I will unfortunately have to take a ten-week hiatus from SCOMIblog until the end of the July. The good news is that I received an opportunity that I could not turn down. The bad news is that I cannot blog while working there. It is a short-term position, however, so I will be back to recap this term's opinions in late July and early August.
Notable Orders Recap
This post catches up on some notable orders. In the future, I will post about orders shortly after they come out rather than grouping them together.
Read MoreOpinion Analysis: Employer's action, not decision, triggers limitations period for a claim under the Whistleblower Protection Act
Trial Lawyers Takeaway: An employer's action, not its decision, triggers the 90-day limitations period to bring a claim under Michigan's Whistleblower's Protection Act.
Millar performed mechanical and plumbing inspections for the Construction Code Authority, a government agency. Two of the municipalities who utilized the Authority for inspections asked the Authority to stop sending Millar as an inspector. A little over two weeks later, the Authority drafted a letter to Millar, ordering him to do not further work in those municipalities. But it was not until the next week that the Authority actually delivered the letter to Millar.
Millar sought to bring a Whistleblower claim, arguing that he was fired because he had honestly reported violations of the building codes by the municipalities. The question before the Court was what event actually triggered the 90-day limitations period to bring a Whistleblower claim under Michigan’s Whistleblower’s Protection Act (MCL 15.361 et seq.).
Read MoreOpinion Analysis: Redaction and limiting instruction not enough to cure Confrontation Clause violation
Trial Lawyers Takeaway: Redaction and limiting instruction is not always sufficient to cure a Confrontation Clause violation for admission of a co-defendant's confession.
Carl Bruner and Michael Lawson were charged with first-degree premeditated murder (among other things) for a killing outside a Detroit nightclub. They were tried together. At Lawson’s preliminary examination, a witness, Westley Webb, testified about the shooting. The prosecutor impeached Webb with his police statement, in which Webb said that Lawson had admitted to him that he was part of the shooting and had described that Bruner had a gun at the time.
By the time of Bruner’s and Webb’s joint trial, the prosecution could not locate Webb and therefore asked the trial court to treat Webb as an unavailable witness, which would have permitted the prosecution to read Webb’s prior testimony to the jury. The prosecutor conceded that Webb’s statements about Lawson’s description of Bruner holding the gun could not be admitted against Bruner.
As a result, the prosecutor agreed to remove any mention of Bruner and the trial court determined that a limiting instruction would suffice to protect any prejudice to Bruner. When Webb’s testimony from the preliminary examination was read into evidence, Bruner’s name was replaced with the word “Blank.” The court also instructed the jury to consider Webb’s testimony only against Lawson.
The question was whether this reading of Webb’s testimony violated Bruner’s right under the Confrontation Clause of the Sixth Amendment, as incorporated against the States through the Fourteenth Amendment.
Read MoreOpinion Analysis: court can modify child custody order when case is under appeal
Trial Lawyer’s Takeaway: a circuit court can modify a child custody or spousal support order while the underlying divorce judgment is under appeal.
Under MCR 7.208(A), once a party has appealed an order or judgment to the Michigan Court of Appeals, a lower cannot modify that order or a judgment, with a limited number of exceptions. One of those exceptions, listed in 7.208(A)(4), is when the power to modify the prior order is “otherwise provided by law.” The question in this case was whether MCL 722.27(1), a provision of the Child Custody Act, which gives a circuit court the power to resolve custody disputes, constitutes the power to modify a prior order “as provided by law.”
Read MoreOpinion Analysis: Court clarifies rules for prescriptive easements
Trial Lawyer’s Takeaway: no tacking is required if prescriptive easement has already vested; prescriptive easements are appurtenant; burden of proving hostility shifts to landowner “many years” after statutory period
This case involved every property law student’s favorite topic: adverse possession. More specifically, it involved easements by prescription, which are a variant of adverse possession. The basic gist of adverse possession law in Michigan is that if someone has clearly treated property as their own for a period of fifteen years, and the real landowner has never done anything about it, then that person (the adverse possessor) will have a right to the land. A similar principle applies to an easement—which is just the right to use another’s land, rather than a right to possess it. Issues arise when it comes time to transfer property that is potentially subject to an adverse possessor’s interest. This case analyzes one of those issues.
Read MoreOpinion Analysis: Court rules on whether magistrate can weigh credibility at preliminary examination
Trial Lawyer’s Takeaway: Magistrate can weigh credibility at preliminary examination and refuse to bind over if reasonable person could not reasonably believe defendant’s guilt.
In criminal cases, a defendant is entitled to a preliminary examination, where the prosecutor will attempt to convince a magistrate that there is probable cause to bind over the defendant for trial. Under MCL 766.13, “the magistrate determines at the conclusion of the preliminary examination” whether probable cause exists. Here, the magistrate dismissed the charges against Anderson because the prosecution’s sole witness lacked all credibility. The question is whether the magistrate was permitted to weigh the credibility of the witness at the preliminary examination; and, if so, what standard he or she should have used to conduct such a weighing.
Read MoreOpinion Analysis: Can a plaintiff move for change of venue?
Trial Lawyer’s Takeaway: A plaintiff cannot move to change venue under MCR 2.223.
Michigan Court Rule 2.223(A) permits a court to order a venue change on (1) timely motion of a defendant or (2) the court’s own initiative. The question in this case is whether a court may order a venue change on plaintiff’s motion.
Read MoreOpinion Analysis: Court elaborates on OV-4 scoring
Trial Lawyer’s Takeaway: points for OV 4 may not be assessed solely on the basis that a serious psychological injury would normally occur as a result of the crime; fear while the crime is being committed, by itself, is insufficient to assess points for OV 4.
At sentencing in a criminal case, the trial court weighs so-called “offense variables” to determine how serious the defendant’s crime was for purposes of determining the sentence length. These variables review the characteristics about the crime to determine its seriousness. For example, the offense variable at issue in this case—Offense Variable (OV) 4—recommends a longer sentence if a “serious psychological injury requiring professional treatment occurred to the victim.” The list of offense variables operates like a checklist, allowing the judge to tally up a total at the end, which will recommend a particular sentence length.
Here, White, while robbing a gas station, held a gun to the cashier’s head. The cashier said she thought she heard the trigger being pulled. During White’s plea colloquy, he agreed that the cashier “was afraid” that he “was going to shoot her.” The trial court decided that OV 4 was satisfied because “people would typically suffer a psychological injury when confronted with the instant crime.”
Read MoreOpinion Analysis: Court clarifies harmless-error review
Trial Lawyer’s Takeaway: On harmless-error review, appellants must show that they likely would have prevailed.
Lyles was convicted of murder, but appealed the trial court’s denial of his request for an instruction informing the jury that his evidence of good character could create a reasonable doubt of his guilt. The issue in this appeal, however, is whether that error harmless.
Read MoreOpinion Analysis: Court says prejudice required to claim deprivation of counsel
Trial Lawyer’s Takeaway: a criminal defendant must show prejudice to claim deprivation of counsel.
The question in Lewis was whether deprivation of counsel at the preliminary examination was a “structural error” or an error where the defendant must show prejudice in order to obtain a reversal. Under the Sixth Amendment, a criminal defendant is entitled to counsel at all critical stages of a prosecution.
Read MoreOpinion Analysis: Court rules on MMERP cases recovering Medicaid benefits from estates
Trial Lawyer’s Takeaway: Legislature’s MMERP warnings sufficient to recover Medicaid benefits from beneficiaries’ estates dating back to July 2010.
The issue in these consolidated cases was whether Michigan’s Department of Health and Human Services could recover Medicaid benefits paid from the beneficiary’s estate. In 1993, Congress required states to execute programs to recover certain Medicaid benefits from beneficiaries’ estates. To that end, Michigan enacted the Michigan Medicaid Estate-Recovery Program. Michigan’s Medicaid application forms did not warn about MMERP when Rasmer initially applied for benefits in 2008. By the time Rasmer’s patient representative sought a redetermination in 2013, the form did include such a warning.
Read MoreOpinion Analysis: Court clarifies proximate cause for GTLA immunity exception
Trial Lawyers Takeaway: there can be more than one proximate cause under GTLA immunity exception, but must be "most immediate, efficient, and direct cause."
Kersch Ray ran cross-country on Chelsea High School’s cross-country team, which was coached by Eric Swager. During an early morning practice, Swager told the runners to cross an intersection even though the crosswalk sign warned “Do Not Walk.” When the runners crossed the street, Ray was hit by a car and injured.
The GTLA generally makes government employees immune from suit, but the statute makes an exception for when the employee’s conduct amounts to gross negligence that is the proximate cause of the injury or damage. The question is whether the statute’s phrase “the proximate cause” is different from a proximate cause.
Read MoreOpinion Analysis: multiple felony-firearm convictions can arise from a single criminal incident
Trial Lawyer’s Takeaway: multiple felony-firearm convictions can arise from a single criminal incident.
MCL 750.227b(1) sets out mandatory sentencing if a person is convicted of multiple convictions of felony-firearm possession: 5 years for a second conviction and 10 years for a third conviction. Before Wilson’s felony-firearm conviction in this case, he had been convicted twice of felony-firearm, but these two convictions arose from the same criminal incident. Under the Court’s decision in People v. Stewart, 441 Mich. 89 (1992), Wilson argued that these prior felony-firearm convictions should only count as one for purposes of the statute because they arose from the same criminal incident.
Read MoreCourt issues two opinions regarding judicial misconduct
The Court issued two cases regarding judicial misconduct.
Read MoreOpinion Analysis: any mandatory guideline is unconstitutional and reasonableness of sentences is determined by Michigan's test, not the Feds'.
Trial Lawyer’s Takeaway: all sentencing guidelines are advisory; a sentence’s reasonableness is based on Milbourn proportionality.
Both cases involved sentencing in the aftermath of the Court’s decision in Lockridge, which made Michigan’s sentencing guidelines advisory. Justice McCormack wrote the majority opinion, joined by Justices Viviano, Bernstein, and Larsen.
Read MoreOpinion Analysis: You can be charged with drunk driving in your own driveway
Trial Lawyer's Takeaway: you can be charged with OWI in your own driveway
The question in Rea is whether you can be charged with drunk driving under Michigan law when driving your own car in your own driveway.
Read MoreOpinion Analysis: prosecution must do more than merely recite a proper purpose for character evidence to be admissible
Trial Lawyer’s Takeaway: prosecution cannot merely recite a proper purpose for character evidence, must instead show the purpose is proper.
Denson was charged with assault with intent to do great bodily harm less than murder. At trial, he claimed self-defense. In response, the prosecution sought to introduce evidence of Denson’s prior conviction for assault with intent to do great bodily harm less than murder. That conviction resulted from a confrontation over a drug debt. Denson had sought out someone who owed him drug money, had smashed the windows on the person’s car, and, once the person appeared on a nearby porch, Denson shot him.
Defense counsel objected to admission of the conviction as inadmissible character evidence in violation of 404(b), but the prosecution claimed it was offering the evidence to rebut the self-defense claim, rather than to show propensity.
Read MoreOpinion Analysis: Court gives municipalities flexibility under Act 425 agreements
Trial Lawyers' Bottom-line: State Boundary Commission cannot rule on validity of Act 425 agreements; municipalities may include zoning provisions in Act 425 agreement.
Two trusts and a corporation, TeriDee LLC, owned land in Clam Lake Township that was zoned for forest-recreational use. The landowners wanted to develop the land for commercial use instead. To that end, the landowners filed an annexation petition to transfer the land to Cadillac. Around the same time, Clam Lake and Haring Charter Township entered into an Act 425 agreement to transfer the land to Haring.
When the landowners’ annexation petition reached the State Boundary Commission, the Commission’s statutory duty was to determine whether an Act 425 Agreement was “in effect.” The Commission, in carrying out this duty, determined it had the authority to declare the Act 425 Agreement “invalid” (using a number of statutory criteria) as opposed to just determining whether the agreement was “in effect.”
Read MoreOpinion Analysis: Court clarifies 3rd factor of Wexford test for determining "charitable institutions"
Trial Lawyers’ Bottom Line: Any restriction of recipients by a charitable institution must be reasonably related to the organization’s legitimate charitable goals.
Baruch is a nonprofit corporation registered as a tax exempt for its operation of Stone Crest Assisted Living, an adult foster care facility. For the years 2010–2012, Baruch sought tax-exempt status for real and personal property taxes under MCL 211.7o and MCL 211.9. The Tax Tribunal held that Baruch failed to satisfy three of the six Wexford factors. The Court of Appeals affirmed the tribunal’s judgment, but only regarding the third Wexford factor, which requires a charitable institution not to offer its charity on a discriminatory basis. The Supreme Court granted leave to appeal the Court of Appeals’ determination of the third Wexford factor.
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