One Court of Justice

In 36^th District Court v Michigan American Federation of Sate, County and Municipal Employees, the Court of Appeals decided several issues arising out of arbitration between the 36^th District Court and AFSCME over the chief judge’s decision not to re-appoint four judicial officers.  First, the Court of Appeals held that the trial court, and not the arbitrator, should have determined whether the contract containing an arbitration clause had been terminated, thereby eliminating the contractual duty to arbitrate.  The Court of Appeals reasoned its holding was consistent with the common law in Michigan that requires the court, not an arbitrator, to decide whether a contract to arbitrate exists.   Second, the Court of Appeals determined that in this case, the 36^th District Court did not terminate the collective bargaining agreement because the 36th District Court only gave notice of its intent to terminate or modify the agreement.  The 36th District Court’s notice preserved its right to terminate, but it did not effectuate that right.  Third, the Court of Appeals concluded that the arbitrator exceeded its authority by ordering the chief judge to re-appoint court officers to their former positions.  The collective bargaining agreement stated that the arbitrator would be without authority to require the employer to delegate any power or responsibility which by State law the employer could not delegate.  Under Michigan Court Rules, the only the chief judge has the authority to make reappointment decisions, and the judicial branch is constitutionally accountable for those who provide court services.  Accordingly, under the collective bargaining agreement, the arbitrator exceeded his authority by requiring the chief judge to re-appoint the judicial officers. 

What does it take to receive increased sentencing for “aggravated physical abuse” under Offense Variable (OV) 7 of the sentencing guidelines?  That was the question before the Court of Appeals in People v. Glenn.  An OV7 score is warranted when there is “sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered.”  MCL § 777.37.  In this case, the perpetrator robbed a gas station with a sawed-off airsoft gun, and used the butt to strike each clerk once in the head during the course of the robbery.  The Court of Appeals held that this was not the sort of “heinous” conduct the legislature was targeting. Read more »

In a per curiam decision, the Court of Appeals concluded that the unions representing Central Michigan University’s office professional employees had standing to challenge the University’s “Political Candidacy of Employees” policy in a declaratory judgment action seeking a determination that the policy violated the State’s Political Activities by Public Employee’s Act.  In International Union v. Central Michigan University Trustees, the Court determined that, even though no employee had yet attempted to become a candidate for office – and thus subject to the Policy’s provisions regarding non-interference with their job-functions, there was an actual controversy based upon the Union’s allegations that the Policy violated the Act.  Thus, the court reasoned that allowing this action to go forward on that basis is consistent with the purpose of a declaratory judgment.  Even though the Union had standing, the Court rejected its substantive arguments.  Broadly, the Act prohibits restriction of off-duty political acitivity by a public employee.  In this case, the Court found that because the Policy did not try to regulate off-duty political activity, but instead only regulates an employee’s work to ensure that work is not negatively impacted by the candidacy.  Thus, the Court of Appeals affirmed the trial court’s denial of declaratory and injunctive relief.  Additionally, the Court of Appeals found that the Union lacked standing to challenge the University’s draft procedures to implement its policy on the grounds that those procedures were still drafts and had not been adopted by the University.

The plaintiff in Ferrero v. Walton Twp., received a homestead property tax credit for property taxes paid in 2008.  Because the plaintiff did not owe state income taxes for 2008, she received a check for payment of the amount of the credit.  In 2009, the plaintiff requested an exemption from property taxes under the homestead property tax exemption (MCL 211.7u), which states that a person whose income is below the poverty line is exempted from paying that year’s property taxes.  The plaintiff received $9,732 in social security disability income in 2009.  The tax tribunal treated the $1,093 tax credit paid to her in 2009 as income, and concluded that her income exceeded the poverty line of $10,400 for an individual.  The Court of Appeals reversed, concluding that the homestead property tax credit was a refund of taxes, and therefore, it was not income.  The court reasoned that the tax credit functioned as a refund because its purpose is to “rebate a portion of the property taxes a person has already paid.”  Judge Shapiro authored the majority opinion, and Judge Beckering joined.  Judge Owens dissented, stating that the tax credit is not a refund – which involves an overpayment or incorrect payment of taxes – but rather a “refundable tax credit,” which uses state funds to pay a portion of property taxes that was paid to a local government.

The Michigan Supreme Court denied one prisoner’s motion to waive fees.

In 2009, the plaintiff sought to amend a Qualified Domestic Relations Order (QDRO) with respect to allocation of the defendant’s retirement benefits.  The QDRO had been entered on March 14, 1995, after a judgment of divorce was entered on November 14, 1994.  In Neville v. Neville, the Court of Appeals concluded that because the divorce judgment required entry of the QDRO, the two documents should be treated as one judgment.  Thus, the motion brought in 2009, which sought to make substantive changes to the QDRO, was time-barred under MCR 2.612.  The Court of Appeals also considered whether the trial court’s modifications of the QDRO could be considered clarification or interpretation of the QDRO, to which the time limitations of MCR 2.612 would not apply.  But the court concluded that the trial court’s attempt to craft a formula for the plaintiff’s share of the defendant’s retirement benefits that differed from the QDRO affected substantive rights, and therefore, the motion was time-barred.  Finally, the court concluded that to the extent the QDRO modified the divorce judgment, the QDRO was controlling, because it was entered after the divorce judgment and reflected the parties’ agreement.  The parties were free to modify the terms of their property settlement when approving the QDRO.

In Bronson Methodist Hospital v. Home-Owners Insurance Co., Nos. 300566, 300567, the Michigan Court of Appeals held that no-fault insurers have a right to discover information regarding the costs of the insured’s healthcare.  There, two insureds had received surgery requiring implant products.  Bronson Methodist Hospital (“Bronson”) billed the no-fault insurers for the costs of these implants.  The no-fault act only requires insurers to pay “reasonable” costs.  The insurers asked Bronson for the wholesale cost of the implants in order to determine whether the costs billed were reasonable.  Bronson refused to provide that information.  Consequently, the insurers refused to pay that portion of the bill.  Bronson filed suit to recover the costs.  The insurers again requested discovery regarding the wholesale cost.  The trial court refused to order this discovery, but the Court of Appeals held that the insurers were entitled to this information, emphasizing that the healthcare provider had the burden of proving its costs were reasonable.  Read more »

In Padilla v. Kentucky,130 S. Ct. 1473 (2010), the United States Supreme Court held that illegal immigrants who are not advised that a guilty plea will subject them to automatic deportation have not received effective assistance of counsel.  Today in People v. Gomez, the Michigan Court of Appeals held that Padilla does not apply to illegal immigrants who plead guilty and whose conviction was final before Padilla was decided—Padilla’s new rule of criminal constitutional procedure is prospective only. Read more »

If two first-degree criminal sexual conduct (“CSC 1”) convictions arise out of the same transaction, a trial court may impose consecutive sentences. So held the Court of Appeals in People v Ryan, where the defendant was convicted of nine counts of sexually assaulting his daughter, and sentenced to 25 to 50 years imprisonment on each of those counts.  The trial court found that the sexual penetrations associated with count three and count nine arose out of the same transaction; as a result, consecutive sentencing was permissible under MCL 750.520b(3), which states that a “court may order a term of imprisonment imposed under this section [the CSC 1 statute] to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction.”  The court also affirmed the trial court’s finding that the defendant’s confession, given after being deprived of sleep and pain killers for two days, was not involuntary. Read more »

It was discovered that, in the statutorily-required affidavit of merit that accompanied a plaintiff’s notice of intent to bring a medical malpractice claim for misdiagnosis of an x-ray, the expert had been provided with later x-ray film of the plaintiff, and not the x-ray film that had been allegedly misdiagnosed.  Indeed, it appears that x-ray film at issue could not be located by either party.  The trial court concluded that without the misdiagnosed x-rays, the expert’s opinion of a misdiagnosis was speculative and dismissed plaintiff’s complaint.  In Kalaj v. Kahn, the Court of Appeals reversed and found that plaintiff had provided a statutorily sufficient affidavit of merit.  Specifically, the court noted that plaintiff’s expert had concluded that he did not need the allegedly misdiagnosed x-rays to render his opinion, but instead could reach that opinion based upon plaintiff’s symptoms and other x-rays taken around the same time as those taken by defendant.  Judge Borrello’s opinion noted that such an opinion is all that is necessary to satisfy the statutory requirement for an affidavit of merit, and that even though the expert relied on circumstantial evidence to reach his conclusion, that does not mean that his testimony (without the benefit of reviewing the x-rays in question) would be inadmissibly speculative.   Thus, the Court of Appeals reinstated plaintiff’s complaint and remanded the case for further proceedings.