The Michigan Supreme Court (MSC) will hear oral arguments in eight cases on Wednesday, December 10, and Thursday, December 11, beginning at 9:30 a.m. on both days. The cases will be heard in the 6th floor courtroom at the Michigan Hall of Justice at 925 W. Ottawa St. in Lansing and will be livestreamed from the MSC website.
The notice of cases is posted on the Supreme Court’s oral arguments web page.
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, December 10
Morning Session – 9:30 a.m.
167867
SHANNON BLACKMAN, (attorney Megan Reynolds)
Plaintiff-Appellee/
Cross-Appellant,
v
(Appeal from Ct of Appeals)
(Calhoun CC - Kirkham, B.)
TYLER DAVID MILLWARD, (attorney TBD)
Defendant-Appellant/
Cross-Appellee.
The defendant was a high school teacher who had a sexual relationship with the plaintiff when she was sixteen years old and one of his students. After the relationship was discovered, the defendant resigned from his teaching position in February 2018. The relationship continued, and on December 15, 2018, the plaintiff gave birth to a child. The parties executed an acknowledgment of parentage (AOP) after the child was born. The defendant pleaded guilty to three counts of third-degree criminal sexual conduct for incidents that took place in 2017, as well as one count of witness intimidation for trying to convince the plaintiff to lie to police about their relationship. He was sentenced to 5.5 to 15 years in prison, with an earliest release date of November 12, 2025. In March 2023, the defendant filed a motion to establish parenting time. In response, the plaintiff sought to revoke the AOP under the Revocation of Parentage Act, MCL 722.1431 et seq., which provides remedies for a survivor of sexual assault who becomes pregnant by, and thereafter is raising the child of, her assailant. Following a hearing at which no evidence was taken, the trial court revoked the AOP, declared that the defendant had no parental rights to the child, allowed the plaintiff to amend the child’s birth certificate to reflect the revocation, declared any orders recognizing the defendant as the child’s father to be void, and cancelled an evidentiary hearing on the defendant’s motion for parenting time. The Court of Appeals, in a published opinion, vacated the trial court’s order and remanded for an evidentiary hearing to determine whether the child’s conception was the result of nonconsensual sexual penetration. The Court of Appeals also held that the three-year limitations period set forth in MCL 722.1437(1) does not apply to the plaintiff’s claim to revoke the AOP under MCL 722.1445(2). The Supreme Court has ordered oral argument on the application to address: (1) whether an action to revoke an acknowledgement of parentage based upon a claim that the child was conceived as a result of nonconsensual sexual penetration, MCL 722.1445(2), is subject to the limitations period set forth in MCL 722.1437(1); and (2) whether the Calhoun Circuit Court erred by refusing to conduct a fact-finding hearing to determine whether the child was conceived as a result of nonconsensual sexual penetration and, if so, the requirements of such a hearing. See MCL 722.1445(2).
167718
JAN BOWERMAN, (attorney Christopher Desmond
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Montcalm CC - Schafer, R.)
RED OAK MANAGEMENT CO., INC., (attorney Daniel James), and WESTVELD SERVICES, LLC, (attorney Charlynn Turner)
Defendants-Appellees,
and
BOB’S ASPHALT & PAVING, INC.,
Defendant.
The plaintiff lived at Stanton Parks Apartments. While she was taking out her trash, she stepped into a trench and fractured her ankle. The trench was created by defendant Westveld Services, LLC, when it poured a concrete slab for a dumpster. The trench was about ten feet long and three inches deep and it ran along the front of the concrete slab. Westveld was hired by defendant Red Oak Management Co., Inc., to replace concrete in various areas around the apartment complex. Westveld believed that defendant Bob’s Asphalt & Paving, Inc., was going to fill in the trench within a day or two, but it did not do so. The plaintiff filed suit, asserting negligence claims against Westveld and Bob’s Asphalt, and alleging that Red Oak violated MCL 554.139(1)(a), which requires a lessor of residential premises to keep the common areas fit for the use intended by the parties. The trial court granted summary disposition in favor of all defendants. Plaintiff appealed the trial court’s order as it pertained to Red Oak and Westveld. The Court of Appeals affirmed in a 2-1 unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether genuine issues of material fact exist as to whether: (1) defendant Westveld Services, LLC, breached a duty that it owed to the plaintiff; and (2) defendant Red Oak Management Co., Inc., violated MCL 554.139(1)(a).
167373
PEOPLE OF THE STATE OF MICHIGAN, (attorney Kyle Atwood)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Grand Traverse CC - Elsenheimer, K.)
ZEBADIAH JOSEPH SORIANO, (attorney Ali Nathaniel Wright)
Defendant-Appellant.
The defendant and his friend AC used LSD at AC’s home. AC told police that defendant attempted to sexually assault her and then fled. When the police found the defendant approximately two hours later, he was acting strangely and making nonsensical statements. The police took the defendant to the hospital. While at the hospital, the defendant made incriminating statements after being advised of his constitutional rights. The defendant was charged with assault with intent to commit criminal sexual conduct involving penetration and assault by strangulation. He filed a pretrial motion to suppress his statements to the police, arguing that his waiver of his constitutional rights was not valid due to his intoxication. The trial court denied the motion, and a jury subsequently convicted the defendant of assault with intent to commit criminal sexual conduct involving penetration. He filed a motion for a new trial, raising several arguments, including a claim of ineffective assistance of counsel due to trial counsel’s failure to support the motion to suppress with expert testimony. The trial court denied the motion. The Court of Appeals affirmed the defendant’s conviction in a 2-1 unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the trial court clearly erred when it found that the defendant made a knowing, voluntary, and intelligent waiver of his rights under Miranda v Arizona, 384 US 436 (1966); (2) whether the trial court abused its discretion when it denied the defendant’s motion to suppress, see People v Cipriano, 431 Mich 315, 333-334 (1988); and (3) whether trial counsel was ineffective in failing to obtain an expert to address the defendant’s level of intoxication while in the hospital.
163968
PEOPLE OF THE STATE OF MICHIGAN, (attorney Eric Restuccia)
Plaintiff-Appellee,
v (Appeal from Ct of Appeals)
(Van Buren CC - Brickley, K.)
EDWIN LAMAR LANGSTON, (attorney Mira Edmonds)
Defendant-Appellant.
In 1976, the defendant was convicted of felony murder for aiding and abetting an armed robbery resulting in death and was sentenced to life imprisonment without parole. The Court of Appeals reversed and remanded for a new trial on the basis that the trial court did not properly instruct the jury on malice. The prosecutor filed an application for leave to appeal in the Supreme Court, which held the application in abeyance pending its decision in People v Aaron, 409 Mich 672 (1980). In Aaron, the Court held that malice is a necessary element of any murder, including felony murder, but held that its decision would only apply to trials in progress and those occurring after the date of the opinion, which was issued on November 24, 1980. After issuing its decision in Aaron, the Supreme Court reversed the judgment of the Court of Appeals and reinstated the defendant’s murder conviction. In 2020, the defendant filed a motion for relief from judgment, arguing that the prospective-only statement in Aaron was contrary to law, an improper application of constitutional avoidance, and violated due process. The defendant further argued that a sentence of life without parole is cruel and/or unusual punishment for felony murder convictions obtained without a finding of malice and that he was denied the effective assistance of appellate counsel due to counsel’s failure to raise these arguments on direct appeal. The trial court denied the defendant’s motion and the Court of Appeals denied his application for leave to appeal. The Supreme Court ordered oral argument on the application to address: (1) whether People v Aaron, 409 Mich 672 (1980), correctly limited its application to prospective-only relief; (2) whether, in the absence of evidence that the defendant acted with malice, mandatory life without parole for felony murder constitutes cruel and/or unusual punishment under Const 1963, art 1, § 16 or US Const, Am VIII; and (3) whether People v Hall, 396 Mich 650 (1976), should be overruled. After hearing oral argument on the application, the Supreme Court directed the parties to file supplemental briefs. After receiving the supplemental briefs, the Supreme Court granted leave to appeal to address: (1) whether People v Aaron, 409 Mich 672 (1980), correctly limited its application to prospective-only relief; (2) whether, in the absence of evidence that the defendant acted with malice, mandatory life without parole for felony murder constitutes cruel and/or unusual punishment under Const 1963, art 1, § 16 or US Const, Am VIII; (3) whether People v Hall, 396 Mich 650 (1976), should be overruled; (4) whether a mandatory sentence of life imprisonment without parole for felony murder is cruel and/or unusual punishment under Const 1963, art 1, § 16 or US Const, Am VIII, in all cases decided before Aaron, where the jury was not required to make a finding of malice, or only in those pre-Aaron cases where overwhelming evidence of malice was not otherwise presented at trial; (5) if the latter, the standard by which the courts should determine whether sufficient evidence of malice was presented and the means by which a defendant should present such an argument; and (6) what remedy is required if any defendants’ sentences of mandatory life imprisonment without parole are found invalid.
Thursday, December 11,
Morning Session – 9:30 a.m.
167736
PEOPLE OF THE STATE OF MICHIGAN, (attorney Eric Restuccia)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Tuscola CC - Gierhard, A.)
GARY J. SHAVER, JR., (attorney Jessica Zimbelman)
Defendant-Appellant.
In 2015, the defendant was a convicted sex offender required to register under the 2011 version of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. He arranged to move into a new apartment and notified law enforcement in anticipation of his change of address. But when the prior tenant held over, he was not able to move in as planned. The defendant did not immediately notify law enforcement of this turn of events, and he was charged with failing to comply with SORA. He entered a guilty plea to failure to comply with SORA, MCL 28.729 (willful failure to immediately notify law enforcement of change of residence), second offense, with a fourth-offense habitual offender enhancement. The trial court sentenced him in 2016 to six months in jail and five years of probation. He did not appeal, but violated his probation and unsuccessfully appealed the resulting prison sentence. In 2022, the defendant sought relief from judgment based on this Court’s holding in People v Betts, 507 Mich 527 (2021), that the 2011 SORA amounted to ex post facto punishment. The trial court granted his motion, resulting in his discharge from prison for the probation violation, but the Court of Appeals granted the prosecution’s application for leave to appeal and reversed in a published opinion, holding that Betts does not apply retroactively to cases that have become final on expiration of direct review. The Supreme Court has granted leave to appeal to address whether this Court’s decision in People v Betts, 507 Mich 527 (2021), applies retroactively to cases that have become final after the expiration of the period for direct review.
167913
CHRISTINA ZINK, (attorney Cristine Wasserman)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Genesee CC - Bell, C.)
GENESEE INTERMEDIATE SCHOOL DISTRICT and JAN COX, (attorney Kenneth Chapie)
Defendants-Appellees.
The plaintiff was employed by defendant Genesee Intermediate School District as a special education teacher. Defendant Jan Cox was the principal of the school at which the plaintiff worked. After a student in the plaintiff’s classroom engaged in violent behavior, the plaintiff communicated to Cox that the student should not be returned to the classroom without a plan to address the student’s behavior. Nevertheless, the student was returned to the classroom. The plaintiff reported what she believed was a violation of the district’s policies and procedures in addressing the student’s behavior. The plaintiff alleges that the defendants subsequently harassed and retaliated against her, resulting in her resignation. The plaintiff filed suit against the defendants, alleging retaliation under the Whistleblowers’ Protection Act, MCL 15.361 et seq., and alleging that she was constructively discharged for her reporting of violations of law. The defendants filed a motion for summary disposition under MCR 2.116(C)(7), arguing that the plaintiff’s complaint was barred by the 90-day statute of limitations set forth in MCL 15.363(1). In opposing the motion, the plaintiff argued that her constructive discharge was an adverse employment action for purposes of commencing the statute of limitations and that her complaint was filed within 90 days of her constructive discharge. The trial court granted the defendants’ motion for summary disposition, and the Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether constructive discharge constitutes adverse employment action under the Whistleblowers’ Protection Act, MCL 15.361 et seq.; (2) whether Joliet v Pitoniak, 475 Mich 30 (2006), and Magee v DaimlerChrysler, 472 Mich 108 (2005), were correctly decided, see Jacobson v Parda Federal Credit Union, 457 Mich 318 (1998); (3) whether they were properly applied in this case; and (4) if they were not correctly decided, whether this Court should overrule them.
166722
PEOPLE OF THE STATE OF MICHIGAN, (attorney James Allen)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Isabella CC - Duthie, M.)
TIMOTHY JOSEPH WALKER, (attorney TBD)
Defendant-Appellant.
The defendant was selling drugs from a hotel room. The Michigan State Police detained and searched him and his backpack when he checked out of the hotel and discovered methamphetamine, crack cocaine, fentanyl, three digital scales, several Ziploc baggies, and $594 in cash. The defendant was charged with three counts of possession with intent to deliver a controlled substance in connection with the methamphetamine, cocaine, and fentanyl that were seized. A second offense drug notice was included with each charge. The defendant pleaded guilty to possession of methamphetamine, second or subsequent offense, in exchange for the dismissal of the other charges. The trial court sentenced the defendant to five to 20 years in prison. In scoring the guidelines minimum sentence range, the trial court assessed five points for Offense Variable (OV) 15. Five points may be assessed for OV 15 if the offense “involved the delivery or possession with intent to deliver marihuana or any other controlled substance or a counterfeit controlled substance or possession of controlled substances or counterfeit controlled substances having a value or under such circumstances as to indicate trafficking.” MCL 777.45(1)(h). The defendant moved for resentencing, arguing that the trial court erred in assessing five points for OV 15 because there was no direct evidence that he was involved in trafficking. The trial court denied the motion 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. People v Walker, 511 Mich 902 (2023). On remand, the Court of Appeals affirmed the scoring of OV 15 in an unpublished opinion, holding that the trial court could reasonably infer that the defendant was involved in trafficking by a preponderance of the evidence. The Supreme Court has ordered oral argument on the application to address whether, when scoring Offense Variable (OV) 15 (aggravated controlled substance offenses) under either of the circumstances described in MCL 777.45(1)(h), a defendant may be properly assigned points only for the sentencing offense or whether the sentencing court may consider conduct that was part of the same offense and formed the basis of a charge that was dismissed as a result of a plea bargain. See People v Gray (After Remand), 297 Mich App 22 (2012), and People v McGraw, 484 Mich 120, 135 (2009).
167826
JANICE SHERMAN, (attorney Pratheep Sevanthinathan)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Washtenaw CC - Kuhnke, C.)
PROGRESSIVE MICHIGAN INSURANCE COMPANY, (attorney Kaitlyn Cramer)
Defendant-Appellee,
and
JOHN DOE,
Defendant.
The plaintiff was a passenger in one of her insured vehicles when it was struck from behind by another vehicle. She was injured in the accident, so she sought to recover personal protection insurance (PIP) benefits through her insurer, defendant Progressive Michigan Insurance Company. The defendant determined that the plaintiff made misrepresentations in her insurance application about where she was garaging her vehicles and who was residing with her, which would have increased her premium had this information been disclosed. In light of these misrepresentations, the defendant denied coverage, rescinded the policy, and refunded the previously paid premiums. The plaintiff filed suit against the defendant, claiming that it unlawfully refused to pay PIP benefits and breached the insurance contract. The defendant moved for summary disposition, arguing that the policy was rescinded from the beginning due to the plaintiff’s material misrepresentations. The trial court denied the motion and reformed the policy to reflect the proper address and premium increase. The Court of Appeals reversed the trial court in a published opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the Court of Appeals applied the proper standard of review in its consideration of the trial court’s factual findings made in connection with a decision to grant or deny equitable rescission; (2) if not, the standard of review that should have been applied; and (3) if the trial court erred in its determination, whether the Court of Appeals should have remanded to the trial court to allow it to rebalance the equities in the first instance.
The notice of cases is posted on the Supreme Court’s oral arguments web page.
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, December 10
Morning Session – 9:30 a.m.
167867
SHANNON BLACKMAN, (attorney Megan Reynolds)
Plaintiff-Appellee/
Cross-Appellant,
v
(Appeal from Ct of Appeals)
(Calhoun CC - Kirkham, B.)
TYLER DAVID MILLWARD, (attorney TBD)
Defendant-Appellant/
Cross-Appellee.
The defendant was a high school teacher who had a sexual relationship with the plaintiff when she was sixteen years old and one of his students. After the relationship was discovered, the defendant resigned from his teaching position in February 2018. The relationship continued, and on December 15, 2018, the plaintiff gave birth to a child. The parties executed an acknowledgment of parentage (AOP) after the child was born. The defendant pleaded guilty to three counts of third-degree criminal sexual conduct for incidents that took place in 2017, as well as one count of witness intimidation for trying to convince the plaintiff to lie to police about their relationship. He was sentenced to 5.5 to 15 years in prison, with an earliest release date of November 12, 2025. In March 2023, the defendant filed a motion to establish parenting time. In response, the plaintiff sought to revoke the AOP under the Revocation of Parentage Act, MCL 722.1431 et seq., which provides remedies for a survivor of sexual assault who becomes pregnant by, and thereafter is raising the child of, her assailant. Following a hearing at which no evidence was taken, the trial court revoked the AOP, declared that the defendant had no parental rights to the child, allowed the plaintiff to amend the child’s birth certificate to reflect the revocation, declared any orders recognizing the defendant as the child’s father to be void, and cancelled an evidentiary hearing on the defendant’s motion for parenting time. The Court of Appeals, in a published opinion, vacated the trial court’s order and remanded for an evidentiary hearing to determine whether the child’s conception was the result of nonconsensual sexual penetration. The Court of Appeals also held that the three-year limitations period set forth in MCL 722.1437(1) does not apply to the plaintiff’s claim to revoke the AOP under MCL 722.1445(2). The Supreme Court has ordered oral argument on the application to address: (1) whether an action to revoke an acknowledgement of parentage based upon a claim that the child was conceived as a result of nonconsensual sexual penetration, MCL 722.1445(2), is subject to the limitations period set forth in MCL 722.1437(1); and (2) whether the Calhoun Circuit Court erred by refusing to conduct a fact-finding hearing to determine whether the child was conceived as a result of nonconsensual sexual penetration and, if so, the requirements of such a hearing. See MCL 722.1445(2).
167718
JAN BOWERMAN, (attorney Christopher Desmond
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Montcalm CC - Schafer, R.)
RED OAK MANAGEMENT CO., INC., (attorney Daniel James), and WESTVELD SERVICES, LLC, (attorney Charlynn Turner)
Defendants-Appellees,
and
BOB’S ASPHALT & PAVING, INC.,
Defendant.
The plaintiff lived at Stanton Parks Apartments. While she was taking out her trash, she stepped into a trench and fractured her ankle. The trench was created by defendant Westveld Services, LLC, when it poured a concrete slab for a dumpster. The trench was about ten feet long and three inches deep and it ran along the front of the concrete slab. Westveld was hired by defendant Red Oak Management Co., Inc., to replace concrete in various areas around the apartment complex. Westveld believed that defendant Bob’s Asphalt & Paving, Inc., was going to fill in the trench within a day or two, but it did not do so. The plaintiff filed suit, asserting negligence claims against Westveld and Bob’s Asphalt, and alleging that Red Oak violated MCL 554.139(1)(a), which requires a lessor of residential premises to keep the common areas fit for the use intended by the parties. The trial court granted summary disposition in favor of all defendants. Plaintiff appealed the trial court’s order as it pertained to Red Oak and Westveld. The Court of Appeals affirmed in a 2-1 unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether genuine issues of material fact exist as to whether: (1) defendant Westveld Services, LLC, breached a duty that it owed to the plaintiff; and (2) defendant Red Oak Management Co., Inc., violated MCL 554.139(1)(a).
167373
PEOPLE OF THE STATE OF MICHIGAN, (attorney Kyle Atwood)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Grand Traverse CC - Elsenheimer, K.)
ZEBADIAH JOSEPH SORIANO, (attorney Ali Nathaniel Wright)
Defendant-Appellant.
The defendant and his friend AC used LSD at AC’s home. AC told police that defendant attempted to sexually assault her and then fled. When the police found the defendant approximately two hours later, he was acting strangely and making nonsensical statements. The police took the defendant to the hospital. While at the hospital, the defendant made incriminating statements after being advised of his constitutional rights. The defendant was charged with assault with intent to commit criminal sexual conduct involving penetration and assault by strangulation. He filed a pretrial motion to suppress his statements to the police, arguing that his waiver of his constitutional rights was not valid due to his intoxication. The trial court denied the motion, and a jury subsequently convicted the defendant of assault with intent to commit criminal sexual conduct involving penetration. He filed a motion for a new trial, raising several arguments, including a claim of ineffective assistance of counsel due to trial counsel’s failure to support the motion to suppress with expert testimony. The trial court denied the motion. The Court of Appeals affirmed the defendant’s conviction in a 2-1 unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the trial court clearly erred when it found that the defendant made a knowing, voluntary, and intelligent waiver of his rights under Miranda v Arizona, 384 US 436 (1966); (2) whether the trial court abused its discretion when it denied the defendant’s motion to suppress, see People v Cipriano, 431 Mich 315, 333-334 (1988); and (3) whether trial counsel was ineffective in failing to obtain an expert to address the defendant’s level of intoxication while in the hospital.
163968
PEOPLE OF THE STATE OF MICHIGAN, (attorney Eric Restuccia)
Plaintiff-Appellee,
v (Appeal from Ct of Appeals)
(Van Buren CC - Brickley, K.)
EDWIN LAMAR LANGSTON, (attorney Mira Edmonds)
Defendant-Appellant.
In 1976, the defendant was convicted of felony murder for aiding and abetting an armed robbery resulting in death and was sentenced to life imprisonment without parole. The Court of Appeals reversed and remanded for a new trial on the basis that the trial court did not properly instruct the jury on malice. The prosecutor filed an application for leave to appeal in the Supreme Court, which held the application in abeyance pending its decision in People v Aaron, 409 Mich 672 (1980). In Aaron, the Court held that malice is a necessary element of any murder, including felony murder, but held that its decision would only apply to trials in progress and those occurring after the date of the opinion, which was issued on November 24, 1980. After issuing its decision in Aaron, the Supreme Court reversed the judgment of the Court of Appeals and reinstated the defendant’s murder conviction. In 2020, the defendant filed a motion for relief from judgment, arguing that the prospective-only statement in Aaron was contrary to law, an improper application of constitutional avoidance, and violated due process. The defendant further argued that a sentence of life without parole is cruel and/or unusual punishment for felony murder convictions obtained without a finding of malice and that he was denied the effective assistance of appellate counsel due to counsel’s failure to raise these arguments on direct appeal. The trial court denied the defendant’s motion and the Court of Appeals denied his application for leave to appeal. The Supreme Court ordered oral argument on the application to address: (1) whether People v Aaron, 409 Mich 672 (1980), correctly limited its application to prospective-only relief; (2) whether, in the absence of evidence that the defendant acted with malice, mandatory life without parole for felony murder constitutes cruel and/or unusual punishment under Const 1963, art 1, § 16 or US Const, Am VIII; and (3) whether People v Hall, 396 Mich 650 (1976), should be overruled. After hearing oral argument on the application, the Supreme Court directed the parties to file supplemental briefs. After receiving the supplemental briefs, the Supreme Court granted leave to appeal to address: (1) whether People v Aaron, 409 Mich 672 (1980), correctly limited its application to prospective-only relief; (2) whether, in the absence of evidence that the defendant acted with malice, mandatory life without parole for felony murder constitutes cruel and/or unusual punishment under Const 1963, art 1, § 16 or US Const, Am VIII; (3) whether People v Hall, 396 Mich 650 (1976), should be overruled; (4) whether a mandatory sentence of life imprisonment without parole for felony murder is cruel and/or unusual punishment under Const 1963, art 1, § 16 or US Const, Am VIII, in all cases decided before Aaron, where the jury was not required to make a finding of malice, or only in those pre-Aaron cases where overwhelming evidence of malice was not otherwise presented at trial; (5) if the latter, the standard by which the courts should determine whether sufficient evidence of malice was presented and the means by which a defendant should present such an argument; and (6) what remedy is required if any defendants’ sentences of mandatory life imprisonment without parole are found invalid.
Thursday, December 11,
Morning Session – 9:30 a.m.
167736
PEOPLE OF THE STATE OF MICHIGAN, (attorney Eric Restuccia)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Tuscola CC - Gierhard, A.)
GARY J. SHAVER, JR., (attorney Jessica Zimbelman)
Defendant-Appellant.
In 2015, the defendant was a convicted sex offender required to register under the 2011 version of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. He arranged to move into a new apartment and notified law enforcement in anticipation of his change of address. But when the prior tenant held over, he was not able to move in as planned. The defendant did not immediately notify law enforcement of this turn of events, and he was charged with failing to comply with SORA. He entered a guilty plea to failure to comply with SORA, MCL 28.729 (willful failure to immediately notify law enforcement of change of residence), second offense, with a fourth-offense habitual offender enhancement. The trial court sentenced him in 2016 to six months in jail and five years of probation. He did not appeal, but violated his probation and unsuccessfully appealed the resulting prison sentence. In 2022, the defendant sought relief from judgment based on this Court’s holding in People v Betts, 507 Mich 527 (2021), that the 2011 SORA amounted to ex post facto punishment. The trial court granted his motion, resulting in his discharge from prison for the probation violation, but the Court of Appeals granted the prosecution’s application for leave to appeal and reversed in a published opinion, holding that Betts does not apply retroactively to cases that have become final on expiration of direct review. The Supreme Court has granted leave to appeal to address whether this Court’s decision in People v Betts, 507 Mich 527 (2021), applies retroactively to cases that have become final after the expiration of the period for direct review.
167913
CHRISTINA ZINK, (attorney Cristine Wasserman)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Genesee CC - Bell, C.)
GENESEE INTERMEDIATE SCHOOL DISTRICT and JAN COX, (attorney Kenneth Chapie)
Defendants-Appellees.
The plaintiff was employed by defendant Genesee Intermediate School District as a special education teacher. Defendant Jan Cox was the principal of the school at which the plaintiff worked. After a student in the plaintiff’s classroom engaged in violent behavior, the plaintiff communicated to Cox that the student should not be returned to the classroom without a plan to address the student’s behavior. Nevertheless, the student was returned to the classroom. The plaintiff reported what she believed was a violation of the district’s policies and procedures in addressing the student’s behavior. The plaintiff alleges that the defendants subsequently harassed and retaliated against her, resulting in her resignation. The plaintiff filed suit against the defendants, alleging retaliation under the Whistleblowers’ Protection Act, MCL 15.361 et seq., and alleging that she was constructively discharged for her reporting of violations of law. The defendants filed a motion for summary disposition under MCR 2.116(C)(7), arguing that the plaintiff’s complaint was barred by the 90-day statute of limitations set forth in MCL 15.363(1). In opposing the motion, the plaintiff argued that her constructive discharge was an adverse employment action for purposes of commencing the statute of limitations and that her complaint was filed within 90 days of her constructive discharge. The trial court granted the defendants’ motion for summary disposition, and the Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether constructive discharge constitutes adverse employment action under the Whistleblowers’ Protection Act, MCL 15.361 et seq.; (2) whether Joliet v Pitoniak, 475 Mich 30 (2006), and Magee v DaimlerChrysler, 472 Mich 108 (2005), were correctly decided, see Jacobson v Parda Federal Credit Union, 457 Mich 318 (1998); (3) whether they were properly applied in this case; and (4) if they were not correctly decided, whether this Court should overrule them.
166722
PEOPLE OF THE STATE OF MICHIGAN, (attorney James Allen)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Isabella CC - Duthie, M.)
TIMOTHY JOSEPH WALKER, (attorney TBD)
Defendant-Appellant.
The defendant was selling drugs from a hotel room. The Michigan State Police detained and searched him and his backpack when he checked out of the hotel and discovered methamphetamine, crack cocaine, fentanyl, three digital scales, several Ziploc baggies, and $594 in cash. The defendant was charged with three counts of possession with intent to deliver a controlled substance in connection with the methamphetamine, cocaine, and fentanyl that were seized. A second offense drug notice was included with each charge. The defendant pleaded guilty to possession of methamphetamine, second or subsequent offense, in exchange for the dismissal of the other charges. The trial court sentenced the defendant to five to 20 years in prison. In scoring the guidelines minimum sentence range, the trial court assessed five points for Offense Variable (OV) 15. Five points may be assessed for OV 15 if the offense “involved the delivery or possession with intent to deliver marihuana or any other controlled substance or a counterfeit controlled substance or possession of controlled substances or counterfeit controlled substances having a value or under such circumstances as to indicate trafficking.” MCL 777.45(1)(h). The defendant moved for resentencing, arguing that the trial court erred in assessing five points for OV 15 because there was no direct evidence that he was involved in trafficking. The trial court denied the motion 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. People v Walker, 511 Mich 902 (2023). On remand, the Court of Appeals affirmed the scoring of OV 15 in an unpublished opinion, holding that the trial court could reasonably infer that the defendant was involved in trafficking by a preponderance of the evidence. The Supreme Court has ordered oral argument on the application to address whether, when scoring Offense Variable (OV) 15 (aggravated controlled substance offenses) under either of the circumstances described in MCL 777.45(1)(h), a defendant may be properly assigned points only for the sentencing offense or whether the sentencing court may consider conduct that was part of the same offense and formed the basis of a charge that was dismissed as a result of a plea bargain. See People v Gray (After Remand), 297 Mich App 22 (2012), and People v McGraw, 484 Mich 120, 135 (2009).
167826
JANICE SHERMAN, (attorney Pratheep Sevanthinathan)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Washtenaw CC - Kuhnke, C.)
PROGRESSIVE MICHIGAN INSURANCE COMPANY, (attorney Kaitlyn Cramer)
Defendant-Appellee,
and
JOHN DOE,
Defendant.
The plaintiff was a passenger in one of her insured vehicles when it was struck from behind by another vehicle. She was injured in the accident, so she sought to recover personal protection insurance (PIP) benefits through her insurer, defendant Progressive Michigan Insurance Company. The defendant determined that the plaintiff made misrepresentations in her insurance application about where she was garaging her vehicles and who was residing with her, which would have increased her premium had this information been disclosed. In light of these misrepresentations, the defendant denied coverage, rescinded the policy, and refunded the previously paid premiums. The plaintiff filed suit against the defendant, claiming that it unlawfully refused to pay PIP benefits and breached the insurance contract. The defendant moved for summary disposition, arguing that the policy was rescinded from the beginning due to the plaintiff’s material misrepresentations. The trial court denied the motion and reformed the policy to reflect the proper address and premium increase. The Court of Appeals reversed the trial court in a published opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the Court of Appeals applied the proper standard of review in its consideration of the trial court’s factual findings made in connection with a decision to grant or deny equitable rescission; (2) if not, the standard of review that should have been applied; and (3) if the trial court erred in its determination, whether the Court of Appeals should have remanded to the trial court to allow it to rebalance the equities in the first instance.
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