One Court of Justice

In the 2006 decision in  Cameron v Auto Club Ins Ass’n, a narrow majority of the Michigan Supreme Court found that the provisions of the No Fault Act that tolled the statute of limitations for minors/insanity did not prevent the application of the “one-year-back” rule in the Act that limits the amount recoverable to losses occurring no more than one year before the action is brought.  In 2010, in Univ of Mich Regents v. Titan Ins Agency, a new 1-vote majority of the Michigan Supreme Court reversed Cameron concluding that the tolling provisions did prevent the application of the one-year-back rule, and that a plaintiff whose action was saved by virtue of that tolling provision was not limited to damages from the year preceding the action.  Our discussion of the Regents decision can be found here.  Yesterday, the Michigan Supreme Court shifted again in Joseph v. Auto Club Ins. Ass’n, reversing Regents and reinstating Cameron.  Thus, once again, a plaintiff whose claim is preserved by virtue of the minor/insanity tolling provision is limited to damages incurred in the year prior to bringing the action.

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The Michigan Supreme Court denied one application for leave to appeal.

In People v. Dillion, the Michigan Court of Appeals considered whether a police officer had reasonable suspicion to stop the defendant and search his car. The officer stopped the defendant for violation of a statute that prohibits the use of “dangling” or “suspended objects” that obstruct the driver’s vision.  After searching the defendant’s car, the officer arrested the defendant for possession of less than 25 grams of heroin.  The trial court suppressed the evidence on the basis that the statute was void for vagueness. The Court of Appeals held that the search was lawful because the violation of the statute, which was not void, gave the officer reasonable suspicion to stop the defendant. First, the Court reasoned that police officers have reasonable suspicion to stop a vehicle whenever it is being operated in a manner that violates a law. Here the defendant was in violation of the statute because the air freshener in his car was dangling and had the potential to obstruct his view. Second, the Court found that the statute was not void for vagueness or unconstitutional because the statute uses commonly understood terms that place an ordinary citizen on notice of the prohibited conduct and provides police officers sufficient guidance to apply the statute fairly. Lastly, the Court found that the language was sufficiently narrow because the statute only prohibits “dangling or suspended objects,” not rearview mirrors or glare, as the trial court had understood. Accordingly, the Court of Appeals reversed the trial court and remanded for further proceedings.

People v. Williams is a veritable case study on the classic divide over issues of statutory interpretation.  The issue in Williams was whether the 2004 statutory amendment (2004 P.A. 128) to the statute for armed robbery (MCL §§ 750.529 and .530) was intended to eliminate the historical requirement of a completed larceny.  The Justices split 4-3 along traditional lines over this question of legislative intent.  The majority looked strictly at the statutory language, first in isolation, then in contrast to the pre-amendment language, and finally in the context of other language in the statute and of other penal statutes and codes.  From this analysis, the majority found a clear intent to depart from the statute’s common-law underpinnings.  The dissent, on the other hand, did not believe this intent was sufficiently clear to warrant an interpretation that was dissonant with the common-law.  Like the majority, the dissent looked first to the plain language, then found further in the legislative history and the fact that the majority ruling obliterated the distinction between armed robbery and assault with intent to rob and steal.

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 In Mitchell v. Mitchell, an ex-wife’s refusal to provide her ex-husband with a background check on her current boyfriend ended with the Michigan Court of Appeals ruling that a modification to the divorced couple’s child custody agreement was appropriate.  The trial court had ordered the ex-wife’s boyfriend to provide a background check to ensure the safety of the children, who were living with their mother at the time.  When the boyfriend refused to provide the information, the court eventually granted the ex-husband custody of the children during the school year.  The ex-wife appealed the decision, arguing that the trial court failed to establish enough change in circumstances to warrant the modification, did not have sufficient evidence to support its decision, and should not have considered the boyfriend’s background check a relevant issue.  Additionally, the ex-wife argued that the trial judge should be disqualified from future proceedings because he was indignant towards her in his rulings.  The Court of Appeals disagreed with the ex-wife and ruled that the trial court was well-founded in its decision.  The Court reasoned that the trial court was very thorough in its findings and had the evidence necessary to support its decision to modify the custody agreement.  The Court agreed that the modification was in the best interest of the children given the ex-wife’s “vengeful, and vindictive” behavior, her bribes and threats towards the children, and her boyfriend’s encouragement of the situation.  In short, the Court found that the ex-wife’s claims were generally unsupported and that the trial court had issued an appropriate decision.

Several  decisions by the Michigan Court of Appeals have recognized the doctrine of “imperfect self-defense”—the concept that a defendant is guilty only of manslaughter, and not of murder, if the defendant would have been entitled to claim self-defense except for the fact that he provoked the danger to himself.  In People v. Reese, the Michigan Supreme Court considered this doctrine in the context where Reese had been the initial aggressor:  Reese had fired his handgun from his car, then approached the victim on foot, and then a shoot-out ensued when the victim shot at Reese and then Reese returned fire, killing the victim.  In a 4-to-3 decision, the Michigan Supreme Court held that Michigan law does not recognize the doctrine because the doctrine was not a part of the common law in 1846 when the Michigan Legislature codified the common-law crimes of murder and manslaughter and their defenses; instead, the doctrine was announced well after 1846, arising for the first time in Texas in 1882 and not making an appearance in Michigan until 1971. Read more »

In Smitter v Thornapple Township, Case No. 144354, the Court granted leave to appeal the judgment of the Court of Appeals.  The Court previously had considered an application for leave to appeal an earlier order from the Court of Appeals, and had, in lieu of granting, remanded this case to the Court of Appeals for consideration as on leave granted.  The case involves questions of coordinating statutory workers’ compensation benefits with other insurance.  The Court of Appeals affirmed the decision of the Worker’s Compensation Appellate Commission holding that the Second Injury Fund may not reduce its reimbursement to the township to reflect the township’s unexercised right to coordinate benefits.

In People v Franklin, No. 142323, the Court reversed the decision of the Court of Appeals.  We previously discussed the case here.  In that case, Mr. Franklin was convicted in a bench trial of first-degree home invasion, larceny of a building, and larceny of a firearm.  Mr. Franklin previously had pleaded guilty to the second-degree home invasion charge, but the trial court had set aside his plea because it contained a sentencing provision the court refused to enforce. 

The Court of Appeals held that the trial court was not bound to accept the sentence portion of the plea agreement, but the trial court could not unilaterally set aside the plea itself.  Instead, it held that under MCR 6.310(B)(2), the trial court was required to provide Mr. Franklin with an opportunity to affirm or withdraw the plea.  The Court of Appeals accordingly vacated the conviction. 

On leave to appeal, the Michigan Supreme Court reversed.  It held that the Court of Appeals correctly interpreted MCR 6.130(B)(2).  It further held, however, that the trial court had not plainly erred in not affording Mr. Franklin the opportunity to affirm or withdraw his plea because People v Grove, 455 Mich 439 (1997), authorized the trial court to reject the plea agreement and subject the defendant to trial over his objection.  The Court held that Grove was superseded by MCR 6.130(B), so in the future such error will be plain, but that it was not plain error on the part of the trial court not to realize it.  The Court further noted that, even if it was plain error for the trial court to deny Mr. Franklin the opportunity to affirm his plea as required by the new court rule, the Court had discretion not to reverse his convictions because he did not sufficiently object to the error, and he should not be permitted to “harbor error as an appellate parachute.”  For these reasons the Court reversed.

A person can be judicially estopped from pursuing a sexual harassment claim based on her failure to include the lawsuit as a potential asset in a Chapter 13 bankruptcy proceeding.  In Spohn v. Van Dyke Public Schools, the plaintiff was allegedly sexually harassed from September through December 2008.  She contacted an attorney about the potential sexual harassment claim in January of 2009.  Meanwhile, the plaintiff filed her Chapter 13 bankruptcy plan in December 2008, but did not disclose the potential lawsuit as an asset.  The defendant argued that the plaintiff should be judicially estopped from bringing her claim because she failed to disclose it to the bankruptcy court.  Judicial estoppel prevents a person who has successfully asserted a position in one proceeding from asserting an inconsistent position in a subsequent proceeding.  In this case the plaintiff assumed a position that was contrary to the one she asserted under oath in her bankruptcy proceedings by failing to disclose her sexual harassment claim.  Moreover, the plaintiff was successful in asserting her position because the bankruptcy court adopted her bankruptcy plan.  Lastly, the plaintiff’s omission did not result from mistake or inadvertence.  The plaintiff knew about her potential sexual harassment claim at least one month before her plan was filed, she had a motive to conceal claim, and there was evidence of bad faith because she never made any attempt to amend her bankruptcy plan.  Accordingly, judicial estoppel barred the plaintiff’s sexual harassment claim. 

The Michigan Supreme Court granted the application for leave to appeal in Kim v. JP Morgan Chase, limited to the issues of whether the defendant acquired the plaintiffs’ loan by operation of law, and further, if the foreclosure procedures in the case were flawed, whether the foreclosure is void ab initio or voidable.  The Court invited the Michigan Association of Bankers, the Real Property Law Section of the State Bar of Michigan, and the Consumer Law Section of the State Bar of Michigan to file briefs amicus curiae.

In lieu of granting leave to appeal in People v. Brown, the Michigan Supreme Court reversed in part the judgment of the Court of Appeals, and remanded the case to the Wayne County Circuit Court for a new trial.  The Michigan Supreme Court determined that the trial court erred in concluding that the defendant had received the effective assistance of trial counsel.  The Michigan Supreme Court noted that counsel was ineffective for failing to request the National Counsel on Alcoholism and Drug Dependence staff activity logs before trial, and for failing to effectively cross-examine the sole complainant whose testimony resulted in the defendant’s convictions.  The Michigan Supreme Court also determined that the defendant met his burden for establishing entitlement to relief under MCR 6.508(D) because his former appellate counsel was ineffective for failing to raise these issues on direct appeal, which thereby prejudiced the defendant.

The Court denied eight applications for leave to appeal.  Justices Cavanagh, Marilyn Kelly, and Hathaway would grant leave to appeal in Ruzak v. USAA Ins. Agency, Inc., a case in which Justice Zahra did not participate because he was on the Court of Appeals panel that addressed substantially the same issue presented.  Justice Marilyn Kelly would grant leave to appeal in People v. Davis, and People v. Manni.  The Court ordered the plaintiff in Parise v. Detroit Entertainment, LLC to pay $250 for filing a vexatious appeal.

In People v. Glenn-Powers, the Michigan Court of Appeals considered whether the defendant was lawfully arrested for violation of probation when the probation violation warrant was not sworn under oath.  A search subsequent to the defendants arrest had produced 35 packets of heroin.  The trial court suppressed the heroin on the basis that the search followed an unlawful arrest because the probation violation warrant was not supported by an affidavit made under oath as required by the Fourth Amendment.  The Court of Appeals held that the arrest was in fact valid, and therefore the evidence should not have been suppressed.  First, the Court reasoned that in this case an arrest warrant was not required because Michigan law authorizes arrest without a warrant whenever an officer has reasonable cause to believe that a person has violated probation.  Second, the defendant had violated his probation by committing an assault, which provided an independent reason for an arrested without a warrant.  Third, given a probationer’s reduced privacy interests, the Court reasoned that the oath or affirmation requirement generally applicable to warrants does not apply to a warrant for the arrest of a probationer.  Lastly, the Court noted that even if Michigan law required a probation warrant to be under oath or affirmation, violation of such a state-imposed requirement does not violate the Fourth Amendment and would not invalidated a search subsequent to such an arrest.  Accordingly, the Court of Appeals reversed the trial court and remanded for further proceedings.

A congregant’s statements made in confidence to a cleric are privileged and as such are inadmissible evidence under Michigan law.  Because of this “cleric-communicant” privilege, the Court of Appeals in People v Bragg affirmed the circuit court’s quashing of such evidence, when a district court required the clergy to testify to the defendant’s admission of guilt in the criminal sexual assault of his nine-year old cousin.  The opinion was narrow, limited only to whether the cleric may reveal the communicator’s statements, and leaving the issues of whether clergy may reveal such information to police, or must report knowledge of ongoing or future criminal activity to authorities, to future cases.

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On Friday, the Michigan Supreme Court clarified the steps trial courts must take to ensure that the notice requirements under the Indian Child Welfare Act (“ICWA”) are strictly enforced in a consolidated order resolving two cases, In re C I Morris Minor, Case No. 142759 and In re J L Gordon Minor, Case No. 143673.  The Court ruled that any sufficiently reliable information that a child is an “Indian child” for purposes of ICWA will trigger the notice requirement found in 25 U.S.C. § 1912(a).  Further, the Court concluded that a parent may not waive the notice requirement rights granted to Indian tribes, as well as other interested parties, under ICWA.  The statute gives tribes rights equal to parents and other Indian custodians. Accordingly, tribal jurisdiction cannot be defeated by the actions of individual members of a tribe.  Finally, trial courts were directed to keep the following documentation in the court record, at a minimum: 1) an original or copy of the actual notice personally served or sent via registered mail to parent, Indian custodian, tribe, and/or Secretary of the Interior; and, 2) original or legible copy of the return receipt or other proof of service.  Trial courts were also encouraged to keep a copy in the record of any correspondence between the court, petitioner, and tribe or other interested party. Read more »

In People v. Smith-Anthony, No. 300480, the defendant stole a perfume gift box from a store.  The store’s loss-prevention officer saw the defendant remove the gift box from the display via video surveillance.  The officer then decided to observe the defendant in person.  The officer followed the defendant through the store, “stay[ing] back giving her some space.”  The officer watched the defendant place the gift box into her bag and leave the store without paying.  The loss-prevention officer confronted the defendant approximately 30 or 35 feet into the mall surrounding the store.  The two scuffled.  The jury convicted the defendant of larceny from the person in violation of MCL 750.357.  The Court of Appeals reversed the conviction because the defendant had not stolen “from the person of another” as MCL 750.357 requires.  The “from the person” element of the offense is satisfied only where the property is taken from the possession of the victim, or taken from within the immediate presence or area of control of the victim.  Here, the Court held that no evidence supported such a finding.  The officer began his observations from the video-surveillance room, and then remained in visual and hearing range of the defendant.  The officer did not testify that he was within “arm’s length” of the defendant or that the defendant was aware that the officer was nearby.  Such evidence was insufficient to establish that the defendant took the gift box within the officer’s immediate presence or area of control. Read more »

The Michigan Supreme Court granted the application for leave to appeal in Whitman v. City of Burton.  The parties shall include among the issues to be briefed whether Shallal v. Catholic Social Services of Wayne County, 455 Mich 604 (1997), correctly held that the primary motivation of an employee pursuing a whistleblower claim must be a desire to inform the public on matters of public concern, rather than personal vindictiveness.

The Michigan Supreme Court granted the application for leave to appeal in Petipren v. Jaskowski, limited to the issue of whether the Chief of Police is entitled to absolute immunity under MCL 691.1407(5).  The Court invited the Michigan Association for Justice and the Michigan Association of Chiefs of Police to file briefs amicus curiae.

In lieu of granting leave to appeal in Hendrix v. City of Detroit, the Michigan Supreme Court reversed the judgment of the Court of Appeals and reinstated the order of the Wayne Circuit Court, stating that MCL 125.541(7) entitles the defendant city to a money judgment against the owner of a dangerous building for the full cost of the building’s demolition.

On the Court’s own motion, in In re Hon. Sylvia A. James, the Court shortened the time limits for filings under MCR 9.224(A) and (B). 

The Court denied 10 applications for leave to appeal and 1 prisoner’s motion to waive fees.

In Michigan v. Acosta-Baustista, the defendant was involved in a fatal car accident while driving on an expired Mexican driver’s license.  The accident occurred when a high school student pulled out of a parking lot into oncoming traffic and was struck by the defendant.  The police later determined that the defendant had the right of way and was not negligent.  The defendant was charged, however, with violating a Michigan statute which makes it a felony for a person to cause a death by operating a motor vehicle if the person never applied for a driver’s license or had a suspended or revoked license.  The defendant was present in the United States illegally and had never applied for a Michigan driver’s license, but under a treaty between the United States and Mexico, each country honors a driver’s license issued by the other.  The government argued that the defendant violated the statute because he never applied for a Michigan driver’s license and would not be eligible for one based on his illegal status.  The Michigan Court of Appeals was not persuaded by the government’s argument.  First, the Court noted that the plain language of the statute does not apply to persons driving on an expired license.  Second, the Court declined to draw a distinction under the treaty between the U.S. and Mexico based on a person’s immigration status.  The court concluded that the Michigan statute is not impacted by a person’s immigration status and should be applied in the same manner regardless of whether a person has a driver’s license from Michigan, a foreign country that is a signatory to the treaty, or one of the other 49 states. 

A curb cutout that runs from a sidewalk to abut a county road is part of a county highway, but exists outside of that portion of the highway designed by vehicular travel.  This conclusion from the Court of Appeals through Judge Murphy’s opinion in Moraccini v. City of Sterling Heights, No. 301678, resulted in Court affirming the trial court’s denial of the City of Sterling Heights motion for summary judgment arguing that it was immune from a suit alleging injury caused by a defect in such a curb cutout.  The legal issues turned on MCL 691.1402, which excepts highways from governmental immunity, but also states that municipalities are generally not liable for injuries allegedly caused by a county highway.  The statute, however, does state that in the event that a plaintiff can prove statutory knowledge and causation prerequisites, a municipality may be liable for defects in portions of county highways existing outside of the improved portion of the highway designed for vehicular travel, including sidewalks and “other installations.”  The Court of Appeals concluded that because the general definition of highway explicitly includes “sidewalks”, it also includes a curb cutout of a sidewalk that abuts a county highway.  Thus, the general highway exception to governmental immunity applies.  The Court of Appeals, however, concluded that cutout was not designed for vehicular travel, and thus a municipality is not immune from suit alleging defects in that cutout.

 The Michigan Supreme Court paved the way for MDOT takeover of the Gateway Project near the Ambassador Bridge with an order which summarily denies the emergency application for relief from the owners of the Bridge.  MDOT and the owners of the Ambassador Bridge have been locked in litigation in Wayne County Circuit Court involving construction obligations for the Gateway Project.  The trial court issued an order transferring control of the area to MDOT, after holding that DIBC was not in compliance with its summary disposition order granting MDOT’s specific performance claim.  See MDOT v. Detroit International Bridge Co. for the Court of Appeals’ order that was summarily upheld by the high court, and affirms the MDOT takeover of the area. 

The trial court’s order permits MDOT to demolish structures near the Ambassador that MDOT claimed violated DIBC’s contractual obligations, as well as to construct other parts of the Gateway Project.

The Supreme Court also summarily denied relief in orders in two other cases.

Michigan’s Use Tax Act imposes a “tax for the privilege of using, storing, or consuming tangible personal property in this state.”  MCL 205.93(1).  The Act provides a tax exemption for fuel, supplies and repairs for vessels that are 500 tons or more and engaged in interstate commerce.  The plaintiff in Andrie, Inc. v. Department of Treasury, argued that a tug and barge, which operated together, constituted a single “vessel” under the Act.  The Michigan Court of Appeals disagreed, holding that under a plain reading of the statute, the exemption is intended to apply to a single vessel that is 500 tons or more, not two vessels that are connected or that operate as a single unit.  “If the Legislature intended the exemption to apply to multiple vessels working in unison,” the court reasoned, “it easily could have stated as such.”  Therefore, the tugs, which were less than 500 tons, did not qualify for the tax exemption.

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In Frowner v. Smith, No. 305704, the Michigan Court of Appeals held that where a parent seeks custody of a child from a third party, the trial court must determine whether all the relevant factors, including the child’s best interests, demonstrate that the child should remain with the third party.  The parent does not need to make the threshold showing of a change in circumstance to gain custody.  Read more »

On April 26, 2012, the Michigan Supreme Court granted the request of the Judicial Tenure Commission for the appointment of Hon. Donald G. Miller as Master in In re Hon. Deborah Ross Adams, No. 144985.