Object Type: Folder
In Folder: Michigan Attorney General, Opinions, Biennial Reports and Indexes, 1963-2022
The provisions of the Revised School Code, 1976 PA 451, MCL 380.1 et seq, do not impose any obligations on a higher education institution to require criminal history checks or fingerprints of its employees who provide instruction to K-12 students. The board of a school district or intermediate school district, or the governing body of a public school academy or nonpublic school is obligated to obtain a criminal history check of employees of a higher education institution who provide instruction to any K-12 students if such instruction is provided: 1) pursuant to a contract with the school board or governing body of the K-12 institution; 2) regularly and continuously - on more than an intermittent or sporadic basis; and 3) "at school," meaning "in a classroom [or] elsewhere on school property," as provided in MCL 380.1230a(15).
A person in Michigan may lawfully possess a weapon that fires shotgun shells; has not been constructed from a modified shotgun; has an overall length of less than 26 inches and a barrel length of less than 18 inches; and is not designed or intended to be fired from the shoulder, if the person complies with the purchase and registration requirements for owning a pistol set forth in the Firearms Act, 1929 PA 372, MCL 28.421 et seq.
Const 1963, art 1, § 6 provides a constitutional right in Michigan to bear firearms for self defense, subject to reasonable regulation by the State. The firearm and ammunition restrictions set forth in Wildlife Conservation Order section 2.1(3) dealing with the possession of a rifle or shotgun in areas frequented by deer during the five-day period immediately preceding the beginning of firearm deer season are a reasonable exercise of the State’s police power, and do not violate the right to bear arms established by Const 1963, art 1, § 6. The Legislature may, by statute, amend or repeal the firearm and ammunition restrictions set forth in Wildlife Conservation Order section 2.1(3).
A county land bank fast track authority established under the Land Bank Fast Tract Act, 2003 PA 258, MCL 124.751, et seq, may acquire title to property from a private owner and reconvey that property to the same owner making that property exempt from ad valorem property taxes during the period that title is held by the county land bank fast track authority, and for the five-year period after it is reconveyed. For those tax consequences to attach, the county land bank fast track authority must obtain and reconvey actual title, with recognized indicia of ownership.
Under the General Property Tax Act, 1893 PA 206, MCL 211.28(4), a city may provide for the size, composition, and manner of appointment of the city’s board of review by charter, and a city’s charter provision will govern such appointments unless the charter contravenes other provisions of law. MCL 117.36. A city charter that provides for the appointment of the city assessor, mayor, and three city council members to the board of review conflicts with the Incompatible Public Offices Act, 1978 PA 566, MCL 15.181 et seq, and renders these positions incompatible because the office of board of review member ultimately supervises the work of the office of city assessor and because the charter makes the office of board of review member subordinate to, or under the supervision of, the offices of mayor or city council member. If, however, a city has a population of less than 25,000 and the city’s governing board authorizes the appointment of these public officers to the board of review, such officers may serve as board of review members regardless of the incompatibility. MCL 15.183(4)(c).
Section 1250 of the Revised School Code, MCL 380.1250, does not conflict with Const 1963, art 11, § 6. Article 11, § 6 does not prohibit the Legislature from enacting or amending legislation requiring that a school district, public school academy, or intermediate school district establish a performance-based compensation method for teachers under contract or tenure. In carrying out this statutory mandate, a school district, public school academy, or intermediate school district does not violate art 11, § 6.
A municipality cannot require purchasers of tax foreclosed property to pay delinquent utility-service charges incurred by former owners of the foreclosed property before the municipality will provide utility services to the new owners of the property. Under the General Property Tax Act, MCL 211.1 et seq, a judgment of foreclosure extinguishes all liens and interests related to unpaid utility-service charges against the property. MCL 211.78k. A municipality may, however, seek to recover such charges by including the delinquent charges in the cost of the property at the time it is offered for sale under the General Property Tax Act, or by instituting other lawful action against the former owners.
The Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, prohibits the joint cooperative cultivation or sharing of marihuana plants because each patient’s plants must be grown and maintained in a separate enclosed, locked facility that is only accessible to the registered patient or the patient’s registered primary caregiver.
The possession, manufacture, or sale of a firearm silencer is permitted in Michigan under MCL 750.224(1)(b) if the person is licensed or approved to possess, manufacture, or sell such a device by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, as required by MCL 750.224(3)(c). Possession, manufacture, or sale of a firearm silencer by an unlicensed or unapproved person is a felony, punishable by up to five years imprisonment under MCL 750.224(2).
2009 PA 188, which prohibits smoking in public places and food service establishments, applies exclusively to the smoking of tobacco products. Because marihuana is not a tobacco product, the smoking ban does not apply to the smoking of medical marihuana. The Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, prohibits qualifying registered patients from smoking marihuana in the public areas of food service establishments, hotels, motels, apartment buildings, and any other place open to the public. An owner of a hotel, motel, apartment building, or other similar facility can prohibit the smoking of marihuana and the growing of marihuana plants anywhere within the facility, and imposing such a prohibition does not violate the Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq.
Section 4(h) of the Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26424(h), which prohibits the forfeiture of marihuana possessed for medical use, directly conflicts with and is thus preempted by, the federal Controlled Substances Act, 21 USC 801 et seq., to the extent section 4(h) requires a law enforcement officer to return marihuana to a registered patient or primary caregiver upon release from custody.
The General Property Tax Act, MCL 211.1 et seq., does not authorize the 3% penalty described in section 44(3) of the Act, MCL 211.44(3), to be returned to the county treasurer at the time of the delinquent tax settlement. But under section 107(1) of the Act, MCL 211.107(1), a city or village charter or ordinance may provide for the imposition and return of a similar penalty. Delinquent special assessments, including civil fines, may only be placed on the property tax roll, collected in a like manner as taxes, and foreclosed under the provisions of the General Property Tax Act, MCL 211.1 et seq., if expressly authorized by statute. While the General Property Tax Act, MCL 211.1 et seq., does not authorize adding the 1% property tax administration fee described in MCL 211.44(3) to a special assessment that is subject to foreclosure as a tax, a city or village may impose and collect a similar administration fee pursuant to MCL 211.107(1).
The definition of “child abuse” in the Child Protection Law, MCL 722.622(f), includes choking, regardless of whether it results in death or only some other physical injury to a child, if the choking is nonaccidental and perpetrated by a person identified in the statute. Section 3(1)(a) of the Child Protection Law, MCL 722.623(1)(a), imposes a duty on a community mental health professional to report suspected child abuse that may have resulted in the death of a child, regardless of when the abuse and death occurred. A mental health professional would have a duty to report suspected child abuse about which the professional received knowledge during the provision of mental health services. Although section 748(1) of the Mental Health Code, MCL 330.1748(1), generally protects from disclosure records or information acquired by a mental health professional during the course of providing mental health services, that provision does not protect records or information revealing suspected child abuse or neglect that a mental health professional would have a duty to report under section 3(1)(a) of the CPL, MCL 722.623(1)(a).
No entity can lawfully claim exclusive control over use of the State’s highway route marker design because the design is in the public domain and is otherwise not subject to protection under trademark law.
The Michigan Fireworks Safety Act, 2011 PA 256, MCL 28.451 et seq., does not preempt a generally applicable local ordinance regulating all use of temporary vending facilities because the ordinance has only an incidental effect on the sale, display, and distribution of fireworks, and where both the Act and the ordinance can be enforced. Therefore, so long as the local ordinance does not prohibit fireworks vendors from undertaking their commercial operations in any way that other vendors may undertake their operations, the ordinance is not preempted by the Act. Sellers of consumer grade fireworks subject to the Michigan Fireworks Safety Act, 2011 PA 256, MCL 28.451, et seq., must comply with all provisions of the 2009 edition of National Fire Protection Association 101 and the 2006 edition of National Fire Protection Association 1124, including section 7.5.1.2, to the extent the provisions do not conflict with the Act. MCL 28.455(1)(a).
If 2011 PA 4 is disapproved by voters pursuant to the power of referendum under Const 1963, art 2, § 9, that law will no longer have any effect and the formerly repealed law, 1990 PA 72, is permanently revived upon certification of the November 2012 general election results. Once the effect of 2011 PA 4, the Local Government and School District Fiscal Accountability Act, MCL 141.1501 et seq., was suspended under Const 1963, art 2, § 9 and MCL 168.477(2), the prior repealed law, 1990 PA 72, is revived until certification of the November 2012 general election results. Depending on the vote of the electorate, the temporary revival of 1990 PA 72 will either cease with the approval of Public Act 4, or become permanent with the Act’s disapproval.
Const 1963, art 9, § 35, does not permit the expenditure of Michigan Natural Resource Trust Fund interest and earnings for payments in lieu of taxes on property under the jurisdiction of the Department of Natural Resources that was not purchased with Michigan Natural Resource Trust Fund funds, including property purchased with state or federal game and fish funds.
Part 632 of the Natural Resources and Environmental Protection Act, MCL 324.63201 et seq., preempts any local ordinance, regulation, or resolution that regulates, controls, or requires permits for nonferrous metallic mineral mining or reclamation activities regulated under Part 632, except ordinances, regulations, or resolutions that reasonably regulate the hours at which mining may take place and routes used by vehicles in connection with mining operations. A local unit of government may enact, maintain, and enforce ordinances, regulations, and resolutions of general applicability that incidentally affect mining operations if the ordinances, regulations, or resolutions do not duplicate, contradict, or conflict with Part 632. 2011 PA 113, by its own terms, does not affect the preemption of local government regulation of nonferrous metallic mineral mines under Part 632, nor does it expand the limited scope of local government regulation authorized by Part 632. MCL 125.3205(6).
Const 1963, art 9, § 35, authorizes the use of money in the Natural Resources Trust Fund for the development of public recreation facilities. Money from the Natural Resources Trust Fund therefore cannot be used for the maintenance of existing public recreation facilities, such as maintenance dredging of existing harbors. Const 1963, art 9, § 40, and implementing legislation, Parts 20 and 781 of the Natural Resources and Environmental Protection Act, MCL 324.2001 et seq. and MCL 324.78101 et seq., allow the use of funds in the Waterways Account of the Michigan Conservation and Recreation Legacy Fund for operation and maintenance of public recreation facilities, including the dredging of existing harbors. But such expenditures must be directed to public, rather than private, recreation facilities. And, consistent with MCL 324.78110(a)(ix), the primary purpose of the dredging must be to enhance access for recreational watercraft.
A properly registered patient or primary caregiver, who engages in the “medical use” of marihuana “in accordance with” the Michigan Medical Marihuana Act (MMMA), Initiated Law 1 of 2008, MCL 333.26421 et seq., may invoke the protections provided in sections 4(a) and (b) of the Act in a child-protective proceeding under the Michigan Juvenile Code, MCL 712A.1 et seq. MCL 333.26424(a) and (b). But the protections are subject to the exception in section 4(c) of the MMMA for behavior that creates an unreasonable danger to a minor that can be clearly articulated and substantiated. MCL 333.26424(c). Whether a person’s actions associated with the medical use of marihuana present an “unreasonable danger” to a child under section 4(c) of the Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26424(c), is a fact-specific inquiry dependent upon the circumstances of each case. Any assertion that a person’s behavior associated with the medical use of marihuana presents an unreasonable danger to a child must be clearly expressed and supported by evidence. To invoke the protections provided for in sections 4(a) and (b) of the Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26424(a) and (b), in a child-protective proceeding under the Michigan Juvenile Code, MCL 712A.1 et seq., a patient or primary caregiver must have been issued and possess a valid registry identification card. The affirmative defense provided for in section 8(a) of the MMMA only applies in a criminal prosecution, and thus is not available in a child-protective proceeding under the Juvenile Code. MCL 333.264248(a). The Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq., does not permit a court in a child-protective proceeding under the Michigan Juvenile Code, MCL 712A.1 et seq., to independently determine whether a person is a qualifying patient. But the court may review evidence to determine whether a person’s conduct related to marihuana is for the purpose of treating or alleviating the person’s debilitating medical condition or symptoms associated with the condition. MCL 333.26424(d)(2). If the person’s use or possession of marihuana is not for that purpose, and thus not “in accordance with” the MMMA, the person is not entitled to invoke the protections offered in section 4(a) in a child-protective proceeding. MCL 333.26424(a), MCL 333.26427(a).
The art collection of the Detroit Institute of Arts is held by the City of Detroit in charitable trust for the people of Michigan, and no piece in the collection may thus be sold, conveyed, or transferred to satisfy City debts or obligations.
Article 11, § 8 of the 1963 Constitution applies to a person who, within the immediately preceding 20 years, was convicted of a felony involving dishonesty, deceit, fraud, or breach of the public trust and the conviction was related to the person’s official capacity while holding an elective office or position of employment in a federally recognized Indian Tribe. Under article 11, § 8, such a person is ineligible for election or appointment to any state or local elective office of this State and ineligible to hold a position in public employment in this State that is policy-making or has discretionary authority over public assets.
The Child Care Organizations Act, 1973 PA 116, MCL 722.111 et seq., as implemented by the Department of Human Services in Mich Admin Code, R 400.5113b, permits adult caregivers to administer insulin and glucagon to a child in attendance at a child-care organization with the prior written permission of a parent, pursuant to the instructions of the child’s licensed practitioner, and in accordance with the remainder of the rule’s provisions.
Under section 269, MCL 168.269, of the Michigan Election Law, MCL 168.1 et seq., an individual appointed to fill a vacancy on an elected board of county road commissioners holds office for the remainder of the unexpired term, unless the vacancy occurred more than 182 days before the next November general election, if that election is not the November general election at which a successor in office would be elected if no vacancy occurred. In that case, the appointee holds office only until the appointee or another candidate is elected and qualified to serve for the remainder of the unexpired term at the next November general election.
By its terms the Land Division Act, MCL 560.101 et seq., does not preempt the broad authority granted townships under the Michigan Zoning Enabling Act, (MZEA) MCL 125.3101 et seq., and MCL 41.181 to adopt ordinances that regulate lands also subject to the Land Division Act. A township may thus adopt ordinances regulating parent parcels or parent tracts remaining after a land division, or parcels affected by adjacent land transfers. The Land Division Act, MCL 560.101 et seq., authorizes a township to adopt depth to width ratios smaller than those imposed by the Act, with the exception that the application of depth to width ratios to the remainder of a parent parcel or parent tract is prohibited by the Act. MCL 560.109(1)(b). Further, a township may adopt depth to width ratios applicable to lands affected by adjacent land transfers under generally applicable township land use ordinances adopted pursuant to its statutory authority under the MZEA and MCL 41.181. A local ordinance that does not substantively change the meaning of “exempt split” as defined in section 102(e), MCL 560.102(e), and does not otherwise conflict with the Land Division Act, is not preempted by the Act.
