One Court of Justice

The Detroit News is reporting that Governor Snyder has decided not to fill two vacancies on the Michigan Court of Appeals for budgetary reasons.  The vacancies arose after Judge Bandstra resigned to take the position as legal counsel to Attorney General Bill Schuette and Judge Zahra was appointed to the Michigan Supreme Court.

The Court granted leave in People v Pullen and People v Watkins, denied eleven applications, held two cases in abeyance pending the outcomes of People v Pullen and People v Watkins, and in lieu of granting leave to appeal, the Court reversed the Court of Appeals in two cases and remanded one case to the Court of Appeals.

In People v Pullen, the Court granted leave to address whether MCL 768.27a, which provides that “evidence that the defendant committed another listed offense against a minor is admissible…,” violates a defendant’s due process right to a fair trial, since it does not reference MRE 403.  In Pullen, defendant was charged with two counts of second-degree criminal sexual conduct.  The prosecution sought to introduce a 1989 police report concerning allegations of prior sexual abuse by defendant’s then 16-year-old daughter. The trial court excluded the evidence relying on the MRE 403 balancing test. The Court of Appeals affirmed.

Similarly, in People v Watkins, the Court granted leave to address the constitutionality of MCL 768.27a.  The Court also directed the parties to brief whether MCL 768.27a conflicts with MRE 404(b) ,which provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person….”  In Watkins, the defendant was also convicted several counts of criminal sexual conduct.

The Court denied leave in 72 cases, denied reconsideration in 3 cases, and in lieu of granting leave to appeal, remanded one case to the Oakland Circuit Court with instructions to amend the judgment of sentence in accordance with the Court of Appeals order.

In Michigan Farm Bureau v. Department of Environmental Quality, the Court of Appeals held that DEQ Rule 2196 does not exceed the scope of the DEQ’s statutory rulemaking authority under Michigan’s Natural Resources and Environmental Protection Act (NREPA).  Rule 2196 requires all owners and operators of concentrated animal feeding operations (CAFOs) to obtain a National Pollutant Discharge Elimination System (NPDES) permit or demonstrate that the CAFO has no potential for discharge.  The Court of Appeals determined that DEQ’s duty to “take all appropriate steps to prevent any pollution the [DEQ] considers to be unreasonable and against public interest in view of the existing conditions in any lake, river, stream, or other waters of the state” encompasses the subject matter of Rule 2196.

Plaintiffs, farming associations and farms, filed this action seeking a declaratory judgment that Rule 2196’s requirement that CAFOs either seek and obtain an NPDES permit or demonstrate that they have no potential to discharge is an invalid exercise of DEQ’s rulemaking authority, that it violates the intent of  the Legislature, and that it is arbitrary and capricious.  Plaintiffs moved for summary disposition, and DEQ requested that summary disposition be granted in its favor under MCR 2.116(I)(2).  The trial court granted DEQ summary disposition and the Court of Appeals affirmed. Read more »

The Michigan Attorney General has filed briefs amicus curiae in two appellate cases in an effort to clarify the Michigan Medical Marijuana Act (“MMMA”). 

In People v. Redden, Case No. 142044, the Attorney General filed a brief amicus curiae opposing the defendant’s application for leave to appeal in the Michigan Supreme Court.  Defendants Redden and Clark were arrested after police found one and one-half ounces of marijuana and 21 marijuana plants at their residence.  The district court dismissed for each of the two defendants the single count of manufacturing 20 or more but less than 200 marijuana plants holding the defendants were qualified patients entitled to possess and use marijuana pursuant to section 8 of the MMMA.  The circuit court reversed this decision holding that the district court abused its discretion by not binding defendants over for trial, improperly acting as a trier of fact, and reinstated the charges against defendants.  In the consolidated cases of People v. Redden and People v. Clark, Nos. 295809 and 295810, the Court of Appeals affirmed the circuit court’s decision to reverse the district court’s bindover ruling, and remanded the case for further proceedings. Defendant Redden filed an application for leave to appeal.

In its brief amicus curiae opposing Redden’s request for leave to appeal, the Michigan Attorney General asserts that the affirmative defense found in section 8 of the MMMA is limited to qualified patients and caregivers who are formally registered with the Michigan Department of Community Health.  In this case the defendants did not possess the registration cards issued by the MDCH.  The Attorney General further argues that the MMMA is intended to aid people suffering from painful or terminable diseases and vague language in section 8 should not be exploited to grant a broad legalization of marijuana for other purposes.

News articles also report that the Attorney General filed a brief amicus curiae in the matter of People v. McQueen, Case No. 301951.  As of March 29, 2011, the Court of Appeals’ docket did not yet reflect this filing.  In McQueen, Isabella County is challenging the legality of a for-profit medical marijuana club in Mount Pleasant.  The club allows patient-to-patient sales of marijuana.  In December 2010, the Isabella County Circuit Court ruled in favor of the defendant holding that because the MMMA does not expressly address for-profit marijuana clubs, they must be permitted under the law.  The Isabella County Prosecutor is seeking leave to appeal this ruling.  The Attorney General supports the County’s request to appeal this ruling, arguing that these clubs violate the MMMA by allowing profits from the sale of marijuana.

Yesterday the U.S. Supreme Court granted a petition for a writ of certiorari to review the Sixth Circuit’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The case will be the first time the U.S. Supreme Court will address the “ministerial exception,” although the doctrine has already been recognized by 12 of the 13 U.S. Courts of Appeal (the Federal Circuit does not have jurisdiction over cases that could present the issue).  The doctrine arises from the Constitution’s Religion Clauses and bars most employment-related lawsuits brought against religious institutions by employees who play an important religious role.  In the words of Professor Richard Garnett of Notre Dame Law School, this case is “the most important religious-freedom case in 20 years.” Read more »

On Friday, the Michigan Supreme Court denied reconsideration of its earlier denial of leave to appeal to a free-lance journalist whose request to videotape proceedings in the Court of Appeals.  Justice Markman concurred, but wrote separately to raise his concerns about Administrative Order 1989-1 which permits courts to exclude film or electronic media coverage upon a finding that the fair administration of justice requires such action.   Specifically, Justice Markman questioned the validity of this requirement now that all of the Michigan Supreme Court’s arguments are broadcast on Michigan Government Television.  Justice Markman has asked that a new administrative file be opened by the Court to consider the continued workability of Administrative Order 1989-1.  Read more »

The Court granted leave in two cases, denied leave in three cases, and denied reconsideration in one case.

In People v. Kowalski, the Court granted leave to appeal to address whether expert testimony regarding the existence of false confessions, and the interrogation techniques  and psychological factors that tend to generate false confessions, is admissible under MRE 403 and 702.  In a split decision, the Court of Appeals affirmed the trial court’s decision to exclude the expert testimony explaining that the experts’ conclusions were not the result of reliable methods or principles, would not help the jury, and would unfairly prejudice the prosecution.  Then-Judge Alton Davis partially dissented because he believed the trial court should have permitted the experts to testify regarding whether false confessions occur without mental illness or torture, and that the defendant’s personality traits makes him prone to giving a false confession.  The Court invited the Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan to file amicus briefs.

In Charter Township of Haring v. City of Cadillac, the Court granted leave to appeal to address whether the townships’ claims are ripe; and whether Washtenaw County Health Department v. T&M Chevrolet, Inc., 406 Mich. 518; 280 N.W.2d 822 (1979) was correctly decided and if so, whether it requires the City of Cadillac to continue to provide wastewater treatment services to the surrounding townships after their contracts expire in 2017.  The case arises from the City of Cadillac’s decision to stop providing wastewater treatment services to the surrounding townships after the current contracts expired.  The townships sued to require Cadillac to continue providing services, but the trial court ruled that the contracts and existing law did not compel Cadillac to provide wastewater treatment services after the contracts expired.  In a split decision, the Court of Appeals affirmed.  Judge Jansen, in dissent, concluded that the issue was not ripe becuase notice to terminate the contracts was not required until 2015, and intervening Cadillac City Commissions could change Cadillac’s decision.  The Supreme Court’s reference to T&M Chevrolet is notable because the case does not appear in the Court of Appeals opinions.

On March 24, 2011, the Michigan Court of Appeals published its opinion in AFSCME Council 25 v. County of Wayne, No. 298655.  The court held that the Third Judicial Circuit Court of Michigan (the “Third Circuit”) has “exclusive authority” over the assignment of deputy circuit-court clerks to its judges’ courtrooms as part of the “judicial branch’s inherent constitutional authority,” and Wayne County’s collective-bargaining agreement with its employees could not supersede the Third Circuit’s control over its clerks. Read more »

The Michigan Supreme Court granted leave to appeal in 5 cases, denied 12 applications for leave to appeal, held People v Owens in abeyance pending the Court’s decision in People v Williams, and took action in 5 cases in lieu of granting leave to appeal.  The Court also affirmed the Genessee Circuit Court, Family Division, in In re CW, BW, and DW, Minors, after, on remand, the circuit court had conducted an evidentiary hearing and issued a written opinion and order.  Summaries of the cases where the Court granted leave to appeal or took substantive action follow. Read more »