One Court of Justice

In Michigan v. Bryant, No. 09-150, the U.S. Supreme Court reversed the decision of the Michigan Supreme Court and held that statements that a mortally wounded gunshot victim made to police officers were not testimonial—and therefore were admissible evidence under the Confrontation Clause—because the circumstances objectively indicated that the primary purpose of the questioning was to enable the police to address an ongoing emergency, not to gather evidence of a past crime. Read more »

We are both pleased and disappointed to announce that Warner Norcross & Judd LLP’s John Bursch has been named Michigan’s solicitor general by Attorney General Schuette.  John established WNJ’s appellate practice group, has received nationwide recognition for his appellate practice, and served as a mentor and friend to all of us at the One Court of Justice blog.  Although we are disappointed that John will be leaving WNJ, we are pleased that the State of Michigan will have strong representation in the state and federal appellate courts.  We wish John the best in his new position.

In President Inn Properties LLC v City of Grand Rapids, the Court of Appeals held that the Tax Tribunal was permitted to (1) revisit the credibility of the petitioner’s appraiser and the weight assigned to his appraisals; (2) select a valuation theory other than the income-capitalization method for income producing property; and (3) adopt the existing valuations of property on the assessment rolls so long as there was competent and substantial evidence in the record supporting the tribunal’s determination.

The petitioner, President Inn Properties LLC, challenged the value listed on the respondent’s, City of Grand Rapids, tax assessment rolls for two parcels of property on which the petitioner operates a hotel.  The petitioner claimed that the value of the property was less than the amount listed.  At a hearing in front of an administrative law judge (ALJ), the petitioner presented expert testimony to support its claim.  The respondent presented its own expert testimony that the value of the property was greater than the amount listed on the assessment rolls.  The ALJ found the petitioner’s expert more credible and adopted the petitioner’s valuation of the property.  The respondent filed objections and the Tax Tribunal reviewed the ALJ’s opinion and order.  The Tax Tribunal ruled that the ALJ gave improper credit to the petitioner’s expert, whose appraisals should have been accorded little or no weight.  The tribunal found that the respondent’s expert should be discounted as well, and it adopted the existing valuations of the property on the tax assessment rolls.

The Court of Appeals affirmed the Tax Tribunal’s final opinion and judgment, but remanded for correction of clerical errors regarding a parcel number and taxable value.  With respect to the tribunal’s assessment of the credibility of the expert witnesses, the court held that, as part of fulfilling its statutory responsibility to reconsider decisions by the ALJ, the tribunal may make its own determination regarding the credibility of witnesses and the weight assigned to evidence.

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The Michigan Supreme Court denied one application for leave to appeal.

In People v Jackson the Court of Appeals held that a conspiracy offense should be classified based on the underlying offense for the scoring of offense variables (OVs) and prior record variables. Defendant pleaded guilty to two  counts  of  second-degree  home  invasion and  one  count  of  conspiracy  to  commit  second-degree  home  invasion. The  trial  court  sentenced  defendant  as  an  habitual  offender  to  concurrent  prison  terms  of  106  months  to  30  years  for  each conviction. Defendant filed a delayed application for leave to appeal alleging various sentencing errors. The Court quickly disposed of defendant’s Blakely argument, noting that People v. Drohan, 475 Mich. 140, 164; 715 N.W.2d 778 (2006) held that Blakely does not apply to Michigan’s indeterminate sentencing scheme.

With regard to OV 13, defendant challenged the scoring of 10 points, arguing that he had not committed 3 or more crimes against a person or property as required by the then existing version of MCL 777.43. The Court of Appeals determined that defendant had indeed committed three crimes against a person or property, since he was convicted of two counts of home invasion and one count of conspiracy to commit home invasion. The Court reasoned that although conspiracy is designated as an offense against public safety in MCL 777.18, its offense class for sentencing purposes should be based on the underlying offense under MCL 777.21(4).

On February 15, 2011, the Court of Appeals published an opinion in People v Cameron, No. 293119, after having originally released it as an unpublished decision.  The Court affirmed the conviction of the defendant on a third-offense domestic violence charge, rejecting the defendant’s appeal arguments.  Most interesting was the Court’s affirmance of the trial court’s decision to allow the prosecution to introduce evidence of prior bad acts of domestic violence by the defendant.  The opinion can be found here.

The Court of Appeals held that it was not an abuse of discretion to allow into evidence testimony about prior domestic assaults on Ms. Yacheson, the victim in this case, and previous attacks on another ex-girlfriend.  MCL 768.27b specifically contemplates that prior domestic assault evidence is admissible unless it fails to meet Rule 403 standards.  The Court of Appeals held that the Legislature intended for such evidence to be admissible to give a full and complete picture of the defendant and shed light on the likelihood that a domestic assault was committed in the charged instance.

Because the trial court gave the necessary instruction that the jury was only to decide whether the defendant committed a crime in this instance, the Court of Appeals was satisfied that any potential unfair prejudice was sufficiently mitigated.  The Court of Appeals also agreed with the trial court that to the extent that the defendant wished to argue that touching of Ms. Yacheson was an “accident,” prior acts were sufficiently probative to outweigh any unfair prejudice.

The defendant also raised arguments that the evidence was insufficient to support a conviction, and that the verdict itself was against the great weight of the evidence.  These are not usually winning arguments, and they were not here.

In Copus v Meemic Insurance Company, the Court of Appeals determined that the computation of work loss benefits under the no-fault act, MCL 500.3101 “does not mandate any sort of temporal correlation between the work and the income.”  The Court of Appeals affirmed the trial court’s award of 12 monthly payments, based on Plaintiff’s annual teaching salary, even though Plaintiff only worked when school was in session. Read more »

In Prins v Michigan State Police, the Court of Appeals held the actual mailing of a letter denying a Freedom of Information Act request, and not the composition of the letter, triggered the running of the 180-day period of limitation.  The Court reversed the circuit court’s grant of summary disposition in favor of defendants.

Plaintiff Prins was pulled over by a Michigan State Trooper and the trooper issued her passenger Jack Elliot a citation for not wearing a seat belt.  Prins submitted a FOIA request to the state police seeking, among other things, the video-recording of the traffic stop.  The state police denied her request in a letter dated July 26, 2008, but post-marked July 29, 2008, stating that the video was no longer available.  Elliot contested the seatbelt citation, and at the October 29, 2008 hearing the prosecutor produced the videotape.  On January 26, 2008, Plaintiff filed a complaint seeking damages for defendants’ violation of FOIA.  The circuit court granted summary disposition for the defendants on the ground that plaintiff’s claim was barred by the 180-day period of limitation under MCL 15.240(1)(b). The Court of Appeals reversed concluding that the 180-day period of limitation commenced when the letter was mailed.  The Court reasoned that “the Legislature intended the public body undertake an affirmative step reasonably calculated to bring the denial notice to the attention of the requesting party.”  It noted that “[t]his construction of the FOIA prevents a public body’s inadvertent failure to timely mail a denial letter from unduly shortening the 180-day period of limitation.”

In McKimmy v Melling, the Court of Appeals held that when ruling on a change of domicile motion, a trial court should consider whether a proposed parenting time schedule provides “a realistic opportunity to preserve and foster the parental relationship” and not whether the proposed schedule would be the best plan.

Plaintiff and defendant are the parents of two boys, ages 3 and 4. Plaintiff has sole physical custody, but the parties share joint legal custody, and defendant consistently exercises his weekend parenting time. Plaintiff filed a motion to change domicile under MCL 722.31(4) as she was engaged and her fiancé lived in North Dakota. Prior to the trial court’s decision, plaintiff married, and she and her new husband purchased a home in North Dakota. The trial court denied plaintiff’s motion to change domicile determining that technology could not meaningfully diminish the boys’ separation from their father due to the their ages and that the children’s extended periods of time away from their father could potentially have dire consequences. The Court of Appeals concluded that the trial court improperly analyzed factor (c) of the statutory change of domicile factors, MCL 722.31(4) and vacated the order and remanded for new findings on factor (c). Read more »

On February 8, 2011, the Michigan Court of Appeals published its opinion in Wiggins v. City of Burton, No. 293023. The court held that a drainage pipe installed within a private, storm-detention easement constituted a trespass but not a nuisance, and that both the city, which built the drain, and the landowners, which requested the drain to be built and were granted ownership of the drain after its completion, were liable for the trespass, although the court directed the trial court to consider the city’s governmental-immunity defense on remand. Read more »