The Michigan Supreme Court (MSC) will hear oral arguments in 11 cases on Wednesday, March 12, and Thursday, March 13, 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 12
Morning Session – 9:30 a.m.
165620
PEOPLE OF THE STATE OF MICHIGAN, (attorney Emil Semaan)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Macomb CC - Biernat, J.)
CARL THOMAS MASI, (attorney Alona Sharon)
Defendant-Appellant.
The defendant has been charged with twelve counts of first-degree criminal sexual conduct and four counts of second-degree criminal sexual conduct involving three minor complainants. He brought a pretrial motion in the trial court to admit evidence that the complainants were sexually abused by a different relative before they came to live with him, that two of the complainants viewed pornography, and that the eldest complainant had inappropriately touched one of the younger complainants. The trial court excluded the evidence under the rape shield statute, MCL 750.520j, as applied in People v Morse, 231 Mich App 424, 437 (1998), which held that to admit evidence of a child complainant’s prior sexual abuse, the defendant must establish that another person was convicted of the abuse and that the prior abuse was significantly similar to the allegations against the defendant. The trial court also held that the complainants’ alleged viewing of pornography constituted sexual conduct subject to the rape shield statute. The Court of Appeals, in a published opinion, held that evidence that a complainant viewed pornography, by itself, is not “sexual conduct” subject to the exclusionary bar of the rape shield statute, but remanded the case to the trial court to determine whether the evidence is otherwise admissible under the Michigan Rules of Evidence. In all other respects, the Court of Appeals affirmed the trial court. The Supreme Court has ordered oral argument on the application to address: (1) whether a child complainant’s act of viewing pornography during the course of sexual abuse by a relative constitutes “sexual conduct” for purposes of the rape-shield statute, MCL 750.520j; (2) whether the rape-shield statute precludes the admission of evidence that the child complainants were subjected to prior sexual abuse, to explain their age-inappropriate sexual knowledge, unless the defendant proves that another person was convicted of criminal sexual conduct involving the complainants, and the facts underlying the previous conviction are significantly similar to the charged conduct to be relevant to the instant proceeding, see People v Morse, 231 Mich App 424, 437 (1998); and (3) whether barring evidence of the complainants’ prior sexual abuse and of a complainant’s viewing of pornography during the course of prior sexual abuse would constitute a denial of the defendant’s constitutional right to confrontation or the right to present a defense, see People v Arenda, 416 Mich 1 (1982).
166213
VILLAGE OF KALKASKA, (attorney Jonathan Moothart)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Kalkaska CC - Hunter, C.)
MICHIGAN MUNICIPAL LEAGUE LIABILITY AND PROPERTY POOL, (attorney Mary Massaron)
Defendant-Appellant.
In 1996, the Village of Kalkaska contractually agreed to provide some of its employees with lifetime retirement health benefits. In 2014, the village decided it could no longer afford to pay life benefits and the village council voted to discontinue those benefits. As a result, some of the employees filed lawsuits against the village and the village was found to be liable for breach of contract. The plaintiff village sued its insurer, defendant Michigan Municipal League Liability and Property Pool, for failing to defend and indemnify the plaintiff against the claims brought by the employees. The defendant moved for summary disposition under MCR 2.116(C)(10), arguing that the insurance policy did not provide coverage for the plaintiff’s intentional breach of its contractual obligations regarding these lifetime retirement health benefits. The trial court denied the defendant’s motion, determining that there were questions of fact precluding summary disposition. The Court of Appeals reversed the trial court in an unpublished opinion. The Court of Appeals held that the trial court erred by finding a question of fact and that the trial court should have found that the policy provides coverage and granted summary disposition in favor of the plaintiff. The Supreme Court has ordered oral argument on the application to address: (1) whether the insurance policy provides coverage for the claims at issue that arose from the plaintiff’s 2014 Resolution Discontinuing Trust and Agency Fund and Retirees’ Health Insurance; and (2) whether the Court of Appeals correctly reversed and remanded for entry of judgment for the plaintiff.
166339
PEOPLE OF THE STATE OF MICHIGAN, (attorney Jasmine Davis)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Presque Isle CC - Gauthier, A.)
DARYL WILLIAM MARTIN, (attorney Ali Nathaniel Wright)
Defendant-Appellant.
Following a jury trial, the defendant was convicted of one count of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct. Both counts were predicated upon the victim being under 13 years of age and the defendant being older than 17. The trial court sentenced the defendant to concurrent terms of 25 to 40 years for first-degree criminal sexual conduct and 10 to 15 years for second-degree criminal sexual conduct. The trial court also imposed lifetime electronic monitoring, as required by MCL 750.520n. The defendant filed a post-trial motion arguing, among other issues, that lifetime electronic monitoring violates constitutional protections against unlawful searches and cruel or unusual punishment. The trial court declined to vacate the lifetime electronic monitoring requirement, noting that it was bound by People v Hallak, 310 Mich App 555, 577 (2015), rev’d on other grounds 499 Mich 879 (2016). The Court of Appeals affirmed in an unpublished opinion that also cited Hallak. The Supreme Court has ordered oral argument on the application to address: (1) whether lifetime electronic monitoring, when imposed without an individualized assessment of the defendant’s recidivism risk and without providing a mechanism for removing the monitoring requirement, constitutes cruel and unusual punishment under US Const, Am VIII or cruel or unusual punishment under Const 1963, art 1, § 16, see generally People v Betts, 507 Mich 527 (2021), but see People v Hallak, 310 Mich App 555, 577 (2015), rev’d in part on other grounds 499 Mich 879 (2016); (2) whether lifetime electronic monitoring constitutes cruel and/or unusual punishment as applied in this case; and (3) whether lifetime electronic monitoring constitutes an unreasonable search in violation of US Const, Am IV or Const 1963, art 1, § 11, see State v Grady, 372 NC 509 (2019), and Park v State, 305 Ga 348 (2019), but see Hallak, 310 Mich App at 581. 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 People v Kardasz (Docket No. 165008).
165008
PEOPLE OF THE STATE OF MICHIGAN, (attorney Emil Semaan)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Macomb CC - Servitto, M.)
ROBERT JAMES KARDASZ, (attorney Ali Nathaniel Wright)
Defendant-Appellant.
Following a jury trial, the defendant was convicted of first-degree criminal sexual conduct. The trial court sentenced him to 30 to 45.8 years in prison. The Court of Appeals, in an unpublished opinion, affirmed the defendant’s conviction, but vacated his sentence and remanded the case to the trial court for resentencing because the trial court failed to explain why it exceeded the 25-year statutory minimum. On remand, the trial court sentenced the defendant to 25 to 40 years in prison. The judgment of sentence indicated that upon the defendant’s release, he would be subject to lifetime electronic monitoring and would be required to register as a sex offender under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. The Court of Appeals, in an unpublished opinion, affirmed the trial court’s imposition of lifetime electronic monitoring and lifetime registration under SORA. The defendant filed an application for leave to appeal in the Supreme Court, which held the case in abeyance for People v Lymon (164685). The Supreme Court subsequently ordered oral argument on the application to address: (1) whether requiring the defendant to register as a sex offender under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., as amended by 2020 PA 295, effective March 24, 2021 (the 2021 SORA), for the rest of his life constitutes cruel or unusual punishment under Const 1963, art 1, § 16 or cruel and unusual punishment under US Const, Am VIII; (2) whether lifetime electronic monitoring, when imposed without an individualized assessment of the defendant’s recidivism risk and without providing a mechanism for removing the monitoring requirement, constitutes cruel and unusual punishment under US Const, Am VIII or cruel or unusual punishment under Const 1963, art 1, § 16, see generally People v Betts, 507 Mich 527 (2021), but see People v Hallak, 310 Mich App 555, 577 (2015), rev’d in part on other grounds 499 Mich 879 (2016); (3) whether lifetime electronic monitoring constitutes cruel and/or unusual punishment as applied in this case; and (4) whether lifetime electronic monitoring constitutes an unreasonable search in violation of US Const, Am IV or Const 1963, art 1, § 11, see State v Grady, 372 NC 509 (2019), and Park v State, 305 Ga 348 (2019), but see Hallak, 310 Mich App 555, 581. 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 People v Martin (Docket No. 166339).
166865-6
CHANDRA McDUFFIE, Personal Representative of the ESTATE OF WILLIAM HOWARD McDUFFIE-CONNOR, (attorney Jonathan Marko)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Wayne CC - Gibson, S.)
SCOTT M. NEAL and MEMBERSELECT INSURANCE COMPANY,
Defendants,
and
NSS CONSTRUCTION, INC., (attorney John Schutza)
Defendant-Appellee.
—————
CHANDRA McDUFFIE, Personal Representative of the ESTATE OF WILLIAM HOWARD McDUFFIE-CONNOR, (attorney Jonathan Marko)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Wayne CC - Gibson, S.)
SCOTT M. NEAL and MEMBERSELECT INSURANCE COMPANY,
Defendants,
and
NSS CONSTRUCTION, INC., (attorney John Schutza)
Defendant-Appellee.
The plaintiff’s decedent died when his car was involved in a collision with a dump truck driven by Scott Neal, an employee of NSS Construction, Inc. The plaintiff filed suit against Neal and NSS for negligence and wrongful death, among other claims, in June 2020. In May 2021, the plaintiff filed a motion for sanctions against NSS for spoliation of evidence, arguing that NSS destroyed business records and sold the dump truck knowing that a lawsuit was possible. The trial court granted the motion and struck NSS’s affirmative defenses, prohibited NSS from presenting mitigating evidence, stated that it would give an adverse inference instruction at trial, and ordered NSS to pay sanctions of $3,500. NSS filed a motion for summary disposition under MCR 2.116(C)(8) and (10), which the trial court denied, finding questions of fact existed for trial. NSS filed applications for leave to appeal in the Court of Appeals, challenging both of the trial court’s rulings. The Court of Appeals granted the applications and, in a 2-1 unpublished opinion, vacated the trial court’s sanctions award, reversed its summary disposition ruling, and remanded for entry of an order granting summary disposition in favor of NSS. The Court of Appeals majority held that there is no genuine issue of material fact as to whether the collision resulted from a breach of any duty owed by NSS to the decedent. The Supreme Court has ordered oral argument on the application to address whether the Court of Appeals erred in concluding that: (1) no genuine issue of material fact existed as to whether defendants Neal or NSS Construction, Inc., breached a duty owed to the plaintiff’s decedent, and (2) the trial court abused its discretion in imposing sanctions against NSS for spoliation of evidence.
Wednesday, March 12
Afternoon Session – 1:00 p.m.
165805
PEOPLE OF THE STATE OF MICHIGAN, (attorney Michael Schuitema)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Emmet CC - Deegan, J.)
JAMES RAY BOVEN, (attorney Jayne Carver)
Defendant-Appellant.
The defendant pled guilty to delivery of methamphetamine and was sentenced to 8 to 20 years in prison. He challenges his sentence on the basis that the guidelines minimum sentence range was incorrectly calculated. Defendant argues that his 2011 misdemeanor conviction for disorderly person should not count against him for purposes of applying the ten-year gap rule, MCL 777.50, because it is not an offense that is considered in scoring Prior Record Variable 5 (PRV 5). The ten-year gap rule, which applies to the scoring of PRVs 1 through 5, provides that if ten or more years have elapsed between the discharge date for a sentence for a prior conviction and the commission date of the sentencing offense, the prior conviction and any earlier convictions may not be used in the scoring of the PRVs. The Court of Appeals has held that prior convictions that are not otherwise scorable under the PRVs are properly considered in applying the ten-year gap rule and determining whether a ten-year period exists during which a defendant had no conviction. People v Butler, 315 Mich App 546, 547-548 (2016). The Court of Appeals denied the defendant’s application for leave to appeal. The Supreme Court has ordered oral argument on the application to address whether the Emmet Circuit Court properly scored the defendant’s PRVs. The Supreme Court has directed the parties to include among the issues to be briefed whether People v Butler, 315 Mich App 546 (2016), correctly held that a prior conviction that is not otherwise scorable under the PRVs of the sentencing guidelines could nevertheless be considered in applying the ten-year gap rule, MCL 777.50.
166210
PEOPLE OF THE STATE OF MICHIGAN, (attorney Emil Semaan)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Macomb CC - Biernat, J.)
CHRISTOPHER ROBERT CLINTON, (attorney Jason Eggert)
Defendant-Appellant.
The defendant and the complainant entered into an agreement for the defendant to provide and install a heating and cooling unit in a residential property. The complainant made a deposit of $5,500 for the equipment that was to be installed. According to the complainant, the equipment was neither installed nor provided and he did not receive the return of his deposit. Following a bench trial, the defendant was convicted of larceny by conversion of property with a value of $1,000 or more but less than $20,000, MCL 750.362; MCL 750.356(3)(a). The trial court sentenced the defendant to time served and restitution of $5,500. The Court of Appeals affirmed the trial court in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether the prosecution presented sufficient evidence to support the defendant’s conviction for larceny by conversion under MCL 750.362, and specifically whether the evidence was sufficient to show that the defendant converted the complainant’s property “to his own use,” see People v Christenson, 412 Mich 81, 86 (1981), and that “at the time the property was embezzled, converted, or hidden, the defendant intended to defraud or cheat the owner permanently of that property.” People v Mason, 247 Mich App 64, 72 (2001) (cleaned up).
Thursday, March 13
Morning Session – 9:30 a.m.
166923
PEOPLE OF THE STATE OF MICHIGAN, (attorney Christopher Allen)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Emmet CC - Johnson, C.)
MICHAEL GEORGIE CARSON, (attorney Nicholas Bostic)
Defendant-Appellee.
Following a jury trial, the defendant was convicted of safe breaking, larceny of property valued at $20,000 or more, receiving or concealing stolen property valued at $20,000 or more, larceny from a building, and conspiracy to commit each of those offenses. At trial, the prosecution presented evidence of incriminating text messages found during a search of the defendant’s cell phone. The Court of Appeals reversed the defendant’s convictions in a 2-1 published opinion. The Court of Appeals majority held that the defendant was denied the effective assistance of counsel due to defense counsel’s failure to move to suppress the incriminating text messages on the grounds that the search warrant for the defendant’s cell phone violated the Fourth Amendment’s particularity requirement. The majority reasoned that if defense counsel had advanced such an argument, the trial court would have been obligated to suppress the text messages due to the inapplicability of the good-faith exception to the exclusionary rule. The Supreme Court has granted leave to appeal to address whether the Court of Appeals erred by: (1) holding that the warrant to search the defendant’s cell phone violated the Fourth Amendment’s particularity requirement, see People v Hughes, 506 Mich 512, 538 (2020); (2) failing to sever any valid portions of the search warrant from any invalid portions, see People v Keller, 479 Mich 467, 479 (2007); (3) holding that the good-faith exception to the exclusionary rule did not apply, see People v Goldston, 470 Mich 523, 531 (2004), discussing United States v Leon, 468 US 897, 923 (1984); and (4) finding that trial counsel deprived the defendant of his right to the effective assistance of counsel by failing to move to suppress the evidence obtained from his cell phone on these grounds, see Strickland v Washington, 466 US 668, 687-688 (1984).
166228
MELVIN R. BERLIN REVOCABLE TRUST, RANDY LAMM BERLIN REVOCABLE TRUST, JANIS HEHMEYER TRUST, CAROLE J. NEWTON REVOCABLE TRUST, JEAN I. SMITH REVOCABLE TRUST, and STEPHEN L. SMITH REVOCABLE TRUST, (attorney Stephen van Stempvoort)
Plaintiffs/Counterdefendants-
Appellees,
v
(Appeal from Ct of Appeals)
(Berrien CC - Howard, D.)
THOMAS C. RUBIN, NINA D. RUSSELL, and 14288 LAKESHORE ROAD, LLC, (attorney Mary Massaron)
Defendants/Counterplaintiffs/
Third-Party Plaintiffs-Appellants,
and
SWIFT ESTATES ASSOCIATES, a/k/a SWIFT ESTATES ASSOCIATES, INC., CHRISTOPHER HEHMEYER, and STEPHEN L. SMITH,
Third-Party Defendants-Appellees.
The plaintiffs and the defendants separately own homes located in Swift Estates in Berrien County. The homes are situated next to a private beach along Lake Michigan. As owners of two of these homes, the defendants contracted with a company to use its online platform to market and rent these homes to others for use as seasonal vacation rentals. At issue is whether such short-term residential rentals are permissible under the Declaration of Covenants and Restrictions (the “Declaration”) that governs property use in Swift Estates. The plaintiffs filed a lawsuit, primarily seeking declaratory and injunctive relief to enforce their interpretation of the Declaration as not allowing short-term rentals. The trial court granted summary disposition in favor of the plaintiffs and permanently enjoined the defendants from renting out their properties for use as short-term rentals. All other claims, counterclaims, and third-party claims that were not previously disposed of were dismissed by stipulation. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has granted leave to appeal to address whether a restrictive covenant limiting lot use to “single family residence purposes” unambiguously prohibits all short-term residential rentals.
166642
RESORT PROPERTIES CO-OPERATIVE, (attorney J. Thomas Franco)
Petitioner-Appellant,
v
(Appeal from Ct of Appeals)
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 12
Morning Session – 9:30 a.m.
165620
PEOPLE OF THE STATE OF MICHIGAN, (attorney Emil Semaan)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Macomb CC - Biernat, J.)
CARL THOMAS MASI, (attorney Alona Sharon)
Defendant-Appellant.
The defendant has been charged with twelve counts of first-degree criminal sexual conduct and four counts of second-degree criminal sexual conduct involving three minor complainants. He brought a pretrial motion in the trial court to admit evidence that the complainants were sexually abused by a different relative before they came to live with him, that two of the complainants viewed pornography, and that the eldest complainant had inappropriately touched one of the younger complainants. The trial court excluded the evidence under the rape shield statute, MCL 750.520j, as applied in People v Morse, 231 Mich App 424, 437 (1998), which held that to admit evidence of a child complainant’s prior sexual abuse, the defendant must establish that another person was convicted of the abuse and that the prior abuse was significantly similar to the allegations against the defendant. The trial court also held that the complainants’ alleged viewing of pornography constituted sexual conduct subject to the rape shield statute. The Court of Appeals, in a published opinion, held that evidence that a complainant viewed pornography, by itself, is not “sexual conduct” subject to the exclusionary bar of the rape shield statute, but remanded the case to the trial court to determine whether the evidence is otherwise admissible under the Michigan Rules of Evidence. In all other respects, the Court of Appeals affirmed the trial court. The Supreme Court has ordered oral argument on the application to address: (1) whether a child complainant’s act of viewing pornography during the course of sexual abuse by a relative constitutes “sexual conduct” for purposes of the rape-shield statute, MCL 750.520j; (2) whether the rape-shield statute precludes the admission of evidence that the child complainants were subjected to prior sexual abuse, to explain their age-inappropriate sexual knowledge, unless the defendant proves that another person was convicted of criminal sexual conduct involving the complainants, and the facts underlying the previous conviction are significantly similar to the charged conduct to be relevant to the instant proceeding, see People v Morse, 231 Mich App 424, 437 (1998); and (3) whether barring evidence of the complainants’ prior sexual abuse and of a complainant’s viewing of pornography during the course of prior sexual abuse would constitute a denial of the defendant’s constitutional right to confrontation or the right to present a defense, see People v Arenda, 416 Mich 1 (1982).
166213
VILLAGE OF KALKASKA, (attorney Jonathan Moothart)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Kalkaska CC - Hunter, C.)
MICHIGAN MUNICIPAL LEAGUE LIABILITY AND PROPERTY POOL, (attorney Mary Massaron)
Defendant-Appellant.
In 1996, the Village of Kalkaska contractually agreed to provide some of its employees with lifetime retirement health benefits. In 2014, the village decided it could no longer afford to pay life benefits and the village council voted to discontinue those benefits. As a result, some of the employees filed lawsuits against the village and the village was found to be liable for breach of contract. The plaintiff village sued its insurer, defendant Michigan Municipal League Liability and Property Pool, for failing to defend and indemnify the plaintiff against the claims brought by the employees. The defendant moved for summary disposition under MCR 2.116(C)(10), arguing that the insurance policy did not provide coverage for the plaintiff’s intentional breach of its contractual obligations regarding these lifetime retirement health benefits. The trial court denied the defendant’s motion, determining that there were questions of fact precluding summary disposition. The Court of Appeals reversed the trial court in an unpublished opinion. The Court of Appeals held that the trial court erred by finding a question of fact and that the trial court should have found that the policy provides coverage and granted summary disposition in favor of the plaintiff. The Supreme Court has ordered oral argument on the application to address: (1) whether the insurance policy provides coverage for the claims at issue that arose from the plaintiff’s 2014 Resolution Discontinuing Trust and Agency Fund and Retirees’ Health Insurance; and (2) whether the Court of Appeals correctly reversed and remanded for entry of judgment for the plaintiff.
166339
PEOPLE OF THE STATE OF MICHIGAN, (attorney Jasmine Davis)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Presque Isle CC - Gauthier, A.)
DARYL WILLIAM MARTIN, (attorney Ali Nathaniel Wright)
Defendant-Appellant.
Following a jury trial, the defendant was convicted of one count of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct. Both counts were predicated upon the victim being under 13 years of age and the defendant being older than 17. The trial court sentenced the defendant to concurrent terms of 25 to 40 years for first-degree criminal sexual conduct and 10 to 15 years for second-degree criminal sexual conduct. The trial court also imposed lifetime electronic monitoring, as required by MCL 750.520n. The defendant filed a post-trial motion arguing, among other issues, that lifetime electronic monitoring violates constitutional protections against unlawful searches and cruel or unusual punishment. The trial court declined to vacate the lifetime electronic monitoring requirement, noting that it was bound by People v Hallak, 310 Mich App 555, 577 (2015), rev’d on other grounds 499 Mich 879 (2016). The Court of Appeals affirmed in an unpublished opinion that also cited Hallak. The Supreme Court has ordered oral argument on the application to address: (1) whether lifetime electronic monitoring, when imposed without an individualized assessment of the defendant’s recidivism risk and without providing a mechanism for removing the monitoring requirement, constitutes cruel and unusual punishment under US Const, Am VIII or cruel or unusual punishment under Const 1963, art 1, § 16, see generally People v Betts, 507 Mich 527 (2021), but see People v Hallak, 310 Mich App 555, 577 (2015), rev’d in part on other grounds 499 Mich 879 (2016); (2) whether lifetime electronic monitoring constitutes cruel and/or unusual punishment as applied in this case; and (3) whether lifetime electronic monitoring constitutes an unreasonable search in violation of US Const, Am IV or Const 1963, art 1, § 11, see State v Grady, 372 NC 509 (2019), and Park v State, 305 Ga 348 (2019), but see Hallak, 310 Mich App at 581. 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 People v Kardasz (Docket No. 165008).
165008
PEOPLE OF THE STATE OF MICHIGAN, (attorney Emil Semaan)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Macomb CC - Servitto, M.)
ROBERT JAMES KARDASZ, (attorney Ali Nathaniel Wright)
Defendant-Appellant.
Following a jury trial, the defendant was convicted of first-degree criminal sexual conduct. The trial court sentenced him to 30 to 45.8 years in prison. The Court of Appeals, in an unpublished opinion, affirmed the defendant’s conviction, but vacated his sentence and remanded the case to the trial court for resentencing because the trial court failed to explain why it exceeded the 25-year statutory minimum. On remand, the trial court sentenced the defendant to 25 to 40 years in prison. The judgment of sentence indicated that upon the defendant’s release, he would be subject to lifetime electronic monitoring and would be required to register as a sex offender under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. The Court of Appeals, in an unpublished opinion, affirmed the trial court’s imposition of lifetime electronic monitoring and lifetime registration under SORA. The defendant filed an application for leave to appeal in the Supreme Court, which held the case in abeyance for People v Lymon (164685). The Supreme Court subsequently ordered oral argument on the application to address: (1) whether requiring the defendant to register as a sex offender under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., as amended by 2020 PA 295, effective March 24, 2021 (the 2021 SORA), for the rest of his life constitutes cruel or unusual punishment under Const 1963, art 1, § 16 or cruel and unusual punishment under US Const, Am VIII; (2) whether lifetime electronic monitoring, when imposed without an individualized assessment of the defendant’s recidivism risk and without providing a mechanism for removing the monitoring requirement, constitutes cruel and unusual punishment under US Const, Am VIII or cruel or unusual punishment under Const 1963, art 1, § 16, see generally People v Betts, 507 Mich 527 (2021), but see People v Hallak, 310 Mich App 555, 577 (2015), rev’d in part on other grounds 499 Mich 879 (2016); (3) whether lifetime electronic monitoring constitutes cruel and/or unusual punishment as applied in this case; and (4) whether lifetime electronic monitoring constitutes an unreasonable search in violation of US Const, Am IV or Const 1963, art 1, § 11, see State v Grady, 372 NC 509 (2019), and Park v State, 305 Ga 348 (2019), but see Hallak, 310 Mich App 555, 581. 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 People v Martin (Docket No. 166339).
166865-6
CHANDRA McDUFFIE, Personal Representative of the ESTATE OF WILLIAM HOWARD McDUFFIE-CONNOR, (attorney Jonathan Marko)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Wayne CC - Gibson, S.)
SCOTT M. NEAL and MEMBERSELECT INSURANCE COMPANY,
Defendants,
and
NSS CONSTRUCTION, INC., (attorney John Schutza)
Defendant-Appellee.
—————
CHANDRA McDUFFIE, Personal Representative of the ESTATE OF WILLIAM HOWARD McDUFFIE-CONNOR, (attorney Jonathan Marko)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Wayne CC - Gibson, S.)
SCOTT M. NEAL and MEMBERSELECT INSURANCE COMPANY,
Defendants,
and
NSS CONSTRUCTION, INC., (attorney John Schutza)
Defendant-Appellee.
The plaintiff’s decedent died when his car was involved in a collision with a dump truck driven by Scott Neal, an employee of NSS Construction, Inc. The plaintiff filed suit against Neal and NSS for negligence and wrongful death, among other claims, in June 2020. In May 2021, the plaintiff filed a motion for sanctions against NSS for spoliation of evidence, arguing that NSS destroyed business records and sold the dump truck knowing that a lawsuit was possible. The trial court granted the motion and struck NSS’s affirmative defenses, prohibited NSS from presenting mitigating evidence, stated that it would give an adverse inference instruction at trial, and ordered NSS to pay sanctions of $3,500. NSS filed a motion for summary disposition under MCR 2.116(C)(8) and (10), which the trial court denied, finding questions of fact existed for trial. NSS filed applications for leave to appeal in the Court of Appeals, challenging both of the trial court’s rulings. The Court of Appeals granted the applications and, in a 2-1 unpublished opinion, vacated the trial court’s sanctions award, reversed its summary disposition ruling, and remanded for entry of an order granting summary disposition in favor of NSS. The Court of Appeals majority held that there is no genuine issue of material fact as to whether the collision resulted from a breach of any duty owed by NSS to the decedent. The Supreme Court has ordered oral argument on the application to address whether the Court of Appeals erred in concluding that: (1) no genuine issue of material fact existed as to whether defendants Neal or NSS Construction, Inc., breached a duty owed to the plaintiff’s decedent, and (2) the trial court abused its discretion in imposing sanctions against NSS for spoliation of evidence.
Wednesday, March 12
Afternoon Session – 1:00 p.m.
165805
PEOPLE OF THE STATE OF MICHIGAN, (attorney Michael Schuitema)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Emmet CC - Deegan, J.)
JAMES RAY BOVEN, (attorney Jayne Carver)
Defendant-Appellant.
The defendant pled guilty to delivery of methamphetamine and was sentenced to 8 to 20 years in prison. He challenges his sentence on the basis that the guidelines minimum sentence range was incorrectly calculated. Defendant argues that his 2011 misdemeanor conviction for disorderly person should not count against him for purposes of applying the ten-year gap rule, MCL 777.50, because it is not an offense that is considered in scoring Prior Record Variable 5 (PRV 5). The ten-year gap rule, which applies to the scoring of PRVs 1 through 5, provides that if ten or more years have elapsed between the discharge date for a sentence for a prior conviction and the commission date of the sentencing offense, the prior conviction and any earlier convictions may not be used in the scoring of the PRVs. The Court of Appeals has held that prior convictions that are not otherwise scorable under the PRVs are properly considered in applying the ten-year gap rule and determining whether a ten-year period exists during which a defendant had no conviction. People v Butler, 315 Mich App 546, 547-548 (2016). The Court of Appeals denied the defendant’s application for leave to appeal. The Supreme Court has ordered oral argument on the application to address whether the Emmet Circuit Court properly scored the defendant’s PRVs. The Supreme Court has directed the parties to include among the issues to be briefed whether People v Butler, 315 Mich App 546 (2016), correctly held that a prior conviction that is not otherwise scorable under the PRVs of the sentencing guidelines could nevertheless be considered in applying the ten-year gap rule, MCL 777.50.
166210
PEOPLE OF THE STATE OF MICHIGAN, (attorney Emil Semaan)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Macomb CC - Biernat, J.)
CHRISTOPHER ROBERT CLINTON, (attorney Jason Eggert)
Defendant-Appellant.
The defendant and the complainant entered into an agreement for the defendant to provide and install a heating and cooling unit in a residential property. The complainant made a deposit of $5,500 for the equipment that was to be installed. According to the complainant, the equipment was neither installed nor provided and he did not receive the return of his deposit. Following a bench trial, the defendant was convicted of larceny by conversion of property with a value of $1,000 or more but less than $20,000, MCL 750.362; MCL 750.356(3)(a). The trial court sentenced the defendant to time served and restitution of $5,500. The Court of Appeals affirmed the trial court in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether the prosecution presented sufficient evidence to support the defendant’s conviction for larceny by conversion under MCL 750.362, and specifically whether the evidence was sufficient to show that the defendant converted the complainant’s property “to his own use,” see People v Christenson, 412 Mich 81, 86 (1981), and that “at the time the property was embezzled, converted, or hidden, the defendant intended to defraud or cheat the owner permanently of that property.” People v Mason, 247 Mich App 64, 72 (2001) (cleaned up).
Thursday, March 13
Morning Session – 9:30 a.m.
166923
PEOPLE OF THE STATE OF MICHIGAN, (attorney Christopher Allen)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Emmet CC - Johnson, C.)
MICHAEL GEORGIE CARSON, (attorney Nicholas Bostic)
Defendant-Appellee.
Following a jury trial, the defendant was convicted of safe breaking, larceny of property valued at $20,000 or more, receiving or concealing stolen property valued at $20,000 or more, larceny from a building, and conspiracy to commit each of those offenses. At trial, the prosecution presented evidence of incriminating text messages found during a search of the defendant’s cell phone. The Court of Appeals reversed the defendant’s convictions in a 2-1 published opinion. The Court of Appeals majority held that the defendant was denied the effective assistance of counsel due to defense counsel’s failure to move to suppress the incriminating text messages on the grounds that the search warrant for the defendant’s cell phone violated the Fourth Amendment’s particularity requirement. The majority reasoned that if defense counsel had advanced such an argument, the trial court would have been obligated to suppress the text messages due to the inapplicability of the good-faith exception to the exclusionary rule. The Supreme Court has granted leave to appeal to address whether the Court of Appeals erred by: (1) holding that the warrant to search the defendant’s cell phone violated the Fourth Amendment’s particularity requirement, see People v Hughes, 506 Mich 512, 538 (2020); (2) failing to sever any valid portions of the search warrant from any invalid portions, see People v Keller, 479 Mich 467, 479 (2007); (3) holding that the good-faith exception to the exclusionary rule did not apply, see People v Goldston, 470 Mich 523, 531 (2004), discussing United States v Leon, 468 US 897, 923 (1984); and (4) finding that trial counsel deprived the defendant of his right to the effective assistance of counsel by failing to move to suppress the evidence obtained from his cell phone on these grounds, see Strickland v Washington, 466 US 668, 687-688 (1984).
166228
MELVIN R. BERLIN REVOCABLE TRUST, RANDY LAMM BERLIN REVOCABLE TRUST, JANIS HEHMEYER TRUST, CAROLE J. NEWTON REVOCABLE TRUST, JEAN I. SMITH REVOCABLE TRUST, and STEPHEN L. SMITH REVOCABLE TRUST, (attorney Stephen van Stempvoort)
Plaintiffs/Counterdefendants-
Appellees,
v
(Appeal from Ct of Appeals)
(Berrien CC - Howard, D.)
THOMAS C. RUBIN, NINA D. RUSSELL, and 14288 LAKESHORE ROAD, LLC, (attorney Mary Massaron)
Defendants/Counterplaintiffs/
Third-Party Plaintiffs-Appellants,
and
SWIFT ESTATES ASSOCIATES, a/k/a SWIFT ESTATES ASSOCIATES, INC., CHRISTOPHER HEHMEYER, and STEPHEN L. SMITH,
Third-Party Defendants-Appellees.
The plaintiffs and the defendants separately own homes located in Swift Estates in Berrien County. The homes are situated next to a private beach along Lake Michigan. As owners of two of these homes, the defendants contracted with a company to use its online platform to market and rent these homes to others for use as seasonal vacation rentals. At issue is whether such short-term residential rentals are permissible under the Declaration of Covenants and Restrictions (the “Declaration”) that governs property use in Swift Estates. The plaintiffs filed a lawsuit, primarily seeking declaratory and injunctive relief to enforce their interpretation of the Declaration as not allowing short-term rentals. The trial court granted summary disposition in favor of the plaintiffs and permanently enjoined the defendants from renting out their properties for use as short-term rentals. All other claims, counterclaims, and third-party claims that were not previously disposed of were dismissed by stipulation. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has granted leave to appeal to address whether a restrictive covenant limiting lot use to “single family residence purposes” unambiguously prohibits all short-term residential rentals.
166642
RESORT PROPERTIES CO-OPERATIVE, (attorney J. Thomas Franco)
Petitioner-Appellant,
v
(Appeal from Ct of Appeals)
(Tax Tribunal)
TOWNSHIP OF WATERLOO, (attorney Ross Bower)
Respondent-Appellee.
Petitioner Resort Properties Co-Operative is a family-held corporation that owns a parcel of lakefront vacation property in Waterloo Township. Dorothy and William Babbage owned 24% of the petitioner’s shares before they bought an additional 48% of the shares, thus securing 72% of the total shares. The Township did not uncap the taxable value of the property at that time because the total transferred shares did not exceed 50%. See MCL 211.27a(6)(h). After their purchase, and in the same calendar year, the Babbages sold 20% of the petitioner’s shares to other individuals. The Township sent the petitioner a notice of assessment because it determined that 68% of the petitioner’s ownership had been conveyed in the same calendar year, thus triggering an uncapping under MCL 211.27a(6)(h) because more than 50% of the petitioner’s ownership interest had been conveyed. The petitioner appealed the uncapping to the Tax Tribunal after an unsuccessful appeal to the Board of Review. According to the petitioner, the Babbages bought 48% of the petitioner’s shares, sold a fraction of those same shares in the same year, and, therefore, only 48% of the petitioner’s shares were ever conveyed even though some of those shares were conveyed twice. The Tax Tribunal agreed with the Township’s analysis, and the Court of Appeals affirmed in a published opinion. The Supreme Court has ordered oral argument on the application to address whether the Tax Tribunal erred by holding that 68% of the ownership interest in the petitioner’s corporation had been transferred. See MCL 211.27a(6)(h).
166973
MICHIGAN REPUBLICAN PARTY and REPUBLICAN NATIONAL COMMITTEE, (attorney Charles Spies)
Plaintiffs-Appellants,
v
(Appeal from Ct of Appeals)
(Genesee CC - Latchana, M.)
DAVINA DONAHUE, WILLIAM KIM, and STACEY KAAKE, (attorney Christopher Trebilcock
Defendants-Appellees.
Prior to the November 2022 general election, the Michigan Republican Party and Republican National Committee (plaintiffs) objected to the low percentage of Republican election inspectors in Flint serving at precincts and on absentee ballot counting boards (AVCBs). In October 2022, the plaintiffs filed a verified complaint against several members of Flint’s Board of Election Commissioners. The plaintiffs requested a declaratory judgment that the defendants are violating their clear legal duties under MCL 168.674(2) and (5) (appointing equal numbers of inspectors for each election precinct) and MCL 168.765a(2) (appointing equal numbers of inspectors for AVCBs). The plaintiffs also requested a writ of mandamus compelling the defendants to satisfy their clear legal duties. The circuit court entered an order denying the request for a writ of mandamus and dismissing the case due to the plaintiffs’ lack of standing. After the November 2022 general election, the plaintiffs appealed as of right. The Court of Appeals affirmed in a 2-1 published opinion. The Supreme Court has ordered oral argument on the application to address whether the lower courts erred by holding that neither plaintiff has standing to pursue their claims for declaratory or mandamus relief, see Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349 (2010), and more specifically: (1) whether the statutory scheme governing the appointment of election inspectors clearly implies that the Legislature intended to confer standing on the major political parties to enforce the partisan-parity mandate of MCL 168.674(2); (2) whether either plaintiff has standing to seek a writ of mandamus based on a special injury, right, or substantial interest that was and will continue to be detrimentally affected in a manner different from the citizenry at large; and (3) whether either plaintiff has standing to seek a declaratory judgment because it meets the requirements under MCR 2.605.
TOWNSHIP OF WATERLOO, (attorney Ross Bower)
Respondent-Appellee.
Petitioner Resort Properties Co-Operative is a family-held corporation that owns a parcel of lakefront vacation property in Waterloo Township. Dorothy and William Babbage owned 24% of the petitioner’s shares before they bought an additional 48% of the shares, thus securing 72% of the total shares. The Township did not uncap the taxable value of the property at that time because the total transferred shares did not exceed 50%. See MCL 211.27a(6)(h). After their purchase, and in the same calendar year, the Babbages sold 20% of the petitioner’s shares to other individuals. The Township sent the petitioner a notice of assessment because it determined that 68% of the petitioner’s ownership had been conveyed in the same calendar year, thus triggering an uncapping under MCL 211.27a(6)(h) because more than 50% of the petitioner’s ownership interest had been conveyed. The petitioner appealed the uncapping to the Tax Tribunal after an unsuccessful appeal to the Board of Review. According to the petitioner, the Babbages bought 48% of the petitioner’s shares, sold a fraction of those same shares in the same year, and, therefore, only 48% of the petitioner’s shares were ever conveyed even though some of those shares were conveyed twice. The Tax Tribunal agreed with the Township’s analysis, and the Court of Appeals affirmed in a published opinion. The Supreme Court has ordered oral argument on the application to address whether the Tax Tribunal erred by holding that 68% of the ownership interest in the petitioner’s corporation had been transferred. See MCL 211.27a(6)(h).
166973
MICHIGAN REPUBLICAN PARTY and REPUBLICAN NATIONAL COMMITTEE, (attorney Charles Spies)
Plaintiffs-Appellants,
v
(Appeal from Ct of Appeals)
(Genesee CC - Latchana, M.)
DAVINA DONAHUE, WILLIAM KIM, and STACEY KAAKE, (attorney Christopher Trebilcock
Defendants-Appellees.
Prior to the November 2022 general election, the Michigan Republican Party and Republican National Committee (plaintiffs) objected to the low percentage of Republican election inspectors in Flint serving at precincts and on absentee ballot counting boards (AVCBs). In October 2022, the plaintiffs filed a verified complaint against several members of Flint’s Board of Election Commissioners. The plaintiffs requested a declaratory judgment that the defendants are violating their clear legal duties under MCL 168.674(2) and (5) (appointing equal numbers of inspectors for each election precinct) and MCL 168.765a(2) (appointing equal numbers of inspectors for AVCBs). The plaintiffs also requested a writ of mandamus compelling the defendants to satisfy their clear legal duties. The circuit court entered an order denying the request for a writ of mandamus and dismissing the case due to the plaintiffs’ lack of standing. After the November 2022 general election, the plaintiffs appealed as of right. The Court of Appeals affirmed in a 2-1 published opinion. The Supreme Court has ordered oral argument on the application to address whether the lower courts erred by holding that neither plaintiff has standing to pursue their claims for declaratory or mandamus relief, see Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349 (2010), and more specifically: (1) whether the statutory scheme governing the appointment of election inspectors clearly implies that the Legislature intended to confer standing on the major political parties to enforce the partisan-parity mandate of MCL 168.674(2); (2) whether either plaintiff has standing to seek a writ of mandamus based on a special injury, right, or substantial interest that was and will continue to be detrimentally affected in a manner different from the citizenry at large; and (3) whether either plaintiff has standing to seek a declaratory judgment because it meets the requirements under MCR 2.605.
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