One Court of Justice

On July 30, 2009, the Court of Appeals published its opinion in People v. Gayheart, affirming the appellant’s conviction for first-degree premeditated murder and first-degree felony murder.  The appellant, Dannie Gayheart, argued that because the victim’s body was discovered in Indiana, roughly 100 feet from the Michigan border, insufficient proof existed to support jurisdiction and venue in Michigan.  Further, Gayheart contended that Michigan’s criminal law violated his due process rights by authorizing his trial in Michigan for conduct occurring partly outside the state.  Finally, Gayheart challenged as unduly prejudicial the introduction into evidence of photographs of the victim.  The Court rejected each challenge. Read more »

On July 30, 2009, the Michigan Supreme Court issued its opinion in Jackson v. Estate of Green, No. 136423.  The Court considered two issues:  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 background and the Court of Appeals’ holdings are discussed here.  In plurality opinions, the Court affirmed the results reached by the Court of Appeals. Read more »

On July 30, 2009, the Michigan Court of Appeals issued a published opinion in People v. Patton, No. 283921, holding that a criminal defendant incarcerated in another jurisdiction was not entitled to dismissal of a Michigan charge against him by detainer under the Interstate Agreement on Detainers (IAD), even though the federal authorities violated IAD by failing to inform the defendant of the detainer for six months.  The Court followed the reasoning of five federal circuits (including the Sixth Circuit) and held that because the IAD only expressly provides a remedy of dismissal for certain enumerated violations in Articles IV(e) and V(c), a violation of the requirement in Article III(c) that the defendant be “promptly inform[ed]” of the detainer could not be interpreted to provide a basis for dismissal.  The Court also held that the defendant was not denied his constitutional right to a speedy trial or denied due process by a three-and-a-half-year delay between the filing of the criminal complaint and the issuance of the detainer; and that the defendant was not entitled to credit for time served during the delay.  Read more »

On July 30, 2009, the Michigan Court of Appeals issued a published opinion in USA Cash #1 Inc. v. City of Saginaw, No. 279378.  In 2006, the city of Saginaw enacted an ordinance requiring for-profit, secondhand merchants to report electronically their receipt of used personal property within 48 hours and to pay a $2 fee per transaction.  Two secondhand merchants challenged the ordinance, arguing that the ordinance was invalid for three reasons: (1) the secondhand junk dealers act, MCL § 445.10 et seq., preempted the ordinance; (2) the ordinance violated Michigan’s equal-protection clause; and (3) the ordinance violated the Headlee Amendment, Mich. Const. art.  9, § 31.  The trial court rejected these arguments, upholding the ordinance, and the Court of Appeals affirmed.

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In Cadle Co. v. City of Kentwood, Sixty Second B District Court, Sixty Second B District Judge, No. 279430 (published July 30, 2009), the Court of Appeals concluded that assignees of judgments obtained in small-claims courts cannot participate in post-judgment proceedings and thus cannot obtain writs, garnishments and executions against property to collect on the assigned judgments.  The Court held that the term “prosecuted” in MCL § 600.8407(1), which prohibits assignees from prosecuting claims in the small-claims division, applies to both pre-judgment and post-judgment proceedings.

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The Michigan Supreme Court issued one order yesterday, denying a motion to waive fees in Peoples v. Department of Corrections, No. 139382, and barring the plaintiff from filing further appeals until the fees were paid.

On July 29, 2009, the Michigan Supreme Court issued its opinion in Bush v. Shabahang, Nos. 136617, 136653, and136983, in a 4 to 3 opinion authored by Justice Hathaway.  In Bush, the Court considered 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 Court reversed the Court of Appeals in part, and affirmed the Court of Appeals’ ruling in part, and concluded that the 2004 amendments to MCL §600.5856, significantly clarified the proper role of a NOI and makes it clear that a timely filed NOI tolls the statute of limitations, despite any errors or defects.  Additionally, the Court held that where a defendant fails to make a good-faith attempt to reply to the plaintiff’s NOI, a plaintiff may take advantage of the 154-day waiting period provided in MCL §600.2912b(8).  A copy of the Court’s opinion can be found here. Read more »

On July 29, 2009, the Michigan Supreme Court denied one complaint for superintending control in the matter of Schock v Court of Appeals, Case No. 139203.  Plaintiff had requested that the Court of Appeals allow a media organization to videotape the oral arguments.  The Court held that since oral arguments already occurred on July 14, 2009, and because the Court of Appeals granted Plaintiff’s request to have a camera in the attorney waiting room to “pool in” with the courtroom television camera, the controversy is now moot.   A copy of the Court’s order can be found here.

In a separate concurring opinion, Justice Weaver noted that before this case became moot, she would have denied the complaint for superintending control because the Court can only grant superintending control when the Court of Appeals has violated a clear legal duty.  Here, the Court of Appeals had discretion whether to grant Plaintiff’s request to videotape the oral arguments, and its denial of Plaintiff’s request did not violate a clear legal duty.  Justice Weaver also stated that while she knows Plaintiff personally, she is neither biased nor prejudiced for or against Plaintiff and, therefore, there are no grounds for disqualification.

In a press release issued today, the Michigan Supreme Court announced that it will be collaborating with the State Bar of Michigan to post video online of Michigan Supreme Court oral arguments and conferences within 24 to 28 hours after the hearing or conference.  The “Virtual Court” web page can be found at http://www.michbar.org/courts/virtualcourt.cfm.  The Press Release can be found here.

On July 28, 2009. the Michigan Court of Appeals published an opinion in TMW Enterprises Inc. v. Department of Treasury, No. 284446, holding that an S corporation is a “corporation” within the meaning of section 3(3) of the Single Business Tax Act (SBTA), MCL 208.3(3), and therefore not entitled to the casual-transaction exclusion provided to persons “other than a corporation” in MCL 208.3(2).  Read more »

On July 28, 2009, the Michigan Court of Appeals published an opinion in People v. Payne, No. 280260, holding that it was reversible error for the trial court to admit a laboratory report containing the results of DNA testing without calling the analyst who prepared the report to testify at trial.  The Court held that the admission of reports prepared by a nontestifying analyst violated the defendant’s Sixth Amendment right to confront the witnesses against him, adopting the reasoning in Judge Saad’s previous opinion in People v. Lonsby, 268 Mich. App. 375; 707 N.W.2d 610 (2005), which the Court noted was consistent with the U.S. Supreme Court’s recent opinion in Fogarty v. Department of Transportation, 557 U.S. __, 129 S. Ct. 2527 (2009).  The Court also held that the reports were inadmissible hearsay, and that the error in admitting the reports was not harmless because they were the only evidence that established an essential element of the charges against the defendant.  The Court reversed the defendant’s convictions in two of the four cases before it (Nos. 06-011607-FC and 06-011944-FC) and affirmed his convictions in the other two cases (Nos. 06-011875-FC and 06-012819-FH).  Read more »

On July 28, 2009, the Michigan Supreme Court issued its opinion in People v. Matthew Lloyd McGraw, No. 132876, in a 4 to 3 decision authored by Justice Kelly.  In McGraw, the Court considered 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 concluded that a defendant’s conduct after an offense is completed does not relate back to the sentencing offense for purposes of scoring the offense variable, unless a variable specifically instructs otherwise.  Ultimately, the Court determined that the Defendant’s offense points were improperly enhanced under offense variable 9, for the involvement of “two or more victims,” where this conduct occurred in fleeing from the police after the sentencing offense, breaking and entering, had already concluded.  The Court reversed the decision of the Michigan Court of Appeals and remanded this case back to the circuit court for resentencing consistent with this Court’s ruling.  A copy of the Court’s opinion can be found here. Read more »

On July 28, 2009, the Michigan Supreme Court granted leave to appeal in Department of Human Services v. Mitchell (In re Mitchell), No. 139114; denied leave to appeal in four cases; dismissed Smith v. Ansara Restaurant Group, Inc., No. 137164 on the stipulation of the parties; and reversed the Court of Appeals’ decision in Symons v. Prodinger, No. 137768.

PNC Bank paid over $900,000 in taxes under protest.  Although the payments related to interest earned on loans on property located in Michigan and on unsecured loans provided to Michigan customers, the bank argued the interest was not taxable in Michigan because the bank received the payments on the loans at a mailing address located outside Michigan.  The bank argued that the transactions did not fall within its gross business under the tax statute, MCL § 208.65, because the payments were not “received” within the meaning of the statute.  In PNC Bank National Association v. Department of Treasury, No. 283560 (unpublished, July 23, 2009), the Court of Appeals rejected this interpretation of “received,” noting that nothing within the language of the statute suggests that the bank must have physically come into possession of the cash or check within the borders of Michigan to be taxable.  The Court also noted that the bank’s interpretation ”would set up the perfect tax loophole”:  ”any financial institution could simply avoid paying taxes on interest earned from loans made to Michigan customers or secured by Michigan property simply by requiring its lendees to mail their payment checks to a post office box in South Bend or Toledo.”  Because the bank earned interest as a result of business activity in Michigan, it had to pay Michigan tax on it.  (The tax provision at issue, though in effect at the times relevant to the appeal, was repealed in 2007.)

On July 21, 2009, in addition to reversing its previous, December 2008 opinion in U.S. Fidelity Ins. & Guaranty Co. v. Michigan Catastrophic Claims Ass’n, the Michigan Supreme Court also issued an order denying the Michigan Catastrophic Claims Ass’n (“MCCA”) motion for recusal of Justice Hathaway.  The order and related opinions can be found here.  The MCCA alleged that Justice Hathaway’s spouse, as a practicing plaintiff’s attorney in No-Fault cases, has a direct financial interest in the outcome of the case.  In denying the motion, Justice Hathaway concludes that simply because her husband practices in a particular area of law does not mean that he has a financial interest in the case.  She specifically states, “I have no personal bias or prejudice for or against any party in this matter.  Moreover, neither I nor any member of my immediate family has any real or arguable financial interest in this case.” Read more »

On July 21, the Michigan Supreme Court issued four orders granting leave to file amici briefs, one order granting temporary admission to practice, one order granting extension of the time to file a brief, one order denying reconsideration of an order, one order dismissing on stipulation an application for leave to appeal, and one order denying recusal of Justice Hathaway in United States Fidelity Insurance & Guaranty Co. v. Michigan Catastrophic Claims Assoc., Nos. 133466 and 133468.  A discussion of the decision in U.S. Fidelity can be found here.  Further discussion will follow on the recusal order.

On July 21, 2009, the Michigan Supreme Court in McNeil v. Charlevoix County, No. 134437, unanimously held that the Northwest Michigan Community Health Agency (“NMCHA”), a multicounty district health department, had authority to proumlgate restrictions on smoking in public places and private places of employment that were more stringent than what the Michigan Clean Indoor Air Act (“MCIAA”) requires.  The Court also held 4-3 that it was authorized to enforce those regulations by creating a private cause of action against employers who retaliate against their employees for exercising their rights under those regulations.  The Court adopted and incorporated as part of its own opinion the reasoning of the court of appeals, which liberally construed Part 24 and Part 126 (MCIAA) of the Public Health Code (“PHC”) as granting such authority and concluded its restrictions on the general right to terminate at-will employees was consistent with the public policy exceptions set forth in Suchodolski v. Michigan Consolidated Gas Co., 412 Mich. 692; 316 N.W.2d 710 (1982).  Justices Markman, Corrigan, and Young, concurring in part and dissenting in part, disagreed with the majority’s conclusions that the county had authority to create a private cause of action or that such an action was consistent with Suchodolski. Read more »

On July 21, 2009, the Michigan Supreme Court issued its latest opinion in U.S. Fidelity Ins. & Guaranty Co. v. Michigan Catastrophic Claims Ass’n, Nos. 133466, 133468.  This opinion explicitly reverses the Court’s earlier ruling on these same cases, published on December 29, 2008.  Our blog post discussing that initial opinion can be found here.  Several weeks after the initial opinion, and after Justice Hathaway replaced Chief Justice Taylor on the Court, the Michigan Supreme Court granted rehearing in the case, but declined to require any additional briefing or argument on the case.  Our post on that decision can be found here.  In December 2008, the Court concluded where the No Fault Act requires the Michigan Catastrophic Claims Association (“MCCA”) to indemnify member insurers “for 100% of the amount of ultimate loss sustained under personal protection insurance coverages in excess of [$250,000].”  MCL 500.3104(2), and where the member insurer’s policy to claimants only covers “reasonable charges,” then MCCA has the authority to refuse to indemnify member insurers unreasonable charges paid to claimants.   In this latest opinion, the Court reached the opposite conclusion and found that the MCCA does not have the authority to refuse to indemnify member insurers for unreasonable charges.  As with December 2008 opinion, this was a 4-3 decision.

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On July 21, 2009, the Court of Appeals published its opinion in In re Genevieve Hansen, No. 289903, affirming the termination of a father’s parental rights.  Notably, the Court of Appeals concluded that the although the lower court properly concluded that a statutory ground for termination existed, it erred by not also making a judicial finding regarding whether termination was in the best interest of the child.  The Court of Appeals interpreted the relevant statute (MCL § 712A.19b(5)) provided that termination can only be imposed when there is both a statutory ground for termination and where termination is in the child’s best interest.  Ultimately, the Court in this case concluded that the error was harmless, because the record in this case supported a finding that termination was in the child’s best interest.

On July 21, 2009, the Michigan Court of Appeals published an opinion in People v. Spangler, No., 288632, holding as a matter of first impression that “to determine whether a sexual abuse victim’s statements to a SANE [Sexual Assault Nurse Examiner] are testimonial, the reviewing court must consider the totality of the circumstances of the victim’s statements and determine whether the circumstances objectively indicated that the statements would be available for use in a later prosecution or that the primary purpose of the SANE’s questioning was to establish past events potentially relevant to a later prosecution rather than to meet an ongoing emergency.”  The opinion lists thirteen relevant factors to consider when evaluating the totality of the circumstances.  Because the record was not sufficiently developed to make a proper determination, the Court vacated the lower court’s decision and remanded the case to the trial court for further development and a new decision. Read more »