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A Better Partnership

April 2014

Apr 2014
April 28, 2014

MSC to decide whether Township, in resolving Tax Tribunal appeal, had power to waive interest on delinquent taxes turned over to the County

In its second trip to the Michigan Supreme Court, Sal-Mar Royal Village, LLC is contesting liability for over $127,000 in property-tax interest allegedly owed to the Macomb County Treasurer.  Sal-Mar originally entered into a consent judgment with Macomb Township that included a provision waiving any penalties and interest due from either party if all taxes or refunds were paid.  Macomb County refused to honor the waiver-of-interest provision, claiming instead that it was not a party to the judgment.  Sal-Mar sought a writ of mandamus from the circuit court to order Macomb County to honor the consent judgment.  The circuit court granted summary disposition to Macomb County, and the Court of Appeals reversed.  Now the MSC has granted leave to appeal. The parties must brief the following issues:

(1)  Whether interest and administrative fees for delinquent taxes assessed pursuant to MCL 211.78a(3) can be waived in a Michigan Tax Tribunal proceeding in which the Macomb County Treasurer was not a party;

(2)  Whether the Macomb County Treasurer was in privity with Macomb Township for purposes of waiving interest and fees under § 78a(3); and

(3)  Whether the plaintiff’s complaint for relief falls under the exclusive jurisdiction of the Tax Tribunal pursuant to MCL 205.731.

Apr 2014
April 28, 2014

MSC rules that grandparents have standing to seek grandparenting time even after father's parental rights are terminated

Grandparents have standing to seek grandparenting time under the Child Custody Act, MCL 722.21 et seq., even after their child's parental rights to the grandchildren are involuntarily terminated, according to the Michigan Supreme Court's peremptory order in Porter v. Hill.  After oral argument on the application, the Michigan Supreme Court held that, "under the circumstances of this case," a biological parent is encompassed by the term “natural parent” in MCL 722.22(e) and (h), regardless of whether the biological parent’s rights have been terminated.  

Apr 2014
April 28, 2014

COA rules that hearsay statements of victim are admissible under the present sense impression and past recollection recorded exceptions

In People v. Chelmicki, the Michigan Court of Appeals held that a victim’s statements given to police after a domestic assault were properly admitted under the present sense impression and past recollection recorded exceptions to the hearsay rule.  The court also held that it was not improper for the trial court to give a jury instruction that offered two different theories on which the jury could base an unlawful imprisonment conviction.  The court reasoned that the theories related to a single element of the offense rather than separate and distinct offenses.

Apr 2014
April 25, 2014

COA holds that WPA plaintiffs must prove their whistleblowing objectively advances the public interest

On remand, in Whitman v. City of Burton, the Court concluded that the Whistleblower Protection Act (“WPA”) requires a plaintiff to prove that his actions were not “objectively contrary to the public interest”—a bar Plaintiff Bruce Whitman could not meet. The Court further held that there was no causal connection between Whitman’s whistleblowing and his termination; therefore, his WPA claim failed for that reason as well.

Apr 2014
April 24, 2014

MSC rules that relatives receive no statutory preference for guardianship after termination of parental rights

A trial court does not need to give preference to a child's relative when considering a petition for guardianship after parental rights have been terminated.   In re COH, ERH, JRG, KBH Minors the Michigan Supreme Court held that the preference, which is found in the Adoption Code at MCL 722.954a, does not apply to guardianship proceedings under MCL 712A.19c.  Instead, the trial court may selectively apply the "best interest of the child" factors, based on the facts of the case. 

Apr 2014
April 20, 2014

COA finds supplying materials to a methamphetamine producer is not “using a weapon” under OVs 1 and 2

In People v. Gary, the Court of Appeals determined the trial court improperly scored offense variables (“OVs”) 1 and 2, where the defendant had supplied his co-conspirator with fuel and batteries necessary for producing methamphetamine.  Here, Gary agreed to purchase materials for the production of methamphetamine for Michael Shearer in exchange for some of the methamphetamine.  After Shearer began making the methamphetamine there was an explosion and Shearer was injured.  Gary pled guilty to “operating or maintaining a methamphetamine lab” under MCL 333.7401c(2)(a).  The trial court scored 20 points under OV 1 for “aggravated use of a weapon” when “[t]he victim was subjected to or exposed to a . . . harmful chemical substance . . . or explosive device.”  The court also scored 15 points under OV 2 for the “lethal potential of the weapon possessed or used.”  Because there was no indication that Gary caused the explosion, or intended to cause an explosion, the court determined that OV 1 and 2 did not apply.  Accordingly, the court vacated the defendant’s sentence and remanded the case for resentencing. 
The Court of Appeals, relying on People v Ball, 297 Mich App 121, 122; 823 NW2d 150 (2012) and People v Lutz, __ Mich __; 836 NW2d 680 (2013), found neither offense variable applied.  The court reasoned that Gary did possess “harmful substances” (i.e., lithium batteries and Coleman fuel), and their use in the methamphetamine lab did create an “explosive device.”  However, as in Ball, Gary did not use the batteries or fuel as a weapon.  There was no indication that Gary attacked Shearer or intended to cause an explosion.  That is, “[i]nvolvement in, or exposure to, a methamphetamine lab or its constituent parts, even if an explosion occurs, without more, does not constitute the use of a weapon.”  Moreover, the court reasoned, the facts of the instant case were very similar to Lutz in which the supreme court determined that the trial court should have scored zero points for OV 1 when the defendant’s methamphetamine lab burned his apartment building.  The court then stated that OV 2 similarly did not apply as Gary’s “crime did not involve the use of a weapon.”  Therefore, as Gary did not use the batteries or fuel as weapons the trial court incorrectly scored both OV 1 and 2.

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