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One Court of Justice Blog

Aug 2017
11
August 11, 2017

COA: Attempted crimes may be felonies for sentencing purposes; co-defendant convictions are used to score offense variables

Michigan’s Sentencing Guidelines are clear, said the Court of Appeals: defendants may do more time, even when acquitted of the crime. In People v. Jackson, No. 332307, the Michigan Court of Appeals reviewed the trial court’s scoring of Offense Variables (OV) 1, 2, and 13. First, a trial court should look at whether the underlying offense for an “attempt” conviction, in this case resisting and obstructing a police officer, is a felony to determine if defendant’s past attempt convictions were “felonious criminal activity” under OV 13.  Second, OVs 1 and 2 are properly scored for use of a weapon, even though the jury acquitted defendant of felony-firearm, because the OVs require all co-defendants to be assessed the same number of points, and the co-defendants here pled guilty to armed robbery.

 

Aug 2017
07
August 07, 2017

COA clarifies scoring of offense variable 4 of the Michigan Sentencing Guidelines regarding psychological injury to the victim

The sentencing guidelines statute indicates that offense variable 4 (“OV 4”) should be scored 10 points where “[s]erious psychological injury requiring professional treatment occurred to the victim.” MCL 777.34(1)(a). In People v Wellman, No. 332429, the Court of Appeals held that a score of 10 points under OV 4 may be appropriate whether or not the victim has undergone psychological treatment. A victim’s statements about psychological injury and other actions demonstrating psychological injury support a score of 10 points for OV 4.
 

Aug 2017
02
August 02, 2017

MSC approves public censure of Sixth Circuit Judge for making disparaging remarks to children in a divorce proceeding

In In re Gorcyca, No. 152831, the Michigan Supreme Court upheld the Judicial Tenure Commission’s (JTC) finding that Sixth Circuit Judge Lisa O. Gorcyca had engaged in judicial misconduct because of her disparaging comments to three children during a contempt hearing; however, the Court overturned the JTC’s recommended sanctions of 30-day suspension without pay and costs of $12,533.73.  Instead, the Court held that public censure alone was sufficient.
 

Jul 2017
27
July 27, 2017

MSC invalidates post hoc causation reasoning

Through an order in Lowery v. Enbridge Energy Limited Partnership, No 151600, the Michigan Supreme Court reversed the determination of the Court of Appeals and ordered summary disposition be entered in favor of the defendant, who was alleged to be liable for plaintiff's bodily injury caused by an oil spill.  The Court concluded that the plaintiff's expert's causation opinion was, essentially, that the plaintiff did not have problems before the spill, and that his health issues developed after the spill.  The Court found that this was fallacious post hoc reasoning and did not support a dispute of material fact on the required element of causation. Justice Markman, joined by Justices Zahra and Wilder, wrote an extensive concurring opinion detailing his view of the expert causation testimony necessary to sustain a toxic tort claim.   

Jul 2017
27
July 27, 2017

COA: Cash value of life insurance policy is exempt from garnishment

In DC Mex Holdings LLC v. Affordable Land LLC, No. 332439, the plaintiff had secured a judgment against an individual defendant and had issued a writ of garnishment seeking to collect against the cash value of that individual's life insurance policy.  In analyzing the relevant statute governing whether these proceeds were exempt, the Court of Appeals noted that the statutory language and intent were designed to protect life insurance policies, including their cash value, for the beneficiary spouse and children.  Thus, the Court of Appeals concluded that the cash value of the policy was exempt from garnishment.

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