The Michigan Supreme Court (MSC) will hear oral arguments in 12 cases on, Tuesday, April 4, beginning at 12:30 p.m.; and Wednesday, April 5, beginning at 9:30 a.m., in the Supreme Court courtroom on the 6th floor of the Michigan Hall of Justice, 925 W. Ottawa, Lansing on both days. Oral arguments will be livestreamed from the MSC website.
The notice of cases is posted on the Supreme Court’s oral arguments web page. Residents can follow the court on Twitter to receive regular updates as cases are heard.
These following brief accounts may not reflect the way that some or all of the court’s seven justices view the case. The attorneys may also disagree about the facts, issues, procedural history, and significance of this case. For further details, contact the attorneys.
Tuesday, April 4, 2023
Afternoon Session – 12:30 p.m.
162260
In re: TRACY E. GREEN, JUDGE 3rd CIRCUIT COURT
JTC Formal Complaint 103
Attorney for the JTC Mark Magyar
Attorney for Respondent Judge Michael Ashcraft
On November 10, 2020, the Judicial Tenure Commission (JTC) filed a formal complaint alleging two counts of misconduct against Judge Tracy E. Green (respondent) of the 3rd Circuit Court. The Supreme Court appointed retired District Judge Betty R. Widgeon as master. The JTC subsequently filed an amended three-count complaint. Following 11 days of hearings, the master issued her findings of fact and conclusions of law on February 28, 2022. With respect to Count I of the complaint, the master found that the respondent knowingly concealed evidence that her son was abusing her grandsons. With respect to Count II, the master found that the respondent made false statements, including to the JTC, about her knowledge of the abuse. The master found that disciplinary counsel did not meet their burden of proof with respect to Count III. After hearing objections to the master’s report, the JTC accepted and adopted the master’s findings of misconduct and recommended the respondent’s removal from office. The respondent filed a petition for review and oral argument will be held before the Supreme Court pursuant to MCR 9.251(G).
163382-3
SPENCER WOODMAN, (attorney Robert Riley)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Stephens, C.)
DEPARTMENT OF CORRECTIONS, (attorney Adam DeBear)
Defendant-Appellee.
In response to a fatal altercation in one of the defendant’s correctional facilities, the plaintiffs, who are journalists, submitted requests under Michigan’s Freedom of Information Act (FOIA) seeking video and audio recordings of the altercation from the defendant. The defendant denied their requests, asserting that the records were exempt from disclosure under MCL 15.243(1)(c) (the penal security exemption).
The plaintiffs each filed complaints in the Court of Claims, arguing that the defendant wrongfully denied their requests under the FOIA. The Court of Claims ordered the defendant to produce the audio recordings and redacted video recordings to the plaintiffs. The court subsequently held that the plaintiffs had prevailed in full and accordingly were statutorily entitled to reasonable attorney fees and costs under the FOIA. The plaintiffs were represented by the ACLU and Honigman LLP. The Court of Claims awarded the ACLU 100% of its requested attorney fees, but only awarded Honigman 10% of its attorney fees because it represented the plaintiffs on a pro bono basis. The court denied the plaintiffs’ request for punitive damages. The Court of Appeals, in an unpublished opinion, affirmed in part, reversed in part, and remanded for further proceedings. The Court of Appeals affirmed the order denying the plaintiffs punitive damages, reversed the order determining that the plaintiffs prevailed in full and are therefore statutorily entitled to attorney fees, costs, and disbursements under the FOIA, and remanded the case to the Court of Claims for it to determine whether the plaintiffs, having partially prevailed, should be awarded any, all, or a portion of their reasonable attorney fees, costs, and disbursements. The Supreme Court has ordered oral argument on the application to address: (1) whether the plaintiffs prevailed in full, and are thus statutorily entitled to attorney fees under MCL 15.240(6); (2) whether the Court of Claims abused its discretion when it reduced by 90% the attorney fees awarded to the plaintiffs based solely on the pro bono nature of Honigman LLP’s representation, notwithstanding the Court of Claims’ factual findings that Honigman’s hourly rates and the number of hours worked were reasonable; and (3) whether the Court of Claims clearly erred in denying the plaintiffs punitive damages under MCL 15.240(7).
163412
LEONARD WILSON, (attorney Anthony Paris)
Claimant-Appellant,
v
(Appeal from Ct of Appeals)
(Ingham CC - Jamo, J.)
MEIJER GREAT LAKES LIMITED PARTNERSHIP and UNEMPLOYMENT INSURANCE AGENCY, (attorney John Gehring)
Respondents-Appellees.
The claimant was absent from his employment for three consecutive days without contacting his employer (Meijer) after he was arrested and incarcerated in the county jail. An administrative law judge (ALJ) held that the claimant was disqualified from receiving unemployment benefits under the “no call, no show” provision of MCL 421.29(1)(a). The Michigan Compensation Appellate Commission (MCAC) affirmed the ALJ’s decision, the circuit court affirmed the MCAC, and the Court of Appeals denied the claimant’s application for leave to appeal. The Supreme Court remanded the case to the Court of Appeals for consideration as on leave granted. On remand, the Court of Appeals affirmed the circuit court in a 2-1 unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether the claimant was disqualified from receiving unemployment benefits because he was considered to have voluntarily left employment without good cause attributable to the employer under MCL 421.29(1)(a).
163501
BRANDY HILYARD, (attorney Shane Hilyard)
Petitioner-Appellant,
v
(Appeal from Ct of Appeals)
(Ingham CC - McCormick, L.)
DAVID JOHNSTON, No argument
Respondent-Appellee.
The parties divorced in New York in 2005, and the respondent was ordered to pay monthly child support. In 2010, the petitioner moved to Michigan with the parties’ children. In 2019, the parties’ youngest child turned 18 years old, and the respondent refused to pay further child support based upon an alleged oral agreement to stop support at that time. The petitioner subsequently registered the New York child support order in Michigan and attempted to enforce that order in Michigan courts. But the Michigan trial court concluded that it lacked personal jurisdiction over the respondent under the Uniform Interstate Family Support Act, MCL 552.2101 et seq., and that it had erroneously registered the New York child support order. The trial court subsequently dismissed the enforcement action. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether Michigan courts may exercise personal jurisdiction over the respondent under MCL 552.2201(h) of the Uniform Interstate Family Support Act; (2) whether the respondent’s failure to pay child support is “[t]he doing or causing an act to be done, or consequences to occur, in the state resulting in an action for tort” that permits Michigan courts to exercise personal jurisdiction over the respondent under MCL 600.705(2); and (3) whether there are sufficient minimum contacts for Michigan courts to exercise personal jurisdiction over the respondent consistent with the requirements of due process. See generally Moore v McFarland, 187 Mich App 214, 217-219 (1990); Rainsberger v McFadden, 174 Mich App 660, 666 (1989); Black v Rasile, 113 Mich App 601, 604 (1980).
164046
CARRIE PUEBLO, (attorney Reh Starks)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Kalamazoo CC - Gorsalitz, S.)
RACHEL HAAS, (attorney George Perrett)
Defendant-Appellee.
While the parties were in a same-sex relationship, they agreed to conceive a child through in-vitro fertilization. The defendant underwent in-vitro fertilization and gave birth to a child in November 2008. In 2020, after the parties ended their relationship, the plaintiff initiated this action under the Child Custody Act of 1970 (CCA), MCL 722.21 et seq., seeking joint legal and physical custody of the child. The defendant asserted that the plaintiff lacked standing to seek custody of the child under the CCA because she had neither a biological nor adoptive relationship with the child. The trial court granted the defendant’s motion for summary disposition, concluding that the plaintiff lacked standing. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has granted leave to appeal to address: (1) whether, in light of Obergefell v Hodges, 576 US 644 (2015), the equitable parent doctrine should be extended to provide standing to persons such as the plaintiff, who, at the time of the parties’ same-sex relationship, was not permitted by Michigan law to legally marry the defendant, and if so, (2) what the parameters of that extension should be.
Wednesday, April 5, 2023
Morning Session – 9:30 a.m.
163567
PATRICIA BATISTA, DAVID BRITTEN, TIMOTHYDONAHUE, AARON GAFFNEY, JOHN HEWITT, RONALD KOEHLER, AMY SWANTEK, CHRIS THOMSON, and MICHIGAN ASSOCIATION OF SUPERINTENDENTS AND ADMINISTRATORS, (attorney Robert Schindler)
Plaintiffs-Appellees,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Murray, C.)
OFFICE OF RETIREMENT SERVICES, MICHIGAN PUBLIC SCHOOL EMPLOYEES RETIREMENT SYSTEM, MICHIGAN PUBLIC EMPLOYEES RETIREMENT SYSTEM BOARD, PUBLIC SCHOOL EMPLOYEES RETIREMENT SYSTEM BOARD MEMBERS, and EXECUTIVE DIRCTOR OF RETIREMENT SERVICES. (attorney Patrick Fitzgerald)
Defendants-Appellants.
The plaintiffs are current or retired public school superintendents and administrators who work or worked under personal employment contracts, not collective bargaining agreements. They brought this action against the defendants in the Court of Claims, arguing that their pension benefits should be higher under the Michigan Public School Employees Retirement Act (the Retirement Act), MCL 38.1301 et seq. Part of the formula for determining such benefits is a member’s “final average compensation.” MCL 38.1303a(3)(f) provides, “Compensation does not include ... [c]ompensation in excess of an amount over the level of compensation reported for the preceding year except increases provided by the normal salary schedule for the current job classification.” Because normal salary schedules are typically set forth in collective bargaining agreements, this case involves the proper interpretation of MCL 38.1303a(3)(f) when there is no collective bargaining agreement, and therefore, no normal salary schedule. Defendant Office of Retirement Services (ORS) created normal salary increase (NSI) schedules to apply in these circumstances. The plaintiffs argue that the ORS did not have the authority to create NSI schedules. The Court of Claims granted the defendants’ motions for summary disposition, denied the plaintiffs’ motion for summary disposition, and dismissed the case. The Court of Appeals, in a published opinion, reversed and remanded for entry of a judgment in favor of the plaintiffs with respect to declaratory relief, holding that the Retirement Act does not authorize the ORS to create and implement NSI schedules. The Supreme Court has ordered oral argument on the application to address whether the Office of Retirement Services has the authority under the Michigan Public School Employees Retirement Act, MCL 38.1301 et seq., to create and implement normal salary increase schedules. See MCL 38.1303a(3)(f); MCL 38.1303a(5).
164489
In re HOLBROOK, Minor.
Attorney for respondent-appellant: Cecilia Quirindongo Baunsoe
Attorney for petitioner-appellee: Joseph Shada
LGAL for minor child: John Giancotti
The respondent’s 13-year-old son had a mental health history requiring treatment over a number of years. The respondent took him to a local hospital and he was then transferred to a mental health facility for inpatient treatment. After several weeks at the mental health facility, the child was transferred to a short-term crisis center to prepare for reintegration into the respondent’s home. The child threatened suicide if he was returned home with the respondent. The Department of Health and Human Services (DHHS) asked the respondent to complete Community Mental Health (CMH) forms that would have resulted in the child’s return to the home, but the respondent did not fill out the CMH paperwork because she feared for her safety and the safety of her sons. Consequently, the DHHS filed a temporary custody petition asking the Oakland Family Court to take jurisdiction over the child under MCL 712A.2(b)(1) and/or (2). Following a bench trial, the family court found that there was sufficient evidence to establish a statutory basis to exercise jurisdiction over the child pursuant to MCL 712A.2(b)(1) on the basis that the respondent neglected or refused to provide proper medical care by failing to complete the CMH documentation. The Court of Appeals, in an unpublished opinion, affirmed on the basis of In re Hockett, Minor, ___ Mich App ___ (2021) (Docket No. 353132). The Supreme Court has ordered oral argument on the application to address: (1) whether the Oakland Family Court correctly assumed jurisdiction over the minor child pursuant to MCL 712A.2(b)(1) under the circumstances of this case; (2) whether In re Hockett, Minor ___ Mich App ___ (2021) (Docket No. 353132), was correctly decided; and (3) whether the family court should have assumed jurisdiction over the child pursuant to MCL 712A.2(b)(3)(A).
163833
PEOPLE OF THE STATE OF MICHIGAN, (attorney Marilyn Day)
Plaintiff-Appellee,
v ?
(Appeal from Ct of Appeals)
(Oakland CC - Langford-Morris, D.)
JERARD NATHANIEL WELCH, (attorney Michael Skinnerº
Defendant-Appellant.
The defendant was charged with operating a motor vehicle while intoxicated causing serious impairment of a body function (OWICSI) following a car accident. The prosecution filed a motion in limine to exclude evidence of the snowy condition of the road on the night of the accident and evidence that the vehicle that the defendant's truck slid or fishtailed into his lane. The trial court granted the motion. The Court of Appeals granted the defendant’s interlocutory application for leave to appeal and, in a 2-1 unpublished opinion, affirmed the trial court in part. The Court of Appeals held that the trial court was wrong to conclude that OWICSI is a strict liability crime, but that it did not abuse its discretion in granting the prosecution’s motion. The Court of Appeals further held that although the evidence was not admissible for causation purposes, it was admissible as res gestae (background) evidence, and the trial court would have to give a limiting instruction to the jury regarding the evidence. The Supreme Court has ordered oral argument on the application to address whether the trial court abused its discretion by granting the prosecution’s motion in limine precluding the defendant from introducing evidence of inclement weather, roadway conditions, or the fishtailing of another vehicle, as causes of the collision that resulted in the victim’s injuries.
162966
PEOPLE OF THE STATE OF MICHIGAN, (attorney Victor Fitz)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Cass CC - Herman, M.)
RYAN RAY DEWEERD, (attorney Michael Waldo)
Defendant-Appellant.
While searching a home where the defendant was residing, police officers found methamphetamine. The defendant denied to the officers that he used methamphetamine or was aware of the methamphetamine components in the home. But the defendant subsequently pled guilty to maintaining a methamphetamine laboratory and admitted that he possessed the components and chemicals to manufacture methamphetamine. In determining the guidelines minimum sentence range, the trial court assessed 10 points for Offense Variable (OV) 19 on the basis that the defendant’s untruthful statements to the police officers about methamphetamine production at the home amounted to interference or attempted interference with the administration of justice. The trial court originally sentenced the defendant to three years’ probation, but following a probation violation, the trial court revoked his probation and sentenced him to 6½ to 40 years in prison for maintaining a methamphetamine laboratory.
The defendant filed a motion for resentencing, arguing that his statements to the police officers did not amount to interference with the administration of justice for purposes of scoring OV 19 and that defense counsel was ineffective for failing to object to the scoring of OV 19 at sentencing. The trial court denied the motion for resentencing, and the Court of Appeals denied the defendant’s application for leave to appeal. But the Supreme Court remanded the case to the Court of Appeals for consideration as on leave granted. On remand, the Court of Appeals affirmed the scoring of OV 19 in an unpublished opinion. The Supreme Court has granted leave to appeal to address whether a defendant who has generally disavowed knowledge of unlawful activity should be considered to have “interfered with or attempted to interfere with the administration of justice ...” MCL 777.49(c).
Wednesday, April 5, 2023
Afternoon Session – 12:30 p.m.
163937
PEOPLE OF THE STATE OF MICHIGAN, (attorney Amanda Smith)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Wayne CC - Cusick, P.)
LASHAWN DEWON MONROE, (attorney Emma Lawton)
Defendant-Appellant.
The defendant pled guilty to felon in possession of a firearm and felony-firearm. The trial court sentenced him to 18 months of probation for the felon-in-possession conviction and 2 years in prison for the felony-firearm conviction. The defendant appealed to the Court of Appeals, arguing that his separate convictions and sentences for the crimes of felony-firearm and felon in possession of a firearm arising out of the same act violate the prohibition against double jeopardy under the state and federal constitutions. The Court of Appeals denied the defendant’s application for leave to appeal. The Supreme Court has ordered oral argument on the application to address: (1) whether this Court’s decisions in People v Calloway, 469 Mich 448 (2003), and People v Ream, 481 Mich 223 (2008), were correctly decided; and (2) if not, whether they should nonetheless be retained under principles of stare decisis, Robinson v City of Detroit, 462 Mich 439, 463-468 (2000).
163742
VECTREN INFRASTRUCTURE SERVICES CORP., successor-in-interest to MINNESOTA LIMITED, INC., (attorney Lynn Gandhi)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Ct of Claims - O'Brien, C)
DEPARTMENT OF TREASURY, (attorney Justin Call)
Defendant-Appellant.
After the plaintiff acquired an out-of-state S Corporation in an asset sale, the defendant disagreed with the plaintiff’s calculation of its Michigan Business Tax. Although the plaintiff had included the gain on the sale as business income in its pre-apportioned tax base, it also included it in the denominator of the sales apportionment factor in calculating the business tax, which the defendant considered to be incorrect. This led the defendant to conduct an audit and issue a final assessment, including taxes, interest, and a late payment penalty. The defendant also denied the plaintiff’s request for an alternate method of apportionment under MCL 208.1309 of the Michigan Business Tax, prompting the plaintiff to file a lawsuit in the Court of Claims. The Court of Claims agreed with the defendant that the gain on the sale was “business income” and that the standard apportionment formula should be applied to calculate the tax, and granted the defendant summary disposition. The Court of Appeals, in a published opinion, agreed with the plaintiff that it was entitled to an alternate method of apportionment and reversed the Court of Claims. The Supreme Court remanded the case to the Court of Appeals, directing the Court of Appeals to address the plaintiff’s arguments regarding the proper method for calculating the business tax due under the statutory formula. The Court of Appeals in turn remanded the case to the Court of Claims to address that issue. On remand, the Court of Claims rejected the plaintiff’s arguments, agreed with the defendant’s application of the statutory formula, and granted the defendant summary disposition. The Court of Appeals, in a published opinion, affirmed the Court of Claims’ determination that the statutory apportionment formula was properly applied, but further held that it is unconstitutional as applied to the plaintiff. The Court of Appeals thus determined that the plaintiff was entitled to an alternate method of apportionment and remanded the case to the Court of Claims. The Supreme Court has ordered oral argument on the application to address: (1) whether the plaintiff established by clear and cogent evidence that “the business activity attributed to it in this state ‘is out of all appropriate proportion to the actual business activity transacted in this state and leads to a grossly distorted result’ ” under MCL 208.1309(3) of the Michigan Business Tax Act, MCL 208.1101 et seq.; (2) whether application of the statutory formula in this case runs afoul of the Due Process and Commerce Clauses incorporated in the statute because it does not fairly determine the portion of income from the sale of a business attributed to in-state activities; and (3) whether remand for the parties to determine an alternate method of apportionment conflicts with MCL 208.1309(2), which vests exclusive authority to approve an alternate method of apportionment in the Department of Treasury.
163741
REYES GALVAN, (attorney Jennifer Alberts)
Plaintiff-Appellee,
and
MINHWA KIM,
Plaintiff,
v
(Appeal from Ct of Appeals)
(Washtenaw CC - Connors, T.)
YAM FOO POON, HWAI-TZU HONG POON, and DANIEL Y. POON, (attorney Joseph Lloyd
Defendants-Appellants.
The plaintiffs purchased a condominium from the defendants and immediately noticed that there were various water leaks. In the process of determining and fixing the cause of the leaks, the plaintiffs discovered that the condominium had been structurally altered, violating the city building code. After the plaintiffs were sued by the city to bring the condominium up to code, they brought a lawsuit against the defendants, alleging various causes of action. At trial, the defendants moved for a directed verdict on the plaintiffs’ breach of warranty claim, asking the trial court to find as a matter of law that the building code violation did not constitute an “incumbrance” within the meaning of MCL 565.151, which governs warranty deeds. The trial court granted a directed verdict on that claim, but the jury found that the defendants failed to disclose material facts about the condition of the property and awarded damages to the plaintiffs. The plaintiffs argued on appeal that the trial court erred when it held that the building code violation was not an “incumbrance.” The Court of Appeals agreed, and reversed and remanded the case to the trial court for further proceedings. The Supreme Court has ordered oral argument on the application to address whether the covenant of title under MCL 565.151, which states that the premises “are free from all incumbrances,” includes a covenant that the structure of the premises conforms to currently applicable building codes.
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