author: Mackenzie, J.

text:
    DeHART v STATE BOARD OF REGISTRATION IN PODIATRY
    Docket No. 78-3366.
    Submitted June 19, 1979, at Lansing.
    Decided May 5, 1980.
    The State Board of Registration in Podiatry (hereinafter defendant) issued an order revoking the license of William W. DeHart, Jr. (hereinafter plaintiff) to practice podiatry on the ground of wilful and gross malpractice or neglect. Defendant’s decision followed an extensive hearing concerned with plaintiff’s alleged misconduct consisting of the administration of intravenous therapy called "chelation therapy” and the performance of surgery on six patients. Defendant made the following findings of fact: (a) plaintiff performed surgery without patients’ knowledge, (b) plaintiff performed bone surgery instead of expressly requested corn removal, (c) in one case plaintiff performed twenty separate surgical procedures on ten different dates cutting out all the patient’s joints connecting the toes to the main part of the foot, which surgery the defendant found unnecessary and not related to the foot ailment from which the patient suffered, and (d) plaintiff, in another case, failed to take adequate precautions in light of a patient’s diabetic condition and performed unjustified surgery without consent. Plaintiff appealed to Ingham County Circuit Court, which affirmed the defendant’s decision, James T. Kallman, J. Plaintiff appeals. Held:

    1. The standard "wilful and gross malpractice or wilful and gross neglect in the practice of podiatry” found in the Podiatry Act is a constitutionally sufficient standard for revoking a podiatrist’s license since it is specific enough to give notice to a podiatrist of the type of conduct which is improper and could lead to the revocation of his professional license.
    2. A person practicing a healing arts profession for which he holds no license is required to adhere to the standards of practice of those who are properly licensed.

      References for Points in Headnotes
    [1] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 45, 46, 62.
    [2, 4] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 111.
    [3] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 19, 27.
    [5] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 76.
    [6] 30 Am Jur 2d, Evidence § 1088.

      3. The Podiatry Act does not vest podiatrists with general authority to treat ailments of the human body merely because such treatment may be incidentally beneficial to the human foot.
    4. A podiatrist invading the field of medicine is no longer acting as a podiatrist and has no greater authority to engage in the unlicensed practice of medicine than any other unlicensed person; therefore he is held to conformity to the accepted standards of medical practice, not podiatric practice.
    5. A decision of the Board of Registration in Podiatry must be in accordance with competent, material and substantial evidence and such a decision will ordinarily be upheld since it is not the reviewing court’s function to resolve conflicts in the evidence or to pass on the credibility of the witnesses.
    Affirmed.
    1. Licenses — Podiatrists — Revocation of License — Constitutionality.
    The standard "wilful and gross malpractice or wilful and gross neglect in the practice of podiatry” found in the Podiatry Act, is a constitutionally sufficient standard for revoking a podiatrist’s license; it is specific enough to give notice to a podiatrist of the type of conduct which is improper and could lead to the revocation of his professional license (MCL 338.302[11]; MSA 14.662[11]).
    2. Licenses —• Healing Arts Standards.
    A person practicing a healing arts profession for which he holds no license is required to adhere to the standards of practice of those who are properly licensed.
    3. Licenses — Podiatry — Podiatry Act — Scope of Authority.
    The Podiatry Act does not vest podiatrists with general authority to treat ailments of the human body merely because such treatment may be incidentally beneficial to the human foot (MCL 338.301; MSA 14.661).
    4. Licenses — Podiatry — Podiatry Act — Scope of Authority.
    A podiatrist invading the field of medicine is no longer acting as a podiatrist and has no greater authority to engage in the unlicensed practice of medicine than any other unlicensed person; therefore, he is held to conformity to the accepted standards of medical practice, not podiatric practice.

      5. Administrative Law — Podiatry — Review.
    A decision of the Board of Registration in Podiatry must be in accordance with competent, material and substantial evidence, and such a decision will ordinarily be upheld since it is not the reviewing court’s function to resolve conflicts in the evidence or to pass on the credibility of the witnesses.
    6. Evidence — Weight of Evidence — Witnesses.
    The weight to be given testimony does not depend on the number of witnesses that testified for each side.

      Farhat, Burns & Story, P.C. (by Vittorio E. Porco), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Patrick F. Isom, Assistant Attorney General, for defendant.
    Before: Cynar, P.J., and Mackenzie and L. W. Corkin, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   Mackenzie, J.

On October 4, 1977, defendant Board of Registration in Podiatry issued an order revoking the license of plaintiff William W. DeHart, Jr. to practice podiatry on the ground of wilful and gross malpractice or neglect. Plaintiff appealed to Ingham County Circuit Court, which affirmed the Board’s decision revoking plaintiff’s license on August 8, 1978. Plaintiff now appeals as of right.

The Board’s decision followed an extensive hearing concerned with alleged misconduct consisting of the administration of intravenous therapy termed "chelation therapy”, contrary to standards of practice set forth in the Board’s findings of fact, and also the performance of surgery on six patients. The Board made findings of wilful and gross neglect and malpractice, specifically, as follows: plaintiff performed surgery without patients’ knowledge, plaintiff performed bone surgery instead of expressly requested corn removal, plaintiff, in one case, performed twenty separate surgical procedures on ten different dates cutting out all the patient’s joints connecting toes to the main part of the foot, which surgery the Board found was unnecessary and not related to the foot ailment from which the patient suffered, and plaintiff, in another case, failed to take adequate precautions in light of a patient’s diabetic condition, and performed unjustified surgery without consent.

I

Plaintiff first contends that the statutory language "wilful and gross malpractice or wilful and gross neglect in the practice of podiatry” does not provide a constitutionally sufficient standard for revoking a podiatrist’s license. We disagree. According to § 2 of the Podiatry Act:

"The board may refuse to issue or continue and may revoke or suspend a certificate of qualification or license and may place on probation a person who has: * * *
(e) Committed wilful and gross malpractice or wilful and gross neglect in the practice of podiatry.” MCL 338.302(11); MSA 14.662(H)._

We believe that the standard "wilful and gross malpractice or wilful and gross neglect in the practice of podiatry” is specific enough to give notice to a podiatrist of the type of conduct which is improper and could lead to the revocation of his professional license. In Wozniak v State Board of Examiners in Optometry, 23 Mich App 630; 179 NW2d 210 (1970), this Court upheld charges against an optometrist of gross incompetence and malpractice, finding such standards sufficient upon which to base a complaint.

We note that similar standards have been upheld in other jurisdictions. In Yoshizawa v Hewitt, 52 F2d 411 (CA 9, 1931), the defendant doctor was charged with professional misconduct and gross carelessness and/or manifest incapacity as a physician. The court stated that "gross carelessness” was synonymous with "gross negligence”, and that the term had an ascertainable meaning to the medical profession as well as to the layman. Thus, the court held that the term "gross carelessness” was not vague and that the charge filed sufficiently gave the defendant notice of the nature of the allegation he was called upon to defend. See generally 61 Am Jur 2d, Physicians, Surgeons, Etc. § 62, p 185; 28 ALR3d 487.

We do not believe that the holding in State Board of Dentistry v Blumer, 78 Mich App 679, 683; 261 NW2d 186 (1977), mandates a different result. In Blumer, this Court held that reliance of the State Board of Dentistry on the undefined standards of "dishonorable” and "unprofessional” in revoking the plaintiffs license to practice dentistry violated due process because it gave the board unlimited discretion in determining the type of conduct which would result in revocation of a license. The standard "guilty of dishonorable or unprofessional conduct in the practice of dentistry” is much broader than the standard "wilful and gross malpractice or wilful and gross neglect in the practice of podiatry”, since dishonorable or unprofessional conduct can encompass numerous other acts in addition to malpractice or negligence in performing services.

II

Plaintiff next contends he did not receive a fair hearing because the chief complaining witness of the Board of Registration in Podiatry had a strong personal bias against the plaintiff. We are unable to conclude that defendant was denied a fair hearing. The Board was free to consider the bias of the witness toward the plaintiff and to evaluate the credibility and weight to be afforded his testimony. See Clark v State Board of Registration in Medicine, 367 Mich 343, 348; 116 NW2d 797 (1962).

III

Plaintiff next contends it was improper for the Board to rely on expert medical testimony to establish the applicable standard of care for the administration of chelation therapy by a podiatrist. Plaintiff argues that in the absence of proof of a podiatric standard, he may not be found to have committed "wilful and gross malpractice or wilful and gross neglect in the practice of podiatry”. Clearly, that is the general rule. This case can be distinguished from those to which the general rule applies, however.

The first distinction is founded upon the conclusion that chelation therapy is not a method of therapy within the lawful scope of podiatry. That is, chelation therapy constitutes the practice of allopathic medicine, not podiatry. The hearing examiner below so concluded. Upon a review of the hearing examiner’s opinion, the Board agreed with factual findings regarding chelation therapy, but rejected the legal conclusion that the treatment exceeds the lawful scope of podiatry. The Board agreed that no other podiatrist in plaintiffs locale performed chelation therapy, but held that the record was insufficient to support a conclusion one way or the other as to whether the treatment exceeded the scope of podiatry. In reaching its conclusion on this issue, the Board committed an error of legal reasoning which was harmless, since the Board correctly applied the medical standard of practice.

When one practices a healing arts profession for which he holds no license, he is required to adhere to the standards of practice of those who are properly licensed. Thus, in the instant case, since the plaintiff unlawfully invaded the field of medicine, his actions were properly judged by the standards of practice for licensed doctors of medicine.

Chelation therapy as practiced by plaintiff was intravenous injection of chemicals into the bloodstream. Plaintiff learned about the therapy from a medical doctor in California who utilized it. The claimed benefits of the treatment were numerous and varied, including: reduction of blood cholesterol levels, reduction of high blood pressure, dissolving kidney stones, improving vision in diabetic retinopathy, and aiding innumerable other conditions relating to the human body. The treatment was to remove claimed impurities in the blood, termed "blood sludge” or "fungus”.

The lawful scope of podiatric practice is defined in § 1 of the Podiatry Act, supra, as follows:

"As used in this act, 'podiatrist’ or 'chiropodist’ means a physician and surgeon who examines, diagnoses, and treats abnormal nails, superficial excrescences occurring on the hands and feet, including corns, warts, callosities, bunions, and arch troubles or one who treats medically, surgically, mechanically, or by physiotherapy, ailments of the human foot, or one who is qualified as a podiatrist or chiropodist within the meaning of this act, except as hereinafter provided, through a certificate of qualification or license issued by the board of registration in podiatry. The words 'chiropodist’, 'chiropody’, and 'chiropodical’ are synonymous with the words 'podiatrist’, 'podiatry’, and 'podiatric’.” MCL 338.301; MSA 14.661. (Emphasis added.)

Essentially, then, a podiatrist is one who treats ailments of the human foot, a limited practitioner who is only authorized to treat human feet. A podiatrist is not a medical or osteopathic doctor who specializes in treatment of the foot.

The plaintiffs theory is that chelation therapy is within the scope of podiatry because it improves blood circulation, and improved blood circulation speeds the healing process when the podiatrist performs surgery on patients’ feet. We disagree. Chelation therapy as practiced by plaintiff was treatment which could have affected the whole body of the patient and not just ailments of the foot. The statute does not vest podiatrists with general authority to treat ailments of the human body because such treatment may be incidentally beneficial to the human foot.

Plaintiffs use of chelation therapy constitutes the practice of medicine as defined in § 2(g) of the Medical Practice Act, 1973 PA 185, as amended; MCL 338.1801 et seq.; MSA 14.542(1) et seq. It lies without that narrow segment of the practice of medicine in which a podiatrist is entitled to engage. When plaintiff so invaded the field of medicine, he was no longer acting as a podiatrist. He had no greater authority to engage in the unlicensed practice of medicine than any other unlicensed person; therefore, he is held to conformity to the accepted standards of medical, not podiatric, practice. As the Court held in Simpson v Hubert, 35 Mich App 523, 528; 193 NW2d 68 (1971):

"The standard of care, whether the action is against an impostor or a true member of the profession, is the same; both are required to conform to the standard of care of a member of the profession.”

Testimony as to the proper medical standard was introduced into the record below through the testimony of a medical doctor, Alvin M. Parfitt.

Plaintiff contends that Dr. Parfitt did not testify as to a general standard of practice but merely gave his own personal standards. We disagree. In fact, Dr. Parfitt testified that while he did not personally subscribe to the claims made on the benefits of chelation therapy, he was familiar with the medical literature and practice standards of those who had accepted the claims. Dr. Parfitt also described the kinds of test which would be done to determine whether a patient was a candidate for chelation therapy, which included a full physical examination.

The Board found that, while Dr. Parfitt did not testify specifically as to standards of podiatric practice in the administration of chelation therapy, he did testify as to the standard of practice in medicine for the administration of chelation therapy and for the administration of intravenous therapy generally. The Board then determined that the same standards applicable to medicine with regard to intravenous therapy also apply to a podiatrist administering chelation therapy. The Board found the accepted standard of practice included the following:

"1. An adequate history and physical examination of the patient must be taken prior to administration.
"2. An adequate check of the vital signs, i.e., blood pressure, pulse rate and respiration, prior to administration, monitoring thereof during administration and checking after administration are required.
"3. Blood testing, urine testing, and kidney function testing prior to administration are required.”

The Board then found that plaintiff had breached the standard. The record clearly substantiates the Board’s finding that plaintiff failed to comply with the applicable standard.

IV

Plaintiff contends that the findings of the Board of Registration in Podiatry are not supported by competent, material, and substantial evidence. We cannot agree with this contention.

A decision of the Board of Registration in Podiatry must be in accordance with competent, material, and substantial evidence. MCL 24.285; MSA 3.560(185). Findings of the tribunal will ordinarily be upheld since it is not the reviewing court’s function to resolve conflicts in the evidence or to pass on the credibility of the witnesses. See Soto v Director of the Michigan Dep’t of Social Services, 73 Mich App 263, 272; 251 NW2d 292 (1977).

Plaintiff’s basic position is that the Board erred in believing Dr. W. E. DeHart’s testimony over that of several other witnesses. This position is untenable, however, since the weight to be given testimony does not depend on the number of witnesses that testified for each side. See Rossien v Berry, 305 Mich 693, 701; 9 NW2d 895 (1943). Our review of the record persuades us that there was competent, material, and substantial evidence on the record as a whole to support the conclusions reached by the Board.

V

Plaintiff next contends that the Board of Registration in Podiatry abused its discretion by revoking the plaintiff’s license rather than imposing a less severe sanction. The language of MCL 338.302(11); MSA 14.662(11) provides that upon proof that a person committed wilful and gross malpractice or gross neglect in the practice of podiatry, the Board may revoke or suspend a certificate of qualification or license and may place the party on probation. In the absence of abuse, we will not disturb the Board’s exercise of discretion in this matter. A review of the record reveals a sound basis for the action of the Board since plaintiff was found guilty of seven counts of wilful and gross malpractice or neglect.

VI

Plaintiff contends that the circuit court erred in denying his request to file interrogatories and requests for admission for the purpose of establishing that the members of the Board had not read the entire administrative record.

According to MCL 24.281(1); MSA 3.560(181):

"When the official or a majority of the officials of the agency who are to make a final decision have not heard a contested case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposal for decision is served on the parties, and an opportunity is given to each party adversely affected to file exceptions and present written arguments to the officials who are to make the decision. Oral argument may be permitted with consent of the agency.”

The circuit court granted the Board’s motion for objection to the interrogatories and requests for admission, noting that it was required to review the Board’s decision based on the record as it was presented on appeal from the administrative decision.

We are unable to conclude that the circuit court’s decision constituted an abuse of discretion. In the final decision of the Board, the four members participating signed their names directly- below the following order:

"Upon having read the testimony in this cause and having reviewed the evidence, and considered the briefs and arguments of counsel herein, it is hereby ordered that License No. 572 issued to William W. DeHart, Jr., D.P.M. by the Board of Registration in Podiatry be and is revoked for the foregoing violations of Section 2(6)(e) of the Podiatry Act, 1915 PA 115, as amended.”

In addition, a review of the final decision indicates that the Board members carefully reviewed the entire record.

Affirmed.

       The challenged scheme has since been repealed and replaced by the new, comprehensive Public Health Code, 1978 PA 368, effective September 30, 1978, MCL 333.1101 et seq.; MSA 14.15(1101) et seq. In particular, the statutory standard under which the plaintiff had his license revoked has been repealed by MCL 333.25101; MSA 14.15(25101) and replaced with the standards set forth in § 1622 of the Public Health Code, MCL 333.16221; MSA 14.15(16221). Except for the purpose of assisting in the interpretation of the challenged provisions of the prior law, the application of these new provisions will not be considered in this opinion since their application has been neither argued nor relied on by the parties to this appeal.

       The Medical Practice Act, supra, was repealed and superseded by the Public Health Code, 1978 PA 368, as amended.

       MCL 338.302(2)(ll)(e); MSA 14.662(2)(ll)(e).


source: Caselaw Access Project

author: D. F. Walsh, J.

license: Public Domain

text:
    PEOPLE v THOMPSON
    Docket No. 78-4476.
    Submitted February 21, 1980, at Detroit.
    Decided May 5, 1980.
    Morris Thompson was originally convicted of first-degree criminal sexual conduct. His conviction was reversed by the Court of Appeals, 76 Mich App 705 (1977). He was again tried and convicted of second-degree criminal sexual conduct, Recorder’s Court of Detroit, Patricia J. Boyle, J. At the second trial the defendant’s testimony from the first trial was read to the jury. The defendant did not testify at the second trial. Defendant appeals, alleging that admission of his former testimony was error. Held:

    The defendant’s prior testimony was properly admitted into evidence. There is no indication that the decision to testify in the first trial was not made entirely voluntarily and with the considered assistance of counsel.
    Affirmed.
    Criminal Law — Evidence — Former Testimony.
    A defendant’s testimony at a former trial is admissible in evidence against him in later proceedings involving the same offense where there is no indication that the defendant’s decision to testify at the first trial was not made entirely voluntarily and with the considered assistance of counsel.
    Reference for Points in Headnote
    [1] 21 Am Jur 2d, Criminal Law §§ 358, 367.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.

      Jerrold B. Sherman, for defendant on appeal.

      Before: Bashara, P.J., and T. M. Burns and D. F. Walsh, JJ.
   D. F. Walsh, J.

Defendant’s September 23, 1975, conviction of criminal sexual conduct in the first degree, MCL 750.520b(l)(f); MSA 28.788(2)(l)(f), was reversed by this Court because of the trial court’s refusal to instruct the jury on necessarily included lesser offenses. People v Thompson, 76 Mich App 705; 257 NW2d 268 (1977), lv den 402 Mich 829 (1977). On retrial, defendant was convicted of criminal sexual conduct in the second degree. MCL 750.520c(l)(f); MSA 28.788(3)(l)(f). On July 21, 1978, he was sentenced to a prison term of 10 to 15 years.

The record indicates that, at the close of the prosecution’s case in chief in defendant’s first trial, the trial court advised that the jury would be instructed only on criminal sexual conduct in the first degree and not on second, third and fourth-degree criminal sexual conduct. Defendant then took the stand and testified that he had seen the complaining witness from his car as she was walking down the street and she accepted his offer of a ride, that, at some point, defendant stopped the car and the two got into the back seat, and that they started to have sexual relations but there was no penetration. According to defendant’s testimony, the complainant was a willing participant who became angry when defendant was not able to have intercourse with her. The jury found defendant guilty of first-degree criminal sexual conduct.

At defendant’s second trial, after all prosecution witnesses had testified, the prosecutor asked the trial court to rule on the admissibility of the testimony given by defendant at his first trial. Defense counsel argued that defendant was going to testify and that introduction of the testimony as substantive evidence would be error. The court ruled that the former testimony was admissible in the prosecution’s case in chief. After the testimony was read to the jury, the prosecution and defense rested. Defendant did not testify. He was convicted of second-degree criminal sexual conduct.

In Harrison v United States, 392 US 219; 88 S Ct 2008; 20 L Ed 2d 1047 (1968), the United States Supreme Court reversed the defendant’s murder conviction because, at the defendant’s trial, the prosecution had read to the jury the testimony the defendant had given at his former trial. His former murder conviction had been reversed because of the erroneous admission into evidence of confessions illegally obtained. The defendant had testified at the former trial only after the government had improperly introduced into evidence his three wrongfully obtained confessions. In his opening statement, at the former trial, the defense counsel had announced that the defendant would not testify. Finding that the government’s illegal action had induced the defendant’s testimony, the Court, applying the "fruit of the poisonous tree” doctrine, reversed the murder conviction:

"The question is not whether the petitioner made a knowing decision to testify [at his former trial], but why. If he did so in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible.” 392 US at 223.

In so ruling, the Supreme Court clearly indicated its intention to carve out a narrow exception to the general rule of admissibility of a defendant’s former testimony:

"In this case we need not and do not question the general evidentiary rule that a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings. A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.” 392 US at 22. (Footnote omitted.)

Under the circumstances of this case appellant’s reliance on Harrison is misplaced. We have reviewed the record and are fully persuaded that defendant’s decision to testify at his first trial was motivated by the strength of the lawful evidence which had been presented by the prosecution rather than by the court’s refusal to instruct on lesser offenses.

The complaining witness testified to being beaten repeatedly by defendant, dragged into his car, forced to have sexual intercourse and oral sex, and pushed out of the car. She was able to get the car’s license number before running for help. Laboratory analysis revealed the presence of sperm on her clothing. The side of her head was swollen and there were scrapes on her neck.

This evidence was sufficient to support a conviction of criminal sexual conduct in the first degree. Defendant was faced with the alternative of allowing the jury to make its determination as to his guilt or innocence having heard only the complainant’s version of the incident or to testify himself.

We are not persuaded that defendant’s testimony was "impelled” in any way. There is no suggestion in the record that defendant’s decision to testify at his first trial was not made entirely voluntarily and with the considered assistance of counsel. There was, therefore, no error in admission of the evidence at the second trial. See People vHunley, 63 Mich App 97, 100-101; 234 NW2d 169 (1975).

Affirmed._

       At the close of the prosecution’s proofs, defense counsel asked that the case be submitted to the jury solely on a charge of fourth-degree criminal sexual conduct. The court responded:
      "So that you know ultimately how this case is going to be submitted to the jury, it will be submitted to the jury solely on the issue of criminal sexual conduct in the first degree.”
      After the jury had been instructed, the trial court solicited counsels’ comments. Defense counsel made the following remark:
      "I’d like the record to show that I requested a lesser and included offense of second, third and fourth, first of all, at the time of the conclusion of the People’s case.”
      The court responded:
      "Yes, the record should indicate that both you and the Assistant Prosecutor approached the bench prior to my charging the jury and you did request of me charges on the lesser and included offenses, which I told you I was not going to submit, and which I indicated to you at the time of the motions, at the end of the People’s case, that the case would be submitted to the jury solely on the question of Criminal Sexual Conduct in the First Degree. Your exceptions and objections to the Court’s charge in that I didn’t charge on the lesser offenses of Criminal Sexual Conduct in the Second, Third and Fourth Degree are duly noted on the record.”

       Also see MRE 801(d)(2)(A).

       "The remaining question is whether the petitioner’s trial testimony was in fact impelled by the prosecution’s wrongful use of his illegally obtained confessions.” Harrison v United States, supra, 392 US at 224.


author: M. J. Kelly, J. M. F. Cavanagh, P.J.

text:
    PEOPLE v FOX
    Docket No. 44258.
    Submitted October 15, 1979, at Detroit.
    Decided May 5, 1980.
    Leave to appeal applied for.
    Defendant, Roscoe T. Fox, was convicted, on his plea of guilty, of assault with intent to rob, being armed, in Recorder’s Court of Detroit. Defendant had an attorney appointed to represent him. At a preliminary examination the examining magistrate dismissed defendant’s attorney, appointed a new one, held the preliminary hearing and bound the defendant over for trial. Defendant appealed his conviction and the Court of Appeals affirmed. Defendant moved the trial court to vacate his conviction, based upon the discharge of his original attorney, which was at first denied but, upon reconsideration, granted, Justin C. Ravitz, J. The people appeal by leave granted. Held:

    An examining magistrate’s improper dismissal of a defendant’s court-appointed attorney does not mandate a new trial where, as here, the defendant’s subsequent conviction was fully appealed and affirmed, the issue of improper dismissal was not raised on appeal and the defendant failed to show that he was prejudiced by the magistrate’s actions.
    Reversed.
    M. F. Cavanagh, P.J., dissented. He would hold that the improper dismissal of a defendant’s attorney mandates reversal regardless of a showing of prejudice. He would affirm.
    Opinion of the Court
    1. Criminal Law — Appeal — New Trial — Judicial Misconduct — Assistance of Counsel.
    A court improperly granted a belated motion for a new trial on the ground that an examining magistrate had improperly dismissed a defendant’s court-appointed attorney where the defendant’s conviction was fully appealed and affirmed, where the issue was not raised on appeal, where the judge granting the motion specifically found that defendant was not denied the effective assistance of counsel and where the defendant failed to demonstrate that he was prejudiced by the magistrate’s actions.

      References for Points in Headnotes
    [1, 2] 5 Am Jur 2d, Appeal and Error §§ 654, 655, 778.
    21 Am Jur 2d, Criminal Law §§ 318, 319.
    58 Am Jur 2d, New Trial §§ 161, 187 et seq.

    [2] 21 Am Jur 2d, Criminal Law §§ 318, 319.
    58 Am Jur 2d, New Trial §§ 161, 187 et seq.

      Dissent by M. F. Cavanagh, P. J.
    2. Criminal Law — Appeal — New Trial — Judicial Misconduct — Assistance of Counsel.

      An examining magistrate improperly and impermissibly interfered with a defendant’s constitutional right to counsel by summarily dismissing the defendant’s counsel without good cause; such a defendant is entitled to a new trial regardless of an affirmative showing of prejudice because the right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy C. Scallen, Assistant Prosecuting Attorney, for the people.

      Lawrence Baron, for defendant.
    Amici Curiae:

      Richard B. Ginsberg, Assistant State Appellate Defender.
    American Civil Liberties Union of Michigan (by Edward M. Wise, General Counsel).
    Before: M. F. Cavanagh, P.J., and M. J. Kelly and D. S. DeWitt, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   M. J. Kelly, J.

Defendant was charged with assault with intent to rob, being armed, contrary to MCL 750.89; MSA 28.284. A preliminary examination was held on this matter September 26, 1975. Following a heated exchange between the examining magistrate and defendant’s appointed attorney, Frank Eaman, the court dismissed Mr. Eaman from the case. He exited with an assurance that he was on his way to the Court of Appeals. He never arrived. New counsel was appointed for the defendant and he was bound over for trial following the preliminary examination.

Thereafter, on November 12, 1975, the defendant entered a plea of guilty before Judge Kadela of the Detroit Recorder’s Court, and on November 14, 1975, defendant was sentenced (in accordance with a sentence agreement) to 5 to 15 years in prison. Appeal was taken of right and a panel of this Court affirmed the conviction on February 9, 1977.

Subsequently the defendant moved in pro per to vacate his plea and sentence based on the discharge of his original attorney, Frank Eaman. This motion was denied by Recorder’s Court Judge Justin C. Ravitz. The defendant next moved in pro per to withdraw his guilty plea contending that the plea had been involuntary and that he had been denied effective assistance of counsel. Judge Ravitz found these contentions to be without merit and denied this motion. Finally, defendant obtained appointed counsel and moved for a reconsideration of the original motion. On October 12, 1978, Judge Ravitz ordered a new trial based on the examining magistrate’s dismissal of defendant’s attorney at the preliminary examination. It is from this order that the prosecutor now brings this delayed appeal.

The prosecutor argues that the court’s grant of a new trial constituted an abuse of discretion. We agree.

The court held that a new trial was required because of the examining magistrate’s summary dismissal of the defendant’s court-appointed attorney. The court characterized the magistrate’s action as constituting an impermissible interference with the attorney-client relationship and defendant’s right to counsel.

Defendant’s original attorney was dismissed at the preliminary examination under the following circumstances. Defendant’s attorney contended that, when the defendant. was brought in the courtroom for this proceeding, a police officer on the case signaled to an identification witness, as if to verify defendant’s presence. Mr. Eaman sought to raise the issue of an improper identification before the examining magistrate, Judge Roberson. The magistrate, however, abruptly terminated the attorney’s argument and the following colloquy ensued:

"Mr. Eaman: There was a suggested identification in this case._
"The Court: Mr. Eaman, I keep telling you there’s a way to do it. Now, sit down. You’re getting on my nerves.
"Mr. Eaman: Your Honor, I have a right to speak for my client.
"The Court: Well, sit down. I’ve allowed you to make your argument. Now sit down.
"Mr. Eaman: I don’t believe I made a sufficient record.
"The Court: Mr. Eaman, you’re out of this case now leave.
"Mr. Eaman: I’d like a stay to appeal, your Honor.
"The Court: Leave.
"Mr. Eaman: Your Honor is withdrawing my Appearance because I’m defending my client?
"The Court: You’re out of the case now. Now Mr. Fox, you go back in. I’ll appoint another attorney to represent you. Mr. Eaman, get out of here. Leave right now.
"Mr. Eaman: I’m on my way now your Honor.
"The Court: Leave right now. Take your papers in your hand and get out of here.
"Mr. Eaman: To the First Federal Building, your Honor.”

While it is well settled that gross incompetence, physical incapacity or contumacious conduct may justify the court’s removal of an attorney (see United States v Dinitz, 538 F2d 1214 (CA 5, 1976), rehearing den 542 F2d 1174 (1976), cert den 429 US 1104; 97 S Ct 1133; 51 L Ed 2d 556 [1977]) the action of the examining magistrate cannot be justified on this record. It appears that the peremptory dismissal of counsel was the result of personal pique and impatience and had the effect of punishing the defense attorney’s attempts to protect his client’s interests. We conclude that Judge Roberson’s actions were unreasonable and deserve censure.

Notwithstanding our conclusion in this regard, we hold the error committed at the preliminary examination did not justify the court’s order of a new trial after full appeal and affirmance.

The standards applied in determining whether a new trial should be granted are set out in MCL 769.26; MSA 28.1096 as follows:

"No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause* it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”

In the instant case the course of the proceedings subsequent to the preliminary examination cured any prejudice occasioned there. A review of the record fails to disclose that the irregularities at the proceeding resulted in a miscarriage of justice.

Following the dismissal of defendant’s original attorney, the court appointed substitute counsel to represent him. This attorney, Brenda Maxwell, pursued the issue of the alleged improper identification raised by Mr. Eaman, and a fully contested adversary hearing on the matter was held before Judge Kadela of the Detroit Recorder’s Court. It should be noted that Mr. Eamon testified at this proceeding concerning those events. On this record it is clear that the dismissal of defendant’s attorney did not inhibit defendant’s ability to raise the identification issue or any other issue at any stage of the proceedings. Thereafter defendant entered a plea of guilty to the charged offense. Judge Ravitz at all times, including in the opinion granting new trial, specifically found that the plea was not coerced but voluntarily and intelligently tendered. Additionally he found that the defendant was not denied effective assistance of counsel.

Under these circumstances we conclude that the magistrate’s actions did not affect the fairness of the court proceeding when viewed as a whole and that the defendant failed to demonstrate that he was prejudiced as required under MCL 769.26; MSA 28.1096. People v Dunn, 380 Mich 693; 158 NW2d 404 (1968), People v Beard, 78 Mich App 636; 261 NW2d 27 (1977).

Further, as this Court has recently reaffirmed, in the absence of prejudice a defendant is precluded from raising errors committed at the preliminary examination unless they are timely asserted. In the instant case defendant’s conviction was properly appealed by competent counsel and was affirmed by this Court on February 9, 1977. Numerous issues were raised at that time, but presumably defendant and his appellate counsel did not regard the error now raised as being serious or of such magnitude as to require reversal. The case of Harling v United States, 387 A2d 1101 (DC App, 1978), referred to in the footnote, had not been decided at the time of the original appeal. No petition for rehearing, delayed or otherwise, was brought in this Court to raise the issue frontally. Instead it was presented to a Recorder’s Court judge different from the trial judge who, although expressly finding no prejudice to defendant, nonetheless granted him a new trial. The failure to raise the issue on appeal waives it. Defendant’s guilty plea was properly taken when he was represented by competent counsel and the raising of this issue two years later in the trial court, after the plea had been affirmed on appeal, was untimely.

Under the circumstances of this case we conclude the trial court abused its discretion and erred in granting defendant a new trial.

The dissent appears to raise a strawman by referring to the defendant’s failure to object at the time Mr. Eaman was dismissed. That is not the basis for our ruling and the trial court was eminently correct in not requiring the then accused to perform like an attorney. The other side of the coin is that the trial court did not assess at all the failure of competent defense counsel before and at the time of plea to raise the issue and competent appellate counsel did not do so either. It is obviously a case of hindsight having remarked the error after the Harling opinion came to the notice of interested parties.

Reversed.

D. S. DeWitt, J., concurred.

M. F. Cavanagh, P.J.

(dissenting). I dissent from the majority opinion but rely upon it for a summary of the factual development of this case. It should be additionally noted that the suggested identification to which defendant’s originally appointed counsel objected occurred when defense counsel thought that he noticed the officer in charge of the case motion to the two prosecution witnesses as if to point out the defendant as he was brought into the courtroom. Defendant Fox had been included in a previous corporeal line-up, but the complaining witness was unable to identify him at that time as the perpetrator of the charged offense. There can be no doubt, then, that defendant’s identification was a crucial issue in this case.

When Judge Ravitz ordered a new trial he offered the following three reasons as the basis for his decision:

"But there’s nothing on this record that begins to hint at a proper basis to put defense counsel summarily out of the case. That’s number one. That’s my finding factually and legally.
"Secondly, I don’t believe that the defendant has to voice an objection, because you just can’t make that the test in my judgment. Because the defendants that might need the help the most, those least capable of voicing objection, would be those mis-treated or abused the worst.
"Thirdly, on the question of prejudice, I indicated for the record, and it should be clear, I don’t see prejudice. But, you often don’t see prejudice. And it’s a part of my holding today that prejudice need not be shown in a situation where an indigent’s right to the originally appointed counsel is trampled upon by a court without good cause.”

The people assert that defendant’s failure to object at the time that his appointed counsel was dismissed should preclude relief. However, as Judge Ravitz notes, it is most likely that the class of defendants most prone to suffer from such mistreatment are those who would typically fail to formally preserve an issue by objecting. At the time of the incident in issue, defendant Fox was 18 years old and had only an eighth grade education. Under the circumstances, it is not difficult for me to perceive why he did not object. Furthermore, given the constitutional dimensions of the issues here involved, a failure to object should be deemed to be legally irrelevant. People v Hoerl, 88 Mich App 693, 696; 278 NW2d 721 (1979).

By summarily dismissing defendant’s counsel without good cause, which point is conceded by all parties, the examining magistrate improperly and impermissibly interfered with defendant’s constitutional right to counsel. "* * * [0]nce counsel is appointed to represent an indigent defendant, * * * the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained.” Harling v United States, 387 A2d 1101, 1106 (DC App, 1978). Because counsel was prevented from continuing his representation of defendant, it is impossible to ascertain how well he would have performed had he been allowed to carry through. Moreover, it is not important that no affirmative showing of prejudice to defendant has been made, since "[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial”. Harling, supra, 1106, citing from Glasser v United States, 315 US 60, 76; 62 S Ct 457; 86 L Ed 680 (1942). It is my concern as well that to overturn the ruling of Judge Ravitz in this matter might well discourage the best possible representation for indigent defendants by court-appointed counsel. I would affirm the decision of the lower court.

       In reaching this conclusion the court primarily relied on the case of Harling v United States, 387 A2d 1101 (DC App, 1978).
      In Harling, the Court of Appeals for the District of Columbia reversed defendant’s conviction holding that the trial court’s arbitrary dismissal of a defendant’s court appointed attorney, over the objections of both the defendant and his attorney, constituted an impermissible interference with the attorney-client relationship and was a denial of defendant’s Sixth Amendment right to counsel. The Court held that under the circumstances a new trial was mandated despite the fact that defendant’s substitute counsel had not been adjudged to be ineffective. We do not disagree with Harling, but find it inapplicable here for two reasons:
      First, in Harling, the defendant specifically objected to the dismissal of his original counsel. The issue was preserved. In the instant case defendant Fox did not object to either the examining magistrate, Judge Roberson or to Judge Kadela about the dismissal of his original attorney. This distinction would not be critical if the matter had been raised on appeal. It was not.
      Secondly, and most importantly, defendant Fox did not raise this issue until two years after voluntarily entering a guilty plea to the charged offense and then only after his conviction had been affirmed by this Court on appeal. No such delay was present in Harling.

       See People v Edmonds, 93 Mich App 129; 285 NW2d 802 (1979).


author: D. C. Riley, P. J.

text:
    BACON v BACON
    Docket No. 44770.
    Submitted April 8, 1980, at Lansing.
    Decided May 5, 1980.
    Plaintiff, Theresa Bacon, petitioned for a dissolution of marriage ' in California. Her husband, Charles B. Bacon, had moved from California to Michigan with their child, Andrew, prior to the filing. The California court exercised jurisdiction in the matter, awarding temporary custody of Andrew to plaintiff. Plaintiff petitioned the Genesee Circuit Court to enforce the California order and defendant petitioned for custody of Andrew. Prior to a hearing on these petitions the California court entered an interlocutory judgment of dissolution, tentatively disposing of all marital issues, including custody. A hearing was held and the Genesee Circuit Court, Donald R. Freeman, J., held that, because the child was a resident of the State of Michigan at the time of filing of the custody petition by defendant, it had concurrent jurisdiction with the California court and granted custody to plaintiff. Plaintiff appeals, claiming that the court should not have exercised jurisdiction over the custody of the child. Held:

    It is improper for a Michigan court to exercise jurisdiction in a custody matter where, at the time of filing, the matter is pending in a court of a foreign jurisdiction and where there is no allegation that the foreign proceeding was improperly initiated, that it had been stayed or that exigent circumstances existed necessitating this state’s protection.
    Reversed and remanded.
    1. Parent and Child — Custody — Jurisdiction — Choice of Jurisdictions — Burden of Proof — Statutes.
    The burden of proving the necessity for exercising jurisdiction in a child custody matter, where at the time of filing the petition a proceeding concerning the custody of the child is pending in the court of another state, rests on the party seeking this state’s intervention; it is for that party to inform our courts of any stay entered by the foreign jurisdiction pending resolution in this state or of any exigent circumstances necessitating this state’s involvement (MCL 600.656[1]; MSA 27A.656[1]).

      References for Points in Headnotes
    [1] 20 Am Jur 2d, Courts § 148.
    24 Am Jur 2d, Divorce and Separation §§ 772-782.
    [2] 24 Am Jur 2d, Divorce and Separation §§ 772-782.

      2. Parent and Child — Custody — Jurisdiction — Choice op Jurisdictions.
    It is improper for a Michigan court to exercise jurisdiction in a custody matter where, at the time of filing, the matter is pending in a court of a foreign jurisdiction and where there is no allegation that the foreign proceeding was improperly initiated, that it had been stayed or that exigent circumstances existed necessitating this state’s protection.

      Fox, Fox, Fitzer & Waterstone, for plaintiff.
    Before: D. C. Riley, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   D. C. Riley, P. J.

Plaintiff appeals from a March 26, 1979, decision of the Genesee County Circuit Court, in which that court concluded that it had jurisdiction over plaintiffs and defendant’s child custody dispute and awarded custody to plaintiff. Plaintiff claims that it was error for the court to assert jurisdiction after the custody issue presumably had been resolved by the Superior Court of California, County of Los Angeles.

The issue raised by plaintiff concerns the scope and effect of the Uniform Child Custody Jurisdiction Act, MCL 600.651 et seq.; MSA 27A.651 et seq. This act was enacted to:

"(a) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.
"(b) Promote cooperation with the courts of other states so that a custody decree or judgment is rendered in that state which can best decide the case in the interest of the child.
"(c) Assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state.
"(d) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.
"(e) Deter abductions and other unilateral removals of children undertaken to obtain custody awards.
"(f) Avoid relitigation of custody decisions of other states in this state insofar as feasible.
"(g) Facilitate the enforcement of custody decrees or judgments of other states.
"(h) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and' those of other states concerned with the same child.
"(i) Make uniform the law of those states which substantially conforms to sections 651 to 673.
"(2) Sections 651 to 673 shall constitute the 'uniform child custody jurisdiction act’ and shall be construed to promote the general purposes stated in this section.” MCL 600.651; MSA 27A.651.

It is clear from the policies set forth in this act that, optimally, jurisdiction should only be asserted by one state. Ames: McDonald v McDonald: Michigan Applies the Uniform Child Custody Jurisdiction Act, 1978 Det Col L Rev 123, 127. MCL 600.656(1); MSA 27A.656(1) provides that even if one state has the right of jurisdiction, normally it should not exercise it "if at the time of filing the petition a proceeding concerning the custody of the child is pending in a court of another state”. Therefore, when another state has legitimately exercised jurisdiction, we begin our inquiry with a presumption against assertion of jurisdiction. The burden of proving the necessity for exercising jurisdiction rests on the party seeking this state’s intervention. It is up to that party to inform our courts of any stay entered by another state pending resolution in this state or of any exigent circumstances necessitating this state’s involvement. See MCL 600.656(1); MSA 27A.656(1).

In the instant case, plaintiff filed for divorce in California on March 3, 1978, and was awarded temporary custody of the minor child. In June of that year, after plaintiff petitioned the Genesee Circuit Court to enforce a temporary custody award by the California court, defendant filed for custody in Michigan. The California matter was still pending, being permanently resolved by that state’s Superior Court on November 27, 1978. Since there were no allegations in this case that the California proceeding was improperly initiated, or that it had been stayed, or that there was some emergency necessitating this state’s protection, the Michigan court’s intervention was improper. The lower court should not have exercised jurisdiction in this case and must be reversed on this basis.

Reversed and remanded for an entry of dismissal order.

No costs, a matter of statutory interpretation being involved.

       "A court of this state shall not exercise its jurisdiction under sections 651 to 673 if at the time of filing the petition a proceeding concerning the custody of the child is pending in a court of another state exercising jurisdiction substantially in conformity with sections 651 to 673, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons or unless temporary action by a court of this state is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.” MCL 600.656(1); MSA 27A.656(1).

       The defendant’s attorney admitted at the hearing held in this case that plaintiff had attempted to notify defendant of the California proceeding as required by that state’s law.

       Prior to exercising jurisdiction, the lower court asserted that it
        had jurisdiction. Jurisdictional analysis is unnecessary in a case where another state has properly assumed jurisdiction unless a stay or emergency circumstances can be demonstrated. Although unnecessary to our result, we note that the lower court wrongly approved any jurisdiction in Michigan.
      Four bases for jurisdiction are recognized by the Child Custody Jurisdiction Act:
      "(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification-decree or judgment if any of the following exist:
      "(a) This state is the home state of the child at the time of commencement of the proceeding or had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state.
      "(b) It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least 1 contestant, have a significant connection with this state and there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.
      "(c) The child is physically present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.
      "(d) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivisions (a), (b), or (c) or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child and it is in the best interest of the child that this court assume jurisdiction.” MCL 600.653(1); MSA 27A.653(1).
      The only conceivable basis for jurisdiction sub judice is (l)(b) which requires significant connections of the parent and the child to the state and substantial evidence about the child to be available in the state. Mere presence in the state is not sufficient, MCL 600.653(2); MSA 27A.653(2), for custody jurisdiction requires maximum rather than minimum contacts with the state. McDonald v McDonald, 74 Mich App 119, 127; 253 NW2d 678 (1977).
      While the defendant-father has established more than mere temporary contact with this state as he is domiciled here, the same cannot be said for the instant child. Contra, Green v Green, 87 Mich App 706, 710-711, fn 1; 276 NW2d 472 (1978). The child’s connection with Michigan is merely the few months that he spent here attending school and living with his father and his aunt. The child was born, adopted and lived in California his entire life except for the few months that he lived in Michigan. Presumably, the majority of his school and health records, as well as his social contacts, remain in that state. Further, California is the only state where the parties and the child ever lived together as a family, McDonald, supra, 129, and it is where the plaintiff-mother has continuously maintained residency. These are the "substantial” and "significant” state connections required by the act, which Michigan can only claim by exaggerating its minimum contacts. We refuse to distort the intent and plain meaning of the Uniform Child Custody Jurisdiction Act to allow this state’s assertion of jurisdiction.


author: D. C. Riley, J.

text:
    PEOPLE v CLABIN
    Docket No. 46582.
    Submitted March 10, 1980, at Lansing.
    Decided May 5, 1980.
    Leave to appeal applied for.
    Allen Clabin was convicted, on his plea of guilty, of possession of a weapon while a prison inmate, Jackson Circuit Court, Charles J. Falahee, J. Defendant appeals, alleging that his conviction is invalid because the statute under which he was convicted, after being struck down as violative of the title-object clause of the Michigan Constitution, was never reenacted when the Legislature enacted a new title to the statute. Held:

    The Legislature may cure its errors through amendment, including the amendment of titles. An amended act need not be reenacted and published in its entirety, as long as it is clear which act the Legislature is amending or referring to. The amendment of the title revived the statute for any future application and the title and statute together form a constitutionally permissible law.
    Affirmed.
    1. Statutes — Titles — Amendment of Titles — Constitutional Law.
    A title of a statute is not a part of the law itself and has no inherent legal effect beyond that of summarizing the law; therefore, the amendment of a title does not unconstitutionally amend the law by reference to the title (Const 1963, art 4, § 25).
    2. Statutes — Amendment of Statutes — Titles.
    The Legislature may cure its errors through amendment, and an amended law is considered valid for any future application; this general rule is equally applicable to the correction of titles of statutes.
    References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes § 95.
    [2] 73 Am Jur 2d, Statutes §§ 109, 343, 347 et seq.

    [3] 73 Am Jur 2d, Statutes § 138.
    Simultaneous repeal and reenactment of all, or part, of legislative act. 77 ALR2d 1270.

      3. Statutes — Amendment of Statutes — Reenactment — Constitutional Law.
    The Legislature need not reenact and publish an amended act in its entirety; as long as it is clear which act the Legislature is referring to, only the affected portions need be reenacted and published.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.

      P. E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
    Before: Mackenzie, P.J., and Bashara and D. C. Riley, JJ.
   D. C. Riley, J.

On March 27, 1979, defendant pled guilty to being an inmate in possession of a weapon, contrary to MCL 800.283; MSA 28.1623. Following conviction, he was sentenced to 3 to 5 years imprisonment to be served consecutively with the sentence he was already serving. Defendant now appeals as of right.

Defendant was convicted under a 1972 amendment to MCL 800.283; MSA 28.1623, which prohibits inmates from possessing weapons. The amendment did not alter the act’s title so it was thereafter struck down by the Supreme Court on June 2, 1977. People v Stanton, 400 Mich 192; 253 NW2d 650 (1977). The Court held that, in the absence of title amendment, the textual addition of inmates to a statute originally aimed at outside suppliers of weapons violates the title-object limitation of the Michigan Constitution. Id., at 195-196. The Legislature acted quickly to remedy this deficiency by enacting 1977 PA 164, effective November 10, 1977. Section 1 provides:

"The title and section 2 of Act No. 17 of the Public Acts of 1909, being section 800.282 of the Compiled Laws of 1970, are amended to read as follows:
TITLE
"An act to prohibit the bringing into prisons of all weapons or other implements which may be used to injure any convict or person or in assisting any convict to escape from punishment, or the selling or furnishing of same to convicts; to prohibit the control of possession by a convict of all weapons or other implements which may be used to injure any convict or person or in assisting any convict to escape from punishment; to prohibit the bringing into prisons of all spirituous or fermented liquors, drugs, medicines, poisons, opium, morphine or any other kind or character of narcotics, or the giving, selling or furnishing of spirituous or fermented liquors, drugs, medicines, poisons, opium, morphine or any other kind or character of narcotics to convicts or paroled prisoners and providing a penalty for the violation hereof.”

Defendant claims that his conviction must be reversed since the section under which he was convicted was never reenacted. He specifically argues that any attempted reenactment violates Const 1963, art 4, § 25, which states that no law can be revised or amended by reference to its title.

We are satisfied with the constitutionality of the method utilized by the Legislature to amend the statute’s title. A statutory title is not considered part of the law itself, having no inherent legal effect beyond that of summarizing the law. Brooks v Hydorn, 76 Mich 273, 280-281; 42 NW 1122 (1889). See Doe v Oettle, 97 Mich App 183; 293 NW2d 760 (1980). Thus, in the instant case, it cannot be said that there was any amendment of the law by reference to the title. There was only an amendment of the title by both reference to and publication of the title. The Legislature’s full statement of the amended title adequately complied with § 25’s requirement of reenactment and publication.

We are also assured of the efficacy of the instant statute. If the Legislature defectively exercises its legislative powers, it may subsequently cure its errors through amendment. The amended laws are considered valid for any future application. See generally The People ex rel Bristol v The Board of Supervisors of Ingham County, 20 Mich 95 (1870), Briggs v Campbell, Wyant & Cannon Foundry Co, 2 Mich App 204, 219; 139 NW2d 336 (1966).

This general rule allowing correction of the law is equally applicable to the correction of titles. "Where the original title is defective, the Legislature has the inherent power to cure the defect by amending the title.” Kriger v South Oakland County Mutual Aid Pact, 49 Mich App 7, 15; 211 NW2d 228 (1973), rev’d on other grounds 399 Mich 835 (1977). The Legislature need not reenact and publish the amended act in its entirety. As long as it is clear which act the Legislature is referring to, only the affected statutory portions need be reenacted and published. See Midland Twp v State Boundary Comm, 401 Mich 641, 662-663; 259 NW2d 326 (1977), Surtman v Secretary of State, 309 Mich 270, 276; 15 NW2d 471 (1944), People v Shuler, 136 Mich 161; 98 NW 986 (1904).

While this method of legislating may seem confusing or appear lazy, it is an acceptable method of updating the law. See Midland Twp, supra. Interested parties should read the multiple documents together so as to constitute a constitutional enactment. Midland Twp, supra. The keystone in all cases is notice. When a portion of a statute is declared ineffectual, it is not immediately erased from the books or from memory. If the Legislature acts promptly to correct the defective section, no uncertainty about the statute’s content can arise. When there is timely action, notice can never become a real issue.

In Kriger, supra, the Supreme Court had earlier voided an act because its title did not indicate the scope of one of its sections, i.e., a violation of the title-object rule. Const 1963, art 4, § 24. The Court of Appeals, in an opinion reversed on other grounds by the Supreme Court, upheld the title amendment subsequently passed by the Legislature to remedy the deficiency.

"In this case, the Legislature in the amendatory act’s title set out its intent to amend the title and certain sections of 1964 PA 170, providing notice to the public and the Legislature, as the rule intends. They proceeded to act in accord with their expressed purpose in the body of the act. Such a legislative procedure conforms to the constitutional mandate of art 4, § 24. While the Court lacks the power to expand or contract legislative titles or provisions, this is precisely the power conferred on the Legislature by the Constitution.” ■
"The title here expressed the purpose and scope of the enactment; to amend the title and certain sections of 1964 PA 170. The enactment was within the purpose and scope expressed in the title. It was proper to expect that the body of the act would reflect the title. Const 1963, art 4, § 24, was not violated.” Kriger, supra, 15.

In the instant case, we believe that the Legislature similarly succeeded in reviving the 1972 amendment through its title amendment in 1977. The two documents when read together form a constitutionally permissible law.

Affirmed.

       "Sec. 3. No weapon or other implement which may be used to injure any convict or person, or in assisting any convict to escape from imprisonment, shall be sold, given away or furnished to any convict in any prison, or any building appurtenant thereto, or on the land granted to or owned or leased by the state for the use and benefit of the prisoners; nor shall any weapon or other implement which may be used to injure any convict or person, or in assisting any convict to escape from imprisonment, be brought into any prison or any building appurtenant thereto, or onto the land granted to or owned or leased by the state for the use and benefit of the prisoners; nor shall any weapon or other implement, which may be used to injure any convict or person, or in assisting any convict to escape from imprisonment, be sold, given away, or furnished, either directly or indirectly, to any convict either in or anywhere outside of the prison, or be disposed of in such a manner, or in such a place that it may be secured by any convict in the prison. A convict without authorization, shall not have on his person or under his control or in his possession any weapon or other implement which may be used to injure any convict or other person, or to assist any convict to escape from imprisonment.” MCL 800.283; MSA 28.1623. (Emphasis added to amended portion.)

       In addition to the title amendment, the Legislature added a section on regulation of intra-prison narcotics and liquor.


author: Per Curiam.

text:
    WALKER v CAHALAN
    Docket No. 78-654.
    Submitted February 6, 1980, at Detroit.
    Decided May 6, 1980.
    Leave to appeal applied for.
    Lee Dell Walker brought in circuit court an action for defamation against William Cahalan, the Wayne County prosecutor, Pete Waldmeir, a newspaper columnist, and The Detroit News. This action arose out of a letter written by defendant Cahalan in 1974 and addressed to the chairman of the Committee on Appropriations of the Michigan House of Representatives, which was then considering a bill to appropriate $25,000 to partially reimburse Walker for the time he spent in prison. The letter recounted the facts surrounding the 1954 murder of a grocery store owner, the nature of Walker’s confession to that murder, and the history of the legal proceeding from Walker’s conviction by a jury of first-degree murder through the numerous appeals which were affirmed, the eventual granting of a new trial, and the decision by the prosecutor to nolle prosequi the case because of the relocation of the witnesses and the destruction of evidence which had occurred in the intervening 18 years. The letter concluded that any fair-minded person could reach no conclusion other than that Walker murdered the grocery store owner. A copy of this letter was sent by defendant Cahalan to defendant Waldmeir, who incorporated the contents of that letter in his column published by defendant The Detroit News. Following removal of this cause to the Federal court system for consideration of plaintiffs count relative to the violation of his civil rights, which resulted in summary judgment in favor of all defendants on that count, and upon the return of the cause to Wayne Circuit Court, defendant Cahalan moved for summary judgment in circuit court, averring by affidavit that he bore no malice towards Walker and that he believed the statements in the letter to be true. The Wayne Circuit Court, Theodore R. Bohn, J., granted defendant Cahalan’s motion for summary judgment, finding that Walker failed to state a claim upon which relief can be granted. Walker appealed, During the pendency of this appeal, Lee Dell Walker died, and Sharon Walker, as personal representative of the estate of Lee Dell Walker, was, by stipulation of the parties, substituted as plaintiff-appellant in the matter. Held:

      References for Points in Headnotes
    [1] 61 Am Jur 2d, Pleading §§ 71 et seq., 229.
    73 Am Jur 2d, Summary Judgment § 27.
    [2] 73 Am Jur 2d, Summary Judgment § 27.
    [3] 63 Am Jut 2d, Public Officers and Employees § 287 et seq.

    [4] 63 Am Jur 2d, Public Officers and Employees § 290.
    50 Am Jur 2d, Libel and Slander §§ 195 et seq., 224.

    [5] 73 Am Jur 2d, Summary Judgment §§ 22, 23.

      1. A motion for summary judgment based upon the failure to state a claim upon which relief can be granted tests the legal sufficiency of the pleadings. A motion for summary judgment based upon the ground that there is no genuine issue as to any material fact tests the factual support of a claim. A motion for summary judgment brought under the subsection of the court rules dealing with the failure to state a claim but which seeks to test the sufficiency of the facts will be treated as having been brought under the subsection of the rule concerning the absence of any genuine issue as to any material fact, if it is determined that neither party was misled by the failure to cite the proper subsection of the court rules.
    2. A motion for summary judgment based upon the absence of any genuine issue as to any material fact may be granted only where it would be impossible for the asserted claim to be established by evidence at trial.
    3. Defendant Cahalan, acting in his official capacity as prosecutor, does not have absolute immunity from tort liability, rather, he has only a qualified privilege. Having only a qualified privilege, defendant Cahalan possessed a conditional right to publish otherwise defamatory remarks. That qualified privilege could be overcome by a showing of actual malice by proof that the defamatory statement was made with knowledge that the statement was false or with reckless disregard of whether it was false or not.
    4. Since plaintiff failed to offer any proof of actual malice in response to the affidavit of defendant Cahalan which averred that he had no actual malice, the motion for summary judgment was properly granted, not on the basis stated by the trial court, but rather, on the basis that there was no genuine issue as to any material fact.
    Affirmed.

      1. Motions — Summary Judgment — Cause of Action — Genuine Issue of Material Fact — Pleadings — Prejudice — Court Rules.
    A motion for summary judgment based on the failure to state a claim upon which relief can be granted tests only the legal sufficiency of the pleadings, whereas a motion for summary judgment based on the ground that there is no genuine issue as to any fact tests the factual support of a claim; a motion brought under the subsection of the court rules concerning a failure to state a claim but which encompasses a testing of the sufficiency of the facts will be treated as having been brought under the subsection of the court rules concerning a failure to sufficiently plead facts necessary to warrant relief, if neither party was misled by the failure to cite the proper subsection of the court rules (GCR 1963, 117.2[1]; 117.2[3]).
    2. Motions — Summary Judgment — Genuine Issue of Material Fact — Court Rules.
    A motion made pursuant to the court rule providing for summary judgment where there is no genuine issue as to any material fact may be granted only where it would be impossible for the asserted claim to be supported by evidence at trial (GCR 1963, 117.2[3]).
    3. Torts — Governmental Immunity — High Executive Officials — Discretionary Matters — Official Duties — Qualified Privilege.
    High level executive governmental officials acting in discretionary matters in the course of their official duties do not have absolute immunity from tort liability, rather, such officials have no more than a qualified privilege.
    4. Libel and Slander — Qualified Privilege — Actual Malice — Knowledge of Falsity.
    One having a qualified privilege possesses a conditional right to publish otherwise defamatory remarks; however, a showing of actual malice by proof that the defamatory statement was made with knowledge that the statement was false or with reckless disregard of whether it was false or not will overcome that qualified privilege.
    5. Judgment — Summary Judgment — Libel and Slander — Genuine Issue of Material Fact — Affidavits — Court Rules.
    Summary judgment on the basis that there is no genuine question of material fact is properly granted where a plaintiff, in an action for defamation arising out of the publication of a prosecutor’s statement relative to the history of the plaintiffs criminal conviction and appeals and the prosecutor’s belief in the propriety of that conviction and the various affirmances on appeal of that conviction, fails to proffer any evidence of actual malice by the prosecutor in the making of that statement in response to an affidavit submitted by the prosecutor to the effect that the prosecutor bore no actual malice toward the plaintiff and believed the statements made to be true (GCR 1963, 117.2[3]).

      Peter R. Barbara & Associates, P.C. (by Peter R. Barbara and Frank G. Becker), for plaintiff.

      William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Rheo C. Marchand and Maura D. Corrigan, Assistants Prosecuting Attorney, for defendant.
    Before: N. J. Kaufman, P.J., and D. E. Holbrook, Jr., and R. M. Maher, JJ.
   Per Curiam.

Plaintiff appeals from a summary judgment entered in defendant Cahalan’s favor in plaintiffs defamation action. Plaintiff alleged defendant Cahalan defamed him in a September 19, 1974, letter defendant Cahalan addressed to William R. Copeland, Chairman of the House Committee on Appropriations. At the time, that committee was considering Senate Bill No. 1050 which would have authorized an appropriation of $25,000 to partially reimburse plaintiff for the time he spent in state prison "due to a mistake in identity and false testimony”. Defendant Cahalan sent copies of this letter to the media and they, in turn, related its substance in various articles. It is the dissemination of this letter to the news media and public at large which plaintiff claims to be defamatory.

To better assess the substance of the instant dispute, we must briefly trace the path this litigation has taken through our court system.

On February 17, 1954, a grocer named John Drousiotis was shot during a holdup of his corner grocery store at 6657 Roosevelt in the City of Detroit. The holdup and murder were perpetrated by two men, both of whom escaped from the store after the shooting. The grocer’s wife and a young clerk were eyewitnesses to the murder of Drousiotis.

Several weeks later, on March 26, 1954, an attempted street holdup was reported to the Detroit police. The eyewitness description of the escape vehicle led to plaintiffs car. On March 27, 1954, plaintiff was arrested and his car impounded. When the police raised the hood of plaintiff’s car to check the registration number, they discovered a .32-caliber revolver wrapped in a blue cloth stuffed over the windshield wiper mechanism. The gun was later identified as the weapon used in the fatal shooting of Drousiotis.

On March 31, 1954, plaintiff confessed to the murder of John Drousiotis in the attempted holdup of his grocery store. This confession was admitted into evidence against the plaintiff at the trial upon that cause held in Detroit Recorder’s Court. On June 28, 1954, plaintiff was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548, and, on July 12, 1954, he was sentenced to life imprisonment.

A long series of untimely post-conviction appeals followed plaintiffs trial. On September 21, 1961, plaintiffs delayed motion for a new trial attacking the voluntariness of his confession was denied by the trial court. The Michigan Supreme Court affirmed on December 2, 1963, finding that there was no violation of plaintiffs constitutional rights that would render his confession inadmissible as a matter of law. See People v Walker, 371 Mich 599; 124 NW2d 761 (1963). This case again appeared before the Michigan Supreme Court in April, 1964, following the publication of the United States Supreme Court decision in Jackson v Denno, 378 US 368; 84 S Ct 1774; 12 L Ed 2d 908 (1964), and the matter was remanded to the trial court for the purpose of making a determination upon a separate record as to the voluntariness of the confession. See People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

Accordingly, a seven-day evidentiary hearing was held. The prosecution, upon whom devolved the burden of proof to show that the confession was voluntary, produced 23 witnesses. As a result, the trial court concluded that plaintiffs confession was voluntarily given. Plaintiff appealed, and this Court affirmed the trial court’s conclusion. See People v Walker, 6 Mich App 600; 149 NW2d 912 (1967). Thereafter, leave to appeal was denied by the Michigan Supreme Court by its order dated October 4, 1967. See 379 Mich 781 (1967). The United States Supreme Court denied certiorari. See 393 US 1028; 89 S Ct 637; 21 L Ed 2d 572 (1969).

In March, 1972, plaintiff filed a motion for leave to file a delayed motion for a new trial in the trial court. On May 15, 1972, the trial court granted both plaintiffs motion for leave to file a motion for new trial and his motion for new trial. The prosecution thereupon filed a complaint for superintending control, which this Court denied on September 29, 1972.

On December 11, 1972, the prosecution filed a petition for nolle prosequi, setting forth as its reasons for not proceeding with retrial as: the destruction of evidence, the relocation of witnesses, the changes in the controlling law concerning the admissibility of confessions, and, generally, the nearly impossible task of persuasively presenting in court a case that is over 18 years old. On December 12, 1972, an order of nolle prosequi was entered by the trial court.

In December, 1973, a bill was introduced in the Michigan Senate for the purpose of appropriating $25,000 in State of Michigan funds to compensate plaintiff "solely out of humanitarian consideration for the wrong done Lee Dell Walker by the citizens of the State”. The bill was passed by the Michigan Senate on July 8, 1974, and was then referred to the House Appropriations Committee. On September 19, 1974, defendant Cahalan sent a letter to the members of the House Committee on Appropriations as well as to members of the news media. It is the dissemination of this letter to the news media and public at large which lies at the basis of plaintiff’s defamation action.

In defendant Cahalan’s letter, sent nearly one year following the nolle prosequi order, he stated, in pertinent part: "No wrong was done to Lee Dell Walker. There was no mistake in identity. There was no false testimony. Lee Dell Walker was justly convicted of a crime that he committed — the murder of John Drousiotis”. Defendant Cahalan also stated that: "In effect, Judge Evans reversed the rulings of another Recorder’s Court judge, the Court of Appeals, the Michigan Supreme Court and the United States Supreme Court. His opinion is contrary to the law as it existed at the time of the trial and as it exists now.” Defendant Cahalan further stated: "Lee Dell Walker murdered John Drousiotis. There is no other conclusion that can be reached by any fair-minded person who reviews the evidence in this case.” The letter concluded with the following: "The lesson learned is that if a criminal tries long enough and hard enough and goes through enough judges, sooner or later he wil find one sympathetic to his cause. If Lee Dell Walker is to be rewarded with $25,000, give it to him for his persistence. Do not commit the final perversion of stating that a guilty man is innocent.”

On September 26, 1974, after defendant Cahalan had sent him a copy of the letter, Detroit News columnist Pete Waldmeir wrote a column which directly incorporated Cahalan’s letter. In addition, defendant Cahalan’s letter was reported in the Detroit Free Press. On January 22, 1975, plaintiff filed a complaint in the Wayne County Circuit Court against William L. Cahalan, Pete Waldmeir and The Detroit News. On February 26, 1975, plaintiff filed a first amended complaint by right alleging eight counts against all defendants, to-wit: defamation, invasion of privacy, state constitutional grounds, and deprivation of civil rights under the Federal civil rights statute.

On March 4, 1975, defendants removed the action to the United States District Court for the Eastern District of Michigan for a consideration of plaintiff’s civil rights claims. In that forum, following a series of motions, plaintiff’s case was dismissed in total as to all counts and all defendants. In granting a summary judgment to defendant Cahalan, the District Court found that, in writing this letter and publishing it, the prosecutor-defendant was performing a quasi-judicial function and was thereby acting within the absolute immunity of his office.

On October 3, 1975, plaintiff filed an appeal of this dismissal to the United States Court of Appeals for the Sixth Circuit. In Walker v Cahalan, 542 F2d 681 (CA 6, 1976), the court affirmed the Federal District Court as to the Federal counts, but reversed the summary judgment as to the prosecutor’s liability under the state charges and remanded for a determination of the absence or presence of malice.

An application for a writ of certiorari was filed by defendant Cahalan and denied on April 20, 1977. See 430 US 966; 97 S Ct 1647; 52 L Ed 2d 357 (1977). Thereafter, a motion to remand the matter to the state courts was filed by the plaintiff. After a hearing, the United States District Court entered an order dated June 9, 1977, returning the present cause of action to Wayne County Circuit Court.

The Wayne County Circuit Court granted summary judgment to defendant Cahalan, finding that, in writing and publishing the letter, he was acting within the scope of his official duties, and was, therefore, absolutely privileged. Plaintiff now appeals as of right from this determination, arguing that, on the facts of this case, defendant had, at most, a qualified privilege, and that, since plaintiff’s complaint contained averments of malice sufficient to show defendant abused such privilege by publication of the letter, summary judgment was inappropriate.

It is unclear whether defendant’s summary judgment motion was brought solely under GCR 1963, 117.2(1), or encompassed 117.2(3) as well. This makes our review on appeal much more difficult. See Bashara, The Illusive Summary Judgment Rule: Sifting Through the Maze, 1976 Det Col L Rev, 397, 400, and Partrich v Muscat, 84 Mich App 724, 728-729; 270 NW2d 506 (1978). A motion for summary judgment pursuant to 117.2(1) tests only the legal, not the factual, sufficiency of the pleadings, Grasser v Fleming, 74 Mich App 338, 342; 253 NW2d 757 (1977), whereas a motion brought under 117.2(3) is designed to test whether there is factual support for a claim. Smith v Woronoff, 75 Mich App 24, 28; 254 NW2d 637 (1977). In Todd v Biglow, 51 Mich App 346, 349-350; 214 NW2d 733 (1974), this Court held that when a motion for summary judgment is brought under 117.2(1) when it is really testing the sufficiency of the facts, the motion should proceed on the basis of 117.2(3) as long as neither party is misled. We find this to have been the case herein. Accordingly, we will review plaintiff’s claims under 117.2(3).

Before a summary judgment may properly be granted under this sub-section, it must be impossible for the claim asserted to be supported by evidence at trial. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). We must therefore consider whether the plaintiff’s claim could be supported by evidence at trial.

We find that the trial court reached the right result, albeit for the wrong reason. Michigan case law does not afford absolute immunity from tort liability to a high level executive official acting in discretionary matters in the course of his official duties. Timmis v Bennett, 352 Mich 355, 362; 89 NW2d 748 (1958), Tocco v Piersante, 69 Mich App 616, 627-628; 245 NW2d 356 (1976). Such an official is entitled to no more than a qualified privilege, Tocco, supra, 635, Raymond v Croll, 233 Mich 268; 206 NW 556 (1925).

The instant defendant was found to have such a qualified privilege by the United States Court of Appeals, supra. One having a qualified privilege possesses a conditional right to publish otherwise defamatory remarks because the defendant is advancing some interest of social importance. Prosser, Torts (4th ed), § 115, pp 786-787. Where a qualified privilege exists, plaintiff, in order to recover, must affirmatively prove actual malice on the part of the defendant. Lawrence v Fox, 357 Mich 134; 97 NW2d 719 (1959), Peisner v Detroit Free Press, Inc, 82 Mich App 153, 163-164; 266 NW2d 693 (1978). New York Times Co v Sullivan, 376 US 254, 279-280; 84 S Ct 710; 11 L Ed 2d 686; 95 ALR2d 1412 (1964), held that actual malice is established by proof that the defamatory statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not”.

The central question then becomes whether plaintiff presented sufficient factual allegations of actual malice on the part of the defendant, i.e., did plaintiff affirmatively establish that. defendant’s statement was made with knowledge that it was false or in reckless disregard of the truth. We have extensively reviewed the materials submitted and found that the only "evidence” plaintiff proffered in opposition to defendant’s summary judgment motion consisted of the bare-bones allegations presented in the original complaint. Plaintiff did not present one iota of evidentiary support by way of affidavits or depositions on the issue of actual malice.

After the Sixth Circuit Court of Appeals remanded this case to allow the plaintiff to show actual malice, defendant moved for a summary judgment and averred by affidavit that he bore no actual malice towards the plaintiff and believed the statements he made were true. It is noteworthy that plaintiff filed no counter-affidavit averring that the defendant had knowledge of the falsity of his statements or acted in reckless disregard of the truth. In Zimmerman v Stahlin, 374 Mich 93, 96; 130 NW2d 915 (1964), the Supreme Court stated:

"A defendant’s motion for summary judgment, supported by affidavit that the plaintiffs case is a sham and that there are no facts to support the latter’s claims, requires plaintiff to submit to the court, by affidavit, deposition, or other proof, a showing of the existence of issues of facts on the merits of the case, failing which, plaintiffs case must fall and defendant is entitled to summary judgment in his favor.”

Accord: Durant v Stahlin, 375 Mich 628, 638-639, 655-656; 135 NW2d 392 (1965).

In view of the foregoing, we do not find that plaintiff came forward with sufficient evidence to establish the existence of a genuine issue of material fact so as to survive defendant’s summary judgment motion. See Rizzo v Kretschmer, supra, 372, and Bob v Holmes, 78 Mich App 205, 211-212; 259 NW2d 427 (1977).

We can readily understand plaintiffs difficulty in presenting such evidence. Defendant’s statement primarily consisted of a recitation of matters of court record. For the most part, defendant traced plaintiff’s criminal case through the court system and indicated the various courts that affirmed plaintiff’s criminal conviction. We find nothing inherently malicious about this practice. Moreover, in the remaining portions of his letter, defendant aligned himself with these various courts and concluded that, since plaintiff had been adjudged guilty, he should not be given the appropriation. On these facts, we fail to see how the trial court might have determined that defendant acted with knowledge of the falsity or reckless disregard for the truth in making these comments. Since plaintiff has not affirmatively shown the existence of a genuine issue of material fact on this question, we affirm the trial court’s conclusion.

Affirmed.

       This action was commenced in circuit court by Lee Dell Walker. Subsequent to the filing of this appeal, Lee Dell Walker died. By stipulation of the parties, Sharon Walker, personal representative of the estate of Lee Dell Walker, was substituted as plaintiff-appellant. The term “plaintiff” when used in this opinion will refer to the original plaintiff, Lee Dell Walker, rather than the present plaintiff, the personal representative of his estate.

       The recent Supreme Court case of Steadman v Lapensohn, 408 Mich 50; 280 NW2d 580 (1980), can be distinguished in that, in that case, the plaintiffs claimed that a number of the published statements were false and supported this claim with deposition testimony and affidavits. In the instant case, however, plaintiff made no such claim nor proffered any such support.