One Court of Justice

On Friday, October 29, 2010, the Michigan Supreme Court decided In re Certified Question (Waeschle v. Oakland County Medical Examiner), No. 140263.  The Court held that a decedent’s next of kin do not have a right to possess the decedent’s brain that had been removed from the body as part of a lawful autopsy.  Justices Young and Davis separately dissented because they did not believe that the Court should have addressed the certified question. Read more »

Two judgment creditors properly filed a judgment lien against a debtor’s real estate, but when the judgment debtor sold the property to a third party, the debtor did not use the proceeds from the sale to pay off the judgment.  Wanting to get their money from the third party, who was on constructive notice of the lien, the judgment creditors then sought to foreclose on the property under § 2819 of the Michigan Judgment Lien Act (MJLA), MCL 600.2819, and also under MCL 600.6018.  The trial court concluded that the third party had no obligation to make sure the creditors were paid out of the sale proceeds.  The court then dismissed the judgment creditors’ claims and discharged the judgment lien, but did not address MCL 600.6018.

In Thomas v. Dutkavich, No. 293229 (Oct. 28, 2010), the Michigan Court of Appeals, in an opinion by Chief Judge Murphy, concluded that the judgment creditors could not foreclose under the judgment-lien act for two reasons.  First, § 2819 imposes a duty to pay the judgment on the judgment debtor, not on the real-estate purchaser who happens to do business with the debtor.  Second, the judgment-lien act specifically provides that “no right to foreclose a judgment lien [is] created under this chapter.”  MCL 600.2819.  Thus while the judgment lien remained attached to the property—it was error for the trial court to discharge it when the lien had not been paid off—the judgment creditors had no remedy under § 2819.  Section 6018, however, provides that “lands conveyed in fraud of creditors” by a judgment debtor “are subject to execution, levy and sale.”  Accordingly, the Court affirmed in part, reversed in part, and remanded to the trial court for consideration of the latter statute.

In Nason v. State Employees’ Retirement System, No. 290431, the Court of Appeals held that when the state is deciding whether a state employee qualifies for early retirement for a nonduty related injury under MCL § 38.24, it may only consider whether the employee can return to the position held prior to the injury.  If the employee is unable to return to work in his prior capacity, he is considered permanently disabled and entitled to early retirement.  Read more »

On Wednesday, October 27, 2010, the Michigan Supreme Court granted the motion of the State Bar of Michigan Real Property Law Section for an extension of time for filing its brief amicus curiae in the matter of Tus v. Hurt, Case No. 139769.  The Court also granted the Attorney General the opportunity to participate in the oral argument in People v. Dowdy, Case No. 140603.  The Court took substantive action in one criminal and four civil cases which are discussed after the jump. Read more »

In AFSCME Council 25 v County of Wayne, No. 290273, the Court of Appeals held that a collective bargaining agreement, which contained contractual language limiting the right of arbitration to disputes arising “during the term of [the] Agreement,” did not govern a dispute arising after the collective bargaining agreement expired and, thus, the dispute was not arbitrable. Read more »

On October 27, 2010, the Michigan Supreme Court remanded eight cases to the trial court or agency in lieu of granting leave to appeal, remanded two cases to the Court of Appeals in lieu of granting leave to appeal, denied leave to appeal in one hundred and eight cases, remanded as leave granted one case, and denied reconsideration in six cases.

In yet another strange twist in the race for the Michigan Supreme Court, The Grand Rapids Press is reporting that former Justice Weaver recorded the Justices’ case conferences and has prepared a transcript purporting to document an occasion in which Justice Young uttered the “n—-” word.

In Michigan’s Adventure, Inc. v. Dalton Township, No. 292148, the Court of Appeals affirmed an order of the Michigan Tax Tribunal that vacated a special assessment by Dalton Township.  The special assessment would have funded the installation of a sewer line on property owned by Michigan’s Adventure.  The Court found that Michigan’s Adventure followed proper objection procedure when it protested the assessment at a hearing held for the purpose of confirming the special assessment roll, that its appeal to the Tax Tribunal was timely, and that the Tax Tribunal’s decision to vacate the assessment was appropriate.

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After a divorce, a former wife sought and received a personal protection order that prohibited her ex-husband from contacting her, following her, or otherwise appearing in her sight.  The ex-husband apparently obeyed the order, and when it expired after two years, he filed a motion asking the court to vacate the order and to seal the court file (because he believe the order would show up in background checks and harm his efforts to get a job).  The trial court held that it lacked the authority to seal the court order and denied his request.

In Jenson v. Puste, No. 292731 (Oct. 21, 2010), the Court of Appeals affirmed, concluding that MCR 8.119(F)(5) precluded sealing the order.  While MCR 8.119(F)(1) allows the sealing of “court records” if certain criteria are met (including that the movant show good cause  and that no less restrictive means would suffice), MCR 8.119(F)(5) specifically addresses court orders or opinions and provides that “[a] court may not seal a court order or opinion.”  This more specific rule applicable to court order and opinions (which are a specific type of court record) controlled, and its plain language, the Court of Appeals concluded, prohibits sealing a court order.

In King v McPherson Hospital, No. 284436, the Court of Appeals held that a party cannot obtain relief from a final judgment under Mich. Ct. R. 2.612(C)(1)(f) based upon a partially retroactive change or clarification in the law when a final judgment is entered in the case before the date of the change or clarification.  Read more »