COA reminder: Clerk's office staffed late on Election Day for election-related matters

Posted on the Michigan Court of Appeals website this morning:

The Court of Appeals and Court of Claims Clerk's Offices will be staffed until 9:00 p.m. on Election Day to respond as necessary to any election related matters that arise.  While the offices will not be open to the public, staff will be available by phone.  To contact either Clerk's Office from 5:00 to 9:00 p.m., phone (313) 972-5678. Read More

COA requires trial to prove consent as an exception to the warrant requirement under §1983

Consent to a residence search may provide police with a way around the warrant requirement under the Fourth Amendment, but it won’t get them around the need for a trial. In Lavigne v. Forshee, No. 312530, a §1983 action, the Court of Appeals ruled that where an officer is searching a residence without a warrant and factual disputes exist as to whether valid consent to the search was given, the scope of that supposed consent, or whether the consent was at any time revoked, summary disposition is improper. In addition, the court held that qualified immunity was no defense at the summary disposition phase because when viewed in the light most favorable to plaintiffs, a reasonably competent officer should know that voluntary consent cannot be inferred from mere non-verbal acquiescence to an officer’s claim of lawful authority in the absence of a warrant. Read More

MLive Media Group endorses Zahra, Redford, & Viviano for MSC

The MLive Media Group Editorial Board has endorsed incumbents Brian Zahra and David Viviano and Kent County Circuit Court Judge James Robert Redford in next Tuesday's election for the Michigan Supreme Court. Read More

MSC proposes to overhaul the rules for MSC appeals

A new sheriff arrived at the Michigan Supreme Court last year, and he's been doing a lot of work on, and a lot of thinking about, how the Court processes its own case load.  It can be no coincidence that one year after new Michigan Supreme Court Chief Clerk Larry Royster's arrival, the Court is now proposing to overhaul the 7.300 Chapter of the Rules of Court.  The Court was already in pretty good shape before he arrived, as shown by the recent survey on the Court office's performance.  But there are always things to improve and modernize.  The new rules are just a proposal at this point, but a significant one for those of us who regularly practice there.  Among many changes, the new rules eliminate the old-school "notice of hearing" for applications and establish firm deadlines for answers to applications.  Over the next few weeks, we'll discuss this and other significant revisions, tell you what we believe the implications are, and identify new uncertainties that will arise if the existing proposal is adopted unrevised. We invite any practitioners with similar or different insights and observations to send an email to greache@wnj.com with "7.300 overhaul" in the subject line. Read More

COA holds that medical marijuana users are entitled to unemployment benefits even if fired for failing a drug test

The Michigan Court of Appeals held that workers who were terminated for failing a drug test were entitled to unemployment benefits because they had a valid medical marijuana card. The court heard Braska v. Challenge Mfg. Co., No. 313932, Kemp v. Hayes Green Breach Mem’l Hosp., No. 315441, and Kudzia v. Avasi Serv., Inc., No 318344, as consolidated appeals. The claimants, a hi-lo operator, a nurse, and furniture repairman, were each fired for failing a drug test, although each had a valid registration identification card under the Michigan Medical Marihuana Act, MCL 333.26421, et seq. Read More

COA: Revocation of Paternity Act changes standing standards

The passage of the Revocation of Paternity Act significantly increased standing for alleged biological fathers to seek legal rights to their children. But as Sprenger v. Bickle, No. 317822, illustrates, not all alleged fathers are covered by this Act. In Sprenger, plaintiff brought a paternity action under the Act alleging to be the biological father of defendant’s child and requesting the court to determine issues of custody, parenting time, and child support. Because the court determined that defendant was married at the time of conception, and that plaintiff knew of that marriage, the plaintiff lacked standing to bring this action and the action was dismissed. Read More

COA: non-dispositional child-removal orders not appealable as of right

In the consolidated case In re McCarrick, No. 315510, the Court of Appeals held that a parent may only appeal as of right a court’s dispositional order that removes a minor from the home, NOT orders issued pending disposition. The Court also concluded that the trial court erred when it failed to consider expert testimony on whether continued custody of an Indian child by the parent is likely to result in serious damage to the child, as required by the Indian Child Welfare Act and Michigan Indian Family Preservation Act. Read More

COA affirms Public Service Commission order granting first ever certificate of necessity for a nuclear power plant

The Michigan Court of Appeals in Association of Business Advocating Tariff Equity v. Indiana Michigan Power Co., No. 314829, affirmed a Michigan Public Service Commission’s (MPSC) order approving a certificate of necessity (CON) for $773.6 million of improvements to the Donald C. Cook Nuclear Power Plant, but not for an additional 10% management reserve.  The CON allows Indiana Michigan Power (I&M) to proceed with significant improvements to the power plant with the guarantee that it will be able recoup its investment through increased electric rates.  Without the CON, I&M would be required to invest the funds improving the Cook plant with the risk that the MPSC might later determine that not all of the costs were recoverable.  The CON was the first for improvements to an existing nuclear power plant. Read More

COA clarifies how to calculate child-support obligations for S-Corp shareholders

How do you determine child support payments for an individual with full control over his own income? This is the question the Michigan Court of Appeals faced in Diez v. Cloma Davey, No. 318910. In Diez, the plaintiff father appealed the trial court’s determinations of parenting time and child support as well as its award of attorney fees in favor of defendant mother. The Court of Appeals upheld both the trial court’s custody determination and award of legal fees to defendant. But the Court held that funds distributed by an S Corporation to shareholders to offset tax payments on earnings retained by the corporation should not be included as income to the shareholder under the Michigan Child Support Formula (MCSF). Read More

COA: 30-yr limit in Summer Resort Owners Act trumped by MI General Corporation Act

The Michigan Court of Appeals in Hogg v. Four Lakes Association, Inc., No 316898, held that the 30-year limit on the existence of an entity created under the Summer Resort Owners Act is superseded by the Michigan General Corporation Act and thus may exist perpetually. Read More
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