One Court of Justice

On Friday, August 28, 2009, the Michigan Supreme Court denied a prisoner’s motion to waive fees.

In our interview with Chief Judge Saad, we asked him for his thoughts on writing persuasive applications for interlocutory appeal.  Because such applications ask the court of appeals to grant discretionary review of a case that is still in midstream, it is important to do two things.  First, the application must grab the attention of the court and explain why the case is important.  Second, the application must explain why the court should take the case now, at the interlocutory stage, rather than after a final judgment.  The advocate, Chief Judge Saad explained, should therefore spell out what the consequences would be to the party (and more generally) if the court declined to grant the application.  After accomplishing these two tasks in the introduction of the application, the application should also sketch out a road map of the case as concisely and intelligently as possible.

In People v. Cook, No. 280600 (published Aug. 27, 2009), the Court of Appeals held that the trial court deprived the criminal defendant of his right to a jury trial.  At the beginning of Cook’s trial, his attorney signed a jury-trial waiver and stated in open court that Cook had agreed to waive his right to a jury trial.  When the trial court judge asked Cook, however, whether he had agreed to this waiver, Cook answered “no.”  Nonetheless, a bench trial was held, and the judge convicted Cook of several crimes related to possessing controlled substances.  Cook appealed, arguing that the trial court had deprived him of his Sixth Amendment right to a jury trial.

The Court held that the attorney’s waiver was not sufficient.  An attorney cannot waive his client’s right to a jury trial without his client’s “fully informed and publicly acknowledged consent.”  The record provided no evidence of Cook’s consent—indeed, he objected on the record—and so his right to a jury trial had not  been waived.  The Court further held that this was a structural error, not subject to harmless-error analysis and therefore required automatic reversal. Accordingly, the Court remanded the case for a jury trial or for a new bench trial after a valid jury-trial waiver.  The Court’s opinion can be found here.

During our interview with Chief Judge Saad, he offered a few insights into effective appellate advocacy.  At the outset, the advocate should explain why the issue of the case is important and whether the decision below was consistent with the direction of the law.  Given the large number of cases that judges on the Court of Appeals hear and the wide spectrum of legal issues they confront, explaining the framework for the area of law in the case at hand is vital, especially in complicated areas.  While the advocate may be a specialist in the area, odds are that all three judges on the panel are not, so providing an accurate overview of the field may be necessary to provide the appropriate context for the specific issues.  Furthermore, it is helpful to the judges to identify succinctly the consequences of the various decisions in the case and to weave the facts of the case into the explanation of the law. Read more »

On the topic of whether advocates should cite unpublished cases from the Michigan Court of Appeals, Chief Judge Saad thought it was helpful to cite such cases for a simple reason:  he likes to know what his colleagues are thinking.

Chief Judge Saad spent some time with us discussing how opinions are assigned to judges on the Court of Appeals and the process by which cases are decided.  He explained that each case subject to an appeal by right or in which leave has been granted to appeal is randomly assigned to a panel of judges.  Before oral argument, the case is reviewed by the staff attorneys who provide a report giving an objective analysis of the case.  For each sitting of a panel, all three judges are given equal writing responsibility.  So, for example, if a panel will hear 27 cases, each judge would be assigned 9 cases.  The opinion assignments are made before argument.  In a relatively small number of cases where the resolution seems straightforward, the writing judge may circulate a draft opinion to the other judges on the panel before oral argument. Read more »

Chief Judge Saad graciously agreed to sit down with us for an informal interview a few weeks ago.  Over the next few days, we will post some of his thoughts regarding applications for leave to appeal to the Court of Appeals, effective appellate advocacy, and how the Court of Appeals decides cases.  First, a little about Chief Judge Saad’s background: Read more »

The Michigan Court of Appeals has published its opinion in Janson v. Sajewski Funeral Home, Inc., No. 284607.  In that case the trial court awarded summary disposition to the defendant in a slip and fall case on the grounds that the black ice which caused the fall was an open and obvious danger.   The Court of Appeals reversed, rejecting the notion that “black ice in Michigan is open and obvious as a matter of law.”  The Court of Appeals cited facts from the record emphasizing that the black ice was not visible, and concluded that the application of the open and obvious doctrine would not be appropriate.

On August 25, 2009, the Court of Appeals published its opinion in Caiger v. Oakley, No. 285549, which overturned a trial court’s award of summary disposition of defendants in an auto accident case.  The trial court awarded summary disposition on the basis that plaintiff had failed to demonstrate a threshold injury.  In reversing, the Court of Appeals pointed out that the plaintiff had knee replacement surgery and had presented medical evidence that the accident had led to the chronic pain which necessitated the surgery.  The Court of Appeals also noted that although plaintiff had given up his profession as a painter for financial reasons, the accident-related injury and subsequent physician restrictions would prevent him from ever returning to work as a painter in better economic times.  Considering that evidence in combination with evidence of continuing chronic pain which also prevented plaintiff’s enjoyment of his woodworking hobby, the Court of Appeals concluded that plaintiff had established an objectively manifested impairment of an important bodily function.

On August 25, 2009, the Michigan Court of Appeals published an opinion in People v. Buie, No. 278732, holding, in a case of first impression for Michigan, that the United States Supreme Court’s Confrontation Clause analysis in Maryland v. Craig, 497 U.S. 836 (1990), applies to two-way video conferencing of witnesses.  The Court of Appeals followed the majority view of the federal circuits in concluding that two-way video conferencing raises similar concerns under the Confrontation Clause as one-way video conferencing, even though it permits the witness to view the defendant, and therefore extended the holding in Craig to two-way conferencing.  Under Craig, the trial court must conduct a hearing and make a specific finding that “the procedure is necessary to further a public policy or state interest important enough to outweigh the defendant’s constitutional right to confrontation and that it preserves all of the other elements of the Confrontation Clause” (oath, cross-examination, and observation of demeanor by trier of fact). Read more »

In an editorial published today, the Lansing State Journal urged the Legislature to revisit the enabling legislation for the Michigan Catastrophic Claims Association, the fund that pays for catastrophic injuries sustained in auto accidents.  A line item on every driver’s insurance bill ($124.89 this past year) provides the monies for the fund.  In U.S. Fidelity Ins. & Guaranty Co. v. Michigan Catastrophic Claims Ass’n, the Michigan Supreme Court held that the fund is responsible for paying all claims for reimbursement, rather than only those claims that are “reasonable.”  (See our post on the opinion here.)  The LSJ said that it is now up to the Legislature “to protect the MCCA and Michigan residents” from unreasonable claims.  The complete editorial can be found here.

On Thursday, August 20, 2009, the Michigan Supreme Court granted a motion for reconsideration in McCormick v. Carrier, No. 136738.  McCormick was injured when a coworker backed a truck over his ankle.  After two surgeries to repair his ankle, McCormick was able to return to work without medical restrictions.  He sued for damages, but the Court of Appeals held that his injury did not meet the “serious impairment of bodily function” threshold that Michigan’s No-Fault Act, MCL § 500.3135(1), and Kreiner v. Fisher, 683 N.W.2d 611 (Mich. 2004), require for recovery of noneconomic damages.  On reconsideration, the Court will revisit the Kreiner standard for noneconomic-damage recovery in a no-fault action.

Justice Corrigan dissented from the grant, arguing that the change to the Court’s composition (resulting from Justice Hathaway replacing Chief Justice Taylor) does not provide a sufficient reason for ordering reconsideration.  Justice Weaver disagreed, responding in a concurrence that a change in composition does not preclude a majority of the Court from granting reconsideration and stating that “[i]f, for instance, four justices on the newly composed Court conclude that the challenged decision was erroneous, those justices can vote to grant reconsideration.”  The order is available here.

The Court also held four other cases in abeyance pending the Court’s decision in McCormick, dismissed General Motors Corp. from McCormick on the stipulation of the parties, and denied leave to appeal in four cases.

On August 18, 2009, the Michigan Court of Appeals published a split opinion in Ligons v. Crittenton Hospital, No. 278622, dismissing with prejudice the plaintiff’s claims for failure to file an adequate affidavit of merit within the time frame set in the wrongful death savings statute, MCL § 600.5852.  According to the majority, the affidavit failed to explain the “manner in which the breach of the standard of practice or care was the proximate cause of the injury breach,” as required by MCL § 600.2912d.  Because filing the complaint did not toll the savings statute and a revision of the affidavit would not relate back to the original filing, the claims were dismissed with prejudice.  The dissent disagreed, contending that the manner was easily inferred from the other statements in the affidavit, and therefore the affidavit was not insufficient.  The dissent’s opinion is found here. Read more »

On August 18, 2009, the Court of Appeals released its published opinion in Barnard Manufacturing Co., Inc. v. Gates Performance Engineering, Inc., No. 286003.  In this case, the trial court awarded summary disposition to Plaintiff on account stated/contract claims.  Plaintiff supported its motion with invoices and other materials standing for proposition that Plaintiff had supplied goods and services to Defendant and had not been paid.  In response, Defendant only addressed evidence in support of its counterclaims, and did not reference or attach any evidence establishing a disputed fact on Plaintiff’s claims.  On appeal, Defendant argued that, pursuant to MCR 2.116(G)(5), in deciding the motion for summary disposition the trial court was required to consider all the evidence contained in record, and that such evidence established the existence of a material issue of fact.  The Court of Appeals agreed that there was evidence in the record that could have established a material issue of fact, but concluded that the duty was on the party opposing the motion, not the court, to locate and present that evidence.  Thus, because Defendant did not present the necessary evidence to defeat the motion, the Court of Appeals affirmed the award of summary disposition to Plaintiff.

On August 18, 2009, the Court of Appeals published its decision in In re Brandon Gavin Handorf, Case No. 290101.  The Court of Appeals clarified a conflict in unpublished opinions from the Court of Appeals and held that there is no provision in the Adoption Code under which a guardian may consent to the adoption of a child under his or her guardianship, until the termination of the parents’ parental rights.  A copy of the court’s opinion can be found here. Read more »

Following mini-oral argument on the application for leave to appeal, the Michigan Supreme Court held in People v. Lowe, No. 137284 (Aug. 13, 2009), that MCL § 333.7413(2) allows a trial court to double both a defendant’s minimum and maximum sentences.

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The Michigan Supreme Court granted the motion by Edward C. Levy Co. and Michigan Paving & Materials Co. for leave to file an amicus curiae brief in Kyser v. Kasson Township, No. 136680.  The order granting the motion is available here.  Our previous coverage of the application in Kyser can be found here, here, and here.

In a per curiam decision, the Court of Appeals remanded People v. Smelley, No. 274033 (published Aug. 13, 2009), for a new trial following the defendant’s jury convictions on charges of second-degree murder, felon in possession, felony firearm, and assault with intent to do great bodily injury less than murder.  The Court of Appeals based this remand on four separate evidentiary errors: (1) admitting hearsay statements supposedly directed at showing the victim’s state of mind, (2) admitting hearsay statements identifying the defendant as the shooter, (3) admitting evidence of past bad acts by the defendant, and (4) admitting evidence suggesting the defendant fled to another state to avoid arrest.

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On July 31, 2009, the Michigan Supreme Court released its opinion in Hunter v. Hunter, No. 136310.  The Court addressed a conflict in the statutory presumptions of Michigan’s Child Custody Act (“CCA”), MCL § 722.21 et seq.  MCL § 722.25 states that where a custody dispute is between the parents and third parties, the court shall presume that granting the parents’ custody serves the best interests of the child unless the third party proves otherwise by clear and convincing evidence.  MCL § 722.27 states that the court shall not modify an established custodial environment, unless the party seeking the change presents clear and convincing evidence that the change is in the best interests of the child.  These provisions conflict where a parent is seeking to change an established custodial environment.  The Court held that, in this situation, MCL § 722.25 governs, overruling Mason v. Simmons, 704 N.W.2d 104 (Mich. Ct. App. 2005).  Justices Weaver and Corrigan concurred in part and dissented in part.  The Court’s opinion may be found here.

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On Thursday, August 6, 2009, the Michigan Supreme Court denied leave to appeal in 190 cases, denied 16 motions for reconsideration, and dismissed Nixon v. Chrysler LLC, No. 138101, on the stipulation of the parties.  In lieu of granting appeal, the Court remanded People v. Dowdy, No. 138351, to the Court of Appeals for consideration as on leave granted.  Dowdy was charged with several violations of the Sex Offenders Registration Act (SORA): (1) one count of failing to register; (2) one count of refusing or failing to pay a registration fee; and (3) two counts of failing to comply with reporting duties.  Dowdy is a homeless man, making it challenging for him to comply with SORA’s requirements.  The trial court dismissed the charges for insufficient evidence.  The Court of Appeals denied the State’s application for leave to appeal.  Justice Hathaway would have denied leave because the prosecution failed to present sufficient evidence to support its charges.