author: Bashara, J.

text:
    SEATON v STATE FARM LIFE INSURANCE COMPANY
    Docket No. 44849.
    Submitted May 12, 1980, at Lansing.
    Decided August 27, 1980.
    Leave to appeal applied for.
    Cheryl Seaton brought suit against State Farm Life Insurance Company to recover life insurance proceeds, which action resulted in a verdict for the defendant which was reversed on appeal and remanded for a new trial, 75 Mich App 252 (1977). The second trial resulted in a verdict for the plaintiff, Ingham Circuit Court, James R. Giddings, J. Defendant appeals, alleging that the trial court erred in allowing the plaintiff to reassert the physician-patient privilege in the second trial, after waiving it in the first, and in preventing the defendant from commenting on the plaintiff’s assertion of the privilege. Held:

    1. The trial court did not err in permitting the taking and reading into the record of the deposition of a doctor who had regularly treated plaintiff’s husband only as to matters not within the scope of the physician-patient privilege, even though the plaintiff had waived the privilege during the first trial of the same issues.
    2. The trial court erred in preventing the defendant from commenting on the plaintiff’s assertion of the physician-patient privilege, but the error was harmless since the jury was aware of the existence of the attending physician, and defense counsel implied that this physician informed plaintiff’s deceased husband of the nature of his condition.
    Affirmed.
    1. Evidence — Physicians and Surgeons — Physician-Patient Privilege — Statutes.
    The statutory physician-patient privilege may be reasserted by a party in a second trial where it deals with the same issue as raised in the first trial, although the party asserting the privilege waived it during the first trial (MCL 600.2157; MSA 27A.2157).

      References for Points in Headnotes
    [1, 3] 81 Am Jur 2d, Witnesses § 281.
    [2] 81 Am Jur 2d, Witnesses § 277.
    [4, 5] 81 Am Jur 2d, Witnesses § 269.
    [6] 75 Am Jur 2d, Trial § 248.

      2. Evidence — Physicians and Surgeons — Physician-Patient Privilege — Introduction of Evidence.
    A party asserting the physician-patient privilege has the right to control the introduction of the privileged information into evidence, even where the information has been divulged earlier.
    3. Evidence — Physicians and Surgeons — Physician-Patient Privilege — Publication.
    Publication of confidential information by a party does not waive the privilege attached to the relation of a physician and patient at a subsequent trial.
    4. Evidence — Physicians and Surgeons — Physician-Patient Privilege — Waiver.
    The signing of a waiver of the physician-patient privilege by a party when applying for a life insurance policy does not waive the privilege at a subsequent trial.
    5. Evidence — Physicians and Surgeons — Physician-Patient Privilege — Contractual Waiver.
    A contractual waiver of the physician-patient privilege contained in an application for life insurance is against public policy and void, and the testimony of attending physicians as to all knowledge obtained by them within the privileged areas is inadmissible.
    6. Evidence — Physicians and Surgeons — Physician-Patient Privilege — Error.
    Reasonable comment by an adverse party on the invocation by his opponent of the physician-patient privilege is permitted where its use is to gain strategic advantage over an opponent and accomplishes nothing pertinent to the purpose for which it was created, and foreclosure of such comment constitutes error.

      H. Eugene Bennett, for plaintiff.

      Fraser, Trebilcock, Davis & Foster, P.C. (by Everette R. Trebilcock and Robert W. Townsend), for defendant.

      Before: D. F. Walsh, P.J., and Bashara and K. B. Glaser, JJ.

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

   Bashara, J.

This Court previously reversed and remanded for a new trial defendant’s jury verdict of no cause of action in plaintiffs suit to recover life insurance proceeds. Seaton v State Farm Life Ins Co, 75 Mich App 252; 254 NW2d 858 (1977). While the facts of the instant case are adequately set forth in our previous opinion, we note that, at retrial, the lower court, upon plaintiff’s motion, limited Dr. Collins’ testimony to those matters not privileged under MCL 600.2157; MSA 27A.2157. Therefore, Dr. Collins’ statement that he advised plaintiff’s husband of his cancerous condition in 1968 was not admitted at retrial. In addition, defendant was precluded from commenting upon plaintiffs assertion of the physician-patient privilege. At the close of the second trial, the jury was instructed, inter alia, on damages for mental anguish and returned a verdict of $28,000 for plaintiff. Defendant appeals as of right.

Defendant raises several issues for this Court’s consideration, only two of which merit discussion. First, did the trial court err in permitting the deposition of Dr. Collins to be taken and read into the record, but only as to matters not privileged under MCL 600.2157; MSA 27A.2157? That statute provides:

"No person duly authorized to practice medicine or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon: Provided, however, That in case such patient shall bring an action against, any defendant to recover for any personal injuries, or for any malpractice, if such plaintiff shall produce any physician as a witness in his own behalf, who has treated him for such injury, or for any disease or condition, with reference to which such malpractice is alleged, he shall be deemed to have waived the privilege hereinbefore provided for, as to any or all physicians, who may have treated him for such injuries, disease or condition: Provided further, That after the decease of such patient, in a contest upon the question of admitting the will of such patient to probate, the heirs at law of such patient, whether proponents or contestants of his will, shall be deemed to be personal representatives of such deceased patient for the purpose of waiving the privilege hereinbefore created.”

Since plaintiff waived the privilege during the first trial, the question becomes whether a party can reassert the privilege dealing with the same issue during the second trial. We answer in the affirmative. In Briesenmeister v The Supreme Lodge Knights of Pythias of the World, 81 Mich 525; 45 NW 977 (1890), our Supreme Court had before it a similar statute and concluded that a party asserting the privilege had the right to control the introduction of the privileged information into evidence, even where the information had been divulged earlier. The Court cited with approval Grattan v The Metropolitan Life Ins Co of NY, 92 NY 274; 44 Am Rpts 372 (1883), which held that where a party had waived the privilege at one trial, it did not preclude assertion of the privilege at a second trial. In addition, this Court recently cited Briesenmeister with approval in Beasley v Grand Trunk W R Co, 90 Mich App 576, 597-598; 282 NW2d 401 (1979). See also Polish Roman Catholic Union of America v Palen, 302 Mich 557; 5 NW2d 463 (1942), repudiating the theory that once confidential information has been published, the privilege has been waived, and Cartwright v Maccabees Mutual Life Ins Co, 65 Mich App 670, 680; 238 NW2d 368 (1975), rev’d on other grounds 398 Mich 238; 247 NW2d 298 (1976), holding that the signing of a waiver of the physician-patient privilege when applying for a life insurance policy does not waive the privilege at a subsequent trial.

Appellant also argues that plaintiffs assertion of the medical privilege was foreclosed in light of the contractual waiver of the insured contained in his application for life insurance. We disagree. Gilchrist v Mystic Workers of the World, 188 Mich 466; 154 NW 575 (1915), and its progeny have held that a contractual waiver of the medical privilege contained in the application for life insurance is against public policy and void, and the testimony of the attending physicians as to all knowledge obtained by them within the privileged area is inadmissible. See Wohlfeil v Bankers Life Co, 296 Mich 310; 296 NW 269 (1941), and Cartwright, supra.

We are also asked to determine whether the trial court erred in preventing the defendant from commenting on the plaintiffs assertion of the physician-patient privilege.

There appears to be no Michigan authority directly on point. Degroff v Clark, 358 Mich 274; 100 NW2d 214 (1960), and Magda v Johns, 374 Mich 14; 130 NW2d 902 (1964), indicate that the court and the adverse party are precluded from commenting on the assertion of the privilege or on the failure of the physician to testify. However, both of those cases were automobile negligence actions. The Court’s reasoning was that plaintiffs privilege was statutorily waived, MCL 600.2157; MSA 27A.2157, GCR 1963, 311.2(2), and that the physician-witness was available to either party.

Two Minnesota cases appear to be extremely helpful in the resolution of the problem. Nelson v Ackerman, 249 Minn 582, 597-598; 83 NW2d 500 (1957), held that where the physician-patient privilege was asserted by a party seeking damages for personal injury, and the nature and extent of the injuries were involved, it was not error for the one asserting the privilege to do so in the presence of the jury. However, the Court went on to fashion its reasoning for allowing comment on the assertion of the privilege by the adverse party:

"* * * As far as the statute gives him a right to close the mouth of the doctor we cannot interfere. And as long as the privilege is asserted for the purpose for which it was created, it should be given full respect. But when it is asserted for the sole purpose of gaining a strategic advantage over an opponent and accomplishes nothing pertinent to the purpose for which it was created, it should not be further extended by judicial decision. If it is so used, it is only fair that the jury be permitted to know who was responsible for keeping out the evidence most likely to establish the truth. The blame, in that case, should be put where it belongs, not left so that the jury can, perchance, accuse the wrong party of failing to call the doctor. We therefore now hold that, when a physician-patient privilege is asserted by a party to an action seeking recovery for personal injuries and the nature and extent of the injuries are involved, it is not error to require the one asserting the privilege to do so in the presence of the jury or to permit fair comment by the adverse party on his inability to examine such attending physician concerning his examination and treatment of the patient.”

In Stanger v Gordon, 309 Minn 215; 244 NW2d 628 (1976), the Court stated that where the privilege was asserted for the purpose for which it was created, it should be given full respect. Sanne v Metropolitan Life Ins Co, 218 Minn 181; 15 NW2d 524 (1944), which allowed a cautionary instruction regarding plaintiffs claim of physician-patient privilege, was cited with approval. In commenting on Nelson, supra, the Court concurred in its holding, but held that it was error to permit plaintiffs counsel to be repeatedly required to invoke the privilege.

Therefore, the Minnesota Courts seem to be in agreement that reasonable comment on the invocation of the physician-patient privilege is permitted where its use is to gain "* * * strategic advantage over an opponent and accomplishes nothing pertinent to the purpose for which it was created * * Nelson, supra, 597.

It should be noted that as in the previously cited Michigan cases of Degroff, supra, and Magda, supra, personal injury actions were involved. However, Minnesota does not have a statute waiving the privilege, as does Michigan.

We concur in the foregoing reasoning and adopt the Minnesota rationale. Having done so, we must resolve whether the trial judge’s ruling in the instant case constituted reversible error.

The record reflects that the portion of Dr. Collins’ testimony placed before the jury indicated he was the regular physician of the deceased, Duncan James Seaton. He attended Mr. Seaton in the hospital from August 2, 1968, to August 20, 1968. The decedent had office appointments with Dr. Collins in June and December of 1969, and in January of 1972.

Defense counsel avoided mention of the invocation of the privilege. However, the tenor of his remarks at closing argument leaves the impression that the decedent had cancer at the time the policy was issued. There is also a definite suggestion that the attending physician told Mr. Seaton, or somebody in his family, of the seriousness of the matter. The following remarks from closing argument bear out this premise:

"Now, in 1968 we have to conclude on the status of the evidence here that it was unknown to anybody that Mr. Seaton had a malignant tumor, to the pathologist, to the treating physicians, to the general surgeon who did the operation, because to say otherwise is to say that maybe somebody knew it but didn’t tell him a cancer of the intestines, probably metastasized or spread as rapidly as any nature. It is also commonly known to reoccur, frankly, on a reoccurring basis, so you have to conclude that Dr. Collins, in treating Mr. Seaton, made a conscious decision and, by the way, as Past President of the Medical Association for the State of Kansas, that he wasn’t gonna tell him. He may have made that decision on the basis that Jim Seaton couldn’t handle it, and he didn’t tell Jim Seaton; but he wouldn’t secrete it from everybody if that was his decision. He wouldn’t secrete it from James Seaton’s family, either in Lansing, or his wife. I think there’s only one reasonable conclusion to make, and that is that Jim Seaton knew it then, he had a hard decision to make, what am I going to do, what personal choice in my life am I going to make at this point in time.”

The trial judge indicated, in his instructions to the jury, that it was the defendant’s theory that the information given them by the decedent, Duncan James Seaton, was false because Mr. Seaton knew, or should have known, of his cancerous condition at the time he applied for insurance.

It, thus, appears that even though the jury was not instructed that plaintiff had invoked the physician-patient privilege, they were aware that Dr. Collins was the attending physician. They were also told by defense counsel that Dr. Collins must have informed someone of decedent’s cancerous condition. Defense counsel clearly implied that that "someone” must have been the decedent himself.

We are led to the conclusion that failure to comment on the invocation of the privilege amounted to harmless error in view of the foregoing.

Affirmed, no costs.


source: Caselaw Access Project

license: Public Domain

text:
    SZABO v INSURANCE COMMISSIONER
    Docket No. 44974.
    Submitted June 10, 1980, at Detroit.
    Decided August 27, 1980.
    The Commissioner of Insurance sought access to the files of Ronald S. Szabo, an insurance agent, and Szabo refused to grant access. After a hearing the commissioner issued an order suspending Szabo’s agency license and imposing a fine for the refusal to allow access to the files. Szabo appealed to the Wayne Circuit Court, which affirmed the commissioner’s order, Thomas Roumell, J. Szabo appeals, alleging that the commissioner does not have the authority to examine all of the insurance records of a licensed agent. Held:

    The commissioner is authorized to examine all records of an insurance agent which will shed light on the financial transactions relating to insureds and insurers.
    Affirmed.
    1. Statutes — Construction op Statutes — Legislative Intent.
    The object when interpreting a statute is to ascertain the legislative intent in enacting the provision.
    2. Courts — Administrative Law — Statutes — Construction op Statutes.
    Courts should give deference to an administrative agency’s interpretation of a statutory provision where the Legislature has properly delegated authority to the agency to carry out the mandates of the statute, although the courts are not bound by the agency’s interpretation.
    3. Insurance — Statutes — Construction op Statutes.
    Insurance laws are to be liberally construed in the interests of the public, policy holders and creditors.
    References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes §§ 145, 146.
    [2] 73 Am Jur 2d, Statutes § 168.
    [3] 43 Am Jur 2d, Insurance § 53.
    [4] 43 Am Jur 2d, Insurance § 56.

      4. Insurance — Insurance Commissioner — Examination of Records — Statutes.
    The Commissioner of Insurance has the authority to examine all records pertaining to an insurance agent which will shed light on the financial records which the agent is required by statute to keep; there is no requirement that the commissioner have probable cause to believe that the Insurance Code has been violated as a condition precedent to such examination of the records (MCL 500.1207[2]; MSA 24.11207[2]).

      Eugene A. Goreta, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harry G. Iwasko, Jr., and E. John Blanchard, Assistants Attorney General, for defendant.
    Before: Bashara, P.J., and D. C. Riley and E. A. Quinnell, JJ.

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

   Bashara, J.

Plaintiff filed a petition in circuit court seeking review of a final order issued by the Michigan Commissioner of Insurance. The order suspended plaintiff’s insurance agency license and imposed a $300 fine for his refusal to allow the Commissioner to examine insurance records. Plaintiff appeals the trial court’s affirmance of the final order.

Plaintiff raises a question of first impression in this state concerning interpretation of the Insurance Code of 1956, MCL 500.100 et seq.; MSA 24.1100 et seq. The precise issue raised is whether the Commissioner of Insurance has plenary power to examine all insurance records of a licensed agent pursuant to the code.

The record establishes that the Commissioner sought access to plaintiff’s files covering insurance transactions from 1976 to the date of the inquiry. Plaintiff refused the request, claiming that the Commissioner was without statutory authority to conduct a blanket inspection of the records. After an administrative hearing, the Commissioner issued the final order pursuant to MCL 500.1242(2); MSA 24.11242(2), and MCL 500.1244(1); MSA 24.11244(1).

In the opinion denying plaintiffs appeal from the final order, the trial court held that §§ 222 and 1207(2) of the code empower the Commissioner to examine any or all records pertaining to insurance transactions in the possession of an insurer, its officers and agents.

In interpreting a statute, the object is to ascertain legislative intent in enacting the provision. Smith v City Commission of Grand Rapids, 281 Mich 235; 274 NW 776 (1937). Where the Legislature has properly delegated authority to an administrative agency to carry out the mandates of a statute, the courts should give deference to the agency’s interpretation of the provision, although they are not bound thereby. Judges of the 74th Judicial District v Bay County, 385 Mich 710, 727-729; 190 NW2d 219 (1971).

Section 1207(2) states:

"An agent shall use reasonable accounting methods to record funds received in his fiduciary capacity including the receipt and distribution of all premiums due each of his insurers. He shall record return premiums received by or credited to him which are due an insured on policies reduced or canceled or which are due a prospective purchaser of insurance as a result of a rejected or declined application. Records required by this section shall be open to examination by the commissioner.”

Plaintiff argues that only receipt and disbursement ledger sheets are open to examination under § 1207(2). He asserts that the provision does not require disclosure of the individual files of his clients.

The trial court succinctly dismissed plaintiff’s argument in the following portion of its opinion:

"As Petitioner candidly admits, the files of persons insured through his agency agreement with the insurer constitute an important source of information regarding transactions which may well be relevant to a premium-receipt or premium-disbursement examination. Indeed, these files may be the exclusive source of information if an agent, in violation of Section 1207(1), has not disbursed funds owed to either an insurer or insured since such non-disbursement would patently not be recorded upon cancelled checks or ledger sheets and, if that violation had been wilful, it is doubtful whether these data would be recorded elsewhere with computation of required disbursements being available only upon juxtaposition of information contained within files — such as the date of effective coverage, premium paid, and the date of effective termination. Examination of insureds’ files may thus expose transactions giving rise to a disbursement obligation under Section 1207(1) and, for this reason alone, these records are well within the scope of Section 1207(2)’s obligation to produce for examination.”

It is not disputed by plaintiff that the Legislature has duly authorized the Commissioner to regulate the insurance business. Our courts have often recognized that the insurance industry is of great public interest and that insurance laws are to be liberally construed in the interests of the public, policy holders and creditors. Attorney General v Michigan Surety Co, 364 Mich 299, 325; 110 NW2d 677 (1961). In view of the purposes behind insurance regulation, we hold that the Legislature intended the Commissioner to have broad investigatory power into the records of insurers and their agents. We agree with the well-reasoned opinion of the trial court in ruling that § 1207(2) authorizes the Commissioner to examine all records pertaining to an insurance agent which will shed light on the financial transactions described in the statute.

Plaintiff further alleges that the Commissioner must have probable cause to believe that the code has been violated as a condition precedent to examination of the files. We find nothing in § 1207(2) which supports this contention. Plaintiff points to other sections of the code as authority for this argument. He then states that those sections are applicable only to insurers, not agents. The inconsistency in plaintiffs position leads us to conclude that it is without merit.

In view of our interpretation of § 1207(2), we find it unnecessary to address the scope of the Commissioner’s authority to search agents’ records under §222.

Affirmed; no costs, a statutory interpretation and a public question being involved.

       Sections 222 and 249 of the Insurance Code of 1956, supra.


author: D. F. Walsh, J.

text:
    SILVA v ADA TOWNSHIP
    Docket No. 45531.
    Submitted June 13, 1980, at Grand Rapids.
    Decided August 27, 1980.
    Leave to appeal applied for.
    A. Clare Silva and Karen J. Silva applied for the rezoning of their land to allow the mining of gravel on the land. The Ada Township Board denied the application and the Silvas brought an action against the township, alleging that the present zoning ordinance and the township’s denial of the rezoning were unconstitutional. Several neighboring landowners were allowed to intervene as defendants. The Kent Circuit Court, George V. Boucher, J., entered a judgment in favor of the defendants, finding that the plaintiffs had failed to rebut the presumption of validity of the ordinance and that the township’s denial of the application for rezoning advanced reasonable governmental interests. Plaintiffs appeal. Held:

    1. Plaintiffs alleged that a separate standard for reviewing zoning ordinances exists where the extraction of minerals from the land is involved. The Supreme Court, however, has recently determined that there is one set of standards which are applicable in all zoning cases. Those standards were properly applied by the trial court in this case.
    2. The ordinance is constitutional. Significant health, safety and welfare interests are being protected by the ordinance and by the township’s refusal to allow the gravel extraction. There is no indication of a policy of discrimination against the extraction of gravel, nor is there support for the claim that the ordinance amounts to a confiscation of the plaintiff’s land without just compensation.
    Affirmed.
    1. Zoning — Governmental Interest — Exclusion of Legitimate Use.
    A plaintiff, in order to successfully challenge a municipal zoning ordinance, must prove that there is no reasonable governmental interest being advanced by the zoning classification, or that the ordinance is unreasonable because of the arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.

      References for Points in Headnotes
    [1] 82 Am Jur 2d, Zoning and Planning § 15.
    [2] 82 Am Jur 2d, Zoning and Planning §§ 25, 27.
    [3] 82 Am Jur 2d, Zoning and Planning §§ 12, 27.
    [4] 82 Am Jur 2d, Zoning and Planning § 11 ef seq.

    [5] 82 Am Jur 2d, Zoning and Planning § 35.

      2. Zoning — Presumption of Validity — Burden of Proof.
    Zoning ordinances are presumed to be valid; it is the burden of a party attacking an ordinance to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction on the owner’s use of his property.
    3. Zoning — Use of Property — Preclusion from Use.
    A property owner, in order to sustain an attack on a zoning ordinance, must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.
    4. Zoning — Validity of Ordinances — Standards — Preferred Uses.
    The standards for determining the constitutional validity of municipal zoning ordinances apply to all determinations; there is no separate standard for cases involving so-called "preferred uses”.
    5. Zoning — Confiscation of Property — Disparity in Value.
    A claim that a zoning ordinance is confiscatory as applied to a plaintiffs property is not proven by showing a disparity in value between uses.

      Dilley & Dilley, for plaintiffs.

      Varnum, Riddering, Wierengo & Christenson (by Thomas J. Heiden), for Ada Township.

      Freihofer, Oosterhouse, Deboer & Barnhart, for intervening defendants.
    Before: Allen, P.J., and D. F. Walsh and R. McDonald, JJ.

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

   D. F. Walsh, J.

Plaintiffs challenge the constitutionality of the defendant township’s zoning decision which prohibited the excavation of gravel on agriculturally zoned land.

Plaintiffs own an 80-acre parcel of land, bordered by Three Mile Road and Pettis Road, in Ada Township, Kent County, Michigan. In accordance with the township’s Master Zoning Plan adopted in January, 1968, and reaffirmed in subsequent years, this land was classified as A-3 Agricultural. The permissible uses included, among others, general and specialized farming and single family residences. Its present use is divided, approximately evenly, between orchards (apple and cherry) and crops (corn and alfalfa). The property contiguous to plaintiffs’ contains some agricultural and residential development and some land yet to be developed.

In February, 1978, plaintiffs entered into an agreement with the Northeast Gravel Company for the mining of gravel on the 80-acre parcel. Plaintiffs projected that over a period of 10 years, 860,000 cubic yards of gravel would be strip-mined, processed and transported.

In December, 1977, plaintiffs applied for the rezoning of the 80-acre parcel to the classification of P-1 A "Planned Development — Natural Resources”. After a public hearing, the Township Planning Commission recommended that the application be denied and the township board adopted this recommendation on March 27, 1978. On March 21, 1978, plaintiffs had filed a second application for rezoning, but it was treated as if it were the same as the first.

On June 2, 1978, plaintiffs filed a complaint in the Kent County Circuit Court alleging that the present zoning ordinance and defendant’s refusal to grant the application for rezoning were unconstitutional because: (1) no reasonable governmental interest was being advanced; (2) plaintiffs were being arbitrarily and capriciously denied a legitimate use of the premises; (3) defendant’s action amounted to a taking without just compensation, a denial of equal protection and a violation of due process. On November 15, 1978, a number of landowners intervened in this suit. At a trial spanning six days during the first three months of 1979, the circuit court examined 72 exhibits and heard testimony from 28 witnesses including plaintiffs, township and city officials, the landholders, agricultural experts, well drillers, gravel users and suppliers, appraisers, planners, a developer, a civil engineer and a golf course architect.

On April 25, 1979, the trial court entered judgment in favor of defendants. The court found that plaintiffs had failed to rebut the ordinance’s presumption of validity and that the township’s denial of the application for rezoning advanced reasonable governmental interests. The court concluded that plaintiffs’ property can still be used for purposes for which it is reasonably adapted.

As an equity case, our review in this zoning matter is de novo. Kropf v Sterling Heights, 391 Mich 139, 163; 215 NW2d 179 (1974). On several occasions the Supreme Court has discussed the appropriate standards for examining the constitutionality of municipal zoning ordinances:

" 'The important principles require that for an ordinance to be successfully challenged plaintiffs prove:
" ' "[F]irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself * * * or
" ' "[Secondly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.” 391 Mich 139, 158.
" 'The four rules for applying these principles were also outlined in Kropf. They are:
" T. "[T]he ordinance comes to us clothed with every presumption of validity.” 391 Mich 139, 162, quoting from Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 NW2d 166 (1957).
" '2. "[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property * * *. It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness.” 391 Mich 139, 162, quoting Brae Burn, Inc.
" '3. "Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.” 391 Mich 139, 162-163. 1
" '4. "This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases.” 391 Mich 139, 163, quoting Christine Building Co v City of Troy, 367 Mich 508, 518; 116 NW2d 816 (1962).’ ” Ed Zaagman, Inc v Kentwood, 406 Mich 137, 153-154; 277 NW2d 475 (1979), quoting Kirk v Tyrone Twp, 398 Mich 429, 439-440; 247 NW2d 848 (1976).

Plaintiffs maintain, however, that since the instant case involves the use of natural resources, a different set of standards should apply. This contention is founded on three Supreme Court cases which expressly favor the exploitation of natural resources. North Muskegon v Miller, 249 Mich 52; 227 NW 743 (1929), Bloomfield Twp v Beardslee, 349 Mich 296; 84 NW2d 537 (1957), and Certain-Teed Products Corp v Paris Twp, 351 Mich 434; 88 NW2d 705 (1958), are cited for the proposition that where an ordinance prohibits the extraction of minerals from the land, the burden of proof shifts to the municipality to demonstrate that the zoning law is reasonable and that a landowner may not be denied the right to extract minerals from his property through zoning ordinances unless it can be shown that consequences of the most serious nature will result from the process of extraction.

Plaintiffs claim that Zaagman, supra, and Kropf, supra, are inapposite here because they were limited to the issue of whether individuals were entitled to develop their lands for multiple family homes or mobile home parks in lands zoned for single family residences, and that they should have prevailed below because the township failed to present any proofs that it faced a "dire need” for protection from very serious consequences.

Plaintiffs’ arguments are persuasive but more recent Supreme Court decisions have implicitly overruled the cases on which plaintiffs rely. In Zaagman, supra, the Supreme Court enunciated the applicable standards for determining the constitutional validity of all municipal zoning determinations. The Court made no mention of the continued viability of a separate standard for cases involving natural resources. More conclusively, in Kropf, supra, the Supreme Court expressly overruled this Court’s decision in Bristow v Woodhaven, 35 Mich App 205; 192 NW2d 322 (1971), which dealt with mobile home parks as a "preferred use” which shifted the burden of proof in a zoning case.

"Insofar as decisions of the Court of Appeals are based solely on the concept of 'favored or preferred use’ and the attendant shifting of burden of proof, they are hereby overruled. Plaintiffs must bear the burden of proof in attacking the constitutionality of the ordinance in question. It is up to them to present sufficient proofs to the court showing that the defendant city by its action violated one of their aforesaid constitutional rights and thus acted 'unreasonably’. They must show that the city, via its ordinance denied them substantive or procedural due process, equal protection of the laws, or deprived them of their property without just compensation. To each of these claims the court will apply their proofs presented and determine if they have met their burden in showing the ordinance in question to be 'unreasonable’, for, as we have said, reasonableness is the test of its validity.” Kropf v Sterling Heights, supra, 156-157.

In our judgment North Muskegon, supra, Bloomfield Twp, supra, and Certain-Teed Products Corp, supra, are essentially "preferred use” cases. See Bristow v Woodhaven, supra, 213-214. The Supreme Court has repudiated the rationale of those cases. Kropf, supra, 156-157. The appropriate standards, therefore, for determining the constitutional validity of all municipal zoning ordinances are those expressed in Zaagman, supra.

We next consider whether the township’s zoning ordinance was reasonable under the applicable Zaagman guidelines. After careful review of the entire record, we are persuaded that the ordinance is constitutional and that the defendant’s denial of the application for rezoning was not improper. Specifically the record does not support the conclusion that there was no governmental interest being advanced by the current zoning classification or that the ordinance arbitrarily and capriciously excluded other types of legitimate land use from the area in question. See Kropf, supra, 158. The testimony established that significant health, safety and welfare interests were being protected by the ordinance and the township’s refusal to allow the gravel excavation. Rather than being characterized as arbitrary or capricious, defendant’s action was based on a number of considerations which included the projected increase in noise, dust and traffic and other concerns such as water drainage, security and aesthetics.

Nor does the record indicate any policy of discrimination against the excluded use. The testimony established that the defendant has not totally excluded that use from the boundaries of the township. Kropf, supra, 155-156. Finally, there is no support for the claim that the ordinance amounts in effect to a confiscation of plaintiffs’ property without just compensation. Plaintiffs’ own expert witness testified that the property’s value for residential purposes was $93,700 (versus $154,000 for gravel use). This testimony belies any contention that the existing ordinance precluded the use of the land for any purpose to which it is reasonably adapted.: Kropf, supra, 163. A showing of disparity in value between uses does not demonstrate that the property has been subject to confiscation. Kirk v Tyrone Twp, 398 Mich 429, 444; 247 NW2d 848 (1976), Brae Burn, Inc v Bloomfield Hills, supra, 433.

The decision of the circuit court is affirmed.

       The uses under A-3 Agricultural are:
      (a) General and specialized farming;
      (b) Single-family residences on lots at least one acre in size and at least 200 feet wide;
      (c) Roadside stands for sale of produce grown on the premises;
      (d) Country clubs;
      (e) Golf courses;
      (f) Riding stables;
      (g) Publicly-owned athletic grounds.

       Plaintiffs also rely on Lyon Sand & Gravel Co v Oakland Twp, 33 Mich App 614; 190 NW2d 354 (1971), and Fredal v Forster, 9 Mich App 215; 156 NW2d 606 (1967), both of which follow the three Supreme Court decisions.


author: E. A. Quinnell, J. D. C. Riley, J.

text:
    PEOPLE v FERRELL
    Docket No. 45642.
    Submitted June 11, 1980, at Detroit.
    Decided August 27, 1980.
    Gerald Ferrell was convicted of criminal sexual conduct in the first degree and unarmed robbery following a. jury trial in Recorder’s Court of Detroit, Clarice Jobes, J. The two counts arose out of the same events, with the criminal sexual conduct count being based upon a charge that the defendant engaged in sexual penetration of the complainant under circumstances involving another felony, i.e., the unarmed robbery. Defendant appeals, arguing that, since the conviction for criminal sexual conduct in the first degree depended upon proof of the unarmed robbery, the convictions for both criminal sexual conduct and unarmed robbery constitute a violation of the constitutional right against double jeopardy. Held:

    Since the conviction for criminal sexual conduct in the first degree required proof of the commission of some other felony but did not require proof of the specific unarmed robbery which was also charged, and since the Legislature evidenced a clear intent to authorize such multiple convictions and punishments arising out of a common act, the convictions for both criminal sexual conduct in the first degree and unarmed robbery are constitutionally permissible.
    Affirmed.
    D. C. Riley, J., concurred in the result but indicated her disagreement with the decision of the Supreme Court which mandated this result. She reaffirmed her position that felony . murder and armed robbery represents a valid double-jeopardy claim.
    Opinion of the Court
    1. Criminal Law — Constitutional Law — Double Jeopardy — Criminal Sexual Conduct — Statutes.
    A conviction for criminal sexual conduct in the first degree under an information charging sexual penetration under circumstances involving the commission of another felony even when coupled with a conviction of that underlying other felony does not violate the constitutional prohibition against double jeopardy (MCL 750.520b; MSA 28.788[2]).

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 189.
    [2] 21 Am Jur 2d, Criminal Law §§ 188, 189.

      Concurrence by D. C. Riley, J.
    2. Criminal Law — Constitutional Law — Double Jeopardy — Felony Murder — Armed Robbery.

      Prosecution for both felony murder and the underlying felony of armed robbery violates the double jeopardy clause of the constitution because a defendant is thereby twice subjected to jeopardy for the same act.

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

      Elliot D. Margolis, for defendant.
    Before: Bashara, P.J., and D. C. Riley and E. A. Quinnell, JJ.

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

   E. A. Quinnell, J.

Defendant was convicted by a jury of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and unarmed robbery, MCL 750.530; MSA 28.798. He was sentenced to concurrent terms of 5 to 15 years imprisonment.

Defendant’s double jeopardy claim must be rejected in light of the Michigan Supreme Court holding in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), app dis sub nom Brintley v Michigan, 444 US 948; 100 S Ct 418; 62 L Ed 2d 317 (1979). In Wayne County Prosecutor, supra, 397-398, the Court held that the double jeopardy test of Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), turned on an analysis of what the prosecution was legally required to prove to obtain a conviction, and not what the prosecution established in a particular case. Here, the prosecution was legally required to prove that a sexual penetration occurred under circumstances involving the commission of some other felony. The prosecution was not legally required to prove unarmed robbery. Thus, under the Michigan Supreme Court’s interpretation of Blockburger, no double jeopardy violation exists.

Furthermore, there is no constitutional infirmity with the convictions for unarmed robbery and first-degree criminal sexual conduct under the standard set out in People v Martin, 398 Mich 303; 247 NW2d 303 (1976). In Wayne County Prosecutor, supra, 399-402, the Court held that where there is a clear expression of legislative intent to authorize multiple convictions and punishments arising out of a common act, there is no double jeopardy problem. In the instant case, there is a clear legislative intent to authorize multiple convictions and punishments. See People v Robideau, 94 Mich App 663; 289 NW2d 846 (1980). We are thus bound by Wayne County Prosecutor, supra, to uphold both of defendant’s convictions.

Defendant’s other claims of error lack any merit and do not require discussion.

Affirmed.

Bashara, P.J., concurred.

D. C. Riley, J.

(concurring). While I concur in the result reached in this matter based on our Supreme Court’s decision in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374, 397-398; 280 NW2d 793 (1979), I write separately to indicate my disagreement with that decision and to reaffirm my position in People v Allen, 94 Mich App 539; 288 NW2d 451 (1980) (lest my approval here be interpreted as a repudiation of same), that prosecution for felony murder and armed robbery presents a valid double-jeopardy claim.


text:
    PEOPLE v TAYLOR
    Docket No. 45812.
    Submitted May 12, 1980, at Lansing.
    Decided August 27, 1980.
    Lee A. Taylor was convicted, on his plea of guilty, of larceny over $100, Washtenaw Circuit Court, Ross W. Campbell, J. As part of the plea agreement, the prosecutor agreed to file a supplemental information charging the defendant as a second offender rather than charging him as a fourth offender. The prosecutor filed the supplemental information on March 22, 1979, and, on April 20, 1979, the defendant was convicted on his plea of guilty to being a second conviction habitual offender. Following sentencing as a habitual offender, the defendant appeals arguing that his habitual offender conviction should be set aside by reason of the rule announced by the Michigan Supreme Court in People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), on August 28, 1979, under which the supplemental habitual offender information must be filed with the information charging the underlying felony. Held:

    1. The question of whether a new rule of law should be applied retroactively is determined by balancing three factors: (1) the purpose of the new rule of law; (2) the general reliance on the old rule of law; and (3) the effect of the retroactive application of the new rule of law on the administration of justice.
    2. The purpose of the Supreme Court’s new rule requiring the filing of the supplemental habitual offender information charges with the information charging the last underlying felony was to avoid the appearance of any prosecutorial impropriety and to give the defendant adequate notice of the prosecutor’s intent. Since the supplemental habitual offender charge brought against the defendant herein was brought pursuant to a guilty plea agreement entered into by the defendant, the defendant was afforded adequate notice of the supplemental charge and was in no way prejudiced by the fact that the supplemental charge was not filed until after his plea of guilty to the underlying felony. Retroactive application of the Supreme Court’s new rule of law is not necessary under these circumstances.

      References for Points in Headnotes
    [1, 2] 20 Am Jur 2d, Courts §§ 233, 236.
    Prospective or retroactive operation of overruling decision. 10 ALR3d 1371.
    Retroactive or merely prospective operation of new rule adopted by court in overruling precedent - Federal Cases. 14 L Ed 2d 992.
    [2] 21 Am Jur 2d, Criminal Law § 491.5.
    39 Am Jur 2d, Habitual Criminals and Subsequent Offenders §§ 19-22.

      Affirmed.
    1. Criminal Law — Common Law — Case Precedent •— Retroactive Application.
    The question of whether a new rule of law should be applied retroactively is determined by balancing three factors: (1) the purpose of the new rule of law; (2) the general reliance on the old rule of law; and (3) the effect of the retroactive application of the new rule of law on the administration of justice.
    2. Criminal Law — Habitual Offenders — Filing of Charges — Retroactive Application.
    The Michigan Supreme Court’s new holding that habitual offender charges must be filed with the information charging the last underlying felony should not be applied retroactively to a habitual offender conviction which arose out of a guilty plea agreement entered into prior to the date of decision of the case establishing the new rule of law, since under that guilty plea agreement the defendant had ample notification of the prosecutor’s intent, thereby satisfying the purpose of the new rule, and was in no way prejudiced by the filing of the supplemental habitual offender information after having entered his plea of guilty to the underlying charge.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Robert L. Cooper, Assistant Prosecuting Attorney, for the people.

      Kendall B. Williams, for defendant on appeal.
    Before: D. F. Walsh, P.J., and Bashara and K. B. Glaser, JJ.

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

   Bashara, J.

Defendant appeals from a plea-based conviction for violation of the second felony offender provision of MCL 769.10; MSA 28.1082.

The record reveals that on March 16, 1979, the defendant entered a plea of guilty to the charge of larceny over $100, MCL 750.356; MSA 28.588. The prosecutor and defense counsel, as well as defendant, all stipulated that, as part of the plea bargain, the prosecutor would file a supplemental information charging defendant as a second offender. Thereafter, defendant’s plea to the larceny charge was accepted. On March 22, 1979, the prosecutor filed the supplemental information, to which defendant pled guilty. He was sentenced to 3-1/2 to 7-1/2 years. The sentence for the underlying larceny conviction was set aside.

Defendant’s sole contention is that People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), should be applied retroactively. That case, which was decided on August 28, 1979, held that to avoid the appearance of impropriety the supplemental information should be filed with the information charging the underlying felony.

The Supreme Court has made it clear that it has not yet ruled on the question of Fountain’s retro-activity. People v Devine, 407 Mich 904 (1979). In order to determine this issue, it is necessary to approach the problem by balancing three factors: (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect on the administration of justice. People v Kamin, 405 Mich 482; 275 NW2d 777 (1979).

The new rule’s purpose is best portrayed by an excerpt from Fountain, supra, 99:

"The habitual offender charges should have been filed with the information which charged the last felony to provide fair notice and avoid an appearance of prosecutorial impropriety.”

It thus appears that a majority of the Court has now adopted the rationale of Justice Levin in his dissenting opinion in People v Hendrick, 398 Mich 410, 423; 247 NW2d 840 (1976):

"While the habitual offender provisions of the Code of Criminal Procedure do not create a separate offense, providing rather for enhanced punishment for the current offense, fairness requires notice to the offender that he may face enhanced punishment where the prosecutor is aware, in advance of the trial on the current offense, of the offender’s prior record.”

It would, therefore, seem that the primary purpose of the rule is to provide notice and lessen the appearance of prosecutorial impropriety through lack of notice of an intent to file a supplemental information.

The second and third factors can be considered together, since the extent of reliance on the old rule often determines the effect upon the administration of justice. People v Hampton, 384 Mich 669; 187 NW2d 404 (1971).

Prior to Fountain, it was not error for the prosecutor to file a supplemental information subsequent to a conviction on the underlying offense, unless the delay substantially prejudiced the defendant. People v Marshall, 41 Mich App 66; 199 NW2d 521 (1972). The timing of the filing of supplemental charges depended upon the particular circumstances of each case.

Where the accused’s rights were not prejudiced, the habitual offender charges were generally not filed until after the conviction on the substantive offense. Since the prior rule was heavily relied on by the prosecutors of this state, applying the rule retroactively would have a substantial effect upon the administration of justice. This accords with the concurring opinion of Chief Justice Coleman that the result in Fountain is based on the Court’s supervisory powers over the practices and procedures used in the courts of this state. Fountain, supra, 99-100.

It is beyond question that the Fountain rule must be adhered to after its release. However, we hold that it will be retroactively applied only where a defendant has not received notice that a supplemental information would be filed and that lack of such notice works to the prejudice of the defendant.

Applying that ruling to the case at bar, it is clear that the defendant received ample notification of the prosecutor’s intent to file a supplemental information. In fact, it framed a part of the plea bargain in which all parties participated. The defendant was not prejudiced by the filing of the supplemental information after the plea to the underlying charge.

Affirmed;


text:
    PEOPLE v TIMS
    Docket No. 46166.
    Submitted June 11, 1980, at Grand Rapids.
    Decided August 27, 1980.
    Henry Tims was convicted of criminal sexual conduct in the third degree in Kent Circuit Court, Stuart R. Hoffius, J., and sentenced to a prison term of 2 to 15 years. Subsequently, a supplemental information was filed charging the defendant as an habitual offender and he was convicted of that charge. Thereafter, he was resentenced to serve a prison term of 4 to 22-1/2 years. Defendant appeals the habitual offender conviction alleging that since the prosecutor is presumed to have had knowledge of the defendant’s 1977 conviction, the basis for the habitual offender charge, at the time of the filing of the information on the criminal sexual conduct charge, he was required to file the supplemental information prior to the defendant’s trial on the criminal sexual conduct charge. Held:

    Under the rule enunciated in People v Marshall, 41 Mich App 66; 199 NW2d 521 (1972), a prosecuting attorney had discretion to file a supplemental information against a defendant under the Michigan habitual offender act either before or after conviction on a current charge even where the prosecutor had knowledge of a defendant’s previous convictions, but where the prosecutor elected to delay the filing of the supplemental information until after conviction on the current offense and where no good reason existed for the delay and the delay substantially prejudiced the defendant’s rights, the filing of the supplemental information denied the defendant his right to due process of law and conviction on that information was precluded. Here, because the defendant was required to go to trial on the current offense without notice of the severity of the possible consequences of conviction he was substantially prejudiced and denied due process of law.
    The habitual offender conviction is reversed and the original sentence is reinstated.
    Reference for Points in Headnote
    [1] 39 Am Jur 2d, Habitual Criminals and Subsequent Offenders §§ 20-21.

      Prosecuting Attorneys — Habitual Offenders — Statutes.
    A prosecuting attorney had discretion under a prior Court of Appeals ruling to file a supplemental information against a defendant under the Michigan habitual offender act either before or after conviction on a current charge even where the prosecutor had knowledge of a defendant’s previous convictions, but where the prosecutor elected to delay the filing of the supplemental information until after conviction on the current offense and where no good reason existed for the delay and the delay substantially prejudiced the defendant’s rights the filing of the supplemental information denied the defendant his right to due process of law and conviction on that information was precluded under the rule enunciated (MCL 769.10; MSA 28.1082, 41 Mich App 66; 199 NW2d 521 [1972]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.

      George S. Buth, for defendant on appeal.
    Before: Allen, P.J., and D. F. Walsh and G. R. McDonald, JJ.

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

   D. F. Walsh, J.

On October 9, 1978, defendant Tims was convicted of criminal sexual conduct in the third degree. MCL 750.520d(l)(b); MSA 28.788(4)(1)(b). On October 20, 1978, a supplemental information was filed charging defendant as an habitual offender. MCL 769.10; MSA 28.1082. Defendant was sentenced on December 5, 1978, on the criminal sexual conduct conviction to a prison term of 2 to 15 years. On March 26, 1979, defendant was convicted on the habitual offender charge and on May 1, 1979, was resentenced to serve a prison term of 4 to 22-1/2 years. In this appeal defendant challenges only his conviction on the habitual offender charge.

The supplemental information was based upon defendant’s 1977 conviction in the Kent County Circuit Court on a charge of larceny in a building in addition to defendant’s current conviction on the criminal sexual conduct charge. Defendant claims that since the prosecutor is presumed to have had knowledge of his 1977 conviction at the time of the filing of the information on the criminal sexual conduct charge he was required to file the supplemental information prior to defendant’s trial on that charge. We agree.

In People v Marshall, 41 Mich App 66; 199 NW2d 521 (1972), this Court ruled that the prosecutor had discretion to file a supplemental information under the habitual criminal act either before or after conviction on the current offense. He had this discretion even where he had knowledge of the previous convictions. We further ruled, however, that where the prosecutor elects to delay the filing of the supplemental information until after conviction on the current offense and where no good reason exists for the delay and the delay substantially prejudices the defendant’s rights, the filing of the supplemental information denies the defendant his right to due process of law and conviction on that information is precluded.

In his dissent in People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976), Justice Levin wrote forcefully of the substantial prejudice resulting to a defendant who is required to go to trial on a current offense without notice of the prosecutor’s intent to charge him as an habitual criminal if he is convicted of the current offense.

"While the habitual offender provisions of the Code of Criminal Procedure do not create a separate offense, providing rather for enhanced punishment for the current offense, fairness requires notice to the offender that he may face enhanced punishment where the prosecutor is aware, in advance of the trial on the current offense, of the offender’s prior record.
"The severity of the potential punishment that may be imposed is often reflected in the processing and disposition of charges against offenders. Minor offenders often are not cited; if cited they may be permitted to dispose of the matter informally, paying a predetermined fine. Accused persons aware that they will be placed on probation often plead guilty without appointment of counsel or offering a defense. Counsel need not be appointed for indigent offenders who are charged with minor offenses not subject to incarceration.
"Increased resources are generally devoted to the prosecution and defense of persons charged with serious offenses carrying long sentences. The law recognizes in many ways that the amount of process required by ordinary notions of fairness depends in part on the potential impact on the accused of the conviction.
"The nature of the accused’s response, the care with which he prepares to defend himself, will often depend on the severity of the potential punishment. It is overwhelmingly important to an accused whether upon conviction of a fourth felony, say of carrying a concealed weapon, the maximum sentence is five years or life.
"In this connection, it is noteworthy that persons sentenced as habitual offenders are not eligible for parole before the expiration of the minimum term without the sentencing judge’s approval.” People v Hendrick, supra, dissenting opinion by Levin, J., at 423-424.

In this case the prosecutor must be presumed to have known of the defendant’s prior felony record because his office prosecuted the prior felony. People v Fountain, 407 Mich 96; 282 NW2d 168 (1979). The intent of the prosecutor to file a supplemental information charging the defendant as an habitual offender was not clearly manifested until 11 days after defendant’s conviction on the current offense. In our judgment, requiring the defendant to go to trial on the current offense without notice of the severity of the possible consequences of conviction was substantially prejudicial and amounted to a denial of due process of law.

Defendant’s conviction of the habitual offender charges contained in the supplemental information is reversed, his sentence of 4 to 22-1/2 years in prison is vacated and his original sentence of 2 to 15 years in prison is reinstated.


author: M. J. Kelly, J.

text:
    PEOPLE v STANLEY ROBINSON
    Docket No. 46333.
    Submitted May 7, 1980, at Lansing.
    Decided August 27, 1980.
    Leave to appeal applied for.
    Stanley L. Robinson, Jr., pled guilty to breaking and entering with intent to commit larceny and was sentenced to probation. He served an initial jail term as a condition of the probation. Defendant subsequently pled guilty to probation violation and was sentenced to prison on the underlying charge, Otsego Circuit Court, William A. Porter, J. He appeals, alleging.that the trial court erred in accepting his waiver of counsel and in failing to give him credit for the imprisonment imposed as a condition of probation. Held:

    1. The record reveals no error with respect to defendant’s waiver of counsel at the probation revocation hearing.
    2. Defendant’s initial period of imprisonment, served as a condition of probation, should be treated no differently than any other time a defendant serves in jail in connection with the underlying offense for which he is ultimately sentenced, and, thus, defendant should receive a sentence credit.
    Remanded for resentencing or entry of credit.
    1. Criminal Law — Probation Violation — Sentence Credit.
    A defendant who pleads guilty to a probation violation and subsequently is sentenced to a term of imprisonment on the underlying conviction should be given a sentence credit for imprisonment served as a condition of probation.
    2. Criminal Law — Probation Violation — Sentence Credit — Statutes.
    The probation statute does not bar a sentence credit for imprisonment served as a condition of probation where probation is revoked and a sentence is imposed for the underlying conviction, and one may not logically infer from the fact that a probation violator may be sentenced to the same penalty that might have been imposed originally that such credit is prohibited (MCL 771.4, 769.11b; MSA 28.1134, 28.1083[2]).

      References for Points in Headnotes
    [1-4] 21 Am Jur 2d, Criminal Law § 545.5.
    Right of defendant sentenced after revocation of probation to credit for jail time served as condition of probation. 99 ALR3d 781.
    [2] 73 Am Jur 2d, Statutes § 295.
    [3-5] 73 Am Jur 2d, Statutes §§ 296, 297.

      3. Criminal Law — Probation — Sentence Credit Statutes — Construction.
    The sentence credit statute is to be construed liberally, and, thus, does not bar a sentence credit for imprisonment served as a condition of probation even though its language apparently restricts its application to time served in jail prior to sentencing due to the unavailability of bond (MCL 769.11b; MSA 28.1083[2]).
    4. Criminal Law — Probation Violation — Sentence Credit — Statutes.
    The sentence credit statute should apply where a defendant has served time as a condition of probation and later pleads guilty to a probation violation and is sentenced to a term of imprisonment on the underlying conviction (MCL 769.11b; MSA 28.1083[2]).
    5. Criminal Law — Probation — Imprisonment.
    The initial period of imprisonment served as a condition of probation should be treated no differently than any other time a defendant serves in jail in connection with the offense for which he is ultimately sentenced.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and John Dennany, Prosecuting Attorney (by Leonard J. Malinowski, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Terence R. Flanagan, Assistant State Appellate Defender, for defendant on appeal.
    Before: Cynar, P.J., and M. J. Kelly and T. Gillespie, JJ.

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

   M. J. Kelly, J.

Defendant pled guilty to breaking and entering with intent to commit larceny contrary to MCL 750.110; MSA 28.305. On April 15, 1978, defendant was sentenced to four years probation, the initial six months to be served in the county jail. On April 12, 1979, defendant was arraigned for probation violations. Defendant waived counsel and tendered a plea of guilty to the charges of leaving the state without permission and changing his residence without proper notice to the probation office. Defendant was then sentenced to a term of 3-1/2 to 10 years imprisonment on the underlying breaking and entering conviction, following revocation of probation. Defendant was given credit for 13 days of incarceration prior to sentencing but received no credit for the six months imprisonment imposed as a condition of the probation order. Defendant appeals as of right the waiver of counsel at his revocation hearing and the credit time provision of his sentence.

Our examination of the record reveals no error with respect to defendant’s waiver of counsel at the probation revocation hearing. We do, however, agree with defendant that he should receive sentence credit for the six month imprisonment served as a condition of probation.

Prior decisions of this Court that defendants are not entitled to such credit indicate an obligation to respect legislative intent as purportedly manifested in the probation statute which provides:

"In case such probation order is terminated or revoked the court may proceed to sentence such probationer in the same manner and to the same penalty as it might have done if such probation order had never been made.” MCL 771.4; MSA 28.1134,

and the presentence credit statute which states:

"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.” MCL 769.11b; MSA 28.1083(2). (Emphasis added.) See People v Sturdivant, 97 Mich App 711; 296 NW2d 157 (1980) People v Jaynes, 23 Mich App 360; 178 NW2d 558 (1970).

Contrary to the position taken by the Jaynes Court and the Sturdivant majority, we do not read a bar to such credit in the probation statute. One may not logically infer from the fact that a probation violator may be sentenced to the same penalty that the court might originally have imposed that jail time credit on such sentence is prohibited.

An examination of the procedures followed in other jurisdictions with similar statutory schemes supports the contrary position. In both Florida and California, which refuse to grant credit for probation in general, a defendant is entitled to credit for jail time served as a condition of probation. Fla Stat Ann 948.06, Hutchinson v State, 360 So 2d 1160 (Fla App, 1978), Evans v State, 356 So 2d 1355 (Fla App, 1978), Cal Penal Code §§1203.1-1203.3, People v Ham, 44 Cal App 3d 288, 295; 118 Cal Rptr 591 (1975). In Illinois, where it is within the discretion of the trial court to credit the entire period of probation against a sentence of imprisonment following revocation, 38 Ill Ann Stat 1005-6-4(h), defendant is nevertheless entitled to credit for all jail time previously served for the underlying offense. 38 Ill Ann Stat 1005-8-7(b). See People v Dixon, 41 Ill App 2d 910; 354 NE2d 638 (1976). Contra, Wis Stat Ann 973.10, State v Wills, 69 Wis 2d 489; 230 NW2d 827 (1975).

Neither do we find a barrier to granting such credit under the terms of the sentence credit statute. Even though the language apparently restricts its application to time served in jail prior to sentencing due to the unavailability of bond, this Court has on several occasions demonstrated a willingness to construe it liberally. People v Stange, 91 Mich App 596, 599; 283 NW2d 806 (1979). See Kaufman, J., dissenting in Sturdivant, supra. The instant case presents one more factual circumstance in which the credit statute should apply.

Finally, our efforts to discern some valid policy for denying credit in this instance have proved fruitless. In People v Lacy, 54 Mich App 471, 476; 221 NW2d 199 (1974), Judge Allen offered the following rationale for denying defendant’s request for credit for the entire probationary period upon revocation and sentencing:

"A person placed on probation has an obvious interest in avoiding incarceration. If credit were granted in a situation such as the instant one, trial courts might be reluctant to grant probation. The effectiveness of the tool for securing compliance with the terms of probation would be vitiated if credit were granted for time previously spent thereon. Were defendant to prevail, it would be a victory for defendant but a Pyrrhic victory for future defendants. A trial court could well be discouraged in the important and necessary exercise of discretion in sentencing defendants in a manner relevant to their respective characteristics and to the crime involved. The state also has an interest in avoiding the expenses attendant to incarceration, and in seeking the effective rehabilitation and continued usefulness of its citizens outside of prison walls. The above have led this Court to conclude that a 'compelling state interest’ justified the withholding of credit for time spent on probation, and we find that the trial court did not err in crediting defendant only with time he had previously spent in jail.”

See United States v Evers, 534 F2d 1186 (CA 5, 1976), Holder v United States, 546 F2d 616 (CA 5, 1977).

While this reasoning is sound with respect to credit for all the time spent on probation, its application to the initial period of incarceration imposed as a condition of probation pursuant to MCL 771.3; MSA 28.1133 is questionable. During that time, as in any other sentence of imprisonment, the defendant is subjected to total loss of liberty. We do not conclude that the incentive to comply with the conditions of probation is threatened by granting credit for jail time only.

In Stange, supra, this Court held that a defendant, ordered by the trial court to a drug rehabilitation center pursuant to the delayed sentencing statute, MCL 771.1; MSA 28.1131, was entitled to credit against his ultimate sentence for time expended therein. In response to the prosecutor’s attempt to distinguish the situation presented here, the Court reasoned:

"Significantly, the crediting statute applies to the time spent in jail prior to sentencing, MCL 769.11b. However, jail time served as part of probation is subsequent to sentencing and, therefore, not entitled to any legislatively mandated credit upon revocation.”

When phrased somewhat differently, the thrust of this position becomes fuzzy. In other words, a defendant who spends time in jail prior to sentencing is subsequently credited with that time so that it is considered a portion of his sentence already served. A defendant placed on probation who spends time in jail as part of his sentence is not entitled to have that period considered as time already served upon revocation even though it was attended by none of the benefits incident to the non-custodial remainder of probation. The obvious desirability of a sentence of probation is the avoidance of incarceration. However, the initial period of imprisonment served as a condition of probation should be treated no differently than any other time defendant serves in jail in connection with the offense for which he is ultimately sentenced.

Remanded for resentencing or entry of credit in conformity with this opinion.


author: V. J. Brennan, J.

text:
    DICKERSON v WARDEN, MARQUETTE PRISON
    Docket No. 46384.
    Submitted February 5, 1980, at Lansing.
    Decided August 27, 1980.
    Chester G. Dickerson and Oscar J. Pratt, prisoners at the Marquette Branch Prison, were placed in solitary confinement following an administrative hearing in which their security classification was changed to one of “administrative segregation” pending an investigation of alleged misconduct by Dickerson and Pratt. Approximately one month after being placed in administrative segregation, Dickerson and Pratt filed in Marquette Circuit Court a document entitled "Order to Show Cause” in which they alleged that they had been denied Federal constitutional rights under color of state law, asserted that the circuit court had jurisdiction pursuant to 42 USC 1983, and sought certain injunctive relief and monetary damages against the warden of Marquette Prison. The Marquette Circuit Court, John E. McDonald, J., treated the pleadings as seeking habeas corpus relief and dismissed the proceedings on the basis that the plaintiffs had not exhausted their administrative remedies. After eight months in solitary confinement, plaintiffs had a disciplinary hearing and received penalties of seven days in solitary confinement. Plaintiffs appeal. Defendant filed a motion to dismiss the appeal. Held:

    1. The motion to dismiss the appeal is denied.
    2. State courts have concurrent jurisdiction to hear claims brought pursuant to 42 USC 1983 that Federal constitutional rights had been violated under color of state law. Although the cause of action is created by Federal statute, state courts have jurisdiction to hear such claims.
    3. While the scope of the rights afforded a prison inmate in a disciplinary proceeding does not include the full panoply of rights and protections guaranteed to a defendant in a criminal prosecution, incarceration does not mean that an inmate forfeits all his constitutional rights.

      References for Points in Headnotes
    [1] 15 Am Jur 2d (Rev), Civil Rights § 263 et seq.

    [2-6] 60 Am Jur 2d, Penal and Correctional Institutions § 41.5.
    [5] Relief, under federal Civil Rights Acts, to state prisoners complaining of conditions relating to corporal punishment, punitive segregation, or other similar physical disciplinary measures. 18 ALR Fed 7.
    [6] 60 Am Jur 2d, Penal and Correction Institutions § 49.

      4. Due process requires that before disciplinary segregated confinement may be imposed a prison inmate must: (1) be given written notice at least 24 hours prior to the disciplinary hearing; (2) be furnished with a written statement by the factfinder explaining the reason for any disciplinary action; and (3) be afforded the opportunity to call witnesses and present documentary evidence, if this would not be unduly hazardous to institutional safety or correctional goals.
    5. The classification of plaintiffs’ solitary confinement as "administrative confinement” does not change the true disciplinary character of that confinement. While administrative confinement of short duration may be proper without providing either notice or a hearing, the eight months of solitary confinement before the full disciplinary hearing was held rendered that confinement disciplinary rather than administrative in nature. Due process thus mandated that, before the imposition of the solitary confinement, plaintiffs be afforded an evidentiary hearing and the right to present evidence on their own behalf. Plaintiffs’ allegations in their complaint in the circuit court, having therein alleged a deprivation of a Federal constitutional right under color of state law, stated a cause of action under 42 USC 1983.
    6. Since the question involved is one of constitutional proportions, judicial review is not precluded by any failure to exhaust administrative remedies, since the Department of Corrections, as an administrative agency, is not empowered to adjudicate the constitutional claims.
    Reversed and remanded.
    1. Courts — State Courts — Jurisdiction — Constitutional Rights — Federal Statute.
    State courts exercise concurrent jurisdiction over claims brought under the Federal statute creating the right to bring actions where Federal constitutional rights have been violated under color of state law (42 USC 1983).
    2. Prisons and Prisoners — Constitutional Law — Disciplinary Proceedings — Extent of Constitutional Protection.
    The extent of the rights afforded to a prison inmate in a disciplinary proceeding does not include the full panoply of rights and protections guaranteed to a defendant in a criminal prosecution, although incarceration does not mean that the inmate forfeits all his constitutional rights.
    3. Prisons and Prisoners — Constitutional Law — Due Process — Disciplinary Measures — Segregated Confinement.
    Due process requires that before the imposition on a prison inmate of disciplinary segregated confinement the prison inmate must: (1) be given written notice of the charges at least 24 hours prior to the disciplinary hearing; (2) be furnished with a written statement by the factfinder explaining the reason for any disciplinary action; and (3) be afforded the opportunity to call witnesses and present documentary evidence, if this would not be unduly hazardous to institutional safety or correctional goals.
    4. Prisons and Prisoners — Segregated Confinement — Evidentiary Hearings — Notice — Constitutional Law — Statutes.
    The classification of segregated confinement of a prison inmate as "administrative confinement” rather than "disciplinary confinement” does not relieve prison officials from conducting an evidentiary hearing with proper notice to the prisoner where such segregated confinement is not of short duration; the classification of such segregated confinement as administrative confinement does not take such confinement outside the scope of either the constitutional due process requirements or statutory mandate relative to the necessary notice and hearing that must be afforded to a prisoner before the imposition of segregated confinement (MCL 791.251, 791.252; MSA 28.2320[51], 28.2320[52]).
    5. Prisons and Prisoners — Actions — Pleadings — Constitutional Rights — Statutes.
    An allegation by a prisoner that he was detained in segregated confinement for eight months pursuant to an administration reclassification following a hearing at which the prisoner was not permitted to speak in his own defense is sufficient to allege a deprivation of Federal constitutional rights under color of state law within the meaning of the Federal statute creating such actions (42 USC 1983).
    6. Administrative Law — Administrative Procedures Act — Prison Disciplinary Hearings — Contested Cases — Judicial Review — Exhaustion of Remedies — Statutes.
    Disciplinary hearings of prisoners, being contested cases pursuant to the Administrative Procedures Act, are subject to the right of judicial review after exhaustion of administrative remedies; however, the failure to exhaust the administrative remedies does not preclude judicial review where to do so would be useless or where a constitutional question, which the administrative agency is powerless to determine, is involved (MCL 24.301; MSA 3.560[201]).
    Chester G. Dickerson and Oscar J. Pratt, in propriis personis.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Keith D. Roberts, Assistant Attorney General, for defendant.
    Before: Cynar, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   V. J. Brennan, J.

Chester G. Dickerson and Oscar J. Pratt, inmates of the Marquette Branch Prison, appeal from the circuit court’s dismissal of their "order for show cause” which alleged, pursuant to 42 USC 1983, a denial of Federal constitutional rights under color of state law. The plaintiffs claim that they were reclassified to a more restrictive inmate status without being afforded an opportunity to present proof to dispute the charges which served as the basis for their reclassification.

The incident which led to the reclassification occurred on June 6, 1978, when the plaintiffs were visited by Barbara Kreusher. Because of the trio’s suspicious behavior, the visit was terminated, and the plaintiffs were searched. During the search, the plaintiffs struggled with a guard, and plaintiff Pratt flushed an object down a toilet. A subsequent search of the sewer line disclosed a round, dark object about three inches in length containing a sizeable quantity of marijuana. The guard identified this object as that which he saw plaintiff Pratt flush down the toilet.

On June 1, 1978, both plaintiffs were served with a notice of intent to conduct an administrative hearing concerning their security classifications. Following a hearing on June 8, 1978, the pair were placed in solitary confinement, which was termed "administrative segregation, triple O, F Unit; and also placed on closed visits”. According to a prison spokesperson, the purpose of the June 8, 1978, classification hearing was not to investigate the alleged misconduct or criminal behavior but merely to decide whether to place the inmates in some form of restrictive custody until the matter was settled. A disciplinary hearing was conducted eight months later, at which time the plaintiffs received penalties of seven days in solitary confinement. The plaintiffs remained in solitary confinement in the interim.

On July 18, 1978, the circuit court denied the petition in an opinion and order. The judge did not reach the underlying merits of the dispute, finding that the plaintiffs had not exhausted their administrative remedies. The plaintiffs appeal. The defendant filed a motion to dismiss the appeal which we deny.

The first question before us is whether the plaintiffs have made out a claim actionable under 42 USC 1983. Although 42 USC 1983 is a Federal statute, state courts exercise concurrent jurisdiction over § 1983 claims. International Prisoners' Union v Rizzo, 356 F Supp 806 (ED Pa, 1973), Brown v Pitchess, 13 Cal 3d 518; 119 Cal Rptr 204; 531 P2d 772 (1975), Alberty v Daniel, 25 Ill App 3d 291; 323 NE2d 110 (1974), Terry v Kolski, 78 Wis 2d 475; 254 NW2d 704 (1977). Despite the foregoing, if the petitioner in an action brought pursuant to 42 USC 1983 fails to plead that a constitutional right has been violated under color of state law, there can be no redress under the statute. In the instant case, the plaintiffs allege a violation of their rights to procedural due process. Specifically, they claim that they were reclassified to more restrictive inmate status without being afforded an opportunity to present proof to dispute the charges which served as the basis for the reclassification.

It cannot be gainsaid that the plaintiffs, as inmates of Marquette Prison, do not have a right to the same constitutional protections accorded nonimprisoned citizens. These plaintiffs have been found guilty beyond a reasonable doubt in a judicial proceeding providing the full panoply of rights and protections guaranteed to the criminally accused under both our Federal and state Constitutions. Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights justified by considerations underlying the penal system. While the convicted prisoner does not forfeit all his constitutional protections when the prison gates close behind him, prison disciplinary proceedings are not part of a criminal prosecution and thus do not call into play all those rights due a defendant in a criminal prosecution. Wolff v McDonnell, 418 US 539; 94 S Ct 2963; 41 L Ed 2d 935 (1974).

In Wolff, the Supreme Court determined that before a prisoner could be denied "good-time credit”, the following dué process requirements must be met: (1) advance written notice of the charges of at least 24 hours prior to the disciplinary hearing; (2) a written statement by the fact-finders) explaining the reason for any disciplinary action must be supplied to the prisoner; and (3) the opportunity to call witnesses and present documentary evidence, if this would not be unduly hazardous to institutional safety or correctional goals, must be afforded to the prisoner. While Wolff was concerned with the question of the state’s deprivation of good-time credits, footnote 19 extends these minimal due process requirements to the imposition of "solitary confinement” as a disciplinary measure.

"19. Although the complaint put at issue the procedures employed with respect to the deprivation of good time, under the Nebraska system, the same procedures are employed where disciplinary confinement is imposed. The deprivation of good time and 'solitary’ confinement are reserved for instances where serious misbehavior has occurred. This appears a realistic approach, for it would be difficult for the purposes of procedural due process to distinguish between the procedures that are required where good time is forfeited and those that must be extended when solitary confinement is at issue. The latter represents a major change in the conditions of confinement and is normally imposed only when it is claimed and proved that there has been a major act of misconduct. Here, as in the case of good time, there should be minimum procedural safeguards as a hedge against arbitrary determination of the factual predicate for imposition of the sanction. We do not suggest, however, that the procedures required by today’s decision for the deprivation of good time would also be required for the imposition of lesser penalties such as the loss of privileges.” (Emphasis (added.) 418 US 539, 571-572.

Following Wolff, the Supreme Court declined to extend due process procedural requirements to the transfer of prisoners from one penal institution to another, Meachum v Fano, 427 US 215; 96 S Ct 2532; 49 L Ed 2d 451 (1976), reh den 429 US 873; 97 S Ct 191; 50 L Ed 2d 155 (1976), regardless of whether or not the transfers are the result of the inmates’ behavior. Montanye v Haymes, 427 US 236, 242; 96 S Ct 2543; 49 L Ed 2d 466 (1976):

"The Clause does not require hearings in connection with transfers whether or not they are the result of the inmate’s misbehavior or may be labeled as disciplinary or punitive.”

Significantly, the Court did point out in Montanye that "[n]o loss of good time, segregated confinement, loss of privileges, or any other disciplinary measures accompanied the transfer”. (Emphasis added.) 427 US 236, 238. And in Meachum, the Court stated that its holding in Wolff stood. 427 US 215, 225. In the wake of Montanye and Meachum, the Federal courts of appeal have found that Wolff still applies where the prisoner is subjected to disciplinary confinement or segregation. See, for instance, Aikens v Lash, 547 F2d 372, 373 (CA 7, 1976), Bruce v Wade, 537 F2d 850, 854 (CA 5, 1976).

In the instant case, the inmates were originally placed in administrative segregation following a "security classification hearing” as distinguished from a disciplinary hearing. A prison official at the show cause hearing explained:

"MR. MAYNARD: In cases of this nature, generally, they are instructed that this is not — it’s a matter of a security classification hearing and they are not to discuss or talk about the incident — the misconduct — the alleged misconduct or the alleged criminal behavior because it may tend to jeopardize their position in the eventual action. And it’s merely to decide and to inform them of the decision that they are going to be placed in some form of restrictive custody until this matter is settled.”

The hearing at issue here was termed administrative and not disciplinary. Accordingly, the sanction imposed was termed "administrative segregation”. The plaintiffs contend, however, and it is not disputed, that administrative segregation is identical to solitary confinement. In either situation, all privileges and rights are identical.

The warden argues that since the initial hearing was one of reclassification and not disciplinary, those minimal due process protections of Wolff do not apply. Under ordinary circumstances, we would agree that prisoners may be transferred from one prison to another or have their status reclassified without bringing Wolff into play. Under the circumstances presented by this case, however, and regardless of how the warden chooses to characterize it, the initial hearing was, in fact, a disciplinary one since: the initial hearing was instituted after specific acts of misconduct had occurred; the punishment imposed was solitary confinement; and the length of solitary confinement, some eight months, was significantly disproportionate to the penalty of seven days in solitary confinement finally imposed after the plaintiffs were found guilty in a subsequent "disciplinary” hearing. The plaintiffs do not dispute that they received a notice of intent to conduct an administrative hearing concerning their security classification or that such a hearing was held. Rather, they claim that they can establish that the hearing was a sham since they were not allowed to speak in their own defense. The defendant claims that use of this procedure was to protect the plaintiffs from jeopardizing their position in any subsequent criminal action. Despite the explanation which the defendant offers, we find that the plaintiffs made sufficient allegations in their "order for show cause” to support their claim that they had been denied procedural due process.

As support for this position we note that the Legislature has recently recognized that those due process rights which the plaintiffs contend were denied are required when an inmate is punished for violating a prison rule or where a security classification hearing may result in administrative segregation. MCL 791.201 et seq.; MSA 28.2271 et seq., has been amended by the addition of sections 51 and 52 which provide in part:

"Sec. 51. (1) There is created within the department a hearings division. The division shall be under the direction and supervision of the hearings administrator who is appointed by the director of the department.
"(2) The hearings division shall be responsible for each prisoner hearing which the department conducts which may result in the loss by a prisoner of either a right or significant privilege, including but not limited to any 1 or more of the following matters:
"(a) An infraction of a prison rule which may result in punitive detention or the loss of good time.
"(b) A security classification which may result in the placement of a prisoner in administrative segregation. ” (Emphasis added.) MCL 791.251; MSA 28.2320(51).
"Sec. 52. The following procedures shall apply to each prisoner hearing conducted pursuant to section 51(2):
"(a) The parties shall be given an opportunity for an evidentiary hearing without undue delay.
"(b) The parties shall be given reasonable notice of the hearing.
"(c) If a party fails to appear at a hearing after proper service of notice, the hearings officer, if an adjournment is not granted, may proceed with the hearing and make a decision in the absence of the party.
"(d) Each party, shall be given an opportunity to present evidence and oral and written arguments on issues of fact.” (Emphasis added.) MCL 791.252; MSA 28.2320(52).

Thus, regardless of the characterization of the initial hearing, under the newly amended legislation the plaintiffs would have been entitled to present evidence and speak in their own defense.

In taking this position we do not wish to be read as foreclosing prison officials from taking summary action and imposing administrative segregation when there is suspicion or more of an infraction of a prison rule or where other exigent circumstances exist. We can envision many circumstances likely to occur in a prison setting wherein administrative segregation for a short period of time would be proper and necessary and may be imposed without first providing either notice or a hearing. And, in fact, such a procedure would have been proper here were it not for the initial alleged "sham” hearing and the fact that the plaintiffs remained in solitary confinement for some eight months before they were given a full hearing. Under these circumstances, we believe that the plaintiffs’ pleadings in the circuit court allege a deprivation of Federal constitutional rights under color of state law pursuant to 42 USC 1983.

The trial judge held that the plaintiffs failed to exhaust their administrative remedies under the Administrative Procedures Act (APA). This Court has determined that a prison disciplinary hearing is a contested case under the provisions of the APA and the parties to such a hearing are entitled to the procedural safeguards of the act and have the right to judicial review. Lawrence v Dep’t of Corrections, 88 Mich App 167; 276 NW2d 554 (1979). Pursuant to MCL 24.301; MSA 3.560(201), a plaintiff must exhaust administrative remedies before seeking judicial review. Oak Construction Co v Dep’t of State Highways, 33 Mich App 561; 190 NW2d 296 (1971). Exhaustion provides the reviewing court the benefit of a factual record. Saginaw School Dist v United States Dep’t of Health, Education & Welfare, 431 F Supp 147 (ED Mich, 1977). By requiring exhaustion, resort to the courts in the face of available administrative procedures is precluded unless administrative procedures are incapable of providing relief. The exhaustion rule, however, does not apply where it is obvious that to pursue additional procedures would be a useless effort. Welfare Employees Union v Civil Service Comm, 28 Mich App 343; 184 NW2d 247 (1970).

The instant case alleges deprivation of a constitutional right. In Diggs v State Board of Embalmers and Funeral Directors, 321 Mich 508; 32 NW2d 728 (1948), the Michigan Supreme Court held that the exhaustion doctrine does not apply when a controlling constitutional issue is raised. In Diggs, unlike the instant case, the plaintiff asserted that the statute under which the board proceeded was unconstitutional. Here, however, petitioners do not assail the constitutionality of the entire procedural system by which they are to be disciplined. Rather they claim that although they were given a hearing, that hearing was a sham.

Despite this distinction, the rationale that administrative agencies do not have the power to determine constitutional questions is applicable. See Dation v Ford Motor Co, 314 Mich 152; 22 NW2d 252 (1946). The plaintiffs here do not assert that the entire system for reviewing claims of misconduct is not in accord with Wolff and thus unconstitutional but rather that although the rules were followed they were denied due process. If the reviewing authority were to agree with the plaintiffs and find that agency rules had been followed, the constitutional issue concerning whether the plaintiffs were denied due process would remain. The Bureau of Correctional Facilities is not empowered to adjudicate constitutional claims.

Without intimating any view on the merits of the plaintiffs’ allegations, we conclude that they are entitled to an opportunity to offer proof. See Haines v Kerner, 404 US 519; 92 S Ct 594; 30 L Ed 2d 652 (1972).

Reversed and remanded.

       Respondent in its brief below and the trial court in its opinion characterized the plaintiffs’ petition as seeking habeas corpus relief. However, this is clearly an inaccurate characterization since plaintiffs’ petition never mentions habeas corpus.

       In Wolff the Supreme Court addressed, among other questions, whether Nebraska prison disciplinary proceedings complied with the due process clause of the Federal Constitution. The applicable Nebraska statute provided for a range of possible disciplinary action. A finding of flagrant or serious misconduct allowed the chief executive officer to take away a prisoner’s "good-time credit” and confine that person in a disciplinary cell. Since Nebraska had created the right to good time by statute, the prisoner’s interest in that right "is sufficiently embraced within Fourteenth Amendment 'liberty’, to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated”. 418 US 539, 557.