CSC and the requirement of a relationship by blood (birth).

In People v Zajaczkowski, __ Mich __ (#143736, 12/19/2012) the Michigan Supreme Court held that a defendant cannot be convicted of CSC 1^st under MCL 750.520b(1)(b)(ii) if the defendant is not related to the victim by blood.  Under MCL 750.520b(1)(b)(ii) the prosecution is required to prove: (1) sexual penetration, (2) a victim who is at least 13 years old but less than 16 years old, and (3) a relationship by blood or affinity to the fourth degree between the victim and the defendant.

A relationship by “blood” is defined as “a relationship between persons arising by descent from a common ancestor” or a relationship “by birth rather than by marriage.” In that regards the civil presumption of legitimacy in domestic related matters cannot be substituted for a blood relationship in order to fulfill this element of the crime charged.

The Court acknowledged the concerns by the prosecution that this interpretation will result in unintended consequences regarding adopted children because if the blood relationship element can only be established through a biological relationship, then a sexual penetration committed by a member of an adoptive family against an adopted minor child may not be punishable under MCL 750.520b(1)(b)(ii). However, such policy concerns are best left to the Legislature to address. It is this Court’s duty to enforce the clear statutory language that the Legislature has chosen.

Sentences for contempt of court are not necessarily consecutive.

In People v Veilleux, __ Mich __ (#145142, 12/18/2012) the Michigan Supreme Court reversed the judgment of the Court of Appeals and ordered the trial court to strike the provisions of the Judgment of sentence that made the sentences for contempt consecutive to each other and consecutive to defendant’s sentence for the underlying felony.

“A consecutive sentence may be imposed only if specifically authorized by statute.” People v Lee, 233 Mich App 403, 405 (1999). Contrary to the lower courts’ holdings, MCL 768.7a(1) does not specifically authorize the consecutive sentences imposed here. MCL 768.7a(1) only applies to “[a] person who is incarcerated in a penal or reformatory institution in this state, or who escapes from such an institution.” When defendant committed the contempts of court at issue here, he was not at the time incarcerated in a penal or reformatory institution and he was not an escapee.

Court ordered funds for a DNA expert witness.

In People v Webb, ___ Mich ___ (#145969, 12/12/2012) the Michigan Supreme Court held that the trial court’s failure to appoint a DNA expert witness deprived the defendant of an opportunity to present a defense to the charged crimes. On remand, the trial court shall provide funds sufficient to permit the defendant to obtain independent DNA testing. Testing shall proceed forthwith, and the results shall be provided to both parties as soon as reasonably possible. Within 56 days of receiving the test results, the defendant may seek further relief, if appropriate, in the trial court.

Failure to timely file a Response to a Motion for summary disposition.

In Citibank, NA v Renner, Unpub Opinion, Per Curiam (#308841, 11/27/2012) the Court of Appeals affirmed the trial court’s Order of dismissal, in part, because of plaintiff’s failure to timely file a brief in opposition to defendants’ Motion for summary disposition.

In Citibank plaintiff filed a complaint against defendants to enforce a promissory note. Defendants moved for summary disposition under MCR 2.116(C)(5), (C)(8), and (C)(10), on the basis that plaintiff did not have standing because it was not a party in interest. The trial court scheduled oral arguments for the motion for December 22, 2011. Two days before the motion hearing, the trial court had not received plaintiff’s response. (Plaintiff maintains it mailed the response on December 16, 2011, and attached to it was paperwork showing plaintiff purchased defendants’ mortgage and note and, therefore, had standing to bring suit.) On December 22, 2011, the trial court granted defendants’ motion for summary disposition and cancelled oral arguments on the motion. Plaintiff then filed a motion for reconsideration, asking the trial court to consider the documents showing plaintiff, in fact, had standing to bring suit. The trial court denied plaintiff’s motion.

A trial court should grant a summary disposition motion under MCR 2.116(C)(10) when there is no genuine question of material fact and the movant is entitled to a judgment as a matter of law. MCR 2.116(C)(10). “Once the moving party has supported its position by documentary evidence, the burden shifts to the opposing party to set forth specific facts showing that a genuine issue of material fact exists. If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, summary disposition may properly be granted.” Abbott v John E Green Co, 233 Mich App 194, 197-198 (1998).

The Michigan Court Rules require a party to file its response to a motion for summary disposition at least seven days before the hearing on the motion. MCR 2.116(G)(1)(a)(ii). A document is not considered filed until it is delivered to the clerk of the court or to the judge. MCR 2.107(G); Biafore v Baker, 119 Mich App 667, 669 (1982). The trial court is not required to consider a response that was not timely filed. EDI Holdings, LLC v Lear Corp, 469 Mich 1021 (2004). Here, plaintiff plainly did not comply with the rule requiring responses be filed at least seven days before the hearing. The trial court, therefore, acted within its discretion in refusing to consider plaintiff’s untimely response. EDI Holdings, LLC, 469 Mich at 1021. Because plaintiff did not respond to the motion, it did not raise any genuine issue of material fact. MCR 2.116(G)(4) specifically requires a nonmovant to support its position with documentary evidence instead of resting on the allegations and denials in its pleadings. Therefore, defendants were entitled to judgment as a matter of law, and summary disposition was proper because defendants’ undisputed documentary evidence established that plaintiff did not have the right to enforce the note. MCL 440.3301.

Plaintiff argues, however, that the trial court erred in dispensing with oral arguments, and that it could have presented its case at argument instead of filing a brief. A trial court has the discretion to dispense with oral arguments on a motion. MCR 2.119(E)(3). A trial court does not abuse that discretion when it dispenses with oral arguments, even if one party fails to respond to a motion, if it is fairly apprised of the issues that need to be decided. Fisher, 269 Mich App at 252. Here, the trial court was apprised of all the issues because “[w]ithout [plaintiff’s] argument, [defendants’] position required no further elaboration.” Id.  

Plaintiff argues that the trial court erred in dispensing with oral arguments because, per MCR 2.119(E)(4), a party can file a response or appear at the motion hearing, and therefore, plaintiff did not have to file a response and could have appeared at oral arguments instead. “[I]t is a settled rule of statutory construction that where a statute contains a specific statutory provision and a related, but more general, provision, the specific one controls.” In re Haley, 476 Mich 80, 198 (2006). [“[T]he rules governing the interpretation of statutes apply with equal force to the interpretation of court rules.” Colista v Thomas, 241 Mich App 529, 535 (2000).] Even if MCR 2.119(E)(4) could be read to support plaintiff’s contention that it could forgo filing a response and instead only appear at oral arguments, MCR 2.116(G)(4) specifically requires a party to oppose a (C)(10) motion with affidavits or other documentary evidence, and that rule controls.

Plaintiff argues that the trial court erred in denying its motion for reconsideration. To warrant reconsideration, a moving party “must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.” MCR 2.119(F)(3). Here, plaintiff has failed to demonstrate any error made by the trial court. It simply wishes the trial court to reconsider its decision to not consider plaintiff’s untimely brief. Therefore, the trial court did not err in denying plaintiff’s motion for reconsideration.

Update on Oral Argument in U.S. Airways, Inc. v. McCutchen, Guest blog by Emily Hootkins (Hoort)

December 10, 2012 | Posted by Emily Catherine Hootkins |

On November 27, 2012, the Supreme Court heard oral argument in US Airways, Inc. v. McCutchen. The question presented before the Supreme Court was “whether. . . Section 502(a)(3) of the Employee Retirement Income Security Act (ERISA) authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even where the plan’s terms give it an absolute right to full reimbursement.” Despite the specificity of this question, the topics considered during oral argument were far-reaching and suggest that the Supreme Court’s eventual opinion may also stray from answering the narrow question presented.

Appearing on behalf of Petitioner US Airways, Inc., in its capacity as fiduciary and plan administrator of the US Airways, Inc. Employee Benefits Plan, was Neal Kumar Katyal. Mr. Katyal argued that “because the plan’s claim here is one for an equitable lien by agreement . . . equitable defenses . . . offer no help to Respondents.” (Official Transcript – Subject to Final Review (“Transcript) at 4:16-19.) Justice Sotomayor quickly jumped in with the first question, asking “if you go to equity, why aren’t you bound by equity?,” to which Mr. Katyal responded “the rules in equity say that it is the agreement that controls . . . when we’re talking about an equitable lien by agreement.” (Transcript at 4:20-12 and 6:5-8.)

Shortly after Mr. Katyal’s overview of Petitioner’s position, argument was diverted into a discussion of the adequacy of the plan’s reimbursement language. Apparently, during lower court proceedings, the parties cited to and relied upon the Summary Plan Description, rather than the plan itself. Justices Ginsburg, Kennedy and Sotomayor pressed Mr. Katyal to identify controlling plan language. Mr. Katyal responded that Plaintiffs had waived any argument regarding the sufficiency of the plan language, and had even conceded in their brief that the plan language was clear. Justice Scalia supported attempts to gloss over this side argument, asking “I didn’t think we took this case to review the plan. . . . had that point been raised, we would not have taken the case.” (Transcript at 10:10-16.) However, the other Justices attention to this issue raises a real possibility that the Court will revisit its discussion in CIGNA v. Amara regarding the supremacy of plan language in comparison to language in a summary plan description. Of particular interest would be a confirmation for the benefits community that language in a summary plan description can rightfully be given controlling weight if (as in this case) there is no conflicting plan language.

Assistant to the Solicitor General Joseph Palmore argued on behalf of the United States, as amicus curiae. In supporting its position that the common fund doctrine should be considered, Mr. Palmore argued that “a plan can’t add to or subtract from the powers of the court in equity under Section 502(a)(3).” (Transcript at 30:1-3.) He further advocated the position of the United States “strikes the right balance and in particular it avoids the negative recovery scenario that is a particularly harsh result of Petitioner’s position.” (Transcript at 33:2-4.) Chief Justice Roberts pointedly criticized Mr. Palmore for disingenuity in the amicus brief describing the Secretary of Labor’s change from its prior position as based on “further reflection.” (Transcript at 31:20.) Chief Justice Roberts admonished, “It wasn’t further reflection. We have a new secretary now, under a new administration, right?” (Transcript at 31:21-23.)

Arguing on behalf of McCutchen/Respondents was Matthew W.H. Wessler. Mr. Wessler advocated, “in our view, when an insurer sought to enforce through an equitable lien by agreement a claim or a lien on a fund, it must agree to take that relief subject to the way equity would have treated the claim.” (Transcript at 46:1-5.) Thus, Mr. Wessler argued that the plan’s reimbursement should be limited by the common fund doctrine, which would reduce the plan’s claim on the fund by the lien for attorney’s fees expended in securing the fund. Some of the Justices pushed back on this idea, with Justice Ginsburg asking “[w]hy is the plan unjustly enriched by receiving exactly what the plan entitles it to receive?” and Justice Breyer asking “it’s just your lawyer who’s going to come at the end of the queue, okay? What’s – why is that unfair? (Transcript at 40:20-21 and 42:25-43:1-2.)

In sum, oral argument shed some light on the Supreme Court’s current thoughts on McCutchen, while leaving much answered. The ERISA community will now have to sit back and wait to see whether the Supreme Court will resolve the question of whether “equitable defenses” can trump express plan language to limit a plan’s recovery under § 502(a)(3). It will also be interesting to see whether the Court’s eventual opinion revisits a discussion of Amara and the supremacy of plan language.

To see the transcript from the oral argument, click here.

Sanctions for signature by an attorney who is not an attorney of record.

In Thorne v Thorne, Unpub Per Curiam Opinion (#308382, 11/15/2012) the Court of Appeals affirmed the trial court’s order awarding attorney fees to the plaintiff as a sanction for a non attorney of record signing a subpoena for the defendant's attorney of record without including language ‘for’ or ‘with permission’ in violation of MCR 2.114.

MCR 2.114 requires that every document of a party represented by an attorney shall be signed by at least one attorney of record. A party who is not represented by an attorney must sign the document.  If a document is signed in violation of this rule, the court, on the motion of a party or on its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees. The court may not assess punitive damages.  In addition to sanctions under this rule, a party pleading a frivolous claim or defense is subject to costs as provided in MCR 2.625(A)(2). The court may not assess punitive damages.

Under the circumstances of this case, the Court of Appeals could not say that the trial court clearly erred when it found that the one attorney’s act of signing her own name and not indicating that her signature was made “for” or “with permission of” the attorney of record was more than a mere clerical error. “Clerical error” can be defined as, “An error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.”  In that MCR 2.114, by its plain language requires the pleading to be signed by the attorney of record, an act of certifying the document by an attorney who was not an attorney of record is not a clerical error because the non attorney of record clearly did not inadvertently or mistakenly sign the subpoena.

MCR 2.116(3)(a) provides that a pleading, appearance, motion, or other paper filed by a law firm on behalf of a client is deemed the appearance of the individual attorney first filing a paper in the action.  Subsection (b) provides that the appearance of an attorney is deemed to be the appearance of every member of the law firm.  Any attorney in the firm may be required by the court to conduct a court ordered conference or trial.

Destruction of evidence (Spoliation) allowing for an inference/presumption

In Doko v Jablonowski & AAA of Michigan, Unpub Per Curiam Opinion, (#306082, 11/15/2012) the Court of Appeals held that the trial court did not err by failing to conclude that AAA intentionally renewed an insurance policy with knowledge of the policy holder’s death. However, AAA should have preserved any files related to the 2003-2004 policy, rather than allow them to be purged from its computers after six years. AAA’s own record retention policy allowed for a “litigation hold” to be placed on information when it was informed of pending litigation. The underwriting files, if any, should not have been purged.

MCR 2.313(B) permits a trial court to impose sanctions for failure to comply with a discovery order. The court rule is inapplicable “in the absence of a discovery order.” Brenner v Kolk, 226 Mich App 149, 159 (1997). Nonetheless, “[a] trial court has the authority, derived from its inherent powers, to sanction a party for failing to preserve evidence that it knows or should know is relevant before litigation is commenced.” Bloemendaal v Town & Country Sports Ctr, Inc, 255 Mich App 207, 211; 659 NW2d 684 (2002), citing MASB-SEG Property/Casualty Pool, Inc, 231 Mich App at 400.

Spoliation can occur in the absence of a discovery order. Brenner, 226 Mich App at 160. Spoliation of evidence occurs when a party either deliberately or accidentally destroys or loses crucial evidence, or when a party fails to preserve such evidence when it is under a duty to preserve evidence that it knows or reasonably should know is relevant to the action. Id. The litigant is under such a duty “[e]ven when an action has not been commenced and there is only a potential for litigation[.]” Id. at 162.

An appropriate consequence for a party’s failure to preserve evidence may be “an instruction to the jury that it may draw an inference adverse to the culpable party from the absence of the evidence.” Brenner, 226 Mich App at 161. There is, however, a procedural and substantive difference between the drawing of an inference and a presumption in favor of the aggrieved party.

The presumption that unproduced evidence would have been adverse can be applied only “where there is evidence of intentional fraudulent conduct and intentional destruction of evidence.” Lagalo v Allied Corp, 233 Mich App 514, 520 (1999). An adverse presumption, if unrebutted, requires the fact finder to “conclude that the unproduced evidence would have been adverse.” Id. at 521. An adverse inference, by contrast, merely permits the fact finder to conclude that the unproduced evidence would have been adverse, the fact-finder is still “free to decide for itself.” Id. at 521.

Discovery in Criminal Cases--criminal records

In People v Sluck, Unpub Per Curiam, (#302215, 11/1/2012) the Court of Appeals held that a prosecutor can be compelled to compile a list of its own witnesses’ criminal records by a review of its own files. In Sluck the defendant had relied on MRE 6.201(A) and requested, in part, that the prosecution disclose the complainant’s criminal history; the prosecuting attorney indicated at the motion hearing that her office had the information in its possession.

Discovery in criminal cases is governed by MCR 6.201.  

MCR 6.201(A), titled “Mandatory Disclosure,” provides in relevant part: [i]n addition to disclosures required by provisions of law other than MCL 767.94a, a party upon request must provide all other parties . . . * * * (4) any criminal record that the party may use at trial to impeach a witness; [and] (5) a description or list of criminal convictions, known to the defense attorney or prosecuting attorney, of any witness whom the party may call at trial . . . . [Emphasis added.]  Because disclosure under MCR 6.201(A) is mandatory, when a party requests information under the court rule, that information must be provided to the requesting party. People v Laws, 218 Mich App 447, 454-455 (1996).

This includes the possibility of juvenile adjudications.  Although not generally admissible at trial, records of juvenile adjudications of a witness other than the accused may be admissible at a criminal trial under MRE 609(e) if “conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission is necessary for a fair determination of the case or proceeding.” Crimes “admissible to attack the credibility of an adult” are covered by MRE 609(a), and are defined as those crimes an essential element of which is dishonesty or false statement, or those crimes an essential element of which involves theft, are punishable by over a year in prison, and which have “significant probative value on the issue of credibility.” People v Parcha, 227 Mich App 236, 241-242 (1997).   And, necessarily, a trial court must have access to criminal records or juvenile adjudications in order to perform its gate-keeping function to determine if they are admissible under MRE 609. Laws, 218 Mich App at 452 (a trial court may conduct an in-camera review to determine if evidence is discoverable); People v Small, 467 Mich 259, 264 (2002), quoting MCL 768.29 (“[i]t shall be the duty of the judge to control all proceedings . . . and to limit the introduction of evidence . . . to relevant and material matters . . .”).

On appeal the people argued in Sluck that Elkhoja II, infra and the LEIN statute prohibited the people from conducting a lien search in behalf of the defendant.  In People v Elkhoja, 658 NW2d 153 (2003) (Elkhoja II), the Supreme Court issued an order that adopted the dissent in People v Elkhoja, 251 Mich App 417 (2002) (Elkhoja I) that in conjunction with MCL 6.201(A)(5), and the LEIN statute a prosecutor cannot be compelled to conduct a LEIN search on behalf of a defendant.  However, the Court of Appeals in Sluck held that this does not prevent the trial court from compelling a prosecutor to compile a list of its own witnesses’ criminal records by review of its own files without resorting to an independent search of the LEIN database. Records of criminal convictions, unearthed by the prosecution in prior cases, are “known” to the prosecution for purposes of MCR 6.201. To hold otherwise would allow prosecutors to remain willfully ignorant of valuable impeachment evidence to which defendants are otherwise entitled.

Supreme Court Briefs Filed in US Airways, Inc. v. McCutchen---Guest blog by Emily Hootkins.

November 9, 2012 | Posted by Emily Catherine Hootkins, ERISA Litigation Group, Alston & Bird.

Briefs have been filed, the date for oral argument is rapidly approaching, and the parties are gearing up to face the Supreme Court in this year’s hot ERISA reimbursement case of US Airways, Inc. v. McCutchen. To briefly recap the facts, in McCutchen the plan sued under ERISA § 502(a)(3) for full reimbursement of medical expenses after a participant recovered limited damages related to injuries sustained in a car accident. The District Court granted summary judgment to US Airways, as plan administrator, based on language in the plan allowing full reimbursement of any monies recovered by the participant. No. 2:08-CV-1593, 2010 WL 3420951 (W.D. Pa. Aug. 30, 2010). On appeal, the Third Circuit vacated and remanded. 663 F.3d 671 (3d Cir. 2011). Citing Amara, the Third Circuit rejected the plan’s claim for full reimbursement by finding that ERISA § 502(a)(3) incorporates traditional equitable defenses. Id. at 678-79. Looking at the facts of the case, the Third Circuit concluded that requiring the participant to provide full reimbursement to the plan (without allowing offset for his attorneys’ fees and expenses) would be “inappropriate and inequitable relief.” Id. at 679.

The Supreme Court granted US Airways’ petition for certiorari on June 25, 2012. The question presented is: “Whether the Third Circuit correctly held--in conflict with the Fifth, Seventh, Eighth, Eleventh, and D.C. Circuits--that ERISA Section 502(a)(3) authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even where the plan’s terms give it an absolute right to full reimbursement.”

On August 29, 2012, US Airways filed its brief on the merits, arguing “Section 502(a)(3) does not empower courts to use free-floating equitable principles to rewrite benefit plans.” (Pet’r’s Brief p. 4.) US Airways gives three rationales for its position. First, § 502(a)(3) only authorizes appropriate equitable relief to “enforce . . . the terms of the plan” and McCutchen’s approach would improperly “obliterate[]” the plan terms. (Id.) Second, the equitable relief sought by US Airways (an equitable lien by agreement) requires a court to enforce the actual agreement of the parties, which allows full reimbursement, rather than rewrite the parties’ agreement. (Id.) Third, US Airways argues that McCutchen’s approach conflicts with the goals of ERISA by making liabilities unpredictable. (Id.) The Third Circuit’s decision is characterized as a threat to the stability of self-funded ERISA plans, as it would discourage employers from offering benefits yet encourage gamesmanship by plan participants in the structuring of settlements. (Id. at pp. 42-50.)

Respondents address these arguments and others in their brief on the merits filed on October 18, 2012. They argue that U.S. Airways’ approach is “neither ‘appropriate’ nor ‘equitable’” as it ignores principles of unjust enrichment in favor of “rote enforcement of contract terms.” (Resp’ts’ Brief p. 2.) Respondents maintain that the Third Circuit’s approach is consistent with how courts would have treated US Airways’ claim in the days of the divided bench, where an insurer’s subrogation claims were limited to a pro rata share of a recovery. (Id. at pp. 13-25.) Further, in equity, Respondents argue that the common fund rule requires that US Airways pay its proportional share of the fees and costs incurred in obtaining the damages recovery. (Id. at pp. 26-32.)

Responding to policy concerns, Respondents argue “the plans have not offered a scintilla of actual evidence that their apocalyptic vision of life under the Third Circuit’s approach will come to pass.” (Id. at p. 48.) “If anything, there is every reason to believe that Petitioner’s full-reimbursement approach would increase litigation costs by making it less likely that tort claimants would be willing to settle cases.” (Id. at p. 54.)

These contentious briefs confirm that this is a Supreme Court case worth following. Many ERISA plans contain “subrogation” or “reimbursement” provisions, and how the Supreme Court resolves the question of whether “equitable defenses” can limit a plan’s recovery under § 502(a)(3) is likely to have a far-reaching impact on related reimbursement and underlying tort litigation.

Oral argument in this case is set for Tuesday, November 27, 2012.

Attorney Fees--Determining the number of hours reasonably expended.

In Adair v State of Michigan, __ Mich App __ (#230858, 11/6/2012) the Court of Appeals held that Plaintiffs failed to carry their burden of proving the number of hours reasonably expended in the litigating of their claim.

The party requesting an award of attorney fees bears the burden of proving the reasonableness of the fees requested. Smith, 481 Mich at 528. Smith establishes an analytical framework to guide the lower courts in the methodology of determining what constitutes a “reasonable fee.” In general terms, the Smith framework requires a trial judge to determine a baseline reasonable hourly or daily fee rate derived from “reliable surveys or other credible evidence” showing the fee customarily charged in the locality for similar legal services. Id. at 530-531, 537. Once the trial judge has determined this hourly rate, the judge must multiply this rate by the reasonable number of hours expended in the case. The product of this calculation serves as the “starting point for calculating a reasonable attorney fee.” Id. at 531, 537. Finally, the trial judge may make up-or-down adjustments to the fee based on certain factors enumerated in Rule 1.5(a) of the Michigan Rules of Professional Conduct and Wood v DAIIE, 413 Mich 573 (1982), and any additional relevant factors. Smith, 481 Mich at 529-531, 537.

In determining the number of hours reasonably expended, the party requesting attorney fees has the burden of supporting their claimed hours with evidentiary support, including detailed billing records, which the opposing party may contest for reasonableness. Smith, 481 Mich at 532; Augustine v Allstate Ins Co, 292 Mich App 408, 432 (2011). An itemized bill of costs by itself is insufficient to establish the reasonableness of the hours claimed. Petterman v Haverhill Farms, Inc, 125 Mich App 30, 33 (1983). Indeed, the trier of fact is not required to accept it on its face, id.; nor is the trier of fact required to accept an attorney’s representation that the hours identified in the bill of costs were reasonably expended, Sturgis Savings and Loan Ass’n v Italian Village, Inc, 81 Mich App 577, 584 (1978); see also Augustine, 292 Mich App at 423. Rather, the fee applicant must demonstrate by documentation or specific testimony or both that the time identified as expended on a billable item was actually and reasonably expended. Augustine, 292 Mich App at 432-434; Petterman, 125 Mich App at 33.

Exceeding the sentencing guidelines; objective and verifiable factors

In People v Anderson, __ Mich App __ (#301701, 10/23/2012) the Court of Appeals upheld the upwards departure on the basis of substantial and compelling reasons that were objective and verifiable.

A court may depart from the appropriate sentence range . . . if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure.” MCL 769.34(3). In order to be substantial and compelling, the reasons on which the trial court relied “must be objective and verifiable.” People v Smith, 482 Mich 292, 299 (2008). “To be objective and verifiable, a reason must be based on actions or occurrences external to the minds of those involved in the decision, and must be capable of being confirmed.” People v Horn, 279 Mich App 31, 43 n 6 (2008). The reasons for departure must also “be of considerable worth in determining the length of the sentence and should keenly or irresistibly grab the court’s attention.” Smith, 482 Mich at 299. However, “[t]he trial court may not base a departure ‘on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from the facts contained in the court record . . . that the characteristic has been given inadequate or disproportionate weight.’” Id. at 300, quoting MCL 769.34(3)(b). Moreover, “the statutory guidelines require more than an articulation of reasons for a departure; they require justification for the particular departure made.” Smith, 482 Mich at 303 (emphasis in original). Thus, “the trial court . . . must justify on the record both the departure and the extent of the departure.” Id. at 313 (emphasis in original).

In Anderson the trial court’s upward departure was supported by other objective and verifiable factors that keenly grabbed the court’s attention, including the planning defendant engaged in, the extreme nature of the victims’ injuries, the victims’ unusual level of psychological trauma, defendant’s pattern of escalating violence toward the victims, and defendant’s inability to benefit from counseling. The trial court stated that it thought any one of the reasons it articulated justified an upward departure. Given the court’s comments, the Court of Appeals was satisfied that the court would have departed to the same degree on the basis of the valid reasons alone.

The existence of the victims’ unusually severe burn injuries was objective and verifiable, and the trial court did not abuse its discretion when it determined that the severity of those injuries was a substantial and compelling reason in support of its sentencing departure.

Although OV 4 accounts for psychological injuries suffered by victims, it does not adequately consider the ways in which an offense affects familial relationships, see People v Armstrong, 247 Mich App 423, 425-426 (2001), nor does it always account for the unique psychological injuries suffered by individual victims. See Smith, 482 Mich at 302.  Under the circumstances of this case, the trial court did not err in finding that the guidelines did not adequately account for the psychological injuries suffered by the victims. Consequently, this was a substantial and compelling reason to depart upward from the guidelines.

The trial court’s sixth basis for departing from the guidelines was that defendant had a propensity to re-offend and was therefore a threat to public safety. A court’s opinion or speculation about a defendant’s future dangerousness is not objective or verifiable. People v Cline, 276 Mich App 634, 651 (2007). But the trial court may base a sentencing departure on a defendant’s future dangerousness if objective and verifiable facts support the court’s conclusion, such as the defendant’s past failures to rehabilitate or demonstrated obsessive or uncontrollable urges to commit certain offenses. Horn, 279 Mich App at 45. Recurring and escalating acts of violence are objective and verifiable because they are external occurrences that can be confirmed. Id. at 46.  In this case, the trial court based its conclusions on objective and verifiable facts. The court noted that defendant had been “diagnosed with symptoms of oppositional defiant disorder” and had not benefitted from the various forms of counseling he had received from a young age. Defendant had threatened, stolen from, and damaged the property of his parents on “numerous occasions.” The trial court determined that defendant’s “escalation of violence” toward his parents was not adequately addressed by the sentencing guidelines. The trial court did not simply state that it thought defendant had a propensity to re-offend—it supported its conclusion with objective, verifiable, external determinations.

CSC 1st requires lifetime monitoring unless defendant is sentenced to life without parole.

In People v Johnson, __ Mich App __ (#302173, 10/16/2012) the defendant was convicted of three counts of CSC I and sentenced to 17-1/2 to 40 years in prison and lifetime electronic monitoring pursuant to MCL 750.520n.  Defendant argued on appeal that he was erroneously ordered to lifetime electronic monitoring because the victim was not less than 13 years old at the time of the offenses. The Court of Appeals disagreed.

MCL 750.520b(2) provides that Criminal sexual conduct in the first degree is a felony punishable as follows: (a) Except as provided in subsections (b) and (c), by imprisonment for life or for any term of years. (b) For a violation that is committed by an individual 17 years of age or older against an individual less than 13 years of age by imprisonment for life or any terms of years, but not less than 25 years. (c) For a violation that is committed by an individual 17 years of age or older against an individual less than 13 years of age, by imprisonment for life without possibility of parole if the person was previously convicted of a violation of this section or section 520c, 520d, 520e, or 520g committed against an individual less than 13 years of age or a violation of law of the United States, another state or political subdivision substantially corresponding to a violation of this section or section 520c, 520d, 520e, or 520g committed against an individual less than 13 years of age.  (d) In addition to any other penalty imposed under subdivision (a) or (b), the court shall sentence the defendant to lifetime electronic monitoring under section 520n.

This section requires three differing prison sentences for first-degree criminal sexual conduct, depending upon the circumstances: (1) imprisonment for life or any term of years; (2) imprisonment for life or any term of years, but not less than 25 years, if the defendant is 17 years or older and the victim is 13 or younger; or (3) imprisonment for life without the possibility of parole, if the defendant was previously convicted of a criminal sexual conduct offense or another attempted CSC offense. The subsection (d) penalty regarding lifetime monitoring is explicitly required to be imposed in addition to the penalties provided in subsections (a) and (b).

The lifetime monitoring penalty specifically does not apply when a defendant is sentenced to prison for life without parole under subsection (c).  

Accordingly, from the plain statutory language of the statute, regardless of the defendant’s and the victim’s age, MCL 750.520b(2) requires lifetime electronic monitoring for first-degree criminal sexual conduct offenses where the defendant has not been sentenced to life in prison without parole.

The judge's role in a Medical Marijuana Section 8 motion.

In People v Anderson, __ Mich App __ (#300641, 9/18/2012) the defendant was arrested after police officers discovered marijuana plants and plant material in his home in June 2009. The prosecutor charged him with manufacturing marijuana, see MCL 333.7401(1) and (2)(d)(iii), and the district court bound Anderson over for trial in March 2010. Id. at 41. In April 2010, Anderson moved for dismissal of the charge under § 8 of the Medical Marijuana Act. Id. at 41-42.

On remand from the Supreme Court, the Court of Appeals further remanded the case to the trial court for an evidentiary hearing under People v Kolanek, 491 Mich 382 (2012).  As set forth in Kolanek, the trial court’s role at the evidentiary hearing is limited: it must determine whether the defendant has presented sufficient evidence from which a reasonable jury could conclude that the defendant established the elements of his or her § 8 defense and then determine, given the evidence presented at the hearing, if there is a material factual dispute concerning one or more of those elements. Id. at 411-413. The trial court may not weigh the evidence, assess credibility, or resolve factual disputes at the hearing. Id. at 411 (“Questions of fact are the province of the jury, while questions of law are reserved to the courts.”). Rather, the trial court must determine—as a matter of law—if the defendant established his or her right to have the charges dismissed under § 8, or if there are material factual disputes that must be resolved by a jury. Id. at 411-413.

Appointment of a DNA expert for the defense.

In People v Webb, Unpub (#305017, 8/16/2012) the Court of Appeals reversed convictions of first-degree home invasion, safe breaking, felon in possession of a firearm, and two counts of felony-firearm. 

At trial DNA evidence was the only evidence linking defendant to the crime. Before trial, defendant requested the appointment of a DNA expert witnessed, which the trial court denied.  According to the Court of Appeals, the trial court abused its discretion in denying defendant’s request for an expert witness.

“Under the Due Process Clause, states may not condition the exercise of basic trial and appeal rights on a defendant’s ability to pay for such rights.” People v Leonard, 224 Mich App 569, 580 (1997). MCL 775.15 provides that an indigent defendant may request that the judge, “in his discretion[,] . . . make an order that a subpoena be issued” for a material

witness favorable to defendant “without whose testimony [defendant] cannot safely proceed to a trial[.]” As reflected in this permissive language, it is a discretionary decision and “a trial court is not compelled to provide funds for the appointment of an expert on demand.” People v Tanner, 469 Mich 437, 442 (2003). “[A] defendant must show a nexus between the facts of the case and the need for an expert.” Leonard, 224 Mich App at 582. Also, “[i]t is not enough for the defendant to show a mere possibility of assistance from the requested expert. Without an indication that expert testimony would likely benefit the defense, a trial court does not abuse its discretion in denying a defendant’s motion for appointment of an expert witness.” Tanner, 469 Mich at 443 (internal quotations and citation omitted).

In this case the only evidence linking defendant to the crime was the DNA evidence. Thus, there was a nexus between the facts of the case and the need for a DNA expert, Leonard, 224 Mich App at 582. Without the ability to have an independent DNA expert examine the blood samples, defendant was deprived of an opportunity to present a defense to the charged crimes. “[F]undamental fairness requires that the state not deny [indigents] an adequate opportunity to present their claims fairly within the adversary system.” Leonard, 224 Mich App at 580 (internal quotations and citation omitted). In spite of this concern for fundamental fairness, the trial court failed to articulate any reasons justifying the denial of defendant’s request for an independent DNA expert.  This was reversible error.

Mars, Inc. Lands Victory in Pension Benefits Misrepresentation Suit, Guest blog by Emily Hootkins.

August 9, 2012 | Posted by Emily Catherine Hootkins |  Alston & Bird

In a recent pension benefits misrepresentation decision, the Southern District of Ohio granted summary judgment for the defense on Plaintiff Virginia Stark’s claims for estoppel and breach of fiduciary duty. Stark v. Mars, Inc., et al., No. 2:10-cv-642, 2012 WL 2918410 (S.D. Ohio July 17, 2012).  At the time of the Court’s order, the sole Defendants in this action were Plaintiff’s former employer, Mars, Inc. (“Mars”), and the Mars Inc. U.S. Benefit Plans Committee (the “Committee”). The Court’s 40-page opinion contains a detailed recital of the precise misrepresentations at issue in this case. In short, Plaintiff was misinformed on multiple occasions on the amount of her pension benefits. Further, she was overpaid (in line with the misrepresentations) by approximately $15,000.

At the time that Plaintiff elected to begin receipt of her pension benefits, Hewitt Associates (“Hewitt”) was under contract with Mars to operate and maintain the computer database records for the Mars retirement plan involved in this lawsuit. Apparently due to a computer programming error, a web page and call center employees misinformed Plaintiff regarding the amount of her pension benefits. Once the error was discovered and Plaintiff’s benefits were properly reduced, Plaintiff brought suit alleging multiple claims, of which only estoppel and breach of fiduciary duty remained at the time of the Court’s decision.

Estoppel Claim

The Court in this case easily found that the Defendants were entitled to summary judgment on Plaintiff’s estoppel claim. First, the Court noted that “[b]ecause the Committee, not Mars, is charged with paying benefits. . . the Committee is the only proper defendant to the estoppel claims.” Id. at *7. Second, the Court found that several of the elements of estoppel were not met. Most significantly, Plaintiff lacked justifiable and detrimental reliance.

This case presents many lessons for plan sponsors and administrators. First, one of the main reasons Plaintiff’s claims failed was that the incorrect statements regarding the amount of Plaintiff’s pension benefits were consistently underscored as “estimates” and subject to various disclaimers. Thus, Plaintiff was on notice that the pension benefit figures were not guaranteed to be accurate. As a result, Plaintiff could not prove justifiable reliance. Another smart choice by Mars was to permit Plaintiff to keep the $15,307.25 overpayment. Instead of demanding repayment from Plaintiff, Mars took it upon itself to reimburse the plan for the overpayment plus interest. In doing so, Mars nearly eliminated Plaintiff’s claim of detrimental reliance because even assuming that Plaintiff increased her discretionary spending during the overpayment period (which was not proven), those increases were more than covered by the inflated pension benefits which Plaintiff was allowed to keep. Of note, Plaintiff did not incur any major debt in reliance on the erroneous pension amounts.

Breach of Fiduciary Duty Claim

Plaintiff was also unable to establish a claim for breach of fiduciary duty based on the alleged misrepresentations. Under Sixth Circuit case law, the elements for this claim are: (1) that the defendant was acting in a fiduciary capacity when it made the challenged representations; (2) that these representations constituted material misrepresentations; and (3) that the plaintiff relied on those misrepresentations to her detriment. Similar to its decision on the estoppel claims, the Court determined “the evidence is insufficient to show that plaintiff’s reliance on the representations was reasonable, particularly in light of the disclaimers.” Id. at *21. Thus, the third element for this claim was not met.  Further, Plaintiff’s breach of fiduciary duty claim failed because the misrepresentations were made by non-fiduciaries – Hewitt and employees at the call center. There was no evidence that Hewitt or any of the employees at the call center exercised the discretionary authority or control necessary for fiduciary status. The Court also determined that Mars and the Committee could not be faulted for relying on the information provided by Hewitt. There was no evidence that Hewitt had provided inaccurate information prior to this instance. Further, Mars audits ten percent of retirements on a monthly basis at random to ensure accuracy and Hewitt sent Mars audit reports. Thus, adequate steps were taken to insulate against a breach of fiduciary claim based on reliance on Hewitt.

Conclusion

This is a good opinion for plan sponsors and administrators. Plan sponsors and administrators should consider periodic auditing of retirement plan accounts in order to catch and fix any errors promptly (this will also help fend off a fiduciary breach claim). Further, disclaimers and limiting language should accompany any benefit representations. If an error is discovered, remedial measures should be promptly taken. Making some concessions to affected participants may be a wise choice to curb potential liability, for example waiving overpayments and allowing participants to suspend pension payments to resume at a later date and/or elect another form of payment.

The case is Virginia Stark v. Mars, Inc., et al., No. 2:10-cv-642, 2012 WL 2918410 (S.D. Ohio July 17, 2012).

MSC holds that impeachment evidence may be grounds for a new trial.

In People v Grissom, __ Mich __ (#140147, 7/31/2012) the Michigan Supreme Court held that impeachment evidence may be grounds for a new trial if it satisfies the four-part test set forth in People v Cress, 468 Mich 678 (2003).    In Cress, supra, the court held that a defendant must show that (1) the evidence itself, not merely its materiality, was newly discovered; (2) the newly discovered evidence was not cumulative; (3) the party could not, using reasonable diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a different result probable on retrial.

A material, exculpatory connection must exist between the newly discovered evidence and significantly important evidence presented at trial, but it may be of a general character and need not contradict specific testimony at trial. Also, the evidence must make a different result probable on retrial.   Not every instance will justify a new trial, but when it is established that  (1) the necessary exculpatory connection exists between the heart of the witness’s testimony at trial and the new impeachment evidence and (2) a different result is probable on retrial, a court should not refuse to grant a new trial solely on the ground that the newly discovered evidence is impeachment evidence. It should not refuse even if the new evidence is not directly contradictory to specific trial testimony.

At a motion for a new trial, the defendant is entitled to have the trial court carefully consider the newly discovered evidence in light of the evidence presented at trial. The trial court must evaluate the new evidence and determine whether there exists an exculpatory connection between it and the heart of the complainant’s testimony. With the caveat that the only facts that the trial court should consider in deciding whether to grant a new trial are those in the newly discovered evidence and those in the record.  Newly discovered impeachment evidence concerning immaterial or collateral matters cannot satisfy Cress. But if it has an exculpatory connection to testimony concerning a material matter and a different result is probable, a new trial is warranted.

MSC allows expert witness testimony regarding interrogation techniques and psychological factors claimed to generate false confessions.

In People v Kowalski, __ Mich __ (#141932, 7/30/2012) the Michigan Supreme Court indicated it would allow expert witness testimony regarding interrogation techniques and psychological factors claimed to generate false confessions under MRE 702 and MRE 403.

MRE 702 establishes prerequisites for the admission of expert witness testimony. Gilbert v DaimlerChrysler Corp, 470 Mich 749, 782, 789 (2004): If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

A court thereby evaluating proposed expert testimony must ensure that the testimony (1) will assist the trier of fact to understand a fact in issue, (2) is provided by an expert qualified in the relevant field of knowledge, and (3) is based on reliable data, principles, and methodologies that are applied reliably to the facts of the case.  An expert who lacks ‘knowledge’ in the field at issue cannot ‘assist the trier of fact.  Likewise, expert testimony without a credible foundation of scientific data, principles, and methodologies is unreliable and, thus, unhelpful to the trier of fact.

First, the trial court must determine whether the proposed expert testimony will “assist the trier of fact to understand the evidence or to determine a fact in issue”—If the proffered testimony is not relevant or does not involve a matter that is beyond the common understanding of the average juror, the same is not allowable as opinion testimony.  If answered in the affirmative, the court must then consider the other requirements of MRE 702 before determining whether to exclude the proposed testimony.  Second, the proposed testimony is admissible under MRE 702 if it meets the other requirements of the evidentiary rule: the “witness [is] qualified as an expert by knowledge, skill, experience, training, or education,” the “testimony is based on sufficient facts or data,” the “testimony is the product of reliable principles and methods,” and the “witness has applied the principles and methods reliably to the facts of the case.” When evaluating the reliability of a scientific theory or technique, courts should consider certain factors, including but not limited to whether the theory has been or can be tested, whether it has been published and peer-reviewed, its level of general acceptance, and its rate of error if known. This analysis requires courts to ensure that “each aspect of an expert witness’s proffered testimony—including the data underlying the expert’s theories and the methodology by which the expert draws conclusions from that data—is reliable.”

The unanimity jury instruction in criminal cases.

In a criminal case, a jury’s verdict must be unanimous. MCR 6.410(B). “In order to protect a defendant’s right to a unanimous verdict, it is the duty of the trial court to properly instruct the jury regarding the unanimity requirement.” People v Cooks, 446 Mich 503, 511 (1994). Generally, a trial court may meet this requirement through a general instruction on unanimity, but where multiple acts are presented as evidence of the actus reus of a single offense, the court may be required to issue a specific unanimity instruction. Id. at 510- 512. The Court in Cooks concluded that: [A] specific unanimity instruction is not required in all cases in which more than one act is presented as evidence of the actus reus of a single criminal offense.

The critical inquiry is whether either party has presented any evidence that materially distinguishes any of the alleged multiple acts from the others. In other words, where materially identical evidence is presented with respect to each act, and there is no juror confusion, a general unanimity instruction will suffice. [Id. at 512-513 (emphasis in original).]  Defendant argues that a specific unanimity instruction should have been given based on People v Yarger, 193 Mich App 532; (1992), overruled in part Cooks, 446 Mich at 530. Yarger is factually distinguishable from this case. In Yarger, the defendant faced a single charge of third-degree criminal sexual conduct, but the complainant testified to two separate sexual encounters with the defendant that occurred about a month apart and were factually distinct. Id. at 533-534. This Court held that the trial court erred in failing to give a specific unanimity instruction, and that as a result, it was possible that the jury did not unanimously agree as to which alleged act of sexual penetration formed the basis of the conviction. Id. at 536-537.

Sample Instructions:

In this case it is alleged that __________________________.  If you all agree that __________________________ or ________________________, it is not necessary that you agree on which of these two occurrences took place.  However, in order to return a verdict of guilty you must all agree that one of the two alternatives did occur.

In this case it is alleged that the defendant has committed the offense of <insert name of offense> in two different ways, <identify the two way of committing the offense>. You may find the defendant guilty of the offense only if you all unanimously agree on which of the two ways the defendant committed the offense. This means you may not find the defendant guilty unless you all agree that the People have proved beyond a reasonable doubt that the defendant <insert first theory of culpability> or you all agree that the state has proved beyond a reasonable doubt that the defendant <insert second theory of culpability>.

Established custodial environment--explained

In Goble v Goble, Unpub per curiam opinion, (#307614, 7/19/2012) the Court of Appeals reiterated that “[W]hen considering an important decision affecting the welfare of the child, the trial court must first determine whether the proposed change would modify the established custodial environment of that child. In making this determination, it is the child’s standpoint, rather than that of the parents, that is controlling.” Pierron v Pierron, 486 Mich 81, 92 (2010). “[W]hether a custodial environment has been established is an intense factual inquiry.” Foskett v Foskett, 247 Mich App 1, 6 (2001). An established custodial environment exists if “over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.” MCL 722.27(1)(c). “It is both a physical and a psychological environment that fosters a relationship between custodian and child and is marked by security, stability, and permanence.” Berger v Berger, 277 Mich App 700, 706 (2008). “An established custodial environment may exist with both parents where a child looks to both the mother and the father for guidance, discipline, the necessities of life, and parental comfort.” Id. at 707. 

“If an established custodial environment exists with one parent and not the other, then the noncustodial parent bears the burden of persuasion and must show by clear and convincing evidence that a change in the custodial environment is in the child’s best interests.” In re AP, 283 Mich App 574, 601 (2009). However, where “the record supports an established custodial environment with both parents . . . neither plaintiff’s nor defendant’s established custodial environment may be disrupted except on a showing, by clear and convincing evidence, that such a disruption is in the children’s best interests.” Foskett, 247 Mich App at 8 (emphasis in original).

Whether an established custodial environment exists is a question of fact. Mogle v Scriver, 241 Mich App 192, 197 (2000). The great weight of the evidence standard applies to all findings of fact, and a trial court’s findings regarding the existence of an established custodial environment should be affirmed unless the evidence clearly preponderates in the opposite direction. Phillips v Jordan, 241 Mich App 17, 20 (2000).

In Goble, the trial court did not make findings of fact to support its conclusion that an established custodial environment existed solely with plaintiff other than to point out that, while commendable, during the marriage defendant worked outside the home while plaintiff stayed at home to care for the child. However, the trial court also found that both parties loved the minor child equally and that defendant displayed an equal capacity and disposition to give her love, affection, and guidance. The trial court described both parties as “hands-on parents” and specifically noted that after the parties’ separation defendant and the child spent one-on-one time together doing household chores, going to the park, and reading together. The trial court also found that defendant was the primary provider of the minor child’s material necessities. Thus, we find on this record that the great weight of the evidence establishes that the minor child (who was too young to weigh in on the matter) looked to both plaintiff and defendant “for guidance, discipline, the necessities of life, and parental comfort[,]” MCL 722.27(1)(c), and that her relationship with both parents was “marked by qualities of security, stability, and permanence.” Mogle, 241 Mich App at 197. As such, the trial court’s contrary finding was against the great weight of the evidence.

Because the minor child had an established custodial environment with both parties, neither party could disrupt the other’s established custodial environment without showing by clear and convincing evidence that such a disruption was in the minor child’s best interests. See Foskett, 247 Mich App at 8. The record before us indicates that plaintiff has been the minor child’s primary caregiver since birth and that the minor child has spent the majority of her time, both before and after the parties’ separation, with plaintiff. The minor child has lived in the marital residence her entire life, which is approximately one hour away from defendant’s residence. Thus, we find that the trial court’s finding that granting defendant sole physical custody of the minor child would disrupt her established custodial environment with plaintiff was not against the great weight of the evidence. See Pierron, 486 Mich at 86-87, 89. In reaching this conclusion, the trial court properly required defendant to prove by clear and convincing evidence that granting him sole physical custody was in the minor child’s best interests. See Foskett, 247 Mich App at 8. However, because an established custodial environment existed with defendant as well, in seeking sole physical custody of the minor child, plaintiff likewise bore the burden of showing by clear and convincing evidence that granting her sole physical custody was in the minor child’s best interests. See id.; see also In re AP, 283 Mich App at 601-602. The trial court committed clear legal error by failing to require plaintiff to meet this burden.

A DOS certificate of mailing is not testimonial.

In People v Nunley, __ Mich __ (#144036, 7/12/2012) the Michigan Supreme Court held that a DOS certificate of mailing is not testimonial because the circumstances under which it is generated would not lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Instead, the circumstances reflect that the creation of a certificate of mailing, which is necessarily generated before the commission of any crime, is a function of the legislatively authorized administrative role of the DOS independent from any investigatory or prosecutorial purpose. Therefore, the DOS certificate of mailing may be admitted into evidence absent accompanying witness testimony without violating the Confrontation Clause.

In Nunley the issue was whether a Secretary of State certificate of mailing is testimonial in nature such that its admission, without accompanying witness testimony, violates the Confrontation Clause of the state and federal constitutions. The DOS generated the certificate of mailing to certify that it had mailed a notice of driver suspension to a group of suspended drivers. The prosecution sought to introduce this certificate to prove the notice element of the charged crime, driving while license revoked or suspended (DWLS), second offense, MCL 257.904(1) and (3)(b).

Post-Amara Fourth Circuit Approves Equitable Remedies under ERISA § 502(a)(3), guest blog by Emily Hootkins

July 12, 2012 | Posted by Emily Catherine Hootkins | Alston & Bird

In light of the Supreme Court’s decision in CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011), a panel of the Fourth Circuit has allowed the pursuit of equitable remedies – including surcharge and equitable estoppel – under ERISA § 502(a)(3).

Background

Plaintiff Debbie McCravy participated in an ERISA governed life insurance and accidental death and dismemberment plan sponsored by her employer. The plan allowed participants to purchase coverage for “eligible dependent children.” This term was defined as children of the insured who are unmarried, dependent upon the insured for financial support, and either under the age of 19 or under the age of 24 if enrolled full-time in school. Under this provision, Plaintiff purchased coverage for her daughter, Leslie, and paid premiums from before Leslie’s nineteenth birthday until she was murdered in 2007 at the age of 25.

Following Leslie’s death, Plaintiff, as the beneficiary of Leslie’s policy, filed a claim for benefits. Plaintiff’s claim was denied because Leslie was 25 at the time of her death, thus no longer qualifying as an “eligible dependent child” for whom coverage could be purchased. Upon denying Plaintiff’s claim, the insurer attempted to refund the premiums Plaintiff paid for Leslie’s coverage. However, Plaintiff refused to accept the refund check and instead brought suit.

Plaintiff’s complaint sought various forms of relief, including equitable remedies under ERISA § 502(a)(3). In June 2009, the district court ruled that Plaintiff could recover under this section, but that her recovery was limited to the cost of the premiums. In January 2010, the district court entered a final order and judgment awarding Plaintiff the improperly withheld premiums. Appeals followed, and on May 16, 2011, the Fourth Circuit entered an opinion affirming the district court’s order. That same day, the Supreme Court issued its opinion in CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011). On the basis of Amara, the Fourth Circuit granted a petition for panel re-hearing.

The Fourth Circuit’s Published Opinion on Re-hearing

On appeal, Plaintiff challenged the district court’s limitation of remedies under ERISA, arguing that § 502(a)(3) allows for surcharge and equitable estoppel. On the re-hearing, the Fourth Circuit agreed and summarized Amara’s consideration of § 502(a)(3) as “stand[ing] for the proposition that remedies traditionally available in courts of equity, expressly including estoppel and surcharge, are indeed available to plaintiffs suing fiduciaries under Section 1132(a)(3).”

Thus, the Fourth Circuit held that Plaintiff’s potential recovery was not limited to a premium refund. Instead, a remand to the district court was warranted to allow her to seek surcharge and equitable estoppel under § 502(a)(3). The Fourth Circuit’s recognition of equitable estoppel as a remedy is particularly significant due to the Court’s previous indication that equitable estoppel “is of limited applicability in ERISA cases.” See Coleman v. Nationwide Life Ins. Co., 969 F.2d 54 (4th Cir. 1992).

Ultimately, the Fourth Circuit’s opinion offers little guidance on the circumstances warranting either surcharge or equitable estoppel under § 502(a)(3). For example, the Fourth Circuit fails to discuss whether “actual harm” is required and, if so, whether either Justice Scalia’s or Justice Breyer’s definition of “actual harm” applies. In Amara, Justice Scalia opined that the “actual harm” required for surcharge is “harm stemming from reliance on the SPD or the lost opportunity to contest or react to the switch.” In contrast, Justice Breyer’s majority opinion suggested “actual harm” could encompass “the loss of a right protected by ERISA.” Instead of considering this conflict, the Fourth Circuit simply remanded to allow the district court to determine the appropriateness of equitable remedies based on the facts of the case.

Conclusion

The Fourth Circuit has now joined the Ninth Circuit in analyzing the availability of equitable remedies under § 502(a)(3) post-Amara. See Skinner v. Northrop Grumman Ret. Plan B et al., No. 10-55161, 2012 WL 887600 (9th Cir. Mar. 16, 2012). In Skinner, a three-judge panel of the Ninth Circuit held that inaccuracies in a summary plan description did not warrant reformation or equitable surcharge under ERISA § 502(a)(3). However, our blog post on Skinner noted that the case was not a strong one for the plaintiffs, and that a more sympathetic case may have a different result. Our predictions appear to have come true in this Fourth Circuit case, involving the heartwrenching murder of a young adult.

The case is McCravy v. Metro. Life Ins. Co., Nos. 10-1074, 10-1131 (4th Cir. July 5, 2012).

Duty to advise a defendant of a lifetime monitoring requirement

On June 20, 2012 the Michigan Supreme Court, ADM File No. 2011-18, amended MCR 6.302 to Add a Duty to Advise a Defendant of a Lifetime Monitoring Requirement.

Rule 6.302 Pleas of Guilty and Nolo Contendere

(A) Plea Requirements. The court may not accept a plea of guilty or nolo contendere unless it is convinced that the plea is understanding, voluntary, and accurate.  Before accepting a plea of guilty or nolo contendere, the court must place the defendant or defendants under oath and personally carry out subrules (B)-(E).

(B) An Understanding Plea. Speaking directly to the defendant or defendants, the court must advise the defendant or defendants of the following and determine that each defendant understands:

(1) the name of the offense to which the defendant is pleading; the court is not obliged to explain the elements of the offense, or possible defenses;

(2) the maximum possible prison sentence for the offense and any mandatory minimum sentence required by law, including a requirement for mandatory lifetime electronic monitoring under MCL 750.520b or 750.520c ;

(3)-(5)[Unchanged.]

(C)-(F)[Unchanged.]

             

Staff Comment: This amendment codifies the holding of the recently released opinion in People v Cole, 491 Mich ___ (2012), in which this Court held that a trial court must advise a defendant who is subject to lifetime electronic monitoring requirement of that part of the sentence during the plea proceeding.