MSC orders amendments to summary disposition, default judgment rules

The Michigan Supreme Court approved a slew of court rule amendments on October 3. The amendments were made to MCR 3.979, MCR 2.116, MCR 2.603  and MCR 9.113(A).

Perhaps the two with the widest effect on the industry are the changes to MCR 2.116 and 2. 603. Both amendments were discussed in the most recent administrative conference on September 27.

The amended MCR 2.603 allows for entry of a default judgment if “the damages amount requested isn’t greater than the amount stated in the complaint.”

The amended MCR 2.116 adds forum selection agreement as grounds for summary disposition under subsection (C)(7).

The remaining two amendments affect juvenile guardianships and grievance procedure. MCR 3.979 was changed to allow continuing court jurisdiction over a guardianship if the Department of Human Services continues to provide subsides after a ward reaches the age of 18, and to require annual review hearings in such cases.

MCR 9.113 was amended to give the grievance administrator “discretion to withhold all or part of respondent’s answer and any supporting documents from the person who filed the request for investigation.” [From staff comment].

MSC orders three initiatives on ballot, kllls one

The Michigan Supreme Court ended a season of electoral silliness by ordering the State Board of Canvassers to put three of the challenged initiatives on the ballot and killing a fourth one.

The court unanimously OKd the following initiatives, finding that they wouldn’t negate, nullify or abrogate other constitutional provisions:

• Protect Our Jobs, which would amend the state constitution to guarantee collective bargaining rights for public employees;
• The People Should Decide, which would require a popular vote for any new international bridge, and;
• Michigan Alliance for Prosperity, which would require a 2/3 vote to raise taxes.

The one initiative for which the Court wouldn’t grant the order of mandamus was Citizens for More Michigan Jobs, which would allow for eight new casinos in Michigan. The court found that the proposal would have nullified the Liquor Control Commission’s control over liquor licenses granted to it in the Michigan Constitution. The court split 4-3 on this initiative in the usual manner.

MSC schedules quickie argument for petition font case

The Michigan Supreme Court granted leave to hear arguments in Stand Up For Democracy v. Secretary of State, et al., also known as the petition font case.

Last month, the Court of Appeals ruled that the signatures collected by the plaintiff could be accepted despite a minor imperfection in the font size of the petition, allowing the emergency manager law to be put to public vote in November. In that decision, the panel criticized the decision on which it based its decision, Bloomfield Charter Twp. v. Oakland County Clerk, asking for a special panel to overturn Bloomfield. The court declined to hold the special panel, necessitating the motion for leave to the Supreme Court.

The court has scheduled an expedited hearing for July 25, 2012.

In the leave order, Chief Justice Robert Young Jr. asked the parties to address definitions of “point” and “type” as they were understood in 1954 and 1965, when the Legislature passed and amended the petition requirement  statutes and whether those definitions should control the issue over how the terms were understood when the statutes were amended again in 1993 and 1998. (The terms apparently weren’t altered or redefined in the later amendments.)

Justice Stephen Markman asked the parties to address how the “point” and “type” should be measured (by size of the printer’s block or the actual printed character) and related issues.

MSC: Court must warn CSC defendant of mandatory lifetime monitoring

A trial court must warn a criminal sexual conduct (CSC) defendant that his guilty plea carries with it mandatory lifetime electronic monitoring by police, the Michigan Supreme Court said in People v. Cole.

The decision is the latest extension of the U.S. Supreme Court’s 2010 Padilla v. Kentucky decision, in which the high court ruled that a defendant must be informed of the mandatory immigration consequences of his guilty plea, because the mandatory consequences were a direct consequence of the crime.

It’s not the first extension of the Padilla rule in Michigan. In People v. Fonville($), the Michigan Court of Appeals ruled that mandatory sex offender registration is a direct consequence of a  conviction, thus the defendant had to be warned of it before he pleaded guilty to child enticement and kidnapping charges.

In February, the Court of Appeals ruled in People v. Gomez($) that the Padilla rule can’t be applied retroactively. Leave to appeal that decision to the Michigan Supreme Court is pending.

Earlier this May, the Court rejected a proposal that would have created a Padilla court rule.

JTC asked to look into Hathaway real estate deals

Ever since WXYZ-TV reported on the questionable circumstances surrounding the short sale of property owned by Michigan Supreme Court Justice Diane Hathaway, the legal community has been buzzing about whether the Judicial Tenure Commission would be investigating.

The JTC, per its standards and practices, has been mum on the subject.

Former John Engler aide and GOP strategist Dan Pero told the Detroit Free Press that he’s asked the JTC to look into whether Hathaway committed fraud in the transaction.

Pero said the basis of his request for investigation was a May 9 report by WXYZ-TV suggesting Hathaway and her husband, attorney Michael Kingsley, transferred residential properties they owned in Michigan and Florida to Kingsley’s adult children to qualify as distressed homeowners and win bank approval for a short sale of another home they owned on Lake St. Clair.

Hathaway’s attorney, Steve Fishman, called Pero’s request a “partisan hit job.”

According to the article, Pero’s wife ran the 2008 campaign of then Chief Justice Clifford Taylor, whom Hathaway ousted to take her seat on the court. Pero insists the history is irrelevant to his request.

Hathaway short sale scrutinized

Justice Diane Hathaway – Photo by Mark Bialek

Another week, another Michigan judge caught up in a TV news gotcha story.

This time, the judge is Michigan Supreme Court Justice Diane Hathaway. According to WXYZ.com, Hathaway received a sweetheart short sale deal on her house on Lake St. Clair.

Last November, she convinced her bank she didn’t have the money to keep making payments on her Michigan home on Lake St. Clair, even though she owned her Florida lakefront home free and clear.

In fact, records show in a little over a year, she’s owned four homes: one in Florida, and three in Grosse Pointe Park.

The homes are a part of a dizzying property shuffle that experts say raise ethical and legal questions, but Justice Hathaway has been ducking those questions for more than six weeks.

WXYZ reported that Hathaway moved her houses out of her name and into her step-children’s names months before she asked for the short sale. After the short sale, the houses were moved back into her name, WXYZ said.

We caught wind of the report yesterday but didn’t have all the details. Carol Lundberg contacted Hathaway’s office but was told the justice was in Marshall for arguments. No one from the office returned the message.

WXYT has video on its page that we can’t embed. You can see the video, complete with the gotcha moment, here.

UPDATE: Chief Justice Robert Young Jr. has released a statement about the allegations:

Ordinarily, the financial transactions of any person, including a Justice, are personal matters.  However, the WXYZ story raises very serious allegations about Justice Diane Hathaway’s financial transactions. I am naturally very concerned about these allegations.

 

Because media allegations are just that and may fail to include a complete picture of a complex set of financial transactions, this morning I advised Justice Hathaway to respond publicly to these allegations to clear the air.  For now, I have no further comment on the WXYZ allegations.

 

Michigan Dems make Supreme Court picks

Over the weekend, the Michigan Democratic Party selected three candidates to endorse in a run for Michigan Supreme Court election.

They are: 46th District Court Judge Sheila Johnson, 3rd Circuit Court Judge Connie Marie Kelley, and University of Michigan professor and Innocence Clinic co-founder Bridget Mary McCormack.

There will be three seats open on the court. One seat is a partial term currently filled by Justice Brian Zahra. He was appointed by Gov. Rick Snyder on Jan. 14, 2011 to fill a vacancy created when Snyder recruited Justice Maura Corrigan to head the Department of Human Services.

Justice Marilyn Kelly’s seat will be open, as she is ineligible to run for re-election because she will be 70 years old in November.

Justice Stephen Markman will have to run for re-election if he wishes to remain on the court; his term ends Jan. 1, 2013.

To see the full slate of candidates, read The Detroit News story here.

MSC remands case on issue of foreseeable of rare drug side effect

In May 2010, the Michigan Court of Appeals ruled that a rare side effect of an anticonvulsant drug was foreseeable for the purposes of a medical malpractice action. The side effect, called Stevens-Johnson syndrome, wound up causing the patient’s death eight days later.

The appeals court upheld the trial court’s determination, stating “the issue is not whether defendants should have foreseen that Jamar would develop this syndrome, but rather whether they should have foreseen the possibility that as a result of taking the medication, Jamar, like any other patient being prescribed the medication, bore a risk of developing the syndrome.”

The court continued, “The evidence shows that [Tegretol] contained warnings that Stevens-Johnson syndrome may result. Thus it was foreseeable that the prescribing of [Tegretol] created a risk, albeit a small one, that Jamar could contract Stevens-Johnson syndrome.”

The court said the unlikelihood of developing the disease does not diminish that it was the proximate cause of the disease, comparing it to the foreseeability of speeding causing an auto accident.

“We are unfamiliar with any body of law that would allow a defendant to argue, let alone a jury to find, that because there are thousands of incidents of speeding that do not result in an auto accident, for each one that does, a defendant’s excessive speed in a given case cannot be considered a proximate cause of the given crash,” the court wrote.

Judge Joel Hoekstra dissented, arguing it should have been a jury question.

In a 4-3 order, the Michigan Supreme Court agreed, reversing the decision and remanding it back to the trial court.

The lower courts erred by granting partial summary disposition to plaintiffs on the issue of proximate causation here. The lower courts presumed that because the development of Stevens-Johnson Syndrome is a known risk of prescribing tegretol, proximate causation is per se established. After presuming that plaintiff could prove negligence, the lower court “collapse[d]” factual and proximate causation such that the two were “essentially indistinguishable,” Jones v Detroit Medical Ctr, 288 Mich App 466, 481 (2010), contrary to traditional standards for determining proximate causation. For a plaintiff to prevail on proximate cause at the summary disposition stage, it must be shown that reasonable minds cannot differ that injury was a foreseeable, natural, and probable consequence of the defendant’s negligence. Here, viewing the evidence in the light most favorable to defendants, there is a question of fact in this regard that should be submitted to the trier of fact rather than decided as a matter of law.

All three Democratic justices dissented. Justice Diane M. Hathaway argued the case was properly decided in the Court of Appeals.

‘Alighting’ ends with both feet on the ground, MSC says

A plaintiff can’t collect personal protection benefits from her no-fault insurer for an injury she suffered from a slip-and-fall while getting out of her car, the Michigan Supreme Court ruled on Thursday. The court reversed a jury verdict in the plaintiff’s favor.

The decision in Frazier v. Allstate Insurance Co. puts a limitation on just how far the phrase “arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle” can be interpreted. Mona Lisa Frazier sued her auto insurer for first-party benefits to cover treatment of an injury she suffered when she stepped on a patch of ice while closing her car door after exiting the vehicle.

At issue was whether she suffered the injury while “alighting” (also known as “exiting”) the vehicle. Signed by the four Republican justices only, the memorandum opinion states that Frazier wasn’t alighting the vehicle when she fell because she had essentially completed the process of exiting the car when both feet were on the ground.

Moreover, that the injury must be sustained “while” alighting indicates that “alighting” does not occur in a single moment but occurs as the result of a process. The process begins when a person initiates the descent from a vehicle and is completed when an individual has effectively “descend[ed] from a vehicle” and has “come to rest”—when one has successfully transferred full control of one’s movement from reliance upon the vehicle to one’s body. This is typically accomplished when “both feet are planted firmly on the ground.” [citiation removed]

Based on the foregoing analysis, plaintiff is not entitled to benefits under the no–fault act because her injury did not arise out of the use of a parked vehicle under MCL 500.3106(1). Plaintiff was injured when she slipped and fell on a patch of ice while closing the passenger door of her vehicle. Plaintiff had placed a few personal items in the passenger compartment via the passenger door, stood up, and stepped out of the way of the door when she closed the door and fell. Insofar as she was in contact with the door of the vehicle at the time of her injury, she was clearly in contact with the vehicle itself, not with “equipment” mounted thereon. Therefore, her injury was not “a direct result of physical contact with equipment permanently mounted on the vehicle . . . .” MCL 500.3106(1)(b). Further, before her injury, plaintiff had been standing with both feet planted firmly on the ground outside of the vehicle; she was entirely in control of her body’s movement, and she was in no way reliant upon the vehicle itself. Therefore, she was not in the process of “alighting from” the vehicle. MCL 500.3106(1)(c). At the time of her injury, plaintiff had already alighted.

Justice Marilyn Kelly, joined by Justice Michael F. Cavanagh, dissented, stating that she would have denied leave to hear the case because a reasonable juror could have concluded that Frazier was alighting the vehicle when she fell. Justice Diane M. Hathaway wrote a separate dissent, arguing that the Supreme Court shouldn’t “take any further action in this unique, fact-specific case that should have no precedential value.

High court reappoints two Oakland judges

Two Oakland County judges were recently reappointed to two-year terms for their benches by the Michigan Supreme Court.

Hon. Nanci J. Grant was reappointed chief judge of the circuit court in for a two-year term effective Jan. 1, 2012, as her first term as chief judge nears an end. She was the youngest woman ever elected to a Michigan circuit court when she won the circuit bench in 1996.

Grant was president of the Michigan Judges Association in 2006, and is vice chair of the Judicial Tenure Commission.

Also, Hon. Linda Hallmark was given another term as chief judge for the Oakland Probate Court, effective Jan. 1, 2012.

First appointed to the probate bench in December 1997, she was named chief judge of the probate court in 2000 and served two consecutive two-year terms. She also was presiding judge of the circuit court’s family division from 2000-04.

Hallmark serves on the executive committee of the Governor’s Task Force on Child Abuse and Neglect, in addition to the executive board of Michigan Inter-Professional Association and the Michigan Family Court Forum.