One Court of Justice

Yesterday, the Michigan Supreme Court issued a unanimous opinion in the consolidated appeal of Briggs Tax Service, LLC v. Detroit Public Schools, Nos. 138168, 138179, 138182, reversing the Court of Appeals and reinstating the decision of the Tax Tribunal dismissing the petitioner’s claims.  Briggs claimed that the defendants had collected property taxes from it for three years for a millage that was not in effect.  The Supreme Court agreed with the Tax Tribunal that the 3-year window in MCL § 211.53a for recovering excess taxes paid because of a mutual mistake of fact by the assessor and taxpayer did not apply.  Instead, the claims had to be filed within 30 days of issuance of the tax bills.  Briggs’ claims were therefore untimely. Read more »

On March 30, 2010, the Supreme Court issued a unanimous decision in Dawe v. Dr. Reuven Bar-Levav & Assocs., P.C., No. 137092, holding that a patient may pursue a common-law, medical-malpractice claim against his or her treating mental-health professional if the professional negligently placed the patient in danger of harm from another patient. The question before the Court was whether MCL § 330.1946 completely abrogated the common-law duty of a mental-health professional to warn or protect others, including patients. In an opinion written by Justice Cavanagh, the Court held that by enacting MCL § 330.1946, the Legislature only intended to limit, not to completely abrogate, the common-law duties of mental-health professionals toward patients based on the “special relationship” between them. A copy of the Court’s opinion can be found here. Read more »

On Wednesday, March 31, 2010, the United States Supreme Court issued its opinion in Padilla v. Kentucky. In a 7-2 opinion which will undoubtedly have significant ramifications within the criminal defense bar, the Court held that defendant’s trial counsel’s failure to warn his client that the client’s guilty plea would subject him to mandatory deportation satisfied the first prong of the ineffective-assistance-of-counsel test articulated in Strickland v. Washington.  Specifically, the Court held that where “the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear.”  Criminal-defense counsel must now inform their clients whether a plea carries with it a risk of deportation.  This case was remanded to the Kentucky courts to consider the second Strickland prong—whether in this specific case Mr. Padilla had been prejudiced by his lawyer’s failure to give that advice.

Justice Alito authored a concurring opinion joined by Chief Justice Roberts.  Justice Scalia wrote the dissenting opinion, in which Justice Thomas joined. 

A copy of the majority, concurring, and dissenting opinions can be found here.

On March 30, 2010, the Court of Appeals published its unanimous opinion in the consolidated cases of Decker v. Rochowiak, Nos. 284155, 285870, and 290633.  In this medical-malpractice case, plaintiff alleges that defendants failed to properly care for, evaluate, treat, and monitor an infant baby’s hypoglycemic condition, which resulted in his injuries.  The Court of Appeals affirmed the trial court’s order granting plaintiff leave to amend the complaint and order denying defendants’ motion for summary disposition.

The plaintiff filed a complaint after serving a notice of intent (NOI) on defendants pursuant to MCL § 600.2912b.  A year and a half later, the plaintiff filed an amended complaint to include 17 allegations of specific ways in which the defendants breached the applicable standards of care.  The Court of Appeals rejected the defendants’ argument that the plaintiff asserted new “theories of malpractice liability” that should be dismissed for lack of notice.  The Court of Appeals determined that the plaintiff did not assert any “new” potential causes of injury.  The Court of Appeals concluded that the purpose of the notice requirement—to promote settlement without litigation—was realized here because the defendants were given notice of the same claims in the NOI and had the opportunity to enter into settlement negotiations regarding those claims.

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On Tuesday, March 30, 2010, the Michigan Court of Appeals published its opinion in People v. Malone, Case No. 286958.  In Malone, the Court considered whether the evidence presented at trial was sufficient to support defendant’s three convictions for stealing or retaining a financial transaction device without consent, in violation of MCL § 750.157n(1), where defendant did not have physical possession of any bank, credit, or debit card belonging to any of the victims, but rather, defendant merely possessed the victim’s personal information.  In a unanimous opinion, the Court affirmed the trial court verdict concluding that, pursuant to the plain language of MCL § 750.157n(1), defendant was not required to possess the physical cards that allowed access to proprietary accounts.  A more detailed discussion of the issues presented in this appeal can be found after the break.  A copy of the Court’s opinion can be found here. Read more »

On March 30, 2010, the Supreme Court issued an opinion in People v. Ronald James Plunkett, No. 138123, in a 4-3 decision by Justice Young, joined by Justices Weaver, Corrigan, and Markman.  This appeal concerned the sufficiency of evidence to bind the defendant over for trial on criminal charges of delivery of heroin and delivery of heroin causing death.  In the case, the defendant, then an attorney, did not directly give the heroin to the decedent.  Both the Court’s opinion and the dissent, authored by Chief Justice Kelly, can be found here.   

In lieu of granting leave to appeal, the bench peremptorily reversed the Court of Appeals’ decision to vacate the district court’s bindover, and it remanded the case for trial.  The Supreme Court held that it was sufficient for bindover at preliminary examination that the defendant had transported a third party, a prostitute named Tracy Corson, to purchase the heroin; supplied the money to buy it; and intended that a purchase occur.  After these events, Corson gave some heroin to a childhood friend, Tiffany Gregory, after inviting her over to the defendant’s apartment.  Gregory died from an accidental overdose from heroin that Corson gave her.

In the majority opinion, Justice Young agreed with the prosecution’s position that actual physical transfer of the heroin from the defendant to Corson was not required to prove “delivery” of heroin.  The Court concluded that probable cause existed to demonstrate that the defendant aided and abetted delivery of heroin from the drug dealer to Corson, enough to show guilt of delivering heroin.  Moreover, the Court held that the plain language of the statute providing additional punishment for those delivering heroin that causes a person’s death supports a conclusion that this crime applies even when the delivery is not directly made to the decedent, as here.

The statute reads: “A person who delivers a schedule 1 or 2 controlled substance . . . to another person in violation of . . . MCL 333.7401 . . . that is consumed by that person or any other person and that causes the death of that person or other person is guilty of a felony punishable by imprisonment for life or any term of years.”  As Justice Young put it, it is enough to merely put the drugs “in the stream of commerce” since the statute does not on its face require that the recipient and the decedent be the same person.  The Court held that it was not necessary that the defendant aided and abetted delivery directly to the decedent, so the defendant’s acts were enough to establish probable cause that he committed both crimes—straight delivery and delivery causing death.

Chief Justice Kelly’s dissent, in which Justices Cavanagh and Hathaway joined, did not agree that merely driving Corson to purchase heroin and paying for the heroin was enough to aid and abet its delivery.  The dissenters argued that those acts were sufficient only for aiding and abetting possession by Corson, not delivery by the drug dealer to Corson.  They also found it crucial that, according to case law, aider and abetter liability arises only when there is proof of some “assistance given to the perpetrator of a crime by words or deeds that are intended to encourage, support, or incite the commission of that crime.”  The dissent argued that this opinion essentially makes the crime of aiding and abetting possession of illicit drugs obsolete, since anyone charged with that could be charged with aiding and abetting delivery under this ruling.

On Tuesday, March 30, 2010, the Michigan Supreme Court denied the prisoner-appellant’s motion to waive filing fees in Hill v. Parole Board, Case No. 140749, for the reason that under MCL § 600.2963, a prisoner pursuing a civil action is liable for filing fees.  However, the Court authorized a payment plan.  A copy of the Court’s order can be found here.

On Monday, March 29, 2010, the Michigan Supreme Court denied 151 applications for leave to appeal, denied 18 motions for reconsideration, dismissed one case on stipulation of the parties, and directed former appellate counsel to file a supplemental brief in People v. LaRose, Case No. 139699, addressing his reason(s) for failing to file a motion for resentencing and application for leave to appeal within the deadlines set forth in MCR 7.205(F).  The Court also issued an order holding the case of Handley v. City of Ann Arbor in abeyance pending a decision in Gadigan v. City of Taylor, Case No. 138323.  Our post on the issues presented in Gadigian can be found here.

The Court also took substantive action in two criminal cases.  In People v. Hiester, Case No. 139563, the Court remanded the case back to the Muskegon County Circuit Court to determine whether sentence credit should be granted under MCL § 769.11b for the time the defendant was imprisoned while awaiting extradition to Michigan. 

In People v. Feliciano, Case No. 139701, in lieu of granting leave to appeal, the Court remanded the case to the Wayne County Circuit Court for entry of an amended Judgment of Sentence.  The Court ruled that the defendant’s 15-to-20 year sentence for burning personal property valued at over $20,000, receiving and concealing stolen property, and disinterment or mutilation of a human body violated the two-thirds rule articulated in People v. Tanner, 387 Mich. 683, 690 (1972) and codified in MCL § 769.34(2)(b).  Under that rule, the minimum term for an indeterminate sentence may not exceed two-thirds of the maximum, even for a third habitual offender.  Here, because the statutory maximum for each of these offenses is 20 years, the longest minimum sentence the defendant could receive is 13 years and 4 months.  The trial court was directed to amend the Judgment of Sentence accordingly.

Today the United States Supreme Court, in Berghuis v. Smith, No. 08-1402, unanimously reversed a decision by the U.S.  Sixth Circuit Court of Appeals.  In so doing, it concluded that the Michigan Supreme Court had reasonably applied federal law concerning whether a Kent County jury in a murder trial was drawn from a fair cross section of the community.  The U.S. Supreme Court, in an opinion by Justice Ginsburg, concluded that the defendant failed to provide evidence that Kent County’s method of selecting its jury pool for the Kent County Circuit Court caused the “systemic exclusion” of African-Americans.  The U.S. Supreme Court also rejected the defendant’s argument that a laundry list of factors (such as the county’s practice of excusing potential jurors based on mere allegations of hardship) led to systemic exclusion.  The case is discussed in greater detail after the jump.

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On March 26, 2010, the Court denied leave to appeal in four cases, including Lighthouse Place Development, LLC v. Moorings Association, No. 139015, in which the Court had granted leave and heard oral argument.  In Lighthouse Place, the Court concluded that the questions presented regarding the standard for slander of title were worthy of review.  Our previous discussion of Lighthouse Place is here.  Justice Corrigan dissented in part and would have adopted the reasoning of Judge Wilder’s dissent from the Court of Appeals’ decision.

The Court also remanded People v. Keller, No. 139133, to the Court of Appeals for consideration on direct appeal because the defendant’s former appellate counsel’s failure to file an application for leave of the defendant’s plea-based conviction was constitutionally ineffective assistance of counsel.  Justice Corrigan would have referred the attorney to the Attorney Grievance Commission.

In Dybata v. County of Wayne, Nos. 283413 & 283414 (published Mar. 25, 2010), the Court of Appeals, in an opinion by Judge Jansen, concluded that Wayne County did not qualify for governmental immunity under MCL § 691.1419 against claims for damages that resulted when sewage backed up into the plaintiffs’ homes after a significant rainfall.  Section 691.1419(1) requires persons intending to sue a state governmental agency to notify the agency in writing within 45 days “of a claim of damage,” or the claim will be barred, and here the plaintiffs did not notify the county of their claims.  But § 691.1419(2) provides that if a person owning property affected by a sewage event notifies “a contacting agency orally or in writing of an event before providing notice of a claim,” the contacting agency shall provide the person with written information concerning where and how to file a claim.  While the county received a list of persons affected by the sewage back-up, the county failed to provide the affected persons with information about how to file a claim.  This failure by the county brought § 691.1419(3) into play, and that section specifically provides that a notice failure does not bar the claims if claimant notified the governmental agency under subsection (2) and if the claimant’s failure to provide notice resulted from the agency’s failure to provide information.  Because the plaintiffs specifically alleged that their failure to provide notice resulted from Wayne County’s failure to provide them with information about how to file a claim, Wayne County was not entitled to immunity under the statute.

On Wednesday, March 24, 2010, the Michigan Supreme Court denied eight applications for leave to appeal, denied one motion for reconsideration, and ordered oral argument on the application for leave to appeal in Janson v. Sajewski Funeral Home, Inc., No. 140071.   The Court also took substantive action in two criminal and two civil cases which are discussed after the jump. Read more »

On March 23, 2010, the Court of Appeals issued an Order vacating its March 9, 2010 Opinion in Alpha Capital Management, Inc v. Rentenbach, No. 287280, and issued a new Opinion.  We previously discussed the March 9, 2010 Opinion here.

On March 23, 2010, the Court of Appeals issued an opinion authored by Judge Sawyer in Persell v. Wertz, No. 288858, partially reversing a jury verdict in favor of the plaintiff homeowners against their next-door neighbor for trespass, nuisance, defamation, and infliction of emotional distress.   The Court dismissed three of the plaintiffs’ four trespass and nuisance claims and remanded for a new trial on the plaintiffs’ claim of infliction of emotional distress, because it was impossible to determine the extent to which the jury relied on the dismissed claims in concluding that the defendant inflicted emotional distress or in assessing damages.

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On March 23, 2010, the Court of Appeals published its earlier January opinion in Doe v. Citizens Insurance Company, No. 288776.  In this case, a plaintiff sought a declaratory judgment that the  homeowners’ insurance policy of a party alleged to be liable for a sexual assault had to defend and indemnify that party in plaintiff’s civil suit.  The Court of Appeals affirmed the trial court’s determination that the insurance policy’s sexual molestation exclusion barred coverage for such claims.  The plaintiff argued that, in this case, the sexual assault was allegedly committed by a minor, and thus there was no intent to injure.  The Court of Appeals found that while intent to injure is a relevant element of some policy exclusions, the sexual molestation exclusion explicitly excludes any injury arising out of a sexual assault, regardless of whether there was an intent to injure.

On Tuesday, March 23, 2010, the Michigan Court of Appeals issued its opinion in Old Republic National Title Co. v. First Metropolitan Title Co., No. 284767, reversing a trial court’s grant of summary disposition regarding contract interpretation.  The contract at issue involved a referral clause that the Court concluded was inherently ambiguous, subject to two conflicting interpretations.  The appellee argued that any ambiguity in the clause should be construed against the drafter, the appellant.  But the Court rejected that approach, holding that such a canon of construction can be applied only after all conventional means of contract interpretation—including consideration of relevant extrinsic evidence—have left the jury unable to discern the parties’ intent.

Disclaimer:  WNJ represented the prevailing plaintiff in this case.

The debate over strict statutory language interpretation took a somewhat unusual, but very polite and respectful, turn in the Court of Appeals’ published opinion on March 16, 2010 in Progressive Michigan Ins. Co. v. William Smith, et al., No. 287505.  Judge Bandstra authored the opinion of the divided panel, which held that the warning notice requirement of MCL § 500.3009(2) for auto insurance policies must be strictly enforced as written, and thus the named driver exclusion here was unenforceable.  Judge Murray concurred, and Judge Markey dissented.  Judge Bandstra’s opinion of the panel can be found here.  Judge Murray’s concurrence can be found here, and Judge Markey’s dissent can be found here. Read more »

On March 18, 2010, the Michigan Supreme Court granted two motions for an extension of time for filing a brief, and four motions for leave to file amicus curiae briefs.  The Court granted the Michigan Manufacturer’s Association and the National Wildlife Federation leave to file amicus curiae briefs in Lansing Schools Education Association v. Lansing Board of Education, No. 138401; the Michigan Municipal League and others leave to file amicus curiae briefs in Gadigian v. City of Taylor, No. 138323; and the Michigan Association for Justice leave to file an amicus curiae brief in University of Michigan Regents v. Titan Insurance Co., No. 136905.  The Court denied one motion to adjourn oral argument, and the Prosecuting Attorneys Association of Michigan’s motion to participate in oral argument in People v. Mardlin, No. 139146.  The Court also closed Hall v. Department of Corrections, No. 140273, for failure to pay the partial filing fee.

The U.S. Supreme Court has gone live with its new website, and it is striking.  With colorful graphics and a much more user-friendly interface, the website is easy on the eyes and will be a great resource for attorneys and non-attorneys alike.  You can visit the new website here.

On Wednesday March 17, 2010, the Michigan Supreme Court denied the plaintiff-appellant’s motion to waive filing fees in Lightningbolt v. Department of Corrections, No. 140665, pursuant to MCL § 600.2963, and administratively closed the case of Arrington v. Department of Corrections, No. 140480, for failure of the plaintiff-appellant to pay the partial filing fee.