One Court of Justice

On August 26, 2010, the Michigan Supreme Court published its opinion in People v. Szalma, No. 140021.  The Court held that where the trial judge determined that a prosecutor failed to present sufficient evidence to convict the defendant, the double-jeopardy clauses of the United States Constitution and the Michigan Constitution prohibit retrial.

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A search of the defendant’s car after he was arrested and in police custody was unconstitutional under Arizona v. Gant, 129 S. Ct. 1710 (2009), decided on the day of the defendant’s suppression hearing.  In Gant, the Supreme Court ruled that police may search a vehicle incident to an arrest only “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” or when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”  129 S. Ct. at 1719.  In People v. Short, No. 292288 (published Aug. 26, 2010), the Michigan Court of Appeals explained that Gant applied retroactively, and the police search of the defendant’s car was unconstitutional.  But exclusion of evidence is not an automatic remedy for an unlawful search.  The exclusionary rule is designed to deter police misconduct, and therefore, courts have recognized a good-faith exception to the rule.  Addressing this issue of first impression, the Court of Appeals concluded that an officer’s reliance on valid case law which was later overturned may form the basis of an officer’s good faith and avoid exclusion of the disputed evidence at trial.  Because the search was lawful under well-established case law at the time of the arrest, the Court of Appeals upheld the trial court’s application of the good faith exception to the exclusionary rule.

On August 24, 2010, the Court of Appeals published Judge’s Saad’s opinion in People v. Dendel, No. 247391.  The defendant in this case had been convicted of second-degree murder for causing the death of her domestic partner by injecting him with a fatal dose of insulin.  This case had been remanded by the Michigan Supreme Court for examination of Confrontation Clause issues in light of the recent United States Supreme Court decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).  Here, these Confrontation Clause issues related to the testimony of a toxicologist who had testified about the level of glucose found in the alleged victim’s system based upon the findings of forensic toxicology tests he did not perform compiled in a report he did not prepare.  The Court of Appeals concluded that, under the current standards, the report of a zero-glucose level in the body was a testimonial statement, and that the defendant’s constitutional right to confront his accusers was violated where the trial court allowed an expert witness to give hearsay testimony about those glucose levels.  The Court of Appeals, however, found that this was error was harmless beyond a reasonable doubt because of the wealth of other evidence, establishing the cause of death and supporting defendant’s conviction.

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Ronald Rose was convicted of four counts of criminal sexual conduct against an eight-year-old girl and of two counts of disseminating sexually explicit matter to minor (the girl and her ten-year-old brother).  In People v. Rose, No. 290936 (published Aug. 26, 2010), the Court of Appeals rejected his argument that allowing the girl to testify at trial from behind a screen violated the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and a Michigan statute.  This procedure did not violate the Confrontation Clause because the U.S. Supreme Court has held that there is a compelling state interest in protecting child witnesses, and the trial court here made specific findings that the screen was necessary to protect the girl because of her fear of Rose, of her age, and of a therapist’s testimony that there was a high likelihood that the girl would suffer psychological damage if required to testify face to face.  It also did not violate the Michigan statute, MCL § 600.2123a, because that statute does not address witness screens, and courts have inherent authority to control procedures that includes the authority to use witness screens.  The Court of Appeals also concluded (1) that the use of witness screens is not inherently prejudicial (like requiring a defendant to testify in prison garb is), (2) that it was not an abuse of discretion to deny Rose’s motion, filed one day before trial, to exclude the prosecution’s expert witness on child sexual abuse dynamics, and (3) that Rose’s counsel was not ineffective.  Accordingly, the Court of Appeals affirmed Rose’s conviction and sentence of 25 to 50 years in prison.

The Court took substantive peremptory action in two cases, ordered oral argument on the application in two cases, and granted leave to appeal to address a criminal-sentencing issue.  All five cases are discussed below: 

Lawrence M. Clarke, Inc. v. Richco Construction, Inc.:  The Court ordered oral argument on the application.  The Court of Appeals affirmed the trial court’s refusal to set aside a default judgment where the plaintiff obtained leave from the court to effect service by alternate means and the defendants failed to present the necessary affidavits to show a meritorious defense.

In re W Minors:  The Court ordered oral argument on the application.  The Court of Appeals majority affirmed the decision of Michigan Children’s Institute’s superintendent denying consent to adopt and dismissing the adoption petitions filed by the Martins, the W minors’ former foster parents.  Judge Shapiro dissented, concluding that the Martins had been deprived of their ability to adopt the W minors because of an error by the Department of Human Services of Genesee County, and would have remanded the case to the trial court for rehearing. Read more »

On July 15, 2010, the Michigan Supreme Court issued a landmark opinion in Kyser v. Kasson Township, No. 136680, with dramatic economic implications for Michigan’s mining and construction industries.  Justice Markman, joined by Justices Corrigan, Hathaway, and Young, delivered the opinion of the Court, overturning its 1982-decision in Silva v. Ada Township, 416 Mich 153; 330 NW2d 663 (1982).  In Silva, the Court had recognized a long-standing rule that zoning ordinances that prevent mining are unreasonable unless “very serious consequences” would otherwise result.  In Kyser, the majority holds that this rule was not a constitutional requirement and was, in fact, unconstitutional as it violated separation of powers.  Moreover, the Court holds that this rule had been superseded by the exclusionary zoning provision in MCL 125.297a of the Township Zoning Act of 1979, now the Zoning Enabling Act.  Chief Justice Kelly, joined by Justice Cavanagh, dissented.  Justice Weaver recused herself due to her longstanding relationship with Kasson Township’s supervisor.

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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.

On July 14, 2010, the Michigan Supreme Court published Chief Justice Kelly’s majority opinion in Adair v. State, Nos. 137424 & 137453.  In Adair, the Court affirmed Court of Appeals’ opinion in part concluding that the prohibition of unfunded mandates set forth in the Michigan Constitution of 1963, in Article IX, Section 29, the “POUM Clause” or the Headlee Amendment, did not require the plaintiff-school districts to prove specific costs, either through the reallocation of funds or out-of-pocket expenses.  The Court reversed the part of the Court of Appeals opinion denying plaintiffs’ request for attorney fees.  The Court concluded that plaintiffs were entitled to recover the costs incurred in maintaining this suit where they succeeded in their recordkeeping claim, even where 20 of their 21 original claims were dismissed.  The case was remanded to the Court of Appeals for a determination of costs and attorney fees to be awarded to plaintiffs. Read more »

In Packowski v. United Food & Commercial Workers Local 951, No. 282419 (published July 8, 2010), a divided panel of the Court of Appeals held that the federal Labor Management Reporting Disclosure Act, 29 U.S.C. § 401 et seq., preempted a union employee’s claim that the union breached his employment contract by firing him without just cause.  Writing for the majority, Judge Wilder explained that the Act’s purpose was to protect union democracy, which meant that an elected union president could choose employees who would reflect the president’s views and, correspondingly, fire those who did not.  Because the employee here did not dispute that he was a policy-implementing employee, the majority concluded that the Act protected the union official’s authority to fire him.  Accordingly, the majority held that recognizing a state-law cause of action based on the employee’s claim he could be terminated only for cause conflicted with the purpose the Act and was therefore preempted.

In dissent, Judge Beckering reasoned that when a union makes the decision to offer a just-cause employment contract to an employee, that contract can be enforced without violating the Act.  Holding otherwise allows unions to offer just-cause employment contracts even though the just-cause requirement would be unenforceable.  The relevant U.S. Supreme Court precedent, she continued, did not mean that state law could never restrict a union leader’s discretion to terminate an employee.

A trial court may not deny a party the use of a peremptory challenge on the basis of the court’s desire to attain a racially proportionate jury, because the selection of jurors based on race violates the equal-protection guarantees of the federal and state constitutions.  So held the Michigan Supreme Court in Pellegrino v. Ampco System Parking, No. 137111, setting aside a $14.9 million jury verdict and remanding for a new trial.

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The Michigan Supreme Court took substantive action in six cases:

In re P.M. (Department of Human Services v. Mullins), No. 140983:  The Court granted oral argument on the application.

Iron Mountain Information Management, Inc. v. Naftaly, Nos. 140817-140824:  The Court granted leave to appeal limited to the issue of whether the circuit courts have subject-matter jurisdiction over appeals from a decision of the state tax commission regarding property classification.  The Court ordered that the case be argued and submitted with Midland Cogeneration Venture Ltd. v. Naftaly, No. 140814.

Midland Cogeneration Venture Ltd. v. Naftaly, No. 140814:  The Court granted leave to appeal to address the same issue as Iron Mountain.

People v. McCauley, No. 140422:  The Court ordered oral argument on the application to address whether a defendant can raise a challenge to the effective assistance of his counsel during the plea-bargaining process where the defendant rejected the plea offer and subsequently received a fair trial, and if so, what remedies should be available to the defendant.  The Court invited amicus briefs from the Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan.  Our post on the Court of Appeals’ decision conditionally vacating the defendant’s sentence is here.

People v. Breidenbach, No. 140153:  The Court ordered oral argument on the application to address three issues:  (1) whether the Court should reconsider the rule of People v. Helzer, 404 Mich. 410 (1978), that a determination of sexual delinquency is a separate, alternative form of sentencing rather than a penalty enhancement; (2) whether the defendant waived or forfeited the right to a second jury’s determination of his status as a sexual delinquent; and (3) whether any error was harmless or harmless beyond a reasonable doubt.  Again, the Court invited the Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan to submit amicus briefs.  

Friend v. Friend, No. 139165:  In lieu of granting leave to appeal after having heard argument on the application, the Court remanded the case to the Houghton County Circuit Court for clarification as to whether the alimony award was alimony in gross or periodic alimony.  The Court further ordered that as a precondition of the trial court clarifying the nature of its award, the plaintiff purge herself of any outstanding findings of contempt within 90 days.  The Court denied leave to appeal on all other issues, including whether the Court should adopt the fugitive-disentitlement doctrine.  Justices Corrigan, Markman, and Young dissented and would have applied the fugitive-disentitlement doctrine and condition consideration of the appeal on plaintiff’s compliance with trial court’s orders.

The Court also denied leave to appeal in six cases.

On June 22, 2010, the Court of Appeals released Judge Borrello’s opinion in People v. Bryant, No. 280073,involving a claim that a defendant’s Sixth Amendment right to an impartial jury, drawn from a fair cross-section of the community, was violated when his Kent County jury venire of 42 only had one African-American.  This argument had been made previously immediately after the defendant’s conviction, and the Court of Appeals had remanded the matter for an evidentiary hearing.  The trial court conducted such hearings, but found no Sixth Amendment violation and upheld the conviction.  The Court of Appeals disagreed, finding an unintentional computer error systematically caused underrepresentation of African-Americans on jury venires, and reversed and remanded the case for a new trial. 

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In Shepherd Montessori Center Milan v. Ann Arbor Charter Township, the Michigan Supreme Court rejected a religious entity’s equal-protection challenge to the denial of a zoning variance because the religious entity failed to demonstrate disparate treatment of similarly situated entities based on religion.  Accordingly, the Court reversed the decision of the Court of Appeals and reinstated summary disposition in favor of the defendants.  Justice Hathaway wrote the unanimous decision for the Court. Read more »

On June 8, 2010, the Court of Appeals approved for publication its April 20, 2010 per curiam opinion in People v. Likine, No. 290218.  That case arose from the defendant’s failure to pay court-ordered child support.  Initial support payments were under $200/month, but based upon hearings that revealed the defendant’s purchase of a $500,000 home and new car, were raised to over $1,000/month.  Defendant failed to make the adjusted court-ordered payments and was eventually charged with felony failure to pay child support.  The trial court ordered that defendant would not be permitted to raise a defense of inability to pay, because the charge was a strict liability offense.  The defendant was convicted.  On appeal, she argues that the underlying statute was unconstitutional based on precedent that holds that the Legislature cannot impose the duty to perform an act upon a person, which is impossible for that person to perform, and then make such non-performance a crime.  The Court of Appeals found that the precedent did not apply in this case, noting that the defendant had a full opportunity for due process regarding the child-support amount and her ability to pay in the civil context.  In those proceedings, the civil court had determined that she did, in fact, have the ability to perform the ordered support obligations.  Additionally, she argued that the trial court’s decision preventing her from raising the inability-to-pay defense was a due-process violation.  Again, the Court of Appeals disagreed, finding that the right to present a defense is not an absolute right, and that the inability to pay was irrelevant to any fact at issue in the case.  Thus, the Court of Appeals affirmed the conviction.

The Michigan Supreme Court resolved three cases by peremptory orders reversing the Court of Appeals’ decisions and ordered oral argument on the application for two cases in its next term. 

The Michigan Supreme Court reversed the Court of Appeals’ decision in Kachudas v. Invaders Self Auto Wash, No. 139794.  In Kachudas, the plaintiff slipped and fell at an auto wash on a winter day and sued the company that operated the facility.  The Court of Appeals concluded that the open-and-obvious defense was not available to the defendant because the plaintiff’s claims sounded in general liability and not premises liability.  Four justices of the Michigan Supreme Court disagreed, explaining that the plaintiff alleged injury because of a condition of the land and thus the plaintiff’s claims were for premises liability.  The Court further found that a person of average intelligence would anticipate that spraying water on a day with average temperatures between 11 and 24 degrees would likely lead to the formation of ice.  Accordingly, the Court also concluded that the danger was open and obvious.  The Court peremptorily reversed the Court of Appeals’ decision, and reinstated the trial court’s grant of summary disposition to the defendant.  Chief Justice Kelly and Justices Cavanagh and Hathaway dissented.

The Court apparently decided to revisit the open-and-obvious doctine by ordering oral argument on the application in Ahola v. Genessee Christian School, No. 140447.  The Court of Appeals, in a divided opinion, concluded that faults to the defendant school’s steps that caused the plaintiff’s injury were not open and obvious despite the plaintiff’s navigation of those steps several hours earlier because the steps were unlit at the time of the injury.  Read more »

After Lamar Evans was seen running away from a burning house while carrying a gasoline can, he was apprehended and charged with an arson offense.  The State charged him with the crime of “burning other real property,” but not with the crime of “burning a dwelling.”  (“Burning other real property” is a lesser-included offense for “burning a dwelling,” but Evans was charged only with the lesser crime.)  At his trial, Evans argued that the prosecution failed to prove an element of the crime, contending that to prove the “burning other real property” offense, the prosecution would need to prove that the burned building was not a dwelling.  The trial court agreed and directed the verdict in Evans’ favor, dismissing the case.  In People v. Evans, No. 290833, the Court of Appeals reversed and remanded for a new trial.  Judge O’Connell, writing for the Court, explained that the fact that the building was not a dwelling is not an element of the crime, and thus the prosecution’s failure to prove that non-element was irrelevant.  In fact, the standard jury instruction that Evans relied on contained a use note explaining that the prosecution needs to prove the building was not a dwelling only when a defendant is charged with “burning other real property” as a lesser-included offense to “burning a dwelling.”  Thus when a defendant is charged with “burning other real property” as a stand-alone offense, the prosecution need not prove the building was not a dwelling.  The Court also rejected Evans’ argument that granting the State a second trial would violate the Double Jeopardy Clause.  No double-jeopardy violation arose, the Court explained, because the only finding the trial court made was that the prosecution presented no evidence tending to show the building was not a dwelling, and that finding did not relate to an actual element of the crime, so no factual findings were made as to any real element of the crime.

On May 11, 2010, the Court of Appeals published its opinion in People v. Baker, No. 286769.  Through an opinion authored by Judge O’Connell, the Court of Appeals ordered that one of the defendant’s two home invasion convictions be vacated.  It was undisputed that the two separate convictions were based on a single, continuous home invasion.  The defendant argued that these multiple convictions violated constitutional protections against double jeopardy.  The prosecution argued that, because the defendant both intended/committed a sexual assault during the home invasion, and intended/committed larceny during the home invasion, the separate home invasion counts involved different essential elements and supported two separate convictions.  The Court of Appeals disagreed, finding that the essential element was the same: intent to commit, or commission of a felony.  The Court characterized the prosecution’s case as two different theories to establish that single necessary element.  However, two different theories did not support two separate convictions.  Therefore, the Court of Appeals ordered that one of the home invasion convictions be vacated.

Despite the extensive fanfare surrounding the Michigan Supreme Court’s decision to hear Duncan v. Michigan, No. 139345, the Court remanded the case involving constitutional challenges to the State’s court-appointed defense counsel program on procedural grounds.  In Duncan, the government moved to dismiss the plaintiff’s constitutional challenges to the funding and administration of the court-appointed defense counsel programs in Berrien, Genesee, and Muskegon Counties on governmental immunity and other grounds.  The plaintiffs moved for class certification.  The Ingham County Circuit Court denied the government’s motion for summary disposition on the pleadings and granted the motion for class certification.  The Court of Appeals affirmed the trial court’s decision in a lengthy decision.  The Michigan Supreme Court granted leave to appeal, but after oral argument, the Court vacated the trial court’s order granting class certification and remanded the matter to the Ingham Circuit Court for consideration of the motion in light of Henry v. Dow Chemical Co., 484 Mich. 483 (2009).  The Court further affirmed denial of the government’s motion for summary disposition, albeit for different reasons.  Citing the fact that the case is still at the pleadings stage, the Court concluded that the motion for summary disposition was premature.  The Court’s order deprives the Court of Appeals’ decision of precedential and law-of-the-case effect, preserving the government’s arguments for summary disposition after discovery.

On April 13, 2010, the Court of Appeals published its unanimous opinion, authored by Justice Zahra, in People v. Mungo, No. 269250.  In this case, the Court of Appeals considered the application of the recent United States Supreme Court opinion in Arizona v. Gant.  In 2008, the Court of Appeals had reversed the trial court order to exclude certain evidence obtained in a vehicle search.  While this matter was on appeal to the Michigan Supreme Court, the United States Supreme Court refined the standards for the search of a vehicle incident to arrest in Gant.  The Michigan Supreme Court remanded the matter to the Court of Appeals for reconsideration in light of Gant.  In Gant, the United States Supreme Court held that a vehicle search incident to arrest is only constitutional if the arrestee is within reaching distance of the passenger compartment at the time of the search, or if it is reasonable to believe that the vehicle contains evidence of the offense that led to the arrest.  Here, the arrestee/passenger was detained in a police vehicle at the time of the search, and the driver was outside of reaching distance of the passenger compartment.  Thus, the Court of Appeals concluded that the search was illegal under Gant.  Further, the Court of Appeals found that the “good faith” exception to the exclusionary rule did not apply because at the time of the search, Michigan law on the scope of a search incident to arrest was unsettled, and thus the search could not have been premised on good-faith reliance on case law.  Based on these findings, the Court of Appeals affirmed the exclusion of the evidence discovered in the vehicle search.

On March 30, 2010, the Supreme Court issued an opinion in People v. Wilder, No. 137562, holding that the crime of third-degree home invasion under MCL § 750.110a(4)(a) is a necessarily included lesser offense of first-degree home invasion under MCL § 750.110a(2) where all the elements required to convict the defendant for third-degree home invasion based on the misdemeanor of larceny were subsumed within the elements required to convict him of first-degree home invasion based on larceny. In an opinion by Justice Hathaway, joined by Justices Weaver, Corrigan, Young, and Markman, the Court reversed the Court of Appeals and reinstated the defendant’s conviction and sentence for third-degree home invasion. Justices Corrigan and Cavanagh each wrote separate opinions concurring in the result but highlighting their respective disagreements with the majority’s interpretation of the statute. A copy of the Court’s opinion can be found here. Read more »