One Court of Justice

 In Van Elslander v Follis, the Michigan Court of Appeals held that case-evaluation sanctions imposed on a plaintiff were proper where the plaintiff rejected the initial case evaluation award and won a more favorable verdict at trial, but ultimately lost at a new trial granted by the Court of Appeals.  The Court also reemphasized the test used to calculate case-evaluation sanctions, which include costs and reasonable attorney’s fees, and remanded the case to trial to justify the trial court’s sanction calculations Read more »

In People v. Bryant, No. 141741, the Michigan Supreme Court ruled that the defendant’s Sixth Amendment right to an impartial jury drawn from a fair cross section of the community had not been violated.  The Court held that the defendant failed to show that the representation of African Americans in venires from which juries are selected was not fair and reasonable in relation to the number of African-Americans in the community.  In so finding, the Court held that when evaluating jury representation data presented by a defendant, a court must examine the composition of jury pools or venires over time, using the most reliable data available to determine whether representation of a distinct group is fair and reasonable.  Read more »

In the consolidated cases of Michigan v. Yanna and Michigan v. Collie, the Michigan Court of Appeals found that the statute prohibiting possession of stun guns or tasers by private citizens was unconstitutional. The Legislature recently amended the statute to allow for possession of these devices by anyone who has received training and has a valid license to carry concealed. The Court did not rule, however, on the validity of the amended statute; it only ruled on the validity of the complete ban under which the defendants were arrested.

In both Yanna and Collie, the defendants were charged with possession of a stun gun in violation of the statute. Yanna’s stun gun was confiscated after an anonymous tip reported that he had it on his person while working at a party store. Collie’s stun gun was confiscated after he called the police to help him retrieve his personal possessions from his home during a domestic dispute. The Court first found that the Second Amendment, “guarantee[s] the individual the right to possess and carry weapons in case of confrontation.” The Court then found that stun guns and tasers are arms under the 18th century meaning, as they can be used both for defense and “to cast a strike at another.” The Court then rejected the prosecutions argument that stun guns are not suited for lawful defense, since the prosecution failed to put forward evidence that would cause the Court to doubt that the vast majority of taser and stun gun users are law-abiding citizens, who use them for lawful purposes. The Court then rejected the prosecution’s argument that stun guns and tasers are too dangerous to be owned by ordinary citizens, finding that they were far less dangerous than hand guns. Finally, the Court rejected the prosecution’s argument that tasers and stun guns were “unusual” or rare weapons, finding instead that they are legal in forty-three states and are routinely used by law enforcement officers in Michigan. After reviewing these findings the Court held that the statute was unconstitutional because it prevented the possession and open carrying of a protected arm, without the protected arm coming within any of the exceptions to the Second Amendment. Accordingly, the Court affirmed the Bay Circuit’s decision dismissing the charges against Yanna, and reversed the order of the Muskegon Circuit Court and reinstated the district courts order dismissing the charges against Collie.

In Clarke v. Clarke, the Michigan Court of Appeals reversed the trial court’s order imputing social security retirement benefits as income to the plaintiff. In Clarke, the plaintiff elected to take early social security retirement benefits. After learning that his minor son would also be eligible for benefits as a dependent, the plaintiff contacted the defendant and negotiated for splitting the child’s dependent benefits between the defendant and himself. However, when the plaintiff and his son began receiving their benefits, the dependant benefits went directly to the defendant. When the plaintiff learned that the defendant was getting these benefits, he withdrew his social security application and repaid all the monies that he and his son had received. The trial court imputed the lost social security income to plaintiff under the theory that the plaintiff’s social security benefit represented an unexercised ability to earn income. The Michigan Court of Appeals disagreed, finding that if the reason for not taking the benefits early was economic in nature, then the income could not be imputed to the plaintiff. The Court then remanded the case to the trial court in order to determine if the plaintiff had chosen to hold off on his benefits for an economic reason or because he didn’t want the defendant to receive the dependent benefits.

The Court of Appeals also affirmed the trial courts modification of the court order granting the defendant the federal dependency tax exemption for the minor child. The Court found that the trial court had not abused it discretion when it found that a change in circumstance had occurred that warranted modification of the order. The change in circumstances was that the minor child had gone from living with both of his parents half of the time to living full time with the defendant. Previously, the parents had been splitting the tax exemption every other year in order to mimic their custody arrangement.

The Michigan Court of Appeals considered several issues with respect to cash-assistance benefits under the Family Independence Program (FIP) in the consolidated appeals of Smith v. Department of Human Services Director.  In this case, the plaintiffs challenged the Department of Human Services (DHS) Director’s authority to impose a 60-month time limit on their cash-assistance benefits under the FIP.  First, the Court disagreed with the circuit court’s determination that the DHS Director violated the separation of powers doctrine by imposing the benefits time limit.  Instead, the Court held that the applicable statutes showed a clear legislative intent to allow the DHS to add eligibility criterion to the assistance program, particularly because the Director relied on fiscal soundness when making the decision to cut off the funds.  Next, the Court affirmed in part and reversed in part the circuit court’s determination that the DHS violated the rulemaking procedures of the Administrative Procedures Act (APA) by implementing the funding limit.  The Court held that, to the extent that federal funds were cut off after the 60-month time limit, the circuit court had erred because the DHS was following a federal mandate requiring that certain funds be limited to a cumulative period of no more than 60 months.  However, the Court noted that no such mandate existed as applied to state funds.  Accordingly, the Court held that, to the extent that the plaintiffs were entitled to FIP benefits derived from state funds, the circuit court was correct in finding a violation of the APA.  Finally, the Court upheld the circuit court’s issuance of class certification, reasoning that the DHS Director failed to show any basis for reversal of the circuit court’s finding that class action was a superior means of adjudicating the legal question presented in this case.

In People v. Nicholson, the Michigan Court of Appeals held that person who had been issued a registry card under the Michigan Medical Marijuana ACT (MMMA) but did not have easy access to it was not immune from arrest, but may be immune from prosecution or penalty.  In this case, the defendant was questioned for marijuana possession while he was a passenger in his friend’s car.  He informed the officer that he was a medical marijuana patient, and that although he had not yet received his official registry identification card, he had the paperwork (which was the equivalent of the card) back at his home.  Regardless, the officer arrested and charged the defendant for possession of marijuana.  The defendant moved to dismiss the charges because he was able to show the district court proof of his medical marijuana approval, which was backdated to before the arrest. The district court held that the MMMA required actual physical possession of a registry card at the time of the marijuana use to avoid arrest and prosecution, and, because the defendant was not in physical possession of his registry card at the time of the arrest, the court denied the defendant’s motion.  The Court of Appeals disagreed, holding that the registry card possession requirement means that the registry card must be “reasonably accessible at the location of that person’s marijuana possession and use,” and that the Act further requires that the question of possession for establishing whether one is immune from arrest is a separate question from possession for establishing whether one is immune from prosecution or penalty.  Accordingly, the Court held that while the defendant was not immune for arrest for possession of medical marijuana because his registry card was not reasonably accessible, he was immune from prosecution because he had his registry card.  The Court conditioned this immunity on there being no evidence that the defendant was using the marijuana for non-medical purposes.  It remanded the case for consideration of the medical use question.

On June 25, the Michigan Supreme Court held an application for leave to appeal in abeyance because it appeared that a case pending in the United States Supreme Court, Chaidez v United States, may resolve an issue presented in the application.  The question presented in Chaidez is whether the U.S. Supreme Court’s decision in Padilla v. Kentucky—which held  that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation—applies to persons whose convictions became final before its announcement.

The Michigan Supreme Court also remanded one case to the Court of Appeals as on leave granted, denied 178 applications for leave to appeal, and denied 13 motions for reconsideration.

On June 22, the Michigan Supreme Court denied application for leave to appeal a decision holding that refusal to provide a background check is a valid reason for modifying a child custody agreement.  In Mitchell v Mitchell, No 144959 the Court held that it was not persuaded that the questions presented should be reviewed by the Court.  We discussed the underlying Court of Appeals opinion here.

On June 22, the Court also decided People v Henix, No 144531.  There, Mr. Henix applied for leave to appeal the Court of Appeal’s holding that his criminal trial counsel was not ineffective.  Mr. Henix contended that his counsel was ineffective in failing to move to suppress physical evidence seized from the house and his inculpatory statements to the police during questioning inside the house.  The Court affirmed the Court of Appeals on harmless error grounds; the Court held that, even if the evidence had been suppressed, Mr. Henix would have been convicted on the weight and strength of the remaining, untainted evidence.

In light of that holding, the Court also vacated as unnecessary the part of the Court of Appeals judgment holding that Mr. Henix’s Fourth Amendment rights were not violated when the police officers forcibly entered the house where the defendant was staying.  In all other respects, the Court denied leave to appeal.

Justice Cavanagh, joined by Justice Marilyn Kelly, dissented in part.  They would reverse the Court of Appeals on the Fourth Amendment issue and hold that Mr. Henix’s Fourth Amendment rights were violated when the police officers forcibly entered the house where he was staying.  They would hold that, because one of Mr. Henix’s claims of ineffective assistance is predicated on the conclusion that his Fourth Amendment rights were violated, the Court must reverse the Court of Appeals’ conclusion to the contrary.

In Wardell v. Hincka, the Michigan Court of Appeals affirmed the trial court’s denial of the defendant’s motion to change custody following his move from Rogers City, Michigan, to Cheboygan, Michigan.  Before the move, the parties shared joint legal and physical custody of their daughter with a week-on/week-off parenting schedule.  The custody agreement also specified that the child would attend school in Posen, Michigan, which was between the plaintiff’s home in Alpena, Michigan, and the defendant’s previous home in Rogers City.  The commute to the child’s school in Posen from the defendant’s new home in Cheboygan was 70 minutes – a 50-minute increase over the commute time from the defendant’s previous home in Rogers City.  Based on testimony from the parents, the added commute time did not affect the child’s performance in school. Read more »

The Michigan Supreme Court granted the application for leave to appeal in People v. Elliott.  The parties shall address whether, and, in light of Howes v. Fields, 565 U.S. — (2012), under what custodial circumstances, a parole officer not acting in concert with police is required to provide Miranda warnings, before questioning an in-custody parolee who, during police questioning, has previously invoked his right to counsel, about an offense giving rise to an alleged parole violation, if the parole officer’s testimony regarding the parolee’s responses to such questioning is to be admissible at the trial for that offense.  The Court invited the Prosecuting Attorneys Association of Michigan, the Criminal Defense Attorneys of Michigan, and the Criminal Law Section of the State Bar of Michigan to file briefs amicus curiae.

In lieu of granting leave to appeal in In re Forfeiture of 1999 Ford Contour, the Michigan Supreme Court vacated the part of the Court of Appeals judgment that directs the Wayne Circuit Court to enter an order granting summary disposition in favor of the plaintiff.  The Michigan Supreme Court concluded that there remains an open question of material fact regarding a defense that the claimant has raised to the forfeiture, and denied leave to appeal in all other respects.  The Michigan Supreme Court remanded the case to the trial court.

In lieu of granting leave to appeal in Lech v. Huntmore Estates Condo Ass’n et al, No. 144356-7, the Michigan Supreme Court reversed the judgment of the Court of Appeals as it applies to the Jacobson defendants and reinstated the Livingston Circuit Court’s order granting the Jacobson defendants’ motion for summary disposition.  The Michigan Supreme Court determined that the Court of Appeals erred in finding that the plaintiff could assert the rights of LANS Development Corporation because a covenant against encumbrances is personal and does not run with the land.  Upon stipulation by counsel for the parties, the Court dismissed the related application for leave in No. 144350-1.

In lieu of granting leave to appeal in Peck v. Peck, the Michigan Supreme Court reversed the judgment of the Court of Appeals for the reasons stated in the dissenting opinion, and reinstated the judgment of the Clare Circuit Court.

The Michigan Supreme Court denied 5 applications for leave to appeal.