Circuit Court LC No. 17-306159-FH
Before: Borrello, P.J., and M. J. Kelly and Boonstra, JJ.
interlocutory appeal, the prosecution appeals by delayed
leave granted the trial court's order denying the
prosecution's motion in limine to preclude defendant from
presenting a delegation defense to the jury. We reverse and
remand for further proceedings.
PERTINENT FACTS AND PROCEDURAL HISTORY
this appeal presents a question of law that hinges on
statutory interpretation, we will only briefly discuss the
factual background of this case. It is undisputed that
defendant is a formerly licensed veterinarian whose license
to practice veterinary medicine in Michigan was revoked in
November 2015. In 2016, the Michigan Bureau of
Professional Licensing received complaints that defendant had
performed "spay and neuter" surgeries without a
valid license. An investigation revealed that defendant owned
a business called "Spay and Neuter Express." Dr.
Duane Fitzgerald, a licensed veterinarian, worked for Spay
Neuter Express as an independent contractor and was
designated as its attending veterinarian. Dr. Fitzgerald
described the business as "an ambulatory service that
serves remote areas or rural areas for spaying and neutering
people's pets . . . set up in a mobile home that has been
converted to a surgical facility."
was charged with three counts of the unauthorized practice of
a health profession, MCL 333.16294, related to performing
veterinary surgery in December 2016 while his license to
practice veterinary medicine was revoked. During
defendant's preliminary examination, Dr. Fitzgerald
testified that on December 16, 2016, defendant performed many
of the surgeries that had been scheduled for that day, and
that he and defendant performed their respective surgeries in
the same general area. Dr. Fitzgerald stated that he did not
oversee defendant, and agreed that he did nothing to ensure
that defendant was performing the procedures properly and did
not check to see how many procedures defendant had completed.
He also believed the animals on which defendant operated were
defendant's patients, not his. Dr. Fitzgerald was aware
that defendant's veterinary license had been suspended or
revoked. He characterized defendant as a competent surgeon
who possessed the knowledge and skills to perform veterinary
defendant was bound over to the circuit court, he moved to
quash the information on the ground that Dr. Fitzgerald, a
licensed veterinarian, had properly delegated to defendant
the surgical tasks that he performed. In response, the
prosecution asserted that a delegation defense was
unavailable as a matter of law, and also moved to preclude
defendant from presenting such a defense to the jury. After
an evidentiary hearing, at which Dr. Fitzgerald testified
consistently with his preliminary examination testimony, the
trial court denied the prosecution's motion, stating that
there was not "anything within the statutes or rules
that say, 'You cannot perform a surgery'" and
that it was "a question for the
appeal followed. The trial court granted the
prosecution's motion for a stay of proceedings pending
the resolution of this appeal.
STANDARD OF REVIEW
review for an abuse of discretion a trial court's ruling
on a motion in limine. Bartlett v Sinai Hosp of
Detroit, 149 Mich.App. 412, 418; 385 N.W.2d 901 (1986).
However, we review de novo as a question of law matters of
statutory interpretation. People v Thomas, 263
Mich.App. 70, 73; 687 N.W.2d 598 (2004). Further, where
"delegation of authority . . . [is] a legal nullity, the
question of whether [the] defendant's actions constitute
illegal conduct is one of law to be decided by the trial
court." People v Ham-Ying, 142 Mich.App. 831,
836; 371 N.W.2d 874 (1985). A trial court abuses its
direction when it makes an error of law or operates within an
incorrect legal framework. People v Everett, 318
Mich.App. 511, 516; 899 N.W.2d 94 (2017).
prosecution argues that the trial court erred by failing to
hold as a matter of law that defendant may not present the
defense of delegation in this case. Based on the specific
acts alleged in this case, the undisputed expert testimony,
and the language of the relevant statutes, we agree.
primary goal of statutory interpretation is to ascertain and
give effect to the intent of the Legislature."
Thomas, 263 Mich.App. at 73 (quotation marks and
citations omitted). In order to discern legislative intent,
this Court first looks to the language of the statute.
People v Borchard-Ruhland, 460 Mich. 278, 284; 597
N.W.2d 1 (1999). "When construing a statute, the court
must presume that every word has some meaning and should
avoid any construction that would render any part of the
statute surplusage or nugatory," and "[i]f
possible, effect should be given to each provision."
Id. at 285. "This Court must look to the
purpose of the statute . . . [and] the harm it is designed to