One Court of Justice

Michigan’s Public Act 53, enacted in 2012, prohibits public-school employers from providing payroll deductions to collect union membership dues from public-school employees.  Plaintiffs, a number of unions and union members, challenged the Act facially, alleging that it violates their federal constitutional rights.  In Bailey v. Callaghan, the Sixth Circuit, in a published 2-1 opinion, held that plaintiffs have no chance of success on their claims under the First Amendment and Equal Protection Clause, and reversed the district court’s preliminary injunction barring enforcement of Public Act 53.  The majority determined that plaintiffs’ First Amendment claim fails because the Act does not restrict speech and does not discriminate based upon viewpoint.  Applying a rational-basis review, the majority concluded that plaintiffs’ equal-protection claim also fails because it determined that there is a conceivable legitimate governmental interest in support of the classification barring public-school employers, but not other public employers, from using their resources to collect union dues.

The dissent concluded that plaintiffs’ First Amendment claim is likely to succeed because though Public Act 53 is viewpoint-neutral on its face, it is viewpoint-discriminatory in fact.  Examining the neutral justifications for Act 53 offered by the State of Michigan – saving money, promoting union accountability, and providing a “check on union power” – the dissent determined that Act 53 is impermissibly motivated by Michigan’s desire to suppress the school unions’ viewpoint.

In Elba Township v. Gratiot County Drain Commissioner, the Michigan Supreme Court held that the lower courts improperly exercised equitable jurisdiction over a challenge to the drain commissioner’s compliance with statutory signature requirements because the challenge, which did not implicate a violation of the Constitution, was limited under the drain code to certiorari review. Read more »

In Wells Fargo v. Cherryland Mall Limited Partnership, the Court of Appeals rejected a constitutional challenge to the retroactive effect of the Nonrecourse Mortgage Loan Act (“NMLA”) which stated that post-closing solvency provisions in mortgage loan documents would not be enforced as a nonrecourse carve-out.  The NMLA applied to nonrecourse loans in existence at time of the act’s passage.  In this case a lender had a nonrecourse mortgage, but included a carve-out requiring the borrower to remain solvent and, if the borrower did not remain solvent, granting full recourse rights to the lender.  The borrower became insolvent and the lender both foreclosed on the collateral, and sought recourse against the borrower (and a guarantor) for the deficiency.  By the NMLA’s plain terms, this solvency-based recourse provision was unenforceable, however the lender argued that the NMLA, which was passed after this mortgage was executed, was unconstitutional.  The Court rejected those constitutional challenges, finding that the NMLA was not an unconstitutional impairment of contract because it served the significant and legitimate public purposes of maintaining the investment environment in Michigan, allowing developers to qualify for financing, and preventing an increase in foreclosures.   The Court also held that, for the same basic reasons, the NMLA satisfied the rational basis test under substantive due process. Additionally, the Court concluded that the NMLA did not improperly invade the separation of powers as it did not tell the Court how to interpret a contract, but instead that certain provisions were void as against public policy.

In In re Sanders Minors the Michigan Supreme Court will have the opportunity to reconsider the constitutionality of the “one-parent doctrine”.  Under this doctrine, a court may exercise jurisdiction over both parents, in a parental termination proceeding, based solely on the bad acts of one of the two parents.  On Friday, the Court granted leave to appeal the January 18, 2013 Court of Appeals’ order denying leave to appeal in that court, and instructed the parties to address whether the doctrine violates the due process and/or equal protection rights of the unadjudicated parent.

The motion of the Children’s Law Section of the State Bar of Michigan to file a brief amicus curiae was granted.  The Court invited other interested amici to seek leave to file a brief.

In People v. Eliason, the Court of Appeals held that, while a mandatory life sentence for a juvenile constitutes cruel and unusual punishment in violation of the United States and Michigan constitutions, the option of a life sentence either with or without parole grants a court sufficient discretion to satisfy constitutional requirements.  Furthermore, a court may constitutionally impose a life sentence without parole after weighing the relevant factors, including the offender’s age.   Read more »

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).

The defendant in People v. Bowling pleaded nolo contendere to first-degree home invasion, second-degree murder and resisting and obstructing.  Police officers attempted to arrest the defendant and his brother while they were committing a home invasion.  The defendant attempted to flee, but he was eventually apprehended.  His brother used a gun that he had stolen from the home and shot and killed a police officer.  The police officer also shot and killed the defendant’s brother.  The trial court sentenced the defendant as a fourth habitual offender to concurrent sentences of 50 to 100 years for first-degree home invasion, 100 to 150 years for second-degree murder, and 3 to 15 years for resisting and obstructing.  Because the defendant did not preserve the issue of whether his sentences constituted cruel and unusual punishment, the Court of Appeals’ review was limited to whether plain error affected the defendant’s substantial rights.  A sentence of 100 years for second-degree murder was within the sentencing guidelines range, which was 365 to 1200 months or life.  The court stated that a “sentence within the guidelines range is presumptively proportionate, and a proportionate sentence is not cruel or unusual.”  Slip op. at 3.  And even though the defendant’s age of 49 years ensured that he would spend the remainder of his life in prison, the court concluded that fact alone did not render the punishment cruel or unusual, especially considering the defendant’s lengthy criminal record.  Accordingly, the court affirmed the defendant’s sentences, but remanded for the administrative task of correcting an error in the judgment of sentence.

The defendant in People v. Loper was convicted of both possession of child sexually abusive material and use of a computer to commit a crime.  He argued that the statute for possession was vague, because the statute prohibits possession or a single image of sexually abusive material and a collection of images, which could result in a variance in the number of criminal charges that could be brought.  Because the vagueness challenge did not involve First Amendment freedoms, the Michigan Court of Appeals examined the challenge on the facts of the case.  Offense variable (OV) 12 requires a score of 25 points for three or more contemporaneous acts of possession of child sexually abusive material.  The trial court assigned a score of 25 for OV 12, because the defendant possessed 4 disks of sexually abusive material.  The defendant argued that if he had been charged with more than one court, the statute would be vague by also allowing a score of 25 for OV 12.  But because the defendant was only charged with one count, the statute, as applied to the facts of his case, was not unconstitutionally vague.  The court also rejected the defendant’s argument that the statute prohibiting the use of a computer to commit a crime protected against the same wrongful conduct as the possession statute, because the statute prohibiting possession of child sexually abusive material applied to child pornography in a variety of formats, not just computer image.

Defendant allegedly pulled out a gun during a drug buy.  Defendant and the victim allegedly struggled over the gun, which went off, and the victim was killed.  Defendant was charged with first-degree felony murder, armed robbery, and possession of a firearm during the commission of a felony.  In People v. White, in a 3-2 decision, the Michigan Supreme Court affirmed the judgment of the Court of Appeals, which reversed the trial court’s decision to suppress defendant’s confession, which was given to a police officer while in custody and after defendant invoked his right to remain silent.  The majority, in an opinion by Justice Markman, joined by Chief Justice Young and Justice Zahra, agreed with the Court of Appeals that defendant was not subjected to “interrogation” in violation of Miranda, or specifically, “express questioning or its functional equivalent” under Rhode Island v. Innis, 446 U.S. 291 (1980).  The majority determined that the officer’s comment that “I hope that the gun is in a place where nobody can get a hold of it and nobody else can get hurt by it” was not a question, and that the officer’s addition of the words “okay” and “all right” at the end of his comment did not transform it into a question.  Further, the majority determined that defendant was not subjected to the “functional equivalent” of express questioning, because there was nothing in the record to suggest that the officer was aware that defendant was “peculiarly susceptible to an appeal to his conscience” or “unusually disoriented or upset at the time of his arrest.”  The majority noted that the officer’s single remark regarding the gun was not a “lengthy harangue,” nor was it “particularly evocative.” Read more »

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.