By Lee Dryden
BridgeTower Media Newswires
DETROIT - A recommended 30-day unpaid suspension and public censure for an Oakland County Circuit Court judge is among the cases set for oral arguments March 8-9 before the Michigan Supreme Court.
The Judicial Tenure Commission made the discipline recommendation in November based on Judge Lisa O. Gorcyca's actions toward three siblings in a custody battle.
The case involving Omer and Maya Tsimhoni drew national attention in 2015 for Gorcyca's reaction to the three children refusing to spend time with their father. They were sent to Oakland County Children's Village juvenile facility before being moved to a summer camp.
The misconduct count of the complaint states Gorcyca "failed to act in a patient, dignified, and courteous manner; displayed improper demeanor; used a raised and/or angry voice; laughed at the children and was sarcastic."
Gorcyca denied wrongdoing and alleged prosecutorial misconduct in a failed attempt to disqualify JTC staff from her case. In her answer to the complaint, Gorcyca acknowledged being frustrated and apologized for her behavior at some points. She filed a petition to reject or modify the recommended punishment.
The Supreme Court will hear Gorcyca's case on the morning of March 8.
Other cases before the high court this week include a defamation matter involving a television show, a "knock-and-talk" medical marijuana case and an attorney fees dispute related to memorabilia of hockey legend Gordie Howe.
Case summaries were provided on the Michigan Courts website.
March 8 morning session
Enbridge Energy Ltd Partnership v. UP Power Co
In December 2009, the Michigan Public Service Commission (PSC) approved a settlement that allowed the Upper Peninsula Power Company (UPPC) to use a "revenue decoupling mechanism" (RDM) to determine rates. Enbridge Energy Limited Partnership, a customer of UPPC that had not previously intervened in the case, filed a complaint with the PSC challenging the approval of the settlement. Oral arguments will address (1) whether the Court of Appeals erred in holding that the analysis provided in Dodge v. Detroit Trust Co, 300 Mich 575, 613 (1942), was relevant to the determination whether the PSC exceeded its statutory authority by approving a settlement agreement that included a RDM for an electric utility; (2) if Dodge applies, whether Enbridge was barred from arguing that the settlement agreement is unenforceable or void; and (3) whether Enbridge is procedurally barred from challenging the PSC's prior orders when it failed to intervene in the cases or appeal from the orders.
People v. Phillip Joseph Swift
Phillip Swift was convicted by a jury of unarmed robbery and first-degree home invasion. He was sentenced, as a third-offense habitual offender, to 12 to 40 years for the home invasion conviction and 12 to 30 years for the unarmed robbery conviction. Swift argues on appeal that the prosecution failed to provide him with proper notice of its intent to seek a sentence enhancement. Oral arguments will address (1) whether serving the habitual offender notice prior to the defendant's arraignment on the information satisfies the 21-day time requirement under MCL 769.13, and (2) if not, whether the harmless error rules apply to the failure to serve the habitual offender notice within the 21-day time requirement under MCL 769.13.
Employers Mut Casualty Co v. Helicon Assoc, Inc.
The plaintiff, Employers Mutual Casualty Company, issued an insurance policy to defendants Helicon Associates, Inc. and its principal owner and president, Michael J. Witucki. The defendants administered a charter school and were responsible for the issuance of $7 million in bonds on behalf of the school. The bonds were issued without legal authorization, and when they had to be reissued, the various funds that purchased those bonds lost approximately $4 million. The funds obtained compensation pursuant to a consent judgment in a federal suit, so Employers Mutual filed suit in state court seeking a declaratory judgment that it was not responsible for insurance coverage to defendants because, among other reasons, an exclusion for "fraud or dishonesty" applied. Oral arguments will address (1) whether the consent judgment amounts to a "judgment or adjudication ... based on a determination" of the insured's conduct [emphasis added]; and, if so, (2) whether it was a determination that acts of fraud or dishonesty were committed by the insured.
March 8 afternoon session
Nexteer Automotive Corp v. Mando America Corp
Nexteer Automotive and Mando America both manufacture steering systems. In 2013, they entered into an agreement that contained an arbitration agreement. Nexteer eventually sued Mando. A case management order included a checked box that indicated that "[a]n agreement to arbitrate this controversy ... exists" but "is not applicable." Mando subsequently requested arbitration of the dispute, contending that the checked box was not a waiver, and even if it was, Nexteer was not prejudiced by the late request to arbitrate. Oral arguments will address (1) whether a party asserting an express waiver of a right to arbitrate must demonstrate that it was prejudiced by the actions of the party asserting that right; and, if not, (2) whether the case management order in this case constituted an express waiver of the right of Mando to arbitrate.
Teddy 23, LLC v. Michigan Film Office
Plaintiff Teddy 23 attempted to obtain a Michigan film tax credit (under a now-repealed statute) of about $4.5 million based on about $10.7 million in expenditures on a movie project known as "Scar 23." After an audit by the Department of Treasury, the Michigan Film Office denied the request for a postproduction certificate of completion that Teddy 23 needed to qualify for the tax credit. Teddy 23 filed an appeal in both the Court of Claims and the Ingham Circuit Court. Oral arguments will address whether the Court of Claims had jurisdiction over Teddy 23's claim under MCL 600.6419(1)(a), or whether the circuit court had exclusive jurisdiction under MCL 600.631, including whether the denial of the postproduction certificate of completion was a "decision ... of [a] state board, commission, or agency, authorized under the laws of this state to promulgate rules from which an appeal or other judicial review has not otherwise been provided for by law ... ."
March 9 morning session
Keith Todd v. NBC Universal (MSNBC)
The defendant NBC Universal (MSNBC), aired an episode of the television series "Dash Cam Diaries" multiple times that erroneously listed the plaintiff, Keith Todd, as the perpetrator of a crime. (The actual perpetrator's name was Todd Keith.) Todd filed a complaint against MSNBC and two other defendants alleging defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence. Oral arguments will address (1) whether the erroneous statements contained in the television show aired by MSNBC must be considered in context with the pertinent facts and circumstances surrounding the statements, and, if so, whether the statements viewed in that context rise to the level of extreme and outrageous conduct; (2) whether the statements in question are protected by the First Amendment; and (3) whether Todd should have been permitted to amend his complaint.
People v. Michael Frederick to be heard with People v. Todd Van Doorne
Defendants Frederick and Van Doorne were corrections officers with the Kent County Sheriff's Department, and registered medical marijuana patients. After learning that Frederick and Van Doorne were marijuana patients, the Kent Area Narcotics Enforcement Team (KANET) went to their homes, without a search warrant. KANET arrived at Frederick's home at approximately 4 a.m. to conduct what is known as a "knock-and-talk," which means knocking on the door and asking to talk. Frederick permitted the group to enter and search his home, and told the officers where his "marijuana butter" was located. A similar series of events occurred at approximately 5:30 a.m. at Van Doorne's home. Both Frederick and Van Doorne were charged with marijuana offenses. Oral arguments will address (1) whether the knock-and-talk procedures employed by the law enforcement officers violated the general public's implied license to approach the defendants' residences and constituted unconstitutional searches in violation of the Fourth Amendment; (2) whether the conduct of the law enforcement officers "objectively reveals a purpose to conduct a search" to obtain evidence without the necessity of obtaining a warrant; and (3) whether the conduct of the law enforcement officers was coercive.
People v. William Lyles, Jr.
William Lyles, Jr. was prosecuted for committing a murder in 1983. He presented evidence at trial regarding his character for non-violence and peaceful domestic relationships. The trial court did not correctly instruct the jury regarding its consideration of this evidence. Oral arguments will address whether the trial court's error was sufficiently prejudicial to warrant a new trial.
Power Play International, Inc v. Del Reddy
Power Play International and Del Reddy entered into a settlement agreement after a commercial dispute over ownership of hockey memorabilia relating to hockey legend Gordie Howe. Power Play later sued Reddy for destroying that memorabilia in contravention of the agreement. The jury awarded Power Play $3 million in damages. Power Play then filed a post-judgment motion for attorney fees, pursuant to a provision in the settlement agreement. Oral arguments will address whether the trial court erred in awarding attorney fees following a post-judgment hearing rather than submitting the attorney fee issue to the jury.
Published: Tue, Mar 07, 2017
