text:
    PEOPLE v HINES
    Docket No. 78-317.
    Submitted November 16, 1978, at Detroit.
    Decided January 16, 1979.
    Leave to appeal denied, 406 Mich 934.
    Abner Hines was convicted of conspiracy to commit armed robbery and of felony murder, Recorder’s Court of Detroit, James Del Rio, J. His convictions were affirmed by the Court of Appeals, Docket Nos. 22967, 22968, unpublished per curiam opinion, July 22, 1976. Defendant applied to the Supreme Court for leave to appeal, which was denied, 399 Mich 802 (1977). Defendant then filed a delayed motion for new trial in Recorder’s Court. That motion was denied, Donald L. Hobson, J., and defendant appeals by leave granted, raising some issues which were not before the Court of Appeals in the previous appeal. Held:

    1. The defendant was not prejudiced by the prosecution’s calling of two witnesses who refused to testify, because the two had previously agreed to testify and the court cannot say that the witnesses’ refusal to testify should have been apparent to the prosecutor prior to calling the witnesses, because there was no objection by defense counsel, and because the evidence against the defendant was overwhelming.
    2. The trial court’s instructions to the jury on malice would be erroneous under current case precedent because the jury was instructed that the only intent necessary for the felony murder was that necessary for the robbery. However, this error does not require reversal because the case was tried prior to a decision of the Court of Appeals which requires that malice be set forth as a separate element when the charge is felony murder and because there was no specific request for an instruction on malice.
    3. Failure of the trial court to give an instruction on alibi was not reversible error where no alibi instruction was requested and where proper instructions were given on the elements of the offense and on reasonable doubt.

      References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error § 309.

       81 Am Jur 2d, Witnesses §§ 28, 33.

       40 Am Jur 2d, Homicide § 50.

       40 Am Jur 2d, Homicide §§ 561, 562.

       75 Am Jur 2d, Trial § 729.

      Affirmed.
    1. Appeal and Error — Leave to Appeal — Denial op Leave — Merits op Case.
    An appellate court’s denial of leave to appeal does not constitute a ruling on the merits of a case.
    2. Witnesses — Criminal Law — Privilege — Prejudice.
    Prejudice to a defendant is presumed where a prosecutor calls a witness knowing that the witness will claim a valid privilege not to testify; however, there was no prejudice where two prosecution witnesses refused to testify after having agreed to testify as part of plea bargains, where the prosecutor testified at an evidentiary hearing that she had no knowledge that the witnesses would refuse to testify, where the court cannot say that the witnesses’ refusal should have been apparent to the prosecutor, where there was no objection by defense counsel, and where there was overwhelming evidence of the defendant’s guilt.
    3. Homicide — Murder — Malice.
    Malice has a specific meaning as an element of murder: that the defendant either intended to kill or that he knowingly created a very high risk of death with knowledge of the probable consequences, under circumstances which did not justify, excuse, or lessen the crime.
    4. Criminal Law — Instructions to Jury — Felony Murder — Malice — Court Precedent — Appeal and Error.
    A jury instruction, in a prosecution for felony murder arising from an armed robbery, which stated that the only intent required for murder was that necessary for the robbery would be erroneous under current case precedent; however, reversal of the defendant’s conviction is not necessary where the trial took place prior to a decision of the Court of Appeals which directed that malice must be set forth as a separate element when the charge is felony murder and where there was no specific request for an instruction on malice.
    5. Appeal and Error — Criminal Law — Instructions to Jury — Alibi — Request for Instruction.
    Failure of a trial court to give an instruction on alibi, absent a request for such an instruction, is not reversible error where proper instructions are given on the elements of the offense and on reasonable doubt.

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

      Carl Ziemba,< for defendant on appeal.
    Before: N. J. Kaufman, P.J., and V. J. Brennan and Bashara, JJ.
   N. J. Kaufman, P.J.

Following a jury trial held January 6 to 9, 1975, defendant was convicted of conspiracy to commit armed robbery, in violation of MCL 750.529; MSA 28.797 and MCL 750.157a; MSA 28.354(1), and felony murder, in violation of MCL 750.316; MSA 28.548. His convictions were affirmed in an unpublished per curiam opinion released July 22, 1976 (Docket Nos. 22967-68). He then applied for leave to appeal to the Supreme Court and the application was denied January 19, 1977. People v Hines, 399 Mich 802 (1977). Defendant next filed an application for delayed appeal in this Court. We granted leave on April 5, 1978.

The information in this case originally named five persons as defendants: Defendant Hines, Leonard Bradford, Alvin Dent, Kerry Donnell, and Larry Smith. Prior to trial, Dent, Donnell, and Smith pled guilty to conspiracy to commit armed robbery. As part of their plea bargains, each promised to testify against the remaining defendants. Defendant Hines and Leonard Bradford were then tried jointly. The prosecution’s evidence showed that around midnight on February 18, 1974, the five defendants planned to and did rob a party store in Detroit. One of the robbers shot and killed Leonard McNeal, the store’s proprietor.

Following the eyewitness and medical testimony, the prosecutor called Alvin Dent to the stand. The following colloquy occurred:

"Q [By the Prosecutor]: Tell this Court and the jury your name please.
"A Alvin Dent.
"Q Originally, were you one of the defendants in this matter?
"A Yes.
"Q Are you represented today by an attorney?
"A Yes, I am.
"Q Is he present?
"A Yes.
"THE COURT: Just a moment. We would put counsel on the record. You want to state your name on the record, counsel?
"MR. HALL: I think the witness can do that your Honor. I am present in the courtroom. I have advised him and discussed this matter with him and if your Honor please, you may proceed.
"MS. CLARKE [Prosecutor]: I think the witness can do that very much your Honor. Mr. Dent is represented by Attorney Elliot Hall who is presently seated in the courtroom and any questions in connection with this matter before we go forward can —
"THE COURT: That’s all right. Thank you very much.
"Q (By Ms. Clarke, continuing): Have you had an opportunity to discuss this matter prior to testifying now with Mr. Hall your attorney?
"A Yes.
"Q Now, do you recall the date of February 18, 1974?
"A Like I refused to testify on the grounds it might incriminate me.
"Q Are you doing this on the advice of counsel?
"A Yes.
"Q Do you — are you willing to answer any questions regarding this matter?
"A No.
"Q And, for what reason?
"A On the grounds that it might incriminate me.
"Q And can you —
"MS. CLARKE: I offer the witness, your Honor.”

The prosecutor then called Larry Smith to testify. Smith denied that he and the others had robbed the store.

Next, the prosecutor called Kerry Donnel to the stand. Donnell’s responses were the same as Dent’s had been: he refused to answer any questions on grounds of self-incrimination, and he was doing so on the advice of counsel.

The jury returned verdicts of guilty against both defendants. Following this Court’s affirmance and the Supreme Court’s denial of leave, Hines filed a motion for an evidentiary hearing and for a new trial in the circuit court. He asserted that the prosecutor had known that Dent and Donnell would claim their privilege. Pursuant to defendant’s motions, an evidentiary hearing was held in May, 1977. The prosecutor testified that she had had no idea that the witnesses would claim the Fifth Amendment, while Donnell testified that the prosecutor had indeed had such knowledge. The trial court denied defendant’s delayed motion for new trial on the basis that defendant had already presented the issue in the appellate courts.

Our examination of the record discloses that defendant did not raise this issue in his appeal of right. He did raise it in his application to the Supreme Court; however, denials of leave do not constitute rulings on the merits of a case. Frishett v State Farm Mutual Automobile Ins Co, 378 Mich 733 (1966), Malooly v York Heating & Ventilating Corp, 270 Mich 240, 247; 258 NW 622 (1935). Piecemeal appeals are not favored, People v Ber gin, 63 Mich App 526, 529; 234 NW2d 687 (1975), but since this Court granted defendant’s delayed application for leave to appeal, we will now proceed to determine the issue.

In People v Giacalone, 399 Mich 642, 645; 250 NW2d 492 (1977), the Court held that prejudice is presumed where a prosecutor calls a witness knowing that the witness will claim a valid privilege not to testify. In the case at bar the prosecutor stated that she did not know that Dent and Donnell would take the Fifth Amendment. Since both had promised to testify as part of their plea bargains, the prosecutor had a right to expect that they would testify. Furthermore, in an earlier trial involving Bradford, Dent (the first accomplice called in the present case) had testified. In the instant trial the second accomplice called (Smith) did not claim the privilege, and in fact gave testimony exculpating the defendants. Thus, we cannot say, as the Court did in People v Savard, 73 Mich App 175, 179; 250 NW2d 565 (1977), that it should have been apparent to the prosecutor that Dent, and later Donnell, would claim their privilege.

Moreover, we note that defense counsel failed to object. See Namet v United States, 373 US 179; 83 S Ct 1151; 10 L Ed 2d 278 (1963). It is quite possible that this was a conscious choice of trial strategy, i.e., to allow the accomplices to testify in the hope that their testimony would be favorable to Hines. Finally, in view of the overwhelming evidence of Hines’ guilt, any error can be said to be harmless beyond a reasonable doubt. See People v McNary, 43 Mich App 134, 140; 203 NW2d 919 (1972), aff’d in part, rev’d in part on other grounds, 388 Mich 799 (1972), Namet v United States, supra.

Next, defendant argues that the trial court’s instructions on malice were erroneous. The court stated the elements of murder as follows:

"One, that Mr. McNeal was alive and well prior to the incident. Two, that he is now deceased. Three, that the death was caused by the actions of one of the five defendants. Four, that his death occurred while in the commission or attempt [sic] commission to commit a robbery.
"It is not necessary to show that the killing was intended or even that the act resulted [sic] in death was intended. It is sufficient to show that the robbery was intended and that the act which resulted in the death of Mr. McNeal was committed by one of the persons committing the robbery.”

This Court has split as to whether malice is imputed from the felony or must be submitted to the jury as a separate element. Compare, for example, People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976), People v Till, 80 Mich App 16; 263 NW2d 586 (1977), and People v Wilson, 84 Mich App 636, 639-655; 270 NW2d 473 (1978) (N. J. Kaufman, J., dissenting). Malice has a very specific meaning as an element of murder: that defendant either intended to kill or that he knowingly created a very high risk of death with knowledge of the probable consequences, under circumstances which did not justify, excuse, or lessen the crime. CJI 16:3:01; People v Fountain, supra, p 493, fn 1; People v Goodard (On Rehearing), 86 Mich App 537; NW2d (1978) (Opinion of Walsh, P.J.). The trial court’s instructions in the present case did not even begin to approach this definition. The jury was told in no uncertain terms that the only intent or mens rea required for murder was that necessary for the robbery. This was erroneous.

Nevertheless, the murder conviction should not be reversed. The instant trial took place prior to the decision in Fountain, supra. Although the Fountain Court perceived its holding as following directly from previous decisions of the Michigan Supreme Court, a review of the relevant case law demonstrates that the Supreme Court’s position on malice is not so clear. See People v Wilson, supra (N. J. Kaufman, J.,dissenting). It is untenable to state, as the Court did in Fountain, that Michigan has "no felony murder doctrine”. Unquestionably, Fountain was the first Michigan case to explicitly decide that the court’s instructions must set forth malice as a separate element when the charge is felony murder. For this reason reversal is not warranted in cases tried prior to Fountain, at least not in the absence of a specific request for an instruction on malice. There was no such request here.

Defendant also claims error in the trial court’s failure to instruct that defendant need not prove his alibi defense in order to prevail with the jury. Defendant did not request such an instruction at trial. In People v Burden, 395 Mich 462, 467; 236 NW2d 505 (1975), the Court held that it is not reversible error to fail to give an unrequested alibi instruction, as long as proper instructions are given on the elements of the offense and reasonable doubt. Absent the felony murder-malice problem considered above, these requirements were satisfied.

Defendant also claims that he was denied a fair trial by the prosecutor’s action of informing the jury that defendant’s accomplices had pled guilty. This issue was decided adversely to defendánt in his appeal of right, and this Court’s determination is the law of the case. See Allen v Michigan Bell Telephone Co, 61 Mich App 62, 65; 232 NW2d 302 (1975), lv den, 395 Mich 793 (1975).

Defendant’s remaining arguments have been considered by the Court and found to be without merit.

Affirmed.


source: Caselaw Access Project

author: Allen, P.J.

license: Public Domain

text:
    BIKOS v NOBLISKI
    Docket No. 78-28.
    Submitted November 8, 1978, at Detroit.
    Decided January 16, 1979.
    Michael and Antoinette Nobliski were married and the parents of two young children when Antoinette died. Michael Nobliski remarried and his present wife formally adopted the two children. Florence Bikos, Antoinette’s mother, commenced an action against Michael Nobliski under a statute which allows for enforcement of visitation of grandchildren by grandparents upon the death of the grandparent’s child. The complaint alleged that her visitations with the children were being interfered with. The Wayne Circuit Court, Roman S. Gribbs, J., ordered that Florence Bikos be allowed periodic visitations. Nobliski appeals, alleging that the trial court erred because the plaintiffs cause of action under the grandparent-visitation statute was terminated by the stepmother’s formal adoption of the children, and that even if the cause of action were not extinguished, the order allowing visitation was not in the best interests of the children. Held:

    Upon adoption, an adopting parent stands in law in all respects as though the adopted child had been born to the adopting parent, and is thus, at law, a natural parent. Therefore, the condition of the grandparent-visitation statute, that the child’s natural parent be deceased, no longer exists, and the grandparent has no standing to enforce visitation under the statute.
    Reversed.
    1. Adoption — Parent and Child — Infants — Statutes — Natural Parents.
    The effect of Michigan’s adoption statute is to make an adopted child as much as possible a natural child of the adopting parent, and to make the adopting parent as much as,possible the natural parent of the child (MCL 710.60; MSA 27.3178[555.601]).

      References for Points in Headnotes

       2 Am Jur 2d, Adoption § 84.

       2 Am Jur 2d, Adoption § 85.

       2 Am Jur 2d, Adoption § 83.

      2. Adoption — Grandparents — Parent and Child — Infants — Visitation — Deceased Parent — Statutes.
    A natural grandparent may, by statute, request visitation of his or her grandchild where the child’s natural parent, a child of the grandparent, is deceased; however, if a surviving parent remarries and the stepparent adopts the child, the natural grandparent has no standing under the statute because the adopting parent becomes in law the natural parent of the child and the condition of the grandparent-visitation statute, that the child’s parent be deceased, is no longer present (MCL 722.27a; MSA 25.312[7a]).
    3. Adoption — Parent and Child — Infants — Natural Parents — Adoptive Parents — Policy.
    The Michigan adoption scheme expresses a policy of severing, at law, the prior natural family relationships and creating a new and complete substitute relationship after adoption.

      Merrill, Tatham & Rosati, for plaintiff.

      John D. Lazar and Nussbaum, McEvoy & Adler, for defendant.
    Before: Allen, P.J., and R. M. Maher and J. E. Townsend, JJ.

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

   Allen, P.J.

What effect does the adoption of a child have on the child’s grandparent’s suit to secure court-enforced visitation with the child pursuant to the grandparent visitation statute, MCL 722.27a; MSA 25.312(7a)? On this issue of first impression the lower court concluded that a grandparent could maintain an action for visitation under the statute, after adoption. We reverse.

Deborah Nobliski, born July 16, 1970, and Richard Nobliski, born June 16, 1972, were the two children born to defendant and Antoinette Nobliski during their marriage. In April, 1975, Antoinette Nobliski died. Antoinette was the daughter of plaintiff. Defendant married his present wife, Sarah, in July, 1975, and she formally adopted defendant’s two children in September, 1976. Defendant always maintained custody of the two children except for a time prior to their natural mother’s death when she and defendant were separated. Antoinette Nobliski had primary custody of the children at that time.

After the death of Antoinette Nobliski, plaintiff grandmother demanded visitation with the children. Attempts were made to allow visitation, but defendant and Sarah Nobliski, the stepmother, felt the plaintiff was creating divisiveness in their family, undermining their authority over the children and confusing and harming the children. Plaintiff commenced suit under MCL 722.27a; MSA 25.312(7a), and claimed her visitations were being interfered with. She never contended that defendant and his wife ever inadequately cared for the children. The court granted her temporary limited visitation. The children later underwent psychiatric examinations resulting in recommendations that if there were to be visitation, then it should take place in the home environment of the children and be limited to two hours per month. After concluding that plaintiffs suit was brought properly, the lower court held a hearing to determine what visitation, if any, was in the best interests of the children. At the close of the hearing on November 17, 1977, the court ordered visitation for a two-hour period at defendant’s home on the third Saturday or Sunday of each month for three months, and thereafter the court ordered visitation for at least four hours per month away from defendant’s home.

Defendant, as surviving parent and natural father of the children, contends the lower court erred in concluding that adoption of the children did not terminate plaintiffs cause of action under the grandparent-visitation statute. Defendant also contends that, even if the plaintiffs grandparent-visitation suit survived the adoption, the court’s decision that grandparent visitation was in the best interest of the children was clearly erroneous and against the great weight of the evidence.

The grandparent visitation statute was added to the Child Custody Act of 1970 by 1971 PA 80. The statute provides:

"If either the father or mother of an unmarried child is deceased, a parent of the deceased person may commence an action, by complaint or complaint and motion for an order to show cause, in the circuit court of the county in which the child resides for visitation of the child during its minority. If the court finds that such visitation would be in the best interests of the child, it may provide for visitation of the child by general or specific terms and conditions.” MCL 722.27a; MSA 25.312(7a).

The only case in which this Court considered the statute was Kernozek v Hershey, 46 Mich App 393; 208 NW2d 242 (1973). In Kernozek, where a denial of the grandparents’ request for visitation was affirmed, adoption of the children was not an issue. Also important in this case is the effect of subsection 1 of §60 of the Adoption Code, MCL 710.60; MSA 27.3178(555.60):

"(1) After the entry of the order of adoption, the adoptee shall, in case of a change of name, be known and called by the new name. The person or persons adopting the adoptee shall thereafter stand in the place of a parent or parents to the adoptee in law in all respects as though the adopted person had been born to the adopting parents and shall thereafter be liable for all the duties and entitled to all the rights of parents.” (Emphasis supplied.)

Subsection 2 of this statute primarily deals with an adopted person’s rights as an heir. The effect-of-adoption statute was amended in 1974, as part of an extensive revision of the Michigan Adoption Code. 1974 PA 296. Upon amendment, the Legislature divided the statute into two subsections and eliminated an adopted person’s status as an heir of the natural parents after adoption.

In the case before us, the lower court reasoned that the Legislature must have foreseen a situation such as the instant one, viz: where an adopting parent and the remaining natural parent desire to exclude the parents of the deceased natural parent. The lower court concluded that if the Legislature intended to exempt such cases from the ambit of the grandparent-visitation statute, it would have done so expressly.

As noted by the lower court, this same reasoning was employed by a New York intermediate appellate court in Scranton v Hutter, 40 App Div 2d 296; 339 NYS2d 708 (1973). In that case the New York court held that the natural, maternal grandparents could maintain an action undér. New York’s grandparent-visitation statute despite the adoption of the children by the stepmother, ánd remanded for a hearing on the best interests of the children. The New York grandparent-visitation statute is essentially the same as Michigan’s. However, New York’s effect-of-adoption statute has a focus different from Michigan’s. The New York statute focuses on descent and succession. The Scranton court quoted part of the statute and described it as follows:

"Section 117 of the Domestic Relations Law, which defines the effect of adoption upon natural and adoptive family ties, is comparable to section 257 of the California Probate Code. It states in part (subd. 2): 'This section shall apply only to the intestate descent and distribution of real property’ and is thus essentially a succession statute as is section 257 of the California Probate Code.” 40 App Div 2d at 299; 339 NYS2d at 711.

The Michigan effect-of-adoption statute focuses on more than just succession. Inheritance and succession are primarily covered in subsection 2 of the statute. Subsection 1, quoted earlier, focuses on the rights and status of the adopting parent or parents, as well as of the adoptee. The effect of the statute is to make the adopted child as much as possible a natural child of the adopting parents, and to make the adopting parents as much as possible the natural parents of the child. The statute specifically provides that the adopting parents "stand in the place of a parent * * * in all respects as though the adopted person had been born to the adopting parents” and are "entitled to all the rights of parents”. Language as specific as this does not appear in the New York or California statutes. But in Michigan, adoption must be preceded by the release or termination of parental rights with respect to any living natural parent who is not the spouse of the adopting parent. MCL 710.28, 710.29, 710.36, 710.37, 710.41, 710.51; MSA 27.3178(555.28), 27.3178(555.29), 27.3178(555.36), 27.3178(555.37), 27.3178(555.41), 27.3178(555.51).

Our reading of the grandparent-visitation statute in conjunction with the effect-of-adoption statute leads us to conclude that once the stepparent adopts the child, the grandparent-visitation statute ceases to apply. The Legislature did not have to expressly exempt adoption situations, as the lower court concluded, if it did not want the visitation statute to apply to cases such as the one at bar. The interplay of the Michigan adoption and visitation statutes already accomplishes this.

Under the visitation statute a grandparent may request visitation where the grandchild’s parent (the grandparent’s child) is deceased. But once a child is adopted, the child has a parent. The adopting parent becomes the natural parent of the child "in law in all respects”. Hence, the condition of the visitation statute that the child’s parent be deceased is not present as a matter of law, and the natural grandparent has no standing under the statute.

This conclusion requires no sophisticated legerdemain. It follows from a straightforward reading of the statutes involved. To reach the opposite result, urged by plaintiff, would lead to some unusual situations which we doubt the Legislature intended. First of all, a grandchild could easily end up with three sets of grandparents. If both natural parents died this could result in four sets of grandparents. Second, if a child is adopted through a social agency, and the natural mother or father, or both, later died, then the parent of the natural parent could request visitation under the statute. Since neither the effect-of-adoption statute nor the grandparent-visitation statute is limited to situations where one natural parent retains custody, this result is possible under plaintiffs position.

Third, the surviving parent and the adopting parent could exclude either or both of their own parents at will, but could not do so as to the parents of the deceased spouse. This further leads to the fact that the adopting parent would not have the right to preclude certain persons (the natural grandparents) from visitation as did the natural parent. And this is directly contrary to the intent of the effect-of-adoption statute, MCL 710.60; MSA 27.3178(555.60), under which adopting parents “stand in the place of a parent * * * in all respects * * * ” and are “entitled to all the rights of parents”.

Research reveals a number of states whose courts have reached the same result as we do. Poe v Case, 565 SW2d 612 (Ark, 1978); Browning v Tarwater, 215 Kan 501; 524 P2d 1135 (1974); Smith v Trosclair, 321 So 2d 514 (La, 1975); Matter of Fox, 567 P2d 985 (Okla, 1977); Deweese v Crawford, 520 SW2d 522 (Tex Civ App, 1975). Although the statutory language varies from state to state, for the most part these cases arose from remarkably similar situations.

Of course, there are courts which support plaintiffs position. New York and California cases already have been mentioned and distinguished. Other cases include Mimkin v Ford, 66 NJ 426; 332 A2d 199 (1975), and Graziano v Davis, 50 Ohio App 2d 83; 361 NE2d 525 (1976). The Graziano court dealt with an Ohio adoption scheme which does not sever the relationship with the natural family nearly so clearly as do Michigan’s statutes. The effect-of-adoption statute dealt with by the New Jersey court in Mimkon v Ford, supra, was primarily a succession statute. It was apparently designed for "children requiring placement for adoption” and went so far as to provide for continuation of rights as to the natural parent if the adoption was consensual. The Michigan adoption scheme expresses a policy of severing, at law, the prior, natural family relationships and creating a new and complete substitute relationship after adoption.

We hold that the effect of the grandparent-visitation statute terminates once a child has a complete family as evidenced by the formality of adoption. This does not mean that the natural grandparents can never visit their grandchildren. It does mean that whether such visitation is to occur is a decision left to the natural parent and the adopting parent, just as it is left to the natural parents when they are both alive. Nor does our decision mean that the best interests of the child are not provided for. The Child Custody Act of 1970, MCL 722.21 et seq.; MSA 25.312(1) et seq.; permits a change of custody if it will be in a child’s best interest. A parent, state agency, or third person (including a grandparent) may sue under this act. MCL 722.25; MSA 25.312(5). If the care of a child becomes egregious, criminal sanctions apply. See Chapter XX of the Penal Code, MCL 750.135 et seq.; MSA 28.330 et seq.

Because of our analysis and decision we need not reach defendant’s second issue of whether the lower court erred or abused its discretion in finding that visitation was in the best interests of the children here involved.

The lower court’s decision is reversed, and the order of visitation is vacated. No costs, a public question being involved.

         "(2) After entry of the order of adoption there shall not be any distinction between the rights and duties of natural progeny and ■ adopted persons, and the adopted person shall become an heir at law of the adopting parent or parents, and an heir at law of the' lineal and collateral kindred of the adopting parent or parents. After entry of the order of adoption, the adopted person shall no longer be an heir at law of his or her natural parents, except that a right, title, or interest vesting before entry of the final order of adoption shall not be divested by that order.” MCL 710.60; MSA 27.3178(555.60)

       New York Domestic Relations Law § 72. The New York statute refers to "visitation rights” but the Michigan statute never describes the grandparents’ interest as a "right”.

       New York Domestic Relations Law § 117.

       The reference to the California statute arose from the New York court’s reliance on Roquemore v Roquemore, 275 Cal App 2d 912; 80 Cal Rptr 432 (1969). Roquemore dealt with a factual situation similar tp that in the instant case and in Scranton. The Roquemore court held that the adoption of the children did not prevent grandparent visitation under the statute. But the California adoption statute was much more a "succession statute” than either the Michigan or New York statute.

        Scranton v Hunter, 40 App Div 2d 296; 339 NYS2d 708 (1973), overruled two prior lower court decisions. State ex rel Herman V

        Lebovits, 66 Misc 2d 830; 322 NYS2d 123 (1971); People ex rel Levine v Rado, 54 Misc 2d 843; 283 NYS2d 483 (1967). A subsequent lower court decision, Geri v Fanto, 79 Misc 2d 947; 361 NYS2d 984 (1974), decided the issue contrary to the Scranton court. The Court of Appeals of New York was confronted with a case where it was unnecessary to decide the issue, but the court noted in dicta that the grandparents had' no "absolute or automatic right of visitation”. Lo Presti v Lo Presti, 40 NY2d 522; 387 NYS2d 412; 355 NE2d 372 (1976).

       We note in passing that it will be a very rare case where damage to children done by the acrimony present between the parties where a court must order visitation (and if the parties must come to court, then the acrimony is undoubtedly present) will be outweighed by the benefits of visitation, the artificial nature of which must be evident even to children, and therefore be in the children’s best interests. See discussion in Mimkon v Ford, 66 NJ 426; 332 A2d 199 (1975), dissenting opinion, and Geri v Fanto, 79 Misc 2d 947; 361 NYS2d 984 (1974).


author: D. F. Walsh, P.J.

text:
    LAWRENCE v DEPARTMENT OF CORRECTIONS
    Docket No. 78-326.
    Submitted November 7, 1978, at Lansing.
    Decided January 16, 1979.
    Leave to appeal applied for.
    James Lawrence, an inmate at the State Prison of Southern Michigan, was found guilty by a prison disciplinary committee of violation of a prison rule. That decision was upheld by the prison warden, and Lawrence thereafter filed a complaint in circuit court seeking judicial review pursuant to the Administrative Procedures Act. The defendant Department of Corrections moved for accelerated judgment on the basis that the Administrative Procedures Act does not apply to prison disciplinary proceedings. The Ingham Circuit Court, Michael G. Harrison, J., denied that motion, ruling that a prison disciplinary hearing is a contested case and that an aggrieved inmate can seek judicial review. Defendant appeals by leave granted. Held: The statutory definition of a "contested case” is plain and unambiguous and a prison disciplinary hearing falls squarely within that definition. The plaintiff is entitled to the safeguards set forth in the Administrative Procedures Act, and to a judicial review of the disciplinary hearings.
    Affirmed.
    1. Administrative Law — Administrative Procedures Act — Department of Corrections — Statutes.
    The Department of Corrections is an agency for purposes of the Administrative Procedures Act, and all agency proceedings are governed by the act unless expressly exempted (MCL 24.203[2], 24.313; MSA 3.560[103][2], 3.560[213]).
    2. Administrative Law — Administrative Procedures Act — Contested Case — Judicial Review — Statutes.
    A party to an agency proceeding which qualifies as a contested case under the Administrative Procedures Act is entitled to certain procedural safeguards and to judicial review of the agency proceedings (MCL 24.271 et seq., 24.301; MSA 3.560[171] et seq., 3.560[201]).

      References for Points in Heabnotes

       2 Am Jur 2d, Administrative Law §§ 201-204.

       2 Am Jur 2d, Administrative Law § 560.

       73 Am Jur 2d, Statutes § 254.

       60 Am Jur 2d, Penal and Correctional Institutions § 45.

      3. Statutes — Construction of Statutes — Judicial Construction.
    Judicial construction of a statute or attempted interpretation to vary the plain meaning of a statute is precluded where there is no necessity to reconcile conflicting statutes, where there is no absence of adequate definitions of relevant terms, and where the statutory language is plain and unambiguous.
    4. Administrative Law — Administrative Procedures Act — Prisons — Prison Disciplinary Hearing — Statutes.
    A prison disciplinary hearing is a contested case under the provisions of the Administrative Procedures Act and the parties to such a hearing are entitled to the procedural safeguards of the act and have the right to judicial review (MCL 24.203[3], 24.271 et seq., 24.301; MSA 3.560[103][3], 3.560[171] et seq., 3.560[201]).
    James Lawrence, in propria persona.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Thomas L. Casey, Assistant Attorney General, for defendant.
    Before: D. F. Walsh, P.J., and T. M. Burns and D. E. Holbrook, Jr., JJ.
   D. F. Walsh, P.J.

Defendant Department of Corrections appeals by leave granted from the order of the Ingham County Circuit Court denying the defense motion for accelerated judgment. The court ruled, inter alia, that a prison misconduct hearing is a "contested cáse” within 'the meaning of Michigan’s Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. Defendant’s appeal is limited to the issue presented in this portion of the trial judge’s ruling. We affirm.

Plaintiff James Lawrence was an inmate at the State Prison of Southern Michigan at Jackson. On August 3, 1976, a misconduct report was filed against him. It was alleged that he had violated the prison rule against possession of marijuana. After an August 6, 1976, hearing, plaintiff was found guilty and was sentenced to detention for five days, transferred from medium to close security and from the Trusty Division of the prison to close custody. A recommendation that his good time be reviewed was made to the warden. Notice of the misconduct determination was placed in files available to the parole board and other Department of Corrections officials. Plaintiff appealed and the decision of the disciplinary committee was upheld by the warden on August 11, 1976.

Plaintiff filed a complaint in circuit court seeking judicial review under the Administrative Procedures Act, MCL 24.301; MSA 3.560(201). Defendant moved for accelerated judgment asserting that the APA did not apply to prison misconduct proceedings. The trial judge ruled that a prison disciplinary hearing is a "contested case” and that an aggrieved inmate can seek judicial review in circuit court under the APA.

Section 3(2) of the APA, MCL 24.203(2); MSA 3.560(103X2), defines "agency” as "a state department, bureau, division, section, board, commission, trustee, authority or officer, created by the constitution, statute, or agency action”. It is not disputed that the Department of Corrections is an "agency” for purposes of the APA. Human Rights Party v Michigan Corrections Comm, 76 Mich App 204; 256 NW2d 439 (1977), lv den 402 Mich 906 (1978), Parshay v Department of Corrections, 61 Mich App 677; 233 NW2d 139 (1975), Lundberg v Corrections Comm, 57 Mich App 327; 225 NW2d 752 (1975). The APA further provides that, unless expressly exempted, all agency proceedings are governed by the act. MCL 24.313; MSA 3.560(213). A party to an agency proceeding which qualifies as a "contested case” is entitled to certain procedural safeguards, MCL 24.271 et seq.; MSA 3.560(171) et seq., and has the right to judicial review, MCL 24.301; MSA 3.560(201). Presented for our determination here is the question whether a prison misconduct hearing is a "contested case” as that term is defined in § 3 (3) of the act, MCL 24.203(3); MSA 3.560(103X3).

Section 3 of the APA defines "contested case” as follows:

"(3) 'Contested case’ means a proceeding, including but not limited to rate-making, price fixing and licensing, in which a determination of the legal rights, duties or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing.”

Under generally recognized principles of statutory construction, when there is no necessity to reconcile conflicting statutes, Wayne County Civil Service Comm v Board of Supervisors, 384 Mich 363; 184 NW2d 201 (1971), when there is no absence of adequate operational definitions of relevant terms, Prisoners’ Labor Union v Department of Corrections, 61 Mich App 328; 232 NW2d 699 (1975), lv den 394 Mich 843 (1975), and when the statutory language is plain and unambiguous, Jones v Grand Ledge Public Schools, 349 Mich 1, 9-10; 84 NW2d 327 (1957), judicial construction or attempted interpretation to vary the plain meaning of the statute is precluded.

The definition of a "contested case” is clear and unambiguous. The statutory provision in which we find it requires neither construction nor interpretation. Application of the plain language of the statute leads unalterably to the conclusion that a prison disciplinary hearing fits squarely within the terms of the definition. Such a hearing is certainly a proceeding in which the Department of Corrections is required to make a determination as to an inmate’s legal rights, duties or privileges and there is no question that due process requires that the inmate be given an opportunity for an evidentiary hearing. Wolff v McDonnel, 418 US 539; 94 S Ct 2963; 41 L Ed 2d 935 (1974), Wong Yang Sung v McGrath, 339 US 33; 70 S Ct 445; 94 L Ed 616 (1950).

We recognize that the premier rule of statutory construction is to discover and give effect to the intent of the Legislature. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich 184; 253 NW2d 646 (1977), reh den 400 Mich 1029 (1977). It may bp that if the Legislature had foreseen the application of the instant statutory provision to a prison misconduct hearing, it would have carved out an exception. This possibility, however, does not authorize or justify judicial usurpation of the legislative function. Husted v Consumers Power Co, 376 Mich 41; 135 NW2d 370 (1965). The judiciary has no alternative but to apply a statute in accordance with its plain meaning unless "the absurdity and injustice of applying the provision to the case would be so monstrous that all mankind would, without hesitation, unite in rejecting the application”. Sturges v Crowninshield, 17 US (4 Wheat) 122, 203; 4 L Ed 529, 550 (1819), quoted in 2A Sutherland, Statutory Construction, § 46.04, p 55. Such is not the case here. There is principled disagreement as to whether fundamental fairness requires extending to inmates involved in prison misconduct hearings the expanded procedural safeguards of the APA.

Because the statutory definition of a "contested case” is plain and unambiguous and because prison disciplinary hearings fall squarely within that definition, we rule that a prison disciplinary hearing is a "contested case” as that term is defined in the APA and that parties to such proceedings are entitled to the procedural safeguards set forth in Chapter 4 of the act, MCL 24.271 et seq.; MSA 3.560(171) et seq., and have the right to judicial review, MCL 24.301; MSA 3.560(201).

We emphasize that our ruling here is necessitated by the nature of our judicial function. We urge the Legislature, however, to consider the practical effect of the necessary application of the statute. In Wolff v McDonnell, supra, the United States Supreme Court set forth minimal due process protections to be observed in prison disciplinary hearings. In fashioning the type of process which is constitutionally due in this context, the Court discussed at length the unique nature of the prison setting. 418 US 559-572. The procedural protections which are appropriate in a prison setting have been described as limited in scope; the need to balance procedural protection against the interests of the prison system and the public have often been observed. See, e.g., Polizzi v Sigler, 564 F2d 792, 798 (CA 8, 1977).

It is not for this Court to resolve the debate over the type of process which is due Michigan inmates accused of misconduct. Barring constitutional implications, such policy determinations are left for legislative resolution.

The trial court is affirmed.

       Procedural protections currently afforded Michigan inmates charged with misconduct are significantly less extensive than those set forth in the APA. See Michigan Department of Corrections Hearings Handbook (1977). The APA’s provision for cross-examination of witnesses in a contested case, MCL 24.272; MSA 3.560(172), for example, has no counterpart in the list of rights of inmates at disciplinary hearings. In addition to lacking the right to confront and cross-examine adverse witnesses, inmates have only a qualified right to present witnesses on their own behalf. Contrast with this the APA’s broad recognition of this right. MCL 24.272(3); MSA 3.560(172X3). Under the APA, an official record of evidence and documents must be kept; all proceedings must be recorded and available for transcription. MCL 24.286; MSA 3.560(186). There is no such requirement under current prison disciplinary rules.

       Recently the Michigan Supreme Court held that the Department of Corrections was immune from local zoning ordinances. Dearden v Detroit, 403 Mich 257; 269 NW2d 139 (1978). In language unnecessary to the disposition of the issue before the Court in Dearden the Court stated that the department was "not subject in any way to any other legislative act”. 403 Mich at 265. We are not persuaded that in so saying the Supreme Court intended to rule that the Department of Corrections was not an "agency” subject to the provisions of the APA. The continued validity of those cases which have subjected the department to the rule-making provisions of the APA cannot, we believe, be seriously disputed. Lundberg v Corrections Commission, supra. The Legislature’s intent with respect to the scope of the APA is succinctly set forth in MCL 24.313; MSA 3.560(213): "This act * * * applies to all agencies and agency proceedings not expressly exempted.”

       The Ninth Circuit has held that the Federal APA does not apply in the Federal prison disciplinary process. Clardy v Levi, 545 F2d 1241 (CA 9, 1976). In contrast, the Florida appellate court has found nothing in Florida’s APA to exclude prison disciplinary proceedings from its scope. Florida Department of Offender Rehabilitation v Jerry, 353 So 2d 1230 (Fla App 1978). Nor has there been unanimous agreement as to the wisdom of the Supreme Court’s holding in Wolff regarding the limited scope of due process protections constitutionally mandated in the prison disciplinary setting. See, e.g., Note, The Fourteenth Amendment and Prisons: A New Look at Due Process for Prisoners, 26 Hastings LJ 1277 (1975); Calhoun, The Supreme Court and the Constitutional Rights of Prisoners: A Reappraisal, 4 Hastings Con L Quarterly 219 (1977); Note, Prisoner Rights in a Disciplinary Proceeding, 29 Baylor L Rev 620 (1977).

       Defendant cites Emmet County v State Tax Comm, 397 Mich 550; 244 NW2d 909 (1976). That case is plainly distinguishable from the instant case. In Emmet County, the Supreme Court held that the APA did not apply to intercounty equalization proceedings before the State Tax Commission. Declining to hold that the Legislature intended to make a long-established system unworkable by imposing another procedure on it, the Court examined the "contested case” provision and the administrative structure of the tax commission and found that the APA did not apply. The Court noted that the "contested case” provision contemplates an adversary proceeding, and that the tax commission could not be logically designated an adversary in state equalization proceedings. The Court further observed that there had never been a right to appeal to an administrative agency from an intercounty equalization determination. Id. at 556-557.
      In contrast, a prison disciplinary hearing is primarily adversary in nature. The inmate is asked to defend himself against a charge of misconduct. The charging officer is clearly in an adversary position vis-a-vis the prisoner. In addition, the administrative structure of the prison system fits the agency model contemplated in the APA. The prisoner is given an evidentiary hearing and an opportunity to appeal to the head of the prison after an adverse determination by the disciplinary hearing officer. Review on appeal is not de novo. Compare, IBM Corp v Department of Treasury, 71 Mich App 526, 538-539; 248 NW2d 605 (1976), in which the availability of a de novo hearing where the APA applied led the Court to hold that an informal initial hearing was not a "contested case”.


author: D. E. Holbrook, J. G. R. Cook, J.

text:
    MILLER v STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    Docket No. 78-512.
    Submitted November 3, 1978, at Grand Rapids.
    Decided January 17, 1979.
    Amendatory order entered April 25, 1979.
    Leave to appeal applied for.
    Carl Saltzman was killed in an automobile accident. His widow, now Linda Miller through remarriage, and her two minor children, Dennis and Karla Saltzman, were injured in the accident. Decedent had no-fault automobile insurance coverage through State Farm Mutual Automobile Insurance Company. At the time of Carl Saltzman’s death his gross earnings were $806 per month. The State Farm adjuster in calculating the family’s survivors’ economic loss benefits reduced decedent’s gross annual wages by a deduction of Federal income taxes, Michigan income taxes, social security payments and a personal consumption factor of 22 percent which reflected the company’s estimate of household expenses saved due to the husband’s death. State Farm refused to make any payments to the survivors claiming that the $614 per month the family received in social security benefits exceeded the decedent’s net income after taxes and personal consumption deductions. Linda Miller, individually and on behalf of her children, brought an action in St. Joseph Circuit Court, claiming benefits as survivors under the no-fault act based upon the amount of decedent’s gross wages. Judgment for plaintiffs in the amount of $806 per month, the amount of decedent’s gross pay, Robert E. A. Boyle, J. No taxes were subtracted nor was the decedent’s personal consumption factor taken into account. Defendant appeals, alleging (1) that the subtraction of benefits section of the automobile no-fault insurance act is constitutional, (2) the statute allows a reduction of benefits by an amount representing the sum of the taxes paid by decedent, and (3) the statute allows a reduction of that amount of wages which would have been consumed by the decedent personally. Held:

    1. The section of the no-fault automobile statute which allows an insurer to set off benefits payable against benefits received from a governmental source is unconstitutional.

      References for Points in Headnotes

       New Topic Service Am Jur 2d, No-Fault Insurance § 1.

       73 Am Jur 2d, Statutes § 332.

       New Topic Service Am Jur 2d, No-Fault Insurance § 6.

      2. Survivors loss benefits received under the no-fault automobile insurance statute may not be reduced by the amount the decedent would have paid in taxes.
    3. The trial court erred in failing to reduce the plaintiffs,’ benefits by the amount of expenses avoided by reason of the decedent’s death. Such deductions are allowed under the no-fault act. Where plaintiffs stipulate to a 22 percent reduction figure only for the purposes of their motion for partial summary judgment, remand to the trial court is necessary for a determination of the proper amount, if any, to be deducted from the benefits to be received by the plaintiffs.
    Affirmed, but remanded with instructions.
    G. R. Cook, J., concurred with the decision that benefits received by plaintiffs pursuant to the no-fault automobile statute should not be reduced by the amount the decedent would have paid in taxes and that plaintiffs’ benefits should be reduced by the amount of expenses avoided by reason of the decedent’s death. He would hold, however, that the section of the no-fault automobile insurance statute which allows an insurer to set off benefits payable against benefits received from a governmental source is constitutional.
    Opinion of the Court
    1. Constitutional Law — Automobiles — No-Fault Insurance — Benefits — Set Offs — Statutes.
    A section of the no-fault automobile insurance statute which provides that "benefits provided or required to be provided under the laws of any state or the Federal government shall be subtracted from the personal protection insurance otherwise payable for the injury” is unconstitutional (MCL 500.3109[1]; MSA 24.13109[1]).
    2. Statutes — Statutory Construction — Legislative Intent — Sections of Same Statutes.
    Courts should not “read in” to one section of a statute that which the Legislature expressly provided in another section of the same statute.
    3. Automobiles — No-Fault Insurance — Survivor’s Loss — Taxes — Statutes.
    Benefits received under the survivor’s loss section of the no-fault automobile insurance statute may not be reduced by the amount decedent would have paid in Federal income taxes, Michigan income taxes and social security payments (MCL 500.3108; MSA 24.13108).
    4. Automobiles — No-Fault Insurance — Survivor’s Loss — Benefits — Expenses — Taxes — Statutes.
    A survivor’s no-fault automobile insurance benefits may be reduced by the amount of expenses avoided by reason of the decedent’s death (MCL 500.3108; MSA 24.13108).
    Concurrence in Part, Dissent in Part by G. R. Cook, J.
    5. Automobiles — No-Fault Insurance — Survivor’s Loss — Benefits — Reduction of Benefits — Taxes — Expenses —■ Statutes.
    Benefits received pursuant to the survivor’s loss section of the no-fault automobile insurance statute should not be reduced by the amount the decedent would have paid in taxes; survivor’s benefits, however, should be reduced by the amount of expenses avoided by reason of the decedent’s death (MCL 500.3108; MSA 24.13108).
    6. Constitutional Law — Automobiles — No-Fault Insurance — Benefits — Set Offs — Public Policy — Statutes.

      A section of the no-fault automobile insurance statute which allows an insurer to set off beneñts payable against beneñts received from a governmental source is constitutional and not violative of public policy (MCL 500.3109[1]; MSA 24.13109[1]).

      Sloan, Zarbock, Risdon, Beneñel & Farrer, for plaintiffs.

      James, Dark & Brill, for defendant.
    Before: Beasley, P.J., and D. E. Holbrook and G. R. Cook, JJ.

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

   D. E. Holbrook, J.

Here again we are presented with a dispute over the amount of benefits due the dependents of a decedent covered under the no-fault automobile insurance act. The fact of coverage is not at issue, merely the amount of liability. The plaintiff and her minor children were injured January 10, 1976, in an automobile accident in which their husband and father was killed. Prior to his death, the family lived soley upon the decedent’s earnings of approximately $190 per week. On April 21, 1976, plaintiffs met with the defendant-appellant’s adjustor to calculate the family’s survivors’ economic loss benefits. The adjustor first reduced the decedent’s gross annual wage by a "personal consumption factor” of 22 percent which reflected State Farm’s estimate of the household expenses saved due to the decedent’s death. The adjustor stated further that because the $614 per month which the plaintiff and her children received from social security exceeded the decedent’s "net income” as thusly calculated, State Farm refused to make any payments to the decedent’s survivors.

Plaintiff then brought this action on behalf of her children and herself, claiming benefits in the amount of the decedent’s gross wages as survivors under the no-fault act. She immediately entered a motion for partial summary judgment, claiming that amount of the deceased’s wages in excess of defendant’s estimated "personal consumption factor”. A hearing on this motion was held June 28, 1977, at which time the circuit judge announced that under the holding in O’Donnell v State Farm Mutual Automobile Ins Co, 70 Mich App 487; 245 NW2d 801 (1976), lv gtd 397 Mich 848 (1976), the defendant was not entitled to credit for the amount of social security payments received by the survivors.

On July 14, 1977, the court entered judgment in this matter, awarding the plaintiffs $806 per month, the decedent’s gross pay, together with interest and attorney’s fees. No taxes were subtracted, nor was the defendant’s "personal consumption factor” taken into account. The defendant appeals of right, alleging two major errors in the trial court’s decision. First, the defendant alleges that the trial court erred in following the O’Donnell holding that MCL 500.3109(1); MSA 24.13109(1) is unconstitutional; the defendant asserts that this section of the no-fault act properly authorizes it to reduce the plaintiffs’ survivors’ benefits by the amount of social security benefits received. Next, the defendant claims that § 500.3108 of the same act allows it to reduce the benefits paid to plaintiffs by an amount representing the sum of taxes paid by the decedent plus that amount of the decedent’s wages which would have been consumed by him personally.

We may deal with the defendant’s first contention summarily. Section 3109(1) provides that: "Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.” This section of the no-fault act has been considered by several panels of the Court of Appeals. The majority of these decisions have held the section to be unconstitutional. Other panels of this Court have upheld § 3109(1), however, finding that it is reasonably related to the no-fault act’s expressed purpose of reducing the cost of insurance. For the reasons expressed by this writer in dissent in LeBlanc v State Farm Mutual Automobile Ins Co, 87 Mich App 555; 274 NW2d 69 (1978), we affirm the circuit court’s holding that § 3109(1), as applied in this case, is unconstitutional.

Determining whether the lower court erred in not allowing State Farm to reduce the plaintiffs’ benefits in accordance with the defendant’s interpretation of § 3108 is a more difficult question. Section 3108 reads as follows:

"Personal protection insurance benefits are payable for a survivors’ loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of his death would have received for support during their dependency from the deceased if he had not suffered the accidental bodily injury causing death and expenses, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if he had not suffered the injury causing death. The benefits payable for survivors’ loss in connection with the death of a person in a single 30-day period shall not exceed $1,000.00 and is not payable beyond the first 3 years after the date of the accident.”

The defendant contends that since the above statute directs that "a survivors’ loss * * * consists of * * * contributions * * * that dependents of the deceased * * * would have received for support” (emphasis supplied), it is properly read to require that the plaintiffs be awarded only the amount of the decedent’s gross wage which would have been available to support the plaintiffs prior to the decedent’s death. While a literal reading of the statute provides some support for the defendant’s construction of § 3108, a brief analysis of 1972 PA 294, of which § 3108 was a part, indicates the fallacy in defendant’s argument with respect to the deduction of taxes. Section 3107(b) of the no-fault act, also a part of 1972 PA 294, explicitly provides that 15 percent may be deducted from personal protection insurance benefits in certain situations where such benefits "are not taxable income”. Given the fact that both sections were contained in the same piece of legislation, it is reasonable to assume that had the Legislature intended, in § 3108, to limit benefits to after-tax income, it would have adopted language similar to that used in § 3107. Another panel of this Court reached the same conclusion in Goldsworthy v Royal Globe Ins Co, (Docket No. 77-3556, decided August 10, 1978 [unreported]), and traditional notions of statutory construction suggest that the courts not "read in” to one section of a statute that which the Legislature expressly provided in another section of the same statute. See 2A Sutherland, Statutory Construction (4th ed), § 46.05, p 56. We hold, then, that the Legislature did not intend that benefits received under § 3108 be reduced by the amount the decedent would have paid in taxes.

The legislative history of § 3108 does indicate, however, that its drafters contemplated the reduction of benefits by an amount equal to those sums which would have been diverted to the decedent’s personal consumption. An earlier draft of this section defined economic loss as the decedent’s contributions, "less expense of the survivors avoided by reason of decedent’s death”. 5 Michigan House Journal, p 4118 (1972). This clause was eventually deleted and the language upon which the defendant bases its argument was apparently substituted for it.

The contention that § 3108, as finally adopted, contemplated the reduction of benefits by the amount of expenses saved by reason of the decedent’s death is buttressed by yet another comparison with § 3107. Section 3107(b) provides that an injured person is entitled to personal protection insurance benefits for "loss of income”. That the drafters did not employ similar language in § 3108 reinforces the argument that "contributions * * * that dependents of the deceased * * * would have received for support” may have intended to denote an amount less than the decedent’s entire gross income.

We hold that the trial court’s only error was in failing to reduce the plaintiffs’ benefits by the amount of expenses avoided by reason of the decedent’s death. We note that the plaintiffs stipulated to the 22 percent figure proposed by the defendant only for the purpose of their motion for partial summary judgment. We therefore remand this matter to the circuit court for determination of the proper amount, if any, to be deducted from the benefits to be received by the plaintiffs. We take this opportunity to remind the lower court that the plaintiffs will receive survivors’ benefits for no longer than three years, and to suggest that the parties consider the potential applicability of the "possible expense” portion of § 3108 to the instant circumstances.

Affirmed, except as to that part remanded in accordance with this opinion. No costs, a public question being involved.

Beasley, P.J., concurred.

G. R. Cook, J.

(concurring in part; dissenting in part). I agree that benefits received by plaintiffs pursuant to MCL 500.3108; MSA 24.13108 are not to be reduced by the amount the decedent would have paid in taxes. I further agree that plaintiffs’ benefits under § 3108 should be reduced by the amount of expenses avoided by reason of the decedent’s death.

However, I respectfully dissent from the majority holding that MCL 500.3109(1); MSA 24.13109(1) is unconstitutional. I express my agreement with those panels of this Court which have upheld the validity of § 3109(1). Greene v State Farm Mutual Automobile Ins Co, 83 Mich App 505; 268 NW2d 703 (1978), Smart v Citizens Mutual Ins Co, 83 Mich App 30; 268 NW2d 273 (1978).

Amendatory Order

On April 25, 1979, the following amendatory order was entered by the Court:

"In this cause, a motion for leave to file delayed application for hearing and delayed application for rehearing have been filed by plaintiffs-appellees, and no answer in opposition thereto having been filed, and due consideration thereof having been had by the Court,

"It is ordered that the motion for leave to file delayed application for rehearing be, and the same hereby is granted.

"It is further ordered that the delayed application for rehearing be, and the same hereby is denied.

"It is further ordered, on the Court’s own motion, that the Court’s opinion in the within case, released January 17, 1979, to the extent that our holding held MCL 500.3109(1); MSA 24.13109(1) unconstitutional and disallowed the reduction of plaintiffs’ survivors’ benefits by the amount of social security benefits received, be and the same hereby is reversed on the basis of O’Donnell v State Farm Insurance, 404 Mich 524; 273 NW2d 829 (1979).

s/ William R. Beasley Presiding Judge”

        Goldsworthy v Royal Globe Ins Co, supra.

      See amendatory order following opinion of G. R. Cook, J.—reporter.


author: G. R. Cook, J.

text:
    IN THE MATTER OF LINDA LOU GRIFFIN
    Docket Nos. 78-2035, 78-2072, 78-2073, 78-2965, 78-2966.
    Submitted November 2, 1978, at Grand Rapids.
    Decided January 17, 1979.
    The parental rights concerning Linda Lou Griffin were terminated by the Grand Traverse County Probate Court. Subsequently, the court committed Linda Lou to the Department of Social Services "for purchase of service to” a private agency for the purpose of adoption or other placement. The child was placed by the DSS, through the Michigan Children’s Institute, a public agency, in the foster home of David E. and Coraline C. Lardie in Traverse City. Gregory and Susan Wehr of Alpena petitioned for adoption of Linda Lou in the Alpena County Probate Court, and a consent to the adoption was filed by the director of the Children’s Institute. The Grand Traverse County Probate Court then issued an order purporting to vacate its earlier commitment order to the Department of Social Services and committing the child to a private agency. It ordered custody to remain with the Lardies until the agency completed adoption proceedings. The Wehrs, having been licensed as a foster home, subsequently visited Linda Lou, and arranged to have her transported to their home in Alpena. They filed a complaint in Alpena Circuit Court seeking a restraining order to prevent the child from being removed from their home. The restraining order was granted, Joseph P. Swallow, J., and the Wehrs were instructed to pursue the adoption proceeding in probate court in order to determine probate court jurisdiction. The Alpena County Probate Court, Richard E. Meden, J., ordered that jurisdiction over the child was in the Grand Traverse County Probate Court. This order was appealed by the DSS, by the Wehrs, and by the appointed counsel for the child. The Lardies filed a petition for adoption in the Grand Traverse County Probate Court, and their adoption was immediately ordered, Kenneth G. Mackness, J. At a further hearing the Alpena Circuit Court ordered temporary custody to remain with the Wehrs until final adjudication of the jurisdiction controversy. This order was appealed from by the Grand Traverse County Probate Judge, who was a party in the Alpena Circuit Court proceedings, and by the Lardies. The Court of Appeals consolidated the appeals for hearing and decision. Held:

      References for Points in Headnotes

       20 Am Jur 2d, Courts § 104,

       20 Am Jur 2d, Courts §§ 128,138.

      The order of the Grand Traverse County Probate Court committing the child to the Department of Social Services was irrevocable and divested that court of jurisdiction. That court’s later order committing the child to the private agency, and the order of adoption, were, therefore, without effect. Jurisdiction was thereafter properly assumed by the Alpena County Probate Court when the Wehrs’ petition for adoption was filed therein. Jurisdiction remains in the Alpena County Probate Court.
    The Alpena County Probate Court is reversed and the case remanded to that court for consideration of the Wehrs’ petition. Custody is to remain with the Wehrs pending issuance of an adoption order.
    1. Courts — Probate Courts — Jurisdiction — Infants.
    Probate court jurisdiction over children is not inherent but is based upon constitutional and statutory provisions.
    2. Infants — Courts — Probate Courts — Jurisdiction — Commitment of Minor — Private Agency — Public Agency — Statutes.
    A probate court’s commitment of a child to a private or incorporated institution or agency does not divest the court of jurisdiction over the child; however, commitment of the child to the Department of Social Services, a public agency, is irrevocable and the jurisdiction of the probate court becomes divested (MCL 712A.5, 712A.18[d], 712A.18[e]; MSA 27.3178[598.5], 27.3178[598.18][d], 27.3178[598.18][e]).
    3. Infants — Courts — Probate Courts — Commitment of Minor — Conditional Commitment — Statutes.
    A probate court may commit a minor to the Department of Social Services conditionally only as provided by statute; a commitment for the purpose of purchasing services from a private agency is not a valid condition under the statute, and where the condition is not a valid one, the commitment is not a conditional commitment (MCL 400.203; MSA 25.383).
    4. Courts — Probate Courts — Jurisdiction — Statutes.
    A statute which provides that where a case is originally within the jurisdiction of the probate courts of two or more counties the court in which proceedings are first commenced shall retain jurisdiction does not apply to a case in which one probate court had jurisdiction which was properly exercised and divested before a proceeding was commenced in a second probate court (MCL 701.22; MSA 27.3178[22]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Janis Meija and Robert N. Rosenberg, Assistants Attorney General, for the Department of Social Services.

      Jason, Kowalski, Pugh & Poch, for Gregory and Susan Wehr.

      Raven & Sterling, P.C., guardian ad litem for Linda Lou Griffin (Grand Traverse Probate Court) and for David E. and Coraline C. Lardie.

      Williams, Coulter, Cunningham, Davison & Reed, for the Grand Traverse County Probate Judge.

      Douglas K. Wenzel, guardian ad litem for Linda Lou Griffin (Alpena Circuit Court).
    Before: Beasley, P.J., and D. E. Holbrook and G. R. Cook, JJ.

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

   G. R. Cook, J.

The essential question presented for resolution in this case is whether the Grand Traverse County Probate Court or the Alpena County Probate Court has proper jurisdiction over Linda Lou Griffin, born February 21, 1975, and thus constitutes the proper forum to adjudicate adoption proceedings involving the child. Cases 78-2035, 78-2072 and 78-2073 concern appeals from the May 22, 1978, decision and order of the Alpena County Probate Court that only the Grand Traverse County Probate Court possessed adoptive jurisdiction over Linda Lou Griffin. By order of this Court on August 25, 1978, the appeals in these three cases were consolidated with appeals in Cases 78-2965 and 78-2966, both of which arise from a July 25, 1978, Alpena County Circuit Court order awarding temporary custody of Linda to Gregory and Susan Wehr, prospective adoptive parents of Linda, who reside in Alpena county.

The complex litigational history of these cases requires a detailed examination of their underlying facts. During the proceedings in Alpena County Probate Court to determine whether it or the Grand Traverse County Probate Court had jurisdiction over Linda, the parties stipulated as follows:

"1. That the parental rights concerning Linda Lou Griffin were terminated in Grand Traverse County by Order of the Probate Court on February 14, 1977, pursuant to * * * [MCL 712A.2(b); MSA 27.3178(598.2)(b)].
"2. That a Petition for Re-Hearing was filed in the Probate Court on April 5, 1977.
"3. That the matter was re-heard in the Probate Court on May 5, 1977.
"4. That a decision reaffirming its subsequent Order for Termination of Parental Rights was issued on September 6, 1977.
"5. That an Application for Delayed Leave to Appeal was filed on October 13, 1977.
"6. That said Application for Delayed Leave to Appeal was denied by the Circuit Court for the County of Grand Traverse on March 8, 1978.
"7. That the Probate Court for the County of Grand Traverse issued an Order committing Linda Lou Griffin to Child and Family Services on September 30, 1977.
"That said Order states in pertinent parts the following:
"'[THEREFORE IT IS ORDERED,] that [LINDA LOU GRIFFIN] is hereby committed to Child [&] Family Services of Michigan for the purpose of adoption or suitable placement, and said agency may make immediate plans for placement, there being no re-hearing or appeal time remaining.’
"8. That the Probate Court for the County of Grand Traverse issued an Order committing Linda Lou Griffin to The Department of Social Services for a purchase of service to Child and Family Services of Michigan on October 4, 1977. Said Order states in pertinent parts the following:
"'[THEREFORE IT IS ORDERED,] that [LINDA LOU GRIFFIN] is hereby committed to [t]he Department of Social Services for purchase of service to Child [&] Family Services of Michigan for the purpose of adoption or suitable placement.
"'[IT IS FURTHER ORDERED], that in all other respects the Order of September 30, 1977 is hereby reaffirmed and remains in full force and effect.’
"9. That the contract between The Department of Social Services and Child and Family Services of Michigan expired on February 23, 1978.
"10. That the Grand Traverse County Probate Court issued an Order vacating and setting aside its October 4, 1977 Order and further ordering that Linda Lou Griffin be committed to Child and Family Services of Michigan on April 3, 1978. Said Order states in pertinent parts the following:
" '[THEREFORE IT IS ORDERED,] that the Order of October 4, 1977 committing the captioned child to [t]he Department of Social Services is hereby vacated and set aside.
" '[IT IS FURTHER ORDERED], that the prior Order of September 30, 1977 [,] committing said juvenile to Child [&] Family Services of Michigan for adoption or suitable placement is hereby reinstated and said agency shall henceforth have full responsibility for the custody and placement of said child.
" '[IT IS FURTHER ORDERED], that said child shall remain in her present temporary foster home placement until the agency completes adoption arrangements or otherwise approves a move.’
"11. That The Department of Social Services—Alpena County arranged a pre-adoption visit for Gregory and Susan Wehr of Alpena County which was held on April 13th and 14th of 1978.
"12. That Gregory and Susan Wehr and Miss LaCrosse of the Alpena Department of Social Services caused Linda Lou Griffin to be transported from Grand Traverse County to Alpena County where she presently remains, on April 16, 1978.
"13. That Gregory and Susan Wehr were licensed as a foster home on the 1st day of April, 1978 by the Bureau of Regulatory Services, Department of Social Services.
"14. That a Petition for Adoption on behalf of Gregory and Susan Wehr was filed in the Probate Court for the County of Alpena on March 22, 1978 requesting the adoption of Linda Lou Griffin and sponsored by The Department of Social Services.
"15. Consent to adoption by Other Than Parents was signed by The Department of Social Services and filed March 29, 1978 by Richard Higley, Superintendent of Michigan Children’s Institute, State of Michigan, Department of Social Services.”

The Alpena County Circuit Court on April 28, 1978, issued a temporary restraining order forbidding removal of Linda from the Wehr’s residence. After noting that the probate courts of both Alpena and Grand Traverse counties had active files on the child, the Alpena County Circuit Court instructed the Wehrs to petition Alpena County Probate Court for immediate consideration of their adoption petition so that the question of probate court jurisdiction over Linda could be decided.

Pursuant to this directive, the parties appeared in Alpena County Probate Court on May 17, 1978. That court on May 22, 1978, entered its decision and order that the Grand Traverse County Probate Court had sole jurisdiction over Linda, stating in pertinent part:

"The three orders issued by the Grand Traverse Probate Court clearly indicate to this Court that the Court did not intend to release Linda Lou to any agency for adoption or [to] permanently * * * release the child from Its jurisdiction until at such time as each agency had fully complied with the terms of the commitment orders.
"The purpose of the commitment in the present case was "for purchase of service to Child and Family Services of Michigan for the purpose of adoption or suitable placement’. The commitment, therefore, was a qualified and restricted commitment to the Michigan Department of Social Services. * * *.
"In the present case, because the Order of commitment to the Michigan Department of Social Services was qualified and restricted to the purpose of purchasing services from the Child and Family Services of Michigan, it cannot be said that the qualified commitment to the Michigan Department of Social Services divests the Grand Traverse County Probate Court of its continuing jurisdiction to oversee the fulfillment of the conditions of the commitment.”

On June 1, 1978, the Grand Traverse County Probate Court issued an order confirming the adoption of Linda Lou Griffin by David E. and Coraline C. Lardie, residents of Grand Traverse county. However, the Alpena County Circuit Court on July 24, 1978, ordered temporary custody of Linda to remain with the Wehrs. The effect of this order was to stabilize Linda’s custodial environment pending this Court’s adjudication of the adoptive jurisdiction controversy.

Determination of which forum possesses adoptive jurisdiction over Linda Lou Griffin depends upon the proper interpretation of the three orders issued by the Grand Traverse County Probate Court on September 30, 1977, October 4, 1977, and April 3, 1978. The Alpena County Probate Court’s May 22, 1978, decision held that these orders resulted in a valid conditional commitment of Linda to the Michigan Department of Social Services (DSS), with continuing jurisdiction in the Grand Traverse probate court to revoke this commitment if the DSS did not fulfill the conditions of commitment to the probate court’s satisfaction. The opposing view, held by the DSS, is that the Grand Traverse probate court’s October 4, 1977, commitment of Linda to the DSS was irrevocable and divested the Grand Traverse probate court of any further jurisdiction in the matter. According to this view, subsequent DSS efforts to place Linda for adoption in Alpena county validly vested adoptive jurisdiction in the Alpena County Probate Court, and the latter erred reversibly by ruling otherwise.

We note initially that probate court jurisdiction over children is not inherent but is based upon constitutional and statutory provisions. Const 1963, art 6, § 15; Fritts v Krugh, 354 Mich 97, 112; 92 NW2d 604, 612 (1958). Particularly relevant to the instant dispute are the juvenile code, MCL 712A.1 et seq.; MSA 27.3178(598.1) et seq. and the act establishing the Michigan Children’s Institute, MCL 400.201 et seq.; MSA 25.381 et seq.

The Grand Traverse County Probate Court obtained jurisdiction over Linda when she was removed from her natural parents pursuant to MCL 712A.2(b)(l); MSA 27.3178(598.2)(b)(l). This jurisdiction would continue until she reached the maximum age of jurisdiction "unless released sooner by order of the court”. MCL 712A.2a(l); MSA 27.3178(598.2a)(l). Consequently, that court’s September 30, 1977, order committing Linda "to Child & Family Services of Michigan for the purpose of adoption or suitable placement” was valid. MCL 712A. 18(d); MSA 27.3178(598.18)(d). It is important to note that this commitment did not divest the. Grand Traverse probate court of jurisdiction over Linda, since MCL 712A.5; MSA 27.3178(598.5) provides that "[commitments to a private or incorporated institution or agency shall not divest the juvenile division of the probate court of jurisdiction unless the child is adopted in a manner provided by law”.

Because the Grand Traverse probate court retained jurisdiction over Linda subsequent to its September 30, 1977, order, that court, by its order of October 4, 1977, was able to modify the September 30 order and commit Linda "to the Department of Social Services for purchase of service to Child & Family Services of Michigan for the purpose of adoption or suitable placement”. This commitment was authorized by MCL 712A. 18(e); MSA 27.3178(598.18)(e). However, we hold that the order of October 4, 1977—unlike the order of September 30, 1977—constituted an irrevocable commitment of Linda to the DSS and divested the Grand Traverse probate court of any further jurisdiction over her. That court’s order of April 3, 1978, was therefore invalid.

Several considerations support our conclusion that the order of October 4, 1977, was irrevocable. First, as noted previously, MCL 712A.5; MSA 27.3178(598.5) specifically states that the probate court is not divested of jurisdiction when a child is committed "to a private or incorporated institution or agency * * *”. By contrast, there exists no similar statutory provision reserving jurisdiction in the probate court for commitments made to a public institution or agency.

Secondly, we note the difference in language between MCL 712A.18(d); MSA 27.3178(598.18)(d) and MCL 712A.18(e); MSA 27.3178(598.18)(e). The former allows the probate court to "[p]lace the child in or commit the child to a private institution or agency * * *”. (Emphasis supplied.) The latter authorizes the probate court only to ”[c]ommit the child to a public institution * * (Emphasis supplied.) Since the word "place” does not carry the connotations of finality and severance of authority inherent in the term "commit”, we conclude that the Legislature used these terms advisedly and intended a commitment under subsection (e) to be final and irrevocable. This argument receives support from the fact that the distinction between "place” and "commit” is maintained not only within subsection (e), but also throughout the other subsections of MCL 712A.18; MSA 27.3178(598.18).

The third argument suggesting irrevocability of the October 4th order derives from the fact that when the Grand Traverse probate court committed Linda to the DSS she was thereby placed in the Michigan Children’s Institute (MCI) pursuant to MCL 400.203(a); MSA 25.383(a). Although MCL 400.203(b); MSA 25.383(b) allows admission of a child to the MCI by "temporary commitment” for observation, the Legislature did not use the adjective "temporary” to limit commitment under subsection (a). Commitment under subsection (a) is therefore logically permanent in nature.

Finally, our analysis of this issue would not be complete without a brief discussion of two relevant opinions of the Michigan Attorney General. OAG, 1945-1946, No 3552, p 336 (May 23, 1945), presented the following question:

"When a child is committed to a public institution such as M.C.I. [Michigan Children’s Institute] under (e) of Section 18 of Act 54 P.A. 1944 by the Juvenile Court and such institution accepts the child, does the Court retain any further jurisdiction?”

In answering this question, the above-cited opinion referred to OAG, 1945-1946, No 3091, p 221 (February 7, 1945), which states at 222:

"A careful reading of section 5 of Act No. 220, Public Acts of 1935, and sections 7 and 9 of the act as amended by Act No. 8, Public Acts of 1944 Extra Session, will, in our opinion, clearly show that (1) children placed in the Michigan Children’s Institute become the wards of the State; (2) are under the supervision and control of the Michigan Juvenile Institute Commission; (3) which has the power and duty of maintenance, health, instruction and training of the children, and placing and supervising them in homes, without further order from the court committing the child.
"It is therefore our opinion that a child committed by the probate court to the Michigan Children’s Institute is received by said institute subject to the provisions of Act No. 220, Public Acts of 1935 (as amended by Act No. 8, Public Acts of 1944 Extra Session), and is subject to the provisions of said act in each individual case, depending upon the purpose for which the child was committed.”

Although the opinion does not specifically state that the probate court loses jurisdiction upon commitment of a child to a public institution pursuant to MCL 712A. 18(e); MSA 27.3178(598.18)(e), it does note that the MCI may place the committed child in a home without a further court order. Furthermore, MCL 400.209; MSA 25.389 authorizes the superintendent of the MCI "to consent to the adoption * * * of any child who may have been committed to said institute, pursuant to the laws for the adoption * * * of minors”. Since valid consent to adoption can only be given "[b]y the duly authorized representative of the department or of a child placing agency to whom the child has been permanently committed by an order of the juvenile division of the probate court”, MCL 710.43(l)(b); MSA 27.3178(555.43)(l)(b), it follows that commitment of a child pursuant to MCL 712A.18(e); MSA 27.3178(598.18)(e), and reception of that child into the MCI by virtue of this commitment compels the conclusion that the child’s commitment must be permanent. Otherwise the MCI, through the DSS, would be unable validly to consent to subsequent adoption of the child as provided by statute. Therefore, the October 4, 1977, order of the Grand Traverse County Probate Court was of necessity a permanent commitment.

We do not agree that the final clause of the above-quoted opinion, "depending upon the purpose for which the child was committed”, envisions power in a probate court to make a conditional commitment to the DSS. This clause is more properly interpreted as referring to the different types of commitment found in MCL 400.203; MSA 25.383. Because Linda Lou Griffin was admitted to the MCI pursuant to subsection (a)(1) of the statute, other subsections of the same statute dealing with conditional commitment to the MCI are inapplicable to her case. Furthermore, because a probate court may condition a commitment to the DSS only as provided by MCL 400.203; MSA 25.383, and since the condition ostensibly imposed by the Grand Traverse probate court’s October 4, 1977, order is not recognized as a valid condition under this statute, the condition which the probate court attempted to impose is void.

Certain of the parties cite MCL 701.22; MSA 27.3178(22) as dispositive of the issue presented. That statute provides as follows:

"When a case shall be originally within the jurisdiction of the probate court of 2 or more counties, the court which shall first take cognizance thereof by the commencement of proceedings, shall retain the same throughout.”

This statute is inapplicable for two reasons. First, only the Grand Traverse probate court originally had jurisdiction over Linda. It properly exercised this jurisdiction in the neglect proceedings. The Alpena County Probate Court had no jurisdiction at that time.

Secondly, at the time the Wehrs filed an adoption petition with the Alpena probate court, the Grand Traverse probate court no longer had jurisdiction over the child because it had divested itself of jurisdiction by virtue of its October 4, 1977, order. There was therefore no statutory impediment to the Wehr’s filing of an adoption petition in Alpena county.

Our disposition of the first issue on appeal obviates the need for any extended discussion of the Alpena County Circuit Court’s June 22, 1978, order awarding temporary custody of Linda to Gregory and Susan Wehr. The Alpena Circuit court should not be criticized for attempting to stabilize the custodial environment of Linda Lou Griffin pending resolution of the complex jurisdictional dispute on appeal. We need not decide whether the circuit court’s actions were technically imperfect.

We reverse the May 22, 1978, order of the Alpena County Probate Court and remand this case to that court for its consideration of the Wehrs’ petition for adoption of Linda Lou Griffin. This remand is without prejudice to the right of David E. and Coraline C. Lardie to file in that court a petition for the adoption of Linda. The Alpena probate court shall expeditiously consider the petition or petitions filed and shall decide them based upon the best interests of Linda Lou Griffin. Pursuant to our power under GCR 1963, 820.1(7), we order that temporary custody of Linda Lou Griffin be continued with the Wehrs until the Alpena County Probate Court has issued an order confirming Linda Lou’s adoption.

Reversed and remanded for further proceedings not inconsistent with this opinion.


author: J. H. Gillis, J.

text:
    WILLIAMS v MARTIMUCCI
    Docket No. 78-2266.
    Submitted December 11, 1978, at Lansing.
    Decided January 17, 1979.
    Ricky R. Williams, an inmate at the State Prison of Southern Michigan, made a written request for copies of documents in his prison file under the Freedom of Information Act. A waiver of costs was requested with an affidavit of indigency attached. Michael Martimucci, supervisor of prisoners’ records, checked the institutional indigency list for the month and found that Williams’ name was not on it. He allowed Williams to review the records, but refused to tender copies because Williams did not pay the $3 fee for the cost of processing the request. Williams brought an action in Jackson Circuit Court seeking an order directing Martimucci to provide copies of the requested records, assessment of costs and $500 in punitive damages for willful, arbitrary and capricious violation of the freedom of information statute. Summary judgment for defendant, Charles J. Falahee, J. The court held that defendant had not acted in an arbitrary or capricious manner in refusing to provide copies of the requested prison records. Plaintiff appeals. Held:

    Arbitrary or capricious refusal or delay in disclosing or providing copies of a public record by a public body may result in an award of actual or additional compensatory damages and punitive damages in the amount of $500 to the petitioner for violation of the Freedom of Information Act. Where a prisoner’s name did not appear on the institutional indigency list for the month, which would lead a supervisor of prisoner records to believe that an inmate was not entitled to a waiver of fees for copies, refusal to comply with his request did not amount to willful, arbitrary or capricious conduct in violation of the statute.
    Affirmed.
    References for Points in Headnotes

       66 Am Jur 2d, Records and Recording Laws §§ 43, 45.

       66 Am Jur 2d, Records and Recording § 14.

      1. Administrative Law — Freedom op Information Act — Disclosure of Information — Public Records — Damages — Statutes.
    The Michigan Freedom of Information Act requires a circuit court, if it finds a public body has arbitrarily and capriciously violated the act by refusal or delay in disclosing or providing copies of a public record, to award in addition to actual or compensatory damages, punitive damages in the amount of $500 to the person seeking the right to inspect or receive a copy of a public record (MCL 15.240[5]; MSA 4.1801[10]).
    2. Administrative Law — Freedom of Information Act — Disclosure of Information — Prison Records — Indigency Lists — Waiver of Fees.
    A supervisor of prisoners’ records did not act without reason, or in an arbitrary, capricious or whimsical manner in refusing to tender copies of materials properly requested by an inmate under the Freedom of Information Act where the prisoner’s name did not appear on the institutional indigency list, which led the supervisor to believe that the inmate was not entitled to copies of the requested records because he had not tendered the fees and had not shown that he was entitled to a waiver of fees.
    Ricky R. Williams, in propria persona.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Mark E. Blumer, Assistant Attorney General, for defendant.
    Before: R. B. Burns, P.J., and J. H. Gillis and V. J. Brennan, JJ.
   J. H. Gillis, J.

This action comes on appeal by right from an order granting defendant’s motion for summary judgment. There is no dispute as to the facts.

Plaintiff is an inmate at the State Prison of Southern Michigan. Defendant is the manager of general office services at the prison. His responsibilities include supervision of the prisoners’ records.

Plaintiff made a written request for copies of six documents in his file. A waiver of costs was requested and an affidavit of indigency attached. Both the record request and the fee waiver were made under the Freedom of Information Act. MCL 15.231 et seq.; MSA 4.1801(1) et seq.

Defendant checked the institutional indigency list for the month and found that Williams’ name was not on it. He, therefore, refused to tender copies of the materials requested because plaintiff did not pay the $3 fee for the cost of processing the request. Defendant did allow plaintiff to review the records.

Plaintiff brought an action in Jackson County Circuit Court seeking an order directing defendant to provide copies of the requested records, assessment of costs against defendant and $500 punitive damages for willful, arbitrary and capricious violation of the Freedom of Information Act as allowed under § 10(5) of the act.

Defendant failed to answer and a default was entered against him. He subsequently sought to have the default set aside and made a motion for summary judgment pursuant to GCR 1963, 117.2(1), failure to state a claim upon which relief could be granted. Defendant also attached copies of the requested materials. Plaintiff responded and requested summary judgment in his favor.

The circuit court found that the facts alleged did not support plaintiff’s claim that defendant acted in an arbitrary and capricious manner. Summary judgment in favor of defendant was entered. On appeal plaintiff claims the trial court erred in finding defendant’s acts were not arbitrary and capricious.

Section 10(5) of the Freedom of Information Act provides as follows:

"In an action commenced pursuant to this section, if the circuit court finds that the public body has arbitrarily and capriciously violated this act by refusal or delay in disclosing or providing copies of a public record, the court shall, in addition to any actual or compensatory damages, award punitive damages in the amount of $500.00 to the person seeking the right to inspect or receive a copy of a public record. The damages shall not be assessed against an individual, but shall be assessed against the next succeeding public body, not an individual, pursuant to whose public function the public record was kept or maintained.” MCL 15.240(5); MSA 4.1801(10)(5).

There is no case law dealing with the terms "arbitrarily” and "capriciously” as used in this statute. However, in Bundo v Walled Lake, 395 Mich 679, 703, fn 17; 238 NW2d 154 (1976), the Supreme Court stated that the terms have generally accepted meanings:

"The words 'arbitrary’ and 'capricious’ have generally accepted meanings. The United States Supreme Court has defined the terms as follows:
"Arbitrary is: ' "[W]ithout adequate determining principle * * * Fixed or arrived at through an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances, or significance, * * * decisive but unreasoned.” ’
"Capricious is: ' "[A]pt to change suddenly; freakish; whimsical; humorsome.” ’
United States v Carmack, 329 US 230, 243; 67 S Ct 252; 91 L Ed 209 (1946).”

While defendant’s actions in going beyond the affidavit of indigency were not authorized by FQIA we agree with the trial court that defendant did not act arbitrarily or capriciously. The fact that plaintiffs name did not appear on the prison’s indigency list led defendant to believe that Williams was not entitled to a waiver of fees. Though mistaken, defendant did not act without reason. In addition, plaintiff was given the opportunity to review the requested materials. It is, therefore, evident that defendant’s decision was not arrived at without consideration of principles or circumstances nor was it "whimsical”.

While defendant’s motion was based upon GCR 1963, 117.2(1), the court actually made its determination upon the pleadings and an affidavit filed by defendant. Summary judgment pursuant to GCR 1963, 117.2(3) would seem to be the proper basis. However, no error in this regard has been raised on appeal and neither party has been misled. See Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), Saveski v California Federal Savings & Loan Ass’n 63 Mich App 747, 749, fn 1; 235 NW2d 34 (1975), Bashara, The Elusive Summary Judgment Rule: Sifting Through the Maze, 1976 Det Col L Rev 397, 419-421.

Plaintiff also argues that the trial court erroneously awarded costs to defendant. This argument has no basis since the lower court order did not award costs to defendant.

Affirmed. No costs, a public question being involved.

      MCL 15.234(1); MSA 4.1801(4)(1) provides in part as follows:
      "A copy of a public record shall be furnished without charge for the first $20.00 of the fee for each request, to an individual who submits an affidavit stating that the individual is then receiving public assistance or, if not receiving public assistance, stating facts showing inability to pay the cost because of indigency.”