author: Allen, P.J.

text:
    FRENCH v DEPARTMENT OF SOCIAL SERVICES
    Docket No. 78-5301.
    Submitted June 12, 1979, at Lansing.
    Decided October 1, 1979.
    Plaintiff, Lucille French, applied for supplemental security income (SSI) benefits from the Social Security Administration. Pending a determination on the application for SSI benefits, plaintiff received temporary relief funds through the Clare County office of the Michigan Department of Social Services. As a condition for receiving the temporary relief funds, plaintiff was required to sign a reimbursement authorization agreement. Under this agreement, the plaintiff agreed to reimburse the Department of Social Services for the temporary relief funds after she received the applied-for SSI benefits. The agreement did not require the plaintiff to transfer or assign her SSI check to the Department of Social Services.
    The plaintiff for several months received periodic payments of temporary relief from the Social Services office in Clare County. Upon receipt of a lump sum SSI benefit check, plaintiff took the check to the Social Services agent. $9.22 was returned to the plaintiff for the difference between the amount of the SSI benefit check and the amount advanced by the Department of Social Services.
    The plaintiff later decided that the Department of Social Services had improperly accepted the SSI benefit check and requested a refund of the amount which she had reimbursed the department. The refund was refused and a general assistance hearing was held before an administrative law judge.
    • At the hearing, the Department of Social Services was ordered to return the entire amount of the reimbursement to the Social Security Administration in order to allow that agency to determine whether, and in what amount, it should be repaid to the claimant or to the Department of Social Services or Clare County.
    The plaintiff then appealed the ruling of the administrative law judge to the Clare Circuit Court. Paul F. O’Connell, J., affirmed the administrative law judge’s ruling on the basis that it was "not unfair to either party”. The plaintiff appeals. The issue raised on appeal is whether the Department of Social Services’ procedure of having a welfare claimant agree to reimburse the state, after she receives her first SSI benefit check, for advance temporary relief, as a condition of eligibility for such relief, violates a provision of the Social Security Act which states in part that a recipient’s right to future payment shall not be transferrable or assignable or subject to legal process. Held:

      References for Points in Headnotes

       70 Am Jur 2d, Social Security and Medicare § 30.

      The agreement between the Department of Social Services and the plaintiff, as written, was not in violation of the applicable provision of the Social Security Act. The agreement did not require the plaintiff to transfer or assign her SSI check to the department. Rather, the agreement simply required the plaintiff to repay the department in "consideration of the prompt payment of state interim assistance” once she received the SSI check. The agreement tied the reimbursement only to the time of the SSI payment, not to the source of the payment. It cannot be concluded that merely because the plaintiff chose to honor her commitment out of her SSI check that she improperly agreed to transfer or assign her right to future Social Security payments.
    The Department of Social Services did not subject the plaintiff’s SSI benefits to "legal process” in contravention of the Social Security Act. The plaintiff was obligated to repay the debt and the failure of the department to inform the plaintiff that she could resist the collection of the debt by use of legal process from one specific source—the SSI benefits—does not render the payment involuntary.
    The order of the administrative law judge is vacated. The department may keep the funds paid to it by the plaintiff out of her SSI lump sum benefit check.
    1. Social Security and Public Welfare — Benefits — Recipient’s Rights — Future Payments — Transferability — Statutes.
    The rights of a recipient of social security benefits to future payments are neither transferrable nor assignable (42 USC 407).
    2. Social Security and Public Welfare — Benefits — Creditors’ Rights — Statutes.
    No creditor, including the state, may use legal process to reach social security benefits; creditors cannot complain of the recipient’s use, misuse or nonuse of the moneys (42 USC 407).

      3. Social Security and Public Welfare — SSI Benefits — Transfer of Benefits — Assigning Benefits — Legal Process — Statutes.
    An agreement signed by a state welfare recipient which requires the recipient to reimburse the state agency after she receives applied-for supplemental security income (SSI) benefits from the Federal government is a valid agreement to repay a debt to the state where the terms of the agreement neither require the recipient to transfer or assign the SSI benefits to the state agency, but only establish receipt of the SSI benefits as a condition precedent to the obligation to repay, nor subject the recipient’s SSI benefits to "legal process”; the mere fact that the recipient chooses to honor the obligation by turning over her SSI check does not invalidate the agreement as an agreement to assign or transfer SSI benefits (42 USC 407).
    Legal Services of Eastern Michigan (by Ronald B. Eskin), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Janis Meija, Mark S. Meadows and William K Basinger, Assistants Attorney General, for defendant.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, JJ.

       Former Court of Appeals Judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Allen, P.J.

This appeal is taken as of right by plaintiff-appellant, Lucille M. French, from a judgment and order entered by the circuit court affirming the decision of the administrative law judge who ruled that the defendant-appellee, Department of Social Services, was required to return $759.18 to the Social Security Administration of the United States Government, which money the defendant received from the plaintiff pursuant to a "reimbursement authorization agreement”.

On December 17, 1976, plaintiff signed an agreement with the Michigan Department of Social Services in Clare County to reimburse the state for general assistance funds to be paid to plaintiff as temporary relief pending her application for supplemental security income (SSI) benefits under Subchapter XVI of the Social Security Act. The text of the agreement, entitled "Reimbursement Authorization” and completed in accordance with the defendant department’s guidelines, states:

"FOR AND IN CONSIDERATION of the prompt payment of State interim assistance, (assistance furnished to or on behalf of applicants for Supplemental Security Income financed from State or local funds for basic needs during the period in which applications are pending) I hereby authorize the Secretary of Health, Education, and Welfare to make the first payment of Supplemental Security Income benefits for which I am determined to be eligible to receive, for and on my behalf, to the County of Clare, State of Michigan.
"I further authorize the county to deduct from such first payment an amount sufficient as reimbursement for interim assistance paid to me; and after making such deduction, the County shall promptly pay the balance, if any, to me.
"If I receive directly the first payment of Supplemental Security Income benefits for which I am determined eligible, I agree to promptly reimburse the County of Clare, State of Michigan for any duplicated interim assistance advanced while the application for Supplemental Security Income was pending.
"It is understood that in the event of disagreement, I shall have the right to a hearing from the county with respect to such apportionment of such first payment.”

The defendant did not send a copy of this reimbursement authorization agreement to the Secretary of Health, Education and Welfare pursuant to 42 USC 1383(g)(1).

Thereafter, commencing January 4, 1977, until sometime in March, 1977, plaintiff received periodic payments of temporary relief from the defendant totalling $759.18. On April 4, 1977, plaintiff received an SSI lump sum benefit check in the amount of $768.22. She brought the check into the local office of the department and indorsed it over to the defendant’s agent, of which $9.22 was returned to the plaintiff. Plaintiff testified that she repaid the advanced payments out of her SSI check "because I was obligated to do it. Because that was their request.”

Plaintiff apparently decided that defendant improperly accepted the SSI benefit check and requested a refund of the portion of the lump sum payment which was kept by the defendant. A general assistance hearing was held before an administrative law judge after defendant refused to refund the money claimed by the plaintiff.

At the hearing it was determined that according to Department of Social Services’ policy, when a client has a pending SSI claim with the Federal government, the defendant furnishes interim assistance payments while the client is waiting for a decision on the claim. At the same time, the client signs a repayment agreement, promising to repay the local county when the first SSI lump sum check is received by the client.

At the conclusion of the hearing, the defendant was ordered to return the entire amount of the reimbursement to the Social Security Administration in order to allow that agency to determine whether, and in what amount, it should be repaid to the claimant or to the defendant, or Clare County. The circuit court affirmed this decision on the basis that it was "not unfair to either party”. We affirm in part and reverse in part.

The issue presented is one of first impression in this state. It raises the question of whether the defendant’s procedure of having a welfare claimant agree to reimburse the state, when she receives her first SSI benefit check, for advance temporary relief, as a condition of eligibility for such relief, violates 42 USC 407. That section states:

"The right of any person to any future payment under this subchapter shall not be transferrable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process.” 42 USC 407.

This provision was made applicable to SSI benefits. 42 USC 1383(d)(1).

On its face, the all-inclusive § 407 appears to bar defendant from reaching plaintiffs SSI lump sum benefit check. The first clause of § 407 is a limitation on the power of the recipient: his right to any future payment "shall not be transferrable or assignable”. In re Vary Estate, 401 Mich 340, 355; 258 NW2d 11 (1977) (Levin, J., dissenting). With the exception of a particular statutory modification inapplicable in the instant case, it is clear that the plaintiff is prohibited from agreeing to transfer or assign her SSI lump sum benefit check to any creditor, including the defendant Department of Social Services. Philpott v Essex County Welfare Board, 409 US 413; 93 S Ct 590; 34 L Ed 2d 608 (1973). The second clause of § 407 is a limitation on the remedies available to a creditor of the plaintiff to proceed against the money paid to a recipient of social security benefits: defendant cannot reach plaintiff’s SSI lump sum benefit check by subjecting it to "execution, levy, attachment, garnishment, or other legal process”. We have carefully reviewed the "reimbursement agreement” and the applicable law and conclude that under the circumstances presented there was nothing impermissible about either the execution or the fulfillment of the reimbursement agreement between the plaintiff and defendant.

In general, plaintiff claims that her SSI benefits were improperly subject to "legal process” by the Department of Social Services because it conditioned payment of plaintiff’s interim benefits on her acceptance of the reimbursement agreement. In particular, plaintiff contends thát the agreement is not legally enforceable, and the requirement that she sign it as a condition for receiving interim benefits misleads recipients into believing that they have a legal obligation to turn over their SSI lump sum benefit check to the defendant. Plaintiff bases her argument on two Pennsylvania decisions which held under facts similar to those in the case at bar that the failure of the state welfare department to inform the recipients of their right under Philpott to avoid using their social security benefit to repay the state "while not achieved through 'legal process’, was certainly involuntary and not obtained through 'fair means’ ”. Wohlgemuth v Armacost, 18 Pa Commw 394, 400; 336 A2d 455 (1975), St Clair v Commonwealth, 29 Pa Commw 150, 152-153; 370 A2d 751 (1977).

Defendant responds by claiming that its actions were not coercive and that the mere nondisclosure of the plaintiffs Philpott rights is not equivalent to the state’s use of "legal process” to reach the plaintiff’s social security benefits. Moreover, defendant correctly observes that the cases relied on by plaintiff in support of her position on appeal have recently been overruled by the Pennsylvania Supreme Court in Tunnicliff v Commonwealth, Dep’t of Public Welfare, 483 Pa 275; 396 A2d 1168 (1978).

The third paragraph of the reimbursement authorization agreement is the critical passage. It states:

"If I receive directly the first payment of Supplemental Security Income benefits for which I am determined eligible, I agree to promptly reimburse the County of Clare, State of Michigan for any duplicated interim assistance advanced while the application for Supplemental Security Income was pending.”

It is to be noted that this provision does not require the plaintiff to transfer or assign her SSI check to the defendant. Rather, the agreement, simply stated, requires the plaintiff to repay the defendant in "consideration of the prompt payment of state interim assistance” once she receives her SSI check. The plaintiff’s receipt of the check from the Federal government is a condition precedent to her obligation to repay the defendant’s cash advances. If she never receives the SSI check, or is deemed to be disqualified from receiving such benefits, the plaintiff would have no duty to repay the defendant. MCL 400.77; MSA 16.477. The requirement that the reimbursement be tied to the plaintiffs receipt of her SSI benefit check refers only to the time of repayment, not the source of the payment. Tunnicliff v Commonwealth, supra, 396 A2d at 1171, fn 5. Plaintiffs commitment to repay Clare County became binding upon her receipt of her first SSI check. The reimbursement agreement does not state where plaintiff is to obtain the money to meet this commitment. Therefore, we conclude that the reimbursement agreement was not an impermissible agreement under 42 USC 407, to transfer or assign any future payment of social security benefits. We might have reached the opposite result if the agreement had specifically required plaintiff to turn over her SSI check to defendant in fulfillment of her repayment obligation. However, where as here, plaintiff executed a commitment to repay the interim benefits in accordance with her statutory obligation (MCL 400.77; MSA 16.477) and agreed when she was to repay it, it should not be concluded that merely because she chose to honor her commitment out of her SSI check that she improperly agreed to transfer or assign her right to future social security payments.

Likewise, we conclude that the defendant did not subject plaintiffs SSI benefits to "legal process” in contravention of § 407. There is nothing in the record which suggests that the plaintiff was intimidated, coerced, or pressured into indorsing her check over to the defendant. And while it can be assumed that the plaintiff may have felt somewhat powerless to "buck the system”, it does not follow that the defendant’s behavior constituted subjecting the plaintiff’s benefits to "legal process”.

First, it must be noted that the holding in Philpott v Essex County Welfare Board, supra, is inapposite in the instant case. In Philpott, the Supreme Court noted that the mere filing of the reimbursement agreement had the same effect as entry of a formal judgment under New Jersey law at that time, and that the defendant State Department of Public Welfare had begun legal proceedings to attach the plaintiff’s bank account in which the plaintiff’s social security benefits had been deposited; No such formal or quasi-formal legal action was ever initiated by the defendant in the instant case. Moreover, the doctrine of ejusdem generis used in the construction of statutes suggests that the use of the general phrase "other legal process” following an enumeration of specific things (e.g"execution, levy, attachment, garnishment”) is to be held to refer to things of the same general character as those specified. People v Powell, 280 Mich 699, 704; 274 NW 372 (1937). Whatever oppressive or intimidating effect the involvement of the "state” may have had in the plaintiff’s decision to use her SSI check to repay her debts, it cannot be construed as constituting "legal process” within the meaning of 42 USC 407.

Second, as noted above, the reimbursement agreement did not involve either an assignment or transfer of future rights by the plaintiff. Rather, the plaintiff agreed, as required by state law (MCL 400.77; MSA 16.477), to repay her "debt” to the state from whatever source, once she had received her first SSI check. The fact that defendant tied the timing of repayment to plaintiff’s receipt of her first SSI check illustrates its recognition of the practicalities of recouping the advanced interim benefits while at the same time fulfilling the purposes of the Social Security Act. Therefore, we conclude that the defendant did not act improperly in requiring plaintiff to sign the reimbursement agreement and then accepting repayment for her legal obligation out of her first SSI benefit check. Hence, we adopt the reasoning recently used by the Supreme Court of Pennsylvania to Uphold a similar reimbursement arrangement. Tunnicliff v Commonwealth, Dep’t of Public Welfare, 483 Pa 275; 396 A2d 1168 (1978).

In Tunnicliff the Pennsylvania Supreme Court was faced with a similar reimbursement agreement executed between the State Department of Public Welfare (DPW) and the plaintiffs-recipients. Plaintiffs-appellants repayed out of their first SSI lump sum benefit check the amount received by them as temporary assistance, as in the case at bar. In rejecting appellants’ contention that the DPW employed impermissible tactics for collecting its debt the Tunnicliff Court observed:

"In the instant case the payment made to DPW by appellants was voluntary even though they may have been under the impression that they were legally obligated to pay the debt. The fact is they were so obligated! The instruments signed by appellants committed them to repay the interim assistance. They did not delineate the source of that repayment. Had appellants received an inheritance or won the lottery, these sources could have been reached even by legal process to enforce the obligation imposed by the loan agreements, and Philpott does not suggest otherwise. The mere failure of DPW to inform appellants that they might assert their Philpott rights and resist the collection of the debt by use of the legal process from the one specific source—the SSI benefits—does not render the payment involuntary. We cannot accept appellants’ position that DPW has an affirmative duty to inform its debtors of methods of evading their legitimate debts. To hold otherwise would provide a windfall to those eligible for federal benefits but whose federal benefits are delayed, thus encouraging 'double-dipping’ at the expense of the taxpayers.” (Footnotes omitted.) (Emphasis in original.) 483 Pa at 281-282; 396 A2d at 1171.

Accordingly, we vacate the order of the administrative law judge and rule that the defendant department may keep the money paid to it by plaintiff out of her SSI lump sum benefit check for subsequent repayment to the appropriate government agencies as required by law.

No costs, a public question.

       Pub L 92-603 § 301, effective January 1, 1974; 42 USC 1381, et seq.

       As a result of the defendant’s failure to communicate with the Secretary of HEW regarding the plaintiffs execution of the reimbursement agreement it was precluded from recouping, directly from the Secretary, the money subsequently advanced to the plaintiff as interim assistance, pursuant to 42 USC 1381(g)(1). Therefore, under the circumstances presented, we conclude that the first two paragraphs of the reimbursement agreement provide no basis upon which defendant can rightfully claim direct recoupment from the Federal government of moneys advanced by defendant to plaintiff.

       See footnote 2.

         The underlying principle of the social security system is to protect the beneficiaries from the hardships of existence, United States v Silk, 331 US 704, 711; 67 S Ct 1463; 91 L Ed 1757 (1947), In re Vary Estate, supra, at 344-346. At the same time, the purpose of § 407 of the Social Security Act is to protect the benefits recipient and those dependent on him from claims of creditors. Brown v Brown, 32 Ohio App 2d 139; 288 NE2d 852 (1972). Since recipients of SSI benefits have only minimal resources, 42 USC 1382(a), and since those recipients have a legal obligation to reimburse the state for the interim payments, it follows that tying plaintiffs repayment obligation to the time when she receives her first SSI lump sum benefit check comports with both the spirit and letter of Federal and state mandates.


source: Caselaw Access Project

author: J. H. Gillis, P.J.

license: Public Domain

text:
    WILNER v DEPARTMENT OF LICENSING & REGULATION, BOARD OF REGISTRATION FOR ARCHITECTS
    Docket No. 78-5392.
    Submitted June 14, 1979, at Detroit.
    Decided October 1, 1979.
    Ronald R. Wilner failed to pass the building construction section of a seven-part examination given on December 10, 1974, by the State Board of Registration for Architects. Upon review the board declined to change his score. In 1973, the board had changed the seven-part examination to a two-part examination but allowed applicants until December, 1974, to pass the remainder of the former seven-part examination. Candidates who did not pass the seven-part examination by December, 1974, were required to sit for the new two-part examination. Wilner received notice of the changes in the examination format. Appeal to the Oakland Circuit Court, William J. Beer, J., resulted in an affirmation of the board’s decision not to change his score. Plaintiff appeals, contending that he is entitled to continue to take the old seven-part examination, that the decision of the board affirming his failure of the building construction part was not supported by competent material and substantial evidence, that some of the questions related only to aesthetics which were not relevant to the purposes of the examination, and that the board’s delay in scheduling a formal review of his examination constituted a denial of due process. Held:

    1. The board is vested with broad discretion to determine the format and contents of its examination and to change from a seven-part to a two-part examination is well within its statutory authority. The grace period was a matter within the board’s discretion and gave no person a vested right to continue to take the old examination.
    2. The Court of Appeals declines to order an examinee certified when in the judgment of the certifying board his performance does not meet the standard of the profession. Nor will the appellate Court sit as a superexamining board.

      References for Points in Headnotes

       5 Am Jur 2d, Architects § 2.

       51 Am Jur 2d, Licenses and Permits § 14.

       [No Reference]

      3. Public welfare embraces aesthetic as well as physical principle; therefore, aesthetic questions may be made part of the board’s examination for the registration of architects.
    4. The delay in scheduling formal review of plaintiffs examination was not a denial of due process. There was no showing of prejudice and a significant part of the total delay was attributable to the plaintiff himself.
    Affirmed.
    1. Licenses — Registration — Architects — State Board — Examinations — Format and Contents — Discretion.
    The State Board of Registration for Architects is vested with broad discretion to determine the format and contents of its examinations for registration.
    2. Licenses — Registration — State Board — Standards of Profession — Appeal and Error.
    It is not the province of the Court of Appeals to order an examinee certified where in the judgment of the certifying board his performance does not meet the standard of the profession; furthermore, the Court of Appeals refuses to sit as a superexamining board.
    3. Licenses — Registration — Architects — State Board — Examinations — Aesthetic Questions.
    The concept of public welfare has been broadly defined to embrace aesthetic as well as physical principles; therefore, aesthetic questions may be asked as part of an examination by the State Board of Registration for Architects.
    4. Licenses — Registration — Architects — State Board — Examinations — Review of Results — Delay — Prejudice.
    A delay in scheduling formal review of the results of an examination by the State Board of Registration for Architects is not a denial of due process where part of the total delay was attributable to the examinee and there is no showing of prejudice.

      Pasman & Weinstein, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gary L. Finkbeiner, Assistant Attorney General, for defendant.

      Before: J. H. Gillis, P.J., and Beasley and R. M. Ransom, JJ.

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

   J. H. Gillis, P.J.

On December 10, 1974, plaintiff took a seven-part examination to be registered as an architect. Plaintiff passed six of the seven parts but failed to pass the building construction part of the examination. Plaintiff requested that he be allowed to retake the portion of the examination which he had failed but the Board of Registration for Architects refused this request. Following informal and formal review of plaintiff’s examination, the board declined to change his score.

Plaintiff appealed to the Oakland County Circuit Court. The circuit court affirmed the board’s order and plaintiff appeals to this Court as of right.

Additional facts necessary for an understanding of this case are as follows: In March, 1973, the Board of Registration for Architects decided to replace the seven-part examination with a new two-part examination. A candidate who successfully passed any section of the seven-part examination would not be required to retake those portions. Applicants who passed four of the seven parts of the old examination by July 1, 1973, were given until December, 1974, to pass all seven sections. Those candidates who did not pass all seven parts by that time would be required to sit for the new examination. The new examination was given concurrently with the old examination in June and December of 1973 and 1974. Notices of these changes in the examination format were given to all candidates including plaintiff.

Plaintiff first contends that he was entitled to continue to take the old examination. Plaintiff bases his argument upon certain language in § 12(1) of the Architecture, Professional Engineering and Land Surveying Act, MCL 338.562(1); MSA 18.84(12)(1), to-wit:

"A person who has commenced the taking of examinations provided under this act shall be permitted to complete the taking of those examinations notwithstanding any provisions hereto to the contrary.”
When this language is examined in context it fails to sustain plaintiffs position. The entire subsection reads as follows:
"An applicant for examination for registration shall * * * have had not less than 8 years of professional experience in architectural or engineering work or land surveying, satisfactory to the board including up to 6 years of education satisfactory to the board.
"Beginning January 1, 1977, an applicant for registration shall have a baccalaureate degree acceptable to the board. A person who has commenced the taking of examinations provided under this act shall be permitted to complete the taking of those examinations notwithstanding any provisions hereto to the contrary.” MCL 338.562(1); MSA 18.84(12X1).

The first sentence of paragraph two was added by 1969 PA 141. The added requirement of a baccalaureate degree was a substantial change from the previous licensure requirements. The last sentence of the subsection was added by 1970 PA 20.

It is evident that the Legislature intended by this language to allow persons who had commenced taking the registration examinations prior to January 1, 1977, to continue to sit for the examinations after that date even if they did not possess a baccalaureate degree. This "grandfather” clause does not apply to plaintiff. Moreover, it merely allows nondegreed applicants to continue to take the registration examinations and does not preclude the board from adopting a new examination format.

The board is vested with broad discretion to determine the format and contents of the examinations. Section 12(2) of the act provides:

"An applicant upon payment of the fees required under this act shall be granted examinations in such appropriate subjects as the board may require.” MCL 338.562(2); MSA 18.84(12)(2).

Section 14 provides in part:

"When examinations are required, they shall be held at such time and place as each board shall determine. The scope of the examinations and the methods of procedure shall be prescribed by each board with special reference to the applicant’s ability to design and supervise architectural, engineering, or land surveying works, which shall insure the safety of life, health, and property.”

The board’s decision to change from a seven-part to a two-part examination was well within its express authority under the above provisions.

The grace period given to those who passed four of the seven parts of the old examination by July 1, 1973, was not mandated by statute, but, rather, was a matter within the board’s discretion. No person had a vested right in continuing to take the old examination.

Plaintiff also contends the decision of the board affirming his failure of the building and construction examination was not supported by competent, material and substantial evidence on the whole record. Plaintiff’s argument is that some of the multiple choice questions had two correct answers and others were related only to aesthetics and, therefore, not relevant to the purpose of the examination, which is to safeguard the life, health and property of the people of Michigan. MCL 338.551; MSA 18.84(1).

It is not the province of this Court to order an examinee certified when in the judgment of the certifying board his performance does not meet the standard of the profession. Nor can this Court sit as a superexamining board. Nemer v State Board of Registration for Architects, Professional Engineers & Land Surveyors 5 Mich App 286, 295; 146 NW2d 704 (1966).

Plaintiff attempted to challenge a number of questions through the testimony of a registered architect. The hearing examiner and board found the grounds upon which these questions were challenged to be insubstantial. Our review of this testimony leads us to the same conclusion.

Plaintiff’s argument that questions relating to aesthetics were irrelevant is without merit. The concept of public welfare has been broadly defined to embrace aesthetic as Well as physical principles. 16 Am Jur 2d, Constitutional Law, § 307, p 603.

Finally, plaintiff claims that the board’s delay in scheduling a formal review constituted a denial of due process. Plaintiff did not request a formal review until December, 1975. At that time the board was involved with the regularly scheduled examination. Formal review was scheduled for October, 1976, and later adjourned until December, 1976. Thus, a significant part of the total delay was attributable to plaintiff himself. In addition, plaintiff has failed to show any prejudice resulting from this delay.

Plaintiff’s remaining allegations of error merit no discussion.

Affirmed. Costs to appellee.


text:
    OWENDALE-GAGETOWN SCHOOL DISTRICT v STATE BOARD OF EDUCATION
    Docket No. 43960.
    Submitted August 27, 1979, at Detroit.
    Decided October 1, 1979.
    Leave to appeal applied for.
    In 1975, Keith J. Goslin and other residents of the Owendale-Gagetown School District petitioned the Huron and Tuscola Intermediate Boards of Education seeking to have certain property transferred to the Cass City School District. The petition was denied by the intermediate boards. The State Board of Education reversed that denial and approved the transfer in an order dated May 19, 1976.
    Subsequently, plaintiff Owendale-Gagetown School District brought an action in Ingham Circuit Court against the State Board of Education alleging, inter alia, that the property transfer, when combined with other property already transferred out of the district, exceeded 10% of the latest available taxable valuation of the district and, therefore, a vote of the people of the plaintiff district was required to effectuate the transfer in question. The circuit court, James T. Kallman, J., reversed the ruling of the State Board of Education, holding that the 10% statutory requirement is cumulative. The defendant appealed. In an unpublished per curiam opinion (Docket No. 29768, released August 15, 1977), the Court of Appeals reversed the circuit court on the limited ground that the plaintiff school district lacked standing to raise the question of whether its residents were entitled to vote on the property transfer in question. The plaintiff sought leave to appeal to the Michigan Supreme Court, which was denied. 401 Mich 818 (1977). Plaintiff thereafter moved for a rehearing, which was treated as a motion for reconsideration. The motion was denied. 402 Mich 841 (1977). The plaintiff petitioned the United States Supreme Court for a writ of certiorari. The petition was denied. 436 US 906; 98 S Ct 2237; 56 L Ed 2d 404 (1978).
    On October 11, 1978, the circuit court granted the plaintiff’s motion to add Ronald Erickson and other electors of the district as parties plaintiff. On February 6, 1978, the circuit court granted a motion by Keith J. Goslin and others to intervene as parties defendant. On October 11, 1978, the trial court issued an opinion, but never entered an order, remanding the cause to the State Board of Education for further proceedings consistent with the circuit court’s 1976 opinion.

      References for Points in Headnotes

       20 Am Jur 2d, Courts § 189.

       73 Am Jur 2d, Statutes § 194.

       68 Am Jur 2d, Schools § 67.

      On January 11, 1979, the defendant State Board of Education moved to vacate the trial court’s 1978 opinion and to vacate stays of judicial proceedings. Subsequently, the trial court issued its opinion acting on the defendant’s motion to quash the 1978 opinion of the trial court. In this last opinion, the trial court incorporated its two previous opinions and, in effect, held that the parcels of land owned by Keith J. Goslin and others remained in the Owendale-Gagetown School District. An order was entered in conformance with this latter opinion. The defendant State Board of Education appeals. The issue is whether a vote of the residents of a school district is required to effectuate a transfer of property to another district where the value of the property in question does not exceed 10% of the taxable valuation of the entire school district but the aggregate value of property previously transferred and that sought to be transferred does exceed 10%. Held:

    The unambiguous language of the statute in question refers to "the area to be detached”. This language has reference only to the property of the petitioning landowners. It cannot properly be read to include property which previously had been detached from the district pursuant to other petitions. The lower court erred in cumulating the value of the prior transfers and in utilizing that sum to trigger the popular vote requirement of the statute.
    Reversed.
    1. Courts — Michigan Supreme Court — Case Precedent — Reasons for Denial of Leave to Appeal — Court Rules.
    The reasons for denial of leave to appeal by the Michigan Supreme Court are not to be regarded as precedent in any of the courts of the state (GCR 1963, 904[4]).
    2. Statutes — Construction of Statutes — Unambiguous Statutes.
    The bare reading of a statute suffices and no interpretation is necessary where the language employed in the statute is plain, certain and unambiguous.

      3. Schools and School Districts — Transfer of Property — Statutes.
    The statute controlling the transferring of territory from one school district to another requires that the action of the board directing a detachment of territory must be approved by an affirmative vote of the majority of the school tax electors of that district, voting thereon, "whenever the latest available taxable valuation of the area to be detached is more than 10% of the latest available taxable valuation of the entire school district from which it is to be detached”; the statutory reference to "the area to be detached” refers only to the property being detached- at a given time and cannot properly be read to include property which previously has been detached from the district pursuant to other petitions (MCL 340.461; MSA 15.3461).

      James F. Schouman and Mark W. Chessman, for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gerald F. Young and Charles F. Keeley, Assistants Attorney General, for defendant.
    Before: J. H. Gillis, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   J. H. Gillis, P.J.

This case involves the transfer of property between two school districts on the petition of resident landowners. The State Board of Education appeals as of right from a February 16, 1979, order of the Ingham County Circuit Court reversing a May 19,1976, order of the Board which had approved the transfer of certain property in the Owendale-Gagetown School District to the Cass City School District.

Early in 1975, the intervening defendants, residents of the Owendale-Gagetown School District, petitioned the Huron and Tuscola Intermediate Boards of Education pursuant to the School Code of 1955, MCL 340.1 et seq.; MSA 15.3001 et seq., seeking to have their property transferred to the Cass City School District. The petition was denied by the intermediate boards on May 11, 1975. The State Board reversed that denial and approved the transfer in an order dated May 19, 1976.

On June 18, 1976, the plaintiff commenced suit against the State Board in Ingham County Circuit Court alleging, inter alia, that the property transfer was in violation of MCL 340.461; MSA 15.3461, presently MCL 380.951; MSA 15.4951. The school district charged that the petitioner’s property, when combined with other property already transferred out of the district, exceeded 10% of the latest available taxable valuation of the district. It was argued that a vote of the people was required to effectuate the transfer in question pursuant to the above statute.

In an opinion dated August 2, 1976, the Ingham Circuit Court reversed the State Board’s order, holding that the 10% requirement is cumulative; that is, the value of all property previously transferred out of the district as well as that sought to be transferred must be considered. If that sum exceeds 10% of the latest assessed valuation of the entire school district a popular vote is required to properly effect the transfer.

The State Board appealed that decision as of right. In an unpublished per curiam opinion, this Court reversed the lower court on the limited ground that the school district lacked standing to raise the question of whether its residents were entitled to vote on the property transfer in question. Owendale-Gagetown School District v State Board of Education, (Docket No. 29768, decided August 15, 1977 [unreported]). The Court did not decide the propriety of the circuit court’s ruling.

Plaintiff sought leave to appeal to the Supreme Court, which was denied. 401 Mich 818 (1977). Plaintiff thereafter moved for rehearing, which was treated as a motion for reconsideration. The motion was denied. 402 Mich 841 (1977). The order denying the motion addressed the issue left undecided by this Court:

"MCL 340.461; MSA 15.3461 provides for a vote of the school tax electors on a transfer only when 'the latest available taxable valuation of the area to be detached is more than 10% of the latest available taxable valuation of the entire school district from which it is to be detached.’ The record discloses that the latest available tax valuation of the area to be detached in this case is less than 10% of the Owendale-Gagetown School District as constituted at the time of the State Board of Education decision.” 402 Mich at 842.

On March 21, 1978, plaintiff school district petitioned the United States Supreme Court for a writ of certiorari. The petition was denied on May 15, 1978. 436 US 906; 98 S Ct 2237; 56 L Ed 2d 404 (1978).

On October 11, 1978, the circuit court granted a motion by the district to add several electors of the district as parties plaintiff. On February 6, 1978, the trial court granted a motion by Keith Goslin and others to intervene as parties defendant. On October 11, 1978, the court issued an opinion, but never entered an order, that the cause should be remanded to the State Board of Education for further proceedings consistent with its 1976 opinion.

On January 11, 1979, the State Board of Education moved to vacate the trial court’s opinion of October 11, 1978, and to vacate stays of judicial proceedings and stays of property transfers.

On February 14, 1979, the trial court issued its opinion acting on defendant-appellant’s motion to quash its earlier opinion of October 11, 1978. In this last opinion the court incorporated its two previous opinions of August 2, 1976, and October 11, 1978, and, in effect, held that the Keith Goslin, et al., parcels of land remained in Owendale-Gagetown School District. On February 16, 1979, an order was entered in conformance with this latter opinion.

MCL 340.461; MSA 15.3461 provides:

"The county board of education may, in its discretion, detach territory from 1 district and attach it to another when requested to do so by resolution of the board of any district whose boundaries would be changed by such action, or when petitioned by not less than 2/3 of the resident owners of the land to be transferred. The county board of education shall take final action in regard to the resolution or petition within a period of 60 days of the receipt of the resolution or petition. Only territory contiguous to a district may be transferred. Whenever the latest available taxable valuation of the area to be detached is more than 10% of the latest available taxable valuation of the entire school district from which it is to be detached, the action of the county board of education directing such detachment shall not be valid unless approved, at an annual or special election called for that purpose in the district from which the detachment is to be made, by an affirmative vote of a majority of the school tax electors of the district, voting thereon.” (Emphasis supplied.)

The issue presented is whether the statute requires a vote of the residents of a school district to effectuate a transfer of property to another district where the value of the property in question does not exceed 10% of the taxable valuation of the entire school district but the aggregate value of property previously transferred and that sought to be transferred does exceed 10%. We find that it does not.

Initially, we note that the question is not controlled by the Supreme Court’s order denying plaintiffs motion for reconsideration. Reasons for denial of leave to appeal are not to be regarded as precedent in any of the courts of this state. GCR 1963, 904(4).

If the language employed in a statute is plain, certain and unambiguous, a bare reading suffices and no interpretation is necessary. Dussia v Monroe County Employees Retirement System, 386 Mich 244, 248; 191 NW2d 307 (1971).

The unambiguous language of the statute refers to "the area to be detached”. This language has reference only to the property of the petitioning landowners. It cannot properly be read to include property which previously has been detached from the district pursuant to other petitions. The lower court erred in cumulating the value of the prior transfers and in utilizing that sum to trigger the popular vote requirement of the statute.

The value of the property in question being less than 10% of the latest available taxable valuation of the entire school district, the State Board properly ordered detachment absent an affirmative vote of majority of the school tax electors of the plaintiff school district.

Plaintiff also argues that the action of the State Board was arbitrary and capricious and therefore constituted an abuse of discretion. This issue will not be considered on this appeal; it was held abandoned on the previous appeal to this Court. Owendale-Gagetown School District v State Board of Education, (Docket No. 29768, decided August 15, 1977 [unreported]), fn 2.

Reversed. No costs, a public question being involved.

       Repealed by the School Code of 1976, effective January 1, 1977. 1976 PA 451, MCL 380.1 et seq.; MSA 15.4001 et seq.


author: Per Curiam.

text:
    DOREY v SAVAGE
    Docket No. 78-808.
    Submitted December 21, 1978, at Detroit.
    Decided October 2, 1979.
    Gordon Dorey’s parked automobile was hit and damaged by an unidentified motorist who was driving a car owned by Frederick M. Savage without the owner’s permission. Dorey’s car was covered under compulsory no-fault insurance but was not insured under an optional collision policy which would have covered his damage. Dorey could not recover his loss from his own carrier, having no collision insurance, nor from the owner or driver of the other vehicle. He brought an action in Common Pleas Court of Detroit against Frederick M. Savage, owner of the other car, John Doe, as the unidentified driver, and Richard H. Austin, Secretary of State, seeking to recover under the Motor Vehicle Accident Claims Act (MVACA). Judgment for plaintiff, Theresa Doss, J. The Secretary of State appealed to Wayne Circuit Court where the Common Pleas judgment was affirmed, Joseph G. Rashid, J. Defendant, Secretary of State, appeals by leave granted, contending that the provisions of the no-fault automobile act preclude plaintiff’s recovery from the MV ACA fund. Plaintiff argues that the fund is liable because he has no collision coverage and no source of recovery under the no-fault act. Held:

    1. The MV ACA established a fund, to be treated as a state-administered insurance fund, to compensate persons injured as a result of the negligent operation of a motor vehicle by an uninsured motorist. A plaintiff cannot recover from the fund for anything covered under his no-fault automobile policy which requires the owner of a motor vehicle to have personal, property and residual liability protection. There is no mandatory requirement in the no-fault statute that optional collision insurance be carried; therefore, having no source of recovery for his automobile damage under collision insurance or no-fault, plaintiffs damages are not precluded by the provisions of the no-fault act and he has a valid and collectible claim from the MV ACA fund.

      References for Points in Headnotes

       Am Jur 2d, New Topic Service, No-Fault Insurance § 34.

       [No Reference]

       Am Jur 2d, New Topic Service, No-Fault Insurance § 4.

       [No Reference]

      2. The no-fault act makes no mention of how property damage is to be dealt with where automobile accident damages are not recoverable. While an optional collision policy would have covered plaintiffs loss, there is no specific legislative indication or expression of intent in the no-fault act or in amending legislation which would support an inference that the MV ACA should be excused from liability.
    Affirmed.
    1. Insurance — No Fault Insurance — Automobiles — Personal Protection — Property Protection — Liability Insurance.
    The owner of a motor vehicle is required to maintain an insurance policy containing coverage for personal protection insurance, property protection insurance, and residual liability insurance as defined in the no-fault act.
    2. Insurance — No Fault Insurance — Automobiles — Motor Vehicle Accident Claims Act.
    The Motor Vehicle Accident Claims Act (MVACA) precludes a plaintiffs recovery from the MV ACA fund for anything required to be covered under his no-fault automobile policy.
    3. Insurance — No Fault Insurance — Automobiles — Optional Collision Coverage.
    Collision insurance is an option to be paid for by the owner of a motor vehicle or he may underwrite his own risk by refusing such additional coverage; therefore, there is no mandatory requirement that collision insurance coverage be carried in addition to no-fault insurance coverage.
    4. Insurance — No Fault Insurance — Automobiles — Optional Collision Insurance — Property Damage — Motor Vehicle Accident Claims Fund.
    The motor vehicle accident claims fund is liable to an owner of a parked automobile who has no-fault insurance but no optional collision coverage where an unknown driver, driving without permission, hits and damages the parked automobile.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Joseph A. Bilitzke and Regina A. King, Assistants Attorney General, for defendant Secretary of State.

      Morbach, Cheatham & MacArthur (by Paul F. Ray), for plaintiff.
    Before: M. F. Cavanagh, P.J., and Bashara and Allen, JJ.
   Per Curiam.

On September 24, 1974, plaintiff’s parked automobile was hit and damaged by a car owned by Frederick M. Savage and driven by an unidentified motorist. Plaintiff’s car was covered under the compulsory no-fault insurance provisions, MCL 500.3101 et seq.; MSA 24.13101 et seq., but was not insured under an optional collision policy that would have covered this damage.

Suit was commenced in Common Pleas Court. It was there determined that the unknown driver had been driving without owner Savage’s permission. Plaintiff could not claim against Savage’s insurance and, because he also could not recover under his own insurance nor from the unidentified motorist, plaintiff sought to recover under the Motor Vehicle Accident Claims Act (MV AC A), MCL 257.1101 et seq.; MSA 9.2801 et seq.

Defendant Secretary of State argued below that 223 PA 1974 amended MCL 257.1105; MSA 9.2805 to preclude plaintiff from recovery under the MVAC A. The relevant portion of the section follows:

"A payment shall not be made under this act for an accident occurring after the effective date of this amendatory act to an owner or registrant of a motor vehicle for which security under sections 3101 to 3179 of Act No. 218 of the Public Acts of 1956, as amended, is required.”

Sections 3101 through 3179 refer to the no-fault act.

Plaintiff contended that the sentence did not apply since collision insurance is not a security required under no-fault. MCL 500.3101; MSA 24.13101; MCL 500.3131; MSA 24.13131.

The judgment for the plaintiff in Common Pleas was affirmed on appeal to the Wayne Circuit. Upon application by the Secretary of State, this Court granted leave.

In 1968, the MV ACA established a fund, the purpose of which was to compensate a person injured as a result of negligent operation of a motor vehicle by an uninsured motorist. It was remedial legislation aimed at aiding the innocent injured party. Lisee v Secretary of State, 388 Mich 32, 44-45; 199 NW2d 188 (1972). This Court has likened the MV AC A provision to a state-administered insurance fund with its primary beneficiaries being those injured by the uninsured. Bray v Department of State, 69 Mich App 172, 178; 244 NW2d 619 (1976), lv den 397 Mich 851 (1976). Whether the plaintiff here can avail himself of this fund is the question. The answer, as the lower court stated, "depends on whether or not plaintiff was required to have security for his vehicle under sections 3101 to 3179 of 1956 PA 218, as amended”.

By virtue of § 3101 of 1956 PA 218, the owner of a motor vehicle, plaintiff herein, is required to maintain an insurance policy containing coverage for personal protection insurance, property protection insurance, and residual liability insurance as defined in the no-fault act. It must first be determined whether plaintiff was required to maintain property protection insurance with regards to this kind of accident.

Section 3123 declares:

"(1) Damage to the following kinds of property is excluded from propérty protection insurance benefits:
"(a) Vehicles * * * unless the vehicle is parked in a manner as not to cause unreasonable risk of the damage which occurred.
"(b) Property owned by a person named in a property protection insurance policy * * * if the person named * * * was the owner [or] registrant * * * of a vehicle involved in the motor vehicle accident out of which the property damage arose.”

The court below interpreted this provision to mean that while an owner of a motor vehicle must maintain in full force and effect a no-fault insurance policy, such policy need not mandatorily provide collision insurance coverage. Collision insurance is an option to be paid for by the owner or the owner may underwrite his own risk by refusing such additional coverage. We agree with this interpretation. The 1974 amendment to the Motor Vehicle Accident Claims Act precludes plaintiff from recovery for anything required to be covered under his no-fault policy. This claim falls outside the required policy provisions.

Another reason we are persuaded this claim should lie against the MV AC A is that MCL 257.1115; MSA 9.2815 did render the fund liable under the facts here present. This provision is not specifically dealt with in no-fault or in any amending legislation. While an optional collision policy would have covered the situation, there is no specific indication that this was the Legislature’s way of excusing the MVACA’s liability. There is no mention in the no-fault act of how property damage is to be dealt with where the offending driving is not recoverable. Since the Legislature felt it necessary to cover such a situation under the MV AC A and has not similarly dealt with the issue under no-fault, we decline to infer a legislative intent to remove the fund’s liability to this plaintiff. We do note that the Legislature subsequently clearly limited the fund’s liability to accidents occurring prior to January 2, 1976. MCL 257.1133; MSA 9.2833.

For the foregoing reasons, we affirm. No costs.


text:
    PEOPLE v PERRY
    Docket No. 78-1875.
    Submitted September 4, 1979, at Detroit.
    Decided October 2, 1979.
    Leave to appeal applied for.
    Pamela J. Perry was charged with two counts of possession of a firearm in the commission of a felony. The Recorder’s Court of Detroit, Robert L. Evans, J., dismissed the charges, finding no evidence that the defendant was actually in possession of a firearm during the transaction in question. The people appeal, alleging that the felony-firearm statute is constitutional and that a person may be found guilty of aiding and abetting one who violates the felony-firearm statute. Held:

    1. The felony-firearm statute is constitutional.
    2. A person not in possession of a firearm may be charged with aiding and abetting one who actually possesses a firearm during the commission of a felony.
    Reversed and remanded.
    1. Criminal Law — Felony-Firearm Statute — Constitutional Law.
    The felony-firearm statute, which provides for enhanced punishment where a felony is committed with a firearm, is constitutional (MCL 750.227b; MSA 28.424[2]).
    2. Criminal Law — Felony-Firearm Statute — Aiders and Abettors.
    A person not in actual possession of a firearm may be charged, under the felony-firearm statute, with aiding and abetting one who does possess a firearm in the commission of a felony (MCL 750.227b, 767.39; MSA 28.424[2], 28.979).
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 182, 183, 186.
    Construction and application of provision of Omnibus Crime Control and Safe Streets Act of 1968 (18 USCS § 924(c)) that person who uses firearm to commit, or carries firearm unlawfully during commission of federal felony, shall be sentenced to term of imprisonment in addition to punishment provided for such felony. 25 ALR Fed 678.

       21 Am Jur 2d, Criminal Law §§ 119, 122.

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

      Daniel J. Blank, for defendant.
    Before: Bashara, P.J., and J. H. Gillis and V. J. Brennan, JJ.
   Per Curiam.

The people appeal from an order of the Detroit Recorder’s Court dismissing two counts of possessing a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2).

Two issues are presented on appeal: (1) whether the felony-firearm statute is constitutional, and (2) whether one not in actual possession of a firearm may aid and abet a person who violates the felony-firearm statute.

The Supreme Court has recently disposed of the first issue, upholding the constitutionality of the felony-firearm statute in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

The second issue is one which has divided two panels of this Court. Compare People v Powell, 90 Mich App 273; 282 NW2d 803 (1979), and People v Tavolacci, 88 Mich App 470; 276 NW2d 919 (1979).

It is our opinion that the proper application of the aiding and abetting statute, MCL 767.39; MSA 28.979, to the felony-firearm statute requires us to hold that one not in actual possession of a firearm may be charged with aiding and abetting one who does possess a firearm.

The felony-firearm statute requires that a person carry or have in his possession a firearm at the time he commits or attempts to commit a felony.

The aider and abettor statute provides that:

"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.”

There is no langauge in either the felony-firearm statute or the aider and abettor statute which limits the application of one to the other. People v Tavolacci, supra. Further, the aider and abettor statute has been applied previously to possessory crimes. People v Doemer, 35 Mich App 149; 192 NW2d 330 (1971).

We therefore reinstate the charges brought under MCL 750.227b; MSA 28.424(2).

Reversed and remanded.


text:
    DINGEMAN ADVERTISING, INC v TOWNSHIP OF SAGINAW
    Docket No. 78-2174.
    Submitted February 14, 1979, at Lansing.
    Decided October 2, 1979.
    Leave to appeal applied for.
    Plaintiff, Dingeman Advertising, Inc., requested permission from Saginaw Township, an unchartered Michigan township with a population of less than 50,000, for permission to build outdoor advertising billboards. The township has an ordinance prohibiting off-premises outdoor advertising billboards. The plaintiffs request was denied in spite of the fact that the plaintiff had been granted permits by the state to erect billboards in Saginaw Township. Following the denial, the plaintiff brought an action in Saginaw Circuit Court against the Township of Saginaw and Walter Loth, Zoning Administrator for the Township of Saginaw, seeking to have the ordinance declared invalid and to compel the issuance of construction permits.
    The trial court, Gary R. MacDonald, J., held that the zoning ordinance relied upon by the defendants was preempted by the Highway Advertising Act, which occupies the whole field of regulation and controls signs and sign structures in townships having a population of less than 50,000. The trial court ordered the defendants to issue the required permits. The defendants appeal. The main issue on appeal is whether the township rural zoning act and the Highway Advertising Act are to be read in pari materia or whether the Highway Advertising Act preempts local ordinances passed in compliance with the township rural zoning act. Held:

    Both enactments are directed toward orderly development of land use, however, the Highway Advertising Act is specifically concerned with billboard advertising as it relates to land use. Where two statutes are in conflict, the more specific will prevail. Thus, the Highway Advertising Act preempts the local zoning ordinances to the extent that they are in conflict. The contested zoning ordinance is not permissible under any of the exceptions to the exclusive control of highway advertising under the Highway Advertising Act.

      References for Points in Headnotes

       73 Am Jur 2d, Statutes §§ 187, 188.

       73 Am Jur 2d, Statutes § 189.

       73 Am Jur 2d, Statutes § 253.

       56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 374.

      Affirmed.
    1. Statutes — In Pari Materia.
    Statutes in pari materia are those which relate to the same person or thing, or the same class of persons or things, or which have a common purpose.
    2. Statutes — Specific Provisions — General Provisions — In Pari Materia.
    Specific statutory provisions control over more general statutory provisions; therefore, if the implementation of a more specific statute requires that activities under a more general statute be constrained, the doctrine of in pari materia may not be applied to hinder the implementation of the more specific statute.
    3. Zoning — Statutes — Highway Advertising Act — Township Rural Zoning Act — Statutory Construction.
    The Highway Advertising Act and the township rural zoning act should be construed to complement each other to the extent that the acts share the purpose of regulating land use; however, where the two acts conflict, the more specific provision, the Highway Advertising Act, will prevail (MCL 125.271 et seq., 252.301 et seq.; MSA 5.2963[1] et seq., 9.391[101] et seq.).

    4. Municipal Corporations — Preemption — Regulation.
    Municipal regulation of an area of governmental control is preempted where the state undertakes to assume exclusive regulation of that area.

      Bodman, Longley & Dahling (by Joseph N. Brown and David W. Hipp), for plaintiff.

      Crane, Kessel & Crane, for defendant.
    Before: M. J. Kelly, P. J., and M. F. Cavanagh and Mackenzie, JJ.
   Per Curiam.

Defendant Saginaw Township is an unchartered Michigan township with a population of less than 50,000. A Saginaw Township zoning ordinance prohibits off-premises outdoor advertísing billboards and, pursuant to that ordinance, a request by the plaintiff for construction permits to build such billboards was denied. This denial was made in spite of the fact that the plaintiff had been granted Michigan state permits, issued by the Department of State Highways of Michigan, to erect billboards in Saginaw Township. The proposed locations for the billboards are in districts zoned for business uses.

Following the denial, the plaintiff began this suit to ask that the prohibitive zoning ordinance be declared invalid and to compel the issuance of construction permits.

The trial court, after hearing arguments, held that the zoning ordinance relied on by the defendants was preempted by the Highway Advertising Act, MCL 252.301 et seq.; MSA 9.391(101) et seq., which occupies the whole field of regulation and controls signs and sign structures in townships having a population of less than 50,000. The trial court ordered the defendants to issue the required permits and the defendants bring the instant appeal as of right. Three issues are raised in this appeal. One is determinative and merits extended discussion.

Our resolution of this appeal involves consideration of two statutes, the township rural zoning act, MCL 125.271 et seq.; MSA 5.2963(1) et seq., and the Highway Advertising Act, MCL 252.301 et seq.; MSA 9.391(101) et seq. The defendants argue that the two statutes share a common purpose and are to be read in pari materia so as to fulfill that common purpose. The plaintiff argues that the second statute acts to preempt local ordinances passed under authority of the first and that, for purposes of this suit, the second is to control. An examination of the two enactments and application of canons of statutory construction persuades us that the plaintiffs position enjoys stronger legal support.

The stated purpose of the township rural zoning act (TRZA) is as follows:

"The provisions of the zoning ordinance shall be based upon a plan designed to promote the public health, safety, morals and general welfare, to encourage the use of lands in accordance with their character and adaptability and to limit the improper use of land, to avoid the overcrowding of population, to provide adequate light and air, to lessen congestion on the public roads and streets, to reduce hazards to life and property, to facilitate adequate provision for a system of transportation, sewage disposal, safe and adequate water supply, education, recreation and other public requirements, and to conserve the expenditure of funds for public improvements and services to conform with the most advantageous uses of land, resources and properties; and shall be made with reasonable consideration, among other things, to the character of each district, its peculiar suitability for particular uses, the conservation of property values and natural resources, and the general and appropriate trend and character of land, building and population development.” MCL 125.273; MSA 5.2963(3).

In order to implement programs to attain the goals set forth, local governmental bodies are given the power to regulate or prohibit in a specified manner the type and method of development. MCL 125.271; MSA 5.2963(1). The power includes control over all "dwellings, buildings and structures” which would incorporate large scale signs. MCL 125.271; MSA 5.2963(1), Midland Twp v Rapanos, 41 Mich App 75; 199 NW2d 548 (1972).

On the other hand, the Highway Advertising Act (HAA) gives as its purpose:

"To improve and enhance scenic beauty consistent with the provision of section 131 of title 23 of the United States code, as amended, the legislature finds it appropriate to regulate and control outdoor advertising adjacent to the interstate highway, freeway and primary highway systems within this state and that outdoor advertising is a legitimate commercial use of private property, is an integral part of the marketing function and an established segment of the economy of this state.” MCL 252.303; MSA 9.391(103).

The defendants’ position that the statutes are in pari materia is not persuasive.

"Statutes in pari materia are those which relate to the same person or thing, or the same class of persons or things, or which have a common purpose. It is the rule that in construction of a particular statute, or in the interpretation of its provisions, all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law, although enacted at different times, and containing no reference one to the other.” Detroit v Michigan Bell Telephone Co, 374 Mich 543, 558; 132 NW2d 660 (1965).

It is true that the statutes express common concerns in terms of general goals. However, significant differences are readily apparent. While both statutes are directed toward orderly development of land use, the HAA is specifically concerned with billboard advertising as it relates to land use. It is generally the case that specific statutory provisions control over more general statutory provisions. Public Schools of City of Battle Creek v Kennedy, 245 Mich 585; 223 NW 359 (1929). Therefore, if implementing the more specific requires that activities under the general enactment be constrained, the doctrine of in pari materia may not be applied to hinder the implementation of the more specific statute.

Thus, to the extent that the acts share the purpose of regulating land use, they should be construed to complement each other. However, where the two conflict, the more specific provision will prevail. This statement appears to be in accord with the intent of the Legislature as expressed in the HAA.

An examination of the HAA indicates that the Legislature intended this act to be the statement of the law in this area. The act expressly provides that it is intended to occupy the whole field of regulation and control concerning such signs.

"Sec. 4. This act regulates and controls the size, lighting and spacing of signs and sign structures in adjacent areas and occupies the whole field of such regulation and control”. MCL 252.304; MSA 9.391(104).

The state’s exclusive control is subject to three express exceptions:

"(a) Every city, village, charter township and township, such township having more than 50,000 population, may enact ordinances to regulate and control the size, lighting and spacing of signs and sign structures but such ordinances shall not make lawful a sign or sign structure which is otherwise unlawful under this act. Such a city, village, charter township or township shall certify to the state highway commission that it regulates and controls size, lighting and spacing of signs and sign structures and shall submit a copy of its ordinances and all subsequent amendments to the department. A sign owner shall apply for an annual permit pursuant to section 6 for each sign to be maintained or to be erected within such a city, village, charter township or township.
"(b) A city, village, charter township or township vested by law with authority to enact zoning codes has full authority under its own zoning code or ordinances to establish commercial or industrial areas and the actions of a city, village, charter township or township in so doing shall be accepted for the purposes of this act.
"(c) An ordinance or code existing on the effective date of this act, of a city, village, charter township or township, such township having more than 50,000 population, which ordinance or code prohibits signs or sign structures, shall not be made void by this act.” MCL 252.304; MSA 9.391(104).

The contested ordinance is not permissible under any of the exceptions. The first and third provisos do not apply to the ordinance, as the parties have stipulated that Saginaw Township enjoys a population of less than 50,000. The second proviso is not relevant to this case, as the plaintiff is not challenging the authority of the township to establish commercial or industrial areas.

As the defendants do not fit within any of the express exceptions, it is clear that this regulation encroaching on the HAA is impermissible.

When the state undertakes to assume exclusive regulation, municipal regulation is preempted. Noey v Saginaw, 271 Mich 595; 261 NW 88 (1935). The express language utilized here indicates that the pervasive scheme of control in this area intended by the Legislature preempts local regulation. People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977).

The fear expressed by the defendants that the lack of local regulation will lead to chaos and ruin is without foundation. The HAA regulates every phase of the construction and maintenance of such signs and state permits must be obtained prior to construction. In addition, local regulation is precluded only as to signs in an adjacent area where the facing of the sign is visible from an interstate highway, freeway or primary highway. MCL 252.305; MSA 9.391(105).

For the reasons expressed above, we affirm the ruling of the trial court. No costs, a public question involved.


text:
    PEOPLE v VAUGHN
    Docket No. 78-2640.
    Submitted June 5, 1979, at
    October 2, 1979.
    Leave to appeal applied for.
    Marcus Vaughn was charged with felonious assault and with violation of the felony-firearm statute. He was alleged to have carried a handgun when he assaulted the victim, which he denied. He was convicted of felonious assault but was acquitted of the felony-firearm charge, Recorder’s Court of Detroit, Patricia J. Boyle, J. The defendant appeals, alleging that the jury’s verdicts were inconsistent. Held:

    The definition of a handgun for purposes of the felonious assault statute is the same as the definition for purposes of the felony-firearm statute. The jury, in finding defendant guilty of felonious assault, must have determined that the alleged gun existed, but in acquitting him of the felony-firearm charge must necessarily have found that the gun did not exist. The verdicts are therefore inconsistent, and the conviction must be vacated.
    Reversed.
    1. Assault and Battery — Felonious Assault — Statutes.
    Felonious assault requires proof of a simple assault committed with a dangerous weapon (MCL 750.82; MSA 28.277).
    2. Assault and Battery — Felonious Assault — Firearm — Loaded Firearm.
    A prosecutor is not required to prove that a gun used in a felonious assault was loaded; where a firearm is used as a firearm, as opposed to use as a bludgeon, the fact that the victim believes that the firearm is loaded is sufficient to establish the use of a dangerous weapon.
    References for Points in Headnotes

       6 Am Jur 2d, Assault and Battery §§ 48, 53.

       6 Am Jur 2d, Assault and Battery § 54.
    79 Am Jur 2d, Weapons and Firearms § 3.
    Fact that gun was unloaded as affecting criminal responsibility. 79 ALR2d 1412.

       79 Am Jur 2d, Weapons and Firearms §§ 1, 2.

      3. Assault and Battery — Felonious Assault — Handguns — Statutes.
    A handgun used by a defendant in assaulting a victim is both a "dangerous weapon” under the felonious assault statute and a "firearm” under the felony-firearm statute (MCL 750.82, 750.227b; MSA 28.277, 28.424[2]).

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

      Norman R. Robiner, for defendant on appeal.
    Before: R. M. Maher, P.J., and Bronson and A. E. Moore, JJ.

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

   Per Curiam.

Defendant was charged with felonious assault, MCL 750.82; MSA 28.277 (count 1), and felony-firearm, MCL 750.227b; MSA 28.424(2) (count 2). The information specifically charged that the firearm and the weapon used in the assault was a handgun. A Recorder’s Court jury returned a verdict of guilty of felonious assault and not guilty of felony-firearm. Defendant moved for a judgment n.o.v. on the grounds that the verdicts were inconsistent. The trial judge denied the motion and defendant, after being sentenced to 2 to 4 years in prison, appeals as of right. We reverse.

The complainant testified that on February 8, 1978, she was standing on a Detroit street attempting to catch a cab. She stated that defendant walked up to her, grabbed her arm and put a gun to her stomach. She testified that she knew something about guns and that the gun in question was a revolver. The defendant was arrested shortly thereafter by a plainclothes police officer as defendant was running down the street. No gun was found.

Defendant testified that he was interested in buying some joints. He claimed to have walked by the complainant and asked her what she was selling. When she told him to get away from her he replied, "Oh, bitch, I will kill your ass”. He stated that he did not mean it, that he did not touch her, that he was not carrying a gun and that he merely pointed at her while wearing black gloves.

In charging the jury the trial court read the applicable statutes and accurately instructed the jury as to the specific elements of both counts. It defined "gun” as a firearm and defined "firearm” as including any weapon from which a dangerous object may be shot or propelled by the use of explosives, gas or air. The court further instructed the jury that a gun is a firearm and that a firearm does not include smooth bore rifles or handguns designed and manufactured exclusively for shooting BB’s not exceeding .177 caliber by means of spring, gas or air. The jury was also informed that it did not matter whether or not the gun was loaded. Finally the jury was told that there were four possible verdicts: guilty or not guilty of count 1 and guilty or not guilty of count 2.

The jury in returning a verdict of guilty as to count 1 must have decided that a gun did exist and in returning a verdict of not guilty as to count 2 must necessarily have determined the nonexistence of the gun. Thus the verdicts are inconsistent, People v Goodchild, 68 Mich App 226; 242 NW2d 465 (1976).

The conclusion that the verdicts in this case are inconsistent can be avoided only if the definition of handgun for purposes of the felonious assault statute differs from the definition of handgun for purposes of the felony-firearm statute, i.e., if a handgun as "dangerous weapon” is different from a handgun as "firearm”. We find the definitions to be one and the same and thus find the verdicts to be inconsistent, requiring reversal. People v Goodchild, supra.

Felonious assault requires proof of a simple assault committed with a dangerous weapon. People v Richard Johnson, 42 Mich App 544; 202 NW2d 340 (1972). Michigan law generally focuses upon the actions of the defendant rather than the apprehension of the victim in establishing the existence of a criminal assault. People v Lilley, 43 Mich 521; 5 NW 982 (1880). However, an exception exists as to felonious assaults where the charge alleges that the weapon is a gun. Where a firearm is used as a firearm, as opposed to use as a bludgeon, the fact that the victim believes that the firearm is loaded is sufficient to establish the use of a dangerous weapon. People v Williams, 6 Mich App 412; 149 NW2d 245 (1967). The prosecutor is not required to prove that the gun was loaded in a felonious assault charge, People v Doud, 223 Mich 120; 193 NW 884 (1923).

A firearm is defined in MCL 8.3t; MSA 2.212(20) as follows:

"The word 'firearm’, except as otherwise specifically defined in the statutes, shall be construed to include any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of propulsion, except any smooth bore rifle or handgun designed and manufactured exclusively for propelling BB’s not exceeding .177 calibre by means of spring, gas or air.”

A gun being a firearm, it seems clear from the above definition that an unloaded gun is a weapon "from which a dangerous projectile may be propelled * * *”.

The handgun with which defendant allegedly assaulted the complainant herein was clearly both a dangerous weapon under the felonious assault statute and a firearm under the felony-firearm statute. We need not reach the issue of whether an inoperable gun would be a firearm, for defendant did not make any such claim but rather denied the existence of any gun.

The verdicts of the jury being inconsistent, we must vacate defendant’s conviction for felonious assault. Reprosecution being barred on double jeopardy grounds, see Ashe v Swenson, 397 US 436; 90 S Ct 1189; 25 L Ed 2d 469 (1970), People v McCurtis 84 Mich App 460; 269 NW2d 641 (1978), defendant is discharged.


author: Per Curiam. Bashara, J.

text:
    PEOPLE v MORRIS
    Docket No, 78-2731.
    Submitted March 7, 1979, at Lansing.
    Decided October 2, 1979.
    Leave to appeal applied for.
    Joann Morris was convicted of first-degree murder, Saginaw Circuit Court, Eugene Snow Huff, J. Defendant appeals, alleging error in the instructions to the jury, in the failure to exclude certain evidence, and in certain cross-examination by the prosecutor. Held:

    1. The trial court gave an erroneous instruction to the jury on the definition of legal sanity. The instruction was later given correctly, but where conflicting instructions are given, one erroneous and the other without error, the jury is presumed to have followed the erroneous instruction.
    2. The defense sought to exclude any reference to the fact that the defendant had had legal abortions and had quarreled with the victim over them prior to the homicide. The triad court held that this evidence was admissible as being relevant to the issue of the defendant’s sanity. The abortions were not shown to be relevant, and the evidence of them was more prejudicial than probative. The defense motion to exclude the references to the abortions should have been granted.
    3. The prosecutor improperly asked the defendant on cross-examination about certain prior arrests. Although evidence of such arrests may be admitted as rebuttal to an insanity defense, the defendant in this case had not yet presented such a defense, and the question merely served as an improper attempted impeachment of the defendant.
    Reversed and remanded.
    Bashara, J., concurred, except that he would hold that the question of the prosecutor regarding the defendant’s prior arrests was not, per se, reversible error. The prosecutor believed it to be permissible, an objection was sustained and the questioning did not continue. Judge Bashara would hold the error, if any, to be harmless.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 33-36, 38, 39.
    Modern status of the M’Naghten "right and wrong” test of criminal responsibility. 45 ALR2d 1447.

       75 Am Jur 2d, Trial §§ 628, 920.

       29 Am Jur 2d, Evidence §§ 249, 251-257.

       29 Am Jur 2d, Evidence §§ 320, 321.

      Opinion op the Court
    1. Criminal Law — Insanity — Legal Sanity.
    A criminal defendant is legally sane if he is shown to satisfy both of two requirements: (1) did he know that what he was doing was right or wrong, and (2) if so, did he have the power to resist the comtemplated action.
    2. Criminal Law — Instructions to Jury.
    It may be presumed that a jury followed the erroneous instruction where conflicting instructions were given, one erroneous and the other without error.
    3. Homicide — Evidence — Relevance — Prejudice.
    Reference to the fact that a defendant in a homicide case had had legal abortions and that the defendant and the victim had quarreled over the abortions was erroneously allowed to be admitted into evidence where the fact that she had had abortions was not shown to be relevant to the question of the defendant’s sanity, which was at issue, and the reference to the abortions was potentially more prejudicial than probative.
    4. Criminal Law — Evidence — Insanity — Prior Arrests.
    Evidence of a defendant’s prior arrests, convictions, and other antisocial conduct becomes material to the determination of the defendant’s sanity once it is shown that such evidence is relevant to the formation of the opinion of the defendant’s expert psychiatric witness; however, it was improper for a prosecutor to ask a defendant, on cross-examination, about previous arrests where the defendant’s expert witness had not testified and the question, therefore, was not proper rebuttal to an insanity defense but an attempted impeachment of the defendant’s credibility.
    Concurrence by Bashara, J.
    5. Criminal Law — Evidence — Prior Arrests — Harmless Error.

      A prosecutor’s question to a defendant on cross-examination regarding previous arrests did not, per se, amount to reversible error because it was harmless error where the prosecutor believed the question was permissible to rebut an insanity defense, an objection to the question was sustained and there was no further questioning regarding the matter.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Patrick M. Meter, Chief Assistant Prosecuting Attorney, for the people.

      Joseph Samuel Scorsone, for defendant on appeal.
    Before: M. F. Cavanagh, P.J., and Bashara and D. E. Holbrook, Jr., JJ.
   Per Curiam.

Defendant was tried by jury for the oifense of first-degree murder. MCL 750.316; MSA 28.548. She was convicted, sentenced to life imprisonment and appeals by right, raising six issues, three of which merit comment and require reversal for a new trial.

Reversible error was committed when the trial court instructed the jury prior to their deliberations on the definition of legal insanity and the corresponding definition of legal sanity. The erroneous charge that was given twice was that, "The person is legally sane if despite the mental illness that person possesses substantial capacity either to appreciate the wrongfulness of her conduct or to conform her conduct to the requirements of the law”. (Emphasis added.) In Michigan a criminal defendant is legally sane if she is shown to satisfy both of the two requirements, viz., whether she knew what she was doing was right or wrong and if she did, then did she have the power to resist the contemplated action? People v Martin, 386 Mich 407, 418; 192 NW2d 215 (1971). The prosecutor argues that despite this improper charge, the jury was properly instructed before any proofs were presented and that a supplemental charge during deliberations stated the definition correctly and resolved any possible ambiguities. Defense counsel objected to the predeliberation charge, noting the error; nevertheless, the trial court elected to "leave the instructions as they stand”. Approximately three hours after commencing deliberations the jury requested another recital of the insanity instructions. At that time the charge was delivered correctly, however, the previous improper definition was not retracted. We have previously held that where conflicting instructions are given, one erroneous and the other without error, it may be presumed that the jury followed the instruction that was erroneous. People v Bargy, 71 Mich App 609, 616; 248 NW2d 636 (1976).

Another instance of reversible error concerned defendant’s in limine motion to exclude any reference to the fact that defendant had had legal abortions prior to the charged crime. A report prepared by defendant’s psychiatrist included the information that defendant and the victim had quarreled over the abortions, therefore, because the trial court felt that this information was relevant to the issue of defendant’s sanity, the pretrial motion was denied. Defense counsel then offered to make a separate record to establish that the psychiatrist considered the abortions immaterial to his diagnosis. When the trial court refused that offer, defense counsel felt obliged to question all prospective jurors on voir dire about their attitudes concerning abortions, thereby effectively informing the jury of defendant’s abortions. We find that these rulings by the trial court constituted an abuse of discretion. People v Triplett, 68 Mich App 531, 536; 243 NW2d 665 (1976), lv den 397 Mich 842 (1976).

MRE 401 and 402 define relevant evidence and direct that it be admissible except where otherwise provided by constitution or court rule. The only possible relevancy the defendant’s abortions may have had to the issue of her sanity is the strife which they mqy have occasioned between herself and her victim. If this were so, the abortions themselves would not be the relevant evidence. But more than this, it would have been a relatively easy matter for the trial court to determine whether or not the psychiatrist had relied upon the abortions in diagnosing defendant, in which case the abortions or the arguments generated by them would be relevant. Despite the possibility that this evidence was relevant, MRE 403 further requires that it be more probative than prejudicial. The existing strong and opposing attitudes concerning the issue of abortion clearly make ány reference thereto potentially very prejudicial. In fact, one prospective juror at defendant’s trial was peremptorily challenged, a challenge for cause having been denied, for having affirmed that she would "go into trial with the attitude that [defendant has] already committed a murder” by virtue of her abortions. Notwithstanding the deference with which a reviewing court must treat a lower court’s determination of the admissibility of evidence, we find that a balance of the two factors weighs heavily towards prejudice with a minimum of probative value. People v DerMartzex, 390 Mich 410, 415; 213 NW2d 97 (1973).

Finally, error was also present when the prosecutor asked defendant on cross-examination: "Is it not a fact that in 1975 and 1976 you were arrested three times for shoplifting?” Counsel for defendant immediately objected and the trial court sustained the objection.

Once the question had been voiced, the potentiality for prejudice was present since it was comparable to evidence which was exhibited to the jury without its having been offered or received. People v James, 36 Mich App 550, 556; 194 NW2d 57 (1971). The prosecutor argued that People v Woody, 380 Mich 332, 335-339; 157 NW2d 201 (1968), allowed him to pose this question for the purpose of determining sanity after defendant had raised her insanity defense. Woody and subsequent cases in this Court which address that issue are clearly distinguishable from the present case on the basis that the prosecutors were permitted to rebut insanity defenses by such evidence only after the defendants’ expert psychiatric witnesses had testified. The improper question in the present case was tendered before defendant’s expert witness testified and was also directed to the defendant. The rationale behind the holding in the Woody case is that evidence of a defendant’s prior arrests, convictions and other antisocial conduct becomes material to the determination of a defendant’s sanity once it is shown that such evidence is relevant to the formation of the expert witness’s opinion. People v Hammack, 63 Mich App 87, 93; 234 NW2d 415 (1975). Furthermore, the holding announced in Woody was stated to be controlled by a prior Supreme Court ruling that, "in general * * * as to a defendant who does not testify in his own behalf, evidence of former convictions or offenses is not admissible except in cases wherein such evidence is material and relevant to the issue being tried”. Woody, supra, at 339. Thus, the prosecutor’s question could not be seen as an attempt to impeach the diagnosis of the expert witness when the expert had yet to testify. Rather, the question must be seen as an attempted impeachment of defendant’s credibility. As such, it was plainly improper. People v Falkner, 389 Mich 682, 695; 209 NW2d 193 (1973).

Reversed and remanded.

Bashara, J.

(concurring). I concur in the result reached by the majority. However, it is my opinion that the prosecutor’s question regarding prior arrests for shoplifting did not, per se, amount to reversible error. The question was propounded on cross-examination under the belief that it was permissible under People v Woody, 380 Mich 332; 157 NW2d 201 (1968). Once asked, an objection was sustained and the questioning ceased. Under the circumstances, the error, if any, was harmless.