Michigan Supreme Court to hold oral arguments March 3-4

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The Michigan Supreme Court announced that oral arguments in eleven cases will be heard on Wednesday and Thursday, March 3-4. The court will convene at 9:30 a.m. via Zoom and attorneys for the parties have all agreed to argue their cases via Zoom. The courtroom will be closed to the public. The schedule of arguments is posted on the Supreme Court’s oral arguments homepage.

Oral arguments will be livestreamed on the court’s YouTube page.

The brief accounts below 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, March 3, 2021
Morning Session – 9:30 a.m.
—No. 3 160046 (20-minute arguments per side)
PEOPLE OF THE STATE OF MICHIGAN, Alexis Gipson-Goodnough
Plaintiff-Appellee,
v (Appeal from Ct of Appeals)
(Monroe – Weipert, M.)
LONNIE JAMES ARNOLD, Marilena David-Martin
Defendant-Appellant.
The defendant was convicted of aggravated indecent exposure and indecent exposure by a sexually delinquent person and was sentenced as a fourth-offense habitual offender to 25 to 70 years in prison. The Court of Appeals held that the defendant must be sentenced to 1 day to life in accordance with MCL 750.335a(2)(c). The Supreme Court reversed, holding that a 1 day to life prison sentence was never required by the statutory scheme, and remanded the case to the Court of Appeals for reconsideration. On remand, the Court of Appeals, in a published opinion, vacated the defendant’s sentence and remanded the case to the trial court for further sentencing proceedings. The Supreme Court has granted leave to appeal to address: (1) whether indecent exposure by a sexually delinquent person is a distinct felony “enumerated” in the Michigan Penal Code and subject to the sentencing guidelines, or whether the offense is subject to the sentencing guidelines regardless because it is set forth in MCL 777.16q as a listed felony; (2) whether, when the legislative sentencing guidelines provide for a penalty that is inconsistent with the penalty provided in the Penal Code for an offense, the sentencing guidelines are an amendment or repeal of inconsistent provisions of the Penal Code by implication such that the guidelines control, and if so, whether this comports with Const 1963, art 4, § 25; and (3) whether the rule of lenity is implicated, see People v Hall, 499 Mich 446, 458 n 38 (2016).

—No. 2 159384 (20-minute arguments per side)
PEOPLE OF THE STATE OF MICHIGAN, Charles Justian
Plaintiff-Appellant,
v (Appeal from Ct of Appeals)
(Muskegon – Hicks, T.)
DANIEL RAY BEAN, Mary Chartier-Mittendorf
Defendant-Appellee.
The Muskegon County Prosecutor alleges that the defendant sexually assaulted defendant’s 15-year-old step-niece. The prosecutor initially charged the defendant with third-degree criminal sexual conduct (CSC-III) for sexual penetration of a victim between the ages of 13 and 16, but later elevated the charge to first-degree criminal sexual conduct (CSC-I) based on two theories: (1) the commission of an “other felony”—second-degree child abuse; and (2) affinity. The defendant moved to quash the information as to both theories. The trial court granted the defendant’s motion as to affinity, but denied it as to the “other felony.” The Court of Appeals, in an unpublished opinion, reversed the denial of the defendant’s motion to quash on the “other felony” theory and affirmed the grant of his motion to quash on the affinity theory, meaning that the prosecutor will only be able to proceed with a charge of CSC-III. The Supreme Court has granted leave to appeal to address whether second-degree child abuse, MCL 750.136b(3)(b), is an adequate predicate “other felony” to sustain a charge of CSC-I, MCL 750.520b(1)(c), when the alleged act of child abuse is a sexual penetration that is the same sexual penetration that forms the basis of the CSC-I charge.
—MOAA 159676 (15-minute arguments per side)
PEOPLE OF THE STATE OF MICHIGAN, Emil Samaan
Plaintiff-Appellee,
v (Appeal from Ct of Appeals)
(Macomb – Faunce, J.)
CURTIS LEE HAMPTON, Jason Eggert
Defendant-Appellant.

The defendant fatally stabbed his ex-girlfriend and then fatally stabbed his 13-month-old daughter. A jury convicted the defendant of two counts of second-degree murder relating to his ex-girlfriend and convicted him of first-degree child abuse and felony-murder (predicated upon first-degree child abuse) relating to his daughter. The Court of Appeals vacated one of the defendant’s second-degree murder convictions, but otherwise affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether the Legislature intended to elevate to felony-murder those instances of first-degree child abuse in which the only act of abuse is the child’s murder. See MCL 750.316(1).

—No. 1 159088 (20-minute arguments per side)
IN RE BYRON J. KONSCHUH, JUDGE.
Arguing for the Judicial Tenure Commission, William Murphy
Arguing for respondent Konschuh, Trent Collier
Following a hearing before a Master, the Judicial Tenure Commission (JTC) recommends that respondent 40th Circuit Judge Byron J. Konschuh be removed from office, conditionally suspended for six years, and assessed $74,631.86 in costs related to allegations that he misused public funds while he was a prosecutor. The respondent has filed a petition to reject or modify the JTC’s recommendation.
Wednesday, March 3, 2021
Afternoon Session – t/b/d

—No. 5 160843-4 (20-minute arguments per side)
160843
DEPARTMENT OF LICENSING AND REGULATORY Jason Hawkins
AFFAIRS/UNEMPLOYMENT INSURANCE AGENCY,
Appellee,
v (Appeal from Ct of Appeals)
(Macomb – Druzinski, D.)
FRANK LUCENTE, Rachael Kohl
Claimant-Appellant,
and
DART PROPERTIES II, LLC,
Employer-Appellee.

————

160844
DEPARTMENT OF LICENSING AND REGULATORY Jason Hawkins
AFFAIRS/UNEMPLOYMENT INSURANCE AGENCY,
Appellee,
v (Appeal from Ct of Appeals)
(Wayne – Murphy, J.)
MICHAEL HERZOG, Rachael Kohl
Claimant-Appellant,
and
CUSTOM FORM, INC.,
Employer-Appellee.
Claimant Frank Lucente received a “redetermination” in November 2010, finding that he obtained unemployment benefits fraudulently from February to June 2010, but he did not realize that he had been assessed penalties until late 2015, and his appeal at that point was denied as untimely. An administrative law judge (ALJ) found good cause for Lucente’s delay, but rejected his appeal on the merits. The Michigan Compensation Appellate Commission (MCAC) reversed, finding that the Unemployment Insurance Agency’s 2010 “redetermination” was untimely under MCL 421.32a. The circuit court affirmed. Claimant Michael Herzog received a “redetermination” in October 2017, that he received unemployment benefits fraudulently from October 2016 to March 2017. The ALJ found that the “redetermination” was void because Herzog never received a determination. The MCAC and circuit court affirmed. The Court of Appeals, in a published opinion, reversed the circuit court decisions. The Court of Appeals held that because the Unemployment Insurance Agency did not proceed under MCL 421.32a, but rather recouped wrongfully-paid benefits under MCL 421.62, the agency was not subject to the time restrictions under MCL 421.32a. The Court of Appeals further held that the captioning of the determination as a “redetermination” was not fatal to the agency’s ability to recoup fraudulently-obtained benefits under MCL 421.62. The Supreme Court has granted leave to appeal to address whether the Court of Appeals erred in its analysis of §§ 32, 32a, and 62 of the Michigan Employment Security Act of 1936 (MESA), MCL 421.1 et seq., when it held that: (1) the Unemployment Insurance Agency is not required to comply with the time requirements set forth in § 32a when seeking to recoup payment of fraudulently obtained benefits under § 62 of the Act; and (2) the label that the agency used on its decisions was not determinative of its ability to seek to recoup improperly obtained benefits.

—MOAA 160578 (15-minute arguments per side)
WESLEY ZOO YANG and VIENGKHAM MOUALOR, Lee Roy Temrowski
Plaintiffs-Appellees,
v (Appeal from Ct of Appeals)
(Wayne – Hubbard, S.)
EVEREST NATIONAL INSURANCE COMPANY, Karen Beach
Defendant-Appellant,
and
MOTORIST MUTUAL INSURANCE COMPANY, Christian Huffman
Defendant-Appellee.
Everest National Insurance Company sent a notice to an insured stating that his insurance policy would be canceled if he did not make the payment on the day it was due. The insured did not make the payment on time, and he and his wife were subsequently injured when they were hit by a car. The insured made the premium payment two days after the accident. Everest denied coverage for no-fault benefits on the basis that the insured did not have a valid policy at the time of the accident. The insured and his wife sued Everest, and the trial court denied Everest’s motion for summary disposition. The Court of Appeals affirmed in a published opinion, holding that a notice of cancellation sent by an insurer before the time for making a premium payment does not satisfy MCL 500.3020(1)(b), which provides that a no-fault policy “may be canceled at any time by the insurer by mailing to the insured . . . a not less than 10 days’ written notice of cancellation . . . .” The Supreme Court has ordered oral argument on the application to address: (1) whether an insurer may cancel an insurance policy in compliance with MCL 500.3020(1)(b) by mailing a written notice of cancellation to the insured before the grounds for cancellation have occurred; and (2) whether Everest’s written notice of cancellation complied with the provision in the insurance policy that requires “at least 10 days notice by first class mail, if cancellation is for non-payment of premium.”

Thursday, 4, 2021
Morning Session – 9:30 a.m.
—No. 4 160658, 160660 (30-minute arguments per side)
160658
TAXPAYERS FOR MICHIGAN CONSTITUTIONAL GOVERNMENT, STEVE DUCHANE, RANDALL BLUM, and SARA KANDEL, John Philo
Plaintiffs-Appellants,
v (Appeal from Ct of Appeals)
STATE OF MICHIGAN, DEPARTMENT OF TECHNOLOGY, MANAGEMENT AND BUDGET and OFFICE OF AUDITOR GENERAL, Matthew Hodges
Defendants-Appellees.

————

160660
TAXPAYERS FOR MICHIGAN CONSTITUTIONAL GOVERNMENT, STEVE DUCHANE, RANDALL BLUM, and SARA KANDEL, John Philo
Plaintiffs-Appellees,
v (Appeal from Ct of Appeals)
STATE OF MICHIGAN, DEPARTMENT OF TECHNOLOGY, MANAGEMENT AND BUDGET and OFFICE OF AUDITOR GENERAL, Matthew Hodges
Defendants-Appellants.
The plaintiffs brought an original action in the Court of Appeals to enforce §§ 25 and 30 of the Headlee Amendment, which prohibit the state from shifting the tax burden to local governments and from reducing the total of state spending paid to all units of local government, taken as a group, below that proportion in effect in fiscal year 1978-1979. See Const 1963, art 9, §§ 25 and 30. In a 2-1 published opinion (on reconsideration), the Court of Appeals (1) granted the State of Michigan summary disposition on two of the plaintiffs’ counts; (2) granted the plaintiffs summary disposition on a third count; and (3) granted mandamus relief. The Supreme Court has granted leave to appeal to address: (1) whether the defendants violated Const 1963, art 9, §§ 25 and 30, by classifying monies paid to school districts pursuant to Proposal A, Const 1963, art 9, § 11, as state spending in the form of aid paid to units of local government; (2) whether the defendants violated Const 1963, art 9, §§ 25 and 30, by classifying monies paid to public school academies (a.k.a. charter schools) as state spending in the form of aid paid to units of local government; (3) whether the Court of Appeals erred when it held that state funds directed to local governments to satisfy state obligations under Const 1963, art 9, § 29 may not be counted toward the proportion of state funds required by Const 1963, art 9, § 30; and (4) whether the Court of Appeals erred to the extent that it held that the Auditor General or the Office of the Auditor General is subject to mandamus relief.

—MOAA 160638 (15-minute arguments per side)

DEPARTMENT OF TALENT & ECONOMIC DEVELOPMENT/UNEMPLOYMENT INSURANCE AGENCY, Zachary Risk
Plaintiff-Appellee,
v (Appeal from Ct of Appeals)
(Oakland – Grant, N.)
GREAT OAKS COUNTRY CLUB, INC., Kenneth Gross
Defendant-Appellant.
This case involves interpretation of a provision of the Michigan Employment Security Act, MCL 421.1 et seq. (MESA), MCL 421.13m(2)(a)(i)(A). The issues are: (1) for what length of time must a client employer have reported no employees or payroll to the Unemployment Insurance Agency (UIA) (eight or more vs. 12 or more calendar quarters) before its unemployment insurance tax rate will be the beneficial “new employer tax rate” and (2) how does the statutory date of “January 1, 2014” factor into this equation? After an administrative law judge, the Michigan Compensation Appellate Commission, and the Macomb Circuit Court determined that the defendant was subject to the shorter 8 or more calendar quarters and entitled to the beneficial “new employer tax rate,” the UIA appealed the circuit court’s decision to the Court of Appeals. In a published opinion, the Court of Appeals reversed the circuit court and interpreted MCL 421.13m(2)(a)(i)(A) to require client employers to have reported no employees or payroll for the longer period of 12 or more calendar quarters where, as here, a professional employer organization (PEO) changes its method of reporting beginning January 1, 2014. The Supreme Court has ordered oral argument on the application to address whether the Court of Appeals correctly determined that the defendant could not satisfy MCL 421.13m(2)(a)(i)(A) by reporting no employees or no payroll for the eight quarters before January 1, 2014.

—MOAA 160657 (15-minute arguments per side)

DESMOND RICKS, Sima Patel
Plaintiff-Appellant,
v (Appeal from Ct of Appeals)
(Ct of Claims – Talbot, M.)
STATE OF MICHIGAN, Eric Restuccia
Defendant-Appellee.
In 1992, the plaintiff was on parole from his 1987 convictions for armed robbery and assault with intent to rob while armed when he was wrongfully convicted of second-degree murder and felony-firearm. His parole was revoked as a result. From October 13, 1992, to February 8, 1997, plaintiff served his remaining sentence on his 1987 convictions. He began serving his prison sentences for second-degree murder and felony-firearm on February 9, 1997. In 2017, new evidence revealed that the plaintiff did not commit the second-degree murder and felony-firearm offenses. These convictions were vacated, and the prosecution ultimately dismissed the charges. The plaintiff was released from prison on May 26, 2017. In June 2017, the plaintiff filed a complaint in the Court of Claims seeking compensation under the Wrongful Imprisonment Compensation Act (WICA), MCL 691.1751 et seq. Both sides stipulated that the plaintiff is entitled to a $1,014,657.53 judgment, plus costs and attorney fees, for the time he served from February 9, 1997, to May 26, 2017. But the Court of Claims held that the plaintiff is not entitled to an additional $216,438.36 in compensation for time served from October 13, 1992, to February 8, 1997, stemming from the parole violation because MCL 691.1755(4) states: “Compensation may not be awarded under subsection (2) for any time during which the plaintiff was imprisoned under a concurrent or consecutive sentence for another conviction.” The Court of Appeals affirmed in a 2-1 published opinion. The Supreme Court has ordered oral argument on the application to address whether the Court of Appeals erred in holding that MCL 691.1755(4) applies in this case to bar the plaintiff from recovering wrongful conviction compensation based on a concurrent or consecutive conviction where the plaintiff was on parole for an earlier crime when he was wrongfully convicted, and his parole was revoked based on the wrongful conviction.

—MOAA 161525 (15-minute arguments per side)

In re SMITH, MINORS
PETITIONER-APPELLEE, Heather Bergmann
v (Appeal from Ct of Appeals)
(Kalamazoo, Family Div – Pierangeli, G.)
RESPONDENT-APPELLANT. Timothy Pinto
The family court assumed jurisdiction over the respondent father’s children on the basis of educational neglect because the children had a high level of absenteeism and tardiness. After the family court assumed jurisdiction, it terminated the respondent’s parental rights for failing to comply with his parent agency treatment plan. On appeal, the respondent argued that there was insufficient evidence to support the family court’s assumption of jurisdiction pursuant to In re Ferranti, 504 Mich 1 (2019). The Court of Appeals affirmed in an unpublished opinion, with one judge dissenting. The Supreme Court has ordered oral argument on the application to address: (1) whether a child’s chronic absence from school is, on its own, a sufficient basis for the trial court to assume jurisdiction on the ground of educational neglect as contemplated by MCL 712A.2(b)(2); (2) whether proving allegations of educational neglect requires demonstrating that the child has suffered harm, see MCL 712A.2(b)(1)(b), and, if so, what constitutes harm for these purposes; and (3) whether the trial court clearly erred when it exercised jurisdiction over the minor children solely on the basis of educational neglect

—MOAA 160661 (15-minute arguments per side)

PEOPLE OF THE STATE OF MICHIGAN, Louis Meizlish
Plaintiff-Appellee,
v (Appeal from Ct of Appeals)
(Oakland – Langford-Morris, D.)
CLEOPHAS ANDREW BROWN, Timothy Doman
Defendant-Appellant.
After he was pulled over for running a red light and was determined to be intoxicated, the defendant was charged with carrying a concealed weapon (CCW) (in an automobile), second-offense operating while intoxicated (OWI), and possession of a firearm while under the influence. His concealed pistol license (CPL) had previously been revoked because of an OWI, but he asserted that he did not receive notice of the revocation. The trial court granted the defendant’s motion to dismiss the CCW charge, holding that the prosecution failed to produce evidence that “conclusively demonstrates” that the defendant received notice that his CPL was revoked, as required by MCL 28.428. The court held that the evidence of “verbal” notice – a LEIN entry – was insufficient. The Court of Appeals reversed the trial court in a published opinion, holding that the requirement that CPL holders receive notice if their CPL is suspended or revoked, MCL 28.428, only shields persons from criminal liability under that statute, not the CCW statute. The Court of Appeals also determined that, regardless, the trial court erred in holding that “verbal” notice is insufficient under MCL 28.428 and that the uncontested evidence showed that the defendant also at least received written notice that his CPL was suspended. The Supreme Court has ordered oral argument on the application to address: (1) whether in a prosecution for carrying a concealed weapon under MCL 750.227(2), the prosecutor must establish that the defendant had notice under MCL 28.428 that his concealed pistol license had been suspended or revoked; and (2) whether the Court of Appeals erred in determining that if notice is required, the evidence demonstrated that the defendant was served with adequate notice that he could not legally possess a concealed pistol.


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