The Michigan Supreme Court (MSC) will hear oral arguments in 11 cases on Tuesday, April 16, and Wednesday, April 17, 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.
Tuesday, April 16
Morning Session – 9:30 a.m.
164900-1
ERIC BRADLEY and JACQUELINE CHUANG, (attorney James Fink)
Plaintiffs-Appellees,
v
(Appeal from Ct of Appeals)
(Washtenaw CC - Connors, T.)
LINDA FRYE-CHAIKEN,
Defendant,
and
BARRY POWERS, (attorney Barry Powers)
Appellant.
———
ERIC BRADLEY and JACQUELINE CHUANG, (attorney James Fink)
Plaintiffs-Appellees,
v
(Appeal from Ct of Appeals)
(Washtenaw CC - Connors, T.)
LINDA FRYE-CHAIKEN,
Defendant,
and
BARRY POWERS, (attorney Barry Powers)
Appellant.
———
Barry Powers became the defendant’s attorney after the plaintiffs were granted summary disposition and after the trial court determined that the defenses and counterclaims asserted by the defendant were frivolous and granted the plaintiffs’ motion for sanctions under MCR 1.109(E)(7). Powers represented the defendant at the evidentiary hearing to determine reasonable attorney fees. The trial court issued an opinion and order granting the plaintiffs’ request for attorney fees jointly and severally against the defendant and her prior and current counsel pursuant to MCL 600.2591. The trial court entered a judgment in favor of the plaintiffs, jointly and severally against the defendant, her current attorney (Powers), and each of the attorneys who had previously represented her. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether the attorney hired to litigate the amount of costs and fees assessed by the trial court was properly found to be jointly and severally responsible, under MCR 1.109(E) or MCL 600.2591(1), for the costs and fees that were incurred prior to the attorney’s appearance in the case, and/or that did not arise out of his representation of the defendant. In addressing that question, the Supreme Court has directed the parties to specifically address: (1) whether, under MCR 1.109(E) or MCL 600.2591(1), all attorneys who represented a client during any portion of a case in which an action or defense was frivolous must be held jointly and severally responsible for costs and fees; and (2) if not, how a court should determine which attorneys should be held liable for costs and fees.
165377
NAWAL DAHER and MOHAMAD JOMAA, Co-Personal Representatives of the ESTATE OF JAWAD JUMAA, a/k/a the ESTATE OF JAWAD JOMAA, (attorney Robert Kamenec)
Plaintiffs-Appellees,
v
(Appeal from Ct of Appeals)
(Wayne CC - Snow, M.)
PRIME HEALTHCARE SERVICES-GARDEN CITY, LLC, d/b/a GARDEN CITY HOSPITAL, KELLY W. WELSH, D.O., and MEAGAN SHADY, D.O., (attorney Daniel Corbet)
Defendants-Appellants.
In this medical malpractice action brought under the wrongful-death act, MCL 600.2922, the plaintiffs allege that the defendants failed to properly diagnose and treat their 13-year-old son, leading to his death. The complaint alleges that the decedent suffered lost earnings and lost earnings capacity. The defendants filed a motion for summary disposition with respect to the plaintiffs’ request for future economic damages, but the trial court denied the motion. The Court of Appeals affirmed in a published opinion. The Supreme Court has granted leave to appeal to address: (1) whether the estate of a child may recover damages for the child’s lost future earnings; and (2) to what specificity future earnings need be shown.
165845
TRUE CARE PHYSICAL THERAPY, PLLC, (attorney Mark Granzotto)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Oakland CC - Valentine, V.)
AUTO CLUB GROUP INSURANCE COMPANY, (attorney James Gross)
Defendant-Appellant.
As part of no-fault reform passed in 2019, the Legislature amended MCL 500.3112, which authorizes healthcare providers to sue insurers for overdue benefits, and enacted MCL 500.3157a, which allows insurers to conduct a utilization review of a healthcare provider’s charges. MCL 500.3157a(5) provides that healthcare providers may appeal an insurer’s utilization review determination to the Department of Insurance and Financial Services (DIFS) and MCL 500.3157a(3) authorizes the DIFS to promulgate administrative rules to implement the provisions of the statute. The DIFS enacted rules as directed, including Mich Admin Code R 500.65, which provides that a healthcare provider may appeal an insurer’s utilization review determination to the DIFS within 90 days of the date of the determination and that the DIFS’s decision is subject to judicial review pursuant to MCL 500.244. The plaintiff provided physical therapy services to a patient who was injured in a motor vehicle accident. After the defendant insurer conducted a utilization review of the plaintiff’s charges and concluded that the plaintiff had exceeded guidelines for physical therapy for the type of injuries being treated, it ceased paying benefits to the plaintiff. The plaintiff filed suit in Oakland Circuit Court pursuant to MCL 500.3112. The defendant moved for summary disposition, arguing among other things that the circuit court lacked subject-matter jurisdiction over the lawsuit because the administrative appeal in MCL 500.3157a(5) is the exclusive remedy for challenging a utilization review determination. The circuit court denied the motion, agreeing with the plaintiff that the cause of action provided in MCL 500.3112 is not premised on any action taken after the utilization review process or the exhaustion of administrative remedies. The circuit court later issued an order accepting the parties’ stipulation to: (1) entry of a final judgment awarding plaintiff $10,813.57 for no-fault benefits, interest, costs, and attorney fees; (2) staying execution and enforcement of the judgment pending appeal; and (3) preserving the defendant’s ability to appeal by right the judgment and all prior orders adverse to it. The Court of Appeals affirmed the circuit court’s orders in a published opinion. The Supreme Court has ordered oral argument on the application to address whether the administrative appeal and judicial review of utilization review determinations set forth in MCL 500.3157a(5) and Mich Admin Code R 500.65 provides the exclusive method for obtaining review of such determinations or whether, as the Court of Appeals concluded, that appeal is merely an alternative to a healthcare provider filing a lawsuit pursuant to MCL 500.3112.
165272
PEOPLE OF THE STATE OF MICHIGAN, (attorney JoEllen Haas)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Ottawa CC - Hulsing, J.)
ARMOND PINSON, (attorney Lindsay Ponce)
Defendant-Appellant.
The defendant pled guilty to third-degree criminal sexual conduct and was sentenced to six months in jail, a downward departure from the guidelines minimum sentence range. The prosecutor appealed, arguing that MCL 769.8(1) requires an indeterminate prison sentence for first-time felony offenses punishable by imprisonment. The Court of Appeals, in a published opinion, vacated the jail sentence and remanded to the trial court for resentencing. The Supreme Court vacated the judgment of the Court of Appeals and remanded for reconsideration because the Court of Appeals relied in part on a version of MCL 769.31(b) that did not become effective until after the defendant was sentenced. On remand, the Court of Appeals, in a published opinion, again vacated the defendant’s sentence and remanded to the trial court for resentencing. The Supreme Court has ordered oral argument on the application to address whether MCL 769.8 requires an indeterminate prison sentence for first-time felony offenders where the offense provides prison as a possible punishment, or whether the statute instead requires that, when a trial court decides to impose a prison sentence, that sentence must be indeterminate.
166305
PATRICIA BATISTA, DAVID BRITTEN, TIMOTHY DONAHUE, AARON GAFFNEY, JOHN HEWITT, RONALD KOEHLER, AMY SWANTEK, CHRIS THOMSON, and MICHIGAN ASSOCIATION OF SUPERINTENDENTS AND ADMINISTRATORS, (attorney Robert Schindler)
Plaintiffs-Appellants,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Murray, C.)
OFFICE OF RETIREMENT SERVICES, MICHIGAN PUBLIC SCHOOL EMPLOYEES RETIREMENT SYSTEM, MICHIGAN PUBLIC EMPLOYEES RETIREMENT SYSTEM BOARD, PUBLIC SCHOOL EMPLOYEES RETIREMENT SYSTEM BOARD MEMBERS, and EXECUTIVE DIRECTOR OF RETIREMENT SERVICES, (attorney Patrick Fitzgerald)
Defendants-Appellees.
The plaintiffs are current or retired public school superintendents and administrators who work or worked under personal employment contracts, not collective bargaining agreements. They brought this action against the defendants in the Court of Claims, arguing that their pension benefits should be higher under the Michigan Public School Employees Retirement Act (the Retirement Act), MCL 38.1301 et seq. Part of the formula for determining such benefits is a member’s “final average compensation.” MCL 38.1303a(3)(f) provides, “Compensation does not include ... [c]ompensation in excess of an amount over the level of compensation reported for the preceding year except increases provided by the normal salary schedule for the current job classification.” Because normal salary schedules are typically set forth in collective bargaining agreements, this case involves the proper interpretation of MCL 38.1303a(3)(f) when there is no collective bargaining agreement, and therefore, no normal salary schedule. Defendant Office of Retirement Services (ORS) created normal salary increase (NSI) schedules to apply in these circumstances. The plaintiffs argue that the ORS did not have the authority to create NSI schedules. The Court of Claims granted the defendants’ motions for summary disposition, denied the plaintiffs’ motion for summary disposition, and dismissed the case. The Court of Appeals, in a published opinion, reversed and remanded for entry of a judgment in favor of the plaintiffs with respect to declaratory relief, holding that the Retirement Act does not authorize the ORS to create and implement NSI schedules. The Supreme Court heard oral argument on the defendants’ application for leave to appeal and (1) affirmed the Court of Appeals’ holding that the ORS lacks the authority to create and implement its own NSI schedules; (2) vacated the judgment of the Court of Appeals to the extent it held that the phrase “normal salary schedule” in MCL 38.1303a(3)(f) refers only to a provision contained in a collective bargaining agreement; (3) reversed the Court of Appeals’ holding that MCL 38.1303a(3)(f) does not govern public school employees who work pursuant to personal employment contracts rather than collective bargaining agreements; and (4) remanded the case to the Court of Appeals to address how MCL 38.1303a(3)(f) applies to public school employees who do not work pursuant to collective bargaining agreements and to address how this holding affects the plaintiffs’ claims in this case. Batista v Office of Retirement Servs, 511 Mich 973 (2023). On remand, the Court of Appeals, in a published opinion, reversed and remanded for entry of judgment in favor of the plaintiffs with respect to declaratory relief and the invalidity of the NSI schedules under the Retirement Act. The Supreme Court has ordered oral argument on the application to address: (1) whether the phrase “normal salary schedule” in MCL 38.1303a(3)(f) refers only to a provision contained in a collective bargaining agreement; and (2) if not, from what other source may a “normal salary schedule” be derived. The Supreme Court has directed the Clerk of the Court to schedule this case for argument at the April 2024 session.
Tuesday, April 16,
Afternoon Session – 1 p.m.
165741
BRIAN MCLAIN, (attorney Christopher Desmond)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Livingston CC - Geddis, S.)
ROMAN CATHOLIC DIOCESE OF LANSING, (attorney Thomas Meagher)
Defendant-Appellee,
and
RICHARD LOBERT and ROMAN CATHOLIC ARCHDIOCESE OF BALTIMORE,
Defendants.
The plaintiff claims that in 1999 he was abused by defendant Father Richard Lobert, who worked at a school where the plaintiff was a 16-year-old student. The plaintiff alleges that he did not discover the connection between his mental health issues and Lobert’s sexual abuse until he revealed the abuse to a therapist in 2020. In 2021, the plaintiff sued Lobert, as well as the Roman Catholic Diocese of Lansing and the Roman Catholic Archdiocese of Baltimore, alleging negligence based on the sexual abuse. The defendants moved for summary disposition under MCR 2.116(C)(7), arguing that the claims were time-barred under the applicable limitations period. The plaintiff argued that his complaint was timely under MCL 600.5851b, which was enacted in 2018. Specifically, the plaintiff relied on MCL 600.5851b(1)(b), which provides that an individual who was the victim of criminal sexual conduct while a minor may commence an action to recover damages at any time before “[t]hree years after the date the individual discovers, or through the exercise of reasonable diligence should have discovered, both the individual’s injury and the causal relationship between the injury and the criminal sexual conduct.” The trial court agreed with the plaintiff and denied the defendants’ motions for summary disposition. The Roman Catholic Diocese of Lansing and the Roman Catholic Archdiocese of Baltimore each appealed. Following consolidation of the two appeals, the Court of Appeals, in a published opinion, reversed the trial court’s ruling and held that summary disposition was appropriate because the plaintiff’s claims were time-barred. The Supreme Court has granted leave to appeal to address: (1) whether the three-year period to commence an action set forth in MCL 600.5851b(1)(b) renders the plaintiff’s lawsuit timely due to his alleged recent discovery of the causal relationship between his purported injuries and the alleged criminal sexual conduct, and, if not, (2) whether, under an analysis of the factors set forth in LaFontaine Saline, Inc v Chrysler Group, LLC, 496 Mich 26, 38-39 (2014), MCL 600.5851b(1)(b) applies retroactively to the time of the wrong such that the plaintiff’s claims were timely filed.
Wednesday, April 17
Morning Session – 9:30 a.m.
165207-8
165207
G.C., by Next Friend CRYSTAL CAVAZOS, (attorney Robert Kamenec)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Genesee CC - Behm, K.)
AMERICAN ATHLETIX, LLC, and DAVISON COMMUNITY SCHOOLS, (attorney Christopher Marker)
Defendants,
and
DANIEL ROMZEK and PHILIP THOM,
Defendants-Appellees.
———
165208
G.C., by Next Friend CRYSTAL CAVAZOS, (attorney Robert Kamenec
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals No. 357966)
(Genesee CC - Behm, K.)
AMERICAN ATHLETIX, LLC, and DAVISON COMMUNITY SCHOOLS, (attorneys Michael Ross, Christopher Marker)
Defendants-Appellees,
and
DANIEL ROMZEK and PHILIP THOM,
Defendants.
A toddler at a football game fell through a gap in a set of bleachers that were designed and installed without risers to close the gap between the floorboards and seating planks. The toddler’s mother sued the school district, its maintenance directors, and a company that twice inspected the bleachers but never quoted the district a price for adding riser planks. The trial court granted summary disposition to the school district on the basis that the alleged design defect did not fit within the government building exception to governmental immunity under Renny v Mich Dep’t of Transp, 478 Mich 490 (2007). The trial court granted summary disposition to the company on the basis that it did not have any relationship with the toddler that evoked a duty of care for his safety. The trial court found a jury question as to the directors’ gross negligence. The plaintiff appealed the grant of the school district’s and company’s motions for summary disposition, and the maintenance directors appealed the denial of their motion for summary disposition. The Court of Appeals, in an unpublished opinion, affirmed the grant of summary disposition to the school district and the company and reversed the trial court’s denial of summary disposition to the maintenance directors. The Supreme Court has ordered oral argument on the application to address whether a governmental agency’s noncompliance with a building code provision constitutes a failure to meet its obligation to repair and maintain a public building, rendering it liable under MCL 691.1406 and Renny v Mich Dep’t of Transp, 478 Mich 490 (2007).
165770
RONALD A. JOSTOCK and SUSAN J. JOSTOCK, (attorney Adam Flory)
Plaintiffs-Appellees,
v
(Appeal from Ct of Appeals)
(Lapeer CC - Holowka, N.)
MAYFIELD TOWNSHIP and MAYFIELD TOWNSHIP BOARD OF TRUSTEES,
Defendants,
and
A2B PROPERTIES, LLC, (attorney Robert Davis)
Defendant-Appellant.
The Lapeer International Dragway is located in a R-1 zoning district in Mayfield Township in Lapeer County. The dragway started in 1968 and historically operated as a nonconforming use with limited hours, as allowed by the township. In 2018, A2B Properties, LLC purchased the dragway and began expanding its facilities and hours of operation. In 2019, nearby landowners sued A2B in circuit court to abate what they characterized as a nuisance, seeking declaratory and injunctive relief. The circuit court entered a preliminary injunction that limited the dragway’s hours. In spring of 2021, A2B filed a petition for rezoning with the township, seeking to have the property rezoned from R-1 to C-2, and then voluntarily filed a conditional rezoning agreement with the township, seeking to have the property rezoned to C-2 subject to certain limitations on the dragway’s hours and operations. In June of 2021, after public hearings and meetings, the township board followed the planning commission’s recommendation and adopted the conditional rezoning agreement and rezoned the property to C-2 subject to the agreement’s terms. A2B immediately filed a motion in the still-pending 2019 circuit court action for relief from the preliminary injunction. The circuit court denied the motion, reasoning that because dragway operations were not a permitted use in the C-2 zoning district, the conditional rezoning that purported to allow the dragway to operate was invalid. Meanwhile, in July of 2021, plaintiffs Ronald and Susan Jostock, who live near the dragway, filed a separate lawsuit against A2B, the township, and the township board of trustees, seeking a declaration that the rezoning was erroneous and an injunction enjoining the rezoning. The defendants filed separate motions for summary disposition. The circuit court denied the motions, denied the plaintiffs’ request for injunctive relief, and granted declaratory relief in favor of the plaintiffs. The circuit court concluded that because a dragway was not a permitted use in the C-2 zoning district, and the conditional rezoning purported to only allow a dragway use, the rezoning was invalid. The Court of Appeals affirmed in a published opinion. The Supreme Court has granted leave to appeal to address: (1) whether MCL 125.3405 allows for uses not otherwise authorized in a particular zone; (2) what mechanism was used to authorize the current use as a dragway, and whether that mechanism is available to authorize or expand the use of the appellant’s property; (3) whether operation of a dragway is an authorized use under C-2; and (4) whether the township’s conditional rezoning of the appellant’s property is valid under MCL 125.3405.
165450
CLEVELAND STEGALL, (attorney Deborah Gordon)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Oakland CC - Anderson, M.)
RESOURCE TECHNOLOGY CORPORATION,
d/b/a BRIGHTWING, and FCA US, LLC, (attorneys Thomas Werner, Carly Machasic
Defendants-Appellees.
The plaintiff was fired from his position at FCA US, LLC, where he was working through staffing agency Resource Technology Corporation, d/b/a Brightwing. He contended that he was fired because he complained to FCA supervisors about asbestos and threatened to and did file a complaint under the Michigan Occupational Safety and Health Act (MiOSHA), MCL 408.1001 et seq. The plaintiff filed a lawsuit against FCA and Brightwing, alleging retaliatory termination under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and termination in violation of public policy. The trial court granted the defendants’ motions for summary disposition, holding that the public-policy claim was preempted by the WPA and that the WPA claim against Brightwing failed because the plaintiff did not have evidence of an adverse employment action by Brightwing and could not prove causation. The Court of Appeals affirmed in a 2-1 unpublished opinion, holding that the plaintiff failed to support a public-policy claim regardless of whether it was preempted and failed to create an issue of fact as to causation on the WPA claim. The Supreme Court heard oral argument on the application. The defendants argued for the first time in the Supreme Court that the plaintiff’s claims were preempted by the Occupational Safety and Health Act (OSHA), see 29 USC 651 et seq., and MiOSHA, an issue the Court of Appeals did not address because it was not raised in that court. The Supreme Court reversed the judgment of the Court of Appeals in part, holding that the Court of Appeals erred by holding that the plaintiff’s public-policy claim failed. The Supreme Court remanded the case to the Court of Appeals “for further consideration of whether plaintiff has established a prima facie claim that he was discharged in violation of public policy, whether plaintiff’s public-policy claim is nonetheless preempted by either state or federal law, and whether arguments that the claim has been preempted are preserved.” Stegall v Resource Technology Corp, 509 Mich 1086, 1087 (2022). On remand, the Court of Appeals, in a 2-1 published opinion, held that it could consider the unpreserved preemption arguments and that summary disposition in favor of the defendants was appropriate because the public-policy claim is preempted by OSHA and MiOSHA. The Supreme Court has ordered oral argument on the application to address: (1) whether a public-policy claim for retaliation based upon a statute that has an antiretaliation provision still exists under Suchodolski v Mich Consol Gas Co, 412 Mich 692, 695 & n 2 (1982), after this Court’s decision in Dudewicz v Norris Schmid, Inc, 443 Mich 68 (1993), overruled in part on other grounds by Brown v Detroit Mayor, 478 Mich 589, 594 n 2 (2007); and (2) whether the Court of Appeals correctly held that the plaintiff’s public-policy claim was preempted by the Occupational Safety and Health Act, see 29 USC 651 et seq., and the Michigan Occupational Safety and Health Act, MCL 408.1001 et seq., or whether the claim was not preempted because the remedy provided by the statutes is inadequate.
165806
PEOPLE OF THE STATE OF MICHIGAN, (attorney Eric Wanink
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Tuscola CC - Gierhart, A.)
DAVID ALLAN LUCYNSKI, (attorney Bernard Jocuns)
Defendant-Appellant.
The defendant and another motorist, who was traveling in the opposite direction, stopped their vehicles in the middle of a rural dirt road, with their driver’s side windows down, and talked to one another. A deputy sheriff conducted a traffic stop of the defendant for impeding traffic, even though there was no actual traffic on the road at that time. After the two vehicles separated, the deputy followed the defendant’s vehicle.
When the defendant pulled into the driveway of a residence, the deputy pulled his vehicle behind the defendant’s vehicle. The deputy alleges that when he approached the defendant, he noticed odors of marijuana and alcohol and learned that the defendant had no driver’s license. According to the deputy, the defendant was unable to successfully perform field sobriety tests and the deputy found marijuana and alcohol inside the defendant’s vehicle. The deputy arrested the defendant for operating a motor vehicle under the influence of an intoxicating substance. A subsequent blood test revealed the presence of THC, the psychoactive ingredient of marijuana. The defendant was charged with operating a motor vehicle under the influence of alcohol and a controlled substance, driving with a suspended license, and having an open container of alcohol in his vehicle. The district court found that the traffic stop was invalid and refused to bind defendant over to the circuit court for operating while intoxicated. The district court bound defendant over on the other charges, but held that no evidence obtained during the traffic stop could be introduced at trial. The prosecutor appealed, but the circuit court denied leave to appeal. The Court of Appeals granted leave to appeal and reversed the ruling of the district court, holding that actual traffic need not be present for a motorist to be stopped for impeding traffic and that the defendant was not actually subjected to a seizure until the deputy asked for his driver’s license and discovered that he had none. The Supreme Court granted leave to appeal and held that: (1) the defendant was seized at the moment his vehicle was blocked in the driveway by a marked police vehicle; (2) MCL 257.676b(1) is not violated unless the normal flow of traffic has actually been disrupted; and (3) the deputy sheriff’s misunderstanding of the statute was not a reasonable mistake of law. Consequently, the Supreme Court reversed the judgment of the Court of Appeals and remanded the case to that court to determine whether application of the exclusionary rule was the appropriate remedy. People v Lucynski, 509 Mich 618, 657-658 (2022). On remand, the Court of Appeals, in an unpublished opinion, held that application of the exclusionary rule was not a proper remedy. The Supreme Court has ordered oral argument on the application to address whether application of the exclusionary rule is proper where the deputy sheriff had no reasonable suspicion to believe that the defendant violated the law, given that there was no evidence to support the deputy’s hunch that an illegal drug transaction had taken place and the deputy did not make a reasonable mistake of law to the extent that he stopped the defendant for a suspected violation of MCL 257.676b(1).
165554
CHAMAR AVERY, (attorney Paul Matouka)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Murray, C.)
STATE OF MICHIGAN, (attorney Gallant Fish)
Defendant-Appellee.
In 2000, the plaintiff was convicted of second-degree murder. The Court of Appeals affirmed his convictions and the Supreme Court denied his application for leave to appeal. In 2007, a federal district court granted the plaintiff’s petition for a writ of habeas corpus, concluding that the plaintiff had established that his trial counsel was ineffective for failing to investigate and produce alibi witnesses at trial. The federal district court ordered that the State of Michigan either release the plaintiff from custody or afford him a new trial. After the prosecution declined to retry the plaintiff, he filed a claim for compensation under the Wrongful Imprisonment Compensation Act (WICA), MCL 691.1751 et seq., in the Court of Claims. The Court of Claims conducted a bench trial at which six witnesses were called and then entered a judgment of no cause of action, concluding that the plaintiff failed to meet his burden under the WICA of proving by clear and convincing evidence that he did not perpetrate the crime and was not an accomplice or accessory to the acts that were the basis for his conviction. The Court of Appeals affirmed in a 2-1 published opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the procedure used by the Court of Claims to try the plaintiff’s claim under the Wrongful Imprisonment Compensation Act (WICA), MCL 691.1751 et seq., is permissible under the WICA; (2) whether the WICA required the Court of Claims to confine its review to the plaintiff’s new evidence; and (3) whether the Court of Claims erred in concluding that the plaintiff failed to prove by clear and convincing evidence that he did not perpetrate the crime.
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.
Tuesday, April 16
Morning Session – 9:30 a.m.
164900-1
ERIC BRADLEY and JACQUELINE CHUANG, (attorney James Fink)
Plaintiffs-Appellees,
v
(Appeal from Ct of Appeals)
(Washtenaw CC - Connors, T.)
LINDA FRYE-CHAIKEN,
Defendant,
and
BARRY POWERS, (attorney Barry Powers)
Appellant.
———
ERIC BRADLEY and JACQUELINE CHUANG, (attorney James Fink)
Plaintiffs-Appellees,
v
(Appeal from Ct of Appeals)
(Washtenaw CC - Connors, T.)
LINDA FRYE-CHAIKEN,
Defendant,
and
BARRY POWERS, (attorney Barry Powers)
Appellant.
———
Barry Powers became the defendant’s attorney after the plaintiffs were granted summary disposition and after the trial court determined that the defenses and counterclaims asserted by the defendant were frivolous and granted the plaintiffs’ motion for sanctions under MCR 1.109(E)(7). Powers represented the defendant at the evidentiary hearing to determine reasonable attorney fees. The trial court issued an opinion and order granting the plaintiffs’ request for attorney fees jointly and severally against the defendant and her prior and current counsel pursuant to MCL 600.2591. The trial court entered a judgment in favor of the plaintiffs, jointly and severally against the defendant, her current attorney (Powers), and each of the attorneys who had previously represented her. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether the attorney hired to litigate the amount of costs and fees assessed by the trial court was properly found to be jointly and severally responsible, under MCR 1.109(E) or MCL 600.2591(1), for the costs and fees that were incurred prior to the attorney’s appearance in the case, and/or that did not arise out of his representation of the defendant. In addressing that question, the Supreme Court has directed the parties to specifically address: (1) whether, under MCR 1.109(E) or MCL 600.2591(1), all attorneys who represented a client during any portion of a case in which an action or defense was frivolous must be held jointly and severally responsible for costs and fees; and (2) if not, how a court should determine which attorneys should be held liable for costs and fees.
165377
NAWAL DAHER and MOHAMAD JOMAA, Co-Personal Representatives of the ESTATE OF JAWAD JUMAA, a/k/a the ESTATE OF JAWAD JOMAA, (attorney Robert Kamenec)
Plaintiffs-Appellees,
v
(Appeal from Ct of Appeals)
(Wayne CC - Snow, M.)
PRIME HEALTHCARE SERVICES-GARDEN CITY, LLC, d/b/a GARDEN CITY HOSPITAL, KELLY W. WELSH, D.O., and MEAGAN SHADY, D.O., (attorney Daniel Corbet)
Defendants-Appellants.
In this medical malpractice action brought under the wrongful-death act, MCL 600.2922, the plaintiffs allege that the defendants failed to properly diagnose and treat their 13-year-old son, leading to his death. The complaint alleges that the decedent suffered lost earnings and lost earnings capacity. The defendants filed a motion for summary disposition with respect to the plaintiffs’ request for future economic damages, but the trial court denied the motion. The Court of Appeals affirmed in a published opinion. The Supreme Court has granted leave to appeal to address: (1) whether the estate of a child may recover damages for the child’s lost future earnings; and (2) to what specificity future earnings need be shown.
165845
TRUE CARE PHYSICAL THERAPY, PLLC, (attorney Mark Granzotto)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Oakland CC - Valentine, V.)
AUTO CLUB GROUP INSURANCE COMPANY, (attorney James Gross)
Defendant-Appellant.
As part of no-fault reform passed in 2019, the Legislature amended MCL 500.3112, which authorizes healthcare providers to sue insurers for overdue benefits, and enacted MCL 500.3157a, which allows insurers to conduct a utilization review of a healthcare provider’s charges. MCL 500.3157a(5) provides that healthcare providers may appeal an insurer’s utilization review determination to the Department of Insurance and Financial Services (DIFS) and MCL 500.3157a(3) authorizes the DIFS to promulgate administrative rules to implement the provisions of the statute. The DIFS enacted rules as directed, including Mich Admin Code R 500.65, which provides that a healthcare provider may appeal an insurer’s utilization review determination to the DIFS within 90 days of the date of the determination and that the DIFS’s decision is subject to judicial review pursuant to MCL 500.244. The plaintiff provided physical therapy services to a patient who was injured in a motor vehicle accident. After the defendant insurer conducted a utilization review of the plaintiff’s charges and concluded that the plaintiff had exceeded guidelines for physical therapy for the type of injuries being treated, it ceased paying benefits to the plaintiff. The plaintiff filed suit in Oakland Circuit Court pursuant to MCL 500.3112. The defendant moved for summary disposition, arguing among other things that the circuit court lacked subject-matter jurisdiction over the lawsuit because the administrative appeal in MCL 500.3157a(5) is the exclusive remedy for challenging a utilization review determination. The circuit court denied the motion, agreeing with the plaintiff that the cause of action provided in MCL 500.3112 is not premised on any action taken after the utilization review process or the exhaustion of administrative remedies. The circuit court later issued an order accepting the parties’ stipulation to: (1) entry of a final judgment awarding plaintiff $10,813.57 for no-fault benefits, interest, costs, and attorney fees; (2) staying execution and enforcement of the judgment pending appeal; and (3) preserving the defendant’s ability to appeal by right the judgment and all prior orders adverse to it. The Court of Appeals affirmed the circuit court’s orders in a published opinion. The Supreme Court has ordered oral argument on the application to address whether the administrative appeal and judicial review of utilization review determinations set forth in MCL 500.3157a(5) and Mich Admin Code R 500.65 provides the exclusive method for obtaining review of such determinations or whether, as the Court of Appeals concluded, that appeal is merely an alternative to a healthcare provider filing a lawsuit pursuant to MCL 500.3112.
165272
PEOPLE OF THE STATE OF MICHIGAN, (attorney JoEllen Haas)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Ottawa CC - Hulsing, J.)
ARMOND PINSON, (attorney Lindsay Ponce)
Defendant-Appellant.
The defendant pled guilty to third-degree criminal sexual conduct and was sentenced to six months in jail, a downward departure from the guidelines minimum sentence range. The prosecutor appealed, arguing that MCL 769.8(1) requires an indeterminate prison sentence for first-time felony offenses punishable by imprisonment. The Court of Appeals, in a published opinion, vacated the jail sentence and remanded to the trial court for resentencing. The Supreme Court vacated the judgment of the Court of Appeals and remanded for reconsideration because the Court of Appeals relied in part on a version of MCL 769.31(b) that did not become effective until after the defendant was sentenced. On remand, the Court of Appeals, in a published opinion, again vacated the defendant’s sentence and remanded to the trial court for resentencing. The Supreme Court has ordered oral argument on the application to address whether MCL 769.8 requires an indeterminate prison sentence for first-time felony offenders where the offense provides prison as a possible punishment, or whether the statute instead requires that, when a trial court decides to impose a prison sentence, that sentence must be indeterminate.
166305
PATRICIA BATISTA, DAVID BRITTEN, TIMOTHY DONAHUE, AARON GAFFNEY, JOHN HEWITT, RONALD KOEHLER, AMY SWANTEK, CHRIS THOMSON, and MICHIGAN ASSOCIATION OF SUPERINTENDENTS AND ADMINISTRATORS, (attorney Robert Schindler)
Plaintiffs-Appellants,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Murray, C.)
OFFICE OF RETIREMENT SERVICES, MICHIGAN PUBLIC SCHOOL EMPLOYEES RETIREMENT SYSTEM, MICHIGAN PUBLIC EMPLOYEES RETIREMENT SYSTEM BOARD, PUBLIC SCHOOL EMPLOYEES RETIREMENT SYSTEM BOARD MEMBERS, and EXECUTIVE DIRECTOR OF RETIREMENT SERVICES, (attorney Patrick Fitzgerald)
Defendants-Appellees.
The plaintiffs are current or retired public school superintendents and administrators who work or worked under personal employment contracts, not collective bargaining agreements. They brought this action against the defendants in the Court of Claims, arguing that their pension benefits should be higher under the Michigan Public School Employees Retirement Act (the Retirement Act), MCL 38.1301 et seq. Part of the formula for determining such benefits is a member’s “final average compensation.” MCL 38.1303a(3)(f) provides, “Compensation does not include ... [c]ompensation in excess of an amount over the level of compensation reported for the preceding year except increases provided by the normal salary schedule for the current job classification.” Because normal salary schedules are typically set forth in collective bargaining agreements, this case involves the proper interpretation of MCL 38.1303a(3)(f) when there is no collective bargaining agreement, and therefore, no normal salary schedule. Defendant Office of Retirement Services (ORS) created normal salary increase (NSI) schedules to apply in these circumstances. The plaintiffs argue that the ORS did not have the authority to create NSI schedules. The Court of Claims granted the defendants’ motions for summary disposition, denied the plaintiffs’ motion for summary disposition, and dismissed the case. The Court of Appeals, in a published opinion, reversed and remanded for entry of a judgment in favor of the plaintiffs with respect to declaratory relief, holding that the Retirement Act does not authorize the ORS to create and implement NSI schedules. The Supreme Court heard oral argument on the defendants’ application for leave to appeal and (1) affirmed the Court of Appeals’ holding that the ORS lacks the authority to create and implement its own NSI schedules; (2) vacated the judgment of the Court of Appeals to the extent it held that the phrase “normal salary schedule” in MCL 38.1303a(3)(f) refers only to a provision contained in a collective bargaining agreement; (3) reversed the Court of Appeals’ holding that MCL 38.1303a(3)(f) does not govern public school employees who work pursuant to personal employment contracts rather than collective bargaining agreements; and (4) remanded the case to the Court of Appeals to address how MCL 38.1303a(3)(f) applies to public school employees who do not work pursuant to collective bargaining agreements and to address how this holding affects the plaintiffs’ claims in this case. Batista v Office of Retirement Servs, 511 Mich 973 (2023). On remand, the Court of Appeals, in a published opinion, reversed and remanded for entry of judgment in favor of the plaintiffs with respect to declaratory relief and the invalidity of the NSI schedules under the Retirement Act. The Supreme Court has ordered oral argument on the application to address: (1) whether the phrase “normal salary schedule” in MCL 38.1303a(3)(f) refers only to a provision contained in a collective bargaining agreement; and (2) if not, from what other source may a “normal salary schedule” be derived. The Supreme Court has directed the Clerk of the Court to schedule this case for argument at the April 2024 session.
Tuesday, April 16,
Afternoon Session – 1 p.m.
165741
BRIAN MCLAIN, (attorney Christopher Desmond)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Livingston CC - Geddis, S.)
ROMAN CATHOLIC DIOCESE OF LANSING, (attorney Thomas Meagher)
Defendant-Appellee,
and
RICHARD LOBERT and ROMAN CATHOLIC ARCHDIOCESE OF BALTIMORE,
Defendants.
The plaintiff claims that in 1999 he was abused by defendant Father Richard Lobert, who worked at a school where the plaintiff was a 16-year-old student. The plaintiff alleges that he did not discover the connection between his mental health issues and Lobert’s sexual abuse until he revealed the abuse to a therapist in 2020. In 2021, the plaintiff sued Lobert, as well as the Roman Catholic Diocese of Lansing and the Roman Catholic Archdiocese of Baltimore, alleging negligence based on the sexual abuse. The defendants moved for summary disposition under MCR 2.116(C)(7), arguing that the claims were time-barred under the applicable limitations period. The plaintiff argued that his complaint was timely under MCL 600.5851b, which was enacted in 2018. Specifically, the plaintiff relied on MCL 600.5851b(1)(b), which provides that an individual who was the victim of criminal sexual conduct while a minor may commence an action to recover damages at any time before “[t]hree years after the date the individual discovers, or through the exercise of reasonable diligence should have discovered, both the individual’s injury and the causal relationship between the injury and the criminal sexual conduct.” The trial court agreed with the plaintiff and denied the defendants’ motions for summary disposition. The Roman Catholic Diocese of Lansing and the Roman Catholic Archdiocese of Baltimore each appealed. Following consolidation of the two appeals, the Court of Appeals, in a published opinion, reversed the trial court’s ruling and held that summary disposition was appropriate because the plaintiff’s claims were time-barred. The Supreme Court has granted leave to appeal to address: (1) whether the three-year period to commence an action set forth in MCL 600.5851b(1)(b) renders the plaintiff’s lawsuit timely due to his alleged recent discovery of the causal relationship between his purported injuries and the alleged criminal sexual conduct, and, if not, (2) whether, under an analysis of the factors set forth in LaFontaine Saline, Inc v Chrysler Group, LLC, 496 Mich 26, 38-39 (2014), MCL 600.5851b(1)(b) applies retroactively to the time of the wrong such that the plaintiff’s claims were timely filed.
Wednesday, April 17
Morning Session – 9:30 a.m.
165207-8
165207
G.C., by Next Friend CRYSTAL CAVAZOS, (attorney Robert Kamenec)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Genesee CC - Behm, K.)
AMERICAN ATHLETIX, LLC, and DAVISON COMMUNITY SCHOOLS, (attorney Christopher Marker)
Defendants,
and
DANIEL ROMZEK and PHILIP THOM,
Defendants-Appellees.
———
165208
G.C., by Next Friend CRYSTAL CAVAZOS, (attorney Robert Kamenec
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals No. 357966)
(Genesee CC - Behm, K.)
AMERICAN ATHLETIX, LLC, and DAVISON COMMUNITY SCHOOLS, (attorneys Michael Ross, Christopher Marker)
Defendants-Appellees,
and
DANIEL ROMZEK and PHILIP THOM,
Defendants.
A toddler at a football game fell through a gap in a set of bleachers that were designed and installed without risers to close the gap between the floorboards and seating planks. The toddler’s mother sued the school district, its maintenance directors, and a company that twice inspected the bleachers but never quoted the district a price for adding riser planks. The trial court granted summary disposition to the school district on the basis that the alleged design defect did not fit within the government building exception to governmental immunity under Renny v Mich Dep’t of Transp, 478 Mich 490 (2007). The trial court granted summary disposition to the company on the basis that it did not have any relationship with the toddler that evoked a duty of care for his safety. The trial court found a jury question as to the directors’ gross negligence. The plaintiff appealed the grant of the school district’s and company’s motions for summary disposition, and the maintenance directors appealed the denial of their motion for summary disposition. The Court of Appeals, in an unpublished opinion, affirmed the grant of summary disposition to the school district and the company and reversed the trial court’s denial of summary disposition to the maintenance directors. The Supreme Court has ordered oral argument on the application to address whether a governmental agency’s noncompliance with a building code provision constitutes a failure to meet its obligation to repair and maintain a public building, rendering it liable under MCL 691.1406 and Renny v Mich Dep’t of Transp, 478 Mich 490 (2007).
165770
RONALD A. JOSTOCK and SUSAN J. JOSTOCK, (attorney Adam Flory)
Plaintiffs-Appellees,
v
(Appeal from Ct of Appeals)
(Lapeer CC - Holowka, N.)
MAYFIELD TOWNSHIP and MAYFIELD TOWNSHIP BOARD OF TRUSTEES,
Defendants,
and
A2B PROPERTIES, LLC, (attorney Robert Davis)
Defendant-Appellant.
The Lapeer International Dragway is located in a R-1 zoning district in Mayfield Township in Lapeer County. The dragway started in 1968 and historically operated as a nonconforming use with limited hours, as allowed by the township. In 2018, A2B Properties, LLC purchased the dragway and began expanding its facilities and hours of operation. In 2019, nearby landowners sued A2B in circuit court to abate what they characterized as a nuisance, seeking declaratory and injunctive relief. The circuit court entered a preliminary injunction that limited the dragway’s hours. In spring of 2021, A2B filed a petition for rezoning with the township, seeking to have the property rezoned from R-1 to C-2, and then voluntarily filed a conditional rezoning agreement with the township, seeking to have the property rezoned to C-2 subject to certain limitations on the dragway’s hours and operations. In June of 2021, after public hearings and meetings, the township board followed the planning commission’s recommendation and adopted the conditional rezoning agreement and rezoned the property to C-2 subject to the agreement’s terms. A2B immediately filed a motion in the still-pending 2019 circuit court action for relief from the preliminary injunction. The circuit court denied the motion, reasoning that because dragway operations were not a permitted use in the C-2 zoning district, the conditional rezoning that purported to allow the dragway to operate was invalid. Meanwhile, in July of 2021, plaintiffs Ronald and Susan Jostock, who live near the dragway, filed a separate lawsuit against A2B, the township, and the township board of trustees, seeking a declaration that the rezoning was erroneous and an injunction enjoining the rezoning. The defendants filed separate motions for summary disposition. The circuit court denied the motions, denied the plaintiffs’ request for injunctive relief, and granted declaratory relief in favor of the plaintiffs. The circuit court concluded that because a dragway was not a permitted use in the C-2 zoning district, and the conditional rezoning purported to only allow a dragway use, the rezoning was invalid. The Court of Appeals affirmed in a published opinion. The Supreme Court has granted leave to appeal to address: (1) whether MCL 125.3405 allows for uses not otherwise authorized in a particular zone; (2) what mechanism was used to authorize the current use as a dragway, and whether that mechanism is available to authorize or expand the use of the appellant’s property; (3) whether operation of a dragway is an authorized use under C-2; and (4) whether the township’s conditional rezoning of the appellant’s property is valid under MCL 125.3405.
165450
CLEVELAND STEGALL, (attorney Deborah Gordon)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Oakland CC - Anderson, M.)
RESOURCE TECHNOLOGY CORPORATION,
d/b/a BRIGHTWING, and FCA US, LLC, (attorneys Thomas Werner, Carly Machasic
Defendants-Appellees.
The plaintiff was fired from his position at FCA US, LLC, where he was working through staffing agency Resource Technology Corporation, d/b/a Brightwing. He contended that he was fired because he complained to FCA supervisors about asbestos and threatened to and did file a complaint under the Michigan Occupational Safety and Health Act (MiOSHA), MCL 408.1001 et seq. The plaintiff filed a lawsuit against FCA and Brightwing, alleging retaliatory termination under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and termination in violation of public policy. The trial court granted the defendants’ motions for summary disposition, holding that the public-policy claim was preempted by the WPA and that the WPA claim against Brightwing failed because the plaintiff did not have evidence of an adverse employment action by Brightwing and could not prove causation. The Court of Appeals affirmed in a 2-1 unpublished opinion, holding that the plaintiff failed to support a public-policy claim regardless of whether it was preempted and failed to create an issue of fact as to causation on the WPA claim. The Supreme Court heard oral argument on the application. The defendants argued for the first time in the Supreme Court that the plaintiff’s claims were preempted by the Occupational Safety and Health Act (OSHA), see 29 USC 651 et seq., and MiOSHA, an issue the Court of Appeals did not address because it was not raised in that court. The Supreme Court reversed the judgment of the Court of Appeals in part, holding that the Court of Appeals erred by holding that the plaintiff’s public-policy claim failed. The Supreme Court remanded the case to the Court of Appeals “for further consideration of whether plaintiff has established a prima facie claim that he was discharged in violation of public policy, whether plaintiff’s public-policy claim is nonetheless preempted by either state or federal law, and whether arguments that the claim has been preempted are preserved.” Stegall v Resource Technology Corp, 509 Mich 1086, 1087 (2022). On remand, the Court of Appeals, in a 2-1 published opinion, held that it could consider the unpreserved preemption arguments and that summary disposition in favor of the defendants was appropriate because the public-policy claim is preempted by OSHA and MiOSHA. The Supreme Court has ordered oral argument on the application to address: (1) whether a public-policy claim for retaliation based upon a statute that has an antiretaliation provision still exists under Suchodolski v Mich Consol Gas Co, 412 Mich 692, 695 & n 2 (1982), after this Court’s decision in Dudewicz v Norris Schmid, Inc, 443 Mich 68 (1993), overruled in part on other grounds by Brown v Detroit Mayor, 478 Mich 589, 594 n 2 (2007); and (2) whether the Court of Appeals correctly held that the plaintiff’s public-policy claim was preempted by the Occupational Safety and Health Act, see 29 USC 651 et seq., and the Michigan Occupational Safety and Health Act, MCL 408.1001 et seq., or whether the claim was not preempted because the remedy provided by the statutes is inadequate.
165806
PEOPLE OF THE STATE OF MICHIGAN, (attorney Eric Wanink
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Tuscola CC - Gierhart, A.)
DAVID ALLAN LUCYNSKI, (attorney Bernard Jocuns)
Defendant-Appellant.
The defendant and another motorist, who was traveling in the opposite direction, stopped their vehicles in the middle of a rural dirt road, with their driver’s side windows down, and talked to one another. A deputy sheriff conducted a traffic stop of the defendant for impeding traffic, even though there was no actual traffic on the road at that time. After the two vehicles separated, the deputy followed the defendant’s vehicle.
When the defendant pulled into the driveway of a residence, the deputy pulled his vehicle behind the defendant’s vehicle. The deputy alleges that when he approached the defendant, he noticed odors of marijuana and alcohol and learned that the defendant had no driver’s license. According to the deputy, the defendant was unable to successfully perform field sobriety tests and the deputy found marijuana and alcohol inside the defendant’s vehicle. The deputy arrested the defendant for operating a motor vehicle under the influence of an intoxicating substance. A subsequent blood test revealed the presence of THC, the psychoactive ingredient of marijuana. The defendant was charged with operating a motor vehicle under the influence of alcohol and a controlled substance, driving with a suspended license, and having an open container of alcohol in his vehicle. The district court found that the traffic stop was invalid and refused to bind defendant over to the circuit court for operating while intoxicated. The district court bound defendant over on the other charges, but held that no evidence obtained during the traffic stop could be introduced at trial. The prosecutor appealed, but the circuit court denied leave to appeal. The Court of Appeals granted leave to appeal and reversed the ruling of the district court, holding that actual traffic need not be present for a motorist to be stopped for impeding traffic and that the defendant was not actually subjected to a seizure until the deputy asked for his driver’s license and discovered that he had none. The Supreme Court granted leave to appeal and held that: (1) the defendant was seized at the moment his vehicle was blocked in the driveway by a marked police vehicle; (2) MCL 257.676b(1) is not violated unless the normal flow of traffic has actually been disrupted; and (3) the deputy sheriff’s misunderstanding of the statute was not a reasonable mistake of law. Consequently, the Supreme Court reversed the judgment of the Court of Appeals and remanded the case to that court to determine whether application of the exclusionary rule was the appropriate remedy. People v Lucynski, 509 Mich 618, 657-658 (2022). On remand, the Court of Appeals, in an unpublished opinion, held that application of the exclusionary rule was not a proper remedy. The Supreme Court has ordered oral argument on the application to address whether application of the exclusionary rule is proper where the deputy sheriff had no reasonable suspicion to believe that the defendant violated the law, given that there was no evidence to support the deputy’s hunch that an illegal drug transaction had taken place and the deputy did not make a reasonable mistake of law to the extent that he stopped the defendant for a suspected violation of MCL 257.676b(1).
165554
CHAMAR AVERY, (attorney Paul Matouka)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Murray, C.)
STATE OF MICHIGAN, (attorney Gallant Fish)
Defendant-Appellee.
In 2000, the plaintiff was convicted of second-degree murder. The Court of Appeals affirmed his convictions and the Supreme Court denied his application for leave to appeal. In 2007, a federal district court granted the plaintiff’s petition for a writ of habeas corpus, concluding that the plaintiff had established that his trial counsel was ineffective for failing to investigate and produce alibi witnesses at trial. The federal district court ordered that the State of Michigan either release the plaintiff from custody or afford him a new trial. After the prosecution declined to retry the plaintiff, he filed a claim for compensation under the Wrongful Imprisonment Compensation Act (WICA), MCL 691.1751 et seq., in the Court of Claims. The Court of Claims conducted a bench trial at which six witnesses were called and then entered a judgment of no cause of action, concluding that the plaintiff failed to meet his burden under the WICA of proving by clear and convincing evidence that he did not perpetrate the crime and was not an accomplice or accessory to the acts that were the basis for his conviction. The Court of Appeals affirmed in a 2-1 published opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the procedure used by the Court of Claims to try the plaintiff’s claim under the Wrongful Imprisonment Compensation Act (WICA), MCL 691.1751 et seq., is permissible under the WICA; (2) whether the WICA required the Court of Claims to confine its review to the plaintiff’s new evidence; and (3) whether the Court of Claims erred in concluding that the plaintiff failed to prove by clear and convincing evidence that he did not perpetrate the crime.
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