State high court announces October oral arguments

The Michigan Supreme Court announced that oral arguments in 11 cases will be heard on Wednesday, October 6, and Thursday, October 7. The court will convene the arguments at 9:30 a.m. with the justices and the attorneys for the parties participating remotely via Zoom. The schedule of arguments is posted on the Supreme court’s oral arguments web page (www.courts.michigan.gov/courts/supreme-court/schedule-of-oral-arguments). Oral arguments will be livestreamed on the court’s YouTube page (www.youtube.com/user/MichiganCourts).
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, October 6
Morning Session – 9:30 a.m.

160551
The People of the State of Michigan, Plaintiff-Appellee; Carmen Fillmore, Attorney
v
(Appeal from Ct of Appeals)
(Saginaw - Jackson, D.)
Robert Lance Propp, Defendant-Appellant; Steven Helton, Attorney

The defendant called 911 to report that he had discovered his ex-girlfriend lying unresponsive in her bedroom. Emergency responders arrived and determined that she had been dead long enough for rigor mortis to set in. The prosecution charged the defendant with open murder. Before trial, the defendant moved for funds to retain an expert in the area of erotic asphyxiation to support his theory that the victim died accidentally during rough sex. The trial court denied this motion, citing a lack of evidence that the defendant and the victim engaged in erotic asphyxiation on the night in question. The trial court subsequently granted the prosecution’s motion in limine to allow the victim’s friends and family members to describe statements that the victim had made concerning the defendant’s abusive behavior towards her. The trial court ruled that all of these out-of-court statements would be admitted at trial under MCL 768.27b even if no hearsay exception applied. A jury found the defendant guilty of first-degree premeditated murder. The Court of Appeals affirmed in a published opinion that upheld both of the trial court’s pretrial rulings. The Supreme Court has granted leave to appeal to address: (1) whether the Court of Appeals correctly applied People v Kennedy, 502 Mich 206 (2018), when it affirmed the trial court’s decision to deny the defendant’s motion for expert funding; and (2) whether the Court of Appeals correctly held that evidence of other acts of domestic violence is admissible under MCL 768.27b regardless of whether it might be otherwise inadmissible under the hearsay rules of evidence.
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160813
Grant Bauserman, Karl Williams and Teddy Broe, on behalf of Themselves and all Others Similarly Situated, Plaintiffs-Appellees; Mark Granzotto, Attorney
v
(Appeal from Ct of Appeals)
(Ct. Claims – Stephens, C.)
Unemployment Insurance Agency, Defendant-Appellant; Jason Hawkins, Attorney

The plaintiffs are recipients of unemployment compensation benefits who allege in a putative class action that the defendant unlawfully seized their property without providing due process. The plaintiffs attribute this deprivation of due process to the defendant’s use of the Michigan Integrated Data Automated System (MiDAS) to detect and adjudicate suspected instances of fraud. The defendant filed a motion for summary disposition on multiple grounds, but the Court of Claims denied the motion. The Court of Appeals reversed, holding that the plaintiffs failed to comply with the notice provision of MCL 600.6431(3). The Supreme Court held that two of the three plaintiffs complied with the notice requirements and remanded the case to the Court of Appeals to consider the defendant’s argument that the plaintiffs failed to raise cognizable constitutional tort claims. The Court of Appeals, in a published opinion, affirmed the Court of Claims’ denial of the defendant’s motion for summary disposition, holding that the plaintiffs’ allegations, if proven to be true, demonstrate that their constitutional rights were violated as a result of the defendant’s use of a policy or custom in administering the unemployment benefit system and that a judicially inferred damages remedy is appropriate for the due process deprivations alleged by the plaintiffs. The Supreme Court has ordered oral argument on the application to address whether the plaintiffs have alleged cognizable constitutional tort claims allowing them to recover a judicially inferred damages remedy. See Smith v Dep’t of Public Health, 428 Mich 540, 648-652 (1987), aff’d sub nom Will v Mich Dep’t of State Police, 491 US 58 (1989) (Boyle, J., concurring in part and dissenting in part).

160991
Township of Fraser, Plaintiff-Appellant; Mark Brissette, Attorney
v
(Appeal from Ct of Appeals)
(Bay – Gill, H.)
Harvey Haney and Ruth Ann Haney, Defendants-Appellees; Phillip Ellison, Attorney

The plaintiff township sued the defendants to enjoin them from raising hogs on their commercially zoned property. The defendants’ property is not zoned for agricultural uses. The defendants filed a motion for summary disposition arguing that the plaintiff’s lawsuit was barred by MCL 600.5813, a six-year statute of limitations, because the defendants had been raising hogs on the property for longer than six years. The circuit court denied the defendants’ motion, holding that MCL 600.5813 did not apply to the township’s lawsuit. The Court of Appeals, in a published opinion, held that MCL 600.5813 applied and barred the plaintiff’s lawsuit. The Supreme Court has granted leave to appeal to address whether MCL 600.5813 applies to municipalities seeking to enjoin zoning ordinance violations.

161092
The People of the State of Michigan, Plaintiff-Appellee; Joseph Shopp, Attorney
v
(Appeal from Ct of Appeals)
(Wayne – Evans, V.)
Deandre Terrel Austin, Defendant-Appellant; Timothy Doman, Attorney

The defendant fatally shot a limousine driver during an argument and then turned his gun on the limousine’s three passengers and robbed them. He was charged with felony murder, armed robbery, and weapons offenses. During jury voir dire, the trial judge gave the standard reasonable doubt instruction but also gave a hypothetical about a woman planning her wedding and being confronted with suspicious behavior by her fiancé, and compared reasonable doubt to asking a friend’s opinion about a personal matter. The jury convicted the defendant as charged. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the defendant was denied a fair trial by virtue of the trial judge’s instructions to the jury regarding reasonable doubt; (2) whether trial counsel was constitutionally ineffective for failing to object to the trial judge’s instructions on reasonable doubt; and (3) whether the evidence presented at trial was sufficient to support the defendant’s conviction of felony-murder.

Wednesday, October 6
Afternoon Session – 1 p.m.


161839
In the Matter of Bruce U. Morrow, Judge
Arguing for the Judicial Tenure Commission: William Murphy
Arguing for Judge Morrow: Donald Campbell

Following five days of virtual hearings before a master, the Judicial Tenure Commission (JTC) recommends that respondent Third Circuit Judge Bruce U. Morrow be suspended from office for 12 months without pay and publically censured. The master and the JTC found that the respondent’s misconduct included using inappropriate sexually graphic language with female assistant prosecutors and questioning those female attorneys about their physical appearance. The respondent argues that: (1) Williams v Pennsylvania, ___ US ___; 136 S Ct 1899; 195 L Ed 2d 132 (2016), compels the conclusion that the combination of prosecutorial and adjudicatory functions in the JTC constitutes a structural due process error that invalidates this proceeding; (2) MCR 9.231(B) required the master to designate a physical place for the hearing and that the Court’s pandemic-era orders do not justify failing to apply the plain text of the controlling rules; (3) his comments did not constitute misconduct; and (4) if the Court finds misconduct, the maximum sanction should be public censure.

160668-9
The People of the State of Michigan, Plaintiff-Appellee; Emil Semaan, Attorney
v
(Appeal from Ct of Appeals)
(Macomb – Faunce, J.)
James Curtis Beck, Defendant-Appellant; Christine Pagac, Attorney

The defendant’s first trial on two counts of second-degree criminal sexual conduct involving a girl under the age of 13 ended in a mistrial. While on bond awaiting retrial in that case, the defendant was charged with two counts of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct involving another girl under the age of 13. The trial court joined the first case (Docket No. 2016-000309-FH) and the second case (Docket No. 2017?001376?FC) into a single jury trial. The defendant was convicted of two counts of second-degree criminal sexual conduct in Docket No. 2016-000309-FH and was convicted of two counts of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct in Docket No. 2017?001376?FC. The trial court sentenced the defendant to consecutive terms of 25 to 60 years for first-degree criminal sexual conduct, concurrent with terms of 57 months to 15 years for second-degree criminal sexual conduct. The Court of Appeals affirmed the defendant’s convictions and sentences in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the defendant’s retrial in Docket No. 2016-000309-FH was barred by the Double Jeopardy Clauses of the federal or state constitutions, US Const, Am V; Const 1963, art 1, § 15; (2) if so, whether vacating his convictions in that case would also warrant a new trial, resentencing, or any other remedy in the jointly tried case, Docket No. 2017?001376?FC; and (3) whether the trial court improperly imposed a mandatory minimum sentence of 25 years for an act of first-degree criminal sexual conduct (Count II) that was not charged as carrying such a minimum. See Alleyne v United States, 570 US 99, 109-111 (2013); Apprendi v New Jersey, 530 US 466, 476, 478-479 (2000).

Thursday, October 7
Morning Session – 9:30 a.m.


153828
The People of the State of Michigan, Plaintiff-Appellee; Timothy Baughman, Attorney
v
(Appeal from Ct of Appeals)
(Wayne – Hathaway, D.)
Theodore Paul Wafer, Defendant-Appellant; Jacqueline McCann, Attorney

In the early morning hours of November 2, 2013, 19-year-old Renisha McBride knocked loudly on the front and side doors of the defendant’s Dearborn Heights home.  The defendant retrieved a gun, opened the front door, and fatally shot her. The defendant claimed he acted in self-defense, thinking that McBride was trying to break into his home. The jury convicted the defendant of second-degree murder, statutory manslaughter, and felony-firearm. The Court of Appeals, in a 2-1 unpublished opinion, affirmed the defendant’s convictions, rejecting his claims that the dual homicide convictions violated double jeopardy and that the trial court reversibly erred by denying his request for the jury instruction on the rebuttable presumption of MCL 780.951(1). The Supreme Court has ordered oral argument on the application to address whether the defendant’s convictions for second-degree murder, MCL 750.317, and statutory manslaughter, MCL 750.329(1), violate constitutional prohibitions against double jeopardy. See People v Miller, 498 Mich 13 (2015). The court ordered the clerk to schedule the oral argument in this case for the same session of the court when it will hear oral argument in People v Davis (Docket No. 160775).

160775
The People of the State of Michigan, Plaintiff-Appellee; Amanda Smith, Attorney
v
(Appeal from Ct of Appeals)
(Wayne – Cameron, T.)
Joel Eusevio Davis, Defendant-Appellant; Jacqueline McCann, Attorney

The Supreme Court vacated the Court of Appeals’ finding in People v Davis, 320 Mich App 484 (2017) (Davis I), that the defendant’s convictions for assault with intent to do great bodily harm and aggravated domestic violence-second offense were mutually exclusive verdicts. After vacating that part of the Court of Appeals judgment, the Supreme Court remanded the case to the Court of Appeals for reconsideration of the defendant’s double jeopardy argument in light of People v Miller, 498 Mich 13 (2015), and directed the Court of Appeals to determine the appropriate standard of review. People v Davis, 503 Mich 984 (2019) (Davis II). On remand, the Court of Appeals, in a 2-1 unpublished opinion, held that review of this unpreserved constitutional issue was limited to plain error affecting the defendant’s substantial rights, People v Carines, 460 Mich 750, 763 (1999), and that, under Miller, the defendant’s convictions did not violate constitutional prohibitions against double jeopardy. The Supreme Court has ordered oral argument on the application to address: (1) whether the defendant’s convictions under MCL 750.81a(3) and MCL 750.84 violate constitutional prohibitions against double jeopardy, see People v Miller, 498 Mich 13 (2015); and (2) if so, whether the defendant is entitled to relief. See People v Carines, 460 Mich 750, 763 (1999). The Court ordered the Clerk to schedule the oral argument in this case for the same session of the Court when it will hear oral argument in People v Wafer (Docket No. 153828).

160358-9
Saugatuck Dunes Coastal Alliance, Plaintiff-Appellant; Scott Howard, Attorney
v
(Appeal from Ct of Appeals)
(Allegan – Nykamp, W.)
Saugatuck Township, Saugatuck Township Zoning Board of Appeals and North Shores of Saugatuck, LLC., Defendants-Appellees; James Straub, Gaetan Gerville-Reache, Attorneys

A condominium developer sought and obtained the Saugatuck Township Planning Commission’s preliminary and final approval to transform a “critical dune area” into a condominium development with 33 boat slips. The plaintiff, a non-profit group of area businesses and property owners, argues that it meets the aggrieved party standard under the Michigan Zoning Enabling Act (MZEA) to challenge these approvals in the Zoning Board of Appeals. The Zoning Board of Appeals rejected the plaintiff’s appeals for lack of standing, concluding that the group was not a “person aggrieved” under the MZEA. The Allegan Circuit Court denied the plaintiff’s appeals in two different lawsuits for lack of standing/aggrieved party status. The Court of Appeals, in an unpublished opinion, affirmed the circuit court’s decisions, concluding that the plaintiff was not a “person aggrieved” and further distinguishing the “person aggrieved” standard from the common law test for standing set forth in Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349, 372 (2010). The Supreme Court has ordered oral argument on the application to address: (1) whether the “party aggrieved” standard of MCL 125.3605 requires a party to show some special damages not common to other property owners similarly situated, see Olsen v Jude & Reed, LLC, 325 Mich App 170 (2018); (2) whether the meaning of “person aggrieved” in MCL 125.3604(1) differs from that of “party aggrieved” in MCL 125.3605, and if so what standard applies; and (3) whether the Court of Appeals erred in affirming the Allegan Circuit Court’s dismissal of the plaintiff’s appeals from the decisions of the Saugatuck Township Zoning Board of Appeals.

157581 & 157646
The People of the State of Michigan, Plaintiff-Appellee; Jerrold Schrotenboer, Attorney
v
(Appeal from Ct of Appeals)
(Jackson – Wilson, T.)
Clifford Durell McKee, Defendant-Appellant; Alona Sharon, Attorney

The People of the State of Michigan, Plaintiff-Appellee; Jerrold Schrotenboer, Attorney
v
(Appeal from Ct of Appeals)
(Jackson – Wilson, T.)
Rodney Jamar McKee, Defendant-Appellant; Sheldon Halpern, Attorney

Defendants Clifford and Rodney McKee were charged with hiring Cortez Butler to commit a murder. All three defendants were tried before a single jury, and a statement Butler made to the police was admitted into evidence. All three defendants were convicted of conspiracy to commit murder, first-degree murder, and first-degree home invasion. Defendants Clifford and Rodney McKee were also convicted of solicitation of murder. The Court of Appeals consolidated the defendants’ appeals and affirmed the convictions in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether the trial court erred in failing to grant a motion for a mistrial filed by defendants Clifford and Rodney McKee because their substantial rights were impaired by the admission of Butler’s statement to the police. See Zafiro v United States, 506 US 534, 539 (1993), and People v Hana, 447 Mich 325, 345-346 (1994).

160186
County of Ingham, County of Jackson and County of Calhoun, Plaintiffs-Appellees; Bonnie Toskey, Attorney
v
(Appeal from Ct of Appeals)
(Ingham – Aquilina, R.)
Michigan County Road Commission Self-Insurance Pool, Defendant-Appellant; Jonathan Koch, Attorney

In 2012, the Legislature enacted amendments to county road statutes allowing county boards of commissioners to dissolve county road commissions and transfer the powers, duties, and functions of the road commissions to the county. Plaintiffs Ingham County, Calhoun County, and Jackson County (the Counties) dissolved their respective road commissions, which had been members of defendant Michigan County Road Commission Self-Insurance Pool (the Pool). Ingham and Calhoun Counties signed withdrawal agreements from the Pool, but Jackson County did not. When the Counties sought refunds of surplus premiums paid by their former road commissions, the Pool denied the request. The Counties filed suit, and the Ingham Circuit Court granted summary disposition in favor of the Pool, but the Court of Appeals reversed in a published opinion. The Pool appealed, and the Supreme Court remanded the case to the Court of Appeals. On remand, the Court of Appeals held, in a published opinion, that the Counties are successors in interest and that the forfeiture provisions in the parties’ binding agreement are unenforceable as against public policy, thereby entitling the Counties to refunds of surplus premiums. The Supreme Court has ordered oral argument on the application to address: (1) whether the Court of Appeals properly held that the Counties are successors in interest to their respective road commissions, which were dissolved pursuant to MCL 46.1 et seq., and MCL 224.1 et seq.; (2) whether the Court of Appeals properly held that Jackson County was a member of the Pool despite having dissolved its road commission; and (3) whether the Court of Appeals properly held that the Counties are entitled to refunds of surplus premiums paid to the Pool because the forfeiture provisions in the Pool’s governing documents, which comprise the parties’ binding contractual agreement, are unenforceable as against public policy and must be severed, and whether this issue was properly preserved by the Counties.

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