author: Per Curiam. D. E. Holbrook, J.

text:
    MICHIGAN MILLERS MUTUAL INSURANCE COMPANY v ADAMS
    Docket No. 77-4036.
    Submitted May 2, 1978, at Lansing.
    Decided June 20, 1978.
    Leave to appeal applied for.
    Sheila Adams was killed when the car in which she was riding, owned and operated by John W. Chi, collided with an uninsured vehicle. Mr. Chi had automobile liability insurance with Allstate Insurance Company. Allstate paid the policy limit of $20,000 to the estate of Sheila Adams under that policy. Sheila Adams was also covered for injury caused by an uninsured motorist under a policy issued by Michigan Millers Mutual Insurance Company to her daughter. The limit of liability under the provisions of the contract with Michigan Millers was $40,000. The estate of Sheila Adams filed a claim against Michigan Millers. Michigan Millers then commenced an action for a declaratory judgment and for a determination of the rights of the parties under the policy issued by plaintiff. Plaintiff alleged that its liability was only $20,000, because of an "other insurance” provision containing an excess insurance clause in the insurance contract. Summary judgment for plaintiff, Ingham Circuit Court, Michael G. Harrison, J. Defendant appeals. Held:

    The defendant is limited to a total recovery under the two insurance policies of $40,000 because the excess insurance clause in the Michigan Miller’s policy is clear and unambiguous in its applicability to the facts of the case and, therefore, the rights of the parties must rest on the insurance contract as written.

      References for Points in Headnotes
    [1] 7 Am Jur 2d, Automobile Insurance §§ 201, 202.
    Apportionment of liability between automobile liability insurers one or more of whose policies provide against any liability if there is other insurance. 46 ALR2d 1163.
    Apportionment of liability between liability insurers each of whose policies provides that it shall be "excess” insurance. 69 ALR2d 1122.
    Apportionment of liability between automobile liability insurers where one of the policies has an "excessive insurance” clause and the other a "proportionment” or "pro rata” clause. 76 ALR2d 502.
    [2] 44 Am Jur 2d, Insurance §§ 1815, 1817.

      Affirmed.
    D. E. Holbrook, J., dissented. He would hold that since separate premiums had been paid for uninsured motorist coverage of $20,000 and $40,000, the recovery should not be limited by an "excess insurance” clause in an "other insurance” provision where the parties have stipulated that the damages exceed $60,000. The estate should be allowed to recover $40,000 from Michigan Millers. He would reverse.
    Opinion op the Court
    1. Automobiles — Insurance—Excess Insurance — Rights op Parties.
    The rights of the parties to an automobile liability insurance contract, as provided in an "excess insurance” clause in the contract, must rest on the contract as written where that clause is clear and unambiguous.
    Dissent by D. E. Holbrook, J.
    2. Insurance — Premiums—Other Insurance Clause — Limiting Coverage.

      It is unconscionable to allow an insurance company to collect premiums for coverage on the one hand and on the other hand use an "other insurance” clause to take the coverage away.

      Willingham, Cote, Hanslovsky, Griffith & Fores-man, P. C. (by Marianne E. Samper), for plaintiff.

      Dunnings and Canady, P. C, for defendant.
    Before: J. H. Gillis, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.
   Per Curiam.

Defendant appeals by right from the entry of summary judgment for plaintiff on October 5, 1977.

Plaintiff filed a complaint for declaratory judgment on November 8, 1976, seeking a declaration of rights and obligations of the parties under a policy issued by plaintiff to defendant. The following stipulated statement of facts was agreed upon by the parties:

"This cause arises out of an automobile accident which occurred on May 10, 1975 at 9:00 p.m. in the City of Lansing at the intersection of Cedar Street and Pennsylvania Avenue. At that time and place defendant’s decedent Sheila Adams was a passenger in an automobile owned and operated by John W. Chi, which was proceeding north on Pennsylvania Avenue when a pick-up truck turned left from southbound Cedar Street directly into the path of the Chi car. A collision between the to [sic] vehicles resulted in which both John W. Chi and Sheila Adams were killed.
"Subsequent investigation revealed that the pick-up truck driver was uninsured. Mr. Chi had automobile liability insurance with Allstate Insurance Company and Sheila Adams was covered for injury caused by an uninsured motorist under a policy issued by plaintiff Michigan Millers to Mrs. Adams’ daughter.
"Pursuant to the provisions of the Allstate Insurance Company policy the Estate of Sheila Adams received their policy limit of $20,000. The Estate also filed a claim with Michigan Millers under the uninsured motorist provisions of their policy. The limit of liability under that provision is set at $40,000 by the terms of the. insurance contract.
"There is a provision of the Michigan Millers policy which plaintiff contends causes Michigan Millers to be liable for only the difference between the limit of liability and any amount paid by any other insurance company which in this case would total $20,000. Defendant Adams disputes the meaning and validity of the policy provision and claims to be entitled to the limit of liability of $40,000. Plaintiff Michigan Millers has in fact offered defendant $20,000 in settlement of the claim which defendant has rejected.
"It is stipulated between the parties that the damages resulting from the death of Sheila Adams when considering her employment, life expectancy and role as a mother and wife would exceed $60,000. The sole dispute in this matter is as to the validity and interpretation of the contractual provision of the insurance policy.”

Resolution of this case is dependent upon the construction given to the "excess insurance” clause of the "other insurance” provision of the insured’s policy.

The "other insurance” provision of the Michigan Millers policy issued to defendant’s decedent’s daughter provides as follows:

"Other Insurance: If the insured has other insurance against a loss to which the Liability Coverage applies or other automobile insurance affording benefits for medical expenses against a loss to which the Medical Expense Coverage applies, the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability under this policy for such loss bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute or non-owned automobile shall be excess insurance over any other valid and collectible insurance and if the insured has other excess or contingent insurance applicable to loss arising out of the use of a temporary substitute or non-owned automobile, the company shall not be liable under this policy for a greater proportion of such loss than the amount which would have been payable under this policy, had no such other insurance existed, bears to the sum of said amount and the amounts which would have been payable under each other policy applicable to such loss, had each such policy been the only policy so applicable.
"With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under the Uninsured Motorists Coverage shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.
"Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of .this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this Uninsured Motorists Coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.”

It is the second paragraph which sets forth the "excess insurance” clause:

"With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under the Uninsured Motorists Coverage shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.”

Faced with a similar factual situation, in Horr v Detroit Automobile Inter-Ins Exchange, 379 Mich 562, 566-567; 153 NW2d 655 (1967), the Supreme Court concluded:

"We find no statutory or decisional law of this State applicable in 1963 to the insurance clauses requiring our interpretation and the parties assert there were none. Consequently, our task is limited to determining the intent of the contracting parties.
" * * * The trouble with plaintiffs reliance upon the quoted language is that its context clearly discloses that it was intended to apply only to the determination of each insurer’s pro rata share of maximum combined coverage, 'the damages’ referred to in both policy clauses.
"Before that determination can be made, other language identical in both policies, 'the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance’, must be applied to determine the maximum combined coverage of the policies. Giving this language its literal meaning compels the conclusion that the maximum combined coverage of these policies is $10,000, since that sum is the stated limit of liability in both policies.”

This case does not present a "stacking” problem such as that found in, e.g., Kozak v Detroit Automobile Inter-Ins Exchange, 79 Mich App 777; 262 NW2d 904 (1977). This case does not involve a single insurer issuing multiple insurance policies. Thus, as in Horr, supra, a literal meaning may be given to the clause in question.

We hold that the "excess insurance” clause in the contested policy is clear and unambiguous in its applicability to the facts of this case; and, because of the absence of ambiguity in the "excess insurance” clause, we hold that the rights of the parties must rest on the insurance contract as written. The order of summary judgment is therefore affirmed.

We note, in passing, that defendant’s argument to the effect that plaintiff should pay a greater pro rata share than Allstate is beyond the scope of this appeal. Defendant is limited to a total recovery of $40,000.

Affirmed.

D. E. Holbrook, J.

(dissenting). This writer respectfully dissents from my learned brothers’ majority opinion.

The instant case involved two separate insurance policies issued by Allstate Insurance Company and Michigan Millers Mutual Insurance Company. Allstate insured Mr. Chi, the driver of the car in which defendant’s decedent was a passenger. The premium paid by Mr. Chi provided $20,000 in uninsured motorist coverage. Decedent’s estate was paid $20,000 by Allstate. Decedent was also covered under a policy her daughter had with Michigan Millers. The premium paid by decedent’s daughter provided $40,000 in uninsured motorist coverage. Decedent’s estate was offered $20,000 in full settlement by Michigan Millers even though plaintiff’s damages exceeded $60,000. This offer was refused. Michigan Millers asserts that the "excess insurance” clause of the "other insurance” provision of the policy prevents defendant from recovering any additional monies.

This writer feels that it is unconscionable to allow an insurance company to collect premiums for coverage on one hand and on the other hand to use the "other insurance” clause to take the coverage away. Under the facts in the instant case, the other insurance clause violates public policy.

In Sipes v McGhee, 316 Mich 614, 623-624; 25 NW2d 638 (1947), the Court gave a definitive meaning to the term public policy:

"[T]his Court adopted the meaning of public policy from Pittsburgh, C. C. & St. L. R. Co. v. Kinney, 95 Ohio St. 64 (115 N.E. 505, L.R.A. 1917 D, 641, 643, Ann. Cas. 1918 B, 286):
" ' "What is the meaning of 'public policy?’ A correct definition, at once concise and comprehensive, of the words 'public policy,’ has not yet been formulated by our courts. Indeed, the term is as difficult to define with accuracy as the word 'fraud’ or the term 'public welfare.’ In substance, it may be said to be the community common sense and common conscience, extended and applied throughout the State to matters of public morals, public health, public safety, public welfare, and the like. It is that general and well-settled public opinion relating to man’s plain, palpable duty to his fellow men, having due regard to all the circumstances of each particular relation and situation.
" ' "Sometimes such public policy is declared by Constitution; sometimes by statute; sometimes by judicial decision. More often, however, it abides only in the customs and conventions of the people, — in their clear consciousness and conviction of what is naturally and inherently just and right between man and man. It regards the primary principles of equity and justice and is sometimes expressed under the title of social and industrial justice, as it is conceived by our body politic. When a course of conduct is cruel or shocking to the average man’s conception of justice, such course of conduct must be held to be obviously contrary to public policy, though such policy has never been so written in the bond, whether it be Constitution, statute or decree of court. It has frequently been said that such public policy is a composite of constitutional provisions, statutes and judicial decisions, and some courts have gone so far as to hold that it is limited to these. The obvious fallacy of such a conclusion is quite apparent from the most superficial examination. When a contract is contrary to some provision of the Constitution, we say it is prohibited by the Constitution, not by public policy. When a contract is contrary to statute, we say it is prohibited by a statute, not by a public policy. When a contract is contrary to a settled line of judicial decisions, we say it is prohibited by the law of the land, but we do not say it is contrary to public policy. Public policy is the cornerstone — the foundation — of all constitutions, statutes, and judicial decisions, and its latitude and longitude, its height and its depth, greater than any or all of them. If this be not true, whence came the first judicial decision on matter of public policy? There was no precedent for it, else it would not have been the first.” ’ ”

See also, People, ex rel Attorney General v Koscot Interplanetary, Inc, 37 Mich App 447, 479-480; 195 NW2d 43 (1972), lv den, 387 Mich 765 (1972).

There is nothing naturally and inherently just and right in a case where individuals have paid separate premiums for uninsured coverage of $20,-000 and $40,000, yet are only able to recover $40,000 even though damages exceed $60,000.

This writer would rule that public policy requires that the primary principle of unconscionability and justice requires that the estate be allowed to recover $40,000 in uninsured coverage from Michigan Millers inasmuch as the premium paid was for $40,000 worth of coverage, and plaintiff’s damages exceeded $60,000. This conclusion is fortified by Aetna Casualty & Surety Co v Belcher, 83 Mich App 175; 268 NW2d 335 (1978).

In Blakeslee v Farm Bureau Mutual Ins Co of Michigan, 388 Mich 464, 474; 201 NW2d 786 (1972), and Boettner v State Farm Mutual Ins Co, 388 Mich 482, 487-488; 201 NW2d 795 (1972), Mr. Justice Williams, writing for a unanimous Court, stated:

"It would be unconscionable to permit an insurance company offering statutorily-required coverage to collect premiums for it with one hand and allow it to take the coverage away with the other by using a self-devised 'other insurance’ limitation.”

Although Mr. Justice Williams spoke about "statutorily-required coverage”, which is not the situation in the instant case, the tenor of his statement applies to the case at bar. It is unconscionable to allow an insurance company to collect premiums for coverage on one hand and on the other hand use the "other insurance” clause to take the coverage away.

This position which allows recovery in the case at bar finds support in other jurisdictions.

In Robinson v Allstate Ins Co, 267 So 2d 257 (La App, 1972), a guest passenger in a vehicle, which was involved in an accident with an uninsured motorist, was allowed to "stack” uninsured motorist coverage of $5,000 provided under his host driver’s policy with coverage under a policy he carried on his own personal vehicle. See also, Deane v McGee, 261 La 686; 260 So 2d 669 (1972), Graham v American Casualty Co of Reading, Pennsylvania, 261 La 85; 259 So 2d 22 (1972), wherein the Courts held that multiple uninsured motorist coverages, for which separate premiums are charged, afford insurance for limits up to the cumulated "stacked” total of all coverages.

In Werley v United Services Automobile Ass’n, 498 P2d 112, 118 (Alas, 1972), the Court stated as follows:

"The court also specifically rejected the insurer’s argument that plaintiff should not be permitted to 'stack’ benefits under several policies. The court saw nothing wrong with stacking benefits. It was persuaded by the argument that both insureds had purchased policies directly benefiting the passenger. Since both companies had collected premiums for this protection, there could be no injustice in permitting recovery to the limits of both policies. ” (Emphasis added.)

See, Lamb-Weston, Inc v Oregon Automobile Ins Co, 219 Or 110; 341 P2d 110 (1959), reh den, 219 Or 110; 346 P2d 643 (1959).

In the case of Cunningham v Ins Co of North America, 213 Va 72, 77; 189 SE2d 832 (1972), the Court wrote:

"The purpose of uninsured motorist insurance is to provide compensation to the innocent victim of the uninsured motorist. The named insured in a policy receives coverage, and a contract benefit, for which he has paid a consideration. He seeks indemnity based on the payment of that premium and where he has paid separate premiums he is entitled to the additional coverages.” (Emphasis added.)

In the instant case, the decedent’s estate should be allowed to recover $40,000 from Michigan Millers. To hold otherwise provides an unjust result.

This writer votes to reverse, with costs to defendant.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v SWEARINGTON
    Docket No. 29707.
    Submitted January 9, 1978, at Lansing.
    Decided February 8, 1978.
    Lawrence Swearington was convicted of breaking and entering with intent to commit larceny and of first-degree criminal sexual conduct, Macomb Circuit Court, Howard R. Carroll, J. Defendant appeals. Held:

      1. The defendant lacks standing to challenge the phrase "any other intrusion” as used in the criminal sexual conduct act because he was convicted under the more specific language of the statute.
    2. The defendant was not prejudiced where the jury was exposed to proposed exhibits of latent fingerprints, which had not been admitted into evidence, where a state police crime lab technician testified that the prints could not be identified as those of the defendant nor anyone else.
    3. The prosecutor was not required to dismiss the criminal sexual conduct charge against the defendant nor change the charge to one of gross indecency just because there has been no repeal of the gross indecency statute.
    4. A further instruction on an element omitted in the instructions to the jury, given to the jury two hours after the jury had commenced deliberations, did not result in reversible error. The additional instruction was readily understandable and did not place undue emphasis on the element, which was not a controverted issue in the case.
    5. The breaking and entering was an essential element of the offense of first-degree criminal sexual conduct in the instant case and separate convictions thereon violated double jeopardy protections.
    Conviction for breaking and entering reversed and the conviction for first-degree criminal sexual conduct affirmed.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 17.
    [2] 21 Am Jur 2d, Criminal Law §§ 341, 369.
    [3] 63 Am Jur 2d, Prosecuting Attorneys, §§ 25, 26.
    [4] 21 Am Jur 2d, Criminal Law § 299.
    75 Am Jur 2d, Trial § 51.
    [5] 21 Am Jur 2d, Criminal Law §§ 182, 183.

      1. Constitutional Law — Criminal Law — Standing—Criminal Sexual Conduct — Overbreadth—Vagueness.
    A defendant lacks standing to challenge the constitutionality of the criminal sexual conduct act on the grounds of overbreadth and vagueness where the defendant was not charged under the more general language which he seeks to challenge but was charged under the more specific language of the statute.
    2. Criminal Law — Evidence—Fingerprints.
    A defendant was not prejudiced sq that retrial is required where the jury was exposed to proposed exhibits of latent fingerprints that were not admitted into evidence and where a state police crime lab technician was called by the prosecutor and testified that the prints could not be identified as those of the defendant nor anyone else.
    3. Criminal Law — Applicable Statutes — Discretion of Prosecutor —Selection of Charge.
    A prosecutor has broad discretion in selecting the appropriate charge where several statutes are arguably applicable.
    4. Criminal Law — Instructions to Jury — Element of Offense-Delayed Instruction — Appeal and Error.
    The giving of a further instruction on an element omitted in the original instructions to a jury two hours after the jury had commenced deliberations was not reversible error where the instruction was readily understandable and did not place undue emphasis on the element, which was not, in any event, a controverted issue in the case.
    5. Criminal Law — Constitutional Law — Double Jeopardy — Breaking and Entering — First-Degree Criminal Sexual Conduct.
    Separate convictions for breaking and entering with intent to commit a felony and for first-degree criminal sexual conduct violate guarantees against double jeopardy where the breaking and entering is an essential element of the first-degree criminal sexual conduct.

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

      Frank L. McNelis, for defendant on appeal.
    Before: Bronson, P. J., and R. B. Burns and R. E. A. Boyle, JJ.

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

   Per Curiam.

Defendant was convicted by a jury of breaking and entering with intent to commit a larceny, MCL 750.110; MSA 28.305, and first-degree criminal sexual conduct, MCL 750.520b(1); MSA 28.788(2)(1), and appeals.

Defendant first argues that the criminal sexual conduct act is unconstitutional on the grounds of overbreadth and vagueness. We need go no further than to note that defendant lacks standing to raise a constitutional challenge to the language of MCL 750.520a(h); MSA 28.788(1)(h). Defendant was not charged with "any other intrusion”; rather, the evidence at trial showed that defendant had required the complainant to perform an act of fellatio. Since defendant’s conviction rests on the more specific language of the statute, he lacks standing to challenge the more general language on vagueness or overbreadth grounds. See People v Thompson, 76 Mich App 705, 710; 257 NW2d 268, 271 (1977), State ex rel Wayne County Prosecuting Attorney v Bernstein, 57 Mich App 204, 207; 226 NW2d 56, 58 (1974), lv granted, 393 Mich 793 (1975).

Defendant next argues that he was prejudiced by having the jury exposed to proposed exhibits of latent fingerprints that were not admitted into evidence. Ultimately, a state police crime lab technician was called by the prosecutor and testified that the prints could not be identified as those of defendant nor anyone else because of the lack of adequate ridge structure. In light of this testimony, we do not find that defendant was prejudiced such that retrial is required. People v Hunt, 77 Mich App 590, 596-597; 259 NW2d 147, 150 (1977), People v Miller, 28 Mich App 161, 165; 184 NW2d 286, 288 (1970), lv den, 384 Mich 826 (1971).

Defendant next argues that the absence of repeal of the gross indecency statute, MCL 750.338b; MSA 28.570(2), somehow entitles him to dismissal of the criminal sexual conduct charge or substitution of the gross indecency charge. Defendant fails, however, to raise a valid constitutional challenge to the criminal sexual conduct act. The prosecutor has broad discretion in selecting the appropriate charge where several statutes are arguably applicable. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683; 194 NW2d 693, 698 (1972).

Defendant next argues that reversible error was committed when the trial judge gave a further instruction on an element omitted in the original instructions to the jury two hours after the jury had commenced deliberation. The instruction was readily understandable, and did not place undue emphasis on the element, which was not, in any event, a controverted issue in the case.

The breaking and entering was an essential element of the offense of first-degree criminal sexual conduct in the instant case. Separate conviction thereon violated double jeopardy protections. See Harris v Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977), People v Martin, 398 Mich 303, 309; 247 NW2d 303, 305 (1976). Thus we reverse the conviction for breaking and entering and affirm the conviction for first-degree criminal sexual conduct.

Affirmed in part, reversed in part.


text:
    PEOPLE v RAYMOND SMITH
    Docket No. 77-1654.
    Submitted March 8, 1978, at Lansing.
    Decided May 12, 1978.
    Raymond C. Smith was convicted of welfare fraud over $500 in the Ingham Circuit Cpurt, Michael G. Harrison, J. Defendant appeals. Held:

    Sufficient evidence was produced at trial for the jury to determine that the defendant did not meet the affirmative duty imposed by statute to report a change in his circumstances which would decrease the amount of the grant he received. An individual violates the statute regarding the obligation to supply such information where he obtains or induces another to obtain assistance or relief to which he or she is not entitled. The total amount of assistance received as a result of a defendant’s misrepresentations, not only the portion of the benefits received which can be attributed to the defendant’s support, is used to calculate whether such misrepresentation amounts to a misdemeanor or a felony.
    Affirmed.
    1. Social Security and Public Welfare — Social Welfare Act— Welfare Relief — Information—Changes in Circumstances —Recipient’s Obligation — Statutes.
    Anyone receiving relief under the Social Welfare Act has ap affirmative duty to report any Change in his circumstances Which would decrease the amount of the grant he receives (MCL 400.60[2]; MSA 16.460[2]).
    2. Criminal Law — Social Security and Public Welfare — Evidence —Welfare Relief — Information—Changes in Circumstances — Recipient’s Obligation.
    Sufficient evidence was produced at a defendant’s trial for welfare fraud over $500 for the jury to determine that the defendant was receiving relief under the Social Welfare Act and, therefore, had a duty to report a change in circumstances which would decrease the amount of the grant he received where the evidence showed that the defendant resided at home with his wife and child at least part of the time and that the rent for the home came from the Department of Social Services and that he signed two re-determination of eligibility forms indicating that he was living in the home and that he was receiving no income or unemployment compensation.

      Reference for Points in Headnotes
    [1-3] 79 Am Jur 2d, Welfare Laws § 50.

      3. Criminal Law — Social Security and Public Welfare — Changes in Circumstances — Information-Recipient's Obligation— Total Assistance — Misdemeanors—Felonies—Statutes.
    An individual violates the statute regarding the obligation to supply information of a change in circumstances which would decrease the amount of public assistance or relief the person was entitled to where he obtains or induces another to obtain assistance or relief to which he or she is not entitled; the total amount of assistance received as a result of such misrepresentations, not only the portion of the benefits received which can be attributed to the defendant’s support, is used in calculating whether such misrepresentations amount to a misdemeanor of a felony (MCL 400.60; MSA 16.460).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, and Michael G. Woodworth, Chief Appellate Attorney, for the people.

      Sisk & Robson, P. C., for defendant.
    Before: D. E. Holbrook, Jr., P. J., and J. H. Gillis and S. Everett, JJ.

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

   Per Curiam.

Defendant was convicted of welfare fraud over $500 by an Ingham County jury on January 5, 1977. He was sentenced on February 25, 1977, to a term of 14 months to 4 years in prison. He appeals as of right seeking reversal or, in the alternative, a remand to the lower court for a determination of the actual amount of the fraud and for resentencing.

Defendant’s wife and child were receiving an ADC grant. When defendant returned home, the grant was increased. The presence of an unemployed father affects the amount of the ADC grant. MCL 400.56d; MSA 16.456(4).

Defendant was convicted of misrepresenting his employment status to the Department of Social Services. MCL 400.60(2); MSA 16.460(2) places an affirmative duty on anyone "receiving relief’ under the Social Welfare Act, MCL 400.1 et seq.; MSA 16.401 et seq. to report any change in his circumstances which would decrease the amount of the grant. Since defendant and his family received $1,447 during the period charged in the information, he was convicted of welfare fraud over $500.

Defendant first argues that he was not "receiving relief’ under the act and, therefore, had no duty to report the change in his circumstances. People v Akerley, 73 Mich App 321, 325; 251 NW2d 309 (1977). However, there was sufficient evidence produced at trial for a jury to determine otherwise. Defendant resided at home at least part of the time and the rent for that home came from the Department of Social Services. Additionally, he signed two re-determination of eligibility forms indicating he was living in the home and that he was receiving no income or unemployment compensation.

Defendant next contends that the proper test in determining whether he was guilty of a felony or a misdemeanor is the additional amount added to the grant from defendant’s failure to perform his statutory duties. The circuit court considered only the total amount of the grant.

MCL 400.60; MSA 16.460 provides in part that:

"Any person who by means of wilful false statement or representation or by impersonation or other fraudulent device obtains or attempts to obtain, or aids or abets any person to obtain (a) assistance or relief to which he is not entitled; or (b) a larger amount of assistance or relief than that to which he is justly entitled; or any officer or employee of a county, city or district department of social welfare who authorizes or recommends relief to persons known to him to be ineligible or to have fraudulently created their eligibility; or any person who knowingly buys or aids or abets in buying or in disposal of the property of a person receiving assistance or relief without the consent of the director or supervisor of the state department, shall, if the amount involved shall be of the value of $500.00 or less, be deemed guilty of a misdemeanor, and shall, if the amount involved shall be of the value of more than $500.00, be deemed guilty of a felony, and upon conviction shall be punished as provided by the laws of this state.” (Emphasis supplied.)

Defendant’s argument fails in light of the aforementioned statute. As noted by the underscored language, an individual violates MCL 400.60; MSA 16.460 when he obtains or induces another to obtain assistance or relief to which he or she is not entitled. Such is the case in the instant matter.

Defendant, via his misrepresentations, has caused to be paid over $1,447 in benefits in contravention of the statute. While only a portion of the benefits can be attributed to defendant’s support, the remaining amount was nonetheless paid over to his family as a result of his misrepresentations. Under such circumstances, we find that defendant has fraudulently caused benefits in excess of $500 to be paid out in contravention of MCL 400.60(1); MSA 16.460(1).

Hence, defendant was properly convicted of a felony under the statute.

Affirmed.


text:
    ARNOLD v DEPARTMENT OF STATE HIGHWAYS AND TRANSPORTATION
    Docket No. 30881.
    Submitted April 10, 1978, at Lansing.
    Decided June 7, 1978.
    Carliss Arnold brought suit against the Michigan Department of State Highways and Transportation for damages for injuries sustained when the automobile in which he was a passenger vaulted an expressway median and collided with oncoming traffic. The Court of Claims, Wade Van Valkenburg, J., entered a judgment of no cause of action for the defendant. Plaintiff appeals. Held:

    The state may be held liable for its failure to keep a highway under its jurisdiction in a condition reasonably safe and fit for travel. However, in a case alleging negligent design, the defect must be shown to be flagrant. The question of whether a particular defect is flagrant is a question for the trier of fact and is not to be disturbed unless clearly erroneous. The trial court did not err in concluding that the alleged defect here was not flagrant, since the Court of Appeals cannot say as a matter of law that the defect was so palpably dangerous as to require a contrary result.
    Affirmed.
    1. Highways — Safe Condition — Fitness for Travel — State’s Liability — Negligent Design — Flagrant Defects — Statutes.
    The state may be held liable for its failure to keep a highway under its jurisdiction in a condition reasonably safe and fit for travel; however, in the case of allegedly negligent design, the defect must be shown to be a flagrant defect (MCL 691.1402; MSA 3.996[102j).
    2. Highways — Flagrant Defects — Safe Condition — Trier of Fact
    —Appeal and Error — Clear Error — Statutes—Court Rules. The question of whether a particular defect in a highway is a flagrant defect, for purposes of establishing whether there has been a failure of the duty to keep such highway reasonably safe and fit for travel, is a question for the trier of fact and thus is not to be disturbed on appeal unless clearly erroneous (MCL 691.1402; MSA 3.996[102], GCR 1963, 517.1).

      References for Points in Headnotes
    [1, 2] 39 Am Jur 2d, Highways, Streets, and Bridges §§ 337 et seq., 353.
    Liability of governmental entity or public official for personal injury or damages arising out of vehicular accident due to negligent or defective design of highway. 45 ALR3d 875.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Myrón A. McMillan, Assistant Attorney General, for defendant.

      Charfoos & Charfoos, P. C. (by Douglas J. Peters), for plaintiff.
    Before: Danhof, C. J., and Bronson and Cynar, JJ.
   Per Curiam.

Plaintiff was seriously injured when a car in which he was a passenger was involved in a multi-car accident on September 11, 1974, on the Edsel Ford Freeway in Detroit. The vehicle in which plaintiff was riding was proceeding east in the left lane of the freeway at a speed somewhat in excess of the posted speed limit. When the traffic ahead slowed suddenly the driver swerved the car to the left. The car struck the curb, vaulted the median and collided with westbound traffic.

Plaintiff brought this action in the Court of Claims, alleging that the median guardrail was negligently designed, since it should have been high enough to prevent the vaulting that occurred. Plaintiff now appeals as of right the judgment of no cause of action entered in defendant’s behalf.

It is true that in certain situations the state may be liable for its failure to keep a highway under its jurisdiction in a condition "reasonably safe and fit for travel”. MCL 691.1402; MSA 3.996(102). However, in the case of allegedly negligent design, the defect must be shown to be "flagrant”. Fraley v City of Flint, 54 Mich App 570, 574; 221 NW2d 394 (1974), Mullins v Wayne County, 16 Mich App 365, 380; 168 NW2d 246 (1969), and Schrader v Port Huron, 106 Mich 173, 175; 63 NW 964 (1895). See also 45 ALR3d 875, 888-889. The question of whether a particular defect is "flagrant” is a question for the trier of fact, Mullins, supra, at 380, and thus is not to be disturbed unless "clearly erroneous”. GCR 1963, 517.1.

We find no error in the trial judge’s conclusion that the alleged defect here was not flagrant. The undisputed evidence established that the curb rose 10 inches from the roadway and that a street guardrail rose an additional 20 inches above the curb. Although a taller barrier might have prevented this accident, we cannot say that, as a matter of law, this defect was so palpably dangerous, so as to require a contrary result in this action.

Affirmed. No costs, a public question being involved.


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

text:
    BALL v CITY OF DETROIT
    Docket No. 25586.
    Submitted November 1, 1977, at Detroit.
    Decided July 5, 1978.
    In 1970 Robert Ball and 64 others filed suit on behalf of themselves and all others similarly situated against the City of Detroit, the Detroit Civil Service Commission, the American Federation of State, County and Municipal Employees, District Council 77, and others challenging the union’s right, under an "agency shop” clause of the master contract entered into between the city and the union, to compel payment of an "agency shop service fee” by nonmember employees in an amount equal to membership dues. In 1972 the Michigan Supreme Court held that "agency shop provisions” were contrary to the public employees relations act (Smigel v Southgate Community School District, 388 Mich 531; 202 NW2d 305 [1972]). In early 1973 an injunction was issued restraining defendants from enforcing the agency shop provisions of the collective bargaining agreements. In June, 1973, the language of the act was amended to relieve the statute from the interpretation in Smigel. The city and the union thereupon entered into a new agency shop agreement in a "memorandum of understanding”, and the city sent notices to all employees in the bargaining unit of Council 77 that they must either join the union, pay the agency shop service fee or face dismissal. A supplemental injunction stopped defendants from enforcing the agency shop provision and from dismissing employees for not paying, pending the outcome of the suit. The Wayne Circuit Court, George Martin, J., entered judgment providing: (a) the agency shop agreement is not unconstitutional; (b) refunds to 277 employees for deductions made illegally prior to amendment of the act; (c) refunds to seven named plaintiffs, who had proven their objections to the union’s use of service fees for political purposes, in an amount of one percent of the service fee subsequent to the amendment; (d) a future reduction of the service fee payable by those seven employees; (e) that the lawsuit was not a class action for purposes of restitution to thos'e who did not testify and prove their claim; (f) that after the act’s amendment, all employees must either pay union dues or service fees or face dismissal; (g) judgments of no cause of action against the city, the Detroit Civil Service Commission and others; and (h) for dissolution of the injunction enjoining collection of service fees and discharging employees who didn’t pay. Plaintiffs appeal. Held:

      References for Points in Headnotes
    [1] 2 Am Jur 2d, Administrative Law §§ 595-609.
    [2 — 6] 48 Am Jur 2d, Labor and Labor Relations §§ 18, 182.

      1. The "exhaustion of remedies” doctrine does not preclude recourse to Michigan courts where fundamental constitutional rights are asserted.
    2. It is constitutional for a governmental employer to negotiate an agency shop agreement and require its employees who áre not members of the exclusive bargaining agent to pay a Service fee to the agent for the purpose of defraying the cost of collective bargaining, contract administration and grievance adjustment.
    3. Once any nonmember indicates his objection to the use of any portion of the required service fee for purposes unrelated to collective bargaining, contract administration and grievance adjustment, the burden shifts to the union to document those valid costs and to refund any excess.
    4. It is not incumbent upon the objecting nonmember to specify to what uses he objects.
    5. Once a union in an agency shop situation has proven what percentage of the service fée required of nonmember employees of the bargaining unit are unrelated to collective bargaining, contract administration and grievance adjustment, future service fees must be reduced by that percentage to assure that little, if any, of the service fee paid by the objecting nonmember will be used, even temporarily, to finance activities unrelated to collective bargaining.
    6. A union in an agency shop situation shall adjust, at least annually, the service fee reduction according to fluctuations in permissible expenditures and a nonmember wishing to challenge the union’s calculations shall exhaust the internal union appellate procedures before seeking review in the courts; such a prospective "exhaustion of remedies” requirement is permissible because the risk of improper use of the service fee is minimized by an initial judicial determination and by subsequent fee reductions and because such a procedure avoids the possibility of continual judicial supervision.
    7. Requiring nonmembers of the union in an agency shop situation to pay service fees into an escrow account prior to a judicial determination of the amount to which the union is entitled assures nonmembers that their First Amendment rights are not violated by union use of the funds, even temporarily, for activities to which they are opposed while at the same time ensuring that nonmembers pay their service fee or face dismissal and ensuring the union prompt access to the funds upon judicial determination as to what portion they are entitled.
    8. Suits to enforce first amendment rights of nonmembers of a union in an agency shop situation may not be brought as class actions; dissent on the part of nonmember employees may not be presumed.
    Affirmed in part, reversed in part and remanded.
    1. Courts — Defenses—Exhaustion of Remedies Doctrine — Constitutional Law — Fundamental Constitutional Rights.
    The "exhaustion of remedies” doctrine does not preclude recourse to Michigan courts where fundamental constitutional rights are asserted.
    2. Labor Relations — -Constitutional Law — Agency Shop — Public Employees — Unions—Nonmember Employees — Service Fees —Burden of Proof.
    It is constitutional for a governmental employer to negotiate an agency shop clause and then require its employees who are not members of the exclusive bargaining agent to pay the union a service charge to finance union expenditures "for the purposes of collective bargaining, contract administration and grievance adjustment,” however, once a nonmember indicates his objection to the use of any portion of the service fee for purposes unrelated to collective bargaining, contract administration and grievance procedures, the burden shifts to the union to document those valid costs and then refund, or not collect in the first place, any excess to the objecting nonmember; it is not incumbent upon the objecting nonmember to specify to what uses he objects.
    3. Labor Relations — Unions—Agency Shop — Service Fee Reductions.
    Once a union in an agency shop situation has proven what percentage of the service fee required of nonmember employees of the bargaining unit are unrelated to collective bargaining, contract administration and grievance adjustment, future service fees must be reduced by that percentage to assure that little, if any, of the service fee paid by the objecting nonmember will be used, even temporarily, to finance activities unrelated to collective bargaining.
    4. Labor Relations — Public Employees — Unions—Agency Shop— Service Fee Reductions — Adjustment of Service Fee Reductions — -Appeal and Error — Exhaustion of Remedies.
    A public employee union in an agency shop situation shall adjust, at least annually, the service fee reduction according to fluctuations in permissible expenditures and a nonmember wishing to challenge the union’s calculations shall exhaust the internal union appellate procedures before seeking review in the courts; such a prospective "exhaustion of remedies” requirement is permissible because the risk of improper use of the service fee is minimized by an initial judicial determination and by subsequent fee reductions and because such a procedure avoids the possibility of continual judicial supervision.
    5. Labor Relations — Public Employees — Unions—Agency Shop— Service Fee — Reduction—Escrow of Service Fee Prior to Judicial Determination.
    Requiring nonmembers of a public employee union in an agency shop situation to pay service fees into an escrow account prior to a judicial determination of the amount to which the union is entitled assures nonmembers that their first amendment rights are not violated by union use of the funds, even temporarily, for activities to which they are opposed while at the same time ensuring that nonmembers pay their service fee or face dismissal and ensuring the union prompt access to the funds upon judicial determination as to what portion they are entitled.
    6. Labor Relations — Unions—Agency Shop — Service Fees- — Class Action Suits.
    Suits to enforce first amendment rights of nonmembers of a union in an agency shop situation may not be brought as class actions.

      Keller, Thoma, Toppin & Schwarze, P. C. (by David E. Kempner), Webster, Kilcullen & Chamberlain, and National Right to Work Legal Defense Foundation (by Raymond LaJeunesse, Jr.), for plaintiffs.

      Kermit G. Bailer, Corporation Counsel, and Michael Hurvitz, Assistant Corporation Counsel, for defendant City of Detroit and Detroit Civil Service Commission.

      Zwerdling & Maurer, for defendant AFSCME Council No. 77, AFL-CIO.
    Amicus Curiae: Detroit Federation of Teachers (by Marston, Sachs, Nunn, Kates, Kadushin & O’Hare).

    Before: Beasley, P. J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ.
   D. E. Holbrook, Jr., J.

In June 1970, 65 nonunion member employees of the City of Detroit filed suit against the City of Detroit, the Detroit Civil Service Commission, the American Federation of State, County and Municipal Employees (AFSCME), District Council 77 and various individual former and current officers of Council 77. Plaintiffs challenged defendant union’s right to compel payment of an "agency shop service fee”, as required by collective bargaining agreements between the union and the city, in the same amount as union dues paid by employees who were union members. Procedural skirmishing followed and subsequent agreements were entered into by the city and union.

In 1972 the Michigan Supreme Court ruled that "agency shop provisions” were repugnant to the public employees relations act (PERA). Smigel v Southgate Community School Dist, 388 Mich 531; 202 NW2d 305 (1972). In early 1973 a Wayne County circuit judge issued an injunction restraining defendants from enforcing the agency shop provisions of the collective bargaining agreements.

On June 14, 1973, the statutory subsection of PERA dealing with agency shop provisions, MCL 423.210; MSA 17.455(10), was amended, in pertinent part, to read (new language in italics):

"423.210 Unlawful labor practices; service fees in lieu of dues
"Sec. 10. (1) It shall be unlawful for a public employer or an officer or agent of a public employer (a) to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section 9; (b) to initiate, create, dominate, contribute to, or interfere with the formation or administration of any labor organization: Provided, That a public employer shall not be prohibited from permitting employees to confer with it during working hours without loss of time or pay; (c) to discriminate in regard to hire, terms or other conditions of employment in order to encourage or discourage membership in a labor organization: Provided further, That nothing in this act or in any law of this state shall preclude a public employer from making an agreement with an exclusive bargaining representative as deñned in section 11 to require as a condition of employment that all employees in the bargaining unit pay to the exclusive bargaining representative a service fee equivalent to the amount of dues uniformly required of members of the exclusive bargaining representative * * *
"(2) It is the purpose of this amendatory act to reaffirm the continuing public policy of this state that the stability and effectiveness of labor relations in the public sector require, if such requirement is negotiated with the public employer, that all employees in the bargaining unit shall share fairly in the financial support of their exclusive bargaining representative by paying to the exclusive bargaining representative a service fee which may be equivalent to the amount of dues uniformly required of members of the exclusive bargaining representative. ”

After the statutory amendments, a new agency shop clause was entered into between the city and union in a "memorandum of understanding”. Pursuant to that memorandum, the city sent written notices to all employees in the bargaining unit of Council 77, informing them that they were required to either join the union, pay the service fee or face dismissal.

In November, 1973, a "Supplemental Injunction Order” was issued from Wayne Circuit Court restraining defendants from enforcing the agency shop clause and from discharging or threatening to discharge those employees who did not pay. The injunction was later amended and to remain in force pending the outcome of plaintiffs’ suit.

Finally in early 1975 plaintiffs’ suit went to trial before Wayne Circuit Judge George Martin. In a lengthy opinion, the judge made extensive findings of fact and law. The resulting judgment provides in relevant part:

a) The agency shop agreement is not unconstitutional.
b) Refund was ordered as to 277 employees for deductions made illegally during the period from April 30, 1970, to July 17, 1973.
c) Seven named plaintiffs were entitled to a refund from Council 77 of the amounts used by Council 77 for political expenses after July 17, 1973. (In the trial court’s findings, that amount was found to be 1% of the service fee.)
d) The same seven plaintiffs were entitled to a future reduction in required fees in the same amount as used by Council 77 for political activities.
e) The lawsuit was not a class action for the purpose of obtaining restitution by those who did not testify and prove their objections.
f) After July 17, 1973, all plaintiffs must pay either union dues or service fees or suffer dismissal.
g) Judgment of no cause of action was rendered for defendants City of Detroit, Detroit Civil Service Commission and defendants Van Zandt and Simpson.
h) The injunction, restraining defendants from collecting service fees and from discharging those who did not pay, was dissolved.

The judgment was entered on April 24, 1975, and the trial judge issued a supplemental opinion on August 12, 1975.

Subsequent to the filing of plaintiffs’ appeal in this case, the United States Supreme Court addressed several aspects of Michigan’s statute which allows agency shop agreements in the public sector, MCL 423:210; MSA 17,455(10). Abood v Detroit Bd of Education, 431 US 209; 97 S Ct 1782; 52 L Ed 2d 261 (1977). In Abood plaintiff teachers challenged the constitutionality of MCL 423:210; MSA 17.455(10), and the Wayne County Circuit Court granted summary judgment in favor of defendants Detroit Board of Education and Detroit Federation of Teachers. The Court of Appeals reversed in Abood v Detroit Bd of Education, 60 Mich App 92; 230 NW2d 322 (1975), and when the Michigan Supreme Court denied leave to appeal, 395 Mich 755 (1975), the United States Supreme Court noted probable jurisdiction, 425 US 949; 96 S Ct 1723; 48 L Ed 2d 192 (1976).

In a lengthy majority opinion, the United States Supreme Court concluded that insofar as the agency shop service charge is used to finance union expenditures for purposes of collective bargaining, contract administration and grievance adjustment, the agency shop agreement is constitutional. Abood, supra, at 224-226. Further the Court concluded that public employees are guaranteed First Amendment rights and that objecting employees may constitutionally prohibit the union from using any portion of the service fee for the advancement of political views or support of political candidates. The Court recognized that there will be difficult problems drawing the line between collective bargaining activities and ideological activities unrelated to collective bargaining.

Since the Court was only passing on the propriety of the trial court’s grant of summary judgment, the Court declined to define such a dividing line and concluded that the plaintiffs’ allegations, if proven, stated a cause of action under the First and Fourteenth Amendments. Abood, supra, at 236-237.

Next, the Court addressed the design of an appropriate remedy for those employees who objected to the use of any portion of the service fee for activities unrelated to collective bargaining. The objective of the remedy, "must be to devise a way of preventing compulsory subsidization of ideological activity by employees who object thereto without restricting the union’s ability to require every employee to contribute to the cost of collective bargaining activities”. 431 US at 237. For guidance the Court looked to its prior decisions. The Court focused on four controlling principles: 1) the "practical decree” enunciated in Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees v Allen, 373 US 113; 83 S Ct 1158; 10 L Ed 2d 235 (1963), which provided for (a) the refund of a portion of the exacted funds in the proportion union political expenditures bear to total union expenditures, and (b) the reduction of future exactions by the same proportions. Abood, supra, at 240; 2) because of the difficulties of judicial administration of such a remedy, the Allen "Court also suggested that it would be highly desirable for unions to adopt a 'voluntary plan by which dissenters would be afforded an internal union remedy.’ ” Abood, supra, at 240; 3) the Michigan Court of Appeals was correct in denying the broad injunctive relief requested by plaintiff teachers in the Abood case; and 4) to protect a dissenting employee’s First Amendment rights, the employee need only indicate that he or she opposes ideological expenditures which are not related to collective bargaining:

"But in holding that as a prerequisite to any relief each appellant must indicate to the Union the specifíc expenditures to which he objects, the Court of Appeals ignored the clear holding of Allen. As in Allen, the employees here indicated in their pleadings that they opposed ideological expenditures of any sort that are unrelated to collective bargaining. To require greater specificity would confront an individual employee with the dilemma of relinquishing either his right to withhold his support of ideological causes to which he objects or his freedom to maintain his own beliefs without public disclosure. It would also place on each employee the considerable burden of monitoring all of the numerous and shifting expenditures made by the Union that are unrelated to its duties as exclusive bargaining representative.” (Emphasis in original; footnote omitted.) Abood, supra at 241.

It is within these parameters that a state may design a remedy to ensure the protection of the constitutional rights of objecting employees while at the same time permitting the union to collect that portion of the service fee related to collective bargaining, contract administration and grievance procedures.

In the instant case, as noted earlier, the briefs were filed before the United States Supreme Court decision in Abood. At oral argument this panel invited supplemental briefs so the parties could reassess their positions in light of the Abood decision.

Recognizing that several initial grounds of attack had been foreclosed by Abood, plaintiffs-appellants have narrowed their request for a remand to the following issues:

I. What is the proper burden of proof?

II. Should the service fees be placed in escrow until the union has met its burden of proof?

III. Should this action be treated as a class action?

As a prelude to an analysis of plaintiffs’ specific contentions, we note the difficulty of fashioning a remedy which: a) protects the constitutional rights of nonunion employees; b) is consistent with the goals of labor law policies; and c) avoids continual judicial supervision. We fully agree with the Supreme Court that it would be highly desirable for unions to adopt internal procedures for calculating and refunding that portion of fees unrelated to collective bargaining to objecting employees. Allen, supra, at 122; Abood, supra, at 240. The parent of Council 77, AFSCME International, has adopted such a procedure. Under Article IX, § 9 of the AFSCME Constitution, the union makes a determination of the amounts expended for partisan political and ideological purposes and, accordingly, the amount to be rebated to those nonmembers who object to such expenditures. That rebate calculation may be appealed to an AFSCME "Judicial Panel” and a final appeal may be taken to an independent "Review Panel”. This appears to be similar to the procedure adopted by the teachers’ union in the Abood case. See Abood, supra, n 41, p 240.

It is tempting to merely stay the lower court action pending exhaustion of plaintiffs’ internal union remedies. However where fundamental constitutional rights are asserted, the "exhaustion of remedies” doctrine does not preclude recourse to Michigan courts. Kewin v Bd of Education of the Melvindale-Northern Allen Park Public Schools, 65 Mich App 472, 477-479; 237 NW2d 514 (1975); Barry v Flint Fire Dept, 44 Mich App 602; 205 NW2d 627 (1973).

Because the constitutional questions raised by plaintiffs were not resolved until Abood and after the trial court decision and because of remaining questions of the burden of proof and proper remedy, we conclude a limited remand to the trial court is necessary.

Burden of Proof

In Abood the Supreme Court held the Michigan statute constitutional insofar as the service charge is used to finance union expenditures "for the purposes of collective bargaining, contract administration, and grievance adjustment * * * ”, Abood, supra, at 225-226. Because the union is in possession of facts and records documenting union expenditures, basic fairness requires the union to carry the burden of proof to establish the costs of these legitimate uses of an objecting nonmember’s service fee. As the Court stated in Abood, a nonmember need not indicate specific expenditures to which he or she objects. Once a nonmember indicates his or her objection to the use of any portion of the service fee for purposes unrelated to collective bargaining, contract administration and grievance procedures, the burden shifts to the union to document those valid costs and then refund (or not collect in the first place) any excess to the objecting nonmember.

Under the above constitutionally mandated standards, it is clear the trial judge erred in several ways. While we certainly cannot fault the trial judge for failing to anticipate the Supreme Court in Abood, the case must be remanded for an application of the proper standards.

First, the trial judge imposed an incorrect burden of proof on the union. He concluded the union had carried its burden of establishing "political expenditures” amounted to 1% of the service fee. Further he concluded seven specific plaintiffs had failed to "prove” their objections to union expenditures for union activities and programs which were economic, professional, scientific and religious in nature. Instead of requiring the union to establish the costs of legitimate expenditures, the judge narrowly limited the union’s burden of proof to establishing the cost of one type of impermissible expenditure.

Under Abood the union is entitled only to that portion of the service fee used for collective bargaining, contract administration and grievance adjustment. Further, objecting employees need not indicate specific causes to which they object nor can they be required to "prove” their objections. In the instant case, for example, the use of the service fee to advance or promote "religious” or "economic” views would be no less an infringement on an objecting employee’s First Amendment rights than the use of the fee to promote "political” views. Once there is a sufficient indication that a nonmember objects to the use of any portion of the service fee for purposes unrelated to collective bargaining, contract administration and grievance adjustment, the nonmember has established a prima facie case. At that point, the union must establish the cost of the three permissible types of expenditures. As noted by the Supreriie Court, the dividing line may be difficult to draw. Whether a union can meet its burden of relating various expenditures to the three permissible types of expenditures should be adjudicated on a case by case basis.

Second, the trial judge erred by denying any relief to the large number of named plaintiffs who did not appear at trial to "prove” their objections. While this case cannot properly be brought as a class action (see discussion, infra), plaintiffs who have been involved in the litigation since 1970 have sufficiently indicated their objections to entitle them to relief. Again we emphasize that dissenting employees need not "prove” their objections in the sense that they must testify as to why they object or testify as to the specific activities and causes to which they object.

After remand and after the union has established the amount of the service fee it may retain,, the objecting employees will be entitled to a refund of any monies already paid that exceed the amount retained by the union. We agree with the trial court and Allen, supra, that future service fees must be reduced by the percentage which is unrelated to collective bargaining, contract administration and grievance adjustment. This provides some assurance that little, if any, of the service fee paid by an objecting nonmember will be used, even temporarily, to finance activities unrelated to collective bargaining. See concurring opinion of Justice Stevens in Abood, supra, at 244.

In the future the union shall adjust, at least annually, the service fee reduction according to fluctuations in permissible expenditures. If a nonmember wishes to challenge the union’s calculation, he or she must first utilize the internal union appellate procedures before seeking review in the courts. This is a prospective "exhaustion of remedies” requirement, but because the risk of improper use of the service fee is minimized by an initial judicial determination and subsequent fee reductions, the policies of Kewin, supra, and Barry, supra, are not offended. By requiring prior resort to union remedies in the future, the possibility of continual judicial supervision is avoided.

Escrow

The Supreme Court concluded the Michigan Court of Appeals was correct in denying the, "broad injunctive relief requested.” Abood, supra, at 241 (emphasis supplied). However we agree with plaintiffs that allowing the union the use of funds prior to a judicial determination subjects nonmembers to the risk that their fees may be used, even temporarily, for activities to which they are opposed. Because fundamental First Amendment rights are at stake, we believe the proper solution is to require nonmembers to pay service fees into an escrow account. While we recognize this works somewhat of a hardship on the union because temporarily it will be unable to collect even the portion of service fees to which it is entitled, that hardship is outweighed by the possibility that First Amendment rights will be violated. Establishing a temporary escrow account is not the broad injunctive relief prohibited in Abood. Rather it is a temporary measure designed to ensure nonmembers pay their service fees or face dismissal and to ensure the union will have prompt access to the funds to which it is entitled after a judicial determination. Whatever remains in the escrow account shall be refunded to the objecting nonmembers.

Class Action

The trial judge correctly refused to allow plaintiffs to bring the suit as a class action.

In Allen, supra, the Supreme Court stated:

"But we made clear in Street that 'dissent is not to be presumed — it must affirmatively be made known to the union by the dissenting employee.’ 367 U.S., at 774 [81 S Ct at 1803; 6 L Ed 2d at 1164). * * * No respondent who does not in the course of further proceedings in this case prove that he objects to such use will be entitled to relief. This is not and cannot be a class action.” (Footnote omitted.) Allen, supra, at 118-119.

The Abood case makes clear the dissenting employee is required to do very little to indicate his or her objection in order to make out a prima facie case. Failure to take this minimal step precludes relief.

Summary

We have attempted to balance strong competing interests in fashioning a remedy and guidelines for the trial court on remand. By allowing an initial judicial determination and subsequent service fee reductions and adjustment, the rights of the objecting nonmembers are protected and the union will be able to collect that portion of the service fees to which it is statutorily entitled. By requiring future objections to be processed first through union procedures, including an independent review panel, the need for continual judicial supervision has been avoided.

Affirmed in part; reversed in part; remanded for further proceedings.


author: M. J. Kelly, P. J.

text:
    MOORE v CARNEY
    Docket No. 27374.
    Submitted April 6, 1978, at Detroit.
    Decided July 5, 1978.
    Marion Moore brought an action, as a minority shareholder of Woodhaven Fourth Corporation, against John R. Carney, Raymond W. Rebandt, and Patrick J. Keating, the directors of the corporation, and against the corporation itself, seeking dissolution of the corporation and to have her interest in the corporation bought out. It was the claim of plaintiff that the defendant directors were guilty of several acts or omissions in management which were oppressive and unjust toward plaintiff. The Wayne Circuit Court, George E. Bowles, J., entered a judgment ordering defendants Carney, Rebandt and Woodhaven Fourth Corporation to purchase the plaintiffs stock and awarding her attorney fees against the corporation only. The plaintiff appeals the trial court’s denial of interest on the judgment from the date of filing the complaint and the deletion of defendant director Keating from the judgment. The defendants Carney and Rebandt cross-appeal, challenging the award of attorney fees. Held:

    1. The judgment requiring the purchase of the plaintiffs stock was not a "money judgment” as that term is used in the statute regarding interest, but rather was a part of an equitable remedy. The denial of interest from the date of filing the complaint was proper.
    2. The deletion of defendant Keating from the judgment was proper. It is clear from the record that the other directors were the individuals actively involved in the oppressive acts, and the plaintiff was not prejudiced by the deletion of the third director.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error §§ 703, 839 et seq.

    19 Am Jur 2d, Corporations §§ 528, 532.
    [2] 4 Am Jur 2d, Appeal and Error § 493.
    5 Am Jur 2d, Appeal and Error §§ 703, 839 et seq.

    [3, 4] 46 Am Jur 2d, Judgments § 1.
    [4] 19 Am Jur 2d, Corporations § 587.
    45 Am Jur 2d, Interest § 60.
    [5] 19 Am Jur 2d, Corporations § 571.
    59 Am Jur 2d, Parties § 215.
    [6] 19 Am Jur 2d, Corporations §§ 588-590.
    Attorneys’ fees and other expenses incident to controversy respecting internal affairs of corporation as charge against the corporation. 39 ALR2d 580.

      3. The trial court correctly found that the corporation benefited from the action, therefore the award of attorney fees was proper.
    Affirmed.
    1. Equity — Appeal and Error — Corporations—Shareholder’s Derivative Action — De Novo Review — Clear Error — Court Rules.
    A shareholder’s derivative action, being equitable in nature, is reviewed de novo by the Court of Appeals; however, factual determinations made by a trial court sitting without a jury will not be set aside unless clearly erroneous (GCR 1963, 517.1).
    2. Appeal and Error — Clear Error — Conviction of Mistake.
    A finding of a lower court is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed after reviewing the entire record, although there is evidence to support the finding.
    3. Judgment — Money Judgment — Definition.
    A "money judgment” is one which adjudges the payment of a sum of money, as distinguished from one directing an act to be done or property to be restored or transferred.
    4. Corporations — Judgment—Money Judgment — -Purchase of Stock — Interest on Judgment — Statutes.
    A judgment which required some of the defendant directors of a corporation to purchase the stock of a plaintiff minority shareholder upon a finding of several acts of mismanagement which were unjust and oppressive toward the plaintiff was not merely a "money judgment” as that term is used in the statute regarding interest on judgments, but rather was a part of an equitable remedy designed to save the corporation; therefore, the trial court properly refused to grant the plaintiff interest from the date of filing the complaint (MCL 600.6013; MSA 27A.6013).
    5. Corporations — Directors—Judgment—Oppressive Actions.
    A trial court properly deleted one of three corporate directors from a judgment ordering the other two to purchase the stock of a minority shareholder because of oppressive actions toward the shareholder where it is clear that the two directors were the individuals actively involved in the oppressive acts, where it appears that the third director was a passive director, and where the plaintiff was not prejudiced by the deletion of the third director.
    6. Corporations — Judgment—Attorney Fees — Statutes—Benefit to Corporation.
    Attorney fees may be awarded in an action brought by a minority shareholder in the right of a corporation if successful and if the corporation is thus benefited by the suit; a trial court’s finding that a corporation was benefited, where two of its directors were ordered to purchase the stock of the plaintiff minority shareholder but were denied payment to them of fees claimed by them for services to the corporation and where dissolution of the corporation was denied, was not improper and an award of attorney fees against the corporation was not an abuse of discretion (MCL 450.1493[1]; MSA 21.200[493] [1]).

      Hyman, Gurwin, Nachman, Friedman & Winkek man (by Jefferson F. Riddell), for plaintiff.

      Alan J. Czekaj, for defendants.
    Before: M. J. Kelly, P. J., and D. E. Holbrook, Jr. and Beasley, JJ.
   M. J. Kelly, P. J.

Plaintiff, Marion Moore, a person without experience in land development, became involved in a land speculation project with Roy Short. Eventually, several corporations were formed, including defendant Woodhaven Fourth Corporation. Defendants John R. Carney, Raymond W. Rebandt, and Patrick J. Keating were not involved in the organization pf the scheme.

Ownership of the corporation, however, ultimately came down to plaintiff Moore, and defendants Carney and Rebandt. Carney, Rebandt, and defendant Keating were the directors. Mrs. Moore brought this suit on behalf of herself as a minority shareholder against the individual directors and the corporation. The trial court found that ten specific acts (or omissions) of mismanagement had occurred, and that the acts of the defendants were oppressive and unjust toward minority shareholder Moore. Final judgment was entered in January, 1976, ordering defendants Carney, Rebandt and Woodhaven Fourth Corporation (but excluding defendant Keating) to purchase Mrs. Moore’s stock for $55,000 plus $1,759 costs. Attorney fees of $17,000 were awarded to Mrs. Moore against the corporation only.

Plaintiff filed a claim of appeal on January 29, 1976. A motion for partial new trial was made and denied. After a delay in getting transcripts, a claim of cross-appeal was filed by defendants in November, 1977.

Since none of the parties dispute the trial court’s findings regarding the oppressive and unjust acts of the defendants toward Mrs. Moore, and no issue is raised concerning this aspect of the suit, a review of the underlying facts is unnecessary for disposition of this appeal.

This suit was brought in equity by the plaintiff on behalf of herself as a minority shareholder. It also had some aspects of a shareholder derivative suit, relief sought was dissolution of the corporation and to have plaintiff’s interest bought out. We review such an action de novo.

"A shareholder’s derivative action, being equitable in nature, is reviewed de novo in this Court. See Dozier v Automobile Club of Michigan, 69 Mich App 114; 244 NW2d 376 (1976). However the de novo review of equity cases must be reconciled with the mandate of GCR 1963, 517.1 which states that factual determinations made by a trial court sitting without a jury will not be set aside unless clearly erroneous. In Ford v Howard, 59 Mich App 548, 552; 229 NW2d 841 (1975), this Court explained:
'It is well-settled in Michigan that although chancery-cases are reviewed de novo, this Court does not reverse or modify unless convinced that it would reach a different result had it occupied the position of the trial court. * * * [Citations omitted.]
'It is also true that, whether the action is in law or equity, principal regard must be given to the special opportunity of the trial court to judge the credibility of witnesses, and findings of fact will not be set aside unless they are clearly erroneous. [GCR 1963, 517.1.] * * * [Citations omitted.]’
"A finding is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed after reviewing the entire record, although there is evidence to support the finding. Tuttle v Department of State Highways, 397 Mich 44; 243 NW2d 244 (1976).” Mazur v Blendea, 74 Mich App 467, 469; 253 NW2d 801 (1977). See also Barnett v International Tennis Corp, 80 Mich App 396, 403-404; 263 NW2d 908 (1978).

Appellant raises two issues, one concerning the trial court’s denial of interest on the judgment from the date of filing the complaint, and second the propriety of the trial court’s deletion of the third director, Mr Keating, from the judgment. Defendants, on cross-appeal, challenge the propriety of the trial court’s award of attorney fees against the defendant corporation. A review of the record and briefs has not convinced us that reversible error occurred. We affirm.

The applicability of the interest statute, MCL 600.6013; MSA 27A.6013, was asserted by plaintiff on the date of entry of the final judgment below and was decided by the trial judge in defendants’ favor. The statute provides:

"Interest shall be allowed on any money judgment recovered in a civil action, such interest to be calculated from the date of filing the complaint at the rate of 6% per year unless the judgment is rendered on a written instrument having a higher rate of interest in which case interest shall be computed at the rate specified in the instrument if such rate was legal at the time the instrument was executed. In po case shall the rate exceed 7% per year ijfter the date judgment is entered. In the discretion of the judge, if a bona fide written offer of settlement in a civil action based on tort is made by the party against whom the judgment is subsequently rendered and the offer of settlement is substantially identical or substantially more favorable to the prevailing party than the judgment, then no interest shall be allowed beyond the date of written offer of settlement is made.”

The primary question is whether plaintiffs judgment constituted a "money judgment”, thus necessitating that interest be awarded from the date of filing the complaint.

A "money judgment” is defined in Black’s Law Dictionary (4th ed), p 980, as:

"One which adjudges the payment of a sum of money, as distinguished from one directing an act to be done or property to be restored or transferred.”

The dictionary cites a Federal case from Michigan, Fuller v Aylesworth, 75 F 694 (CA 6, 1896).

The trial court has a great deal of discretion and flexibility under the Michigan Business Corpora-: tion Act to effect a remedy in a shareholder’s action. MCL 450.1825; MSA 21.200(825). Here, the trial court expressly denied dissolution as a proper remedy on the facts, finding it to be too harsh. MCL 450.1825(1); MSA 21.200(825)(1). The court relied on MCL 450.1825(2)(d); MSA 21.200(825)(2)(d), which provides:

"In an action filed by a shareholder to dissolve the corporation on a ground enumerated in subsection (1), the circuit court upon establishment of such ground may make such order or grant such relief, other than dissolution, as it deems appropriate, including, without limitation, an order providing for any of the following:
(d) Purchase at their fair value of shares of a shareholder, either by the corporation or by the officers, directors or other shareholders responsible for the wrongful acts.”

In his opinion, dated May 23, 1975, the learned trial judge encouraged the parties to agree upon an appraiser and a method and criteria for establishing the value of plaintiffs stock. Counsel stipulated to the value of $55,000 rather than go through an appraisal process with a third party. The stipulated agreement was entered as a final judgment by the trial court on January 9, 1976. Interest was to accrue from the date of judgment.

The trial court, in ruling on the plaintiffs motion for interest from the date of filing the complaint under the statute, noted that while the judgment involved money, it was not solely a "money judgment”. It was essentially part of an equitable remedy. We agree. The judgment ordered defendants to restore Mrs. Moore to her position prior to the oppressive acts which began in 1969. It required defendants to purchase the stock from Mrs. Moore at the value of the stock in 1969. It is not a mere money judgment as that term is defined in Black’s Law Dictionary, supra. The judge held:

"So, the way I look upon it, the money phase of the disposition was one of a number of alternative remedies upon the parties and the Court. The money award was only one phase of the whole of the dispute, which really was how to save the corporation, as I viewed it — how to allow the remaining stockholders to go ahead and, hopefully, make a success of the venture; how to get the minority stockholder out, who was a dissident element —finding no reproach toward her — but, as a matter of fact, she became a dissenting and dissident element in the picture.”

Furthermore, the trial court was informed that Mrs. Moore had been offered a buy-out in 1969 at a figure approximating the appraisal figure, and in the same amount that another equal shareholder was paid at the time. Mrs. Moore refused, demanding $100,000.

We agree that under all the facts presented the judgment given is not a "money judgment” as that term is used in the statute.

Plaintiff next argues that the trial court erred in deleting the third director, Mr. Keating, from the judgment, which required two of the three directors to purchase plaintiffs stock because of oppressive actions toward her.

After reviewing the entire record and the opinion of the trial court, it is clear that defendants Carney and Rebandt were the individuals actively involved in oppressive acts against Mrs. Moore. The record suggests that Keating was, in fact, a passive director. On this record, we are not convinced that we would reach a different result than the trial court, and are not left with a definite and firm conviction that a mistake has been committed. We also note that plaintiff does not claim that Mr. Carney and Dr. Rebandt are uncollectible, therefore, we fail to see any prejudice to the plaintiff because of the dismissal of Mr. Keating. If anyone is harmed, it would appear to be Mr. Carney and Dr. Rebandt, but they are silent.

Finally, defendants’ cross-appeal contends that the trial court erred in awarding attorney fees against the defendant corporation. Defendants argue that no real benefit inured to the corporation as a result of this suit, and that under the statute attorney fees are not to be awarded for recovery by an individual shareholder.

Under the statute, MCL 450.1493(1); MSA 21.200(493)(1), attorney fees may be awarded if an action "brought in the right of the corporation is successful” and the corporation is thus benefited by the suit. That section "does not apply to a judgment rendered for the benefit of an injured shareholder only and limited to a recovery of the loss or damage sustained by him”. Defendants’ argument here is that the .judgment rendered is for the benefit of Mrs. Moore only and that the corporation did not benefit at all.

The trial court found a benefit to the corporation as a result of the successful action by plaintiff, noting that it "might be viewed as a negative benefit of a sort, but * * * a benefit nonetheless”. Because of the successful prosecution of the suit, defendants Rebandt and Carney were denied fees for services charged the corporation of approximately $59,000. Also the judgment denied dissolution of the corporation which may be considered a benefit of sorts.

The request for attorney fees was supported by an office business entry printout, establishing a fee of $19,056.50 plus $3,250 in consultation fees. The trial court noted that the case was complex dealing with research on novel questions under a new statute. The fee of $17,000 is not unreasonable per se and we find no abuse of discretion in such an award.

Affirmed. Costs to defendants Carney and Rebandt only.


author: M. J. Kelly, P. J. R. M. Maher, J.

text:
    PEOPLE v BENNETT
    Docket No. 27761.
    Submitted February 7, 1978, at Detroit.
    Decided July 5, 1978.
    Luther Bennett was convicted of manslaughter in the Recorder’s Court for the City of Detroit, Henry Heading, J. His conviction occurred in a retrial which took place 32 months after an earlier prosecution ended in a mistrial. Defendant appeals, claiming the denial of his right to a speedy trial. Held:

    Four factors are used to balance a defendant’s claim that he has been denied a speedy trial: length of delay, reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Prejudice to the defendant is presumed after a delay of 18 months. Such presumption is conclusive unless the prosecutor demonstrates a lack of prejudice to the defendant. An affirmative demonstration of prejudice to the defendant is not necessary to prove a claim of denial of a speedy trial. Unexplained delays in a defendant’s trial are attributable to the state. The defendant’s right to a speedy trial was violated, since the delay hindered both sides in their efforts to strike a fair balance wherein all the relevant facts could be brought to light. A trial judge may not participate in plea bargaining negotiations.
    Reversed and defendant discharged.
    R. M. Maher, J. concurs in the result reached by the majority but would hold that a trial judge may participate in plea bargaining negotiations.
    Opinion of the Court
    1. Constitutional Law — Criminal Law — Speedy Trials.
    The right of an accused to have a speedy criminal trial is guaranteed by both the Umited States and Michigan Constitutions (US Const, Am VI Const 1963, art 1, § 20).

      References for Points in Headnotes
    [1, 4, 6-7] 21 Am Jur 2d, Criminal Law §§ 241, 242, 246, 247.
    Accused’s right to speedy trial under Federal Constitution-Supreme Court cases. 21 L Ed 2d 905.
    [2-7] 21 Am Jur 2d, Criminal Law §§ 251-254.
    Waiver or loss of accused’s right to speedy trial. 57 ALR2d 302.
    [5] 21 Am Jur 2d, Criminal Law § 245.
    [8, 9] 21 Am Jur 2d, Criminal Law § 485.

      2. Constitutional Law — Criminal Law — Speedy Trial — Balancing Test — Factors.
    A balancing test is employed in attempting to resolve whether a defendant’s right to a speedy trial has been violated; such test considers the following four factors: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.
    3. Constitutional Law — Criminal Law — Speedy Trial — Delay— Mistrials — Retrials—Prejudice—Presumptions.
    Prejudice to a criminal defendant is presumed after a delay of 18 months in bringing the defendant to trial or where such time elapses between a mistrial and the defendant’s retrial; such presumption is conclusive unless the prosecutor is able to demonstrate a lack of prejudice to the defendant.
    4. Constitutional Law — Criminal Law — Trial—Speedy Trials— Prejudice.
    An affirmative demonstration of prejudice to the defendant is not necessary to prove a claim of denial of the constitutional right to a speedy trial.
    5. Constitutional Law — Criminal Law — Trial—Unexplained Delays — Speedy Trials.
    Unexplained delays between a mistrial and the retrial of a criminal defendant are attributable to the state where the defendant claims the denial of his right to a speedy trial.
    6. Constitutional Law — Criminal Law — Speedy Trials — Assertion of Right.
    A criminal defendant’s assertion of his right to a speedy trial is only one of the factors to be considered in determining a denial of a speedy trial claim, although it is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.
    7. Constitutional Law — Criminal Law — Speedy Trials — Facts— Truth-Seeking.
    A criminal defendant’s right to a speedy trial has been violated where a delay in his trial hinders both sides in their efforts to strike a fair balance wherein all the relevant facts can be brought to light; the purpose of a trial as a truth-seeking device is thereby thwarted for both sides.

      8. Criminal Law — Trial—Plea Bargaining Negotiations — Judge’s Participation.
    A trial judge may not participate in plea bargaining negotiations.
    Concurrence in part, Dissent in part by R. M. Maher, J.
    9. Criminal Law — Trial—Plea Bargaining Negotiations — Judge’s Participation — Court Rules.

      A trial judge may participate in plea bargaining negotiations, however, excessive entanglement by the judiciary and possible retaliatory behavior, or even the appearance of it, cannot be tolerated (GCR 1963, 785.7[2][a], [b]and[4][b]).

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

      Jane Burgess, for defendant.
    Before: M. J. Kelly, P. J., and T. M. Burns and. R. M. Maher, JJ.
   M. J. Kelly, P. J.

Defendant was charged with first-degree (premeditated) murder, MCL 750.316; MSA 28.548, and convicted in October, 1975 by a Detroit Recorder’s Court jury of manslaughter, MCL 750.321; MSA 28.553. (An earlier prosecution in February, 1973, ended in a mistrial.) A co-defendant, Samuel Daniels, was acquitted. Defendant was sentenced to 5 to 15 years in prison, with 228 days credit for time served and now appeals of right.

Defendant argues that he was denied his right to a speedy trial, US Const, Am VI, Const 1963, art 1, § 20, because of a 32-month delay between the mistrial and retrial. We agree.

In Barker v Wingo, 407 US 514, 530; 92 S Ct 2182, 2192; 33 L Ed 2d 101, 117 (1972), the United States Supreme Court adopted a balancing test of four factors for determining whether there has been a violation of the right to a speedy trial. The four factors are: (1) Length of delay; (2) Reason for the delay; (3) Defendant’s assertion of his right; and (4) Prejudice to the defendant. The Michigan Supreme Court has adopted the same test. People v Grimmett, 388 Mich 590, 601-606; 202 NW2d 278 (1972). See also People v Debreczeny, 74 Mich App 391, 396; 253 NW2d 776 (1977).

The record establishes a delay of about 32 months between the mistrial and defendant’s retrial. This delay is much too long absent a proper explanation. People v Chism, 390 Mich 104, 112; 211 NW2d 193 (1973). Prejudice is presumed after an 18-month delay. People v Grimmett, supra, at 606. The presumption is conclusive unless the prosecutor is able to demonstrate lack of prejudice to the defendant. Even so, "an affirmative demonstration of prejudice [is not] necessary to prove a denial of the constitutional right to a speedy trial”. Moore v Arizona, 414 US 25, 26; 94 S Ct 188, 189; 38 L Ed 2d 183, 185 (1973), citing Barker v Wingo, supra.

A review of the instant record indicates that the prosecution has caused, or has not been able to adequately explain the reason for, the delay of at least 20 of the 32 months. Unexplained delays are attributable to the state. People v Giles, 48 Mich App 466, 469; 210 NW2d 515 (1973).

Defendant did not expressly assert his right to a speedy trial. This is only one factor to be considered in determining a denial of a speedy trial claim, although it is "entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right”. Barker v Wingo, supra, at 531-532. The record indicates that defendant was not responsible for at least 20 of the 32-month delay, and thus, any reliance on defendant’s failure to assert his right as being a waiver of that right is greatly reduced. Barker v Wingo, supra, at 529. We note some pertinent language from the Barker court which further dilutes the impact of defendant’s failure to assert his right to a speedy trial in the instant case:

"A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover * * * society has a particular interest in bringing swift prosecutions, and society’s representatives are the ones who should protect that interest.” (Footnotes omitted.) 407 US at 527.

Furthermore, a couple of defense witnesses, who had testified during the mistrial that defendant’s. killing of the victim was justified or mitigated, became unavailable at the retrial. While their mistrial testimony was read to the jury at the retrial it likely was less effective than listening to live testimony. On the other hand, a prosecution witness who was the only one to claim to have seen the defendant shoot the victim was also unavailable at the retrial.

These are two examples of where the parties were both benefitted and prejudiced by the delay.

It is not our function to balance the sides and see which side benefitted the most in determining whether to find a violation of defendant’s right to a speedy trial. It is enough to find that both sides are hindered in their efforts to strike a fair balance wherein all the relevant facts can be brought to light. The purpose of a trial as a truth-seeking device is thwarted for both sides. If convicted it will be difficult to vindicate the process for the defendant who suffers from any inadequacy in the fact-finding function of the trial proceeding.

Therefore, we hold that the defendant has been deprived of his right to a speedy trial. Defendant’s conviction is reversed and he is discharged.

We briefly discuss two other issues which deserve to be mentioned.

Defendant’s argument that his retrial after a mistrial because of a hung jury placed him in double jeopardy is erroneous for the reasons set forth in People v Hoffman, 81 Mich App 288; 265 NW2d 94 (1978), citing United States v Dinitz, 424 US 600; 96 S Ct 1075; 47 L Ed 2d 267 (1976).

Finally, we strongly disapprove of the trial court’s offer of probation to the defendant in the plea negotiations. The trial court should not actively participate in the plea bargaining negotiations. See People v Earegood, 12 Mich App 256, 265-267, 277; 162 NW2d 802 (1968), rev’d on other grounds, 383 Mich 82; 173 NW2d 205 (1970), ABA Guilty Plea Standard 3.3(a). It is our opinion that the appearance of impartiality requires a passive role in the plea bargaining process.

While the Michigan court rule does not expressly prohibit the trial judge from participating in the plea bargaining negotiations, GCR 1963, 785.7(2)(a),(b) and (4)(b), we think the better rule is found in Rule 11 of the Federal Rules of Criminal Procedure which expressly prohibits the court from participating in plea negotiations. FR Crim P 11(e). See generally United States v Werker, 535 F2d 198 (CA 2, 1976), Griffith v Wyrick, 527 F2d 109 (CA 8, 1975).

Reversed and the defendant is discharged.

T. M. Burns, J., concurred.

R. M. Maher, J.

(concurring in part, dissenting in part). I concur in the result reached by my colleagues, but cannot agree with their comments as to trial court participation in plea negotiations. In this case, I disapprove of the manner in which the trial court offered probation to the defendant in the plea negotiations and subsequently expressed his strong displeasure that the defendant did not accept the bargain.

The court rules do, however, permit the judge to participate in the plea taking negotiations, GCR 1963, 785.7(2)(a), (b) and (4)(b), and I do not think it impermissible for the judge to participate even more extensively than is mentioned in the rules. There is nothing forbidding it. But excessive entanglement by the judiciary and possibly retaliatory behavior, or even the appearance of it, I must agree, cannot be tolerated.

       The Barker Court stated: "We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.”