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 »

In Foote v. Dow Chemical Co., No. 288294, the Michigan Court of Appeals recently reaffirmed that, where an employer’s handbook disclaims the intent to form a contract with its employees, the employee cannot enforce the employer’s policies in court.  In Foote, the plaintiff was fired after Dow learned that he had failed to disclose that he was having a consensual sexual relationship with a subordinate.  The plaintiff sued claiming that his termination violated Dow’s internal policies.  The Midland County Circuit Court granted summary disposition and held that the plaintiff was an at-will employee who could be terminated for any or no reason.  The Court of Appeals affirmed, concluding that the plaintiff could not distill a contractual right to continued employment from Dow’s employment handbook.

Disclaimer:  WNJ represented the prevailing defendant-appellee, The Dow Chemical Company, in this case.

In Wolf v. City of Detroit, No. 279853 (published Jan. 21, 2010), the Court of Appeals concluded that the solid waste inspection fee imposed by the City of Detroit was not a disguised tax and therefore did not violate the Headlee Amendment, which prohibits imposing a tax without a vote of the City’s electorate.

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As many expected, the United States Supreme Court today issued its opinion in Citizens United v. Federal Election Commission.  In 176 pages of opinions, the Court invalidated a broad variety of restrictions on political contributions, including restraints on what and when for-profit and non-profit corporations may say in federal election campaigns.  A copy of the opinion is here.

At the conclusion of oral arguments in the United States Supreme Court yesterday, it was announced that the Court would return to the bench for a rare special sitting at 10 a.m. this morning.  It is widely speculated that the Court will announce its decision in Citizens United v. Federal Election Commission, the case that could overturn the landmark Austin v. Michigan Chamber of Commerce case which prevented the Michigan Chamber from endorsing Michigan Court of Appeals Judge Bandstra when he was running for the Michigan House of Representatives in 1985.  The Grand Rapids Press article about Judge Bandstra and the Austin decision is here.  Detailed information and the briefs in Citizens United can be found here.

On January 19, 2010, the Court of Appeals published its opinion in People v. McCauley, No. 281197.  The initial issue was alleged ineffective assistance of counsel in connection with a criminal defendant’s rejection of a proposed plea agreement.  Here, the defendant rejected a proposed plea agreement on a murder charge because he knew that, out of the two people that fired gunshots in the incident, he did not shoot the victim.  However, his attorney did not advise him that he still could be convicted of murder under an aiding-and-abetting theory even if he did not fire the fatal shot.  The defendant, who was ultimately convicted at trial, testified that he would not have rejected the plea offer had he known about the possibility of conviction under an aiding-and-abetting theory.  At a post-trial Ginther hearing, the trial court found that these facts established ineffective assistance, and the Court of Appeals agreed.  The more difficult question was remedy.  The Court of Appeals surveyed various federal authorities published regarding similar situations and determined that the appropriate result would be to conditionally vacate the convictions, allow the prosecutor to reinstate the original plea offer and allow the defendant to consider that offer with the help of new counsel.  The Court of Appeals held that if the prosecution wants to offer a less-favorable plea, it would have to overcome a presumption of vindictiveness.  If the prosecution cannot overcome the burden, and will not offer the original plea, the Court of Appeals orders the convictions to be vacated in full.  But, in the unlikely event the defendant still refuses to accept the original plea offer, the convictions will be reinstated.

On January 19, 2010, the Court of Appeals published a 2-1 opinion in People v. Perrault, No. 288540, reversing the trial court’s refusal to suppress evidence obtained by a warrantless search of the defendant’s vehicle.  The defendant was a high school student who was convicted of possession with intent to deliver marijuana.  A tip hotline received an anonymous tip reporting the drug trafficking of a former friend and other alleged drug dealers, including the defendant.  The defendant was described as a male Caucasian junior who sells marijuana from school, his truck, and a particular park in Traverse City.  A few days later, the liaison officer for the high school forwarded the anonymous tip report to an assistant principal of the high school.  The liaison officer testified that he had no information about the defendant or his involvement with drugs other than the anonymous tip.  Likewise, the assistant principal testified that he had no other information other than a vague concern expressed by a junior high school counselor about behavior at the junior high school not specifically related to marijuana.  Read more »

The United States Supreme Court today denied Michigan’s request for an order directing that emergency measures be taken to stop the migration of Asian Carp into Lake Michigan from Illinois waterways.  The Court did not rule on Michigan’s request to reopen a decades-old decree to address the migration issue on the merits.

On Friday, January 15, 2010, the Michigan Supreme Court denied three applications for leave to appeal and dismissed one case pending on application for leave to appeal on the stipulation of the parties.

On January 14, 2010, the Michigan Court of Appeals released its published opinion in the consolidated cases of Michigan’s Adventure, Inc. v. Dalton Township, No. 283770, and Essex v. Dalton Township, No. 283869.  The plaintiffs sought to challenge the validity of the defendants’ special tax assessment (the “Dalton Tax”) in Michigan circuit court.  The Court held that the circuit court did not have jurisdiction; the Michigan Tax Tribunal (“MTT”) had exclusive jurisdiction over the plaintiffs’ claims.  The Court’s opinion may be found here.

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On Wednesday, January 13, 2010, the Michigan Supreme Court dismissed the defendant-appellant’s application for leave to appeal in the matter of People v. Watson, Case Nos. 139624 & 139625, on stipulation of the parties, and granted motions in five cases seeking an extension of time for filing briefs. 

The Court also granted motions for leave to file briefs amicus curiae in two cases.  In Brewer v. A.D. Transportation Express, Inc., Case No. 139068, the Court granted the Michigan Association for Justice’s request to file a brief amicus curiae.  In McCormick v. Carrier, Case No. 136738, the Court granted motions to file briefs amicus curiae that had been filed by the Coalition Protecting Auto No-Fault, the Insurance Institute of Michigan, the Michigan Association for Justice, and the Negligence Section of the State Bar of Michigan.