MICHIGAN SUPREME COURT CALENDAR

A man who was convicted of sexually abusing his wife's young sister asserts that his constitutional rights were violated when the girl was allowed to testify against him from behind a screen, in a case that the Michigan Supreme Court will hear argued on appeal this week.

In People v Rose, the trial court allowed the child to testify behind a screen after the girl's therapist testified that the child was fearful of seeing the defendant, and that seeing him could cause the girl to freeze up during her testimony or suffer a relapse in her therapy. While the screen kept the girl from seeing the defendant, he and others in the courtroom could see her. The defendant, who was convicted of four counts of first-degree criminal sexual conduct, argues that the screen violated his constitutional right to confront those who were testifying against him; moreover, the screen impaired the presumption of innocence by making it appear to the jury that he was a danger to the child, the defendant contends. But the Court of Appeals affirmed his convictions, stating in part that trial judges have latitude to protect young witnesses.

The Supreme Court will also hear three criminal cases involving non-payment of child support: People v Likine, People v Parks, and People v Harris. In all three cases, the defendants failed to pay child support as ordered by family court judges. Each defendant was convicted of non-payment of child support, a felony, in separate criminal proceedings. Although the defendants asserted that they lacked the ability to pay, the Court of Appeals allowed their convictions to stand; in People v Adams, 262 Mich App 89 (2004), the Michigan Court of Appeals held that evidence of inability to pay is not a valid defense to the strict liability crime of failing to pay child support. The Court of Appeals in Likine also said that allowing the defendant to claim inability to pay in the criminal proceeding would amount to an improper collateral attack on the family court's ruling.

Among the other cases the court will hear is In re Honorable James M. Justin, in which the Judicial Tenure Commission recommends that the Michigan Supreme Court order the removal from office of a Jackson district court judge. The judge, while acknowledging some misconduct, contends that the recommended penalty is overly severe and overlooks his years of service.

The remaining nine cases the court will hear include criminal, governmental immunity, insurance, medical malpractice, negligence, parental rights, and worker's compensation issues.

In keeping with a long-standing custom, the court's seven justices will hear the first case of October, People v Evans, in the Old Courtroom in the Capitol building. The court will then adjourn and resume hearing oral arguments in its courtroom on the sixth floor of the Michigan Hall of Justice. Court will be held on Oct. 4, 5, and 6, beginning at 9:30 a.m. each day. The court's 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.

Tuesday, October 4

Morning Session (9:30 a.m., Old Supreme Court courtroom, Capitol Building)

PEOPLE v EVANS (case no. 141381)

Prosecuting attorney: Timothy A. Baughman.

Attorney for defendant Lamar Evans: Jonathan B.D. Simon.

Trial Court: Wayne County Circuit Court

Court of Appeals case no. 290833

At issue: The defendant in this case argues that double jeopardy prevents him from being retried for arson. He was charged under a statute that applies to arson of "any building or other real property" other than a dwelling; the building he was accused of burning was a vacant house. After the prosecution presented its evidence, the trial judge dismissed the case on defense counsel's motion. The trial judge said that the prosecutor had failed to prove that the building was not a dwelling; therefore, defendant could not be convicted under the "any building" statute. On appeal, the parties agreed that the trial court had erred, but the defendant argued that any attempt to retry him on the arson charge would violate the double jeopardy clause, citing People v Nix, 453 Mich 619 (1996). In a published opinion, the Court of Appeals reversed and remanded for further proceedings, including a new trial. Is retrial barred under the double jeopardy clause where the trial court made an error of law and did not determine any actual element of the charged offense?

Afternoon Session (12:30 p.m., Hall of Justice)

PEOPLE v MORENO (case no. 141837)

Prosecuting attorney: Gregory J. Babbitt.

Attorney for defendant Angel Moreno, Jr.: Craig W. Haehnel.

Attorney for amicus curiae Prosecuting Attorneys Association of Michigan: Timothy A. Baughman.

Attorney for amicus curiae Michigan Association for Justice: Racine M. Miller.

Trial Court: Ottawa County Circuit Court

Court of Appeals case no. 294840

At issue: Police officers looking for a subject of outstanding warrants smelled marijuana while speaking to the defendant's girlfriend at the door to his house. The officers decided to enter and secure the home. When told this, the defendant ordered the police off his porch and attempted to slam the door. An officer sought to prevent the door from closing and a struggle ensued. Police removed the defendant from the house and arrested him. He was charged with two counts of resisting and obstructing a police officer under MCL 750.81d. The circuit court ruled that the police entry was unlawful, but refused to quash the charges against the defendant, and the Court of Appeals affirmed. Is it a violation of MCL 750.81d for a person to resist a police officer who unlawfully and forcibly enters the person's home? If so, is MCL 750.81d unconstitutional? Can a defendant prosecuted under the statute claim self-defense?

PROGRESSIVE MICHIGAN INSURANCE COMPANY v SMITH, et al. (case no. 141255)

Attorney for plaintiff Progressive Michigan Insurance Company: Daniel S. Saylor.

Attorney for defendants Scott Mihelsic and Andrea Mihelsic: Devin R. Day.

Trial Court: Kent County Circuit Court

Court of Appeals case no. 287505

At issue: The plaintiff insurance company issued a no-fault insurance policy with a named driver exclusion. The named excluded driver, William Smith caused an automobile accident that injured the defendants, who sued Smith. The insurance company sued Smith, seeking a court ruling that it had no duty to indemnify Smith. The trial court granted the insurance company's motion for summary disposition, but the Court of Appeals reversed in a published opinion, ruling that the insurance company failed to include a necessary notice in its policy. Did the Legislature intend to include the final sentence of MCL 500.3009(2) in the required notice provisions of the insurance documents described in that provision? If not, what effect, if any, does this have on this case?

FINDLEY v DAIMLERCHRYSLER CORPORATION (case no. 141858)

Attorney for plaintiff Torme C. Findley: Daryl C. Royal.

Attorney for defendant DaimlerChrysler Corporation: Gerald M. Marcinkoski.

Lower Tribunal: Workers' Compensation Appellate Commission

Court of Appeals case no. 291402

At issue: A worker's compensation magistrate denied the plaintiff's request for benefits, finding, among other things, that the plaintiff exaggerated her impairments from a work-related injury. The plaintiff appealed to the Workers' Compensation Appellate Commission, claiming that the magistrate's decision was not based on competent, material, and substantial evidence; she also asked the WCAC to remand the case to the magistrate to clarify a factual issue. But the WCAC majority affirmed the magistrate's decision, with one commissioner concurring in the result only. The dissenting commissioner would have remanded the case to the magistrate for an explanation of the factual issue. The plaintiff appealed to the Court of Appeals, claiming that the WCAC had failed to provide a true majority opinion. She also claimed that the WCAC abused its discretion in denying her motion to remand. The Court of Appeals granted leave and, in a published opinion, reversed and remanded the case to the WCAC, directing the commission to provide a majority opinion. Is the WCAC required to render a majority opinion to provide a final decision that is reviewable by the appellate courts?

Wednesday, October 5

Morning Session

PEOPLE v ROSE (case no. 141659)

Prosecuting attorney: Judy Hughes Astle

Attorney for defendant Ronald Carl Rose: Scott A. Grabel.

Attorney for amicus curiae Prosecuting Attorneys Association of Michigan: William M. Worden.

Attorney for amicus curiae University of Michigan Family Assessment Clinic, Dr. Jim Henry, PhD, and Michigan Court Appointed Special Advocates: Frank E. Vandervort.

Attorney for amicus curiae Attorney General Bill Schuette: Joel D. McGormley.

Trial Court: Allegan County Circuit Court

Court of Appeals case no. 290936

At issue: The defendant was charged with sexually abusing a child and with showing pornography to her and her brother. At trial, the judge ruled that the prosecutor could place a screen between the eight-year-old complainant and the defendant so that the child would not have to see him when she testified. The defendant complained that this violated his rights under the Confrontation Clause, that the use of a screen denied him the presumption of innocence because it appeared that he was a danger to the witness, and that the judge did not follow the necessary steps before permitting the prosecutor to use a screen. A jury convicted the defendant of first-degree criminal sexual conduct and distributing pornography to minors; the Court of Appeals affirmed the defendant's convictions. Does the use of a screen to shield a child complainant from the defendant violate the Confrontation Clause or prejudice the defendant by impinging on the presumption of innocence?

MILLER v CITIZENS INSURANCE COMPANY, et al. (case no. 141747)

Attorney for plaintiff Gail Miller, Guardian and Conservator for Ryan Scott Miller, a Mentally and Physically Incapacitated Person: Cynthia M. Filipovich.

Attorney for appellant Detroit Medical Center: Charles N. Raimi.

Attorney for amicus curiae Michigan Health & Hospital Association: Richard E. Hillary II.

Attorney for amicus curiae Michigan Association of Ambulance Services: L. Page Graves.

Trial Court: Macomb County Circuit Court

Court of Appeals case no. 290522

At issue: The plaintiff hired an attorney after her no-fault insurer denied claims arising from an accident that left her son injured. The attorney contacted the defendant hospital where plaintiff's son was being treated, but he sued the insurer before the hospital billed for its services. The lawsuit settled within a month, with the insurer agreeing to pay benefits and the plaintiff agreeing to forego attorney fees or penalty interest. Days before the case settled, the attorney notified the hospital in writing that he was pursuing a no-fault claim against the insurer in court. The hospital did not reply before the case settled. The circuit court determined that one-third of the payment the insurer owed to the hospital must go as a fee to the plaintiff's attorney. The Court of Appeals affirmed. May a medical care provider that is not a party to a fee agreement with plaintiff's counsel be liable for all or a portion of counsel's fee? What is the basis for such liability, if any? How shall the extent of any liability be determined?

IN RE HONORABLE JAMES M. JUSTIN (case no. 142076)

Attorney for petitioner Judicial Tenure Commission: Paul J. Fischer.

Attorney for respondent 12th District Court Judge James M. Justin: Dennis C. Kolenda.

Lower tribunal: Judicial Tenure Commission

At issue: Did the Judicial Tenure Commission properly find that Judge James M. Justin, 12th District Court, committed judicial misconduct? Should the judge be removed from office? Is the Judicial Tenure Commission entitled to costs under Michigan Court Rule 9.205(B)?

Afternoon Session

LAMEAU v CITY OF ROYAL OAK, et al. (case nos. 141559-60)

Attorney for plaintiff Thomas LaMeau, Personal Representative of the Estate of John M. Crnkovich, Deceased: Mark R. Granzotto.

Attorney for defendants City of Royal Oak, Elden Danielson, and Bryan Warju: Marcia L. Howe.

Attorney for amicus curiae Michigan Defense Trial Counsel: Michael J. Watza

Attorney for amicus curiae Michigan Municipal League, Michigan Municipal League Liability & Property Pool, Public Corporation Law Section of the State Bar of Michigan (PCLS), and Michigan Townships Association (MTA): Mary Massaron Ross.

Trial Court: Oakland County Circuit Court

Court of Appeals case no. 290059

At issue: A man driving a motorized scooter on a sidewalk was killed when, at night and while intoxicated, he drove through a construction area and hit a guy wire stretched over an unfinished portion of the sidewalk. The city had barricaded the area, but others had removed the barricades. The man's estate sued the city and others. The city and its employees moved to dismiss the case, citing governmental immunity, but the trial court denied the motion and the Court of Appeals affirmed. Was the presence of the guy wire a breach of the city's duty to keep the sidewalk in "reasonable repair" under MCL 691.1402? If so, does the exclusion for "utility poles" at MCL 691.1401(e) remove the wire from the highway exception? Is it significant that the sidewalk was not open for public travel and was meant to be barricaded, and that the defendants knew that the barricades were regularly being removed? Were the individual defendants grossly negligent? Can their alleged conduct be considered "the" proximate cause of the decedent's injury, in light of the decedent's own conduct and his intoxication at the time?

ESTATE OF JILEK v STOCKSON, et al. (case no. 141727)

Attorney for plaintiff Estate of Daniel D. Jilek, by Joy A. Jilek, Personal Representative: Mark R. Granzotto.

Attorney for defendants Carlin C. Stockson, M.D. and EPMG of Michigan: Noreen L. Slank.

Attorney for amicus curiae Michigan Association for Justice: Richard D. Toth.

Attorney for amicus curiae Michigan State Medical Society: Joanne Geha Swanson.

Attorney for amicus curiae Michigan Academy of Family Physicians: Marcy R. Matson.

Attorney for amicus curiae Michigan Defense Trial Counsel: Beth A. Wittmann.

Attorneys for amicus curiae American Academy of Urgent Care Medicine: Alexandra Ritucci-Chinni, Deborah A. Hebert.

Trial Court: Washtenaw County Circuit Court

Court of Appeals case no. 289488

At issue: This medical malpractice case concerns treatment rendered by a board-certified family practice physician working in an urgent-care clinic. At trial, the parties could not agree as to whether the relevant standard of care was that of an emergency room specialist or a family practice physician. Experts from both specialties testified, and the trial court eventually ruled that the relevant standard of care was that of a board-certified family practice physician working in an urgent care center. The jury returned a verdict of no cause of action. The plaintiff appealed, and the Court of Appeals reversed, ruling that the trial court erred in determining the applicable standard of care. Did the Court of Appeals correctly hold that the relevant standard of care is that of an emergency room physician? Did the Court of Appeals correctly hold that evidence of the defendants' internal policies and procedures should have been admitted at trial?

Thursday, October 6

Morning Session

PEOPLE v LIKINE (case no. 141154)

Prosecuting attorney: Joel D. McGormley.

Attorney for defendant Selesa Arrosieur Likine: David A. Moran.

Attorney for amicus curiae Prosecuting Attorneys Association of Michigan: Timothy A. Baughman.

Attorney for amicus curiae Michigan Criminal Law Professors: Eve Brensike Primus.

Attorney for amicus curiae Legal Services Association of Michigan: Vivek S. Sankaran.

Trial Court: Oakland County Circuit Court

Court of Appeals case no. 290218

At issue: After the defendant failed to pay court-ordered child support, she was charged with felony non-payment of child support. In the criminal trial, the trial court ruled that the defendant, who has been diagnosed with schizoaffective disorder, could not introduce any evidence about her income or her ability to pay. A jury found the defendant guilty as charged; she was sentenced to one year of probation. The Court of Appeals affirmed in a published decision, rejecting the defendant's arguments that it is unconstitutional to interpret MCL 750.165 as precluding evidence of the defendant's ability to pay. The Court of Appeals said that the defendant could have asked the family court to decrease the support amount, but did not do so. People v Adams, 262 Mich App 89 (2004), holds that inability to pay is not a defense to the crime of felony non-support, MCL 750.165. Is the Adams rule unconstitutional?

PEOPLE v PARKS (case no. 141181)

Prosecuting attorney: Joel D. McGormley.

Attorney for defendant Michael Joseph Parks: Douglas W. Baker.

Attorney for amicus curiae Prosecuting Attorneys Association of Michigan: Timothy A. Baughman.

Trial Court: Ingham County Circuit Court

Court of Appeals case no. 291011

At issue: The defendant was convicted of violating MCL 750.165 for failing to pay his child support obligations. He asserted that he was unable to pay and that the child support order was based on an erroneous imputation of income. But the trial court found the defendant guilty and sentenced him to a year in jail; the judge also ordered the defendant to pay $234,444.83, the amount of his child support arrearage. The Court of Appeals affirmed. In People v Adams, 262 Mich App 89 (2004), the Michigan Court of Appeals held that inability to pay is not a defense to the crime of felony non-support under MCL 750.165. Is the Adams decision unconstitutional?

PEOPLE v HARRIS (case no. 141513)

Prosecuting attorney: Charles F. Justian.

Attorney for defendant Scott Bennett Harris: Jacqueline J. McCann.

Attorney for amicus curiae Prosecuting Attorneys Association of Michigan: Timothy A. Baughman.

Trial Court: Muskegon County Circuit Court

Court of Appeals case no. 297182

At issue: As part of the defendant's divorce proceeding, the family court ordered him to pay child support for two of his children. He paid sporadically, and was charged with felony non-support under MCL 750.165. The defendant pled guilty in exchange for a plea agreement in which he promised to pay $3,000 by a certain date, at which point sentencing would be adjourned to May 2009; the defendant would not be incarcerated if he paid an additional $5,000 by May 2009. The defendant was not able to pay the initial $3,000, and he was sentenced to 15 months to 15 years in prison. The court denied his motions to withdraw his plea or for resentencing and for rehearing. Is the rule of People v Adams, 262 Mich App 89 (2004), which holds that inability to pay is not a defense to the crime of felony non-support under MCL 750.165, unconstitutional? Did the trial court abuse its discretion when it denied the defendant's post-sentencing motion to withdraw his plea? Did the trial court err when it adopted the child support arrearage amount that had been determined by family court as the restitution to be imposed in this criminal case? Did the defendant waive that issue?

Afternoon Session

IN RE MAYS, MINORS (case nos. 142566, 142568)

Attorney for petitioner Department of Human Services: Jennifer L. Gordon.

Attorney for respondent Ursula Mays: Elizabeth Warner.

Attorney for respondent Wali Phillips: Vivek S. Sankaran.

Attorney for minor children lawyer guardian ad litem: William Ladd.

Attorney for amicus curiae Legal Services Association of Michigan and the Michigan State Planning Body for the Delivery of Legal Services to the Poor: Jill M. Przybylski.

Attorney for amicus curiae Prosecuting Attorneys Association of Michigan: Terrence E. Dean.

Attorney for amicus curiae Center for Individual Rights: Kerry L. Morgan

Attorney for amicus curiae National Association of Counsel for Children: Brock A. Swartzle.

Attorney for amicus curiae American Civil Liberties Union Fund of Michigan: Amy L. Sankaran.

Trial Court: Wayne County Circuit Court Family Division

Court of Appeals case nos. 297446, 297447

At issue: In these parental rights termination cases, the mother, who had custody of her nine-year-old and seven-year-old daughters, left the children alone at home for several hours. The mother entered a plea to the allegations in the neglect petition. Both parents were ordered to comply with a treatment plan; when they failed to substantially comply, their parental rights were terminated. The Court of Appeals affirmed in an unpublished per curiam opinion. Did the trial court err in ordering the father to comply with a treatment plan in the absence of an adjudication of his lack of fitness? Should the "one parent" doctrine, adopted in In re CR, 250 Mich App 185 (2001), be upheld? Did the father's challenge to the trial court's assumption of jurisdiction constitute an improper collateral attack, where the father had an opportunity to bring a direct appeal from the trial court's initial dispositional order, but did not do so? Did the trial court commit plain error in failing to hold a permanency planning hearing before directing the petitioner to file a supplemental petition seeking termination? Did the trial court clearly err in finding that clear and convincing evidence was presented to support termination? Did the trial court clearly err in finding that termination was in the children's best interests, without determining whether the children were old enough to give their views regarding termination, and without considering whether termination was appropriate given that the children were being cared for by a relative?

Published: Mon, Oct 3, 2011

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