One Court of Justice

On Monday, November 30, 2009, the United States Supreme Court granted certiorari in the case of Renico v. Lett, Case. No. 09-338,to decide whether the Michigan Supreme Court erred in denying Reginald Lett’s appeal on double jeopardy grounds where he was convicted of second-degree murder after his first trial resulted in a mistrial when the jury foreperson indicated that the jury could not reach a verdict.  A copy of the order granting Renico’s petition for writ of certiorari is here. Read more »

On November 24, 2009, the Court of Appeals published a per curiam opinion in In re Williams, No. 289260.  Respondent mother and respondent father appealed the trial court’s order terminating their parental rights on the basis of insufficient evidence to support termination.  The Court of Appeals considered the unpreserved claim of constitutional error involving the respondent father’s lack of counsel during the termination hearing, and other proceedings that occurred after the Department of Human Services had manifested its intent to terminate the respondent father’s parental rights.  The Court of Appeals emphasized that a respondent’s right to counsel in parental-rights-termination proceedings are statutory and constitutional.  MCL § 712A.17c(4); MCR 3.915(B)(1)(b).  The Court of Appeals explained that it has expressly recognized that constitutional due process guarantees indigent parents the right to appointed counsel at hearings that may involve parental-rights termination.  The Court of Appeals held that it was not harmless error for the referee to fail to inform respondent father at the permanency planning hearing about his right to counsel, or to refuse to appoint counsel at the respondent father’s termination hearing, because these plain errors affected the fundamental fairness of the proceedings and the respondent father’s substantial rights.  Accordingly, the Court of Appeals reversed the trial court’s order terminating the respondent-father’s parental rights and remanded for further proceedings.  Judge Gleicher’s concurring opinion can be found here.

On November 24, 2009, the Court of Appeals published a 2-1 opinion in Campbell v. Department of Human Services, No. 281592, affirming a judgment for plaintiff entered after a jury trial in a gender discrimination case.  Plaintiff’s gender discrimination claim against her employer was governed by a three-year statute of limitations.  MCL § 600.5805(10).  Defendant argued that evidence of discriminatory acts occurring outside the statute-of-limitations period should have been excluded from trial.  The Court of Appeals held that acts occurring outside the statute-of-limitations period, although not actionable, could nonetheless be used as background evidence to establish a pattern of discrimination in order to prove a timely claim.  The Court of Appeals explained that this evidence is subject to the rules of evidence and applicable law, and may be admitted under the trial court’s sound discretion.  The Court of Appeals emphasized that its holding does not resurrect the continuing-violations doctrine, abolished by the Michigan Supreme Court in 2005, under which a plaintiff could recover based on a prior act occurring outside the statute-of-limitations period.  Judge Murray’s opinion concurring in part and dissenting in part may be found here.

The Court of Appeals has published its opinion in Bronson Methodist Hospital v. Allstate Insurance Company, No. 286087.  In this case, a hospital was trying to recover the medical expenses (incurred in December 2006-January 2007) related to the treatment of an individual injured in an auto accident.  The vehicle involved was uninsured, so the hospital submitted an application to the Michigan Assigned Claims Facility, which in turn assigned the claim to Allstate Insurance Company in January 2008.  Allstate did not pay the claim, and the hospital sued in February 2008.  Generally, there is a one-year statute of limitations to recover such benefits, but there is a statutory exception which allows an assigned claim to be brought within 30 days after the receipt of notice of the assignment.  Thus, the suit was timely.  In addition to establishing a limitations period, the No-Fault Act also establishes a recovery limitation which only allows recovery of benefits for losses incurred within one year before the action begins.  The Court of Appeals concluded that the statutory extension to the limitations period did not similarly extend the recovery period.  Here, the statute only provided that “[a]n action by the claimant shall not be commenced more than 30 days after receipt of notice of the assignment.”  MCL § 500.3174.  There is no language in this provision related to the recovery limitation.  Thus, because the medical expenses in this case were incurred more than one year before the action commenced, the Hospital is no longer entitled to recover those losses.

On November 24, 2009, the Court of Appeals published its opinion in Hastings Mutual Ins. Co. v. Safety King Inc., No. 286392.  The Court of Appeals reversed the Oakland County Circuit Court’s decision that the pollution exclusion contained in an insurance policy barred coverage for a third party’s claim against an insured because that claim arose from the insured’s duct cleaning services, where the active cleaning ingredient qualified as a pesticide.  The Court of Appeals pointed out that while the ingredient at issue in this case might technically be a “pesticide,” it is also a “ubiquitous antimicrobial agent found in a variety of cosmetic and personal hygiene products.”  The definition of “pollutant,” however, was limited to a contaminant or irritant and does not specifically reference pesticides.   The Court of Appeals reasoned that an ingredient that is not generally expected to cause injury through its normal use, does not meet that definition.  Because the ingredient at issue did not qualify as a pollutant, the pollution exclusion was not triggered, and summary disposition in favor of the insurer was not warranted.

On November 24, the MSC issued one order, denying a prisoner’s motion to waive the filing fee.

On Monday, November 23, 2009, the Michigan Supreme Court denied 145 applications for leave to appeal; denied 5 motions for reconsideration; and held University of Michigan Regents v. Automobile Club Ins. Assoc., No. 138725, in abeyance pending a decision in University of Michigan Regents v. Titan Ins. Co., No. 136905 (our discussion of Titan Ins. can be found here).

The Court also remanded Rousseau v. Masuga, No. 138983-4, a medical malpractice case, for reconsideration in light of the Court’s recedent decisions in Bush v. Shabahang, 484 Mich 156 (2009), and Potter v. McLeary, 484 Mich. 397 (2009) (see our posts here and here); remanded People v. Gregory, No. 139571, to correct a clerical error in a criminal sentence; and remanded People v. Giddings, No. 139211, for the administerial determination of whether the defendant’s presentence report was sent to the Department of Corrections.

The Michigan Court of Appeals reversed the trial court’s dismissal for lack of subject-matter jurisdiction a case involving a county prosecutor’s investigation of possible violations of the Michigan Campaign Finance Act (MCFA).  In Grand Traverse County Prosecutor v. Meijer, Inc. (In re Investigative Subpoenas), No. 284993, the Court of Appeals rejected the defendants’ argument that the MCFA grants exclusive jurisdiction to the secretary of state to investigate and enforce campaign finance laws.  The defendants argued that because the MCFA grants the secretary of state certain powers to investigate, enforce, and attempt to prevent campaign finance improprieties and assess civil fines, and states that the secretary may refer the enforcement of a criminal penalty to the attorney general, such grant of authority divests local prosecutors of the power to prosecute local campaign finance law crimes.  The Court determined that the statute only granted authority to the secretary of state to investigate and correct civil infractions, but not to prosecute criminal violations of the act.  The Court of Appeals concluded that the statute created two distinct methods of enforcing the MCFA: civil actions pursued by the secretary of state and criminal prosecutions initiated by county prosecutors or the attorney general.  Neither enforcement mechanism is exclusive.

On November 20, 2009, the Michigan Supreme Court ordered oral arguments on the applications for leave to appeal in three cases, peremptorily reversed the Court of Appeals in a sentencing case, remanded another sentencing case for further consideration in light of People v. Jackson, 483 Mich. 271 (2009), and took other action in 9 cases.

In People v. Abdullah, the Court granted a MOA to determine whether to review the Court of Appeals’ decision reversing the defendant’s conviction for third-degree criminal sexual conduct (“CSC III”) because that offense is not a lesser included offense to first-degree criminal sexual conduct (“CSC I”).  Specifically, on the facts presented, the Court of Appeals concluded that CSC III required the defendant to have accomplished sexual penetration by force or coercion which was not required for a conviction under the charged offense of CSC I.

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On Friday, November 20, 2009, the Sixth Circuit Court of Appeals published its opinion in White v. Howes, Case No. 08-1458.   In White, the court considered whether a defendant’s conviction for both felon in possession of a firearm in violation of MCL § 750.224f, and possession of a firearm during commission of a felony (“felony firearm”) in violation of MCL § 750.227b(1) violated the Double Jeopardy Clause.   After his convictions on both counts, the defendant filed a petition for habeas corpus.  The Sixth Circuit held that because the Michigan legislature expressly intended to provide two punishments for the same conduct, the Double Jeopardy Clause does not bar conviction under both statutes. Read more »