One Court of Justice

In a 2-2-3 opinion issued on December 30, 2008, the Michigan Supreme Court issued its opinion in Tomecek v. Bavas, upholding the plaintiffs’ right to use a “drive easement” for utilities, but reversing the Court of Appeals’ holding that Michigan’s Land Division Act (LDA) gives trial courts the authority to alter substantive property rights.  Disclaimer:  WNJ represented the prevailing plaintiffs in this action.

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On December 23, 2008, the Court denied bypass in one case, denied reconsideration in nine cases, and denied application for leave in 10 cases.  The Court also remanded one case, King v. McPherson Hospital, as on leave granted.

Yesterday, Governor Granholm appointed Cynthia Stephens of Detroit and Douglas Shapiro of Ann Arbor to fill vacancies on the Michigan Court of Appeals.

Stephens, a circuit court judge, replaces Judge Helene White, who was recently appointed a federal judge.  A short bio for Judge Stephens can be found here.

Shapiro, a partner in Muth & Shapiro, P.C., replaces Judge Michael Smolenski, who has retired.  Mr. Shapiro’s law firm bio can be found here.

In an opinion issued December 22, 2008, the Michigan Supreme Court declined to give retroactive application to the U.S. Supreme Court’s decision in Halbert v. Michigan, 545 U.S. 605 (2005), which held that indigent defendants who plead guilty to criminal offenses are entitled to appointed appellate counsel on direct appeal.  Because defendant Maxson’s appeal was final and the rule announced in Halbert did not satisfy either the federal or Michigan tests for applying a new rule of criminal procedure to a closed case, Maxson was not entitled to appointment of appellate counsel.  The decision is People v. Maxson, No. 129693.

On December 19, 2008, the Michigan Supreme Court denied applications or vacated previous orders granting applications in five cases.  The Court also remanded two cases for re-sentencing, People v. Poole and People v. Kurtz; held that the remedy of rescission is not available in an implied warranty action under the UCC against an out-of-privity seller, David v. Forest River, Inc.; and reversed a Court of Appeals opinion and remanded for entry of an order granting summary disposition in a premises liability action where the plaintiff failed to give the defendant (a government entity) notice within 120 days of the incident, as MCL 691.1406 requires, Chambers v. Wayne County Airport Authority (the Court peremtorily adopted the opinion of the dissenting Court of Appeals judge, which can be found here).

In an opinion issued December 19, 2008, the Michigan Supreme Court overruled People v. Poole, 444 Mich. 151; 506 N.W.2d 505 (1993), which had held that the admissibility of a codefendant’s nontestimonial hearsay statement is governed by both MRE 804(b)(3) and the Confrontation Clause of the United States Constitution.  The rule in Poole—that such testimony must also satisfy limits of admissibility imposed by the Confrontation Clause—had been premised on the U.S. Supreme Court’s ruling in Ohio v. Roberts, 448 U.S. 56 (1980), which the U.S. Supreme Court has since overruled.  A copy of the opinion can be found here:  People v. Taylor.

The Michigan Supreme Court, Court of Appeals, and State Court Administrative Office will be closed on Christmas Eve and Christmas Day, as well as New Year’s Eve and New Year’s Day.

The Supreme Court and the State Court Administrative Office will be open Dec. 26, Dec. 29, Dec. 30, and Jan. 2. The Court of Appeals will be open Dec. 29 and Dec. 30, but closed on Dec. 26 and Jan. 2.

In a published decision issued December 18, 2008, the COA held that, without regard to the underlying basis for the claim of liability, the law of the jurisdiction in which a limited partnership is organized controls the resolution of a limited partner’s liability.  Atlantic XXXI LLC v ART Midwest LLP.  You can find a copy of the opinion here.

The Michigan Supreme Court today issued two orders of significance to the Michigan appellate bar. First, the Court granted leave in In re Lee, a child custody case involving issues under the Indian Child Welfare Act. The Attorney General and the American Indian Law, Children’s Law, and Family Law Sections of the State Bar of Michigan are invited to file amicus curiae briefs.

Second, in People v. Bemer, the Court remanded to the Court of Appeals (as on leave granted) for a determination as to whether a sentencing judge has discretion under MCL 777.22(1) and MCL 777.42(1) to purposely score Offense Variable 12 at zero points to achieve a higher score under Offense Variable 13.

The Court also denied leave in 18 cases.