One Court of Justice

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 granted the application for leave to appeal in Ter Beek v. City of Wyoming.  The issues to be considered include:  (1) whether a city zoning code ordinance, which prohibits any use that is contrary to federal law, state law, or local ordinance, is subject to state preemption by the Michigan Medical Marihuana Act (MMMA); and (2) if so, whether the MMMA is subject to federal preemption by the federal Controlled Substances Act (CSA) on either impossibility or obstacle conflict preemption grounds.

The Court also granted leave to appeal in People v. Tanner, to consider whether People v. Bender, 452 Mich 594 (1996), should be overruled.  The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae.  The Court also granted leave to appeal in Majestic Golf, LLC v. Lake Walden Country Club, Inc.

The Court directed the Clerk to schedule oral argument on whether to grant the application or take other action in Huddleston v. Trinity Health Michigan.  The parties shall submit briefs addressing whether the Court of Appeals erred when it concluded that the plaintiff suffered a compensable injury; whether it misapplied Sutter v. Biggs, 377 Mich 80 (1966); and whether its decision is contrary to Henry v. Dow Chemical Co, 473 Mich 63 (2005).  The Michigan Association for Justice and Michigan Defense Trial Counsel, Inc. are invited to file briefs amicus curiae.

The Michigan Supreme Court granted the applications for leave to appeal in both SMK, LLC v. Dep’t of Treasury and Fradco, Inc v. Dep’t of Treasury, and ordered that the two cases be argued and submitted to the Court together.  The parties shall address:  (1) whether the running of the 35-day time period in MCL 205.22(1) for an aggrieved taxpayer to file an appeal in the Tax Tribunal from a final assessment is triggered when the Department of Treasury complies with the notice provision of MCL 205.28(1)(a), or is there an additional notice requirement under MCL 205.8 when a taxpayer has filed a proper written request designating an official representative to receive copies of letters and notices; and (2) whether the tolling ruling adopted by the Tax Tribunal and the Court of Appeals is contrary to the finality language of MCL 205.22(4) and (5).

The Court also granted leave to appeal in People v. Harris, limited to the issue of whether the evidence was sufficient to sustain the defendant’s conviction of extortion.

Justice David Viviano heard his first day of oral arguments on March 5, 2013, in his new position as Justice of Michigan Supreme Court.  Last Wednesday Governor Snyder announced Justice Viviano as the replacement for ex-Justice Diane Hathaway who pled guilty to bank fraud in late January.  Justice Viviano served as a judge on the Macomb County Circuit Court for six years before his recent appointment.  He served as the chief judge for that circuit since 2011.

In a technically-unanimous opinion, the Michigan Supreme Court reversed the Court of Appeals and remanded a Whistleblowers’ Protection Act (WPA) case for reinstatement of a trial verdict for plaintiff.  It was technically unanimous since Justice Zahra did not participate because he was on the Court of Appeals’ panel that reversed the trial court’s denial of summary disposition to defendants, and Justice McCormack did not participate, presumably since argument occurred before her tenure began.

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The Michigan Supreme Court granted the application for leave to appeal in Henry v. Laborers Local 1191.  The parties shall include among the issues to be briefed:  (1) whether the federal National Labor Relations Act (NLRA), or the federal Labor Management Reporting and Disclosure Act (LMRDA), preempt Michigan’s Whistleblower Protection Act (WPA), if the challenged conduct actually or arguably falls within the jurisdiction of the NLRA or the LMRDA; (2) whether a union employee’s report to a public body regarding suspected illegal activity, or participation in an investigation of the same, is of only peripheral concern to the NLRA or the LMRDA such that the employee’s claims under the WPA are not preempted by federal law; and (3) whether the state’s interest in enforcing the WPA is so deeply rooted that, absent compelling congressional direction, courts cannot infer that Congress has deprived the state of the power to act.  The Court invited the Attorney General and the Labor and Employment Law Section of the State Bar of Michigan to file briefs amicus curiae.

In lieu of granting leave to appeal in People v. Arthur, the Michigan Supreme Court remanded the case to the Saginaw Circuit Court for an evidentiary hearing regarding the decision to keep the defendant in shackles during his jury trial, and ordered the trial court to articulate with particularity, on the record, its reasons for requiring the defendant to do so.  The trial court shall receive evidence and make findings of fact regarding:  (1) whether the physical restraints were justified under Deck v. Missouri, 544 U.S. 622 (2005); and (2) whether those restraints were visible to any jurors, either during jury selection or afterward.  The Michigan Supreme Court retains jurisdiction. Read more »

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

In People v. Deroche, the Michigan Court of Appeals held that a prosecution for constructive possession of a firearm in the defendant’s home while under the influence of alcohol violated the defendant’s Second Amendment rights.  Novi officers went to the defendant’s home based on two separate disturbances on the same evening.  The officers learned that a gun was located in the defendant’s home, although the defendant’s mother-in-law had hidden the weapon from him by the time they arrived.  The court affirmed dismissal of the charge for possession of a firearm while under the influence of alcohol in violation of MCL 750.237.  The court reasoned that the statute was unconstitutional as applied to prosecution under a theory of constructive possession inside the defendant’s own home—behavior that the court held was protected by the Second Amendment.

On Friday, January 11, 2013, the Michigan Supreme Court denied two applications for leave to appeal.

The Michigan Supreme Court issued one miscellaneous housekeeping Order.