text:
    HURON VALLEY HOSPITAL, INC v DEPARTMENT OF PUBLIC HEALTH
    Docket No. 78-3566.
    Submitted June 21, 1979, at Detroit.
    Decided September 4, 1979.
    Huron Valley Hospital, Inc., brought an action against the Michigan Department of Public Health and its Director, Maurice S. Reizen, seeking, among other things, to enjoin the department from issuing any certificate of need for acute care hospital beds in the area known as Service Area 76. The plaintiff at the time was attempting to secure a certificate of need for itself for the construction of a proposed hospital and its initial application had been denied. The City of Pontiac and the City of Pontiac Hospital Building Authority had also applied for a certificate of need for renovation of Pontiac General Hospital. An ex parte temporary restraining order was issued by the Oakland Circuit Court. Subsequently, the city and its building authority were allowed to intervene as defendants, a preliminary injunction was issued preventing issuance of a certificate to the city during the pendency of the action, and several counts of plaintiff’s complaint were dismissed. Subsequently, a motion was filed by all of the defendants for accelerated judgment as to the claim for injunctive relief or, alternatively, for the dissolution of the temporary injunction. The circuit court, Francis X. O’Brien, J., ordered the temporary injunction dissolved. Plaintiff appeals, alleging that the city and its building authority did not have standing to bring the motion to dissolve the temporary injunction, and that the dissolution of the injunction was an abuse of the trial judge’s discretion. Held:

    1. It is immaterial whether or not the city had standing to bring the motion. The motion was also brought by the Department of Public Health and its director, who, because the temporary injunction affected them, did have standing. The motion was properly before the court.
    2. Dissolution of a temporary injunction is discretionary with the trial court. The court did not abuse that discretion where there was a showing that the injunction was causing the city serious problems in the operation of Pontiac General Hospital and that continuance of the injunction was not absolutely necessary to protect the plaintiff from irreparable harm. Additionally, even though the dissolution of the temporary injunction effectively disposed of the first count of plaintiffs complaint, the motion to dissolve should not be treated as though it was a motion for summary judgment and reviewed accordingly on appeal.

      References for Points in Headnotes

       56 Am Jur 2d, Motions, Rules, and Orders § 7.

       42 Am Jur 2d, Injunctions §§ 346, 352-354.

      Affirmed.
    1. Motions — Parties — Standing.
    A motion made by two parties is properly before the court where one of those parties has standing to bring the motion, even though the other party does not have such standing.
    2. Injunction — Judge’s Discretion — Appeal and Error — Abuse of Discretion.
    The granting or dissolving of an interlocutory injunction is discretionary with a trial court, and on appeal a trial court’s decision to grant or dissolve such an injunction will not be interfered with absent a palpable abuse of that discretion.
    3. Motions — Appeal and Error — Injunction — Summary Judgment.
    A defendant’s motion for dissolution of a preliminary injunction should not be treated as a motion for summary judgment and reviewed accordingly on appeal even where dissolution of the injunction effectively disposes of one count of the plaintiffs complaint.

      Schlussel, Lifton, Simon, Rands, Kaufman, Lesinski & Jackier (by T. John Lesinski and James C. Foresman), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Walter V. Kron and William J. Perrone, Assistants Attorney General, for the Michigan Department of Public Health and Maurice S. Reizen.

      Miller, Canñeld, Paddock & Stone fry Gilbert E. Gove and Larry J. Saylor), for the City of Pontiac and the City of Pontiac Hospital Building Authority.
    Before: N. J. Kaufman, P.J., and D. C. Riley and J. X. Theiler, JJ.

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

   Per Curiam.

Plaintiff appeals as of right an August 25, 1978, circuit court order dissolving a preliminary injunction.

On February 1, 1978, the trial court issued an ex parte temporary restraining order enjoining the Michigan Department of Public Health (hereinafter Department) from granting any application for a certificate of need for acute care hospital beds to be located in Service Area 76, and an order to show cause why a preliminary injunction pendente lite should not issue.

On March 22, 1978, the trial court entered an order which, among other things, granted the City of Pontiac and the City of Pontiac Hospital Building Authority (hereinafter Pontiac) leave to intervene as defendants, granted plaintiff a preliminary injunction enjoining the Department from issuing a certificate of need for acute care hospital beds to Pontiac during the pendency of this lawsuit, and dismissed without prejudice Counts II-V of the complaint on the ground that plaintiff had failed to exhaust its administrative remedies as to the claims set forth therein.

On April 26, 1978, Pontiac filed a motion to dissolve the preliminary injunction alleging that its continuance would result in irreparable harm to Pontiac and the public, and more specifically that if the Department was not permitted to issue a certificate of need allowing Pontiac to proceed expeditiously with its plan to renovate Pontiac General Hospital, the hospital would be forced to close. On May 17, 1978, the trial court denied the motion "for the reason that no material change in circumstances has been demonstrated to have occurred justifying dissolution of the regularly entered Preliminary Injunction of March 22, 1978 as of this time.” (Emphasis added.) Pontiac appealed but this Court, in an order dated June 5, 1978, docket no. 78-1843, and the Supreme Court denied leave, 403 Mich 825 (1978).

On August 4, 1978, Pontiac and the Department jointly filed a motion for accelerated judgment as to plaintiffs claim for injunctive relief and an alternative motion to dissolve the preliminary injunction. The motion was supported by several affidavits. On August 25, 1978, the date of the hearing, the trial court denied the motion for accelerated judgment, but granted the motion to dissolve the preliminary injunction because "there now is presented irreparable and immediate harm to the defendant, Pontiac General Hospital”. (Emphasis added.) The order granting defendants’ motion to dissolve the preliminary injunction explained that the motion was granted because "immediate and irreparable harm shall be suffered by the defendant [Pontiac]” if the motion were to be denied. Plaintiff now appeals from the order dissolving the preliminary injunction.

Plaintiff initially claims that since the preliminary injunction did not restrain Pontiac from doing any act, Pontiac did not have standing to move for the dissolution of the preliminary injunction. While the issue is intriguing from an academic viewpoint, we do not have to address it. The Department, which plainly had standing to move for dissolution of the preliminary injunction, joined Pontiac in making the motion. Therefore, even if Pontiac did not have standing, the motion was properly before the trial court.

Plaintiff also argues that the trial court abused its discretion in dissolving the preliminary injunction. We disagree.

As Furniture Manufacturers Ass’n of Grand Rapids v Grand Rapids Guild of Exhibitors, 268 Mich 685, 689; 256 NW 595 (1934), noted:

" 'Granting or dissolving an interlocutory injunction is discretionary with the trial court; and this court will rarely interfere with the exercise of such discretionary power and then only upon a showing of a palpable abuse thereof.’ Flemming v Heffner & Flemming, 263 Mich 561 [248 NW 900 (1933)], citing Freeman v Mitchell, 198 Mich 207 [164 NW 445 (1917)].
"Mr. Justice Stone defined 'abuse of discretion’ in Cooper v Carr, 161 Mich 405, 412 [126 NW 468 (1910)], saying:
" 'To warrant such interference (on our part), the abuse ought to be so plain that upon consideration of the facts upon which the trial judge acted, an unprejudiced person can say there was no justification or excuse for the ruling made.’ ” (Emphasis added.)

A review of the affidavits filed by defendants in support of their second motion to dissolve the preliminary injunction establishes that the preliminary injunction was causing Pontiac myriad and serious financing, construction and licensure problems which jeopardized the continuing provision of medical services to the community. Plaintiff filed no counter affidavits with the trial court.

Further, the ultimate relief plaintiff seeks is the issuance of its own certificate of need permitting construction of its proposed hospital. The issuance of a certificate of need to Pontiac would not necessarily preclude the Department from granting plaintiff’s application for a certificate of need. And, if plaintiff is unsatisfied with the Department’s treatment of its application, it can pursue administrative and judicial review concerning that treatment. Thus, the continuance of the preliminary injunction was not absolutely necessary to protect plaintiff from irreparable harm.

Finally, plaintiff argues that dissolution of the preliminary injunction amounted to summary judgment and should be reviewed accordingly. We disagree. Although the dissolution of the preliminary injunction and the subsequent issuance of a certificate of need to Pontiac effectively disposed of Count I of plaintiff’s complaint, we have found no authority holding that defendants’ motion to dissolve the injunction should be treated as a motion for summary judgment. Additionally, plaintiff still can seek its own certificate of need if it so desires.

For the foregoing reasons, we cannot say that the trial judge abused his discretion in dissolving the preliminary injunction.

Affirmed. No costs, a public question being involved.

       The parties are concerned here with MCL 331.451 et seq.; MSA 14.1179(51) et seq., which requires a certificate of need for the construction, conversion, addition to or modernization of health facilities. In evaluating an application for a certificate of need, the appropriate commission takes into account, among other things, the region’s pattern and level of utilization of existing health services, possible economies and improvement in existing facilities, the availability of manpower, and financing. MCL 331.455a; MSA 14.1179(55a).

       Note, however, the provisions of GCR 1963, 201.2, which provides in part "Every action shall be prosecuted in the name of the real party in interest”.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    NOEL v OAKLAND COUNTY CLERK
    Docket No. 78-4777.
    Submitted June 18, 1979, at Detroit.
    Decided September 4, 1979.
    Prior to the 1978 general election, John Noel, the Mayor of the City of South Lyon, and Claude Danielson, Reginald Sweet and Louise Anderson, Councilpersons of the City of South Lyon, brought an action in Oakland Circuit Court requesting an injunction prohibiting the Oakland County Clerk from placing on the ballot the proposition whether the plaintiffs should be recalled. James Osborne, Rita Herala and John M. Barabas, also known as the South Lyon Citizens Committee to recall Noel, Sweet, Danielson and Anderson, intervened as defendants. The circuit court, Steven N. Andrews, J., ruled that the petitions for recall, which alleged "administrative incompetence” on the part of the plaintiffs, satisfied the directives of the recall statute and the applicable provision of the Michigan Constitution and denied injunctive relief. The plaintiffs appeal by leave granted. Held:

    The reasons set forth in a recall petition need not constitute allegations of nonfeasance, misfeasance or malfeasance in office; however, the reasons set forth in a recall petition must be stated with sufficient specificity and clarity to give the official, whose recall is sought, some minimal due process guarantees. Allegations of "administrative incompetence” do little to fulfill the criteria of the recall statute. The trial court erred in its determination that the petitions satisfied the guidelines of the recall statute. However, noncompliance with the recall statute does not render the recall election invalid. Once an election has been held, the provisions of the recall statute are no longer mandatory but are deemed directory and defects in the clarity of the reasons for recall, by themselves, are insufficient to negate the results.
    The trial court’s determination that the petitions satisfied the guidelines of the recall statute is reversed, but the results of the recall election are upheld.

      References for Points in Headnotes

       63 Am Jur 2d, Public Officers and Employees § 245.

       25 Am Jur 2d, Elections § 5.

       63 Am Jur 2d, Public Officers and Employees §§ 178,181, 238, 239, 241.

      1. Elections — Recall of Officials — Recall Petition — Stated Purpose of Recall — Sufficiency of Reasons — Clarity — Due Process.
    The reasons for seeking the recall of an elected official, as set forth in a recall petition, need not constitute allegations of nonfeasance, misfeasance or malfeasance in office, the sufficiency of the reasons in a recall petition being an electoral rather than a justiciable question; however, the reasons, whatever they may be, must be stated with adequate clarity, on the one hand to prevent abuse of the elective franchise by ensuring deliberate and informed action by those called upon to sign the recall petition, while at the same time affording the official sought to be recalled at least some minimal due process guarantees.
    2. Elections — Enforcement of Election Laws — Validity of Election.
    Provisions of an election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after an election such provisions are directory only, in support of the result, unless they are of such a character that their violation would effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless they affect an essential element of the election, or it is expressly declared by statute that compliance with them is essential to the validity of the election.
    3. Elections — Recall of Officials — Removal of Officials.
    A recall, as distinguished from the power of removal, is a fundamental right reserved to the people by the Constitution, being premised upon the theory that the right of the people to revoke an official commission which they have granted is coextensive with their original power to confer it.
    4. Elections — Recall of Officials — Statutes — Prior to Election — Stated Purpose of Recall — Clarity.
    The provisions of the recall statute are mandatory in nature prior to an election and an aggrieved official may, during that period, petition for prompt, judicial determination of the clarity, but not the sufficiency, of the stated purpose behind the recall; once an election is held, however, the provisions of the recall statute are deemed directory and defects in the clarity of the reasons for recall, by themselves, are insufficient to negate the results (MCL 168.952; MSA 6.1952).

      Faintuck, Schwedel, Wolfram, McDonald & Zipser, for plaintiffs.

      Fabrizio, Miller & Graham, P.C. (by Douglas L. Webster), for intervening defendants.
    Before: N. J. Kaufman, P.J., and D. C. Riley and J. X. Theiler, JJ.

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

   Per Curiam.

Plaintiffs appeal by leave a November 2, 1978, circuit court order denying their request for an injunction prohibiting the Oakland County clerk from placing the question of whether they should be recalled from office on the November 7, 1978, general election ballot.

The petitions in the case at bar stated the reasons for recall as: Incompetence in administering his/her duties as an elected official and in a manner not conducive to the better interests of the residents of the City of South Lyon.

On October 24, 1978, plaintiffs filed suit, alleging, inter alia, that the petitions were legally insufficient as they merely stated general conclusions in contravention of MCL 168.952; MSA 6.1952, which provides that such petitions "shall state clearly the reason or reasons for the recall.” As a result, they contend, they were unable to effectively respond to the charges, and the electorate was uninformed as to the reasons for the proposed recall.

A show cause hearing was held on November 1, 1978. The following day the trial court ruled that the petitions satisfied the directive of the recall statute and Const 1963, art 2, § 8. By order entered November 3, 1978, this Court granted plaintiffs’ motion for immediate consideration, but denied leave to appeal without prejudice to plaintiffs’ right to renew their application subsequent to the election of November 7, 1978. By order entered November 22, 1978, this Court, among other things, granted plaintiffs’ application for leave to appeal and denied their motion to stay proceedings. From the lower court’s original denial of injunctive relief, plaintiffs now bring this appeal.

In pertinent part, Const 1908, art 3, § 8 provided:

"Laws shall be passed to preserve the purity of elections and guard against abuses of the elective franchise, and to provide for the recall of all elective officers.”

As noted, MCL 168.952 presently mandates that the reasons for recall must be clearly stated in the petition.

The statute received its first interpretation in Newberg v Donnelly, 235 Mich 531, 534-535; 209 NW 572 (1926). There the Court stated:

"It provides that the petition 'shall state clearly the reason or reasons’ for recall. This statement must be such as will furnish information to the electors on which they may form a judgment on some act or failure to act which, in the absence of a sufficient justification, would warrant the recall.”

People, ex rel Elliot v O’Hara, 246 Mich 312, 314-315; 224 NW 384 (1929), construing Newberg, said:

"Read in connection with the facts of the case, the ruling was that a petition is insufficient which merely charges an officer with doing what he has the legal right and duty to do, and which fails to set up facts, as distinguished from conclusions, showing misconduct. The statute obviously confines the reasons to conduct in relation to the office, as that is the declared character of the officer’s justification. The reasons, then, must state facts which, if true, would show nonfeasance, misfeasance, or malfeasance in office.
"The evident purpose of requiring a statement of reasons is to insure deliberate action by the electors and to discourage frequent, vexatious, or ambitious elections. The statute is to be construed in harmony with the reserved power of the people to recall their officers rather than with the requirements of charges to remove an officer.
"It is enough that they [reasons for recall] be set up with sufficient particularity to enable the officer and electors to identify the transaction and know the charges made in connection therewith.”

Two later decisions, Amberg v Welsh, 325 Mich 285; 38 NW2d 304 (1949), and Eaton v Baker, 334 Mich 521; 55 NW2d 77 (1952), merely reiterated the principles set forth in Newberg and O’Hara.

A change in the law occurred, however, with the Supreme Court’s decision in Wallace v Tripp, 358 Mich 668, 680-681; 101 NW2d 312 (1960). Wallace overruled the previous cases to the extent they required that the reasons for recall constitute allegations of nonfeasance, misfeasance or malfeasance in office:

"The general rule appears to be that absent specific constitutional or statutory requirements, the sufficiency of reasons in a recall petition is for the determination of the electorate rather than the courts. State, ex rel. Topping, v. Houston, supra [94 Neb 445, 455, 456; 143 NW 796 (1913)]; Laam v. McLaren, 28 Cal App 632 (153 P 985); Conn v. City Council of Richmond, 17 Cal App 705 (121 P 714).
"See, also, 106 ALR 555, 564; 28 Am Jur. Initiative, Referendum and Recall, § 51 et seq.
"Michigan’s constitution and statute require a clear statement of reasons for recall based upon an act or acts in the course of conduct in office of the officer whose recall is sought. Beyond this, the Constitution reserves the power of recall to the people.
"The basic power is held by the people in both our nation and our State. Our State Constitution as presently drawn places much confidence in the proper functioning of an intelligent and informed electorate. The recall provision is illustrative of that confidence. We feel bound to uphold its provisions against the aberrátion contained in the Newberg Case and subsequently followed in the cases cited.”

This holding was subsequently incorporated into the 1963 Michigan Constitution:

"Laws shall be enacted to provide for the recall of all elective officers * * *. The sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question(Emphasis supplied.) Const 1963, art 2, § 8.

In the aftermath of Wallace, only one recent decision has dealt with the matter here in issue. In Woods v Clerk of Saginaw County, 80 Mich App 596, 598-599; 264 NW2d 74 (1978), the challenged petitions stated:

"(1) That Mr. Woods misled the voters in his campaign for Supervisor by failing to disclose his plan for changing the Township Manager form of government without study and without a vote of the electorate; and/ or
"(2) That the township residents should have been allowed an opportunity to vote on such an essential matter as changing the existing form of Township government and significantly increasing the powers of the Supervisor.”

In upholding the lower court’s ruling that the charges suffered no deficiency, a panel of this Court reasoned as follows:

"The trial court found that the reasons were stated with sufficient clarity 'to enable the officer and electors to identify the transaction and know the charges made in connection therewith’, People, ex rel Elliot v O’Hara, 246 Mich 312; 224 NW 384 (1929). We agree.
"Plaintiffs’ argument on appeal is not that he doés not understand the charges against him; but that the charges are not grounds for recall. This is a challenge, not to the clarity, but to the sufficiency of the reasons for the recall, and is a matter not within the jurisdiction of this or any other court by the express terms of the constitutional provision quoted above.”

Thus, it appears from the foregoing cases that the reasons set forth in a recall petition need no longer constitute allegations of nonfeasance, misfeasance or malfeasance in office, but that the specificity requirements enunciated in Newberg and its progeny reinain extant. Indeed, in holding that the sufficiency of the reasons in a récall petition is an electoral rather than a justiciable question, Wallace, supra, at 678, 680, reaffirmed the necessity that the reasons, whatever they may be, must be stated with adequate clarity. We áre in accord, and view such a rule as necessary, oh ohe hand, to prevent abuse of the elective franchise by ensuring deliberate and inforinéd action by those called upon to sign the recall petition, see Wallace, supra, at 676-677, O’Hara, supra, at 315, while at the same time affording the official sought to be recalled at least some minimal due process guarantees. MCL 168.966; MSA 5.1966 directs that the recall ballot shall include a statement of 200 words or less setting forth the official’s justification for his conduct in office. A rule which dictates clarity in the reasons for recall gives the charged official sufficient notification of the actions he is called upon to defend and accords him information from which to frame a proper response in support of his performance.

Viewing the petitions in the present case, we are unable to conclude that "administrative incompetence” meets these requirements. Although we do not consider whether it qualifies as a sufficient justification for recall, Wallace, supra, it is equally clear that, under the principles discussed above, it does little to fulfill the criteria of the recall statute.

However, our holding that the lower court erred in its determination that the petitions satisfied the guidelines of MCL 168.952 only partially resolves the intant disputes, for plaintiffs allege that noncompliance with the statute renders the recall election invalid. We disagree.

"Ordinarily, provisions of an election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after an election such provisions are directory only, in support of the result, unless they are of such a character that their violation would effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless they affect an essential element of the election, or it is expressly declared by statute that compliance with them is essential to the validity of the election.” 29 CJS, Elections, § 67. (Footnotes omitted.)

See Richey v Monroe County Board of Education, 346 Mich 156, 167; 77 NW2d 361 (1956), Michigan Public Service Co v City of Cheboygan, 324 Mich 309, 340; 37 NW2d 116 (1949), City of Jackson v Comm’r of Revenue, 316 Mich 694, 716-717; 26 NW2d 569 (1947), Attorney General, ex rel Miller v Miller, 266 Mich 127, 133; 253 NW 241 (1934).

A recall, as distinguished from the power of removal, is a fundamental right reserved to the people by the Constitution, being premised upon the theory that the right of the people to revoke an official commission which they have granted is coextensive with their original power to confer it. O’Hara, supra, at 314. Given that the power of recall is so firmly rooted within the discretion of the electorate, we are disinclined, absent any impropriety in the conduct of the election itself, to extinguish an expression of that will through an executed vote of an official’s constituency. As was stated in O’Hara, supra, at 315, "[t]he statute [MCL 168.952; MSA 6.1952] is to be construed in harmony with the reserved power of the people to recall their officers”. In consequence, therefore, we conclude that prior to election, the provisions of the recall statute are mandatory in nature. An aggrieved official may, during that period, petition for prompt, judicial determination of the clarity, but not the sufficiency, of the stated purposes behind the recall. Once an election is held, however, they are deemed directory and defects in the clarity of the reasons for recall, by themselves, are insufficient to negate the results. Logically, the effect of any error has been substantially eradicated through the partisan political debate occurring prior to the electoral vote.

The lower court’s determination that the petitions satisfied the guidelines of the recall petition is reversed, however, the results of the recall election are upheld. No costs, a public question being involved.

       Plaintiffs John Noel and Louise Anderson were recalled from office during the election in question.

       Although the statute was amended in 1976, 1976 PA 66, § 1, earlier versions did not materially differ insofar as the language at issue is concerned.

       MCL 168.955; MSA 6.1955 requires that the petitions must be signed by registered and qualified voters equal to not less than 25 percent of the number of votes cast for governor at the last general election in the district of the officer sought to be removed.

       Proceedings for removal are court oriented, whereas those for recall are within the province of the electors. Amberg v Welsh, 325 Mich 285, 296; 38 NW2d 304 (1949).

       Const 1963, art 2, § 8.


text:
    STOPCZYNSKI v GOVERNOR
    Docket No. 45458.
    Submitted July 19, 1979, at Detroit.
    Decided September 4, 1979.
    Leave to appeal applied for.
    Plaintiffs, Thaddeus C. Stopczynski and others, brought an action in the Ingham Circuit Court against the Governor of Michigan, the Department of Human Services and its director to enjoin the state from funding nontherapeutic abortions. Medicaid is a state administered, state and federally funded assistance program designed to provide payment for medical services on behalf of poor people. The Department of Hitman Services has, since 1973 when the U.S. Supreme Court held a pregnant woman had a constitutional right to an abortion, therapeutic or otherwise, during the first two trimesters of pregnancy, authorized payment for nontherapeutic abortions, with the Federal government sharing the cost. In 1977 the U.S. Supreme Court held that states may constitutionally exclude nontherapeutic abortions from Medicaid coverage and Congress has precluded the use of Federal money for nontherapeutic abortions. In 1978 the Legislature passed a bill prohibiting the use of Medicaid funds for nontherapeutic abortions, but the Governor vetoed the bill and the Legislature was unable to override it. Then the Legislature attempted to stop state funding by passing legislation appropriating only one dollar for nontherapeutic abortions but the Governor exercised a line-item veto, and, again, the Legislature was unable to override. The Governor and defendant Director of the Department of Human Services continued to administer the Medicaid program to fund nontherapeutic abortions. Plaintiffs alleged that this is improper because the state statute only authorizes expenditures for medical services which are "required” for the treatment of individuals and nontherapeutic abortions are not "required” treatment. They further claimed that the Governor abused his line-item veto power, a negátive tool to eliminate funding, to effect the affirmative action of appropriating vast sums to a use the Legislature intended only to fund to the extent of one dollar. The trial court, Jack E. Warren, J., found that nontherapeutic abortions were not "required” treatment within the meaning of the statute and enjoined further funding for that purpose. Defendants appeal. Held:

      References for Points in Headnote
    2 Am Jur 2d, Administrative Law §§ 236, 619, 656.
    79 Am Jur 2d, Welfare Law §§ 38, 39.

      1. The Department of Human Services has interpreted "required” in the statute as a procedural check so that state funds will not be spent for medical services which are available under the program but are inappropriate or unnecessary to the successful health care of a particular recipient. The interpretation is fair and just, and there is no compelling reason to overturn it. Once having decided what medical and health services to authorize, the department is correct in financing the medical procedures needed by the recipient to achieve those health care goals. A nontherapeutic abortion is a procedure which legally may be considered necessary to achieve the medical and health service of preventing the birth of an unwanted child, which service the department can lawfully choose to provide.
    2. The Governor did not achieve affirmative action by his line-item veto. He merely maintained the status quo. Since the department was funding nontherapeutic abortions prior to the appropriations bill, it may continue to do so.
    Reversed and injunction set aside.
    1. Administrative Law — Paupers — Medicaid — Required Treatment — Statutes.
    The interpretation by the Department of Human Services that the statute authorizing medical services under the Medicaid program to be rendered only after certification by a licensed physician that a service is "required for the treatment of an individual” is a procedural check so that state funds will not be spent on medical services which are available but inappropriate or unnecessary to the successful health care of a particular recipient is a fair and just interpretation and there is no compelling reason for the Court of Appeals to overturn it; once having decided what medical and health services to authorize, the department is correct in financing the medical procedures which are needed by the recipient to achieve those health care goals (MCL 400.108; MSA 16.490[18]).
    2. Abortion — Nontherapeutic Abortion — Medicaid.
    Nontherapeutic abortion is a procedure which legally may be considered necessary to achieve the medical and health service of preventing the birth of unwanted children, which the Department of Human Services may lawfully choose to provide under the Medicaid program.
    3. Abortion — Nontherapeutic Abortion — Appropriations — Line-Item Veto.
    The Governor’s line-item veto of an appropriation to the Department of Human Services of one dollar for nontherapeutic abortions had the effect of maintaining the status quo, and, since the department was funding nontherapeutic abortions prior to the appropriations bill, it may continue to do so.

      Joseph P. Zanglin, Paul E. Hamilton and Robert K. Costello, for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Janis Meija and William K Basinger, Assistants Attorney General, for defendants.
    Before: R. B. Burns, P.J., and Beasley and D. C. Riley, JJ.
   Per Curiam.

This action is a contest between the Legislature and the Governor. Initially, the Legislature passed SB 829, which would have prohibited the use of Medicaid funds for nontherapeutic abortions. The Governor vetoed the legislation. Unable to override the veto, the Legislature attempted to restrict state funding of nontherapeutic abortions through an appropriation bill. The Governor vetoed the portions of this appropriations bill dealing with nontherapeutic abortions. When the Legislature was also unable to override this veto, plaintiffs started suit, and the trial court, holding that the Governor’s veto was ineffective, enjoined defendants from funding nontherapeutic abortions. We reverse.

In 1966, with the enactment of 1966 PA 321, Michigan became a participant in the medical assistance program for the medically indigent pursuant to Title XIX of the Federal Social Security Act, as amended, 42 USC 1396 et seq.; MCL 400.105 et seq.; MSA 16.490(15) et seq. Neither statute contains an express provision dealing with assistance for abortions, whether elective or therapeutic, under this program. At the time of the enactment of the Medicaid program the performing or procuring of all elective and of some therapeutic abortions was a felony in this state. MCL 750.14, 750.15, 750.322 and 750.323; MSA 28.204, 28.205, 28.554 and 28.555, and MCL 338.53; MSA 14.533.

In 1973, the United States Supreme Court, in Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973), and Doe v Bolton, 410 US 179; 93 S Ct 739; 35 L Ed 2d 201 (1973), held that a pregnant woman has a constitutional right to an abortion, elective or therapeutic, during the first two trimesters of pregnancy, as an aspect of "liberty” under the Due Process Clause of the Fourteenth Amendment. Following those decisions, the Department of Human Services, which administers the Medicaid program in Michigan, began to authorize payment for nontherapeutic abortions, and the Federal government, pursuant to Title XIX of the Social Security Act, shared the costs.

In 1977, the United States Supreme Court interpreted Title XIX as constitutionally permitting a state to exclude nontherapeutic abortions from Medicaid coverage. Beal v Doe, 432 US 438; 97 S Ct 2366; 53 L Ed 2d 464 (1977), Maher v Roe, 432 US 464; 97 S Ct 2376; 53 L Ed 2d 484 (1977). Congress, by statute, expressly precluded the use of Federal Medicaid funds for nontherapeutic abortions during the fiscal year 1977. Departments of Labor and Health, Education, and Welfare appropriation act, 1977, PL 94-439, § 209, 90 Stat 1434. That limitation has persisted. PL 95-205, § 101, 91 Stat 1460.

In 1978, the Michigan Legislature passed SB 829, which would have prohibited the use of Medicaid funds for nontherapeutie abortions. On December 27, 1978, the Governor vetoed the bill, informing the Legislature of his reasons for doing So. The Legislature was unable to override the veto.

Finding direct assault on state-funded abortions unavailing, the Legislature attempted an indirect approach by passing HB 6049, án appropriations bill for the fiscal year ending September 30, 1979, in Which the following iiné item appropriations appear:

"MEDICAL SERVICES
"Hospital services and therapy, Hot nontherapeutie abortions including $306,446,500
"Physician services, not including nontherapeutie abortions 144,023,600
"Pharmaceutical, not including nontherapeutie abortions 69,809,700
"Nontherapeutie abortions 1”

Pursuant to the power granted him by Const 1963, art 5, § 19, the Governor vetoed these line-item appropriations, reiterating in his message to the Legislature his continuing opposition. In making these line-item vetoes, however, the Governor left unchanged the subtotaled appropriation for medical services. Thus modified, HB 6049, which was a blanket appropriations bill, became 1978 PA 401 when the Legislature was unable to override the gubernatorial veto. All four lines under the heading "Medical Services” which had read as indicated above were omitted.

Subsequently, the Legislature passed HB 6650, a supplemental appropriations bill for the first three months of the fiscal year 1978-1979 for the Medicaid program. The bill provided in part:

"MEDICAL SERVICES
"Hospital services and therapy $81,208,300
"Physician services 38,166,300
"Pharmaceutical services 18,500,000
"Nontherapeutic abortions 1”

The Governor vetoed the line-item appropriation of $1 for nontherapeutic abortions. Once again, the Legislature was unable to muster the necessary two-thirds majority to override the veto. Thus modified, HB 6650 became 1978 PA 417. A further supplemental appropriations bill for the remaining nine months of fiscal year 1978-1979, HB 6674, identical to HB 6650 except as to amounts, similarly had its $1 appropriation for nontherapeutic abortions line-item vetoed by the Governor, which veto the Legislature was unable to override. The bill became 1978 PA 561.

Following these vetoes, the Governor, acting in concert with the defendant Director of the Department of Human Services, has administered the Medicaid program so as to continue providing payments thereunder for medical indigents for all lawful abortions, both therapeutic and elective. Plaintiffs, including certain members of the Legislature, instituted this taxpayer’s suit in Ingham County Circuit Court, challenging the authority of the Governor and of the Director of the Department of Human Services to spend Medicaid funds for nontherapeutic abortions.

The trial judge, citing § 108 of the act, which states:

"Medical services shall be rendered upon certification by the attending licensed physician * * * that a service is required for the treatment of an individual. The services of a medical institution shall be rendered only after referral by a licensed physician * * * and certification by him that the services of the medical institution are required for the medical treatment of the individual * * MCL 400.108; MSA 16.490(18). (Emphasis added.)

concluded that nontherapeutic abortions could not be funded under the program because they were not "required” within the meaning of the act. The trial court also considered the validity of the Governor’s actions and found:

"that it is lawful and proper for a state to elect not to fund nontherapeutic abortions for the medically indigent, that the proper authority or body to make the determination of whether public funds will be used to fund nontherapeutic abortions is the legislative body; that the Legislature did enact legislation limiting the use of public funds to 'required’ medical services; * * * and that the Governor exceeded his authority in the instant controversy.”

The trial judge enjoined the Department of Social Services from expending funds for nontherapeutic abortions.

We address first the issue of whether state funding of nontherapeutic abortions is prohibited by MCL 400.108; MSA 16.490(18).

In People v Bricker, 389 Mich 524, 528; 208 NW2d 172 (1973), the Court stated:

"It is often said that in construing a statute a court seeks to determine the intent of the Legislature. Frequently there is truthfully no intent because the question concerns a situation not in contemplation when the Legislature acted.”

. In the present case, truthfully, the instant controversy could, not have been contemplated by the Législature when the act was first passed because the performance of nontherapeutic abortions was a felony at that time.

Under the medical assistance program, the Department of Human Services is delegated the authority to provide certain hospital, physician, and pharmaceutical care, and "other medical and health services as authorized by the state department”. MCL 400.109(a), (b), (d) and (e); MSA 16.490(19)(a), (b), (d) and (e). These medical services are rendered upon certification by an attending licensed physician that they áre "required for the treatment of an individual” recipient. MCL 400.108; MSA 16.490(18).

Plaintiffs argue and the lower court held, without comment, that "required” means medically necessary and that nontherapeutic abortions cannot come within that term because nontherapeutic by definition means not medically necessary. Defendants maintain that the term "required” has been interpreted by the department as being a procedural check so that state funds will not be spent for medical services which are available finder the program but are inappropriate or unnecessary to the successful health care of a particular recipient. Defendants argue that deference must be given to the agency’s interpretation.

This Court finds that there is no compelling reason to overturn the agency’s interpretation of the statutory language. In fact, that interpretation appears fair and just. Board of Education of Oakland Schools v Superintendent of Public Instruction, 401 Mich 37, 41; 257 NW2d 73 (1977). Once having decided what medical and health services to authorize, the department is correct in financing the medical procedures which are needed by a recipient to achieve those health cure goals. Nontherapeutic abortion is a procedure which legally may be considered necessary to achieve the medical and health service of preventing the birth of unwanted children, which service the department can lawfully choose to provide. The Court is mindful that it is not called upon to judge whether a nontherapeutic abortion is morally justifiable but rather the Court must make its ruling with the understanding that nontherapeutic abortions are legal.

Having found that the lower court incorrectly concluded that nontherapeutic abortions could not be funded under the medical assistance program, this Court must now consider whether the funding of nontherapeutic abortions is nonetheless prohibited by 1978 PA 417.

1978 PA 417 contains the following language:

"Sec. 1. (1) There is appropriated to the department of social services from the funds designated ih this act for the first 3 months of fiscal year 1978-79, ending December 31, 1978, the following amounts:
"Medical Services
"Hospital services and therapy $81,208,300
"Physician services 38,166,300
"Pharmaceutical services 18,500,000”

The next line item (referred to hereinafter as "line item four”) which was included in HB 6650 and which provided $1 for nontherapeutic abortions was not enacted as part of 1978 PA 417 after the Governor’s veto of that line item.

The Governor’s power to veto line items of an appropriations bill is contained in Article 5, Section 19 of the Michigan Constitution of 1963, which provides:

"The governor may disapprove any distinct item or items appropriating moneys in any appropriation bill. The part or parts approved shall become law, and the item or items disapproved shall be void unless re-passed according to the method prescribed for the passage of other bills over the executive veto.”

Plaintiffs assert that this power was abused by the Governor when he attempted to use his veto, a negative tool, to achieve an affirmative action. Plaintiffs maintain that a line veto may only be used to eliminate funding and that as used by the Governor the veto was an improper attempt to appropriate vast funds to an item which the Legislature intended to fund only to the extent of one dollar. Plaintiffs maintain in the alternative, that if the veto was valid it eliminated the one dollar appropriated for nontherapeutic abortions and as there was no other money appropriated for that purpose none could be spent. Plaintiffs’ argument rests on an interpretation of the bill by which line item four must be held to be excluded from the broader general categories of the prior three line items on the ground that the Legislature’s intention as expressed in this bill was to underfund nontherapeutic abortions.

On the other hand, defendants maintain that the legislative intent of line item four of this bill was not to limit spending for nontherapeutic abortions to one dollar but to symbolize the Legislature’s discontent with the Governor’s stand by the addition of the token amount. Defendants claim that the Legislature must have intended to allow funding for nontherapeutic abortions because it needed an appropriations bill to obtain Federal funds and it knew that no appropriations bill would be signed by the Governor unless nontherapeutic abortions were funded. In light of the Legislature’s inability to muster a two-thirds overriding vote, the Legislature knew that it had to present to the Governor a bill adequately funding nontherapeutic abortions.

This Court believes that the Governor was authorized under Article 5, Section 19, to veto line item four. Because the veto makes the line item void, the line item has no effect upon the status quo. Board of Education of Oakland Schools v Superintendent of Public Instruction, 392 Mich 613; 221 NW2d 345 (1974). Thus, the Governor did not achieve an affirmative action but rather, by his veto, maintained the status quo. As the Department of Human Services was funding nontherapeutic abortions prior to this bill, and since the vetoed line has no effect, funding of nontherapeutic abortions can continue.

The trial court is reversed and the injunction set aside.

No costs, a public question.

       "Notwithstanding the provisions of § 109, a clinical elective, or nontherapeutic abortion shall not be a service provided to recipients of medical assistance under this act.”

       By stipulation of the parties, all arguments regarding 1978 PA 417 apply with equal force to 1978 PA 561.


author: M. J. Kelly, J.

text:
    JOHNSON v HARPER-GRACE HOSPITAL
    Docket No. 77-2307.
    Submitted October 3, 1978, at Detroit.
    Decided September 5, 1979.
    Plaintiff, Sarah Johnson, suffered an injury to her armpit while at home. An abcess developed which caused her such pain that she sought medical treatment in the out-patient department of her employer, defendant Harper-Grace Hospital, during a work break. She there received an injection of antibiotics which, while curing the Underarm infection, resulted ih a new abcess developing at the injection site. This new abcess ultimately necessitated removal of a pus sac, leaving a permanent indentation in the right buttock which plaintiff alleged to have resulted in a permanent injury to her. Plaintiff filed a claim for worker’s compensation benefits alleging that the injury from the injection was work-related. Plaintiff eventually agreed to redeem the worker’s compensation claim for $8,500. Plaintiff thereafter filed suit against defendant hospital and the unknown nurse who administered the injection alleging malpractice arising out of the injection incident. Defendant hospital moved for summary judgment on the ground that the worker’s compensation redemption barred plaintiff’s malpractice claim. The Wayne Circuit Court, John R. Kirwan, J., granted defendant’s motion for summary judgment. Plaintiff appeals. Held:

    1. Estoppel arises where a party, by representations, admissions or silence, intentionally or negligently induces another party to believe facts, and the party justifiably relies and acts on this belief and will be prejudiced if thfe first party is permitted to deny the existence of the facts.
    2. Plaintiff, by redeeming her worker’s Compensation claim against employer hospital upon her allegation that the injury from the injection arose out of and in the course of her employment, is estopped from asserting contrary facts in the malpractice action against the hospital and her fellow employee. The redemption order serves as a final adjudication of the rights of the parties with respect to that injury and thus bars recovery in her malpractice suit.

      References for Points in Headnotes

       28 Am Jur 2d, Estoppel and Waiver § 1.

       81 Am Jur 2d, Workmen’s Compensation §§ 50, 51.

      Affirmed.
    1. Estoppel — Definitions — Words and Phrases.
    Estoppel arises where a party, by representations, admissions or silence, intentionally or negligently induces another party to believe facts, and the other party justifiably relies and acts on this belief and will be prejudiced if the first party is permitted to deny the existence of the facts.
    2. Estoppel — Workmen’s Compensation — Employment Relationship — Tort Claim — Exclusive Remedy.
    A hospital employee who suffers an injury arising out of an injection administered by a fellow employee and who redeems a worker’s compensation claim against the employer-hospital on the assertion that the injury arose out of and in the course of her employment is estopped from pursuing a malpractice claim against the hospital and the fellow employee, since permitting a subsequent tort claim upon a disavowal of the employment relationship would undermine the exclusive remedy provision of the Worker’s Disability Compensation Act.

      Eugene Terry, for plaintiff.

      Garan, Lucow, Miller, Lehman, Seward & Cooper, P.C., for defendant.
    Before: Bronson, P.J., and M. J. Kelly and D. C. Riley, JJ.
   M. J. Kelly, J.

Plaintiff appeals from an order of the Wayne County Circuit Court which granted defendants’ motion for summary judgment.

In December, 1974, plaintiff suffered injury to her left armpit while at home. Subsequently, an abcess developed which caused such pain as to compel her to seek medical treatment at Harper-Grace Hospital on December 9, 1974. At the time, plaintiff was an employee of the hospital. During a work break, she went to the out-patient department where she was examined and had prescribed and administered an injection of ampicillin mixed with penicillin. Although the injection cured the underarm infection, a new abcess developed at the site of the injection, which ultimately necessitated surgical removal of a pus sac, leaving a permanent indentation in the right buttock. Plaintiff alleges that she has suffered permanent injury as a result.

On July 17, 1975, plaintiff filed a petition for a hearing with the Bureau of Workmen’s Compensation, alleging a personal injury arising out of her employment. Thereafter, with the agreement of her counsel and counsel for defendant hospital, and with the concurrence of the referee, plaintiff’s claim was redeemed for $8,500. Neither the parties nor the director of the bureau requested a review of the redemption order, and it became a final order 15 days after approval, pursuant to MCL 418.837(2); MSA 17.237(837X2).

On December 7, 1976, plaintiff filed the instant complaint in circuit court. She seeks damages for what, in essence, is a tort action sounding in malpractice arising out of the same ampicillin/ penicillin injection incident. Defendant, in reply, moved for accelerated judgment or, in the alternative, for summary judgment, raising the worker’s compensation redemption as a bar to this lawsuit. After oral argument, the trial court granted defendant summary judgment, ruling that, because of the worker’s compensation redemption, plaintiff’s civil suit should now be barred.

A single issue is presented in this appeal. Does plaintiff’s acceptance of a redemption from her hospital-employer bar her subsequent malpractice action against the hospital arising from the same injury which was a subject of the redemption? The circuit court held that it did. In making the case for reversal, plaintiff argues that the board lacked jurisdiction to enter the redemption because the injection was not administered in the context of the employment relationship, since plaintiffs original injury occurred at home. Further, it is asserted that, in any event, the question of the board’s jurisdiction was never actually litigated, and, thus, the redemption should not preclude plaintiff from prosecuting the present tort suit.

Because we hold that plaintiffs invocation of the board’s jurisdiction and her acceptance of the redemption order precludes her tort suit on the grounds of equitable estoppel, we need not address the initial claim that her original injury, which occurred at home, removes the subsequent injection injury by a coemployee from the employment relationship.

An estoppel arises where a party, by representations, admissions or silence, intentionally or negligently induces another party to believe facts, and the other party justifiably relies and acts on this belief and will be prejudiced if the first party is permitted to deny the existence of the facts. Conel Development, Inc v River Rouge Savings Bank, 84 Mich App 415, 422-423; 269 NW2d 621 (1978).

In the present case, the board’s jurisdiction was invoked by the allegations contained in plaintiffs original claim for workmen’s compensation benefits. Plaintiffs petition for hearing alleged injury in the course of employment, stating that plaintiff "sustained multiple trauma and/or was exposed to hard, arduous, strenuous, difficult manual labor which required much walking, standing, kneeling and bending”. Her testimony at the hearing before the referee was consistent with her position that the injection injury was work-related. Furthermore, plaintiff also submitted a medical report which stated:

"I would say that her job which requires standing, climbing stairs, bending, and lifting is definitely a contributing factor to pain and disability as it relates to her right buttock infection. As a matter of fact, I would say that it aggravated her symptoms.” (Emphasis added.)

Finally, the agreement to redeem liability and the redemption order also recite that plaintiffs injury was one "arising out of and in the course of her employment”. Therefore, as far as the pleadings and recorded proceedings were concerned, plaintiffs claim was addressed to the proper forum.

The record of the compensation proceedings indicates that the issue as to whether or not plaintiffs injury was compensable was contested by defendant and its compensation carrier. As noted above, plaintiff submitted a medical report indicating that the injection injury was aggravated by her employment. Defendant similarly submitted a medical report indicating that the injection injury was not related to her employment at Harper Hospital. Finally, in the transcript of the redemption hearing, plaintiffs counsel emphasized the magnitude of the issue, stating:

"Mr. Terry: I have recommended this settlement. I feel it is a proper matter for redemption because there’s a question of liability under the statute.” (Emphasis added.)

Thus, it is apparent that there was legitimate dispute as to whether plaintiffs buttock injury was compensable and that the parties settled their differences by way of the redemption order of December 17, 1976.

In the present case, we find the application of an estoppel to be an appropriate vehicle to prevent plaintiff from repudiating her original representations which induced defendant to redeem its liability. Majewski v Martin Brothers Barrel & Box Co, 230 Mich 548; 203 NW 102 (1925), Hassberger v General Builders’ Supply Co, 213 Mich 489; 182 NW 27 (1921). Logic also dictates this result, for tp adopt plaintiffs argument would encourage fraud. We recognize that a redemption is a deliberate compromise between possibilities. Johnson v Nationwide Life Ins Co, 7 Mich App 441; 151 NW2d 840 (1967). It would be inequitable to permit plaintiff the best of both worlds: allowing her to obtain the security of a fixed settlement while permitting her to pursue a suit for higher stakes in the circuit court. To hold that a plaintiff can allege an employer-employee relationship in a forum in which the claim proceeds to final disposition and then can disavow that relationship in a subsequent tort suit arising out of the same injury would undermine the exclusive remedy provision of the Workers’ Disability Compensation Act.

We hold that plaintiffs acceptance of disability benefits by way of settlement and redemption where she claimed that her injury was employment-related bars her subsequent tort suit where she seeks to relitigate the issue of the bureau’s jurisdiction by alleging that her injury was not employment-related. The redemption order serves as a final adjudication of the rights of the parties in relation to this particular injury and estops plaintiffs civil suit.

Affirmed.


author: Cynar, J.

text:
    PEOPLE v BRYAN
    Docket No. 77-3006.
    Submitted April 11, 1979, at Lansing.
    Decided September 5, 1979.
    Leave to appeal applied for.
    Thomas J. Bryan was convicted of assault with intent to commit murder and of assault with intent to rob while armed, Bay Circuit Court, Leon R. Dardas, J. Defendant appeals, alleging several errors. Held:

    1. The prosecutor’s handling of statements made by the defendant was improper. The prosecutor told defense counsel that the defendant had made no statement, thereby forestalling the holding of a Walker hearing until the middle of the trial, he withheld the fact of a subsequent statement, and he made use of the defendant’s statements after stating that no such statements would be used. However, the use of the statements does not require reversal because the defendant was not prejudiced by such use. The evidence against the defendant was overwhelming and the statements in question were insignificant in leading to his conviction.
    2. The misspelling of an endorsed witness’s name and the misstatement of the witness’s address did not result in prejudice to the defendant.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 896.

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

       5 Am Jur 2d, Appeal and Error § 803.

       29 Am Jur 2d, Evidence § 585.

       41 Am Jur 2d, Indictments and Informations § 128.

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

       4 Am Jur 2d, Appeal and Error § 541.
    Propriety and effect of prosecuting attorney’s argument to jury indicating his belief or knowledge as to guilt of accused. 50 ALR2d 766.

       81 Am Jur 2d, Witnesses § 481.

       81 Am Jur 2d, Witnesses § 560.
    Preventing or limiting cross-examination of prosecution’s witness as to his motive for testifying. 62 ALR2d 610.

       75 Am Jur 2d, Trial § 61.

       6 Am Jur 2d, Assault and Battery § 65.

       75 Am Jur 2d, Trial § 876.
    Effect of failure or refusal of court, in robbery prosecution, to instruct on assault and battery. 58 ALR2d 808.

      3. Failure of the prosecutor to reveal a witness’s change of testimony before trial did not result in prejudice to the defendant. The change in story did not relate to the defendant’s role in the crime.
    4. Any possible prejudice resulting from the prosecutor’s reference to the victim as the "body” was eliminated by an instruction to the jury.
    5. No prosecutorial error occurred where a witness answered a question in a nonresponsive manner, relating matters which otherwise might be deemed inadmissible.
    6. A portion of the prosecutor’s closing argument which raised issues broader than the guilt or innocence of the defendant was improper. However, the argument was terminated at the outset by a defense objection, and no curative instruction was requested. The defendant suffered no prejudice from the improper argument.
    7. A prosecutor is permitted to impeach a res gestae witness who is not an accomplice.
    8. The defendant’s counsel was properly permitted to bring out the possibility that a prosecution witness was testifying favorably to the prosecution in exchange for leniency by questioning the witness as to the existence of charges pending against the witness.
    9. The trial judge was incorrect in asserting that his order sequestering the witnesses could not also provide that the witnesses not discuss their testimony. However, the defendant has shown no prejudice resulting from this error.
    10. Preliminary examination testimony of the complainant, who had died before the time of trial, was properly admitted into evidence.
    11. The trial court’s instructions on intoxication, when read as a whole, were proper.
    12. The convictions for assault with intent to commit murder and for assault with intent to rob while armed are not for the "same offense” and do not violate the prohibition against double jeopardy.
    13. The trial court improperly refused the defendant’s request for an instruction to the jury on attempted armed robbery, which is a necessarily lesser-included offense of assault with intent to rob while armed. Therefore, the defendant’s conviction for assault with intent to rob while armed should be vacated and remanded for entry of a judgment of conviction for attempted armed robbery, or, if the prosecutor so desires, for retrial on the greater offense.
    Conviction for assault with intent to commit murder is affirmed. Conviction for assault with intent to rob while armed is vacated and the case remanded with instructions.
    1. Criminal Law — Prosecutor’s Misconduct — Prejudice — Appeal and Error.
    There must be a showing of prejudice to a defendant in order for a prosecutor’s misconduct to be such that a reversal of the defendant’s conviction is required.
    2. Appeal and Error — Criminal Law — Prejudice — Error — Harmless Error.
    The Court of Appeals must make two inquiries when determining whether a defendant has been prejudiced by an error: first, whether the error is so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless; second, if not so basic, whether the error was harmless beyond a reasonable doubt.
    3. Criminal Law — Error — Harmless Error.
    Error in a criminal trial is not harmless if, in a trial free of the error complained of, it is reasonably possible that even one juror might have voted to acquit the defendant.
    4. Criminal Law — Evidence — Dependant’s Statement — Voluntariness — Impeachment.
    There is no requirement that a Walker hearing be held to determine the voluntariness of a defendant’s statement where the statement is used only for impeachment of the defendant upon cross-examination.
    5. Witnesses — Criminal Law — Res Gestae Witnesses — Endorsed Witnesses.
    The unintentional misspelling of a res gestae witness’s name and the misstatement of that witness’s address on an information did not prejudice a defendant where defense counsel was given an opportunity to interview the witness before he testified at trial.
    6. Criminal Law — Evidence — Witnesses — Change in Testimony — Prejudice.
    A defendant was not prejudiced by the prosecutor’s failure to reveal to the defense a change in the testimony of a prosecution witness prior to trial where no requests for the new testimony were made and where the change in story did not relate to the defendant’s role in the offense charged and is not exculpatory.
    7. Criminal Law — Arguments by Prosecutor — Prejudice.
    A closing argument by a prosecutor which raises issues broader than the guilt or innocence of the accused is viewed with disfavor; however, such an argument was not so prejudicial as to require reversal of a defendant’s conviction where the argument was terminated at the outset by a defense objection which was sustained and where a curative instruction was not requested.
    8. Witnesses — Criminal Law — Res Gestae Witnesses — Impeachment — Accomplices.
    A prosecutor is permitted, on direct examination, to impeach a res gestae witness who was not an accomplice of the defendant who is on trial.
    9. Witnesses — Criminal Law — Prosecution Witnesses — Charges Pending Against Witness.
    A defendant’s counsel is entitled to question a prosecution witness as to the existence of charges pending against that witness in order to bring out the possibility that the witness is testifying favorably to the prosecution in return for leniency with regard to those charges; however, the number of pending charges is irrelevant to the inquiry as to the possibility of leniency.
    10. Witnesses — Sequestration of Witnesses — Discussion of Testimony.
    A trial court’s order sequestering witnesses may also provide that the sequestered witnesses not discuss their testimony.
    11. Criminal Law .— Double Jeopardy — Assault With Intent to Murder — Assault With Intent to Rob.
    Two crimes do not constitute the same offense for purposes of double jeopardy analysis if each requires proof of an additional fact which the other does not; convictions for assault with intent to commit murder and assault with intent to rob while armed, arising from the same criminal transaction, do not violate the prohibition against double jeopardy.
    12. Robbery — Assault — Lesser-Included Offenses — Instructions to Jury.
    Attempted armed robbery is a necessarily lesser-included offense of assault with intent to rob while armed; therefore, a trial court’s refusal to instruct a jury on attempted armed robbery in a trial for assault with intent to rob while armed, where the defendant requested such an instruction, requires that the defendant’s conviction of the charged offense be vacated and a conviction of the lesser offense be entered.

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

      Lynn Chard, Assistant State Appellate Defender, for defendant on appeal.
    Before: V. J. Brennan, P.J., and Bronson and Cynar, JJ.
   Cynar, J.

Following a jury trial in early May of 1977, defendant was convicted of assault with intent to commit murder, MCL 750.83; MSA 28.278, and assault with intent to rob while armed, MCL 750.89; MSA 28.284. On June 13, 1977, he was sentenced to concurrent terms of 25 to 40 years imprisonment on each count. Defendant now appeals as of right.

The charges against defendant arose out of an incident in Bay City on the evening of April 7, 1976, in which the complainant, Albin Trojanowicz, was struck on the head with a hammer and stabbed with a knife. Defendant and two others, Brian Miller and Rick Miller, were arrested and bound over on assault charges as a result of this incident. Defendant was tried separately from the other defendants.

At the trial Donald Elder testified that he was drinking with defendant and the Millers on the afternoon of the offense. At one point defendant suggested that he and Elder "go and raise some hell and get in trouble”, but Elder declined this offer.

Diane Blair testified that she was riding in a car with defendant and the Millers on the evening of the offense. Defendant was in possession of a knife at that time. When the occupants of the car noticed a man who appeared drunk walking down the street, either defendant or Brian Miller suggested that they "roll” him. Defendant and Brian Miller left the car, the latter carrying a hammer, and Rick Miller drove to his mother’s house. The witness further testified that shortly thereafter defendant and Brian Miller appeared, both with bloody hands. At that time defendant said that they had killed a man and Brian Miller admitted striking someone with a hammer. Defendant and Brian Miller then washed and concealed the hammer. llene Miller, the mother of the two codefendants Miller, testified that she noted blood on defendant’s hand and that she helped defendant dispose of a knife and a hat he had been wearing.

The complainant, Albin Trojanowicz, died prior to trial from causes not related to the assault and his preliminary examination testimony was read into the record at trial. He testified that he was walking home that evening when he was attacked by what he thought were two men. He stated that he was hit on the head and struck in the stomach. He testified that he remembered blood splashing and then recalled nothing until he awoke in the hospital. Medical testimony established that the complainant had been struck on the head and stabbed on the side. He had bled profusely and would have died had he not been treated.

Unknown to the occupants of the car that evening, an undercover operation in an unrelated matter, consisting of several officers, had spotted the vehicle. They saw two men leave the vehicle but did not witness the assault. When a passerby discovered the complainant and contacted the police, a bulletin was put out on the car. Twenty-five minutes later the vehicle was stopped. At the time defendant was its only occupant. The arresting officers noticed blood near the driver’s side of the car and on defendant’s shoes. Evidence at trial showed that this blood type matched the blood type of the victim. Both the knife and the hammer were retrieved and admitted as exhibits at trial.

Defendant’s defense was that of intoxication. He claimed he had consumed 25 to 30 beers and a pint of schnapps on the day in question and that he did not intend to commit the crimes. He did admit striking the victim in the chest, allegedly in response to something he had said, but denied possessing a knife at that time. The arresting officers testified that defendant did not appear intoxicated to them.

Defendant also introduced evidence to explain the blood found in the car and on his shoes. Defendant’s brother, Mark Bryan, testified that on April 4, 1976, he had been in a fight and knocked unconscious. When he awoke defendant was holding his head. Medical records indicated that the blood found on the tennis shoes, Levi’s, and on the automobile at the time of defendant’s arrest matched the blood type of defendant’s brother.

I. Use of defendant’s statements.

Defendant initially alleges that the prosecution denied defendant a fair trial by its use of statements made by defendant shortly after arrest.

At trial Sergeant Edward LaPlant, one of the arresting officers, testified that he asked defendant what had happened shortly after his arrest. Defense counsel objected before the officer could state defendant’s response to the question. He requested a mistrial, claiming that the prosecutor had told him that defendant had made no statements. In response the prosecutor agreed that he had said there were no statements by defendant. However, he added that he had never said there were no "remarks” made by defendant at the time of his arrest.

After considerable argument by counsel, defendant’s motion for a mistrial was denied. The trial judge did order a Walker hearing to determine the voluntariness of the alleged statements. In the course of this hearing Sergeant LaPlant testified that defendant was advised of his Miranda rights at the time of his arrest. He testified that immediately thereafter defendant denied having done anything wrong. He further stated that later on he talked to defendant at the police station. However, at that point the witness was cut off by the prosecutor who stated:

"I have to hold it here for a second. All I asked him was what did he say at the scene when he was arrested, and so that’s where we are at this point. Anyhow, there was subsequent questioning at the station, but we hadn’t gotten to that bridge yet.”

Subsequently, defense counsel waived the production of another officer who was present at the scene of the arrest. The trial judge ruled that the statements made by defendant were voluntary. The prosecutor then indicated that he intended to present additional evidence of statements made to another officer, Sergeant Lochinski. This led to an exchange between counsel and the trial judge as to the need for an additional Walker hearing. At one point defense counsel accused the prosecution of trickery and asserted that all statements should be disclosed at one time. In response the following exchange occurred:

"Prosecutor: In fact, your Honor, I think that Mr. Caprathe is making a mountain out of a mole hill, I’m sufficiently satisfied with the evidence at this time. At this time, I’ll abjure the use of any statements. I believe they’re admissible. It’s not worth the hassle.
"The Court: I’m concerned with the statement you made prior to this. You said in view of the fact they do not want them presented you will not present the exculpatory statements.
"Prosecutor: Yes, I’ll leave the whole area alone. No statements from the defendant.
"The Court: All right. That eliminates all problems, doesn’t it?”

Later in the trial, defendant chose to testify in his own behalf. In the course of cross-examination the following exchange occurred:

"Q What did you first tell the police, by the way, when they arrested you?
"A I told them I didn’t know nothing about it.
"Q Told them you didn’t know nothing about it, right?
"A Yes.
"Q And later on did you change your story a little bit?
"A That’s just it. I can’t remember what happened at the police station.
"Q Did you tell the police the story that you had given your car to Brian Miller and that he had dropped you off at the house, and that Brian and Ricky and Diane had driven somewhere? Did you tell them that story?”
At this point defense counsel objected on the ground that no Walker hearing had been held to determine the voluntariness of this latter statement. The objection was overruled and the cross-examination continued as follows:
"Q Did you make that statement to the police?
"A Not that I know of.
"Q But did you give them that story?
"A Not that I know of.
"Q Did you tell them Brian Miller had come back to the house with Ricky and Diane and stopped the car there and told you, 'Hey, things look bad. You better get out of here.’
"A Would you repeat that?
"Q Did you tell the police that they had dropped you off at the house, they had come back a short time later, Brian borrowed your car from you, said, 'I need to use it for a while.’ He came back a short while later and said, 'Hey, things look really bad. You better get out of here.’
"A No, I didn’t.
"Q You didn’t make that statement to them, or you don’t remember?
"A I don’t remember it, no.”

It is clear from this record that the prosecutor handled this case in a less than exemplary manner. By telling defense counsel that defendant had made no "statement” at the time of his arrest, he forestalled the holding of a Walker hearing until the middle of trial, an obviously inconvenient time for such a hearing. Moreover, his explanation for his prior comment, differentiating "statements” from "remarks”, is not convincing.

We further find fault with his tactic of withholding at the ordered Walker hearing the fact of defendant’s subsequent statement. It should have been obvious to him at this point that the trial judge would order a Walker hearing for any statement made by defendant. Nor was it proper for the prosecutor to make use of defendant’s statements after stating that no such statements would be used. We find unbelievable the prosecutor’s claim that this statement was meant only to apply to his case-in-chief. Under different circumstances, such a tactic could surely constitute reversible error.

However, in order for such conduct to warrant reversal, there must be a showing of prejudice. People v Robinson, 386 Mich 551, 562-563; 194 NW2d 709 (1972). In determining whether prejudice has occurred we must first determine whether the error complained of was "so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless”. People v Robinson, supra, 563, People v Christensen, 64 Mich App 23, 32-33; 235 NW2d 50 (1975). Although we are strongly critical of the prosecutor’s conduct with regard to defendant’s statements we do not believe it requires reversal.

Having so concluded we must then determine if in the present case the error was harmless beyond a reasonable doubt. People v Robinson, supra, 563, People v Christensen, supra, 33. In applying this test, we must determine if, in a trial free of error, it is reasonably possible that even one juror might have voted to acquit defendant. People v Wilkins, 82 Mich App 260, 272; 266 NW2d 781 (1978). Such an inquiry necessarily requires an examination of all the evidence presented at trial.

We conclude that the prosecutor’s conduct in this matter did not serve to prejudice defendant. The evidence against the defendant was overwhelming and the statements in question were insignificant in leading to his conviction.

Nor did any prejudice occur from the brief attempted use of the subsequent statement. This statement was exculpatory in nature. Its impact appears inconsequential. Moreover, because the statement was being used for impeachment purposes, there was no requirement that a Walker hearing be held to determine its voluntariness. People v Jones, 76 Mich App 601, 607; 257 NW2d 185 (1977).

II. Prosecutorial misconduct.

Defendant next argues that defendant was denied a fair trial as a result of various tactics of the prosecutor. Specifically he contends: (1) that the prosecutor failed to reveal the correct name and address of an endorsed witness until just before trial; (2) that the prosecutor failed to reveal the change of testimony of a prosecution witness; (3) that the prosecutor twice referred to the victim as "the body”; (4) that the prosecutor questioned a witness on matters previously ruled inadmissible; and (5) that the prosecutor injected issues broader than the guilt or innocence of the accused into his closing argument.

We conclude that defendant suffered no prejudice as a result of the misspelling of Donald Elder’s name and misstatement of his address on the information. The error did not appear to be intentional and defense counsel was given an opportunity to interview the witness before he testified at trial. People v Harrison, 44 Mich App 578, 586; 205 NW2d 900 (1973).

Similarly we find no error resulting from the prosecutor’s failure to reveal Diane Blair’s change of testimony. At the preliminary examination her testimony was damaging to defendant, while tending to exculpate Brian Miller. However, two days before trial she told the prosecutor that she had lied at the examination as a result of pressure from the Miller family. Unlike the situation in People v Thornton, 80 Mich App 746; 265 NW2d 35 (1978), no requests for the new testimony were made. Further, the change in story did not relate to defendant’s role in the incident and can hardly be considered exculpatory. Under these circumstances there was no duty placed on the prosecutor to reveal the change of story prior to trial. United States v Agurs, 427 US 97; 96 S Ct 2392; 49 L Ed 2d 342 (1976).

The prosecutor’s reference to the victim as the "body”, although unnecessary, does not rise to the level of reversible error. The jury was reminded that the complainant did not die as a result of the attack. Thus, any possible prejudice resulting from this reference was eliminated.

Defendant’s claim that the prosecutor persisted in questioning a witness as to matters deemed inadmissible is not borne out by the record. Initially, in the course of examining Diane Blair, the prosecutor attempted to ask her about defendant’s attitude after the crime. Defense counsel’s objection to this question was sustained. Subsequently, the prosecutor attempted to ask the witness to describe defendant’s conduct, a question that would not require a conclusory answer. However, the witness answered in a nonresponsive manner, describing defendant’s attitude rather than his conduct. Since the witness, not the prosecutor, was to blame, this issue is without merit.

We also conclude that the prosecution’s closing argument, although improper, does not require a reversal of the convictions. During cross-examination of an expert witness offered by the defense, the prosecutor elicited testimony that 90 per cent of county jail inmates had a significant substance abuse problem. During closing argument, the prosecutor addressed defendant’s intoxication defense as follows:

"That’s why the law in the state is that intoxication is no excuse for crime. The only concern that intoxication has in this case is was the defendant so intoxicated that he did not make the decision to attack Mr. Trojanowicz, that he did not make the decision to knife Mr. Trojanowicz. If you find that, ladies and gentlemen, you’re ignoring all the evidence in this case and you are saying basically, that intoxication does excuse criminal conduct, and that the other ten percent who aren’t drinking will now undoubtedly go out and develop the habit.”

We agree with defendant’s contention that this type of argument, raising issues broader than the guilt or innocence of the accused, has been condemned on numerous occasions by this Court. See for example People v Gloria Williams, 65 Mich App 753; 238 NW2d 186 (1975), People v Meir, 67 Mich App 534; 241 NW2d 280 (1976), and People v Biondo, 76 Mich App 155; 256 NW2d 60 (1977). However, in the present case the argument was terminated at the outset by a defense objection which was sustained. Although no curative instruction was given, none was requested. Under these circumstances, we do not believe the prosecution’s argument was so prejudicial as to require a reversal of the convictions.

III. Errors by the trial judge.

Defendant also alleges that the trial judge made several errors in the course of the trial. He claims the trial judge erred: (1) by permitting the prosecutor to impeach Diane Blair on direct examination; (2) by sustaining the prosecutor’s objection to questions regarding pending charges against Donald Elder; (3) by failing to instruct sequestered witnesses not to discuss their testimony; (4) by permitting the prosecutor to read into the record allegedly inadmissible matter in the complainant’s preliminary examination testimony; and (5) by improperly instructing the jury as to the legal effect of intoxication upon the element of specific intent.

The prosecutor’s impeachment of Diane Blair was necessitated by her change in testimony from that given at the preliminary exam. We find no error in this impeachment. Since this witness was in the car prior to the assault and at the Miller house when defendant returned, she was clearly a res gestae witness. People v Charles Williams #2, 45 Mich App 630, 635; 207 NW2d 180 (1973). However there was no evidence linking her to the crime, mere presence being insufficient to support a conviction. People v Burrel, 253 Mich 321, 323; 235 NW 170 (1931). The case law is clear in stating that the prosecutor is permitted to impeach a res gestae witness who is not an accomplice. People v White, 401 Mich 482, 508-509; 257 NW2d 912 (1977).

We agree with defendant’s contention that defense counsel was entitled to question Elder, a prosecution witness, as to the existence of charges then pending against him. Defense counsel was entitled to bring out the possibility that the witness was testifying favorably to the prosecution in return for leniency with regard to these charges. People v Harrington, 76 Mich App 118, 121; 256 NW2d 52 (1977). However, in the present case the trial judge properly limited the inquiry in this area by sustaining the prosecutor’s objection to a question regarding the number of pending charges. The number of pending charges is clearly irrelevant when inquiring as to the possibility that promises of leniency had been made.

Nor does the trial judge’s failure to instruct sequestered witnesses not to discuss their testimony require reversal. Although the trial judge was incorrect in asserting that his sequestration order could not so provide, People v Stanley, 71 Mich App 56, 62; 246 NW2d 418 (1976), defendant is unable to show any prejudice resulting from the absence of such an instruction.

We find no error in the admission of the complainant’s preliminary examination testimony. Although the prosecutor did use leading questions at the examination, no objection was made at that time. Therefore, defendant waived consideration of this issue.

We also conclude that the intoxication instructions, when read in their entirety, People v Parsons, 59 Mich App 79, 83; 228 NW2d 852 (1975), properly apprised the jury that voluntary intoxication could act to negate the specific intent required for convictions of the charged offenses. It is true that the initial instruction and a subsequent instruction on this point were confusing and contradictory. However, this confusion was relieved by the final supplemental instruction on the subject, where the judge stated:

"If I gave you the impression that intoxication is not a defense to a specific intent crime, that is incorrect. Voluntary intoxication may be a defense to a specific intent crime. The questions you should ask yourself in this area are: Does the evidence presented satisfy me or create a reasonable doubt that the defendant was intoxicated? If so, was the defendant so intoxicated that he did not mean to do the act that he did, or was unaware of the probable consequences of his acts?
"The questions you must ask yourself then are these: First, did the defendant do the act? Did the defendant mean to participate in the infliction of wounds on Mr. Trojanowicz in order to kill him, or knowing that the infliction of these wounds would create a substantial probability of his death?”

Thus, defendant’s claim is without merit.

IV. Other issues.

Defendant raises two additional issues for our consideration.

He first claims that the two convictions violate the prohibition against double jeopardy in the instant case.

We disagree. The prohibition against double jeopardy does protect against multiple punishment as well as multiple prosecution for the same offense. However, the present situation does not involve two convictions for the "same offense”. For purposes of double jeopardy analysis two crimes do not constitute the same offense if "each provision requires proof of an additional fact which the other does not”. Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932). It is clear in the present case that the two offenses involved herein each require a species of intent that the other does not. Since the two offenses require different specific intents, convictions for both do not violate the prohibition against double jeopardy. People v Compian, 38 Mich App 289, 301; 196 NW2d 353 (1972).

Defendant’s final contention is that the trial judge erred in refusing his request for an instruction on attempted armed robbery.

Since our Supreme Court’s opinion in People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), trial courts have been required, upon request, to instruct the jury on all necessarily lesser-included offenses. An offense is necessarily included within another when it is "impossible to commit the greater without first having committed the lesser”. People v Ora Jones, supra, 387.

In the present case defendant was charged with the offense of assault with intent to rob while armed. MCL 750.89; MSA 28.284. The elements of this crime consist of: (1) an assault with force and violence; (2) an intent to rob and steal; and (3) defendant being armed. See People v Sanford, 402 Mich 460, 474 fn 1; 265 NW2d 1 (1978). Attempted armed robbery, on the other hand, requires: (1) an attempted felonious taking of property from the person of another or in his presence; (2) by force and violence or by assault or by putting in fear; and (3) defendant being armed. People v Sanford, supra, 474 fn 1.

An examination of the above elements leads us to conclude that attempted armed robbery is a necessarily lesser-included offense of assault with intent to rob while armed. In every case where an assault with intent to rob while armed takes place, an attempted armed robbery will also take place. Both require that defendant be armed. Further, the assault necessary for the former offense will always provide the force and violence and overt act necessary for the attempted armed robbery.

In support of our conclusion, we note a plurality opinion of our Supreme Court has reached the sanie conclusion on this issue. People v Patskan, 387 Mich 701; 199 NW2d 458 (1972). Further, a panel of this Court, using similar analysis, has concluded that attempted rape is a necessarily lesser-included offense of assault with intent to rape. People v Herbert Ross, 73 Mich App 588; 252 NW2d 526 (1977).

In light of the above analysis, we are required to vacate defendant’s conviction for assault with intent to rob while armed and to remand for entry of a judgment of conviction for the offense of attempted armed robbery. The prosecutor may, at his option, retry defendant on the greater offense. People v Jenkins, 395 Mich 440, 443; 236 NW2d 503 (1975). Defendant’s conviction for assault with intent to commit murder is affirmed.

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

        Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).