Petition for Writ of Certiorari — Gates v. Michigan

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89- 1688 | EILED

APR 30 1990

2\WOSEPH F. SPANIOL, JR,

iy CLERK

ie on ait Rtn meteor tt

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

GREGORY GATES,

Petitioner

STATE OF MICHIGAN,

Respondent

ON APPEAL FROM THE

SUPREME COURT OF MICHIGAN

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

NICHOLAS SMITH, P20697

Attorney for Petitioner

255 E. Brown Street

Suite 450

Birmingham, MI 48009

313-647-6455

QUESTION PRESENTED FOR REVIEW

WHETHER THE FEDERAL RULE OF COLLATERAL

ESTOPPEL PRECLUDES A CRIMINAL TRIAL OF AN

INDIVIDUAL CHARGED WITH SEXUAL ABUSE WHERE

THE ISSUE OF SEXUAL ABUSE WAS FULLY LITIGATED

BETWEEN THE SAME PARTIES IN THE JUVENILE

DIVISION OF PROBATE COURT AND THE JURY

RETURNED A GENERAL VERDICT IN FAVOR OF THE

DEFENDANT IN THE JUVENILE COURT

eee ee nineteen wii

LIST OF PARTIES

The parties in this proceeding in the

Michigan Supreme Court were as follows:

) People of the State of Michigan,

Plaintiff-Appellant.

Ze Gregory Gates,

Defendant-Appellee.

Appendix D - Order of Dismissal,

TABLE OF CONTENTS

Question Presented for Review

List of Parties

Index of Authorities

Opinions and Orders Below

Jurisdiction

Statement of the Case

Reasons for Granting Certiorari

Argument:

ke WHETHER THE FEDERAL RULE

OF COLLATERAL ESTOPPEL PRECLUDES

A CRIMINAL TRIAL OF AN INDIVIDUAL

CHARGED WITH SEXUAL ABUSE WHERE

THE ISSUE OF SEXUAL ABUSE WAS

FULLY LITIGATED BETWEEN THE SAME

PARTIES IN THE JUVENILE DIVISION

OF PROBATE COURT AND THE JURY RE-

TURNED A GENERAL VERDICT IN FAVOR

OF THE DEFENDANT IN THE JUVENILE

COURT

Conclusion

Appendix A - Opinion of the Michigan

Supreme Court “7 a a

Appendix B - Opinion of the Michigan

Court of Appeals.

Appendix C - Opinion of the Honorable

Russell E. Noble, Circuit Judge

for the County of Jackson

Court for the County of Jackson

iii

—————————~se aaa

3°39

21-30

Al-46

B1l-6

C1-3

Circuit

D1-2

TABLE OF CONTENTS - Continued

Page

Appendix E - Criminal Complaint. El-2

Appendix F -- Amended Petition, Jackson

County Probate Court, Juvenile

F1l-2

Division.

INDEX OF AUTHORITIES

Page

CASES:

Ashe v Swenson, 397 U.S. 436; 90

S.Ct. 1189, 25 L.Ed.2d 469

(EG7G). « « « wo 0 e) Ee 26, 3S ZS

Benton v Maryland, 395 U.S. 784;

89 S.Ct. 2056, 23 L.Ed.2d 707

(1969). + ke ee 24

Bowling v State, 298 Md 396 (1984) 20

Gregory v Commonwealth, 610 S.W.2d.

598 (Ky 1980) ao 20

Mills v Alabama, 384 U.S. 214

(1965). ee er ae ee 2

People v Gates, 168 Mich. App. 384,

386; 423 N.W. 668, 669 (1988) . . 11-13

People v Sims, 32 Cal 3d 468; 186 Cal

Rptr 77; 651 P.2d 321 (1982) 20

People v Watt, 115 Mich. App. 172;

S20 B.W. 26 333 (29GZ). « « » « « Be h3

Radio Station WOW, Inc. v Johnson,

326 U.S. 120 (1945) 2

Yates v U.S., 354 U.S. 298, 77

S.Ct. 1064, L.Ed.2d 1356 (1957) 22

STATUTES:

MCLA 712 A.2 pw) oe ay ae ee

MOIA 7350.5200(i (a) . 2 es ws se eo eo ew MS

28 U.S.C. Section 1257(a)

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

GREGORY GATES,

Petitioner

STATE OF MICHIGAN,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

The Petitioner, Gregory Gates, by his

attorney, Nicholas Smith, prays that a Writ

of Certiorari issue to review the Opinion of

the Michigan Supreme Court filed on March 5,

1990.

OPINIONS AND ORDERS BELOW

The Opinion of the Michigan Supreme

Court, filed March 5, 1990, is set forth in

Appendix A.

The published Opinion of the Michigan

Court of Appeals, filed May 2, 1988, is set

forth in Appendix B.

The Opinion of the Honorable Russell E.

Noble, Circuit Judge in the Circuit Court for

the County of Jackson, dated December 3,

1986, is set forth in Appendix C.

The Order of Dismissal from the Circuit

Court for the County of Jackson, dated De-

cember 17, 1986, is set forth in Appendix D.

JURISDICTION OF THE COURT

It is from the Opinion of the Michigan

Supreme Court that Petitioner files this

Petition for Writ of Certiorari.

This Court has jurisdiction to grant

this Petition for Certiorari pursuant to 28

U.S.C. Section 1257(a) and Mills v Alabama,

384 U.S. 214 (1965) and Radio Station WOW,

Inc. v Johnson, 326 U.S. 120 (1945).

STATEMENT OF THE CASE

In November, 1985, Petitioner and his

wife were divorced. One child, a daughter

named Nicole, was born of this union. At the

time of the divorce Nicole was three years

old. Both Petitioner and his wife had joint

custody of Nicole however, Nicole resided

with her mother, Petitioner's ex-wife.

On or about February 18, 1986, the

Michigan Department of Social Services caused

the Jackson County Prosecutor to file a

Petition alleging that Defendant sexually

abused his daughter. The Petition states in

pertinent part:

"On or about 02-13-86, Nicole

Gates was interviewed by petitioner.

During this interview, Nicole stated

that her father had touched her ‘pee

pee real hard.' While stating this,

Nicole showed petitioner what she meant

by placing both of her hands on her

vaginal area. Nicole further illus-

trated this while using the sexually

explicit dolls by placing the adult

male doll's hand on her (Nicole's)

vaginal area. Nicole stated that when

this occurred, she had no clothes on.

Nicole further revealed that she

had not told her mother of her father's

actions because she was afraid of what

her father would do.

Due to the aforementioned inform-

ation, I am respectfully requesting

court intervention in this matter."

The statutory grounds for Juvenile Court

jurisdiction are set forth in MCLA 712 Awd.

At the time the Petition was filed, the

statute read in pertinent part:

"Except as otherwise provided

herein, the juvenile division of the

probate court shall have:

k ok

(b) Jurisdiction in proceedings

concerning any child under 17 years of

age found within the county

kk *

"(2) Whose home or environment, by

reason of neglect, cruelty, drunken-

ness, criminality or depravity on the

part of a parent, guardian, or other

custodian, is an unfit place for such

child to live in."

On May 2, 1986, Jackson County Prosecut-

or filed a Complaint and Warrant charging

Defendant with second-degree criminal sexual

conduct, in violation of MCLA 750.520c(1)(a),

which provides in pertinent part:

eer

"ies A person is guilty of

criminal sexual conduct in the second

degree if the person engages in sexual

contact with another person and if any

of the following circumstances exists:

"(a) That other person is under

13 years of age."

As defined by MCL 750.520a(k); MSA

28.788(1)(k), "sexual contact" includes

"the intentional touching of the cloth-

ing covering the immediate area of the

victim's or actor's intimate parts, if

that intentional touching can reason-

ably be construed as being for the pur-

pose of sexual arousal or gratifica-

tion.”

The Complaint is set forth in Appendix

On May 27, 1986, Defendant's preliminary

examination in the criminal charge was con-

ducted and Defendant was bound over for trial

in the Circuit Court.

On June 16, 1986, the Judge for the

Probate Court for the County of Jackson -

Juvenile Division allowed the Jackson County

Prosecutor to amend the Petition upon which

Petitioner was to be tried in that Court.

The amended Petition read:

"Nicole Gates (DOB: 3-29-82)

Allegations: On or about February 13,

1986, Nicole Gates was interviewed by

petitioner, during this interview,

Nicole Gates stated that her father had

touched her 'pee pee real hard.' While

stating this, Nicole showed petitioner

what she meant by placing both of her

hands on her vaginal area. Nicole

further illustrated this while using

the sexually explicit dolls by placing

the adult male doll's hand on her

(Nicole's) vaginal area. Nicole stated

that when this occurred she had no

clothes on.

It _is also alleged that: This

touching by the father could be rea-

sonably construed as being for purpos-

es of sexual arousal or gratification.

Nicole further revealed that she

had not told her mother of her father's

actions because she was afraid of what

her father would do.

Due to the aforementioned informa-

tion, I am _ respectfully requesting

Court intervention in this matter."

(Emphasis supplied).

The Amended Petition is set forth

Appendix F.

Throughout the trial it was the pro-

secutor's theory and stated position that

Defendant sexually abused his daughter.

In his opening statement the Prosecutor

stated:

"Basically, what the People's

proofs are going to be is: we're going

to call Nicole Gates, who's four years

old at this time, and she's going to

get on the witness stand and she's go-

ing to tell you basically what happened

when she went to visit her daddy; she's

going to tell you about a touching that

her father did, I believe she calls it

in the pee pee area, and she'll show on

her doll where that area is, she'll --

she'll demonstrate that to you, as to

how her father touched her, and then

she'll tell you a little bit about the

touching as to how it felt, where in

the house it occurred, what happened

after the touching, what she --- what

she did, what the father did and what

the father said right after the touch-

ing, which is very important, and any-

thing else that the father said rela-

tive to --- relative to the touching

that occurred in the house while she

went to visit him.

The People's proofs will show that

Nicole will tell you about the touching

and that right after the touching the

father supposedly said: "don't tell

mommy otherwise mommy won't let you

come to see me anymore." Now that's a

very important statement. You should

focus in on that statement along with

the touching that the father did and

what Nicole's going to show you.

It's the People's position that

touching could be reasonably construed

as being for purposes of sexual arousal

Or sexusl gratification. There's no

answer for that touching other than

that it was for sexual arousal or grat-

ification. The statement comes in, as

far as what the father said: don't tell

mommy otherwise mommy won't let you

come back here anymore. That's very

important because that statement is

coming from the defendant as Nicole

will tell you, and that statement kind

of implies or infers on the part of the

--- of the father that he knew he did

something wrong, he knew he did it for

purposes of sexual arousal or gratifi-

cation, otherwise if it was something -

--"" (Probate Court Adjudication Hear-

ing Trans. [PATr] pp. 17-18)

an a

The attorneys for the mother and for the

Defendant made references to the allegations

in the amended complaint in their opening

statements (PATr pp. 20; 29-32). All the

witnesses called by the prosecution testified

about the alleged touching or about being

told of the alleged touching.

The Court instructed the jury as to

elements which are necessary for the minor to

come within the Court's jurisdiction. The

Court's instruction included the following:

"A child comes within the juris-

diction of the Court i#® that child's

home or environment, by reason of ne-

glect, cruelty, criminality or deprav-

ity on the part of a parent makes that

place unfit for the child --- an unfit

place for the child to be.

The legal definition of cruelty is

the same as the common understanding of

the word cruelty. It implies physical

or --- or emotional mistreatment of a

child.

Depravity means a moral corrupt

act or practice.

The legal definition of crimin-

ality is the same as the common under-

standing of the word criminality. Crim-

inality is present when a person vio-

lates a criminal law of the State of

Michigan or of the United States.

Whether a parent's violation of the

criminal law renders the home or envi-

ronment of the child an unfit place for

the child is for you to decide based

upon all of the evidence in the case.

(PATr pp. 430-431)

The Court also instructed the jury on

the prosecutor's theory of the case which was

adopted by the guardian ad litem and the

attorney for the mother. The Court stated:

"It is their joint theory of the

case that Nicole Gates was born on

March 29th of 1982, has visited her

father, Gregory Gates and that at least

On one occasion Gregory Gates has

touched his daughter real hard in the

vaginal area while she was asleep in

the living room. While this occurred

Nicole woke up and became mad and went

to her room to --- to lock the door.

Her father went and got the keys and

opened the door and told her not to

tell mommy or she wouldn't be able to

come to see him anymore. At a Depart-

ment of Social Services visit he also

told her that she should not tell the

Judge or he would go to jail. The

People believe that the touching was

for the purposes of sex --- sexual

gratification or arousal. Now, that is

the theory of the People, and Mr. ---

and the Guardian and the mother. (PATr

pp. 432-433) (Emphasis supplied)

On June 17, 1986, the jury returned a

general verdict in favor of Defendant. (PATr

p. 442).

After the Jackson County Prosecutor's

post verdict motions failed to set aside the

verdict Petitioner moved to dismiss the

criminal case on the grounds that the federal

doctrine of collateral estoppel and the

Michigan appellate court's decision in People

vy Watt, 115 Mich. App. 172; 320 N.W.2d 333

(1982) barred the prosecution of Petitioner

on the criminal charges in Circuit Court. On

December 17, 1986, Petitioner's Motion was

granted. The Jackson County Prosecutor

appealed from that decision.

The Court of Appeals affirmed the Cir-

cuit Court's dismissal, People v Gates, 168

Mich. App. 384, 386; 423 N.W. 2d 668, 669

(1988). The Court, in affirming, cited the

following facts:

"On June 16 and 17, 1986, a jury

trial in the Jackson Probate Court was

held on the juvenile petition. In his

opening statement, the prosecutor ex-

plained that he would show that defend-

ant had touched Nicole in a sexual

manner and this warranted the probate

court's jurisdiction and intervention.

During the prosecution's proofs, Nicole

testified that she was asleep in a

chair at defendant's home when he

touched her hard in the vaginal area,

awakening her. She also said that

defendant told her not to tell her

mother, from whom defendant was divorc-

ed and shared Nicole's custody, or the

judge about the touching. A Catholic

Social Services therapist testified

that in her opinion Nicole had been

sexually molested. Deborah Gates

(Nicole's mother) and another social

worker testified regarding the child's

marked mood change. No other evidence

was presented to show neglect, cruelty,

or defendant's unfitness to parent,

aside from the alleged sexual touching.

The probate court instructed the

jury that if it found, by a preponder-

ance of the evidence, that defendant's

home was unfit for Nicole because of

neglect, cruelty, criminality, or de-

pravity by defendant then it should

find that the court has jurisdiction

OO a

ca i i

over the child. The jury returned a

verdict that the court did not have

jurisdiction over Nicole. When polled,

all six jury members agreed that they

believed Nicole had not been neglected

in the manner alleged by the Department

of Social Services (DSS).

The Court of Appeals, in conformity with

and following People v Watt, 115 Mich. App.

172; 320 N.W.2d 333 (1982), affirmed the Cir-

cuit Court's dismissal of the criminal sexual

conduct charges on grounds of collateral

estoppel. The Court, in holding, stated:

"We hold that Watt, supra, is

dispositive of this appeal. The basis

of the juvenile petition against de-

fendant was his alleged sexual abuse of

Nicole. No other allegations of abuse,

neglect, or unfitness were made or

proven at the adjudicative hearing.

Thus, the subject matter of the peti-

tion was the same as the criminal

charge. Moreover, it is clear that the

issue was fully litigated in the pro-

bate court as the DSS presented several

witnesses in support of its case. De-

spite the DSS's efforts, the jury --

applying a lesser standard than requir-

ed in a criminal proceeding -- did not

a eT

find defendant guilty of the alleged

sexual assault. Logic dictates that

defendant could not be found guilty of

the same misconduct under the higher

Standard of proof. Finally, we agree

that the DSS and the county prosecutor,

being creatures of the same sovereign,

are the same party for purposes of

collateral estoppel. For these rea-

sons, the trial court correctly ruled

that the doctrine of collateral estop-

pel barred defendant's Prosecution on

charges of second-degree CSC." 168

Mich. App. at 388; 423 N.W.2d at 669-

670.

The Michigan Supreme Court granted the

Prosecutor leave to appeal and set a briefing

schedule. The cause was argued on May 2,

1989. On March 5, 1990, the Michigan Supreme

Court with two Justices dissenting entered an

Opinion reversing the lower Court's decision.

The Michigan Supreme Court in its deci-

sion recognized that the parties in the

probate court and in the criminal case were

the same. The Court stated:

"Although the named-party plaintiff

in the instance case, (the criminal

case), is the People of the State of

Michigan, in practical terms the party

against whom collateral estoppel is

asserted is the Jackson County Prosecu-

tor, who also represented the Depart-

ment of Social Services in the probate

court proceeding.” (op. p.7)

The Court recognized that the factual

focus of the trial was Petitioner's alleged

sexual abuse of his daughter. The Court

stated:

"Tt is clear that the issue of

defendant's alleged sexual abuse of his

daughter was the factual focus of the

jury trial in probate court. The tran-

script reveals that the testimony of

the witnesses and the arguments of the

parties centered on the allegation of

sexual abuse that is also the basis of

the criminal charge.” (Op. p. 8 & 9)

In footnote 5 of the Court's opinion the

Court summarized the facts:

"The child testified that defen-

dant touched her ‘hard’ in the vaginal

area, causing pain, once while she was

sleeping in a living room chair, and

that defendant told her not to tell her

mother. She testified that defendant

touched her ‘about five [other] times.'

Karen DuPage, a family therapist, test-

ified that she interviewed the child

upon request of the Department of So-

cial Services and that, in her Opinion,

the child had been molested by her

father on a number of different occa-

sions. Defendant took the stand and

denied touching his daughter for any

improper reason or abusing her in any

way, although he admitted innocently

touching her vaginal area at times when

helping her use the bathroom or take a

bath."

The Court stated that the question of

sexual abuse was actually and fully litigated

at the trial in Probate Court. (Op. p.9)

The Court nonetheless isolated a single

paragraph from the instructions and concluded

that the general verdict did not necessarily

mean that the jury found that Nicole's home

was unfit even if they found that Petitioner

committed the acts set forth in the Petition,

testified to and argued to the jury. The

dissent by Justices Levin and Cavanaugh found

this argument disingenuous.

The dissenters stated:

"We would hold that the entire

record in the probate court proceeding

-- the charge set forth in the peti-

tion, all the evidence, the arguments

of counsel, and the instructions read

as a whole -- should be assessed in

deciding whether the verdict of no

jurisdiction constituted a determina-

tion by the jury that Gates had not

sexually abused his daughter. That

decision cannot properly be premised on

a construction of a single sentence in

the instructions viewed in the ab-

stract, separate and apart from the

entire record." (dissent p. 2)

The dissenters went on to state:

"There was, however, no evidence

or argument -- separate and apart from

the evidence tending to show that Gates

had committed the act of sexual abuse

and the evidence to the contrary --~

focusing on or tending to show whether

the home or environment was or was not

fit. Thus, assuming arguendo that the

jury understood that it was authorized

to find the child's home fit although

it found that her father had sexually

abused her, there is no reason to sup-

pose that the jury in fact could find

that Gates had sexually abused his

daughter but nevertheless found that

her home was fit.

The amended petition filed in the

probate court alleged that Gates had

17 i

touched his daughter's genitals for the

purpose of sexual arousal or gratifica-

tion. All the evidence introduced by

both parties was directed to the pri-

mary allegation in the petition: that

Gates had touched his daughter's geni-

tals. Neither Gates nor his lawyer

contended, expressly or by innuendo,

during the examination of witnesses or

during oral argument, that even if the

jury found that Gates had so touched

his daughter's genitals for the purpose

of sexual arousal or gratification, her

home was nevertheless a fit place for

her to live.

A different question would be

presented if three issues had been

litigated: whether the child had been

so touched, whether Gates had so touch-

ed her, and, if so, whether her home

was nevertheless a fit place for her to

live. Because no evidence was intro-

duced focusing on whether the home was

fit, even were the jury to find that

the criminal conduct alleged in fact

occurred, the majority's assertion that

factors other than Gates' guilt or

imnocence may have been the basis of

the "no jurisdiction" verdict is ten-

uous at best," (id pp. 5 & 6, foot-

notes omitted)

REASON FOR GRANTING CERTIORARI

This Court should grant certiorari for

the following reasons:

To reverse the lower court's er-

roneous application of the federal rule of

collateral estoppel.

ya To resolve a split in the applica-

tion of this doctrine by the states. Michi-

gan and Kentucky (Gregory v Commonwealth, 610

S.W.2d. 598 (Ky. 1980) do not apply the doc-

trine. Maryland (Bowling v State, 298 Md 396

(1984]) and California (People v Sims, 32 Cal

3d 468; 186 Cal Rptr 77; 651 P.2d 321 [1982])

do apply the doctrine.

ISSUE IL

WHETHER THE FEDERAL RULE OF COL-

LATERAL ESTOPPEL PRECLUDES A CRI-

MINAL TRIAL OF AN INDIVIDUAL CHARG-

ED WITH SEXUAL ABUSE WHERE THE

ISSUE OF SEXUAL ABUSE WAS FULLY

LITIGATED BETWEEN THE SAME PARTIES

IN THE JUVENILE DIVISION OF PROBATE

COURT AND THE JURY RETURNED A GEN-

ERAL VERDICT IN FAVOR OF THE DEFEN-

DANT IN THE JUVENILE COURT

In Ashe v Swenson, 397 U.S. 436;

""Collateral estoppel’ is an awk-

ward phrase, but it stands for an ex-

tremely important principle in our

adversary system of justice. It means

simply that when an issue of ultimate

fact has once been determined by a

valid and final judgment, that issue

cannot again be litigated between the

same parties in any future lawsuit.”

id at 443

S.Ct. 1189; 25 L.Ed.2d 469 (1970) this Court

stated:

See also Section 68 of the Restatement

of the Law of the Judgment. (p.29$3)

The doctrine is applicable when evoked in

a criminal proceeding where the prior pro-

ceeding was civil in nature. Yates v U.S.,

Sees eee 7? o.uc. 1064, 1 L.Ed.2d 1356

(1957). In Yates, supra, one of the defen-

dants argued that the ruling in a prior dena-

turalization hearing precluded his prosecu-

tion on charges of violating the Smith Act.

The Court rejected the argument finding that

the ruling of the Court in the denaturaliza-

tion hearing was limited only to the time of

that hearing 1927 and did not apply to the

time of the indictment. Even though the

Court ruled against the defendant, the Court

agreed that collateral estoppel applied even

though the prior proceeding was civil in na-

ture. The Court stated:

"We are in agreement with peti-

tioner that the doctrine of collateral

estoppel is not made inapplicable by

the fact that this is a criminal case,

whereas the prior proceedings were

civil in character. U.S. v

Oppenheimer, 242 U.S. 85. We agree

further that the nonexistence of a fact

may be established by a judgment no

less than its existence; that, in other

words, a party may be precluded under

the doctrine of collateral estoppel

from attempting a second time to prove

a fact that he sought unsuccessfully to

prove in a prior action. Sealfon v

| 22

——eeEeeaeEeEeeee

U.S., 332 U.S. 575. Nor need we quar-

rel with petitioner's premise that the

standard of proof applicable in denat-

uralization cases is at least no great-

er than that applicable in criminal

proceedings. Compare Helvering v

Mitchell, 303 U.S. 391; Murphy v_U.S.,

272 U.S. 630. We assume, without de-

ciding, that substantially the same

standards of proof are applicable in

the two types of cases. Cf. Klapprott

v U.S, 335 U.S. 601, G12. Neverthe-

less, for reasons that will appear, we

think that the doctrine of collateral

estoppel does not help petitioner here.

We differ with petitioner, first

of all, in his estimate of what the

Schneiderman case determined for pur-

poses of the doctrine of collateral

estoppel. That doctrine makes

conclusive in subsequent proceedings

only determinations of fact, and mixed

fact and law, that were essential to

the decision, Commissioner v Sunnen,

333 U.S. 591, 601-602; Tait v Western

Maryland R.Co., 289 U.S. 620; The

Evergreens v Nunan, 141 F.2d 927, 928."

354 U.S. at 297-98.

The doctrine of collateral estoppel is

a fundamental concept of due process embodied

in the Fifth Amendment to the United States

Constitution, Ashe, supra, and is made appli-

cable to the States, Benton v Maryland, 395

U.S. 784; 89 S.Ct. 2056; 23 L.Ed.2d 707

(1969).

In Ashe, supra, the Court gave guidance

as to how the doctrine of collateral estoppel

is to be applied where the previous verdict

is a general verdict returned by a jury. The

Court stated:

"Where a previous judgment of acquit-

tal was based upon a general verdict,

as is usually the case, this approach

requires a court to "examine the record

of a prior proceeding, taking into ac-

count the pleadings, evidence, charge,

and other relevant matter, and conclude

whether a rational jury could have

grounded its verdict upon an issue

other than that which the defendant

seeks to foreclose from consideration."

The inquiry "must be set in a practical

frame and viewed with an eye to all the

circumstances of the proceedings."

Sealfon v U.S., 332 U.S. 575, 579, 92

L.Ed. 180, 184, 68 S.Ct. 237. Any test

more technically restrictive would, of

course, simply amount to a rejection of

the rule of collateral estoppel in

criminal proceedings, at least in every

case where the first judgment was based

upon a general verdict of acquittal."

The Michigan Supreme Court did not apply

this rule in the present case. An examina-

tion of the record in the present case shows

and the Michigan Supreme Court found:

a) That the parties to both proceedings

are the same (Op.7)

b) That the question of whether

Petitioner sexually abused his daughter was

actually and fully litigated by the parties.

(Op.p9) On this point the Court stated:

"Tt is clear that the issue of

defendant's alleged sexual abuse of his

daughter was the factual focus of the

jury trial in probate court. The tran-

script reveals that the testimony of

the witnesses and the arguments of the

parties centered on the allegation of

sexual abuse that is also the basis of

the criminal charge. At least in this

sense, it can be said that the issue

whether the defendant sexually abused

the child was actually litigated." (Op

p. 8 & 9)

In a footnote the Court summarized the

trial facts as:

"The child testified that defen-

dant touched her "hard" in the vaginal

area, causing pain, once while she was

sleeping in a living room chair, and

that defendant told her not to tell her

mother. She testified that defendant

touched her "about five [other] times."

Karen DuPage, a family therapist, test-

ified that she interviewed the child

upon request of the Department of So-

cial Services and that, in her Opinion,

the child had been molested by her

father on a number of different occa-

sions. Defendant took the stand and

denied touching his daughter for any

improper reason or abusing her in any

way, although he admitted innocently

touching her vaginal area at times when

helping her use the bathroom or take a

bath." (op. p. 4., par. 5)

A review of the trial documents show

a) That the Petitioner alleged sexual

abuse as defined by the criminal statute.

b) That the prosecutor argued that

the Defendant sexually abused his daughter.

(PATr. pp 17-18)

e) That the jury was specifically

instructed that the prosecutor's theory was

that Petitioner sexually abused his daughter

“for sexual gratification or arousal."

(PATr. p442) |

d) That the jury was instructed that a

child comes within the jurisdiction of the

Court if the child's home is unfit due to the

criminality of a parent. (PATr. pp 430-431)

In Ashe, supra, the Court in applying the

articulated test stated:

"Straightforward application of

the federal rule to the present case

can lead to but one conclusion. For

the record is utterly devoid of any

indication that the first jury could

rationally have found that an armed

robbery had not occurred, or that

Knight had not been a victim of that

robbery. The single rationally con-

ceivable issue in dispute before the

jury was whether the petitioner had

been one of the robbers. And the jury

by its verdict found that he had not.

The federal rule of law, therefore,

would make a second prosecution for the

robbery of Roberts wholly impermis-

sible." 397 U.S. at 445.

In the present case the only issue be-

fore the jury was whether Petiticner sexually

abused his daughter. The jury found that he

had not. The federal doctrine of collateral

estoppel bars Petitioner's prosecution on the

criminal charges and the Michigan Supreme

Court's opinion is wrong.

The Michigan Supreme Court's conclusion

that the jury's verdict did not "necessarily

determine" whether Petitioner sexually abused

his daughter is erroneous. In footnote 9 of

this Court's opinion in Ashe, supra, the

Court stated:

"If a later court is permitted to

State that the jury may have disbe-

lieved substantial and uncontradicted

evidence of the prosecution on a point

the defendant did not contest, the

possible multiplicity of prosecutions

is staggering .. . In fact, such a

restrictive definition of 'determined'

amounts simply to a rejection of col-

lateral estoppel, since it is impos-

sible to imagine a statutory offense in

which the government has to prove only

one element or issue to sustain a con-

viction." Mayers & Yarborough, supra,

at 38. See generally Lugar, Criminal

Law, Double Jeopardy and Res Judicata,

39 Lowa L Rev 317. See also Comment,

Twice in Jeopardy, 75 Yale LJ 262;

Hunvald, Criminal Law in Missouri, 25

Mo L Rev 369, 369-375; Comment, Double

Jeopardy and Collateral Estoppel in

Crimes Arising From the Same Trans-

action, 24 Mo L Rev 513; McLaren, The

Doctrine of Res Judicata as Applied to

the Trial of Criminal Cases, 10 Wash L

Rev 198." id 397 at 444.

The analysis of the Michigan Supreme

Court is the analysis condemned in the foot-

note. The dissenters recognized this fact,

and commented:

"There was, however, no evidence

or argument -- separate and apart from

the evidence tending to show that Gates

had committed the act of sexual abuse

and the evidence to the contrary -- fo-

cusing on or tending to show whether

the home or environment was or was not

fit. Thus, assuming arguendo that the

jury understood that it was authorized

to find the child's home fit although

it found that her father had sexually

abused her.

"A different question would be

presented if three issues had been lit-

igated: whether the child had been so

touched, whether Gates had so touched

her, and, if so, whether her home was

nevertheless a fit place for her to

live. Because no evidence was intro-

ieee

duced focusing on whether the home was

fit, even were the jury to find that

the criminal conduct alleged in fact

occurred, the majority's assertion that

factors other than Gates' guilt or in-

nocence niay have been the basis of the

"no jurisdiction" verdict is tenuous at

best."' (dissenting opinion p. 4 & 6)

The majority opinion of the Michigan

Supreme Court is a completely erroneous ap-

plication of the doctrine of collateral es-

toppel and of the analysis set forth in Ashe

v_Swenson, 397 U.S. 436; 90 S.Ct. 1189; 25

L.Ed.2d. 469 (1970). The opinion should be

reversed.

CONCLUSION

For the reasons stated herein, the Peti-

tion for Certiorari should be granted.

DATED: April 6, 1990

NICHOLAS SMITH, P.C.

By: /s/ Nicholas Smith

NICHOLAS SMITH (P20697)

Attorney for Petitioner

255 E. Brown Street

Suite 450

Birmingham, MI 48009

313-647-6455

APPENDICES

—

APPENDIX A

PEOPLE OF THE STATE

OF MICHIGAN,

Plaintiff-Appellant,

V No. 83363

GREGORY STEVEN GATES,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH:

GRIFFIN, J.

In view of a jury verdict of "no juris-

diction” in a child-protective probate pro-

ceeding, we are asked to determine whether

the doctrine of collateral estoppel bars

subsequent prosecution of the defendant for

criminal sexual conduct where the factual

allegations against the defendant in both

proceedings are essentially the same. Be-

cause the prior probate court verdict did not

necessarily determine the guilt or innocence

of the defendant, we hold that the principles

of collateral estoppel do not apply.

In February, 1986, the Michigan Depart-

ment of Social Services petitioned the juven-

ile division of the Jackson County Probate

Court to take jurisdiction of a child, then

three years and ten months old, on the basis

of allegations that defendant, her father,

A-2

has sexually abused her. The petition in-

: The initial petition read:

"On or about 02-13-86, [the child] was interviewed

by petitioner. During this interview, [she] stated

that her father had touched her 'pee real hard.’

While stating this, [she] showed petitioner what she

meant by placing both of her hands on her vaginal

area. [She] further illustrated this while using the

sexually explicit dolls by placing the adult male

doll's hand on her ... vaginal area. [She] stated

that when this occurred she had no clothes on.

"'She] further revealed that she had not told her

mother of her father's actions because she was afraid

of what her father would do."

After the petition was filed, the DSS was repre-

sented by the Ingham County Prosecutor, who was

allowed to amend the petition to add:

"It is also alleged that: This touching by the

father could reasonably be construed as being for

purposes of sexual arousal or gratification."

The petition referred to MCL 712A.2; MSA 27.3178

(598.2). As amended, the allegations fell within the

scope of MCL 712A.2(b)(2); MSA 27.3178(598.2)(b)(2),

which at the time provided:

"Except as otherwise provided herein, the juvenile

division of the probate court shall have:

kk *

"(b) Jurisdiction in proceedings concerning any

child under 17 years of age found within the county

kk *

“f2) Whose home or environment, by reason of

neglect, cruelty, drunkenness, criminality or deprav-

ity on the part of a parent, guardian, or other

custodian, is an unfit place for such child to live

in.”

itiated child-protective proceedings, the

adjudicative phase of which leads to a deter-

mination of whether statutory grounds exist

for juvenile court jurisdiction. ° If such

grounds are found to exist and the court as-

sumes jurisdiction, dispositional proceedings

are conducted thereafter to determine what

action, if any, should be taken with respect

to the child. MCR 5.961 et seq.

At the time the petition was filed in

probate court, the defendant-father had been

divorced from the child's mother for a period

of two months. Although the child Lived with

her mother, defendant had been awarded joint

custody of the child from the date of the

couple's legal separation in February, 1985,

and prior to the filing of the petition, he

had physical custody of the child every week-

end. However, following the filing of the

petition, unsupervised visitations by the

child in the home of her father were suspend-

ed.

Defendant contested the petition and

requested a jury trial.? After the petition

é The statutory grounds for juvenile court juris-

diction are found in MCL 712A.2; MSA 27.3178(598.2).

3 See MCL 712A.17; MSA 27.3178(598.17); also MCR

5.971(B). The child's mother did not oppose the

petition.

was filed, but prior to the jury trial held

in probate court, the prosecuting attorney,

who represented the DSS in the probate pro-

ceeding, filed a criminal complaint and

warrant in the Jackson Circuit Court, charg-

ing defendant with second-degree criminal

sexual conduct, on the basis of the same

facts alleged in the probate court petition. ”

In the probate court trial which took

place on June 16 and 17, 1986, the testimony

dealt almost ole satires with the allegations

of sexual abuse. At the close of the trial,

. The criminal complaint alleged that defendant had

violated MCL 750.520c(1)(a); MSA 28.788(3)(1)(a),

which provides:

"(1) A person is guilty of criminal sexual conduct

in the second degree if the person engages in sexual

contact with another person and if any of the

following circumstances exists:

"(a) That other person is under 13 years of age."

As defined by MCL 750.520a(k); MSA 28.788(1)(k),

"sexual contact" includes "the intentional touching of

the victim's or actor's intimate parts or the

intentional touching of the clothing covering the

immediate area of the victim's or actor's intimate

parts, if that intentional touching can reasonably be

construed as being for the purpose of sexual arousal

or gratification."

3 The child testified that defendant touched her

"hard" in the vaginal area, causing paid, once while

she was sleeping in a living room chair, and that

(continued...)

the probate court instructed the jury that

the issue it was to decide was whether the

child came with in the jurisdiction of the

court. The jury was further instructed that

a child comes within the jurisdiction of the

court if the child's home or environment is

unfit for the child by reason of neglect,

cruelty, criminality, or depravity on the

part of a parent.

The jury was given a verdict form which

allowed it to check off one of two verdicts:

jurisdiction, or no jurisdiction. The jury

returned a verdict of "no jurisdiction."

The judge then asked the jury, "Do you

Say upon your oath that you find the minor

is not a neglected minor in the manner

and form as the People have in their informa-

tion in this cause charged?" Each of the

jury members responded affirmatively.

) (...continued)

defendant told her not tell her mother. She testified

that defendant had touched her "about five [other]

times."" Karen DuPage, a family therapist, testified

that she interviewed the child upon request of the

Department of Social Services and that, in her opin-

ion, the child had been molested by her father on a

number of different occasions. Defendant took the

stand and denied touching his daughter for any im-

proper reason or abusing her in any way, although he

admitted innocently touching her vaginal area at times

when helping her use the bathroom or take a bath.

A-6

On July 28, 1986, the probate judge

granted a motion for judgment notwithstanding

the verdict, and then ordered a new trial.

However, the Jackson Circuit Court subse-

quently reversed, reasoning that the jury

verdict deprived the probate judge of juris-

diction to grant such relief.

Thereafter, the Jackson Circuit Court

dismissed the criminal charges against de-

fendant on the ground that the jury verdict

in probate court determined "that the prose-

cution had not proved a case of sexual abuse

by a preponderance of the evidence." The

Court of Appeals affirmed. 168 Mich App 384;

423 NW2d 668 (1988). We then granted leave

to appeal, limited to the issue whether, in

view of the prior proceedings in probate

court, principles of collateral estoppel

prohibited the subsequent prosecution of

defendant. ° 431 Mich 904 (1988).

Collateral estoppel precludes relitiga-

tion of an issue in a subsequent, different

cause of action between the same parties

where the prior proceeding culminated in a

6 In this appeal we are not required to consider

whether defendant's prosecution is barred by the

Double Jeopardy Clause of the United States Constitu-

tion. US Const, Ams V, XIV.

valid, final judgment and the issue was (1)

actually litigated, and (2) necessarily

determined.’ Jacobson v Miller, 41 Mich 90,

93; 1 NW 1013 (1879); Howell v Vito's Truck-

ing & Excavating Co, 386 Mich 37, 42; 191

NW2d 313 (1971); Restatement Judgments,

Section 68, p 293. 1 Restatement Judgments,

2d, Section 27, p 250.°

We believe it is important at the outset

to recognize that in the body of case law

applying this principle the vast majority of

cases involve the applicability of collateral

estoppel where there are two civil proceed-

ings. Cases involving "cross-over estoppel,"

where an issue adjudicated in a civil pro-

ceeding is claimed to be precluded in a sub-

sequent criminal proceeding, or vice versa

y We use the term "collateral estoppel" to refer

te issue preclusion. This Court generally uses the

term "res judicata" to refer to what is often called

“claims preclusion," which covers the preclusive

effect of a judgment upon a subsequent proceeding on

the basis of the same cause of action. Jones v

Chambers, 353 Mich 674; 91 NW2d 889 (1958).

8 The Second Restatement is limited to the effect

of prior adjudications in civil litigation, and does

not deal with the effect of a prior civil judgment in

a subsequent criminal prosecution. The ensuing cita-

tions to the Second Restatement are made with this

observation in mind.

are relatively recent and rare.

There is no set formula for determining

whether relitigation of an issue is precluded

by collateral estoppel. Initially it is ne-

cessary, according to the First Restatement

of Judgments, to establish that the same

parties are involved in both proceedings. !°

This Court last affirmed the "same party"

requirement in Howell, supra, at 42, wherein

we said that one of the "critical factors" in

applying collateral estoppel is the determin-

ation of whether the respective litigants

were parties or privy to a party to an action

in which a valid judgment has been rendered.

9 We borrow the efficient term "cross-over estop-

pel'"' from Brenner, "Crossing-over'"' The issue-preclu-

sive effects of a civil/criminal adjudication upon a

proceeding of the opposite character, 7 NI11 LR 14l

(1987), in which the phenomenon is reviewed and anal-

yzed.

se "The rendition of a judgment in an action does

not conclude parties to the action who are not adver-

saries under the pleadings as to their rights inter se

upon matters which they did not litigate, or have an

opportunity to litigate, between themselves."" Re-

statement Judgments, Section 82, pp 384-385. "A per-

son who is not a party but who is in privity with the

parties...is...bound by and entitled to the benefits

of the rules of res judicata."" Restatement Judgments,

Section 83, p 389.

A-9

Although the named-party plaintiff in

the instant case is the People of the State

of Michigan, in practical terms the party

against whom collateral estoppel is asserted

is the Jackson County Prosecutor, who also

represented Department of Social Services in

the probate court proceeding. Defendant

argues that even though the Department of

Social Services was the nominal party in the

earlier proceeding, both the department and

the prosecutor's office are creatures of the

state and thus should be considered to be the

same party. !? We agree. A functional analy-

sis of the role of the prosecutor in both

proceedings is appropriate in this case, and

leads us to conclude that privity is suffi-

cient to satisfy the "same party" require-

ment. 12

Hl This is the conclusion reached by the Court of

Appeals in People v Watt, 115 Mich App 172, 175; 320

NW2d 333 (1982); lv den 413 Mich 926 (1982). The Court

of Appeals in the instant case found Watt to be dis-

positive. 168 Mich App 384, 388; 423 NW2d 668 (1988).

12 One commentator has observed that "[ijn recent

decades, there seems to have developed a nearly uni-

versal agreement among judges and scholarly commenta-

tors alike that res judicata cannot be soundly admini-

stered by means of resolute adherence to a battery of

self-enclosed rules ... as constituting the sole and

sufficient grounds of decisions in cases involving the

preclusive effect of judgments."" Instead, collateral

(continued...)

A-10

In analyzing whether an issue was "act-

ually litigated" in the prior proceeding, the

Court must look at more than what has been

pled and argued. We must also consider whe-

ther the party against whom collateral estop-

pel is asserted has had a full and fair op-

portunity to litigate the issue. Blonder-

Tongue Laboratories, Ince v Univ of I1l Found-

ation, 402 US 313, 329; 91 S Ct 1434; 28 L Ed

2d 788 (1971).

It is clear that the issue of defen-

dant's alleged sexual abuse of his daughter

was the factual focus of the jury trial in

the probate court. The transcript reveals

that the testimony of witnesses and the argu-

ments of the parties centered on the allega-

tion of sexual abuse that is also the basis

of the criminal charge. At least in this

sense, it can be said that the issue whether

defendant sexually abused the child was "“act-

ually litigated."

We do not overlook that the rules govern-

ing child-protective proceedings in probate

oll (...continued)

estoppel determinations increasingly are the product

of "multifaceted analysis and balancing of competing

and vaguely defined governmental and private inter-

GSG8.00" Holland, Modernizing res judicata: Re-

flections on the Parklane Doctrine, 55 Ind L J 615,

618-619 (1980).

A-1l

court are significantly different than the

rules which apply to criminal trials. +3

we will later discuss, such procedural dif-

ferences raise serious doubts about’ the

soundness of applying "cross-over estoppel"

in situations such as this case presents.

However, we do not base our decision on a

finding that the prosecutor was seriously

disadvantaged or otherwise denied a full and

fair opportunity to litigate the issue of

defendant's alleged criminal conduct. In-

deed, in its brief the amicus curiae Prose-

cuting Attorneys Association stated that it

is "fair to say that the issue was fully

litigated."

We move now to a discussion of the

principal ground on which our decision rests.

Assuming arguendo that the issue as to

which collateral estoppel is asserted has

been fully litigated, we conclude that the

instant case falls short with respect to

another requirement, i.e., that the issue be

13 For example, see MCR 5.972(C)(1) (the burden of

proof in a probate proceeding is a preponderance of

the evidence); MCR 5.965(B)(6) (a referee, rather than

a judge, may preside at the trial); MCR 5.972(C)(2)

(statements by a child which do not fall within an

exception to the hearsay rule are admissible under

certain circumstances). See also n 20.

A-12

"necessarily determined" by the judgment in

the prior proceeding. An issue is necessari-

ly determined only if it is "essential™ to

the judgment. 1 Restatement Judgments, 2d,

Section 27, p 250, comment h, p 258. In or-

der for collateral estoppel to operate as a

bar to a subsequent prosecution, the jury in

the earlier probate proceeding just neces- |

sarily have determined that defendant was not |

guilty of the criminal sexual conduct charged |

in the prosecutor's complaint. MacKenzie v

Union Guardian Trust Co, 262 Mich 563, 581l-

582; 247 NW 914 (1933).

The inability of a court to determine

upon what basis an acquitting jury reached

its verdict, is, by itself, enough to pre-

clude the defense of collateral estoppel. See

anuo: Modern status of doctrine of res judi-

cata in criminal cases, 9 ALR 3d, 203, 240.

Collateral estoppel applies only where the

basis of the prior judgment can be ascer-

tained clearly, definitely, and unequivocal-

ly. See Sealfon v United States, 332 US 575;

68 S Ct 237; 92 L Ed 180 (1948).

The verdict in the first proceeding need

not explicitly have addressed the issue to be

precluded, however. The fact that a verdict

is a general verdict may make the determina-

tion of what issues have been decided proble-

matic, but it does not automatically bar the

A-13

application of collateral estoppel. Ashe v

Swenson, 397 US 436, 444; 90 S Ct 1189; 25 L

Ed 2d 469 (1970). In Ashe, the United States

Supreme Court suggested that in the case of

a general verdict of acquittal in a criminal

trial the determination of what was necessar-

ily determined by the verdict should start

with an examination of the record of the

prior proceeding and culminate in an inquiry

“whether a rational jury could have grounded

its verdict upon an issue other than that

which the defendant seeks to foreclose from

consideration." 1.**

That a verdict may conclusively deter-

mine certain issues by implication can be

illustrated by the instant case. Had the

jury in the earlier proceeding found that the

probate court had jurisdiction of the child,

that verdict would necessarily have deter-

mined that defendant had engaged in the con-

duct alleged, because that conduct was the

only basis submitted to the jury for bringing

her within the jurisdiction of the court. A

finding that the petition's allegations were

proved by a preponderance of the evidence

was thus essential to a verdict of jurisdic-

14 Of course, the heightened burden of proof in a

criminal trial would prevent the prosecutor from

asserting collateral estoppel against a defendant in

the criminal trial.

A-14

——————

tion.

The verdict of "no jurisdiction," how-

ever, does not support the opposite conclu-

sion. In the instant case, the probate judge

stated to the jury:

"I do instruct you that this is a

child protection case. It is not a

criminal case. Therefore, the issue

before you is not that of guilt or in-

nocence but the issue is whether [the

child] comes within the jurisdiction of

the Juvenile Division of the Jackson

County Probate Court. You should not

consider this proceeding in anyway

[sic] involved with the criminal law so

far as your deliberations are concern- |

ed Al

The clear import of that instruction is

that even if the jury believed that a crimin-

al violation had occurred, it was not requir-

ed to find the child's home or environment to

be unfit so as to warrant jurisdiction. +? In

t5 The standard jury instructions approved by the

Probate Judges Association of Michigan make this point

even more emphatically:

Instruction 25

"The legal definition of criminality is the same as

the common understanding of the word criminality.

Criminality is present when a person violates the

criminal law of the State of Michigan or of the United

(continued...)

A-15

short, a finding of innocence was not essen-

tial to a verdict of no jurisdiction; thus,

the verdict did not "necessarily determine"

the issue of criminal guilt or innocence. |

Furthermore, during the course of the

trial the jury learned that the child's

mother had exclusive physical custody of the

child and that visitations with her father

had ceased. The jury might have concluded on

that basis alone that the child did not re-

quire the protection of the probate court.

Thus the jury's verdict could rationally have

been based on grounds other than a determina-

tion of defendant's innocence of the allega-

15 (...continued)

States. Whether a parent's violation of the criminal

laws of the criminal laws of the State of Michigan or

of the United States renders the home or environment

of the child an unfit place for the child to live in

is for you to decide based on [sic] all the evidence

in the case." Owens, Juvenile jury instructions,

Inter-com 21, 33 (April, 1989). (Emphasis added.)

We are aware of the dangers of a “hypertechni-

cal" analysis of what has been necessarily determined

by a judgment, a danger warned of by the United States

Supreme Court in Ashe, supra at 444. In the instant

case, our conclusion that the jury verdict did not

determine the issue of criminal guilt or innocence is

not based on the fact that the verdict did not address

that issue, but on the fact the instruction to the

jury made clear that a determination of criminal guilt

or innocence was not essential to its verdict.

A-16

tions in the petition.

III

Apart from our conclusions that defend-

ant's guilt or innocence was not necessarily

determined by the jury verdict in the probate

proceeding, the purposes of a child-protec-

tive proceeding and a criminal proceeding are

so fundamentally different that the applica-

tion in this instance of collateral estoppel

would be contrary to sound public policy. !®

7 The Supreme Court of Kentucky applied similar

reasoning in its rejection of collateral estoppel in

Gregory v Kentucky, 610 SW2d 598 (Ky, 1980). Gregory

had argued that an express finding in a prior depend-

ency hearing that he had not sexually abused his sons

estopped his subsequent prosecution for first-degree

sodomy. Unlike the instant case, dependency was found

in the first proceeding, on the basis of considera-

tions other than the allegations of sexual abuse. The

court rejected Gregory's claim of collateral estoppel

becaase the criminality of Gregory's actions was not

before the first court, which was charged generally

with the well-being of the children, and because the

first court's express findings on sexual abuse were

not essential to its decision.

18 Such a public policy exception is recognized by

the 1 Restatement Judgments, 2d, Section 28, p 273:

"Although an issue is actually litigated and deter-

mined by a valid and final judgment, and the determin-

ation is essential to the judgment, relitigation of

the issue in a subsequent action between the parties

(continued... )

A-17

The purpose and focus of a neglect or

abuse proceeding in the juvenile division of

the probate court is the protection of child-

ren. To this end, proceedings may be initi-

ated by anyone who has information that a

child is in need of the court's protection. -?

To maximize protection of the child, and at

the same time safeguard the interests of

parents whose children are the subject of a

petition, the court rules provide for ex-

pedited proceedings. ~° The probate court's

protective function is also promoted by

procedure which allows for a rehearing or a

18 (...continued)

is not precluded in the following circumstances:

'"(5) There is a clear and convincing need for a

new determination of the issue (a) because of the po-

tential adverse impact of the determination on the

public interest or the interests of persons not then-

selves parties in the initial action."

See State v Fagan, 66 NY2d 815; 498 NYS2d 335; 489

NE2d 222 (1985), amd State v Alvey, 678 P2d 5 (Hawaii,

1984), for recent applications of this exception.

19 WoL 712A.11(1); MSA 27.3178(598.11)(1)

20 If a petition is filed and the child has been

removed from the home, a preliminary hearing must take

place within twenty-four hours. MCR 5.965(A). If the

child remains outside the home, the trial mst take

place within forty-two days. If the child has not

been taken into court custody, the deadline for trial

is six months MCR 5.972(A).

——aeaeEeE——_a

new trial whenever new evidence comes to

light suggesting that the child needs court

protection. MCR 5.992.

In contrast, the focus of a criminal

proceeding is on the guilt or innocence of

the accused. The interests of children may

be affected, e.g., those related to the ac-

cused, but such interests are not taken into

account in determining whether an accused is

guilty of criminal charges. As the United

States Supreme Court stressed in Standefer v

United States, 447 US 10, 25; 100 S Ct 1999;

64 L Ed 2d 689 (1980):

"'tT]he purpose of a ciminal court

is not to provide a forum for the as-

certainment of private rights. Rather

it is to vindicate the public interest

in the enforcement of the criminal law

while at the same time safeguarding the

rights of the individual defendant.'"

(quoting US v Standefer, 610 F2d 1076,

1093 [CA 3, 1979].) (Emphasis added).

The disparate purposes of the two types

of proceedings argue strongly against the ap-

plication of collateral estoppel. If we were

to endorse the proposition that a determina-

tion of no jurisdiction in a child-protective

proceeding operates to collaterally estop

criminal charges, we would invite the risk

A-19

that the proper functions of the two proceed-

ings would be compromised.

Typically, a child-protective proceeding

its initiated by the petition of a person

other than the prosecutor. Once the petition

is filed, however, the prosecutor must be

available at the request of the probate court

to review the petition for legal sufficiency

and to appear at the proceedings. MCR 5.914.

To avoid the effect of collateral estop-

pel, if it were to be made applicable, prose-

cutor would be required to develop criminal

charges indicated by the petition and bring

them to trial before a determination concern-

ing jurisdiction could be reached in the

probate proceeding. However, the burden of

proving criminal charges beyond a reasonable

doubt, added to problems presented by con-

flicting procedural’! and scheduling require-

ments of the two courts, would make it ex-

tremely difficult, and often impossible, for

the criminal charges to be brought to trial

in circuit court in advance of the jurisdic-

tion 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 con-

See n 20.

A-20

cern for the child, or to delay the probate

proceeding because of concern that a verdict

of nonjurisdiction would preclude criminal

prosecution of the accused.

We are persuaded by public policy con-

siderations that such an election between

criminal and child-protective proceedings

should not be judicially imposed through the

application of collateral estoppel. See

Joiner v State, 500 So 2d 81 (Ala Crim App,

1986) .°*

Our conclusion that collateral estoppel

should not apply in such situations is rein-

forced by the Restatement of Judgments, 2d,

which instructs that another exception to the

general rule of issue preclusion is available

when:

"A new determination of the issue

is warranted by differences in the

<2 At least one appellate decision in Michigan has

relied upon a substantial difference in the purpose of

the proceedings as a basis for denying collateral es-

toppel to issues common to both proceedings. Thang-

avelu v Dep't of Licensing & Regulation, 149 Mich App

546; 386 NW2d 584 (1986), lv den 425 Mich 864 (1986).

Other state courts have applied similar reasoning.

In re Katherine & Kimberly B, 126 Misc 2d 1085; 484

NYS2d 788 (1985); Gregory v Commonwealth, n 17 supra

at 600; People v Fagan, n 18 supra, and State v Alvey,

n 18 supra. Cf. Lockwood v Superior Court, 160 Cal

App 3d 667; 206 Cal Rptr 785 (1984).

A-21

quality or extensiveness of the pro-

cedures followed in the two courts or

by factors relating to the allocation

of jurisdiction between them..." Id.,

Section 28(3), p 273.

This exception focuses on an "analysis

of the comparative quality and extensiveness

of the prucedures followed in the two courts,

of their relative competence to deal with the

particular issue, and of the legislative pur-

pose in allocating jurisdiction between

them." Reporter's Note, 1 Restatement Judg-

ments, 2d, Section 28, p 287.23

Even if it were to be assumed that the

"quality" and "“extensiveness of the proced-

ures followed in the two courts" (probate and

circuit) are comparable, we believe that the

"competence" of the probate court to conclu-

sively determine in a child-protective pro-

ceeding the criminal guilt or innocence of an

accused is necessarily compromised by the

appropriate focus of the probate court on the

protection of children. Further, the dis-

parity of “legislative purpose in allocating

23 A similar analysis was recently employed by this

Court to reject the argument that an MESC adjudication

denying unemployment benefits should operate to

preclude litigation of issues in a subsequent suit for

breach of an employment contract. Storey v Meijer,

Inc, 431 Mich 368, 372-373; 429 NW2d 169 (1988).

A-22

jurisdiction" as between the two courts was

underscored by the Legislature when it in-

serted this language in the statute under

which the petition to protect the child was

filed:

"Proceedings under this chapter

shall not be considered to be criminal

proceedings." MCL 712A.1; MCA 27.3178

(598.1).°"

Because the issue of defendant's crimin-

al guilt or innocence was not necessarily de-

cided in the prior proceedings in the probate

court, principles of collateral estoppel do

not prohibit the prosecution of defendant. *°

a Prior to 1988 PA 224, the second quoted sentence

provided, "Proceedings under this chapter shall not be

deemed to be criminal proceedings."

25 Plaintiff also argues that collateral estoppel

should not preclude defendant's criminal prosecution

because there is no mutuality of estoppel, citing Re-

statement Judgments, Section 80 et seq., and Howell,

supra at 45-46. If the jury had found that the probate

court did have jurisdiction over the child, defendant

would not have been precluded from defending himself

against the criminal charge. Cf. 1 Restatement Judg-

ments, 2d, Sections 27-29, pp 250-303; 1B Moore, Fed-

eral Practice, Paragraph 0.441[3.-2], p 734, and

Bernhard v Bank of America National Trust & Savings

Ass'n, 19 Cal 2d 807; 122 P2d 892 (1942). Since we

are not required by this case to do so, we choose not

to revisit the mutuality rule in Howell at this time.

A-23

Accordingly, we reverse the decision of the

Court of Appeals and vacate the order dis-

missing the criminal charges against defen-

dant. We remand this case to the trial court

for further proceedings in conformity with

this opinion.

/s/ Robert P. Griffin

/s/ James H. Brickley

/s/ Patricia J. Boyle

/s/ Dennis W. Archer

/s/ Dorothy Comstock Riley

A-24

PEOPLE OF THE STATE

OF MICHIGAN,

Pleintiff-Appellant,

V No. 83363

GREGORY STEVEN GATES,

Defendant-Appellee.

LEVIN, J. (dissenting).

The question presented is whether the

Court of Appeals erred in concluding that

this prosecution is barred by the doctrine of

collateral estoppel. We would hold that it

did not, and would affirm.

A probate court jury found that the

court did not have “jurisdiccion" of defen-

dant Gregory Steven Gates’ daughter. The

majority concludes that the verdict of the

probate court jury did not "determine"!

that

Gates had not committed the act of sexual

abuse of his three-year old daughter charged

I The majority uses the phrase "necessarily de-

termine.'' The Restatement uses the term "determine":

"When an issue of fact or law is actually litigated

and determined by a valid and final judgment, and the

determination is essential to the judgment, the deter-

mination is conclusive in a subsequent action between

the parties, whether on the same or a different

claim.’ 1 Restatement Judgments, 2d, Section 27, p

250.

A-25

both in the information in the instant ‘case

and in the petition filed by the Department

of Social Services in the earlier tried

probate court proceeding. That conclusion is

premised on the manner in which the jury was

instructed.

We would hold that the entire record of

the probate court proceeding - the charge set

forth in the petition, all the evidence, the

arguments of counsel, and the instructions

read as a whole - should be assessed in de-

ciding whether the verdict of no jurisdiction

constituted a determination by the jury that

Gates had not sexually abused his daughter.

That decision cannot properly be premised on

a construction of a single sentence in the

instructions viewed in the abstract, separate

and apart from the entire record.

The judge instructed the jury, in the

form of the statute- and the standard in-

structions developed by probate judges, > that

the jury must find, from all the evidence,

whether the child's home or environment, by

reason of criminality, was an unfit place for

her to live. The question so posed, viewed

See n 3.

3 See text accompanying n 5.

A-26

in the abstract, did indeed permit the jury

to find that the criminal conduct charged did

not render her home unfit. It is possible

that the jury understood the instructions as

authorizing it to render a verdict that the

home was fit although it was convinced that

Gates had in fact sexually abused his daugh-

ter. And that the jury found that Gates had

in fact sexually abused his daughter but

nevertheless found that her home was fit.

Possible, but not likely.

The language of the statute” and the

phrasing of the instructions reflect recog-

nition that some acts of criminal misconduct

might not render a home unfit for a child.

A parent who circulates counterfeit money,

embezzles, pollutes the environment, or

commits other crimes that some might view as

' "Except as otherwise provided herein, the juv- |

enile division of the probate court shall have:

kk *

"(b) Jurisdiction in proceedings concerning any

child under 17 years of age found within the county

kk *

(2) Whose home or environment, by reason of neg-

lect, cruelty, drunkenness, criminality or depravity

on the part of a parent, guardian, or other custodian,

is an unfit place for the child to live in." MCL

712A.2; MSA 27.3178(598.2).

A-27

more or less serious, may nevertheless

provide a fit home for his children. The

statute does not permit the probate court to

assume jurisdiction unless the jury finds

that the criminal act renders the home unfit.

The jury was thus properly instructed

that "[w]hether a parent's violation of the

criminal law renders the home or environment

of the child an unfit place for the child is

for you to decide based upon all of the

evidence in the case." (Emphasis supplied. )°

’ The majority emphasizes the following instruc-

tion:

"I do instruct you that this is a child protection

case. It is not a criminal case. Therefore, the is-

sue before you is not that of guilt or innocence but

the issue is whether [the child] comes within the jur-

isdiction of the Juvenile Division of the Jackson

County Probate Court. You should not consider this

proceeding in anyway [sic] involved with the criminal

law so far as your deliberations are concerned."

That instruction seems to have echoed the penult-

imate paragraph of the prosecutor's closing argument:

"You know, at the very minimum, this is certainly

a case that the People believe by at least a prepond-

erance of the evidence, shows to you that this child

comes within the jurisdiction of the court and that's

what we're asking. It's not a criminal case. This

case is not a criminal case. The father cannot go to

jail as a result of the proceedings today here, and we

would ask you to find that the minor... comes within

the jurisdiction of the court so the court can keep an

(continued...)

A-28

—

There was, however, no evidence or argu-

ment-separate and apart from the evidence

tending to show that Gates had committed the

act of sexual abuse and the evidence to the

contrary-focusing on or tending to show whe-

ther the home or environment was or was not

fit. Thus, assuming arguendo that the jury

understood that it was authorized to find the

child's home fit although it found that her

father had sexually abused her, there is no

reason to suppose that the jury in fact found

that Gates had sexually abused his daughter

but nevertheless found that her home was fit.

The amended petition filed in the

probate court alleged that Gates had touched

his daughter's genitals for the purpose of

3 (...continued)

eye on the her and the court can keep an eye on the

father....""

The defendant then objected, and the court said

that it would give an instruction concerning what the

court does "as a result of your making a finding" and

asked the prosecutor whether that would be sufficient,

and the prosecutor said that it was.

A-29

sexual arousal or gratification.° All the

evidence introduced by both parties was

directed to the primary allegation in the

petition: that Gates had touched his daugh-

ter's genitals. Neither Gates nor his

lawyer contended, expressly or by innuendo,

during the examination of witnesses or during

Oral argument, that even if the jury found

° The original petition filed by the DSS was

amended by the proseuctor when he entered the case.

The amendment added the words, "for purposes of sexual

arousal or gratification."" The additional language

mirrors the penal code definition of sexual contact:

"the intentional touching of the victim's or actor's

intimate parts or the intentional touching of the

clothing covering the immediate area of the victim or

the victim's intimate parts, if that intentional

touching can reasonably be construed as being for the

purpose of sexual arousal or gratification." MCL

750.529a; MSA 28.788(1)(k).

In response to a question from one of the

justices during oral argument in this Court, the

prosecutor acknowledged that he had not alleged any

other conditions that would have rendered the home

unfit when he filed the proceeding.

During the trial, the prosecution did not go beyond

the scope of the petition's allegations either during

the presentation of the case in chief or during the

cross-examination of defense witnesses. Nor did Gates

introduce or explore any other issues during his case

in chief or on cross-examination of the people's

witnesses.

A-30

that Gates had so touched his daughter's gen-

itals for the purpose of sexual arousal or

gratification, her home was nevertheless 4a

fit place for her to live.

A different question would be presented

if three issues had been litigated: whether

the child had been so touched, whether Gates

had so touched her, and, if so, whether her

home was nevertheless a fit place for her to

live. Because no evidence was introduced fo-

cusing on whether the home was fit, even were

the jury to find that the criminal conduct

alleged in fact occurred, the majority's as-

sertion that factors other than Gates' guilt

or innocence may have been the basis of the

"no jurisdiction” verdict is tenuous at

best.

The majority asserts that because the jury

learned that the mother had exclusive custody of the

child,

"lt)he jury might have concluded on that basis alone

that [the child] did not require the protection of the

probate court. Thus the jury's verdict could ration-

ally have been based on grounds other than a determin-

ation of the defendant's innocence of the allegations

in the petition."" Slip op, 12-13.

Gates' lawyer did not ask the jury to consider that

the mother had exclusive custody of the child or

Gates' limited access to her in deciding whether the

probate court had jurisdiction of her.

A-31

The Maryland Court of Appeals held that

“the doctrine of collateral estoppel prevents

the State from criminally trying the defen-

dant on charges of sexual assault and related

offenses when, in a prior civil proceeding

based upon the same alleged incidents, the

court dismissed the action on the ground that

the State had failed to prove that the defen-

dant had committed the acts." Bowling v

State, 298 Md 396, 398; 470 A2d 797 (1984).

The court said that "(t]he civil character of

the first proceeding does not make inapplica-

ble the doctrine of collateral estoppel in a

ul 0

subsequent criminal case.}

a In Bowling, a father was charged with sexually

assaulting his adopted daughter. A child-in-need-of-

assistance petition was filed in circuit court. The

petition was based on allegations of sexual abuse. A

hearing was held to determine whether the daughter was

a child in need of assistance. "The testimony at the

hearing dealt almost exclusively with whether or not

the alleged incidents of sexual misconduct actually

occurred.'"" Id., p 399. The trial judge found that

sexual abuse had not been proven by a preponderance of

the evidence. Id. The court dismissed the petition.

Subsequently a criminal indictment was filed against

the father. "The indictment was grounded on the

identical factual allegations which formed the basis

for the earlier” petition. Id., p 400.

10 t4., p 404

A-32

In People v Sims, 32 Cal 3d 468; 186 Cal

Rptr 77; 651 P2d 321 (1982), the Supreme

Court of California applied the doctrine of

collateral estoppel in a criminal case that

was preceded by an administrative hearing. !}

The court said:

i Sims, a welfare recipient, was notified by the

Social Services Department of Sonoma County that she

had received AFDC and food stamp benefits to which she

was not entitled. The county claimed that she "had

failed to report that the children's stepfather... was

fully employed and living at home while respondent re-

ceived public assistance...."" Id., p 473.

The county then prepared a ''Notice of Action’

against Sims. ''The notice proposed to reduce future

cash grants to respondent to compensate for the al-

leged overpayments.'"' Id. Sims filed a request for a

"fair hearing" pursuant to a California statute '"'to

challenge the propriety of the County's action." Id.

Prior to Sims’ request for a fair hearing, "a criminal

complaint had been fiied against her in municipal

court. The complaint was based on the same allega-

tions of fraud that were the subject of the County's

"Notice of Action'" Id.

While the criminal prosecution was pending, Sims'

fair hearing was held. The hearing officer found that

"the County failed to meet its burden of proving that

respondent had fraudulently obtained welfare bene-

fits." Sims later moved to dismiss the criminal char-

ges pending against her. The trial court granted her

motion. Id., p 474.

The county had declined to present evidence against

Sims at the hearing. It contended that the DSS lacked

jurisdiction to hear the case since criminal charges

were pending in the municipal court.

A-33

"[Cjollateral estoppel may be ap-

_plied to decision made by administra-

tive agencies '[w]hen an administrative

agency is acting in a judicial capacity

and resolves disputed issues of fact

properly before it which the parties

have had an adequate opportunity to

litigate...'"/

The court added that "[t]he [admini-

strative agency] decision exonerating [the

accused] of fraud may be given collateral

estoppel effect. This is true even where, as

in this case, the successive proceedings in-

volved are different in nature and the pro-

ceeding to be estopped is a criminal prose-

cution.."2

i Id., p 479.

Similarly, see People v Watt, 115 Mich App 172,

182; 320 NW2d 333 (1982), where the Court of Appeals

applied the doctrine of collateral estoppel to bar a

criminal prosecution and said:

"Since the very essence of the criminal proceeding

was based upon the allegation that defendant fraudu-

lently misrepresented to the DSS regarding whether or

not her ex-husband resided with her in her home, and

since, in an appropriate proceeding, the administra-

tive law judge held that the DSS had not established

that fact...we believe that the criminal conviction

must here be reversed and the criminal proceedings

dismissed."

13 td., p 482.

A-34

SSIOSSSSSS SSS

Bowling and Sims are, however, distin-

guishable because in both cases the trial

court in the civil proceeding specifically

found that the criminal misconduct charged in

the criminal prosecution had not occurred

while here there was not such a specific

finding.

III

Whenever there is a general verdict -

most jury verdicts are general verdicts -

there will be difficulty deciding what the

jury determined regarding the underlying dis-

puted issues of fact requisite to the ulti-

mate finding. In deciding whether an issue

of fact was actually litigated and determin-

ed, a court should assess the entire record

and decide the question based on the proba-

bilities and not possibilities.

That was the approach of the United

States Supreme Court in Ashe v Swenson, 397

US 436; 90 S Ct 1189; 25 L Ed 2d 469 (1970).

The Court said that "[w]Jhere a previous judg-

ment of acquittal was based upon a general

verdict" in deciding whether relitigation is

barred by the doctrine of collateral estop-

pel, a court should

""examine the record of the prior

proceeding, taking into account the

pleadings, evidence, charge, and other

A-35

relevant matter, and conclude whether

a rational jury could have grounded its

verdict upon an issue other than that

which the defendant seeks to foreclose

from consideration. '"!4

The majority cites Ashe with apparent

approval, but does not in its analysis employ

the standard there stated.

The trial centered on Gates’ culpabil-

ity. In his closing remarks to the jury, the

judge said: "When you deliberate, you are

only allowed to consider the evidence which

has been properly admitted in this case."

The only "evidence" that had been admitted

was testimony concerning whether the child

had been molested and, if so, whether Gates

was the person who had molested her. No

evidence otherwise bearing on the fitness of

her home had been introduced.

Where the trier of fact/court renders

alternative determinations of fact or law

either of which would have supported the

earlier judgment, neither determination is

116

"essential to the judgment. Where, how-

Mh td... p Ghd

Slip op, p 10.

16 1 Restatement Judgments, 2d, Section 27, comment

h, p 258.

See n 1 for Section 27 of the Restatement Judg-

ments, 2d.

A-36

ever, only one issue is litigated,

only one

issue could have been determined, and ordin-

arily there is no reason to suppose that an-

other issue, not litigated, was determined or

was determinative.

The parties frame the debate on a given

issue through their presentations. They de-

fine the parameters in which the jury will

consider the competing evidence and argu-

ments. When the parties to a controversy

plead, litigate, and submit an issue to the

jury, a general verdict should ordinarily be

regarded as deciding that issue. There

should be a strong presumption that the

decision of the jury is based on the issue

pled, litigated, and submitted, rebuttable

only by compelling evidence that the verdict

did not decide that issue.

Here the only issue that was litigated

was whether Gates had sexually abused his

daughter. The overwhelming probability is

that the factual issue determined by the

jury, when it rendered its verdict, was

whether Gates had sexually abused his daugh-

ter, as the people so vigorously, but so far

unsuccessfully, contended.

‘7 The majority concedes that the question of

Gates' guilt or innocence was the factual focus of the

probate proceeding such that it was “actually litigat-

ed.'' Slip op, p 8.

A-3/7

There is considerable uncertainty in

most lawsuits. The law does not require

absolute proof of certainty. The standard

applied by the majority in the instant case,

in deciding whether the factual issue of

Gates' culpability was determined by the

jury, is higher than the standard the jury,

on the retrial ordered by the majority, will

apply in again deciding that factual issue.

There is considerable uncertainty in

most lawsuits. The law does not require

absolute proof of certainty. The standard

applied by the majority in the instant case,

in deciding whether the factual issue of

Gates' culpability was determined by the

jury, is higher than the standard the jury,

on the retrial ordered by the majority, will

apply in again deciding that factual issue.

The doctrine of collateral estoppel

evolved in response to “the concern of the

public in the settlement of litigation in the

interests of a stable society and in minimiz-

ing expense and effort of the courts, as well

as of the litigants."18

Application of the

doctrine in a case where a person's liberty

interests are at stake provides assurance

that

18 Polasky, Collateral estoppel-Effects of prior

litigation, 39 Iowa LR 217, 219 (1954).

"matters once determined in an adver-

sary action shall be deemed conclusive,

thus furnishing a basis upon which to

predicate future conduct without fear

of repeated vexation arising from re-

litigation of determined issues."19

The people failed to convince the jury

of Gates' guilt. He should not be subjected

to relitigation of the same basic issue -

whether he sexually molested his daughter -

in a criminal prosecution.

The majority states that the purposes of

a child-protective proceeding and a criminal

prosecution are so different that application

of the doctrine of collateral estoppel would

Al-

though the general purposes of the two pro-

be contrary to sound public policy.

ceedings differ, there is an overlap, and the

purposes are not mutually exclusive.

The instant case demonstrates that a

function of the probate court proceeding may

in fact be to determine whether a parent en-

gaged in criminal misconduct with respect to

the parent's child. Where the probate court

petition is based solely on an allegation of

19 Id., pp 219-220.

20 Slip op, p 13.

A-39

parental criminal misconduct with respect to

the child, the fate of both the child and the

parent are inextricably tied to the determin-

ation of the parent's guilt or innocence.

The probate court cannot act to "protect" the

child by acquiring jurisdiction of the child,

unless the jury finds that the parent is

guilty of the criminal misconduct respecting

the child charged in the petition. Where

sexual abuse is charged, the purpose sought

to be achieved by initiating the abuse/neg-

lect proceeding can only be realized upon a

finding by the jury that the parent did in

fact commit the charged act of criminal mis-

conduct respecting the child.

In an abuse/neglect proceeding, various

considerations may inform the jury's verdict.

The application of the doctrine of collateral

estoppel in a particular case does not, how-

ever, depend on what may occur in another

case. It depends on what occurred in the

particular case. In the instant case -

typical or atypical - the only issue pled,

litigated, and submitted to the trier of fact

was Gates' guilty or innocence. No evidence

bearing on any other issue was provided for

the jury's consideration. Collateral estop-

pel effect should not be denied where there

is issue identity, where only one issue was

pled, litigated, and submitted to the jury,

A-40

_————<<&x«a

because in another case more than one issue

might be litigated or because there is in

theory a difference in the primary purpose of

the two proceedings. ~1

able:

In People v Fagan, 66 NY2d 815; 498 NYS2d 335; 489

NE2d 222 (1985), and State v Alvey, 67 Hawaii 49; 678

P2d 5 (1984), the courts refused to apply collateral

estoppel in a subsequent criminal case to an issue

that was previously decided in a civil proceeding.

The courts found that the prosecution in the criminal

cases did not have a fair opportunity to litigate the

issue in the earlier civil proceeding: '[T]he Peo-

ple's incentive to litigate a felony prosecution would

presumably be stronger than in a parole revocation

proceeding...'' Fagan, supra, p 816. "[T]he disciplin-

ary committee's investigative ability is limited."

Alvey, supra, p 56.

In this case, the majority acknowledges that the

issues were fully litigated during the probate court

proceeding. See slip op, p 8.

In Thangavelu v Licensing Dep's, 149 Mich App 546,

555; 386 NW2d 584 (1986), lv den 425 Mich 864 (1986),

the Court of Appeals affirmed a decision denying col-

lateral estoppel effect in a civil case of an issue

that had previously been decided in a criminal case.

The Court said that "acquittal of criminal charges

does not necessarily bar an administrative revocation

proceeding based on the same issues, since a lesser

degree of proof is utilized in the latter when making

findings of fact."’ Thangavelu recognized that a judg-

ment of acquittal in a criminal case, where the stand-

ard is proof beyond a reasonable doubt, does not fore-

(continued. .. )

The cases relied on by majority are distinguish-

A-41

The majority contends that applying the

doctrine of collateral estoppel in the in-

stant case would, in future cases, oblige a

prosecutor to choose between commencing a

criminal prosecution to vindicate the public

interest in ascertaining guilt and filing a

petition in probate court to protect the in-

terests of the child. 2? Reference is made to

the so-called "42 day" rule set forth im MCR

5.972, which provides that if a child has

been taken from the home, i.e., the child is

"in placement," "the trial must commence as

soon as possible but not later than 42 days

after the child is placed by the court..."

The majority argues that because of the

forty-two-day rule, it would be "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 ."79

The scheduling problem - which case to

try first - can be resolved by agreement of

the parties or by an amendment of the court

dl (...continued)

close the relitigation of the same issue in a civil

proceeding where the lower preponderance of the evid-

ence standard is applicable. In this case the sequ-

ence of cases is civil to criminal.

a Slip op, pp 16-17.

23 Slip op, p 15.

A-42

the parties or by an amendment of the court

rules that this Court has the power to

decree. The Court is currently considering

a proposal to extend the timeframe from

forty-two to sixty-three days.

Prosecutors are generally called upon to

participate in an abuse/neglect proceeding. -"

When the prosecutor is intimately involved in

the litigation, such that the prosecutor has

a full and fair opportunity to litigate the

issues in an abuse/neglect proceeding, and

those issues are actually litigated in the

probate proceeding and are the same issues

sought to be litigated in a criminal prosecu-

tion, the doctrine of collateral estoppel

should apply.*>

24 0A) General. Om request of the prosecuting

attorney shall review the petition for legal suffi-

ciency and shall appear at any child protective pro-

ceeding..." MCR 5.914(A).

"[U]pon request of the department of social serv-

ices ..., the prosecuting attorney shall serve as a

legal consultant to the department...at all stages of

the proceeding."" 1988 PA 224, MCL 712A.17(5); MSA

27.3178(598.17)(5).

25 If the prosecutor were to be called into a case

by the court under MCR 5.914(A), but oppose the peti-

tion, then an argument might be made because the pro-

secutor's interest would conflict with that of the

(continued...)

A-43

The probate court is a court of

record, °° in contrast with an administrative

agency. ~/ The prosecutor generally repre-

sents the petitioner in a child-protective

proceeding. The lawyers on both sides are

likely to be the same in both the child

protective proceeding and the criminal

proceeding. This is not a case where the

litigants did not have as strong an incentive

to litigate in the earlier proceeding as they

have in the later proceeding.

[f the prosecutor does not participate

in the probate court proceeding, application

of the doctrine of collateral estoppel may be

inappropriate because the prosecutor has not

had a full and fair opportunity to lLiti-

gate.°9

25 (...continued)

petitioner. See 46 Am Jur 2d, Judgments, Section

532,p 686.

26 wc 600.801; MSA 27A.801.

27 But see People v Sims, supra.

28 The Court of Appeals in People v Watt, n 12

supra, p 179, People v Grainger, 117 Mich App 740,

753-754; 324 NW2d 762 (1982), and in this case, People

v Gates, 168 Mich App 384, 387-388; 423 NW2d 668

(1988), said that because an administrative agency and

a county prosecutor's office are "creatures of the

same sovereign,'’ there is sufficient privity between

(continued...)

A-44

——

The record does not substantiate the

majority's assertion that the competence of

the probate court to determine in a child-

protective proceeding the criminal guilt or

innocence of the parent "is necessarily conm-

promised by the appropriate focus of the pro-

bate court on the protection of children."*°

The prosecutor in_- the instant child-

protective proceeding focused entirely on the

asserted criminal guilt of Gates. The pro-

secutor was not compromised. Nor was the

probate court. The prosecutor simply failed

to convince the jury. The prosecutor had his

day in court. Gates should not be required

to “run the gantlet" again. 29

a (...continued)

the parties to establish the "same parties" require-

ment for collateral estoppel.

These cases rely on United States v Wheeler, 435 US

313, 320-321; 98 S Ct 1079; 55 L Ed 2d 303 (1978).

Wheeler may not, however, be applicable because the

Double Jeopardy Clause does not apply unless there are

two criminal prosecutions. See Sunshine Anthracite

Coal Co v Adkins, 310 US 381, 403; 60 S Ct 907; 84 L

Ed 1263 (1940), and State v Fritz, 204 Conn 156, 171-

176; 527 A2d 1157 (1987).

Slip op, p 17.

30 Green v United States, 355 US 184, 190; 78S Ct

221; . L Ed 2d 199 (1957); Ashe v Swenson, supra, p

446.

A-45

We would affirm the decision of the

Court of Appeals.

/s/ Charles L. Levin

/s/ Michael F. Cavanagh

A-46

APPENDIX B

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

V No. 98229

GREGORY STEVEN GATES,

Defendant-Appellee.

BEFORE: R.M. Maher, P.J., and J.H. Shepherd

and K. Tertzag*, JJ.

PER CURIAM

Plaintiff appeals as of right from the

order of the Jackson Circuit Court holding

that the criminal prosecution of defendant

for second-degree criminal sexual conduct,

MCL 750.520c(1)(a); MSA 28.788(3)(1)(a), was

barred by collateral estoppel for the reason

that a probate court jury had previously

found, at an adjudicative hearing in that

court, that defendant had not sexually abused

the subject child. We affirm.

On February 18, 1986, a juvenile peti-

tion was filed in the Jackson County Probate

* Circuit Judge, sitting on the Court of Appeals

by assignment.

Court requesting court intervention due to

defendant's alleged sexual abuse of his

daughter Nicole, who was then three years and

ten months old. MThe petition alleged that

sometime on or about February 13, 1986, de-

fendant had touched Nicole's genitals for the

purpose of sexual arrousal or gratification.

Prior to a preliminary examination on the pe-

tition, defendant was also charged in the

Jackson County Circuit Court for second-

degree CSC, arising from the same occurrence.

On June 16 and 17, 1986, a jury trial in

the Jackson Probate Court was held on the

juvenile petition. In his opening statement,

the prosecutor explained that he would show

that defendant had touched Nicole in a sexual

manner and this warranted the probate court's

jurisdiction and intervention.

During the prosecution's proofs, Nicole

testified that she was asleep in a chair at

defendant's home when he touched her hard in

the vaginal area, awakening her. . She also

said that defendant told her not to tell her

mother, from whom defendant was divorced and

shared Nicole's custody, or the judge about

the touching. A Catholic Social Services

therapist testified that in her opinion

Nicole had been sexually molested. Deborah

Gates (Nicole's mother) and another social

worker testified regarding the child's marked

B-2

mood change. No other evidence was presented

to show neglect, cruelty, or defendant's un-

fitness to parent, aside from the alleged

sexual touching.

The probate court instructed the jury

that if it found by a preponderance of the

evidence, that defendant's home was unfit for

Nicole because of neglect, cruelty, criminal-

ty, or depravity by defendant then it should

find that the court has jurisdiction over the

child. The jury returned a verdict that the

court did not have jurisdiction over Nicole.

When polled, all six jury members agreed that

they believed Nicole had not been neglected

in the manner alleged by the Department of

Social Services (DSS).

On June 20, 1986, the DSS filed a motion

for judgment notwithstanding the verdict,

which the probate court granted. That order

was subsequently reversed by the circuit

court and the juvenile petition was ordered

dismissed.

On August 6, 1986, defendant moved to

dismiss the criminal charges on the- ground

that the prosecution was barred by the doc-

trine of collateral estoppel. The trial

court granted that motion and dismissed the

second-degree CSC charges against defendant.

This appeal of right followed.

The doctrine of collateral estoppel bars

B-3

the relitigation of issues previously decided

where such issues are raised in a subsequent

suit by the same parties based upon a differ-

ent cause of action. People v Watt, 115 Mich

App 172, 175; 320 NW2d 333 (1982), lv den 413

Mich 926 (1982). However, only those issues

actually litigated in a prior litigation are

conclusively decided for purposes of any sub-

sequent action. ld.

The identical issue as presented herein

was discussed by this Court in Watt, supra.

There, the DSS terminated defendant's welfare

benefits for the reason that she had commit-

ted fraud by failing to inform it that her

ex-husband resided with her. . Defendant chal-

lenged the termination of her benefits and a

hearing officer found in her favor. The of-

ficer held that there was insufficient evid-

ence that defendant's ex-husband resided with

her, and consequently ordered that benefits

be reinstated. The DSS did not appeal that

decision. Thereafter, criminal charges were

brought against defendant for the same acts

and she was convicted of welfare fraud. On

appeal, this Court overturned that convic-

tion, noting among other things that (1) the

burden of proof is higher in a criminal pro-

ceeding than in an administrative hearing,

and (2) a county prosecutor and the DSS are

"both creatures of the same sovereign, name-

B-4

ly, the State of Michigan." (Footnote omit-

ted.) Id., p 179. See also, People v

Grainger, 117 Mich App 740, 753-754; 324 NW2d

762 (1982); Anno: Doctrine of res judicata or

collateral estoppel as barring relitigation

in state criminal proceedings of issues pre-

viously decided in administrative proceed-

ings, 30 ALR4th 856. Cf. Thangavelu v Dep't

of Licensing & Regulation, 149 Mich App 546,

554-556; 386 NW2d 584 (1986), lv den 425 Mich

864 (1986); People v Bookmeyer, 127 Mich App

69, 71-72; 338 NW2d 557 (1983), lv den 419

Mich 854 (1984). |

We hold that Watt, supra, is dispositive

of this appeal. The basis of the juvenile

petition against defendant was his alleged

sexual abuse of Nicole. No other allegations

of abuse, neglect, or unfitness were made or

proven at the adjudicative hearing. Thus,

the subject matter of the petition was the

same as the criminal charge. Moreover, it is

clear that the issue was fully litigated in

the probate court as the DSS presented sev-

eral witnesses in support of its case.

Despite the DSS's efforts, the jury -- apply-

ing a lesser standard than required in a

criminal proceeding -- did not find defendant

guilty of the alleged sexual assault. Logic

dictates that defendant could not be found

guilty of the same misconduct under the high-

B=5

er standard of proof. Finally, we agree that

the DSS and the county prosecutor, being

creatures of the same sovereign, are the same

party for purposes of collateral estoppel.

For these reasons, the trial court correctly

ruled that the docrine of collateral estoppel

barred defendant's prosecution on charges of

second-degree CSC.

Our disposition of this issue renders’ it

unnecessary to address defendant's claim that

the prosecution was also prohibited by the

double jeopardy clause of the United States

Constitution. US Const, Am V & XIV.

Affirmed.

/s/ Richard M. Maher

/s/. John H. Shepherd

/s/ Kaye Tertzag

B-6

APPENDIX C

STATE OF MICHIGAN

CIRCULT COURT FOR THE COUNTY OF JACKSON

PEOPLE OF THE STATE

OF MICHIGAN,

Plaintiff, File #86-41238-FH

=" OPINION BY THE

GREGORY STEVE GATES, COURT

Defendant.

Edward J. Grant (P14272)

Assistant Prosecuting Attorney

Nicholas Smith (P20697)

Attorney for Defendant

Defendant is charged in an Information

in which it is alleged he committed criminal

sexual conduct in the second degree on Febru-

ary 13, 1986. The alleged victim is the de-

fendant's daughter, who was then three years,

ten months old. Defendant has brought these

motions:

1. A motion to dismiss on the grounds

of collateral estoppel.

2. A motion to quash the information on

grounds of lack of proof of the offense by

competent testimony at the preliminary ex-

amination, and,

3. A motion for order authorizing inde-

pendent evaluation of the alleged victin.

The motion to dismiss on grounds of col-

lateral estoppel must be granted.

On February 18, 1986, a petition was

filed in the Jackson County Probate Court al-

leging sexual contact with the daughter. The

petition was amended prior to trial to allege

that the touching of his daughter by the de-

fendant "could be reasonably construed as be-

ing for purpose of sexual arousal" thus

bringing the matter squarely within the terms

of the criminal statute under which defendant

is being prosecuted.

A trial by jury was held in probate

court on June 16, 1986. At the trial, the

alleged victim, her mother, Kathy Arnold, a

social worker, and two other witnesses tes-

tified. The three named witnesses, and two

others, are endorsed on the criminal informa-

tion. The jury returned a verdict in favor

of the defendant, determining thereby that

the prosecution had not proved a case of

sexual abuse by a preponderance of the evi-

dence.

In the meantime, a criminal information

was filed charging the defendant with crimi-

nal sexual conduct in the second degree on or

about February 13, i986.

C-2

On July 28, 1986, the probate judge

granted the prosecutor's motion for judgment

notwithstanding the verdict and ordered a new

trial, on the issue of defendant's sexual

abuse of his daughter. The probate court

ruling was appealed to circuit court, and on

October 6, 1986, the circuit judge entered an

order granting the appeal, vacating the Order

of July 28, 1986, and dismissing the petition

in probate court.

It is unnecessary to discuss defendant's

propositions 2 and 3.

Defense counsel shall prepare and submit

an Order of Dismissal.

/s/ Russell E. Noble

Russell FE. Noble,

Circuit Judge

Dated: December 3, 1986.

APPENDIX D

STATE OF MICHIGAN

CIRCUIT COURT FOR THE COUNTY OF JACKSON

PEOPLE OF THE STATE

OF MICHIGAN,

Plaintiff Case No. $6-41238-FH

Vv Hon. Russell E. Noble

GREGORY STEVE GATES,

Defendant /

EDWARD J. GRANT, P14272

Chief Asst. Prosecuting Attorney

312 S. Jackson Street

Jackson, MI 49201

NICHOLAS SMITH, P20697

Attorney for Defendant

16000 W. Nine Mile, Ste. 114

Southfield, MI 48075

313-557-5599

ORDER OF DISMISSAL

At a session of said Court, held

in the Courthouse located in

Jackson County, Michigan, on

DEC 17 1986

Present: HONORABLE HON. GORDON W. BRITTEN

CIRCUIT JUDGE

This matter having come before the Court

upon Defendant's Motion to dismiss on grounds

of collateral estoppel; the Court having

heard arguments of counsel for both parties

and having entered its Opinion dated December

3, 1986, and the Court being fully informed

| D-1

in the premises;

IT IS ORDERED that Defendant's Motion to

Dismiss be and the same is hereby granted.

IT IS FURTHER ORDERED that the above-

entitled cause is hereby dismissed.

IT IS FURTHER ORDERED that the bond is

cancelled and the Defendant is hereby dis-

charged.

/s/ Hon. Gordon W. Britten

CIRCULT JUDGE (P11216)

In the Absence of Circuit

Court Judge Hon. Russell E.

NOBLE P18317

D-2

APPENDIX E

STATE OF MICHIGAN

THE DISTRICT COURT - COMPLAINT

JUDICIAL DISTRICT NO 12TH

COUNTY OF JACKSON CASE NO. 86774FY

THE PEOPLE OF THE Date of Offense On or

STATE OF MICHIGAN, about March 29, 1985

through on or about

vs. February 13, 1986

GREGORY STEVE GATES Location Leoni Town -

W/M DOB: 2-14-62 ship

137 Phillips Court

Michigan Center, MI Complainant Dep. James

Sager

#138-1732-86

ComplainingWitness

Defendant(s) Dep. James Sager #5161

WITNESSES (*Preliminary Exam)

STATE OF MICHIGAN)

- : )ss.

COUNTY OF JACKSON)

The above-named COMPLAINING WITNESS

being duly sworn before the undersigned

Judge, Magistrate, or Clerk of the District

Court, upon the date indicated below, says

that heretofore on the DATE OF OFFENSE listed

above, at the LOCATION listed above in the

said County, State of Michigan, the above-

E-1

Pacem

named Defendant(s),

did engage in sexual contact with

another person, to-wit: Nichole

Gates, said person being under 13

years of age; contrary to MCL 750.

520c(1)(a); MSA 28.788(3)(1)(a).

contrary to the form of the statute in such

case made and provided, etc.

WARRANT AUTHORIZED BY

/s/ Joseph S. Filip

P22920 Prosecuting Attorney

WHEREFORE, the said Complainant prays

that the said Defendant(s) may be apprehend-

ed and held to answer this Complaint and

further dealt with in relation to the same,

as law and justice may require.

Dated May 2, 1986 Subscribed and sworn

to on this day by

No. /s/ Dep. J. Sager

Complaining Witness

/s/

Before the above-named Magistrate

E~2

APPENDIX F

AMENDED PETITION

STATE OF MICHIGAN

PROBATE COURT FOR THE COUNTY OF JACKSON

JUVENILE DIVISION

IN THE MATTER OF:

HONORABLE

NICOLE GATES, FREDERICK SILL

(P20459)

MINOR.

JEFFREY L. VICTOR (P36860)

Assistant Prosecuting Attorney

312 S. Jackson Street

Jackson, Michigan 49201

Phone: (517) 788-4283

NICHOLAS SMITH (P20697)

Attorney for Father of Minor

16000 W. Nine Mile, Ste. 114

Southfield, Michigan 48075

Phone: (313) 557-5599

PHILLIP H. BERKEMEIER (P28581)

Attorney for Mother of Minor

6692 Spring Arbor Road

Jackson, Michigan 49201

Phone: (517) 750-2292

JAMES S. TRECIAK (P21551)

Guardian Ad Litem

204-1/2 S. Jackson Street

Jackson, Michigan 49201

Phone: (517) 787-1972

AMENDED PETITION

Nicole Gates (DOB: 3-29-82)

Allegations: On or about February 13, 1986,

Nicole Gates was interviewed by the petition-

F-1

er, during this interview, Nicole Gates

stated that her father had touched her "pee

pee real hard". While stating this, Nicole

showed petitioner what she meant by placing

both of her hands on her vaginal area.

Nicole further illustrated this while using

the sexually explicit dolls by placing the

adult male dolls hand on her (Nicole's)

vaginal area. Nicole stated that when this

occurred she had no clothes on.

It is also alleged that: This touching by

the father could reasonably be construed as

being for purposes of sexual arousal or

gratification;

Nicole further revealed that she had not

told her mother of her father's actions be-

cause she was afraid of what her father

would do.

Due to the aforementioned information, I am

respectfully requesting court intervention

in this matter.

Respectfully submitted,

/s/ Jeffrey L. Victor P36860

JEFFREY L. VICTOR (P36860)

Assistant Prosecutor

312 S. Jackson Street

Jackson, Michigan 49201

Phone: (517) 788-4283

DATED: June 10, 1986

F-2

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.