author: M. J. Kelly, J.

text:
    CLARK V GERITY MICHIGAN CORPORATION
    Docket Nos. 77-53, 77-54.
    Submitted January 9, 1978, at Detroit.
    Decided June 19, 1978.
    Leave to appeal applied for.
    Plaintiff Thurmon Clark suffered the industrial amputation of both hands on June 11, 1956, while in the employment of defendant Gerity Michigan Corporation. Defendants Fidelity & Casualty Company of New York, Gerity’s insurance carrier, and the Second Injury Fund paid plaintiff total and permanent disability benefits for a period of 800 weeks from the date of injury, before terminating all benefits on October 12, 1971. Plaintiff petitioned the Workmen’s Compensation Bureau and received a hearing regarding the payment of further benefits. The hearing was held on stipulated proofs that plaintiff had been working continuously since 1962 as a night watchman and supervisor of boys in a county juvenile home, at wages greater than those earned at the time of injury. The hearing referee held the plaintiff’s right to benefits terminated at the conclusion of the 800 weeks, finding that the presumption of permanent and total disability no longer applied and factually that plaintiff was not presently disabled. Plaintiff appealed to the Workmen’s Compensation Appeal Board which reversed the referee’s ruling and ordered continuing benefits, holding that the plaintiff’s physical state was conclusive regarding his continued entitlement to total disability benefits and that his current employment was not of legal significance. Applications for leave to appeal to the Court of Appeals were granted to Gerity and Fidelity and to the Second Injury Fund, and the cases were consolidated. Held:

    Plaintiff is not presently incapacitated from work at common labor as a result of his injury. The statute regarding total incapacity that was in effect at the time of the injury provided that the conclusive presumption of total and permanent disability terminates at the end of 800 weeks and the further entitlement to disability benefits thereafter becomes a question of fact subject to adjudication under the provisions of the Worker’s Disability Compensation Act. The question of fact of further entitlement to disability benefits after 800 weeks is not circumscribed by the definition of total and permanent disability contained in the section of the act defining total and permanent disability.

      References for Points in Headnotes
    [1] 81 Am Jur 2d, Workmen’s Compensation § 27.
    [2] 81 Am Jur 2d, Workmen’s Compensation § 4.
    [3] 82 Am Jur 2d, Workmen’s Compensation § 340.

      Reversed.
    1. Workmen’s Compensation — Court of Appeals — Legislative Intent — Promulgation of Acts — Interpretation.
    The Court of Appeals is not bound in appeals from the Workmen’s Compensation Appeal Board by the appeal board’s interpretation of the Legislature’s intent in promulgating an act.
    2. Workmen’s Compensation — Right to Compensation — Existence.
    An injured employee’s right to worker’s compensation is controlled by the law in effect at the time the right to compensation springs into existence.
    3. Workmen’s Compensation — Conclusive Presumptions — Total Incapacity — Total and Permanent Disability — Termination of Presumption — Question of Fact — Further Entitlement— Statutes.
    The conclusive presumption of total and permanent disability within the meaning of the workmen’s compensation act regarding total incapacity terminates at the end of 800 weeks from the date of injury; the further entitlement to disability benefits thereafter becomes a question of fact subject to adjudication under the provisions of the Worker’s Disability Compensation Act and is not circumscribed by the definition of total and permanent disability contained in the statute defining total and permanent disability (MCL 412.9, 412.10; MSA 17.159, 17.160).

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, P. C. (by Robert G. Hodges and Raymond A. Booms), and Joseph J. Conklin, for plaintiff.

      Conklin, Benham, McLeod, Ducey & Ottaway, P. C. (by Thomas P. Chuhran), for Gerity Michigan Corporation and Fidelity & Casualty Company of New York.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Richard F. Za

      pala, Assistant Attorney General, for the Second Injury Fund.
    Before: Allen, P. J., and J. H. Gillis and M. J. Kelly, JJ.
   M. J. Kelly, J.

Plaintiff-appellee, Thurmon Clark, was employed by the defendant, Gerity Michigan Corporation on June 11, 1956, when he suffered the industrial amputation of both hands. The plaintiff lost his hands when the punch press to which he was assigned repeated.

The employer’s insurance carrier, Fidelity & Casualty Company of New York, and the Second Injury Fund, have paid total and permanent disability benefits from the date of injury until October 12, 1971, a period of 800 weeks. On October 12, 1971, the defendants terminated all benefits.

Plaintiff petitioned for further benefits, a hearing was held on stipulated proofs that plaintiff went to work in 1962 in the field of common labor as a night watchman and supervisor of boys in a county juvenile home. For purposes of this record plaintiff’s employment is continuous and his wages greater than those earned at the time of injury. On the stipulated facts the administrative law judge entered a decision that plaintiff’s right to benefits terminated at the conclusion of 800 weeks. He found "that the presumption of permanent and total disability no longer applies and factually plaintiff is not presently disabled”. The appeal board split 3-2, reversed the administrative law judge and ordered continuing benefits on the basis that plaintiff’s physical state was conclusive regarding continuing entitlement to total disability benefits and holding his current employment without legal significance.

The issue is clear-cut but there is no precedent. We are called upon to interpret the Legislature’s intent in promulgating 1955 PA 250; MCL 412.9; MSA 17.159. We are not bound by the Workmen’s Compensation Appeal Board’s interpretation of the act. DeGeer v DeGeer Farm Equipment Co, 391 Mich 96, 100; 214 NW2d 794 (1974).

An injured employee’s right to worker’s compensation is controlled by the law in effect at the time the right to compensation springs into existence. Tarnow v Railway Express Agency, 331 Mich 558; 50 NW2d 318 (1951), Pleiness v Mueller Brass Co, 56 Mich App 169; 223 NW2d 634 (1974). The law in effect at the time of Mr. Clark’s injury, 1955 PA 250 (formerly MCL 412.9; MSA 17.159, current version at MCL 418.351; MSA 17.237(351)) provided in pertinent part:

"Sec. 9. (a) While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee, a weekly compensation of 66-2/3% of his average weekly wages, but not more than $32.00 if such injured employee has no dependents; $34.00 per week if 1 dependent; $36.00 if 2 dependents; $38.00 if 3 dependents; $40.00 if 4 dependents and $42.00 if 5 or more dependents. Weekly payments shall in no event be less than $18.00 if there are no dependents; $20.00 if 1 dependent; $22.00 if 2 dependents; $24.00 if 3 dependents; $26.00 if 4 dependents; and $28.00 if 5 or more dependents, and in no case shall the period covered by such compensation be greater than 500 weeks from the date of injury, nor shall the total compensation exceed an amount equal to 500 times the total weekly amount payable under this section 9, except for permanent and total disability as defined in section 10, when the compensation shall be paid for the duration of such permanent and total disability: Provided, That the conclusive presumption of total and permanent disability shall not extend beyond 800 weeks from the date of injury, and thereafter the question of permanent and total disabil ity shall be determined in accordance with the fact, as the fact may be at that time. Any person who is permanently and totally disabled and who is receiving payments of workmen’s compensation which are payable to such person under this act in amounts per week of less than is presently provided in the workmen’s compensation schedule of benefits for permanent and total disability and for a lesser number of weeks than the duration of such permanent and total disability shall hereafter receive weekly, without application, from the second injury fund, an amount equal to the difference between what he is now receiving per week and the amount per week now provided for permanent and total disability with appropriate application of the provisions of paragraphs (b), (c), (d) and (e) of this section since the date of injury. Payments from this second injury fund shall continue after the period for which any such person is otherwise entitled to compensation under this act for the duration of such permanent and total disability according to the full rate provided in the schedule of benefits.” (Emphasis added.)

The act in effect at the time of the injury also provided in § 10 that:

"Total and permanent disability, compensation for which is provided in section 9 hereof, means:
(1) Total and permanent loss of sight of both eyes.
(2) Loss of both legs or both feet at or above the ankle.
(3) Loss of both arms or both hands at or above the wrist.
(4) Loss of any 2 of the members of faculties enumerated in (1), (2) or (3).
(5) Permanent and complete paralysis of both legs or both arms or of 1 leg and 1 arm.
(6) Incurable insanity or imbecility.”

1954 PA 175 (formerly MCL 412.10; MSA 17.160, current version at MCL 418.361; MSA 17.237(361)). In 1956 the Legislature added a seventh category.

"(7) Permanent and total loss of industrial use of both legs or both hands or both arms or 1 leg and 1 arm; for the purpose of this subsection (7) such permanency to be determined not less than 30 days before the expiration of 500 weeks from the date of injury.”

1956 PA 195 (formerly MCL 412.10; MSA 17.160, current version at MCL 418.361; MSA 17.237(361)).

Plaintiff contends that since he still comes within the provisions of subsection 3, he is totally and permanently disabled as defined by law. However, defendants point out that § 9 requires that after 800 weeks, "the question of permanent and total disability shall be determined in accordance with the fact, as the fact may be at that time” and that therefore plaintiff must be permanently and totally disabled in fact to be entitled to further benefits.

Simply stated, the question comes down to whether the statutory definition of total and permanent disability applies after the 800 week period as plaintiff contends or whether after 800 weeks, the question of total and permanent disability becomes a question of fact using the standards set forth in cases decided before the statutory definition, MCL 412.10; MSA 17.160, was enacted. 1954 PA 175.

Michigan courts have not addressed the issue of what standards are to be used to determine total and permanent disability after the 800 week presumption has elapsed. It is clear that to qualify for the 800 week presumption, a claimant must come within one of the subsections of § 10. Hier v Boichot Concrete Products Corp, 379 Mich 605; 153 NW2d 753 (1967), Verberg v Simplicity Pattern Co, 357 Mich 636; 99 NW2d 508 (1959). The cases on which both plaintiff and defendants rely do not help resolve this question because they are distinguishable.

We see the statute as equivocal. We determine the issue on our surmise of legislative intent. We reverse.

Plaintiff is employed at common labor and has been since 1962.

Plaintiff is not incapacitated from work as a result of his injury.

The conclusive presumption of total and permanent disability within the meaning of the act terminates at the end of 800 weeks. The further entitlement to disability benefits thereafter becomes a question of fact. We believe the Legislature intended the question of fact of further entitlement to be subject to adjudication under the provisions of the Worker’s Disability Compensation Act whether the worker happened to be a bilateral amputee or was subject to a general disability. The opposite view was so eloquently expressed by appeal board member Molly Ann C. Beitner that we print a portion of her opinion as an appendix to this decision. For what it is worth we express our sympathy with that view but we decide these controversies on our oaths as jurists, not on our sympathies with results.

We hold that the appeal board erred in determining the question of fact of further entitlement after 800 weeks as being circumscribed by the definition of total and permanent disability listed in the subsections of § 10, supra.

Plaintiff’s physical state is not the whole issue. Plaintiff’s capacity for work at common labor is conceded in the stipulated facts. Plaintiff’s incapacity for work at common labor terminated when he went to work in 1962. His entitlement to benefits expired at the end of 800 weeks in 1971. We are not presented with a claim for differential benefits. Questions of individual heroism, dedication, self-enlightenment and incentive for rehabilitation are beside the fact. Plaintiff is not presently incapacitated from work at common labor on the stipulated facts.

Reversed. No costs.

APPENDIX

(Excerpt from the majority opinion of appeal board member Molly Ann C. Beitner)

"To hold, as does the Chairman, that wages at the time of hearing equal to or greater than wages at the time of injury is dispositive of the issue before us is to condone gross inequity and to invite utter chaos, hardly reflective of stability in administering these cases as they arise. Suppose, for example, that plaintiff had lost, at some point up to the day before the hearing, his job as head counter. Would then defendant have continued payments voluntarily and withdrawn its application for hearing if one had been filed in such a situation? Suppose the job were lost the day after the hearing. Would then the Chairman order that benefits resume? I suspect that the argument in the first example and the holding in the second would be that plaintiff is deprived of further benefits because he has established a subsequent wage earning capacity by virtue of the fact of having done, at some point since his injury, regular work for regular wages. This is however not enough to establish wage earning capacity. Evans v US Rubber Co, 379 Mich 457, 152 NW2d 641 (1967). If the fact of having done or of doing regular work for regular wages is to be the reason for denying further benefits to the bilateral amputee the wary bilateral amputees of the future will surely choose any dole for which they might qualify over honest wages to supplement their benefits especially if such honest wages begin to approach those earned at the time of injury many years before. If the fact of having done or of doing regular work for regular wages is determinative of the issue before us, what marketable expertise has the bilateral amputee acquired in such regular work to place him in the position that the Second Injury Fund was, by the 1955 and 1956 amendments, designed to place him when that job is lost and he, with bilateral amputations, goes looking for work? It is my position that the Act contemplates no consideration of such factors and that total and permanent disability at the expiration of 800 weeks is a question solely of physical fact. PA 1955 No 250 speaks of permanent and total disability thereafter not of general disability thereafter. That this interpretation well means lifetime benefits for the bilateral amputee is no more than a foreshadowing of later provisions to award lifetime benefits to the merely generally disabled. It is reasonable that the Legislature began with the most grievously injured workers. Any corporate villainy which existed in the past has long been replaced by corporate conscience and machines which repeat have been replaced by those which cannot dismember. The horror experienced by plaintiff was an isolated one even 20 years ago. I have faith that such tragedies will occur with infinitely increasing infrequency. When they do occur, it is the public policy of an enlightened people to direct, to the full extent provided in law, that the resources of modern industry compensate the victims. The mandate is reflected not just in the spirit of our Act but in its very wording.

"In my conviction that only one fact, the physical fact, may be considered at the expiration of 800 weeks, I am not unmindful of the possibility that there will appear someday before the Bureau that plaintiff who, at common labor, lost hand and foot, for example, but who, so handicapped, overcame to attain eminence in some profession or proficiency in some trade, the individual who, through genius, perseverance, or the blessing of genuine rehabilitative measures, has done for himself that which the 1955 and 1956 provisions were added to do for him. Perhaps by use of the words "establish a subsequent wage earning capacity” the Courts over the years have contemplated a continuing but noncompensable general disability in the field of common labor where the injury occurred because the injured employee acquired a skill and, through the plying of such trade for a significant period of time, carried with him a marketable expertise when he lost any particular job within the field of that skill. Little short of such a situation and perhaps not even such a situation (the plaintiff in Liesinger [v Owen-Ames-Kimball Co, 377 Mich 158; 139 NW2d 706 (1966)] acquired and worked at the new skill of welder yet Mr. Justice Souris nonetheless, as noted earlier, anticipated the possibility of continued benefits beyond 800 weeks) would permit a holding under our law of disability — inability to compete with the able bodied because of a work-related injury in the whole field of employment, skilled or common labor, in which the injury occurred, inability to do all those tasks within that field after the injury because of the injury that the employee was able to do, although perhaps never called upon to do, before the injury — that an injured employee has established a subsequent wage earning capacity in the face of residuals of that work-related injury.

"The statutory provisions for total and permanent disability do not permit consideration of factors which may be considered in evaluating continuing general disability. Because I believe that the Legislature intended the designation total and permanent disability to be one in which few injured employees be included, I believe as well that it intended that designation to be one from which employees who, because of irredeemable losses comprised within a minority of the categories, never be excluded. ” (Emphasis in original.)


source: Caselaw Access Project

author: D. C. Riley, J. Beasley, P. J.

license: Public Domain

text:
    PARKS v JOHNSON
    Docket No. 77-137.
    Submitted February 23, 1978, at Detroit.
    Decided June 19, 1978.
    Leave to appeal applied for.
    Verna M. Parks, a counselor in the Detroit Public School System, commenced a libel suit against Zodie A. Johnson, the principal at the plaintiffs school. The defendant, as part of her duties under a collective bargaining agreement, prepared recommendations for disciplinary action against staff members where circumstances demanded such action. The alleged defamation occurred when she prepared a memorandum, in the course of this duty, which ultimately was partially responsible for the plaintiffs transfer to another school. The defendant moved for summary judgment on two grounds: (1) that the communication, prepared in the course of her official duties was absolutely privileged from liability for defamation, and (2) assuming that only a qualified privilege was applicable, the plaintiff had not alleged sufficient facts to raise the issue of malice, which would be required to overcome the privilege. The motion for summary judgment was denied, Wayne Circuit Court, James Montante, J. The defendant appeals by leave granted. Held:

    There was no absolute privilege for the defendant since such a privilege extends only to persons acting in an administrative or legislative capacity; however, the defendant was covered by a qualified privilege. The plaintiff had presented enough evidence to raise a factual issue as to whether the defendant maliciously communicated false information.
    Affirmed.
    Beasley, P. J., dissented. He would hold that while the defendant did not have an absolute privilege, she did have, under the circumstances of this case, a very strong privilege not easily lost or defeated. He would also hold that this privilege protected her where she delivered the statement only to the regional superintendent to whom she was obligated to deliver it as part of her employment responsibility and where the pleadings filed by the plaintiff do not indicate a lack of good faith or malice on the part of the defendant. He would reverse the trial court and would grant summary judgment.

      References for Points in Headnotes
    [1] 50 Am Jur 2d, Libel and Slander § 193.
    [2, 3] 50 Am Jur 2d, Libel and Slander § 194.
    [4, 5] 50 Am Jur 2d, Libel and Slander §§ 196-197.
    [6] 73 Am Jur 2d, Summary Judgment § 20.
    [7,10] 73 Am Jur 2d, Summary Judgment § 26.
    [8] 50 Am Jur 2d, Libel and Slander § 174.
    [9, 10] 50 Am Jur 2d, Libel and Slander § 205.

      Opinion op the Court
    1. Libel and Slander — Publication—False—Malice—Absolute Privilege.
    There can be no action for libel even if a publication was false and maliciously and knowingly published where an absolute privilege is applicable.
    2. Libel and Slander — Absolute Privilege — Legislative, Judicial and Executive Proceedings.
    Generally, absolute privilege from being called to account for language used is confined to cases in which the public service or the administration of justice is involved, such as language used in legislative, judicial and executive proceedings and is not intended so much for the protection of those engaged in the service as it is for the promotion of the public welfare.
    3. Libel and Slander — Absolute Privilege — Federal Employees— State Employees.
    The Federal rule which extends to all Federal employees an absolute privilege from liability for defamation for publications made within their particular line of duty has not been accepted in Michigan to provide an absolute privilege for all state employees.
    4. Libel and Slander — Public Servants — Scope op Employment— Qualified Privilege.
    All public servants acting within the scope of their employment do have a qualified privilege from liability for defamation when acting within the scope of that employment.
    5. Libel and Slander — Public Officials — School Board Members —School Principal — Governmental or Legislative Function — Absolute Privilege.
    A school board member, who performs a type of governmental or legislative function, is different than a school principal, who has no such function, for purposes of determining whether an absolute privilege from liability for defamation exists when performing within the scope of employment.

      6. Judgment — Summary Judgment — Motions—No Genuine Issue of Material Fact — Opposing Party.
    A party who opposes a motion for summary judgment which alleges that there is no material issue of fact and which is supported by affidavits or other documentation is required to respond with some evidentiary material rebutting the motion.
    7. Judgment — Summary Judgment — No Genuine Issue of Material Fact — Benefit of Doubt — Court Rules.
    The courts are liberal in finding that a "genuine issue” does exist when ruling on motions for summary judgment based on there being no genuine issue of material fact; in ruling on such motions (I) a court should give the benefit of any reasonable doubt to the party opposing the motion, and (2) before granting such motion the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome (GCR 1963, 117.2[3]).
    Dissent by Beasley, P. J.
    8. Libel and Slander — Malice—Issue of Fact.

      Malice is a concept or word of art in the law of libel; a fact issue regarding malice does not necessarily arise merely because a litigant claims that a statement was made with malice; whether malice actually exists sufficient to defeat a qualiñed privilege depends upon the occasion when the statement is made, the relationship between the maker of the statement and the person concerning whom it relates, to whom it is made and what the statement contains.

    9. Libel and Slander — Qualified Privilege — School Principal— Performance of Duties.

      A defendant in a libel action, who was a school principal, and whose duties included recommending disciplinary action for staff members when in her opinion their actions interfered with the educational process, had a very strong privilege from liability for libel in the performance of her duty; this privilege should not have been lost or defeated where the statement complained of contained only matters relevant and relating to plaintiff’s responsibilities as a school counselor and was limited to matters pertinent to the employment relationship between plaintiff, as a school counselor, and defendant, as a school principal, and where the statement was delivered by the defendant only to the regional superintendent to whom the defendant was obligated to deliver it as part of her employment responsibility.

      10. Libel and Slander — Summary Judgment — No Genuine Issue of Material Fact — Qualified Privilege — Malice—Lack of Good Faith.

      A defendant's motion, in a libel action, for summary judgment on the ground that there was no genuine issue of material fact should have been granted where the defendant was cloaked with a very strong qualiñed privilege and the plaintiff had introduced nothing to indicate actual malice or lack of good faith on the part of the defendant sufficient to deprive her of her privilege to express opinions, as required by her position as school principal, that might otherwise be actionable defamation.

      Ronald W. Crenshaw, for plaintiff.

      Miller, Klimist, Cohen, Martens & Sugerman, P. C. (by Stephen C. Cooper), for defendant.
    Before: Beasley, P. J., and Bashara and D. C. Riley, JJ.
   D. C. Riley, J.

Defendant appeals, by leave granted, denial of her motion for summary judgment. Plaintiff, a counselor in the Detroit Public School System, filed a libel suit alleging that she was defamed in a memorandum written by defendant, the principal of her school. Defendant, as part of her duties under a collective bargaining agreement, prepared recommendations for disciplinary action against staff members where circumstances demanded such action. The claimed libelous memorandum, written in the performance of defendant’s duty, ultimately was partially responsible for plaintiff’s transfer to another school.

Defendant moved for summary judgment on two grounds. First, she contended that the communication, which was written and processed in the course of her official duties, was absolutely privileged from liability for defamation. GCR 1963, 117.2(1). Second, assuming that only a qualified privilege was applicable, plaintiff had not alleged sufficient facts to raise the issue of malice, which would be required to overcome the privilege. GCR 1963, 117.2(3).

The trial court denied the motion, holding that the communication had only a qualified privilege and that plaintiff’s response to the claim of no material fact in issue had sufficiently put malice in issue. We will consider both of those decisions.

If absolute privilege applies, there can be no action for libel even if the information was false and maliciously and knowingly published. Tocco v Piersante, 69 Mich App 616; 245 NW2d 356 (1976). Because of this complete bar to defamation liability, the scope of absolute liability in Michigan law has traditionally been narrowly construed:

"It is the policy of the courts to keep the doctrine of absolute privilege within these narrow limits.
" 'Generally speaking, absolute privilege is confined to cases in which the public service or the administration of justice requires complete immunity from being called to account for language used. It applies more directly to matters of public concern, such as language used in legislative, judicial and executive proceedings; and it is not intended so much for the protection of those engaged in the service, as it is for the promotion of the public welfare.’ 36 C. J. pp. 1240, 1241.
"Our court recognizes the rule of absolute privilege, but it has repeatedly refused to extend its application beyond the necessities of the judicial, legislative, and military occasions. Mundy v Hoard, 216 Mich. 478 [185 NW 872 (1921)]; Bolton v Walker, 197 Mich. 699 [164 NW 420 (1917)] (Ann. Cas. 1918E, 1007); Trebilcock v Anderson, 117 Mich. 39 [75 NW 129 (1898)]; Wachsmuth v National Bank, 96 Mich. 426 [56 NW 9 (1893)] (21 L. R. A. 278).” Raymond v Croll, 233 Mich 268, 272-273; 206 NW 556 (1925).

See also Timmis v Bennett, 352 Mich 355; 89 NW2d 748 (1958).

Defendant’s action, while committed in the course of an official duty, does not fall within these classic limits of absolute privilege. In Tocco v Piersante, supra, this Court discussed at length the privilege to be afforded to a public employee acting in the course of his or her employment. In Tocco, the defendant, who headed the Organized Crime Division of the Michigan Attorney General’s office, was alleged to have libeled plaintiff by his participation in the production and showing of a documentary film on crime in Michigan. The defendant argued that his actions were protected by absolute privilege.

The Tocco Court began by reviewing the historical view of the scope of absolute privilege in Michigan. 69 Mich App at 628-629. The Court then discussed a line of Federal cases, in particular Spalding v Vilas, 161 US 483; 16 S Ct 631; 40 L Ed 780 (1896), and Barr v Matteo, 360 US 564; 79 S Ct 1335; 3 L Ed 2d 1434 (1959), in which absolute privilege had been extended to all Federal employees for publications within their particular lines of duty. The Court also noted similar rules in other states. See Matson v Margiotti, 371 Pa 188; 88 A2d 892 (1952).

Returning to Michigan law, the Court held that the Federal rule extending absolute privilege had not been adopted in this state:

"The question is whether a similar rule obtains in this jurisdiction. We hold that it does not and that defendant under the circumstances of this case, is entitled to a qualified, not an absolute, privilege.” 69 Mich App at 632.

The Court pointed out that previous cases had not applied absolute privilege to executive officials or employees acting in the scope of their employment. Citing Raymond v Croll, supra, the Tocco Court stated that an executive official has no absolute privilege unless engaged in activities of or relating to an administrative or legislative body, but does have a qualified privilege if acting under an official duty. 69 Mich App at 634-635.

In the case at bar defendant was not acting in any judicial or legislative capacity when she wrote the allegedly libelous memorandum. Her duty related solely to employment and supervision procedures within the school system. Since she was acting in her official capacity, she does have a qualified privilege, as do all public servants acting within the scope of their employment:

"A qualified privilege affords sufficient protection in most instances for the public servant while at the same time it does not discourage uninhibited robust and wide-open debate on important public issues.” Stewart v Troutt, 73 Mich App 378, 390; 251 NW2d 594 (1977) (D. E. Holbrook, J., concurring).

We do not believe that the opinion in Brunn v Weiss, 32 Mich App 428; 188 NW2d 904 (1971), calls for a different result. In Brunn, several teachers claimed that they were libeled in a newsletter published by the defendant school board members. One of the defendants’ contentions was that the newsletter was absolutely privileged. The Court stated that although under certain conditions (without specifying those conditions) a school board member would have an absolute privilege, there was only a qualified privilege for publication of the newsletter.

Brunn, supra, is distinguishable from the case at bar in that a school board member, who performs a type of governmental or legislative function, is different than a school principal, who has no such function. No cases have been cited to this Court in which the official functions of a person similarly situated to defendant have been protected by an absolute privilege.

Having decided that a qualified privilege applies, the issue becomes whether the trial court erred in ruling that a material issue of fact existed on whether defendant maliciously published the memorandum. When a motion for summary judgment alleging no material issue of fact, with supporting affidavits or other documentation, is brought under GCR 1963, 117.2(3), the opposing party is required to respond with some evidentiary material rebutting the motion. Trombetta v Detroit, T & I R Co, 81 Mich App 489; 265 NW2d 385 (1978). Plaintiff here eventually responded to the motion with affidavits and letters, but defendant alleges that these documents were not relevant to the issue of malice.

The appropriate standards for use in ruling on a motion for summary judgment under GCR 1963, 117.2(3) are stated in Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973):

"The courts are liberal in finding that a 'genuine issue’ does indeed exist. As Honigman & Hawkins correctly comments, (1) the court will 'give the benefit of any reasonable doubt to the opposing party’ and (2) 'the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. ’ ” (Emphasis in 389 Mich.)

It is true, as defendant asserts, that the material filed in opposition to the motion reflected basically on plaintiffs character, and not on defendant’s mental state at the time she published the memorandum to her supervisors. However, these documents do tend to refute, or at least cast doubt upon, the accuracy of the allegations contained in the original memorandum. Under the liberal standard as expressed in Rizzo, supra, we do not find that the trial court erred in ruling that the evidence presented a factual issue as to .whether defendant maliciously communicated false information. See Iacco v Bohannon, 70 Mich App 463; 245 NW2d 791 (1976).

Affirmed. Costs to appellee.

Bashara, J., concurred.

Beasley, P. J.

(dissenting). I respectfully dissent.

In the within case, defendant, a school principal, had the responsibility of recommending disciplinary action for staff members when, in her opinion, their actions interfered with the educational process. Pursuant to that duty, defendant wrote a memorandum recommending disciplinary action against plaintiff and delivered the memorandum personally to the school official who was designated under the collective bargaining agreement to receive it. Defendant did not communicate the memorandum to any other person. The memorandum was based upon personal observations of the defendant and upon reports about the plaintiff which the defendant allegedly received from school employees, students and parents.

The relationship between the parties, taken together with an occasion where defendant was obligated to and could properly express an opinion regarding plaintiff’s performance, gives rise to a privilege in the defendant to make an expression which might conceivably otherwise be defamatory and actionable. The fact that defendant was carrying out the essential function of her job and performing her duty, the fact that she was expressing an opinion that she was required to give and the fact that there was not any excessive publication of it, indicate to me that as long as she stayed within the "outer perimeter” of her duties, her privilege protected her against libel or slander claims. Some cases would say that the privilege may be lost if the expression is made with "actual malice”, that is, with knowledge that it was false or with reckless disregard of whether it was true or not. In this connection, I would note that the expression made by defendant was one of opinion clearly within the scope of her employment; the fact that her statement was intemperate and unprofessional, although perhaps reflecting on the administrative capability of the maker, is not determinative of the legal issue. I would also note that the allegations made by plaintiff in her complaint and in her answer to the motions for summary judgment and for rehearing, are not of sufficient magnitude or of a quality to support a finding of actual malice.

The issue here is whether plaintiff offers or asserts facts from which an inference of actual malice may arise. Malice is a concept or word of art in the law of libel. A fact issue regarding malice does not necessarily arise merely because a litigant asserts a statement was made with malice. Whether actual malice exists sufficient to defeat a qualified privilege depends upon the occasion when the statement is made, the relationship between the maker of the statement and the person concerning whom it relates, to whom it is made and what the statement contains. The statement complained of contains only matters relevant and relating to plaintiff’s responsibilities as a school counselor; it is limited to matters pertinent to the employment relationship between plaintiff as a school counselor and defendant as a school principal. The issue is not whether the defendant’s opinion of plaintiff’s performance is correct or even whether allegations in the statement are true, e.g., whether it is true that plaintiff refused to stay after school hours to meet with parents. As indicated, the statement was delivered by defendant only to the regional superintendent to whom defendant was obligated to deliver it as part of her employment responsibility.

While, in terms of technical terminology, the Michigan cases would not deem this privilege to be absolute, it is, nevertheless, in the circumstances of this case, a very strong privilege and, although qualified or conditional, it is not easily lost or defeated.

In responding to defendant’s motion for summary judgment under GCR 1963, 117.2(3), plaintiff filed letters of various interested persons attesting to plaintiffs good personal qualities, habits of hard work, including overtime efforts and her reputation as a successful, able teacher. While these documents pose an issue for the school administration as to the merits of the charges defendant makes against plaintiff, they do not indicate actual malice or lack of good faith on the part of defendant, sufficient to deprive her of her privilege to express opinions that might otherwise be actionable defamation.

For purposes of this opinion, I take as true the statements and expressions of opinion utilized by plaintiff in her answer to defendant’s motion for summary judgment and motion for reconsideration of the trial court’s ruling on the motion for summary judgment. Even when so considered, no sufficient claim of actual malice is made.

Under these circumstances, determination of whether the privilege extends to the statement complained of was for the judge. Plaintiffs complaint and her counteraffidavits do not, as a matter of law, indicate the presence of actual malice. Thus, on this record, defendant’s statement was privileged as a matter of law.

In view of this conclusion, it is unnecessary to analyze whether, in this case, defendant’s statement was constitutionally protected under the Federal First and Fourteenth Amendments from a state libel action.

Consequently, for these reasons, I would hold that under the circumstances of this case, defendant possessed a privilege to make the written expressions that are complained of, and the trial court should have granted defendant’s motion for summary judgment.

As a matter of fact, any other result would cause an intolerable situation in the public schools where persons in authority could not exercise their judgment and do the jobs for which they are appointed without being subjected to the expense and time of trial on the merits before a jury to defend claims of slander and libel. Í would also note that plaintiff has plenty of other remedies by way of the state tenure statute and under the collective bargaining contract that apparently exists in this school district to gain redress of any grievances that may be caused her.

I would vote to reverse the trial court and to grant the motion for summary judgment with costs.

       In Schlinkert v Henderson, 331 Mich 284; 49 NW2d 180 (1951), a statutory privilege applied which is not present in the case at bar. The Court in Powers v Vaughan, 312 Mich 297; 20 NW2d 196 (1945), held that if an absolute privilege applied, it was only because the official was involved in a quasi-judicial or quasi-legislative activity.

       Plaintiff had pled malice in her original complaint.

        Bacon v Michigan Central R Co, 66 Mich 166, 170; 33 NW 181 (1887), states:
      "Qualified privilege exists in a much larger number of cases. It extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty.”

        Lawrence v Fox, 357 Mich 134; 97 NW2d 719 (1959), Bostetter v Kirsch Co, 319 Mich 547, 556-557; 30 NW2d 276 (1948).

        Bacon v Michigan Central R Co, supra. Also, Anno: Libel and Slander: actionability of statements imputing inefficiency or lack of qualification to public school teacher, 40 ALR3d 490, 502 and cases cited therein.

       53 CJS, Libel and Slander, pp 158-160, citing Fortney v Stephan, 237 Mich 603; 213 NW 172 (1927), and other cases.

       Truth is always a defense to alleged libel. But truth is a fact issue and we have here only an issue of the propriety of denial of a motion for summary judgment based upon a claim that there is no genuine issue of material fact. The truth or untruth of the statements, which are not mere expressions of opinion, becomes relevant here, only if plaintiffs claims in her pleadings and in her affidavits are sufficient as a matter of law to give rise to an issue of actual malice or of lack of good faith. For the reasons indicated, neither the issue of actual malice nor of good faith arises on this record. See, Fortney v Stephan, supra, p 610.

        Brunn v Weiss, 32 Mich App 428; 188 NW2d 904 (1971), Bacon v Michigan Central R Co, supra.

       Typical of these Federal cases are New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964), and Rosenblatt v Baer, 383 US 75; 86 S Ct 669; 15 L Ed 2d 597 (1966).


author: Beasley, P. J.

text:
    PEOPLE v SHEARS
    Docket No. 77-176.
    Submitted May 10, 1978, at Lansing.
    Decided June 19, 1978.
    Patrick D. Shears was convicted of forgery and uttering and publishing in Washtenaw Circuit Court, William F. Ager, Jr., J. Defendant appeals and claims that he was charged under the wrong forgery and uttering and publishing statutes. Held:

    It is not possible for a prosecutor to pick and choose under which forgery and uttering and publishing statute he will prosecute; the statutes are different and he is required to charge under the statute which fits the facts. It is reversible error to charge a defendant under the wrong statute.
    Reversed.
    Forgery — Uttering and Publishing — Indictment and Information —Prosecutor’s Election — Appeal and Error — Statutes.
    Under the statutes on forgery and uttering and publishing, properly construed, it is not possible for the prosecutor to pick and choose under which statute he will prosecute; prosecutors are required to charge under the statute which fits the facts and to charge a defendant under the wrong statute results in reversible error (MCL 750.248, 750.249, 750.250, 750.253; MSA 28.445, 28.446, 28.447, 28.450).
    References for Points in Headnote
    36 Am Jur 2d, Forgery §§ 20, 39.
    41 Am Jur 2d, Indictments and Informations § 226.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and James S. Sexsmith, Senior Assistant Prosecuting Attorney, for the people.

      Matuszak & Stillwagon, for defendant on appeal.

      Before: Beasley, P. J. , and Allen and H. E. Deming, JJ.

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

   Beasley, P. J.

Defendant was convicted by a jury of forgery in violation of MCL 750.248; MSA 28.445 and uttering and publishing in violation of MCL 750.249; MSA 28.446. After sentence to a term not less than 4 years nor more than 14 years in prison, he appeals as of right.

. Defendant claims he was improperly charged: he says that since the instrument involved was a state-issued ADC check, he should have been charged under MCL 750.250; MSA 28.447 and MCL 750.253; MSA 28.450, which statutes carry a lesser maximum prison sentence. The issue was raised in the trial court both before and during trial; therefore, the issue is properly preserved for appellate review.

Specifically, defendant says MCL 750.250; MSA 28.447 makes it a felony to forge a warrant or other instrument issued by the state treasurer and that MCL 750.253; MSA 28.450 makes it a felony to utter or pass any forged note or certificate for any debt of the state knowing the same to be forged with intent to defraud. He says the state ADC check in question comes exclusively under MCL 750.250; MSA 28.447 and MCL 750.253; MSA 28.450, and not under the statutes he is charged and convicted of violating. He concludes an instrument comes under §§ 248 and 249 or under §§ 250 and 253, but cannot come under both.

This issue is controlled by People v Hall, 391 Mich 175; 215 NW2d 166 (1974). In that case, the Court distinguished the general provisions of § 248 from the provisions of § 250 which are limited to state instruments and upheld the constitutionality of the difference in penalties. We interpret People v Hall to require prosecutors to charge under the statute which fits the facts. In fact, the Court said:

"It is not possible under these statutes, properly construed, for the prosecutor to pick and choose under which statute he will prosecute. The items set forth in § 250, et seq. are indictable solely under those sections, and not under §§ 248 and 249.” People v Hall, supra, p 190.

Clearly, the state-issued ADC check comes under §250.

Similar reasoning applies to § 249 which proscribes uttering and publishing in general while § 253 covers uttering and publishing of state issued instruments. On the facts of this case, it was error to charge defendant under §§ 248 and 249 and to sentence him thereunder.

In so ruling, we recognize that the Hall Court said that part of the rationale for the decision was nonnegotiability of state-issued instruments. The Hall Court declined to decide the effect of the UCC. Perhaps, the Supreme Court will desire to give consideration to the fact that the cited section of the UCC appears to give the quality of negotiability to state-issued instruments. Until the Supreme Court does, it would be presumptuous of this Court to seem to attribute a different meaning to Hall than its plain language suggests.

Reversed.

       MCL 440.3104; MSA 19.3104, which sections are referred to in footnote 9 on page 198 of People v Hall, supra.


author: Bronson, J.

text:
    PEOPLE v RICHMOND
    Docket No. 77-590.
    Submitted March 7, 1978, at Detroit.
    Decided June 19, 1978.
    Dorian M. Richmond was convicted of armed robbery, Wayne , Circuit Court, Irwin H. Burdick, J. At trial the defendant was identified as the perpetrator of the crime by three employees of the supermarket which had been robbed. The same three witnesses had identified the defendant earlier from a photographic array. The defendant appeals asserting error in that counsel was not present at the photographic identification and in that the in-court identification was tainted by the pretrial procedure. Held:

    The defendant was not entitled to counsel at the photographic identification showup because it was used only to determine whether or not the defendant was a suspect. The physical differences of the persons depicted in the showup and the use of three different pictures of the defendant did not make the showup impermissibly suggestive. There was a sufficient basis for the in-court identification independent of the photographic procedure.
    Affirmed.
    1. Criminal Law — Right to Counsel — Photographic Showup — Focus op Investigation.
    A defendant was not entitled to counsel at a photographic identification procedure where the defendant was not in custody and the police investigation had not focused on the defendant at the time.
    2. Criminal Law — Photographic Showup — Fairness—Suggestiveness.
    The fairness of a photographic identification procedure is to be evaluated from the totality of the circumstances; the test is the degree of suggestion inherent in the manner of displaying the suspect’s photograph to the witness.
    References for Points in Headnotes
    [1-4] 21 Am Jur 2d, Criminal Law §§ 368, 369.
    [5, 6] 29 Am Jur 2d, Evidence §§ 371-373.

      3. Criminal Law — Photographic Showup — Physical Differences— Suggestiveness.
    The showing at a photographic identification procedure of photographs of persons with physical differences from a defendant cannot be said to constitute impermissible suggestiveness as a matter of law.
    4. Criminal Law — Photographic Showup — Multiple Pictures of Defendant — Suggestiveness.
    It is not impermissibly suggestive to show several different pictures of a defendant along with pictures of other individuals at a photographic identification procedure.
    5. Criminal Law — Evidence—In-Court Identification — Pretrial Photographic Showup — Independent Basis — Clear and Convincing Evidence.
    A conviction based on an in-court identification which is allegedly tainted by a suggestive pretrial photographic identification procedure should be reversed unless an independent basis for the in-court identification can be shown by clear and convincing evidence.
    6. Criminal Law — Witnesses—Identification—Improper Procedure — Independent Basis.
    The eight factors to be used in determining whether an independent basis exists for an in-court identification of a defendant by a witness where the identification is alleged to be tainted by a pretrial identification procedure are: (1) prior relationship with or knowledge of the defendant, (2) opportunity to observe the offense, (3) length of time between offense and disputed identification, (4) accuracy of prior descriptions and actual description, (5) previous identification or failure to identify defendant, (6) previous identification of another person as defendant, (7) witness’s emotional condition at time of alleged crime and (8) idiosyncratic or special features of defendant.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Neis Olson, Assistant Prosecuting Attorney, for the people.
    Dorian M. Richmond, in propria persona.

      Before: R. B. Burns, P. J., and Bronson and D. F. Walsh, JJ.
   Bronson, J.

Defendant was convicted by a jury, on December 9, 1976, of armed robbery, MCL 750.529; MSA 28.797. He was charged with robbing a Dearborn supermarket. Several store employees were present at the time of the robbery. They were shown a photographic array shortly after the robbery and before defendant’s arrest. After his arrest, defendant was identified at a lineup by three witnesses. He was also identified at trial by the same witnesses as the robber. Defendant appeals of right, raising three issues relating to the photographic identification.

Defendant first asserts that he should have been represented by counsel at the photo identification, because he was either in custody or the focus of an investigation. See People v Anderson, 389 Mich 155; 205 NW2d 461 (1973), People v Cotton, 38 Mich App 763; 197 NW2d 90 (1972). See, also, People v Kachar, 400 Mich 78; 252 NW2d 807 (1977).

The record discloses that defendant was not in custody at the time of the photo identification. Furthermore, police had not yet focused on defendant at that time; both defendant and another individual who was the registered owner of the getaway vehicle were suspects. At that time, nothing other than a link to the vehicle involved in the robbery implicated defendant. The facts of this case indicate that the police did not use the photographic showup in an attempt to build a case against defendant, but were then concerned with either establishing or ruling out defendant as a suspect. See People v Kachar, supra, at 89, quoting People v Cotton, supra. We conclude that the investigation had not focused on defendant at the time of the photo identification. Consequently, he was not entitled to counsel at that identification procedure.

Defendant also contends that the photographic identification procedure was impermissibly suggestive in two respects: first, the persons depicted were not all physically similar and, second, of the five to seven photographs displayed, there were as many as three different pictures of defendant.

An identification procedure’s fairness is to be evaluated from the totality of the circumstances; the test is the degree of suggestion inherent in the manner of displaying the suspect’s photograph to the witness. People v Lee, 391 Mich 618; 218 NW2d 655 (1974). We cannot say as a matter of law that the physical differences of the depicted persons constituted impermissible suggestion. See People v Flippo, 70 Mich App 652; 247 NW2d 321 (1976), People v Mitchell, 61 Mich App 153; 232 NW2d 340 (1975). See, generally, Anno: Admissibility of evidence of photographic identification as affected by allegedly suggestive identification procedures, 39 ALR3d 1000. Similarly, we do not find that showing different pictures of defendant along with pictures of other individuals was impermissibly suggestive, although a better procedure would have been to show a smaller proportion of pictures of defendant by increasing the total number of photographs shown. See Simmons v United States, 390 US 377; 88 S Ct 967; 19 L Ed 2d 1247 (1968). We therefore find that the photographic array was not impermissibly suggestive. However, even assuming it was suggestive, reversal is not automatically required.

A conviction based on an in-court identification which is allegedly tainted by a suggestive pretrial photographic identification must be reversed unless an independent basis for the in-court identification can be shown by clear and convincing evidence. Manson v Brathwaite, 432 US 98; 97 S Ct 2243; 53 L Ed 2d 140 (1977), Simmons v United States, supra, People v Kachar, supra.

Kachar listed eight factors to be used in determining whether an independent basis exists. Applying these factors to the three employees who identified defendant, we find a sufficient basis for identification independent of the photographic procedure:

1. Prior relationship with or knowledge of the defendant. There is no evidence that the witnesses saw defendant before the evening of the robbery.

2. Opportunity to observe the offense. The manager saw the robber for five to ten minutes in the office during the course of the robbery. The office was apparently well lighted. The cashier saw defendant for approximately 25 seconds at a distance of 30 feet. The stock boy who made the identification watched the man for about five minutes.

3. Length of time between offense and disputed identiñcation. The manager made the photo identification the day after the robbery. The cashier and the stock boy made the identification approximately five days after the robbery.

4. Accuracy of prior descriptions and actual description. The detailed prior descriptions by the manager and the stock boy corresponded closely to. defendant’s description. The cashier’s description, while less detailed, was also similar to defendant’s actual description.

5. Previous identiñcation or failure to identify defendant. The photographic identification was the first identification made. Subsequently, defendant was identified positively at a lineup by all three witnesses.

6. Previous identiñcation of another person as defendant. None.

7. Witness’s emotional condition at time of alleged crime. There is nothing in the record regarding the emotional condition of the cashier and stock boy. However, the manager was described as being scared.

8. Idiosyncratic or special features of defendant. The robber’s black purse drew attention to him on the evening of the robbery; however, there were apparently no distinguishing physical features of either the robber or defendant.

As each witness had an independent basis for identifying defendant, we cannot say that there was "a very substantial likelihood of irreparable misidentification”. Manson v Brathwaite, supra, at 105, n 8, quoting Simmons v United States, supra, at 384.

Aifirmed.

       In particular, defendant contends that the photographs depicted persons with different complexions, that some of those pictured had facial hair while defendant was clean shaven and that the pictures were not all of the same size.

       In Simmons, the Court held that a photo identification procedure by which police displayed at least six group pictures in which the suspect was part of several groups did not irreparably taint the subsequent identification at trial. The Court did note that it would have been preferable to show a greater number of photos and proportionally fewer pictures of the suspect. Simmons v United States, supra, at 385-386, n 6.

        Manson v Brathwaite, supra, held that the same test applies to both in-court identifications and evidence of out-of-court identifications. Id. at, at 106-107, n 9.


author: Bronson, J. M. J. Kelly, J.

text:
    PEOPLE v DORTCH
    Docket No. 77-721.
    Submitted October 6, 1977, at Grand Rapids.
    Decided June 19, 1978.
    Leave to appeal applied for.
    Johnny Dortch was convicted of first-degree murder and conspiracy to commit murder in Berrien Circuit Court, Julian E. Hughes, J. The testimony of witness Terry Langford was the only evidence against the defendant. At defendant’s preliminary examination, Langford testified that he agreed with defendant to kill his illegitimate son for $1,000 and thereafter did murder the son and his mother. At trial, he testified that he didn’t recall any events on the day of the crime. The trial court ruled that Langford’s preliminary examination testimony could be read into evidence. The question on appeal is whether this evidence was admissible. Held:

    1. The preliminary examination testimony of a witness who has changed his testimony and repudiated his prior statement is not admissible where the witness is available for trial.
    2. Statements against penal interest are not admissible where the declarant is available for trial and the testimony is not against his interests.
    Reversed.
    M. J. Kelly, J., dissented. He would hold that controlling precedent at the time of the trial provided that prior recorded testimony and prior inconsistent statements of an adverse witness who had changed his testimony after the trial had begun was admissible for impeachment purposes and that preliminary examination testimony should be allowed at a later trial where the recalcitrant witness is available, in court, and can be confronted with his prior testimony.
    Opinion of the Court
    References for Points in Headnotes
    [1-4, 6] 21 Am Jur 2d, Criminal Law §§ 343, 344, 367.
    Mode of proof of testimoney given at former examination, hearing, or trial, 11 ALR2d 30.
    [5] 20 Am Jur 2d, Courts §§ 82-86.

      1. Witnesses — Criminal Law — Prior Testimony — Hearsay—Admis-
    sibility — Failure to Produce — Mentally Incompetent. Preliminary examination testimony by statute is inadmissible hearsay at a later trial unless a witness cannot be produced or is mentally incapable of testifying; precedent cases have expanded the reading of the statute to include an exception where there is refusal to testify, invocation of the Fifth Amendment by a witness, recalcitrant witnesses, and lack of memory (MCL 768.26; MSA 28.1049).
    2. Witnesses — Criminal Law — Prior Testimony — Hearsay—Admissibility — Availability for Trial.
    The preliminary examination testimony of a witness is not admissible under the prior testimony exception to the hearsay rule of unavailability or mental incompetence where the witness is available for trial although he has changed his testimony and repudiated his prior statement.
    3. Witnesses — Criminal Law — Statements Against Interest— Hearsay — Admissibility—Availability—Availability for Trial.
    Statements against penal interest are admissible as an exception to the hearsay rule where the declarant is unavailable for trial; however, these statements are not admissible and the penal interest exception does not apply where the declarant is available for trial and the testimony is not against the interests of the witness.
    Dissent by M. J. Kelly, J.
    4. Witnesses — Criminal Law — Prior Testimony — Admissibility— Adverse Witness — Impeachment.

      Admitting at a later trial the preliminary examination testimony of a witness who has changed his testimony was not error where the rule then in effect provided: where a witness has promised to testify for a party in accord with testimony given at a previous trial, thereby inducing the calling party to rely thereon, and has informed the calling party of a change in intentions after the trial has begun, if the trial judge determines such witness to be adverse at the time he takes the stand, the calling party may introduce the prior recorded testimony and prior inconsistent statements of the witness for impeachment purposes.

      5. Trial — New Rules- — Prospective Application.

      The pronouncement of new rules for the trial of cases should be made prospectively to the legal community.

    6. Witnesses — Criminal Law — Prior Testimony — Admissibility— Availability — Availability for Trial.

      The preliminary examination testimony of a witness who has changed his testimony should be allowed at a later trial where the recalcitrant witness is available, in court, and may be confronted with his prior testimony.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John A. Smietanka, Prosecuting Attorney, and Charles W. Dunñeld, Assistant Prosecuting Attorney, for the people.

      Keller, Keller, Creager, Kosick & Rochau, for defendant on appeal.
    Before: M. F. Cavanagh, P. J., and Bronson and M. J. Kelly, JJ.
   Bronson, J.

Defendant was convicted on February 13, 1976, by a jury of first-degree murder, MCL 750.316; MSA 28.548, and conspiracy to commit murder, MCL 750.157a; MSA 28.354(1). He appeals of right raising one issue.

The testimony of Terry Langford was the only evidence against defendant. At defendant’s preliminary examination, Langford testified that he was contacted by defendant and offered $1,000 to kill defendant’s son in a scheme to collect life insurance proceeds. Langford described how he picked up defendant’s illegitimate son and his mother on a pretense of delivering money from Dortch, took them to an isolated area and shot them both twice with a sawed-off shotgun. Langford testified as part of a plea bargain in which he was allowed to plead guilty to second-degree murder, with a recommended sentence of 20-40 years.

At trial, Langford testified that he did not recall any events on the date of the crime. The prosecution moved to introduce Langford’s preliminary examination testimony as substantive evidence. The trial court ruled that the motion was premature because defense counsel had not had the opportunity to cross-examine Langford. On cross, Langford denied the killing, the conspiracy and the truth of his prior testimony, but did not testify as to anything else. The trial court then ruled that the preliminary examination testimony could be read into evidence. The importance of Langford’s preliminary examination testimony is illustrated by the trial judge’s comment in ruling on defendant’s motion for directed verdict that, absent Lang-ford’s preliminary examination testimony, he would have directed a verdict for defendant.

It is not disputed that the preliminary examination testimony was hearsay. See Ruhala v Roby, 379 Mich 102; 150 NW2d 146 (1967). Thus, the question before us is whether the testimony is admissible under some exception to the hearsay rule.

MCL 768.26; MSA 28.1049 provides:

"Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify.”

Although this statute, by its terms, only allows into evidence prior testimony when the witness cannot be "produced”, or is "mentally incapable” of testifying, cases interpreting it have given it an expansive reading. See, e.g., People v Goldman, 349 Mich 77; 84 NW2d 241 (1957) (refusal to testify), People v Pickett, 339 Mich 294; 63 NW2d 681 (1954) (witness invoked Fifth Amendment), People v Walton, 76 Mich App 1; 255 NW2d 640 (1977) ("recalcitrant” witness); People v Thomas, 61 Mich App 717; 233 NW2d 158 (1975) (lack of memory), People v Szeles, 18 Mich App 575; 171 NW2d 550 (1969) (refusal to testify).

However, People v White, 401 Mich 482; 257 NW2d 912 (1977), decided after trial in the case at bar, alters our perspective. In White, Charles Hodges, a codefendant who pled guilty and testified at the defendant’s first trial, was called by the prosecutor at the defendant’s second trial. At that trial, Hodges began by stating that he could not remember his earlier testimony. After the prior testimony was read to refresh his memory, Hodges testified that his prior testimony was a lie. The Court held that the prior testimony was not admissible under the prior testimony exception to the hearsay rule; Hodges was not "unavailable”, he had simply changed his testimony.

A similar scenario evolved in the case at bar. Langford, on direct examination, indicated a lack of memory concerning events on the days in question. The prosecutor moved to admit Langford’s prior testimony as substantive evidence, but the trial judge deferred ruling on the motion until after cross-examination of Langford. On cross, the only testimony evoked was Langford’s assertion that the prior testimony was not the truth and his denial that he committed the killings or conspired to commit them. The trial judge then ruled the prior testimony admissible.

The rationale of White mandates reversal in the case at bar. Had Langford’s testimony consisted solely of a professed loss of memory, his prior testimony would have been admissible. See People v Thomas; supra; MRE 804(b)(1). However, here, as in White, the witness eventually changed his testimony and repudiated his prior statement. We are compelled by White to hold that Langford was not "unavailable” for purposes of the former testimony exception to the hearsay rule.

We also hold that Langford’s testimony was not an admissible statement against interest. See Peo pie v Ernest Edwards, 396 Mich 551; 242 NW2d 739 (1976).

In Edwards, the Court held that statements against penal interest are admissible as an exception to the hearsay rule where the declarant is unavailable for trial. The Court’s rationale was that such evidence is inherently reliable and should be admitted when necessary. In the case at bar, Langford’s former testimony was given as part of a bargain in which he was allowed to plead guilty to second-degree murder and granted immunity from prosecution. As a result of the favorable bargain, Langford’s testimony was not against his interests; it was in his interest to testify as he did. Because the statement was not so far against Langford’s interest that a reasonable person would not make it unless it were true, it lacked the requisite indicia of reliability upon which the exception is based. Therefore, the testimony was not admissible under the Edwards exception.

Additionally, the statement against penal interest exception requires the declarant to be unavailable for trial. People v Edwards, supra; MRE 804(b)(3). As we held above, because Langford changed his testimony at trial, he was "available”. The penal interest exception therefore does not apply. Langford’s prior testimony was inadmissible hearsay. Defendant’s conviction must therefore be reversed.

M. F. Cavanagh, P. J., concurred.

M. J. Kelly, J.

(dissenting).

Recent History

In People v White, 401 Mich 482; 257 NW2d 912 (1977), on which the majority relies, the self-confessed murderer, twice convicted, twice reversed, sought the shelter of the exclusionary rule, preMiranda, regarding involuntary confessions. Three separate recorded confessions plus one broadcast on network TV were suppressed. The officer’s testimony that he found the loot after "conversations with” defendant and his accomplice was likewise suppressed. This in spite of the high court’s opinion that an incriminating statement made by the defendant to a newsman and broadcast on television for the world to see "would in most cases, weigh heavily in favor of a conclusion of voluntariness”.

The defense produced witnesses that defendant and the victim were friends. In rebuttal the people produced contrary hearsay evidence. In construing the • people’s rebuttal as error the defense was unchallenged for bringing immaterial, collateral, conclusionary evidence inviting the error.

It seems anomalous that harmless error was not invoked or discussed. Does it signify a consensus which repudiates the harmless error rule? GCR 1963, 529.1.

Johnny Dortch was convicted on the preliminary examination testimony of Terry Langford, the killer-for-hire. Adoise White was convicted on the prior trial testimony of his accomplice Charles Hodges. In each case the accomplice had second thoughts after a plea bargain and repudiated his former testimony. The applicable law until White’s third and last reported opinion governed Dortch’s trial. That was People v White, 65 Mich App 56; 236 NW2d 583 (1975) (hereinafter White #2), released four months before Dortch was tried. The trial court was bound by the rule that:

"Where a witness has promised to testify for a party in accord with testimony given at a previous trial, thereby inducing the calling party to rely thereon, and has informed the calling party of a change in intentions after the trial has begun, if the trial judge determines such witness to be adverse at the time he takes the stand, the calling party may introduce the prior recorded testimony and prior inconsistent statements. of the witness for impeachment purposes.” 65 Mich App at 62.

What was at hand in the White case and what is at hand in this case was in-court sworn testimony, where the defendant was confronted by the witness and represented by an attorney who was allowed and undertook cross-examination. The proofs appear to show beyond all doubt that Adoise White and Charles Hodges tied Robert Green’s hands behind his back, stabbed and slashed him 42 times, and shot him at the base of the head as a result of which he expired. The proofs here show beyond reasonable doubt from this record that Johnny Dortch hired Terry Lang-ford to kill and murder seven-year-old Johnny Freeman by shotgun or otherwise for insurance proceeds, and that Langford did so, throwing in the execution of Brenda Freeman to eliminate a witness.

The present Michigan rule of evidence, MRE 801, Hearsay; Definitions, says:

"(d) Statements which are not hearsay. A statement is not hearsay if—
"(1) Prior statement of witness. The declarant testified at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving him * * *

The rules of evidence were taken verbatim from the Federal Rules of Evidence when proposed. The Federal rule follows:

"(d) Statements which are not hearsay. A statement is not hearsay if—
"(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him * * * »

Somewhere along the line the committee or the Supreme Court eliminated clauses (A) and (B). So far as one can determine White #2, supra, was not considered or discussed, or if considered and discussed was not mentioned. Did the committee foresee the reversal of 65 Mich App 56 by the Supreme Court or did the Supreme Court become convinced by its consideration of White #2, supra, that the Federal rule was too broad? It would appear that Justice Ryan’s restrictive view was adopted. What is admissible under the Federal rule is prohibited under that too narrow view. The result favors the recalcitrant witness.

In this case Terry Langford took the witness stand and operated his forgettery. He didn’t recall anything. The trial court allowed defense counsel to cross-examine him and defense counsel elicited the testimony that Langford did not kill the Free-mans, there was no conspiracy, and his prior testimony was incorrect, was wrong, was a lie. The trial judge allowed the preliminary examination testimony under MCL 768.26; MSA 28.1049. To do otherwise would have condoned perjury and sanctioned a miscarriage of justice.

The trial judge made a reasonable and legally applicable decision in the instant case. There was no error, harmless, or otherwise. The rule of the Court of Appeals in White #2, supra, was followed. It would be ludicrous to argue that the Supreme Court White, supra, did not change the law. Neither could retroactivity be supported. The Federal rule would have to be unconstitutional to support that logic. The pronouncement of new rules for the trial of cases should be made prospectively to the legal community, otherwise a trial takes on the aspects of a shell game.

Past History

In People v Pickett, 339 Mich 294; 63 NW2d 681; 45 ALR2d 1341 (1954), the learned Justice George E. Bushnell writing for a unanimous Court discussed the question of the admission of prior testimony of a state witness, vis-a-vis the right of confrontation and due process of the Sixth and Fourteenth Amendments to the United States Constitution and the comparable provisions in the Michigan Constitution (1908), then cited the statute which is the focal point of this controversy. The statute is the same word-for-word as it was then. MCL 768.26 (formerly 1948 CL 768.26); MSA 28.1049:

"Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify.”

The witness Arney had testified a number of times before the grand jury and he had given testimony at the preliminary examination under a grant of immunity. At the Pickett trial however he advised the court that he was going to refuse to testify on his Fifth Amendment rights and questioned the validity of the prior grant of immunity. This on advice of counsel. Procedurally the method used was capsulized by Justice Bushnell:

"Arney’s counsel stated that in the event the court should overrule his or his client’s objection, that he had advised Arney to refuse to testify and take the position that he would test the validity of the court’s ruling on the contempt proceeding which might follow. The jury was then recalled, Arney was sworn and questioned to the point of refusal. The jury was excused and the court ruled that the. immunity order adequately protected the witness and ordered him to proceed to answer. Arney and his attorney refused to respect the ruling. The ensuing colloquy was concluded by the court with the statement: 'Well, is there anything either side thinks should be done further in the presence of the jury now?’ The record shows that to this question there was no response.

"The people then stated that they would offer in evidence the transcript of Arney’s testimony at the examination. The defendants objected, raising the question of the right of confrontation, and stated that the witness was available. The court overruled this objection, recalled the jury and explained to it that upon Arney’s refusal to testify, his testimony given at the examination in the cause had thereby become admissible.” 339 Mich at 304.

Thereafter the preliminary examination testimony was read to the jury by the prosecutor. Justice Bushnell couched the question in terms of a recalcitrant witness who had taken the Fifth Amendment after having previously been granted immunity. Obviously this is not the precise question before us because we do not have the immunity grant situation. However if availability is the key to the door of prior testimony then we have the following from Justice Bushnell:

"Availability in the sense used by Gillespie must be broadly construed in the context in which it is found. This word does not mean physical presence alone, but is definitive of 'having sufficient force or efficacy for the object,’ which object in this instance is the attainment of justice through the admission of the witness’s former testimony.
"The statute which permits the use of former testimony authorizes that use by the prosecution, 'whenever the witness giving such testimony cannot, for any reason, be produced at the trial.’
Under the facts recited, Arney, by invoking the privilege against self-incrimination, although having been granted immunity, made himself as 'unavailable’ as if he were deceased or absent from the jurisdiction.
"Defendants, of course, had the constitutional right to be confronted by the witness. This right was accorded them at the preliminary examination when they had ample opportunity to cross-examine Arney who was there a witness confronting them. They may not be heard now to complain on this ground. People v. Schepps, 217 Mich 406 [186 NW 508] (21 ALR 658) [1922], In re Rudnik, 338 Mich 577 [61 NW2d 597 (1953)], People v. Myers, supra, [239 Mich 105; 214 NW 130 (1927)], People v. Moore, supra, [306 Mich 29; 10 NW2d 296 (1943), cert den, 321 US 787; 64 S Ct 783; 88 L Ed 1078 (1944)], People v. Hunley, supra, [313 Mich 688; 21 NW2d 923 (1946)], and People v. Johnston, supra, [328 Mich 213; 43 NW2d 334; 20 ALR2d 1001 (1950)].
"This Court has never departed from the rule that the constitutional rights of an accused are not abridged where the accused at any stage of the proceedings, upon the same accusation, has been once confronted by the witness against him, with an opportunity to cross-examine that witness. 1 Gillespie, Michigan Criminal Law & Procedure (1st ed), § 474, p 581.” 339 Mich at 306.

Note that the immunity question slides out of focus. Why should it not? How is the immunity of the witness important to the constitutional rights of the defendant? The opinion of the Supreme Court in People v White, 401 Mich 482, 510; 257 NW2d 912 (1977), cursorily mentions People v Pickett, supra, declaring in the text that Pickett is inapplicable because the (White) witness was physically available at trial and had changed his testimony. The accompanying footnote 8 at the following page, 511, provides:

"On the other hand, if, upon a new trial, Hodges is for some reason unavailable, his testimony at the first trial would be admissible under current law as former testimony. People v Pickett, 339 Mich 294; 63 NW2d 681 (1954). If the witness is present but testifies to a lack of memory, claims a privilege, or refuses despite an order of the court to testify, he may nevertheless be deemed unavailable and the former testimony rule will apply just as if he could not be present. Proposed Michigan Rules of Evidence 804(a), 804(b)(1).”

Witness Langford did precisely that. He testified "to a lack of memory” on direct examination. It was only after his preliminary examination testimony was read to the jury that his memory improved and he denied the crime.

It would appear that any rule emerging from the Supreme Court White opinion is somewhat elusive. If the witness were to testify on retrial to exculpate White he can be impeached. If he refuses or forgets he is unavailable and- the prior testimony can be introduced. In the opinion which declares the error the future use is condoned.

In the recent opinion of People v Castaneda, 81 Mich App 453; 265 NW2d 367 (1978), the panel joined in allowing preliminary examination testimony under circumstances markedly similar to White, Dortch and Pickett. One Velasquez incriminated Castaneda at the preliminary examination then later, on motion to withdraw his plea, Velasquez repudiated his testimony. The Court held that,

"MCLA 768.26; MSA 28.1049 clearly permits testimony of a witness at a preliminary examination to be read at the trial.
"The trial judge properly ruled that in asserting his Fifth Amendment privilege, Velasquez had made himself 'unavailable’ to testify at trial.” 81 Mich App at 458.

People v Pickett, supra, was cited in support. Velasquez took the stand and asserted the Fifth Amendment on most questions but he answered some very critical questions, two of which totally exculpated the defendant. He was asked:

”Q. Do you really want to take the Fifth Amendment, now, Freddy, or do you want to clear Lupe’s name?
"A. I would like to clear his name.
”Q. Will you tell me sir, did he have anything to do with that dope transaction?
’A. No sir.”

Although the words substantive evidence are not used, it appears the use was not limited to impeachment. Perhaps the reader will be able to equate Castaneda with page 510 of the Supreme Court White, supra, and footnote 9. The writer cannot.

It seems to me that whether one calls the evidence substantive or impeaching, if the recalcitrant witness is available physically, in court, and is confronted with his prior testimony as in White, as in Dortch, as in Castaneda, the jury has the greater benefit of observing the witness than if he were truly physically unavailable.

I would affirm.

       Michigan Proposed Rules of Evidence 801(d)(1) would have changed the law by providing that prior inconsistent testimony of a witness who testifies at trial or hearing and is subject to cross-examination is not hearsay. That proposed rule was, however, not adopted. See MRE 801(d).

       The prosecutor did not advance this argument, but the Court expressly ruled on it. See People v White, supra, at 510.

       In White and the rejection of proposed rule 801(d)(1)(A), the Supreme Court has reversed the trend toward liberal admissibility of former testimony. McCormick, for example, argues persuasively in favor of wider admission of former testimony:
      "The traditional restrictions upon the admission of evidence of former testimony are understandable as the reflections of an earlier era when there were no court reporters, and as logical deductions from the premise that cross-examination is the only substantial safeguard for the reliability of this evidence. But when we view them in comparison with doctrines admitting other types of oral declarations as exceptions to the hearsay rule, such as declarations against interest, declarations of present bodily or mental state, and excited or spontaneous utterances, which seem far less reliable, the restrictions upon declarations in the form of sworn testimony in open court or official hearing, seem fantastically strict. As Morgan said, 'Were the same strictness applied to all hearsay, evidence of reported testimony would constitute the only exception to the hearsay rule.’
      "In the light of this broader view, therefore, it seems that the most immediate improvement would come from the wider acceptance among the courts of the attitude that the present scheme of admissibility of former testimony should be applied with a reasonable liberality favoring in case of doubt the admission of this type of evidence.” (Footnotes omitted.) McCormick on Evidence (2d ed, 1972), § 261.

        See, also, MRE 801(d)(1)(A) and Commentary.
      Furthermore, it is not clear that Hodges, the witness in White, was "available” even though he repudiated his former testimony. After a witness has consistently claimed a lack of memory on direct examination, should a sudden assertion of innocence or the bald statement that the former testimony was a lie preclude a finding that the witness is "unavailable” due to a lack of memory? It certainly seems possible that a witness can assert innocence and still have a lack of memory concerning the subject matter of his former testimony. In such a case, the determination of unavailability should be left to the sound discretion of the trial judge, who is in the best position to view the demeanor of the witness. See MRE 804(a)(3), defining an unavailable declarant as one who "has a lack of memory * * * .”
      However, we are again met by the dichotomy posed in White: either the witness lacks memory completely or he has changed his testimony. In White, a statement that the prior testimony was a lie was a sufficient change in testimony to render Hodges "available”. Lang-ford’s similar assertion in the case at bar therefore constituted a "change” in testimony preventing admission of the former testimony.

       "Q. If I understand your testimony then, Mr. Langford, and let me know if I am wrong, on September 17th and 18th of 1974— [A physician found the date of the victims’ deaths to be September 17 or 18. They were found on September 27.]
      "A. — Now, you can’t say from September 20th or whatever, you have got to give me the exact date, because that’s been about a year or something ago, you know.
      "Q. I know. It’s been longer than that.
      "A. Yeah.
      "Q. Let me ask you, September 17, 1974, being a Tuesday, where were you living at that time?
      "A. Now, you asked me a question that I can’t recall, because of the fact that it’s been so long ago.
      "Q. Do you recall your activities for that day?
      "A. No, I don’t.

        "Q. On September the 18th, the next day, Wednesday, 1974, can you remember on that day where you lived?
      "A. No.
      "Q. Can you remember where you were?
      "A. No.
      "Q. And one more day, September 19th, being a Thursday, can you recall where you lived?
      “A. No.
      "Q. Now, I asked you earlier as to another date, which was September 27, 1974, being a Friday, do you recall where you lived at that time?
      "A. Do I recall where I lived at?
      "Q. Yes, September 27, 1974, Friday?
      "A. Yes, the. Milner Hotel.
      "Q. And do you recall where you were living, your whereabouts?
      "A. At the Milner Hotel.
      "Q. Milner?
      "A. Yes.
      "Q. And do you recall where you were on the evening of that particular day, Friday?
      "A. No, I don’t recall. All I know I was at the Milner Hotel where I was staying, but as far as my activities were concerned, I couldn’t tell you.
      "Q. Okay, thank you.”

        Cf. MRE 804(b)(3), requiring corroboration of exculpatory statements against the declarant’s penal interest.

         See MRE 804(b)(3).

       It is not clear whether "unavailability” is differently defined for different hearsay exceptions. See McCormick on Evidence (2d ed, 1972), § 253. Absent any Michigan authority defining "unavailability” in the context of the penal interest exception, we hold that the definition developed for admission of former testimony applies to the statement against interest exception as well. See MRE 804, which defines "unavailability” without differentiating it for various hearsay exceptions.