One Court of Justice

This week, the American Inns of Court held a panel discussion on the future of civil litigation.  The panel included Judge Shapiro, who offered his perspective from the appellate bench. 

First, the panel discussed the proliferation of summary disposition motions over the last decades.  Judge Shapiro emphasized the importance of producing record evidence to support the plaintiff’s claim below and then attaching the key evidence to the appendix of the appellate brief, if summary disposition is granted.  The evidence should also exist in the record on appeal, but only one judge on the panel will receive the record and he or she typically holds onto it until after oral argument.  The other judges won’t see the key evidence referenced in the briefing until after oral argument, unless it is attached to an appendix.

As for new technology, Judge Shapiro welcomed the advent of video depositions and video technology in the courtroom.  He advised that if video is the only way to give the court a full and accurate picture of key evidence or testimony, send the DVD with the briefing to the Court of Appeals for the judges to review.  In his experience, the judges will watch it.

Finally, while the use of ADR has increased of late, Judge Shapiro lamented that the Court of Appeals had to disband its settlement office because of recent budget cuts.  The Court is looking for other methods and avenues for encouraging and facilitating settlement.

On Wednesday, February 3, 2010, the Michigan Supreme Court administratively closed two cases for failure of the appellants to pay the required filing fees.

On remand from the Michigan Supreme Court, on February 2, 2010, the Court of Appeals published a per curiam opinion in People v. Dowdy, No. 287689.  The Court of Appeals affirmed the trial court’s dismissal of charges against a homeless defendant for his failure to comply with the reporting requirements of the Sex Offenders Registration Act (“SORA”), MCL § 28.721 et seq.  Although acknowledging that the terms “domicile” and “residence” are often used interchangeably, the Court of Appeals emphasized that the term “residence” generally, and as it is defined in SORA, does not include the intent to make a residence a permanent home.  Under the plain language of SORA, the term “residence” refers to a place, dwelling, or abode, where an individual has a “regular place of lodging.”  Applying dictionary definitions to the term “lodging,” the Court of Appeals stated that it is defined as “[a] place to live,” or “accommodations in a house, esp. in rooms for rent[.]”  In considering whether the homeless defendant has a residence for purposes of SORA, the Court of Appeals explained that “[t]he provisional location where a homeless person happens to spend the night does not fall within the ambit of these definitions.”  The Court of Appeals recognized the Legislature’s intent to provide for public safety by requiring the maintaining of information regarding the location of convicted sex offenders, but focused on those who have a domicile or residence as defined by SORA.  The Court of Appeals noted that it is solely within the province of the Legislature to require compliance by a homeless person by including a provision in SORA regarding reporting requirements for the homeless.

Yesterday, the Michigan Supreme Court peremptorily reversed the Court of Appeals in two cases.  In Ancona v. Gillepsie, No. 139319-21, 139328-33, The Court reversed that part of the judgment granting summary disposition to Bennigan’s in this dram shop action for the reasons stated in the Court of Appeals’ dissenting opinion.  Justice Markman, joined by Justice Corrigan, dissented in part, contending that the inconsistent deposition testimony of the drunk driver did not create a genuine issue of material fact that he was served alcohol at Bennigan’s on the night that he collided with the deceased. 

In People v. Bailey, No. 139276, the court vacated that portion of the Court of Appeals’ opinion addressing harmless error with respect to the jury instructions under review and remanded for reconsideration of its harmless error analysis for constitutional error under the holding in Neder v. United States, 527 U.S. 1 (1999).  Justice Young, joined by Justice Weaver, dissented, arguing that the jury instructions properly set forth the correct standards for self-defense and provocation and that the Court of Appeals’ opinion should be affirmed on that basis.

The court also denied a prisoner’s motion to waive filing fees.

On February 2, 2010, the Michigan Court of Appeals issued a per curiam opinion for publication in People v. Lucey, No. 287446, where it remanded for resentencing or rearticulation of a substantial and compelling reason for departing from sentencing guidelines.  The trial court imposed a prison sentence rather than the lesser penalty prescribed for reasons of logistical convenience and because the offense was a “location departure.”  The court held these were not substantial and compelling reasons.  Read more »

On February 2, 2010, the Court of Appeal published its opinion in People v. Mann, No. 288314.  Here, the Court of Appeals reviewed the Offense Variable (“OV”) 9 score associated with the Defendant’s conviction for armed robbery.  OV 9 is based on the number of victims placed in danger of physical injury or death.  Ten points are assessed for OV 9 where the number of victims is between two and nine, whereas a score of zero is assessed where the number of victims falls below that range.  In this case, the Defendant had entered a store armed with a knife and demanded money from an employee.  After obtaining the money, the Defendant left the store, commandeered a car, and forced the driver to drive him away from the scene.  The Defendant argued that his armed robbery was completed before he stopped the car to flee the scene, and thus the number of victims endangered during the robbery was only one.  The Court of Appeals disagreed, and pointed to the applicable statute (MCL § 750.530) which states that the course of committing a larceny includes “flight or attempted flight.”  Therefore, the Court of Appeals concluded that the carjacking was not only a separate crime, but a continuation of the armed robbery, thus the number of victims was two and the OV 9 score of 10 was appropriate.

On Friday, January 29, 2010, the Michigan Supreme Court granted leave to appeal in Priority Health v. Commissioner of the Office of Financial and Insurance Services.  The case arose after the Office of Financial and Insurance Services (now the Office of Financial and Insurance Regulation (“OFIR”)) barred health insurance carriers from conditioning the issuance of small employer health insurance plans on the employer making a minimum contribution toward the employees’ premium costs.  The circuit court and the Court of Appeals both affirmed OFIR’s ruling.  The Court of Appeals explained that because the Michigan Small Employer Group Health Coverage Act, MCL 500.3701 et seq., prevented a health insurance carrier from declining to renew a small employer health insurance plan for failing to make the requisite minimum employer contribution, health insurance carriers could not condition the issuance of a health insurance plan to a small employer on the employer’s agreement to make minimum payments to defray each employee’s expense.  The Court of Appeals’ decision is here.     

The Michigan Supreme Court granted Priority Health’s application for leave to appeal and ordered the parties to address “(1) whether, as part of a plan under the Small Employer Group Health Coverage Act, MCL 500.3701, et seq., an insurer or licensed [HMO] can require an employer to pay a specific percentage of the premium charged for each employee; and (2) whether MCL 500.3711(2) limits the provisions that can be included in such policies.”  The Court invited the Michigan Chamber of Commerce and the Small Business Association of Michigan to submit amicus curiae briefs.  The Michigan Association of Health Plans submitted an amicus brief in support of the application for leave to appeal.

Disclaimer:  WNJ represents the successful petitioner, Priority Health, in this matter.

On Friday, January 29, 2010, the Michigan Supreme Court signaled its intent to consider revising the discovery rule by granting leave to appeal in Colaianni v. Stuart Frankel Development Corporation.  In Colaianni, the plaintiff asserted tort claims against the defendants arising from purported exposure to toxic mold at her workplace.  The defendants moved for summary disposition based on the statute of limitations which the trial court denied based on the common-law discovery rule.  The Court of Appeals reversed the trial court’s decision under Trentadue v. Buckler Automatic Lawn Sprinkler Co., 479 Mich. 378, 738 N.W.2d 664 (2007), which eliminated the common-law discovery rule in Michigan.  The Court of Appeals panel majority urged the Michigan Supreme Court to reconsider its decision in Trentadue because, in the view of the Court of Appeals’ majority, the rule is unfairly harsh.  The Michigan Supreme Court appears to be willing to do just that, granting leave to appeal and ordering the parties to address whether Trentadue was correctly decided.

Justices Young and Corrigan authored a dissent complaining that the majority of Michigan Supreme Court justices are breaking from their previous views of stare decisis and taking cases to reverse recent precedent.

The Court invited the Negligence Section of the Michigan State Bar and the Michigan Defense Trial Counsel to submit amicus briefs.  The Michigan Association for Justice submitted an amicus brief in support of the plaintiff’s application for leave to appeal.

On Friday, January 29, 2010, the Court cleared its docket by denying leave to appeal in 137 cases and denying reconsideration in an additional 22 cases.   The Court granted leave in three cases which are addressed in a separate post.  The Court held People v. Wilkinson in abeyance pending the Court’s resolution of People v. Feezel.  The Court remanded the following cases:

People v. Hicks:  In a case involving egregious evidence of child sexual abuse, the Court vacated the portion of the Court of Appeals’ decision requiring the case to be assigned to a new circuit judge for re-sentencing but otherwise denied leave to appeal.  Justices Corrigan and Weaver would have reversed the Court of Appeals’ decision in its entirety because they believed that the circuit court had adequately justified a significant upward departure from the sentencing guidelines.  Warning—Justice Corrigan’s dissent contains an explicit description of the defendant’s conduct. 

Duskin v. Department of Human Services:  The Court vacated the Court of Appeals’ judgment and remanded the case to the trial court for reconsideration of that court’s class-certification order in light of the Michigan Supreme Court’s decision in Henry v. Dow Chemical Co.  Justices Corrigan and Young dissented because they believed that the Court’s decision in Henry would not change the correct result—denial of class certification.

People v. Gilmore:  The Court remanded the case so that the Wayne County Circuit Court could address the defendant’s motion to disqualify the judge before addressing the defendant’s motion for relief from judgment.

People v. Barbarich:  In lieu of granting leave to appeal, the Court remanded the case to the Court of Appeals as on leave granted.  Justice Cavanagh would have denied leave to appeal.

The Court entered an order clarifying its October 22, 2009 order remanding Shember v. University of Michigan Medical Center to the Court of Appeals for reconsideration in light of Bush v. Shabahang. 

The Court also ordered the Oakland County Prosecutor to respond to the application for leave in People v. Mathis to address whether the defendant had established cause in prejudice under MCR 6.508(D) in the event the defendant had identified scoring error in his criminal sentence.

In the first test of the Michigan Supreme Court’s new recusal standard, the Court denied motions filed by the Fieger law firm to disqualify Justices Corrigan, Markman, and Young.  In Pellegrino v. Ampco Systems Parking, No. 137111, Fieger claimed that these justices had attacked him by name during their election campaigns 10 years ago and had a history of bias against him.  In response to Fieger’s motion, Justice Markman defended his record noting that he had ruled both for and against Fieger’s clients and denied that his judgment would be affected by Feiger’s representation of the plaintiff in Pellegrino.  Justice Markman’s statement is here.  Because Justices Corrigan and Young denied Fieger’s motion before the new recusal rules were adopted, the Court did not address Fieger’s motion as to those justices.  As to Feiger’s motion to disqualify Justice Markman, Chief Justice Kelly and Justice Cavanagh noted that the statements Fieger relied upon were made 10 years ago and concluded that they did not question Justice Markman’s ability to be impartial in Pellegrino.

Justices Weaver and Hathaway concurred, but noted that they would not retroactively apply the Court’s new “appearance of impropriety” standard to actions or statements by justices occurring before the new standard’s adoption.

Justices Corrigan and Young did not participate in the Court’s consideration of the motion to disqualify Justice Markman.

In People v. Gipson,  No. 287324 (Jan. 28, 2010), the Michigan Court of Appeals affirmed Gipson’s convictions for first-degree felony-murder and armed robbery, holding that the trial court properly admitted both Gipson’s statements to police and evidence regarding his “Murder1” tattoo.  The Court’s opinion may be found here.

Read more »

On remand from the Michigan Supreme Court, the Court of Appeals determined in Auto-Owners Insurance Co. v. Ferwerda Enterprises, Inc., No. 277574 (Jan. 28, 2010), that the trial court should not have awarded attorney fees against the insurer when the insurer’s argument that no coverage existed was not frivolous.  The Court also reversed the award of penalty interest because the liability of the insurer was reasonably in dispute.  The opinion, authored by Judge O’Connell, is available here.

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On Wednesday January 27, 2010, the Michigan Supreme Court denied 19 applications for leave to appeal, denied the petitioner-appellants’ motion for reconsideration in the case of In re Brandon Gavin Handorf, Case Nos. 139742, 139753, 139754, and adopted the recommendation of the Judicial Tenure Commission in In re Nebel, Case No. 140203, and In re Sanders, Case No. 140202.  The Court also took substantive action in three civil and three criminal cases, which are discussed after the jump. Read more »

On January 26, 2010, the Court of Appeals published an unanimous opinion in Howell Education Association MEA/NEA v. Howell Board of Education, No. 288977.  The intervenor submitted a series of Freedom of Information Act (“FOIA”), MCL § 15.231, requests to defendant Howell Public Schools that included requests for all emails sent to and from three public school teachers.  The trial court had concluded that the teachers’ personal emails are public records subject to FOIA because they are retained by defendants on a computer storage system.  The Court of Appeals reversed the trial court’s decision, explaining that the ”‘mere possession of a record by a public body’ does not render the record a public document.”  Rather, the Court of Appeals held that in order for the emails to be public records, they must have been stored or retained by the defendants in the performance of an official function.  Without some showing that the defendants’ retention of the emails at issue has an official function aside from the retention itself, the Court of Appeals expressly declined to “drastically expand the scope of FOIA.”  Moreover, the Court of Appeals concluded that the teachers’ agreement to the defendants’ acceptable use policy, which gives notice to users that school officials may look at their email and that emails could be subject to release pursuant to a subpoena, nonetheless did not render their personal emails subject to FOIA. 

The Court of Appeals commented on the difficulty of applying a statute, the purpose of which is to promote transparency in government, that was enacted before email technology even existed.  Most importantly, the Court of Appeals emphasized that this question should be resolved by the Legislature, and expressly called upon the Legislature to address it.

On January 26, 2010, the Court of Appeals published its opinion in Weishuhn v. Catholic Diocese of Lansing, No. 287174.  In this case, a teacher at the Catholic St. Mary’s Elementary School filed a lawsuit asserting claims under the Civil Rights Act and Whistleblower Protection Act related to her termination.  The Defendants argued that these statutory claims were barred by the First Amendment, in the form of the “ministerial exception” which bars employment claims that inquire into the motivation of a religious institution’s contested employment decision regarding a “ministerial” employee.  The Court of Appeals affirmed the trial court’s factual conclusion that the teacher was, in fact, a ministerial employee.  The Court of Appeals focused on the nature and extent of the religious instruction she provided to her students, even during nominally secular classes like math, as well as her involvement in religious planning, proselytizing, and liturgical efforts.  Therefore, even though the teacher taught more math classes than religion classes at the time of her dismissal, she could still be considered a ministerial employee.  As such, the termination claims were properly dismissed.  In taking this action, the Court did note “[w]e recognize that it seems unjust that employees of religious institutions can be fired without recourse for reporting illegal activities, particularly given that members of the clergy, as well as teachers, are mandated reporters…However, to conclude otherwise would result in pervasive violations of First Amendment protections.”

After oral argument, the Supreme Court vacated its order granting leave to appeal in Superior Hotels, L.L.C. v. Township of Mackinaw, No. 138696, and denied leave to appeal because the Court was “no longer persuaded that the question should be reviewed.”  The Court originally granted leave to address whether the State Tax Commission has jurisdiction to correct an error in the taxable value of real estate in earlier years where no portion of the property was omitted. 

The Court of Appeals concluded that the State Tax Commission did have jurisdiction to correct this type of error, reversing the decision of the Tax Tribunal.  The Court of Appeals’ published decision remains controlling authority on this issue.  Our earlier post on the decision is here.

On Monday, January 25, 2010, the Michigan Supreme Court denied one prisoner motion to waive filing fees; denied two motions for reconsideration; granted one motion for temporary admission; granted two motions to extend briefing deadlines; and granted a motion filed by the Michigan State Bar’s Family Law Section to file an amicus curiae brief in Tkachik v. Mandeville, No. 138460.

In a case that may have significant ramifications for the criminal law bar, the Michigan Supreme Court granted leave to appeal in People v. Lown, No. 139969, to address whether the 180-day rule in Mich. Comp. Laws §§ 780.131(1) and 780.133 is jurisdictional and, if it is, whether delay beyond 180 days is ever permissible.  The 180-day rule requires that a criminal defendant be brought to trial within 180 days after the department of corrections notifies the appropriate prosecuting attorney that the defendant has been imprisoned.  The language of Section 780.133 appears to make the 180-day rule jurisdictional:  “In the event that, within [180 days], action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof.”  (Emphasis added.)  Recognizing the potential effect of this issue, the Court ordered the parties to address whether holding the 180-day requirement is jurisdictional violates the defendant’s constitutional rights when the defendant requests an extension, for example, to retain new counsel.  The Court also ordered the parties to address whether or to what extent the Court’s decision in this matter should have retroactive effect. 

The Court of Appeals denied the defendant’s speedy trial appeal.  The Michigan Supreme Court invited the Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan to submit amicus briefs.

On Friday, January 22, 2010, the Michigan Supreme Court granted leave to appeal in Beach v. Township of Lima to address whether a plaintiff who seeks to establish an adverse possession claim that affects property in a recorded plat must bring a claim under the Land Division Act if the plaintiff is not expressly requesting that the plat be vacated, corrected or revised.  The Court of Appeals held that a plaintiff need not bring a claim under the Land Division Act when he or she brings a quiet title action to establish adverse possession because a Land Division Act claim only alters the plat consistent with already existing property interests.  In other words, under the approach adopted by the Court of Appeals, a plaintiff may prevail in a quiet title action and later bring a claim under the Land Division Act to alter the plat–the two claims do not need to be brought simultaneously.  Such an approach has the effect of permitting inaccurate recorded plats.  The Michigan Supreme Court invited the Michigan Municipal League and the Real Property Section of the State Bar of Michigan to submit amicus briefs.  Our earlier post on the Court of Appeals’ decision is here.

Appellate criminal defense practitioners should note Justice Corrigan’s concurrence in People v. Henderson, No. 139375.  In Henderson, the Court of Appeals dismissed the defendant’s appeal because he did not timely file his appeal brief.  The Michigan Supreme Court remanded the case  to the Court of Appeals for consideration as though the defendant’s brief had been timely filed because the delay was solely attributable to the neglect of appellate counsel.  The Court concluded that defendant was deprived of effective assistance of counsel and ordered appellate counsel to pay costs to the Court.  Justice Corrigan concurred recommending that in cases where an attorney fails to timely prosecute a criminal appeal and thereby deprives the defendant of effective assistance of counsel, the Court should refer the negligent counsel to the Attorney Grievance Commission. Read more »

In Foote v. Dow Chemical Co., No. 288294, the Michigan Court of Appeals recently reaffirmed that, where an employer’s handbook disclaims the intent to form a contract with its employees, the employee cannot enforce the employer’s policies in court.  In Foote, the plaintiff was fired after Dow learned that he had failed to disclose that he was having a consensual sexual relationship with a subordinate.  The plaintiff sued claiming that his termination violated Dow’s internal policies.  The Midland County Circuit Court granted summary disposition and held that the plaintiff was an at-will employee who could be terminated for any or no reason.  The Court of Appeals affirmed, concluding that the plaintiff could not distill a contractual right to continued employment from Dow’s employment handbook.

Disclaimer:  WNJ represented the prevailing defendant-appellee, The Dow Chemical Company, in this case.