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September 27, 2012

MSC Order List: September 26, 2012

The Michigan Supreme Court granted leave to appeal in People v. Musser, limited to the issues of: (1) whether statements in a recording of a police interview of a criminal defendant that vouch for the credibility of a witness, which would be admissible if stated by a trial witness, must be redacted from the recording before the jury views it; or (2) if the jury is allowed to see such a recording without redaction, what circumstances must be present and what, if any, protective measures must be in place. The Court invited the Prosecuting Attorneys Association of Michigan, the Criminal Defense Attorneys of Michigan, and the Criminal Law Section of the State Bar of Michigan to file briefs amicus curiae.

The Michigan Supreme Court directed the Clerk to schedule oral argument in Addison Twp v. Barnhart, on whether to grant the application for leave to appeal or take other action. At oral argument, the parties shall address whether the Court of Appeals erred when it held that, "to the extent that there was testimony to suggest that defendant's operation of a shooting range was for business or commercial purposes, MCL 691.1542a(2)(c) does not provide freedom from compliance with local zoning controls." The Michigan Supreme Court invited the Michigan Municipal League and the Michigan Townships Association to file briefs amicus curiae.

The Michigan Supreme Court directed the Saginaw County Prosecuting Attorney to answer the application for leave to appeal in People v. Young, specifically to address whether, if the defendant's prior conspiracy conviction cannot be scored as a crime against a person pursuant to People v. Bonilla-Machado, 489 Mich 412 (2011), any error was harmless because the defendant has a conviction for assault with intent to commit great bodily harm that would form a basis to score OV-13 at 25 points.

In lieu of granting leave in Fremont Ins Co v. Izenbaard, the Michigan Supreme Court reversed the judgment of the Court of Appeals. The Court of Appeals erred in concluding that the term "premises" as used in the insurance provision at issue must be defined as property that has a building on it. The Michigan Supreme Court remanded the case to the Court of Appeals to address whether the location of the accident was used "in connection with" the insured residence.

In lieu of granting leave in Wells Fargo Bank, NA v. Cherryland Mall Ltd Partnership, the Michigan Supreme Court remanded the case to the Court of Appeals for further proceedings. On remand, the Court of Appeals shall consider its decision in light of the Legislature's recent passage of the Nonrecourse Mortgage Loan Act, 2012 PA 67, MCL 445.1591 et seq., which retroactively prohibits a post closing solvency covenant from being used as a nonrecourse carveout or as a basis for any claim against a borrower, guarantor, or other surety on a nonrecourse loan. The Court denied leave in all other respects.

In lieu of granting leave in In re Duncan, Minors, the Michigan Supreme Court reversed the judgment of the Court of Appeals, for the reasons stated in the Court of Appeals dissenting opinion, and remanded the case to the Court of Appeals for consideration of the issue raised by the respondent but not addressed by the Court of Appeals during its initial review of the case. Justice Marilyn Kelly would deny leave to appeal. In lieu of granting leave to appeal in Michigan Ass'n of Governmental Employees v. State of MI, the Michigan Supreme Court remanded the case to the Court of Appeals for consideration as on leave granted. In lieu of granting leave in People v. Klaassen, No. 144978, the Michigan Supreme Court remanded the case to the Livingston Circuit Court for reconsideration of the defendant's motion to withdraw his guilty plea in light of the Michigan Supreme Court's decision in People v. Cole, 491 Mich 325 (2012).

The Michigan Supreme Court denied bypass in John Guidobono II Revocable Trust Agreement v. Jones. Justices Cavanagh, Marilyn Kelly, and Hathaway would grant leave to appeal prior to decision by the Court of Appeals and would affirm the Livingston Circuit Court's order dismissing the case. The Court denied the applications for leave to appeal in Yergeau v. Bleich, Nos. 144842 and 144844, because it was not persuaded that the questions presented should be reviewed by the Court prior to the completion of the proceedings ordered by the Court of Appeals.

The Michigan Supreme Court denied 8 applications for leave to appeal because it was not persuaded that the questions presented should be reviewed by the Court. Justices Marilyn Kelly and Hathaway would grant leave in Babiarz v. Leslie, and would remand People v. Perry to the trial court for resentencing on the defendant's carjacking and armed robbery convictions.. Justice Kelly would grant leave in People v. Mattison and Command Officers Ass'n of MI v. Charter Twp of Shelby, and would remand the case for resentencing in People v. Klaassen, No. 144980.

The Court denied 3 applications for leave to appeal because the defendant failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Justice Marilyn Kelly would grant leave in People v. Smith.

 

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