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.

Read more »

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.

Read more »

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.