One Court of Justice

On February 27, 2009, the Michigan Supreme Court dismissed a Petition for Interim Suspension against an anonymous judge at the request of the Judicial Tenure Commission.  The Court also granted all amicus parties’ motions to file amicus briefs in Hunter v. Hunter (oral argument summary here) and Henry v. The Dow Chemical Company (oral argument summary here).  Lastly, the Court granted the State’s request for additional time to file its brief in People v. Bryant (oral argument summary here).

On February 26, the Court of Appeals released Mason v. City of Menominee, Case No. 282714, a published opinion concerning Michigan municipalities and the doctrine of property acquiescence.  Interpreting MCL § 600.5821(2), the court concluded that the plain language of the statute distinguishes the “state” from a “municipality,” such that a longstanding boundary the parties (erroneously) treated as the dividing line separating their properties could lead to a proper claim for acquiescence by the plaintiffs against the city.  Judge Beckering concurrred, elaborating more fully on this statutory dichotomy between property owned by the state and property owned by municipalities.

 

Additionally, the court extensively discussed the calculation of taxable costs on appeal—something that appellate practitioners should find helpful and, perhaps, even interesting.

On Tuesday, February 24, 2009, the United States Supreme Court clarified that for purposes of 18 U.S.C. § 922(g)(9), a “misdemeanor crime of domestic violence” includes an offense committed by a person who had a specified domestic relationship with the victim, regardless of whether the misdemeanor criminal statute itself requires the domestic relationship as an element of the crime.  Under the 1968 Gun Control Act, convicted felons are prohibited from possessing a firearm.  In 1996 Congress expanded this prohibition to include persons convicted of a misdemeanor crime of domestic violence.  In Hayes, the defendant was not convicted under a domestic violence statute, but, rather, was convicted under a general battery statute following an assault on his ex-wife. This decision will undoubtedly affect criminal practitioners and defendants as they analyze possible plea bargains in domestic violence cases.  A copy of the opinion can be found here.

On February 27, 2009, the Michigan Supreme Court ordered that four cases be administratively closed because the petitioner failed to pay the partial filing fees ordered by the Court in early January 2009.  The Court also allocated argument time for next week’s argument in Attorney General v. Michigan Public Service Commission (oral argument summary here).  Each side is allowed 15 minutes to address the control premium issue, and then each side is allowed 15 minutes to address the transmission issue.

As reported previously on this Blog, the Michigan Court of Appeals recently invalidated a water supply contract under which the City of Grand Ledge provided water services to residents of neighboring Oneida Township.  Oneida Charter Township v. City of Grand Ledge.  According to an article in today’s Lansing State Journal, the City is planning an appeal of the ruling, a question of statutory interpretation that potentially affects dozens of cities and townships across the state.  The full article can be found here.

On February 24, 2009, the Court of Appeals issued a published opinion in AutoAlliance Int’l, Inc. v. Department of Treas., No. 282096, in which it allowed vehicle manufacturers to obtain a refund of the motor fuel tax paid in Michigan for fuel put into vehicles in Michigan, but then shipped for sale outside of Michigan.  Read more »

On February 24, the Court of Appeals published a per curiam opinion in Cooper v. Farm Bureau Ins. Co., et al., holding that, under Michigan’s no-fault insurance framework, an insurance company may not enforce its right to reimbursement from the owner of an uninsured vehicle by withholding benefits it would otherwise be obligated to pay to that owner for injuries incurred in the accident:  the insurer must first pay any appropriate benefits, then seek reimbursement from the owner of the uninsured vehicle.  Read more »

On February 24, 2009, the Michigan Court of Appeals in Bandeen v. Public School Employees Retirement Board, No. 279363, affirmed the lower court’s finding that a substitute teacher, who refused further assignments five months before giving birth with no evidence of being medically unable to teach, did not leave service for purposes of maternity and was not a “public service employee” on leave of absence, making her ineligible to purchase public service credits during any part of her continuous twelve-year absence. Read more »

On February 24, 2009, the Michigan Supreme Court denied 94 applications for leave to appeal, denied 12 motions for reconsideration, held two appeals in abeyance pending a decision in People v. Idziak, No. 137301 (regarding the computation of parole dates), and one appeal in abeyance pending a decision in People v. Jackson, No. 135888 (regarding collection of attorney fees from criminal defendants).  The Court also remanded People v. Allen, No. 137844, for consideration in the Court of Appeals as on leave granted.

Yesterday, in NSK Corp. v. Robert Bosch Corp., No. 283048, the Michigan Court of Appeals in an unpublished opinion reaffirmed the strong public policy in favor of arbitrability.  NSK and Bosch entered into a settlement agreement and incorporated Bosch’s standard terms and conditions.  Those terms included an arbitration provision.  The court affirmed that the parties’ dispute arising out of the settlement agreement was arbitrable, noting that any doubts about whether a dispute is arbitrable must be resolved in favor of arbitration.  Disclaimer:  WNJ represented the prevailing defendant in this appeal.

On March 4, 2009, the Michigan Supreme Court will hear oral argument in Potter v. Murray, No. 136336, deciding whether a radiological professional corporation that contracts with a hospital to provide radiology services is a “health facility or agency” to which a plaintiff in a medical malpractice case must provide notice under MCL § 600.2912b(1).  (See the Court’s order granting leave and the available briefs.) Read more »

On March 3, 2009, the Michigan Supreme Court will hear oral arguments in two consolidated cases, Attorney General v. MPSC, Nos. 134667, 134668, 134669, 134671, 134673, 134674, 134676, 134677, and Attorney General v. MPSC, No. 136431, to decide whether a power company’s transmission costs may be passed on to consumers as a cost recovery factor.  The Court will also decide whether a premium paid by a power company to acquire another power provider may be recaptured in rate setting.  The orders granting the applications for leave can be found here and here.  The briefs of the parties and amici curiae can be found here and here.

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The Michigan Supreme Court will hear oral argument In re Lee on March 4, 2009.  In Lee, the state is seeking to terminate the parental rights of Cheryl Lee, a member of the Sault Saint Marie Tribe of Chippewa Indians, to her son Jaden Lee.  The Court has agreed to consider two issues involving the interpretation of the Indian Child Welfare Act: (1) whether the term “active efforts” in 25 U.S.C. § 1912(d) requires the state to show that it has taken recent steps to prevent the break-up of the Indian family; and (2) whether the beyond-a-reasonable-doubt standard of 25 U.S.C. § 1912(f) requires contemporaneous evidence that leaving the child in the custody of the Indian parent will likely harm the child.  The Court’s order granting leave may be found here.  The briefs of the parties may be found here.  The Michigan Court of Appeals’ opinions may be found here and here. Read more »

On March 4, 2009, the Michigan Supreme Court will hear oral argument in In re Morgan, No. 137362, on whether a mother’s parental rights were properly adjudicated by circuit court and reviewed by the Court of Appeals.  The opinion reversing and remanding the termination of the mother’s parental rights is available here.  The Court’s order granting leave can be found here.  The briefs of the parties can be found here. Read more »

On March 4, 2009, the Michigan Supreme Court will hear oral argument In re Servaas, No. 137633, on whether to accept, reject, or modify the Judicial Tenure Commission’s (“JTC”) Recommendation for Order of Discipline against Hon. Steven R. Servaas.  The JTC recommended that Judge Servaas be removed from office because he vacated his judicial office by failing to reside within the division of the district from which he was elected, by engaging in sexually inappropriate conduct toward his staff, and by lying under oath during the JTC proceedings.  Judge Servaas challenges the JTC’s interpretation of Michigan law regarding whether a judge must reside within the division of the district court from which the judge is elected as opposed to the district as a whole, the JTC’s conclusion that he lied under oath, and the severity of the sanction recommended.  The Michigan Supreme Court reviews the Commission’s findings of fact and recommendations de novo.  The JTC’s decision and recommendation can be found here.  The parties’ briefs can be found here.  Read more »

On March 3, 2009, the Michigan Supreme Court will hear oral argument in the case of Hunter v. Hunter, No. 136310.  The Court granted leave to address several important issues regarding the burden of proof a trial court must use when making custody determinations as between a parent and a third party.  The most imporant issue to be addressed is whether the standard of parental fitness announced in Mason v. Simmons, 267 Mich App 188, 206 (2005), violates a natural parent’s fundamental rights to his or her child.   The order granting leave to appeal can be found here.  The parties’ briefs can be found here.

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On March 4, 2009, the Michigan Supreme Court will hear oral argument in Selflube, Inc. v. JJMT, Inc., No. 136377, on whether the trial court could permanently enjoin an employee, who allegedly defrauded his employer, from taking a distribution from his 401(k) plan account, without running afoul of ERISA’s anti-alienation provision, 29 U.S.C.  § 1056(d)(1).  The order granting the application for leave to appeal can be found here.  The briefs of the parties and amici curiae can be found here. Read more »

On March 3, 2009, the Michigan Supreme Court will hear oral argument in People v. Richard Perry Bryant, No. 133725, on whether the Confrontation Clause to the U.S. Constitution bars the State from introducing statements made by a witness dying of gunshot wounds, who died prior to trial.  The central issue in the case is whether the witness’s dying statements are “testimonial” or “non-testimonial” under the United States Supreme Court’s decisions in Crawford v. Washington, 541 U.S. 36 (2004) and Davis v. Washington, 547 U.S. 813 (2006).  The Court’s order granting leave can be found here.  The briefs of the parties can be found here. Read more »

Justices of the Michigan Supreme Court have recusal rules on their agenda for a public administrative conference scheduled March 5, 2009.  Two days earlier, however, the U.S. Supreme Court will be hearing oral arguments in Caperton v. Massey, litigation over a West Virginia Supreme Court Chief Justice who refused to recuse himself in a case involving a company whose CEO had contributed $3 million to the Chief Justice’s election campaign.  Michigan Supreme Court Justices Corrigan and Young were among 10 Justices from several states who signed an amicus curiae brief in support of the West Virginia Chief Justice.  The Detroit Free Press has published an article that summarizes the Caperton case; it can be found here.

On March 3, 2009, the Michigan Supreme Court will hear oral argument in Henry v. The Dow Chemical Company, on whether the “rigorous analysis” requirement for class certification in federal courts also applies to state courts, if so whether the circuit court conducted a proper “rigorous analysis,” and whether class certification was appropriate.  This is the second time that the Henry case has come before the Michigan Supreme Court.  The order granting leave to appeal can be found here.  The briefs of the parties and the seven amici can be found here. Read more »