A jury convicted plaintiff Dennis Lee Tomasik of sexual assault, but following reversal by our Supreme Court, plaintiff received a new trial and was acquitted. Plaintiff sued the state of Michigan under the Wrongful Imprisonment Compensation Act, but the Court of Claims determined that he was not eligible for compensation because the Supreme Court's reversal was not based on new evidence. He challenges this holding, and thus we are faced with the question of whether plaintiff has satisfied all of the conditions for relief under the act?
This seemingly straightforward question implicates principles of separation of powers, law of the case, expression of judicial holdings, and judicial immunity. As explained, we conclude that the Legislature and Supreme Court both meant what they plainly said, and this is fatal to plaintiff's claim for relief.
Plaintiff sued the state of Michigan for compensation under the Wrongful Imprisonment Compensation Act (WICA), MCL 691.1751 et seq. The underlying criminal case has a lengthy appellate history, including three decisions of this Court and three decisions of our Supreme Court. Because resolution of this appeal hinges in part on whether new evidence resulted in the Supreme Court's reversal of plaintiff's criminal conviction, we will discuss the criminal case in detail. For clarification, although plaintiff was a "defendant" in the underlying criminal case, we refer to him as "plaintiff" even when discussing the criminal case.
In 2007, plaintiff first stood trial for allegedly committing repeated acts of sexual assault against a minor, T.J. At trial, T.J. claimed that plaintiff sexually assaulted him approximately eight years earlier, when T.J. was six years old. The jury convicted plaintiff of two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a), and the trial court sentenced him to serve concurrent terms of 12 to 50 years in prison.
During pretrial, plaintiff had sought disclosure or in-camera review of "any and all" of T.J.'s counseling records. Plaintiff asserted that T.J. had been in counseling since the age of five and had seen approximately eight counselors over the years. Plaintiff also asserted that when T.J. was 11, the latter had acted out sexually against a cousin. The trial court granted the motion in part, but limited the discovery to a one-year period related to the alleged sexual activity with the cousin. People v. Tomasik, unpublished per curiam opinion of the Court of Appeals, issued January 26, 2010 (Docket No. 279161), pp. 11-12.
After his convictions, plaintiff appealed to this Court and, as part of his appeal, moved for a remand to the trial court for a hearing under People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973). The Court granted his motion and ordered the trial court to conduct an evidentiary hearing "to determine whether trial counsel rendered ineffective assistance of counsel when he failed to produce expert evidence to rebut the prosecutor's experts and failed to call [plaintiff] as a witness on his own behalf." People v. Tomasik, unpublished order of the Court of Appeals, entered November 6, 2008 (Docket No. 279161).
While awaiting the Ginther hearing, plaintiff moved the trial court for a new trial and for disclosure of "any and all" of T.J.'s counseling records. The trial court denied the motion for a new trial, but it
The case then returned to this Court for decision. Plaintiff made several claims on appeal, including: (1) the trial court erroneously admitted a recording of a police detective's statements that expressed an opinion of plaintiff's guilt and vouched for the victim's credibility; and (2) the trial court erroneously refused to conduct an in-camera review of all of T.J.'s counseling records. Tomasik, unpub. op. at 2-15. On the question of counseling records, the Court reviewed the trial court's decision under the standard articulated in People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557 (1994). The Court affirmed the trial court's decision with respect to the counseling records, reasoning: "Given that [plaintiff] wanted the trial court to review all of T.J.'s counseling records and to disclose any evidence which could possibly suggest a false allegation by T.J., the trial court's decision that [plaintiff] was on a `fishing expedition' fell within the range of reasonable and principled outcomes." Id. at 15. The Court rejected the other arguments and affirmed plaintiff's convictions. Id.
On application for leave to appeal, our Supreme Court vacated the judgment of this Court and remanded the case to the trial court for further proceedings under Stanaway. The order of remand specifically stated that "the trial court shall disclose to the [plaintiff] the March 26, 2003, report authored by Timothy Zwart of Pine Rest Christian Mental Health Services and the March 1, 2003, form authored by Denise Joseph-Enders. After disclosing these documents to the [plaintiff], the trial court shall permit the [plaintiff] to argue that a new trial should be granted." People v. Tomasik, 488 Mich. 1053, 1053-1054, 794 N.W.2d 620 (2011).
On remand, the trial court disclosed to plaintiff the documents identified in the Supreme Court's 2011 order. Plaintiff then filed a motion for new trial, the trial court denied the motion, and plaintiff appealed. This Court described the new evidence that formed the basis of the motion for new trial, as well as the trial court's rationale for denying it:
This Court concluded that the new evidence was "cumulative to the evidence presented during the trial" and that the documents "were not material because there is not a reasonable probability of a different result if the documents would have been disclosed to [plaintiff] during trial." Id. at 5. On the remaining claims, the Court adopted the reasoning of its original opinion in Tomasik and affirmed plaintiff's convictions and sentence. Id. at 5-6.
Plaintiff again sought leave to appeal in our Supreme Court. Rather than granting leave, the Supreme Court vacated in part the judgment of this Court. In doing so, it further ordered:
On second remand, this Court again affirmed plaintiff's convictions and sentences. People v. Tomasik (On Second Remand), unpublished per curiam opinion of the Court of Appeals, issued April 22, 2014 (Docket No. 279161), 2014 WL 1614469, rev'd in part 498 Mich. 953, 872 N.W.2d 488 (2015). In that decision, the panel considered whether the trial court abused its discretion by denying plaintiff's motion for a new trial "based on newly discovered impeachment evidence." Id. at 12. The Court concluded that the trial court had not abused its discretion:
As the panel noted, the first trial amounted to a "credibility contest" between plaintiff and T.J. Id. at 14. Plaintiff had several witnesses testify on his behalf and, while he did not testify on his own behalf, the jury heard the unredacted interview plaintiff had with police, during which plaintiff made repeated, forceful denials of any wrongdoing involving T.J.
After being denied relief, plaintiff filed a third application for leave to appeal in the Supreme Court. In that application, plaintiff raised several issues: (1) the trial court erroneously admitted the entire recording of plaintiff's interrogation into evidence; (2) the trial court erroneously admitted expert testimony regarding child-sexual-abuse accommodation syndrome into evidence; and (3) the trial court erroneously denied plaintiff's motion for new trial based on newly discovered evidence. The new evidence that plaintiff described in its application for leave to appeal was T.J.'s "treatment and educational records," i.e., the Zwart report and the Joseph-Enders form and questionnaire.
The Supreme Court granted the application for leave to appeal and directed that the parties brief the following issues:
Consistent with the order granting leave to appeal, the new evidence that plaintiff described in his brief was the "two critical counseling records," i.e., the Zwart report and the Joseph-Enders form and questionnaire.
Plaintiff was retried in the Kent Circuit Court, before the same judge who presided over his first criminal trial. Plaintiff recalls that the jury in the retrial "heard from 22 witnesses who had never been spoken to or called in the first trial" and saw several new exhibits that had not been presented earlier. The jury unanimously acquitted plaintiff of all charges. Plaintiff was released from prison on March 3, 2016, after 8 years, 11 months, and 3 days of imprisonment.
After his acquittal, plaintiff sued the state in the Court of Claims, seeking compensation under the WICA. In lieu of filing an answer, the state filed a motion for summary disposition under MCR 2.116(C)(7) (claim barred by immunity granted by law). The Court of Claims granted summary disposition to the state under MCR 2.116(C)(10) (no genuine issue of material fact). The Court of Claims held that plaintiff did not satisfy the conditions for relief under Section 5 of the WICA, MCL 691.1755, because our Supreme Court granted plaintiff a new trial on grounds other than new evidence.
Plaintiff appealed.
On appeal, plaintiff argues that the Court of Claims erred in dismissing his action in three separate ways. First, the Court of Claims misread the WICA to require that a plaintiff prove by clear and convincing evidence that, among other things, the conviction was reversed or vacated
Each of these arguments is without merit.
This Court reviews de novo the Court of Claims' decision on summary disposition. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). Summary disposition is appropriate under MCR 2.116(C)(10) when, except as to damages, "there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law."
This Court also reviews de novo questions of statutory construction. People v. Morey, 461 Mich. 325, 329, 603 N.W.2d 250 (1999). Based on several considerations, including the principle of separation of powers, the Court must give effect to the Legislature's intent. Van Buren Co. Ed. Ass'n v. Decatur Pub. Sch., 309 Mich.App. 630, 643, 872 N.W.2d 710 (2015). "The Legislature is presumed to intend the meaning clearly expressed, and this Court must give effect to the plain, ordinary, or generally accepted meaning of the Legislature's terms." D'Agostini Land Co., LLC v. Dep't of Treasury, 322 Mich.App. 545, 554, 912 N.W.2d 593 (2018) (citation omitted). "A statutory provision is ambiguous only if it irreconcilably conflicts with another provision, or when it is equally susceptible to more than a single meaning." People v. Fawaz, 299 Mich.App. 55, 63, 829 N.W.2d 259 (2012) (quotation marks and citation omitted). "Only when ambiguity exists does the Court turn to common canons of construction for aid in construing a statute's meaning." D'Agostini Land, 322 Mich. App. at 554-555, 912 N.W.2d 593.
The Legislature enacted the WICA with the stated intention of "provid[ing] compensation and other relief for individuals wrongfully imprisoned for crimes." 2016 PA 343, title. While plaintiff certainly fits within the set of "individuals wrongfully imprisoned for crimes," the Legislature created a narrower subset of wrongfully imprisoned individuals who actually qualify for compensation. In other words, not all exonerated individuals are eligible for compensation under the WICA.
To qualify for compensation, Section 5 of the WICA requires that an individual show the following by clear and convincing evidence:
These are relatively stringent conditions for relief. If, for example, an individual's conviction is overturned on appeal, and the individual is subsequently acquitted on the basis of something other than new evidence —for example, a coerced confession in the first trial is precluded in the second —then that individual has no recourse under a fair reading of the WICA. Similarly, if an individual is acquitted of a serious charge but remains convicted of a relatively minor charge "arising from the same transaction," then that individual also has no recourse under the act, even if he could make a plausible argument that he was somehow mostly wrongfully imprisoned. These and other examples illustrate that not all exonerated individuals are entitled to compensation under the act.
In this case, whether plaintiff fits within the subset of exonerated individuals who are eligible for compensation depends on the meaning of Subdivision (c) above. Broken out, the subdivision requires that plaintiff prove that "[n]ew evidence":
Grammatically, there is no ambiguity in this statutory language. The noun phrase "new evidence" precedes a series of parallel clauses, each clause beginning with a parallel verb ("demonstrates," "results," and "results"), joined together by the coordinating conjunction "and." The noun phrase is the subject of each of the parallel verbs in Subdivision (c), and the language is structured as a syndeton in which all of the conjuncts (i.e., the three parallel clauses) must be satisfied for the test to be met. Thus, as a matter of straightforward grammar, Subdivision (c) requires an exonerated individual to prove each of the following: (i) new evidence shows that the individual did not commit the crime or participate as an accomplice or accessory; (ii) new evidence results in the reversal or vacation of the charges in the judgment of conviction or a gubernatorial pardon; and (iii) new evidence results in dismissal of the charges or a finding of not guilty after retrial.
Plaintiff does not dispute that the subdivision says this. Instead, plaintiff takes a different tack and argues that, when compared to similar language in the immediately preceding section, an ambiguity arises. Specifically, Section 4 sets out the pleading requirements to initiate an action for WICA compensation. A plaintiff must file a verified complaint, and attached to that complaint, the plaintiff must include, among other things, documentation of the following:
While similar to its counterpart in Section 5, this Subdivision (c) in Section 4, Subsection (1) is different in several material respects. Relevant here, the subdivision requires that a plaintiff attach documentation showing that "[n]ew evidence ... resulted in a reversal or vacation of the judgment of conviction, dismissal of the charges, finding of not guilty, or gubernatorial pardon." This time, the parallel phrases are separated by the coordinating conjunction "or," the conjunction that creates alternatives, meaning that the satisfaction of any one of the conditions will be sufficient to meet the test. Thus, again as a matter of straightforward grammar, a plaintiff must attach to the verified complaint proof that new evidence resulted in at least one of the following: (i) reversal or vacation of the judgment; (ii) dismissal of the charges; (iii) finding of not guilty; or (iv) a gubernatorial pardon. Plaintiff does not dispute this reading either.
Where plaintiff takes issue is in reconciling the two provisions. Specifically, plaintiff argues that the two subdivisions cannot be reconciled, this creates an irreconcilable ambiguity, and because the WICA is intended to compensate those exonerated at trial, any ambiguity should inure to the benefit of exonerated individuals, not the state. In plaintiff's eyes, to obtain relief under the WICA, the individual must show only that "the new evidence must have resulted in a reversal or vacation of the judgment of conviction, or dismissal of the charges or a finding of not guilty or gubernatorial pardon."
We need not reach the equities of what should inure to whom, as there is no ambiguity in the statute in the first instance. As set forth above, each provision makes grammatical sense when considered in isolation, and plaintiff does not dispute this. Moreover, when read as a whole, Potter v. McLeary, 484 Mich. 397, 411, 774 N.W.2d 1 (2009), each provision continues to make grammatical sense, as each provision is part of a section with a separate and distinct purpose. Section 4 sets forth requirements for pleading, while Section 5 sets forth requirements for relief.
On the one hand, it is commonplace to set a relatively low bar for the initial pleading stage, MCR 2.111(B), when notice pleading and key documents are typically sufficient to survive summary disposition under MCR 2.116(C)(8). A plaintiff will not typically have all of the evidence readily at-hand when filing a complaint, hence the opportunity for depositions, interrogatories, requests for admission, and other fact discovery in the mine-run of cases. See MCR 2.301 through MCR 2.316. On the other hand, to obtain relief, notice pleading and a key document are usually not enough. Rather, a plaintiff must present sufficient, reliable evidence on each of the elements of a claim, as well as evidence countering any affirmative defenses. Given this, it was reasonable for the Legislature to have intended to require more at the relief stage than at the pleading stage.
Plaintiff disagrees and asserted at oral argument that because the grounds for the original reversal or vacation and subsequent exoneration must be known to the individual at the time of filing a WICA action, it does not make sense to have requirements for pleading different than those for relief. This argument is belied by plaintiff's request for discovery in this case, see infra Part II.D, as well as the observation that ours is a traditional notice-pleading jurisdiction. At base, plaintiff's argument is one grounded in public
Plaintiff argues in the alternative that even if the WICA requires that the reversal be based on new evidence rather than some other reversible error, he has met this requirement. We turn, therefore, to the Supreme Court's written order of reversal.
Before considering the order, plaintiff asks that we review the oral argument and glean the Supreme Court's rationale for reversing his convictions from the questions asked of the parties as well as the arguments the parties made. The record of a case can certainly provide much-needed context to a dispute, as the "BACKGROUND" section of this opinion illustrates. With that said, it is a well-settled proposition that "a court speaks through its written orders and judgments, not through its oral pronouncements." In re Contempt of Henry, 282 Mich.App. 656, 678, 765 N.W.2d 44 (2009). Plaintiff cites no appellate authority for the proposition that a court speaks through the questions that it asks of the parties during oral argument, let alone through the argument made by the parties during oral argument. We decline plaintiff's invitation to extend the law in this manner.
When our Supreme Court granted plaintiff's application for leave to appeal, it directed the parties to brief three issues. The third issue was "whether the trial court erred in denying the [plaintiff's] motion for a new trial based on the newly disclosed impeachment evidence of the March 26, 2003 report authored by Timothy Zwart and the March 1, 2003 form completed by Denise Joseph-Enders in light of People v. Grissom, 492 Mich. 296, 821 N.W.2d 50 (2012)." Tomasik, 497 Mich. at 978, 860 N.W.2d 620. Thus, the question whether plaintiff was entitled to a new trial on grounds of "new evidence" was fairly before the Supreme Court.
Yet, the Supreme Court did not direct plaintiff to brief any and all "new evidence" that plaintiff might choose to identify. The Supreme Court restricted plaintiff to addressing whether the two specific items of newly disclosed evidence required the grant of a new trial. On appeal in this case, plaintiff attempts to argue a vastly larger universe of "new evidence" that was never referenced by our Supreme Court in its order granting leave to appeal. Plaintiff attempts to include in his argument the testimony of 22 witnesses and several new exhibits that were shown to the jury for the first time on retrial. This other new evidence, however, was not the basis of plaintiff's motion for a new trial in the circuit court, nor was it the basis of plaintiff's multiple appeals and applications for leave to appeal in the Supreme Court.
Even assuming that this other new evidence had been the basis of plaintiff's various appeals and applications, it was not the basis of the reversal of his convictions, and this is the critical phase for purposes of his WICA claim. In its order granting plaintiff's motion for a new trial, the Supreme Court plainly stated that a new trial was warranted because the "trial court abused its discretion by admitting the recording of the [plaintiff's] interrogation." Tomasik, 498 Mich. at 953, 872 N.W.2d 488. The Supreme Court further specified, "[W]e decline to address the other issues presented in our order granting leave to appeal."
Plaintiff asks us to read between the lines of the Supreme Court's order. According to this reading, even if the Supreme Court did not expressly state in its order that new evidence entitled plaintiff to a second trial, the Supreme Court must have based its order on that ground because a "Musser error" does not automatically entitle a party to a new trial. True, a Musser error—when an officer impermissibly expresses an opinion of guilt and vouches for the complainant's credibility—is not a structural constitutional error and, therefore, reversal is not automatic. Musser, 494 Mich. at 348, 363, 835 N.W.2d 319. But such error can rise (and has risen) to the level of plain error affecting a criminal defendant's substantial rights— i.e., reversible error. See id. at 365-366, 835 N.W.2d 319. Moreover, as an intermediate appellate court reviewing an earlier higher court ruling, we are bound by principles of law of the case and judicial hierarchy to follow the plain meaning of the Supreme Court's order. See, e.g., People v. Eliason, 300 Mich.App. 293, 312, 833 N.W.2d 357 (2013); Ashker v. Ford Motor Co., 245 Mich.App. 9, 13, 627 N.W.2d 1 (2001); Rodriguez v. Grand Trunk W. R. Co., 120 Mich.App. 599, 603 n. 3, 328 N.W.2d 89 (1982). Plaintiff's argument, that our Supreme Court must have necessarily relied on the new evidence discussed by plaintiff's counsel at oral argument when it granted plaintiff a new trial, is without merit.
Finally, plaintiff requests that this Court vacate the opinion and order issued by the Court of Claims and remand the case for discovery. Plaintiff maintains that discovery could confirm that the Supreme Court did, in fact, reverse plaintiff's convictions based on new evidence, notwithstanding what the Supreme Court expressed in its written order.
The WICA does provide that the "plaintiff, the attorney general, and the prosecuting attorney for the county in which the plaintiff was convicted may conduct discovery in an action under this act." MCL 691.1754(5). Standing against this is the proposition that no party has an absolute right to conduct whatever discovery the party wants, especially when the record as it stands confirms that no amount of discovery could create a genuine issue of material fact. See, e.g., MCR 2.302(C); Caron v. Cranbrook Ed. Community, 298 Mich.App. 629, 645, 828 N.W.2d 99 (2012); Marketos v. American Employers Ins. Co., 185 Mich.App. 179, 197-198, 460 N.W.2d 272 (1990).
The Supreme Court's order plainly held that the Court would not address whether the trial court erred in denying plaintiff a second trial based on newly discovered evidence. No amount of discovery could alter or enlighten this written holding. In any event, plaintiff's suggestion that discovery could be had from judicial officers and their staff, past and present, on matters of judicial decision-making fails under centuries of precedent. As explained by the federal district court in Bliss v. Fisher, 714 F.Supp.2d 223, 224 (D. Mass., 2010) (cleaned up), "The overwhelming authority. . . makes it clear that a judge may not be compelled to testify concerning the mental processes used in formulating official judgments or the reasons that motivated him in the performance of his official duties." See also United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 S.Ct. 1429 (1941); Fayerweather v. Ritch, 195 U.S. 276, 307, 25 S.Ct. 58, 49 S.Ct. 193 (1904); Robinson v. Comm'r of Internal
Pleading a case under the WICA is different than winning one. To obtain relief, an exonerated individual must prove, among other things, that the conviction was reversed or vacated on the basis of new evidence. Because plaintiff cannot show this, the Court of Claims appropriately granted summary disposition to the state of Michigan, and we affirm.
Cavanagh and Cameron, JJ., concurred with Swartzle, P.J.
