Knight v. People (In re Knight)

• Citation: 333 Mich.App. 681,963 N.W.2d 676
• Decision Date: 17 September 2020
• Docket Number: No. 346554,346554
• Parties: IN RE Gregg Bryan KNIGHT. Gregg Bryan Knight, Petitioner-Appellee, v. People of the State of Michigan, Respondent-Appellant.
• Court: Court of Appeal of Michigan (US)

333 Mich.App. 681

963 N.W.2d 676

IN RE Gregg Bryan KNIGHT.Gregg Bryan Knight, Petitioner-Appellee,

v.People of the State of Michigan, Respondent-Appellant.

No. 346554

Court of Appeals of Michigan.

Submitted January 14, 2020, at Lansing.

Decided September 17, 2020, at 9:20 a.m.

Watkins Law Firm, PLLC (by Brian R. Watkins ) for petitioner.

Jerard M. Jarzynka, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for respondent.

Before: Boonstra, P.J., and Tukel and Letica, JJ.

Tukel, J. Respondent, the Jackson County Prosecuting Attorney, appeals as of right the November 20, 2018 order reinstating the firearm rights of petitioner Gregg B. Knight, which were lost as a result of petitioner's 2001 plea-based conviction of arson of woods and prairies, MCL 750.78, then a four-year felony.¹ Respondent argues that the trial court erred by restoring petitioner's firearm rights because petitioner violated his probation, failed to pay restitution while on parole, and failed to pay court-ordered restitution and attorney fees. Petitioner disagrees and additionally argues that this Court does not have jurisdiction over this case because respondent does not have standing and is not an aggrieved party. We hold that respondent does have standing; on the merits, we reverse and remand for the trial court to enter an order denying the petition because petitioner has not carried his burden.

I. UNDERLYING FACTS

In May 2001, petitioner pleaded guilty as noted. Petitioner was sentenced to probation and ordered to pay $8,025 in restitution and $375 in attorney fees. Petitioner twice violated the conditions of his probation, and as a result, the trial court, in May 2004, sentenced him to imprisonment for 17 to 48 months for violating the conditions of his probation. Petitioner later was paroled on the 17- to 48-month sentence, with a condition that he pay restitution. Petitioner failed to pay the entirety of his restitution, but he was nevertheless discharged from parole in October 2007. As of January 23, 2019, petitioner had paid only $138.51 in restitution and $60.81 in attorney fees.

In August 2018, petitioner filed a petition to restore his firearm rights. See MCL 28.424(1). Petitioner stated in the petition that he had completed probation and parole and that he had paid all fines arising from his arson conviction. Respondent answered the petition in October 2018, arguing that petitioner's firearm rights should not be restored because petitioner had not paid all of his fines, leading to his probation being violated and his imprisonment for those violations.

The trial court held a motion hearing in October 2018. In November 2018, the trial court entered an order restoring petitioner's firearm rights. This appeal followed.

II. RESPONDENT'S STANDING

On appeal, petitioner argues for the first time that respondent lacks standing in this case. We disagree.

A. ISSUE PRESERVATION AND STANDARD OF REVIEW

"To preserve for appellate review an issue regarding standing, the defendant must have raised the issue in his or her first responsive pleading or motion." In re Gerald L. Pollack Trust , 309 Mich. App. 125, 153, 867 N.W.2d 884 (2015). When, as here, a party raises the issue of standing for the first time on appeal, the issue is unpreserved. Id.²

When properly preserved, this Court reviews de novo the issue of whether a party has standing.

Id. at 154, 867 N.W.2d 884. "Likewise, the related issue of whether a plaintiff is the real party in interest is also a question of law that we review de novo." Pontiac Police & Fire Retiree Prefunded Group Health & Ins. Trust Bd. of Trustees v. Pontiac No. 2 , 309 Mich. App. 611, 621, 873 N.W.2d 783 (2015). Unpreserved issues, however, are reviewed for plain error. See Hogg v. Four Lakes Ass'n, Inc. , 307 Mich. App. 402, 406, 861 N.W.2d 341 (2014). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Kern v. Blethen-Coluni , 240 Mich. App. 333, 336, 612 N.W.2d 838 (2000) (quotation marks omitted), quoting People v. Carines , 460 Mich. 750, 763, 597 N.W.2d 130 (1999). "[A]n error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." Lawrence v. Mich. Unemployment Ins. Agency , 320 Mich. App. 422, 443, 906 N.W.2d 482 (2017) (alteration in original, citation and quotation marks omitted). The appellant bears the burden of persuasion with respect to prejudice. See Carines , 460 Mich. at 763, 597 N.W.2d 130 ("It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.") (citation and quotation marks omitted).

B. ANALYSIS

At the trial court level, "a litigant has standing whenever there is a legal cause of action."

Lansing Sch. Ed. Ass'n v. Lansing Bd. of Ed. , 487 Mich. 349, 372, 792 N.W.2d 686 (2010) ( LSEA ). But even if no legal cause of action is available to a litigant, "[the] litigant may have standing ... if the litigant has a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large or if the statutory scheme implies that the Legislature intended to confer standing on the litigant."

In general, standing requires a party to have a sufficient interest in the outcome of litigation to ensure vigorous advocacy and in an individual or representative capacity some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy. [ Pontiac Police & Fire , 309 Mich. App. at 621, 873 N.W.2d 783 (2015) (citation and quotation marks omitted).]

To have standing on appeal, however, a litigant must be an aggrieved party under MCR 7.203(A). MCNA Ins. Co. v. Dep't of Technology, Mgt. & Budget , 326 Mich. App. 740, 745, 929 N.W.2d 817 (2019) ; MCR 7.203(A). To be an aggrieved party, a litigant must have "suffered a concrete and particularized injury ... arising from either the actions of the trial court or the appellate court judgment...." MCNA , 326 Mich. App. at 745, 929 N.W.2d 817 (citation and quotation marks omitted; sentence structure altered). For a party to be aggrieved, the injury must be concrete "and not a mere possibility arising from some unknown and future contingency." Id. (citation and quotation marks omitted).

Petitioner argues that respondent does not have standing because he lacks an interest in whether petitioner's firearm rights are restored. Specifically, petitioner argues that MCL 28.424 does not identify respondent as an "interested party" and that this omission establishes that respondent is not an interested party. Petitioner is correct that county prosecutors are not even referred to in the firearm-rights-restoration statute, MCL 28.424. But standing does not require that a statute identify a litigant as an interested party.

LSEA , 487 Mich. at 372, 792 N.W.2d 686. Standing does require that a litigant have an interest in the outcome of the litigation, but that interest need not be enshrined in a statute. See id.

Petitioner additionally argues that respondent does not have standing because under a prior version of MCL 28.424, the county prosecutor, as a member of the concealed-weapon licensing board, had a role in determining whether to restore a petitioner's firearm rights.³ Petitioner argues that when the Legislature transferred this power to the circuit courts, effective December 1, 2015, its action established that prosecutors no longer had an interest in whether a petitioner's firearm rights were restored.⁴

Although the Legislature abolished concealed-weapon licensing boards and, instead, reposed the power to restore firearm rights solely in the circuit courts, this change alone does not establish that respondent lacks standing in this case. Notwithstanding the Legislature's amendments of MCL 28.424 and MCL 28.425a, respondent still has an interest in this case. Under MCL 49.153, "[t]he prosecuting attorneys shall, in their respective counties, appear for the state or county, and prosecute or defend in all the courts of the county, all prosecutions, suits, applications and motions whether civil or criminal, in which the state or county may be a party or interested." In construing a statute, "[i]t is a well-known principle that the Legislature is presumed to be aware of, and thus to have considered the effect on, all existing statutes when enacting new laws." Walen v. Dep't of Corrections , 443 Mich. 240, 248, 505 N.W.2d 519 (1993). Nothing in the firearm-rights-restoration statutes suggests that MCL 49.153 is not to be applied to such proceedings or, more generally, that prosecuting attorneys shall have no role to play in those proceedings notwithstanding the facial applicability of MCL 49.153.⁵

Moreover, to read the firearm-rights-restoration statutes in the manner in which petitioner suggests would work a very significant change in the procedure by which those cases are generally heard and decided. "Under our adversarial system, each party bears the responsibility for ensuring that its positions are vigorously and properly advocated," and " ‘parties frame the issues and arguments’ for the trial court."

Barnard Mfg. Co., Inc. v. Gates Performance Engineering, Inc. , 285 Mich. App. 362, 382–383, 775 N.W.2d 618 (2009) (citations omitted). The United States Supreme Court has very recently reaffirmed this point. In United States v. Sineneng-Smith , 590 U.S. ––––, ––––, 140 S.Ct. 1575, 206 L.Ed.2d 866 (2020), the Court unanimously stated, "In our adversarial system of adjudication, we follow the principle of party presentation," which means that " ‘in both civil and criminal cases, in the first instance and on appeal ..., we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.’ " Id. at ––––, 140 S....