affirmative defense in Michigan

2025“Under the common law, the affirmative defense of self-defense justified the killing of another person if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.” People v Guajardo, 300 Mich App 26, 35 ; 832 NW2d 409 (2013) 7 It appears that defendant’s appellate argument is directed at the murder conviction, but she does not clearly specify whether she is attacking any other convictions on this ground.

2025“Under the common law, the affirmative defense of self-defense justified the killing of another person if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.” People v Guajardo, 300 Mich App 26, 35 ; 832 NW2d 409 (2013) 7 It appears that defendant’s appellate argument is directed at the murder conviction, but she does not clearly specify whether she is attacking any other convictions on this ground.

2026People v Dupree, 486 Mich 693, 709-710 ; 788 NW2d 399 (2010).1 Common-law self-defense is codified in MCL 780.972, which states, in relevant part: 1 Self-defense is an affirmative defense that “justifies otherwise punishable criminal conduct, usually the killing of another person, ‘if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.’ ” Id. at 707 , quoting People v Riddle, 467 Mich 116, 127 ; 649 NW2d 30 (2002). -3- (1) An individual w

2026People v Dupree, 486 Mich 693, 709-710 ; 788 NW2d 399 (2010).1 Common-law self-defense is codified in MCL 780.972, which states, in relevant part: 1 Self-defense is an affirmative defense that “justifies otherwise punishable criminal conduct, usually the killing of another person, ‘if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.’ ” Id. at 707 , quoting People v Riddle, 467 Mich 116, 127 ; 649 NW2d 30 (2002). -3- (1) An individual w

2026An affirmative defense is any defense “that does not controvert the plaintiff’s establishing a prima facie case, but that otherwise denies relief to the plaintiff.” Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 312 ; 503 NW2d 758 (1993). “[I]t is a matter that . . . admits the establishment of the plaintiff’s prima facie case, but that denies that the plaintiff is entitled to recover on the claim for some reason not disclosed in the plaintiff’s pleadings.” Id.

2026An affirmative defense is any defense “that does not controvert the plaintiff’s establishing a prima facie case, but that otherwise denies relief to the plaintiff.” Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 312 ; 503 NW2d 758 (1993). “[I]t is a matter that . . . admits the establishment of the plaintiff’s prima facie case, but that denies that the plaintiff is entitled to recover on the claim for some reason not disclosed in the plaintiff’s pleadings.” Id.

2020“It is well established that governmental immunity is not an affirmative defense, but is instead a characteristic of government.” Fairley v Dep’t of Corrections, 497 Mich 290, 298 ; 871 NW2d 129 (2015), citing Mack v Detroit, 467 Mich 186, 198 ; 649 NW2d 47 (2002).

2020“It is well established that governmental immunity is not an affirmative defense, but is instead a characteristic of government.” Fairley v Dep’t of Corrections, 497 Mich 290, 298 ; 871 NW2d 129 (2015), citing Mack v Detroit, 467 Mich 186, 198 ; 649 NW2d 47 (2002).

2026Regarding intentional torts, our Supreme Court’s decision in Ross “clearly provides governmental employees qualified immunity from intentional-tort liability at common law.” Id. at 473 . “[G]overnmental immunity for individuals evolved into an affirmative defense under the common law . . . .” Id. at 479 .

2026Regarding intentional torts, our Supreme Court’s decision in Ross “clearly provides governmental employees qualified immunity from intentional-tort liability at common law.” Id. at 473 . “[G]overnmental immunity for individuals evolved into an affirmative defense under the common law . . . .” Id. at 479 .

2021SECTION 8 AFFIRMATIVE DEFENSE “Section 8(a) of the MMMA provides any patient or primary caregiver—regardless of registration with the state—with the ability to assert an affirmative defense to a marijuana-related offense.” People v Hartwick, 498 Mich 192, 226 ; 870 NW2d 37 (2015).

2021SECTION 8 AFFIRMATIVE DEFENSE “Section 8(a) of the MMMA provides any patient or primary caregiver—regardless of registration with the state—with the ability to assert an affirmative defense to a marijuana-related offense.” People v Hartwick, 498 Mich 192, 226 ; 870 NW2d 37 (2015).

2025“A defense not asserted in the responsive pleading or by motion as provided by these rules is waived, except for the defenses of lack of jurisdiction over the subject matter of the action, and failure to state a claim on which relief can be granted.” MCR 2.111(F)(2); see also Citizens Ins Co of America v Juno Lighting, Inc, 247 Mich App 236, 241 ; 635 NW2d 379 (2001) (“An affirmative defense must be stated in a party’s responsive pleading or in a motion for summary disposition made before the filing of a responsive pleading, or the defense is waived.”).

2025“A defense not asserted in the responsive pleading or by motion as provided by these rules is waived, except for the defenses of lack of jurisdiction over the subject matter of the action, and failure to state a claim on which relief can be granted.” MCR 2.111(F)(2); see also Citizens Ins Co of America v Juno Lighting, Inc, 247 Mich App 236, 241 ; 635 NW2d 379 (2001) (“An affirmative defense must be stated in a party’s responsive pleading or in a motion for summary disposition made before the filing of a responsive pleading, or the defense is waived.”).

2025Dismissal based upon an affirmative defense should only be granted when “the defense is complete and there are no conflicting facts regarding the defense.” Id.

2012Individuals may either register and obtain a registry identification card under § 4 or remain unregistered and, if facing criminal prosecution, be forced to assert the affirmative defense in § 8.” People v Redden, 290 Mich App 65, 81 ; 799 NW2d 184 (2010).

2025See People v Mette, 243 Mich App 318, 330 , 621 NW2d 713 (2000) (“The prosecution is not shouldered with the burden of proving the failure of an affirmative defense.”).

2025See People v Mette, 243 Mich App 318, 330 , 621 NW2d 713 (2000) (“The prosecution is not shouldered with the burden of proving the failure of an affirmative defense.”).

2026Further, in a case involving the defendant’s burden to prove the affirmative defense that he had a valid prescription for purposes of MCL 333.7403(1), the defendant similarly argued that “the police officers’ testimony recounting his assertion that he had a prescription satisfied his burden of production.” Pegenau, 447 Mich at 294 .

2017Justice MALLETT explained that the "presence of a prescription is analogous to an affirmative defense," id. at 289 , so the statutory "language concerning a prescription or other authorization refers to an exemption rather than an element of the crime," id. at 292 , 523 N.W.2d 325 . 11 In Hartuniewicz , 294 Mich.App. at 245 -246 , 816 N.W.2d 442 , this Court further explained: Before Pegenau , this Court repeatedly considered the burden of proof in relation to exceptions to the CSA.

2019The Eplee Court likewise made no comment regarding the application of MCR 2.116(C)(8) standards to an assertion of § 4 immunity. -5- medical conditions or symptoms, to the extent that the individuals’ marijuana use “is carried out in accordance with the provisions of the MMMA.” [Kolanek, 491 Mich at 394 , citing MCL 333.26427(a) (alterations and footnote omitted).] As a whole, “the MMMA defines the parameters of legal medical-marijuana use, promulgates a scheme for regulating registered patient use and administering the act, and provides for an affirmative defense, as well as penalties for vio

2019This does not end our inquiry, however, because defendant has additionally argued that the trial court erred in rejecting his § 8 affirmative defense under the MMMA. “[T]he language of § 8 permits those individuals who are not registered cardholding patients to assert the § 8 affirmative defense.” Kolanek, 491 Mich at 398 . § 8 provides an affirmative defense to “patients” or “a person” generally.

2026A defendant is entitled to a jury instruction on an affirmative defense upon a showing of “some evidence from which the jury can conclude that the essential elements of the defense are present.” People v Lemons, 454 Mich 234, 246 ; 562 NW2d 447 (1997) (cleaned up).

2026A defendant is entitled to a jury instruction on an affirmative defense upon a showing of “some evidence from which the jury can conclude that the essential elements of the defense are present.” People v Lemons, 454 Mich 234, 246 ; 562 NW2d 447 (1997) (cleaned up).

2023Shaw Investment Co v Rollert, 159 Mich App 575, 580 ; 407 NW2d 40 (1987); see also Campbell v St John Hosp, 434 Mich 608 , 616 & n 5; 455 NW2d 695 (1990) (citing Shaw as an example of caselaw recognizing an affirmative defense not expressly listed in the court rules). 16 The harm the Legislature is seeking to remedy through usury laws is not excessive interest in the abstract, but rather the imposition of such rates by lenders to the detriment of borrowers.

2023Shaw Investment Co v Rollert, 159 Mich App 575, 580 ; 407 NW2d 40 (1987); see also Campbell v St John Hosp, 434 Mich 608 , 616 & n 5; 455 NW2d 695 (1990) (citing Shaw as an example of caselaw recognizing an affirmative defense not expressly listed in the court rules). 16 The harm the Legislature is seeking to remedy through usury laws is not excessive interest in the abstract, but rather the imposition of such rates by lenders to the detriment of borrowers.

2026People v Dupree, 486 Mich 693, 709-710 ; 788 NW2d 399 (2010).1 Common-law self-defense is codified in MCL 780.972, which states, in relevant part: 1 Self-defense is an affirmative defense that “justifies otherwise punishable criminal conduct, usually the killing of another person, ‘if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.’ ” Id. at 707 , quoting People v Riddle, 467 Mich 116, 127 ; 649 NW2d 30 (2002). -3- (1) An individual w

2026People v Dupree, 486 Mich 693, 709-710 ; 788 NW2d 399 (2010).1 Common-law self-defense is codified in MCL 780.972, which states, in relevant part: 1 Self-defense is an affirmative defense that “justifies otherwise punishable criminal conduct, usually the killing of another person, ‘if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.’ ” Id. at 707 , quoting People v Riddle, 467 Mich 116, 127 ; 649 NW2d 30 (2002). -3- (1) An individual w

2026See Dell v Citizens Ins Co of America, 312 Mich App 734, 752 ; 880 NW2d 280 (2015) (noting that a statute-of-limitations defense is an affirmative defense that “must be stated in a party’s responsive pleading, either as originally filed or as amended in accordance with MCR 2.118”), quoting MCR 2.111(F)(3).

2026See Dell v Citizens Ins Co of America, 312 Mich App 734, 752 ; 880 NW2d 280 (2015) (noting that a statute-of-limitations defense is an affirmative defense that “must be stated in a party’s responsive pleading, either as originally filed or as amended in accordance with MCR 2.118”), quoting MCR 2.111(F)(3).

2024See Palenkas v Beaumont Hosp, 432 Mich 527, 548 ; 443 NW2d 354 (1989) (opinion by ARCHER, J.) (“The party asserting an affirmative defense had the burden of introducing evidence to support the affirmative defense.”); see also id. at 530 (concurring in Sections I and II of Justice ARCHER’S opinion); Lewis v Poel, 376 Mich 167, 169 ; 136 NW2d 7 (1965) (stating that laches is an affirmative defense).

2024See Palenkas v Beaumont Hosp, 432 Mich 527, 548 ; 443 NW2d 354 (1989) (opinion by ARCHER, J.) (“The party asserting an affirmative defense had the burden of introducing evidence to support the affirmative defense.”); see also id. at 530 (concurring in Sections I and II of Justice ARCHER’S opinion); Lewis v Poel, 376 Mich 167, 169 ; 136 NW2d 7 (1965) (stating that laches is an affirmative defense).

2025Under MCL 500.3135(2)(b), “Damages must be assessed on the basis of comparative fault, except that damages must not be assessed in favor of a party who is more than 50% at fault.” “Comparative negligence is an affirmative defense.” Riddle v McLouth Steel Prod Corp, 440 Mich 85, 98 ; 485 NW2d 676 (1992).

2025Under MCL 500.3135(2)(b), “Damages must be assessed on the basis of comparative fault, except that damages must not be assessed in favor of a party who is more than 50% at fault.” “Comparative negligence is an affirmative defense.” Riddle v McLouth Steel Prod Corp, 440 Mich 85, 98 ; 485 NW2d 676 (1992).

2024DEFENDANT FORFEITED HIS RIGHT TO AN INSANITY DEFENSE Legal insanity is an affirmative defense that requires proof that, because of “mental illness or being mentally retarded as defined in the mental health code, the defendant lacked ‘substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or conform his or her conduct to the requirements of the law.’ ” People v Carpenter, 464 Mich 223, 230-231 ; 627 NW2d 276 (2001), quoting MCL 768.21a(1).

2024DEFENDANT FORFEITED HIS RIGHT TO AN INSANITY DEFENSE Legal insanity is an affirmative defense that requires proof that, because of “mental illness or being mentally retarded as defined in the mental health code, the defendant lacked ‘substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or conform his or her conduct to the requirements of the law.’ ” People v Carpenter, 464 Mich 223, 230-231 ; 627 NW2d 276 (2001), quoting MCL 768.21a(1).

2016MCR 2.111(F)(3)(a); see also Tyra v Organ Procurement Agency of Mich, 302 Mich App 208, 214 ; 850 NW2d 667 (2013), rev’d on other grounds 498 Mich 68 (2015) (“[A] statement of an affirmative defense must contain facts setting forth why and how the party asserting it believes the affirmative defense is applicable.”).

2016MCR 2.111(F)(3)(a); see also Tyra v Organ Procurement Agency of Mich, 302 Mich App 208, 214 ; 850 NW2d 667 (2013), rev’d on other grounds 498 Mich 68 (2015) (“[A] statement of an affirmative defense must contain facts setting forth why and how the party asserting it believes the affirmative defense is applicable.”).

2025In Ray v Mason Co Drain Comm’r, 393 Mich 294, 312-313 ; 224 NW2d 883 (1975), the Michigan Supreme Court stated: If the defendant rather than, or in addition to attempting, to rebut plaintiff’s case seeks to establish an affirmative defense, then the judge must set out those facts which led him to conclude 1) that feasible and prudent alternatives do or do not exist and what the claimed alternatives were and 2) that the defendant’s conduct is or is not consistent with the promotion of public health, safety and welfare. [Quotation marks omitted; emphasis added.] -25- In this case, the PSC explai

2025In Ray v Mason Co Drain Comm’r, 393 Mich 294, 312-313 ; 224 NW2d 883 (1975), the Michigan Supreme Court stated: If the defendant rather than, or in addition to attempting, to rebut plaintiff’s case seeks to establish an affirmative defense, then the judge must set out those facts which led him to conclude 1) that feasible and prudent alternatives do or do not exist and what the claimed alternatives were and 2) that the defendant’s conduct is or is not consistent with the promotion of public health, safety and welfare. [Quotation marks omitted; emphasis added.] -25- In this case, the PSC explai