author: Per Curiam. D. C. Riley, P.J.

text:
    PEOPLE v RILEY
    Docket No. 77-1447.
    Submitted November 22, 1978, at Detroit.
    Decided February 27, 1979.
    Cleveland Riley pled nolo contendere to a charge of attempted delivery of a controlled substance, Recorder’s Court of Detroit, Samuel Gardner, J. The defendant appeals. The sole question on appeal is whether the defendant’s nolo plea acted as a waiver of his right to challenge the legality of a search and seizure which produced evidence against the defendant. Held:

    1. For purpose of the plea-waiver doctrine it is immaterial whether a defendant pleads guilty or nolo contendere. Therefore, the effects of the defendant’s plea must be governed according to the standards governing guilty pleas.
    2. A guilty plea waives all defects that go to whether the government can actually prove its case. When this test is applied to the present case, it is clear that the defendant’s nolo plea precludes him from challenging the validity of the search and seizure.
    Affirmed.
    D. C. Riley, P.J., concurred in part and dissented in part. She would agree with the result reached by the majority because of the defendant’s abandonment of his “ previous motion to suppress. However, she disagrees with the majority’s application of the plea-waiver doctrine to situations involving Fourth Amendment claims of illegally seized evidence. She would hold that the nolo plea in the present case would not waive the defendant’s right to challenge the legality of the search and seizure if the issue had not been abandoned.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 497, 498.
    Plea of nolo contendere or non vult contendere. 89 ALR2d 540.

       21 Am Jur 2d, Criminal Law § 495.

       21 Am Jur 2d, Criminal Law §§ 495, 501.
    Plea of nolo contendere or non vult contendere. 89 ALR2d 540.

       4 Am Jur 2d, Appeal and Error §§ 235, 270.

       4 Am Jur 2d, Appeal and Error § 271.
    21 Am Jur 2d, Criminal Law § 495.

      Opinion of the Court
    1. Criminal Law — Pleas of Guilty — Nolo Contendere — Plea-Waiver Doctrine.
    It is immaterial, for purposes of the plea-waiver doctrine, whether a defendant pleads guilty or nolo contendere.
    2. Criminal Law — Pleas of Guilty — Defects — Waiver of Defects.
    A guilty plea waives all defects that go to whether the government can. actually prove its case, but does not waive those defects which would preclude the government from convicting a defendant even if it could prove its case.
    3. Criminal Law — Nolo Contendere — Searches and Seizures — Plea-Waiver Doctrine.
    A defendant’s plea of nolo contendere precludes the defendant from challenging the validity of evidence seized during an allegedly improper search and seizure because by challenging the legality of the seized evidence, defendant is attacking the government’s ability to prove its case, and such defects are waived by a guilty plea or a plea of nolo contendere.
    4. Appeal and Error — Criminal Law — Preserving Issue — Abandonment of Issue.
    There is no justifiable reason for allowing a defendant to raise on appeal an issue that he was aware of but voluntarily abandoned in the lower court.
    Partial Concurrence, Partial Dissent by D. C. Riley, P.J.
    5. Criminal Law — Pleas of Guilty — Nolo Contendere — Plea-Waiver Doctrine — Searches and Seizures.

      A defendant’s plea of guilty or plea of nolo contendere should not constitute a waiver of his right to challenge the legality of an allegedly improper search and seizure; the plea-waiver doctrine is inapplicable to situations involving Fourth Amendment claims of illegally seized evidence.

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

      Gerald R. Goulet, for defendant on appeal.
    Before: D. C. Riley, P.J., and Bronson and T. Gillespie, JJ.

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

   Per Curiam.

Defendant pled nolo contendere to the crime of attempted delivery of a controlled substance contrary to MCL 335.341; MSA 18.1070(41) and MCL 750.92; MSA 28.287. He was sentenced to a term of two to five years in prison and now appeals as of right.

The sole question on appeal is whether defendant’s nolo plea acted as a waiver of his right to challenge the legality of the search and seizure which produced the evidence against him. We hold that it does.

First, it should be noted that for purposes of the plea-waiver doctrine it is immaterial whether defendant pleads guilty or nolo contendere. See People v Goodman, 58 Mich App 220, 222; 227 NW2d 261 (1975). Therefore, the effects of defendant’s plea must be governed according to the standards governing guilty pleas.

In recent years, the United States Supreme Court has expanded the traditional test relating to guilty pleas. Traditionally, a defendant could only attack a guilty plea on the ground that it was not voluntarily and intelligently made. Tollett v Henderson, 411 US 258; 93 S Ct 1602; 36 L Ed 2d 235 (1973) , Brady v United States, 397 US 742; 90 S Ct 1463; 25 L Ed 2d 747 (1970). In Blackledge v Perry, 417 US 21 130; 94 S Ct 2098; 40 L Ed 2d 628 (1974) , however, the Supreme Court stated that a defendant could also challenge a guilty plea on the ground that the alleged defect "went to the very power of the State to bring the defendant into court to answer the charge brought against him”. The so-called jurisdictional defect test set forth in Blackledge was further explained in Menna v New York, 423 US 61; 96 S Ct 241; 46 L Ed 2d 195 (1975). In Menna the Court stated that a guilty plea is a reliable admission of factual guilt and removes this issue and all alleged constitutional defects concerning factual guilt from subsequent attack. The plea does not, however, constitute a waiver of those constitutional defects which are irrelevant to defendant’s factual guilt of the crime charged. Accord, Journigan v Duffy, 552 F2d 283 (CA 9, 1977).

A guilty plea waives all defects that go to whether the government can actually prove its case, but does not waive those defects which would preclude the government from convicting defendant even if it could prove its case (e.g., invalid statute, double jeopardy).

When this test is applied to the present case, it seems clear that defendant’s nolo plea precludes him from challenging the validity of the search and seizure. By challenging the legality of the seized evidence, defendant is attacking the government’s ability to prove its case. As such, it is the type of error which is waived by the plea. People v Hill 86 Mich App 706; 273 NW2d 532 (1978).

We are aware that certain language used by the Michigan Supreme Court in People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), appears to lead to a different result. However, since this particular language was not necessary to the decision of the case it is merely dicta and is not binding on this Court. Since we are of the opinion that the balance between the competing interests involved in the plea-waiver rule needs to be struck differently, we decline to follow the Alvin Johnson dicta. See Hill, supra.

Finally, it should be noted that although defendant moved to suppress the evidence in question, he did not follow through on the motion and request an answer on it from the court. Instead, he chose to abandon the motion and plead. This Court has continually stated that the rule announced in Alvin Johnson does not apply when defendant raised the alleged error and then through his own inaction waived it. Hill, supra; People v McIntyre, 74 Mich App 661; 254 NW2d 603 (1977). We see no justifiable reason for allowing a defendant to raise on appeal an issue that he was aware of but voluntarily abandoned in the lower court.

Affirmed.

D. C. Riley, P.J.

(concurring in part and dissenting in part). I concur in the result reached because of defendant’s abandonment of his previous motion to suppress. However, I write separately to express my disagreement with the majority’s application of the plea-waiver doctrine to situations involving 4th Amendment claims of illegally seized evidence, and its statement that "a guilty plea waives all defects that go to whether the government can actually prove its case”. I would hold, consistent with the "complete defense” rationale of People v Alvin Johnson, 396 Mich 424, 444; 240 NW2d 729 (1976), that defendant’s nolo plea in the present case did not waive his right to challenge the legality of the search and seizure. I am not persuaded that a proper balance between the competing interests of the state and individual should necessarily entail the need of a roulette-type determination by defendant regarding the preservation of his claim for appeal. As in the instant case, where the state can readily establish its proofs through the admission of constitutionally defective evidence, the majority’s holding, in effect, forces defendant to pursue an expensive and futile course of litigation solely to preserve for our review an issue based upon denial of his pretrial motion to suppress. The trial itself resolves no genuinely contested disputes, but only results in a wasted procedure, with the real question to be decided upon the subsequent appeal. See People v Ricky Smith, 85 Mich App 32, 50; 270 NW2d 697 (1978) (Cavanagh, P.J., concurring in part and dissenting in part). In my opinion, a rule which compels the defendant to go to trial where he might otherwise have pled guilty subject to limited review of only the constitutional issue (as all other issues are waived) results in judicial inefficiency and unfairly burdens defendant’s ability to challenge the power of the state to prove its case against him.

A contrary result, of course, would produce a judicial trade-off in workload, with the additional appellate work balanced against the decrease of improvident proceedings at the trial level. However, I find an approach which concerns itself with substantive issues as opposed to the useless process of an additional trial a more preferable alternative.

In conclusion I would note that the policy questions at issue here are similar to those involving the use of qualified quilty pleas where the bargain struck between defendant and prosecutor expressly reserves defendant’s right to appeal the constitutional claim. The use of these pleas has recently been sanctioned in Michigan, People v Ricky Smith, supra, and also recommended by the American Bar Association, ABA Project on Standards for Criminal Justice, Standards Relating to Criminal Appeals, § 1.3(a)(iii), Comment c, (Approved Draft, 1970).

       The concurring opinion would hold that a guilty plea does not waive a defendant’s right to challenge his conviction on the basis of illegally seized evidence. This is done by analogizing the present case with the situation where a qualified guilty plea is entered. See People v Ricky Smith, 85 Mich App 32, 50; 270 NW2d 697 (1978) (Cavanagh, P.J., concurring and dissenting). The problem with this analogy is that the present case was an unqualified plea, not a qualified plea. The concurring opinion would eliminate the difference between the two types of pleas, by allowing Fourth Amendment issues to be preserved in every case, thus making every plea a qualified plea. It would seem that if this Court is going to recognize the doctrine of a qualified plea, then there ought to be a distinction between a qualified plea and an unqualified plea, or else this Court has created a distinction without a difference. Since this Court has recognized qualified pleas, the concurring opinion’s contention would be much different if defendant had tendered such a plea; since he did not, however, the policy reasons behind allowing qualified pleas are not applicable to the present case, and there is no reason to transform defendant’s unqualified plea into a qualified plea. For this reason, as well as the reasons stated in the body of this opinion, defendant’s guilty plea waived the alleged defect.

       "Certainly it is true that those rights which might provide a complete defense to a criminal prosecution, those which undercut the state’s interest in punishing the defendant, or the state’s authority or ability to proceed with the trial may never be waived by guilty plea. These rights are similar to the jurisdictional defenses in that their effect is that there should have been no trial at all. The test, although grounded in the constitution, is therefore a practical one. Thus, the defense of double jeopardy, those grounded in the due process clause, those relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally-obtained evidence without which the people could not proceed are other examples.” Alvin Johnson at 444. (Footnotes omitted; emphasis added.)


source: Caselaw Access Project

author: Per Curiam:. R. M. Maher, J.

license: Public Domain

text:
    PEOPLE v CHAMBLIS
    Docket No. 78-943.
    Submitted October 5, 1978, at Escanaba.
    Decided December 8, 1978.
    Alonzo Chamblis was convicted, on his plea of guilty, of assault with intent to rob being armed and possession of a firearm in the commission of or attempted commission of a felony in the Recorder’s Court for the City of Detroit, Robert L. Evans, J. Defendant appeals claiming double jeopardy. Held:

    The two convictions violated the defendant’s guarantee against double jeopardy since the evidence needed to prove each element of the assault with intent to rob being armed charge was the identical evidence necessary to prove the felony-firearm charge. Because the felony-firearm conviction cannot stand, the punishment prescribed by the statute cannot be imposed for commission of the underlying felony.
    The conviction for assault with intent to rob being armed is affirmed. The conviction for the felony-firearm offense is vacated.
    R. M. Maher, J., concurred in the reversal of the defendant’s felony-firearm conviction but he would hold that conviction for both felony-firearm and the underlying felony is in all cases a violation of the constitutional provision against double jeopardy.
    Opinion of the Court
    1. Criminal Law — Felony Firearm — Assault with Intent to Rob Being Armed — Double Punishment.
    A defendant’s conviction for violation of the felony-firearm statute, arising from an assault with intent to rob being armed, constitutes double punishment where the evidence to prove each element of the assault with intent to rob being armed charge is the identical evidence necessary to prove the felony-firearm charge.
    References for Points in Headnotes

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

      2. Criminal Law — Assault With Intent to Rob Being Armed — Felony-Firearm — Possession of Firearm.
    A defendant may not be convicted of and doubly punished for assault with intent to rob being armed and violation of the felony-firearm statute arising out of the assault where the possession of the firearm was a necessary prerequisite to the conviction of the assault.
    Concurrence by R. M. Maher, J.
    3. Criminal Law — Felony-Firearm — Underlying Felonies — Necessarily Included Offenses — Constitutional Law — Double Jeopardy.

      The underlying felony is always a necessarily lesser included offense of felony-ñrearm, regardless of whether or not the ñrearm was used in the commission of the underlying felony; conviction of both felony-ñrearm and the underlying felony is in all cases a violation of the constitutional provision against double jeopardy.

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

      Mosley & Monroe, P.C., for defendant.
    Before: J. H. Gillis, P.J., and D. E. Holbrook and R. M. Maher, JJ.
   Per Curiam:.

On November 8, 1977, defendant pled guilty to the crime of assault with intent to rob being armed, MCL 750.89; MSA 28.284, and possession of a firearm in commission of or attempted commission of a felony, MCL 750.227b; MSA 28.424(2).

Defendant raises two issues for our consideration. We find no error in the first issue.

On the second issue, defendant alleges that to convict defendant of each of these offenses violates principles of double jeopardy. We agree. People v Moore, 87 Mich App 475; 275 NW2d 19 (1978) (J. H. Gillis, P.J., dissenting), People v Stringer, 87 Mich App 481; 275 NW2d 25 (1978) (J. H. Gillis, P.J., dissenting).

We wish to call to the attention of the litigants, the bench and bar that in this opinion we do not rule on the constitutionality of the felony-firearm act itself, but, rather, hold that the double jeopardy provision of the Michigan Constitution and the Constitution of the United States prevents application of the act under the facts of this case. We leave to a later date the issue of the constitutionality of the felony-firearm act when the underlying felony is not firearm related, such as a violation of the controlled substances act or the criminal sexual conduct act.

The conviction for assault with intent to rob being armed is affirmed. The conviction for possession of a firearm in commission of or attempted commission of a felony is vacated.

R. M. Maher, J.

(concurring). I concur in the reversal of the defendant’s conviction, but I would hold that conviction of both felony-firearm and the underlying felony is in all cases a violation of the constitutional provision against double jeopardy, People v Berry, 85 Mich App 764; 272 NW2d 604 (1978), Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727; 272 NW2d 587 (1978).


author: Per Curiam.

text:
    PEOPLE v OCHKO
    Docket No. 78-419.
    Submitted November 21, 1978, at Detroit.
    Decided February 9, 1979.
    Daniel B. Ochko was convicted of first-degree felony murder and of conspiracy to commit armed robbery, Macomb Circuit Court, Walter P. Cynar, J. Defendant appeals, alleging that the testimony of the defendant’s accomplices and coconspirators should not have been allowed absent previous independent evidence of the corpus delicti of the crimes. Held:

    The rule which prohibits establishment of the corpus delicti by reliance upon extrajudicial admissions or confessions of a defendant or of an accomplice does not extend to in-court testimony of accomplices to establish any part of the corpus delicti from their own personal knowledge. The accomplice and coconspirator testimony was admissible because it concerned the witnesses’ own and the defendant’s participation in the offense and did not relate to any out-of-court confessions or admissions of the persons involved.
    Affirmed.
    1. Criminal Law — Corpus Delicti — Extrajudicial Admissions.
    Extrajudicial admissions or confessions of a defendant or an accomplice, standing alone, may not be used to establish the corpus delicti of a charged crime.
    2. Criminal Law — Accomplices — Testimony of Accomplices.
    A defendant may be convicted solely on the uncorroborated testimony of an accomplice.
    3. Criminal Law — Evidence — Testimony of Accomplices — Corpus Delicti.
    In-court testimony of a defendant’s accomplices and coconspirators was admissible to show the corpus delicti of the charges against the defendant where that testimony concerned their own and the defendant’s participation in the offenses and did not relate to any out-of-court confessions or admissions of the persons involved.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence § 530.
    30 Am Jur 2d, Evidence §§ 1136-1138, 1142.
    Comment Note: Corroboration of extrajudicial confession or admission. 45 ALR2d 1316.

       30 Am Jur 2d, Evidence § 1151.

       30 Am Jur 2d, Evidence §§ 1151,1153,1157.

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

      Wesley J. Roberts, for defendant on appeal.
    Before: D. C. Riley, P.J., and Bronson and T. Gillespie, JJ.

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

   Per Curiam.

Defendant appeals from his conviction of one count of first-degree felony murder, MCL 750.316; MSA 28.548, and one count of conspiracy to commit armed robbery. MCL 750.157a; MSA 28.354(1) and MCL 750.529; MSA 28.797.

The convictions arose out of a prior agreement by defendant and four others to loot the home of one Richard Blohm. Blohm was killed at the front door by a shotgun blast fired by the defendant, who then fled the scene together with his cohorts.

Proof of the conspiracy and the attempted armed robbery out of which the murder conviction arose was supplied entirely by the in-court testimony of the coconspirators and accomplices. Defendant alleges in his appeal that the testimony of these witnesses should not have been allowed absent previous independent evidence of the corpus delicti of the crimes.

Because of their perceived unreliability, the extrajudicial admissions or confessions of a defendant, standing alone, may not be used to establish the corpus delicti of a charged crime. People v Kirby, 223 Mich 440; 194 NW 142 (1923), People v Ranney, 153 Mich 293; 116 NW 999 (1908). In People v Barron, 381 Mich 421, 424; 163 NW2d 291 (1968), the Michigan Supreme Court expanded this rule to encompass the out-of-court admissions or confessions of accomplices. Defendant maintains, however, that Barron further prohibited the in-court testimony of accomplices to establish from their own personal knowledge any part of the corpus delicti.

Barron involved the breaking and entering of a dry cleaning establishment. The corpus delicti of the alleged offense required that the breaking and entering occur in the nighttime. Employees of the store were unable to establish that the crime took place at night; however, that element was shown through the testimony of defendant’s accomplice. The Court articulated its distension of the corpus delicti rule, supra, but in disposing of the case held that:

"The corpus delicti was adequately established before the admission of the testimony of the admitted accomplice. That testimony was therefore properly admitted. We find no error.” People v Barron, supra, at 427.

The difficulty in interpreting Barron lies in the fact that the rule does not strictly fit the case presented. While the Court announced a principle prohibiting the extrajudicial admissions of an accomplice for corpus delicti purposes, the statements made by the accomplice in that case were made in court. Further, the holding implied by the Court’s disposition of the case, that in-court admissions of accomplices are also subject to the corpus delicti rule, is itself dicta and unnecessary to the decision because of the Court’s finding that the corpus delicti was already established independent of the contested in-court declarations.

The few cases subsequently addressing Barron have yielded divergent interpretations. We view that decision as a straightforward extension of the traditional rule concerning the establishment of the corpus delicti by a defendant’s extrajudicial statements, a rule which never purported to exclude statements made by the defendant in court on the witness stand. See e.g., People v Kirby, supra, at 446. In doing so we emphasize the longstanding rule in Michigan that a defendant may be convicted solely by the uncorroborated testimony of an accomplice. People v DeLano, 318 Mich 557, 567-568; 28 NW2d 909 (1947), People v Zesk, 309 Mich 129, 132; 14 NW2d 808 (1944), People v Hare, 57 Mich 505; 24 NW 843 (1885), People v Jenness, 5 Mich 305, 330 (1858), People v Potts, 44 Mich App 722, 731; 205 NW2d 864 (1973), lv den 389 Mich 801 (1973), People v Jackson, 37 Mich App 570, 576; 195 NW2d 71 (1972), People v Burbridge, 23 Mich App 33; 178 NW2d 92 (1970), People v Billings, 19 Mich App 348, 350; 172 NW2d 494 (1969), 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), §488, p 600. Such evidence has been viewed as a question of credibility, not admissibility. Logically, therefore, conviction through the uncorroborated, in-court testimony of an accomplice from his own personal knowledge would necessarily embody the concurrent establishment of the corpus delicti. Further, the rationale underlying the exclusion of extrajudicial declarations of defendants and co-participants as singular proof of the corpus delicti does not support a similar repudiation of in-court testimony of defendants or accomplices originating from the witness stand and subject to cross-examination. We are left, then, with the firm conviction that had Barron, (which explicitly delineated its expansion of the corpus delicti rule to extrajudicial confessions and admissions of accomplices) intended to propagate an equally fundamental change in the law by proscribing in-court testimony of an accomplice not comprised of any out-of-court statements made by the parties to the crime, it would not have treated the issue (nor prior Michigan decisions implying otherwise) with such cursory observance. We hold that since substantially all of the testimony of defendant’s accomplices and co-conspirators in the case at bar related not to any out-of-court confessions or admissions of those involved in the criminal transaction, but rather concerned their own and defendant’s participation in the offense, it was properly admissible to show the corpus delicti of the felony-murder and conspiracy charges. We find no error.

A careful review of the record reveals that the other issues raised by the defendant are clearly without merit.

Affirmed.

       "The corpus delicti rule reflects an uneasy feeling based on experience that persons who attribute statements to accused persons are often not trustworthy witnesses and that confessions are sometimes obtained under circumstances which make them unreliable.” People v Allen, 39 Mich App 483, 504; 197 NW2d 874 (1972) (Levin, J. dissenting), rev’d 390 Mich 383; 212 NW2d 21 (1973).

        Accord, People v Randall, 42 Mich App 187, 190; 201 NW2d 292 (1972):
      "There are several reasons for requiring that the corpus delicti of a crime be established without resort to a defendant’s extrajudicial admissions. Some of these are a judicial distrust of confessions, a desire to avoid convicting a man of a crime that has not been committed, and perhaps a feeling that it is not sporting to convict a man solely out of his mouth.”

       It is unclear from the decision whether the testimony included extrajudicial confessions or admissions of the defendant or accomplice himself, or whether it only involved the accomplices or defendant’s participation in the transaction.

       The Supreme Court’s determination that the corpus delicti had been proven independently made it unnecessary for the Court to ever reach the issue of the accomplice’s infra-judicial testimony. The disarrangement of the Barron decision apparently originated with the disposition of the issue by the parties in their briefs. Both sides framed the question in terms of an accomplice testifying as to the corpus delicti. However, defendant-appellant premised his argument on decisions holding that extrajudicial admissions of a party or accomplice are not admissible to prove the corpus delicti, while plaintiff-appellee principally asserted that the corpus delicti had been proven independently of the accomplice’s testimony.

        People v Scotts, 80 Mich App 1; 263 NW2d 272 (1977), People v Love, 43 Mich App 608; 204 NW2d 714 (1972), Saksey’s Lounge Inc v Liquor Control Comm, 29 Mich App 656; 185 NW2d 840 (1971).

        Barron’s statement that "when properly admitted after the corpus delicti has been established, a jury may convict upon the uncorroborated evidence of a professed accomplice”, 381 Mich at 424-425, is troubling. Such an assertion appears unsupported both by the Court’s lone citation of authority, People v Jenness, 5 Mich 305 (1858), and Michigan law prior to the Barron decision. See cases designated in text.

        See note 1, supra.


text:
    PIPPER v DiMUSTO
    Docket Nos. 78-602, 78-1013.
    Submitted December 11, 1978, at Detroit.
    Decided February 13, 1979.
    Defendants, Dr. J. C. DiMusto and St. Joseph’s Hospital of Mount Clemens, were sued by plaintiff, Denise Pipper, in an action alleging medical malpractice in the diagnosis and treatment of her ectopic pregnancy. At the time she was admitted to the hospital she was complaining of uterine bleeding and abdominal pain. Upon admission plaintiff executed an arbitration agreement authorized by the Malpractice Arbitration Act. The Macomb Circuit Court, Walter P. Cynar, J., granted accelerated judgments in favor of both defendants. Plaintiff appeals. Held:

    The allegation that, at the time of executing the arbitration agreement, plaintiff was suffering uterine bleeding and abdominal pain creates a question of fact as to whether she was receiving emergency health care or treatment so as to vitiate the agreement pursuant to the statute.
    Reversed and remanded.
    Statutes — Arbitration — Medical Malpractice — Question op Fact — Emergency Health Care or Treatment.
    The statute authorizing an arbitration agreement between a patient and a hospital requires that a person receiving emergency health care or treatment must be offered the arbitration alternative after the emergency care or treatment is completed; an allegation that a patient executed an arbitration agreement at a time when she was suffering uterine bleeding and abdominal pain raises a question of fact whether she was a person receiving emergency health care or treatment (MCL 600.5042[1]; MSA 27A.5042[1]).
    References for Points in Headnote
    40 Am Jur 2d, Hospitals and Asylums §§ 16, 44.
    61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 160, 198.

      Lopatin, Miller, Bindes, Freedman & Bluestone (by Michael Gagleard), for plaintiff.

      Sullivan, Ranger, Ward & Bone, for St. Joseph’s Hospital.

      Schureman, Frakes, Glass & Wulfmeier (by Robert A. Obringer), for defendant DiMusto.
    Amicus Curiae: Nederlander, Dodge & Mc-Cauley, P.C., for the Physicians Crisis Committee.
    Before: Danhof, C.J., and R. M. Maher and D. C. Riley, JJ.
   Per Curiam.

Plaintiff commenced this medical malpractice action alleging that Dr. J. C. DiMusto, a gynecologist and obstetrician at St. Joseph’s Hospital of Mount Clemens, failed to properly diagnose and treat plaintiffs condition which was ultimately determined to be an ectopic pregnancy.

Defendant hospital moved for accelerated judgment under GCR 1963, 116.1(2), asserting that plaintiff, on the date of her admission to the hospital, May 3, 1976, executed an arbitration agreement pursuant to the Malpractice Arbitration Act, MCL 600.5040 et seq.; MSA 27A.5040 et seq. The hospital further alleged that because plaintiff had made no demand for arbitration nor had timely revoked the arbitration agreement, the court lacked subject matter jurisdiction to decide the suit.

In answer to the motion, plaintiff contended, inter alia, that the agreement was vitiated because at the time it was signed she was experiencing uterine bleeding and abdominal pain. Plaintiff also responded with a broad scale attack upon the constitutionality of the Malpractice Arbitration Act, claiming that it denied her due process of law by requiring that one member of the three-member arbitration panel be a doctor, who, presumptively, would be biased in favor of the defendants.

A hearing on defendant hospital’s motion for accelerated judgment was held, and on August 30, 1977, the trial court entered a written opinion finding the arbitration agreement valid, upholding the act as constitutional, and granting the hospital’s motion. The motion of defendant Dr. DiMusto for accelerated judgment was also subsequently allowed. From both decisions plaintiff appeals as of right.

We need not address the constitutional issue presented because of our determination that the lower court prematurely granted accelerated judgment.

MCL 600.5042(1); MSA 27A.5042(1) provides:

"A person who receives health care in a hospital may execute an agreement to arbitrate a dispute, controversy, or issue arising out of health care or treatment rendered by the hospital. A person receiving emergency health care or treatment may be offered the option to arbitrate but shall be offered the option after the emergency care or treatment is completed.” (Emphasis supplied.)

In an affidavit attached to her answer to the motion for accelerated judgment, plaintiff stated:

"That at the time I was admitted into St. Joseph Hospital of Mt. Clemens, on or about May 3, 1976,1 was suffering from prolonged uterine bleeding and had extreme amounts of abdominal pain.”

Therefore, the validity of the arbitration agreement was contingent upon whether plaintiffs hospital entrance was governed by the statute above.

We hold that plaintiffs affidavit sufficiently ereated a disputed question of fact as to whether she was "a person receiving emergency health care or treatment” within the meaning of the statute, and whether the hospital offered her the option to arbitrate after the emergency care or treatment was completed. Although the lower court ruled the agreement valid, there was no trial or evidentiary hearing held on this prefatory question. See GCR 1963, 116.3. If applicable in the case at bar, the emergency exception to the act would render nugatory plaintiff’s arbitration agreement.

Accordingly, we reverse and remand for the appropriate inquiry. In doing so we vacate the trial judge’s constitutional ruling. In the event plaintiff does not meet the conditions of the emergency exception, she may still challenge the statute’s constitutionality. See American Motorists Ins Co v Llanes, 396 Mich 113, 114-115; 240 NW2d 203 (1976), and cases cited therein.

Reversed and remanded. We retain no further jurisdiction. Costs to abide the final outcome.


author: Bashara, J.

text:
    HANEY v BENDIX CORPORATION
    Docket No. 77-4530.
    Submitted December 21, 1978, at Detroit.
    Decided March 6, 1979.
    Paul Haney and Maxine Haney brought an action against Bendix Corporation, Thiokol Corporation, H. K. Porter Company, Inc., and World Bestos, Inc., for damages. Plaintiff Paul Haney alleges that World Bestos supplied his employer with asbestos products and that he contracted asbestosis resulting from inhalation of asbestos fibers. World Bestos moved for summary judgment on the ground that it was a transferee corporation which acquired the World Bestos organization after Haney allegedly was injured, and was, therefore, not liable. The motion was denied, Wayne Circuit Court, James Montante, J., and World Bestos appeals by leave granted. Held:

    The test for determination of the liability of a successor corporation is the continuity of the enterprise. In this case the World Bestos enterprise was essentially a continuation of an established business. Because continuity of the enterprise was shown, the motion for summary judgment was properly denied. Affirmed.
    1. Corporations — Torts — Successor Corporations — Continuity of Enterprise.
    A purchaser of corporate assets for cash, that is, a successor corporation, may be held liable for torts committed by the seller corporation where the totality of the transaction demonstrates a basic continuity of the enterprise.
    2. Corporations — Torts — Successor Corporations — Continuity of Enterprise.
    Guidelines for use in determining whether sufficient continuity exists for the imposition of tort liability upon a successor corporation include: (1) whether there is a continuation of the enterprise of the seller corporation, including management, personnel, physical location, assets, and general business operations; (2) whether the seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as possible; and (3) whether the purchasing corporation assumes those liabilities and obligations of the seller ordinarily necessary for the continuation of normal business operations of the seller corporation.

      References for Points in Headnotes

       19 Am Jur 2d, Corporations § 1427 et seq.

      Goodman, Eden, Millender & Bedrosian (by Robert A. Koory), for plaintiffs.

      Butzel, Long, Gust, Klein & Van Zile (by Delmer C. Gowing, III, and D. Stewart Green), for defendant World Bestos, Inc.
    Before: M. F. Cavanagh, P.J., and Bashara and Allen, JJ.
   Bashara, J.

Defendant, World Bestos, Inc., appeals from a denial of its motion for summary judgment. Plaintiffs allege that defendant manufactured and supplied Kelsey-Hayes with brake linings which contained asbestos fibers. Plaintiff Paul Haney claims inhalation of these fibers during his employment with Kelsey-Hayes from 1952-1973 resulted in his contracting asbestosis for which he now seeks compensation from the defendant.

Defendant moved for summary judgment on the grounds that as a mere transferee which acquired World Bestos after the plaintiff’s employment with Kelsey-Hayes had terminated and after the alleged injury is claimed to have occurred, it was a corporate stranger to the manufacturer and therefore not liable.

A brief background of the World Bestos Corporation will help clarify the legal issue presented here. World Bestos was acquired by Firestone Tire & Rubber Co. in 1933-1934. It was incorporated in 1938 for the manufacture and sale of asbestos parts. In 1968, it became a division of Firestone, and in 1975, defendant entered into an agreement to take control of World Bestos.

"New” World Bestos was incorporated to receive the assets of "old” World Bestos and to continue the manufacture and sale of asbestos products. As part of the agreement, defendant took over the entire plant facilities, equipment and machinery, inventory and patents of "old” World Bestos.

Approximately 90% of the production force, 90% of the sales force and 50% of management remained with "new” World Bestos, which continued the contracts necessary for the daily operation of the business and filled customer orders outstanding as of the date of the agreement. Defendant also received an assignment of Firestone’s contractual rights. The asbestos products division of Firestone was then dissolved.

This case necessitates a determination of the scope of the products liability doctrine enunciated by the Michigan Supreme Court in Turner v Bituminous Casualty Co, 397 Mich 406; 244 NW2d 873 (1976).

Defendant argues that Turner requires the transferor corporation be defunct before liability for defective products can be extended to the transferee corporation.

Plaintiff claims liability attaches regardless of the status of the original corporation, the existence of continuity being the basis for successor liability.

The case at bar and Turner are factually analogous. However, in Turner, the assets of the manufacturer were transferred to the successor and the original company completely dissolved prior to the injury.

The Supreme Court opinion in Turner, based on tenets of tort liability, found a purchaser of corporate assets for cash liable where the totality of the transaction demonstrated a basic continuity of the enterprise.

As the Court stated:

"Under such circumstances to say Old Sheridan is a stranger to New Sheridan, and vice versa, is to honor form over substance. The natural purpose of New Sheridan was to incorporate Old Sheridan into its system with as much the same structure and operation as possible. Continuity is the purpose, continuity is the watchword, continuity is the fact.” Turner at 426. (Emphasis supplied.)

In setting guidelines to establish whether continuity exists, the Court adopted the first, third, and fourth criteria of the stated requirements of a de facto merger as set forth in Shannon v Samuel Langston Co, 379 F Supp 797, 801 (WD Mich, 1974):

"(1) There is a continuation of the enterprise of the seller corporation, so that there is a continuity of management, personnel, physical location, assets, and general business operations.
"(3) The seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible.
"(4) The purchasing corporation assumes those liabilities and obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller corporation.”

We do not interpret Turner as standing for the proposition that plaintiff establish a de facto merger before successor liability attaches. Rather the stated requirements are only guidelines.

The availability of the transferor corporation is simply a factor in determining continuity. It is not an independent prerequisite to the imposition of liability. Continuity and dissolution may be the prerequisites when a de facto merger is involved. When a sale of assets for cash is involved, continuity alone is the test.

Successor corporation liability was established for a larger purpose than to simply allow consumer recovery in the singular case where there is no alternative source.

The recent case of Trimper v Bruno-Sherman Corp, 436 F Supp 349 (ED Mich, 1977), supports our interpretation. There the court, using a vicarious liability analysis, found the successor corporation liable even though the predecessor corporation was still in existence. In analyzing Turner, Judge Churchill noted:

"The unavailability of T. W. & C. B. Sheridan Company as a collectible defendant provided the necessity and incentive for imposing vicarious liability on the original maker’s successor in economic function, but it did not provide a rational legal basis for such liability. The Michigan supreme court found the rational legal basis for vicarious liability in Harris in estoppel by reason of the voluntary creation of the image of continuity of the manufacturing enterprise, and, perhaps by inference, in the implied reliance thereon in the users of the offending machine.” Trimper at 351.

Determinations of successor liability based on continuity and judged by the specific stated criteria in Turner will, in the long run, assure uniform extension of liability thus avoiding surprise and conjecture.

Affirmed, costs to plaintiffs.


author: V. J. Brennan, J. J. H. Gillis,

text:
    PEOPLE v NOEL
    Docket Nos. 77-4987, 77-5233.
    Submitted August 31, 1978, at Detroit.
    Decided March 6, 1979.
    Defendant, Charles Noel, was convicted in Detroit Recorder’s Court, John Patrick O’Brien, J., on his pleas of guilty, of armed robbery, assault with intent to rob, and two counts of possession of a firearm in the commission of a felony. Defendant appeals. Held:

    I. The felony-firearm statute should be viewed and upheld as a sentencing enhancement and sentence augmenting measure in light of the manifest intent of the Legislature in enacting the statute; the portion of the statute which delineates possession of a firearm during the commission of a felony as a separate and distinct offense should be construed as being inoperable.
    Affirmed in part, reversed in part.
    J. H. Gillis, P.J., dissented in part. He would hold that the felony-firearm statute creates a separate offense of possession of a firearm during the commission of a felony and that the constitutional prohibition against double jeopardy proscribes a multiple punishment as well as a multiple conviction for the same offense. He would set aside both felony-firearm convictions and the sentences imposed as a result of them.
    Opinion of the Court
    1. Appeal and Error — Court of Appeals — Issues Not Raised.
    The Court of Appeals has limited power to raise questions on its own.
    2. Criminal Law — Felony-Firearm Statute — Statutory Construction — Legislative Intent — Sentence Augmenting Statute — Statutes.
    The felony-firearm statute should be viewed and upheld as a sentencing enhancement and sentence augmenting measure in light of the manifest intent of the Legislature in enacting the statute; the portion of the statute which delineates possession of a firearm during the commission of a felony as a separate and distinct offense should be construed as being inoperable (MCL 750.227b; MSA 28.424[2]).

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 900.

       21 Am Jur 2d, Criminal Law § 189.

      Partial Concurrence, Partial Dissent by J. H. Gillis, P.J.
    3. Criminal Law — Felony-Firearm Statute — Legislative Intent — Separate and Distinct Offense — Double Jeopardy.

      The Legislature in enacting the felony-ñrearm statute clearly intended to create an offense, for the possession of a ñrearm in the commission of a felony, separate and distinct from the underlying felony and to impose a separate punishment upon a person guilty of this offense; therefore, since a defendant’s separate conviction under the felony-ñrearm statute cannot stand, because of double jeopardy considerations, the additional punishment prescribed by the statute for its violation cannot be imposed for violation of the underlying felony.

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

      Alfred H. Varga and Robert L. Ziolkowski, for defendant on appeal.
    Before: J. H. Gillis, P.J., and V. J. Brennan and Bashara, JJ.
   V. J. Brennan, J.

On August 26, 1977, defendant, Charles Noel, pled guilty in Recorder’s Court case #77-05858 to armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony (armed robbery), MCL 750.227b; MSA 28.424(2). The defendant also pled guilty in Recorder’s Court case #77-05788 to assault with intent to rob being armed, MCL 750.89; MSA 28.284, and possession of a firearm in the commission of a felony.

In the former proceeding defendant was sentenced to 2 to 15 years on the robbery and 2 years on the felony-firearm charge, said terms to run consecutively. In the latter proceeding defendant was sentenced to 2 to 15 years on the assault, said term to run concurrently with the robbery sentence, and 5 years on the felony-firearm charge, said term to run consecutively with the aforementioned 2-year term. The sentencing court set forth the defendant’s net sentence as 9 to 15 years. The defendant appeals by right. GCR 1963, 806.1.

The defendant raises two issues on appeal, neither of which warrants lengthy discussion. The defendant’s contention that the element of larceny from the person was not established at the plea proceeding is without merit. The record clearly shows that the defendant took money from the complainant at gunpoint. Furthermore, a review of the record and docket entries indicates no error in sentencing.

This brings us to a problem not raised by the defendant. Generally we do not address issues not raised by the parties on appeal. However, our function is to dispense justice, and we are given the limited power to raise questions on our own. Dearborn v Bacila, 353 Mich 99, 118; 90 NW2d 863 (1958), Vermeylen v Knight Investment Corp, 73 Mich App 632, 642; 252 NW2d 574 (1977).

We have held in People v Blount, 87 Mich App 501; 275 NW2d 21 (1978), that the rule against double jeopardy prohibits separate convictions on both felony firearm and the underlying felony. In accordance with that opinion we set aside the two convictions for felony firearm. However the defendant’s sentence as an augmentation of the penalty for the underlying felony is upheld.

Reversed in part; affirmed in part.

Bashara, J., concurred.

J. H. Gillis,

(concurring in part, dissenting in part). I agree with Judge Brennan’s opinion except for the last paragraph. I agree that the double jeopardy provisions of both the Michigan and United States Constitutions prohibit separate convictions on both the felony firearm and the underlying felony and I would set aside the two convictions for felony firearm and the penalty imposed as a result thereof. See my dissenting opinion in People v Moore, 87 Mich App 475, 480; 275 NW2d 19 (1978).


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

text:
    PEOPLE v BREWER
    Docket No. 78-175.
    Submitted December 6, 1978, at Lansing.
    Decided March 6, 1979.
    Leave to appeal applied for.
    Carey Brewer was convicted of armed robbery, Recorder’s Court of Detroit, Justin C. Ravitz, J. The defendant appeals, alleging that he was denied effective assistance of counsel due to the fact that, at the time of his trial, his attorney was under suspension from the practice of law for failure to pay state bar dues. Held:

    The suspension of the attorney for failure to pay state bar dues does not automatically necessitate the reversal of the defendant’s conviction. However, the failure of an attorney to pay his state bar dues is strong evidence that the attorney is no longer sufficiently interested in the practice of law to adequately defend his client’s interests. Therefore, this matter is remanded for an evidentiary hearing to determine: 1) whether the defendant’s allegations with respect to his attorney’s suspension from practice are accurate, and 2) whether the defendant received inadequate assistance of counsel under the test set forth by the Michigan Supreme Court.
    Remanded for further proceedings.
    Cynar, J., concurred in part and dissented in part. He agrees with the majority that the failure of defendant’s attorney to pay bar dues does not make out a per se case of ineffective assistance of counsel. However, he would hold that under the test set forth by the Michigan Supreme Court the defendant was not denied effective assistance of counsel. He would affirm.
    Opinion of the Court
    1. Attorney and Client — Bar Dues — Practice of Law — Statute — State Bar Rules.
    Payment of state bar dues is a prerequisite to the practice of law in Michigan; the state courts possess the authority to deny one who fails to pay his bar dues the right to practice law in Michigan (MCL 600.901 et seq.; MSA 27A.901 et seq., State Bar of Michigan, Rules 4[a], 4[b]).

      References for Points in Headnotes

       7 Am Jur 2d, Attorneys at Law §§ 7, 72.

       16 Am Jur 2d, Constitutional Law § 131.

       7 Am Jur 2d, Attorneys at Law § 110.
    21 Am Jur 2d, Criminal Law § 309.

      2. Attorney and Client — Bar Dues — Practice of Law.
    It is not unreasonable to assume that one of the purposes of the requirement that an attorney pay state bar dues as a prerequisite to the practice of law in Michigan is to eliminate those who, though trained in the law, are not interested in practicing the profession.
    3. Constitutional Law — Waiver.
    It is clearly established that the waiver of a constitutionally derived right must be intentional and, therefore, must be knowingly made.
    4. Constitutional Law — Criminal Law — Right to Counsel — Effective Assistance of Counsel — Suspended Attorney — Bar Dues.
    The constitutional guarantee of the right to effective assistance of counsel deserves the utmost protection; however, the fact that a criminal defendant’s retained attorney was suspended from practice, at the time of defendant’s trial, for failure to pay state bar dues does not automatically necessitate the reversal of the defendant’s conviction.
    Partial Concurrence and Partial Dissent by Cynar, J.
    5. Constitutional Law — Criminal Law — Right to Counsel — Effective Assistance of Counsel — Suspended Attorney.

      A defendant’s conviction should be affirmed in spite of his allegations on appeal that he was denied effective assistance of counsel where 1) the allegation is based on the alleged suspension of the defendant’s trial attorney from practice of law, at the time the attorney represented the defendant, for failure to pay state bar dues, 2) the defendant is unable to point to any speciffc conduct constituting ineffective assistance of counsel, and 3) there was no violation of the standard used to determine whether a defendant has been deprived of his right to effective assistance of counsel.

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

      Hemming & Bárrese, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P.J., and D. E. Holbrook and Cynar, JJ.
   D. E. Holbrook, J.

Defendant was found guilty of armed robbery, contrary to MCL 750.529; MSA 28.797, in a bench trial held in Detroit Recorder’s Court. The complaint on which defendant was arraigned alleged that, armed with a knife, the defendant robbed a pizza deliverer of approximately $130 in cash and one pizza. The complainant testified at defendant’s trial that he could smell alcohol on the defendant and that the defendant’s speech was slightly slurred at the time of the robbery. Additional testimony was offered in the defendant’s behalf tending to show inebriation and possible lack of the requisite specific intent. Evidence contradicting this alleged condition was offered by the prosecution, and the court, sitting as trier-of-fact, found that defendant did entertain the intent to permanently deprive the complainant of the subject items.

Defendant was sentenced to serve a 3-1/2 to 7 year prison term; he appeals of right, raising a single allegation of error. Defendant contends he was denied the effective assistance of counsel, a constitutional guarantee derived from US Const, Am VI and Am XIV and specifically recognized in Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799; 93 ALR2d 733 (1963), in that unknown to the defendant his retained counsel had been suspended from the practice of law in Michigan for failure to pay bar dues. While defendant relies primarily upon his attorney’s loss of status as evidence of a per se deprivation of his right to assistance of counsel, defendant also alleges rather generally that his attorney did not pursue the defendant’s intoxication defense with sufficient effort.

Defendant alleges that his retained attorney was declared ineligible to practice law in the State of Michigan on January 22, 1977, due to his failure to remit state bar association dues. Counsel subsequently appeared on the defendant’s behalf on two occasions during 1977. The defendant claims that counsel was not reinstated until December 15, 1977. The defendant’s allegations are neither supported nor contradicted by the existing record.

The governing legislation, MCL 600.901, et seq.; MSA 27A.901, et seq., and the appropriate Supreme Court promulgated rules concerning the State Bar of Michigan, rules 4(a) and 4(b), clearly provide that payment of state bar dues is a prerequisite to the practice of law in Michigan. There is little question that the courts of this state possess the authority to deny one who fails to pay his bar dues the right to practice law in Michigan. See Ayres v Hadaway, 303 Mich 589; 6 NW2d 905 (1942). Furthermore, we hold, as the fifth Federal circuit concluded in a similar case, that it is "not * * * unreasonable to assume that one of * * * [the dues-requirement] purposes was to eliminate those who, though trained in the law, were not interested in practicing the profession”. McKinzie v Ellis, 287 F2d 549, 551 (CA 5, 1961), cert den, 361 US 869; 80 S Ct 130; 4 L Ed 2d 108 (1959). This being the case, the allegations raised by the defendant require a bifurcated analysis: first, does the defendant’s retained attorney’s suspension from practice for failure to pay dues ipso facto establish that the defendant was denied the effective assistance of counsel; and second, if not, does the record below suggest that, in fact, counsel’s failure to pay dues evidenced that he no longer entertained sufficient interest in the practice of law to render the defendant adequate assistance of counsel.

In McKinzie, supra, the fifth circuit held that a defendant’s guilty plea entered upon the advice of court-appointed counsel must be reversed where it was later learned that counsel similarly had been dropped from membership in the Texas State Bar for nonpayment of dues. The facts of the instant case differ only in that defendant unknowingly retained a suspended attorney. This fact alone does not render defendant’s claim nugatory, since it is clearly established that the waiver of a constitutionally derived right must be intentional and therefore must be knowingly made. Johnson v Zerbst, 304 US 458; 58 S Ct 1019; 82 L Ed 1461 (1938), and People v Michael Brown, 72 Mich App 7; 248 NW2d 695 (1976).

The New York Supreme Court recently confronted a question similar to that faced by the fifth circuit in McKinzie. In People v Felder, 61 App Div 2d 309, 311; 402 NYS2d 411 (1978), a 3-2 decision, the New York court affirmed the convictions of three defendants who were represented by a "Layman masquerading as a lawyer”. The majority, relying on Harrington v California, 395 US 250; 89 S Ct 1726; 23 L Ed 2d 284 (1969), and other cases, held that since the defendants were adequately represented, any error in the case was harmless beyond a reasonable doubt, not requiring reversal. The dissent, noting that the defendants retained attorney "never completed law school, never passed a Bar examination and had never been admitted to practice in this or any other jurisdiction”, Felder, supra, at 317, adopted the following language from People v Cox, 12 Ill 2d 265, 269; 146 NE2d 19 (1957):

" 'We must agree with the defendant that the term "counsel”, as it is employed in the constitutional provisions relied upon means a duly licensed and qualified lawyer, and not an attorney in fact or a layman.’ ”

The dissent concluded at 318:

"I do not believe it is at all germane that this layman may have acted more or less capably than the most skilled lawyer. Surely, one need not expound upon the State’s concern in licensing the profession of law. Whether he did so expertly or inexpertly is totally irrelevant. In licensing, the admitting court or State assures and certifies that the licensee has met minimal standards of education and character promulgated and adhered to by his peers over the centuries.”

In People v Perez, 82 Cal App 3d 45; 147 Cal Rptr 34 (1978), a case involving the appointment of a supervised law student to represent the defendant in a felony prosecution, a unanimous panel of the California Court of Appeals concluded that the doctrine of harmless error had no application where inadequate assistance of counsel is alleged. The court, citing Gideon, supra, concluded, at 147 Cal Rptr 44, contrary to the decision reached by the majority in Felder, that "the denial of the right to counsel at any critical stage is reversible per se”. (Emphasis supplied.)

While we recognize that the constitutional guarantee of the right to effective assistance of counsel deserves the utmost protection, we disagree with the contention that defendant’s retained attorney’s suspension for failure to pay dues automatically necessitates the reversal of defendant’s conviction. The instant case is not a matter of a "layman masquerading as a lawyer”, Felder, supra, at 311; only a few months earlier defendant’s attorney was fully qualified to represent him. No aspersions have been cast upon defendant’s counsel’s character.

There remains, however, the concern shown by the Court in McKinzie over the implications, in terms of quality of representation, arising out of counsel’s having neglected to pay his annual dues. We hold, in accordance with the policy underlying the legislation and court rules above, that the failure of an attorney to remit his state bar dues is strong evidence that such attorney is no longer sufficiently interested in the practice of law to adequately defend his client’s interests. For this reason, we remand the instant matter for an evidentiary hearing in order that the following may be established: first, whether defendant’s allegations with respect to his attorney’s suspension from practice are accurate; second, whether the defendant received inadequate assistance of counsel under the test set forth in People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), and People v Foster, 77 Mich App 604; 259 NW2d 153 (1977).

Remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

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

Cynar, J.

(concurring in part, dissenting in part). I agree with the majority’s conclusion that the failure of defendant’s attorney to pay his bar dues does not make out a per se case of ineffective assistance of counsel.

However, I see no need for a remand in this case. My review of the trial record indicates that counsel did a fine job of representing defendant at trial. He objected to evidence, cross-examined witnesses and did a capable job of presenting an intoxication defense. Not surprisingly, on appeal, defendant is unable to point to any specific conduct constituting ineffective assistance of counsel.

Under these circumstances I believe a remand is unnecessary. No violation of the standard set forth in. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), occurred here. Therefore, I would affirm.


author: Cynar, J.

text:
    PEOPLE v GILBERT
    Docket No. 78-383.
    Submitted October 10, 1978, at Lansing.
    Decided March 6, 1979.
    Daniel C. Gilbert equipped his automobile with a radar detector. He was charged with equipping his automobile with a radio receiving set capable of receiving police signals. At a hearing on Gilbert’s motion to dismiss, the Troy Municipal Court concluded that radar detectors were in fact radio receiving devices, but dismissed the charge on the basis that the Legislature did not intend the statute under which Gilbert was charged to apply to radar detectors. The prosecutor appealed to Oakland Circuit Court. Robert L. Templin, J., vacated the dismissal and ordered the case remanded to municipal court for trial. Defendant appeals by leave granted, alleging that the phrase "radio receiving set” used in the statute should be interpreted so as to exclude radar detectors, that the statute does not apply to the radio frequency used by police radar, and that the statute is preempted by the provisions of the Federal Communications Act. Held:

    1. A radar detector is a "radio receiving set” which detects the presence of a certain frequency of radio waves, that used by police radar, and therefore a radar detector falls within the purview of the statute.
    2. The fact that the frequencies used by police radar have also been assigned by the Federal Communications Commission for certain uses other than police radar does not affect the applicability of the statute. The statute does not require that the frequencies be assigned exclusively to the police.
    3. The statute has not been preempted by Federal law, applying either of the two tests to be used in determining whether a state law has been preempted.

      References for Points in Headnotes

       73 Am Jur 2d, Statutes §§ 145, 146.

       73 Am Jur 2d, Statutes § 159.

       73 Am Jur 2d, Statutes §§ 293, 295.

       74 Am Jur 2d, Telecommunications § 147.

       74 Am Jur 2d, Telecommunications § 204.

       16 Am Jur 2d, Constitutional Law § 205.

       74 Am Jur 2d, Telecommunications § 148.

      Because the defendant was not put on notice that the prohibition of the statute extends to radar detectors, the charges against the defendant are dismissed.
    1. Statutes — Construction — Legislative Intent.
    The primary rule of statutory construction is to determine and implement the Legislative intent; in doing so it is not the function of the Court to rule upon the wisdom of a statute.
    2. Statutes — Construction — Statutory Purpose.
    Statutory language should be given a reasonable construction considering the purposes of the statute and the object sought to be accomplished.
    3. Statutes — Penal Statutes — Construction.
    The language of a penal statute should be construed according to the common and approved usage of the language, although such statutes are to be construed strictly.
    4. Words and Phrases — Radio — Radar.
    "Radio” is not limited in its meaning to voice communications, and a "radio receiving set” is a device capable of receiving the electric waves involved in a radio transmission.
    5. Statutes — Criminal Law — Radar Detectors.
    A radar detector is a "radio receiving set” which falls within the purview of the statute which prohibits the use in a vehicle of a radio receiving set that will receive signals sent on those frequencies allocated for police purposes (MCL 750.508; MSA 28.776).
    6. Criminal Law — Statutes — Radio Receivers — Frequency Allocations.
    The statute that prohibits use in a vehicle of a radio receiving set that receives signals on a frequency assigned to police does not require that those frequencies be assigned exclusively to the police; therefore, the fact that those frequencies are also allocated for other use does not affect the applicability of the statute (MCL 750.508; MSA 28.776).
    7. Statutes — Federal Law — State Law — Preemption — Tests for Determination.
    The tests to apply in determining whether state law has been preempted by Federal legislation are: (1) whether the area is one in which the scheme of regulation is so pervasive, the Federal interest so dominant, or the need for uniformity so great as to exclude state regulation altogether; and (2) if the area does not "inherently” require preemption, whether there 'can be found such actual conflict between the Federal and state schemes of regulation that both cannot stand, or whether there is evidence of a congressional design to preempt the field.
    8. Criminal Law ■— Statutes — Radio Receivers — Federal Preemption.
    The statute prohibiting use in a vehicle of a device to receive signals sent on frequencies assigned to police is not preempted by Federal legislation (MCL 750.508; MSA 28.776.)

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Michael J. Modelski, Assistant Prosecuting Attorney, for the people.

      Bacalis & Associates, P.C. (by Jesse R. Becalis and Christopher J. Wiggins), for defendant on appeal.
    Before: Danhof, C.J., and Bashara and Cynar, JJ.
   Cynar, J.

This case presents a question of first impression in this state. We are called upon to determine whether, under present Michigan law, one can be charged with a misdemeanor for the possession of a radar detector or "Fuzzbuster”.

On December 3, 1976, defendant’s car was stopped in Troy, Michigan, by a Troy police officer. The officer noticed that defendant’s car was equipped with a radar detector. Therefore, he charged defendant with equipping his car with a radio receiving set capable of receiving police signals, a violation of MCL 750.508; MSA 28.776.

On February 28, 1977, a hearing was held in Troy Municipal Court on a motion to dismiss which had been previously filed by defendant. After the taking of expert testimony concerning the operation of radar detectors, the municipal court judge dismissed the case, stating that the Legislature did not intend the statute to apply to radar detectors. However, he also concluded that radar detectors were in fact radio receiving devices.

The prosecutor subsequently appealed this decision to circuit court. On October 24, 1977, Oakland County Circuit Court Judge Robert L. Templin entered an order vacating the dismissal and remanding the case to municipal court for trial. Defendant now appeals from this order by leave granted April 8, 1978.

The crux of this case involves the scope and applicability of MCL 750.508; MSA 28.776. That statute states:

"Any person who shall equip a vehicle with a radio receiving set that will receive signals sent on frequencies assigned by the federal communications commission of the United States of America for police purposes, or use the same in this state unless such vehicle is used or owned by a peace officer or a bona fide amateur radio operator holding a conditional, general, advanced or extra class amateur license issued by the federal communications commission, without first securing a permit so to do from the commissioner of the Michigan state police upon such application as he may prescribe, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than 1 year or by a fine of not more than $500.00 or by both such fine and imprisonment in the discretion of the court.”

Appellant argues that the phrase "radio receiving set” should be interpreted so as to exclude radar detectors, since such devices pick up no voice communications. Appellee argues that the language of the statute is broad enough to include radar detector devices, which are merely a type of radio receiver.

Neither the statute nor the case law provide any clue as to the meaning of the phrase "radio receiving set”. Since the phrase is susceptible to several meanings, its applicability to radar detectors must be determined by reference to the canons of judicial construction. King v Director of Midland County Dep’t of Social Services, 73 Mich App 253, 258; 251 NW2d 270 (1977). The primary rule of statutory construction is to determine and implement the legislative intent. Williams v Secretary of State, 338 Mich 202, 207; 60 NW2d 910 (1953). In doing so, it is not our role to rule upon the wisdom of the statute. McKibbin v Corp & Securities Comm, 369 Mich 69, 81; 119 NW2d 557 (1963). The statutory language should be given a reasonable construction considering the purposes of the statute and the object sought to be accomplished. Shulevitz v Dep’t of Treasury, 78 Mich App 655, 659; 261 NW2d 31 (1977). Although penal statutes are to be strictly construed, People v Goodchild, 68 Mich App 226, 232; 242 NW2d 465 (1976), in so doing one should construe the language according to the "common and approved usage of the language”. MCL 8.3a; MSA 2.212(1). See also Baker v General Motors Corp, 74 Mich App 237, 248; 254 NW2d 45 (1977).

In determining the ordinary and common usage of a term, the Court has often made use of dictionary definitions. See for example Chrysler Corp v Washington, 52 Mich App 229, 234; 217 NW2d 66 (1974), and Baker v General Motors Corp, supra at 248. Webster's Third New International Dictionary (unabridged, 1966) defines the noun "radio” as:

"the transmission and reception of electric impulses or signals by means of electric waves without a connecting wire.”

One of the examples given is "radar”. Similarly, the adjective "radio” is defined as:

"of, relating to, employing, or operated by radiant energy esp. of electric waves.”

Thus, the primary dictionary definitions of "radio” do not limit its meaning to voice communications. Rather, the focus appears to be upon the "waves” involved in its transmission. A "radio receiving set” would appear to be a device capable of receiving these waves.

Considerable testimony was taken in this case regarding the operation and functioning of a radar detector. Edgar Schlops, the expert witness called by the prosecution, testified that the internal circuitry of a "Fuzzbuster” and a typical radio were very similar. Both have a component for picking up the signal. In a typical radio it is an antenna. In a "Fuzzbuster” it is called a "wave guide”. Both have a detector diode which transforms the signal to a different form and transistors which amplify the output. There are two major differences between a typical radio and a radar detector. Unlike a typical radio, a radar detector is fixed to a single frequency, that used for police radar units. Secondly, the output of the detector consists of a light or sonic alarm, as it is not equipped with speakers to reproduce music or voice.

On the basis of the above, we conclude that a radar detector is a radio receiving set for purposes of the statute. A radar detector picks up the same radio waves as does a conventional radio, except at a different frequency. Although the waves are not transformed to sound in the same manner as a typical radio, this function is not the distinctive, distinguishing feature of all radio receiving sets. We also note that the word "radar” is nothing more than an acronym for "radio detection and ranging”. State v Tomanelli, 153 Conn 365, 369; 216 A2d 625, 629 (1966), People v Nasella, 3 Misc 2d 418, 420; 155 NYS2d 463, 467 (1956). Furthermore, Webster’s Third New International Dictionary (unabridged, 1966) defines "radar” as:

"a radio device or system for locating an object by means of emitting radio signals * * *.” (Emphasis added.)

Thus, the common usage of the terms "radio” and "radar” indicates that radar is simply one type of radio device and that a radar detector is nothing more than a device which picks up the presence of a certain frequency of radio waves. As such, a radar detector is a "radio receiving set” and falls within the purview of the statute.

This conclusion is further buttressed by examining the ostensive purpose of the statute. As noted in People v Hall, 391 Mich 175, 189-190; 215 NW2d 166 (1974),

"* * * the fact that [penal] statutes are narrowly construed does not require rejection of that sense of the words which best harmonizes with the overall context of the statutes and the end purpose sought to be achieved by such legislation.”

See also People v Dempster, 396 Mich 700, 707; 242 NW2d 381 (1976).

The apparent purpose of MCL 750.508; MSA 28.776 is to enhance the efficient and effective execution of police functions. This is done by limiting the confidential use of certain radio frequencies to law enforcement personnel. In this manner, one contemplating a crime will be unaware of the movement of patrol vehicles and the absence or presence of police near the crime scene.

The purpose of the statute is further enhanced by construing it to apply to "Fuzzbusters”. The primary purpose of such devices is to detect the presence of police radar. As a general rule those persons using these devices are driving in violation of the speed laws. By using the devices to determine the presence of radar, such persons greatly improve their chances of avoiding apprehension. In passing a statute designed to prevent the monitoring of police movement, we do not believe the Legislature intended any exception for speeding motorists. By prohibiting the use of the "Fuzzbusters” more speed violaters will be apprehended and our streets made more safe.

Defendant next argues that the statute does not apply to the frequency used by police radar, as that frequency is not used exclusively for police purposes. The Federal Communications Commission has assigned the 10,500-10,550 megahertz frequency range for radar use. 47 CFR 2.105-2.106 (1977), 47 CFR 2.1 (1977). The same frequency range has also been assigned to the publice safety radio service, for the discharge of essential nonfederal government functions. See 47 CFR 89.1(b) (1977) and 47 CFR 89.101(h) (1977). Testimony below established that this frequency was also used for some low power burglar alarms. See- also 47 CFR 91.601-91.604 (1977). This, however, does not affect the applicability of the statute in this case. MCL 750.508; MSA 28.776 applies to "frequencies assigned by the federal communications commission of the United States of America for police purposes * * It does not require that such frequencies be assigned exclusively to the police. We believe the FCC regulations noted above establish that the frequency utilized by police radar has been assigned by the FCC "for police purposes”. Therefore, defendant’s argument in this regard is without merit.

Defendant finally contends that the Michigan statute is preempted by the provisions of the Federal Communications Act of 1934. There are two tests to apply in determining if state law has been preempted by Federal legislation. There are some areas where the scheme of regulation may be so pervasive, the Federal interest so dominant, or the need for uniformity so great as to exclude state regulation altogether. See Rice v Santa Fe Elevator Corp, 331 US 218, 230; 67 S Ct 1146; 91 L Ed 1447 (1947), and Florida Lime & Avocado Growers Inc v Paul, 373 US 132, 143-144; 83 S Ct 1210; 10 L Ed 2d 248 (1963).

However, in Head v New Mexico Board of Examiners in Optometry, 374 US 424, 431; 83 S Ct 1759; 10 L Ed 2d 983 (1963), the Court held that the Federal regulatory scheme was not so pervasive, the need for uniformity so strong or Federal interest so dominant as to prohibit the states from regulating the content of advertising broadcast over the airwaves. We believe a similar result is warranted here. Although the Federal scheme allocating frequencies to persons for transmission uses may be so pervasive as to occupy the field, Head, supra at 430, n. 6, the question of who may receive these frequencies has not been so addressed in the Federal scheme. Nor is the Federal interest in this subject so dominant or the need for uniformity so strong as to prohibit state regulations. On the contrary, the state interest in assuring that the police will be effective in maintaining the safety of the highways is consistent with and complementary to the Federal interest of lowering traffic speed to conserve energy. Although other states may not ban the possession of "Fuzzbusters”, this does not create any potential conflict requiring uniformity. Motorists from adjoining states should simply leave their "Fuzzbusters” behind.

Since this situation does not "inherently” require preemption, the Michigan statute must be upheld unless there is found

"such actual conflict between the two schemes of regulation that both cannot stand in the same area, [or] evidence of a congressional design to preempt the field.” Head, supra, at 430.

Defendant is unable to point out any actual conflict between the Federal and state scheme or of a congressional design to preempt the field. Those Federal provisions which authorize the FCC to issue licenses to operate a radio transmitter in no way conflict with the state prohibition upon the use of a species of radio receiver. Similarly, those portions of the Federal scheme providing for sanctions against licensed operators do not conflict with the state statute’s criminal penalty for performing a completely distinct act. Therefore, we hold that MCL 750.508; MSA 28.776 is not preempted by Federal legislation. In accord, Crenshaw v Commonwealth, — Va —; 245 SE2d 243, 245-246 (1978).

In conclusion, we construe the prohibition of MCL 750.508; MSA 28.776 to extend to radar detectors. We further hold that the subject matter of the statute has not been preempted by Federal legislation. However, we note that, up until today, a person of ordinary intelligence has not been put on notice that the use of such devices is forbidden. Defendant’s conduct was not malum in se; nor is this Court’s interpretation of the statute so obvious that it should have been forseen by defendant. As noted in People v Dempster, 396 Mich 700, 715-716; 242 NW2d 381 (1976):

"It is true that interpretations of statutory provisions by a court may add a clarifying gloss to otherwise unclear words, and thereby provide constructive notice to future defendants, but 'an unforseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law * * *’ and '* * * the effect is to deprive [the defendant] of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime.’ ”

Therefore we conclude that the charges against defendant should be dismissed.

This opinion serves to put all persons on notice that equipping one’s vehicle with a radar detector is prohibited under Michigan law. As of the date of release of this opinion those persons equipping their vehicle with a radar detector may be prosecuted under MCL 750.508; MSA 28.776.

For the reason stated in this opinion, the charges against defendant are dismissed.

       47 USC 151 et seq.

       We realize that defendant has not raised the due process argument in his brief or at oral argument. We grant defendant this relief pursuant to GCR 1963, 820.1(7) which permits this Court to "grant such relief, as the case may require * *


author: D. F. Walsh, J.

text:
      In re WALLIN ESTATE WALLIN v TORSON
    Docket No. 78-633.
    Submitted December 7, 1978, at Grand Rapids.
    Decided March 6, 1979.
    Elizabeth Wallin executed a will in 1941. She died in 1943 leaving a son, Franklin W. Wallin, and a daughter, Orcelia Wallin Torson. Orcelia adopted Thomas Wallin Torson in 1931 and died in 1976, leaving Thomas as her only surviving heir. In her will, Elizabeth Wallin provided for the disposition of Orcelia’s trust property by declaring' that upon her death the trustees were to pay the residue of the trust fund and its accumulations to her issue by right of representation and if Orcelia had no issue the trust fund was to be paid to her son Franklin W. Wallin or his issue. Thomas filed a petition in Ottawa Probate Court seeking construction of the will. Frederick T. Miles, J., determined that Thomas was included in the term issue as used in Elizabeth’s will and also ruled that a disclaimer of inheritance executed by Thomas was invalid. Franklin Wallin appealed the probate decision to Ottawa Circuit Court where Calvin L. Bosman, J., reversed the probate decision that Thomas was issue under the will. Judge Bosman did not rule on the validity of the disclaimer. Defendant, Thomas Wallin Torson, appeals by leave granted. Held:

    1. Thomas Wallin Torson, as the adopted son of Orcelia Wallin Torson, is her issue and entitled to conveyance of the trust property under his grandmother’s will. Unless the terms of a will indicate a contrary intent, the term issue shall be construed to include adopted persons. There was nothing in Elizabeth Wallin’s will which indicates an intent to exclude Thomas Wallin Torson from receiving the trust property upon his mother’s death.
    2. The defendant’s disclaimer of interest in the estate will be given no effect because the disclaimer was executed upon the false belief that the defendant had no entitlement to the property and that belief was created by the assurances of the plaintiff, a trustee of the estate, who stood to benefit by the disclaimer.

      References for Points in Headnotes

       80 Am Jur 2d, Wills §§ 1143-1146.

       2 Am Jur 2d, Adoption §§ 92, 96-99.
    80 Am Jur 2d, Wills §§ 1184, 1205, 1217.

       2 Am Jur 2d, Adoption § 98.

       80 Am Jur 2d, Wills § 1143.

       80 Am Jur 2d, Wills §§ 1104-1114, 1597-1606.

      The circuit court order is reversed and the probate court order is reinstated.
    1. Wills — Construction — Testator’s Intent — Language.
    The sole objective in an action for construction of a will is ascertainment and effectuation of the intent of the testator as it appears from the language of the instrument.
    2. Wills — Trusts — Construction — Adopted Persons — Descendants — Vested Interests — Indefeasible Rights — Statutes.
    The term child, grandchild, issue, heir, descendant, beneficiary or other equivalent term should be construed to include any adopted person and his descendants, whether natural or adopted, in the construction of any trust agreement or will, unless a contrary intention appears by the terms of the will or unless the estate granted or devised to the child, grandchild, issue, heir, descendant, beneficiary or equivalent person has vested in an already ascertained person or persons who have an immediate indefeasible right of enjoyment or a present indefeasible fixed ’right of future enjoyment therein (MCL 702.14a; MSA 27.3178[84a]).
    3. Wills — Construction — Testator’s Intent — Issue — Adopted Persons — Legislature.
    The Legislature cannot change a testator’s will or the intent of a testator by a statute adopted after the testator’s death; however, the Legislature acts within its authority and does not abridge the rights of a testator by decreeing that, unless the terms of a will indicate a contrary intent, the term issue shall be construed to include adopted persons because the statute merely sets forth a rule of construction to assist the courts in construing instruments wherein intent is not clear.
    4. Wills — Testator’s Intent — Language.
    It is the responsibility of a testator to indicate his intent clearly in the language of his will.
    5. Wills — Trusts — Disclaimer of Inheritance — False Assurances.
    A defendant’s disclaimer of inheritance to a disputed portion of an estate’s trust property under a will should be given no effect where the testimony of a plaintiff, who is an heir and trustee of the will, unequivocally indicates that the defendant executed the disclaimer based on the plaintiffs assurance that the defendant was not entitled to the trust property.

      Bergstrom, Slykhouse & Shaw, P.C. (by James G. Black), for plaintiff.

      Miller, Johnson, Snell & Cummiskey (by Stephen C. Bransdorfer and Henry L. Guikema), for defendant.
    Before: T. M. Burns, P.J., and M. J. Kelly and D. F. Walsh, JJ.
   D. F. Walsh, J.

Defendant appeals the order of the Ottawa County Circuit Court reversing the probate court’s determination that defendant is included in the term "issue” as used in the will of defendant’s maternal grandmother Elizabeth W. Wallin. The probate judge also declared invalid a disclaimer executed by defendant in which he disclaimed any interest in the now disputed portion of Elizabeth Wallin’s estate. The circuit judge did not rule on the validity of the disclaimer.

We address two issues:

1. Did the probate judge err in ruling that defendant, who was adopted ten years prior to the date of his grandmother Elizabeth Wallin’s will, was his mother’s "issue” for purposes of interpreting that will?

2. Did the probate judge err in setting aside the disclaimer executed by defendant on May 12, 1975, in which he disclaimed any interest in the now disputed portion of his grandmother’s estate?

Elizabeth Wallin’s will, dated December 27, 1941, created, inter alia, a life trust for her daughter Orcelia Wallin Torson. Elizabeth Wallin died in 1943 and was survived by a son, plaintiff Franklin W. Wallin, and her daughter Orcelia Wallin Torson, defendant’s mother. Orcelia Torson died on December 31, 1976. Defendant was Orcelia Torson’s only surviving child. He was adopted by Orcelia Torson on August 29, 1931.

In her will, Elizabeth Wallin provided for the disposition of Orcelia Torson’s trust property upon Orcelia Torson’s death as follows:

"* * * and upon her [i.e., Orcelia Torson’s] death, said Trustees are to pay, deliver and convey the residue of said Trust Fund and all accumulations thereon, to her issue by right of representation, and if she is deceased without issue surviving, then said Trustees are to pay, deliver and convey the same to my son, Franklin W. Wallin, and if he is deceased, then to his issue, by right of representation.” (Emphasis added.)

The sole objective in an action for construction of a will is ascertainment and effectuation of the intent of the testator as it appears from the language of the instrument. In re Hund Estate, 395 Mich 188, 196; 235 NW2d 331 (1975), reh den, 395 Mich 923 (1976).

Our examination of Elizabeth Wallin’s will and the 1943 codicil thereto persuades us of her intent to include defendant in the term "issue”. The testamentary provisions clearly indicate an intent to treat each of her grandchildren alike.

Arguably, however, Elizabeth Wallin’s intent in using the term "issue” is ambiguous since one of her grandchildren (defendant) was adopted. In light of this arguable ambiguity in the will’s language, the probate judge was within his authority in resorting to a statutory rule of construction. In re Hund Estate, supra, at 196.

In 1966, the Legislature enacted the following statute:

"In the construction of any trust agreement or will, whether executed before or after the effective date of this enactment, the term 'child’, 'grandchild’, 'issue’, 'heir’, 'descendant’, 'beneficiary’ or other equivalent term shall be construed to include any adopted person and his descendants whether natural or adopted unless a contrary intention appears by the terms thereof or unless, at the effective date of this enactment, the estate granted or devised to the 'child’, 'grandchild’, 'issue’, 'heir’, 'descendant’, 'beneficiary’ or equivalent person has vested in an already ascertained person or persons who have an immediate indefeasible right of enjoyment or a present indefeasible fixed right of future enjoyment therein.” MCL 702,14a; MSA 27.3178(84a).

Neither of the two statutory exceptions applies here. First, there is nothing in Elizabeth Wallin’s will which indicates an intent to exclude defendant from receiving the trust property upon his mother’s death. Second, it was not until Orcelia Torson’s death "without issue surviving” that the estate granted to her "issue” could have vested in another person who would have an indefeasible right of present or future enjoyment. The term "vested” has "acquired a peculiar and appropriate meaning in the law”, and it is clear that the Legislature intended it to be construed according to that meaning. MCL 8.3a; MSA 2.212(1). The possibility of a woman having children is not disproven until her death. See, e.g., Gettins v Grand Rapids Trust Co, 249 Mich 238; 228 NW 703 (1930).

We find nothing constitutionally infirm in the above statute. The Legislature’s intent that the statute is to be applied retroactively is absolutely clear. There is express provision for protection of vested rights. In re Davis’ Estate, 330 Mich 647, 652; 48 NW2d 151 (1951).

It is true, of course, that the Legislature cannot change a testator’s will or the intent of a testator by a statute adopted after the testator’s death. In re Graham Estate, 379 Mich 224, 228; 150 NW2d 816 (1967). This statute, however, merely sets forth a rule of construction to assist the courts in construing instruments wherein intent is not clear. The Legislature was within its authority in decreeing that, unless the terms of a will indicate a contrary intent, the term "issue” shall be construed to include adopted persons. No rights of testators are abridged. It has always been the responsibility of a testator to indicate his intent clearly in the language of his will. There is nothing in the statute which changes or frustrates an intent clearly expressed.

With regard to the disclaimer executed by defendant we affirm the probate judge’s ruling that it is to be given no effect. The deposition testimony of plaintiff unequivocally indicates that defendant executed the disclaimer based on the assurance of plaintiff, one of the trustees, that defendant was not entitled to the trust property.

We reverse the circuit court order and reinstate the probate court order finding that defendant is Orcelia Torson’s "issue” for purposes of construing Elizabeth Wallin’s will. Because there were no disputed relevant facts, the probate judge was within his authority in entering judgment for defendant without a formal hearing.

Costs to appellant.

       The significance of the fact that defendant was adopted is evident when the instant case is compared with In re Butterfield Estate, 405 Mich 702; 275 NW2d 262 (1979). (no. 59276, decided February 8,1979). In that case, the Supreme Court was apparently concerned only with natural children, grandchildren and great grandchildren. The sole issue was whether great grandchildren were included in the term "issue” as used in their great grandfather’s will. The Court noted that "issue” is defined in Michigan to mean all lineal descendants and that the great grandchildren were, therefore, included. MCL 8.3h; MSA 2.212(8). The Court’s reference to the "plain meaning of the word 'issue’ in this state” must be read with the case’s factual context in mind.

       We reject plaintiff’s argument that, at the time Elizabeth Wallin’s will was executed, the term "issue” did not include defendant.' All cases cited by plaintiff involved children adopted after execution of the will, Russell v Musson, 240 Mich 631; 216 NW 428 (1927), or after the testator’s death. In re Chapple’s Estate, 338 Mich 246; 61 NW2d 37 (1953), In re Graham Estate, 379 Mich 224; 150 NW2d 816 (1967). In each of those cases, the fact that the child was subsequently adopted was noted as a relevant factor in determining the intent of the testator. Also see 2 Am Jur 2d, Adoption, § 94. That intent is always the controlling factor, In re Graham Estate, supra, at 226. The instant defendant was adopted ten years prior to Elizabeth Wallin’s execution of her will.