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

text:
    PEASE v ST. CLAIR SHORES CITY COUNSEL
    Docket No. 77-3978.
    Submitted April 20, 1978, at Detroit.
    Decided August 22, 1978.
    Joyce Pease and Nashville North, Ltd., entered into an agreement to purchase a-business operating under a class "C” liquor license held by Margery Crain at 23405 Jefferson Avenue in St. Clair Shores. Plaintiffs appeared before the City Council of the City of St. Clair Shores on four occasions and submitted plans detailing their proposal to transfer the license from 23405 Jefferson to an existing commercial building at 31501 Harper, St. Clair Shores. Each time the council denied the request for approval of the transfer.
    Subsequently, Joyce Pease and Nashville North, Ltd., sought superintending control in the circuit court. Superintending control was granted ordering the defendant city council to approve the requested transfer, Macomb Circuit Court, Walter P. Cynar, J. The defendant appeals. Held:

    In the absence of evidence in the record which would explain and justify the council’s action, the Court of Appeals must concur with the trial court that the council acted arbitrarily in denying the application in this case.
    Affirmed.
    1. Licenses — Intoxicating Liquors — Liquor Licenses — Denial of License — Scope of Review — Appeal and Error.
    The scope of judicial review of a local legislative body’s disposition of requests for liquor licenses is extremely narrow and the local disposition will be overturned only upon a showing that it was arbitrary and capricious.
    2. Licenses — Intoxicating Liquors — Liquor Licenses — Reasons for Denying License.
    Some of the valid reasons for denying a liquor license to an applicant are: (1) the bad moral character of the applicant, (2) the applicant’s lack of sufficient assets for the successful operation of the proposed business, because such licensees often succumb to the temptation of violating the law to alleviate financial difficulties, (3) a zoning prohibition on the sale of liquor at the location of the proposed place of business, and (4) the unfitness of the particular building for the proposed business, as where the building fails to conform to applicable established health, safety or fire codes.

      References for Points in Headnotes
    [1] 45 Am Jur 2d, Intoxicating Liquors §§ 155, 159, 163.
    [2] 45 Am Jur 2d, Intoxicating Liquors §§ 161, 162.

      3. Licenses — Intoxicating Liquors — Liquor Licenses — Denial of License — Unusual Circumstance.
    The denial of a liquor license must be based upon some unusual circumstance or other criteria that would reasonably justify such a refusal where there are no questions as to the qualifications of the applicant, the fitness and safety of the particular building or the legality of maintaining a liquor business in the requested location.

      John G. Thompson, for plaintiffs.

      Killebrew & Fraser, for defendant.
    Before: D. F. Walsh, P. J., and D. E. Holbrook and R. M. Maher, JJ.
   D. F. Walsh, P. J.

Defendant appeals from the circuit court’s order of superintending control ordering it to approve a requested transfer of a class "C” liquor license to the plaintiffs.

In April, 1976, plaintiffs entered into an agreement to purchase a business operating under a class "C” liquor license held by Margery Crain at 23405 Jefferson Avenue. On four occasions plaintiffs appeared before defendant council and submitted plans detailing their proposal to transfer the license from 23405 Jefferson to an existing commercial building located at 31501 Harper, St. Clair Shores. Each time the council denied plaintiffs’ request for approval of the transfer.

Plaintiffs then instituted the present action. The circuit court remanded the matter to the council for an informal written statement indicating the reasons for the denial. After consideration of the reasons submitted, the trial court found the denial arbitrary and capricious and ordered the requested transfer. The only issue briefed and contested by the parties is whether the trial court erred in its decision. We limit ourselves to that issue.

The scope of judicial review of a local legislative body’s disposition of requests for liquor licenses is extremely narrow, Bundo v Walled Lake, 395 Mich 679; 238 NW2d 154 (1976), and the local disposition will be overturned only upon a showing that it was arbitrary and capricious. Bisco’s, Inc v Liquor Control Comm, 395 Mich 706; 238 NW2d 166 (1976).

Our review is hampered at the outset by the absence of any standards against which to measure the defendant’s decision. Although our Supreme Court has stated that the Legislature did not intend that the local communities have "unbridled and unrestricted control over liquor licenses”, Bundo, supra, at 700, our research has failed to uncover any Michigan cases indicating which factors may legitimately support the denial of an application for such a license. We must look, therefore, to decisions from other jurisdictions.

It has been established that a license may be denied because of the bad moral character of the applicant.

"One of the principal reasons underlying liquor license laws is to restrict liquor traffic to persons of good moral character who may be reasonably expected to keep their business free from greater vices, which have impelled restrictive legislation on the question.” Permenter v Younan, 159 Fla 226, 230; 31 So 2d 387 (1947), see Eddings v Davidson, 302 So 2d 155 (Fla App, 1974); 45 Am Jur 2d, Intoxicating Liquors, § 149, p 595.

A license may also be denied where the applicant does not have sufficient assets for the successful operation of the proposed business, because such licensees often succumb to the temptation of violating the law to alleviate financial difficulties. In the Matter of Samuel Tobkes v O’Connell, 272 App Div 240; 70 NYS2d 494 (1947).

The location of the proposed place of business will justify denial of a license where the area in question has been zoned as one within which intoxicating liquor may not be sold. See Churchill v Common Council of the City of Detroit, 153 Mich 93; 116 NW 558 (1908). Similarly, refusal may be warranted due to the unfitness of the particular building, Thielen v Kostelecky, 69 ND 410; 287 NW 513; 124 ALR 820 (1939), as where the building fails to conform to applicable established health, safety or fire codes. Furthermore, in a given case, peculiar circumstances of time and place may provide legitimate bases for refusal to issue a license. See Kirby v Alcoholic Beverage Control Appeal Board, 7 Cal 3d 433; 102 Cal Rptr 857; 498 P2d 1105 (1972) (aggravation of existing law enforcement problems due to youthful population and recent rioting).

However, where there are no questions as to the qualifications of the applicant, the fitness and safety of the particular building or the legality of maintaining a liquor business in the requested location, the denial of a liquor license must be based upon some unusual circumstance or other criteria that would reasonably justify such a refusal.

In the instant case the reasons given by the council for denying plaintiffs’ request are as follows:

"1. That the building was not originally designed to function as a restaurant and nightclub.
"2. That the parking for the cars, although technically in conformity with ordinance, has a vacant building situated in the middle of the parking lot which will remain vacant.
"3. That the building is in close proximity to a residential neighborhood and due to the nature of the entertainment to be provided would have an adverse effect on the peace, quiet and tranquility of the neighbors.
"4. That the Chief of Police and the City Manager have recommended against that use being established in that area because of the effect on the neighborhood.
"5. That the Council is concerned as to what use the building could be put in the event the proposed use would not be successful.
"6. That residents in the neighborhood objected to the use being established in their neighborhood.
"7. That where entertainment is provided, it has generated a heavy traffic and parking problem, causing a heavy surcharge of trafile on the immediate residential areas.
"8. That as a governmental body, the Council based on the substantial changes in the original concept as submitted by the Petitioner, has evidenced concern as to the ultimate use.
"9. That the Council acted on this matter, not as a transfer but in effect as a new license at a new location.”

The applicants’ personal qualifications and financial ability to undertake this venture were not given as reasons for denial of their request. The third, fourth and sixth reasons embody the objections of the council, the chief of police and city manager and certain residents as to the effect that the proposed business would have on the neighborhood. The most specific statement of that concern was that the business would have an "adverse effect on the peace, quiet and tranquility of the neighborhood”. The seventh reason raises traffic and parking as an objection.

Although we fully appreciate the concern of local residents for the potential disruption of their neighborhood, under the circumstances of this case we do not consider the general objections raised as valid reason for refusing plaintiffs’ request for transfer. Of the six persons originally signing the petition requesting that the council deny the license, three subsequently withdrew their objections. Moreover, plaintiffs produced a petition signed by 120 residents favoring granting the license. Finally, the area is apparently zoned so as to permit plaintiffs’ business at the proposed location, and the nature of the objections were such as to apply to any class "C” liquor establishment rather than to the plaintiffs’ business in particular.

In this same vein we note that the defendant concedes that the proposal conforms with the pertinent ordinance governing the required amount of parking space.

Thus, in the instant case we have a proposal in full conformity with all pertinent zoning and traffic ordinances, and no evidence whatever of any unusual circumstance that would justify imposing heavier requirements on the plaintiffs than upon other similarly situated businesses. We do not substitute our judgment for that of the council, but in the absence of evidence in the record which would explain and justify the council’s action we must concur with the trial court that the council acted arbitrarily in this case.

The trial court is affirmed.

       Each successive proposal was modified to obviate the council’s stated concerns regarding the transfer, most of which centered on the adequacy of available parking and the objections of certain local residents to the venture.

       In other instances in which this Court reviews a lower tribunal’s decision for abuse of discretion we refer to a body of existing law setting forth the standards against which the decision may be assessed. For example, decisions concerning the admission of evidence, the scope of cross-examination, the granting of a continuance, and a host of other matters are committed to the discretion of the lower tribunal. In such situations, the broadly stated rules governing those matters enable a reviewing court to render a principled determination as to whether discretion has been abused.
      In the Case at bar, however, we have been unable to find any broad principles to serve as the outer parameters limiting the council’s decision. Bereft of such guidance, review of that determination would amount to little more than deciding whether we agree with it. Conceptually such review could be criticized as permitting too wide a scope of review (if we simply disagree with the decision) or as providing no review at all (if we simply agree).

       An example of such "other criteria” is the list of priorities enacted by the City of Troy.. See Jones v City of Troy, 405 F Supp 464 (ED Mich, 1975). Such guidelines, enacted in advance of a given application, are desirable in that they offer some protection to the individual against arbitrary denials; they serve as a guiding principle to the local body in passing upon future applications; and they are of great assistance to a reviewing court in discerning the rationality of the body’s determination.
      We emphasize that we do not herein intend to limit the legitimate broad discretion of local bodies in granting or denying liquor license applications. We are merely attempting to render the exercise of that discretion reviewable in some coherent fashion.

       The propriety of the council’s consideration of plaintiffs’ request as an original application has not been challenged on appeal. Regardless of the correctness of that perspective, the scope of review remains the same, i.e., abuse of discretion. See Bisco’s, Inc v Liquor Control Comm, 395 Mich 706; 238 NW2d 166 (1976), Bundo v Walled Lake, 395 Mich 679; 238 NW2d 154 (1976).

       Like the trial court, we were unable to find any record evidence concerning the objections of those officials.

       In this context we think the following quotation appropriate:
      "The fact that a large number of the residents of the area protest the issuance of the permits is not in itself sufficient reason to deny the application of an otherwise qualified applicant. The question of whether the sale and purchase of alcohol should be permitted is a political one to be determined by the voters under the local option sections of the Liquor Control Act. * * * Furthermore, a city, by zoning ordinances, may restrict the sale of alcoholic beverages to certain areas within the city.” Texas Alcoholic Beverage Comm v Mikulenka, 510 SW2d 616, 619 (Tex Civ App, 1974). (Citations omitted.)

       We do not mean that an applicant’s compliance with pertinent ordinances precludes a local legislative body from considering factors within the ambit of such ordinances. However, there must be some circumstances warranting a departure from previously established legislative standards. The reasons need not be compelling but they certainly must be present.

       As to the reasons given by the council to support their denial of plaintiffs’ request for transfer, we make the following comments:
      The gist of the first reason is not clear, but we assume that it concerns the fitness of the building to house plaintiffs’ business. In view of the fact that plaintiffs obtained approval of the floor plan and site plan from the architect of the building, the city planning director and the city fire marshall, we find no support for the council’s objection. The second and fifth reasons appear to us to be unrelated to the fitness of the building or the location of the business. The eighth reason which expresses the council’s fears as to the possible ultimate use of the building because of "substantial changes” made by plaintiffs in the concept contained in their original application is also devoid of merit, since these "substantial changes” were made in response to the council’s original objections.


source: Caselaw Access Project

author: Beasley, J.

license: Public Domain

text:
    PEOPLE v MANGIAPANE
    Docket No. 77-4316.
    Submitted May 9, 1978, at Lansing.
    Decided August 22, 1978.
    Defendant Martin Mangiapane was charged with assault with intent to commit murder. After he was bound over, defendant moved for an order allowing psychiatric testimony concerning his ability to form the requisite specific intent. The Macomb Circuit Court, George R. Deneweth, J., denied defendant’s motion, holding that the codification of the insanity defense also codified the "diminished capacity” defense and the statutory requirements must be met to introduce such testimony. Defendant appeals by leave granted. Held:

    Evidence in a criminal trial of a defendant’s incapacity to form the requisite specific intent for commission of the crime charged is evidence of an insanity defense and, as such, the statutory notice and cooperation requirements must be complied with in order for the evidence to be properly admissible at trial.
    Affirmed.
    Criminal Law — Evidence—Capacity to Form Specific Intent — Insanity Defense — Statutes.
    Evidence in a criminal trial of a defendant’s incapacity to form the requisite specific intent for commission of the crime charged is evidence of an insanity defense and, as such, the statutory notice and cooperation requirements must be complied with in order for it to be properly admissible at trial (MCL 768.20a, 768.21, 768.21a; MSA 28.1043[1], 28.1044, 28.1044[1]).
    Reference for Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 31-33.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Joseph P. Ciaramitaro, Assistant Prosecuting Attorney, for the people.

      Berry, Hopson, Francis & Mack, for defendant.
    Before: Beasley, P. J., and Allen and H. E. Deming, JJ.

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

   Beasley, J.

Defendant was charged with assault with intent to commit murder in violation of MCL 750.83; MSA 28.278, after a woman was shot seven times with a gun.

After bindover, defendant moved for an order allowing psychiatric testimony on the issue of his capacity to form the requisite specific intent, although he filed no notice of nor did he intend to claim insanity. After careful consideration, the trial court denied defendant’s motion, holding that the 1975 amendments to the Code of Criminal Procedure codified the so-called "diminished capacity” tests and precluded any such claim except within the ambit of the statutory definition of insanity contained in the Mental Health Code.

The matter is before this court on leave granted.

Prior to enactment of the 1975 amendments, People v Lynch controlled this question. In Lynch, this Court held that any evidence relevant to the issue of intent was admissible even though it fell short of supporting a finding of not guilty by reason of insanity. Specifically, the Lynch Court said:

"The majority, and we think the sounder, view, however, permits such medical proof, sometimes called proof of diminished or partial responsibility, as bearing on intent generally or at least on those special states of mind where a specific intent is required or where the state of mind by definition determines the degree of the offense as here.”

The issue is, do Acts 179 and 180 of the Public Acts of 1975 modify this rule of People v Lynch so as to preclude psychiatric testimony relating to mental condition of the defendant at the time of the alleged offense except within the statutory, procedural framework for asserting the defense of insanity?

Relevant to this issue is the intention of the Legislature in enacting Acts 179 and 180 of the Public Acts of 1975. Since these acts comprise a package of bills which are quite comprehensive in scope, they are best viewed in their entirety. To that end, we set forth Acts 179 and 180 in full.

Giving consideration to the specifics, § 21a defines legal insanity as follows:

"(1) A person is legally insane if, as a result of mental illness as defined in section 400a of Act No. 258 of the Public Acts of 1974, being section 330.1400a of the Michigan Compiled Laws, or as a result of mental retardation as defined in section 500(g) of Act No. 258 of the Public Acts of 1974, being section 330.1500 of the Michigan Compiled Laws, that person lacks substantial capacity either to appreciate the wrongfulness of his conduct' or to conform his conduct to the requirements of law.”

"Mental illness” is defined in the 1974 Mental Health Code as follows:

"As used in this chapter, 'mental illness’ means a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.”

"Mentally retarded” is defined as follows:

" 'Mentally retarded’ means significantly subaverage general intellectual functioning which originates during the developmental period and is associated with impairment in adaptive behavior.”

The new § 21a codifies the definition of legal insanity for the first time. In the 1971 case of People v Martin, the Supreme Court compared the Michigan test for criminal insanity with the American Law Institute Model Penal test, the proposed Michigan Revised Criminal Code, the Durham "product” test and others. The Michigan rule as enunciated in People v Martin is

"The salient elements of the Michigan test are: 1) whether defendant knew what he was doing was right or wrong; and 2) if he did, did he have the power, the will power, to resist doing the wrongful act? The Michigan test encompasses not only a sudden overpowering, irresistible impulse but any situation or condition in which the power, 'the will power’ to resist, is insufficient to restrain commission of the wrongful act.” (Footnote omitted.)

Clearly, Michigan’s new codified definition is closest to the ALI model. The reference in the statutory definition to substantial capacity is in contrast to Michigan’s long-time Durfee test which was not cast in terms of capacity. While there are those who will say this difference is mere terminology and not one of substance, the new codified definition does suggest a legislative intention to cover and include the diminished capacity concept. While we are not prepared to say they are identical, certainly the categories of the mentally retarded, as defined in the statute, and of those with diminished capacity have striking similarities. It would appear that in many cases a person claiming diminished capacity would fall in the category of the mentally retarded.

Also bearing on the issue here is the new § 20a which, as indicated, was part of Act 180.

Prior to the 1975 amendment, a defendant desiring to establish the defense of insanity was required to file and give notice in writing to the prosecutor of intention to claim such defense at the time of arraignment or within 10 days thereafter, but not less than four days before trial.

The 1975 amendment requires the written notice of intention to assert the defense of insanity to be given not less than 30 days before the date set for trial or such other time as the court directs. The obvious reason for gearing the new extended 30-day period to the date of trial is to afford time for the required examination by the Center for Forensic Psychiatry (hereinafter referred to as CFP) under § 20a(2).

Requiring a defendant who claims the defense of insanity to submit to examination by the CFP is, of course, an entirely new concept. The subsections contained in § 20a(2) through 20a(8) are all new.

Section 20a(3) provides that if a defendant obtains an independent (additional) psychiatric evaluation by a clinician of his choice, he must give notice to the prosecutor so that the prosecutor can also obtain an independent psychiatric evaluation if he wishes.

Section 20a(4) requires the defendant to fully cooperate with the personnel of the CFP and with any independent examiners for either defense or prosecution. This section contains teeth in that if the trial judge finds failure to cooperate, he may bar the defendant from presenting testimony relating to insanity at trial.

Section 20a(5) provides that statements made by defendant to personnel of CFP or to any independent examiner are not admissible in evidence nor possessed of probative value on any issue other than mental illness or insanity at the time of the alleged offense.

Section 20a(6) requires the CFP or any other independent examiner to submit a written report to both defense counsel and the prosecutor containing 1) clinical findings, 2) facts upon which based, and 3) opinion on the issue of defendant’s insanity at the time the alleged offense was committed and whether defendant was mentally ill or mentally retarded at the time the alleged offense was committed.

Section 20a(7) requires the prosecutor to give written notice of rebuttal of defense of insanity with the names of rebuttal witnesses to defense counsel at least five days before trial.

The amended § 21 provides if defendant fails to file written notice of intention to claim defense of insanity in conformance with § 20a, the court shall exclude evidence offered by defendant for the purpose of establishing insanity. Prior to the amendment, exclusion of evidence because of failure to file notice of an insanity claim was within, the discretion of the trial judge; the language of the amendment makes exclusion mandatory. The provision is equally mandatory if the prosecutor fails to file the required notice of rebuttal of insanity defense.

In requiring the trial judge to instruct the jury regarding the statutory definitions of legal insanity, mental illness and mentally retarded before testimony is presented on that issue in all cases where a defendant asserts the defense of insanity, § 29a(l) is further indication of the Legislature’s determination to clarify for juries what the law is regarding the defense of insanity.

Of course, § 29a is entirely new. Section 29a(2) provides that where the evidence warrants, the trial judge should instruct the jury to consider separately the issue of the presence or absence of mental illness and of legal insanity. Requiring this instruction for separate consideration is an obvious effort to eliminate the necessary fuzziness that surrounds mixing the issues of whether a defendant committed an act with that of the defense of insanity.

Section 29a(2) also requires that where warranted by the evidence, the trial judge shall instruct as to the verdicts of guilty, guilty but mentally ill, not guilty by reason of insanity, and not guilty (and any lesser included offense).

Section 36 defines the newly created verdict of guilty but mentally ill. Where a defense of insanity is asserted and the trier of fact finds 1) defendant is guilty of an offense, 2) defendant was mentally ill at the time of commission of the offense, 3) defendant was not legally insane at the time of commission of the offense, a defendant. may be found guilty but mentally ill.

We interpret these statutes to manifest an intention to bring under one procedural blanket all defenses to criminal charges that rest upon legal insanity as defined in the statute.

The codified definition of legal insanity extends to persons lacking substantial capacity either to appreciate the wrongfulness of their conduct or to conform their conduct to the requirements of law, whether it results from mental illness or mental retardation.

We find that the defense known as diminished capacity comes within this codified definition of legal insanity. We further find that psychiatric testimony on the issue of defendant’s capacity to form the specific intent comes within the codified definition of legal insanity. By thus categorizing defendant’s defense we do not preclude the admission of evidence supporting defendant’s claim that, although not legally insane, he lacks mental capacity to entertain the specific intent that is a necessary element of assault with intent to commit murder. But, we hold that defendant must give the notice required by the statute of intention to assert that defense. By so doing, defendant will submit himself to examination and evaluation by the Center for Forensic Psychiatry and by an independent psychiatrist selected by the prosecutor, if the prosecutor wishes. In short, we hold that if defendant chooses to avail himself of the defense that he here asserts, namely, that he lacks mental capacity to entertain the specific intent required as an element of the crime with which he is charged whether it be called the defense of diminished capacity or not, then full compliance must be had with §§ 20a, 29a and 36.

Consequently, we find that the package of statutes discussed in this opinion operate to modify the holding in Lynch.

The Lynch rule placed judges and juries in an impossible position. Under that decision, the psychiatrist could testify that a defendant lacked mental capacity to entertain a particular criminal intent but could not testify that defendant did not know right from wrong or that defendant had an irresistible impulse to commit the criminal act or otherwise testify that defendant was insane, because such latter testimony was precluded where defendant did not claim and give notice of claim of insanity. Our interpretation of the new 1975 amendments seeks to restore credibility and clarity to the issues submitted to juries. In addition, bringing these issues under the new procedures gives the trial judge opportunity for more timely and more practical instructions to juries.

For the reasons indicated, we affirm the trial court’s denial of defendant’s petition.

Affirmed.

       47 Mich App 8, 20; 208 NW2d 656 (1971).

      [No. 179]
      AN ACT to amend sections 401, 402, 1028, 1050 and 1102 of Act No. 258 of the Public Acts of 1974, entitled "An act to modernize, add to, revise, consolidate, and codify the statutes relating to mental health; to delineate the powers and duties of the department of mental health; to establish county community mental health programs; to delineate state and county financial responsibility for public mental health services; to establish procedures for the civil admission and discharge of mentally ill persons to and from mental health facilities; to establish procedures for the civil admission and discharge of mentally retarded and other developmentally disabled persons to and from facilities; to establish guardianship arrangements for mentally retarded persons; to establish certain rights of persons who receive mental health services; to establish financial liability for the receipt of public mental health services; to establish certain miscellaneous provisions relating to mental health; to establish procedures pertaining to mentally ill and mentally retarded persons who are under criminal sentence, to persons who are mentally incompetent to stand trial, and to persons who have been found not guilty by reason of insanity; and to repeal certain acts and parts of acts,” being sections 330.1401, 330.1402, 330.2028, 330.2050 and 330.2102 of the Compiled Laws of 1970; and to add section 400a.

        The People of the State of Michigan enact:

      Sections amended and added; mental health code.
      Section 1. Sections 401, 402, 1028, 1050 and 1102 of Act No. 258 of the Public Acts of 1974, being sections 330.1401, 330.1402, 330.2028, 330.2050 and 330.2102 of the Compiled Laws of 1970, are amended and section 400a is added to read as follows:
      330.1400a "Mental illness” defined. [M.S.A. 14.800(400a)]
      Sec. 400a. As used in this chapter, "mental illness” means a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.
      330.1401 "Person requiring treatment” defined. [M.S.A. 14.800(401)]
      Sec. 401. As used in this chapter, "person requiring treatment” means (a), (b), or (c):
      (a) A person who is mentally ill, and who as a result of that mental illness can reasonably be expected within the near future to intentionally or unintentionally seriously physically injure himself or another person, and who has engaged in an act or acts or made significant threats that are substantially supportive of the expectation.
      (b) A person who is mentally ill, and who as a result of that mental illness is unable to attend to those of his basic physical needs such as food, clothing, or shelter that must be attended to in order for him to avoid serious harm in the near future, and who has demonstrated that inability by failing to attend to those basic physical needs.
      (c) A person who is mentally ill, whose judgment is so impaired that he is unable to understand his need for treatment and whose continued behavior as the result of this mental illness can reasonably be expected, on the basis of competent medical opinion, to result in significant physical harm to himself or others. This person shall be hospitalized only under the provisions of sections 434 through 438 of this act.
      330.1402 "Person requiring treatment”; exceptions. [M.S.A. 14.800(402)]
      Sec. 402. A person whose mental processes have simply been weakened or impaired by reason of advanced years, a person with epilepsy, or a person with alcoholism or other drug dependence shall not be deemed to be a person requiring treatment under this chapter unless the person also meets the criteria specified in section 401. However, the person may be hospitalized under the informal or formal voluntary hospitalization provisions of this chapter if he is deemed clinically suitable for hospitalization by the director.
      330.2028 Consultations; report; admissibility of evidence. [M.S.A. 14.800(1028)]
      Sec. 1028. (1) When the defendant is ordered to undergo an examination pursuant to section 1026, the center or other facility shall, for the purpose of gathering psychiatric and other information pertinent to the issue of the incompetence of the defendant to stand trial, examine the defendant and consult with defense counsel, and may consult with the prosecutor or other persons. Defense counsel shall make himself available for consultation with the center or other facility. The examination shall be performed, defense counsel consulted, and a written report submitted to the court, prosecuting attorney, and defense counsel within 60 days of the date of the order.
      (2) The report shall contain:
      (a) The clinical findings of the center or other facility.
      (b) The facts, in reasonable detail, upon which the findings are based, and upon request of the court, defense, or prosecution additional facts germane to the findings.

        (c) The opinion of the center or other facility on the issue of the incompetence of the defendant to stand trial.
      (d) If the opinion is that the defendant is incompetent to stand trial, the opinion of the center or other facility on the likelihood of the defendant attaining competence to stand trial, if provided a course of treatment, within the time limit established by section 1034.
      (3) The opinion concerning competency to stand trial derived from the examination may not be admitted as evidence for any purpose in the pending criminal proceedings, except on the issues to be determined in the hearings required or permitted by sections 1030 and 1040. The foregoing bar of testimony shall not be construed to prohibit the examining qualified clinician from presenting at other stages in the criminal proceedings opinions concerning criminal responsibility, disposition, or other issues if they were originally requested by the court and are available. Information gathered in the course of a prior examination that is of historical value to the examining qualified clinician may be utilized in the formulation of an opinion in any subsequent court ordered evaluation.
      330.2050 Person acquitted of criminal charge by reason of insanity; commitment to center for forensic psychiatry; record; examination and evaluation; report; opinion; certificates; petition; retention or discharge of person; applicability of release provisions; condition to being discharged or placed on leave; extension of leave. [M.S.A. 14.800(1050)]
      Sec. 1050. (1) The court shall immediately commit any person who is acquitted of a criminal charge by reason of insanity to the custody of the center for forensic psychiatry, for a period not to exceed 60 days. The court shall forward to the center a full report, in the form of a settled record, of the facts concerning the crime which the patient was found to have committed but of which he was acquitted by reason of insanity. The center shall thoroughly examine and evaluate the present mental condition of the person in order to reach an opinion on whether the person meets the criteria of a person requiring treatment or for judicial admission set forth in section 401 or 515.
      (2) Within the 60-day period the center shall file a report with the court, prosecuting attorney, and defense counsel. The report shall contain a summary of the crime which the patient committed but of which he was acquitted by reason of insanity and an opinion as to whether the person meets the criteria of a person requiring treatment or for judicial admission as defined by section 401 or 515, and the facts upon which the opinion is based. If the opinion stated is that the person is a person requiring treatment, the report shall be accompanied by certificates from 2 physicians, at least 1 of whom shall be a psychiatrist, which conform to the requirements of section 400(j).
      (3) After receipt of the report, the court may direct the prosecuting attorney to file a petition pursuant to section 434 or 516 for an order of hospitalization or an order of admission to a facility with the probate court of the person’s county of residence or of the county in which the criminal trial was held. Any certificates that accompanied the report of the center may be filed with the petition, and shall be sufficient to cause a hearing to be held pursuant to section 451 even if they were not executed within 72 hours of the filing of the petition. The report from the court containing the facts concerning the crime for which he was acquitted by reason of insanity shall be admissible in the hearings.
      (4) If the report states the opinion that the person meets the criteria of a person requiring treatment or for judicial admission, and if a petition is to be filed pursuant to subsection (3), the center may retain the person pending a hearing on the petition. If a petition is not to be filed, the prosecutor shall notify the center in writing. The center, upon receipt of the notification, shall cause the person to be discharged.
      (5) The release provisions of sections 476 to 479 of this act shall apply to a person found to have committed a crime by a court or jury, but who is acquitted by reason of insanity, except that a person shall not be discharged or placed on leave without first being evaluated and recommended for discharge or leave by the department’s program for forensic psychiatry, and authorized leave or absence from the hospital may be extended for a period of 5 years.
      330.2102 Effective date and applicability of particular sections and chapters. [M.S.A. 14.800(1102)]
      Sec. 1102. (1) This act shall take effect August 6, 1975, except that the provisions of chapters 4, 5, and 8 shall take effect November 6, 1974.
      (2) The provisions of sections 1020 to 1042 shall apply to persons against whom criminal proceedings are commenced on or after the effective date of those sections. Proceedings to determine the competency of persons against whom criminal proceedings are commenced before the effective date of those sections shall continue to be governed by the law in effect at the time those proceedings are commenced.
      (3) The provisions of section 1050 shall apply to persons who are found not guilty by reason of insanity on or after the effective date of that section.
      Enactment of HB 4363 as condition to effect of amendatory act.
      Section 2. This amendatory act shall not take effect unless House Bill No. 4363 of the 1975 Regular Session of the legislature is enacted into law.
      Recognition of prior effective dates.
      Section 3. The provisions of section 1102 regarding the effective date of particular sections and chapters of Act No. 258 of the Public Acts of 1974 recognize that that act was given immediate effect as contemplated by section 1102 as originally enacted and approved by the governor on August 6, 1974 and that chapters 4, 5, and 8 took effect 3 months after that date on November 6, 1974 as was provided in section 1102 as originally enacted.
      Effective date of amendatory act.
      Section 4. This amendatory act shall take effect August 6, 1975.
      This act is ordered to take immediate effect.
      Approved July 25, 1975.

        PUBLIC ACTS 1975 — No. 180
      [No. 180]
      AN ACT to amend sections 20 and 21 of chapter 8 of Act No. 175 of the Public Acts of 1927, entitled "An act to revise, consolidate and codify the laws relating to criminal procedure and to define the jurisdiction, powers, and duties of courts and of the judges and other officers thereof under the provisions of this act; to provide laws relative to the rights of persons accused of criminal offenses; to provide for the arrest of persons charged with or suspected of criminal offenses; to provide for bail of persons arrested for or accused of criminal offenses; to provide for the examination of such persons accused of criminal offenses; to regulate the procedure relative to grand juries, indictments, informations, and proceedings before trial; to provide for trials of persons complained of or indicted for criminal offenses and to provide for the procedure therein; to provide for judgments and sentences of persons convicted of criminal offenses; to provide for procedure relating to new trials, appeals, writs of error and bills of exception in criminal causes; to provide a uniform system of probation throughout the state of Michigan, the appointment of probation officers and to prescribe the powers, duties and compensation of such officers and to provide penalties for the violation of the duties of such officers; to provide for procedure governing proceedings to prevent crime; proceedings for the discovery of crime; to provide for the jurisdiction, powers, duties, and procedure of justices of the peace in criminal cases; to provide for fees of officers, witnesses and others in criminal cases; miscellaneous provisions as to criminal procedure in certain cases; to provide penalties for the violation of certain provisions of this act and to repeal all acts and parts of acts inconsistent with or contravening any of the provisions of this act,” as amended by Act No. 63 of the Public Acts of T974, being sections 768.20 and 768.21 of the Compiled Laws of 1970; and to add sections 20a, 21a, 29a and 36.

        The People of the State of Michigan enact:

      Sections amended and added; code of criminal procedure.
      Section 1. Sections 20 and 21 of chapter 8 of Act No. 175 of the Public Acts of 1927, as amended by Act No. 63 of the Public Acts of 1974, being sections 768.20 and 768.21 of the Compiled Laws of 1970, are amended and sections 20a, 21a, 29a and 36 are added to read as follows:
      CHAPTER 8
      768.20 Alibi as defense in felony case; notice of intention to claim defense; notice of rebuttal; disclosure and calling of additional witnesses. [M.S.A. 28.1043]
      Sec. 20. (1) If a defendant in a felony case proposes to offer in his defense testimony to establish an alibi at the time of the alleged offense, the defendant shall at the time of arraignment on the information or within 15 days after that arraignment but not less than 10 days before the trial of the case, or at such other time as the court directs, file and serve upon the prosecuting attorney a notice in writing of his intention to claim that defense. The notice shall contain, as particularly as is known to the defendant or the defendant’s attorney, the names of witnesses to be called in behalf of the defendant to establish that defense. The defendant’s notice shall include specific information as to the place at which the accused claims to have been at the time of the alleged offense.
      (2) Within 10 days after the receipt of the defendant’s notice but not later than 5 days before the trial of the case, or at such other time as the court may direct, the prosecuting attorney shall file and serve upon the defendant a notice of rebuttal which shall contain, as particularly as is known to the prosecuting attorney, the names of the witnesses whom the prosecuting attorney proposes to call in rebuttal to controvert the defendant’s defense at the trial of the case.
      (3) Both the defendant and the prosecuting attorney shall be under a continuing duty to disclose promptly the names of additional witnesses which come to the attention of either party subsequent to filing their respective notices as provided in this section. Upon motion with notice to the other party and upon a showing by the moving party that the name of an additional witness was not available when the notice required by subsections (1) or (2) was filed and could not have been available by the exercise of due diligence, the additional witness may be called by the moving party to testify as a witness for the purpose of establishing or rebutting an alibi defense.
      768.20a Insanity as defense in felony case; notice of intention to assert defense; examination; independent psychiatric evaluation; cooperation required; admissibility of statements; report; notice of rebuttal. [M.S.A. 28.1043(1)]
      Sec. 20a. (1) If a defendant in a felony case proposes to offer in his defense testimony to establish his insanity at the time of an alleged offense, the defendant shall file and serve upon the court and the prosecuting attorney a notice in writing of his intention to assert the defense of insanity not less than 30 days before the date set for the trial of the case, or at such other time as the court directs.
      (2) Upon receipt of a notice of an intention to assert the defense of insanity, a court shall order the defendant to undergo an examination relating to his claim of insanity by personnel of the center for forensic psychiatry for a period not to exceed 30 days. When the defendant is to be held in jail pending trial, the center, in its discretion, may perform the examination in the jail, or may notify the sheriff to transport the defendant to the center for the examination, and the sheriff shall return the defendant to the jail upon completion of the examination. When the defendant is at liberty pending trial, on bail or otherwise, the defendant shall make himself available for the examination at the place and time established by the center. If the defendant, after being notified by the center of the place and time of the examination, fails to make himself available for the examination, the court may, without a hearing, order his commitment to the center.
      (3) The defendant may, at his own expense, or if indigent, at the expense of the county, secure an independent psychiatric evaluation by a clinician of his choice on the issue of his insanity at the time the alleged offense was committed. The defendant shall notify the prosecuting attorney at least 5 days before the day scheduled for the independent evaluation that he intends to secure such an evaluation. The prosecuting attorney may similarly obtain independent psychiatric evaluation. A clinician secured by an indigent defendant shall be entitled to receive a reasonable fee as approved by the court.
      (4) The defendant shall fully cooperate in his examination by personnel of the center for forensic psychiatry and by any other independent examiners for the defense and prosecution. If he fails to cooperate, and that failure is established to the satisfaction of the court at a hearing prior to trial, the defendant shall be barred from presenting testimony relating to his insanity at the trial of the case.
      (5) Statements made by the defendant to personnel of the center for forensic psychiatry or to any independent examiner during an examination shall not be admissible or have probative value in court at the trial of the case on any issues other than his mental illness or insanity at the time of the alleged offense.
      (6) Upon conclusion of the examination, the center for forensic psychiatry, and any other independent examiner, shall prepare a written report and shall submit the report to the prosecuting attorney, and defense counsel. The report shall contain:
      (a) The clinical findings of the center or any independent examiner.
      (b) The facts, in reasonable detail, upon which the findings were based.
      (c) The opinion of the center or the independent examiner on the issue of the defendant’s insanity at the time the alleged offense was committed and whether the defendant was mentally ill or mentally retarded at the time the alleged offense was committed.
      (7) Within 10 days after the receipt of the report from the center for forensic psychiatry or within 10 days after the receipt of the report of an independent examiner secured by the prosecution, whichever occurs later, but not later than 5 days before the trial of the case, or at such other time as the court directs, the prosecuting attorney shall file and serve upon the defendant a notice of rebuttal of the defense of insanity which shall contain the names of the witnesses whom the prosecuting attorney proposes to call in rebuttal.
      (8) The report of the center for forensic psychiatry or any other independent examiner may be admissible in evidence upon the stipulation of the prosecution and defense.
      768.21 Failure to file and serve notices or to state names of witnesses with particularity; exclusion of evidence. [M.S.A. 28.1044]
      Sec. 21. (1) If the defendant fails to file and serve the written notice prescribed in section 20 or 20a, the court shall exclude evidence offered by the defendant for the purpose of establishing an alibi or the insanity of the defendant. If the notice given by the defendant does not state, as particularly as is known to the defendant or the defendant’s attorney, the name of a witness to be called in behalf of the defendant to establish a defense specified in section 20, the court shall exclude the testimony of a witness which is offered by the defendant for the purpose of establishing that defense.
      (2) If the prosecuting attorney fails to file and serve a notice of rebuttal upon the defendant as provided in section 20 or 20a, the court shall exclude evidence offered by the prosecution in rebuttal to the defendant’s evidence relevant to a defense specified in section 20 or 20a. If the notice given by the prosecuting attorney does not state, as particularly as is known to the prosecuting attorney, the name of a witness to be called in rebuttal of the defense of alibi or insanity, the court shall exclude the testimony of a witness which is offered by the prosecuting attorney for the purpose of rebutting that defense.
      768.21a Persons deemed legally insane. [M.S.A. 28.1044(1)]
      Sec. 21a. (1) A person is legally insane if, as a result of mental illness as defined in section 400a of Act No. 258 of the Public Acts of 1974, being section 330.1400a of the Michigan Compiled Laws, or as a result of mental retardation as defined in section 500(g) of Act No. 258 of the Public Acts of 1974, being section 330.1500 of the Michigan Compiled Laws, that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.
      (2) A person who is under the influence of voluntarily consumed or injected alcohol or controlled substances at the time of his alleged offense shall not thereby be deemed to have been legally insane.
      768.29a Defense of insanity in criminal action tried before jury; instructions. [M.S.A. 28.1052(1)]
      Sec. 29a. (1) If the defendant asserts a defense of insanity in a criminal action which is tried before a jury, the judge shall, before testimony is presented on that issue, instruct the jury on the law as contained in sections 400a and 500(g) of Act No. 258 of the Public Acts of 1974 and in section 21a of chapter 8 of this act.
      (2) At the conclusion of the trial, where warranted by the evidence, the charge to the jury shall contain instructions that it shall consider separately the issues of the presence or absence of mental illness and the presence or absence of legal insanity and shall also contain instructions as to the verdicts of guilty, guilty but mentally ill, not guilty by reason of insanity, and not guilty with regard to the offense or offenses charged and, as required by law, any lesser included offenses.
      768.36 Defense of insanity in compliance with § 768.20a; finding of "guilty but mentally ill”; waiver of right to trial; plea of guilty but mentally ill; examination of reports; hearing; sentence; evaluation and treatment; discharge; report to parole board; treatment as condition of parole or probation; period of probation; psychiatric reports. [M.S.A. 28.1059]
      Sec. 36. (1) If the defendant asserts a defense of insanity in compliance with section 20a, the defendant may be found "guilty but mentally ill” if, after trial, the trier of fact finds all of the following beyond a reasonable doubt:
      (a) That the defendant is guilty of an offense.
      (b) That the defendant was mentally ill at the time of the commission of that offense.
      (c) That the defendant was not legally insane at the time of the commission of that offense.
      (2) If the defendant asserts a defense of insanity in compliance with section 20a and the defendant waives his right to trial, by jury or by judge, the trial judge, with the approval of the prosecuting attorney, may accept a plea of guilty but mentally ill in lieu of a plea of guilty or a plea of nolo contendere. The judge may not accept a plea of guilty but mentally ill until, with the defendant’s consent, he has examined the report or reports prepared pursuant to section 20a, has held a hearing on the issue of the defendant’s mental illness at which either party may present evidence, and is satisfied that the defendant was mentally ill at the time of the offense to which the plea is entered. The reports shall be made a part of the record of the case.
      (3) If a defendant is found guilty but mentally ill or enters a plea to that effect which is accepted by the court, the court shall impose any sentence which could be imposed pursuant to law upon a defendant who is convicted of the same offense. If the defendant is committed to the custody of the department of corrections, he shall undergo further evaluation and be given such treatment as is psychiatrically indicated for his mental illness or retardation. Treatment may be provided by the department of corrections or by the department of mental health after his transfer pursuant to sections 1000 or 1002 of Act No. 258 of the Public Acts of 1974, being sections 330.2000 or 330.2002 of the Michigan Compiled Laws. Sections 1004 and 1006 of Act No. 258 of the Public Acts of 1974 shall apply to the discharge of such a defendant from a facility of the department of mental health to which he has been admitted and shall apply to the return of such a defendant to the department of corrections for the balance of the defendant’s sentence. When a treating facility designated by either the department of corrections or the department of mental health discharges such a defendant prior to the expiration of his sentence, that treating facility shall transmit to the parole board a report on the condition of the defendant which contains the clinical facts, the diagnosis, the course of treatment, and the prognosis for the remission of symptoms, the potential for recidivism and for the danger to himself or the public, and recommendations for future treatment. In the event that the parole board pursuant to law or administrative rules should consider him for parole, the board shall consult with the treating facility at which the defendant is being treated or from which he has been discharged and a comparable report on the condition of the defendant shall be filed with the board. If he is placed on parole by the parole board, his treatment shall, upon recommendation of the treating facility, be made a condition of parole, and failure to continue treatment except by agreement with the designated facility and parole board shall be a basis for the institution of parole violation hearings.
      (4) If a defendant who is found guilty but mentally ill is placed on probation under the jurisdiction of the sentencing court pursuant to law, the trial judge, upon recommendation of the center for forensic psychiatry, shall make treatment a condition of probation. Reports as specified by the trial judge shall be filed with the probation officer and the sentencing court. Failure to continue treatment, except by agreement with the treating agency and the sentencing court, shall be a basis for the institution of probation violation hearings. The period of probation shall not be for less than 5 years and shall not be shortened without receipt and consideration of a forensic psychiatric report by the sentencing court. Treatment shall be provided by an agency of the department of mental health, or with the approval of the sentencing court and at individual expense, by private agencies, private physicians, or other mental health personnel. A psychiatric report shall be filed with the probation officer and the sentencing court every 3 months during the period of probation. If a motion on a petition to discontinue probation is made by the defendant, the probation officer shall request a report as specified from the center for forensic psychiatry or any other facility certified by department of mental health for the performance of forensic psychiatric evaluation.
      Applicability of amendatory act.
      Section 2. This amendatory act shall apply to offenses committed on or after the effective date of this act. The law in effect at the time the offense was committed shall apply to offenses committed before the effective date of this act.
      Effective date.
      Section 3. This amendatory act shall take effect August 6, 1975.
      Conditional effective date.
      Section 4. This amendatory act shall not take effect unless House Bill No. 4362 of the 1975 Regular Session of the legislature is enacted into law.
      This act is ordered to take immediate effect.
      Approved July 25, 1975.

       MCL 768.21a(l); MSA 28.1044(1X1).

         MCL 330.1400a; MSA 14.800(400a).

       MCL 330.1500(g); MSA 14.800(500)(g).

       386 Mich 407, 416, 418; 192 NW2d 215 (1971).

        Durham v United States, 94 US App DC 228; 214 F2d 862 (1954).

        People v Durfee, 62 Mich 487; 29 NW 109 (1886).

       MCL 768.20a; MSA 28.1043(1).

       MCL 768.21; MSA 28.1044.

       MCL 768.29a(l); MSA 28.1052(1)(1).

       MCL 768.36; MSA 28.1059.


author: R. M. Maher, J. Bashara, J.

text:
    CYRUS v CALHOUN COUNTY SHERIFF
    Docket No. 77-4514.
    Submitted May 3, 1978, at Grand Rapids.
    Decided August 22, 1978.
    Carletta P. Cyrus and Michael S. Wallerick were Calhoun County deputy sheriffs. While still probationary employees, they were discharged allegedly as a result of a polygraph examination. After their discharge they sought mandamus in the circuit court. The application for mandamus was denied, Calhoun Circuit Court, Creighton R. Coleman, J. The plaintiffs appeal. Held:

    1. The circuit court was correct in denying mandamus because the plaintiffs have failed to prove that they had no adequate legal remedies under their collective bargaining agreement.
    2. The discharge of the employees was improper as it was in violation of the statute which prohibits the discharge of an employee based on the results of a polygraph test.
    Affirmed in part, reversed in part.
    Bashara, J., concurred in part and dissented in part. He would hold that the statute which gives a sheriff the authority to hire and fire deputies at any time is an exception to the statute which forbids the discharge because of polygraph test results.
    Opinion of the Court
    1. Mandamus — Adequate Legal Remedy.
    The lack of an adequate legal remedy is a necessity before a writ of mandamus may issue.
    References for Points in Headnotes
    [1] 52 Am Jur 2d, Mandamus § 46 et seq.

    [2] 52 Am Jur 2d, Mandamus §§ 310, 311, 338, 490 et seq.

    [3-6] 73 Am Jur 2d, Statutes § 257.
    [4] 76 Am Jur 2d, Unemployment Compensation § 55.
    [5] 73 Am Jur 2d, Statutes § 392 et seq.

    Constitutional requirement that repealing or amending statutes refer to statute repealed or amended, to repeal or amend by implication. 5 ALR2d 1270.

      2. Mandamus — Abuse of Discretion — Appeal and Error.
    The Court of Appeals should not interfere with a trial court’s refusal to issue a writ of mandamus absent a clear abuse of discretion.
    3. Statutes — Statutory Construction — Specific Statutes — General Statute — Procedure.
    It is an established rule of statutory construction that a specific statute takes precedence over a general one and is viewed as an exception thereto.
    4. Statutes — Specific Statutes — General Statutes — Employers— Polygraph Tests — Discharge of Employees — Sheriffs.
    A specific statute which forbids the discharge of an employee solely because of an alleged or actual opinion that the employee did not tell the truth during a polygraph examination is an exception to a general statute which allows a sheriff to hire and fire deputies at will; the polygraph statute prohibits the use of a specific means of terminating employment and thus precludes employers in one particular way from practicing the general rule of terminating employment at will (MCL 51.70, 338.1726[2]; MSA 5.863, 18.186[26] [2]).
    5. Statutes — Conflicting Statutes — Repeal of Statutes — Repeal by Implication.
    A later statute will repeal an earlier one to the extent that the two are repugnant, although repeal of an act by implication is not favored.
    Partial Concurrence, Partial Dissent by Bashara, J.
    6. Statutes — Specific Statutes — General Statutes — Sheriffs—Discharge of Employees — Polygraph Tests — Employers.

      The speciñc statute which gives a sheriff the power to hire and ñre deputies at will takes precedence over the more general statute which prohibits the dismissal of an employee solely because of an alleged or actual opinion that the employee did not tell the truth during a polygraph examination; the "polygraph” statute cannot limit a sheriff’s ability to dismiss his deputies (MCL 51.70, 338.1726[2]; MSA 5.863,18.186[26][2]).

      Hankins, Kluck & Robillard, P. C. (by Thomas A. Carlson), for plaintiffs.
    Calhoun County Prosecutor’s Office (by Roger L. Caswell, Chief, Civil Division), for defendant.

      Before: D. E. Holbrook, Jr., P. J., and Bashara and R. M. Maher, JJ.
   R. M. Maher, J.

Plaintiffs appeal from a decision of the circuit court denying their application for mandamus. The plaintiffs were dismissed from their positions as Calhoun County deputy sheriffs. Their complaint alleged that they were discharged as a result of a polygraph examination in violation of MCL 338.1726(2); MSA 18.186(26)(2).

Plaintiffs claim that they had no enforceable right to challenge their discharges, as they were probationary employees. They reason that under the collective bargaining agreement, the union would not process grievances of probationary employees.

Although the collective bargaining agreement was not presented for our view, we accept plaintiffs’ interpretation of it. However, we are equally convinced that the trial judge was correct in denying the application for mandamus. Plaintiffs have failed to prove that they had no adequate legal remedies under the contract. The fact that union representatives might not pursue any rights available does not nullify plaintiffs’ right to proceed against the employer for an alleged improper dismissal.

The lack of an adequate legal remedy is a necessity before a writ of mandamus may issue, Clarke v Hill, 132 Mich 434; 93 NW 1044 (1903). Furthermore, precedent mandates that this Court not interfere with the trial court’s refusal to issue a writ of mandamus, absent a clear abuse of discretion. Kortering v Muskegon, 41 Mich App 153; 199 NW2d 660 (1972).

In affirming the trial court’s denial of the application for a writ of mandamus, we must speak to the remaining issue raised by the trial court and the litigants. Does the so-called "polygraph statute” limit a sheriffs ability to dismiss his deputies? The resolution involves two statutes which are in apparent conflict. MCL 338.1726(2); MSA 18. 186(26)(2) provides:

"An employer or agent shall not discharge an employee solely because of an alleged or actual opinion that the employee did not tell the truth during a polygraph examination, lie detector test, or similar test.”

On the other hand, MCL 51.70; MSA 5.863 states in part:

"Each sheriff may appoint 1 or more deputy sheriffs at his pleasure, and may revoke such appointments at any time.”

We believe the "polygraph statute” does limit a sheriffs power to dismiss his deputies.

It is an established rule of statutory construction that a specific statute takes precedence over a general one and is viewed as an exception thereto. See People v Seeley, 24 Mich App 539; 180 NW2d 333 (1970), in which this Court quoted with approval from 22 Callaghan’s Michigan Civil Jurisprudence, Statutes, § 132, pp 494-495:

"[W]here there are two acts or provisions, one of which is special and particular, and certainly includes the matter in question, and the other is general, and would, if standing alone, include the same matter and thus conflict with the special act or provision, the special act must be taken as intended to constitute an exception to the general act or provision, * * * as the legislature is not presumed to have intended conflict.”

While it is a close question, we view the polygraph statute, MCL 338.1726(2); MSA 18.186(26)(2), as the specific statute and an exception to the general statute concerning a sheriffs power to hire and fire deputies, MCL 51.70; MSA 5.863. The latter statute is an expression of a general rule that employment contracts are terminable at will; the statute makes the rule applicable to sheriffs and their deputies. The polygraph statute prohibits the use of a specific means of terminating employment. It thus precludes employers in one particular way from practicing the general rule of terminating employment at will. The polygraph statute is an exception to the general rule; the sheriff’s statute applies the general rule.

We recognize that the office of sheriff is constitutionally created, but we do not deem that factor decisive. The power of the Legislature is also constitutionally created (see Const 1963, art 4, § 1) and through that power the Legislature has passed both statutes at issue in this case. The constitutional underpinning of one is no greater than that of the other.

Limiting the power of a sheriff to dismiss deputies is not without precedent. In Locke v Macomb County, 387 Mich 634; 199 NW2d 166 (1972), the Supreme Court affirmed a Court of Appeals ruling that the Civil Service statutes limited a sheriffs discretion in the hiring and firing of deputies. The rationale in Locke is applicable here. The Court in that case relied on the well-established rule that, although repeal of an act by implication is not favored, a later act will repeal an earlier act to the extent that the two are repugnant. Breitung v Lindauer, 37 Mich 217 (1877), Jackson v Corrections Comm, 313 Mich 352; 21 NW2d 159 (1946), Wayne County Civil Service Comm v Board of Supervisors, 384 Mich 363; 184 NW2d 201 (1971).

Using the Locke rationale, the statute empowering sheriffs to hire and fire deputies at will (which took effect in 1929) is repealed but only to the extent it is inconsistent with the later-enacted polygraph statute (which took effect in 1973). We must presume that the Legislature intended a pro tanto repeal, for the last expression of the legislative will must control. Jackson v Corrections Comm, supra, at 356. Prohibiting a sheriff from dismissing his deputies on the basis of the results of a polygraph test limits the sheriff’s statutory power to hire and fire at will, but certainly does not nullify it completely. The power is diminished only insofar as the Legislature, expressing its will in the later-enacted polygraph statute, allows it to be.

Based on well-established rules of statutory construction, that a specific statute takes precedence over a general one and that a later statute repeals an earlier inconsistent one pro tanto, we hold that the polygraph statute does limit the sheriff’s power to dismiss his deputies.

Affirmed in part, reversed in part.

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

Bashara, J.

(concurring in part; dissenting in part). While I agree with the majority that the trial court was correct in denying the application for mandamus, I cannot concur in its resolution of the remaining issue. I do not believe the "polygraph statute” can limit a sheriff’s ability to dismiss his deputies.

As the majority states, it is an unquestioned principle of statutory construction that a specific statute takes precedence over a general one. In Dossin’s Food Products, Inc v State Tax Comm, 360 Mich 312, 315; 103 NW2d 474 (1960), our Supreme Court stated:

"We shall apply the well recognized rule of statutory construction holding that the repeal of a specific statute by a general statute will not be implied or assumed.”

In Labor Mediation Board v Tuscola County Sheriff, 25 Mich App 159; 181 NW2d 44 (1970), our Court found that the office of sheriff is constitutionally created, whereas the labor mediation act is purely statutory. See also Brownstown Twp v Wayne County, 68 Mich App 244; 242 NW2d 538 (1976) , and Const 1963, art 7, § 4. I conclude that the specific statute takes precedence over the more general "polygraph” statute.

It is argued that Local 1518, AFSCME v St Clair County Sheriff, 77 Mich App 145; 258 NW2d 168 (1977) , diminished the preexisting statutory authority of a sheriff over his employees where a collective bargaining agreement has been negotiated. However, as the concurring opinion in that case emphasizes, the sheriff’s power is diminished only to the extent that he has voluntarily retracted it by personally entering into a collective bargaining agreement.

I therefore concur in the holding of the trial court that the specific language authorizing sheriffs to appoint deputies and to revoke such appointments at any time is controlling in this case.


author: W. Van Valkenburg, J.

text:
    PEOPLE v SAMUEL SMITH
    Docket No. 77-2193.
    Submitted June 12, 1978, at Grand Rapids.
    Decided August 22, 1978.
    Defendant Samuel Smith and his wife were joint owners of a house in Saginaw. The house was reputed to be a "fortress” for the sale of narcotics. A police informer with marked money entered the house and returned with two foil packets of heroin. Later, defendant was arrested as he exited the house, and was found to be carrying some of the marked money. The house contained drug paraphernalia and other people lived there. Defendant did not deny that the informer bought heroin from a person in the house, but claimed he knew nothing about it and that he did not know the informer and consequently never agreed to deliver anything to anybody. Samuel Smith was convicted of delivery of heroin and conspiracy to deliver heroin in Saginaw Circuit Court, Joseph R. McDonald, J. Defendant appeals, alleging that the trial court should have directed a verdict of acquittal on the ground that the evidence was insufficient to support the charges against him, that the court’s instructions misled the jury as to the proofs necessary for conviction on each offense and that the court committed reversible error in denying a legitimate defense request for clarifying instructions and in admitting evidence of other drug purchases at a house co-owned by defendant where such evidence did not show similar acts by him and was not determined to be more probative than prejudicial. Held:

    Except for the marked money, which could have been turned over to defendant by other people in the house for rent, a loan, or other purposes, no evidence was presented to connect Samuel Smith with the charges against him; therefore, failure to grant defendant’s motion for a directed verdict was error. A jury instruction which omitted a necessary element and permitted the jury to convict the defendant of a conspiracy with which he was never charged was erroneous. The introduction of evidence of other drug purchases at a house co-owned by the defendant was erroneous because the similar acts statute requires that the acts sought to be introduced must have been committed by the defendant and not by others. Where such evidence is presented, the trial judge must use his discretion to determine whether any probative value is outweighed by potential prejudice. The trial court abused its discretion in allowing the admission of this evidence under the similar acts statute.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trials §§ 548-558.
    [2] 5 Am Jur 2d, Appeal and Error § 608.
    [3, 4] 29 Am Jur 2d, Evidence §§ 163-165, 1091, 1125.
    [5] 16 Am Jur 2d, Conspiracy §§ 1, 7-11, 43.
    [6] 16 Am Jur 2d, Conspiracy §§ 9, 10, 35, 36.
    [7] 5 Am Jur 2d, Appeal and Error § 894.
    [8] 75 Am Jur 2d, Trial §§ 713, 715.
    [9] 75 Am Jur 2d, Trial § 727 et seq.

    [10, 11] 29 Am Jur 2d, Evidence § 298 et seq.

    Admissibility in federal conspiracy prosecution of evidence of defendant’s similar prior criminal act. 20 ALR Fed 125.

      Reversed, defendant discharged.
    1. Criminal Law — Burden of Proof — Elements of Crime — Directed Verdict.
    A prosecutor has the burden of producing some evidence on each material element of the crime charged and if the prosecution does not establish some evidence on each element, a motion for a directed verdict of acquittal should be granted; the test to be applied on a motion for a directed verdict of acquittal is not whether the evidence presented proves guilt beyond a reasonable doubt but whether there is any evidence at all on each material element of the offense.
    2. Appeal and Error — Criminal Law — Trial—Motions—Directed Verdict of Acquittal — Sufficiency of Evidence.
    An appellate court tests the correctness of the denial of a motion for a directed verdict of acquittal by taking the evidence presented by the prosecution in the light most favorable to the prosecution and deciding if there is any evidence upon which the trier of fact could predicate a finding of guilty.
    3. Criminal Law — Circumstantial Evidence — Burden of Proof.
    The prosecution has the burden of proving that there is no innocent theory possible which will, without violation of reason, accord with the facts where the people’s case is based on circumstantial evidence.
    4. Criminal Law — Evidence—Circumstantial Evidence — Inferences — Burden of Proof — Inferences on Inferences — Imagination.
    A prosecutor must prove beyond any reasonable doubt the facts from which inferences of guilt are drawn; where guilt in a criminal matter is sought to be proved by circumstantial evidence the inferences must be such as will admit of no other rational conclusion; inferences cannot be built on inference and a person cannot be convicted on imagination.
    5. Conspiracy — Unlawful Agreement — Definition—Proof of ' Crime.
    The gist of the offense of conspiracy lies in an agreement between two or more persons to further, promote, or cooperate in an unlawful enterprise; to prove the crime of conspiracy it must be established that the intent of that unlawful purpose, including that knowledge, was possessed by more than one individual since there can be no conspiracy without a combination of two or more persons.
    6. Criminal Law — Inferences—Joint Ownership — Intent to Deliver — Heroin.
    The fact that a person was a joint owner of a house where narcotics were sold to an undercover police officer and was apprehended as he exited the home with the undercover police agent’s marked money on his person does not indicate or support a fair inference that the defendant entertained a specific intent to deliver heroin or any of the contents of the house.
    7. Appeal and Error — Instructions to Jury — Claims of Error— Review Entire Instructions.
    The Court of Appeals reads instructions to the jury in their entirety when reviewing claims of instructional error.
    8. Conspiracy — Instructions to Jury — Element of Crime Omitted —Error.
    An instruction to the jury which omitted the necessary element that the jury must find a conspiracy between a defendant, charged with delivery and conspiracy to deliver heroin, and a police informer, and which permitted the jury to find the defendant guilty of a conspiracy between himself and someone other than the police informer was erroneous because it permitted the jury to convict defendant of a conspiracy with which he was never charged.
    9. Criminal Law — Instructions to Jury — Defendant’s Theory— Requests to Instruct — Statement of Theory — Court Rules.
    Failure of the trial court to summarize a defendant’s theory of the case was not error where counsel neglected to make such a request or submit a statement thereof to the trial court (GCR 1963, 516.7).
    10. Evidence — Criminal Law — Similar Acts — Acts of Defendant— Acts of Others — Motive and Intent — Statutes.
    The similar acts statute allows prosecutors to prove guilt by introducing into evidence other similar acts of a defendant which show motive and intent; the acts however, must be committed by the defendant and not by others (MCL 768.27; MSA 28.1050).
    11. Evidence — Criminal Law — Similar Acts — Motive or Intent— Probative Value — Potential Prejudice — Statutes.
    A trial judge must use his discretion to determine whether any probative value is outweighed by potential prejudice where evidence of a defendant’s similar acts is presented to prove motive or intent (MCL 768.27; MSA 28.1050).

      Barbara R. Levine, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P. J., and R. B. 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.

   W. Van Valkenburg, J.

Defendant was jury convicted of delivery of heroin contrary to MCL 335.341(l)(a); MSA 18.1070(41)(l)(a) and conspiracy to deliver heroin contrary to MCL 750.157a(a); MSA 28.354(l)(a). He was sentenced to concurrent terms of from 10 to 20 years and appeals as of right.

An understanding of the issues in the present case requires a brief statement of the pertinent facts. Samuel Smith and Helen Smith, husband and wife, jointly own property at 420 South Thirty-First Street, Saginaw, Michigan, which was alleged to have been a "fortress” for the sale of narcotics to middlemen, who in turn sold to consumers. On April 6, 1976, Detective Sergeant Clifford DeFeyter, while acting as an undercover agent under the alias of "Butch”, delivered $140 in marked money to one James Choyce. The latter entered the house and returned with two metal foil packets which proved to contain heroin.

About two or three hours later a crew of officers arrived on the scene and observed defendant exiting the home. He was arrested and found to be carrying $849 of which $135 matched the serial numbers of the money given to Choyce by Officer DeFeyter.

A search of the premises, after a warrant was obtained, revealed that people lived there and that various drug paraphernalia, including two bags of a reducing agent, a measuring spoon and a square piece of mirror, were kept in the kitchen and bathroom.

Defendant based his defense on the theory that the evidence did not support the charges set forth in the information. He did not deny the fact that Choyce bought heroin from a person in the house, but claimed that he knew nothing about it. He also argued that he did not know Choyce and consequently never agreed to deliver anything to anybody.

Defendant has presented five issues for consideration.

I.

Defendant first contends that the trial court committed reversible error in failing to direct a verdict of acquittal at the close of the people’s case on the ground that the evidence was insufficient to support a conviction on the delivery and conspiracy charges.

For assistance we quote in part the guidelines set forth in 2 Gillespie, Michigan Criminal Law & Procedure (1978 rev 2d ed), § 632, p 238:

"Reasonable inferences arising from the evidence may constitute satisfactory proof of the elements of the offense. However, if the prosecution, without the aid of defendant’s proofs, does not establish some evidence on every element, a directed verdict for acquittal or a motion to dismiss must be granted. If there is no evidence at all on any one of the elements, the motion must be granted and it is reversible error to fail to do so.
"The test to be applied on a motion for a directed verdict is not whether the evidence presented proves guilt beyond a reasonable doubt but whether there is any evidence at all on each material element of the offense. If there is, then the trial should proceed to conclusion, at which time the fact finder then decides whether or not the evidence is sufficient to establish guilt beyond a reasonable doubt. An appellate court tests the correctness of the denial of a motion to direct a verdict of acquittal by taking the evidence presented by the prosecution in the light most favorable to the prosecution and deciding if there was any evidence upon which the trier of fact could predicate a finding of guilty. A reviewing court must determine whether that evidence, if credible and believed, would justify a reasonable man in concluding that all elements of the crime were established beyond a reasonable doubt.
"In passing on a motion for a directed verdict of acquittal the court may only consider the evidence which has been introduced at the time the motion is made, * * * .”

The above rules are set out in: People v DeClerk, 400 Mich 10, 17; 252 NW2d 782 (1977), People v Garcia, 398 Mich 250, 256; 247 NW2d 547 (1976), People v Killingsworth, 80 Mich App 45, 48; 263 NW2d 278 (1977), People v Trotter, 76 Mich App 260, 262; 256 NW2d 585 (1977), People v Royal, 62 Mich App 756, 758; 233 NW2d 860 (1975).

As may be gleaned from the facts, the evidence here was entirely circumstantial and will be governed by the rule promulgated in People v Davenport, 39 Mich App 252, 256; 197 NW2d 521 (1972):

"The established rule is that where the people’s case is based on circumstantial evidence the prosecution has the burden of proving 'that there is no innocent theory possible which will, without violation of reason, accord with the facts’.” (Citations omitted.)

A similar statement of the rule can be found in People v Jablonski, 70 Mich App 218, 225; 245 NW2d 571 (1976):

"We agree with defendant that the test was stated in People v Sessions, 58 Mich 594, 606; 26 NW 291 (1886), that where guilt in a criminal matter is sought to be proved by circumstantial evidence, the facts from which the inferences are drawn must be proved beyond any reasonable doubt, and the inferences must be such as will admit of no other rational conclusion.”

See People v Ridgeway, 74 Mich App 306, 316; 253 NW2d 743 (1977).

While a reasonable inference may be drawn from an established fact, inferences cannot be built on inferences. People v Atley, 392 Mich 298, 314-315; 220 NW2d 465 (1974).

Furthermore, a person cannot be convicted on imagination. Brownell v People, 38 Mich 732, 737 (1878).

Was there a conspiracy between Choyce and defendant to deliver heroin? The record shows that the drug was secured from another person, not defendant, and no evidence was presented which would lead a reasonable person to believe that Smith had any knowledge of the sale to Sgt. DeFeyter.

Therefore, it is difficult to conclude, under these circumstances, that any type of agreement existed between the two men. That being the case, the prosecutor failed to meet the tests as set forth in Atley, supra, at 310-311:

"Therefore, defendant’s intent to sell marijuana must be established in the present case, and to establish that intent, there must be evidence of knowledge of the unlawful purpose of sale. To prove the crime of conspiracy, however, it must further be proven that that intent, including that knowledge, was possessed by more than one individual since there can be no conspiracy without a combination of two or more persons. People v DiLaura, 259 Mich 260; 243 NW 49 (1932). Where only one person has knowledge of the unlawful end, there is no combined intent to do what is unlawful. Perkins, On Criminal Law, 545 (1957).
"It must be shown that the respective conspirators intended to further, promote, or cooperate in the unlawful enterprise. The gist of the offense of conspiracy lies in the unlawful agreement between two or more persons. People v Smith, 296 Mich 176; 295 NW 605 (1941); People v Asta, 337 Mich 590, 611; 60 NW2d 472 (1953).” (Emphasis in original.)

The prosecutor attempted during the trial, in view of the joint ownership of the house and the marked money found on defendant, to show that he aided and abetted Choyce’s delivery of the heroin to the police officer. Again, this effort is based on inferences. The fact that a person is a joint owner of a certain piece of property does not indicate that he entertained a specific intent to deliver. People v Jerry Johnson, 68 Mich App 697, 700; 243 NW2d 715 (1976).

Furthermore, it was never established that defendant and Choyce even knew one another. Patently, there could be no aiding and abetting where there were no communications between them.

This Court is fully cognizant of the difficulties often encountered by prosecutors in proving defendants guilty of drug offenses beyond a reasonable doubt. However, courts are bound by the rules as presently established. Except for the marked money, which could have been turned over to defendant by the others in the house for rent, a loan, or other purposes, no evidence was presented to connect Mr. Smith with these charges.

Therefore, having reviewed the evidence in the light most favorable to the people, we hold on authority of Atley, Davenport, Jablonski and Ridgeway that the trial court erred in not granting the motion for a directed verdict as to both charges.

II.

Defendánt next contends that he was denied his due process right to be tried by a properly instructed jury since the trial court’s instructions as a whole misled the jury as to the proofs necessary for conviction on each offense and that the court erroneously denied a legitimate defense request for clarifying instructions.

Defendant contends that the instructions concerning delivery confused the jury as to whether the delivery inside the house to Choyce or the delivery to the police officer was the one charged in the first count.

The trial judge relied upon the statutory language in defining the term delivery and then summarized as follows:

"[T]he delivery is the mere transfer from one person to another of a controlled substance. That’s all that is required to prove this crime.”

Counsel objected and requested the following clarifying instruction:

"If the jury finds that on April 6, 1976, Samuel Smith did not aid or abet James Choyce in delivering heroin to a Michigan State Police undercover agent, they must find the defendant, Samuel Smith, not guilty.”

The denial of this request was not serious error since the judge, in summarizing the prosecutor’s theory of the case, adequately described the charged delivery as that made by Choyce to the officer.

When reviewing claimed errors in the instructions to the jury, this Court reads them in their entirety. People v Benevides, 71 Mich App 168, 175-176; 247 NW2d 341 (1976).

The instructions dealing with the conspiracy count, however, are another matter. The conspiracy count was described by the court as:

"In count two, he’s charged with conspiracy that on April 6, 1976, that he did unlawfully, wickedly, maliciously, and feloniously combine, conspire, confederate, and agree together to commit the crime of delivery of a controlled substance: heroin.”
"Criminal conspiracy is a mutual understanding or agreement between two or more persons, express or implied, to do or accomplish some criminal or unlawful act.” People v Hintz, 69 Mich App 207, 217; 244 NW2d 414 (1976).

Obviously, the instruction given omitted the necessary element that the jury must find the conspiracy to have existed between defendant and Choyce and permitted the jury to find guilt even where they found a conspiracy between defendant and someone other than Choyce. This was error as it permitted the jury to convict Mr. Smith of a conspiracy with which he was never charged.

Also, defendant complains that the trial court failed to summarize his theory of the case. This was not error as counsel neglected to make such a request or submit a statement thereof. People v Trammell, 70 Mich App 351, 353-354; 247 NW2d 311 (1976); GCR 1963, 516.7.

III.

Defendant also argues that the trial court committed reversible error in admitting evidence of other drug purchases at a house co-owned by defendant where such evidence did not show similar acts by him and was not determined to be more probative than prejudicial.

The statute, MCL 768.27; MSA 28.1050, reads:

"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident On his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”

This legislation, often quoted, provides a vehicle for prosecutors to prove guilt by introducing into evidence other similar acts of the defendant which show motive and intent. It cannot, however, be employed where those acts are committed by others. People v Salata, 79 Mich App 415, 420; 262 NW2d 844 (1977).

Here, the prior sales were made to Officer De-Feyter by others and no evidence was presented which indicated that the defendant supplied the drugs or participated in the transactions.

When evidence of this type is presented, the trial judge must use his discretion in order "to determine whether any probative value is outweighed by potential prejudice”. People v Bledsoe, 46 Mich App 558, 560; 208 NW2d 545 (1973).

The fact that defendant jointly owned the home would not be proof that he took part in the transactions made by others. Consequently, there was an abuse of discretion since the jury may have relied on this testimony in returning the guilty verdicts.

The consideration of these three issues is dispositive of this appeal and obviates the necessity of considering the remaining two issues raised by defendant.

Reversed. Defendant discharged.

R. B. Burns, J., concurs.

D. E. Holbrook, Jr., P. J., concurs in result only.

       Again, the attention of Michigan prosecuting attorneys is directed to the opinions issued in People v Walma, 26 Mich App 326; 182 NW2d 110 (1970), and People v Hatfield, 46 Mich App 149; 207 NW2d 485 (1973).