author: D. E. Holbrook, P.J. M. F. Cavanagh, J.

text:
    PLEZNAC v GRIVA
    Docket No. 77-3420.
    Submitted February 14, 1978, at Detroit.
    Decided October 17, 1978.
    Leave to appeal applied for.
    John Pleznac brought an action against Sylvia Griva, Frank L. Malje and Peoples Community Hospital Authority for himself and as next friend in behalf of Daniel J. Pleznac, a minor, alleging medical malpractice. By agreement of all parties the complaint against Peoples Community Hospital Authority was dismissed with prejudice. Plaintiffs moved to have the dismissal set aside and to have the hospital authority added as a party for failure to inquire as to the best interests of the minor child at the time of the dismissal. The trial court first granted plaintiffs’ motion then set aside the grant of the motion for lack of notice to the hospital authority and entered accelerated judgment in favor of the hospital authority based on the stipulation and order of dismissal. Plaintiffs again moved to set aside the dismissal and the Wayne Circuit Court, Michael L. Stacey, J., denied the motion. Plaintiffs appeal. Held:

    1. Stipulations made based on misinterpretation of the law do not bind the court.
    2. A guardian ad litem or next friend may not by stipulation surrender substantial rights of the infant, including the right to have the hospital as a party defendant.
    Reversed and remanded for further proceedings.
    M. F. Cavanagh, J., dissented. He would hold that a dismissal of a party based on perceived immunity is not the surrender of any substantial right and that there was no misapprehension as to the status of the hospital authority’s immunity at the time the stipulation was entered into. He further perceives the decision of the majority as inviting the reopening of long-settled litigation and as undermining the intended finality of GCR 1963, 504.1[lj.
    References for Points in Headnotes
    [1] 73 Am Jur 2d, Stipulations §§ 8, 12.
    [2] 42 Am Jur 2d, Infants § 184.
    [3] 42 Am Jur 2d, Infants § 210.

      Opinion of the Court
    1. Courts — Parties—Stipulations—Binding Effect of Stipulations —Misinterpretation of the Law.
    Stipulations of the parties to a lawsuit based on misinterpretation of the law do not bind the court.
    2. Guardian and Ward — Capacity of Guardian — Substantial Rights — Trials—Dismissal of a Party at Trial.
    A guardian ad litem or next friend may not by stipulation surrender substantial rights of the infant; a stipulation for the dismissal of a community hospital authority from a lawsuit by a next friend of a minor prior to the abrogation of governmental immunity in such suits was beyond the capacity of the next friend and had no binding effect.
    Dissent by M. F. Cavanagh, J.
    3. Guardian and Ward — Capacity of Guardian — Substantial Rights — Trials—Dismissal of a Party at Triad — Misapprehension of the Law.

      A stipulation by a next friend of a minor for a dismissal of a hospital authority in a medical malpractice suit based on perceived immunity prior to the abrogation of that immunity by the courts is not a surrender of a substantial right of the minor; a stipulation to that effect is not a misapprehension as to the status of the law at the time the stipulation was entered into.

      Maile & Leach (by Randall Winston), for plaintiffs.

      Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C., for defendant Peoples Community Hospital Authority.
    Before: D. E. Holbrook, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   D. E. Holbrook, P.J.

Plaintiffs appeal the trial court’s order denying a motion to set aside a stipulation and order of dismissal as to defendant Peoples Community Hospital Authority. Plaintiffs’ original complaint in this medical malpractice action was filed August 15, 1968. It is alleged that Peoples Hospital and the individual defendants negligently administered excessive quantities of oxygen to the minor plaintiff postnatally for a period of approximately one month following his premature birth October 11, 1967, resulting in a condition diagnosed as retrolental fibroplasia which rendered said minor plaintiff totally and permanently blind.

On December 8, 1968, defendant Peoples Hospital filed a motion for dismissal, improperly denominated a motion for summary judgment, alleging governmental immunity. This motion was never acted upon, however, on March 7, 1969, a stipulation of dismissal as to defendant Peoples Hospital only, signed by all parties, was filed. In pursuance thereof, the circuit court filed an order dismissing the action as to Peoples Hospital, with prejudice.

Early in 1973, plaintiffs filed a motion to set aside the above stipulation and to add Peoples Hospital as a party defendant. Plaintiffs alleged that "there was no inquiry at the time of the Order of Dismissal as to the best interests of the Plaintiff minor”. This motion was granted, only to be set aside for lack of notice to defendant Peoples and by entry of accelerated judgment based upon the stipulation and order of dismissal. As the order setting aside plaintiffs’ motion was without prejudice, plaintiffs filed an identical motion in December of 1973. On January 31, 1975, the trial judge filed an order denying plaintiffs’ motion.

Plaintiffs’ attempted appeal of this denial in February of 1975 was not allowed as the trial court’s decision was not a final judgment. Plaintiffs thereupon renewed their motion to set aside the stipulation and dismissal of Peoples Hospital on April 28, 1977. This motion was denied on July 7, 1977, rendering it a final judgment as to Peoples Hospital, which the plaintiffs now appeal.

The plaintiffs’ tenacity in seeking to have the 1969 stipulation and resulting dismissal of Peoples Hospital set aside stems from several more recent Michigan Supreme Court decisions which have considerably narrowed the doctrine of governmental immunity. As noted in defendant-appellee’s brief:

"The motion [for summary judgment filed in 1969] asked for a judgment of dismissal in favor of Peoples and against Pleznac for the reason that at all times material thereto, Peoples, pursuant to statutes of the State of Michigan and specific decisions of the Michigan Supreme Court, had been determined to be a State agency, and thereby entitled to avail itself of the governmental immunity defense.”

"[Apparently counsel [for each of the parties] were of the opinion that the Motion for Summary Judgment was well-founded, and a Stipulation of Dismissal * * * was executed.”

"[This stipulation was] a stipulation and an order wherein all parties to the lawsuit represented by counsel agreed that as a matter of law Peoples could not be sued for the injuries sustained by the plaintiff”. (Emphasis added.)

Plaintiffs seek to set aside the stipulation and order of dismissal on the claim that the subsequent abrogation of governmental immunity retroactively rendered Peoples Hospital amenable to suit.

On appeal, plaintiffs suggest that the line of cases requiring that the trial court determine whether a proposed compromise or settlement is in the best interests of a minor plaintiff, should be extended to include the instant stipulation to dismiss. See Dudex v Sterling Brick Co, 237 Mich 470; 212 NW 92 (1927), Palazzolo v Judge of Superior Court of Grand Rapids, 234 Mich 547, 549; 208 NW 677 (1926), and Centala v Navrude, 30 Mich App 30, 32-33; 186 NW2d 35 (1971). In such case, the court’s dismissal in reliance upon the stipulation but without a hearing to determine whether it is in the best interests of the minor would be error. Centala, supra, Centala v Navrude, 45 Mich App 282, 284-285; 206 NW2d 544 (1973), and Moebius v McCracken, 261 Mich 409, 414; 246 NW 163 (1933).

Defendant’s brief cites 3 Callaghan’s Michigan Pleading & Practice (2d ed), § 32.33, pp 93-94, to the effect that:

"Where there is a stipulation to dismiss, followed by an order dismissing the cause pursuant to the stipulation, the disposition of the case is final and binding in the absence of demonstrative fraud of a serious character in obtaining the stipulation.” (Footnotes omitted.)

Neither the line of cases cited by plaintiffs, nor this general statement of the law put forth by the defendant, is determinative in the instant case.

Mr. Justice Cooley correctly stated the applicable law a century ago in Detroit v Beckman, 34 Mich 125, 126 (1876): "[T]he admission of a rule of law could not obligate the court to accept and act upon it”. In a unanimous decision, the Michigan Supreme Court recently reaffirmed Beckman in Magreta v Ambassador Steel Co, 378 Mich 689, 705; 148 NW2d 767 (1967). According to the Court: "The stipulations of the parties before the referee, reflecting as they do misinterpretation of the applicable law, do not preclude our disposition of this controversy in accordance with the law as we construe it”. See also Anno: Stipulation of Parties as to the Law, 92 ALR 663, 674-675, § m.

The passages excerpted from defendant’s brief clearly indicate that the parties entered into the stipulation agreement as a result of their (reasonable) misapprehension of the efficacy of Peoples Hospital’s cloak of governmental immunity. The authorities cited above clearly indicate that such a "misinterpretation of the applicable law” need not bind the court.

Even if we were to construe the stipulation of the parties to have been merely the result of a mistake of fact, it would not necessarily have been binding in this case. The minor plaintiffs next friend did not have the power to surrender the minor’s rights against the defendant. 83 CJS, Stipulations, § 15, pp 36-37:

"While it has been broadly stated that no person has any authority to stipulate in behalf of a minor, and that infant defendants are not bound by a stipulation as to facts, the general rule is that the next friend or guardian ad litem of an infant may give a binding assent to such arrangements as will facilitate the determination of the case in which the rights of the infant are involved, this rule being subject to the limitation that the stipulation be approved and ratified by the court, on a showing that it is for the interest, or, at least, not prejudicial to the interest, of the infant. However, a guardian ad litem or next friend cannot, in any event, by stipulations, surrender substantial rights of the infant; and stipulations and admissions of fact which are adverse and disadvantageous to the interests of infant defendants are not authoritative with respect to the determination of their rights.” (Footnotes omitted, emphasis added.)

See also 13 Callaghan’s Michigan Civil Jurisprudence (2d ed), § 99, p 457 and 3 Callaghan’s Michigan Pleading & Practice (2d ed), §§ 28.17, 28.18, 32.35, pp 19-21, 97-98.

In light of the recent Michigan Supreme Court decisions substantially abrogating the doctrine of governmental immunity during the time period in question, including Maki v East Tawas, 385 Mich 151; 188 NW2d 593 (1971), and Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976), a substantial likelihood exists that the stipulation served to foreclose significant rights of the plaintiff. Ordinarily such a stipulation and dismissal under GCR 1963, 504 would be binding upon the plaintiff. Where, as here, the next friend plaintiff lacked the capacity to enter such a binding agreement, however, the court, with its traditional concern for the protection of the rights of minors, may look beyond the stipulation to the substance of the parties’ agreement: where that agreement purports to decide the law of the case it is clearly not binding on the court. (See Beckman, supra, and Magreta, supra.)

Under the unique facts of this case, it was a clear abuse of the trial court’s discretion to allow the minor plaintiff’s next friend to stipulate a matter of law which operated to foreclose substantive rights of the minor. Such a stipulation clearly exceeded the next friend’s authority and is of no binding force or effect.

Reversed and remanded for actions consistent with this opinion. Costs to plaintiffs.

M. F. Cavanagh, J.

(dissenting). There was no error in the trial court’s refusal to set aside the stipulation. It is true that where the next friend of a minor plaintiff enters into a compromise or settlement of the minor’s claims, the settlement is without effect unless, after a hearing, Centala v Navrude, 45 Mich App 282, 284-285; 206 NW2d 544 (1973), the trial court determines that it is in the best interests of the minor plaintiff. Palazzolo v Judge of Superior Court of Grand Rapids, 234 Mich 547, 549; 208 NW 677 (1926), Dudex v Sterling Brick Co, 237 Mich 470; 212 NW 92 (1927). Here, however, there was no compromise or settlement based on the merits of the case whose fairness the court could evaluate, for the trial court would have had to dismiss the action in any event as to Peoples. There was simply a stipulation, entered into in accordance with the applicable court rule, GCR 1963, 504.1(1), based on defendant Peoples’ perceived immunity from suit. This conclusion disposes of the sole issue raised by plaintiffs.

However, the majority has seen fit to prolong this ten-year old phase of the instant case by injecting, sua sponte, the argument that the parties "misapprehended” the state of the law relative to governmental immunity at the time the stipulation was entered into. My brothers further believe that the minor plaintiff’s next friend was without authority to bind the minor by the stipulation involved because it surrendered the minor’s rights against defendant hospital — even though these rights weren’t recognized by judicial pronouncement until years following the entry of the stipulation. I cannot agree. There was no misapprehension as to the status of defendant’s immunity at the time. A hearing to determine the best interests of this minor, held at that time, would have produced no different results and plaintiff’s next friend could effectively bind the minor. I do not view the facts of this case to be as unique as my brothers view them. Their decision today invites the reopening of much long-settled litigation and greatly undermines the intended finality of GCR 1963, 504.1(1).

For these reasons, I would affirm the trial court’s refusal to set aside the stipulation.

       This motion was properly termed a motion for accelerated judgment. See GCR 1963, 116, 117, Drouillard v City of Roseville, 9 Mich App 239; 156 NW2d 628 (1967), Pompey v General Motors Corp, 385 Mich 537; 189 NW2d 243 (1971).

       On November 23, 1976, the Michigan Supreme Court in Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976), held that any claim arising prior to August 1, 1970, effective date of the enactment of the first constitutional governmental immunity act, must be governed by common-law principles of government tort liability. The Court then abolished common-law immunity with respect to all pending and future case challenging this defense.

       Courts are charged with the protection of rights of infants and incompetents and should always give due regard to those rights. Centala v Navrude, 30 Mich App 30, 32-33; 186 NW2d 35 (1971), cites 3 Callaghan’s Michigan Pleading & Practice, § 32.35, p 97.


source: Caselaw Access Project

author: D. F. Walsh, P.J. Beasley, J. R. M. Maher, J.

license: Public Domain

text:
    PEOPLE v GOODARD (ON REHEARING)
    Docket No. 21009.
    Submitted January 4, 1978, at Grand Rapids.
    Decided April 4, 1978.
    Rehearing granted.
    Decided on rehearing October 18, 1978.
    Leave to appeal applied for.
    Richard L. Goodard was convicted of first-degree murder, Marquette Circuit Court, Bernard H. Davidson, J. Defendant appealed, and the conviction was reversed, 82 Mich App 424 (1978). The people’s motion for rehearing was granted. Held:

    D. F. Walsh, P.J., would hold that the trial court’s instructions to the jury accurately communicated to the jury all of the components required for a finding of malice. There was no reversible error, and the defendant’s conviction should be affirmed.
    Beasley, J., concurred in the result reached by Judge Walsh because the jury instructions, when read as a whole, did not remove the element of malice from the jury’s consideration.
    Conviction affirmed.
    R. M. Maher, J., dissented. He would hold that the trial court’s instructions effectively removed the element of malice from the jury’s consideration.
    Opinion of D. F. Walsh, P.J.
    1. Appeal and Error — Homicide—First-Degree Murder — Instructions to Jury — Malice.

      An allegation of error in a trial court’s jury instructions on the element of malice in a trial for ñrst-degree murder does not require objection at trial in order to be preserved for appeal; if the instructions were so erroneous as to have denied the defendant a fair trial, then manifest injustice has been shown.

    References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 5.
    75 Am Jur 2d, Trial § 623.
    [2] 75 Am Jur 2d, Trial §§ 623, 624.
    [3] 5 Am Jur 2d, Appeal and Error § 891.
    [4] 40 Am Jur 2d, Homicide § 500.
    [5] 75 Am Jur 2d, Trial §§ 628, 920.
    [6] 40 Am Jur 2d, Homicide § 499.

      2. Criminal Law — Instructions to Jury — Elements of Crime.

      The central inquiry in reviewing jury instructions in a criminal case is whether the jury, following the court’s instructions, could have convicted the defendant without ñnding all of the legally required elements; if the context and language of a challenged passage indicates that the jury may have used the statement in question as an operative legal principle in their deliberation, and if the statement is erroneous or misleading, the conviction must be reversed.

    Concurrence by Beasley, J.
    3. Appeal and Error — Criminal Law — Instructions to Jury — Ob-
    jection — Manifest Injustice.

      The Court of Appeals should not review a criminal defendant’s allegation of error in the trial court’s instructions to the jury where there was no objection to the instructions at trial and where there is no affirmative showing of manifest injustice.

    4. Homicide — Instructions to Jury — First-Degree Murder — Mal-
    ice.

      A trial court’s instructions to the jury on the element of malice in a trial for first-degree murder were not erroneous where those instructions, when read as a whole, did not remove the element of malice from the jury’s consideration and do not indicate that the defendant was denied his right to a fair trial.

    Dissent by R. M. Maher, J.
    5. Appeal and Error — Criminal Law — Instructions to Jury — Con-
    flicting Instruction.

      A defendant’s conviction must be reversed where the trial court has given conflicting instructions, one erroneous and one without error; in such a case it may be presumed that the jury followed the instruction which was erroneous.

    6. Homicide — Murder—Malice—Instructions to Jury.

      It is reversible error for a trial court to effectively remove the element of malice from jury consideration in a trial for murder.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gary Walker, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, by Thomas C. Nelson, Assistant Attorney General), for the people.

      Janet Tooley, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. F. Walsh, P.J., and R. M. Maher and Beasley, JJ.
   On Rehearing

D. F. Walsh, P.J.

Defendant, Richard L. Goo-

dard, was convicted after jury trial of first-degree murder. MCL 750.316; MSA 28.548. He appealed and we reversed. People v Goodard, 82 Mich App 424; 266 NW2d 832 (1978) (Beasley, J., dissenting). The people moved for and we granted rehearing in an order dated August 31, 1978. On rehearing defendant’s conviction is affirmed and our former order reversing the conviction is rescinded.

Defendant claims that the trial court gave an erroneous and misleading instruction on the essential element of malice. Such an allegation of error does not require objection at trial in order to be preserved for appeal. People v Townes, 391 Mich 578; 218 NW2d 136 (1974), People v Liggett, 378 Mich 706; 148 NW2d 784 (1967), People v Rosemary Gibson, 71 Mich App 543; 248 NW2d 613 (1976). If the instructions were so erroneous as to have denied the defendant a fair trial, then "manifest injustice” has been shown.

As an element of the crime of murder, "malice” has a very specific definition:

"Malice means the defendant intended to kill or that he knowingly created a very high risk of death with knowledge that it probably would result in death and that he did so under circumstances which did not justify, excuse, or lessen the crime.” Michigan Standard Criminal Jury Instructions (CJI) 16:3:01, quoted in People v Fountain, 71 Mich App 491, 493 fn 1; 248 NW2d 589 (1976). See CJI, Murder Commentary.

It is against that definition that we evaluate the trial court’s instructions on malice, which were as follows:

"Malice is here used in a technical sense, including not only anger, hatred or revenge, but every other unlawful and unjustifiable motive. It is not confined to particularly ill-will to the deceased, but is intended to denote an action flowing from a wicked and corrupt motive. A thing done, as the book says, 'malo animo’, meaning with an evil mind; with a bad purpose or wrong intention and, therefore, malice is implied from any deliberate or cruel act against another however sudden. The time in which the wicked purpose is formed is immaterial. Malice aforethought does not imply deliberation or the lapse of considerable time between the formation and execution of the intent to take life but rather denotes purposes and design. It means malice existing at any time before the act so as to be its moving cause or concomitant.
"Murder in the first degree is defined as where a person with a sound memory and discretion, willfully and unlawfully and unreasonably kills any human being against the peace of this state with premeditation and with malice aforethought, express or implied.
"Murder in the second degree is similarly defined except the element of premeditation is lacking. If one without cause inflicts a wrong upon another, we call him wicked and malicious, so when one without any legal provocation, justification or excuse intentionally kills another, he is called a murderer. The law implies from such unprovoked, unjustifiable or inexcusable killing, the existence of that wicked disposition which the law terms malice aforethought. The intention may be inferred from the use of a deadly weapon in such a manner that the death of the person assaulted would be the inevitable consequence. Thus, if the defendant Richard Goodard intentionally killed Earl DeMarse without provocation, justification or excuse and with premeditation and malice aforethought, he would be guilty of murder first degree.” (Emphasis added.)

I disapprove much of the instruction insofar as it is arcane and potentially misleading. Such instructions should not be approved automatically simply because they were reproduced in the text of a distinguishable decades-old opinion. However, my assessment of the above instruction is that it did not constitute reversible error,

The central inquiry in reviewing jury instructions in criminal cases is whether the jury, following the court’s instructions, could have convicted the defendant without finding all of the legally required elements. Thus, when we examine the transcript we must always consider the context of a challenged passage to determine the likelihood that the jury considered it as a legal definition or principle to be applied to the facts of the case. If the context and the language indicates that the jury may have used the statement in question as an operative legal principle in their deliberation, and if the statenlent is erroneous or misleading, the conviction must be reversed regardless of the content of the remaining instructions. See People v Beard, 78 Mich App 636; 261 NW2d 27 (1977).

My reading of the first full paragraph of the quoted instructions convinces me that the jury must have considered it no more than introductory. The term "malice” was cast about in a general and (concededly) incorrect fashion, but contained nothing of substance in terms of a legal principle to be applied to the facts.

The second paragraph of the instructions is clearly a legal definition of first-degree murder. It correctly includes all of the required elements of the crime, including the pertinent type of malice involved in the case. The word "willfully” accurately characterizes the requisite mental element of intent to kill.

The elaboration upon "malice” contained in the emphasized portion of the third paragraph contains all of the components required to find "malice”: an intentional killing without legal provocation, justification or excuse. As such, it was a correct instruction. People v Rosemary Gibson, supra.

I conclude that the instructions in the instant case accurately communicated to the jury the components required for a finding of malice, and, therefore, did not constitute reversible error.

Defendant’s conviction is affirmed.

Beasley, J.

(concurring). After rehearing, I concur in the result reached by Judge Walsh for the reasons indicated in my previous opinion in this case, People v Goodard, 82 Mich App 424, 430-437; 266 NW2d 832 (1978).

R. M. Maher, J.

(dissenting). On rehearing, I respectfully dissent for the reasons stated in the original majority in this case, People v Goodard, 82 Mich App 424; 266 NW2d 832 (1978).

       The cases cited in the text are authority for the proposition that a fair trial includes having the jury properly instructed as to the applicable law. If the jury was so erroneously instructed that its finding of "malice” did not necessarily include a finding of the legally necessary components thereof, then the defendant was convicted without having a necessary element of the crime determined by the jury. Such a conviction cannot be termed the product of a "fair trial”.

       In my opinion, the concept of "manifest injustice” is coterminous with that of a "fair trial”. Our determination whether "manifest injustice” has occurred should not turn on our assessment of the defendant’s guilt — we are not triers of fact. Rather, our analysis should focus on the question of whether the trial procedures comported with our systemic standards of fairness. If they did not, we must reverse. Fundamentally unfair trial procedure cannot be vindicated merely because we agree with the result.

       I consider People v Borgetto, 99 Mich 336; 58 NW 328 (1894), to be of uncertain precedential value for the proposition that the instant instructions were not erroneous. Borgetto found the instructions given in that case sufficient because of the immediate presence of additional language distinguishing murder from manslaughter,- language not present in the instructions before us. Hence, Borgetto is inapposite here.
      Furthermore, in view of the development of legal thought and the evolution of common language to the point where "it is well-nigh impossible to communicate to jurors in the arcane jargon of malice aforethought the mental state required [to constitute murder]”, People v Morrin, 31 Mich App 301, 320; 187 NW2d 434 (1971), I consider it unwise to accept instructions because their preadamic language corresponds to that approved in a case from an earlier time. Rather, our analysis should begin by defining the legal components of the element in question and then proceed to determine whether the instructions communicated the requirement that those components must be found before the defendant can be convicted. See People v Rosemary Gibson, 71 Mich App 543; 248 NW2d 613 (1976).

       I agree with Judge Maher’s observation that the "read as a whole” rule has been abused by overuse. People v Beard, 78 Mich App 636, 639; 261 NW2d 27 (1977). I further agree that clearly erroneous instructions on' a material element of a crime mandate reversal. However, as indicated in the text, even the application of such a salutary rule requires that we keep in mind the rationale underlying our review of the instructions. If we can state with near certainty that the jury did not rely upon the challenged instruction in its deliberations, there is no point in reversing the conviction. Needless to say, such a statement can be made legitimately only after careful consideration of the language and its context.

       Given the evidence concerning the nature of killing in the instant case, the only question of malice presented was whether the killing was done intentionally. Hence, the instructions should be read to determine whether they required the jury to find inter alia an intent to kill as a condition of conviction.
      I hasten to add that in a different factual context (e.g., a charge of murder in the perpetration of a robbery) in which there existed the possibility that the jury could have construed such phrases as "unlawful and unjustifiable motive”, "wicked and corrupt motive”, "bad purpose” to denote something other than intent to kill (e.g., intent to rob), I would not hesitate to reverse. However, the facts of the instant case simply do not lend themselves to that kind of confusion.

        "Willful * * * 2: done deliberately: not accidental or without purpose: INTERNATIONAL, SELF-DETERMINED <a — injury > < — murder > * * * .” Webster’s Third New International Dictionary (1965), p 2617.
      I think that the above definition accurately states the common meaning that a layman would give the term "willful”.

        See fn 3, supra.


author: V. J. Brennan, J.

text:
    EROH v MANISTEE COUNTY SHERIFF
    Docket No. 77-4420.
    Submitted June 6, 1978, at Grand Rapids.
    Decided October 18, 1978.
    California requested the Governor of Michigan to extradite plaintiff, Frederick P. Eroh, for the felony offense of willful nonsupport. Plaintiff was taken into custody pursuant to a Governor’s warrant. A habeas corpus proceeding was commenced in Manistee Circuit Court with plaintiff claiming he did not willfully refuse to provide support and that the Uniform Criminal Extradition Act is unconstitutional. He did not challenge the sufficiency of the extradition documents nor allege that California did not substantially charge the commission of a crime within its jurisdiction. Charles A. Wickens, J., found that plaintiff had no duty to provide support and granted a writ of habeas corpus. Defendant, Manistee County Sheriff, appeals. Held:

    1. A state has the power to deal with the extradition of nonfugitives in the absence of Federal control.
    2. The duty to provide support must be decided by the California court. The Michigan court may only inquire as to the sufficiency of the extradition documents, including the question of whether the person whose extradition is demanded was substantially charged with the commission of a crime; therefore, the grant of habeas corpus based upon no duty to support where no challenge was made to the sufficiency of the extradition documents went beyond the trial court’s limited scope of inquiry and was improper.
    Reversed and remanded.
    1. Constitutional Law — Fugitives—Extradition.
    A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime (US Const, art IV, § 2).

      References for Points in Headnotes
    [1] 31 Am Jur 2d, Extradition § 4.
    [2] 31 Am Jur 2d, Extradition § 6.
    [3, 4] 31 Am Jur 2d, Extradition §§ 14, 15.
    [5, 6] 39 Am Jur 2d, Habeas Corpus § 76.

      2. Extradition — Uniform Criminal Extradition Act — Federal Procedures — State Procedures — Constitutional Law — Statutes.
    The procedures to be followed in applying the Uniform Criminal Extradition Act are for the most part governed by Federal statute; however, the statute is not exactly coterminous with the power granted by the constitution and the states are free to adopt their own procedures in those cases which are not covered by Federal law (18 USC 3182; MCL 780.3a; MSA 28.1285[3-l/2]).
    3. Extradition — Uniform Criminal Extradition Act.
    The Uniform Criminal Extradition Act permits extradition of those who are not fugitives from justice in the constitutional sense (US Const, art IV, § 2; MCL 780.3a; MSA 28.1285[3-1/2]).
    4. Extradition — Constitutional Law — Uniform Criminal Extradition Act — Extradition of Nonfugitives — Validity.
    The Michigan Uniform Criminal Extradition Act is valid; neither the United States Constitution nor Federal statute negate the power of the states to provide for the extradition of persons who are not fugitives in the technical sense; under these circumstances, the power to deal with such persons is vested in the states.
    5. Extradition — Habeas Corpus — Scope of Inquiry.
    The scope of inquiry on habeas corpus challenging the extradition of a fugitive is limited to whether the demanding state has substantially charged the commission of a crime within its jurisdiction and whether the accused is the person so charged; the purpose for this narrow inquiry is to avoid any imposition upon the courts of a state of the duty to critically examine the laws of sister states with whose jurisprudence and criminal procedure the court could only have a general acquaintance and the burden would be intolerable, certain to lead to errors in decision, irritable to the just pride of the states, and fruitful of miscarriages of justice; for these same reasons, the scope of inquiry on habeas corpus challenging extradition of nonfugitives applies.
    6. Extradition — Sufficiency of Extradition Documents — Habeas Corpus — Charge of Crime — Error.
    A Michigan court in an extradition case may only inquire as to the sufficiency of extradition documents including the question of whether the demanding state has substantially charged the person, whose extradition is demanded, with the commission of a crime; the grant of a writ of habeas corpus where no challenge is made to the sufficiency of the extradition documents is improper.

      John F. Huft, for plaintiff.

      Dennis L. Keleher, Prosecuting Attorney, and Thomas N. Brunner, Assistant Prosecuting Attorney, 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.

   V. J. Brennan, J.

This appeal involves two pertinent inquiries: (1) the constitutionality of § 3a the Uniform Criminal Extradition Act, MCL 780.3a; MSA 28.1285(3-1/2), dealing with the extradition of nonfugitives; and if the provision is constitutionally valid, then, (2) the scope of inquiry on habeas corpus from an extradition warrant brought pursuant to this section.

On November 24, 1976, the State of California requested the Governor of the State of Michigan to extradite Frederick Paul Eroh, plaintiff-appellee, for the felony offense of willful nonsupport. A Governor’s warrant was issued on February 3, 1977, pursuant to the California request, and the plaintiff was taken into custody.

The plaintiff brought a habeas corpus proceeding in the Manistee County Circuit Court pursuant to MCL 780.9; MSA 28.1285(9). It must be noted that the plaintiff did not challenge the sufficiency of the extradition documents nor did he claim that the demanding state did not substantially charge the commission of a crime within its jurisdiction.

In the habeas corpus proceeding the plaintiff argued that he did not willfully refuse to provide support. The plaintiff pointed out that no support order was ever issued by the Manistee County Circuit Court. The plaintiff further argued that § 3a of the act was unconstitutional as violative of his equal protection and due process rights.

The trial court found that the plaintiff had no duty to provide support and granted the writ of habeas corpus.

Initially, we must address the constitutionality of the extradition provision in question. The Federal Constitution provides for the extradition of fugitives from justice. US Const, art IV, § 2, states in part:

"A Person charged in any State with Treason, Felony, or other crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.”

The procedures to be followed in such cases are for the most part governed by Federal statute, 18 USC 3182. The statute, however, is not "exactly coterminous with the power granted by the constitution” and the states are free to adopt their own procedures in those cases which are not covered by Federal law. Innes v Tobin, 240 US 127; 36 S Ct 290; 60 L Ed 562 (1916).

The Uniform Criminal Extradition Act permits extradition of those who are not fugitives from justice in the constitutional sense. Section 3a of the act provides:

"The governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in section 3 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of this act not otherwise inconsistent shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom, and the requirements contained in subdivisions (d) and (e) of section 3 of this act shall not apply to such cases.”

The Uniform Criminal Extradition Act has been adopted in 47 states, and in all jurisdictions in which § 3a of the act has been attacked, its validity has been upheld. This unanimity of opinion is persuasive authority as to the validity of this section.

However, even without regard to such authorities, we think it is clear that the section is valid. The constitutional provision and the Federal statute pertain only to persons who have fled from justice and do not purport to cover the entire field of extradition. There is nothing in either the United States Constitution or the Federal statute negating the power of the states to provide for the extradition of persons who are not fugitives in the technical sense. Under these circumstances, the power to deal with such persons is vested in the states. We therefore hold that § 3a of the Uniform Criminal Extradition Act is constitutional.

The next question to be resolved is the scope of inquiry in a habeas corpus proceeding challenging extradition under § 3a of the act. Under Michigan case law the scope of inquiry on habeas corpus challenging the extradition of a fugitive is limited to whether the demanding state has substantially charged the commission of a crime within its jurisdiction and whether the accused is the person so charged. In re Rayborn, 18 Mich App 468; 171 NW2d 460 (1969). See also Williams v Wayne County Sheriff, 395 Mich 204; 235 NW2d 552 (1975), and MCL 780.19; MSA 28.1285(19). The purpose for this narrow inquiry is to avoid any imposition upon the courts of this state of the duty to critically examine the laws of sister states with whose jurisprudence and criminal procedure our courts can only have a general acquaintance. Such a duty would be an intolerable burden, certain to lead to errors in decision, "irritable to the just pride of the states, and fruitful of miscarriages of justice”. Pierce v Creecy, 210 US 387, 405; 28 S Ct 714, 720; 52 L Ed 1113, 1121 (1908). For the aforementioned reasons, we hereby apply this same scope of inquiry on habeas corpus challenging the extradition of nonfugitives.

In the present case the trial court went beyond its limited scope of inquiry in granting the writ of habeas corpus. The trial court’s ruling that the plaintiff had no duty to provide support was inappropriate. This question must be decided by the California court under its criminal law. The Michigan court in the present case may only inquire as to the sufficiency of the extradition documents including the question of whether the demanding state has substantially charged the defendant with the commission of a crime. Since the plaintiff did not challenge the sufficiency of the extradition documents, the trial court’s granting of the writ of habeas corpus was improper.

The trial court is ordered to set aside its order granting the writ of habeas corpus and is directed to enter an order consistent with this opinion.

       The State of California on two previous occasions had brought URESA (Uniform Reciprocal Enforcement of Support Act, MCL 780.151 et seq.; MSA 25.225[1] et seq.) actions in the circuit court for the County of Manistee in 1973 and 1974. Both actions were dismissed for the reason that the jurisdiction for subsequent proceedings involving support lay within the jurisdiction of Florida where the divorce between the parties was obtained.

       In re Cooper, 53 Cal 2d 772; 3 Cal Rptr 140; 349 P2d 956 (1960), cert den, 364 US 294; 81 S Ct 104; 5 L Ed 2d 83 (1960), English v Matowitz, 148 Ohio St 39; 72 NE2d 898 (1947), Cassis v Fair, 126 W Va 557; 29 SE2d 245 (1944), Ennist v Baden, 158 Fla 141; 28 So 2d 160 (1946), State v Kriss, 191 Md 568; 62 A2d 568 (1948), People v Herberich, 276 App Div 852; 93 NYS2d 272 (1949), Ex parte Dalton, 56 NM 407; 244 P2d 790 (1952), Ex parte Bledsoe, 93 Okla Crim 302; 227 P2d 680 (1951), Lindley v Crider, 223 Ark 200; 265 SW2d 498 (1954), Ex parte Morgan, 78 F Supp 756 (SD Cal 1948), Ex parte Coleman, 157 Tex Crim 37; 245 SW2d 712 (1951), People v Sain, 29 Ill 2d 239; 193 NE2d 767 (1963).


author: T. M. Burns, J.

text:
    PEOPLE v FIGLUS
    Docket No. 77-4589.
    Submitted June 13, 1978, at Grand Rapids.
    Decided October 18, 1978.
    David P. Figlus was convicted, on his plea of guilty, of second-degree murder. The defendant was a juvenile at the time and jurisdiction over the defendant had been waived by the probate court, after a lengthy hearing and psychiatric evaluation. The defendant’s subsequent motion to withdraw his guilty plea was denied, Berrien Circuit Court, Chester J. Byrns, J. The defendant appeals, alleging that his rights had been violated by the admission of certain of the evidence during the waiver hearing before the probate court. Held:

    Failure of the defendant to challenge the alleged defects in the waiver of jurisdiction hearing prior to the entry of the defendant’s guilty plea precludes a consideration of the errors in the waiver proceeding.
    Affirmed.
    Criminal Law — Juveniles—Probate Court — Waiver of Jurisdiction — Guilty Pleas — Evidence.
    A juvenile defendant’s failure to challenge a waiver of jurisdiction by the juvenile court, before pleading guilty in circuit court, forecloses appellate review of allegations that the defendant’s rights had been violated by the improper admission of evidence during the waiver hearing held in the probate court.
    Reference for Points in Headnote
    47 Am Jur 2d, Juvenile Courts and Delinquent and Dependent Children §§ 20, 52-54.

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

      Desenberg, Desenberg & Marrs, for defendant on appeal.

      Before: D. E. Holbrook, Jr., P.J., and T. M. Burns and W. Van Valkenburg, JJ.

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

   T. M. Burns, J.

Defendant pled guilty to second-degree murder, MCL 750.317; MSA 28.549, and was sentenced to a life term. The plea was offered after jurisdiction over the defendant had been waived by the probate court under JCR 1969, 11.6 and MCL 712A.4; MSA 27.3178(598.4).

The incident upon which the current charge is based occurred December 10, 1976. On that date, defendant was 15 years old. He had spent the previous night with a friend, the brother of the victim, in his friend’s parents’ home. When his friend left for school, defendant returned to the house to rape and kill the victim. The factual basis taken at the plea proceeding showed that defendant gained the victim’s consent to intercourse by breaking her nose and then killed her by stabbing her 34 times with the hunting knife he had brought to the house for that purpose. These deeds accomplished, defendant took a shower in the adjoining bath and left for school.

Circumstances caused the police to focus their suspicion on defendant very quickly. Defendant was taken into custody at his home that afternoon. He was accompanied by his parents and an attorney. The attorney was with defendant throughout that day and evening. An agreement was reached by the prosecutor, defense counsel and defendant under which defendant would be allowed to plead guilty to a second-degree murder charge in circuit court if he made a truthful statement to the police and jurisdiction was waived by the probate court. This agreement, reached on the night of the offense, was ultimately carried out.

Jurisdiction over the defendant was waived by the probate court after a lengthy hearing and psychiatric evaluation. No appeal from the probate court’s decision to waive jurisdiction was taken in the circuit court. See, MCL 712A.22, 701.45a; MSA 27.3178(598.22), 27.3178(45.1). Instead, defendant pled guilty as noted above.

Appellate counsel was routinely appointed and moved to set aside the plea, not because of any alleged errors in the plea taking proceeding, but because it was claimed defendant’s rights had been violated by the admission of evidence during the waiver hearing before the probate court. The trial court held a hearing on this motion and issued a detailed opinion. The trial court concluded that failure to challenge the waiver of jurisdiction before pleading guilty foreclosed review of the issues raised. We agree and affirm.

The decision here is controlled by People v Morris, 57 Mich App 573, 577; 226 NW2d 565 (1975), lv den, 394 Mich 751 (1975). In Morris the defendant attempted to challenge the introduction of evidence at his waiver hearing after pleading guilty to a reduced charge. The panel concluded that by pleading guilty without seeking review of the probate waiver decision, defendant waived any infirmity in that proceeding. A similar conclusion was reached in People v Mahone, 75 Mich App 407; 254 NW2d 907 (1977), where defendant did not challenge any particular evidentiary ruling, but rather, alleged an abuse of discretion in the probate court’s decision to waive jurisdiction.

Like the juvenile defendants in Morris and Ma-hone, defendant did not invoke the circuit court’s review of the probate court’s decision to waive jurisdiction over him before pleading guilty to the information filed in the circuit court. His failure to do so waived any infirmity in that proceeding.

This result is consistent with Supreme Court precedents. In People v Peters, 397 Mich 360; 244 NW2d 898 (1976), a juvenile defendant who had pled guilty in circuit court after the probate court had waived its jurisdiction attempted to have the plea set aside because it was coerced by the existence of an illegally obtained confession. The court did not pass on the evidentiary question, i.e., whether the confession was illegally obtained, but instead held that the intervening guilty plea upon advice of counsel waived any possible error. The conviction did not rest on the confession, but on the subsequent plea. Many other cases recognize that a plea of guilty waives errors in prior proceedings and the right to challenge alleged police misconduct. In re Reno, 321 Mich 497; 32 NW2d 723 (1948), cert den, 335 US 833; 69 S Ct 21; 93 L Ed 386 (1948), People v Zunno, 384 Mich 151; 180 NW2d 17 (1970).

People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), liberalized the rule by stating that review of certain claims, such as "failure to suppress illegally-obtained evidence without which the people could not proceed”, 396 Mich at 444, were not waived by an unconditional guilty plea. Whether the court was referring to such items basic to a prosecution such as a controlled substance in a prosecution for possession of that substance, or a gun in a prosecution for carrying a concealed weapon, or more general evidentiary questions such as the existence of an arguably illegal confession, is not clear from that opinion. However, the subsequent decision in Peters indicates the former meaning was intended.

Defendant was represented by an attorney from the time he was taken into custody. Counsel did not challenge the decision to waive jurisdiction over defendant generally or these evidentiary points as contributing to the decision to waive in particular. The counseled entry of an unconditional plea forecloses our direct review of those points in an appeal from the guilty plea.

Affirmed.

       The information filed in this case charged open murder and cited the first-degree murder statute, MCL 750.316; MSA 28.548. The facts developed at the plea proceeding show the prosecution could have charged defendant with felony murder or premeditated murder.

       Had defendant challenged the probate court’s decision to waive jurisdiction over him before the plea was offered, a different question would be presented. In those circumstances it would appear that defendant could challenge the waiver decision. People v Schumacher, 75 Mich App 505; 256 NW2d 39 (1977).
      In this case, no attempt to challenge the waiver decision was made until after the time for appeal had passed. No effort was made to file a delayed appeal from that decision either in the circuit court or in this court.


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

text:
    PEOPLE v KOSS
    Docket No. 77-4942.
    Submitted June 14, 1978, at Grand Rapids.
    Decided October 18, 1978.
    Bradley R. Koss was convicted in a nonjury trial of two counts of kidnapping and two counts of rape, Kalamazoo Circuit Court, Patrick H. McCauley, J. On the day of trial the defendant moved that the judge disqualify himself because he had previously presided over a competency hearing involving the defendant and pertaining to the same offenses. The motion was denied and the case proceeded to trial. At trial, the defense of insanity was raised. Defendant appeals, alleging that the trial judge’s denial of the motion for disqualification was reversible error. Held:

    Denial of the motion was not reversible error. When he denied the motion the trial judge stated that he knew nothing about the case and had no preconceived ideas about it. The evidence presented at the competency hearing related to the defendant’s mental state at the time of trial and did not affect his insanity defense, which related to his state of mind at the time the offense was committed.
    Affirmed.
    1. Appeal and Error — Criminal Law — Judges—Disqualification— Competency Hearing.
    The Court of Appeals will not reverse a trial court’s denial of a defendant’s motion for disqualification of the judge in a nonjury trial based on the claim that the judge previously presided at the defendant’s competency hearing absent a showing of exposure by the judge to evidence relating directly to the guilt or innocence of the defendant, a preconceived notion as to defendant’s innocence or guilt, or a showing on the record of actual prejudice or bias.
    Reference for Points in Headnote
    5 Am Jur 2d, Appeal and Error § 843.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart,
      Prosecuting Attorney, and Stephen M. Wheeler, Chief of Appellate Division, for the people.

      DeVries & Lamb, P.C., for defendant on appeal.
    Before: D. E. Holbrook, Jr., P.J., and T. M. Burns and W. Van Valkenburg, JJ.

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

   D. E. Holbrook, Jr., P.J.

Defendant was charged with two counts of kidnapping, MCL 750.349; MSA 28.581, and two counts of rape, MCL 750.520; MSA 28.788. It was the claim of the prosecution that the defendant forced two girls, at gunpoint, to enter his car following which he drove around for approximately 15 to 20 minutes terminating the drive in a wooded area and forcing them to engage in sexual intercourse.

On the day of trial defendant waived jury trial and moved the trial judge to disqualify himself because he had previously presided at a competency hearing regarding the same defendant and pertaining to the same offenses. Following denial of the motion the case proceeded to trial, defendant raised insanity as a defense and was found guilty on all four counts. Thereafter sentenced to a term of life imprisonment on each conviction, defendant appeals as of right.

While defendant raises three issues on appeal we find but one worthy of discussion. Defendant claims it was reversible error for the trial court to have denied his motion for disqualification on the grounds that the trial judge had presided at a competency hearing involving the defendant relating to the same offenses.

With respect to disqualification of a trial judge there appear to be two lines of cases. In People v Boyd, 49 Mich App 388; 212 NW2d 333 (1973), the Court held that disqualification is not automatically required if the trial judge has previously presided at a Walker hearing, its reasoning being that such a hearing does not relate to the guilt or innocence of the accused. Similarly in People v Grable, 57 Mich App 184; 225 NW2d 724 (1974), this Court distinguished cases involving strong indications of prejudice and ruled that prejudice would not be presumed in a case where a trial judge had heard defendant’s guilty plea even though he had been exposed to facts not on record. In that case the Court found that the trial judge had no predisposition of guilt. In People v Irwin, 47 Mich App 608; 209 NW2d 718 (1973), this Court reiterated the general rule that a trial judge, who had been exposed to a case prior to trial, would not be disqualified from presiding at trial unless actual prejudice or bias is shown on the record.

While the rule set forth in Irwin, supra, is not without exception the line of cases which have held prejudice to exist were situations where the trial court sitting without a jury referred to a preliminary examination transcript and where a trial judge sitting without a jury knew the results of a polygraph examination taken by the defendant. People v Ramsey, 385 Mich 221; 187 NW2d 887 (1971), and People v Hale, 72 Mich App 484; 250 NW2d 103 (1976). In both of these cases obvious prejudice could result because the trial court had before it evidence which directly related to the innocence or guilt of the accused. These represent the second line of cases.

In denying defendant’s pretrial motion for disqualification the trial judge reviewed his memory and his notes made during the competency hearing and stated he knew nothing about the case and had no preconceived ideas about it. We find the instant case to be analogous to Boyd and Grable, supra, where the trial court was not exposed to evidence relating to the guilt or innocence of the accused and where the court had no preconceived notion as to the guilt or innocence of the defendant. Th® evidence presented at the competency hearing related to defendant’s mental state at the time of trial and did not affect defendant’s insanity defense which related to his state of mind at the time the offense was committed. Absent exposure by the trial court to evidence relating directly to the guilt or innocence of the accused, a preconceived notion as to defendant’s innocence or guilt or a showing on the record of actual prejudice or bias we will not reverse a trial court’s denial of a motion for disqualification in a nonjury trial where the trial judge previously presided at a competency hearing. None of the foregoing exists here.

Having examined defendant’s two remaining allegations of error we find them to be without merit. People v Hardesty, 67 Mich App 376; 241 NW2d 214 (1976), People v Keeth, 63 Mich App 589; 234 NW2d 717 (1975), People v Baker, 60 Mich App 309; 230 NW2d 409 (1975), People v Chism, 390 Mich 104; 211 NW2d 193 (1973).

Affirmed.

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


author: D. E. Holbrook, P.J. M. J. Kelly, J.

text:
    FLOWER v GENSTERBLUM
    Docket No. 78-79.
    Submitted June 13, 1978, at Lansing.
    Decided October 18, 1978.
    Leave to appeal applied for.
    Plaintiff William Flower, a state police officer, was struck by defendant Donald Gensterblum’s motor vehicle while on duty and in the course of his employment. He filed a complaint against Mr. Gensterblum alleging negligence and against defendant The Brewery, Inc., alleging violation of the dramshop act. Plaintiff sought damages for "severe, painful and permanent injuries” and for "serious impairment of body functions and permanent serious disfigurement” but did not seek recovery for economic losses. The Michigan State Accident Fund, the Michigan state police workmen’s compensation insurer which had made certain payments to Mr. Flower pursuant to the Workmen’s Compensation Disability Act, sought to intervene, first by consent and then by motion, to recover its payments from any damages Mr. Flower might recover. The Ingham Circuit Court, Michael G. Harrison, J., denied the motion and certified the denial as a final order. The Michigan State Accident Fund appeals. Held:

    The Michigan State Accident Fund is not discharging an obligation of the third-party motorist tortfeasor in paying compensation to the victim for economic losses since the Legislature has limited the motorist’s liability to noneconomic losses; therefore, the Michigan State Accident Fund is not subrogated to the claim of the victim against the third-party motorist and has no standing to intervene.
    Affirmed.
    M. J. Kelly, J., dissented. While he agrees with respect to plaintiffs claim against the motorist he would hold that since plaintiff might recover damages for economic losses against The Brewery, Inc., under the dramshop act, the Michigan State Accident Fund is subrogated to plaintiff with respect to his claim under the act.
    Reference for Points in Headnotes
    [1-3] 82 Am Jur 2d, Workmen’s Compensation §§ 429, 434.

      Opinion of the Court
    1. Workmen’s Compensation — Statutes—Subrogation—Torts— Third-Party Tortfeasor — Economic Losses — Noneconomic Losses.
    Subrogation applies only when a person, not acting voluntarily but under some compulsion, pays a debt or discharges an obligation for which another is principally liable and which in equity and good conscience ought to be discharged by the latter; a workmen’s compensation carrier is not discharging the obligation of another where the employee is injured by a third-party motorist since the Legislature has limited tort liability of motorists to damages for noneconomic losses and since the workmen’s compensation act confers upon an injured employee an immediate right to recover economic damages from the employer’s insurer and a workmen’s compensation carrier is therefore not subrogated to the claim of the injured employee against the third-party motorist and has no standing to intervene (MCL 500.3135[2][b], 418.827[5]; MSA 24.13135[2][b], 17.237[827][5]).
    2. Workmen’s Compensation — Statutes—Third-Party Tortfeasors —Right of Reimbursement of Workmen’s Compensation Insurer — Noneconomic Losses.
    A statute allowing reimbursement of a workmen’s compensation insurer from an employee’s recovery from a third-party tortfeasor does not apply to a suit by an employee injured by a motorist since the no-fault act limits the liability of the motorist to damages for noneconomic injury (MCL 500.3175[2][b]; MSA 24.13135[2][b]).
    Dissent by M. J. Kelly, J.
    3. Workmen’s Compensation — Statutes—Third Party Tortfeasors —Right of Reimbursement of Workmen’s Compensation Insurers — Noneconomic losses.

      A statute allowing a workmen’s compensation insurer reimbursement from an employee’s recovery against a third-party tortfeasor does not apply to a suit by an employee injured by a motorist because the no-fault act limits the liability of the motorist to damages for noneconomic injury, however, it does apply to a claim based upon the dramshop act since the act would permit recovery for both economic and noneconomic losses (MCL 436.22; MSA 18.993).

      Van Deveer, Garzia, Tonkin, Kerr & Heaphy,

      P.C. (by C. F. Boyle, Jr.), for plaintiff-appellant Michigan State Accident Fund.

      Smith & Maher, for plaintiff-appellee Flower.

      Warner, Hart, Morgan, Fuzar & Williams, for defendant-appellee The Brewry, Inc.

      O’Brien & Noud, for defendant-appellee Gensterblum.
    Before: D. E. Holbrook, P.J., and M. J. Kelly and P. J. Marutiak, JJ.

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

   D. E. Holbrook, P.J.

On October 10, 1975, plaintiff William Flower, a state police officer, was struck by defendant Donald Gensterblum’s vehicle while on duty and in the course of the plaintiffs employment. On May 20, 1977, Flower filed a complaint against Gensterblum, alleging negligence, and against defendant The Brewery, Inc., doing business as The Silver Dollar Saloon, alleging violation of the dramshop act, MCL 436.22; MSA 18.993. The plaintiff sought $500,000 damages, denominated recovery for "severe, painful and permanent injuries” and "serious impairment of body functions and permanent serious disfigurement”. In accord with the no-fault act, recovery for economic losses was not sought.

Michigan State Accident Fund, workmen’s compensation insurer for the Michigan state police, paid wage loss benefits to Flower from the date of the accident through October 29, 1976. The Accident Fund also paid plaintiffs medical expenses through October of 1977. These payments were made pursuant to the Worker’s Disability Compensation Act of 1969, MCL 418.101 et seq.; MSA 17.237(101) et seq.

After the Accident Fund was denied consent to intervene in plaintiffs action against Gensterblum, it filed a motion to intervene pursuant to GCR 1963, 209.1(1) and MCL 418.827(1); MSA 17.237(827X1), in order to recover its payments from any damages plaintiff might receive. Plaintiff Flower and defendants Gensterblum and The Brewery all opposed the Accident Fund’s motion to intervene. The motion was denied by the circuit court, which also certified its action to be a final order subject to appeal as of right.

Appellant Accident Fund contends that GCR 1963, 209.1(1), when considered in conjunction with the Worker’s Disability Compensation Act, confers upon it an unconditional right to intervene in the instant action. Rule 209.1(1) provides that:

"Anyone shall be permitted to intervene in an action
"(1) when a statute of this state confers an unconditional right to intervene.”

According to appellant, MCL 418.827(1); MSA 17.237(827X1) grants it such a right. It states:

"Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies but the injured employee or his dependents or personal representative may also proceed to enforce the liability of the third party for damages in accordance with the provisions of this section. If the injured employee or his dependents or personal representative does not commence the action within 1 year after the occurrence of the personal injury, then the employer or carrier, within the period of time for the commencement of actions prescribed by statute, may enforce the liability of such other person in the name of that person. Not less than 30 days before the commencement of action by any party under this section, the parties shall notify, by certified mail at their last known address, the bureau, the injured employee, or in the event of his death, his known dependents or personal representative or his known next of kin, his employer and the carrier. Any party in interest shall have a right to join in the action. ” (Emphasis added.)

With respect to reimbursement, it provides at MCL 418.827(5); MSA 17.237(827X5):

"In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall ñrst reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.” (Emphasis added.)

Clearly, were this an ordinary tort action arising out of the plaintiffs employment but not involving a motor vehicle, the appellant’s claim for intervention would be uncontestable. The policy behind this requirement of reimbursement was discussed by the Supreme Court in Pelkey v Elsea Realty & Investment Co, 394 Mich 485; 232 NW2d 154 (1975). In Pelkey the Court relied upon this section of the worker’s disability act to uphold the insurer’s right to treat two-thirds of an employee’s third party settlement for pain and suffering as credit in its favor when the employee sought additional benefits for economic loss. At p 492 it quoted 2A Larson, Workmen’s Compensation Law, § 74.35, p 14-246 to the effect that:

" '[I]t is quite clear, as the cases now stand, that the prevailing rule in the United States refuses to place an employee’s third-party recovery outside the reach of the employer’s lien on the ground that some or all of it was accounted for by damages for pain and suffering.’ (Footnote omitted.)”

The Court then upheld the majority view, as adopted in Michigan by MCL 418.827(5), against due process and equal protection attacks. The Court first noted that as originally enacted, workmen’s compensation statutes required an election of remedies: the injured employee could not pursue recovery from both the tortfeasor and the insurer. Pelkey, supra at 493, Albert A Albrecht Co v Whitehead & Kales Iron Works, 200 Mich 109; 166 NW 855 (1918). As the requirement of election of remedies had been abolished, therefore theoretically allowing the employee to seek a double recovery, the Court was unabashed in allowing the insurer to claim reimbursement. "We do not find the provision for reimbursement to be an arbitrary denial of a property right. The right to reimbursement is justified by the abrogation of the election of remedies requirement.” Pelkey, supra at 493. Allowing reimbursement in these cases basically meant that the victim could claim the larger of his two recoveries, and no more.

The Court also allowed an insurer to seek reimbursement out of the employee’s settlement with a third party in Transamerican Freight Lines, Inc v Quimby, 381 Mich 149; 160 NW2d 865 (1968). This case is of limited precedential value, however, due to the unique fact situation, amounting very nearly to the creation of an estoppel against the employee.

Appellees contend, and the trial court held, that the worker’s compensation act as interpreted in Pelkey is inapplicable to the instant case due to the subsequent enactment of the no-fault insurance act of 1973, MCL 500.3101 et seq.; MSA 24.13101 et seq., which bars suit in tort against third persons for economic losses. MCL 500.3135; MSA 24.13135. This section provides in pertinent part that:

"(2) Notwithstanding any other provision of law, tort liability [with respect to the operation of motor vehicles] * * * is abolished except as to:
"(b) Damages for noneconomic loss [or excessive economic loss or intentionally inflicted injuries].” (Emphasis added.)

On one of two occasions when this Court has considered this question previously it decided Wrobel v Wayne County Road Comm, 79 Mich App 484; 261 NW2d 58 (1977), lv pending. In a very brief opinion the Court held that the defendant road commission was entitled to be subrogated to the rights of the employee so that it might recover its payments of approximately $20,000 for lost wages and medical expenses (so-called economic loss) from the $25,000 which the defendant received from the tortfeasor in settlement of his claims for noneconomic loss. The majority explained its reasoning as follows at 486:

"Such a result does not seem equitable. However, in Pelkey v Elsea Realty & Investment Co, 394 Mich 485; 232 NW2d 154 (1975), the Supreme Court allowed the defendant to be subrogated for plaintiffs pain and suffering, a noneconomic loss. We are bound by the Pelkey decision.”

Judge T. M. Burns’ concurring opinion agreed that Pelkey was controlling. Nevertheless, he admonished at 486 that:

"An employer or a compensation carrier should not be allowed to seek reimbursement out of a recovery by the employee against a third-party tortfeasor where the employer or carrier did not pay compensation for the injury which the recovery represents. Compensation carriers do not pay benefits for noneconomic loss.”

Judge Burns’ concern in this regard was justified in that the compensation carrier’s right to indemnity has traditionally been interpreted as a statutorily created right of subrogation. Bay State Milling Co v Izak, 310 Mich 601, 604; 17 NW2d 769 (1945), and authorities cited therein. "[SJubrogation”, according to 83 CJS, Subrogation, § 8, p 600, "will be applied whenever a person not acting voluntarily, but under some compulsion, pays a debt or discharges an obligation for which another is primarily liable and which in equity and good conscience ought to be discharged by the latter”. (Emphasis added.)

Of course, such a right of indemnification and subrogation created no difficulties when legislative intent was clearly to permit actions against third parties precisely in order that the compensation carrier might be reimbursed. Gamble v American Asbestos Products Co, 381 Mich 105, 112; 159 NW2d 839 (1968), Petrosian v Frizell, 25 Mich App 141, 145; 181 NW2d 10 (1970), Arnett v General Motors Corp, 22 Mich App 658; 177 NW2d 704 (1970). For this reason, it was also considered a necessity, in order to avert the potential for unconscionable subversion of the statutory scheme, that the carrier be allowed to reach any recovery of the injured employee, regardless of its denomination. Quimby, supra.

The legislative intent is no longer clear. Although the Wrobel Court gave the matter little attention, enactment of the no-fault statute and the consequent elimination of tort liability for economic loss indicates a legislative determination that neither the victim nor his insurer shall recover such damages from the tortfeasor. At the same time it expressly reserved liability for noneconomic loss.

In a more recent case the panel of Judges Riley, author, T. M. Burns and Cynar considered the identical question in Reliance Ins Co v Messina Trucking, Inc, 83 Mich App 159; 268 NW2d 328 (1978). In a unanimous decision, the Court relied upon passage of the no-fault act, supra, subsequent to the Pelkey decision, in holding that an insurer is not entitled to recover benefits paid from the employee’s recovery for noneconomic loss. The Reliance Court took note of the Wrobel opinion, however, it found the reasoning of Murray v Ferris, 74 Mich App 91; 253 NW2d 365 (1977) more convincing in holding MCL 418.827(5); MSA 17.237(827)(5) "unconstitutional as applied to employees injured in automobile accidents where tort recovery is limited by MCL 500.3135; MSA 24.13135”. 83 Mich App at 165. The Murray Court had held MCL 500.3116; MSA 24.13116, which allowed the no-fault insurer to recoup his damages from the injured insured’s noneconomic loss recovery against the tortfeasor, to be unconstitutional as a violation of equal protection. It noted at 95 that "[t]he function of recovery in tort is to make the victim whole”. The Court found that since persons who do not suffer noneconomic losses are fully recompensed, whereas persons who suffer such losses, when forced to indemnify their insurer are not, the statutory scheme in this respect constituted arbitrary discrimination, contrary to Const 1963, art 1, §§ 2 and 17.

We do not find it necessary to question the constitutionality of MCL 418.827(5), in order to adopt the result reached in Reliance. As noted above, the Supreme Court in Pelkey felt it necessary to allow the workmen’s compensation insurer subrogation rights, even with respect to damages denominated "noneconomic”, in order to avoid the possibility of double recovery. The Supreme Court’s concern in this regard was even more clearly illuminated in Quimby, supra, where to have held otherwise would have been grossly unfair to the insurer. Since enactment of no-fault, however, it can no longer be said that the carrier is "discharging the obligation of another”. The legislative repudiation of tort liability in this instance must be seen as a restriction upon the compensation carrier’s standing under MCL 418.827(1).

As noted above, the worker’s compensation act confers upon the injured employee an immediate right to recover economic damages from the employer’s insurer. Under the no-fault act, specifically MCL 500.3135, the employee is not allowed to seek a second recovery for these damages from the tortfeasor: "tort liability [for economic loss] is abolished”, MCL 500.3135(2). Appellant State Accident Fund’s right to intervene in plaintiff’s action arises only as a "party in interest” under MCL 418.827(1). In order for the insurer’s right of subrogation to arise under this statute, "the injury for which compensation is payable” must be one "creating a legal liability” in another. The plaintiff received compensation for economic injury, and by contrast to the state of the law when Pelkey was decided by the Supreme Court, the tortfeasor is no longer liable for ordinary economic injuries. Therefore, under MCL 418.827(1), appellant State Accident Fund is no longer a party in interest, has not satisfied the debt of another, and has no standing to intervene under GCR 1963, 209.1(1).

Although MCL 418.827(5) appears to contradict this interpretation, it is troublesome primarily because it preceded the no-fault insurance legislation. Unlike MCL 418.827(1), it does not confer standing. It is a declaration of priorities which reflects legislative concern over double recovery by the plaintiff to the exclusion of the insurer. Read together, subsections (1) and (5) obviously presuppose that the employee’s recovery in tort will include the amounts received by him from the insurer, thereby, under standard insurance principles, conferring a right of subrogation upon the insurer. Where the insurer lacks standing under subsection (1), however, the declaration of priorities contained in sub-section (5) must not apply. Although the resulting interpretation requires a tortured reading of subsection (5), we find this to be an unavoidable result of the subsequent enactment of the no-fault insurance scheme with its radical departure from the previously existing tort law. The fundamental assumption underlying the enactment of subsection (5) is no longer operative.

As suggested earlier in Wrobel and Reliance, to reach any other result under these circumstances would be to deny the victim a complete recovery. As the Court itself recognized, the result reached in Wrobel was inequitable. We find it to have been unnecessary as well. Clearly the no-fault insurance scheme was not intended to prevent complete recovery on behalf of the victim. It merely separated the plaintiff’s recovery into two distinct classes, one recoverable from the tortfeasor, the other recoverable from the injured’s insurer alone. It is true that the employee may seek to claim a second recovery for economic damages from his automobile insurer. According to the general view, such a recovery would not be subject to the compensation carrier’s claims for reimbursement, as it is considered a personal contract right, bargained for by the victim. 101 CJS, Workmen’s Compensation, § 1045, p 628. See also Meyers v Meyers Oil Co, 88 SD 166; 216 NW2d 820 (1975). The fact that some plaintiffs may thus achieve a disfavored double recovery by carrying personal automobile insurance coverage, we consider to be a problem for the Legislature to consider.

Under the facts in this case we rule that the appellant must be denied standing to intervene.

Affirmed. Costs to appellees.

P. J. Marutiak, J., concurred.

M. J. Kelly, J.

(dissenting). I concur in the holding of the majority that a workmen’s compensation insurer is not entitled to reimbursement for economic loss benefits paid to the injured employee out of that employee’s recovery of noneconomic losses from the third-party tortfeasor. However I’m not prepared to hold that the intervention and reimbursement provisions of MCL 418.827(1) and (5); MSA 17.237(827)(1) and (5) are completely inapplicable to the present case. This conclusion is dictated by the procedural posture of this case which demonstrates an instance where intervention and reimbursement would be entirely appropriate.

Although seeking only noneconomic damages in this suit, plaintiff joined the driver of the automobile, defendant Gensterblum, with The Brewery, Inc., d/b/a The Silver Dollar Saloon as a codefendant, alleging liability based upon the dramshop act. MCL 436.22; MSA 18.993. This aspect of the present suit is an ordinary tort action and there is no question but that the dramshop act, which authorizes recovery of actual and exemplary damages, would permit the plaintiff to recover both economic and noneconomic losses from the co-defendant Brewery. Thus, if the majority’s holding is applicable to plaintiff’s recovery from both defendants, the possibility of double recovery, now obviated by MCL 500.3135; MSA 24.13135 as regards the automobile driver, is resurrected. I do not think that the majority intended this result.

In my opinion, the limitation which the majority has placed upon the intervention and reimbursement provisions of the workmen’s compensation act should be read as applying only where the no-fault statute limits the injured employee’s recovery to noneconomic losses. In the case of liability based upon the dramshop act, where recovery of economic losses is possible, these provisions, as interpreted in Pelkey and Wrobel, should control and permit both intervention and reimbursement by the insurance carrier.

I would therefore grant the Michigan State Accident Fund’s motion to intervene pending the Supreme Court’s review of the holding in Wrobel. The trial court could enter a protective order prohibiting the Michigan State Accident Fund’s attorneys from interfering with the control and progress of the case by plaintiff’s attorney and further prohibiting disclosure of the fact of workmen’s compensation insurance from the jury.

       As noted above, the plaintiff seeks only noneconomic damages in the instant complaint. Should his recovery exceed his noneconomic damages, as reasonably calculated, the appellant may then intervene.


text:
    PEOPLE v SCHMIDT
    Docket Nos. 78-319, 78-1213.
    Submitted June 12, 1978, at Grand Rapids.
    Decided October 18, 1978.
    Leave to appeal denied, 406 Mich —.
    Allen F. Schmidt was charged in two separate informations with delivery of marijuana, and after denial of his motion to quash the informations, he pled guilty to two counts of possession of marijuana in exchange for dismissal of the delivery charges, Isabella Circuit Court, Paul F. O’Connell, J. Defendant appeals, alleging that the classification scheme of the Controlled Substances Act as it relates to marijuana is unconstitutional. Held:

    1. The defendant, by pleading guilty, did not waive his right to contest the constitutionality of the statute upon which the prosecution was based.
    2. The Controlled Substances Act is subject to scrutiny under the traditional equal protection test, and because the defendant does not claim that any fundamental right is involved, it is the defendant’s burden to show that the legislative decision to control marijuana and to place it in Schedule 1 of the act lacked a reasonable basis, or was arbitrary. Given the state of present day medical and scientific knowledge regarding marijuana, it cannot be said that the Legislature’s decision to regulate marijuana was arbitrary.
    Affirmed.
    1. Criminal Law — Plea of Guilty — Constitutional Law — Waiver.
    A defendant’s plea of guilty does not waive the defendant’s right to contest whether a statute upon which the prosecution is based is constitutional.
    2. Constitutional Law — Equal Protection — Substantial Relation to Object Test.
    Application of the "substantial relation to the object” test to determine whether legislation is violative of equal protection is dependant upon two factors: the legislation must carve out a discrete exception to a general rule, and the legislation must have remained in force for a sufficiently long time so that it may no longer be considered experimental.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 495.
    [2] 16 Am Jur 2d, Constitutional Law § 501.
    [3] 16 Am Jur 2d, Constitutional Law § 498.
    [4, 5] 25 Am Jur 2d, Drugs, Narcotics, and Poisons §§ 16, 17.

      3. Constitutional Law — Statutes—Controlled Substances Act— Equal Protection — Traditional Test — Criminal Law.
    The Controlled Substances Act is subject to the traditional test of equal protection, and because a defendant who is attacking the statute’s classification of marijuana as one of the controlled substances does not claim that any fundamental right is involved he has the burden of demonstrating that the Legislature’s decision to control marijuana and the decision to classify it as they did lacked a reasonable basis (MCL 335.301 et seq.; MSA 18.1070[1] et seq.).

    4. Drugs and Narcotics — Marijuana—Legislative Choice — Arbitrary Choice.
    The choice of the Legislature to regulate marijuana cannot be said to be arbitrary so long as a substantial body of scientific literature continues to conclude that marijuana use is or may be harmful.
    5. Drugs and Narcotics — Controlled Substances — Legislative Choice.
    The Legislature may find control of a substance feasible in one circumstance and not in another; it is not necessary that the Legislature act on all perceived evils in an area at one time.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph.T. Barberi, Prosecuting Attorney (by Keith D. Roberts, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Gray & Taylor, P.C., for defendant.
    Before: D. E. Holbrook, Jr., P.J., and T. M. Burns and W. Van Valkenburg, JJ.

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

   T. M. Burns, J.

Defendant was charged in two separate informations with delivery of marijuana, MCL 335.341(1)(c); MSA 18.1070(41)(l)(c), on two specific dates in 1975. He moved to quash each information, claiming the Controlled Substances Act, insofar as related to marijuana, was unconstitutional. The trial court denied the motion, after a hearing, on the basis of this Court’s decision in People v Alexander, 56 Mich App 400; 223 NW2d 750 (1974). Defendant then entered bargained pleas of guilty to two counts of possession of marijuana, MCL 335.341(4)(d); MSA 18.1070(41)(4)(d), in exchange for dismissal of the delivery counts.

Defendant renews his constitutional attack on the statute in this appeal. The prosecution argues that the issue has not been preserved because defendant pled guilty. We disagree. A plea of guilty does not waive the right to contest whether a statute upon which the prosecution is based is constitutional. People v Alvin Johnson, 396 Mich 424, 440, 442; 240 NW2d 729 (1976). We may, therefore, properly consider whether the Legislature’s decision to classify marijuana as a controlled substance or the Legislature’s decision to place marijuana in Schedule 1 resulted in a deprivation of defendant’s rights to equal protection of the law.

The Michigan Controlled Substances Act of 1971 is based on the uniform controlled substance act approved by the National Conference of Commissioners on Uniform State Laws in 1970. See generally, 9 ULA, Matrimonial, Family & Health Laws, 145. The uniform act in turn relied largely upon the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USCA 801, et seq.

The uniform act has been adopted, with some alterations, by 43 states, Puerto Rico and the Virgin Islands. 9 ULA, 1974-1977 Supplementary Pamphlet, 47. The act creates five schedules of substances which are considered harmful or have a potential for causing harm, lays out the criteria for adding substances to the schedules or changing the classification of a substance currently in a schedule, creates a regulatory scheme to prevent illicit drug diversion from the proper channels of commerce and provides penalties for violation of the act.

Defendant, by his motion to quash and this appeal, challenges the classification scheme of the act as it relates to marijuana.

Much of defendant’s brief is devoted to the lack of administrative action in classifying marijuana as a Schedule 1 substance, MCL 335.314(c); MSA 18.1070(14)(c), and the lack of administrative review to determine whether marijuana should remain in Schedule 1. We perceive this challenge to be misdirected. Marijuana was placed in Schedule 1 by the Legislature when it adopted the act. 1971 PA 196. We, therefore, are not reviewing administrative action, but legislative action. If the scheduling of marijuana denied equal protection, it is because of legislative action. We review defendant’s claim from that perspective.

As noted above, defendant bases his challenge to the legislative decision to place marijuana in Schedule 1 and the decision to control marijuana at all on the equal protection clause. In People v Alexander, supra, a different panel faced the same challenge to the same legislative classification. Relying primarily on United States v Kiffer, 477 F2d 349 (CA2, 1973), the Court applied the traditional equal protection test and concluded that the legislation was not a violation of this constitutional guarantee. Defendant asks that we reexamine that decision in light of subsequent legal and scientific developments.

Defendant contends that the applicable equal protection standard should not be the "traditional” equal protection review used by the Alexander panel, but the "substantial-relation-to-the-object” test used by Justice Levin in Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975). Application of the Manistee Bank equal protection test is dependent on two factors: the legislation must carve out a discrete exception to a general rule (such as requiring a showing of gross negligence by a guest passenger to recover for loss or injury from his host, while all others recover on a showing of mere negligence) and the legislation must have remained in force for a sufficiently long time so that it may no longer be considered experimental. 394 Mich at 671.

We do not find defendant’s arguments on these points persuasive. The legislative decision to place controls on marijuana, from among the galaxy of substances, does not compare with the legislative decision to single out guest passengers for special treatment in recovering for a loss resulting from an automobile accident.

We conclude that the traditional equal protection test must be applied. Since defendant does not claim that any fundamental right is involved, the burden is on defendant (the person attacking the classification) to demonstrate that the legislative decision to control marijuana and the legislative decision to place it in Schedule 1 lacked a reasonable basis, i.e., that the decision was essentially arbitrary. Forest v Parmalee, 402 Mich 348, 356-357; 262 NW2d 653 (1978).

Defendant presented testimony of experts below and has asked that we take judicial notice of other scientific data which he claims demonstrates that marijuana is a relatively harmless substance and, therefore, that the Legislature acted arbitrarily in controlling the substance and in placing it in Schedule 1.

The testimony in this case below would not be sufficient to declare the statute unconstitutional. Defendant’s witnesses recognized the split in medical opinion and expressed the belief that much is still to be learned in this area. Divided scientific opinion is not a firm enough basis upon which to declare a statute unconstitutional.

Assuming that this Court could be expected to cull the scientific journals and other material on its own, the result contended by defendant would not be compelled from that search. Other courts examining this question have concluded that at this point in time there is no uniform scientific opinion and, therefore, the respective legislative bodies did not act arbitrarily in deciding to control marijuana. See, e.g., State v Mitchell, 563 SW2d 18 (Mo, 1978), Marcoux v Attorney General, — Mass —; 375 NE2d 688 (1978), State v Murphy, 117 Ariz 57; 570 P2d 1070 (1977), State v Infante, 199 Neb 601; 260 NW2d 323 (1977), Ross v State, — Ind App —; 360 NE2d 1015 (1977), State v Rao, 171 Conn 600; 370 A2d 1310 (1976) (reversing a lower court determination of unconstitutionality), State v Leins, 234 NW2d 645 (Iowa 1975), Ravin v State, 537 P2d 494 (Alas, 1975), Blincoe v State, 231 Ga 886; 204 SE2d 597 (1974), State v Donovan, 344 A2d 401 (Me, 1975), State v O’Bryan, 96 Idaho 548; 531 P2d 1193 (1975), Kreisher v State, 303 A2d 651 (Del, 1973), Gaskin v State, 490 SW2d 521 (Tenn, 1973), People v Demers, 42 App Div 2d 634; 345 NYS2d 184 (1973), State v Kaplan, 23 NC App 410; 209 SE2d 325 (1974), State v Tabory, 260 SC 355; 196 SE2d 111 (1973).

We do not necessarily agree with statements, such as appear in Brantley v State, 548 P2d 675 (Okla Crim App, 1976), that the evidence compels the conclusion that marijuana use is detrimental to public health and safety, or the South Carolina assessment that the issue is obviously without merit. State v Tabory, supra. Indeed, we agree with the statement that the Legislature could not regulate a harmless drug, Blincoe v State, supra, but, in light of present day medical and scientific knowledge there is room for doubt. As the court said in State v Mitchell, supra, it is a "debatable medical issue”. Under the circumstances the choice of whether marijuana will be subject to regulation is still one for the Legislature, not the Court. As long as a substantial body of scientific literature continues to conclude that marijuana use is or may be harmful, we cannot say that the Legislature’s choice to rely on that evidence is arbitrary.

Nor does the fact that the Legislature has failed to control other substances, such as tobacco, alcohol, or caffeine, require that we find an equal protection violation. The Legislature, because of the role a particular substance plays either economically or socially, could find control feasible in one circumstance and not in another. It is not necessary that the Legislature act on all perceived evils in an area at one time. State v Mitchell, supra, State v Leins, supra, State v Kantner, 53 Hawaii 327; 493 P2d 306 (1972), Commonwealth v Leis, 355 Mass 189; 243 NE2d 898 (1969).

In determining whether the legislative decision to classify and control some substances while not taking a like action as to others was arbitrary, we must also recognize that significant political roadblocks exist which preclude regulating some substances which are known to be dangerous. Ravin v State, supra.

In summary, we find that the state of present day medical and scientific knowledge does not allow us to find the Legislature’s decision to regulate marijuana to have been, or to be, essentially arbitrary. Scientific research in the area is ongoing. Many of the former "truths” about marijuana have been shown to be myths. But not all questions as to the safety of this substance have been answered. Nor will they be answered in the courts. New scientific findings which become generally accepted in the appropriate field may require a different result. The day may come when we are able to join defendant in his conclusion that the state has no right to regulate marijuana. That day has not yet come.

We are definitely not saying the Legislature must continue the present classification. To the contrary, we would continue to urge the Legislature to reevaluate the entire marijuana "problem”. See, Joslin v 14th District Judge, 76 Mich App 90, 100; 255 NW2d 782 (1977) (T. M. Burns, concurring), lv den, 402 Mich 833 (1977). A proper respect for the legislative function requires that the statute be found constitutional even if we may personally question the wisdom of continuing criminal sanctions for its use or possession. The Legislature is better equipped to make the findings and decisions in this area. We are allowed to intervene only if that body’s decision conflicts with the constitution. In this case it does not.

Affirmed.

       MCL 335.301 et seq.; MSA 18.1070(1) et seq.

       US Const, Am XIV, § 1: "No state shall * * * deny to any person within its jurisdiction the equal protection of the laws.”
      Const 1963, art 1, § 2 provides: "No person shall be denied the equal protection of the laws * * * .”

       The traditional equal protection test is a two tiered approach with the level of judicial scrutiny depending on the interest involved. The legislative classification is subject to strict scrutiny if the right asserted is classified by the court as fundamental. Defendant admits he has no fundamental right to possess marijuana. If the right is not fundamental, the legislation is presumed valid and overturned only if the classification is not reasonably or rationally related to the object of the legislation. See, People v Alexander, 56 Mich App at 403, Forest v Parmalee, 402 Mich 348, 356; 262 NW2d 653 (1978).

         Manistee Bank was a three-to-two decision with two justices not participating. Such a decision is binding on this Court until overruled or modified. Negri v Slotkin, 397 Mich 105; 244 NW2d 98 (1976).

       This list of authorities is not intended to be exhaustive. The list is in addition to those cases cited in People v Alexander, supra, 56 Mich App at 402, n 1. No case from a court of last resort was found declaring a statute unconstitutional on equal protection grounds.

        Ravin v State, 537 P2d 494 (Alas, 1975), rejected the defendant’s equal protection challenge but declared that the Alaska statute was unconstitutional insofar as it prohibited possession of marijuana in a private residence on the basis of a specific state constitutional provision relating to the right of privacy. Similar statements appear in opinions of our courts. See, People v Sinclair, 387 Mich 91, 133-134; 194 NW2d 878 (1972), (Opinion of T. G. Kavanagh, J).
      Defendant has made no challenge to the statute on the basis of a right to privacy in this case.

       The Massachusetts Supreme Court recently reexamined the present question in Marcoux v Attorney General, supra. That court stated that the statute would be unconstitutional if the doubts about the safety of marijuana were resolved on the side of safety "beyond reasonable scientific dispute”. — Mass at —; 375 NE2d at 689.
      We need not decide what quantum of scientific evidence would persuade us to declare the statute unconstitutional. While we might consider the Massachusetts standard too severe, a court should expect that at least a substantial body of credible scientific evidence be presented on the question. Examining the present record and the authorities mentioned in the cases cited above shows what we perceive to be a genuine lack of information on several critical points. Until long term studies are completed and more is known about the precise effect of marijuana on certain types of persons, that substantial body of authority will not be available.