People v. Ali

328 Mich.App. 538

938 N.W.2d 783

PEOPLE of the State of Michigan, Plaintiff-Appellant,

v.Shelton ALI, Defendant-Appellee.

No. 341121

Court of Appeals of Michigan.

Submitted March 13, 2019, at Detroit

Decided June 4, 2019, 9:05 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Toni Odette, Assistant Prosecuting Attorney, for the people.

Michael S. Cafferty & Associates, PC (by Michael S. Cafferty ) and Leslie E. Posner, Detroit, for defendant.

Before: Murray, C.J., and Gadola and Tukel, JJ.

Murray, C.J.

The dispositive issue in this appeal is whether a trial court's specific findings of fact in a child protective proceeding conducted under the juvenile code have "cross-over" collateral estoppel effect in a subsequent criminal proceeding against an individual who was a party to the child protective proceeding. Although the Supreme Court strongly discouraged the use of collateral estoppel between these types of proceedings, it did so in dicta, People v. Gates , 434 Mich. 146, 157, 161-162, 452 N.W.2d 627 (1990), and since then no Michigan court has made a definitive holding on the issue. We do so now and hold that factual findings made by a court in a child protective proceeding do not have collateral estoppel effect in a subsequent criminal proceeding. As a result, we reverse and remand for further proceedings.

I. BACKGROUND

Defendant's daughter came to the attention of the Department of Health and Human Services (DHHS) after a Child Protective Services (CPA) referral was made alleging that defendant had sexually assaulted her in a motel room. Proceedings to terminate defendant's parental rights to the child subsequently commenced in the juvenile court. At the termination hearing, defendant's attorney argued that the child "concoct[ed]" the allegations against defendant to avoid being sent to boot camp for prior misbehavior. Both the child and her mother testified at the termination hearing. Defendant did not testify, but a letter he had written was admitted as an exhibit.

The trial court found that a preponderance of the evidence supported its exercise of jurisdiction over the child because defendant had engaged in conduct that exceeded the normal bounds of discipline, but the court found that petitioner failed to establish by clear and convincing evidence that the child was sexually assaulted. Therefore, the court denied the request to terminate defendant's parental rights. The court then entered a dispositional order finding that the child was not at risk of harm, releasing the child to the custody of her mother, and terminating its jurisdiction over the case.

Approximately three months after the final order was entered in the child protective proceeding, the prosecution charged defendant with two counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(b)(ii ), and one count of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(b)(ii ). The child was the only witness at the preliminary examination, and the district court bound defendant over as charged. In the circuit court,¹ defendant filed a motion to dismiss all criminal charges based on collateral estoppel, arguing that the circuit court's findings in the previous child protective proceedings precluded the state from criminally prosecuting him. The circuit court, properly focusing on Gates , nevertheless held that collateral estoppel applied because the same issue was litigated between the same parties in the child protective proceeding. It therefore entered an order dismissing the criminal charges.

II. COLLATERAL ESTOPPEL

This Court reviews "a trial court's decision on a motion to dismiss charges against a defendant for an abuse of discretion."

People v. Nicholson , 297 Mich. App. 191, 196, 822 N.W.2d 284 (2012). We review de novo the application of the doctrine of collateral estoppel. People v. Trakhtenberg , 493 Mich. 38, 47, 826 N.W.2d 136 (2012).

"Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding." Porter v. Royal Oak , 214 Mich. App. 478, 485, 542 N.W.2d 905 (1995). "Collateral estoppel is a flexible rule intended to relieve parties of multiple litigation, conserve judicial resources, and encourage reliance on adjudication." Rental Props. Owners Ass'n of Kent Co. v. Kent Co. Treasurer , 308 Mich. App. 498, 529, 866 N.W.2d 817 (2014). Although in most cases parties seek to apply collateral estoppel in the context of two civil proceedings, our Supreme Court has recognized "the application of collateral estoppel in the civil-to-criminal context." People v. Zitka , 325 Mich. App. 38, 44-45, 922 N.W.2d 696 (2018) (quotation marks and citation omitted). That recognition of what is sometimes referred to as "cross-over" collateral estoppel has not been much more than that; there has never been anything close to a ringing endorsement of the concept by any Michigan court. Instead, the Supreme Court has cautioned against its use. See id. , and the cases cited therein.

Gates provides the most recent and relevant discussion of the issue by the Supreme Court and supports the proposition that collateral estoppel should not be applied in this context in light of significant public-policy concerns.² In Gates , 434 Mich. at 150-151, 452 N.W.2d 627, the defendant alleged that collateral estoppel barred a criminal prosecution for sexual misconduct involving his three-year-old child, because a child protective proceeding based on the same conduct resulted in a general jury verdict of "no jurisdiction." Thereafter, a circuit court dismissed criminal charges against the defendant on grounds that the jury verdict in probate court determined " ‘that the prosecution had not proved a case of sexual abuse by a preponderance of the evidence.’ " Id. at 154, 452 N.W.2d 627. The Supreme Court, however, held that collateral estoppel did not bar the subsequent criminal prosecution because the verdict of "no jurisdiction" did not " ‘necessarily determine[ ]’ " the guilt or innocence of the defendant, id. at 150-151, 158, 452 N.W.2d 627, as there were other possible reasons the jury could have returned its verdict of no jurisdiction, id. at 160, 452 N.W.2d 627.

Despite its ruling that collateral estoppel was factually inapplicable, the Gates Court went on to determine whether as a policy matter cross-over collateral estoppel should be applied between child protective proceedings and criminal cases. The Court warned against it, stating that "the purposes of a child protective proceeding and a criminal proceeding are so fundamentally different that application in this instance of collateral estoppel would be contrary to sound public policy."

Gates , 434 Mich. at 161, 452 N.W.2d 627. Specifically, the Court pointed out that "[t]he purpose and focus of a neglect or abuse proceeding in the juvenile division of the probate court is the protection of children," while "the focus of a criminal proceeding is on the guilt or innocence of the accused." Id. at 161-162, 452 N.W.2d 627. Because of these divergent interests, the Court concluded that cross-over collateral estoppel should not apply between child protective proceedings and criminal proceedings, as permitting its use "would invite the risk that the proper functions of the two proceedings would be compromised." Id. at 162, 452 N.W.2d 627.

The Gates Court was also concerned with how use of the doctrine would impact the bringing of criminal charges:

To avoid the effect of collateral estoppel, if it were to be made applicable, a prosecutor would be required to develop criminal charges indicated by the petition and bring them to trial before a determination concerning jurisdiction could be reached in the probate proceeding. However, the burden of proving criminal charges beyond a reasonable doubt, added to problems presented by conflicting procedural and scheduling requirements of the two courts, would make it extremely difficult, and often impossible, for the criminal charges to be brought to trial in circuit court in advance of the jurisdiction determination in probate court.

Thus, the petitioner or the prosecutor would face an unfortunate choice that is not in the public interest: whether to proceed on the petition in probate court because of concern for the child, or to delay the probate proceeding because of concern that a verdict of nonjurisdiction would preclude criminal prosecution of the accused. [ Id. at 163, 452 N.W.2d 627.]

As a result, the Court was "persuaded by public policy considerations that such an election between criminal and child protective proceedings should not be judicially imposed through the application of collateral estoppel." Id. Although the Court had already concluded that as a matter of fact collateral estoppel was inapplicable to the case, the Gates Court labeled its discussion about the policy implications as a "conclusion that collateral estoppel should not apply ...."

Id. at 163-164, 452 N.W.2d 627 (emphasis added). Perhaps this phraseology was an attempt to negate any concern that the policy discussion was merely dictum, but given its previous conclusions regarding the inapplicability of the doctrine under the facts, any additional reasoning to reject its application seems to have been unnecessary. See Pew v. Mich. State Univ. , 307 Mich. App. 328, 334, 859 N.W.2d 246 (2014) ("Dictum is a judicial comment that is not necessary to the decision in the case.").

But even if it is dictum, and we think it is, it is persuasive dictum given that (1) it is from the Supreme Court, and (2) it is thorough, definitive, and convincing. See Mount Pleasant Pub. Sch. v. Mich. AFSCME Council 25 , 302 Mich. App. 600, 610 n. 2, 840 N.W.2d 750 (2013). The concerns...