The Michigan Supreme Court (MSC) will hear oral arguments in 12 cases on Wednesday, November 8, and Thursday, November 9, beginning at 9:30 a.m. on both days in the 6th floor courtroom at the Michigan Hall of Justice at 925 W. Ottawa, Lansing. Oral arguments 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, November 8,
Morning Session – 9:30 a.m.
164339
PEOPLE OF THE STATE OF MICHIGAN, (attorney Jacob Jenison)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Ottawa CC - Hulsing, J.)
TYLER ALLEN SALE, (attorney Timothy Doman)
Defendant-Appellant.
The defendant was charged with two counts of first-degree criminal sexual conduct and one count of assault with intent to commit sexual penetration. At trial, the defendant sought to introduce evidence that the complainant had previously made a false claim that her father had physically abused her. The trial court declined to admit the evidence, and the jury convicted the defendant of two counts of first-degree criminal sexual conduct. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the trial court erred by excluding extrinsic evidence related to a witness’s character for truthfulness or untruthfulness, see MRE 608(b); and (2) if so, whether the exclusion of the extrinsic evidence was more likely than not outcome determinative, see People v Douglas, 496 Mich 557 (2014); People v Armstrong, 490 Mich 281 (2011).
163664
YASER SAIDIZAND, (attorney Jonathan Marko)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Wayne CC- Hathaway, D.)
GOJET AIRLINES, LLC, and WILLIAM CLAY, (attorney Thomas Paxton)
Defendants-Appellees.
NOTE: This case is to be argued at same session as MSC No. 164750, Adilovic v Monroe LLC, and No. 163989, Rayford v American Home Roseville 1 LLC.
The plaintiff brought claims against his employer and a supervisor under the Elliot-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq., alleging that he was harassed, threatened, and discriminated against because of his ethnic background and religion. The defendants sought summary disposition under MCR 2.116(C)(7), citing a Mutual Arbitration Agreement signed by the plaintiff when he completed the application for his position as an aircraft maintenance technician. The agreement stated that he and GoJet Airlines agreed to resolve all claims arising out of the application, employment, or termination exclusively by arbitration. The trial court denied the defendants’ motion for summary disposition as to the plaintiff’s ELCRA claims. The Court of Appeals reversed in an unpublished opinion, holding that the trial court erred by determining whether the ELCRA claims were subject to arbitration because under the terms of the agreement the plaintiff and GoJet Airlines agreed that the arbitrator had the authority to determine whether the plaintiff’s claims were subject to arbitration. After holding the case in abeyance for McMillon v City of Kalamazoo (Docket No. 162680), the Supreme Court has ordered oral argument on the application to address whether discrimination claims under the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., may be subjected to mandatory arbitration as a condition of employment under Michigan law. Cf Rembert v Ryan’s Family Steak Houses, Inc, 235 Mich App 118 (1999), with Heurtebise v Reliable Business Computers, 452 Mich 405 (1996). The Supreme Court has directed the Clerk to schedule the oral argument in this case for the same future session of the Court when it will hear oral argument in Adilovic v Monroe LLC (Docket No. 164750) and Rayford v American House Roseville 1 LLC (Docket No. 163989).
164750
JASMIN ADILOVIC, (attorney Garrett Tenhave-Chapman)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Kent CC - Benson, K)
MONROE, LLC, (attorney Jeffrey Gerish)
Defendant-Appellee.
The plaintiff, during the course of his employment with the defendant, filed a claim for benefits under the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq. The plaintiff alleges that he filed the claim for benefits under the WDCA on April 27, 2017, and the defendant terminated his employment on May 8, 2017. Two years and 361 days after he was terminated, he filed a lawsuit alleging that he was wrongfully terminated from his employment in retaliation for requesting benefits under the WDCA. The defendant filed a motion for summary disposition under MCR 2.116(C)(7) and (C)(10), arguing that the plaintiff’s claim was time-barred. When the plaintiff was hired, he submitted an application and signed a supplement acknowledging the terms and conditions of his employment. The supplement limited any claim or lawsuit to be filed no more than six months after the date of the challenged employment action and further provided that there was a free and knowing waiver of any statute of limitations to the contrary. The trial court granted summary disposition in favor of the defendant and dismissed the plaintiff’s lawsuit, concluding that the six-month period of limitations was enforceable. The Court of Appeals affirmed the trial court in an unpublished opinion, citing Timko v Oakwood Custom Coating, Inc, 244 Mich App 234 (2001). The Supreme Court has ordered oral argument on the application to address: (1) whether Timko v Oakwood Custom Coating, Inc, 244 Mich App 234 (2001), correctly held that limitations clauses in employment applications are part of the binding employment contract; and (2) whether contractual limitations clauses that restrict retaliation claims under the Michigan Worker’s Disability Compensation Act, MCL 418.101 et seq., violate public policy. The Supreme Court has directed the Clerk to schedule the oral argument in Rayford v American House Roseville I, LLC (Docket No. 163989) and Saidizand v GoJet Airlines, LLC (Docket No. 163664) for the same future session of the Court when it will hear oral argument in this case.
163989
TIMIKA RAYFORD, (attorney Carla Aikens)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Macomb CC - Servitto, M.)
AMERICAN HOUSE ROSEVILLE I, LLC, d/b/a AMERICAN HOUSE EAST I, d/b/a AMERICAN HOUSE, (attorney William Thomas)
Defendant-Appellee.
NOTE: The case is to be argued at same session as MSC No. 164750, Adilovic v Monroe LLC, and No. 163664, Saidizand v GoJet Airlines.
The plaintiff is a certified nursing assistant who was hired to work at a nursing care facility run by the defendant. The defendant terminated the plaintiff’s employment, claiming that she made a false police report about her purse being stolen from the facility. The plaintiff claims that the alleged false police report was a pretext and that the defendant terminated her employment to retaliate against her for reporting to human resources and the state about inappropriate sexual behavior between the defendant’s upper management and other nursing assistants. Nearly three years after her termination, the plaintiff filed a lawsuit alleging civil rights violations, wrongful discharge, malicious prosecution, and abuse of process. The trial court granted the defendant’s motion for summary disposition and dismissed the lawsuit with prejudice, holding that all claims arising out of her employment were barred by a contractual six-month limitations period contained within an employee handbook acknowledgment that she signed early in her employment, and further holding that the plaintiff failed to state a claim for abuse of process. The Court of Appeals affirmed in an unpublished opinion. The plaintiff filed an application for leave to appeal in the Supreme Court, arguing, among other things, that the contractually shortened limitations period is invalid and that an employer should not be able to contractually limit an employee’s time to bring a civil rights claim. After holding the case in abeyance for McMillon v City of Kalamazoo (Docket No. 162680), the Supreme Court has ordered oral argument on the application to address whether Timko v Oakwood Custom Coating, Inc, 244 Mich App 234 (2001), correctly held that contractual limitations clauses which restrict civil rights claims do not violate public policy. See, e.g., Rodriguez v Raymours Furniture Co, Inc, 225 NJ 343 (2016). The Supreme Court has directed the Clerk to schedule the oral argument in this case for the same future session of the Court when it will hear oral argument in Adilovic v Monroe LLC (Docket No. 164750) and Saidizand v GoJet Airlines, LLC (Docket No. 163664).
164158
DAOUD MOUSA JANINI and FERYAL JANINI, (attorney Howard Radner)
Plaintiffs-Appellants,
v
(Appeal from Ct of Appeals)
(Wayne CC - Hathaway, D.)
LONDON TOWNHOUSES CONDOMINIUM ASSOCIATION, (attorney Nathan Scherbarth)
Defendant-Appellee,
and
JAMES PYDA,
Defendant.
The plaintiffs sued London Townhouses Condominium Association for injuries sustained by Daoud Mousa Janini when he fell on an allegedly snow- and ice-covered sidewalk in the defendant’s development. The plaintiffs own and reside in a condominium unit that is part of the defendant’s condominium complex. The defendant is an association of the co-owners of the condominiums in the complex that manages and operates the condominium complex on behalf of the owners. The defendant is responsible for the management, maintenance, and administration of the common elements of the condominium complex, including the sidewalks and parking lot. The defendant filed a motion for summary disposition, which the trial court granted in part and denied in part. The trial court dismissed all of the plaintiffs’ claims except their premises liability claim. The Court of Appeals, in an unpublished per curiam opinion, followed Francescutti v Fox Chase Condo Ass’n, 312 Mich App 640 (2015), and reversed the trial court’s order denying summary disposition of the plaintiffs’ premises liability claim. The Supreme Court has ordered oral argument on the application to address whether the Court of Appeals correctly held in Francescutti that a co-owner of a condominium unit, who slipped and fell on an icy, snow-covered sidewalk located in a common area of the development, was neither a licensee nor an invitee, and thus, there was no duty owed to the co-owner by the condominium association under the principles of premises liability.
Wednesday, November 8, 2023
Afternoon Session – 12:30 p.m.
164317
OLIVER RAVENELL,
Plaintiff,
and
NGM INSURANCE COMPANY, (attorney Mark Rajt)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Wayne CC - Gillis, J.)
AUTO CLUB INSURANCE ASSOCIATION, (attorney Daniel Saylor)
Defendant-Appellant.
Oliver Ravenell was struck by a car driven by Thaddeus Stec. Ravenell filed a claim for personal protection insurance (PIP) benefits with NGM Insurance Company, which was the commercial-automobile insurer of three vehicles listed on a policy issued by NGM to Omega Appraisals, LLC, a company for which Ravenell’s wife was the resident agent. NGM paid in excess of $331,000 in PIP benefits to and on behalf of Ravenell. Eventually, however, NGM took the position that Ravenell was not covered by the policy that it issued to Omega because Ravenell and his wife were not listed in the policy as named insureds. NGM further took the position that Auto Club Insurance Association (ACIA), as Stec’s insurer, was responsible for paying PIP benefits to Ravenell. NGM filed a lawsuit against ACIA, seeking reimbursement of the PIP benefits it paid to Ravenell. NGM and ACIA both moved for summary disposition. The trial court granted summary disposition in favor of NGM and entered a judgment against ACIA in the amount of $182,112.64. The Court of Appeals, in an unpublished opinion, reversed and remanded the case to the trial court for entry of summary disposition in favor of ACIA. The Supreme Court vacated the judgment of the Court of Appeals and remanded the case to the Court of Appeals for reconsideration in light of Esurance Prop & Cas Ins Co v Mich Assigned Claims Plan, 507 Mich 498 (2021). On remand, the Court of Appeals, in an unpublished opinion, affirmed the trial court’s orders granting summary disposition in favor of NGM and denying ACIA’s motion for summary disposition. The Supreme Court has ordered oral argument on the application to address the extent to which the reasonableness of an insurer’s mistaken belief that it was required to pay a claim is a factor in determining whether the insurer is entitled to equitable subrogation. See Esurance Prop & Cas Ins Co v Mich Assigned Claims Plan, 507 Mich 498 (2021); see also 83 CJS, Subrogation, § 43 (“Equitable subrogation will not be used to benefit parties who were negligent in their business transactions, or who failed to act according to ordinary and reasonable business practices and who were obviously in the best position to protect their own interests.”); 73 Am Jur 2d, Subrogation, § 17 (“One charged with culpable negligence may not be entitled to equitable subrogation. . . . Ordinary negligence may be taken into consideration in determining whether the negligent party is entitled to subrogation, but ordinary negligence alone is not a complete bar to subrogation where, in spite of such negligence, the equities are still in favor of the subrogee.”).
164435-6
MICHIGAN AFSCME COUNCIL 25 and AFFILIATED LOCAL 101, (attorney Bruce Miller)
Plaintiffs-Appellants,
v
(Appeal from Ct of Appeals)
(Wayne CC - Ewell, E)
COUNTY OF WAYNE, (attorney Bruce Campbell)
Defendant/Third-Party Plaintiff-Appellee,
and
VICTOR PLESA,
Third-Party Defendant.
—————
MICHIGAN AFSCME COUNCIL 25 and AFFILIATED LOCAL 101,
Plaintiffs,
v
(Appeal from Ct of Appeals)
(Wayne CC - Ewell, E)
COUNTY OF WAYNE, (attorney Bruce Campbell)
Defendant/Third-Party Plaintiff-Appellee,
and
VICTOR PLESA, (attorney Bruce Miller)
Third-Party Defendant-Appellant.
Victor Plesa was employed by defendant Wayne County and applied for retirement while awaiting the outcome of a disciplinary action initiated by the defendant. As part of his retirement application, he signed a document indicating that he was terminating his employment. The day after he signed that document, the defendant terminated his employment as a result of the disciplinary action. Plesa filed a grievance seeking reinstatement. While his grievance was pending, his retirement was approved, and he withdrew his retirement funds. Subsequently, an arbitrator ruled in his favor and ordered him to be reinstated. The arbitrator later issued a second award clarifying issues regarding the dates of the suspension and back pay. Plaintiffs Michigan AFSCME Council 25 and Affiliated Local 101 filed this action to enforce the arbitration awards. The defendant filed a complaint against Plesa seeking to vacate the arbitration awards. The trial court granted the defendant’s motion for summary disposition and vacated the arbitration awards. 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 standard set forth in Detroit Auto Inter-Ins Exch v Gavin, 416 Mich 407 (1982), applies to labor arbitration cases, see Bay City Sch Dist v Bay City Ed Ass’n, Inc, 425 Mich 426, 440 n 20 (1986), and Port Huron Area Sch Dist v Port Huron Ed Ass’n, 426 Mich 143, 150 (1986); and (2) whether the trial court erred in vacating the arbitrator’s awards in this case.
Thursday, November 9, 2023
Morning Session – 9:30 a.m.
164862
RICHARD MILLER, BRENDA MILLER, and BRENT WHITMAN, (attorney Jonathan Marko)
Plaintiffs-Appellants,
v
(Appeal from Ct of Appeals)
(Genesee CC - Newblatt, D.)
DEPARTMENT OF CORRECTIONS, (attorney Kendell Asbenson)
Defendant-Appellee.
The plaintiffs allege that the defendant terminated their employment because the defendant wanted to retaliate against their close friend and co-worker for complaining about the sexual harassment of his wife, who was also the defendant’s employee. The plaintiffs filed a lawsuit claiming, among other things, retaliation in violation of MCL 37.2701(a) of the Elliott-Larsen Civil Rights Act (ELCRA). The defendant filed a motion for summary disposition, which the trial court denied, reasoning that third-party retaliation claims are permitted under MCL 37.2701(a). The Court of Appeals, in a published opinion, reversed the trial court’s order and remanded the case to the trial court to allow the plaintiffs an opportunity to amend their complaint. The Court of Appeals concluded that although the ELCRA allows third-party retaliation claims, the basis for such claims arises in MCL 37.2701(f), which requires an affirmative act on the part of the third party, and not subsection (a), which is based on the relationship status of the parties. The Supreme Court has granted leave to appeal to address: (1) whether the Elliott-Larsen Civil Rights Act, MCL 37.2201 et seq., establishes a right to recover for third-party retaliation claims; and (2) if so, whether the basis for that right is found in MCL 37.2701(a) or MCL 37.2701(f).
165279
ANDREW PAUL SABATINE, (attorney Jordan Ahlers)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Leelanau CC - Kromkowski, M.)
COLLEEN KNECHT SABATINE, (attorney Anne Argiroff)
Defendant-Appellant.
The parties have two children, born in 2015 and 2018. In 2020, the defendant-mother left the marital home in Leelanau County with the children and moved to Fenton. Divorce proceedings took place in Leelanau County, and the plaintiff-father unsuccessfully attempted to have the children returned. He was granted parenting time every other weekend on a temporary basis, which the Friend of the Court referee recommended be continued after an evidentiary hearing. On objection from that recommendation, the trial court granted the plaintiff-father an additional weekend of parenting time per month to be exercised in Fenton. A contested judgment of divorce entered, and the trial court incorporated the temporary parenting time arrangement as the final schedule. The trial court concluded that the children had established custodial environments with both parents, that the parenting time arrangement would not upset those environments, and that the schedule was in the children’s best interests by a preponderance of the evidence. The Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings in an unpublished opinion, holding that the trial court erred by concluding that the children’s established custodial environments were not disrupted by the parenting time schedule. The Supreme Court has ordered oral argument on the application to address: (1) whether the Leelanau Circuit Court and the Court of Appeals correctly determined that the children have an established custodial environment with each parent, see Baker v Baker, 411 Mich 567 (1981); Rains v Rains, 301 Mich App 313 (2013); (2) whether the parenting-time terms incorporated into the judgment of divorce altered a potential established custodial environment, see Pierron v Pierron, 486 Mich 81 (2010); (3) whether the Court of Appeals remand instructions are sufficiently clear to guide the circuit court on remand as to what evidentiary burden it must apply, see Griffin v Griffin, 323 Mich App 110, 128 (2018); but see Butters v Butters, 510 Mich 1096 (2022); and (4) whether in an initial judgment of divorce, a court should consider the circumstances of the parties at the time of separation or prior to their separation to determine the child’s established custodial environment, see Bofysil v Bofysil, 332 Mich App 232, 246 (2020).
164307
PEOPLE OF THE STATE OF MICHIGAN, (attorney Jennifer Raucci)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Calhoun CC - Hallacy, J.)
MARQUIS DEANGELO NELSON, (attorney Michael Mittlestat
Defendant-Appellant.
After receiving a tip about narcotics activity, two police officers – Officer Mikael Ziegler and Sergeant Kurt Roth – surveilled a vehicle driven by the defendant. The officers followed the vehicle and observed the vehicle occasionally change directions and make a series of short stops at various apartment complexes and residences. According to the police officers, at one point Joshua Blount approached the defendant’s vehicle and the officers observed hand movements between the two men. Police officers subsequently conducted a pair of traffic stops and searched each man’s vehicle. Nothing of interest was found in the defendant’s vehicle. But according to the police officers, Blount had a mixture of heroin and fentanyl on his person, which he claimed to have purchased from the defendant. At trial, Officer Ziegler and Sergeant Roth conceded that they could not see anything in either man’s hands, but they nevertheless opined that the defendant and Blount had engaged in a hand-to-hand drug transaction. Sergeant Roth was not qualified as an expert, but Officer Ziegler was qualified as an expert in drug trafficking, and he opined that the defendant’s frequent stops and evasive driving were consistent with selling drugs. A jury found the defendant guilty of delivering less than 50 grams of heroin and the trial court sentenced him as a fourth-offense habitual offender to a prison term of 46 months to 25 years. The Court of Appeals affirmed in a 2-1 unpublished opinion. The majority agreed with the defendant that Officer Ziegler’s testimony went beyond the scope of permissible drug profile testimony by directly opining on the defendant’s guilt despite not seeing him exchange anything with the alleged buyer. The majority also found that defense counsel performed deficiently by failing to object. But the majority held that the trial court’s plain error did not affect the outcome and that the defendant suffered no prejudice from defense counsel’s failure to object. The Supreme Court has ordered oral argument on the application to address: (1) whether the Court of Appeals correctly held that only Officer Mikael Ziegler exceeded the scope of permissible drug profile testimony, and that Sergeant Kurt Roth did not; and (2) whether the Court of Appeals correctly applied the prejudice prongs of the analyses for plain error, see People v Carines, 460 Mich 750, 763-764 (1999), and ineffective assistance of counsel, see Strickland v Washington, 466 US 668, 694-695 (1984).
—10-minute break—
164520-1
PEOPLE OF THE STATE OF MICHIGAN, (attorney Jillian Sadler)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Chippewa CC - Lambros, J.)
SETH VINCENT HORTON, (attorney Timothy Doman)
Defendant-Appellant.
The defendant is awaiting trial on two counts of first-degree criminal sexual conduct. Before trial, the complainant was killed in an automobile accident unrelated to the charges against the defendant. The trial court held in a pretrial ruling that the prosecution can play a recording of the complainant’s preliminary examination testimony at trial, despite the defendant’s challenge that the recording undermines the presumption of innocence because it shows him dressed in jail garb. The prosecution wants to play the recording so jurors can see the complainant’s demeanor while testifying. The Court of Appeals affirmed the trial court in a published opinion. The Supreme Court has ordered oral argument on the application to address whether the trial court abused its discretion in ruling that a video recording of the preliminary examination is admissible at trial, despite the fact that the defendant is depicted in the recording dressed in jail garb.
164638-9
PEOPLE OF THE STATE OF MICHIGAN, (attorney Richard Cunningham)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Wayne CC - Van Houten, M.)
JOHN MACAULEY BURKMAN, (attorney Scott Grabel)
Defendant-Appellant.
—————
PEOPLE OF THE STATE OF MICHIGAN, (attorney Richard Cunningham)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Wayne CC - Van Houten, M.)
JACOB ALEXANDER WOHL, (attorney William Amadeo
Defendant-Appellant.
The defendants allegedly created and disseminated a robocall that was intended to deter African Americans from participating in mail-in voting in the 2020 general election. The prosecution charged the defendants with attempting to influence, deter, or interrupt electors under MCL 168.932(a), conspiracy to commit that offense, and two counts of using a computer to commit a crime. Following a preliminary examination, the district court bound the defendants over to circuit court on all the charges. The circuit court denied the defendants’ motions to quash and dismiss the charges. The Court of Appeals denied leave to appeal in each case, but the Supreme Court remanded both cases to the Court of Appeals for consideration as on leave granted. On remand, the Court of Appeals consolidated the cases and, in a published opinion, affirmed. The Supreme Court has granted leave to appeal to address: (1) whether the Court of Appeals properly interpreted MCL 168.932(a); and (2) whether MCL 168.932(a) is unconstitutional on its face or as applied to the defendants.
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