The Michigan Supreme Court announced that oral arguments in 11 cases will be heard on Tuesday and Wednesday, November 9-10. All cases, but one, will be heard in person in the Supreme Court courtroom on the 6th floor of the Michigan Hall of Justice, 925 W. Ottawa Street, Lansing. Those cases will be livestreamed from the MSC website.
The first case on Wednesday—No. 161723, People v Pippen—is the only November case that will be heard remotely via Zoom; it will be livestreamed from the MSC YouTube page at www.youtube.com/user/MichiganCourts.
The schedule of arguments is posted on the Supreme court’s oral arguments web page (www.courts.michigan.gov/courts/supreme-court/schedule-of-oral-arguments).
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.
Tuesday, November 9, 2021
Morning Session – 9:30 a.m.
161892
Deborah Lynn Foster (attorney, Adam Kruppstadt), Plaintiff/ Counter-Defendant Appellant,
v
(Appeal from Ct of Appeals)
(Dickinson CC – Slagle, T.)
Ray James Foster (attorney Carson Tucker), Defendant/ Counter-Plaintiff Appellee.
In their divorce agreement, the parties waived their rights to seek spousal support and agreed that the defendant’s military disability benefits were not subject to division by the court under federal law. But in the property settlement the plaintiff was awarded 50% of the defendant’s retirement pay, and the parties agreed to an offset provision, under which in the event the defendant’s retirement decreased because his disability benefits increased, he would have to pay the plaintiff proportionally to offset that reduction. When the defendant’s retirement pay did, in fact, decrease because his disability benefits increased, the trial court held the defendant in contempt of court for failing to pay in accordance with the consent divorce judgment. In the first appeal, the Court of Appeals rejected the defendant’s argument that the offset was unenforceable under federal law that totally preempts this area. The Supreme Court remanded the case to the Court of Appeals for reconsideration in light of Howell v Howell, 581 US ___; 137 S Ct 1400; 197 L Ed 2d 781 (2017). On remand, the Court of Appeals again affirmed the trial court, but the Supreme Court again remanded the case to the Court of Appeals to “address the effect of [its] holdings on defendant’s ability to challenge the terms of the consent judgment.” This time, in an unpublished opinion, the Court of Appeals reversed the trial court’s order requiring the defendant to pay the plaintiff under the offset provision because the trial court lacked subject-matter jurisdiction over the defendant’s retirement pay. The Supreme Court has granted leave to appeal to address whether the defendant has the ability to challenge the relevant term of the consent judgment in this case given that federal law precludes a provision requiring that the plaintiff receive reimbursement or indemnification payments to compensate for reductions in the defendant’s military retirement pay resulting from his election to receive any disability benefits. See Howell v Howell, 581 US ___; 137 S Ct 1400; 197 L Ed 2d 781 (2017).
160877-8
Deborah Tschirhart (attorney, Mark Bendure), Personal Representative of the Estate of Shaun M. Tschirhart, Plaintiff-Appellant/ Cross-Appellee,
v
(Appeal from Ct of Appeals)
(Oakland CC – O’Brien, D.)
City of Troy, Alexander Yarbrough (attorney, Julie Dufrane), Nicholas Yarbrough, Mary Alleman, and Alexis Calhoun, Defendants-Appellees, and Susan O’Connor (attorney, Michelle Thomas), Defendant-Appellee/Cross-Appellant.
While attending an event at the Troy Community Center, the plaintiff’s adult son Shaun Tschirhart had a seizure and drowned in the swimming pool. The plaintiff sued the City of Troy and individual defendants. The trial court denied the defendants’ motions for summary disposition, but the Court of Appeals reversed in an unpublished opinion, holding that the plaintiff failed to allege sufficient facts to state a claim in avoidance of governmental immunity. The Court of Appeals dismissed part of the claim on causation grounds and dismissed the remaining allegations because they did not rise to the level of gross negligence. The Court of Appeals held that, on remand, the plaintiff could file a motion in the trial court seeking leave to amend her complaint. The Supreme Court has ordered oral argument on the application to address whether the Court of Appeals erred in concluding that, under this Court’s precedent, a lifeguard’s delay, even if it constitutes gross negligence, is not a cause in fact of drowning for purposes of determining governmental immunity under MCL 691.1407(2)(c) because of the inherent uncertainty of successful rescue. See Beals v Michigan, 497 Mich 363 (2015); Ray v Swager, 501 Mich 52 (2017).
161254
Andrew P. Campbell,
Petitioner-Appellee,
v
(Appeal from Ct of Appeals)
(Tax Tribunal – Gadola, P.)
Michigan Department of Treasury (attorney, James Ziehmer), Respondent-Appellant.
Arguing for amicus Real Property Law Section of SBM (attorney, Jason Long)
The petitioner was not entitled to retain a principal residence exemption (PRE) on his property in Michigan when he was also receiving a similar exemption on property that he purchased in Arizona in 2016. According to the petitioner, he did not request the PRE on the Arizona property, but it was granted automatically when he purchased the home. The granting of the exemption in Arizona raised the question as to whether, under MCL 211.7cc(4), the petitioner’s PRE on his Michigan property continued through December 31 of the calendar year in which he received the exemption in Arizona or was terminated immediately. The Michigan Tax Tribunal held that the petitioner’s PRE continued until December 31. The Court of Appeals affirmed in a published opinion. The Supreme Court has granted leave to appeal to address whether the Court of Appeals erred by interpreting MCL 211.7cc(4) such that the petitioner’s PRE on his property continued through December 31 of the calendar year in which he was not entitled to the exemption.
161797, 161805
161797
People of the State of Michigan (attorney, Linus Banghart-Linn), Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Arenac CC – Vollbach, R.)
Micheline Nicole Leffew (attorney, Katherine Marcuz), Defendant-Appellant.
161805
People of the State of Michigan (attorney, Linus Banghart-Linn), Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Arenac CC – Frawley, L.)
Jeremiah James Leffew (attorney, Joel Kershaw), Defendant-Appellant.
Micheline Leffew was convicted of third-degree home invasion for committing the misdemeanor of malicious destruction of a building while breaking into a home, and her husband, Jeremiah Leffew, was convicted of first-degree home invasion for entering the home without permission and committing an assault against the homeowner after he entered. The defense theory at trial was that they entered the home to prevent the owner from confining and assaulting the longtime partner of Jeremiah’s mother, and that Jeremiah picked up a knife to stop the homeowner’s attack on him and his wife. Despite these defense theories, neither defense attorney requested a defense of others instruction. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether the common law affirmative defense of defense of others may be raised as a defense to the felony and misdemeanor charges against the defendants, see People v Dupree, 486 Mich 693 (2010); People v Triplett, 499 Mich 52 (2016), and whether trial defense counsels’ failure to request such an instruction deprived the defendants of the effective assistance of counsel, see Strickland v Washington, 466 US 668 (1984).
Tuesday, November 9, 2021
Afternoon Session – 12:30 p.m.
160958-9
Denishio Johnson (attorney, Daniel Korobkin), Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Kent CC – Quist, G.)
Curt Vanderkooi, Elliott Bargas (attorney, Elizabeth Fossel), and City of Grand Rapids, Defendants-Appellees.
—————
160959
Keyon Harrison (attorney, Daniel Korobkin), Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Kent CC – Quist, G.)
Curt Vanderkooi (attorney, Elizabeth Fossel) and City of Grand Rapids, Defendants-Appellees.
The Grand Rapids Police Department had a “photograph and print” (P&P) procedure, which gave officers discretion to photograph and fingerprint individuals they questioned in public when those individuals had no identification on them. The plaintiffs are two teenagers who were subjected to the P&P procedure during a pair of stops that did not result in arrests. They seek to hold the City of Grand Rapids (the City) liable under 42 USC § 1983 for adopting a policy that violated their rights under the Fourth Amendment. In each plaintiff’s case, the trial court granted summary disposition to the City. During the first round of appeals, the Court of Appeals affirmed each ruling. The court reasoned that because the P&P procedure was discretionary, the plaintiffs could not establish the existence of an official policy or custom—a key element of their municipal liability claim. After hearing oral argument on the application, the Supreme Court reversed that part of the Court of Appeals ruling and remanded the case to the Court of Appeals for a determination of whether the P&Ps at issue violated the plaintiffs’ Fourth Amendment rights. On remand, the Court of Appeals consolidated the cases and once again affirmed the trial court in a published opinion. The panel found the P&P procedure to be facially valid because neither photographing nor fingerprinting can be considered a search for purposes of the Fourth Amendment. The Supreme Court has granted leave to appeal to address: (1) whether fingerprinting constitutes a search for Fourth Amendment purposes; (2) if it does, whether fingerprinting based on no more than a reasonable suspicion of criminal activity, as authorized by the Grand Rapids Police Department’s “photograph and print” procedures, is unreasonable under the Fourth Amendment; and (3) whether fingerprinting exceeds the scope of a permissible seizure pursuant to Terry v Ohio, 392 US 1 (1968).
162434-5
In re Guardianship of Versalle, Minors.
—————
Barbara Versalle (attorney, Vivek Sankaran), Guardian, Petitioner-Appellee,
v
(Appeal from Ct of Appeals)
(Muskegon PC – Pittman, G.)
Adam Versalle (attorney, Kristen Wolfram) Respondent-Appellant.
After two minor children’s mother passed away, the respondent-father permitted the children to reside with their paternal grandmother during the school year for two consecutive school years. The respondent subsequently permitted the children to live with their grandmother year round, but did not give her any type of legal authority over them. Almost two years later, the grandmother petitioned to be appointed as the guardian of the two children under MCL 700.5204(2)(b). The probate court granted the petitioner temporary guardianship of both children. The respondent moved for relief from the guardianship order, arguing that the guardianship was unnecessary, as the children were, by that time, living with him. In lieu of ruling on the motion, the probate court held a full hearing on the guardianship petitions and awarded the petitioner care, custody, and control of the children. The respondent appealed the grant of guardianship in the Court of Appeals, challenging MCL 700.5204(2)(b) as unconstitutionally intruding into the parent-child relationship. The Court of Appeals, in a published opinion, affirmed the probate court’s order granting guardianship, finding the statute constitutional. The Supreme Court has ordered oral argument on the application to address: (1) whether MCL 700.5204(2)(b) is unconstitutional because it does not allow for a presumption that a fit parent’s decision is in the best interest of the child, see Troxel v Granville, 530 US 57 (2000); and (2) whether the Muskegon Probate Court erred by granting the petitioner guardianship in this case.
Wednesday, November 10, 2021
Morning Session – 9:30 a.m.
[Note: The first case, People v Pippen, will be heard remotely via Zoom and livestreamed from the MSC YouTube page.]
161723
People of the State of Michigan (attorney, Thomas Chambers), Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Wayne CC – Kenny, T.)
Roderick Louis Pippen (attorney, Katherine Marcuz), Defendant-Appellant.
The defendant was convicted by a jury of first-degree murder, felon in possession of a firearm, and felony-firearm. He moved for a new trial, arguing that defense counsel was ineffective for failing to investigate or present testimony from Michael Hudson, whom defendant believed would have impeached another witness’s testimony identifying the defendant as the individual who shot and killed the victim. Following an evidentiary hearing, the trial court found that the defendant had not established that defense counsel was ineffective. The Court of Appeals affirmed. Following oral argument on the application, the Supreme Court reversed the part of the Court of Appeals judgment holding that defense counsel’s performance was objectively reasonable, vacated the part of the Court of Appeals judgment holding that the defendant was not prejudiced by defense counsel’s performance, and remanded the case to the trial court for a determination whether, considering the totality of the evidence presented, there is a reasonable probability that the outcome of the trial was affected. On remand, the trial court once again denied the defendant’s request for a new trial. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether there is a reasonable probability that, but for trial defense counsel’s failure to investigate and present Michael Hudson’s testimony, the outcome of this trial would have been different. Strickland v Washington, 466 US 668, 694 (1984).
161865
Meemic Insurance Company (attorney, Michael Schmidt), Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Wayne CC – Gillis, J.)
Angela Jones (attorney, Jo Robin Davis), Defendant-Appellee.
After the defendant’s home was damaged by fire, she made a claim to the plaintiff, her insurance company. During its investigation, the plaintiff determined that the defendant misrepresented that she was living at the property when she submitted her insurance application. Consequently, the plaintiff declared the insurance policy void ab initio (at its inception) on the basis of a material misrepresentation. After declaring the policy void ab initio, the plaintiff paid the balance of the defendant’s mortgage under the policy’s standard mortgage clause. The plaintiff filed a lawsuit seeking to recover the amount paid to the defendant’s mortgagee, and the trial court granted summary disposition in favor of the plaintiff. But the Court of Appeals reversed in an unpublished opinion, concluding that the policy only gave the plaintiff the right to subrogation if it paid the mortgagee and refused to pay the defendant’s claim under the policy, as opposed to annulling the defendant’s rights under the policy. The Supreme Court has ordered oral argument on the application to address whether the plaintiff’s declaration that a homeowners insurance policy was void ab initio should be considered a denial of a claim under the policy such that it may invoke its right to subrogation when it was required by a standard mortgage clause to pay the balance of the defendant’s mortgage.
161396
People of the State of Michigan (attorney, Alena Clark), Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Genesee CC – Neithercut, G.)
Donald Wayne Davis, Jr. (attorney, Steven Helton), Defendant-Appellant.
The defendant was charged with first-degree murder and other crimes. On the second day of the defendant’s jury trial, it was revealed that the decedent’s girlfriend had approached a juror in the hallway and asked whether she worked at Hurley Hospital. After deciding not to hold the woman who spoke to the juror in contempt of court, the trial judge stated, “I’m going to bar everyone from this courthouse except for the mother of [the decedent]. The rest of you leave. Don’t you come back.” When asked whether his order pertained to the remainder of the trial, the judge clarified, “For the remainder of the trial, all the way into next week.” The jury convicted the defendant of first-degree murder and other crimes. The Court of Appeals, in a 2-1 published opinion, held that the defendant waived his right to a public trial because his attorney, at a post-conviction evidentiary hearing, testified that he intentionally did not object to the trial court’s statements because all of the spectators were seated in the “prosecutor’s side” of the courtroom. The Court of Appeals also held that, despite the trial court’s statements, the courtroom was not closed to the public because the courtroom doors remained unlocked, there was no sign on the courtroom door indicating that spectators were barred, and no court personnel prevented persons from entering the courtroom or removed persons from the courtroom. The Supreme Court has ordered oral argument on the application to address: (1) whether the defendant was denied his right to a public trial pursuant to US Const, Am VI, and Const 1963, art 1, § 20 where the Genesee Circuit Court stated that it was barring everyone, but the decedent’s mother, from the courtroom for the remainder of the trial and told others in the courtroom to leave and not return; (2) whether, despite the court’s statement, the courtroom remained open to the public because the courtroom door was unlocked, no sign was posted advising members of the public that the courtroom was closed, and court personnel did not prevent persons from entering the courtroom; (3) whether the defendant waived his right to a public trial; (4) whether trial counsel rendered ineffective assistance in failing to object; see Weaver v Massachusetts, 582 US ___; 137 S Ct 1899, 1913 (2017); and (5) whether the trial court committed plain error entitling the defendant to a new trial.
161628, 161650
161628
Mecosta County Medical Center (attorney, Joseph Gavin), d/b/a Spectrum Health Big Rapids, Spectrum Health Hospitals, Spectrum Health Primary Care Partners, d/b/a Spectrum Health Medical Group, Mary Free Bed Rehabilitation Hospital, and Mary Free Bed Medical Group, Plaintiffs-Appellees,
v
(Appeal from Ct of Appeals)
(Kent CC – Leiber, D.)
Metropolitan Group Property (attorney, Chrisdon Rossi) and Casualty Insurance Company, Defendant-Appellant, and State Farm Mutual Automobile Insurance Company (attorney, Jordan Weiner), Defendant-Appellee.
—————
161650
Mecosta County Medical Center (attorney, Joseph Gavin), d/b/a Spectrum Health Big Rapids, Spectrum Health Hospitals, Spectrum Health Primary Care Partners, d/b/a Spectrum Health Medical Group, Mary Free Bed Rehabilitation Hospital, and Mary Free Bed Medical Group, Plaintiffs-Appellees,
v
(Appeal from Ct of Appeals)
(Kent CC – Leiber, D.)
Metropolitan Group Property (attorney, Chrisdon Rossi) and Casualty Insurance Company, Defendant-Appellant, and State Farm Mutual Automobile Insurance Company (attorney, Jordan Weiner), Defendant-Appellant.
Jacob Myers was injured in a motor vehicle accident and sought no-fault personal protection insurance benefits from the defendant insurance companies. The plaintiffs are health care providers who provided care and treatment to Myers for injuries he sustained in the accident. Myers assigned to the plaintiffs his right to recover no-fault benefits for the care and treatment they provided. Myers filed a first-party no-fault action against the defendants in Wayne Circuit Court and the plaintiffs, through the assignments from Myers, filed a separate first-party no-fault action against the defendants in Kent Circuit Court (this case). The Wayne Circuit Court granted summary disposition in favor of both defendants, thus dismissing the lawsuit filed by Myers. The defendants then moved for summary disposition in Kent Circuit Court, arguing that the plaintiffs’ claims were barred by res judicata or collateral estoppel. The trial court granted summary disposition in favor of the defendants, but the Court of Appeals reversed in a 2-1 unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether the plaintiffs’ claims for no-fault personal protection insurance benefits are barred by (1) res judicata or (2) collateral estoppel. See Adair v Michigan, 470 Mich 105, 121 (2004); Monat v State Farm Ins Co, 469 Mich 679, 682-684 & n 2 (2004).
161655
Arthur Ormonde Price, Jr. (attorney, Heidi Tanner), Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Saginaw CC – Borrello, A.
Samuel Oneal Austin and L&B Cartage, Inc. (attorney, Ronald Sangster), d/b/a Omni Quality Inspection Services, Defendants-Appellees.
Defendant Samuel O’Neal Austin drove a semi-truck as an employee of defendant L&B Cartage, Inc. Austin claims that, while driving a semi-truck, he suffered a sudden coughing fit and blacked out. His vehicle crossed over the median and collided with the plaintiff’s vehicle, injuring both of them. The plaintiff filed suit in Saginaw Circuit Court, alleging negligence and gross negligence. The trial court granted the defendants’ motion for summary disposition under MCR 2.116(C)(10), finding that the sudden emergency doctrine relieved them of liability. The Court of Appeals affirmed in a 2-1 unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the trial court improperly assessed Austin’s credibility regarding the existence of a sudden emergency in granting summary disposition pursuant to MCR 2.116(C)(10), and (2) whether the sudden emergency doctrine is an application of the reasonably prudent person standard, not an affirmative defense, such that it may only be determined by a jury.
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