author: D. F. Walsh, J.

text:
    BUSCEMI'S INC v ANTHONY BUSCEMI DELICATESSEN AND PARTY STORE, INC
    Docket No. 78-3679.
    Submitted February 20, 1980, at Detroit.
    Decided April 21, 1980.
    Plaintiff, Buscemi’s Inc., brought an action in the Macomb Circuit Court against Anthony Buscemi Delicatessen and Party Store, Inc., to enjoin the use of the name "Buscemi”. The court, Howard R. Carroll, J., held that "Buscemi” as used by plaintiff for over 20 years had acquired a secondary meaning when used in connection with "a business commonly referred to as a delicatessen, selling pizza, submarine sandwiches, torpedo sandwiches and other food products for consumption off the premises including but not limited to beer, wine and liquor”. The court also found that the public was confused when defendant Anthony Buscemi Delicatessen and Party Store, Inc., was opened in Clinton Township in Macomb County, creating the mistaken belief that defendant’s business was actually operated by plaintiff The court ruled that, notwithstanding the fact that the Buscemi surname was shared by Paul Buscemi, owner of plaintiff, and Anthony Buscemi, owner of defendant, plaintiff had acquired the exclusive right to use the name in connection with the delicatessen business and enjoined defendant "from using the words Buscemi or Buscemi’s either alone or in any form or combination * * * likely to create a connection * * * in the mind of the public between Buscemi or Buscemi’s and the products of plaintiff”. An amended order of the court set the territorial extent of the injunction as Macomb, Oakland and Wayne Counties. Plaintiff appeals from the court’s failure to include St. Clair, Washtenaw, Lapeer and Monroe Counties within the protected area. Held:

      References for Points in Headnotes
    [1] 74 Am Jur 2d, Trademarks and Tradenames §§ 57, 64 et seq.

    Right, in absence of self imposed restraint, to use one’s own name for business purposes to detriment of another using the same or a similar name. 44 ALR2d 1156.
    [2] 74 Am Jur 2d, Trademarks and Tradenames § 64 et seq.

    Right, in absence of self imposed restraint, to use one’s own name for business purposes to detriment of another using the same or a similar name. 44 ALR2d 1156.

      A person generally has a right to use his own name honestly in his own business even though he may thereby incidentally interfere with or injure the business of another having the same name. However, a name may, by appropriation and actual and exclusive use, come to denote in the minds of the public the product of some particular person or factory or business and, thus, acquire a secondary significance, which is properly the subject matter of exclusive right. A person using a name that has acquired a secondary meaning is entitled to exclusive right to its use in the geographic area where the name has acquired the secondary meaning but is not entitled to protection in geographic fields of potential expansion where the name has not acquired the secondary meaning or where no bad faith has been shown on the part of the other party using the name. Since no bad faith was shown or secondary meaning acquired in the counties not included in the protected area, the trial court did not err in failing to include them.
    Affirmed.
    1. Names — Secondary Meaning — Exclusive Use.
    A person generally has a right to use his own name honestly in his own business even though he may thereby incidentally interfere with or injure the business of another having the same name; however, a name may, by appropriation and actual and exclusive use, come to denote in the minds of the public the product of some particular person or factory or business and, thus, acquire a secondary significance, which is properly the subject matter of exclusive right.
    2. Names — Secondary Meaning — Exclusive Use — Field op Potential Expansion.
    A person using a name that has acquired a secondary meaning is entitled to exclusive right to its use in the geographic area where the name has acquired the secondary meaning but is not entitled to protection in geographic fields of potential expansion where the name has not acquired the secondary meaning or where no bad faith has been shown on the part of the other party using the name.

      Joseph E. Mihelich, for plaintiff.

      Bruce A. Karash, for defendant.

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

On March 7, 1977, the Macomb County Circuit Court issued a written finding that the name "Buscemi”, as used by plaintiff, Buscemi’s Inc., for over 20 years, had acquired a secondary meaning when used in connection with "a business commonly referred to as a delicatessen, selling pizza, submarine sandwiches, torpedo sandwiches and other food products for consumption off the premises including but not limited to beer, wine and liquor”. The court also found that the public was confused when defendant Anthony Buscemi Delicatessen and Party Store, Inc., was opened in Clinton Township, Macomb County, in September, 1975, creating the mistaken belief that defendant’s business was actually operated by plaintiff. Notwithstanding the fact that the Buscemi surname was shared by Paul Buscemi, owner of plaintiff, and Anthony Buscemi, owner of defendant, the court ruled that plaintiff had acquired the exclusive right to use the name in connection with the delicatessen business. Defendant was "enjoined in the area which [would be] subsequently defined by [the] Court from using the words Buscemi or Buscemi’s either alone or in any form or combination with other words which would likely create a connection and association in the mind of the public between Buscemi and Buscemi’s and the products sold by [p]laintiff”.

On August 15, 1978, an amended order for permanent injunction was filed in which the court set forth the territorial extent of the injunctive relief granted to plaintiff: the counties of Macomb, Oakland and Wayne. It is from the circuit court’s refusal to include the counties of St. Clair, Washtenaw, Lapeer and Monroe within the protected territory that plaintiff appeals. We affirm.

Generally speaking, one has the right to use his own name honestly in his own business even though he may thereby incidentally interfere with and injure the business of another having the same name Young & Chaffee Furniture Co v Chaffee Brothers Furniture Co, 204 Mich 293, 298; 170 NW 48 (1918).

For this reason a surname is not normally the subject matter of a trademark. The doctrine of secondary meaning, however, has been universally recognized as an exception to that rule. With particular reference to the application of the secondary meaning doctrine to surnames, Hopkins on Trademarks, Tradenames and Unfair Competition (4th ed), § 73, p 169, cites Chickering v Chickering & Sons, 215 F 490, 494-495 (CA 7, 1914):

"A surname is not the subject-matter of a technical trademark. This is due to the fact that it can not be a clearly distinguishing mark on goods, inasmuch as any one bearing the name has a right to use it in connection with property of his manufacture. It may, however, by appropriation and actual exclusive use, in course of time come to denote in the minds of the public, the product of some particular person or factory or business, and thus acquire a secondary signification. Such a secondary signification, when established, is the subject-matter of exclusive right.”

In this case the trial court properly ruled that plaintiffs surname had acquired a secondary meaning in Macomb, Oakland and Wayne counties. There was ample evidence that "defendant’s use of the word” Buscemi in its business "leads to confusion and deception of the public and constitutes unfair business competition”. Montgomery Ward & Co, Inc v Ward Furniture & Appliance Co, 327 Mich 582, 585; 42 NW2d 747 (1950). We find that plaintiff’s objection to the geographical extent of the injunctive relief, however, is without merit.

Where reliance must be placed on the doctrine of secondary meaning, because a mark is otherwise nondistinctive, rights in the mark extend only so far as it is shown that the secondary meaning exists.

Plaintiff presented no evidence that the name Buscemi had acquired a secondary meaning in the counties of St. Clair, Washtenaw, Lapeer and Monroe. There was no evidence that, in the minds of persons living in those counties, the name had come to be identified with the products of plaintiff.

Moreover, we reject plaintiff’s contention that the injunctive relief should extend to its "natural field of legitimate trade expansion”. In beef & brew, inc v BEEF & BREW, INC, 389 F Supp 179, 185-186 (D Ore, 1974), the court examined the leading cases which had discussed the zone of expansion theory and found that in each there had been a showing either of secondary meaning in the zone or of bad faith on the part of the defendant. The court observed that "application of the [zone of expansion] doctrine must * * * be sensitively founded in the particular facts and circumstances of the case”. Id., 185. The Michigan Supreme Court has been reluctant to extend injunctive relief to a party’s field of potential expansion or in response to a plaintiffs contention that the defendant’s business might be operated in the future in such a manner as to deceive the public. Good Housekeeping Shop v Smitter, 254 Mich 592, 597-598; 236 NW 872 (1931), Burns v Schotz, 343 Mich 153, 158; 72 NW2d 149 (1955), The Fair—South Flint Plaza, Inc v Shoppers Fair of Flint, Inc, 358 Mich 640, 645; 101 NW2d 342 (1960).

We follow the lead of the beef & brew, inc case and find that the zone of expansion doctrine does not aid plaintiff under the facts of this case. There has been no proof of a secondary meaning in the four excluded counties or of bad faith on the part of defendant. We are not persuaded that any equitable rights of plaintiff will be violated by virtue of the territorial extent of the injunction. We are not convinced that we would have reached a different conclusion than that of the circuit court and we, therefore, decline to disturb the circuit court’s order. Edelman Realty Co v Edelman, 344 Mich 646, 656; 75 NW2d 29 (1956).

Affirmed. Costs to appellee.

       See MCL 429.32(d); MSA 18.638(22)(d).

       Vandenburgh, Trademark Law and Procedure (2d ed), §§ 2.41, 4.72, pp 68, 134; Zimmerman v Holiday Inns of America, 438 Pa 528, 538; 266 A2d 87 (1970), cert den 400 US 992; 91 S Ct 456; 27 L Ed 2d 440 (1971), Drug Fair-Community Drug Co, Inc v Drug Fair, Inc, 453 Pa 454, 458-459; 309 A2d 363 (1973), Flavor Corp of America v Kemin Industries, Inc, 358 F Supp 1114, 1125 (SD Iowa, 1973), aff'd 493 F2d 275 (CA 8, 1974); Anno: Unfair competition: geographical extent of protection of word or symbol under doctrine of secondary meaning, 41 ALR3d 434, 442, § 4; 3 Callman, Unfair Competition, Trademarks & Monopolies (3d ed), § 77.4(a), pp 363-364 ("In any event, the exclusive right created by such secondary meaning cannot extend beyond the area of its popularity.”)

       There was evidence that plaintiff had bought 16 minutes of television advertising in March 1978 and that radio advertising was to begin in June 1978, the week of the hearing on the geographical scope of the injunctive relief. These light, sporadic and very recent advertising efforts were not sufficient to indicate establishment of a secondary meaning.

       There was evidence of plaintiffs indefinite plans for expansion beyond the three counties (Macomb, Oakland and Wayne) where it presently has stores.

       The zone of expansion doctrine was criticized in Katz Drug Co v Katz, 89 F Supp 528, 535 (ED Mo, 1950), aff'd 188 F2d 696 (CA 8, 1951):
      "Such a doctrine would impose a burden on the innocent junior appropriator. In adopting a trade name or trade-mark, how far must the adopter look to see if a similar mark is in use? If a similar mark is in use, and it is wholly unknown in the area in which the so-called adopter wishes to use it, there is nothing to put him on notice. If the adopter in such a case wishes to open a retail drugstore in St. Louis, must he search Kansas City? Chicago? Des Moines? Denver? It seems unnecessary.”

       Our review is limited to the ruling made by the circuit court as of the date of the court’s order and should not be construed as a determination that Buscemi’s Incorporated has not as of some later date acquired a secondary meaning in an area more expansive than that determined by the trial court.


source: Caselaw Access Project

author: T. M. Burns, P.J.

license: Public Domain

text:
    SLEM v DAVID
    Docket No. 78-4019.
    Submitted December 11, 1979, at Lansing.
    Decided April 21, 1980.
    Thomas and Gail Slem filed a complaint in Washtenaw Circuit Court on April 15, 1976, against Ernest P. David and Karen Jannuzzi, seeking damages arising from an automobile accident which occurred on April 23, 1973. They were unable to personally serve defendant Jannuzzi and on October 8, 1976, obtained an order for substituted service. On May 3, 1977, service pursuant to the substituted service order was quashed, Washtenaw Circuit Court, William F. Ager, Jr., J. Plaintiffs filed a claim of appeal but stipulated to dismiss upon finding other remedies believed to be available. On June 6, 1977, plaintiffs commenced a second action. This time plaintiffs were able to serve defendant Jannuzzi and she appeared in this separate action. Jannuzzi moved for accelerated judgment, citing the statute of limitations. Plaintiffs sought and obtained an order permitting duplicate summons to be served on the April 15, 1976, complaint, which had never been dismissed. Jannuzzi, although personally served with the duplicate summons, moved for summary judgment on the ground that the court lacked jurisdiction over the matter raised in the plaintiffs’ original complaint because summons on it had not been served within 180 days of the date the complaint was filed. Washtenaw Circuit Court, Ross W. Campbell, J., agreed and dismissed plaintiffs’ suit. Plaintiffs appeal. The issues presented are: (1) where the action had not been dismissed, was service which was made more than 180 days after issuance of the summons valid, and (2) was the duplicate summons valid? Held:

    1. Court rules require the clerk of the court to obtain an order dismissing a complaint if summons was not served within the 180-day period. The clerk failed to dismiss the action. Therefore, until the clerk did so, the summons was valid even though 180 days had passed.
    2. Service under the original complaint was valid because the clerk failed to dismiss the action for lack of service. The validity of a duplicate summons is controlled by the life of the original summons, not by an inflexible 180-day time period. Therefore, since the original summons was valid, service under the duplicate summons was also valid.

      Reference for Points in Headnotes
    [1, 2] 62 Am Jur 2d, Process § 5.

      Reversed.
    1. Process — 180-Day Rule — Court Clerks — Failure to Dismiss Complaint — Court Rules.
    A former court rule provided that a summons was valid for only 180 days from the date a plaintiff’s complaint was filed; however, not all summonses expired after 180 days and a summons would be valid even though 180 days had passed where the clerk of the court failed to obtain an order dismissing the complaint after the 180-day time period (GCR 1963, 102).
    2. Process — Duplicate Summons — 180-Day Rule — Validity op Duplicate Summons.
    The validity of a duplicate summons under a former court rule was controlled by the life of the original summons, not by an inflexible 180-day time period, and as long as service under the original summons was valid, service under the duplicate summons was also valid (GCR 1963, 102).

      Tanielian & Bohan, P.C. (by Michael J. Cantor), for plaintiffs.

      O’Hagan & Conlin, P.C., for defendants.
    Before: T. M. Burns, P.J., and J. H. Gillis and Bashara, JJ.
   T. M. Burns, P.J.

Plaintiffs Thomas and Gail Slem appeal of right a July 5, 1978, lower court order granting defendants’ motion to quash service of process and dismiss the instant action. We reverse.

This case arises out of an automobile accident that occurred on April 23, 1973. On April 15, 1976, plaintiffs filed a complaint alleging negligence on behalf of defendants. However, they were unable to personally serve defendant Jannuzzi, and on October 8, 1976, they obtained an order for substituted service. Service pursuant to the substituted order was quashed on May 3, 1977. Plaintiffs filed a claim of appeal but stipulated to dismiss the appeal upon finding what they believed to be another available remedy.

On June 16, 1977, plaintiffs commenced a second action arising out of the same automobile accident. They were able to personally serve defendant Jannuzzi and she appeared in this separate action. When defendant Jannuzzi moved for accelerated judgment, citing the statute of limitations, plaintiffs sought and obtained an order permitting duplicate summons to be served on the April 15, 1976, complaint, which had never been dismissed. Although personal service on defendant Jannuzzi was made on the duplicate summons, she moved for summary judgment on the ground that the court lacked jurisdiction over the matter raised in plaintiffs’ original complaint because summons on it had not been served within 180 days of the date that the complaint was filed. The lower court agreed and dismissed plaintiffs’ suit. Plaintiffs now appeal and we reverse.

Under the provisions of GCR 1963, 102.4, as it read at the time that the above related actions occurred, a summons was valid for only 180 days from the date that a plaintiff’s complaint was filed. However, not all summonses expired after 180 days. Under GCR 1963, 102.5(1), the clerk of the court where a complaint was filed was required to obtain an order dismissing the complaint if the summons was not served within the 180-day time period. Until the clerk did so, the summons was valid even though 180 days had passed. Brashers v Jefferson, 402 Mich 399; 263 NW2d 243 (1978), Goniwicha v Harkai, 393 Mich 255; 224 NW2d 284 (1974).

In the instant case, defendant Jannuzzi was served pursuant to a duplicate summons. Prior to its amendment, GCR 1963, 102.4, stated that a duplicate summons did not extend the life of the original summons. Defendant Jannuzzi would have us distinguish between an original summons and a duplicate summons, and hold that although an original summons could be served at any time up to the date that a clerk enters an order of dismissal, a duplicate summons was valid only for the 180-day time period following the filing of the complaint. We find this interpretation of the court rule to be inconsistent with its plain language.

Rule 102.4 unambiguously provided that service of process under a duplicate summons was not valid if the life of the original summons had expired. Thus, the validity of a duplicate summons was controlled by the life of the original summons, not by an inflexible 180-day time period. As long as service under an original summons was valid, service under a duplicate summons also was valid. In the instant case, service of process on defendant Jannuzzi under the original summons would have been valid because the clerk had not yet entered an order dismissing plaintiffs’ complaint. Therefore, we hold that service on defendant Jannuzzi under the duplicate summons also was valid. To hold otherwise, would glorify form over substance.

Reversed. Costs to abide final outcome of this litigation.

       That court rule provided: "No summons shall be valid for longer than 180 days from the date of the filing of the complaint with the court. Duplicate summons shall not have the effect of extending the expiration of the original summons.”

       On March 20, 1979, subsections 4 and 5 of GCR 1963, 102 were repealed and replaced by the following language:
      ".4 Expiration. A summons expires 180 days after the date the complaint is filed unless the judge, within that 180 days, orders a second summons to issue for a definite period not exceeding one year from the date the complaint is filed. The judge may impose just conditions on the issuance of the second summons. Duplicate summonses, ordinarily issued, do not extend the life of the original summons.
      ".5 Dismissal of Action, Defendant not Served.

        "(a) 180 days after the first complaint in the action is filed, or if the court has extended the time for service under subrule 102.4, on the expiration of the period as extended,
      "(1) an action is deemed dismissed without prejudice as to a defendant who has not been served with process under rule 105 or 106, unless the defendant has submitted to the court’s jurisdiction; and
      "(2) the clerk shall examine the court records and enter an order dismissing the action as to a defendant who has not been served with process or submitted himself to the court’s jurisdiction.
      "(b) The clerk’s failure to enter a dismissal order does not continue an action deemed dismissed. The clerk must give notice of the entry of a dismissal order under rule 107 and record the date of the notice in the "case file. The failure to give notice does not affect the dismissal.”
      Inasmuch as this case arose under the original version of this court rule, the present amendments, which took effect on April 15, 1979, are not controlling.


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

text:
    PEOPLE v POMA
    Docket No. 78-4248.
    Submitted January 15, 1980, at Detroit.
    Decided April 21, 1980.
    William Poma was convicted of possession of marijuana with intent to deliver, Wayne Circuit Court, Thomas Roumell, J. Timothy Maguire, the owner of the car from which the marijuana was seized, was endorsed as a witness at trial. At the conclusion of an evidentiary hearing, held outside the presence of the jury to determine the applicability and scope of this witness’s Fifth Amendment privilege against self-incrimination, the trial court held that Maguire did not have a privilege and if he did he waived it. Maguire testified at trial without benefit of counsel, where he answered questions directed to him with the response, "I don’t remember”. Defendant appeals. On appeal, defendant claims that the trial court erred in concluding that the witness had waived any privilege against self-incrimination. The second issue raised on appeal is whether the witness’s on-the-stand assertion of the self-incrimination privilege reversibly prejudiced defendant. Held:

    1. The privilege against self-incrimination belongs to the witness, not a defendant. Therefore, defendant has no standing to complain or to challenge a court’s ruling concerning a witness and his assertion of the privilege.
    2. It is inherently prejudicial to place on the stand a witness who is intimately related to the criminal episode at issue, when the judge and prosecutor know that he will invoke the Fifth Amendment. Where a judge determines at an evidentiary hearing that the intimate witness will either properly or improperly claim the protection against self-incrimination, he must not allow this witness to take the stand. The trial court should have been aware of the inherent prejudice of putting Maguire on the stand. Not only was a deliberate attempt to draw incriminating inferences from Maguire’s evasive answers tolerated but, according to the record, was actively encouraged. Under these circumstances, it is obvious that the defendant was denied a fair trial and must be accorded a new one.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 349 et seq.

    81 Am Jur 2d, Witnesses §§ 34, 35.
    [2] 21 Am Jur 2d, Criminal Law §§ 333 et seq., 356.
    [3-5, 7, 8] 21 Am Jur 2d, Criminal Law § 356.
    [6] 21 Am Jur 2d, Criminal Law § 357.
    81 Am Jur 2d, Witnesses § 50.

      Reversed and remanded.
    M. J. Kelly, P.J,, concurred separately. He would reverse defendant’s conviction and remand for a new trial holding that adequate grounds for reversal existed in the trial court’s management of Maguire. He believes the universal rule advanced by the majority should not be adopted because it would conflict with a prosecutor’s duty to produce res gestae witnesses. Where a court is obviously frustrated by a witness’s answers, loss of memory, or his assertion of the Fifth Amendment privilege, a better approach would be to threaten the witness with contempt.
    Opinion of the Court
    1. Criminal Law — Constitutional Law — Prosecution Witnesses — Self-Incrimination — Criminal Defendants — Standing to Claim Privilege.
    A criminal defendant has no standing either to claim the privilege against self-incrimination for a prosecution witness or to complain about an error by a trial judge who overruled the witness’s attempt to assert the privilege.
    2. Criminal Law — Constitutional Law — Witnesses —i Fifth Amendment — Self-Incrimination — Confrontation — Cross-Examination — Prejudice.
    Potential prejudice results when a witness is placed on the stand and invokes the Fifth Amendment because critical weight is added to the prosecution’s case where a witness who is substam tially related to the criminal episode, such as an accomplice, asserts this privilege; one of the reasons for possible prejudice is that his "statement” is thus admitted without opportunity for the defendant to engage in necessary confrontation and cross-examination.
    3. Criminal Law ■— Constitutional Law — Witnesses — Fifth Amendment — Self-Incrimination — Prejudice.
    A witness’s privilege against self-incrimination, whether it is valid or not, has no bearing on the prejudice that results to a defendant where that witness repeatedly asserts the Fifth Amendment privilege on the stand.

      4. Criminal Law — Constitutional Law — Witnesses — Fifth Amendment — Prejudicial Inferences — Fair Trial.
    A jury will often illogically infer that a defendant is guilty where there is some connection between the defendant and a witness, with knowledge of the facts, who refuses to testify; great care should be exercised by both the trial court and the prosecution to prevent such prejudicial inferences and to preserve the defendant’s right to a fair trial.
    5. Criminal Law — Constitutional Law — Witnesses — Fifth Amendment — Self-Incrimination — Hearing — Privilege — Prejudice.
    A court should take protective measures to protect against undue trial prejudice where it is confronted with a potential witness who is intimately connected with the criminal episode at issue by first holding a hearing outside the jury’s presence to explain the self-incrimination privilege, so the witness can make a knowledgeable choice regarding assertion, and also for the purpose of determining whether the witness has a legitimate privilege.
    6. Criminal Law — Constitutional Law — Witnesses — Self-Incrimination — Comprehension of Privilege — Responsibility of a Court.
    The burden of comprehending the privilege against self-incrimination should not rest with a witness; the responsibility of informing a witness, so that he understands the privilege, rests with the court.
    7. Criminal Law — Constitutional Law — Witnesses — Fifth Amendment —■ Self-Incrimination — Prejudice — Instructions to Jury.
    A court must proceed to determine if an intimate witness intends to assert his privilege against self-incrimination, whether validly or invalidly, at trial; if the witness is familiar with the criminal episode at issue and intends to claim the protection of the Fifth Amendment, there is really no way to prevent prejudice to the defendant absent barring that witness; a cautionary instruction that no negative inference is to be drawn from the witness’s tactiturnity would be ineffectual.
    Concurrence by M. J. Kelly, P.J.
    8. Criminal Law — Constitutional Law —• Witnesses — Fifth Amendment — Prejudice — Res Gestae Witnesses — Contempt.

      A rule which requires a court to bar the inherently prejudicial

      testimony of a witness, who is intimate with or was involved in the criminal episode at issue, where the judge and prosecutor know that the witness will invoke the Fifth Amendment, should not be adopted because such a rule could conñict with a prosecutor’s duty to produce all res gestae witnesses.

      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.

      Mogill, Bush, Posner, Cohen & Weiss, for defendant.
    Before: M. J. Kelly, P.J., and Bronson and D. C. Riley, JJ.
   D. C. Riley, J.

On June 13, 1978, defendant was convicted by a jury of possession of marijuana with intent to deliver, contrary to MCL 335.341(1)(c); MSA 18.1070(41)(1)(c). He was sentenced to four years probation with the first six months to be served at the Detroit House of Correction and now appeals as of right.

The primary issue on appeal concerns the impact of a witness’s privilege against self-incrimination on a defendant’s right to a fair trial. Timothy Maguire, the owner of the car from which marijuana was seized, was endorsed as a witness at trial. An evidentiary hearing was held outside the presence of the jury to determine the applicability and scope of this witness’s Fifth Amendment privilege against self-incrimination. The witness asserted this privilege in response to many questions relating to the car’s ownership or location, his loaning of the keys, his relationship to the defendant, etc. At the conclusion of the hearing, the trial court stated that Mr. Maguire did not have a valid Fifth Amendment privilege and that even if he did he had waived it. Similar questions were asked of the witness when he appeared without benefit of counsel at trial. He then answered many of the questions directed to him with the response, "I don’t remember”.

Defendant claims that the trial court erred in concluding that the witness had waived any privilege against self-incrimination. We need not address the validity of the witness’s privilege since it is clear that the defendant has no standing to dispute the court’s ruling. People v St Onge, 63 Mich App 16, 18; 233 NW2d 874 (1975). The more pertinent issue is whether the witness’s attempted on-the-stand assertion of the privilege prejudiced the defendant. Although this issue was not properly framed by the defendant, we will address it since it "seriously affect[s] [the] substantial rights of the accused”. People v Jordan, 7 Mich App 28, 32; 151 NW2d 242 (1967).

Both Federal and state courts have recognized the potential prejudice that results when a witness is placed on the stand and invokes the Fifth Amendment. See generally, Anno: Prejudicial effect of prosecution’s calling as witness, to extract claim of self-incrimination privilege, one involved in offense with which the accused is charged, 86 ALR2d 1443. When a witness who is substantially related to the criminal episode, such as an accomplice, asserts this privilege, critical weight is added to the prosecution’s case. See Namet v United States, 373 US 179, 187; 83 S Ct 1151; 10 L Ed 2d 278 (1963), Commonwealth v Terenda, 451 Pa 116; 301 A2d 625 (1973), State v Cullen, 103 NJ Super 360; 247 A2d 346 (1968). His "statement” is thus admitted without opportunity for the defendant to engage in necessary confrontation and cross-examination. See Namet, supra, Terenda, supra. See also Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968), Pointer v Texas, 380 US 400; 85 S Ct 1065; 13 L Ed 2d 923 (1965), Douglas v Alabama, 380 US 415; 85 S Ct 1074; 13 L Ed 2d 934 (1965).

Michigan has recognized the intrinsic prejudice which results from certain witnesses invoking of the Fifth Amendment, but prohibition has been limited to assertions of a valid privilege. In People v Giacalone, 399 Mich 642; 250 NW2d 492 (1977), the Supreme Court placed the protective burden on counsel’s shoulders, saying:

"A lawyer may not knowingly offer inadmissible evidence or call a witness knowing that he will claim a valid privilege not to testify.” Giacalone, supra, 645.

Subsequent cases have restated the standard as one applying to any privilege or have questioned the original limitation. See People v Benton, 402 Mich 47, 60, fn 18; 260 NW2d 77 (1977), People v Johnson, 83 Mich App 1, 13-14; 268 NW2d 259 (1978). See also, People v McNary, 43 Mich App 134, 140-141; 203 NW2d 919 (1972). We agree with the Pennsylvania Supreme Court that the validity of the witness’s privilege has no bearing on the prejudice that results to defendant when that witness repeatedly asserts the Fifth Amendment privilege on the stand. See Commonwealth v Davenport, 453 Pa 235; 308 A2d 85 (1973).

"If there is some connection between the defendant and the witness, often a jury will illogically infer guilt of the defendant because of the refusal of the witness, with knowledge of the facts, to testify.” McNary, supra, 140.

Great care should be exercised by both the trial court and the prosecution to prevent such inferences and to preserve a defendant’s right to a fair trial. McNary, supra, People v Brocato, 17 Mich App 277, 304; 169 NW2d 483 (1969). When the court is confronted with a potential witness who is intimately connected with the criminal episode at issue, protective measures must be taken. The court should first hold a hearing outside the jury’s presence to determine if the intimate witness has a legitimate privilege, as was done in the instant case. See In re Vickers, 371 Mich 114, 117; 123 NW2d 253 (1963), People v Savard, 73 Mich App 175, 179; 250 NW2d 565 (1977). This determination should be prefaced by an adequate explanation of the self-incrimination privilege so the witness can make a knowledgeable choice regarding assertion. See People v Bashans, 80 Mich App 702; 265 NW2d 170 (1978), People v Diponio, 48 Mich App 128; 210 NW2d 105 (1973). This was not done in the instant case. In fact, when asked if he understood the privilege, the witness commented "Nobody’s explained it to me, but I can figure it out myself’. We do not believe that the burden of comprehending the privilege should rest with witnesses; the responsibility of informing must be the court’s.

If the court concludes that the witness has no legitimate privilege, it should consider contempt penalties or other alternate remedies against the witness. Yet, with respect to the defendant, the court must proceed to determine if the witness intends to assert that privilege, whether validly or invalidly, at trial. If the intimate witness intends to claim the protection of the Fifth Amendment at trial, there really is no way to prevent prejudice to the defendant absent barring that witness. See McNary, supra, 140-141. As other jurisdictions have noted, a cautionary instruction that no negative inference is to be drawn from the witness’s taciturnity is ineffectual. See People v Paulino, 60 App Div 2d 769; 400 NYS2d 421 (1977), Terneda, supra, Cullen, supra.

"The naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction.” Bruton, supra, 129.

We hold that it is inherently prejudicial to place a witness on the stand who is intimately related to the criminal episode at issue, when the judge and prosecutor know that he will assert the Fifth Amendment privilege. When a judge determines at the evidentiary hearing that the intimate witness will either properly or improperly claim the protection against self-incrimination, he must not allow this witness to be called to the stand.

Although the instant judge cannot be held to this specific, newly-enunciated standard, we believe that he should have been aware of the announced inherent danger and prejudice of putting such a witness on the stand. See Namet, supra, McNary, supra, People v Bordine, 29 Mich App 112, 114; 185 NW2d 164 (1970). See also Johnson, supra. Not only was a deliberate attempt to draw incriminating inferences from the witness’s evasive answers tolerated by the trial court, it was actively encouraged. See Bashans, supra. Under these circumstances, we believe that the defendant was denied a fair trial and must be accorded a new one.

In light of the disposition of this case, defendant’s other arguments need not be addressed.

Reversed and remanded for a new trial.

Bronson, J., concurred.

M. J. Kelly, P.J.

(concurring). I concur in reversal but do not adopt the newly enunciated rule advocated by the majority. Adequate grounds for reversal exist in the trial court’s management of this witness without resort to a universal rule which may conflict with the prosecutor’s duty to produce all res gestae witnesses.

The trial court erred in its determination that witness Timothy Maguire waived his Fifth Amendment privilege by his responses to questioning at the evidentiary hearing. His testimony at that time concerned prior offenses, the people with whom he lived, when he first met defendant, and when he first learned of defendant’s arrest. None of these answers could be construed as incriminating.

Moreover, an examination of the testimony which the prosecution attempted to elicit indicates that Mr. Maguire’s assertion of privilege was, indeed, appropriate. The questions pertained to his ownership and the location of the car in whicli the contraband was found. Admission by the witness that he owned the vehicle in question, that he parked it in the plant parking lot, and that he had loaned the keys to defendant would certainly have provided a link in the chain of evidence necessary to prosecute the witness for possession of marijuana.

Once in front of the jury, the witness suffered a memory loss on many of the same matters originally the subject of his Fifth Amendment claim. When defense counsel objected to the line of questioning, the court stated that it would permit continued questioning because, "It’s hurting your client”. The course chosen appears to have been a deliberate approval of an approach concededly prejudicial to the defendant. The proper procedure for the court, which was obviously frustrated by the witness’s behavior, would have been to threaten the witness with contempt.


author: P. J. Glennie, J.

text:
    AVON TOWNSHIP v STATE BOUNDARY COMMISSION
    Docket No. 78-4249.
    Submitted October 10,1979, at Lansing.
    Decided April 21, 1980.
    Leave to appeal applied for.
    The City of Rochester petitioned the State Boundary Commission requesting the annexation of several square miles of Avon Township. The township opposed the petition, and prior to a public hearing on the petition the township and several individual taxpayers filed a complaint in Ingham Circuit Court seeking to reverse the commission’s decision that it had jurisdiction to proceed on the petition. While the action was pending the commission approved the petition and ordered the annexation, after which the circuit court ordered the matter held in abeyance pending resolution of a similar case in the Supreme Court. Avon Township was formally incorporated as a charter township prior to the circuit court’s decision. Prior to final incorporation the township moved to dismiss the annexation proceedings, claiming exemption as a charter township. Subsequently, the Ingham Circuit Court, Jack W. Warren, J., dismissed the plaintiffs’ complaint and ordered the annexation to take place. Plaintiffs appeal, contending that an amendment to the charter township act should be applied retroactively so that, because Avon Township had proceedings for becoming a charter township pending at the time of the amendment, the township would be exempt from the annexation proceedings. Held:

    1. The Legislature clearly intended to create a cut-off date of June 15, 1978, after which annexation of property in a charter township by a contiguous city or village would be considerably limited. There is nothing in the act to indicate that the Legislature intended it to be applied retroactively.

      References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes § 343.
    [2] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 57-62.
    [3] 73 Am Jur 2d, Statutes §§ 145, 146.
    [4] 73 Am Jur 2d, Statutes § 347 et seq.

    [5] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 41.
    [6] 2 Am Jur 2d, Administrative Law §§ 434 et seq., 553 et seq.

    [6, 7] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 70 et seq.

    [8] 2 Am Jur 2d, Administrative Law § 482.
    [9] 5 Am Jur 2d, Appeal and Error § 553.

      2. The trial court did not err in affirming the Boundary Commission’s decision. The commission’s decision was supported by competent, material and substantial evidence on the record.
    3. The Boundary Commission properly considered the future effect of its decision on the area affected.
    4. Plaintiffs have not shown any prejudice to a substantial right.
    5. The petition for annexation was properly found to be legally sufficient.
    Affirmed.
    1. Statutes — Amendment of Statutes.
    An amendment to a specific section of a statute strikes the former section from the law; the original section ceases to exist and is superseded as if the subsequent amendment had always been there.
    2. Boundaries — Statutes — Townships — Annexation.
    The intent of the Legislature in the 1978 amendment of a statute governing annexation of property in a charter township is clear and unambiguous: after June 15, 1978, the annexation of property in a charter township by a contiguous city or village was considerably limited (MCL 42.34; MSA 5.46[34]).
    3. Statutes — Construction — Interpretation.
    The cardinal rule of statutory construction is to ascertain and give effect to the intention of the Legislature; where a statute is plain and unambiguous it is not subject to interpretation.
    4. Statutes — Retroactivity •— Prospectivity.
    Generally, statutes are prospective in their operation except in such cases as the contrary clearly appears from the context of the statute itself.
    5. Boundaries — Vested Rights — Placement of Boundaries.
    No individual or municipality has a vested right or interest in the placement of municipal boundaries.
    6. Boundaries — Boundary Commission — Administrative Law — Statutes.
    A trial court’s review of a decision of the Boundary Commission is governed by the Administrative Procedures Act; the trial court is to determine whether the commission’s decision is supported by competent, material and substantial evidence on the record (MCL 24.306; MSA 3.560[206]).
    7. Boundaries — Boundary Commission — Annexation — Future Effect.
    The Boundary Commission, in determining whether an annexation shall be approved, is obligated to consider, among other things, the future effect its decision may have on the area concerned, including such factors as past and probable future urban growth, probable future needs for services, probable effect of the proposed annexation on the cost and adequacy of services, and the probable increase in taxes.
    8. Administrative Law •— Agency Orders — Prejudice — Statutes.
    An agency’s order will not be set aside as unlawful because it is violative of procedures under the Administrative Procedures Act where a party has not shown prejudice to a substantial right (MCL 24.306; MSA 3.560[206]).
    9. Appeal — Arguments not Raised Below.
    The Court of Appeals will not review arguments raised for the first time on appeal.

      Patterson & Patterson, Whitñeld, Manikoff, Ternan & White, for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Milton I. Firestone and Christopher J. Dembowski, Assistants Attorney General, for the State Boundary Commission.

      Louis C. Andrews, Jr., and Arthur R. Cox, for the City of Rochester.
    Before: R. B. Burns, P.J., and D. E. Holbrook, Jr., and P. J. Glennie, JJ.

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

   P. J. Glennie, J.

Plaintiff Township of Avon appeals as of right the decision of the trial court affirming the Michigan State Boundary Commission’s approval of the City of Rochester’s petition for annexation of approximately 22 square miles of Avon Township, located in Oakland County.

On May 2, 1974, the city filed a petition for annexation, requesting that part of Avon Township be annexed to the City of Rochester, which is a home rule city.

On October 16, 1974, the Boundary Commission declared the petition legally sufficient and held that it had jurisdiction to proceed over the objections of Avon Township. The township claimed the petition before the Boundary Commission should be dismissed because it was in violation of § 9(6) of the home rule cities act, 1909 PA 279; MCL 117.1 et seq.; MSA 5.2071 et seq., in that it was filed within two years of consideration of and decision on a previous annexation petition involving exactly the same area.

A public hearing was set for December 3, 1974, to consider the merits of the city’s petition. Prior to such hearing plaintiffs filed a complaint with the Ingham County Circuit Court seeking to reverse the decision of the Boundary Commission, and subsequently the parties stipulated that such litigation be held in abeyance until the Boundary Commission entered its final order with respect to the city’s petition for annexation and that any annexation ordered by the commission would not be effective until ordered by the circuit court.

The Boundary Commission issued its summary of proceedings, findings of fact, and order on January 27, 1976. Such order approved the petition and ordered the annexation. Over the objection of plaintiffs, the trial court ordered that the matter be held in abeyance pending resolution of Midland Twp v State Boundary Comm, which was then pending before the Michigan Supreme Court. Midland Twp v State Boundary Comm, 401 Mich 641; 259 NW2d 326 (1977).

On March 20, 1978, defendant city moved for summary judgment under GCR 1963, 117.2(1) and (3) and plaintiffs sought summary judgment on June 1, 1978, under GCR 1963, 117.2(3).

On June 7, 1978, the Avon Township Board adopted a resolution of intent to incorporate pursuant to MCL 42.3a; MSA 5.46(3a), and was formally incorporated as a charter township on August 24, 1978. Prior to final incorporation, plaintiffs again moved to dismiss the annexation proceedings, claiming exemption as a charter township under 1978 PA 242.

In an opinion rendered September 11, 1978, the trial court affirmed the action of the Boundary Commission and dismissed plaintiffs’ complaint by order dated September 21, 1978. Plaintiffs filed a claim of appeal on October 11, 1978.

An amended order of the trial court, signed and filed November 29, 1978, made the annexation effective at midnight, November 28-29, 1978. This Court stayed the annexation pending appeal by order dated December 5, 1978.

The township and the individual plaintiffs contend that the annexation ordered by the Boundary Commission should not take effect because 1978 PA 242; MCL 42.34; MSA 5.46(34), amending § 34 of the charter township act, 1947 PA 359; MCL 42.1 et seq.; MSA 5.46(1) et seq., is procedural in nature and should be retroactively applied to annexations finalized before the June 15, 1978, effective date of that act.

Plaintiffs additionally contend that the January 26, 1976, Boundary Commission order approving the annexation of Avon Township to the City of Rochester should be dismissed for two reasons: (1) The subject annexation was a "pending” annexation matter as defined by § 2 of the amendatory statute, thereby exempting Avon Township from annexation; and (2) Avon Township was a township with "statutory proceedings pending to become a charter township on the effective date of [the] act”, as defined by § 2 of the amendatory statute, thereby exempting Avon Township from annexation.

The amendatory statute (1978 PA 242) to the charter township act provided that charter townships were exempted from annexation as follows:

"Sec. 34. (1) Any charter township existing on the effective date of this act and any township thereafter incorporated as a charter township that complies with the following standards, shall be exempt from annexation to any contiguous city except as provided in subsections (2), (3), (4), (5), (6), (7), and (8):

"(a) Has a state equalized valuation of not less than $25,000,000.

"(b) Has a minimum population density of. 150 persons per square mile to be determined by the secretary of state by dividing the most recent regular or special census of population by the number of square miles then under the jurisdiction of the charter township not to include the population or territory within the jurisdiction of an incorporated village.

"(c) Provided fire protection service by contract or otherwise.

"(d) Is governed by a comprehensive zoning ordinance or master plan.

"(e) Provides solid waste disposal services to township residents, within or without the township, by contract, license or municipal ownership.

"(f) Provides water and or sewer services by contract or otherwise.

"(g) Provides police protection through contract with the sheriff in addition to normal sheriff patrol or through its own police department.”

Plaintiffs contend that 1978 PA 242 became effective June 15, 1978, after the Boundary Commission order, but before the circuit court opinion affirming the annexation.

Section 2 of Act 242 provided:

"This Act shall take immediate effect and shall apply to all annexation matters pending before the Michigan state boundary commission which have not, as yet, been decided by said commission, and shall also apply to a township that has statutory proceedings pending to become a charter township on the effective date of this act. ” (Emphasis supplied.)

Section 2 of 1978 PA 242 was entirely eliminated by 1978 PA 591; MCL 42.34; MSA 5.46(34), effective January 4, 1979. Such subsequent amendment kept intact with only minor changes the substantive provisions quoted earlier in this opinion, however.

It is the rule of statutory construction that an amendment to a specific section of a previous statute strikes the former section from the law, obliterating it completely Rookledge v Garwood, 340 Mich 444, 455; 65 NW2d 785 (1954). Once amended, the original section "ceases to exist” and is superseded as if the subsequent amendment had always been there. Ballog v Knight Newspapers, Inc, 381 Mich 527, 537-540; 164 NW2d 19 (1969).

In amending 1947 PA 359, § 34 twice in the same year the intent of the Legislature is clear and unambiguous. The Legislature intended a cutoff date of June 15, 1978, after which the annexation of property in a charter township by a contiguous city or village would be considerably limited.

The principle of statutory construction applicable where no ambiguity exists has been determined by the Supreme Court in City of Lansing v Lansing Twp, 356 Mich 641, 648-649; 97 NW2d 804 (1959), as follows:

" 'The cardinal rule of statutory construction is to ascertain and give effect to the intention of the [L]egislature. If the language of a statutory provision is unambiguous, the intent must be determined accordingly.’ [citing Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956).]

"A statute is not open to construction as a matter of course, but only where the language used in the statute requires interpretation — where it is ambiguous or where 2 or more constructions can be placed upon it, where it is of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning. 'A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself, and any attempt to make it clearer is a vain labor and tends only to obscurity.’ 50 Am Jur, Statutes, § 225, p 207.

"The express wording of the statute in this case does not fall within the above provisions so as to justify judicial interpretation. Certainly it is plain, unambiguous and not subject to different interpretations by 2 reasonable minds. It is clear, definite, and would be easily understood by even those not trained in the law. The language of this statute, therefore, leaves no room for judicial construction.”

The language indicated above aptly describes the statutory language in the instant appeal.

Since § 2 of 1978 PA 242 does not apply to finalized Boundary Commission determinations, it is irrelevant whether Avon Township was a township with statutory incorporation proceedings pending at the effective date of the act. Plaintiffs contend that the provision of § 2 of the act relating to "pending” matters should be read to operate independently of the provision relating to pending charter townships. This would lead to the anomalous result, however, that inchoate charter townships would be exempted from the act even though their annexation matters had been fully resolved, while existing charter townships with similarly finalized annexation matters would not be exempted from the act.

Although the law is clearly stated with respect to whether a statute should be applied retroactively or prospectively, its application to the particular facts of the instant appeal is more troublesome. The general rule relative to the retroactive application of statutes is well established and stated in Briggs v Campbell, Wyant & Cannon Foundry Co, 2 Mich App 204, 215-216; 139 NW2d 336 (1966), aff’d, 379 Mich 160; 150 NW2d 752 (1967):

"The general law as to statutes being prospective or retrospective in nature is found in the case of In re Davis’ Estate, (1951), 330 Mich 647 [48 NW2d 151], wherein Mr. Justice Boyles states on pp 651-653, in part as follows:

"' "We think it is settled as a general rule in this State, as well as in other jurisdictions, that all statutes are prospective in their operation excepting in such cases as the contrary clearly appears from the context of the statute itself.

" ' " 'Indeed, the rule to be derived from the comparison of a vast number of judicial utterances upon this subject, seems to be, that, even in the absence of constitutional obstacles to retroaction, a construction giving to a statute a prospective operation is always to be preferred, unless a purpose to give it a retrospective force is expressed by clear and positive command, or to be inferred by necessary, unequivocal and unavoidable implication from the words of the statute taken by themselves and in connection with the subject matter, and the occasion of the enactment, admitting of no reasonable doubt, but precluding all questions as to such intention.' Endlich, Interpretation of Statutes, § 271.” Detroit Trust Co v City of Detroit, 269 Mich 81 [256 NW 811 (1934)].’ ” (Emphasis in Briggs.)

The general rule against retroactivity, however, is qualified, as explained at length in Hansen-Snyder Co v General Motors Corp, 371 Mich 480, 484-485; 124 NW2d 286 (1963):

"Intervenors quote from 50 Am Jur, Statutes, § 478, and 50 Am Jur, Statutes, § 482, for the general proposition that absent a clearly expressed legislative intent to the contrary it is to be presumed that the legislature intended an enactment to have prospective effect only. It is to be observed, however, that this is stated therein to be especially true when giving a statute retroactive operation will interfere with an existing contract, destroy a vested right, create a new liability in connection with a past transaction, or invalidate a defense which was good when the statute was passed. A retrospective law is therein defined as one which takes away or impairs vested rights, creates a new liability, imposes a new duty or attaches a new disability in respect to transactions or considerations already past. Such is not the situation at bar. Applicable rather, is the language from the latter American Jurisprudence citation that 'remedial statutes, or statutes related to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of a remedy or confirmation of rights already existing, do not come within the legal conception of retrospective law, or the general rule against retrospective operation of statutes. To the contrary, the statutes or amendments pertaining to procedure are generally held to operate retrospectively, where the statute or amendment does not contain language clearly showing a contrary intention. Indeed, in the absence of any savings clause, a new law changing a rule of practice is generally regarded as applicable to all cases then pending. * * * Sometimes the rule is stated in the form that, when a new statute deals with procedure only, prima facie, it applies to all actions — those which have accrued or are pending and future actions.’ Here plaintiffs already had the statutory right to acquire a lien. No right vested in intervenors or anyone else to have the time for serving notice of intent or filing the lien limited to 60 rather than 90 days. The amendment in that regard did not affect vested or substantive rights but pertained solely to procedure for effectuating the statutory right already existing. No vested right can exist to keep statutory procedural law unchanged and free from amendment.”

There is nothing in 1978 PA 591 which would indicate any legislative intent that this act was intended to allow townships to attack Boundary Commission decisions which have become finalized. As previously stated, 1978 PA 591 might, in the future, deprive the Boundary Commission of jurisdiction with respect to certain annexation matters, but it cannot be used to attack a decision of the commission that was lawfully made. It is clear that no individual or municipality has a vested right or interest in the placement of municipal boundaries of the state. Midland Twp v State Boundary Comm, 401 Mich 641; 259 NW2d 326 (1977).

The trial court declined to apply 1978 PA 242 on the basis that the court’s review of the Boundary Commission’s order was limited by § 106 of the Administrative Procedures Act of 1969, 1969 PA 306, § 106; MCL 24.306; MSA 3.560(206). The trial court properly noted that such review is not in the nature of a de novo determination; based on the record the court must determine whether the Boundary Commission’s order was unlawful and arbitrary at the time of such decision.

The plaintiffs also contend the trial court erred in its review and affirmance of the Boundary Commission’s decision approving annexation. Specifically, plaintiffs assert the findings of the Boundary Commission were inadequate and conclusory, and the procedures utilized were unlawful.

A trial court’s review of a final decision of the Boundary Commission is governed by the Administrative Procedures Act of 1969, 1969 PA 306; MCL 24.201 et seq.; MSA 3.560 (101) et seq., as incorporated by reference in the act creating the Boundary Commission, 1968 PA 191, § 18; MCL 123.1018; MSA 5.2242(18). Under the provisions of MCL 24.304; MSA 3.560(204), review is "conducted by the court without a jury and shall be confined to the record”. In addition, courts are instructed by statute as follows:

"Sec. 106. (1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:

"(a) In violation of the constitution or a statute.

"(b) In excess of the statutory authority or jurisdiction of the agency.

"(c) Made upon unlawful procedure resulting in material prejudice to a party.

"(d) Not supported by competent, material and substantial evidence on the whole record.

"(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.

"(f) Affected by other substantial and material error of law.

"(2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings.” MCL 24.306; MSA 3.560(206).

The Michigan Supreme Court, in Midland Twp v State Boundary Comm, 401 Mich 641, 672-674; 259 NW2d 326 (1977), elucidated at length upon judicial review of annexation orders:

"The Administrative Procedures Act provides for judicial review of errors of law and, paralleling the constitutional provision, for a determination whether the administrative action is supported by 'competent, material and substantial evidence on the whole record’. MCL 24.306(d); MSA 3.569(206)(d).

"The key phrase 'substantial evidence’ has been construed by this Court to require

" 'a thorough judicial review of administrative decision, a review which considers the whole record — that is, both sides of the record — not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views. Cognizant of these concerns, the courts must walk the tightrope of duty which requires judges to provide the prescribed meaningful review.’ Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, 393 Mich 116,124; 223 NW2d 283 (1974).

"Resolution of a controverted annexation unavoidably involves political considerations and the exercise of a large measure of discretion. Evaluation of the record and of the commission’s balancing of the criteria and determination of reasonableness implicates the merits of the proposed annexation and poses considerable risk of drawing the judiciary into the resolution of what continues to be — despite the adoption of the administrative format — essentially a political question.

"No vested right or legally protected interest being involved, the judiciary ought to be especially circumspect in reviewing commission rulings and determinations.”

The trial court affirmed the commission’s order as follows:

"Recognizing the political nature of the instant dispute, and after reviewing the record and opinion of the Boundary Commission in the instant case, this Court determines that such order was not unlawful, nor arbitrary, but was based on the consideration of material presented to the Boundary Commission at the time of the original decision. Whether this Court’s opinion would be the same as that rendered by the Boundary Commission in the present case, is irrelevant to the resolution of the instant issue. Rather, as appellate review tribunal, this Court must limit its review to the record and is limited in scope by MCL 24.306, cited above.”

We affirm the trial judge for several reasons. First, the decision of the Boundary Commission is supported by competent, material and substantial evidence on the record. Second, plaintiffs’ contention that the findings are "conclusionary” and therefore inadequate finds no support in the case law or statutes; and third, plaintiffs’ contention that the Boundary Commission disregarded a substantial portion of the record is also rejected. Specifically, Midland Twp, supra, cautioned as follows:

" 'Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views.’” 401 Mich 641, 673; 259 NW2d 326 (1977), quoting Michigan Employment Relations Comm v De troit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974).

Plaintiffs further argue that the Boundary Commission based its decision to annex on "speculation and further hopes”, thereby exceeding the scope of its authority.

The Boundary Commission is obligated to consider in its deliberations the future effect its decision may have on the area concerned. The criteria to be considered by the Boundary Commission in determining whether an annexation shall be approved are set forth in MCL 123.1009; MSA 5.2242(9):

"Criteria to be considered by the commission in arriving at a determination shall be:

"(a) Population; population density; land area and land uses; assessed valuation; topography, natural boundaries and drainage basins; the past and probable future urban growth, including population increase and business, commercial and industrial development in the area. Comparative data for the incorporating municipality, and the remaining portion of the unit from which the area will be detached shall be considered.

"(b) Need for organized community services; the present cost and adequacy of governmental services in the area to be incorporated; the probable future needs for services; the practicability of supplying such services in the area to be incorporated; the probable effect of the proposed incorporation and of alternative courses of action on the cost and adequacy of services in the area to be incorporated and on the remaining portion of the unit from which the area will be detached; the probable increase in taxes in the area to be incorporated in relation to the benefits expected to accrue from incorporation; and the financial ability of the incorporating municipality to maintain urban type services in the area.

"(c) The general effect upon the entire community of the proposed action; and the relationship of the proposed action to any established city, village, township, county or regional land use plan.” (Emphasis supplied.)

Plaintiffs’ objection with respect to the Boundary Commission’s forward-looking approach and abuse of discretion is groundless.

Plaintiffs have failed to show they are entitled to complain about unlawful procedures of the Boundary Commission in that they have not alleged any judicially cognizable prejudice. Pursuant to Midland Twp, supra, no person or township has any vested right to or legally protected interest in the boundaries of governmental units, irrespective of inconveniences and burdens that may attend a change in those boundaries. Hence, plaintiffs have not shown prejudice to a substantial right, a showing which is required by § 106 of the Administrative Procedures Act of 1969, 1969 PA 306, § 106; MCL 24.306; MSA 3.560(206), before an agency’s order will be set aside as unlawful.

Plaintiffs also allege error with respect to the annexation petition, claiming such petition should have been dismissed as required by § 9 of the home rule cities act because it was filed within two years of a previous annexation petition involving the same area.

A petition for annexation by the City of Rochester, involving all of Avon Township, was filed with the County Board of Supervisors in 1967, but was delayed pending Avon Township’s incorporation proceedings, which were not terminated until November 3, 1972. The petition to annex was filed on September 29, 1971, and was denied by the Boundary Commission on July 16, 1973. The annexation petition which is the subject of the instant appeal was filed on May 2, 1974.

It is the contention of Avon Township that the annexation petition originally filed in 1967 and delayed by a pending incorporation petition until November 3, 1972, had the effect of barring the Boundary Commission from considering the annexation petition in question here. In support of this contention, Avon Township relies on § 9(6) of the home rule cities act, 1909 PA 279, § 9(6); MCL 117.9(6); MSA 5.2088(6), which provides as follows:

"(6) The commission shall reject a petition or resolution for annexation of territory which includes all or any part of the territory which was described in any petition or resolution for annexation ñled within the preceding 2 years and which was denied by the commission or was defeated in an election pursuant to subsection (5).”

There is no ambiguity in the statute. Where the meaning of language is plain and unambiguous, it is not necessary to reach strained interpretations; all that is required is that the statute simply be applied as written. Dussia v Monroe County Employees Retirement System, 386 Mich 244; 191 NW2d 307 (1971), Gregory Boat Co v Detroit, 37 Mich App 673; 195 NW2d 290 (1972). It is a basic principle of statutory construction that ordinary words are given their ordinary meaning absent a clear legislative intent to the contrary. People v Smith, 246 Mich 393; 224 NW 402 (1929). The Boundary Commission committed no error of law in finding the petition legally sufficient.

Plaintiffs’ final issue raises the question whether the "Headlee” tax amendment, Const 1963, art 9, §§ 25-34, has the effect of invalidating this annexation without a vote of the electors in the area subject to annexation.

This issue is not properly before this Court. The Court of Appeals does not review arguments raised for the first time on appeal. Magreta v Ambassador Steel Co, 380 Mich 513; 158 NW2d 473 (1968), Walls v Director of Institutional Services, 84 Mich App 355; 269 NW2d 599 (1978).

In addition, although the annexation has not yet been implemented, the Boundary Commission’s decision ordering annexation was finalized nearly three years prior to the effective date of the Head-lee amendment. Nowhere in the amendment is there any expression of intent that it be applied retroactively.

The plaintiffs raise other issues which do not merit discussion or decision.

The judgment of the trial court is affirmed and the stay order issued in December 1978 is dissolved.

No costs, a public question being involved.


text:
    PEOPLE v MOORE
    Docket No. 78-4580.
    Submitted December 13, 1979, at Lansing.
    Decided April 21, 1980.
    Defendant, David J. Moore, was convicted of assault with intent to do great bodily harm less than murder in the Monroe Circuit Court, C. Ralph Kohn, J. He subsequently was convicted, on his plea of guilty, of being a third-time habitual offender. At the time of the charged offense, defendant was in the custody of the Department of Corrections but permitted to serve his time outside of a state prison. Trial was not commenced until 254 days after the incident and his arrest. The trial court denied defendant’s motion to quash the assault charge for violation of the 180-day rule, holding that the congestion of the court docket provided a sufficient excuse for noncompliance. Defendant appeals. Held:

    1. Chronic congestion of a trial court’s docket is not excused when applying the mandate of statutes which require that an inmate be brought to trial on pending charges within 180 days or the charges are to be dismissed. A purpose of the statutes is to give an inmate an opportunity to have all of the sentences on charges pending against him to run concurrently, and a mere recitation of the factor of a crowded docket, without more, cannot warrant giving the incarcerated defendant a longer imprisonment than might otherwise be possible.
    2. The habitual offender statute may be used to augment a statutorily mandated consecutive sentence for an offense committed while incarcerated in a state prison.
    Remanded for further proceedings.
    1. Criminal Law — Statutes — Inmates — Trial on Pending Charges — Jurisdiction Over Defendant — Good Faith Action.
    A statute which requires that a prison inmate be brought to trial on an untried charge within 180 days from the time the department of correction notifies the prosecutor that the defendant is incarcerated for a previous conviction has been interpreted to require only that good faith action to commence proceedings must be initiated within the time limit in order to preserve jurisdiction to try the charge; thereafter, jurisdiction is lost only if the initial action is followed by inexcusable delay which evidences intent not to bring the case promptly to trial (MCL 780.131, 780.133; MSA 28.969[1], 28.969[3]).

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 246, 249, 251.
    [2] 21 Am Jur 2d, Criminal Law §§ 246, 249, 251, 547.
    [3] 21 Am Jur 2d, Criminal Law § 246.
    [4] 39 Am Jur 2d, Habitual Criminals and Subsequent Offenders §§ 1-5.

      2. Criminal Law — Statutes — Inmates — Trial on Pending Charges — Crowded Dockets.
    Chronic congestion of a trial court’s docket is not excused when applying the mandate of statutes which require that an inmate be brought to trial on pending charges within 180 days or the charges are to be dismissed; a purpose of the statutes is to give an inmate an opportunity to have all of the sentences on charges pending against him to run concurrently, and a mere recitation of the factor of a crowded docket, without more, cannot warrant giving the incarcerated defendant a longer imprisonment than might otherwise be possible (MCL 780.131, 780.133; MSA 28.969[1], 28.969[3]).
    3. Criminal Law — Speedy Trial — Inmates — Commencement of Proceedings — 180-Day Rule.
    The "180-day rule” of the statute which controls the time for commencing a criminal prosecution against a person serving a prison sentence is an effort by the Legislature to secure to state prison inmates their constitutional right to a speedy trial (US Const, Am VI; Const 1963, art 1, § 20; MCL 780.131 et seq.; MSA 28.969[1] et seq.).

    4. Criminal Law — Sentence Enhancement — Habitual Criminals — Inmates — Statutes.
    The habitual offender statute may be used to augment a statutorily mandated consecutive sentence for an offense committed while incarcerated in a state prison (MCL 769.11; MSA 28.1083).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and Mitchell Hamilton Nelson, Assistant Prosecuting Attorney, for the people.

      Janet Tooley, Assistant State Appellate Defender, for defendant on appeal.
    Before: T. M. Burns, P.J., and J. H. Gillis and Bashara, JJ.
   T. M. Burns, P.J.

Defendant, David Moore, appeals of right his June 26, 1978, jury conviction of assault with intent to do great bodily harm less than murder. MCL 750.84; MSA 28.279. On June 30, 1978, defendant pleaded guilty to a supplemental information charging him as a third-time habitual offender. MCL 769.11; MSA 28.1083. He was sentenced to a term of 10 to 15 years imprisonment on August 23, 1978.

The incident out of which defendant’s assault conviction arose occurred on the night of October 15, 1977. At the time of the assault, defendant, who had a prior conviction for possession of drugs, was in the custody of the state prison system and w;as participating in its Residential Homes Program. By virtue of his participation in this preparóle program, defendant was permitted to serve the time remaining on his sentence outside of a state prison. Defendant argues that because he was an inmate of the state prison system at the time of this offense, the prosecutor’s 254-day delay in bringing him to trial violated MCL 780.131; MSA 28.969(1), and thereby divested the circuit court of jurisdiction over the instant criminal complaint.

MCL 780.131; MSA 28.969(1), commonly referred to as the 180-day rule, provides:

"Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.”

Failure of the prosecutor to comply with this statute can result in the dismissal with prejudice of the charges pending against the incarcerated defendant. Specifically, this remedy, as embodied in MCL 780.133; MSA 28.969(3), provides that if a prosecutor fails to bring an inmate to trial within 180 days after receiving notice of any untried warrant:

"no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

As interpreted by the courts of the state, the 180-day rule does not require that trial be concluded, or even commenced, within that period of time. Rather, the statute merely obligates a prosecutor to take good faith action on the case during the 180-day time period and to proceed promptly in readying the case for trial. People v Castelli, 370 Mich 147; 121 NW2d 438 (1963), People v Wilder, 51 Mich App 280; 214 NW2d 749 (1974), lv den 394 Mich 774 (1975), People v Potts, 46 Mich App 538; 208 NW2d 583 (1973), People v Asher, 32 Mich App 380; 189 NW2d 148 (1971), lv den 385 Mich 767 (1971). If the prosecutor makes a good faith action to commence the proceedings, jurisdiction thereafter will be lost only if the initial action is followed by an inexcusable delay that evidences an intent not to bring the case to trial promptly. People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959), People v Forrest, 72 Mich App 266; 249 NW2d 384 (1976).

In the instant case, defendant’s motion to have the assault charge dismissed because of the delay in bringing him to trial was denied by the lower court judge on the ground that the congestion of the circuit court docket provided a sufficient excuse for noncompliance with the statute. We disagree and hold that this reason is not sufficient.

In general, unexplained delays in the bringing of a case to trial are attributable to the prosecution. People v Forrest, id. In Forrest, a delay of 215 days in the scheduling of a defendant’s trial occurred. The prosecution had taken no action on the defendant’s case during this time. Nonetheless, the defendant’s motion to dismiss was denied. On appeal, this Court reversed:

"The principle question on this appeal is whether the delay by the trial court in setting a trial date is an excusable delay which should not be charged against the people. Prior decisions of this Court indicate that the ultimate responsibility for going forward with a case falls on the prosecution, even if delay results, for example, from the illness of the trial judge. * * * In People v Holbrook, 60 Mich App 628, 635; 231 NW2d 469 (1975), lv granted, 395 Mich 752 (1975), [appeal dismissed 399 Mich 873 (1977)], this Court indicated that the trial judge, in setting up the calendar, cannot by inaction defeat the intendment of the speedy trial statute.

"In the case at bar the people have not made an affirmative showing of unavoidable delays which might justify this inaction. A mere recitation of the factor of a crowded docket, without more, cannot warrant visiting on the incarcerated defendant a longer imprisonment than might otherwise be in store. If congestion and delay result from inadequate court staffing or funding, the inevitable results of those delays must fall upon the people, who have the power to remedy court congestion.” 72 Mich App 266, 270, 273.

Similarly, in People v Schinzel, 86 Mich App 337; 272 NW2d 648 (1978), this Court held that delays in bringing a case to trial that were attributable to the judiciary were chargeable against the prosecution. The Schinzel Court noted that the duty of the prosecutor to adequately explain a delay in bringing a case to trial was not met where the proffered reason for the delay concerned administrative procedures of the trial court. See also, People v Petrov, 75 Mich App 532; 255 NW2d 673 (1977) (holding that a delay in trial on account of a congested court docket is chargeable against the prosecution where a defendant claims that his constitutional guarantee of a speedy trial has been violated).

Thus, we cannot affirm the lower court’s ruling on defendant’s motion to dismiss. We are reluctant, however, to state that the prosecutor cannot adequately explain his delay in bringing defendant to trial. Therefore, we remand this case and instruct that an evidentiary hearing be held to determine the reason for the delay in bringing defendant to trial.

In order to dispose of this issue in all of its respects, we address an issue likely to arise on remand. In People v Loney, 12 Mich App 288, 292; 162 NW2d 832 (1968), a panel of this Court held that the 180-day rule:

"was intended to give the inmate, who had pending offenses not yet tried, an opportunity to have the sentences run concurrently consistent with the principle of law disfavoring accumulations of sentences. This purpose, however, does not apply in the instance of a new offense committed after imprisonment, nor where the statute, as in the case of an escape or attempted escape, sets up a mandatory consecutive sentence. The legislature was not concerning itself with the need for dispatch in the handling of a charge brought against an inmate for offenses committed while imprisoned.” (Emphasis in original.)

We disagree with this interpretation of the statute.

The primary purpose of the judiciary when interpreting statutes is to ascertain and give effect to the intention of the Legislature. Melia v Employment Security Comm, 346 Mich 544; 78 NW2d 273 (1956). However, a statute must admit of some ambiguity before a court will be required to examine the legislative intent behind it in an attempt to ascertain its meaning. Goodwin v Board of Education of the School Dist of the City of Kalamazoo, 82 Mich App 559; 267 NW2d 142 (1978), Wackerman v Michigan, 47 Mich App 228; 209 NW2d 493 (1973), lv den 390 Mich 797 (1973). Where the language of a statute is unambiguous, the legislative intent is obvious and must be determined accordingly. Lansing v Lansing Twp, 356 Mich 641; 97 NW2d 804 (1959).

We find no ambiguity in the 180-day rule statute that would permit us to make exceptions in the application of its plain language. Even if it were reasonable and otherwise valid to distinguish, as Loney did, between inmates who commit criminal offenses prior to incarceration and those who commit them subsequently, the distinction is one that the Legislature, not this Court, should make. However, our decision here rests not only on the concept of separation of powers, but also upon our belief that the rationale underlying Loney is no longer completely valid.

The Loney Court justified its result on what it believed was the intent of the Legislature in passing this statute. Loney found this intent to be that inmates of state penal institutions should serve concurrent, rather than consecutive, sentences. Because inmates who commit criminal offenses while incarcerated are not entitled to concurrent sentencing, see MCL 768.7a; MSA 28.1030(1), an incarcerated defendant was not prejudiced by delay of trial. However, since Loney was decided the Michigan Supreme Court has recognized that the 180-day rule protects more than just a defendant’s right to serve concurrent sentences.

In People v Hill, 402 Mich 272, 280; 262 NW2d 641 (1978), the Supreme Court found that the purpose of the 180-day rule was to "secure to state prison inmates their constitutional right to a speedy trial”. As set forth in the United States Constitution, US Const, Am VI, and the Michigan Constitution, Const 1963, art 1, § 20, the right of an accused to a speedy trial does not depend upon whether the charged offense was committed prior to or during incarceration for another crime. Therefore, we hold that Loney was wrongly decided and that persons such as defendant who commit crimes while incarcerated are entitled to the protection of the 180-day rule.

We find no merit in the other issues raised by defendant in this appeal. It is well settled that the habitual offender statute can be applied to enhance a sentence for prison escape, MCL 750.193; MSA 28.390, even though the sentence for the latter offense must be served consecutively to any sentence presently being served. People v Mauch, 23 Mich App 723; 179 NW2d 184 (1970), lv den 384 Mich 765 (1970). Inasmuch as we can discern no significant distinction between these two prison-related offenses, we reject defendant’s argument that the habitual offender statute may not be used to augment a statutorily mandated consecutive sentence for an offense committed while incarcerated in a state prison.

We find no evidence in the record to support defendant’s argument that certain instructions to the jury amounted to an impermissible comment on the evidence by the trial judge. Further, in light of defendant’s failure to object at sentencing to certain material in the presentence report that had been obtained from his wife and because defendant failed to move for resentencing and thereby create an evidentiary record to show at minimum that the judge relied upon this allegedly improper material, we decline to consider whether the inclusion of statements by defendant’s wife in his presentence report violated the spousal testimonial privilege. MCL 600.2162; MSA 27A.2162.

Remanded for further proceedings consistent with this opinion.

       Although the opinion of this Court in Schinzel was reversed pursuant to an order of the Supreme Court, see People v Schinzel, 406 Mich 888 (1979), we do not interpret this reversal as comment by the Supreme Court on the principal that a defendant’s rights under the 180-day rule are not violated where delay in trial is caused by the judiciary. Rather, the Supreme Court seems to have found insufficient evidence in the record to support the holding of this Court that the delay there was caused by the trial judge.