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.”
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