One Court of Justice

In what promises to be an important decision for post-conviction relief petitions, our Supreme Court has granted an application to address the applicable standard for an innocence claim under MCR 6.508(D).  This particular armed robbery case — with an apparently long procedural history – originates from a 1995 Wayne County Circuit Court criminal file, People v William Craig Garrett.  Two currently sitting justices, Markman and Cavanagh, have previously voted to grant leave for this case on a prior trip up to our high court.  It appears that ineffective assistance of counsel at trial will also be an issue in this appeal.

Besides the threshold legal standard, the parties are asked to address: (1) whether this case meets the applicable standard; (2) whether any other rule under the 6.500 series offers relief for a “significant possibility” of actual innocence; and (3) whether, if MCR 6.508(D) does bar relief, if there’s any recourse for a person with “a significant possibility of actual innocence” under the Michigan or U.S. Constitutions.

Justice McCormack, who recently joined the bench after a long career bringing 6.500 petitions and similar actual innocence cases, concurred to suggest additional analysis of these issues: (1) whether MCR 6.508(D)(2) bars relief premised on issues previously decided on direct appeal; (2) whether that subsection bars relief for a claim of ineffective assistance of counsel premised on an issue decided against the defendant on direct appeal; (3) the scope of relief available under MCR 7.316(A)(7) (which allows the MSC to “enter any judgment or order that ought to have been entered, and enter other and further orders and grant relief as the case may require”) in light of MCR 6.508(D); and (4) when MCR 6.508(D) bars relief, if a court may then consider evidence and arguments presented at an earlier stage of review.  Justice Markman joined Justice McCormack’s concurrence.  In addition, the bench invited amici briefs from Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan.

The Supreme Court denied Mr. Garrett’s original application for leave to appeal in 1997.  456 Mich. 876 (Sept. 29, 1997).  The trial court later held an evidentiary hearing on Mr. Garrett’s motion for a new trial based on newly discovered alibi evidence (as well as new polygraph and other evidence), and granted a new trial in April 1999.  The Court of Appeals peremptorily reversed that order, but only addressed the alibi evidence issue, on July 28, 1999 (Docket No. 219803).  On leave granted, the Court of Appeals later took up the issue of the complainant’s mental condition, and its effect on her testimony, and whether the verdict was against the great weight of the evidence, but again denied relief.  No. 222304, 2001 WL 1388398 (Nov. 6, 2001).  In 2003, the Supreme Court denied Mr. Garrett’s application for leave again, although Justices Markman, Cavanagh and Kelly would have granted leave.  467 Mich. 936 (Jan. 3, 2003).

In Natural Resources Defense Council v. Department of Environmental Quality, the Court of Appeals upheld the City of Holland’s permit to install new coal-burning equipment in its power plant.  The Court ruled that (1) it had jurisdiction to consider the propriety of the permit on an appeal as of right because the MDEQ’s decision was not a decision of a “court or tribunal” ; (2) any error by the trial court in formulating the standard of review was harmless because it properly determined that the MDEQ’s decision was authorized by law; and (3) the MDEQ’s review of the “best available control technology” for the Holland plant met the requirements of the Clean Air Act, even though it did not employ the EPA-endorsed “topdown” model of review. Read more »

Governor Snyder has exercised his constitutional authority to ask the Michigan Supreme Court to issue an advisory opinion regarding the constitutionality of Michigan’s new right-to-work legislation.  That legislation, set to take effect on March 27, 2013, prevents employers from requiring employees to join a union as a condition of employment.  If the Michigan Supreme Court accepts the request, the Snyder administration will have succeeded in significantly reducing the time it takes to resolve constitutional challenges to the legislation. 

The advisory-opinion request identifies four questions of statewide importance:

1. Whether the right-to-work legislation applying to public employers “interferes with the authority of the Civil Service Commission” and therefore “is not lawfully binding on the classified state civil service”?
2. If the right-to-work legislation is not binding on the classified civil service, does the legislation violate the Michigan and federal constitutional requirements of equal protection of the law because the legislation does not apply to state classified employees but does apply to other employees?
3. Does the legislation violate equal protection of the law because it does not apply to all employees in public or private sector bargaining units?
4. Does the right-to-work legislation applicable to public employers violate the Michigan Constitution’s prohibition on changing the purpose of a law after its original passage by either house of the Michigan legislature? 

Governor Snyder’s request indicates that an advisory opinion is necessary because the State’s collective-bargaining agreements expire on December 31, 2013.  Contract negotiations are likely to start this summer.  Governor Snyder is asking that the Court issue an advisory opinion before negotiations begin so that all parties know whether the right-to-work legislation will apply to all state employees.

The Michigan Supreme Court granted leave to appeal in People v Duncan, limited to the question of whether a “witness was ‘unavailable’ for the purposes of MRE 804(a).”  The Court also vacated as dicta the portions of the opinions below that address “whether the admission of the complainant’s preliminary examination testimony would violate the defendants’ Confrontation Clause rights.”  Lastly, the Court ordered the case to be placed on the April 2013 session calendar.

In Edge v Edge, the Court of Appeals found that the circuit court erred when it granted the plaintiff’s motion for attorney fees and costs incurred during the defendant’s appeal.  The circuit court granted the plaintiff’s motion on the basis that the defendant’s unsuccessful appeal was frivolous and characterized the award as “sanctions.”  However, because no court rule or statute authorized the circuit court to grant fees or costs for a frivolous appeal, the Court of Appeals held that the circuit court had abused its discretion and reversed the award.  The defendant should have sought her fees and costs from the Court of Appeals directly.

Reviewing an appeal from district court to circuit court, the Court of Appeals in People v. Kodlowski affirmed the defendant’s conviction for resisting arrest.  Because the defendant had not previously raised a defense based on unlawful arrest, the majority refused to retroactively apply the holding in People v. Moreno, 814 N.W.2d 624 (Mich. 2012), which permits a person to resist arrest if the arrest is unlawful.  The court also held that the defendant’s statements to police were properly admitted under the Fourth Amendment because, unlike him, his co-occupant had not withdrawn her consent to the officer’s presence in the residence to investigate domestic violence.

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On November 30, 2012, the Michigan Supreme Court dismissed two cases on stipulation of the parties and granted a motion for temporary admission to the practice of law in Michigan.  Additionally, the Court ordered the defendant-appellant in People v. Hardy to show cause why his appeal should not be dismissed for lack of progress where Mr. Hardy has not requested appointed counsel and has not filed his brief on appeal.

The Michigan Supreme Court denied a motion to add an issue in Bailey v. Schaaf, No. 144055.

The Michigan Supreme Court closed one file for failure to pay filing fees.  In Mayor of the City of Cadillac v. Blackburn, No. 146104, the Court, in lieu of granting leave to appeal, reversed the Court of Appeals’ order–which had dismissed the Mayor’s application for leave to appeal for lack of jurisdiction–and directed the Court of Appeals to consider whether to grant the application on its merits.  The Court also stayed the trial-court proceedings pending completion of the appeal.

On October 4, 2012, the Michigan Supreme Court denied eighteen applications for leave to appeal.  The Court also granted leave to appeal in Malpass v. Department of Treasury, No. 144430-2, and Wheeler Estate v. Department of Treasury, No. 145367-70, and ordered that the two cases be argued and submitted together. The Court invited the Taxation Section of the State Bar of Michigan to file a brief amicus curiae.

The Court also ordered oral argument to be held on whether to grant leave to appeal in Lefevers v. State Farm Mutual Auto Insurance Co., No. 144781.  The Court directed the parties to address “whether the tailgate on plaintiff’s dump trailer was ‘equipment permanently mounted on the vehicle’ for purposes of MCL 500.3106(1)(b), and if so, whether plaintiff’s injury was ‘a direct result of physical contact with’ the tailgate” at oral argument.  Justice Marilyn Kelly would have denied leave to appeal.

In lieu of granting an appeal in People v. Gioglio, No. 145091, the Court vacated the maximum sentences imposed by the Kalamazoo Circuit Court and remanded to the trial court for resentencing, because the circuit court did not recognize that application of the enhanced maximum sentence for subsequent convictions is discretionary, not mandatory, under MCL 769.10.

In lieu of granting leave to appeal, the Court reversed the judgment of the Michigan Court of Appeals in Aquilina v. Fifth Third Bank, No. 145210.  The Court adopted Judge Whitbeck’s opinion in the Court of Appeals, in which he concurred in part and dissented in part.  The Court reinstated the order of the Ingham County Circuit Court granting summary disposition to the defendant based on the plain language of the parties’ contract.

 Disclaimer:  Warner Norcross & Judd LLP represents the Appellants who successfully sought leave to appeal in Malpass v. Department of Treasury.