                              STATE OF MICHIGAN

                               COURT OF APPEALS



CITY OF EAST GRAND RAPIDS,                                           UNPUBLISHED
                                                                     April 11, 2017
                  Plaintiff-Appellee,

v                                                                    No. 329259
                                                                     Kent Circuit Court
TREVOR ALLEN VANDERHART,                                             LC No. 14-010058-AR

                  Defendant-Appellant.


Before: MURPHY, P.J., and SAWYER and SWARTZLE, JJ.

SAWYER, J. (dissenting).

          I respectfully dissent.

          I cannot agree with the analysis of either of my colleagues that reaches the conclusion to
affirm.

        Turning first to the lead opinion, it offers the view that the traffic stop was not lawful
under MCL 257.686, but was lawful under MCL 257.683. The concurrence disagrees with the
conclusion that the stop was not justified under MCL 257.686, but “cannot conclude”1 that it was
justified under MCL 257.683 while stopping short of explicitly saying that it cannot be justified
under that section. I, on the other hand, agree with the lead opinion that § 686 does not apply,
even in light of the “mistaken understanding” standard in Heien v North Carolina, 574 US ___;
135 S Ct 530; 190 L Ed 2d 475 (2014). But I disagree that it is justified under § 683.

        Had the concurrence affirmatively stated that it disagreed with the lead opinion’s
conclusion under § 683, I could end my dissent here, merely agreeing with the concurrence on
that point while agreeing with the lead opinion on the § 686 analysis. But since it did not take a
conclusive position on § 683, I will turn my attention to why I do not agree with the lead opinion
on this point.2



1
    Opinion of MURPHY, J., ante, slip op at 1.
2
  I do not wish to belabor the analysis of § 686 beyond agreeing with the lead opinion, including
the lead opinion’s conclusion that our decision in People v Williams, 236 Mich App 610; 601


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        First, neither Judge Servaas in the district court nor Judge Johnston in the circuit court
based their decisions on § 683. I recognize that an appellate court can, and occasionally does,
affirm a lower court on a different basis on a theory of “right result, wrong reason.” See, e.g.,
People v Miller, 498 Mich 13, 27; 869 NW2d 204 (2015). But I prefer to use that doctrine
sparingly, allowing the trial court to resolve a question in the first instance. This is, to my mind,
particularly important where, as here, the resolution involves a factual interpretation. That is,
even if the lead opinion is correct on the general application of § 683 to this type of case,
whether it applies in this particular case would require a factual determination whether the
degree of difference in the illumination of the two taillights would render the vehicle unsafe.
Therefore, even if I were to agree with the lead opinion’s interpretation of § 683, I would at most
believe that that would justify a reversal of the circuit court and a remand to the district court for
consideration of that issue.

         Second, the lead opinion is inconsistent in its analysis of § 683 compared to its analysis
of § 686. The lead opinion rejects applying § 686 because the Legislature set the standard for
taillights at being red and visible at 500 feet. Yet, in its analysis of § 683, the lead opinion
conveniently ignores this standard. That is, while acknowledging that the taillight at issue was in
compliance with § 686, the lead opinion nevertheless concludes that it fails to comply with § 683
despite the fact that § 686 imposes no additional specific requirements for taillights beyond that
required under § 686.

        Worse yet, the lead opinion sets its own standard of “unsafe” as being a difference in
illumination. If the Legislature had wanted to prohibit taillights from having a different
illumination level from each other, the Legislature could easily have said so. The Legislature’s
not having done so, the lead opinion seeks to make up for the Legislature’s failing and amends
the statute itself. I take heed in the admonitions of the late Justice Scalia and Bryan Garner in
Reading Law: The Interpretation of Legal Texts, Thomson/West (2012), p 350:

              The view of the judge as a telepathic time-traveler and collaborative
       lawmaker ignores the reality that it is, in Judge Easterbrook’s words, “impossible
       for a court—even one that knows each legislator’s complete table of
       preferences—to say what the whole body would have done with a proposal it did
       not consider in fact.” Further: “[J]udicial predictions of how the legislature
       would have decided issues it did not in fact decide are bound to be little more than
       wild guesses.” [Quoting Frank H. Easterbrook, Statutes’ Domains, 50 U Chi L
       Rev 533, 547-548.]


NW2d 138 (1999), does not apply here. But, having been on the panel that decided Williams, I
want to express my concern that Williams should not be read too broadly. To me, there is a
significant difference between a situation where there is but a single lamp on each side and one
of those lamps is not functioning and the situation where there are several small lamps on each
side and the lamp assembly is slightly dimmer because one or two small lamps are burned out.
Indeed, I think that Williams, and the Legislature for that matter, merely envisioned the
traditional “single bulb” lamp assembly and considered a simple set of conditions—lit or not lit.
Modern design changes have made the situation more complicated than we faced in Williams.


                                                 -2-
Rather than making a wild guess at how the Legislature might choose to address a taillight
design that allows for a differential in illumination, I am content to leave it to the Legislature to
make any adjustments to the statute that it might deem necessary.

        Third, the lead opinion speculates that “when one taillight is significantly brighter than
the other, a dangerous condition may arise because other people may think that the person with
the defective taillight was” braking all the time. Ante, slip op at 9. This analysis piles
supposition upon speculation and conveniently employs rather vague generalities. What is
“significantly brighter” versus “insignificantly brighter”? How do we know what other people
“may” think? And even if we can read the minds of those drivers, can we be so sure that a
dangerous condition “may arise”? While engaging in no greater speculation or supposition than
the lead opinion, I would suggest that such a condition would cause these “other people” to
exercise greater care, not lesser, if they believed that the car in front of them might be braking.

        Returning to the question of what is “significantly brighter,” the lead opinion offers no
standard by which a trial court or, for that matter, a traffic officer, can make such a judgment.
With many modern taillights no longer consisting of just a single lamp, but a collection of
several smaller lamps, at what point does, in the lead opinion’s rule, a car become unsafe under
§ 683? When one of the smaller bulbs is burned out? Or two? Is the “unsafe” nature of such a
vehicle dependent on a particular officer’s visual acuity and his or her ability to detect a burned
out bulb in the collection? Is a car “unsafe” when a single such bulb is burned out and the driver
has the misfortune of being followed by an eagle-eyed officer while another vehicle might be
“safe” with two or three small bulbs burned out but the driver has the good fortune of being seen
by an officer with more typical vision? Perhaps that second vehicle will suddenly become
“unsafe” as the average-eyed officer draws nearer and finally is able to see that one of the small
bulbs is burned out. Reliance on § 683 and deeming a car to be “unsafe” must, at a minimum, be
done with extreme caution. This case could represent the first leg down the road of declaring
any car that is not in “factory perfect” condition to be “unsafe” and I doubt that that was the
Legislature’s intent.3 Indeed, in cases such as this one, it might even create the risk that designs
that might actually enhance safety become a technical lack of safety—would not multiple bulbs
make it safer when one of the bulbs burns out and the rest remain lit?

        Rather, § 683 must be employed in those circumstances where a car is in an unsafe
condition in a manner beyond the contemplation of the Legislature in drafting the motor vehicle
code. For example, I doubt that the motor vehicle code specifically prohibits a driver from
securing the car’s bumper by means of duct tape. Yet, I would suggest that such an arrangement
presents an unsafe condition—the bumper might fall off in traffic and present a sudden hazard
for the other vehicles in the vicinity. But even this presents a factual situation to be resolved in
the trial court. Which brings me back to my original point: even if we accept the proposition
that a differential in illumination between the taillights renders a car unsafe, that too presents a




3
    Indeed, the lead opinion, in its analysis of § 686 acknowledges this point. Ante, slip op at 6.


                                                   -3-
factual determination for the trial court. It is not for this Court (or for the circuit court sitting on
appeal) to make. And, in this case, Judge Servaas made no such finding.4

       Thus, I end the analysis of § 683 where the lead opinion started with § 686—the
Legislature required a taillight that is red and visible at 500 feet and that was met here. So
Officer Lobbezoo had no basis for making the traffic stop in the first place.

         For these reasons, I would reverse the circuit court and reinstate the decision of the
district court.




                                                               /s/ David H. Sawyer




4
 To the extent that the lead opinion relies on Judge Jordon’s findings, I believe that reliance is
misplaced. Because Judge Servaas revisited this issue, it is Judge Servaas’ findings and
conclusions that are relevant to this appeal, not those of the predecessor judge.


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