Michigan Supreme Court Announces Cases for November 2017 Oral Arguments

LANSING, Mich., Oct. 27 -- The Michigan Supreme Court issued the following news release:

The Michigan Supreme Court announced that oral arguments in 11 cases will be heard November 7-8, 2017. The Court will convene to hear the first case at 9:30 a.m., November 7, in the sixth floor of the Hall of Justice, 925 W. Ottawa Street. The schedule of arguments is posted on the Supreme Court's oral arguments homepage.

The Court broadcasts its oral arguments and other hearings live on the Internet via streaming video technology. Watch the stream live only while the Court is in session and on the bench. Streaming will begin shortly before the hearings start; audio will be muted until justices take the bench. Follow the Court on Twitter to receive regular updates as cases are heard.

Please contact the Office of Public Information at 517-373-0129 or [email protected] for permission to film or photograph during the hearing. See the link to Request and Notice for Film and Electronic Media Coverage of Court Proceedings. The request must be submitted three days in advance of the hearing.

These brief accounts may not reflect the way that some or all of the Court's seven justices view the cases. The attorneys may also disagree about the facts, issues, procedural history, and significance of these cases. For further details about the cases, please contact the attorneys.

Tuesday, November 7, 2017

Morning Session - 9:30 a.m.

153309, People of MI v Andrew Maurice Randolph

A jury convicted defendant of second-degree murder and weapons charges for the fatal shooting of his girlfriend's mother. On appeal, defendant raises several issues, including claims that two police officers who had not performed a gunshot residue test on defendant's hands should have been precluded from testifying that the result of the test was positive, and that defendant's trial attorney rendered ineffective assistance by failing to object to the testimony. The Court of Appeals affirmed defendant's convictions in an unpublished per curiam opinion. The Supreme Court has directed oral argument on defendant's application for leave to appeal to address: (1) whether a defendant's failure to demonstrate plain unpreserved error precludes a finding of ineffective assistance of trial counsel; and, in particular, (2) whether the prejudice standard under the third prong of the plain error test, People v Carines, 460 Mich 750, 763-764 (1999) ("affecting substantial rights"), is the same as the prejudice standard in Strickland v Washington, 466 US 668, 694 (1984) ("reasonable probability" of a different outcome). See United States v Dominguez Benitez, 542 US 74, 83 (2004); People v Fackelman, 489 Mich 515, 537 n 16 (2011); People v Kowalski, 489 Mich 488, 510 n 38 (2011).

153893, Julie A. Pucci v 19th Judicial District Court

Plaintiff Julie Pucci filed a federal court action under 42 USC 1983 against 19th District Court Judge Mark W. Somers, alleging wrongful termination. A jury found in plaintiff's favor, resulting in entry of a judgment exceeding $1.1 million. Days before the federal court trial began, Judge Somers, in his role as chief judge, adopted an indemnification policy providing that the 19th District Court would indemnify judges of the court against judgments for discretionary administrative decisions made within the scope of their authority. Plaintiff served a writ of garnishment on defendant court to enforce its obligation to indemnify Judge Somers. Both parties filed motions for summary disposition on the issue of liability. The circuit court held that defendant court was responsible for the unpaid judgment under the indemnification policy. The Court of Appeals reversed in an unpublished per curiam decision, holding that Judge Somers could adopt an indemnification policy that covered court employees and judges while acting in their official capacity, but he did not have the authority to adopt a policy that would indemnify judges for liability incurred in their personal capacity. The Supreme Court has granted leave to appeal to address: (1) whether the chief judge of a district court possesses the authority to adopt an employee indemnification policy on behalf of the district court, MCL 691.1408(1); MCR 8.110(C); (2) if a chief judge possesses such authority, whether the judge may adopt a policy that indemnifies employees for liability incurred in their individual capacities; and (3) whether the conduct of Judge Somers that gave rise to the judgment against him in the federal district court occurred "while in the course of employment and while acting within the scope of his . . . authority." MCL 691.1408(1).

152567, People of MI v Daniel Horacek

In 2013, defendant entered a conditional no contest plea to unarmed robbery and was sentenced as a fourth-offense habitual offender to serve a prison term. Defendant's plea was conditioned on his ability to challenge on appeal the legality of his arrest by the police who forcibly entered his motel room without a warrant. On remand from the Supreme Court, the Court of Appeals issued an unpublished per curiam opinion, holding that defendant's warrantless arrest did not violate his Fourth Amendment rights, and, therefore, affirming his conviction. The Court of Appeals further held in dicta that, even assuming a Fourth Amendment violation occurred, defendant's plea was not conditional pursuant to MCR 6.301(C)(2) and People v Reid, 420 Mich 326 (1984). The Supreme Court has directed oral argument on defendant's application for leave to appeal to address: (1) whether exigent circumstances authorized the officers' warrantless entry into defendant's motel room; and (2) if a constitutional violation did occur, whether defendant is entitled to withdraw his plea, compare MCR 6.301(C)(2) with Reid, 420 Mich at 337.

Afternoon Session - Approximately 1:00 p.m.

154026, Atlantic Casualty Ins Co v Gary Gustafson

Andrew Aho contracted with Gary Gustafson to perform landscaping work on his property. In the course of watching Gustafson work, Aho was injured. He filed a personal injury lawsuit against Gustafson, who tendered the defense of the lawsuit to his commercial general liability insurer, plaintiff Atlantic Casualty Insurance Company. Plaintiff then filed this declaratory judgment action against Gustafson, and both parties moved for summary disposition. Plaintiff argued that a policy exclusion entitled "Exclusion of Injury to Employees, Contractors and Employees of Contractors" applied in this case. The exclusion barred coverage for "bodily injury" to any "contractor," which was defined in the policy to include "any property owner." Therefore, plaintiff argued that the exclusion applied because Aho, as the property owner, was a "contractor" within the meaning of the policy exclusion. The circuit court agreed with plaintiff and granted its motion for summary disposition. In a published opinion, the Court of Appeals reversed and remanded for entry of an order granting summary disposition to Gustafson, holding that the phrase "any property owner" is ambiguous and the more plausible interpretation is that it refers to "those who are being compensated, or who otherwise have a commercial interest, for being on the job site." The Supreme Court has directed oral argument on plaintiff's application for leave to appeal to address: (1) whether the phrase "any property owner" in the insurance policy is ambiguous; (2) whether a property owner must have a commercial interest in the project before the exclusion applies to that property owner, and what constitutes such a "commercial interest"; and (3) what weight, if any, should be given to the title of the exclusion.

154358, Steven Iliades v Dieffenbacher North America

Plaintiff Steven Iliades was seriously injured at his place of employment when he partially climbed into a 500-ton rubber molding press machine without turning the machine off and was trapped when the machine cycled. He filed a lawsuit against defendant Dieffenbacher North America, Inc., the manufacturer of the machine, alleging negligence and breach of warranty. Defendant moved for summary disposition on the ground that it could not be held liable because plaintiff's action of partially climbing into the machine constituted "misuse" of the machine that was not reasonably foreseeable. MCL 600.2945(e) (defining "misuse"); MCL 600.2947(2) (providing that a manufacturer is not liable for harm caused by misuse of a product unless the misuse was reasonably foreseeable). The trial court agreed with defendant and granted its motion for summary disposition. In an unpublished split decision, the Court of Appeals reversed, holding that the misuse in this case was reasonably foreseeable because employees were trained on a safety device to stop the machine from cycling and it was common for employees to stop the machine and reach into it to retrieve parts. The dissenting judge would have affirmed on the basis that the undisputed evidence showed that the misuse was unprecedented and therefore not reasonably foreseeable. The Supreme Court has directed oral argument on plaintiff's application for leave to appeal to address whether plaintiff's conduct prior to being injured constituted misuse of the press machine that was reasonably foreseeable.

154374, People of MI v Edward Pinkney

In 2014, defendant Edward Pinkney was part of an effort to recall the then-mayor of Benton Harbor. On January 3, 2014, defendant signed a certificate attesting to the validity of the signatures on the recall petitions that he had circulated. He and the sponsor of the recall submitted the petitions to the county clerk on January 8, 2014. The mayor challenged the validity of some of the signature dates on the petitions, and a forensic analysis revealed that some of the signature dates certified by defendant had been altered to fall within the 60-day validity period. MCL 168.961(2)(d). Defendant was charged with multiple counts of felony election forgery, MCL 168.937, and misdemeanor making a false statement in a certificate of a recall petition, MCL 168.957. A jury acquitted him of the misdemeanor charges but convicted him of the felony charges. The Court of Appeals affirmed in a published decision. The Supreme Court has directed oral argument on defendant's application for leave to appeal to address: (1) whether the trial court abused its discretion when it admitted other-acts evidence under MRE 404(b) of defendant's unrelated political and community activities for the purpose of demonstrating a motive to commit the crimes; and (2) whether the Court of Appeals erred in determining that MCL 168.937 creates the substantive offense of election forgery and is not merely a penalty provision for the specific forgery offenses set forth in other provisions of Michigan election law.

Wednesday, November 8, 2017

Morning Session - 9:30 a.m.

154364, Grass Lk Improvement Bd v Dep't of Environmental Quality

The Grass Lake Improvement Board (Board) filed an application with the Michigan Department of Environmental Quality (DEQ) seeking a permit to use an "augmentation well" to pump water into Grass Lake to increase its water level. The DEQ denied the application. The Board filed a petition seeking review of the DEQ's decision in a contested case before an administrative law judge (ALJ). The pivotal issue in the contested case was whether the Board's proposed augmentation well would "enlarge" Grass Lake pursuant to MCL 324.30102(1) of the Natural Resources and Environmental Protection Act. The Board argued that raising the water level by constructing an augmentation well did not constitute an enlargement of Grass Lake. The DEQ responded that adding water to a lake to increase its volume and surface area is the definition of "enlarge." The DEQ acknowledged that its interpretation of MCL 324.30102(1) was contrary to its own rules, see Mich Admin Code, R 281.811(1)(e), but, nevertheless, argued that when an administrative rule conflicts with the plain meaning of a statute, it must abide by the statute. The ALJ ruled in the Board's favor, leading the Board to seek recovery of its attorney fees on the basis that the DEQ's legal position was "devoid of arguable legal merit" under MCL 24.323(1). The ALJ denied the request for attorney fees, finding that the DEQ's legal position had at least some arguable legal merit. On judicial review, the circuit court reversed, but, in a published opinion, the Court of Appeals reversed the circuit court and reinstated the ALJ's decision. The Supreme Court has directed oral argument on the Board's application for leave to appeal.

155152, In re Hill, Minors

A family court terminated respondent mother's parental rights to her two minor children after she failed to adequately comply with a service plan. On appeal, she argued that the family court obtained jurisdiction over the children by a flawed adjudication process during which she was not advised of her rights or the consequences of her plea, as required by MCR 3.971(B)(3) and (4). The Court of Appeals acknowledged the error, but held that respondent could not mount a collateral challenge to jurisdiction after her parental rights were terminated, citing In re Hatcher, 443 Mich 426 (1993). The Supreme Court has directed oral argument on respondent's application for leave to appeal to address: (1) whether Hatcher correctly held that the collateral attack rule applied to bar respondent from challenging the family court's initial exercise of jurisdiction on appeal from an order terminating parental rights in that same proceeding; (2) if not, (a) by what standard should courts review a respondent's challenge to the initial adjudication, in light of a respondent's failure to appeal the first dispositional order appealable of right, see MCR 3.993(A)(1), and (b) what must a respondent do to preserve for appeal any alleged errors at the adjudication phase, see e.g., In re Hudson, 483 Mich 928 (2009); and (3) if Hatcher was correctly decided, whether due process concerns may override the collateral bar rule. See In re Sanders, 495 Mich 394 (2014); In re Wangler, 498 Mich 911 (2015).

153979, Marlette Auto Wash v Van Dyke SC Properties

In this property dispute between two adjacent businesses, customers of plaintiff Marlette Auto Wash used a shopping center parking lot to access the car wash. When defendant Van Dyke Properties purchased the shopping center, it asked plaintiff to contribute to parking lot maintenance and insurance. Plaintiff claimed it had a prescriptive easement created by the open, notorious, adverse, and continuous use of the parking lot property for at least fifteen years by the prior owners of the car wash, which allowed plaintiff's customers to continue using the shopping center parking lot for egress and ingress to the car wash. Plaintiff argued that its prescriptive easement claim was supported by the fact that the owner of Van Dyke Properties built the car wash and, at that time, began using the parking lot as an entrance. The circuit court granted plaintiff's prescriptive easement claim and denied defendant's counterclaim to quiet title and for damages. On appeal, the Court of Appeals issued an unpublished per curiam opinion that affirmed in part, reversed in part, and remanded for entry of a judgment in the defendant's favor. The Court of Appeals held that the circuit court erred in granting plaintiff a prescriptive easement because plaintiff failed to establish privity of estate between it and the car wash's prior owner. The Court of Appeals concluded that a prescriptive easement did not vest with plaintiff based on the continuous, open, notorious, and adverse use by a prior owner, even if that use was for at least fifteen years, because the prior owner did not take action to claim a prescriptive easement. The Supreme Court has granted leave to address whether open, notorious, adverse, and continuous use of property for at least fifteen years creates a prescriptive easement that is an easement appurtenant, without regard to whether the owner of the dominant estate took legal action to claim the easement. Afternoon Session - Approximately 1:00 p.m.

154117-9, AFT Michigan v State of Michigan

In response to a budget shortfall in the public school system, the Legislature enacted 2010 PA 75, which modified retirement benefits for public school employees. One statute, MCL 38.1343e, required all current public school employees to contribute 3percent of their salaries to a retirement system to assist in funding retiree healthcare benefits. Plaintiffs, a large group of public school employee unions, challenged the constitutionality of this act and the approximately $550 million in withheld wages. After the Court of Claims ruled that 2010 PA 75 was unconstitutional, the Court of Appeals affirmed in a split opinion, holding that MCL 38.1343e violated the Contract Clause, Takings Clause, and Due Process Clause. The Legislature then enacted 2012 PA 300 in an apparent effort to fix any constitutional infirmities with 2010 PA 75. Notably, MCL 38.1391a(5) enabled public school employees to opt out of retiree healthcare and avoid paying the 3percent retiree healthcare contribution. Also, MCL 39.1391a(8) established a retirement allowance that allowed employees who paid the contributions but subsequently failed to qualify for benefits to be reimbursed. The Court of Appeals upheld 2012 PA 300 against a constitutional challenge, and the Supreme Court affirmed. Thereafter, the Supreme Court vacated the Court of Appeals opinion interpreting 2010 PA 75 and remanded for that court to consider "what issues presented in these cases have been superseded by the enactment of 2012 PA 300 and this Court's decision upholding that Act, and it shall only address any outstanding issues the parties may raise regarding 2010 PA 75 that were not superseded or otherwise rendered moot by that enactment and decision." 498 Mich 851 (2015). On remand, the Court of Appeals held, in a split opinion, that 2010 PA 75 was unconstitutional and that 2012 PA 300 did not supersede or render those constitutional issues moot. The Supreme Court has granted leave to appeal to address the issue of the constitutionality of 2010 PA 75.

154437, Bruce Millar v Construction Code Authority

Plaintiff Bruce Millar was a building/plumbing inspector employed by defendant Construction Code Authority (CCA), which is a multi-governmental inspection and development control agency serving cities, townships, and villages in the Lapeer County area. Defendants Imlay City and Elba Township contracted with the CCA for licensed inspectors. In 2014, the City and the Township notified the CCA that they no longer wanted plaintiff to perform inspections within their borders. No reason was given. Plaintiff filed a three-count complaint against defendants, alleging: (1) a violation of the Whistleblowers Protection Act, MCL 15.361 et seq.; (2) wrongful termination in violation of public policy; and (3) conspiracy to effectuate wrongful termination. Defendants moved for summary disposition on the ground that the WPA claim was time-barred and that the remaining two claims were identical to the WPA claim and, thus, were preempted. The circuit court granted summary disposition to defendants. The Court of Appeals affirmed in an unpublished per curiam opinion. The Supreme Court has directed oral argument on plaintiff's application for leave to appeal to address whether his claim under the WPA was barred by the 90-day limitation period set forth in MCL 15.363(1).