The Michigan Supreme Court (MSC) will hear oral arguments in 10 cases on Wednesday, January 11, 2023, beginning at 1:00 p.m.; and Thursday, January 12, 2023, 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.
The 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.
Wednesday, January 11, 2023
Afternoon Session – 1 p.m.
161513
PEOPLE OF THE STATE OF MICHIGAN, (attorney Deborah Blair)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Wayne - Roberson, D.)
ROBERT YARBROUGH, JR., (attorney Steven Helton)
Defendant-Appellant.
The defendant was convicted of multiple felonies following a jury trial. His primary issue on appeal concerns the trial court’s jury selection practice under which a party could only exercise peremptory challenges to newly-seated prospective jurors who replaced a dismissed juror, and parties were not permitted to peremptorily challenge any seated juror on whom the party had already passed. The Court of Appeals affirmed the defendant’s convictions in an unpublished opinion. The Court of Appeals agreed with the defendant that the trial court’s jury selection practice was an abuse of discretion, but rejected the defendant’s argument that the error required automatic reversal and held that the error was harmless. The Supreme Court has granted leave to appeal to address: (1) whether the erroneous denial of a defendant’s peremptory challenge is reviewed for harmless error, is subject to automatic reversal, or is subject to some different standard of review, see People v Kabongo, 507 Mich 78 (2021) (Docket No. 159346); and (2) if harmless error applies, who bears the burden of proving that the error was harmless.
162373
PEOPLE OF MICHIGAN, (attorney Gabrielle O’Connor)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Wayne - Boykin, U.,)
DAMETRUIS BENJAMIN POSEY, (attorney Adrienne Young)
Defendant-Appellant.
To be argued with No. 162497, People v Stewart.
Following a jury trial, the defendant was convicted of assault with intent to murder (22 to 40 years), carrying a concealed weapon, carrying a weapon with unlawful intent, felon in possession of a firearm (4 to 10 years each), and four counts of second-offense felony-firearm (5 years). In the Court of Appeals, the defendant challenged the identification procedures and also argued that his sentence was disproportionate. The Court of Appeals affirmed in a published opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the defendant was denied his right to due process when witness T. B. was allowed to identify him at trial, or denied the effective assistance of counsel when trial counsel failed to object to the witness’ in-court identification testimony; (2) whether the requirement in MCL 769.34(10) that the Court of Appeals affirm any sentence within the guidelines range, absent a scoring error or reliance on inaccurate information, is consistent with the Sixth Amendment, the due-process right to appellate review, and People v Lockridge, 498 Mich 358 (2015); and, if not, (3) whether the appellant’s sentence is reasonable and proportionate. The Court directed the Clerk to schedule the oral argument in this case for the same session of the Court when it will hear oral argument in People v Stewart (Docket No. 162497).
162497
PEOPLE OF MICHIGAN, (attorney Timothy Baughman)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Wayne - Callahan, M.,)
JOSHUA LAMAR-JAMES STEWART, (attorney Marilena David-Martin)
Defendant-Appellant.
To be argued with No. 162373, People v Posey.
Following a jury trial, the defendant was convicted of three counts of armed robbery and one count each of assault with intent to do great bodily harm, receiving or concealing stolen property, and felony-firearm. The trial court sentenced the defendant to 23 to 46 years for the armed robbery convictions and lesser terms for the other convictions. The trial court denied the defendant’s pretrial motion to suppress his statements to the police on the ground that those statements were involuntary, and the Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the statement the defendant made to the police was not voluntary because the interrogating officers employed overly coercive tactics, including promises of leniency. People v Conte, 421 Mich 704 (1984), see also People v Shipley, 256 Mich App 367, 373 (2003); (2) whether the requirement in MCL 769.34(10) that the Court of Appeals affirm any sentence within the guidelines range, absent a scoring error or reliance on inaccurate information, is consistent with the Sixth Amendment, the due-process right to appellate review, and People v Lockridge, 498 Mich 358 (2015); and, if not, (3) whether the defendant’s sentence is reasonable and proportionate. The Court directed the Clerk to schedule the oral argument in this case for the same session of the Court when it will hear oral argument in People v Posey (Docket No. 162373).
162743
PEOPLE OF THE STATE OF MICHIGAN, (attorney Kimberly Manns)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Kent CC - Trusock, M.)
MARCUS LAVELL LEWIS, (attorney Jason Eggert)
Defendant-Appellant.
Police officers witnessed what they believed was an exchange of drugs for money between the defendant and another man in the defendant’s vehicle in a party store parking lot. The police obtained a search warrant for the defendant’s home and claim to have found cocaine and heroin during the search of the home. The defendant was convicted of various drug offenses and was sentenced to 10 to 60 years in prison. The defendant claims that his Fourth Amendment rights were violated because the search warrant failed to establish a nexus between the alleged drug trafficking and his home. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the search warrant affidavit established a sufficient nexus between the alleged drug trafficking and defendant’s home, see Illinois v Gates, 462 US 213, 238 (1983); compare United States v Brown, 828 F3d 375 (CA 6, 2016), with United States v White, 874 F3d 490 (CA 6, 2017), and United States v Reed, 993 F3d 441 (CA 6, 2021); and (2) if not, whether the officers relied on the search warrant in good faith. People v Goldston, 470 Mich 523 (2004).
162970
PEOPLE OF MICHIGAN, (attorney Timothy Baughman)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Wayne - Thomas, R.)
RAMI ALI JABER, (attorney Alona Sharon)
Defendant-Appellant.
The defendant owned a convenience store. When a disruptive customer refused the defendant’s request that he leave the store, the defendant came out from behind the bulletproof glass that surrounded the cashier area, sprayed mace at the customer, and then fatally shot him. The defendant testified that he thought the customer was reaching for a gun and that he acted in self-defense, but he was convicted by a jury of second-degree murder and felony-firearm. The trial court sentenced the defendant to 35 years to 50 years for second-degree murder. The Court of Appeals affirmed the defendant’s convictions and sentences in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether: (1) the Wayne Circuit Court erred by scoring Offense Variable (OV) 5 (psychological injury to a member of the victim’s family) at 15 points; and (2) the defendant is entitled to resentencing because: (a) his sentence is unreasonable or disproportionate; (b) the trial court erred by taking into account his refusal to admit his guilt; or (c) the trial court erred by sentencing him on the basis of acquitted conduct or facts not found in the record.
Thursday, January 12, 2023
Morning Session – 9:30 a.m.
163515
TRUGREEN LIMITED PARTNERSHIP, (attorney John Bursch)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Talbot, M.)
DEPARTMENT OF TREASURY, (attorney David Thompson)
Defendant-Appellee.
Michigan’s use tax exempts property consumed in the tilling, planting, caring for, or harvesting things of the soil, or in the breeding, raising or caring of livestock, poultry or horticultural products for further growth. MCL 205.94(1)(f). For partial tax year 2012, TruGreen sought an exemption for its use of fertilizers, herbicides, and insecticides to care for its customers’ lawns and plants. The Department of Treasury denied the refund claim.
TruGreen appealed, and the Court of Claims granted summary disposition to the Department. The Court of Appeals affirmed in a 2-1 published opinion. The Supreme Court remanded the case to the Court of Appeals for reconsideration in light of TOMRA of North America, Inc v Dep’t of Treasury, 505 Mich 333 (2020). On remand, the Court of Appeals again affirmed in a 2-1 published opinion. The Supreme Court has ordered oral argument on the application to address whether TruGreen qualifies for the use tax exemption in MCL 205.94(1)(f) because its consumption or use of fertilizers, herbicides, and insecticides constitutes “caring for . . . things of the soil . . . .”
163902
DAVINA GRADY,
Plaintiff,
and
LIVONIA CARE PHARMACY, LG TRANSPORTATION & MANAGEMENT, INC, and NORTHLAND RADIOLOGY, INC,
Intervening Plaintiffs,
and
MERCYLAND HEALTH SERVICES, PLLC, (attorney Paul Valentino)
Intervening Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Wayne CC - Smith, L.)
STEVEN PATRICK WAMBACH and JOHN P. O’SULLIVAN DISTRIBUTING,
Defendants,
and
MEEMIC INSURANCE COMPANY, (attorney Sidney Klingler)
Defendant-Appellant.
Mercyland Health Services, PLLC provided medical treatment to Davina Grady after she was injured in a motor vehicle accident involving Steven Wambach. Mercyland’s sole member and manager, Dr. Mohammed Abraham, was not licensed to practice medicine in Michigan when Mercyland provided treatment to Grady. Grady’s insurer, Meemic Insurance Company, refused to pay personal protection insurance benefits related to Mercyland’s services and Grady filed suit. Mercyland obtained an assignment of rights from Grady and intervened. The trial court granted summary disposition in favor of Meemic, finding that Mercyland did not lawfully render treatment to Grady under MCL 500.3157 because Dr. Abraham was not licensed in Michigan, as is required by MCL 450.4904(2). The Court of Appeals, in a 2-1 published opinion, reversed the trial court, holding that Meemic lacks statutory standing to challenge the alleged improper formation of a professional limited liability company. The Supreme Court has granted leave to appeal to address whether an insurance company has statutory standing to challenge whether the members and managers of a healthcare provider incorporated as a professional limited liability company (PLLC) are properly licensed in this state as required by the Michigan Limited Liability Company Act (MLLCA), MCL 450.4904(2). See Miller v Allstate Ins Co, 481 Mich 601 (2008), and Sterling Heights Pain Mgt v Farm Bureau Gen Ins Co of Mich, 335 Mich App 245 (2020).
163320
SOARING PINE CAPITAL REAL ESTATE AND DEBT FUND II, LLC, (attorney Mark Granzotto)
Plaintiff/Counter Defendant-Appellee/Cross-Appellant,
v
(Appeal from Ct of Appeals)
(Oakland CC - Anderson, M.)
PARK STREET GROUP REALTY SERVICES, LLC, PARK STREET GROUP, LLC, and DEAN J. GROULX, (attorney Mary Massaron)
Defendants/Counterplaintiffs-Appellants/Cross-Appellees.
The plaintiff loaned the defendants $1 million at a 20% interest rate, but the loan contract included fees and charges that arguably pushed the rate over the 25% limit set forth in the criminal usury statute, MCL 438.41. After the defendants stopped making payments on the loan, the plaintiff filed a lawsuit alleging breach of contract and fraud. The defendants filed a counterclaim alleging breach of contract and fraud. The trial court denied the parties’ cross-motions for summary disposition. The court held that the interest rate violated MCL 438.41 and prevented the plaintiff from collecting interest. But the court declined to apply the wrongful conduct rule to bar the plaintiff from collecting the principal of the loan. The Court of Appeals, in a published opinion, affirmed on different grounds, holding that the original contract was not usurious on the basis of a usury savings clause in the contract, but that the plaintiff violated MCL 438.41 by filing the lawsuit. The Court of Appeals held that the trial court properly applied the wrongful conduct rule by precluding the plaintiff from collecting any interest, but allowing the plaintiff to recover the principal of the loan. The Supreme Court has ordered oral argument on the application to address: (1) whether a usury-savings clause is void as a violation of public policy; (2) whether the plaintiff violated the criminal usury statute, MCL 438.41, by seeking to collect on the contract in court or by engaging in any other acts that violated the statute; and (3) if the plaintiff violated MCL 438.41, whether it is barred by the wrongful conduct rule from recovering the principal on the loan.
162311
PEOPLE OF THE STATE OF MICHIGAN, (attorney Michael Schuitema)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Emmet CC - Johnson, C.)
BENONI JONATHAN ENCISO, (attorney Michael Mittlestat)
Defendant-Appellant.
The defendant pled guilty to four counts of using a computer to commit a crime and three counts of capturing or distributing images of an unclothed person. The defendant was not physically present at sentencing, but participated via videoconference. The defendant did not waive, on the record, his right to be physically present at sentencing. The trial court sentenced the defendant to 4.5 to 7 years for using a computer to commit a crime and 2 to 5 years for capturing or distributing images of an unclothed person. The defendant filed an application for leave to appeal to the Court of Appeals, arguing in part that he was entitled to resentencing because he was not physically present at his sentencing. The Court of Appeals denied the application, 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 in an unpublished opinion, holding that although it was plain error for the trial court to sentence the defendant by videoconference and the record failed to show that he waived his right to be physically present, he did not establish prejudice. The Supreme Court has ordered oral argument on the application to address: (1) whether a defendant’s unpreserved claim regarding his or her lack of physical presence at sentencing is subject to review for plain error; (2) whether lack of presence at sentencing is structural error; (3) if the error is not structural how a defendant could show the error affected the outcome of the lower court proceedings; and (4) if the error is structural how a prosecutor could rebut the presumption that the error seriously affected the fairness, integrity or public reputation of judicial proceedings. See People v Davis, ___ Mich ___ (2022) (Docket No. 161396).
Thursday, January 12, 2023
Afternoon Session – 12:30 p.m.
163775
JOHN DOE and JANE DOE, (attorney Valdemar Washington)
Plaintiffs-Appellants,
v
(Appeal from Ct of Appeals)
(Genesee CC - Behm, K.)
GENERAL MOTORS, LLC, (attorney Jill Wheaton)
Defendant-Appellee.
Plaintiff John Doe (the actual names of the plaintiffs have been replaced with John Doe and Jane Doe) was injured at work while operating a die press. The plaintiffs brought this action against John Doe’s employer alleging an intentional tort. Prior to the close of discovery, the defendant moved for summary disposition, arguing that this action is prohibited by MCL 418.131(1), the exclusive remedy provision of the Worker’s Disability Compensation Act of 1969, MCL 418.101 et seq. The trial court agreed and granted summary disposition. The Court of Appeals affirmed in a 2-1 unpublished opinion. The Court of Appeals majority rejected the plaintiffs’ contention that the trial court was required to permit discovery prior to ruling on the defendant’s motion, finding that the plaintiffs failed to explain how discovery was likely to advance their case. The dissent viewed the granting of the motion for summary disposition as premature without discovery. The Supreme Court has ordered oral argument on the application to address whether the Genesee Circuit Court erred by granting summary disposition to the defendant under the intentional tort exception to the exclusive remedy provision of the Worker’s Disability Compensation Act of 1969, MCL 418.101 et seq., because further discovery presented a fair likelihood of yielding support for the plaintiffs’ position. Kern v Kern-Koskela, 320 Mich App 212, 227 (2017), quoting Liparoto Constr, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 33-34 (2009).
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