MSC kicks off new term Oct. 11-12 with oral arguments

By Lee Dryden
BridgeTower Media Newswires

DETROIT - Parental disagreements over where children should attend school are among the cases set for oral arguments Oct. 11-12 before the Michigan Supreme Court in the first sessions of the new term.

The Michigan Court of Appeals and family law practitioners have called for clarity on the matter. Two similar cases will be argued together in the Oct. 11 afternoon session - Ozimek v Rodgers and Marik v Marik.

In Ozimek, the Court of Appeals ruled that "an order denying a motion to change schools is not an order affecting the custody of a minor within the meaning of MCR 7.202(6)(a)(iii)." The claim was dismissed for a lack of jurisdiction.

The plaintiff argued that the order denying her motion to change the child's school district was appealable as a matter of right as an order affecting the custody of a minor.

Marik is a similar case that was appealed on the same grounds.

In both cases, the high court called for briefs to be submitted on whether a court order denying a parent's request for their child to change schools was "a postjudgment order affecting the custody of a minor" and therefore a "final order" under MCR 7.202(6)(a)(iii).

Per tradition, arguments for the first case of the new term, People v Boban Temelkoski, will be held in the old Supreme Court courtroom, located on the third floor of the state Capitol. That case is set for 9:30 a.m. Oct. 11.

The other cases will be argued in the Supreme Court courtroom on the sixth floor of the Hall of Justice, 925 W. Ottawa St. in Lansing, beginning at about 11:15 a.m. Oct. 11 and continuing on Oct. 12.

Cases are summarized with information from the Michigan Courts website. The court also will address the question of juvenile offenders being sentenced to life without parole and the case of a man who shot and killed a woman at his front door.

Oct. 11 morning session

People v Boban Temelkoski

In 1993, the 19-year-old defendant committed second-degree criminal sexual conduct. He pled guilty to the offense under the Holmes Youthful Trainee Act (HYTA). While the defendant was still on probation in 1995, the Legislature enacted the Sex Offenders Registration Act (SORA), which required a defendant convicted of second-degree criminal sexual conduct to register with the police for 25 years. That registration later became public. The Legislature subsequently imposed additional requirements on registered offenders and, in 2011, required lifetime registration for certain offenders, including the defendant. The defendant seeks removal from the registry. Oral arguments will address: (1) whether this case should be held in abeyance pending final action by the United States Supreme Court in Does #1-5 v Snyder (2016); (2) whether a criminal defendant is denied due process of law if a statute offers a benefit in exchange for pleading guilty, the defendant's plea is induced by the expectation of that benefit, but the benefit is vitiated in whole or in part; and (3) whether the Wayne Circuit Court had jurisdiction over the defendant's SORA claim.

Shelby Twp. v Command Officers Assn of MI

In 2011, the Legislature enacted the Publicly Funded Health Insurance Contribution Act, 2011 PA 152, allowing public employers to choose from three options for the payment of health insurance benefits to their employees and elected officials: (1) a hard cap on monies spent by the employer; (2) an 80 percent/20 percent split between the employer and the employees; or (3) an opt-out of the spending limits entirely by a two-thirds vote of the governing body. The issue in this case concerns the second option, which provides that "[t]he public employer may allocate the employees' share of total annual costs of the medical benefit plans among the employees of the public employer as it sees fit." The Michigan Employment Relations Commission (MERC) held that allocation of costs under this provision is subject to mandatory collective bargaining under the Public Employee Relations Act (PERA). Oral arguments will address: Is calculation and/or allocation of employee contributions a mandatory subject of collective bargaining? Does the MERC have the authority to interpret the health insurance act, and, if so, to what extent? Can the MERC preclude a public employer's use of illustrative insurance rates that include retiree health insurance costs when the Department of Treasury allows such use?

Oct. 11 afternoon session

Jessica A. Dillon v State Farm Mutual

In 2008, the plaintiff was hit by a car while walking across a street. She was treated at a hospital for abrasions and pain in her left shoulder and lower back. A family member verbally reported the injury to an insurance agent who reported it to the plaintiff's no-fault insurer, defendant State Farm. In 2012, the plaintiff had surgery to repair her left hip. She sought no-fault benefits, claiming that the hip injury was related to the car accident. State Farm denied benefits, asserting that, because the plaintiff had not submitted written notice of her injury within one year of the accident and never advised of a hip injury, the claim was time-barred under the no-fault act, MCL 500.3145. After the circuit court denied State Farm's motion for summary disposition, a jury found in favor of the plaintiff and awarded damages. The Court of Appeals affirmed, holding that the plaintiff's notice was sufficient under MCL 500.3145, but the appeals court did not address whether the plaintiff had provided notice in writing. Oral arguments will address the extent to which an injury must be described to provide notice under MCL 500.3145, and, in this case, whether the plaintiff or someone on her behalf provided written notice under MCL 500.3145.

Oct. 12 morning session

People v Tia Marie-Mitchell Skinner; People v Kenya Ali Hyatt

These two cases concern the sentencing of juvenile offenders who have been convicted of first-degree murder under MCL 769.25. The cases will be argued together.

In Skinner, the 17-year-old defendant enlisted friends to kill her parents, and they succeeded in killing one of them. The defendant was convicted of first-degree premeditated murder and sentenced to mandatory life without parole. After the U.S. Supreme Court held in Miller v Alabama (2012) that a mandatory sentencing scheme of life in prison without the possibility of parole for juvenile offenders is unconstitutional, the Michigan Legislature enacted MCL 769.25, providing for a term of years for juveniles who commit first-degree murder (or certain other offenses), unless the prosecution files a motion seeking life without parole, and the trial court holds a hearing. In this case, following a hearing, the defendant was resentenced to life without parole, over defense objection that this decision could only be made by a jury under Apprendi v New Jersey (2000), in light of Montgomery v Louisiana (2016), and Miller v Alabama. In a split decision, the Court of Appeals agreed with the defendant and remanded for resentencing before a jury. Oral arguments will address whether the decision to sentence a juvenile to life without parole under MCL 769.25 must be made by a jury beyond a reasonable doubt.

In Hyatt, the 17-year-old defendant helped family members to carry out a plan to rob a security guard of his firearm. During the robbery, the guard was fatally shot. The defendant was convicted of first-degree felony murder and, after a hearing on the prosecutor's motion, the trial court sentenced him to life without parole under MCL 769.25. The Court of Appeals held that it was bound to follow People v Skinner (2015), but declared a conflict, expressing its opinion that a jury need not make the sentencing decision. Subsequently, the Court of Appeals convened a conflict-resolution panel, which unanimously agreed that no jury is needed. However, a four-judge majority of the conflict panel nevertheless ordered resentencing, believing that the trial court had erred by failing to decide whether the defendant exhibited "irreparable corruption" so as to deserve life without parole. Oral arguments will address whether the Court of Appeals conflict-resolution panel erred by applying a heightened standard of consideration and review for sentences imposed under MCL 769.25.

NL Ventures v City of Livonia

The plaintiff leased property to a company that later went bankrupt. Over time, the company had accrued significant water and sewer charges owed to the defendant city. The city eventually placed approximately $900,000 of unpaid water and sewer charges on the ad valorem tax roll as liens against the plaintiff's property and sent a tax bill to the plaintiff. The plaintiff filed suit against the city, alleging that the liens were not enforceable because the city failed to comply with its own water rate ordinance. Oral arguments will address the following questions: Does 1939 PA 178, MCL 123.161 et seq., which governs municipal water and sewage liens, or the Revenue Bond Act of 1933, MCL 141.101 et seq., or any other statute authorize the method by which the city sought to enforce collection of the disputed liens? If so, is the city prohibited from collecting the disputed liens because it failed to place them on the tax roll each year as required by Livonia Ordinance, § 13.08.300?

Oct. 12 afternoon session

Menard, Inc v City of Escanaba

Menard owns a freestanding "big box" retail store in the City of Escanaba. In determining the property's "true cash value" for purposes of property tax assessment, the city valued the property at about $8 million, based on a cost approach. Menard challenged the assessment and presented an expert appraiser who valued the property at about $3.3 million, based largely on a sales-comparison approach. The Michigan Tax Tribunal (MTT) rejected the city's valuation and accepted Menard's valuation with minor adjustments. The Court of Appeals reversed and remanded. Oral arguments will address whether the Court of Appeals exceeded its limited appellate review of a decision of the MTT, and, if so, whether the MTT may utilize a valuation approach similar to that recognized in Clark Equipment Company v Leoni Twp (1982).

People v Theodore Paul Wafer

In the early morning hours of Nov. 2, 2013, 19-year-old Renisha McBride appeared at the defendant's Dearborn Heights home a few hours after being involved in a car accident. She pounded on the doors of the home - alternating between the front and side doors. The defendant woke up startled and retrieved a firearm he kept in his home. He would later tell the police that, when he opened the front door, McBride ran at him and he discharged his weapon, killing her. He called 911. In speaking with the police, the defendant gave inconsistent versions of the incident. At a trial on charges of second-degree murder, statutory manslaughter, and felony-firearm, the defendant claimed that he acted in self-defense, believing that someone was trying to break into his home. The jury found the defendant guilty of all charges. The Court of Appeals, in a split decision, affirmed. Oral arguments will address whether the trial court erred by denying the defense request for a jury instruction on the rebuttable presumption of MCL 780.951, which applies when a defendant uses deadly force against an individual who is in the process of breaking into the defendant's dwelling, and, if there was instructional error, whether it was harmless.

People v Roderick Louis Pippen

The defendant was arrested in 2008 after a police officer observed him and another man (Michael Hudson) both throw guns under a vehicle. It was later determined that the gun thrown by the defendant had been used during a carjacking in which the victim was fatally shot. The defendant was bound over to circuit court in 2010 on charges of first-degree felony murder, felon in possession of a firearm, and felony-firearm, but the circuit court granted his motion to dismiss the charges, finding that there was insufficient evidence presented to support the bindover. In 2011, the Court of Appeals reversed and remanded for further proceedings, concluding that the evidence established probable cause to believe that the defendant committed the charged crimes. Oral arguments will address whether the defendant was denied the effective assistance of counsel based on trial counsel's failure to adequately investigate and present the testimony of a witness who was present at the time of the alleged offense.

Published: Tue, Oct 10, 2017