The Michigan Supreme Court (MSC) will hear oral arguments in 13 cases on Wednesday, March 13, and Thursday, March 14, beginning at 9:30 a.m. on both days in the 6th floor courtroom at the Michigan Hall of Justice at 925 W. Ottawa, Lansing. Oral arguments will be livestreamed from the MSC website.

The notice of cases is posted on the Supreme Court’s oral arguments web page.

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, March 13
Morning Session – 9:30 a.m.

165131
PORSHA WILLIAMSON and LATESHEA WILLIAMSON, as Co-Personal Representatives of the ESTATE OF CHARLES WILLIAMSON, (attorney Kyle Kelly)
Plaintiffs-Appellees,
v               
Appeal from Ct of Appeals)
(Wayne CC - Hughes, M.)
AAA OF MICHIGAN, (attorney Lori McAllister)
Defendant-Appellant.

Charles Williamson, a pedestrian, was injured when he was hit by a motor vehicle.  He applied for no-fault benefits through the Michigan Automobile Insurance Placement Facility (MAIPF), which maintains the Michigan Assigned Claims Plan.  The MAIPF assigned the claim to the defendant.  Williamson commenced a lawsuit when the defendant denied his claim for benefits.  The plaintiffs, who are co-personal representatives of Williamson’s estate, continued the lawsuit following his passing.  The defendant moved for summary disposition, alleging that the plaintiffs committed fraud by attaching to their interrogatory answers statements claiming reimbursement for attendant care services that were dated after Williamson’s death.  The trial court granted summary disposition in the defendant’s favor, but the Court of Appeals reversed in a published opinion, holding that the fraudulent insurance act provision in MCL 500.3173a(4) does not apply to statements made after litigation has commenced.  The Supreme Court has ordered oral argument on the application to address whether MCL 500.3173a(4), the statutory provision governing fraudulent insurance acts in the filing of a claim for no-fault benefits, applies to misrepresentations offered during discovery.  See generally Griffin v Trumbull Ins Co, 509 Mich 484 (2022); Haydaw v Farm Bureau Ins Co, 332 Mich App 719 (2020); Book-Gilbert v Greenleaf, 302 Mich App 538 (2013).

164975
MATTHEW SCHAFER, HARRY HUCKLEBURY, and LILLY HUCKLEBURY, (attorney Christina Martin)
Plaintiffs-Appellees,
v
(Appeal from Ct of Appeals)
(Kent CC - Denefeld, P.)
KENT COUNTY, (attorney Matthew Nelson)
Defendant-Appellant,
and
KENT COUNTY TREASURER,
Defendant.

This is a dispute over surplus sale proceeds for tax-foreclosed properties in Kent County that were sold at auction in 2017 at prices that exceeded the amount of unpaid taxes, together with fees, penalties, interest, etc.  On July 17, 2020, the Supreme Court issued its decision in Rafaeli, LLC v Oakland Co, 505 Mich 429, 484-485 (2020), holding that “former property owners whose properties were foreclosed and sold to satisfy delinquent real-property taxes[] have a cognizable, vested property right to the surplus proceeds resulting from the tax-foreclosure sale of their properties” and that the “retention and subsequent transfer of those proceeds into the county general fund amounted to a taking of plaintiffs’ properties under Article 10, § 2 of our 1963 Constitution.”  After Rafaeli was decided, the plaintiffs filed a putative class action lawsuit against Kent County and the Kent County Treasurer.  Among other things, the plaintiffs sought to recover surplus proceeds, including for properties that were sold at auction before Rafaeli was decided.  The defendants moved for partial summary disposition with respect to those properties, arguing that Rafaeli only applied prospectively.  The trial court denied the motion, determining that Rafaeli applied retroactively.  The Court of Appeals affirmed in a published opinion, holding that Rafaeli should be given full retroactive effect.  The Supreme Court has granted Kent County’s application for leave to appeal.  The Supreme Court has directed the Clerk to schedule the oral argument in this case for the same future session of the Court when it will hear oral argument in Hathon v Michigan (Docket No. 165219).

165219
LYNETTE HATHON and AMY JO DENKINS, Individually and on Behalf of All Others Similarly Situated, (attorney Powell Miller)
Plaintiffs-Appellees,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Kelly, M.)
STATE OF MICHIGAN, (attorney Matthew Hodges)
Defendant-Appellant.

In January 2019, the plaintiffs filed a putative class action in the Court of Claims against defendant State of Michigan, seeking relief arising from tax foreclosures in counties where the defendant acted as the foreclosing governmental unit.  The plaintiffs alleged that it is an unconstitutional taking to foreclose and sell property at a tax auction sale for more than the total tax delinquency and not refund the excess/surplus equity to the property owner.  After the Court of Claims initially certified a class, the Supreme Court issued its opinion in Rafaeli, LLC v Oakland Co, 505 Mich 429 (2020), holding that former property owners are entitled to just compensation in the form of surplus proceeds resulting from the tax foreclosure sale of their properties.  The Legislature then enacted 2020 PA 256 to define the claimants who may make claims for surplus proceeds and to establish a procedure for submitting such claims.  In light of Public Act 256, the defendant argued that the plaintiffs’ claims are not compensable because the Supreme Court has yet to declare that Rafaeli applies retroactively, and the Court of Claims lacks jurisdiction in any event under 2020 PA 256.  The Court of Claims rejected the defendant’s arguments and granted the plaintiffs’ motion to certify a new class.  The defendant filed an application for leave to appeal and the Court of Appeals granted leave.  The Supreme Court denied the parties’ bypass applications.  The Court of Appeals affirmed the Court of Claims in a published opinion.  The Supreme Court has ordered oral argument on the application to address:  (1) whether 2020 PA 256 controls the plaintiffs’ claims and deprives the Court of Claims of jurisdiction to certify a class action under a takings theory; and, if not, (2) whether the Court of Claims abused its discretion by certifying a class in this case.  See MCR 3.501(A)(1).   The Supreme Court has directed the Clerk to schedule the oral argument in this case for the same future session of the Court when it will hear oral argument in Schafer v Kent Co (Docket No. 164975).

165441
JANE DOE, by Next Friend GEORGEIA KOLOKITHAS, (attorney Stephanie Arndt)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Alpena CC - Black, K.)
ALPENA PUBLIC SCHOOL DISTRICT and ALPENA BOARD OF EDUCATION, (attorney Daniel Lobello)
Defendants-Appellees.

The plaintiff’s daughter was allegedly sexually harassed by another student of the Alpena Public School District.  The plaintiff filed suit against the school district and Board of Education under the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq., alleging they created a sexually hostile educational environment by failing to prevent or take remedial measures to prevent further harassment.  The defendants moved for summary disposition under MCR 2.116(C)(8) and MCR 2.116(C)(10), arguing that the plaintiff had failed to state a claim and failed to establish a genuine issue of material fact.  The trial court granted summary disposition to the defendants on both grounds.  The Court of Appeals, in a published opinion, reversed under MCR 2.116(C)(8), holding that the ELCRA provides a cause of action against a school district for student-on-student sexual harassment and that the district exercised sufficient control over its students such as to make it vicariously liable for their conduct.  But the Court of Appeals affirmed the trial court’s holding under MCR 2.116(C)(10) that the plaintiff failed to establish a genuine issue of material fact that the defendants failed to engage in appropriate remedial actions.  The Supreme Court has ordered oral argument on the application to address:  (1) whether the plaintiff stated a cause of action under the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., for student-on-student sexual harassment; and (2) if so, whether the plaintiff established a genuine issue of material fact as to that claim.

165210-1
MAUREEN ST. CLAIR, (attorney Michael Dezsi)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Macomb CC - Maceroni, J.)
XPO LOGISTICS, INC., d/b/a UX ASSEMBLY AND INSTALLATION,
Defendant/Cross-Plaintiff-Appellee,
and
ICON HEALTH & FITNESS, INC., (attorney Lincoln Herweyer)
Defendant-Appellee,
and
CMC LOGISTICS, INC., (attorney Thomas Cardelli)
Defendant/Cross-Defendant-Appellee.

On March 16, 2015, the plaintiff fell while walking on her treadmill.  She was not wearing the safety clip and the treadmill kept going.  She became trapped between the wall and the treadmill and suffered severe lacerations.  The plaintiff filed a lawsuit in federal court on January 11, 2018, against ICON Health & Fitness, Inc., the manufacturer of the treadmill, and XPO Logistics, Inc., which contracted with the retailer that sold the treadmill to deliver and install sports equipment.  XPO filed a notice of nonparty at fault identifying CMC Logistics, Inc., which installed the treadmill, as a potentially liable party.  On August 14, 2018, the plaintiff filed an amended complaint adding CMC as a party.  On December 6, 2019, the federal district court dismissed the suit without prejudice on the basis that it no longer had diversity jurisdiction because CMC is a Michigan corporation.  On the same date her federal complaint was dismissed, the plaintiff filed a lawsuit in the Macomb Circuit Court against ICON, XPO, and CMC.  XPO filed a crossclaim against CMC for express and implied contractual indemnification.  All defendants and CMC as a cross-defendant filed motions for summary disposition, which the trial court granted.  The trial court granted CMC’s motion for summary disposition under MCR 2.116(C)(7) on the basis that the three-year limitations period barred the plaintiff’s suit.  The trial court granted ICON’s motion for summary disposition under MCR 2.116(C)(10), finding that the plaintiff misused the treadmill in a manner that was not reasonably foreseeable because she did not read the treadmill’s instruction manual before using it, did not use the safety clip, and did not place the treadmill so that it had eight feet of clearance behind it.  The Court of Appeals, in a 2-1 published opinion, affirmed the trial court.  The Supreme Court has ordered oral argument on the application to address:  (1) whether the plaintiff’s action against defendant CMC Logistics is barred by the statute of limitations, see MCL 600.2957(2); MCL 600.5856(a); and (2) whether defendant ICON is entitled to the statutory misuse defense, see MCL 600.2947(2).

Wednesday, March 13
Afternoon Session – 1 p.m.

164953-4
SUSAN CHILDERS, as Conservator for JUSTIN CHILDERS, a Legally Incapacitated Person,
Plaintiff,
and
MICHIGAN PROPERTY & CASUALTY GUARANTY ASSOCIATION, (attorney Benjamin Jeffers)
Intervening Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Genesee CC - Pickell, B.)
PROGRESSIVE MARATHON INSURANCE COMPANY, (attorney Daniel Saylor)
Defendant-Appellant.
—————
SUSAN CHILDERS, as Conservator for JUSTIN CHILDERS, a Legally Incapacitated Person, (attorney Richard Burns)
Plaintiff-Appellee,
and
MICHIGAN PROPERTY & CASUALTY GUARANTY ASSOCIATION,
Intervening Plaintiff,
v
(Appeal from Ct of Appeals)
(Genesee CC - Pickell, B.)
PROGRESSIVE MARATHON INSURANCE COMPANY, (attorney Daniel Saylor)
Defendant-Appellant.

Justin Childers was rendered a quadriplegic in a motor vehicle accident in which he was the passenger in an uninsured vehicle owned and operated by Shaina Groulx.  The plaintiff is the conservator for Justin Childers, who was awarded no-fault benefits pursuant to an insurance policy issued by American Fellowship Mutual Insurance Company (American Fellowship).  American Fellowship subsequently was declared insolvent, so the Michigan Property and Casualty Guaranty Association (MPCGA) assumed responsibility for the no-fault payments.  The MPCGA later identified Progressive Marathon Insurance Company (Progressive) as an insurer pursuant to an insurance policy issued to Mark Groulx on the basis that Shaina Groulx resided with him at the time of the accident, making her a resident relative under his policy.  Progressive denied benefits, so plaintiff and the MPCGA filed a lawsuit seeking to hold Progressive responsible for Justin’s PIP benefits.  Progressive moved for summary disposition, claiming that the action was barred because it was filed more than one year after the date of the injury and because Shaina Groulx was not an insured person under the policy.  The trial court granted summary disposition in Progressive’s favor, concluding that, while the action was timely filed, Shaina Groulx was not an insured person under the Progressive policy. The Court of Appeals reversed in a published opinion.  The Court of Appeals agreed with the trial court that the action was timely filed, but concluded that Shaina Groulx was an insured person under the Progressive policy.  The Supreme Court has ordered oral argument on the application to address:  (1) at what point does a claim for recovery of personal protection insurance benefits payable under the no-fault act accrue when an  insurer  providing  those benefits is declared insolvent and another insurer is identified by the MPCGA, see generally MCL 600.5827; Frank v Linkner, 500 Mich 133 (2017); Titan Ins Co v North Pointe Ins Co, 270 Mich App 339 (2006); (2) what statute-of-limitations period would apply to such a claim, see MCL 500.3145(1); MCL 600.5813; and (3) whether Progressive is an insurer in the chain of priority insurers, see former MCL 500.3114(4), as amended by 2002 PA 38; Dobbelaere v Auto-Owners Ins Co, 275 Mich App 527 (2007); Amerisure Ins Co v Coleman, 274 Mich App 432 (2007).

165296
PEOPLE OF THE STATE OF MICHIGAN, (attorney Melissa Keyes)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(St Clair CC - Brown, E.)
LANTZ HOWARD WASHINGTON, (attorney Jonathan Sacks)
Defendant-Appellee.

The defendant crossed the Blue Water Bridge from Port Huron, Michigan, into Canada without paying the toll.  A Canadian Customs and Border Service Agency agent, Officer Matthew Lavers, arrested the defendant, brought him back to the American side of the bridge, and reported that he was wearing a bulletproof vest under his shirt.  Officer Lavers did not testify at the defendant’s trial.  Instead, a United States Customs and Border Protection supervisory officer, Paul Stockwell, testified that based on his communications with Officer Lavers, he took custody of the defendant and a bulletproof vest.  Officer Stockwell transferred custody of the defendant to Port Huron Police Officer Kyle Whitten.  Officer Whitten testified that he took the defendant to the St. Clair County Jail, where he overheard him say that he was wearing body armor because he was afraid that people were going to kill him.  During a recorded phone call from the jail, the defendant stated that he wore a bulletproof vest because he had been threatened and he was in fear for his life.  Following a jury trial, the defendant was convicted of being a violent felon in possession of body armor.  The Court of Appeals, in a 2-1 published opinion, held that Officer Lavers’ testimonial statement was implicitly admitted in violation of the Confrontation Clause and that the error was not harmless beyond a reasonable doubt because the other evidence against the defendant were statements admitted in violation of the corpus delicti rule, which provides that a defendant’s confession may not be admitted unless there is direct or circumstantial evidence independent of the confession establishing the occurrence of the specific injury and some criminal agency as the source of the injury.  Accordingly, the Court of Appeals vacated the defendant’s conviction and remanded for a new trial.  The Supreme Court has granted leave to appeal to address:  (1) whether evidence directly implying the substance of a testimonial, out-of-court statement made by an unavailable witness and offered to prove its truth, i.e., “implied testimonial hearsay,” is inadmissible because it violates the Sixth Amendment of the United States Constitution and Article 1, § 20 of Michigan’s Constitution; and, if so, (2) whether the defendant’s incriminating statements were inadmissible under the corpus delicti rule.

Thursday, March 14
Morning Session – 9:30 a.m.

165341
ADAM MASSERANT, (attorney Russell Smith)
Petitioner-Appellant,
v
(Appeal from Ct of Appeals)
(Ingham CC - Canady, C.)
STATE EMPLOYEES’ RETIREMENT SYSTEM, (attorney Emily Zillgitt)
Respondent-Appellee.

The petitioner worked for the State Department of Natural Resources for 19 years before applying for non-duty disability benefits under the State Employees’ Retirement Act, MCL 38.1 et seq.  An independent medical advisor designated by the Retirement Board concluded that the petitioner was not totally disabled, as required by MCL 38.67a(5)(b) for the Board to retire a state employee.  Consequently, the Board denied benefits.  The circuit court affirmed.  The Court of Appeals, in a 2-1 unpublished opinion, affirmed the circuit court, rejecting the petitioner’s argument that MCL 38.67a(5)(b) violates due process because it provides no mechanism for challenging the reliability of medical advisors’ conclusions.  The Supreme Court has ordered oral argument on the application to address whether MCL 38.67a(5)(b) violates the Due Process Clause of the Michigan and/or the United States Constitutions, Const 1963, art 1, § 17; US Const, Am XIV, § 1.

165185
PEOPLE OF THE STATE OF MICHIGAN, (attorney Heather Bergmann)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Kalamazoo CC - Lightvoet, P.)
WILLIAM EDWARD NEILLY, (attorney Tina Olson)
Defendant-Appellant.

In 1993, the defendant was convicted of first-degree murder and was sentenced to life without parole for a crime committed when he was 17 years old.  The sentencing court did not order restitution at that time.  In April 2021, the defendant was resentenced, pursuant to MCL 769.25a, to a prison term of 35 to 60 years.  The sentencing court also imposed restitution in the amount of $14,895.78.  The Court of Appeals affirmed the restitution order in an unpublished opinion.  The Supreme Court has ordered oral argument on the application to address:  (1) whether restitution constitutes punishment for purposes of the Ex Post Facto Clauses of the United States Constitution, US Const, art I, § 10, and the Michigan Constitution, Const 1963, art 1, § 10; (2) whether application of the current versions of the restitution statutes rather than the statutes in effect when the defendant was convicted “disadvantage[d]” him for purposes of the Ex Post Facto Clauses, Weaver v Graham, 450 US 24, 29 (1981); see also People v Lueth, 253 Mich App 670, 693 (2002); and (3) if there is an Ex Post Facto Clause violation, what is the appropriate remedy?

164951
CITIZENS INSURANCE CO. OF AMERICA, AMERISURE MUTUAL INSURANCE CO., and AUTO-OWNERS INSURANCE CO., (attorney Michael Cook)
Plaintiffs/Counterdefendants-Appellees,
v
(Appeal from Ct of Appeals)
(Livingston CC - Hultgren, W)
LIVINGSTON COUNTY ROAD COMMISSION, (attorney Jeffrey Alber)
Defendant/Counterplaintiff-Appellant.

The defendant sought insurance coverage and defense costs from its insurance companies (plaintiffs) for an environmental contamination claim, but the plaintiffs denied coverage.  In an attempt to settle the coverage dispute, the plaintiffs and the defendant engaged in mediation.  The mediator proposed a $475,000 settlement.  On behalf of their clients, the attorneys emailed their agreement to settle for that amount.  The attorneys then emailed back and forth to determine the language of the settlement agreement.  At the end of this process, the defendant’s attorney advised the other attorneys that he was awaiting approval from the defendant’s Board.  At a subsequent meeting, the Board authorized the Managing Director to sign the settlement agreement on behalf of the Board pending consultation with legal counsel.  But after consultation with a new attorney, the Board concluded that it would not agree to the settlement.  The plaintiffs filed a lawsuit seeking a declaratory judgment that the coverage dispute was settled and an order requiring the defendant to execute the settlement agreement and comply with its terms.  The defendant denied that the insurance claims had been settled, asserting that no final and binding settlement agreement was reached and that its former attorney lacked the authority to bind the defendant to a settlement.  The trial court held that the attorney-client privilege between the defendant and its former attorney had been waived and granted the plaintiffs’ motion to compel the production of documents between the defendant and its former attorney that would disclose the extent of his authority to bind the defendant in settlement.  The trial court also denied the defendant’s motion for summary disposition, concluding that there was a question of fact as to whether a binding settlement agreement was reached.  The Court of Appeals denied the defendant’s application for leave to appeal, but the Supreme Court remanded the case to the Court of Appeals for consideration as on leave granted.  On remand, the Court of Appeals, in a published opinion, affirmed the trial court and remanded the case to the trial court for an in camera review of the documents it ordered the defendant to produce.  The Supreme Court has ordered oral argument on the application to address:  (1) whether a material question of fact exists regarding whether the parties entered into a binding settlement agreement; (2) whether a material question of fact exists regarding whether the defendant’s former attorney had the authority to approve the settlement agreement; and (3) whether the defendant waived the attorney-client privilege as to documents related to its former attorney’s authority to settle.

164050
PEOPLE OF THE STATE OF MICHIGAN, (attorney Margaret Gillis Ayalp)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Wayne CC - Lillard, Q.)
DWIGHT T. SAMUELS, (attorney Jacqueline McCann)
Defendant-Appellant.

The defendant and his twin brother were charged with various crimes for assaulting a man at a Detroit restaurant.  The prosecution made a joint plea offer that was conditioned on both the defendant and his brother entering pleas.  The defendant was initially reluctant to accept the offer, but agreed to accept it after his brother indicated he wanted to accept the offer.  The defendant pled guilty to assault with intent to murder and second-offense felony-firearm in exchange for the dismissal of other charges.  The trial court sentenced him to 13 to 30 years in prison for assault with intent to murder and five years for felony-firearm.  At the sentencing hearing, the defendant moved to withdraw his plea, claiming it was involuntary given the atmosphere of coercion due in part to the joint nature of the plea offers.  The trial court denied the motion, and the Court of Appeals denied the defendant’s application for leave to appeal.  After the Supreme Court remanded the case to the Court of Appeals for consideration as on leave granted, the Court of Appeals affirmed in a published opinion.  The Supreme Court has ordered oral argument on the application to address:  (1) whether a trial court is required to hold an evidentiary hearing on the voluntariness of a guilty plea that is induced in part by an offer of leniency to a relative, see People v James, 393 Mich 807 (1975); and if so, (2) how a trial court is to determine whether an offer of leniency to a relative “rendered the defendant’s plea involuntary in fact.”  Id.

165711
In re O O CLAUDIO-PEREZ, Minor.
(Appeal from Ct of Appeals)
(Kalamazoo CC Family Division- Pierangeli, G.)
Guardian Ad Litem for minor child, Alicia Storm
Attorney for petitioner-appellee, Heather Bergmann
Attorney for respondent-appellant mother, Andrea Bilabaye

The Kalamazoo Circuit Court Family Division terminated the respondent’s parental rights to her minor child under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (c)(ii) (new conditions supporting jurisdiction continue to exist), and (j) (reasonable likelihood of harm if child is returned).  The Court of Appeals affirmed in an unpublished opinion.  The Supreme Court remanded the case to the Court of Appeals to review and address the trial court’s decision finding statutory grounds to terminate parental rights under MCL 712.A19b(3)(c)(i), (c)(ii), and (j).  On remand, the Court of Appeals, in an unpublished opinion, held that the trial court did not err in finding statutory grounds under MCL 712.A19b(3)(c)(i) and (j), and that it was unnecessary to address whether the trial court erred in also finding statutory grounds under subsection (c)(ii).  The Court of Appeals held that the trial court erroneously speculated as to its findings regarding one condition leading to adjudication, physical abuse, but that the other condition, medical neglect of a medically fragile child, was not rectified and was not reasonably likely to be rectified within a reasonable time.  The Supreme Court has ordered oral argument on the application to address:  (1)  whether the Kalamazoo Circuit Court Family Division erred in finding statutory grounds for termination were proven by clear and convincing evidence; (2) whether the petitioner failed to make reasonable efforts to rectify the condition that led to the child’s removal; and (3) whether the trial court erred by concluding that the conditions leading to adjudication could not be rectified in a reasonable amount of time with continued guardianship while expanding the respondent’s parenting time and providing appropriate services.

headlines Oakland County

• Advanced Trial Training
• Nessel signs bill into law as acting governor
• Board approves funding for affordable housing in Oakland and other counties
• Former Judge J. Michael Luttig to receive ABA Presidential Citation at 2024 Annual Meeting
• OK2Say calls increased 31% in '23

headlines National

• Illinois Gov. JB Pritzker will speak at ABA Annual Meeting
• 7 steps to successful crisis management
• Beyond Traditional Tools: Leveraging AI for efficient law practice management
• Punishing first grader for ‘Black Lives Mater’ drawing violates First Amendment, appeal argues
• 97-year-old federal appeals judge should be suspended another year for exam refusal, panel says
• How ShareFile helps firms keep pace with changes in law practice