1), making him eligible for parole, and, thus, granted him the right to parole consideration. A person eligible for parole is not entitled to parole as a matter of right. See MCL 791.234(11) (stating that “a prisoner’s release on parole is discretionary with the parole board”); Adams v Russell, 169 Mich 606, 608; 135 NW 658 (1912) (holding similarly when considering a previous version of the parole statute); Greenholtz v Inmates of the Nebraska Penal & Corr Complex, 442 US 1, 7; 99 S Ct 2100; 60 L Ed 2d 668 (1979) (holding that “[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence”). However, under MCL 791.234(1), a person who is eligible for parole is nonetheless differently situated from a person serving a nonparolable life sentence. This change in status allegedly conferred by the commutation granted plaintiff the right to parole consideration. Cf. Ex Parte Garland, 71 US (4 Wall) 333, 380-381; 18 L Ed 366 (1866) (“[I]f granted after conviction, [a pardon] removes the penalties and disabilities and restores him to all his civil rights; it. . . gives him a new credit and capacity.”). Therefore, in this case, as in Marbury, a legal document was signed by an executive granting a person a right. The executive then attempted to revoke the right granted by the document. Thus, as in Marbury, at issue is the Court’s ability to determine whether the document granting plaintiffs commutation was effective despite the lack of a codified procedure, and whether the commutation, if validly granted, may be revoked. The similarities between this case and Marbury are notable, and the fact that the United States Supreme Court reached the merits in Marbury is persuasive. In Marbury, President Adams commissioned multiple justices of the peace for Washington, D.C. Marbury, 5 US at 155. However, the commissions were not delivered to the newly commissioned justices of the peace before the change of presidential administrations. After the new administration took office, James Madison, the new Secretary of State, refused to deliver the commissions. The commissioned justices of the peace brought suit in the United States Supreme Court seeking a writ of mandamus requiring Madison to deliver the commissions. Id. at 153-154. Similar to the situation in Marbury, the Michigan Constitution grants the Governor a power without providing explicit procedural requirements for its exercise. The lack of procedural requirements for commutations does not foreclose this Court’s ability to consider the validity and finality of commutations. Indeed, this Court has in the past considered whether a gubernatorial pardon was valid, holding that a pardon bearing the Great Seal and the signatures of the Governor and Secretary of State was sufficient despite defects on the face of the document. Spafford v Benzie Circuit Judge, 136 Mich 25, 27; 98 NW 741 (1904). In Spafford, the requirements for a pardon were not legislatively prescribed; nevertheless, this Court reached the merits. Id. Turning to the controlling statutes in this case, under MCL 791.243 and MCL 791.244, applications for commutation must first be presented to the parole board for a recommendation. Further, under MCL 2.44(d), “[a]n impression of the great seal shall be placed on” commutations. The Legislature has not provided express guidance as to what is required for a completed commutation beyond the Great Seal requirement found within MCL 2.44. However, our review is not foreclosed merely because the Legislature has been largely silent on the proper procedures surrounding commutations. Contrary to the Court of Appeals’ holding, we are not “legislating] how and when a commutation decision becomes final and irrevocable.” Makowski, 299 Mich App at 176. “Some point of time must be taken, when the power of the executive . .. must cease,” Marbury, 5 US at 157, and, therefore, we simply must determine when that time is. Thus, whether the Governor’s actions granted plaintiff a right to commu tation of his sentence and, if so, whether the Governor may revoke a commutation under the Michigan Constitution are questions that are not only well within this Court’s expertise, they are questions that this Court has the duty to answer. This Court need not determine whether the Governor exercised sound judgment in granting and revoking plaintiffs commutation; we merely must determine whether the Governor completed all the steps legally required to grant plaintiff a commuted sentence and whether the Constitution affords the Governor the power to revoke a valid commutation. Therefore, we need not move beyond the areas of judicial expertise in deciding this case. Addressing the third House Speaker question, there are no prudential considerations that prevent this Court from resolving the issue. House Speaker, 443 Mich at 574. The Court of Appeals erroneously examined whether “Michigan’s Constitution empowers the Governor, solely, to exercise judgment in commutation matters.” Makowski, 299 Mich App at 178-179 (emphasis added). But, once again, we do not review the merits underlying the Governor’s discretionary exercise of judgment but rather the extent of the Governor’s powers. “The issue of decisionmaking authority must be resolved as a matter of constitutional law, not political discretion; accordingly, it falls within the competence of the courts.” Goldwater, 444 US at 1007 (Brennan, J., dissenting) (emphasis added). Nor are we “coerc[ing] an outcome that is contrary to the. . . Governor’s clear intention . .. .” Makowski, 299 Mich App at 179. “Interpreting the constitution does not imply a lack of respect for another branch of government, even when that interpretation differs from that of the other branch.” House Speaker, 443 Mich at 575. And while this case certainly presents a politically charged issue, the mere fact that a question involves political issues does not make it a “political question.” Id. at 574. “ ‘The courts cannot reject as “no law suit” a bona fide controversy as to whether some action denominated “political” exceeds constitutional authority.’ ” Id., quoting Baker, 369 US at 217. Indeed, “the mere fact that [a] suit seeks protection of a political right does not mean it presents a political question. Such an objection ‘is little more than a play upon words.’ ” Baker, 369 US at 209, quoting Nixon v Herndon, 273 US 536, 540; 47 S Ct 446; 71 L Ed 759 (1927). In sum, there is nothing that precludes us from reaching the merits in this case. B. SEPARATION OP POWERS Our review of the Governor’s exercise of the powers of commutation is not an impermissible violation of the separation of powers. While the Constitution provides for three separate branches of government, Const 1963, art 3, § 2, the boundaries between these branches need not be “airtight,” Kent Co Prosecutor v Kent Co Sheriff (On Rehearing), 428 Mich 314, 322; 409 NW2d 202 (1987), quoting Nixon v Administrator of Gen Serus, 433 US 425, 443; 97 S Ct 2777; 53 L Ed 2d 867 (1977). In fact, “[i]n designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.” Kent Co Prosecutor, 428 Mich at 322, quoting United States v Nixon, 418 US 683, 707; 94 S Ct 3090; 41 L Ed 2d 1039 (1974). “The true meaning [of the separation-of-powers doctrine] is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free Constitution.” Local 321, State, Co & Muni Workers of America v City of Dearborn, 311 Mich 674, 677; 19 NW2d 140 (1945) (citation and quotation marks omitted). While the Constitution reserves the pardon power for the Governor, this Court may review the Governor’s exercise of that power to ensure that it is constitutional. Cf. Buback v Governor, 380 Mich 209, 217-219; 156 NW2d 549 (1968) (opinion by ADAMS, J.) (stating that the Court may review the Governor’s removal power to ensure that it is exercised within the confines of the Due Process Clause). It is true that the courts may not commute a sentence. People v Freleigh, 334 Mich 306, 310; 54 NW2d 599 (1952). However, we are not commuting plaintiffs sentence, as the state argues; rather, we are determining the extent of the Governor’s power under Const 1963, art 5, § 14. The Governor ordered the commutation of plaintiffs sentence and the revocation of the commutation. We do not judge the Governor’s discretion, nor do we usurp the Governor’s power and direct plaintiffs commutation. We merely determine what rights, if any, the Governor granted plaintiff upon the delivery of the certificate of plaintiffs commutation to the Department of Corrections, and whether it was within the Governor’s power to revoke any rights granted. As previously explained, our review of whether the Governor granted and may revoke a commutation in this case is not an exercise of the “whole power” of commutation. Instead, it is a determination of the extent of the Governor’s powers under the Constitution. Therefore, our review of this case does not offend separation-of-powers principles. C. FINALITY OF THE COMMUTATION The Governor’s power to grant commutations under Const 1963, art 5, § 14 is limited “to those procedures and regulations prescribed by law.” Const 1963, art 5, § 14. As stated earlier, the similarities between the facts and the questions presented in this case and Marbury are striking. Thus, the United States Supreme Court’s analysis in Marbury is helpful in this case where we otherwise have little guidance. In Marbury, the commissions were confirmed by the Senate, signed by the President, and affixed with the seal of the United States by the Secretary of State. Marbury, 5 US at 155. However, the commissions were not delivered to the newly commissioned justices of the peace, and James Madison sought to block their appointment. Id. Specifically, Marbury’s analysis regarding whether the justices of the peace were entitled to the commissions necessarily considered whether the appointments were effective, id., and is particularly relevant to our analysis here. When considering whether the justices of the peace were entitled to the commissions, Marbury determined that once the President signed the commission, the commission was complete, as that was the last act required of the person making it. Importantly, Marbury stated that “[s]ome point of time must be taken, when the power of the executive over an officer, not removable at his will, must cease. That point of time must be, when the constitutional power of appointment has been exercised.” Id. at 157. Marbury held that the power has been exercised “when the last act, required from the person possessing the power, has been performed,” which was the signing of the commission. Id. Spafford is also instructive. In Spafford, the defendant was convicted of manslaughter, but was pardoned before he was sentenced. The defendant filed a motion for his discharge, but the county judge denied the motion, claiming that the pardon was not effective because of multiple defects on the face of the document. Spafford, 136 Mich at 26-27. This Court determined that none of the defects rendered the pardon invalid because the pardon’s “substance left no doubt of the intention of the Governor to extend executive clemency.” Id. at 27. Further, the Court stated that it had “no doubt of the validity of the instrument when signed by the Governor . . . and attested by the signature of the secretary of state and the great seal of the State, if otherwise regular in form and substance.” Id. The text of the commutation makes it clear that the commutation was final: “Now Therefore, I, Jennifer M. Granholm, Governor of the State of Michigan, do hereby commute the sentence of [plaintiff] . . . .” (Emphasis added). See Soap & Detergent Ass’n, 415 Mich at 757 (discussing the rules for interpretation of executive acts and explaining that “[t]he executive intends the meaning that is clearly expressed”). “Hereby” is defined as “[b]y this document; by these very words[.]” Black’s Law Dictionary (8th ed). Thus, we conclude that the commutation’s substance “left no doubt of the intention of the governor to extend executive clemency.” Spafford, 136 Mich at 27. Indeed, it is clear that the Governor herself considered the commutation completed. The letter signed by the Governor ordering the parole board to refrain from effectuating the commutation stated, “[I]t is my intention ... to revoke the commutation of [plaintiffs] sentence before fully effectuated.” (Emphasis added.) The Governor’s use of the word “revoke” indicates that the Governor herself believed that the commutation had been granted. Moreover, e-mails among executive officers explicitly stated that the commutation was “[g]ranted and certificates [were] delivered” in response to an inquiry whether the Governor had already granted the commutation, suggesting that the executive branch believed that the commutation had been granted. Additionally, as Marbury explained, at some point the executive power to commute a sentence must have been exercised. Marbury held that executive power had been exercised “when the last act, required from the person possessing the power, has been performed,” which, in that case, was the signature of the commission. Marbury, 5 US at 157. While the discretion to grant a commutation lies solely with the Governor, our Legislature has provided that a commutation must be affixed with the Great Seal. Indeed, Marbury, in considering a similar congressional statute that required that the commissions be sealed, stated that “when the seal is affixed, the appointment is made, and the commission is valid. No other solemnity is required by law; no other act is to be performed on the part of government.” Marbury, 5 US at 158-159 (emphasis added). After being signed, the commutation was delivered to the Secretary of State for affixation of the Great Seal, as required by MCL 2.44. Therefore, when the commutation was signed by the Governor, signed by the Secretary of State, and affixed with the Great Seal, the last act required of the executive branch had been performed and the Governor’s power of commutation had been exercised. Because it was both the clear intent of the Governor to commute plaintiffs sentence and the last act required of the executive for a commutation had been completed, we hold that once the commutation was affixed with the Great Seal by the Secretary of State, plaintiffs sentence had been commuted. D. THE GOVERNOR’S POWER TO REVOKE A COMMUTATION Because we hold that the Governor granted plaintiff a commutation, we must next determine whether Const 1963, art 5, § 14 grants the Governor the power to revoke a commutation. As previously stated, we con sider two questions when interpreting the Constitution: the interpretation must be “the sense most obvious to the common understanding” and “the circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished^]” House Speaker, 443 Mich at 577, 580 (citations and quotation marks omitted). The language of the Constitution confers only the power to grant commutations. The fact that the Constitution specifically provides that the Governor may grant a commutation implies that the Governor’s power is limited only to that ability. To interpret the expressly provided power to “grant” to implicitly provide the power to “revoke” would not give the Constitution “the sense most obvious to the common understanding” because the meaning of the word “revoke” is the exact opposite of the word “grant.” See Merriam-Webster’s Collegiate Dictionary (2011) (defining “grant” as “to bestow or transfer formally” and “revoke” as “to annul by recalling or taking back”). Notably, the Constitution permits the Governor to grant conditional pardons and commutations. When a Governor has granted a conditional commutation, if the conditions are not fulfilled, the Governor may revoke the commutation. See People v Marsh, 125 Mich 410; 84 NW 472 (1900). Given that the power to grant a conditional commutation exists, it logically follows that a commutation that is not expressly subject to conditions and limitations may not be revoked. Moreover, it is well established that a trial judge does not have the power to change a valid sentence because the judge’s authority over the prisoners has passed once the sentence is imposed, see People v Fox, 312 Mich 577; 20 NW2d 732 (1945), and that increasing a validly imposed sentence is impermissible, Ex Parte Lange, 85 US (18 Wall) 163,173; 21L Ed 872 (1873). Similarly, the Governor’s attempt to revoke a valid commutation was impermissible because her authority over the prisoner’s commutation had passed. Once plaintiffs sentence was commuted, he was transferred to the jurisdiction of the parole board and his sentence was no longer one of life without the possibility of parole. See MCL 791.234(7). Therefore, the Governor’s attempt to revoke plaintiffs commutation impermissibly impinged upon the parole board’s powers by wresting plaintiff away from its jurisdiction. Further, should the power to revoke a commutation exist, it is not clear at what point that power would cease. Because the Governor’s pardon powers under article 5, § 14 include the power to grant reprieves, commutations, and pardons, our interpretation of the Governor’s power to grant commutations is similarly applicable to the Governor’s power to grant pardons and reprieves. Thus, it is important to consider that if article 5, § 14 grants the Governor the power to revoke commutations, it would also grant the Governor the power to revoke pardons and reprieves, raising serious concerns regarding the Governor’s ability to direct the reincarceration of a free person. Under the state’s argument, a Governor would be able to revoke a commutation granted by that Governor so long as that Governor remains in office, thereby returning a prisoner to a nonparolable life sentence potentially years after a commutation. We do not agree that the drafters intended to give the Governor such broad powers: When a person has been set at liberty under the pardon or the commutation of his sentence by the executive, he becomes once more a full citizen, clothed with all the rights, privileges, and prerogatives that belong to any other freeman. He cannot be sent out half free and half slave. He is not to be let out with a rope around his body, as it were, with one end in the hands of the warden, to be hauled back at the caprice of that officer. He must go out a free man, and remain a free man until he breaks the condition of his pardon. He must enjoy the blessings and benefits that belong to an American citizen until he has violated the law of his release. His character may be tarnished and his reputation soiled by his imprisonment, but his rights as a citizen are unimpaired. [People v Moore, 62 Mich 496, 500; 29 NW 80 (1886).] On the basis of the foregoing considerations, it is the sense most obvious to the common understanding that the Constitution does not provide the Governor the power to revoke an unconditional commutation. Moreover, the purpose sought to be accomplished by the pardon power does not counsel a different result. See House Speaker, 443 Mich at 580. We have explained that “[c]ommutations are acts of individualized clemency, typically motivated by the prisoner’s personal characteristics and behavior in jail or prison” and are “aimed at benefiting the released prisoner.” Kent Co Prosecutor, 428 Mich at 323, 324. Similarly, Chamberlain explained that a pardon “ ‘is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.’ ” Chamberlain, 104 Mich at 441, quoting United States v Wilson, 32 US (7 Pet) 150, 150; 8 L Ed 640 (1883). These purposes provide no indication that the pardon power was intended to grant the Governor such wide discretion that a commutation could be revoked at any time upon the Governor’s whim. Accordingly, neither “the sense most obvious to the common understanding” nor “the purpose sought to be accomplished,” House Speaker, 443 Mich at 577, 580, indicates that Const 1963, art 5, § 14 grants the Governor the power to revoke a commutation. Therefore, we hold that the Governor may not revoke a completed commutation. IV CONCLUSION We conclude that the interpretation and exercise of the Governor’s powers under Const 1963, art 5, § 14 are justiciable questions properly before this Court. The Governor is given the power to grant commutations under article 5, § 14; however, the Constitution does not give the Governor the power to revoke a validly granted commutation. Additionally, a commutation is complete when it is signed by the Governor, signed by the Secretary of State, and affixed with the Great Seal. Therefore, because the Governor signed plaintiffs commutation and delivered it to the Secretary of State, where it was signed and affixed with the Great Seal, plaintiff was granted an irrevocable commutation of his sentence. Accordingly, we reverse the judgment of the Court of Appeals, order the Department of Corrections to reinstate plaintiffs sentence to a parolable life sentence, and remand plaintiff to the jurisdiction of the parole board. Young, C.J., Markman, Kelly, and Viviano JJ., concurred with Cavanagh, J. McCORMACK, J., took no part in the decision because of her prior involvement in the case. Ultimately, Marbury was dismissed for lack of jurisdiction because the case was brought in the United States Supreme Court, which did not have original jurisdiction to hear a writ-of-mandamus case. Marbury, 5 US at 175-176. Const 1963, art 5, § 14 provides: The governor shall have power to grant reprieves, commutations and pardons after convictions for all offenses, except cases of impeachment, upon such conditions and limitations as he may direct, subject to procedures and regulations prescribed by law. He shall inform the legislature annually of each reprieve, commutation and pardon granted, stating reasons therefor. As this Court has previously noted, the constitutional convention debates, while not controlling, “are sometimes illuminating, affording a sense of direction . ..House Speaker, 443 Mich at 581. The Hutchinson Amendment was not ultimately adopted, and, instead, the provision was returned to committee in order to better craft the language. 1 Official Record, Constitutional Convention 1961, pp 586- 587. However, a later amendment, the Faxon Amendment, was adopted that placed the pardon power solely with the Governor. Id. at 587- 588. Plaintiffs commutation certificate was destroyed pursuant to the Governor’s command after the decision to revoke the commutation. However, all commutations issued by the Governor contained the same standard language and components, and the state does not contest the assumed language of plaintiff s commutation. The constitutional provision considered in Spafford provided that the Governor “may grant... commutations ... for all offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to regulations provided by law relative to the manner applying for pardons.” Const 1908, art 6, § 9. Arguably, the previous commutation provision of the Constitution provided the Governor greater discretion regarding the powers of commutation than the current Constitution, because the Legislature’s power in governing the commutation process was limited to the application. Therefore, although Spafford did not expressly consider justiciability, because the Court reached the merits in that case, it is logical that the Court may also reach the merits in this case. See Spafford, 136 Mich at 27. Const 1963, art 5, § 14 states that the Governor may grant pardons and commutations “upon such conditions and limitations as he may direct.” Emphasis added. Because we hold that the Governor does not have the power to revoke a completed commutation, we need not address plaintiffs argument that the revocation of his commutation was a violation of the double jeopardy clauses, US Const, Am V and Const 1963, art 1, § 15, and plaintiffs due process rights, US Const, Am XTV and Const 1963, art 1, § 17.
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KELLY, J. This case involves whether, and the extent to which, plaintiffs’ claims asserted under the Michigan Whistleblowers’ Protection Act (WPA) are preempted by the National Labor Relations Act (NLRA) and the Labor-Management Reporting and Disclosure Act (LMRDA). Plaintiffs allege that defendants violated the WPA when they discharged plaintiffs in retaliation for reporting to the United States Department of Labor their suspicions of fraud, embezzlement, improper wages, and unsafe working conditions or for participating in the Department of Labor’s ensuing investigation. Defendants argue that the NLRA and LMRDA preempt plaintiffs’ WPA claims and, as a result, the state court must dismiss those claims. Congress enacted the NLRA and the LMRDA to protect the rights of employees and union members from infringement by employers and unions. The NLRA established the National Labor Relations Board (NLRB), which has exclusive jurisdiction over activity “arguably subject” to §§ 7 and 8 of the NLRA. These provisions forbid an employer from interfering with an employee’s right to engage in concerted activities for the mutual aid or protection of employees. The LMRDA safeguards a union member’s ability to elect union leadership, provides broad discretion for elected union officials to implement their policies, and protects union members who exercise their freedom of expression from retaliation by union officials. More recently, the Michigan Legislature enacted the WPA to protect employees from retaliation for reporting violations or suspected violations of laws and regulations to a public body. We hold that neither the NLRA nor the LMRDA preempts WPA claims premised on reporting suspected criminal misconduct. The NLRA does not cover the reporting of suspected criminal misconduct, while the LMRDA does not provide a union official with discretion to cover up suspected criminal misconduct by retaliating against employees who report their allegations. However, plaintiffs’ allegations of retaliation for their reporting of improper wages and an unsafe work environment cover conduct “arguably prohibited” by the NLRA and, as a result, must be litigated exclusively before the NLRB. Accordingly, we affirm in part the decision of the Court of Appeals and remand this case to the Wayne Circuit Court for further proceedings consistent with our opinion. I. FACTS AND PROCEDURAL HISTORY Defendant Laborers’ Local 1191 is a Wayne County labor union that represents construction workers. At all times relevant to these consolidated appeals, the union’s member-elected leadership included its president (defendant Bruce Ruedisueli) and its business manager (defendant Michael Aaron). The union also employed several unelected business agents who serve at the pleasure of the business manager. Plaintiffs Anthony Henry and Keith White (Docket No. 145631) and Michael Ramsey and Glenn Dowdy (Docket No. 145632) all worked as business agents until their terminations. While the facts leading up to plaintiffs’ terminations are contested, it is undisputed that in September 2009, defendants asked several Local 1191 members to repair the crumbling fagade of the Trade Union Leadership Council (TULC) building. The work lasted for two days, and each member received $30 a day. Although Local 1191 recorded these payments as “picket duty” on the memo line of the checks used for payment and in the union’s treasury, it admits that its members did not engage in picket duty on those days. Henry witnessed the work. He and the three other plaintiffs suspected that Aaron was involved in criminal activity, including fraud, an illegal kickback scheme, and misappropriation of union funds. They also believed that Local 1191 required members to work without proper safety precautions and without receiving union wages. As a result, on September 25, 2009, Henry circulated an unsigned open letter to Local 1191’s leadership and distributed that letter to union membership, the union’s parent leadership, and local news outlets. In the letter, Henry asked why Local 1191 was paying members out of its picket fund to work on a for-profit establishment (the TULC) and suggested that Aaron had received illegal kickbacks from the TULC in exchange for providing the TULC with free construction labor. The letter also complained that union members received only $60 for two full days of work. In October 2009, Henry and White contacted the United States Department of Labor with their suspicions and informed the union of their decision to report the allegations. The Department of Labor investigated the allegations and interviewed several union employees and officials. It subsequently referred the matter to an Assistant United States Attorney, who declined to intervene. On November 11, 2009, Aaron notified Henry and White that they were indefinitely laid off from employment at Local 1191. The letters claimed that the “extremely difficult economic climate” necessitated the layoffs. Henry and White disputed that stated rationale and, instead, filed a complaint in the Wayne Circuit Court against Local 1191 as an entity and against Aaron and Ruedisueli individually, in which they alleged unlawful retaliation under the WPA. During the pendency of that initial action, Dowdy and Ramsey were terminated from their employment at Local 1191. Dowdy and Ramsey claim that they were terminated for their cooperation in the Department of Labor investigation and for disclosing to investigators facts substantiating the allegations of criminal illegality. They also filed a separate WPA complaint against Local 1191 as an entity and against Aaron and Ruedisueli individually. Defendants moved for summary disposition in the Henry/White lawsuit and for partial summary disposition in the Dowdy/Ramsey lawsuit, alleging that the LMRDA preempted plaintiffs’ WPA claims and that, as a result, the circuit court lacked subject-matter jurisdiction to hear them. The court denied the motions from the bench, concluding that the WPA’s protection of an employee against an employer’s retaliatory employment actions does not contravene the LMRDA because the LMRDA only protects from retaliation the rights afforded union members. On appeal, defendants reasserted their claim of LMRDA preemption and raised the new defense that the NLRA independently preempted the circuit court from exercising subject-matter jurisdiction. The Court of Appeals affirmed the circuit court’s ruling in an unpublished opinion. The Court agreed with the circuit court that plaintiffs “have not alleged any infringement on their membership rights” and that, as a result, the LMRDA’s protections did not cover plaintiffs’ claims. The Court also examined whether the WPA undermined the LMRDA’s democratic purpose to give elected union officials the discretion to implement policies that reflect the wishes of union membership. The Court concluded that plaintiffs’ claims did not infringe union leaders’ discretion “where a union employee claims wrongful discharge for refusing ‘to commit or aid in committing a crime’... .” Finally, the Court held that the NLRA did not preempt plaintiffs’ claims because “[a] claim for retaliatory discharge arising out of an employee’s report of suspected illegal activity or participation in investigation thereof is only of peripheral concern to the NLRA’s purpose of protecting employees’ rights to engage in ‘concerted activities for the purpose of collective bargaining or other mutual aid or protection.’ ” This Court granted defendants’ applications for leave to appeal and requested that the parties brief (1) whether, regardless of the public body involved, the National Labor Relations Act (NLRA), 29 USC 151 et seq., or the Labor Management Reporting and Disclosure Act (LMRDA), 29 USC 401 et seq., preempt Michigan’s Whistle-blowers’ Protection Act (WPA), MCL 15.361 et seq., if the challenged conduct actually or arguably falls within the jurisdiction of the NLRA or the LMRDA; (2) whether a union employee’s report to a public body of suspected illegal activity or participation in an investigation thereof is of only peripheral concern to the NLRA or the LMRDA so that the employee’s claims under the WPA are not preempted by federal law; and, (3) whether the state’s interest in enforcing the WPA is so deeply rooted that, in the absence of compelling congressional direction, courts cannot infer that Congress has deprived the state of the power to act.[ ] II. STANDARD OF REVIEW Defendants assert that federal law preempts plaintiffs’ WPA claims and precludes Michigan courts from exercising subject-matter jurisdiction over them. As a result, they argue, they are entitled to summary disposition pursuant to MCR 2.116(C)(4). Jurisdictional questions under MCR 2.116(C)(4), including whether federal statutory law preempts state law, are questions of law that we review de novo. In deciding whether to grant a motion for summary disposition pursuant to MCR 2.116(C)(4), a court must consider “[t]he affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties . . . .” hi. ANALYSIS A. GENERAL PREEMPTION PRINCIPLES In M‘Culloch v Maryland, Chief Justice John Marshall addressed the relationship between the federal and state governments in our constitutional republic: If any one proposition could command the universal assent of mankind, we might expect it would be this — that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result, necessarily, from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason: the people have, in express terms, decided it. .. .[ ] To this end, the Framers of the Constitution drafted, and the people ratified, the Supremacy Clause, which states the core principle of preemption: 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.[ ] Justice Cooley observed that the Supremacy Clause requires “[a] State law [to] yield to the supreme law, whether expressed in the Constitution of the United States or in any of its laws or treaties, so far as they come in collision. . . .” However, because a state’s traditional police powers are broad, the United States Supreme Court has explained that “ [consideration of issues arising under the Supremacy Clause start[s] with the assumption that the historic police powers of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and manifest purpose of Congress.’ ” Preemption “fundamentally is a question of congressional intent.. . .” Congress can preempt state law either explicitly or implicitly. “[I]n the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively” or when “it actually conflicts with federal law.” Nevertheless, “[i]n the final analysis, there can be no one crystal clear distinctly marked formula” to apply preemption principles in all contexts. Rather, we must examine congressional intent to preempt state law in the specific context of the statute or statutes at issue — in this case, how the Michigan WPA operates against the background of the NLRA and the LMRDA. B. THE NLRA Congress enacted the National Labor Relations Act in 1935 after it concluded that “[t]he denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest. . . ,” The NLRA’s enactment “marked a fundamental change in the Nation’s labor policies.” Congress replaced “[t]he earlier notion that union activity was a species of ‘conspiracy’ and that strikes and picketing were examples of unreasonable restraints of trade” with “an unequivocal national declaration of policy establishing the legitimacy of labor organization and encouraging the practice of collective bargaining.” Section 7 of the NLRA states that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection... ,” Section 8(a)(1) states that it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7,” while § 10(a) empowers the National Labor Relations Board “to prevent any person from engaging in any unfair labor practice . . . affecting commerce.” The structure of the NLRA not only creates federal rules of decision regarding labor relations, but also delegates enforcement of that policy to an administrative agency. The United States Supreme Court has acknowledged this dual purpose of the NLRA: [T]he unifying consideration of our decisions has been regard to the fact that Congress has entrusted administration of the labor policy for the Nation to a centralized administrative agency, armed with its own procedures, and equipped with its specialized knowledge and cumulative experience: ... Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes towards labor controversies. ... A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.[ ] Indeed, the Count has explained that “nothing could serve more fully to defeat the congressional goals underlying the Act than to subject, without limitation, the relationships it seeks to create to the concurrent jurisdiction of state and federal courts free to apply the general local law.” San Diego Building Trades Council v Garmon is the “watershed” case analyzing “the extent to which the maintenance of a general federal law of labor relations combined with a centralized administrative agency to implement its provisions necessarily supplants the operation of the more traditional legal processes in this field” — that is, state regulation. In Garmon, the Court explained: When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law. Nor has it mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations.[ ] Moreover, even when it is unclear “whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections,” the Court held that “ [i]t is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board.” Therefore, “[wjhen 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.” The Court subsequently clarified the “arguably subject” standard to mean that “the party claiming preemption is required to demonstrate that his case is one that the Board could legally decide in his favor.” In other words, “a party asserting pre-emption must advance an interpretation of the Act that is not plainly contrary to its language and that has not been ‘authoritatively rejected’ by the courts or the Board.” Nevertheless, the Court “has been unwilling to ‘declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers, and unions .. . .’ ” To this end, Garmon recognized two related exceptions to preemption of state law regulations that are “arguably subject” to §§ 7 or 8 of the NLRA. The exceptions each “examin[e] the state interests in regulating the conduct in question and the potential for interference with the federal regulatory scheme.” The first Garmon exception is “where the activity regulated [is] a merely peripheral concern” of the NLRA. For example, even though the NLRA permits employers to hire replacement workers during a strike, the Court allowed a replacement worker’s breach of contract and misrepresentation claims to proceed against the employer. In explaining that the agreements between employers and replacement workers were only peripheral concerns of the NLRA, the Court concluded that the NLRA did not require courts “to hold that either the employer or the union is . . . free to injure innocent third parties without regard to the normal rules of law governing those relationships.” The second, and related, Garmon exception is “where the regulated conduct touch[es] interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.” Courts must consider whether “there exist[s] a significant state interest in protecting the citizen from the challenged conduct” and whether “the exercise of state jurisdiction over the [state] claim entail [s] little risk of interference with the regulatory jurisdiction of the [NLRB].” Under this exception, the Court has held, for example, that the NLRA does not preempt certain state law claims alleging intentional torts — including threats of violence, trespass, intentional infliction of emotional distress, malicious interference with a lawful occupation, and malicious libel. When the conduct at issue in the state litigation is “arguably prohibited” by the NLRA and thus within the exclusive jurisdiction of the NLRB, the critical inquiry in determining whether an exception applies “is whether the controversy presented to the state court is identical with that which could be presented to the Board.” When it is identical, the Court has determined that states cannot subject violators to “a supplemental sanction for violations of the NLRA . . . .” C. THE LMRDA Congress enacted the Labor-Management Reporting and Disclosure Act in 1959 as “the product of congressional concern with widespread abuses of power by union leadership.” The United States Supreme Court explained that “allegations of union wrongdoing led to extended congressional inquiry” and resulted in “enlarged protection for members of unions paralleling certain rights guaranteed by the Federal Constitution; not surprisingly, these amendments . . . were introduced under the title of ‘Bill of Rights of Members of Labor Organizations.’ ” The LMRDA’s Bill of Rights of Members of Labor Organizations protects union members’ freedom of expression and assembly: Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings!.[ ] It also provides union members with procedural protections against discipline by the union: No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served wdth written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.[ ] “Any person whose rights secured by the [Bill of Rights of Members of Labor Organizations] have been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate.” In Finnegan v Leu, the Supreme Court explained that “[i]t is readily apparent, both from the language of these provisions and from the legislative history. .., that it was rank-and-file union members — not union officers or employees, as such — whom Congress sought to protect.” The Court explained that when plaintiffs have “dual status as both employees and members of the Union,” the LMRDA only provides a member/employee with protection from discipline in his or her capacity as a member, not in his or her capacity as an employee: [T]he term “discipline” ... refers only to retaliatory actions that affect a union member’s rights or status as a member of the union.... In contrast, discharge from union employment does not impinge upon the incidents of union membership, and affects union members only to the extent that they happen also to be union employees.[ ] This limitation ensures “the freedom of an elected union leader to choose a staff whose views are compatible with his own.” This is “an integral part” of the LMRDA’s purpose “of ensuring a union administration’s responsiveness to the mandate of the union election.” Finnegan did not examine the LMRDA in the context of preemption — no Supreme Court decision has — but several lower courts have done so. Because conduct protected under the LMRDA does not extend to a union member/employee’s rights as an employee, a state-law retaliation claim brought by a union employee as an employee is preempted to the extent that it conflicts with the LMRDA’s purposes. Because “the courts have been reluctant to interfere with the right of elected union officers to select their own administrators,” which is protected under the LMRDA, we likewise hold that the LMRDA preempts state law that would unduly limit the discretion of union officials to select their employees. As a result, when a union employee brings a state-law retaliation claim as an employee, we must analyze whether the claim conflicts with the LMRDA’s “purpose and goal of protecting democratic processes in union leadership.” In Packowski v United Food & Commercial Workers Local 951, for example, the Court of Appeals explained that “ [i]f union members cannot choose their leaders, or if the chosen leaders cannot implement the policies they were elected to implement, then the rights of union members (as represented by their elected leaders) would be thwarted, or at least diminished.” Nevertheless, a state-law retaliation claim is not preempted when it does not conflict with the purposes of the LMRDA. Indeed, courts have recognized that the discretion the LMRDA affords unions to choose their employees is not limitless. In Bloom v Gen Truck Drivers, Office, Food & Warehouse Union, the United States Court of Appeals for the Ninth Circuit held that the LMRDA did not preempt a state claim for wrongful discharge after a union employee refused to illegally alter the minutes of a union meeting. The court balanced the state’s interest in deterring crime with the purpose of the LMRDA, explaining that “[i]f federal labor law preempts such a cause of action, the deterrent effect is lost and nothing prevents unscrupulous employers from forcing employees to choose between committing crimes and losing their jobs.” Furthermore, “[t]he kind of discharge alleged, retaliation for refusal to commit a crime and breach a trust, is not the kind sanctioned by the Act” to further the goals and policies of elected union officials. Rather, “[protecting such a discharge by preempting a state cause of action based on it does nothing to serve union democracy or the rights of union members; it serves only to encourage and conceal such criminal acts and coercion by union leaders.” We adopt the exception to LMRDA preemption articulated in Bloom and related cases. Accordingly, we hold that the LMRDA does not preempt state wrongful-termination claims in cases in which elected union officials attempt to use their discretion as a shield to hide alleged criminal misconduct. To hold otherwise would undermine the explicit purpose of the LMRDA “to eliminate or prevent improper practices on the part of labor organizations, employers, labor relations consultants, and their officers and representatives .. . .” In fact, protecting union employees from retaliation when they raise claims of criminal wrongdoing helps to protect the interests of rank-and-file union members and safeguard union democracy and, as a result, achieve the purposes of the LMRDA. D. THE WPA The Legislature enacted the WPA in 1980 to “ ‘provide protection to employees who report a violation or suspected violation of state, local, or federal law. . . ” The WPA “remove[s] barriers that may interfere with employee efforts to report those violations or suspected violations, thus establishing a cause of action for an employee who has suffered an adverse employment action for reporting or being about to report a violation or suspected violation of the law.” MCL 15.362 specifically regulates an employer’s retaliation against employees who report a violation or suspected violation of law: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. Defendants argue that federal law preempts plaintiffs’ WPA claims. Because courts examine preemption under the NLRA separately from preemption under the LMRDA, as shown earlier, we will likewise consider each federal statute separately in determining whether federal law preempts plaintiffs’ WPA actions. IV APPLICATION A. NLRA PREEMPTION In assessing claims of NLRA preemption, the Supreme Court has clarified that “[i]t is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern.” The specific conduct alleged in plaintiffs’ WPA claims is that defendants unlawfully retaliated against them for their reporting of suspected wrongdoing to the United States Department of Labor. Plaintiffs’ allegations of wrongdoing fall into two general categories: (1) improper working conditions — that workers were paid unfairly and were not provided with necessary safety precautions — and (2) criminality — that defendants were engaged in fraud, embezzlement, and misuse of union funds. Because a court may separate preempted claims from nonpreempted claims, we will examine each category of claims separately in determining whether the NLRA preempts plaintiffs’ claims. As stated, the threshold inquiry in determining whether the NLRA preempts state-law claims is to determine whether “an activity is arguably subject to § 7 or § 8 of the Act. . . .” Among other protections, § 7 of the NLRA provides employees the right “to form, join, or assist labor organizations” and “engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” These rights are intertwined: “Basic to the right guaranteed to employees in § 7 to form, join or assist labor organizations, is the right to engage in concerted activities to persuade other employees to join for their mutual aid and protection.” Defendants claim that all of plaintiffs’ activities are “arguably subject” to § 7. The Court has held that the “mutual aid or protection clause” in § 7 “protects employees from retaliation by their employers when they seek to improve working conditions through resort to administrative and judicial forums,” among other activities intended to improve working conditions. Similarly, the relevant inquiry in examining whether activity is “concerted” within the meaning of the NLRA is “whether the employee acted with the purpose of furthering group goals.” Plaintiffs unquestionably acted with the purpose of furthering group goals when they disputed the working conditions for union members. Their claims of unfair wages and an unsafe work environment are prototypical issues of dispute under the NLRA. As a result, plaintiffs’ conduct to improve unfair wages and an unsafe work environment is arguably protected under § 7 of the NLRA. Furthermore, § 8 specifically prohibits defendants from retaliating against plaintiffs for engaging in conduct protected under § 7. Accordingly, plaintiffs’ conduct regarding working conditions satisfies the initial Garmon threshold, such that federal law would preempt state law unless one of the two exceptions applies. Moreover, neither of the two exceptions to the NLRA applies to plaintiffs’ concerted activity regarding work ing conditions. First, working conditions are of central, not peripheral, concern to the NLRA’s purposes. As stated, the NLRA specifically sought to protect the right of employees to organize to improve their working conditions. Relatedly, because this protection has been central to the NLRA’s purposes for nearly 80 years, the more recent attempt of the WPA to regulate retaliation for an alleged unfair labor practice does not “touchD interests so deeply rooted in local feeling and responsibility” that the Court could not infer that Congress intended the NLRB to have exclusive jurisdiction over a state whistleblower claim arising out of complaints regarding an employer’s improper working conditions. Indeed, allowing plaintiffs’ WPA claim regarding defendants’ working conditions would amount to “a supplemental sanction for violations of the NLRA,” which the NLRA prohibits. Nevertheless, in addition to their claims of retaliation for reporting working conditions, plaintiffs also make independent assertions that defendants retaliated against them for reporting allegations of criminal misconduct. Plaintiffs reported to the Department of Labor and reiterated in the instant WPA complaints that union members were receiving money “paid out of the Union treasury . . . attributed to Ticket line’ duty when that clearly was not the case” and that they reported “their suspicions of fraud and illegal activity on the part of their employer.” Indeed, in recognizing the potential illegal nature of the union officials’ ac tions, the Department of Labor referred the matter for investigation by an Assistant United States Attorney. While the NLRA regulates employees’ concerted activities for their mutual aid or protection, it simply does not regulate the reporting of federal and state crimes. Section 7 is not so broad as to protect all employees’ concerted activities. “[A]t some point the relationship” between the concerted activity and the “employees’ interests as employees .. . becomes so attenuated that an activity cannot fairly be deemed to come within the ‘mutual aid or protection’ clause.” The NLRB has explained that protection under § 7 “can be lost whenever employee communications to third parties do not relate to [the] labor practices of the employer .. . .” The allegations of criminal misconduct that plaintiffs communicated to the Department of Labor do not relate to the employer’s labor practices. Rather, a state court can adjudicate the underlying allegations of embezzle ment and other criminal misconduct without having to consider an employer’s labor practices or whether employees engaged in protected activity in reporting those allegations. By contrast, the relationship between allegations of improper working conditions and employees’ protected activity gets to the heart of the employer’s labor practices. The crux of the partial dissent’s disagreement with our analysis is over whether plaintiffs’ assertions of defendants’ violations of the federal laws regarding their fiduciary obligations toward the union and protecting union funds from embezzlement are arguably within the right of an employee under § 7 to “assist labor organizations.” Courts ordinarily have examined the phrase “form, join, or assist labor organizations” in § 7 in its entirety, suggesting a continuum of protections. Yet when the term “assist” has been given independent force, it appears in the context of a nonmember’s assistance to the labor organization. Furthermore, even when interpreting the term “assist” independently, courts have examined it in the context of the phrase “mutual aid or protection,” perhaps because assisting a labor organization is supposed to be for the mutual aid or protection of the employees that it represents. For all these reasons, the partial dissent’s focus on the phrase “assisting] labor organizations” without reference to the “mutual aid or protection” analysis is unpersuasive. Even if the underlying allegations of criminal misconduct brought to light by concerted activity arguably relate to an employer’s labor practices, enforcement of well-established criminal law is at the heart of a state’s police power and is “so deeply rooted in local feeling and responsibility” that we cannot infer that Congress intended when it enacted the NLRA to relieve states from enforcing that well-established criminal law or protecting from retaliation employees who report allegations of criminal wrongdoing. A state’s prohibition of adverse employment actions resulting from the reporting of suspected criminal misconduct does not “ ‘frustrate effective implementation of the Act’s processes.’ ” Moreover, when there are “discrete concerns of the federal scheme and the state tort law, that potential for interference is insufficient to counterbalance the legitimate and substantial interest of the State in protecting its citizens.” In this case, the state has a deeply rooted and substantial interest in enforcing its criminal law, which the NLRB has no authority to enforce and which the WPA assists by protecting employees who report allegations of criminal misconduct. Because these interests are separate from the interests articulated in the NLRA, we hold that the NLRA does not preempt the WPA with respect to plaintiffs’ claims alleging retaliation for reporting defendants’ criminal wrongdoing. B. LMRDA PREEMPTION Defendants also assert that the LMRDA preempts plaintiffs’ WPA claims. As stated, the LMRDA safeguards union democracy by protecting union members’ right to free expression and by providing democratically elected union leaders wide discretion in pursuing the policies that they were elected to accomplish. The Supreme Court held in Finnegan that “the freedom of an elected union leader to choose a staff whose views are compatible with his own” is “an integral part” of the LMRDA’s protections because an elected union leadership must be responsive “to the mandate of the union election.” However, Finnegan does not stand for the proposition that the LMRDA gives an elected union leader unfettered discretion with respect to employment matters. Although the LMRDA does not provide union employees who have been terminated a cause of action for retaliation taken against them as employees, this does not lead to the conclusion that states are completely forbidden from restricting a union leader’s discretion to terminate a union employee. Rather, if a union retaliates against a union employee as an employee, then any underlying state-law retaliation claim is only preempted to the extent that it conflicts with the purposes of the LMRDA. The LMRDA is contrasted against the more expansive federal preemption doctrine of the NLRA — states are afforded considerably more freedom to supplement the LMRDA federal scheme as long as no conflict arises between state law and the LMRDA. Moreover, although the saving clauses of the LMRDA do not directly apply to save plaintiffs’ civil action, they do support a finding that the LMRDA both recognizes a strong state interest in protecting against criminal misconduct and implicitly approves plaintiffs’ cause of action. Accordingly, the exception to a union employer’s discretion for allegations of criminal misconduct is conclusive in this case. A union employer’s 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. Of course, while Bloom involved union employees who claim that they were fired for refusing to commit crimes themselves, this case involves union employees who claim that they were fired for reporting union officials’ alleged crimes. This distinction is without a difference because, in both cases, the relationship between the state-law claim and the LMRDA is identical: the union employer is retaliating against employees and, in doing so, trying to shield alleged criminal misconduct from union rank-and-file membership and the public. Moreover, in both cases, the state-law claims are consistent with the LMRDA’s expressly stated purposes of abating union corruption and breaches of trust. As a result, the LMRDA allows state-law retaliation claims to proceed in state courts. Therefore, we hold that plaintiffs’ WPA claims premised on their reporting of defendants’ al leged criminal misconduct survive defendants’ assertion of LMRDA preemption. V CONCLUSION The Court of Appeals correctly determined that federal law did not preempt plaintiffs’ WPA claims premised on their allegations of criminal misconduct. However, the court did not distinguish these WPA claims from plaintiffs’ claims involving defendants’ working conditions. As a result, we affirm the Court of Appeals’ decision only in part. Going forward, plaintiffs may only pursue in state court their WPA claims involving retaliation for their reporting of alleged illegal conduct to a public body or bodies. Because neither the NLRA nor the LMRDA preempts plaintiffs’ WPA claims to the extent that they allege retaliation for reporting criminal misconduct such as fraud and embezzlement, state courts have subject-matter jurisdiction over those claims. Accordingly, we affirm in part the decision of the Court of Appeals and remand this case to the Wayne Circuit Court for further proceedings consistent with our opinion. Young, C.J., and Cavanagh, Markman, McCormack, and Viviano, JJ., concurred with Kelly, J. MCL 15.361 et seq. 29 USC 151 et seq. 29 USC 401 et seq. 29 USC 157. 29 USC 158. San Diego Bldg Trades Council v Garmon, 359 US 236, 245; 79 S Ct 773; 3 L Ed 2d 775 (1959). 29 USC 157; 29 USC 158(a)(1). 29 USC 411(a)(1), (2), and (5). MCL 15.362. The parties dispute the nature of the TULC. Defendants characterize the TULC as a “community-focused, non-profit entity” that provides training for laid-off employees, while plaintiffs claim that it is a “private entity separate and distinct from Local 1191” that “is licensed to sell liquor.” Henry and White also claim that they contacted the Michigan Department of Labor, although the lower court record only contains a formal report from the United States Department of Labor. Defendants frame plaintiffs’ conduct in this case as primarily focused on working conditions, not about alleged criminal misconduct. However, the record belies this assertion and confirms that plaintiffs reported alleged criminal behavior to a public body. Indeed, the Department of Labor report focuses on the alleged criminal misconduct. Although major portions of the Department of Labor report are redacted in the record presented to this Court, including the reason that the Assistant United States Attorney declined to intervene, the report indicates that the Department of Labor considers the matter closed. Ramsey also claimed that Ruedisueli asked him to lie at a deposition in the Hemy/White lawsuit and that his refusal to do so constituted another reason for his termination. Defendants did not seek summary disposition on Ramsey’s allegation that he was terminated for refusing to lie at his deposition. As a result, it is not part of the appeal before this Court. MCR 2.116(C)(4). Henry v Laborers Local 1191, unpublished opinion per curiam of the Court of Appeals, issued July 3, 2012 (Docket Nos. 302373 and 302710). Id. at 5. Id. at 3, quoting Packowski v United Food & Commercial Workers Local 951, 289 Mich App 132, 146; 796 NW2d 94 (2010). Henry, unpub op at 6, citing Roussel v St Joseph Hosp, 257 F Supp 2d 280, 285 (D Maine, 2003). Henry v Laborers Local 1191, 493 Mich 934, 934-935 (2013). Only Local 1191 and Aaron appealed the Court of Appeals’ decision. Whether federal statutory law preempts state law is a question of statutory interpretation. Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008). Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 205; 631 NW2d 733 (2001). MCR 2.116(G)(5). M'Culloch v Maryland, 17 US (4 Wheat) 316, 405; 4 L Ed 579 (1819). US Const, art VI, cl 2. Cooley, Constitutional Law (1880), p 32. Cipollone v Liggett Group, Inc, 505 US 504, 516; 112 S Ct 2608; 120 L Ed 2d 407 (1992), quoting Rice v Santa Fe Elevator Corp, 331 US 218, 230; 67 S Ct 1146; 91 L Ed 1447 (1947). English v Gen Electric Co, 496 US 72, 78-79; 110 S Ct 2270; 110 L Ed 2d 65 (1990). Id. Of course, “when Congress has made its intent known through explicit statutory language, the courts’ task is an easy one.” Id. at 79. Id. Determining whether Congress intended the federal government to occupy an entire field requires examining whether “ ‘the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’ ” Id., quoting Rice, 331 US at 230. English, 496 US at 79. The Court had held that federal law conflicts with state law “where it is impossible for a private party to comply with both state and federal requirements,” or “where state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Id., quoting Hines v Davidowitz, 312 US 52, 67; 61 S Ct 399; 85 L Ed 581 (1941). Hines, 312 US at 67. 29 USC 151. Sears, Roebuck & Co v San Diego Co Dist Council of Carpenters, 436 US 180, 190; 98 S Ct 1745; 56 L Ed 2d 209 (1978). Id. The Court upheld the constitutionality of the NLRA against a Commerce Clause challenge in NLRB v Jones & Laughlin Steel Corp, 301 US 1; 57 S Ct 615; 81 L Ed 893 (1937). 29 USC 157. 29 USC 158(a)(1). 29 USC 160(a). Garmon, 359 US at 242-243, quoting Garner v Teamsters, Chauffeurs & Helpers Local Union No 776, 346 US 485, 490-491; 74 S Ct 161; 98 L Ed 228 (1953). Amalgamated Ass’n of Street, Electric R & Motor Coach Employees v Lockridge, 403 US 274, 286; 91 S Ct 1909; 29 L Ed 2d 473 (1971). Id. at 276. Garmon, 359 US at 244. Id. at 244-245. Id. at 245. Int’l Longshoreman’s Ass’n v Davis, 476 US 380, 395; 106 S Ct 1904; 90 L Ed 2d 389 (1986). Id. Farmer v United Brotherhood of Carpenters & Joiners, 430 US 290, 295-296; 97 S Ct 1056; 51 L Ed 2d 338 (1977), quoting Lockridge, 403 US at 289. Farmer, 430 US at 297. Garmon, 359 US at 243. Belknap, Inc v Hale, 463 US 491, 500; 103 S Ct 3172; 77 L Ed 2d 798 (1983). Id. Garmon, 359 US at 244. Sears, Roebuck, 436 US at 196. Youngdahl v Rainfair, Inc, 355 US 131, 139; 78 S Ct 206; 2 L Ed 2d 151 (1957). Sears, Roebuck, 436 US at 207. Farmer, 430 US at 302. UAW v Russell, 356 US 634, 646; 78 S Ct 932; 2 L Ed 2d 1030 (1958). Linn v United Plant Guard Workers, 383 US 53, 62; 86 S Ct 657; 15 L Ed 2d 582 (1966). Belknap, 463 US at 510. Of course, a conclusion that the NLRA preempts a state law claim does not require the claim to have been presented to the NLRB. Rather, the claim is preempted if it could have been presented there and neither of the exceptions applies. Moreover, even if a claim is preempted, the NLRB may decide not to exercise its jurisdiction on a particular claim. Nevertheless, whether the NLRB will exercise its jurisdiction (or has been given an option to exercise its jurisdiction) is distinct from whether the NLRB has jurisdiction over the claim. Calabrese v Tendercare of Mich, Inc, 262 Mich App 256, 264; 685 NW2d 313 (2004). Wisconsin Dep’t of Indus, Labor & Human Relations v Gould Inc, 475 US 282, 288; 106 S Ct 1057; 89 L Ed 2d 223 (1986). Finnegan u Leu, 456 US 431, 435; 102 S Ct 1867; 72 L Ed 2d 239 (1982). The LMRDA is also known as the Landrum-Griffin Act. Black’s Law Dictionary (9th ed), p 957. One of the LMRDA’s principal coauthors, then Representative Robert E Griffin, served on this Court from 1987 to 1994. Finnegan, 456 US at 435. 29 USC 411(a)(2). 29 USC 411(a)(5). 29 USC 412. The LMRDA also contains two saving provisions. The title containing the Bill of Rights specifies that “[n]othing contained in this title shall limit the rights and remedies of any member of a labor organization under any State or Federal law or before any court or other tribunal, or under the constitution and bylaws of any labor organization.” 29 USC 413. Additionally, the LMRDA generally states: Except as explicitly provided to the contrary, nothing in this Act shall reduce or limit the responsibilities of any labor organization or any officer, agent, shop steward, or other representative of a labor organization, or of any trust in which a labor organiza tion is interested, under any other Federal law or under the laws of any State, and, except as explicitly provided to the contrary, nothing in this Act shall take away any right or bar any remedy to which members of a labor organization are entitled under such other Federal law or law of any State. [29 USC 523(a).] Finnegan, 456 US at 436-437. Id. at 437. Id. at 437-438. Id. at 441. Id. Cehaich v UAW, 710 F2d 234, 239 (CA 6, 1983). Packowski, 289 Mich App at 149. Id. Because the instant WPA claims implicate allegations of criminal wrongdoing not existing in Packowski, we need not — and do not— determine the validity of the LMRDA preemption doctrine used by the Court of Appeals in Packowski. Bloom v Gen Truck Drivers, Office, Food & Warehouse Union, 783 F2d 1356 (CA 9, 1986). Id. at 1361 Id. at 1362. Id. Similarly, two years after Bloom, the Colorado Court of Appeals held that the LMRDA did not preempt a state-law wrongful-discharge claim “insofar as [the plaintiff] allege[d] that he was discharged because he refused to aid [the union’s business manager] in his alleged criminal misuse of union funds.” Montoya v Int’l Brotherhood of Electrical Workers Local Union III, 755 P2d 1221, 1224 (Colo App, 1988). 29 USC 401(c). See also 29 USC 401(b) (finding that “there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct”). Whitman v City of Burton, 493 Mich 303, 312; 831 NW2d 223 (2013), quoting the title of 1980 PA 469. Whitman, 493 Mich at 312, citing Dolan v Continental Airlines/Continental Express, 454 Mich 373, 378-379; 563 NW2d 23 (1997). Although defendants raised this issue of NLRA preemption for the first time before the Court of Appeals, preemption is a question of subject-matter jurisdiction. As such, this Court must consider it. Davis, 476 US at 393 (“A claim of Garmon pre-emption is a claim that the state court has no power to adjudicate the subject matter of the case, and when a claim of Garmon pre-emption is raised, it must be considered and resolved by the state court.”). Lockridge, 403 US at 292. See Farmer, 430 US at 301-302 (noting that a rigid application of Garmon might support the conclusion that the “entire action was preempted by federal law” but in this case allowing only a claim of intentional infliction of emotional distress to proceed in state court). Garmon, 359 US at 245. 29 USC 157. NLRB v Drivers, Chauffeurs, Helpers, Local Union No 639, 362 US 274, 279; 80 S Ct 706; 4 L Ed 2d 710 (1960). Eastex, Inc v NLRB, 437 US 556, 566; 98 S Ct 2505; 57 L Ed 2d 428 (1978). Compuware Corp v NLRB, 134 F3d 1285, 1288 (CA 6, 1998). See Platt v Jack Cooper Transp, Co, Inc, 959 F2d 91, 94 (CA 8, 1992) (“Platt’s claim that he was discharged in retaliation for making safety complaints satisfies the threshold test for Garmon preemption.”). Plaintiffs argue that union members were not employees within the meaning of the NLRA and that, as a result, they were not engaging in concerted activities. Rather, plaintiffs characterize the union members who worked on the TULC project as volunteers who are not protected by the NLRA. Indeed, the NLRB has stated that unpaid volunteers are not employees within the meaning of the NLRA because “there is no economic aspect to their relationship with the Employer, either actual or anticipated.” WBAI Pacifica Foundation and United Electrical, Radio & Machine Workers of America, 328 NLRB 1273, 1275 (1999). Nevertheless, we reject this argument as it applies to plaintiffs. The union members who worked on the TULC project did have an economic aspect to their relationship with the union — they were engaged in work for hire and “receive[d] compensation for labor or services” in the amount of $30 a day. Id. More importantly, there is no question that plaintiffs were employees within the meaning of the NLRA and that they were allegedly retaliated against for complaining to their employer about its labor practices. Garmon, 359 US at 244. Gould, 475 US at 288. These assertions are independent in the sense that they do not rely on the working-condition assertions for their validity and, accordingly, can he assessed separately from them. The Department of Labor’s investigation report corroborates this claim and states that the department investigated allegations that Aaron “stole or misused strike/picket funds.” That the Department of Labor referred the matter to the United States Attorney’s office corroborates this claim. While the partial dissent correctly identifies 29 USC 501(c), the federal law prohibiting embezzlement from a union, as relevant to this case, its significance as a criminal offense outside the NLRA shows why reporting a suspected violation of 29 USC 501(c) does not arguably fall within the protections of the NLRA. Significantly, while the NLRB “is empowered ... to prevent any person from engaging in any unfair labor practice,” 29 USC 160(a), the power of the NLRB does not extend to enforce 29 USC 501(c) or, indeed, any criminal law. See Republic Steel Corp v NLRB, 311 US 7, 10; 61 S Ct 77; 85 L Ed 6 (1940) (stating that the NLRA “does not carry a penal program declaring the described unfair labor practices to be crimes” and “does not prescribe penalties or fines in vindication of public rights or provide indemnity against community losses as distinguished from the protection and compensation of employees”). Eastex, 437 US at 567-568. Handicabs, Inc and Trail, 318 NLRB 890, 896 (1995). The fact that the NLRB provided nonexclusive examples of unprotected conduct when stating this rule does not render the rule any less relevant to this circumstance — there must be a relationship between the communication and the employees’ interests as employees. Indeed, one hypothetical scenario suffices to illustrate why this is so. Suppose that plaintiffs’ claim of improper wage and unsafe working conditions simply did not exist and, instead, that defendants paid union members a bargained-for wage and the members repaired the TULC building under safe working conditions. In this scenario, plaintiffs would still be able to allege that defendants misappropriated union funds for unlawfully paying those union members their bargained-for wage out of the picket fund when the members did not actually engage in picket duty and that defendants received illegal kickbacks from the TULC. By stripping away plaintiffs’ claims of unsafe working conditions and unfair wages that are preempted by the NLRA, it becomes clear that plaintiffs’ criminal-misconduct claims exist independently. Southern Greyhound Lines and Anderson, 169 NLRB 627, 628 (1968) (“It is well settled that Section 7 of the Act protects an employee in his right to assist a labor organization regardless of whether he is eligible for membership in it. . . .”). See also Signal Oil & Gas Co v NLRB, 390 F 338, 343 (CA 9, 1968) (affirming the trial examiner’s finding that the employee’s prounion speech “ ‘may he regarded as an expression of support for the proposed union activity of his fellow employees, made in anticipation that he or his group might receive similar support should the occasion arise’ ”). NLRB v Rockaway News Supply Co, 197 F2d 111, 113 (CA2, 1952) (stating that a nonmemher’s refusal to cross a picket line ‘‘is frequently of assistance to the labor organization whose picket line is respected, and it is in a broad but very real sense directed to mutual aid or protection"), aff'd 345 US 71 (1953) (emphasis added). Garmon, 359 US at 244. See, e.g., Metro Life Ins Co v Massachusetts, 471 US 724, 756; 105 S Ct 2380; 85 L Ed 2d 728 (1985) (holding that the NLRA does not preempt state police power even to the extent that the police power prescribes minimum labor standards applicable to employers). Int’l Ass’n of Machinists & Aerospace Workers v Wisconsin Employment Relations Comm, 427 US 132, 148; 96 S Ct 2548; 49 L Ed 2d 396 (1976), quoting Brotherhood of R Trainmen v Jacksonville Terminal Co, 394 US 369, 380; 89 S Ct 1109; 22 L Ed 2d 344 (1969). Farmer, 430 US at 304. In addition to alleging violations of federal criminal statutes, plaintiffs also alleged violation of MCL 750.174, the state-law crime of embezzlement. Republic Steel, 311 US at 10 (“[The NLRA] does not prescribe penalties or fines in vindication of public rights or provide indemnity against community losses as distinguished from the protection and compensation of employees.”). The partial dissent cites Kilb v First Student Transp, LLC, 157 Wash App 280; 236 P3d 968 (2010), for the proposition that the NLRA preempted a state-law retaliation claim alleging that the plaintiff was discharged for attempting to assist a union. However, the retaliation in Kilb did not implicate the state’s interest in enforcing its criminal law. Rather, the plaintiff claimed that he was discharged from his supervisory position for refusing to undertake antiunion tactics and that “his discharge violated the right of employees to organize and form unions, ... in contravention of Washington State’s clearly established public policy against interfering with these rights.” Id. at 284 (citation omitted). Unlike here, then, the conduct at issue in Kilb was directly within the NLRA’s protections. Id. at 288 (“An employer’s discharge of a supervisor for refusing to commit unfair labor practices is, at least arguably, a violation of [29 USC 158(a)(1)].”). Because we hold that the NLRA preempts plaintiffs’ WPA claims to the extent that they allege defendants’ unfair labor practices related to working conditions, we need not examine those preempted claims within the context of the LMRDA. Accordingly, our analysis of the LMRDA focuses only on plaintiffs’ claims relating to their allegations of defendants’ criminal activity. Finnegan, 456 US at 441. We also note that, unlike the NLRA, the LMRDA does not create a separate administrative hoard to consider violations of its provisions. Rather, it creates a cause of action that a union member may pursue in a district court of the United States. 29 USC 412. See Bloom, 783 F2d at 1361-1362. As stated, this decision does not involve Ramsey’s separate and individual allegation that he was terminated for refusing to peijure himself.
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KELLY, J. Gang-related violence pervades our country, including Michigan, and is not likely to abate anytime soon. In trials of crimes involving gang-related vio lence, prosecutors across the state now seek to introduce expert testimony to help a jury understand the importance of particular fact evidence and the context in which the gang-related violence occurs. This case involves the application of the Michigan Rules of Evidence to that expert testimony. We hold that if the prosecution presents fact evidence to show that the crime at issue is gang-related, expert testimony about gangs, gang membership, and gang culture may be admitted as relevant under MRE 402 and of “assistance] [to] the trier of fact to understand the evidence or to determine a fact in issue” under MRE 702. In establishing the requirements of these rules, the prosecution may use an expert to identify the significance of certain fact evidence — such as symbols, clothing, or tattoos — that, by itself, would not be understood by the average juror to be connected with gangs or gang-related violence. In applying MRE 402 and MRE 702 to the facts of this case, we conclude that the trial court appropriately exercised its role as gatekeeper in determining that expert testimony about gangs and gang culture would assist the jury in understanding the evidence. Nevertheless, there are limits to what an expert may opine, even when there is an appropriate foundation that the crime at issue is gang-related. Accordingly, we also hold that MRE 404(a) precludes testimony that is specifically used to show that, on a particular occasion, a gang member acted in conformity with character traits commonly associated with gang members. The expert witness in this case exceeded these limitations when he provided his opinion that defendant committed the crimes at issue because he acted in conformity with his gang membership. Specifically, the expert witness testified that because the defendant was a gang member, he was “posted up at” the scene of the crime “with a purpose,” namely, to give him and his fellow gang members “the chance to shoot” at someone and defend the gang’s turf. This improper character testimony affected both the element of premeditation in the first-degree-murder charge against defendant and the self-defense claim that defendant raised with respect to both first-degree murder and the lesser included offense of second-degree-murder. We therefore affirm the result of the Court of Appeals and remand this case to the Calhoun Circuit Court for a new trial. I. FACTS AND PROCEDURAL HISTORY On the evening of August 28, 2010, defendant, Levon Lee Bynum, was among a crowd of about 10 to 15 people gathered outside a party store in Battle Creek. Bynum and some of the other crowd members are alleged to be members of the Boardman Boys gang, the “territory” or “turf” of which borders the party store. Shortly before midnight, a Cadillac DeVille containing four people— Larry Carter, Josh Mitchell, Brandon Davis, and Darese Smith — arrived at the party store’s parking lot. According to Mitchell, they were there to purchase Swisher Sweets and vodka so they could continue their all-day consumption of alcohol and marijuana, which they had begun at “bird-chirpin[’] time” that morning. The crowd directed its attention toward the parking lot’s newcomers, and Carter and Bynum exchanged words, although exactly what was said is in dispute. Nevertheless, these words resulted in Carter punching Bynum. In response, Bynum and two others began shooting with the firearms that they had been carrying, causing Carter, Mitchell, Davis, and Smith to take shelter inside the party store. Carter collapsed on the floor of the party store and lay in a pool of his blood when first responders arrived and unsuccessfully attempted to resuscitate him. Mitchell and Davis discovered that they had also been shot. Unlike Carter, they survived their injuries after being transported to the hospital. Battle Creek police identified Bynum and the other shooters from the surveillance video of the party store’s parking lot. During police questioning, Bynum denied knowing Carter and the- other victims and initially claimed that he had fired multiple times in the air to scare them off because he believed they posed a threat to his safety. However, Bynum later admitted that it was possible that he had hit Carter, stating that “[b]ullets don’t have names.” At all times, however, Bynum stated that he acted in self-defense, observing that he carried a gun only because “it’s not safe to walk nowhere .. . .” Bynum was arrested and bound over for trial in the Calhoun Circuit Court on charges of first-degree murder for the death of Carter, two counts of assault with intent to murder for the shootings of Mitchell and Davis, 6 carrying a concealed weapon, and felony-firearm. In addition to calling Mitchell and Davis as eyewitnesses, the prosecution called Battle Creek Police Officers James Bailey and Tyler Sutherland to testify about the circumstances of the crime. Both officers are part of the Battle Creek Police Department’s Gang Suppression Unit. Bailey helped to investigate the shooting at the party store and testified that Bynum was a known member of the Boardman Boys gang. He also identified other members of the gang from the surveillance video. Sutherland was proffered as an expert witness on gangs, gang membership, and gang culture, including his particular expertise about Battle Creek gangs. Before Sutherland’s testimony, the prosecution filed a motion in limine to allow Sutherland to present a PowerPoint presentation about gangs and gang culture that connected Bynum to the Boardman Boys gang and showed how Battle Creek gangs, including the Board-man Boys, appropriated symbolism from nationally organized gangs like the Bloods and the Crips. Defense counsel opposed the motion in limine and asserted in his written response that the presentation’s “potential prejudicial impact far and away outweighs whatever trivial probative value it may possess.” Moreover, counsel claimed that the prosecution did not need the presentation to “introduce evidence via testimony of gang association and/or rivalries . . ..” The court took the matter under advisement. During trial, the court revisited the issue. Defense counsel reiterated that he was “still objecting to the use of essentially most of this testimony on the basis that it is more prejudicial than probative.” Specifically, he claimed that it was “not particularly relevant.. . whether [Bynum] is in [a] gang or not,” although defense counsel also admitted that Sutherland could “offer his . .. testimony as to associations and behavior and conduct of these groups . . . .” Even so, photographs and references “to gangs on a national stage that [Bynum] is not a member of [are] more prejudicial [than] probative.” The court allowed Sutherland’s testimony and PowerPoint presentations to proceed on the basis that the evidence was relevant to prove Bynum’s motive for shooting Carter, Mitchell, and Davis. However, it cautioned that it did not want the proposed testimony to “contain evidence simply relating to . . . the fact that [Bynum] is quote/unquote a bad person by virtue of the commission of. . . wanton offenses as part of what a gang does.” As a result, the court “restricted] the presentation to a question and response format so that [defense counsel] can object to particular issues if he finds the basis to do so ....” In his testimony, Sutherland defined a gang as “a group of three or more individuals” who “collectively engage in criminal activity” and “identify themselves by a gang name,” usually a street name or a geographical area corresponding to their turf. They also “adopt certain signs and symbols that they like from nationally recognized gangs,” using them as “key identifiers” in their tattoos, graffiti, and clothes. According to Sutherland, the Boardman Boys satisfied the definition of a gang and often used a unique style of the letter “B” and a five-pointed star as their symbols, and Bynum had his street nickname, “Cannon,” tattooed on his person. One of the key principles of gang culture, Sutherland explained, is that a gang enforces respect on its turf through power and fear. Gang members take “every opportunity they can to show how powerful they are.” Moreover, the Boardman Boys were engaged in an ongoing turf war with a rival gang, and the party store where these crimes occurred sits on the border between the two gangs’ turfs. Sutherland also discussed the different levels of gang membership: hardcore members (who are the leaders of the gang), associates (who are in the gang and “trying to increase their status”), and fringe members (who “want to be seen with the gang” but do not want to commit the gang’s crimes). Bynum was a “hardcore member,” according to Sutherland, “because of what he’s done [and] what people have told us he’s done.” In particular, Bynum and other hardcore members “are the ones in the police reports” and are identified by people in the neighborhood as “committing the most violent crime[s] out of all the members in this gang.” Finally, Sutherland turned to the events at the party store, explaining that if Bynum and other members of the gang had not reacted to what they had perceived was a sign of Carter’s disrespect, both the individual members who were slighted and the gang itself would have lost respect in the ongoing turf war. He also expressed his opinion of Bynum’s state of mind at the time of the shooting: [W]hen I see that incident, when I watch the video, they [the gang members, including Bynum] are all posted up at the store with a purpose. When they went to that store that day, they didn’t know who they were going to beat up or shoot, but they went up there waiting for someone to give them the chance. “Make us-give me [i.e., Bynum] a reason to--to shoot [you], to fight you, to show how tough we are, the Boardman Boys, on our turf.” Defense counsel did not specifically object to any of this testimony after the initial, general objection to Sutherland’s testimony. The jury convicted Bynum as charged. Newly appointed appellate counsel moved for a new trial in the circuit court, citing the ineffective assistance of trial counsel for failing to object to Sutherland’s testimony as improper propensity evidence.* The court rejected the ineffective-assistance claim because it was satisfied that trial counsel’s objections had preserved the claimed error in Sutherland’s testimony. The court also held that the expert witness testimony was appropriate. The Court of Appeals reversed Bynum’s convictions in a split, unpublished opinion per curiam. Contrary to the circuit court’s judgment, the majority explained, in relevant part, that trial counsel had not objected to much of Sutherland’s testimony. Nevertheless, even under the plain-error standard for unpreserved claims of error, Bynum was entitled to relief on the basis of the prejudicial admission of improper testimony. In particular, Sutherland “presented extensive testimony that can only be characterized as improper propensity evidence,” such as describing Bynum as a “hardcore” member of the Boardman Boys and opining that Bynum shot Carter with premeditation. Moreover, this evidence was prejudicial because “[t]he evidence of premeditation was threadbare, at best,” even though “there was overwhelming evidence that Bynum participated in the shooting that led to Carter’s death and that his self-defense theory was not particularly persuasive.” The dissenting judge determined that the evidence about gang culture and the Boardman Boys “does not. . . become objectionable ‘propensity’ evidence simply because the expert opined further that defendant was not only a ‘member’ of the Boardman Boys, but a ‘hardcore member.’ ” Moreover, the dissenting judge concluded that evidence of gang membership is relevant if it relates to motive and that Sutherland “did not opine on defendant’s claim of self-defense, indicate whether defendant’s self-defense claim was believable, or state that defendant actually shot the victim with premeditation. ” We granted the prosecution’s application for leave to appeal, limited to the following issues: (1) whether the police officer’s expert testimony regarding gangs and gang membership — especially the testimony as to the defendant’s gang, the defendant’s role in his gang, and premeditation — was more prejudicial than probative under MEE 403; (2) the extent to which the profiling factors listed in People v Murray, 234 Mich App 46, 56-58 [593 NW2d 690] (1999), apply to the admissibility of this expert testimony; (3) whether any error by the trial court with respect to this testimony was preserved; and (4) whether, if there was any such error by the trial court, the Court of Appeals correctly held that the defendant was entitled to a new trial or whether any error was harmless.[ ] II. STANDARD OF REVIEW The decision to admit evidence is within a trial court’s discretion, wrhich is reviewed for an abuse of that discretion. Preliminary questions of law, such as whether a rule of evidence or statute precludes the admission of particular evidence, are reviewed de novo, and it is an abuse of discretion to admit evidence that is inadmissible as a matter of law. If a defendant has failed to preserve a claim of evidentiary error, relief may be granted only upon a showing that a plain error affected the defendant’s substantial rights and that the defendant is actually innocent or the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” III. ANALYSIS The Michigan Rules of Evidence provide the appropriate framework for reviewing the Court of Appeals’ conclusion that Bynum is entitled to a new trial on the basis of evidentiary error. When considering whether to admit expert testimony, MRE 702 requires the trial court to determine that the expert testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue . . . .” If the average juror does not need the aid of expert testimony to understand the evidence or determine a fact in issue, then the proffered testimony is inadmissible because “ ‘it merely deals with a proposition that is not beyond the ken of common knowledge.’ ” Similarly, MRE 402 provides that “[e]vidence which is not relevant is not admissible.” As a result, an expert witness may not testify about matters that are irrelevant. The trial court thus acts as a gatekeeper for expert testimony and has a fundamental duty to ensure that the proffered expert testimony is both relevant and reliable. MRE 404(a) prohibits the admission of character evidence except under limited circumstances: Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same; or if evidence of a trait of character of the alleged victim of the crime is offered by the accused and admitted[,]... evidence of a trait of character for aggression of the accused offered by the prosecution[.] Application of these and other rules of evidence to expert testimony about gangs, gang membership, and gang culture has not been developed in our caselaw, although gang activity and gang culture have increasingly been the focus of federal, state, and local law enforcement agencies. Indeed, the sharing of information about gang activity and gang culture across jurisdictions has created new expertise and new understanding to combat gang-related violence. Prosecutors are using that new expertise to help juries understand the context of the crimes that they are prosecuting and, as a result, it is increasingly important for us to explain how this newly developed expertise fits within our existing rules of evidence. As a threshold matter, applying MRE 402 and MRE 702 requires a trial court to act as a gatekeeper of gang-related expert testimony and determine whether that testimony is relevant and will assist the trier of fact to understand the evidence. The introduction of evidence regarding a defendant’s gang membership is relevant and can “assist the trier of fact to understand the evidence” when there is fact evidence that the crime at issue is gang-related. Ordinarily, expert testimony about gang membership is of little value to a fact-finder unless there is a connection between gang membership and the crime at issue. Sometimes, however, identifying whether a crime is gang-related requires an expert to establish the significance of seemingly innocuous matters — such as clothing, symbolism, and tattoos — as features of gang membership and gang involvement. At other times, “an expert’s testimony that the crime was committed in rival gang territory may be necessary to show why the defendant’s presence in that area, a fact established by other evidence, was motivated by his gang affiliation.” In other words, understanding the connection between the crime and gang activity is sometimes beyond the ken of common knowledge. Accordingly, the relevance of gang-related expert testimony “may be satisfied by fact evidence that, at first glance, may not indicate gang motivations, but when coupled with expert testimony, provides the gang-crime connection.” In the context of gang-related violence, we conclude that expert testimony may be admitted regarding general characteristics of gang culture for an appropriate purpose, such as helping to elucidate a gang member’s motive for committing a gang-related crime. For example, the Kansas Supreme Court upheld testimony “that if someone got a member of the gang in trouble, the gang would retaliate” as part of “the State’s attempt to establish a motive” for such retaliation. The testimony, of course, must otherwise meet the rules of evidence before it can be admitted, and we particularly caution that MRE 404(a) limits the extent to which a witness may opine about a defendant’s gang membership. As stated, MRE 404(a) provides that “[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion . . . .” As a result, an expert may not testify that, on a particular occasion, a gang member acted in conformity with character traits commonly associated with gang members. Such testimony would attempt to prove a defendant’s conduct simply because he or she is a gang member. IV APPLICATION A. PRESERVATION Before examining the merits of the claimed evidentiary errors at issue in this appeal, one threshold question we must answer is whether Bynum preserved these claims of evidentiary error. As previously noted, when the court revisited the prosecutor’s motion to introduce Sutherland’s PowerPoint presentation during trial, defense counsel stated that he was “still objecting to the use of essentially most of this testimony on the basis that it is more prejudicial than probative” and that “ [i]t’s not particularly relevant as it relates to this particular Defendant, whether he is in a gang or not.” Nevertheless, defense counsel admitted that Sutherland “can offer his . . . testimony as to associations and behavior and conduct of these groups and what not.” Counsel was particularly worried that “the use of photographs of gangs . . . and references to gangs on a national stage that this particular Defendant is not a member of is more prejudicial than probative.” Additionally, counsel objected to proposed photographs of Bynum and other alleged gang members that he characterized as “nothing less than ‘mug shots’ taken when [Bynum] was in custody.” The court allowed the presentation to proceed but restricted it “to a question and response format so that [defense counsel] can object to particular issues if he finds the basis to do so .. . .” While the scope of Bynum’s objection to Sutherland’s testimony seemed to change from one statement to the next, it is clear that counsel focused on the prejudicial effect of the PowerPoint presentation’s being shown to the jury. At most, counsel’s statement that he was objecting “to the use of essentially most of this testimony” because “[fit’s not particularly relevant” is akin to a general objection to the admissibility of any mention of gangs or gang-related violence. As a result, we conclude, as did the Court of Appeals, that a general objection to the relevance of Sutherland’s expert testimony is preserved. However, because the court envisioned that the question-and-answer format of Sutherland’s testimony would provide defense counsel with an opportunity to tender objections to specific questions or responses, we also conclude that because defense counsel failed to object to specific portions of Sutherland’s testimony, any specific claims of error arising out of the content of Sutherland’s testimony must be examined under the standard for unpreserved error. To summarize: We will apply our standard of review for preserved error to the threshold inquiry regarding whether any expert testimony about gangs is admissible in the first instance under MRE 402, and if it is admissible in the first instance, we will apply our standard of review for unpreserved error to the claims that the extent of the testimony admitted at trial violated MRE 404(a) and other pertinent rules of evidence. We now proceed to these inquiries. B. FACT EVIDENCE REGARDING GANG-RELATED VIOLENCE As stated, in applying MRE 402 and 702 to the facts of this case, fact evidence to show that the crime at issue is gang-related provides a sufficient basis for a trial court to conclude that expert testimony regarding gangs is relevant and will be helpful to the jury, although the significance of fact evidence and its relationship to gang violence can be gleaned from expert testimony. Sutherland testified that the shootings occurred on disputed gang territory, and “an expert’s testimony that the crime was committed in rival gang territory may be necessary to show why the defendant’s presence in that area, a fact established by other evidence, was motivated by his gang affiliation.” Moreover, fact evidence connected Bynum and the other shooters to the Board-man Boys: Sutherland testified that Bynum has a tattoo of his street nickname (Cannon), which was an identifier of his gang membership, and Bailey testified that Bynum was a known member of the gang, as were the other shooters. As a result, the location of the crimes, when combined with evidence that multiple gang members were involved in the crimes, provided sufficient fact evidence to conclude that expert testimony regarding gangs, gang membership, and gang culture would be relevant and helpful to the jury in this case. C. INADMISSIBLE EXPERT TESTIMONY UNDER MRE 404(a) The prosecution argues that Sutherland’s testimony was proper evidence of motive because “[i]n a prosecution for murder proof of motive, while not essential, is always relevant.” Even if expert testimony about gang culture may be introduced, however, MRE 404(a) precludes the expert from providing evidence of a gang member’s character to prove action in conformity with gang membership. Of course, a gang expert may testify that a gang, in general, protects its turf through violence as an explanation for why a gang member might be willing to commit apparent random acts of violence against people the gang member believes pose a threat to that turf. Sutherland did so in discussing aspects of gang culture generally, and this testimony was proper under MRE 404(a). Nevertheless, Sutherland veered into objectionable territory when he opined that Bynum had acted in conformity with his gang membership with regard to the specific crimes in question. In particular, Sutherland used Bynum’s gang membership and the character traits associated therewith to describe what he saw on the surveillance video. In so doing, his testimony suggested Bynum’s guilt in the underlying crime: [W]hen I see that incident, when I watch the video, they [the gang members, including Bynum] are all posted up at the store with a purpose. When they went to that store that day, they didn’t know who they were going to beat up or shoot, but they went up there waiting for someone to give them the chance. “Make us — give me [i.e., Bynum] a reason to-to shoot [you], to fight you, to show how tough we are, the Boardman Boys, on our turf.” In contrast to his otherwise admissible general testimony about aspects of gang culture, Sutherland’s testimony interpreting the video evidence specifically connected those character traits to Bynum’s conduct in a particular circumstance. Such testimony impermissibly attempted to “prov[e] action in conformity” with character traits common to all gang members on a particular occasion. As a result, this testimony violated MRE 404(a). Therefore, we agree with the Court of Appeals that Sutherland exceeded the limitations of expert testimony when he opined that he believed that Bynum and others went to the party store “waiting for someone to give [the Boardman Boys] the chance” to protect their turf. That testimony was an opinion that Bynum acted in conformity with the character traits commonly associated with gang members on a particular occasion, in violation of MRE 404(a). D. PREJUDICE As stated, defense counsel did not specifically object to Sutherland’s testimony that Bynum acted in conformity with his gang membership in committing the charged crimes. As a result, Bynum must show that a plain error affected his substantial rights and that he is actually innocent or that the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Sutherland actually and clearly opined on Bynum’s character traits as a gang member to link him to the particular conduct at issue when he explained what he saw on the surveillance video: Bynum’s conformity with traits commonly associated with gang members on a particular occasion to show “ ‘how violent we [i.e., Bynum and the other Boardman Boys] can be . .. .’ ” Under the standard articulated above, Sutherland exceeded the limitations of MRE 404(a) when he went beyond discussing the general characteristics of gang membership and gang culture and instead testified that he believed that Bynum exemplified, on a particular occasion, the character trait of a gang member who needed to protect territory through violence. The error in allowing this testimony to be admitted was plain. Furthermore, we agree with the Court of Appeals that, although “there was overwhelming evidence that Bynum participated in the shooting that led to Carter’s death and that his self-defense theory was not particularly persuasive,” the evidence of Bynum’s premeditation “was threadbare, at best.” As a result, “it is likely that, had the jury not heard the propensity evidence or been told by an expert that Bynum and his friends went to the store with the intent to shoot someone, ... it would have found that the prosecutor did not prove that Bynum premeditated beyond a reasonable doubt.” Moreover, Sutherland’s testimony further weakened Bynum’s self-defense claim by suggesting that Bynum’s propensity for violence meant that he intended to shoot someone at the party store on the night of the shooting. Carines also requires that the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” An error of this magnitude satisfies this requirement because it inevitably led the jury to find that Bynum premeditated in the murder on the basis of his membership in a gang and the asserted character trait that he was thus prone to violence. Particularly when the opinion is proffered by an officer of the law, the error seriously affects the fairness, integrity, or public reputation of the proceedings. As a result, Bynum is entitled to relief. As for the nature of Bynum’s relief, the prosecution argues that a new trial is not warranted because any evidentiary error would not have affected the jury’s rejection of Bynum’s self-defense claim, only its finding of premeditation — an element of first-degree murder, but not the lesser included offense of second-degree murder. As a result, the prosecution requests that, if we conclude that Bynum is entitled to relief, we enter a guilty verdict on the lesser included offense of second-degree murder, which does not require a finding of premeditation. We decline to do so because we cannot so easily separate the prejudice regarding premeditation from the prejudice regarding self-defense. While the evidence against Bynum’s self-defense claim was stronger than the evidence supporting premeditation, a conclusion that Bynum premeditated necessarily entails a rejection of his self-defense claim. Moreover, Sutherland’s testimony implicated Bynum’s propensity for violence relating to both the murder charge and his self-defense claim, and Sutherland’s opinion rejecting Bynum’s self-defense claim cannot be considered merely cumulative to the prosecution’s other evidence of Bynum’s guilt. By proffering an opinion that Bynum exhibited the character trait of violence commonly associated with gang members to explain how Bynum allegedly premeditated in the murder, Sutherland gave the jury a separate reason for rejecting Bynum’s self-defense claim. In particular, Sutherland’s testimony provided jurors with a specific basis to reject Bynum’s statement to police that he was on his guard because “it’s not safe to walk nowhere” and was “scared for [his] life.” Unlike the partial dissent, we cannot look behind the jury’s decision to reject Bynum’s self-defense claim and determine, as a matter of law, that this claim was objectively unreasonable. When considering the other evidence adduced at trial without Sutherland’s testimony, a reasonable jury could have concluded that Bynum’s purported subjective belief of his danger was objectively reasonable, given that the victims drove up and, within a matter of seconds, Carter began assaulting Bynum. That the victims were unarmed does not weaken the objective threat when there was no outward indication, one way or the other, of that fact. Moreover, the speed with which the verbal altercation escalated into a physical altercation belies the partial dissent’s claim that Bynum could have retreated easily. Accordingly, we agree with the Court of Appeals that Bynum is entitled to a new trial. V CONCLUSION As stated, we hold that MRE 402 and MRE 702 require a trial court to act as a gatekeeper for the admission of relevant expert testimony that will help the fact-finder “to understand the evidence or to determine a fact in issue . . . .” Such expert testimony may meet these requirements when there is fact evidence that the crime at issue is gang-related. However, when the connection between the crime and gang activity is beyond the ken of common knowledge, the requirements of MRE 402 and MRE 702 “may be satisfied by fact evidence that, at first glance, may not indicate gang motivations, but when coupled with expert testimony, provides the gang-crime connection.” In applying MRE 402 and MRE 702 to the facts of this case, we conclude that the tried court appropriately exercised its role as gatekeeper in determining that expert testimony about gangs and gang culture would assist the jury in understanding the evidence. Additionally, an expert witness may not use a defendant’s gang membership to prove specific instances of conduct in conformity with that gang membership, such as opining that a defendant committed a specific crime because it conformed with his or her membership in a gang. Such testimony violates MRE 404(a). Because Bynum was prejudiced by the expert opinion that, on a particular occasion, he acted in conformity with character traits commonly associated with gang members, we conclude that he is entitled to a new trial. We therefore affirm the result of the Court of Appeals’ judgment and remand this case to the Calhoun Circuit Court for further proceedings consistent with this opinion. Cavanagh, Markman, Zahra, McCormack, and Vmano, JJ., concurred with KELLY, J. See National Gang Intelligence Center, 2011 National Gang Threat Assessment: Emerging Trends, p 15 (observing that “gang members are responsible for an average of 48 percent of violent crime in most jurisdictions”), available at <http://www.fbi.gov/stats-services/ publications/2011-national-gang-threat-assessment/2011-national-gang-threat-assessment-emerging-trends> (accessed July 3, 2014) [http://perma.cc/P8WZ-Y88E]; National Gang Intelligence Center, 2013 National Gang Report, p 52 (observing that gangs will “continue to vie for control of the territories they inhabit and will thereby continue to perpetrate violence and criminal activities in prisons and communities throughout the nation”), available at <http://www.fbi.gov/statsservices/publications/national-gang-report-2013/view> (accessed July 7, 2014) [http://perma.cc/XC2R-2M36]. Similarly, Mitchell and Davis denied knowing Bynum, the other shooters, and the other members of the crowd. Because the police did not recover Bynum’s firearm, forensic evidence could not conclusively connect Bynum’s firearm to Carter’s death. However, a forensics expert testified that the bullets retrieved from Carter’s body came from the same firearm and were consistent with the type of firearm that Bynum carried. MCL 750.316. MCL 750.83. MCL 750.227. MCL 750.227b. The motion in limine did not propose to introduce the presentation as substantive evidence in the case, only as a guide or roadmap to Sutherland’s testimony. There is a factual dispute regarding which slides were shown to the jury as part of Sutherland’s expert testimony. For the reasons explained later, our ruling relies only on the matters on which Sutherland verbally opined during his testimony, not on what slides he showed the jury. As a result, we need not resolve this factual dispute between the parties. Instead, we caution the prosecution that the court unsuccessfully sought to insulate this appeal from this very factual dispute when it directed that the “images on the power point presentation be separately preserved as a special record for subsequent appellate review” and assigned that task to the assistant prosecutor. Counsel also objected to Sutherland’s qualification as an expert witness, but that objection is not at issue in this appeal. Indeed, appellate counsel called trial counsel’s failure to object “kind of shocking.” People v Bynum, unpublished opinion per curiam of the Court of Appeals, issued April 18, 2013 (Docket No. 307028). Id. at 7. Id. at 9. Id. at 3 (Boonstra, J., dissenting). Id. at 5. Bynum also filed an application for leave to cross-appeal, claiming violations of the right to the effective assistance of counsel and the Confrontation Clause, evidentiary error, prosecutorial misconduct, and instructional error. Because we affirm the result of the Court of Appeals’ judgment, we need not reach the merits of Bynum’s cross-appeal and deny leave to cross-appeal, although many of the issues presented on cross-appeal are related to Sutherland’s testimony. People v Bynum, 495 Mich 891, 891-892 (2013). People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). Id. People v Cannes, 460 Mich 750, 774; 597 NW2d 130 (1999). Additionally, MRE 703 requires that “[t]he facts or data in the particular case upon which an expert bases an opinion or inference ... be in evidence.” Gilbert v DaimlerChrysler Corp, 470 Mich 749, 790; 685 NW2d 391 (2004), quoting Zuzula v ABB Power T & D Co, Inc, 267 F Supp 2d 703, 711 (ED Mich, 2003) (emphasis omitted). MRE 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Daubert v Merrell Dow Pharm, Inc, 509 US 579, 589; 113 S Ct 2786; 125 L Ed 2d 469 (1993); Gilbert, 470 Mich at 780 n 46. In 1992, the FBI began the Safe Streets Violent Crime Initiative, which joins federal, state, and local law enforcement agencies to address gang-related crime. Federal Bureau of Investigation, Gangs, Violent Gang Task Forces <http://www.fbi.gov/about-us/investigate/vc_majorthefts/ gangs/violent-gangs-task-forces> (accessed July 7, 2014) [http:// perma.cc/M25P-MTBG]. The National Gang Intelligence Center provides centralized access to information about gangs and their growth, migration, and evolution. Federal Bureau of Investigation, Gangs, National Gang Intelligence Center <http://www.fbi.gov/about-us/investigate/ vc_majorthefts/gangs/ngic> (accessed July 7, 2014) [http:// perma.cc/S4A9-T2Q2]. MRE 702. It is foreseeable that certain criminal activity is unrelated to membership in a gang. If, for instance, a member of a gang is charged with domestic violence, the crime might not be gang-related and, as a result, evidence of gang membership might not be relevant to the defendant’s guilt or innocence of the crime. Otherwise, “a juror might associate a defendant with such an affiliation as a person of bad character or someone prone to aggressive or violent behavior.” Utz v Commonwealth, 28 Va App 411, 420; 505 SE2d 380 (1998). Of course, this example is not to say that an individual gang member cannot commit a gang-related crime as part of the gang’s collective criminal activity without other gang members being present. Gutierrez v State, 423 Md 476, 496; 32 A3d 2 (2011). Id. State v Tran, 252 Kan 494, 505; 847 P2d 680 (1993). Counsel’s only objection during Sutherland’s question-and-answer testimony was to a question about whether the victims were armed, which the court overruled after a foundation for Sutherland’s knowledge of the question had been established. Counsel also objected to whether Sutherland qualified as an expert witness, although the court overruled counsel’s objection. Neither of these objections is at issue in this appeal. Gutierrez, 423 Md at 496. People v Mihalko, 306 Mich 356, 361; 10 NW2d 914 (1943). See, e.g., People v Bryant, 241 Ill App 3d 1007, 1022-1023; 182 Ill Dec 376; 609 NE2d 910 (1993) (explaining that gang-related evidence is proper “to offer a motive for an otherwise inexplicable act” when “the trial court allowed in only as much gang testimony as was necessary to establish this motive”). Cf. United States v Mejia, 545 F3d 179, 190-191 (CA 2, 2008) (explaining that when an expert officer’s testimony narrows from general characteristics of gangs, to a particular gang, to a particular defendant, the expert “displaces] the jury by connecting and combining all other testimony and physical evidence into a coherent, discernable, internally consistent picture of the defendant’s guilt”). Cannes, 460 Mich at 774. Bynum, unpub op at 9. Id. at 10. Carines, 460 Mich at 774. Cf. People v Murray, 234 Mich App 46, 55; 593 NW2d 690 (1999) (noting “the danger that [police officer expert] testimony may have an aura of special reliability and trustworthiness”) (citations and quotation marks omitted). The partial dissent claims to profess that “this very issue is one submitted to the jury,” post at 640 (emphasis omitted), yet we, not the partial dissent, would again submit the self-defense issue to a jury to accept or reject. Because it is not necessary to this award of relief, we do not reach the issue of whether it was also reversible error for the trial court to admit Sutherland’s testimony regarding Bynum’s status as a “hardcore member” of the Boardman Boys. We leave it to the trial court to assess the admissibility of such testimony if and when it is offered at retrial, as well as to resolve any other challenges regarding gang-related testimony not otherwise addressed in this opinion. In that regard, we also note that, of course, gang-related testimony remains subject to MRE 403. See, e.g., People v Musser, 494 Mich 337, 356-357; 835 NW2d 319 (2013) (stating that “a trial court has a historic responsibility to always determine whether the danger of unfair prejudice to the defendant substantially outweighs the probative value of the evidence sought to he introduced before admitting such evidence”) (citation and quotation marks omitted). We further note, in light of Bynum’s argument that there was never a line drawn between fact evidence and expert testimony at his first trial, that [t]he potential for prejudice [when a police officer testifies as both an expert and a fact witness] can he addressed by means of appropriate cautionary instructions and by examination of the witness that is structured in such a way as to make clear when the witness is testifying to the facts and when he is offering his opinion as an expert. [United States v Mansoori, 304 F3d 635, 654 (CA 7, 2002).] Gutierrez, 423 Md at 496.
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KELLY, J. This case concerns whether the 2010 amendment of the Motor Vehicle Dealer Act (MVDA), expanding the relevant market area — the area within which automobile manufacturers are required to notify an existing dealership of the manufacturer’s intent to establish a dealership selling the same line of vehicles as that existing dealership — from a six-mile radius to a nine-mile radius, applies retroactively. We conclude that it does not. The 2010 amendment of the MVDA contains no language suggesting retroactivity, and applying the amendment retroactively would alter the parties’ existing contract rights. A manufacturer-dealer relationship, absent contrary language in the contract, incorporates the relevant market area in effect at the time when the dealer agreement was entered. The six-mile relevant market area in effect in 2007, then, governs the 2007 manufacturer-dealer agreement at issue in this case. We therefore vacate the judgment of the Court of Appeals and remand this case to the Washtenaw Circuit Court for reinstatement of summary disposition in favor of defendants Chrysler Group (Chrysler) and IHS Automotive Group (IHS). I. FACTS AND PROCEDURAL HISTORY Chrysler and plaintiff LaFontaine Saline Inc. (LaFontaine), an authorized Chrysler automobile dealer, entered into a Dealer Agreement on September 24, 2007. The agreement granted LaFontaine the non-exclusive right to sell Dodge vehicles from its location in Saline, Michigan, and defined LaFontaine’s Sales Locality as “the area designated in writing to [LaFontaine] by [Chrysler] from time to time as the territory of [LaFontaine’s] responsibility for the sale of [Chrysler, Jeep, and Dodge] vehicles, vehicle parts and accessories . . ..” The agreement further provided that LaFontaine’s “Sales Locality may be shared with other [Chrysler] dealers of the same line-make as [Chrysler] determines to be appropriate.” The parties agree that the 2007 Dealer Agreement is subject to the MVDA, which regulates relationships among automobile manufacturers, distributors, and dealers. In particular, the MVDA’s relevant market area provision limits Chrysler’s right to establish dealerships of the same line of vehicles in the vicinity of LaFontaine’s existing dealership. This section, MCL 445.1576(2), provides: Before a manufacturer or distributor enters into a dealer agreement establishing or relocating a new motor vehicle dealer within a relevant market area where the same line make is represented, the manufacturer or distributor shall give written notice to each new motor vehicle dealer of the same line make in the relevant market area of its intention to establish an additional dealer or to relocate an existing dealer within the relevant market area.[ ] This notice requirement further entitles a recipient dealer to file a declaratory judgment action requiring the manufacturer to show good cause for establishing a new dealership within the relevant market area.2 At the time Chrysler and LaFontaine entered into their 2007 Dealer Agreement, MCL 445.1566(a) defined “relevant market area” as “the area within a radius of 6 miles of the intended site of the proposed or relocated dealer.” Significantly, this same six-mile radius was in effect when, on February 2, 2010, Chrysler and IHS, another Dodge automobile dealer, entered into a “Letter of Intent to Add Vehicle Line” (LOI). The LOI provided that Chrysler “will accept [IHS’s] offer to enter into an Agreement” to sell Dodge vehicles upon IHS’s satisfaction of certain conditions enumerated in the LOI.* *** The LOI further provided Chrysler the discretionary right to terminate the LOI should “anyone file a protest or lawsuit, demand arbitration or otherwise challenge . . . the proposed establishment” if the challenge is not withdrawn or dismissed within 90 days of filing. After execution of the LOI, the Legislature expanded the statutory definition of relevant market area from the six-mile radius to “the area within a radius of 9 miles” of the intended site of the proposed or relocated dealership. Although the proposed location for IHS’s Dodge facility is outside the pre-amendment six-mile radius of LaFontaine’s existing dealership, it is within the post-amendment nine-mile radius of that location. On September 3, 2010, LaFontaine contacted Chrysler, indicating its protest of the proposed IHS Dodge dealership location in light of the nine-mile radius established by the 2010 Amendment. Chrysler responded on October 8, 2010, communicating its continuing intent to establish a Dodge dealership at IHS’s Ann Arbor location. LaFontaine then filed a complaint for declaratory relief, challenging the proposed dealership under the MVDA. Chrysler and IHS responded with a motion for summary disposition, alleging that the 2010 Amendment did not apply to the proposed dealership because their LOI predated the Amendment, and LaFontaine therefore had no statutory right to challenge it. They further argued that applying the 2010 Amendment to the LOI and to the 2007 Chrysler-LaFontaine Dealer Agreement would be an impermissible retroactive application of the law. LaFontaine argued that its 2007 Dealer Agreement with Chrysler did not address or refer to LaFontaine’s relevant market area, and therefore application of the 2010 Amendment could not interfere with that agreement. Even if the 2010 Amendment applied only prospectively, LaFontaine asserted that the LOI did not constitute a dealer agreement, but merely an agreement for certain improvements to IHS’s facilities in anticipation of a dealer agreement. Any formal dealer agreement, LaFontaine argued, must follow the August 4, 2010 effective date of the amendment and be subject to the nine-mile relevant market area. The Washtenaw Circuit Court granted Chrysler’s and IHS’s motions for summary disposition, concluding that the 2010 Amendment did not overcome the presumption that statutory amendments generally operate prospectively only. The Legislature provided a specific effective date of August 4, 2010, and omitted any reference to retroactivity. The circuit court further found that the LOI between Chrysler and IHS constituted a dealer agreement under the MVDA, and thereby established the parties’ rights upon execution. The court denied LaFontaine’s motion for reconsideration, adding that LaFontaine’s claim was not ripe because it “rests on contingent future events that may not occur,” i.e., a formal Dealer Agreement. The Court of Appeals reversed the circuit court in a published opinion, concluding that the issue of retroactivity was immaterial because the LOI was not a dealer agreement because it did not establish the “legal rights [or] obligations of [Chrysler or IHS] with regard to the purchase and sale or resale of new motor vehicles and accessories for motor vehicles.” The Court of Appeals held that any dealer agreement could necessarily occur only after the effective date of the 2010 Amendment, and application of that amendment could not have retroactive effect on any dealer agreement between Chrysler and IHS. Moreover, because the 2010 Amendment applied and the MVDA allows a dealer to bring a declaratory judgment action upon notice of a manufacturer’s intent to establish a like-line dealership, the Court of Appeals held that LaFontaine had standing to sue to determine whether good cause existed for IHS’s proposed dealership. 10The Court of Appeals denied Chrysler’s and IHS’s motions for reconsideration. We granted Chrysler’s and IHS’s applications for leave to appeal, requesting that the parties address whether the Court of Appeals erred in holding that the 2010 PA 139 definition of “relevant market area,” MCL 445.1566(l)(a), applied to enable the plaintiff to challenge the future dealer agreement between the defendants under MCL 445.1576(3). Compare Kia Motors America, Inc v Glassman Oldsmobile Saab Hyundai, Inc, 706 F3d 733, 735 (CA 6, 2013).[ ] II. STANDARD OF REVIEW Chrysler and IHS moved for summary disposition under MCR 2.116(C)(8) and (10). Summary disposition under MCR 2.116(C)(8) is appropriate where the complaint fails to state a claim on which relief may be granted. A motion for summary disposition under MCR 2.116(0(10) challenges the factual sufficiency of the complaint, with the trial court considering the entire record in a light most favorable to the nonmoving party. We review de novo a trial court’s ruling on a motion for summary disposition. We also review questions of statutory interpretation de novo, including questions regarding retroactivity of amendments. III. ANALYSIS AND APPLICATION In establishing whether the 2010 Amendment applies on the facts of this case, we first examine the source, if any, of the parties’ contractual rights that predates the 2010 Amendment. Only then can we determine whether retroactive application of the 2010 Amendment’s expanded relevant market area would interfere with any such rights. A. THE SOURCE OF CONTRACTUAL RIGHTS The MVDA in effect at the time of both the 2007 Chrysler-LaFontaine Dealer Agreement and 2010 Chrysler-IHS LOI defined “Dealer agreement” as an agreement or contract in writing between ... a manufacturer and a .. . new motor vehicle dealer ... which purports to establish the legal rights and obligations of the parties to the agreement or contract with regard to the purchase and sale or resale of new and unaltered motor vehicles and accessories for motor vehicles.[ ] This provision of the MVDA specifies three key elements to a Dealer Agreement: (1) a writing (2) establishing the legal rights and obligations of the parties (3) with regard to the purchase and sale or resale of new motor vehicles and accessories for motor vehicles. Applying these elements to the 2007 ChryslerLaFontaine Dealer Agreement compels the undisputed conclusion that that agreement constitutes a “dealer agreement” within the meaning of the MVDA. The agreement is in writing, purports to establish the parties’ legal rights and obligations, and sets out specific “Products Covered” in a “Motor Vehicle Addendum.” The agreement therefore complies with the requirements of then-effective MCL 445.1562(2), and establishes the parties’ contractual rights. And because MCL 445.1566(1) provided for a six-mile relevant market area at the time Chrysler and LaFontaine entered into their Dealer Agreement, the six-mile radius will govern that agreement unless the 2010 Amendment expanding the relevant market area is retroactively applicable to existing dealer agreements. Indeed, it is well settled that “the obligation of a contract consisted in its binding force on the party who makes it. This depends upon the laws in existence when it is made. They are necessarily referred to in all contracts, and form a part of them, as the measure of obligation to perform them by the one party and right acquired by the other.” The doctrine asserted in that case . .. applies to laws in reference to which the contract is made, and forming a part of the contract.[ ] Before reaching the issue of retroactivity, however, we must also consider the 2010 LOI between Chrysler and IHS and whether that agreement similarly meets the MVDA’s definition of “dealer agreement.” Like the 2007 Chrysler-LaFontaine Dealer Agreement, the LOI between Chrysler and IHS is a writing executed by both parties. However, while the language of this latter agreement speaks in terms of “requirements” and “breaches,” and purports to constitute Chrysler and IHS’s “entire agreement concerning the establishment of the Facility,” the LOI is not a “dealer agreement” within the meaning of the MVDA because it does not establish their rights and obligations with regard to the purchase and sale or resale of new motor vehicles and accessories for motor vehicles, as the MVDA requires. Rather, the LOI speaks almost entirely to requirements IHS must meet before Chrysler will “accept [IHS’s] offer to enter into an Agreement in its then-customary form” and likewise contemplates conditions IHS must satisfy “[b]efore [Chrysler] enters into an Agreement with [IHS] . . . .” At most, then, the LOI is akin to an agreement to agree to a Dealer Agreement. While it is “ ‘well recognized that it is possible for parties to make an enforceable contract binding them to prepare and execute a subsequent agreement,’ ” an agreement to agree is not enforceable where “ ‘the document or contract that the parties agree to make is to contain any material term that is not already agreed on. .. .’ ” Accordingly, the LOI was not a Dealer Agreement pursuant to MCL 445.1562(2) as was in effect at the time Chrysler and IHS executed their LOI. Chrysler and IHS therefore had no contractual rights by way of the 2010 LOI with which retroactive application of the nine-mile relevant market area could interfere. B. RETROACTIVITY Because the 2007 Dealer Agreement between Chrysler and LaFontaine established rights between the parties, we consider whether retroactive application of the 2010 Amendment’s nine-mile relevant market area would impermissibly deprive Chrysler of any such rights. To begin, we note that the 2007 Dealer Agreement between Chrysler and LaFontaine contains no language purporting to grant LaFontaine rights against encroachment by like-line dealers. Rather, the agreement explicitly contemplates that LaFontaine’s “Sales Locality may be shared with other [Chrysler] dealers of the same line-make as [Chrysler] determines to be appropriate.” This language makes clear that, aside from any limits set out in the MVDA (i.e., the relevant market area provision), nothing in the 2007 Dealer Agreement prevents Chrysler from reaching like-line dealer agreements with other dealerships within LaFontaine’s “Sales Locality.” Accordingly, any right LaFontaine has against encroachment by like-line dealers is a creature of statute. We consequently must determine whether the creation of a statutory right against encroachment by the 2010 MVDA amendment, applied against Chrysler’s preexisting 2007 Dealer Agreement with LaFontaine, would result in impermissible retroactive application. Retroactive application of legislation “ ‘presents problems of unfairness ... because it can deprive citizens of legitimate expectations and upset settled transactions.’ ” We have therefore required that the Legislature make its intentions clear when it seeks to pass a law with retroactive effect. In determining whether a law has retroactive effect, we keep four principles in mind. First, we consider whether there is specific language providing for retroactive application. Second, in some situations, a statute is not regarded as operating retroactively merely because it relates to an antecedent event. Third, in determining retroactivity, we must keep in mind that retroactive laws impair vested rights acquired under existing laws or create new obligations or duties with respect to transactions or considerations already past. Finally, a remedial or procedural act not affecting vested rights may be given retroactive effect where the injury or claim is antecedent to the enactment of the statute. MCL 445.1566(l)(a), as amended by 2010 PA 139, provides: (1) “Relevant market area” means ... : (a) In a county that has a population of more than 150,000, the area within a radius of 9 miles of the site of the intended place of business of a proposed new vehicle dealer or the intended place of business of a new vehicle dealer that plans to relocate its place of business. For purposes of this section, the 9-mile distance is determined by measuring the distance between the nearest surveyed boundary of an existing new motor vehicle dealer’s principal place of business and the nearest surveyed boundary line of the proposed or relocated new motor vehicle dealer’s principal place of business. Nothing in the language of MCL 445.1566(l)(a) suggests the Legislature’s intent that the law apply retroactively. The Legislature “ ‘knows how to make clear its intention that a statute apply retroactively.’ ” In fact, it has done so with other provisions of the MVDA, which explicitly provide that they apply to pre-existing con tracts. The Legislature has even used specific retroactivity language when amending the MVDA. The Legislature’s silence regarding retroactivity in its amendment of the definition of “relevant market area” undermines any argument that MCL 445.1566 was intended to apply retroactively. That the Legislature provided for the law to take immediate effect upon its filing date — August 4, 2010 — only confirms its textual prospectivity. The remaining factors in our retroactivity analysis require that we examine the amendment’s effect on existing contract rights. A statute’s relation to a prior event alone will not render the statute retroactive. Rather, we consider whether the statute “takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability with respect to transactions or considerations already past.” LaFontaine asserts that retroactivity is not at issue in this case merely because it invoked the anti-encroachment protection of the 2010 amendment after that amendment went into effect. However, this argument begs the retroactivity question, failing to recognize that retroactive application of the 2010 Amendment would “create a new liability in connection with a past transaction” — namely, Chrysler’s 2007 Dealer Agreement with LaFontaine. Applying the 2010 Amendment’s nine-mile relevant market area to the parties’ 2007 agreement would impose on Chrysler the new obligation of meeting the rigorous “good cause” standard in an action for declaratory relief under MCL 445.1576(3). Chrysler did not bargain for or contemplate this obligation at the time of its 2007 Dealer Agreement with LaFontaine, when the MVDA imposed only a relevant market area of six miles. Rather, Chrysler had the settled expectation at the time of its 2007 agreement that it could establish a like-line dealership anywhere outside a six-mile radius of LaFontaine’s place of business. Because Chrysler explicitly reserved its right to establish such dealerships within LaFontaine’s “Sales Locality” as refered to in the 2007 Dealer Agreement, Chrysler’s right is contractual in nature, limited only by LaFontaine’s statutory anti-encroachment rights in the MVDA’s relevant market area provision. Accordingly, retroactive application of the 2010 Amendment would not merely “operate in furtherance of a remedy or mode of procedure,” and therefore cannot be characterized as remedial or procedural. Rather, the expansion of the relevant market area creates substantive rights for dealers that had no prior existence in law or contract, and diminishes a manufacturer’s existing rights under contracts executed before the 2010 Amendment. Application of the 2010 Amendment would give LaFontaine the substantive right to object where it previously could not — that is, the right to object to a proposed like-line dealership more than six, but less than nine miles away. Because retroactive application of the 2010 Amendment would interfere with Chrysler’s contractual right to establish dealerships outside of a six-mile radius of LaFontaine, such retroactive application is impermissible on these facts. Accordingly, the relevant market area in effect when Chrysler reached its 2007 Dealer Agreement with LaFontaine governs that agreement. Our conclusion is consistent with the recent interpretation of this exact amendment of the MVDA by the United States Court of Appeals for the Sixth Circuit. In Kia Motors, the Sixth Circuit upheld a manufacturer’s right, after the effective date of the 2010 Amendment, to establish a new like-line dealership approximately seven miles from an existing dealership. In doing so, the Sixth Circuit relied on the Kia-Glassman Dealer Agreement, which, like the 2007 Chrysler-LaFontaine Dealer Agreement here, predated the 2010 Amendment Applying Michigan retroactivity law, the Sixth Circuit concluded that the 2010 Amendment did not apply retroactively. The 2010 Amendment was silent as to retroactivity, and hence bore “no clear legislative intent that the Amendment should be applied retroactively.” Moreover, Kia’s rights under its preexisting Dealer Agreement with Glassman were vested rights, as they were contractual rather than statutory. Finally, the Sixth Circuit held that the amendment “[c]learly. .. imposes a new substantive duty and provides a new substantive right that did not previously exist,” and therefore was not procedural or remedial. The Sixth Circuit recognized the retroactivity issue presented by these circumstances, contrary to the Court of Appeals below, which undertook no retroactivity analysis whatsoever. We find the Sixth Circuit’s analysis and application of Michigan law persuasive. Accordingly, we hold that the pre-amendment six-mile radius that was in effect at the time Chrysler and LaFontaine entered into their 2007 Dealer Agreement governs that agreement such that Chrysler need not show good cause for the establishment of IHS’s proposed dealership location. IV CONCLUSION The Court of Appeals erred by limiting its analysis to whether the 2010 Chrysler-IHS Letter of Intent constituted a Dealer Agreement within the meaning of the MVDA. While we agree with the Court of Appeals that the 2010 LOI created no substantive rights with which application of the 2010 Amendment could interfere, Chrysler’s 2007 Dealer Agreement with LaFontaine did create such rights. Retroactive application of the 2010 Amendment would subject Chrysler to greater burdens than those in place when the 2007 Dealer Agreement went into effect because it would require Chrysler to show good cause for the establishment of a broader geographical range of dealerships. Likewise, retroactive application would grant LaFontaine greater substantive rights than the 2007 agreement, allowing LaFontaine to challenge the establishment of dealerships that it previously could not. Accordingly, retroactive application of the 2010 Amendment’s nine-mile relevant market area would impinge upon Chrysler’s rights under its 2007 agreement with LaFontaine. Because nothing in the language of the 2010 Amendment evinces the Legislature’s intent that the amendment apply retroactively, we decline to give it retroactive effect. We therefore vacate the judgment of the Court of Appeals and remand this case to the Washtenaw Circuit Court for reinstatement of summary disposition in favor of Chrysler and IHS. Young, C.J., and Cavanagh, Markman, Zahra, McCormack, and Viviano, JJ., concurred with Kelly, J. MCL 445.1561 et seq. Although the 2007 Dealer Agreement makes no reference to relevant market area, the parties do not dispute that some version of the MVDA applies to the 2007 Dealer Agreement. MCL 445.1576(3) provides: Within 30 days after receiving the notice provided for in subsection (2), or within 30 days after the end of any appeal procedure provided by the manufacturer or distributor, a new motor vehicle dealer may bring a declaratory judgment action in the circuit court for the county in which the new motor vehicle dealer is located to determine whether good cause exists for the establishing or relocating of a proposed new motor vehicle dealer. Once an action has been filed, the manufacturer or distributor shall not establish or relocate the proposed new motor vehicle dealer until the circuit court has rendered a decision on the matter. An action brought pursuant to this section shall be given precedence over all other civil matters on the court’s docket. This former version of what is now MCL 445.1566(l)(a) applied to counties with populations above 25,000, including Washtenaw County. Specifically, as it related to the facility’s requirements, the LOI provided: Completion of all of the requirements of this LOI to [Chrysler’s] satisfaction within the time periods specified herein and by the Expiration Date are material terms of this LOI. Failure to complete these requirements within the time periods specified herein will be a material breach of this LOI and [Chrysler] will have the right to terminate this LOI. Furthermore, any obligation of [Chrysler] to enter into [a Dodge Sales and Service Agreement] with You will be void and [Chrysler] will have no further obligation to You nor any liability to You. MCL 445.1566(l)(a). The current nine-mile radius applies to counties with populations above 150,000, which includes Washtenaw County. This amendment, contained in 2010 PA 139, took immediate effect upon the Governor’s signature on August 4, 2010. LaFontaine Saline Inc v Chrysler Group LLC, 298 Mich App 576, 588-589; 828 NW2d 446 (2012), quoting MCL 445.1562(2), as amended by 1998 PA 456 (quotation marks omitted). Id. at 587-588. Id. at 590-591. LaFontaine Saline, Inc v Chrysler Group LLC, 495 Mich 870 (2013). Spiek v Dep’t of Transp, 456 Mich 331, 333; 572 NW2d 201 (1998). Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634 (2013). Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001). Morales v Auto-Owners Insurance Co (After Remand), 469 Mich 487, 490; 672 NW2d 849 (2003). Brewer v AD Transp Express, Inc, 486 Mich 50, 53; 782 NW2d 475 (2010). MCL 445.1562(2), as amended by 1998 PA 456 (emphasis supplied). The 2010 amendment also amended the definition of “dealer agreement,” renumbered as MCL 445.1562(3), hut the scope of that amendment is immaterial here. Crane v Hardy, 1 Mich 56, 62-63 (1848), quoting McCracken v Hayward, 43 US 608, 612; 11 L Ed 397 (1844) (emphasis supplied). See also State Hwy Comm’r v Detroit City Controller, 331 Mich 337, 352; 49 NW2d 318 (1951), quoting Von Hoffman v City of Quincy, 71 US 535, 550; 18 L Ed 403 (1866) (stating that it is “ ‘settled that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to and incorporated in its terms.’ ”). Indeed, at no point does the LOI purport to establish the types or numbers of automobiles Chrysler would provide to IHS, wholesale purchase price for any such vehicles, or any other terms relevant to the purchase and sale or resale of new motor vehicles and motor vehicle accessories. The only semblance of any such terms occurs in Paragraph 8 of the LOI, which provides that the precise terms “will change based on several factors, including changes that occur in the total industry new vehicle sales, changes in sales of new like-line vehicles in the sales locality, and changes in the number of like-line dealers in the sales locality.” Chrysler explicitly states that it “does not predict the number of new vehicles that [Chrysler] will sell to [IHS] or that [IHS] may sell.” Nor does the LOI establish either party’s rights or obligations regarding the purchase and sale or resale of new motor vehicles and accessories. Rather, it left these terms — terms essential to a Dealer Agreement — -for later determination. Professional Facilities Corp v Marks, 373 Mich 673, 679; 131 NW2d 60 (1964), quoting 1 Corbin, Contracts, § 29, p 68. This is so even though the 2007 Dealer Agreement at no point refers to the MVDA’s relevant market area provision. Clearly, contracting parties need not explicitly mention an applicable statute in order for that statute to govern the transaction at hand. Downriver Plaza Group v Southgate, 444 Mich 656, 666; 513 NW2d 807 (1994), quoting Gen Motors Corp v Romein, 503 US 181, 191; 112 S Ct 1105; 117 L Ed 2d 328 (1992). Frank W Lynch & Co v Flex Technologies, 463 Mich 578, 583; 624 NW2d 180 (2001). In re Certified Questions, 416 Mich 558, 570; 331 NW2d 456 (1982). Id. at 571 (noting that “[s]econd rule cases relate to measuring the amount of entitlement provided by a subsequent statute in part by services rendered pursuant to a prior statute”). Id. at 570-571. Id. at 571. Id. Brewer, 486 Mich at 56, quoting Frank W Lynch & Co, 463 Mich at 583. MCL 445.1567(l)-(2), MCL 445.1568, and MCL 445.1570 each begin with the preface “Notwithstanding any agreement.. ..” See 1998 PA 456, codified at MCL 445.1582a, which provides: The 1998 amendments to this act that added this section apply to agreements in existence on the effective date of this section and to agreements entered into or renewed after the effective date of this section. Brewer, 486 Mich at 56 (“[Providing a specific, future effective date and omitting any reference to retroactivity supports a conclusion that a statute should be applied prospectively only.”) (quotation marks and citation omitted). Hughes v Judges’ Retirement Bd, 407 Mich 75, 85; 282 NW2d 160 (1979). Hansen-Snyder Co v Gen Motors Corp, 371 Mich 480, 484; 124 NW2d 286 (1963). See Dale Baker Oldsmobile, Inc v Fiat Motors of North America, Inc, 794 F2d 213, 220 (CA 6, 1986) (rejecting dealer’s argument that manufacturer’s rights under dealer agreement were statutory rather than contractual). Frank W Lynch & Co, 463 Mich at 584 (quotation marks and citation omitted). See Hansen-Snyder Co, 371 Mich at 484 (presumption against retroactivity is “especially true when giving a statute retroactive operation will... create a new liability in connection with a past transaction, or invalidate a defense which was good when the statute was passed”). See Byjelich v John Hancock Mut Life Ins Co, 324 Mich 54, 61; 36 NW2d 212 (1949) (“A statute cannot be retroactive so as to change the substance of a contract previously entered into.”). Kia Motors America, Inc v Glassman Oldsmobile Saab Hyundai, Inc, 706 F3d 733 (CA 6, 2013). Id. at 736-737. Id. at 740-741. Id. at 740. Id. Id. Id. at 740-741.
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McCORMACK, J. The defendant, Jeffery Douglas, was convicted by a jury of first-degree and second-degree criminal sexual conduct in connection with the alleged sexual abuse of his then-three-year-old daughter, KD. Before us is whether the Court of Appeals erred in concluding that, as a result of evidentiary errors at trial and the ineffective assistance of counsel during both the pretrial and trial stages of the case, the defendant is entitled to a new trial and to the reinstatement of a plea offer he rejected. We agree with the Court of Appeals that a new trial is warranted in light of the errors by both the court and defense counsel at trial. We hold, however, that the Court of Appeals erred in concluding that the prosecution’s prior plea offer must be reinstated, as we see no reversible error in the trial court’s determination to the contrary. Accordingly, we affirm the Court of Appeals in part, reverse in part, and remand for proceedings consistent with this opinion. I. FACTUAL AND PROCEDURAL OVERVIEW KD is the biological daughter of the defendant and Jessica Brodie. The defendant and Brodie lived together for approximately seven years, during which time KD was born. The couple separated at the end of March 2008. Around that time, the defendant and Brodie each filed domestic violence charges against the other, which were ultimately dismissed. Upon the recommendation of Children’s Protective Services (CPS), KD went to live with the defendant in May 2008; KD was 31/z years old at the time. The defendant and KD lived with the defendant’s mother for approximately one month, and then lived with his current wife (then his girlfriend) from June 2008 until January 2009. At that point, KD went to live with Brodie and spent alternating weekends with the defendant. In May 2009, the defendant married his current wife and the couple announced her pregnancy shortly thereafter. In June 2009, the instant allegations of sexual abuse surfaced: namely, that the defendant had made KD perform fellatio on him while he and KD were living with his mother approximately a year earlier, and that the defendant had made KD touch his penis on a separate, prior occasion. According to Brodie, KD spontaneously disclosed the alleged fellatio to her while the two were in the car together. As a result, Brodie moved up KD’s preexisting appointment with her therapist, who in turn contacted CPS after speaking with KD. CPS opened an investigation and, together with local police, arranged for a forensic interview of KD at Care House, a social services center committed to the prevention of child abuse. During that interview, KD discussed the alleged fellatio and touching. The defendant was thereafter charged with one count of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(l)(a), and one count of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(l)(a); CPS also filed a petition to initiate child protective proceedings. KD and Brodie testified at a preliminary examination. Prior to that hearing, the prosecution discussed with defense counsel the possibility of a plea to one count of attempted CSC, which the defendant rejected. The case proceeded to trial in March 2010. Shortly beforehand, the prosecution extended a second plea offer to the defendant for one count of fourth- degree criminal sexual conduct (CSC-IV), MCL 750.520e, which the defendant also rejected. At trial, the prosecution presented testimony from KD (by then five years old), Brodie, and certain individuals involved in the underlying investigation of the case: Detective Sergeant Gary Muir, who testified, in relevant part, to the content of a recorded telephone conversation between the defendant and Brodie; State Police Trooper Larry Rothman, who testified regarding two interviews he had conducted with the defendant in connection with the allegations; CPS worker Diana Fallone, who testified regarding her investigation of the allegations and decision to commence child protective proceedings; and forensic interviewer Jennifer Wheeler, who was qualified as an expert and, over the defendant’s objection, testified to the content of her interview with KD. The jury was also shown a video recording of that interview, again over the defendant’s objection. The defendant testified in his own defense, denying any wrongdoing. The defendant also presented testimony from his mother, with whom he and KD were living at the time the fellatio was alleged to have occurred, and from his current wife. The defendant’s theory at trial was that the allegations of abuse had been fabricated by Brodie out of spite toward the defendant and his new wife, and that Brodie had coached KD accordingly. The jury convicted the defendant as charged. As he had throughout the pretrial and trial stages of the case, the defendant maintained his innocence at sentencing. The trial court initially sentenced the defendant to concurrent prison terms of 85 to 360 months and 38 to 180 months for the CSC-I and -II convictions, respectively. After the defendant’s term of incarceration be gan, however, the Department of Corrections notified the court, and the court in turn notified the parties, that the defendant had not been sentenced in accordance with MCL 750.520b(2)(b), which requires a 25-year mandatory minimum sentence for his conviction of CSC-I. Neither the court, the prosecution, nor defense counsel appear to have been aware of this mandatory minimum before receiving this correspondence, and the defendant had not been informed of it at any point prior. The parties then filed competing motions: the prosecution, to modify the sentence in accordance with the mandatory minimum; the defendant, for reinstatement of the prosecution’s second pretrial plea offer, for a new trial, and for a Ginther hearing, claiming evidentiary errors at trial and ineffective assistance of counsel at the pretrial and trial stages. On September 9, 2010, the trial court held a hearing on the motions, at which the defendant and his trial counsel testified; the court thereafter granted the prosecution’s motion to modify the sentence and denied the defendant’s requests for relief. The testimony received at the hearing and the court’s subsequent ruling on the motions focused predominantly on the pretrial advice the defendant had received from counsel regarding the prosecution’s plea offer and the consequences of a conviction at trial, and to what extent any errors in that advice affected the defendant’s decision to reject the offer. The defendant appealed, and the Court of Appeals reversed, concluding that the defendant was entitled both to a new trial and to reinstatement of the prosecution’s plea offer. People v Douglas, 296 Mich App 186; 817 NW2d 640 (2012). The Court of Appeals found numerous evidentiary errors at trial, committed by both the court and defense counsel, that undermined the reliability of the jury’s verdict and warranted a new trial. Namely, the Court of Appeals held that the trial court erred in admitting, through Wheeler’s testimony and the video recording, KD’s out-of-court statements during the forensic interview regarding the alleged abuse. It further held that defense counsel was ineffective both for failing to object to certain inadmissible testimony from Brodie, Muir, and Fallone that bolstered KD’s credibility, and for failing to impeach KD at trial with her preliminary examination testimony. The Court of Appeals also concluded that the defendant was entitled to relief on his claim of ineffective assistance of counsel at the pretrial stage, in light of the incorrect advice counsel provided in connection with the prosecution’s plea offer. Accordingly, the Court of Appeals ordered that, upon remand, the prosecution must reoffer that plea to the defendant. The prosecution then sought leave to appeal in this Court, challenging both the award of a new trial to the defendant and the requirement that the prosecution’s prior plea offer be reinstated. We granted leave to appeal in order to review these issues. People v Douglas, 493 Mich 876 (2012). II. STANDARD OF REVIEW A trial court’s decision to admit evidence will not be disturbed absent an abuse of discretion, which occurs when the court “chooses an outcome that falls outside the range of principled outcomes.” People v Musser, 494 Mich 337, 348; 835 NW2d 319 (2013). If the court’s evidentiary error is nonconstitutional and preserved, then it “ ‘is presumed not to be a ground for reversal unless it affirmatively appears that, more probably than not, it was outcome determinative’ ” — i.e., that “it undermined the reliability of the verdict.” Id., quoting People v Krueger, 466 Mich 50, 54; 643 NW2d 223 (2002). Whether the defendant received the effective assistance of counsel guaranteed him under the United States and Michigan Constitutions is a mixed question of fact and law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012), citing People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011). This Court reviews for clear error the trial court’s findings of fact in this regard, and reviews de novo questions of constitutional law. Id. III. THE DEFENDANT’S ENTITLEMENT TO A NEW TRIAL We turn first to the Court of Appeals’ determination that the defendant is entitled to a new trial. We agree that such relief is warranted. This conclusion stems from errors made by both the trial court and defense counsel in the handling of evidence presented through three witnesses for the prosecution: forensic interviewer Wheeler, Detective Sergeant Muir, and CPS worker Fallone. As set forth below, the trial court erred in twice admitting the out-of-court statements made by KD to Wheeler during her forensic interview regarding the alleged fellatio; furthermore, defense counsel’s performance was constitutionally deficient in permitting Muir, Fallone, and Wheeler to offer inadmissible testimony vouching for KD’s credibility. The trial court’s error and defense counsel’s deficient performance were each sufficiently prejudicial to require a new trial. A. THE EVIDENCE AT TRIAL 1. THE PROSECUTION’S CASE-IN-CHIEF With no physical evidence of or third-party witnesses to the alleged abuse, the prosecution built its case around the credibility of KD’s in-court and out-of-court statements, and the unreliability of the defendant’s denials. The prosecution’s first witness was five-year-old KD, who testified that she sucked the defendant’s “peepee” and touched it with her hand. She initially denied that his “peepee” touched any part of her body when she sucked it, including her mouth, but later indicated that she touched it once with her hands, and once with her mouth. She also expressed uncertainty regarding what she meant by “peepee.” As to the alleged fellatio, KD indicated that it happened while she and the defendant were alone in a bedroom at the defendant’s mother’s house, that the defendant was awake and lying on a bed, and that he asked her to do it. KD testified that she told Brodie this while at Brodie’s house, and that she told Brodie the truth; she denied telling anyone but Brodie, but also indicated that she talked about it with “Jennifer” and “Tara” (whom the record indicates to be Wheeler and KD’s therapist, respectively). She affirmed that she also told Brodie that milk came out of the defendant’s “peepee” and, when asked if she told Brodie that the “milk” tasted like cherry, KD replied that it tasted like “peepee and regular milk.” As to the alleged touching, KD could not remember when it happened, but said she touched the defendant’s “peepee” with her stepsister. The prosecution next called Brodie, who testified that in early June 2009, KD “ spontaneous [ly]” told her that “I sucked my daddy’s peepee until the milk came out, and my daddy said, oh yeah, that’s how you do it.” Contrary to KD’s testimony, Brodie indicated that this happened while she was driving in the car with KD to pick up her fiancé. When asked by Brodie, KD said this happened in the office at the defendant’s mother’s house. When asked if KD ever told her that the milk tasted like cherry, Brodie replied that KD said that at the preliminary examination but had never told her that. Brodie testified that she then moved up KD’s therapy appointment in light of the disclosure and, when CPS thereafter became involved, took KD to Care House for a forensic interview. Brodie denied that she told KD what to say; she also denied that she held any animosity toward the defendant or his new wife, or that she threatened either of them or their relationship with KD at any point prior to KD’s disclosure. Detective Sergeant Muir then testified about his role in the investigation of these allegations. In particular, Muir testified that, after KD’s forensic interview, he asked Brodie to make a telephone call to defendant regarding the allegations. Muir recounted that Brodie told the defendant “[t]hat [KD] had said that she had sucked on her dad’s peepee and stuff came out,” and that, when the defendant responded that he did not know why KD would say that, Brodie replied, “I know my daughter don’t lie; why is she making these allegations then; was there anything that happened that, y’know, she might have seen or observed that would cause her to say this happened?” Muir further testified that Brodie and the defendant discussed an incident when the defendant woke up to KD touching his penis; the defendant indicated he had told Brodie this at the time, which she did not recall, and also that he had told KD “it was a bad thing to do.” Defense counsel did not object to any of this testimony. The prosecution then presented expert testimony from Wheeler regarding KD’s forensic interview at Care House. Before Wheeler took the stand, defense counsel objected that KD’s out-of-court statements during the forensic interview were inadmissible hearsay, arguing in particular that they did not meet certain requirements of MRE 803A’s categorical hearsay exception. The trial court overruled the objection. Wheeler testified about her background and experience as a child forensic interviewer, which included “thousands” of such interviews, and was qualified as an expert in that field. After describing Care House (which she characterized as a “neutral location”) and the general protocol used for child forensic interviews, Wheeler discussed her interview with KD. She testified that KD told her that “[m]y daddy made me suck his peepee,” and that “[o]ne time we sucked it, and one time we touched it,” repeating these statements throughout her testimony and using body diagrams from the interview — including one labeled with the defendant’s name — to illustrate them. She also testified that KD told her that the alleged fellatio happened at the house of the defendant’s mother, with just her and the defendant in the room; that KD “pointed to her mouth” when asked “what did he make you suck it with”; and that KD told her the “milk” tasted like “peepee milk,” and not like cherry. Wheeler further testified that KD told her it tasted “yuk” and it went down her throat. Wheeler considered whether there had been a misunderstanding, but determined there was not because KD was “very clear” about what happened. The prosecutor then asked Wheeler for her opinion regarding the truthfulness of KD’s statements. After defense counsel objected, the prosecutor rephrased, asking whether Wheeler believed KD had been coached to tell her these things; without objection, Wheeler opined that KD had not. Wheeler thereafter reaffirmed that she believed KD had not been coached by Brodie, but rather “was being truthful with [her]” during the interview. Again, defense counsel did not object. After Wheeler, the prosecution called CPS worker Diana Fallone, who testified that, in her capacity at CPS, she investigates complaints of abuse and neglect and that she performed such an investigation here. Fallone testified that, after interviewing Brodie and observing KD’s forensic interview, she filed a petition to commence child protective proceedings based on KD’s allegations. She testified that, if she thought a child were lying, she would not seek such a petition, and that she would have to substantiate that the allegations did in fact occur before seeking a petition. Fallone then testified that, based on her investigation in the instant case, she found that KD’s “allegations had been substantiated.” She further testified that, “based on the disclosures made at Care House, there was no indication that [KD] was coached or being untruthful[.]” Defense counsel did not object to this testimony. Trooper Rothman then testified that he interviewed the defendant twice about the allegations. Rothman testified that, when he mentioned the alleged fellatio to the defendant during the first interview, defendant denied that it happened but became more nervous as the interview went on, which Rothman typically takes as a sign of untruthfulness. Rothman further testified that, during the second interview, he asked the defendant if he remembered a time when KD sucked his penis and the defendant responded that he did not remember that; he also asked the defendant if KD did suck his penis, and the defendant said he did not remember. The defendant told Rothman that one time when KD was approximately two, he was sleeping in the nude and woke up to find her touching his penis, which he told her not to do. The defendant also mentioned to Rothman another time when he awoke and KD and her stepsister were in his bed. In both instances the defendant stated that the children were not there when he fell asleep. Rothman was never able to substantiate the suggestion that the stepsister was involved in any touching of the defendant, and acknowledged that the stepsister, in an interview, said it did not happen. The prosecution closed its case in chief by showing the jury the video recording of Wheeler’s forensic interview with KD. The defendant renewed his prior objection to these out-of-court statements under MRE 803A, which was again overruled. Consistent with Wheeler’s prior testimony, the video showed KD telling Wheeler that she sucked the defendant’s “peepee” one time and touched it one time, with both KD and Wheeler repeating these statements throughout the interview. Likewise, the video showed Wheeler eliciting from KD, through further questioning and redirection, additional details regarding the alleged fellatio, echoing and expanding upon Wheeler’s testimony to that effect. Lastly, the video showed Wheeler questioning KD about the separate touching incident. KD said that this happened on a different day and with her stepsister, and that the defendant told them both to “quit touching.” 2. THE DEFENDANT’S CASE-IN-CHIEF As with the prosecution, the defense focused on the credibility of KD’s accounts of the alleged abuse, at tempting to undermine their reliability and to impugn Brodie’s motives in connection with them. The defendant first called his mother, who testified that the defendant and KD lived with her for a two-week period and that, during that time, KD slept with her every night and the defendant slept in the office. She further testified that she did not leave her house during that two-week period and that the defendant was never alone with KD there. The defendant’s current wife then testified that the allegations against the defendant came right after they got married and found out they were having a baby. She also testified that Brodie was jealous, was angry with her, and would make constant phone calls to the defendant arguing over KD. The defendant testified last, and denied the allegations. He testified that on one occasion, when he was living with Brodie and KD was two, he awoke to KD touching his penis when he was sleeping in the nude; he did not know what she touched him with, did not put her in the bed or know how she got there, and would not have slept in the nude if he had known she was going to be there. He “freaked out” and told KD that “it’s a big no, no, you can’t do that.” He then told Brodie, and “there was no big concern about it” because “ [i]t was a two-year-old exploring.” The defendant also testified that, on another occasion, KD and her stepsister came into the bedroom and woke him up by jumping on the bed; he was sleeping in the nude at the time, but was under the covers. The defendant explained that his relationship with Brodie ended “[v]ery badly.” He testified that he initially received custody of KD in the spring of 2008 because the CPS worker investigating the domestic violence charges between him and Brodie concluded that Brodie was the aggressor, and because Brodie had made a statement to the effect that if she could not have KD, no one would. He further testified that KD stopped living with him in January 2009 because of issues with Brodie, who would call KD several times a night crying and would tell KD that she did not have to listen to the defendant’s wife. KD was very upset during this time, and so the defendant agreed to let her stay with Brodie to see if that would make things easier on her. The defendant testified that he first learned of the instant allegations of abuse right after he and his wife returned from their honeymoon. He testified that he denied the allegations of abuse when Rothman first interviewed him about them. When Rothman asked him again during their second interview whether KD had performed oral sex on him until he ejaculated, the defendant shook his head no, in disgust; when Rothman then asked whether the defendant could remember that happening, the defendant responded that he could not remember anything like that ever happening. B. ERRONEOUS ADMISSION OF HEARSAY FROM FORENSIC INTERVIEW 1. ADMISSIBILITY OF HEARSAY UNDER MRE 803A AND MRE 803(24) We start with the trial court’s admission, over the defendant’s objection, of KD’s out-of-court statements during the forensic interview, which came into evidence through both the testimony of Wheeler and the video recording of that interview. The parties do not dispute that these statements constitute hearsay under MRE 801(c), “offered in evidence to prove the truth of the matter asserted.” The prosecution contends, however, that this hearsay was properly admitted under MRE 803A’s categorical hearsay exception. MRE 803A “codified the common-law ‘tender years exception,’ ” People v Gursky, 486 Mich 596, 607; 786 NW2d 579 (2010), and provides, in relevant part: A statement describing an incident that included a sexual act performed with or on the declarant by the defendant... is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding, provided: (1) the declarant was under the age of ten when the statement was made; (2) the statement is shown to have been spontaneous and without indication of manufacture; (3) either the declarant made the statement immediately after the incident or any delay is excusable as having been caused by fear or other equally effective circumstance; and (4) the statement is introduced through the testimony of someone other than the declarant. If the declarant made more than one corroborative statement about the incident, only the first is admissible under this rule. According to the defendant, KD’s statements to Wheeler during the forensic interview fail to meet many of MRE 803A’s criteria: they were not spontaneously made; they were made over a year after the alleged incidents of abuse, and there has been no showing that this delay was caused by “fear or other equally effective circumstance”; and they do not reflect the first out-of-court statements made by KD corroborating her trial testimony concerning the alleged abuse. Only the last of these challenges was advanced in the defendant’s objection to this evidence at trial, rendering the others unpreserved for our review. See, e.g., People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001) (“To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal.”). We need not reach these unpreserved issues, however, because we find the defendant’s preserved challenge dispositive. As noted, we will not disturb a trial court’s decision to admit evidence unless that decision “falls outside the range of principled outcomes.” Musser, 494 Mich at 348. Such circumstances are present here. As the defendant argued, and the prosecution conceded before the trial court, KD’s disclosure of the alleged fellatio to Wheeler was not her first corroborative statement regarding that incident; rather, Brodie testified that KD previously disclosed that incident to her, which led to KD’s interview with Wheeler. As a result, MRE 803A does not permit admission of KD’s disclosure of the alleged fellatio during the forensic interview. The prosecution notes that KD’s disclosure to Wheeler of the separate touching incident was her first corroborative statement to that effect. Even if so, it does not render KD’s disclosure of the alleged fellatio to Wheeler any more admissible under MRE 803A, which permits only the first corroborative statement as to each “incident that included a sexual act performed with or on the declarant by the defendant.” Though the statute does not define the term “incident,” it is commonly understood to mean “an occurrence or event,” or “a distinct piece of action, as in a story.” Random House Webster’s College Dictionary (2001). There is no dispute here that the alleged fellatio and touching were distinct occurrences or events, separated by at least a number of months, taking place under different circumstances, and bearing no particular relation to one another be yond the parties involved. KD’s disclosure of the fellatio incident to Wheeler does not become admissible under MRE 803A simply because her first disclosure of the touching incident followed shortly after it. Accordingly, KD’s disclosure of the alleged fellatio to Wheeler falls outside the plain scope of MRE 803A’s hearsay exception and was improperly admitted under that rule. The prosecution, however, argues on appeal that KD’s out-of-court statements were nonetheless admissible under MRE 803(24)’s residual hearsay exception, citing People v Katt, 468 Mich 272, 290; 662 NW2d 12 (2003), in support. Like the Court of Appeals, we are not persuaded. As this Court has summarized, To be admitted under MRE 803(24), a hearsay statement must: (1) demonstrate circumstantial guarantees of trustworthiness equivalent to the categorical exceptions, (2) be relevant to a material fact, (3) be the most probative evidence of that fact reasonably available, and (4) serve the interests of justice by its admission. [Id. at 290.] The requirements of this residual exception “are stringent and will rarely be met, alleviating concerns that [it] will ‘swallow’ the categorical [hearsay] exceptions through overuse.” Id. at 289. Applying this standard in Katt, this Court held that a child’s disclosure of sexual abuse to a CPS worker, though inadmissible under MRE 803A because it was not the child’s first corroborative statement concerning the abuse, was nonetheless admissible under MRE 803(24). That result is not warranted here. First, KD’s disclosure of the alleged fellatio to Wheeler was not “the most probative evidence of that fact reasonably avail able.” Katt, 468 Mich at 290. This is “essentially... a ‘best evidence’ requirement,” which “is a high bar and will effectively limit use of the residual exception to exceptional circumstances.” Id. at 293 (quotation marks and citation omitted). In this case, the “best evidence” of KD’s out-of-court disclosure of the alleged fellatio was the statement made to Brodie prior to the forensic interview with Wheeler. To conclude otherwise would contravene MRE 803A’s express preference for first corroborative statements, and the rationale underlying it. See id. at 296 (“[T]he tender-years rule prefers a child’s first statement over later statements” because, “[a]s time goes on, a child’s perceptions become more and more influenced by the reactions of the adults with whom the child speaks.”). MRE 803(24)’s residual exception cannot be used to “swallow” MRE 803A’s categorical one in this fashion. Id. at 289. The testimony at issue in Katt did not present this same risk; while the child had previously disclosed the abuse to his mother, that first corroborative statement was not available or presented at trial. See id. at 295, 296. Not so here, and nothing in Katt indicates that Wheeler’s testimony regarding KD’s disclosure was properly admitted in addition to Brodie’s. Similarly, unlike the testimony in Katt, KD’s disclosure to Wheeler does not “demonstrate circumstantial guarantees of trustworthiness equivalent to” those required under MRE 803A, such that it merits admission despite its failure to meet those requirements. “To be admitted, residual hearsay must reach the same quantum of reliability as categorical hearsay; simply, it must do so in different ways.” Id. at 289-290. Thus, if a statement is “deficient in one or more requirements of a categorical exception, those deficiencies must be made up by alternate indicia of trustworthiness,” discerned from “the ‘totality of the circumstances’ surrounding [the] statement.” Id. at 289, 291. Here, Wheeler’s testimony regarding KD’s disclosure of the fellatio incident does not satisfy MRE 803A’s categorical hearsay exception because it was not her first corroborative statement; its spontaneity and delayed nature have also been questioned under that rule. The prosecution notes that the disclosure is nonetheless sufficiently trustworthy under MRE 803(24) because it, like the disclosure in Katt, was made in the course of a properly administered forensic interview. Katt, however, is again distinguishable, and does not support this conclusion. While the disclosure in Katt occurred during a properly administered forensic interview, that interview was intended to address unrelated concerns regarding potential physical abuse by the child’s mother. During the interview, the child spontaneously said that the defendant, his father, did “nasty stuff” to him and then disclosed numerous instances of sexual abuse. No investigation regarding such abuse had begun, and neither the child’s mother nor the interviewer knew that the interview would include this subject. Given the clear spontaneity of the disclosure, the lack of any motive to lie on the part of the mother or child, and the interviewer’s questioning methods, this Court concluded that the disclosure possessed “circumstantial guarantees of trustworthiness equivalent to the categorical exceptions.” Id. at 296. Similar circumstantial guarantees were lacking here. The specific purpose of Wheeler’s interview of KD was to investigate her prior disclosure of the alleged fellatio — a fact known to both Wheeler and Brodie before the interview — and Brodie’s motives in connection with KD’s disclosure and interview were strongly disputed. Indeed, concern that KD’s statements were improperly influenced by Brodie not only animates the defendant’s challenges to their spontaneity and delay under MRE 803A, but also informs their inadmissibility under that rule’s first corroborative statement requirement. See Katt, 468 Mich at 296. While the interviewing methods used by Wheeler may bear on the extent of this concern, we do not conclude, and Katt does not indicate, that they were alone sufficient to cure it. Nor do we see how these methods, or any other circumstances of this case, afforded KD’s disclosure to Wheeler “alternative indicia of trustworthiness” such that it should be deemed any more admissible under MRE 803(24)’s residual exception than it is under MRE 803A’s categorical one. 2. PREJUDICE FROM ERRONEOUSLY ADMITTED HEARSAY Accordingly, we conclude that the trial court abused its discretion by admitting KD’s out-of-court statements to Wheeler regarding the alleged fellatio. We further conclude that this preserved error more probably than not undermined the reliability of the verdict against the defendant, warranting relief. Musser, 494 Mich at 348. In reaching this conclusion, we consider “ ‘the nature of the error in light of the weight and strength of the untainted evidence.’ “ Id., quoting Krueger, 466 Mich at 54. In particular, as this Court has recognized, In a trial where the evidence essentially presents a one-on-one credibility contest between the victim and the defendant, hearsay evidence may tip the scales against the defendant, which means that the error is more harmful. This may be even more likely when the hearsay statement was made by a young child, as opposed to an older child or adult. [Gursky, 486 Mich at 620-621 (footnote omitted), citing People v Straight, 430 Mich 418, 427-428; 424 NW2d 257 (1988); People v Smith, 456 Mich 543, 555 n 5; 581 NW2d 654 (1998).] See also People v Anderson, 446 Mich 392, 407 n 37; 521 NW2d 538 (1994) (“While credibility contests are not uncommon in criminal sexual conduct cases, the wrongful admission of corroborating testimony ‘on either side could tip the scales’ and result in harmful error.”), quoting People v Gee, 406 Mich 279, 283; 278 NW2d 304 (1979) (citations omitted). This case presented the jury with a pure credibility contest; there were no third-party witnesses to either instance of alleged abuse, nor any physical evidence of it. As such, the prosecution’s case hinged heavily on KD’s credibility in her accounts of the alleged abuse, particularly the fellatio. With regard to the alleged fellatio, the only accounts properly before the jury were KD’s testimony at trial, and Brodie’s testimony regarding KD’s prior disclosure of it to her. The credibility of these accounts, and Brodie’s motives and influence in connection with them, were the focus of the defense and a central issue at trial. As a result of the court’s error, however, the prosecution was not limited to this evidence, and instead the jury was permitted to hear from KD twice more: first, through the hearsay testimony offered by Wheeler, and then again through the video recording of KD’s forensic interview. The prosecution characterizes this evidence as harmlessly cumulative of KD’s in-court testimony, pointing to our observations in Gursky that “where a hearsay statement is not offered and argued as substantive proof of guilt, but rather offered merely to corroborate the child’s testimony, it is more likely that the error will be harmless,” and that “[w]here the declarant himself testifies and is subject to cross-examination, the hearsay testimony is of less importance and less prejudicial.” Gursky, 486 Mich at 620-621. As we also cautioned in Gursky, however, “ ‘the fact that the statement [is] cumulative, standing alone, does not automatically result in a finding of harmless error,’ ” but is only one consideration to be accounted for when evaluating the prejudicial effect of the erroneously admitted hearsay. Id. (citation omitted). Thus, such cumulative hearsay testimony is more likely to be harmless where, unlike here, there is other evidence to corroborate the allegations beyond the declarant’s statements; meanwhile, the likelihood of harm may only increase where, as here, the declarant was a young child and the case was a pure credibility contest. Id. Based on the evidence presented in this case, we cannot conclude that Wheeler’s testimony and the video recording of the forensic interview were harmlessly cumulative; this hearsay evidence not only corroborated by echo KD’s in-court testimony, but added clarity, detail, and legitimacy to it. KD’s account of the fellatio at trial, while incriminating, left ample room for reasonable doubt; it betrayed uncertainty on fundamental details, was inconsistent in certain respects with Brodie’s corroborative testimony, and was clouded by the strongly disputed motives of Brodie. The evidence of KD’s disclosures to Wheeler, however, did much to alleviate this doubt. Rather than simply Brodie corroborating KD’s testimony, there now too was Wheeler, an expert no less, with no apparent partiality, repeating, clarifying, and more fully articulating KD’s general allegations. The video recording of the forensic inter view provided further reinforcement still, as the jury was able to watch KD herself testify again, this time at greater length, with the assistance of Wheeler’s expert questioning, and not subject to cross-examination, of course. This video confirmed Wheeler’s rendition of KD’s statements, repeated them more times over, and elaborated upon them, adding further detail to the graphic scene the prior testimony had sketched. The resulting prejudice is unsurprising. Wheeler’s testimony and the video recording of KD’s forensic interview left the jury with a much fuller, clearer, and more inculpatory account of the alleged fellatio than that which was properly admitted through KD and corroborated by Brodie. That this elucidation and reinforcement came through Wheeler, presented as a neutral and authoritative source in this pure credibility contest, only heightened the likelihood of its prejudice. The prosecution contends that any prejudice was immaterial in light of the defendant’s tacit admissions, pointing in particular to his failure to offer an outright denial to Trooper Rothman of the allegations of fellatio, saying instead that he did not remember anything of that sort happening. At trial, the defendant admitted to giving this response, but characterized his choice of words as responsive to Trooper Rothman’s specific question; according to the defendant, when Rothman asked if the fellatio did, in fact, occur, he denied it. While the jury certainly may have factored this testimony into its assessment of the defendant’s credibility, we, like the Court of Appeals, do not find it, or the other untainted evidence offered at trial, sufficiently powerful to restore confidence in the jury’s verdict in light of the trial court’s error. Rather, we conclude that KD’s erroneously admitted statements during the forensic interview more probably than not “tipped the scales” against the defendant such that the reliability of the verdict against him was undermined and a new trial is warranted. See, e.g., Gursky, 486 Mich at 621; Straight, 430 Mich at 427-428; Anderson, 446 Mich at 407 n 37. C. INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL We find this relief likewise warranted by defense counsel’s mishandling of inadmissible testimony offered by Wheeler, Fallone, and Muir vouching for KD’s credibility. As noted, Fallone testified that, based on her investigation, she found that KD’s “allegations had been substantiated” and that, “based on the disclosures made at Care House, there was no indication that [KD] was coached or being untruthful.]” As the Court of Appeals held, this testimony violated the well-established principle that “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.” Musser, 494 Mich at 349. See, e.g., People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007) (“It is generally improper for a witness to comment or provide an opinion on the credibility of another witness, because credibility matters are to be determined by the jury.”). Wheeler likewise violated this principle when she offered her expert conclusions that KD had not been coached by Brodie but rather was being truthful with her. See People v Peterson, 450 Mich 349, 352; 537 NW2d 857 (1995) (affirming that “an expert may not vouch for the veracity of a victim”). Similarly, Muir testified that, when Brodie confronted the defendant with KD’s allegations, the defendant denied them, leading Brodie to respond that “I know my daughter don’t lie; why is she making these allegations then.” The Court of Appeals found this testimony constituted inadmissible hearsay that improperly vouched for KD’s credibility. There is no dispute that Brodie’s out-of-court statements did not fall under any hearsay exception and, to the extent they were offered for their truth, they were not properly admitted. The prosecution, however, contends that Muir did not offer these statements for their truth, but only to provide context to the defendant’s half of the conversation, which was properly admitted under MRE 801(d)(2)(A). Even if so, we do not find Brodie’s commentary on KD’s credibility any more admissible. Muir properly testified to the defendant’s out-of-court denial of the allegations Brodie put to him; Brodie’s statement that “I know my daughter don’t lie” did not provide any meaningful context to this denial and could have easily been omitted “without harming the probative value of [the] defendant’s statements.” Musser, 494 Mich at 356. Furthermore, any minimal contextual value this statement may have added was substantially outweighed by the risk that the jury would take the statement for its truth — a risk of particular significance in the context of a case such as this. See id. at 357-358 (explaining that, “especially in child-sexual abuse cases,” “a trial court should be particularly mindful that when a statement is not being offered for the truth of the matter asserted and would otherwise be inadmissible if a witness testified to the same at trial, there is a danger that the jury might have difficulty limiting its consideration of the material to its proper purpose” of providing context to the defendant’s responses) (quotation marks and alteration marks omitted). Despite the plainly inadmissible nature of the testimony from Fallone and Muir, defense counsel did not object. And while defense counsel initially, and successfully, opposed the prosecution’s attempt to elicit an expert conclusion from Wheeler regarding the veracity of KD’s statements, he thereafter inexplicably permitted that testimony without objection. We agree with the Court of Appeals that, as a result, the defendant was denied the effective assistance of counsel. To be constitutionally effective, counsel’s performance must meet an “objective standard of reasonableness.” Trakhtenberg, 493 Mich at 51. In showing this standard has not been met, “a defendant must overcome the strong presumption that counsel’s performance was born from a sound trial strategy.” Id. at 52, citing Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 674 (1984). The strategy, however, in fact must be sound, and counsel’s decisions as to it objectively reasonable; “a court cannot insulate the review of counsel’s performance by calling it trial strategy.” Id. We see no sound strategy in counsel’s failure to object to the vouching testimony offered by Wheeler, Fallone, and Muir. As defense counsel affirmed at the Ginther hearing, his trial strategy was to demonstrate that KD was not believable, that her testimony had been tainted by Brodie, and that she had told different stories to different people throughout the investigative process. In fact, he also testified that, consistent with this strategy, he would have objected to any opinions offered that KD was being truthful. Wheeler’s and Fallone’s testimony that KD was telling the truth, and Muir’s recounting of Brodie’s statements to that same effect, directly contravened this strategy. Defense counsel offered, and we see, no strategic reason to permit this inadmissible testimony to pass without objection here. We further conclude that, but for these deficiencies in counsel’s performance, “there is a reasonable probability that the outcome of [the defendant’s trial] would have been different.” Trakhtenberg, 493 Mich at 51. As already discussed, the prosecution’s case hinged wholly on the credibility of KD’s allegations, making defense counsel’s success in undermining that credibility all the more critical. Rather than pursuing this strategy vigilantly, defense counsel permitted Wheeler, Fallone, and Muir — three figures of apparent authority and impartiality, with direct involvement in and knowledge of the investigation leading to the defendant’s prosecution — to present testimony improperly reaching the key factual issue before the jury: whether ED was telling the truth. Wheeler’s and Fallone’s commentary was especially prejudicial in this regard — the former offering the jury an expert opinion regarding KD’s credibility in the instant case, and the latter offering the jury her, and CPS’s, professional assessment of the veracity and substantiation of KD’s complaints. We cannot overlook the influence such testimony may have in a case such as this. See Musser, 494 Mich at 357-358 (noting that, “given ‘the reliability problems created by children’s suggestibility,’ ” this Court “has condemned opinions related to the truthfulness of alleged child-sexual-abuse complainants” because the jury in such credibility contests “is often ‘looking to “hang its hat” on the testimony of witnesses it views as impartial’ ”), quoting Peterson, 450 Mich at 371, 376. Given the centrality of KD’s credibility to the prosecution’s case, the lack of evidence beyond her allegations, and the nature of the testimony offered by Wheeler, Fallone, and Muir, we believe it reasonably probable that, but for this testimony, the outcome of the defendant’s trial may have been different. See Musser, 494 Mich at 363-364. D. CONCLUSION We thus conclude that the defendant is entitled to a new trial as a result of both the trial court’s erroneous admission of KD’s statements regarding the alleged fellatio during her forensic interview, and defense counsel’s ineffective assistance with respect to the testimony of Wheeler, Fallone, and Muir. This case put before the jury serious and disturbing allegations, heavily contested facts and motives, and a singular, difficult choice: whether to believe KD or the defendant. The trial court’s and defense counsel’s errors each bore directly and significantly upon this choice. For the reasons discussed, we find the prejudicial effect of each of these errors too strong, and the untainted evidence too weak, to conclude that the jury’s verdict against the defendant remains sufficiently reliable to stand. We therefore affirm the Court of Appeals’ conclusion that the defendant is entitled to a new trial. Because we do not find them necessary to this award of relief, we do not reach a number of the defendant’s unpreserved evidentiary challenges: namely, whether KD’s disclosures of the alleged touching and fellatio incidents to Wheeler were inadmissible under MRE 803A because they were not spontaneously made, as well as whether those disclosures, and KD’s disclosure of the alleged fellatio to Brodie, were inadmissible under that rule because there was no demonstration of “fear or equally effective circumstance” excusing their substantial delay. The parties remain free to litigate these issues on retrial. We take this opportunity to note, however, that we agree with the observations in Judge RONAYNE Krause’s concurring opinion in the Court of Appeals that, when evaluating whether a delay in disclosure is excusable under MRE 803A, courts should bear in mind that “MRE 803A(3) requires any circumstance that would be similar in its effect on a victim as fear in inducing a delay in reporting, not a circumstance that is necessarily similar in nature to fear,” and that “[n]othing in the rule even requires that any ‘other equally effective circumstance’ must have been affirmatively created by the defendant.” Douglas, 296 Mich App at 211 (RONAYNE KEAUSE, J., concurring). We need not set forth a list of circumstances that are similar to fear in their effect on a child, as the determination whether such circumstances exist should be done by the trial court on a case-by-case basis. We likewise express no opinion as to whether such circumstances are present in this case — indeed, we agree with the sentiment expressed by Judge RONAYNE KRAUSE and shared by the Court of Appeals majority that the present record is “disappointing” in that regard — but leave the development and determination of that issue to the trial court in the first instance, if and when the issue is put before it. m THE DEFENDANT’S ENTITLEMENT TO REINSTATEMENT OF PLEA OFFER While we agree with the. Court of Appeals that the defendant is entitled to a new trial, we disagree that he is entitled to relief on the basis of his counsel’s deficient performance at the pretrial stage. Although during the plea-bargaining process counsel indisputably misadvised the defendant of the consequences he faced if convicted at trial, the trial court did not reversibly err in determining that the defendant has not shown prejudice as a result of counsel’s deficient performance. Before trial, the defendant was presented with two plea offers: the first, made before the preliminary examination, was for the defendant to plead guilty to attempted CSC, carrying a five-year maximum penalty; the second, made just before trial, was for the defendant to plead guilty to CSC-iy carrying a two-year maximum penalty. As to the first offer, counsel advised the defendant that the plea would likely entail jail rather than prison time; as to the second, that the defendant would serve ten months in county jail and would have to register as a sex offender. The defendant rejected both offers. There is no disagreement that counsel never informed the defendant that he faced a 25-year mandatory minimum prison sentence if convicted of CSC-I at trial. See MCL 750.520b(2)(b). Instead, counsel mistakenly advised the defendant that a conviction at trial would result in a potential maximum sentence of 20 years in prison, and that he would likely have to serve approximately five to eight years before being eligible for parole. Counsel also informed the defendant that a conviction for any CSC offense would require that he register as a sex offender. According to the defendant, counsel’s failure to properly advise him of the 25-year mandatory minimum sentence, as well as of certain consequences of sex-offender registration, denied him the effective assistance of counsel; as a result, the defendant contends, he is entitled to reinstatement of the prosecution’s second plea offer. As at trial, a defendant is entitled to the effective assistance of counsel in the plea-bargaining process. Lafler v Cooper, 566 US_, _; 132 S Ct 1376, 1384; 182 L Ed 2d 398 (2012). A defendant seeking relief for ineffective assistance in this context must meet Strickland’s familiar two-pronged standard by showing (1) “that counsel’s representation fell below an objective standard of reasonableness,” and (2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at_; 132 S Ct at 1384. In demonstrating prejudice, the “defendant must show the outcome of the plea process would have been different with competent advice.” Id. at_; 132 S Ct at 1384. Where, as here, the alleged prejudice resulting from counsel’s ineffectiveness is that the defendant rejected a plea offer and stood trial, a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court {i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed. [Id. at_; 132 S Ct at 1385.] The defendant has the burden of establishing the factual predicate of his ineffective assistance claim. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). And as already noted, a trial court’s factual findings in that regard are reviewed for clear error and cannot be disturbed unless “the reviewing court is left with a definite and firm conviction that the trial court made a mistake.” Armstrong, 490 Mich at 289. See MCR 2.613(C). Here, after hearing testimony from the defendant and defense counsel at the Ginther hearing, the trial court rejected the defendant’s claim of ineffective assistance. The court found that the defendant, at the time he rejected the prosecution’s second plea offer, believed that a conviction at trial would result in a 20-year maximum prison sentence, supervised to no contact with his children for 20 years, and registration as a sex offender. The court reasoned that, although the defendant thought he faced a 20-year maximum sentence rather than a 25-year mandatory minimum one if convicted, this misinformation made “no difference” in light of the defendant’s proclamations of “his innocence in the face of plea bargains that were offered.” The Court of Appeals reversed this determination, finding counsel’s performance deficient and rejecting the trial court’s conclusion that the defendant did not suffer prejudice as a result, explaining that (1) “there is a significant difference between the possibility of a 20-year term with the likelihood of serving a much shorter sentence and the certainty of serving a 25-year minimum term”; (2) defense counsel testified at the Ginther hearing that he would have “absolutely pressed” the defendant to accept the plea had counsel known of the 25-year mandatory minimum at the time; (3) the defendant likewise testified that he would have accepted that plea with the correct sentencing information, even if it meant limited to no contact with his children; and (4) the defendant testified that that his decision to reject the plea offer was also affected hy counsel’s mistaken advice that he would not be permitted to reside with his children for as long as he was required to register as a sex offender. We agree with the Court of Appeals that counsel’s mistaken advice regarding the sentence the defendant faced at trial fell below an objective standard of reason ableness. See, e.g., Padilla v Kentucky, 559 US 356, 370; 130 S Ct 1473; 176 L Ed 2d 284 (2010) (noting “the critical obligation of counsel to advise the client of the advantages and disadvantages of a plea agreement”) (quotation marks omitted); People v Corteway, 212 Mich App 442, 446; 538 NW2d 60 (1995) (explaining that counsel must provide advice during plea negotiations that is sufficient to allow the defendant “to make an informed and voluntary choice between trial and a guilty plea”). We likewise agree that the difference between a required 25-year mandatory minimum sentence and a possible 20-year maximum one might potentially affect an individual’s decision whether to accept a plea or go to trial. The trial court, however, did not conclude otherwise; rather, it found that this difference would not have affected this particular defendant’s decision to reject the pleas in this case in light of his protestations of innocence. We do not see reversible error in this determination. In concluding otherwise, the Court of Appeals made no mention of the role that the defendant’s belief in his innocence may have played in his decision to go to trial, despite its prominent place in the trial court’s reasoning, and instead focused on certain testimony offered by defense counsel and the defendant that knowledge of the 25-year mandatory minimum would have affected their treatment of the prosecution’s plea offer. Review of that testimony in full, however, paints a different picture. First, contrary to the Court of Appeals’ characterization, defense counsel did not testify that he would have “absolutely pressed” the defendant to accept the prosecution’s plea offer had he known of the 25-year mandatory minimum at the time. Rather, counsel stated that, “ [i]f there was a do-over on this, I would have absolutely pressed [the defendant] and insisted he take the deal. . . because we lost at trial, and the consequences are he’s now looking at 25 years in prison.” When asked what he would have done differently had he only known about the mandatory minimum, however, and not the ultimate outcome of the trial, defense counsel was much more equivocal in his response, saying simply that he “would have made sure [the defendant] understood how long 25 years was.” Counsel further testified that his and the defendant’s position had always been that the defendant would plead to nothing that would result in placing the defendant on the sex-offender registry, in part because the defendant was concerned about losing contact with his children, but also because he found the type of behavior to which he would be pleading “disgusting and offensive and [he] would never engage in” it. Correspondingly, defense counsel testified that the defendant has always maintained his innocence, a claim that defense counsel believed. This is consistent with defense counsel’s earlier representation to the trial court at the defendant’s sentencing hearing, in which he indicated that the defendant has “made it perfectly clear,” from arraignment and “consistently since,” that “he did not commit this crime,” and that the defendant “has made it clear that he turned down numerous plea bargains because he was basing his decision . . . upon his innocence.” Meanwhile, the defendant, as the Court of Appeals noted, testified that he would have accepted a plea had he known of the 25-year mandatory minimum, and also suggested that he would have been more inclined to accept a plea had he not mistakenly believed that sex-offender registration would prohibit him from living with his children for its duration. As noted, it is questionable that the defendant’s misconceptions regarding the consequences of sex-offender registration were caused by any deficient performance on counsel’s part. In any event, the full body of the defendant’s testimony undermines the credibility of his assertions that either these misconceptions or the misinformation regarding the sentence he faced at trial meaningfully influenced his decision to reject the prosecution’s plea offer. For instance, the defendant testified that the only way he would have taken a plea was if he knew of the 25-year mandatory minimum, and that he still would have taken the plea even if it meant limited to no contact with his children for a period of time. He also testified, however, that he would not have accepted any plea that required sex-offender registration because he was innocent and because it would affect his relationship with his children. The defendant further testified that he probably would not have accepted a plea that required any jail time and that, in deciding to reject the prosecution’s plea offer, the minimum sentence he faced at trial did not matter because he was innocent, he did not commit the crime, and he did not think he would lose. This testimony is confusing at best, and casts significant doubt upon what circumstances, if any, would have led the defendant to accept a plea. It certainly betrays no clear error in the trial court’s discernment of the common thread running throughout both the defendant’s and his counsel’s testimony: that the defendant rejected the prosecution’s plea offers because he was innocent of the charges, was not a sex offender, and was not interested in pleading guilty to repugnant acts that he did not commit. As a result, we are not “left with a definite and firm conviction that the trial court made a mistake” in finding that the defendant has failed to show prejudice stemming from his counsel’s deficient performance, Armstrong, 490 Mich at 289; rather, the record amply supports the conclusion that, even had the defendant been properly advised of the consequences he faced if convicted at trial, it was not reasonably probable that he would have accepted the prosecution’s plea offer. See Lafler, 566 US at_; 132 S Ct at 1384-1385. There is no indication that the trial court failed to duly consider the record in making its determination, including the terms of the plea available to the defendant, the consequences the defendant faced in rejecting that plea, the defendant’s understanding of the plea and those consequences, and the defendant’s motivations for assuming the risks of trial. Because we see no clear error in the trial court’s factual findings, nor any legal error in its analysis, we find no basis to reverse the trial court’s conclusion that relief is not warranted for the defendant’s claim of ineffective assistance at the pretrial stage. We reverse the Court of Appeals on this point and hold that the defendant is not entitled to reinstatement of the prosecution’s plea offer. V CONCLUSION For the foregoing reasons, we conclude that the defendant is entitled to a new trial, but is not entitled to reinstatement of the prosecution’s plea offer. Accordingly, we affirm the judgment of the Court of Appeals in part, reverse in part, and remand for proceedings consistent with this opinion. In addition, we deny as moot the defendant’s motion to expand the record. YOUNG, C.J., and Kelly and Zahra, JJ., concurred with McCormack, J. People v Ginther, 390 Mich 436, 212 NW2d 922 (1973). Judge Amy Ronayne Krause issued a concurring opinion, agreeing with all but one of the majority’s conclusions. Based on the record before the trial court, she concluded that the admission of Brodie’s testimony concerning KD’s initial disclosure did not provide a basis for relief. Defense counsel asked this question during his brief cross-examination of KD. At the prehminary examination, KD initially testified that the “milk” that came out of the defendant’s “peepee” tasted like cherry, but then said it tasted like “regular milk.” Defense counsel did not otherwise refer to or use KD’s preliminary examination testimony during his examination of her at trial. The defendant contends that this was not, in fact, KD’s first disclosure of the alleged touching, and seeks to expand the record to support this claim. The defendant, however, did not raise this challenge below, and while KD’s trial testimony suggests that she may have discussed this incident with her therapist, the present record contains no further information to that effect. For the purposes of resolving the instant appeal, we need not reach this dispute, but the parties remain free to litigate it on retrial. Likewise, KD’s disclosure of the touching incident to Wheeler does not hecome any less admissible under MRE 803A simply because her disclosure of the alleged fellatio incident fails that rule’s first-corroborative-statement requirement. Of course, such corroborative evidence is not necessary for the defendant to be convicted of the charged offenses, see MCL 750.520h, but its absence is properly considered when evaluating the prejudicial effect of the court’s erroneous admission of KD’s out-of-court statements to Wheeler. See Musser, 494 Mich at 363. We assume for the purposes of this analysis, without deciding, that Brodie’s account of KD’s disclosure was properly admitted. This in no way forecloses the defendant’s ability to challenge its admissibility on retrial. The prosecution claims this testimony was no different than testimony that KD’s behavior was consistent with that of a victim of sexual abuse, and thus was properly admitted under Peterson. We disagree. In Peterson, this Court recognized that an expert may offer testimony that a particular child’s specific behavior is consistent with that of a sexually abused child if the defendant either “raises the issue of the particular child victim’s post-incident behavior” or “attacks the child’s credibility” by “highlight[ing] behaviors exhibited by the victim that are also behaviors within [the child sexual abuse accommodation syndrome] and allud[ing] that the victim is incredible because of these behaviors.” Peterson, 450 Mich at 373-374 & n 13. Correspondingly, the scope of such expert testimony is limited to the specific behavior at issue. Id. at 374 n 13. Setting aside that Fallone did not testify as an expert, neither her nor Wheeler’s testimony fits these criteria. The defendant had not put at issue or attacked KD’s credibility on the basis of any particular behavior contemplated in Peterson, nor was Wheeler or Fallone explaining how any such behavior was consistent with that of an abused child. Rather, they directly and conclusively opined that KD’s allegations in the instant case were true and trustworthy. Such testimony does not fall not within the carefully circumscribed circumstances identified in Peterson, but instead remains subject to the general prohibition on testimony “vouching] for the veracity of a victim,” which Peterson also affirmed. Id. at 352. MRE 801(d)(2)(A) provides, “A statement is not hearsay if. .. [t]he statement is offered against a party and is . . . the party’s own statement . . ..” The trial court, for its part, did not address this evidence when rejecting the defendant’s claim of ineffective assistance of counsel at trial; rather, the only finding it made as to defense counsel’s trial performance was a brief reference to the decision whether to call KD’s stepsister as a witness for the defense. According to the prosecution, no prejudice inured from Fallone’s testimony because it stated nothing beyond what could be obviously inferred from her presence as a witness for the prosecution, citing Dobek, 274 Mich App at 71, in support. We disagree with this proposition, and do not read Dobek to support it. In that case, a police officer testified that he had no concern that the child-complainant was lying in her statements to him regarding the alleged sexual abuse at issue; this testimony was not objected to and occurred on redirect examination, after defense counsel had asked on cross-examination whether the officer’s observation that the complainant appeared uncomfortable was consistent with how individuals who are lying may appear. The defendant claimed prosecutorial misconduct in eliciting this testimony. The court of appeals rejected that claim, as it could not “conclude that the prosecutor proceeded with the questioning and elicited the testimony in bad faith, especially considering that defendant opened the door on the matter.” Id. The court additionally noted that, “[ajssuming plain error [in the testimony’s admission], defendant has not established prejudice, actual innocence, or damage to the integrity of the judicial proceedings” as to this unpreserved error because, “[g]iven that [the officer] was called as a witness by the prosecutor and that a criminal prosecution against defendant was pursued, the jurors surely understood that [the officer] believed that the victim was telling the truth even without the disputed testimony.” Id. Dobek thus held that certain erroneously admitted vouching testimony did not warrant relief because it was elicited in direct response to defense counsel’s questioning on the topic and was reviewed for prejudice under a significantly more deferential standard than is applicable here. Dobek does not suggest that Fallone’s mere presence on the stand as a witness for the prosecution cures any prejudice caused by her testimony vouching for KD, nor does it cast doubt upon our conclusion that, but for counsel’s ineffectiveness as to the testimony of Wheeler, Fallone, and Muir, there was a reasonable probability that the outcome of the defendant’s trial would have been different. In addition to the mishandling of Wheeler’s, Fallone’s, and Muir’s testimony, the Court of Appeals also found defense counsel ineffective for failing to impeach KD with certain inconsistencies between her trial testimony and her preliminary examination testimony, noting that there was “no logical reason” for not doing so. We disagree. As defense counsel explained at the Ginther hearing, his strategy with KD at trial, as a very young and sympathetic witness, “was to get her on and off the stand as quick as possible.” Defense counsel made a similar point to the jury during his closing argument, explaining that he did not press KD on the stand regarding certain details because “[tjhere’s just things that a child doesn’t need to go through, and there’s just no good way to do things like that.” Furthermore, although, as the dissent observes, certain portions of KD’s preliminary examination testimony were potentially damaging to her credibility, other portions were potentially supportive of it, corroborating her trial testimony. Thus, while we agree with the Court of Appeals that KD’s preliminary examination testimony contained material with which defense counsel could have attempted to impeach her at trial, we find it objectively reasonable for him to have concluded, given the circumstances, that the risks of this attempt outweighed its potential benefits. The Court of Appeals also concluded that defense counsel performed deficiently by failing to object to KD’s disclosures to Brodie and Wheeler on the basis of their delayed nature. Just as we need not reach the merits of that objection here, our disposition of this appeal does not require us to determine whether counsel was ineffective for failing to pursue it. We note, however, that the timing of KD’s disclosures supported the defendant’s theory that Brodie fabricated them out of spite; defense counsel thus may have chosen not to object to KD’s disclosures on the basis of delay so as not to encourage the development of a record at trial that might provide alternate explanations for that delay. We are thus not convinced that defense counsel’s failure to object on this basis was constitutionally ineffective, given how it dovetailed with his trial strategy. Indeed, prior to the enactment of the rules of evidence, this Court recognized that circumstances similar to fear in their effect on a child were sufficient to excuse a delayed disclosure under the common-law “tender years exception,” which, as previously noted, MRE 803A codified. See People v Baker, 251 Mich 322, 326; 232 NW 381 (1930) (finding delay in the child’s disclosure of abuse by her father excused in that case because the abuse coupled with the father’s “admonition to her not to tell [were] as effective to promote delay as threats by a stranger would have been”). The Court of Appeals did not expressly determine whether counsel performed deficiently in advising the defendant of the consequences of sex-offender registration; it did, however, note that “[although defense counsel advised defendant in this case that he would be required to register as a sex offender, counsel erroneously informed defendant that his registration would preclude him from living with his children for the duration of his registry, or 20 years.” Douglas, 296 Mich App at 208 n 6. In light of our determination that the defendant has not carried his burden of showing prejudice as a result of counsel’s claimed errors at the pretrial stage, we need not reach this question here. We note, however, that the record leaves considerable doubt as to whether counsel provided ineffective assistance regarding this aspect of his advice. According to the defendant, counsel incorrectly advised him that such registration would preclude him from living with or seeing his children for 20 years, a consequence which he believed would attach regardless of whether he accepted a plea or went to trial. According to defense counsel, however, he advised the defendant that sex-offender registration was mandatory for 25 years and he “had several conversations with [the defendant] . .. about the terrible things that happenQ to somebody that’s on the sex offenders’ list as it relates to their relationship with their children.” Namely, counsel advised the defendant that “his relationship with his children would be severely jeopardized with a CSC conviction,” that “his contact with his children could be severely restricted, particularly if. .. he was on probation or parole,” and that if “he was convicted in Lenawee County of a CSC charge involving one of his daughters, it was going to be very difficult to achieve any type of visitation with any of his other children” as there was a “real likelihood” that CPS would open an investigation and restrict the defendant’s ability to live or have unsupervised contact with any of his three children (including KD, but also the daughter he had with his wife and his wife’s daughter from a prior relationship). While defense counsel indicated a connection between these consequences and the defendant’s registration as a sex offender, it is not apparent that he advised the defendant that they arose directly from or would necessarily last the duration of that registration. Nor is it apparent that he otherwise misadvised the defendant as to the nature of these consequences, their relationship to sex-offender registration, or how they might inform the defendant’s decision whether to accept a plea or go to trial. Defense counsel also testified that he told the defendant that pleading guilty would require an admission of the acts to which he pled and also completion of sex offender therapy, which would likewise require such an admission. The prosecution urges that the defendant cannot show prejudice as a matter of law in light of his maintenance of innocence, because Michigan does not authorize the acceptance of guilty pleas under such circumstances. Our analysis here neither reaches nor endorses this position; rather, we simply conclude that, under the facts of this case, the trial court did not clearly err in evaluating how this particular defendant’s belief in his innocence affected his decision to reject the plea offers put before him. The dissent raises two primary objections to this conclusion, neither of which we find convincing. First, the dissent avers that we have “mischaracteriz[ed the] defendant’s posttrial testimony” in our analysis and that the defendant, as reflected by select portions of that testimony, “consistently maintained that he would have responded differently to the prosecution’s offers if he had known about the mandatory minimum sentence he was facing.” Simply put, the dissent finds a coherence in the defendant’s assertion of prejudice that our review of his testimony in full, along with that of his counsel, does not support. We fail to see any mischaracterization in our summary of that testimony, or any consistency in it that we have overlooked. The dissent may find the defendant’s testimony more credible than the trial court did, but that of course is not the relevant inquiry. We review the trial court’s factual findings for clear error, and in so doing must give due “regard ... to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” MCR 2.613(C). Neither the record nor the dissent’s impression of it reveals any basis for disregarding this “special opportunity” and finding clear error in the trial court’s evaluation of the defendant’s testimony. Similarly, the dissent believes that we have “give[n] too little weight to the magnitude of defense counsel’s error” in our analysis, because “[e]ven the most stubborn defendant would at least consider pleading guilty upon learning that he was about to stand trial on a charge for which the statutory minimum sentence was 25 years in prison.” We share the dissent’s appreciation of the magnitude of defense counsel’s error in this case, and likewise recognize the influence such an error might have on an individual’s decision whether to accept a plea of the sort offered here. At issue, however, is the effect of counsel’s error on this particular defendant, not some hypothetical one. This question, as the dissent observes, is inherently counterfactual, but nonetheless one on which the trial court can and did ably develop a complete record, and we see no reversible error in the court’s assessment of it. We cannot agree with the dissent that this assessment should have instead been dictated by the trial court’s — or our own — abstract belief of what “[e]ven the most stubborn defendant” might have done, “no matter how [the] defendant actually behaved” in this case. This, of course, does not foreclose the prosecution from choosing to reoffer this or another plea to the defendant on remand.
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In this cause, the parties’ joint motion for rehearing is considered and, in lieu of granting rehearing, it is ordered that the opinion of the Court and the judgment order are amended to provide that the judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Appeals for consideration of the remaining issues raised on appeal. Court of Appeals No. 247391.
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