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June 2014

Jun 2014
27
June 27, 2014

MSC holds that only the spouse of a parent with sole legal custody can adopt as stepparent

In In re AJR, the Michigan Supreme Court held that stepparent adoption under MCL 710.51(6) is only available to the spouse of a parent with sole legal custody of the child.  The statute does not apply to situations in which the child’s parents share joint legal custody.  The Court reasoned that, because the Legislature contrasted the phrases “the parent having legal custody” with “the parent who does not have legal custody” in MCL 710.43’s requirements for stepparent adoption by parental consent, it intended “the parent having legal custody” to mean the parent with sole legal custody in both MCL 710.43 and MCL 710.51(6).  The Court rejected petitioners’ argument that the term “legal custody” meant “a legal right to physical custody” when the stepparent adoption statute was added in 1980, based on its review of the joint custody rules added during the same legislative session, as well as its survey of prior caselaw, both of which confirmed that physical and legal custody were distinct concepts by that time.  

Jun 2014
27
June 27, 2014

MSC: Trial court’s failure to comply with seven-day notice provision bars forfeiture of bail bond posted by a surety

The Michigan Supreme Court held in In re Forfeiture of Bail Bond (People v Gaston), Case No. 146033, that where a trial court fails to provide the surety notice of forfeiture within the required seven-day period, MCL 765.28(1) bars forfeiture of the bail bond.  “[W]here a statute provides that a public officer ‘shall’ do something within a specified period of time and that time period is provided to safeguard someone’s rights or the public interest, it is mandatory.”  Accordingly, the Court of Appeals judgment was reversed and the trial court order forfeiting the $50,000 surety bond was vacated.

Jun 2014
27
June 27, 2014

COA: Probable cause did not dissipate after an unsuccessful pat-down and search; suspect’s search, prior to arrest, falls within the search incident to arrest exception

In People v. Nguyen, Case No. 312319, the  Michigan Court of Appeals addressed two seach and seizure issues.  First, the Court concluded that probable cause to arrest a defendant does not disappear after a search of the defendant's vehicle and a pat-down search of his person reveals no illegal substances or other evidence of drug dealing.  Second, the court concluded that even though officers did not arrest the defendant prior to their search that resulted in recovering cocaine, the search fell within the search incident to arrest exception and was therefore unlawful. The court ultiamtely disagreed with Nguyen’s arguments and affirmed the findings of the circuit court.

Jun 2014
27
June 27, 2014

COA holds that duress is not a defense to murder for defendant-accomplice and is not a defense to assault with the intent to commit murder

In People v. Henderson, Case No. 311864, the Michigan Court of Appeals affirmed the long-accepted principle that duress is not a defense to homicide.  The court further concluded that duress is not a defense where the defendant is convicted as an aider and abettor—and not the person who actually carried out the homicide—and is not available where the defendant commits assault with intent to murder.  Accordingly, the Court of Appeals ruled that the trial court properly excluded this jury instruction and affirmed the defendant’s convictions for second-degree murder, assault with intent to commit murder, felon in possession of a firearm, and felony firearm. 

Jun 2014
27
June 27, 2014

MSC holds that filing a complaint is not necessary for interest to accrue on a tax-refund claim

In Ford Motor Co v Department of Treasury, the Michigan Supreme Court held that in order to trigger the accrual of interest under MCL 205.30, a taxpayer must: (1) pay the disputed tax; (2) make a “claim” or “petition” for a refund in no specific form as long as it “clearly demand[s], request[s], or assert[s] a right to a refund of tax payments;” and (3) file the claim or petition in a manner sufficient to provide the Department of Treasury with adequate notice of the taxpayer’s claim. Filing a formal complaint is not the only means of meeting these requirements.

Jun 2014
27
June 27, 2014

MSC holds that business-use exclusion in a non-trucking-use insurance policy excludes coverage only while property is attached to the semi-tractor

In Hunt v Drielick, Nos. 146433, 146434, and 146435, a consolidated appeal, the Michigan Supreme Court addressed the business-use exclusion of an “Insurance for Non-Trucking Use” policy. In a unanimous decision, the Court held that the business-use exclusion in a non-trucking-use insurance policy only precludes coverage when an accident occurs while property is attached to a semi-tractor used in business. Accordingly, the Michigan Court of Appeals erred in placing too much emphasis on the definition of “is used” rather than placing more importance on the phrase “carry property,” in the insurance policy. The Court reversed the Court of Appeals and remanded for further consideration of the exclusion relating to “a leased covered vehicle.”

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