default standard in Michigan

2024“We have recognized that heightened scrutiny only applies when the statutory classification is based upon suspect factors, such as race, national origin, or ethnicity, or when the legislation that creates the classification impinges upon the exercise of a fundamental right.” Id., citing Phillips v Mirac, Inc, 470 Mich 415, 432 ; 685 NW2d 174 (2004).

2024“We have recognized that heightened scrutiny only applies when the statutory classification is based upon suspect factors, such as race, national origin, or ethnicity, or when the legislation that creates the classification impinges upon the exercise of a fundamental right.” Id., citing Phillips v Mirac, Inc, 470 Mich 415, 432 ; 685 NW2d 174 (2004).

2022The descriptions of the “fault of the owner” in Black, id., and the “acts of the shipper” in Savage, 209 F2d at 445, indicate a shared understanding that the default rule contained narrow exceptions reflecting who had control of the goods and was in a better position to control for risk.

2022The descriptions of the “fault of the owner” in Black, id., and the “acts of the shipper” in Savage, 209 F2d at 445, indicate a shared understanding that the default rule contained narrow exceptions reflecting who had control of the goods and was in a better position to control for risk.

2021We agree because this Court has held that “[w]hen a statute fails to state the standard that probate courts are to use to establish a particular fact, the default standard in civil cases—preponderance of the evidence—applies.” In re Guardianship of Redd, 321 Mich App 398, 409 ; 909 NW2d 289 (2017) (citation omitted); see also Mayor of Cadillac v Blackburn, 306 Mich App 512, 522 ; 857 NW2d 529 (2014) (“[B]ecause the statute does not state the quantum of proof necessary to obtain confirmation of removal, the default standard in civil cases, the preponderance of the evidence, applies.”). 2 To the

2021We agree because this Court has held that “[w]hen a statute fails to state the standard that probate courts are to use to establish a particular fact, the default standard in civil cases—preponderance of the evidence—applies.” In re Guardianship of Redd, 321 Mich App 398, 409 ; 909 NW2d 289 (2017) (citation omitted); see also Mayor of Cadillac v Blackburn, 306 Mich App 512, 522 ; 857 NW2d 529 (2014) (“[B]ecause the statute does not state the quantum of proof necessary to obtain confirmation of removal, the default standard in civil cases, the preponderance of the evidence, applies.”). 2 To the

2016In that case, the Court noted that “[b]ecause Congress did not provide a heightened standard of proof in 25 USC 1912(d), as it did in 25 USC 1912(f), the default standard of proof for termination of parental rights cases, clear and convincing evidence, applies to the determination whether the DHS provided ‘active efforts . . . to prevent the breakup of the Indian family’ under 25 USC 1912(d).” In re JL, 483 Mich at 318-319 , citing In re Roe, 281 Mich App at 100-101 .2 As the above authority illustrates, in the face of Congress’ failure to articulate a standard of proof in 25 USC § 1912 (d), r

2016Our Supreme Court ultimately adopted Roe’s holding regarding the standard of proof in In re JL, 483 Mich 300 ; 770 NW2d 853 (2009). 2 In that case, the Court noted that “[b]ecause Congress did not provide a heightened standard of proof in 25 USC 1912(d), as it did in 25 USC 1912(f), the default standard of proof for termination of parental rights cases, clear and convincing evidence, applies to the determination whether the DHS provided ‘active efforts... to prevent the breakup of the Indian family’ under 25 USC 1912(d).” In re JL, 483 Mich at 318-319 , citing In re Roe, 281 Mich App at 100-10

2014This default rule is driven by “the principle of finality which is essential to the operation of our criminal justice system.” Id. at 309 .

2014This default rule is driven by “the principle of finality which is essential to the operation of our criminal justice system.” Id. at 309 .

2024Under the default standard, only if the trial court selects an outcome outside of the range of “ ‘principled outcomes’ ” may an appellate court not “ ‘defer to the trial court’s judgment.’ ” Maldonado, 476 Mich at 388 , quoting Babcock, 469 Mich at 269 .

2007Our Supreme Court recently adopted a new definition of an abuse of discretion: “[A]n abuse of discretion standard acknowledges that there will be circumstances in which there will be no single correct outcome; rather, there will be more than one reasonable and principled outcome.” .. . “[W]hen the trial court selects one of these principled outcomes, the trial court has not abused its discretion and, thus, it is proper for the reviewing court to defer to the trial court’s judgment.” [Maldonado v Ford Motor Co, 476 Mich 372, 388 ; 719 NW2d 809 (2006) (citations omitted; emphasis added).] This i

2024Under the default standard, only if the trial court selects an outcome outside of the range of “ ‘principled outcomes’ ” may an appellate court not “ ‘defer to the trial court’s judgment.’ ” Maldonado, 476 Mich at 388 , quoting Babcock, 469 Mich at 269 .

2007An abuse of discretion occurs... when the trial court chooses an outcome falling outside this principled range of outcomes.” [Bab-cock, 469 Mich at 269 .] Notably, by characterizing the “principled outcomes” standard as the default standard, Maldonado recognized that another formulation could exist.

2016Our Supreme Court ultimately adopted Roe’s holding regarding the standard of proof in In re JL, 483 Mich 300 ; 770 NW2d 853 (2009). 2 In that case, the Court noted that “[b]ecause Congress did not provide a heightened standard of proof in 25 USC 1912(d), as it did in 25 USC 1912(f), the default standard of proof for termination of parental rights cases, clear and convincing evidence, applies to the determination whether the DHS provided ‘active efforts... to prevent the breakup of the Indian family’ under 25 USC 1912(d).” In re JL, 483 Mich at 318-319 , citing In re Roe, 281 Mich App at 100-10

2016Our Supreme Court ultimately adopted Roe’s holding regarding the standard of proof in In re JL, 483 Mich 300 ; 770 NW2d 853 (2009). 2 In that case, the Court noted that “[b]ecause Congress did not provide a heightened standard of proof in 25 USC 1912(d), as it did in 25 USC 1912(f), the default standard of proof for termination of parental rights cases, clear and convincing evidence, applies to the determination whether the DHS provided ‘active efforts... to prevent the breakup of the Indian family’ under 25 USC 1912(d).” In re JL, 483 Mich at 318-319 , citing In re Roe, 281 Mich App at 100-10

2025Preponderance of the evidence means “such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth.” People v Cross, 281 Mich App 737, 740 ; 760 NW2d 314 (2008).

2025Preponderance of the evidence means “such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth.” People v Cross, 281 Mich App 737, 740 ; 760 NW2d 314 (2008).

2025While the default rule is to apply newly adopted court rules to pending actions, a trial court may apply the former rule if applying the current rule would be infeasible or “would work injustice.” MCR 1.102; Reitmeyer v Schultz Equip & Parts Co, Inc, 237 Mich App 3 Defendant’s application for leave to appeal only addressed the trial court’s March 11, 2024 order, not the March 18, 2024 order. -4- 332, 337; 602 NW2d 596 (1999).

2025It specifically cited MCR 2.313 which permits default as a discovery sanction, and articulated specific findings corresponding to all of the factors identified in Frankenmuth Mut Ins Co, 193 Mich App at 396-397 .

2024The trial court read too narrowly this Court’s statement that an award of attorney fees under FOIA includes “ ‘all fees, costs, and disbursements related to achieving production of the public records.’ ” Tooles II, unpub op at 9, quoting Meredith Corp v Flint, 256 Mich App 703, 715 ; 671 NW2d 101 (2003) (emphasis added).

2024The trial court read too narrowly this Court’s statement that an award of attorney fees under FOIA includes “ ‘all fees, costs, and disbursements related to achieving production of the public records.’ ” Tooles II, unpub op at 9, quoting Meredith Corp v Flint, 256 Mich App 703, 715 ; 671 NW2d 101 (2003) (emphasis added).

2021In re Baldwin’s Estate, 311 Mich at 310-312 . -6- Accordingly, because the EPIC, and specifically MCL 700.1308, does not specify the applicable standard of proof for determining breach of fiduciary duty after which the probate court may impose a surcharge, we are bound by precedent that establishes that the preponderance of the evidence standard applies and we therefore hold, the standard of proof for determining breach of duty and the appropriateness of a surcharge is a preponderance of the evidence. 3.

2020The Supreme Court agreed with the panel’s conclusion, specifically stating that “if the exception [under MCL 769.1k(1)(b)(iii)] permits costs without separate calculation, then logically the default rule must require that costs be separately calculated for the particular case.” Id. at 167 .

2016In re JL, 483 Mich at 319 n 13, citing In re Walter W, 274 Neb at 864-865, In re MS, 2001 ND 86 ; 624 NW2d 678 (2001), and In re Michael G, 63 Cal App 4th 700, 709-712; 74 Cal Rptr 2d 642 (1998).

2016In re JL, 483 Mich at 319 n 13, citing In re Walter W, 274 Neb at 864-865, In re MS, 2001 ND 86 ; 624 NW2d 678 (2001), and In re Michael G, 63 Cal App 4th 700, 709-712; 74 Cal Rptr 2d 642 (1998).

2014Finally, Moore also relied on MCL 765.27 to conclude that “[t]he Legislature has plainly declared that the trial court’s failure to provide proper notice of a principal’s default does not bar or preclude the court’s authority to enter judgment on a forfeited recognizance.” Moore, 276 Mich App at 495 .

2014Finally, Moore also relied on MCL 765.27 to conclude that “[t]he Legislature has plainly declared that the trial court’s failure to provide proper notice of a principal’s default does not bar or preclude the court’s authority to enter judgment on a forfeited recognizance.” Moore, 276 Mich App at 495 .

2014Supporting this same principle are concerns arising from the burdens placed on the administration of justice when new rules are applied retroactively, in that “[t]he ‘costs imposed upon the State[s] by retroactive application of new rules of constitutional law on [collateral review] generally far outweigh the benefits of this application.’ ” 9 Id. at 310 , quoting Solem v Stumes, 465 US 638, 654 ; 104 S Ct 1338 ; 79 L Ed 2d 579 (1984) (second alteration in original).

2014Supporting this same principle are concerns arising from the burdens placed on the administration of justice when new rules are applied retroactively, in that “[t]he ‘costs imposed upon the State[s] by retroactive application of new rules of constitutional law on [collateral review] generally far outweigh the benefits of this application.’ ” 9 Id. at 310 , quoting Solem v Stumes, 465 US 638, 654 ; 104 S Ct 1338 ; 79 L Ed 2d 579 (1984) (second alteration in original).

2010Rouch v. Enquirer & News I, 427 Mich. 157, 195 , 398 N.W.2d 245 (1986).

2010Rouch v. Enquirer & News I, 427 Mich. 157, 195 , 398 N.W.2d 245 (1986).

2010After the United States Supreme Court in Gertz v. Welch, 418 U.S. 323, 347 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974), invited states to "define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual," this Court adopted negligence as the default standard of liability in Michigan.

2010After the United States Supreme Court in Gertz v. Welch, 418 U.S. 323, 347 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974), invited states to "define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual," this Court adopted negligence as the default standard of liability in Michigan.