One Court of Justice

On August 24, 2010, the Court of Appeals published its per curiam opinion in Findley v. DaimlerChrysler Corp., No. 291402.  The case arose from an appeal from the Workers’ Compensation Appellate Commission (“WCAC”) which had affirmed a magistrate’s denial of benefits.  In affirming that decision, one commissioner issued an opinion that analyzed and adopted the magistrate’s findings.  Another member concurred “in result only” and provided no explanation, while the last member of the three-commissioner panel dissented.  The Court of Appeals held that it can only review the decisions of a “true majority” of a WCAC panel, and that this did not constitute a true majority.  The Court concluded that a “true majority” is an opinion in which a majority of the commissioners agree on the material facts and ultimate outcome.  Here, it is not clear that a majority of the commissioners agree on the facts because the second member of the majority only concurred in the result.  Therefore, the Court of Appeals remanded the matter to the WCAC for further proceedings.

On Wednesday, June 30, 2010, the Michigan Supreme Court issued one order appointing the State Appellate Defender Office to represent the defendant in People v. Lewis, Case No. 140704.  The Court also corrected a clerical error in the June 18, 2010 order in Anglers of the AuSable, Inc. v. DEQ, Case Nos. 138863-138866, by adding that Justice Hathaway joined in the concurring statement of Justice Cavanagh.

On June 11, 2010, the Michigan Supreme Court denied seven applications for leave and two motions for reconsideration.  The Court ordered oral argument on whether the court should grant leave to appeal in People v. Brandt, No. 140744, requesting the parties to brief “whether points for abuse of authority status against a vulnerable victim may be assessed for Offense Variable 10, MCL 777.40(3)(c) and (d), where the defendant was a financial officer for a credit union and embezzled funds from that financial institution.”  The Court also ordered oral argument on whether to grant leave in Campbell v. Department of Human Services, No. 140319.  Lastly, in People v. Gatiss, No. 139628, the Court vacated the trial court order in lieu of granting leave, directing the trial court to reconsider the defendant’s motion for relief from judgment.  The Court noted that on remand the trial court must specify the reasons for its decision and identify which portions of the defendant’s pleadings were stricken as immaterial, impertinent, or scandalous.

On May 20, 2010, the Michigan Supreme Court closed Taylor v. Department of Corrections, No. 140595, for failure to pay the filing fee.

On Wednesday, May 5, 2010, the Michigan Supreme Court issued an order in the case of Michigan Department of Transportation v. Detroit International Bridge Co. and Safeco Insurance Co. of America, Case Nos. 140991, 140927, and 140928, staying the enforcement of the February 1, 2010 order of the Wayne County Circuit Court and staying further proceedings in that court.   The Detroit International Bridge Company’s application for leave to appeal the March 17, 2010 Court of Appeals order remains pending.  A copy of the Court’s order is here.

In an opinion with consequences for both civil and criminal practitioners, the Michigan Supreme Court granted leave to appeal and reversed the Court of Appeals’ judgment in People v. Richmond, No. 136648.  The Court concluded that the prosecutor’s voluntary dismissal of criminal charges without prejudice rendered the prosecutor’s appeal of an earlier (erroneous) evidentiary ruling moot.  The 4-3 decision commanded an unusual majority of Chief Justice Kelly and Justices Cavanagh, Markman, and Hathaway.  Justice Cavanagh authored the opinion for the majority.  The opinion suggests a new basis for the Michigan Court of Appeals to reject claims of appeal by right from civil cases where the parties reached an agreement to dismiss claims without prejudice to permit appeal of a significant interlocutory order.

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On April 27, 2009, the Court of Appeals published its opinion in King v. McPherson Hospital, No. 284436.  In this case, the Court was presented with a medical-malpractice action involving the application of the relevant statute of limitations.   Here, the trial court initially rejected defendant’s motion to dismiss, but the Court of Appeals reversed finding that the plaintiff’s complaint was untimely according to the then-existing precedent.  The case was ultimately remanded, and the trial court granted the defense motion for entry of an order of dismissal based on the Court of Appeals’ decision.  Later, the Michigan Supreme Court decided another case involving the application of similar statute-of-limitations issues.  The plaintiff filed a motion to set aside the dismissal order based on a change in the law.   The defense disagreed that the relevant legal precedent had been reversed, and also argued that the law-of-the-case doctrine required the Court to uphold the dismissal that had been ordered by the Court of Appeals.  The trial court agreed with the defendants and denied the motion pursuant to the law of the case.  Plaintiff filed an application for leave to appeal to the Court of Appeals, which was denied.  But the Supreme Court remanded the case to Court of Appeals for consideration as on leave granted.  Now, the Court of Appeals noted that the recent Court of Appeals opinion in Farley v. Carp was directly on point, and required this panel of the Court of Appeals to affirm the trial court’s decision to uphold the earlier directive from the Court of Appeals to dismiss the case.  Our prior post on the Farley decision can be found here.  This panel, however, disagreed with the result in Farley and called “for the convening of a special panel of this Court pursuant to MCR 7.215(J)(3).”

On January 28, 2009, the Court denied motions field by the Fieger law firm to disqualify Justices Corrigan, Markman, and Young from participating in Pellegrino v. Ampco Systems Parking, Case No. 137111, based on statements they made about Fieger during election campaigns a decade ago.  Our post on the January 28, 2009 decision in Pellegrino can be found here. Read more »

On Tuesday, March 30, 2010, the Michigan Supreme Court denied the prisoner-appellant’s motion to waive filing fees in Hill v. Parole Board, Case No. 140749, for the reason that under MCL § 600.2963, a prisoner pursuing a civil action is liable for filing fees.  However, the Court authorized a payment plan.  A copy of the Court’s order can be found here.

On March 18, 2010, the Michigan Supreme Court granted two motions for an extension of time for filing a brief, and four motions for leave to file amicus curiae briefs.  The Court granted the Michigan Manufacturer’s Association and the National Wildlife Federation leave to file amicus curiae briefs in Lansing Schools Education Association v. Lansing Board of Education, No. 138401; the Michigan Municipal League and others leave to file amicus curiae briefs in Gadigian v. City of Taylor, No. 138323; and the Michigan Association for Justice leave to file an amicus curiae brief in University of Michigan Regents v. Titan Insurance Co., No. 136905.  The Court denied one motion to adjourn oral argument, and the Prosecuting Attorneys Association of Michigan’s motion to participate in oral argument in People v. Mardlin, No. 139146.  The Court also closed Hall v. Department of Corrections, No. 140273, for failure to pay the partial filing fee.

On Wednesday March 17, 2010, the Michigan Supreme Court denied the plaintiff-appellant’s motion to waive filing fees in Lightningbolt v. Department of Corrections, No. 140665, pursuant to MCL § 600.2963, and administratively closed the case of Arrington v. Department of Corrections, No. 140480, for failure of the plaintiff-appellant to pay the partial filing fee.

On Friday, March 12, 2010, the Michigan Supreme Court ordered oral argument on the application in three criminal cases, dismissed two cases on the stipulation of the parties, resolved one case argued earlier this term (addressed in a separate post), sought additional information from the Judicial Tenure Commission (addressed in a separate post), and accepted a question certified by the United States District Court for the Eastern District of Michigan.

In Waeschle v. Oakland County Medical Examiner, No. 140263, the Court agreed to resolve the question of whether a decedent’s next-of-kin has a property interest in the decedent’s brain which is removed from a corpse during an autopsy.  This unusual question arises from a putative class action pending in the United States District Court for the Eastern District of Michigan against the Oakland County Medical Examiner and a putative defendant class of all Michigan counties.  The Eastern District initially resolved the question in favor of the plaintiff.  On appeal, the Sixth Circuit reversed and ordered the Eastern District to certify the question to the Michigan Supreme Court.  The Michigan Supreme Court granted leave to address the question over the dissents of Justices Weaver and Young who question whether the Court has the constitutional authority to address certified questions.

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On Wednesday February 17, 2010, the Michigan Supreme Court denied one motion by a prisoner seeking a waiver of filing fees and administratively closed the case of Howard v. Department of Corrections, Case No. 139966, for failure of the plaintiff-appellant to pay the partial filing fee. 

Additionally, in lieu of granting leave to appeal the Court vacated the judgment of the Court of Appeals and remanded the case of Griesbach v. Ross, Case No. 136731, to the Oakland County Circuit Court for reconsideration in light of the Court’s decisions in Bush v. Shabahang, 484 Mich. 156 (2009) and Potter v. McLeary, 484 Mich. 397 (2009).  Our post on Bush can be found here and our summary of Potter is here.  Justice Young dissented arguing that the plaintiff does not meet the requirements of MCL § 600.2912b(3), and therefore is not entitled to the additional notice period provided by that statute, and that both Bush and Potter are inapplicable to this case.  The Court’s Order can be found here.

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.

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.

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 »

The United States Supreme Court today denied Michigan’s request for an order directing that emergency measures be taken to stop the migration of Asian Carp into Lake Michigan from Illinois waterways.  The Court did not rule on Michigan’s request to reopen a decades-old decree to address the migration issue on the merits.

On Wednesday, January 13, 2010, the Michigan Supreme Court dismissed the defendant-appellant’s application for leave to appeal in the matter of People v. Watson, Case Nos. 139624 & 139625, on stipulation of the parties, and granted motions in five cases seeking an extension of time for filing briefs. 

The Court also granted motions for leave to file briefs amicus curiae in two cases.  In Brewer v. A.D. Transportation Express, Inc., Case No. 139068, the Court granted the Michigan Association for Justice’s request to file a brief amicus curiae.  In McCormick v. Carrier, Case No. 136738, the Court granted motions to file briefs amicus curiae that had been filed by the Coalition Protecting Auto No-Fault, the Insurance Institute of Michigan, the Michigan Association for Justice, and the Negligence Section of the State Bar of Michigan.