*1 434 Miсh GATES PEOPLE 7). (Calendar 2, Argued May No. Decided 83363. Docket No. Supreme the by Court of 1990. Certiorari denied March — (1990). 25, 1990, 497 US States on June United charged Court with Gregory in the Jackson Circuit was S. Gates involving his minor second-degree sexual conduct criminal Noble, J., charge court, daughter. Russell E. dismissed The ground of no that a verdict on protective proceeding, County child Probate Court Jackson alleged in the circuit court the same facts which was based on proven prosecution a proceeding, had not determined that the evidence, by preponderance of the abuse case sexual pro- prosecution in the precluding of the defendant. it was that the issue had been instructed court bate jurisdiction of the child came within to decide was whether jurisdiction of within and that a child comes by unfit reason home or environment is if the child’s the court part criminality depravity neglect, cruelty, of a or Shepherd P.J., Maher, Appeals, and parent. and The Court of (Docket JJ., opinion per No. Tertzag, curiam K. 98229). affirmed granted appeal, people limited to were leave proceedings, princi- whether, in view of the issue subsequent prosecu- prohibited estoppel ples of collateral tion of defendant. Griffin, joined opiniоn Chief Justice Justice In an ' Riley Supreme Archer, Brickley, Boyle, and Justices Court held: inno- of the defendant’s Because issue prior proceedings necessarily not decided cence was pro- court, principles of collateral do prosecution subsequent of the defendant. hibit the relitigation estoppel precludes an issue in a 1. Collateral between the same different cause action
_subsequent, References 328, 333; 324-326, 2d, 16. Infants § Law §§ Am Jur Criminal Persons; Acquittal; under Abuse of the Index to Annotations See Children; Delinquent Estoppel; Courts and Juvenile Collateral Proceedings. Courts and Probate People v Gates valid, prior proceeding judg- where the final culminated litigated actually ment and the issue determining determined. There is no set formula whether relitigation precluded estoppel. of an issue is collateral A applying critical factor in is the determina- *2 litigants privy party tion of or whether the were to a case, judgment an action in a valid In which was rendered. this analysis prosecutor a functional of the role of the in both proceedings privity is leads conclusion that sufficient to satisfy same-party requirement. the alleged 2. The the issue of defendant’s sexual abuse of his daughter jury probate factual trial in was the focus of the the assuming arguendo fully court. Even issue was that the liti- however, gated, requirement guilt it falls short of the that his necessarily necessarily or innocence be An issue determined. is only judgment. determined if it is essential to a In order for operate estoppel subsequent prosecu- collateral to as a bar to tion, jury proceeding necessarily the in the earlier must have guilty determined that the defendant was of not the offense charged. upon inability 3. The of a court to determine what basis an is, verdict, itself, acquitting jury by enough reached its preclude estoppel. of the defense collateral Collateral applies only prior judgment the of where basis can be clearly, definitely, unequivocally. ascertained A and verdict may conclusively implication. by determine certain issues case, probate jury proceeding this had the in the found that the probate jurisdiction child, court had of the that verdict neces- sarily engaged would have determined that the defendant had alleged. finding in the But conduct because of innocence was jurisdiction, verdict essential to a of no the verdict did not necessarily guilt determine the issue of criminal or innocence. focus, purpose, neglect pro- 4. The of a child оr abuse ceeding probate protection court is the of the child. In contrast, proceeding guilt the focus of a criminal is on the or though innocence of the accused. Even the interests of a child may affected, be such interests are not taken into account in determining guilty charge. whether an accused is of a criminal disparate purposes types proceedings argue The of the two strongly against application estoppel. of collateral Even if it quality procedures is assumed that the and extensiveness of the probate compa- followed and the circuit court are rable, competence probate conclusively of the protective proceeding guilt determine in a child the criminal necessarily compromised by innocence of an accused Mich protection appropriate court on focus children. case, of the defendant’s because the issue 5. In this proceedings prior in the decided was not court, principles do not of collateral prosecution prohibit of the defendant. and remanded. Reversed Cavanagh, dissenting, stated joined by Justice Levin, Justice concluding this Appeals did not err in the Court of estoppel. The prosecution the doctrine is barred assessed in should be record in the entire jurisdiction deciding constituted a verdict of no whether the sexually jury had not that the defendant determination premised properly daughter. cannot That decision abused his single instructions of a sentence on a construction abstract, apart separate the entire from viewed in the
record.
phrasing
language
statute and the
recognition
acts of criminal
that some
instructions reflect
might
home unfit for a child.
not render a
misconduct
parent’s
properly
violation
that whether a
thus
instructed
or environment of
renders the home
of the criminal law
place
to decide
child is for the
an unfit
for the
child
*3
was, however,
case. There
all the evidence
the
the basis of
separate
apart
argument,
from the evidence
and
no evidence or
tending
the act of
had committed
show that the defendant
to
focusing
contrary,
on or
to the
and the evidence
sexual abuse
tending
was or was
the home or environment
to show whether
focusing on
introduced
fit.
no evidence was
not
'Because
fit,
jury
find that the
the
to
the home was
even were
whether
occurred,
majority’s
alleged
the
asser-
in fact
conduct
guilt or innocence
other than the defendant’s
tion that factors
jurisdiction is
may
of the verdict of no
been the basis
have
tenuous at best.
litigated
actually
deciding
of fact was
whether an issue
determined,
record and
court should assess
entire
and
probabilities
question
not
and
on the basis
decide the
possibilities.
renders alternative
the trier of fact/court
Where
law,
would have
either of which
of fact or
determinations
judgment,
supported
determination is essen-
neither
earlier
Where, however, only
judgment.
issue is liti-
one
tial to the
determined,
ordinar-
gated, only
been
one issue could have
issue,
suppose that another
not
ily
to
there is no reason
case,
litigated,
In this
or was determinative.
was determined
litigated
defendant
only
was whether the
issue that was
v Gates
sexually
daughter.
overwhelming probabil-
had
abused his
ity
jury,
is that that was the factual issue determined
people
it
when
rendered its verdict. The
failed to convince the
jury
guilt.
subjected
of the defendant’s
He should not be
relitigation
sexually
of the same basic issue—whether he
mol-
daughter
prosecution.
ested his
a criminal
—in
This case demonstrates that a function of the
proceeding may
parent
in fact be to determine whether a
engaged
respect
in criminal misconduct with
to a child. Where
solely
allegatiоn
is based
on an
parental
child,
respect
criminal misconduct with
the fate
parent
inextricably
of both the child and the
tied to the
parent’s guilt
determination of the
or innocence. The
protect
by acquiring jurisdiction
court cannot act to
the child
child,
parent
guilty
unless the
finds that the
respecting
charged
peti-
criminal misconduct
the child
charged,
purpose sought
tion. Where sexual abuse is
to be
by initiating
abuse/neglect proceeding
only
achieved
can
be
finding by
parent
realized
that the
did in fact
charged
respecting
commit the
act of criminal misconduct
child.
abuse/neglect proceeding,
may
In an
various considerations
jury’s
application
inform the
verdict. The
of the doctrine of
estoppel
particular
not, however,
collateral
case does
depend
may
depends
on what
occur in
It
another case.
on what
case,
particular
only
pled,
occurred in the
case. In this
issue
litigated, and submitted to the trier of fact was the defendant’s
guilt
bearing
any
or innocence. No evidence
other issue was
provided
jury’s
for the
consideration. Collateral
effect
identity,
should not
only
be denied where there is issue
where
pled, litigated,
jury,
one issue was
submitted
because
might
litigated
in another case more than one issue
theory
primary purposes
because there is in
a difference in the
proceedings.
of the two
(1988)
App 384;
168 Mich
Nicholas Smith for Amicus Curiae: Kelley, Attorney General, J.
Frank J. Louis Cleland, Caruso, General, H. Pros- Solicitor Robert ecuting Attorney, LeDuc, L. Assistant and Susan Prosecuting Prosecuting Attorney, for the Attor- Michigan. neys Association of "no J. In view of a verdict Griffin, proceed- protective probate jurisdiction” in a child *5 151 v Gates op Opinion the Court ing, determine whethеr the doc- are to we asked subsequent prose- estoppel bars trine of collateral con- of for criminal sexual the defendant cution duct dant Because allegations against factual defen- where the essentially proceedings the same. in both prior verdict did the the or innocence of the determine principles defendant, of hold the we apply. estoppel do not
i Department Michigan February, 1986, the of petitioned juvenile of division Social Services County jurisdic- Jackson Probate Court take years child, months of a then three ten tion old, allegations defendant, her on basis of petition sexually father, her.1 The had abused petition The initial read: 02-13-86, peti- interviewed [the child] On about was interview, During stated that her father had tioner. this [she] this, stating pee "pee her reeil hard.” While [she] touched petitioner by placing meant both of her hands showed what she using vaginal this her further illustrated while area. [She] by placing sexually explicit male dolls the adult doll’s hand occurred, vaginal . . that when this her . area. stated [She] on she had no on. clothes her that she had not told mother further [She] revealed she of what father her would because was her father’s actions afraid do. filed, Ingham petition represented by After the dss was Prosecutor, petition County to add: who was allowed to amend touching by alleged This the father could be It is also that: being reasonably purposes of sexual arousal or as construed gratification. 27.3178(598.2). 712A.2; As to MCL MSA referred 712A.2(b)(2); amended, scope allegations of MCL fell within the 27.3178(598.2)(b)(2), provided: at which the time MSA section, provided juvenile Except in this as otherwise court shall have: division Mich op Opinion the Court protective proceedings, adjudica child initiated phase tive which leads to determination grounds statutory juvenile whether exist for jurisdiction. grounds If such are found to exist jurisdiction, dispositional and the court assumes proceedings are conducted thereafter to determine any, respect action, what if should taken with seq. child. MCR 5.961 et *6 petition probate At the time the was filed in court, the defendant father had been divorced period from the child’s mother for a of two Although mother, months. the child lived with her joint custody defendant had been awarded of the couple’s legal separation from child the date the February, prior filing in petition, and of the physical custody every
he had of the child following filing peti- However, weekend. tion, the unsupervised visitations the child the suspended. her home of father were petition requested Defendant contested the jury prior trial.3 filed, After the was but jury prose- court, the trial held in the cuting attorney, represented who the dss the probate proceeding, complaint filed a criminal charging warrant Court, Jackson Circuit second-degree defendant with criminal sexual con- (b) proceedings concerning any Jurisdiction in child under 17 years age county: found within the (2) environment, by neglect, Whose home or reason of cru- drunkenness, elty, parent, guardian, criminality, depravity part or on the of a custodian, place or other an unfit is for such child live in. statutory grounds juvenile jurisdiction The court found in 27.3178(598.2). 712A.2; MCL MSA 712A.17; 5.971(B). 27.3178(598.17); See MCL MSA also MCR The oppose petition. child’s mother did not Gates Opinion op the Court alleged in the duct, of the same facts on basis petition.4 probate court place trial which took court testimony 17, 1986, dealt almost 16 and
June allegations exclusively of sexual abuse.5 with the trial, in- At the close jury the issue it was to decide that structed jurisdiction within the child came whether was jury further that The was instructed the court. of a child the child’s if comes within the is unfit for home or environment cruelty, criminality, neglect, reason child depravity parent. part on the of a given form which allowed a verdict The jurisdiction, or off of two verdicts: it to check one jurisdiction. of "no returned a verdict no jurisdiction.” say you judge jury, "Do then asked
upon your you ... is not oath find minor complaint alleged MCL had violated The criminal defendant 28.788(3)(l)(a), 750.520c(l)(a); provides: MSA which (1) person guilty A of criminal sexual conduct *7 degree person engages if in with sexual contact
second following person any and of the circumstances exists: another if (a) person years age. 13 of That other is under 28.788(1)00, 750.520a(k); by "sexual contact” As defined MCL MSA touching intimate of the victim’s or actor’s includes "the intentional parts touching clothing covering immedi- or the intentional parts, intimate if that intentional area of the victim’s or actor’s ate being purpose touching reasonably as for the can be construed gratification.” arousal or sexual "hard” in 5The child testified that defendant touched her living area, causing pain, sleeping vaginal she was once while chair, not her mother. She and that told her to tell room testified defendant times.” Karen her "about five defendant touched [other] DuPage, family therapist, the child that she interviewed a testified that, in her upon request Department and of Social Services opinion, different daughter though when her on a number of had molested father the child been touching his stand denied occasions. Defendant took the and any way, abusing any improper al reаson or her in touching vaginal innocently times her area at he admitted helping take a her use bath. the bathroom Mich Opinion Court neglected a People charged?” minor in the manner and form as the in their
have information in this cause jury responded Each of the members affirmatively. July granted judge 28, 1986,
On
a
judgment notwithstanding
motion for
verdict,
However,
then ordered a new trial.
the Jack-
subsequently
reasoning
son
reversed,
Circuit Court
deprived
probate judge
that the
verdict
grant
such relief.
Thereafter,
the Jackson Circuit Court dismissed
charges against
the criminal
defendant
ground
verdict
prosecution
proved
"that
determined
had
a
preponderance
case of sexual
a
abuse
Appeals
evidence.” The Court of
affirmed. 168
(1988).
App 384;
Mich
ii
estoppel precludes relitigation
Collateral
of subsequent,
issue in a
different cause of action
prior proceed-
between
same
where the
ing
judgment
valid,
culminated
final
and the
(1)
(2)
actually litigated,
issue was
Miller,
determined.7
Jacobson v
41 Mich
93; 1
aрpeal
required
In this
we are not
to consider whether defendant’s
prosecution
Jeopardy
is barred
the Double
Clause of the United
Const,
V,
States Constitution. US
Ams XIV.
estoppel”
preclusion.
We use the term "collateral
to refer to issue
generally
judicata”
This Court
uses the term "res
to refer to what is
preclusion,”
often called
a
preclusive
"claims
which covers the
effect of
judgment upon
subsequent proceeding
on the basis of the same
Chambers,
cause of action. Jones v
353 Mich
A determining whether There is no set formula precluded by relitigation of an issue is according estoppel. Initially necessary, it is Judgments, to establish that Restatement of First proceed- parties in both are involved the same ings.10 party” affirmed the "same This Court last supra requirement 42, Howell, we at wherein prior adjudica limited to the effect of The Second Restatement prior litigation, the effect of a in civil and does not deal with tions ensuing prosecution. subsequent judgment civil made with observation citations to the Second Restatement this in mind. Brenner, estoppel” from efficient term "cross-over We borrow the adjudi issue-preclusive "Crossing-overThe effects of a civil/criminal character, opposite upon 7 N 111L R cation (1987), analyzed. phenomenon is reviewed and in which judgment not conclude of a in an action does The rendition plead parties not adversaries under to the action who are they ings rights did not inter se matters which as to their opportunity litigate, litigate, themselves. between or have an 82, Judgments, pp § 384-385.] [Restatement privity party person is in with the is not a but who A who . . . and entitled the benefits . . . is bound Judgments, p judicata. § 389.] res [Restatement rules of
156
Although plaintiff named-party in the in- People Michigan, stant case is the of the State of practical party against in terms the whom collat- estoppel County eral is asserted is the Jackson represented Department Prosecutor, who also proceeding. of Social Services in the argues though Depart- Defendant that even party ment of Social Services was the nominal in proceeding, department the earlier both the and prosecutor’s office are creatures of the state and thus should be considered to be the same party.11 agree. analysis We A functional of the role prosecutor proceedings appropri- of the in both case, ate in this and leads us to conclude that privity requirement.12 satisfy party” is sufficient to the "same analyzing "actually whether an issue was litigated” prior proceeding, the Court must pled argued. look at more than what has been We must also consider whether the and
party against
whom collateral
is asserted has had a full
izing
and
seems to
administered
enclosed
stead,
defined
decisions
to be
Mich 926
v
Watt,
"multifaceted
One commentator has observed that
This is the
scholarly
618-619
dispositive.
res
governmental
115 Mich
rules ...
have
judicata:
(1982).
(1980).
cases
commentators alike that res
developed
conclusion reached
The Court of
168 Mich
means of resolute
analysis
involving
Reñections on the Parklane
App
as
constituting
172,
determinations
App
and
private
nearly
175;
Appeals
384,
balancing
preclusive
universal
It is clear that the issue of daughter the factual focus of his sexual abuse transcript trial court. testimony of the witnesses reveals that arguments centered on allegation that is also the basis of sexual abuse charge. sense, it can At least in this the criminal sexually the issue whether defendant be said that *10 litigated.” "actually the child was abused governing that the rules do not overlook We proceedings protective child significantly apply the rules which different than discuss, will later such to criminal procedural trials.13 As we doubt about raise serious differences estoppel” applying "cross-over soundness presents. However, we such as this case situations finding our decision on a do not base disadvantaged seriously prosecutor or other- litigate opportunity fair to wise denied a full and the issue of defendant’s alleged criminal conduct. Prosecuting Indeed, in curiae its brief the amicus say Attorneys that it is "fair to Association stated litigated.” fully that the issue was principal to We move now a discussion ground our decision rests. on which
B Assuming arguendo to the issue as which 13 5.972(C)(1) (the proof example, burden of For see MCR 5.965(B) evidence); preponderance probate proceeding MCR is a (6) (a trial); referee, may preside judge, MCR at rather than (statements excep- 5.972(C)(2) not fall within an a child which do circumstances). hearsay under certain rule are admissible tion to the n See also 20.
158
only
judg-
if it is "essential” to the
Judgments,
p
ment. 1 Restatement
2d, §27,
250,
p
h,
comment
258. In order for collateral
operate
subsequent prosecution,
as a bar to a
probate proceeding
in the earlier
must
necessarily have determined that defendant was
guilty
charged
of the criminal sexual conduct
prosecutor’s complaint.
MacKenzie v Union
Co,
Guardian
563,
Trust
581-582;
Mich
(1933).
NW 914
inability
of a court to determine
what
acquitting jury
basis
verdict, is,
reached its
enough
preclude
itself,
the defense of collateral
estoppel. See anno: Modern status of doctrine of
judicata
res
cases,
9 ALR3d
240.
estoppel applies only
Collateral
where the basis of
prior judgment
clearly,
can be ascertained
definitely,
unequivocally.
Dowling
See
States,
United
—;
493 US
668;
110 S Ct
107 L Ed
(1990);
2d
States,
Sealfon v United
575;
US
(1948).
S Ct
determined the verdict should start Gates Opinion op the Court prior record examination with an inquiry "whether in an and culminate grounded jury verdict its have could rational a upon the defendant than that which issue other Id. See also from consideration.” to foreclose seeks Dowling, supra. conclusively may cer- determine a verdict
That implication illustrated can be issues tain proceed- jury in the earlier case. Had instant ing jurisdiction had that found necessarily have child, would that verdict engaged in the had that defendant determined only alleged, that conduct because conduct bringing her within to the submitted basis finding A of the court.14 the petition’s preponder- proved by allegations were to a ver- essential was thus of the evidence ance jurisdiction. dict jurisdiction,” however, does of "no
The verdict opposite support instant In the conclusion. jury: judge case, the stated protection a child this is you I do instruct Therefore, the issue a criminal case. case. It is not but the guilt or innocence is not that of you before juris- within comes issue is whether [the child] the Jackson Division of diction of the Juvenile not consider You should County Probate Court. with anyway involved proceeding to be this [sic] your far as deliberations law so concerned. import that even of that instruction
The clear had violation that a criminal if the believed required child’s find the occurred, it was not to warrant unfit so as to be home or environment course, proof trial heightened in a criminal burden Of asserting prosecutor prevent from would against trial. in the criminal a defendant
160 146 Mich op Opinion the Court jurisdiction.15 finding short, In to a a of innocence was jurisdiction; not essential thus, verdict of no "necessarily the verdict did not issue of criminal determine” the guilt or innocence.16 during Furthermore, the course of the trial jury learned that the child’s mother had exclusive physical custody of the child and that visitations jury might with her father had ceased. The have concluded on that basis alone that the child did require protection court. jury’s rationally Thus the verdict could have been grounds based on other than a determination of allegations defendant’s innocence of the petition.17 jury approved The standard Judges instructions the Probate Michigan point Association of emphatically: make this even more
Instruction 25 legal criminality definition of is the same as the common understanding criminality. Criminality present the word person when a violates the criminal laws of the State of Michigan or of parent’s the United States. Whether a violation Michigan criminal laws of the State of or of the United States renders the home or environment of the child an unñt
place
you
for the child to live in is for
to decide basеd on [sic]
[Owens,
all of the evidence in
jury
the case.
Juvenile
instruc-
tions,
1989).
(April,
Emphasis
Inter-com 33
added.]
dangers
We are
"hypertechnical”
aware of the
analysis
of a
what has
warned of
judgment,
been
danger
determined
Supreme
Ashe,
the United
supra
States
Court in
at 444.
case,
In the instant
determine the issue of criminal
our
conclusion that
verdict did not
or innocence is not
based
issue,
fact that the verdict did not address that
but on the fact the
instruction to the
made clear that a determination of criminal
guilt or innocence was not essential to its verdict.
Supreme
Kentucky applied
Court of
reasoning
similar
in its
rejection
Gregory
Kentucky,
III
*13
guilt
that defendant’s
conclusion
Apart
from our
determined
innocence was not
or
proceeding,
verdict
a
protective
proceeding
of a child
purposes
different
fundamentally
so
proceeding
estop-
of collateral
in this instance
application
public policy.18
to sound
contrary
would be
pel
neglect
abuse
and focus of
purpose
of the
division
juvenile
proceeding
end,
To this
of children.
protection
is the
who has
anyone
initiated by
be
proceedings may
the court’s
is in need of
that a child
information
child,
protection of
To maximize
protection.19
interests
safeguard the
the same time
and at
peti-
of a
subject
are the
whose children
parents
expedited proceed-
for
tion,
provide
rules
the court
court,
criminality Gregory’s
the first
which
actions was not before
children,
well-being
charged generally
and be-
with the
express findings
not
sexual abuse were
court’s
cause the first
essential to its decision.
18
exception
recognized by
public policy
1 Restatement
is
Such a
2d, 28, p
Judgments,
273:
§
actually litigated
Although
and determined
is
issue
judgment,
is essential
and final
and the determination
valid
the
subsequent
judgment, relitigation
action
of the issue
following
precluded
parties
circum-
is not
between
stances:
(5)
convincing need for a new determina-
is a clear and
There
(a)
impact
potential adverse
of
or the interests of
tion of the issue
the determination on
becausе
public
interest
....
persons
in the initial action
not themselves
335;
815;
222
Fagan,
489 NE2d
66 NY2d
NYS2d
See State v
(1985),
(1984),
49;
recent
Alvey,
ceedings argue against strongly application the estoppel. collateral If we were to endorse the proposition jurisdiction that a determination of no protective proceeding operates in a child to collat- erally estop charges, criminal we would invite the proper proceed- risk that ings the functions of the two compromised. would be Typically, protective a child is initi- petition person ated of a other than the petition If a is filed and the child has been removed from the home, preliminary hearing place a twenty-four must take within 5.965(A). home, hours. MCR If the child remains outside the the trial place forty-two days. must take within If the child has not been taken custody, 5.972(A). into court the deadline for trial is six months. MCR v Gates op Opinion the Court petition however, the filed, prosecutor. prosecutor is Once request of the at be available must legal petition suffi- to review proceedings. appear MCR ciency at and to 5.914. estoppel, if it of collateral effect
To avoid the prosecutor applicable, would be made were to be charges develop required indicated criminal bring petition to trial before them concerning jurisdiction be could determination reached proceeding. However, charges beyond proving a rea- criminal burden presented by problems doubt, added to sonable require- scheduling conflicting procedural21 and extrеmely courts, it would make the two ments of impossible, criminal for the difficult, and often brought in charges in circuit to trial to be pro- determination advance court. bate prosecutor petitioner face would Thus, or public not choice
an unfortunate proceed on the whether interest: probate child, for the of concern court because probate proceeding delay of concern because to that a verdict preclude nonjurisdiction would prosecution of the accused. policy by public persuaded considera- We are criminal and an election between tions that such judi- protective proceedings should child through application imposed cially estoppel. (Ala State, 500 So 2d See Joiner *15 1986).22 App, Crim estoppel should collateral
Our conclusion
21
n 20.
See
22
Michigan
relied
appellate
in
has
decision
At least one
proceedings
purpose
as a basis
of the
in the
difference
substantial
denying
proceedings.
to both
common
to issues
546;
App
Licensing
Regulation, 149 Mich
Dep’t
Thangavelu
&
v
of
(1986).
(1986),
164 op Opinion the Court in not apply such situations is reinforced the Judgments, 2d, of Restatement which instructs exception general that another rule of issue preclusion is available when:
A new
of the
determination
issue warranted
by differences in
quality
or extensiveness of
procedures
followed
courts or by
two
relating
factors
to the allocation of
28(3),
[Id.,
p
between them ....
§
273.]
exception
This
"analysis
focuses
an
comparative
and
of
quality
pro-
extensiveness
courts,
cedures followed in
two
of their relative
competence
issue,
to deal with the particular
and
of
legislative
purpose
allocating jurisdiction
Note,
between them.” Reporter’s
1 Restatement
2d,
Judgments,
28, p 287.23
§
Even if it were to be assumed
"quality”
and
procedures
"extensiveness
followed in
circuit)
the two
(probate
courts”
are compara-
ble, we
"competence”
believe that
of
pro-
bate court
to conclusively
determine
in a child
protective the criminal
or inno-
cence of
compromised
an accused is necessarily
the appropriate
focus
the probate
court on the
protection
Further,
of children.
disparity
“legislative purpose
allocating
jurisdiction”
as
between the two courts was underscored
Legislature when it
language
inserted this
applied
reasoning.
Other state courts have
similar
In re Katherine
B,
1085;
Kimberly
(1985);
&
126
Gregory
Misc 2d
484
v
NYS2d 788
supra
Kentucky,
Alvey,
600;
Fagan,
supra,
n 17
at
v
n
State
v
State
Court,
supra.
Superior
Aрp
n 18
Cf.
v
Lockwood
160 Cal
3d
(1984).
Rptr
Cal
analysis
recently employed by
A
reject
similar
Court
this
argument
adjudication
denying unemployment
that an mesc
operate
preclude litigation
subsequent
benefits
should
issues
Inc,
employment
Storey Meijer,
suit for
Mich
breach
contract.
(1988).
368, 372-373;
Proceedings chapter under this shall not be proceedings. considered to be criminal 712A.1; [MCL 27.3178(598.1).][24] MSA IV Because the issue of defendant’s or innocence was not decided in court, prior proceedings in principles of collateral do not prohibit prosecution of defendant.25 Accordingly, we reverse the decision of the Court of Appeals and vacate the order dismissing the criminal charges against defendant. We remand this case to the trial court for further proceedings opinion. this conformity with Riley, C.J., Brickley, Boyle, Archer, and JJ., Griffin, concurred with J.
Levin, (dissenting). question J. presented is whether the Court of Appeals concluding erred that this prosecution is barred the doctrine of estoppel. not, We would it hold that did and would affirm.
A probate court
found that
the court
jury
did
224,
quoted
provided,
Prior
to 1988 PA
the second
sentence
"Proceedings
chapter
under this
shall not be deemed to be сriminal
proceedings.”
argues
preclude
25 Plaintiff also
that collateral
should not
prosecution
mutuality
defendant’s criminal
estoppel, citing
because there is no
Howell,
Judgments,
seq.,
Restatement
et
§80
supra
at 45-46. If the
had found that
court did have
child,
precluded
over
defendant would not have been
defending
against
charge.
from
himself
the criminal
Cf. 1 Restate
2d,
Moore,
Judgments,
§§27-29, pp 250-303;
ment
IB
Federal Prac
tice,
2], p
and Bernhard v Bank of America Nat’l
¶ 0.441[3.—
(1942).
Ass’n,
Savings
Trust &
19 Cal 2d
i judge jury, The instructed the in the form of the developed statute2 and the standard instructions by judges,3 jury find, must from evidence, all environment, whether the child’s home or criminality, reason of was an majority phrase "necessarily uses the determine.” The Re statement uses the term "determine”: actually litigated When an issue of fact or law is and deter- judgment,
mined a valid and final determination is judgment, essential the determination is conclusive in a subsequent parties, action between the whether on the same 2d, 27, Judgments, p a different claim. Restatement [1 § 250.] 2See n 3. accompanying See text n 5. v Gates Dissenting Opinion Levin, J. question, posed, place
unfit for her to live. The so permit jury abstract, viewed in the did indeed charged did not to find that the criminal conduct possible unfit. It that the render her home authorizing it to understood the instructions as although it home was fit render a verdict that the sexually had in fact was convinced that Gates daughter. his And that the found that abused daughter sexually abused his but Gates had fact Possible, nevertheless found that her home was fit. likely. but not
A phrasing language of the statute4 and the recognition that some аcts the instructions reflect might not render a home of criminal misconduct unfit parent A who circulates counter- for a child. pollutes money, environment, embezzles, feit might view as or commits other crimes that some *18 may provide serious, a fit more or less nevertheless permit home for his children. The statute does not jurisdiction unless the court to assume jury finds that the criminal act renders the home unfit. properly jury was thus instructed parent’s
"[w]hether the criminal law violation of renders the home or environment of the child an section, juvenile Except provided in as otherwise this division of the court shall have: (b) proceedings concerning any under 17 Jurisdiction in child county:
years
age
found within
(2)
environment,
neglect,
cru-
Whose home or
reason
drunkenness,
elty,
criminality,
depravity
part
of a
or
custodian,
place
parent, guardian, or
is an unfit
for such
other
712A.2;
27.3178(598.2).]
to
in.
MSA
child
live
[MCL
B argument— was, however, no There evidence separate apart tending from the evidence to show that Gates had committed the act abuse and the evidence to the on or sexual contrary focusing — tending to whether the home or show envi- argu- assuming Thus, ronment was or was not fit. endo that the understood that it author- although ized to find the home fit it found child’s sexually her, that her father had abused there is suppose no reason to in fact found daughter sexually that Gates had abused his but nevertheless found that her home was fit. majority emphasizes following instruction: you protection I do instruct that this is a child case. It is not Therefore, you of, a criminal case. the issue is not that before guilt or innocence but the issue is whether comes [the child] jurisdiction
within the of the Juvenile Division of the Jackson County Probate Court. You should not consider this anyway to be in involved with the criminal so law far as [sic] your deliberations concerned. penultimate paragraph That instruction seems to have echoed prosecutor’s closing argument: of the know, minimum, very certainly You at the this is a case that evidence, preponderance believe at least a of the you jurisdiction to shows court and that’s what we’re that this child comes within the of the asking. It’s not a criminal case. go jail you This case is not a a find that criminal case. The father cannot as here, proceedings today result and we would ask the minor . . . comes within keep eye court so the court can on her and the court can keep any eye оn the father .... [sic] *19 objected, give The defendant then and the court said that it would concerning your an instruction making sufficient, what the court does "as a result of finding” prosecutor the that would and asked whether prosecutor the said that it was. Gates by Dissenting Opinion Levin, J. filed in the The amended daughter’s alleged his had touched that Gates grati- purpose genitals or arousal of sexual for the par- introduced both All the evidence fication.6 allegation primary the directed to ties was daughter’s petition: his had touched that Gates lawyer contended, genitals.7 nor his Gates Neither during expressly by innuendo, the examination or argument, during if that even oral or of witnesses his touched that Gates had so found purpose genitals daughter’s of sexual gratification, nevertheless her home was arousal or place fit for her to live. presented question if three would be A different litigated: had the child whether issues had been touched touched, Gates had so whether been so so, was nevertheless her, and, if her home whether place no evidence was for her to live. Because a fit focusing fit, home was on whether introduced the criminal con- to find that occurred, even were the majority’s alleged asser- in fact duct inno- other than Gates’ tion that fаctors prose original petition the dss was amended filed words, added the the case. The amendment cutor when he entered "for gratification.” purposes The additional arousal or sexual penal language sexual contact: mirrors the code definition of touching intimate victim’s or actor’s intentional of the
the
parts
immediate
that intentional
for the
clothing covering
touching
or the intentional
parts, if
the actor’s intimate
area of the victim’s or
being
reasonably
touching
as
be construed
can
gratification.
purpose
[MCL
of sexual arousal or
750.520a(k);
28.788(l)(k).]
MSA
during
justices
response
question
oral
one of the
to a
from
Court,
acknowledged
argument
prosecutor
that he had not
in this
alleged any
the home unfit
that would have rendered
other conditions
proceeding.
when he filed
scope
trial,
go beyond
During
prosecution
of the
of the
did
during
presentation
allegations
petition’s
either
limited
during
of defense witnesses.
the cross-examination
case in chief or
Nor
chief or on cross-examination
during
any
explore
his case
other issues
did Gates introduce or
people’s
witnesses.
*20
cence have been the basis of the "no tion” verdict is tenuous at best.8
ii
Maryland
Appeals
Court of
held that "the
estoрpel prevents
doctrine
the State
criminally trying
charges
from
defendant
when,
sexual assault and related offenses
in a
prior
proceeding
alleged
civil
based
same
incidents,
the court dismissed the action on the
ground
prove
that the State had failed to
that the
Bowling
defendant had committed the acts.”
v
(1984).9
State,
396, 398;
298 Md
In 468; v 32 Cal 3d Cal majority 8 The asserts that because the learned that child, custody mother had exclusive jury might have concluded on that basis alone that the [t]he require protection child did not of court. Thus jury’s rationally grounds verdict could have been based on other than a determination of the defendant’s innocence of the allegations petition. [Ante, p 160.] lawyer Gates’ did not ask the to consider that the mother had custody exclusive deciding of the child or Gates’ limited access to her whether the court had of her. 9 Bowling, charged sexually assaulting a father was with his adopted daughter. circuit court. The petition A child-in-need-of-assistance filed in was allegations was based on A sexual abuse. hearing daughter was held to determine whether the child testimony hearing need of assistance. "The at the dealt almost exclu sively actually alleged with whether or not the incidents of sexual misconduct Id., p judge occurred.” 399. The trial found that sexual abuse proven by preponderance had not been of the evidence. Id. The petition. Subsequently court dismissed the a criminal indictment was against grounded filed cal factual the father. "The indictment was on the identi allegations which formed the basis for the earlier Id., petition.” p . . . 400. 10Id., p 404. Gates Dissenting Opinion Levin, J. (1982), Supreme Court P2d estop- the doctrine of collateral applied California preceded case in a that was pel said: hearing.11 The court administrative applied to decisions may be Collateral agencies an ad made ministrative administrative "[w]hen capacity agency acting judicial properly disputed resolves issues of fact before and it which the adequate oppor had an have .”[12] . tunity litigate . . *21 that The added ”[t]he [administrative 11Sims, recipient, a notified the Social Services welfare was County Department and food that she had received afdc Sonoma stamp county that she was The claimed benefits to which not entitled. stepfather fully report . . . "had to that children’s was she faded respondеnt public employed living at home received and while Id., p . . 473. assistance . .” against county prepared "The a of Action” Sims. The then "Notice respondent compen- proposed grants future to to notice sate for hearing” pursuant to reduce cash overpayments.” request alleged a a "fair Id. Sims filed challenge propriety "to to California statute hearing, request County’s Prior for a fair Id. to Sims’ action.” against municipal complaint her in court. had been "a criminal filed complaint allegations were on the of fraud that The was based same ” subject County’s Id. 'Notice of Action.’ hearing prosecution pending, Sims’ fair was While the criminal was County hearing to meet officer found "the had failed held. proving respondent fraudulently had obtained its burden of charges welfare benefits.” Sims later moved to dismiss criminal Id., against p pending granted 474. The trial court her motion. her. present against county Sims at the had declined evidence hearing. It the case contended that dss lacked to hear municipal charges pending in the court. since criminal were 12Id., p 479. Watt, 172, 182; Similarly, App 320 NW2d 115 Mich see (1982), applied Appeals the Court of the doctrine 333 collateral where prosecution, and to bar a criminal said: very based Since the essence the criminal fraudulently upon to the allegation misrepresented that defendant regarding her whether or not ex-husband resided dss home, since, appropriate proceeding, her in an
with in her judge law that the dss had not estab- the administrative lished that fact ... we believe that held the criminal conviction proceedings and the dismissed. must here be reversed criminal 434 Mich Dissenting Opinion Levin, J. agency] exonerating decision [the accused] of fraud given may effect. This is true proceed- where, case, even ings inas this the successive pro- involved are different in nature and the ceeding estopped prosecution.”13 to be ais
Bowling distinguishable are, however, and Sims because in both cases the trial court in the civil proceeding specifically found that the criminal charged prosecution misconduct in the criminal had not occurred while here there was not such a specific finding.
hi general Whenever there is a verdict —most general verdicts are culty deciding verdicts —there will be diffi- regarding
what the determined underlying disputed requisite issues of fact finding. deciding the ultimate whether an issue litigated actually of fact was determined, court should assess the entire record and decide question probabilities based on the and not possibilities. *22 approach
That was the
of the United States
Supreme
Swenson,
Court in Ashe v
436;
US
(1970).
S Ct
"examine the prior proceeding, record of a taking pleadings, evidence, into account charge, and matter, other relevant and conclude whether grounded rational could have its verdict 13Id., p 482. Gates Dissenting Opinion Levin, J. the defendant that which other than
an issue from seeks to foreclose consideration.”[14] approval, apparent majority Ashe with The cites employ analysis the standard in its does not but there stated.15 culpability. In his on Gates’
The trial centered judge jury, closing "When said: to the remarks only you you to consider deliberate, allowed properly admitted has been the evidence which only had been "evidence” that The this case.” concerning testimony whether was admitted child had been and, so, Gates if whether molested person evidence molested her. No who had was bearing had of her home on the fitness otherwise introduced. been alternative trier of fact/court renders
Where the law either of which of fact or determinatiоns judgment, supported nei- the earlier have would ther determination judg- is "essential only liti- Where, however, issue is one ment.”16 only determined, issue could have been one gated,17 suppose ordinarily there is no reason and another litigated, issue, determined was determinative. given parties issue frame the debate on a pa- presentations. They
through define the their the com- will consider rameters which the arguments. peting evidence and When plead, litigate, controversy and submit an to a general jury, ordinar- verdict should issue to the deciding regarded ily There issue. as 14Id., p 444.
15Ante, p 158. h, 2d, p Judgments, 258. 16 1 comment § Restatement Judgments, 2d. See n 1 for 27 of the Restatement § question majority or inno of Gates’ concedes that probate proceeding such that it was focus of the cence was the factual Ante, p "actually litigated.” 156.- *23 Mich by Dissenting Opinion Levin, J. strong presumption should be a the decision pled, litigated, is based on the issue only by compelling submitted, rebuttable evidence that the verdict did not decide that issue. only litigated
Here the issue that was daughter. sexually whether Gates had abused his overwhelming probability is that the factual jury, issue determined when it rendered its sexually verdict, was whether Gates had abused daughter, people vigorously, his as the so but so unsuccessfully, far contended. uncertainty
There is considerable in most law- require proof suits. The law does not absolute certainty. applied by majority The standard in deciding case, the instant in whether the factual culpability issue of Gates’ was determined jury, higher jury, than the standard the on the majority, apply again retrial ordered in will deciding that factual issue.
The doctrine of collateral evolved response public to "the concern of the litigation settlement of in the interest of a stable society minimizing expense and effort of the litigants.”18 Application courts, as as of well person’s liberty doctrine a case where a inter- provides ests are at stake assurance that matters once determined in adversary action conclusive, shall be upon fear of furnishing deemed thus a basis predicate which to future conduct without repeated arising relitigation vexation from issues.[19] of determined people failed to convince the of Gates’ guilt. subjected relitigation He should not be 18Polasky, prior litigation, Collateral 39 Iowa —Effects (1954). L R 19 Id., pp 219-220. Gates *24 Dissenting Opinion Levin, J. sexually mo- basic issue—whether he the same prosecution. daughter a criminal lested his —in IV purposes majority of a child The states that the prosecution рroceeding protective and a criminal application that of the doctrine of are so different estoppel contrary to sound collateral public policy.20 would
Although general purposes the overlap, proceedings differ, is the two there purposes mutually the are not exclusive. that a function The instant case demonstrates proceeding may in fact be to engaged parent in criminal determine whether a respect parent’s child. misconduct with to solely is on Where the based allegation parental criminal misconduct an respect with child, fate of both the child and parent inextricably tied to the determina- parent’s guilt tion of the or innocence. "protect” by acquir- the child
court cannot act to ing jurisdiction child, unless the finds parent guilty criminal miscon- petition. respecting charged in the duct the child sought charged, purpose sexual abuse is Where abuse/neglect initiating to be achieved finding by only can be realized parent did fact commit respecting charged misconduct act child. abuse/neglect proceeding,
In an
various consid-
appli-
may
jury’s
inform the
verdict. The
erations
cation of the doctrine
estoppel
of collateral
particular
depend
however,
not,
what
case does
on
depends
may
It
on what
occur
another case.
particular
case
in the
case. In the instant
occurred
20Ante, p 161.
—typical atypical only pled, litigated, or issue —the and submitted to the trier of fact Gates’ was bearing any or innocence. No evidence other provided jury’s issue for the consideration. Collateral effect should not be denied identity, only where there is issue was where one issue pled, litigated, jury, and submitted might because in another case more than one issue be litigated theory because there is a differ- primary purposes proceed- ence in the of the two ings.21 majority applying contends that the doc-
trine of
instant case
oblige
prosecutor
would,
cases,
in future
*25
commencing
prosecu-
choose between
a criminal
public
ascertaining
tion to vindicate the
interest
in
filing
a
in
court
to
protect
the interests of the child.22 Reference is
21
by majority
distinguishable:
The cases relied on
are
Fagan,
815;
335;
In State v
66 NY2d
498 NYS2d
489
222
NE2d
(1985),
(1984),
Alvey,
49;
and State v
67 Hawaii
22Ante, pp 163-164. v Gates Dissenting Opinion by Levin, J. "42 rule forth in day” made to the so-called set 5.972, provides that if a child has MCR which been home, i.e., "in place- from the the child is taken ment,” possi- "the trial must commence as soon as the child is days ble but not later than after . majority argues the court . . .” The placed by rule, it would be that because of the forty-two-day difficult, impossible, often for the "extremely in charges brought to be to trial circuit in determination advance court.”23 to first scheduling problem try case —which by agreement —can be resolved an amendment of the court rules this Court has the to decree. The Court is cur- power considering proposal to extend the time rently frame from to forty-two sixty-three days.24 to generally partici-
Prosecutors called pate abuse/neglect proceeding.25 When the litigation, in the prosecutor intimately involved prosecutor oppor- such that has a full and fair litigate abuse/neglect the issues tunity litigated and those issues are proceeding, actually probate proceeding and are the same issues sought litigated in the criminal prosecution, apply.26 the doctrine of collateral should 23Ante, p 163.
24
post, p
See
1204.
25 (A)
court,
request
prosecuting
General. On
of the
attor
ney
legal sufficiency
shall review the
and shall
appear
any
protective
proceeding ....
at
child
[MCR
5.914(A).]
.,
[U]pon request
department
.
of the
of social services .
prosecuting attorney
legal
shall serve as a
consultant
224,
stages
proceeding.
department
...
at all
PA
[1988
712A.17(5);
27.3178(598.17)(5).]
MCL
MSA
prosecutor
If the
were to be called into a case
the court under
5.914(A),
argument
oppose
petition,
might
then
MCR
but
an
be
The court is a court of contrast with an administrative agency.28 pros- represents petitioner ecutor generally protective proceeding. child lawyers both to be the same in likely sides both the child and the protective proceeding proceeding. criminal This litigants is not a case where the did not have strong as litigate incentive the earlier proceeding as have in the later they proceeding.
If the prosecutor participate does not proceeding, court application of the doc- trine of inappropriate be may prosecutor because the has not had full and fair opportunity litigate.29
The record does not substantiate
the majority’s
competence
assertion that
to determine
in a child protective proceeding the
guilt
criminal
or innocence
parent
"is neces-
sarily compromised
appropriate
focus of the
protection
on the
of children.”30 The
prosecutor
in the instant
protective
child
proceed-
ing focused
on the
entirely
asserted
prosecutor
of Gates. The
compromised.
was not
prosecutor’s
made because the
petitioner.
interest would conflict with that of the
2d,
Judgments,
532, p
See 46 Am Jur
686.
§
600.801;
27MCL
MSA 27A.801.
Sims,
People
supra.
But see
v
Watt,
Appeals
People
supra,
179,
p
People
The Court of
v
n 12
740,
Grainger,
App
753-754;
(1982),
v
117 Mich
Cavanagh, 184, 190; States, 2 L Ed 2d 78 S Ct 355 US Green v United Swenson, supra, p (1957); 446. Ashe v