A Michigan State University ordinance that makes it a crime to disrupt "the normal activity" of any MSU employee is at issue in an appeal that the Michigan Supreme Court will hear argued this week.
In People v Rapp, the defendant, an MSU law student, was charged with and convicted of violating MSU Ordinance 15.05, "Disruption or molestation of persons, firms, or agencies" after he confronted an MSU parking enforcement employee over a parking ticket. The university employee called police after the student, who had stopped his car in front of the employee's work vehicle, yelled at the employee and asked for his name. The student challenged his conviction, arguing that the ordinance violated his free speech rights under the First Amendment.
The circuit court agreed and struck down the student's conviction, but the Court of Appeals reversed, holding that the ordinance was not unconstitutional on its face. The appellate court remanded the case to the trial court to determine whether the ordinance was unconstitutional as applied. The defendant argues in part that the ordinance is overly broad and vague, while the prosecution contends that the ordinance does not focus on speech, but on disruption of MSU employees at their work.
Another constitutional challenge is at issue in People v Nunley, in which the defendant was charged with driving with a suspended license, second offense. To establish that the offender was notified of the first suspension - an element of the offense - the prosecutor sought to introduce into evidence a Department of State certificate of mailing, which states that the defendant was notified by first-class mail the first time that his license was suspended. But the district court held that the certificate could not be admitted into evidence unless the person who prepared it appeared at trial to testify and to be subject to cross-examination. The circuit court agreed and the Court of Appeals affirmed in a 2-1 decision, with the majority finding that the defendant's rights under the Confrontation Clause would be violated if the certificate was admitted without witness testimony. The majority said that the certificate of mailing was proof of an element of the crime of driving with a suspended license and, therefore, it was "functionally identical to live, in-court testimony." The dissenting judge disagreed, saying that the certificate was non-testimonial in nature, adding "to hold that the certificate of mailing here is testimonial runs contrary to the purpose of the confrontation clause--to ensure the reliability of evidence through vigorous cross- examination--because cross-examination here would elicit little or nothing of value to ensure that reliability."
The Supreme Court will also hear In re Estate of Mortimore, a will dispute between the deceased's daughter and son and the woman who claims to be the father's second wife, although the marriage certificate she produced was not filed until six days after the father's death. The deceased's children maintain that the woman - who allegedly became their father's constant companion almost immediately after their mother's death - exercised undue influence over their father, causing him to make a new will in her favor. The probate court did not find undue influence, noting in part the testimony of the deceased's doctor, who asserted that the man retained his independence and made his own decisions. But the Court of Appeals reversed, holding that the probate court failed to recognize a mandatory presumption of undue influence, based on the woman's fiduciary relationship with the deceased. The evidence showed that the deceased entrusted his financial affairs to his companion, that she had the opportunity to influence his decisions, and that she benefitted from the new will, all giving rise to the presumption of undue influence, the Court of Appeals said. The Court of Appeals also determined, as a matter of law, that the woman failed to offer sufficient evidence to rebut the presumption of undue influence.
The five remaining cases the court will hear involve criminal, governmental immunity, insurance, and professional malpractice law issues.
The court will hear oral arguments in its courtroom on the sixth floor of the Michigan Hall of Justice on Wednesday and Thursday, April 4-5, starting at 9:30 a.m. each day. The court's oral arguments are open to the public. The arguments will also be broadcast on Michigan Government Television (mgtv.org).
Please note: The summaries that follow are brief accounts of complicated cases and may not reflect the way that some or all of the court's seven justices view the cases. The attorneys may also disagree about the facts, issues, procedural history, or significance of their cases. Briefs are online at http://www.courts.michigan.gov/supremecourt/Clerk/msc_orals.htm.
Wednesday, April 4
Morning Session
DOUGLAS v ALLSTATE INSURANCE COMPANY
(case no. 143503)
Court of Appeals case no. 295484
Trial Court: Washtenaw County Circuit Court
Attorney for plaintiff James Douglas: John H. Bredell.
Attorney for defendant Allstate Insurance Company: P. Kelly O'Dea.
Attorney for amicus curiae Coalition Protecting Auto No-Fault: Richard E. Hillary, II.
At issue: In 1996, the plaintiff sustained a traumatic brain injury when he was struck by a hit- and-run driver. He sued for no-fault benefits in 2005, claiming that the defendant insurance company failed to pay for attendant care that was provided by his wife. After a bench trial, the trial court entered a judgment in the plaintiff's favor. The Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings, finding in part that the trial court should have required more documentation before awarding attendant care benefits. Did the plaintiff present sufficient proofs to support the trial court's award of attendant care benefits? Did the activities plaintiff's wife performed constitute attendant care under MCL 500.3107(1)(a), or replacement services under MCL 500.3107(1)(c)? Did the trial court err in awarding attendant care benefits at the rate of $40 per hour?
JOHNSON v RECCA
(case no. 143088)
Court of Appeals case no. 294363
Trial Court: Osceola County Circuit Court
Attorney for plaintiff Penny Jo Johnson: Joseph F. Lucas.
Attorney for defendant John Recca: Daniel S. Saylor.
Attorney for amicus curiae Insurance Institute of Michigan: Kimberlee A. Hillock.
At issue: After she was injured in a car accident, the plaintiff sued the defendant driver and his insurance company. Among other things, she sought to be compensated for replacement services - household services that someone performs for an injured person when her injuries prevent her from caring for herself. The trial court held that the plaintiff could not recover replacement services from the defendant driver, because replacement services are not "allowable expenses" under MCL 500.3135(3)(c). The Court of Appeals reversed, holding that replacement services are a subset of "allowable expenses." Does MCL 500.3135(3)(c), which permits an injured person to recover excess damages for allowable expenses, work loss, and survivor's loss in third- party actions, include the cost of replacement services?
PEOPLE v RAPP
(case nos. 143343-4)
Court of Appeals case nos. 294630, 295834
Trial Court: Ingham County Circuit Court
Prosecuting attorney: Joseph B. Finnerty.
Attorney for defendant Jared Rapp: J. Nicholas Bostic.
Attorney for amicus curiae Michigan State University: Michael J. Kiley.
At issue: After confronting a Michigan State University employee about a parking ticket, the defendant was charged and convicted under a university ordinance that makes it a crime to disrupt "the normal activity . . . of any person . . . carrying out . . . service, activity or agreement for or with the University." The defendant argued that the ordinance was unconstitutional, but the Court of Appeals upheld his conviction, holding that the ordinance was not unconstitutional on its face; the appellate court remanded the case to the trial court to determine whether the ordinance was unconstitutional as applied. Is Michigan State University Ordinance 15.05 facially unconstitutional under City of Houston v Hill, 482 US 451 (1987)? Does MCR 7.101(O) allow taxation of costs in criminal cases appealed in the circuit court?
Afternoon Session
PEOPLE v NUNLEY, et al.
(case no. 144036)
Court of Appeals case no. 302181
Trial Court: Washtenaw County Circuit Court
Prosecuting attorney: Mark Kneisel.
Attorney for defendant Terry Nunley: James E. R. Fifelski.
Attorney for intervenor Attorney General Bill Schuette: B. Eric Restuccia.
At issue: The defendant was charged with driving with a suspended license (second offense), a violation of MCL 257.904(1). An element of that offense is that the offender was notified of the first suspension as required by the statute. The prosecutor sought to introduce into evidence a Department of State certificate of mailing, which states that the defendant was notified by first- class mail the first time that his license was suspended. The district court held that the certificate could not be admitted into evidence unless the person who prepared it appeared at trial to testify. Both the circuit court and the Court of Appeals affirmed the trial court's ruling. Did the Court of Appeals err when it held that the Department of State certificate of mailing is testimonial in nature and thus that its admission, without accompanying witness testimony, would violate the Confrontation Clause?
Thursday, April 5
Morning Session Only
IN RE ESTATE OF MORTIMORE, DECEASED
(case no. 143307)
Court of Appeals case no. 297280
Trial Court: Shiawassee County Probate Court
Attorney for appellees Renee Hanneman and Dean Mortimore: Douglas G. Chalgian.
Attorney for appellant Helen M. Fiser: Douglas A. Mielock.
At issue: This case involves a dispute over the validity of a will and allegations of undue influence. The children of the decedent claimed undue influence by the sole beneficiary, who became an integral part of their father's life at the time of their mother's death. The probate court ruled in favor of the beneficiary, and found that the will was not the product of her undue influence. The Court of Appeals reversed, holding that the probate court failed to recognize a mandatory presumption of undue influence, based on the beneficiary's fiduciary relationship with the deceased. What standards should apply and what factors should a court consider in determining whether a transaction was the product of undue influence where there is a fiduciary relationship between the parties?
HANNA v MERLOS
(case no. 142914)
Court of Appeals case no. 289513
Trial Court: Wayne County Circuit Court
Attorney for plaintiff Rodney Hanna: Richard D. Schenkel.
Attorney for defendant Dario Merlos, D.D.S.: Noreen L. Slank.
Attorney for amicus curiae Michigan State Medical Society: Joanne Geha Swanson.
At issue: After sending his dentist a letter complaining about the dental care that he received, the plaintiff sued the dentist for dental malpractice. The plaintiff apparently obtained an affidavit of merit to support his claim, but failed to file it with his lawsuit. The defendant moved for summary disposition, contending that the plaintiff failed to satisfy the pre-suit notice requirement of MCL 600.2912b, and failed to file an affidavit of merit with the complaint, as required by MCL 600.2912d. The trial court denied summary disposition and the Court of Appeals affirmed. The Court of Appeals held that the plaintiff's submission of a copy of the affidavit of merit to the trial court, as an exhibit to a brief, satisfied MCL 600.2912d, since it was filed before the statute of limitations expired. The panel also held that the plaintiff's letter qualified as a notice of intent under MCL 600.2912b(4) and that, although that letter failed to precisely state the proximate cause of the alleged injury, the defect should be disregarded in the interests of justice. See Bush v Shabahang, 484 Mich 156 (2009), and MCL 600.2301. Did the Court of Appeals correctly resolve this case?
PALETTA v OAKLAND COUNTY ROAD COMMISSION, et al.
(case no. 143663)
Court of Appeals case no. 298238
Trial Court: Oakland County Circuit Court
Attorney for plaintiffs Joseph Paletta and Shelly Paletta: Glenn H. Oliver.
Attorney for defendant Oakland County Road Commission: Rick J. Patterson.
Attorney for amicus curiae County Road Association of Michigan: Michael C. Levine.
Attorney for amicus curiae Michigan County Road Commission Self-Insurance Pool: William L. Henn.
At issue: The plaintiff was injured when his motorcycle struck a patch of gravel on a paved road. He sued the county road commission under the highway exception to governmental immunity, claiming that the hazardous road surface was caused by improper grading and that the defendant knew about the defect. The road commission moved for summary disposition, claiming that it did not have notice of the alleged defect, and that the gravel on the road was not a defect within the meaning of the highway exception. The trial court denied the motion, and the Court of Appeals affirmed. Was the accumulation of gravel on the roadway actionable under the highway exception to the governmental tort liability act, MCL 691.1402? Does such an accumulation of gravel implicate the defendant's duty to maintain the highway in "reasonable repair" within the meaning of MCL 691.1402(1)?
Published: Tue, Apr 3, 2012
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