One Court of Justice

According to CNN.com:

Supreme Court Justice David Souter is retiring after more than 18 years on the nation’s highest court, a source close to Souter told CNN. Souter will leave after the current court term recesses in June, the source said. Filling Souter’s seat would be President Obama’s first Supreme Court appointment — and the first since George W. Bush’s picks of Samuel Alito in 2006 and Chief Justice John Roberts in 2005.

The full story is here.

On April 28, 2009, the Michigan Court of Appeals released its published opinion in Yono v. Carlson, Case No. 281268, clarifying the appropriate venue for claims of defamation per se under MCL § 600.1629(1)(a).  Defendant Carlson and his newspaper published allegedly defamatory statements regarding plaintiff Yono and his construction companies.  The court held that the injury occurred where the defendants first printed and issued the defamatory newspaper, and so the county where publication occurred was the appropriate venue.  The Court of Appeals opinion may be found here.

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On April 29, 2009, the Michigan Court of Appeals issued an order in In re Wayne Circuit Judge, Case No. 290971, directing the trial court to open the post-conviction proceedings to the public and allow the release of transcripts from the post-conviction hearing.  Read more »

On April 29, 2009, the Michigan Supreme Court denied leave to appeal in six cases and denied reconsideration in one case.  In Orchard Estates v. Dawood, Case No. 137974, in lieu of granting appeal, the Court affirmed the Court of Appeals’ conclusion that because the bylaws and the restrictive covenants were unrecorded, neither were binding on defendants.  However, the Court vacated the Court of Appeals majority’s analysis of the Michigan Condominium Act because the Court concluded the analysis was unnecessary to reach a decision in this case.  A copy of the order can be found here.  The Court also granted leave to appeal in Kyser v. Kasson Township, which is discussed after the jump. Read more »

The Michigan Supreme Court will hold a public administrative hearing at 9:30 a.m. on Tuesday, May 12, 2009, in the Supreme Court courtroom.  The Court will address whether to adopt (1) a proposed amendment to MCR 2.112 that would clarify the rules regarding affidavits of merit; (2) a proposed amendment to MRE 611 to clarify that judges are entitled to establish reasonable standards regarding the appearance of parties and witnesses; (3) proposed amendments to various rules regarding mediation and case evaluation; (4) amendments to juvenile court standards and administrative guidelines for the care of children; (5) an amendment to MCR 2.516 that would require judges to instruct jurors that they are prohibited from using computers or cell phones during trial; (6) one of two proposed amendments to MCR 8.115 regarding attorneys and cell phones in the courthouse; and (7) a proposed amendment to MCR 3.01 regarding funds exempt from garnishment.  Additional information can be found on the Court’s website, here.  An article about the Michigan Civil Rights Commission’s opposition to the proposed rule regarding courtroom attire can be found here.

On Tuesday, April 28, 2009, the Michigan Supreme Court denied 121 applications for leave to appeal; denied 14 motions for reconsideration; held six applications in abeyance until the Supreme Court’s disposition of other, pending cases; and administratively closed one case for failure to pay a partial filing fee.  The Court also vacated in part and remanded People v. Baisden, Case No. 137890, for the Court of Appeals to reconsider the defendant’s claims of sentencing error, claims that the Court of Appeals had treated inconsistently in its memorandum opinion.  And finally, the Court remanded People v. Brown, Case No. 137705, for the Court of Appeals to consider as on leave granted, though the Supreme Court gave no additional direction as to how the remand should proceed.

On Friday, April 24, 2009, the Michigan Supreme Court denied leave to appeal in five cases, denied a motion to waive fees in another case, and ordered oral argument on whether to grant leave the five cases discussed below.  In each case, the Court gave the parties 42 days to submit supplemental briefing, all but guaranteeing that these arguments will occur in the Court’s 2009-2010 term. 

Finally, the Court denied leave to appeal in VanSlembrouck v. Halperin, No. 135893, after hearing oral argument on whether to grant leave to appeal.  In VanSlembrouck, a medical malpractice action, the parties addressed whether medical malpractice plaintiffs relying on the 10-years-of-age provision in MCL § 600.5851(7) are entitled to the benefit of the notice-of-intent tolling provision in MCL § 600.5856(c). The parties focused their arguments on whether MCL § 600.5851(7) is a savings provision, rather than a statute limitation.  The Court’s denial of leave affirms the Court of Appeals’ decision that the plaintiffs are entitled to benefit from the tolling provision in MCL § 600.5856(c).   Justices Corrigan, Markman, and Young dissented.  This decision may be a harbinger of a relaxation of the Court’s jurisprudence strictly applying statutes of limitation.  Our earlier post on VanSlembrouck is here. Read more »

In In re Parole of Cecil Hawkins, No. 138723, the Michigan Supreme Court denied Hawkins’ motion to waive filing fees because MCL  § 600.2963 requires a prisoner to pay all civil action filing fees.

On April 21, 2009, the Court of Appeals published an opinion in Florence Beach v. Township of Lima, Case No. 274920, holding that an adverse possession claim could be maintained with respect to an irrevocable easement created by a private dedication.  The Court of Appeals affirmed the trial court’s decision allowing the adverse possession claim to proceed as a quiet title action, rather than requiring that an action to vacate platted streets be brought under the Land Division Act (LDA).  The Court of Appeals further held that although a party is not required to bring an adverse possession claim under the LDA, it may do so.  In light of the Michigan Supreme Court’s recent decision in Tomecek v. Bavas, the Court of Appeals concluded that although the LDA cannot alter or create substantive property interests, an LDA action can nonetheless be used to alter the plat map to give legal recognition to an alteration of substantive property interests.

On April 22, 2009, the Michigan Supreme Court denied leave to appeal in fourteen cases and held the case of People v. Lewis, Case No. 136622, in abeyance pending the United States Supreme Court’s decision in Melendez-Diaz v. Massachusetts.  Like Melendez-Diaz, Lewis concerns the issue of whether an autopsy report is testimonial under Crawford v. Washington.  In Lewis, the Court must determine whether the defendant’s Sixth Amendment right under the confrontation clause was violated where the trial court properly admitted an autopsy report, authored by two nontestifying medical examiners, through the testimony of a third medical examiner from the same lab.  A copy of the Court’s order can be found here.

 In People v. Pinkey, Case No. 138550, in lieu of granting appeal, the Court remanded the case to the Berrien County Circuit Court for reconsideration of the conditions of the appeal bond.  The Court ordered the trial court within 21 days to articulate the reasons for imposing a “24/7” curfew on the defendant.  The trial court was further ordered to file copies of the transcript and any related documents with the clerk of the Supreme Court.  The Court retained jurisdiction.  A copy of the Court’s order can be found here.

On April 21, 2009, the Court of Appeals released a published opinion in three consolidated criminal cases, People v. Benjamin, People v. Heniser, and People v. Zdybel, reversing orders by the Isabella Circuit Court granting three criminal defendants’ motions for destruction of their arrest cards and fingerprints by the arresting agency or Michigan State Police.  The court unanimously held that the trial court erred by equating a discharge and dismissal under MCL § 333.7411(1) with a finding of not guilty as required to trigger destruction of fingerprints and arrest cards under MCL § 28.243(8). Read more »

On April 21, 2009, the Court of Appeals published its decision in City of Flint v. Chrisdom Properties, Ltd., affirming a a trial court judgment and holding that the City of Flint had frustrated the purpose of a contract loan agreement to convert two downtown buildings into condominiums.  Read more »

On April 21, 2009, the Michigan Court of Appeals released an opinion for publication in People v. Wade, Case No. 281566, reversing the defendant’s convictions for involuntary manslaughter and possession of a firearm during the commission of a felony.  In a unanimous decision, the court determined that the jury verdict form, which did not include the option of finding the defendant generally not guilty, was a violation of the defendant’s constitutional right to a trial by jury.  The court rejected the defendant’s second argument and ruled that where the trial judge had only shown hostility toward a general class of persons, rather than toward the defendant in particular, the judge’s refusal to recuse herself did not constitute an abuse of discretion.  A copy of the opinion can be found here. Read more »

On May 5, 2009, the Supreme Court will hear oral argument in People v. Matthew Lloyd McGraw, No. 132876.  The Supreme Court will be examining criminal sentencing guideline issues, including whether an accomplice can be counted as a “victim” for sentencing purposes and what conduct is part of the “criminal transaction” that can be used to score offense points.  The Court’s order granting leave can be found here.  The brief of Defendant McGraw has been filed but is not available on the public Internet docket.  The State’s brief was due April 17, 2009, and has not yet appeared on the public Internet docket. Read more »

On Monday, April 20, the Michigan Supreme Court denied one motion to waive fees.

The Michigan Court of Appeals has released its opinion affirming the Wayne County Circuit’s decision to block transfer of Cobo Convention Center to a regional authority.  Our previous posts on this litigation are here and here.  In the published decision, authored by Judge Talbot, the Court agreed with the trial court that Mayor Cockrel’s attempt to veto a City Council resolution (which disapproved the transfer) was null and void under the plain language of the Regional Convention Facility Authority Act, MCL § 141.1351 et seq.  Specifically, the Court relied on the fact that the Act grants a city’s legislative body the express authority to disapprove the transfer of a convention facility to a regional authority, but does not specifically grant a local chief executive officer veto, despite delineating several other powers for the local CEO.  Given the importance of the veto power, the Court would not assume the Legislature unintentionally overlooked the role of the local CEO.

On Friday, April 17, the Michigan Supreme Court denied leave to appeal in nine cases including one case in which a party sought leave to appeal before the Court of Appeals had considered the matter (this process is known as bypass).  The Court also denied reconsideration in one case.

On April 17, 2009, the Court of Appeals released a published opinion in Capital Properties Group, LLC  v. Center Street, LLC, affirming the circuit court’s decision granting the defendant’s motion for summary disposition on Plaintiff’s noise ordinance and nuisance claims.  Defendant owns a Lansing nightclub in an area of the city zoned for business.  Plaintiff owns a building next to the nightclub that contains both residential and commercial units.  The court concluded that Lansing’s noise ordinance, by its plain language, only applies to areas zoned residential; that noise from a nightclub does not harm the public and so does not create a public nuisance; and that nightclub noise does not unreasonably inerfere with the plaintiff’s rights and so is not a private nuisance.  Judge Kelly dissented from the decision on the private nuisance.  Read more »

The Detroit News is reporting that the Michigan Court of Appeals issued an opinion today that affirms the Wayne Circuit Court’s decision to block transfer of Cobo Convention Center to a regional authority.  Detroit Mayor Ken Cockrel, Jr., attempted to veto the Detroit City Council’s February 24, 2009 resolution, which disapproved the transfer.  The trial court held that the Regional Convention Facility Authority Act did not authorize such a veto.  Our previous post on this appeal can be found here.  The Court of Appeals Opinion will be posted when it becomes available.

On April 15, 2009, the Michigan Supreme Court granted extensions for time to file briefs in two cases, granted a stay of the trial court proceedings pending consideration of the application of leave to appeal in People v. Carter, and dismissed an application for leave to appeal by stipulation of the parties.  Additionally, in In re McBride Minors, the Court adjourned the oral argument scheduled on the leave to appeal (although the application for leave to appeal remains pending), granted the Attorney General an extension to file its brief regarding the application for leave to appeal, and granted National Lifers of America leave to file brief amicus curiae.

The Court also granted the Michigan Association for Justice and the University of Michigan leave to file briefs amicus curiae in Bush v. Shabahang.  In Bush, a medical malpractice case, the Court will decide two issues:  (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.  A separate post discussing the procedural history and issues presented in Bush can be found here.