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ZAHRA, J. In these three consolidated cases, we address the difficult question of whether defendants’ false statements made while serving as law enforcement officers during an internal affairs investigation can be used against them in criminal proceedings. We conclude that under the disclosures by law enforcement officers act (DLEOA), MCL 15.391 et seq., false or inaccurate information cannot be used against a law enforcement officer in subsequent criminal proceedings. To hold otherwise would defeat the Legislature’s stated intent to preclude the use of “any information,” MCL 15.393, a law enforcement officer is compelled to provide “under threat of. . . any . . . employment sanction,” MCL 15.391(a). And while we agree with the Court of Appeals that the Fifth Amendment of the United States Constitution as interpreted in Garrity v New Jersey does not compel this result, states may provide protections greater than those secured under the United States Constitution, and that is exactly what the Michigan Legislature did when it enacted the DLEOA in 2006. Simply stated, the DLEOA bars the use in a subsequent criminal proceeding of all information provided by a law enforcement officer under threat of any employment sanction. The act does not distinguish between true and false statements. Although the Legislature is free to amend the DLEOA to change the policy enacted, we are not. No matter how we view the policy, we must follow the language chosen by the Legislature. We reverse the judgment of the Court of Appeals and reinstate the orders of dismissal entered in the district court. I. BASIC PACTS AND PROCEEDINGS This case arises out of a disturbing encounter between Dajuan Hodges-Lamar and defendants, who at the time were police officers for the city of Detroit. While on duty in November 2009, defendant Hughes approached Hodges-Lamar while he was seated in a car at a gas station. Hughes initially appeared to question Hodges-Lamar, but quickly proceeded to assault him while defendants Harris and Little, who were also on duty, stood by and did nothing to stop the assault. Hodges-Lamar filed a complaint with the Detroit Police Department, which spurred an internal investigation by the Detroit Police Department’s Office of the Chief Investigator (OCI). All three defendants were called to testify at a Garrity hearing. The OCI presented defendants with an advice-of-rights form drafted by the Detroit Police Department. In relevant part, the form broadly stated: 4. If I refuse ... to answer questions ... I will be subject to departmental charges which could result in my dismissal from the police department. 5. If I do answer. . . neither my statements or any information or evidence which is gained by reason of such statements can be used against my [sic] in any subsequent criminal proceeding. The language of this form, like the language of DLEOA, did not expressly require truthful answers or truthful statements. Defendants also received a reservation-of-rights form drafted by the Detroit Police Department, which provided, in relevant part, as follows: It is my belief... that this Statement and the Preliminary Complaint Report will not and cannot be used against me in any subsequent proceedings other than disciplinary proceedings within the confines of the Department itself. For any and all other purposes, I hereby reserve my Constitutional rights to remain silent under the FIFTH and FOURTEENTH AMMENDMENTS [sic] to the UNITED STATES CONSTITUTION, and Article I, Section 17 of the MICHIGAN CONSTITUTION. All three defendants made false statements at the Garrity hearing. Defendants Harris and Little denied that Hughes had any physical contact with Hodges-Lamar. Hughes admitted that he removed Hodges-Lamar from Hodges-Lamar’s car during questioning, but Hughes maintained that he did not use any unnecessary force against Hodges-Lamar. A video recording of the incident surfaced after defendants had made their statements. The video recording was provided to the OCI. The video recording is wholly at odds with the statements provided by defendants. The prosecutor charged Hughes with common-law felony misconduct in office, MCL 750.505, misdemeanor assault and battery, MCL 750.81, and obstruction of justice, also under MCL 750.505. Defendants Harris and Little were each charged with one count of common-law obstruction of justice, MCL 750.505. The obstruction-of-justice charges were based on allegations that the officers lied during the initial investigation. Defendants brought motions in district court to dismiss the obstruction-of-justice charges. The district court concluded that defendants’ statements were protected by the DLEOA, even if the information provided was false or misleading. The court determined that without defendants’ statements the obstruction-of-justice charges could not be sustained and dismissed those charges. The prosecution appealed in the circuit court, which concluded that the district court had not abused its discretion by dismissing the obstruction-of-justice charges. The prosecution filed applications for leave to appeal in the Court of Appeals with regard to all three defendants. In a published opinion, a divided panel reversed the lower courts and reinstated the obstruction-of-justice charges. The majority recognized that its holding conflicted with People v Allen, which held that “the Fifth and Fourteenth Amendments’ benefits of freedom from [a] coerced waiver of the right to remain silent. . . must be respected,” even in a subsequent perjury prosecution. After noting that Allen was not binding precedent under MCR 7.215(J)(1), the majority concluded that “in light of the post-Gamfy caselaw permitting a witness’s statements to be used against him or her in a subsequent criminal prosecution for a collateral offense such as peijury or obstruction of justice, we expressly disavow Allen’s reasoning.” The majority further concluded that “[t]he district court. . . abused its discretion by excluding defendants’ false statements under MCL 15.393 . . . .” The majority reasoned that “the statute internally limits the phrase ‘involuntary statement’ to include true statements only, and that false statements and lies therefore fall outside the scope of the statute’s protection.” Judge WILDER dissented from the majority’s determination that false statements fall outside the DLEOA’s scope of protection. Relying on the plain meaning of the words of the act, Judge WILDER reasoned that the protection granted law enforcement officers under the DLEOA applies to all information garnered from an officer during a compulsory internal police investigation. Defendants filed separate applications for leave to appeal in this Court, each arguing that the Court of Appeals majority erred by concluding that the DLEOA’s scope of protection did not encompass defendants’ false statements. On February 4, 2015, we granted the applications, directing the parties to brief “whether the Disclosures by Law Enforcement Officers Act, MCL 15.391, et seq., precludes the use of false statements by a law enforcement officer in a prosecution for obstruction of justice f.]” II. STANDARD OF REVIEW We review de novo constitutional issues and matters of statutory interpretation. III. ANALYSIS We must determine whether Michigan law provides these defendants with more protections than those provided under the Fifth Amendment of the United States Constitution. While we touch on the constitutional right against self-incrimination found in the Fifth Amendment and the corresponding provision of the Michigan Constitution, this case does not turn on those constitutional provisions. Defendants do not maintain the protection they seek comes from Garrity or its progeny under federal or Michigan caselaw. Rather, defendants argue that the Legislature, in enacting the DLEOA, chose to afford law enforcement officers greater protection than that available under the Fifth Amendment and that this statutory protection requires dismissal of the obstruction-of-justice charges brought against them. This protection, defendants argue, is found in the plain language of the DLEOA, specifically MCL 16.393, which provides: An involuntary statement made by a law enforcement officer, and any information derived from that involuntary statement, shall not be used against the law enforcement officer in a criminal proceeding. The DLEOA defines the term “involuntary statement” as follows: “Involuntary statement” means information provided by a law enforcement officer, if compelled under threat of dismissal from employment or any other employment sanction, by the law enforcement agency that employs the law enforcement officer.[ ] The prosecution argues this language does not preclude the use in later criminal proceedings of false or misleading information obtained through a Garrity hearing. The prosecution characterizes the language as nothing more than a codification of the Garrity rule as it has been developed through federal caselaw. Thus, the prosecution argues that the DLEOA only provides the protection afforded under the Fifth Amendment. Because the Supreme Court of the United States has made it clear that the Fifth Amendment grants a privilege to remain silent without consequence, but “does not endow the person who testifies with a license to commit perjury,” the prosecution maintains that the DLEOA does not protect from subsequent criminal prosecution a law enforcement officer who provides false or misleading statements in a Garrity hearing. The plain language of the DLEOA controls our resolution of this dispute and compels us to agree with defendants. Applying traditional principles of statutory construction to the language of the DLEOA, we must conclude that the act sweeps within its scope the false statements offered by defendants. While we may question the Legislature’s decision to offer such unqualified protections, we are obligated to respect that decision and interpret the statute in accordance with its plain language. A. THE DLEOA’S PROTECTIONS REACH BOTH TRUE AND FALSE STATEMENTS Our primary focus in this case—and all cases in which we are called upon to interpret a statute—is the language of the statute under review. The words of the statute provide the best evidence of legislative intent and the policy choices made by the Legislature. Our role as members of the judiciary is not to second-guess those policy decisions or to change the words of a statute in order to reach a different result. In fact, a “clear and unambiguous statute leaves no room for judicial construction or interpretation.” Therefore, we start by examining the words of the statute, which “should be interpreted on the basis of their ordinary meaning and the context within which they are used in the statute.” The Legislature chose to use broad language in the DLEOA. The act prohibits any information derived from an involuntary statement from being used against the officer in a criminal proceeding and also prohibits public access to and disclosure of an involuntary statement, except under certain statutorily enumerated circumstances. The act does not expressly limit the statute’s protections to true statements, nor does it contain any express exception for perjury, lying, providing misinformation, or similar dishonesty. In contrast, numerous statutes concerning the use of compelled testimony contain express exceptions to allow the use of such dishonest testimony for impeachment purposes and in prosecutions for perjury. The Court of Appeals inferred the existence of such a limitation in the DLEOA from the Legislature’s use of the term “information.” While we agree that “information” comprises statements that are true, the word does not exclude statements that are false. The word “information” is not defined in the statute, but dictionaries define the word broadly as “knowledge communicated or received concerning a particular fact or circumstance”; “[k]nowledge or facts communicated about a particular subject, event, etc.; intelligence, news”; and “the communication or reception of knowledge or intelligence [.] ” The dissent focuses its attention on “knowledge,” but “intelligence” and “news,” both of which are used in dictionaries to describe “information,” can be false. Even “knowledge” can be defined to include “the sum of what is known,” which does not foreclose the possibility of including something that is false. We may even conclude that “knowledge” in its primary sense encompasses something that is true. But the statute nowhere uses the term “knowledge.” Instead, it protects “statements,” which no one disputes may be false and are statutorily defined as “information.” The critical inquiry is not whether “knowledge” equals “truth,” but whether “information” connotes only truth. Dictionaries, which define “information” as “knowledge,” “intelligence,” or “news,” do not yield a dispositive answer. Keeping in mind that we must interpret the word “information” as used in the DLEOA “according to the common and approved usage of the language,” we apply a tool that can aid in the discovery of “how particular words or phrases are actually used in written or spoken English.” The Corpus of Contemporary American English (COCA) allows users to “analyze!] ordinary meaning through a method that is quantifiable and verifiable.” The dissent claims that, in ordinary usage, “we should not think of someone who provided inaccurate statements as having imparted ‘knowledge’ or ‘infor mation’. . . ,” Empirical data from the COCA, however, demonstrates the opposite. In common usage, “information” is regularly used in conjunction with adjectives suggesting it may be both true and false. This strongly suggests that the unmodified word “information” can describe either true or false statements. Moreover, by reading each identified use of the word “information” in its surrounding context, it is clear that “information” is often used to describe false statements. Quite simply, “information” in common parlance describes perceptions conveyed about the world around us, which may be true or false. The Court of Appeals failed to account for the breadth and scope of the word “information.” We therefore cannot agree that the lay definitions of “information” exclude the falsehoods offered by defendants, or that the Legislature, by merely using that word, intended to impose an inherent requirement of veracity for involuntary statements to be covered under the DLEOA. To the contrary, examination of the Legislature’s use of “information” in other statutes that existed at the time the DLEOA was enacted leaves no doubt that the unmodified term is properly construed to apply to all “information,” whether true or false. In the years leading up to enactment of the DLEOA, the Legislature frequently modified the word “information” with the word “truthful” when it intended to reach only truthful information. Such an express limitation, found in a number of other statutes, including in statutes involving immunity or compelled statements, is not present here. Of particular relevance is MCL 780.702(3), which governs orders granting immunity to witnesses. The statute expressly limits immunity to “[t] ruthful testimony or other truthful information compelled under the order granting immunity . . . .” Although the statute was first enacted into law in 1968, its limitation of immunity to only truthful information was not present in the statute until 1999—seven years before the Legislature enacted the DLEOA. Similarly, MCL 750.157 prevents certain compelled “[t] ruthful testimony, evidence, or other truthful information” from being used against the person “in a criminal case, except for impeachment purposes or in a prosecution for perjury . . . .” The presence of the word “truthful” in these statutes is linked to this Court’s ruling in People v Mclntire —a 1999 opinion we find instructive and supportive of our analysis here. At issue in Mclntire was the proper interpretation of transactional immunity for witnesses compelled to answer potentially incriminating questions under MCL 767.6. The statute at the time provided, in relevant part, that “[n]o person required to answer such questions shall thereafter be prosecuted for any offense concerning which such answers may have tended to incriminate him.” In light of this plain language, the Mclntire Court rejected the notion that a grant of immunity under MCL 767.6 extended only to truthful answers, reasoning that the text of the statute was “clear and unambiguous” and “simply [did] not condition . . . immunity on truthful testimony.” In so holding, this Court stressed that it was bound—as we are here—by “traditional principles of statutory construction,” which require courts to “respect the constitutional role of the Legislature as the policy-making branch of government and constrain the judiciary from encroaching on this dedicated sphere of constitutional responsibility.” The Legislature received this message and subsequently amended MCL 767.6 and other statutes accordingly, adding “truthful” to terms such as “testimony” and “information” when the Legislature sought to add that limitation. The Legislature clearly knows how to limit information based on its veracity when such a limitation is important to conveying its intent. It did so in a number of other statutes it enacted or amended after McIntire, but it chose not to do so in the DLEOA, even though the Legislature had the benefit of Mclntire when it enacted the DLEOA in 2006. We cannot overlook this choice or refuse to give it effect. Accordingly, we conclude that the Legislature intended the word “information,” as used in MCL 15.391, to include no inherent requirement of veracity, but instead to include statements that may be true or false. B. THE PLAIN LANGUAGE OP THE DLEOA REQUIRES DISMISSAL OF THE OBSRUCTION-OF-JUSTICE CHARGES Applying this interpretation of the DLEOA’s plain language, the obstruction-of-justice charges brought against defendants must be dismissed. Defendants provided statements regarding their encounter with Mr. Hodges-Lamar under threat of termination; these statements, though false, are protected by the DLEOA and, therefore, cannot be used against defendants in a criminal proceeding. There is no dispute that defendants’ statements provided the only basis for charging them with obstruction of justice and that if this evidence is inadmissible, the charges must be dismissed. According to the Court of Appeals majority, however, this outcome must be rejected because it is “wholly contrary to the Legislature’s purpose in enacting the [DLEOA],” which “was to create a mechanism for facilitating internal police investigations and to provide an incentive for officers who cooperate by providing needed facts.” Justice MARKMAN now echoes this sentiment in dissent, concluding that “[n]o Legislature, and no legislator, could conceivably have intended such a result.” We understand how this result may be viewed as unpalatable. But as this Court has long made clear, our statutory analysis is controlled by principles of interpretation, not palatability of outcomes. It is not our role to rewrite the law or substitute our own policy judgment in the face of the text of the statute, or “to create an ambiguity where none exists in order to reach a desired result, albeit one with which [we] might wholeheartedly agree [if we were legislators] authorized to enact policy.” For the reasons discussed in this opinion, we discern from the plain language of the DLEOA a legislative intent to protect all Garrity statements, regardless of their veracity. And while there may be ample room to question the wisdom of such unqualified statutory protections, we see no principled basis for this Court to ignore or reject the Legislature’s enactment of them. We do not view recognition of these unqualified protections as absurd or flatly at odds with the purpose of the DLEOA. There is seemingly no dispute that the protections offered by the DLEOA are intended to encourage and facilitate officers’ participation in internal investigations, with the goal of rendering those investigations more fruitful and effective. As the plain language of the DLEOA makes clear, the Legislature deemed this purpose best served by not limiting the statute’s protections only to statements that are true. Regardless of whether we agree with this policy determination, we can conceive of reasons for it. The Legislature may very well have viewed the benefit of such a limitation—namely, the ability to criminally prosecute officers for lies told during an internal investigation—as outweighed by its costs. Not all statements, after all, are clearly true or entirely false, and the Legislature may have concluded that qualifying the DLEOA’s statutory protections based on veracity would unduly complicate the implementation of those protections or undermine the certainty and effectiveness of the protections offered. Indeed, the Allen Court observed that the exception to protection for perjured statements is “more precisely stated” as an exception to protection “where the prosecuting authority charges perjury,” a broader scope encompassing prosecutorial discretion and requiring the jury to ultimately decide the falsity of a statement. The Legislature may have reasoned—for better or worse—that it was more beneficial to punish the lies uncovered during the course of internal investigations with internal discipline. We fail to see the absurdity in such reasoning, particularly given that the Legislature knows how to, and does, modify the term “information” with “truthful” when it intends to bring only truthful information within the scope of its legislation. And, as this Court stressed in Mclntire, we need not be sure of the precise reasons for a statutory judgment or be convinced of the wisdom of the legislation. [I]n our democracy, a legislature is free to make ineffica-cious or even unwise policy choices. The correction of these policy choices is not a judicial function as long as the legislative choices do not offend the constitution. Instead, the correction must be left to the people and the tools of democracy: the ballot box, initiative, referendum, or constitutional amendment.[ ] This statement applies with equal force in the present case. The plain language of the DLEOA protects all statements given by officers under compulsion. This choice may seem odd, or reflective of questionable or even bad public policy, but it was the Legislature’s choice to make. We are not empowered to displace what the law actually provides with a judicial preference for what we believe it should provide. IV. CONCLUSION In sum, the Legislature chose not to protect only truthful information when it enacted the DLEOA. This is demonstrated by the plain language of the statute when contrasted with the Legislature’s known capacity to expressly limit the word “information” based on veracity in other statutes when such a limitation is critical to the Legislature’s intent. Accordingly, we must conclude that the DLEOA prohibits the use of an officer’s Garrity statement, even if false, in a criminal proceeding, including one for perjury or obstruction of justice. The Court of Appeals erred by concluding otherwise. We reverse the judgment of the Court of Appeals to the extent it held that, under the DLEOA, a law enforcement officer’s involuntary statement could be used against him or her in a criminal proceeding if the statement was false. We reinstate the orders en tered in the district court that dismissed the obstruction-of-justice charges brought against defendants. Young, C.J., and McCormack, Bernstein, and LARSEN, JJ., concurred with ZAHRA, J. The DLEOA does not provide law enforcement officers with immunity. It only prevents a law enforcement officer’s “involuntary” statements from being used against the officer in a criminal prosecution. MCL 15.391(a); MCL 15.393. A law enforcement officer may be prosecuted for criminal conduct based on evidence other than involuntary statements provided by the officer during an internal inquiry. In the present cases, defendant Hughes is subject to charges independent of the obstruction-of-justice charge that stems from his statement. And while we express no opinion regarding the validity of other charges that could have been asserted against defendants Harris and Little, we note that the Michigan Legislature has made it unlawful for a public official to willfully neglect one’s duty. MCL 750.478. The Supreme Court of the United States held in Garrity v New Jersey, 385 US 493, 500; 87 S Ct 616; 17 L Ed 2d 562 (1967), that “the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office .. ..” A hearing in which a law enforcement officer is called on to make a statement under threat of an employment sanction has become known as a “Garrity hearing,” and the statement provided under that threat, a “Garrity statement.” It was at a Garrity hearing that each defendant provided the Garrity statements that led to the common-law obstruction-of-justice charges at issue here. Recognizing that the rights granted defendants by the Detroit Police Department in its advice-of-rights form are extremely broad, this Court asked the parties to brief a question not previously raised by either party: “whether the [advice-of-rights form] signed by the defendants bar[s] the use of their statements in a criminal prosecution as violative of state or federal rights against self-incrimination.” People v Harris, 497 Mich 958 (2015). We need not address this issue because the case is fully resolved under the DLEOA. The video showed defendant Hughes approach Hodges-Lamar’s vehicle while defendants Harris and Little assumed positions at the rear of the vehicle and the passenger door. Hughes pulled Hodges-Lamar out of the vehicle by his collar, slammed him against the car, and searched him. Meanwhile, Harris and Little had moved closer to Hughes and Hodges-Lamar. Hughes pushed Hodges-Lamar toward Harris and Little. Finally, Hughes can be seen striking Hodges-Lamar with an open hand in the throat, punching him again, pushing him to the ground, picking him up by the collar several times, slamming him onto the car, and pushing him back toward Harris and Little. Afterward, Hodges-Lamar was issued a citation for driving without proof of insurance. Defendant Hughes did not challenge the bindover regarding his common-law felony misconduct in office and misdemeanor assault and battery charges. As a result, those charges are not at issue on appeal. People v Hughes, 306 Mich App 116; 855 NW2d 209 (2014). People v Allen, 15 Mich App 387, 396; 166 NW2d 664 (1968). Hughes, 306 Mich App at 128. Id. Id. at 129. Harris, 497 Mich 958. People v McKinley, 496 Mich 410, 414-415; 852 NW2d 770 (2014). See Malloy v Hogan, 378 US 1; 84 S Ct 1489; 12 L Ed 2d 653 (1964), which applied the Fifth Amendment protection against self-incrimination to the states through the Fourteenth Amendment. Many cases have developed Garrity into the rule as it is understood today. As is particularly relevant to this opinion, the Supreme Court of the United States has clarified, since Garrity, that its interpretation of the Fifth Amendment only applies to truthful statements. See, e.g., United States v Wong, 431 US 174; 97 S Ct 1823; 52 L Ed 2d 231 (1977); United States v Apfelbaum, 445 US 115; 100 S Ct 948; 63 L Ed 2d 250 (1980). As the Court of Appeals correctly observed, however, Michigan caselaw has not expressly kept pace with this federal development of the Garrity rule. The last published authority on the topic came from Allen, 15 Mich App 387, which concluded that Garrity applies to false statements; Allen was not directly repudiated by a Michigan court until the Court of Appeals’ opinion in this case. The parties do not challenge this repudiation, and, given the developments in Garrity jurisprudence in the time since Allen was issued, we see no reason to disturb it. MCL 15.391(a). Wong, 431 US at 178 (citation and quotation marks omitted). White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979). Coleman v Gurwin, 443 Mich 59, 65; 503 NW2d 435 (1993). People v Zajaczkowski, 493 Mich 6, 13; 825 NW2d 554 (2012). MCL 15.393. MCL 15.395. See, e.g., MCL 780.702(3); MCL 750.157; MCL 750.453. Random House Webster’s College Dictionary (2003). 1 Shorter Oxford English Dictionary (6th ed). Merriam-Webster’s Collegiate Dictionary (11th ed). See Random House Webster’s College Dictionary (2003) (defining “intelligence” as “information received or imparted; news” and defining “news” as “a report of a recent event; information”). Id. MCL 8.3a. State v Rasabout, 2015 Utah 72, ¶ 57; 356 P3d 1258 (2015) (Lee, A.C.J., concurring in part). Linguists call this type of analysis corpus linguistics, but the idea is consistent with how courts have understood statutory interpretation. For instance, the United States Supreme Court has looked to Westlaw and Lexis databases to examine how words are used in ordinary English when examining how Congress intended a particular word or phrase. See Texas Dep’t of Housing & Community Affairs v Inclusive Communities Project, Inc, 576 US _, _; 135 S Ct 2507, 2534; 192 L Ed 2d 514 (2015) (Auto, J., dissenting); Muscarello v United States, 524 US 125, 129; 118 S Ct 1911; 141 L Ed 2d 111 (1998). The Corpus of Contemporary American English contains over 520 million words from 220,225 texts, spread evenly among a 25-year period, 1990-2015. The texts include transcripts of live television broadcasts, newspapers, magazines, academic journals, and fiction. Corpus of Contemporary American English, Texts chttps:// corpus.byu.edu/coca/help/texts.asp> (accessed June 6, 2016) [https:// perma.cc//E77D-97XR]. Mouritsen, Hard Cases and Hard Data: Assessing Corpus Linguistics as an Empirical Path to Plain Meaning, 13 Colum Sci & Tech L Rev 156, 202 (2012). Post at 366. In conducting a COCA search, the word “accurate” is the most common adjective collocated with “information” to bear a meaning that refers to truth or falsity. The words “false” and “inaccurate” are also commonly collocated with “information.” The collocation search for “information” is available at Corpus of Contemporary American English, “Information” Frequency <http://eorpus.byu.edu/coca/?c=coc&q= 47913597> (accessed June 6, 2016). See Hard Cases and Hard Data, 13 Colum Sci & Tech L Rev at 197. This is known as a concordance search. After running a collocation search, a user can retrieve the results of a concordance search by navigating to a collocated word and examining each listing in its full context. For example, news stories from 2006—the year the Legislature enacted the DLEOA—describe “heightened publicity about false information on” the Internet and market analysts “who say they witnessed. fellow employees allowing hedge fund clients ... to add false or misleading information” to investment reports. Hafher, Growing "Wikipedia Refines Its ‘Anyone Can Edit’ Policy, New York Times (June 17, 2006); Masters, 2 Firms Claim Conspiracy in Analyst Reports, The Washington Post (April 26, 2006). The fact that “information” is often used without a modifying adjective to distinguish its veracity does not, as argued by the dissent, indicate that the word “information” connotes the conveyance of only truthful information. The absence of a modifying adjective around the word is immaterial; the word is used to describe perceptions about the world around us, which may be “true, false, and in-between.” Schieffer, CBS News, The Spread of Measles—And of Lies on the Internet <http://www.cbsnews.com/news/the-spread-of-measles-and-of-lies-on-the-intemet/> (posted February 8, 2015) (accessed June 6, 2016) [https://perma.cc/F4XK-9PAE]. We see little interpretive import in comparing “information” with “misinformation” and, in light of the definitions discussed in this opinion, are inclined to agree with Judge Wilder’s dissent that the latter is merely a subset of the former. Indeed, as already explained, a collocation and concordance search on COCA demonstrates that the word “information” is often modified by words connoting veracity, such as “accurate.” In addition to MCL 780.702 and MCL 750.157, discussed subsequently in the main text of this opinion, see, e.g., MCL 750.453 (“Truthful testimony, evidence, or other truthful information compelled under this section and any information derived directly or indirectly from that truthful testimony, evidence, or other truthful information shall not be used against the witness in a criminal case, except for impeachment purposes or in a prosecution for pequry or otherwise failing to testify or produce evidence as required.”); MCL 29.7(4) (expressly protecting only “truthful testimony” and “truthful information” from being used against a witness); MCL 780.702a(6) (stating that “truthful information” compelled under an order granting immunity may not be used against a witness); MCL 750.125(5) (expressly protecting “truthful information” from being used against a witness); MCL 750.122(2) (stating that paying a witness’s reasonable costs to “testify truthfully or provide truthful information” is not a crime). See also MCL 333.17014 (stating that certain informed consent statutes are designed to provide “objective, truthful information”); MCL 400.111b(20) (requiring certain professionals to provide “truthful information” about their qualifications). Other statutes do not modify the word “information” with “truthful,” but still suggest that “information” has no inherent connotation of veracity. See, e.g., MCL 423.452(b) (denying a presumption of actions in good faith to employers who disclose employee information “with a reckless disregard for the truth”); MCL 380.1230b (same quoted language as MCL 423.452(b)); MCL 750.411s(8)(i) (“ ‘Post a message’ means . . . communicating or attempting to . . . communicate information, whether truthful or untruthful, about the victim.”); MCL 449.20 (requiring that “[p]artners shall render on demand true and full information of all things affecting the partnership to any partner or the legal representative of any deceased partner or partner under legal disability”); MCL 449.1305(2) (setting forth the right of limited partners to “[o]btain from the general partners, from time to time, upon reasonable demand . . . true and full information regarding the state of the business and financial condition of the limited partnership”); MCL 324.5507(l)(e) (requiring that a certain application be accompanied by a certification “statfing] that, based on information and belief formed after reasonable inquiry, the statements and information in the application are true, accurate, and complete”); MCL 460.1093(9) (requiring that a certain report “shall be accompanied by an affidavit from a knowledgeable official of the customer that the information in the report is true and correct to the best of the official’s knowledge and belief’). Correspondingly, as Judge Wilder observed in dissent, the Legislature has frequently modified “information” with the adjectives “misleading” or “inaccurate” when the Legislature only intended to reach false information. See, e.g., MCL 769.34(10); MCL 750.492a(l); MCL 791.235(l)(b). We agree with Justice Maekman that the use of such modifiers in other statutes does not alone lead to the conclusion that the word “information,” as used in the DLEOA, includes both true and false statements. But the Legislature’s use of these modifiers elsewhere supports our understanding that the word “information” itself connotes nothing with respect to veracity. MCL 780.702(3) (emphasis added). Compare 1968 PA 289, § 2, with 1999 PA 249, § 2. Emphasis added. People v McIntire, 461 Mich 147; 599 NW2d 102 (1999). MCL 767.6, as amended by 1951 PA 276. McIntire, 461 Mich at 164 (citation and quotation marks omitted). Id. at 153 (citation and quotation marks omitted). See, e.g., Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993) (“Courts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute, and then, on the basis of that assumption, apply what is not there.”); Paselli v Utley, 286 Mich 638, 643; 282 NW 849 (1938) (“This court cannot write into the statutes provisions that the legislature has not seen fit to enact.”). In his dissent, Justice Makkman questions our reliance on Mclntire by suggesting that Mclntire has since been rendered moot. We find no support for that suggestion. To the contrary, McIntire guides our decision by interpreting a similar statute. The McIntire Court recognized—as we do here—that a court is not free to rewrite a statute because the end result may be subjectively unpalatable and that “the object of judicial statutory construction is not to determine whether there are valid alternative policy choices that the Legislature may or should have chosen, but to determine from the text of the statute the policy choice the Legislature actually made.” McIntire, 461 Mich at 167 (citation and quotation marks omitted). The Mclntire Court concluded that the statutory language at issue in that case unambiguously stated the Legislature’s actual policy choice and that there was no basis to disregard that choice “to further policy concerns that [a court], but apparently not the Legislature, prefers.” Id. at 160 (citation and quotation marks omitted). We are still obligated to give weight to the Legislature’s decision not to modify “information” in the DLEOA with “truthful” or to impose any other veracity-based limitation on the scope of the statute’s protections. This Court’s decision in Mclntire coupled with the unique history of immunity statutes in Michigan leads us to the conclusion that the DLEOA protects both true and false statements. The dissent would have us abandon Mclntire in favor of the federal rule articulated in Glichstein v United States, 222 US 139, 142; 32 S Ct 71; 66 L Ed 128 (1911). Whatever the merits of that rule, the existence of McIntire at the time the DLEOA was enacted provides us great insight into the intent of the Legislature. Accordingly, we see no reason to abandon Mclntire now. See Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000). We nonetheless recognize that Mclntire guides us in the limited and unique area of immunity-related statutes, and we express no opinion whether other statutes that incorporate the word “information” in an entirely different context outside that of immunity and compulsory statements might be interpreted differently. In urging against this result, the prosecution contends that the DLEOA’s legislative history makes clear that MCL 15.393 was meant to codify nothing more than the Fifth Amendment protections recognized by Garrity and its federal progeny—a contention Justice Markman also notes. We find this line of argument unavailing for several reasons. First, for the reasons already discussed, the plain language of MCL 15.393 controls our analysis and belies this interpretation, making clear that the statute’s protections extend beyond those presently guaranteed by the Fifth Amendment. We see no need or place for legislative history in this analysis. Second, the materials offered by the prosecution are legislative analyses, which this Court has recognized to be of little use in discerning the intent of the Legislature. See Johnson v Recca, 492 Mich 169, 188; 821 NW2d 520 (2012) (stating that a house legislative analysis, which is a staff-prepared summary of the law, is entitled to little judicial consideration in the construction of statutes); Frank W Lynch & Cov Flex Technologies, Inc, 463 Mich 578, 587; 624 NW2d 180 (2001) (“[A] legislative analysis is a feeble indicator of legislative intent. . ..”); In re Certified Question from the United States Court of Appeals for the Sixth Circuit, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003) (“In no way can a ‘legislative analysis’ be said to officially summarize the intentions of those who have been designated by the Constitution to be participants in this legislative process, the members of the House and Senate and the Governor. For that reason, legislative analyses should be accorded very little significance by courts when construing a statute.”). And third, these analyses offer no direct insight into the precise scope of the intended codification of Garrity, or whether MCL 15.393 was meant to afford protection beyond it. Indeed, it is not even clear whether the drafters of the analyses believed the statute was meant to codify Garrity as its rule had been interpreted by the Michigan Court of Appeals in Allen—which would render defendants’ statements constitutionally protected—or instead to codify Garrity as its rule had been developed by subsequent federal caselaw—which would afford no constitutional protection to those statements. Simply put, we see nothing of interpretive use in these materials or of persuasive value in the prosecution’s arguments based on them. Although the parties did not address the question, Justice Makkman also offers another interpretive avenue for constraining the scope of the DLEOA’s protections to those constitutionally provided under Garrity and its federal progeny: he suggests that “truthful” need not be included with “information” in the DLEOA because, as federal Fifth Amendment jurisprudence has held, an individual cannot be compelled to lie; accordingly, even if a lie can be deemed “information,” lies cannot be considered an “involuntary statement” or “compelled” within the meaning of the DLEOA. While we recognize the intuitive appeal of this reasoning, we find ourselves unable to square it with Mclntire and the numerous instances, previously cited in this opinion, in which the Legislature has described “information” as both “truthful” and “compelled.” See MCL 780.702(3) (referring to “[t]ruthful testimony or other truthful information compelled under the order granting immunity”); MCL 750.157 (referring to “[tjruthful testimony, evidence, or other truthful information compelled under this section”). If nothing else, these instances make clear that, by the time the DLEOA was enacted, the Legislature was not assuming that the term “compelled” would be inherently limited to its Fifth Amendment meaning or would express an intent to reach only truthful statements. Nor do we discern such a limitation in the term itself or view false statements as necessarily voluntary. Indeed, in Allen, the Court of Appeals rejected the contention that a false statement cannot be voluntary by observing that “what one reveals as a result of a waiver is of no import in determining whether the waiver was voluntary or coerced.” Allen, 15 Mich App at 393. In this case, there is no question that, but for the threat of termination, defendants in this case would have remained silent. Again, the advice of rights form presented to defendants by the Detroit Police Department stated, “If I refuse ... to answer questions . . . , I will be subject to departmental charges which could result in my dismissal from the police department,” and “[i]f I do answer . . . , neither my statements or any information or evidence which is gained by reason of such statements can be used against my [sic] in any subsequent criminal proceeding.” Hughes, 306 Mich App at 130. Post at 385. In so stating, Justice Markman implicitly suggests that our interpretation of the DLEOA renders an absurd result. A similar argument was raised in Mclntire and was rejected by this Court. McIntire, 461 Mich at 153 (citation and quotation marks omitted; alterations in original). As noted earlier, the DLEOA not only prohibits the use of involuntary statements in criminal proceedings, but also restricts their public disclosure. Complications could arise from a nondisclosure rale that turns on a determination of truth; who, for instance, would decide whether an officer’s statement was truthful? The DLEOA provides no insight into how such a rule might be implemented. Allen, 15 Mich App at 393. We also note that the DLEOA does not purport to wholly foreclose criminal prosecution for an officer’s conduct that has been the subject of internal inquiry; it simply prohibits using in that prosecution the officer’s “involuntary statement” and “any information derived” therefrom. MCL 15.393. McIntire, 461 Mich at 159. Id. (quotation marks and citations omitted).
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Oakland Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court. We do not retain jurisdiction.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for consideration as on leave granted.
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Memorandum Opinion. At issue is whether for purposes of the “highway exception” to governmental immunity from tort claims, MCL 691.1402, plaintiffs photographs of a sidewalk defect taken about 30 days after plaintiffs accident are sufficient evidence to establish a genuine issue of material fact regarding whether the defect existed at least 30 days before the accident. We conclude that such evidence alone is not probative of a sidewalk’s past condition and is thus insufficient, without more, to forestall summary disposition. Consequently we reverse the Court of Appeals judgment and reinstate the trial court’s dismissal of plaintiffs action. Plaintiff was walking on a sidewalk in defendant city when she was injured after tripping on a 2.5-inch vertical discontinuity between adjacent sidewalk slabs. She sued defendant, alleging inter alia that the sidewalk’s hazardous condition had existed for more than 30 days before her fall. However, in her deposition, she stated that she did not know for how long the discontinuity had existed. The only relevant evidence she submitted was three photographs of the defect taken by plaintiffs husband about 30 days after the accident. The photographs depict a raised portion of a sidewalk, each taken from a different perspective and seemingly from a different distance. In two of the photographs, a ruler is used to indicate the size of the discontinuity in the sidewalk. In the trial court, defendant moved for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (0(10). The trial court found plaintiffs photographs insufficient to establish the defect’s origin and dura tion and granted summary disposition without specifying under which rule it had granted the motion. On appeal, the Court of Appeals noted that the trial court had reviewed material outside of the pleadings and therefore concluded that the trial court could not have granted summary disposition under MCR 2.116(C)(8). Bernardoni v Saginaw, unpublished opinion per curiam of the Court of Appeals, issued June 23, 2015 (Docket No 320601), at 1, citing Spiek v Dep’t of Transp, 456 Mich 331, 338, 572 NW2d 201 (1998). The Court of Appeals found summary disposition improper under both MCR 2.116(C)(7) and (C)(10). Bernardoni, unpub op at 2. Specifically with respect to MCR 2.116(C)(10), the Court of Appeals reasoned that “in consideration of the high unlikeliness that sidewalk [] slabs could shift, wear, and accumulate debris with great rapidity, reasonable minds could differ as to whether the condition would have been present and readily apparent for at least 30 days before the injury.” Id. For the reasons stated below, we conclude that defendant is entitled to summary disposition under MCR 2.116(C)(10). Accordingly, we reverse the Court of Appeals on this ground and reinstate the trial court’s dismissal. We review de novo a trial court’s decision regarding a motion for summary disposition to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A motion for summary disposition made under MCR 2.116(0(10) tests the factual sufficiency of the complaint. Id. at 120. The Court considers all affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in the light most favorable to the party opposing the motion. Id. MCR 2.116(G)(4) states: A motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact. When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her. This rule requires the adverse party to set forth specific facts at the time of the motion showing a genuine issue for trial. Maiden, 461 Mich at 121. A reviewing court should consider the substantively admissible evidence actually proffered by the opposing party. Id. When the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. Id. at 120. Under the governmental tort liability act, MCL 691.1401 et seq., “a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.” MCL 691.1407(1). An exception to this immunity is found in MCL 691.1402, the highway exception, that allows individuals to “recover the damages suffered by him or her” resulting from a municipality’s failure to keep highways—including sidewalks, MCL 691.1401(c)—“in reasonable repair and in a condition reasonably safe and fit for travel. . . .” MCL 691.1402(1); see also Robinson v City of Lansing, 486 Mich 1, 7; 782 NW2d 171 (2010). When the liability allegedly arises from a sidewalk defect, a plaintiff must meet additional requirements: A municipal corporation is not liable for breach of a duty to maintain a sidewalk unless the plaintiff proves that at least 30 days before the occurrence of the relevant injury, death, or damage, the municipal corporation knew or, in the exercise of reasonable diligence, should have known of the existence of the defect in the sidewalk. [MCL 691.1402a(2)J A defendant is “conclusively presumed” to have knowledge of the defect “when the defect existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place.” MCL 691.1403. Thus, to invoke the highway exception as it pertains to sidewalks, a plaintiff must show that the defect existed at least 30 days before the accident. Robinson, 486 Mich at 19 (“MCL 691.1402a(1)(a) and MCL 691.1403 are virtually identical; they both limit a municipality’s liability to instances in which the municipality knew or should have known of the defect at least 30 days before the injury took place.”). “Generally, the question of whether a street defect, otherwise actionable against the municipality, ‘has existed a sufficient length of time and under such circumstances that the municipality is deemed to have notice is a question of fact, and not a question of law.’ ” Cruz v Saginaw, 370 Mich 476, 481; 122 NW2d 670 (1963), quoting Hendershott v Grand Rapids, 142 Mich 140, 143; 105 NW 140 (1905); see also Beamon v Highland Park, 85 Mich App 242, 246; 271 NW2d 187 (1978). In the instant case, after discovery had closed, defendant moved for summary disposition, arguing, inter alia, that there was no genuine issue of material fact that defendant did not know or have reason to know of the alleged defect. In opposition, plaintiff submitted as her only proof the aforementioned photographs of the alleged sidewalk defect taken about 30 days after the incident. No evidence was submitted to establish that the condition of the sidewalk in the photographs was the same 30 days before the incident. For the following reasons, these photographs are insufficient to raise a genuine issue of material fact regarding whether the defect originated at least 30 days before the incident. Plaintiff acknowledges that these photographs were taken about 30 days after the incident. Therefore, the images of the sidewalk condition in the photographs do not show the sidewalk’s condition 30 days before the incident, as required by MCL 691.1402a(2). Furthermore, the photographs alone fail to give rise to a reasonable inference that the defect had been present for at least 60 days. The photographs merely show the alleged defect from several different angles and indicate the size of the defect. The basis for the Court of Appeals’ finding of such an inference was the accumulated debris seen in the photographs. But that inference amounts merely to speculation, relying on the assumption that the debris, and thus the defect itself, could not have arisen in less than 60 days. Thus, even when viewed in the light most favorable to plaintiff, the photographs standing alone cannot permit the conclusion that the defect existed 30 days before the incident. The necessary inference that would connect the photographs to the sidewalk’s condition 60 days earlier becomes tenable only with additional evidence. Absent such evidence, one can imagine any number of scenarios in which the defect formed within 60 days of when the photographs were taken. Yet plaintiff has offered no evidentiary support of any kind for her assumptions that the defect existed for the necessary amount of time. For example, she has offered no affidavits from neighbors who viewed the sidewalk 30 days before the accident, nor did she introduce expert testimony demonstrating that the sidewalk discontinuity was of a type that usually forms or enlarges over a long period of time. Such additional evidence might have narrowed or closed the inferential gap between the photographs and the conclusions plaintiff and the Court of Appeals drew from them. Instead, plaintiffs attempt to prove the sidewalk’s past condition simply by proving its current condition fails, as more is needed to explain why the current condition is probative of the past condition. Cf. Beamon, 85 Mich App at 246 (“[P]laintiff merely proved that the defect existed at the moment of her fall. Absent additional evidence, it was not reasonable to infer that the defect was sufficiently long-standing and/or notorious in support of the jury verdict of constructive notice.”). For these reasons, we hold that for purposes of the highway exception, plaintiffs photographs of a sidewalk defect taken about 30 days after an accident alone do not create a genuine issue of material fact as to whether the sidewalk defect existed at least 30 days before the accident. Without more, a jury has no basis for concluding that the defect was present for the requisite period of time. Because plaintiff has provided photographs of the defect only as it existed about 30 days after her fall and has not explained why these photographs indicate the state of the sidewalk 60 days earlier, she cannot withstand summary disposition. We thus reverse the Court of Appeals judgment and reinstate the trial court’s dismissal of plaintiffs action. Young, C.J., and Markman, Zahra, McCormack, Viviano, Bernstein, and Larsen, JJ., concurred. Because we find summary disposition appropriate under MCR 2.116(C)(10), we decline to consider whether summary disposition is also appropriate under MCR 2.116(C)(7).
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Jackson Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court. We do not retain jurisdiction.
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Pursuant to MCR 7.305(H)(1), in lieu of granting the application for leave to appeal, we vacate the order of the Court of Appeals, and we remand this case to that court for reconsideration of the issues raised by the plaintiffs on the original record or, if filed, for consideration of a motion to expand the record. The panel erred in allowing the defendants to expand the record without first having moved to do so. MCR 7.210(A)(1). The application for leave to appeal as cross-appellants is denied, because we are not persuaded that the questions presented should now be reviewed by this Court. We do not retain jurisdiction.
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On March 9, 2016, the Court heard oral argument on the application for leave to appeal the January 29, 2015 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.305(H)(1). The Court of Appeals erred by interpreting the term “medical record” in MCL 600.2912b(5) and MCL 600.2912d(3), which are sections of the Revised Judicature Act, by reference to the definition of “medical record” in a section of the Medical Records Access Act that begins with the limitation “[a]s used in this act.” MCL 333.26263 (emphasis added). See Woodard v Custer, 476 Mich 545, 563 (2006). The Court of Appeals further erred by imposing an obligation not found in MCL 600.2912b(5) that required the defendants to “offer a timely explanation for why [documents not within the defendants’ control] were no longer available.” We therefore vacate those parts of the Court of Appeals judgment reaching these conclusions. However, in light of the fact that the Court of Appeals would have reached the same result had it correctly relied on the plain meaning of “medical record,” it is not necessary to reverse the result reached by the Court of Appeals. In all other respects, leave to appeal is denied, because we are not persuaded that the questions presented should be reviewed by this Court.
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The parties shall file supplemental briefs within 42 days of the date of this order addressing: (1) whether the defendant’s original sentence for first-degree criminal sexual conduct was rendered invalid because it did not include lifetime electronic monitoring, pursuant to MCL 750.520b(2)(d), i.e., whether MCL 750.520n requires that the defendant, who pled guilty to MCL 750.520b(l)(c), be sentenced to lifetime electronic monitoring, compare People v Brantley, 296 Mich App 546 (2012), with People v King, 297 Mich App 465 (2012); and (2) if so, whether the trial court was authorized to amend the defendant’s judgment of sentence on the court’s own initiative twenty months after the original sentencing, in the absence of a motion filed by any party. See MCR 6.429; MCR 6.435. The parties should not submit mere restatements of their application papers. We further order the St. Clair Circuit Court, in accordance with Administrative Order 2003-03, to determine whether the defendant is indigent and, if so, to appoint the State Appellate Defender Office to represent the defendant in this Court. The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Cass Circuit Court for consideration of the defendant’s issue regarding the assessment of court costs.
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Leave to appeal denied at 498 Mich 855.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Cass Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. We do not retain jurisdiction.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Kalamazoo Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. We do not retain jurisdiction.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand these cases to the Wayne Circuit Court to determine whether the court would have imposed materially different sentences under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied because we are not persuaded that the remaining question presented should be reviewed by this Court. We do not retain jurisdiction.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals, and we remand this case to the Saginaw Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the judgment of the Court of Appeals, and we remand this case to the Court of Appeals for reconsideration in light of Elher v Misra, 499 Mich 11 (2016).
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate footnote 1 of the Court of Appeals judgment, and we remand this case to the Wayne Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional restraint on its discretion, it may affirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional restraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction.
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Leave to appeal denied at 499 Mich 855.
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YOUNG, J. We granted leave to appeal in this case to reconcile plaintiffs constitutional authority to exercise “reasonable control” over its streets with the Michigan Public Service Commission’s (MPSC) broad regulatory control over public utilities. Consistent with our longstanding precedent, we hold that a municipality’s exercise of “reasonable control” over its streets cannot impinge on matters of statewide concern nor can a municipality regulate in a manner inconsistent with state law. In this case, the MPSC has promulgated uniform rules governing the relocation of utility wires underground. To the degree plaintiffs ordinance on this subject conflicts with the MPSC’s rules, the ordinance exceeds plaintiffs power to exercise “reasonable control” over its streets and is invalid. Furthermore, because the question of allocation of costs for the relocation of utility wires underground falls under the primary jurisdiction of the MPSC, that entity should be the first to consider this dispute. We reverse the judgment of the Court of Appeals and remand to the Wayne Circuit Court to enter an order granting summary disposition to defendant. The dismissal is without prejudice to plaintiffs right to seek a remedy before the MPSC. FACTS AND PROCEDURAL HISTORY In the fall of 1999, the City of Taylor (plaintiff) and the Michigan Department of Transportation planned for a major reconstruction project of a four-mile portion of Telegraph Road that intersects the city. The project called for major infrastructure improvements, including the underground relocation of all utility wires along Telegraph Road. Under the proposal, the Detroit Edison Company’s (defendant) utility poles along Telegraph Road would be removed and their wires relocated underground. In early 2000, officials from plaintiff and defendant met several times to discuss the project and its implementation. Defendant agreed to relocate the lines underground, but would not agree to bear the costs of that effort. When the parties’ negotiations failed, plaintiff enacted Taylor Ordinance 00-344, the “Telegraph Road Improvement and Underground Relocation of Overhead Lines Ordinance.” Section 3 of that ordinance requires all public utilities with lines or poles adjacent to Telegraph Road “to relocate underground all of their overhead lines and wires and remove all poles and related overhead facilities equipment at their sole cost and expense and at no cost or expense to the City.” After plaintiff enacted the ordinance, the parties continued to discuss the dispute, but could not come to an amicable resolution. Ultimately, plaintiff agreed to advance the cost of relocating the wires underground, but reserved its rights to enforce the ordinance against defendant and seek reimbursement. In June 2002, plaintiff filed a complaint for a declaratory judgment in circuit court, seeking a determination that defendant was obligated to pay the entire cost of relocating the wires under Taylor Ordinance 00-344. Defendant moved for summary disposition under MCR 2.116(C)(4), arguing that the MPSC rules required plaintiff to pay for the relocation, and that the MPSC had primary jurisdiction over this dispute. Plaintiff filed a cross-motion for summary disposition under MCR 2.116(0(10), arguing that the ordinance controlled. The circuit court granted summary disposition to plaintiff, holding that it was unnecessary to consider the issue of primary jurisdiction because the city’s ordinance was enforceable regardless of the MPSC’s interpretation of its rules. On appeal, the Court of Appeals affirmed in part the judgment of the circuit court in a published opinion per curiam. The Court held that the MPSC did not have primary jurisdiction because the question was one of law, and the courts could craft an answer that would promote uniformity without interfering with the MPSC’s ability to perform its regulatory duties. Then, relying on its governmental function/proprietary function test, first articulated in City of Pontiac v Consumers Power Co, the Court determined that plaintiff exercised a governmental function and properly required defendant to bear the entire cost of relocation. The Court also determined that state law did not preempt the city’s ordinance. This Court granted leave to appeal, specifically directing the parties to address the scope of a city’s power over utilities under its constitutional authority to exercise reasonable control over its streets; whether that constitutional authority permits a city to impose relocation costs on utilities under Const 1963, art 7, § 29, and how the city’s constitutionally authorized power to control its streets could be reconciled with the MPSC’s broad regulatory authority over utilities. STANDARD OF REVIEW This Court reviews the decision to grant or deny a motion for summary disposition de novo. Issues of constitutional and statutory construction are questions of law that are also reviewed de novo. ANALYSIS THE CITY’S CONSTITUTIONAL AUTHORITY Article 7 of the Constitution of 1963 enumerates the general authority and limits on the authority of local governments, such as counties, townships, cities, and villages. Subject to authority specifically granted in the Constitution, local governments derive their authority from the Legislature. We have held that “[local governments] have no inherent jurisdiction to make laws or adopt regulations of government; they are governments of enumerated powers, acting by a delegated authority; so that while the State legislature may exercise such powers of government coming within a proper designation of legislative power as are not expressly or impliedly prohibited, the local authorities can exercise those only which are expressly or impliedly conferred, and subject to such regulations or restrictions as are annexed to the grant.”[ ] Notwithstanding that local governments obtain their authority from the Legislature, the Constitution reserves to local governments certain authorities. In this case, plaintiff relies on the authority to exercise reasonable control over its streets, which is specifically reserved in art 7, § 29, which states: No person, partnership, association or corporation, public or private, operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any county, township, city or village for wires, poles, pipes, tracks, conduits or other utility facilities, without the consent of the duly constituted authority of the county, township, city or village; or to transact local business therein without first obtaining a franchise from the township, city or village. Except as otherwise provided in this constitution the right of all counties, townships, cities and villages to the reasonable control of their highways, streets, alleys and public places is hereby reserved to such local units of government.[ ] Thus, the authority reserved to local units of government to exercise reasonable control over the enumerated subject areas is explicitly made subject to the other provisions of the Constitution. One such provision is art 7, § 22, which empowers cities and villages “to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law.” In People v McGraw, this Court interpreted the similarly worded “reasonable control” predecessor of art 7, § 29 found in the 1908 Constitution, along with the predecessor of art 7, § 22, the provision regarding municipal powers. McGraw involved traffic ordinances enacted by the City of Detroit that conflicted with the general state traffic laws. This Court held that “[t]aking the [constitutional] sections together, they should be so construed as to give the power to municipalities to pass such ordinances and regulations with reference to their highways and bridges as are not inconsistent with the general State law.” Thus, McGraw permits a city to exercise “reasonable control” to regulate matters of local concern, but only in a manner and to the degree that the regulation does not conflict with state law. In 1939, the Legislature created the MPSC, giving it broad regulatory authority over public utilities. Under its enabling statute, [t]he public service commission is vested with complete power and jurisdiction to regulate all public utilities in the state except... as otherwise restricted by law. The public service commission is vested with the power and jurisdiction to regulate all rates, fares, fees, charges, services, rules, conditions of service, and all other matters pertaining to the formation, operation, or direction of public utilities. The public service commission is further granted the power and jurisdiction to hear and pass upon all matter pertaining to, necessary, or incident to the regulation of public utilities ... .[ ] In 1970, the MPSC promulgated rules governing the underground placement of new and existing utility wires. Specifically, the MPSC promulgated Rule 460.516, governing the “ [replacement of existing overhead lines,” and Rule 460.517, concerning “[underground facilities for convenience of utilities or where required by ordinances.” These rules appear to cover the same subject matter as Taylor Ordinance 00-344, and in a manner that possibly creates a conflict between the MPSC’s rules and the plaintiffs ordinance. Because the MPSC has not construed how its rules governing the allocation of costs for the underground relocation of utility wires apply in this circumstance, and because provisions of the ordinance appear to fall within the MPSC’s regulatory purview, the MPSC, rather than a court, should assess whether there is an actual conflict. As discussed later in this opinion, the doctrine of primary jurisdiction requires us to defer to the judgment of the MPSC on this question. If the ordinance conflicts with MPSC rules, then under art 7, §§ 22 and 29, and McGraw, Taylor Ordinance 00-344 must yield. The cases from this Court relied on by the Court of Appeals and plaintiff are readily distinguishable from the present case. As an initial matter, all the cases from this Court holding that a municipality has the power to force a utility to relocate its facilities at its own expense were decided before the MPSC’s promulgation of rules regarding the underground relocation of wires. Thus, there was no state law for the municipal action to conflict with. To the extent these cases conflict with the MPSC’s interpretation of its rules, however, they are abrogated. Moreover, no case cited is factually analogous. For example, the Court of Appeals cited this Court’s opinion in Detroit Edison Co v Detroit for the proposition that this Court “ruled that the city of Detroit could order the utility to move its poles at its own expense under the municipality’s constitutional right to control public places.” In Detroit Edison, the utility erected poles on an easement granted to the city for public utilities. The utility claimed exclusive control over the easement because the grantor dedicated it for utilities rather than public use. This Court held that the utility easement fell under the “public places” language of article 8, § 28 of the 1908 Constitution. However, the Court did not rely on that constitutional provision in holding that the city could require the utility to pay to move the poles. Rather, the Court relied on the utility’s concession that it would be liable if the easement was determined to be a “public place.” Therefore, Detroit Edison does not support plaintiffs argument or the holding of the Court of Appeals. As noted, the precedent that governs the resolution of this case is McGrow. Because Taylor Ordinance 00-344 may conflict with MPSC rules, it may not be a valid exercise of plaintiffs reasonable control over its streets. Therefore, if the portion of the ordinance that requires the utility to bear the entire cost of relocation conflicts with the MPSC rules on the subject, that portion of the ordinance is invalid. We reverse the Court of Appeals judgment that held to the contrary. THE COURT OF APPEALS TEST In reaching its holding, the Court of Appeals did not focus on the question of “reasonable control.” Instead, the Court of Appeals relied on a “general rule that relocation costs may be imposed on the utility if necessitated by the municipality’s discharge of a governmental function, while the expenses must be borne by the municipality if necessitated by its discharge of a proprietary function.” This “general rule” appears to emanate from City of Pontiac v Consumers Power Co, and is derived from McQuillin, Municipal Corporations, § 34.74(a), p 184. While many Michigan Court of Appeals cases have applied the “general rule,” there is no support for it in either our statutes or Constitution. The proper “general rule,” which has been inexplicably ignored by the Court of Appeals, was articulated by this Court in McGraw nearly 100 years ago. Today, we reaffirm the holding and standard articulated in McGraw as being consistent with the modern constitutional provisions of the analogues of these provisions it construed: A municipality may regulate “highways, streets, alleys, and public places” to the degree such regulations are consistent with state law. We overrule the Court of Appeals cases that apply the proprietary function/governmental function test in this area of the law. primary jurisdiction Having decided that plaintiffs effort to compel defendant’s compliance by decree may contravene the authority of the MPSC, we next address whether the MPSC has primary jurisdiction over the dispute about the allocation of the costs of relocating the wires under ground. There is no fixed formula, but there are several factors to consider in determining whether an administrative agency has primary jurisdiction over a dispute: (1) whether the matter falls within the agency’s specialized knowledge, (2) whether the court would interfere with the uniform resolution of similar issues, and (3) whether the court would upset the regulatory scheme of the agency. The Court of Appeals analyzed these three factors and determined that the MPSC did not have primary jurisdiction over the dispute. We disagree. The fundamental error in the Court of Appeals analysis is that the court applied the Travelers factors to the question of the city’s constitutional authority to exercise reasonable control over its streets. We agree that the MPSC has absolutely no jurisdiction to consider the scope of plaintiffs constitutional authority under art 7, § 29. As discussed earlier in this opinion, McGraw articulates the proper standard for resolution of the constitutional issue. Once the constitutional issue has been resolved, the Travelers factors are applied to determine whether the MPSC has primary jurisdiction over the issue of how to allocate the costs of relocating the lines underground. Applying the first factor, the appropriate method for allocating the cost of moving the facilities of utilities is clearly within the expertise of the MPSC. Additionally, the MPSC is in the best position to interpret and apply its own rules on this subject. Regarding the second factor, the MPSC arguably has devised a uniform system for removing overhead lines and allocating the associated costs. Because the expense incurred in complying with plaintiffs demands may potentially affect a wide range of ratepayers, most of whom do not reside in the City of Taylor, this is an area of law where uniformity is critical. Finally, under the third factor, the decision of the City of Taylor appears directly to implicate the rate-making authority of the MPSC and defendant’s tariffs created under that authority. Given the MPSC’s broad authority to regulate public utilities, and its promulgation of rules pertaining to the relocation of overhead lines underground, the circuit court’s resolution of this case could adversely affect the MPSC’s ability to carry out its regulatory responsibilities. Because application of the Travelers factors overwhelmingly favors the MPSC, that agency has primary jurisdiction to determine the proper allocation of costs associated with relocating the wires underground. Accordingly, the circuit court should have granted defendant’s motion to dismiss and required plaintiff to seek a remedy from the MPSC. CONCLUSION Today, we reaffirm this Court’s decision in McGraw. Under Const 1963, art 7, §§ 22 and 29, a local unit of government may exercise reasonable control over its “highways, streets, alleys, and public places” as long as that regulation does not conflict with state law. Here, because plaintiff’s ordinance may be incongruent with the MPSC’s regulations governing underground relocation of wires, and the regulation of defendant utility, the ordinance may be invalid. MCL 460.6 vests the MPSC with broad authority to regulate public utilities, and the MPSC has promulgated rules on this subject. Accordingly, we conclude that the MPSC has primary jurisdiction over the issue of cost allocation. We reverse the judgment of the Court of Appeals and remand to the Wayne Circuit Court to grant summary disposition to defendant. Plaintiff may seek a remedy concerning the costs of relocating defendant’s wires underground from the MPSC. Taylor, C.J., and Weaver, Corrigan, and Markman, JJ., concurred with YOUNG, J. CAVANAGH, J., concurred in the result only. Taylor Ordinance 00-344. 263 Mich App 551; 689 NW2d 482 (2004). 101 Mich App 450; 300 NW2d 594 (1980). 474 Mich 877 (2005). Spiek v Dep’t of Transportation, 456 Mich 331; 572 NW2d 201 (1998). Wayne Co v Hathcock, 471 Mich 445; 684 NW2d 765 (2004). Const 1963, art 7. Const 1963, art 7, §§ 1, 17, and 21. City of Kalamazoo v Titus, 208 Mich 252, 262; 175 NW 480 (1919), quoting 1 Cooley, Constitutional Limitations (7th ed), pp 163, 264 et seq. Const 1963, art 7, § 29 (emphasis added). Const 1963, art 7, § 22 (emphasis added). 184 Mich 233; 150 NW 836 (1915), interpreting Const 1908, art 8, §§ 21 and 28. Const 1908, art 8, § 28 provided: No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks, or conduits, without the consent of the duly constituted authorities of such city, village or township; nor to transact a local business therein without first obtaining a franchise therefor from such city, village or township. The right of all cities, villages and townships to the reasonable control of then-streets, alleys and public places is hereby reserved to such cities, villages and townships. The differences between this section and Const 1963, art 7, § 29 are relatively minor. In addition to stylistic changes, counties are added to the list of municipalities; the list of items that public places can be used for now includes the general “other utility facilities”; and the reservation of power to municipalities is explicitly subject to other provisions of the Constitution. Const 1908, art 8, § 21 provided: 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. The differences between this section and Const 1963, art 7, § 22 are also relatively minor. Besides the stylistic changes, the section merely reaffirms that a city’s or a village’s powers are subject to the general laws of the state. McGraw, supra at 238. MCL 460.6 (emphasis added). 1999 AC, R 460.511 et seq. See titles of 1999 AC, R 460.516 and 460.517 See City of Monroe v Postal Tel Co, 195 Mich 467; 162 NW 76 (1917), Detroit Edison Co v Detroit, 332 Mich 348; 51 NW2d 245 (1952), and Detroit v Michigan Bell Tel Co, 374 Mich 543; 132 NW2d 660 (1965). 332 Mich 348; 51 NW2d 245 (1952). 263 Mich App at 558, citing Detroit Edison. Detroit Edison, supra at 354-355. The dissent has created a doctrine of “perpetual concession” and would bind Edison to a concession it made 50 years ago in unrelated litigation. Merely stating the dissent’s position shows why it has never had any basis in our jurisprudence. The case relied on by the dissent, City of Monroe v Postal Tel Co, supra, also does not support the Court of Appeals conclusion. Monroe involved a federal statute, the Post Road Act of 1886, which gave telegraph companies the right to construct telegraph lines along any United States post road. The issue before the Court was whether the federal statute limited the state’s ability to exercise control over the lines. This Court determined, consistently with other jurisdictions, that the federal statute was permissive and subject to the states’ police power. Not surprisingly, Monroe did not mention or utilize Const 1908, art 8, § 28 or McGrow in its resolution of the case. 263 Mich App at 557-558. 101 Mich App 450; 300 NW2d 594 (1980). Pontiac, supra at 453-454, was cited in Detroit Edison Co v Detroit, 180 Mich App 145; 446 NW2d 615 (1989) (expansion of Cobo Hall), and Detroit Edison Co v Southeastern Michigan Transportation Auth, 161 Mich App 28; 410 NW2d 295 (1987) (public transit system); see also Michigan Bell Tel Co v Detroit, 106 Mich App 690; 308 NW2d 608 (1981) (sewer treatment facility). See n 26, supra. The dissent discusses preemption at length. We cannot discern why. Our opinion does not mention preemption, much less rely on the doctrine, and it plays no role in our disposition of this case. Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 198-200; 631 NW2d 733 (2001); see also Rinaldo’s Constr Co v Michigan Bell Tel Co, 454 Mich 65, 71-72; 559 NW2d 647 (1997). As stated in Wikman v City of Novi, 413 Mich 617, 646-647; 322 NW2d 103 (1982), “Generally speaking, an agency exercising quasi-judicial power does not undertake the determination of constitutional questions or possess the power to hold statutes unconstitutional.”
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PER CURIAM. We granted leave to appeal to consider whether the Wayne Circuit Court abused its discretion in dismissing this case on the basis of the doctrine of forum non conveniens, where plaintiffs are residents and citizens of a foreign country and the lawsuit alleges product liability arising from a motor vehicle accident that occurred outside the United States. The Court of Appeals held that the circuit court abused its discretion in dismissing the case because Wayne County is not a “seriously inconvenient” forum. Because we conclude that the circuit court did not abuse its discretion in dismissing the case, we reverse the judgment of the Court of Appeals and reinstate the circuit court’s order dismissing the case. I. FACTS Plaintiffs, who are residents and citizens of Croatia, were involved in a motor vehicle accident in Croatia. It is alleged that the Jeep Grand Cherokee in which they were seated somehow shifted from park into reverse and went off the roadway and into a ravine. One of the passengers died and the driver and other passengers were injured. The vehicle was designed and manufactured in Michigan. The vehicle was purchased in Italy and maintained and serviced in Italy and Croatia. Plaintiffs argue that the transmission, designed and manufactured in Japan, spontaneously slipped. Plaintiffs filed their lawsuit in the Wayne Circuit Court. Defendant moved for summary disposition on the basis of forum non conveniens. The circuit court granted the motion. Plaintiffs appealed and the Court of Appeals reversed. We granted defendant’s application for leave to appeal and asked the parties to address: (1) whether the public interest factors of the forum non conveniens doctrine set forth in Cray v Gen Motors Corp, 389 Mich 382, 396 [207 NW2d 393] (1973), should be revised or modified; and (2) whether, even if another more appropriate forum exists, a Michigan court may not resist jurisdiction unless its own forum is “seriously inconvenient.” See Robey v Ford Motor Co, 155 Mich App 643, 645 (1986).[ ] II. STANDARD OF REVIEW This Court reviews a trial court’s decision to grant or deny a motion to dismiss a case on the basis of the doctrine of forum non conveniens for an abuse of discretion. Cray, supra at 397. An abuse of discretion occurs when the decision results in an outcome falling outside the principled range of outcomes. Herald Co v Eastern Michigan Univ Bd of Regents, 475 Mich 463; 719 NW2d 19 (2006); Novi v Robert Adell Children’s Funded Trust, 473 Mich 242, 254; 701 NW2d 144 (2005). III. ANALYSIS "Forum non conveniens” is defined as the “discretionary power of court to decline jurisdiction when convenience of parties and ends of justice would be better served if action were brought and tried in another forum.” Black’s Law Dictionary (6th ed). The doctrine is not derived from statutes; rather, it is a common-law doctrine created by courts. The United States Supreme Court adopted the forum non conveniens doctrine in 1947. Gulf Oil Corp v Gilbert, 330 US 501, 508-509; 67 S Ct 839; 91 L Ed 1055 (1947). This Court first recognized this doctrine in 1973 in Cray. In Cray, supra at 395, we held that a court may refuse to hear a case on the basis of the doctrine of forum non conveniens even though it otherwise may have jurisdiction. “The principle of forum non conveniens establishes the right of a court to resist imposition upon its jurisdiction although such jurisdiction could properly be invoked.” Id. The application of forum non conveniens “lie[s] within the discretion of the trial judge.” Id. A plaintiffs selection of a forum is ordinarily accorded deference. Anderson v Great Lakes Dredge & Dock Co, 411 Mich 619, 628-629; 309 NW2d 539 (1981). Although “a court can and must consider the residence of the parties in deciding whether to decline jurisdiction[,] . . . a party’s Michigan residence does not automatically render the doctrine of forum non conveniens inapplicable.” Russell v Chrysler Corp, 443 Mich 617, 624; 505 NW2d 263 (1993). “ ‘[T]he ultimate inquiry is where trial will best serve the convenience of the parties [and the ends] of justice.’ ” Cray, supra at 391, quoting Koster v (American) Lumbermens Mut Cas Co, 330 US 518, 527; 67 S Ct 828; 91 L Ed 1067 (1947). In Cray we held that the following factors should be considered in deciding a motion to dismiss on the basis of forum non conveniens: 1. The private interest of the litigant. a. Availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses; b. Ease of access to sources of proof; c. Distance from the situs of the accident or incident which gave rise to the litigation; d. Enforcibility [sic] of any judgment obtained; e. Possible harassment of either party; f. Other practical problems which contribute to the ease, expense and expedition of the trial; g. Possibility of viewing the premises. 2. Matters of public interest. a. Administrative difficulties which may arise in an area which may not be present in the area of origin; b. Consideration of the state law which must govern the case; c. People who are concerned by the proceeding. 3. Reasonable promptness in raising the plea of forum non conveniens. [Cray, supra at 396.] In the instant case, the trial court dismissed on the basis of forum non conveniens. The trial court determined that Croatia was a more convenient forum because this case involves a vehicular accident in Croatia in which Croatian citizens and residents were injured, where Croatian law will likely have to be applied, and the alleged cause of the accident was a transmission manufactured and designed in Japan. This conclusion does not fall outside “the principled range of outcomes,” Novi, supra at 254, and was therefore not an abuse of discretion. A review of the Cray factors reveals why the trial court’s decision to dismiss was within “the principled range of outcomes.” Id. We begin by noting that the requirement of reasonable promptness in bringing a plea of forum non conveniens has indisputably been satisfied in this case, because defendant moved for dismissal based on the doctrine of forum non conveniens in a timely manner. With that procedural predicate addressed, we now turn to the private and public interest factors that are in considerable dispute. The first factor concerns the “private interest of the litigant.” Cray, supra at 396. Subfactor 1(a) pertains to the “[a]vailability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses.” Id. It is undisputed that Michigan courts lack powers of compulsory process over witnesses in Croatia. If trial were held in Michigan, defendant would be forced to use “letters rogatory” in order to obtain testimony from any foreign witnesses who could not voluntarily travel to Michigan for trial.* ** The use of letters rogatory is acknowledged to be a very time consuming and cumbersome process. However, this subfactor cuts the other way as well because it is also undisputed that Croatian courts lack powers of compulsory process over witnesses in Michigan. Further, even if all the witnesses are willing to travel in order to testify, the cost of obtaining the attendance of these witnesses will be high regardless of whether this case is tried in Croatia or in Michigan; obviously, if this case is tried in Croatia, all the Michigan witnesses will have to travel to Croatia to testify and if this case is tried in Michigan, all the Croatian witnesses will have to travel to Michigan to testify. Therefore, subfactor 1(a) does not clearly favor one forum over the other where the difficulties implicit in the travel arrangements would be identical. Subfactor 1(b) concerns the “[e]ase of access to sources of proof.” Cray, supra at 396. The trial court concluded that, because the accident occurred in Croatia, a Croatian court will have easier access to sources of proof and it will be easier for defendant to obtain documents relating to the accident in Croatia. Although all the documentary evidence pertaining to the choice of transmission for the vehicle is in Michigan, it would be easier for plaintiffs to obtain these Michigan documents if the trial were held in Croatia than it would be for defendant to obtain the Croatian documents if trial were held in Michigan because MCR 2.305 authorizes subpoenas for document production in connection with an action pending in another country and we are aware of no similar Croatian provision, nor have plaintiffs cited any. Therefore, subfactor 1(b) favors the Croatian forum over the Michigan forum. Subfactor 1(c) concerns the “[distance from the situs of the accident or incident which gave rise to the litigation.” Cray, supra at 396. Michigan is a great distance from the situs of the accident, i.e., Croatia. However, plaintiffs argue that this is not controlling because the specific incident that gave rise to this litigation was defendant’s choice of transmission, which occurred in Michigan. This subfactor does not favor one forum over the other. Subfactor 1(d) concerns the “[ejnforcibility [sic] of any judgment obtained.” Cray, supra at 396. It is uncontested that a judgment in this case would be enforceable whether rendered by a Michigan court or a Croatian court. Therefore, subfactor 1(d) does not favor one forum over the other. Subfactor 1(e) concerns the “[p]ossible harassment of either party.” Id. Neither party has argued harassment. Therefore, subfactor 1(e) does not favor one forum over the other. Subfactor 1(f) concerns “[o]ther practical problems which contribute to the ease, expense and expedition of the trial.” Id. If this case is tried in Michigan, defendant will not be able to implead Croatian persons or entities that may be responsible for plaintiffs’ injuries. As the United States Supreme Court has held, “the problems posed by the inability to implead potential third-party defendants” is “sufficient to support dismissal on grounds of forum non conveniens.” Piper Aircraft Co v Reyno, 454 US 235, 259; 102 S Ct 252; 70 L Ed 2d 419 (1981). Therefore, subfactor 1(f) favors the Croatian forum over the Michigan forum. Subfactor 1(g) concerns the “[possibility of viewing the premises.” Cray, supra at 396. If this case is tried in Michigan, it will not be possible for the trier of fact to view the scene of the accident because the accident occurred in Croatia. Therefore, subfactor 1(g) favors the Croatian forum over the Michigan forum. In sum, three of the “private interest” subfactors favor the Croatian forum over the Michigan forum, and four of these subfactors do not favor one forum over the other. None of the “private interest” subfactors favors the Michigan forum over the Croatian forum. Therefore, “[t]he private interest^] of the litigant,” Cray, supra at 396, favor the Croatian forum over the Michigan forum. The second broad Cray factor pertains to “[m]atters of public interest.” Id. Subfactor 2(a) concerns “[a]dministrative difficulties which may arise in an area which may not be present in the area of origin.” Id. As the United States Supreme Court has explained, “[ajdministrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin.” Gilbert, supra at 508. If every automotive design defect case against Michigan-based automobile manufacturers must be heard in Wayne County if a foreign plaintiff so desires, there will certainly be increased congestion in an already congested local court system. It can hardly be argued that Croatia would face increased court congestion. Unlike Michigan, Croatia is not a recognized center for automotive design, engineering, and manufacturing, or to our knowledge, a center for litigation concerning automotive design defects. Therefore, subfactor 2(a) generally favors the Croatian forum over the Michigan forum. Subfactor 2(b) concerns “ [consideration of the state law which must govern the case.” Cray, supra at 396. If this case is tried in Wayne County, the Wayne Circuit Court will most likely have to apply Croatian law. In order to determine whose laws apply, courts look to see which jurisdiction has a greater interest in the case. Sutherland v Kennington Truck Service, Ltd, 454 Mich 274, 286; 562 NW2d 466 (1997). Croatia appears to have a greater interest in this case than does Michigan because it involves residents and citizens of Croatia who were injured in an accident in Croatia. Therefore, Croatian law would most likely apply in this case. See Farrell v Ford Motor Co, 199 Mich App 81; 501 NW2d 567 (1993) (holding that North Carolina law applies in a defective automobile action involving a North Carolina resident, a North Carolina accident, and a vehicle purchased in North Carolina). As the United States Supreme Court has explained, “[tjhere is an appropri ateness ... in having the trial... in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.” Gilbert, supra at 509. Accordingly, “the need to apply foreign law favors dismissal.” Piper, supra at 260 n 29. Therefore, subfactor 2(b) favors the Croatian forum over the Michigan forum. Subfactor 2(c) concerns “[p]eople who are concerned by the proceeding.” Cray, supra at 396. The people of Croatia obviously are concerned by this proceeding given that several Croatian citizens and residents were injured and one was killed in an accident that occurred in that country. As the United States Supreme Court has explained, “[t]here is a local interest in having localized controversies decided at home.” Gilbert, supra at 509. The “localized controversy” involved in this case concerns whether defendant is liable for injuries suffered by Croatian citizens and residents in Croatia. Croatia obviously has a considerable “local interest” in determining the redress available to its citizens and residents who are injured in Croatia. That is, Croatia has a “local interest” in having this “localized controversy” decided by its own rules and procedures. On the other hand, there is no denying that Michigan citizens have an interest in products-liability lawsuits filed against Michigan manufacturers. On the whole, however, for the reasons we discussed concerning subfactor 2(b), we conclude that Croatia’s interest is greater than Michigan’s interest. Therefore, subfactor 2(c) favors a Croatian forum. In sum, the three Cray “public interest” subfactors favor the Croatian forum over the Michigan forum. None of them favors a Michigan forum. Thus, the “[m]atters of public interest,” Cray, supra at 396, favor the Croation forum over the Michigan forum. Therefore, an analysis of both the “private interest” and “public interest” factors of Cray demonstrates that the trial court’s decision that Croatia is the most appropriate forum for this case was within the principled range of outcomes. In Cray, this Court held that the factors listed in its 1973 opinion were not the only factors that could ever be considered. Id. at 395. As we explained, “ ‘[w]isely it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy’ rather, “ ‘[t]he doctrine leaves much to the discretion of the court to which the plaintiff resorts ....’” Cray, supra at 395, quoting Gilbert, supra at 508. In response to our invitation to brief whether the Cray public interest factors should be revised or modified, defendant argues that we should explicitly follow the United States Supreme Court’s lead from Piper, supra at 257, in stating that a foreign plaintiffs choice of forum in entitled to “less deference” than would apply to a domestic plaintiff. In Piper the United States Supreme Court expressed its concern regarding allowing foreign plaintiffs to sue American businesses and manufacturers in America on the basis that American law is more favorable to plaintiffs as a class than is foreign law. Piper, supra at 252. The Court explained, “American courts, which are already extremely attractive to foreign plaintiffs, would become even more attractive [if dismissal was barred whenever the law in the alternative forum were less favorable to the plaintiff].[ ] The flow of litigation into the United States would increase and further congest already crowded courts.” Id. As the United States Supreme Court has held, “dismissal may be warranted where a plaintiff chooses a particular forum, not because it is convenient, but solely in order to . .. take advantage of favorable law.” Piper, supra at 249 n 15. In Piper, supra at 256, the United States Supreme Court held that in contrast to the presumption in favor of a domestic plaintiffs forum choice, “a foreign plaintiffs choice [of forum] deserves less deference.” Id. at 256. This makes sense because, as the United States Supreme Court explained, when a plaintiff chooses to bring a lawsuit in another country thousands of miles away from home and where the underlying accident occurred, there is no basis to presume that this faraway forum will be more convenient to the parties and to the court, and, thus, there is no basis to defer to the plaintiffs choice in forum. Id. Thus, we modify our statement in Anderson, supra, that a plaintiffs selection of a forum is ordinarily accorded deference to indicate that a foreign plaintiffs choice of forum is entitled to less deference than that accorded to a domestic plaintiffs choice of forum. In the instant case, plaintiffs are residents and citizens of Croatia who were injured in an accident in Croatia and plaintiffs have chosen to file their lawsuit in Michigan. Given that plaintiffs live in Croatia and that the underlying accident occurred in Croatia, there is no basis to presume that plaintiffs chose to file this lawsuit in Michigan out of convenience. Further, while there is no direct evidence that the primary reason why plaintiffs chose to file this lawsuit in Michigan was to take advantage of Michigan’s favorable laws and to avoid Croatia’s less favorable laws, no other reasonable explanation has been presented. It is important to consider the foreign jurisdiction’s interest in the case and the effect that a Michigan court’s resolution of the case will have in that jurisdiction. In this case, a Michigan court is being asked to apply Croatian law to Croatian plaintiffs in a lawsuit pertaining to an accident that occurred in Croatia. Certainly, a Croatian court would be better equipped at handling a matter of this sort than a Michigan court. We find it appropriate, in light of the continuing globalization of our economy, to follow Piper and indicate that a foreign plaintiffs choice of venue is entitled to less deference than a domestic plaintiffs choice of venue. Although a majority of the Cray private and public interest factors supports the trial court’s decision that Croatia is the more appropriate forum to hear this case, the Court of Appeals held that the trial court abused its discretion in so concluding. More specifically, the Court of Appeals held that the trial court abused its discretion in dismissing this action on the basis of the forum non conveniens doctrine because Michigan is not a “seriously inconvenient” forum, relying upon Robey v Ford Motor Co, 155 Mich App 643, 645; 400 NW2d 610 (1986). In Robey, supra at 645, the Court of Appeals held that “the court... may not decline jurisdiction unless its own forum is seriously inconvenient.” The Court of Appeals in the instant case relied heavily on Robey’s “seriously inconvenient” requirement, stating: [T]he trial court did not make a finding that Wayne County was a seriously inconvenient forum. Even if another more appropriate forum exists, the court still may not resist jurisdiction unless its own forum is seriously inconvenient.... Without a determination that Wayne County is a seriously inconvenient forum, the trial court could not resist jurisdiction. It therefore abused its discretion in granting the dismissal. [Slip op at 2-3.] The “seriously inconvenient” language appears traceable to the Restatement Conflict of Laws, 2d, which was cited in footnote 2 of the Cray decision. 389 Mich 394 n 2. While this language from the Restatement was cited in a footnote of Cray, this “seriously inconvenient” language was not part of the test adopted in Cray and in subsequent forum non conveniens decisions from this Court we did not cite or utilize a “seriously inconvenient” test. See, e.g., Anderson v Great Lakes Dredge & Dock Co, supra, and Russell v Chrysler Corp, supra. Indeed, imposing a “seriously inconvenient” requirement is inconsistent with this Court’s holding, in Cray, supra at 396, that it is “within the discretion of the trial judge to decline jurisdiction in such cases as the convenience of the parties and the ends of justice dictate.” Therefore, we reject the “seriously inconvenient” standard and overrule Robey, supra, to the extent that it held that a court cannot decline jurisdiction unless the exercise of such jurisdiction would be “seriously inconvenient.” Because there is no requirement that a trial court can only dismiss a case on the basis of the forum non conveniens doctrine if the forum is “seriously inconvenient,” the Court of Appeals erred in concluding that the trial court abused its discretion in dismissing this case on the basis of the forum non conveniens doctrine without concluding that the forum is “seriously inconvenient.” Finally, we note the similarities this case has with Piper, supra. In Piper, the plaintiffs were residents of Scotland who were involved in an airplane crash in Scotland. The plaintiffs sued a company that manufactured the airplane in Pennsylvania and a company that manufactured the airplane’s propellers in Ohio. The suit was brought in the United States District Court for the Central District of California, but was transferred to the United States District Court for the Central District of Pennsylvania. The federal district court dismissed the suit on the basis of the forum non conveniens doctrine and the United States Court of Appeals for the Third Circuit reversed. The United States Supreme Court reversed, concluding that the district court did not abuse its discretion in concluding that Scotland was the appropriate forum. Just as the district court in Piper, supra, did not abuse its discre tion in dismissing the action involving Scottish residents and a Scottish accident on the basis of the forum non conveniens doctrine, the trial court in this case did not abuse its discretion in dismissing this action involving Croatian residents and a Croatian accident on the basis of the forum non conveniens doctrine. “The burden on our courts and upon the defendant’s ability to prepare a defense greatly outweighs the remote interest the plaintiff has shown in behalf of conducting this trial in Michigan.” Anderson, supra at 631. IV RESPONSE TO THE DISSENT The dissent pays lip service to the abuse of discretion standard, but does not apply it. There are ten subfactors to be considered in evaluating a motion to dismiss on the basis of forum non conveniens. According to the dissent, five of the seven private factors are a draw, i.e., do not favor one forum over the other, and one favors Croatia as a forum and one favors Michigan. (But, as noted in footnote 9, the one that Justice KELLY says favors Michigan is a conclusion that even plaintiffs do not claim.) With reference to the public interest factors, the dissent finds that two are a draw and one favors Michigan. Given that a foreign plaintiffs choice of forum deserves less deference, even using Justice Kelly’s analysis of the Cray factors, one would be hard-pressed to conclude that a trial court’s conclusion, whichever way it would have gone, was not within the principled range of outcomes. Justice KELLY asserts that the trial court abused its discretion, citing language from Gulf Oil Corp, supra, to the effect that unless the balance is strongly in favor of the defendant the plaintiffs choice of forum should rarely be disturbed. 330 US 508. But, “ ‘the ultimate inquiry is where trial will best serve the convenience of the parties and the end of justice.’ ” Cray, supra at 391 (citation omitted). The trial court’s conclusion that a Croatian forum will best serve the convenience of the parties and the end of justice was not an abuse of discretion. V CONCLUSION Because we conclude that the Wayne Circuit Court did not abuse its discretion in dismissing this case on the basis of the forum non conveniens doctrine, we reverse the judgment of the Court of Appeals and reinstate the circuit court’s order dismissing the case. We also take this opportunity to hold that a trial court should afford a foreign plaintiffs choice of forum less deference than it would accord a domestic plaintiff. Taylor, C.J., and Weaver, Corrigan, Young, and Markman, JJ, concurred. Unpublished opinion per curiam, issued December 14, 2004 (Docket No. 247781). 472 Mich 924, 925 (2005). Const 1963, art 3, § 7 provides: The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed. As noted in Placek v Sterling Hts, 405 Mich 638, 656-657; 275 NW2d 511 (1979), this Court may change the common law through its decisions. Superseded by statute on other grounds, as explained in American Dredging Co v Miller, 510 US 443, 449 n 2; 114 S Ct 981; 127 L Ed 2d 285 (1994). “[The place] of corporate domicile... might be entitled to little consideration under the doctrine of forum, non conveniens, which resists formalization and looks to the realities that make for doing justice.” Koster v (American) Lumbermens Mut Cas Co, 330 US 518, 528; 67 S Ct 828; 91 L Ed 1067 (1947). As the United States Supreme Court has explained, “[T]o fix the place of trial at a point where litigants cannot compel personal attendance [of witnesses] and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants.” Gulf Oil Corp, supra at 511. See the United States Department of State website at <http://travel.state.gov/law/info/judicial/judicial_695.html> (accessed April 26, 2006). Illusorio v Illusorio-Bildner, 103 F Supp 2d 672, 677 (SD NY, 2000); United States Department of State website at <http:// travel.state.gov/law/info/judicial/judicial683.html> (accessed April 26, 2006). Justice Kelly argues in her dissent that the harassment factor favors Michigan as a forum. We disagree. Indeed, even after the Court of Appeals concluded that this factor favored Michigan as a forum, plaintiffs state as follows in their brief: “There is no cause for accusation of ‘harassment of either party’ herein.” (Plaintiffs brief, p 15). Thus, with reference to this factor, Justice Kelly is advancing an argument the plaintiffs do not even make. Justice Kelly maintains, on the basis of statements by foreign witnesses that they are willing to travel to Michigan to testify, that defendants would have less trouble bringing reluctant Croatian witnesses to testify in Michigan than plaintiffs would have in bringing reluctant defense witnesses to Croatia. This belief, however, is merely speculative and without force. In weighing this factor, a trial court could not rely on the purported intention of foreign witnesses because, as Justice Kelly concedes, a trial court in Michigan cannot compel foreign witnesses to appear. Therefore, Justice Kelly is incorrect that this subfactor favors Wayne County as the proper forum. The United States Supreme Court explained that the following factors make the United States “extremely attractive to foreign plaintiffs”: First, all but 6 of the 50 American States — Delaware, Massachusetts, Michigan, North Carolina, Virginia, and Wyoming — offer strict liability. 1 CCH Prod. Liability Rep. § 4016 (1981). Rules roughly equivalent to American strict liability are effective in France, Belgium, and Luxembourg. West Germany and Japan have a strict liability statute for pharmaceuticals. However, strict liability remains primarily an American innovation. Second, the tort plaintiff may choose, at least potentially, from among 50 jurisdictions if he decides to file suit in the United States. Each of these jurisdictions applies its own set of malleable choice-of-law rules. Third, jury trials are almost always available in the United States, while they are never provided in civil law jurisdictions. G. Gloss, Comparative Law 12 (1979); J. Merryman, The Civil Law Tradition 121 (1969). Even in the United Kingdom, most civil actions are not tried before a jury. 1 G. Keeton, The United Kingdom: The Development of its Laws and Constitutions 309 (1955). Fourth, unlike most foreign jurisdictions, American courts allow contingent attorney’s fees, and do not tax losing parties with their opponents’ attorney’s fees. R. Schlesinger, Comparative Law: Cases, Text, Materials 275-277 (3d ed. 1970); Orban, Product Liability: A Comparative Legal Restatement — Foreign National Law and the EEC Directive, 8 Ga. J. Int’l & Comp. L. 342, 393 (1978). Fifth, discovery is more extensive in American than in foreign courts. Schlesinger, supra, at 307, 310, and n. 33. [Piper, supra at 252 n 18.] The action, which was originally filed in Cahfornia, was transferred to Pennsylvania because one of the defendants was not subject to personal jurisdiction in Cahfornia, but was subject to personal jurisdiction in Pennsylvania. As previously explained, the United States Supreme Court no longer follows this rule with reference to foreign plaintiffs because it is inconsistent with Piper Aircraft. Justice Kelly, however, does not agree with, nor would she follow Piper Aircraft. Unlike Justice Kelly, we find the animating reasons undergirding Piper Aircraft persuasive and certainly not xenophobic.
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YOUNG, J. We granted leave to appeal to consider whether the shoulder is part of the “improved portion of the highway designed for vehicular travel” for the purpose of the highway exception to governmental immunity. We conclude that a shoulder is not within the exception because it is not “designed for vehicular travel.” In reaching this conclusion, we overrule the holding in our earlier decision in Gregg v State Hwy Dep’t that a shoulder is “designed for vehicular travel.” Gregg subsequently has been relied on by lower courts for the proposition that every shoulder is “designed for vehicular travel.” As we will discuss, we find no support within Gregg, considering its internal inconsistencies, to give it this broad reading. Moreover, judging from the plain meaning of the statutory language and the context thereof enacted by the Legislature, we conclude that a shoulder, unlike a travel lane, is not the improved portion of a highway designed for vehicular travel. Accordingly, the order of the Court of Claims denying summary disposition on the basis of Gregg is reversed, the judgment of the Court of Appeals affirming that order is reversed, and this case is remanded to the Court of Claims for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY On the morning of March 24, 2000, Alan Thisse traveled north on 1-75 in the far left lane of the three-lane highway. Thisse testified in his deposition that as he passed an entrance ramp he ran over a mound of dirt that forced his vehicle onto the left shoulder of the highway. The left shoulder consisted of a three-foot-wide strip of asphalt with an adjoining two-foot-wide gravel strip. The asphalt portion of the shoulder shared the same grade as the travel lanes. The gravel portion, however, was lower. Thisse’s two left tires dropped onto the gravel surface. As Thisse left the highway travel lane, plaintiff Michael Grimes had just entered onto northbound 1-75. It is alleged that when Thisse recovered and reentered the highway, the grade differential between the gravel and the asphalt surfaces caused Thisse to lose control of his vehicle, veer into the far right lane, and crash into Grimes’s vehicle. As a result of the accident, plaintiff Michael Grimes suffered permanent quadriplegia. Plaintiffs Michael Grimes and his wife Tamara filed actions against Alan and Douglas Thisse and defendant Michigan Department of Transportation (MDOT). Plaintiffs brought negligence and nuisance claims against MDOT, claiming that MDOT negligently maintained the gravel portion of the shoulder where Thisse left the roadway. They argued that MDOT designed the shoulder intending that the gravel portion would gradually slope away from the asphalt portion. However, plaintiffs allege that MDOT failed to maintain that gradual slope, resulting in the drop-off that proximately caused plaintiffs’ injuries. MDOT moved for summary disposition pursuant to MCR 2.116(C)(7), asserting governmental immunity as a defense. It argued that the shoulder fell outside the scope of the highway exception because it was not an improved portion of the highway designed for vehicular travel. Relying on Gregg, the Court of Claims denied MDOT’s motion for summary disposition. The Court of Appeals affirmed the judgment of the Court of Claims. In a short unpublished per curiam decision, the panel relied on Gregg as well as subsequent Court of Appeals cases following Gregg in holding that a shoulder is part of the improved portion of the highway designed for vehicular travel. The panel also held that this Court’s subsequent decision in Nawrocki v Macomb Co Rd Comm had not affected the jurisprudential validity of Gregg. MDOT filed an application for leave to appeal, which this Court granted. II. STANDARD OF REVIEW This Court reviews motions for summary disposition under MCR 2.116(C)(7) de novo. Questions of statutory interpretation are also reviewed de novo. When this Court interprets statutory language, our primary goal is to discern the intent of the Legislature as expressed in the text of the statute. Where the language is clear and unambiguous, our inquiry ends and we apply the statute as written. III. ANALYSIS a. GOVERNMENTAL IMMUNITY AND THE HIGHWAY EXCEPTION The governmental tort liability act (GTLA) broadly shields a governmental agency from tort liability “if the governmental agency is engaged in the exercise or discharge of a governmental function.” The act enumerates several exceptions to governmental immunity that permit a plaintiff to pursue a claim against a governmental agency. This case concerns what is known colloquially as the “highway exception.” That provision states, in pertinent part: [E]ach governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency.... The duty of the state and the county road commissions to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, trailways, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel. [ ] The GTLA provides its own definition of “highway,” which is “a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trail- ways, crosswalks, and culverts on the highway.” This definition of a highway excludes “alleys, trees, and utility poles.” Beyond defining the term “highway,” the GTLA does not define these additional terms. It also does not define “shoulder” or include shoulder among the list of features such as bridges and sidewalks that are deemed to be part of a highway. The scope of the highway exception is narrowly drawn. Under its plain language, every governmental agency with jurisdiction over a highway owes a duty to “maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel.” However, when the governmental agency is the state or a county road commission, as is the case here, the Legislature constricted the scope of the highway exception by limiting the portion of the highway covered by that exception. For these agencies, the highway exception does not extend to an installation “outside” the improved portion of the highway such as a sidewalk, trailway, or crosswalk, although these features are included in the general definition of a “highway.” The duty of these agencies to repair and maintain does not extend to every “improved portion of highway.” It attaches only “to the improved portion of the highway” that is also “designed for vehicular travel.” As we discuss later in this opinion, such narrowing of the duty supplies important textual clues regarding the Legislature’s intent concerning whether a shoulder falls within or without the protection afforded by the GTLA. Although the specific issues considered in Nawrocki v Macomb Co Rd Comm, are not before us today, that case is particularly instructive in this case. In Nawrocki, this Court reconciled several of our previous inconsistent highway exception cases, and clarified the scope of the governmental agency’s duty under the highway exception. We held in Nawrocki that “if the condition is not located in the actual roadbed designed for vehicular travel, the narrowly drawn highway exception is inapplicable ... .” Put differently, the highway exception creates a duty to maintain only the “ ‘traveled portion, paved or unpaved, of the roadbed actually designed for public vehicular travel.’ ” Our focus, then, consistent with Nawrocki, is determining whether a shoulder is actually designed for public vehicular travel. b. GREGG v STATE HWY DEP’T Plaintiffs urge this Court to affirm the judgments of the lower courts on the basis of our decision in Gregg v State Hwy Dep't, which we decided before Nawrocki. In Gregg, this Court considered whether the highway exception was available to a bicyclist injured by a defect in “a designated bicycle path on the inner portion of the paved shoulder of a state highway.” The plaintiff suffered extensive injuries when he struck a pothole on the bicycle path and overturned his bicycle. For purposes of deciding whether the trial court had properly granted the defendant’s motion for summary disposition, this Court relied on a photograph of the accident scene, which pictured a bicycle path situated between the “traveled portion of the highway and its paved shoulder.” The majority in Gregg reversed the judgment granting summary disposition that had been entered in favor of the defendant, concluding that the shoulder was designed for vehicular travel. Gregg’s first task was to distinguish the bicycle path in that case from the bicycle path at issue in Roy v Dep’t of Transportation, Roy also involved an injury sustained on a bicycle path, and we concluded there that the plaintiffs claim was barred by governmental immunity. In distinguishing the two cases, the Gregg majority placed a great deal of reliance on where the bicycle path in that case was located in relationship to the roadbed. Whereas the bicycle path in Gregg “comprised part of the inner portion of the shoulder,” the bicycle path in Roy ran “parallel to” and was “detached from” the highway. As a result, Gregg expressly rested its holding “on the assumption that the bicycle path at issue comprised part of the inner portion of the shoulder closest to the roadway,” later conceding that it would have been a closer question “if the bike path had been on the outer fringes of the shoulder.. . .” After distinguishing Roy, the Gregg majority offered several reasons to support its conclusion that the shoulder encompassing the bicycle path fell within the highway exception. It noted the uninterrupted line of cases from the Court of Appeals beginning in 1971 holding that a shoulder was designed for vehicular travel. Because the Legislature did not overrule that line of cases when it amended the GTLA over the years, this served as proof to the Gregg majority that the Legislature approved of this line of cases construing the highway exception. The Gregg majority also held that it “flies in the face of common experience” to say that a shoulder is not designed for vehicular travel. It opined: Any motorist who has ever experienced a highway emergency understands that shoulders are essential to a safe modern highway. To get on or off a shoulder to stop, park, or leave standing a vehicle, motorists must travel on the shoulder. At the high speeds of modern vehicles, such an endeavor often results in significant travel, “in the ordinary sense,” on the shoulder of a highway. Indeed, it seems quite extraordinary, if not fictional, to assume that vehicles do not travel on shoulders or that shoulders are not designed for vehicular travel, albeit of a temporary sort.[ ] In further support of its holding, the Gregg majority cited what it believed to be apposite definitions from the Michigan Vehicle Code (MVC). It noted that the MVC defines “highway” more broadly than “roadway.” Whereas in the MVC a highway encompasses “the entire width between the boundary lines,” a roadway is only that portion of the highway “improved, designed, or ordinarily used for vehicular travel.” According to the Gregg majority, the Legislature’s use of the broader term “highway” in the highway exception of the GTLA evinced its intent to sweep the shoulder into that exception. Otherwise, it reasoned, the Legislature would have used the more narrowly defined term “roadway” to cabin the scope of the highway exception. Justice GRIFFIN dissented from the Gregg majority opinion, arguing, among other things, that the plain language of the highway exception excluded the shoulder. He emphasized that the highway exception ex tends only to a portion of the highway, that is, the portion “designed for vehicular travel.” c. GREGG WAS WRONGLY DECIDED AND POORLY REASONED Although the Court of Claims and the Court of Appeals relied on Gregg to deny defendant summary disposition, we overrule Gregg’s conclusion that a shoulder is “designed for vehicular travel.” That conclusion rested heavily on the fact that the inner portion of the shoulder included a designated bicycle path. The Gregg majority expressed doubt that it would have reached the same conclusion had the designated bicycle path been located further from the edge of the travel lane of the highway. This unusual factual premise — an integrated, dedicated bicycle path — from the standpoint of statutory construction is irrelevant. We believe Gregg is consequently so internally inconsistent that it does not yield a meaningful rule applicable to all shoulders on Michigan’s highways. Frankly, upon close inspection, Gregg is an enigma. Its core assumption is that the location of the integrated bicycle path determined the outcome of that case. We cannot ascertain why the location of the integrated bicycle path — whether it was located on the inner portion or the outer fringe of the shoulder — bore so heavily or at all on the question whether the shoulder was designed for vehicular travel. Furthermore, the Gregg majority’s analysis, as we will show, is not based on the text of the GTLA and is seriously flawed. Therefore, we overrule Gregg and its progeny to the extent that they can be read to suggest that a shoulder is “designed for vehicular travel.” d. GREGG’S REASONING IS ERRONEOUS In our view, there are several fatal flaws in the analysis offered by Gregg. It failed to pay serious attention to the plain meaning of the text of the highway exception and it made other unpersuasive arguments. First, the Gregg majority inappropriately relied on the doctrine of legislative acquiescence for the proposition that prior Court of Appeals decisions that had broadly construed the highway exception to encompass all shoulders were consistent with the Legislature’s intent. This doctrine of legislative acquiescence is founded on the notion that decisions that have not been legislatively overturned are tacitly approved by the Legislature. The doctrine is “highly disfavored” in this Court’s jurisprudence, which prescribes that courts are to discern the Legislature’s intent “ ‘from its words, not from its silence.’ ” That the Legislature did not amend the existing language of the highway exception in response to earlier Court of Appeals cases does not suggest that the Legislature believed those cases were rightly decided. Moreover, unlike the Gregg majority, we decline to rely on the Court’s conception of motorists’ “common experience” with road shoulders as a proper canon of statutory construction. Were this Court competent to make such a normative judgment about motorists’ common experience, it would be particularly inappropriate to apply that judgment here where it departs from the plain statutory language used by the Legislature. This subtle appeal to common experience arguably substituted the Gregg majority’s policy preference for the policy preference of the Legislature. In analyzing the highway exception, we must be governed by the statutory language. Unlike the Gregg Court, we also decline to consult the definitions contained in the MVC to inform our construction regarding the scope of the highway exception. Closer inspection of the MVC reveals why Gregg’s reliance on an unrelated statute to construe another is a perilous endeavor to be avoided by our courts. The GTLA expressly incorporates only one definition from the MVC. Section 5, also known as the motor vehicle exception, refers the reader to the definition of “owner” in the MVC. The absence of any other reference to the MVC in the GTLA, coupled with the explicit incorporation of “owner” in the motor vehicle exception, indicates that the Legislature intended to limit the applicability of the MVC in the GTLA. Even more troubling than the Gregg majority’s frank violation of the rules of statutory construction was the fact that it used provisions of the MVC in a highly selective manner. One of the “crucial” questions before the Gregg Court was “whether the paved shoulder is ‘designed for vehicular travel.’ ” Gregg preferentially selected and relied on only some of the MVC defined terms to answer that question. The Gregg majority cited the MVC definitions of “roadway” and “highway” to support its conclusion that a shoulder was part of the improved portion of the highway designed for vehicular travel, but curiously failed to rely on the most relevant term defined in the MVC— “shoulder.” One can only speculate why the Gregg majority brushed aside this term, which the MVC actually defines as “that portion of the highway contiguous to the roadway generally extending the contour of the roadway, not designed for vehicular travel but maintained for the temporary accommodation of disabled or stopped vehicles otherwise permitted on the roadway. ” Justice GRIFFIN’s dissent reminded the majority of this fact, to which the majority unconvincingly responded that what it termed “another section” of the MVC stated, “ ‘ “Shoulder” means that portion of a highway or street on either side of the roadway which is normally snowplowed for the safety and convenience of vehicular traffic.’ ” It is not clear why the Gregg majority believed this provision negated the MVC’s specific definition of “shoulder,” particularly because this provision does not support the conclusion that a shoulder is designed for vehicular travel, whereas the MVC’s definition of a shoulder specifically states that a shoulder is not so designed. Had the Gregg majority relied on the most relevant definition, the one found in the MVC, it could not have reached the result it did. Once the Gregg majority inappropriately committed itself to using the language of the MVC rather than construing the actual words of the highway exception, the MVC should have pressed the Court to reach the opposite conclusion. More important, the GTLA provides its own definition of “highway.” There is no apparent ambiguity in the GTLA’s definition of “highway” that would warrant resort to another statute’s definition of the same term. Hence, the Gregg majority’s use of the MVC definition was inconsistent with our canons of statutory construction. In sum, the Gregg majority’s conclusion that a shoulder is designed for vehicular travel and the reasons supporting that conclusion are entirely unpersuasive and must be abandoned. e. A SHOULDER IS NOT “DESIGNED FOR VEHICULAR TRAVEL ” Turning from Gregg to the text of the highway exception itself, we hold that the shoulder is not “designed for vehicular travel.” Plaintiffs’ theory, boiled down to its core, is that a shoulder is meant to be a travel lane. Guided by the statutory language chosen by the Legislature, we reject plaintiffs’ contention. A shoulder may be capable of supporting some form of vehicular traffic, but it is not a travel lane and it is not “designed for vehicular travel.” The GTLA does not expressly define “shoulder” or the phrase “designed for vehicular travel.” Nor does the highway exception explicitly indicate whether a shoulder is “designed for vehicular travel.” Consequently, to aid our inquiry, we must consider the plain and ordinary meaning of the phrase “the improved portion of the highway designed for vehicular travel” and the context in which the Legislature employed this phrase. MDOT does not contest that road shoulders are “designed” with the intention that they be used by vehicles. It contests that shoulders are designed as travel lanes. This is a distinction that turns on the meaning of “travel.” Taken in its broadest and most literal sense, “travel” in the highway exception could include the shortest incremental movement by a vehicle on an improved surface. Therefore, in an emergency, when a motorist momentarily swerves onto the shoulder, the motorist can be said to have traveled on the shoulder. Were this broadly inclusive definition of “travel” appropriate, we might be persuaded by plaintiffs’ argument that a shoulder is designed for vehicular travel. However, we reject this broad definition proposed by plaintiffs. Adopting a broad definition of “travel” would read any meaning out of the phrase “designed for vehicular travel.” When interpreting statutes, we “must give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.” The Legislature modified the phrase “the improved portion of the highway” with the phrase “designed for vehicular travel.” It did not intend to extend the highway exception indiscriminately to every “improved portion of the highway.” Otherwise, it would not have qualified the phrase. Rather, it limited the exception to the segment of the “improved portion of highway” that is “designed for vehicular travel.” Because the Legislature created this distinction, it believed there are improved portions of highway that are not designed for vehicular travel. Hence, this Court ought to respect this distinction as we parse the statutory language. Plaintiffs in effect urge this Court to adopt the expansive definition of “travel.” If “travel” is broadly construed to include traversing even the smallest distance, then it must follow that every area surrounding the highway that has been improved for highway purposes is “designed for vehicular travel” since such improved portions could support even momentary vehicular “travel.” Under plaintiffs’ interpretation, then, every “improved portion of the highway” is also “designed for vehicular travel.” This interpretation renders these phrases redundant and contravenes a settled rule of statutory interpretation. It also conflates two disparate concepts: design and contemplated use. That vehicular traffic might use an improved portion of the highway does not mean that that portion was “designed for vehicular travel.” Therefore, in an effort to give meaning to every word of the highway exception and to honor the Legislature’s expressed intent, we reject plaintiffs’ construction of the highway exception. We believe that, taken as a whole, the language of the highway exception supports the view that a shoulder, unlike a travel lane, is not designed for vehicular travel. Consequently, we adopt a view of “travel” that excludes the shoulder from the scope of the highway exception. Thus, we hold that only the travel lanes of a highway are subject to the duty of repair and maintenance specified in MCL 691.1402(1). Also, our decision is consistent with Nawrocki. We had no opportunity in Nawrocki to consider the validity of Gregg as it relates to the question presented in this case. However, our determination that the shoulder is not designed for vehicular travel reinforces Nawrocki’s reading of the highway exception that it encompassed only the “ ‘traveled portion, paved or unpaved, of the roadbed actually designed for public vehicular travel.’ ” IV RESPONSE TO THE DISSENT Although the dissent would reaffirm Gregg, it fails to rebut the peculiarities and flaws in Gregg’s reasoning highlighted above and rests heavily on the doctrine of legislative acquiescence, which this Court has clearly discredited and rejected. Furthermore, the dissent offers no serious rebuttal to our construction of the highway exception. We do not harbor, as the dissent accuses, a “subjective fear” that Gregg exposes the governmental agency to “unlimited liability.” Rather, this Court simply seeks to give effect to each word and phrase employed by the Legislature. A shoulder may be capable of supporting vehicular traffic, but this fact does not answer the legal question whether the Legislature intended to designate shoulders as an “improved portion of the highway designed for vehicular travel” and thereby expose a governmental agency to tort liability for defects in a shoulder. If plaintiffs’ definition of “travel” were to prevail, then a key phrase in the highway exception is rendered surplusage. This is inconsistent with our settled rules of statutory construction. V CONCLUSION We overrule Gregg because it was internally inconsistent and it appealed to inappropriate methods of statutory construction. Consistent with the language of the highway exception, we conclude that the shoulder is not designed for vehicular travel. As this Court previously held in Nawrocki, the focus of the highway exception is the actual physical roadbed. Moreover, by concluding that the shoulder is not “designed for vehicular travel,” we fulfill our obligation to give effect to every word of the highway exception. Accordingly, we reverse the order of the Court of Claims and the judgment of the Court of Appeals and remand this case to the Court of Claims for further proceedings consistent with this opinion. Taylor, C.J., and Weaver, Corrigan, and Markman, JJ., concurred with YOUNG, J. 435 Mich 307; 458 NW2d 619 (1990). The parties dispute the severity of the grade differential. Plaintiff Tamara Grimes sued derivatively for loss of consortium. Plaintiffs’ claims against Alan Thisse, the driver, and Douglas Thisse, the owner of the vehicle, are not part of this appeal. The parties stipulated in the order of denial to dismiss all other allegations and agreed that plaintiffs could “only proceed on their claim regarding an alleged' defective shoulder as it relates to the failure of MDOT to repair and maintain the shoulder.” Unpublished opinion per curiam, issued December 16, 2004 (Docket No. 249558). Meek v Dep’t of Transportation, 240 Mich App 105, 114; 610 NW2d 250 (2000); Soule v Macomb Co Bd ofRd Comm’rs, 196 Mich App 235, 237; 492 NW2d 783 (1992). 463 Mich 143; 615 NW2d 702 (2000). 474 Mich 877 (2005). Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Mitan v Campbell, 474 Mich 21, 23; 706 NW2d 420 (2005). Dibenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000). Huggett v Dep’t of Natural Resources, 464 Mich 711, 717; 629 NW2d 915 (2001). MCL 691.1401 et seq. A governmental agency is “the state or a political subdivision.” MCL 691.1401(d). The state, in turn, includes “the state of Michigan and its agencies, departments [and] commissions ....” MCL 691.1401(c). Defendant, as a department of the state, is protected by the provisions of this act. MCL 691.1407(1). The Legislature codified the following exceptions: the highway exception, MCL 691.1402; the motor vehicle exception, MCL 691.1405; the public building exception, MCL 691.1406; the proprietary function exception, MCL 691.1413; the governmental hospital exception, MCL 691.1407(4); and the sewage disposal system exception, MCL 691.1417. MCL 691.1402(1) (emphasis added). MCL 691.1401(e). Id. 463 Mich 143; 615 NW2d 702 (2000). In Nawrocki, this Court decided two issues. First, the highway exception protects pedestrians who are injured by the defendant state or county road commission’s failure to repair and maintain the improved portion of the highway designed for vehicular travel. Id. at 184. Second, the highway exception does not permit “signage” claims. That is, the state and country road commissions owed no duty to install, maintain, repair, and improve traffic control devices. Id. Id. at 162. Id. at 180 (citation omitted). 435 Mich 307; 458 NW2d 619 (1990). Id. at 309. The defendant in Gregg raised a second argument that bicyclists could not bring suit under the highway exception. We rejected that claim by resorting to the plain language of the highway exception, which permits “a person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel” to recover damages for injuries suffered in the improved portion of the roadway designed for vehicular travel. MCL 691.1402(1). This separate holding in Gregg is consistent with our decision in Nawrocki that a pedestrian may sue for an injury occurring in the improved portion of the highway designed for vehicular travel. See Nawrocki, supra at 184. Gregg, supra at 310. 428 Mich 330; 408 NW2d 783 (1987). The Gregg majority also made a superficial attempt to square its holding with an earlier decision from this Court, Goodrich v Kalamazoo Co, 304 Mich 442; 8 NW2d 130 (1943). Goodrich had held that a shoulder next to the roadway that was a three-foot-wide dirt and gravel shoulder with a tree planted “approximately 30 inches” from the pavement was not part of the traveled portion of the road. The Gregg majority recognized but made little effort to differentiate Goodrich, acknowledging that it “would probably conclude” that such a shoulder was not an “improved portion” of a highway if the factual situation in Goodrich had been before the Gregg Court. Gregg, supra at 313. Id. at 310. Id. at 317 n 5. See, e.g., Johnson v Michigan, 32 Mich App 37, 39; 188 NW2d 33 (1971); Van Liere v State Hwy Dep’t, 59 Mich App 133, 136; 229 NW2d 369 (1975); Hall v Dep’t of State Hwys, 109 Mich App 592, 602 n 4; 311 NW2d 813 (1981); McKee v Dep’t of Transportation, 132 Mich App 714, 721; 349 NW2d 798 (1984); Roux v Dep’t of Transportation, 169 Mich App 582, 586; 426 NW2d 714 (1988). Gregg, supra at 315. MCL 257.1 et seq. MCL 257.20. MCL 257.55. Chief Justice Riley wrote a separate dissent concurring in Justice Griffin’s analysis. Justice Griffin also discussed at length the importance of the MVC definitions and their applicability to the GTLA. "While we agree with much of Justice Griffin’s dissent, we do not rely on the MVC to reach our decision. See the discussion later in this opinion. See n 28 of this opinion and the accompanying text. In this case, the shoulder was immediately adjacent to 1-75, a well-traveled interstate highway, and contained no designated bicycle path. We see no principled basis for the distinction Gregg drew between a bicycle path located near to or farther from the travel lanes of a highway. A bicycle path included anywhere within the shoulder of a road would not otherwise be an “installation outside the improved portion of the highway” if, as Gregg arguably concluded, a shoulder itself constitutes an improved portion of the highway designed for vehicular travel. See n 38 of this opinion. Nawrocki, supra at 177 n 33, quoting Donajkowski v Alpena Power Co, 460 Mich 243, 261; 596 NW2d 574 (1999) (emphasis omitted). We expect jurors to apply their “common experience” in assessing facts. Judges should apply law in interpreting statutes. MCL 691.1405; see also Stanton v Battle Creek, 466 Mich 611; 647 NW2d 508 (2002). See Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993) (“Courts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute, and then, on the basis of that assumption, apply what is not there.”); Detroit v Bedford, Twp, 253 Mich 453, 456; 235 NW 217 (1931) (“Courts cannot attach provisions not found therein to an act of the legislature because they have been incorporated in other similar acts.”), citing Michigan v Sparrow, 89 Mich 263, 269; 50 NW 1088 (1891). Gregg, supra at 313. MCL 257.59a (emphasis added). Gregg, supra at 315, quoting former MCL 257.1501(k) (emphasis in Gregg). In actuality, the quoted section was part of the former Michigan Snowmobile Act, not the MVC. The former provision is now found at MCL 324.82101(p). If the Gregg majority had examined faithfully the entire MVC, it would have found additional support to conclude that a shoulder is not designed for vehicular travel. The MVC requires a person to drive within the travel lanes or risk a civil infraction. For example, the driver of a vehicle may not “overtake and pass another vehicle upon the right by driving off the pavement or main-traveled portion of the roadway.” MCL 257.637(2). Thus the organic traffic laws of this state, as provided in the MVC, limit vehicular travel to the travel lanes. MCL 691.1401(e). Although this Court respects and gives considerable weight to the doctrine of stare decisis, we are “not constrained to follow precedent when governing decisions are unworkable or are badly reasoned.” Robinson v Detroit, 462 Mich 439, 464; 613 NW2d 307 (2000). For the reasons stated earlier in this opinion, we believe Gregg was a badly reasoned decision. However, we must move beyond those considerations under a stare decisis analysis and examine the effects of overruling Gregg. Id. at 466. One of the most significant considerations is “the effect on reliance interests and whether overruling would work an undue hardship because of that reliance.” Id. We find no reliance interests at work that support the continuation of Gregg’s erroneous interpretation of the highway exception. Motorists traverse shoulders because of the exigencies of highway travel. They do not traverse shoulders because our case law might permit them to recover against the governmental agency in the event of an accident. Indeed, to do so would he a violation of the MVC. MCL 257.637. Gregg is not the sort of case that fosters a rebanee interest or shapes future individual conduct. Therefore, we do not bebeve we work an undue hardship in overruling Gregg. Further, by correcting Gregg’s erroneous construction of the highway exception, we restore “legitimate citizen expectations” that the Court will not arrogate to itself the legislative power to make pubbe pobey. Robinson, supra at 467. MCL 8.3a; Horace v City of Pontiac, 456 Mich 744, 755-756; 575 NW2d 762 (1998). See Random House Webster’s College Dictionary (1995), defining “travel” as “to go from one place to another ....” State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002). The only conceivable limitation of the highway exception under this expansive view is that the duty does not extend to an “installation outside of the improved portion of the highway designed for vehicular travel.” MCL 691.1402(1) (emphasis added). However, it is not clear, if every improved portion of highway is designed for vehicular travel, where the improved portion of the highway designed for vehicular travel ceases. For example, on the motion for summary disposition, the parties submitted photos that depict the area of 1-75 around the accident scene. Clearly, much of this area is an “improved portion of the highway.” That is, most of the area surrounding the actual roadbed hears the mark of human improvement for highway purposes. For example, separating the northbound and southbound lanes of 1-75 is an intentionally sloped grassy median shaped in that fashion for any number of highway-related purposes. Plaintiffs’ theory would require that we conclude that this entire swath of land, which looks dramatically different from the wood and shrubbery lines on either side of 1-75, was an improved portion of highway designed for vehicular travel. In construing the GTLA, this Court has often relied on the principle set forth in Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 618; 363 NW2d 641 (1984), that exceptions to governmental immunity are construed narrowly and the grant of immunity is construed broadly. It is unnecessary to rely on this Ross principle to decide this case. We reject plaintiffs’ argument that the shoulder is designed for vehicular travel, and we overrule Gregg in order to construe the statutory language reasonably and give effect to every word and phrase in the highway exception. Nawrocki, supra at 180 (citation omitted). See Donajkowski v Alpena Power Co, 460 Mich 243, 258-262; 596 NW2d 574 (1999). Post at 99.
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On November 3, 2005, we granted leave to appeal in these cases and ordered that they be argued and submitted to the Court together. 474 Mich 913, 914 (2005). On May 2, 2006, the Court heard oral argument. On order of the Court, the parties are directed to file supplemental briefs, within 42 days of the date of this order, addressing the likely practical consequences that would result if this Court were to overrule Sewell v Clearing Machine Corp, 419 Mich 56 (1984). The supplemental briefs shall also discuss the factors that a court is to consider before overruling a prior decision, as set forth in Robinson v Detroit, 462 Mich 439, 464 (2000). In particular, the briefs shall discuss (1) the effect of overruling Sewell, supra, on reliance interests and whether overruhng would work an undue hardship because of that rebanee, and (2) whether overruling Sewell, supra, would produce not just readjustments, but practical real-world dislocations. Robinson, supra at 466. Other participants that have previously submitted briefs in these cases, including the Workers’ Compensation Law Section of the State Bar of Michigan, Michigan Defense Trial Counsel, Inc., the Michigan Trial Lawyers Association, and the Attorney General on behalf of the director of the Workers’ Compensation Agency, are invited to file supplemental briefs on this issue within 42 days of the date of this order. Other persons or groups interested in the possible overruhng of Sewell, supra, may move the Court for permission to file briefs amicus curiae. Court of Appeals Nos. 258271, 250539.
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PER CURIAM. The Wayne County Employees Retirement System (“retirement system”) was established in 1944 “for the purpose of providing retirement income to eligible employees and survivor benefits.” Wayne County Charter § 6.111. Currently, the retirement system consists of five defined benefit plans, one defined contribution plan, and the Inflation Equity Fund (IEF). Each year, the county is required by Const 1963, art 9, § 24, to make an “annual required contribution” (ARC). An annual actuarial valuation determines the ARC amount. MCL 38.1140m. The IEF was created in 1985 by county ordinance to provide a pool of money for discretionary payments to eligible retirement system participants and beneficiaries in addition to those payments required by the pension system, as a method to counteract the effect of inflation. Payments from the IEF are known as the “13th check.” The IEF is funded by investment profits earned on the assets held in the defined benefit plans and the IEF, to the extent those profits exceed a certain rate of return. In 2010, Wayne County faced a substantial fiscal obligation in order to satisfy its actuarially determined ARC. In order to satisfy its ARC obligation, the county passed an ordinance amendment, Wayne County Code of Ordinances (WCCO), §§ 141-32 and 141-36, as amended by Wayne County Enrolled Ordinance No. 2010-514. As is relevant here, the amended ordinance limited the IEF to a maximum balance of $12 million, and directed that IEF funds exceeding that amount be transferred to the retirement system’s defined benefit plans. Because the IEF balance at the time was significantly greater than $12 million, the ordinance resulted in a transfer of $32 million from the IEF into the defined benefit plans. The amended ordinance further permitted the county to use the $32 million transfer from the IEF to the defined benefit plans as an offset against its ARC obligation. The retirement system challenged the 2010 ordinance amendment, claiming, inter alia, that the transfer and corresponding ARC offset violated Const 1963, art 9, § 24, and various provisions of the Public Employee Retirement Systems Investment Act (PERSIA), MCL 38.1132 et seq. The county moved for summary disposition, which the trial court granted, ruling that the IEF did not amount to an “accrued financial benefit” as considered in Const 1963, art 9, § 24, and that the amended ordinance’s transfer and offset did not violate PERSIA. The Court of Appeals reversed the trial court, holding that the transfer of funds from the IEF and offset against the county’s ARC obligation violated the requirement in MCL 38.1133(6) that the funds be for the “exclusive benefit” of the retirement system’s participants and their beneficiaries and that the county used the IEF funds in violation of the “prohibited transaction rule,” MCL SS-l^^Xc). Wayne Co Employees Retirement Sys v Wayne Co, 301 Mich App 1; 836 NW2d 279 (2013). We affirm the Court of Appeals in part. Except as noted later in this opinion, we agree with the Court of Appeals that, in this case, the transfer of funds from the IEF to the retirement system’s defined benefit plans, coupled with the offset against the county’s ARC obligation, violated PERSIA for the reasons stated in the Court of Appeals opinion. Id. at 30-46 (finding a violation of the “exclusive benefit rule” in MCL 38.1133(6)), and id. at 46-48 (finding a violation of the “prohibited transaction rule” in MCL 38.1133(6)(c)). Accordingly, we affirm the Court of Appeals’ holding that the $32 million that was offset against the county’s ARC violates PERSIA, and the county must satisfy its ARC obligations absent consideration of that $32 million. Id. at 52. However, we also vacate two aspects of the Court of Appeals opinion. First, we vacate footnote 29 and corresponding portions of the Court of Appeals opinion in which the panel reasoned that, because the transfer of IEF funds, even without a corresponding offset to the county’s ARC, would violate PERSIA, the transferred funds must be returned to the IEF account and used “for the purpose intended.” See Wayne Co Retirement Sys, 301 Mich App at 51 n 29. Although the county raised the theory that the transfer of IEF funds without an offset is valid under PERSIA in Count II of its counterclaim, the trial court did not rule on this alter native claim because it ruled that the county’s ordinance was “legal as written.” It was therefore unnecessary for the Court of Appeals to rule on this issue, and since this issue received only cursory treatment by the parties in the Court of Appeals, the preferable course would have been to remand for further proceedings on this claim. The Court of Appeals nonetheless addressed the matter, and although we invited farther development of it in this Court, the county failed to pursue it in its brief and at oral argument, instead taking the position that the presence of the corresponding offset had no bearing on the validity of the transfer under PERSIA. The county’s abandonment of the issue on appeal has rendered it unnecessary, and has left us ill equipped to address the merits of whether the amended ordinance’s transfer would be permissible under PERSIA without the corresponding offset. Accordingly, we express no opinion on the issue of whether the intrasystem transfer of retirement system assets without a corresponding offset to the plan sponsor’s ARC violates PERSIA, and leave that question open for another day. Nonetheless, because the county has abandoned this issue in the instant case, we leave in place the Court of Appeals’ determination that the transferred funds must be returned to the IEE See Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959) (“The appellant himself must first adequately prime the pump; only then does the appellate well begin to flow.”); Horetski v American Sandblast Co, 340 Mich 323, 327; 65 NW2d 702 (1954). Thus, while we vacate footnote 29 in its entirety, to the extent that the remedy fashioned by the Court of Appeals was based on its conclusion that the transfer even without an offset violates PERSIA, we leave its remedy intact for purposes of this case because, as stated above, the county abandoned its argument that the transfer without the offset does not viólate PERSIA. Accordingly, we affirm the Court of Appeals’ holding that “the $32 million that was offset against the county’s ARC [must] be[] returned, restored, or credited to the IEF, with the county being required to satisfy its ARC obligations absent consideration of that $32 million.” Wayne Co Retirement Sys, 301 Mich App at 52. Additionally, we affirm the Court of Appeals’ conclusion that “the $12 million IEF limitation can operate prospectively” and that [a] proper prospective application of the $12 million IEF limitation would entail limiting future funding of the IEF until it dropped below $12 million, which is exactly how WCCO, § 141-32(b)(l), operates and is presently structured, where it provides the formula for annual funding of the IEF, subject to the $12 million IEF balance limit. Accordingly, WCCO, § 141-32(b)(l), remains wholly intact and WCCO, § 141-32(a)—the provision setting forth the $12 million IEF limit—also remains in effect, but with the caveat that the limit is inapplicable in regard to the previously existing $44 million (or $32 million excess) until those IEF assets are first reduced down to $12 million. With respect to the $5 million dollar IEF distribution limit found in WCCO, § 141-32(b)(2), it is already prospective in nature, operating to limit disbursements made after the 2010 ordinance became effective. [Id. at 52-53 (footnote omitted).][ ] Second, we vacate the portions of the Court of Appeals opinion discussing the constitutional implications of the amended ordinance in relation to Const 1963, art 9, § 24. As the Court of Appeals expressly acknowledged, it is not necessary to consider any potential constitutional implications of the amended ordinance because this case can be decided by applying PERSIA alone. See Wayne Co Retirement Sys, 301 Mich App at 35 n 23. Because “questions of constitutionality are not decided where a case may be disposed of without such a determination,” MacLean v Mich State Bd of Control for Vocational Ed, 294 Mich 45, 50; 292 NW 662 (1940) (citation omitted), the Court of Appeals’ analysis of the issue is dicta. Accordingly, we vacate as unnecessary all portions of the Court of Appeals opinion that considered whether the IEF benefits constitute “accrued financial benefits” for purposes of Const 1963, art 9, § 24, including all discussion of “group” accrued benefits. In summary, we affirm the portions of the Court of Appeals opinion holding that the transfer of $32 million from the IEF to the retirement system’s defined benefit plans and corresponding offset against the county’s ARC obligation in this case violated PERSIA for the reasons stated in the Court of Appeals opinion. We likewise affirm the Court of Appeals’ determination that the transferred funds must be returned to the IEF. However, we vacate as beyond the scope of the instant appeal the reasoning underlying that determination— namely, the portions of the Court of Appeals opinion concluding that the transfer at issue would violate PERSIA without the corresponding offset against the county’s ARC obligation, and the determination that the transferred funds, once returned to the IEF, must be used only for the purposes of that fund going forward. The net effect of our decision is that the issue whether the transfer without a corresponding offset violates PERSIA remains an open one, but the remedy fashioned by the Court of Appeals in this case is left undisturbed for purposes of this case. Finally, we vacate as unnecessary the portions of the Court of Appeals opinion discussing the constitutional implications of the amended ordinance in relation to Const 1963, art 9, § 24. We remand to the trial court for proceedings and entry of judgment not inconsistent with this opinion. Young, C.J., and Cavanagh, Markman, Kelly, Zahra, McCormack, and Viviano, JJ., concurred. When the complaint in this case was filed, 1VICL 38.1133(6) stated in relevant part: The system shall be a separate and distinct trust fund and the assets of the system shall be for the exclusive benefit of the participants and their beneficiaries and of defraying reasonable expenses of investing the assets of the system. With respect to a system, an investment fiduciary shall not cause the system to engage in a transaction if he or she knows or should know that the transaction is any of the following, either directly or indirectly: (c) A transfer to, or use by or for the benefit of, the political subdivision sponsoring the system of any assets of the system for less than adequate consideration.... PERSIA was recently amended, effective March 28, 2013. 2012 PA 347. As amended, the relevant portions of the statute are found in MCL 38.1133(8). However, because the current complaint was filed before the effective date of the amendments, we refer to the preamendment version of PERSIA. In keeping with our decision to leave open the question whether the mere transfer of retirement assets without a corresponding offset to a plan sponsor’s ARC violates PERSIA, nothing in our decision to affirm the Court of Appeals remedy in this case should be read as necessarily allowing or precluding any municipality, including the county, from enacting an ordinance that directs the intrasystem movement of system assets. As stated within, we decline to determine whether, or under what conditions, such a transfer is permissible under PERSIA. The Court of Appeals also ruled on the validity of a number of other aspects of the amended ordinance; these rulings have not been challenged before this Court, and thus remain intact.
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YOUNG, J. Defendants were convicted of first-degree premeditated murder following a joint trial before one jury. The Court of Appeals reversed defendants’ convictions on the bases that the admission of each codefendant’s statements to the police against the other was a violation of Bruton v United States, and that the error was not harmless. In Bruton, the United States Supreme Court held that a defendant is deprived of his Sixth Amendment confrontation rights when a nontestifying codefendant’s confession that inculpates the defendant is introduced at a joint trial. We agree with the Court of Appeals that defendants’ Sixth Amendment confrontation rights were violated. However, we disagree with the Court of Appeals that the error warranted reversal of defendants’ convictions. Unpreserved, constitutional errors are reviewed for plain error affecting substantial rights. Because defendants have failed to show reversible prejudice, actual innocence, or that the confrontation error “ £ “seriously affect[ed] the fairness, integrity or public reputation” ’ ” of the trial, reversal of their convictions was improper. Accordingly, we reverse the Court of Appeals judgment and reinstate defendants’ first-degree murder convictions. FACTS AND PROCEDURAL HISTORY On March 23, 2002, three-year-old Destiney Thomas sustained a fatal gunshot wound as the result of a drive-by shooting. The prosecution charged defendants Cedric Pipes and Julian Key with first-degree premeditated murder, assault with intent to commit murder, and possession of a firearm during the commission of a felony in connection with the shooting. Pursuant to MCR 6.121(C), defendants moved for separate trials or separate juries, arguing that their defenses were “mutually exclusive.” In support of the motion, defendant Key made an offer of proof that he would testify that he was not present and had no involvement in the shooting. Meanwhile, defendant Pipes made an offer of proof that he would testify that he was present when defendant Key shot at the house, but that Pipes had no involvement in the shooting. Neither defendant argued for severance based on the possibility of a Bruton error. The trial court denied defendants’ motion, determining that defendants could not make the requisite showing of prejudice necessary to sustain the motion. The trial court concluded that although defendants’ proposed defenses involved blame shifting, they were not “mutually exclusive.” Furthermore, the trial court specifically noted that, given defendants’ offer of proof, no Bruton problem was present in this case. If the codefendant testifies at trial, then his statements to the police are admissible because the maker of the statements is subject to cross-examination. The trial court relied on the offers of proof presented by both defendants where each unequivocally stated his intention to testify at trial. The trial court noted multiple times its determination that no Bruton problem was present because both defendants planned to testify. The prosecution’s theory at trial was that the victim died in a drive-by shooting that resulted from a territorial dispute between defendants and rival drug dealers. According to the prosecution, rival drug dealers shot defendant Key’s girlfriend’s automobile, a green Jeep Cherokee, in response to an argument with defendants. Defendant Key frequently used the green Jeep and had it in his possession when it was shot. The drive-by shooting that killed the victim was an act of retaliation for the damage done to the automobile. The trial court admitted into evidence multiple statements given by both defendants to the police. Both defendants’ admissions recounted the argument with the rival drug dealers and discussions regarding retaliation for the shooting of the Jeep. Initially, each defendant shifted all blame for the shooting to his codefendant. Subsequently, each codefendant made statements that inculpated himself as well as his codefendant. Defendant Key conceded that both he and defendant Pipes committed the drive-by shooting. Key admitted that he and Pipes obtained a car from a drug customer, which they used in the drive-by shooting, while others followed in the Jeep as backup. Likewise, Pipes admitted that he rented a car for Key to use in the shooting and admitted following behind Key in the Jeep in order to “watch his [codefendant’s] back” during the shooting. After the prosecution presented its case-in-chief, the trial court inquired of defendants regarding how they planned to proceed. At that point, counsel for each defendant equivocated regarding whether his client would testify. The trial court acknowledged that defendants were free to not testify, but reiterated that its denial of their motion for separate trials and juries was specifically premised on the unequivocal offers of proof that defendants would testify at trial. Ultimately, however, defendants exercised their Fifth Amendment right and did not testify at trial. However, defendants never sought a mistrial when the Bruton error became apparent. The jury convicted both defendants of first-degree premeditated murder, but acquitted defendants on all other charges. Defendants were sentenced to life imprisonment without the possibility of parole. The Court of Appeals reversed defendants’ convictions and remanded for new trials. The Court of Appeals majority concluded that the trial court denied defendants a fair trial by denying their motion for separate trials or separate juries, thus causing a Bruton error when defendants chose not to testify. Furthermore, the Court of Appeals majority concluded that the admission of these statements in violation of defendants’ confrontation rights was not harmless. The Court of Appeals majority, however, failed to determine whether defendants properly preserved the Bruton error for appeal, as required by People v Carines. Furthermore, the Court of Appeals majority did not cite or apply the proper standard of review delineated in Car ines for unpreserved, constitutional error. In applying a harmless error analysis, the majority gave little weight to the highly self-incriminating nature of defendants’ statements. The dissent, however, would have affirmed defendants’ convictions on the basis that the offers of proof submitted by the defendants, unequivocally representing that they would testify, waived any claim of error with regard to separate trials or separate juries. The prosecution sought leave to appeal in this Court. After directing the parties to address whether the offers of proof by defendants waived any right to claim a confrontation error, we heard oral argument on whether to grant the application or take other peremptory action permitted by MCR 7.302(G)(1). STANDARD OF REVIEW Constitutional questions, such as those concerning the right to confront witnesses at trial, are reviewed de novo. The effect of an unpreserved claim of constitutional error is reviewed for plain error affecting substantial rights. To avoid forfeiture under the plain error rule, a defendant must show actual prejudice. Under the plain error rule, reversal is only warranted if the defendant is actually innocent or the error seriously undermined the fairness, integrity, or public reputation of the trial. ANALYSIS In Bruton, the United States Supreme Court held that a defendant is deprived of his Sixth Amendment right to confront witnesses against him when his non-testifying codefendant’s statements implicating the defendant are introduced at their joint trial. There is no error, however, if the codefendant testifies. The Court held that giving limiting instructions to the jury that the statements can only be used against the declarant is not sufficiently curative because “the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” In Cruz v New York, a codefendant’s statements were admitted against the defendant along with the defendant’s own confession. The Cruz Court revisited the plurality opinion in Parker v Randolph. In Parker, which involved the same factual predicate as Cruz, four justices determined that Bruton was inapplicable and that there was no Sixth Amendment violation in cases where the defendant’s own statement is admitted alongside the defendant’s nontestifying codefendant’s incriminating statement. Concurring in part and concurring in the judgment, Justice Blackmun stated that the admission of the codefendant’s statement was a Sixth Amendment violation under Bruton, but any error was harmless beyond a reasonable doubt. In Cruz, the Court adopted Justice Blackmun’s approach, holding that a Confrontation Clause violation is not ameliorated when the defendant’s confession is introduced at trial alongside a nontestifying codefendant’s statement that inculpates the defendant. Thus, “where a nontestifying codefendant’s confession incriminating the defendant is not directly admissible against the defendant.. . the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant’s own confession is admitted against him.” However, the Court found that the defendant’s own confession was relevant in a manner applicable to the instant case. The Court held that the defendant’s confession “may be considered on appeal in assessing whether any Confrontation Clause violation was harmless . . . .” We agree with the Court of Appeals that a Bruton error occurred in this case. However, a Bruton error does not require automatic reversal of a defendant’s conviction. The Supreme Court has recognized that a Bruton violation is nevertheless subject to harmless error analysis, and in such a case a defendant’s own confession “may be considered on appeal in assessing whether any Confrontation Clause violation was harmless . . . .” To determine whether the Bruton error warrants reversal, we must first identify the proper standard of review to be applied in this case. In People v Carines, this Court discussed the governing standards of review for claims of alleged error in criminal trial proceedings. The standard of review differs depending on whether the error is constitutional in magnitude and whether the defendant properly preserved the error at trial. As we have noted, a Bruton error is of constitutional magnitude. The other inquiry of consequence is whether the issue was preserved at trial. In order to properly preserve an issue for appeal, a defendant must “raise objections at a time when the trial court has an opportunity to correct the error... .” Preservation serves “the important need to encourage all trial participants to seek a fair and accurate trial the first time around ... .” In this case, defendants never objected to the admission of the statements on Bruton grounds. Defendants also ex pressly approved the limiting instructions given to the jury upon the introduction of each statement. Defendants were aware that the trial court predicated its decision to have a joint trial in front of one jury on defendants’ representations that they were going to testify at trial. When each defendant exercised his right to not testify, thereby causing the Bruton error with regard to the other defendant, neither defendant objected or moved for a mistrial on the basis of the Bruton error. Rather, each defendant allowed the trial to proceed to a verdict without ever affirmatively arguing that his confrontation rights had been violated. By failing to object or move for a mistrial on Bruton grounds, defendants failed to properly preserve the Bruton error for appeal. The Court of Appeals erred in failing to determine whether the Bruton error was properly preserved, and thereby failed to apply the proper standard of review. The Court of Appeals should have reviewed this unpreserved, constitutional error for “plain error that affected substantial rights” under Carines. Under the plain error rule, defendants must show that (1) error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected a substantial right of the defendant. Generally, the third factor requires a showing of prejudice — that the error affected the outcome of the trial proceedings. Defendants bear the burden of persuasion. The failure to establish a plain error that affected a substantial right precludes a reviewing court from acting on such an error. However, even if defendants show plain error that affected a substantial right, reversal is only warranted “when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings ... .” In this case, the first two requirements are satisfied because the introduction of the defendants’ statements that incriminated each other violated defendants’ Sixth Amendment confrontation rights. Once defendants exercised their rights not to testify, admission of the statements was in direct contradiction of the rules laid down in Bruton and Cruz. The next question then is whether the Bruton error affected defendants’ substantial rights. Stated otherwise, the error must have been outcome determinative. Relying on Bruton, Cruz, and this Court’s decision in People v Banks, the Court of Appeals majority found that the Bruton error created prejudice that required reversal. The Court of Appeals majority determined that the evidence properly admitted against defendants was not overwhelming and that the prejudicial effect of the codefendants’ statements against each other was significant. Therefore, the Court of Appeals found that the Bruton error was not harmless. We disagree. The Court of Appeals failed to give sufficient weight to the evidence that was properly admitted against each defendant, particularly the proper admission of each defendant’s self-incriminating statements, and therefore erroneously reversed defendants’ convictions. As held in Cruz, it was not error for each defendant’s own confessions to be admitted against that defendant. The only error was the introduction of the nontestifying codefendant’s incriminating statement in a case where both defendants were tried before a single jury. While the Court of Appeals acknowledged that a defendant’s confession “may be considered on appeal in assessing whether any Confrontation Clause violation was harmless,” it accorded no weight to the strongly self-inculpating nature of each defendant’s confession. Given each defendant’s statements, there is little question of actual innocence with regard to the first- degree murder convictions. This Court has recognized that “[o]ften.. . when the defendant confesses, there can be little doubt concerning his guilt.” Indeed, “ ‘ “the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.” ’ ” Because each defendant’s own statements were self-incriminating, we cannot conclude that either defendant was prejudiced to the point that reversal is required by the erroneous admission of his codefendant’s incriminating statements. Each defendant individually admitted the territorial dispute with rival drug dealers, and each defendant’s statements exposed the motive behind the homicidal shooting — retaliation for shooting the green Jeep Cherokee. In his second statement to the police, defendant Key explicitly admitted being the triggerman in the drive-by shooting and using an AK-47 rifle. Although Pipes did not confess to being the gunman, he admitted procuring a vehicle to transport defendant Key to the drive-by shooting and admitted following Key in the Jeep in order to “watch [Key’s] back.” Taken in isolation, these statements provide more than enough “damaging evidence,” if believed by a jury, for the jury to find each defendant guilty beyond a reasonable doubt as a principal or as an aider or abettor of first-degree premeditated murder. Furthermore, other probative and properly admitted evidence at trial corroborated defendants’ confessions. One witness, who was on the front porch of the victim’s residence at time of the shooting, testified that a green Jeep Cherokee pulled in front of the house and someone opened fire from the passenger side of the vehicle. The witness, who was a friend of defendant Key, testified that the vehicle was similar to the vehicle Key was known to drive. Another witness, who was walking toward the victim’s house, testified that he was approximately one block away from the house when he heard gunfire. After the gunfire ceased, the witness observed a green Jeep Cherokee headed toward him at a “kind of fast” pace. From a distance of ten to 12 feet away, the witness positively identified both defendants in the green Jeep Cherokee, driving in the opposite direction from the scene of the crime. The witness was familiar with both defendants, and testified that Key was known to drive a green Jeep Cherokee. Another witness, who was on the side of the assaulted house at the time of the shooting, testified that he observed a small blue car and a green Jeep Cherokee drive to the residence. The witness ran toward the alley as soon as he observed a gun being pointed at the residence from the small blue car. The witness did not observe the gunshots being fired. Key’s girlfriend testified that she owned a green Jeep Cherokee and that she allowed defendant Key to drive her automobile “almost daily.” At the time of the shooting, she was out of town and returned to find her vehicle missing. When the witness retrieved her automobile from the police two weeks later, one window was “shot out” and the car had two or three bullet holes in it. An inconclusive amount of gunshot residue was found in the Jeep. However, shell casings and bullet fragments collected at the scene of the crime were consistent with an AK-47 rifle. Two Detroit Police officers testified that the information provided to 911 operators implicated a green Jeep Cherokee with a partial license plate number of 341. The officers testified that the “numbers were inverted,” because the license plate sequence on the green Jeep Cherokee owned by defendant Key’s girlfriend had a partial plate number of 431. This evidence, coupled with each defendant’s own highly self-inculpating confession that was properly admitted against the defendant who made the statements, provided strong evidence of guilt from which the jury could convict these defendants. In light of this overwhelming evidence of guilt, the prejudicial effect posed by the Bruton error was minimal, and therefore the Bruton error was harmless. Under plain error review, reversal is only appropriate when the plain error that affected substantial rights “seriously affected the fairness, integrity, or public reputation of the proceedings” or when the defendant shows “actual innocence.” In this case, for the same reasons that we find that defendants cannot show prejudice, defendants cannot show that the error “seriously affected the fairness, integrity, or public reputation of the proceedings” or that they are actually innocent. The properly admitted evidence of guilt, including each defendant’s own highly self-inculpating confession as properly used against him, was sufficient to render the Bruton error harmless. Indeed, it would be the reversal of convictions for error that did not affect the judgment that would seriously affect “ ‘the fairness, integrity or public reputation of the judicial proceedings.’ ” CONCLUSION The Court of Appeals erred in reversing defendants’ first-degree murder convictions. Defendants failed to object or move for a mistrial on Bruton grounds. Therefore, defendants failed to properly preserve the Bruton error for appeal. The Court of Appeals should have reviewed this unpreserved, constitutional error for plain error affecting defendants’ substantial rights. Because defendants failed to show prejudice requiring reversal, actual innocence, or that the error seriously affected the fairness, integrity, or public reputation of the trial, reversal was not warranted in this case. Accordingly, we reverse the Court of Appeals judgment and reinstate defendants’ first-degree murder convictions. Taylor, C.J., and Weaver, Corrigan, and Markman, JJ., concurred with YOUNG, J. 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968). Id. at 126. People v Cannes, 460 Mich 750, 763; 597 NW2d 130 (1999) (citations omitted). MCL 750.316(l)(a). MCL 750.83. MCL 750.227b. Defendant Pipes was also charged with being a felon in possession of a firearm. MCL 750.224f(l). MCR 6.121(C) provides that “[o]n a defendant’s motion, the court must sever the trial of defendants on related offenses on a showing that severance is necessary to avoid prejudice to substantial rights of the defendant.” In People v Hana, 447 Mich 325, 349; 524 NW2d 682 (1994), this Court held that “[i]nconsistency of defenses is not enough to mandate severance [under MCR 6.121(C)]; rather, the defenses must be mutually exclusive or irreconcilable.” (Internal citations and quotation marks omitted.) In other words, “[t]he tension between defenses must be so great that a jury would have to believe one defendant at the expense of the other.” Id. (Internal citations and quotation marks omitted.) Under Hana, a Bruton error may provide grounds for severance. Id. at 346 n 7; Zafiro v United States, 506 US 534, 539; 113 S Ct 933; 122 L Ed 2d 317 (1993). The first proceeding ended in a mistrial. Before the commencement of the second trial, which is the subject of the present appeal, counsel for defendant Key asked that the earlier motion for separate trials or juries be reconsidered. The trial court declined to reconsider the motion, noting that none of the circumstances had changed. The trial court instructed the jury that each statement was only to be considered against the defendant who made the statement. The jury was instructed on this point when the statements were admitted into evidence and when the trial court gave final jury instructions. However, as explained infra, such instructions do not cure a Bruton error. Defendants then rested. They presented no evidence or witnesses. Unpublished opinion per curiam of the Court of Appeals, issued May 31, 2005 (Docket Nos. 247718, 247719). 460 Mich 750; 597 NW2d 130 (1999). 474 Mich 918 (2005). People v Hickman, 470 Mich 602, 605; 684 NW2d 267 (2004). People v McNally, 470 Mich 1, 5; 679 NW2d 301 (2004). Id. Id. Bruton, supra at 126. Id. Id. at 135. 481 US 186; 107 S Ct 1714; 95 L Ed 2d 162 (1987). 442 US 62; 99 S Ct 2132; 60 L Ed 2d 713 (1979). Id. at 77-81. Three justices dissented, and Justice Powell did not participate in the case. Cruz, supra at 193. Id. Id. at 194. The Supreme Court’s recent decision in Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), buttresses the point that both defendants’ confrontation rights were violated by the admission of the nontestifying codefendant’s incriminating statements. The statements clearly fall within the class of “testimonial” statements that are only admissible at trial if the declarant is available for cross-examination, or if the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine. Id. at 59. There is a “ ‘ “very limited class of cases” ’ ” involving “structural errors” where errors are so “intrinsically harmful, without regard to their effect on the outcome, so as to require automatic reversal.” People v Duncan, 462 Mich 47, 51, 52; 610 NW2d 551 (2000), quoting Neder v United States, 527 US 1, 8; 119 S Ct 1827; 144 L Ed 2d 35 (1999), quoting Johnson v United States, 520 US 461, 468; 117 S Ct 1544; 137 L Ed 2d 718 (1997). This limited class of cases has never been recognized by either the United States Supreme Court or this Court to encompass Bruton errors. Because a Bruton error is not structural, it is subject to harmless error review. “\ye reject the notion that a Bruton error can never be harmless.” Brown v United States, 411 US 223, 231; 93 S Ct 1565; 36 L Ed 2d 208 (1973). Cruz, supra at 194. Carines, supra. People v Grant, 445 Mich 535, 551; 520 NW2d 123 (1994). Id. (Internal citations and quotation marks omitted); Cannes, supra at 761. Defendant Pipes did object to the introduction of one of his own statements because he had refused to sign it. However, this objection did not raise or preserve the Bruton error. See MRE 103(a)(1). Absent an express waiver by defendants of their Fifth Amendment rights, we agree with the Court of Appeals majority that the trial court should not have relied on defendants’ representations that they intended to testify at trial when deciding whether to grant separate trials or juries. We reject the Court of Appeals dissent’s argument that defendants waived the Bruton error. See People v Riley, 465 Mich 442, 449; 636 NW2d 514 (2001). Defendants’ silence in the face of a Bruton error amounts to forfeiture, not waiver, because waiver requires “the intentional relinquishment or abandonment of a known right.” People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (internal citations and quotation marks omitted). Any other conclusion would be contrary to the rule that defendants cannot “harbor error as an appellate parachute.” People v Carter, 462 Mich 206, 214; 612 NW2d 144 (2000). “The rule that issues for appeal must be preserved in the record by notation of objection is a sound one,” id., and that rule is totally eviscerated in situations, such as this, where defendants never address appealable issues with the trial court. Carines, supra at 774. Carines, supra at 763. Id. Id. at 763 (internal citations and quotation marks omitted); United States v Olano, 507 US 725, 736; 113 S Ct 1770; 123 L Ed 2d 508 (1993); Johnson v United States, 520 US 461, 469-470; 117 S Ct 1544; 137 L Ed 2d 718 (1997). 438 Mich 408; 475 NW2d 769 (1991). In Banks, this Court held that a Bruton error does not require reversal where “the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.” Id. at 427 (internal citations and quotation marks omitted). This “harmless beyond a reasonable doubt standard” would be the correct standard of review if the Bruton error was preserved. Caries, supra at 774. However, this case deals with an unpreserved, constitutional error, so the Court of Appeals should have reviewed for plain error affecting substantial rights. Id. See also MRE 801(d)(2)(A), which provides for admission at trial of party admissions. Cruz, supra at 194. People v Dunn, 446 Mich 409, 424; 521 NW2d 255 (1994). Id. at 423, quoting Arizona v Fulminante, 499 US 279, 296; 111 S Ct 1246; 113 L Ed 2d 302 (1991) (White, J., with Marshall, Blackmun, and Stevens, JJ., concurring), quoting Bruton, supra at 139 (White, J., dissenting); Cruz, supra at 195 (White, J., dissenting). (Original emphasis omitted; emphasis added.) See MCL 767.39. The jury was instructed regarding the elements required to find guilt under an aiding or abetting theory. The witness testified that her automobile was parked at her residence when she left town, and that defendant Key did not have permission to drive her automobile on the weekend the shooting occurred. A second set of car keys was missing from the witness’s residence. Carines, supra at 773, quoting Johnson, supra at 470.
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CORRIGAN, J. In this case we consider the scope of a manufacturer’s or seller’s duty to warn of product risks under MCL 600.2948(2). We conclude that the statute imposes a duty to warn that extends only to material risks not obvious to a reasonably prudent product user, and to material risks that are not, or should not be, a matter of common knowledge to persons in the same or a similar position as the person who suffered the injury in question. Because the material risk associated with ingesting and inhaling Wonder 8 Hair Oil, as occurred here, would have been obvious to a reasonably prudent product user, the failure to warn against the risk is not actionable. The Court of Appeals misunderstood this duty and held that a duty also existed to warn of the kind of injuries that were suffered. The Court of Appeals also incorrectly allowed various warranty claims to proceed on the basis that the warning was inadequate. Because no warning was required, these holdings were in error. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the trial court’s order granting summary disposition to all defendants. I. UNDERLYING facts and procedural history In April 1999, plaintiff purchased a spray bottle of African Pride Ginseng Miracle Wonder 8 Oil, Hair and Body Mist-Captivate (Wonder 8 Hair Oil) from defendant Pro Care Beauty Supply, which is currently known as Super 7 Beauty Supply, Inc. Defendant A.P Products, which was subsequently acquired by Revlon Consumer Products Corporation, packaged and labeled Wonder 8 Hair Oil. Wonder 8 Hair Oil was marketed principally to African-Americans as a new type of spray-on body and hair moisturizer containing eight natural oils. Plaintiff decided to try the oil after reading the ingredients on the label, some of which were familiar to her and some of which were not. Although the bottle’s label cautioned the user never to spray the oil near sparks or an open flame, it did not warn that the hair oil should be kept out of reach of children or that it was potentially harmful or fatal if swallowed. Plaintiffs 11-month-old son, Keimer Easley, had been left unattended. Somehow he obtained the bottle of hair oil, which had been left within his reach. He ingested and inhaled the hair oil. The child died about one month later from multisystem organ failure secondary to chemical pneumonitis, secondary to hydrocarbon ingestion. In other words, the mineral oil clogged the child’s lungs, causing inflammatory respiratory failure. Plaintiff filed this products-liability action, alleging that defendants breached their duty to warn that the product could be harmful if ingested and that it should be kept out of reach of small children. Plaintiff further claimed that defendants breached an implied warranty by failing adequately to label the product as toxic. Defendants moved for summary disposition. AP Products and Revlon argued that they had no duty to warn because the material risks associated with ingesting Wonder 8 Hair Oil were obvious to a reasonably prudent product user. They further argued that the lack of warning was not the proximate cause of the injury and that the product had been misused in a way that was not reasonably foreseeable. Super 7 Beauty Supply argued that plaintiff failed to establish that it, as a nonmanufacturing seller, had independently breached an express or implied warranty or was independently negligent. It further argued that plaintiff failed to show that the product was not fit for its ordinary uses or for a particular purpose. The trial court granted defendants’ motions for summary disposition. The Court of Appeals reversed and remanded, concluding that the questions whether the Wonder 8 Hair Oil required a warning label, whether defendants breached an implied warranty, and whether plaintiff established proximate cause should have been submitted to a jury. Defendants sought leave to appeal in this Court. We granted defendants’ applications for leave to appeal. II. STANDARD OF REVIEW This case requires us to determine whether the Court of Appeals erred in reversing the trial court’s grant of summary disposition in favor of defendants under MCR 2.116(C)(10). We review this issue de novo. Rose v Nat’l Auction Group, 466 Mich 453, 461; 646 NW2d 455 (2002), citing Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). “In reviewing such a decision, we consider the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties in the light most favorable to the party opposing the motion.” Rose, supra at 461, citing Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). “Summary disposition under MCR 2.116(0(10) is appropriately granted if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Rose, supra at 461, citing MCR 2.116(C)(10). III. ANALYSIS Before 1995, a manufacturer’s or seller’s duty to warn of material risks in a products-liability action was governed by common-law principles. Tort reform legislation enacted in 1995, however, displaced the common law. MCL 600.2948, in chapter 29 of the Revised Judicature Act, now governs a defendant’s duty to warn of an obvious danger in a products-liability action. It states, in relevant part: A defendant is not liable for failure to warn of a material risk that is or should be obvious to a reasonably prudent product user or a material risk that is or should be a matter of common knowledge to persons in the same or similar position as the person upon whose injury or death the claim is based in a product liability action. [MCL 600.2948(2).][ ] Under the plain language of MCL 600.2948(2), a manufacturer has no duty to warn of a material risk associated with the use of a product if the risk: (1) is obvious, or should be obvious, to a reasonably prudent product user, or (2) is or should be a matter of common knowledge to a person in the same or a similar position as the person upon whose injury or death the claim is based. Accordingly, this statute, by looking to the reasonably prudent product user, or persons in the same or a similar position as the injured person, establishes an objective standard. In determining what constitutes a material risk, we are mindful that the statutes governing statutory construction direct us to construe “all words and phrases... according to the common and approved usage of the language,” but construe “technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law” according to such peculiar and appropriate meaning. MCL 8.3a; Horace v City of Pontiac, 456 Mich 744, 756; 575 NW2d 762 (1998). Our research reveals that the term “material risk” has no prior “peculiar and appropriate meaning in the law.” It is thus not a term of art. When considering a word or phrase that has not been given prior legal meaning, resort to a lay dictionary such as Webster’s is appropriate. Id. at 756. Random House Webster’s College Dictionary (1997) defines “material,” in relevant part, as “important: to make a material difference; pertinent: a material question.” Random House Webster’s College Dictionary (1997) defines “risk” as “exposure to the chance of injury or loss.” We thus conclude that a “material risk” is an important or significant exposure to the chance of injury or loss. Finally, regarding the meaning of the statute, we conclude that the Legislature has imposed no duty to warn beyond obvious material risks. The statute does not impose a duty to warn of a specific type of injury that could result from a risk. The Court of Appeals, however, mistakenly held that warnings must cover not only material risks, as described, but must also cover potential injuries that could result. While the Court of Appeals properly applied an objective standard in determining the suitability of the warning, it stated that it could not conclude that “as a matter of law, the risk of death from the ingestion of Wonder 8 Hair Oil would be obvious to a reasonably prudent product user and be a matter of common knowledge, especially considering the lack of any relevant warning.” 264 Mich App at 401 (first emphasis added). The Court of Appeals thus required that the warning indicate specific injuries a product user could incur. Yet, as we have stated, the statute does not require that a warning address possible injuries that might occur. Here, tragically, plaintiffs 11-month-old son died after ingesting and inhaling Wonder 8 Hair Oil. Under the law, however, defendants owed no duty to warn of specific injuries or losses, no matter how severe, if it is or should have been obvious to a reasonably prudent product user that ingesting or inhaling Wonder 8 Hair Oil involved a material risk. We conclude that it is obvious to a reasonably prudent product user that a material risk is involved with ingesting and inhaling Wonder 8 Hair Oil. The product, as plaintiff concedes, was not marketed as safe for human consumption or ingestion. Rather, the label clearly states that the product is intended for use as a hair and body oil. Although subjective awareness is not the standard, we find it noteworthy that plaintiff herself demonstrated an understanding that Wonder 8 Hair Oil posed a material risk if ingested. We believe it would also be obvious to a reasonably prudent user that ingestion and inhalation of the product poses a material risk. The ingredient label’s inclusion of eight natural oils has no bearing on our conclusion. Many, if not all, oils are natural. It should be obvious to a reasonably prudent product user that many oils, although natural, pose a material risk if ingested or inhaled. For instance, the reasonably prudent product user would know that breathing oil would be harmful. A reasonably prudent product user would also know that ingesting such things as crude oil or linseed oil poses a material risk although such oils are natural and pose no immediate danger from contact with hair or skin. In fact, paraffin oil is listed as one of the ingredients in Wonder 8 Hair Oil. It should be obvious to a reasonably prudent product user that ingesting paraffin oil poses a material risk since paraffin is commonly associated with such things as wax. Additionally, the product label on Wonder 8 Hair Oil does not state that it contains only natural oils. Indeed, it lists numerous other ingredients, many of which would be unfamiliar to the average product user, such as isopropryl myristate, fragrance, and azulene. Given such unfamiliar ingredients, a reasonably prudent product user would be, or should be, loath to ingest it. Accordingly, we hold that defendants owed no duty to warn plaintiff that her son’s ingestion and inhalation of the Wonder 8 Hair Oil posed a material risk. Moreover, defendants owed no duty to warn of the potential injuries that could arise from ingesting and inhaling the product. The plaintiff also pleaded breach of implied warranty under MCL 600.2947(6)(a) and breach of implied warranty of merchantability under MCL 440.2314(2) (e) with respect to the nonmanufacturing seller, Super 7 Beauty Supply. Plaintiff claimed that, in the absence of a warning, the oil was not properly labeled. Because no warning was required, however, these claims are without merit. Defendants are therefore entitled to judgment as a matter of law. IV RESPONSE TO JUSTICE CAVANAGH’S DISSENT The crux of Justice CAVANAGH’s dissent is that we erroneously conclude that the obviousness of one risk means the obviousness of all risks. This contention, however, is a gross mischaracterization of our holding and can be found nowhere in our opinion. Rather, we hold that a defendant has no duty to warn of a material risk that is or should be obvious to a reasonably prudent product user. We further hold that the material risk associated with the ingestion and inhalation of hair oil is or should be obvious to a reasonably prudent product user. This conclusion is entirely consistent with the plain language of the statute and focuses on the obviousness of the material risk in question. It does not charge Michigan consumers with “knowledge of hidden dangers” as suggested by Justice CAVANAGH. Post at 524. Justice CAVANAGH also contends that we fail to identify the material risk in question and mislabel the risk as “ingesting or inhaling” the hair oil. Contrary to his contention, we have clearly identified the material risk in this case. To the contrary, Justice CAVANAGH has mislabeled the risk as the “consequence” that results from the misuse of the product. The material risk in this case is neither the misuse of the product (the inhalation or ingestion) nor the consequence of the misuse (injury or death). Rather the material risk is the important or significant exposure to the chance of loss or injury stemming from certain behavior, in this case, the ingestion and inhalation of hair oil. In simple terms, the material risk is the chance that injury could result from drinking or inhaling hair oil. Because a reasonable person knows or should know that ingesting or inhaling hair oil would expose that person to the chance of injury or loss, a defendant has no duty to warn that ingesting or inhaling hair oil could result in exposure to injury or loss. Furthermore, the statute does not require that a person be aware of the worst injury or loss (death) that could possibly result from the misuse of the product. Rather, under the plain language of the statute, it need only be obvious to a reasonably prudent product user that a chance exists that he or she might suffer an injury or loss if they drink or inhale hair oil. We respectfully remind our dissenting colleague that the Legislature, not this Court, refused to impose a duty to warn of obvious material risks. Justice CAVANAGH does not deny this, but evidently chooses to ignore it. By what authority can a court under our Constitution do that? Justice CAVANAGH gives none. The Legislature also refused to require that a defendant list every possible injury that could result from the misuse of a product. Again, Justice CAVANAGH does not deny this, but chooses to ignore it. How does a court obtain such authority? Justice Cavanagh fails to provide an answer, probably because no such authority exists. The rule must and should be that a court applies the statute as written. Applying the plain language of the statute to the facts of this case, we conclude that the material risk associated with ingesting and inhaling hair oil is or should be obvious to a reasonably prudent product user. Thus, defendant had no duty to warn of that material risk. V CONCLUSION We conclude that the Court of Appeals erroneously reversed the trial court’s grant of summary disposition to defendants A.P Products and Revlon. The material risk of harm associated with ingesting and inhaling Wonder 8 Hair Oil is obvious to a reasonably prudent product user. Defendants thus owed no duty to warn plaintiff of that harm. Taylor, C.J., and Young and Markman, JJ., concurred with Corrigan, J. The ingredients listed on the label are Gin Gro Oil Complex (paraffin oil, tea tree oil, kuki nut oil, evening primrose oil, avocado oil, coconut oil, wheat germ oil), isopropryl myristate, fragrance, Gin Gro herbal complex (rosemary, sage, angelica root, licorice root, Job’s tears, cedar, hyacinth, dove, lemon balm, chamomile), carrot oleo resin, azulene, tocopherol acetate (Vitamin E), retinyl palmitate (Vitamin A), and cholecalciferol (Vitamin D). The hair oil was packaged in a clear plastic 7.5 ounce bottle with a nonaerosol pump actuator. When plaintiff first observed that her son had possession of the hair oil, he was standing with the bottle of Wonder 8 Oil in his hand and oil in and around his mouth. Evidently, the child put an unknown amount of hair oil into his mouth, some of which eventually wound up in his lungs. When he was admitted to the hospital, he was diagnosed with hydrocarbon ingestion and chemical pneumonitis. It is not clear how Keimer managed to put the oil into his mouth. Plaintiff testified that when she last used the product earlier that day, the cap had been intact. When she later saw the child with the bottle of oil, the plastic top covering the pump actuator and the actuator were missing. The plastic base of the pump actuator had been cracked vertically so that the pump could be peeled off and the oil could be poured out. 264 Mich App 391; 691 NW2d 38 (2004). 474 Mich 886 (2005). 1995 PA 249, effective March 28, 1996. At common law, a duty to warn of dangers involving the use of a product was imposed on a manufacturer or seller under negligence principles summarized in 2 Restatement Torts, 2d, § 388. Glittenberg v Doughboy Recreational Industries (On Rehearing), 441 Mich 379, 389-390; 491 NW2d 208 (1992). A manufacturer or seller could be held liable for failure to warn if it (a) had actual or constructive knowledge of the claimed danger, (b) had no reason to believe that those for whose use the product is supplied would realize its dangerous condition, and (c) failed to exercise reasonable care to inform users of the product’s dangerous condition or of the facts that make it likely to be dangerous. Id., citing 2 Restatement Torts, 2d, § 388, p 301. Michigan also recognized the common-law “obvious danger” rule. Glittenberg, supra at 393. A manufacturer had no duty to warn if it reasonably perceived that the product’s potentially dangerous condition was readily apparent or could have been disclosed by a mere casual inspection. Id. at 390. Michigan, however, narrowed application of the “obvious danger” rule to cases involving “simple tools or products.” Id. at 393, citing Owens v Allis-Chalmers Corp, 414 Mich 413, 425; 326 NW2d 372 (1982). No duty existed to warn of the obvious danger of a simple product because an obvious danger was no danger to a “reasonably” careful person. Glittenberg, supra at 395-396. In other words, as stated by this Court in Glittenberg, “where the very condition that is alleged to cause the injury is wholly revealed by casual observation of a simple product in normal use, a duty to warn serves no fault-based purpose.” Id. at 396, citing Prentis v Yale Mfg Co, 421 Mich 670; 365 NW2d 176 (1984). A product was considered simple if it was a “ ‘thing of universally known characteristics, not a device with parts or mechanism, the only danger being not latent but obvious to any possible user ....’” Glittenberg, supra at 391, quoting Jamieson v Woodward & Lothrop, 101 US App DC 32, 37; 247 F2d 23 (1957). The principles set forth in MCL 600.2948(2) incorporate most of the common-law principles regarding the “obvious danger” doctrine. The statute, however, does not incorporate principles regarding “simple tools and products.” Under the statute, a defendant need not show that the product in question was a “simple” product in order for the “obvious danger” doctrine to apply. Because it would not be a matter of common knowledge to a person in the same or a similar position as plaintiffs son, an 11-month-old, that a material risk is involved with ingesting Wonder 8 Hair Oil, the only issue in this case is whether it would he obvious to a reasonably prudent product user that a material risk is involved with ingesting Wonder 8 Hair Oil. Interestingly, the Legislature’s use of an objective standard is consistent with this Court’s case law predating the statute. See Glittenberg, supra at 391-392. In Glittenberg, supra at 400, this Court addressed whether a defendant must warn of specific harms. The plaintiff in Glittenberg argued that the danger of diving in a shallow pool was not open and obvious because the specific harm of paralysis or death is not generally recognized. Id. This Court noted, however, that the “threshold issue is not whether a shallow dive can be successfully executed but, rather, whether people in general are unaware of the fact that there is a risk of serious harm when diving in shallow water.” Id. at 401. This Court concluded: [W]here the facts of record require the conclusion that the risk of serious harm from the asserted condition is open and obvious, and no disputed question exists regarding the danger of the product, the law does not impose a duty upon a manufacturer to warn of conceivable ramifications of injuries that might occur from the use or foreseeable misuse of the product. [Id. at 402.] If the Legislature had intended to require a defendant to warn of specific dangers, it would have explicitly mandated that alteration in MCL 600.2948(2). Justice Cavanagh mistakenly asserts that we rely on common-law principles set forth in Glittenberg, supra, in reaching our conclusion. We, however, rely solely on the plain language of MCL 600.2948(2) in reaching our conclusion. As stated above, MCL 600.2948(2) does not require that a defendant warn of specific dangers, and it is not within this Court’s authority to read such language into the statute. Justice Kelly contends that the vast majority of the ingredients listed on the label are seemingly food products. She further contends that none of the ingredients alerts a reasonably prudent product user to the fatal result of ingestion. We reiterate, however, that plaintiffs 11-month-old son died from complications stemming from inhaling Wonder 8 Hair Oil into his lungs. That the child swallowed some of the hair oil was incidental to his death. But because it would be obvious to a reasonably prudent product user that harm could result from allowing a young child to possess a bottle of oil, whether the harm occurs through ingestion or inhalation or some other action, we hold that no duty exists to warn of the injuries that actually result from allowing the child to possess the oil.
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YOUNG, J. Petitioners, two organizations representing the interests of Michigan chiropractors, challenged the validity of the “Preferred Provider Option” offered by appellants to their policyholders. In count I of their petition, petitioners claimed that the option violated the rights of the appellants’ insureds. In count II of their petition, petitioners claimed a violation of the rights of chiropractic providers. Regarding count I, we hold that petitioners do not satisfy the test for third-party standing, and may not litigate the claims of appellants’ insureds. Regarding count II, assuming arguendo that petitioners have standing to sue on behalf of their membership, petitioners have not established an actual or imminent injury. Thus, petitioners’ claim is not ripe for judicial review. Therefore, we vacate the judgments of the circuit court and the Court of Appeals and reinstate the decision of the Commissioner of the Office of Financial and Insurance Services (the Commissioner). I. FACTS AND PROCEDURAL HISTORY The appellant-insurers offer a “Preferred Provider Option” (PPO) to their no-fault automobile insurance policyholders, allowing their insureds to elect to limit their choice of medical care providers in the event they require personal injury protection (PIP) benefits. In exchange for reduced PIP premiums, insureds agree to receive treatment from a network of medical care providers maintained by Preferred Providers of Michigan (PPOM). In the event that a policyholder seeks treatment from a provider outside the PPOM network, the insured must pay a deductible, and provider reimbursement is limited to PPOM’s customary reimbursement rate. The “Preferred Provider Option” is entirely voluntary; if policyholders do not opt for the endorsement, they do not receive the premium discount and are not limited to the PPOM network of providers. Appellants began offering the discounted policy option in July 2000. In August 2000, petitioners filed a request with the Commissioner for a contested case hearing pursuant to MCL 500.2028 and MCL 500.2029, claiming that the PPO endorsement violated the Insurance Code, MCL 500.100 et seq. Petitioners asked the Commissioner to withdraw approval of the endorsement pursuant to MCL 500.2236(5) and to issue a cease and desist order to respondents. The Commissioner sought additional information from respondents and petitioners, which petitioners refused to supply. On the basis of the record established, the Commissioner rejected petitioners’ request for a contested case hearing. The Commissioner concluded that the endorsement did not violate the no-fault act, MCL 500.3101 et seq. Petitioners appealed to the circuit court, which reversed the decision of the Commissioner and held that the “Preferred Provider Option” was not authorized by law. The Court of Appeals affirmed the circuit court judgment, holding that respondents’ PPO endorsement was inconsistent with the no-fault act and that the authority to issue the endorsement must emanate from the Legislature. We granted leave to appeal, directing the parties to address among the issues briefed whether petitioners had standing to challenge the Preferred Provider Option on behalf of appellants’ insureds and chiropractic providers. II. STANDARD OF REVIEW Whether a party has standing is a question of law that we review de novo. Moreover, questions of justiciability implicate constitutional separation of powers principles. Constitutional questions are likewise reviewed de novo. III. ANALYSIS a. JUSTICIABILITY Our tripartite system of government is constitutionally established in both our state and federal constitutions. US Const, art III, § 1 confers upon the courts only “judicial power”; US Const, art III, § 2 limits the judicial power to “[c]ases” and “[c]ontroversies.” Similarly, our state constitution, Const 1963, art 3, § 2, provides: 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 powers of each branch are outlined in the Michigan Constitution, which assigns to the Legislature the task of exercising the “legislative power,” the Governor the task of exercising the “executive power,” and the judiciary the task of exercising the “judicial power.”* In Nat’l Wildlife, this Court described and defined the Court’s constitutionally assigned “judicial power”: The “judicial power” has traditionally been defined by a combination of considerations: the existence of a real dispute, or case or controversy; the avoidance of deciding hypothetical questions; the plaintiff who has suffered real harm; the existence of genuinely adverse parties; the sufficient ripeness or maturity of a case; the eschewing of cases that are moot at any stage of their litigation; the ability to issue proper forms of effective relief to a party; the avoidance of political questions or other non-justiciable controversies; the avoidance of unnecessary constitutional issues; and the emphasis upon proscriptive as opposed to prescriptive decision making. [471 Mich 614-615.] In seeking to make certain that the judiciary does not usurp the power of coordinate branches of government, and exercises only “judicial power,” both this Court and the federal courts have developed justiciability doctrines to ensure that cases before the courts are appropriate for judicial action. These include the doctrines of stand ing, ripeness, and mootness. Federal courts have held that doctrines such as standing and mootness are constitutionally derived and jurisdictional in nature, because failure to satisfy their elements implicates the court’s constitutional authority to exercise only “judicial power” and adjudicate only actual cases or controversies. Because these doctrines are jurisdictional in nature, they may be raised at any time and may not be waived by the parties. Likewise, our case law has also viewed the doctrines of justiciability as affecting “judicial power,” the absence of which renders the judiciary constitutionally powerless to adjudicate the claim. This is a point made in Anway v Grand Rapids R Co: “The duty of this court, as of every judicial tribunal, is limited to determining rights of persons or of property, which are actually controverted in the particular case before it. When, in determining such rights, it becomes necessary to give an opinion upon a question of law, that opinion may have weight as a precedent for future decisions. But the court is not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it. No stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court in this regard.” [Citation omitted.] Similarly, in Novi v Robert Adell Children’s Funded Trust, this Court recently stated: Where the facts of a case make clear that a litigated issue has become moot, a court is, of course, bound to take note of such fact and dismiss the suit, even if the parties do not present the issue of mootness. “ 1 “Courts are bound to take notice of the limits of their authority, and a court may, and should, on its own motion, though the question is not raised by the pleadings or by counsel, recognize its lack of jurisdiction and act accordingly by staying proceedings, dismissing the action, or otherwise disposing thereof, at any stage of the proceeding.” ’ ” Because “ ‘[t]he judicial power... is the right to determine actual controversies arising between adverse litigants,’ ” a court hearing a case in which mootness has become apparent would lack the power to hear the suit. [Citations omitted.][ ] Because “the most critical element” of the “judicial power” requires that a case contain a genuine controversy between the parties, we must ensure that one exists before exercising our judicial authority. The judiciary arrogates to itself the powers of the executive and legislative branches whenever it acts outside the constitutional confines of “judicial power.” Fidelity to our constitutional structure compels this Court to be “vigilant in preventing the judiciary from usurping the powers of the political branches.” Thus, we reiterate that questions of justiciability concern the judiciary’s constitutional jurisdiction to adjudicate cases containing a genuine controversy. Questions of justiciability may be raised at any stage in the proceedings, even sua sponte, and may not be waived by the parties. Where a lower court has erroneously exercised its judicial power, an appellate court has “jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.” b. THIRD-PARTY STANDING In count I of their amended petition, petitioners challenge appellants’ policy endorsement as violating the rights of appellants’ insureds. Thus, count I of the petition concerns third-party standing — whether petitioners may litigate to vindicate the rights of others. The general rule is that a litigant cannot vindicate the rights of a third party. The rule disfavoring jus tertii — litigating the rights of a third party — “assumes that the party with the right has the appropriate incentive to challenge (or not challenge) governmental action and to do so with the necessary zeal and appropriate presentation.” Furthermore, this rule reflects a “healthy concern” that if the claim is brought by a third party, “the courts might be ‘called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.’ ” As is often the case with general rules, there are recognized exceptions. While third-party standing is generally disfavored, federal jurisprudence has permitted, under certain limited circumstances, a litigant to assert the rights of another. In addition to requiring that the litigant establish standing, the litigant must also make two additional showings. First, the litigant must have a sufficiently “close relation to the third party.” Second, “there must exist some hindrance to the third party’s ability to protect his or her own interests.” Michigan’s third-party standing jurisprudence is considerably less developed. In Mary v Lewis, a garnishee defendant challenged the constitutionality of a codefendant’s prejudgment garnishment. This Court discussed and denied third-party standing to the defendant after discussing factors from a United States Supreme Court dissenting opinion: As a general rule, one party may not raise the denial of another person’s constitutional rights... . Defendant quotes portions of Justice Brennan’s dissent in Village of Belle Terre v Boraas, 416 US 1; 94 S Ct 1536; 39 L Ed 2d 797 (1974), where two exceptions to this general rule are discussed: first, those situations where there is evidence that the direct consequence of the denial of the constitutional rights of the other would impose substantial economic injury upon the party asserting the right; second, those instances where the litigant’s interest and the other’s interest intertwine and the latter’s rights may not be effectively vindicated in any other manner because they are capable of evading constitutional review. In this case the bank does not show how it qualifies under either of these exceptions.... We therefore conclude that the bank has no standing to interpose the due process rights of the principal defendant regarding the prejudgment garnishment. [399 Mich at 416.] Thus, the Mary Court would permit jus tertii where a litigant could establish an economic injury, show that the interests between the litigant and the party possessing the right “intertwine,” and show that the third party’s rights “are capable of evading constitutional review.” In our judgment, the test utilized by the Mary Court is analytically deficient. Requiring that a litigant establish an injury, economic or otherwise, is merely a component of our traditional standing doctrine. Moreover, that the litigant and the third party have “intertwining interests” does not lead to the inference that the party establishing jus tertii will be an ardent proponent of the rights of the third party. The third factor is the most curious, for whether a claim is capable of evading review is a consideration that is recognized as relevant to mootness, not standing. Accordingly, we adopt the traditional federal test for third-party standing as articulated in Tesmer. A party seeking to litigate the claims of another must, as an initial matter, establish standing under the test established in Lee, supra Second, the party must have a “close relationship” with the party possessing the right in order to establish third-party standing. Last, the litigant must establish that there is a “hindrance” to the third party’s ability to protect his or her own interests. As applied to the facts of this case, petitioners cannot meet the requirements of third-party standing and cannot litigate the rights of appellants’ insureds. Assuming arguendo that petitioners could satisfy the Lee elements, and assuming without deciding that petitioners share a sufficiently “close relationship” with appellants’ insureds, there is absolutely no evidence that any obstacle or hindrance prevents appellants’ insureds from protecting their own interests through litigation. Therefore, we hold that petitioners do not have standing to assert that the rights of appellants’ insureds were violated by appellants’ managed care endorsement. c. RIPENESS The doctrine of ripeness is closely related to the doctrine of standing, as both justiciability doctrines assess pending claims for the presence of an actual or imminent injury in fact. However, standing and ripe ness address different underlying concerns. The doctrine of standing is designed to determine whether a particular party may properly litigate the asserted claim for relief. The doctrine of ripeness, on the other hand, does not focus on the suitability of the party; rather, ripeness focuses on the timing of the action. Count II of the petitioners’ petition asserts that appellants’ managed care option violates the rights of chiropractic providers, including petitioners’ membership. As a nonprofit organization, petitioners have standing to litigate on behalf of their members to the degree that their members would have standing as individual plaintiffs. The petition asserts that provid ers “are entitled to be paid their reasonable and customary charge,” but significantly, appellees assert as their injury that appellants’ policy endorsement violates MCL 500.3157 by reimbursing providers at a rate less than their customary charged. Review of the record in this case reveals no evidence that any of petitioners’ members have experienced an actual injury as a result of appellants’ policy endorsement. Because petitioners seek relief for a hypothetical injury, the ripeness of the claim comes into question. The ripeness doctrine is supported by both constitu tional and prudential principles. As a threshold matter, the Michigan Constitution permits the judiciary to exercise only “judicial power,” the “most critical element” of which is the requirement that a genuine controversy exist between the parties. A claim lacks ripeness, and there is no justiciable controversy, where “the harm asserted has [not] matured sufficiently to warrant judicial intervention ... .” Petitioners’ allegation that appellants’ policy endorsement violates the rights of their members in violation of MCL 500.3157 is not yet ripe for review. Nothing in the record before us indicates that petitioners’ members have in fact been reimbursed at less than a reasonable amount. The lack of ripeness is further buttressed by the particularly fact-intensive nature of petitioners’ claim. MCL 500.3157 provides that chiropractors “may charge a reasonable amount” for services rendered. Petitioners have the burden of establishing the reasonableness of their members’ charges in order to impose liability on the insurer. Moreover, questions surrounding the reasonableness of petitioners’ members’ charges are factual in nature and must be resolved by the jury. Because the record is completely devoid of any facts supporting an actual or imminent injury in fact, we conclude that petitioners’ claim is not ripe for review at this juncture and is not justiciable. IV CONCLUSION Issues of justiciability concern the judiciary’s constitutionally delineated jurisdiction to exercise only “judicial power” and hear only cases involving an actual controversy. Therefore, questions of justiciability may be raised at any stage in the proceedings and may not be waived by the parties. Regarding count I, we hold that petitioners do not satisfy the test for third-party standing, and may not litigate on behalf of appellants’ insureds. In count II, petitioners assert the rights of their members. Assuming that petitioners could otherwise litigate the claims of their members, petitioners have not established an actual or imminent injury; thus, the claim is not ripe for review. We therefore vacate the judgments of the circuit court and the Court of Appeals and reinstate the decision of the Commissioner. Taylor, C. J., and Corrigan, J., concurred with Young, J. Because we dispose of this case on the basis of standing and ripeness, we do not address the substantive merits of appellants’ appeal. The policy option was deemed approved after the Commissioner failed to act within 30 days after the endorsement was submitted for approval pursuant to MCL 500.2236(1). Petitioners’ amended petition contained four counts; however, only the two counts referenced above are relevant to this appeal. As noted, count I alleged that the endorsement violated the rights of insureds and count II alleged that the endorsement violated the rights of chiropractic providers. Count III alleged that the $500 deductible imposed when a policyholder sought treatment from a nonnetwork provider was a penalty, which “potentially imposes a tremendous hardship on insureds.” However, following an adverse decision by the Commissioner, petitioners did not seek review of count III in the circuit court. Count IV challenged appellants’ refusal to pay for chiropractic care in favor of allegedly comparable care provided by osteopathic physicians. This issue, which was not addressed by the Commissioner, was resolved in petitioners’ favor in Sprague v Farmers Ins Exch, 251 Mich App 260; 650 NW2d 374 (2002), lv den 469 Mich 914 (2003). 262 Mich App 228; 685 NW2d 428 (2004). 472 Mich 899 (2005). Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608; 684 NW2d 800 (2004); Crawford v Dep’t of Civil Service, 466 Mich 250; 645 NW2d 6 (2002); Lee v Macomb Co Bd of Comm’rs, 464 Mich 726; 629 NW2d 900 (2001). Nat’l Wildlife, supra; Lee, supra. Wayne Co v Hathcock, 471 Mich 445; 684 NW2d 765 (2004). Const 1963, art 4, § 1. Const 1963, art 5, § 1. Const 1963, art 6, § 1. As this Court noted in Anway v Grand Rapids R Co, 211 Mich 592, 598; 179 NW 350 (1920), “By the Constitution the judicial power was vested in the courts and it was vested in no other department of the government. To the courts was committed the judicial power and no other.” (Emphasis added.) Justiciability doctrines such as standing, “ ‘ “mootness, ripeness, political question, and the like — relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.” ’ ” Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 196; 631 NW2d 733 (2001), quoting Allen v Wright, 468 US 737, 750; 104 S Ct 3315; 82 L Ed 2d 556 (1984), quoting Vander Jagt v O’Neill, 226 US App DC 14, 26-27; 699 F2d 1166 (1983) (Bork, J., concurring). The doctrine of standing requires “the existence of a party’s interest in the outcome of litigation that will ensure sincere and vigorous advocacy.” House Speaker v State Admin Bd, 441 Mich 547, 554; 495 NW2d 539 (1993). In order to establish standing, a plaintiff must establish three elements: (1) that the plaintiff has suffered a concrete “ ‘ “injury in fact” ’ ”; (2) the existence of a causal connection between the injury and conduct complained of that is “ ‘ “fairly . .. tracetable] to the challenged action of the defendant” ’ ”; and (3) that the injury will likely be “ ‘ “redressed by a favorable decision.” ’ ” Lee, supra at 739, quoting Lujan v Defenders of Wildlife, 504 US 555, 560-561; 112 S Ct 2130; 119 L Ed 2d 351 (1992) (citations omitted). Ripeness prevents the adjudication of hypothetical or contingent claims before an actual injury has been sustained. A claim is not ripe if it rests upon “ ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” Thomas v Union Carbide Agricultural Products Co, 473 US 568, 580-581; 105 S Ct 3325; 87 L Ed 2d 409 (1985) (citation omitted). See also Dep’t of Social Services v Emmanuel Baptist Preschool, 434 Mich 380; 455 NW2d 1 (1990). Mootness precludes the adjudication of a claim where the actual controversy no longer exists, such as where “ ‘the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’ ” Los Angeles Co v Davis, 440 US 625, 631; 99 S Ct 1379; 59 L Ed 2d 642 (1979), quoting Powell v McCormack, 395 US 486, 496; 89 S Ct 1944; 23 L Ed 2d 491 (1969). See also Wedin v Atherholt, 298 Mich 142; 298 NW 483 (1941). Lewis v Casey, 518 US 343, 349 n 1; 116 S Ct 2174; 135 L Ed 2d 606 (1996)(“standing... is jurisdictional and not subject to waiver”); Iron Arrow Honor Society v Heckler, 464 US 67, 70; 104 S Ct 373; 78 L Ed 2d 58 (1983) (courts “lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies”); Reno v Catholic Social Services, Inc, 509 US 43, 58 n 18; 113 S Ct 2485; 125 L Ed 2d 38 (1993) (noting that ripeness doctrine is drawn from constitutional limitations on judicial power as well as prudential considerations). Reno, supra (noting that ripeness question may be raised on the Court’s own motion, and that the Court cannot be bound by the parties); Lewis, supra (standing not subject to waiver); Nat’l Org for Women, Inc v Scheidler, 510 US 249, 255; 114 S Ct 798; 127 L Ed 2d 99 (1994) (standing “remains open to review at all stages of the litigation”); Calderon v Moore, 518 US 149, 150; 116 S Ct 2066; 135 L Ed 2d 453 (1996) (“mootness can arise at any stage of litigation”). In contrast, an administrative agency does not possess “judicial power”; rather, the authority of the administrative agency is derived from the statute that created it. Holloway v Ideal Seating Co, 313 Mich 267; 21 NW2d 125 (1946). While administrative agencies “often act in a quasi-judicial capacity, it is recognized that they are established to perform essentially executive functions.” Judges of 74th Judicial Dist v Bay Co, 385 Mich 710, 727; 190 NW2d 219 (1971). As an administrative agency does not possess and may not exercise “judicial power,” neither is it bound by the limitations of “judicial power.” In other words, administrative agencies are not bound by the same justiciability limitations that affect the authority of the judiciary. See North Carolina Utilities Comm v Fed Communications Comm, 537 F2d 787 (CA 4, 1976); Tennessee Gas Pipeline Co v Fed Power Comm, 197 US App DC 1; 606 F2d 1373 (1979); Climax Molybdenum Co v Secretary of Labor, 703 F2d 447 (CA 10, 1983); Fed Communications Comm v Pacifica Foundation, 438 US 726, 735; 98 S Ct 3026; 57 L Ed 2d 1073 (1978). 211 Mich 592, 615; 179 NW 350 (1920). 473 Mich 242, 255 n 12; 701 NW2d 144 (2005). See also Justice Weaver’s lead opinion in Detroit Fire Fighters Ass’n v Detroit, 449 Mich 629, 633 n 3; 537 NW2d 436 (1995), where she noted that “[s]tanding is a jurisdictional issue that concerns the power of a court to hear and decide a case and does not concern the ultimate merits of the underlying substantive issues of the action.” Nat’l Wildlife, supra at 615. Lee, supra at 737. This notion of “constitutional jurisdiction” is conceptually distinct from “subject-matter jurisdiction.” The term “jurisdiction” is broadly defined as “the authority which the court has to hear and determine a case.” Ward v Hunter Machinery Co, 263 Mich 445, 449; 248 NW 864 (1933). Subject-matter jurisdiction is a court’s authority to try a case of a certain kind or character. See Bowie v Arder, 441 Mich 23, 39; 490 NW2d 568 (1992). Our authority to hear only cases containing a genuine controversy does not depend on the subject matter of the case; rather, it flows from the structural boundaries delineated in our constitution. See also Travelers Ins v Detroit Edison, supra (discussing distinctions between primary jurisdiction and subject-matter jurisdiction). We note that some recent Court of Appeals cases have erroneously equated standing with capacity to sue for the purposes of dispositive motions under MCR 2.116(C)(5). See, for example, Rogan v Morton, 167 Mich App 483; 423 NW2d 237 (1988); Afshar v Zamarron, 209 Mich App 86; 530 NW2d 490 (1995). However, as this Court previously noted in Leite v Dow Chemical Co, 439 Mich 920 (1992), the two concepts are unrelated. Our courts are admonished to avoid conflating the two. United States v Corrick, 298 US 435, 440; 56 S Ct 829; 80 L Ed 1263 (1936). See People v Smith, 420 Mich 1; 360 NW2d 841 (1984); Ver Hoven Woodward Chevrolet, Inc v Dunkirk, 351 Mich 190; 88 NW2d 408 (1958); People v Rocha, 110 Mich App 1; 312 NW2d 657 (1981). “[T]he plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Worth v Seldin, 422 US 490, 499; 95 S Ct 2197; 45 L Ed 2d 343 (1975) (citing Tileston v Ullman, 318 US 44; 63 S Ct 493; 87 L Ed 603 [1943]). Kowalski v Tesmer, 543 US 125, 129; 125 S Ct 564; 160 L Ed 2d 519 (2004). Id. (citation omitted). Singleton v Wulff, 428 US 106; 96 S Ct 2868; 49 L Ed 2d 826 (1976). Powers v Ohio, 499 US 400, 411; 111 S Ct 1364; 113 L Ed 2d 411 (1991). Id.; Tesmer, supra at 130. 399 Mich 401, 416; 249 NW2d 102 (1976). In People v Rocha, 110 Mich App 1; 312 NW2d 657 (1981), the Court of Appeals rejected the defendant’s equal protection argument on the basis that the defendant could not assert the constitutional rights of a third party. Inexplicably, the Rocha panel did not cite or discuss this Court’s decision in Mary v Lewis, decided five years earlier. Rather, the panel relied on two law review articles in setting forth the requirements for third-party standing. See footnote 13. See Federated Publications, Inc v City of Lansing, 467 Mich 98; 649 NW2d 383 (2002); In re Midland Publishing Co, Inc, 420 Mich 148; 362 NW2d 580 (1984). See footnote 13. Petitioners’ amended petition maintains that petitioners are “unable to obtain reasonable access to no-fault insureds.” For the purposes of this opinion, we do not address whether this claimed injury is a legally protected interest, as required by Lee. Petitioners maintain that their members “provide reasonably necessary medical care” to appellants’ insureds. The patient-physician relationship is frequently deemed sufficiently intimate to permit third-parly standing. See Singleton, footnote 30 of this opinion (asserting rights of female patients regarding abortion); Griswold v Connecticut, 381 US 479; 85 S Ct 1678; 14 L Ed 2d 510 (1965) (asserting rights of married patients regarding contraceptives). See Warth v Seldin, supra, 422 US 499 n 10 (standing “bears close affinity to questions of ripeness”). See also 13A Wright, Miller & Cooper, Fed Practice & Procedure, § 3531.12, p 50, noting that the justiciability doctrines are “tied closely together.” See also Wilderness Society v Alcock, 83 F3d 386, 390 (CA 11, 1996), noting that the “confusion in the law of standing and ripeness” was “hardly surprising,” as both doctrines require actual or imminent injury. However, an “important distinction” existed between the two doctrines. See Renne v Geary, 501 US 312, 320; 111 S Ct 2331; 115 L Ed 2d 288 (1991), which noted that “[jjusticiability concerns not only the standing of litigants to assert particular claims, but also the appropriate timing of judicial intervention.” “[W]hen standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.” Flast v Cohen, 392 US 83, 99-100; 88 S Ct 1942; 20 L Ed 2d 947 (1968). “[Rjipeness is peculiarly a question of timing.” Blanchette v Connecticut Gen Ins Corps, 419 US 102, 140; 95 S Ct 335; 42 L Ed 2d 320 (1974). See also Navegar, Inc v United States, 322 US App DC 288, 292; 103 F3d 994 (1997) (ripeness “focuses on the timing of the action rather than on the parties seeking to bring it”); Peoples Rights Organization, Inc v City of Columbus, 152 F3d 522 (CA 6, 1998); Wilderness Society, supra at 390, noting that “[w]hen determining ripeness, a court asks whether this is the correct time for the complainant to bring the action.” (Emphasis in original.) Nat’l Wildlife, supra, 471 Mich 629. Appellants ask this Court to adopt the holding of Hunt v Washington State Apple Advertising Comm, 432 US 333; 97 S Ct 2434; 53 L Ed 2d 383 (1977), requiring additional elements to establish organizational standing. However, because we resolve this issue on ripeness grounds, we need not address the propriety of adopting Hunt. To the degree that petitioners seek relief based on the customary charges of their membership, the Court of Appeals panel below determined that petitioners’ argument failed in light of Advocacy Org for Patients & Providers v Auto Club Ins Ass’n, 257 Mich App 365, 377; 670 NW2d 569 (2003). See 262 Mich App 246 n 12. Advocacy Org was affirmed by this Court, with all six participating justices concluding that reasonable, rather than customary, fees are compensable. 472 Mich 91; 693 NW2d 358 (2005). Additionally, petitioners did not appeal the Court of Appeals ruling, nor did they file a cross-appeal. Therefore, the issue is not properly before us and will not be further reviewed. Therrian v Gen Laboratories, Inc, 372 Mich 487; 127 NW2d 319 (1964). As noted in footnote 45 of this opinion, the statute permits a medical provider to charge a reasonable amount for its services. MCL 500.3157 provides: A physician, hospital, clinic or other person or institution lawfully rendering treatment to an injured person for an accidental bodily injury covered by personal protection insurance, and a person or institution providing rehabilitative occupational training following the injury, may charge a reasonable amount for the products, services and accommodations rendered. The charge shall not exceed the amount the person or institution customarily charges for like products, services and accommodations in cases not involving insurance. See Nat’l Park Hospitality Ass’n v Dep’t of Interior, 538 US 803, 807; 123 S Ct 2026; 155 L Ed 2d 1017 (2003). The prudential considerations require that a court consider both “ ‘the fitness of the issues for judicial decision’ ” and “ ‘the hardship to the parties of withholding court consideration....’” Thomas v Union Carbide, supra at 581 (citation omitted). Nat’l Wildlife, supra, 471 Mich 615. See also Thomas v Union Carbide, supra at 579 (ripeness must be established “[a]s a threshold matter”). Warth v Seldin, 422 US 490, 499 n 10; 95 S Ct 2197; 45 L Ed 2d 343 (1975). Nasser v Auto Club Ins Ass’n, 435 Mich 33; 457 NW2d 637 (1990). Id. See Johnson v Muskegon Hts, 330 Mich 631, 633; 48 NW2d 194 (1951) (Courts generally “will not decide a case or question, in or on which there is no real controversy” because “ ‘[i]t is not our duty to pass on moot questions or abstract propositions.’ ” [Citation omitted.]).
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Memorandum. In this case, we examine the double-jeopardy concerns that are involved when a defendant who has committed a felony and a concurrent, single homicide is charged with and convicted of first-degree premeditated murder, first-degree felony-murder, and the felony underlying the felony-murder charge. Under the current case law, to avoid double-jeopardy implications, the defendant receives one conviction of first-degree murder, supported by two theories, and the conviction of the predicate felony underlying the felony murder is vacated. See People v Wilder, 411 Mich 328; 308 NW2d 112 (1981); People v Bigelow 229 Mich App 218; 581 NW2d 744 (1998). The defendant thus receives one conviction and one sentence for having committed one crime. In this case, the trial court followed that procedure in part, and the Court of Appeals affirmed in part and vacated in part, but invited us to consider modifying Bigelow. 265 Mich App 68; 692 NW2d 722 (2005). We decline to do so, affirming the judgment of the Court of Appeals, and we provide a brief analysis of our reasoning. The prosecutor in this case is concerned that if the judgment vacates defendant’s larceny conviction, in the unlikely situation that defendant’s conviction of murder is overturned for some reason unrelated to his conviction of larceny, defendant could “go free” even though there is no question that he was found guilty of larceny. Although such a situation is unprecedented in Michigan case law, we find reassurance in the federal law that these concerns are groundless. Although the United States Supreme Court has not considered this specific context, it came close in Rutledge v United States, 517 US 292; 116 S Ct 1241; 134 L Ed 2d 419 (1996). We believe Rutledge presents the correct method of handling this case. In Rutledge, the defendant was convicted of both conducting a continuing criminal enterprise (CCE) and conspiracy to distribute a controlled substance and was sentenced to two concurrent life sentences. The Court held that under the common-elements test of Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), the conspiracy was a lesser included offense of CCE. The Court then found that the defendant could not receive two sentences and that the second conviction, even without a second sentence, was presumptively impermissible under Ball v United States, 470 US 856; 105 S Ct 1668; 84 L Ed 2d 740 (1985). Next, the Court addressed the government’s concern that without a “backup” conviction, the defendant might escape punishment altogether if he successfully challenged the CCE conviction in a manner that did not affect his conspiracy conviction. Rutledge at 305. The Court found “no reason why this pair of greater and lesser offenses should present any novel problem,” and noted that “federal appellate courts appear to have uniformly concluded that they may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense.” Id. at 306. Justice Stevens continued, “This Court has noted the use of such a practice with approval.” Id. Under this approach, if defendant’s murder conviction is reversed on grounds only affecting the murder element, entry of a judgment of conviction of larceny may be directed by the appellate court. Such was the practice of this Court in, for example, People v Randolph, 466 Mich 532, 553; 648 NW2d 164 (2002), and People v Bearss, 463 Mich 623, 631; 625 NW2d 10 (2001). We continue to support this approach and thus affirm defendant’s conviction. Affirmed. Taylor, C.J., and Cavanagh, Kelly, Young, and MARKMAN, JJ., concurred. Const 1963, art 1, § 15. The Court did not ultimately decide whether the second conviction was impermissible under Ball alone because the fact that each conviction carried its own $50 “special assessment” established a second punishment, even without a second prison term. Rutledge at 301. In all other respects, the application for leave to appeal in Docket No. 128533 is denied.
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MEMORANDUM. Defendant was convicted of assault with intent to do great bodily harm less than murder, MCL 750.84, following a jury trial. The properly scored recommended minimum sentence guidelines range for defendant’s offense provided for a term of five to 28 months’ imprisonment, thus placing defendant in a so-called “straddle cell.” The trial court sentenced defendant within the guidelines range to two to 15 years of imprisonment. On appeal, defendant argues that because his prior record variable (PRV) score alone placed him in a recommended minimum guidelines range of zero to 11 months, he is entitled to an intermediate sanction. Defendant contends that the trial court violated Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004), by engaging injudicial fact-finding to score the offense variables (OVs), thereby allegedly increasing his maximum sentence from an intermediate sanction to a prison term. We reject defendant’s and the dissent’s contention and affirm defendant’s sentence. In Apprendi v New Jersey, 530 US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000), the United States Supreme Court held that under the Sixth and Fourteenth amendments of the United States Constitution, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely, supra at 303, the Court held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Emphasis deleted.) In regard to indeterminate sentencing schemes such as Michigan’s, the Blakely Court reaffirmed that a sentencing court may engage in judicial fact-finding in order to impose a minimum term within the statutory range. See People v Drohan, 475 Mich 140; 715 NW2d 778 (2006). The Blakely Court explained: Of course indeterminate schemes involve judicial fact-finding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence —and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. [Blakely, supra at 309 (emphasis in original).] Thus, a sentencing court in an indeterminate sentencing scheme does not violate Blakely by engaging in fact-finding to determine the minimum term of a defendant’s indeterminate sentence unless the fact-finding increases the statutory maximum sentence to which the defendant had a legal right. In Michigan, when the high end of the recommended minimum guidelines range is 18 months or less, MCL 769.34(4) (a) requires a sentencing court, absent articulation of substantial and compelling reasons, to impose an intermediate sanction, which may include a jail term of no more than 12 months: If the upper limit of the recommended minimum sentence range for a defendant determined under the sentencing guidelines set forth in chapter XVII is 18 months or less, the court shall impose an intermediate sanction unless the court states on the record a substantial and compelling reason to sentence the individual to the jurisdiction of the department of corrections. An intermediate sanction may include a jail term that does not exceed the upper limit of the recommended minimum sentence range or 12 months, whichever is less. [Emphasis added.] MCL 777.21 explicitly requires the court to consider the OVs, the PRVs, and the offense class to determine a defendant’s recommended minimum guidelines range. Under our statutory scheme, a defendant has no legal right to have the minimum sentence calculated using only a fraction of the statutorily enumerated factors. Thus, under MCL 769.34(4)(a), a defendant is not legally entitled to an intermediate sanction until after the OVs have been scored and those OVs, in conjunction with the PRVs and the offense class, indicate that the upper limit of the defendant’s guidelines range is 18 months or less. In other words, a defendant’s legal right to an intermediate sanction arises from properly scored guidelines, including the scoring of the OVs. A sentencing court does not violate Blakely and its progeny by engaging in judicial fact-finding to score the OVs to calculate the minimum recommended sentencing guidelines range, even when the defendant’s PRV score alone would have placed the defendant in an intermediate sanction cell. In this case, properly scored guidelines placed defendant in a recommended minimum sentence range of five to 28 months in prison. This placed defendant in a “straddle cell,” in which the trial court was permitted to choose between imposing an intermediate sanction or a prison term. MCL 769.34(4)(c). Thus, defendant faced a statutory maximum sentence of 15 years in prison for his conviction of assault with intent to do great bodily harm less than murder as a second-offense habitual offender, MCL 750.84; MCL 769.10. Because the properly scored guidelines range did not entitle defendant to an intermediate sanction, the trial court did not violate Blakely by scoring the OVs before imposing a prison sentence within the guidelines. Accordingly, we affirm defendant’s sentence. In all other respects, defendant’s application for leave to appeal is denied, because we are not persuaded that this Court should review the remaining questions presented. Taylor, C.J., and Weaver, Corrigan, Young, and MARKMAN, JJ., concurred. When a defendant is placed in a “straddle cell,” the sentencing court has the option of imposing an intermediate sanction or a prison term. MCL 769.34(4)(c) provides: If the upper limit of the recommended minimum sentence exceeds 18 months and the lower limit of the recommended minimum sentence is 12 months or less, the court shall sentence the offender as follows absent a departure: (i) To imprisonment with a minimum term within that range. (ii) To an intermediate sanction that may include a term of imprisonment of not more than 12 months. When the upper limit of the guidelines range is 18 months or less, the sentencing court must impose an intermediate sanction. MCL 769.34(4)(a). An “intermediate sanction” can mean a number of things, but excludes a prison sentence. People v Stauffer, 465 Mich 633, 635; 640 NW2d 869 (2002); MCL 769.31(b). MCL 777.21(1) provides: For an offense enumerated in part 2 of this chapter, determine the recommended minimum sentence range as follows: (a) Find the offense category for the offense from part 2 of this chapter. From section 22 of this chapter, determine the offense variables to be scored for that offense category and score only those offense variables for the offender as provided in part 4 of this chapter. Total those points to determine the offender’s offense variable level. (b) Score all prior record variables for the offender as provided in part 5 of this chapter. Total those points to determine the offender’s prior record variable level. (c) Find the offense class for the offense from part 2 of this chapter. Using the sentencing grid for that offense class in part 6 of this chapter, determine the recommended minimum sentence range from the intersection of the offender’s offense variable level and prior record variable level. The recommended minimum sentence within a sentencing grid is shown as a range of months or life. Contrary to the dissent’s contention, our holding is consistent with Ring v Arizona, 536 US 584; 122 S Ct 2428; 153 L Ed 2d 556 (2002). In Ring the Court held that Arizona’s sentencing scheme violated the defendant’s Sixth Amendment rights where the sentencing court increased the defendant’s statutory maximum sentence of life imprisonment to a death sentence on the basis of a judicial finding of aggravating factors. This case does not involve an increase of defendant’s statutory maximum sentence on the basis of judicial findings. Instead, the trial court merely scored defendant’s OVs before imposing a sentence within the statutory range.
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YOUNG, J. The question presented in this case is whether the Washtenaw Circuit Court (the circuit court) properly withheld from disclosure a letter (Doyle letter) written by Eastern Michigan University’s (EMU) Vice President of Finance Patrick Doyle to a member of defendant EMU Board of Regents, Jan Brandon. The circuit court held that the letter was exempt as a frank communication under the Freedom of Information Act (FOIA), MCL 15.231 et seq. The Doyle letter was written at Brandon’s request as part of defendant’s investigation of allegations that the then-president of EMU, Samuel Kirkpatrick, had run the construction of a new president’s house (University House project) precipitously over budget. Applying the balancing test set forth in the statutory language of MCL 15.243(l)(m), the frank communica tion exemption, the circuit court concluded that the public interest in encouraging frank communication clearly outweighed the public interest in disclosure and, therefore, that the Doyle letter was exempt from disclosure. The Court of Appeals affirmed in a split decision, determining that the circuit court did not commit clear error. We granted leave to appeal. We affirm the result reached by the Court of Appeals, but we take this opportunity to clarify the appropriate standard of review of discretionary determinations in FOIA cases. In Federated Publications, Inc v City of Lansing, we held that appellate courts must review the trial court’s discretionary determinations in FOIA cases for clear error. We continue to hold that the clear error standard of review is appropriate where the parties challenge the factual findings of the trial court. However, where the parties do not dispute the underlying facts but rather challenge the trial court’s exercise of discretion, we hold that an appellate court must review that determination for an abuse of discretion, which this Court now defines as a determination that is outside the principled range of outcomes. In this case, the parties do not dispute the underlying facts. Rather, they dispute the import of those facts as they factor into the weighted balancing test of the frank communication exemption. Accordingly, we review the circuit court’s decision to affirm the nondisclosure of the Doyle letter for an abuse of discretion. We hold that the circuit court reached a decision that was within the principled range of outcomes when it determined the balance of competing interests favored nondisclosure and that it therefore did not abuse its discretion. We also hold that, pursuant to MCL 15.244, the public body must “to the extent practicable, facilitate a separation of exempt from nonexempt information” and “make the nonexempt material available for examination and copying.” Accordingly, we remand this case to the circuit court to separate this material from the Doyle letter and make the nonexempt material available to plaintiff. I. FACTS AND PROCEDURAL HISTORY Established by the Michigan Constitution, which confers upon it “general supervision of the institution and the control and direction of all expenditures from the institution’s funds,” defendant has broad constitutional and statutory oversight to govern Eastern Michigan University. Pursuant to this constitutional mandate, defendant investigated the University House project controversy as it unfolded in 2003. The Doyle letter arose out of this internal investigation. Plaintiff Herald Company, Inc., doing business as Booth Newspapers, Inc., and the Ann Arbor News, sent FOIA requests to defendant on September 10 and 11, 2003, as it conducted its own investigation, seeking numerous documents related to the University House project. In an October 1, 2003, letter, defendant granted plaintiffs FOIA requests except where defendant indicated either the documents sought did not exist or were in the possession of a separate corporate entity, the EMU Foundation. Defendant sent a second letter to plaintiff on October 7, 2003, that specifically identified the Doyle letter and advised plaintiff that it would not disclose the letter pursuant to the frank communication exemption of the FOIA. On February 5, 2004, plaintiff filed simultaneously in the circuit court a complaint and an emergency motion to compel disclosure of the Doyle letter under the FOIA. After a hearing and viewing the letter in camera, the circuit court issued a written opinion and concluded that the Doyle letter met the statutory definition of a frank communication. In resolving the required statutory balancing test, the circuit court concluded that the balance favored nondisclosure. It permitted defendant to withhold the Doyle letter in its entirety. In a split, published decision, the Court of Appeals affirmed the circuit court. Chief Judge WHITBECK filed a dissent, arguing that the circuit court committed clear error by misconstruing the balancing test. We subsequently granted plaintiffs application for leave to appeal. II. STANDARD OF REVIEW This Court reviews questions of statutory interpretation de novo. To effectuate the intent of the Legislature, we interpret every word, phrase, and clause in a statute to avoid rendering any portion of the statute nugatory or surplusage. In addition, certain FOIA provisions require the trial court to balance competing interests. In Federated, this Court announced the appropriate standard of review of discretionary determinations in FOIA cases. While discussing both factual findings and discretionary determinations, we stated in Federated that when an appellate court is called upon to evaluate the trial court’s discretionary determinations, it must defer to the trial court’s decision unless there was clear error. Clear error exists only when the appellate court “is left with the definite and firm conviction that a mistake has been made.” Federated inadvertently misstated the appropriate standard of review for discretionary determinations in FOIA cases. In Michigan, the clear error standard has historically been applied when reviewing a trial court’s factual findings whereas the abuse of discretion standard is applied when reviewing matters left to the trial court’s discretion. We take this opportunity to refine our position in Federated. First, we continue to hold that legal determinations are reviewed under a de novo standard. Second, we also hold that the clear error standard of review is appropriate in FOIA cases where a party challenges the underlying facts that support the trial court’s decision. In that case, the appellate court must defer to the trial court’s view of the facts unless the appellate court is left with the definite and firm conviction that a mistake has been made by the trial court. Finally, when an appellate court reviews a decision committed to the trial court’s discretion, such as the balancing test at issue in this case, we hold that the appellate court must review the discretionary determination for an abuse of discretion and cannot disturb the trial court’s decision unless it falls outside the principled range of outcomes. III. THE FOIA AND THE FRANK COMMUNICATION EXEMPTION The Legislature codified the FOIA to facilitate disclosure to the public of public records held by public bodies. However, by expressly codifying exemptions to the FOIA, the Legislature shielded some “affairs of government” from public view. The FOIA exemptions signal particular instances where the policy of offering the public full and complete information about government operations is overcome by a more significant policy interest favoring nondisclosure. In many of these instances, the Legislature has made a policy determination that full disclosure of certain public records could prove harmful to the proper functioning of the public body. Indeed, in Federated we instructed that a circuit court “should remain cognizant of the special consideration that the Legislature has accorded an exemptible class of records.” The frank communication exemption at issue in this case provides that a public body may exempt from disclosure as a public record [c]ommunications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosureN The frank communication exemption ultimately calls for the application of a weighted balancing test where the circuit court must weigh the public interest in disclosure versus the public interest in encouraging frank communication. Under the plain language of the provision, these competing interests are not equally situated, and the Legislature intended the balancing test to favor disclosure. The Legislature’s requirement that the public interest in disclosure must be clearly outweighed demonstrates the importance it has attached to disclosing frank communications absent significant, countervailing reasons to withhold the document. Hence, the public record is not exempt under the frank communication exemption unless the public body demonstrates that the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure. In addition to the statutory language initially favoring disclosure of a frank communication, it is important to consider carefully other words and phrases in the statutory text. First, we must be cognizant of the competing interests at stake in the particular instance Rather than speak in platitudes and generalities, the parties and the courts must consider how the unique circumstances of the “particular instance” affect the public interest in disclosure versus the public interest in encouraging frank communication. Second, the Legislature decided that the public has an interest in encouraging frank communication so that public officials’ ongoing and future willingness to communicate frankly in the course of reaching a final agency determination is an essential component in the balancing test. Therefore, when a court interprets the “particular instance” in the frank communication exemption, it must remember that there is a valid public interest that officials and employees of a public body aspire to communicate candidly when the public body considers an issue that is “preliminary to a final agency determination of policy or action.” Before the trial court may apply the balancing test, the public body must demonstrate to the satisfaction of the trial court that the public record is a “frank communication.” Drawing from the statutory language, the Court of Appeals has held that the public body must establish two things. First, the document must cover other than purely factual materials, and, second, the document must be prehminary to a final determination of policy or action. We agree with the Court of Appeals precedent, but we conclude that a third qualification is apparent in the statutory language: the document sought must also be a communication or note of an advisory nature within a public body or between public bodies. Therefore, a document is a “frank communication” if the trial court finds that it (1) is a communication or note of an advisory nature made within a public body or between public bodies, (2) covers other than purely factual material, and (3) is preliminary to a final agency determination of policy or action. If, in the trial court’s judgment, the document fails any one of these threshold qualifications, then the frank communication exemption simply does not apply. For example, if the document is composed entirely of purely factual materials, it is not a frank communication, and the public body must disclose the document to the requesting party unless it has asserted an alternate, valid basis for nondisclosure. In this case, the circuit court concluded that the Doyle letter was a frank communication. It found that defendant carried its burden of proving (1) that the Doyle letter was of an advisory nature and covered other than purely factual materials, (2) the communication was made between officials and employees of public bodies, and (3) the communication was preliminary to a final agency determination. The circuit court then moved to the balancing test and concluded that the balance of interests favored nondisclosure. The court offered four reasons to support the balance it struck. Its third and fourth reasons specifically address the balance of interests favoring nondisclosure of the Doyle letter: (1) The letter contains substantially more opinion than fact, and the factual material is not easily severable from the overwhelming majority of the contents: Doyle’s views concerning the President’s involvement with the University House project. (2) The letter is preliminary to a final determination of policy or action. The communication was between officials of public bodies. The letter concerns Defendant’s investigation and ultimate determination of what action, if any, would be taken regarding the University House controversy. (3) The public interest in encouraging frank communications within the public body or between public bodies clearly outweighs the public interest in disclosure. Plaintiffs specific need for the letter, apparently to “shed light on the reasons why a highly respected public official resigned in the wake of EMU being caught misleading the public as to the true cost of the President’s house”, or the public’s general interest in disclosure, is outweighed by Defendant’s interest in maintaining the quality of its deliberative and decision-making process. (4) Defendant conducted an investigation and recently published a “voluminous and exhaustive report” concerning its findings regarding the University House project, a copy of which was furnished to Plaintiff. The circuit court identified the two competing interests. On one hand, plaintiff had an interest in obtaining the letter to “shed light” on President Kirkpatrick’s involvement in the University House project. On the other hand, defendant needed to preserve its “deliberative and decision-making process” to carry out an effective internal investigation. The circuit court found that defendant had published and distributed to plaintiff a “voluminous and exhaustive report” of financial data related to the controversy. Defendant hired Deloitte & Touche to audit the expenditures related to the University House project and disseminated this audit to plaintiffs about the time plaintiffs filed suit to obtain the Doyle letter. In the circuit court’s judgment, the wave of data related to the University House project flowing from this independent report lessened plaintiffs interest in disclosure of the Doyle letter and tipped the balance in defendant’s favor such that the public interest in encouraging frank communication clearly outweighed the public interest in disclosure. IV THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION Reiterating what we said in Federated, we note that the trial court must determine whether defendant met its burden of proof that a public record is exempt. In this case, the circuit court found that defendant met its burden of showing that the public interest in encouraging frank communication clearly outweighed the interest of disclosure in “the particular instance.” On appeal we are to evaluate that conclusion for an abuse of discretion to determine if that decision falls outside the principled range of outcomes. Plaintiff claims that two “outcome determinative” facts tip the balance of interests decisively in favor of disclosure and should compel this Court to find the circuit court committed clear error. First, bringing to public light any criticism supposedly leveled by Doyle against President Fitzgerald in the letter would foster accountability and facilitate good government, which plaintiff contends is the core purpose of the FOIA. Second, Doyle wrote the letter in view of his impending departure, so in this “particular instance” defendant has a relatively weak interest in encouraging frank communication. According to plaintiff, because the balancing test is already tilted in favor of disclosure, it is inconceivable that the circuit court’s decision to withhold the Doyle letter did not amount to error requiring reversal. Reviewing the circuit court’s decision for an abuse of discretion rather than clear error, we reject, first, plaintiff s blanket assertion that every frank communication that criticizes a public official must be disclosed to assure good governance and accountability and accomplish the “core purpose” of the FOIA. That a frank communication contains criticism of a public official or a public body, which is unremarkable considering that these are frank communications, certainly factors into the balancing test, but it cannot singularly serve to outweigh the public interest in nondisclosure. Were we to adopt such a rule, we would eviscerate the frank communication exemption. We doubt that officials within a public body would offer candid, written feedback, or that they would do so for very long, if that feedback would invariably find its way into the public sphere. If the frank communication exemption can never protect a candid communication, which almost assuredly contains unfiltered criticism of policies and people, then we will have rendered this FOIA exemption a nullity. We agree with the Court of Appeals majority that defendant “need[s] more than cold and dry data to do its job, it need[s] the unvarnished candid opinion of insiders to make policy judgments and, particularly, to conduct sensitive investigations of top administrators” and to conclude otherwise would “sound the death knell of this vital tool for board members to discharge their oversight roles for the benefit of the public.” As for plaintiffs second “outcome determinative” consideration, we are not persuaded that Doyle’s retirement marginalized the public interest in encouraging frank communication within the public body. In plaintiffs view, Doyle’s retirement diminished the public interest in nondisclosure because, with Doyle departing, he would suffer no employment-related retribution by disclosing his honest feedback. By emphasizing this fact, plaintiff erroneously conflates the interests of the disclosing person, one member of the public body, with the public body’s need, as an institution, to encourage frank communication in this “particular instance.” Quite simply, Doyle’s resignation does not negate defendant’s need to investigate thoroughly this controversy and future controversies. That one out-going member of defendant’s administration might not be inhibited by the possibility of disclosure does not allay the concern that every other member of defendant’s administration may harbor if Doyle’s communications, and possibly theirs, are disclosed for public consumption. This Court has recognized, in a related FOIA context, that internal investigations are perilous precisely because employees are frequently afraid to make candid disclosures: “1. Internal investigations are inherently difficult because employees are reluctant to give statements about the actions of fellow employees. “2. If their statements would be a matter of public knowledge they might refuse to give any statements at all or be less than totally forthcoming and candid. “3. Also, disclosure could be detrimental to some employees. “4. Public disclosure of records relating to internal investigations into possible employee misconduct would destroy or severely diminish the Sheriff Department’s ability to effectively conduct such investigations.”[ ] Defendant was investigating the possible misconduct of the most senior member of management, President Kirkpatrick, and, in doing so, sought Doyle’s candid observations regarding the matter. Disclosure of Doyle’s letter would foster a fear among university officials that they could no longer communicate candidly about a sensitive topic without their written communications being disclosed to the public. This would create a chilling effect that would surely dry up future frank communications. Thus, the departure of Doyle has very little bearing on the institutional interests protected by the frank communication exemption. Plaintiff would transform the weighted balancing test of the frank communication exemption into an irrebuttable presumption of disclosure. We decline to adopt plaintiffs position. The plain language of the balancing test requires the public interest in encourag ing frank communication to clearly outweigh the public interest in disclosure, but it does not tacitly create an insurmountable obstacle to the public body’s seeking to withhold a frank communication from disclosure. The circuit court in this case acknowledged that the frank communication exemption required a weighted balancing test. Therefore, we cannot conclude that it misapprehended the weighted balancing test when it exempted the Doyle letter from disclosure. We do not minimize the general public interest in the disclosure of frank communications. The Legislature explicitly codified within the frank communication exemption its policy determination that a frank communication must be disclosed to the public unless the public interest in disclosure is clearly outweighed. Moreover, the public has a keen interest in receiving information regarding the alleged misuse of public funds, which, if such misuse were true, might undermine the public’s trust and confidence in the public body. If public resources are squandered under their watch, then it calls into question whether members of the public body are fit to discharge the responsibilities that have been committed to them on behalf of the general public. However, we do not hypothesize generally whether the public interest in disclosure should prevail over the public interest in nondisclosure. We only consider the balance struck by the circuit court in the context of this “particular instance.” The circuit court reviewed the evidence and made appropriate findings of fact pertaining to the Doyle letter. It found that defendant had released a “voluminous and exhaustive report” that tipped the balance in favor of nondisclosure because the Deloitte audit disclosed for the public record pertinent financial data related to the University House project. Without question, the circuit court’s decision is controversial. But a circuit court is permitted to reach a controversial conclusion with which reasonable people and reasonable appellate courts may disagree without abusing its discretion and reaching a result outside the principled range of outcomes. Members of this Court, members of the Court of Appeals, or another circuit judge might have resolved this balance of interests differently, but the circuit court did not abuse its discretion. V SEPARATION OF EXEMPT AND NONEXEMPT MATERIAL For the foregoing reasons, we affirm the circuit court’s conclusion that the Doyle letter is exempt as a frank communication. However, pursuant to MCL 15.244, we hold that the exempt and nonexempt material within the Doyle letter must be separated and the latter disclosed to plaintiff. The FOIA requires that [i]f a public record contains material which is not exempt under section 13, as well as material which is exempt from disclosure under section 13, the public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying.[ ] The public body is assigned the responsibility, “to the extent practicable, [to] facilitate a separation of exempt from nonexempt information.” This provision applies without exception to every public record. Accordingly, we remand this matter to the circuit court with the direction that it separate the opinion from the purely factual material and disclose the latter to plaintiff. VI. CONCLUSION The circuit court did not abuse its discretion by determining that the public interest in frank communication clearly outweighed the public interest in disclosure. In this “particular instance,” defendant had a strong interest in preserving candid internal investigatory communications. Although Doyle may have retired soon after writing the letter, defendant maintained its interest in preventing a ripple effect of chilled communications during this or subsequent investigations. The public interest in disclosure is favored initially in the weighted balancing test. However, the circuit court found that defendant’s release of financial data mitigated that interest. As such, we cannot conclude that the circuit court abused its discretion. Accordingly, we affirm the grant of summary disposition in favor of defendant and remand this matter to the circuit court to separate the exempt and nonexempt information in the Doyle letter, to the extent practicable, and make the nonexempt material available to plaintiff. TAYLOR, C.J., and CORRIGAN and MARKMAN, JJ., concurred with Young, J. 467 Mich 98; 649 NW2d 383 (2002). City of Novi v Robert Adell Children’s Funded Trust, 473 Mich 242, 254; 701 NW2d 144 (2005), quoting People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003) (“Discretion is abused when the decision results in ‘an outcome falling outside this principled range of outcomes.’ ”). Const 1963, art 8, § 6. MCL 390.553. In the September 10, 2003, FOIA request, plaintiff sought two categories of correspondence: 1. Copies of all correspondence, including but not limited to letters, reports, memos and e-mails, to and from the following parties since Jan. 1, 2002, regarding the new University House on campus: • Vice President for Business and Finance Patrick Doyle or other staff members of the Office of Business and Finance. • The EMU Board of Regents. • EMU President Samuel Kirkpatrick. 2. Copies of all correspondence, including but not limited to letters, reports, memos and e-mails, between Vice President for Business and Finance Patrick Doyle to and from the EMU Board of Regents, EMU President Samuel Kirkpatrick and/or the Office of Human Resources, regarding Doyle’s recent resignation and-or retirement. In the September 11, 2003, FOIA request, plaintiff sought all (1) budgets, (2) bank accounts, (3) invoices, (4) change orders, (5) bids, (6) funding sources, (7) board of regents resolutions, (8) and fees, salary, or other income paid to Pamela Kirkpatrick, wife of EMU President Samuel Kirkpatrick, related to the University House project. 265 Mich App 185; 693 NW2d 850 (2005). 472 Mich 928 (2005). The parties were instructed to brief: (1) whether the Court of Appeals correctly applied the appropriate standard of review; (2) whether the Washtenaw Circuit Court clearly erred in applying the § 13(l)(m) FOIA exemption, MCL 15.243(l)(m), to the public record in question; and (3) whether purely factual materials, if any, contained within the public record were properly included within the scope of the exemption. Federated, supra at 101. State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002). For example, in addition to the weighted balancing test in the frank communication exemption, the Legislature codified FOIA balancing tests at MCL 15.243(l)(c), (k), (n), (s), and (y). Federated, supra at 101. Id. at 107. We disagree with Justice Cavanagh’s argument that the abuse of discretion standard is inappropriate because the plaintiff has not and cannot view the contents of the withheld document. Although the plaintiff does not know the factual content of a requested document, such is the nature of litigation under the FOIA. This asymmetry does not reveal a defect in the abuse of discretion standard of review. Justice Cavanagh does not disagree that, under Michigan’s traditional jurisprudence, discretionary determinations are reviewed for abuse of discretion, and he does not answer how, under the clear error standard, the plaintiff could better challenge facts of which it is unaware. Consistent with our law, it is more appropriate for appellate courts to consider whether the trial court abused its discretion when it makes a discretionary determination in light of the constellation of known facts that form the “particular instance.” Both parties concede that the Doyle letter contains Doyle’s written impressions about the University House project, and hence its legal status as a “frank communication,” and that the audit released a flood of financial information also pertaining to the project. It is the importance of the former in light of the latter that is disputed by the parties. Resolving this dispute in the context of the statutory weighted balancing test requires the trial court to make a judgment call. Therefore, we review that judgment call for an abuse of discretion. See, e.g., Federated, supra at 106; In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989); MCR 2.613(C). See, e.g., Babcock, supra at 265, 268-270; People v Jendrzejewski, 455 Mich 495, 500; 566 NW2d 530 (1997); Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 583; 624 NW2d 180 (2001). Cf. Babcock, supra at 265 (“whether a factor exists [fact question] is reviewed for clear error ... whether a reason is substantial and compelling [discretionary determination] is reviewed for abuse of discretion”) (emphasis added). MCL 15.231(2) (“It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.”). See MCL 15.243. Federated, supra at 110. MCL 15.243(l)(m) (emphasis added). Michigan is not alone in valuing and protecting frank communication. As aptly noted by the Court of Appeals majority, other state legislatures and the United States Congress have recognized that a public agency’s sensitive, internal deliberations must be granted some level of protection from public disclosure to promote the quality of those deliberations and to ensure overall good governance by the public agency. See, e.g., 5 USC 552(b)(5); Cal Gov’t Code 6254(a); Colo Rev Stat 24-72-204(2)(a)(XIII); Conn Gen Stat l-210(b)(l); Hawaii Rev Stat 92F-13(3); Ind Code 5-14-3-4(b)(6); Ky Rev Stat Ann 61.878(l)(j); Wash Rev Code 42.17.310(1)6); W Va Code 29B-l-4(a)(8); Wyo Stat Ann 16-4-203(b)(v). Cf. Federated, supra at 110, interpreting “in the particular instance” in a different FOIA context. If the public body denies the requesting party access to a public record, and the requesting party commences an action in the trial court, “the burden is on the public body to sustain its denial.” MCL 15.240(4) (emphasis added). See Herald Co, Inc v Ann Arbor Public Schools, 224 Mich App 266, 274; 568 NW2d 411 (1997), citing Milford v Gilb, 148 Mich App 778, 782; 384 NW2d 786 (1985). Plaintiff concedes that the Doyle letter is a frank communication. It challenges only the application of the weighted balancing test. Herald Co, 265 Mich App 202-203, 205. Kent Co Deputy Sheriffs Ass’n v Kent Co Sheriff, 463 Mich 353, 365-366; 616 NW2d 677 (2000) (citation omitted). MCL 15.244(1). MCL 15.244(2).
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PER CURIAM. This case concerns the appropriate interpretation of the definition of “operate” in the Michigan Vehicle Code. The Court of Appeals panel below interpreted the statute to essentially require exclusive control of a motor vehicle, and upheld the circuit court’s affirmance of the district court’s decision to quash the felonious driving charge against defendant. We hold that the plain language of the statute requires only “actual physical control,” not exclusive control of a vehicle. Because the prosecutor has shown probable cause that defendant was in actual physical control of the vehicle at the time of the incident, we reverse the judgment of the Court of Appeals and remand for trial. FACTS AND PROCEDURAL HISTORY For purposes of the preliminary examination, the parties stipulated to the following facts: Defendant was a passenger in the vehicle his girlfriend was driving. As she drove, the couple argued. During the argument, defendant grabbed the steering wheel and turned it. When the defendant wrenched the steering wheel, the vehicle veered off the road, struck a jogger and caused the jogger severe injuries. The prosecutor charged defendant with one count of felonious driving. However, the district court refused to bind defendant over for trial after the preliminary examination because it concluded that the prosecution had not established that the statute proscribed defendant’s conduct. The circuit court affirmed the district court’s decision because defendant did not have complete control of the vehicle’s movement. The Court of Appeals affirmed in a published opinion per curiam, holding that defendant was merely interfering with his girlfriend’s operation of the vehicle, but was not operating the vehicle himself. The prosecutor sought leave to appeal, and this Court scheduled and heard oral arguments on whether to grant the application. In lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals and remand for trial. STANDARD OF REVIEW This Court reviews questions of statutory interpretation de novo. In order to bind a defendant over for trial, the prosecutor must establish probable cause, which requires a quantum of evidence “ ‘sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief ” of the accused’s guilt on each element of the crime charged. A district court’s decision declining to bind a defendant over is reviewed for an abuse of discretion. ANALYSIS The felonious driving provision of the Michigan Vehicle Code provides: A person who operates a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, carelessly and heedlessly in willful and wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner that endangers or is likely to endanger any person or property resulting in a serious impairment of a body function of a person, but does not cause death, is guilty of felonious driving punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.[ ] The issue in this case is whether defendant was “operating” the vehicle within the meaning of the statute. To ascertain the meaning of a statutory term, this Court construes the term reasonably, according to its plain and ordinary meaning. The Michigan Vehicle Code specifically defines “operate” as “being in actual physical control of a vehicle regardless of whether or not the person is licensed under this act as an operator or chauffeur.” Similarly, the code defines “operator” as “every person, other than a chauffeur, who is in actual physical control of a motor vehicle upon a highway.” The Court of Appeals accurately quoted the relevant statutory definitions and utilized a dictionary definition in order to ascertain the common meaning of “control.” The panel held that “control” “means ‘power or authority to guide or manage.’ ” We agree that this is an appropriate definition of the statutory term “control.” However, the panel did not correctly apply the common meaning of the statutory terms to the facts in this case. Instead, the panel concluded that “[although defendant’s act caused the vehicle to veer off the road, defendant did not have the actual physical control of the vehicle, i.e., the power or authority to guide or manage the vehicle.” On the contrary, we hold that causing the vehicle to change direction and “veer off the road” squarely meets the statutory requirement of actual physical control, which is understood to mean the “power ... to guide” the vehicle. Compounding its erroneous application of the common understanding of the statutory terms at issue, the Court of Appeals panel looked beyond the appropriate defined meaning of “operate” to examine how that term had been interpreted in a case involving an insurance contract. The Court of Appeals panel cited Farm Bureau Gen Ins Co v Riddering to buttress its conclusion that “actual physical control” of a vehicle requires control over “all functions necessary to make the vehicle operate.” In Riddering, a woman grabbed the steering wheel of the car in which she was riding, causing the car to collide with a tree. The other passengers in the car sustained severe injuries and filed an action against her. The woman’s homeowner’s insurance provider refused to defend the lawsuit because the policy specifically excluded coverage for liability arising out of the “operation” of a vehicle. The Riddering panel held that the insurer must provide coverage, reasoning that “[operation includes control over all the parts that allow the vehicle to move, not just the steering function.” Therefore, the panel concluded that the woman was not “operating” the vehicle for purposes of the insurance policy. The Court of Appeals panel below found Riddering “analogous” and held that a “passenger who grabbed and turned the steering wheel without permission was interfering with the operation of the vehicle, not operating it.” The Court of Appeals panel erred in relying on Riddering because Riddering is entirely inapposite for a number of reasons. First, basic principles of statutory construction require that courts construe statutory terms according to their plain or common meanings. As noted, the Michigan Vehicle Code defines “operate” as “actual physical control.” Because the insurance policy did not use that definition, the Riddering panel never discussed the plain or common meaning of “actual physical control.” As such, the Riddering panel’s interpretation of the undefined word “operate” in the insurance contract is not pertinent to an interpretation of the statutorily defined term “operate.” Second, the Riddering panel arrived at its conclusion that the contract term “operate” meant “complete control” of the vehicle because, misapplying the contra proferentem principle for contract interpretation, they construed the term “narrowly” and against the insurance company. The Riddering panel erred in resorting to this principle without first concluding that the term “operate” in the contract was ambiguous. Regardless of the proper application of specific rules of construction applicable to contracts, when construing statutes, our obligation is to construe the statutory term reasonably, according to its plain and ordinary meaning. Where, as here, the statutory terms are not ambiguous and are susceptible to a plain reading, in construing the statutory term “operate,” there is no principled basis for resorting to an inapposite insurance case as an aid to construction as suggested by the panel below and the dissent. The definition of “operate” contained in the Michigan Vehicle Code requires the exercise of “actual physical control” over a motor vehicle. Unlike the Court of Appeals, we cannot conclude that the statute effectively requires exclusive control “of all the functions necessary to make the vehicle operate,” because such a construction does not comport with the plain language of the statutory definition. As applied to the facts of this case, defendant’s act of grabbing the steering wheel and thereby causing the car to veer off the road clearly constitutes “actual physical control of a motor vehicle.” Utilizing the proper statu tory definition of “operate,” the prosecutor has clearly established sufficient probable cause that defendant violated MCL 257.626c. Because the district court applied an erroneous definition of the term “operate,” it abused its discretion by refusing to bind defendant over for trial at the preliminary examination. We therefore reverse the judgment of the Court of Appeals and remand this case for trial. Taylor, C.J., and Corrigan, Young, and Markman, JJ., concurred. MCL 257.1 et seq. MCL 257.626c. People v Yamat, 265 Mich App 555; 697 NW2d 157 (2005). 474 Mich 859 (2005). MCR 7.302(G)(1). People v Jones, 467 Mich 301, 304; 651 NW2d 906 (2002). People v Yost, 468 Mich 122, 126; 659 NW2d 604 (2003), quoting People v Justice (After Remand), 454 Mich 334, 344; 562 NW2d 652 (1997). People v Goecke, 457 Mich 442, 463; 579 NW2d 868 (1998). MCL 257.626c. Veenstra v Washtenaw Country Club, 466 Mich 155, 160; 645 NW2d 643 (2002); MCL 8.3a. MCL 257.35a. MCL 257.36. See also MCL 257.13, which provides, “ ‘Driver’ means every person who drives or is in actual physical control of a vehicle.” Yamat at 557, quoting Webster’s New Collegiate Dictionary (1980). Yamat at 557. While “control” is the critical component of the statutory definition, the definition also includes the words "actual,” which means “existing in act, fact, or reality; real,” Random House Webster’s College Dictionary (1997), p 14, and “physical,” which means “of or pertaining to that which is material,” Id. at 983. These definitions lend further support to the conclusion that defendant’s act of grabbing the steering wheel and wrenching it conform to the statutory definition of “operate.” 172 Mich App 696; 432 NW2d 404 (1988). Yamat at 558. Riddering at 703 (emphasis added). Yamat at 558, citing Riddering at 703. Unlike the dissent, we are hard-pressed to hold “that the law laid down in Riddering would affect this defendant’s understanding of what constitutes a crime under the circumstances of this case.” Post at 67. Surely, it is one of the stranger ideas the dissent has offered to suggest that, in the heat of an argument with his girlfriend, defendant wrenched the steering wheel of a moving vehicle in “reliance” on a Court of Appeals decision construing an insurance contract that he was not “operating” the vehicle within the meaning of the Michigan Vehicle Code. . MCL 8.3a; Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005). The contra proferentem principle is “[u]sed in connection with the construction of written documents to the effect that an ambiguous provision is construed most strongly against the person who selected the language.” Black’s Law Dictionary (5th ed), p 296. Id. Sotelo v Grant Twp, 470 Mich 95, 100; 680 NW2d 381 (2004). Remarkably, the dissent accuses the majority of ignoring the statutory definition of “operate,” yet the dissent approves of the Court of Appeals reliance on extraneous case law that construes the term “operate” in an insurance contract without reference to the statutory definition of “operate.” The dissent claims that we misconstrue the Court of Appeals decision by suggesting that it required “exclusive control” as a predicate for “operating” the vehicle. While the panel did not use the word “exclusive,” that is surely the import of its reliance on Riddering’s test that required “control over all the parts that allow the vehicle to move, not just the steering function.” Riddering at 703. This is amplified by the panel’s own holding that “[defendant could not have stopped or started the vehicle, nor could he have caused it to increase or decrease in speed. Defendant could not use any of the vehicle’s other instruments; therefore he was not in actual physical control of the vehicle.” Yamat at 557. The dissent would also require “exclusive control” because Justice Kelly finds persuasive the fact that the defendant had no “control” over even ancillary devices such as the turn signal and windshield wipers to demonstrate why his actions did not satisfy the Michigan Vehicle Code. Justice Kelly asserts that she does not advocate “exclusive control” because “[i]f two or more individuals agree to work the components of a vehicle together, then each is an operator.” Post at 70. While the dissent’s “cooperative operation” theory does not meet a strict definition of “exclusive,” it still requires a concerted effort to control all of the vehicle’s instruments. In fact, applying the dissent’s construction, because neither the driver nor the defendant had complete control over all of the car’s devices, nor agreed to work together, no one was operating this vehicle at the time it struck the jogger. Justice Kelly claims that the majority has incorrectly applied her analysis because defendant’s girlfriend remained in “control” despite defendant’s “interference.” It is difficult to square the dissent’s claim that the girlfriend was in control, despite not having control over the steering wheel, with the dissent’s argument that defendant did not have control because he could not control the vehicle’s ancillary devices. Clearly, defendant exercised the “power to guide” the vehicle, which is the plain meaning of control that the Court of Appeals cited and we adopt. It is the dissent that refuses to give “control” its natural meaning by requiring exclusive or complete control. Under the dissent’s construction of this phrase, when defendant grabbed the steering wheel and turned it, causing the vehicle to veer off the road and strike a jogger on the side of the road, he was merely “hindering” his girlfriend’s control over the vehicle because “he could not have activated the headlights or turn signals.” Post at 63. Contrary to the dissent’s arguments, the person who controls the steering wheel does “ ‘exercise restraint or direction over; dominate, regulate, or command’ ” a vehicle. Post at 60 (citation omitted). Specifically, the person who controls the steering wheel, like defendant, can command the vehicle to go in any direction he or she chooses. Arguing and causing a distraction to the driver is “hindering;” seizing the steering wheel when a car is in motion and causing the vehicle to change direction is an exercise of actual physical control. It simply strains credulity for the dissent to suggest that because the defendant did not have control of every ancillary device, such as the windshield wipers, defendant’s act of physically wrenching the steering wheel of the car was not an act of actual physical control. The dissent’s analysis is not advanced by suggesting that one who turns the steering wheel of a parked vehicle cannot exercise control. Post at 65. Here, defendant grabbed the wheel of a moving vehicle and, in so doing, caused it to change direction. Defendant’s action was one of “control” in every sense of the word unless, as does the dissent, one requires that there be complete or exclusive control.
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TAYLOR, C.J. At issue in this case is whether the Attorney General can appeal as an intervenor in this Court on behalf of the people and a state agency when the named losing parties did not themselves seek review in this Court. Notwithstanding the Attorney General’s broad statutory authority to intervene in cases, we hold that to pursue such an appeal as an intervenor there must be a justiciable controversy, which in this case requires an appeal by an “aggrieved party.” Because neither of the losing parties below filed a timely appeal, and because the Attorney General does not represent an aggrieved party for purposes of this case, there is no longer a justiciable controversy. Under such circumstances, the Attorney General may not independently appeal the Court of Appeals judgment. We therefore dismiss this appeal. I. FACTS AND PROCEDURAL HISTORY In 1988, Carl M. Schultz, Inc. (hereafter plaintiff), discovered that an underground storage tank and piping system located on its property had released petroleum into the soil. The Department of Natural Resources (DNR) directed plaintiff to take action to remedy this situation, and, in 1991, plaintiff began constructing an on-site treatment system. In 1992, the treatment system began operation, and, in 1993, the DNR approved plaintiffs site investigation work plan. In 1991, defendant Oakland County Road Commission released petroleum on property adjacent to plaintiffs property. In 1992, plaintiff began to suspect that some of this petroleum had migrated onto its property. By 1995, the DNR concluded that at least some of the petroleum detected on plaintiffs property had originated from defendant’s property. In 2000, plaintiff and its insurer, Federated Insurance Company, filed a cost-recovery action against defendant pursuant to provisions of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.20101 et seq., for the added costs associated with the cleanup of petroleum contaminants that had originated from defendant’s property. The trial court granted defendant’s motion for summary disposition, concluding that the action was barred by the six-year limitations period found in the NREPA, and the Court of Appeals affirmed. 263 Mich App 62; 687 NW2d 329 (2004). On behalf of the people of the state and the Michigan Department of Environmental Quality (MDEQ) (the successor to the DNR), which had never been a party in the trial court proceedings or in the appeal in the Court of Appeals, the Attorney General then filed a timely application for leave to appeal in this Court as an intervening appellant. Plaintiffs, however, did not file a timely application for leave to appeal even though they “lost” under the Court of Appeals opinion. This Court granted the Attorney General’s application for leave to appeal and denied plaintiffs’ cross-application for leave to appeal. 472 Mich 898 (2005). II. STANDARD OF REVIEW Defendant argues that the Attorney General lacks the authority to intervene to appeal the judgment of the Court of Appeals. Because this issue implicates the constitutional authority of the judiciary and the Attorney General, we review it de novo. Co Rd Ass’n of Michigan v Governor, 474 Mich 11, 14; 705 NW2d 680 (2005). HI. ANALYSIS Following adjudication in the Court of Appeals that resulted in a published opinion, where the parties were plaintiffs Federated Insurance Company and Carl M. Schultz, Inc., and defendant Oakland County Road Commission, the Attorney General, representing the people of the state and the MDEQ, has now sought to appeal in this Court, even though neither of the losing parties in the Court of Appeals sought timely leave to appeal. The Attorney General argues that the Court of Appeals misconstrued MCL 324.20140(l)(a), a statute that the MDEQ frequently litigates. Resolution of whether this intervention and appeal are permissible implicates standing, the “aggrieved party” concept, and what constitutes a justiciable controversy. As we indicated in Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 612; 684 NW2d 800 (2004), citing Lee v Macomb Co Bd of Comm’rs, 464 Mich 726, 734; 629 NW2d 900 (2001), standing refers to the right of a party plaintiff initially to invoke the power of the court to adjudicate a claimed injury in fact. In such a situation it is usually the case that the defendant, by contrast, has no injury in fact but is compelled to become a party by the plaintiffs filing of a lawsuit. In appeals, however, a similar interest is vindi cated by the requirement that the party seeking appellate relief be an “aggrieved party” under MCR 7.203(A) and our case law. This Court has previously stated, “To be aggrieved, one must have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and future contingency.” In re Estate of Trankla, 321 Mich 478, 482; 32 NW2d 715 (1948), citing In re Estate of Matt Miller, 274 Mich 190, 194; 264 NW 338 (1936). An aggrieved party is not one who is merely disappointed over a certain result. Rather, to have standing on appeal, a litigant must have suffered a concrete and particularized injury, as would a party plaintiff initially invoking the court’s power. The only difference is a litigant on appeal must demonstrate an injury arising from either the actions of the trial court or the appellate court judgment rather than an injury arising from the underlying facts of the case. With regard to the necessity of a justiciable controversy, it derives from the constitutional requirement that the judiciary is to exercise the “judicial power” and only the “judicial power.” In giving meaning to what the “judicial power” is in our Constitution, we explained in Nat’l Wildlife Federation, supra at 614-615: The “judicial power” has traditionally been defined by a combination of considerations: the existence of a real dispute, or case or controversy; the avoidance of deciding hypothetical questions; the plaintiff who has suffered real harm; the existence of genuinely adverse parties; the sufficient ripeness or maturity of a case; the eschewing of cases that are moot at any stage of their litigation; the ability to issue proper forms of effective relief to a party; the avoidance of political questions or other non-justiciable controversies; the avoidance of unnecessary constitutional issues; and the emphasis upon proscriptive as opposed to prescriptive decision making. Perhaps the most critical element of the “judicial power” has been its requirement of a genuine case or controversy between the parties, one in which there is a real, not a hypothetical, dispute, and one in which the plaintiff has suffered a “particularized” or personal injury. [Citation omitted.][ ] The Attorney General’s authority to intervene is found in two statutes. MCL 14.101 states: The Attorney General of the State is hereby authorized and empowered to intervene in any action heretofore or hereafter commenced in any court of the State whenever such intervention is necessary in order to protect any right or interest of the State, or of the people of the State. Such right of intervention shall exist at any stage of the proceeding, and the Attorney General shall have the same right to prosecute an appeal, or to apply for a re-hearing or to take any other action or step whatsoever that is had or possessed by any of the parties to such litigation. Similarly, MCL 14.28 states: The Attorney General shall prosecute and defend all actions in the supreme court, in which the state shall be . interested, or a party; he may, in his discretion, designate one of the assistant attorneys general to be known as the solicitor general, who, under his direction, shall have charge of such causes in the supreme court and shall perform such other duties as may be assigned to him; and the attorney general shall also, when requested by the governor, or either branch of the legislature, and may, when in his own judgment the interests of the state require it, intervene in and appear for the people of this state in any other court or tribunal, in any cause or matter, civil or criminal, in which the people of this state may be a party or interested. These statutes purport to provide the Attorney General with the authority to prosecute, defend, and intervene in certain “actions.” But, this case ceased to be an “action” when the losing parties below (plaintiffs) failed to file a timely application for leave to appeal in this Court. Once plaintiffs’ deadline for filing a timely application for leave to appeal expired, the case ceased to be a justiciable controversy. To the extent one might read MCL 14.101 or MCL 14.28 as allowing the Attorney General to prosecute an appeal from a lower court ruling without the losing party below also appealing, and without the Attorney General himself being or representing an aggrieved party, the statutes would exceed the Legislature’s authority because, except where expressly provided, this Court is not constitutionally authorized to hear nonjusticiable controver sies. Nat’l Wildlife Federation, supra at 614-615. To give these statutes such a reading would contravene an operative presumption of this Court that we presume constitutional intent on the part of the Legislature. See Phillips v Mirac, Inc, 470 Mich 415, 422; 685 NW2d 174 (2004). IV RESPONSE TO THE DISSENT The dissent relies on two cases in arguing that the Attorney General should be allowed to appeal in this Court notwithstanding the fact that the losing parties below did not file a timely appeal: Mundy v McDonald, 216 Mich 444; 185 NW 877 (1921), and Russell v Peoples Wayne Co Bank of Dearborn, 275 Mich 415; 266 NW 401 (1936). These cases, however, are not inconsistent with our holding today; nor do they support the holding the dissent would adopt. In Mundy, a circuit judge was sued in circuit court for libel. The Attorney General’s office, on behalf of the circuit judge, sought dismissal of the lawsuit. On appeal, this Court rejected the argument that the Attorney General’s office could not defend a circuit judge who had been sued. The Attorney General’s office represented an actual defendant party in that lawsuit. In Russell, a receiver of the Detroit Banker’s Company filed a lawsuit seeking to have liquidating receivers appointed for other banks. The Attorney General’s office intervened in the case and moved to dismiss the lawsuit. On appeal, the plaintiff argued that the Attor ney General should not have been permitted to move to dismiss the case because the public had no interest in the litigation. This Court rejected the plaintiffs claim because the banking commissioner became a “party” when the plaintiff sought to have receivers appointed. Again, the Attorney General’s office represented an actual party in the litigation. Each of these cases is inapposite because it presented a justiciable controversy wherein the Attorney General represented an actual party. In the case at bar, however, no justiciable controversy exists and the Attorney General does not represent a party to the dispute. Moreover, none of these cases cited by the dissent involved the Attorney General attempting to appeal a decision of a lower court without the losing party below also appealing. Our opinion does not overrule any cases. Under our holding, the Attorney General remains free to prosecute actions on behalf of the state and may appear on behalf of state parties. Moreover, it is not inconsistent with the Attorney General’s authority to intervene in “actions.” As previously explained, we merely hold that the Attorney General’s authority to intervene does not include the ability to appeal a nonjusticiable case. Given the untethered language in the dissent, one has to wonder if there is any circumstance in which the dissent would conclude that the Attorney General would not have the authority to intervene and pursue an appeal no matter how unrelated the Attorney General’s “interest” may be to traditional standing considerations. Contrary to the dissent’s contention, the issue of the Attorney General’s authority to independently intervene and appeal the Court of Appeals opinion was raised by the defendant in its brief on appeal; it was argued at oral argument, and it was briefed by the Attorney General and defendant in supplemental briefs. Finally, contrary to the dissent’s contention, we are not expanding the standing theory; rather, our holding is consistent with our prior case law as cited in n 2 of this opinion. V CONCLUSION We conclude that there is no justiciable controversy because the Attorney General does not represent an aggrieved party and because neither of the losing parties below chose to file a timely application for leave to appeal. Under such circumstances, this Court does not have the authority to hear the Attorney General’s appeal. Therefore, we dismiss the appeal. Corrigan, Young, and Markman, JJ., concurred with Taylor, C.J. Plaintiffs filed an application for leave to appeal in this Court after the deadline for filing an application for leave to appeal had expired. Plaintiffs sought to avoid MCR. 7.302(C)(3) (“[l]ate applications will not be accepted”) by designating the appeal as a cross-application for leave to appeal. Plaintiffs’ “cross-application” fully supported the Attorney General-intervening appellant’s application for leave to appeal. But, plaintiffs cannot be considered cross-appellants where their position is the same as that taken by the Attorney General-intervening appellant. Therefore, although plaintiffs referred to their application for leave to appeal as a cross-application, it was actually an untimely application for leave to appeal. This is why we denied plaintiffs’ application. See, e.g., Ford Motor Co v Jackson (On Rehearing), 399 Mich 213, 225; 249 NW2d 29 (1976) (Coleman, J.), citing In re Critchell’s Estate, 361 Mich 432; 105 NW2d 417 (1960). “ ‘A party who could not benefit from a change in the judgment has no appealable interest.’ ” “ ‘[0]f course one may not appeal from a judgment, order or decree, in his favor by which he is not injuriously affected.’ ” Id. at 226, quoting 4 Am Jur 2d, Appeal and Error, §§ 182, 184. See also In re Estate of Trankla, 321 Mich 478, 482; 32 NW2d 715 (1948) (“ ‘It is a cardinal principle, which applies alike to every person desiring to appeal, that he must have an interest in the subject-matter of the litigation. Otherwise, he can have no standing to appeal.’ ”) (citation omitted). The Attorney General does not fit within this definition of an “aggrieved party.” Thus, contrary to the dissent’s claim, our holding is not “unprecedented.” The dissent further asserts that we are legislating from the bench a new restriction on the Attorney General’s authority to intervene. Nothing could be further from the truth. Our holding is fully supported by constitutional principles and prior case law. The dissent contends that the Attorney General has standing because the MDEQ, the state agency that the Attorney General is representing, is “interested in the proper enforcement of the NREPA....” Post at 307. However, if an interest in the proper enforcement of a statute were enough to confer standing, the Attorney General would always have standing because the people of Michigan and state agencies are always interested in the proper enforcement of statutes. Contrary to the dissent’s contention, an interest in the proper enforcement of a statute has never before been thought sufficient to confer standing; instead, a concrete and particularized injury is required to confer standing. Tachiona v United States, 386 F3d 205, 210-211 (CA 2, 2004). See also Kootenai Tribe of Idaho v Veneman, 313 F3d 1094, 1109 (CA 9, 2002). The dissent once again also accuses us of “further expanding] [our] judicial power ....” Post at 312 n 18. However, as this Court in Nat’l Wildlife, supra at 617-618, said: [T]he exact opposite is true. By its adherence to Lee, the majority opinion rejects a constitutional regime in which the judicial branch can be invested with extra-constitutional powers at the expense of the other branches, in particular the executive. One need only be a casual student of government to recognize the extraordinary rarity of an institution of government, such as this Court, choosing, on the basis of constitutional objection, not to exercise a power conferred upon it by another branch of government. It is impenetrable reasoning to equate such an abnegation of power with an enhancement of power. [Emphasis in original.] If plaintiffs had filed a timely application for leave to appeal, there would obviously have been a justiciable controversy in which the Attorney General could have intervened. Consistent with the principles of appellate standing, where the Attorney General intervenes solely to advocate a general position on the law, the intervention statutes on which the Attorney General relies confer on the Attorney General only a form of “statutory amicus,” not true party, status. Thus, if the Attorney General had sought to intervene in a timely filed appeal by a party with appellate standing — not to represent a client that had suffered an adverse decision of a lower court but only to advance a perspective on the law — the Attorney General’s role would have been limited to advocating the state’s position on the law. Whatever role the Attorney General may properly play in an appeal in which he intervenes, the precondition for intervention is that there must be a timely appeal by a party that has appellate standing as outlined in this opinion. See, e.g., Const 1963, art 3, § 8, which permits the legislative and executive branches of government to request an opinion of this Court on the constitutionality of legislation not yet in effect. Although the MDEQ might well have an interest in how MCL 324.20140(l)(a) is interpreted, it has not yet suffered a concrete injury on the basis of the alleged misconstruction of the statute. Moreover, no reason exists to prevent the Attorney General from filing a lawsuit on behalf of the MDEQ once the MDEQ has suffered such an injury, e.g., is denied reimbursement costs. Indeed, contrary to the dissent’s contention, we are not holding that the Attorney General cannot appeal to this Court unless the named losing party also appeals; rather, we are holding that the Attorney General cannot appeal unless some aggrieved party appeals. There may be instances where the Attorney General himself or a party he is representing is aggrieved. This, however, is not such a case.
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The motions for disqualification of Justices Corrigan and Markman are denied. Weaver, J. I do not participate in the decisions regarding the motions to disqualify Justice Corrigan and Justice Markman. On February 20, 2006, the Committee to Re-elect Justice Maura Corrigan sent out a fundraising letter from former Governor John Engler stating: We cannot lower our guard should the Fiegers of the trial bar raise and spend large amounts of money in hopes of altering the election by an 11th hour sneak attack. This statement was one of the grounds Usted in the motion for disquahfication filed against Justice Corrigan by the respondent, Geoffrey Fieger. I do not participate in deciding respondent’s motion to disqualify Justice CORRIGAN. This Court should pubhsh proposals for pubhc comment, place the issue on a pubhc hearing for administrative matters, resolve, and make clear for ah to know the proper procedures for handling motions for the recusal of Supreme Court justices from participation in a case. See Scalise v Boy Scouts of America, 473 Mich 853 (2005). This Court opened an administrative file on the question on May 20, 2003, but has yet to address the matter. See ADM 2003-26. The question regarding the participation or nonparticipation of justices frequently recurs and is a matter of pubhc significance because even one justice’s decision to participate or not participate may affect the decision and outcome in a case. See Advocacy Org for Patients & Providers v Auto Club Ins Ass’n, 472 Mich 91, 96-104; 693 NW2d 358 (2005) (Weaver, J., concurring). Markman, J. For the following reasons, I deny the motion for my disquahfication. Respondent first argues that I am “enmeshed in other matters” concerning him. However, this is true only because respondent by his own actions, specifically by initiating a series of federal lawsuits against me and other Justices of this Court, has so “enmeshed” me. It cannot be that a judge can be required to disqualify himself or herself simply on the basis of such lawsuits. Grace v Leitman, 474 Mich 1081 (2006); People v Bero, 168 Mich App 545, 552 (1988). To allow respondent’s lawsuits to constitute a basis for my disquahfication because I have thereby become “enmeshed” with him would simply be to incentivize such lawsuits on the part of any attorney or htigant desirous of excluding a disfavored judge from participation in his or her case. Respondent next argues that my participation in this case would afford me the opportunity to “buttress a demand for money from him.” This apparently refers to my defense in one of respondent’s lawsuits that the lawsuit is “frivolous” and, therefore, that sanctions are appropriate under federal court rules. Again, it cannot be that a judge can be required to disqualify himself or herself on the basis of his or her defense to a lawsuit. It is the right of any htigant, including a judicial defendant, to defend himself or herself by appropriate means. To allow my defense to respondent’s lawsuits to constitute a basis for my disquahfication would again simply be to incentivize such lawsuits on the part of any attorney or htigant desirous of excluding a disfavored judge from participation in his or her case. Respondent next argues that I have been a “target of personal abuse” from him and cannot be fair toward him. Whatever “abuse” respondent may or may not have directed toward me, I have never once called into question the propriety of his conduct. I have never questioned his right to direct any pubhc criticism toward me or to undertake any financial contributions against me in the course of my campaigns for judicial office. Once again, it cannot be that a judge can be required to disqualify himself or herself on the basis of “abuse” that he has allegedly received from an attorney or litigant. To allow such conduct to constitute a basis for my disqualification would again simply be to incentivize such conduct on the part of any attorney or litigant desirous of excluding a disfavored judge from participation in his or her case. Respondent next argues that my nondisqualification would potentially allow me to “vent my spleen” against him because of his opposition to my reelection to this Court. However, as was observed in Adair v Michigan, 474 Mich 1027 (2006) (statement by Taylor, C.J., and Markman, J.), if campaign opposition constituted a basis for disqualification, there would rarely, if ever, be a full contingent of this Court hearing an appeal. Lawful campaign contributions, in support of and in opposition to a judge, have never before constituted a basis for disqualification. Respondent himself, for example, has made contributions in support of or in opposition to each of the Justices of this Court. Finally, respondent argues that my wife has a pecuniary interest in the outcome of this case because he “might” run for Attorney General someday. For the reasons set forth by Chief Justice Taylor and myself in Adair, my participation in cases concerning the Office of the Attorney General and other public and private offices in which my wife has worked, has always been in accord with the highest standards of judicial conduct. My wife, who is a civil service employee, has no financial stake in whether respondent prevails or not in this case, or in whether respondent someday chooses to run for Attorney General or any other public position. After carefully considering the instant motion for disqualification, I am convinced that I can fairly and impartially consider the present appeal just as in the past I have fairly and impartially considered both appeals in which respondent was a party and appeals in which he represented other parties. Cavanagh and Kelly, JJ. We do not participate in the decisions regarding the motions to disqualify Justice Corrigan and Justice Markman.
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WEAVER, J. The issue before us is whether plaintiffs claims for violations of the Civil Rights Act (CRA), breach of contract, and misrepresentation accrue on the dates that the alleged discriminatory acts or misrepresentations occur or on the plaintiffs last day of work. Following our decision in Magee v DaimlerChrysler Corp, 472 Mich 108; 693 NW2d 166 (2005), we hold that a claim of discrimination accrues when the adverse discriminatory acts occur. Thus, if a plaintiffs complaint does not make out a claim of discriminatory discharge, a claim of constructive discharge for a separation from employment occurring after the alleged discriminatory acts cannot serve to extend the period of limitations for discriminatory acts committed before the termination. Because Jacobson v Parda Fed Credit Union, 457 Mich 318; 577 NW2d 881 (1998), held that allegations of constructive discharge could operate to extend the applicable period of limitations for discriminatory acts falling outside the period of limitations, and is inconsistent with Magee, supra, it is overruled. Here, plaintiff does not assert a claim of discriminatory discharge. All the discriminatory acts or misrepresentations alleged in plaintiffs complaint took place before November 30, 1998. Therefore, plaintiffs November 30, 2001, complaint was not timely filed under the applicable three-year statute of limitations, MCL 600.5805. Accordingly, we hold that the trial court and the Court of Appeals erred in denying defendants’ motion for summary disposition. We reverse and remand to the Wayne Circuit Court for entry of an order of summary disposition in defendants’ favor. FACTS Plaintiff worked for the city of Taylor as a data processing manager. Plaintiff testified by deposition that beginning in 1997, she was subjected to continual sexist remarks and derogatory treatment because of her age by defendant Frank Bacha, the former executive director of the Department of Public Works in the city of Taylor. On August 31, 1998, the city hired a much younger man, Randy Wittner, as the new director of information systems. Plaintiff testified that many of her prior job duties were shifted to Wittner, and that she suffered a $15,000 reduction in income because she no longer received overtime pay. In late September 1998, Bacha went on leave, and then formally left his position on October 8, 1998. Bacha was apparently the subject of sexuál harassment complaints from other women, and it was arranged for him to leave his job with the city of Taylor. After Bacha went on leave, plaintiff never saw him again. Plaintiff testified that she became uncertain about her status at work in the fall of 1998. She attempted to meet with defendant Gregory Pitoniak, mayor of the city of Taylor, about her concerns, but he avoided meeting with her. Plaintiff repeatedly requested an “at will termination” by the city, which would have allowed her to receive 30 weeks’ severance pay, but she testified that Pitoniak refused to discuss her requests. Plaintiff went on vacation on November 24, 1998. While on vacation she decided that she could no longer work for the city. Plaintiff sent in her resignation on November 30,1998, to be effective December 1,1998. In her letter of resignation, plaintiff again requested that she be given severance pay. On November 30, 2001, plaintiff filed a complaint against Pitoniak and Bacha. Plaintiff claimed quid pro quo sex discrimination, hostile work environment sex discrimination, age discrimination, breach of contract, and misrepresentation. Defendants filed a motion for summary disposition under MCR 2.116(C)(7), asserting that plaintiffs suit was barred by the three-year period of limitations in MCL 600.5805(9). At the February 21, 2003, hearing on the motion for summary disposition, plaintiff conceded that all her claims, including her claims for breach of contract and misrepresentation, were governed by the three-year period of limitations in MCL 600.5805(9). The trial court denied defendants’ motion for summary disposition, concluding that plaintiff had three years from the last day that she worked, which was sometime between November 30, 1998, and December 3, 1998, to file súit. The Court of Appeals affirmed the order denying defendants’ motion for summary disposition, finding that plaintiffs last day of work was November 30, 1998. Defendants then filed an application for leave to appeal in this Court. We ordered oral argument on the application, instructing the parties to address the following questions: The parties shall submit supplemental briefs... addressing: (1) what actions, if any, were taken by the two defendants after October 8, 1998, that contributed to a discriminatory hostile work environment, so as to support a December 1,1998, date of injury; (2) whether a December 1,1998, accrual date for injury to plaintiff is sustainable for defendant Frank Bacha, where he left his employment with the city of Taylor on October 8,1998; and (3) the impact, if any, of this Court’s decision in Magee v DaimlerChrysler Corp, 472 Mich 108 (2005).[ ] STANDARD OF REVIEW This Court reviews de novo rulings on summary disposition motions, viewing the evidence in the light most favorable to the nonmoving party. In the absence of disputed facts, whether a cause of action is barred by the applicable statute of limitations is a question of law, which this Court reviews de novo. ANALYSIS •All of plaintiffs claims against the defendants are subject to the three-year period of limitations in MCL 600.5805(9). The questions presented are on what dates did plaintiffs claims accrue, and when did the period of limitations begin to run. The statute of limitations at issue, MCL 600.5805, provides that plaintiffs claims must be brought within three years of the date the claims accrued: (1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section. (9) The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property. Furthermore, accrual under the three-year statute of limitations is measured by “the time the wrong upon which the claim is based was done regardless of the time when damage results.” Thus, plaintiffs claims are barred by the statute of limitations unless they were brought within three years of the date the claims accrued, which is the date of the alleged wrongdoing. The trial court and the Court of Appeals both relied on Jacobson, supra, and Collins v Comerica Bank, 468 Mich 628; 664 NW2d 713 (2003), to hold that the period of limitations began to run on plaintiffs last day of work. Both courts found that plaintiffs last day of work was not before November 30, 1998, and thus plaintiffs suit was timely filed within the three-year period of limitations. The lower courts’ reliance on Collins was erroneous. First, as we noted in Magee, supra, Collins involved a claim of discriminatory discharge motivated by race and gender animus, not a constructive discharge based on earlier discriminatory acts, as is the claim here. In Collins, after the plaintiffs employment was terminated by her employer, the plaintiff brought a claim of discriminatory discharge under the Civil Rights Act, MCL 37.2101 et seq. There, this Court recognized that “a claim for discriminatory discharge cannot arise until a claimant has been discharged.” But here plaintiff does not assert a claim of discriminatory discharge. Rather, plaintiffs Civil Rights Act claims and her breach of contract and misrepresentation claim are based on alleged discriminatory conduct that occurred before she resigned her position. Thus, unlike the situation in Collins, the adverse employment action alleged in this case did not coincide with the date of the termination of plaintiffs employment. Collins is inapposite. This Court recently recognized in Magee, supra, the distinction between a constructive and a discriminatory discharge. When the plaintiff does not make a claim of discriminatory termination, the court must examine whether the discriminatory conduct occurred within the three years that preceded the filing of the complaint. In Magee, the plaintiff went on medical leave on September 12, 1998, and resigned on February 2, 1999. She never returned to work from her medical leave. On February 1, 2002, the plaintiff filed a civil rights claim against the defendant, alleging an assortment of age, sex, and hostile work environment claims. The trial court granted the defendant’s motion for summary disposition on the ground that the statute of limitations barred the plaintiffs claims, because the plaintiff alleged no discriminatory activity after September 12, 1998. The Court of Appeals reversed the trial court by relying on Collins. It held that the plaintiffs suit was timely because she filed suit within three years of her resignation. This Court reversed the Court of Appeals and distinguished Collins on the basis that the plaintiff in Magee did not allege a discriminatory discharge. Since she was not discriminatorily discharged by the defendant, and she could not allege any acts of discrimination within three years of her lawsuit, the plaintiffs claims were barred by the statute of limitations. We find the holding of Magee particularly instructive in this case, since both cases center on claims of constructive discharge where the alleged discriminatory acts preceded the date of resignation. In addition to its misplaced reliance on Collins, the Court of Appeals in this case also relied on Jacobson, supra, to hold that plaintiffs claims accrued on her last day of work. In Jacobson, this Court considered whether the 90-day statute of limitations contained in the Whistleblowers’ Protection Act (WPA) barred the plaintiffs wrongful discharge claim. The plaintiff, an executive vice president and chief operating officer of the defendant Parda Federal Credit Union, argued that she had been constructively discharged, in violation of the WPA, after she notified the FBI that her employer may have filed a fraudulent bond claim with its insurer. The plaintiff alleged that her relationship with the Parda board of directors thereafter deteriorated, that the board passed her over for a promotion to be chief executive officer, and that her job duties were significantly reduced. In response to what the plaintiff perceived to be an intolerable work environment, the plaintiff composed and mailed a resignation letter on Saturday, October 21,1989, and cleaned out her desk on the following Monday. She later filed suit on January 19, 1990, exactly 90 days after writing and mailing the letter. After the plaintiff received a favorable jury verdict, the trial court granted the defendant a directed verdict because the plaintiff failed to allege a violation of the WPA that occurred within the period of limitations. The Court of Appeals reversed, and this Court affirmed. The majority held that the constructive discharge, although not itself a cause of action, was a violation of the WPA as a retaliatory act of discharge, since “a discharge occurs when a reasonable person in the employee’s place would feel compelled to resign.” Although the plaintiffs voluntarily resignation was compelled by discriminatory acts that had occurred more than 90 days before filing her lawsuit, the majority found that her WPA claim was timely filed. Justice TAYLOR, joined by Justices WEAVER and BRICKLEY, dissented. The dissent distinguished be tween a violation of the WPA and its lingering effects. According to the dissent, it is the adverse employment action that motivates an employee ultimately to resign that triggers the statute of limitations, not the date of the resignation. As the WPA limitations period runs on the “ ‘occurrence of the alleged violation of this act,’ ” the dissent noted that the plaintiffs resignation was a response to an alleged WPA violation, not an alleged violation itself. The dissent criticized the majority for focusing intently on the date of resignation, particularly when the events in Jacobson that “cause[d] the employee to feel compelled to resign” would have been time barred by the 90-day statute of limitations. We note that, absent Magee, which the Court of Appeals in this case did not have the opportunity to consider, Jacobson would compel this Court to affirm the Court of Appeals, because plaintiff filed suit within three years of the date of her resignation. However, our decision in Jacobson is inconsistent with the statute of limitations accrual analysis we ultimately applied in Magee. Because Jacobson’s analysis is contrary to the one adopted in Magee, we are obligated to resolve this conflict and decide which decision best reflects the Legislative intent expressed in the words of the statute of limitations. Magee is more faithful in construing the plain language of the statute of limitations under the CRA than Jacobson was in construing the WPA statute of limitations. Magee recognized that the basic question to answer when analyzing the accrual date of a claim under the CRA is when did the “injury” or “wrong” take place. This is the most straightforward reading of the statute of limitations, which speaks only in terms of the “injury” and “the time [of] the wrong.” Here, pursuant to the text of MCL 600.5827, plaintiffs claims accrued at the time the wrongs on which her claims are based were committed, not when she suffered damage. Thus, the relevant date for the period of limitations is not plaintiffs last day of work, but the date of the last discriminatory incident or misrepresentation. We agree with the Jacobson majority that a constructive discharge is not a cause of action, but simply the culmination of alleged wrongful actions that would cause a reasonable person to quit employment. Constructive discharge is a defense that a plaintiff interposes to preclude the defendant from claiming that the plaintiff voluntarily left employment. Jacobson, supra at 321 n 9. The resignation itself does not constitute a separate cause of action. Id. However, notwithstanding the conclusion that a constructive discharge is not a cause of action, Jacobson erroneously treated an employee’s resignation as a violation of the WPA. Where the resignation is not itself an unlawful act perpetrated by the employer, it simply is not a “violation” of the WPA under the plain language of MCL 15.362, which prohibits discharge, threats, or other discrimination by the employer. We agree with the Jacobson dissent that in the context of a constructive discharge it is the employer’s wrongful act that starts the period of limitations by causing the employee to feel compelled to resign, not the employee’s response. Accordingly, we overrule the accrual analysis of Jacobson because it is inconsistent with our opinion in Magee and with the plain language of the statute of limitations under the WPA and the CRA. Having distinguished Collins, reaffirmed Magee, and overruled Jacobson, we next examine the discriminatory conduct and misrepresentations alleged against each individual defendant to see whether the alleged conduct occurred on or after November 30,1998, within the three years preceding the filing of plaintiffs complaint. A. AGE AND SEXUAL DISCRIMINATION 1. DEFENDANT FRANK BACHA Plaintiff recorded incidents by Bacha that she believed were discriminatory in her daily planner. The incidents that plaintiff recorded occurred between August 1997 and September 1998. Plaintiff testified in her deposition that she never saw Bacha after he ceased working for the city in September 1998: Q.. .. Was there any type of harassment by Mr. Bacha that you’re aware of after he went on leave in September of 1998? A. No, I never saw him again.1 1 Even viewing the evidence in the light most favorable to plaintiff, on the basis of plaintiffs deposition testi mony it is clear that Bacha engaged in no discriminatory conduct within the hmitations period. The trial court and Court of Appeals erred in denying the motion for summary disposition with regard to Bacha. 2. DEFENDANT GREGORY PITONIAK Although in her deposition plaintiff testified that there was no specific incident of discrimination by Pitoniak between November 24, 1998, and November 30, 1998, plaintiff claims on appeal that two discriminatory acts by Pitoniak occurred within the three years that preceded the filing of the complaint. First, plaintiff claims that she received disparate pay until she resigned. Specifically, plaintiff alleges that her income was decreased by approximately $15,000 because she no longer received overtime pay after the city hired Wittner as the new director of information systems. Wittner was hired on August 31, 1998. The hiring of the younger man was the alleged discriminatory act; the resulting loss of overtime pay was an ongoing damage that resulted from that discriminatory act, not a discriminatory act in itself. If an act is not in and of itself discriminatory, i.e., it has a discriminatory effect only because of a prior discriminatory act, it cannot sustain a cause of action. Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 530; 398 NW2d 368 (1986) (citing United Air Lines, Inc v Evans, 431 US 553; 97 S Ct 1885; 52 L Ed 2d 571 [1977]), overruled on other grounds by Garg v Macomb Co Community Mental Health Services, 472 Mich 263; 696 NW2d 646 (2005). Plaintiffs claim based on the hiring of Wittner accrued when the alleged discriminatory act took place, when Wittner was hired on August 31, 1998, even though the damages from that discriminatory act continued during the limitations period. MCL 600.5827. Second, plaintiff made a request for severance pay in her resignation letter of November 30, 1998. Plaintiff alleges that this final request for severance pay, and Pitoniak’s failure to respond to her request, was a discriminatory act that fell within the three-year period. But the failure to grant plaintiffs request for severance pay was not a discriminatory act. Plaintiff was not entitled to severance pay upon her resignation, though she would have been entitled to it had she been terminated by the city without cause. Because plaintiff alleged no discriminatory acts by Pitoniak that occurred on or after November 30, 1998, her complaint against him was not timely filed. B. BREACH OF CONTRACT AND MISREPRESENTATION In count IV of her complaint, plaintiff alleged that defendants made various misrepresentations to her: that her working conditions “would not be affected by her acceptance of any sexual harassment or discrimination on the basis of her age or sex,” that her job was not being advertised or open for a replacement, and that she was to perform her duties in the best interests of the city of Taylor. All these allegations of misrepresentation stem from incidents that occurred before November 30, 1998. Because the claims did not accrue within the three years preceding the filing of the complaint, plaintiffs complaint was not timely filed. CONCLUSION Plaintiffs claims accrued on the dates that the alleged discriminatory acts or misrepresentations occurred. All the discriminatory acts or misrepresentations alleged in plaintiffs complaint took place before November 30, 1998. Thus, her November 30, 2001, complaint was not timely filed. The trial court and Court of Appeals erred in denying defendants’ motion for summary disposition based on the three-year period of limitations, MCL 600.5805(9), by relying on Collins, supra. We reverse the Court of Appeals judgment affirming the trial court’s denial of defendants’ motion for summary disposition, and remand to the Wayne Circuit Court for entry of an order granting defendants’ motion for summary disposition. Taylor, C.J., and Corrigan, Young, and Markman, JJ., concurred with WEAVER, J. MCL 37.2101 et seq. The language formerly found in MCL 600.5805(9) is now set forth in MCL 600.5805(10). Plaintiffs January 17, 2003, affidavit. Plaintiffs complaint also named James Arango as a defendant. Arango was an outside contractor who did work for the city of Taylor’s Department of Public Works. Arango was apparently never served with the complaint and has not filed an appearance or responsive pleadings in this matter. The claim against Arango is not before the Court. Unpublished opinion per curiam of the Court of Appeals, issued August 31, 2004 (Docket No. 247590). 472 Mich 908 (2005). Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 (2004), and DiFranco v Pickard, 427 Mich 32, 38; 398 NW2d 896 (1986). Moll v Abbott Laboratories, 444 Mich 1, 26; 506 NW2d 816 (1993). Plaintiff does not have a contract with either of the defendants; her contract was with the city of Taylor, which is not a party in the suit. These alleged contract claims are discrimination claims recast as contract claims. At the February 21, 2003, hearing on the motion for summary disposition, plaintiff conceded that all her claims, including her claim for breach of contract and misrepresentation, were governed by the three-year statute of limitations in MCL 600.5805(9). Stringer v Sparrow Hosp Bd of Trustees, 62 Mich App 696, 702; 233 NW2d 698 (1975), and Glowacki v Motor Wheel Corp, 67 Mich App 448, 460; 241 NW2d 240 (1976). Given plaintiffs concession, for purposes of our analysis of when plaintiffs claims accrued under the applicable statute of limitations, how such contract claims are characterized is irrelevant. MCL 600.5827 (emphasis added). Magee, supra at 112. Collins, supra at 633 (emphasis added). MCL 15.363(1) (“A person who alleges a violation of this act may bring a civil action for appropriate injunctive relief, or actual damages, or both within 90 days after the occurrence of the alleged violation of this act.”). MCL 15.362 (“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....”). Jacobson, supra at 321-322. Id. at 321 n 9, citing Vagts v Perry Drug Stores, Inc, 204 Mich App 481; 516 NW2d 102 (1994). Jacobson, supra at 328. Id. at 337 (Taylor, J., dissenting). Id. Id. The dissent labels our overrubng of Jacobson “gratuitous” and “unnecessary” because Jacobson involved claims brought under the WPA, not the CRA. Post at 46. However, the dissent’s basis for distinguishing Jacobson evades the plain fact that the Court of Appeals relied on Jacobson to reach its decision in this case. Therefore, the soundness of Jacobson’s accrual analysis, which conflicts with our recent decision in Magee, must be confronted and resolved by this Court. Given the choice, the dissent would prefer to overrule Magee and reaffirm Jacobson, but it posits no analytical reason why it would resolve the conflict in favor of the latter and why, under the plain language of the CRA’s statute of limitations, the plaintiffs claim could accrue when the plaintiff felt compelled to resign rather than the date when the defendant employer actually injured the plaintiff through an adverse employment action. We believe that such a result is inconsistent with the language of the applicable statute of limitations. Deposition of Virginia Joliet, August 21, 2002, p 61. In her September 3, 2002, deposition, plaintiff testified as follows: Q. Was there any incident of discrimination that occurred between November 24th and the date you resigned on November 30th? A. I had no contact with City officials, but I maintained that their actions were cumulative. Q. Okay. I— A. But no specific — No. Q. There was no specific incident of discrimination from November 24th till November 30th; is that correct? A. Let me just make sure I didn’t get — don’t have a record of a phone call. There was no specific act of discrimination during that time period.
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Corrigan, J. The 180-day rule, codified in MCL 780.131, provides that a prison inmate who has a pending criminal charge must be tried within 180 days after the Department of Corrections delivers to the prosecutor notice of the inmate’s imprisonment and requests disposition of the pending charge. In People v Smith, 438 Mich 715, 717-718 (LEVIN, J.), 719 (BOYLE, J.); 475 NW2d 333 (1991), this Court held that the 180-day rule does not apply when the pending charge provides for mandatory consecutive sentencing. In the instant case, the trial court initially dismissed the charges against defendant on the basis of a violation of the 180-day rule, but the Court of Appeals vacated the order of dismissal and remanded so the trial court could address the application of the rule in Smith, supra. On remand, the trial court, relying on the rule in Smith, supra, found no violation of the 180-day rule. The Court of Appeals thereafter dismissed the appeal and remanded for trial. We overrule Smith, supra, and its progeny to the extent that they are inconsistent with the plain language of the 180-day-rule statute, which contains no exception for charges subject to consecutive sentencing. This decision is to be given limited retroactive effect, applying to those cases pending on appeal in which this issue has been raised and preserved. See People v Cornell, 466 Mich 335, 367; 646 NW2d 127 (2002). However, we affirm the lower courts’ decision that the 180-day-rule statute was not violated because defendant was tried within 180 days of the date that the prosecutor received actual notice that defendant was in prison awaiting disposition of his pending armed robbery charge. I. FACTS AND PROCEDURAL HISTORY In 1998, after defendant’s conviction of larceny from the person, MCL 750.357, he was sentenced to a one- to fifteen-year term of imprisonment. On May 7, 2000, while on parole for this conviction, defendant visited his son at the home of his son’s mother, Adrian Harper. During this visit, defendant allegedly threatened Harper with a knife and stole money from her purse. He then stole Harper’s car keys and drove away in her car. On May 23, 2000, defendant was arrested and returned to the custody of the Michigan Department of Corrections. On the Wayne County Prosecutor’s recommendation, the magistrate signed an arrest warrant and complaint for armed robbery, MCL 750.529, on June 2, 2000. On June 18, 2001, the Detroit Police Department took defendant into their custody for ar raignment on the warrant. After a June 28, 2001, preliminary examination, defendant was bound over for trial on the armed robbery charge. On July 12,2001, the Department of Corrections sent a written notice of defendant’s incarceration to the prosecutor, requesting disposition of the pending warrant. The prosecutor’s office received this notice on July 16, 2001. On July 19, 2001, an information charged defendant with armed robbery. When the parties appeared for trial on January 9, 2002, defendant first moved to dismiss the charge, asserting violations of the 180-day rule and his right to a speedy trial. The trial court granted defendant’s motion to dismiss. On the prosecution’s appeal, the Court of Appeals peremptorily vacated the trial court’s order of dismissal and remanded the matter to the trial court to address the application of People v Chavies, 234 Mich App 274, 280-281; 593 NW2d 655 (1999). People v Williams, unpublished order of the Court of Appeals, entered June 9, 2003 (Docket No. 239662). Chavies relied on Smith in holding that the 180-day rule does not apply to persons who commit a crime while on parole because that person is subject to mandatory consecutive sentences. The Court of Appeals also ordered the trial court to make findings and discuss the application of the speedy trial factors articulated in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972). On remand, the trial court followed Chavies, supra, concluding that defendant was subject to mandatory consecutive sentencing for the pending armed robbery charge. Regarding the speedy trial issue, the court ruled that the charge against defendant should not have been dismissed because defendant had not insisted on a speedy trial and was unable to show prejudice. Upon receiving the trial court’s findings, the Court of Appeals dismissed the appeal and remanded the case to the circuit court for trial. Unpublished order of the Court of Appeals, entered July 9, 2004 (Docket No. 239662). We ordered the clerk to schedule oral argument on whether to grant the defendant’s application for leave to appeal or take other peremptory action. 472 Mich 872 (2005). II. STANDARD OF REVIEW This case involves the interpretation of MCL 780.131. We review issues of statutory interpretation de novo. People v Stewart, 472 Mich 624, 631; 698 NW2d 340 (2005). Our primary purpose in construing statutes is “to discern and give effect to the Legislature’s intent.” People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). “We begin by examining the plain language of the statute; where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed — no further judicial construction is required or permitted, and the statute must be enforced as written.” Id. Whether defendant was denied his right to a speedy trial is an issue of constitutional law, which we also review de novo. People v Hickman, 470 Mich 602, 605; 684 NW2d 267 (2004). We generally review a trial court’s factual findings for clear error. MCR 2.613(C); People v Knight, 473 Mich 324, 338; 701 NW2d 715 (2005). III. ANALYSIS A. THE STATUTORY 180-DAY RULE As a preliminary matter, before determining whether the 180-day rule was violated, we must first address whether defendant is entitled to assert the rights granted under the 180-day-rule statute although he faces mandatory consecutive sentencing on the pending charge. Because Smith, supra, would preclude defendant from making a 180-day-rule claim, we must address the validity of Smith, supra, before determining whether defendant’s claim is meritorious. We ultimately conclude that defendant’s rights under the 180-day rule were not violated (and, in so holding, reach the same outcome as if defendant were not entitled to the protections of the 180-day rule). Nonetheless, our conclusion that a defendant facing consecutive sentencing may assert a claim based on the 180-day-rule statute ensures that our holding is not dicta. The 180-day rule is set forth in MCL 780.131: (1) Whenever the department of corrections receives notice that there is pending in this state any untried warrant, indictment, information, or complaint setting forth against any inmate of a correctional facility of this state a criminal offense for which a prison sentence might be imposed upon conviction, the inmate shall be brought to trial within 180 days after the department of corrections causes to be delivered to the prosecuting attorney of the county in which the warrant, indictment, information, or complaint is pending written notice of the place of imprisonment of the inmate and a request for final disposition of the warrant, indictment, information, or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time or disciplinary credits earned, the time of parole eligibility of the prisoner, and any decisions of the parole board relating to the prisoner. The written notice and statement shall be delivered by certified mail. (2) This section does not apply to a warrant, indictment, information, or complaint arising from either of the following: (a) A criminal offense committed by an inmate of a state correctional facility while incarcerated in the correctional facility. (b) A criminal offense committed by an inmate of a state correctional facility after the inmate has escaped from the correctional facility and before he or she has been returned to the custody of the department of corrections. MCL 780.133 requires dismissal with prejudice if a prisoner is not brought to trial within the 180-day time limit set forth in the act: 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. Michigan courts have inconsistently interpreted MCL 780.131 in determining whether the 180-day rule applies to defendants facing mandatory consecutive sentencing upon conviction of the pending charge. In Loney, supra, the Court of Appeals held that the 180-day rule applies only when the pending charge would allow concurrent sentencing: The purpose of the statute is clear. It was intended to give the inmate, who had pending offenses not yet tried, an opportunity to have the sentences run concurrently consistent with the principle of law disfavoring accumulations of sentences. This purpose, however, does not apply in the instance of a new offense committed after imprisonment, nor where the statute, as in the case of an escape or attempted escape, sets up a mandatory consecutive sentence. The legislature was not concerning itself with the need for dispatch in the handling of a charge brought against an inmate for offenses committed while in prison. For the foregoing reasons, it is the opinion of this Court that the 180-day statute does not and was not intended to apply to offenses committed while in prison and for which offenses mandatory consecutive sentences are provided. [Loney, supra at 292-293 (emphasis in original).] After Loney, several panels of the Court of Appeals split on the issue. This Court resolved the conflict in People v Woodruff, 414 Mich 130; 323 NW2d 923 (1982). In Woodruff, supra at 137, this Court held that the 180-day rule “applies to any untried charge which carries a punishment of imprisonment in a state penal institution against any inmate, even if the offense was committed while in prison or carries a mandatory consecutive sentence.” The Woodruff Court determined that the statutory language unambiguously set forth the extent of the 180-day rule by expressly providing that it applied to “ ‘any’ untried charge against ‘any’ prisoner, ‘whenever’ the department of corrections shall receive notice of that charge.” Id. at 136. The Woodruff Court explained that the statute did not specify the type of sentence that determines the reach of the 180-day rule, but only generally referred to “ ‘a prison sentence.’ ” Id. Five justices thereafter agreed to overrule Woodruff in Smith, supra at 717-718 (LEVIN, J.), 719 (BOYLE, J.). Smith resurrected the Loney panel’s holding that the 180-day rule does not apply to offenses committed while in prison or to offenses that provide for mandatory consecutive sentences. In the lead opinion, Justice LEVIN explained that he agreed with the particular portion of Loney, supra at 292, that discussed the purpose of the 180-day-rule statute. Defendant argues that under the plain language of MCL 780.131, the 180-day rule applies to inmates facing mandatory consecutive sentencing. The prosecution acknowledges that the Smith and Chavies decisions extend the exceptions to the 180-day rule beyond the literal wording of the statute. We agree with defendant and hold that Smith and its progeny contravened the plain language of the 180-day-rule statute. Smith resorted to the purpose of the 180-day-rule statute in determining that the statute did not apply to defendants facing mandatory consecutive sentencing. MCL 780.131 delineates only two exceptions to the 180-day rule for those offenses committed by incarcerated and escaped prisoners. MCL 780.131(2). If the Legislature had meant to exclude inmates facing mandatory consecutive sentencing on pending charges from the ambit of MCL 780.131, it could have created such an exception. See People v Barbee, 470 Mich 283, 287; 681 NW2d 348 (2004) (“If the Legislature had meant for OV [offense variable] 19 to apply only in cases dealing with the obstruction of justice, it could have easily used that phrase.”). Smith overstepped its bounds by drafting an exception to the 180-day rule based on the purpose of the statute. As we explained in Woodruff, supra at 136, the language of MCL 780.131 expressly applies the 180-day rule to “any” untried charge against “any” prisoner “ [whenever” the Department of Corrections receives notice of that charge. The statute does not specify that the type of sentence determines the applicability of the rule. In particular, the statute does not distinguish concurrent and consecutive sentencing on the pending charge. We overrule Smith and its progeny to the extent that they are inconsistent with our ruling. Our decision is to have limited retroactive effect, applying to those cases pending on appeal in which this issue has been raised and preserved. See Cornell, supra at 367. B. APPLICATION OF THE 180-DAY-RULE STATUTE Defendant argues that several communications satisfied the notice provision of the statute. For example, on January 26, 2001, the Department of Corrections sent written notice to the Detroit Police Department that defendant was incarcerated and sought disposition of his warrant for armed robbery. The Department of Corrections then sent another such notice to the investigator assigned to defendant’s case, which the investigator received on February 5, 2001. An employee of the Department of Corrections subsequently communicated with the investigating officer several times regarding defendant’s status. Although investigating police officers may and do cooperate with the prosecutor, they are not part of the prosecutor’s office. Defendant has cited no persuasive authority for his argument that the investigating police officer is an agent of the prosecutor, or that knowledge by the police of defendant’s incarceration should be imputed to the prosecutor. The 180-day-rule statute expressly provides that the Department of Corrections must deliver a written notice of incarceration and request for disposition “to the prosecuting attorney of the county in which the warrant, indictment, information, or complaint is pending....” MCL 780.131(1). The first qualifying written notice from the Department of Corrections was received by the prosecutor on July 16, 2001. Cf. People v Fex, 439 Mich 117, 119-123; 479 NW2d 625 (1992), aff'd 503 US 43 (1993) (the 180-day period in Article III[a] of the Interstate Agreement on Detainers [IAD], MCL 780.601 et seq., does not commence until the prisoner’s request for final disposition of the charges against him or her has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him or her). There is no dispute that this written notice complied with the other requirements of the statute that it be delivered by certified mail and be accompanied by a statement setting forth defendant’s term of commitment, his time served, his time remaining to be served, the amount of sentence credits earned, the time of his parole eligibility, and any decisions of the parole board. Defendant’s trial commenced on January 9, 2002, which was less than 180 days after the prosecutor received notice. Therefore,defendant was tried within the statutory 180-day limit. C. MCR 6.004(D) In addition to MCL 780.131, the Michigan Court Rules also codify the 180-day rule in MCR 6.004(D). Because the 180-day rule, as expressed in the preJanuary 1, 2006, version of the court rule, may be violated even when there is no violation under the plain language of the statute, we must address whether defendant is entitled to relief under the court rule. We conclude that defendant is not entitled to relief under the court rule because the court rule must yield to the statute. At all times relevant to this case, MCR 6.004(D) provided: (D) Untried Charges Against State Prisoner. (1) The 180-Day Rule. Except for crimes exempted by MCL 780.131(2), the prosecutor must make a good faith effort to bring a criminal charge to trial within 180 days of either of the following: (a) the time from which the prosecutor knows that the person charged with the offense is incarcerated in a state prison or is detained in a local facility awaiting incarceration in a state prison, or (b) the time from which the Department of Corrections knows or has reason to know that a criminal charge is pending against a defendant incarcerated in a state prison or detained in a local facility awaiting incarceration in a state prison. For purposes of this subrule, a person is charged with a criminal offense if a warrant, complaint, or indictment has been issued against the person. (2) Remedy. In cases covered by subrule (l)(a), the defendant is entitled to have the charge dismissed with prejudice if the prosecutor fails to make a good-faith effort to bring the charge to trial within the 180-day period. When, in cases covered by subrule (l)(b), the prosecutor’s failure to bring the charge to trial is attributable to lack of notice from the Department of Corrections, the defendant is entitled to sentence credit for the period of delay. Whenever the defendant’s constitutional right to a speedy trial is violated, the defendant is entitled to dismissal of the charge with prejudice.[ ] MCR 6.004(D) was adopted in 1989 to codify, with two exceptions, this Court’s interpretation of the 180-day-rule statute in People v Hill, 402 Mich 272; 262 NW2d 641 (1978), People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959), and dictum in People v Castelli, 370 Mich 147; 121 NW2d 438 (1963). We hold that this version of MCR 6.004(D) was invalid to the extent that it improperly deviated from the statutory language. This Court’s holding in Hill, supra, and its dicta in Castelli, supra, along with the portion of the court rule implementing these holdings, improperly expanded the scope of the 180-day-rule statute by requiring the prosecutor to bring a defendant to trial within 180 days of the date that the Department of Corrections knew or had reason to know that a criminal charge was pending against the defendant. MCR 6.004(D)(1)(b). This language does not appear in the statute. The statutory trigger is notice to the prosecutor of the defendant’s incarceration and a departmental request for final disposition of the pending charges. The statute does not trigger the running of the 180-day period when the Department of Corrections actually learns, much less should have learned, that criminal charges were pending against an incarcerated defendant. We decline to read such nonexistent language into the statute. American Federation of State, Co & Muni Employees v Detroit, 468 Mich 388, 412; 662 NW2d 695 (2003). We overrule Hill, supra, and Castelli, supra, to the extent that they are inconsistent with MCL 780.131. We also give this decision limited retroactive effect. See Cornell, supra at 367. “ ‘If a particular court rule contravenes a legislatively declared principle of public policy, having as its basis something other than court administration. .. the [court] rule should yield.’ ” McDougall v Schanz, 461 Mich 15, 30-31; 597 NW2d 148 (1999) (citation omitted). The preamendment version of MCR 6.004(D) is not purely a matter of court administration. Instead, this court rule both codified and modified this Court’s interpretations of the statutory 180-day rule. MCR 6.004(D) does not solely attempt to “ ‘regulate the day-to-day procedural operations of the courts.’ ” McDougall, supra at 32, quoting People v McKenna, 196 Colo 367, 372; 585 P2d 275 (1978). As such, the court rule must yield to MCL 780.131. D. SPEEDY TRIAL Finally, defendant contends that the trial court erred in holding that his right to a speedy trial under US Const, Am VI, and Const 1963, art 1, § 20, was not infringed. Although the delay was lengthy, we affirm the trial court’s holding because the trial court’s factual findings underlying its decision were not clearly erroneous. X. WAIVER The prosecution initially argues that defendant waived his right to a speedy trial by agreeing to the trial date. Waiver is the intentional relinquishment or abandonment of a known right or privilege. People v Grimmett, 388 Mich 590, 598; 202 NW2d 278 (1972), overruled on other grounds in People v White, 390 Mich 245 (1973) overruled on other grounds in People v Nutt, 469 Mich 565 (2004). Courts “should ‘ “indulge every reasonable presumption against waiver of fundamental constitutional rights.” ’ ” People v Williams, 470 Mich 634, 641; 683 NW2d 597 (2004) (citations omitted). Waiver consists of (1) specific knowledge of the constitutional right and (2) an intentional decision to abandon the protection of the constitutional right. Grimmett, supra at 598. At the October 12, 2001, pretrial conference, the trial court offered January 9, 2002, as the earliest possible trial date. In response, defense counsel agreed, and defendant stated, “I can accept that.” This brief colloquy did not qualify as a knowing and intentional waiver of defendant’s right to a speedy trial. We see no evidence that defendant specifically considered and purposely waived his right to a speedy trial. Indeed, we will not presume waiver from a silent record. Williams, supra at 641. Nonetheless, defendant’s agreement to the trial date is relevant in weighing the Barker factors to determine if he was denied the right to a speedy trial. 2. THE BARKER FACTORS Both the United States Constitution and the Michigan Constitution guarantee a criminal defendant the right to a speedy trial. US Const, Am VI; Const 1963, art 1, § 20. We enforce this right both by statute and by court rule. MCL 768.1; MCR 6.004(A). The time for judging whether the right to a speedy trial has been violated runs from the date of the defendant’s arrest. United States v Marion, 404 US 307, 312; 92 S Ct 455; 30 L Ed 2d 468 (1971). In contrast to the 180-day rule, a defendant’s right to a speedy trial is not violated after a fixed number of days. People v McLaughlin, 258 Mich App 635, 644; 672 NW2d 860 (2003). This Court adopted the Barker standards for a speedy trial in Grimmett, supra at 606. In determining whether a defendant has been denied the right to a speedy trial, we balance the following four factors: (1) the length of delay, (2) the reason for delay, (3) the defendant’s assertion of the right, and (4) the prejudice to the defendant. Id. Following a delay of eighteen months or more, prejudice is presumed, and the burden shifts to the prosecution to show that there was no injury. People v Collins, 388 Mich 680, 695; 202 NW2d 769 (1972). Under the Barker test, a “presumptively prejudicial delay triggers an inquiry into the other factors to be considered in the balancing of the competing interests to determine whether a defendant has been deprived of the right to a speedy trial.” People v Wickham, 200 Mich App 106, 109-110; 503 NW2d 701 (1993). 3. APPLICATION OF THE BARKER FACTORS The first Barker factor is the length of the delay. Because the length of delay between defendant’s arrest and the trial was over nineteen months, the delay was presumptively prejudicial. Collins, supra at 695. Thus, we must consider the other Barker factors to determine if defendant has been deprived of the right to a speedy trial. Under the second Barker factor, the prosecution offered no compelling reason for the delay between defendant’s arrest and the time the prosecutor’s office received notice of defendant’s incarceration on July 16, 2001. In fact, the prosecutor agreed that the delay had been “inexcusable.” From the time the prosecutor’s office learned of defendant’s incarceration, it did attempt to move the proceedings along as quickly as possible. The trial court found that the delay between July 16, 2001, and the final pretrial conference on October 12, 2001, was attributable to defendant and his counsel. Defendant’s first pretrial conference on the armed robbery charge was set for July 27, 2001, only eleven days after the prosecutor received written notice that defendant was incarcerated and had a pending charge. This conference was adjourned when defendant’s attorney failed to appear. The conference was rescheduled for August 10, 2001. At this conference, defense counsel indicated that he intended to file a motion to dismiss the armed robbery charge based on a violation of the 180-day rule. However, counsel never filed this motion. The trial court scheduled another pretrial conference for September 21, 2001, but defense counsel once again failed to appear. On September 28, 2001, defendant sought to terminate his appointed attorney’s services. The court appointed a new attorney to represent defendant who had to familiarize himself with the case. Thus, we see no clear error in the trial court’s finding that defendant was' responsible for this delay. The delay between the October 12, 2001, final pretrial conference and the January 9, 2002, trial date can he attributed to docket congestion. “Although delays inherent in the court system, e.g., docket congestion, ‘are technically attributable to the prosecution, they are given a neutral tint and are assigned only minimal weight in determining whether a defendant was denied a speedy trial.’ ” People v Gilmore, 222 Mich App 442, 460; 564 NW2d 158 (1997), quoting People v Wickham, 200 Mich App 106, 111; 503 NW2d 701 (1993). The trial court weighed the third prong of the Barker test heavily against defendant. As of the final pretrial conference, defendant had not objected to any of the delays. Moreover, he accepted the January 9, 2002, trial date offered by the court. Further, defendant did not assert a speedy trial violation until the day before trial. Thus, the trial court did not clearly err in weighing this factor heavily against defendant. See Collins, supra at 692-694 (the prejudice prong weighed heavily against a defendant who did not assert his right to a speedy trial until the day before trial). The fourth and final prong of Barker concerns the prejudice to defendant. “There are two types of prejudice which a defendant may experience, that is, prejudice to his person and prejudice to the defense.” Collins, supra at 694. Defendant argues that he was personally prejudiced by the lengthy incarceration because (1) he received no credit for the time served before sentencing because he was on parole when he was arrested, and (2) the delay caused him to suffer mental anxiety. We agree that defendant suffered considerable personal deprivation by his 19-month incarceration before trial. Nonetheless, this Court has held that the prejudice prong of the Barker test may properly weigh against a defendant incarcerated for an even longer period if his defense is not prejudiced by the delay. See, e.g., People v Chism, 390 Mich 104, 115; 211 NW2d 193 (1973) (“on the matter of prejudice to defendant because of the length of time before his trial, the most important thing is that there is no evidence that a fair trial was jeopardized by delay, although obviously 27 months of incarceration is not an insignificant personal hardship”); see also Grimmett, supra at 606-607 (the prejudice prong weighed against the defendant where the delay was 19 months, but did not prejudice the defendant’s defense). Prejudice to the defense is the more serious concern, “ ‘because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’ ” Chism, supra at 114, quoting Barker, supra at 532. The trial court found that defendant’s ability to defend was not prejudiced by the delay. Because the record contains no specific proof of such prejudice, the trial court’s finding was not erroneous. Although a 19-month delay is presumptively prejudicial, the trial court did not err in ruling that defendant was not denied his right to a speedy trial. The trial court’s factual findings underlying this decision were not clearly erroneous. Defendant did not object to any delays, agreed to the trial date, and did not assert his right to a speedy trial until the day before trial. He did not demonstrate that any delay prejudiced the defense of his case. Further, defendant and his counsel were partially responsible for the delay. Therefore, the trial court properly declined to dismiss the charge against defendant. IV CONCLUSION Although the 180-day rule applied to defendant, the statute was not violated because the prosecution brought defendant to trial within 180 days of receiving notice that defendant was in prison, awaiting disposition of his pending charge. After weighing the four Barker factors, we conclude that defendant’s constitutional right to a speedy trial was not violated. Accordingly, we affirm the Court of Appeals order to remand for trial on the armed robbery charge. Taylor, C.J., and Weaver, Young, and Markman, JJ., concurred with CORRIGAN, J. Obiter dictum is defined as “[a] judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential....” Black’s Law Dictionary (7th ed). Compare, e.g., People v Charles Moore, 111 Mich App 633; 314 NW2d 718 (1981), rev’d 417 Mich 878 (1983), People v Grandberry, 102 Mich App 769; 302 NW2d 573 (1980), and People v Ewing, 101 Mich App 51; 301 NW2d 8 (1980) (agreeing with Loney that the 180-day rule does not apply to criminal defendants who are facing charges that would involve mandatory consecutive sentencing), with People v Hegwood, 109 Mich App 438; 311 NW2d 383 (1981), People v Marcellis, 105 Mich App 662; 307 NW2d 402 (1981), People v Pitsaroff, 102 Mich App 226; 301 NW2d 858 (1980), People v Anglin, 102 Mich App 118; 301 NW2d 470 (1980), and People v David Moore, 96 Mich App 754; 293 NW2d 700 (1980) (holding that criminal defendants are entitled to the protections of the 180-day rule even if facing mandatory consecutive sentencing). Chavies, supra at 280-281, followed Smith, supra. The Chavies panel held that “the statutory goal of allowing sentences to be served concurrently ‘does not apply in a case where a mandatory consecutive sentence is required upon conviction.’ ” Id. at 280 (citation omitted). People v Falk, 244 Mich App 718; 625 NW2d 476 (2001), reaffirmed Chavies, supra. The Falk panel held that the 180-day rule does not apply to a pending charge for which a possible sentence includes either imposition of a mandatory consecutive prison term or probation. Falk, supra at 721-722. Because MCL 780.131 does not specifically address how courts should compute the 180-day time period, we turn to MCR 1.108, which unambiguously governs the computation of a period prescribed by statute. MCR 1.108(1) provides: The day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period is included, unless it is a Saturday, Sunday, legal holiday, or holiday on which the court is closed pursuant to court order; in that event the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or holiday on which the court is closed pursuant to court order. Thus, the 180-day period begins to run the day after the prosecutor receives notice that a defendant is incarcerated and awaiting trial on pending charges. See People v Sinclair, 247 Mich App 685, 688-689; 638 NW2d 120 (2001) (holding that MCR 1.108[1] applies to computation of time for the 180-day rule set forth in the Interstate Agreement on Detainers [IAD], MCL 780.601 et seq.). MCR 6.004(D) has been amended to conform to the 180-day rule as set forth in MCL 780.131, effective January 1, 2006. The court rule now provides: (D) Untried Charges Against State Prisoner. (1) The 180-Day Rule. Except for crimes exempted by MCL 780.131(2), the inmate shall be brought to trial within 180 days after the department of corrections causes to be delivered to the prosecuting attorney of the county in which the warrant, indictment, information, or complaint is pending written notice of the place of imprisonment of the inmate and a request for final disposition of the warrant, indictment, information, or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time or disciplinary credits earned, the time of parole eligibility of the prisoner, and any decisions of the parole board relating to the prisoner. The written notice and statement shall be delivered by certified mail. (2) Remedy. In the event that action is not commenced on the matter for which request for disposition was made as required in subsection (1), 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.
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WEAVER, J. Plaintiff filed this action seeking a determination of paternity for a child conceived while the child’s mother was married to another man. Plaintiff alleges that the child was not an issue of the marriage, because he is the child’s biological father. The question presented is whether plaintiff has standing under the Paternity Act, MCL 722.711 et seq., to seek a determination of paternity. To resolve this question in this case, we must decide whether a default judgment of divorce that states it appears that “no children were born of this marriage and none are expected” is a sufficient judicial determination that the subject child was not the issue of the marriage. We reverse the judgment of the Court of Appeals and hold that plaintiff does not have standing under the Paternity Act because the default judgment is not clear and convincing evidence that the child was not an issue of the marriage. We remand this case to the circuit court for the entry of an order of summary disposition for the defendant. i Defendant-appellant Kim K. Jeudevine married James V. Charles III on July 11, 1996. Sometime before Charles filed for divorce and before defendant was served with the divorce complaint on August 12, 1998, defendant learned that she was pregnant. Defendant did not inform her husband that she was pregnant. Plaintiff Michael J. Barnes, Jr., alleges that he is the child’s biological father. Defendant did not respond to the complaint for divorce and did not appear at the divorce hearing. A default judgment of divorce was entered on November 2, 1998. The default judgment provides: [I]t satisfactorily appears to this Court that there has been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed, and there remains no reasonable likelihood that the marriage can be preserved; it further appearing that no children were born of this marriage and none are expected. On February 26, 1999, four months after the divorce was final, defendant gave birth. A birth certificate identifies plaintiff as the child’s father and an affidavit of parentage signed by plaintiff and defendant the day after the child’s birth states that plaintiff is the father. Plaintiff and defendant lived together and raised the child for over four years, until the summer of 2003, when plaintiff and defendant ended their relationship. Defendant has not allowed plaintiff to see the child since they stopped living together. On September 30, 2003, plaintiff filed a paternity action against defendant, alleging that he was the father of defendant’s child. To support his contention, plaintiff cites the judgment of divorce between Charles and defendant that states “that no children were born of this marriage and none are expected.” Plaintiff also cites the affidavit of parentage and the birth certificate identifying plaintiff as the father of the child. Defendant answered plaintiffs paternity action on October 22, 2003. She neither admitted nor denied plaintiffs claimed paternity. However, defendant denied that the child was born “out of wedlock,” because the child had been conceived while she was legally married to Charles. Defendant admitted signing the affidavit of parentage and the birth certificate, but claimed that she did so under duress. On November 10, 2003, a hearing was held in the Family Division of the Kalamazoo Circuit Court. The court granted defendant’s motion for summary disposition, concluding that plaintiff did not have standing to sue under the Paternity Act. The court found (1) that the child was conceived during the marriage and (2) that there was no court determination that the child was a child born or conceived during the marriage but is not the issue of that marriage. Plaintiff appealed, and the Court of Appeals reversed the order of the circuit court and remanded the matter to the circuit court for the reinstatement of plaintiffs claim. The Court of Appeals held that the statement in the default judgment of divorce that “no children were born of this marriage and none are expected” was a determination by a court that the child was not an issue of the marriage. Therefore, the Court of Appeals held that plaintiff had standing to sue under the Paternity Act. Defendant sought leave to appeal in this Court, and we ordered the clerk to schedule oral argument pursuant to MCR 7.302(G)(1) to determine whether to grant the defendant’s application. We asked the parties to include among the issues to be addressed: (1) [Wlhether plaintiff lacked standing to proceed under the Paternity Act, MCL 722.711 et seq., where the subject child’s mother was married at the time of the child’s conception, see Girard v Wagenmaker, 437 Mich 231 (1991); and (2) whether the default judgment of divorce amounted to a judicial determination that the child was born or conceived during the marriage but was not the issue of the marriage. II We review a trial court’s decision to grant summary disposition de novo. Wilson v Alpena Co Rd Comm, 474 Mich 161; 713 NW2d 717 (2006). Whether plaintiff has standing to bring a paternity action is a question of law that we also review de novo. In re KH, 469 Mich 621; 677 NW2d 800 (2004). hi The Paternity Act, MCL 722.711 et seq., confers on the circuit court jurisdiction over proceedings involving the determination of a child’s paternity. One purpose of the act relevant to this case is to assure, for the sake of the child, that the child’s legitimacy will not be decided by mere casual inference, but only after specific statutory procedures are followed. To this end, the act provides that a mother, a father, or in certain circumstances, the Department of Human Services, may bring an action in circuit court to establish paternity of a child, if that child is alleged to have been “born out of wedlock.” MCL 722.714. The Paternity Act defines “[c]hild born out of wedlock” as a child begotten and born to a woman who was not married from the conception to the date of birth of the child, or a child that the court has determined to be a child born or conceived during a marriage but not the issue of that marriage. [ MCL 722.711(a).] Thus, to establish that the child was born out of wedlock, plaintiff must prove that either (1) the child was not born or conceived during the mother’s marriage, or (2) though the child was born or conceived during a marriage, a court has determined that the child was not the issue of the marriage. Plaintiff filed this action alleging that he is the biological father of the defendant’s child. However, it is undisputed that defendant was married to another man when the child was conceived. Plaintiff gave birth just four months after her divorce was final. Therefore, to have standing to seek a determination of paternity, it is necessary for plaintiff to establish that a court “has determined” that there was a child born or conceived during the marriage and that the child was not an issue of the marriage. We recently reemphasized that “[t]he presumption that children born or conceived during a marriage are the issue of that marriage is deeply rooted in our statutes and case law.” In re KH, supra at 634. The presumption of legitimacy can be overcome only by a showing of clear and convincing evidence. Id. at 634 & n 24. In Girard v Wagenmaker, supra at 243, this Court held that in order for a biological father to establish standing under the Paternity Act, there must be a “prior court determination that a child is born out of wedlock.” The requirement that there be a prior court determination is consistent with the language of the statute, MCL 722.711(a). As analyzed in Girard, supra at 242 (citations omitted): “[H]as determined” is the present perfect tense of the verb “determine.” The present perfect tense generally “indicates action that was started in the past and has recently been completed or is continuing up to the present time,” or shows “that a current action is logically subsequent to a previous recent action.” Girard noted that requiring a prior determination that a child is not an issue of a marriage comports with Michigan’s longstanding presumption that children born or conceived during a marriage are legitimate issue of the marriage. Girard, supra at 246 (citing Serafin v Serafin, 401 Mich 629, 636; 258 NW2d 461 [1977]). In this case, the question is whether the circuit court’s statement in the judgment of divorce that there appeared to be no children born of or expected from the marriage was a court determination of sufficient specificity to lead to the conclusion that this child was not an issue of the marriage. Plaintiff asserts that this statement in the judgment of divorce qualifies as a court determination that the child was born out of wedlock and is not an issue of the marriage. We disagree. A “determination” is that which sets the limits to or the bounds of something. Webster’s New World Dictionary (3d ed), p 375. In its legal sense, a “determination” is that which “implies an ending or finality of a controversy or suit.” Black’s Law Dictionary (6th ed), p 450. To overcome the strong presumption of the legitimacy of a child born or conceived during a marriage, a court determination must settle with finality a controversy regarding the child’s legitimacy. This Court held as much in Girard, supra at 243, by concluding that where there was “[n]o previous action . . . undertaken to determine the child’s paternity [and] no ongoing actions... to determine the child’s paternity,” there was no prior court determination that a child was not the issue of a marriage. Because there had been no previous action to determine that the child was born out of wedlock, Girard held that a putative father did not have standing to seek paternity under the Paternity Act. Similarly, we stated in In re KH: By requiring a previous determination that a child is born out of wedlock, the Legislature has essentially limited the scope of parties who can rebut the presumption of legitimacy to those capable of addressing the issue in a prior proceeding — the mother and the legal father .... If the mother or legal father does not rebut the presumption of legitimacy, the presumption remains intact, and the child is conclusively considered to be the issue of the marriage despite lacking a biological relationship with the father. [In re KH, supra at 635.] Consistent with Girard and In re KH, we hold that a court determination under MCL 722.711(a) that a child is not “the issue of the marriage” requires that there be an affirmative finding regarding the child’s paternity in a prior legal proceeding that settled the controversy between the mother and the legal father. In this case, the dissents assert that the legal findings necessary to meet the “prior adjudication” requirement for a paternity suit are established by the default judgment. The Court of Appeals correctly recognized that “[a] default judgment is just as conclusive an adjudication and as binding upon the parties of whatever is essential to support the judgment as one which has been rendered following answer and contest.” Perry & Derrick Co, Inc v King, 24 Mich App 616, 620; 180 NW2d 483 (1970). However, we disagree with the Court of Appeals conclusion and the dissents’ assertion that the judgment of divorce in this case constitutes a “court determination” that the child was not an issue of the marriage under MCL 722.711(a). The holding in the default judgment that there were no children of the marriage simply does not address the similar but distinct question whether there was a child born or conceived during the marriage, and whether it was the issue of the marriage. In short, there have been no legal actions addressing the subject child’s paternity. The circuit court stated in the judgment of divorce merely that it appeared no children were born or expected of the marriage. The court’s statement does not support a conclusion that “the court has determined [the child] to be a child born or conceived during a marriage but not the issue of the marriage.” MCL 722.711(a). This conclusion is underscored by the requirement that a court find clear and convincing evidence that a child is not the issue of a marriage to overcome the presumed legitimacy of a child born or conceived during a marriage. In re KH, supra at 634 n 24. The circuit court did not make a finding that there was a child born or conceived during the marriage that was not an issue of the marriage. It, therefore, cannot be reasonably asserted that there was clear and convincing evidence of such a finding. For these reasons also, the court’s statement that it appeared that no children were born or expected of the marriage is not a sufficient court determination that there was a child conceived during the marriage that was not an issue of the marriage. Plaintiff also argues that the affidavit of parentage and the birth certificate assist him in his claim. Plaintiff argues that even if the judgment alone is insufficient, he should prevail because of the admissions inherent in these documents. We disagree. It was acknowledged in the affidavit of parentage and in the birth certificate that plaintiff was the biological father of the child. Yet, despite these documents, the child is still presumed to be a legitimate issue of the marriage. An affidavit of parentage is a stipulation by a woman of a man’s paternity under the Acknowledgment of Parentage Act, MCL 722.1001 et seq. This is not a court determination that the child was born out of wedlock, as is required under either the Paternity Act or the Acknowledgment of Parentage Act. Both acts provide that a child is born out of wedlock only when (1) the woman was not married at the time of the conception and birth, or (2) a court previously determined that the child was not an issue of the marriage. Further, a birth certificate is also not a court determination that the child was not an issue of the marriage. For these reasons, the affidavit of parentage and the birth certificate do not rebut the presumption that the child was an issue of defendant’s marriage to Charles. Charles is and remains the child’s legal father, and it is incorrect to suggest our decision leaves this child without a father. In this case, the subject child is presumed to be the issue of the marriage because the child was conceived during the marriage. The presumption remains until rebutted by clear and convincing evidence to the contrary. Consequently, the party wishing to overcome the presumption must present evidence that the child, despite the date of its conception, is not the issue of the marriage and a court must so hold. The circuit court’s statement in the judgment of divorce that it appeared that there would be no children does not rebut that presumption. Further, the legal father, Charles, never renounced the presumption of legitimacy. Because the child was not conceived outside of marriage, and because there is no prior court determination that the child is not an issue of the marriage, we hold that plaintiff does not have standing under the Paternity Act. For these reasons, we reverse the judgment of the Court of Appeals and remand to the circuit court for entry of an order of summary disposition for defendant. Taylor, C.J., and Corrigan and Young, JJ., concurred with Weaver, J. The affidavit of parentage states that by signing the document, the mother of the child admits that “she was not married when this child was born or conceived; or that this child, though born or conceived during a marriage, is not an issue of that marriage as determined by a court of law.” Unpublished opinion per curiam, issued August 23, 2005 (Docket No. 252840). 474 Mich 1056 (2006).
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Supplemental briefs filed by the parties pursuant to the order of May 12, 2006, are considered, and it is ordered that these cases be resubmitted without further briefing or oral argument. Weaver, J. I dissent and join the statement of Justice Kelly.
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MarkmAN, J. We granted leave to appeal to consider whether Michigan’s indeterminate sentencing scheme, which allows a trial court to set a defendant’s minimum sentence on the basis of factors determined by a pre ponderance of the evidence, violates the Sixth Amendment of the United States Constitution. Following a jury trial, defendant was convicted of one count of third-degree criminal sexual conduct, MCL 750.520d(l)(b), and one count of fourth-degree criminal sexual conduct, MCL 750.520e(l)(b). Defendant also pleaded guilty to a charge of being a third-offense habitual offender, MCL 769.11. The trial court sentenced defendant to a term of 127 to 360 months of incarceration on the third-degree criminal sexual conduct conviction. This range was calculated by the trial court’s assignment of points to defendant’s “offense variable” and “prior record variable” scores under a “preponderance of the evidence” standard. Defendant appealed his sentence, asserting that it was imposed contrary to the United States Supreme Court’s decision in Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004), because the sentence was based on facts that were not determined by the jury beyond a reasonable doubt. The Court of Appeals affirmed the conviction, relying on this Court’s decision in People v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004). Because we conclude that Michigan’s sentencing scheme does not offend the Sixth Amendment, we affirm defendant’s sentence. I. BACKGROUND The victim in this case and defendant were coworkers. She testified that defendant sexually assaulted her on four separate occasions between July 17, 2002, and October 25, 2002. The first incident took place on July 17, when defendant asked the victim to assist him with his computer at his cubicle. While there, defendant grabbed her hand and placed it on his clothed penis. In addition, defendant rubbed her clothed breast. The second incident occurred on July 19 at about 2:00 p.m. At that time, defendant entered the victim’s cubicle, again grabbed her hand and placed it over his penis, and made a sexual comment. The third incident occurred at around 4:00 p.m. on that same day. The victim testified that defendant accosted her in the parking garage and forced her into his car. Defendant demanded oral sex, and, when she refused, he grabbed the back of her head and forced her to perform oral sex until he ejaculated. The final incident took place on October 25 while the company was moving its office to a new location. As the victim moved things out of her cubicle, defendant entered, grabbed her hand and placed it over his penis, and made a sexual comment. The victim did not report any of these incidents until after defendant left the company. Defendant was prosecuted for one count of third-degree criminal sexual conduct and two counts of fourth-degree criminal sexual conduct. The jury convicted defendant of third-degree criminal sexual conduct and one count of fourth-degree criminal sexual conduct. Following the verdict, defendant pleaded guilty of being a third-offense habitual offender, MCL 769.11. At sentencing, the trial court scored ten points for offense variable 4 (psychological injury to a victim) and 15 points for offense variable 10 (exploitation of a vulnerable victim). Defendant’s total score placed him in the C-V cell, and the trial court sentenced him at the high end of the guidelines to a minimum term of 127 months and a maximum term of 360 months on the third-degree criminal sexual conduct conviction. Defendant was also sentenced to a concurrent term of 12 to 48 months on the fourth-degree criminal sexual conduct conviction. Defendant appealed, asserting that his minimum sentence violated the United States Supreme Court’s decision in Blakely because it was based on judicially ascertained facts that had not been determined by the jury beyond a reasonable doubt. Pursuant to Claypool, the Court of Appeals affirmed defendant’s convictions and sentence, observing that Blakely does not apply to Michigan’s sentencing scheme. People v Drohan, 264 Mich App 77, 89 n 4; 689 NW2d 750 (2004). This Court granted defendant’s application for leave to appeal, limited to the issue whether Blakely applies to Michigan’s sentencing scheme. 472 Mich 881 (2005). II. STANDARD OF REVIEW The issue in this case concerns whether Michigan’s sentencing scheme violates the Sixth Amendment of the United States Constitution because it permits a defendant’s minimum sentence to be determined on the basis of facts not proven to the jury beyond a reasonable doubt. A Sixth Amendment challenge presents a question of constitutional law that we review de novo. People v Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004). IH. ANALYSIS A. UNITED STATES SUPREME COURT The Sixth Amendment of the United States Constitution states: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation.... The United States Supreme Court first addressed the Sixth Amendment implications of the enhancement of a defendant’s sentence based on judicially ascertained facts in McMillan v Pennsylvania, 477 US 79; 106 S Ct 2411; 91 L Ed 2d 67 (1986). In McMillan, a Pennsylvania statute imposed a five-year mandatory minimum sentence if the trial court concluded, by a preponder anee of the evidence, that a defendant “ ‘visibly possessed a firearm’ ” during the commission of an enumerated felony. Id. at 81. However, the sentencing statute did not permit a sentence in excess of the maximum established for the enumerated felonies. The defendants, relying on In re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970), argued that the visible possession of a firearm constitutes an element of the offense, and, therefore, must be proven beyond a reasonable doubt. The Court, while noting that the Pennsylvania statute provided that the possession of a firearm was “not an element of the [enumerated] crimes,” McMillan, supra at 85-86, opined that this provision did not “relieve the prosecution of its burden of proving guilt. . ..” Id. at 87. Nonetheless, the Court found it significant that the statute neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. [Id. at 87-88.] The Court went on to note that the defendants’ claims “would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment. ...” Id. at 88. However, the Pennsylvania statute merely raised the minimum sentence that could be imposed by the trial court. Because the minimum sentence did not alter the maximum penalty authorized by the jury’s verdict, the statute did not violate the Constitution. While McMillan sanctioned the use of judicially ascertained facts to establish a minimum sentence, the United States Supreme Court, va. Jones v United States, 526 US 227, 239; 119 S Ct 1215; 143 L Ed 2d 311 (1999), stated that the use of such facts to increase the maximum sentence posed “ ‘grave and doubtful constitutional questions ....’” (Citation omitted.) la Jones, the defendant was convicted of violating the federal carjacking statute. The statute called for a 15-year maximum, but also provided for a 25-year maximum where the victim suffered serious bodily injury, and a potential life term where the victim was killed. 18 USC 2119. The trial court imposed a 25-year sentence, determining by a preponderance of the evidence that the victim had suffered “serious bodily injury.” The defendant argued that the statute created three distinct offenses, while the prosecutor argued that the statute created a single crime with the choice of three maximum penalties. In analyzing which interpretation of the statute should prevail, the Court observed that, under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Because our prior cases suggest rather than establish this principle, our concern about the Gov ernment’s reading of the [carjacking] statute rises only to the level of doubt, not certainty. [Jones, supra at 243 n 6.] As a result of these concerns, the Court held that the statute established three separate offenses and, therefore, reversed the defendant’s conviction. The following year, in Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), the United States Supreme Court acted on the concerns it had expressed in Jones. In Apprendi, the defendant was sentenced to an additional two years above the statutory maximum, on the basis of the trial court’s determination by a preponderance of the evidence that the defendant had acted with an intent to intimidate an individual based on that individual’s race. The Court undertook its analysis by noting that the Fourteenth Amendment “due process” clause and the Sixth Amendment “right to jury trial,” considered together, “indisputably entitle a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ” Id. at 477, quoting United States v Gaudin, 515 US 506, 510; 115 S Ct 2310; 132 L Ed 2d 444 (1995). At the time of the American Revolution, a trial court had very little discretion in sentencing. Apprendi, supra at 479. Rather, there was generally a specific sanction for each criminal offense — a sanction determined by a jury’s verdict. Id. The Court explained that, during this period, where a statute created a higher degree of punishment than the common law, the prosecutor “must expressly charge it to have been committed under those circumstances [established in the statute], and must state the circumstances with certainty and precision. [2 M. Hale, Pleas of the Crown *170].” Archbold, Pleading and Evidence in Criminal Cases, at 51. If, then, “upon an indictment under the statute, the prosecutor prove the felony to have been committed, but fail in proving it to have been committed under the circumstances specified in the statute, the defendant shall be convicted of the common-law felony only.” Id. at 188. [Apprendi, supra at 480-481.] The 19th century shift away from fixed sentences gave trial courts increasingly broad discretion in sentencing. However, such discretion was limited by “ ‘fixed statutory or constitutional limits.’ ” Id. at 482, quoting Williams v New York, 337 US 241, 247; 69 S Ct 1079; 93 L Ed 1337 (1949). Thus, just as in revolutionary times, a defendant’s maximum sentence was fixed by the maximum sentence permitted at the time of the jury’s verdict. In contrast, the New Jersey statute permitted a trial court to sentence a defendant beyond the maximum fixed by the statute that served as the basis for the jury’s conviction. The Court stated: If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not — at the moment the State is put to proof of those circumstances — be deprived of protections that have, until that point, unquestionably attached. [Apprendi, supra at 484.] Accordingly, the Court held that under the Sixth Amendment, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. Thus, any fact that “expose[s] the defendant to a greater punishment than that authorized by the jury’s guilty verdict[,]” id. at 494, is an element of the crime that must be proven beyond a reasonable doubt. Conversely, a fact “that supports a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense[,]” id. at 494 n 19 (emphasis in the original), is a sentencing factor that does not implicate the Sixth Amendment. The United States Supreme Court reinforced this decision two years later, in Harris v United States, 536 US 545; 122 S Ct 2406; 153 L Ed 2d 524 (2002). In Harris, the defendant pleaded guilty of distribution of marijuana. At sentencing, the trial court determined by a preponderance of the evidence that the defendant had brandished a firearm during the drug transaction and, as a result, imposed a seven-year minimum, as required under 18 USC 924 (c)(l)(A)(ii). The trial court did not alter the defendant’s maximum sentence. The defendant argued that, the imposition of a minimum sentence violated Apprendi and that, as a result, McMillan was no longer sound authority. Justice Kennedy, writing for a four-justice plurality, noted that the Sixth Amendment requires that “ ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” Harris, supra at 563, quoting Apprendi, supra at 490. However, once the defendant has been convicted of an offense, “the Government has been authorized to impose any sentence below the maximum.” Harris, supra at 565. The defendant also argued that mandatory minimum sentences violated “the concerns underlying Apprendi,” id., because they require a trial court to impose a sentence even if it would have otherwise chosen a lower sentence. However, Justice Kennedy noted that “[t]he Fifth and Sixth Amendments ensure that the defendant ‘will never get more punishment than he bargained for when he did the crime,’ but they do not promise that he will receive ‘anything less’ than that.” Id. at 566, quoting Apprendi, supra at 498 (Scalia, J, concurring) (emphasis omitted). Justice Kennedy concluded: Read together, McMillan and Apprendi mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are the elements of the crime for the purposes of the constitutional analysis. Within the range authorized by the jury’s verdict, however, the political system may channel judicial discretion — and rely upon judicial expertise — by requiring defendants to serve minimum terms after judges make certain factual findings. [Harris, supra at 567.][ ] The United States Supreme Court clarified the importance of the term “statutory maximum” within the meaning of sentencing guidelines in Blakely. In that case, the defendant pleaded guilty to a charge of second-degree kidnapping. While the statute called for a ten-year maximum sentence, under Washington’s sentencing guidelines scheme, the defendant was subject to a fixed sentence within a “standard range” of between 49 to 53 months. The guidelines statute permitted a trial court to depart above the guidelines maximum, up to the statutory maximum of ten years, if it found “substantial and compelling” reasons to do so. The trial court determined that the defendant acted with “deliberate cruelty” and, therefore, sentenced him to 90 months — 37 months beyond the standard maximum. The prosecutor argued that the sentence was consistent with Apprendi because it fell below the ten-year statutory maximum. However, the Court noted: [T]he “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.... In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. [Blakely, supra at 303-304 (emphasis in the original).] The defendant’s prior convictions and the facts elicited from his guilty plea, by themselves, could not have supported the imposition of the 90-month sentence. Id. at 304. Therefore, “the State’s sentencing procedure did not comply with the Sixth Amendment, [and the defendant’s] sentence is invalid.” Id. at 305. However, the Sixth Amendment does not prohibit all judicial fact-finding. In addressing indeterminate sentencing schemes, the Court stated: [T]he Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of the jury’s traditional function of finding the facts essential to lawful imposition of the penalty. Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence — and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10-year sentence — and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury. [Id. at 308-309 (emphasis in the original).] Last year, the United States Supreme Court applied the Sixth Amendment to the federal sentencing guidelines in United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005). In Booker, the defendant was convicted of possession with intent to distribute at least 50 grams of crack cocaine. The evidence elicited at trial established that he had possessed 92 grams of cocaine. The statute called for a minimum sentence of ten years in prison and a maximum sentence of life in prison. 21 USC 841 (b) (1) (A) (iii). On the basis of the defendant’s criminal history and the quantity of drugs that the jury found that he possessed, the sentencing guidelines dictated a sentence of 210 to 262 months in prison. At sentencing, the trial court found two additional facts by a preponderance of evidence: (1) that the defendant had possessed an additional 566 grams of crack cocaine, and (2) that the defendant had also committed obstruction of justice. Those findings mandated that the trial court select a sentence between 360 months and life imprisonment, and the court imposed a sentence of 360 months in prison. Just as in Blakely, the Court focused on the mandatory nature of the sentencing guidelines. Booker, supra at 749-750. Solely on the basis of the defendant’s criminal history and the facts supported by the jury’s verdict, the trial court could not have imposed the 360-month sentence. Id. at 751. The Court concluded that, just as in Blakely, “the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.” There is no relevant distinction between the sentence imposed pursuant to the Washington statutes in Blakely and the sentences imposed pursuant to the Federal Sentencing Guidelines in these cases. [Id., quoting Blakely, supra at 305 (citation omitted).] Therefore, the Court “reaffirm[ed] [its] holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker, supra at 756. However, just as in Blakely, the Court did not hold that all judicial fact-finding violates the Sixth Amendment. Indeed, the Court clarified that, [i]f the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.... For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant. [Id. at 750.][ ] The constitutional rule of Apprendi, Blakely, and Booker can be summarized as follows: (1) a trial court may not impose a sentence greater than the statutory maximum unless it does so on the basis of a prior conviction or the fact at issue is “admitted by the defendant or proved to a jury beyond a reasonable doubt[,]” Booker, supra at 756; (2) where a defendant’s maximum sentence is calculated through the use of mandatory sentencing guidelines, the statutory maximum is the maximum sentence that may be imposed under those guidelines, based solely on the defendant’s prior convictions and those facts proven beyond a reasonable doubt, Blakely, supra at 303-304; and (3) a trial court may consider facts and circumstances not proven beyond a reasonable doubt in imposing a sentence within the statutory range, McMillan, supra; Harris, supra; Booker, supra. B. AFTERMATH State courts, consistently with Apprendi, Blakely, and Booker, have held that the Sixth Amendment bars the use of judicially ascertained facts to increase a defendant’s sentence only when that sentence is increased beyond the “statutory maximum.” For example, the New Jersey Supreme Court recognized in State v Abdullah, 184 NJ 497; 878 A2d 746 (2005), that the applicability of Blakely hinges on the question whether the trial court uses judicially ascertained facts to impose a sentence above the statutory maximum. In Abdullah, the defendant was convicted of murder and two counts of second-degree burglary. The defendant was sentenced to life imprisonment with a 30-year parole disqualifier on the murder conviction and to a consecutive ten-year prison term with a five-year parole dis-qualifier on the burglary convictions. Under New Jersey law, a defendant convicted of burglary is entitled to a presumptive sentence of seven years. Id. at 503. Because the defendant was entitled to no more than the seven-year sentence for burglary on the basis of the jury’s verdict alone, imposition of the ten-year sentence on the basis of judicially ascertained facts was “ ‘incompatible with the holdings in [Apprendi, Blakely, and Booker]. ’ ” Id. at 505 (citation omitted). On the other hand, the court noted that there is no presumptive term for murder. Id. at 504. “ ‘[Bjecause the crime of murder has no presumptive term, defendant, like every murderer, knows he is risking life in prison.’ ” Id. at 508 (citation omitted). Thus, the upper sentencing limit based on the jury’s verdict alone was life imprisonment. Accordingly, the murder sentence was not in derogation of the Sixth Amendment. See also State v Stover, 140 Idaho 927, 931; 104 P3d 969 (2005) (stating that “[t]he Blakely Court recognized that an indeterminate sen- fencing system does not violate the Sixth Amendment”); State v Rivera, 106 Hawaii 146, 157; 102 P3d 1044 (2004) (noting that “the Blakely majority’s declaration that indeterminate sentencing does not abrogate the jury’s traditional factfinding function effectively excises indeterminate sentencing schemes such as Hawaii’s from the decision’s sixth amendment analysis”); Commonwealth v Junta, 62 Mass App Ct 120, 129 n 11; 815 NE2d 254 (2004) (finding that “[t]he recent United States Supreme Court decision in [Blakely] has no application here, as the Massachusetts sentencing scheme provides for indeterminate sentences”). The courts in Pennsylvania, a state with a sentencing scheme bearing a strong resemblance to Michigan’s, have also held that the use of judicially ascertained facts to increase a defendant’s minimum sentence is permitted by the Sixth Amendment. The Pennsylvania Superior Court addressed the implications of Blakely on its sentencing scheme in Commonwealth v Smith, 863 A2d 1172 (Pa Super, 2004). In Smith, the defendant claimed that Pennsylvania’s sentencing scheme violated Blakely, because it allowed a trial court to use judicially ascertained facts to increase the defendant’s minimum sentence. The court rejected this claim, noting that Pennsylvania utilizes an indeterminate sentencing scheme with presumptive sentencing guidelines which limit the judge’s discretion only concerning the minimum sentence. 42 Pa. C.S.A. § 9721; 204 Pa. Code § 303.9(h). The United States Supreme Court has previously determined that this system does not violate the Sixth Amendment so long as the enhanced minimum sentence is not beyond that authorized by the jury verdict. [Harris, supra]. Because of the link with the maximum sentence, enhanced minimum sentences, when enhanced by factors in the guidelines, are not beyond sentences authorized by the jury verdict. [McMillan, supra,]. Blakely is only implicated in Pennsylvania to the extent that an enhanced minimum term leads to a longer period of incarceration by extending the date at which the defendant is eligible to be released. Yet, because there is no limit, other than the statutory maximum, on the maximum term a judge may set, and due to the discretion vested in the parole board, the Pennsylvania sentencing scheme and guidelines evade even these Blakely concerns. The Blakely Court, itself, noted that indeterminate guidelines do not increase judicial discretion “at the expense of the jury’s function of finding the facts essential to a lawful imposition of penalty,” and judicial (or parole board) fact-finding does not infringe on a defendant’s “legal right to a lesser sentence.” Blakely [supra at 309]. Here, the trial court did not employ an enhancement provision based on a judicially determined fact, but instead, imposed its sentence pursuant to the discretion provided it under the sentencing code and the sentencing guidelines. The sentence was proper under the code and the guidelines, and the guidelines, themselves, are constitutional under Blakely. [Smith, supra at 1178-1179.] C. MICHIGAN’S SENTENCING SCHEME This Court likewise has noted that the Sixth Amendment bars the use of judicially ascertained facts to increase a defendant’s maximum sentence beyond that authorized by the jury’s verdict. Claypool, supra at 730 n 14. However, a defendant does not have a right to anything less than the maximum sentence authorized by the jury’s verdict, and, therefore, judges may make certain factual findings to select a specific minimum sentence from within a defined range. Blakely, supra at 308-309. In Claypool, supra at 730 n 14, this Court noted that Blakely does not affect Michigan’s sentencing scheme. We explained: Blakely concerned the Washington state determinate sentencing system, which allowed a trial judge to elevate the maximum sentence permitted by law on the basis of facts not found by the jury but by the judge. Thus, the trial judge in that case was required to set a fixed sentence imposed within a range determined by guidelines and was able to increase the maximum sentence on the basis of judicial fact-finding. This offended the Sixth Amendment, the United States Supreme Court concluded, because the facts that led to the sentence were not found by the jury. Blakely, supra at [305]. Michigan, in contrast, has an indeterminate sentencing system in which the defendant is given a sentence with a minimum and a maximum. The maximum is not determined by the trial judge but is set by law. MCL 769.8. The minimum is based on guidelines ranges as discussed in the present case and in [People v Babcock, 469 Mich 247; 666 NW2d 231 (2003)]. The trial judge sets the minimum but can never exceed the maximum (other than in the case of a habitual offender, which we need not consider because Blakely specifically excludes the fact of a previous conviction from its holding). Accordingly, the Michigan system is unaffected by the holding in Blakely that was designed to protect the defendant from a higher sentence based on facts not found by the jury in violation of the Sixth Amendment. [Id.] Having concluded that Blakely applies only to bar the use of judicially ascertained facts to impose a sentence beyond that permitted by the jury’s verdict, we must next determine what constitutes the “statutory maximum” under Michigan’s sentencing scheme. MCL 769.8(1) states: When a person is convicted for the first time for committing a felony and the punishment prescribed by law for that offense may be imprisonment in a state prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term, except as otherwise provided in this chapter. The maximum penalty provided by law shall be the maximum sentence in all cases except as provided in this chapter and shall be stated by the judge in imposing the sentence. In other words, in all but a few cases, a sentence imposed in Michigan is an indeterminate sentence. The maximum sentence is not determined by the trial court, but rather is set by law. Michigan’s sentencing guidelines, unlike the Washington guidelines at issue in Blakely, create a range within which the trial court must set the minimum sentence. However, a Michigan trial court may not impose a sentence greater than the statutory maximum. While a trial court may depart from the minimum guideline range on the basis of “substantial and compelling reason[s],” MCL 769.34(3); Babcock, supra at 256-258, such departures, with one exception, are limited by statute to a minimum sentence that does not exceed “ 2h of the statutory maxi mum sentence.” MCL 769.34(2)(b). Thus, the trial court’s power to impose a sentence is always derived from the jury’s verdict, because the “maximum-minimum” sentence will always fall within the range authorized by the jury’s verdict. Defendant asserts that the “maximum-minimum” under the guidelines constitutes the “statutory maximum” for Blakely purposes because a trial court is required to depart on the basis of a finding of aggravating factors that, as a practical matter, will subject the defendant to an increase in the actual time the defendant will be required to serve in prison. However, defendant’s interpretation is inconsistent with the nature of the protection afforded by the Sixth Amendment. At common law, a jury’s verdict entitled a defendant to a determinate sentence. Apprendi, supra. During the 19th century, American courts began moving away from such sentencing by according trial courts the discretion to determine a defendant’s sentence. However, this new discretion was limited by fixed statutory or constitutional limits. Id. In other words, while a trial court could impose a sentence less than the maximum authorized by the jury’s verdict, the court could not impose a sentence greater than that allowed by the statute that the defendant had been convicted of violating. In short, the Sixth Amendment ensures that a defendant will not be incarcerated for a term longer than that authorized by the jury upon a finding of guilt beyond a reasonable doubt. However, the Sixth Amendment does not entitle a defendant to a sentence below that statutory maximum. Apprendi, supra at 498 (Sealia, J., concurring). Rather, under the Sixth Amendment, the jury effectively sets the outer limits of a sentence and the trial court is then permitted “to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute.” Id. at 481 (emphasis omitted); McMillan, supra; Harris, supra. When defendant, a third-offense habitual offender, committed third-degree criminal sexual conduct, he did so knowing that he was risking 30 years in prison. When defendant was, in fact, sentenced to a maximum of 30 years in prison, he received all the protections he was entitled to under the Sixth Amendment. Therefore, the trial court’s exercise of discretion in imposing a sentence greater than the “maximum-minimum,” but within the range authorized by the verdict, fully complies with the Sixth Amendment. Finally, but not insignificantly, there is no guarantee that an incarcerated person will be released from prison after the person has completed his or her minimum sentence. Ultimately, the parole board retains the discretion to keep a person incarcerated up to the maximum sentence authorized by the jury’s verdict. Accordingly, because a Michigan defendant is always subject to serving the maximum sentence provided for in the statute that he or she was found to have violated, that maximum sentence constitutes the “statutory maxi mum” as set forth in Blakely. Therefore, we reaffirm our statement from Claypool, supra at 730 n 14, that “the Michigan system is unaffected by the holding in Blakely that was designed to protect the defendant from a higher sentence based on facts not found by the jury in violation of the Sixth Amendment.” IV CONCLUSION We conclude that, under the Sixth Amendment, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, supra at 490. The statutory maximum constitutes “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury’s verdict or admitted by the defendant.” Blakely, supra at 303 (emphasis omitted). Under Michigan’s sentencing scheme, the maximum sentence that a trial court may impose on the basis of the jury’s verdict is the statutory maximum. MCL 769.8(1). In other words, every defendant, as here, who commits third-degree criminal sexual conduct knows that he or she is risking 15 years in prison, assuming that he or she is not an habitual offender. MCL 750.520d(2). As long as the defendant receives a sentence within that statutory maximum, a trial court may utilize judicially ascertained facts to fashion a sentence within the range authorized by the jury’s verdict. Accordingly, we reaffirm our statement in Claypool, and affirm defendant’s sentence. Taylor, C.J., and Corrigan and Young, JJ., concurred with Markman, J. The amicus curiae brief of the Criminal Defense Attorneys of Michigan at page 11 points out that the guidelines’ “intermediate sanctions” establish fixed and determinate sentences. MCL 769.34(4)(a) states: If the upper limit of the recommended minimum sentence range for a defendant determined under the sentencing guidelines set forth in chapter XVII is 18 months or less, the court shall impose an intermediate sanction unless the court states on the record a substantial and compelling reason to sentence the individual to the jurisdiction of the department of corrections. An intermediate sanction may include a jail term that does not exceed the upper limit of the recommended minimum sentence range or 12 months, whichever is less. Because defendant here was not subject to an intermediate sanction, we decline to address whether and to what extent Blakely affects the intermediate sentencing scheme. Defendant successfully challenged the scoring of 15 points for offense variable 8 (victim asportation or captivity). The trial court scored offense variable 8 at zero points. The reduction of 15 points did not alter the guidelines range. The minimum sentence range in the C-V cell is 51 months to 127 months. As a third-offense habitual offender, defendant was subject to “imprisonment for a maximum term that is not more than twice the longest term prescribed by law for a first conviction of that offense . . . .” MCL 769.11(l)(a). The maximum term for a first conviction of third-degree criminal sexual conduct is 15 years. MCL 750.520d(2). Therefore, the maximum term for a third-offense habitual offender is 30 years. The Court of Appeals rejected defendant’s argument that Claypool was not binding. However, the Court went on to note that “given the large number of recent criminal appeals in which this issue has been raised, we request that the Supreme Court issue its opinion concerning whether footnote fourteen in Claypool constitutes binding precedent.” Id. (emphasis omitted). At the time, Pennsylvania law provided that a mandatory minimum sentence “ ‘shall not exceed one-half of the maximum sentence imposed.’ ” Id. at 88 n 4, quoting 42 Pa Cons Stat 9756(b). In In re Winship, the United States Supreme Court addressed the issue whether the “proof beyond a reasonable doubt” standard applies to determinations of delinquency where a minor is charged with an act that would constitute a crime if committed by an adult. The Court held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id. at 364. The Court reasoned that adjudications of delinquency, like criminal convictions, deprive a minor of his or her liberty for some period and, therefore, that such adjudications are “ ‘comparable in seriousness to a felony prosecution.’ ” Id. at 366 (citation omitted). Accordingly, every fact necessary to adjudicate a minor as delinquent must be proven by the state beyond a reasonable doubt. Id. at 368. The statute, which has not been amended in any relevant manner since Harris, states in pertinent part: [A]ny person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime— (i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, he sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years. Justice Breyer, one of the dissenting justices in Apprendi, concurred in the judgment in Harris, stating: I continue to believe that the Sixth Amendment permits judges to apply sentencing factors — whether those factors lead to a sentence beyond the statutory maximum (as in Apprendi) or the application of a mandatory minimum (as here). And because I believe that extending Apprendi to mandatory mínimums would have adverse practical, as well as legal, consequences, I cannot yet accept its rule. I therefore join the Court’s judgment, and I join its opinion to the extent that it holds that Apprendi does not apply to mandatory mínimums. [Id. at 569-570 (Breyer, J., concurring in part and concurring in the judgment).] An indeterminate sentence is one “of an unspecified duration, such as one for a term of 10 to 20 years.” Black’s Law Dictionary (8th ed). In other words, while a defendant may serve a sentence of up to 20 years, the defendant may be released from prison at the discretion of the parole board at any time after the defendant serves the ten-year minimum. In contrast, a determinate sentence is “[a] sentence for a fixed length of time rather than for an unspecified duration.” Id. Such a sentence can either be for a fixed term from which a trial court may not deviate, see, e.g., MCL 750.227b(l) (“A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony .. . shall be imprisoned for 2 years.”), or can be imposed by the trial court within a certain range, e.g., Blakely, supra at 300 (stating that, under Washington’s sentencing act, the defendant was entitled to a sentence within a range of 49 to 53 months.) In a separate majority opinion, authored by Justice Breyer, the Court limited application of its opinion to the portion of the sentencing guidelines that made them mandatory. As a result, the federal guidelines are now advisory. Id. at 756-757. Crimes requiring a determinate sentence include carrying or possessing a firearm when committing or attempting to commit a felony, MCL 750.227b (imposing a flat two-year sentence); and first-degree murder, MCL 750.316 (imposing a mandatory fife sentence without the possibility of parole). We note that the statutory maximum sentence is subject to enhancement based on Michigan’s habitual offender act, MCL 769.12. Under the habitual offender statute, a trial court may impose a maximum sentence beyond the statutory maximum upon a determination that the defendant “has been convicted of any combination of 3 or more felonies or attempts to commit felonies . . . .” MCL 769.12(1). Thus, the statutory maximum sentence of a defendant who is convicted of being an habitual offender is as provided in the habitual offender statute, rather than the statute he or she was convicted of offending. Apprendi and Blakely specifically allow for an increase in a defendant’s maximum sentence on the basis of “the fact of a prior conviction . . . .” Apprendi, supra at 490. Further, we note that our holding in this case does not affect the ability of the trial court to impose a jail sentence and/or probation in lieu of a prison sentence where permitted by law. See, e.g., MCL 769.34(4)(c). Generally, the maximum term of probation is two years for a defendant convicted of a misdemeanor and five years for a defendant convicted of a felony. MCL 771.2(1). For certain enumerated felonies, the maximum term of probation is “any term of years, but not less than 5 years.” MCL 771.2a(2). We recently held that MCL 769.34 does not apply when a defendant is convicted of a crime punishable with imprisonment for “life or any term of years” because the minimum will never exceed % of the statutory maximum sentence of life. People v Powe, 469 Mich 1032 (2004). Because a jury’s verdict in such cases authorizes a life sentence, the imposition of any sentence is within the range authorized by that verdict. Accordingly, a trial court may utilize judicially ascertained facts to sentence a defendant to a term up to life imprisonment when life is the maximum sentence. Harris, supra; McNally, supra. In Claypool, supra at 739, then Chief Justice CORRIGAN, concurring in part and dissenting in part, noted that “[gjiven the response to Blakely, it appears likely that the issue of mandatory minimum sentences will need to be settled.” We settle this issue today by holding that departures from the minimum guidelines are not implicated by Blakely.
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YOUNG, J. Plaintiff is a physician with staff privileges at defendant Mercy Memorial Hospital. This lawsuit arises from an internecine dispute over nursing orders for patient intake at the defendant hospital. Plaintiffs insistence on requiring the nursing staff to use his special standing orders instead of defendant hospital’s standing orders eventually led to a conflict with defendant hospital and a peer review of plaintiffs professional practices as well as disciplinary action. Plaintiffs challenge of the peer review conducted by some of the defendants and the resulting disciplinary action taken against him requires that we consider the scope of immunity provided for peer review. In order to promote effective patient care in hospitals, the Legislature enacted MCL 331.531, commonly referred to as Michigan’s peer review immunity statute. The purpose of statutory peer review immunity is to foster the free exchange of information in investigations of hospital practices and practitioners, and thereby reduce patient mortality and improve patient care within hospitals. The Legislature obviously intended to protect peer review participants from liability for participation in this communicative and evaluative process. In order to create an environment in which such candid explorations of the quality of hospital patient care can occur, among other protections, the Legislature prohibited the discovery of communications made within the peer review process and granted immunity from liability to all who participate in peer review without “malice.” The primary question posed in this appeal is the scope of judicial review of peer review permitted under MCL 331.531. A secondary question is whether the judicially created “doctrine of nonintervention” — a doctrine suggesting that staffing decisions of private hospitals are generally beyond the scope of judicial review — is compatible with the peer review immunity statute. Finally, we must also construe the undefined peer review statutory term “malice.” Because the peer review immunity statute establishes qualified immunity from liability for peer review communication and participants who provide such communications, we conclude that there is no justification for recognizing the nonintervention doctrine that the lower courts in this state have applied in considering claims arising from peer review. We therefore hold that this doctrine cannot supplement or supplant the statutory immunity granted by our Legislature. Furthermore, there is no basis, statutory or otherwise, to justify the application of a nonintervention doctrine to general staffing decisions of a private hospital. We also hold that, consistent with the objects of the peer review immunity statute, malice should be defined as set forth by the Court of Appeals in Veldhuis v Allan. Thus, we hold that malice can be established when a “person supplying information or data [to a peer review entity] does so with knowledge of its falsity or with reckless disregard of its truth or falsity. Similarly, a review entity is not immune from liability if it acts with knowledge of the falsity, or with reckless disregard of the truth or falsity, of information or data which it communicates or upon which it acts.” Accordingly, we vacate the judgment of the Court of Appeals and remand this case to the Monroe Circuit Court for further proceedings consistent with this opinion. FACTS AND PROCEDURAL HISTORY Plaintiff is a physician with staff privileges at defendant Mercy Memorial Hospital. Plaintiff was dissatis fied with defendant hospital’s standard nursing policy requiring nurses to document patients’ prescribed medications and dosages by either copying the label on their prescription containers or copying a list of medications carried by patients. As a consequence, plaintiff created his own specialized orders directing the nursing staff to obtain very specific information from plaintiffs incoming patients about their prescription drug use. Plaintiffs orders directed the nursing staff, as part of the admissions process for his patients, to assume a far more aggressive investigative role regarding patient medication. Defendants disapproved plaintiffs standing orders, and instructed the nursing staff to ignore them. In several cases where the nurses disregarded plaintiffs special orders and followed defendant hospital’s nursing directives, plaintiff prepared “incident reports” referring such cases to peer review committees for investigation of “potential medical errors.” Further, plaintiff began making notations in patient records that his disregarded orders were intended to “[p]revent serious medication errors in the past.” Defendants initiated peer review proceedings against plaintiff based on plaintiffs failure to complete medical records and his insistence that the nursing staff follow his standing orders rather than comply with hospital policy. An ad hoc investigatory committee reviewed plaintiffs conduct and released its findings to the executive committee of defendant medical staff. Relying on the ad hoc committee’s report, the executive committee referred plaintiff to the Health Professionals Recovery Program (HPRP) for a psychiatric examination. Plaintiff was placed on temporary probation. Plaintiff alleges that he ceased writing his standard orders because, in compromise, defendant hospital gave plaintiff use of the pharmacy consult service to implement plaintiffs special orders. It appears that plaintiffs orders regarding patient medication overburdened the staff of the pharmacy consult service, so the hospital eventually discontinued this arrangement. Thereafter, plaintiff resumed placing his specialized orders in patients’ medical charts. As a consequence, defendants took further action and placed plaintiff on indefinite probation. Plaintiff continues to practice medicine and retains privileges at defendant hospital, but is restricted from using defendant hospital’s pharmacy consult service or insisting on compliance with his special orders. Plaintiff filed a complaint alleging violations of the Persons with Disabilities Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act of 1973,* and 42 USC 1983 and 1985; invasion of privacy; breach of fiduciary and public duties; and breach of contract. The trial court granted summary disposition to defendants, concluding that all of defendants’ actions arose out of the peer review process and therefore defendants were immune from liability under MCL 331.531. The court, as an alternative basis for granting summary disposition, relied on the doctrine of judicial nonintervention, which provides that courts will not review private hospitals’ staffing decisions. The Court of Appeals, in a split decision, partially reversed the trial court’s award of summary disposition in favor of defendants, concluding that peer review immunity did not apply to statutory civil rights claims. The majority concluded that an alleged civil rights violation was not within the scope of peer review and that an alleged civil rights violation was “a malicious act.” Furthermore, the majority held that the nonin tervention doctrine did not prevent plaintiff from pursuing his civil rights claims, nor did the doctrine generally preclude plaintiffs contract and tort claims. The majority held that the doctrine stands for the limited proposition that a private hospital’s staffing decisions are not subject to constitutional due process challenges. The majority concluded that the nonintervention doctrine did not create any greater insulation from judicial scrutiny than that enjoyed by any other private entity. In other words, the majority held that a private hospital’s staffing decisions are subject to the same level of judicial review as would apply to the actions of any other private entity. The Court of Appeals dissent agreed that an unlawful act of discrimination constituted malice, but disagreed that an unlawful discriminatory act was per se outside the scope of a peer review committee. The dissent would have affirmed the trial court’s dismissal of plaintiffs tort and contract counts. The dissent also concluded that the majority improperly limited the scope of the nonintervention doctrine. The dissent opined that the nonintervention doctrine precluded judicial review of contract and contract-related tort claims arising from hospital staffing decisions with regard to all defendants. This Court granted defendants’ application for leave to appeal. STANDARD OF REVIEW The trial court granted defendants summary disposition under MCR 2.116(C)(8). A trial court’s grant of summary disposition is reviewed de novo. A motion for summary disposition brought pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the complaint on the allegations of the pleadings alone. When a challenge to a complaint is made, the motion tests whether the complaint states a claim as a matter of law, and the motion should be granted if no factual development could possibly justify recovery. Questions of statutory interpretation, such as the proper construction of the peer review immunity statute, are reviewed de novo. Our role is to give effect to the intent of the Legislature, as expressed by the language of the statute. We apply clear and unambiguous statutes as written, under the assumption that the Legislature intended the meaning of the words it has used in the statute. In defining statutory words, we must consider the “plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” While words are construed according to their plain and ordinary meaning, words that have acquired a peculiar and appropriate meaning in the law are construed according to that peculiar and appropriate meaning. ANALYSIS In Michigan, the Legislature has commanded hospitals to establish peer review committees to review “professional practices” in order to “redue[e] morbidity and mortality and improv[e] the care provided in the hospital for patients.” That review must “include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital.” In turn, hospitals use peer review evaluations when making staffing decisions. A. THE JUDICIAL NONINTERVENTION DOCTRINE AND THE SCOPE OF JUDICIAL REVIEW OF PEER REVIEW The judicial nonintervention doctrine is a judicially created common-law doctrine providing that courts will not intervene in a private hospital’s staffing decisions. The concerns that gave rise to this doctrine are twofold. The doctrine is premised, in part, on the distinction between public and private hospitals. While public hospitals are state actors impheating adherence to constitutional requirements, such as affording due process to physicians, private hospitals are not similarly constrained because they are not state actors. Therefore, it was posited that a private hospital’s staffing decisions merit less judicial scrutiny. The doctrine is also founded on the belief that courts are ill-equipped to review hospital staffing decisions because courts lack the specialized knowledge and skills required to adjudicate hospital staffing disputes. The judicial nonintervention doctrine, therefore, is a prudential doctrine not grounded in statutoiy or constitutional provisions that courts have invoked to resist adjudicating claims involving hospital staffing decisions and the decision-making process. In Shulman v Washington Hosp Ctr, a seminal case describing the doctrine, the United States District Court for the District of Columbia explained its foundational premises as follows: Judicial tribunals are not equipped to review the action of hospital authorities in selecting or refusing to appoint members of medical staffs, declining to renew appointments previously made, or excluding physicians or surgeons from hospital facilities. The authorities of a hospital necessarily and naturally endeavor to their utmost to serve in the best possible manner the sick and the afflicted who knock at their door. Not all professional men, be they physicians, lawyers, or members of other professions, are of identical ability, competence, or experience, or of equal reliability, character, and standards of ethics. The mere fact that a person is admitted or licensed to practice his profession does not justify any inference beyond the conclusion that he has met the minimum requirements and possesses the minimum qualifications for that purpose. Necessarily hospitals endeavor to secure the most competent and experienced staff for their patients. Without regard to the absence of any legal liability, the hospital in admitting a physician or surgeon to its facilities extends a moral imprimatur to him in the eyes of the public. Moreover not all professional men have a personality that enables them to work in harmony with others, and to inspire confidence in their fellows and in patients. These factors are of importance and here, too, there is room for selection. In matters such as these the courts are not in a position to substitute their judgment for that of professional groups. Relying on Shulman, the Michigan Court of Appeals adopted the doctrine of judicial nonintervention in Hoffman v Garden City Hosp. The plaintiff in Hoffman sued a private hospital for denying him staff privileges, claiming, in part, that the hospital’s decision to deny privileges was “arbitrary, capricious and unrea sonable... ,” The defendant prevailed in the trial court on its motion for summary disposition. On appeal, the plaintiff urged the Court of Appeals to adopt the position that a private hospital holds a fiduciary duty to make its staffing decisions reasonably and for the public good. The plaintiff argued that the defendant hospital’s decision was “so ‘affected with a public interest’ ” that it should be subject to judicial review. The Hoffman panel rejected this argument and, in affirming the trial court, adopted the position articulated in Shulman that a private “hospital’s reasons for denying staff privileges” and “the decisions of the governing bodies of private hospitals are not subject to judicial review.” In subsequent cases, the Court of Appeals relied on, as well as expanded, the judicial nonintervention doctrine set forth in Hoffman. For example, in Sarin v Samaritan Health Ctr, the Court of Appeals affirmed summary disposition of the plaintiff doctor’s breach of contract and tort claims arising out of an alleged breach of the hospital’s bylaws. Sarin held that the doctrine precluded judicial review not only of a private hospital’s decision on staff privileges, but also “ ‘the method by which the hospital personnel reached that decision,’ ” because judicial review of those claims would require courts to “interven[e] in the hospital’s [staffing] decision and interfer[e] with the peer review process.” More recently, in Long v Chelsea Community Hosp, the Court of Appeals refined the scope of the nonintervention doctrine, and opined that the doctrine could not bar judicial review of all legal claims related to staffing decisions. The panel stated that the doctrine is limited to disputes that are contractual in nature. We decline to articulate a broad principle that a private hospital’s staffing decisions may never be judicially reviewed. Indeed, in doing so, we reiterate the proposition from Sarin that, under some circumstances, a court may consider a hospital’s decisions without violating the nonintervention principle. Private hospitals do not have carte blanche to violate the public policy of our state as contained in its laws. Had plaintiff in this case asserted that defendants violated state or federal law, we may have chosen to review his claim. In this case, however, plaintiff did not assert a violation of civil rights or a violation of a state statute.[ ] Long confined the scope of the judicial nonintervention doctrine to disputes arising out of those decisions that are “contractual in nature.” In this case, the Court of Appeals majority largely abandoned the Hoffman rule that a private hospital’s staffing decisions are simply not subject to judicial review. Instead, it concluded that the judicial nonintervention doctrine only stood for the “modest proposition that a private hospital is subject only to the legal obligations of a private entity, not to the greater scrutiny of a public institution.” Fundamental to the majority’s reinterpretation of the doctrine and retreat from earlier case law was the fact that only Long was binding precedent. Therefore, it embraced Long’s suggestion that private hospitals might be subject to statutory civil rights claims. With regard to breach of contract claims, the Feyz majority held that liability may be imposed as long as the breach of contract claim would not subject a private hospital to greater liability than what another private entity would face. While Court of Appeals panels have utilized variants of the doctrine of nonintervention for some years, this Court has never recognized or adopted the doctrine. Defendants urge this Court to adopt the doctrine and hold that the trial court properly dismissed plaintiffs nonstatutory claims because those claims require a review of the hospital’s staffing decisions and the methods employed in reaching those decisions. We decline to do so because this judicially created nonintervention doctrine is inconsistent with the statutory regime governing the peer review process enacted by the Legislature. The statutorily prescribed scope of judicial review over the peer review process is very narrow. The Legislature codified limited judicial review of the peer review process, permitting judicial review only when peer review participants act with malice. Contrary to the outcomes of cases such as Hoffman, Sarin, and Long, which afforded common-law immunity to hospitals, the hospital itself is not a protected review entity under the legislatively enacted peer review immunity statute. The Legislature could have permitted unqualified peer review immunity or extended it beyond the participants in the peer review process, but did not do so. Our courts must respect this policy choice. The nonintervention doctrine, which, in some formulations, precludes all judicial review of contract and tort claims that might have some relationship to peer review, is inconsistent with the legislative mandate that covers protection of the peer review communicative process only. The doctrine permits courts to supplant the policy choice made by the Legislature. Because “ ‘ “[c]ourts cannot substitute their opinions for that of the legislative body on questions of policy,” ’ ” we decline to recognize the judicial nonintervention doctrine. Additionally, we are not persuaded by the argument that courts are incompetent to review hospital staffing decisions as a basis for adopting the judicial nonintervention doctrine. This claim overlooks the reality that courts routinely review complex claims of all kinds. Forgoing review of valid legal claims, simply because those claims arise from hospital staffing decisions, amounts to a grant of unfettered discretion to private hospitals to disregard the legal rights of those who are the subject of a staffing decision, even when such decisions are precluded by statute. This is not to say that hospital staffing decisions, which involve specialized medical and business knowledge and considerations, are not entitled to some measure of deference. However, when those staffing decisions violate the legal rights of others, the judiciary must exercise its obligation to adjudicate legal disputes, except to the extent that the citizens of this state, through their elected representatives, have made a policy choice to shield such decisions from liability. B. PEER REVIEW IMMUNITY Peer review is “ ‘ “essential to the continued improvement in the care and treatment of patients. Candid and conscientious evaluation of clinical practices is a sine qua non of adequate hospital care.” ’ ” In order to promote “the willingness of hospital staff to provide their candid assessment” in peer review proceedings, the Legislature has enacted two primary measures to protect peer review activities from intrusive public involvement and from litigation. First, the Legislature has provided that the records, data, and knowledge collected for or by peer review entities are confidential and not discoverable. Furthermore, and relevant to this case, the Legislature has granted immunity to persons, organizations, and entities that provide information to peer review groups or perform protected peer review communicative functions. The peer review immunity statute protects a person, organization, or entity from civil and criminal liability when carrying out three types of protected peer review tasks. First, immunity protects those that provide information or data to a review entity pursuant to MCL 331.531(1). Second, it protects specific “review entities,” such as a duly appointed peer review committee of a hospital, for those acts or communications within its scope as a review entity. Finally, subject to MCL 331.532 and MCL 331.533, immunity applies to those who release or publish a record of peer review proceedings, or the reports, findings, or conclusions of a review entity. However, peer review immunity is not absolute. A person, organization, or entity that has acted with malice when engaging in a peer review function is not protected from liability. Because the Legislature did not define “malice,” we must determine what constitutes malice for purposes of peer review immunity. We are guided by the Legislature’s directive that words that have acquired a peculiar and appropriate meaning in the law shall be construed according to that peculiar and appropriate meaning. “Malice” is clearly a word that has acquired a peculiar meaning in the law. Indeed, reference to any legal dictionary confirms that “malice” has acquired several peculiar meanings, depending on the context in which it is used. Our task in this case is to discern which peculiar meaning of “malice” is the most appropriate for purposes of the peer review immunity statute. The proper definition of “malice” for purposes of peer review immunity is an issue of first impression in this Court. Over the years, Court of Appeals panels have employed several divergent definitions. For instance, in Veldhuis v Allan, supra, the Court of Appeals adopted the defamation definition of “actual malice.” The panel in Veldhuis v Allan held that the statutory immunity accorded to peer review activities does not apply “if the person supplying information or data does so with knowledge of its falsity or with reckless disregard of its truth or falsity. Similarly, a review entity is not immune from liability if it acts with knowledge of the falsity, or with reckless disregard of the truth or falsity, of information or data which it communicates or upon which it acts.” In this case, the Court of Appeals majority and dissent each adopted a different definition of “malice.” The majority quoted Black’s Law Dictionary (5th ed) for the proposition that “ ‘[mjalice in law is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen.’ ” Using this definition, the Court of Appeals concluded that because civil rights acts establish citizens’ legal rights, acting in disregard of those rights represents a malicious act outside the scope of immunity granted under MCL 331.531. Defendants contend that the defamation definition of “malice” utilized in Veldhuis v Allan is the appropriate standard for defining malice under MCL 331.531. We agree. In defining malice for purposes of MCL 331.531(4), it is our duty “to discern and give effect to the intent of the Legislature.” To give such effect we must consider the “plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” Peer review is a communicative process, designed to foster an environment where participating physicians can freely exchange and evaluate information without fear of liability if the hospital ultimately relies on peer review evaluations and adversely affects the reviewed physician’s hospital privileges. It is obvious that peer review immunity is designed to promote free communications about patient care practices, as both the furnishing of information to the peer review entity and the proper publication of peer review materials are acts which are granted immunity. All the protected activities relate to the exchange and evaluation of such information. Moreover, the peer review statutory regime protects peer review from intrusive general public scrutiny. All the peer review communications are protected from discovery and use in any form of legal proceeding. The proper definition of “malice” for purposes of the exception to peer review immunity must be gleaned from this communicative context. The defamation definition of “malice” first used by the panel in Veldhuis v Allan most clearly comports with the statutory process established by the Legislature, because it is the one definition that specifically concerns and promotes honest communication. Moreover, the purpose of the malice exception is to keep physicians focused on performing honest and candid peer review, while protecting peer review participants from liability for every negative outcome that may be a by-product of such communication. The defamation definition of “malice” is uniquely addressed to communications and most effectively furthers this primary function of peer review. Under the “malice” definition used by the Feyz Court of Appeals majority, every potential invasion of a physician’s legal rights committed during peer review, regardless of the triviality of the act or the absence of knowledge of the inaccuracy of the information relied upon, would abrogate immunity. Such a definition of “malice” would undermine the peer review process by transforming it into a legalistic, rights-driven process rather than its proper statutory mission — honest professional medical evaluation of information about hospital patient practices. This result is inconsistent with the statutory goals of the peer review process and the stringent protections afforded to communicators and communications made in peer review. In providing the extensive immunity for peer review, the Legislature was obviously aware that such protections might insulate from review and sanction the participants’ liability for some adverse outcomes for physicians ultimately found by a credentialing hospital to lack the requisite professional skills or standards. Such adverse outcomes equally obviously were not, in and of themselves, deemed by the Legislature to be cause for liability for those participating in the peer review process. However, making unfavorable evaluations, determinations, and recommendations based on negative information the peer review entity knows to be false would satisfy the malice standard we adopt. We conclude, based on the language and structure of this statute, that utilizing and acting on information known to be false is the type of activity that the Legislature intended to prevent by including the malice exception to immunity. The defa mation definition of “malice” promotes the goals of peer review because peer review participants are not protected if they are not performing evaluations with a focus on improving patient care, but rather on the basis of false extraneous factors unrelated to patient care. C. HOSPITAL STAFFING DECISIONS ARE NOT IMMUNE FROM LIABILITY Our lower courts have made broad use of the now-repudiated nonintervention doctrine that provided, in some formulations, blanket immunity for any staffing decision associated with peer review. We believe that the widespread use of this doctrine has caused some confusion concerning the relationship between the immunity granted to participants in the peer review process and the nature of liability imposed on the actual decision maker in hospital staffing questions, namely, the hospital itself. As stated, decisions such as Hoffman, Sarin, and Long applied the common-law immunity provided by the nonintervention doctrine to hospitals without regard to the fact that the statute itself grants immunity only to enumerated peer review participants and their communications. Hospitals are not similarly covered by the peer review statute. It appears that judicial reliance on the sweeping nonintervention doctrine obviated the necessity of examining whether a hospital, as decision maker, was entitled to the immunity provided by the statute. In this case, defendants clearly assume and argue that an expansive construction of the peer review immunity statute will insulate the hospital defendant from liability. Contrarily, the Court of Appeals majority and dissent sought to construe the peer review immunity statute in a way to avoid insulating the hospital from liability for civil rights claims. None of these positions comports with a reasonable construction of the statute before us, and both misapprehend the scope of its protection. It is for this reason that both the majority and dissenting opinions of the Court of Appeals panel in this case strain to impose on the statutory term “malice” a construction that has little to do with the communicative function of the peer review process. Because of the confusion on this point illustrated by the published peer review Court of Appeals cases, we take this opportunity to clarify that the peer review immunity statute extends only to the communications made, and the participants who make them, in the peer review process, not to the hospital that makes the ultimate decision on staffing credential questions. Our conclusion is rooted in the language of the immunity statute itself. Nothing in the peer review immunity statute suggests that it applies to any person or entity except those involved in the communicative concern of gathering data and evaluating hospital medical practices, as well as those who publish peer review information for the listed proper statutory purposes. It does not apply to the hospital decision maker that might rely upon the work product of a peer review committee. Moreover, MCL 333.21513(a) and (c) designate that the hospital is the statutory decision maker concerning staffing privileges. In other words, the peer review process may assemble and assess data about a physician’s competence, and it may even make a recom mendation to the hospital leadership bearing on a staffing issue, but it is the hospital that remains ultimately and legally responsible for deciding issues relating to staffing privileges. Thus, the hospital does not fit within the protections afforded by the peer review immunity statute when it makes the ultimate staffing decision. Consequently, if the defendant hospital here is covered by one or more of the several state and federal civil rights acts plaintiff has sued under, and if staffing privileges are an activity protected from discrimination by such state and federal acts, then the hospital is required to defend its decision. What plaintiff may not do in suing the hospital defendant is invade the protections afforded to participants in the peer review process without establishing malice as we have defined it in this opinion. CONCLUSION We repudiate the doctrine of judicial nonintervention because it is inconsistent with the statutory peer review process established in MCL 331.531. Furthermore, we hold that malice exists when a person supplying information or data to a peer review entity does so with knowledge of its falsity or with reckless disregard of its truth or falsity. Similarly, a peer review entity is not immune from liability if it acts with knowledge of the falsity, or with reckless disregard of the truth or falsity, of information or data that it communicates or upon which it acts. Although this definition originated in the context of defamation, this definition is uniquely appropriate to Michigan’s peer review scheme, as peer review immunity is based on the communication of informa tion about professional activities and standards. Moreover, this definition furthers the purpose of peer review immunity in that it allows those who engage in the peer review process to candidly and honestly evaluate a physician’s competence without fear of exposure to liability. Accordingly, the judgment of the Court of Appeals is vacated, and we remand this case to the Monroe Circuit Court for further proceedings consistent with this opinion. Taylor, C.J., and Corrigan and Markman, JJ., concurred with Young, J. 164 Mich App 131; 416 NW2d 347 (1987). Id. at 136-137 (citation omitted). Because this case was dismissed pursuant to MCR 2.116(C)(8), all material facts are taken from plaintiffs complaint. According to plaintiffs complaint, the individual defendants hold various administrative positions at defendant hospital. Defendant Medi cal Staff of Mercy Memorial Hospital is “the organization of health care providers who provide health care to patients” at defendant Mercy Memorial Hospital. According to plaintiffs complaint, plaintiffs standing orders required nurses to do the following: A. Have the family bring in home medications. B. Ask the patient (if alert) if the containers belong to the medications. If not, send the container(s) to the pharmacy for identification. C. Ask the patient to look at his/her medications inside the container and tell how he/she has been taking them at home. D. List the dose and frequency of medications taken on the nursing assessment form as the patient is actually taking them at home. Plaintiff admits that he refused to comply with hospital policy requiring physicians to sign transcriptions of their verbal orders. Because this case was decided on motion solely on the basis of plaintiffs pleadings, it is not clear whether the ad hoc investigatory committee and the executive committee were duly authorized “peer review” entities. It is not necessary to the resolution of this appeal that we determine their status. We therefore express no opinion on this issue. See MCL 333.16223. MCL 37.1101 et seq. 42 USC 12101 et seq. 29 USC 794. 264 Mich App 699; 692 NW2d 416 (2005). The Court of Appeals affirmed the dismissal of plaintiffs breach of fiduciary duty claim against all defendants on the basis of the nonintervention doctrine, because such a claim went to the heart of the majority’s interpretation of the doctrine — that private hospitals are not subject to greater judicial scrutiny than any other private entity. Furthermore, the Court of Appeals affirmed summary disposition of plaintiffs nonstatutory claims against the members of the ad hoc committee, to the extent those claims were based on the actions of the ad hoc committee while acting in its role as a peer review committee. Plaintiff did not appeal these adverse holdings, and they are not before us. Id. at 704. The Court of Appeals majority used the following definition of malice: “ ‘Malice in law is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen.’ ” Id. at 704-705, quoting Black’s Law Dictionary (5th ed). The dissent relied in part on the following legal definition of “malice”: “ ‘The intent, without justification or excuse, to commit a wrongful act.’ ” Feyz, supra at 728 (Murray, PJ., concurring in part and dissenting in part), quoting Black’s Law Dictionary (7th ed). The dissent agreed with the majority that MCL 331.531 would not bar valid discrimination claims. However, somewhat inconsistently, the dissent criticized the majority’s abandonment of the defamation definition of malice, adopted in Veldhuis, supra, and stated that the majority offered no justification or explanation for the abandonment. Although unstated, given the dissent’s preferred definition of malice, it appears that its rejection of a per se application of discriminatory claims as an exception to peer review immunity derives from the fact that not all discriminatory claims require proof of intent. See, e.g., Raytheon Co v Hernandez, 540 US 44, 52-53; 124 S Ct 513; 157 L Ed 2d 357 (2003). 474 Mich 957 (2005). Wickens v Oakwood Healthcare Sys, 465 Mich 53, 59; 631 NW2d 686 (2001). Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Ostroth v Warren Regency, GP, LLC, 474 Mich 36, 40; 709 NW2d 589 (2006). Grimes v Dep’t of Transportation, 475 Mich 72; 715 NW2d 275 (2006). Casco Twp v Secretary of State, 472 Mich 566, 571; 701 NW2d 102 (2005). 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 (1999). MCL 8.3a. MCL 333.21513 provides, in pertinent part: The owner, operator, and governing body of a hospital licensed under this article: (d) Shall assure that physicians and dentists admitted to practice in the hospital are organized into a medical staff to enable an effective review of the professional practices in the hospital for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients. The review shall include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital. Id. See Attorney General v Bruce, 422 Mich 157; 369 NW2d 826 (1985). “Hospitals are required to establish peer review committees whose purposes are to reduce morbidity and mortality and to ensure quality of care. Included in their duties is the obligation to review the professional practices of licensees, granting staff privileges consistent with each licensee’s qualifications.” Id. at 169 (internal citations omitted). Derderian v Genesys Health Care Sys, 263 Mich App 364, 376-377; 689 NW2d 145 (2004), lv den 474 Mich 955 (2005). See ¿d. The judicial nonintervention doctrine does not deprive a court of subject-matter jurisdiction as some Court of Appeals panels have erroneously concluded. Id. at 377 n 5, citing Veldhuis v Central Michigan Community Hosp, 142 Mich App 243; 369 NW2d 478 (1985), and Bhogaonker v Metro Hosp, 164 Mich App 563; 417 NW2d 501 (1987). Rather, the doctrine is one of self-restraint where courts decline to exercise jurisdiction. 222 F Supp 59, 64 (D DC, 1963). 115 Mich App 773; 321 NW2d 810 (1982). Id. at 776. See Greisman v Newcomb Hosp, 40 NJ 389; 192 A2d 817 (1963). Hoffman, supra at 777. Id. at 778, 779, citing Shulman, supra. See Regualos v Community Hosp, 140 Mich App 455, 460-461; 364 NW2d 723 (1985); Veldhuis Central Michigan Community Hosp, supra; Dutka v Sinai Hosp of Detroit, 143 Mich App 170; 371 NW2d 901 (1985); Bhogaonker, supra. 176 Mich App 790, 793-794; 440 NW2d 80 (1989). Id. at 794, quoting Veldhuis v Central Michigan Community Hosp, supra at 247. Sarin, supra at 795. 219 Mich App 578; 557 NW2d 157 (1997). The issue in Long was whether MCL 331.531 created a private cause of action for malice. The Court of Appeals concluded that the statute created no such private cause of action. The Court also dismissed the plaintiffs breach of contract claim on the basis of the judicial nonintervention doctrine. Long, supra at 586-587 (citation omitted). Id. at 586. Feyz, supra at 723. Id.; see MCR 7.215(J)(1). MCL 331.531. However, as the Court of Appeals stated in Long, supra, MCL 331.531 does not create a private cause of action for malice. Malice is an exception to peer review immunity. Once a defendant has stated sufficient facts constituting peer review immunity, MCR 2.111(F)(3), a plaintiff has to put forward sufficient evidence of malice to invoke the exception to immunity. This burden is separate from the plaintiffs burden to state a viable legal claim. MCL 331.531(2) specifically delineates which groups qualify as “review entities” entitled to peer review immunity. While a duly appointed peer review committee of a hospital is a designated review entity under MCL 331.531(2)(a)(iii), the hospital is not. Therefore, the hospital cannot take advantage of the immunity granted under MCL 331.531(3)(b), which grants immunity only to review entities for acts or communications within their scope. See, e.g., Sarin, supra at 795. People v McIntire, 461 Mich 147, 153; 599 NW2d 102 (1999), quoting the dissenting opinion of Young, EJ., in the Court of Appeals in that case quoting Cady v Detroit, 289 Mich 499, 509; 286 NW 805 (1939). See also Beaudrie, supra at 140, where this Court refused to expand the judicially created public duty doctrine because such an expansion would have undermined the public policy choice of the Legislature, as expressed in the governmental tort liability act, which allows public employees to be subject to tort liability in limited circumstances. We note that the Legislature provided for the qualified immunity found in MCL 331.531 in 1975, seven years before the Court of Appeals adopted the judicial nonintervention doctrine. Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 42; 594 NW2d 455 (1999), quoting Attorney General, supra at 169, quoting Bredice v Doctors Hosp, Inc, 50 FRD 249, 250 (D DC, 1970), aff'd without opinion 156 US App DC 199; 479 F2d 920 (1973). Dorris, supra, at 42; Attorney General, supra at 169. MCL 333.21515, MCL 333.20175(8), and MCL 331.533. Peer review records have thus been fully protected from disclosure even to the Attorney General when conducting a criminal investigation. Attorney General, supra at 168-170; In re Investigation of Lieberman, 250 Mich App 381; 646 NW2d 199 (2002). Moreover, these nondisclosure protections apply regardless of the nature of the claim asserted by the party seeking the records. Manzo v Petrella & Petrella & Assoc, PC, 261 Mich App 705, 715; 683 NW2d 699 (2004). MCL 331.531 provides in pertinent part: (1) A person, organization, or entity may provide to a review entity information or data relating to the physical or psychological condition of a person, the necessity, appropriateness, or quality of health care rendered to a person, or the qualifications, competence, or performance of a health care provider. (2) As used in this section, “review entity” means 1 of the following: (a) A duly appointed peer review committee of 1 of the following: (iii) A health facility or agency licensed under article 17 of the public health code, 1978 PA 368, MCL 333.20101 to 333.22260. (3) A person, organization, or entity is not civilly or criminally liable: (a) For providing information or data pursuant to subsection (1). (b) For an act or communication within its scope as a review entity. (c) For releasing or publishing a record of the proceedings, or of the reports, findings, or conclusions of a review entity, subject to sections 2 and 3. (4) The immunity from liability provided under subsection (3) does not apply to a person, organization, or entity that acts with malice. MCL 331.531(2)(a)(mJ. As noted earlier, hospitals themselves are not listed protected review entities. MCL 331.532 provides that the release or publication of peer review records, reports, findings, and conclusions shall be only for the following purposes: (1) advancing health care research or education, (2) maintaining the standards of health care professions, (3) protecting the financial integrity of any govemmentally funded program, (4) providing evidence relating to the ethics or discipline of a health care provider, entity, or practitioner, (5) reviewing the qualifications, competence, and performance of a health care professional with respect to the selection and appointment of the professional to a health facility’s medical staff, and (6) complying with § 20175 of the Public Health Code, MCL 333.20175. MCL 331.533 provides that “the record of a proceeding and the reports, findings, and conclusions of a review entity and data collected by or for a review entity ... are confidential, are not public records, and are not discoverable and shall not be used as evidence in a civil action or administrative proceeding." (Emphasis added.) MCL 331.531(4). The immunity provided under MCL 331.531 is separate and distinct from the immunity provided by MCL 333.16244 for a person who acts in good faith in making a report to the HPRE MCL 333.16244 establishes a presumption that a person who makes such a report acted in good faith. This reporting immunity is not predicated on participation in peer review. MCL 8.3a. See New York Times Co v Sullivan, 376 US 254, 279-280; 84 S Ct 710; 11 L Ed 2d 686 (1964); J & J Constr Co v Bricklayers & Allied Craftsmen, 468 Mich 722, 731; 664 NW2d 728 (2003); Lins v Evening News Ass’n, 129 Mich App 419; 342 NW2d 573 (1983). It bears noting that the peer review immunity statute was amended to include the malice exception to immunity after the seminal New York Times v Sullivan case was decided. It is fair to say that Sullivan made a seismic change in the law concerning defamatory communications. Veldhuis v Allan, supra at 136-137 (citation omitted). Feyz, supra at 704-705. Justice CAVANAGH concludes, largely by referencing a legal dictionary, that the Legislature intended a different definition of “malice” than we adopt today. Indeed, as the dissent correctly contends, reference to dictionaries may be “helpful” in ascertaining legislative intent. Post at 692, citing Ford Motor Co v Woodhaven, 475 Mich 425; 716 NW2d 247 (2006). However, because a word can have many different meanings depending on the context in which it is used, and because dictionaries frequently contain multiple definitions of a given word, in light of this fact, it is important to determine the most pertinent definition of a word in light of its context. See, e.g., Horace v City of Pontiac, 456 Mich 744, 756; 575 NW2d 762 (1998). That the definition of “malice” we adopt today has been termed “actual malice” is not dispositive. We readily acknowledge that the word “malice” has a number of definitions; “actual malice” is simply one of the many terms that fall under the general umbrella of “malice.” See Black’s Law Dictionary (8th ed). However, what is critical to our analysis is that “[w]ords are given meaning by context or setting.” Consumers Power Co v Pub Serv Comm, 460 Mich 148, 163 n 10; 596 NW2d 126 (1999), citing Tyler v Livonia Pub Schools, 459 Mich 382, 391; 590 NW2d 560 (1999). Peer review is a communicative process seeking to improve patient care through internal self-regulation. Given this context, we believe that the defamation definition of “malice” most appropriately furthers the Legislature’s intent in providing immunity to peer review participants. It is unclear to us why Justice Cavanagh selects — from among all the available definitions of “malice” — the definition he has chosen. Sun Valley Foods, supra at 236. Id. at 237, quoting Bailey v United States, supra at 145. We note that MCL 331.531(3)(b) provides immunity to a review entity for all non-malicious acts or communications within its scope as a review entity. Indeed, it is difficult to conceive of an “act” that a properly functioning hospital peer review entity could perform that is not communicative in nature. The gathering and evaluating of information, as well as making recommendations based on that evaluation, are indeed “acts.” But these “acts” certainly also have a fundamental communicative aspect. Indeed, these acts are so inherently communicative that were a peer review entity to perform them in such a manner as to interfere with the purpose of keeping physicians focused on performing honest and candid peer review — to distort the peer review process without regard to the truth or falsity of the information it gathers or uses — such actions would also necessarily be communicative in nature and subject to the malice standard we adopt today. Moreover, if a hospital peer review entity were performing non-communicative, non-evaluative “acts” — namely acts that do not advance the goal of the statute to improve delivery of hospital care — such “acts” are arguably not afforded immunity because they presumably would not be within the scope of the hospital peer review entity’s function. It is noteworthy that the Legislature chose the unusual term “malice” rather than a more common term such as “intent” as an exception to the immunity granted. As stated, we believe that this is because the focus of the peer review process narrowly concerns communications and the defamation definition of “malice” is inexorably tied to communications. Equally significant, this definition became widely known following the publication of New York Times v Sullivan, supra. This is especially true because any disciplinary action taken against the physician on the basis of peer review findings would have to be disclosed upon request to any other hospital from which the physician is seeking staff privileges, credentials, or employment. See MCL 331.531(6) and MCL 333.20175(6). It is also important to note that, until the decision in this case, none of the published peer review immunity statute cases involved a civil rights claim or an existing statutory claim. See, e.g., Long, supra; Veldhuis v Allan, supra; Regualos, supra. Indeed, as noted in footnote 40, at least one case involved an effort to create an independent cause of action for malice based on the peer review immunity statute itself. As stated earlier, this case was decided on motion. The merits of plaintiffs statutory claims have not been decided. We express no opinion on the validity of any of plaintiffs claims.
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YOUNG, J. Defendant and a codefendant, Samuel Pannell, committed an aggravated assault, and Pannell shot and killed the victim, Bernard Thomas. After a bench trial, the trial court convicted defendant of second-degree murder under an aiding and abetting theory. The Court of Appeals reversed the trial court’s judgment, because it concluded that there was insufficient evidence that defendant shared or was aware of Pannell’s intent to kill. We hold that under Michigan law, a defendant who intends to aid, abet, counsel, or procure the commission of a crime, is liable for that crime as well as the natural and probable consequences of that crime. In this case, defendant committed and aided the commission of an aggravated assault. One of the natural and probable consequences of such a crime is death. Therefore, the trial court properly convicted defendant of second-degree murder. We reverse the judgment of the Court of Appeals and reinstate defendant’s conviction of second-degree murder. FACTS AND PROCEDURAL HISTORY According to the evidence adduced at trial, defendant and Pannell went to the house of the victim, Bernard Thomas, with the stated intent to “f*** him up.” Under Pannell’s direction, defendant drove himself and Pannell to the victim’s house. Pannell knocked on the victim’s door. When the victim opened the door, defendant struck him. As the victim fell to the ground, defendant struck the victim again. Pannell began to kick the victim. Defendant told Pannell that “that was enough,” and walked back to the car. When defendant reached his car, he heard a single gunshot. Following a bench trial, the trial court found defendant guilty of second-degree murder “on the prong of great bodily harm only.” Specifically, the court found that defendant drove Pannell to the victim’s house with the intent to physically attack the victim. The court also found that once at the victim’s home, defendant initiated the attack on the victim, and that defendant’s attack enabled Pannell to “get the upper-hand” on the victim. The court sentenced defendant to a term of 71 months to 15 years. The Court of Appeals reversed defendant’s murder conviction, holding that there was insufficient evidence to support defendant’s second-degree murder conviction. The Court held that the trial court improperly convicted defendant of second-degree murder because there was no evidence establishing that defendant was aware of or shared Pannell’s intent to kill the victim. This Court granted the prosecution’s application for leave to appeal, directing the parties to address the elements of accomplice liability and the mens rea required to support a conviction of aiding and abetting second-degree murder. STANDARD OF REVIEW The requirements of the aiding and abetting statute are a question of law that this Court reviews de novo. “[W]ords and phrases that have acquired a unique meaning at common law are interpreted as having the same meaning when used in statutes dealing with the same subject.” In evaluating defendant’s claim regarding the sufficiency of the evidence, this Court reviews the evidence in a light most favorable to the prosecutor to determine whether any trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. Findings of fact by the trial court may not be set aside unless they are clearly erroneous. ANALYSIS This case involves liability under our aiding and abetting statute, MCL 767.39, which provides: 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 commis sion may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense. Unlike conspiracy and felony murder, which also allow the state to punish a person for the acts of another, aiding and abetting is not a separate substantive offense. Rather, “being an aider and abettor is simply a theory of prosecution” that permits the imposition of vicarious liability for accomplices. This Court recently described the three elements necessary for a conviction under an aiding and abetting theory: “(1) the crime charged was committed by the defendant or some other person; (2) the defendant performed acts or gave encouragement that assisted the commission of the crime; and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time that [the defendant] gave aid and encouragement. ”[ ] The primary dispute in this case involves the third element. Under the Court of Appeals analysis, the third element would require the prosecutor to prove beyond a reasonable doubt that a defendant intended to commit the identical offense, here homicide, as the accomplice or, alternatively, that a defendant knew that the accomplice intended to commit the homicide. We reaffirm that evidence of defendant’s specific intent to commit a crime or knowledge of the accomplice’s intent constitutes sufficient mens rea to convict under our aiding and abetting statute. However, as will be discussed later in this opinion, we disagree that evidence of a shared specific intent to commit the crime of an accomplice is the exclusive way to establish liability under our aiding and abetting statute. AIDING AND ABETTING STATUTE The theory that a defendant could be liable for another’s criminal actions as an “aider and abettor” goes back to the common law. At common law, there were four categories of offenders to a felony: (1) principal in the first degree-he actually engaged in the felonious conduct; (2) principal in the second degree-he was present when the felony was committed and aid and abetted its commission; (3) accessory before the fact-he was not present when the felony was committed but aided and abetted prior to its commission; (4) accessory after the fact-he was not present when the felony was committed but rendered aid thereafter in order to protect the felon or to facilitate his escape.[ ] Principals in the second degree had to intend to commit the crime charged or else be aware of the intent of the principal in the first degree to commit that crime. But accessories before the fact were “guilty of all incidental consequences which might reasonably be expected to result from the intended wrong.” Thus, at common law, one could be guilty of the natural and probable consequences of the intended crime or the intended crime itself, depending on whether the actor was a principal in the second degree or an “accessory before the fact.” Michigan’s aiding and abetting statute has been in force and substantively unchanged since the mid-1800s. The 1855 statute, 1855 PA 77, § 19, which is nearly identical to the current statute, stated: The distinction between an accessory before the fact, and a principal, and between principals in the first and second degree in cases of felony, is abrogated; and all persons concerned in the commission of a felony whether they directly commit the act constituting the offence, or aid and ahet in its commission, though not present, may hereafter he indicted, tried and punished, as principéis, as in the case of a misdemeanor![ ] When a statute employs general common-law terms, courts will interpret the statute by looking to common-law definitions, absent clear legislative intent to change the common law. As this Court has previously indicated, the aiding and abetting statute was a legislative abolition of the common-law distinctions between principals and accessories. Beyond that, there has been little case law from this Court interpreting the language of this statute. However, we note that there is no language in the statute that demonstrates a legislative intent to abrogate the common-law theory that a defendant can be held criminally liable as an accomplice if: (1) the defendant intends or is aware that the principal is going to commit a specific criminal act; or (2) the criminal act committed by the principal is an “incidental consequenceG which might reasonably be expected to result from the intended wrong.” Accordingly, we hold that when the Legislature abolished the distinction between principals and accessories, it intended for all offenders to be convicted of the intended offense, in this case aggravated assault, as well as the natural and probable consequences of that offense, in this case death. The case law that has developed since the Legislature codified these common-law principles provides examples of accomplice liability under both theories. NATURAL AND PROBABLE CONSEQUENCES Under the natural and probable consequences theory, “[t]here can be no criminal responsibility for any thing not fairly within the common enterprise, and which might be expected to happen if the occasion should arise for any one to do it.” In Knapp, the defendant and several other men engaged in sexual intercourse with the victim. After the defendant left, one of the men threw the woman from a second-story window. A jury convicted the defendant of manslaughter. This Court reasoned that because there was no evidence that the defendant threw the victim out the window, the jury must have held him accountable for the actions of the other men. The Knapp Court reversed the defendant’s conviction for manslaughter because there was no proof that the woman’s death was a part of the “common enterprise” of prostitution because one would not expect it “to happen if the occasion should arise to do it.” Therefore, the defendant could not be held to be an accomplice to the manslaughter. Similarly, in People v Chapman, this Court held that a defendant was “ ‘responsible criminally for what of wrong flows directly from his corrupt intentions . . . .’ ” Chapman involved a defendant who paid another man $25 to commit adultery with the defendant’s wife so the defendant could divorce her. The defendant watched through a hole in the wall as the other man raped his wife. This Court held that the jury properly convicted the defendant of rape under an accomplice theory of liability because that crime directly flowed from the original corrupt intention to aid adultery. In view of the framework established by these early cases, the propriety of the trial court’s verdict is clear. The victim’s death is clearly within the common enterprise the defendant aided because a homicide “might be expected to happen if the occasion should arise” within the common enterprise of committing an aggravated assault. The evidence establishes that the victim threatened his children in Pannell’s presence, enraging Pannell. When defendant woke up at 10:00 that evening, Pannell was still “ranting and raving” in the house. Despite knowing that Pannell was in an agitated state, defendant agreed to drive to the victim’s house with the understanding that he and Pannell would “f*** him up.” When the pair arrived at the victim’s home, defendant initiated the assault by hitting the victim once in the face and once in the neck with the back of his hand. After the victim fell to the ground, Pannell punched him twice and began kicking him. In our judgment, a natural and probable consequence of a plan to assault someone is that one of the actors may well escalate the assault into a murder. Just as the planned seduction of the defendant’s wife in Chapman escalated into a rape, Pannell’s anger toward the victim esca lated during the assault into a murderous rage. Defendant argues that he should not be held liable for the murder because he left the scene of the assault after telling Pannell, “That’s enough.” We disagree. Defendant was aware that Pannell was angry with the victim even before the assault. Defendant escalated the situation by driving Pannell to the victim’s house, agreeing to join Pannell in assaulting the victim, and initiating the attack. He did nothing to protect Thomas and he did nothing to defuse the situation in which Thomas was ultimately killed by Pannell. A “natural and probable consequence” of leaving the enraged Pannell alone with the victim is that Pannell would ultimately murder the victim. That defendant serendipitously left the scene of the crime moments before Thomas’s murder does not under these circumstances exonerate him from responsibility for the crime. The fact that Pannell shot the victim, rather than beat him to death, does not alter this conclusion. It cannot be that a defendant can initiate an assault, leave an already infuriated principal alone with the victim, and then escape liability for the murder of that victim simply because the principal shot the victim to death, instead of kicking the victim to death. Like the defendant in Chapman, whose accomplice used rape, as opposed to seduction, to accomplish their common criminal purpose, the defendant is criminally liable as long as the crime is within the natural and probable consequences of the intended assaultive crime. INTENDED OFFENSES The Court of Appeals panel in this case focused on cases that reflect the intended offenses theory, such as People v Kelly to hold that an aider or abettor must have the identical criminal intent as the principal. Kelly involved a murder that occurred during the course of an armed robbery. The jury convicted the defendant as either a principal or an aider and abettor of the felony murder. The Kelly Court affirmed his conviction. In analyzing the aiding and abetting charge, this Court cited Meister v People for the proposition that “[t]he requisite intent is that necessary to be convicted of the crime as a principal.” Under Kelly, a defendant is liable for the offense the defendant intended to commit or intended to aid and abet. However, the Court of Appeals panel in this case went further than Kelly, and required the accomplice to have the identical intent as the principal. This narrow construction is not compelled by Kelly. Kelly addressed aiding and abetting felony murder. Under People v Aaron, to sustain a felony murder conviction, the prosecution must prove that each defendant had the necessary malice to be convicted of murder. Aaron makes clear that one who aids and abets a felony murder must have the requisite malice to be convicted of felony murder, but need not have the same malice as the principal. This principle extends to other crimes: sharing the same intent as the principal allows for accomplice liability. However, sharing the identical intent is not a prerequisite to the imposition of accomplice liability under the common-law principles discussed earlier. The Court of Appeals misread Kelly. In accordance with the common-law principles incorporated in the statute, Kelly simply stands for the proposition that, at a minimum, the aider and abettor is liable for the crime he or she had the intent to commit. Even under the intended offense theory, the defendant’s conviction must stand. The intent necessary for second-degree murder is the intent to kill, the intent to inflict great bodily harm, or the willful and wanton disregard for whether death will result. In this case, the judge specifically found that defendant intended to inflict great bodily harm, which is sufficient to convict him of second-degree murder. The two approaches outlined above are not in conflict. Instead, they merely represent two different tests for liability under an aiding and abetting theory. Under these two tests, a defendant is liable for the crime the defendant intends to aid or abet as well as the natural and probable consequences of that crime. In this case, the trial court found that defendant intended to inflict great bodily harm. That intent is sufficient for a conviction of aggravated assault or second-degree murder. Alternatively, defendant is liable for the homicide because death is one of the natural and probable consequences of aggravated assault, the crime defendant committed and aided. Either analysis is sufficient to support defendant’s conviction. CONCLUSION We hold that a defendant must possess the criminal intent to aid, abet, procure, or counsel the commission of an offense. A defendant is criminally liable for the offenses the defendant specifically intends to aid or abet, or has knowledge of, as well as those crimes that are the natural and probable consequences of the offense he intends to aid or abet. Therefore, the prosecutor must prove beyond a reasonable doubt that the defendant aided or abetted the commission of an offense and that the defendant intended to aid the charged offense, knew the principal intended to commit the charged offense, or, alternatively, that the charged offense was a natural and probable consequence of the commission of the intended offense. Under either prong of the aiding and abetting analysis, defendant was properly convicted. Because the Court of Appeals erred in reversing defendant’s conviction of second-degree murder, we reverse the judgment of the Court of Appeals and reinstate defendant’s conviction. Taylor, C.J., and Weaver, Corrigan, and Markman, JJ., concurred with YOUNG, J. The parties stipulated that the victim died from a gunshot wound. Defendant stated that he did not shoot the victim and that only he, Pannell, and the victim were at the victim’s house. A jury convicted Pannell of first-degree murder. Unpublished opinion per curiam of the Court of Appeals, issued April 29, 2004 (Docket No. 237036). 472 Mich 898 (2005). MCL 767.39. People v Schaefer, 473 Mich 418, 427; 703 NW2d 774 (2005). Pulver v Dundee Cement Co, 445 Mich 68, 75; 515 NW2d 728 (1994). People v Hardiman, 466 Mich 417, 421; 646 NW2d 158 (2002). MCR 2.613(C). MCL 750.157a. MCL 750.316(l)(b). People v Perry, 460 Mich 55, 63 n 20; 594 NW2d 477 (1999). People v Moore, 470 Mich 56, 67-68; 679 NW2d 41 (2004), quoting People v Cannes, 460 Mich 750, 768; 597 NW2d 130 (1999) (change in Moore). Wharton’s Criminal Law (15th ed), p 181. Perkins, Criminal Law (3d ed), pp 741-743. Id. at 745. In 1927, the Legislature amended the language to its present form, which substitutes “procures, counsels, aids, or abets” for “aid and abet.” This change did not affect the meaning of the statute because the common-law definition of “aid and abet” is to “[h]elp, assist, or facilitate the commission of a crime, promote the accomplishment thereof, help in advancing or bringing it about, or encourage, counsel, or incite as to its commission.” Black’s Law Dictionary (5th ed), p 63. The Legislature merely added terms that were synonymous with the common-law definition of “aid and abet.” See also 1857 CL 6065 (same); 1897 CL 11930 (same); 1915 CL 15757 (changing “c” to “s” in “offence”); 1927 PA 175, ch VII, § 39 (same as MCL 767.39); 1929 CL 17253 (same); 1948 CL 767.39 (same); and 1970 CL 767.39 (same). People v Riddle, 467 Mich 116, 125-126; 649 NW2d 30 (2002). People v Palmer, 392 Mich 370, 378; 220 NW2d 393 (1973). As will be discussed later in this opinion, there have been numerous cases discussing aiding and abetting liability, but none of those cases focused on the language of the statute. Perkins, Criminal Law (3d ed), pp 741-743. Id. at 745. Justice Kelly misapprehends our holding as “improperly extend[ing] the reach of Michigan’s aiding and abetting statute, MCL 767.39.” Post at 20. When the Legislature first codified the aiding and abetting statute in 1855, it reflected an express intent to abrogate the common-law distinction between principals and accessories. However, in all other regards, the Legislature did not utilize language reflecting an intent to abrogate the common-law theories under which an accessory can be held criminally hable for the acts of a principal. One such theory of liability is predicated on the “natural and probable consequences” of a planned criminal act. Perkins, supra. People v Knapp, 26 Mich 112, 114 (1872). Id. at 115. See also People v Foley, 59 Mich 553, 556; 26 NW 699 (1886) (Defendants, who brutally assaulted the victim, “should nevertheless not be convicted of robbery unless robbery was within their common purpose.”) (emphasis added). 62 Mich 280, 286; 28 NW 896 (1886) (quoting 1 Bishop, Criminal Law, § 641). However, this Court ultimately overturned his conviction on other grounds because the preliminary examination testimony did not meet statutory requirements. Prosecution witness Brandi Brewer, defendant’s fiancé, testified that the victim “told his wife he was going to beat the kids ass, and do something to her ....” Justice Kelly argues that “[a]s a practical matter, f***ing up someone necessarily entails leaving them alive.” Post at 26. However, literally in the next breath, she includes in the definition of “f***”: “ ‘[t]o break or destroy.’ ” Id. at 26 n 7, quoting <http://en.wiktionary.Org/wiki/f***> (accessed April 19, 2006). We note that the word “destroy” is also defined as “2. to put an end to, extinguish; 3. to kill; slay.” Random. House Webster’s College Dictionary (1997) (emphasis added). Thus, Justice Kelly’s own definition belies her statement that the word cannot, in any context, be used to mean actions that are likely to result in a killing. Justice Kelly notes that Chapman defined an accomplice's liability as follows: “ ‘ “If one person sets in motion the physical power of another person, the former is criminally responsible for its results. If he contemplated the result, he is answerable, though it is produced in a manner he did not contemplate.” ’ ” Post at 27, quoting Chapman, supra at 286 (citations omitted) (emphasis added). Justice Kelly argues that because defendant never contemplated Pannell’s shooting the victim, he cannot be held answerable under the law for that shooting. We disagree. Here, defendant set into motion the violent physical assault of the victim perpetrated by himself and Pannell. The evidence clearly demonstrates that defendant “contemplated” causing great bodily harm to the victim. One of the potential consequences of causing great bodily harm is that the ultimate result could be the death of the victim. That the death in this case was produced by Pannell’s shooting of the victim rather than because of beating injuries sustained by the victim does not absolve defendant from his criminal responsibility. 423 Mich 261; 378 NW2d 365 (1985). The Court of Appeals panel also relied on People v Barrera, 451 Mich 261, 294; 547 NW2d 280 (1996), but in that case this Court merely quoted from Kelly without any additional analysis. Further, the discussion of Kelly was in response to the dissent in Barrera, not part of the substantive analysis of the opinion that dealt with MB.E 804(b)(3). 31 Mich 99 (1875). Kelly, supra at 278. This Court has recently repudiated the notion that conviction under an aiding and abetting theory can require a higher level of intent than would be necessary to convict a principal. People v Mass, 464 Mich 615, 628; 628 NW2d 540 (2001). People v Aaron, 409 Mich 672, 731; 299 NW2d 304 (1980). People v Langworthy, 416 Mich 630, 650-651; 331 NW2d 171 (1982). We note that none of the older aiding and abetting cases, such as Chapman, has been overruled, and they remain sound law in Michigan. This includes both intending to commit the crime and aiding someone with knowledge that he or she intends to commit the crime. We fail to see how Justice Kelly can conclude that we concluded that defendant was aware of or shared Pannell’s intent to kill. On the contrary, we have explicitly based our holding on the fact that defendant’s intent to inflict great bodily harm is sufficient to maintain his conviction for the resulting death of the victim.
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PER CURIAM. This case requires the Court to consider the application of Michigan’s Whistleblowers’ Protection Act (WPA) to an employee who alleges that she was terminated because she reported a coworker’s plan to violate the law. Pursuant to MCL 15.362, the WPA provides protection to an employee who reports “a violation or a suspected violation of a law” to a public body. Because “a violation or a suspected violation” refers to an existing violation of a law, the plain language of MCL 15.362 envisions an act or conduct that has actually occurred or is ongoing. MCL 15.362 contains no language encompassing future, planned, or anticipated acts amounting to a violation or a suspected violation of a law. Because plaintiff in the instant case merely reported another’s intent to violate a law in the future, plaintiff has no recourse under the WPA. Accordingly, we reverse the Court of Appeals’ contrary decision and remand this case to that court for further consideration. I. BASIC FACTS AND PROCEEDINGS Plaintiff, Barbara Pace, brought suit against her former employer, SIREN Eaton Shelter, Inc. (SIREN), SIREN executive director, Jessica Edel-Harrelson, and SIREN operations manager, Christy Long, claiming that she was wrongfully terminated on January 18, 2012, in violation of the WPA. Plaintiff claims Long stated that she intended to use SIREN grant money to purchase a stove for her daughter. According to plaintiff, Long implied that plaintiff should document the transaction in the name of a specific client to cover up the unauthorized purchase. Long denies ever using grant funds for this purpose or ever discussing such a purchase with plaintiff. Plaintiff testified that she contacted two of her supervisors to inform them of Long’s plans. When plaintiffs supervisors did not act upon her warning, plaintiff reported her incident with Long directly to Edel-Harrelson in December 2011 or early January 2012. Plaintiff stated in her deposition that, at that time, she believed that Long had already purchased the stove with grant funds. Plaintiff alleges that Edel-Harrelson told plaintiff that she would look into the matter, but Edel-Harrelson claimed in a later deposition that she had no recollection of this discussion with plaintiff. SIREN terminated plaintiffs employment on January 18, 2012. Plaintiff alleges that she was terminated for reporting her conversation with Long to Edel-Harrelson. SIREN’s stated reason for terminating plaintiffs employment was plaintiffs allegedly harassing and intimidating behavior toward a fellow employee in violation of defendants’ employment policies in a January 2012 incident. The termination letter stated that plaintiff was terminated because she “engaged in behavior that resulted in fear and intimidation in coworkers, and which was witnessed by three employees.” On April 10, 2012, plaintiff brought the instant action, alleging that her termination was in violation of the WPA. On August 21, 2013, defendants moved for summary disposition under MCR 2.116(0(10), arguing that plaintiff could not establish a prima facie case under the WPA because (1) no conduct had occurred that could be considered a violation or suspected violation of a law, and, therefore, plaintiff did not engage in “protected activity” under the WPA and (2) plaintiff could not demonstrate a causal connection between her alleged report of a suspected violation of a law and her termination. On November 6, 2013, the circuit court granted summary disposition in favor of defendants, ruling that plaintiff failed to establish that a violation or suspected violation of a law occurred. On February 24, 2015, the Court of Appeals reversed the circuit court’s ruling with respect to plaintiffs WPA claim. According to the panel, plaintiff presented sufficient evidence to establish a genuine issue of material fact that she had engaged in “protected activity” and that the alleged protected activity was causally connected to her subsequent termination, rendering summary disposition improper. The panel remanded for proceedings consistent with its opinion. Defendants filed an application for leave to appeal in this Court, arguing that plaintiff failed to establish a prima facie claim under the WPA because there was no evidence that any conduct or actions were taken that constituted a violation or a suspected violation of a law. After review of the briefs filed on the application for leave to appeal, in lieu of granting leave to appeal, we summarily reverse the Court of Appeals and remand this case to that court for further consideration. II. STANDARD OF REVIEW The interpretation of the WPA presents a statutory question that this Court reviews de novo. This Court also reviews de novo decisions on motions for summary disposition brought under MCR 2.116(C)(10). III. ANALYSIS The pertinent issue before this Court is whether plaintiff has stated a viable claim under the WPA. The applicable 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. This provision protects an employee who has reported, or is about to report, a violation or suspected violation of a law to a public body. To establish a prima facie case under MCL 15.362, a plaintiff must show that “(1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the discharge or adverse employment action.” Our initial, and ultimately dispositive, inquiry is whether plaintiff engaged in “protected activity” as articulated in MCL 15.362 when she reported Long’s alleged plan to purchase a stove with SIREN grant money to Edel-Harrelson. When interpreting a statute, the primary goal is to give effect to the intent of the Legislature by construing the language of the statute. When the plain and ordinary meaning of statutory language is clear, judicial construction is neither necessary nor permitted. When a statute does not expressly define a term, courts may consult dictionary definitions to ascertain its ordinary and generally accepted meaning. MCL 15.362 states that the WPA applies to employees who report “a violation or a suspected violation of a law” to a public body. We agree with the Court of Appeals that a plaintiff need not necessarily report an actual violation of a law to receive protection under this provision, as MCL 15.362 explicitly provides protection for “a suspected violation of a law.” Nonetheless, we disagree with the Court of Appeals to the extent it held “that, where an employee has a good faith and reasonable belief that a violation of the law ... is being actively planned, the report of that belief is [] sufficient to trigger the protections of the WPA.” The reference in MCL 15.362 to “a violation or a suspected violation of a law” plainly envisions an act or conduct that has actually occurred or is ongoing. A common dictionary defines “violation” in part as “the act of violating: the state of being violated [.] ” This definition contemplates an existing act that has occurred or is ongoing. That is, “a violation or a suspected violation” refers to an existing violation. The provision must therefore be read in the context of some conduct or act that has already occurred or is occurring, and not some conduct or act that may or may not occur. MCL 15.362 contains no language indicating that future, planned, or anticipated acts amounting to a violation or a suspected violation of a law are included within the scope of the WPA. Consequently, a stated intention to commit an act amounting to a violation of a law in the future does not constitute “a violation or a suspected violation of a law” for purposes of MCL 15.362 as a matter of law. Plaintiff reported to Edel-Harrelson Long’s stated plans to commit a future act in violation of the law. Plaintiff claimed in her deposition that Long said she was “going to use the money” to buy the stove and agreed that Long “was simply telling [plaintiff] what her intention was.” Plaintiff therefore did not engage in “protected activity” for purposes of the WPA, as plaintiff’s report of a suspected planned or future violation of a law is not encompassed within the protections provided by MCL 15.362. In holding to the contrary, the Court of Appeals relied in part on plaintiffs statement in her deposition that at the time of her report to Edel-Harrelson, she “believed” Long had already purchased the stove. Based on this statement, the Court of Appeals concluded that plaintiff reported a “suspected violation of an actual law” and that defendants’ argument that plaintiff only suspected that Long might purchase the stove in the future is inconsistent with the record. However, the WPA provides protection to an employee only where that employee “reports or is about to report” a violation or a suspected violation of a law. Thus, an employee’s unexpressed personal belief when making a report is not relevant for purposes of MCL 15.362. There is no indication in the record that plaintiff reported to Edel-Harrelson her belief that Long had already purchased the stove. Instead, the record indicates that plaintiff reported only her “incident” with Long, referring to the conversation pertaining to Long’s plans to purchase the stove using grant funds in the future. Therefore, because plaintiff reported a suspected future violation of a law, not a suspected existing violation, plaintiff did not engage in “protected activity” for purposes of the WPA, regardless of her deposition testimony pertaining to her subjective belief at the time of her report to Edel-Harrelson. In sum, the evidence presented by plaintiff indicates that Long merely announced her intention to commit a violation of a law in the future. Consequently, because plaintiff reported a suspected future violation of a law rather than “a violation or a suspected violation of a law,” she did not engage in protected activity as a matter of law. By concluding to the contrary, the Court of Appeals unduly expanded the scope of the clear and plain language of the WPA without legislative approval. IV. CONCLUSION Because plaintiff reported Long’s announced intention to buy a stove with unauthorized grant funds, which constituted an expression of an intent to act in the future, not an accomplished or ongoing act, plaintiff has not established conduct that qualifies as “a violation or a suspected violation of a law” under MCL 15.362. Consequently, plaintiff did not engage in “protected activity” under the WPA as a matter of law. In lieu of granting defendants’ application for leave to appeal, we summarily reverse the judgment of the Court of Appeals and remand this case to the Court of Appeals for consideration of the merits of plaintiffs claim of discharge against public policy. Young, C.J., and Markman, Zahra, McCormack, Viviano, and Bernstein, JJ., concurred. LARSEN, J., took no part in the decision of this case. SIREN is a nonprofit entity that provides services to survivors of domestic violence. After plaintiff filed her complaint in April 2012, Edel-Harrelson investigated plaintiffs claim against Long and found no wrongdoing on Long’s part. As the Court of Appeals acknowledged, defendants do not dispute that if Long had actually purchased a stove with grant funds, or taken sufficient steps to constitute an attempt of such a purchase, she would have committed the crime of embezzlement or attempted embezzlement. See MCL 750.174. Defendants presented evidence that on or about January 10, 2012, plaintiff made an inappropriate comment to a coworker. Plaintiff admitted making the comment as a joke. When Carol Hatch, a coworker who witnessed the comment, told plaintiff that the remark was inappropriate, plaintiff asked Hatch if she wished to go “toe to toe” with her. The incident was reported to plaintiffs supervisor, Martha Miller, who discussed the incident the next day with Edel-Harrelson. Edel-Harrelson instructed Miller to issue plaintiff a verbal warning. When Miller met with plaintiff to issue that warning, Hatch averred that plaintiff became angry and approached Hatch in a threatening manner in the presence of two other case managers. Plaintiff denied that she engaged in any physically intimidating behavior. Pace v Edel-Harrelson, 309 Mich App 256; 870 NW2d 745 (2015). Plaintiff also asserted an alternative claim that her discharge was against public policy. The trial court dismissed that claim, ruling that there was no public policy basis to support it. And, in light of its reversal on the WPA claim, the Court of Appeals found it unnecessary to address the merits of the public policy claim. See Anzaldua v Neogen Corp, 292 Mich App 626, 631; 808 NW2d 804 (2011). Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013). Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). West v Gen Motors Corp, 469 Mich 177, 183-184; 665 NW2d 468 (2003) (citations omitted). Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). Id. Brackett v Focus Hope, Inc, 482 Mich 269, 276; 753 NW2d 207 (2008) (citations omitted). Defendants concede that SIREN is a “public body’ for purposes of the WPA. Debano-Griffin v Lake Co, 486 Mich 938, 938 (2010). Pace, 309 Mich App at 268. Merriam-Webster’s Collegiate Dictionary (11th ed). We also find persuasive the Minnesota Court of Appeals’ interpretation of that state’s Whistleblowers’ Act, which contains language very similar to MCL 15.362 of the WPA. See Minn Stat § 181.932(1) (stating that an employer shall not discharge an employee when that employee in good faith “reports a violation or suspected violation of any federal or state law or rule ... to an employer . . .”). Interpreting § 181.932(1), the Minnesota Court of Appeals recognized that it “does not apply where an employee alleges that the employer contemplated but refrained from unlawful conduct.” Grundtner v Univ of Minnesota, 730 NW2d 323, 330 (Minn App, 2007). Rather, “the statutory language [of section 181.932] speaks to conduct which has already transpired, and the fact that an avenue of action has been contemplated by the employer and rejected insulates that conduct from the whistleblower proscriptions.” Id. (quotation marks and citations omitted). Notably, after Grundtner, the Minnesota Legislature amended § 181.932(1) to provide protection to an employee who reports "a violation, suspected violation, or planned violation of any federal or state law or common law or rule adopted pursuant to law ... to an employer . . . .” MCL 15.362. The Court of Appeals’ comparison of the instant case to Debano-Griffin, 486 Mich at 938, is misguided. The plaintiff in Debano-Griffin reported a suspected existing violation of a law. Because we conclude that plaintiff did not engage in “protected activity” under MCL 15.362, we need not consider defendants’ argument that plaintiff failed to demonstrate a causal connection between her report to Edel-Harrelson and her termination. See Anzaldua, 292 Mich App at 631 (“[I]f the WPA does not apply, it provides no remedy and there is no preemption.”) (citations omitted).
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The parties shall include among the issues to be briefed: (1) whether the defendant townships’Agreement pursuant to the Intergovernmental Conditional Transfer of Property by Contract Act, 1984 PA 425, MCL 124.21 et seq. (Act 425), was void because certain provisions of the Agreement contracted away Haring Township’s legislative zoning authority; (2) if so, whether the offending provisions of the defendant townships’ Act 425 Agreement were severable; and (3) whether the challenged provisions of the Act 425 Agreement were authorized by Section 6(c) of Act 425, MCL 124.26(c). The Michigan Townships Association and the Michigan Municipal League are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae. We further order that this case be argued and submitted to the Court together with the case of Clam Lake Twp v Dep’t of Licensing & Regulatory Affairs (Docket No. 151800), at such future session of the Court as both cases are ready for submission. In light of the joint submission, the time allotted for oral argument shall be limited to fifteen minutes per side in each case. MCR 7.314(B)(1). Motions for permission to file briefs amicus curiae and briefs amicus curiae regarding these two cases should be filed in Clam Lake Twp v Dep’t of Licensing & Regulatory Affairs (Docket No. 151800) only and served on the parties in both cases.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the judgment of the Court of Appeals, and we remand this case to the Court of Appeals for reconsideration in light of People v Lockridge, 498 Mich 358 (2015).
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Summary disposition at 499 Mich 852.
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By order of December 22, 2015, the application for leave to appeal the January 21, 2015 order of the Court of Appeals was held in abeyance pending the decision in Montgomery v Louisiana, cert gtd 575 US _; 135 S Ct 1546; 191 L Ed 2d 635 (2015). On order of the Court, the case having been decided on January 25, 2016, 577 US _; 136 S Ct 718; 193 L Ed 2d 599 (2016), the application is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the sentence of the Oakland Circuit Court for the defendant’s first-degree murder conviction, and we remand this case to the trial court for resentencing on that conviction pursuant to MCL 769.25 and MCL 769.25a. See Montgomery, supra; Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012). In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction.
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VIVIANO, J. At issue in this case is whether plaintiff, Ronnisch Construction Group, Inc. (RCG), can seek attorney fees under § 118(2), MCL 570.1118(2), of the Construction Lien Act (CLA) from defendant Lofts on the Nine, LLC (LOTN), given that plaintiff received a favorable arbitration award on its related breach of contract claim but did not obtain a judgment on its construction lien claim. We hold that the trial court may award attorney fees to RCG because RCG was a lien claimant who prevailed in an action to enforce a construction lien through foreclosure. Therefore, we affirm the judgment of the Court of Appeals and remand to the trial court for further proceedings not inconsistent with this opinion. I. FACTS AND PROCEDURAL HISTORY On May 25, 2007, RCG entered into a construction contract with LOTN to construct a condominium building. RCG last provided labor and materials on April 24, 2009. LOTN withheld payment of a portion of the contract amount, maintaining that RCG breached the contract by providing defective construction, dishonestly charging LOTN, and failing to complete the project on time. On June 2, 2009, RCG recorded its Claim of Lien, claiming ■ a construction lien in the amount of $626,163.73, subject to interest on late payments in accordance with the contract. RCG also filed a notice of lis pendens against the subject property. On November 25, 2009, RCG filed this suit against LOTN, seeking foreclosure of the lien and raising claims for breach of contract and unjust enrichment. RCG sought a judgment in the amount of $626,163.73, together with interest, costs, and attorney fees. However, the parties agreed to stay the proceedings to pursue contractually mandated arbitration. Following arbitration, the arbitrator awarded $636,058.72 to RCG and awarded $185,238.36 to LOTN on its recoupment defense and counterclaims, resulting in a net award of $450,820.36 in RCG’s favor. The arbitrator did not address RCG’s claim for attorney fees and costs and instead reserved the issue for the trial court. A few weeks later, LOTN paid the arbitration award in full. Thereafter, RCG filed a motion requesting that the trial court lift the stay of proceedings, confirm the arbitration award, and award RCG its actual attorney fees and costs under § 118(2). The trial court denied RCG’s motion, determining that RCG’s lien foreclosure claim had not been adjudicated by the arbitrator or the trial court and that RCG’s lien was satisfied when it voluntarily accepted LOTN’s tender of payment. Thus, the trial court held that RCG was not a prevailing lien claimant under the CLA, a necessary predicate to the recovery of attorney fees under § 118(2), and that the court therefore did not have the discretion to award attorney fees to RCG. On appeal, the Court of Appeals vacated the portion of the trial court’s order denying RCG’s request for attorney fees and remanded for further proceedings. The Court of Appeals held that, having brought both a contract claim and a foreclosure of lien claim, the fact that RCG “substantially prevail[ed] on the amounts it sought under the claim of lien made it a prevailing party” under the CLA. The Court of Appeals also distingushed this Court’s order in HA Smith Lumber & Hardware Co v Decina, noting that, unlike the instant case, the subcontractors in Decina did not prevail on their lien claims because their liens could not legally attach to the property. Accordingly, the Court of Appeals concluded that the trial court had discretion under § 118(2) to award attorney fees. LOTN sought leave to appeal in this Court. We granted leave to appeal, asking the parties to address: whether the Court of Appeals erred in holding that the plaintiff contractor, who filed a claim of lien under the Construction Lien Act (CLA), MCL 570.1101 et seq., and then filed a circuit court action against the defendant property owner, alleging breach of contract, foreclosure of lien, and unjust enrichment claims, was entitled to an award of attorney fees as a “prevailing party” under MCL 570.1118(2), when the plaintiff prevailed in binding arbitration on its contract claim, but neither the arbitrator nor the circuit court resolved the plaintiffs foreclosure of lien claim. See HA Smith Lumber & Hardware Co v Decina, 480 Mich 987 (2007).[ ] II. STANDARD OF REVIEW We review a trial court’s award of attorney fees and costs for an abuse of discretion. An abuse of discretion occurs when the trial court’s decision is outside the range of reasonable and principled outcomes. A trial court necessarily abuses its discretion when it makes an error of law. Questions of statutory interpretation are reviewed de novo. In interpreting § 118(2), our goal is to give effect to the Legislature’s intent, focusing first on the statute’s plain language. In doing so, 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. III. ANALYSIS The CLA is “intended to protect the interests of contractors, workers, and suppliers through construction liens, while protecting owners from excessive costs.” The fundamental purpose of the CLA with respect to contractors, workers, and suppliers is to provide a method to secure payment for their labor and materials. The Legislature has declared that the CLA is “a remedial statute . . . [that] shall be liberally construed to secure the beneficial results, intents, and purposes of th[e] act.” Accordingly, when interpreting the CLA, we should always be mindful of the CLA’s intended purpose. In this case, RCG sued to recover the unpaid amount on its contract and, after receiving a favorable arbitration award, sought attorney fees under § 118(2) of the CLA, which reads in pertinent part: In an action to enforce a construction lien through foreclosure, the court shall examine each claim and defense that is presented and determine the amount, if any, due to each lien claimant or to any mortgagee or holder of an encumbrance and their respective priorities. The court may allow reasonable attorneys’ fees to a lien claimant who is the prevailing party.[ ] Application of § 118(2) in this case requires us to determine whether RCG was (1) a lien claimant, (2) in an action to enforce a construction lien through foreclosure, (3) who was the prevailing party. A. RCG WAS A LIEN CLAIMANT The first inquiry in determining whether a party may seek attorney fees under the CLA is whether the party is a lien claimant. Under § 118(2), the trial court has discretion to award attorney fees to “a lien claimant who is the prevailing party.” The CLA defines a “lien claimant” as “a person having a right to a construction lien under [the] act.” RCG had a valid claim of lien that attached to LOTN’s interest in the property. Further, it is undisputed that LOTN did not tender full payment to RCG on the contract amount before the arbitration award. Therefore, when RCG received its arbitration award, it was a lien claimant because it possessed “a right to a construction lien” under the CLA. Our conclusion that RCG was a lien claimant makes the instant case distinguishable from this Court’s order in Decina. LOTN’s argument that Decina controls the outcome of this case overlooks the crucial distinction between the two—RCG was a lien claimant under § 118(2) when it received a favorable determination on its contract claim, whereas the subcontractors in Decina were not. The litigation in Decina stemmed from a construction contract dispute between homeowners, their general contractor, and two subcontractors. The dispute arose after the homeowners withheld final payment to the general contractor and after the general contractor did not pay the subcontractors for the labor and materials they provided. Pertinent to this case, the subcontrac tors brought lien foreclosure claims against the homeowners and breach of contract claims against the general contractor. Following a bench trial, the trial court ruled that the homeowners had paid the entire contract amount to the general contractor and that the subcontractors’ liens therefore did not attach to the property because the homeowners had paid the contract amount in full. But the trial court ruled in favor of the subcontractors on their breach of contract claims and subsequently ordered the general contractor to pay their attorney fees. The Court of Appeals affirmed, holding that the subcontractors were a prevailing party because they had prevailed on “a claim brought in the alternative for the same injury or loss raised in the CLA claim.” This Court reversed by order and vacated the trial court’s order granting attorney fees. This Court stated that to be a “prevailing party” under § 118(2), the party “must prevail on the lien foreclosure action.” This Court then held that the subcontractors lost on their lien claim and therefore could not recover attorney fees, stating: In this case, the unpaid subcontractors filed a lien foreclosure action against the property owners and a breach of contract action against the general contractor. The sub contractors lost on their lien claim but prevailed on the breach of contract claim. While the statute allows a lien claimant to bring an underlying contract action at the same time as the lien foreclosure action, it does not preclude the option of bringing the two actions separately. MCL 570.1117(5). If the subcontractors had chosen to bring their breach of contract claims against the general contractor as a separate action, they would not have been allowed to recover attorney fees. The language of MCL 570.1118(2) does not permit recovery of attorney fees on the contract action merely because it was brought together with the lien foreclosure action.[ ] As noted earlier, the crucial distinction between Decina and the instant case is that the subcontractors in Decina were not lien claimants. In Decina, the trial court found that the homeowners had paid the entire contract amount owed to the general contractor. The homeowners’ tender of full payment extinguished the subcontractors’ right to a construction lien under the CLA. Accordingly, this Court rightly acknowledged that the subcontractors lost on their lien claims. Therefore, the Decina subcontractors no longer had “a right to a construction lien under [the CLA]” and thus could no longer be considered “lien claimants.” The rule that emerges from Decina is simple—a party cannot lose on its lien claim and receive attorney fees under § 118(2). As a result, the subcontractors in Decina could not seek attorney fees under § 118(2) because fees under that section may only be awarded to “a lien claimant who is the prevailing party.” Accordingly, Decina does not control the outcome of this case. In contrast to the subcontractors in Decina, RCG was a lien claimant when it received its arbitration award because it possessed “a right to a construction lien” under the CLA. B. BCG BROUGHT AN ACTION TO ENFORCE A CONSTRUCTION LIEN THROUGH FORECLOSURE We next turn to whether RCG was the prevailing party in an action to enforce a construction lien through foreclosure when its lien claim was not adjudicated but it prevailed on its related contract claim. We conclude that the plain language of § 118(2) does not expressly limit the trial court’s ability to award attorney fees to a lien claimant who is the prevailing party on the lien claim. Rather, reading the statute as a whole makes clear that a “lien claimant who is the prevailing party” may seek attorney fees “[i]n an action to enforce a construction lien through foreclosure . . . .” The language of § 118(2) indicates that the Legislature was aware that an action to enforce a construction lien through foreclosure may involve multiple, separate claims. The first sentence of § 118(2) reads, “In an action to enforce a construction lien through foreclosure, the court shall examine each claim and defense that is presented and determine the amount, if any, due to each lien claimant or to any mortgagee or holder of an encumbrance and their respective priorities.” We presume the Legislature knew the meaning of the words it used when drafting this provision. And, here, the Legislature used the terms “action” and “claim” in the same sentence. An “action” is “[a] civil or criminal judicial proceeding.” “A party bringing an ‘action’ seeks to recover from the opposing party . . . .” On the other hand, “a claim consists of facts giving rise to a right asserted in a judicial proceeding, which is an action. In other words, the action encompasses the claims asserted.” Accordingly, in § 118(2), the phrase “action to enforce a construction lien through foreclosure” refers to a civil judicial proceeding in which foreclosure of a construction lien is sought, and it is comprised of all the claims asserted in the action, including any related claim for breach of contract. By beginning with the phrase “[i]n an action to enforce a construction lien through foreclosure,” § 118(2) establishes that the focus is on whether the lien claimant is a prevailing party in the action (i.e., the entirety of the judicial proceeding) in which the lien foreclosure claim was asserted. There is no indication from the language of § 118(2) that the lien claimant must receive a judgment on its foreclosure claim for it to be the prevailing party. The Legislature directed the trial court to “examine each claim and defense that is presented and determine the amount, if any, due to each lien claimant. . . ,” Consistent with this directive, a lien claimant in such an action might prevail on its related breach of contract claim and receive the entire amount to which it is entitled under its lien claim. In that scenario, the lien claimant would have prevailed in its action to enforce the construction lien despite not winning its specific lien foreclosure claim and, thus, would be entitled to attorney fees under § 118(2). Under Michigan law, a lien foreclosure claim and a claim for breach of the underlying contract are integrally related. A contract is a necessary prerequisite to a construction lien. A construction lien stems from the underlying contract, and its amount is determined by the contract’s terms. These principles are reflected throughout the CLA. In essence, “[t]he lien is but a means for enforcing the payment of the debt arising from the performance of the contract. . . ,” A party may proceed to enforce its lien through foreclosure while simultaneously seeking recovery based on the contract from which the lien arose. But there can only be one satisfaction. Thus, a lien foreclosure claim and a claim for breach of the underlying contract are integrally related, and allowing a party to pursue both “merely gives it a better chance of recovering what it is owed.” In the instant case, RCG filed a complaint alleging claims for breach of contract and foreclosure of its lien. Because these claims are integrally related, if RCG is able to establish that it prevailed on its breach of contract claim, it will have prevailed in its “action to enforce a construction lien through foreclosure . . . .” C. RCG WAS A PREVAILING PARTY Having determined that RCG was a lien claimant in an action to enforce a construction lien through foreclosure, we must finally determine whether RCG was the prevailing party given that it received a net arbitration award of $450,820.36 in its favor. Neither the CLA nor Decina define the term “prevailing party”; however, as a legal term of art, it must be construed and understood according to its peculiar and appropriate meaning. A “prevailing party” is “[t]he party to a suit who successfully prosecutes the action . . . , prevailing on the main issue, even though not necessarily to the extent of his original contention. The one in whose favor the decision or verdict is rendered and judgment entered.” For there to be a “prevailing party,” there must have been a material and enforceable alteration of the legal relationship of the parties resulting from judicial imprimatur. In this case, RCG received an award on its contract claim pursuant to a final and binding arbitration. This award constituted a conclusive determination of the rights and obligations of the parties. That is, the arbitration produced an enforceable award that altered the legal relationship of the parties. Moreover, through the arbitration award, RCG prevailed on the main issue in the action, i.e., it obtained an enforceable award compensating it for its labor and materials. Under the CLA, a lien claimant becomes the prevailing party when the rights and obligations of the parties that are at the heart of its lien claim are conclusively determined in its favor. RCG’s contract and lien foreclosure claims both sought to obtain payment for the labor and materials supplied by RCG, and both claims necessarily required determinations to be made regarding the parties’ rights and obligations stemming from the underlying contract. By prevailing on one of those claims—the contract claim—RCG successfully prosecuted the action, receiving the requisite conclusive determination and thereby prevailing on its main issue. Further, that the trial court never entered a judgment confirming the arbitration award does not preclude us from determining that RCG was the prevailing party. The lack of judicial imprimatur in RCG’s favor is a direct result of the trial court’s failure to confirm RCG’s arbitration award upon its motion. Contrary to the trial court’s conclusion, LOTN’s payment of the arbitration award did not obviate the need to confirm the award. In certain circumstances, confirmation may be necessary even if the award has been satisfied. For instance, the winning party at arbitration may desire to seek costs. Or, as in the instant case, a party may wish to seek attorney fees. Although Michigan courts have not spoken on the issue, we agree with a number of other courts that a party cannot avoid confirmation by paying an arbitration award before the confirmation proceeding. Therefore, LOTN’s payment of the arbitration award should not have precluded the trial court from providing the necessary judicial imprimatur in this case by confirming the award. Finally, we disagree with the dissent’s interpretation of the statute, which would require RCG to refuse the proffered payment and continue to litigate its foreclosure claim to remain eligible to seek attorney fees under § 118(2). Such a conclusion would encourage gamesmanship by defendants, allowing them to prolong litigation and delay payment on the contract claim in an attempt to drain the lien claimant’s resources before it can obtain a judgment on its lien claim and seek attorney fees. It also directly contravenes this Court’s policy of encouraging settlements and discouraging litigation. Therefore, we instead conclude that RCG’s acceptance of payment did not preclude it from seeking attorney fees. We hold that RCG was entitled to seek attorney fees under the CLA because it prevailed on the main issue in its construction lien action when it received a favorable arbitration award on its contract claim. The arbitration award constituted a conclusive and enforceable determination of the rights and obligations of the parties that were at the heart of RCG’s lien claim. Therefore, RCG was the prevailing party in its action to enforce a construction lien through foreclosure. IV. CONCLUSION We hold that the trial court may award attorney fees to RCG because it was a lien claimant who was the prevailing party in an action to enforce a construction lien through foreclosure by virtue of receiving a favorable arbitration award on its breach of contract claim. The judgment of the Court of Appeals is affirmed, and the case is remanded to the trial court for further proceedings not inconsistent with this opinion. MaRKMán, McCormack, and Bernstein, JJ., concurred with Viviano, J. MCL 570.1101 et seq. Before enactment of the CLA in 1980, its predecessor, the Mechanics’ Lien Act, former MCL 570.1 et seq., governed construction liens in Michigan. RCG’s unjust enrichment claim is not at issue in this appeal. Ronnisch Constr Group, Inc v Lofts on the Nine, LLC, 306 Mich App 203, 214; 854 NW2d 744 (2014). Id. at 211. H A Smith Lumber & Hardware Co v Decina, 480 Mich 987 (2007). Ronnisch, 306 Mich App at 213. Id. at 211. Ronnisch Constr Group, Inc v Lofts on the Nine, LLC, 497 Mich 1003 (2015). Moore v Secura Ins, 482 Mich 507, 516; 759 NW2d 833 (2008). Id. People v Duncan, 494 Mich 713, 723; 835 NW2d 399 (2013). Madugula v Taub, 496 Mich 685, 695; 853 NW2d 75 (2014). Id. at 696. Id. Id. Vugterveen Sys, Inc v Olde Millpond Corp, 454 Mich 119, 121; 560 NW2d 43 (1997); see also 1980 PA 497, title (stating that the CLA is an act “to establish, protect, and enforce by lien the rights of persons performing labor or providing material or equipment for the improvement of real property”). See Smalley v Gearing, 121 Mich 190, 198; 79 NW 1114 (1899) (stating that the Mechanics’ Lien Act “provide[d] a method for securing payment to those whose labor or material goes into the building . . . ”). That the CLA is designed to protect the interests of such parties is further supported by the substantial-compliance provision contained in the act. See MCL 570.1302(1). MCL 570.1302(1). This provision, like its predecessor in the Mechanics’ Lien Act, former MCL 570.27, codifies the longstanding principle that construction lien statutes must be liberally construed to effectuate their purpose. See Scales v Griffin, 2 Doug 54, 59 (Mich, 1845). We agree with the dissent that a “provision requiring that a statute be liberally construed ‘should be regarded as requiring a fair interpretation as opposed to a strict or crabbed one—which is what courts are supposed to provide anyway.’ ” Post at 572 n 12, quoting Scalia & Garner, Reading Law: The Interpretation of Legal Texts (St Paul: Thomson/West, 2012), p 233. We disagree that merely citing such a directive—like the dissent’s author did recently in Associated Builders & Contractors v Lansing, 499 Mich 177; 880 NW2d 765 (2016)— implies otherwise. Notably, it is this very principle—fairly interpreting the text of the statute at issue—that impels us to reject the dissent’s “crabbed” interpretation of the statute. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich 184, 188; 253 NW2d 646 (1977). Additionally, the statute provides that a court may allow reasonable attorney fees to a prevailing defendant if the court determines that the lien claimant’s action to enforce a construction lien was vexatious. MCL 570.1118(2). MCL 570.1105(2). RCG’s construction lien on LOTN’s interest in the condominium building arose once it made improvements to the condominium building. MCL 570.1107(1). That lien attached to LOTN’s entire interest. MCL 570.1107(2). RCG properly filed its claim of lien in the amount of $626,163.73 within 90 days after it last furnished labor or material, and its lien was properly recorded on June 2, 2009. See MCL 570.1111(1). Therefore, we agree with the trial court’s determination that RCG perfected its hen. However, if a lien claim has not been adjudicated when a dispositive ruling on the underlying contract claim is made, and questions regarding the validity of a plaintiffs lien remain, they can be resolved in conjunction with a motion to award attorney fees. The plaintiff then would still have the burden to prove the validity of the lien. See Skyhook Lift-Slab Corp v Huron Towers, Inc, 369 Mich 36, 39; 118 NW2d 961 (1963) (stating that the plaintiff bears the burden of demonstrating compliance with the statutory requirements necessary for a lien claim); In re Eddy Estate, 354 Mich 334, 348; 92 NW2d 458 (1958) (recognizing that the party seeking attorney fees bears the burden of proving entitlement to those fees). MCL 570.1105(2). The fact that RCG was not determined to be a lien claimant before the arbitration award is not dispositive. Instead, the material inquiry is whether RCG, as the party seeking fees, was a lien claimant under the CLA when it became the prevailing party by virtue of the arbitration award in its favor. Contrary to the dissent’s view, we do not believe that whether RCG was a lien claimant at that critical moment is contingent on a prior or contemporaneous judicial determination that it had a right to a lien. It is ironic that in an opinion that claims a monopoly on the statutory text, the dissent hinges its analysis on a requirement that is nowhere to be found in the text of the CLA. See MCL 570.1105(2) (defining “lien claimant” as “a person having a right to a construction lien under this act”). H A Smith Lumber & Hardware Co v Decina, 258 Mich App 419, 421-422; 670 NW2d 729 (2003), vacated in part 471 Mich 925 (2004). The subcontractors contracted with the general contractor to provide materials and labor. Decina, 258 Mich App at 422. Id. Id. at 423. Although the subcontractors did not contract with the homeowners directly, they were nevertheless at least initially entitled to a construction lien under the CLA. See MCL 570.1107(1) (“Each.. . subcontractor . .. who provides an improvement to real property has a construction lien upon the interest of the owner or lessee who contracted for the improvement to real property .. ..”). H A Smith Lumber & Hardware Co v Decina (On Remand), 265 Mich App 380, 382; 695 NW2d 347 (2005), rev’d 480 Mich 987 (2007). Id. Id. at 384-385. Decina, 480 Mich at 988. id. Decina, 258 Mich App at 424, 431. See MCL 570.1107(1) and (6); see also Vugterveen, 454 Mich at 129 (recognizing that MCL 570.1107(6) provides a real property owner with a defense to a claim of lien if the owner can show that the sum of payments made pursuant to the specific contract plus the claim of lien exceed the price of the contract). Decina, 480 Mich at 988. MCL 570.1105(2). MCL 570.1118(2) (emphasis added). Accordingly, this Court correctly recognized that § 118(2) did “not permit recovery of attorney fees on the contract action merely because it was brought together with the lien foreclosure action.” Decina, 480 Mich at 988. Put simply, bringing lien foreclosure and contract claims in the same action did not allow the Decina subcontractors to evade the lien claimant requirement. MCL 570.1105(2). MCL 570.1118(2). Emphasis added. The Legislature’s understanding that separate claims could be brought in the foreclosure action is also reflected elsewhere in the CLA. See MCL 570.1117(5) (“In connection with an action for foreclosure of a construction lien, the lien claimant also may maintain an action on any contract from which the lien arose.”). Auditor General v McLaulin, 83 Mich 352, 354; 47 NW 233 (1890). Black’s Law Dictionary (10th ed). To understand the meaning of words in a statute that are not otherwise defined, we may resort to dictionary definitions for guidance. People v Jones, 467 Mich 301, 304; 651 NW2d 906 (2002). Because the terms at issue in this case have a peculiar legal meaning, it is appropriate to consult a legal dictionary. Id. at 304-305. See also MCL 8.3a. Epps v 4 Quarters Restoration LLC, 498 Mich 518, 530; 872 NW2d 412 (2015). CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich 549, 555; 640 NW2d 256 (2002). Black’s Law Dictionary (10th ed) defines “claim” as: 1. A statement that something yet to be proved is true .... 2. The assertion of an existing right; any right to payment or to an equitable remedy, even if contingent or provisional.... 3. A demand for money, property, or a legal remedy to which one asserts a right; [especially], the part of a complaint in a civil action specifying what relief the plaintiff asks for. Some of the confusion underlying the proper interpretation of § 118(2) may stem from the fact that “action” and “cause of action,” i.e., a claim, are often used synonymously, although they do not strictly and technically have the same meaning. Otto v Village of Highland Park, 204 Mich 74, 80; 169 NW 904 (1918). For instance, in MCL 570.1117(5), the Legislature used “action” to refer both to a judicial proceeding and to a claim that may be asserted within that proceeding. In such circumstances, we must be careful to look for contextual clues in discerning the meaning of the words in the statute. In Decina, this Court correctly noted that under § 118(2), the party must prevail on the lien foreclosure action which, under the plain language of § 118(2), refers to a judicial proceeding. But, perhaps influenced by the inartful drafting of the CLA, the Decina Court also used the terms “action” and “claim” interchangeably. See, e.g., Decina, 480 Mich at 988 (“The subcontractors lost on their lien claim but prevailed on the breach of contract claim. While the statute allows a lien claimant to bring an underlying contract action at the same time as the lien foreclosure action, it does not preclude the option of bringing the two actions separately.”). Nevertheless, despite this confusion, the rule emerging from Decina is clear—a party that lost on its lien claim cannot receive attorney fees under § 118(2). In interpreting statutes, “words and clauses will not be divorced from those which precede and those which follow.” Sanchick v State Bd of Optometry, 342 Mich 555, 559; 70 NW2d 757 (1955). MCL 570.1118(2) (emphasis added). As explained later in this opinion, this is because the lien claimant will have used the CLA to achieve its main objective in filing suit, i.e., to obtain payment for its labor or materials. See Willard v Magoon, 30 Mich 273, 279 (1874). See Canvasser Custom Builders, Inc v Seskin, 38 Mich App 643, 647-648; 196 NW2d 859 (1972). Erb Lumber Co v Homeowner Constr Lien Recovery Fund, 206 Mich App 716, 722; 522 NW2d 917 (1994). For example, in order to enter a judgment of foreclosure, the court must find that the amount adjudged to be due on the contract has not been paid. MCL 570.1121(1); Dane Constr, Inc v Royal’s Wine & Deli, Inc, 192 Mich App 287, 294; 480 NW2d 343 (1991). (“We conclude, therefore, that although the amount of damages that plaintiff can recover for breach of contract has been fixed by the mediation award, thereby limiting the amount that may he claimed under the construction lien, plaintiff maintains its right to collect those damages through the remedy provided by the construction lien.”). See also MCL 570.1107(1) (“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.”); MCL 570.1113(1) (stating that an owner or lessee must make a copy of the contract available for inspection upon written demand by a lien claimant); MCL 570.1114 (stating that a contractor must have a written contract in order to have a right to a construction lien on the interest of an owner or lessee in a residential structure); MCL 570.1117(5) (“In connection with an action for foreclosure of a construction lien, the lien claimant also may maintain an action on any contract from which the lien arose.”). John S Hanes & Co v Wadey, 73 Mich 178, 181; 41 NW 222 (1889). F M Sibley Lumber Co v Wayne Circuit Judge, 243 Mich 483, 485-489; 220 NW 746 (1928). This may occur by bringing foreclosure and contract claims in the same action, as in the instant case, or by proceeding with separate contract and foreclosure actions, as in Bosch v Altman Constr Corp, 100 Mich App 289, 292-293; 298 NW2d 725 (1980). See F M Sibley, 243 Mich at 486, quoting 40 CJ, p 367. Old Kent Bank of Kalamazoo v Whitaker Constr Co, 222 Mich App 436, 439; 566 NW2d 1 (1997). See MCL 570.1118(2). As the Court of Appeals panel observed, the amount awarded was 72% of the amount RCG requested. Ronnisch, 306 Mich App at 207 n 4. MCL 8.3a. In ascertaining the meaning of a term, a court may determine the meaning at the time the statute was enacted by consulting dictionaries from that time. See, e.g., Cain v Waste Mgt, Inc (After Remand), 472 Mich 236, 247; 697 NW2d 130 (2006); Title Office, Inc v Van Burén Co Treasurer, 469 Mich 516, 622; 676 NW2d 207 (2004). Black’s Law Dictionary (5th ed). See Buckhannon Bd & Care Home, Inc v West Virginia Dep’t of Health & Human Resources, 532 US 598, 602-605; 121 S Ct 1835; 149 L Ed 2d 855 (2001); id. at 622 (Scalia, J., concurring). See Corallo v Merrick Central Carburetor, Inc, 733 F2d 248, 252 (CA 2, 1984); Marion Mfg Co v Long, 588 F2d 538, 541 (CA 6, 1978); Nix v Spector Freight Sys, Inc, 264 F2d 875, 877 (CA 3, 1959). As previously noted, one of the fundamental purposes of the CLA is to protect contractors, workers, and suppliers by providing a method to secure payment for their labor and materials. The dissent frets that allowing attorney fees when a party prevails on the related contract action will open the floodgates to claims for attorney fees under § 118(2) any time a party prevails on other, unspecified, ancillary claims. However, it is hard to imagine other ancillary claims bearing as close a relationship as the lien foreclosure and underlying contract claims. The plain language of the CLA contemplates that a party may achieve its main objective through either of these integrally related claims. And, not surprisingly, while the CLA repeatedly refers to the underlying contract, it does not specifically refer to any other ancillary claims. See note 51 of this opinion. In any event, such claims are not at issue here, and, to the extent they may exist, this Court can address them in a future case. That RCG did not recover the full amount of damages sought is not dispositive with regard to whether it was a prevailing party. For the related determination whether a party is the prevailing party for the purposes of MCR 2.625 (concerning taxation of costs), courts have held that recovery of the full amount of damages is unnecessary See Forest City Enterprises, Inc v Leemon Oil Co, 228 Mich App 57, 81; 577 NW2d 150 (1998). Instead, “in order to be considered a prevailing party, that party must show, at the very least, that its position was improved by the litigation.” Id. RCG can certainly demonstrate that its position was improved by the litigation given that it recovered 72% of the amount sought. Under MCR 3.602(1), “[a] party may move for confirmation of an arbitration award within one year after the award was rendered.” “Confirmation is a summary proceeding where the court merely converts an arbitration award into a final judgment.” 6 CJS, Arbitration, § 181, p 248 (2004). A party may seek confirmation for various reasons. For instance, a party may initiate confirmation proceedings if it desires that an official record of the confirmation and judgment be made. See 6 CJS, Arbitration, § 178, pp 244-246 (2004). See MCR 3.602(M). See, e.g., Henderson v Summerville Ford-Mercury Inc, 406 SC 440, 454; 748 SE2d 221 (2013) (holding that payment does not moot a confirmation request); Drummond v State Farm Mut Auto Ins Co, 280 Neb 258, 262; 785 NW2d 829 (2010) (same); Mikelson v United Servs Auto Ass’n, 122 Hawaii 393,400-401; 227 P3d 559 (Hawaii Ct App, 2010) (concluding that satisfaction did not render confirmation moot because confirmation was statutorily mandated and because confirmation is concerned with the propriety of the award itself and is unrelated to enforcement); In re Bernstein Family Ltd Partnership v Sovereign Partners, LP, 66 AD3d 1, 6; 883 NYS2d 201 (2009) (“[I]t is irrelevant in a proceeding to confirm an award whether there is a dispute about whether the award has been fully satisfied.”); Collins v D R Horton, Inc, 361F Supp 2d 1085, 1093 (D Ariz, 2005) (holding that confirmation was mandatory, regardless of payment, unless the award is modified, vacated, or corrected); Pacific Law Group: USA v Gibson, 6 Cal App 4th 577, 580; 7 Cal Rptr 2d 878 (1992) (holding that nothing in California’s arbitration statute limits confirmation to circumstances in which the award has not heen paid). But see Stewart Title Guaranty Co v Tilden, 2003 Wy 31, ¶ 9; 64 P3d 739 (2003) (holding that a trial court may deny a confirmation motion when satisfaction has rendered the controversy moot); Murphy v Nat’l Union Fire Ins Co, 438 Mass 529, 533; 781 NE2d 1232 (2003) (same); Kenneth W Brooks Trust A v Pacific Media LLC, 111 Wash App 393, 400; 44 P3d 938 (2002) (same); Derwin v Gen Dynamics Corp, 719 F2d 484, 491-493 (CA 1, 1983) (affirming the trial court’s denial of confirmation of the award on the ground that confirmation was unwarranted given that the award had been satisfied). Nor does LOTN’s payment of the arbitration award before confirmation affect RCG’s status as a prevailing party. Rather, its status as a prevailing party is determined as of the date of the arbitration award, not any subsequent judgment confirming the award. See Marion, 588 F2d at 541 (“Thus, if the [arbitration] award is upheld in a reviewing court, the rights of the parties are determined from the date of the award and not the date of the court’s judgment confirming the award.”); 4 Am Jur 2d, Alternative Dispute Resolution, § 204, p 261 (2016). Cf. Solution Source, Inc vLPR Assoc Ltd Partnership, 252 Mich App 368, 381; 652 NW2d 474 (2002) (“A lien claimant without significant financial resources could end up being forced to abandon his valid lien claim if met with resistance from the lienor at every turn.”). See Mayhew v Berrien Co Rd Comm, 414 Mich 399, 410; 326 NW2d 366 (1982); People v Gill, 247 Mich 479, 480; 226 NW 214 (1929). The dissent asserts that RCG’s acceptance of LOTN’s payment extinguished its right to a lien, thereby precluding it from later seeking attorney fees. But this argument loses sight of the CLA’s plain language, which only requires that a party be a lien claimant when it becomes the prevailing party, not when it seeks attorney fees. See MCL 570.1118(2). Because RCG became the prevailing party by virtue of the arbitration award in its favor, LOTN’s subsequent payment did not bar RCG from seeking attorney fees. See Solution Source, 252 Mich App at 381 (“Therefore, we hold that satisfaction of a lien does not bar a lien claimant who is the prevailing party from recovering its appellate and postjudgment attorney fees incurred in connection with enforcement of its lien.”). We disagree with the dissent’s assertions that our opinion is not faithful to the text, context, and purpose of the CLA. Instead, we believe it is painstakingly so and that the dissent’s histrionics are a poor substitute for proper legal analysis. We note that under MCL 570.1118(2), “[t]he court may allow reasonable attorneys’ fees . .. .” (Emphasis added.) The use of the term “may” indicates discretionary, rather than mandatory, action. Murphy v Mich Bell Tel Co, 447 Mich 93, 100; 523 NW2d 310 (1994). Thus, a party who demonstrates that it is a prevailing lien claimant in an action to enforce a construction lien through foreclosure may seek and be awarded attorney fees under MCL 570.1118(2) but is not entitled to them. On remand, the decision to award reasonable attorney fees remains within the sound discretion of the trial court. See Vugterveen, 454 Mich at 133 (“A court has discretion to award attorney fees to a prevailing lien claimant. . . .”).
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals, and we remand this case to the Wayne Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for consideration as on leave granted.
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The parties shall file supplemental briefs within 42 days of the date of this order addressing: (1) whether the hospital intern’s medical progress notes indicating that the plaintiffs decedent had been observed with the breathing tube lodged in her esophagus were admissible evidence; and (2) if so, whether the Court of Appeals correctly ruled that even if they were admissible, the notes were insufficient to create a question of fact as to whether the defendants were grossly negligent. The parties should not submit mere restatements of their application papers.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Muskegon Circuit Court for consideration of the defendant’s issue regarding the assessment of court costs.
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reported below: 313 Mich App 457. The parties shall file supplemental briefs within 42 days of the date of this order addressing: (1) whether the knock-and-talk procedures employed by the law enforcement officers violated the general public’s implied license to approach the defendants’ residences and constituted unconstitutional searches in violation of the Fourth Amendment, see Florida v Jardines, 569 US _; 133 S Ct 1409, 1416 n 3, 1422; 185 L Ed 2d 495 (2013); (2) whether the conduct of the law enforcement officers “objectively reveals a purpose to conduct a search” to obtain evidence without the necessity of obtaining a warrant, id. at 1417; and (3) whether the conduct of the law enforcement officers was coercive, see United States v Spotted Elk, 548 F3d 641, 655 (CA 8, 2008). The parties should not submit mere restatements of their application papers. The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in these cases may move the Court for permission to file briefs amicus curiae. Motions for permission to file briefs amicus curiae and briefs amicus curiae regarding these two cases should be filed in People v Frederick (Docket No. 153115) only and served on the parties in both cases.
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By order of May 27, 2015, the application for leave to appeal the November 6, 2014 judgment of the Court of Appeals was held in abeyance pending the decision in People v Hartwick (Docket No. 148444). On order of the Court, the case having been decided on July 27, 2015, 498 Mich 192 (2015), the application is again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate that part of the Court of Appeals judgment addressing the propriety of court costs under MCL 771.3(5). Though probation supervision costs and reimbursement of expenses incurred in prosecuting the defendant or providing her with legal assistance are authorized under that statute, court costs are not. See People v Cunningham, 496 Mich 145 (2014), and People v Juntikka, 310 Mich App 306 (2015). We remand this case to the Macomb Circuit Court for further proceedings. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court. We do not retain jurisdiction.
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Markman, J. (dissenting). I respectfully dissent from this Court’s order denying leave to appeal. I would instead reverse the judgment of the Court of Appeals to the extent it concluded that the trial court erred by granting summary disposition in favor of defendant Greg Wright and the various entities associated with him (the Wright defendants) on plaintiffs’ express warranty claims. ‘‘[C]ontracts are to be construed in their entirety.” Perry v Sied, 461 Mich 680, 689 (2000). Article 12 of the contract between plaintiffs and the Wright defendants expressly warrants that “all Work will be of good quality, free from faults and defects and in conformance with the Contract Documents.” It includes no time limitation. Article 21, however, provides that “[t]he Contractor shall correct any Work that fails to conform to the requirements of the Contract Documents . .. within a period of eighteen (18) months from the date of the Final Certificate of Occupancy . . . .” In my judgment, contrary to the Court of Appeals’ conclusion, Articles 12 and 21 are not independent provisions, but rather refer to the same subject matter—‘Work” in conformance with the “Contract Documents”—and consequently must be read together to interpret the contract in its entirety. And when read together, these articles provide that the “Contractor,” i.e., the Wright defendants, expressly warrants that all “Work” will be in conformance with the “Contract Documents” and that all “Work” that is not in conformance with the “Contract Documents” will be corrected within 18 months following the “date of the Final Certificate of Occupancy.” That is, Article 21 imposes an 18-month limitation on the express warranty set forth in Article 12. Because the 18-month limitation has long since expired, I would conclude that plaintiffs cannot proceed with their express-warranty claims against the Wright defendants. Because I believe the Court of Appeals clearly erred by concluding that the express warranty set forth in Article 12 was not subject to the 18-month limitation set forth in Article 21, I respectfully dissent.
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MARKMAN, J. This case arises from a traffic stop of defendant made after police officers observed that his vehicle’s registration plate was partially obstructed by a bumper-mounted towing ball, a civil infraction under MCL 257.225(2) and (7). During this stop, the officers smelled burnt marijuana within the vehicle, leading to a search of the vehicle during which they discovered contraband, including marijuana, cocaine, and a handgun. Defendant subsequently moved in the trial court to suppress that contraband as the fruit of an illegal seizure because, according to defendant, the officers lacked a lawful basis on which to stop his vehicle. The trial court denied defendant’s motion, concluding that his obstructed plate violated MCL 257.225(2) and therefore provided a lawful basis on which to stop his vehicle. The Court of Appeals, however, concluded that MCL 257.225(2) does not prohibit the obstruction of a registration plate by a towing ball and reversed. We respectfully disagree with the Court of Appeals and reverse its judgment. For the reasons set forth below, we conclude that defendant violated MCL 257.225(2) and therefore that the police officers had a lawful basis on which to stop him. The trial court accordingly was correct to deny defendant’s motion to suppress. I. FACTS AND HISTORY In the early morning of October 12, 2012, defendant was driving his Ford Eanger pickup truck on West Hackley Avenue in Muskegon Heights. Muskegon County Sheriff Deputies James Ottinger and Jason Van Andel were on a routine patrol and started following defendant. Ottinger testified that the officers’ decision to follow defendant was not based on any particular suspicious activity. They nonetheless decided to check his truck’s registration plate against the Law Enforcement Information Network (LEIN), a statewide computerized information system, which, according to Ottinger, is commonly done on patrol. According to Van Andel, a towing ball on the truck’s bumper partially obstructed his view of the truck’s registration plate; however, from his vantage point, the officer surmised that the plate read either CHS 5818 or CHS 6818. He entered CHS 5818 into LEIN, which returned as the registration-plate number for a 2007 Chevrolet Equinox rather than a Ford Ranger. Both officers testified that they decided to stop defendant for having an obstructed registration plate. The officers then turned on their overhead lights, and defendant promptly pulled over. The officers approached defendant’s pickup truck and could then see that the plate read CHS 6818 rather than CHS 5818. While talking with defendant, the officers smelled burnt marijuana coming from the vehicle. A vehicle search revealed contraband, including marijuana, cocaine, and a handgun, leading to defendant’s being criminally charged with possession of cocaine, possession of marijuana, and carrying a concealed weapon. In the trial court, defendant moved to suppress the contraband. He argued that he had been unlawfully seized under the Fourth Amendment of the United States Constitution and article 1, § 11 of the Michigan Constitution because the officers lacked a “reasonable suspicion” of an offense supporting the traffic stop. Therefore, he proceeded to argue, the ensuing discov ery of contraband had been the fruit of an illegal seizure. Following a hearing, the trial court determined that the towing ball on defendant’s truck had obstructed the officers’ view of the truck’s registration plate and thus concluded that the stop had been properly grounded on defendant’s violation of MCL 257.225(2). Accordingly, it denied defendant’s motion to suppress. The Court of Appeals granted defendant’s motion for interlocutory appeal and reversed in a split decision. People v Dunbar, 306 Mich App 562; 857 NW2d 280 (2014). In the lead opinion, Judge SHAPIRO asserted that while the officers “had difficulty reading one of the seven characters on the pickup’s license plate due to the presence of a trailer towing ball attached to the rear bumper,” “the circumstances observed by the officers did not constitute a violation” of MCL 257.225(2) because the plate itself was clean and legible and the “statute makes no reference to trailer hitches, towing balls, or other commonly used towing equipment. . . .” Id. at 565-566 (opinion by SHAPIRO, J.). Judge O’CONNELL concurred in the result and wrote separately to state that the statute is “ambiguous” and “unconstitutionally vague” because it “casts a net so wide that it could be construed to make ordinary car equipment illegal, including equipment like bicycle carriers, trailers, and trailer hitches.” Id. at 566-567 (opinion by O’CONNELL, J.). He thus read MCL 257.225(2) “to require only that the license plate itself be maintained free from materials that obscure the registration information and that the plate itself he in a clearly legible condition.” Id. at 567. Judge METER dissented and contended that defendant’s obstructed registration plate provided the officers with a lawful basis on which to stop defendant. Id. at 569-570 (opinion by METER, P.J.). The prosecutor applied in this Court for leave to appeal, and we ordered under MCR 7.302(H)(1) that oral argument be held to address whether to grant leave or take other action. People v Dunbar, 497 Mich 978 (2015). The parties were directed to brief “whether the license plate affixed to the defendant’s vehicle violated MCL 257.225(2) where it was obstructed by a towing ball, thereby permitting law enforcement officers to conduct a traffic stop of the defendant’s vehicle.” Id. We heard oral argument on November 4, 2015, and now consider the prosecutor’s application. In lieu of granting leave to appeal, we reverse the Court of Appeals’ judgment. II. STANDARD OF REVIEW In considering a trial court’s ruling on a motion to suppress, we review its factual findings for clear error and its interpretation of the law de novo. People v Tanner, 496 Mich 199, 206; 853 NW2d 653 (2014). III. ANALYSIS We review here the Court of Appeals’ determination that defendant did not violate MCL 257.225(2) when his truck’s registration plate was partially obstructed by a towing ball. If defendant violated this statute, the ensuing traffic stop was lawful. See MCL 257.742(1) (“A police officer who witnesses a person violating [the Michigan Vehicle Code, MCL 257.1 through MCL 257.923] . . . , which violation is a civil infraction, may stop [and temporarily] detain the person . . . .”); MCL 257.225(7) (“A person who violates this section is responsible for a civil infraction.”); see also Whren v United States, 517 US 806, 810; 116 S Ct 1769; 135 L Ed 2d 89 (1996) (“[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”). When interpreting a statute, we seek “to ascertain the legislative intent that may be reasonably inferred from the words expressed in the statute.” Epps v 4 Quarters Restoration LLC, 498 Mich 518, 529; 872 NW2d 412 (2015). We “give effect to every word, phrase, and clause and avoid an interpretation that would render any part of the statute surplusage or nugatory.” People v Miller, 498 Mich 13, 25; 869 NW2d 204 (2015). We interpret the text “according to the common and approved usage of the language.” MCL 8.3a. Unless we conclude that the statute is ambiguous, the Legislature is “presumed to have intended the meaning expressed” in the statute. People v Likine, 492 Mich 367, 387; 823 NW2d 50 (2012). A clear and unambiguous statute “must be enforced as written and no further judicial construction is permitted.” Gardner v Dep’t of Treasury, 498 Mich 1, 6; 869 NW2d 199 (2015). The provision of the statute at issue, MCL 257.225(2), regulates the placement and condition of registration plates: A registration plate shall at all times be securely fastened in a horizontal position to the vehicle for which the plate is issued so as to prevent the plate from swinging. The plate shall be attached at a height of not less than 12 inches from the ground, measured from the bottom of the plate, in a place and position which is clearly visible. The plate shall be maintained free from foreign materials that obscure or partially obscure the registration information, and in a clearly legible condition.[ ] This case concerns the second sentence of the provision, which directs that a registration plate “shall be attached ... in a place and position which is clearly visible.” The phrase “place and position” indicates that this sentence governs the location of the registration plate on a vehicle. This location must be “clearly visible,” meaning that the location where the plate is attached—and after attachment the plate itself —can be viewed without obstruction. MCL 257.225(2) accordingly and simply requires that the registration plate be attached where it can be seen without obstruction. Defendant argues that a clear-visibility requirement would be “absurd” if it imposed liability for an obstructing object (e.g., a building or pedestrian) or condition (e.g., snow or fog) outside a driver’s control. We note, however, that the instant violation was based not on an object or condition outside defendant’s control but on an object fully within his control—namely, a towing ball attached to his rear bumper. But in any event, defendant’s concern is misplaced; nothing in MCL 257.225(2) evinces the Legislature’s intention to impose liability on a person on the basis of conduct or circumstances outside his or her control. Instead, the statute requires a registration plate to “be attached . . . in a place and position which is clearly visible.” MCL 257.225(2). These words evince no intention to require any person to do anything other than configure his or her vehicle’s registration plate and surrounding attachments in a manner that ensures the unobstructed visibility of the plate. The Court of Appeals panel, in concluding that defendant did not violate MCL 257.225(2), examined the wrong part of the subsection. Rather than analyzing whether defendant violated the clear-visibility requirement of the subsection’s second sentence, the lead opinion and the concurring opinion analyzed only whether he violated the subsection’s third sentence, which requires that a registration plate “be maintained free from foreign materials that obscure or partially obscure the registration information, and in a clearly legible condition.” MCL 257.225(2). Focusing on whether the plate was “legible,” the lead opinion concluded that there was “no evidence that defendant’s plate was dirty, rusted, defaced, scratched, snow-covered, or otherwise not ‘maintained’ in legible condition.” Dunbar, 306 Mich App at 566 (opinion by SHAPIRO, J.). The concurring opinion apparently agreed with this conclusion. See id. at 567 (opinion by O’CONNELL, J.). A majority of the panel therefore concluded that defendant had not violated the statute. But even if the panel correctly concluded that the plate was “clearly legible” under the third sentence of MCL 257.225(2), it failed altogether to consider whether the plate was “clearly visible” under that subsection’s second sentence. These two sentences impose separate and distinct duties: the second sentence, by requiring that the plate be “clearly visible,” requires that the plate be attached where it will not be obstructed, and the third sentence requires that the plate itself “be maintained free from foreign materials that obscure or partially obscure the registration information, and in a clearly legible condition.” Quite clearly, the third sentence concerns an ongoing duty to maintain the plate so that it can be read, that is, to ensure that no foreign materials adhere to the plate and thus obscure the plate and registration information. Because one can comply with the third sentence by maintaining a legible plate yet still violate the second sentence by failing to attach the plate, legible though it may be, “in a place and position which is clearly visible,” the panel’s analysis was incomplete for not having considered whether defendant violated the second sentence. Having concluded that MCL 257.225(2) requires that a vehicle’s registration plate be attached where it can be seen without obstruction, we apply that under standing of the statute to the instant case to determine whether defendant violated the statute. The trial court found, on the basis of the testimony of the officers and pictures taken during the traffic stop, that the officers’ view of the truck’s plate was obstructed by the attached towing ball. Indeed, that finding is not challenged. Because MCL 257.225(2) prohibits an obstruction of a vehicle’s registration plate, defendant violated the statute. The officers’ stop of defendant thus was lawful, and the trial court properly denied defendant’s motion to suppress. IV. OBSERVATIONS As this case demonstrates, a towing ball, when attached to a vehicle in a way that obstructs a view of the vehicle’s registration plate, may subject a driver to a police stop, including the possibility of a citation and, if circumstances warrant, a search, seizure, or both. We are cognizant that Michiganders’ vehicles commonly have items such as trailer hitches and bicycle racks attached to them, and we accordingly recognize that under MCL 257.225(2) common conduct may lead to what some might consider harsh consequences. But the potentially broad reach of a statute by itself does not invest a judicial body with the authority either to revise that statute or to interpret it in a manner inconsistent with its language. We do not sit as the “legislators in chief’ of this state in order to correct statutes that may be viewed by some (or even by many) as “cumbersome,” “impractical,” or “inadequately precise.” See Lansing Mayor v Pub Serv Comm, 470 Mich 154, 163-164; 680 NW2d 840 (2004). Rather, the language of MCL 257.225(2) “compels a particular result,” id. at 164, and those desiring to alter this result must seek to do so “through those bodies authorized by our Constitution to undertake such decisions—typically the legislative branch,” AFT Mich v Michigan, 497 Mich 197, 215; 866 NW2d 782 (2015). We further note that MCL 257.225(2) is not rendered “ambiguous” or “vague” merely because “the statute casts a net so wide that it could be construed to make ordinary car equipment illegal.” Dunbar, 306 Mich App at 566 (opinion by O’CONNELL, J.). One may observe, for example, from common experience that many drivers on Michigan roads exceed speed limits, but we would not conclude from that observation alone that speed-limit laws are unenforceable, let alone “ambiguous” or “vague.” If the Legislature possesses the constitutional authority to enact a statute regulating the placement of registration plates, then it may do so regardless of the number of persons affected by the statute’s enforcement. Accordingly, when the people wish to argue “that a statute is unwise or results in bad policy,” those arguments “should be addressed to the Legislature.” Oakland Co Bd of Co Rd Comm’rs v Mich Prop & Cas Guaranty Ass’n, 456 Mich 590, 613; 575 NW2d 751 (1998) (quotation marks and citation omitted). This Court is simply not authorized to alter the meaning of MCL 257.225(2) on the ground that it might potentially encompass common conduct, and we accordingly decline to do so. V. CONCLUSION We conclude that the second sentence of MCL 257.225(2) requires a vehicle’s registration plate and surrounding attachments to be configured in such a manner that the plate is not partially or fully obstructed. The statute therefore prohibits a registration plate from being obstructed by an object attached to a vehicle. We further conclude that defendant violated MCL 257.225(2) because the towing ball attached to his truck partially obstructed the truck’s registration plate from the view of police officers following him. The officers thus lawfully stopped defendant and, after smelling burnt marijuana from within the vehicle, lawfully discovered contraband. In lieu of granting leave to appeal, we reverse the Court of Appeals’ judgment, reinstate the trial court’s denial of defendant’s motion to suppress the contraband, and remand this case to the trial court for further proceedings. Young, C.J., and Zahra, McCormack, Viviano, Bernstein, and Larsen, JJ., concurred with Markman, J. When asked why he had not attempted to enter CHS 6818 into LEIN, Van Andel testified merely that the decision to stop defendant was made upon learning that CHS 5818 was associated with a 2007 Chevrolet Equinox. The vehicle search itself has not been challenged. As amended by 1995 PA 129. Following the events giving rise to this case, the Legislature enacted 2014 PA 26, which amended MCL 257.225(2) by substituting “that” for “which” in the second sentence and striking the comma after “information” in the third sentence. Neither change affects our interpretation of the statute. The first sentence of MCL 257.225(2) is not implicated in this case because there is no evidence that the truck’s registration plate was not “securely fastened in a horizontal position.” Because we ultimately conclude that defendant violated the subsection’s second sentence, we need not decide whether he also violated its third sentence. Nonetheless, even if we assume that there was no such violation, it would not affect our determination that the second sentence was violated and therefore that the officers had probable cause to stop defendant’s vehicle. Defendant argues that MCL 257.225(2) requires the clear visibility of the registration plate’s “place and position” (i.e., its location) rather than expressly requiring the clear visibility of the plate. Nonetheless, because the plate is a thin sheet of metal, we see no effective distinction between the plate’s location and the plate itself or between the visibility of the plate’s location and the visibility of the plate itself. We note that this interpretation accords with the definitions in Merriam-Webster’s Collegiate Dictionary (11th ed) (stating that “clearly” means “in a clear manner,” which, incorporating the definition of “clear,” means in a manner “free from obstruction,” and that “visible” means “capable of being seen”). We interpret MCL 257.225(2) using the language of the statute. We note, however, that our interpretation accords with a reasonable view of the Legislature’s police power: requiring registration plates to be unobstructed certainly advances public safety by permitting witnesses to a hit-and-run motor-vehicle accident or police officers engaged in the investigation of criminal flight to observe the registration information of a fleeing vehicle or by enabling officers effecting a traffic stop to determine whether a driver has a violent criminal history posing some threat. We do not decide today whether MCL 257.225(2) is violated when a trailer hitch is, in fact, being used to tow a trailer and the combination of the hitch and the trailer obstructs the registration plate. We note that trailers are permitted under the statutory scheme, see MCL 257.721, and that trailers generally must have their own registration plates, see MCL 257.73; MCL 257.216; MCL 257.225. The prosecutor argues in the alternative that even if the officers misinterpreted MCL 257.225(2), their stop of defendant (and their ensuing discovery of contraband) was nonetheless lawful because, under Heien v North Carolina, 574 US _; 135 S Ct 530, 536; 190 L Ed 2d 475 (2014), a police officer’s reasonable suspicion supporting a traffic stop may rest on a “reasonable mistake of law.” Because we conclude that defendant violated MCL 257.225(2), we necessarily also conclude that the officers did not make a mistake of law, reasonable or otherwise, and therefore Heien is not pertinent. See, e.g., Mich Coalition of State Employee Unions v Michigan, 498 Mich 312, 331-332; 870 NW2d 275 (2015) (“[T]he legislative authority of the state ‘can. do anything which it is not prohibited from doing by the people through the Constitution of the State or the [Constitution of the] United States.’ ”) (citation omitted).
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By order of December 22, 2015, the application for leave to appeal the December 4, 2014 order of the Court of Appeals was held in abeyance pending the decision in Montgomery v Louisiana, cert gtd 575 US _; 135 S Ct 1546; 191 L Ed 2d 635 (2015). On order of the Court, the case having been decided on January 25, 2016, 577 US _; 136 S Ct 718; 193 L Ed 2d 599 (2016), the application is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the sentence of the Wayne Circuit Court on the defendant’s first-degree murder conviction, and we remand this case to the trial court for resentencing pursuant to MCL 769.25 and MCL 769.25a. See Montgomery, supra, and Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012). We do not retain jurisdiction.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Berrien Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Muskegon Circuit Court for the appointment of substitute appellate counsel in light of Halbert v Michigan, 545 US 605; 125 S Ct 2582; 162 L Ed 2d 552 (2005). Based on our review of the record, after the circuit court granted original appointed appellate counsel’s motion to withdraw, it erred in failing to appoint substitute appellate counsel when the defendant’s original appellate counsel did not accompany his motion to withdraw with legal analysis “referring to anything in the record that might arguably support the appeal,” and the trial court failed to make a finding whether the “case is wholly frivolous.” Anders v California, 386 US 738, 744; 87 S Ct 1396, 1400; 18 L Ed 2d 493 (1967); see also MCR 7.211(C)(5) and AO 2004-6, Standard 5. On remand, substitute appellate counsel, once appointed, may file an application for leave to appeal in the Court of Appeals, and/or any appropriate postconviction motions in the circuit court, within six months of the date of the circuit court’s order appointing counsel. The motion to reissue judgment and appoint counsel is denied as moot. We do not retain jurisdiction.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for reconsideration of the defendant’s April 14, 2015 delayed application for leave to appeal under the standard applicable to direct appeals. The defendant’s former appellate attorney failed to timely file in the trial court a motion to withdraw as counsel and failed to file in the Court of Appeals, on direct review, a delayed application for leave to appeal within the deadlines set forth in MCR 7.205(G)(3). Accordingly, the defendant was deprived of his direct appeal as a result of constitutionally ineffective assistance of counsel. See Roe v Flores-Ortega, 528 US 470, 477; 120 S Ct 1209; 145 L Ed 2d 985 (2000); Peguero v United States, 526 US 23, 28; 119 S Ct 961; 143 L Ed 2d 18 (1999). The motion to remand to the trial court is denied. We do not retain jurisdiction.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate Part V of the judgment of the Court of Appeals, and we remand this case to that court. On remand, while retaining jurisdiction, the Court of Appeals shall remand this case to the Wayne Circuit Court for further proceedings to determine whether the defendants were prejudiced by the plaintiffs’ delay in bringing their action. At the conclusion of those proceedings, the circuit court shall forward the record and its findings to the Court of Appeals, which shall then reconsider its decision that the plaintiffs’ claims for injunctive and declaratory relief were barred by the equitable doctrine of laches. See Lothian v City of Detroit, 414 Mich 160, 168 (1982). We do not retain jurisdiction.
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ZAHRA, J. In these cases, we are called upon to interpret a provision of the Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq., commonly referred to as the motor vehicle exception to governmental immunity, MCL 691.1405. The statute provides, in relevant part, that “[g]overnmental agencies shall be liable for bodily injury . . . resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner .. . ,” Specifically, we must address whether the phrase “liable for bodily injury” allows for recovery of economic damages, such as work-loss damages, and noneconomic damages, such as pain and suffering or emotional distress damages. The Court of Appeals in Hannay v Dep’t of Transp concluded that economic damages are compensable under the motor vehicle exception, while the Court of Appeals in Hunter v Sisco concluded that noneconomic damages are not compensable under this exception. We conclude that the phrase “liable for bodily injury” contained in the motor vehicle exception means legally responsible for damages flowing from a physical or corporeal injury to the body. More simply, “bodily injury” is merely the category of harm for which governmental immunity from tort liability is waived under MCL 691.1405 and for which damages that naturally flow are compensable. Moreover, the restrictions on damages recoverable in third-party tort actions involving motor vehicle accidents set forth in MCL 500.3135 of the no-fault act, MCL 500.3101 et seq., apply to cases permitted by the waiver of governmental immunity provided for in the motor vehicle exception. We therefore hold that a plaintiff may bring a third-party tort action for economic damages, such as work-loss damages, and noneconomic damages, such as pain and suffering or emotional distress damages, against a governmental entity if the requirements of MCL 500.3135 have been met. Because we conclude that work-loss damages are compensable under the motor vehicle exception, we must also address a second issue presented in Hannay: whether the facts as found were sufficient to satisfy the statutory language defining work-loss damages with respect to plaintiffs claim of work loss as a dental hygienist. Plaintiff, a 22-year-old employed in a dental office, aspired to be a dental hygienist. Plaintiff had previously applied for admission to a dental hygienist program at Lansing Community College (LCC), but she was not admitted to the program. Plaintiff intended to enhance her application and reapply to the program, but she had not been accepted at the time of her injury. Her employer and his wife, a hygienist in his office, testified that plaintiff would have gained admission to the program and that they would have employed plaintiff as a hygienist after she completed her education and obtained her license. Notwithstanding this testimony, we conclude that it is simply too tenuous a proposition to conclude that the work-loss damages in dispute were a legal and natural consequence of the tortious conduct. Instead, these damages are contingent and speculative, rendering plaintiffs claim for work-loss damages barred under Michigan law to the extent that her claim is based on potential wages as a dental hygienist. In Hannay we affirm the Court of Appeals’ holding with respect to the type of damages recoverable for bodily injury under the motor vehicle exception to governmental immunity, MCL 691.1405, but we reverse the Court of Appeals’ holding that plaintiff presented sufficient evidence to support her claim for work-loss damages as a dental hygienist. In Hunter we reverse the Court of Appeals’ holding with respect to the type of damages recoverable for bodily injury under the motor vehicle exception to governmental immunity, MCL 691.1405. We remand both cases to the respective trial courts for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY A. HANNAY- This matter arises from a February 13, 2007 motor vehicle accident involving a vehicle driven by plaintiff Heather Hannay and a salt truck owned by defendant Michigan Department of Transportation (MDOT) and driven by MDOT’s employee, Brian Silcox. Silcox failed to stop at a stop sign, and the salt truck collided with plaintiffs vehicle. Plaintiff alleged that Silcox and MDOT, as Silcox’s employer and the owner of the salt truck, were hable for damages caused by Silcox’s negligence. Plaintiff alleged injuries to her shoulders, neck, spine, back, head, chest, arms, knees, and other internal and external injuries to her body. Plaintiff claimed all economic damages compensable under the no-fault act, but specifically alleged allowable expenses and work loss in excess of the statutoiy limitations. MDOT raised governmental immunity as an affirmative defense. Following a bench trial, the trial court concluded that MDOT was liable for work-loss damages exceeding the statutory limitations under the no-fault act and that plaintiff was entitled to work-loss damages as a dental hygienist earning $28 per hour. In reaching its conclusion, the court found that it was “more likely than not” that plaintiff would “have been admitted into the Dental Hygienist program at LCC,” that it was “more likely than not [that she would] have successfully completed the program,” and that plaintiff had proven part-time, but not full-time, employment of three days a week. The Court of Appeals affirmed, concluding that the trial court did not err by awarding plaintiff economic damages and that the trial court’s factual findings supported the calculation of plaintiffs work-loss award. Regarding the trial court’s conclusion that work-loss damages were recoverable against a governmental entity in light of the motor vehicle exception, the Court of Appeals held that “the bodily injury that must be incurred to maintain an action against a governmental entity and the items of damages recoverable from those injuries are separate and distinct from one another.” Thus, the panel concluded that “work-loss benefits .. . that exceed the statutory personal protection insurance benefit maximum pursuant to MCL 500.3135(3) are awardable against governmental entities . . . .” The panel characterized work-loss damages as “items of damages that arise from the bodily injuries suffered by plaintiff,” and explained that “[t]o hold otherwise would conflate the actual bodily-injury requirement for maintaining a motor vehicle cause of action against a governmental entity with the types of damages recoverable as a result of the bodily injury.” B. HUNTER This matter arises from a July 20, 2009 motor vehicle accident involving plaintiff Harold Hunter, Jr., and a dump truck owned by defendant City of Flint Transportation Department (Flint) and driven by Flint’s employee, defendant David Sisco. Flint’s vehicle sideswiped plaintiffs vehicle. Plaintiff sued Flint as the employer of Sisco and owner of the dump truck and independently for negligent entrustment of a motor vehicle. Plaintiff alleged that the injuries he suffered amounted to a serious impairment of a bodily function, a permanent and serious disfigurement, and a serious neurological defect (closed-head injury). According to plaintiff, he suffered injuries to his spine as a result of the accident. Plaintiff alleged noneconomic damages, namely, pain and suffering, as well as shock and emotional damages. Flint raised governmental immunity as an affirmative defense. Flint filed a motion for summary disposition under MCR 2.116(C)(7) and (10), asserting that plaintiff could not succeed in a claim against Flint because the damages he sought were not compensable under the motor vehicle exception to governmental immunity and that plaintiff failed to establish that he suffered a threshold injuxy under the no-fault act. Flint’s position was that because plaintiffs no-fault provider was liable for economic damages under the no-fault act, and because the motor vehicle exception to governmental immunity does not allow for recovery of noneconomic damages, the claim against Flint should be dismissed. The trial court denied Flint’s motion for summary disposition, concluding that “bodily injury” encompasses noneconomic damages associated with bodily injury and finding that there was a genuine issue of material fact regarding whether plaintiff suffered a serious impairment of a bodily function that was caused by the accident. The Court of Appeals reversed the trial court’s denial of the motion for summary disposition in part, holding that noneconomic damages “are precluded under MCL 691.1405 because a governmental agency may only be liable for ‘bodily injury’ and ‘property damage,’ ” and noneconomic damages “do not constitute physical injury to the body and do not fall within the motor vehicle exception.” Plaintiff filed a motion for reconsideration in light of the Court of Appeal’s decision in Hannay, but the panel denied the motion. II. STANDARD OF REVIEW The meaning of the phrase “liable for bodily injury” is an issue of statutory interpretation, which this Court reviews de novo. The role of this Court in interpreting statutory language is to “ascertain the legislative intent that may reasonably be inferred from the words in a statute.” In doing so, “[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.” This Court has explained: When construing a statute, we consider the statute’s plain language, and we enforce clear and unambiguous language as written. While terms must be construed according to their plain and ordinary meaning, words and phrases as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.[ ] “[W]ords and phrases used in an act should be read in context with the entire act and assigned such meanings as to harmonize with the act as a whole,” and “a word or phrase should be given meaning by its context or setting.” While this Court reviews a trial court’s factual findings, such as those used to calculate a damages award, for clear error, we review de novo the applicability of those facts to the law. Moreover, when a party files suit against a governmental agency, it is the burden of that party to plead “his or her claim in avoidance of governmental immunity.” A party can bring a motion for summary disposition under MCR 2.116(C)(7), as was the case in Hunter, on the ground that the claim is barred by governmental immunity. Plaintiff Hunter also filed a motion for summary disposition under MCR 2.116(0(10), which is appropriate when, “[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.” This Court reviews de novo decisions regarding motions for summary disposition. III. ANALYSIS A. THE GOVERNMENTAL TORT LIABILITY ACT Sovereign immunity and governmental immunity, while related concepts, are not synonymous. “Sovereign immunity refers to the immunity of the state from suit and from liability, while governmental immunity refers to the similar immunities enjoyed by the state’s political subdivisions.” As we recently explained in In re Bradley Estate, the GTLA replaced and was preceded by Michigan jurisprudence, dating back to 1837, “recognizing] the preexisting common-law concept of sovereign immunity, which immunizes the ‘sovereign’ state from all suits to which the state has not consented, including suits for tortious acts by the state.” MCL 691.1407(1) codifies this common-law sovereign immunity concept and “limits a governmental agency’s exposure to tort liability.” However, the GTLA not only provides immunity for the state and its agencies, like defendant MDOT in Hannay, but also provides immunity for the state’s political subdivisions, such as defendant Flint in Hunter. We explained in Robinson v Lansing that “[i]n Michigan, governmental immunity was originally a common-law doctrine that protected all levels of government.” However, this Court, in 1961, “abolished common-law governmental immunity with respect to municipalities.” The Legislature reacted by enacting the GTLA in 1964, “restoring immunity for municipalities and preserving this protection for the state and its agencies.” The GTLA provides six exceptions to gov ernmental immunity, one of which is the motor vehicle exception—the subject of these cases. B. THE MOTOR VEHICLE EXCEPTION The motor vehicle exception to governmental immunity, MCL 691.1405, provides: Governmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner, as defined in Act No. 300 of the Public Acts of 1949, as amended, being sections 257.1 to 257.923 of the Compiled Laws of 1948. This provision has remained unchanged from its original phrasing when enacted as part of the GTLA in 1964. The heart of our inquiry is the interpretation of the phrase “liable for bodily injury,” which contains two key components: (1) “liable for” and (2) “bodily injury.” 1. “LIABLE FOR” Our recent decision in Bradley Estate sheds light on the proper interpretation of the phrase “liable for,” though the motor vehicle exception was not at issue in that case. Instead, we interpreted the phrase “tort liability ” found in the GTLA’s broad grant of immunity, MCL 691.1407(1), which grants immunity to governmental entities from “tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.” Specifically, we were called on to decide whether a particular cause of action sought to impose “tort liability” within the meaning of MCL 691.1407(1), thus, triggering governmental immunity pursuant to that provision. We concluded that “ ‘tort’ as used in MCL 691.1407(1) is a noncontractual civil wrong for which a remedy may be obtained in the form of compensatory damages.” Looking at the phrase as a whole, we explained: Our analysis, however, requires more. MCL 691.1407(1) refers not merely to a “tort,” nor to a “tort claim,” nor to a “tort action,” but to “tort liabilityThe term “tort,” therefore, describes the type of liability from which a governmental agency is immune. As commonly understood, the word “liability,” refers to liableness, i.e., “the state or quality of being liable.” To be “liable” means to be “legally responsible[.]” Construing the term “liability” along with the term “tort,” it becomes apparent that the Legislature intended “tort liability” to encompass legal responsibility arising from a tort. We therefore hold that “tort liability” as used in MCL 691.1407(1) means all legal responsibility arising from a noncontractual civil wrong for which a remedy may be obtained in the form of compensatory damages.[ ] Because this Court concluded that “liable” means “legally responsible,” our interpretation of “tort liability” in MCL 691.1407(1) informs how to interpret the phrase “liable for” in the motor vehicle exception. We see no reason why this Court’s prior analysis of the word “liability,” which stems from the word “liable,” should not likewise apply in this case, particularly given that the phrases “tort liability” and “liable for” are contained within the same statute—the GTLA. Thus, the phrase “liable for bodily injury” means legally responsible for bodily injury. 2. “BODILY INJURY” We interpreted the phrase “bodily injury” in Wesche v Mecosta Co Rd Comm, specifically within the context of the motor vehicle exception. The central issue in Wesche was “whether the motor vehicle exception . .. authorizes a claim for loss of consortium against a governmental agency.” In analyzing the language of the motor vehicle exception, we stated: “This language is clear: it imposes liability for ‘bodily injury’ and ‘property damage’ resulting from a governmental employee’s negligent operation of a government-owned motor vehicle.” Because the GTLA does not define “bodily injury,” this Court resorted to dictionary definitions, stating: The word “bodily” means “of or pertaining to the body” or “corporeal or material, as contrasted with spiritual or mental.” Random House Webster’s College Dictionary (2000). The word “injury” refers to “harm or damage done or sustained, [especially] bodily harm.” Id. Thus, “bodily injury” simply means a physical or corporeal injury to the body. It is beyond dispute that a loss of consortium is not a physical injury to a body. A claim for loss of consortium is simply one for loss of society and companionship.. .. Thus, because loss of consortium is a nonphysical injury, it does not fall within the categories of damage for which the motor-vehicle exception waives immunity![ ] We see no reason to deviate from our prior analysis. Thus, because we have interpreted “bodily injury” to mean “a physical or corporeal injury to the body,” “liable for bodily injury” means legally responsible for a physical or corporeal injury to the body. 3. “LIABLE FOR BODILY INJURY” Our final consideration in looking at the phrase “liable for bodily injury” as a whole is to determine the scope of the liability to which the government is exposed under the motor vehicle exception. Essential to this inquiry is the fundamental difference between an injury and the damages that arise from that injury. This Court’s decision in Henry is instructive for determining the scope of liability in that it delineates this distinction. There, we set forth the traditional elements of a negligence action—“(1) duty, (2) breach, (3) causation, and (4) damages” —but explained that “it has always been implicit in this analysis that in order to prevail, a plaintiff must also demonstrate an actual injury to person or property.” We then made clear that “such injury constitutes the essence of a plaintiffs claim,” and that “injury” and “damages” are distinct from one another, explaining: While the courts of this state may not have always clearly articulated this injury requirement, nor finely delineated the distinction between an “injury” and the “damages” flowing therefrom, the injury requirement has always been present in our negligence analysis. It has simply always been the case in our jurisprudence that plaintiffs alleging negligence claims have also shown that their claims arise from present physical injuries. We are not aware of any Michigan cases in which a plaintiff has recovered on a negligence theory without demonstrating some present physical injury. Thus, in all known cases in Michigan in which a plaintiff has satisfied the “damages” element of a negligence claim, he has also satisfied the “injury” requirement.[ ] Thus, “damages” and “injury” are not one and the same—damages flow from the injury. In light of this Court’s prior interpretation of “tort liability” in Bradley Estate, this Court’s interpretation of “bodily injury” in Wesche, and this Court’s delineation of the difference between “injury” and “damages” in Henry, “liable for bodily injury” in the present case means legally responsible for damages flowing from a physical or corporeal injury to the body. Stated differently, “bodily injury” is simply the category of harm (i.e., the type of injury) for which the government waives immunity under MCL 691.1405 and, thus, for which damages that naturally flow are compensable. Therefore, the legal responsibility that arises from “bodily injury” is responsibility for tort damages that flow from that injury. This conclusion is supported by the fact that the GTLA generally grants immunity from “tort liability,” and to the extent that this immunity is waived, the resulting liability, logically, is liability for tort damages. It is a longstanding principle in this state’s jurisprudence that tort damages generally include damages for all the legal and natural consequences of the injury (i.e., the damages that naturally flow from the injury), which may include damages for loss of the ability to work and earn money, as well as pain and suffering and mental and emotional distress damages. For example, in Sherwood v Chicago & WM R Co, this Court approved of a jury instruction that stated: In estimating the compensatory damages in cases of this character, all the consequences of the injury, future as well as past, are to be taken into consideration, including the bodily pain, which is shown by the proofs to be reasonably certain to have naturally resulted from the injury. The injured party, when entitled to recover, should be awarded compensation for all the injuries, past and prospective. These are intended to include and embrace indemnity for actual nursing and medical expenses; also for loss of power, or loss of capability to perform ordinary labor, or capacity to earn money, and reasonable satisfaction of physical powers. The elements of damages which the jury are entitled to take into account consist of all effects of the injury complained of, consisting of personal inconvenience, the sickness which the plaintiff endured, the loss of time, all bodily and mental suffering, impairment of capacity to earn money, the pecuniary expenses, the disfigurement or permanent annoyance which is liable to be caused by the deformity resulting from the injury; and, in considering what would be a just sum in compensation for the sufferings or injury, the jury are not only at liberty to consider the bodily pain, but the mental suffering, anxiety, suspense, and fright may be treated as elements of the injury for which damages, by way of compensation, should be allowed. [Emphasis added.] Thus, damages for both a loss of the ability to work and earn money as well as pain, suffering, and emotional distress have long been understood as consequences of an injury for which damages are compensable. Additionally, in Beath v Rapid R Co, this Court concluded that “[t]he plaintiff was not confined in her recovery to damages sustained by reason of physical pain and anguish suffered, but had the right to recover for the mental pain and anxiety she was compelled to undergo by reason of the injuries sustained,” because “the shame and mortification which the plaintiff had suffered by being obliged to use crutches” “was one of the elements of damages which might naturally flow from the injury.” Moreover, recent caselaw of this Court reiterates this longstanding principle. For example, in Price v High Pointe Oil Co, Inc, we noted the general rule regarding recovery of damages in a tort action recognized in Sutter v Biggs that “the tort-feasor is liable for all injuries resulting directly from his wrongful act, whether foreseeable or not, provided the damages are the legal and natural consequences of the wrongful act, and are such as, according to common experience and the usual course of events, might reasonably have been anticipated.” This body of caselaw collectively demonstrates the longstanding principle that tort damages generally include the damages that naturally flow from the injury, which may include both economic damages, such as damages incurred due to the loss of the ability to work and earn money, as well as noneconomic damages, such as pain and suffering and mental and emotional distress damages. As indicated by the Hannay Court of Appeals panel, concluding that “bodily injury” does not include dam ages naturally flowing from that injury would conflate the requirement of a bodily injury (i.e., the injury requirement recognized in Henry) with the items of damages that are recoverable as a result of that injury (i.e., the damages that naturally flow from the bodily injury). Thus, the statutory language of MCL 691.1405 does not support a conclusion that the Legislature intended to restrict liability to certain items of damages resulting from a bodily injury. Instead, the language only indicates that the Legislature intended to restrict the categories of injury for which the tort damages that naturally flow are compensable. We therefore hold that the phrase “liable for bodily injury” within the motor vehicle exception means that a plaintiff who suffers a bodily injury may recover for items of tort damages that naturally flow from that physical or corporeal injury to the body, which may include both economic and non-economic damages. As discussed later in this opinion, however, the scope of these damages is limited by the no-fault act. 4. “BODILY INJURY” IS A TERM OF ART IN MICHIGAN JURISPRUDENCE Our analysis interpreting the phrase “liable for bodily injury” gains further support from our state’s history of governmental-immunity legislation, which indicates that “bodily injury” is a term of art used by the Legislature in the context of governmental immunity to refer to a category of injury for which damages that naturally flow are compensable, as long as those damages are properly pleaded. As a legal term of art, “bodily injury” is a technical phrase that has “acquired a peculiar and appropriate meaning in the law” and, therefore, “shall be construed and understood according to such peculiar and appropriate meaning.” This phrase appeared in the context of governmental immunity in 1861 in the first version of the highway exception. Public Act 197 of 1861 provided [t]hat any person or persons sustaining bodily injury upon any of the public highways in this State, by reason of neglect to keep in repair any bridge or culvert, by any township or corporation whose duty it is to keep such bridge or culvert in repair, such township or corporation shall be liable to, and shall pay to the person or persons so injured or disabled, just damages, to be recovered in an action of trespass on the case, before any court of competent jurisdiction.[ ] The 1885 and 1887 versions of the highway exception added sidewalks to the list of structures for which there was a duty to keep in repair. Therefore, as far back as 1861, the phrase “bodily injury” was used by the Legislature to connote a category of injury for which damages—specifically, “just damages”—were compensable. Our decisions implicating these early versions of the highway exception urge a consistent interpretation in this case. For example, regarding damages because of an inability to work, this Court’s decision in Moore v Kalamazoo is instructive. In that case, the plaintiff was injured due to a defective sidewalk, and the trial court instructed that the jury “should take into account her past earnings. . . during the time that she has already been injured, and the time that you find, from the evidence, that she will remain incapable of earning anything in the future . . . .” This Court concluded that the allegations were sufficient to warrant admission of the proofs of damages and the instruction given. This case made clear that the damages that were recoverable as a result of a bodily injury included damages resulting from an inability to work that flow from the injury, if properly alleged. In another example, this Court’s 1894 decision in Roberts v Detroit demonstrated that pain and suffering damages, like damages resulting from an inability to work, were recoverable for a bodily injury in the context of the highway exception. The plaintiff sought loss-of-consortium damages from the city of Detroit that resulted from injuries his wife incurred due to falling on a defective sidewalk. The issue was whether the highway exception applied to provide the plaintiff a cause of action in light of the fact that it was the plaintiffs wife who was physically injured, rather than the plaintiff himself. This Court stated, “[s]o far as [the highway exception] is concerned, it limits the liability to cases of bodily injury,” and concluded that: The plaintiffs case does not fall within [the highway-exception] (1) because he has no right to recover for the bodily injury—i.e., pain and suffering, etc—of another; (2) because the statute in terms limits the recovery to the person so injured or disabled/[ ] It is clear from Roberts that had the plaintiff, rather than his wife, suffered a bodily injury, damages naturally flowing from that injury would have been recoverable under the highway exception, including damages for “pain and suffering.” Further, this case demonstrates that while damages that naturally flowed from the injury were compensable, the person seeking such damages must have had a bodily injury. More generally, this Court’s decision in Hall v City of Cadillac demonstrated that damages that were the natural consequence of a bodily injury were recoverable. Hall involved a city’s failure to keep a sidewalk in reasonable repair, which resulted in bodily injury to the plaintiff, and this Court reviewed the instructions to the jury. This Court concluded in relevant part that the trial court properly instructed the jury that “damages for the injury suffered and its natural consequences were recoverable, up to the time of trial, together with such prospective damages of like character as were reasonably probable .. . .” Thus, damages that were a natural consequence of the bodily injury were recoverable. In light of the foregoing, by the time the phrase “bodily injury” appeared in the 1964 version of the motor vehicle exception, that phrase long had a settled meaning in Michigan law. “Bodily injury” was understood to be a category of injury for which damages that were the natural consequence flowed, including both damages resulting from an inability to work, as well as pain and suffering, so long as those damages were properly pleaded. 5. THE HUNTER COURT’S RELIANCE ON WESCHE IS MISPLACED The Court of Appeals in Hunter relied in part on Wesche’s definition of “bodily injury” in concluding that because noneconomic damages do not constitute a physical injury, such damages are not compensable under the motor vehicle exception. The panel first looked to Wesche and agreed with this Court’s conclusion that the term “liable for bodily injury” does not create a threshold requirement, explaining, “[h]ad the Legislature intended to simply create a threshold that, once established, would permit noneconomic or emotional damages, it would have done so explicitly .. . .” The panel determined that the Wesche definition of “bodily injury” was correct, and based on that definition, concluded that damages for pain and suffering as well as shock and emotional-distress damages do not constitute a “bodily injury” that is compensable under the motor vehicle exception. We agree with the Hunter panel only to the extent that it concluded that Wesche correctly defined “bodily injury.” We concluded in Wesche that the motor vehicle exception does not waive governmental immunity for loss-of-consortium claims, reasoning that “a loss of consortium is not a physical injury to a body,” and while “a loss-of-consortium claim is derivative of the underlying bodily injury, it is nonetheless regarded as a separate cause of action and not merely an item of damages.” We concluded that the motor vehicle exception “does not state or suggest that governmental agencies are liable for any damages once a plaintiff makes a threshold showing of bodily injury or property damage.” Unlike provisions of the no-fault act that create a statutory threshold, such as MCL 500.3135(1), MCL 691.1405 “contains no such language.” Instead, “[i]t merely provides that governmental agencies ‘shall be liable for bodily injuiy and property damage’ and says nothing to suggest that a separate cause of action, such as one for loss of consortium, may be asserted once a threshold of ‘bodily injury’ has been met.” For these reasons, this Court held “that a loss of consortium is not a ‘bodily injuiy’ ” and therefore, governmental entities are entitled to governmental immunity for loss-of-consortium claims. We disagree with the Hunter panel’s construction of Wesche because it conflates injury with damages. We stated in Wesche that “[t]he waiver of immunity is limited to two categories of damage: bodily injury and property damage.” Notably, the word “damage” in the singular has a very different meaning than the plural word “damages.” Black’s Law Dictionary defines “damage” as “[l]oss or injury to person or property < actionable damage resulting from negligence>,” and “damages” as “[m]oney claimed by, or ordered to be paid to, a person as compensation for loss or injuiy <the plaintiff seeks $8,000 in damages from the defendant >.” The Court of Appeals in Hunter ostensibly read the word “damage” in our opinion in Wesche to mean “damages,” which was an error. Moreover, our decision in Wesche focused on the fact that a loss of consortium does not constitute an “item of damages” because it is not a claim for bodily injury. Thus, it can be inferred from our decision that items of damages naturally flowing from a bodily injury are compensable. Our conclusion in Wesche that a bodily injury is not a threshold requirement that, once met, permits recovery of all potential damages and that, instead, a plaintiff seeking damages for a bodily injury must have actually suffered a bodily injury, is consistent with this Court’s decision in Roberts: The Roberts decision made clear that a plaintiff cannot seek damages for a bodily injury when the requested damages resulted from the bodily injury of another. We therefore reaffirm that “bodily injury” in the motor vehicle exception is not a threshold requirement that opens all doors of potential liability for tort damages; rather, it is a category of injury for which items of tort damages that naturally flow are available, as confined by the limitations of the no-fault act. 6. DAMAGES COMPENSABLE UNDER THE MOTOR VEHICLE EXCEPTION Our analysis, however, does not end with our interpretation of the phrase “liable for bodily injury” within the motor vehicle exception. While governmental entities are legally responsible for damages naturally flowing from a physical or corporeal injury to the body under the language of the motor vehicle exception, this liability is limited by the no-fault act, which generally abrogates “tort liability arising from the ownership, maintenance, or use within this state of a motor vehicle,” unless the damages come within an enumerated exception. As we explained in Hardy v Oakland Co, “the restrictions set forth in the no-fault act control the broad statement of liability found in the immunity statute.” Thus, to the extent that the no-fault act narrows the damages available in a third-party tort action through its general abolition of tort liability and provision of certain enumerated exceptions, those restrictions likewise apply when the tortfeasor is a governmental entity. Relevant to the present cases, MCL 500.3135(1), (2), and (3)(b) allow third-party tort actions for noneconomic damages if the “death, serious impairment of body function, or permanent serious disfigurement” threshold is met, while MCL 500.3135(3)(c) allows for third-party tort actions for certain kinds of economic damages, specifically “[d]amages for allowable expenses, work loss, and survivor’s loss ... in excess of the daily, monthly, and 3-year limitations contained in” the sections applicable to those three types of no-fault benefits. Therefore, we hold that a plaintiff may bring a third-party tort action for economic damages, such as work-loss damages, and noneconomic damages, such as pain and suffering or emotional distress damages, against a governmental entity if the requirements under MCL 500.3135 have been met. In this respect, we affirm the Hannay panel’s conclusion that work-loss benefits that exceed the statutory maximum are available against a governmental entity, and we reverse the Hunter panel’s conclusion that noneconomic damages “do not fall within the motor vehicle exception.” C. HANNAY: WORK-LOSS DAMAGES AWARDED Because we have concluded that damages for work loss are compensable under the motor vehicle exception, we must now address whether the facts as found were sufficient to satisfy the statutory language defining work-loss damages with respect to plaintiffs claim of work loss as a dental hygienist. Damages in tort actions that are “[r] emote, contingent, or speculative” are not compensable because they are not in conformity with the general rule that a “tortfeasor is liable for all injuries resulting directly from his wrongful act,” as long as “the damages are the legal and natural consequences of the wrongful act, and are such as, according to common experience and the usual course of events, might reasonably have been anticipated.” This Court has elaborated on this point, stating: [T]o render a wrongdoer liable in damages in a tort action where the connection is not immediate between the injurious act and the consequences, such nearness in the order of events and closeness in the relation of cause and effect must subsist, so that the influence of the injurious act would predominate over that of other causes, and concur to produce the consequences or be traceable to those causes.[ ] This Court does not, however, “preclude recovery [of damages] for lack of precise proof” or “require a mathematical precision in situations of injury where, from the very nature of the circumstances, precision is unattainable,” particularly in circumstances in which the defendant’s actions created the uncertainty. The plaintiff bears the burden to prove the damages sought by a preponderance of the evidence. In addition to these overarching rules for recovery of damages in tort, we recognize that there is a distinction drawn between work loss and loss of earning capacity in the context of claims made under the no-fault act. This Court has made clear that while work-loss damages are compensable under the no-fault act, loss-of-earning-capacity damages are not. This distinction is derived from the statutory language of the no-fault act, specifically MCL 500.3107. MCL 500.3135(3)(c) allows for third-party tort actions for “[d]amages for allowable expenses, work loss, and survivor’s loss as defined in sections 3107 and 3110 in excess of the daily, monthly, and 3-year limitations contained in those sections.” (Emphasis added.) MCL 500.3107 defines “work loss” in the context of no-fault benefits, providing, in relevant part: (1) Except as provided in subsection (2), personal protection insurance benefits are payable for the following: (b) Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he or she had not been injured... ,[ ] Importantly, the statutory language requires that work-loss damages consist of lost income from “work an injured person would have performed.” We explained in MacDonald v State Farm that “work-loss benefits compensate the injured person for income he would have received but for the accident.” Thus, work-loss damages are only available if the accident was the “but for” cause—i.e., cause-in-fact—of the work loss. Indeed, this Court made clear in Ouellette v Kenealy that such economic damages “are recoverable in tort only ... for ‘actual’ work loss,” i.e., “actual loss of income from work an injured person would have performed if he had not been injured,” “when the loss of income exceeds the daily, monthly, and three-year limitations.” This Court has expressly recognized that in contrast to work-loss damages, loss of earning capacity damages are those arising from work that an injured person “could” have performed but for the injury. Thus, damages for work loss consist of wages that a person “would” have earned but for the accident, whereas loss-of-earning-capacity damages are wages a person “could” have earned but for the accident. In other words, work-loss damages compensate a plaintiff for the specific wages that he or she would have earned in light of the specific facts of the case, while loss-of-earning-capacity damages compensate a plaintiff for his or her loss of unrealized potential for earning income, i.e., for possible wages a plaintiff could have earned if he or she pursued potential opportunities, education, etc. Yet, “[w]ork-loss benefits are not necessarily restricted to a claimant’s wage at the time of the accident.” That “a claimant is working a lower paying part-time job at the time of the accident” does not preclude the plaintiff “from proving that he would have taken a higher paying full-time job had he not been injured in a car accident.” Ultimately, however, “claimants are left to their proofs.” In the context of assessing work-loss benefits under the no-fault act, this Court has made clear that work loss should not overcompensate a claimant by, for instance, “basting] his work loss, without any proof of actual loss, on the highest paying job he ever had”; instead, it is “intended to compensate claimants approximately dollar for dollar for the amount of wages lost because of the injury or disability.” Because work-loss damages are intended to replace the income a person would have received but for the accident, prior wages generally are the most relevant and reliable evidence for determining what a plaintiff actually would have earned had the accident not occurred. Only in certain circumstances may a plaintiff recover work-loss damages for wages he or she could not have earned before the accident, i.e., wages that are not based on the plaintiffs wage history. While the statute by its terms does not limit a plaintiffs work-loss award to the plaintiffs wages at the time of the accident, courts must be cautious in considering wages that the plaintiff could not have earned before the accident in calculating a work-loss award because of the risk that a calculation based on such wages will be contingent and speculative and, therefore, barred under Michigan law. Michigan caselaw provides some examples of circumstances under which it was appropriate to consider wages the plaintiff could not have earned before the subject accident in determining what wages a plaintiff would have earned but for the accident. In Gobler v Auto-Owners Ins Co, this Court interpreted a phrase contained in the survivor’s benefits provision of the no-fault act, MCL 500.3108, the language of which is analogous to MCL 500.3107, providing: [A] survivor’s loss . . . consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of the deceased’s death would have received for support during their dependency from the deceased if the deceased had not suffered the accidental bodily injury causing death and expenses .. . .[ ] The decedent in that case died on the day that he completed his final requirements for a forestry degree from Michigan State University, had applied for forestry positions, was awarded a degree posthumously, and received what amounted to a job offer six months after he died. The evidence presented also indicated that the decedent would have accepted the position. Thus, the evidence established that the decedent would have earned wages as an employee of the forestry service; but for his death, there was virtually nothing standing between the decedent and his earning the income at issue. This Court concluded that it was not convinced that the trial court had made a mistake in finding that the deceased “would have been employed by the forestry service had he survived the accident.” In Swartout v State Farm Mut, the Court of Appeals reversed the trial court’s decision to dismiss a plaintiffs claim for work-loss benefits. At the time of the accident, the plaintiff was to graduate from nursing school in two months, but because of her injuries, she was unable to complete what would have been her final semester. She was able to graduate the following year and obtain employment, but sought work-loss benefits because of the delay in her employment caused by the accident. The plaintiff submitted the following evidence: (1) an affidavit from her school stating that but for her being forced to withdraw due to the accident, she would have graduated on time and (2) an affidavit from a hospital stating that plaintiff would have been employed there no later than July 27, 1981, if she had received her degree on time, and identifying the rate of pay she would have received. The majority explained: [The] plaintiff... has alleged facts which, if believed, would establish the source of her employment, the exact date of employment and the exact wages that would have been received between July of 1981 and June of 1982. In other words, plaintiff has stated a claim for wages that would, rather than could, have been earned but for her injuries. We therefore conclude that plaintiffs claim should have survived defendant’s motion for summary disposition. [ ] The Court of Appeals majority concluded that “whether plaintiff would have received income but for her injuries should be left to the trier of fact,” as was the case in Gobler. Thus, when the evidence presented demonstrates that the wages at issue were inevitable but for the accident, a damages award based on such wages will not be barred as a matter of law on grounds of being contingent and speculative. Unlike the plaintiffs in Gobler and Swartout, however, plaintiff Hannay was not on the brink of graduating from her professional degree program—indeed, she had not yet been accepted into the dental hygienist program. Moreover, plaintiff Hannay’s application for admission was rejected twice, once on its merits. Conversely, in Gobler and Swartout, the plaintiffs had satisfied nearly every condition to employment. Plaintiffs situation is more akin to that of the plaintiff in Gerardi, a Court of Appeals case in which the plaintiff sought work-loss benefits because of a one-year delay in her nursing school studies caused by injuries she incurred in an automobile accident. The plaintiff still had one year of nursing school remaining at the time of her injury. The Court concluded that “[a] fair reading of the complaint reveals that the plaintiff is in fact alleging a loss of wages she could have earned in the future as a registered nurse, but for the delay in her studies,” i.e., loss-of-earning-capacity damages, reasoning, in part, that “plaintiff would not have been able to work as a registered nurse prior to her accident.” Plaintiff Hannay ostensibly pleaded her claim for damages as a claim for work-loss damages as a dental hygienist, and the trial court purported to award such damages. This was error. The evidence presented did not establish by a preponderance of the evidence that but for the accident, plaintiff Hannay ultimately would have earned wages as a dental hygienist. In his deposition testimony, Mark Johnston (the dentist plaintiff worked for as a dental assistant) indicated that plaintiff was “destined to work in a dental office” and was “well on her way to getting into the [dental hygienist] program . . . .” Similarly, in her deposition testimony, Mary Johnston (a longtime dental hygienist who worked with plaintiff, who had been an instructor at the school where plaintiff applied, and who administered licensing exams for dentists and dental hygienists) testified that she thought plaintiff “absolutely. . . would have been admitted into the program.” The Johnstons both indicated that they would have hired plaintiff as a hygienist in their office. Clearly, the Johnstons were convinced that plaintiff Hannay would be successful in achieving her long-held dream of becoming a dental hygienist. The operative question here is not whether these witnesses were credible —the operative question is what exactly did the evidence presented demonstrate? Did the evidence demonstrate that plaintiff Hannay would have earned wages as a dental hygienist but for her bodily injuries, or did it demonstrate merely that had she continued to apply herself and pursue the opportunity to become educated and licensed in that field she could have earned such wages, i.e., that she possessed a yet-unrealized potential for earning such wages? We recognize that there is some degree of uncertainty inherent in work-loss awards generally, but even assuming that the opportunity presented by the Johnstons did in fact constitute an offer of employment, the sheer number of conditions that were required to be satisfied before plaintiff could be employed by Dr. Johnston—namely, that plaintiff Hannay would have been accepted into the dental hygienist program, would have successfully completed the program, and would have passed the licensing exam—places this case outside the inherent uncertainty involved in work-loss claims. We conclude that these unsatisfied conditions render the award of work-loss damages under the no-fault act contingent and speculative in this case and, therefore, barred under Michigan law to the extent that these damages were based on plaintiffs potential employment as a dental hygienist. In short, “it is too tenuous a proposition to say that the element of damages in dispute,” namely, work-loss damages for loss of income as a dental hygienist, “is a legal and natural consequence of defendant’s wrongful act.” The Johnstons’ honestly held belief that plaintiff would have succeeded was simply not sufficient to prove that plaintiff would have satisfied the conditions necessary to earn wages as a dental hygienist, including the primary condition of being admitted into the dental hygienist program, a condition which neither they nor plaintiff had final control over. Accordingly, the facts as found by the trial court were not sufficient to satisfy the statutory language defining work-loss damages with respect to plaintiffs claim of work loss as a dental hygienist, namely that plaintiff would have earned income as a dental hygienist but for the accident. For these reasons, we reverse the Court of Appeals’ decision to affirm plaintiff Hannay’s work-loss damages award, and remand to the trial court for recalculation of the work-loss award consistent with this opinion. IV CONCLUSION In light of our holding that a plaintiff may bring a third-party tort action for both economic damages, such as work-loss damages, and noneconomic damages, such as pain and suffering or emotional distress damages, against a governmental entity if the requirements under MCL 500.3135 have been met, we affirm the Han-nay panel’s conclusion that work-loss benefits that exceed the statutory maximum are available against a governmental entity, and we reverse the Hunter panel’s conclusion that noneconomic damages do not fall within the category of damages compensable under the motor vehicle exception and remand to the trial court for further proceedings consistent with this opinion. With regard to the second issue in Hannay, we reverse the portion of the Court of Appeals’ opinion that affirms the work-loss damages award and remand to the trial court for recalculation of the work-loss award consistent with this opinion. Young, C.J., and Markman, Kelly, McCormack, and Viviano, JJ., concurred with Zahra, J. CAVANAGH, J. I concur in the result only. MCL 691.1405. Hannay v Dep’t of Transp, 299 Mich App 261; 829 NW2d 883 (2013). Hunter v Sisco, 300 Mich App 299; 832 NW2d 753 (2013). At the time of her accident, plaintiff was working part time as a dental assistant and part time as a clerk at a dime store, earning approximately $10 per hour at each of these jobs. Defendant Silcox is not involved in this appeal because plaintiff dismissed her complaint against him before trial began. Plaintiff also alleged all noneconomic damages compensable under the no-fault act for the serious impairment of a body function or permanent serious disfigurement. Defendant did not appeal the trial court’s finding that plaintiff suffered a serious impairment of a body function or the trial court’s award of noneconomic damages, and thus, those issues are not before this Court. Therefore, while the issue of noneconomic damages is at issue in Hunter, it is not at issue in Hannay. The trial court calculated plaintiffs work-damages based on a rate of 60% of full-time employment, i.e., part-time employment, in light of the testimony presented at trial that (1) plaintiff would have been hired to replace Mrs. Johnston, who worked part time, to allow her to retire and (2) Dr. Johnston did not have any full-time dental hygienists currently on staff. Hannay, 299 Mich App at 270, 273-274. The Court of Appeals rejected plaintiffs cross-appeal, in which plaintiff argued that the trial court erred by calculating her work-loss damages on the basis of part-time employment rather than full-time employment. Id. at 273. Id. at 270. id. Id. Defendant Sisco is not involved in this appeal because the trial court granted summary disposition in his favor. Plaintiff also alleged economic damages. Flint did not challenge plaintiffs ability to recover economic damages. Therefore, while the issue of whether economic damages are compensable under the motor vehicle exception to governmental immunity is at issue in Hannay, it is not in Hunter. Hunter, 300 Mich App at 235-236, 241. The panel, however, affirmed the trial court’s ruling that a genuine issue of material fact remained regarding whether plaintiff suffered a serious impairment of a body function, and remanded “for the trial court to hold a full evidentiary hearing to determine whether plaintiff did, indeed, suffer a serious impairment of body function and whether the collision caused his injury.” Id. at 243. We denied leave to appeal regarding these matters; therefore, they are not before this Court. As discussed at greater length later in this opinion, however, we take this opportunity to clarify the propriety of the panel’s inclusion of the “serious impairment” question in its ordered evidentiary hearing, given the interrelationship between that determination and the immunity issues now before us. In re Bradley Estate, 494 Mich 367, 377; 835 NW2d 545 (2013). People v Couzens, 480 Mich 240, 249; 747 NW2d 849 (2008). Id. Bradley Estate, 494 Mich at 377 (quotation marks and footnotes omitted). Couzens, 480 Mich at 249-250. MCR 2.613(C). See also Ford Motor Co v Dep’t of Treasury, 496 Mich 382, 389; 852 NW2d 786 (2014). Cain v Mich Dep’t of Corrections, 451 Mich 470, 503 n 38; 548 NW2d 210 (1996). Bradley Estate, 494 Mich at 377. Id. at 376-377. MCR 2.116(0(10). Bradley Estate, 494 Mich at 376. Ballard v Ypsilanti Twp, 457 Mich 564, 567; 577 NW2d 890 (1998). Id. at 567-568. Bradley Estate, 494 Mich at 377-378. Id. at 377-378. MCL 691.1407(1) provides: Except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act does not modify or restrict the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed. MCL 691.1401(a), (d), (e); MCL 691.1407(1). Robinson v Lansing, 486 Mich 1, 5; 782 NW2d 171 (2010). Id., citing Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961); McDowell v State Hwy Comm’r, 365 Mich 268; 112 NW2d 491 (1961). Robinson, 486 Mich at 5. See also MCL 691.1407(1) and Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 593-608; 363 NW2d 641 (1984) (providing a detailed histoiy of sovereign immunity, governmental immunity, and the GTLA). The six statutory exceptions to governmental immunity contained within the GTLA precede and follow the general grant of immunity in MCL 691.1407(1): “the highway exception, MCL 691.1402; the motor-vehicle exception, MCL 691.1405; the puhlic-building exception, MCL 691.1406; the proprietary-function exception, MCL 691.1413; the governmental-hospital exception, MCL 691.1407(4); and the sewage-disposal-system-event exception, MCL 691.1417(2) and (3).” Wesche v Mecosta Co Road Comm, 480 Mich 75, 84 n 10; 746 NW2d 847 (2008). 1964 PA 170. The motor vehicle exception existed before the GTLA was enacted, though the wording differed and there were separate statutes relating to the liability of the state’s political subdivisions and the state itself. See 1945 PA 87, which became 1948 CL 691.141; 1945 PA 127, which became 1948 CL 691.151. Bradley Estate, 494 Mich at 371. Id. at 371, 380-385. Id. at 385. Id. (footnotes omitted; some emphasis added; alteration in original). See Robinson, 486 Mich at 17 (“[Ulnless the Legislature indicates otherwise, when it repeatedly uses the same phrase in a statute, that phrase should be given the same meaning throughout the statute.”). Wesche, 480 Mich 75. Id. at 79. Id. at 84. Id. at 84-85 (quotation marks and citations omitted; emphasis added; alteration in original). We point out that a prior decision of this Court, Roberts v Detroit, 102 Mich 64; 60 NW 450 (1894), effectively resolved the question whether a loss of consortium is a “bodily injury,” within the context of an early version of the highway exception, concluding that it was not. Henry v Dow Chemical Co, 473 Mich 63; 701 NW2d 684 (2005). Id. at 74. Id. (emphasis added). Id. (emphasis added). Id. at 75 (emphasis added). MCL 691.1407(1); Bradley Estate, 494 Mich at 378, 384-385. Sherwood v Chicago & WM R Co, 82 Mich 374, 383; 46 NW 773 (1890). See also Power v Harlow, 57 Mich 107, 119; 23 NW 606 (1885) (involving an action for damages for injury caused by negligence and approving of jury instructions on damages, stating, “It was proper for the jury to take into account how the plaintiff might be restricted in his choice of occupation by the injury, and limited in his ability to work; and though the word ‘humiliation’ was not a fortunate one to make use of, there can be no supposition that its use was misleading”). Beath v Rapid R Co, 119 Mich 512, 517-518; 78 NW 37 (1899) (emphasis added). Price v High Pointe Oil Co, Inc, 493 Mich 238; 828 NW2d 660 (2013). Sutter v Biggs, 377 Mich 80; 139 NW2d 684 (1966). Price, 493 Mich at 255, quoting Sutter, 377 Mich at 86. We held in Price, however, that because no case in this state had permitted a plaintiff to recover for noneconomic damages resulting only from the destruction of property, the narrower common-law rule applicable to negligent destruction of property controlled. Id. at 254-256. See also Grenawalt v Nyhuis, 335 Mich 76, 87; 55 NW2d 736 (1952) (holding that the trial court properly refused to charge the jury with an instruction that the plaintiff, who was injured at a beauty salon, “was not entitled to recover damages for annoyance, discomfitureL,] and humiliation suffered by her as the result of her inability to have her hair dyed or tinted”). We note that, under the common law, a plaintiff might be able to recover damages for emotional distress even if that distress is not alleged to flow from an injury for which the plaintiff seeks compensation. We have limited recovery on that basis, however, to circumstances in which the alleged emotional distress is accompanied by physical symptoms. See Henry, 473 Mich at 79 (explaining that “our common law recognizes emotional distress as the basis for a negligence action only when a plaintiff can also establish physical manifestations of that distress”); Daley v LaCroix, 384 Mich 4, 12-13; 179 NW2d 390 (1970) (overruling caselaw imposing the “impact requirement” and holding “that where a definite and objective physical injury is produced as a result of emotional distress proximately caused by defendant’s negligent conduct, the plaintiff in a properly pleaded and proved action may recover in damages for such physical consequences to himself notwithstanding the absence of any physical impact upon plaintiff at the time of the mental shock”). See Part III.B.6 of this opinion. MCL 8.3a. See also Bradley Estate, 494 Mich at 377. 1861 PA 197 (emphasis added). See also several versions that followed that were materially the same with regard to imposing liability for “just damages” for “bodily injury”: 1879 PA 244, 1885 PA 214, and 1887 PA 264. 1887 PA 264 ultimately became 1897 CL 3441. Public Act 214 of 1885 was ruled unconstitutional by this Court because the statute contained a provision abrogating common-law liability with regard to injuries covered by the statute and a provision setting dollar limitations on sidewalk claims that were not expressed in the title of the act. Church v Detroit, 64 Mich 571, 573-574; 31 NW 447 (1887). However, the sidewalk provision was included in the version that followed, 1887 PA 264. 1887 PA 264. Moore v Kalamazoo, 109 Mich 176; 66 NW 1089 (1896). The statute in effect at the time was 1887 PA 264, which became 1897 CL 3441, and provided [t]hat any person or persons sustaining bodily injury upon any of the public highways or streets in this state, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, cross-walks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, cross-walk or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction. [Emphasis added.] Moore, 109 Mich at 178. Id. at 179. See also Abbott v Detroit, 150 Mich 245, 251-252; 113 NW 1121 (1907), a defective crosswalk case in which this Court approved of jury instructions regarding loss of earnings, stating: The charge is not subject to the criticism that it allowed the jury to speculate. It was confined to such damages arising from this injury as the jury from the evidence might find by reason of the impairment of her earning capacity. There was evidence as to the wages she earned upon which the jury could base their judgment as to the amount of these damages. The small verdict returned is an indication that no speculation was indulged in by the jury. The statute in effect at the time was 1887 PA 264, which became 1897 CL 3441. Roberts v Detroit, 102 Mich 64; 60 NW 450 (1894). Id. at 65-66. Id. at 67 (emphasis added). Hall v City of Cadillac, 114 Mich 99, 100; 72 NW 33 (1897). The statute in effect at the time was 1887 PA 264, which became 1897 CL 3441. Id. Id. at 103. 1964 PA 170. Hunter, 300 Mich App at 240-241. Id. at 236. Id. at 240-241. Wesche, 480 Mich at 85 (emphasis added). Id. at 85-86. Id. at 86. Id. Id. at 87. Id. at 84 (emphasis added). Black’s Law Dictionary (9th ed). Hunter, 300 Mich App at 241 (“Such damages simply do not constitute physical injury to the body and do not fall within the motor vehicle exception.”) (emphasis added). Wesche, 480 Mich at 85 (“It is beyond dispute that a loss of consortium is not a physical injuiy to a body”). This Court went on to expressly state that “loss of consortium is not merely an item of damages.” Id. Roberts, 102 Mich 64. Id. at 67. See Part III.B.6 of this opinion. MCL 500.3135(3). Hardy v Oakland Co, 461 Mich 561, 565; 607 NW2d 718 (2000). MCL 500.3135(3)(c); Johnson v Recca, 492 Mich 169, 197; 821 NW2d 520 (2012). We note, however, that our holding in this regard is not intended to suggest that the no-fault act supersedes the GTLA. Rather, MCL 691.1405 and MCL 500.3135 may be read harmoniously to provide that a plaintiff may avoid governmental immunity if he suffers “bodily injury” under the motor vehicle exception, but he must also meet the requirements contained within the enumerated exceptions to the no-fault act’s abolition of tort liability, such as the “death, serious impairment of body function, or permanent serious disfigurement” threshold pertaining to recovery of noneconomic damages. Hannay, 299 Mich App at 270. Hunter, 300 Mich App at 241. The Hunter panel further erred in its analysis of plaintiff Hunter’s claimed damages by conflating certain questions of liability under the no-fault act with questions of immunity under the GTLA. As previously noted, after the Hunter panel erroneously concluded that noneconomic damages were beyond the scope of the motor vehicle exception’s waiver of immunity, it remanded for the trial court to conduct an evidentiary hearing to resolve outstanding factual issues bearing on whether the City was immune from plaintiff Hunter’s claimed excess economic damages and, thus, entitled to summary disposition as to those damages under MCR 2.116(C)(7) as well. The Hunter panel included among these factual issues whether plaintiff Hunter suffered a “serious impairment of body function” as contemplated under MCL 500.3135, reasoning that “[a] plaintiff making a tort claim for excess damages under the motor vehicle exception must, as a threshold, show a serious impairment of body function.” Id. at 241. This reasoning is flawed in two respects. First, while we agree a showing of “death, serious impairment of body function, or permanent serious disfigurement” is necessary under the no-fault act in order for a plaintiff to recover noneconomic damages in a third-party tort action against a governmental entity, see Hardy, 461 Mich at 565, neither the no-fault act nor the GTLA requires this for a plaintiff to recover excess economic damages. Second, and relatedly, while a plaintiff must demonstrate “death, serious impairment of body function, or permanent serious disfigurement” to recover noneconomic damages in a third-party tort action, whether that requirement has been met is a question of liability, not immunity. As discussed earlier, to demonstrate immunity has been waived as to a claim for such damages, the GTLA, by its plain language, requires a showing of “bodily injury.” Accordingly, while plaintiff Hunter’s path to recovery of noneconomic damages from defendant Flint requires him to demonstrate both a “bodily injury” under the GTLA and a “serious impairment of body function” under the no-fault act, he need only clear the first such hurdle in opposing defendant Flint’s motion for summary disposition under MCR 2.116(C)(7). For these reasons, it was error for the Hunter panel to conclude that resolution of this motion with regard to excess economic damages would require an evidentiary hearing before the court to determine whether plaintiff Hunter suffered a “serious impairment of body function.” Sutter, 377 Mich at 86. See also Price, 493 Mich at 254-255. For example, in Sutter, a medical malpractice case involving the wrongful excising of the plaintiffs right fallopian tube, this Court rejected the plaintiffs argument that by the trial court refusing the plaintiffs request for instructions pertaining to her claim of damages for the loss of the ability to bear children and resulting emotional suffering, “the jury was precluded by the trial judge from considering her full measure of damages.” Id. at 83. This Court concluded, “[P]laintiff s loss of ability to bear children was not a legal and natural consequence of defendant’s act, but, within the meaning of the rule, was contingent, that is, contingent upon the possibility that plaintiff could develop a cyst on her remaining tube which could require excision of the tube itself.” We concluded that “[a]t best, the damages are contingent and, therefore, barred____” Sutter, 377 Mich at 87. Sutter, 377 Mich at 86-87. Fera v Village Plaza, Inc, 396 Mich 639, 648; 242 NW2d 372 (1976) (quotation marks and citation omitted). Washington v Jones, 386 Mich 466, 472; 192 NW2d 234 (1971). Ouellette v Kenealy, 424 Mich 83, 88; 378 NW2d 470 (1985) (“Damages . . . are not recoverable for loss of earning capacity” under the no-fault act). Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 648; 513 NW2d 799 (1994). MCL 500.3107a adds that “work loss for an injured person who is temporarily unemployed at the time of the accident or during the period of disability shall be based on earned income for the last month employed full time preceding the accident.” MacDonald v State Farm Mut Ins Co, 419 Mich 146, 152; 350 NW2d 233 (1984) (emphasis added) (concluding that because two weeks after the plaintiff was injured he suffered a heart attack that would have independently rendered him unable to work, the plaintiff was “ineligible for work-loss benefits after that date under § 3107(b)”). Ouellette, 424 Mich at 87 (quotation marks omitted). Marquis, 444 Mich at 647-648. The Marquis Court quoted with approval a Court of Appeals decision that recognized that the earning capacity “could have earned” standard “ ‘contrasts sharply with the language’ ” of MCL 500.3107(l)(b) that uses the language “loss of income from work an injured person would have performed. ...” Id. at 648, quoting Nawrocki v Hawkeye Security Ins Co, 83 Mich App 135, 140-141; 286 NW2d 317 (1978). MacDonald, 419 Mich at 152. Marquis, 444 Mich at 648. Popma v Auto Club Ins Ass’n, 446 Mich 460, 472; 521 NW2d 831 (1994). Id. Id. Id. Moreover, in scenarios in which the injured person is “temporarily unemployed at the time of the accident,” the Legislature expressly required that a work loss award “shall be based on earned income from the last month employed full time preceding the accident.” MCL 500.3107a (emphasis added). In other words, the Legislature required that work-loss awards must be based on past wage history when the plaintiff was temporarily unemployed. This provision was “intended to remedy the situation in which a claimant is precluded from receiving any work-loss benefits because the claimant is unemployed at the time of the accident.” Popma, 446 Mich at 469. While this provision does not apply to the plaintiff in this case because she was not temporarily unemployed at the time of the accident, it does provide insight into the Legislature’s intent with regard to the meaning of “work loss” generally in that it looked to the wages received by the plaintiff. See Couzens, 480 Mich at 249 (“[Wjords and phrases used in an act should be read in context with the entire act and assigned such meanings as to harmonize with the act as a whole.”). As the Court of Appeals noted in Gerardi v Buckeye Union Ins Co, “By adopting actual past wages as the appropriate standard for [temporarily] unemployed workers, the Legislature merely emphasized that the thrust of the work loss provision in all cases was to calculate loss based on actual earnings, not on future possibilities.” Gerardi v Buckeye Union Ins Co, 89 Mich App 90, 94; 279 NW2d 588 (1979). Popma, 446 Mich at 472. Gobler v Auto-Owners Ins Co, 428 Mich 51, 60; 404 NW2d 199 (1987), citing MCL 500.3108(1) (emphasis altered). Id. at 55-57, 65-66. Id. at 65. Id. at 66. Swartout v State Farm Mut, 156 Mich App 350, 352; 401 NW2d 364 (1987). Id. at 352. Id. Id. Id. at 354. Id. at 355. Gerardi, 89 Mich App at 92-93. Id. at 95. Id. See MCR 2.613 (stating in part that “regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it”). See Voss v Adams, 271 Mich 203, 205-206; 259 NW 889 (1935) (recognizing the natural uncertainty in damages inquiries generally, stating, “uncertain damages are not always speculative” and that “[t]here is a difference between certainty as to the existence or cause of an injury and as to the measure or extent of the damage. It is a recognized rule that a wrongdoer will not go scot-free because his victim cannot prove his loss exactly. If the existence and cause of the injury are traced to a tort and damages are not susceptible of computation, the jury will allow such compensation as, under all the circumstances and in the exercise of sound conscience and good judgment, they shall deem just”). Sutter, 377 Mich at 87.
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Memorandum Opinion. The issue before this Court concerns the matter of age calculation for the purposes of Miller v Alabama, 567 US_; 132 S Ct 2455; 183 L Ed 2d 407 (2012), in which the United States Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” The Court of Appeals in a very thorough and thoughtful opinion held that such calculation must be made with reference to a person’s anniversary of birth. We agree and affirm the judgment of the Court of Appeals. Between 10:00 and 11:00 p.m. on January 28, 2007, defendant took part in a fatal shooting. Defendant was born on January 29, 1989, so the shooting occurred one to two hours before the 18th anniversary of his birthday. A jury found defendant guilty of first-degree murder, MCL 750.316, and the trial court sentenced defendant to mandatory life in prison without the possibility of parole for the conviction. On direct appeal, defendant argued that he was entitled to resentencing in accordance with Miller because he was “under the age of 18” when the shooting occurred. While affirming defendant’s convictions, the Court of Appeals remanded for resentencing on the grounds asserted by defendant. People v Woolfolk, 304 Mich App 450; 848 NW2d 169 (2014). “[T]he common law prevails except as abrogated by the Constitution, the Legislature, or this Court.” People v Stevenson, 416 Mich 383, 389; 331 NW2d 143 (1982). This state’s common law is adopted from England, In re Receivership of 11910 S Francis Rd, 492 Mich 208, 219; 821 NW2d 503 (2012), and to identify such law this Court may consider original English cases and authorities, People v Duffield, 387 Mich 300, 314; 197 NW2d 25 (1972). In Nichols v Ramsel, 2 Mod 280; 86 Eng Rep 1072 (KB, 1677), the court of common pleas in England stated: So in a devise the question was, whether the testator was of age or not? And the evidence was, that he was born the first day of January in the afternoon of that day, and died in the morning on the last day of December: and it was held by all the Judges that he was of full age; for there shall be no fraction of a day. Furthermore, the English jurist and expositor of the common law, William Blackstone, has written: So that full age in male or female is twenty-one years, which age is completed on the day preceding the anniversary of a person’s birth; who till that time is an infant, and so styled in law. [Blackstone, Commentaries on the Laws of England (Jones ed, 1976), p 661.] Given these authorities, as well as additional ones cited by the Court of Appeals, we agree that under English common law, an individual reaches the next year of age on the day preceding his or her anniversary of birth. This common law was adopted as the law of this state upon statehood and has since remained the law of this state. However, this Court “[has] not hesitated to examine common-law doctrines in view of changes in society’s mores, institutions, and problems, and to alter those doctrines where necessary.” Adkins v Thomas Solvent Co, 440 Mich 293, 317; 487 NW2d 715 (1992). Our role when doing so is “to determine which common-law rules best serve the interests of Michigan citizens.” Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 607; 614 NW2d 88 (2000). More particularly, our role in such circumstances is to determine the “prevailing customs and practices of the people” in this state. Woodman v Kera, LLC, 486 Mich 228, 278; 785 NW2d 1 (2010) (MARKMAN, J., concurring in part and dissenting in part). As recognized by the Court of Appeals, this Court at times has seemingly employed language consistent with calculating age by anniversary of birth. See, e.g., Bay Trust Co v Agricultural Life Ins Co, 279 Mich 248, 253; 271 NW 749 (1937) (arguably set forth in dicta). Compare People v Aaron, 409 Mich 672, 722; 299 NW2d 304 (1980) (“It is a well-settled principle that a ‘point assumed without consideration is of course not decided.’ ”). Notwithstanding that dicta cannot establish the basis for a change in common law, the language in Bay Trust is consistent with this Court’s present understanding of the prevailing customs and practices of the people to determine the next year of age by anniversary of birth, not by the day preceding the anniversary of birth as at English common law. In addition, we are persuaded by the Court of Appeals’ recitation of statutes referring to year of age by date of birth. See, e.g., MCL 380.1561(1). These statutes express legisla tive policy that this Court may also consider in discerning the common law. Moning v Alfono, 400 Mich 425, 453-454; 254 NW2d 759 (1977). We therefore take this opportunity to make clear that the common law of this state should now be understood to provide that a defendant is a juvenile for the purposes of Miller when he or she is under the age of 18, as determined by his or her anniversary of birth. By this calculation, defendant remained “under the age of 18” at the time he committed the instant homicide offense and is therefore entitled to be treated in accordance with the United States Supreme Court’s rule in Miller. We thus affirm the Court of Appeals. The application for leave to appeal as cross-appellant is denied, because we are not persuaded that the questions presented should be reviewed by this Court. Young, C.J., and Markman, Kelly, Zahra, McCormack, and VIVIANO, JJ., concurred. CAVANAGH, J. I concur in the result only.
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McCORMACK, J. The question before us is whether the defendant was denied the effective assistance of counsel by his trial counsel’s failure to investigate adequately and to attempt to secure suitable expert assistance in the preparation and presentation of his defense. In this case involving the unexplained and unwitnessed death of a child, expert testimony was critical to explain whether the cause of death was intentional or accidental. Contrary to the determination of the Court of Appeals, we conclude that defense counsel’s failure to attempt to engage a single expert witness to rebut the prosecution’s expert testimony, or to attempt to consult an expert with the scientific training to support the defendant’s theory of the case, fell below an objective standard of reasonableness, and created a reasonable probability that this error affected the outcome of the defendant’s trial. See Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Accord ingly, we reverse the judgment of the Court of Appeals, vacate the defendant’s convictions, and remand for proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY The defendant was convicted by a jury of first-degree felony murder, MCL 750.316(l)(b), and first-degree child abuse, MCL 750.136b(2), after his live-in girlfriend’s three-year-old daughter died while in his care. According to the defendant, the child had been napping alone in her room before he discovered her lying unresponsive on the floor next to the bed. The prosecution alleged that the defendant killed the child, either by blunt force trauma or shaking. The defendant denied hurting the child, and said that she must have died as the result of an accidental fall. Given the lack of eyewitness testimony and any other form of direct evidence, expert testimony was the cornerstone of the prosecution’s case. The prosecution called five medical experts to testify at trial about the cause of the child’s death: two general pediatricians, a pediatric critical care doctor, a trauma surgeon, and a forensic pathologist. Each testified that the child died as a result of abusive head injury caused either by nonaccidental shaking, blunt force trauma, or a combination of both. The defense, in contrast, called no expert in support of its theory that the child’s injuries resulted from an accidental fall, although the court had provided funding for expert assistance. The defendant appealed his convictions as of right, arguing that he was entitled to a new trial because his lawyer’s failure to meaningfully challenge the prosecution’s expert testimony regarding the cause of the child’s death violated his Sixth Amendment right to the effective assistance of counsel. The Court of Appeals remanded for an evidentiary hearing pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). People v Ackley, unpublished order of the Court of Appeals, entered May 24, 2013 (Docket No 310350). At the Ginther hearing, the defendant’s trial counsel testified that he contacted only one expert to prepare for trial: forensic pathologist Brian Hunter. Dr. Hunter testified that, after reviewing some of the case materials, he advised counsel “right off the bat” that he was “not the best person” for the defense. He also explained to counsel that there was a marked difference of opinion within the medical community about diagnosing injuries that result from falling short distances, on the one hand, and shaken baby syndrome (SBS) or, as it is sometimes termed, abusive head trauma (AHT), on the other hand. Hunter asserted that this divide is “like a religion” because each expert has deeply held beliefs about when each diagnosis is supported, and the defendant should have the benefit of an expert who, “[i]n his or her religion, believes this could be a short-fall death.” Hunter emphasized to counsel that he was on the wrong side of this debate to be able to assist the defendant. Hunter then referred counsel to at least one well-known forensic pathologist, Dr. Mark Shuman, who had conducted substantial research on short falls. Hunter characterized Dr. Shuman as the “best person” to assess the “complex” short-fall mechanism involved in the defendant’s theory. Hunter could not promise that Dr. Shuman would “buy into every story the defendant is selling,” but he informed counsel that Dr. Shuman was a “man of science . . . he’s the guy that’s going to give you your best shot.” Counsel testified that he never contacted Shuman, or any other expert in short falls. Nor did he read any medical treatises or other articles about the medical diagnoses at issue. Though recognizing that expert testimony can carry great weight with a jury, he nevertheless stated that while it may have been “prudent” for him to have consulted “the over 400 treatises available” in preparing his cross-examinations of the prosecution’s experts “that wasn’t the strategy.” Instead, he requested a second consultation with Hunter, offering the simple (albeit inexplicable) justification that Dr. Shuman “was not going to work out.” Hunter reiterated his concerns with defense counsel’s choice to use him, unambiguously warning counsel again that “you don’t want me as your defense expert.” Counsel testified that he nevertheless continued to rely on only Hunter in his trial preparation, consulting him at least two more times before trial. Specifically, counsel provided Hunter with additional—but incomplete —portions of the case materials so that Hunter could give counsel advice on how to approach the prosecution’s experts. Counsel admitted that Hunter’s advice was his only method of preparing to cross-examine the prosecution’s experts on the viability of their SBS/AHT theory of the child’s cause of death. Finally, the parties stipulated to the admission of an affidavit from Dr. Werner Spitz, another well-known expert in forensic pathology. After reviewing the autopsy report, postmortem photographs, and the trial transcripts, Dr. Spitz opined that the bruises on the child’s body were consistent with the intubation and CPR she received on the day of her death. He then averred that he would have testified that the child’s head injuries could not be attributed to SBS/AHT but were caused by a likely accidental “mild impact.” Based on this evidence, the trial court granted the defendant a new trial. It found that counsel’s original failure even to attempt to contact either Dr. Shuman or Dr. Spitz was objectively unreasonable, and that there was a reasonable probability of a different result at trial had counsel engaged his own medical expert. The Court of Appeals reversed, concluding that while there was no clear error in the trial court’s findings of fact, the trial court had abused its discretion in finding a constitutional violation because counsel’s “decision not to consult a second expert constituted trial strategy.” People v Ackley, unpublished opinion per curiam of the Court of Appeals, issued April 22, 2014 (Docket No. 318303), p 4. The court also held that even if counsel should have contacted an expert other than Hunter, no prejudice resulted in light of all the evidence against the defendant. The defendant sought leave to appeal in this Court. We heard oral argument on the application, limited to the issue of “whether the defendant was denied the effective assistance of counsel based on trial counsel’s failure to adequately investigate the possibility of obtaining expert testimony in support of the defense.” II. STANDARD OP REVIEW 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. Trakhtenberg, 493 Mich at 47. III. ANALYSIS Both the Michigan and United States Constitutions require that a criminal defendant be afforded the assistance of counsel in his or her defense. US Const, Am VI; Const 1963, art 1, § 20. To be constitutionally effective, counsel’s performance must meet an “objective standard of reasonableness.” Trakhtenberg, 493 Mich at 52. To show that 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., citing Strickland v Washington, 466 US at 689. But “a court cannot insulate the review of counsel’s performance by calling it trial strategy”; counsel’s strategy must be sound, and the decisions as to it objectively reasonable. Trakhtenberg, 493 Mich at 52. Courts must determine whether the “strategic choices [were] made after less than complete investigation,” or if a “reasonable decision [made] particular investigations unnecessary.” Strickland, 466 US at 690-691. To obtain relief for the denial of the effective assistance of counsel, the defendant must show that counsel’s performance fell short of this “objective standard of reasonableness” and that, but for counsel’s deficient performance, “there is a reasonable probability that the outcome of [the defendant’s trial] would have been different.” Trakhtenberg, 493 Mich at 51. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 US at 694. A. COUNSEL’S PERFORMANCE Turning first to the performance prong of the Strickland analysis, we disagree with the Court of Appeals that counsel’s decision to consult only Dr. Hunter in preparation for trial was objectively reasonable. Rather, like the trial court, we conclude that counsel performed deficiently by failing to investigate and attempt to secure an expert witness who could both testify in support of the defendant’s theory that the child’s injuries were caused by an accidental fall and prepare counsel to counter the prosecution’s expert medical testimony. As defense counsel was well aware before trial, the prosecution’s theory of the case was that the defendant intentionally caused the child’s unwitnessed injuries, a premise that it intended to prove with expert testimony. This testimony would require a response, and indeed, the court granted counsel funding to seek expert assistance of his own. Yet counsel contacted only Hunter, who repeatedly made clear that he credited the prosecution’s SBS/AHT theory and disagreed with the defense’s theory. While conceding that the SBS/AHT diagnosis was not universally accepted within the medical community, Hunter explained to counsel that he “really d[id]n’t think [he] could help” the defendant because he was on the wrong side of this debate in his field. As a solution, he advised counsel to consult Dr. Shuman, who not only was on the defendant’s side of the SBS/AHT debate generally, but was significantly more likely to agree with the defendant’s claim that the child’s death in this case must have been accidental. Hunter even suggested that Dr. Shuman was more qualified because he had studied short falls extensively. Whereas Hunter was part of the group of experts who “don’t have a good model” to support the accidental fall theory, Dr. Shuman was “someone who has dug into the physics” and the “proposed models” of a short-fall injury. Hunter also characterized Dr. Shuman as a “man of science” and as “the best expert in these types of situations.” Yet counsel ignored this advice. He did not contact Dr. Shuman or any other forensic pathologist with expertise in short falls, rendering Hunter his expert by default. Counsel did not have sufficient information to legitimate this “choice.” While an attorney’s selection of an expert witness may be a “paradigmatic example” of trial strategy, that is so only when it is made “after thorough investigation of [the] law and facts” in a case. Hinton v Alabama,_US_; 134 S Ct 1081, 1088; 188 L Ed 2d 1 (2014) (emphasis added). In this case, the record betrays no objectively reasonable explanation for coun sel’s decision to confine his pursuit of expert assistance to Hunter, a self-proclaimed opponent of the very defense theory counsel was to employ at trial, despite Hunter’s referral to at least one other expert who could provide qualified and suitable assistance to the defendant. Nor is there any indication that counsel had the requisite familiarity with SBS/AHT or short-fall death theories to justify his settling on consulting only Hunter. To the contrary, counsel admittedly failed to consult any of the readily available journal articles on SBS/AHT and short-fall deaths, and did not otherwise educate himself or conduct any independent investigation of the medical issues at the center of the case, beyond his limited consultations with Hunter. See Trakhtenberg, 493 Mich at 54 n 9 (noting that “a defense attorney may be deemed ineffective, in part, for failing to consult an expert when counsel had neither the education nor the experience necessary to evaluate the evidence and make for himself a reasonable, informed determination as to whether an expert should be consulted or called to the stand....”) (quotation marks and citation omitted); Lindstadt v Keane, 239 F3d 191, 202 (CA 2, 2001) (noting that counsel’s lack of familiarity with pertinent sexual abuse studies and failure to conduct any relevant research “hamstrung” his effort to effectively cross-examine the prosecution’s expert witness); Holsomback v White, 133 F3d 1382, 1387-1389 (CA 11, 1998) (holding that counsel’s failure to conduct an adequate investigation into medical evidence of sexual abuse was ineffective). We fail to see how counsel’s sparse efforts satisfied his “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary,” Hinton, 134 S Ct at 1088, quoting Strickland, 466 US at 690-691, especially in light of the prominent controversy within the medical community regarding the reliability of SBS/AHT diagnoses. See State v Edmunds, 308 Wis 2d 374, 391-392; 746 NW2d 590 (2008) (holding that the “significant dispute” and “shift in the mainstream medical community” regarding SBS/AHT diagnoses since the defendant’s trial established a reasonable probability that a different result would be reached in a new trial, entitling the defendant to relief); Findley et al., Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right, 12 Hous J Health L & Policy 209, 212 (2012) (explaining that, in SBS/AHT cases, “it is critical to assess the reliability of the diagnoses under the standards of evidence-based medicine”). In this case involving such “substantial contradiction in a given area of expertise,” counsel’s failure to engage “expert testimony rebutting the state’s expert testimony” and to become “versed in [the] technical subject matter” most critical to the case resulted in two things: a defense theory without objective, expert testimonial support, and a defense counsel insufficiently equipped to challenge the prosecution’s experts because he possessed only Dr. Hunter’s reluctant and admittedly ill-suited input as his guide. Knott v Mabry, 671 F2d 1208, 1212-1213 (CA 8, 1982). This “constitute^] a constitutional flaw in the representation” of the defendant, not reasonable strategy. Id. at 1213. In concluding otherwise, the Court of Appeals stressed that counsel is not required to shop for experts until finding one who will offer favorable testimony. We do not dispute that general proposition, but we fail to see its relevance here. In this case, counsel did no consultation at all beyond settling on the very first expert he encountered, despite the importance of expert medical testimony in the case and despite that expert’s specific recommendation to contact a different and more suitable expert. Nor can we agree with the Court of Appeals that Dr. Hunter’s comments regarding Dr. Shuman’s impartiality rendered it “reasonable for [counsel] to conclude that consulting a second expert would not be useful.” Ackley, unpub op at 4. Hunter’s warning that Dr. Shuman “would not buy into every story” or blindly accept the defendant’s theory is consistent with scientific integrity, is desirable, and is, indeed, advantageous in the context of expert testimony. But more importantly, Hunter’s core message on this very point was that counsel should engage Dr. Shuman, a qualified expert better suited to support the defendant’s theory. And without having done any research on SBS/AHT or short-fall injuries, or having made any contact with Dr. Shuman, counsel “ ‘was ill equipped to assess his credibility or persuasiveness as a witness’, or to evaluate and weigh the risks of putting him on the stand.” Towns v Smith, 395 F3d 251, 260 (CA 6, 2005) (citation omitted). “To make a reasoned judgment about whether evidence is worth presenting, one must know what it says.” Couch v Booker, 632 F3d 241, 246 (CA 6, 2011). Finally, as Dr. Spitz’s affidavit plainly demonstrates, Dr. Hunter’s advice to consult another expert was well founded. Accordingly, we conclude that counsel’s efforts to investigate and attempt to secure suitable expert assistance in preparing and presenting defendant’s case fell below an objective standard of reasonableness. While the Court of Appeals may be correct that counsel’s deficiencies in this regard did not infect all of his conduct throughout the trial, see Ackley, unpub op at 6, the rest of his advocacy could not cure this crucial error. As the Supreme Court has said, “a single, serious error may support a claim of ineffective assistance of counsel.” Kimmelman v Morrison, 477 US 365, 383; 106 S Ct 2574; 91 L Ed 2d 305 (1986). Given the centrality of expert testimony to the prosecution’s proofs and the highly contested nature of the underlying medical issue, counsel committed exactly that kind of error by failing to consult an expert who could meaningfully assist him in advancing his theory of defense and in countering the prosecution’s theory of guilt. B. PREJUDICE We further conclude that, but for counsel’s deficient performance, “there is a reasonable probability that the outcome of [the defendant’s trial] would have been different.” Trakhtenberg, 493 Mich at 51; Strickland, 466 US at 694. As set forth above, the defendant’s conviction turned on the jury’s assessment of the prosecution’s cause-of-death theory, which was advanced through the testimony of five experts, each of whom concluded that the child’s injuries were the result of some form of intentional abuse. The defendant’s own testimony and that of his lay character witnesses were extremely unlikely to counter this formidable expert testimony. Therefore, the absence of expert assistance in the defendant’s favor was critical. It prevented counsel from testing the soundness of the prosecution’s experts’ conclusions with his own expert testimony and with effective cross-examination. And again, as Dr. Spitz’s affidavit shows, such expert assistance was available and would have provided the jury with another viable and impartial perspective on the facts of the case while contradicting the prosecution’s theory of how the child died. The Court of Appeals nonetheless found the prejudice from counsel’s deficient performance insufficient to warrant relief, given both the strength of the other, nonexpert evidence of the defendant’s guilt, and the sheer multitude of expert testimony the prosecution had marshaled in support of its position. We disagree times two. First, we fail to see particular strength in the prosecution’s nonexpert evidence, which was highly circumstantial, heavily contested, and far from dispositive of the issue of defendant’s guilt. There was no explanation for the child’s injuries beyond the theories presented by the experts, and the prosecution produced no witnesses who testified that the defendant was ever abusive. In fact, some testimony supported the opposite conclusion; according to the child’s mother, the defendant’s disciplinary tactics were no different from her own, there was no indication that either of her daughters feared the defendant, there were alternative explanations for some of the child’s bruises and physical symptoms, and the child willingly spent time with the defendant and called him “daddy.” And while the prosecution claimed that the child began to exhibit health issues around the time that the defendant entered her life, there was witness testimony to contradict this assertion, and the source and timing of these issues did not coincide with the defendant’s move into the family’s home or with his assumption of childcare duties. In short, our review of this nonexpert evidence makes plain why the prosecution chose to build its case primarily through the testimony of five experts, but it does little to weaken our conclusion that defense counsel’s failure to meaningfully engage and respond to this expert testimony created a reasonable probability of a different outcome at trial. Nor do we agree with the Court of Appeals that the sheer volume of the prosecution’s expert testimony rendered any such efforts by defense counsel futile. This reasoning presumptively prioritizes quantity over quality, and takes no account of the comparative persuasiveness of the “child abuse” and “accidental fall” theories at issue in the case. It also places the defendant in a near-impossible position, whereby the prejudice caused by his counsel’s error is effectively used to foreclose his claim of relief based upon that very error. The prosecution’s voluminous expert testimony made the need for an effective response by defense counsel particularly apparent and strong, and it rendered counsel’s failure to offer expert testimony particularly glaring and harmful to the defendant. Because of counsel’s omissions and the resulting absence of suitable expert assistance, the prosecution’s expert testimony appeared uncontested and overwhelming. Contrary to the Court of Appeals, we believe this consequence militates in favor of, rather than against, the defendant’s claim of relief. The Court of Appeals’ analysis thus vastly underestimated the value of expert assistance to the defense and the impact of its absence, ignoring the fact that in a SBS/AHT case such as this, where there is “no victim who can provide an account, no eyewitness, no corroborative physical evidence and no apparent motive to kill,” the expert “is the case .. . .” Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 Wash U L Kev 1, 27 (emphasis added). Here, expert testimony was not only integral to the prosecution’s ability to supply a narrative of the defendant’s guilt, it was likewise integral to the defendant’s ability to counter that narrative and supply his own. Had an impartial, scientifically trained expert corroborated the defendant’s theory, the defendant’s account of the child’s death would not have existed in a vacuum of his own self-interest. While we cannot say that a battle of the experts would have ensured the defendant’s acquittal, counsel’s failure to prepare or show up for the battle sufficiently “undermine [s our] confidence in the outcome” of this case to entitle the defendant to relief. Strickland, 466 US at 694. IV CONCLUSION For the reasons set forth above, we conclude that the defendant is entitled to a new trial because of his counsel’s constitutionally ineffective failure to investigate adequately and to attempt to secure appropriate expert assistance in the preparation and presentation of his defense. Accordingly, we reverse the judgment of the Court of Appeals, vacate the defendant’s convictions, and remand to the Calhoun County Circuit Court for further proceedings consistent with this opinion. Young, C.J., and Markman, Kelly, Zahra, Viviano, and Bernstein, JJ., concurred with McCormack, J. The prosecution also called an expert in emergency medicine, who testified regarding the child’s initial triage and treatment in the Battle Creek Health Systems Emergency Department. There was conflicting testimony between Hunter and defense counsel about Hunter’s referral(s). According to counsel, Hunter referred him to two experts: Dr. Shuman and Dr. Werner Spitz. According to Hunter, he referred counsel to Dr. Shuman only. In any event, counsel admitted that he never contacted either expert. Defense counsel explained that he preferred to attack the experts exclusively through the “gray area” that Hunter supplied'—namely, that there had been no studies as to the actual force necessary to achieve fatal blunt-force head injuries in children. Most notably, counsel failed to provide Hunter with certain critical case materials regarding injuries the child had suffered not long before her death, including: (1) a witness statement that the child had fallen off a trampoline, had struck her head, had briefly gone unconscious, and had been complaining of headaches in the days leading up to her death, and (2) the police report of the accident, which indicated that the child had been lethargic, had been vomiting, and had lost control of her bowels the day before she died. Counsel explained at the Ginther hearing that he was not paid for pretrial preparation. People v Ackley, 497 Mich 910 (2014). The child’s mother attributed these bruises to the child’s diet and physical activity, and the prosecution’s forensic pathologist stated that the child was mildly anemic and that her bruising had no pattern indicating an object or a hand. The Court of Appeals also cited the “peculiar” nature of the defendant’s actions on the day of the incident as an indication of his guilt. Specifically, the panel found significant the defendant’s failure to seek help from his neighbors after discovering the child on the floor, his attempt to revive her by pouring cold water over her, his decision to retrieve the family dog before fleeing the family’s home, and his decision to first go to his mother’s house rather than the hospital. We do not disagree that the defendant’s behavior was relevant and, furthermore, that a jury might consider it evidence of guilt. The probability that the jury would do so, however, might be said to make it even more critical that counsel counter the expert-endorsed theory of his client’s guilt with an expert-endorsed theory of his client’s innocence. Had counsel provided a different lens through which to view his client’s behavior, those same “peculiar” actions by the defendant might have instead been perceived as the missteps of a panicked, but nonetheless innocent, caretaker. For example, the Court of Appeals cited the child’s hair loss as one physical manifestation of abuse, but according to her mother, her hair began thinning before the defendant moved in with the family. In any event, doctors diagnosed it as an infection, not a stress-related issue. The child’s regression in toilet training was also emphasized as evidence of abuse. Yet a report from the child’s pediatrician attributed her developmental progress, including the fact that she had even begun her toilet training, to the defendant’s care. Unfortunately, defense counsel never called the child’s pediatrician to testify, though these facts could have refuted the prosecution’s allegations that the defendant had been physically abusing the child over a sustained period. Counsel’s only “explanation” for this omission was that this credible counter-evidence was not needed because it did not fit in with his “trial strategy” of attributing the child’s blunt force trauma to a fall from the bed.
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Memorandum Opinion. We consider in these consolidated cases whether a claimant’s failure to comply with the notice verification requirements of MCL 600.6431 provides a complete defense in an action against the state or one of its departments. We conclude that a notice lacking any indication that it was signed and verified before an officer authorized to administer oaths is defective and, contrary to the Court of Appeals’ conclusion, is a complete defense that may be raised at any time by a defendant entitled to governmental immunity. Accordingly, and in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals in both Stone v Michigan State Police and Fairley v Department of Corrections and remand the cases to the Court of Claims for reinstatement of the order granting defendant’s motion for summary disposition in the former and for entry of an order granting defendant’s motion for summary disposition in the latter. The purpose of MCL 600.6431 is to establish those conditions precedent to pursuing a claim against the state. One of these conditions provides: No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths. [MCL 600.6431(1).] Plainly, then, unless a claimant’s notice is “signed and verified by the claimant before an officer authorized to administer oaths,” a claim cannot proceed against the state. In both cases here, plaintiffs claim that nothing in the statute requires anyone other than the claimant to sign the notice and successfully argued in the Court of Appeals that defendants’ arguments for summary disposition regarding notice were waived because the plaintiffs’ alleged noncompliance with the statutory notice requirements was an affirmative defense that was not timely pleaded. Alternatively, defendants, both state agencies entitled to governmental immunity unless an exception applies, contend that complainants must “strictly” comply with the notice requirements in order to proceed. We conclude that failing to indicate anywhere on or with the notice that the document was verified before an officer authorized to administer oaths falls short of “strict” compliance and, as a result, plaintiffs’ cases must be dismissed. I. FACTS AND PROCEEDINGS BELOW A. FAIRLEY v DEP’T OF CORRECTIONS On March 11, 2011, plaintiff Michelle Fairley was injured in an automobile accident after a Michigan Department of Corrections (MDOC) vehicle, operated by an MDOC employee, ran a red light and struck Fairley’s car. Plaintiff faced life-altering injuries—to the brain, neck, and back—as well as associated pain, suffering, and emotional harm. Plaintiffs counsel subsequently filed a notice of injury and intent to hold MDOC liable in the Court of Claims. The parties do not dispute the timeliness of the notice or the propriety of MDOC’s designation as the responsible governmental agency. The notice plainly stated the facts surrounding the accident, including the location of the accident and the parties involved. While Fairley herself did not sign the notice, her attorney’s signature and the date appeared below the following disclaimer: This notice is intended to comply with all requirements of the law and all applicable statutes, ordinances, rules, and regulations.... If you believe this notice does not comply in any way with the notice requirement of the governing bodies of the State of Michigan and/or MDOC, or with an statute, ordinance, rule or regulation, you should immediately notify by written notice. Any additional information required by statute!,] ordinance, rule, or regulation will be promptly furnished. After Fairley filed her complaint with the court, defendant responded with more than 20 affirmative defenses. Although none of these defenses argued that plaintiffs notice of intent to file a claim was defective, defendant MDOC filed a motion for summary disposition arguing that plaintiffs notice of intent to file a claim failed to meet the standards set out in MCL 600.6431(1). The Court of Claims denied defendant’s motion for summary disposition, citing Kielb v Wayne State University Board of Governors, unpublished opinion per curiam of the Court of Appeals, issued October 2, 2012 (Docket No. 305927) in which the Court held that a defendant waives an issue of noncompliance with MCL 600.6431 if it is not pleaded as an affirmative defense. The Court of Appeals affirmed in an unpublished opinion per curiam. B. STONE v MICHIGAN STATE POLICE Lori Stone injured her neck when her stopped car was struck by two Michigan State Police patrol cars on May 19, 2007. Following the accident, Stone underwent surgery to fuse two of her neck vertebrae. Stone subsequently filed a notice of intént to file a claim with the Court of Claims. As was the case in Fairley, the parties do not dispute the timeliness of the notice or that, at the time of filing, this notice plainly stated the facts surrounding the accident including the location of the accident and the parties involved. The notice concluded with the statement “I declare that the statements above are true to the best of my information, knowledge, and belief.” The notice, undated, was signed by plaintiff and signed and “respectfully submitted” by her attorney, John Kline. Nevertheless, more than two years after responding to plaintiff’s complaint, defendant filed a motion for summary disposition arguing that the notice supplied by plaintiff’s counsel failed to meet the requirements of MCL 600.6431(1). Specifically, at the hearing on the motion, defendant argued: What these notices are about is governmental immunity. It’s exactly about putting up ... restraints on cases that can be brought against the State. The Supreme Court can’t be more clear, if you don’t meet the requirements you don’t abrogate governmental immunity. And the issue isn’t what verify or verification means, it’s what verify before an officer authorized to administer oaths means, and there’s just no evidence anywhere in this notice, the notice itself, that it was verified before an officer authorized to administer oaths. The Court of Claims agreed with defendant and signed an order granting summary disposition in its favor. In an unpublished opinion per curiam, the Court of Appeals reversed, concluding that the Court of Claims had erred and that the “the statute [MCL 600.6431(1)] does not. . . require that evidence of the oath or affirmation be on the face of the notice.” The panel further stated that a failure to comply with “purely procedural prerequisites,” such as those enumerated in MCL 600.6431, was an affirmative defense that must be timely raised or is waived. The case is now before this Court on appeal. II. STANDARD OF REVIEW This Court reviews de novo a lower court’s decision to grant or deny a motion for summary disposition. Further, the meaning of the final provision in MCL 600.6431(1)—requiring the notice to be “signed and verified by the claimant before an officer authorized to administer oaths”—is a question of statutory interpretation, which we likewise review de novo. The primary goal when interpreting a statute is to discern the intent of the Legislature by focusing on the most “reliable evidence” of that intent, the language of the statute itself. When legislative intent is clear from the language, no further construction is required or permitted. III. ANALYSIS The issue in these cases is whether plaintiffs’ notices were “signed and verified by the claimant before an officer authorized to administer oaths” and if not, whether an ineffective notice in a case involving governmental immunity must nonetheless be pleaded as an affirmative defense or be waived. Under the government tort liability act (GTLA), MCL 691.1401 et seq., governmental agencies are broadly shielded from tort liability. Here, the defendants are two such agencies: the Department of Corrections and the Michigan State Police. However, the accidents involving plaintiffs Fairley and Stone are alleged to fall within the motor vehicle exception to governmental immunity. In accordance with MCL 691.1410(1), a claim satisfying an exception to governmental immunity against a state agency must be “brought in the manner provided in [the Revised Judicature Act],” including MCL 600.6431. That is, while MCL 600.6431 does not “confer governmental immunity,” it establishes conditions precedent for avoiding the governmental immunity conferred by the GTLA, which expressly incorporates MCL 600.6431. As a result, plaintiffs must adhere to the conditions precedent in MCL 600.6431(1) to successfully expose the defendant state agencies to liability. It is well established that governmental immunity is not an affirmative defense, but is instead a characteristic of government. Mack v Detroit, 467 Mich 186, 198; 649 NW2d 47 (2002). “[I]t is the responsibility of the party seeking to impose liability on a governmental agency to demonstrate that its case falls within one of the exceptions [to governmental immunity].” Id. at 201. Furthermore, as we explained in McCahan: [W]hen the Legislature specifically qualifies the ability to bring a claim against the state or its subdivisions on a plaintiffs meeting certain notice requirements that the plaintiff fails to meet, no saving construction—such as requiring a defendant to prove actual prejudice—is allowed.[ ] In MCL 600.6431(1), the Legislature has qualified a claimant’s ability to bring a claim against the state by requiring that “the claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths.” While the Court of Appeals observed that “[t]he statute does not prescribe the kind of inquiry that must be made nor does any language in the statute require that evidence of the oath or affirmance be on the face of the notice,” this Court’s decision in McCahan v Brennan provided insight into the purpose to be served by the notice provision: [T]he Legislature has established a clear procedure that eliminates any ambiguity about whether an attempted notice is effective. A claimant who complies with MCL 600.6431 need not worry about whether a notice was properly received and processed by the correct governmental entity. By the same token, state entities can be secure knowing that only timely, verified claims in notices filed with the Court of Claims can give rise to potential liability ... ,[ ] If a notice, such as those here, fails to show that it was signed and verified before an officer authorized to administer oaths, how would a governmental entity he assured that the notice, which seeks to impose liability, was actually verified? It is for this very reason that MCL 600.6431 requires more than the mere act of verification and instead requires some proof of that verification—that, as defendant states, “the notice bear an indication that the signature was signed and sworn to before an officer authorized to administer oaths.” A. APPLICATION TO FAIRLEY We are satisfied that there is no material factual dispute regarding the notice submitted by plaintiff Fairley, as it is undisputed that she failed to sign the notice of intent. Accordingly, plaintiff did not submit a notice “signed by the claimant” as required by the plain language of the statute. Further, because the MDOC is a state agency entitled to governmental immunity, we conclude that defective notice need not be pleaded as an affirmative defense because defendants are presumed to be entitled to governmental immunity, and the burden is on plaintiff to prove that one of the exceptions to governmental immunity is applicable. For these reasons, we conclude that plaintiff Fairley’s notice was insufficient to maintain a claim against MDOC and, as a result, Fairley’s claim should be dismissed. Accordingly, the Court of Claims improperly denied defendant’s motion for summary disposition. B. APPLICATION TO STONE We also reject plaintiff Stone’s notice for the similar reason that it was not clear from the face of the document that it was verified “before an officer authorized to administer oaths.” We are unpersuaded that the belated affidavit of plaintiffs counsel asserting his dual role as attorney and notary public can cure this deficiency. Plaintiff Stone’s notice was either unverified but timely or untimely but verified, and in either circumstance it fails to meet the conditions precedent to maintaining a suit against the Michigan State Police. For these reasons, we likewise conclude that Stone’s claim should be dismissed. Accordingly, the Court of Claims properly granted defendant summary disposition and the Court of Appeals erred by reversing that order. IV CONCLUSION In Fairley, we hold that the lower courts erred by concluding that defendant was not entitled to summary disposition based on the plaintiffs failure to comply with the notice requirements of MCL 600.6431(1). In Stone, we hold that the Court of Appeals erred by-reversing the Court of Claims’ ruling granting defendant’s motion for summary disposition on that same basis. Accordingly, we reverse both judgments of the Court of Appeals. Because the notices supplied by each plaintiff failed to meet the requirements of MCL 600.6431(1), plaintiffs failed to defeat the protection of governmental immunity to which MDOC and the Michigan State Police are entitled. In lieu of granting defendants’ application for leave to appeal, we reverse the judgment of the Court of Appeals in Fairley and remand that case to the Court of Claims for entry of an order granting summary disposition in favor of defendant. We also reverse the judgment of the Court of Appeals in Stone and remand that case to the Court of Claims for reentry of its original order granting summary disposition in favor of defendant. Young, C.J., and Markman, Kelly, Zahra, McCormack, Viviano, and Bernstein, JJ., concurred. MCL 600.6431(3) provides, in pertinent part, that “claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action.” MCL 600.6431(2) likewise provides, in part, that “[s]uch claim or notice shall designate any department, commission, board, institution, arm or agency of the state involved in connection with such claim .. . .” Fairley v Mich Dep’t of Corrections, unpublished opinion per curiam of the Court of Appeals, issued June 10, 2014 (Docket No. 315594). Stone v Dep’t of State Police, unpublished opinion per curiam of the Court of Appeals, issued July 8, 2014 (Docket No. 314848) p 7. Id. at 7, quoting Tyra v Organ Procurement Agency of Mich, 302 Mich App 208, 212-213; 840 NW2d 730 (2013). McCahan v Brennan, 492 Mich 730, 735; 822 NW2d 747 (2012). Spectrum Health Hosp v Farm Bureau Mut Ins Co of Mich, 492 Mich 503, 515; 821 NW2d 117 (2012). Id. Id. at 534, citing Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). MCL 691.1405. This is contrary to the Court of Appeals’ observation in Fairley that “the text of the statute makes no mention of governmental immunity” and “rather than precluding the filing of suit against the state... establishes procedures for doing so.” Fairley, unpub op, at 2. McCahan, 492 Mich at 746; relied on in Zelek v Michigan, unpublished opinion per curiam of the Court of Appeals, issued October 16, 2012 (Docket No. 305191). Stone v Mich State Police, unpublished opinion per curiam of the Court of Appeals, issued July 8, 2014 (Docket No. 314848), p 7. McCahan, 492 Mich at 744 n 24; see Rowland v Washtenaw Co Rd Comm., 477 Mich 197, 212; 731 NW 2d (2007) (stating that “additional reasons ... for requiring notice [in cases involving governmental immunity] ... include[]... creating [monetary] reserves ... reducing the uncertainty of the extent of future demands, or even to force a claimant to an early choice regarding how to proceed”). Moreover, as this Court stated in Rowland, common sense counsels in favor of this outcome, given that “the Legislature is not even required to provide [any] exception to governmental immunity, it surely has the authority to allow such suits only upon compliance with rational limits.” Id. at 212. MCL 600.6431(1) and (3). Again, Fairley and Stone present questions of the adequacy of notice in a governmental immunity case. Thus, and contrary to both Court of Appeals opinions, the outcome of these cases is entirely separate from the analysis on statutory notice provisions in medical malpractice actions found in Tyra v Organ Procurement Agency of Mich, 302 Mich App 208 (2013), oral argument on application granted 497 Mich 910 (2014); compare Costa v Community Emergency Med Servs, Inc, 475 Mich 403; 716 NW2d 236 (2006) (involving a medical malpractice claim against defendants entitled to governmental immunity).
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KELLY, J. This interlocutory appeal concerns whether a defendant charged with reckless driving causing death is entitled to a jury instruction on the misdemeanor lesser offense of moving violation causing death, notwithstanding the Legislature’s prohibition against such an instruction. Ordinarily, statutory law entitles criminal defendants to instructions on necessarily included lesser offenses when the facts at issue warrant such instructions. Here, because the Legislature specifically created an exception prohibiting an instruction on moving violation causing death where the charged offense is reckless driving causing death, and because the Legislature did not exceed its constitu tional authority in doing so, we hold that it was error for the circuit court to grant the defendant’s request to instruct the jury on moving violation causing death. We therefore reverse the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for further proceedings consistent with this opinion. Specifically, on remand, the circuit court shall enter an order vacating its ruling granting defendant’s request to instruct the jury on the misdemeanor lesser offense of moving violation causing death. In light of the clear legislative dictates of MCL 257.626(5), the circuit court is precluded from granting defendant’s request and providing such a jury instruction. I. FACTS AND PROCEDURAL HISTORY On the afternoon of March 2, 2012, defendant was driving his automobile at approximately 80 mph on a road with a posted speed limit of 35 mph. While changing lanes, defendant collided with another vehicle, which, in turn, struck a third vehicle that had been parked on the side of the road. The driver of the second vehicle was killed in the collision. Consequently, defendant was charged with reckless driving causing death under MCL 257.626(4). Prior to trial, defense counsel filed a motion in limine, requesting that the circuit court instruct the jury on the misdemeanor lesser offense of committing a moving violation causing death. Despite the explicit prohibition in MCL 257.626(5) against such an instruction, the circuit court granted the motion, concluding that moving violation causing death is a necessarily included lesser offense of reckless driving causing death and, therefore, MCL 257.626(5) violates the doctrine of separation of powers under Const 1963, art 3, § 2. The prosecution appealed, and the Court of Appeals affirmed in a split published opinion. The majority held that MCL 257.626(5) is constitutionally infirm because it violates both the separation of powers and a criminal defendant’s fundamental due process right to a trial by jury. Noting the general rule that a jury may acquit a defendant of the charged offense and instead find him guilty of a lesser offense, the majority first concluded that it is a violation of the separation of powers for the Legislature to prohibit the courts from instructing the jury on a necessarily included lesser offense. Because MCL 257.626(5) impermissibly precludes an instruction on moving violation causing death, which “by definition” is a necessarily included lesser offense of reckless driving causing death, the majority held the statutory prohibition to be unconstitutional. The majority explained that because the Legislature’s sole function is to create substantive law whereas the Supreme Court has exclusive rulemaking authority in matters of practice and procedure, effectuating the right to a properly instructed jury is exclusively within the domain of the judiciary. Therefore, by prohibiting courts from instructing juries on the necessarily included lesser offense of moving violation causing death, the Legislature, via MCL 257.626(5), unconstitutionally infringed the judiciary’s authority to establish court practice and procedure. Alternatively, the majority concluded that MCL 257.626(5) could likewise be invalidated as an unconsti tutional deprivation of a defendant’s right to a trial by a properly instructed jury. The majority observed that although MCL 257.626(5) plainly prevents the court from instructing the jury on the lesser offense of moving violation causing death, the statute does not bar or otherwise restrict a judge sitting as fact-finder from finding a defendant guilty of that lesser offense. The majority reasoned that, had the Legislature intended to limit a judge’s consideration of moving violation causing death, it could have easily included language to that effect. Because a criminal defendant has no right to a bench trial unless the prosecutor and judge agree, MCL 257.626(5) places a criminal defendant in the position of compromising one right in favor of another, namely, a criminal defendant must relinquish his constitutional right to a trial by jury in order to permit the fact-finder to consider the lesser offense of moving violation causing death. We granted the prosecution’s interlocutory application for leave to appeal, directing the parties to brief the following issues: (1) whether a legislative provision barring consideration of a necessarily included lesser offense violates the separation of powers doctrine, Const 1963, art 3, § 2; (2) whether MCL 257.626(5) violates a defendant’s right to a jury trial by foreclosing a jury instruction on a lesser offense; and (3) whether MCL 257.601d is a necessarily included lesser offense of MCL 257.626(4).[ ] II. STANDARD OF REVIEW The prosecution contends that the circuit court erred by granting defendant’s request to instruct the jury on the misdemeanor lesser offense of moving violation causing death. We review de novo a claim of instructional error involving a question of law. However, a circuit court’s decision as to whether a requested lesser-included-offense instruction is applicable under the facts of a particular case will only be reversed upon a finding of an abuse of discretion. An abuse of discretion occurs when the circuit court chooses an outcome that falls outside the range of principled outcomes. Before addressing any alleged instructional error by the circuit court, however, we first consider whether a defendant is entitled to a jury instruction on the offense of moving violation causing death despite the statutory prohibition set forth in MCL 257.626(5). We review this and other questions of law de novo. III. ANALYSIS In determining whether the circuit court erred by granting the request to instruct the jury on the misdemeanor lesser offense of moving violation causing death, we begin by reviewing the common law and statutory basis for lesser offense instructions, after which we will address the extent to which this review affects the construction of the reckless driving causing death and moving violation causing death provisions. A. PROPRIETY OF LESSER-INCLUDED-OFFENSE INSTRUCTIONS At common law, the general rule of lesser included offenses was that when an indictment charged an offense which included within it another less offense or one of a lower degree, the defendant, though acquitted of the higher offense, might be convicted of the less. This rule, however, was subject to the qualification, that upon an indictment for a felony, the defendant could not be convicted of a misdemeanor.[ ] This common-law rule has since been legislatively modified and appears in what is now MCL 768.32(1), which provides as follows: Except as provided in subsection (2), upon an indictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense.[ ] Reduced to its simplest terms, when a defendant is charged with an offense “consisting of different degrees,” the factfinder may, consistent with the statutory text, acquit the defendant of the charged offense and find him of her “guilty of a degree of that offense inferior to that charged in the indictment. .. In People v Cornell, this Court considered what crimes constitute lesser or “inferior” offenses within the meaning of MCL 768.32(1). After reviewing the dissonant approaches to lesser-included-offense instructions articulated throughout our jurisprudence, this Court noted that “the word ‘inferior’ in the statute does not refer to inferiority in the penalty associated with the offense, but, rather, to the absence of an element that distinguishes the charged offense from the lesser offense.” On this basis, this Court concluded that a defendant is entitled to a lesser offense instruction only if that lesser offense is necessarily included in the greater offense; that is, the offense must be committed as part of the greater offense insofar as it would be “impossible to commit the greater offense without first committing the lesser offense.” Cornell thus interpreted the legislative prerogative contained in MCL 768.32(1)—that an included-inferior-offense instruction may be appropriate upon request—as limited to necessarily included lesser offenses only; it foreclosed consideration of cognate lesser offenses, which, in the absence of adequate notice, may violate a defendant’s fundamental due process rights. Under Cornell, then, the rule of lesser included offenses is simple: pursuant to MCL 768.32(1), the court must first determine whether an offense is necessarily included, which requires a comparison of the elements of the offenses, and if so, the court must then determine whether an instruction is warranted on the facts of a particular case by examining whether “the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support [the instruction].” As a corollary of this conclusion, Cornell returned MCL 768.32(1) to its original construction as given by this Court in Hanna-, consideration of cognate lesser offenses is not permitted and the right to an instruction on a necessarily included lesser offense turns on whether “the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support [the instruction].” In so doing, this Court noted the separation of powers concerns inherent in its earlier caselaw permitting instructions on cognate offenses: to interpret MCL 768.32(1) as permitting instruction on cognate offenses is not a proper exercise of Supreme Court authority to determine rules of practice and procedure. While this Court exclusively retains the authority and duty to prescribe general rules that “establish, modify, amend, and simplify the practice and procedure in all courts of this state,” it cannot be disputed that “enact[ing] court rules that establish, abrogate, or modify the substantive law” transcends the limits of that authority. Indeed, “matters of substantive law are left to the Legislature.” And because “[determining what charges a jury may consider does not concern merely the ‘judicial dispatch of litigation,’ ” MCL 768.32(1) thus concerns a matter of substantive law and, consequently, courts may not promulgate procedural rules contrary to statutory law governing lesser-included-offense instructions, but are instead required to adhere to the legislative dictates. B. RECKLESS DRIVING CAUSING DEATH AND MOVING VIOLATION CAUSING DEATH Defendant was charged with reckless driving causing death pursuant to MCL 257.626(4). The reckless driving statute, MCL 257.626, provides in relevant part as follows: (2) Except as otherwise provided in this section, a person who operates a vehicle upon a highway or a frozen public lake, stream, or pond or other place open to the general public, including, but not limited to, an area designated for the parking of motor vehicles, in willful or wanton disregard for the safely of persons or property is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both. (4) Beginning October 31, 2010,[ ] a person who operates a vehicle in violation of subsection (2) and by the operation of that vehicle causes the death of another person is guilty of a felony punishable by imprisonment for not more than 15 years or a fine of not less than $2,500.00 or more than $10,000.00, or both. The judgment of sentence may impose the sanction permitted under section 625n. If the vehicle is not ordered forfeited under section 625n, the court shall order vehicle immobilization under section 904d in the judgment of sentence. (5) In a prosecution under subsection (4), the jury shall not be instructed regarding the crime of moving violation causing death. Taken together, then, these provisions demonstrate the Legislature’s intent that a person is guilty of reckless driving causing death, a 15-year felony, if that person “operates a vehicle ... [in willful or wanton disregard for the safety of persons or property] and by the operation of that vehicle causes the death of another person. ...” Moreover, in a prosecution for reckless driving causing death, “the jury shall not be instructed regarding the crime of moving violation causing death.” Despite these plain legislative dictates, the circuit court granted defendant’s request that the jury be instructed on the misdemeanor lesser offense of moving violation causing death, which, in turn, provides as follows: (1) A person who commits a moving violation that causes the death of another person is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $2,000.00, or both. (3) This section does not prohibit the person from being charged with, convicted of, or punished for any other violation of law. (4) As used in this section, “moving violation” means an act or omission prohibited under this act or a local ordinance substantially corresponding to this act that involves the operation of a motor vehicle, and for which a fine may be assessed.[ ] IV APPLICATION Assuming, based on the record concession, that moving violation causing death indeed constitutes a necessarily included lesser offense of reckless driving causing death, we nevertheless conclude that the circuit court erred in granting the request that the jury be instructed on the misdemeanor lesser offense of moving violation causing death. MCL 768.32(1) sets forth the general rule that a defendant is entitled to have the jury instructed on necessarily included lesser offenses. MCL 257.626(5), in turn, sets forth a clear exception to this general rule: when a defendant is charged with reckless driving causing death, “the jury shall not be instructed regarding the crime of moving violation causing death.” As Cornell indicates, MCL 768.32(1) reflects both the Legislature’s abolition of the common-law misdemeanor restriction as well as its proscription against consideration of cognate lesser offenses. As Cornell further indicates, this legislative modification does not impermissibly infringe this Court’s constitutional authority to enact rules governing practice and procedure, because “[djetermining what charges a jury may consider . .. concerns a matter of substantive law.” Just as modifying the common-law rule is a permissible exercise of legislative authority under Cornell, we conclude that, by extension, so too is creating a substantive exception to that rule. Notwithstanding this Court’s explicit statements to the contrary, the Court of Appeals interprets Cornell to “support” its conclusion that “determining what instructions should be given to the jury is exclusively within the judiciary’s role.” The Court of Appeals opinion similarly asserts that “[c]orrectly instructing the jury ... is a fundamental requirement of fair and proper administration of justice.” Yet the two cases upon which the Court of Appeals relies in support of this proposition—People v Murray and People v Townes —contain no such language nor do they somehow suggest that a criminal defendant has an unfettered right to have the jury instructed on a lesser included offense or that such instructions are within the exclusive domain of the judiciary. At most, these cases merely reaffirm the unexceptional legal premise that a judge has a duty to accurately instruct the jury regarding the “law applicable to the facts,” irrespective of whether a proper request for or objection to those instructions has been made. Contrary to the Court of Appeals’ assertion, MCL 257.626(5) is not a matter of practice and procedure, and, consequently, there can be no violation of separation of powers simply because a necessarily included lesser offense exists and the Legislature has acted within its constitutional authority by creating a substantive exception that prohibits or otherwise limits the jury’s consideration of that lesser offense. Nevertheless, defendant also argues that his Sixth Amendment right to a jury trial requires an instruction on moving violation causing death. However, the United States Supreme Court has not identified any requirement that a jury must consider lesser included offenses when deciding whether to convict on the charged of fense. While the United States Supreme Court has ruled that, in a capital case, the jury must have the opportunity to convict on a lesser included offense, this holding has been limited to capital offenses. Except within this limited circumstance, the United States Supreme Court has expressly declined to rule on whether there is a constitutional entitlement to have the jury consider lesser included offenses. Neither does the fact that MCL 257.626(5) is silent in the context of a judge sitting as finder of fact at a bench trial alter our conclusion. As stated, the Legislature made a policy decision that the jury may not be instructed on the lesser offense of moving violation causing death when the defendant is on trial for reckless driving causing death. The trial judge has a duty to instruct the jury “as to the law applicable to the case,” including lesser included offenses, and MCL 257.626(5) presents one such law applicable to the charge of reckless driving causing death. Furthermore, there is logical connection between the jury being instructed “as to the law applicable to the case,” MCL 768.29, and the jury finding guilt based on those instructions. That is, by precluding the jury from being instructed on the crime of moving violation causing death, the Legislature was essentially precluding the jury from convicting a criminal defendant of that lesser offense. While jurors are not presumed to know the law applicable to a case, Michigan law presumes that a trial judge sitting as finder of fact is “aware of lesser-included offenses without the need for instruction.” Conversely, the judge must also be aware when (as here) it is not appropriate to consider lesser included offenses. As a result, the Legislature did not need to provide an explicit limitation on a judge acting as the finder of fact when enacting its exception to the general rule governing lesser included offenses. To interpret MCL 257.626(5) as precluding the lesser offense instruction in either a jury trial or bench trial is therefore consistent with the general purpose of MCL 257.626(5): to eliminate the possibility that a defendant charged with reckless driving causing could be convicted of moving violation causing death. For these reasons, we agree with the Court of Appeals dissenting opinion, which explained that “[g]iven the clear intent of the Legislature to forbid consideration of the lesser misdemeanor offense of moving violation causing death when a defendant has been charged with reckless driving causing death, a judge trying a case without a jury would surely understand that he or she could not convict the defendant of the lesser offense.” As a result of defendant’s charge of reckless driving causing death, MCL 257.626(5) barred an instruction on the misdemeanor lesser offense of moving violation causing death. This legislative enactment does not run afoul of the separation of powers because, consistent with Cornell, MCL 257.626(5) is a substantive rule of law and is thus within the domain of the Legislature. Because defendant was statutorily precluded from having the jury consider the lesser offense of moving violation causing death, we therefore hold that the circuit court erred by granting the requested instruction. V CONCLUSION We conclude that the circuit court erred by granting defendant’s request that the jury be instructed on moving violation causing death. Defendant was charged with the greater offense of reckless driving causing death and, as such, was precluded under MCL 257.626(5) from receiving an instruction on the misdemeanor lesser offense of moving violation causing death. We therefore reverse the judgment of the Court of Appeals and remand this case to the circuit court for further proceedings, including entry of an order vacating its ruling granting defendant’s request to instruct the jury on the misdemeanor lesser offense of moving violation causing death. Young, C.J., and Markman, Zahra, and McCormack, JJ., concurred with KELLY, J. MCL 257.626(4). MCL 257.601d. MCL 257.626(5). MCL 768.32(1); People v Cornell, 466 Mich 335; 646 NW2d 127 (2002). People v Jones, 302 Mich App 434; 839 NW2d 51 (2013). Id. at 439. Id. at 441, 442, citing People v Cornell, 466 Mich 335, 349; 646 NW2d 127 (2002). Id. at 440, citing McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999). See MCL 763.3 and MCR 6.401. Id. at 443. People v Jones, 495 Mich 905 (2014). People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006). Cornell, 466 Mich at 352-353. People v Musser, 494 Mich 337, 348; 835 NW2d 319 (2013). People v Kowalski, 489 Mich 488, 497; 803 NW2d 200 (2011). Because both parties have conceded that moving violation causing death is, in fact, a necessarily included lesser offense of reckless driving causing death—as opposed to a cognate offense—we will proceed on this assumption, analyzing this case in light of that concession. We note, however, that even if moving violation causing death does not constitute a necessarily included lesser offense of reckless driving causing death, the result would nevertheless the same because, as will be discussed later in the opinion, MCL 768.32(1) does not permit cognate lesser offense instructions. See People v Cornell, 466 Mich 335, 359; 646 NW2d 127 (2002). Hanna v People, 19 Mich 316, 318 (1869). Significantly, no longer does the rule preclude a misdemeanor from constituting a lesser included offense of a felony but instead authorizes a conviction “for any substantive offense included in the offense charged, without reference to the fact that one was a felony and the other a misdemeanor ....” Hanna, 19 Mich at 322. We note that when the charged offense involves a major controlled substance, the rules pertaining to lesser included offenses are different. MCL 768.32(2) states: (2) Upon an indictment for an offense specified in section 7401(2)(a)(¿) or (ii) or section 7403(2)(a)(i) or (ii) of the public health code, Act No. 368 of the Public Acts of 1978, being sections 333.7401 and 333.7403 of the Michigan Compiled Laws, or conspiracy to commit 1 or more of these offenses, the jury, or judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment but may find the accused guilty of a degree of that offense inferior to that charged in the indictment only if the lesser included offense is a major controlled substance offense. A jury shall not he instructed as to other lesser included offenses involving the same controlled substance nor as to an attempt to commit either a major controlled substance offense or a lesser included offense involving the same controlled substance. The jury shall be instructed to return a verdict of not guilty of an offense involving the controlled substance at issue if it finds that the evidence does not establish the defendant’s guilt as to the commission of a major controlled substance offense involving that controlled substance. A judge in a trial without a jury shall find the defendant not guilty of an offense involving the controlled substance at issue if the judge finds that the evidence does not establish the defendant’s guilt as to the commission of a major controlled substance offense involving that controlled substance. In People v Binder (On Remand), 215 Mich App 30; 544 NW2d 714 (1996), the Court of Appeals held unconstitutional the provisions of MCL 768.32(2) that limit consideration of the lesser offense and juiy instruction in cases involving a major controlled substance offense as a violation of the separation of powers doctrine. This Court, however, vacated that portion of the Court of Appeals opinion as unnecessary to the resolution of that case. People v Binder, 453 Mich 915 (1996). 466 Mich 335. Id. at 354, quoting People v Torres (On Remand), 222 Mich App 411, 419-420; 564 NW2d 149 (1997) (citation and quotation marks omitted). Id. at 361; People v Hendricks, 446 Mich 435; 521 NW2d 546 (1994). See Cornell, 466 Mich at 353-355. Indeed, “cognate” lesser offenses are those that share some common elements, and are of the same class or category as the greater offense, but likewise contain additional elements not found in the greater offense. See also Hendricks, 446 Mich at 443. Accordingly, failure to provide a defendant with adequate notice that he is being charged with a cognate offense may deprive the defendant of the opportunity to defend himself, since he would not have had notice of all the elements of the offense against which he was required to defend. In contrast, a defendant always has adequate notice that he might be charged with necessarily included lesser offenses, which contain no additional elements beyond those contained in the principal charge. Cornell, 466 Mich at 357. Id. at 357. Const 1963, art 6, § 5. McDougall, 461 Mich at 27. Cornell, 466 Mich at 353. See also People v Glass (After Remand), 464 Mich 266, 281; 627 NW2d 261 (2001); McDougall, 461 Mich at 27. Cornell, 466 Mich at 353, quoting McDougall, 461 Mich at 30. As stated, defendant’s alleged offense occurred on March 2, 2012. MCL 257.601d. Id. at 354. Id. at 353. Indeed, we note that, as a substantive exception to the rule the Legislature articulated in MCL 768.32(1), MCL 257.626(5) has the effect of reestablishing the common-law rule with regard to the crimes of reckless driving causing death (a felony) and moving violation causing death (a misdemeanor). See Hanna, 19 Mich at 318 (“[U]pon an indictment for a felony, the defendant could not be convicted of a misdemeanor.”). Jones, 302 Mich App at 442. Id. at 441. People v Murray, 72 Mich 10, 16; 40 NW 29 (1888); People v Townes, 391 Mich 578, 587; 218 NW2d 136 (1974). Murray, 72 Mich at 16. Beck v Alabama, 447 US 625, 638; 100 S Ct 2382; 65 L Ed 2d 392 (1980). Id. at 638 n 14. We recognize that defendant structures his constitutional argument as a violation of his Sixth Amendment right to a trial by jury whereas Beck dealt with violations of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. See Smith v Spisak, 558 US 139, 159; 130 S Ct 676; 175 L Ed 2d 595 (2010) (“Our concern in Beck was that presenting the jury with only two options— death or no punishment—introduced a risk of arbitrariness and error into the deliberative process that the Constitution could not abide in the capital context.”). However, defendant’s failure to support his Sixth Amendment argument with citation of helpful authority deprives us of any meaningful opportunity to assess whether the constitutional entitlement announced in Beck should be extended to the noncapital context. MCL 768.29. People v Cazal, 412 Mich 680, 686-687; 316 NW2d 705 (1982). Cf. People v Ellis, 468 Mich 25, 28; 658 NW2d 142 (2003) (noting that a judge may not “reward!] a defendant for waiving a jury trial by ‘finding’ him not guilty of a charge for which an acquittal is inconsistent with the court’s factual findings” and convicting him of a lesser offense). People v Jones, 302 Mich App at 449 (K. E Kelly, J., dissenting). Although the defendant in this case challenges the propriety of MCL 257.626(5), the limitation on the lesser offense limits prosecutorial discretion as well: the Legislature chose, when enacting MCL 257.626(5), to require a prosecutor who charges a defendant with reckless driving causing death to pursue an all-or-nothing strategy. That is, if the prosecutor has a reasonable, but marginal case that the defendant acted “in willful or wanton disregard for the safety of persons or property,” the prosecutor cannot argue in the alternative that the jury must at least convict the defendant on the moving violation causing death offense to achieve some conviction. We respect this policy decision of the Legislature.
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BERNSTEIN, J. This case requires us to examine immunity under the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. We are specifically concerned with the application of the MMMA’s immunity provisions to individuals who are neither registered qualifying patients nor primary caregivers. See MCL 333.26424(g); MCL 333.26424(i). We hold that a defendant claiming that he or she is solely in the presence or vicinity of the medical use of marijuana is not entitled to immunity under MCL 333.26424(f) when the medical use of marijuana was not in accordance with the act. Nor is a defendant entitled to immunity under MCL 333.26424(f) when the defendant’s conduct goes beyond assisting with the use or administration of marijuana. However, we hold that “marihuana paraphernalia,” as that phrase is used in MCL 333.26424(g), includes items that are both specifically designed or actually employed for the medical use of marijuana. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the circuit court for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY Defendant Cynthia Mazur is the wife of David Mazur, who was himself both a registered qualifying patient and a registered primary caregiver for two medical marijuana patients. David Mazur grew marijuana in their marital home. Officers of the Holly Police Department, acting on a tip, searched the residence for marijuana. Marijuana plants, dried marijuana, and pipes with marijuana residue were found. In executing the search, an officer questioned defendant, who used the first-person plural pronoun “we” when describing the marijuana operation. Although the use of this pronoun led the officers to conclude that defendant was a participant in her husband’s marijuana operation, defendant maintains that her involvement was limited to writing the date of harvest for marijuana plants on several sticky notes. The Oakland County Prosecutor charged both defendant and David with marijuana-related offenses. In a separate proceeding, David pleaded guilty to one count of possession with intent to deliver less than five kilograms or fewer than 20 plants of marijuana, MCL 333.7401(2)(d)(iii), and one count of manufacturing less than five kilograms or fewer than 20 plants of marijuana, id. Defendant was charged with the same two offenses. Defendant moved to dismiss the charges against her citing the immunity provision of the MMMA, MCL 333.26424. The circuit court held that MCL 333.26424(g) did not apply because there was no evidence that defendant provided marijuana paraphernalia to either a registered qualifying patient or a caregiver; the circuit court also held that MCL 333.26424(f) did not apply because David’s use of medical marijuana was not in compliance with the MMMA. The Court of Appeals affirmed. People v Mazur, unpublished opinion per curiam of the Court of Appeals, issued April 1, 2014 (Docket No. 317447). Defendant then 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, asking the parties to address: [Wlhether the defendant is entitled to immunity under § 4 of the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., specifically MCL 333.26424(g) and/or MCL 333.26424(i), where [defendant’s] spouse was a registered qualifying patient and primary caregiver under the act, but his marijuana-related activities inside the family home were not in full compliance with the act. [People v Mazur, 497 Mich 883 (2014).] II. STANDARD OF REVIEW Questions of statutory interpretation are reviewed de novo. Michigan v McQueen, 493 Mich 135, 146-147; 828 NW2d 644 (2013). Statutes enacted by the Legislature are interpreted in accordance with legislative intent; similarly, statutes enacted by initiative petition are interpreted in accordance with the intent of the electors. Id. at 147. We begin with an examination of the statute’s plain language, which provides “the most reliable evidence” of the electors’ intent. See Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999), quoting United States v Turkette, 452 US 576, 593; 101 S Ct 2524; 69 L Ed 2d 246 (1981). This Court reviews a trial court’s findings of fact for clear error. Miller-Davis Co v Ahrens Constr, Inc, 495 Mich 161, 172-173; 848 NW2d 95 (2014). A factual finding is clearly erroneous if it either lacks substantial evidence to sustain it, or if the reviewing court is left with the definite and firm conviction that the trial court made a mistake. Id. III. IMMUNITY UNDER THE MICHIGAN MEDICAL MARIHUANA ACT The MMMA was enacted by voter referendum in 2008 and allows for the medical use of marijuana to treat or alleviate the pain associated with a debilitating medical condition. Although the Legislature has since amended the MMMA by enacting 2012 PA 512 and 2012 PA 514, the conduct at issue occurred before the date these amendments took effect. Therefore, we consider only the MMMA as originally enacted. Section 4 of the MMMA concerns immunity. A qualifying patient who receives a registry identification card is entitled to immunity, provided that certain conditions are met. MCL 333.26424(a). A primary caregiver who receives a registry identification card is entitled to the same protection. MCL 333.26424(b). Both Subsections (a) and (b) state that this protection only applies to the “medical use of marihuana in accordance with this act.” MCL 333.26424(a) and (b). “Medical use” is defined as: [T]he 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(e), as enacted by 2008 IL 1.] Two additional provisions of the MMMA provide immunity to people who are neither registered qualifying patients nor primary caregivers: MCL 333.26424(g) and MCL 333.26424(i). These are the two provisions under which defendant claims immunity. Section 4(g) states: A person 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 providing a registered qualifying patient or a registered primary caregiver with marihuana paraphernalia for purposes of a qualifying patient’s medical use of marihuana. [MCL 333.26424(g) (emphasis added).] Section 4(i) states: A person 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, solely for being in the presence or vicinity of the medical use of marihuana in accordance with this act, or for assisting a registered qualifying patient with using or administering marihuana. [MCL 333.26424(i) (emphasis added).] IV APPLICATION Defendant claims entitlement to the immunity defense under both §§ 4(g) and 4(i) of the MMMA. Because we agree with the Court of Appeals that defendant is not entitled to immunity under § 4(i), we begin our analysis with an examination of that section. A. MCL 333.264246) Section 4(i) of the MMMA offers two distinct types of immunity, as evidenced by the use of the disjunctive “or.” A person may claim immunity either: (1) “for being in the presence or vicinity of the medical use of marihuana in accordance with this act,” or (2) “for assisting a registered qualifying patient with using or administering marihuana.” MCL 333.26424(i). These clauses are also preceded and modified by the adverb “solely,” which places a limitation on both claims of immunity. We hold that defendant is not entitled to either type of immunity under § 4(i) of the MMMA. As to the first immunity provision in § 4(i), a person is only entitled to immunity when the underlying medical use of marijuana is in accordance with the MMMA. Although we decline to state whether defendant’s husband’s convictions should have been persuasive in deciding whether defendant was eligible for immunity, we agree with the Court of Appeals that the evidence showed that the marijuana operation was not in accordance with the MMMA. Defendant argues that she has no control over the acts of another autonomous being, and that if one is merely limited to being present, one is necessarily unable to intervene. But to read § 4(i) in the manner that defendant requests would render the phrase “in accordance with this act” superfluous, and “ [t]his 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.’ ” People v Cunningham, 496 Mich 145, 154; 852 NW2d 118 (2014), quoting State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002). We recognize the apparent inequity of holding one individual responsible for another’s wrongdoing; however, the plain language of the statute does not allow for another reading. This Court has previously addressed the second claim of immunity in § 4(i): Notably, § 4(i) does not contain the statutory term “medical use,” but instead contains two of the nine activities that encompass medical use: “using” and “administering” marijuana.... In this context, the terms “using” and “administering” are limited to conduct involving the actual ingestion of marijuana. Thus, by its plain language, § 4(i) permits, for example, the spouse of a registered qualifying patient to assist the patient in ingesting marijuana, regardless of the spouse’s status. [McQueen, 493 Mich at 158 (emphasis added).] “Medical use”, as defined in former § 3(e), is a term that encompasses nine different actions. Because the second type of immunity available under § 4(i) refers generically to “using and administering” marijuana and not to the statutorily defined “medical use” of marijuana, this Court read § 4(i) narrowly in McQueen. Because the defendants in McQueen were engaged in the transfer, delivery, and acquisition of marijuana— activities that are found under the umbrella of “medical use”—but were not engaged in the mere use and administration of marijuana, this Court found that they were not entitled to immunity under § 4(i). Id. Similarly, defendant here was not merely assisting her husband with conduct involving the actual ingestion of marijuana; instead, she assisted him with the cultivation of marijuana. Because assisting in the cultivation of marijuana does not constitute assistance with “using” or “administering” marijuana, defendant cannot lay claim to immunity under this provision of the MMMA. B. MCL 333.26424(g) Under § 4(g) of the MMMA, an individual may claim immunity “for providing a registered qualifying patient or a registered primary caregiver with marihuana paraphernalia for purposes of a qualifying patient’s medical use of marihuana.” MCL 333.26424(g). At issue here is the definition of the term “marihuana paraphernalia,” which is not explicitly defined in the MMMA. In parsing this term, the Court of Appeals adopted the definition of “drug paraphernalia” used in the Public Health Code, MCL 333.1101 et seq.: [A]ny equipment, product, material, or combination of equipment, products, or materials, which is specifically designed for use in planting; propagating; cultivating; growing; harvesting; manufacturing; compounding; converting; producing; processing; preparing; testing; analyzing; packaging; repackaging; storing; containing; concealing; injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance[.] [MCL 333.7451 (emphasis added).] The Court of Appeals reasoned that it was appropriate to refer to this definition, given that the Public Health Code and the MMMA are in pari materia, because both “restrict the use of controlled substances.” Mazur, unpub op at 3. In particular, the Court of Appeals focused on the phrase “specifically designed for use in,” which modifies the list of activities that follows. As an initial matter, we note that the Court of Appeals erred by relying on the doctrine of in pari materia to determine the meaning of “marihuana paraphernalia.” Under the doctrine, statutes that relate to the same subject or that share a common purpose should, if possible, be read together to create a harmonious body of law. People v Harper, 479 Mich 599, 621; 739 NW2d 523 (2007). An act that incidentally refers to the same subject is not in pari materia if its scope and aim are distinct and unconnected. Palmer v State Land Office Bd, 304 Mich 628, 636; 8 NW2d 664 (1943). Here, the MMMA and the Offenses and Penalties provisions of the Controlled Substances article of the Public Health Code have two diametrically opposed purposes. The MMMA’s purpose is to allow medical marijuana use for certain individuals under limited circumstances, whereas the purpose of the Offenses and Penalties provisions is to criminalize marijuana use and related activities. See MCL 333.7401. The Court of Appeals was wrong to state that these two provisions “relate to the same subject, i.e., restrict the use of controlled substances[.]” The aim of each statute is distinct, and indeed they are contrary to one another. Furthermore, MCL 333.7451 begins with an important qualifier: “As used in sections 7453 to 7461 and section 7521, ‘drug paraphernalia’ means . ...” By specifically limiting the applicability of this definition to certain statutory provisions, the Legislature expressed a clear intent that the definition should not be applied elsewhere. Application of the in pari materia doctrine would, therefore, be contrary to legislative intent. This Court held similarly in Woodard v Custer, 476 Mich 545; 719 NW2d 842 (2006), which addressed the meaning of the phrase “board certified” in MCL 600.2169. The Legislature did not specifically define “board certified” in MCL 600.2169. Plaintiffs argued that the Court should read MCL 600.2169 in pari materia with the Public Health Code’s definition, MCL 333.2701(a). This Court disagreed given that “the Legislature specifically limited the use of the Public Health Code’s definition of ‘board certified’ to the Public Health Code ....” Woodard, 476 Mich at 563. Because the Legislature specifi cally limited the use of the Public Health Code’s definition of “drug paraphernalia” to certain provisions of the Public Health Code, it would be antithetical to the interpretive enterprise to apply the definition of “drug paraphernalia” beyond the scope prescribed. Because we decline to rely on the definition of “drug paraphernalia” set forth in the Public Health Code to inform our understanding of the phrase “marihuana paraphernalia” as used in the MMMA, we turn instead to other conventional means of statutory interpretation. Generally, when a word used in a statute is not specifically defined, it bears “its common and approved usage of the language.” MCL 8.3a. Accordingly, in order to decipher what the electors meant by “marihuana paraphernalia,” we turn to the dictionary. “Marihuana” is quite well understood in this context. “Paraphernalia” is defined as “equipment, apparatus, or furnishings used in or necessary for a particular activity.” Random House Webster’s College Dictionary (2005). Nothing in this definition states that a specific design must be intended. Because “[t]he law is not properly read as a whole when its words and provisions are isolated and given meanings that are independent of the rest of its provisions,” Lansing Mayor v Pub Serv Comm, 470 Mich 154, 168; 680 NW2d 840 (2004), we must also read the phrase “marihuana paraphernalia” in light of the rest of § 4(g). In particular, “marihuana paraphernalia” must be read in light of the adjacent phrase “medical use of marihuana.” Read as a whole, the statute states that “marihuana paraphernalia” is employed for the “medical use” of marijuana. As previously noted, “medical use” is defined by statute, and includes several activities. When modified by the expansive definition of “medical use,” it becomes clear that “marihuana paraphernalia” cannot be so limited as to only include those items that are specifically designed for the medical use of marijuana. First, the phrase “for purposes of a qualifying patient’s medical use of marihuana” indicates that an item may or may not be “marihuana paraphernalia,” depending on the use to which it is put. Second, “medical use” is a broader term than mere use or administration. As discussed in McQueen, the drafters could easily have chosen the narrower language we see in § 4(i), but they did not. “Medical use” refers to activities as broad as transportation, internal possession, and cultivation. To only include items that were specifically designed for the medical use of marijuana would be to turn the statutorily defined phrase “medical use” into meaningless surplusage. See, e.g., Robinson v Lansing, 486 Mich 1, 21; 782 NW2d 171 (2010) (explaining that “it is well established that ‘[i]n interpreting a statute, we [must] avoid a construction that would render part of the statute surplusage or nugatory’ ”) (citation omitted). Although one might conceive of paraphernalia that is specifically designed for the use or internal possession of marijuana, one is necessarily stymied when attempting to identify paraphernalia that is specifically designed for the cultivation of marijuana; surely a trowel that one uses for growing cherry tomatoes could also be employed in a marijuana operation and vice versa. The statutory definition of “medical use” is 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[.]” Former MCL 333.26423(e). The dissents point to the use of the phrase “relating to the administration of marihuana” to suggest that objects must be used to administer or ingest marijuana in order to be considered marihuana paraphernalia. But this reading conflates the more expansive definition of “medical use” with the narrower definition of use and administration. In McQueen, this Court outlined the difference between the mere “use” and “administration” of marijuana, which is “limited to conduct involving the actual ingestion of marijuana.” McQueen, 493 Mich at 158 (emphasis added). In contrast, this Court acknowledged that the definition of “medical use” was broader and incorporated activities such as “[t]he transfer, delivery, and acquisition of marijuana.” Id. Therefore, a qualifying patient’s transfer, delivery, acquisition, or cultivation of marijuana is a medical use according to a plain-language reading of the statute. The use of conventional means of statutory interpretation thus leads us to hold that “marihuana paraphernalia” applies both to those items that are specifically designed for the medical use of marijuana as well as those items that are actually employed for the medical use of marijuana. In this case, defendant provided her husband, who was both a qualifying patient and a registered caregiver, with sticky notes for the purpose of detailing the harvest dates of his plants. This activity constitutes the provision of “marihuana paraphernalia” because the objects were actually used in the cultivation or manufacture of marijuana. See former MCL 333.26423(e). The provision of sticky notes in this case therefore falls within the scope of § 4(g). The prosecution is therefore prohibited from introducing or otherwise relying on the evidence relating to defendant’s provision of marihuana paraphernalia—i.e., the sticky notes—as a basis for the criminal charges against defendant. If that is the only basis for criminal charges, then a successful showing under § 4(g) will result in the dismissal of charges. However, if there is additional evidence supporting criminal charges against defendant, nothing in § 4(g) prohibits the prosecution from proceeding on the basis of the remaining evidence. V CONCLUSION Although we hold that defendant is not entitled to immunity under § 4(i) of the MMMA, we conclude that the Court of Appeals erred in its interpretation of § 4(g) of the MMMA. We reverse the judgment of the Court of Appeals and remand to the circuit court for further proceedings consistent with this opinion. We do not retain jurisdiction. Kelly, McCormack, and Viviano, JJ., concurred with BERNSTEIN, J. Additionally, we directed the parties to address whether defendant was entitled to immunity when “[defendant’s husband’s] marijuana-related activities inside the family home were not in full compliance with the act.” Mazur, 497 Mich at 883 (emphasis added). It bears noting that traditional criminal defenses, such as challenges to the sufficiency of the evidence, are still available to defendant. . “Medical use” is now defined in MCL 333.26423(f). Article 7 of the Public Health Code, MCL 333.7101 et seq., concerns controlled substances. Part 74 of Article 7, MCL 333.7401 et seq., concerns controlled-substance offenses and penalties. A separate concurrence agreed with the majority on this point: We decline to impute the definition of “board certified” from MCL 333.2701(a) to MCL 600.2169 for several reasons. First, the Legislature made clear that the definition of “hoard certified” set forth in MCL 333.2701(a) applies only to the Public Health Code by prefacing it with the statement “As used in this part [of the Public Health Code] . . . ‘Board certified’ means . . . .” (Emphasis added.) Especially in light of such clear words of limitation, we must presume that the Legislature intended that the definition of “hoard certified” set forth in MCL 333.2701(a) would not be applied to other statutes using the same phrase. [Woodard, 476 Mich at 610-611 (Taylor, C.J., concurring) (alteration in original)]. “The statutory language must be read and understood in its grammatical context, unless it is clear that something different was intended.” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999). Nothing in the statute indicates that the words of this sentence are not meant to be read together as a single, grammatically linked unit. See note 3 of this opinion. The trial court’s contrary finding that “there is no evidence that she provided [marihuana paraphernalia] to a registered qualifying patient or registered caregiver” is clearly erroneous because elsewhere in its opinion the trial court refers to evidence that defendant’s husband was a registered caregiver. It is also belied by a letter from the Department of Licensing and Regulatory Affairs, admitted by stipulation of the parties, stating that defendant’s husband was a patient and a caregiver for two other patients. While § 4(g) grants immunity for “providing a registered qualifying patient or a registered primary caregiver with marihuana paraphernalia,” immunity does not extend under that provision to other conduct, such as the use of marijuana paraphernalia. Accordingly, even if § 4(g) prohibits the prosecution from relying on defendant’s provision of marihuana paraphernalia to her husband, § 4(g) does not necessarily exclude all references to the paraphernalia if the evidence supports the conclusion that defendant engaged in conduct for which she is not entitled to immunity under § 4(g). We deny leave to appeal with respect to defendant’s remaining issue because we are not persuaded that the question presented should be reviewed by this Court.
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Memorandum Opinion. Plaintiffs, a group of associations representing builders, contractors, and plumbers, filed suit against defendant, the city of Troy, claiming that defendant’s building department fees violated § 22 of the Single State Construction Code Act (CCA), MCL 125.1522, as well as a provision of the Headlee Amendment, Const 1963, art 9, § 31. The circuit court granted summary disposition to defendant, holding that the court lacked jurisdiction over the matter because plain tiffs had failed to exhaust the administrative procedure outlined in § 9b of the CCA, MCL 125.1509b. The plain language of MCL 125.1509b, however, provides that the director may conduct performance evaluations of defendant’s “enforcing agency” and does not provide any administrative procedure relative to the entity responsible for establishing fees pursuant to MCL 125.1522(1): “[t]he legislative body of a governmental subdivision.” Because the administrative proceedings in § 9b do not purport to provide the director with the authority to evaluate defendant’s legislative body, the circuit court erred by granting summary disposition to defendant on the basis of plaintiffs’ failure to exhaust their administrative remedies. We reverse the judgment of the Court of Appeals and remand this case to the circuit court for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY After several years of operating its building department at a deficit, defendant—which is a “governmental subdivision” within the meaning of the CCA — privatized the building department in July 2010. It entered into a contract with SafeBuilt Michigan, Inc., under which SafeBuilt assumed the duties of defendant’s building inspection department, which is the “enforcing agency” within the meaning of the CCA. On December 15, 2010, plaintiffs filed the instant complaint, seeking declaratory and injunctive relief. Plaintiffs claimed that the fees generated under the contractual arrangement with SafeBuilt produced “significant monthly surpluses” that were used to augment defendant’s general fund in violation of MCL 125.1522 and constituted an unlawful tax increase in violation of Const 1963, art 9, § 31. After discovery, plaintiffs moved for summary disposition under MCR 2.116(0(10), and defendant sought summary disposition under MCR 2.116(I)(2). After conducting a hearing, the circuit court granted summary disposition to defendant, ruling that the court did not have jurisdiction over plaintiffs’ lawsuit because plaintiffs had failed to exhaust their administrative remedies under § 9b of the CCA before filing their complaint. Plaintiffs appealed, arguing that they were entitled to proceed in circuit court without first seeking administrative action. The Court of Appeals affirmed, holding that because § 9b of the CCA provided an adminis trative procedure in which plaintiffs could have raised their claim, plaintiffs were required to exhaust that administrative procedure before proceeding to circuit court. Furthermore, the panel held that although plaintiffs’ complaint alleged a constitutional violation, plaintiffs were still required to exhaust their administrative remedies when the constitutional claim was intermingled with an issue properly before an administrative agency. We ordered and heard oral argument on whether to grant plaintiffs’ application for leave to appeal or take other preemptory action. II. STANDARD OF REVIEW We review de novo the grant or denial of a motion for summary disposition. Moreover, whether the circuit court has subject matter jurisdiction over a particular matter is a question of law that this Court reviews de novo. Additionally, to the extent that the resolution of this case involves questions of statutory interpretation, our review is also de novo. III. ANALYSIS The CCA creates a state construction code that governs innumerable aspects related to the construction, use, and occupation of residential and commercial buildings and structures. The CCA and the construc tion code “apply throughout the state,” and the CCA provides that, except as otherwise provided, the director is responsible for administering and enforcing both the CCA and the construction code. The language “except as otherwise provided”—an exception to the director’s plenary authority—permits governmental subdivisions to assume responsibility for administering and enforcing, as well as prosecuting violations of, the CCA and construction code. Plaintiffs contend that the transfer of building department monies to defendant’s general fund violates MCL 125.1522(1), which provides: The legislative body of a governmental subdivision shall establish reasonable fees to be charged by the governmental subdivision for acts and services performed by the enforcing agency or construction board of appeals under this act, which fees shall be intended to bear a reasonable relation to the cost, including overhead, to the governmental subdivision of the acts and services, including, without limitation, those services and acts as, in case of an enforcing agency, issuance of building permits, examination of plans and specifications, inspection of construction undertaken pursuant to a building permit, and the issuance of certificates of use and occupancy, and, in case of a board of appeals, hearing appeals in accordance with this act. The enforcing agency shall collect the fees established under this subsection. The legislative body of a governmental subdivision shall only use fees generated under this section for the operation of the enforcing agency or the construction board of appeals, or both, and shall not use the fees for any other purpose. [Emphasis added.] Defendant cites MCL 125.1509b as the basis of its claim that plaintiffs are required to exhaust their administrative remedies before proceeding to circuit court. This statutory provision provides in relevant part: (1) The director, as prescribed in this section, may conduct a performance evaluation of an enforcing agency to assure that the administration and enforcement of this act and the code is being done pursuant to either [MCL 125.1508a or MCL 125.1508b]. A performance evaluation may only be conducted either at the request of the local enforcing agency or upon the receipt of a written complaint. ... (2) When conducting a performance evaluation of an enforcing agency, the director may request that the local enforcing agency accompany the director or other state inspectors on inspections. The inspections shall be for the enforcement of this act and the code. The enforcing agency shall maintain all official records and documents relating to applications for permits, inspection records including correction notices, orders to stop construction, and certificates of use and occupancy. The enforcing agency shall make available for review all official records between 8 a.m. and 5 p.m. on business days. (3) ... The [State Construction Code Commission] may issue a notice of intent to withdraw the responsibility for the administration and enforcement of this act and the code from a governmental subdivision after receiving the results of a performance evaluation. The notice shall include the right to appeal within 30 business days after receipt of the notice of intent to withdraw the responsibility. [MCL 125.1509b (emphasis added).] The plain language of MCL 125.1509b provides that the director may conduct a “performance evaluation” of the enforcing agency—here, the City of Troy Building Inspection Department—to assure that the “administration and enforcement of this act and the code is being done pursuant to either [MCL 125.1508a or 125.1508b].” The administrative proceeding articulated in MCL 125.1509b is simply inapplicable to the entity identified in MCL 125.1522(1) as being responsible for establishing the fees to be charged for building department services—the “legislative body ” of the city of Troy. Defendant maintains that § 9b applies to the “entire city.” However, the Legislature made a clear distinction between the “enforcing agency” and the “governmental subdivision.” Under the definitional sections of the CCA, the “governmental subdivision” is the municipality that has assumed responsibility for code enforcement, whereas the “enforcing agency” is the governmental agency within the governmental subdivision that is responsible for code enforcement. Had the Legislature intended to permit the director to conduct a performance evaluation of the Troy City Council, it surely could have said so. We presume that the Legislature intended the meaning of the words used in the statute, and we may not substitute alternative language for that used by the Legislature. Thus, the plain language of § 9b indicates that it applies only to the “enforcing agency” and not the “legislative body of a governmental subdivision.” For that reason, the circuit court erred by concluding that plaintiffs were required to exhaust the administrative remedy in MCL 125.1509b. The judgment of the Court of Appeals is reversed, and the case is remanded to the circuit court for further proceedings consistent with this opinion. Young, C.J., and Markman, Kelly, Zahra, McCormack, Viviano, and Bernstein , JJ., concurred. The “director” is the director of the Department of Licensing and Regulatory Affairs or an authorized representative of the director. See MCL 125.1502a(q) and (r). MCL 125.1502a(v) provides: “Governmental subdivision” means a county, city, village, or township that, in accordance with [MCL 125.1508a or MCL 125.1508b], has assumed responsibility for administration and enforcement of this act and the code within its jurisdiction. Under the terms of the contract, SafeBuilt received 80% of the building department fees associated with its services, and defendant retained the remaining 20%. The contract provided that if the fees totaled more than $1 million in a fiscal year, SafeBuilt’s compensation would be reduced to 75% of the fees. MCL 125.1502a(t) provides: “Enforcing agency” means the governmental agency that, in accordance with [MCL 125.1508a or MCL 125.1508b], is responsible for administration and enforcement of the code within a governmental subdivision. The complaint alleges that defendant had retained $140,607.83 over a three-month period. Mich Ass’n of Home Builders v City of Troy, unpublished opinion per curiam of the Court of Appeals, issued March 13, 2014 (Docket No. 313688), p 4. Id. Mich Ass’n of Home Builders v City of Troy, 497 Mich 862 (2014). Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 205; 631 NW2d 733 (2001). Pohutski v City of Allen Park, 465 Mich 675, 681; 641 NW2d 219 (2002). MCL 125.1504(1) provides: The director shall prepare and promulgate the state construction code consisting of rules governing the construction, use, and occupation of buildings and structures, including land area incidental to the buildings and structures, the manufacture and installation of building components and equipment, the construction and installation of premanufactured units, the standards and requirements for materials to be used in connection with the units, and other requirements relating to the safety, including safety from fire, and sanitation facilities of the buildings and structures. MCL 125.1508a(l). MCL 125.1508b(l). MCL 125.1508b. MCL 125.1502a(v). MCL 125.1502a(t). Lash v Traverse City, 479 Mich 180, 189; 735 NW2d 628 (2007).
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ZAHRA, J. This case requires the Court to consider whether defendant lifeguard’s failure to intervene in the deceased’s drowning constituted “the proximate cause” of his death. While governmental agencies and their employees are generally immune from tort liability under the governmental tort liability act (GTLA), MCL 691.1401 et seq., MCL 691.1407(2)(c) provides an exception to this general rule when a governmental employee’s conduct is both (1) grossly negligent and (2) “the proximate cause” of an injury, which this Court interpreted to mean the “most immediate, efficient, and direct cause” of that injury in Robinson v Detroit. Plaintiff brought the instant suit against defendant, a governmental employee, and pleaded avoidance of governmental immunity by alleging that defendant’s grossly negligent behavior while life-guarding and resulting failure to rescue plaintiffs drowning son constituted the proximate cause of his death. Subsequently, defendant filed a motion for summary disposition on the ground of governmental immunity, but the trial court denied defendant’s motion. The Court of Appeals, in a split opinion, affirmed, concluding that a jury could reasonably find that defendant’s failure to intervene constituted the proximate cause of the deceased’s death. The Court of Appeals dissent instead concluded that defendant is immune from liability, because his actions were not the proximate cause, i.e., “the one most immediate, efficient, direct cause” of the deceased’s death, as is required to impose tort liability under MCL 691.1407(2) and Robinson. But for the applicable immunity statute, a question of fact may remain as to defendant’s liability for the deceased’s death. However, in light of the well-established principles of governmental immunity set forth by the Legislature and this Court, we agree with the Court of Appeals dissent that defendant is immune from tort liability. Applying this Court’s rationale in Robinson to the instant case, defendant’s failure to intervene in the deceased’s drowning cannot logically constitute the “most immediate, efficient, and direct cause” of his death. The causal connection between defendant’s failure to intervene and the deceased’s drowning is simply too tenuous for it to constitute the proximate cause of his death. In our view, it is readily apparent that the far more “immediate, efficient, and direct cause” of the deceased’s death was that which caused him to remain submerged in the deep end of the pool without resurfacing. That the reason for the deceased’s prolonged submersion in the water is unknown does not make that unidentified reason any less the proximate cause of his death. Accordingly, we hold that the trial court erred by denying summary disposition to defendant, because the exception to governmental immunity articulated in MCL 691.1407(2) is inapplicable in the instant matter. We therefore reverse in part the judgment of the Court of Appeals, and remand this case to the Barry Circuit Court for entry of an order granting summary disposition in favor of defendant. I. FACTS AND PROCEEDINGS The deceased, William Beals, a 19-year-old diagnosed with a learning disability and an unspecified level of autism, drowned on May 19, 2009, while swimming in a pool at the Michigan Career and Technical Institute (MCTI), a state residential facility providing vocational and technical training to students with disabilities. Beals and approximately 24 other disabled students were using the MCTI indoor swimming pool for a recreational swim. According to his mother, Beals was an “accomplished swimmer” who had been swimming independently for years. The only lifeguard on duty that evening was defendant William Harman, a certified lifeguard who was both an employee and student of MCTI. The record indicates that Harman suffers from attention deficit disorder. At some point during the recreational swim, Beals waded into the shallow end of the pool where he “surface dove” into the deep end and continued to swim underwater. He never resurfaced under his own power. There is no evidence in the record that Beals visibly struggled in the water or that Harman or any of the 24 other students in the pool area witnessed Beals in distress. Indeed, it was not until Beals had been underwater for approximately eight minutes that another student wearing goggles put his head underwater and noticed Beals’s body in the deep end of the pool next to the wall. This student pulled Beals from the bottom of the pool after making as many as three unsuccessful attempts to call for Harman’s attention. When Harman heard other students yelling for help, he raced to the deep end of the pool, removed Beals from the water, and attempted cardiopulmonary resuscitation (CPR) until other staff members arrived. Beals was then transported to a hospital where he was declared deceased. A subsequent autopsy revealed that the cause of Beals’s death was “drowning” and the manner of death was “accidental.” The underlying reason for Beals’s accidental drowning is unknown. On January 26, 2011, Beals’s mother, Theresa Beals, filed suit in Barry Circuit Court as the personal representative of Beals’s estate. Plaintiff sued both Harman and the State of Michigan, seeking economic and non-economic damages for the alleged wrongful death of her son. She accused the state (MCTI) of violating the Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq. and Harman of gross negligence. In proofs developed by plaintiff, students at MCTI criticized Harman’s attention to swimmers, describing him as “distracted” and indicating that he was talking to girls and playing with a football during the period in which Beals drowned. According to MCTI video surveillance footage of the events preceding the discovery of Beals’s body, Harman did not once sit in the lifeguard observation stand, which, according to a report penned by plaintiffs expert, would have given Harman the best view of the pool, nor did Harman notice or observe that Beals had slipped under the water until the students called for his attention about eight minutes after Beals submerged in the deep end. Plaintiff does not allege, nor does the video indicate, that Harman caused Beals to enter the pool or that he took any action to influence Beals’s behavior while Beals was in the water. Harman moved for summary disposition under MCR 2.116(C)(7) on the basis of governmental immunity, asserting that his conduct was not “the proximate cause” of Beals’s death, as is required to impose tort liability on a governmental employee under MCL 691.1407(2). The trial court issued an order denying summary disposition, finding that “reasonable minds could differ as to the question of gross negligence and if the proximate cause of death was the gross negligence of William Harman and/or the State of Michigan.” Harman appealed the trial court’s decision in the Court of Appeals, which affirmed the trial court in a split opinion. The majority upheld the trial court’s denial of Harman’s motion for summary disposition, holding that “[g]iven the evidence presented, reasonable minds could conclude that Harmon’s [sic] failure to intervene constituted the one most immediate, efficient, and direct cause of Beals’s death.” Judge O’CONNELL dissented in part, instead concluding that the undisputed facts establish that defendant’s conduct cannot be deemed “the proximate cause” of Beals’s death, and that the trial court should have granted summary disposition in favor of Harman under MCR 2.116(C)(7). Harman sought 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 defendant William J. Harmon’s [sic] alleged failure to act was the proximate cause of the decedent’s death. MCL 691.1407(2)(c).” II. STANDARD OF REVIEW The applicability of governmental immunity is a question of law that this Court reviews de novo on appeal. This Court also reviews de novo a trial court’s determination regarding a motion for summary dispos ition. “Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by immunity granted by law. To survive such a motion, the plaintiff must allege facts justifying the application of an exception to governmental immunity. [The reviewing court] consider[s] all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them.” “If the facts are not in dispute and reasonable minds could not differ concerning the legal effect of those facts, whether the claim is barred by immunity is a question for the court to decide as a matter of law.” III. BACKGROUND The GTLA, MCL 691.1401 et seq., affords broad immunity from tort liability to governmental agencies and their employees whenever they are engaged in the exercise or discharge of a governmental function. The GTLA provides several exceptions to this general rule, all of which must be narrowly construed. One such exception that governs the tort liability of governmen tal employees like Harman is contained in MCL 691.1407(2), which states in pertinent part: [E]ach ... employee of a governmental agency ... is immune from tort liability for an injury to a person or damage to property caused by the .. . employee ... while in the course of employment... if all of the following are met: (a) The ... employee ... is acting or reasonably believes he or she is acting within the scope of his or her authority. (b) The governmental agency is engaged in the exercise or discharge of a governmental function. (e) The ... employee’s . .. conduct does not amount to gross negligence that is the proximate cause of the injury or damage. There is no dispute regarding whether defendant Harman acted within the scope of his authority as an employee of a governmental agency engaged in the exercise of a governmental function. Moreover, Harman does not challenge whether his conduct amounted to gross negligence. Accordingly, the sole issue presented in the instant appeal is whether Harman’s conduct constituted “the proximate cause” of Beals’s death for purposes of MCL 691.1407(2) (c). This Court explained the proper interpretation of the term “the proximate cause” for purposes of MCL 691.1407(2) (c) in Robinson v Detroit, and held that in order for a governmental employee’s grossly negligent conduct to be considered the proximate cause of an injury, that conduct must be “the one most immediate, efficient, and direct cause of the injury or dam age.. . .” In Robinson, this Court considered “whether the city of Detroit or individual police officers face civil liability for injuries sustained by passengers in vehicles fleeing from the police when the fleeing car caused an accident.” The plaintiff passengers alleged that the police officers were not immune from liability, because their gross negligence in chasing the fleeing vehicles was the proximate cause of the collisions. This Court disagreed. First, the Court articulated that because “ ‘the’ is a definite article, and ‘cause’ is a singular noun, it is clear that the phrase ‘the proximate cause’ contemplates one cause.” The Robinson Court then concluded that “the Legislature provided tort immunity for employees of governmental agencies unless the employee’s conduct amounts to gross negligence that is the one most immediate, efficient, and direct cause of the injury or damage, i.e., the proximate cause.” Applying this construction, this Court held that the officers in question are immune from suit in tort because their pursuit of the fleeing vehicles was not, as a matter of law, “the proximate cause” of the injuries sustained by the plaintiffs. The one most immediate, efficient, and direct cause of the plaintiffs’ injuries was the reckless conduct of the drivers of the fleeing vehicles.[ ] Accordingly, “summary disposition for the defendant officers was proper because reasonable jurors could not find that the officers were ‘the proximate cause’ of the injuries.” IV ANALYSIS AND APPLICATION Applying this Court’s rationale in Robinson to the instant case, Harman’s failure to intervene in Beals’s drowning cannot reasonably be found to be “the one most immediate, efficient, and direct cause” of Beals’s death. While it is unknown what specifically caused Beals to remain submerged under the water, the record indicates that Beals voluntarily entered the pool and voluntarily dove under the surface of the shallow end into the deep end without reemerging. Although plaintiff alleges that Harman’s inattentiveness prevented him from attempting a timely rescue of Beals, in our view, it is readily apparent that the far more “immediate, efficient, and direct cause” of Beals’s death was that which caused him to remain submerged in the deep end of the pool without resurfacing. Under the facts of this case, Harman’s inaction does not constitute the “most immediate, efficient, and direct cause” of Beals’s drowning. Harman did not cause Beals to enter the pool and swim to the deep end, an act the accomplished swimmer performed voluntarily, nor did Harman cause Beals to remain submerged in the water, which was undeniably a more direct cause of Beals’s death than any inaction on the part of Harman. That we lack the reason for Beals’s prolonged submersion in the water does not make that unidentified reason any less the “most immediate, efficient, and direct” cause of his death. Consequently, while Harman’s failure to intervene may be counted among the myriad reasons that Beals did not survive this occurrence, it certainly was not “the proximate cause” of his death for purposes of MCL 691.1407(2)(c). In concluding to the contrary, the Court of Appeals majority appears to have conflated Harman’s alleged breach of duty with the proximate cause of Beals’s death. In holding that “reasonable minds could conclude Harman’s failure to intervene constituted the one most immediate, efficient, and direct cause of Beals’s death,” the majority focused on Harman’s obligation to rescue Beals and reasoned that Harman’s grossly negligent conduct resulted in his failure to notice Beals’s distress and respond appropriately. While the majority pointed to evidence alleging that proper intervention and rescue could have prevented Beals’s death, this speculation does not establish a proximate relationship between Harman’s breach and Beals’s death. Stated simply, that Harman breached his duty does not necessarily entail that his inaction was the most direct cause of Beals’s drowning. Indeed, Harman did not cause Beals’s drowning; he merely failed to observe it happening and to attempt a rescue in response. That we can only speculate as to Beals’s survival had Harman timely intervened further supports our conclusion that Harman’s conduct was not the proximate cause of Beals’s death. Further, we find the present case analogous to Dean v Childs, which also involved a claim that a governmental employee’s failure to intervene to prevent a death constituted the proximate cause of that death. In Dean, the plaintiffs home was allegedly set on fire by an arsonist, resulting in the death of the plaintiffs four children. The plaintiff sued the defendant firefighter, claiming that he was grossly negligent in fighting the fire and that he took “ ‘affirmative actions that significantly increased the risk of danger’ ” based on an expert’s conclusion that the defendant caused the fire “ ‘to be pushed’ ” toward the children and that this prevented a rescue attempt. The defendant moved for summary disposition based on governmental immunity, but the trial court denied his motion. The Court of Appeals majority opinion affirmed, opining that [w]hile it is likely that the arsonist was “a proximate cause” of the children’s deaths, plaintiffs evidence, if proven, would show that the children would have survived the fire if [the defendant] had not acted in a grossly negligent manner. As the factual development of plaintiffs claim may justify recovery, the trial court properly denied [the defendant’s] motion for summary disposition on the ground of statutory immunity.[ ] This Court reversed the Court of Appeals for the reasons stated in Judge Griffin’s dissent, thereby-adopting his conclusion that the defendant was immune from tort liability under MCL 691.1407(2) because “ ‘the most immediate, efficient and direct cause’ ” of the children’s deaths “was the fire itself, not defendant’s alleged gross negligence in fighting it.” Although the defendant’s alleged gross negligence might have been a “ ‘substantial factor’ ” in the deaths, this causal connection was insufficient to meet the governmental immunity threshold standard of “the” proximate cause. As with the situation of the firefighter in Dean, Harman’s failure to intervene in Beals’s already-initiated drowning does not transform his inaction into the proximate cause of Beals’s death, even though plaintiffs expert opined that timely intervention might have prevented Beals’s death. When a fire is consuming a house, that a prudent firefighter might have slowed or stopped the fire does not automatically transform his failure to do so into the proximate cause of a death by fire. Similarly, if a swimmer accidently drowns, that a prudent lifeguard might have rescued the swim mer from drowning does not automatically transform his failure to do so into the proximate cause of a death by drowning. Accordingly, under Robinson, plaintiff cannot, as a matter of law, establish that Harman was “the proximate cause” of Beals’s death. Consequently, because no jury could reasonably find that Harman’s failure to intervene in Beals’s drowning was the proximate cause of his death on the basis of the facts presented in this case, the trial court should have granted summary disposition in favor of Harman under MCR 2.116(C)(7), as Harman is entitled to the protections of governmental immunity. While we need not hypothesize scenarios in which a governmental employee’s failure to intervene is so “immediate, direct, and efficient” to the injury that it breaks the existing causal connection, supersedes any other cause, and becomes “the one most immediate, efficient, and direct cause” of the injury, we reject the defendant’s suggestion that a governmental employee’s failure to intervene can never constitute the proximate cause of an injury. Nevertheless, under the facts presented in this case, Harman’s failure to intervene was not “the one most immediate, efficient, and direct cause” of Beals’s death. It bears repeating that this case arose in the scope of governmental employment. Harman was a governmental employee and the clearly established underlying principle is that he is generally immune from tort liability if he is in performance of a governmental function. The Legislature has carved out a very narrow exception to that immunity for employees whose conduct is (1) grossly negligent and (2) “the proximate cause” of another’s person’s injury, which this Court has interpreted to mean the most direct cause of that injury. Applying these well-established principles to the instant case, it is evident that Harman is protected from liability by governmental immunity. V CONCLUSION We hold that Harman’s conduct did not constitute “the proximate cause” of the deceased’s death as a matter of law and that the exception to governmental immunity articulated in MCL 691.1407(2) is inapplicable. Consequently, the trial court should have granted summary disposition in favor of Harman under MCR 2.116(C)(7), because he is entitled to the protections of governmental immunity. Accordingly, we reverse in part the judgment of the Court of Appeals, and we remand this case to the Barry Circuit Court for entry of an order granting summary disposition in favor of defendant Harman. Young, C.J., and Maekman, Kelly, McCormack, and Viviano, JJ., concurred with Zahra, J. Robinson v Detroit, 462 Mich 439, 462; 613 NW2d 307 (2000). The trial court denied the state’s motion for summary disposition as to this claim, hut the Court of Appeals unanimously reversed the trial court on this issue. Plaintiff did not appeal that ruling in this Court. Estate of Beals v Michigan, unpublished opinion per curiam of the Court of Appeals, issued July 1, 2014 (Docket Nos. 310231 and 310565). Id. at 3-4. Id. at 2 (O’Connell, J., dissenting in part). See MCR 7.302(H)(1). Beals v Michigan, 497 Mich 930 (2014). Mack v Detroit, 467 Mich 186, 193; 649 NW2d 47 (2002). 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). Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001) (citations omitted). Poppen v Tovey, 256 Mich App 351, 354; 664 NW2d 269 (2003) (citation omitted). MCL 691.1407(1) (“Except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.”). Nawrocki v Macomb Co Road Comm, 463 Mich 143, 158; 615 NW2d 702 (2000) (stating “the immunity conferred upon governmental agencies is broad, and the statutory exceptions thereto are to be narrowly construed.”) (citations omitted). We do not opine as to whether Harman’s conduct was grossly negligent. Harman does not explicitly concede that his conduct was grossly negligent, nor does he argue that it was not. Harman’s position instead rests solely on his argument that his conduct was not “the proximate cause” of Beals’s death as a matter of law. Robinson, 462 Mich at 462. Id. at 444. Id. at 462. Id. Before Robinson, this Court had effectively interpreted the phrase “the proximate cause” to mean “a proximate cause” in Dedes v Asch, 446 Mich 99; 521 NW2d 488 (1994). The majority in Robinson overruled Dedes, noting that “a proximate cause” and “the proximate cause” have distinct legal meanings, and “the Legislature has shown an awareness that it actually knows that the two phrases are different.” Robinson, 462 Mich at 460. Id. at 462. Id., at 463, citing Moll v Abbott Laboratories, 444 Mich 1, 28, n 36; 506 NW2d 816 (1993). Beals, unpub op at 3-4. Id. at 3. As the Court of Appeals noted, plaintiffs expert, professional aquatics safety and water rescue consultant Gerald M. Dworkin, opined in a preliminary report that Beals’s death “could have been and should have been easily prevented” and that a timely rescue would have provided a window of opportunity “for a successful outcome with early CPR, early defibrillation, and early Advanced Cardiac Life Support.” It is noteworthy that there were 24 other students in the pool at the time of Beals’s drowning, none of whom noticed Beals in distress or attempted to rescue him before he was found at the bottom of the pool. These students had no duty to prevent Beals from drowning, and it is undisputed that their conduct was not the proximate cause of Beals’s death. Although Harman did have a duty to intervene in Beals’s drowning, he acted no differently than the other 24 students present at the time of Beals’s drowning, and was thus no more the cause of Beals’s death than were the other students. While Harman may have breached a duty that the other students did not possess, that is distinct from the cause of Beals’s drowning, which cannot he attributed to the actions or inactions of Harman or the other students. Moreover, given that there is no evidence that Beals struggled in the water or displayed any signs of distress, it is unclear that even a prudent lifeguard would have been able to observe and prevent Beals’s drowning. This further illustrates that, based on the facts presented in this case, the connection between Beals’s death and Harman’s breach of duty is simply too tenuous for Harman’s negligence to constitute the proximate cause of Beals’s death. Dean v Childs, 474 Mich 914 (2005), rev’g 262 Mich App 48; 684 NW2d 894 (2004). Dean, 262 Mich App at 51-52, 58. Id. at 58. Id. at 61 (Griffin, J., dissenting in part) (citation omitted). Judge Griffin acknowledged that “[i]f it were proven that an arsonist started the fire, the arsonist may be the proximate cause of the deaths.” Id. at 61 n 5. Id. at 62 (citation omitted). See note 23 of this opinion. Moreover, it is more clear in the instant case that the defendant government employee was not the proximate cause of the relevant death than was the case in Dean, as Harman did not take any type of affirmative action to increase the danger posed to Beals as the defendant allegedly did in Dean by pushing the fire to the back of the home. While we agree with the dissent’s conclusion that Harman is protected by governmental immunity, we do not endorse Judge O’Connell’s statement that “[a] chain of events .. . cannot logically be the one most direct and immediate cause of a death, and as such cannot he the source of tort liability against a governmental employee.” Beals, unpub op at 2 (O’Connell, J., dissenting in part). Because Harman’s participation in a chain of events was not the proximate cause of Beals’s death in the instant matter, we need not address under what circumstances a chain of events might constitute the proximate cause of an injury or death in a different factual scenario. See, e.g., Fuller v Hessler, 226 Mich 311, 314-315; 197 NW 524 (1924) (holding, outside of the governmental immunity context, that proximate cause does not exist between an earlier cause and the injury where “independent human agency ... broke the relation of alleged cause and effect.”). Robinson, 462 Mich at 462.
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McCORMACK, J. Before us is whether the plaintiff law firm can recover, as case-evaluation sanctions under MCR 2.403(O)(6)(b), a “reasonable attorney fee” for the legal services performed by its own member lawyers in connection with its suit to recover unpaid fees from the defendants, former clients of the firm. Contrary to the determinations of the trial court and the Court of Appeals majority, we conclude it cannot. Accordingly, we reverse the Court of Appeals in part, vacate the trial court’s award of a “reasonable attorney fee” to the plaintiff under MCR 2.403(O)(6)(b), and remand to the trial court for further proceedings consistent with this opinion. I. FACTUAL AND PROCEDURAL BACKGROUND The plaintiff, Fraser Trebilcock Davis & Dunlap, EC. (“Fraser Trebilcock”), is a law firm organized as a professional corporation under the laws of Michigan. Fraser Trebilcock provided legal services to the defendants, a group of trusts, in connection with the financing and purchase of four hydroelectric dams. Dissatisfied with the representation they received, the defendants refused to pay the full sum of fees billed by Fraser Trebilcock. To recover these unpaid fees, Fraser Trebilcock brought the instant suit against the defendants for breach of contract. Pursuant to MCR 2.403, the matter was submitted for a case evaluation, which resulted in an evaluation of $60,000 in favor of Fraser Trebilcock. Fraser Trebilcock accepted the evaluation, but the defendants rejected it. The case proceeded to trial, resulting in a verdict for Fraser Trebilcock and a judgment totaling $73,501.90. Throughout the litigation of this breach-of-contract action, Fraser Trebilcock appeared through Michael Perry, a shareholder of the firm, and other lawyers affiliated with the firm (collectively, “member lawyers”). At no point did Fraser Trebilcock retain outside counsel, and there is no indication that the firm entered into a retainer agreement with its member lawyers or received or paid a bill for their services in connection with the litigation. On its pleadings, Fraser Trebilcock identified the firm itself as “Attorneys for Plaintiff.” After receiving the verdict, the parties filed post-trial motions: the defendants moved for a new trial, and Fraser Trebilcock moved for case-evaluation sanctions under MCR 2.403(0), seeking to recover, inter alia, a “reasonable attorney fee” under MCR 2.403(0)(6)(b) for the legal services performed by its member lawyers—including the litigation of these posttrial motions. The trial court denied the defendants’ motion for a new trial, and granted Fraser Trebilcock’s motion for case-evaluation sanctions, ruling in particular that Fraser Trebilcock could recover an attorney fee as part of its sanctions. The court recognized that an individual litigant (including one who is an attorney) cannot recover attorney fees for engaging in self-representation, but, relying on certain language from Kay v Ehrler, 499 US 432; 111 S Ct 1435; 113 L Ed 2d 486 (1991), concluded that this prohibition did not extend to a corporation such as Fraser Trebilcock seeking to recover a fee for legal services performed by its member lawyers. After an evidentiary hearing, the court awarded Fraser Trebilcock $80,434 in attorney fees, plus interest— roughly two-thirds of the amount of fees the firm had requested—and also permitted Fraser Trebilcock to seek supplemental fees for additional time spent litigating the sanctions request. Fraser Trebilcock requested $38,566.50 in such fees, of which the court awarded $21,253.60, plus interest—resulting in a total award of approximately $102,000, pre-interest, as a “reasonable attorney fee” sanction under MCR 2.403(O)(6)(b). The defendants appealed the judgment and each of the two sanctions orders. In a split decision, the Court of Appeals affirmed the trial court in all respects but one, reversing the trial court’s award of attorney fees to Fraser Trebilcock for time spent pursuing its request for case-evaluation sanctions. See Fraser Trebilcock Davis & Dunlap PC v Boyce Trust 2350, 304 Mich App 174; 850 NW2d 537 (2014). The panel unanimously agreed on this reversal, but divided over whether the remainder of the trial court’s fee award under MCR 2.403(O)(6)(b) could stand. After surveying Michigan and federal authority, the Court of Appeals majority upheld the trial court’s determination that Fraser Trebilcock could recover attorney fees for the legal services performed by its member lawyers in the breach-of-contract action, despite caselaw establishing that an individual attorney-litigant may not recover such fees for self-representation. Like the trial court, the majority relied significantly on certain language from the United States Supreme Court in Kay, as well as federal authority interpreting that language. Chief Judge MURPHY disagreed with the majority’s reasoning on this point, concluding instead that Michigan authority precluding an award of attorney fees to an individual attorney-litigant—most notably, Omdahl v West Iron Co Bd of Ed, 478 Mich 423; 733 NW2d 380 (2007)—extended to and foreclosed Fraser Trebilcock’s request for fees. The defendants then filed the instant application for leave to appeal, seeking this Court’s review of the Court of Appeals majority’s partial affirmance of the fee award to Fraser Trebilcock. Fraser Trebilcock cross-appealed, challenging the Court of Appeals’ partial reversal of the fee award. We denied leave as to Fraser Trebilcock’s cross-appeal, and ordered oral argument on the defendants’ application. See Fraser Trebilcock Davis & Dunlap PC v Boyce Trust, 497 Mich 873 (2014). For the reasons set forth below, we agree with the defendants that Fraser Trebilcock cannot recover a “reasonable attorney fee” under MCR 2.403(O)(6)(b) for the legal services performed by its member lawyers in connection with the instant suit. Accordingly, in lieu of granting the defendants’ application, we reverse the Court of Appeals in part and vacate the trial court’s attorney-fee award to Fraser Trebilcock. II. ANALYSIS Our disposition of this fee dispute turns on the proper interpretation of MCR 2.403(0), which this Court reviews de novo and under the same principles that govern the construction of statutes. See McAuley v Gen Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998). Namely, the court rule is to be interpreted according to its plain language, “ ‘giving effect to the meaning of the words as they ought to have been understood by those who adopted them.’ ” Id., quoting Buscaino v Rhodes, 385 Mich 474, 481; 189 NW2d 202 (1971). Unless expressly defined, “[e]very word or phrase of. . . [the] court rule should be given its commonly accepted meaning[.]” Id. MCR 2.403(0) provides, in relevant part: (1) If a party has rejected an evaluation and the action proceeds to verdict, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the case evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the case evaluation. (6) For the purpose of this rule, actual costs are (a) those costs taxable in any civil action, and (b) a reasonable attorney fee based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the case evaluation. For the purpose of determining taxable costs under this subrule and under MCR 2.625, the party entitled to recover actual costs under this rule shall be considered the prevailing party. As a general matter, the purpose of MCR 2.403(0) “is to encourage settlement by placing] the burden of litigation costs upon the party who insists upon trial by rejecting a proposed mediation award.” Watkins v Manchester, 220 Mich App 337, 344; 559 NW2d 81 (1996) (quotation marks omitted); see Smith v Khouri, 481 Mich 519, 527-528; 751 NW2d 472 (2008). “Although one of the aims of the mediation rule is to discourage needless litigation, the rule is not intended to punish litigants for asserting their right to a trial on the merits.” McAuley, 457 Mich at 523. Nor is it “designed to provide a form of economic relief to improve the financial lot of attorneys or to produce windfalls.” Smith, 481 Mich at 528. Correspondingly, the “reasonable attorney fee” authorized under MCR 2.403(O)(6)(b) is not punitive but “compensatory in nature.” McAuley, 457 Mich at 520. The parties do not dispute that Fraser Trebilcock is entitled to recover, as case-evaluation sanctions under MCR 2.403(0), the “actual costs” of its breach-of-contract action against the defendants, which pro ceeded to trial as a result of the defendants’ rejection of the case evaluation. The question before us is whether such costs include a “reasonable attorney fee” for the legal services performed by Fraser Trebilcock’s member lawyers over the course of that action. According to the defendants, this cannot be, because Fraser Trebilcock’s self-representation did not give rise to an “attorney fee.” We agree. This Court most recently addressed the commonly accepted meaning of the phrase “attorney fee” in Omdahl, explaining: “Attorney” is defined as a “lawyer” or an “attorney-at-law.” Random House Webster’s College Dictionary (2001). The definition of “lawyer” is “a person whose profession is to represent clients in a court of law or to advise or act for them in other legal matters.” Id. (emphasis added). And the definition of “attorney-at-law” is “an officer of the court authorized to appear before it as a representative of a party to a legal controversy.” Id. (emphasis added). Clearly, the word “attorney” connotes an agency relationship between two people. “Fee” is relevantly defined as “a sum charged or paid, as for professional services or for a privilege.” Id. [Omdahl, 478 Mich at 428.] At issue in Omdahl was whether an individual attorney-litigant could recover attorney fees for the representation he provided to himself in the successful pursuit of a claim under the Open Meetings Act (OMA), MCL 15.261 et seq., which provides that if a person prevails in an action under that statute, “the person shall recover court costs and actual attorney fees for the action.” MCL 15.271(4). Looking to the above definitions, this Court concluded that there were no such attorney fees for the individual attorney-litigant to recover. As this Court explained, the “plain and unambiguous meaning of the term ‘attorney’ ” requires “an agency relationship between an attorney and the client whom he or she represents” and, with that relationship, “separate identities between the attorney and the client.” Omdahl, 478 Mich at 428 n 1, 432. And see id. at 430 n 4 (“[B]oth a client and an attorney are necessary ingredients for an attorney fee award.”). Because, in the case of an individual attorney-litigant, the requisite distinction in identity between attorney and client is lacking, there is no attorney-client relationship from which an “attorney fee” may arise, id. at 432—an outcome this Court deemed consistent with decisions by “[t]he courts of this state as well as the federal courts,” which “have, in deciding cases of this sort, focused on the concept that an attorney who represents himself or herself is not entitled to recover attorney fees because of the absence of an agency relationship.” Id. at 428-429. We agree with the defendants that this same rationale applies to the instant case, and is fatal to Fraser Trebilcock’s request for attorney fees under MCR 2.403(O)(6)(b). Fraser Trebilcock does not challenge the commonly accepted meaning of “attorney fee” set forth in Omdahl, nor do we see any reason to assign that phrase a different meaning under the plain language of MCR 2.4O3(O)(6)(b). Instead, Fraser Trebilcock fo cuses on distinguishing that precedent from the instant case, contending that Omdahl and its ilk do not foreclose the request for fees in this case because, unlike an individual attorney-litigant, an incorporated law firm such as Fraser Trebilcock enjoys an identity distinct from its member lawyers; thus, when those lawyers appeared on behalf of Fraser Trebilcock in the underlying breach-of-contract action, the agency relationship necessary to give rise to an “attorney fee” was present. There is no dispute that Fraser Trebilcock, as a corporation, is a legal entity distinct from its shareholders. See, e.g., Bourne v Muskegon Circuit Judge, 327 Mich 175, 191; 41 NW2d 515 (1950). There is also no dispute that Fraser Trebilcock used its member lawyers as agents to litigate its interests in the instant suit; indeed, there is no other way the firm could act on its own behalf. See generally Mossman v Millenbach Motor Sales, 284 Mich 562, 568; 280 NW 50 (1938) (recognizing that a corporation can “only act through its agents”). These facts alone, however, do not mean that the firm and its member lawyers necessarily enjoyed separate identities as client and attorney for the purposes of that litigation, such that the agency relationship between them would be sufficient to give rise to an “attorney fee” under Omdahl. To the contrary, we see no more of that relationship here than when an indi vidual attorney engages in self-representation. For instance, Fraser Trebilcock routinely identified itself as its attorney throughout the litigation, and the record betrays no distinction in that regard between the firm and the member lawyers who physically appeared on its behalf—a conflation of identity consistent with our court rules, which make clear that the appearance of Fraser Trebilcock’s member lawyers was tantamount to “the appearance of every member of the firm,” MCR 2.117(B)(3)(b). Nor is there any indication that those member lawyers viewed or treated the firm as a client distinct from themselves. The nature of the fee sought by Fraser Trebilcock further confirms this analogy to an individual attorney-litigant; like such a litigant, the firm is seeking to recover for the legal services that it was forced to direct to the instant suit rather than to its clients, by virtue of the defendants’ rejection of the case evaluation. As recognized in Omdahl, an individual attorney-litigant typically cannot seek such remuneration as an “attorney fee”—a general rule to which MCR 2.403(O)(b)(6) provides no exception. See McAuley, 457 Mich at 520 (explaining that the compensatory nature of an attorney-fee award under MCR 2.403(O)(6)(b) “is illustrated by the well-established body of law holding that a litigant representing himself may not recover attorney fees as an element of costs or damages under either a statute or a court rule”). We are not convinced that the outcome should be any different for Fraser Trebilcock here. In sum, while we acknowledge that Fraser Trebilcock is a legally distinct corporate entity, we do not find that status sufficient to distinguish the representation it provided to itself through its member lawyers from the self-representation at issue in Omdahl, such that Fraser Trebilcock may recover a “reasonable attorney fee” under MCR 2.403(0)(6)(b) for its member lawyers’ services. In resisting this conclusion, Fraser Trebilcock stresses that a corporation, unlike an individual, may only appear in court through licensed counsel. We agree with this general proposition, see, e.g., Detroit Bar Ass’n v Union Guardian Trust Co (On Reconsideration), 282 Mich 707, 711; 281 NW 432 (1938), and further recognize that, as a professional corporation, Fraser Trebilcock may only provide legal services through its duly licensed “officers, employees, and agents,” MCL 450.1285(1). Contrary to Fraser Trebilcock’s suggestion, however, Michigan law does not prohibit a corporation from representing itself. See MCL 450.681 (“It shall be unlawful for any corporation or voluntary association to practice or appear as an attorney-at-law for any person other than itself in any court in this state or before any judicial body, or to make it a business to practice as an attorney-at-law, for any person other than itself, in any of said courts ....”) (emphasis added). That the corporation may only do so through an appropriately licensed agent limits, but does not eliminate, this ability; nor does it mean that a corporation necessarily enters into the sort of relationship with its agent sufficient to support recovery of an attorney fee under Omdahl. And as discussed above, we fail to see such a relationship in Fraser Trebilcock’s self-representation here. According to Fraser Trebilcock, this conclusion is at odds with the United States Supreme Court’s decision in Kay, which this Court discussed favorably in Omdahl. In Kay, an attorney successfully represented himself in a civil-rights action challenging the constitutionality of a state statute; he sought attorney fees under 42 USC 1988(b), which provides that the trial court, “in its discretion, may allow the prevailing party... a reasonable attorney’s fee as part of the costs.” The United States Supreme Court unanimously affirmed the lower courts’ rejection of this claim, citing the well-established “proposition that a pro se litigant who is not a lawyer is not entitled to attorney’s fees,” Kay, 449 US at 435, and concluding that the outcome should be no different for individual attorney-litigants seeking fees under § 1988. As noted in Omdahl, the Kay Court supported this conclusion in part with its observation that “the word ‘attorney’ assumes an agency relationship, and it seems likely that Congress contemplated an attorney-client relationship as the predicate for an award under § 1988.” Id. at 435-436 (footnote omitted). Fraser Trebilcock stresses, however, that the Kay Court immediately—and critically, for the purposes of its claimed fees—qualified this observation with the following footnote: Petitioner argues that because Congress intended organizations to receive an attorney’s fee even when they represented themselves, an individual attorney should also be permitted to receive an attorney’s fee even when he represents himself. However, an organization is not comparable to a pro se litigant because the organization is always represented by counsel, whether in-house or pro bono, and thus, there is always an attorney-client relationship. [Id. at 436 n 7.] As summarized by the Court of Appeals majority in this case, some federal circuits have relied upon this footnote in Kay to conclude that law firms represented by their own member lawyers can recover attorney fees for that representation. Fraser Trebilcock urges us, like the Court of Appeals majority, to do the same. We, however, do not find Kay’s nonbinding dictum instructive here, and decline to follow suit. As discussed, we fail to see a meaningful distinction under Michigan law between Fraser Trebilcock’s request for attorney fees under MCR 2.403(O)(6)(b) and that of an individual attorney-litigant; Nay’s passing commentary on fee requests by organizations under 42 USC 1988 does not convince us otherwise. This commentary sought to reconcile Nay’s central holding—that individual attorney-litigants may not recover fees for self-representation—with Congress’s apparent intent that unspecified “organizations” be able to recover fees for representation provided by pro bono or in-house counsel under § 1988. Nothing in this dictum suggests that it was intended to reach beyond this limited task of interpretive reconciliation, let alone that it was meant to affirmatively distinguish an individual attorney-litigant from a law firm seeking fees for the representation it provided to itself through its member lawyers—a distinction we particularly hesitate to read into Kay’s footnote, given the overall thrust of the opinion. Nor do we see a good fit between the circumstances expressly contemplated in this dictum and those presently before us. Kay’s footnote spoke to the attorney-client relationship that may arise between an organization and its in-house or pro bono counsel. Hoping to duck under Kay’s umbrella, Fraser Trebilcock likens the member lawyers who appeared on its behalf to such in-house counsel, but we find this characterization inapt. As Nay’s dictum reflects, the relationship between an organization and its in-house counsel is typically one of attorney and singular client; the attorney is employed by the organization in order to provide legal services to the organization. There is no indication, however, that Fraser Trebilcock enjoyed this same type of relationship with its member lawyers in the instant suit—namely, that these lawyers were employed by and affiliated with the firm to provide legal services to the firm as a distinct and exclusive client, rather than to provide such services on behalf of the firm to its clients. Whether and under what circumstances a law firm may recover fees for representation provided to it by in-house counsel is not before us, and we decline to reach that question here. For present purposes, it is enough to say that, to the extent Kay can be read to recognize the existence of an attorney-client relationship between a law firm and its in-house counsel, this recognition does nothing to further Fraser Trebilcock’s request for fees here. III. CONCLUSION For the reasons set forth above, we conclude that Fraser Trebilcock cannot recover a “reasonable attorney fee” under MCR 2.403(O)(6)(b) for the legal services performed by its member lawyers in connection with the instant suit. Accordingly, we reverse the Court of Appeals in part, vacate the trial court’s award of a “reasonable attorney fee” to Fraser Trebilcock under MCR 2.403(O)(6)(b), and remand to the trial court for further proceedings consistent with this opinion. Young, C.J., and Markman, Kelly, Zahra, Vmano, and Bernstein, JJ., concurred with McCormack, J. According to Fraser Trebilcock, all member lawyers of the firm, including its shareholders, are salaried employees of the firm. The panel also unanimously rejected the defendants’ challenges to the trial court’s exclusion of certain proposed testimony and its refusal to give a certain jury instruction. The Court of Appeals majority also affirmed the trial court’s assessment of the reasonableness of Fraser Trebilcock’s requested fees. In light of his determination that no such fees could be awarded, Chief Judge Murphy did not join this portion of the majority’s opinion. The defendants did not challenge the Court of Appeals’ unanimous affirmance of the trial court’s handling of certain trial-related matters, or the majority’s affirmance of the trial court’s fee-reasonableness determination. Accordingly, these matters are not before us. This Court also noted that, while the OMA expressly permits recovery of only “actual” attorney fees, Omdahl’s fee request did not fail because of that term or any distinction there may be between it and “reasonable”; rather, Omdahl could not recover fees for his self-representation because of the absence of the attorney-client relationship that inheres in and is necessary to an “attorney fee.” See Omdahl, 478 Mich at 430 n 4. MCR 2.403 provides no express definition of “attorney fee.” While MCR 2.403(O)(6)(b) specifies that any “reasonable attorney fee” awarded as a case-evaluation sanction must be “based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the case evaluation,” nothing in this language purports to supplant or modify the commonly accepted meaning of “attorney fee” quoted above, or to suggest that such a fee can be awarded under MCR 2.403(O)(6)(b) in the absence of the type of attorney-client relationship discussed in Omdahl. To the contrary, in concluding that such a relationship was necessary for a fee award under the OMA, this Court relied in part on authority interpreting the “attorney fee” available under MCR 2.403(O)(6)(b). See Omdahl, 478 Mich at 431 (explaining that its interpretation of “attorney fee” was supported by Watkins, 220 Mich App 337, which held that an individual attorney-litigant may not recover a “reasonable attorney fee” for self-representation under MCR 2.403(O)(6)(b) and which likewise “focused on the availability of any attorney fees when the [attorney-client] agency relationship was missing”). See Treasurer, Trustees of Drury Indus, Inc Health Care Plan & Trust v Goding, 692 F3d 888, 898 (CA 8, 2012), cert den 133 S Ct 1644 (2013); Baker & Hostetler LLP v US Dep’t of Commerce, 473 F3d 312, 325 (CA DC, 2006); Bond v Blum, 317 F3d 385 (CA 4, 2003); Gold, Weems, Bruser, Sues & Rundell v Metal Sales Mfg Corp, 236 F3d 214, 218-219 (CA 5, 2000).
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PER CURIAM. After her home and much of its contents were damaged by fire, plaintiff sought coverage under the terms of a homeowners insurance policy issued by defendant. Although the parties were able to settle plaintiffs claim for damages to her dwelling, they were unable to agree on the extent of the loss incurred to plaintiffs personal property. Consequently, the parties invoked the policy’s fire loss appraisal provision, which provided in relevant part as follows: If you and we [defendant] fail to agree on the actual cash value or amount of loss covered by this policy, either party may make written demand for an appraisal.... The appraisers shall then appraise the loss, stating separately the actual cash value and loss to each item. If the appraisers submit a written report of an agreement to us [defendant], the amount agreed upon shall be the actual cash value or amount of loss. If they cannot agree, they will submit their differences to the umpire. A written award by two will determine the actual cash value or amount of loss.[ ] After the parties’ respective appraisers submitted their differences, the umpire issued an appraisal award, which read in pertinent part: We the undersigned, pursuant to the within appointment, DO HEREBY CERTIFY that we truly and conscientiously performed the duties assigned us, agreeably to the foregoing stipulations, and have appraised and determined and do hereby award as the Actual Cash Value of said property on the 12th day of August 2005 and the amount of loss thereto by the fire on the [sic] that day, the following sums, to wit: (1) THE FULL COST OF REPAIR OR REPLACEMENT IS...........................................................$167,923.60 (2) APPLICABLE DEPRECIATION............$39,673.48 (3) THE ACTUAL CASH VALUE LOSS IS ... $128,250.12 Defendant compensated plaintiff $128,250.12 for the actual cash value of her damaged personal property, but it refused to pay the additional depreciation amount of $39,673.28 on the basis that plaintiff had failed to comply with the policy’s replacement cost provision, which provided that, as a prerequisite to payment, plaintiff submit proof that she actually replaced her damaged personal property: If the full cost to replace all damaged covered property under the provisions of this section exceeds $500, we [defendant] will pay no more than the actual cash value of such property until actual repair or replacement of such property is completed. Actual cash value includes a deduction for depreciation.[ ] Plaintiff sued to recover the additional depreciation amount and the circuit court granted summary disposition in her favor. The Court of Appeals affirmed. Dupree v Auto-Owners Insurance Company, unpublished opinion per curiam of the Court of Appeals, issued July 18, 2013 (Docket No. 310405). The sole issue before this Court is whether plaintiffs appraisal award entitled her to only the actual cash value of her damaged personal property or whether defendant is liable for the full replacement cost of that property, i.e., actual cash value plus the applicable depreciation amount. To determine the extent of defendant’s liability, it is necessary to ascertain the scope of the appraisal award. While matters of coverage under an insurance agree ment are generally determined by the courts, the method of determining the loss is a matter reserved for the appraisers. And because the statutorily mandated appraisal process set forth in MCL 500.2833(l)(m) is regarded as a “substitute for judicial determination of a dispute concerning the amount of a loss,” “the amount of loss attributable to personal property damage, as determined by the appraisers, is conclusive.” Given this conclusiveness, judicial review of an appraisal award is therefore “limited to instances of bad faith, fraud, misconduct, or manifest mistake.” Applying these principles to the facts in this case, if the appraisal award is read as awarding plaintiff the replacement cost of her damaged property, then the award is conclusive in that respect and, absent bad faith, fraud, misconduct, or manifest mistake, it will supersede the insurance policy’s replacement cost provision. If, however, the appraisal award is viewed as involving a matter of coverage under the insurance contract, then the award is not afforded conclusive effect, the policy language is not beyond the scope of judicial review, and the limiting terms of the insurance policy’s replacement cost provision will remain determinative. A plain reading of the appraisal award does not support the lower courts’ determination that plaintiff is entitled to the full replacement cost of her damaged personal property, particularly where the informing language states, “We ... do hereby award as the Actual Cash Value of said property...” (emphasis added). Indeed, if any part of the appraisal award constitutes a binding and conclusive judgment, it is the part that awards plaintiff the actual cash value of her damaged property. While we are mindful that review of appraisal awards is especially limited, that deference is inapplicable because the issue here pertains to a condition precedent that has not been met under the terms of the insurance policy, namely, submission of proof of actual loss. Accordingly, before it can be determined that the appraisal award constituted a conclusive judgment for replacement cost that superseded the insurance policy’s replacement cost provisions, there is the preliminary question concerning whether the appraisal award entitled plaintiff to the replacement cost or the actual cash value of her damaged personal property. Because the appraisal award cannot be read as a “conclusive” judgment for replacement cost, the terms of the replacement cost provision under the insurance policy control the scope of plaintiffs appraisal award. Consequently, plaintiffs failure to submit proof of actual loss in accordance with that provision entitles her to only the actual cash value of her damaged personal property. In lieu of granting defendant’s application for leave to appeal, we reverse the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for entry of an order vacating its ruling in plaintiffs favor and granting summary disposition in favor of defendant. YOUNG, C. J., and MARKMAN, KELLY, ZAHRA, McCOEMACK, and VIVIANO, JJ., concurred. CAVANAGH, J. I would deny the application for leave to appeal. This appraisal process is statutorily mandated by MCL 500.2833(l)(m), which states: (1) Each fire insurance policy issued or delivered in this state shall contain the following provisions: (m) 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----The appraisers shall then set the amount of the loss and actual cash value as to each item. If the appraisers submit a written report of an agreement to the insurer, the amount agreed upon shall be the amount of the loss. If the appraisers fail to agree within a reasonable time, they shah submit their differences to the umpire. Written agreement signed by any 2 of these 3 shah set the amount of the loss.... The propriety of this provision is not in dispute as it was authorized by MCL 500.2826, which reads in pertinent part: A fire policy issued pursuant to this section may provide that there shall be no liability by the insurer to pay the amount specified in the policy unless the property damaged is actually repaired, rebuilt, or replaced at the same or another site. See Auto-Owners Ins Co v Kwaiser, 190 Mich App 482, 487; 476 NW 2d 467 (1991); MCL 500.2833(l)(m). Kwaiser, 190 Mich App at 486, quoting Thermo-Plastics R & D, Inc v Gen Accident Fire & Life Assurance Corp, Ltd, 42 Mich App 418, 422; 202 NW2d 703 (1972). Kwaiser, 190 Mich App at 488. Id. at 486, citing Port Huron & N R Co v Callanan, 61 Mich 22, 26; 34 NW 678 (1887); Davis v Nat’l American Ins Co, 78 Mich App 225, 232; 259 NW2d 433 (1977).
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PER CURIAM. In this interlocutory appeal, we are once again asked to consider the scope of the peer review privilege found in MCL 333.20175(8) and MCL 333.21515 of the Public Health Code, MCL 333.1101 et seq. Specifically, we must decide whether the trial court erred by ordering production of the objective facts contained in an incident report authored by an employee of defendant Covenant Healthcare. The trial court’s decision was based on Harrison v Munson Healthcare, Inc, 304 Mich App 1; 851 NW2d 549 (2014), which held, in part, that the peer review privilege does not protect objective facts gathered contemporaneously with an event. We hold that §§ 20175(8) and 21515 do not contain an exception to the peer review privilege for objective facts. As a result, this portion of Harrison was wrongly decided. In this case, the trial court erred by relying on Harrison to order production of the objective-facts portion of the incident report. Therefore, we vacate the trial court’s May 8, 2014 order and remand for further proceedings. I. FACTS AND PROCEDURAL HISTORY In September 2008, Pramod K. Sanghi, M.D., performed a cardiac catheterization on 80-year-old decedent Dorothy Krusac, successfully placing stents in Krusac’s heart. Immediately following the procedure, however, Krusac began moving her legs around and rolled off the operating table. Three medical personnel were present when this happened: Deborah Colvin, R.N., Heather Gengler, R.N., and Rogers Gomez, the lab technician. According to the deposition testimony of Colvin and Gomez, they were able to catch Krusac and cradle her gently to the floor, where she came to rest on her left side. At that time, Krusac denied hitting her head, but later complained of neck and back pain from the fall. The CT scan performed later that day showed no evidence of injury from the fall. Shortly after the surgery and fall, Krusac died. Plaintiff John Krusac, as personal representative of the estate of Dorothy Krusac, filed a medical malpractice complaint in the Saginaw Circuit Court against defendant, alleging that Krusac died as a result of injuries sustained from the fall. During discovery, it became known that Colvin had filled out an incident report shortly after the event and submitted it to her supervisor. Plaintiff filed a motion in limine on the eve of trial, asking the court to conduct an in camera inspection of the incident report and provide plaintiff with the facts contained in it. Relying on Harrison, plaintiff argued that the facts were necessary to cross-examine the hospital staff and that it would be unethical for defendant to offer a defense inconsistent with the facts contained in the report. Defendant responded that the peer review privilege under §§ 20175(8) and 21515 protected the report from discovery. After hearing oral arguments, the trial court denied plaintiffs motion. Plaintiff thereafter sought reconsideration, which the court granted. The court ordered defendant to produce a copy of the report for in camera review. After reviewing the report, on May 8, 2014, the trial court issued an order requiring defendant to provide plaintiff with the first page of the incident report, which contained only objective facts. The court based its decision on the Court of Appeals’ recent holding in Harrison that the peer review privilege does not apply to objective facts contained in an incident report. Defendant sought leave to appeal in the Court of Appeals, and moved for immediate consideration and a stay of the proceedings. The Court of Appeals granted immediate consideration, but denied defendant’s application for leave to appeal for failure to persuade the Court of the need for immediate appellate review. The Court also denied the motion to stay the proceedings. Defendant then sought review by this Court. After granting defendant’s motion to stay the trial court proceedings, we granted leave to appeal and directed the parties to address (1) whether Harrison v Munson Healthcare, Inc, 304 Mich App 1 (2014), erred in its analysis of the scope of the peer review privilege, MCL 333.21515; and (2) whether the Saginaw Circuit Court erred when it ordered the defendant to produce the first page of the improvement report based on its conclusion that “objective facts gathered contemporaneously with an event do not fall within the definition of peer review privilege.” [Krusac v Covenant Med Ctr, Inc, 496 Mich 855-856 (2014).] II. STANDARD OF REVIEW This case involves a question of statutory interpretation, which we review de novo. Madugula v Taub, 496 Mich 685, 695; 853 NW2d 75 (2014). As with any statutory interpretation, our goal is to give effect to the Legislature’s intent, focusing first on the statute’s plain language. Id. at 696. When the language of a statute 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. Id. (citation and quotation marks omitted). III. ANALYSIS The peer review privilege is a creature of statute, not the common law. See Scheutzow & Gillis, Confidentiality and Privilege of Peer Review Information: More Imagined Than Real, 7 JL & Health 169, 181 (1992-1993) (“It is generally accepted that the privilege ascribed to peer review proceedings does not arise from any recognized common law principle, but is rather a legislative creation....”). Therefore, in assessing whether the peer review privilege applies to objective facts contained in an incident report, we must turn first to the language of the relevant statutes. See Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 33; 594 NW2d 455 (1999). MCL 333.21513(d) imposes a duty on hospitals to create peer review committees “for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients.” Essential to the peer review process is the candid and conscientious assessment of hospital practices. Feyz v Mercy Mem Hosp, 475 Mich 663, 680; 719 NW2d 1 (2006). To encourage such an assessment by hospital staff, the Legislature has protected from disclosure the records, data, and knowledge collected for or by peer review committees. Id. at 680-681. To this end, MCL 333.20175(8) reads: The records, data, and knowledge collected for or by individuals or committees assigned a professional review function in a health facility or agency, or an institution of higher education in this state that has colleges of osteopathic and human medicine, are confidential, shall be used only for the purposes provided in this article, are not public records, and are not subject to court subpoena. Similarly, MCL 333.21515 provides: The records, data, and knowledge collected for or by individuals or committees assigned a review function described in this article are confidential and shall be used only for the purposes provided in this article, shall not be public records, and shall not be available for court subpoenal - These statutes, and their predecessors, have been interpreted as “fully protecting] quality assurance/peer review records from discovery .. ..” Dorris, 460 Mich at 40. For example, in Attorney General v Bruce, 422 Mich 157, 164-165; 369 NW2d 826 (1985), we rejected the Attorney General’s argument that the privilege “was intended only to protect the confidentiality of peer review proceedings from discovery in circuit court proceedings (i.e., malpractice actions). . . .” Instead, we held that the privilege protects from disclosure records sought by the Board of Medicine and the Department of Licensing and Regulation and ordered by investigative subpoena to be produced. Id. at 173. Similarly, in In re Investigation of Lieberman, 250 Mich App 381, 389; 646 NW2d 199 (2002), the Court of Appeals held that the privilege protects from disclosure records sought pursuant to a search warrant in a criminal investigation. Indeed, after reviewing the language of § 21515, the court concluded that “the Legislature has imposed a comprehensive ban on the disclosure of [peer review materials.]” Id. at 387 (emphasis added). The Court of Appeals took a more constricted view of the peer review privilege in Harrison. In that case, the plaintiff sued a surgeon and the hospital (the defendants) after receiving a burn from a surgical instrument during surgery. At trial, the plaintiff learned that an operating room nurse had authored an incident report. The plaintiff sought to introduce the report. The defendants objected, claiming that the peer review privilege protected the report from introduction. The trial court reviewed the report at an in camera hearing and determined that the facts in the report contradicted the operating room nurse’s deposition testimony. The court found that the report itself was protected by the peer review privilege but ruled that the facts contained in the report, as opposed to the conclusions drawn, should have been documented in the plaintiffs medical record and made available to the plaintiff. The court declared a mistrial and imposed sanctions totaling roughly $54,000 on the defendants and their attorney based on their presentation of a defense inconsistent with the facts contained in the report. In a published opinion, the Court of Appeals addressed whether the peer review privilege applied to the incident report at issue. Relying heavily on caselaw from foreign jurisdictions, the panel found a distinction between “factual information objectively reporting contemporaneous observations or findings and ‘records, data, and knowledge’ gathered to permit an effective review of professional practices.” Harrison, 304 Mich App at 30. It held that “[o]bjective facts gathered contemporaneously with an event do not fall within [the peer review privilege.]” Id. at 32. It reasoned that “[t]o hold otherwise would grant risk managers the power to unilaterally insulate from discovery firsthand observations that the risk manager would prefer remain concealed” and that “[t]he peer-review statutes do not sweep so broadly.” Id. at 34. The panel concluded that the facts recorded on the first page of the incident report were not privileged, but that the remainder of the incident report was protected because it reflected a deliberative review process. However, contrary to the Harrison panel’s conclusion, the peer review statutes do not contain an exception for objective facts contained in an otherwise privileged incident report. Both §§ 20175(8) and 21515 protect the “records, data, and knowledge” collected for or by a peer review committee. While the words “record,” “data,” and “knowledge” are so common they hardly bear defining, a review of the dictionary definitions of each demonstrates that the Harrison panel’s interpretation contradicts the plain language of the peer review statutes. See Spectrum Health Hosp v Farm Bureau Mut Ins Co of Mich, 492 Mich 503, 515; 821 NW2d 117 (2012) (recognizing that a court “may consult dictionary definitions to give words their common and ordinary meaning”) (citation omitted). “Record” is defined as “an account in writing or the like preserving the memory or knowledge of facts or events.” Random House Webster’s College Dictionary (2001) (emphasis added). “Data” is defined as “individual facts, statistics, or items of information.” Id. (emphasis added). “Knowl edge” is defined as “acquaintance with facts, truths, or principles” or “familiarity or conversance, as by study or experience.” Id. (emphasis added). Because the ordinary meaning of these statutory terms plainly encompasses objective facts, we hold that objective facts are subject to the peer review privilege. We therefore disagree with the Harrison panel’s conclusion that the Legislature intended to exclude from protection objective facts contained in an otherwise peer review privileged incident report. Plaintiff argues that an interpretation of §§ 20175(8) and 21515 that protects objective facts from disclosure would conflict with MCL 333.20175(1), which requires a hospital to “keep and maintain a record for each patient, including a full and complete record of tests and examinations performed, observations made, treatments provided, and. . . the purpose of hospitalization.” However, § 20175(1) does not alter the scope of the peer review privilege. Whereas §§ 20175(8) and 21515 pertain to a hospital’s duty under MCL 333.21513(d) to create a peer review committee that collects and reviews information in an effort to reduce morbidity and mortality and improve patient care, § 20175(1) imposes on a hospital an entirely distinct and unrelated duty—to make a full and complete medical record concerning a patient’s current care. Because these provisions pertain to entirely distinct duties, no conflict exists, and we cannot conclude that the Legislature intended § 20175(1) to create an exception to the peer review privilege. See Bruce, 422 Mich at 167-169 (rejecting an argument that disclosures required by another subsection of § 20175 defeated the peer review privilege). The Harrison panel, certain amici, and plaintiff have expressed concern that a holding that the peer review privilege applies to objective facts in an incident report “would grant risk managers the power to unilaterally insulate from discovery firsthand observations that the risk manager would prefer remain concealed.” Harrison, 304 Mich App at 34. However, although the terms “records,” “data,” and “knowledge” are broad enough to include objective facts, the scope of the privilege is not without limit. Instead, the privilege only applies to records, data, and knowledge that are collected for or by the committee under §§ 20175(8) and 21515 “for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients.” MCL 333.21513(d). See also Dorris, 460 Mich at 40. Moreover, while the peer review privilege may make it more difficult for a party to obtain evidence, the burden on a litigant is mitigated by the fact that he or she may still obtain relevant facts through eyewitness testimony, including from the author of a privileged incident report, and from the patient’s medical record. Finally, if a litigant remains unsatisfied with the statu tory balance struck between disclosing information to patients and protecting peer review materials, any recalibration must be done by the Legislature. See Koontz v Ameritech Servs, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002) (“Because the proper role of the judiciary is to interpret and not write the law, courts simply lack authority to venture beyond the unambiguous text of a statute.”). For the reasons stated above, we reject the Harrison panel’s holding that objective facts gathered contemporaneously with an event do not fall within the peer review privilege. Accordingly, we overrule Harrison to the extent that it is inconsistent with our opinion today. Instead, we hold that §§ 20175(8) and 21515 make privileged all records, data, and knowledge collected for or by a peer review committee in furtherance of its statutorily mandated purpose of reducing morbidity and mortality and improving patient care. This includes objective facts gathered contemporaneously with an event contained in an otherwise privileged incident report. IV APPLICATION Because Harrison was wrongly decided and the trial court relied on Harrison to order production of a portion of the incident report, we vacate the trial court’s May 8, 2014 order in its entirety. The scope of this interlocutory appeal is limited to whether the trial court erred by relying on Harrison to order production of the objective facts found in the incident report. Having answered that question, we remand to the trial court for further proceedings. V. CONCLUSION We conclude that Harrison was wrongly decided, and we overrule the portions of it that are inconsistent with this opinion. Because the trial court in the instant case erred by relying on Harrison to order production of the objective facts contained in the incident report authored by Colvin, we vacate the trial court’s May 8, 2014 order and remand to the trial court for further proceedings consistent with this opinion. Young, C.J., and Markman, Kelly, Zahra, McCormack, and VIVIANO, JJ., concurred. BERNSTEIN, J., took no part in the decision of this case. In this opinion, we use “peer review committee” to refer generally to “individuals or committees assigned a professional review function” under MCL 333.20175(8) and “individuals or committees assigned a review function” under MCL 333.21515. The first peer review statutes were enacted by our Legislature nearly 50 years ago. See MCL 331.422(1) and (2) of the Hospital Licensing Act, 1968 PA 17, repealed by 1978 PA 368. The panel also affirmed the trial court’s decision to sanction defendants but remanded for redetermination of the proper apportionment of the sanctions. Harrison, 304 Mich App at 43-45. To create the objective-facts exception, the Harrison panel relied on several cases from outside our jurisdiction. However, resort to these cases was not permitted because the peer review statutes are unambiguous. See Madugula, 496 Mich at 696. In any event, the cases utilized by the Harrison panel do not support the creation of such an exception. The panel relied upon three cases cited by this Court in Monty v Warren Hosp Corp, 422 Mich 138, 146-147; 366 NW2d 198 (1985): Davidson v Light, 79 FRD 137 (D Colo, 1978), Bredice v Doctors Hosp, 50 FRD 249 (D DC, 1970), and Coburn v Seda, 101 Wash 2d 270; 677 P 2d 173 (Wash, 1984). However, the Monty court relied on those cases as guidance for determining whether a hospital committee was assigned a peer review function, not whether the content of an incident report was protected by the peer review privilege. In addition, a reading of these cases indicates that they shed no light on the scope of our peer review statutes as they either do not discuss a statutory privilege at all (e.g., Bredice and Davidson), or pertain to a statutory privilege materially different from ours (e.g., Coburn). Essentially, plaintiff asks us to read the statutes in pari materia—i.e., construing them together as one law to resolve the alleged conflict. See Int’l Business Machines v Dep’t of Treasury, 496 Mich 642, 652; 852 NW2d 865 (2014) (opinion hy Viviano, J.). Plaintiff argues, in essence, that since a hospital is required to publish certain factual information in the patient’s medical record, it cannot claim the same information is protected by the peer review privilege. However, this argument misapprehends the nature of a privilege under Michigan law. We have long ago “repudiated the theory that once .. . confidential information ha[s] been published, the privilege of objecting to its repetition hats] been waived . ...” Polish Roman Catholic Union of America v Palen, 302 Mich 557, 562; 5 NW2d 463 (1942) (citation omitted). Rather, even though the information may properly be proved from another source—i.e., the medical record or witness testimony-—a hospital may still claim an exemption from disclosing materials that are subject to the peer review privilege. In providing guidance to courts on how to engage in this statutory inquiry, we have previously stated: In determining whether any of the information requested is protected by the statutory privilege, the trial court should bear in mind that mere submission of information to a peer review committee does not satisfy the collection requirement so as to bring the information within the protection of the statute. Also, in deciding whether a particular committee was assigned a review function so that information it collected is protected, the court may wish to consider the hospital’s bylaws and internal regulations, and whether the committee’s function is one of current patient care or retrospective review. [Monty, 422 Mich at 146-147 (citations omitted).] Indeed, by their very nature, privileges “are not designed or intended to facilitate the fact-finding process or to safeguard its integrity,” but “[t]heir effect instead is clearly inhibitive; rather than facilitate the illumination of truth, they shut out the light.” People v Warren, 462 Mich 415, 428; 615 NW2d 691 (2000), quoting 1 McCormick, Evidence (5th ed), § 72, pp 298-299. To the extent plaintiff is arguing that defendant’s failure to comply with its statutory duty to publish certain information in the medical record should be deemed a waiver of the peer review privilege, we reject that claim as well. As noted earlier, hospitals have a statutory duty to maintain a full and complete medical record for each patient, which includes, among other things, observations made and treatments provided to the patient. MCL 333.20175(1). However, deeming the peer review privilege waived is not among the sanctions provided by the Legislature for violations of § 20175(1). See, e.g., MCL 333.20175a, 333.20176(1); see also Fischer v WA Foote Mem Hosp, 261 Mich App 727, 730-731; 683 NW2d 248 (2004) (discussing the ways within the Public Health Code to enforce its provisions). The Harrison panel also found support for its decision in Centennial Healthcare Mgt Corp v Dep’t of Consumer & Indus Servs, 254 Mich App 275; 657 NW2d 746 (2002). However, Centennial is inapposite. Centennial does not address whether a private litigant has a right to review objective facts contained in an otherwise privileged incident report, but instead involves whether an administrative rule promulgated by the Michigan Department of Consumer and Industry Services infringed the peer review privilege. But, to the extent Centennial may be read as contrary to our opinion today, we limit its reasoning and holding to its specific facts.
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Young, C.J. I. INTRODUCTION This Court is yet again faced with a challenge to the Legislature’s education-related funding appropriation for state-imposed mandates under the Headlee Amendment. Plaintiffs are taxpayers and school districts seeking a declaratory judgment that the amount of funding appropriated by the Legislature to fund new and increased recordkeeping requirements is materially deficient. Consistent with our construction of the Head-lee Amendment and our court rules, we have required that plaintiffs bringing an action charging inadequate funding of a legislative mandate under the Headlee Amendment must allege and prove not only that the funding was insufficient, but the type and extent of the harm. Today we make clear that this burden includes the requirement that the plaintiff show the specific amount of underfunding where the Legislature has made at least some appropriation of funds. The special master applied this burden of proof and dismissed plaintiffs’ claims when plaintiffs stated at trial that they would not provide proofs establishing the specific amount of underfunding. The Court of Appeals reversed, requiring plaintiffs only to provide evidence that the methodology used by the Legislature to determine the amount of the appropriation was materially flawed, and remanded the case to the special master for further proceedings. The Court of Appeals’ standard is inconsistent with this Court’s longstanding requirement that a plaintiff alleging inadequate funding must show the type and extent of the funding shortfall. Plaintiffs were properly instructed regarding the burden of proof by the special master before trial and failed to offer proofs concerning the specific amount of the alleged shortfall. Thus, we reverse the judgment of the Court of Appeals and enter a judgment in favor of defendants. II. FACTS AND PROCEDURAL HISTORY A. HISTORY OF ADAIR LITIGATION AND LEGISLATIVE ACTION The legislatively imposed mandates at issue require that school districts collect and report certain information regarding school district performance to the Center for Educational Performance and Information (CEPI). The CEPI was created through Executive Order 2000-9 and 2000 PA 297 and is entrusted to “[coordinate the collection of all data required by state and federal law from districts, intermediate districts, and postsecondary institutions” and “provide information to school leaders, teachers, researchers, and the public,” including “[r]esearch-ready data sets for researchers to perform research that advances this state’s educational performance.” Initially, the state did not make an appropriation to fund the CEPI mandate. As a result, in 2000 plaintiffs commenced a Headlee Amendment action in the Court of Appeals. In the first Adair case decided by this Court, we held that the lack of funding for CEPI reporting requirements presented a “colorable claim under Head-lee” because the mandates “require[d] the districts to actively participate in maintaining data that the state requires for its own purposes,” a requirement that had not existed before that time. After a few additional trips between this Court and the Court of Appeals, the case culminated in Adair v Michigan (Adair I). In Adair I, this Court affirmed the Court of Appeals’ declaratory judgment that the Legislature had violated the prohibition of unfunded mandates (POUM) provision of the Headlee Amendment. We held that, in a case in which the state provides no funding at all to fund a mandate, a POUM Headlee claim does not require proof by a plaintiff of specific increased costs necessitated by the state mandate. In that situation, “a plaintiff need only establish that the state imposed on it a new or increased level of activity without providing any funding to pay for it.” In response to Adair 7, the Legislature enacted MCL 388.1752a, which appropriated about $25 million for the 2010-2011 school year to reimburse local school districts for the cost of the CEPI recordkeeping mandate. The Legislature also added an additional CEPI mandate, the teacher-student data link (TSDL), which requires reporting of data to allow districts “to assess individual teacher impact on student performance.” So, for the 2010-2011 school year, the Legislature made a separate appropriation in the amount of $8.4 million for the newly created TSDL mandate. For the following school year, 2011-2012, the Legislature appropriated approximately $34 million to cover all of the CEPI record keeping requirements, which included money for the TSDL requirements (the “§ 152a appropriation”). Additionally, for both of these school years, the Legislature made a “discretionary nonmandated payment” (the “§ 22b appropriation”). However, these funds were conditioned on furnishing the data as required by the CEPI mandates. The condition currently reads as follows: In order to receive an allocation under subsection (1), each district shall do all of the following: (c) Furnish data and other information required by state and federal law to the center and the department in the form and manner specified by the center or the department, as applicable.[ ] B. THE CURRENT LITIGATION Plaintiffs, more than 450 Michigan school districts together with one individual taxpayer from each district filed an original action in the Court of Appeals challenging the amount of the § 152a appropriation for school year 2010-2011 as inadequate to compensate the school districts for the CEPI requirements. Plaintiffs amended their pleadings to include a similar challenge to the following school year’s appropriation. The Court of Appeals assigned the case to a special master. After discovery, defendants moved for summary disposition under MCR 2.116(C)(10), claiming that plaintiffs could not produce any evidence of the amount of necessary increased costs and that in any case, the § 22b appropriation fully funded the mandates. The master denied defendants’ motion, finding that plaintiffs had presented “more than sufficient evidence to show that the state has underfunded the CEPI mandates ... [and] the [TSDL] mandate.” He also ruled that [pllaintiffs have a ‘higher burden’ which requires them to produce evidence of specific dollar-amount increases in the costs incurred in order to comply with the CEPI requirements. [Adair I, 486 Mich at 480] n 29 .... The Plaintiffs’ poignant argument that the general direction of Adair I mitigates requiring them to establish the insufficiency of the amount of appropriation overlooks the factual distinc tion between Adair I (no appropriation made) and this case (appropriations made). At that point, the master believed that “[o]nce the state establishes an appropriation, the Plaintiffs are equipped to attack whether the amount is sufficient. Indeed, the Plaintiffs’ expert has done just that.” The case proceeded to trial, but during opening statements, plaintiffs’ counsel stated that they would not attempt to prove a specific dollar amount of underfunding, but rather intended to show through expert testimony that the Legislature’s methodology to determine the requisite amount of funding was materially flawed and thus that the appropriation could not be constitutionally adequate under Headlee. At the close of plaintiffs’ opening statement, on the basis of plaintiffs’ refusal to present proofs on the specific amount of alleged funding shortfall, defendants filed a motion for an involuntary dismissal, claiming that plaintiffs were unable or unwilling to meet their burden. Plaintiffs responded that, because this was merely a declaratory action, they need not quantify the extent of the underfunding, but only show that an underfunding occurred. The special master granted defendants’ motion. In a written opinion, the master reiterated that plaintiffs had the burden to establish the specific amount of underfunding. Because plaintiffs declined to offer those proofs, their case was dismissed. Both parties filed objections, and the Court of Appeals reversed the special master’s ruling on the appropriate burden of proof, but affirmed in all other respects. The panel concluded that the special master had relied too heavily on the fact that Adair I involved no legislative funding while this case involves a claim for underfunding. In the Court of Appeals’ view, Adair I stood for the proposition that neither Const 1963, art 9, § 29 nor MCL 21.233 required plaintiffs to prove how much their districts’ costs had increased as a result of a new or increased mandate. Instead, stated the panel, plaintiffs had the “burden to present sufficient evidence to allow the trier of fact to conclude that the method employed by the Legislature to determine the amount of the appropriation was so flawed that it failed to reflect the actual cost to the state if the state were to provide the activity or service mandated as a state requirement. . . .” The Court of Appeals concluded that plaintiffs stood ready to meet this burden through expert testimony, which a trier of fact could find “undermined the validity of the method used by the Legislature to determine the amount of the appropriations at issue .. . ,” The panel remanded to the special master to reopen the proofs. Both parties sought leave to appeal in this Court; we granted defendants’ application for leave to appeal. hi. standard of review Questions of constitutional and statutory interpretation are reviewed de novo. An appellate court reviews de novo a trial court’s ruling on a motion for an involuntary dismissal. IV ANALYSIS Because we are interpreting the Michigan Constitution, the proper focus is on the will of the people ratifying the amendment. “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.” This is the rule of “common understanding,” which is described by Justice Cooley as follows: A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.[ ] This Court locates the common understanding of constitutional text by applying the plain meaning of the text at the time of ratification. Interpretation of a constitutional provision also takes account of “the circumstances leading to the adoption of the provision and the purpose sought to be accomplished.” A. THE HEADLEE AMENDMENT AND IMPLEMENTING LEGISLATION In 1978, the voters passed the Headlee Amendment by initiative. The Headlee Amendment was adopted with “the primary purpose of relieving the electorate from overwhelming and overreaching taxation.” To effectuate its purpose, the amendment set forth “a fairly complex system of revenue and tax limits.” One of these limitations is contained in Const 1963, art 9, § 25, which provides, “The state is prohibited from requiring any new or expanded activities by local governments without full state financing, from reducing the proportion of state spending in the form of aid to local governments, or from shifting the tax burden to local government.” The Headlee Amendment provides for another set of limitations in article 9, § 29. The first sentence of that section provides: The state is hereby prohibited from reducing the state financed proportion of the necessary costs of any existing activity or service required of units of Local Government by state law. The second sentence of § 29 provides: A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs. The first sentence prohibits the state from reducing the state-financed proportion of an existing activity required of local governments; the second generally prohibits new mandates which increase the burden on local governments unless accompanied by funding to offset increased costs. Claims under the first sentence are referred to as “maintenance of support” or “MOS” claims. Claims under the latter sentence are referred to as “prohibition of unfunded mandates” or “POUM” claims. This appeal involves a POUM claim: the plaintiffs contend that the state failed to provide adequate funding for increased services under the CEPI mandates. Shortly after the Headlee Amendment was enacted, the Legislature passed an act to implement the constitutional provisions. The act requires the Legislature to “annually appropriate an amount sufficient to make disbursements to each local unit of government for the necessary cost of each state requirement. . . .” “Necessary cost” means “the net cost of an activity or service provided by a local unit of government.” “Net cost,” in turn, is defined as “the actual cost to the state if the state were to provide the activity or service mandated as a state requirement, unless otherwise determined by the legislature when making a state requirement.” B. ACCEPTANCE OF GENERAL APPROPRIATION AS WAIVER As an initial matter, defendants contend that plaintiff school districts’ acceptance of the “discretionary nonmandated payment”—the § 22b appropriation— constitutes a waiver of any claim that the Legislature has failed to fulfill its Headlee obligations. Because acceptance of the appropriation is conditioned on compliance with the CEPI mandates, defendants contend that such acceptance thereby waives any claim of a constitutional deficiency under the Headlee Amendment. “Waiver is the intentional relinquishment of a known right.” The condition in MCL 388.1622b reads: (3) In order to receive an allocation under subsection (1), each district shall do all of the following: (c) Furnish data and other information required by state and federal law to [CEPI] and the department in the form and manner specified by [CEPI] or the department, as applicable. The proper interpretation of a statute is rendered by reference to its plain language. Examining the language, one searches in vain to find any notice that, by accepting the § 22b appropriation, plaintiffs have thereby relinquished their right to bring a constitutional challenge to the adequacy of funding provided by the Legislature. Indeed, all the § 22b appropriation requires is that the district comply with the statute’s reporting mandates—to “furnish data and other information required by state and federal law to the center and the department”—in exchange for the allocation. The districts are bound to the terms of the condition upon acceptance of the appropriation, but the terms do not include a waiver of any Headlee claim. The only thing the plaintiffs intentionally and voluntarily waived upon acceptance of these funds was the ability to ignore the condition requiring them to furnish data and information as required by the CEPI mandates. C. APPROPRIATE BURDEN OF PROOF This Court has considered Headlee claims arising under both the MOS and POUM sentences of § 29 and has consistently announced that a plaintiff making either claim under the Headlee Amendment must show the type and extent of the alleged shortfall in order to prove its case. In Oakland Co v Michigan, we considered whether, under the Headlee Amendment’s MOS provision, the state unconstitutionally reduced the ratio of financing for county foster care services. In remanding to the lower court for further proceedings, Justice MARILYN Kelly’s plurality opinion stated that “plaintiffs must allege the type and extent of the harm so that the court may determine if a § 29 violation occurred for purposes of making a declaratory judgment. In that way, the state will be aware of the financial adjustment necessary to allow for future compliance.” The Court adopted this plurality position in the majority opinion of the 2004 Adair case, which concerned a POUM claim. Thus, the Court has announced this standard as applicable to both of the sentences in § 29 of the Headlee Amendment, and has done so when the plaintiffs have requested only declaratory relief. In 2007, the Michigan Court Rules were amended in order to clarify that a plaintiff bringing a Headlee claim must plead “with particularity the factual basis for the alleged violation . . . ,” In an action involving § 29, “the plaintiff shall state with particularity the type and extent of the harm and whether there has been a violation of either the first or second sentence of that section.” While the requirement that a plaintiff must allege and prove the type and extent of the harm had been articulated consistently, this Court recognized a narrow exception in Adair I. In that case, we held that, when the state failed to make any appropriation to fund an increased level of activity or service mandated by the state, the plaintiff need not establish the particular amount of increased costs. Instead, if a plaintiff proves that the state required a new or increased level of activity or service without providing any funding, the burden shifts to the state “to demonstrate that no state funding was required because the requirement did not actually increase costs or the increased costs were not necessary.” This exception, however, is explained by the distinct factual scenario facing the Court in that case. We have recognized on multiple occasions that POUM claims are in some respects similar to MOS claims. Significantly, MOS claims and POUM claims concerning an alleged underfunding are quite similar. Both types of claims require a close look at the Legislature’s appropriation in comparison with the mandate in order to evaluate whether the appropriation is sufficient to meet Headlee obligations. This calculus is qualitatively different from a POUM claim in which the Legislature failed to appropriate any funding at all. While the former involves at least some appropriation that the Legislature can argue is sufficient to meet its Headlee obligations, the latter involves the complete absence of funding. A POUM claim alleging no funding is a simpler claim to make, as explained in Adair I, because the Legislature can be said to have completely abdicated its funding duty; all that needs to be shown is that the mandate required some increased level of activity or service. This characteristic—the absolute lack of funding— separates Adair I from Oakland Co and the 2004 Adair case. Thus, Adair I is appropriately limited to situations in which the Legislature has not made any appropriation to cover the cost of a new or increased mandate and is inapplicable to § 29 claims in which some funding has been appropriated. Consistent with prior caselaw and our court rules, we hold that a plaintiff must allege and prove the specific amount of the purported funding shortfall in order to establish the “extent of the harm” caused by the Legislature’s inadequate funding. In other words, to sustain a claim under the Headlee Amendment when the Legislature appropriated at least some amount of funding to cover the cost of a new or expanded mandate, a plaintiff must allege and prove the extent of the “necessary increased cost” of the new or increased activity or service. Requiring a plaintiff to establish the specific amount of a funding is consistent with the Constitution and reduces litigation gamesmanship. By requiring a plaintiff to prove the extent of the underfunding, “the state will be aware of the financial adjustment necessary to allow for future compliance.” In other words, if a plaintiff carries its burden, the Legislature will have a judicially determined amount that it must appropriate in order to comply with Headlee. If a plaintiff were required only to show flaws in the methodology by which the appropriation was determined, further determination of the precise cost would be needed, thus further delaying “full state financing” to the localities guaranteed by our Constitution. The burden of showing the specific amount of funding shortfall is not only consistent with the language of the Headlee Amendment but avoids needless litigation. d. application Before trial, the special master properly made clear that “[p]laintiffs have a ‘higher burden’ which requires them to produce evidence of specific dollar-amount increases in the costs incurred in order to comply with the CEPI requirements.” Nonetheless, during their opening statement, plaintiffs disclaimed any obligation to prove a specific dollar amount of damages, stated that they would not attempt such proofs, and asserted that they intended to prove only that the Legislature’s methodology for determining the amount of funding for the mandates at issue was flawed. Plaintiffs contended that they would carry their preferred burden by presenting expert testimony. Plaintiffs’ expert report concluded that the state’s appropriation was materially lacking because the determinations made by the state were inadequate and incomplete. While the report extensively documented the alleged problems with the Legislature’s methodology in calculating the § 152a appropriation, the report failed to offer any evaluation of the extent of the shortfall. Plaintiffs did not offer, nor did they intend to offer, proofs sufficient to create an issue of fact regarding whether they could carry their burden. Accordingly, we reverse the Court of Appeals’ ruling and reinstate the special master’s involuntary dismissal in favor of defendants because plaintiffs failed to offer facts that would entitle them to relief. Because our precedents as well as our court rules make clear that a plaintiff must allege and prove with specificity the extent of the harm incurred as a result of a legislative funding shortfall, we decline to remand the case for further proceedings. The special master put the plaintiffs on notice before trial that they bore the burden of establishing the specific amount of increased costs. Even though plaintiffs were apprised of their burden, they declined to prepare or offer proofs that would at least create an issue of fact regarding the extent of underfunding. v CONCLUSION We reaffirm and hold that a plaintiff claiming that the Legislature’s appropriation failed to fully fund the cost of a new or increased service or activity must allege and prove the specific amount of the shortfall. Plaintiffs failed to offer any proofs that could entitle them to relief. Thus, we reverse the judgment of the Court of Appeals in part and reinstate the special master’s order of involuntary dismissal. Markman, Kelly, Zahra, McCormack, and Viviano, JJ., concurred with YOUNG, C.J. Const 1963, art 9, §§ 25 to 34. MCL 388.1752. MCL 388.1694a(l)(a). MCL 388.1694a(l)(d)(z¿¿). See Adair v Michigan, 470 Mich 105, 129-130; 680 NW2d 386 (2004). We held that the remaining claims of Headlee violations were barred by res judicata or release, or failed to implicate the Headlee Amendment. See id. at 133. Adair v Michigan, 486 Mich 468; 785 NW2d 119 (2010) (Adair I). See also Adair v Michigan (On Remand), 267 Mich App 583; 705 NW2d 541 (2005); Adair v Michigan (After Remand), 474 Mich 1073 (2006); Adair v Michigan (On Second Remand), 279 Mich App 507; 760 NW2d 544 (2008). Adair I, 486 Mich at 486-487. That litigation ended in 2013 when this Court remanded, for a final time, on an issue concerning attorney fees. Adair v Michigan, 298 Mich App 383; 827 NW2d 740 (2012), rev’d 494 Mich 852 (2013). Adair v Michigan (On Fourth Remand), 301 Mich App 547; 836 NW2d 742 (2013), lv den 495 Mich 914 (2013). See 2010 PA 217. This statute, which has been amended yearly, currently reads in part: As required by the court in the consolidated cases known as Adair v State of Michigan. Michigan supreme court docket nos. 137424 and 137453, from the state school aid fund money appropriated in [MCL 388.1611] there is allocated for 2014-2015 an amount not to exceed $38,000,500.00 to be used solely for the purpose of paying necessary costs related to the state-mandated collection, maintenance, and reporting of data to this state. [MCL 388.1752a(l), as amended by 2014 PA 196.] MCL 388.1694a(l)(d)(i), as amended by 2010 PA 204 (“Data shall include ... [d]ata sets that link teachers to student information, allowing districts to assess individual teacher impact on student performance and consider student growth factors in teacher and principal evaluation systems.”). This mandate was imposed after Adair I. See MCL 388.1694a(9), as amended by 2010 PA 204. See MCL 388.1752a, as amended by 2011 PA 62. See MCL 388.1622b(l), as amended by 2011 PA 62. MCL 388.1622b(3)(c), as amended by 2014 PA 196. Const 1963, art 9, § 32 provides that claims under the Headlee Amendment are brought as an original action in the Court of Appeals. Plaintiffs made two additional claims: (1) that changes to the teachers’ tenure act requiring annual teacher and administrator evaluations constitute Headlee violations; and (2) the manner of funding of the new mandates was unconstitutional because it unconstitutionally reduced per pupil funding. We denied plaintiffs’ cross-application for leave to appeal which sought review of those issues. Adair v Michigan, 495 Mich 937, 938 (2014). MCR 2.116(0(10) provides that the following is a ground for summary disposition: “Except 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.” The special master referred to the motion as one for “directed verdict and/or involuntary dismissal,” and the Court of Appeals referred to the motion as one for directed verdict, though the appropriate label is one for involuntary dismissal because it is a case without a jury. See MCR 2.504(B)(2) (providing that dismissal may be granted “[i]n an action, claim, or hearing tried without a jury... on the ground that, on the facts and the law, the plaintiff has no right to relief”); Samuel D Begola Servs, Inc v Wild Bros, 210 Mich App 636, 639; 534 NW2d 217 (1995) (treating the defendants’ motion for a “directed verdict” as one for involuntary dismissal because the trial court was sitting as the finder of fact). Adair v Michigan, 302 Mich App 305, 308; 839 NW2d 681 (2013). Id. at 316, quoting MCL 21.233(6) (quotation marks omitted). Adair, 302 Mich App at 316-317. Adair, 495 Mich 937. We directed the parties to brief (1) which party has the burden of proving underfunding of a legislative mandate in a challenge under Const 1963, art 9, § 29, (2) what elements of proof axe necessary to sustain such a claim, and (3) whether acceptance of a general appropriation from the Legislature which is specifically conditioned on compliance with reporting requirements pursuant to MCL 388.1622b([3])(c) waives any challenge to the funding level for those requirements under Const 1963, art 9, § 29. {Id. at 937-938.] Makowski v Governor, 495 Mich 465, 470; 852 NW2d 61 (2014). Samuel D Begola, 210 Mich App at 639. Wayne Co v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004). Id. at 468, quoting Cooley, Constitutional Limitations, p 81. Hathcock, 471 Mich at 468-469. People v Tanner, 496 Mich 199, 226; 853 NW2d 653 (2014) (citation omitted). Durant v Michigan, 456 Mich 175, 214; 566 NW2d 272 (1997). Id. at 182. 1979 PA 101, codified at MCL 21.231 et seq. The Legislature was required to implement the provisions of the Headlee Amendment by Const 1963, art 9, § 34. MCL 21.235(1). MCL 21.233(6). Id. “Necessary cost” does not include a cost that does not exceed a de minimis amount, defined as a cost not exceeding $300 per claim. MCL 21.233(6)(c); MCL 21.232(4). See Bailey v Jones, 243 Mich 159, 162; 219 NW 629 (1928). Ford Motor Co v City of Woodhaven, 475 Mich 425, 438-39; 716 NW2d 247 (2006) (“The primary goal of statutory interpretation is to give effect to the Legislature’s intent. The first step is to review the statute’s language. And if the statute is plain and unambiguous, then this Court will apply the statute as written.”) (citations omitted). Not only is no explicit Headlee waiver required, the language of § 22b suggests that the Legislature understood that there was no waiver of Headlee claims. In that very section, MCL 388.1622b(7) specifically contemplates potential Headlee claims by school districts against the state by setting up a procedure for reimbursing the districts in the event of a successful claim. The inclusion of this provision belies the defendants’ argument that acceptance of the appropriation waives any Head-lee claim. MCL 388.1622b(7) provides: It is the intent of the legislature that all constitutional obligations of this state have heen fully funded.... If a claim is made by an entity receiving funds under this article that challenges the legislative determination of the adequacy of this funding or alleges that there exists an unfunded constitutional requirement, the state budget director may escrow or allocate from the discretionary funds for nonmandated payments under this section the amount as may be necessary to satisfy the claim before making any payments to districts.... Moreover, even though the condition does not have the effect the defendants contend it does, it still serves a purpose. It serves as an enforcement mechanism to ensure a district’s compliance with the mandate without requiring the state to bring a suit for declaratory or injunctive relief to do so. Oakland Co v Michigan, 456 Mich 144; 566 NW2d 616 (1997). Id. at 166 (Marilyn Kelly, J., plurality opinion) (emphasis added). Adair, 470 Mich at 119-120, quoting Oakland Co, 456 Mich at 166 (Marilyn Kelly, J., plurality opinion) (emphasis added). MCR 2.112(M). Id. Moreover, in a POUM action, “the plaintiff shall state with particularity the activity or service involved.” Id. Adair I, 486 Mich at 480. Id. See Adair, 470 Mich at 120 n 13; Judicial Attorneys Ass’n v Michigan, 460 Mich 590, 598 n 2; 597 NW2d 113 (1999) (stating that the two sentences must he read together because they were aimed at the alleviation of two possible manifestations of the same voter concern), quoting Schmidt v Dep’t of Ed, 441 Mich 236, 250-251; 490 NW2d 584 (1992). See Adair I, 486 Mich at 483-485. Indeed, even in Adair I, we noted that a “higher burden” would likely apply in POUM cases such as this, where “the state did appropriate funds for the new activity or service.” Id. at 480 n 29 (emphasis added). Defendants argue that plaintiffs should be held to a heightened “clear and convincing evidence” standard, relying on 46th Circuit Trial Court v Crawford Co, 476 Mich 131, 149; 719 NW2d 553 (2006). That case, however, concerned the narrow situation in which a court seeks to exercise its “inherent power” to compel counties to provide funding where the trial court serving those counties “has not received sufficient funding to operate at a serviceable level.” Id. at 160 (opinion by Maekman, J.). This standard was appropriate when, as in 46th Trial Court, separation of powers concerns warranted that the judiciary respect the coordinate powers of the other branches. That heightened evidentiary standard has never been applied in our Headlee jurisprudence, and we decline to do so today. Const 1963, art 9, § 29. There remains an issue whether the definition of “net cost” in the Headlee implementing legislation, MCL 21.233(6), which focuses on the cost to the state, is consistent with Const 1963, art 9, § 29, which focuses the cost to the local unit of government. There is an apparent tension between the Constitution and the statute concerning the appropriate measure of cost. Members of this Court have noted this tension before, see Adair 1,486 Mich at 506 n 17 (Markman, J., dissenting), but because the issue was not raised by either party, we decline today to address it. Williams v Hofley Mfg Co, 430 Mich 603, 605 n 1; 424 NW2d 278 (1988) (refusing to consider a constitutional issue that, as here, "was not raised, preserved, or briefed by the parties”). As plaintiffs declined to show any specific dollar amount of cost before the special master, it is also not necessary to address the appropriate measure of cost today. Adair, 470 Mich at 119-120, quoting Oakland Co, 456 Mich at 166 (Marilyn Kelly, J., plurality opinion). Const 1963, art 9, § 25. See MCR 2.504(B)(2). As noted, the special master ruled in his opinion and order regarding defendants’ motion for summary disposition that ‘‘[pjlaintiffs have a ‘higher burden’ which requires them to produce evidence of specific dollar-amount increases in the costs incurred in order to comply with the CEPI requirements.” Despite this ruling, plaintiffs maintained during their opening statement that “we do not have the burden to prove specific dollar damages accrued.” Defendants promptly moved for dismissal, observing that plaintiffs were apparently unwilling or unable to abide by the special master’s ruling. Plaintiffs responded that the substance of the special master’s ruling was that their expert report constituted “more than sufficient evidence to show that the state has [underfunded] the CEPI mandate,” so that they had no burden beyond this to show a specific dollar amount of damages. We see no basis for plaintiffs’ position. The special master’s opinion and order stated that the expert report constituted “ ‘independent evidence’ of a genuine factual dispute because, viewed most favorably to the [p]laintiffs, it rebuts the [defendants’ argument that the [p]laintiffs have ‘refused to satisfy their burden of proof that the legislative appropriation is insufficient to pay their necessary increase[d] costs.’ ” That is, the special master only rejected defendants’ argument that plaintiffs failed to show that the legislative appropriation was “insufficient.” This rejection was consistent with his ruling that plaintiffs would be required to show a specific dollar amount at trial. Given that plaintiffs declined to offer proofs in accordance with the special master’s ruling, we now conclude that further proceedings are unwarranted. We do not disturb the balance of the Court of Appeals’ holdings not addressed in this opinion.
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Memorandum Opinion. We consider in this case whether copies of video surveillance recordings created by third parties but received by defendants during the course of pending criminal misdemeanor proceedings constitute “public records” within the meaning of the Freedom of Information Act (FOIA), MCL 15.231 et seq., thus requiring their disclosure by defendants. For the reasons stated in this opinion, we conclude that, contrary to the lower courts’ opinions, the video surveillance recordings are public records within the meaning of FOIA. Accordingly, and in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for further proceedings consistent with this opinion. The purpose of FOIA is to provide to the people of Michigan “full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees,” thereby allowing them to “fully participate in the democratic process.” MCL 15.231(2). As a result, except under certain specifically delineated exceptions, see MCL 15.243, a person who “provid[es] a public body’s FOIA coordinator with a written request that describes a public record sufficiently to enable the public body to find the public record” is entitled “to inspect, copy, or receive copies of the requested public record of the public body.” MCL 15.233(1). See also Coblentz v City of Novi, 475 Mich 558, 573; 719 NW2d 73 (2006) (“A FOIA request must be fulfilled unless MCL 15.243 lists an applicable specific exemption.”). The FOIA further defines “public record” as “a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. . . .” MCL 15.232(e). “Writing,” in turn, is defined broadly to include any “means of recording,” including “pictures” and “sounds ... or combinations thereof. . . .” MCL 15.232(h). In this case, plaintiff initiated a FOIA request, and ultimately this FOIA lawsuit, to receive materials related to pending criminal proceedings that were in defendants’ possession, including video surveillance recordings created by private businesses. Defendants assert that the surveillance recordings are not public records within the meaning of FOIA and, as a result, did not need to be disclosed to plaintiff under MCL 15.233(1). The Wayne Circuit Court agreed with defendants and granted summary disposition in their favor. Plaintiff appealed by right, and the Court of Appeals affirmed in a split decision. Amberg v Dearborn, unpublished opinion per curiam of the Court of Appeals, issued March 25, 2014 (Docket No. 311722). The parties do not dispute that video recordings are “writings” within the meaning of FOIA. Nor do they dispute that these particular video surveillance recordings are “in the possession of” and “retained by” defendants, both of which are public bodies. What is in dispute is whether the recordings were in the possession of or retained by defendants “in the performance of an official function, from the time [they were] created.” MCL 15.232(e). This requirement makes clear that the mere possession of the recordings by defendants is not sufficient to make them public records. Detroit News, Inc v Detroit, 204 Mich App 720, 724-725; 516 NW2d 151 (1994). However, because FOIA “does not require that the record[s] be created by the public body,” that the recordings were created by private entities does not necessarily insulate the records from FOIA. Id. at 724. In short, what ultimately determines whether records in the possession of a public body are public records within the meaning of FOIA is whether the public body prepared, owned, used, possessed, or retained them in the performance of an official function. On this question, we agree with the dissenting Court of Appeals judge that the recordings at issue in this case were public records because they were in the possession of or retained by defendants “in the performance of an official function, from the time [they were] created.” MCL 15.232(e). The undisputed facts show that defendants received copies of the recordings as relevant evidence in a pending misdemeanor criminal matter. The Court of Appeals majority claimed that the defendants did not use the recordings in the performance of an official function—specifically, their issuance of a criminal misdemeanor citation—because they did not obtain the recordings until after they issued the citation. While this may be true, the citation nevertheless remained pending when defendants received the recordings, and the issuance of the citation is not the only .official function that we must consider. In other words, even if the recordings did not factor into defendants’ decision to issue a citation, they were nevertheless collected as evidence by defendants to support that decision. Indeed, that the relevant police file (which was disclosed to plaintiff) referred to the recordings (and to how defendants acquired them) underscores defendants’ official purpose in acquiring them. As a result, the recordings are public records within the meaning of FOIA, and defendants were required to produce them in response to plaintiffs FOIA request. The circuit court, therefore, erred when it granted defendants’ motion for summary disposition. Defendants also claim that this case has been rendered moot by their eventual release of the recordings to plaintiff. However, “[t]he mere fact that plaintiffs substantive claim under the FOIA was rendered moot by disclosure of the records after plaintiff commenced the circuit court action is not determinative of plaintiffs entitlement to fees and costs under MCL 15.240(6).” Thomas v New Baltimore, 254 Mich App 196, 202; 657 NW2d 530 (2002). MCL 15.240(6) allows a plaintiff to recover “reasonable attorneys’ fees, costs, and disbursements” in the event “a person asserting the right to . . . receive a copy of all or a portion of a public record prevails” in a FOIA action. To “prevail” in a FOIA action within the meaning of MCL 15.240(6), a court must conclude that “the action was reasonably necessary to compel the disclosure [of public records], and [that] the action had a substantial causative effect on the delivery of the information to the plaintiff.” Scharret v City of Berkley, 249 Mich App 405, 414; 642 NW2d 685 (2002) (emphasis omitted). The Court of Appeals unanimously agreed that plaintiff is precluded from recovering under MCL 15.240(6) for allegedly abandoning those claims. Contrary to the Court of Appeals’ assertion, however, plaintiff never abandoned his claim for fees and costs under MCL 15.240(6). Indeed, he sought fees and costs in his complaint, in his brief in opposition to defendants’ motion for summary disposition, in his brief in the Court of Appeals, and in his application for leave to appeal in this Court. Now that this Court orders defendants’ motion for summary disposition to be denied, plaintiffs action can proceed in the Wayne Circuit Court for consideration, on a proper motion, of whether he is entitled to costs and fees under MCL 15.240(6). We therefore reverse the judgments of the lower courts and remand this case to the Wayne Circuit Court for entry of an order denying defendants’ motion for summary disposition and for further proceedings not inconsistent with this opinion, including, on a proper motion, a determination whether plaintiff is entitled to reasonable attorney fees, costs, and disbursements under MCL 15.240(6). In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. Young, C.J., and Cavanagh, Markman, Kelly, Zahra, McCormack, and Viviano, JJ., concurred. The language “from the time it is created” in the definition of the term “public record” was initially included in MCL 15.232(e) to make clear that FOIA applied to records “irrespective of the date the document^] [were] prepared,” i.e., to records created before FOIA took effect. OAG, 1979-1980, No. 5500, pp 255, 263-264 (July 23, 1979). See also Detroit News, Inc v Detroit, 204 Mich App 720, 725; 516 NW2d 151 (1994) (“A writing can become a public record after its creation. We understand the phrase ‘from the time it is created’ to mean that the ownership, use, possession, or retention by the public body can be at any point from creation of the record onward.”). MCL 15.243(l)(b) provides an exemption to the disclosure requirement for “ [¡Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would” interfere with law enforcement proceedings, deprive a person of the right to a fair trial, constitute an unwarranted invasion of personal privacy, disclose confidential sources, disclose investigative techniques, or endanger the life or safety of law enforcement personnel. Defendants do not claim that the law-enforcement exemption applies to these recordings. The Court of Appeals considered the fact that the Wayne County prosecutor subpoenaed the recordings to be of importance because it believed that the same mechanism would have been available to plaintiff in his role as defense counsel in the underlying misdemeanor proceedings. But see MCR 6.001(D) (“Depositions and other discovery proceedings under subchapter 2.300 may not be taken for the purposes of discovery in cases governed by this chapter.”). Nevertheless, whether the recordings were available to plaintiff by another method is irrelevant to whether the recordings are public records: FOIA does not define public records by reference to their potential availability by other methods, only by reference to the public body’s use of the records. Consequently, it was improper for the Court of Appeals to rely on this fact in support of its conclusion that the recordings were not public records. The fact that fees and costs remain available to a plaintiff in spite of the intervening release of public records is consistent with FOIA’s stated purpose of ensuring that people have “complete information regarding the affairs of government... .” MCL 15.231(2). The Legislature has determined that people who successfully assert their right to access public records that have been withheld by a public body in violation of FOIA should not bear the additional burden of shouldering the cost of a lawsuit to obtain that access. To penalize successful litigants simply because that success comes in the form of nonjudicial relief would hinder the ability of people who lack the resources to sustain their successful FOIA actions to receive complete information regarding the affairs of government in the face of a public body’s intransigence. Walloon Lake Water Sys, Inc v Melrose Twp, 163 Mich App 726, 733-734; 415 NW2d 292 (1987). Additionally, MCL 15.240(7) provides for punitive damages if “the public body has arbitrarily and capriciously violated [FOIA] by refusal or delay in disclosing or providing copies of a public record.” Although plaintiffs complaint sought punitive damages under MCL 15.240(7), plaintiff has abandoned this claim for relief because his brief in opposition to defendants’ motion for summary disposition only asserted a claim of attorney fees and costs under MCL 15.240(6) and he did not otherwise develop his argument that he was entitled to punitive damages under MCL 15.240(7) over and above attorney fees and costs under MCL 15.240(6).
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PER CURIAM. In this case involving a claim for unemployment benefits, we must determine whether the lower courts applied the proper standard for reviewing determinations made by an administrative agency. Specifically, claimant was terminated from her employment for willfully violating her employer’s computer use policy. The state’s unemployment agency denied her claim for unemployment benefits and this decision was affirmed by an administrative law judge (ALJ). In turn, the Michigan Compensation Appellate Commission (MCAC) affirmed the ALJ’s decision, holding that the decision was made in conformity with the facts as developed at the hearing and properly applied the law to the facts. On appeal to the circuit court, however, the court concluded that, because claimant violated her employer’s policy to assist a customer, the conduct did not warrant a denial of unemployment benefits. The Court of Appeals, in a published opinion, affirmed the circuit court, agreeing that claimant’s violation of her employer’s rules was not sufficiently egregious to deny the claimant benefits. We reverse the judgment of the Court of Appeals and we reinstate the judgment of the MCAC. Both the Wayne Circuit Court and the Court of Appeals applied an incorrect standard of review by substituting their own assessment of the relative severity of the claimant’s violation of her employer’s rules for the assessment of the MCAC. The MCAC’s assessment of the claimant’s conduct was made within the correct legal framework and, therefore, was authorized by law and was not contrary to law, and the courts below improperly reweighed the evidence in order to reach a different assessment in violation of Const 1963, art 6, § 28 and MCL 421.38(1). I. BASIC FACTS AND PROCEEDINGS Claimant, Carnice Hodge, was employed as a security guard with U.S. Security Associates, Inc (USSA). On November 11, 2008, shortly after being hired, Hodge signed an acknowledgement of USSA’s “Security Officer’s Guide,” which provided, in relevant part, that the “ [unauthorized use of client facilities or equipment, including copiers, fax machines, computers, the internet, forklifts, and vehicles” may result in immediate termination. USSA had a contract to provide security at Detroit Metropolitan Airport, and she was assigned to work at the airport. Despite acknowledgement of USSA’s “Security Officer’s Guide,” on January 27, 2011, Hodge accessed the airport’s computer system in order to assist a passenger by retrieving departure information. The parties agree to the following facts: (1) USSA had a policy that prohibited employees from accessing airport computers, (2) Hodge knew of this policy, (3) Hodge had violated this policy on some occasions in the past, (4) Hodge never received any instruction or approval to violate this policy, and (5) Hodge violated this policy on January 27, 2011, when she accessed the airport’s computer system in order to retrieve departure data for a passenger. Given these facts, the ALJ concluded that Hodge’s reason for using the airport computer was irrelevant because USSA’s policy prohibited computer access for any reason. The ALJ concluded that the unauthorized computer access constituted misconduct, disqualifying Hodge from benefits under MCL 421.29(l)(b), because Hodge “was discharged for reasons which would constitute behavior beneath the standard the [e]mployer had reason to expect. .. ,” The MCAC upheld that decision, ruling that the ALJ’s decision conformed to the facts as developed at the administrative hearing and that the ALJ properly applied the law to the facts. Michigan’s Constitution sets forth the guiding principles of how courts should review a decision of an administrative body. It provides: All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.[ ] Consistent with this provision, the Michigan Employment Security Act, MCL 421.1 et seq., expressly provides for the direct review of unemployment benefit claims. Specifically, MCL 421.34 addresses an appeal from an ALJ to the MCAC. MCL 421.38 then addresses an appeal from the MCAC to a circuit court: The circuit court... may review questions of fact and law on the record made before the administrative law judge and the Michigan compensation appellate commission involved in a final order or decision of the [MCAC],... but the [circuit] court may reverse an order or decision only if it finds that the order or decision is contrary to law or is not supported by competent, material, and substantial evidence on the whole record.[ ] Using this standard, a circuit court must affirm a decision of the ALJ and the MCAC if it conforms to the law, and if competent, material, and substantial evidence supports it. A reviewing court is not at liberty to substitute its own judgment for a decision of the MCAC that is supported with substantial evidence. The Court of Appeals then reviews a circuit court’s decision “to determine whether the lower court applied correct legal principles and whether it misapprehended or misapplied the substantial evidence test to the agency’s factual findings . . . .” III. ANALYSIS We conclude that both the circuit court and Court of Appeals erred by departing from the applicable standard of review. The circuit court determined that Hodge ultimately had to make a decision between two conflicting policies: one, to not use the airport’s computer system, and two, to assist passengers by retrieving departure information. The lower court record, however, does not contain any evidence of a stated policy to assist passengers by retrieving departure information. Even if such a policy can be implied from the record, the ALJ determined, in a factual finding, that the most weight should be given to the expressly stated policy against access of the airport’s computer system. Thus, the circuit court erred when it discounted the stated policy of Hodge’s employer and, instead, credited Hodge with complying with a nonexistent policy of assisting passengers by retrieving departure information. Likewise, the Court of Appeals erred by determining that Hodge’s act of helping a passenger actually benefitted USSA. The panel reached this conclusion despite the ALJ’s contrary finding that Hodge’s violation was so severe that it went against USSA’s interest. Instead of determining whether factual assessments made by the agency were supported by substantial evidence, both the lower courts engaged in an unbridled effort to reevaluate the ALJ’s factual findings. Thé ALJ, the only adjudicator who actually heard testimony and observed the demeanor of the witnesses while testifying, reviewed all the evidence in the record and made findings of fact based on the credibility of witnesses and weight of the evidence. The ALJ ultimately determined that Hodge’s violation of the computer policy was a deliberate disregard of USSA’s interest and that Hodge was discharged for reasons that would constitute behavior beneath the standard expected of employees. Thus, the ALJ disqualified Hodge from unemployment benefits for committing misconduct, in accordance with MCL 421.29(l)(b), and most prominently defined in Carter, 364 Mich at 541. The ALJ reached this conclusion by giving weight to evidence within the lower record. The lower courts should have given deference to the ALJ and the MCAC by reviewing those decisions only to ensure conformity with the law and the existence of competent, material, and substantial evidence. In sum, the lower courts improperly discounted the ALJ’s findings to apply their own factual assessments, in violation of Const 1963, art 6, § 28 and MCL 421.38(1). IV CONCLUSION The application for leave to appeal the July 15, 2014 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals and we reinstate the judgment of the Michigan Compensation Appellate Commission. Young, C.J., and Markman, Kelly, Zahra, McCormack, Viviano, and Bernstein, JJ., concurred. MCL 421.29(1) reads, in pertinent part: (1) Except as provided in subsection (5), an individual is disqualified from receiving benefits if he or she: (b) Was suspended or discharged for misconduct connected with the individual’s work or for intoxication while at work. [Emphasis added.] In Carter v Employment Security Comm, 364 Mich 538, 541; 111 NW2d 817 (1961), this Court defined “misconduct” as including “such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee ....” Const 1963, art 6, § 28. MCL 421.38(1). Smith v Employment Security Comm, 410 Mich 231, 256; 301 NW2d 285 (1981). VanZandt v State Employees’ Retirement Sys, 266 Mich App 579, 585, 701 NW2d 214 (2005). The circuit court inaccurately characterized this case as placing Hodge in a dilemma in which she had to choose to violate one of two company policies. There is no evidence that it was the policy of Hodge’s employer that employees assist passengers with flight information. Hodge admitted as much during a July 13, 2011 hearing with the AU. When asked if there is “anything in the policy that says it’s okay to violate these rules [to not access the airport’s computers] so long as you’re assisting a passenger,” Hodge responded “no.” But even if such a policy existed, there was no dilemma presented. Hodge could have complied with the express policy barring the use of airport computers and at the same time assisted the passenger seeking flight departure information by directing the passenger to airport personnel authorized to obtain and provide flight information to passengers. Hodge v US Security Assoc, Inc, 306 Mich App 139; 855 NW2d 513 (2014). Hodge claims that the lower courts applied the proper standard of review and reversed the MCAC because its decision did not conform to the law. Specifically, Hodge claims that the test for “misconduct” as set forth by this Court in Carter was not satisfied by the undisputed facts presented in this case. We disagree. The test for “misconduct,” first and foremost, looks to whether the claimant’s conduct showed a willful disregard of her employer’s interest. One example of such disregard is the deliberate violation of standards of behavior that the employer has the right to expect of its employees. Such standards are set out in an employer’s policy, and in this case that policy clearly and unequivocally prohibited the use of the airport’s computers. Hodge was fully aware of the policy and knew that, by going to the computer to check on flight information, she was violating that policy. In short, plainly and unequivocally, Hodge engaged in “misconduct” as defined in Carter.
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KELLY, J. By 2005 PA 44, the Legislature amended MCL 600.2919a(l)(a) to create a cause of action against someone “converting property to [that] person’s own use.” In this case, we consider whether this statutory language is coextensive with the common-law tort of conversion or, if not, what additional conduct is required to show that a defendant converted property to his, her, or its “own use.” We hold that “converting property to [that] person’s own use,” as used in MCL 600.2919a, is not coextensive with common-law conversion. By enacting MCL 600.2919a, the Legislature intended to create a separate statutory cause of action for conversion “in addition to any other right or remedy” a victim of conversion could obtain at common law. In this case, defendant argues that conversion “to the other person’s own use” requires a showing that the other person used the converted property for the property’s common or intended purpose. We decline to adopt such a narrow interpretation of “own use.” Rather, we hold that the separate statutory cause of action for conversion “to the other person’s own use” under MCL 600.2919a(l)(a) requires a showing that the defendant employed the converted property for some purpose personal to the defendant’s interests, even if that purpose is not the object’s ordinarily intended purpose. In this case, plaintiff proffered evidence at trial that would allow the jury to conclude that defendant used the wine for some purpose personal to defendant’s interests. As a result, the circuit court erred by granting defendant’s motion for directed verdict on this claim. We affirm the judgment of the Court of Appeals and remand this case to the Kent Circuit Court for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY Plaintiff, Aroma Wines & Equipment, Inc., is a wholesale wine importer and distributor. Defendant, Columbian Distribution Services, Inc., operates warehouses in Michigan. Starting in 2006, Aroma agreed to rent some of Columbian’s climate-controlled warehouse space to store its wine while awaiting sale. According to the parties’ agreement, Columbian was required to maintain the wine within a temperature range of 50 to 65 degrees Fahrenheit. While the agreement required Columbian to provide Aroma with notice before Columbian could transport Aroma’s wine to a different warehouse complex, Columbian reserved the right under the agreement to move the wine without notice “within and between any one or more of the warehouse buildings which comprise the warehouse complex” identified in the agreement. Aroma’s sales declined sharply during 2008, and Aroma began falling behind on its monthly payments to Columbian. In January 2009, Columbian notified Aroma that it was asserting a lien on Aroma’s wine and that Aroma could not pick up any more wine or ship any more orders until past due invoices were paid. In March 2009, Columbian released to Aroma a small portion of its wine in exchange for a $1,000 payment on Aroma’s account. Notwithstanding this payment, Columbian asserted that Aroma had accrued a past-due balance of more than $20,000 on the account. At some point during this dispute, and contrary to the terms of the contract, Columbian removed the wine from its climate-controlled space and transported it to an uncontrolled environment. Aroma alleges that Columbian moved its wine to rent the space to higher-paying customers. Columbian concedes that it moved Aroma’s wine but claims that the move was temporary, that its purpose was to renovate the climate-controlled space and thereby increase its storage capacity, and that none of the wine was exposed to extreme temperature conditions. Aroma claims that the temperature changes destroyed the wine’s salability. Aroma filed the instant suit in the Kent Circuit Court. Its second amended complaint alleged four separate causes of action: (1) breach of contract, (2) violation of the Uniform Commercial Code, (3) common-law conversion, and (4) statutory conversion under MCL 600.2919a(l)(a). As part of its statutory conversion claim, Aroma alleged that Columbian “converted [Aroma’s] wine inventory to its own use” and sought treble damages for the alleged statutory conversion. In response, Columbian countersued for breach of contract based on Aroma’s nonpayment of rent. The case proceeded to trial. At the close of Aroma’s proofs, Columbian moved for a directed verdict on Aroma’s fourth count, the statutory conversion claim, arguing that Aroma had failed to provide any evidence to support its assertion that Columbian converted Aroma’s wine to its own use. In support of the motion, Columbian emphasized that implicit in the definition of the word “use” is an inference limiting the definition to “using something for the purpose . . . intended by the nature of the product or good.” Aroma sought a broader interpretation of “use” that did not limit its scope to acts involving the wine’s intended purpose but instead encompassed acts by which the converter exercised its dominion and control over the wine. Under this interpretation, then, Columbian could “use” Aroma’s wine by asserting dominion and control over that wine as leverage in the dispute over the balance due Columbian. The court agreed with Columbian’s interpretation of “use,” concluded that “one would have to drink [the wine] or perhaps sell it” to use' it, and granted Columbian’s motion for a directed verdict on Aroma’s statutory conversion claim. Trial continued on Aroma’s remaining counts and on Columbian’s counterclaim. At the conclusion of the trial, the jury found that Columbian had breached its contract with Aroma and converted Aroma’s wine, awarding Aroma damages totaling $275,000. The jury also found that Aroma did not breach its contract with Columbian and, as a result, did not offset the award granted to Aroma by any amount. Aroma appealed the circuit court’s decision to grant Columbian’s motion for a directed verdict on Aroma’s statutory conversion claim. The Court of Appeals reversed, holding that the circuit court’s interpretation of “use” was too narrow. While the panel noted the various definitions of “use,” it determined that “most relevant in the context of conversion, ‘use’ is defined as ‘to employ for some purpose[.]’ ” The panel explained that contrary to the circuit court’s conclusion, “drinking or selling the wine are not the only ways that [Columbian] could have employed [Aroma’s] wine to its own purposes.” Because Aroma “presented some evidence to support its theory that [Columbian] filled the temperature-controlled storage space that [Aroma’s] wine was moved out of with other customers’ products,” and because Columbian’s claim that it was engaged in an expansion project “itself could be considered an act of employing the wine to [its] own purposes,” Columbian was not entitled to a directed verdict. Rather, the panel concluded that [i]f a jury believed the evidence showing that [Columbian] moved [Aroma’s] wine for its own purposes—whether it be to sell the space to other customers or complete a construction project—or that it used the wine as leverage against [Aroma], it could have determined that [Columbian] converted the wine to its own use! - As a result, the Court of Appeals remanded this case to the circuit court for such a jury determination. Both parties then sought leave to appeal the Court of Appeals’ interpretation of “own use.” Aroma’s appeal (Docket No. 148907) claimed that, like the circuit court, the Court of Appeals had erroneously defined statutory conversion as containing an additional element beyond those required to show common-law conversion. On this theory, and on the basis of the jury’s finding of common-law conversion at trial, no further proceedings on the question of statutory conversion would be necessary and Columbian would be liable for statutory conversion. Columbian agreed with the Court of Appeals that statutory conversion requires a separate finding that the conversion was to the converter’s “own use,” but filed a separate application for leave to appeal (Docket No. 148909) that sought to reinstate the circuit court’s narrower definition of “own use.” We granted both parties’ applications for leave to appeal, limited to the single issue regarding “the proper interpretation of ‘converting property to the other person’s own use,’ as used in MCL 600.2919a.” II. standard of review We review de novo a trial court’s decision on a motion for a directed verdict. A party is entitled to a directed verdict if the evidence, when viewed in the light most favorable to the nonmoving party, fails to establish a claim as a matter of law. We also review de novo questions of statutory interpretation. “When interpreting a statute, we follow the established rules of statutory construction, the foremost of which is to discern and give effect to the intent of the Legislature.” The language of the statute is the most reliable evidence of that intent, and we enforce the clear and unambiguous language of the statute as written. “Effect should be given to every phrase, clause, and word in the statute and, whenever possible, no word should be treated as surplusage or rendered nugatory.” III. LEGAL ANALYSIS Under the common law, conversion is “ ‘any distinct act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein.’ ” At issue here is whether a plaintiff who has proved common-law conversion necessarily has a cause of action under MCL 600.2919a(l)(a) and, if not, what additional conduct is required to show that a defendant converted property to his, her, or its own use. We begin, then, with the text of MCL 600.2919a, which states in full: (1) A person damaged as a result of either or both of the following may recover 3 times the amount of actual damages, plus costs and reasonable attorney fees: (a) Another person’s stealing or embezzling property or converting property to the other person’s own use. (b) Another person’s buying, receiving, possessing, concealing, or aiding in the concealment of stolen, embezzled, or converted property when the person buying, receiving, possessing, concealing, or aiding in the concealment of stolen, embezzled, or converted property knew that the property was stolen, embezzled, or converted. (2) The remedy provided by this section is in addition to any other right or remedy the person may have at law or otherwise.[ ] Aroma’s second amended complaint alleges that Columbian “converted [Aroma’s] wine inventory to its own use” and that, as a result, MCL 600.2919a(l)(a) “applies to the facts of this case.” Words in a statute are interpreted “according to the common and approved usage of the language,” but “technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” In addition, “when the Legislature chooses to employ a common-law term without indicating an intent to alter the common law, the term will be interpreted consistent with its common-law meaning.” The word “converting,” used in MCL 600.2919a(l)(a), is one word that has acquired a peculiar and appropriate meaning in the law because it is derived from the common-law tort identified above and is used in that context here. Nevertheless, that is only the beginning of our analysis of the phrase “converting property to the other person’s own use.” Aroma claims that the jury’s verdict against Columbian for common-law conversion necessarily means that Columbian had violated its statutory counterpart, namely, MCL 600.2919a(l)(a). Under this theory, common-law conversion originated as “conversion to the other person’s own use” and, as a result, the Legislature’s use of the phrase “converting to the other person’s own use” simply identified common-law conversion as, by itself, sufficient to establish a defendant’s fault for purposes of MCL 600.2919a(l)(a). To assess the validity of this argument we turn to the history of common-law conversion. A. COMMON-LAW CONVERSION According to Blackstone, several distinct actions in tort originated from the principle that “if an acquisition of goods by either force or fraud were allowed to be a sufficient title, all property would soon be confined to the most strong, or the most cunning” and all other people “could never be secure of their possessions.” The common law secures this right to personal property by allowing someone wrongfully deprived of his or her property to recover either that property or monetary damages, or both, for the wrongful deprivation. Three distinct causes of action are relevant to our analysis. Each arose out of the distinct ways that a wrongful deprivation could occur. Someone who wrongfully took property was liable in trespass to the property owner. Someone who wrongfully detained property that came to that person legally was liable in detinue to the property owner. Someone who refused to return lost property to its rightful owner, instead using it himself or herself or disposing of it to another, was liable in trover. This latter cause of action, arising out of the finder’s conversion of the property, was “invented through the ingenuity of some long forgotten common law pleader” who sought “to fill in the gaps left by the actions of trespass . . . and detinue .. . .” Correspondingly, Blackstone explained the origin of trover as allowing the “recovery of damages against such person as had found another’s goods, and refused to deliver them on demand, but converted them to his own use.” In a technical sense, trover was originally actionable only when the property was “lost to the true owner” in perpetuity, because to convert goods meant to dispose of them, that is, “to make away with them, to deal with them in such a way that neither owner nor wrongdoer had. any further possession of them; for example, by consuming them, or by destroying them, or by selling them, or otherwise delivering them to some third person.” “[M]ere detention” of another person’s property “is not a conversion in the original sense.” Nevertheless, “[a]lmost from the beginning. . . the effort was made to expand trover into the field of the wrongful detention of chattels [that were] not found.” A plaintiff who brought an action for trover was able to claim that the defendant refused to deliver property upon the plaintiffs demand as “evidence of a conversion—evidence, that is to say, that the defendant has already made away with the property and therefore cannot and does not restore it.” Eventually, “[j]uries were directed as a matter of law to find a conversion on proof of demand and refusal without lawful justification.” Before the turn of the twentieth century, the meaning of conversion as originally understood at common law began to evolve. Justice COOLEY’s treatise on torts defined conversion as “[a]ny distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it. . . .” Importantly, Justice COOLEY quoted Georgia caselaw from 1846 for the proposition that “ ‘it is not necessary that it should be shown that he has applied [the converted property] to his own use.’ ” While “it is a conversion where one takes the plaintiffs property and sells or otherwise disposes of it, it is equally a conversion if he takes it for a temporary purpose only, if in disregard of the plaintiffs right[,] .. . though he return [the property] to the owner.” This Court’s conversion caselaw bears out this development in the common law. Justice COOLEY’s 1874 decision for this Court in Kreiter v Nichols involved the conversion of beer and emphasized that if someone “converts [beer] to his own use in any form, a civil action will lie to recover from him the value,” and “this civil action would not depend in any degree upon the method or purpose of the conversion.” In explaining that conversion of beer to the other person’s “own use” was broad in purpose, the Court observed that “the legal responsibility to pay for [the beer’s] value would be the same” whether the converter “destroyed [it] from a belief in its deleterious effects, or made way with [it] in carousals or private drinking. . . ,” By 1884, Justice COOLEY’s decision for this Court in Daggett v Davis recognized that under certain circumstances, there may be “a technical conversion. . . , though no use was made of the” property. Under those circumstances, a plaintiff is “entitled to recover only his actual damages,” not the full value of the property. From this development in the common law, the scope of a common-law conversion is now well-settled in Michigan law as “ ‘any distinct act of dominion wrong fully exerted over another’s personal property in denial of or inconsistent with his rights therein.’ ” More recently, Thoma v Tracy Motor Sales, Inc reaffirmed this definition of conversion and adopted the Restatement of Torts to illustrate examples of “the ways in which a conversion may be committed.” The excerpt adopted by the Court states: “A conversion may be committed by “(a) intentionally dispossessing another of a chattel, “(b) intentionally destroying or altering a chattel in the actor’s possession, “(c) using a chattel in the actor’s possession without authority so to use it, “(d) receiving a chattel pursuant to a sale, lease, pledge, gift or other transaction intending to acquire for himself or for another a proprietary interest in it, “(e) disposing of a chattel by sale, lease, pledge, gift or other transaction intending to transfer a proprietary interest in it, “(f) misdelivering a chattel, or “(g) refusing to surrender a chattel on demand.” - - These examples crystallize the common law’s development over the centuries to encompass many different ways in which property may be converted, beyond the original meaning of finding lost property and converting that property to the converter’s own use. In addition to the Restatement’s example, this Court has held that a sheriff or court officer who unlawfully seizes personal property is, in the absence of governmental immunity, liable for conversion, even if he or she does so in the execution of a court order. To summarize: While the tort of conversion originally required a separate showing that the converter made some use of the property that amounted to a total deprivation of that property to its owner, by the twentieth century common-law conversion more broadly encompassed any conduct inconsistent with the owner’s property rights. In this context, the Legislature enacted MCL 600.2919a, to which we now turn. B. STATUTORY CONVERSION For most of Michigan’s history, conversion was a tort for which the only redress was an action at common law. Indeed, when the Legislature first enacted what we now refer to as the statutory conversion remedy, in 1976, its terms did not provide a separate remedy against a converter. As originally enacted, MCL 600.2919a stated: A person damaged as a result of another person’s buying, receiving, or aiding in the concealment of any stolen, embezzled, or converted property when the person buying, receiving, or aiding in the concealment of any stolen, embezzled, or converted property knew that the property was stolen, embezzled, or converted may recover 3 times the amount of actual damages sustained, plus costs and reasonable attorney’s fees. This remedy shall be in addition to any other right or remedy the person may have at law or otherwise. - - In interpreting this now-defunct provision, the Court of Appeals has explained that, initially, MCL 600.2919a was not “designed to provide a remedy against the individual who has actually stolen, embezzled, or converted the property.” Rather, it proscribed conduct that “occur[s] after the property has been stolen, embezzled, or converted by the principal.. . .” In 2005, the Legislature amended MCL 600.2919a to its present language. In particular, Subsection (l)(a) created a remedy against a person who “steal[s] or embezzl[es] property or converts] property to the other person’s own use.” The interpretive issue before us is whether this language in Subsection (l)(a) allows a plaintiff to recover treble damages in all instances of common-law conversion or, instead, whether a plaintiff seeking damages for conversion under Subsection (l)(a) must allege additional conduct to show that the defendant converted the plaintiffs property “to the [defendant’s] own use.” The historical analysis of the common-law tort of conversion discussed earlier shows that Michigan law’s understanding of conversion shifted away from requiring an additional showing that the conversion occurred for the other person’s “own use” and toward allowing a property owner to recover for any act of dominion inconsistent with that person’s rights in that property. This shift in the common law occurred long before the Legislature’s 2005 amendments of MCL 600.2919a. As a result, the Legislature’s inclusion of the phrase “to the other person’s own use” in § 2919a(l)(a) indicates its intent to limit § 2919a(l)(a) to a subset of common-law conversions in which the common-law conversion was to the other person’s “own use.” The Court of Appeals did not specifically address whether an additional element is required to transform common-law conversion into conversion to the other person’s “own use” pursuant to MCL 600.2919a(l)(a). However, implicit in its analysis is that a plaintiff seeking treble damages pursuant to § 2919a(l)(a) must “presento evidence that the conversion was to defendant’s ‘own use’ as required by MCL 600.2919a(l)(a).” Similarly, Aroma’s counsel in opposition to the motion for directed verdict also presumed that common-law conversion “has a slightly different standard” than § 2919a(l)(a). We turn now to the scope of that difference —what conduct satisfies the additional statutory requirement that the conversion was to the other person’s “own use.” C. DEFINITION OF “OWN USE” The word “use” is one of the most common words in the English language and conveys different shades of meaning as either a noun (as in, “an object’s use”) or a verb (as in, “to use an object”). Within the phrase “converting property to the other person’s own use,” the word “use” is employed as a noun. Merriam-Webster’s Collegiate Dictionary identifies many different definitions and senses of the word “use” as a noun, including the following most relevant within the context of MCL 600.2919a(l)(a): 1 a : the act or practice of employing something : EMPLOYMENT, APPLICATION <he made good ~ of his spare time> b : the fact or state of being used <a dish in daily ~ > ... 2 a (1): habitual or customary usage (2): an individual habit or group eustom[.][ ] Columbian proffered, and the circuit court adopted, a narrow definition of “use” focused on the intended purpose of the converted property, such as the definition of the word as “habitual or customary usage” quoted above. Under this definition, to convert Aroma’s wine to Columbian’s “own use” means that “one would have to drink it or perhaps sell it.” In reversing the circuit court’s decision, the Court of Appeals held that “the definition of ‘use’ encompasses a much broader meaning” than the circuit court’s definition allows. Under the Court of Appeals’ preferred definition, “use” “requires only that a person ‘employ for some purpose . . . .’ ” As a result, converting to the other person’s “own use” means merely that a defendant “employ[s]” another person’s property for any purpose, as long as it is “to [the defendant’s] own purposes.” The Court of Appeals thus implicitly acknowledged the placement of the word “use” within MCL 600.2919a(l)(a). In particular, the word “own” modifies “use,” suggesting that any use of the converted property must be intentionally geared toward a purpose personal to the person converting the property. When examining the phrase “own use” in this light, it becomes clear that the Legislature did not seek to restrict the application of MCL 600.2919a(l)(a) on the basis of the intended or common purpose of the converted property. Rather, the only restriction to the application of MCL 600.2919a(l)(a) to a common-law conversion offense is that it must be used for a purpose personal to the converter. Therefore, we agree with the Court of Appeals’ definition of “use” and hold that conversion “to the other person’s own use” requires a showing that the defendant employed the converted property for some purpose personal to the defendant’s interests, even if that purpose is not the object’s ordinarily intended purpose. This broad definition of “own use” finds support in our early conversion caselaw. As explained earlier, in Kreiter, this Court held that conversion to someone’s own use need not be geared toward the intended purpose of the converted property and held that a converter of beer was liable regardless of whether he or she “destroyed [it] from a belief in its deleterious effects, or made way with [it] in carousals or private drinking.” Similarly, our precedent also illustrates that not every common-law conversion is to the converter’s “own use,” and therefore that additional language is not surplusage. For instance, this Court has also held that, leaving aside any potential governmental immunity defenses, a sheriff or court officer is liable for conversion if he or she unlawfully seizes personal property pursuant to a court order. While the sheriff has converted that property, the sheriff has not converted the property to his or her “own use” within the meaning of MCL 600.2919a(l)(a). Accordingly, we agree with the Court of Appeals that someone alleging conversion to the defendant’s “own use” under MCL 600.2919a(l)(a) must show that the defendant employed the converted property for some purpose personal to the defendant’s interests, even if that purpose is not the object’s ordinarily intended purpose. We now turn to the specific evidence presented in this case to determine whether Columbian is entitled to a directed verdict on Aroma’s statutory conversion claim. IV APPLICATION In determining whether the circuit court properly granted Columbian’s motion for a directed verdict on Aroma’s statutory conversion claim, we reiterate that we are not making any factual determinations, only whether sufficient evidence has been presented for the fact-finder—in this case, the jury—to conclude that Columbian converted Aroma’s wine to its “own use,” that is, for some purpose personal to Columbian. Under this standard, our application of MCL 600.2919a(l)(a) is straightforward. Whether Columbian committed a common-law conversion is not at issue here, for the jury has already decided that question against Columbian. In arguing that it did not commit statutory conversion, Columbian claims that it moved the wine from its temperature-controlled storage area to complete a renovation project at its warehouse. Even considering just this admission, we agree with the Court of Appeals that a jury could consider “the act of moving plaintiffs wine contrary to the contract in order to undertake an expansion project to benefit itself” to be “an act of employing the wine to [Columbian’s] own purposes constituting ‘use’ of the wine.” Moreover, Aroma proffered various e-mails between its owner and Columbian’s employees to support its claim that Columbian limited Aroma’s access to its wine during a period when Columbian declared Aroma’s account to be delinquent. Furthermore, the Court of Appeals also observed that Aroma proffered evidence that, if believed, would allow a jury to conclude that Columbian “filled the temperature-controlled storage space . .. with other customers’ products.” As a result, [i]f a jury believed the evidence showing that defendant moved plaintiffs wine for its own purposes—-whether it be to sell the space to other customers or complete a construction project—or that it used the wine as leverage against plaintiff, it could have determined that defendant converted the wine to its own use.[ ] Therefore, we affirm the Court of Appeals’ conclusion that the circuit court erred when it granted Columbian’s motion for a directed verdict on Aroma’s statutory conversion claim. Aroma presented evidence during its case-in-chief that would allow a jury to find that Columbian converted Aroma’s property to its own use within the meaning of MCL 600.2919a(l)(a). As a result, Columbian is not entitled to a directed verdict on Aroma’s statutory conversion claim. V CONCLUSION Although its language is rooted in common-law conversion, the tort established in MCL 600.2919a(l)(a) is not the same as common-law conversion. Rather, the separate statutory cause of action for conversion “to the other person’s own use” requires a showing that the defendant employed the converted property for some purpose personal to the defendant’s interests, even if that purpose is not the object’s ordinarily intended purpose. Aroma has alleged facts that, if believed by a jury, would indicate Columbian’s conversion of Aroma’s wine for its own purposes. Therefore, we affirm the Court of Appeals’ conclusion that Columbian is not entitled to a directed verdict on Aroma’s statutory conversion claim and remand this case to the Kent Circuit Court for further proceedings consistent with this opinion. YOUNG, C.J., and MARKMAN, ZAHRA, MCCORMACK, Viviano, and Bernstein, JJ., concurred with Kelly, J. MCL 600.2919a(2). See Dep’t of Agriculture v Appletree Mktg, LLC, 485 Mich 1, 10; 779 NW2d 237 (2010). The parties signed a second agreement in February 2008, and this agreement governs the dispute arising here. For the purposes of our review, the exact timing of Columbian’s removal of the wine is irrelevant. Aroma Wines & Equip, Inc v Columbian Distrib Servs, Inc, 303 Mich App 441-448; 844 NW2d 727 (2013). Id. at 447-448, quoting Random House Webster’s College Dictionary (1992) (alteration in original). Aroma Wines, 303 Mich App at 448. Id. at 448-449. Id. at 449. The Court of Appeals also held that it “cannot simply order treble damages upon a finding of [statutory] conversion” and that if on remand the jury were to find that Columbian committed statutory conversion, the jury must also determine whether to award treble damages. Id. at 449-450. Aroma Wines & Equip, Inc v Columbian Distrib Servs, Inc, 497 Mich 864 (2014). Aroma’s application for leave to appeal in Docket No. 148907 also asserted an issue outside this Court’s limited order granting leave: that the Court of Appeals erred by concluding that treble damages were discretionary upon a finding of statutory conversion. We deny the application for leave to appeal with respect to this issue because we are not persuaded that the question presented should be reviewed by this Court. Our order granting leave to appeal also indicated that an application for leave to appeal as cross-appellant by Aroma in Docket No. 148909 remained pending. Because this application as cross-appellant raised the same issues presented in Aroma’s application for leave to appeal in Docket No. 148907, the application for leave to appeal as cross-appellant in Docket No. 148909 is denied as moot. Krohn v Home-Owners Ins Co, 490 Mich 145, 155; 802 NW2d 281 (2011). Id., citing Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich 124, 131; 666 NW2d 186 (2003). Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013). Id., citing Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). Whitman, 493 Mich at 311, citing Sun Valley Foods, 460 Mich at 236. Whitman, 493 Mich at 311-312, citing Baker v Gen Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980). Thoma v Tracy Motor Sales, Inc, 360 Mich 434, 438; 104 NW2d 360 (1960), quoting Nelson & Witt v Texas Co, 256 Mich 65, 70; 239 NW 289 (1931). While the parties and this Court refer to a claim pursued under MCL 600.2919a as a “statutory conversion” claim, the plain language of MCL 600.2919a(l)(a) makes clear that a claim also accrues to the victim of “[a]nother person’s stealing or embezzling” property. Moreover, MCL 8.31 provides that “[t]he word ‘person’ may extend and be applied to bodies politic and corporate, as well as to individuals.” As a result, whether one or both of the parties involved in an action pursuant to MCL 600.2919a are corporations does not alter the foregoing analysis. In disputing the meaning of “conversion... to [Columbian’s] own use,” the parties essentially concede that no “stealing” or “embezzling” occurred within the meaning of MCL 600.2919a(l)(a) and that MCL 600.2919a(l)(b) is not at issue in this case. Indeed, under any reading of the statute, MCL 600.2919a applies to all “stealing” and “embezzling.” Furthermore, we note that “possessing... converted property” with the knowledge “that the property .. . was converted” also exposes a person to liability under MCL 600.2919a(l)(b). But because Aroma has not alleged Columbian’s potential violation of MCL 600.2919a(l)(b), we leave for another day the interpretation of that provision. MCL 8.3a. In re Bradley Estate, 494 Mich 367, 377; 835 NW2d 545 (2013), citing Stone v Williamson, 482 Mich 144, 170; 753 NW2d 106 (2008) (opinion by Cavanagh, J.). See Appletree, 485 Mich at 9 (referring to MCL 600.2919a as “the statutory conversion provision”). 3 Blackstone, Commentaries on the Law of England, p *145. Prosser, Nature of Conversion, 42 Cornell L Rev 168, 169 (1957). See also Salmond, Observations on Trover and Conversion, 21 Law Q Rev 43, 44 (1905). Salmond, 21 Law Q Rev at 44. Prosser, 42 Cornell L Rev at 169. Id. 3 Blackstone, p *152 (emphasis omitted). Salmond, 21 Law Q Rev at 44. Trover initially arose out of an allegation that the plaintiff “was possessed of certain goods, that he casually lost them, that the defendant found them, and that the defendant ‘converted them to his own use.’ ” Prosser, 42 Cornell L Rev at 169. Salmond, 21 Law Q Rev at 47. Prosser, 42 Cornell L Rev at 169. Salmond, 21 Law Q Rev at 47 (emphasis omitted). See also 3 Blackstone, p *152 (“[A]ny man may take the goods of another into possession, if he finds them; but no finder is allowed to acquire a property therein ... and therefore he must not convert them to his own use, which the law presumes him to do, if he refuses to restore them to the other: for which reason such refusal alone is, prima facie, sufficient evidence of a conversion.”). Salmond, 21 Law Q Rev at 47. Cooley, Torts (2d ed), p *448. Id,., quoting Liptrot v Holmes, 1 Ga 381, 391 (1846). Cooley, pp *448-449. Kreiter v Nichols, 28 Mich 496, 498 (1874). Note that, to the extent Kreiter held that “the brewing of beer is a lawful business,” id,., the decision was abrogated by US Const, Am XVIII, and subsequently unabrogated by US Const, Am XXI. See generally Kyvig, Repealing National Prohibition (Kent, Ohio: Kent State Univ Press, 2d ed 2000). Kreiter, 28 Mich at 498-499. Daggett v Davis, 53 Mich 35, 38; 18 NW 548 (1884). Id. at 39. Nelson & Witt, 256 Mich at 70, quoting Aylesbury Mercantile Co v Fitch, 22 Okla 475; 99 p 1089 (1908) (Syllabus). Thoma, 360 Mich at 438, citing Nelson & Witt, 256 Mich at 70. Thoma, 360 Mich at 438, quoting 1 Restatement, Torts, § 223. Kenney v Ranney, 96 Mich 617, 618; 55 NW 982 (1893) (“We understand it to be the settled law that when one, by a trespass, takes the property of another, and sells it, he is liable for the conversion, and that no demand is necessary, and the question of good or bad faith is not necessarily involved. This doctrine is applied daily in cases against sheriffs and constables, where property is unlawfully seized and sold upon execution.”). Former MCL 600.2919a as added by 1976 PA 200. Marshall Lasser, PC v George, 252 Mich App 104, 112; 651 NW2d 158 (2002). Id. 2005 PA 44 took immediate effect on June 16, 2005. See Appletree, 485 Mich at 9 n 16 (“Before its amendment, MCL 600.2919a applied only to third parties who aided another’s act of conversion or embezzlement, and did not apply to the person who directly converted or embezzled, as it does now.”). Aroma claims that the House legislative analysis shows that the Legislature intended to extend liability under MCL 600.2919a to all converters simply because it identified “the apparent problem” of the former MCL 600.2919a as failing to allow “a victim [to] sue the person who actually commits the theft,” embezzlement, or conversion. House Legislative Analysis, HB 4356 (March 16, 2005). As a matter of logic, this assertion is faulty because MCL 600.2919a, as initially enacted, did not apply to every instance of theft, embezzlement, or conversion, and only provided a cause of action against a third party who had knowledge of the status of stolen, embezzled, or converted property. See former MCL 600.2919a. As a result, the Legislature had a range of options open to it when it decided to enact policy that expanded § 2919a to encompass additional conduct, and it chose one of those options by requiring a victim of conversion to show that the conversion was to the other person’s “own use.” Moreover, as a matter of statutory interpretation, Aroma’s reading of the statute in light of the House legislative analysis is faulty on two levels. First, the language of the amended MCL 600.2919a is unambiguous and, as a result, the examination of legislative history “of any form” is not proper. In re Certified Question from, the United States Court of Appeals for the Sixth Circuit, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003). Second, even if legislative history were relevant to the interpretation of MCL 600.2919a, legislative analyses are entitled to little judicial consideration in resolving ambiguous statutory provisions because: (1) such analyses are not an official form of legislative record in Michigan, (2) such analyses do not purport to represent the views of legislators, individually or collectively, but merely to set forth the views of professional staff offices situated within the legislative branch, and (3) such analyses are produced outside the boundaries of the legislative process as defined in the Michigan Constitution, and which is a prerequisite for the enactment of a law. [Id., citing Const 1963, art 4, §§ 26 and 33.] Aroma Wines, 303 Mich App at 447. Although the Court of Appeals’ opinion in this case is the first published decision to interpret the amended version of MCL 600.2919a, Aroma claims that several unpublished decisions of the Court of Appeals support its assertion that common-law conversion and conversion to the other person’s “own use” are synonymous. We address these cases for the sake of completeness and to observe that none of these cases withstands scrutiny even as merely persuasive authority. See MCR 7.215(C)(1) (“An unpublished opinion is not precedentially binding under the rule of stare decisis.”). Three of Aroma’s cited cases concluded that no common-law conversion occurred, so they can only stand for the uncontroversial principle that common-law conversion is a threshold to conversion to the other person’s own use. See Victory Estates LLC v NPB Mortgage LLC, unpublished opinion per curiam of the Court of Appeals, issued November 20, 2012 (Docket No. 307457); Paul v Paul, unpublished opinion per curiam of the Court of Appeals, issued December 17, 2013 (Docket No. 311609); Armstrong v O’Hare, unpublished opinion per curiam of the Court of Appeals, issued April 22,2014 (Docket No. 308635). A fourth case, JP Morgan Chase Bank v Jackson GR, Inc, unpublished opinion per curiam of the Court of Appeals, issued July 15, 2014 (Docket No. 311650), simply held that treble damages are unavailable when no damages occurred in the first place or would not have even been contested. Other cases did not discuss the “own use” language of § 2919a(l)(a), presumably because the issue was not raised. See J Franklin Interests, LLC v Meng, unpublished opinion per curiam of the Court of Appeals, issued September 29, 2011 (Docket No. 296525); Stockbridge Capital, LLC v Watcke, unpublished opinion per curiam of the Court of Appeals, issued March 4, 2014 (Docket No. 313241). Finally, Aroma cites J & W Transp, LLC v Frazier, unpublished opinion per curiam of the Court of Appeals, issued June 1,2010 (Docket No. 289711), which bears examining in slightly more detail. There, the panel suggested a two-step process for determining whether a plaintiff could properly assert a statutory conversion claim because it observed that “defendants failed to return plaintiffs’ property after demand had been made and used property in their possession without the authority to do so.” Id. at 15 (emphasis added). As a result, this decision, far from supporting Aroma’s theory of § 2919a, actually undercuts it. Nevertheless, none of the unpublished Court of Appeals opinions cited for Aroma’s theory provides this Court with any meaningful analysis of § 2919a, because the issue has not been squarely presented to any appellate court until this case. We further emphasize that the Legislature intended MCL 600.2919a to work alongside the common law by creating a nonexclusive statutory cause of action in addition to other remedies available, including that for common-law conversion. See MCL 600.2919a(2); Appletree, 485 Mich at 10. A study by Dictionaries of the Oxford English Corpus found that the word “use” is the 83d most frequently used word in the English language. See Oxford Dictionaries, The OEC: Facts about the language, available at <http://www.oxforddictionaries.com/words/ the-oec-facts-about-the-language> (accessed June 12, 2015) [http://perma.cc/BDP4-2UB5]. Merriam-Webster’s Collegiate Dictionary (2014). Aroma Wines, 303 Mich App at 448. Id. Id. Kreiter, 28 Mich at 498-499. Kenney, 96 Mich at 618. Krohn, 490 Mich at 155, citing Sniecinski, 469 Mich at 131. Aroma Wines, 303 Mich App at 448-449. Id. at 448. Id. at 449.
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Per Curiam. In this case, we are called upon to interpret the definition of “employee” as found in MCL 418.161(l)(n), prior to being amended in 2011, which is a provision in the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq. By a special panel convened to hear this case under MCR 7.215(J), the Court of Appeals rejected that Court’s previous interpretation of this definition in Amerisure Ins Cos v Time Auto Transp, Inc. Because we believe the term “employee” as defined in the WDCA was properly interpreted in Amerisure, we reverse the Court of Appeals. While working on a fall clean-up job for defendant All Star Specialists Plus, Inc., defendant Joseph Derry was loading leaves into a truck using a leaf vacuum machine when the machine tipped over, injuring him. At the time, All Star had three insurance policies issued by Auto-Owners Insurance Company: (1) a commercial general liability policy, (2) a commercial automobile insurance (no-fault) policy, and (3) a commercial workers’ compensation policy. The general liability policy excludes from coverage “[a]ny obligation of the insured under a workers[’] compensation. . . law,” and the no-fault policy excludes coverage for “any expenses that would be payable under any workers[’] compensation law... .” Derry brought a negligence suit against All Star and one of its owners, Jeffery Harrison, for his injuries and sued Auto-Owners for no-fault benefits. Plaintiff Auto-Owners later filed the present declaratory judgment action, seeking a determination that Derry was an employee of All Star and, thus, that the only insurance coverage available was under the workers’ compensation policy. Plaintiff Auto-Owners moved for summary disposition pursuant to MCR 2.116(0(10). Derry contended that because he was an independent contractor, the general liability policy and no-fault policy applied to his negligence and no-fault claims, respectively. The trial court concluded that because it was uncontroverted that Derry held himself out to the public to perform the same services as the work he performed for All Star, Derry was an independent contractor at the time of his injury and not an employee, and that Derry was therefore entitled to coverage under Auto-Owners’ general liability and no-fault policies. The court denied Auto-Owners’ motion for summary disposition and granted summary disposition in favor of Derry. Auto-Owners appealed in the Court of Appeals, and the panel affirmed in part and reversed in part in a published opinion. The panel affirmed the trial court’s conclusion that Derry was an independent contractor for purposes of the WDCA. However, the panel only reached this conclusion because it was bound under MCR 7.215(J)(1) to follow the Court of Appeals’ prior decision in Amerisure, which held that each criterion of MCL 418.161(l)(n) must be satisfied for an individual to be an employee, and otherwise would have held that Derry was an employee. The panel called for a special panel to resolve the conflict. A special panel was convened, and in a published 4-3 decision, the majority reversed the trial court’s order granting summary disposition in favor of Derry and, thus, its determination that Derry was an independent contractor. The special panel majority overruled Amerisure and held “that all three of the statutory criteria in MCL 418.161(l)(n) must be met before an individual is divested of ‘employee’ status.” The majority concluded that because Derry only met two of the three criteria, Derry remained an employee at the time of his injury. The majority concluded that only the workers’ compensation policy provided coverage and that the trial court had erred by entering summary disposition in favor of Derry. Derry sought leave to appeal in this Court, specifically seeking reversal of the special panel majority’s ruling that he was an employee under MCL 418.161(l)(n). The workers’ compensation policy at issue provides insurance for certain bodily injuries when benefits are required by the WDCA. The issue before this Court is the proper interpretation of the definition of “employee” in § 161 of the WDCA, specifically subsection (l)(n), prior to being amended in 2011. That subsection provided: (1) As used in this act, “employee” means: (n) Every person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury, if the person in relation to this service does not maintain a separate business, does not hold himself or herself out to and render service to the public, and is not an employer subject to this act. [Emphasis added.] The Court of Appeals correctly interpreted this provision in its decision in Amerisure, stating, “By so employing the word ‘not,’ the Legislature intended that once one of these three provisions occurs, the individual is not an employee. Thus, each provision must be satisfied for an individual to be an employee.” Therefore, the three criteria that must be met for a person “performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury” to be considered an employee are that a person, “in relation to this service”: (1) does not maintain a separate business, (2) does not hold himself or herself out to and render service to the public, and (3) is not an employer subject to this act. As a result, if a person, in relation to the service in question, maintains a separate business or holds himself or herself out to and renders service to the public or is an employer subject to this act (i.e., if the person fails to satisfy any one of the three criteria), then that person is excluded from employee status. By requiring that all three statutory criteria be met for an employee to be divested of employee status, the special panel majority’s interpretation ignored the word “not” contained in each criterion. This interpretation contravenes the principle of statutory interpretation 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.” We instead agree with dissenting Judge BORRELLO, who correctly concluded that Amerisure was properly de cided. Contrary to the majority’s assertions, the Amerisure interpretation does not ignore the word “and” in MCL 418.161(l)(n); it takes into consideration both the word “and” connecting the three criteria and the word “not” within each criterion. Each criterion of MCL 418.161(l)(n) must be satisfied for an individual to be considered an employee; conversely, failure to satisfy any one of the three criteria will exclude an individual from employee status. When overruling Amerisure, the special panel majority expressly adopted the reasoning of the prior panel, which relied in part on a paraphrase of MCL 418.161(l)(n) in Chief Justice TAYLOR’s lead opinion in Reed v Yackell. , However, to the extent that the special panel relied on this paraphrase by adopting the reasoning of the original panel, their reliance was misplaced. Chief Justice TAYLOR attempted to paraphrase the cumbersome language of MCL 418.161(l)(n) as follows: [MCL 418.161(l)(n)] provides that every person performing a service in the course of an employer’s trade, business, profession, or occupation is an employee of that employer. However, the statute continues by excluding from this group any such person who: (1) maintains his or her own business in relation to the service he or she provides the employer, (2) holds himself or herself out to the public to render the same service that he or she performed for the employer, and (3) is himself or herself an employer subject to the WDCA. [Reed, 473 Mich at 535 (opinion by Taylor, C.J.).] Chief Justice TAYLOR thus sought to replace the confusing negative definition of an employee created by MCL 418.161(l)(n) with a positive definition of people who are excluded from the statutory class of employees by operation of the statute. This statement may not, however, be interpreted as an indication that this Court believed all three criteria of MCL 418.161(l)(n) must be met for a person to be excluded from employee status. As an initial consideration, Reed was a plurality opinion and does not constitute binding precedent of this Court. Therefore, even if Chief Justice TAYLOR’s paraphrase indicated that he had favored the special panel majority’s interpretation of MCL 418.161(l)(n), the statement could not be taken as guidance from this Court because the lead opinion only represented the views of three justices. Chief Justice TAYLOR’s paraphrase in Reed was also dictum and, again, is not binding precedent. The differences between the statutory language and the paraphrase had no impact on the decision in Reed because the question before this Court was the meaning of the statutory phrase “this service.” Reed never addressed whether a person is excluded from employee status if he or she fails to meet only one criterion in MCL 418.161(l)(n). Lastly, to the extent that the plurality in Reed did contemplate this question, it demonstrated no intention of changing Amerisure’s settled interpretation. To the contrary, it was undisputed throughout Reed that the plaintiff was not an employer under the WDCA. Under the interpretation of MCL 418.161(l)(n) adopted by the original panel and special panel majority in this matter, this in itself would have been sufficient to conclude that the plaintiff retained his status as an “employee.” This Court in Reed, however, found it necessary to explore whether the other two statutory criteria were also satisfied before making this determination, as Amerisure requires. Reed was thus considered and decided in a manner fully consistent with Amerisure’s interpretation of MCL 418.161(l)(n), and it is readily apparent that the plurality did not intend to disrupt that interpretation. Because the special panel majority of the Court of Appeals incorrectly interpreted MCL 418.161(l)(n), we reverse that decision and remand this matter to the Macomb Circuit Court for further proceedings consistent with this opinion and the Court of Appeals’ July 9, 2013 opinion. Young, C.J., and Markman, Kelly, Zahra, McCormack, and VIVIANO, JJ., concurred. CAVANAGH, J. I would have granted leave to appeal. Amerisure Ins Cos v Time Auto Transp, Inc, 196 Mich App 569; 493 NW2d 482 (1992). Auto-Owners Ins Co v All Star Lawn Specialists Plus, Inc, 301 Mich App 515; 838 NW2d 166 (2013). Auto-Owners Ins Co v All Star Lawn Specialists Plus, Inc, 301 Mich App 801 (2013). Auto-Owners Ins Co v All Star Lawn Specialists Plus, Inc, 303 Mich App 288; 845 NW2d 744 (2013). Id. at 301 (emphasis added). . Id. . Id. As this Court summarized in Hoste v Shanty Creek Mgt, Inc, 459 Mich 561, 570; 592 NW2d 360 (1999): Michigan’s Worker’s Disability Compensation Act requires that employers provide compensation to employees for injuries suffered in the course of the employee’s employment, regardless of who is at fault. MCL 418.301.... In return for this almost automatic liability, employees are limited in the amount of compensation they may collect, and, except in limited circumstances, may not bring a tort action against the employer. See MCL 418.131.... The statute also defines who is an “employee” in § 161, and by doing so determines which individuals have essentially traded the right to bring a tort action for the right to benefits. Subsection (l)(n) must also be read along with subsection (1)©, but the interpretation of that subsection’s language is not at issue. See id. at 573 (holding that “once an association with a private employer is found under § 161(l)(b) [a prior version of § 161(1)©], the characteristics of that association must meet the criteria found in § 161(l)(d) [a prior version of § 161(l)(n)]”). Amerisure Ins Cos, 196 Mich App at 574. People v Couzens, 480 Mich 240, 249; 747 NW2d 849 (2008). Auto-Owners Ins Co, 303 Mich App at 291, 296-299. Reed v Yackell, 473 Mich 520; 703 NW2d 1 (2005). Frankenmuth Mut Ins Co v Masters, 460 Mich 105, 115 n 7; 595 NW2d 832 (1999) (explaining that “plurality opinions are not binding precedent because they did not garner a majority of the Court”). People v Peltola, 489 Mich 174, 190 n 32; 803 NW2d 140 (2011) (“Obiter dicta are not binding precedent. Instead, they are statements that are unnecessary to determine the case at hand and, thus, lack the force of an adjudication.”) (quotation marks and citation omitted). Reed, 473 Mich at 535-538. See Reed, 473 Mich at 536 (the plaintiff argued that he was an independent contractor only because “he maintained a separate business and held himself out to the public as a day laborer”); see also Reed v Yackell, 469 Mich 960 (2003) (remanding to the trial court to make factual findings only with regard to these arguments, but not regarding whether the plaintiff was an employer under the WDCA).
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate Sections II., III., IV.D., and the first paragraph of Section VI. of the Court of Appeals judgment and we remand this case to the Court of Appeals for reconsideration in light of this Court’s opinion in Elher v Misra, 499 Mich 11 (2016). We do not retain jurisdiction.
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Leave to appeal denied 498 Mich 966.
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By order of April 28, 2015, the application for leave to appeal the January 25, 2013 order of the Court of Appeals was held in abeyance pending the decision in Montgomery v Louisiana, cert gtd 575 US _; 135 S Ct 1546; 191 L Ed 2d 635 (2015). On order of the Court, the case having been decided on January 25, 2016, 577 US _; 136 S Ct 718; 193 L Ed 2d 599 (2016), the application is again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the sentence of the Kent Circuit Court on the defendant’s first-degree murder conviction, and we remand this case to the trial court for resentencing on that conviction pursuant to MCL 769.25 and MCL 769.25a. See Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012); Montgomery v Louisiana, supra. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court. We do not retain jurisdiction.
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The parties shall file supplemental briefs within 35 days of the date of this order addressing: (1) whether the respondent-mother made a timely request for accommodation of her disability in the service plan prepared by the Department of Health and Human Services; (2) whether the Department of Health and Human Services made “reasonable efforts to reunify the child and family,” as required by MCL 712A.19a(2), given the respondent-mother’s disability; and (3) whether the failure to provide a service plan that accommodates a respondent’s disability may be grounds for reversal of a termination of parental rights on appeal, under either the Americans with Disabilities Act or under the Probate Code, MCL 712A.19a(2), where there is no determination that the trial court erred in finding grounds for termination under MCL 712A. 19b(3) or that termination was in the best interests of the children under MCL 712A.19b(5). The parties should not submit mere restatements of their application papers.
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reported below: 309 Mich App 1.
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reported below: 313 Mich App 1. On order of the Court, the applications for leave to appeal the October 22, 2015 judgment of the Court of Appeals in People v Steanhouse (Docket No. 152671 and Docket No. 152849) and the applications for leave to appeal the November 24, 2015 judgment of the Court of Appeals in People v Masroor (Docket Nos. 152871-3 and Docket Nos. 152946-8) are considered. Leave to appeal is granted in Steanhouse in Docket No. 152849 and in Masroor in Docket Nos. 152946-8, and the cases shall be argued and submitted to the Court together at such future session of the Court as both cases are ready for submission. The parties in each case shall address: (1) whether MCL 769.34(2) and (3) remain in full force and effect where the defendant’s guidelines range is not dependent on judicial fact-finding, see MCL 8.5; (2) whether the prosecutor’s application asks this Court in effect to overrule the remedy in People v Lockridge, 498 Mich 358, 391 (2015), and, if so, how stare decisis should affect this Court’s analysis; (3) whether it is proper to remand a case to the circuit court for consideration under Part VI of this Court’s opinion in People v Loekridge where the trial court exceeded the defendant’s guidelines range; and (4) what standard applies to appellate review of sentences following the decision in People v Lockridge. The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae addressing the four issues set forth above. Other persons or groups interested in the determination of the issues presented in these cases may move the Court for permission to file briefs amicus curiae. Motions for permission to file briefs amicus curiae and briefs amicus curiae regarding these two cases should be filed in Steanhouse Docket No. 152849 only and served on the parties in both cases. The total time allowed for oral argument by the parties shall be 60 minutes, with 15 minutes for each party. MCR 7.314(B). Following the arguments by the parties, we invite the Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan to participate in oral argument to address the first and fourth issues set forth above. Each shall be permitted 10 minutes of argument. The other applications for leave to appeal (Steanhouse Docket No. 152671 and Masroor Docket Nos. 152871-3) remain pending.
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The parties shall file supplemental briefs within 42 days of the date of this order addressing the following issues: (1) whether the defendant was accurately advised of the direct consequences of his guilty plea, including lifetime electronic monitoring; (2) whether the defendant has demonstrated actual prejudice pursuant to MCR 6.508(D)(3)(b); and in particular, (3) whether the defendant must demonstrate that he would not have pleaded guilty if he had known about the lifetime electronic monitoring requirement. See, e.g., United States v Timmreck, 441 US 780, 783-784; 99 S Ct 2085; 60 L Ed 2d 634 (1979) (holding that a conviction based on a guilty plea is not subject to collateral attack when all that can be shown is a formal violation of Rule 11); Williams v Smith, 591 F2d 169 (CA 2, 1979) (recognizing that the test applied by the Second Circuit for determining the constitutional validity of a state court guilty plea that was based on inaccurate sentencing information is whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a plea). The parties should not submit mere restatements of their application papers.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the order of the Court of Appeals and we remand this case to the Court of Appeals for further consideration. On remand, we direct the Court of Appeals to issue an opinion specifically addressing the issue whether the order in question may affect custody of a minor within the meaning of MCR 7.202(6)(a)(iii), or otherwise be appealable by right under MCR 7.203(A). If the Court of Appeals determines that the Lenawee Circuit Court Family Division’s order is appealable by right, it shall take jurisdiction over the plaintiff-appellant’s claim of appeal and address its merits. If the Court of Appeals determines that the Lenawee Circuit Court Family Division’s order is not appealable by right, it may then dismiss the plaintiff-appellant’s claim of appeal for lack of jurisdiction, or exercise its discretion to treat the claim of appeal as an application for leave to appeal and grant the application. See Varran v Granneman (On Remand), 312 Mich App 591 (2015), and Wardell v Hincka, 297 Mich App 127, 133 n 1 (2012). We do not retain jurisdiction.
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Leave to appeal denied at 499 Mich 868.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals, and we remand this case to the St. Clair Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court. We do not retain jurisdiction.
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By order of April 28, 2015, the application for leave to appeal the June 27, 2014 order of the Court of Appeals was held in abeyance pending the decision in Montgomery v Louisiana, cert gtd 575 US _; 135 S Ct 1546; 191 L Ed 2d 635 (2015). On order of the Court, the case having been decided on January 25, 2016, 577 US _; 136 S Ct 718; 193 L Ed 2d 599 (2016), the application is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the sentence of the Shiawassee Circuit Court on the defendant’s first-degree murder conviction, and we remand this case to the trial court for resentencing pursuant to MCL 769.25 and MCL 769.25a. See Montgomery, supra, and Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012). We do not retain jurisdiction.
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Leave to appeal denied at 498 Mich 928.
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Leave to appeal denied at 498 Mich 883.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand these cases to the Allegan Circuit Court to determine whether the court would have imposed materially different sentences under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. The trial court shall also consider the defendant’s argument concerning the imposition of costs, and determine whether costs should be imposed and the amount, if any, that should be assessed. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. The motion for bond pending appeal is denied. We do not retain jurisdiction.
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Leave to appeal denied at 498 Mich 907.
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The parties shall file supplemental briefs within 42 days of the date of this order addressing: (1) whether an insured making a claim for underinsured motorist benefits may be considered to be a “third party tort claimant” under MCL 500.2006(4), thereby requiring the insurer to pay twelve percent interest for failing to pay the claim on a timely basis only if the claim “is not reasonably in dispute”; and (2) whether the Court of Appeals decision in this case is consistent with Yaldo v North Pointe Ins Co, 457 Mich 341 (1998), and Griswold Props, LLC v Lexington Ins Co, 276 Mich App 551 (2007). The parties should not submit mere restatements of their application papers. Persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the sentence of the Wayne Circuit Court on the defendant’s first-degree murder conviction and remand this case to the trial court for resentencing on that conviction pursuant to MCL 769.25 and MCL 769.25a. See Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012); Montgomery v Louisiana, 577 US _; 136 S Ct 718; 193 L Ed 2d 599 (2016). We do not retain jurisdiction.
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reported below: 311 Mich App 257.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate that part of the Court of Appeals opinion considering whether the defendants were precluded, under principles of collateral estoppel, from arguing that the 1999 amendment to the Civil Rights Act, MCL 37.2301(b), is constitutional and whether the 1999 amendment to the Civil Rights Act violates equal protection. In light of the Court of Appeals ruling that plaintiffs’ complaint should be dismissed under the Prisoner Litigation Reform Act, MCL 600.5501 et seq., it was unnecessary to resolve the remaining issues. In all other respects, the applications for leave to appeal are denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court.
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On January 13, 2016, the Court heard oral argument on the application for leave to appeal the September 25, 2014 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal, we affirm on alternate grounds the result reached by the Court of Appeals in affirming the Michigan Public Service Commission’s (MPSC) determination that the appellant was not allowed to recover the cost of purchasing NOx allowances. The exception to the $1 million recovery limit provided in MCL 460.6a(8) applies to “costs that are incurred due to changes in federal or state environmental laws or regulations that are implemented” after the effective date of the statute, which was October 6, 2008. Here, the MPSC correctly concluded that no change in state law took place after October 6, 2008, because no statute was enacted and no rule was promulgated after that date. Because there had been no change in the law, the exception to the recovery limit was simply inapplicable. We therefore vacate that part of the Court of Appeals judgment in Docket No. 305066 regarding the meaning of the term “implemented.” Given that there was no change in the law, there was no need for the panel to resolve that issue. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court.
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The parties shall file supplemental briefs within 42 days of the date of this order addressing whether MCL 600.2922(3)(b) allows stepchildren of a decedent to make a claim for damages where the natural parent predeceased the decedent, and if so, whether this Court should overrule In re Combs Estate, 257 Mich App 622 (2003). The parties should not submit mere restatements of their application papers.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the sentence of the Wayne Circuit Court on the defendant’s first-degree murder conviction, and we remand this case to the trial court for resentencing on that conviction pursuant to MCL 769.25 and MCL 769.25a. See Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012); and Montgomery v Louisiana, 577 US _; 136 S Ct 718; 193 L Ed 2d 599 (2016). We do not retain jurisdiction.
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Leave to appeal denied at 499 Mich 917.
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Superintending control denied at 499 Mich 885.
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Smolensk, J. This case involves the question whether the legal relationship between the Ann Arbor ymca and those to whom the ymca rents rooms in its facility is one of landlord-tenant or one of hotel-guest. The trial court held that the relationship is one of landlord-tenant and that the statutes that apply to landlords are applicable to the ymca. We hold that the legal relationship between the ymca and its occupants is one of “hotel” and “guest” under Michigan law governing hotels, inns, and public lodging houses and that the trial court clearly erred in determining that a landlord-tenant relationship exists. We further hold that the statutes that apply to landlords are inapplicable to the ymca. i The Ann Arbor YMCA is a nonprofit, community-based membership organization that was founded in 1894, is affiliated with the national YMCA, and serves Washtenaw County. The Ann Arbor YMCA has four principal operations — fitness and recreation, child care and preschool, camping, and residence — all of which share the same building. The building has “common areas” on the first floor, including the front desk and main lobby, a lounge, a room that includes an eating area and vending machines, and public restrooms. Consistent with its stated “mission” to provide affordable living accommodations, the Ann Arbor ymca for many years has had a residence section consisting of single-occupancy rooms for persons of low and moderate incomes. Many of the individuals who occupy the rooms suffer from various mental, emotional, or physical disorders and problems and are referred from human service agencies in the community. These agencies often pay for or guarantee payment for a room at the ymca and provide various services for the individuals they refer. The ymca also provides various kinds of assistance to the individuals, including counseling, finding employment, and obtaining additional resources from community organizations. Each floor in the ymca’s residence section is similar to a dormitory, with communal bathroom facilities at one end of the hall containing several showers, sinks, urinals, and toilets to be used by the occupants of the floor. Each room is occupied by one person and is furnished by the YMCA with a single bed, a closet, a desk, and a chair. The YMCA provides each resident with linen services (sheets and towels), mandatory daily or weekly housekeeping service, and utilities. None of the rooms have bathroom facilities or facilities for maintaining food or preparing meals. The storage of personal belongings or food in the rooms and the use of alcohol or illegal drugs is specifically prohibited. The rooms have no telephones. A house telephone is provided on each floor for incoming calls, and a pay phone is provided on each floor for outgoing calls. The YMCA provides a wake-up service by means of a buzzer in the rooms. Each resident is given a key to his room but is required to leave the room key at the front desk when leaving the building. The YMCA retains keys to each room and specifically reserves the right to enter the rooms for purposes of security, inspection, and maintenance. One floor of the residence section is reserved exclusively for w omen and the other floors are reserved exclusively for men. Visitation on a guest floor by a nonguest is prohibited as is visitation on an opposite-sex floor by a guest. Residents are permitted to see visitors in a lounge area on the first floor during scheduled hours. Each person who desires to rent a room at the YMCA does so by registering for a room at the front desk of the YMCA. Although the guest policy requires a security deposit for guests who pay by the month, apparently as a matter of practice no security deposits are collected. On admission, the individual signs a written agreement with the ymca. The written agreement refers to each person who desires to rent a room as the “guest” and specifically states that the ymca is a “hotel” as defined in MCL 427.1 et seq.-, MSA 18.321 et seq. The agreement and its accompanying “guest policy” state that the guest’s right to occupy a room shall always be on a day-to-day basis, but that reduced weekly or monthly rates may be obtained. Payment is required in advance; however, the YMCA issues to a guest a pro-rata refund for any period for which payment has been made in advance but was not used because the guest vacated the room. In the agreement each guest also acknowledges that “he or she is not a tenant but a licensee on a day-to-day basis, and that Guest has no property or possessory interest in the room being rented to Guest.” The agreement and policy further provide that the ymca has the right to terminate a guest’s occupancy and ask the guest to leave at any time and without any reason and that if the guest does not do so voluntarily within twenty-four hours upon request, the YMCA may lock the guest out of the room without further notice. In 1988, the city of Ann Arbor determined that additional low-income, single-room-occupancy housing was needed in the community. Accordingly, the city of Ann Arbor and the ymca entered into an agreement whereby the ymca agreed to add sixty-three additional single-occupancy rooms and to refurbish the existing thirty-seven rooms (for a total of one hundred rooms) and the city agreed to guaranty a construction loan to the YMCA for the project. The sixty-three rooms would be added by constructing three new floors on top of the ymca’s existing residential wing. The city and the YMCA agreed that the YMCA would operate the project in accordance with the ymca’s then-existing guidelines for its thirty-seven rooms, “as a single room occupancy residence for persons whose income is insufficient to allow them otherwise to afford safe and sanitary housing within the City of Ann Arbor.” The project was completed in early 1991, but by May 1993 the ymca defaulted on its construction loan, apparently because of insufficient revenues from the room rentals. Ultimately, the city paid the defaulted loan, and the ymca and the city entered into a new management agreement in April 1995 regarding the YMCA’s operation of the one hundred rooms. The 1995 agreement provided that the ymca would continue to manage and operate the residence program “in accordance with its program guidelines, rules and regulations.” The agreement provided that the ymca would “continue to use its best efforts to refer residents to appropriate social agencies, including, but not limited to, mental health services, job skill and job placement services and assistance in finding permanent affordable housing.” (Emphasis added.) In a provision entitled “Rental Rate Limitation,” the agreement stated: The Y shall make available for rent on a monthly basis not less than eighty (80) of the units in the Residence Program at a rate not to exceed seventy-five (75%) percent of the fair market rent for an efficiency unit (zero bedrooms) established from time to time for the City by the U.S. Department of Housing and Urban Development (hud). The above rental rate limitation shall not apply to twenty (20) of the units, and may only be increased beyond the above HUD guidelines with respect to the remaining eighty (80) units with the permission of the City. The Y may establish differentiated rental rates on a daily and weekly basis and if so, must establish reasonable policies regarding a resident’s right to the appropriate rental rate. The Aim Arbor Tenants Union sought a judicial declaration that the relationship of the ymca to its residents is one of landlord and tenant and that the ymca is therefore subject to the several statutes governing that relationship. The ymca argued that the nature of its facility containing single-occupancy rooms is that of a hotel or public lodging house offering transitional shelter to its “guests” and that it is not subject to the statutes applicable to landlords and tenants. The distinction between a guest and a tenant is significant whereby a guest is not entitled to notice of termination and can be the subject of self-help eviction, including a lockout, by the proprietor, while a tenant has protection against such measures. See MCL 600.2918; MSA 27A.2918, and see, generally, 2 Powell on Real Property, § 16.02[3][ii], p 16-29; 40 Am Jur 2d, Hotels, Motels, and Restaurants, § 68, p 946; 49 Am Jur 2d, Landlord and Tenant, § 2, pp 49-50 and §§ 231-238, pp 224-230; 52A CJS, Landlord and Tenant, § 752, p 79. See also Poroznoff v Alberti, 161 NJ Super 414, 419-423; 391 A2d 984 (1978), aff’d 168 NJ Super 140; 401 A2d 1124 (1979), and cases cited therein. Following the parties’ cross-motions for summary disposition, the trial court determined that the ymca is not a “hotel” and its residents are not “guests.” The trial court held that the legal relationship between the YMCA and its residents is one of landlord-tenant and that the ymca is subject to the statutes that apply to landlords and tenants. We disagree with the trial court that the legal relationship of the ymca and its residents is a landlord-tenant relationship and we hold that the relationship is one of hotel and guest. n In determining that a landlord-tenant relationship exists between the ymca and its residents, the trial court was guided in large part by its examination of the 1995 agreement between the YMCA and the city of Ann Arbor, the ymca’s agreement and guest policy with its residents, and the relationship between the YMCA and its occupants. The court concluded that under the 1995 agreement with the city, the YMCA was obligated to provide rental housing for low and moderate income residents and that at least eighty percent of such housing must be provided on a monthly basis. The court further concluded that the ymca operated in such a manner, rather than as a transient overnight or short-stay facility. We conclude that the trial court’s determinations were erroneous. The legal relationship established by the renting of a room generally depends on the intention of the parties, gathered from the terms of the parties’ contract and interpreted in light of surrounding facts and circumstances. 40 Am Jur 2d, Hotels, Motels, and Restaurants, § 14, p 910; 49 Am Jur 2d, Landlord and Tenant, § 21, p 64; Powell, § 16.02[3][ii], p 16-29; 1 Restatement Property, 2d, Landlord and Tenant, § 1.2, p 10. The character of the relationship is ordinarily a question of law and fact. Id. Although the 1995 agreement between the city and the YMCA makes reference to the operation of a “residence program” and the provision of “housing,” this does not operate as an admission that the ymca is providing “rental housing” that gives rise to a landlord-tenant relationship. To be binding on the ymca, such a statement must be made by a party or the party’s attorney during the course of a trial and must be a distinct, formal admission solemnly made for the express purpose of dispensing with proof of a particular fact. Macke Laundry Service Co v Overgaard, 173 Mich App 250, 253; 433 NW2d 813 (1988). Even if it were an admission, an admission regarding a point of law is not binding on a court. Id. Elsewhere, the 1995 agreement specifically provides that the operation of the ymca’s units will be in accordance with the ymca’s existing guidelines, rules, and regulations for single-occupancy rooms and further provides that the ymca will assist its residents in finding permanent housing. At the time of the agreement, as at the time of the proceedings in this case, the ymca offered its rooms on a day-to-day basis, although discounted rates could be obtained for longer stays, and it did not offer permanent rental housing. That the purpose of the agreement is to provide short-term or transitional accommodations is evidenced by the inclusion in the agreement of the provision that the YMCA will assist its residents in finding permanent housing. We agree with the YMCA that it is not obligated under the paragraph entitled “Rental Rate Limitation” to provide at least eighty percent of its units as monthly rentals. Reading the eighty-room-requirement in context and guided by the stated intentions of the parties who signed the 1995 agreement, we conclude that the language in that paragraph refers to a limitation on the amount of rent that the YMCA may charge its occupants who stay a month, and does not serve to obligate the ymca to provide monthly rental housing in at least eighty percent of its units. Affidavits submitted by the ymca, which were unrebutted by the tenant’s union, state that the purpose of the provision was to assure that those individuals who stayed at the YMCA for a month or longer would be charged a monthly room rate equivalent to seventy-five percent of the fair market rent level for a single-room occupancy unit as defined by hud and was not intended to result in any change in the ymca’s traditional rental practices and procedures. The ymca attested that it has never rented eighty percent of its rooms on a monthly basis. The city of Ann Arbor additionally attested that the eighty-room requirement originally was the basis for the rent structure for the rooms at the ymca, but further attested that the rationale was no longer of any effect. Finding nothing in the 1995 agreement between the ymca and the city to dictate a result here, we now must determine whether the requisite elements of a landlord-tenant relationship are otherwise present in this case. in In Grant v Detroit Ass’n of Women's Clubs, 443 Mich 596, 605, n 6; 505 NW2d 254 (1993), the Michigan Supreme Court set forth the essential characteristics for a landlord-tenant relationship: It is generally held that, in order that the relation of landlord and tenant may exist, there must be present all the necessary elements of the relation, which include permis sion or consent on the part of the landlord to occupancy by the tenant, subordination of the landlord’s title and rights on the part of the tenant, a reversion in the landlord, the creation of an estate in the tenant, the transfer of possession and control of the premises to him, and, generally speaking, a contract, either express or implied, between the parties. [Emphasis added.] See 51C CJS, Landlord and Tenant, § 1, p 32. The essential characteristics of a landlord-tenant relationship are not present in the relationship between the ymca and its guests. The contract between the YMCA and its guests does not contain language evidencing an intent to form a landlord-tenant relationship. It is uncontested that the ymca consents to the occupancy of its rooms; however, the consent is highly qualified and is limited to a guest’s right to occupy a room on a day-to-day basis. Although there may be an agreed-upon duration of a guest’s stay, it is a conditional agreement, with the YMCA specifically reserving the right to ask a guest to leave a room at any time. Also, the guest is free to leave at any time and is refunded any unused portion of payment that has been made in advance. In contrast, in a lease situation, a tenant’s abandonment of the premises before the end of the term does not extinguish the tenant’s obligation to pay the rent for the duration of the con tracted-for stay and the tenant is hable for rent that accrues until the premises are rerented or the term expires. 2 Cameron, Michigan Real Property Law (ICLE, 1993), Landlord and Tenant, §§ 20.57, 20.58, p 929. Further, in the contract between the instant parties, the YMCA expressly retains, rather than subordinates, its rights. As in De Bruyn Produce Co v Romero, 202 Mich App 92, 101; 508 NW2d 150 (1993), there is no language conveying a possessory interest in specific, designated property or providing for an occupant’s exclusive use and possession of any property. Rather, the guest explicitly acknowledges that “he or she is not a tenant but a licensee on a day-today basis, and that Guest has no property or possessory interest in the room being rented to Guest.” It is this latter characteristic of exclusive possession and control of the premises — one that lies in the character of the possession — that is the fundamental criteria in distinguishing between a tenant and a guest. 49 Am Jur 2d, Landlord and Tenant, §§21, 22, pp 64-65; Powell, § 16.02[3][ii], pp 16-28 to 16-29; Restatement, § 1.2, p 10 and Reporter’s Note, pp 12-13. See Buck v Del City Apartments, Inc, 431 P2d 360, 363 (Okla, 1967). A tenant has exclusive legal possession and control of the premises against the owner for the term of his leasehold, whereas a guest is a mere licensee and only has a right to use of the premises he occupies, subject to the proprietor’s retention of control and right of access. Buck, supra; Poroznoff, supra, 161 NJ Super 419-421; Green v Watson, 224 Cal App 2d 184; 36 Cal Rptr 362 (1964); 49 Am Jur 2d, Landlord and Tenant, §§ 21, 22, pp 64-65. In Grant, supra at 608, where the Michigan Supreme Court found that a tenancy existed, the Court specifi cally determined that there had been a transfer of possession and control by the defendant landlord to the plaintiff and that the plaintiffs occupation of the apartment was exclusive of the defendant. Here, although an occupant of the ymca must be assigned a room for the occupant’s exclusive use, the occupant’s right to occupy it is subject to the ymca’s retention of control and right of access to the room, i.e., control over visitation in the room, control over storage of food and personal belongings in the room, retention of keys to the room, and retention of right of access to the room for such purposes as housekeeping and maintenance. See 40 Am Jur 2d, Hotels, Motels, and Restaurants, § 61. In the instant case, the residents of the ymca simply do not have the requisite exclusive possession and control of their premises dining the period of their occupancy to give rise to a tenancy. Our decision is buttressed by several cases that have examined room-rental situations to determine whether the essential characteristics of a landlord-tenant relationship are present. In making that determination, these cases have examined various factors, including: whether the place holds itself out to be a “hotel” and accords its occupants the status of “guest”; whether there is a guest register; whether the occupant has a permanent residence elsewhere; whether there is a lease, either written or oral, and what rights and duties it spells out; whether the length of the stay is for an agreed-upon or definite duration, how long the stay is, and what the purpose of the stay is; whether rent is paid daily, weekly, or monthly; what services are provided, such as linens, housekeeping, heat, and electricity; whether the occupied premises include cooking or bathing facilities; what kind of furnishings are in the premises and to whom they belong; and whether the proprietor’s employees retain keys and access to the room. One’s status as a guest is generally not affected by the fact that another pays for his accommodations. 40 Am Jur 2d, Hotels, Motels, and Restaurants, § 24, p 917. See, e.g., Bourque v Morris, 190 Conn 364; 460 A2d 1251 (1983). Although the trial court in the instant case seemingly placed great weight on the fact that many of the ymca’s residents have a week-to-week or month-to-month duration of stay, the fact that a person who has been received as a guest remains for a considerable time or makes a special contract for the accommodations at a fixed rate per week or per month does not necessarily operate to terminate the relationship of hotel and guest. 40 Am Jur 2d, Hotels, Motels, and Restaurants, § 26, pp 918-919; Layton v Seward Corp, 320 Mich 418; 31 NW2d 678 (1948), Buck, supra, 431 P2d 364. The length of a person’s stay and the rate or method of payment are merely evidentiary and not controlling. 40 Am Jur 2d, Hotels, Motels, and Restaurants, §§ 22, 23. Michigan has relatively few reported cases where the issue at hand has been examined. In Layton, supra at 420-421, the plaintiff, who was a jockey, and his wife occupied a room at the Seward Hotel in Detroit for four months during the riding season and paid rent by the month. The Michigan Supreme Court noted the following circumstances as criteria in the determination whether the plaintiff was a guest or a tenant of the hotel: there was no lease or definite term of tenancy, the place held itself out as a hotel and its occupants as guests, and only one room was occupied rather than a suite of rooms. Id. at 424. The Court concluded that the plaintiff was a guest of the hotel. Id. at 425. In reaching that conclusion, the Court noted that one’s status as a guest is determined by a consideration of all the circumstances and the fact that payment for accommodations is made at a fixed rate per week or month is only one of the considerations. Id. at 424. See also Brams v Briggs, 272 Mich 38, 43; 260 NW 785 (1935) (a person is a lodger as opposed to a tenant where, although the person’s stay is of a permanent nature and at a fixed rate, the person merely has use of his room, and the hotel management retains general control over the room and provides maid service). In a case specifically involving a ymca, the district court of New Jersey held that the relationship between a YMCA and its residents is that of hotel and guest. Poroznoff, supra, 161 NJ Super 419-423. The court determined that where a ymca, among other things, holds itself out as a place where sleeping accommodations are available to transient or permanent guests, maintains a contract or understanding with its residents that the relationship is one of an innkeeper and guest, and is intended to be occupied as a hotel, then it is a “hotel” and its occupants are “guests.” Id. at 417-421. The court noted the traditional distinction, “held in the majority of other jurisdictions,” between a “guest” and a “tenant” — the distinction being the right of a tenant to exclusive legal possession and control and the right of a guest to mere use of the premises. Id. at 419-421. The district court held, and the superior appellate court affirmed, that a week-to-week resident of the YMCA did not have the requisite possession and control of his room and was therefore not a tenant, despite the fact that the room was his only residence. Id. at 419-423; 168 NJ Super 141-142. Accordingly, the ymca was not required to submit to statutory landlord-tenant procedures in evicting its residents. Id. We believe that the holding in Poroznoff, supra, is equally applicable in the instant case. Most of the factors in this case are indicative of a hotel-guest relationship, not one of landlord and tenant. The facts indicate that the ymca does hold itself out as a “hotel” pursuant to MCL 427.1; MSA 18.321, accords its residents the status of “guest,” and provides accommodations on a daily basis, although longer stays may be arranged at a discounted rate. Although there may be an agreed-upon duration of a stay, the guest is free to leave at any time and is refunded the unused portion of any advance payment. In the guest agreement, the ymca specifically reserves the right to terminate a guest’s occupancy at any time and without any reason. The ymca provides the furnishings in a room and provides traditional hotel amenities such as linens and housekeeping service. The rooms are not equipped with cooking or bathing facilities. The residents are prohibited from storing food or personal belongings in their rooms and specifically acknowledge that they have no possessory interest in their rooms. Visitation on the residents’ floor and in the rooms is restricted by the YMCA. The residents are required to leave their room keys at the front desk when they leave the building, and the YMCA retains keys and access to the rooms. Upon examining the relationship between the parties, we conclude that the above factors provide compelling evidence that a hotel-guest, rather than a landlord-tenant, relationship exists between the parties. IV We therefore hold that despite the fact that the instant YMCA increased the capacity of its accommoda tions at the behest of and as financially supported by the city of Ann Arbor to provide additional single-occupancy rooms for low-income people, despite the fact that many occupants of the ymca may stay on a month-to-month basis and receive discounted rates, despite the fact that payments for some of the rooms may be made or guaranteed by social agencies on behalf of occupants, and despite the fact that for some of the occupants the ymca is their only residence, there is no relationship of landlord and tenant between the ymca and its occupants because all the essential characteristics of such a relationship — especially that of exclusive possession and control — do not exist. Grant, supra; Layton, supra; Poroznoff, supra. To hold otherwise would create an intolerable burden on the ymca in its efforts to provide inexpensive temporary lodging for the very people it undertakes to serve, with a likely result being that those people would, in the end, be without accommodations. There being no landlord-tenant relationship, we also hold that the ymca is not subject to those statutes that apply to landlords. Because the remainder of the parties’ issues are contingent on a determination by this Court that a landlord-tenant relationship exists in this case, we decline to address those issues. Reversed. The trial court held that the ymca is subject to the provisions of the Truth in Renting Act, MCL 554.631 et seq.; MSA 26.1138(31) et seq., the landlord-tenant relationship act, MCL 554.601 et seq.; MSA 26.1138(1) et seq., and the forcible entry and detainer act, also referred to as the antilockout statute, MCL 600.2918; MSA 27A.2918. The trial court specifically declined to determine whether the ymca had violated the Consumer Protection Act, MCL 445.901 et seq.; MSA 19.418(1) et seq. A “hotel” is defined by statute as a “building or structure kept, used, maintained as, or held out to the public to be an inn, hotel, or public lodging house,” and does not include bed and breakfast establishments. MCL 427.1(b); MSA 18.321(b). For the purposes of this opinion, our use of the term “hotel” will thus be broadly construed to include the terms “inn” and “lodging houses,” although we recognize that various authorities may distinguish among them. Similarly, guests, lodgers, and roomers will be referred to collectively in this opinion as “guests.” In its 1995-96 annual catalogue, the Ann Arbor ymca states its mission as follows: “The Ann Arbor ymca is a non-profit, independent, community-based membership organization that serves primarily youth, families and adults of Washtenaw County It encourages fellowship, develops character and intellectual and physical skills, recreational activities and affordable living accommodations.” In its opinion, the trial court noted that the ymca requires each prospective resident to fill out a two-part “residential application form.” The fust part is primarily identification data, including employment and personal references; the second part, which is entitled “extended stay,” requires detailed information about the applicant’s medical, criminal, and military background and provides space for approval of weekly and monthly rental rates. When a room becomes available, an interview is conducted with the applicant covering the applicant’s source of income, the desired length of stay, whether the applicant has an assigned social services case, and the rules and regulations of the ymca. See n 2, supra. As of January 17, 1996, fifty-eight of the one hundred rooms at the ymca were being rented at a weekly rate and thirty-six rooms were being rented at a monthly rate. In an affidavit dated August 28, 1995, the ymca stated that the median length of stay for a guest is thirty-one days. See n 1, supra. We note that our review of the trial court’s declaratory relief is de novo on the record. De Bruyn Produce Co v Romero, 202 Mich App 92, 98; 508 NW2d 150 (1993). We will not reverse the trial court’s findings of fact unless they are clearly erroneous. We note that the landlord-tenant relationship act, which generally regulates security deposits, defines “tenant” as any “person who occupies a rental unit for residential purposes with the landlord’s consent for an agreed upon consideration.” MCL 554.601(d); MSA 26.1138(1)(d). The definition is quite broad and would arguably apply here to regulate security deposits if the ymca required them. However, the ymca apparently does not require security deposits of its occupants. Therefore, in determining whether a landlord-tenant relationship is present in this case, we are guided by various authorities that have set forth and examined the fundamental characteristics of such a relationship. In addition to the cases discussed in the text of our decision, see Francis v Trinidad Motel, 261 NJ Super 252; 618 A2d 873 (1993) (individual who stayed in a hotel room for over two months, where he paid rent on a weekly basis and claimed it as his sole residence, was a “guest” and not a “tenant”); Bourque v Morris, 190 Conn 364; 460 A2d 1251 (1983) (no landlord-tenant relationship where person stayed in a hotel room that had no toilet, cooking, or bathing facilities, even though person stayed for three months and rent was paid on weekly basis by city because the person was a welfare recipient); Buck, supra (occupant who had no other residence, who stayed for 1-1/2 months, and who paid on a weekly basis was a guest where the place held itself out as a motel, there was a registration area, accommodations were on a daily basis, and maid service was available); Sawyer v Congress Square Hotel Co, 170 A2d 645 (Me, 1961) (where furnishings were the property of the hotel, the hotel provided linens, cleaning service, heat, and electricity, and the hotel employees retained keys and access to a room, there was a hotel-guest relationship despite the fact that stay was a long one and that payment for a room was made on a weekly or monthly basis). In Universal Motor Lodges, Inc v Seignious, 146 Misc 2d 395; 550 NYS2d 800 (NY Just Ct, 1990), the court found a month-to-month tenancy where a “homeless person” had resided for over two years in a motel room that was paid for by the Department of Social Services and where accommodations were provided only to homeless public assistance recipients and not to the general public. In finding that the person was not a “transient,” the court in Seignious was guided by various statutes in New York that define a transient as someone who resides for a period of ninety days or less. Id. at 395-397. See also Mann v 125 E 50th St Corp, 124 Misc 2d 115; 475 NYS 2d 777 (NY City Civ Ct, 1984), where under New York statute a tenant includes a resident, other than a transient, of a hotel who stays for thirty days or longer. Michigan does not have comparable statutes that define “tenant” by the length of a person’s stay. Moreover, although social service agencies do guarantee payment for many of the residents at the ymca in the present case, we are unaware of any residents who have stayed there for over two years. Further, the ymca’s accommo dations are held out to the general public. The circumstances attendant to the New York cases are unlike those in the instant case.
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Per Curiam. Plaintiff appeals as of right from a judgment of legal separation, challenging the grant of full legal and physical custody of the parties’ two daughters, Jennifer Lynnette and Katherine Renee, to defendant. We affirm. A trial court in a child custody determination must make specific findings of fact regarding each of twelve factors that are to be taken into account in determining the best interests of the child. Daniels v Daniels, 165 Mich App 726, 730; 418 NW2d 924 (1988). These factors are set forth in MCL 722.23; MSA 25.312(3). In this case, the trial court found that the parties were equal with regard to eight factors, that defendant prevailed with regard to three factors, one of which the court relied on heavily in its determination, and that plaintiff prevailed with regard to only one. Plaintiff argues that the trial court’s conclusions regarding the ultimate custody issue were an abuse of discretion, referring to Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994) (opinion of Brickley, J., joined by Cavanagh, C.J., and Boyle, J.), where a plurality opinion from the Michigan Supreme Court stated, “a court’s discretion . . . must be supported by the weight of the evidence.” Plaintiff expressly declined to challenge the trial court’s factual findings, conceding in her brief that “the trial court’s findings of fact are not challenged.” Counsel for plaintiff again stated during oral argument before this Court that although he disagreed with some of the factual findings, no error requiring reversal is claimed. Instead, plaintiff urges, the trial court’s conclusions misapplied the facts by incorrectly weighing them, which amounted to an abuse of discretion. In a child custody case, we review the trial court’s factual findings under the “great weight of the evidence” standard, its discretionary rulings for an abuse of discretion, and questions of law for clear legal error. Ireland v Smith, 451 Mich 457, 463-464, n 6; 547 NW2d 686 (1996). In determining factor b, “[t]he 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,” MCL 722.23(b); MSA 25.312(3)(b), the trial court focused on a religious dispute between the parties that, in large part, led to the dissolution of the marriage. It was clearly the parties who heavily weighed this religious dispute, not the court. The evidence established that plaintiff stopped attending the Lutheran church and began worshipping at an alternative home church before the separation, and that, after that, both children attended services with her during the marriage, choosing at times to attend with plaintiff rather than with defendant at Trinity Lutheran. Also, although plaintiff stopped attending Lutheran services, she testified that she was still practicing the Christian religion. We note that the trial court stated: “While others might find the differences between the religious views of these two churches, such as whether baptism should be as an infant or as an adult, to be not very significant, to Rodger and Laura McCain these are matters of great significance.” In ruling on factor b, the trial court stated: “Since the parties view the differences between their two churches as being so major, the Court must also.” It was proper for the trial court to consider the magnitude of the force that drove the parties apart. Its consequences were not overweighed. Before the religious dispute, this family attended the Lutheran church. Accordingly, it was reasonable for the trial court to consider defendant as more prepared to continue the children in their religion and to give this factor some weight in his favor. Next, the trial court found that defendant prevailed with respect to factor c, “[t]he capacity ... to provide the child with food, clothing and medical care . . . ,” MCL 722.23(c); MSA 25.312(3)(c), because plaintiff “has shown little inclination to do better than the piecework sewing and alteration which produces a minimal income.” We cannot say it was against the great weight of the evidence in this case to determine that plaintiff’s actions did not “reflect a disposition to provide for the material needs of the children even though the capacity is clearly present.” Plaintiff testified that she was actively searching for a job as a dietitian. She testified that she had sent out thirty-four resumes and had had thirteen interviews in her field. She accepted a sewing job in the interim, and this provided enough money, $200 a week, for plaintiff to get her own two-bedroom apartment, with enough room for her children, in a “suitable and appropriate” neighborhood. Plaintiff testified that the sewing job was expected to pay more in the future and provided the flexibility for her to spend time with her children, so she would take another job “if there is a better job available and it’s workable for my family.” Nevertheless, the trial court’s opinion that plaintiff should have been able to find better paying work is reasonable on its face in light of plaintiff’s education and prior work experience. Further, defendant is a nurse anesthetist who earned $80,000 in 1994. The trial court did not err in weighing factor c in favor of defendant. The trial court found that defendant prevailed with regard to factor h, “[t]he home, school and commuraty record of the child,” MCL 722.23(h); MSA 25.312(3)(h), because the trial court was concerned about plaintiff’s judgment regarding Katherine’s education. This is a difficult point. The court found that plaintiff favored home schooling for Katherine and stated: “No evidence was presented to show Laura McCain had ever made any of the extensive preparations needed to successfully home school Katie, as she had originally proposed.” We may not have placed in the balance the fact that plaintiff made questionable judgments regarding Katherine’s schooling when she stipulated that she would not remove Katherine from her school and testified that it was not in Katherine’s best interests at that time to home school her because Katherine was doing well in her school. However, our review of the trial court’s factual findings is not de novo, but for whether they are against the great weight of the evidence. Ireland, supra at 463- 464, n 6. Clearly, plaintiff understood that home schooling would create more conflict with defendant. We note that the trial court also found that plaintiff showed bad judgment by prohibiting Katherine from reading a history novel in school. From our review of the record, plaintiff provided no sound reason for this decision. This Court cannot find the facts “clearly preponderate in the opposite direction” of the trial court’s consideration of factor h such that reversal is. warranted. MCL 722.28; MSA 25.312(8). It was reasonable to regard plaintiff’s actions with regard to Katherine’s schooling as reflecting very poorly on her judgment about educational matters. Discretionary rulings are reviewed under a “palpable abuse of discretion” standard and this custody award does not reflect an abuse of discretion. We note with great concern the test of the trial court’s finding regarding factor j, “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.” The trial court, in what can only be described as scathing language, found: Defendant Rodger McCain has reacted to the breakdown in his marriage with amazing vindictiveness and meanness . . . is obsessed with Laura McCain’s change in religious view and with his loss of control over her .... Mr. McCain’s obsession with his wife’s change of religion and his lack of control over her, in the opinion of a lay Judge, borders on being a mental disturbance to be considered under factor (g) . . . . This, however, is a clinical determination that is beyond the scope of this Court’s expertise. . . . There are a number of incidents, however, which show Rodger McCain will not just fail to facilitate a close relationship between the children and Laura McCain, he will go out of his way to try to destroy it. [Emphasis supplied.] This finding presents this Court with a disturbing problem. Here, defendant prevailed on all factors, other than those factors where the trial court found equivalency, but factor j. In its finding regarding factor j, however, the trial court made it clear that it believed that defendant would attempt to destroy the relationship between plaintiff and her children. The issue presented is whether this finding can outweigh the other findings under which defendant prevailed or was found to be equivalent. It is well, at this point, to reiterate the standards of review applicable in child custody cases. MCL 722.28; MSA 25.312(8) provides: To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit comí; shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue. Three justices of the Michigan Supreme Court have observed, in Fletcher v Fletcher, supra at 877, that [b]y its terms, § 8 distinguishes among three types of findings and assigns standards of review to each. Findings of fact are to be reviewed under the “great weight” standard, discretionary rulings are to be reviewed for “abuse of discretion,” and questions of law for “clear legal error.”[ ] The question whether a finding with regard to a single factor can outweigh findings regarding all other factors is a question of law. In a somewhat different setting, this Court has dealt with this question in Heid v AAASulewski, (After Remand) 209 Mich App 587; 532 NW2d 205 (1995). In Heid, the trial court had changed physical custody of a child from sole custody with the father to joint physical custody. This Court noted that MCL 722.27(1)(c); MSA 25.312(7)(1)(c) precludes a trial court from modifying or amending its previous judgments or orders or issuing a new order so as to change the established custodial environment of a child “unless there is presented clear and convincing evidence that it is in the best interest of the child.” Heid, swpra at 593. Thus, the evidentiary standard or a change in established custodial environment set out in MCL 722.27(1)(c); MSA 25.312(7)(1)(c), that of clear and convincing evidence, is not the same as the standard of review for a question of law set out in MCL 722.28; MSA 25.312(8), that of clear legal error. Nevertheless, the observations of the Court in Heid axe helpful here. The Court in Heid stated: “[W]e are unwilling to conclude that mathematical equality on the statutory factors necessarily amounts to an evidentiary standoff that precludes a party from satisfying the clear and convincing standard of proof.” Heid, supra at 594 (emphasis in original). The Court went on to say: We disapprove the rigid application of a mathematical formulation that equality or near equality on the statutory factors prevents a party from satisfying a clear and convincing evidence standard of proof. We are duty-bound to examine all the criteria in the ultimate light of the child’s best interests. [Id. at 596.] Heid, we believe, supports — and indeed may even require — a conclusion that the statutory best interests factors need not be given equal weight. Neither a trial court in making a child custody decision nor this Court in reviewing such a decision must mathematically assess equal weight to each of the statutory factors. However, one cannot find in Heid support for the proposition that a finding regarding one factor must completely countervail all the other findings under which the opposing party prevailed or was found equivalent. We conclude, therefore, that the trial court did not commit clear legal error, Ireland, supra at 463-464, n 6, when, despite its highly negative view of defendant under factor j, it did not weigh this factor so highly as to overcome all the other factors under which defendant prevailed or was found equivalent. Similarly, the trial court’s findings of fact with respect to each of the factors in question were not contrary to the great weight of the evidence, nor was its discretionary ruling regarding the ultimate custody decision an abuse of discretion. Mfirmed. We recognize that some erroneous considerations in addressing the statutory best interests factors may be errors of law reviewed for clear legal error. See Ireland, supra at 462-464 & n 6. That is not the case here. This decision was later adopted by a majority of the Court. Ireland v Smith, 451 Mich 457, 463-464, n 6; 547 NW2d 686 (1996).
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