One Court of Justice

In Polania v. State Employees Retirement Board, the Michigan Court of Appeals upheld the Board’s conclusion that it lacks discretion to retire employees against the medical examiner’s recommendation.  MCL 38.24(1)(b).  The plaintiff sought to retire from the Department of Human Services due to various conditions such as bi-polar disorder, diabetes, and other physical and emotional problems.  Two medical examiners concluded that these conditions did not amount to a permanent, total disability.  Based on this finding, the Board denied the plaintiff’s request for non-duty disability retirement.  The circuit court reversed the Board’s decision, concluding that the medical examiner’s report was not the last word, and that substantial evidence did not support it.  The court of appeals reversed, noting that the Legislature amended MCL 38.24 in 2002, and “unambiguously limited” the Board’s discretion to  retire employees to those situations where all criteria, including the medical examiner’s certification, are met.  Thus, the appellate court reversed the decision of the circuit court and affirmed the Board’s decision to deny the plaintiff’s retirement.

An individual injured in an automobile accident, which left him unable to drive, hired a transportation service to take him to medical appointments and to take him on personal errands.  The fees associated with this transportation service included wait time charges and minimum mileage charges (i.e. a charge for 20 miles for a round trip, even if the round trip was less than 20 miles).  In ZCD Transportation Inc. v. State Farm Mut. Auto. Ins. Co., the Court of Appeals held that the transportation charges for personal trips were not an allowable expense under the No-Fault Act as they were related to maintaining the injured individual’s quality of life and were not necessary for that person’s care, recovery or rehabilitation.   Additionally, the court concluded that while actual mileage charges and wait time charges associated with transportation to the individual’s medical appointments were recoverable under that standard, the portion of the “minimum” mileage fee associated with miles that were not actually driven were not recoverable, as it sought payment for services that were not actually rendered.

In People v. Green, the Michigan Court of Appeals decided that, where one registered medical marijuana patient gives a permissible amount of marijuana to another registered patient, the uncompensated transfer does not violate the Michigan Medical Marijuana Act, MCL 333.26421 et seq.  The appellate court reasoned that the transfer, as opposed to the sale, of medical marijuana from one registered patient to another was expressly included in the term “medical use” under the Act.  The uncompensated nature of the transfer distinguished the defendant’s case from that of Michigan v. McQueen, 293 Mich.App. 644, 653; 811 N.W.2d 513 (2011), in which the court previously ruled that the Act does not allow patients to sell to one another.  Finally, the court rejected the prosecution’s argument that only transfers from caregiver to patient are sanctioned under the Act.  Thus, the court of appeals affirmed the circuit court’s order dismissing the case.

The Michigan Supreme Court denied one application for leave to appeal.

In People v. Deroche, the Michigan Court of Appeals held that a prosecution for constructive possession of a firearm in the defendant’s home while under the influence of alcohol violated the defendant’s Second Amendment rights.  Novi officers went to the defendant’s home based on two separate disturbances on the same evening.  The officers learned that a gun was located in the defendant’s home, although the defendant’s mother-in-law had hidden the weapon from him by the time they arrived.  The court affirmed dismissal of the charge for possession of a firearm while under the influence of alcohol in violation of MCL 750.237.  The court reasoned that the statute was unconstitutional as applied to prosecution under a theory of constructive possession inside the defendant’s own home—behavior that the court held was protected by the Second Amendment.

In the three cases consolidated under Lucas v. Awaad, the plaintiffs alleged that their doctor intentionally made false diagnoses in order to increase billing.  The Michigan Court of Appeals determined that the plaintiffs’ claim under the Michigan Consumer Protection Act (“MCPA”), MCL 445.901 et seq. was barred by the MCPA’s exemption for transactions specifically authorized by law, see MCL 445.904(1)(a), since the practice of medicine is specifically authorized and regulated by law. See Smith v. Globe Life Ins. Co., 460 Mich. 446, 465; 597 N.W.2d 28 (1999).  Read more »

Governor Snyder has exercised his constitutional authority to ask the Michigan Supreme Court to issue an advisory opinion regarding the constitutionality of Michigan’s new right-to-work legislation.  That legislation, set to take effect on March 27, 2013, prevents employers from requiring employees to join a union as a condition of employment.  If the Michigan Supreme Court accepts the request, the Snyder administration will have succeeded in significantly reducing the time it takes to resolve constitutional challenges to the legislation. 

The advisory-opinion request identifies four questions of statewide importance:

1. Whether the right-to-work legislation applying to public employers “interferes with the authority of the Civil Service Commission” and therefore “is not lawfully binding on the classified state civil service”?
2. If the right-to-work legislation is not binding on the classified civil service, does the legislation violate the Michigan and federal constitutional requirements of equal protection of the law because the legislation does not apply to state classified employees but does apply to other employees?
3. Does the legislation violate equal protection of the law because it does not apply to all employees in public or private sector bargaining units?
4. Does the right-to-work legislation applicable to public employers violate the Michigan Constitution’s prohibition on changing the purpose of a law after its original passage by either house of the Michigan legislature? 

Governor Snyder’s request indicates that an advisory opinion is necessary because the State’s collective-bargaining agreements expire on December 31, 2013.  Contract negotiations are likely to start this summer.  Governor Snyder is asking that the Court issue an advisory opinion before negotiations begin so that all parties know whether the right-to-work legislation will apply to all state employees.

On Friday, the Michigan Supreme Court denied applications for leave to appeal, denied 19 motions for reconsideration, denied one motion for bypass, and dismissed one case on stipulation of the parties.  The Court also remanded two matters to the Court of Appeals or trial court. 

In People v. Howze, the Supreme Court directed the Wayne County Prosecuting Attorney to respond to the application for leave within 21 days.  In its brief, the prosecutor was directed to address whether the defendant should be allowed to withdraw his guilty plea in light of People v. Cole, 491 Mich, 325 (2012). Read more »

Years after executing a trust containing her property that was to be conveyed to her children and grandchildren upon her death, the settlor, Stillwell, made several hand-written notes that changed aspects of the trust.  She delivered the notes in a sealed envelope to her grandson with instructions to provide the envelope to the trustee upon her death or incapacitation.  The trust stated that it could be amended in any manner in a written instrument delivered to the trustee.  One of the handwritten notes stated that two of the grandchildren’s college loans were to be paid before any other distributions were made.  The envelope also contained instructions regarding distribution of personal property.  Finally, the notes added the petitioner, Stillwell’s son-in-law, as a beneficiary of the trust.  The Michigan Court of Appeals, in In re Gwendoline Louise Stillwell Trust, affirmed the probate court’s order that the written, unsigned notes properly altered the trust.  Because the trust stated that it could be amended in any manner in writing, and because it was undisputed that the notes were in Stillwell’s handwriting and she was not unduly influenced, it was not necessary that the notes be signed or include the word “amendment.”  But the Court of Appeals reversed the probate court’s determination that a grandchild adopted six days after the grantor’s death was a member of the class of beneficiaries.  Although the trust included future grandchildren in the definition of beneficiaries, the beneficiaries were determined on the date of Stillwell’s death.  Because the adopted child was not a grandchild on the day of Stillwell’s death, she was not a class member and was not entitled to a share in the estate.

In People v Jones, Defendant Byron Deandre Jones and his friend “Taiwan” were involved in an altercation with a group of men at the mall.  Jones and Taiwan brandished guns.  Jones fired his gun.  A jury convicted Jones of three counts of assault with intent to do great bodily harm less than murder, carrying a concealed weapon, and possession of a firearm during commission of a felony.  No one else was convicted of a crime related to the altercation.  During sentencing, the trial-court judge added ten points under OV 14, because Jones was the leader in a multiple-offender situation.  Jones appealed this addition, arguing that the altercation was not a multiple-offender situation because no one else was convicted of a crime.  The Court of Appeals disagreed.  The Court held that the trial court did not err in adding the points, because there was evidence that Jones was Taiwan’s leader and that Taiwan had committed several crimes, e.g. disturbing the peace.