author: Bashara, J.

text:
    THREE LAKES ASSOCIATION v KESSLER
    Docket No. 77-1981.
    Submitted April 5, 1979, at Grand Rapids.
    Decided July 23, 1979.
    Plaintiff Three Lakes Association (Three Lakes) is a nonprofit corporation interested in protecting and preserving Torch Lake. Defendants are associated with White Sands Estates, a 25-acre subdivision near Torch Lake and comprised of 47 residential lots and Troy Park, an area dedicated for the use of all the lot owners. The trustees of defendant White Sands Estates Property Owners Association own a strip 42 feet by 165 feet abutting the lake on one end and Troy Park on the other, which the White Sands Estates lot owners intend to use as an access to Torch Lake. Plaintiff sued the White Sands Estates Property Owners Association, its trustees and others to enjoin the transfer of access to the backlot owners, claiming that the planned use would be unreasonable and in derogation of the common plan of single-tier, single-family shoreline development and would result in an adverse environmental effect on the lake. The Antrim Circuit Court, William R. Brown, J., held that the ownership of the access strip vested its beneficial use in all the owners of the subdivision property and that there was no unlawful attempt to create riparian rights in lands not abutting the lake. The court found no common plan of development and no generalized nuisance. It did find, however, that intensive use could represent a localized nuisance to riparian owners close to the access strip and ordered that no motor vehicles or boat launchings be permitted, that a maximum of 12 persons could use the access at one time and that only one dock, consistent with the other docks in the area, could be constructed and maintained. Plaintiff appeals. The Court of Appeals allowed several owners of riparian land near the access strip to intervene as appellants. Held:

      References for Points in Headnotes

       12 Am Jur 2d, Boats and Boating § 24.
    78 Am Jur 2d, Waters §§ 54, 260-263, 265.
    Rights of fishing, boating, bathing, or the like in inland lakes. 57 ALR2d 569.

       78 Am Jur 2d, Waters §§ 122, 123.

       42 Am Jur 2d, Injunctions §§ 37, 275.

       42 Am Jur 2d, Injunctions §§ 352, 353.
    78 Am Jur 2d, Waters §§ 58, 279.

      1. The several riparian owners on an inland lake and their lessees and licensees may use the surface of the whole lake for boating and fishing, so far as they do not interfere with the reasonable use of the waters by other riparian owners, and, normally, any reasonable use cannot be precluded.
    2. The definition of "reasonable use” of water by riparian owners, their lessees and licensees, depends on the facts of each case. A court, in determining what constitutes "reasonable use”, should consider the following: the size, character and natural state of the water course; the type and purpose of the proposed uses and their effect on the water course; and, the benefit to the user as opposed to the injury to other riparian owners.
    3. A court in granting equitable relief is not bound by the prayer for relief but may fashion a remedy as warranted by the circumstances. However, an injunction which will be ineffectual or which leaves too many questions or difficulties as to the intended enforcement should not be granted.
    4. An injunction fashioned by the trial court setting forth restrictions on the use of lake frontage by a land development company which seem reasonable on their face but present difficulties in their intended enforcement by leaving too many questions open about the final remedy will not be affirmed by the Court of Appeals.
    Remanded for further proceedings.
    1. Waters and Water Courses — Riparian Owners — Reasonable Use.
    The several riparian owners on an inland lake and their lessees and licensees may use the surface of the whole lake for boating and fishing, so far as they do not interfere with the reasonable use of the waters by other riparian owners, and, normally, any reasonable use cannot be precluded; access rights cannot be restricted if reasonable.
    2. Waters and Water Courses — Riparian Owners •— Reasonable Use.
    The definition of "reasonable use” of water by riparian owners, their lessees and licensees, depends on the facts of each case; a court, in determining what constitutes "reasonable use”, should consider the following: the size, character and natural state of the water course; the type and purpose of the proposed uses and their effect on the water course; and, the benefit to the user as opposed to the injury to other riparian owners.
    3. Equity — Remedies — Enforcement.
    A court in granting equitable relief is not bound by the prayer for relief but may fashion a remedy as warranted by the circumstances; however, an injunction which will be ineffectual or which leaves too many questions or difficulties as to the intended enforcement should not be granted.
    4. Waters and Water Courses — Lake Frontage — Injunction — Enforcement — Appeal and Error.
    An injunction fashioned by the trial court setting forth restrictions on the use of lake frontage by a land development company which seemed reasonable on their face but presented difficulties in their intended enforcement by leaving too many questions open about the final remedy will not be affirmed by the Court of Appeals.

      John W. Unger, P.C., and Jaffe, Snider, Raitt, Garratt & Heuer, P.C., for plaintiff.

      Donald J. Berlage, P.C., for defendants.
    Before: D. E. Holbrook, Jr., P.J., and R. B. Burns and Bashara, JJ.
   Bashara, J.

This appeal concerns the access rights of backlot subdivision owners to a private lake.

Plaintiff Three Lakes is a nonprofit corporation primarily interested in preservation and protection of Torch Lake.

Defendants are associated with White Sands Estates, a 25-acre subdivision being developed near Torch Lake. The subdivision is comprised of 47 residential lots and Troy Park, an area dedicated for the use of all the lot owners. (See appendix.)

This litigation involves an undeveloped parcel of lakefront property, 42 feet by 165 feet, that abuts the east end of Troy Park. The defendants intend to use this parcel as an access to Torch Lake.

Plaintiffs complaint sought an injunction that would enjoin defendants from transferring their access rights to the backlot owners. Plaintiff argues that the planned use would be unreasonable, in derogation of the common plan of single-tier, single-family shoreline development and result in an adverse environmental effect on the lake.

Following a bench trial, the court found that the conveyance of the access strip to the trustees of the White Sands Estates Property Owners Association vested the beneficial use of the access lot in the owners of the subdivision property. Therefore, there was no unlawful attempt to artificially create riparian rights in lands not abutting the lake. The trial court further found that plaintiff had failed to prove a common plan of development.

In determining whether the access would create an unreasonable use, the court considered the local zoning ordinances, the possibility of pollution, erosion, increased noise and activity and applied the factors outlined in Thompson v Enz, 379 Mich 667; 154 NW2d 473 (1967).

The trial court found that a generalized nuisance and interference with all riparian rights had not been demonstrated. However, since intense use could represent a localized noise and activity nuisance to riparian owners close to the access site, the court held that motor vehicles and boat launchings would not be permitted, that a maximum of 12 persons could use the access at one time and that only one dock, consistent with other docks in the area, could be constructed and maintained.

Actions involving "funnel” developments on lakes have previously been before the courts. However, this is the first instance wherein the lake frontage property title is held by an owners association.

At the outset, it should be emphasized that although equity cases are reviewed on appeal de novo, great weight is given to the findings of the trial court, and the findings and decisions below will not be disturbed unless we are convinced we would have reached a different result had we been sitting as the trial court. Pierce v Riley, (Supplemental Opinion), 51 Mich App 504, 507-508; 215 NW2d 759 (1974).

Plaintiff first claims that the trial court erred in finding that the conveyance of riparian land to a property owners association gave nonriparian owners the right to use the riparian land.

In Thompson v Enz, supra, the defendant developers had planned to dredge artifical channels across two lakefront lots so that 128 backlots would have access to the lake. There the Court held that:

"* * * riparian rights are not alienable, severable, divisible, or assignable apart from the land which includes therein, or is bounded, by a natural water course.
"While riparian rights may not be conveyed or reserved—nor do they exist by virtue of being bounded by an artificial water course—easements, licenses and the like for a right-of-way for access to a water course do exist and ofttimes are granted to nonriparian owners.
"We will, therefore, treat the proposal here as though easements for rights-of-way for access are given to the back lot purchasers.”. 379 Mich 667, 686.

In Opal Lake Ass’n v Michaywé Limited Partnership, 47 Mich App 354; 209 NW2d 478 (1973), the defendant developers planned a Swim’n Sun Club on their 800 feet of shoreline property. The club would eventually be owned by the Michaywé Owner’s Association comprised of all parties purchasing property in the development. Michaywé’s plans included development of 2,250 residential lots and approximately 1,300 condominium units and 300 mobile home sites.

A panel of this Court, in refusing to enjoin the development of the club, held that,

"The rule is that on an inland lake where there are several riparian owners, such proprietors and their lessees and licensees may use the surface of the whole lake for boating and fishing, so far as they do not interfere with the reasonable use of the waters by other riparian owners. Bauerle v Charlevoix Road Commrs, 388 Mich 520, 525 (1972); Beach v Hayner, 207 Mich 93, 96 (1919). Plaintiff cannot normally preclude, therefore, any reasonable use of Michaywé’s Opal Lake access site by Michaywé’s licensees.” 47 Mich App 354, 367.

The directive of the preceding cases is that access rights cannot be restricted if reasonable. It should be noted that the riparian owners were the developers and there was no indication they were owners of any of the property in the backlots being granted access.

Here the title to the property is already vested in the representatives of the owners association, who have even more of an interest in the land and the access.

The trial court did not err in its finding concerning the access rights.

Plaintiff next contends that the use of the access property as allowed by the trial court would be unreasonable.

This argument is initially based on the proposition that the use is contrary to the alleged common plan of development in the locality. Plaintiff failed to show any express deed restrictions as were present in Indian Village Ass’n v Barton, 312 Mich 541, 550-551; 20 NW2d 304 (1945), the case on which it relies. Furthermore, zoning ordinances in the area clearly allow shared access plans.

Plaintiff next argues that the proposed use is not reasonable as that term has been defined in Michigan case law.

The definition of reasonable use must depend upon the facts of each case. Hoover v Crane, 362 Mich 36, 40; 106 NW2d 563 (1960), Pierce v Riley, 81 Mich App 39, 45; 264 NW2d 110 (1978).

It is generally agreed that the rules laid down in Thompson, supra, apply as controlling law. Early v Baughn, 61 Mich App 244, 245; 232 NW2d 375 (1975), Pierce v Riley, 16 Mich App 419; 168 NW2d 309 (1969).

The criteria set forth in Thompson, supra, for determining reasonableness can be summarized as follows. First, attention should be given to the size, character and natural state of the water course. Second, consideration should be given the type and -purpose of the uses proposed and their effect on the water course. Third, the court should balance the benefit that would inure to the proposed user with the injury to the other riparian owners.

In a well-reasoned and articulate opinion, the trial court considered the foregoing in relation to the testimony given. We cannot say we would have reached a different decision sitting as the trier of fact.

Plaintiff next argues that the trial court erred in allowing any use of the access due to the enforcement problems inherent in the order.

In granting equitable relief, a court is not bound by the prayer for relief but may fashion a remedy as warranted by the circumstances. Thompson v Enz, supra, Pierce v Riley (Supplemental Opinion), supra, 507.

An injunction which will be ineffectual or which leaves too many questions or difficulties as to the intended enforcement will not be granted. Opal Lake, supra, Pierce v Riley (Supplemental Opinion), supra.

In the case at bar, no specific provisions were made concerning the responsibility for water testing and enforcement of the limited-use provisions. Plaintiff has no right of entry for informational or enforcement purposes. Therefore, we would remand this case to the trial court to-make further appropriate determinations in light of this opinion, Opal Lake Ass’n v Michaywé Limited Partnership, 63 Mich App 161; 234 NW2d 437 (1975), and Opal Lake Ass’n v Michaywé Limited Partnership, 47 Mich App 354; 209 NW2d 478 (1973).

No costs, neither party prevailing fully.


source: Caselaw Access Project

author: T. M. Burns, J.

license: Public Domain

text:
    PEOPLE v BLAUVELT
    Docket No. 77-4908.
    Submitted March 8, 1979, at Detroit.
    Decided July 23, 1979.
    Michael G. Blauvelt was convicted in the 35th District Court of unlawful display of an emblem or insignia on a motor vehicle. The defendant appealed to circuit court. Wayne Circuit Court, Joseph Sullivan, J., reversed the conviction, finding the statute under which the defendant was prosecuted to be overbroad on its face. The people appeal by leave granted. Held:

    The statute under which the defendant was convicted, one which makes it unlawful for any person to display on his or her motor vehicle any emblem or insignia of any organization, association, fraternity, lodge, club or order unless the owner of the motor vehicle be a member of such an organization, the insignia of which is so displayed, attempts to prohibit "pure speech”. The statute as written sweeps too broadly and is invalid on its face. The statute does not attempt to differentiate between legitimate and nonlegitimate use of an organization’s emblem or insignia.
    Aifirmed.
    1. Constitutional Law — Freedom of Speech — Statutes — Over-breadth Challenge — Chilling Effect.
    An overbreadth challenge to a statute on the basis that the statute infringes on the freedom of speech may properly be accepted when the state attempts to prohibit protected "speech” and not merely conduct associated with speech; and, because of the possible chilling effect that the statute may have on others, even one whose speech might constitutionally be regulated under a different, more narrowly drawn statute is allowed to raise a constitutional challenge by presenting claims of others not actually before the court.
    References for Points in Headnote
    16 Am Jur 2d, Constitutional Law § 346.
    73 Am Jur 2d, Statutes § 346.
    The Supreme Court and the right of free speech and press. 16 L Ed 2d 1053. Supreme Court’s views as to overbreadth of legislation in connection with First Amendment rights. 45 L Ed 2d 725.

      2. Constitutional Law — Freedom of Speech — Pure Speech — Regulation of Pure Speech — Compelling State Interest.
    The state, in attempting to control the content of "pure speech”, is required to demonstrate a compelling state interest in regulating the content of the "speech” before such regulations must be upheld.

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

      Carl R. Meyer, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and T. M. Burns and R. M. Maher, JJ.
   T. M. Burns, J.

Defendant was convicted in the 35th District Court of a violation of MCL 430.53; MSA 18.663, unlawful display of an emblem or insignia on a motor vehicle. Criminal penalties were imposed. On appeal, the circuit court reversed the conviction, finding the statute to be unconstitutionally overbroad on its face. The people appeal by leave granted and we affirm.

The statute, § 3 of 1929 PA .269, provides:

"It shall be unlawful for any person to display or permit to be displayed on his or her motor vehicle any emblem or insignia of any organization, association, fraternity, lodge, club or order, unless the owner of such motor vehicle be a member of the organization, association, fraternity, lodge, club or order, the emblem or insignia of which is so displayed: Provided, That the provisions of this act shall not apply to the owner or owners of any motor vehicles upon which such emblem or insignia is displayed solely for the purposes of participation in any public parade, or at any public fair, exhibit, or carnival.” MCL 430.53; MSA 18.663.

Under established first amendment analysis, an overbreadth challenge to a statute may properly be accepted when the state attempts to prohibit protected "speech” and not merely conduct associated with speech. Because of the possible chilling effect that the statute may have on others, even one whose speech might constitutionally be regulated under a different, more narrowly drawn statute is allowed to raise a constitutional challenge by presenting claims of others not actually before the court. Broadrick v Oklahoma, 413 US 601, 611-616; 93 S Ct 2908; 37 L Ed 2d 830 (1973). Even recognizing that these rules are exceptions to normal rules of standing and adjudication, we conclude that it was proper for the circuit court to accept this overbreadth challenge to the statute.

In this case we are dealing with a type of "pure speech”. The state is attempting to control the content of certain displays on automobiles by imposing criminal penalties. In such cases the people are required to demonstrate a compelling state interest in regulating the content of the "speech” before such regulations must be upheld. Advisory Opinion on Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich 465, 481; 242 NW2d 3 (1976).

The people contend that the statute is a valid attempt to punish individuals who attempt to fraudulently obtain the benefits of membership in an association or organization without actually being a member. The people use as an example the possibility that an emblem might entitle the member to free parking or other use of an organization’s assets and that the fraudulent use of the emblem by a nonmember would lead to the demise of these organizations.

Assuming that prevention of petty frauds is indeed the statute’s intent, its sweep is clearly overbroad. The statute does not limit its application to attempts to defraud or gain improper advantage from use of an organization’s emblem or insignia. Its ban is absolute without reference to intent or purpose. Every display on a vehicle owned by a nonmember subjects the owner to fine and imprisonment.

If the statute is applied as written, an individual nonmember displaying the emblem of the Boy Scouts, the Knights of Columbus or the Masonic Lodge subjects himself to criminal prosecution. This is so regardless of the absence of any intent to defraud or even if done in connection with other words to express an opinion. We have no doubt that the statute as written sweeps with too broad a broom and it is invalid on its face.

The trial court correctly concluded that the statute is invalid on its face. It does not even attempt to differentiate between legitimate and nonlegitimate use of an organization’s emblem or insignia. The sole test of a valid use is membership in the organization. This is improper.

Affirmed.

       Defendant was stopped for defective equipment by a police officer. When the officer noted that defendant had a POAM (Police Officers Association of Michigan) sticker on the windshield of the car he was driving he asked defendant if he or any member of his family was a policeman. When defendant stated he had no connection with the police, a citation was issued.

       For an overview of the overbreadth doctrine, see, Anno: Supreme Court’s views as to overbreadth of legislation in connection with ñrst amendment rights, 45 L Ed 2d 725.

        Cf. Wooley v Maynard, 430 US 705; 97 S Ct 1428; 51 L Ed 2d 752 (1977), where the Supreme Court held that the State of New Hampshire could not constitutionally require the Maynards to display the state motto, "Live Free or Die”, on their automobile license plate. The case is relevant to show the reach of the amendment’s protection even though in this case we are dealing with a prohibition and not a compulsion.

       The title to 1929 PA 269 provides: "An Act to protect benevolent, humane, fraternal or charitable corporations in the use of their names and emblems; to provide penalties for the violation thereof; and to repeal act number two hundred fifty-five [255] of the public acts of nineteen hundred nine [1909].”


author: Beasley, J.

text:
    MICHIGAN NATIONAL BANK OF DETROIT v DUNBAR
    Docket No. 78-856.
    Submitted June 13, 1979, at Detroit.
    Decided July 23, 1979.
    Plaintiff, Michigan National Bank of Detroit, is the holder of a promissory note made by defendant Ronald Dunbar and guaranteed by defendant Edward J. Holland, Jr. Plaintiff sued defendants on the note in the Wayne Circuit Court and defendants asserted various affirmative defenses including that the contract of which the note was a part was illegal. The trial court conducted a pretrial hearing in response to plaintiff’s motion for summary judgment for failure to state a defense and for the reason that no issue of material fact existed. The court, Andrew DiMaggio, J., granted summary judgment, apparently holding that the defenses were insufficient because none could be established without using parol evidence. Defendants appeal. Held:

    1. A motion for summary judgment for failure to state a valid defense to the claim tests the legal sufficiency of the defense and should not be granted unless the defenses as pleaded are so clearly untenable as a matter of law that no factual development could possibly deny the claimant’s right to recovery.
    2. Evidence that a written instrument is part of an illegal contract is not excluded by the parol evidence rule.
    Reversed and remanded.
    1. Judgment — Summary Judgment — Test for Summary Judgment — Court Rules.
    A motion for summary judgment for failure to state a valid defense to the claim tests the legal sufficiency of the defense and should not be granted unless the defenses as pleaded are so clearly untenable as a matter of law that no factual development could possibly deny the claimant’s right to recovery (GCR 1963, 117.2[2]).

      References for Points in Headnotes

       73 Am Jur 2d, Summary Judgment § 27.

       30 Am Jur 2d, Evidence § 1035.
    Admissibility of oral evidence to show that a writing was a sham agreement not intended to create legal relations. 71 ALR2d 382.

      2. Evidence — Parol Evidence — Illegality of a Contract.
    Evidence that a written instrument is part of an illegal contract is not excluded by the parol evidence rule.

      Kramer, Mellen, Magner & Ishbia, P.C., for plaintiff.

      Patmon, Young & Kirk, P.C. (by Ulysses W. Boykin, III), for defendants.
    Before: J. H. Gillis, P.J., and Beasley and R. M. Ransom, JJ.

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

   Beasley, J.

Plaintiff alleges that on December 17, 1971, defendant, Ronald Dunbar, delivered his promissory note to plaintiff for $12,400 with interest at 7% payable 180 days after date. Plaintiff also alleges that, as security for the loan evidenced by the promissory note, defendant, Edward J. Holland, Jr., guaranteed payment.

Plaintiff says defendant indicated the purpose of the loan was for oil investment. The note was subsequently renewed until March 12, 1973. When the note was not paid, plaintiff started suit against both defendants Dunbar and Holland on August 16, 1973.

Eventually, in January, 1978, plaintiff made an oral motion for summary judgment under GCR 1963, 117.2(2) for failure to state a defense and under GCR 1963, 117.2(3) on the basis that there was not any issue of material fact.

In their answers to the complaint and amended complaint of plaintiff, defendants assert various affirmative defenses. The trial court conducted a separate pretrial hearing, after which plaintiff’s motion for summary judgment was granted. Defendants appeal as of right.

We . reverse the order granting summary judgment, set aside the judgment and remand for trial on the merits.

As indicated, plaintiffs motion for summary judgment was in the alternative, either under GCR 1963, 117.2(2) or under GCR 1963, 117.2(3).

GCR 1963, 117.2(2) provides for summary judgment where the opposing party has failed to state a valid defense to the claim asserted against him. Such a motion tests the legal sufficiency of the defense as pleaded.

The trial court seemed to hold that the defenses were insufficient because none could be established without using parol evidence. In Bob v Holmes, we said:

"* * * the proper test for such a motion would be whether defendants’ defenses are so clearly untenable as a matter of law that no factual development could possibly deny plaintiffs’ right to recovery.”

We decline to hold defendants’ claimed defenses so clearly untenable as to be impossible of factual development. For example, if defendants can prove securities law violations, even though the violations were of Federal laws involving plaintiff, defendants may have a good defense. Evidence that a written instrument is part of an illegal contract is not excluded by the parol evidence rule.

We hesitate to rule on the various other defenses asserted by defendants until we have a trial record before us with the trial judge’s rulings and findings.

Plaintiff’s other alternative claim under GCR 1963, 117.2(3) would have to be based upon an assertion that there was no genuine material issue of fact. We do not find this to be the case; obviously, defendants raise various issues of fact, the weight and materiality of which can only be measured in a trial context.

As indicated, under these circumstances, we find error in disposing of this case by summary judgment without trial.

Reversed and remanded for trial on the merits.

        Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974).

       78 Mich App 205, 211; 259 NW2d 427 (1977).

       See, Aetna State Bank v Altheimer, 430 F2d 750, 754 (CA 7, 1970).

        Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195, 204; 220 NW2d 664 (1974).


author: Mackenzie, J.

text:
    ANTKIEWICZ v MOTORISTS MUTUAL INSURANCE COMPANY
    Docket No. 78-1421.
    Submitted January 17, 1979, at Detroit.
    Decided July 23, 1979.
    Leave to appeal applied for.
    Vincent Antkiewicz and his brother Roger Antkiewicz operated the Ambassador Restaurant in a building located in the City of Roseville which was owned by Gino’s, Inc. On February 9, 1975, a fire occurred which resulted in extensive damage. An arson investigation was initiated by the Roseville police and fire departments. Vincent and Roger Antkiewicz were advised to remain off the premises and not to remove any items during the investigation. On April 15, 1976, 14 months after the arson investigation had commenced, Vincent and Roger Antkiewicz were charged with the burning of insured property with intent to defraud. At their criminal trial a directed verdict in favor of the present plaintiffs was entered. Subsequently, Vincent and Roger Antkiewicz brought a civil action against Motorists Mutual Insurance Company, Gino’s, Inc., the City of Roseville and public officers Donald Salatka, Ralph Junga and Raymond Jensenius alleging a civil conspiracy among all defendants to deprive plaintiffs of rights and property resulting in humiliation, anxiety and a loss of reputation and good will and alleging liability of Roseville and its agents arising out of the conduct of the arson investigation and decision to bring charges. The City of Roseville and the three named municipal agents filed a motion for summary judgment on the grounds of governmental immunity. Macomb Circuit Court, Hunter D. Stair, J., granted the motion. Plaintiffs appeal. Held:

    1. A police and fire department investigation of arson, having as an aim criminal liability and subsequent prosecution, is a governmental function for purposes of the governmental immunity statute. However, liability depends upon whether the specific acts complained of were in the exercise of that function. Plaintiffs allege the intentional tort of trespass and the complaint reveals allegations that the investigation was kept open an inordinate length of time and that it was unduly prolonged. These assertions are sufficient to conclude that an unauthorized or wrongful intrusion constituting trespass may have occurred. Intentional torts committed by public officers are not activities in the exercise or discharge of a governmental function. Summary judgment in favor of the City of Roseville was improperly granted.

      References for Points in Headnotes

       73 Am Jur 2d, Summary Judgment § 26 et seq.

       57 Am Jur 2d, Municipal, School, and State Tort Liability § 31.
    Municipal immunity from liability for torts. 60 ALR2d 1198.

       75 Am Jur 2d, Trespass § 17.
    1 Am Jur 2d, Abuse of Process § 16.

       57 Am Jur 2d, Municipal, School, and State Tort Liability § 79.

       57 Am Jur 2d, Municipal, School, and State Tort Liability § 45 et seq.

      2. Discretionary acts of public officers are those of a legislative, executive or judicial character. Ministerial acts are those where the public officers act primarily in response to orders and have little decision-making power during the course of performance. Generally, discretionary acts are protected under governmental immunity, ministerial acts are not. The actions of members of the police and fire departments in conducting an arson investigation resembles a ministerial act which is not covered by governmental immunity. Therefore, there is a possible factual development that would justify a right to recovery and plaintiffs’ claim is not clearly unenforceable as a matter of law. Summary judgment in favor of defendants Salatka, Junga and Jensenius was improper.
    Reversed and remanded.
    1. Judgment — Summary Judgment — Motions — Failure to State a Claim — Pleadings — Allegations and Conclusions — Application op Law — Court Rules.
    The Court of Appeals, on review of a motion for summary judgment on the ground that- the opposing party has failed to state a claim upon which relief can be granted, accepts as true the nonmoving party’s factual allegations as well as any conclusions which can reasonably be drawn therefrom; thereafter, the Court is required to determine whether the nonmoving party’s claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery (GCR 1963, 117.2[1]).
    2. Torts — Governmental Functions — Governmental Immunity — Statutes.
    The dispositive test in determining ■ whether an activity is a governmental function for purposes of the governmental immunity statute is whether the activity is one that can be effectively accomplished only by the government (MCL 691.1407; MSA 3.996[107]).
    3. Trespass — Definitions — Unauthorized Presence — Authorized Presence — Invalid Authorization.
    Any unauthorized intrusion or invasion of the private premises or lands of another could result in a trespass; an initially authorized presence on one’s premises may become a trespass if, for some reason, the authorization becomes invalid.
    4. Trespass — Public Officers — Legal Authorization — Exceeding Authority — Liability.
    Generally, a public officer who is on the premises of another pursuant to legal authorization is not liable for trespass; however, such officer becomes liable where he acts in excess of his authority.
    5. Torts — Public Officers — Intentional Torts — Governmental Functions — Governmental Immunity.
    Intentional torts committed by public officers may cause a municipal corporation to lose its defense of governmental immunity because such activities are not within the exercise or discharge of a governmental function.
    6. Torts — Public Officers — Scope of Employment — Discretionary and Ministerial Acts — Governmental Liability — Liability of Officer.
    The liability of a public officer for tortious acts committed in the scope of his employment is determined by deciding whether the acts of the officer are discretionary or ministerial; discretionary acts are normally protected under governmental immunity, ministerial acts are not; the difference between discretionary and ministerial acts is one of degree; discretionary acts are those of a legislative, executive or judicial character, and ministerial acts are those where the public officer acts primarily in response to orders and has little decision-making power . during the course of performance.

      Paul R. Jackman, for plaintiffs.

      Stewart, O’Reilly, Cornell) Lascoe & Rancilio, P.C., for defendants.
    Before: D. C. Riley, P.J., and J. H. Gillis and Mackenzie, JJ.
   Mackenzie, J.

The plaintiffs, Vincent Antkiewicz and his brother, Roger Antkiewicz, appeal from a summary judgment granted on November 9, 1977, by the Macomb County Circuit Court in favor of the defendants, City of Roseville, Detective Donald Salatka of the Roseville Police Department, and Sergeants Ralph Junga and Raymond Jensenius of the Roseville Fire Department.

The plaintiffs operated the Ambassador Restaurant in a building located in the City of Roseville which was owned by defendant Gino’s, Inc. After several months of operation of the restaurant, a fire occurred on February 9, 1975, resulting in extensive damage.

An investigation of possible arson was initiated by the police department and fire department of Roseville. The plaintiffs were advised to remain off the premises and not to remove any items during the investigation.

On April 15, 1976, 14 months after the arson investigation had commenced, the plaintiffs were charged with the burning of insured property with intent to defraud, MCL 750.75; MSA 28.270. On the sixth day of that criminal trial, a directed verdict was entered in favor of the plaintiffs.

The plaintiffs filed a four-count civil complaint in this case on June 23, 1977, the third count alleging liability of the City of Roseville and its agents, Salatka, Junga, and Jensenius, arising out of the conduct of the arson investigation and the decision to bring charges. The fourth count of the complaint alleged a civil conspiracy among all of the defendants to deprive the plaintiffs of rights and property, resulting in humiliation and anxiety, and a loss of reputation and good will.

The City of Roseville and the three named agents filed a motion for summary judgment or, alternatively, accelerated judgment on the grounds of governmental immunity. The motion was granted. The plaintiffs filed a motion to set aside the order granting summary judgment, which was denied on January 3, 1978.

I

Our first determination is whether or not the lower court erred in granting summary judgment. When reviewing the granting of a motion for summary judgment under GCR 1963, 117.2(1), we regard as true the factual allegations of the plaintiffs as well as any conclusions reasonably drawn therefrom. Armstrong v Ross Twp, 82 Mich App 77, 81-82; 266 NW2d 674 (1978). We then determine "whether the plaintiff[s’] claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery”. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426, 431; 202 NW2d 577, 580 (1972). Tort liability of a governmental agency is dealt with in MCL 691.1407; MSA 3.996(107), which provides:

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”

None of the exceptions set forth in the act is applicable to this case. See MCL 691.1402, 691.1405, 691.1406; MSA 3.996(102), 3.996(105), 3.996(106).

Thus, the essential question is whether the investigation and subsequent prosecution for arson is a "governmental function” for purposes of the governmental immunity statute. The Michigan Supreme Court recently dealt with the construction of the term "governmental function” in Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978). In Parker, Justices Fitzgerald, Kavanagh, and Levin stated that they would limit the term to activities that are "of essence to governing”. They were unable to find that the operation of a hospital was a governmental function, for it is not "an activity of a peculiar nature such that the activity can only be done by the government”. Id., 194.

Justice Moody, in a separate opinion, declined to embrace such a limited construction of "governmental function”. Instead, he reached the following conclusion:

"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this parameter, although performed by a government agency, are not governmental functions and therefore not immune. (Emphasis supplied.) 404 Mich at 200.

Justice Moody’s construction, employing the qualifier "effectively”, encompasses the "can only be done by the government” construction set forth by Justices Fitzgerald, Levin, and Kavanagh, and we, therefore, regard it as the dispositive test. Thus, our inquiry when determining whether an activity is a governmental function is whether the activity is one that can be effectively accomplished only by the government.

Turning to the facts of the instant case, we have little difficulty in concluding that a police and fire department investigation of arson, having as an aim possible criminal prosecution, and the subsequent prosecution are governmental functions.

The determination of whether the underlying activity is a governmental function is only the first step in deciding the immunity question. We must next determine whether the specific acts complained of were in the exercise or discharge of that function. See Cronin v Hazel Park, 88 Mich App 488; 276 NW2d 922 (1979), Duncan v Detroit, 78 Mich App 632; 261 NW2d 26 (1977).

A recent Michigan Supreme Court decision, Lockaby v Wayne County, 406 Mich 65; 276 NW2d 1 (1979), appears to set forth a majority Court position that intentional torts committed by public officers are not activities "in the exercise or discharge of a governmental function”. In Lockaby, the plaintiff brought an action for injuries allegedly inflicted by agents of the Wayne County Sheriff’s Department while the plaintiff was in the custody of that department. In separate opinions, a majority of the justices reached a consensus that the intentional nature of the injuries inflicted rendered permissible a cause of action against Wayne County.

In the instant case, the counts in the plaintiffs’ complaint allege the commission of the intentional tort of trespass. In Michigan, trespass has been defined to be any unauthorized intrusion or invasion of the private premises or lands of another. Giddings v Rogalewski, 192 Mich 319; 158 NW 951 (1916), Douglas v Bergland, 216 Mich 380; 185 NW 819 (1921). An initially authorized presence on one’s premises may become a trespass if, for some reason, the authorization becomes inválid. 87 CJS, Trespass, § 14. Normally, a public officer who is on the premises of another pursuant to legal authorization is not liable for trespass. Such officer becomes liable, however, where he acts in excess of his authority. See Clark v Wiles, 54 Mich 323; 20 NW 63 (1884); 87 CJS, Trespass, § 54. An examination of the plaintiffs’ complaint reveals the allegations that "the investigation was kept open an inordinate length of time” and that it was "unduly prolonged”. Based on these assertions, we conclude that an unauthorized or wrongful intrusion, constituting a trespass, was sufficiently alleged. Since under the Michigan Supreme Court decision in Lockaby, an intentional tort is not an activity within the exercise or discharge of a governmental function, we conclude that summary judgment in favor of defendant City of Roseville was improperly granted.

II

Our next determination is whether or not the lower court erred in granting summary judgment in favor of defendants Donald Salatka, Ralph Junga, and Raymond Jensenius. Since these defendants were agents of the City of Roseville, the trial court considered them to be shielded by governmental immunity along with the city.

The liability of a public officer for tortious acts committed in the scope of his employment is determined by deciding whether the acts of the officer are "discretionary” or "ministerial”. Discretionary acts are normally protected under governmental immunity; ministerial acts are not. Prosser, Torts (4th ed), § 132, pp 989-990.

The difference between discretionary and ministerial acts is one of degree. Discretionary acts are those of a legislative, executive, or judicial character. Sherbutte v Marine City, 374 Mich 48, 54; 130 NW2d 920 (1964), Armstrong v Ross Twp, supra at 81. Such acts have been held to include disapproval of liquor bonds of private citizens, Amperse v Winslow, 75 Mich 234; 42 NW 823 (1889), and control over the operation of a particular law enforcement system, Walkowski v Macomb County Sheriff 64 Mich App 460; 236 NW2d 516 (1975).

Ministerial acts are those where the public officer has little decision-making power during the course of performance; the officer’s acts are primarily in response to orders. See Prosser, supra at 990. Prior Michigan decisions have deemed ministerial acts to include the issuance by a county drain commissioner of partial payments for a drain construction, People, for use of Lapeer County Bank v O’Connell, 214 Mich 410; 183 NW 195 (1921); seizure of property for delinquent taxes, Raynsford v Phelps, 43 Mich 342; 5 NW 403 (1880); an arrest by a police officer, Sherbutte v Marine City, supra; and the denial of a building permit by a building inspector, Armstrong v Ross Twp, supra. The actions of members of the police and fire departments in conducting an arson investigation resemble the aforementioned acts previously determined by Michigan courts to be ministerial. These actions, therefore, are not covered by the protective cloak of governmental immunity. Because the plaintiffs’ claim is not clearly unenforceable as a matter of law, we conclude that the trial judge erred in granting summary judgment in favor of defendants Salatka, Junga, and Jensenius.

Reversed and remanded as to defendants City of Roseville, Donald Salatka, Ralph Junga, and Raymond Jensenius. No costs, plaintiffs having prevailed only on the trespass claim.

       In a separate opinion, Justices Levin, Kavanagh, and Fitzgerald stated that according to the Court’s decision in McCann v Michigan, 398 Mich 65; 247 NW2d 521 (1976), intentional torts are not in the exercise or discharge of a governmental function and, thus, a cause of action was stated against the county. Justices Coleman and Ryan stated that the plaintiffs complaint made out a case potentially not within the exercise or discharge of a governmental function, as it alleged intentional acts on the part of the agents of the defendants. Justice Williams, in his opinion, stated that the relevant inquiry was whether the agents’ acts were ultra vires, and not merely whether the acts were intentional. Finally, Justice Moody stated that the plaintiff properly pled a cause of action for intentional injuries against the defendant Wayne County.

       The plaintiffs’ complaint insufficiently alleges the tort of malicious prosecution. The element of termination of the proceeding in favor of the accused was omitted. See Rowbotham v Detroit Automobile Inter-Insurance Exchange, 69 Mich App 142, 147; 244 NW2d 389 (1976).

       The Supreme Court has not reached a consensus on the proper method to employ for determining whether public employees are protected by governmental immunity. See Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979). In absence of recent guidance, we choose to employ the widely-utilized "discretionary” acts/”ministerial” acts distinction. See Armstrong v Ross Twp, 82 Mich App 77; 266 NW2d 674 (1978).


author: R. M. Maher, J.

text:
    IN THE MATTER OF THE PETITION OF THE STATE OF DELAWARE (PEOPLE v MARCY)
    Docket No. 78-1636.
    Submitted March 7, 1979, at Detroit.
    Decided July 23, 1979.
    Leave to appeal applied for.
    The State of Delaware instituted proceedings, under the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, seeking an order to compel Lynn P. Marcy, a licensed polygraph examiner, to appear as a witness before a grand jury in a criminal investigation in Delaware. Marcy opposed the petition filed by the State of Delaware, claiming that any information which he possessed regarding the case in question was privileged under either the statutory privilege regarding polygraph examiners or the attorney-client privilege. The Wayne Circuit Court, Richard D. Dunn, J., denied the petition on the basis of privilege. The prosecuting attorney, representing the petitioner, appeals by leave granted. Held:

    The testimony sought by the Delaware grand jury concerned information which had been obtained by Marcy while conducting a polygraph examination at the request of an attorney in the course of providing legal advice and assistance to a client. The information was privileged, both under the statute regarding polygraph examiners and under the attorney-client privilege. Because the information is privileged, Marcy would not be able to testify in Delaware, and the petition was properly denied.
    Affirmed.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 345, 348.
    73 Am Jur 2d, Statutes §§ 283, 284.
    81 Am Jur 2d, Witnesses § 8.
    Uniform Act to secure attendance of witnesses from without a state in criminal proceedings. 44 ALR2d 732.

       29 Am Jur 2d, Evidence § 831 (supp).
    81 Am Jur 2d, Witnesses §§ 141,144.

       21 Am Jur 2d, Criminal Law §§ 345, 348.
    81 ^.m Jur 2d, Witnesses §§ 8, 141, 144.
    Uniform Act to secure attendance of witnesses from without a state in criminal proceedings. 44 ALR2d 732.

      1. Witnesses — Criminal Law — Statutes — Uniform Act to Secure Witnesses.
    The Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, because it authorizes a drastic infringement upon the liberty of a witness, must be strictly construed to prevent injustice (MCL 767.91 et seq.; MSA 28.1023[191] et seq.).

    2. Witnesses — Criminal Law — Polygraph Examiners — Privilege — Statutes.
    Information obtained by a polygraph examiner during an examination conducted at the request of an attorney in the course of providing legal advice and assistance to a client is subject to a statutory privilege which applies to polygraph examiners, and is protected by the common-law attorney-client privilege as well (MCL 338.1728; MSA 18.186[28]).
    3. Witnesses — Criminal Law — Statutes — Uniform Act to Secure Witnesses — Privilege.
    A circuit court properly denied a petition of a foreign state seeking to secure the attendance of a witness before a grand jury in that state where the testimony sought from the witness is privileged and not admissible into evidence; a witness whose testimony is privileged is not a material and necessary witness within the meaning of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings (MCL 767.91 et seq.; MSA 28.1023[191] et seq.).

      William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for petitioner.

      Lippitt, Harrison, Perlove, Friedman & Zack (by Robert S. Harrison and Bernard Feldman), for Lynn P. Marcy.
    Before: N. J. Kaufman, P.J., and T. M. Burns and R. M. Maher, JJ.
   R. M. Maher, J.

The Wayne County Prosequtor appeals by leave of this Court from the denial by Wayne County Circuit Judge Richard D. Dunn of an order to compel the attendance of Lynn P. Marcy as a witness at a grand jury investigation in the State of Delaware. Marcy cross appeals.

Delaware sought the assistance of the courts of Michigan under the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, enacted in Michigan as MCL 767.91-767.95; MSA 28.1023(191)-28.1023(195), and in Delaware as title 11, Del Code §§ 3521-3526. The part of the act which is material to this case is MCL 767.92; MSA 28.1023(192), which provides in part:

"(1) A judge of a court of record in a state which by law has provided, for commanding persons within that state to attend and testify in this state may certify under seal of his court that for purposes of a criminal prosecution in his court or a grand jury investigation in his state, a person in this state is required as a material witness for a specified number of days.
"(2) Upon presentation of a certificate issued pursuant to subsection (1) to a judge of a court of record in a county where such witness is found, the judge shall fix a time and place for a hearing and make an order directing the witness to appear at the hearing. At such hearing the certificate shall be prima facie evidence of all the facts stated therein.
"(3) The judge shall issue a summons with a copy of the certificate attached directing the witness to attend and testify in the court where the criminal prosecution is pending or a grand jury is investigating if he determines at the hearing that:
"(a) The witness is material and necessary to the prosecution or investigation.
"(b) The attendance and testifying in the prosecution or investigation will not cause undue hardship to the witness.
"(c) The laws of the state where the prosecution or investigation is being held and the laws of any other state through which the witness may be required to pass by ordinary course of travel protect the witness from arrest and service of civil or criminal process.”

Pursuant to the statutory provision quoted above, the Superior Court for Kent County, Delaware, issued a certificate stating that Marcy is a material witness in the grand jury investigation into the death of Sarita Ann Hughes. The certificate, along with affidavits attached thereto, was duly presented to Judge Dunn of Wayne County Circuit Court. Marcy filed an answer in opposition with supporting affidavits, and a hearing was held before Judge Dunn on February 1, 1978. No testimony was taken at the hearing, but oral argument was heard on behalf of both petitioner and respondent. Following argument, the court denied the petition, and an order was entered to that effect. This appeal by the prosecutor, on behalf of the petitioner, ensued.

The events which precipitated the conflict out of which this appeal arises began with the murder of Sarita Ann Hughes in Milford, Delaware, on August 31, 1976. Mrs. Hughes’ husband, Robert, was a suspect, but was apparently not prosecuted because of lack of evidence. Thereafter, on October 1, 1976, respondent Lynn P. Marcy conducted a polygraph examination of Robert D. Hughes at the request of Hughes’ Delaware attorney, Jack R. Dunlap. The examination was conducted at Marcy’s Dearborn, Michigan, offices. Marcy told Hughes prior to the examination that any communications made therein were confidential and would be disclosed only to Hughes’ attorney.

On July 20, 1977, Marcy was a guest lecturer at a polygraph training course in Chicago attended by John P. Bisbee, a Delaware State Police Officer. According to the affidavit of Officer Bisbee, Marcy distributed polygraph charts and background information sheets relating to homicide cases in which Marcy had allegedly obtained confessions. One of the charts was for Robert D. Hughes, whose name and date of birth, along with the name and date of birth of his wife, were on the background sheet. Officer Bisbee alleged that he detected "falsehoods on the part of Robert D. Hughes concerning * * * his involvement in the death of his wife”. Bisbee asked Marcy about the chart, and was allegedly told, "This is the guy who killed his wife”. Marcy, in his affidavits, denied having said that he obtained a confession from Hughes or that Hughes killed his wife.

Upon returning to Delaware, Bisbee informed his superiors of the events in Chicago. Eventually, the Delaware Attorney General’s office contacted Marcy, asking him to reveal any information in his possession regarding the murder of Sarita Hughes. When Marcy refused on grounds of privilege, Delaware instituted proceedings under the uniform act.

In his answer in opposition to the petition filed by Delaware, Marcy alleged, inter alia, that any information in his possession regarding the Hughes case was privileged either under the statutory Michigan polygrapher privilege or the attorney-client privilege, or both. Petitioner, on the other hand, argued that the polygrapher privilege did not apply to Delaware proceedings and that applicability of the attorney-client privilege was a question for a Delaware court, not for the Michigan court. In ruling on the petition following argument of counsel, the court below said:

"I am satisfied that any evidence that could be given by Mr. Marcy to a court in Delaware would be inadmissible. I am satisfied that he’s entitled to the privilege accorded to him by the Michigan Statute. And I think that if I ordered him to go to Delaware, it would be a useless act despite the request of the attorney general from the state of Delaware, because anything he could testify to there certainly is protected by the privilege, he’s not going to relent and waive privilege, I’m sure of that. He’s already indicated to that. And I think that it would just be an idle waste of time on both the part of this Court and the part of the Delaware court. I understand the problems of the grand jury in Delaware and I understand the problem of the attorney general, but it doesn’t áppear to me that Mr. Marcy could give them any material testimony because of the privilege.”

It is clear that the lower court based its decision in part on the privilege established by MCL 338.1728; MSA 18.186(28), which provides in part:

"Any communications, oral or written, furnished by a professional man or client to a licensed examiner, or any information secured in connection with an assignment for a client, shall be deemed privileged with the same authority and dignity as are other privileged communications recognized by the courts of this state.”

The court’s comment that anything Marcy could testify to in Delaware would be privileged leads us to believe that the court also found that the attorney-client privilege applied to the polygraph examination. We think that the court’s decision was correct under either analysis, and affirm.

The prosecutor urges upon us the view that it is Delaware law, not Michigan law, which governs and that the determination whether the information in Marcy’s possession is privileged is not for Michigan courts to make. He asks us to require Mr. Marcy to travel to Delaware and to assert his claim of privilege before the courts of that state. We decline to do so for several reasons.

Preliminarily, we note that other courts have held that because the uniform act authorizes a drastic infringement upon the liberty of the witness, it must be strictly construed to prevent injustice. See People v McCartney, 38 NY2d 618; 381 NYS2d 855; 345 NE2d 326 (1976), In re Grothe, 59 Ill App 2d 1; 208 NE2d 581 (1965).

Beginning our analysis of the case before us, we note that the polygraph examination, during the course of which Marcy obtained the allegedly privileged information, was conducted in Michigan by a Michigan-licensed polygrapher at the request of an attorney in the course of providing legal advice and assistance to a client. We think that this is a situation which clearly falls within the letter and spirit of the polygrapher privilege statute. That statute represents a declaration by the Legislature of the policy of the State of Michigan, a policy which the courts of this state have a duty to enforce. We are of the opinion that the aforementioned policy would be ill served by permitting the Attorney General of Delaware to use the powers of a Michigan court to force an unwilling witness to appear before a grand jury which will then use its powers to require the policy of the State of Michigan to be violated. Compare People v Carter, 34 Cal App 3d 748; 110 Cal Rptr 324 (1973), cert den 419 US 846; 95 S Ct 81; 42 L Ed 2d 75 (1974), where the witness was voluntarily in California to testify to a communication made in Illinois.

In addition, we are of the opinion that the communications between Mr. Hughes and Mr. Marcy are protected by the attorney-client privilege, which is part of the common law of both Michigan and Delaware, see Lindsay v Lipson, 367 Mich 1; 116 NW2d 60 (1962), People v Hilliker, 29 Mich App 543; 185 NW2d 831 (1971), Texaco, Inc v Phoenix Steel Corp, 264 A2d 523 (Del Ch, 1970). It is well-established that a physician or psychiatrist who examines a party (including a criminal defendant) at the request of the party’s attorney, to assist the attorney in preparing for trial, comes within the protection of the attorney-client privilege, United States v Alvarez, 519 F2d 1036 (CA 3, 1975), People v Superior Court for the County of Los Angeles, 51 Cal App 3d 459; 124 Cal Rptr 158 (1975), People v Goldbach, 27 Cal App 3d 563; 103 Cal Rptr 800 (1972), People v Hilliker, supra. Although decisions vary from one jurisdiction to another, the attorney-client privilege has been extended to cover, inter alia, an accountant, investigator, engineer or appraiser employed by either the client or the attorney to assist the attorney, see e.g. State v Tapia, 113 NJ Super 322; 273 A2d 769 (1971), Anno: Persons other than client or attorney affected by, or included within, attorney-client privilege, 96 ALR2d 125. In Delaware, an appraiser who had assisted the state’s attorney as an expert was prevented from testifying on grounds that his testimony was barred by the state’s assertion of the attorney-client privilege, State v 62.96247 Acres of Land, 57 Del 40; 193 A2d 799 (1963). The Superior Court in that case noted that the assistance of experts is often required in preparing a case for trial, and the participation of an expert in trial preparation often makes him, in effect, "assistant counsel”, 57 Del at 62. The stipulation of facts in the case before us clearly reveals that Hughes’ attorney sought the expert assistance of Marcy in the course of his representation of his client. We agree with the trial court that the attorney-client privilege extends to the polygraph examination conducted by Marcy at the request of Hughes’ attorney. We likewise agree with the court below that any witness whose testimony is barred by a privilege is not a material and necessary witness within the meaning of the uniform act.

Accordingly, we affirm the order of the court below denying the petition of the State of Delaware. Because of our disposition of this issue, we do not reach the question raised in cross-appellant’s brief. No costs, a public question being involved.

       The facts set forth herein are taken from the affidavits filed in the court below. For purposes of this appeal, uncontroverted allegations in the affidavits are taken as true.

       The time, place and circumstances of the polygraph examination were stipulated to by the parties, pursuant to the order of this Court granting leave to appeal.

       We reject out of hand the argument that the Michigan court may not look behind the certificate of the Delaware court and may not make an independent determination of materiality based on evidence presented to the Michigan court. See In re Adams, 64 Ill 2d 269; 356 NE2d 55 (1976), Wright v State, 500 P2d 582 (Okl Crim App, 1972), Appel v State of New York, 243 MD 218; 220 A2d 301 (1966), cf. People v McCartney, 38 NY2d 618; 381 NYS2d 855; 345 NE2d 326 (1976).

       We assume that Marcy would be subject to a contempt charge if he refused to testify when ordered to do so by a Delaware court. We note that if he does testify, he could conceivably lose his polygrapher’s license as a result, although the compulsion of his testimony may excuse the disclosure. MCL 338.1728; MSA 18.186(28). To place Marcy in the uneviable position of choosing whether to lose his liberty or to risk losing his livelihood would most certainly work a hardship upon him, a factor which militates against granting the petition. See MCL 767.92(3)(b); MSA 28.1023(192)(3)(b), quoted in text, supra.

       Courts of this state are authorized to take judicial notice of the law of foreign jurisdictions, MCL 600.2114a; MSA 27A.2114(1).


author: N. J. Kaufman, J. J. H. Gillis, J.

text:
    PAGE v ASPLUNDH TREE EXPERT CO
    Docket No. 78-1940.
    Submitted April 16, 1979, at Detroit.
    Decided July 23, 1979.
    Plaintiff, Jack L. Page, sustained an injury while working for defendant Asplundh Tree Expert Co. Asplundh’s workmen’s compensation carrier voluntarily paid plaintiff workmen’s compensation benefits for the statutory maximum of 500 weeks. After that, plaintiffs wife filed a petition for hearing with the Bureau of Workmen’s Compensation on plaintiffs behalf alleging irreparable damage to a vertebrae, weakness of arm, back, neck and legs, and spinal bloodclot, nerve root compression, drug addiction and feeblemindedness or imbecility. A hearing was held and benefits were denied for failure to show total and permanent disability. Plaintiffs wife appealed this decision for him and the appeal was dismissed for failure to submit a transcript of the hearing. Plaintiff, through legal counsel, then filed a new petition for hearing with the bureau, alleging loss of "industrial use of both legs”, "traumatic shock with onset of psychogenic dysfunction” and "total permanent disability”. The administrative law judge granted a motion to dismiss made by Asplundh’s insurer and defendant Second Injury Fund. The Workmen’s Compensation Appeal Board affirmed, finding: that the allegation of loss of industrial use of both legs was determined in the first hearing and a finding of worsened condition would not avoid the statutory time limitation; and, that “traumatic shock with onset of psychogenic dysfunction” did not allege entitlement to total and permanent disability benefits on the statutory basis of incurable insanity or imbecility. Plaintiff appeals by leave granted. Held:

    1. Plaintiffs psychogenic dysfunction claim, while not in the words of the statute, should have been enough to alert those involved that plaintiff was claiming total and permanent disability due to either incurable insanity or imbecility.

      References for Points in Headnotes

       82 Am Jur 2d, Workmen’s Compensation §§ 301, 302.

       82 Am Jur 2d, Workmen’s Compensation § 584.
    Matters concluded, in action at law to recover for the same injury, by decision or finding made in workmen’s compensation proceeding. 84 ALR2d 1036.

      2. In worker’s compensation cases, the doctrine of res judicata applies only to issues of fact or law actually at issue and decided in prior proceedings. Dismissal by the appeal board because of res judicata was premature when there was no transcript to determine what factual issues were actually decided in the prior proceeding.
    Reversed in part and remanded with instructions.
    J. H. Gillis, J., dissented. He would hold that: plaintiffs first petition alleged leg, arm and back problems and imbecility and that his second petition alleged leg problems and imbecility; after hearing, the referee dismissed plaintiffs first petition for failure to sustain his burden of proof; the dismissal was a final adjudication of plaintiffs physical condition at that time; and, plaintiff should be precluded from subsequently raising those issues absent a change of condition. He agreed that the leg claim is barred by the statute of limitations even in the event of a change of condition, but would hold that the case be remanded to afford the plaintiff an opportunity to show a change of condition with respect to the psychiatric claim.
    Opinion op the Court
    1. Workmen’s Compensation — Total and Permanent Disability — Incurable Insanity or Imbecility.
    An allegation in a worker’s disability compensation petition for hearing that the claimant suffered from "traumatic shock with onset of psychogenic dysfunction; total permanent disability” is sufficient to alert those involved that the claimant is claiming total and permanent disability due to either incurable insanity or imbecility.
    2. Workmen’s Compensation — Res Judicata.
    The doctrine of res judicata applies to worker’s disability compensation cases where the precise issue of fact or law has been at issue and decided in prior proceedings; it is impossible to determine whether res judicata applies to a worker’s disability compensation case without a record and transcript of the prior proceedings to determine what factual issues were actually litigated and determined and what legal issues were, therefore, necessarily resolved.
    Dissent by J. H. Gillis, J.
    3. Workmen’s Compensation — Res Judicata.

      Bes judicata applies to a petition for worker’s disability compen

      sation beneñts alleging total and permanent disability, absent a showing of change of condition, where a prior petition alleged the same total and permanent disability and where the hearing referee dismissed the petition for failure to meet the burden of proof of total and permanent disability.

      Rosenbaum, Bloom, Kaufman, Appel & Moses (by Lawrence A. Meyerson), for plaintiff.

      Lacey & Jones (by John L. Salter), for defendant Asplundh Tree Expert Company and Aetna Casualty and Surety Company.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Morris Zack, Assistant Attorney General, for defendant Second Injury Fund.
    Before: Danhof, C.J., and J. H. Gillis and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

Plaintiff appeals from a Workmen’s Compensation Appeal Board opinion and order of April 20, 1978, which affirmed an administrative law judge’s dismissal of plaintiff’s second petition for a determination of total and permanent disability on the basis of res judicata. We granted leave to appeal on August 25, 1978.

Plaintiff sustained a hip injury on March 17, 1959, while he was working for Asplundh Tree Expert Co. Aetna Casualty and Surety, Asplundh’s worker’s compensation insurance carrier, voluntarily paid compensation for the statutory maximum of 500 weeks. The 500-week period expired on January 9, 1969.

In February of 1970, plaintiff’s wife filed a petition for hearing on plaintiff’s behalf. The petition alleged the following disabilities:

"4th Vertibrae damaged beyond repair. Arms Back neck legs shows marked weakness. Bloodclot on spinal cord; nerve root compression; imbecility or feeble minded; Drug addiction.”

A hearing on this petition was held on August 4 and 5, 1971. Plaintiff acted without legal counsel and benefits were denied because:

"* * * plaintiff has failed to sustain the burden of proof to show that he is totally and permanently disabled within the meaning of that term as used in the Workmen’s Compensation Act.”

On January 3, 1972, plaintiff, again acting through his wife and without the benefit of legal counsel, appealed this hearing referee’s decision to the Workmen’s Compensation Appeal Board. The board dismissed plaintiff’s appeal on March 30, 1972, for failure to provide a transcript of the proceedings before the hearing referee.

On January 28, 1976, plaintiff, through legal counsel, filed a new petition for hearing. This petition alleged disability in part as follows:

"* * * loss of industrial use of both legs; traumatic shock with onset of psychogenic dysfunction; total permanent disability”.

This matter was set for a hearing before Administrative Law Judge Frank Condino on February 14, 1977. At this hearing, defendant Aetna Casualty and Surety moved to dismiss plaintiff’s claim on the basis of res judicata. The Second Injury Fund joined in this motion. By a decision mailed February 17, 1977, Judge Condino granted defendant’s motion to dismiss, indicating in pertinent part:

"I am bound to administer the law, in particular, the Workmen’s Compensation Act. So, I will grant Defendant’s Motion to Dismiss, based on the matter having been fully tried and the matter being Res Judicata [sic]”

Plaintiff appealed this dismissal to the Workmen’s Compensation Appeal Board on February 17, 1977. The board, by a majority vote of 3 to 2, affirmed the dismissal on April 20, 1978, stating in part:

"Plaintiff appeals the dismissal of his petition seeking total and permanent disability benefits. The subject matter of his petition having already been litigated to a conclusion and final order, the decision (dismissal) is affirmed.”

The appeal board majority rejected plaintiff’s loss of industrial use of both legs claim after determining that the 1971 hearing decided that issue and a subsequent finding of worsened condition would not avoid the time limit established by MCL 418.361(2)(g); MSA 17.237(361)(2)(g).

The majority rejected plaintiff’s psychogenic dysfunction claim after determining that the language used did not allege entitlement to total and permanent disability on the basis of incurable insanity or imbecility under MCL 418.361(2)(f); MSA 17.237(3<31)(2)(f).

We are faced with two issues on appeal. First, whether the appeal board erred in affirming the dismissal of plaintiff’s claim for total and permanent disability based on loss of industrial use of both legs. Second, whether the appeal board erred in affirming the dismissal of plaintiff’s psychogenic dysfunction claim.

We note at the outset that plaintiff’s psychogenic dysfunction claim, while not couched in the words of the statute, should have been enough to alert all those involved that the plaintiff was claiming total and permanent disability due to the psychological condition of either incurable insanity or imbecility. Consequently, the appeal board’s reason for upholding the dismissal of this claim must be rejected.

At this point, however, we become stymied. In general, res judicata applies not only to issues which were determined on the merits but also to matters which the parties had the opportunity to present for adjudication on the merits. Stokes v Lakey Foundry Corp, 20 Mich App 217, 219; 173 NW2d 832 (1969), and cases cited therein. But in worker’s compensation cases, res judicata applies only where the precise issue of fact or law under consideration in one case was at issue and decided in prior proceedings. White v Michigan Consolidated Gas Co, 352 Mich 201, 211; 89 NW2d 439 (1958), Stokes, supra, and see Hlady v Wolverine Bolt Co, 393 Mich 368, 376; 224 NW2d 856 (1975).

Further, when the appeal board reviews the decision of an administrative law judge, that review is de novo. Fawley v Doehler-Jarvis Division of National Lead Co, 342 Mich 100; 68 NW2d 768 (1955). Accordingly, a determination that a given case is barred by res judicata must also be reviewed de novo. The board must determine what the first hearing actually resolved and then compare those determinations with the plaintiffs claims in the subsequent case.

The problem here lies in determining just what was at issue and decided in the 1971 hearing. The 1970 petition for benefits was inartfully drafted and alleged a mishmash of disabilities. The hearing referee denied benefits for the general reason that plaintiff failed to show that he was "totally and permanently disabled within the meaning of that term as used in the Workmen’s Compensation Act”. And while plaintiff appealed the referee’s findings, the appeal was dismissed because the plaintiff failed to provide the appeal board with a transcript of the proceedings before the hearing referee. The appeal board apparently has still not seen the transcript of the 1971 hearing. We echo the words of appeal board member Marshall, who dissented from the majority opinion of the appeal board in this case:

"In a fundamental sense we just do not really know (at least without the record and transcript of the prior proceedings) exactly what has been adjudicated and determined; that is, precisely what crucial factual issues were actually litigated and determined, and, therefore what legal issues were necessarily resolved.” (Emphasis in original.)

Under these circumstances, the application of res judicata principles to the present case was premature at best. See generally, Morgan v Freedman Artcraft, 401 Mich 54; 257 NW2d 85 (1977), and Sanders v General Motors Corp, 80 Mich App 190; 263 NW2d 329 (1977), lv gtd 402 Mich 950i (1978). Accordingly, the matter must be remanded to the Workmen’s Compensation Appeal Board for a determination of what was at issue and decided in the 1971 hearing. After making that determination the board should reexamine this case in light of the above mentioned cases. If there is not enough information available to determine what was at issue and actually decided in the 1971 hearing, res judicata does not bar plaintiffs claims and he is entitled to a hearing.

Reversed in part and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. No costs, neither party having prevailed in full.

Danhof, C.J., concurred.

J. H. Gillis, J.

(dissenting). The facts are accurately set forth in Judge Kaufman’s opinion. At the time of plaintiffs injury, compensation benefits for a general disability were payable for only 500 weeks. In order to qualify for additional benefits, it was incumbent upon plaintiff to show that he was totally and permanently disabled within the meaning of § 361 of the Worker’s Disability Compensation Act.

"Total and permanent” is a term of art in Michigan and is defined to mean any of the following conditions:

"(a) Total and permament loss of sight of both eyes.
"(b) Loss of both legs or both feet at or above the ankle.
"(c) Loss of both arms or both hands at or above the wrist.
"(d) Loss of any 2 of the members or faculties enumerated in (a), (b) or (c).
"(e) Permanent and complete paralysis of both legs or both arms or of 1 leg and 1 arm.
"(f) Incurable insanity or imbecility.
"(g) Permanent and total loss of industrial use of both legs or both hands or both arms or 1 leg and 1 arm; for the purpose of this subdivision such permanency shall be determined not less than 30 days before the expiration of 500 weeks from the date of injury.” MCL 418.361; MSA 17.237(361).

In the instant case plaintiffs petition of February, 1970, alleged back, arm and leg problems as well as imbecility. Thus, it would appear that he may have been able to qualify for total and permanent disability benefits under subsections (e), (f) or (g), supra. Even from the incomplete record before us, we can determine that the evidence submitted to the hearing referee consisted of plaintiffs testimony and medical evidence relating to plaintiffs psychiatric problems as well as his back, leg and arm complaints. Benefits were denied because plaintiff failed to sustain the burden of proving he was totally and permanently disabled.

Plaintiff’s second petition alleged industrial loss of use of the legs and psychiatric problems. Thus, it is evident that plaintiff was, for the second time, attempting to obtain benefits under subsections (f) and (g). Under these circumstances it was not error to apply the doctrine of res judicata to this case. The same issues had in fact been previously raised, litigated and decided. The hearing referee’s decision constituted a final adjudication of plaintiffs physical condition as of that time. Hlady v Wolverine Bolt Co, 393 Mich 368; 224 NW2d 856 (1975).

Moreover, even if plaintiff raised only one of the statutory bases for a finding of total and permanent disability, i.e., incurable insanity or imbecility, and failed to raise any of the others, I believe he should be precluded from subsequently raising such issues absent a showing of change of condition. In Hlady, supra, 376, the Court indicated that a decision in a worker’s compensation case is "conclusive of all matters adjudicable at that time”. Here, it can certainly be said that the question of whether plaintiff was totally and permanently disabled, on whatever basis, was adjudicable at the time of the November, 1971, decision. Since the burden of proof is on the claimant to prove his disability, Benefield v W R Grace Co, 34 Mich App 442; 191 NW2d 567 (1971), his failure to meet this burden is necessarily a determination that as of the time of the decision he was not totally and permanently disabled.

To hold otherwise would allow a party to try his case in a piecemeal fashion, first attempting to qualify under one subsection of § 361 and, if unsuccessful, trying again under each remaining subsection until every possibility is exhausted. Such a result would be totally unnecessary since there is no reason why a party could not present proofs on any or all of the statutory criteria at a single hearing.

This writer is not unaware that there are cases which hold that in worker’s compensation cases unless the precise issue was litigated and decided the matter is not res judicata. See, e.g., Stokes v Lakey Foundry Corp, 20 Mich App 217; 173 NW2d 832 (1969), White v Michigan Consolidated Gas Co, 352 Mich 201; 89 NW2d 439 (1958). However, Hlady, supra, indicates that that rule does not have universal application even in the area of workers’ compensation. Moreover, there is no compelling reason why the doctrine of res judicata should not bar a party who has applied for total and permanent disability benefits and failed to sustain his burden of proof from relitigating that issue.

Of course, this would not preclude the claimant from alleging a change in his condition such that he is currently totally and permanently disabled. I agree with Judge Kaufman’s opinion that plaintiffs 1976 petition was sufficient to alert those involved that plaintiff was alleging incurable insanity or imbecility. Therefore, I would remand the case to allow plaintiff to pursue this claim.

However, as noted by the majority of the appeal board, a change of condition with respect to the leg claim would not entitle plaintiff to benefits because of the time limits of § 361(g) and the fact that the 1971 decision precludes relitigation of the issue. ,

I would affirm the appeal board’s determination that res judicata applies to this case but remand to allow plaintiff to show a change in condition with respect to the psychiatric claim.


author: V. J. Brennan, P.J.

text:
    PEOPLE v RICE
    Docket No. 78-2879.
    Submitted March 14, 1979, at Detroit.
    Decided July 23, 1979.
    Theodore Rice, D.O., was charged with two counts of delivery of a controlled substance. Defendant moved to quash the information claiming that a physician dispensing controlled substances cannot be prosecuted for delivery under the Controlled Substances Act in effect in 1977. The Wayne Circuit Court, Victor Baum, J., granted defendant’s motion to dismiss. The prosecution appeals as of right. Held:

    A physician dispensing controlled substances can be prosecuted for unlawful delivery of a controlled substance where the act of dispensing such substances is not done in good faith in the course of professional practice or research. Whether the physician acted in good faith in the course of professional practice or research is a question of fact.
    Reversed.
    Drugs and Narcotics — Controlled Substances Act — Physicians and Surgeons — Dispensing — Delivery.
    Physicians dispensing controlled substances are not exempt from prosecution under the Controlled Substances Act unless the act of dispensing the controlled substance was done in good faith in the course of professional practice or research; whether a physician is acting in good faith in the course of professional practice or research is a question of fact (MCL 335.332[2]; MSA 18.1070[32][2]).
    References for Points in Headnote
    25 Am Jur 2d, Drugs and Narcotics § 23.
    Federal criminal liability of licensed physician for unlawfully prescribing or dispensing "controlled substance or drug in violation of Controlled Substances Act (21 USCS § 801 et seq.). 33 ALR Fed 220.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.
    Before: V. J. Brennan, P.J., and Bronson and D. F. Walsh, JJ.
   V. J. Brennan, P.J.

On October 12, 1977, defendant Theodore Rice, D.O., was charged with two counts of unlawfully dispensing and/or delivering a controlled substance in violation of MCL 335.341(l)(c); MSA 18.1070(41)(l)(c). Defendant moved to quash the information claiming that a physician dispensing controlled substances by prescription cannot be prosecuted under the above statute. The trial court noted this Court’s split of authority on this issue as set forth in People v Kerwin, 56 Mich App 483; 224 NW2d 113 (1974), and People v Alford, 73 Mich App 604; 251 NW2d 314 (1977). In reliance upon Kerwin, the trial court granted defendant’s motion to dismiss. The people appeal as of right.

The Supreme Court in People v Alford, 405 Mich 570, 589; 275 NW2d 484 (1979), resolved the conflict in the Court of Appeals as to whether a physician may be convicted of violation of the controlled substances act. The Court stated:

"We hold that physicians can dispense controlled substances only 'to the extent authorized by their registration and in conformity with the other provisions of this chapter.’ MCL 335.332(2); MSA 18.1070(32X2).
"A physician dispensing controlled substances not in the course of professional practice or research can be prosecuted for unlawful delivery of a controlled substance. Whether a physician or any other person listed in MCL 335.307(3)(a); MSA 18.1070(7)(3)(a) is acting in good faith in the course of professional practice or research is a question of fact.”

Under the authority of Alford, the lower court’s order quashing the information is vacated.

Reversed.


author: G. W. Crockett, Jr., J.

text:
    PEOPLE v STEVENS
    Docket No. 78-3231.
    Submitted May 7, 1979, at Lansing.
    Decided July 23, 1979.
    Defendant, Marcus Stevens, was charged with armed robbery and assault with intent to commit murder. A competency hearing was held and it was determined that defendant was incompetent to stand trial. At a later hearing defendant was found to be competent. At trial defendant’s counsel conceded the robbery and shooting offenses charged and argued insanity as a defense. In his opening remarks to the jury he alluded to the kinds of evidence that would be produced to establish defendant’s insanity, saying, "[t]he second type of evidence will show that Marcus Stevens was declared mentally incompetent to stand trial”. The prosecutor immediately objected and the trial court, on motion by the prosecution, declared a mistrial. Upon retrial, defendant moved to dismiss on double jeopardy grounds and the Washtenaw Circuit Court, Patrick J. Conlin, J., denied the motion. Defendant was convicted of the charges and appeals by leave granted. Held:

    Once a defendant has been placed in jeopardy, unless he consents to interruption of the trial, or a mistrial occurs because of manifest necessity, the state is precluded from bringing him to trial again. It is doubtful whether the damage of having the fact that a judicial officer had considered and decided the competency issue, which is often confused with the issue of sanity, could have been corrected by an instruction. Therefore a new trial was a "manifest necessity”.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 165, 166, 180, 195.
    What constitutes accused’s consent to court’s discharge of jury or to grant of state’s motion for mistrial which will constitute waiver of former jeopardy plea. 63 ALR2d 782.

       21 Am Jur 2d, Criminal Law §§ 180, 195.
    What constitutes accused’s consent to court’s discharge of jury or to grant of state’s motion for mistrial which will constitute waiver of former jeopardy plea. 63 ALR2d 782.
    Propriety of trial court’s declaration of mistrial or discharge of jury, without accused’s consent on ground of presecution’s disclosure of prejudicial matter, or making prejudicial remarks in presence of jury. 77 ALR3d 1143.

      Affirmed.
    1. Criminal Law — Double Jeopardy.
    Once a defendant has been placed in jeopardy, unless he consents to interruption of the trial or a mistrial occurs because of manifest necessity, the state is precluded from bringing him to trial again.
    2. Criminal Law — Sanity — Mistrial — Comment by Defense Counsel — Declaration of Mental Incompetence — Double Jeopardy.
    It was improper for a defense counsel, in a trial where insanity was the defense, to inform the jury that the defendant at a previous time had been declared mentally incompetent to stand trial; a trial judge did not err in declaring a mistrial because of "manifest necessity” after the jury had been so informed and a subsequent trial on the same charges does not violate the constitutional protection against double jeopardy.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Lynwood E. Noah, Senior Assistant Prosecuting Attorney, for the people.

      Joseph H. Wagner, P.C., for defendant on appeal.
    Before: D. C. Riley, P.J., and V. J. Brennan and G. W. Crockett, Jr., JJ.

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

   G. W. Crockett, Jr., J.

On October 28, 1976, the defendant, Marcus Stevens, was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797, and assault with intent to commit murder, MCL 750.83; MSA 28.278. He was sentenced to concurrent terms of 15 to 30 years imprisonment for the armed robbery conviction and 20 to 40 years for the assault conviction. Defendant appeals by leave granted.

The facts concerning the robbery and assault are essentially undisputed. On June 10, 1975, a party store owner was shot and robbed while working at his store. A customer gave chase when the assailant escaped in an automobile and obtained the license number of the car. Defendant was subsequently arrested.

On June 24, 1975, defense counsel moved for a competency hearing. At the hearing, held on July 17, 1975, defendant was found mentally incompetent to stand trial. A second hearing was held on January 22, 1976, at which defendant was found competent. Trial was set for June 14, 1976, and defendant filed notice of an insanity defense.

In his opening statement to the jury, defense counsel conceded that his client had committed the charged offenses. However, counsel asserted that at the time of the crimes the defendant was insane. Defense counsel indicated that defendant’s insanity would be established with three types of evidence. The first type of evidence would be the manner in which the robbery occurred. "The second type of evidence will show that Marcus Stevens was declared mentally incompetent to stand trial.”

At this point in counsel’s opening statement, the prosecution immediately asked for a mistrial and the jury was led from the courtroom. In arguing his motion, the prosecutor contended that all parties were precluded by statute, MCL 767.27a; MSA 28.966(11), from mentioning at trial the fact of defendant’s competency to stand trial. Defense counsel in reply claimed that both the statute and case law interpreting that statute permit the defendant to waive the statutory privilege if he chooses.

After hearing the arguments of counsel and reviewing the statute and case law on which they relied, the trial court granted the prosecution’s motion for mistrial.

On October 18, 1976, a new trial began. At the beginning of this second trial, defense counsel moved to dismiss on double jeopardy grounds. That motion was denied.

The first question we consider is whether the trial court erred in precluding mention by defense counsel of the decision made at defendant’s competency hearings.

The statute relied on by the prosecutor and the trial court concerns the procedure to be followed in competency hearings. It provided in relevant part:

"The diagnostic report and recommendations shall be admissible as evidence in the hearing, but not for any other purpose in the pending criminal proceedings.” MCL 767.27a(4); MSA 28.966(H)(4).

This statute was superseded by the new Mental Health Code (1974 PA 258; MCL 330.2020 et seq.; MSA 14.800[1020] et seq.). The new sections governing the admission of evidence resulting from competency proceedings were in effect by August 6, 1975. Since the error in this case occurred on June 5, 1976, the parties, and the trial court were incorrect in relying on the repealed statute.

The use of evidence resulting from the competency proceedings is now governed by two sections of the new Mental Health Code. Section 1028(3) provides:

"(3) The opinion concerning competency to stand trial derived from the examination may not be admitted as evidence for any purpose in the pending criminal proceedings, except on the issues to be determined in the hearings required or permitted by sections 1030 and 1040. The foregoing bar of testimony shall not be construed to prohibit the examining qualified clinician from presenting at other stages in the criminal proceedings opinions concerning criminal responsibility, disposition, or other issues if they were originally requested by the court and are available. Information gathered in the course of a prior examination that is of historical value to the examining qualified clinician may be utilized in the formulation of an opinion in any subsequent court ordered evaluation.” MCL 330.2028(3); MSA 14.800(1028X3).

The opinion referred to is that of the examining center or facility.

Section 1030(3) provides:

"(3) The written report shall be admissible as competent evidence in the hearing, unless the defense or prosecution objects, but not for any other purpose in the pending criminal proceeding. The defense, prosecution, and the court on its own motion may present additional evidence relevant to the issues to be determined at the hearing.” MCL 330.2030(3); MSA 14.800(1030X3).

The language employed in § 1030(3) is similar to that found in the repealed MCL 767.27a(4). Under that prior statute, the Michigan Supreme Court included the testimony of the examining psychiatrist under the statutory bar if the defendant objected to the admission of his testimony. People v Martin, 386 Mich 407, 425; 192 NW2d 215 (1971). The Court also found that other evidence resulting from the competency proceedings would be admissible if the defendant waived the statutory bar. People v Garland, 393 Mich 215; 224 NW2d 45 (1974). (See also, People v Brown, 399 Mich 350; 249 NW2d 693 [1976], People v Plummer, 65 Mich App 396, 400; 237 NW2d 482 [1975]).

Whether this case law is still applicable under the present statute need not be addressed here. Martin and its progeny addressed the question of the admissibility of evidence or testimony used at the competency hearing. They did not consider, nor was there involved there, the admissibility of the trial court’s determination of competency based upon that evidence.

In this case, defense counsel’s opening statement placed before the jury the fact that a prior judicial declaration of defendant’s incompetency to stand trial already had been made by the trial court. This, we hold, was improper and not within either the language of the statutory provisions quoted above, nor within the reasonable intention of the Legislature. Counsel here was not merely referring to information, medical opinion or other claimed evidence that might be relevant to an insanity defense; instead he was implanting in the minds of the jurors the fact that a court or some other authoritative body already had determined that the defendant was incompetent. It is one thing to refer to evidence of a claimed fact. It is another thing to refer to a judicial declaration of that fact.

There remains the question whether the second trial placed the defendant in double jeopardy. Once a jury is impaneled and sworn, a defendant is placed in jeopardy. Once placed in jeopardy, he has the right to have his guilt weighed by that tribunal. Unless the defendant consents to the trial’s interruption, or a mistrial occurs because of "manifest necessity”, the state is precluded from bringing the defendant to trial again. People v Alvin Johnson, 396 Mich 424, 431-432; 240 NW2d 729 (1976). Considerable deference will be given to the trial judge’s determination of whether manifest necessity exists justifying the declaration of a mistrial. Manifest necessity does not exist where the error could have been dealt with by a less drastic remedy. People v Benton, 402 Mich 47, 60-61; 260 NW2d 77 (1977), People v Alvin Johnson, supra, 437-438.

Given our discussion above, we doubt whether the harm caused by defense counsel’s statement could have been corrected by an instruction from the trial court. There already had been implanted in the minds of these lay jurors the fact that a judicial officer had considered and decided the incompetency issue; an issue that even some lawyers and most lay persons frequently confuse with the insanity issue. Much more than a mere admonition to disregard counsel’s remark would be needed to repair this damage deliberately caused by defense counsel.

It follows from this that the second trial before a new jury was a "manifest necessity” and, hence, did not violate the defendant’s constitutional protection against double jeopardy.

The conviction below is affirmed.

       Section 1030 directs the procedures for a competency hearing. MCL 330.2030; MSA 14.800(1030). Section 1040 covers hearings on redetermination of competency. MCL 330.2040; MSA 14.800(1040).