One Court of Justice

In People v Reed, No. 296686, the Court of Appeals considered whether an individual could assert an affirmative defense under the Michigan Medical Marihuana Act (MMMA) when the individual manufactured marijuana prior to obtaining physician authorization, but was arrested for this conduct several weeks later, after he obtained physician authorization and received a registry identification card from the Michigan Department of Community Health.  The defendant argued that the trial court was obligated to dismiss the charge against him because, at the time he was arrested, he satisfied all the elements of the affirmative defense under the MMMA.  One of these elements is that an individual must obtain a qualified physician’s statement that the medical use of marijuana is likely to alleviate the individual’s debilitating medical condition.  The Court of Appeals recently held in People v Kolanek that the relevant deadline for obtaining the physician’s statement under the MMMA was the time of arrest.  Through Judge Meter’s opinion in Reed, the court extended the Kolanek holding and determined that an individual must obtain a physician’s statement prior to commission of the offense in order to be eligible for an affirmative defense under the MMMA.  The court reasoned that it was inappropriate to focus on the court’s use of the word “arrest” in Kolanek because in that case the purported offense and the arrest occurred simultaneously.  The court also concluded that the law would provide less of an incentive to obtain a physician’s authorization under the defendant’s interpretation of the statute.  Accordingly, the court concluded that the defendant was barred from asserting the affirmative defense under the MMMA, and similarly was not entitled to immunity from arrest under the MMMA. 

On August 30, 2011, the Michigan Court of Appeals approved for publication its opinion in Michigan v Cohen, No 298076.  There, the Court held that the probable cause needed to effectuate an arrest is different from, and less stringent than, the the probable cause needed to bind over a defendant for trial.  Read more »

In AFSCME Council 25 v. State Employees Retirement System, Nos. 302959, 302960, 302961, 302962, the Court of Appeals held that MCL 38.35, which requires a three percent employee compensation contribution to finance the public employee retirement health care funding act, is unconstitutional.

During collective bargaining agreement (“CBA”) negotiations, plaintiffs addressed wage provisions for the 2008-2011 fiscal years.  The bargained-for CBA called for a three percent increase in civil service employee salaries for fiscal year 2010-2011.  The CBA was approved by the Civil Service Commission (“CSC”) and transmitted to the governor for incorporation into the state budget as required by law.  Under Article 11, Section 5 of the Michigan Constitution, the only way the Legislature can reject an approved CSC wage increase is by a 2/3 majority of the members in the house and senate.  The Legislature failed to garner the necessary votes.  Therefore, the Legislature instead passed MCL 38.35, which effectively required civil service employees to pay their entire compensation increase into the State Employment Retirement System through 2013, with the funds being used to pay the retirement costs of current retirees.

Read more »

In Price v. High Pointe Oil Co., No. 298460, the Court of Appeals held that “in negligence actions, a plaintiff may seek recovery of mental anguish damages naturally flowing from the damage to or destruction of real property.”

In Prince, plaintiff was awarded $100,000 in non-economic damages resulting from defendant filling the basement of plaintiff’s home with nearly 400 gallons of fuel oil.  A year before the incident, plaintiff converted her home heating system from an oil furnace to a propane furnace.  Plaintiff notified defendant of the change, and defendant took plaintiff off the “keep full” oil list.  Despite this notice, however, plaintiff was inadvertently placed on the “keep full” list, which resulted in defendant’s oil truck driver filling the fill pipe located on the exterior of the house while plaintiff was at work.  Because the oil furnace had been replaced, the fuel oil flooded the basement.  The resulting contamination required the demolition of the house and plaintiff being displaced from a permanent home for nearly two years.

Read more »

A two-month old child suffered severe injuries from physical abuse.  The parents were the only caretakers, but they denied having knowledge of how the child suffered the abuse.  The trial court terminated both parents’ rights on the grounds that the parents abused the child, failed to prevent abuse, battered the child, and the child would be harmed if returned to the parents.  The parents claimed that, because the court did not determine which of them committed the abuse, the court erred in terminating their rights.  In In re A. Ellis Minor, Nos. 301884, 301887, the Court of Appeals held that termination of parental rights is permissible even if definitive evidence regarding the identity of the abuser is absent, when the evidence shows that the parent(s) whose rights are being terminated either caused the abuse or failed to prevent the injuries.  Because the parents were the only caregivers, at least one parent abused the child, and the other parent, at a minimum, failed to prevent it.  Accordingly, the Court of Appeals affirmed the trial court’s termination of parental rights.

The Michigan Court of Appeals previously issued an opinion in Richard v. Schneiderman & Sherman, P.C., No. 297353, on August 11, 2011.  This opinion was discussed on the One Court of Justice Blog here.  On August 22, 2011, the Court vacated its August 11, 2011, opinion on its own motion.  On August 25, 2011, the Court issued its new opinion.  The two opinions are nearly identical.  In the second opinion, the Court added a paragraph noting two limitations on the Court’s prior holding in Residential Funding Co, Inc v. Saurman, Nos. 290248, 291443, ___ Mich App ___; ___ NW2d ___ (April 21, 2011).  Saurman is discussed here.  First, the Court noted the long-standing requirement that a “mortgagor must challenge the validity of a foreclosure by advertisement promptly.”  Second, the Court observed that a foreclosure by advertisement may not be challenged after the property has been sold to a bona fide purchaser.  But the Court held that Plaintiff Aaron Richard had satisfied both these prerequisites, and so again the Court reversed the trial court’s grant of summary disposition, vacated the foreclosure proceeding, and remanded for further proceedings consistent with its opinion.  

On August 24, 2011, the Michigan Supreme Court denied one motion to waive fees, issued one order directing the Clerk of the Court to close a file, and issued eight housekeeping orders.

On August 24, 2011, the Michigan Supreme Court issued two orders.  First, the Court issued an order granting immediate consideration and enforcing stay in Michigan v Anderson, No. 143339.  The application for leave to appeal in this case remains pending.  Second, the Court issued an order closing the file on Tiller v Department of Corrections, No. 143045, because the petitioner-appellant failed to pay the partial filing fee as required by court order. 

On August 23, 2011, the Court of Appeals published its decision in Michigan v. McQueen, No. 301951, overturning the trial court’s determination that an operation which administered the sale of marihuana between qualifying patients/caregivers (while taking a percentage of the sale) was protected under the terms of the Michigan Medical Marihuana Act (MMMA), and could not be enjoined as a public nuisance under the Public Health Code.  The case involved defendants that ran a facility that rented lockers for MMMA-qualifying patients/caregivers to store their excess marihuana that they wanted to sell to other MMMA-approved users.  Defendants then allowed other qualifying patients/caregivers to inspect the marihuana that was up for sale, and then consummated the sale on behalf of the selling patient/caregiver - keeping a 20 percent service fee.  The Isabella County Prosecuting Attorney sought an injunction against this operation.  In an unanimous opinion, authored by Judge Hoekstra, the Court of Appeals concluded that because the operation provided facilities for marihuana sales in exchange for a fee, supervised the selection of marihuana, collected the sales price and took a 20 percent cut of the sale, that operation was not a mere facilitator, but was engaged in the sale of marihuana, which was clearly criminal and contrary to the Public Health Code.  The remaining question was whether the provisions of the MMMA protected this type of operation.  Defendants argued that becuase the MMMA permits the delivery and transfer of marihuana  for medical use, it authorizes this type of patient-to-patient transaction.  The Court of Appeals disagreed.  It concluded that Defendants were engaged in the sale of marihuana, which is separate and distinct from the concepts of “delivery” or “transfer”, and because the terms of the MMMA do not specifically protect the sale of marihuana, this operation is not protected by the terms of the Act.  Thus, the Court of Appeals remanded the matter for entry of the injunction.

In Bailey v. Schaff, No. 295801, the Court of Appeals held that a landlord has a duty to take reasonable measures in response to an ongoing crime that takes place on the premises, which means “expediting the involvement of, or reasonably attempting to notify, the police.” Read more »