One Court of Justice

The Traverse City Record-Eagle is reporting that Justice Weaver has announced that she will seek re-election to the Michigan Supreme Court as an independent candidate.  Justice Weaver reportedly filed an affidavit with the Secretary of State’s office today to place her name on the November ballot. 

Justice Weaver’s decision to run as an independent frees the Republicans from having to determine whether to nominate her as a Republican candidate.  Justice Young is also expected to seek and receive one of the two Republican nominations.  State Republicans will now have to determine whether to nominate a candidate to oppose Justice Weaver.  Court of Appeals Judge Jane Markey and Wayne County Circuit Judge Mary Beth Kelly are both seeking the Republican nomination. 

Circuit Court Judges Robert Colombo, Shelia Johnson, Denise Langford-Morris, and Deborah Thomas are all seeking the Democratic nominations.   

In D’Andrea v. AT&T, No. 288483, defendant AT&T possessed a six-foot “Easement for Public Utilities” at the back of plaintiffs’ lot.  In the 1970s, AT&T installed a “crossbox cabinet” on the easement.  In 2005, AT&T replaced that cabinet with a new one, and also added additional cabinets, both above and beneath the ground.  The cabinets were placed on a concrete slab surrounded by bushes, and AT&T declined plaintiffs’ request to move the cabinets off of Plaintiffs’ property.  All of these items were within the easement’s boundaries, but plaintiffs complained that the new cabinets materially increased the burden on their property, because the new cabinets were bigger, reduced plaintiffs’ useable backyard area by almost half, and diminished the market value of the property.  The trial court granted summary disposition to AT&T.

The Court of Appeals reversed, holding that a fact finder could determine that AT&T’s activities went beyond the reasonable exercise of the use granted by the easement, even if those activities were confined entirely to the easement.   In reaching that conclusion, the Court rejected AT&T’s argument that the Land Division Act was relevant to the inquiry, and also rejected AT&T’s reliance on the fact that the local city and county authorities issued building permits for the cabinets.  The case was remanded for further proceedings.

On Monday, June 28, 2010, the Michigan Supreme Court (1) denied four bypass applications for leave; (2) denied 170 applications for leave; (3) denied six motions for reconsideration; (4) denied one motion for peremptory reversal; (5) held three cases in abeyance pending a decision in similar cases; (6) granted a motion to submit supplemental photographs; and (7) denied one motion for peremptory reversal.  The Court also granted in part the prosecutor’s motion for rehearing in People v. Richmond, No. 136648, stating that the prosecution may refile the charges against the defendant and, if necessary, file an interlocutory appeal to challenge the underlying suppression ruling.  (Our discussion of the Richmond merits opinion can be found here.)  Finally, the Court vacated the Court of Appeals opinion and reinstated an adjudication of delinquency in People v. Abdullah, No. 139586, as the adjudication was properly made under MCR 750.520d(1)(c).

A trial court may not deny a party the use of a peremptory challenge on the basis of the court’s desire to attain a racially proportionate jury, because the selection of jurors based on race violates the equal-protection guarantees of the federal and state constitutions.  So held the Michigan Supreme Court in Pellegrino v. Ampco System Parking, No. 137111, setting aside a $14.9 million jury verdict and remanding for a new trial.

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The Michigan Supreme Court took substantive action in six cases:

In re P.M. (Department of Human Services v. Mullins), No. 140983:  The Court granted oral argument on the application.

Iron Mountain Information Management, Inc. v. Naftaly, Nos. 140817-140824:  The Court granted leave to appeal limited to the issue of whether the circuit courts have subject-matter jurisdiction over appeals from a decision of the state tax commission regarding property classification.  The Court ordered that the case be argued and submitted with Midland Cogeneration Venture Ltd. v. Naftaly, No. 140814.

Midland Cogeneration Venture Ltd. v. Naftaly, No. 140814:  The Court granted leave to appeal to address the same issue as Iron Mountain.

People v. McCauley, No. 140422:  The Court ordered oral argument on the application to address whether a defendant can raise a challenge to the effective assistance of his counsel during the plea-bargaining process where the defendant rejected the plea offer and subsequently received a fair trial, and if so, what remedies should be available to the defendant.  The Court invited amicus briefs from the Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan.  Our post on the Court of Appeals’ decision conditionally vacating the defendant’s sentence is here.

People v. Breidenbach, No. 140153:  The Court ordered oral argument on the application to address three issues:  (1) whether the Court should reconsider the rule of People v. Helzer, 404 Mich. 410 (1978), that a determination of sexual delinquency is a separate, alternative form of sentencing rather than a penalty enhancement; (2) whether the defendant waived or forfeited the right to a second jury’s determination of his status as a sexual delinquent; and (3) whether any error was harmless or harmless beyond a reasonable doubt.  Again, the Court invited the Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan to submit amicus briefs. 

Friend v. Friend, No. 139165:  In lieu of granting leave to appeal after having heard argument on the application, the Court remanded the case to the Houghton County Circuit Court for clarification as to whether the alimony award was alimony in gross or periodic alimony.  The Court further ordered that as a precondition of the trial court clarifying the nature of its award, the plaintiff purge herself of any outstanding findings of contempt within 90 days.  The Court denied leave to appeal on all other issues, including whether the Court should adopt the fugitive-disentitlement doctrine.  Justices Corrigan, Markman, and Young dissented and would have applied the fugitive-disentitlement doctrine and condition consideration of the appeal on plaintiff’s compliance with trial court’s orders.

The Court also denied leave to appeal in six cases.

The Court declined to exercise superintending control in Brady v. Attorney Grievance Commission, No. 140409.  This case arises out of the Attorney Grievance Commission’s dismissal of plaintiff’s request for the investigation of Paul Fisher, the Executive Director of the Judicial Tenure Commission, regarding his actions during the disciplinary proceeding against Judge Steven Servaas.  In a strongly worded non-participating opinion by Justice Weaver, the Justice responds to the recent grievance filed against her by Justices Corrigan, Markman, and Young concerning whether she violated A.O. 2006-08 by revealing the Court’s deliberations in the case of In re Servaas.   In particular, Justice Weaver reasoned that there was nothing unethical about her October 2009 meeting with Mr. Muth, Judge Servaas’ attorney, because she was not aware at the time that the grievance filed against Mr. Fisher by Mr. Muth could be pending with the Attorney Grievance Commission.  Yet Justice Weaver also reveals that the Justices’ initial conference vote in the Servaas matter was 6-1, but that the involvement of the Supreme Court Administrative Office may have swayed some of the Justices’ positions.  Justice Weaver further references her April 20, 2010 disqualification letter sent to the parties in the case and her decision not to participate in this complaint after the Attorney Grievance Commission failed to waive her disqualification.  The April 20, 2009 letter is reprinted as part of the non-participating opinion.  Justices Corrigan, Markman, and Young filed a separate opinion setting forth their justifications for their action.  Justice Hathaway separately dissented to indicate that she would have exercised superintending control.

Our previous post discussing the JTC grievance against Justice Weaver is here.  

WNJ Disclaimer:  Two of the plaintiffs in this case are affiliated with Warner Norcross & Judd LLP.

On Wednesday, June 23, 2010, the Michigan Supreme Court denied seventeen applications for leave to appeal and one motion for reconsideration.  In addition, the Court granted various procedural motions including several motions for leave to submit amicus curiae briefs.  The Court also took substantive action in four cases.  In Harrington v. Fatchett-Harrington, No. 140833, in lieu of granting leave to appeal, the Court vacated the order of the Court of Appeals which had dismissed plaintiff’s claim of appeal and remanded the case to the Court of Appeals for reinstatement of the appeal.  In Woodward Parking Co. v. City of Detroit, No. 140073, the Court vacated the Court of Appeals’ decision in light of the Court’s decision in Briggs Tax Service, LLC. v. Detroit Public Schools.  In People v. LaRose, No. 139699, the Court remanded the case to the Court of Appeals after determining that the defendant-appellant was deprived of a direct appeal as a result of ineffective assistance of counsel.  Finally, the Court granted leave to appeal in Hamed v. Wayne County, No. 139505 to clarify the application of Michigan’s Civil Rights Act to prisoners.  The Woodward Parking, LaRose, and Hamed cases are discussed further after the jump. Read more »

On Tuesday, June 22, 2010, the Michigan Court of Appeals published its opinion in Rose v. Rose, Case No. 286568.  In Rose, the Court of Appeals considered when a trial court may modify a party’s spousal support obligation, under MCR 2.612(C)(1), where the Judgment of Divorce provides that the spousal support award is nonmodifiable.  Ultimately, the Court of Appeals concluded that the failure of defendant’s business did not constitute an extraordinary circumstance allowing the Court to modify the spousal support award, pursuant to MCR 2.612(C)(1)(f), where vacating this provision of the Judgment of Divorce would detrimentally affect plaintiff-wife’s substantial rights.  A copy of the Court’s opinion is here.  Our previous post discussing the oral argument in Rose can be found here. Read more »

The Department of Human Services (the “Department”) sent the applicant a notice which stated that her application for Medicaid disability benefits was denied and provided a reason for the denial.  The notice also contained several irrelevant citations to Department manuals that did not relate to disability determinations. The back of the notice stated that the applicant could request a hearing within 90 days of the date of the notice.  The applicant requested a hearing 368 days after the date of the notice and claimed that the incorrect citations to the manuals made the notice inadequate and that the 90-day period was therefore not triggered.  The hearing referee dismissed the applicant’s request for a hearing as untimely.  The applicant filed a petition for review with the circuit court, which agreed with the applicant’s reasoning.  On June 22, 2010, the Court of Appeals, in a published per curiam opinion in Schreur v. Department of Human Services, No. 285792, reversed the circuit court’s decision.  Interpreting federal regulations and the Michigan Administrative Code, the Court of Appeals relied on the distinction between “applicants” and “recipients” to conclude that the Department was not required to inform an applicant of the specific regulations that supported its denial.  Further, the Court of Appeals concluded that applicants are not bound by the 90-day request limitation applicable to recipients, but rather are allowed a “reasonable time” to request a hearing.  Here, the Court of Appeals determined that 368 days was not a reasonable time.

On June 22, 2010, the Court of Appeals released Judge Borrello’s opinion in People v. Bryant, No. 280073,involving a claim that a defendant’s Sixth Amendment right to an impartial jury, drawn from a fair cross-section of the community, was violated when his Kent County jury venire of 42 only had one African-American.  This argument had been made previously immediately after the defendant’s conviction, and the Court of Appeals had remanded the matter for an evidentiary hearing.  The trial court conducted such hearings, but found no Sixth Amendment violation and upheld the conviction.  The Court of Appeals disagreed, finding an unintentional computer error systematically caused underrepresentation of African-Americans on jury venires, and reversed and remanded the case for a new trial.

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