One Court of Justice

The Michigan Supreme Court granted leave to appeal in People v. Musser, limited to the issues of:  (1) whether statements in a recording of a police interview of a criminal defendant that vouch for the credibility of a witness, which would be admissible if stated by a trial witness, must be redacted from the recording before the jury views it; or (2) if the jury is allowed to see such a recording without redaction, what circumstances must be present and what, if any, protective measures must be in place.  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. Read more »

The Michigan Supreme Court denied 115 applications and complaints and denied 6 motions for reconsideration.

In Toll Northville Limited Partnership v. Township of Northville, the Michigan Court of Appeals considered whether the tax tribunal’s adjusted valuation of property comported with the parties’ stipulation regarding the value of certain parcels of land.  The parties had stipulated to the value of additions to over fifty parcels, but the Tax Tribunal’s opinion and judgment included additions to only nine parcels.  Moreover, the value of some of of the nine additions included were also inconsistent with the parties’ stipulation.  The Court of Appeals noted that there was no indication that the Tax Tribunal rejected the parties’ stipulation.  Accordingly, the court reversed and remanded for correction of the error. 

In Loutts v Loutts, the Michigan Court of Appeals rejected various aspects of the trial court’s judgment of divorce, holding that the trial court had abused its discretion.  Most significantly, the Court held that the trial court erred by holding that double dipping among spousal support and property division is never appropriate as a matter of law.  The Court emphasized that Michigan law favors a case-by-case approach to spousal-support calculations, and such a bright-line rule was inappropriate. Read more »

Under the Michigan Supreme Court’s June decision in People v. Kolanek, trial courts must conduct a quasi-evidentiary hearing to determine whether a criminal defendant may assert “medical purpose” as an affirmative defense to marijuana-related charges under the Michigan Medical Marijuana Act, MCL § 333.26428.  Under Kolanek, though the trial court must conduct an “evidentiary hearing,” the trial court may not decide any factual issues.  It may only determine whether the evidence established a prima facie defense and whether genuine issues of material fact remain to be adjudicated at trial.  This means the trial court is only resolving an issue of law, which is reviewed de novo in the Court of Appeals.  In People v. Anderson, however, the Court of Appeals declined to review the issue because the attorneys and trial court had conducted the hearing as one to resolve factual issues.  Because this “mistaken assumption likely affected the parties’ decisions in preparing and presenting their cases to the trial court at the hearing,” the Court of Appeals, in the “interests of justice” elected to instead vacate the lower court’s decision and remanded for a new hearing.  The Court of Appeals also suggested that the trial court clarify its ruling on whether expert testimony is necessary to support or contest any particular element of the affirmative defense—an issue we are likely to see percolate to the surface in future Medical Marijuana Act cases, if not this one.

In People v. Pennebaker, the Michigan Court of Appeals considered whether a work-release program that required monitoring by electronic tether satisfied the mandatory minimum 30-day jail sentence required for a second offense of operating a vehicle while intoxicated with an occupant under the age of 16.  The statute (MCL 257.625(7)(a)(ii)) required either a one- to five-year sentence in prison or a 30-day to one-year county jail term with probation and community service, and further specified that the term of imprisonment could not be suspended.  The defendant pleaded guilty to her second offense, and the trial court sentenced her to 30 days of work-release with monitoring by the sheriff’s department by electronic tether.  The Court of Appeals reversed, concluding that the statute clearly mandated the minimum sentence be served in the county jail, and the placement of an electronic monitor on the defendant is not imprisonment in a jail.  The court also took “judicial notice of the significant problem of jail overcrowding in many of Michigan’s counties,” and “recognize[d] the good efforts of the sheriff’s department in taking affirmative and conscientious steps to alleviate this burden on both law enforcement and the taxpaying community,” but noted that it is for the Legislature alone to alter the minimum and maximum punishment for a crime.

On September 13, 2012, the Michigan Supreme Court denied one motion to waive fees.  The Court also scheduled oral argument on whether to grant the application for leave in People v. Bylsma, No. 144120.  The Court asked the parties to address: “(1) whether the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., permits qualifying patients and registered primary caregivers to possess and cultivate marijuana in a collective or cooperative; and (2) whether, under the circumstances of this case, the defendant was entitled to immunity from prosecution for manufacturing marijuana under § 4 of the MMMA, MCL 333.26424, or entitled to dismissal of the manufacturing charge under the affirmative defense in § 8 of the act, MCL 333.26428.”

In People v. Akhmedov the Michigan Court of Appeals held that allowing a defendant to seek cancellation of his deportation was not a substantial and compelling reason to justify a downward departure from the sentencing guidelines because the shorter sentence actually had no effect on the defendant’s ability to seek cancellation.  In this case, a lawful resident alien from Turkey was convicted of dealing drugs.  Both the trial court and the Court of Appeals rejected the defendant’s argument that he was entrapped by undercover police into committing the drug offenses.  The sentencing guidelines recommended a prison term of 51 to 85 months.  The trial court departed downward from the guidelines and sentenced the defendant to only 363 days in jail with 36 months probation.  The court granted the downward departure because it believed the defendant would be unable to seek cancellation of his deportation if he was sentenced to more than 363 days in jail.  The Court of Appeals vacated the judgment of sentence and remanded for resentencing.  The Court of Appeals reasoned that a downward departure is only justified by a substantial and compelling reason.  In this case, no such reason existed because the trial court misinterpreted the federal law relating to cancellation of deportation.  In fact, sentencing the defendant to only 363 days had no effect on whether the defendant would be able to seek cancellation of deportation.  Accordingly, no substantial and compelling reason existed to justify the downward departure.

In Brecht v. Hendry, the Court of Appeals addressed the difference between sole and joint child custody when a parent wishes to change the child’s domicile.  A mother who had been granted sole custody of her five-year-old daughter in Michigan moved to North Dakota without obtaining the court’s permission.  The father challenged the move on the grounds that, under Michigan law, a parent who is awarded custody of a minor child may not remove that child’s domicile from the state of Michigan without court approval.  The trial court ordered the mother to return the child to Michigan and denied her motion for a change in domicile.  The Court of Appeals, however, vacated the trial court’s holding.  Under current relevant Michigan law, the change of a child’s residence by more than one hundred miles requires court approval based on the so-called D’Onofrio factors, which take into account the mutual rights of the two parents.  However, this law only applies when the custody order in question provides for joint legal custody.  If one parent was granted sole custody, the parent must still obtain approval to change the child’s residence but the previous law does not apply.  In that case, the court may not consider the D’Onofrio factors and must grant permission for the change in domicile as a matter of course.  Thus, the Court of Appeals concluded that the trial court should have granted the mother’s request to change the child’s residence.  Judge Talbot concurred in result only.

Pursuant to MCR 7.317(C)(3), the Michigan Supreme Court directed the Clerk of the Court to issue judgment orders in four cases relating to ballot petitions to amend the Michigan Constitution: 

In Protect Our Jobs v. Board of State Canvassers, the Michigan Supreme Court affirmed the judgment of the Court of Appeals granting relief on the complaint for mandamus, which we discussed earlier here, with respect to a proposed amendment that would enshrine certain collective-bargaining rights in the Michigan Constitution.

On application for leave to appeal prior to decision by the Court of Appeals on complaints for mandamus, in Michigan Alliance for Prosperity v. Board of Commissioners and The People Should Decide v. Board of Commissioners, the Michigan Supreme Court granted relief on the complaints for mandamus and directed the Board of State Canvassers to proceed as necessary to place the proposed constitutional amendments on the November 2012 election ballot.  The Michigan Alliance for Prosperity’s proposed amendment would require a 2/3 vote of the Legislature or a vote of the people before any tax increase can be approved.  The People Should Decide’s proposed amendment would require a popular vote before any new international bridge could be constructed.

On application for leave to appeal prior to decision by the Court of Appeals on the complaint for mandamus in Citizens for More Michigan Jobs v. Secretary of State, the Michigan Supreme Court dismissed the complaint for mandamus, which relates to a proposed amendment that would allow for the construction of eight new casinos in Michigan, and denied relief in all other respects.

The Michigan Supreme Court Opinion regarding these Orders is discussed here.