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A Better Partnership

June 2016

Jun 2016
13
June 13, 2016

Don't step over that line: MSC to consider when knock-and-talk amounts to unconstitutional search

In the consolidated cases, People v. Frederick (No. 153115) and People v. Van Doorne (No. 153117), the Michigan Supreme Court will consider when a “knock-and-talk” instigated by police officers amounts to a “search” within the meaning of the Fourth Amendment.  Here, based on information that the defendants had received marijuana butter, officers appeared at defendants’ homes at 4 and 5 AM.  After being invited inside and conducting a search of their homes, officers recovered the marijuana butter and charged the two men with various controlled substances offenses.  The Supreme Court has granted mini-oral argument on the application for leave to appeal to consider whether officers’ actions during this “knock-and-talk” exceeded the general public’s implied-license to approach a home, and therefore was unconstitutional under the Fourth Amendment.   The Court also asked the parties to brief whether the officers’ conduct during this knock-and-talk indicates that they were not intending to speak with the occupant but, rather, that their purpose was to conduct a warrantless search.  The Court of Appeals previously concluded in this case that police do not violate the Fourth Amendment by approaching a home and seeking to speak with its occupant, even if the motive for that contact is to acquire information or evidence as a result of this conversation. 

Jun 2016
13
June 13, 2016

MSC to consider whether a timely filed motion to extend time to file an affidavit of merit, which is not granted until after the limitations period expires, tolls that limitations period

The Michigan Supreme Court granted mini-oral argument on the application for leave to appeal in Castro v. Goulet, No. 152383 to consider whether the filing of a motion for an extension of time to file an affidavit of merit, which is subsequently granted, is sufficient to toll the statute of limitations.
 
The Court of Appeal held that the plaintiffs’ actions in filing the motion to extend the time to file the affidavit of merit for a medical malpractice claim were proper. The court determined that it was outside of the plaintiffs’ control that the trial court failed to grant the motion within the statute of limitations and therefore, the granting of summary disposition in favor of defendants for untimeliness was in clear error.
 
To read our previous blog post about the Court of Appeals’ opinion, click here.

Jun 2016
12
June 12, 2016

COA holds that no additional cause of action is needed to impose after-the-fact individual liability on a shareholder of a judgement-debtor corporation

In Gallagher v Persha, No. 325471 the Michigan Court of Appeals held that a claim to pierce the corporate veil of a single-shareholder corporation could proceed despite there being no underlying cause of action.  Even though piercing the corporate veil is a remedy and not a cause of action, because Plaintiffs already had obtained a judgment against the defendant corporation, the Court of Appeals held that an additional cause of action was not needed to impose liability against a shareholder if the necessary facts for piercing the corporate veil were present.  Accordingly, the Court of Appeals remanded the case for further proceedings to determine whether those facts were present.

Jun 2016
09
June 09, 2016

Defendant’s 11th hour request to represent himself is untimely and denial of request is not grounds to reverse conviction

In People v. Richards, No. 325192, the Michigan Court of Appeals held that a defendant’s constitutional right to self-representation was not violated where the trial court denied defendant’s request to represent himself made, for the first time, on the day of trial.  In reaching this conclusion, the Court of Appeals reiterated that there is no bright-line rule for when a defendant’s request to represent himself is untimely.  Here, however,  the Court of Appeals affirmed the trial court’s decision that defendant’s eleventh hour request was untimely, in light of the fact that defendant was attempting to fire his third court-appointed counsel and had previously declined to assert his right to self-representation when specifically asked by the trial court. 

Jun 2016
09
June 09, 2016

$550 million in public school employee salaries is still being held by the state unconstitutionally, says COA

Though legislative amendments have now made the Public School Employees’ Retirement System constitutional, they did not remedy the constitutional violations that resulted under the prior system, according to AFT Michigan v. State of Michigan, No. 303702.  The prior statute mandated that all public school employees contribute 3% of their salary to a non-vesting retiree health benefit program, with no promise of actually receiving any benefits.  In 2012, the Court of Appeals found this violated the federal and state constitutions on multiple levels; it took property without compensation, impaired pre-existing contracts, and denied substantive due process.  We blogged the earlier decision here.  On remand from the Michigan Supreme Court, the Court of Appeals has reaffirmed its earlier decision, holding that corrections made to the system in the superseding act (such as making contributions voluntary) leaves $550 million in ill-gotten salary contributions in state hands.

Jun 2016
09
June 09, 2016

Incarceration alone does not justify removal of parental rights, says COA

A trial court cannot terminate an incarcerated person’s parental rights without clear and convincing evidence that (a) there is a reasonable likelihood the child will be harmed if returned to the parent or (b) the parent cannot provide proper care or custody for the child, under the recent decision in In re E.W. Pops, No. 328818.  The Court of Appeals' per curiam opinion followed the holding in In re Mason, 486 Mich 142, (2010), that under MCL 712A.19b(3)(g), “Michigan permits an incarcerated parent to achieve proper care and custody thought placement with a relative,” which in this case would be the child’s paternal grandmother.  According to the court, the grandmother’s criminal record did not preclude her from serving as a foster-care provider.

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