Michigan Supreme Court Calendar

A dispute involving Michigan’s eavesdropping statute – and whether it was violated when rap tour promoters videotaped a meeting with Detroit officials – will come before the Michigan Supreme Court in oral arguments this week.

The plaintiffs in Bowens, et al. v ARY, Inc., et al. went to Detroit’s Joe Louis Arena in 2000 to express concerns about a sexually explicit video that was to be shown during the “Up in Smoke” tour performance that evening. Gregory J. Bowens, then press secretary to former Mayor Dennis Archer, was accompanied by Detroit Police spokeswoman Paula M. Bridges and police commander Gary A. Brown. According to the plaintiffs, they met with tour promoters in a backstage room and insisted on the conversation not being taped, but tour promoters videotaped them without their knowledge. Portions of that video later appeared in a “bonus track” entitled “Detroit Controversy,” which was marketed with the “Up in Smoke” tour DVD. A Michigan Court of Appeals panel split on the issue of whether the plaintiffs can proceed with their eavesdropping claim; the majority held that the plaintiffs had presented sufficient evidence to go to a jury with their claim, while the dissenting judge maintained that there was insufficient evidence to show that the plaintiffs had “a reasonable expectation that their conversation with tour officials would be private, let alone that it would not be recorded.” The defendants appealing that 2009 Court of Appeals decision include rap performer Dr. Dre, who organized and performed in the “Up in Smoke” tour.

The court will also hear arguments in In re Investigative Subpoenas, Grand Traverse County Prosecutor v Meijer, Inc., et al., in which a county prosecutor is investigating whether Meijer, Inc, violated state campaign finance laws when it promoted a recall – ultimately unsuccessful – of Acme Township Board members who opposed the construction of a new Meijer store in the area. At issue is whether the county prosecutor has the authority to investigate and prosecute violations of the Michigan Campaign Finance Act, MCL 169.201 et seq. A circuit judge quashed subpoenas that the prosecutor directed to Meijer and employees of the Dickinson Wright law firm, saying that only the Secretary of State and Attorney General have the power to investigate campaign finance law violations. But the Michigan Court of Appeals disagreed, finding that the campaign finance law did not contain any language expressly indicating that the legislature intended to prevent county prosecutors from “entertain[ing] the criminal prosecution of campaign finance law violators.”

The remaining 15 arguments involve issues of civil procedure, civil rights, criminal, governmental immunity, medical malpractice, property, tax, and worker’s compensation law.

Court will be held on Jan. 19, 20, and 21, beginning at 9:30 a.m. each day. Oral arguments are open to the public.

(Please note: the summaries that follow are brief accounts of complicated cases and 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, the issues, the procedural history, or the significance of their cases. Briefs are online at http://www.courts.michigan.gov/supremecourt/Clerk/MSC_orals.htm.)

Wednesday, January 19
Morning Session

PEOPLE v HAILEY (case nos. 140514-5)
Prosecuting attorney: David A. McCreedy.
Attorney for defendant Arthur Ronald Hailey, III: Douglas W. Baker.
Attorneys for amicus curiae Criminal Defense Attorneys of Michigan, National Legal Aid and Defender Association, and the Innocence Network: John R. Minock, Stuart G. Friedman, David A. Moran.
Trial Court: Wayne County Circuit Court

At issue: Following a traffic stop, the defendant was arrested on outstanding warrants; the vehicle that he had been driving was impounded. Four days later, he was arrested for possessing carjacked vehicles. The arresting officer directed another officer to go to the impound lot and conduct an inventory of the vehicle that had been impounded during defendant’s earlier traffic stop. The search disclosed two hidden weapons, and the vehicle itself was found to have parts taken from another vehicle. The defendant was convicted of carjacking, armed robbery, two counts of receiving and concealing stolen vehicles, receiving and concealing a stolen weapon, carrying a concealed weapon, and felony-firearm. The Court of Appeals affirmed. Was trial counsel ineffective for failing to investigate two witnesses who say they, not defendant, committed the crimes? Was trial counsel ineffective for failing to move to suppress evidence seized during the search of the defendant’s vehicle?

BOWENS, et al. v ARY, INC., et al. (case no. 140296)
Attorneys for plaintiffs Gregory J. Bowens, Paula M. Bridges, and Gary A. Brown: Glenn D. Oliver, David K. Tillman.
Attorneys for defendants ARY, Inc., d/b/a Aftermath Entertainment, Phillip J. Atwell, Chronic 2001 Touring, Inc., Geronimo Film Productions, Inc., and Andre Young: Herschel P. Fink, Howard E. King.
Trial Court: Wayne County Circuit Court

At issue: This case involves the application of the Michigan eavesdropping statute, MCL 750.5398a et seq., to the defendants’ videotaping of a back-stage conversation that included the defendants, and city of Detroit officials. Was the videotaped conversation a “private conversation” or “private discourse” for purposes of the eavesdropping statutes, MCL 750.539a, et seq? Under what circumstances does a public official or police officer possess a reasonable expectation of privacy under MCL 750.539c in conversations with private citizens in pursuit of official business?

LIGONS v CRITTENTON HOSPITAL, et al. (case no. 139978)
Attorneys for plaintiff Dujuan Ligons, Personal Representative of the Estate of Edris Ligons: Mark R. Granzotto, Matthew L. Turner.
Attorney for defendant Crittenton Hospital, a/k/a Crittenton Hospital Medical Center: James T. Mellon.
Attorney for defendants David Bruce Bauer, M.D., and Rochester Emergency Group, P.C.: Anita L. Comorski.
Trial Court: Oakland County Circuit Court

At issue: The plaintiff filed a medical malpractice complaint, alleging that a delay in treatment by doctors at the defendant hospital caused his mother’s death. The plaintiff mailed a notice of intent to sue and then a supplemental notice; the plaintiff’s medical malpractice complaint was accompanied by two affidavits of merit. The trial court denied the defendant hospital’s motion for summary disposition, which asserted that the notices of intent and the affidavits did not meet the requirements of MCL 600.2912b and MCL 600.2912d. The Court of Appeals held in a published opinion that the plaintiff’s notices were sufficient, but that the affidavits of merit were insufficient due to a lack of a meaningful statement regarding causation. The Court of Appeals ordered that the lawsuit be dismissed with prejudice. May the plaintiff amend his affidavits of merit in light of Bush v Shabahang, 484 Mich 156 (2009), or MCL 600.2301? Does the recent amendment of MCR 2.118 apply to the plaintiff’s affidavits of merit?

Afternoon Session

HAMED v WAYNE COUNTY, et al. (case no. 139505)
Attorneys for plaintiff Tara Katherine Hamed: Elmer L. Roller, Gary P. Supanich.
Attorneys for defendants Wayne County and Wayne County Sheriff’s Department: Mark J. Zausmer, Carson J. Tucker.
Attorney for amicus curiae Attorney General Bill Schuette: B. Eric Restuccia.
Attorney for amicus curiae Michigan Association of Counties: Richard D. McNulty.
Attorney for amicus curiae Michigan Municipal Risk Management Authority: James T. Mellon.
Attorney for amicus curiae Michigan Association for Justice: Marla A. Linderman.
Attorney for amicus curiae Michigan Defense Trial Counsel, Inc.: Marcelyn A. Stepanski.
Attorney for amicus curiae Michigan Municipal League and Michigan Municipal League Liability & Property Pool: Julie McCann O’Connor.
Attorney for amicus curiae Women Lawyers Association of Michigan: Jennifer B. Salvatore.
Trial Court: Wayne County Circuit Court

At issue: The plaintiff was raped by a Wayne County deputy sheriff while in the county jail. She sued Wayne County and the Wayne County Sheriff’s Department on various theories of negligence and vicarious liability; she later amended her complaint to add a claim under the Michigan Civil Rights Act. The trial court dismissed the MCRA claim, but the Court of Appeals reversed. Can the defendants be held liable for quid pro quo sexual harassment under MCL 37.2103(i)? Was the plaintiff’s incarceration a public service within the meaning of MCL 37.2301(b)? Did the trial court err in permitting the plaintiff to amend her complaint to allege MCRA violations?

MIDLAND COGENERATION VENTURE LIMITED PARTNERSHIP v NAFTALY, et al. (case no. 140814)
IRON MOUNTAIN INFORMATION MANAGEMENT, INC., et al. v NAFTALY, et al. (case nos. 140817-24)
Attorneys for plaintiff Midland Cogeneration Venture Limited Partnership: John D. Pirich, Jason Conti, Gary B. Pasek.
Attorneys for plaintiffs Iron Mountain Information Management, Inc., CVS Pharmacy, Inc., and NES Rental Holdings, Inc.: John D. Pirich, Jason Conti/.
Attorneys for defendants Robert Naftaly, Douglas Roberts, Frederick Morgan, and State Tax Commission: B. Eric Restuccia, Michael R. Bell.
Attorneys for amicus curiae American Civil Liberties Union Fund of Michigan: Marshall J. Widick, Michael J. Steinberg, Kary L. Moss.
Attorneys for amicus curiae Michigan Manufacturers Association, Michigan Chamber of Commerce and Michigan Retailers Association: Kristin B. Bellar, Robert S. LaBrant, James P. Hallan.
Attorney for amicus curiae Michigan Electric Cooperative Association: Sherrill D. Wolford.
Trial Courts: Midland, Oakland, Washtenaw, and Wayne County Circuit Courts

At issue: In these cases, the State Tax Commission denied the plaintiffs’ requests to reclassify taxable property for tax year 2008. The plaintiffs individually sought relief in circuit court, which was granted, at least to some extent. The defendants’ appeals to the Court of Appeals were consolidated. In a published opinion, the Court of Appeals ruled that the circuit courts did not have subject matter jurisdiction over the plaintiffs’ claims because MCL 211.34c(6), a provision of the general property tax act, provides that there is no appeal from STC decisions regarding property classification. The Court of Appeals rejected the plaintiffs’ claims that the statutory denial of an appeal violated the constitutional guarantee of appeals from administrative decisions provided for in Const 1963, article 6, § 28. Do the circuit courts have subject matter jurisdiction over appeals from a decision of the STC regarding property classification?

Thursday, January 20
Morning Session

PEOPLE v SLAUGHTER (case no. 141009)
Prosecuting attorneys: Thomas R. Grden, Rae Ann Ruddy/(248) 858-0656
Attorney for defendant Mark Slaughter: Randall P. Upshaw.
Attorney for amicus curiae Prosecuting Attorneys Association of Michigan: Timothy A. Baughman.
Trial Court: Oakland County Circuit Court

At issue: After the defendant’s neighbor called the fire department to report that water was running down the inside of a wall that she shared with the defendant’s apartment and coming out in her basement over her fuse box. In response, a firefighter entered the defendant’s home without a search warrant to see if a dangerous condition existed. While there, the firefighter saw marijuana plants and reported this to the police, who obtained a search warrant and seized the plants. Criminal charges were brought against the defendant. The trial court suppressed the evidence, finding that the defendant’s Fourth Amendment rights were violated by the firefighter’s illegal entry. The Court of Appeals affirmed. Do the actions of the firefighters fall under the “community caretaker” exception to probable cause requirements? Does the “emergency aid” aspect of the community caretaker exception apply in this case? Did the Court of Appeals err when it held that the record did not establish that the firefighters acted reasonably in this case?

PEOPLE v JONES (case no. 139833)
Prosecuting attorney: Thomas M. Chambers.
Attorney for defendant John Vincent Jones: John F. Roya1.
Trial Court: Wayne County Circuit Court

At issue: The defendant absconded on bond pending appeal after he was sentenced but before he was taken into custody by the Michigan Department of Corrections. He was arrested years later on the outstanding warrant by federal authorities, who also held him to answer for federal crimes. Ultimately, the defendant was brought before the state trial court; the defendant claimed he should receive jail credit for the time he was in federal custody. The trial court granted credit for all time the defendant had served between his arrest on the outstanding warrant and the date of the hearing. But the Court of Appeals reversed, holding that the defendant was not entitled to credit for time served while awaiting his federal sentence; the appellate panel stated that he was entitled to credit for time served on the federal sentence itself. Is the defendant entitled to credit for all time served in federal custody after federal authorities arrested him on the outstanding Michigan warrant in this case? In light of the concurrent nature of the federal and state sentences, should the amount of credit the defendant receives in this case depend on (a) whether the defendant has been sentenced for the federal offense; and (b) whether the defendant has received or might receive credit toward his federal sentence from the federal courts?

PEOPLE v BONILLA-MACHADO (case no. 140510)
Prosecuting attorney: Mark G. Sands.
Attorney for defendant Johnny Bonilla-Machado: Matthew L. Posner.
Trial Court: Ionia County Circuit Court

At issue: The defendant threw toilet water on two different corrections officers in two separate incidents. He was convicted of assault on a prison employee with respect to each incident, and sentenced to concurrent terms of 30 to 90 months in prison. Was the defendant deprived of his right to testify? Did the trial court understand that it had the discretion to impose less than the enhanced maximum sentence under the habitual offender statute, MCL 769.10? Did the trial court err in scoring the minimum sentencing guidelines (particularly Offense Variable 13, continuing pattern of criminal behavior)?

PLUNKETT v DEPARTMENT OF TRANSPORTATION (case no. 140193)
Attorney for plaintiff Jerome Plunkett, as Personal Representative of the Estate of Holly Marie Plunkett: Victor S. Valenti.
Attorney for defendant Department of Transportation: John P. Mack, Attorney for amicus curiae Michigan County Road Commission Self-Insurance Pool: William L. Henn.
Trial Court: Ingham County Circuit Court

At issue: The plaintiff’s decedent died when her van hydroplaned on a rutted section of US-127 in Clare County. The defendant’s motion for summary disposition on grounds of governmental immunity was denied. The defendant appealed by right, and the Court of Appeals majority reversed in part, remanding for dismissal with prejudice, with one judge dissenting. Does the highway exception to governmental immunity, MCL 691.1402(1), apply to this case?

Afternoon Session

LAWRENCE M. CLARKE, INC. v RICHCO CONSTRUCTION, INC., et al. (case no. 140683)
Attorney for plaintiff Lawrence M. Clarke, Inc.: Christopher G. Bovid.
Attorney for defendants Richco Construction, Inc., Ronald J. Richards Jr., and Thomas Richards: John D. Staran.
Trial Court: Monroe County Circuit Court

At issue: The plaintiff sued the defendant construction company for breach of contract, and the two individual defendants, its shareholders and corporate officers, for fraud. Although the company’s Wayne County office had been abandoned, corporate records on file with the state listed that address for the company. The circuit court allowed service of the lawsuit by mail and posting at the abandoned address, and by publishing in a newspaper in Monroe County where the construction work occurred. The defendants failed to respond to the lawsuit, and the plaintiff obtained a default judgment. After the individual defendants’ personal property was seized from their homes, they filed a motion to set aside the default judgment, which was denied. The Court of Appeals affirmed. Did the circuit court have personal jurisdiction over any or all of the defendants? If so, did the circuit court abuse its discretion in denying the motion to set aside the default judgment?

PEOPLE v BRANDT (case no. 140744)
Prosecuting attorney: Jerrold E. Schrotenboer.
Attorney for defendant Terry Lee Brandt: Valerie R. Newman.
Trial Court: Jackson County Circuit Court

At issue: The defendant, the chief financial officer of a credit union, was convicted by a jury and sentenced to prison for five to 20 years for embezzlement over $100,000, consecutive to six months in jail for embezzlement from a financial institution. The Court of Appeals affirmed the convictions, but remanded for resentencing, holding that the trial court erred in assessing 10 points for Offense Variable 10, MCL 777.40(3)(c) and (d) (exploitation of a vulnerable victim). May points for abuse of authority status against a vulnerable victim be assessed for Offense Variable 10, where the defendant was a financial officer for a credit union and embezzled funds from that financial institution?

POLLARD v SUBURBAN MOBILITY AUTHORITY FOR REGIONAL TRANSPORTATION (case no. 140322)
Attorney for plaintiff William Pollard: Joseph H. Howitt.
Attorney for defendant Suburban Mobility Authority for Regional Transportation, d/b/a SMART: Hal O. Carroll.
Attorney for amicus curiae John A. Braden: John A. Braden.
Attorney for amicus curiae Wayne County: Robert S. Gazall.
Attorney for amicus curiae Michigan Department of Transportation: Patrick F. Isom.
Attorney for amicus curiae Michigan Association of Counties: Richard D. McNulty.
Attorney for amicus curiae Board of Trustees of Michigan State University: Michael J. Kiley.
Attorney for amicus curiae Michigan County Road Commission Self-Insurance Pool: William L. Henn.
Attorney for amicus curiae Michigan Association for Justice: Barry J. Gates.
Trial Court: Wayne County Circuit Court

At issue: When a Detroit bus lurched forward shortly after he boarded, the plaintiff fell and broke his hip. The fall occurred on August 5, 2007. The first notice that the defendant received of the injury was service of the complaint on November 14, 2007. The defendant filed a motion for partial summary disposition, arguing that the 60-day notice provisions of MCL 124.419 barred the negligence claim. The trial court denied the motion. In an unpublished opinion per curiam, the Court of Appeals reversed and remanded for further proceedings consistent with its opinion. Is the plaintiff’s claim barred by the 60-day notice provision? Should this Court reconsider Rowland v Washtenaw County Road Commission, 477 Mich 197 (2007)?

Friday, January 21
Morning Session Only

IN RE INVESTIGATIVE SUBPOENAS (case nos. 140297, 140299)
Attorney for petitioner Grand Traverse County Prosecutor: Alan R. Schneider.
Attorneys for respondent Meijer, Inc.: John D. Pirich, Andrea L. Hansen.
Attorneys for respondents Dickinson Wright Employees: Eugene Driker, Sharon M. Woods.
Attorney for amicus curiae League of Women Voters of Michigan and Michigan Campaign Finance Network: John P. Mayer.
Attorney for amicus curiae Concerned Citizens of Acme Township: Michael H. Dettmer.
Attorney for amicus curiae Secretary of State Terri Lynn Land: Heather S. Meingast.
Attorneys for amicus curiae Michigan Education Association, Michigan Teamsters, Michigan Chamber of Commerce, Michael D. Bishop, Senate Majority Leader, Michael Prusi, Senate Democratic Leader, Michigan Retailers Association, and Michigan Association of Realtors: Arthur Przybylowicz, Kevin O’Neill, Robert S. LaBrant, Alfred H. Hall, Catherine L. McClure, James P. Hallan, Gregory McClelland.
Trial Court: Grand Traverse County Circuit Court

At issue: Does a county prosecutor have the authority to investigate and prosecute violations of the Michigan Campaign Finance Act, MCL 169.201 et seq? The trial court agreed with the respondents that the MCFA specifically vests the Secretary of State and Attorney General with the exclusive jurisdiction to investigate campaign finance law violations, and dismissed, for lack of jurisdiction, the petitioning county prosecutor’s motion to compel the respondents’ compliance with investigative subpoenas issued pursuant to MCL 767A.2(1). The Court of Appeals reversed the trial court in a published opinion.

FERDON v STERLING PERFORMANCE, INC., et al. (case no. 140723)
Attorney for plaintiff Mary A. Ferdon: Ronald D. Glotta.
Attorney for defendants Sterling Performance, Inc. and West American Insurance Company: Gerald M. Marcinkoski.
Tribunal: Workers’ Compensation Appellate Commission

At issue: The Workers’ Compensation Appellate Commission dismissed the plaintiff’s appeal because she failed to file all transcripts of the proceedings at the Board of Magistrates and failed to provide sufficient cause to excuse this lapse. Did the Commission abuse its discretion in dismissing the plaintiff’s appeal for her failure to file a seven-page transcript that contained no substantive information? If the Commission abused its discretion, what less harsh action would have been appropriate?

PEOPLE v BREIDENBACH (case no. 140153)
Prosecuting attorney: Donald A. Kuebler.
Attorney for defendant Anthony James Breidenbach: Jonathan B. D. Simon.
Trial Court: Genesee County Circuit Court

At issue: The defendant exposed himself to a woman at a bookstore; he was charged with “indecent exposure as a sexually delinquent person.” At trial, the prosecutor presented testimony related to two prior similar convictions, and the defendant’s parole agent testified about his criminal history of related offenses. The jury convicted him as charged, and the judge sentenced him to one day to life in prison. The defendant appealed. The Court of Appeals granted the defendant’s motion to remand, retaining jurisdiction. On remand, the trial judge granted the defendant’s motion for a new trial on the basis of People v Helzer, 404 Mich 410 (1978), which holds that the criminal delinquency aspect of the charge must be tried separately, before a different jury. The prosecutor argued in the Court of Appeals that Helzer was incorrectly decided and, in the alternative, that the defendant had waived the Helzer issue. The Court of Appeals denied relief. Should People v Helzer, 404 Mich 410 (1978), be reconsidered? Did the defendant waive or forfeit his right to a second jury’s determination of his status as a sexual delinquent? Was any error harmless?

DRAKE, et al. v CITY OF BENTON HARBOR, et al. (case no. 140685)
Attorney for plaintiffs Carol Drake and Clellen Bury: Scott W. Howard.
Attorney for defendant City of Benton Harbor: Pamela Chapman Enslen.
Attorney for defendant Harbor Shores Community Redevelopment Corporation: John G. Cameron Jr.
Attorney for amicus curiae Friends of Michigan Parks: Barry D. Malone.
Attorney for amicus curiae Boys & Girls Clubs of Benton Harbor, Michigan and the First Tee of Benton Harbor: Mark A. Miller.
Attorney for amicus curiae Southwestern Michigan Tourist Council: Andrew W. Barnes.
Attorney for amicus curiae Ronald J. Taylor: Mark A. Miller.
Attorney for amicus curiae Saugatuck Dunes Coastal Alliance, Defense of Place, Preserve The Dunes, West Michigan Environmental Action Council, and Great Lakes Environmental Law Center: Nicholas J. Schroeck.
Attorney for amicus curiae Michigan Municipal League: Eric D. Williams.
Trial Court: Berrien County Circuit Court

At issue: In 1917, 90 acres of land were conveyed to the city of Benton Harbor. The deed provided that “said lands and premises shall forever be used by [the city] for bathing beach, park purposes, or other public purpose; and at all times shall be open for the use and benefit of the public, subject only to such rules and regulations as said [city] may make and adopt.” The city developed a park on the land. In 2003, the city announced that part of the park would be used for residential development. The plaintiffs sued, alleging that the proposed use violated the deed restrictions. That lawsuit was settled pursuant to a consent judgment that allowed the residential development, but provided that the remainder of the park would not be used for any purpose other than a bathing beach, park purposes, or another related public purpose. In 2005, the city announced its plan to lease twenty-two acres of the park to a corporation that would develop three holes of an eighteen-hole championship Jack Nicklaus golf course. The plaintiffs sued, challenging the city’s plan. The circuit court ruled in the city’s favor, and the Court of Appeals affirmed. Does the city’s proposal violate the deed or the consent judgment?

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