One Court of Justice

On March 30, 2009 the Michigan Supreme Court denied one motion to waive fees.

On March 28, 2009, the Michigan Supreme Court denied six applications for leave; held People v. Richards, Case No. 137577 in abeyance pending the Court’s resolution of People v. Idziak, Case No. 137301; and granted rehearing in United States Fidelity Insurance & Guaranty Co. v. Michigan Catastrophic Claims Assoc., Case Nos. 133466, 133468.  Justices Corrigan and Young would have denied rehearing in the Fidelity Insurance case, in which the Court had held, 4-3, that where an MCCA member’s policy only provides coverage for “reasonable charges,” the MCCA has the authority to refuse to indemnify unreasonable charges.  (The Fidelity Insurance December 29, 2008 opinion, concurrence, and dissents can be found here.)

There are two notes of interest regarding the Fidelity Insurance case.  First, Justice Markman, who concurred but did not join the original majority opinion, did not join the dissent from the order granting rehearing.  Second, the Court declined to order additional briefing or a second oral argument, meaning that Justice Hathaway will be asked to decide the case based solely on the original briefing and argument, held while then-Chief Justice Taylor was still a member of the Court.

On March 25, 2009, the Michigan Supreme Court denied three applications for leave to appeal, held one case in abeyance until a decision is rendered in Bush v. Shabahang, and denied one motion for a waiver of fees in a civil action against the Ingham County Circuit Judge.  The court also took substantive action in one criminal case, People v. Gonzales.  This case is discussed after the jump. Read more »

Yesterday, in Laketon Township v. Advanse, Inc., Case No. 276986, the Michigan Court of Appeals reaffirmed that the time for determining whether a nonconforming use vests in a property owner is the date the relevant zoning ordinance was enacted or amended.  Defendant purchased a property known as Sunset Beach Cottages in Laketon Township and began short-term rentals of a house that the previous owners had used as their permanent residence.  At the time of purchase, the Township zoning ordinance did not prohibit the new use.  In response to complaints about short-term rentals at other properties, the Township amended its ordinance to bar that use.  The trial court enjoined Defendant, ruling that Defendant could not expand the use made by the prior owner.  The Court reversed, stating that “Michigan case law and MCL 125.3208 both emphasize that the enactment date of the ordinance ‘is the critical point in determining when a nonconforming use vests.’”  Disclaimer:  WNJ represented the prevailing appellant in this matter.

On Friday, the Michigan Court of Appeals issued a published per curiam opinion in which it clarified Michigan law on “first priority insurer” status in a dispute between two insurance companies related to “personal injury protection” (PIP) under Michigan’s no-fault insurance law.  Tevis v. Amex Assurance Co. (Case No. 282412).  Plaintiff incurred serious injuries as he was driving his motorcycle.  The automobile involved in the accident was insured by Amex through a policy issued in the state of Washington.  Amex, though it had registered in Michigan under MCL § 500.3163, did not provide no-fault coverage to the automobile driver.  However, the automobile driver’s parents did have a no-fault policy issued through Geico Indemnity Co.  When both insurers declined to play plaintiff PIP benefits, plaintiff filed suit.  

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On Friday, the Michigan Court of Appeals issued a published opinion in the consolidated case of Shaw v. City Ecorse (Case Nos. 279997 and 280693).  One case involved the termination of the city’s police chief and the other involved the termination of a fire captain. 

 

The fire captain (Case No. 279997) claimed that he was improperly terminated under Michigan’s Whistleblower act, MCL § 15.362, for expressing opinions about the status of the city’s fire department.  The circuit court granted the city’s motion for summary disposition, but the court of appeals reversed, holding that at least some of the fire captain’s comments were protected by the act.

 

The police chief (Case No. 280693) claimed that he was the victim of age discrimination and a breach of contract when he was forced to retire by the city council.  The case went to a jury, which awarded the police chief $1.75 million in damages.  The city appealed the verdict, claiming that it should be subject to remittitur due to claimed insufficiency of evidence to support the amount of the non-economic damages award and the amount of the pension benefits award.  The court of appeals affirmed the decision in all respects.

On March 23, 2009, the Michigan Supreme Court denied leave to appeal in 113 cases, denied reconsideration in 20 cases, and held 6 cases in abeyance.  The Court also vacated the sentence imposed by the circuit court in People v. Duley, No. 137194, available here, and it remanded the case for resentencing.

On March 20, 2009, the Michigan Supreme Court denied leave to appeal in four cases.

Today, the Michigan Court of Appeals released a published per curiam opinion that affirmed a trial court’s dismissal of claims brought by Kenyatta Hudson against various defendants, including Marshall Mathers (aka, Eminem).  Hudson v. Mathers, Case No. 280396.  The court affirmed that Hudson could not enforce a management contract against one defendant (not Mathers) because Hudson was not a licensed personnel agent as required under MCL § 339.1019(b).  (Moreover, the court noted that Hudson could not succeed on an equitable theory against that defendant in light of the Michigan Supreme Court’s interesting decision in Stokes v. Millen Roofing Co., 466 Mich 660, 649 NW2d 371 (2002).)

Hudson’s unjust enrichment claim against the other defendants (including Mathers) fared no better, as the court noted that a claim for unjust enrichment could not exist where, as here, an express contract covered the same subject matter.

On March 18, 2009, the Michigan Supreme Court issued its unanimous decision in People v. Swafford, No 136751, holding that a prosecutor’s lodging of a detainer with U.S. Marshals—rather than the prison where the defendant was incarcerated—was sufficient to trigger the speedy trial  process prescribed by the Interstate Agreement on Retainers (IAD), MCL § 780.601.

In the ordinary case, the prosecutor will lodge a detainer at the place of incarceration.  If the defendant then makes a request for final disposition of the indictment, the prosecutor must bring the case to trial within 180 days or the charges will be dismissed with prejudice.  The Court noted that the IAD does not indicate that it is only applicable when the detainer is lodged at the place of incarceration, and it was undisputed that the defendant’s place of incarceration received the detainer.  Because the prosecutor subsequently failed to begin trial within 180 days of the defendant’s request for disposition, the statute mandated dismissal of all charges with prejudice.  As the Court observed:  “However harsh and inflexible a remedy for failure to comply with the IAD this may be adjudged, it is plainly what our Legislature requires.”  The opinion can be found here.

On March 18, 2009, the Michigan Supreme Court denied seven applications for leave to appeal, held three criminal cases in abeyance until a decision is rendered in People v. Idziak, and denied one motion for a waiver of fees in a prisoner civil action against the Michigan Department of Corrections. The Court also took substantive action in one civil and one criminal case.  These cases are discussed after the jump.

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On April 7, 2009, the Michigan Supreme Court will hear oral argument in People v. Jeremy Fisher, No. 136591, to decide (1) whether the warrantless entry into Defendant’s home was justified under the emergency aid doctrine and (2) whether evidence of an assault against the police may be suppressed irrespective of the validity of the warrantless entry into the house.  The Court has also asked the parties to address what standard of review is applicable for an appellate review of a trial court’s decision regarding an alleged Fourth Amendment violation for a warrantless entry into a house.  The Court’s order granting leave can be found here.  The briefs of Defendant Fisher and the State’s brief can be found here.

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On April 7 or 8, 2009, the Michigan Supreme Court will hear oral argument in People v. Idziak, No. 137301, to decide whether a parole board is required to compute a new parole eligibility date for inmates who commit new criminal offenses while on parole, by exercising its discretion to determine what constitutes the “remaining portion” of the sentence for the previous offense.  If so, the Court will consider whether this requirement is satisfied by a Department of Corrections (“MDOC”) policy to automatically begin the new sentence as of the date of the most recent sentencing, minus any days of jail credit awarded by the trial court.  The Court also will decide whether the judiciary may review such a decision by MDOC, whether the decision may constitute a violation of a defendant’s right to due process or equal protection, and whether the trial court is authorized to award jail credit to parolees.  The order granting the application for leave can be found here.    

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The Michigan Supreme Court will hold a mini-oral argument (a “MOA”) on April 7 or 8, 2009, to determine whether to grant Defendant Holder’s pro per application for leave to appeal in People v. Holder, No. 137486.  Holder is seeking a resentencing hearing.  If the application is granted, the Court will consider whether a court has authority under MCR 6.429(A) to modify a sentence that it determines is invalid ex parte.  The Court of Appeals denied Holder’s application for leave to appeal for lack of merit.  The order granting oral argument regarding Holder’s application for leave to appeal may be found here.

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The Michigan Supreme Court will hear argument in People v. Kircher, No. 137652, on April 7 or 8, 2009, to determine whether to grant Defendant Kircher’s application for leave to appeal. Kircher was sentenced to five years imprisonment under MCL § 324.3115(4)—violation of water resources protection posing a substantial endangerment to the public. The Court ordered supplemental briefing on the issue of whether the plain language of MCL § 324.3115(4) requires a determinate sentence of five years or whether the inclusion of that statute within MCL § 777.13c, which lists the felonies subject to minimum sentencing guidelines, requires the imposition of an indeterminate sentence. The order granting oral argument on the application for leave to appeal can be found here, and the briefs of the parties can be found here.

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On April 7, 2009, the Michigan Supreme Court will hear oral argument in People v. Harvey Eugene Jackson, No. 135888, to decide whether due process concerns impact how much a criminal defendant can be ordered to repay in fees for appointed defense counsel.  In 2004, the Court of Appeals decided People v. Dunbar, 264 Mich. App. 240, holding that U.S. Supreme Court precedent required a court to consider a defendant’s “foreseeable ability to pay” in deciding how much he or she could be forced to pay for defense costs.  Among other issues, the Supreme Court will be examining whether Dunbar was correctly decided.  The Court’s order granting leave can be found here.  The brief of Defendant Jackson and the State’s brief (when it is filed) can be found here. 

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The Michigan Supreme Court will hold oral argument in Jackson v. Estate of Green on April 7 or 8, 2009.   The Court granted leave to address five issues centered around two problems:  whether an action to partition jointly owned real estate survives the death of the person who filed the action, and the point in time at which a cause of action accrues for a breach of verbal loan that did not include explicit terms for repayment.  The Court of Appeals held that, as a matter of law, the owner’s death before partition resulted in the co-owner becoming the sole owner of the parcels.  With regard to the second issue, the Court of Appeals held that the loans were payable on demand, and that the claim accrued when the plaintiff first demanded payment.  Once they become available, the parties’ briefs will be found here.

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At a session on April 7 or 8, 2009, the Michigan Supreme Court will hear oral argument on the merits in a medical malpractice case, Bush v. Shabahang, Nos. 136617, 136653, and136983 to address two issues of jurisprudential significance: (1) whether plaintiff’s allegedly defective notice of intent (“NOI”) tolled the relevant limitations period; and (2) whether a plaintiff could file a medical malpractice action just 154 days after a NOI based on a defective response to that notice.  The order granting leave to appeal can be found here.  The parties’ briefs can be found here.

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The Michigan Supreme Court will hold a mini-oral argument (a “MOA”) on April 7 or 8, 2009, to determine whether to grant Defendant Lowe’s application for leave to appeal in People v. Lowe, No. 137284.  Lowe is seeking vacation of his sentence for methamphetamine possession.  If the application is granted, the Court will consider whether MCL § 333.7412, which enhances sentences for repeat drug offenders, doubles the offender’s minimum sentence as well as his maximum sentence.  The Court of Appeals denied Lowe’s application for leave to appeal for lack of merit.  The order granting oral argument regarding Lowe’s application for leave to appeal may be found here.
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