One Court of Justice

On Friday, May 29, 2009, the Michigan Supreme Court granted leave in the four cases below, ordered oral argument on the application for leave in one case, and denied leave to appeal in three cases.  The Court also peremptorily reversed the Court of Appeals and reinstated the circuit court’s decisions in two cases, and remanded one case to the Court of Appeals as on leave granted to address a sentencing issues.

People v. Flick, No. 138258 and People v. Lazarus, No. 138261:  The Court granted leave to appeal to determine whether intentionally viewing child pornography on the Internet is knowing possession of child sexual abuse material under MCL § 750.145c(4); and whether the presence of temporary Internet files on the defendant’s computer hard drive is knowing possession of child pornography or evidence of knowing possession of  child pornography in the past.  The Court invited amicus briefs from the Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan.  The Court also held People v. Reiss, No. 137321, in abeyance pending the resolution of Flick and Lazarus. Read more »

The Michigan Supreme Court denied nine applications for leave to appeal on May 28, 2009, and remanded to the Court of Appeals the case People v. Adams, 138048, as on leave granted.

In a divided opinion in People v. Dupree, No. 281408 (published May 28, 2009), the Michigan Court of Appeals concluded that the defenses of duress, self-defense, and justification apply to the charge of being a felon in possession of a firearm in violation of MCL § 750.224f.  Two judges agreed that the defenses applied on the facts of the case, while the dissent concluded both that the defendant waived an instructions as to these defenses and that the instruction the trial court did issue was harmless error.  The majority opinion by Judge Michael Kelly can be found here, the concurrence by Judge Gleicher here, and the dissent by Judge Murray here.

The case arose out of an incident at a party.  According to the defense, another man at the party pushed the defendant, and in the ensuing fight the defendant discovered that the man was carrying a gun in the waist of his pants.  The gun went off during the struggle, wounding the other man.  The defendant left the scene shortly thereafter, and threw the gun out the window as they drove off.  According to the prosecution’s version of events, the defendant, not the other man, brought the gun to the struggle.

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On May 28, 2009, the Michigan Court of Appeals, in a published per curiam opinion, decided that parties seeking to vacate an arbitration award involving a municipality and one of its unions have six years to do so before the statute of limitations extinguishes the claim.  The case, City of Ann Arbor v. AFSCME Local 369 (Case No. 283814), arose out of labor negotiations between the City and the Union.  The existing contract, which expired on June 30, 2001, contained a “me too” provision that required the City to provide the Union wage increases identical to any wage increases the City agreed to provide to other unions, such as police and firefighters.  The City/Union negotiations were not completed prior to the June 30, 2001, contract end so both parties agreed to “ground rules” that, in part, kept the existing contract in effect until the parties agreed to a new one.  Ultimately, the parties agreed to a new contract, which was ratified by the Union in October 2002. 

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In its published opinion in Marquette General Hosptial, Inc. v. County of Baraga, the Court of Appeals reversed the trial court’s award of summary disposition (with prejudice) to the County of Baraga in Marquette General Hospital’s suit to collect a medical bill related to the in-patient hospital care of an inmate at the Baraga County Jail.  The court found that the Hospital complied with MCL § 801.4, by making a reasonable effort to determine if there was another source for payment (such as health insurance or Medicaid), before submitting an invoice to the County.  But, the court found that the statute required the Hospital to include a written statement of its efforts to secure an alternative source of funding along with its invoice to the County.  The court affirmed the trial court’s conclusion that the Hospital’s verbal statements failed to meet this statutory requirement, but disagreed that the proper remedy was dismissal of the Hosptial’s claim with prejudice.  Instead, the court stated that the Hospital could comply with the statute by resubmitting the invoice along with a proper written statement.

On May 26, 2009, the Court of Appeals published a unanimous, per curiam opinion in Hughes v. Township of Almena, No. 279085, addressing a number of procedural issues under the Township Zoning Act (“TZA”), which was repealed in 2006 by a statute that retained much of the same language, the Michigan Zoning Enabling Act.   Most significantly, the court held that, under the TZA, the zoning board of appeals (“ZBA”) is not limited to the record on appeal from a township board’s decision and has statutory authority to obtain evidence not previously presented.  Secondly, though not expressly provided for in the TZA, it is proper for a township ordinance to designate PUD application review and recommendation responsibilities to the planning commission as an aid to the township board, so long as the township board retains responsibility for its own review and final approval.  Third, the township’s ordinance was not invalid for failing to reference the township board’s statutory obligation to hold a hearing on the PUD application because the ordinance is read in conjunction with the statute, as they are in pari materia.  Fourth, the court held that lack of a specific opportunity to rebut evidence presented at the hearings does not violate the PUD applicant’s right to due process where the applicant had prior notice of the issue of concern and was given an opportunity to present evidence in support of its application on that issue at the hearings.  Finally, the township board member’s appearances and comments at the planning commission and ZBA hearings as to “why he did not believe the proposed PUD complied with the requriements of the zoning ordinance” did not constitute improper procedure or duress or inject bias into the proceedings.  The court also rejected the applicant’s argument that the planning commission’s conclusion that the PUD met the ordinance’s definition of a PUD estopped the township board from concluding otherwise.  Counsel now have an interesting task in determining to what extent these holdings apply to proceedings under the MZEA, which has adopted much of the same language as the TZA, though it also differs in many respects.

The Washington Post and other media outlets are reporting that President Obama will nominate Sonia Sotomayor, currently a Second Circuit judge, to replace Justice David Souter on the United States Supreme Court.

On May 18, 2009, the Lansing State Journal published an editorial calling for the Michigan Supreme Court to close its satellite offices in Detroit and Traverse City to save taxpayer dollars.  The Court voted to close its satellite offices in November 2008, and then reversed course in March 2009 after Justice Hathaway replaced Chief Justice Taylor.  On May 24, 2009, the Lansing State Journal published a letter to the editor from Chief Justice Kelly defending the decision to maintain the satellite offices because of the expense to the State if the Court would vacate its state-owned building in Detroit.  Chief Justice Kelly’s defense of maintaining satellite offices is set forth more fully in her earlier statement regarding the decision.

On Friday, May 22, 2009, the Michigan Supreme Court denied applications for leave to appeal in two cases, and vacated its previous order granting leave in People v. Fisher, Case No. 136591, a case in which the Court had already accepted merits briefing and held oral argument.  Justice Weaver dissented from the order in Fisher, as did Justice Young (joined by Justice Corrigan).  All three Justices would have reversed the Court of Appeals opinion, which held that a police officer’s entry into a defendant’s home was unlawful and not saved by the emergency aid exception to the Fourth Amendment of the U.S. Constitution.  Our earlier summary of the issues in Fisher is here.

The Court of Appeals, in Liparoto Construction, Inc. v. General Shale Brick, Inc., No. 282920, a published opinion, affirmed the grant of summary judgment in favor of a brick supplier (Lincoln Brick), a brick manufacturer (General Shale), and an insurer (State Auto).  The claims of the plaintiff, a general contractor, arose after homeowners discovered acid stains on the brick exterior of the house the plaintiff built. 

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In Priority Health v. Commissioner of the Office of Financial and Insurance Services, No. 278373, a published opinion, the Court of Appeals held yesterday that the Small Employer Group Health Coverage Act does not allow an HMO to impose minimum contribution requirements on employers as a condition to obtaining and maintaining a health benefit plan.  The Court of Appeals concluded that requiring an employer to contribute certain minimum amounts—such as either 75% of the single premium amount or 50% of the total premium amount—was not consistent with the statutory command that carriers shall issue a health plan to any small employer that agrees (1) to make “the required premium payments” and (2) to satisfy “other reasonable provisions of the health benefit plan.”  This case is a likely candidate for review by the Michigan Supreme Court because it presents a question of statutory interpretation and it originally reached the Court of Appeals on remand from the Michigan Supreme Court with instructions to consider the case as if the Court of Appeals had granted the appeal.  Read more »

On May 19, 2009, the Michigan Court of Appeals released its published opinion in Averill v. Dauterman, No. 283129, confirming that fraternal benefit societies are not derivatively liable for their officers’ or directors’ breach of fiduciary duties.  Only the attorney general, upon request of the commissioner of the Office of Financial and Insurance Services (the “Commissioner”), may file suit against a fraternal benefit society for failing to comply with its duties.  MCL §§ 500.8191, 500.8193.  The Court of Appeals opinion may be found here.

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The Michigan Supreme Court has announced that it, the Court of Appeals, and the State Court Administrative Office (SCAO) will take six mandatory furlough days by the end of the fiscal year.  The furlough days will fall on the following dates: 

• Friday, June 19
• Monday, July 6
• Friday, July 24
• Friday, August 7
• Friday, August 21
• Friday, September 4

On these days, both the Supreme Court Clerk’s Office and the Court of Appeals’ Clerk’s Office will be closed and so will not be accepting filings.  The furlough days will be treated as court holidays for the purpose of filing deadlines, which means that any filings due on a furlough day will be accepted as timely if received on the next regular business day.  The Court’s press release is available here.

On May 19, 2009, the Michigan Court of Appeals published an opinion in People v. Anderson, Case No. 276639, holding that a defendant convicted of aggravated assault was required to register as a sex offender under MCL § 28.722(e)(xi) because the defendant was convicted of a state-law or municipal-ordinance violation, the victim of the violation was under 18 years of age, and the violation constituted a sexual offense.  To determine whether an offense constitutes a sexual offense for purposes of the Sex Offender Registration Act (SORA), the court held that a trial court is not bound by the legal elements of the offense, but rather must consider the particular facts of the case.  A copy of the opinion can be found here. Read more »

On May 19, 2009, the Court of Appeals approved publication of its February 2009 opinion  in Wormsbacher v. Phillip R. Seaver Title Co., Inc., holding that Michigan law does not recognize a tort claim against a title insurance company.  The original post on this opinion can be found here. 

On May 19, 2009, the Michigan Supreme Court issued two orders.  First, the Court denied the appellant’s motion for reconsideration in Petersen v. Department of Corrections, No. 138800.  The Court held that the May 1, 2009 order denying the appellant’s motion to waive the fiing fees, which was the focus of the appellant’s motion, had not been erroneously entered.  MCL § 600.2963 requires that a prisoner pursuing a civil action must pay filing fees.  The Court directed the appellant to submit the partial entry fee within 21 days.  A copy of the Court’s order can be found here.

Second, in People v. McGraw, No. 132876, the Court granted the motion by the appellee for an extension of time for filing their brief on appeal.  The Court’s order can be found here.  Our summary of the issues presented in People v. McGraw can be found here.

For those of you who are interested in reading the entire transcript of our interview with Chief Justice Kelly, you can download the entire transcript here. 

We again thank Chief Justice Kelly for agreeing to allow us to interview her and share her insights.

Former Chief Justice Taylor has remarked that the Justices do not discuss pending cases before oral argument.  We asked Chief Justice Kelly about whether there is communication about cases before argument, and she explained that although the Justices do not meet before oral argument to discuss any given case, each case is discussed at least once before leave is granted and may be the subject of internal memoranda among the justices.

OCJ Blog:  Is it true that the justices never discuss a case amongst themselves before the argument?

CJ Kelly:  You realize we always discuss them many times in the sense that by the time they get to oral argument they will have gone through probably a number of conferences.  The initial conference after the case comes in on application, and then sometimes a whole series of conferences before the decision is made whether to grant leave.  Now maybe from the time the decision to grant is made until oral argument there may be no group discussion on it at all.  Usually there’s no discussion just before oral argument on the cases among the seven of us.  Read more »

On Friday, May 15, 2009, the Michigan Supreme Court denied leave to appeal in one case.