One Court of Justice

In the first test of the Michigan Supreme Court’s new recusal standard, the Court denied motions filed by the Fieger law firm to disqualify Justices Corrigan, Markman, and Young.  In Pellegrino v. Ampco Systems Parking, No. 137111, Fieger claimed that these justices had attacked him by name during their election campaigns 10 years ago and had a history of bias against him.  In response to Fieger’s motion, Justice Markman defended his record noting that he had ruled both for and against Fieger’s clients and denied that his judgment would be affected by Feiger’s representation of the plaintiff in Pellegrino.  Justice Markman’s statement is here.  Because Justices Corrigan and Young denied Fieger’s motion before the new recusal rules were adopted, the Court did not address Fieger’s motion as to those justices.  As to Feiger’s motion to disqualify Justice Markman, Chief Justice Kelly and Justice Cavanagh noted that the statements Fieger relied upon were made 10 years ago and concluded that they did not question Justice Markman’s ability to be impartial in Pellegrino.

Justices Weaver and Hathaway concurred, but noted that they would not retroactively apply the Court’s new “appearance of impropriety” standard to actions or statements by justices occurring before the new standard’s adoption.

Justices Corrigan and Young did not participate in the Court’s consideration of the motion to disqualify Justice Markman.

In People v. Gipson,  No. 287324 (Jan. 28, 2010), the Michigan Court of Appeals affirmed Gipson’s convictions for first-degree felony-murder and armed robbery, holding that the trial court properly admitted both Gipson’s statements to police and evidence regarding his “Murder1” tattoo.  The Court’s opinion may be found here.

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On remand from the Michigan Supreme Court, the Court of Appeals determined in Auto-Owners Insurance Co. v. Ferwerda Enterprises, Inc., No. 277574 (Jan. 28, 2010), that the trial court should not have awarded attorney fees against the insurer when the insurer’s argument that no coverage existed was not frivolous.  The Court also reversed the award of penalty interest because the liability of the insurer was reasonably in dispute.  The opinion, authored by Judge O’Connell, is available here.

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On Wednesday January 27, 2010, the Michigan Supreme Court denied 19 applications for leave to appeal, denied the petitioner-appellants’ motion for reconsideration in the case of In re Brandon Gavin Handorf, Case Nos. 139742, 139753, 139754, and adopted the recommendation of the Judicial Tenure Commission in In re Nebel, Case No. 140203, and In re Sanders, Case No. 140202.  The Court also took substantive action in three civil and three criminal cases, which are discussed after the jump. Read more »

On January 26, 2010, the Court of Appeals published an unanimous opinion in Howell Education Association MEA/NEA v. Howell Board of Education, No. 288977.  The intervenor submitted a series of Freedom of Information Act (“FOIA”), MCL § 15.231, requests to defendant Howell Public Schools that included requests for all emails sent to and from three public school teachers.  The trial court had concluded that the teachers’ personal emails are public records subject to FOIA because they are retained by defendants on a computer storage system.  The Court of Appeals reversed the trial court’s decision, explaining that the ”‘mere possession of a record by a public body’ does not render the record a public document.”  Rather, the Court of Appeals held that in order for the emails to be public records, they must have been stored or retained by the defendants in the performance of an official function.  Without some showing that the defendants’ retention of the emails at issue has an official function aside from the retention itself, the Court of Appeals expressly declined to “drastically expand the scope of FOIA.”  Moreover, the Court of Appeals concluded that the teachers’ agreement to the defendants’ acceptable use policy, which gives notice to users that school officials may look at their email and that emails could be subject to release pursuant to a subpoena, nonetheless did not render their personal emails subject to FOIA. 

The Court of Appeals commented on the difficulty of applying a statute, the purpose of which is to promote transparency in government, that was enacted before email technology even existed.  Most importantly, the Court of Appeals emphasized that this question should be resolved by the Legislature, and expressly called upon the Legislature to address it.

On January 26, 2010, the Court of Appeals published its opinion in Weishuhn v. Catholic Diocese of Lansing, No. 287174.  In this case, a teacher at the Catholic St. Mary’s Elementary School filed a lawsuit asserting claims under the Civil Rights Act and Whistleblower Protection Act related to her termination.  The Defendants argued that these statutory claims were barred by the First Amendment, in the form of the “ministerial exception” which bars employment claims that inquire into the motivation of a religious institution’s contested employment decision regarding a “ministerial” employee.  The Court of Appeals affirmed the trial court’s factual conclusion that the teacher was, in fact, a ministerial employee.  The Court of Appeals focused on the nature and extent of the religious instruction she provided to her students, even during nominally secular classes like math, as well as her involvement in religious planning, proselytizing, and liturgical efforts.  Therefore, even though the teacher taught more math classes than religion classes at the time of her dismissal, she could still be considered a ministerial employee.  As such, the termination claims were properly dismissed.  In taking this action, the Court did note “[w]e recognize that it seems unjust that employees of religious institutions can be fired without recourse for reporting illegal activities, particularly given that members of the clergy, as well as teachers, are mandated reporters…However, to conclude otherwise would result in pervasive violations of First Amendment protections.”

After oral argument, the Supreme Court vacated its order granting leave to appeal in Superior Hotels, L.L.C. v. Township of Mackinaw, No. 138696, and denied leave to appeal because the Court was “no longer persuaded that the question should be reviewed.”  The Court originally granted leave to address whether the State Tax Commission has jurisdiction to correct an error in the taxable value of real estate in earlier years where no portion of the property was omitted.

The Court of Appeals concluded that the State Tax Commission did have jurisdiction to correct this type of error, reversing the decision of the Tax Tribunal.  The Court of Appeals’ published decision remains controlling authority on this issue.  Our earlier post on the decision is here.

On Monday, January 25, 2010, the Michigan Supreme Court denied one prisoner motion to waive filing fees; denied two motions for reconsideration; granted one motion for temporary admission; granted two motions to extend briefing deadlines; and granted a motion filed by the Michigan State Bar’s Family Law Section to file an amicus curiae brief in Tkachik v. Mandeville, No. 138460.

In a case that may have significant ramifications for the criminal law bar, the Michigan Supreme Court granted leave to appeal in People v. Lown, No. 139969, to address whether the 180-day rule in Mich. Comp. Laws §§ 780.131(1) and 780.133 is jurisdictional and, if it is, whether delay beyond 180 days is ever permissible.  The 180-day rule requires that a criminal defendant be brought to trial within 180 days after the department of corrections notifies the appropriate prosecuting attorney that the defendant has been imprisoned.  The language of Section 780.133 appears to make the 180-day rule jurisdictional:  “In the event that, within [180 days], action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof.”  (Emphasis added.)  Recognizing the potential effect of this issue, the Court ordered the parties to address whether holding the 180-day requirement is jurisdictional violates the defendant’s constitutional rights when the defendant requests an extension, for example, to retain new counsel.  The Court also ordered the parties to address whether or to what extent the Court’s decision in this matter should have retroactive effect.

The Court of Appeals denied the defendant’s speedy trial appeal.  The Michigan Supreme Court invited the Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan to submit amicus briefs.

On Friday, January 22, 2010, the Michigan Supreme Court granted leave to appeal in Beach v. Township of Lima to address whether a plaintiff who seeks to establish an adverse possession claim that affects property in a recorded plat must bring a claim under the Land Division Act if the plaintiff is not expressly requesting that the plat be vacated, corrected or revised.  The Court of Appeals held that a plaintiff need not bring a claim under the Land Division Act when he or she brings a quiet title action to establish adverse possession because a Land Division Act claim only alters the plat consistent with already existing property interests.  In other words, under the approach adopted by the Court of Appeals, a plaintiff may prevail in a quiet title action and later bring a claim under the Land Division Act to alter the plat–the two claims do not need to be brought simultaneously.  Such an approach has the effect of permitting inaccurate recorded plats.  The Michigan Supreme Court invited the Michigan Municipal League and the Real Property Section of the State Bar of Michigan to submit amicus briefs.  Our earlier post on the Court of Appeals’ decision is here.

Appellate criminal defense practitioners should note Justice Corrigan’s concurrence in People v. Henderson, No. 139375.  In Henderson, the Court of Appeals dismissed the defendant’s appeal because he did not timely file his appeal brief.  The Michigan Supreme Court remanded the case  to the Court of Appeals for consideration as though the defendant’s brief had been timely filed because the delay was solely attributable to the neglect of appellate counsel.  The Court concluded that defendant was deprived of effective assistance of counsel and ordered appellate counsel to pay costs to the Court.  Justice Corrigan concurred recommending that in cases where an attorney fails to timely prosecute a criminal appeal and thereby deprives the defendant of effective assistance of counsel, the Court should refer the negligent counsel to the Attorney Grievance Commission. Read more »