One Court of Justice

In People v Lloyd, the Court of Appeals affirmed an award for three times the actual amount of restitution under the Crime Victim’s Civil Rights Act when the defendant caused the victim to lose an eye because the injury was a “serious impairment of body function” under the statute.

The Crime Victim’s Rights Act, MCL 780.766(5), provides that a person who is the victim of a crime that results in a “serious impairment of body function” may be awarded up to three times the restitution amount, at the trial court’s discretion.  In this case, the defendant struck the victim in the eye with a high-heeled shoe, causing the victim to lose her eye.  She was found guilty of misdemeanor assault, and the trial court tripled the restitution award under the statute.  The Court of Appeals affirmed, rejecting the defendant’s argument that the court should not have tripled the restitution award for the loss of an eye.  The Court of Appeals reasoned that the loss of an eye constitutes a “serious impairment of a body function,” and the plain language does not limit or specify what the trial court may consider in exercising its discretion.  Therefore, the Court of Appeals affirmed the trial court’s decision to triple the actual restitution award.

In Wayne County Employees Retirement System v. Charter County of Wayne, the Michigan Court of Appeals held that Wayne County’s ordinance, which re-directed funds meant to protect retirees from inflation to offset the County’s annual required contribution to the retirement system, violated  the Public Employee Retirement System Investment Act (“PERSIA”), MCL 38.1132.  Read more »

In In re Moss Minors, the Court of Appeals held that a court must determine whether termination of parental rights is in a child’s best interest by a preponderance of the evidence. Read more »

Michigan’s Public Act 53, enacted in 2012, prohibits public-school employers from providing payroll deductions to collect union membership dues from public-school employees.  Plaintiffs, a number of unions and union members, challenged the Act facially, alleging that it violates their federal constitutional rights.  In Bailey v. Callaghan, the Sixth Circuit, in a published 2-1 opinion, held that plaintiffs have no chance of success on their claims under the First Amendment and Equal Protection Clause, and reversed the district court’s preliminary injunction barring enforcement of Public Act 53.  The majority determined that plaintiffs’ First Amendment claim fails because the Act does not restrict speech and does not discriminate based upon viewpoint.  Applying a rational-basis review, the majority concluded that plaintiffs’ equal-protection claim also fails because it determined that there is a conceivable legitimate governmental interest in support of the classification barring public-school employers, but not other public employers, from using their resources to collect union dues.

The dissent concluded that plaintiffs’ First Amendment claim is likely to succeed because though Public Act 53 is viewpoint-neutral on its face, it is viewpoint-discriminatory in fact.  Examining the neutral justifications for Act 53 offered by the State of Michigan – saving money, promoting union accountability, and providing a “check on union power” – the dissent determined that Act 53 is impermissibly motivated by Michigan’s desire to suppress the school unions’ viewpoint.

In lieu of granting leave to appeal in Langton v. State of Michigan, the Michigan Supreme Court reversed the judgment of the Court of Appeals and reinstated the order of the Court of Claims denying in part the defendant’s motion for summary judgment.  The Michigan Supreme Court determined that because the theory of vicarious liability is not concerned with the acts or omissions of the principal, the Court of Appeals erred in granting summary disposition to the defendant because it did not have a duty to intervene.

The Michigan Supreme Court will hear oral argument on whether to grant the application for leave to appeal or take other action in Rambin v. Allstate Insurance Company.  The parties shall address at oral argument whether the plaintiff took the motorcycle on which he was injured “unlawfully” within the meaning of MCL 500.3113(a).  Specifically, whether “taken unlawfully” under MCL 500.3113(a) requires the person using the motorcycle to know that such use has not been authorized by the owner; and, if so, whether the Court of Appeals erred in concluding that the plaintiff lacked such knowledge as a matter of law given the circumstantial evidence presented.

The Michigan Supreme Court granted the application for leave to appeal in People v. Johnson.  The parties shall address:  (1) whether the amendment of the supplemental notice of intent to seek to enhance the defendant’s sentence was contrary to MCL 769.13, and if so, what remedy the defendant is entitled, if any; and (2) whether the trial had authority to sentence the defendant as a fourth habitual offender, if the original notice was defective and no order was entered allowing the notice to be amended.  The Court invited the Prosecuting Attorneys Association of Michigan, the Criminal Defense Attorneys Association of Michigan, and the Criminal Law Section of the State Bar of Michigan to file briefs amicus curiae.

The plaintiff was employed by the city of Burton as the chief of police from 2002 until 2007, when the mayor of Burton did not reappoint him.  Plaintiff brought a retaliation claim against the city and the mayor in his individual capacity under the Whistleblowers’ Protection Act (WPA), which protects an employee against an employer’s retaliatory employment actions, when the employee engaged in protected activity.  Plaintiff claimed that the mayor’s decision not to reappoint him was because Plaintiff made repeated complaints that the refusal to pay his previously accumulated unused sick and personal leave time would violate a city ordinance.  After the jury returned a verdict in favor of plaintiff, the trial court denied the defendants’ motion for judgment notwithstanding the verdict (JNOV).  The Michigan Supreme Court, in Whitman v. City of Burton, determined that the Court of Appeals erred when it reversed the trial court’s denial of defendants’ motion for JNOV.  The Court of Appeals, in a split published opinion, held that as a matter of law, plaintiff’s claim was not actionable under the WPA because he did not act with a desire to inform the public on matters of public concern, but instead acted to advance his own financial interests.  The Michigan Supreme Court interpreted the plain language of the WPA, MCL 15.362 in particular, and concluded that nothing in the statutory language addresses an employee’s motivation, nor does it mandate that an employee’s primary motivation be a desire to inform the public of matters of public concern.  Further, the Michigan Supreme Court held that to the extent its decision in Shallal v. Catholic Social Servs of Wayne Co, 455 Mich 604; 566 N.W.2d 571 (1997) has been interpreted to mandate specific motive requirements, it is disavowed.  The Michigan Supreme Court remanded the case to the Court of Appeals for consideration of all remaining issues, including whether the causation element of MCL 15.362 has been met.

Eighteen months after Ottawa County District Judge Kenneth Post jailed a young criminal defense attorney for persistently asserting his client’s Fifth and Sixth Amendment rights, the Michigan Supreme Court found that Judge Post’s conduct breached numerous standards in the Code of Judicial Conduct and imposed a 30-day suspension without pay.  The order is here.

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In lieu of granting leave to appeal, the Michigan Supreme Court reversed the August 28, 2012 Court of Appeals judgment in Estate of Kerin LaJoice v Northern Michigan Hospitals Inc., et al. In so doing, the Court reaffirmed several prior rulings establishing that a defective notice of intent (“NOI”) filed after the statute of limitations period has run does not toll the wrongful-death saving provision under MCL 600.5852. 

LaJoice involves a malpractice claim brought by the decedent’s estate against the hospital and various physicians.  Here, the defective NOI was filed after the statute of limitations had expired but before the expiration of the wrongful-death savings statute.  The trial court dismissed the plaintiff’s claim with prejudice after finding that the NOI was defective and did not constitute a good-faith attempt to comply with MCL 600.2912(b).  The Court of Appeals reversed the trial court’s ruling reasoning.  It held that the NOI constituted a good-faith attempt to comply with MCL 600.2912(4) and, further, that any amendment of the NOI would relate back to the time the original NOI was filed, under the rule established in Bush v. Shabahang, 484 Mich. 156 (2009).  However, the Supreme Court noted an important difference distinguishing this case from the facts presented in Bush.  Here, unlike in Bush, the defective notice of intent was filed after the statute of limitations had expired.  The Court has already decided that issue—a late-filed defective notice of intent does not toll the wrongful-death savings period. 

Justice Cavanagh dissented and noted that, just as he expressed in his dissenting opinion in Waltz v. Wyse, 469 Mich. 642 (2004), he believes that MCL 600.5856 applies to toll the wrongful-death saving period.  He notes that the plain language of the statute establishes that filing a complaint tolls the limitations period.  Therefore, despite any defects in the plaintiff’s notice of intent, filing of the complaint tolled the wrongful-death saving period.  Accordingly, Justice Cavanagh writes that this plaintiff should be permitted to amend the notice of intent and proceed with the lawsuit.