author: Danhof, C.J.

text:
    PEOPLE v LONGUEMIRE
    Docket No. 77-1156.
    Submitted April 11, 1978, at Lansing.
    Decided December 5, 1978.
    John E. Longuemire, Jr., was charged with perjury, based upon his testimony in a prior trial in which he was convicted of breaking and entering and larceny. Testifying in that former trial on his own behalf, he had denied that he had committed any breaking and entering. Longuemire moved to quash the information, and the Bay Circuit Court, Leon J. Dardas, J., granted the motion, holding that the perjury prosecution constituted double jeopardy. The people appeal. Held:

    1. The defendant was not subjected to double jeopardy because the alleged perjury and the breaking and entering were clearly separate transactions.
    2. A distinction must be drawn between perjury as to basic adjudicative facts and perjury as to issues of ultimate fact or law mixed with fact. Where the defendant’s false testimony was in regard to ultimate fact questions such as a denial of guilt of the crime charged or of a legal element of the crime, a prosecution for perjury is not permissible because the possibility of such a prosecution discourages the defendant from exercising his right to testify, without substantially benefitting the administration of justice.
    Affirmed.
    1. Witnesses — Criminal Law — Testimony by Defendant — Perjury.
    A criminal defendant taking the stand on his own behalf does not have a license to lie, but he must be protected from threats of perjury prosecutions which unnecessarily chill his right to testify.

      References for Points in Headnotes

       60 Am Jur 2d, Perjury § 50.
    75 Am Jur 2d, Trial § 305.
    81 Am Jur 2d, Witnesses § 523 et seq.

       60 Am Jur 2d, Perjury §§ 8-11.
    Determination of materiality of allegedly perjurious testimony in prosecution under 18 USCS §§ 1621, 1622, 22 ALR FED 379.
    Incomplete, misleading, or unresponsive but literally true statement as perjury. 69 ALR3d 993.

      2. Perjury — Criminal Law — Adjudicative Facts — Ultimate Facts —Right to Testify.
    A distinction must be drawn between perjury as to basic adjudicative facts and perjury as to issues of ultimate fact or law mixed with fact in determining whether a perjury charge unnecessarily discourages a defendant from exercising his right to testify.
    3. Perjury — Criminal Law — Ultimate Facts — Right to Testify.
    A prosecution for perjury based upon a criminal defendant’s false testimony regarding ultimate fact questions, such as statements as to the noncommission of the crime charged or a legal element of the crime, is constitutionally impermissible because the possibility of such a prosecution discourages the defendant from exercising his right to testify without substantially bene-fitting the administration of justice.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Eugene C. Penzien, Prosecuting Attorney, and Peter F. Dahm, Assistant Prosecuting Attorney, for the people.

      Terence R. Flanagan, Assistant State Appellate Defender, for defendant on appeal.
    Before: Danhof, C.J., and Bronson and Cynar, JJ.
   Danhof, C.J.

Defendant was charged with perjury, see MCL 750.422; MSA 28.664, on the basis of his testimony at a prior trial, in which he was defending against charges of breaking and entering, larceny over $100 and larceny in a building. On February 25, 1976, defendant was found guilty of these larceny and burglary charges. The perjury information was in three counts. Count one alleged perjury by defendant’s testimony as follows: "I didn’t commit that B & E. I didn’t. I ain’t never broke into people’s houses.” The second charged perjury by answering "no” to a question whether defendant had committed a breaking and entering in the neighborhood of a witness, Mrs. Smith. The last count complained of knowing falsification by the statement: "I didn’t commit no B & E. I’m innocent of that. If I ever did something wrong, I didn’t do that. I didn’t commit it.”

The trial court granted defendant’s motion to quash the information relying "solely on the authority of People v Taylor, 34 Mich App 84 [190 NW2d 720] (1971)”, and holding the perjury prosecution to constitute double jeopardy.

We disagree that the prosecution of this charge places defendant in double jeopardy for the reason that the alleged perjury and breaking and entering were clearly separate transactions. People v White, 390 Mich 245; 212 NW2d 222 (1973). However, we affirm the quashing of the information for the reasons stated below.

Any threat of prosecution for perjury based on testimony by the defendant in a criminal proceeding raises a potential conflict of interest. On the one hand, the fear of collateral repercussions from testifying may discourage an accused from taking the stand on his own behalf. Scott v United States, 135 US App DC 377; 419 F2d 264 (1969). A defendant’s right to testify on his own behalf is of constitutional magnitude, Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975), and is expressly safeguarded by our own court rules, GCR 1963, 785.7 (1) (g) (x). On the other hand, excusing defendants from liability for perjury might encourage false testimony and thereby diminish the integrity of our factfinding system. In a related context, the United States Supreme Court recently held that a criminal defendant has no protected right to commit perjury. United States v Grayson, 438 US 41; 98 S Ct 2610; 57 L Ed 2d 582 (1978).

As a rule of law to resolve this conflict, we hold that although a criminal defendant taking the stand on his own behalf does not have a license to lie, United States v Grayson, supra, he must be protected from threats of perjury prosecutions that unnecessarily chill his right to testify. Cf. United States v Jackson, 390 US 570; 88 S Ct 1209; 20 L Ed 2d 138 (1968).

In determining whether a perjury information unnecessarily discourages a defendant from exercising his right to testify, a careful distinction must be drawn between perjury as to basic adjudicative facts and perjury as to issues of ultimate fact or law mixed with fact. Basic adjudicative facts pertain to who did what, where, when, how and with what motive or intent. Davis, Administrative Law, § 7.03, p 160. They may be proved for both substantive and impeachment purposes. Ultimate fact questions concern the legal definitions and effects ascribed to the basic facts or combinations of basic facts as found. At common law, it is doubtful that false testimony as to the latter can ever be a basis for a perjury charge, since a court would most likely construe it as mere opinion or as a conclusion of law beyond the realm of common knowledge. See 18 Mich Law & Practice, Perjury, § 1, p 458. But see Hoch v People, 3 Mich 552 (1855); cf. Guilty Plea Cases, supra, (for purposes of informing defendant of the nature of the charges against him, it can be expected that most persons will understand the generic term "breaking and entering”). To the extent such a charge is valid at common law, it is constitutionally impermissible as it discourages defendants from exercising their rights to testify, without substantially benefiting the administration of justice. The chance that a defendant will lie about the ultimate fact at issue in his case does not significantly threaten the integrity of the fact-finding process. Knowing the primary historical events, the fact-finder can judge guilt or innocence on its own. The discouraging effect of potential perjury liability in such a situation, while not overwhelming, is "unnecessary and therefore excessive”. Cf. United States v Jackson, supra, 582.

United States v Grayson, supra, is not inconsistent with this approach. That case dealt with the validity of sentence enhancement for perjury rather than separate and subsequent liability for perjury. Hence, the decision implicates a different policy choice; rather than seeking to ensure the integrity of the fact-finding process, the Grayson Court was concerned with the relevancy of a defendant’s mendacity to sentencing. Moreover, the alleged perjury in Grayson went to basic adjudicative facts rather than ultimate questions of fact and law. Grayson, while on trial for unlawful escape from prison, testified that he left out of fear, that another inmate had just threatened him with a large stick with a nail protruding through it, and that he had previously mentioned threats from other inmates to a prison official. He also swore that after he crossed the prison fence he discarded his prison jacket and shirt but not his trousers. This testimony was relevant to defendant’s credibility and to the issue of whether defendant’s escape was planned or was a spontaneous product of duress. If Grayson’s testimony was false and had been believed, it could have seriously undermined the fact-finder’s conclusions on those issues.

Judged by the foregoing tests, counts two and three of the information challenged in this case were properly quashed. The breaking and entering referred to in the second count was the breaking and entering with which defendant had been charged. The statement repeated in the third count was defendant’s answer to his attorney’s question whether he had committed that offense. Both counts are justly characterized as charges for opposing the state on the ultimate issue of defendant’s guilt.

Count one presents a closer question. The statement related in that paragraph of the information had been made in response to an inquiry by defendant’s attorney whether defendant had gone to a home to check it out to see if anyone else was there in order to commit the breaking and entering with which he was charged. The last sentence of defendant’s answer — "I ain’t never broke into people’s houses” — arguably contains testimony as to basic adjudicative fact. Nonetheless, because the major thrust of the statement was to deny an essential element of the crime and because the arguably unprotected testimony was incidental, not in response to a specific question, we construe the answer in toto and deny perjury liability on the basis of any of the assertions therein.

By our resolution of these issues, we have obviated the need to discuss other errors claimed by defendant.

Affirmed.

       The statute reads:
      "Any person who, being lawfully required to depose the truth in any proceeding in a court of justice, shall commit perjury shall be guilty of a felony, punishable, if such perjury was committed on the trial of an indictment for a capital crime, by imprisonment in the state prison for life, or any term of years, and if committed in any other case, by imprisonment in the state prison for not more than 15 years.”

       As a habitual offender, he was sentenced to serve concurrent terms of 5 to 22-1/2 years, 3 to 7-1/2 years and 2-1/2 to 6 years imprisonment. However, in People v Longuemire, 77 Mich App 17, 24; 257 NW2d 273 (1977), the Court, sua sponte, vacated defendant’s conviction and sentence for larceny over $100 since conviction for that crime and for larceny in a building violated double jeopardy on the facts of the case.

       Ultimate facts encompass statements as to noncommission of the crime charged or a legal element of the crime. Thus, statements such as "I didn’t bribe Mr. X” or "I didn’t break into that house” are statements of ultimate facts which cannot be used as a basis for perjury. Conversely statements which indicate actual details of the crime charged such as "I didn’t give Mr. X $50,000” or "I didn’t force the door open” are adjudicative facts which can form the basis for a perjury charge.

       The risk of conviction for misstatements of ultimate fact may be slight. Not only are such statements likely to be construed as opinion, but also, given the mixture of law and fact inherent in such conclusions, the people would bear a heavy burden of proving the defendant knew the statement was false when he made it.


source: Caselaw Access Project

author: D. C. Riley, P.J. Judge Hensick

license: Public Domain

text:
    PEOPLE v WELLS
    Docket No. 77-1772.
    Submitted June 19, 1978, at Detroit.
    Decided December 5, 1978.
    Nathan Wells was charged with first-degree murder. Part of the evidence presented at trial was the testimony of a police officer concerning a confession which the defendant had made to the officer. Pursuant to a jury verdict, the defendant was convicted of second-degree murder, Recorder’s Court of Detroit, Harold Hood, J. Defendant appeals, alleging that the trial court erred by denying the defendant’s motion for a directed verdict of acquittal on the first-degree murder charge, and by instructing the jury on both first- and second-degree murder. Held:

    1. The corpus delicti of an offense must be established by evidence independent of the confession of the accused. In this case, although there was a strong circumstantial inference that the defendant caused the victim’s death, there was no evidence, other than the confession, by which the jury could reasonably have inferred the existence of premeditation. Therefore, the trial court’s denial of defendant’s motion for a directed verdict of acquittal of first-degree murder was error.
    2. Because the jury was improperly instructed on first-degree murder, thereby creating the possibility that the jury invalidly reached a compromise verdict, the case must be remanded for a new trial.

      References for Points in Headnotes

       30 Am Jur 2d, Evidence §§ 1136-1138, 1142, 1173.
    40 Am Jur 2d, Homicide §§ 284, 285.
    Corroboration of extra judicial confession or admission. 45 ALR2d 1316.

       30 Am Jur 2d, Evidence §§ 1140-1142.
    40 Am Jur 2d, Homicide §§ 284, 385.
    Corroboration of extra judicial confession or admission. 45 ALR2d 1316.

       29 Am Jur 2d, Criminal Law §§ 266, 363, 364.
    75 Am Jur 2d, Trial § 424.
    40 Am Jur 2d, Homicide §§ 439, 472.
    Presumption of deliberation or premeditation from the circumstances attending the killing. 96 ALR2d 1435.

       40 Am Jur 2d, Homicide §§ 280, 282, 426, 438, 439, 472, 498 et seq.
    75 Am Jur 2d, Trial §§ 548-558, 1139.
    Presumption of deliberation or premeditation from the circumstances attending the killing. 96 ALR2d 1435.

       75 Am Jur 2d, Trial §§ 548-558, 1139.

      Reversed and remanded.
    1. Criminal Law — Corpus Delicti — Confession of Accused.
    The corpus delicti of an offense must be established by evidence independent of the confession of the accused.
    2. Criminal Law — Corpus Delicti — Evidence—Elements of Offense.
    The corpus delicti of an offense is not established until the people have introduced evidence from which the trier of fact may reasonably find that acts constituting all the essential elements of the offense have been committed and that someone’s criminality was responsible for the commission of those acts.
    3. Criminal Law — Premeditation—Requirements.
    Premeditation requires a showing that the perpetrator of a crime had sufficient time to think about his actions before the commission of the crime and to evaluate the consequences and alternatives.
    4. Criminal Law — Premeditation—Inferences—Circumstantial Evidence.
    Premeditation can be established from reasonable inferences drawn entirely from circumstantial evidence.
    5. Homicide — Criminal Law — Directed Verdict of Acquittal— First-Degree Murder — Premeditation.
    A trial court erred in denying a defendant’s motion for a directed verdict of acquittal of first-degree murder where, absent testimony regarding the defendant’s confession, there was no evidence by which the jury could reasonably have inferred the existence of premeditation.
    6. Criminal Law — Instructions to Jury — Prejudice—Compromise Verdict — Directed Verdict of Acquittal.
    There is always prejudice where a jury is permitted consideration of a charge unwarranted by the proofs because a defendant’s chance of acquittal on any valid charge is substantially decreased by the possibility of a compromise verdict; for this reason it is reversible error for a trial judge to refuse a directed verdict of acquittal on any charge where the prosecution has failed to present evidence from which the jury could find all elements of the crime charged.

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

      Bernstein, Rabinovitz & Weitzman, P.C., for defendant on appeal.
    Before: D. C. Riley, P.J., and M. F. Cavanagh and B. M. Hensick, JJ.

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

   D. C. Riley, P.J.

The present matter concerns a single issue; i.e., whether the prosecution’s case in chief established the corpus delicti of first-degree, premeditated murder absent the introduction of defendant’s confession.

Defendant Nathan Wells was charged with first-degree murder, contrary to MCL 750.316; MSA 28.548. Following a jury trial, he was convicted of second-degree murder, MCL 750.317; MSA 28.549, and sentenced to life imprisonment. For the purposes of the issue on appeal, the testimony presented at defendant’s trial will be set forth in some detail.

The victim’s husband testified that he and his wife were separated. On Friday, November 12, 1976, he called his wife’s apartment and spoke to defendant, who stated that the wife was not at home at that time. The following day the witness again called the apartment and this time did speak to his wife. The next evening the witness drove to his wife’s apartment, where he discovered her body in the bedroom. A second witness testified that he accompanied the victim’s husband to the apartment and corroborated the testimony concerning the discovery of the body.

The decedent’s mother testified that she, the victim’s grandmother, and defendant (who is this witness’s cousin) went to the apartment on November 12, 1976, to help the victim pack. The mother testified that when she and the grandmother left to go home the defendant remained at the apartment with the decedent. The grandmother (defendant’s aunt) testified to these same facts.

Several police officers testified as to the condition of the body and of the apartment, and as to the investigation of the scene. Several items of evidence were removed from the apartment and blood samples were taken. Subsequently, defendant’s fingerprint was found on a candlestick that had been removed from the apartment.

A doctor from the Wayne County Medical Examiner’s Office testified that the autopsy revealed that the decedent had sustained two stab wounds and multiple abrasions to the head and neck area. There was also evidence that the victim had been sexually assaulted.

A serologist from the police crime lab testified that traces of blood were found on three of four knives that were discovered soaking in a pan of water in decedent’s kitchen and that traces of hair matching defendant’s were found on a washcloth in the apartment.

A medical technologist testified that tests were performed on a sample of seminal fluid taken from the victim’s body and on a sample of defendant’s saliva, the results of which did not exclude defendant as a possible source of the seminal fluid.

Following these witnesses, the prosecution presented the testimony of a police officer who had taken a statement from defendant. In the statement defendant admitted choking the decedent and, believing her to be dead, having intercourse with her and then inflicting the stab wounds.

At the conclusion of the prosecution’s case, defendant moved for a directed verdict of acquittal of first-degree murder. The motion was denied and the court eventually instructed on both first- and second-degree murder.

It is a long-standing rule of law in Michigan that the corpus delicti of an offense must be established by evidence independent of the confession of the accused. People v Allen, 390 Mich 383; 212 NW2d 21 (1973), People v Kirby, 223 Mich 440; 194 NW 142 (1923), People v Lane, 49 Mich 340; 13 NW 622 (1882), People v Allen, 39 Mich App 483, 486 fn 2; 197 NW2d 874 (1972).

Prior to the Supreme Court’s decision in Allen, supra, the corpus delicti of murder was established by "proof of the dead body and evidence of an unnatural cause of death”. People v Allen, 39 Mich App at 487. See People v Jackzo, 206 Mich 183; 172 NW 557 (1919), People v Jackson, 1 Mich App 207; 135 NW2d 557 (1965). The majority opinion of this Court in Allen, supra, adhering to the traditional rule, held that the corpus delicti of felony murder did not require proof of the underlying felony independent of the defendant’s confession.

The Supreme Court in Allen, supra, reversed, adopting Judge (now Justice) Levin’s dissent in the Court of Appeals’ Allen decision. 390 Mich at 385-386. In his dissent, Judge Levin made a comprehensive argument that the corpus delicti of any offense requires proof on each of the essential elements of that offense:

"Whatever may be the correct etymological definition of the term ’corpus delicti,’ and, although there are quotations in Michigan cases from other authorities to the effect that the corpus delicti of an offense is established upon showing a specified injury and someone’s criminality as the source of the injury, the law in this state is clear that the corpus delicti of an offense is not established until the people have introduced evidence from which the trier of fact may reasonably find that acts constituting all the essential elements of the offense have been committed and that someone’s criminality was responsible for the commission of those acts.” (Footnote omitted.) 39 Mich App at 495-496.

Consistent with this argument, Judge Levin concluded that the corpus delicti of first-degree murder, including the element which distinguishes the charge from second-degree murder, must be established aliunde the confession:

"Just as the people must establish with evidence the essential element distinguishing second-degree murder from first-degree murder in order to convict an accused person of the aggravated offense, so, too, in order to prove the corpus delicti, that distinguishing element must be established by evidence independent of the accused person’s confession. Otherwise the policy underlying the rule requiring that all the elements of the offense be established independently of a confession— consistently enforced in many Michigan cases — would be eroded in the category of cases where the stakes are the highest, where the accused person has the most to lose and where one would think that the law would be the most solicitous of his rights.” (Footnote omitted.) 39 Mich App at 503-504.

Although we read the Allen rule set forth in Judge Levin’s dissent as applying to all criminal charges, one panel of this Court held that the decision was limited to felony murder, the specific charge in Allen. In People v Sparks, 53 Mich App 452; 220 NW2d 153 (1974), the Court stated:

"The requirement of independent proof is to assure that an accused not be convicted on the basis of his confession to a nonexistent crime. Proof of unnatural death provides that protection. People v Allen, supra [390 Mich 383; 212 NW2d 21 (1973)]. Defendant quotes this case and, while seeming to support defendant’s contentions, Allen is distinguishable. The decision there was only that the element of an underlying felony must be proved without defendant’s confession in a felony-murder case. Allen leaves intact the present body of corpus delicti law regarding other first-degree murder.” 53 Mich App at 459.

The Supreme Court denied Sparks’ application for leave to appeal, but worded the denial in such a manner as to cast doubt on the viability of the Sparks Court’s limitation of the Allen rule:

"On order of the Court, the application for leave to appeal is considered, and the same hereby is denied, because the appellant has failed to persuade the Court that the questions presented should be reviewed by this Court. In denying leave, this Court does not, wish to be understood as accepting the distinction between felony and premeditated murder in the application of the rule enunciated in People v Allen, 390 Mich 383; 212 NW2d 21 (1973), drawn by the Court of Appeals in deciding this case.” People v Sparks, 393 Mich 135; 224 NW2d 481 (1974).

We hold, given the Supreme Court’s position, that the Court of Appeals’ Sparks decision erroneously limited the Allen corpus delicti rule. The language of Judge Levin’s dissent was not confined solely to the felony element of felony-murder. In addition, the Sparks Court, while applying their distinction, nevertheless went on to hold that under the facts of that case premeditation could reasonably have been inferred absent the confession.

The most recent case from this Court also disagrees with the Sparks opinion. In People v Hawkins, 80 Mich App 481; 264 NW2d 33 (1978), it was held that the corpus delicti of first-degree premeditated murder requires a showing of premeditation independent of a confession. See also People v Juniel, 62 Mich App 529, 536 fn 3; 233 NW2d 635 (1975).

Applying the Allen corpus delicti rule to the case at bar, our task is to determine if the evidence presented at defendant’s trial, absent his confession, established the essential element of premeditation.

Premeditation requires a showing that the perpetrator had sufficient time to think about his actions before the commission of the crime and evaluate the consequences and alternatives. People v Vail, 393 Mich 460; 227 NW2d 535 (1975), People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971). Premeditation can be established from reasonable inferences drawn entirely from circumstantial evidence. People v Hoffmeister, 394 Mich 155; 229 NW2d 305 (1975), People v Jesse Smith, 81 Mich App 190; 265 NW2d 77 (1978).

While the testimony presented in the case at bar, absent the confession, created a strong circumstantial inference that defendant caused the victim’s death, we find lacking any evidence by which the jury could reasonably have inferred the existence of premeditation. See People v Hawkins, supra. Apart from the confession there was no evidence regarding the actual commission of the offense. There was no evidence of prior threats or ill feelings between defendant and the deceased, no evidence of any suspicious or inculpatory conduct by defendant, either before or after the crime, and no evidence that defendant arranged the circumstances or intentionally procured a weapon to effectuate the crime. See People v Jesse Smith, supra at 199-200.

The prosecution argues that the nature and number of the victim’s injuries is circumstantial evidence that defendant planned the crime. This precise argument has been rejected by the Supreme Court:

"Hoffmeister moved for a directed verdict, arguing that 'there is no evidence from any witness that [Hoff-meister] did form or did any act with premeditation’.
"The prosecutor' responded that 'the nature of the wounds, [and] the number of wounds’ inflicted on the deceased together with his 'several moments with’ her were sufficient facts from which the jury could reasonably infer premeditation and deliberation.
"The brutality of a killing does not itself justify an inference of premeditation and deliberation. 'The mere fact that the killing was attended by much violence or that a great many wounds were inflicted is not relevant [on the issue of premeditation and deliberation], as such a killing is just as likely (or perhaps more likely) to have been on impulse.’ ” (Citation omitted.) People v Hoffmeister, supra at 159.

Accordingly, we conclude that there was insufficient evidence presented to establish the required element of premeditation absent defendant’s confession. The trial court thus erred in denying defendant’s motion for a directed verdict on first-degree murder. People v Hoffmeister, supra. Even though defendant was eventually convicted of second-degree murder, a new trial is mandated since the jury was improperly instructed on first-degree murder, creating a possibility that the jury invalidly compromised their verdict. People v Vail, supra.

Reversed and remanded.

Judge Hensick

concurs in the above opinion only because of the wording of the Supreme Court’s denial of leave to appeal in People v Sparks, 393 Mich 135; 224 NW2d 481 (1974). He specifically approves the reasoning as set forth in the Court of Appeals decision in People v Sparks, 53 Mich App 452; 220 NW2d 153 (1974).

       This factual holding may have been the reason that the Supreme Court, although apparently in disagreement with the legal discussion, denied the application for leave. See People v Hawkins, 80 Mich App 481, 485 fn 2; 264 NW2d 33 (1978).

       "Thus, where a jury is permitted consideration of a charge unwarranted by the proofs there is always prejudice because a defendant’s chances of acquittal on any valid charge is substantially decreased by the possibility of a compromise verdict. For this reason it is reversible error for a trial judge to refuse a directed verdict of acquittal on any charge where the prosecution has failed to present evidence from which the jury could find all elements of the crime charged.” People v Vail, 393 Mich 460, 464; 227 NW2d 535 (1975).


author: D. E. Holbrook, J.

text:
    PEOPLE v JAMES
    Docket No. 77-1977.
    Submitted November 2, 1978, at Grand Rapids.
    Decided December 5, 1978.
    Defendant Earl James was convicted of breaking and entering with intent to commit larceny in Recorder’s Court of Detroit, Samuel H. Olsen, J. On the date set for trial defendant moved for a competency examination. The trial court arranged an immediate examination and set a time for a competency hearing at which a Recorder’s Court Clinic psychologist testified to having 13 years experience and a master’s degree in psychology. Defendant agreed that the psychologist’s qualifications were "acceptable”. The psychologist opined that defendant was competent to stand trial and the court so found. During final argument the prpsecutor read, without objection, the complainant’s preliminary examination testimony. Defendant appeals alleging several errors. Held:

    1. It was not reversible error for the court to rest a finding of competency upon the testimony of a qualified psychologist where the testimony was founded upon a properly conducted and supervised psychiatric examination.
    2. Failure to follow a statute or court rule respecting competency determination does not ipso facto entitle a defendant to a new trial; evidence substantiating incompetency-in-fact must establish that there was a violation of rights before a new trial will be ordered.
    References for Points in Headnotes

       31 Am Jur 2d, Expert and Opinion Evidence §§ 85-87.
    Testimony of examiners under statute providing for psychiatric examination of accused to determine mental condition. 32 ALR2d 480.
    Qualification of nonmedical psychologist to testify as to mental condition of competency. 78 ALR2d 919.
    Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition. 32 ALR2d 434.

       4 Am Jur 2d, Appeal and Error § 144. 5 Am Jur 2d, Appeal and Error § 782.

       5 Am Jur 2d, Appeal and Error §§ 776, 778, 797, 798.

      3. The error in the prosecutor’s closing argument was harmless beyond a reasonable doubt.
    Affirmed.
    1. Witnesses — Criminal Law — Expert Testimony — Competency to Stand Trial — Psychologists.
    It was not reversible error for the court to rest a finding of competency to stand trial upon the testimony of a qualified psychologist where the testimony was founded upon a properly conducted and supervised psychiatric examination.
    2. Criminal Law — Competency Determination — Appeal and Error —Technical Error.
    Failure to follow a statute or court rule respecting competency determination does not ipso facto entitle a defendant to a new trial; evidence substantiating incompetency-in-fact must establish that there was a violation of rights before a new trial will be ordered.
    3. Appeal and Error — Harmless Error.
    Error in the admission of testimony is harmless: (1) where it is not so offensive to the maintenance of sound judicial process that it can never be regarded as harmless; and (2) where, on review, the reviewing court can declare a belief that the error was harmless beyond a reasonable doubt.

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

      Rose Mary C. Robinson, for defendant on appeal.
    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.

Defendant was charged with breaking and entering an unoccupied building with intent to commit larceny, contrary to MCL 750.110; MSA 28.305. On March 21, 1977, the date set for trial, defense counsel orally moved for a competency examination, pursuant to MCL 330.2026; MSA 14.800(1026). The trial court had discussed this matter with counsel earlier and had been able to schedule a competency examination in the Recorder’s Court Psychiatric Clinic for that morning; the case was adjourned until 2 p.m., at which time a competency hearing would be held. It was agreed that if defendant were found competent to stand trial, a jury would be impanelled immediately following the afternoon hearing.

The only witness to testify at the subsequent competency hearing was a Recorder’s Court Clinic psychologist, Theresa Gillis. Miss Gillis testified that she had earned a master’s degree in psychology and that she'had 13 years of experience at the above clinic. Defense counsel chose not to voir dire Miss Gillis further with respect to her qualifications and agreed that they were "acceptable”. Miss Gillis testified that she considered the defendant competent to stand trial. On cross-examination, she related the procedure whereby her office had arrived at this conclusion.

"Well, we were familiar with Mr. James’ history because we interviewed him in 1972, and because we were asked to make this evaluation on a short notice, we did not go through the usual history taking that we do. But I had that in my possession already.
"This morning Dr. Samora who is a psychiatrist, and Dr. Kennedy who is a physician, and myself intere-viewed Mr. Chatman [sic]. ”

Miss Gillis then went on to explain the procedure in greater detail. Defense counsel offered no evidence or argument to rebut the clinic’s conclusion.

On the basis of Miss Gillis’ testimony, the court found the defendant competent to stand trial, and a jury was impanelled. Voluminous testimonial evidence was taken associating the defendant with the alleged offense. An eyewitness account was offered of defendant’s entry into the subject building. The arresting officers testified to their apprehension of defendant inside the building. Mr. Silk, owner of the delicatessen wherein the defendant was arrested, identified several articles taken from defendant’s pockets as his. During cross-examination of Mr. Silk, defense counsel utilized Silk’s testimony at the preliminary examination in an effort to impeach him.

Testifying on his own behalf against the advice of counsel, defendant offered an entirely different account of the circumstances of his arrest and denied making incriminating statements to police. In rebuttal, the officer in charge of the case recounted verbatim several incriminating statements made by the defendant.

During his final argument, the prosecutor read complainant Silk’s preliminary examination testimony verbatim to the jury. Defense counsel did not object, however, and so no consideration was given to the potential efficacy of a curative instruction. On March 23, 1977, defendant was found guilty as charged. On March 31, 1977, he was sentenced to from 5 to 10 years in prison and now appeals of right.

The defendant contends the court below erred in the following respects: first, that it was reversible error for the court to rest its finding of competency upon the testimony of a psychologist; next, that the Recorder’s Court Clinic’s failure to submit a written report constituted reversible error; finally, that the prosecutor’s action in reading from the preliminary examination transcript also constituted reversible error.

This Court has discussed on several previous occasions those credentials which the law deems necessary to qualify one to give expert psychiatric testimony. In People v Parney, 74 Mich App 173; 253 NW2d 698 (1977), the defendant was originally evaluated and found competent to stand trial by a psychiatrist. Three months later, in preparation for the defendant’s trial on new charges, he was evaluated by a forensic social worker with a master’s degree in social work. The expert had several years experience as a social worker, but only limited experience in forensic psychiatry. She found defendant competent to stand trial once again, however this conclusion was challenged on appeal.

The reviewing Court found no evidence, "[o]ther than the fact of her [very limited] employment with the forensic center” that the social worker was equipped to determine defendant’s competence to stand trial. 74 Mich App at 179. Said the Court: "her recorded background is bereft of any indication that she is experienced in the application of psychiatric knowledge to the processes of law”. 74 Mich App at 180. Furthermore, the Court concluded that "[t]he statutory procedures which become operative after a defendant is found incompetent to stand trial also suggest that assessments of competence are to be performed only by qualified medical experts”. (Emphasis in original.) 74 Mich App at 182.

In the recent case of People v Walker, 84 Mich App 700; 270 NW2d 498 (1978), the substantive testimony at defendant’s competency hearing was once again provided by a social worker. In this case, however, the social worker’s testimony merely provided a foundation for the admission of a report coauthored by the witness and a psychiatrist. Defense counsel did not object to the expert’s qualifications. The reviewing Court pointed out three separate factors which it considered distinguished Walker from the holding of reversible error in Parney. First and foremost among these reasons, the Court noted that unlike the situation in Parney, where no timely psychiatric evidence was offered, in Walker the defendant "did receive a psychiatric examination and the report was cosigned by the social worker and the psychiatrist”. (Emphasis omitted.) 84 Mich App at 703. Also, the Court felt that the "social worker’s testimony was not as substantive as that of the social worker in Parney”. 84 Mich App at 703. Finally, the Court found it relevant that the defendant failed to object to the proferred testimony. The defendant’s conviction was affirmed.

While Parney and Walker dealt with the admission of a social worker’s testimony as expert testimony, the earlier case of People v Lamont Crawford, 66 Mich App 581; 239 NW2d 670 (1976), confronted the same problem faced by this Court: admission of expert testimony by a psychologist. In Crawford, the Court first rejected the defendant’s contention that only a psychiatrist was qualified to evaluate the defendant or to offer testimony with respect to competency. It held that judged by both common law and statutory standards, a "well-qualified clinical psychologist” was "certainly competent to perform the necessary tests”. 66 Mich App at 589. It buttressed this holding by pointing out that the evaluating psychologist operated "under the supervision of a psychiatrist at the center”; that his findings were "reviewed and analyzed” by a psychiatrist; and that the psychiatrist cosigned the submitted report. 66 Mich App at 589.

Except that no written report was ever entered, the instant case is indistinguishable from Crawford. Further, the three factors emphasized by the Walker Court are substantially met herein. We find, therefore, that it was not reversible error for the court to rest a finding of competency upon the testimony of a qualified psychologist, when this testimony is founded upon a properly conducted and properly supervised psychiatric examination.

While it was not error for the court to accept the testimony of a psychologist with respect to defendant’s competency to stand trial, the clinic clearly erred in failing to submit a written report to the circuit court. This error does not, however, require reversal in the instant case. We quote with approval this Court’s opinion in People v Belanger, 73 Mich App 438, 445-446; 252 NW2d 472 (1977), wherein a similar problem was discussed:

"This case is controlled by the recent Supreme Court decision in People v Lucas, 393 Mich 522; 227 NW2d 763 (1975). As will be mentioned later in this opinion, defendant does not, on this appeal, contend that he was incompetent to stand trial. He does maintain that the court herein erred in not conducting the competency hearing required by MCLA 767.27a(4); MSA 28.966(H)(4).
"' "As we said in Blocker, supra, (People v Blocker, 393 Mich 501; 227 NW2d 767 [1975]) failure to follow a statute or court rule respecting competency determination does not ipso facto entitle a defendant to a new trial. Evidence substantiating incompetency-in-fact must establish that there is a violation of rights before a new trial will be ordered. Here, as in Blocker, no evidence of incompetence was adduced at trial and no offer of such evidence is now made.” 393 Mich at 528. [People v Tubbs, 64 Mich App 341, 343-344; 236 NW2d 77 (1975), citing Lucas.]
" 'We therefore adopt the Lucas remedy. The conviction is affirmed without prejudice to defendant’s right to file a delayed motion for new trial if he wishes to claim incompetency.’ ”

The remedy adopted in People v Lucas, 393 Mich 522; 227 NW2d 763 (1975), and in Belanger, supra, where no competency hearing was held, is equally appropriate in the instant case.

We disagree with the defendant’s final allegation that improper argument by the prosecutor in closing necessitates reversal. Overwhelming evidence of defendant’s guilt was given at trial, and the prosecutorial error was not prejudicial. This error was harmless beyond a reasonable doubt under the test adopted in People v Wichman, 15 Mich App 110, 116; 166 NW2d 298 (1968), and People v Lauzon, 84 Mich App 201; 269 NW2d 524 (1978).

Affirmed.

       The court’s conclusion with respect to the qualification of a psychologist to provide expert testimony on these matters was based upon strong precedent. See People v Lamont Crawford, 66 Mich App 581, 584-588; 239 NW2d 670 (1976). As noted by the Court in People v Parney, 74 Mich App 173, 179; 253 NW2d 698 (1977), the Crawford holding was broad enough to allow any person associated with the forensic center to provide expert testimony: the Parney Court correctly rejected this conclusion.


author: D. E. Holbrook, Jr., J.

text:
    COUNCIL NO 11, AMERICAN FEDERATION OF STATE, COUNTY, & MUNICIPAL EMPLOYEES, AFL-CIO v CIVIL SERVICE COMMISSION
    Docket No. 77-2165.
    Submitted January 9, 1978, at Detroit.
    Decided December 5, 1978.
    Limited leave to appeal granted, 406 Mich 920.
    Council No. 11, American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO, Myrl Lockett, Phil Helms, Betty Pearson, Bing Johnson and Robert G. Cusack, on behalf of themselves and on behalf of all employees in the State of Michigan classified service, commenced an action against the Michigan Civil Service Commission challenging, in view of the 1976 passage of the political freedom act, the defendant’s continued enforcement of Civil Service Commission Rule 7, which imposes a blanket ban on all political activity by classi- ' fled employees.
    Wayne Circuit Court, Roy J. Daniel, J., issued a declaratory judgment that while the defendant’s power to regulate conditions of employment was broad, it did not possess authority to regulate an employee’s private off duty activities until and unl.ess such activities interfere with job performance. The circuit court also ruled that while the 1976 political freedom act was a proper and constitutional exercise of legislative authority, the defendant’s Rules 7.1 and 7.3 could be saved if interpreted narrowly and that to the extent that a certain subsection of the statute conflicted with Rule 7.3, the subsection of the statute "may be without application to certain members of the classified state service”. The trial court further ruled that since a political campaign requires a personal, emotional, and physical dedication, the defendant was justified in discharging plaintiff Cusack who had filed a petition to become a candidate for sheriff in Ionia County. The defendant appeals and the plaintiffs cross-appeal. Held:

      References for Points in Headnotes

       26 Am Jur 2d, Elections § 387.
    63 Am Jur 2d, Public Officers and Employees §§ 284, 285.
    Validity of statutes restricting political activities of public officers or employees. 28 ALR3d 717.

       63 Am Jur 2d, Public Officers and Employees §§ 264, 280.

       15A Am Jur 2d, Civil Service §§ 10-12.

       16 Am Jur 2d, Constitutional Law §§ 204-209.

      1. The defendant’s' blanket ban on political activity by civil service employees is an improper restriction of First Amendment rights since the defendant was unable to demonstrate a compelling state interest which would justify the restrictions. Thus Rules 7.1 and 7.3 are impermissibly overbroad and a determination must be made in each case whether an employee’s political activities have a detrimental impact on job performance.
    2. Since plaintiff Cusack was discharged without a showing that his political activities affected his job performance, the lower court ruling dismissing Cusack’s complaint must be reversed and the matter remanded.
    Affirmed in part, reversed in part, and remanded for further proceedings.
    1. Constitutional Law — Work and Labor — Administrative Law— Civil Service — Political Freedom Act — Employee’s Political Activity — Statutes.
    The political freedom act permits civil servants to engage in certain types of political activities in their off-duty time; further the act prevents any unwilling employee from being coerced into engaging in political activity (MCL 15.401 et seq.; MSA 4.1702[1] et seq.).

    2. Constitutional Law — First Amendment — Relinquishment op Rights — Condition of Public Employment — Political Activities.
    The state cannot require an individual to relinguish rights guaranteed him or her by the First Amendment as a condition of public employment; when political activities of a public employee are unrelated to his or her job responsibilities, the employee must be treated as a member of the "general public” for purposes of adjudicating First Amendment rights.
    3. Administrative Law — Civil Service Commission — Plenary Powers — Legislative Controls — Employee’s Political Activity.
    The Civil Service Commission has broad plenary powers to regulate internal civil service procedures; such procedures are not subject to legislative controls; however, it is beyond the authority of the commission to restrict an employee’s political activity when that activity is not engaged in during working hours and does not actually affect job performance.

      4. Constitutional Law — First Amendment — Compelling State Interest.
    The state must demonstrate a compelling state interest in order to justify a restriction of First Amendment rights.
    5. Constitutional Law-Civil Service Commission — Ban on Employee Political Activity — Case-by-Case Analysis — Civil Service Commission — Rules.
    Rules of the Michigan Civil Service Commission which impose a blanket ban on all off-duty political activities by state classified employees are impermissibly overbroad; a case-by-case analysis should be made in each instance to determine whether an employee’s off-duty political activity adversely affects his on-the-job performance (Civil Service Commission Rules 7.1, 7.3).

      Zwerdling & Maurer (by George B. Washington), for plaintiffs.

      MacLean, Seaman, Laing & Guilford, for defendants.
    Amicus Curiae: Edward M. Wise (Robert S. Rol-linger and Sheldon L. Kay, of counsel), for the American Civil Liberties Union of Michigan.
    Before: Allen, P.J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ.
   D. E. Holbrook, Jr., J.

This dispute involves the extent to which state civil service employees may exercise their fundamental rights to speech and association during nonworking hours by engaging in political activities. Specifically at issue are Michigan Civil Service Commission Rule 7, which imposes a blanket ban on political activity by classified employees, and the so-called "political freedom act”, 1976 PA 169, MCL 15.401 et seq.; MSA 4.1702(1) et seq., which allows classified employees to engage in enumerated types of political activities.

The case went to trial on stipulated facts. Plaintiff American Federation of State, County and Municipal Employees Council 11 represents approximately 6500 employees in the classified civil service. Plaintiff Robert Cusack was employed as an "Attendant Nurse 04” until he was discharged for the sole reason that he had filed a petition to become a candidate for sheriff in Ionia County. The other individual plaintiffs are current employees in the classified civil service. In view of the passage of MCL 15.401 et seq.; MSA 4.1702(1) et seq., plaintiffs brought suit to challenge defendant commission’s continued enforcement of Rule 7 which prohibits any political activities by classified employees.

The trial court issued a declaratory judgment which concluded that while the commission’s power to regulate conditions of employment was broad, the commission did not possess authority, either express or implied, to regulate an employee’s private off-duty activities until and unless such activities affect, interfere with or conflict with job performance. Further the trial court concluded that 1976 PA 169 was a proper and constitutional exercise of legislative authority. The trial court concluded that if narrowly interpreted, commission Rules 7.1 and 7.3 could be saved. To the extent MCL 15.402(c); MSA 4.1702(2)(c), conflicted with Rule 7.3, the trial court ruled the statutory subsection "may be without application to certain members of the classified state service”. Since the court concluded a political campaign requires a personal, emotional and physical dedication, the court concluded the commission was justified in discharging plaintiff Cusack. In short, the trial court attempted to uphold both the statute and the conflicting commission rules. Both plaintiffs and defendant appeal various aspects of the lower court ruling.

Both sides present compelling constitutional and policy arguments. In its most basic terms, the dispute involves the clash between commission rules, promulgated under Const 1963, art 11, § 5, which are designed to keep politics out of the state civil service and the fundamental freedoms of speech and association guaranteed all citizens by both the Michigan and Federal Constitutions.

Defendant commission contends the Legislature is without power to legislate in any area within the sphere of authority of the commission. According to the commission, Const 1963, art 11, § 5 grants the commission exclusive jurisdiction to prohibit any political activities by civil servants since the commission is empowered to regulate all conditions of employment.

The constitutional amendment which established the Michigan Civil Service Commission has been in effect since January 1, 1941. It is undisputed that the civil service system was established to put an end to the evils of the "spoils system” which had politicized all levels of state government. The goal of the amendment was to improve the classified civil service by the adoption of a merit system. Reed v Civil Service Comm, 301 Mich 137, 154-155; 3 NW2d 41 (1942).

In pertinent part, Const 1963, art 11, § 5 reads:

"The commission shall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services, determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service.” (Emphasis supplied.)

In essence, the commission takes the position that in view of the history surrounding the amendment, the grant of power to "regulate all conditions of employment” allows the commission to impose a blanket ban on political activity because such activity is inherently at odds with the goals of the amendment.

Pursuant to the amendment the commission has promulgated the following rules:

"Rule 7.1 Prohibited Activities. — No employee in the state civil service shall engage in any political activity while on duty, nor shall he be or become: An officer in a political party or organization; a member of any political party committee formed or authorized under the general election laws of the state; a delegate to any state, district or county convention held by any political party in this state; a member of any national political party committee; a delegate from this state to any national political party convention.
"Rule 7.3 Candidates for Public Office. — No employee in the state civil service shall become a candidate for nomination to any partisan elective office without first obtaining a leave of absence. The leave of absence shall remain in force and effect until the candidacy becomes official by the filing of petitions or by the action of a caucus or a convention, or by a filing fee. When a state civil service employee becomes an official candidate for elective office set forth as above, he shall at once resign from his civil service position.”

According to the commission, the purpose of the amendment was to eliminate politics from the classified service and enforcement of these rules is necessary to carry out that purpose. Such sweeping prohibitions are necessary, the commission argues, to prevent political considerations from, however subtly, infecting the integrity and efficiency of the civil service.

In 1976 the "political freedom act”, MCL 15.401 et seq.; MSA 4.1702(1) et seq., was enacted to permit civil service employees (and employees of political subdivisions of the state) to engage in certain political activities. Several of the more important statutory sections provide:

MCL 15.402; MSA 4.1702(2):

"An employee of the state classified civil service may:
"(a) Become a member of a political party committee formed or authorized under the election laws of this state.
"(b) Be a delegate to a state convention, or a district or county convention held by a political party in this state.
"(c) Become a candidate for nomination and election to any district, county, city, village, township, school district, or other local elective office without first obtaining a leave of absence from his employment. If the person becomes a candidate for elective office in the executive or legislative branches of the state or for the supreme court or court of appeals, the person shall request and shall be granted a leave of absence without pay when he complies with the candidacy filing requirements, or 60 days before any election relating to that position, whichever date is closer to the election.
"(d) Engage in other political activities on behalf of a candidate or issue in connection with partisan or nonpartisan elections.”

MCL 15.404; MSA 4.1702(4):

"The activities permitted by sections 2 and 3 shall not be actively engaged in by a public employee during those hours when that person is being compensated for the performance of that person’s duties as a public employee.”

MCL 15.405; MSA 4.1702(5):

"A public employer, public employee or an elected or appointed official may not personally, or through an agent, coerce, attempt to coerce, or command another public employee to pay, lend, or contribute anything of value to a party, committee, organization, agency, or person for the benefit of a person seeking or holding elected office, or for the purpose of furthering or defeating a proposed law, ballot question, or other measure that may be submitted to a vote of the electors.”

MCL 15.406; MSA 4.1702(6):

"(1) An employee of a political subdivision of this state whose rights under this act are violated or who is subjected to any of the actions prohibited by section 5 may make a complaint to that effect with the department of labor. The department shall hold hearings to determine whether a violation has occurred. If a violation has occurred, the department shall so state on the record and may order the issuance of back pay and reinstatement as an employee for a person whose rights were violated.
"(2) Upon motion by the department to the circuit court, the court may issue an injunction to enforce the order of the department.
"(3) The department of civil service shall promulgate rules for hearing alleged violations of this act by a state employee.”

In short, the act permits civil servants to engage in certain types of political activities in their off-duty time. Further the act prevents any unwilling employee from being coerced into engaging in political activity.

Believing its rules are constitutionally mandated and believing the Legislature is without power to legislate in the area of civil service employment, the commission has ignored the statute and continues to enforce Rules 7.1 and 7.3.

No one challenges the broad authority of the commission to regulate on-duty activities of classified employees and to regulate those off-duty activities which actually conflict with job performance. While we recognize that off-duty political activity may affect job performance in some cases, we do not believe that the commission has the authority to impose a blanket ban on all political activities by all civil service employees. Insofar as the commission rules ban all off-duty political activity, they are impermissibly overbroad and invalid.

It is clear that the state cannot require an individual to relinquish rights guaranteed him or her by the First Amendment as a condition of public employment. Abood v Detroit Board of Education, 431 US 209, 233-235; 97 S Ct 1782; 52 L Ed 2d 261 (1977), Elrod v Burns, 427 US 347, 357-360; 96 S Ct 2673; 49 L Ed 2d 547 (1976). It is equally clear, according to Kusper v Pontikes, 414 US 51, 56-57; 94 S Ct 303; 38 L Ed 2d 260 (1973), that,

"There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of 'orderly group activity’ protected by the First and Fourteenth Amendments. NAACP v Button, 371 U.S. 415, 430 [83 S Ct 328; 9 L Ed 2d 405 (1963)]; Bates v Little Rock, 361 U.S. 516, 522-523 [80 S Ct 412; 4 L Ed 2d 480 (1960)]; NAACP v Alabama, 357 U.S. 449, 460-461 [78 S Ct 1163; 2 L Ed 2d 1488 (1958)]. The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom. Williams v Rhodes, 393 U.S. 23, 30 [89 S Ct 5; 21 L Ed 2d 24 (1968)]. Cf. United States v Robel, 389 U.S. 258 [88 S Ct 419; 19 L Ed 2d 508 (1967)].”

When political activities of a public employee are unrelated to his or her job responsibilities, the employee must be treated as a member of the "general public” for the purpose of adjudicating First Amendment rights. Phillips v City of Flint, 57 Mich App 394, 401-402; 225 NW2d 780 (1975), citing Pickering v Board of Education of Twp High School Dist 205, Will County, 391 US 563; 88 S Ct 1731; 20 L Ed 2d 811 (1968).

There is no question that the commission is granted broad plenary powers to regulate internal civil service procedures and that such procedures are not subject to legislative controls. Viculin v Dep’t of Civil Service, 386 Mich 375, 393-394; 192 NW2d 449 (1971), Welfare Employees Union v Civil Service Comm, 28 Mich App 343, 352; 184 NW2d 247 (1970), lv den, 384 Mich 824 (1971). It is quite another question, however, whether the commission may totally deprive an employee of fundamental First Amendment rights. We conclude that it is beyond the authority of the commission to restrict an employee’s political activity when that activity is not engaged in during working hours and does not actually affect job performance.

When First Amendment rights are being restricted, the state must justify the restriction by demonstrating a "compelling state interest”. Advisory Opinion on Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich 465, 481; 242 NW2d 3 (1976). All parties concede that the state has a compelling interest in restricting political activities of civil servants while on the job. Plaintiffs readily agree that the commission may validly prohibit political activity during working hours. The Legislature has expressly provided that the allowable political activities must be limited to off-duty hours. MCL 15.404; MSA 4.1702(4).

The commission cannot demonstrate a compelling interest to uphold Rules 7.1 and 7.3 which impose a sweeping prohibition on all political activities of civil servants. Public employment cannot be conditioned on relinquishing one’s right to participate in the political process. Abood, supra, Elrod, supra, Kusper, supra. As the trial judge noted, "It is the purpose of the Commission to keep politics out of the classified state service, not to keep classified employees out of politics.” Absent a showing by the commission that an employee’s off-duty political activities actually affect his or her job performance, the commission is powerless to abridge an employee’s fundamental constitutional rights.

Plaintiff Cusack’s situation highlights the need for a case-by-case approach rather than a blanket ban on all political activity. At the time of Mr. Cusack’s discharge, he was classified as an "Attendant Nurse 04”. It cannot be seriously contended that an attendant nurse can carry out his or her duties in a Republican or Democratic way. If, for example, Mr. Cusack’s campaign activities cause him to miss work or neglect his job duties, then the commission would have grounds to discharge him. But so long as plaintiff Cusack is carrying out his assigned duties during working hours, the commission has no interest in prohibiting his off-duty political activity.

We are certainly aware that there are situations, particularly involving high-ranking administrators, where partisan activities could conflict with job performance. However the potential for such conflicts does not justify a blanket ban on the large number of classified employees who do not exercise policy-making or discretionary authority. The commission is clearly empowered to promulgate rules which deal with classified employees whose political activities actually affect job-performance.

Defendant’s reliance on MacLellan v Dep’t of Corrections, 373 Mich 448; 129 NW2d 861 (1964), and Groehn v Corporation & Securities Comm, 350 Mich 250; 86 NW2d 291 (1957), is misplaced. Neither case involves an analysis of the commission’s power to abridge constitutional rights; MacLellan deals with a civil service requirement that an employee obtain prior written permission before engaging in "supplementary employment” and Groehn deals with the propriety of a "deputy commissioner in charge of regulation of real-estate practices” engaging in real estate transactions. If anything, MacLellan and Groehn indicate that whether an employee’s off-duty activities interfere with job performance must be evaluated on a case-by-case basis.

Defendant’s reliance on Broadrick v Oklahoma, 413 US 601; 93 S Ct 2908; 37 L Ed 2d 830 (1973), is also misplaced. In Broadrick the Court upheld an Oklahoma statute which prohibited state employees from engaging in political activity. Both Broadrick and its companion case, United States Civil Service Commission v National Association of Letter Carriers, AFL-CIO, 413 US 548; 93 S Ct 2880; 37 L Ed 2d 796 (1973) (upholding prohibitions on political activities by Federal employees) rely heavily on the balance struck by the legislative and executive branches that the efficiency of the civil service requires limitations on political activities by government employees. In the instant case the Michigan Legislature and executive have concluded the government has no interest in restricting First Amendment rights of civil servants in their off-duty hours. We find it difficult to say there is a compelling state interest in prohibiting the exercise of First Amendment rights when Michigan lawmakers have expressly declined to assert such an interest.

We conclude that insofar as Rules 7.1 and 7.3 impose a blanket ban on all off-duty political activity, they are impermissibly overbroad. While the commission is granted broad powers within its sphere of authority, it does not possess the power to abridge fundamental rights without a showing that an individual’s off-duty political activities have an actual effect on job performance.

Because the commission is without authority to impose a blanket ban on off-duty political activity, the Legislature has not encroached on the jurisdiction of the commission by the enactment of 1976 PA 169. We conclude that the protection of civil servants’ rights to speech and political association is a proper subject of legislative concern. While the act protects the rights of those who wish to engage in off-duty political activity, it also protects the rights of those who do not. The act does not interfere with the commission’s duty to prohibit on-duty political activity and to insure that partisan considerations do not impair the efficiency of the civil service. Further the commission has the power to restrict off-duty political activity which adversely affects the actor’s job performance or that of his co-employees or even his superiors. This might be achieved by an employee’s aspiring to and running for elective office with intimidating or inimical effect upon some segment of the service directly or indirectly connected. A determination of whether such off-duty activities have an impact on job performance must, however, be made on a case-by-case basis.

We reverse that portion of the lower court ruling which dismissed plaintiff Cusack’s complaint. While the trial judge may be correct in his observation that political campaigns require a personal, emotional and physical commitment, the judge was incorrect in concluding that campaign activities per se conflict with job performance. Whether there is an effect on job performance must be evaluated on a case-by-case basis. Because plaintiff Cusack was terminated under an overbroad commission rule and without any showing that his activities affected his job performance, we reverse and remand.

Affirmed in part; reversed in part; remanded for further proceedings._

       Although plaintiff Cusack was discharged before the effective date of 1976 PA 169, he is entitled to reinstatement of his complaint because he was discharged under impermissibly overbroad commission rules. A determination that the rules are overbroad is not dependent on the validity of 1976 PA 169.


author: Bashara, J.

text:
    PEOPLE v DENSMORE
    Docket No. 77-2600.
    Submitted October 11, 1978, at Lansing.
    Decided December 5, 1978.
    Dale L. Densmore, Jr., was convicted of first-degree premeditated murder and of first-degree felony murder, Jackson Circuit Court, Charles J. Falahee, J. The victim died of thermal injuries, carbon monoxide poisoning, and toxic fume inhalation after the defendant locked him in the trunk of an automobile and ignited a fire in the back seat. Defendant appeals, raising several allegations of error. Held:

    1. The trial court did not err by denying a motion by the defendant to stay the proceedings, made on the second day of trial and based on defense counsel’s statement that a petition for removal to the Federal court had been filed by mail the previous day. The petition for removal was not actually filed until after the trial, and was not timely. The oral notice of mailing is not procedurally sufficient to remove jurisdiction from the state court or to stay the state court proceedings.
    2. Premeditation and deliberation may be inferred from the circumstances surrounding a killing, and in this case there were sufficient facts to establish such an inference even without admission into evidence of the defendant’s confession.
    3. There are no common elements shared by arson and homicide that would mandate a merger of the two offenses based on a necessary or cognate lesser included offense analysis where death has resulted from the arson.
    4. Defendant’s convictions of both premeditated murder and felony murder constitute double jeopardy where there was only one killing.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 394.
    32 Am Jur 2d, Federal Practice & Procedure §§ 489-509.

       40 Am Jur 2d, Homicide §§ 246, 263, 264, 439, 454, 472, 501.
    Presumption of deliberation or premeditation from the circumstances attending the killing. 96 ALR2d 1435.

       5 Am Jur 2d, Arson and Related Offenses § 32.
    21 Am Jur 2d, Criminal Law § 9.

       21 Am Jur 2d, Criminal Law § 182 et seq.

    40 Am Jur 2d, Homicide §§ 72, 246, 263, 264, 439, 454, 472, 501.

      The conviction of first-degree felony murder is vacated; the conviction of first-degree premeditated murder is affirmed.
    1. Courts — Jurisdiction—State Courts — Federal Courts — Removal — Statutes.
    The right to removal of a case from state to Federal court is wholly statutory and as such can be exercised only in the method designated by Congress; oral notice to the state court of the mailing of a petition for removal, on the second day of trial, does not meet the procedural requisites necessary to remove jurisdiction from the state court, and is not sufficient to stay the state proceedings (28 USC 1446).
    2. Homicide — Murder—Premeditation—Deliberation—Inferences.
    Premeditation and deliberation, in a prosecution for first-degree murder, are not amenable to direct proof and as such may be inferred from all the surrounding circumstances.
    3. Homicide — Murder—Premeditation—Deliberation—Inferences.
    The question of whether a fact-finder’s inferences of premeditation and deliberation, in a prosecution for first-degree murder, have an adequate basis is to be considered by taking the state’s evidence as true and viewing it in the light most favorable to the state.
    4. Criminal Law — Arson—Homicide—Elements of Offense — Statutes.
    There are no common elements shared by arson and homicide which would mandate the merger of the two offenses based on a necessary or cognate lesser included offense analysis where a death has resulted from an arson (MCL 750.316; MSA 28.548).
    5. Homicide — Premeditated Murder — Felony Murder — Constitutional Law — Double Jeopardy.
    A defendant’s convictions of both first-degree premeditated murder and first-degree felony murder constitute a violation of • double jeopardy where there was only one killing.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Bruce A. Barton, Special Prosecuting Attorney, for the people.

      Lawrence Baron, Assistant State Appellate Defender, and Nora J. Pasman, Research Attorney, for defendant on appeal.
    Before: Danhof, C.J., and Bashara and Cynar, JJ.
   Bashara, J.

Defendant appeals his jury conviction of first-degree premeditated murder and first-degree felony murder, MCL 750.316; MSA 28.548.

The facts elicited at trial indicate that on the day in question, defendant drove his car down a trail road and parked off in the woods. He walked back up the trail with his sawed-off shotgun to a gas station where he was once employed. After placing the gun behind the gas station, he conversed with the attendant, Mr. Noppe, until closing time. He then retrieved the gun and proceeded to rob Noppe. The defendant tied up Mr. Noppe and made him get in the trunk of Noppe’s car. He drove the car back to the spot in the woods where he had left his own vehicle and forced Mr. Noppe into the defendant’s car trunk. He then placed a styrofoam cooler in the rear seat of the auto and set it on fire. He left the scene in Mr. Noppe’s car which was eventually found abandoned in Denver, Colorado.

The body of the decedent was found in the locked trunk of defendant’s car. The cause of death was determined to be thermal injuries, carbon monoxide poisoning, and toxic fume inhalation. The owner of the service station testified that $75 was missing, the amount that Mr. Noppe had on his person while working that night.

Defendant was arrested in Texas where a statement was taken during an interview in the Texas jail. A Walker hearing was held prior to trial. The trial court held that defendant’s statement was admissible as evidence.

The killing of Mr. Noppe was never disputed at trial, since the theory of the defense was insanity.

On the second day of trial, defense counsel informed the court that defendant had filed a petition the previous day by mail for removal to the Federal district court. The trial court denied a motion to stay the proceedings, finding that the motion in the Federal court had not been timely filed.

The removal petition was not actually filed until 18 days after the end of the trial, and was eventually denied. The Federal court found there was no valid basis for removal and that the petition had not been timely filed.

Defendant initially claims that oral notice of mailing was sufficient to stay proceedings and, in any event, timeliness is to be determined by the Federal court. We disagree.

At the time of defendant’s trial, the procedural steps necessary to effectuate removal were governed by 28 USC 1446, which provides:

"(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action.
"(c) The petition for removal of a criminal prosecution may be filed at any time before trial.
"(e) Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.”

The state court need not stay proceedings until the petition is filed. South Carolina v Moore, 447 F2d 1067, 1073 (CA 4, 1971). Oral notice of mailing on the second day of trial does not meet the procedural requisites necessary to remove jurisdiction from the state court.

The right to removal from state to Federal court is wholly statutory and as such can only be exercised in the method designated by Congress, as clearly stated in Biscup v People, 129 F Supp 765, 767 (WD NY, 1955).

"The present statute, insofar as the time for removal is concerned is imperative and mandatory, and must be strictly construed and complied with, Kramer v Jarvis, D.C., 81 F.Supp. 360, owing to the fact that the law was designed to restrict the jurisdiction of the Federal Courts.
"No discretion is conferred on Federal Courts to extend or enlarge the time in which to petition for removal, Cyc. of Fed.Proc. Vol.2, P.334.”

See also Chesimard v Kuhlthau, 370 F Supp 473, 475-6 (D NJ, 1974).

The present case is clearly distinguishable from People v Wynn, 73 Mich App 713; 253 NW2d 123 (1977), where the removal petition was filed and service effectuated on the trial court prior to the commencement of the proceedings.

Defendant’s second contention is that the prosecution failed to establish the corpus delicti of premeditated murder aliunde defendant’s confession as mandated by our Supreme Court in People v Allen, 390 Mich 383; 212 NW2d 21 (1973).

The elements that are claimed not to have been independently proved are premeditation and deliberation. This requisite state of mind is not amenable to direct proof, and as such may be inferred from all the surrounding circumstances. People v Hoffmeister, 394 Mich 155, 159; 229 NW2d 305 (1975), People v Morrin, 31 Mich App 301, 331; 187 NW2d 434 (1971).

Well established guidelines for determining premeditation and deliberation have been formulated by our courts. In People v Berthiaume, 59 Mich App 451, 465; 229 NW2d 497 (1975), these principles were reiterated:

"' (1) Premeditation can be reasonably inferred from the circumstances surrounding the killing;
"' (2) a defendant may not be found guilty of first-degree murder if he did not have an opportunity to subject the nature of his response to a second look or reflection, i.e., one cannot instantaneously premeditate a murder;
" ' (3) a sufficient time lapse to provide an opportunity for a "second look” may be merely seconds, or minutes, or hours, or more, dependent on the totality of the circumstances surrounding the killing;
"' (4) where it is factually clear that there is no evidence of premeditation the trier of fact may not consider a charge of first degree murder.’ People v Meier, 47 Mich App 179, 191-192; 209 NW2d 311 (1973). (Emphasis in original.)”

In determining whether such inferences have an adequate basis, "the state’s evidence must be taken as true, and it must be viewed in the light most favorable to the state, so that the state benefits from every reasonable inference to be drawn therefrom”. People v Charles, 58 Mich App 371, 384; 227 NW2d 348 (1975).

A review of the record reveals facts, set forth at the outset of this opinion, to sufficiently establish an inference of premeditation and deliberation without resorting to defendant’s confession.

The next argument, raised is a novel one. Defendant claims that since arson was the means by which the killing was perpetrated, the arson, in effect, is an assault resulting in murder. Accordingly, the arson should merge with the killing, precluding a felony-murder conviction.

Our felony-murder statute, MCL 750.316; MSA 28.548, provides that,

"All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary, larceny of any kind, extortion or • kidnapping, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.”

Since the Legislature has seen fit to clearly enumerate the exclusive felonies which can underlie a felony-murder conviction, it would not comport with the legislative intent if we were to adopt defendant’s theory of merger.

Arson is a predicate felony in the felony-murder statute. There are no common elements shared by arson and homicide which would mandate merger based on a lesser included or cognate offense analysis. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975).

Taken to its logical conclusion, defendant’s argument would confine first-degree felony murder to cases where death was not intended by the arsonist. This result would be illogical and has no support in case law or statutory enactment.

Defendant also contends that where there is only one killing, there cannot be a conviction of both first-degree premeditated murder and first-degree felony murder. Although defendant received only one sentence, he argues the court should vacate one of the convictions.

In People v Sparks, 82 Mich App 44, 53; 266 NW2d 661 (1978), this Court found that two such convictions violated double jeopardy. There was only one murder and therefore could only be one crime.

A similar situation was present in People v Hall, 83 Mich App 632; 269 NW2d 476 (1978), where three separate acts resulted in six murder convictions. This was found to constitute impermissible double punishment and three of the convictions and sentences were vacated.

Two convictions, though they result in only one sentence, can still punish the defendant in several ways. People v Stewart (On Rehearing), 400 Mich 540, 549-50; 256 NW2d 31 (1977), and People v Martin, 398 Mich 303, 310-11; 247 NW2d 303 (1976).

Defendant’s final contention regarding jury instructions must be rejected as the matter was not raised in the trial court and no miscarriage of justice occurred therefrom.

Defendant’s conviction of first-degree felony murder is vacated. Defendant’s conviction of first-degree premeditated murder is affirmed.

        People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).


author: R. H. Campbell, J.

text:
    GRAND HAVEN TOWNSHIP v BRUMMEL
    Docket No. 77-2000.
    Submitted June 8, 1978, at Grand Rapids.
    Decided December 5, 1978.
    Defendant, James Brummel, applied for and obtained building permits for two houses on adjoining lots in plaintiff Grand Haven Township. A township zoning ordinance required houses to be set back 50 feet from the road right-of-way and, also, contained restrictions on distances from side boundaries. Due to a mistake by defendant and his surveyor as to the width of the right-of-way, both foundations were laid in violation of the setback provisions. The township’s building inspector, also believing the right-of-way to be narrower than it was, issued the building permits and failed to detect the violations when he inspected the property during construction. Also, as a result of a mistake by defendant’s surveyor or acts of an interloper, or both, the houses were built in violation of the side-boundary restrictions. Both parties became aware of the violations when, after one house was complete and the other was three-quarters complete, a neighbor complained. Defendant halted construction and requested a variance or lot split, both of which plaintiff denied. Plaintiff sued defendant in the Ottawa Circuit Court and obtained a mandatory injunction, James E. Townsend, J., requiring defendant to relocate the houses at a cost of $100,000. Defendant appeals. Held:

    A mandatory injunction should not be issued under these circumstances where both parties acted in good faith and in the absence of fraud or collusion and where no equally adverse harm to the public is shown.
    Reversed.
    Injunction — Zoning—Estoppel.
    A municipality cannot generally be estopped from enforcing its zoning ordinances by the ultra vires acts of its zoning officials; it does not always follow, however, that a mandatory injunction should issue to correct inadvertent noncompliance where both parties acted in good faith and without fraud or collusion, where the injunction would work a substantial hardship on the inadvertent violator and where no equally adverse harm to the public is shown.

      Reference for Points in Headnote
    82 Am Jur 2d, Zoning and Planning § 244 et seq.

      James W. Bussard, for plaintiff.

      Scheuerle, Legatz & Zitta, for defendant.
    Before: Danhof, C.J., and V. J. Brennan and R. H. Campbell, JJ.

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

   R. H. Campbell, J.

Defendant, James Brummel, applied for and obtained building permits for two houses on adjoining lots in Grand Haven Township. By zoning ordinance the township requires houses to be set back 50 feet from the road right-of-way and no less than 15 feet from either side boundary, with no less than 35 feet total side yardage. In his application defendant asserted he would substantially comply with these restrictions.*

Due to a mistake by Brummel and his surveyor as to the width of the abutting right-of-way, both foundations were laid in violation of the set-back provision. The township’s building inspector also believed the right-of-way was narrower than it is, and issued the building permits on the basis of that mistaken assumption. Also because of his false impression, the inspector was unable to notice the violations when he checked the premises several times during construction, although it was apparent that the Brummel houses were much further forward than other homes along the road. Testimony conflicted as to whether plaintiffs building inspector affirmatively misrepresented the right-of-way width to Brummel. The trial court found that he did not.

As a result of a second error by Brummel’s surveyor or acts by an interloper, or both, the houses were also built too close to the lots’ side boundaries. Shortly before excavation began, Brummel discovered that the surveyor had measured and staked a lot owned by Brummel’s neighbor. Brummel requested the surveyor to move the stakes. When they were relocated onto Brummel’s property, the markers were incorrectly placed. Brummel introduced unchallenged hearsay that a neighbor had moved them instead of the surveyor. The builder placed the first house by reference to the stakes and located the second house by reference to the first.

Both parties first became aware of the violations upon complaint by a neighbor, after one house had been built and the other three-quarters completed. Brummel halted construction and asked the township for a variance or lot split, which requests were denied. The township subsequently obtained a mandatory injunction compelling Brummel to relocate the buildings. The judge that granted the injunction found, among other things, that the township was not estopped from asserting the zoning ordinance because "the mistake was that of defendant or that of his agent”. On equitable grounds we reverse.

As a general rule, a municipality cannot be estopped from enforcing its zoning ordinances by the ultra vires acts of its zoning officials. Fass v Highland Park, 326 Mich 19; 39 NW2d 336 (1949). Every person is presumed to know the nature and extent of the powers of municipal officers. Id. at 27; 39 NW2d at 339-40; 6 ALR2d 960, 964. The rule extends when the parties labor under a mistake of fact as well as law, 1 Anderson, American Law of Zoning (2d ed), § 6.15, pp 386, 388, and has been held to apply even when the ordinance violator acts in good faith, expending money or incurring obligations, in reliance upon the official’s acts. E.g., Fass v Highland Park, supra; see 6 ALR2d at 965.

Defendant correctly frames the question in this case, however, not as one of estoppel, but as one concerning the propriety of issuing an injunction.

In Pittsfield Twp v Malcolm, 375 Mich 135; 134 NW2d 166 (1965), the Michigan Supreme Court denied injunctive relief to a municipality seeking to restrict the defendant from operating a dog pound, a use which the town’s building inspector erroneously believed permissible when he issued a construction permit for the kennel. As compelling reasons for denying the injunction, the Court found: (1) both parties had acted noncollusively and in good faith; (2) notice of the special use to be made was published and apparent from the unique structure of the building; (3) the defendant had spent $45,000 for a specialty building that was otherwise of doubtful utility; and (4) plaintiffs suit came ten and one-half months after the kennel had been constructed and begun operating. While parts of the opinion seem to cast the decision as an exception to the nonestoppel rule of Fass, see 375 Mich at 146-147, we find it more clearly to be an application of the equitable principle that a court will not grant an injunction that works an injustice. Supporting that interpretation is the Court’s conclusion in Pittsfield Twp: "While no factor is in itself decisive of the case, the entire circumstances, viewed together, present compelling reasons why equity should refuse plaintiffs request for injunction. To do otherwise would be contrary to equity and good conscience.” 375 Mich at 148; 134 NW2d at 173. To the same effect is Justice Black’s concurrence: "This being an equity case, and the equities being all one way, I would affirm on the ground that the plaintiff township stands at equity’s fount in no better position than would a similarly situated private suitor”. Id. at 148-149; 134 NW2d at 173.

In the present case the equities favor Brummel. Both parties through their agents acted in good faith upon a mutual mistake. See generally, Gordon v City of Warren Planning & Urban Renewal Commission, 388 Mich 82; 199 NW2d 465 (1972). Brummel stopped building as soon as he received notice of the violation, compare Building Commission of Detroit v Kunin, 181 Mich 604; 148 NW 207 (1914), and had previously changed the design of one home to assure that it could be constructed within the designated setback lines. Some doubt about Brummel’s good faith is raised by the trial court’s finding that "[b]oth lots slope down sharply in the rear, severely limiting buildable area, a situation previously disclosed to defendant by Mr. Goff, but not remembered by defendant at the time he acquired such lots”. The record clearly shows, however, that the situation disclosed by Goff related to different lots and a different gully. The trial court’s finding that the mistake was that of defendant and his agent partially conflicts with its acknowledgement that an interloper may have relocated the stakes, and ignores the building inspector’s testimony that he was moved to issue the building permits by his own mistake as to the. width of the right-of-way. Accepting the trial court’s finding that the building inspector did not affirmatively misrepresent this fact to defendant, the present case is distinguishable from Pitts-field Twp, but not in a material way. That finding does not refute either party’s good faith. There is no hint of fraud or collusion. While both sides could have discovered the error by diligent effort, the question remains as between them who in equity should prevail.

Similar to Pittsfield Twp, some questions about the appropriateness of the building setbacks in this case was apparent upon visual inspection, as both structures were out of line with neighboring homes.

Mr. Brummel has spent over $100,000 in constructing these two houses which he says he can relocate only at the same cost. While we judicially notice and approve the general policy behind setback and side yard restrictions, plaintiff has not shown us how this isolated violation will produce an equally adverse harm to the public.

Finally, the township’s suit comes at a time when both houses have been substantially completed.

Under these circumstances, the trial court should have denied the township’s request for an injunction.

Reversed. Cost to appellant.

       In his application for one house Brummel proposed side yards of 15 and 17 feet, which combined (32 feet) would violate the overall side yardage requirement of 35 feet. Since this mistake was apparent on the application, the trial court held that the township could not force compliance after the homes were substantially completed. That ruling is not challenged on appeal.

      We note that defendant was not grossly negligent in failing to discover the true right-of-way. The transcript shows that the right-of-way is one hundred feet along defendant’s property line, but 66 feet about a mile north. These dimensions were not listed in the township records. When plaintiffs building inspector first suspected the setback violation, he discovered the omission in the township documents, and only found the actual width of the right-of-way upon search of the county records, with assistance of a county engineer.


author: J. H. Vander Wal, J.

text:
    GROSS v GREAT ATLANTIC & PACIFIC TEA COMPANY
    Docket No. 77-3122.
    Submitted October 17, 1978, at Detroit.
    Decided December 5, 1978.
    Leave to appeal applied for.
    Adolph Gross suffered a back injury while working for the Great Atlantic & Pacific Tea Company. He later petitioned for and received worker’s disability compensation benefits. A & P later filed a petition to stop compensation and an alternative petition to divert benefits. The hearing referee denied A & P’s petitions and awarded expert witness and attorney fees to Gross. A & P appealed to the Workmen’s Compensation Appeal Board which reversed the referee on the subject of expert witness and attorney fees. Adolph Gross now appeals to the Court of Appeals by leave granted. Held:

    The Worker’s 'Disability Compensation Act and Rule 14 of the Workmen’s Compensation Bureau Rules are explicit and provide for no attorney fees or other expenses in a petition to stop compensation.
    Affirmed.
    1. Workmen’s Compensation — Worker’s Disability Compensation Act — Remedial Act — Liberal Construction.
    The Worker’s Disability Compensation Act is remedial in nature and should be construed in a liberal and humanitarian manner in favor of the employee.
    2. Workmen’s Compensation — Attorney Fees — Costs—Statute.
    The general rule in worker’s disability compensation cases is that each party pays his or her own attorney fees and costs unless a statute specifically provides otherwise (MCL 418.858; MSA 17.237[858]).
    3. Workmen’s Compensation — Workmen’s Compensation Bureau Powers.
    The Workmen’s Compensation Bureau is a creature of the Legislature and has no more power than explicitly given to it by the Legislature.

      References for Points in Headnotes

       81 Am Jur 2d, Workmen’s Compensation §§ 27-33.

       82 Am Jur 2d, Workmen’s Compensation §§ 644-647.

       81 Am Jur 2d, Workmen’s Compensation §§ 79-82.

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, P.C., for plaintiff.

      Lacey & Jones (by John L. Salter), for defendant.
    Before: Beasley, P.J., and R. B. Burns and J. H. Vander Wal, JJ.

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

   J. H. Vander Wal, J.

Plaintiff Adolph Gross appeals by leave granted from a July 21, 1977, Workmen’s Compensation Appeal Board order which reversed a hearing referee decision awarding plaintiff $425 in expert witness fees and $400 in actual attorney fees. The referee awarded the fees when he denied defendant’s petition to stop compensation and its alternative petition to divert benefits.

Plaintiff suffered a back injury on July 13, 1968, while lifting heavy pieces of meat in the course of his employment. Thereafter, plaintiff petitioned for and received worker’s compensation benefits. But on October 17, 1974, defendant filed a petition to stop compensation and an alternative petition to divert benefits. Defendant claimed that plaintiff was capable of resuming employment.

At the hearing on defendant’s petitions, it was shown that plaintiff had secured part-time employment as a meat-counter clerk but did not lift heavy pieces of meat or cut meat. Plaintiff’s physician-witness testified to plaintiff’s continuing disability to cut meat and defendant’s physician-witness testified that plaintiff could work but that he would order lighter work for plaintiff because of the subjective complaints of back pain.

The hearing referee denied defendant’s petitions and awarded plaintiff expert witness and attorney fees. Defendant appealed to the Workmen’s Compensation Appeal Board and the board reversed the referee on the subject of expert witness and attorney fees. Plaintiff now appeals by leave to this Court. We affirm.

It is certainly true that the Worker’s Disability Compensation Act is remedial in nature and should be construed in a liberal and humanitarian manner in favor of the employee. See e.g., Jolliff v American Advertising Distributors, Inc, 49 Mich App 1; 211 NW2d 260 (1973), lv den, 391 Mich 780 (1974). But the general rule in worker’s compensation law is that each party pays his or her own attorney and costs unless a statute specifically provides otherwise. 3 Larson’s Workmen’s Compensation Law, §§ 83.11 & 83.20, pp 15-584 and 15-626; and see State Farm Mutual Automobile Ins Co v Allen, 50 Mich App 71; 212 NW2d 821 (1973).

MCL 418.858; MSA 17.237(858) addresses the matter of costs in worker’s compensation cases:

"Sec. 858. The cost of such hearing, including the cost of taking stenographic notes of the testimony presented at such hearing, not exceeding the taxable costs allowed in actions at law in the circuit courts of this state, shall be fixed by the director and paid by the state as other expenses of the state are paid. The fees and payment thereof of all attorneys and physicians for services under this act shall be subject to the approval of a hearing referee. In the event of disagreement as to such fees, an interested party may apply to the bureau for a hearing. After an order by the referee, review may be had by the director if a request is filed within 15 days. Thereafter the director’s order may be reviewed by the appeal board on request of an interested party if a request is filed within 15 days. The director, by rule, may prescribe maximum attorney fees and the manner in which the amount may be determined or paid by the employee. When fees are requested in excess of that provided by rule, the director may award such fee by special order.” (Emphasis added.)

But this statute, as did its predecessors, applies to disputes between attorneys and their clients; it does not apply to disputes between parties. See Rench v Kalamazoo Stove & Furnace Co, 290 Mich 476, 479-480; 287 NW 884 (1939), Pearson v Gillard, 231 Mich 541, 543; 204 NW 725 (1925), May v Charles Hoertz & Son, 204 Mich 432, 436-437; 170 NW 305 (1919).

The Workmen’s Compensation Bureau is a creature of the Legislature and has no more powers than explicitly given to it by the Legislature. Attorneys’ fees, other fees, and expenses must be borne by the parties themselves in the absence of a statute shifting the incidence of such expenses. MCL 418.858; MSA 17.237(858) and Rule 14 of the Workmen’s Compensation Bureau Rules, 1972 AACS R 408.44, are explicit and provide for no attorney fees or other expenses in a petition to stop compensation.

Plaintiff points to no other statutes or cases which might authorize the hearing referee’s action in awarding plaintiff expert witness and attorney fees. Our review of the law indicates that no such authorization exists.

The equities in this case are with plaintiff, but his remedy is with the Legislature and not with the courts.

Affirmed.