One Court of Justice

On October 26, 2011, the Michigan Supreme Court granted the application for leave to appeal in In re Mortimore Estate, No. 143307, to address ”what standards apply and what factors a court should consider in determining whether a transaction was the product of undue influence where there is a fiduciary relationship between the parties.”

The Court directed the Clerk to schedule oral argument on whether to grant the application or take other action in Hill v. Sears Roebuck & Co, No. 143329.  At oral argument, the parties shall address:  (1) whether the defendant installers of the electrical appliance had a duty to plaintiffs with respect to the uncapped gas line in their home that was separate and distinct from their contractual duty to properly and safely install the appliance; (2) whether the defendant installers created a new dangerous condition with respect to the uncapped gas line, or made an existing dangerous condition more hazardous; and (3) whether other defendants breached any duty owed to the plaintiffs.

In Scott v. Director of Elections, No. 143878, the Court granted the motions for immediate consideration and motion to intervene, and denied the motions for reconsideration of the Court’s October 20, 2011 order.  The Court stated that:  ”The ultimate question here is whether signatures gathered on a recall petition are invalid if collected before a circuit court appeal of a ruling on the clarity of a petition is decided.  MCL 168.952(7).”  The Court noted that given the absence of express language in the statute indicating one way or the other, plaintiff’s construction that no signatures collected before the circuit court’s decision are valid “is at the very least debatable.”  However, the Court emphasized that the granting of an injunction constitutes an extraordinary judicial power, and to halt an election by an injunction is an even more extraordinary action.  The Court determined that the circuit court’s original decision correctly concluded that plaintiff had not shown a likelihood of success on his claim, under the standards for determining whether to grant an injunction, to prevent the recall election, and that plaintiff cites to no authority for the proposition that the Michigan Supreme Court is authorized to “adjourn” an election.

The Michigan Supreme Court denied six applications for leave to appeal.  Justices Cavanagh and Marilyn Kelly would grant the application in People v. McGhee, No. 142871.  The Court issued a housekeeping order granting motions to file briefs amicus curiae and denying a motion for leave to participate in oral argument in Residential Funding Co, LLC v. Saurman, Nos. 143178-9.

The complainant, a 15-year-old girl, accused defendant, a 25-year-old male, of violently raping her on two separate occasions.  The jury convicted defendant of two counts of third-degree criminal sexual conduct, and the trial court sentenced defendant to concurrent terms of 7 to 15 years’ imprisonment.  In People v. Armstrong, No. 142762, the Michigan Supreme Court held that defendant’s trial counsel’s ineffective assistance in failing to seek the introduction into evidence of cell phone records showing the complainant’s frequent communication with defendant after the alleged rapes, that would have undermined the complainant’s credibility, prejudiced defendant.  In lieu of granting appeal, the Michigan Supreme Court unanimously reversed the judgment of the Court of Appeals, and remanded the case to the trial court for a new trial. Read more »

In People v. Williams, No. 299809, the Court of Appeals reversed consecutive sentencing of Williams for the crimes of possession and delivery of marijuana because the possession and delivery were contemporaneous and tried in a single trial.  When a defendant is serving time for a prior offense and commits another offense while incarcerated, MCL § 768.7a(1) permits a court to impose a sentence for the new offense that is consecutive to the offense he is currently serving.  Here, however, where the offenses arose out of the single transaction of exchanging marijuana for a candy bar, the Court declined to interpret MCL § 768.7a(1) as permitting a court to impose two consecutive sentences.  Instead, the Court held that the sentences for possession and delivery would run concurrently to each other, but consecutively to the prior sentence already being served. Read more »

 In People v. Meissner, No. 298780, the Court of Appeals considered an appeal from a defendant’s convictions for domestic violence, first-degree home invasion, and obstruction of justice. The victim told the police that after several incidents of physical abuse, the defendant had sent threatening text messages to the victim, threatening to kill her in one and threatening to beat her for involving the police in another. On one occasion, the defendant broke into the victim’s bedroom at night, pushed her, and threw coins at her. At trial, the victim recanted her statements to the police. A jury convicted the defendant on all three counts. On appeal, the defendant raised several issues.

First, the defendant argued that the victim’s statements to police should not have been admitted at trial. MCL 768.27c(1) allows a victim’s statements to be admitted in domestic violence cases, if those statements describe the domestic violence, are made near the time of the incident, and are made to police under circumstances indicating the statement’s trustworthiness. The defendant argued that too much time elapsed between the charged incident and the victim’s report to police later that day. The Court of Appeals rejected this argument, finding that the defendant had misinterpreted the statute; the trial court “was not required to calculate or consider the number of hours that had elapsed.” The defendant also argued that the victim’s statements were not made in circumstances indicating their truthfulness. The court again disagreed, finding that there was no need to discredit the victim’s statements to police. The victim’s statements were corroborated and believable, and the mere fact that the statements were made to the police did not make them untrustworthy statements made in anticipation of litigation.

The defendant then argued that the evidence against him was insufficient to sustain his convictions on the home invasion charge and the domestic violence charge. Both charges require a showing that the defendant assaulted the victim, which the defendant alleged that the prosecution failed to show. The Court of Appeals disagreed, finding that under Michigan’s definition of assault, the prosecutor had presented sufficient evidence to prove that defendant had assaulted the victim. The defendant also argued that there was insufficient evidence supporting a conviction for obstruction of justice; however, the court found that the defendant’s statements threatening to beat the victim for calling the police were enough to support that conviction.

 Next, the defendant alleged that the prosecutor’s opening and closing statements constituted prosecutorial misconduct. The Court of Appeals disagreed, finding that the trial court cured any prejudice created by the prosecutor’s statements with its instruction to the jury that those statements did not constitute evidence. Finally, the defendant argued that the jury instructions themselves were erroneous and that his counsel was ineffective. The court disagreed, finding that the defendant had waived any right to object to the jury instructions, and that the defense counsel’s trial strategy did not constitute ineffective counsel.

On Monday, October 24, 2011, the Michigan Supreme Court denied 102 applications for leave to appeal, 11 motions for reconsideration, and remanded two cases to the Court of Appeals for reconsideration as on leave granted of the Court of Appeals’ previous orders denying appellants’ applications for leave to appeal.

The Court also remanded three cases which had been previously held in abeyance pending the Court’s decision in similar cases.  Read more »

In Hopkins v Township of Duncan, No. 300170, the Michigan Court of Appeals considered a plaintiff’s appeal from an order of summary disposition in favor of the defendant township on the plaintiff’s claim that the defendant violated Michigan’s Freedom of Information Act (“FOIA”). In his initial FOIA request served upon Duncan Township, the plaintiff specifically requested copies of any notes taken by any elected Duncan Township official at township meetings. After one official did not turn over notes that the plaintiff knew that official had taken during meetings, the plaintiff filed an action alleging that the township had violated FOIA by failing to have the official turn over his notes.

The Court of Appeals disagreed, affirming the trial court’s order granting summary disposition for the defendant. The court held that the handwritten notes of the township official, taken in his own personal diary and intended solely for his personal use, were not public records subject to disclosure under FOIA.   The township itself did not store or retain the official’s personal notes, and the notes were never circulated among other board members, referenced in the public record, or used in the creation of the minutes of any of the township’s meetings or in furtherance of the township’s business.  Additionally, the township official kept the notes entirely of his own volition, and had the ability to retain or destroy the notes at his sole discretion.  As a result, the Court of Appeals found that the township official’s notes were private writings that did not need to be disclosed to the plaintiff under FOIA because they were not in furtherance of an official function.

In Petipren v. Jaskowski, Case Nos. 298088, 301125, the Court of Appeals concluded that absolute immunity for the elected or highest appointed executive official, under MCL 691.1407(5), does not apply to “conduct by a police chief that occurred when the chief was acting as an ordinary police officer rather than within his capacity as the highest executive official of a level of government.”  Accordingly, the Court affirmed two trial court orders denying the police chief’s motions for summary disposition that he brought on the basis of absolute governmental immunity. Read more »

In People v. Brown, No. 297728, the Michigan Court of Appeals affirmed the defendant’s conviction of one count of criminal sexual conduct in the first degree (“CSC-I”) and the attendant life sentence.  The defendant challenged his conviction and sentence on a variety of grounds, including prosecutorial misconduct, admissibility of evidence, ineffective assistance of counsel, right to trial, cruel and unusual punishment, and improper departure from sentencing guidelines.  The Court rejected all of the defendant’s arguments. Read more »

In Pugh v. Zefi, No. 299034, the Michigan Court of Appeals affirmed the trial court’s denial of Defendant-Appellant Farmers Insurance Exchange motion for partial summary disposition on the issue of underinsured motorist coverage.  The Court held that the plaintiff’s car-sharing arrangement fit the definition of “shared-expense car pool” under the insurance policy.

Farmers Insurance insured a vehicle owned by Orlander Meadows, Jr., which was involved in an accident while plaintiff, Johnetta Pugh, was riding as a passenger.  Pugh suffered injuries and sought underinsured motorist benefits from Farmers Insurance.  The underinsured motorist provision of the insurance policy included an exception providing, “This coverage does not apply to bodily injury sustained by a person . . . [w]hile occupying your insured car when used to carry persons or property for a charge.  This exclusion does not apply to shared-expense car pools.”  Meadows drove Pugh to work in his vehicle, and Pugh gave Meadows approximately $20/week to “chip in” for gas.  The accident occurred while Pugh was driving Meadows to work as a part of this arrangement.  Pugh did not have a driver’s license and never took turns driving.  Meadows characterized this as a carpool and that he was not hired to drive Pugh to work.   Farmers Insurance argued that Pugh had hired Meadows to drive her around, and accordingly, she was not entitled to any underinsured motorist benefits.

 The trial court ruled that this arrangement fit the definition of a carpool and denied Farmers Insurance’s motion for partial summary disposition.  The Court of Appeals reviewed this decision de novo and affirmed finding that the trial court correctly concluded that the arrangement qualified as a “shared-expense car pool” within the meaning of the insurance policy. Read more »

The Michigan Supreme Court issued an order in Scott v. Michigan Director of Elections, No. 143878, reversing the order of the Court of Appeals and reinstating the Ingham County Circuit Court order that denied the plaintiff’s motion for a preliminary injunction.  In this case, state Rep. Paul Scott, a Republican from Grand Blanc, challenged the recall petition against him.  The Supreme Court ruled that the circuit court did not abuse its discretion when it denied Scott’s motion for an injunction, because Scott had not demonstrated he was likely to prevail on the merits.  The Court also noted that the Court of Appeals’ ruling created confusion and uncertainty, because it was not clear from the order whether the Court of Appeals retained jurisdiction.  The Court encouraged future litigants in election disputes to file applications for leave to appeal directly with the Supreme Court after filing the application with the Court of Appeals, as allowed by MCR 7.302(C)(1)(b).