One Court of Justice

Petitioner’s second application for Medicaid benefits was denied because petitioner, a 93-year-old, had too much money in her bank account to qualify.  In Michigan, to be eligible for Medicaid long-term care benefits, an individual must have $2,000 or less in countable assets.  Shortly after the second denial, petitioner received approximately $100,000 from her husband’s death.  Before submitting her third application for Medicaid benefits, petitioner’s daughter and attorney-in-fact formed an L.L.C., which petitioner admitted was formed for the sole purpose of making her eligible for Medicaid benefits (while arguing that intent was not relevant).  Petitioner’s daughter assigned, in her own name, 100 investment (non-voting) units of the L.L.C., and all 100 voting units.  Petitioner was assigned 111,460 investment units for which she paid the L.L.C. $111,460.  The same day, petitioner’s daughter, as the sole voting member of the L.L.C., acted to disallow any transfer of investment units within a two-year holding period, during which petitioner could not sell, transfer, or liquidate her units.  After two years from the date of investment, the L.L.C.’s operating agreement would allow the sale of the units and guaranteed compounding two percent interest from the date of purchase to the date of sale on the amount paid for them.  During the two-year period, petitioner would not receive any distributions from the L.L.C.      

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In an extraordinary development, the Michigan Supreme Court dismissed the putative class action brought by indigent criminal defendants against the State’s public defender system.  In May, the Court issued a unanimous order holding that a decision on the defendants’ motion for summary disposition was premature.  On defendants’ motion for reconsideration, the Court adopted the dissent from the Court of Appeals and concluded that the plaintiffs’ claims are not justiciable. Chief Justice Kelly and Justices Cavanagh and Hathaway dissented. Read more »

The Michigan Supreme Court denied leave to appeal in Rockford v. 63rd District Court, No. 140541.  The City of Rockford had challenged Kent County’s plan to have both of the 63rd District’s judges sit in a single location.  The trial court and the Court of Appeals had both rejected Rockford’s challenge concluding that the County was free to require the judges to sit in the same location.  Our earlier post on the Court of Appeals’ decision is here.  Justice Weaver would have granted leave to appeal.

In order to widen a portion of M-24 in Lapeer County, the Michigan Department of Transportation exercised eminent domain over a parcel owned by the Gillings, where the Gillings ran their nursery and landscaping business.  Because the Gillings did not challenge the necessity of the condemnation or that it was for a public use, the primary issue was the amount of just compensation under the Michigan Constitution and under state statutes.  In particular, the Gillings claimed compensation not just for the value of the property, but also for expenses involving the interruption of their business (including moving their nursery first to an interim location and then moving it again to a permanent site) and for moving what they considered to be trade fixtures (the bushes and trees from the nursery).  MDOT argued that the moving expenses were essentially a claim for lost profits, which are not compensable,  that the trees and bushes were not trade fixtures, and that Michigan’s administrative recovery statutes supplant a right to recover under the Michigan Constitution.

In MDOT v. Gilling, No. 285369 (published July 15, 2010), the Court of Appeals held that the Gillings’ constitutional right to just compensation entitled them to compensation for the actual moving and relocation expenses resulting from the interruption of their business.  Judge Saad, writing for the Court, explained that a string of four Michigan Supreme Court decisions compelled this outcome.  Turning to the trade-fixture argument, the Court concluded that the trees and bushes were the products of the nursery, not special equipment (like water pumps or flower display racks) that might be consider constructively annexed onto the property and whose removal would impair the value of the fixture or the property.  Finally, the Court rejected MDOT’s contention that the administrative recovery statutes precluded the Gillings from pursuing a constitutional claim:  ”[N]o act of the Legislature can take away what the Constitution has given.”  But the Court did conclude that the trial court abused its discretion by excluding an expert witness for MDOT who would have testified that the permanent location was available at the outset and that the Gillings therefore had no need for the Gillings to move twice, by moving first to an interim location.  This testimony went to the central issue of the case—whether the Gillings expenses resulted from the taking—and therefore should have been admitted.  Accordingly, the Court remanded for a new trial to include expert testimony on that issue.

John Crnkovich died from blunt force trauma to his neck and head after colliding with an anchor and guy wire when riding his motor scooter at a high speed down a sidewalk at night without safety gear and while under the influence of alcohol and marijuana.  A guy wire is a steel cable that runs from a telephone pole to an anchor in the ground.  The City of Royal Oak paved the sidewalk through the anchor and under the guy wire during a sidewalk improvement project, instead of having the anchor and guy wire relocated by the utilities company or leaving a substantial distance around the guy wire unpaved as suggested by the contractor.  The personal representative of Crnkovich’s estate sued the City of Royal Oak, the City Engineer, and an engineering assistant, as well as the utilities company and contractor.  The trial court denied the motions for summary disposition based on governmental immunity filed by the City, City Engineer, and engineering assistant. In the consolidated appeals of Lameau v City of Royal Oak, Nos. 290059 and 292006 (the published opinion shows a picture of the sidewalk at issue), the Court of Appeals affirmed in a 2-1 decision. Read more »

On June 17, 2009, the Michigan Court of Appeals released its published opinion in Janer v. Barnes, No. 298401.  In April 2010, the plaintiffs and the defendant filed timely petitions to appear on the primary-election ballot for the position of 74^th District Court Judge.  The position was a non-incumbent position because the judge had announced his resignation.  On April 23, 2010, Governor Granholm appointed the defendant to the position.  The plaintiffs filed a complaint seeking to prevent the defendant from receiving the incumbency designation on the ballot, arguing that because the defendant was appointed after the petitions were filed and deadlines had passed the defendant was not entitled to the incumbency designation.  The trial denied the requested relief.  The Court of Appeals affirmed.  The Court noted that the Michigan Constitution, Const. 1963, art. 6, § 24, and MCL § 168.467c(2) both mandate the identification of the incumbent judge on the ballot.  These provisions do not impose other requirements.  As such, the defendant was entitled to the incumbency designation.

Salt hurts blueberry bushes.  Based on this fact, a number of blueberry farms sued the Michigan Department of Transportation (MDOT), arguing that road salt that sprayed from highways and county roads onto their blueberry bushes, which were located on properties adjacent to those roads, hurt their blueberry production.  The blueberry farms alleged that the State had committed trespass nuisance, which is “a trespass or interference with the use of or enjoyment of land by way of a physical intrusion that the government sets in motion and that results in personal or property damage.”  In Blue Harvest, Inc. v. Department of Transportation, No. 281595 (published Apr. 29, 2010), the Court of Appeals held that sovereign immunity precluded the suit against MDOT because the state had not waived its sovereign immunity.  No statutory exception applied, so the Court turned to the harder question of determining whether the common law governing sovereign immunity as it existed before July 1, 1965 (when MCL § 691.1407 was enacted to reinstate sovereign immunity after it was temporarily abolished) provided an exception for trespass nuisance.  Concluding that it did not, the Court reversed the trial court’s denial of MDOT’s motion for summary disposition based on sovereign immunity.  Turning to a second issue, the Court affirmed the trial court’s dismissal of the blueberry farms’ claims for inverse condemnation, because the injury they suffered was not peculiar or unique, but rather was the same kind (though worse in degree) of injury that all properties adjacent to the roads suffered.  The majority opinion by Judge Meter is available here, and the concurring opinion by Judge Beckering, who analyzed the common-law history in greater detail, is available here.

On March 9, 2010, the Court of Appeals issued a per curiam opinion in Dextrom v. Wexford County, No. 281020.  Plaintiff property owners sued the county, alleging that contaminants from the county-operated landfill entered their groundwater.  The Court of Appeals determined that the trial court correctly concluded that, contrary to certain plaintiffs’ contention, a landfill that violates state licensing and environmental laws does not constitute an ultra vires activity.

Defendants asserted a governmental immunity defense.  Generally, the defendants’ operation of a landfill constitutes a governmental function, and is protected by governmental immunity.  There are, however, exceptions to governmental immunity, including the proprietary function exception.  An activity is deemed a proprietary function if (1) the activity is conducted primarily for the purpose of gaining a pecuniary profit, and (2) the activity cannot normally be supported by taxes or fees.  To determine whether an agency’s primary purpose is to produce a pecuniary profit, courts must consider “whether a profit is generated,” and then “where the profit generated by the activity is deposited and how it is spent.” 

The Court of Appeals affirmed the trial court’s denial of summary disposition.  However, the Court of Appeals also remanded the case to the trial court to hold an evidentiary hearing to determine the threshold question of law of whether the defendants’ operation of the landfill was subject to the proprietary function exception to governmental immunity.

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 7, 2009, the Michigan Court of Appeals released its published opinion in Ward v. Michigan State University. The Court held that governmental immunity protected Michigan State University (“MSU”) from the suit,  specifically holding (1) the notice requirements of MCL § 691.1406, the public-building exception to governmental immunity, must be strictly followed, and (2) university athletics are not proprietary functions, such that the university loses its governmental immunity. The Court’s opinion may be found here.

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On January 5, 2010, the Michigan Court of Appeals published a split opinion in Nuculovic v. Hill, No. 280216, affirming the lower court’s dismissal of a plaintiff’s personal-injury claims against a SMART Bus driver and SMART Bus, Inc., for failure to satisfy the 60-day notice requirements in the Metropolitan Transportation Authorities Act of 1967, MCL § 124.401 et seq.  SMART Bus’s receipt of a police report and reports from Hill and his supervisor were insufficient, as they were not served in accordance with the formal requirements of the court rules and did not notify SMART Bus that plaintiff intended to file a claim or the nature of plaintiff’s claim.  Judge Borello, in a partial concurrence and partial dissent, disagreed with this particular holding, arguing that it imposed requirements not found in the statute and improperly construed the limitation strictly against citizens, rather than the government, making it impossible for an average citizen to comply.  The dissenting opinion can be found here.  The majority’s other holdings are discussed below. Read more »

On January 5, 2010, the Court of Appeals published its opinion in Attorney General v. PowerPick Players’ Club of Michigan, LLC, No. 283858.  The Court of Appeals reversed the trial court’s denial of the State’s motion for summary disposition, and remanded the action for entry of judgment finding that PowerPick’s business of selling shares in pools of Michigan lottery tickets violated various anti-gambling statutes and was enjoinable as a public nuisance.  The Court of Appeals found that the facts of PowerPick’s operations were not in dispute, and the only question was whether those operations violated Michigan law.  Specifically, the Court of Appeals found that PowerPick’s operations, where only 51% of the customers’ money is used to buy lottery tickets and each customer is placed in a computer-generated pool of lottery tickets, involved the placement of illegal bets.  The Court of Appeals concluded that the customers were placing a bet on the chance that PowerPick’s computer would assign them to a winning pool of lottery tickets.   Additionally, the Court of Appeals found that PowerPick was illegally reselling lottery tickets at a price greater than that fixed by the Lottery Commissioner because it accepts payment in excess of the costs of the tickets.  PowerPick also offered its customers random drawings of Michigan Lottery scratch-off tickets, and “bonus” entry into other ticket pools.  The Court of Appeals concluded that these practices constituted an illegal lottery because they were designed to induce people to become or remain customers, and thus there was sufficient consideration provided in exchange for the tickets.   Thus, according to the Court of Appeals, PowerPick’s operations and office constitute an enjoinable public nuisance.  Judge Hoekstra filed a partial dissent, disagreeing with the Court’s conclusion that customers were buying the chance of being assigned to a winning pool.  He argued that there was a question of fact as to whether the excess over the ticket price charged to customers reflected PowerPick’s business expenses/profits, or whether it is a “bet.”  Also, Judge Hoekstra, while agreeing that the operations violated the other anti-gambling statutes cited by the majority, indicated that he would remand the case for consideration of whether such violations constitute a public nuisance.

On Friday, November 13, 2009, the Michigan Supreme Court took substantive action in the following cases:

• Coblenz v. City of Novi:  The Court peremptorily reversed in part the Court of Appeals’ decision affirming the trial court’s award of case evaluation sanctions in this long-running FOIA dispute.  The trial court did not apply the analysis required by Smith v. Khouri, 481 Mich. 519, 751 N.W.2d 472 (2008), to determine whether the attorney fees requested by the plaintiff were reasonable.  Instead, the trial court relied on a number of factors not found in FOIA or Smith v. Khouri.  Accordingly, the Michigan Supreme Court remanded the case to the trial court for additional proceedings consistent with Smith v. Khouri.  The Court’ s decision is here.
• People v. Mills:  The Court remanded the case to the Court of Appeals for consideration as a direct appeal because of ineffective assistance of the defendant’s appellate counsel.  The defendant’s appellate attorney failed to make a timely appeal thus depriving the defendant of a judicial proceeding (i.e., appeal to the Court of Appeals).  The Court’s order is here.
• People v. Gusman:  The Court remanded this case to the Court of Appeals as on leave granted to consider both applications for leave to appeal filed by the defendant.  The Court’s order is here.

The Court also denied leave to appeal in two cases including a second appeal in Coblenz v. City of Novi.

On November 3, 2009, the Court of Appeals published its opinion in Plunkett v. Michigan Department of Transportation, No. 284320.  In this case, the trial court had rejected MDOT’s motion for summary disposition in a wrongful death case arising out of alleged highway defects.  MDOT had argued that it was entitled to summary disposition because Plaintiff’s statutorily required pre-suit notice was not specific enough and because, under the facts of the case, MDOT was entitled to governmental immunity.  The Court of Appeals agreed with the trial court’s conclusion that the pre-suit notice in this case was sufficient where such notice must merely “reasonably apprise” MDOT of a claim, rejecting MDOT’s contention that such notice must include a strictly accurate description of the allegedly defective road condition.  The Court of Appeals, however, determined that MDOT was entitled to summary disposition pursuant to its governmental immunity defense because the alleged accident was caused by the vehicle hydroplaning on water on the road, not by a persistent defect in the road of which MDOT had or should have had notice.  Read more »

On September 29, 2009, the Court of Appeals issued its unanimous opinion in Renny v. MDOT, No. 285039, affirming the trial court’s grant of summary disposition to defendant Michigan Department of Transportation (MDOT).  In this personal injury lawsuit, plaintiff sued MDOT for injuries she sustained when she slipped and fell on a patch of snow and ice in front of the entranceway of a state rest area building.  Plaintiff alleged that the lack of gutters and downspouts in the building, as well as other defects, allowed for the accumulation of snow and ice on the sidewalks in front of the entranceway, thereby creating hazardous conditions for the public.  Plaintiff also alleged that MDOT failed to repair and maintain the building, which was previously equipped with some form of downspouts system.   

On remand from the Michigan Supreme Court, Renny v. MDOT, 478 Mich. 490, 734 N.W.2d 518 (2007) (Renny II), the trial court determined that plaintiff’s injuries resulted from a design defect in the building rather than a failure to maintain the building.  In Renny II, the Michigan Supreme Court held that design defects do not fall within MCL § 691.1406, the public building exception to governmental immunity.  Adhering to Renny II, the Court of Appeals emphasized that injuries resulting from a design defect of a government building, instead of a failure to maintain or repair, fail to satisfy a necessary element to avoid governmental immunity under the public building exception.  Accordingly, the Court of Appeals concluded that summary disposition was proper. 

This case is a likely candidate for Michigan Supreme Court review because it presents an important question of statutory interpretation that the current Court may view differently than it did in 2007, when Renny II was decided.

On September 22, 2009, the Court of Appeals reversed the decision of the Wayne County Circuit Court, holding that the Circuit Court should have granted a stipulated order of mandamus ordering the Detroit city clerk to place on the November 2009 general election ballot a proposal regarding the composition of the Detroit City Council.  Specifically, the Court of Appeals directed the Detroit city clerk to place on the ballot the following question:  “Shall the Detroit City Charter be amended to provide for a total of nine members of City Council with one (1) council member, with district residency, elected from each of seven (7) districts and two (2) members elected at large[?]” Read more »

On September 22, 2009, the Court of Appeals issued its opinion in Charter Township of Meridian v. Ingham County Clerk, No. 279459 affirming summary disposition in favor of East Lansing’s annexation of a portion of Meridian Township.  The Township challenged the annexation referendum (which passed in the November 2006 election) on the grounds that it only allowed those qualified electors from the small portion of the Township to be annexed to vote, as opposed to the entire Township.  Both the trial court and the Court of Appeals rejected this challenge, finding no violation of voting rights or equal protection guarantees. Read more »

On Friday, September 18, 2009, the Court denied leave to appeal in two cases, denied a prisoner’s motion to waive fees, denied reconsideration of In re McBride Minors (Corrigan, J. and Kelly, C.J. dissenting) and ordered supplemental briefing on the issue of whether the government tort liability act applies to claims against a former tribal chairperson in Sault St. Marie Tribe of Chippewa Indians v. Bouschor (application for leave pending), and entered remand orders in the following cases:

• People v. Elanani:  The Court vacated the decision of the Court of Appeals because the Court concluded that the trial court erred in scoring the defendant’s offense and erroneously departed from the guideline range.   The Court remanded the case to the circuit court for re-sentencing.   Justice Weaver dissented and would have denied leave to appeal.
• People v. Wiggins:  The Court, in lieu of granting leave to appeal, remanded the case to the Court of Appeals for consideration, as on leave granted, whether the circuit court the defendant’s offense was properly scored.  Justice Weaver again dissented, and Justice Markman concurred to dispute Justice Weaver.

On Friday, September 11, 2009, the Michigan Supreme Court peremptorily reversed the Court of Appeals’ decision in Oneida Charter Township v. City of Grand Ledge.  In Oneida, the City of Grand Ledge and the Oneida Charter Township entered into a long-term contract by which the City of Grand Ledge provided water service to some of the residents of the township and charged those residents twice the rate it charged City of Grand Ledge residents.  Nearly 25 years later, the township sued claiming that under MCL § 123.141, the City of Grand Ledge cannot charge township residents more than the city’s actual cost of providing the water.  The township advanced the argument that the statute, read as a whole, prohibits the City of Grand Ledge from charging township residents more than its actual cost.  Grand Ledge responded that the statute explicitly excludes municipalities, like Grand Ledge, that serve less than 1% of the State’s population, and that the actual cost requirement applies only to water department customers, not suppliers.  The Eaton County Circuit Court agreed with Grand Ledge and dismissed the township’s case with prejudice.  The Court of Appeals reversed and adopted the township’s reasoning.  The Michigan Supreme Court reinstated the circuit court’s ruling, and explained that the actual-cost requirement in MCL § 123.141 does not apply to the City of Grand Ledge.  Our previous summary of the Court of Appeals’ decision is here.

Disclaimer:  WNJ represented the prevailing petitioner, City of Grand Ledge, in the Michigan Supreme Court.