By Lee Dryden
BridgeTower Media Newswires
DETROIT — Cases involving the failure to obtain medical treatment for a child due to religious beliefs, amending a medical malpractice complaint, and the interplay of the Adoption Code and the Paternity Act will be heard by the Michigan Supreme Court during April oral arguments.
The high court will convene to hear the cases on the sixth floor of the Hall of Justice, 925 W. Ottawa St. in Lansing. Arguments will begin at 9:30 a.m. April 10-11.
Oral arguments are broadcast live at goo.gl/MFtDR8.
April 10 morning session:
In re Piland, Minors; Genesee County Drain Commissioner v. Genesee County; People v. Pierson; Paquin v. City of St. Ignace; Kostadinovski v. Harrington.
April 10 afternoon session:
In re MGR, Minor; In re LMB, Minor.
April 11 morning session:
People v. Thorpe; People v. Harbison; Wigfall v. City of Detroit; West v. City of Detroit; People v. McBurrows.
Information about select cases below is from case summaries provided by the Michigan Courts. See goo.gl/9RC1yu for details about all cases.
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April 10 morning session
• In re Piland, Minors
In this child-protective proceeding, respondents’ 3-day-old daughter died from jaundice, after they refused, purportedly on the basis of religious beliefs, to obtain medical treatment for her. The family court scheduled a jury trial to determine whether to take jurisdiction over respondents’ two minor sons.
Respondents requested that the jury be instructed, pursuant to MCL 722.634, which states: “A parent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be considered a negligent parent or guardian.” The family court denied the request.
In a split published opinion, the Court of Appeals majority agreed with respondents that MCL 722.634 was applicable to child-protective proceedings and that the trial court was required to give the instruction. The dissenting judge agreed that the statute was applicable, but disagreed that the trial court was required to give the instruction.
The Supreme Court has directed oral argument on petitioner Department of Health and Human Services’ application for leave to appeal to address: (1) whether respondents are entitled to a jury instruction based on MCL 722.634; and (2) for purposes of this determination, the distinction, if any, between the terms “neglects” and “refuses” in MCL 712A.2(b)(1), where the family court’s jurisdiction is sought on the basis of the parents’ failure to obtain medical care for a child.
• Paquin v. City of St. Ignace
A state constitutional provision makes a person ineligible to run for public office if he or she was previously convicted of a felony involving fraud while “holding any elective office or position of employment in local, state, or federal government.” Const 1963, art 11, § 8.
Plaintiff was convicted in federal court of conspiring to defraud the federal government, arising out of the misuse of grant funds while he served as the chief of police and chairperson of the board of directors of a federally recognized Indian tribe. Plaintiff later tried to run for defendant’s city council, but the city manager denied his request to be placed on the ballot, stating that plaintiff was ineligible under Const 1963, art 11, § 8.
Plaintiff filed a declaratory judgment action, seeking a ruling that the constitutional disqualification did not apply to him because his elective office or position of employment had been in a tribal government, not a “local, state, or federal government.” The trial court ruled in favor of defendant city.
In a published opinion, the Court of Appeals affirmed, holding that plaintiff’s service in tribal government constituted service in “local government” for purposes of § 8. The Supreme Court has directed oral argument on plaintiff’s application for leave to appeal to address whether plaintiff’s holding elective office with and being employed by an Indian tribe constitutes “any elective office or position of employment in local, state, or federal government” under Const 1963, art 11, § 8.
• Kostadinovski v. Harrington
Pursuant to MCL 600.2912b, “a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.”
The written notice of intent (NOI) shall contain (among other things) a statement of the factual basis for the claim, the standard of care, how it was breached, the action that should have been taken, and how the breach proximately caused the injury claimed in the notice.
Plaintiffs sent defendant Dr. Steven Harrington a NOI alleging multiple breaches of the standard of care. As discovery proceeded, plaintiffs acknowledged that the allegations in their NOI did not prove to be valid, but they sought to amend their complaint to raise an additional alleged breach that they had discovered. The trial court denied their motion to amend as futile, reasoning that the new theory was not in the NOI and that the proposed amendment would bypass the statutory requirements for filing a medical malpractice claim.
In a published opinion, the Court of Appeals reversed in light of Bush v. Shabahang, 484 Mich 156 (2009), and remanded the case to the trial court for consideration of MCL 600.2301 to determine whether it would be appropriate to allow plaintiffs to amend their NOI.
The Supreme Court has directed oral argument on defendants’ application for leave to appeal and plaintiffs’ application for leave to cross appeal to address whether and how, consistent with MCL 600.2912b, a plaintiff in a medical malpractice case may amend the complaint to include newly discovered claims against an existing defendant.
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April 10 afternoon session
• In re MGR, Minor
This case concerns the interplay of the Adoption Code and the Paternity Act. The birth parents had a brief domestic relationship that resulted in the birth of the subject child in 2016. Before the child’s birth, the mother had arranged for the child’s adoption, but appellee, the then-putative father, opposed adoption.
After the child’s birth, appellee filed a paternity action. At one point, the circuit court stayed the adoption proceeding to allow the paternity case to proceed, but the Court of Appeals directed that a hearing under Section 39 of the Adoption Code, MCL 710.39, be conducted. The circuit court found that appellee qualified as a “do something father” under Section 39(2), MCL 710.39(2), and that his parental rights should not be terminated. Meanwhile, in the paternity proceeding, appellee was found to be the biological father of the child, and an order of filiation entered. Appellants, the prospective adoptive parents, who have had custody of the child since birth, appealed the circuit court’s decisions in the adoption.
In a published opinion, the Court of Appeals held that appellants’ challenge to the circuit court’s stay of the adoption proceeding in favor of the paternity proceeding was rendered moot after the Section 39 adoption hearing was held, as directed by the Court of Appeals, prior to the paternity determination. The majority also held that the circuit court’s decisions in the adoption case were rendered moot by the outcome of the paternity case. One judge dissented in part, disagreeing that the adoption appeal was rendered moot, and expressing the opinion that the circuit court improperly assessed whether appellee’s rights should be terminated under Section 39(2) and that a remand for an assessment of those rights under Section 39(1) was appropriate.
The Supreme Court has granted leave to appeal to address: (1) whether the Court of Appeals erred in determining that the circuit court’s decisions under Section 39 were moot in light of the order of filiation that entered in the paternity action; and (2) whether In re MKK, 286 Mich App 546 (2009), should be overruled. This case will be heard at the same session as In re LMB (No. 157903).
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April 11 morning session
• Wigfall v. City of Detroit
Plaintiff filed a complaint against the City of Detroit pursuant to the Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq., alleging that he was injured after hitting a pothole while riding his motorcycle. The city moved for summary disposition, asserting that plaintiff had failed to meet the GTLA’s notice requirement in MCL 691.1404(2), which provides that “notice may be served upon any individual, either personally, or by certified mail, return receipt requested, who may lawfully be served with civil process directed against the governmental agency.”
Plaintiff had directed his notice to “City of Detroit Law Department—CLAIMS.” The trial court denied defendant’s motion, holding that plaintiff substantially complied with the notice statute and, alternatively, defendant was equitably estopped from raising this defense. In a published opinion, the Court of Appeals reversed, holding that plaintiff’s notice did not comply with MCL 691.1404(2) or MCR 2.105(G)(2), and that substantial compliance was insufficient. 322 Mich App 36 (2017).
The Supreme Court has directed oral argument on plaintiff’s application for leave to appeal to address: (1) whether strict or substantial compliance is required with the notice provision contained within MCL 691.1404(2), compare Rowland v. Washtenaw County Road Commission, 477 Mich 197 (2007), with Plunkett v. Dep’t of Transportation, 286 Mich App 168 (2009); (2) whether plaintiff’s notice failed to comply with MCL 691.1404(2) under either a strict or substantial compliance standard; (3) whether an individual described in MCR 2.105(G)(2) can delegate the legal authority to accept lawful process under MCL 691.1404(2), see 1 Mich Civ Jur Agency § 1 (2018); and (4) whether the defendant should be estopped from asserting that the statutory notice requirement was not met. This case will be heard at the same session as West v. City of Detroit (No. 157097).
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