Communications with mental health crisis line worker are not privileged where defendant made threats of violence against third parties

In People v. Carrier, No. 322020, the Michigan Court of Appeals held that a defendant’s communications with a mental health crisis line worker were not privileged where the defendant made threats of physical violence against reasonably identifiable third persons and he had the apparent intent and ability to carry out the threats in the foreseeable future. Under these circumstances, MCL 330.1946 requires a mental health professional to report the threats to law enforcement authorities.  Accordingly, the court held that this statute operated to waive the otherwise applicable privilege protecting communications between a caller and mental health professional.
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COA concludes that donors’ names are subject to FOIA disclosure

In Bitterman v Village of Oakely, No. 320985, the Court of Appeals held that citizens can request the names of those who donate private funds to public use under the Freedom of Information Act (FOIA) without triggering FOIA’s privacy exemption.  In addition, information regarding police reservists is only exempt from FOIA requests under its law enforcement exemption if their powers and duties actually relate to law enforcement.  Thus, the Court of Appeals reversed the circuit court’s grant of summary disposition in favor of the Village to the extent that the court declined to order disclosure of the names of police fund donors, and remanded for further proceedings as to whether the Village’s police reservists qualify as law enforcement officers or agents within FOIA’s law enforcement exception. Read More

Emergency manager's power to appoint school board official is superior to the board's appointment power, according to COA

Emergency mangers reign supreme when it comes to assigning positions of power within their jurisdiction, as demonstrated in Martin v. Murray, No. 319509.  When the Detroit Public Schools (“DPS”) board of education challenged the school system emergency financial manager’s ability to fill a vacancy on the board when a board member resigned, the Court of Appeals sided with the emergency manager. Though the Board has such authority by statute, so does the emergency manager.  Because the emergency manager law is more recent and specific than that which empowers the Board, the Court resolved the conflict in favor of the emergency manager. Read More

COA affirms torture, home invasion, and assault convictions in one of the worst criminal cases it has ever seen.

In People v Cooper, No. 318159, the Court of Appeals affirmed the jury’s decision to convict the defendant of first-degree home invasion, assault with intent to commit murder, and torture.  Defendant, a 12th habitual offender, has been sentenced to spend the rest of his life in prison.  The details of the home invasion and assault are, according to the Court of Appeals, among the worst it has seen. On appeal, the Defendant argued that his trial court was ineffective for pursuing questions with several witnesses which elicited testimony regarding defendant’s history of drug dealing, for failing to cross-examine one Government witness, and for failing to object to “prosecutorial misconduct”.  The Court of Appeals disagreed and ruled that counsel’s trial strategy was not ineffective, especially, because counsel was, in large part, acting in accordance with defendant’s instructions to discredit the witnesses.  Further, the mere disclosure of a plea agreement, which includes a provision for truthful testimony, does not constitute improper vouching or bolstering of a witness by the prosecutor.  Accordingly, defendant’s trial counsel was not ineffective for failing to object to this testimony.
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Court of Appeals finds Ferris is entitled to attorney fees against law firm for frivolous case

Asserting frivolous claims against Ferris State University will cost Cummings, McClorey, Davis & Acho, P.L.C. and its client nearly $300,000.  In Bonacci v. Ferris State University, Nos. 318136, 319101, the trial court concluded that the law firm, which represents various community colleges, failed to adequately investigate the factual basis of the employment claims it asserted on behalf of Plaintiff Bonacci against Ferris in violation of MCR 2.114.  The Court of Appeals affirmed in part, reversing only the award of appellate fees.
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COA holds that prosecution must provide notice of intent to use other acts evidence in writing or orally in open court under MRE 404(b)(2)

In People v. Johnson, No. 317206, the Michigan Court of Appeals held that if it intends to introduce other acts evidence under MRE 404(b)(1), the prosecution must provide notice in writing or orally in open court. A jury convicted the defendant of second-degree home invasion, MCL 750.110a(3). At trial, a witness testified about a similar burglary that had been linked to the defendant. On appeal, the defendant argued that the witness’s testimony was inadmissible other-acts evidence under MRE 404(b)(1) and MRE 404(b)(2).  
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No showing of “necessity” is required to issue a certificate of “public convenience and necessity” for major electric transmission lines, says COA

What’s in a name?  Though the legislature dubbed it a “certificate of public convenience and necessity,” that does not mean public utilities must prove “necessity” to obtain a certificate for the construction of major transmission lines, according to In re Application of Mich Elec. Transmission Co., Nos. 317872, 317893.  While the application must include information “supporting the need for the [line],” the Court of Appeals observed that none of “Act 30’s” criteria require the Public Service Commission (“PSC”) to determine that the new line is necessary before granting the certificate. MCL 460.567(2)(f).  It also held that local governments cannot exact a stricter standard through their own ordinances. Read More

COA upholds former Assistant Attorney General’s just-cause termination for public anti-gay remarks

In a case that has garnered immense public scrutiny, former Michigan Assistant Attorney General Andrew Shirvell appealed his termination after participating in numerous high-profile television interviews denouncing then president of the University of Michigan’s Student Assembly, Chris Armstong, as a “racist liar,” who used his position to promote his “radical homosexual agenda.”  In Shirvell v. Dep’t of Attorney General, Nos. 314223, 314227, and 316146, the Michigan Court of Appeals affirmed the trial court’s decisions upholding Shirvell’s termination and reversed the trial court’s determination that his actions did not amount to misconduct sufficient to disqualify him for unemployment benefits.  Read More

COA holds municipalities may provide electrical delivery services to customers outside of city limits so long as another utility company is not presently providing such services

The Michigan Court of Appeals in the consolidated opinions of Holland v. Consumers Energy Corp. No 315541 and City of Coldwater v. Consumers Energy, No 320181 held that a customer receiving electrical services by a municipality outside of that municipality's boundary is lawful provided that no other utility company was presently providing the services. Further, the Court held that the Michigan Public Service Commission ("PSC") has no authority to regulate municipal distribution of electrical services. Read More

COA holds that a trial court's decision terminating parental rights under the one-parent rule may be challenged on direct appeal

The Michigan Court of Appeals in In re S. Kanjia Minor, No 320055, vacated its previous order and held that if a parent was not a party to the termination proceedings and had its rights terminated under the one-parent rule that parent may contest the findings on direct appeal. It further held that the Sanders decision has limited retroactive effect. Read More
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