Judge David Hoort

Malpractice, Summary Disposition, Premature, Discovery

2012-02-14T08:57:00.000-08:00

In Van Buren v Covenant Healthcare System, et al, Unpublished Per Curiam (#297019, 1/5/2012) the Court of Appeals reaffirmed that a motion filed pursuant to MCR 2.116(C) may not be granted unless “no factual development could possibly justify recovery.” Spiek v Dep’t of Transportation, 456 Mich 331 (1998). The Court of Appeals held that even if some or all the relevant actions or omissions were committed by medical professionals, further discovery was appropriate and it was thereby premature for the trial court to determine by summary disposition whether those actions or omissions involved medical judgment.

In Bryant v Oakpoint Villa, 471 Mich 411 (2004) the Supreme Court held that an ordinary negligence claim may be prosecuted by a patient against a medical provider where either of two circumstances are present: (a) the allegedly negligent actions were not taken in the course of a professional relationship; or (b) the claim does not require expert testimony because it does not involve questions of medical judgment beyond the realm of common knowledge and experience. Id. at 422.

Bryant makes clear that the issue of whether the claim sounds in medical malpractice or negligence is not to be resolved through generalized descriptions of the nature of the claim, but instead, by a specific review of the facts. In Van Buren, supra, the complaint was necessarily drafted without access to proofs concerning which hospital employee was supposed to file the biopsy report, whether and when the report was actually filed and whether it was seen by or available to the surgeon. Indeed, other than knowing that her breasts were removed despite a biopsy report showing an absence of cancer, plaintiff, like the trial court, has actual knowledge of almost none of the salient facts. The complaint, accordingly, speaks broadly and encompasses both medical and non-medical personnel. Whether or not the persons ultimately responsible for the alleged miscommunication were medical professionals or clerks, secretaries or other non-medical personnel is not yet known, except perhaps to defendants.

The Fourth Amendment in the computer age.

2012-01-23T09:27:00.000-08:00

The United States Supreme Court In United States v Jones, __ US __ (2012) ruled unanimously on Monday that law enforcement agents must obtain a search warrant before attaching a GPS device to a vehicle to track a drug dealer suspect.

In this country the collection of digital evidence in criminal cases is governed at the Federal and State levels by numerous constitutional and statutory provisions, including statutes that regulate the communications and computer industries and that directly govern the gathering and use of digital evidence. At the forefront is the specific language of the United States Constitution that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. US Const, Am IV.

In Jones, supra the Justice Department argued that it didn't need to obtain permission to attach a global positioning system to a Jeep Grand Cherokee owned by the wife of a Washington, D.C., nightclub owner and suspected drug dealer, Antoine Jones, who had been sentenced to life in prison. The government had obtained a search warrant but failed to install the device in the 10 days it was allowed to do so. The government conceded it didn't have a proper warrant when it attached the device, but argued to the Supreme Court that it wasn't necessary because defendant Jones had no expectation of privacy in that the tracking of the vehicle could have been permissibly done by the use of government agents following the vehicle. In Jones, supra, the FBI captured 2,000 pages of data over a four-week period as it tracked the vehicle - and even had to replace the battery when it was sitting in a public parking lot in Maryland.

Initially, a federal district judge agreed with the Government position and upheld most of the GPS search, saying that "a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." On further appeal this determination was reversed and the matter ended up before the Supreme Court.

Justice Antonin Scalia, writing for a unanimous court, said installing the GPS device constitutes a search under the Fourth Amendment. "The government physically occupied private property for the purpose of obtaining information," Scalia wrote. Scalia's opinion was joined by all eight members as to the judgment - but five other justices joined separate opinions explaining their reasons.

Although its implications remain undecided the Opinion is recognition of one’s existing rights under the Fourth Amendment notwithstanding the ever-changing circumstances in today’s technology and computer age.

Medical Malpractice-standard of care in light of the facilities available to the defendant physician.

2012-01-06T08:21:00.000-08:00

In Estate of Jilek v Stockson, ___ Mich ___ (#141727, 12/21/2011) the Supreme Court held that the trial court correctly determined as a matter of law that the appropriate standard of care was “family practice” because the defendant physician is board-certified solely in family medicine. Further, pursuant to MCL 600.2912a, the trial court properly allowed the jury to consider that standard of care in light of the facilities available to the defendant physician — an urgent care center, not an emergency medical facility. The trial court did not abuse its discretion in ruling that defendants’ two experts were qualified to provide “standard of care” testimony under MCL 600.2169 because they satisfied the specific qualifications of MCL 600.2169(a)-(b).

Judge Hoort---the assessment of costs.

2011-12-27T10:56:00.000-08:00

I obviously cannot speak for other judges, but . . .

The Michigan Supreme Court is requiring an increased effort to collect monies owed in criminal cases, leading to the question what are allowable court costs in a criminal case.

According to a Memorandum from the State Court Administrator Office, costs are limited to expenses specifically incurred in prosecuting the defendant, providing legal assistance to the defendant, and (in probation cases) supervising the probationer. For costs to be assessed, the costs must bear some direct relation to actual costs incurred in prosecution, and cannot include the costs of the day-to-day functions of the prosecutor, law enforcement, or other governmental unit, even if the functions resulted in arrest and prosecution. People v Barber, 14 Mich App 395 (1968), Saginaw Public Libraries v Judges of the 70th District Court, 118 Mich App 379 (1982). It would thereby seem that costs can be assessed in a criminal case, as follows:

State cost; crime victim rights fee.
The expenses of providing legal assistance to the defendant.
Any assessment authorized by law.
Any costs incurred in compelling the defendant’s appearance.
Costs of emergency response and prosecution.
As a condition of probation. If the court requires the probationer to pay costs under MCL 771.3(2), the costs must be limited to expenses specifically incurred in prosecuting the defendant or providing legal assistance to the defendant and supervision of the probationer.
MCL 769.1k allows the court to impose any cost in addition to the minimum state cost.

Statutory allowed costs:

State Costs ($68.00); Crime Victim Rights fee ($130.00); Prosecutor’s OWI fee; Probation Oversight fee.

Additional possible costs:

Attorney fees; witness subpoenas; Cost to supply discovery. (e.g. copy cost, postage); Cost of transcript(s) requested by the defense; Cost for drug test; Actual or estimated cost bearing some direct relation to the actual costs incurred in compelling defendant’s appearance. (e.g. writs, extradition); Actual or estimated cost bearing some direct relation to the actual cost related to an adjournment caused by the defendant; Actual or estimated cost bearing some direct relation to the actual cost caused by the defendant over and above the already existing day-to-day cost for the prosecutor.

What then does this mean?

Procedure for Additional possible costs in my courtroom:

A. Defense expert witness fees will be ordered and added by the court to the amount owed when the bill is received and approved by the court.

B. The People will be responsible for submitting any request at the time of sentencing for costs for prosecution, to-wit: witness subpoenas; cost to supply discovery; adjournment related costs; actual or estimated cost bearing some direct relation to the actual cost for transportation, extradition; and any additional actual or estimated cost bearing some direct relation to the actual cost caused by the defendant over and above the already existing day-to-day cost for the prosecutor. In the absence of any request for actual costs, the cost for an adjournment caused solely by the defense will be $100.00; the costs of transportation from another county will be $100.00.

C. Probation will be responsible for reporting in the PSI the cost of any Preliminary Exam transcripts requested by the defense; drug tests; attorney fees. In the absence of a request for actual costs, the cost for Attorney fees continues to be $400 for a plea, $1,000 for one day of trial, $500 per day thereafter; cost for drug tests is $25.

Representing your self in court.

2011-12-14T13:56:00.000-08:00

I cannot speak for other judges, but the following information may be helpful for persons representing themselves in court.

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People do have a constitutional right to proceed in propria persona in the courts of this state. Const 1963, art 1, § 13. However, individuals who represent themselves in Michigan's courts are held to the same standards as members of the state bar. Baird v Baird, 368 Mich 536, 539 (1962). The Court can not overlook a party's tactical errors or consider documentary evidence that was not submitted to the trial court merely because a party acted in propria persona. Amorello v Monsanto Corp, 186 Mich App 324 (1990).

Judges, clerks and court house staff cannot provide legal advice. Do not ask court employees for legal advice. If you want legal advice, talk to an attorney or consult the Michigan Court Rules and Michigan laws. Court employees are allowed to provide procedural information only.

On the day of your hearing arrive at the assigned judge's courtroom early to allow time for courthouse security measures. Be prepared to spend most of the morning or afternoon in court. Your case may be heard immediately or you may have to wait for other cases to be heard. Bring with you any documents, records, photographs, audio and/or visual recordings related to your case. Witnesses are generally required if you wish to present evidence to the court. Subpoenas are available if you need a court order to compel a witness to appear in court. Without evidence you can loose even if you’re right.

Let the judge’s staff know before the hearing if 1) you need an adjournment because of witness problems or you wish to have an attorney with you or 2) you need an interpreter because you are unable to communicate in English or 3) you are hearing impaired.

Only one person at a time may speak during a court proceeding. This ensures greater accuracy in making a record by our audio recording equipment. When speaking, talk to the witness or the court, not the opposing party, either from your table or the podium. Stepping away from the microphones reduces the accuracy of the record. Be respectful of the judge, court staff, attorneys, witnesses and other parties.

Do not interrupt when someone else is talking. Do not talk and stop talking when the judge is talking. The judge will try to give both sides a full opportunity to be heard, but you need to wait your turn. The judge does get to interrupt you if what you are saying is irrelevant or not material to the issues before the court.

Please remember that hearsay is generally inadmissible. Unless there is an exception under the Rules of Evidence, you can tell the judge anything you actually heard the other party say that is relevant to the case, but you can’t tell the judge what somebody else has said even if that other person is a doctor, lawyer, police officer, family member or friend. You need to have that person appear in court as a witness. Likewise, police reports, lab reports, medical reports, affidavits, letters are hearsay and not admissible unless there is an exception to the hearsay rule.

The right to proceed in propria persona.

2011-12-07T09:44:00.000-08:00

In Kreis v Bedford, Unpublished Opinion in the Court of Appeals, (issued 11/10/2011, No. 300183) plaintiff argued that because she acted in propria persona, she should not have been expected to strictly comply with the provisions of the court rules concerning motion practice and motions for summary disposition. She also suggests that the circuit court should have informed her how to conduct discovery and how to properly oppose plaintiff's motion for summary disposition. She claims that she had an absolute right to proceed in propria persona, and that by holding her to the same exacting standards as a practicing lawyer, the circuit court effectively interfered with her right to procedural due process. The Court of Appeals did not agree.

Without question, litigants have a constitutionally guaranteed right to proceed in propria persona in the courts of this state. Const 1963, art 1, § 13; see also Shenkman v Bragman, 261 Mich App 412, 416 (2004). However, it is well settled that individuals who represent themselves in Michigan's courts are held to the same standards as members of the state bar. Baird v Baird, 368 Mich 536, 539 (1962); Totman v Royal Oak School Dist, 135 Mich App 121, 126 (1984). The Court will not overlook a party's tactical errors or consider documentary evidence that was not submitted to the trial court merely because a party acted in propria persona. Amorello v Monsanto Corp, 186 Mich App 324 (1990); Bachor v Detroit, 49 Mich App 507, 512 (1973). When a litigant elects to proceed without counsel, the litigant is "bound by the burdens that accompany such election." Hoven v Hoven, 9 Mich App 168, 174 (1967).

Costs in a criminal case.

2011-11-19T18:54:00.000-08:00

In People v Dilworth, 291 Mich App 399 (2011) the Court of Appeals remanded to the trial court to set forth the basis for the costs assessed against the defendant. A trial court must have statutory authority to order a criminal defendant to pay costs. People v Lloyd, 284 Mich App 703, 707 (2009). In Dilworth neither of the statutes that defendant was convicted of violating provided any such authority, but the Legislature has the “authority to enact a general cost provision . . . .” Id. at 709 n 3.

There are several statutes under which trial courts may impose costs. MCL 771.3 authorizes a trial court to order a defendant to pay costs as a condition of probation; specifically, it authorizes the assessment of costs “incurred in prosecuting the defendant or providing legal assistance to the defendant and supervision of the probationer.” (Emphasis added.) See People v Brown, 279 Mich App 116, 138-139 (2008). Under MCL 769.1k(1)(b)(iii), a trial court may order the defendant to pay “[t]he expenses of providing legal assistance to the defendant.” And under MCL 769.34(6), a trial court may order costs as part of the sentence.

Because the Legislature has set forth specific circumstances under which trial courts may impose costs, a trial court generally has the discretionary authority to order a criminal defendant to pay the costs of prosecution. When authorized, the costs of prosecution imposed “must bear some reasonable relation to the expenses actually incurred in the prosecution.” People v Wallace, 245 Mich 310, 314 (1929). However, those costs may not include “expenditures in connection with the maintenance and functioning of governmental agencies that must be borne by the public irrespective of specific violations of the law.” People v Teasdale, 335 Mich 1, 6 (1952).

In Dilworth the prosecutor offered to provide the trial court with details of the expenses that were claimed to justify the $1,235 in costs, but that information was never placed into the record. From the transcript of the proceedings that defendant may not have been afforded the opportunity to challenge those costs, and the Court of Appeals could not tell whether the costs were imposed on the basis of appropriate charges, such as expert witness fees, Brown, 279 Mich App at 139, or impermissible charges, such as the assistant prosecutor’s wages, which were set by a board of supervisors pursuant to a statute and independent of any particular defendant’s case, see MCL 49.34.

The Court of Appeals therefore vacated the trial court’s order imposing the costs of prosecution, and remanded the matter to the trial court to make a record of what the costs were, determine whether ordering defendant to pay them was permissible, and, if appropriate, impose or deny them.

Ineffective assistance of defendant’s trial counsel.

2011-10-28T07:06:00.000-07:00

In People v Armstrong, __ Mich __ (#142762, 10/26/2011) the ineffective assistance of defendant’s trial counsel in failing to seek the introduction into evidence of cell phone records that would have undermined the complainant’s credibility prejudiced defendant, thereby entitling him to a new trial.

A defendant must meet two requirements to warrant a new trial because of the ineffective assistance of trial counsel. First, the defendant must show that counsel’s performance fell below an objective standard of reasonableness. In doing so, the defendant must overcome the strong presumption that counsel’s assistance constituted sound trial strategy. Second, the defendant must show that, but for counsel’s deficient performance, a different result would have been reasonably probable.

It did make a difference whether the jury saw the cell phone records since it heard their contents read into evidence by the complainant. The complainant acknowledged only a fraction of the numerous communications revealed in the cell phone records. Further, according to the trial court’s instruction, the jury was to disregard the cell phone records because they had not been properly admitted. We presume that a jury follows its instructions. Moreover, even assuming that the jury considered the portion of the cell phone records read into evidence, the jury also heard from the prosecution that defendant or defense counsel might have fabricated the records. We disagree with the Court of Appeals that instructing the jury that the attorneys’ statements and arguments are not evidence cured such a significant and damning accusation. The failure of defendant’s trial counsel to pursue the introduction of the cell phone records into evidence not only fell below an objective standard of reasonableness, but also prejudiced defendant.

A certificate of mailing to prove notice may be testimonial.

2011-10-17T14:00:00.000-07:00

In People v Nunley, __ Mich App __ (#302181, 10/13/2011) defendant was charged with DWLS and challenged the certificate of mailing by the Secretary of State as being testimonial. The Court of Appeals held that even if the certificate of mailing was prepared in the regular course of the Secretary of State’s business, the certificate of mailing is testimonial because it will be used for the purpose of proving or establishing some fact at trial.

The Confrontation Clause of the United States Constitution provides, “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with all witnesses against him . . . .” US Const, Am VI. The Michigan Constitution provides the same guarantee for criminal defendants. Const 1963, art 1, § 20; Dinardo, ___ Mich App at ___. Testimonial statements of witnesses absent from trial are admissible only when the original declarant is unavailable and the defendant has had a prior opportunity to cross-examine that declarant. Michigan v Bryant, ___ US ___ (2011); Crawford v Washington, 541 US 36, 54, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004). Ordinarily, whether a statement is testimonial depends on whether it constitutes a “‘declaration or affirmation made for the purpose of proving some fact.’” Crawford, 541 US at 51 (citation omitted). This Court has explained that “[s]tatements are testimonial where the ‘primary purpose’ of the statements or the questioning that elicits them ‘is to establish or prove past events potentially relevant to later criminal prosecution.’” Dinardo, ___ Mich App at ___, quoting People v Lewis (On Remand), 287 Mich App 356 (2010), quoting Davis v Washington, 547 US 813, 822 (2006). If a statement is nontestimonial, then “the Confrontation Clause does not restrict state law from determining admissibility.” People v Garland, 286 Mich App 1 (2009), citing Crawford, 541 US at 68.

In Melendez-Diaz v Massachusetts, ___ US ___; 129 S Ct 2527 (2009) the United States Supreme Court held that the “certificates of analysis” including forensic analysis results for seized controlled substances constituted testimonial statements barred by the Confrontation Clause. Melendez-Diaz, 129 S Ct at 2531-2532. The Melendez-Diaz Court observed that the “certificates” were made under circumstances which would lead an objective person to reasonably believe that the statement would be available for use at trial and that under Massachusetts law their sole purpose was to provide prima facie evidence regarding the analyzed substance. Id., quoting Crawford, 541 US at 52 and Mass Gen Laws, ch 111, § 13. The Court concluded that the analysts who created the “certificates” were witnesses for purposes of the Confrontation Clause and defendants had the right to be “confronted” by them at trial, absent a showing that the analyst was unavailable to testify and defendant had a prior opportunity for cross examination.

In order to convict defendant of DWLS, the prosecutor must prove that defendant’s license had been suspended and that he has been notified of the suspension as provided in MCL 257.212. Like the lab analyst report at issue in Melendez-Diaz, the certificate of mailing here is offered to prove a fact in question. Melendez-Diaz, 129 S Ct at 2532, quoting Crawford, 541 US at 51. Indeed, the certificate of mailing here is offered to prove an element of the offense—proof of the notification required by the plain language of MCL 257.904(1). Furthermore, in light of the fact that notification is an element of the offense, certainly the certificate of mailing was “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” Id., quoting Crawford, 541 US at 52. The Secretary of State representative who created the “certificate” was a witness for purposes of the Confrontation Clause and defendant had the right to be “confronted” by him at trial, absent a showing that he was unavailable to testify and defendant had a prior opportunity for cross examination.

Ineffective assistance of counsel.

2011-09-27T07:34:00.000-07:00

In People v Gioglio, __ Mich __ (#143136, 9/21/2011) the Michigan Supreme Court reiterated that when claims of ineffective assistance present a mixed issue of fact and constitutional law, the trial court must first determine the facts and then decide whether those facts demonstrate a violation of the defendant’s constitutional right to the assistance of counsel. People v Lewis (On Remand), 287 Mich App 356 (2010). “When a defendant asserts that his assigned lawyer is not adequate or diligent . . . the judge should hear his claim and, if there is a factual dispute, take testimony and state his findings and conclusion.” People v Ginther, 390 Mich 436 (1973). A trial court’s factual findings are reviewed for clear error and its ultimate determination de novo. People v Petri, 279 Mich App 407 (2008).).

If counsel is a reasonably effective advocate, he meets constitutional standards irrespective of his client's evaluation of his performance. Id. at 657 n 21, citing Jones v Barnes, 463 US 745 (1983) and Morris v Slappy, 461 US 1 (1983). In People v Frazier, 478 Mich 231 (2007), the Michigan Supreme Court clarified how to apply the Cronic/Strickland standards: “[t]he Cronic test applies when the attorney's failure is complete, while the Strickland test applies when counsel failed at specific points of the proceeding.” In Frazier, the Supreme Court refused to apply Cronic and presume prejudice when the defense counsel advised defendant to waive his right to counsel at the police interrogation and failed to attend the interrogation with the defendant. Id. at 244-245.

In this case, because counsel’s failure to test the prosecution’s case was not complete, the analysis is under the Strickland ineffective assistance of counsel test. The right to effective counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20; Strickland, 466 US 686. To establish ineffective assistance of counsel, defendant must show that: (1) counsel’s performance was below an objective standard of reasonableness under prevailing professional norms, (2) there is a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different, and (3) the resultant proceedings were fundamentally unfair or unreliable. People v Toma, 462 Mich 281, 302 (2000); People v Pickens, 446 Mich 298 (1994). Unlike Cronic, the Strickland test addresses specific errors made by counsel, requiring defendant to show that not only was counsel’s performance deficient but also that the defective performance was prejudicial. Strickland, 466 US at 6; Mitchell, 454 Mich at 157.

Effective assistance of counsel is presumed and defendant bears a heavy burden of proving otherwise. Rockey, 237 Mich App at 76. Defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy. People v Riley (After Remand), 468 Mich 135, 140 (2003). Decisions as to when to make an opening statement, what evidence to present, whether to call or question witnesses, and on what to focus in closing argument are presumed to be matters of trial strategy, People v Horn, 279 Mich App 31 (2008); People v Dixon, 263 Mich App 393 (2004), and declining to raise objections to procedures, evidence, or argument can also be sound trial strategy, People v Unger, 278 Mich App 210 (2008). “This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.” People v Garza, 246 Mich App 251 (2001).

Requests for Attorney fees in domestic relations cases, and maybe otherwise.

2011-09-21T08:25:00.000-07:00

In Bowers v Bowers, Unpub per curiam opinion, (9/20/2011, #298268) the Court of Appeals addressed requests for attorney fees in a domestic relations matter. I am considering requiring a separate (evidentiary) hearing to address any request for attorney fees.

In domestic relations cases, attorney fees are authorized by both statute, MCL 552.13, and court rule, MCR 3.206(C).” Reed v Reed, 265 Mich App 131, (2005). MCR 3.206(C) provides: (1) A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding. (2) A party who requests attorney fees and expenses must allege facts sufficient to show that (a) the party is unable to bear the expense of the action, and that the other party is able to pay, or (b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.

MCL 552.13(1), authorizes as follows the imposition of fees and costs in divorce actions: In every action brought, either for a divorce or for a separation, the court may require either party to pay alimony for the suitable maintenance of the adverse party, to pay such sums as shall be deemed proper and necessary to conserve any real or personal property owned by the parties or either of them, and to pay any sums necessary to enable the adverse party to carry on or defend the action, during its pendency. It may award costs against either party and award execution for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver. In addition, this Court has held that attorney fees are “authorized when the party requesting payment of the fees has been forced to incur them as a result of the other party’s unreasonable conduct in the course of litigation.” Stackhouse v Stackhouse, 193 Mich App 437, 445 (1992); Milligan v Milligan, 197 Mich App 665, 671 (1992). “[T]he attorney fees awarded must have been incurred because of misconduct.” Reed, 265 Mich App at 165.

When requested attorney fees are contested, it is incumbent on the trial court to conduct a hearing to determine what services were actually rendered, and the reasonableness of those services. Miller v Meijer, Inc, 219 Mich App 476, 479-480 (1996); Petterman v Haverhill Farms, Inc,125 Mich App 30, 33 (1983).

The Supreme Court in Smith v Khouri, 481 Mich 519 (2008) set forth a process for how a court should determine the reasonableness of requested attorney fees. The Smith Court first noted that the party requesting fees bears “the burden of proving the reasonableness of the requested fees.” Smith, 481 Mich at 528–529. The trial court should “consider the totality of special circumstances,” applying as appropriate the six factors listed in Wood v Detroit Auto Inter–Ins Exch, 413 Mich 573, 588 (1982), and the eight factors listed in Michigan Rules of Professional Conduct (MRPC) Rule 1.5(a). The factors overlap and include “the professional standing and experience of the attorney,” “the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly,” and “the expenses incurred.” Id. at 529–530, quoting Wood, 413 Mich at 588, MRPC 1.5(a). The Smith Court held that, in determining whether requested attorney fees are reasonable, the trial court should begin its analysis by determining the fee customarily charged in the locality for similar legal services.... In determining this number, the court should use reliable surveys or other credible evidence of the legal market. This number should be multiplied by the reasonable number of hours expended in the case.... The number produced by this calculation should serve as the starting point for calculating a reasonable attorney fee.... [Id. at 530–531.] The Court “emphasize[d]” that “‘the burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.’” Id. at 531, quoting Blum v Stenson, 465 US 886, 895 n 11 (1984). This “satisfactory evidence” of customary fees “can be established by testimony or empirical data found in surveys and other reliable reports.” Id. at 531–532. Mere “anecdotal statements” are not sufficient. Id. at 532.

To determine “the reasonable number of hours expended in the case,” the attorney requesting fees “must submit detailed billing records, which the court must examine and opposing parties may contest for reasonableness.” Id. The burden of establishing the reasonableness of the hours reported lies with the attorney requesting fees. If the other party raises a factual dispute regarding the reasonableness of the hourly rates or the hours billed, “the party opposing the fee request is entitled to an evidentiary hearing to challenge” the evidence submitted by the attorney requesting fees and to present contrary evidence. Id. Only after the trial court has determined a reasonable fee by multiplying the reasonable hourly rate by a reasonable number of hours billed, should the court “consider the other factors and determine whether they support an increase or decrease in the base number.” Id. at 533.

Judge Hoort sentencings

2011-08-10T13:04:00.000-07:00

As a starting point, my ‘norm’ is to impose five years probation if the guidelines allow for a prison sentence, and the person is not going to prison. If the guidelines are in the x to 17 range, four years probation may be appropriate. If the guidelines are in the x to 11 range, three years probation may be appropriate. Two years probation seems appropriate for the significantly less than one year range offender (i.e. x to 9); and one year probation would seem to be appropriate for defendants who really don't have any issues to address on probation; or possibly no probation. I sometimes use the possible maximum sentence plus the sentence guidelines as a reference point whether somebody should even be on probation. Unless there are substance abuse, assaultive or sexual conduct issues ‘requiring’ probation, a low sentence guidelines and/or low possible maximum sentence may be a sufficient indicator that probation is not appropriate.

Unless there is significant restitution, I don’t necessarily need to put somebody on probation or have probation extended to collect restitution. We have pretty good collections programs otherwise in both counties.

I do not like to ‘warehouse’ a defendant in jail for one year. If probation is imposed that means saving approximately two months jail for sanctions. Otherwise, if it’s going to be a one year incarceration, my preference is the prison sentence. Especially now that there are re-entry programs available to parolees and often in excess of what we can offer via probation.

If probation, and there are non-marijuana substance abuse issues I generally require NA meetings at a minimum of 2 or 3 times per week and random drug testing at a minimum of 2 or 3 times per week as directed by the field agent. If its marijuana, random drug testing two times per month.

I am more and more requiring in all my probationary terms a curfew whereby defendant must be in his/her approved residence between the hours of 11 p.m. and 6 a.m. unless excused by first obtaining written permission from the field agent. (And I’m wondering if it should start at 10 p.m.) and that a probationer cannot use or possess without a court order any controlled substance or substance for hallucinatory purposes or drug paraphernalia; or be with anyone you know to use or possess these items. If a medical marijuana exception is actually medically appropriate (and we do have two or three such cases), my ‘norm’ is to require the same to be in tablet form.

I do like to use SCRAM and/or tether as a means of keeping a probationer on the ‘straight and narrow’.

I do not like to do community service if there is any chance the probationer may take advantage of an innocent third party.

I generally do not mind giving a defendant the benefit of HYTA, 7411 or DSA if through no fault of their own, defendant was not able to comply with all of the terms of probation. This does require a good faith effort by the defendant to comply with all required terms. Many times the issue is non-payment. Unless payment was a 'mandatory requirement' (which I sometimes do), the above rule applies. What happens then is that if the defendant, through no fault of their own, has made a good faith effort, but been unable to pay off all of the monies owed, s/he will receive a satisfactory discharge, but the case will not be actually dismissed until all monies are paid.

I generally don’t allow a defendant to do community service in lieu of payment unless they are in the

Mental Health Court

. I do sometimes also make an exception if so convinced by the assigned probation officer. My philosophy is that if a person can do community service, he/she can also work. It might be odd jobs or menial labor, but then that is also maybe an appropriate consequence for their actions.

I generally do not allow for an early release from jail except as recommended by the PSI writer or if by sentence agreement, but sometimes to make an exception for my MHC probationers. The idea being what is in the best interest of this person with mental health issues and what is necessary or appropriate for the protection of the community.

As a general rule before I allow for an early discharge from probation for an offense involving CSC or a crime of violence, I would ask that the victim and prosecutor be given an opportunity for input.

Finally, I can be wrong.

Divorce trial related rules in my court

2011-08-02T06:00:00.000-07:00

I try to remember what it was like being a family law practioner by allowing discovery up until seven days before trial; briefs three days before trial; information from the internet; expansion of the seven day order time frame, etc.

However, the highly contentious nature of divorce proceedings mandates other rules to help me make the right decision. i.e. If there is going to be a trial, I do have some very specific rules in my scheduling order . . .

If there are more than ten items of disputed property, the parties shall prepare a joint list of disputed property, with any agreed upon values and encumbrances, for entry as court Exhibit #1. If there is more than ten items of unsecured debt to be divided, the parties shall prepare a joint list of unencumbered debt to be divided, with any agreed upon dollar amount owed, for entry as Court Exhibit #2.

Non-compliance with requested discovery of exhibits or witnesses by this date shall bar introduction of said exhibits or witnesses at trial.

Three (3) days before trial the parties shall file with the judge’s office and opposing party a brief covering all issues to be decided; applicable law; statements to be introduced under MRE 803(24); Court Exhibits (if applicable) and proposed division of property and debt, with proposed findings of fact regarding their assets and incomes, including mathematical calculations. Exhibits shall be attached to the Judge’s copy and the opposing party’s brief but, to avoid identity theft, shall not be filed with the court.

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This type of procedural requirements were recently upheld in Engerman v Engerman, unpublished opinion per curiam of the Court of Appeals, issued [7/7/2011] (Docket No. 295687). In Engerman the Court of Appeals remanded to the circuit court to make specific findings of fact regarding the value of the financial accounts encompassed in the property division. In do so the Court recommended the trial court order: “both parties to prepare detailed proposed findings of fact regarding their assets and incomes, including mathematical calculations.”

Finally, please remember that non-compliance can result in loss of evidence, costs being assessed, adjournment of the trial or other delay.

Government Liability for its employees under respondeat superior.

2011-08-01T08:39:00.000-07:00

In Hamed v Wayne County and Wayne County Sheriff’s Department, __ Mich __ (#139505, 7/27/2011) the Michigan Supreme Court considered the scope of an employer’s vicarious liability for quid pro quo sexual harassment affecting public services under Michigan’s Civil Rights Act (CRA). In Hamed, the Supreme Court held that Wayne County and its sheriff’s department may not be held vicariously liable for a civil rights claim under MCL 37.2103(i) based on a criminal act of a deputy sheriff committed during working hours but plainly beyond the scope of his employment under traditional principles of respondeat superior.

The doctrine of respondeat superior is well established in this state: An employer is generally liable for the torts its employees commit within the scope of their employment. It follows that “an employer is not liable for the torts . . . committed by an employee when those torts are beyond the scope of the employer’s business.” This Court has defined “within the scope of employment” to mean “‘engaged in the service of his master, or while about his master’s business.’” Independent action, intended solely to further the employee’s individual interests, cannot be fairly characterized as falling within the scope of employment. Although an act may be contrary to an employer’s instructions, liability will nonetheless attach if the employee accomplished the act in furtherance, or the interest, of the employer’s business.

The general rule that an employer is not liable for acts of its employee outside the scope of its business, however, does not preclude vicarious liability in every instance. This Court has consistently recognized that an employer can be held liable for its employee’s conduct if “the employer ‘knew or should have known of [the] employee’s propensities and criminal record’” before that employee committed an intentional tort. This inquiry involves an analysis of whether an employer had (1) actual or constructive knowledge of prior similar conduct and (2) actual or constructive knowledge of the employee’s propensity to act in accordance with that conduct. Under this two-pronged approach, the conduct at issue may be so close in time to prior similar conduct that knowledge under the first prong gives rise to a valid inference that the conduct was foreseeable under the second prong. Conversely, if an employee’s actions were temporally distant and the employee’s recent record suggested a change in character, foreseeability would not be established.

In summary, an employer’s liability for the criminal acts of its employees is limited to those acts it can reasonably foresee or reasonably should have foreseen.

Juvenile sentencing hearing.

2011-07-20T07:11:00.000-07:00

A juvenile sentencing hearing is required under MCR 6.931 except when an adult sentence is mandatory because the juvenile has been convicted of an offense listed in MCL 769.1(1)(a)-(l).

MCL 769.1(3) provides that unless a juvenile is required to be sentenced in the same manner as an adult the court shall conduct a hearing at the juvenile’s sentencing to determine if the best interests of the public would be served by placing the juvenile on probation and committing the juvenile to an institution or agency described in the youth rehabilitation services act, . . . or by imposing any other sentence provided by law for an adult offender. Except as provided in subsection (5), the court shall sentence the juvenile in the same manner as an adult unless the court determines by a preponderance of the evidence that the interests of the public would be best served by placing the juvenile on probation and committing the juvenile to an institution or agency described in the youth rehabilitation services act . . . .

Under MCR 6.931(C) if a juvenile sentencing hearing is required, the judge must advise the prosecuting attorney, the juvenile, and the attorney for the juvenile on the record immediately following conviction of the juvenile by a guilty plea or verdict of guilty that a hearing will be conducted at sentencing to determine whether to sentence the juvenile as an adult or to place the juvenile on juvenile probation and commit the juvenile to state wardship as though a delinquent. . . .

There is nothing in the statute or court rule that makes an exception for a juvenile who has pleaded guilty as part of a sentencing agreement.

Homeless registration under the SORA

2011-07-13T06:47:00.000-07:00

In People v Dowdy, __ Mich __ (#140603, 7/11/2011) the Michigan Supreme Court held that homelessness is not a bar to compliance with the Sex Offender Registration Act (SORA) because homelessness does not preclude an offender from entering a police station and reporting to a law enforcement agency regarding the offender’s residence or domicile.

The SORA is a conviction-based registration statute that requires individuals convicted of certain “listed offenses” to register as sex offenders. An offender’s registration disclosure includes information regarding where the offender lives, identifying information, and a summary of the offender’s convictions. Offenders are also required to sign a form acknowledging their obligations as sex offenders under SORA.

The SORA defines “residence” for “registration and voting purposes” as that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging. If a person has more than 1 residence, or if a wife has a residence separate from that of the husband, that place at which the person resides the greater part of the time shall be his or her official residence for the purposes of this act. Thus, a person’s “residence” under SORA is a combination of three things: that place where a person (1) habitually sleeps, (2) keeps personal effects, and (3) has a regular place of lodging.

It is entirely consistent with the SORA for a sex offender to identify, for example, a vacant house or a park as a “residence” if it is, in fact, “that place at which” the sex offender “habitually sleeps, keeps his or her personal effects, and has a regular place of lodging.”

Unlike “residence,” “domicile” is not defined in SORA. Although this Court has, in several circumstances, treated the terms “residence” and “domicile” as synonymous, the terms were accorded different meanings under the common law. Michigan courts have defined domicile” as “‘that place where a person has voluntarily fixed his abode not for a mere special or temporary purpose, but with a present intention of making it his home, either permanently or for an indefinite or unlimited length of time.’” Similarly, a domicile is “the place where a person has his home, with no present intention of removing, and to which he intends to return after going elsewhere for a longer or shorter time.” More significant to the instant case is that it has long been the law of this state that “[e]very person must have a domicile somewhere.” A person may have only one domicile, which continues until the person acquires a different one.

Even if a homeless sex offender with transient sleeping arrangements cannot establish a “residence” as SORA defines it, the offender is still capable of reporting sufficient information regarding where the offender lives for purposes of identifying a “domicile.” Although it may be difficult to verify where an offender is domiciled, as noted, difficulties in verifying an offender’s information do not excuse the offender from complying with SORA’s requirements. Moreover, SORA enables the Michigan State Police to respond to such situations by empowering it to “specify other satisfactory proof of domicile or residence.” Indeed, the Michigan State Police has exercised this

statutory authority by promulgating an order that permits homeless sex offenders to register their domicile as “123 Homeless.” An offender thus satisfies the offender’s statutory obligation by appearing at a law enforcement agency and advising the authorities of where the offender lives. Pursuant to SORA and the Michigan State Police order, the law enforcement agency can accept as “satisfactory proof” of the offender’s “domicile” the state, city, zip code, and county in which the offender lives and must add that information to the “123 Homeless” designation in the registry. Thus, when the homeless sex offender’s “domicile” is registered as “123 Homeless” in the city in which the offender lives, that is the offender’s statutory domicile for purposes of SORA.

MSC amendment of Court Rules pertaining to Jury trials effective 9.1.2011

2011-07-06T06:51:00.000-07:00

Rule 2.512 Instructions to Jury

(A) Request for Instructions.

(1) At a time the court reasonably directs, the parties must file written requests that the court instruct the jury on the law as stated in the requests. In the absence of a direction from the court, a party may file a written request for jury instructions at or before the close of the evidence.

(2) In addition to requests for instructions submitted under subrule (A)(1), after the close of the evidence, each party shall submit in writing to the court a statement of the issues and may submit the party’s theory of the case regarding each issue. The statement must be concise, be narrative in form, and set forth as issues only those disputed propositions of fact that are supported by the evidence. The theory may include those claims supported

by the evidence or admitted.

(3) A copy of the requested instructions must be served on the adverse parties in accordance with MCR 2.107.

(4) The court shall inform the attorneys of its proposed action on the requests before their arguments to the jury.

(5) The court need not give the statements of issues or theories of the case in the form submitted if the court presents to the jury the material substance of the issues and theories of each party.

(B) Instructing the Jury.

(1) At any time during the trial, the court may, with or without request, instruct the jury on a point of law if the instruction will materially aid the jury in understanding the proceedings and arriving at a just verdict.

(2) Before or after arguments or at both times, as the court elects, the court shall instruct the jury on the applicable law, the issues presented by the case, and, if a party requests as provided in subrule (A)(2), that party’s theory of the case.

(C) Objections. A party may assign as error the giving of or the failure to give an instruction only if the party objects on the record before the jury retires to consider the verdict (or, in the case of instructions given after deliberations have begun, before the jury resumes deliberations), stating specifically the matter to which the party objects and the grounds for the objection. Opportunity must be given to make the objection out of the hearing of the jury.

(D) Model Civil Jury Instructions.

(1) The Committee on Model Civil Jury Instructions appointed by the Supreme Court has the authority to adopt model civil jury instructions (M Civ JI) and to amend or repeal those instructions approved by the predecessor committee. Before adopting, amending, or repealing an instruction, the committee shall publish notice of the committee’s intent, together with the text of the instruction to be adopted, or the amendment to be made, or a

reference to the instruction to be repealed, in the manner provided in MCR 1.201. The notice shall specify the time and manner for commenting on the proposal. The committee shall thereafter publish notice of its final action on the proposed change, including, if appropriate, the effective date of the adoption, amendment, or repeal. A model civil jury instruction does not have the force and effect of a court rule.

(2) Pertinent portions of the instructions approved by the Committee on Model Civil Jury Instructions or its predecessor committee must be given in each action in which jury instructions are given if (a) they are applicable, (b) they accurately state the applicable law, and (c) they are requested by a party.

(3) Whenever the committee recommends that no instruction be given on a particular matter, the court shall not give an instruction unless it specifically finds for reasons stated on the record that (a) the instruction is necessary to state the applicable law accurately, and (b) the matter is not adequately covered by other pertinent model civil jury instructions.

(4) This subrule does not limit the power of the court to give additional instructions on applicable law not covered by the model instructions. Additional instructions, when given, must be patterned as nearly as practicable after the style of the model instructions and must be concise, understandable, conversational, unslanted, and nonargumentative.

Rule 2.513 Conduct of Jury Trial View

(A) Preliminary Instructions. After the jury is sworn and before evidence is taken, the court shall provide the jury with pretrial instructions reasonably likely to assist in its consideration of the case. Such instructions, at a minimum, shall communicate the duties of the jury, trial procedure, and the law applicable to the case as are reasonably necessary to enable the jury to understand the proceedings and the evidence. The jury also shall be instructed about the elements of all civil claims or all charged offenses, as well as the legal presumptions and burdens of proof. The court shall provide each juror with a copy of such instructions. MCR 2.512(D)(2) does not apply to such preliminary instructions. By Jury. On motion of either party or on its own initiative, the court may order an officer to take the jury as a whole to view property or a place where a material event occurred. During the view, no person other than the officer designated by the court may speak to the jury concerning a subject connected with the trial. The court may order the party requesting a jury view to pay the expenses of the view.

(B) Court’s Responsibility. The trial court must control the proceedings during trial, limit the evidence and arguments to relevant and proper matters, and take appropriate steps to ensure that the jurors will not be exposed to information or influences that might affect their ability to render an impartial verdict on the evidence presented in court. The court may not communicate with the jury or any juror pertaining to the case without notifying the parties and permitting them to be present. The court must ensure that all communications pertaining to the case between the court and the jury or any juror are made a part of the record. By Court. On application of either party or on its own initiative, the court sitting as trier of fact without a jury may view property or a place where a material event occurred.

(C) Opening Statements. Unless the parties and the court agree otherwise, the plaintiff or the prosecutor, before presenting evidence, must make a full and fair statement of the case and the facts the plaintiff or the prosecutor intends to prove. Immediately thereafter, or immediately before presenting evidence, the defendant may make a similar statement. The court may impose reasonable time limits on the opening statements.

(D) Interim Commentary. Each party may, in the court’s discretion, present interim commentary at appropriate junctures of the trial.

(E) Reference Documents. The court may authorize or require counsel in civil and criminal cases to provide the jurors with a reference document or notebook, the contents of which should include, but which is not limited to, a list of witnesses, relevant statutory provisions, and, in cases where the interpretation of a document is at issue, copies of the relevant document. The court and the parties may supplement the reference document during trial with copies of the preliminary jury instructions, admitted exhibits, and other admissible information to assist jurors in their deliberations.

(F) Deposition Summaries. Where it appears likely that the contents of a deposition will be read to the jury, the court should encourage the parties to prepare concise, written summaries of depositions for reading at trial in lieu of the full deposition. Where a summary is prepared, the opposing party shall have the opportunity to object to its contents. Copies of the summaries should be provided to the jurors before they are read.

(G) Scheduling Expert Testimony. In a civil action, the court may, in its discretion, craft a procedure for the presentation of all expert testimony to assist the jurors in performing their duties. Such procedures may include, but are not limited to: (1) Scheduling the presentation of the parties’ expert witnesses sequentially; or (2) allowing the opposing experts to be present during the other’s testimony and to aid counsel in formulating questions to be asked of the testifying expert on cross-examination.

(H) Note Taking by Jurors. The court may permit the jurors to take notes regarding the evidence presented in court. If the court permits note taking, it must instruct the jurors that they need not take notes, and they should not permit note taking to interfere with their attentiveness. If the court allows jurors to take notes, jurors must be allowed to refer to their notes during deliberations, but the court must instruct the jurors to keep their notes confidential except as to other jurors during deliberations. The court shall ensure that all juror notes are collected and destroyed when the trial is concluded.

(I) Juror Questions. The court may permit the jurors to ask questions of witnesses. If the court permits jurors to ask questions, it must employ a procedure that ensures that such questions are addressed to the witnesses by the court itself, that inappropriate questions are not asked, and that the parties have an opportunity outside the hearing of the jury to object to the questions. The court shall inform the jurors of the procedures to be followed for submitting questions to witnesses.

(J) Jury View. On motion of either party, on its own initiative, or at the request of the jury, the court may order a jury view of property or of a place where a material event occurred. The parties are entitled to be present at the jury view, provided, however, that in a criminal case, the court may preclude a defendant from attending a jury view in the interests of safety and security. During the view, no person, other than an officer designated by the court, may speak to the jury concerning the subject connected with the trial. Any such communication must be recorded in some fashion.

(K) Juror Discussion. In a civil case, after informing the jurors that they are not to decide the case until they have heard all the evidence, instructions of law, and arguments of counsel, the court may instruct the jurors that they are permitted to discuss the evidence among themselves in the jury room during trial recesses. The jurors should be instructed that such discussions may only take place when all jurors are present and that such discussions must be clearly understood as tentative pending final presentation of all evidence, instructions, and argument.

(L) Closing Arguments. After the close of all the evidence, the parties may make closing arguments. The plaintiff or the prosecutor is entitled to make the first closing argument. If the defendant makes an argument, the plaintiff or the prosecutor may offer a rebuttal limited to the issues raised in the defendant’s argument. The court may impose reasonable time limits on the closing arguments.

(M) Summing up the Evidence. After the close of the evidence and arguments of counsel, the court may fairly and impartially sum up the evidence if it also instructs the jury that it is to determine for itself the weight of the evidence and the credit to be given to the witnesses and that jurors are not bound by the court’s summation. The court shall not comment on the credibility of witnesses or state a conclusion on the ultimate issue of fact before the jury.

(N) Final Instructions to the Jury.

(1) Before closing arguments, the court must give the parties a reasonable opportunity to submit written requests for jury instructions. Each party must serve a copy of the written requests on all other parties. The court must inform the parties of its proposed action on the requests before their closing arguments. After closing arguments are made or waived, the court must instruct the jury as required and appropriate, but at the discretion of the court, and on notice to the parties, the court may instruct the jury before the parties make closing arguments. After jury deliberations begin, the court may give additional instructions that are appropriate.

(2) Solicit Questions about Final Instructions. As part of the final jury instructions, the court shall advise the jury that it may submit in a sealed envelope given to the bailiff any written questions about the jury instructions that arise during deliberations. Upon concluding the final instructions, the court shall invite the jurors to ask any questions in order to clarify the instructions before they retire to deliberate. If questions arise, the court and the parties shall convene, in the courtroom or by other agreed-upon means. The question shall be read into the record, and the attorneys shall offer comments on an appropriate response. The court may, in its discretion, provide the jury with a specific response to the jury’s question, but the court shall respond to all questions asked, even if the response consists of a directive for the jury to continue its deliberations.

(3) Copies of Final Instructions. The court shall provide a written copy of the final jury instructions to take into the jury room for deliberation. Upon request by any juror, the court may provide additional copies as necessary. The court, in its discretion, also may provide the jury with a copy of electronically recorded instructions.

(4) Clarifying or Amplifying Final Instructions. When it appears that a deliberating jury has reached an impasse, or is otherwise in need of assistance, the court may invite the jurors to list the issues that divide or confuse them in the event that the judge can be of assistance in clarifying or amplifying the final instructions.

(O) Materials in the Jury Room. The court shall permit the jurors, on retiring to deliberate, to take into the jury room their notes and final instructions. The court may permit the jurors to take into the jury room the reference document, if one has been prepared, as well as any exhibits and writings admitted into evidence.

(P) Provide Testimony or Evidence. If, after beginning deliberation, the jury requests a review of certain testimony or evidence that has not been allowed into the jury room under subrule (O), the court must exercise its discretion to ensure fairness and to refuse unreasonable requests, but it may not refuse a reasonable request. The court may make a video or audio recording of witness testimony, or prepare an immediate transcript of such testimony, and such tape or transcript, or other testimony or evidence, may be made available to the jury for its consideration. The court may order the jury to deliberate further without the requested review, as long as the possibility of having the testimony or evidence reviewed at a later time is not foreclosed.

Rule 2.514 Rendering Verdict

(A) Majority Verdict; Stipulations Regarding Number of Jurors and Verdict. The parties may stipulate in writing or on the record that (1) the jury will consist of any number less than 6, (2) a verdict or a finding of a stated majority of the jurors will be taken as the verdict or finding of the jury, or (3) if more than 6 jurors were impaneled, all the jurors may deliberate. Except as provided in MCR 5.740(C), in the absence of such stipulation, a verdict in a civil action tried by 6 jurors will be received when 5 jurors agree.

(B) Return; Poll.

(1) The jury must return its verdict in open court.

(2) A party may require a poll to be taken by the court asking each juror if it is his or her verdict.

(3) If the number of jurors agreeing is less than required, the jury must be sent back for further deliberation; otherwise, the verdict is complete, and the court shall discharge the jury.

(C) Discharge From Action; New Jury. The court may discharge a jury from the action:

(1) because of an accident or calamity requiring it;

(2) by consent of all the parties;

(3) whenever an adjournment or mistrial is declared;

(4) whenever the jurors have deliberated and it appears that they cannot agree. The court may order another jury to be drawn, and the same proceedings may be had before the new jury as might have been had before the jury that was discharged.

(D) Responsibility of Officers.

(1) All court officers, including trial attorneys, must attend during the trial of an action until the verdict of the jury is announced. (2) A trial attorney may, on request, be released by the court from further attendance, or the attorney may designate an associate or other attorney to act for him or her during the deliberations of the jury.

Rule 2.515 Special Verdicts

(A) Use of Special Verdicts; Form. The court may require the jury to return a special verdict in the form of a written finding on each issue of fact, rather than a general verdict. If a special verdict is required, the court shall, in advance of argument and in the absence of the jury, advise the attorneys of this fact and, on the record or in writing, settle the form of the verdict. The court may submit to the jury: (1) written questions that may be answered categorically and briefly; (2) written forms of the several special findings that might properly be made under the pleadings and evidence; or (3) the issues by another method, and require the written findings it deems most appropriate. The court shall give to the jury the necessary explanation and instruction concerning the matter submitted to enable the jury to make its findings on each issue.

(B) Judgment. After a special verdict is returned, the court shall enter judgment in accordance with the jury's findings.

(C) Failure to Submit Question; Waiver; Findings by Court. If the court omits from the special verdict form an issue of fact raised by the pleadings or the evidence, a party waives the right to a trial by jury of the issue omitted unless the party demands its submission to the jury before it retires for deliberations. The court may make a finding with respect to an issue omitted without a demand. If the court fails to do so, it is deemed to have made a finding in accord with the judgment on the special verdict.

Rule 2.516 Motion for Directed Verdict

A party may move for a directed verdict at the close of the evidence offered by an opponent. The motion must state specific grounds in support of the motion. If the motion is not granted, the moving party may offer evidence without having reserved the right to do so, as if the motion had not been made. A motion for a directed verdict that is not granted is not a waiver of trial by jury, even though all parties to the action have moved for directed verdicts.

Staff Comment: The amendments in this order reflect the Court’s approval of many of the jury reform principles tested in the Court’s two-year jury reform pilot project that ended in December 2010. Under this order, jury practices for both civil and criminal proceedings are generally incorporated in a new MCR 2.513. The Court will review the efficacy of these amendments in 2014.

Sentence guidelines and statutorily enhanced sentences.

2011-06-16T08:27:00.000-07:00

In People v Peltola, __ Mich __ (#140524, 6/14/2011) the Michigan Supreme Court held the scoring of the prior record variables (PRVs), when calculating a defendant’s recommended minimum sentence range under the statutory sentencing guidelines, remains proper when a defendant’s minimum and maximum sentences may be enhanced pursuant to MCL 333.7413(2).

In Peltola, supra the jury convicted defendant of delivery of less than 50 grams of heroin1 and conspiracy to deliver less than 50 grams of heroin. The trial court scored the PRVs and the relevant offense variables (OVs), calculating defendant’s minimum sentence range at 5 to 23 months in prison with a statutory maximum of 20 years. Because defendant had a prior conviction for a controlled substance offense, the trial court applied the sentence enhancement in MCL 333.7413(2) and doubled both the minimum and maximum sentences for each conviction. Defendant was sentenced within the enhanced guidelines range to concurrent terms of 46 months to 40 years’ imprisonment. On appeal the Supreme Court rejected defendant’s argument that PRVs should not be scored when calculating the minimum sentence range for an offender whose sentence may be enhanced under MCL 333.7413(2), notwithstanding language to the contrary in People v Lowe, 484 Mich 718 (2009).

Assumption of contractual obligations does not limit existing common-law or statutory tort duties.

2011-06-07T07:47:00.000-07:00

In Loweke v Ann Arbor Ceiling & Partition Co, LLC, __ Mich __ (#141168, 6/6/2011) the Michigan Supreme Court held that a contracting party’s assumption of contractual obligations does not extinguish or limit separately existing common-law or statutory tort duties owed to noncontracting third parties in the performance of the contract.

In Loweke plaintiff, an employee of an electrical subcontractor, was injured at a construction site when several cement boards fell on him. The boards had been leaned against a wall by employees of defendant, a carpentry and drywall subcontractor, which, like plaintiff’s employer, had been hired by a general contractor to work on the construction project.

As this Court has historically recognized, a separate and distinct duty to support a cause of action in tort can arise by statute, Clark v Dalman, 379 Mich 251 (1967), or by a number of preexisting tort principles, including duties imposed because of a special relationship between the parties, see, e.g., Williams v Cunningham Drug Stores, Inc, 429 Mich 495 (1988), and Fultz v Union-Commerce Assoc, 470 Mich 460 (2004),, and the generally recognized common-law duty to use due care in undertakings, see, e.g., Clark, supra; Hart, 347 Mich at 564. In summary, “[w]hether a particular defendant owes any duty at all to a particular plaintiff [in tort],” Fultz, 470 Mich at 467 (emphasis added), is generally determined without regard to the obligations contained within the contract, Davis, 568 F3d at 577. See, also, Churchill v Howe, 186 Mich 107, 114; 152 NW 989 (1915) (explaining that although a tort can grow out of a contract, in general, a tort is a “wrong independent of a contract”). Accordingly, with the aforementioned principles in mind, we clarify that when engaging in the “separate and distinct mode of analysis” in Fultz’s analytical framework, see 470 Mich at 469-470, courts should not permit the contents of the contract to obscure the threshold question of whether any independent legal duty to the non contracting third party exists, the breach of which could result in tort liability. Instead, in determining whether the action arises in tort, and thus whether a separate and distinct duty independent of the contract exists, the operative question under Fultz is whether the defendant owed the plaintiff any legal duty that would support a cause of action in tort, including those duties that are imposed by law. Under Fultz, a contracting party’s assumption of contractual obligations does not extinguish or limit separate, preexisting common-law or statutory tort duties owed to noncontracting third parties in the performance of a contract. Accordingly, we clarify that when engaging in Fultz’s “separate and distinct mode of analysis,” courts should not permit the contents of the contract to obscure the proper initial inquiry: whether, aside from the contract, the defendant owed any independent legal duty to the plaintiff. In this case, defendant—by performing an act under the contract—was not relieved of its preexisting common-law duty to use ordinary care in order to avoid physical harm to foreseeable persons and property in the execution of its undertakings. That duty, which is imposed by law, is separate and distinct from defendant’s contractual obligations with the general contractor.

Applying contract law to a property settlement agreement.

2011-05-31T11:24:00.000-07:00

In Smith v Smith, __ Mich App __ (#295243, 5/26/2011) the Court of Appeals applied contract law to a property settlement agreement dividing IRAs thereby holding the parties to the written language in the agreement, notwithstanding any subsequent possible unfairness.

When a court interprets a contract, the entire contract must be read together and construed as a whole. Duval v Aetna Casualty & Surety Co, 304 Mich 397, 401 (1943). All the parts must be harmonized as much as possible, and each word of the contract must be given effect, if possible. Id. Also, courts may not change or rewrite plain and unambiguous language in a contract under the guise of interpretation because “the parties must live by the words of their agreement.” Harbor Park Market, Inc v Gronda, 277 Mich App 126 (2007). Property-settlement agreements, as a general rule, are final and cannot be modified. Zeer v Zeer, 179 Mich App 622, 624 (1989). It is well settled that property settlement agreements are enforceable and that a court is bound by the terms of the agreement in the absence of fraud, duress, mutual mistake, or severe stress. Keyser v Keyser, 182 Mich App 268, 269-270 (1990). Parol evidence is generally not admissible to vary or contradict the terms of a clear and unambiguous contract. Hamade v Sunoco, Inc, 271 Mich App 145, 166-167 (2006).

The terms in the retirement-accounts section of the PSA are clear. The parties used fixed values for all the retirement accounts. Defendant was to retain his IRA, and plaintiff was to retain all other retirement accounts. To equalize the value each was receiving, defendant was required to transfer approximately $1.4 million to plaintiff. Because the terms were unambiguous, the trial court was bound by them, Keyser, 182 Mich App at 269-270, and the parties were required to live up to the terms of their agreement, Harbor Park Market, Inc, 277 Mich App at 130-131. Also, when looking at the PSA as a whole, there is no indication that the parties intended to take into account market fluctuations in dividing the retirement accounts. In the investment property section, the PSA indicates that the investment accounts would be “divided evenly in kind,” which arguably takes into account market fluctuations. There is no such language in the retirement-accounts section.

The unimaginable loss of a mother and child; killed in a motor vehicle accident.

2011-05-06T09:36:00.000-07:00

A mother and grandmother speaks at sentencing following the tragic loss of a child and grandson. No alcohol, no drugs, no reckless driving, no intent to hurt anyone; but two lives are forever lost because the driver of the other vehicle didn’t stop at the stop sign.

I am Sara’s mother and Aiden’s grandmother. We appreciate the chance to make a statement. Max and I, and Adam and Laura, and Brandon and Harmony, now all face a life without Sara’s smile and the sound of her voice. She was the creative one in our very straight line thinking family. She gave our whole lives color. We will never hear Aiden’s laughter again or hear him sing a song. Aiden will forever be stuck in our minds as a three year old. He was Peter Pan to Harmony’s Tinker Bell. If he had lived to Halloween of this year, he would have been the frog to Harmony’s princess; a costume that Sara designed for her.

One night recently, I looked through pictures on the computer; Harmony came to stand beside me. We looked at pictures of her and Aiden, and suddenly a picture of Sara came up. Harmony touched the screen and said, “Mommy, mommy I miss you so much. Would you please come back”? There is no comfort for a five year old girl who just wants to feel her mother’s hug. It is inevitable that her memories of Sara and Aiden will fade. And this is very sad because Sara was a wonderful mother, and Aiden was a bright shining boy who loved his sister.

I tell you these things not to get sympathy, but so that you and everyone here knows that they were not faceless. Should I have to put my grief on parade for you to know that--and everyone else to know that I am sad, it should be enough for me to say that our lives have changed forever. Life without Sara and Aiden is our new reality. Not one that we like, but we will live it because we have no other choice.

None of us can judge Mr. Troxell. If you have ever driven while on the phone, or texting, or changing a CD, or eating French fries, or talking to your children in the back seat, or if you’ve been driving while you were tired, you were driving while you were distracted and your fate could be the same as Mr. Troxell’s. Just as our lives changed forever on October 19^th, so did his. While I know that accidents happen, and I believe that that’s what this was, I do not want to hear excuses, not from Mr. Troxell, and not from people who feel the need to defend him. When you make a mistake, take responsibility for it.

If roles had been reversed here today and Sara were alive and receiving probation, I would tell her this, “You are being given a second chance to do whatever you want with your life. Use that second chance well”. I forgive you, because Sara would want me to and because hating you, or not forgiving you, cost me more than it does you.

Sara and I used to talk on the phone all the time, and I can’t tell you what I would give to see her name come up on my called ID, or to hear her voice just one more time. I read this line in a book recently, which describes our house now, “The silence here is very loud”.

The rules regarding piercing the corporate veil.

2011-05-05T06:00:00.000-07:00

In Florence Cement Co v Vettriano, __ Mich App __ (#295090, 5/3/2011) the Court of Appeals held that defendants used their corporation as a mere instrumentality for themselves as individuals, and did not treat the corporation as an entity separate from themselves. Such a failure is a hallmark of a claim for piercing the corporate veil. Essentially, where members do not treat an artificial entity as separate from themselves, neither will the Court.

The rules regarding piercing the corporate veil are applicable in determining whether to pierce the corporate veil of a limited liability company Lakeview Commons Limited Partnership v Empower Yourself, LLC, ___ Mich App ___ (2010). While “there is no single rule delineating when a corporate entity may be disregarded, the entire spectrum of relevant facts form the background for such an inquiry, and the facts are to be assessed in light of the corporation’s economic justification to determine if the corporate form has been abused.” In order for a court to order a corporate veil to be pierced, the corporate entity (1) must be a mere instrumentality of another individual or entity, (2) must have been used to commit a wrong or fraud, and (3) there must have been an unjust injury or loss to the plaintiff Rymal v Baergen, 262 Mich App 274, 293-294 (2004) (internal citations omitted); see also RDM Holdings, Ltd v Continental Plastics Co, 281 Mich App 678 (2008).

Separate Juries for Sexual delinquency cases not necessarily required

2011-05-02T07:23:00.000-07:00

In People v Breidenbach, __ Mich __ (#140153, 4/28/2011) the Supreme Court held that the sexual delinquency statute, MCL 767.61a, neither explicitly nor implicitly requires that a separate jury determine the issue of sexual delinquency apart from the primary offense. Separate jury trials under MCL 767.61a are discretionary, not mandatory. Should a trial court, in its discretion, determine that bifurcation is necessary in order to protect a defendant’s rights or ensure a fair determination of guilt or innocence, it may empanel separate juries.

The Michigan court rules contemplate that decisions regarding joint or severed trials for related charges lie firmly within the discretion of trial courts. MCR 6.120(B) provides: On its own initiative, the motion of a party, or the stipulation of all parties, except as provided in [MCR 6.120(C)], the court may join offenses charged in two or more informations or indictments against a single defendant, or sever offenses charged in a single information or indictment against a single defendant, when appropriate to promote fairness to the parties and a fair determination of the defendant’s guilt or innocence of each offense.

(1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based on a) the same conduct or transaction, or b) a series of connected acts, or c) a series of acts constituting parts of a single scheme or plan.

(2) Other relevant factors include the timeliness of the motion, the drain on the parties’ resources, the potential for confusion or prejudice stemming from either the number of charges or the complexity or nature of the evidence, the potential for harassment, the convenience of witnesses, and the parties’ readiness for trial.

This rule provides the proper framework for courts to analyze whether separate juries are required when sexual delinquency is charged in addition to a primary sexual offense. If “a fair determination of defendant’s guilt or innocence of each offense” would require separate juries, trial courts may order separate juries either sua sponte or on the motion of one of the parties.

The CSC requirement of Lifetime monitoring as it relates to a knowing, intelligent and understanding plea

2011-04-25T11:38:00.000-07:00

In People v Cole, __ Mich App __ (Unpub, #298893, 3/15/2011) defendant plead no contest two counts of second-degree criminal sexual conduct (CSC 2^nd) under MCL 750.520c(1)(a) (child under 13 years of age) pursuant to a sentence agreement of a “five year cap on the minimum as to all charges” and concurrent sentences. Defendant was sentenced accordingly.

However, MCL 750.520n required also that defendant, as a person convicted under section 520b or 520c for criminal sexual conduct committed by an individual 17 years old or older against an individual less than 13 years of age, be sentenced to lifetime electronic monitoring.

On appeal the Court of Appeals remanded the case to the trial court and ordered that defendant be afforded an opportunity to withdraw his plea of no contest to the two charges of CSC II because he was not advised of the lifetime electronic monitoring aspect of his sentence and thereby he cannot be held to have entered a knowing, intelligent, and understanding plea. (The sentence to lifetime electronic monitoring was not included in the announced sentence agreement and thereby exceeded the Cobbs agreement.)

The key seems to be the statutory language referring to the electronic monitoring requirement as being part of the sentence. MCL 750.520n characterizes lifetime electronic monitoring as a sentence. The electronic monitoring was thereby not a collateral consequence of the plea or sentence, but part of the sentence.

The Court of Appeals further stated “Moreover, being on a tether or subject to a comparable device is generally regarded as an alternative to jail or prison.” leaving for another day what effect the imposition of tether, SCRAM or electronic monitoring at the time of sentencing may have on sentence agreements.

Court of Appeals asks MSC to revisit paternity issues involving a biological father.

2011-04-15T09:51:00.000-07:00

In Snay v Vest, ___ Mich App ___ (Unpub, #293618, 11/18/2010) the Court of Appeals asked the Michigan Supreme Court to re-visit issues relating to paternity whereby a biological father does not even have standing to pursue legal recognition of his own child if the mother was married to another man.

In Snay plaintiff is the biological father of a child he fathered with defendant. Defendant is married to another man, and was married to this other man throughout her relationship with plaintiff and her pregnancy with the child. The ‘legal father’, defendant’s husband, is not present in either defendant’s life or the child’s life, nor has he been since before the biological father and defendant’s relationship. Defendant’s utilities were shut off, and two of defendant’s older children are under the jurisdiction of the probate court through guardianship. Plaintiff biological father is requesting custody of the child because he is her biological father and because he believes that defendant is not fit to parent.

The Court of Appeals held, however, under Michigan caselaw that to bring a claim for custody, plaintiff biological father must have standing. When a child is not born out of wedlock, the mother’s husband is the legal father, and the plaintiff biological father does not have standing because he is not her ‘legal father’. He is thereby denied standing to request custody of his biological child because of the marital status of the child’s mother.

The law that denies him standing is designed to provide for children born out of wedlock and to promote the sanctity of marriage. The facts suggest that this child is neither provided for, nor is the marriage intact. But, because there has been no court determination that the child is not the product of the marriage, the biological father cannot legally request custody of his own child, even though he is willing, and possibly better able, to parent her and provide for her.

Compensation for replacement services in a no fault third party benefits action

2011-04-08T06:39:00.001-07:00

In Johnson v Recca, __ Mich App __ (#294363, 4/5/2011) the Court of Appeals held that expenses for replacement services rendered more than three years after the date of the motor vehicle accident are compensable damages in third-party actions because replacement services expenses are “allowable expenses,” and because MCL 500.3135(3)(c) did not abolish tort liability for “[d]amages for allowable expenses . . . in excess of the daily, monthly, and 3-year limitations contained in [sections 3107 to 3110],”.

The permissibility of dividing social security benefits in a Judgment of Divorce

2011-03-18T12:25:00.000-07:00

In Biondo v Biondo, __ Mich App __ (Unpub, #294694, 3/15/2011) the Court of Appeals held that the circuit court may consider the parties’ anticipated social security benefits as one factor, among others, to be considered when devising an equitable distribution of marital property. But, in endeavoring to divide the marital estate, the court may not treat social security benefits as tantamount to a marital asset. Instead, the circuit court may take into account, in a general sense, the extent to which social security benefits received by the parties affect the Sparks factors.

Although federal law does not preempt laws governing divorce or domestic relations, a legal arena belonging to the states rather than the United States. Hisquierdo v Hisquierdo, 439 US 572, 581; 99 S Ct 802; 59 L Ed 2d 1 (1979), the federal interest in social security benefits preempts enforcement of a Judgment of Divorce and the parties’ agreement therein to equalize their social security benefits. Application of social security benefits for marital property purposes remains specifically excluded from this exception, as Congress declared in 42 USC 659(i)(3)(B)(ii) that the term “alimony” does not encompass “any payment or transfer of property or its value by an individual to the spouse or a former spouse of the individual in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.” Therefore, the circuit court erred by enforcing the consent judgment’s social security provision.

Applicability of Padilla to the Holmes Youthful Trainee Act.

2011-03-14T10:31:00.000-07:00

The Michigan Supreme Court in People v Ali Abbas, __ Mich __ (#141797, 3/9/2011)in lieu of granting leave to appeal, ordered a remand to the Court of Appeals for consideration as on leave granted. The Court of Appeals was ordered to address whether: (1) if, as the defendant contends, his trial counsel failed to advise him that he was not eligible for Holmes Youthful Trainee Act (MCL 762.11 et seq.) status, the Kalamazoo Circuit Court nevertheless correctly held that the defendant could not meet the standard for establishing entitlement to relief from judgment absent the retroactive application of Padilla v Kentucky, 599 US ___ ; 130 S Ct 1473; 176 L Ed 2d 2928 (2010); and (2) the decision in Padilla may be applied retroactively in this case.

SCAO study on the impact of ordering cases to Mediation

2011-02-25T06:40:00.000-08:00

The State Court Administrator Office has released a study on the impact of ordering cases to mediation where one or more parties rejected case evaluation awards under $25,000.

Mediation, formalized through a series of court rules adopted in 2000, has been considered to be one tool courts could use to help parties resolve their case earlier and without adjudication by the court.

This study examined the effect of ordering mediation in select civil cases where case evaluation awards have been rejected. Ninety-three randomly selected cases from the circuit courts in Kent, Macomb, and Oakland counties were included in the study. The cases met the following criteria: (1) the case evaluation award was under $25,000; (2) the award was rejected by one or all of the parties; (3) parties were ordered to mediation either with a private mediator or with a Community Dispute Resolution Program (CDRP) center; (4) the case was ordered to mediation under the pilot; and (5) the case was disposed between March 1, 2007, and September 17, 2009.

Seventy-seven (83 percent) of the cases settled prior to trial, 9 (10 percent) were disposed by summary disposition or default judgment, and the remaining 7 (7 percent) were disposed by trial. On average, cases were 340 days old when ordered to mediation. Forty percent of the cases were disposed within an average of 66 days from the order to mediate. After mediation was conducted and an agreement was reached at the table, an additional 30 cases were disposed; thus 67 cases (72 percent) were disposed within an average of 78 days from the order to mediate. An additional 15 (88 percent) cases settled after a settlement conference or mediation; an average of 99 days after the order to mediate.

Cases settling either pre-mediation or through the mediation event were disposed on average within 93 days of the order to mediate; cases not settled were disposed on average 178 days after the order to mediate. Settlement rates at mediation were higher when all summary disposition motions were decided prior to mediation than when a summary disposition motion was pending. Cases with trial dates scheduled early did not have higher settlement rates than cases without a trial date scheduled early. Further, nearly one-half of the cases with early scheduling of trial dates were ultimately escheduled between one and three times. Taken together, the study suggests that the practice of early scheduling of trial dates should be reassessed for its efficacy in promoting settlement.

Whether a premises owner owes a duty to an employee of an independent contractor.

2011-02-10T06:45:00.000-08:00

In Jones v Daimler Chrysler Corporation, __ Mich __ (#140889, 2/4/2011) the Michigan Supreme Court re-affirmed that a premises owner does not have a duty to protect an employee of an independent contractor hired to perform construction work on the owner’s premises, from the hazardous condition that contributed to the plaintiff’s injury, where the defendant delegated to the contractor the task of performing the construction work. Banaszak v Northwest Airlines, Inc, 485 Mich 1034 (2010); Young v Delcor Assoc, 477 Mich 931 (2006). Moreover, even if premises liability had applied, the injured plaintiff could not have recovered where he was aware of the hazard, and indeed had ordered its creation. Riddle v McLouth Steel Products Corp, 440 Mich 86 (1992). An owner of property cannot be held liable under premises liability law for a design of the property that permits an invitee or person in control of the property to create a hazardous condition where none existed before.

Use of a screen to shield a child complainant

2011-02-03T11:59:00.000-08:00

In People v Rose, __ Mich __ (#141659, 2/2/2011) the Michigan Supreme Court granted leave to appeal whether the use of a screen to shield a child complainant from the defendant during testimony violates the Confrontation Clause or prejudices the defendant because it impinges on the presumption of innocence.

The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae

Evidence of defendant’s prior conviction for criminal sexual conduct may be admissible under MCL 768.27a.

2011-01-31T09:37:00.000-08:00

In People v Yeakey, Unpub, Mich App (#292912, 1/18/2011) the Court of Appeals re-affirmed that evidence of a defendant’s prior conviction for criminal sexual conduct is admissible and “may be considered for its bearing on any matter to which it is relevant” under MCL 768.27a.

MRE 404(b)(1) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case. To be admissible under MRE 404(b), other acts evidence 1) must be offered for a proper purpose, 2) must be relevant, and 3) must not have a probative value substantially outweighed by its potential for unfair prejudice. People v Knox, 469 Mich 502 (2004).

MCL 768.27a provides that (1) notwithstanding section MCL 768.27, in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered. (2) As used in this section: (a) “Listed offense” means that term as defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722. (b) “Minor” means an individual less than 18 years of age.

Under MCL 768.27a, if a defendant is accused of committing a listed offense against a minor, the prosecution may present evidence that the defendant committed another listed offense against a minor without justifying the admissibility of the evidence under MRE 404(b). People vPattison, 276 Mich App 613 (2007). While such evidence is still subject to the requirements of MRE 401 and 403, the statute allows, in many cases, “evidence that previously would have been inadmissible, because it allows what may have been categorized as propensity evidence to be admitted.

In Yeakey the prosecution filed a “Notice of Intent to Present Other Acts Evidence at Trial Pursuant to MCL 768.27a and MRE 404(b).” There was apparently no objection to the introduction of such evidence by defense counsel and there is no indication whether the trial court allowed the admission of the challenged evidence under MCL 768.27a, or MRE 404(b), or both.

It is uncontested that defendant was previously convicted of a listed offense against a minor, as defined in MCL 768.27a, and was charged in the instant matter with a listed offense against a minor, third degree criminal sexual conduct. The evidence of defendant’s prior conviction was thus admissible and “may be considered for its bearing on any matter to which it is relevant” under MCL 768.27a. Further, evidence of defendant’s prior conviction was relevant under the definition set forth in MRE 401, because the evidence made the likelihood of defendant’s behavior with K. more probable. People v Mann, ___Mich App ___ (2010). And the probative value of defendant’s prior conviction was not substantially outweighed by the danger of unfair prejudice under MRE 403. The defendant’s prior conviction was probative on the issue of whether K. was telling the truth at trial, or whether defendant was telling the truth. Defendant denied that any sexual contact took place. He further portrayed himself as an honest person and one that would admit when he has done something wrong. The testimony concerning defendant’s prior conviction focused, in large part, on whether he initially admitted to police in that case that he had had sexual intercourse with an underage girl, or whether he had denied it. Given that defendant’s credibility was directly placed at issue and his denial of any sexual contact also placed K.’s credibility at issue, the circumstances surrounding his prior criminal sexual conduct conviction were highly probative and the value of this evidence was not substantially outweighed by unfair prejudice.

Finally, the trial court instructed the jury: The prosecution has introduced evidence of a claimed sexual misconduct by the defendant with a minor, for which he is not now on trial. Before you may consider such alleged acts as evidence against the defendant, you must first find that the defendant actually committed those acts. If you find that the defendant did commit those acts, you may consider them in deciding if the defendant committed the offense for which he is now on trial. Because a jury is presumed to follow its instructions, People v Abraham, 256 Mich App 265 (2003), it is presumed that the jury followed the trial court’s caution regarding the use of defendant’s prior conviction in this matter.

The trial court did not thereby abuse its discretion in admitting evidence of defendant’s prior criminal sexual conduct conviction under MCL 768.27a. (The Court of Appeals finally remarked that it wan not therefore necessary to address whether it was also alternatively admissible under MRE 404(b).

The failure to advise a defendant of a SORA requirement when registration is succinct, clear and explicit is ineffective assistance of counsel.

2011-01-27T07:03:00.000-08:00

In People v Fonville, __ Mich App __ (#294554, 1/25/2011) the Court of Appeals ordered that defendant be allowed to withdraw his plea of guilty to child enticement because defense counsel failed to advise defendant that he would be required to register under the SORA. Like deportation, sex offender registration is not a criminal sanction, but is a particularly severe penalty. In addition to the typical stigma that convicted criminals are subject to upon release from imprisonment, sexual offenders are subject to unique ramifications, including, for example, residency reporting requirements70 and place of domicile restrictions. Moreover, sex offender registration is “intimately related to the criminal process.” The “automatic result” of sex offender registration for certain defendants makes it difficult “to divorce the penalty from the conviction.”

If the sex offender registration statute is “succinct, clear, and explicit” in defining the registration requirement for a particular conviction, applying the Padilla rationale, defense counsel must advise a defendant that registration as a sexual offender is a consequence of his guilty plea. The failure to inform a pleading defendant that his plea will necessarily require registration as a sex offender will thereby affect whether the plea was knowingly made.

The 180-day rule to dispose of new criminal charges against inmates in Michigan correctional facilities.

2011-01-21T07:46:00.000-08:00

In People v Lown, __ Mich __ (#139969, 1/14/2011) the Michigan Supreme court re-affirmed that the statutory “180-day rule”, established by MCL 780.131 and MCL 780.133, to dispose of new criminal charges against inmates in Michigan correctional facilities requires dismissal of the case if the prosecutor fails to commence action on charges pending against an inmate within 180 days after the Department of Corrections delivers notice of the inmate’s imprisonment. The rule does not require that a trial be commenced or completed within 180 days of the date notice was delivered; it is sufficient that the prosecutor “proceed promptly” and “move[] the case to the point of readiness for trial” within the 180-day period. People v Hendershot, 357 Mich 300, 304 (1959). There is, however, no good-faith exception to the rule. Instead, good faith is an implicit component of proper action by the prosecutor, who may not satisfy the rule simply by taking preliminary steps toward trial but then delaying inexcusably.

The statutory 180-day period is, by the plain terms of the statute, a fixed period of consecutive days beginning on the date when the prosecutor receives the required notice from the DOC. Thus, the relevant question is not whether any delay is attributable to the prosecutor, but whether action was commenced within 180 calendar days following the date the prosecutor received the notice. If so, the rule has been satisfied unless the prosecutor’s initial steps are “followed by inexcusable delay beyond the 180-day period and an evident intent not to bring the case to trial promptly. Accordingly, a court should not calculate the 180-day period by apportioning to each party any periods of delay after the DOC delivers notice.

A violation of the 180-day rule deprives the court of “jurisdiction under MCL 780.133 and specifically divests the court of personal jurisdiction over the defendant for the particular action, and the court must dismiss the matter with prejudice.

Michigan Supreme Court grants leave to appeal in two criminal cases.

2011-01-13T10:11:00.000-08:00

The Michigan Supreme Court, in the waning days of 2010, granted leave to appeal in two criminal cases leaving open the possibility of allowing criminal defendants defenses previously unavailable.

In People v Harris, ___ Mich ___ (#141513, 11/30/2010) the Supreme Court granted leave to appeal to address the prior decision of People v Adams, 262 Mich App 89 (2004) that inability to pay is not a defense to the crime of felony non-support under MCL 750.165 is an incorrect reading of the statute or unconstitutional; (2) whether the trial court abused its discretion when it denied the defendant’s post-sentencing motion to withdraw his plea; and (3) whether the trial court erred when it adopted the child support arrearage amount that had been determined by family court as the restitution to be imposed in this criminal case, or whether the defendant waived that issue. The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.

In People v Moreno, Jr, ___ Mich ___ (#141837, 12/29/2010) the Court granted leave to appeal to address a defendant's right in his or her home to resist an illegal arrest and the availability of self defense. The parties were requested to address the following issues: (1) whether a person present in his or her own home can lawfully resist a police officer who unlawfully and forcibly enters the home, without violating MCL 750.81d; (2) if not, whether, so interpreted, MCL 750.81d is unconstitutional; and (3) whether a defendant prosecuted under MCL 750.81d for resisting a police officer who unlawfully and forcibly enters the defendant’s home may claim self-defense.

Denial of grandparenting time.

2011-01-05T12:43:00.001-08:00

In Wernette and Finch v Wernette, Unpub (1/4/2011, 293309 the Court of Appeals affirmed the Circuit Court’s denial of grandparenting time after the suicide of the grandfather’s son, the father of the children. The Court of Appeals suggested that a successful grandparenting time action or motion must include expert testimony, or at least the testimony of knowledgeable professionals such as school personnel or "others trained in children’s behavior or mental health." Without such testimony, the grandparent will have difficulty proving that denial of grandparenting time creates a substantial risk of harm to the child's mental, physical, or emotional health as required by the statute.

Plaintiff grandfather argued that common sense should have led the court to see that it would be damaging to the children to cut off his relationship with the children, already emotionally impacted by their father’s death. However, under MCL 722.27b(4)(b) an appeal to common sense does not overcome the presumption that the denial of grandparenting time does not create such a risk and even when the presumption is overcome, visitation is only ordered in those situations where the court decides it is in the best interests of the children. MCL 722.27b(6).

The denial of court-ordered grandparenting time is not equivalent to the complete denial of the right to see the children. It is true that the circumstances seem to indicate that at this time defendant is unlikely to allow visitation. However, circumstances can change. It is not that the court is preventing visitation—the court is simply not ordering that it occur.

Court of Appeals decision expanding the use of 404b evidence in OWI trials.

2011-01-03T07:59:00.001-08:00

In People v Amine, __ Mich App __ (Unpub, #294345, 12/21/2010) the Court of Appeals affirmed defendant’s jury trial conviction for OWI-3^rddenying his argument that the trial court improperly admitted other acts evidence of a prior OWI arrest under MRE 404(b). In the prior bad act and existing charge defendant Amine was intoxicated and sitting in the driver’s seat of a car when the police arrived. In each he denied that he had been driving the car, stated that the driver was someone close to him, and that person confirmed his explanation. Although there were slight differences, defendant’s behavior in both incidents otherwise was substantially similar. He reacted to each situation—which was functionally the same because he was faced with the possibility of an OWI arrest—with the same defense. From the incidents’ similarities, the jury was able to infer that his present defense was another manifestation of the common pattern defendant employs when discovered drunk behind the wheel of a car. Such an inference does not rely on character evidence, and thus, the trial court did not abuse its discretion in admitting the evidence under MRE 404(b) under the three step test of People v Vandervliet, 444 Mich 52, 74 (1993). Under Vandervliet, the evidence must be relevant to an issue other than propensity, relevant under MRE 402 to a fact at issue at trial, and it must survive a MRE 403 balancing process determining if the danger of undue prejudice substantially outweighs the evidence’s probative value. Id. at 74-75. If, however, the only relevance is to character or the defendant’s propensity to commit the crime, the evidence must be excluded. People v Crawford, 458 Mich 376, 385 (1998). In addition, under Vandervliet “the trial court, upon request, may provide a limiting instruction under Rule 105.” Id. at 75. The Court of Appeals further, weighing in favor of admitting such testimony reiterated that, “it is essential that prosecutors and defendants be able to give the jury an intelligible presentation of the full context in which disputed events took place.” People v Sholl, 453 Mich 730, 741 (1996).

Termination of parental rights does not automatically end an obligation of support.

2010-12-22T09:48:00.000-08:00

The Legislature has statutorily specifically defined parental rights and parental obligations such that issues involving parental rights are distinct from parental obligations. Nothing in the statutory structure indicates that the loss of parental rights automatically results in the loss of parental obligations. Rather, a parental support obligation continues unless a court of competent jurisdiction, in the exercise of its discretion, modifies or terminates the obligation. In re Beck, ___ Mich ___ (#140842, 12/20/2010)

The premise of Open & Obvious requires that the condition be open and obvious upon casual inspection.

2010-12-16T09:41:00.000-08:00

In Watts v Michigan Multi-King, __ Mich App __ (#293185, 12/14/2010) the court of appeals rejected defendant’s assertion that a wet floor in a restaurant is a common everyday hazard of which customers are expected to be aware, making it always open and obvious regardless of its visibility. In Watts the plaintiff introduced evidence that this was not the case. Although the parties essentially agreed that the floor had been mopped shortly before plaintiff’s fall and the report from the store indicated that there were “wet floor” signs present, plaintiff testified that there were no signs present. Plaintiff also testified that both before and after her fall, the tile did not look shiny or wet and nothing else about its appearance appeared out of the ordinary. Summary disposition was thereby improperly granted. The premise of open and obvious requires that the hazard would be “obvious” upon “casual inspection.” O’Donnell v Garasic, 259 Mich App 569 (2003).

A landowner has a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition on the land. Lugo v Ameritech Corp, Inc, 464 Mich 512 (2001). However, a premises possessor is not generally required to protect an invitee from open and obvious dangers, unless special aspects of a condition make even an open and obvious risk unreasonably dangerous, in which case the possessor must take reasonable steps to protect invitees from harm. Id. The question of whether a condition is “open and obvious” depends on whether “it is reasonable to expect an average person of ordinary intelligence to discover the danger upon casual inspection.” O’Donnell, supra. The test is objective; “the inquiry is whether a reasonable person in the plaintiff's position” would have done so. Slaughter v Blarney Castle Oil Co, 281 Mich App 474 (2008). When deciding a summary disposition motion based on the open and obvious danger doctrine, “it is important for courts . . . to focus on the objective nature of the condition of the premises at issue, not on the subjective degree of care used by the plaintiff.” Lugo, 464 Mich at 523-524. If genuine issues of material fact exist regarding the condition of the premises and whether the hazard was open and obvious, summary disposition is inappropriate. See Bragan v Symanzik, 263 Mich App 324 (2004).

Motion to change custody versus a motion to modify parenting time.

2010-12-03T08:18:00.000-08:00

In Shade v Wright, __ Mich App __ (#296318, 12/2/2010) the Court of Appeals held that the change in circumstances or proper cause required to modify a court order differs depending on whether the decision is one of custody or parenting time. With regards to custody, if there is the required change of circumstances or proper cause, custody decisions require findings under all of the best interest factors under the Child Custody Act, MCL 722.23. If it is a motion to modify parenting time, although the statutory best interest factors and the factors listed in the parenting time statute, MCL 722.27a(6), are both relevant, parenting time decisions require only findings on the contested issues from the two statutes.

A. The change in circumstances or proper cause requirement.

The term “‘[c]hild-custody determination’ means a judgment, decree, or other court order Providing for legal custody, physical custody, or parenting time with respect to a child, and includes a permanent, temporary, initial, and modification order. . . .” MCL 722.1102(c). Under MCL 722.27(1)(c), a trial court may “[m]odify or amend its previous judgments or orders for proper cause shown or because of change of circumstances . . . .” A modification of such a judgment or order is only permissible when it is in the minor child’s best interests. MCL 722.27(1)(c).

B. The burden of proof.

If a modification would change the established custodial environment of a child and would thereby be a change in custody, the moving party must show by clear and convincing evidence that it is in the child’s best interest. Pierron v Pierron, 486 Mich 81, 92 (2010); MCL 722.27(1)(c). If, however, the proposed change does not change the custodial environment, however, the burden is on the parent proposing the change to establish, by a preponderance of the evidence, that the change is in the child’s best interests. Pierron, 486 Mich at 93.

C. Custody.

In Vodvarka v Grasmeyer, 259 Mich App 499 (2003) the Court of Appeals articulated the proper cause and change of circumstances sufficient to warrant a change of custody. Proper cause means one or more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken.

With respect to child custody disputes, “[t]he goal of MCL 722.27 is to minimize unwarranted and disruptive changes of custody orders, except under the most compelling circumstances.” Corporan v Henton, 282 Mich App 599, 603 (2009). “Providing a stable environment for children that is free of unwarranted custody changes . . . is a paramount purpose of the Child Custody Act . . . .” Vodvarka, 259 Mich App at 511. Therefore, in the context of a child custody dispute, the purpose of the proper cause or change of circumstances requirement is “to ‘erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.’” Id. at 509, quoting Heid v AAASulewski (After Remand), 209 Mich App 587, 593-594 (1995).

To establish “proper cause” necessary to revisit a custody order, a movant must prove by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court. The appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child’s well-being. When a movant has demonstrated such proper cause, the trial court can then engage in a reevaluation of the statutory best interest factors. [Id. at 512.] In order to establish a “change of circumstances,” a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed. Again, not just any change will suffice, for over time there will always be some changes in a child’s environment, behavior, and wellbeing. Instead, the evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. . . [Id at 513-514].

D. Parenting Time.

Nothing in the Vodvarka opinion requires that the standards used to determine the existence of proper cause and change of circumstances for custody determinations applies to determinations regarding parenting time, absent a conclusion that a change in parenting time will result in a change in an established custodial environment. Id. at 509. The proper cause and change of circumstances definitions as articulated in Vodvarka are guided by the best interest factors in MCL 722.23(a)-(l), and do not take into account the parenting time factors in MCL 722.27a(6)(a)-(i).

MCL 722.27a provides, in relevant part: (6) The court may consider the following factors when determining the frequency, duration, and type of parenting time to be granted: (a) The existence of any special circumstances or needs of the child. (b) Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing. (c) The reasonable likelihood of abuse or neglect of the child during parenting time. (d) The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time. (e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time. (f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order. (g) Whether a parent has frequently failed to exercise reasonable parenting time. (h) The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent. (i) Any other relevant factors.

A more expansive definition of proper cause or change of circumstances is appropriate for determinations regarding parenting time when a modification in parenting time does not alter the established custodial environment. The Vodvarka concerns do not exist when a modification of parenting time does not alter the established custodial environment because determinations regarding child custody and parenting time serve different purposes. Whereas the primary concern with child custody determinations is the stability of the child’s environment and avoidance of unwarranted and disruptive custody changes, the focus of parenting time is to foster a strong relationship between the child and the child’s parents. See MCL 722.27a. To that end: [p]arenting time shall be granted in accordance with the best interests of the child and it is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents, in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent. [MCL 722.27a(1).]

Thus, the very normal life change factors that Vodvarka finds insufficient to justify a change in custodial environment are precisely the types of considerations that trial courts should consider in making determinations regarding modification of parenting time. If the change is a parenting time decision, the normal life changes that occur with a minor child may be sufficient to establish the required change in circumstances or proper cause.

The trial court's authority to issue a protective order to ensure compliance with HIPAA.

2010-12-01T06:30:00.000-08:00

In Szpak v Inyang, __ Mich App __ (#292625, 11/23/2010) the Court of Appeals held that in conjunction with a defendant’s request to ex-parte interview plaintiff’s treating physicians under HIPAA, it is an abuse of discretion for the trial court to require that plaintiff’s counsel receive notice of, and an opportunity to attend, ex parte interviews by defense counsel with plaintiff's treating physicians. The trial court's authority to issue a protective order to ensure compliance with HIPAA is controlled by MCR 2.302(C). The imposition of conditions unrelated to compliance with HIPAA, or any related privacy concerns is not permissible in the absence of evidence to support a reasonable concern for intimidation, harassment, and the like.

In determining spousal support the trial court is to “balance the incomes and needs of the parties".

2010-11-24T09:36:00.000-08:00

In Myland v Myland, ___ Mich App ___ (#292868, 11/23/2010) the Court of Appeals reversed an order of spousal support (alimony) based on the trial court’s use of an arbitrary formula to calculate an award of spousal support. In determining spousal support the trial court is to “balance the incomes and needs of the parties in a way that will not impoverish either party” based on what is “just and reasonable under the circumstances of the case.” Moore v Moore, 242 Mich App 652, 654 (2000).

Among the factors to be considered are: (1) the past relations and conduct of the parties, (2) the length of the marriage, (3) the abilities of the parties to work, (4) the source and amount of property awarded to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony, (7) the present situation of the parties, (8) the needs of the parties, (9) the parties’ health, (10) the prior standard of living of the parties and whether either is responsible for the support of others, (11) contributions of the parties to the joint estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on a party’s financial status, and (14) general principles of equity [Olson v Olson, 256 Mich App 619, 631 (2003). MCL 552.23; Korth v Korth, 256 Mich App 286, 288 (2003).

Obligation of defense attorney to request an expert witness.

2010-11-23T07:17:00.000-08:00

People v Owens, Unpub, (288074, 11/2/2010)

Defendant was charged with CSC. Prosecutor argued victim credibility based on the ‘forensic interview’ of the victim. A reasonable trial counsel presented with these facts would have investigated the limitations on the forensic interview process and would have called an expert to testify about those limits as well as about the common behaviors of adults who sexually abuse children. At the Ginther hearing, defense counsel stated that he did not do any research on sexual abusers' behavior patterns or consult an expert because he believed that "it was obvious that this [offense] wouldn't happen . . . under these circumstances." The court concluded that had defense counsel engaged in proper investigation, he would have learned that adults who sexually abuse children often engage in specific acts to "groom" their victims. Since there was no evidence that defendant ever engaged in grooming behavior with the alleged victim or any other child, defense counsel could have used an expert's testimony "to provide context for the allegations and to highlight the improbable nature" of the victim's description of events. O, the proposed defense expert, testified at the Ginther hearing that she could have offered expert testimony that external factors in the case might have impacted the victim's description of the incident. O explained that several factors such as the victim's age, questioning by her family and others before the forensic interview, and the victim's family's criticism of defendant during the ride home about his treatment of the victim's brother (who was dating defendant's daughter) could have tainted the victim's memory of the events. O also could have offered testimony that the forensic interview was not dispositive of whether the victim's account of the incident was tainted by interaction with her family. For that reason, defendant’s trial counsel’s decision not to investigate and call an expert on this area fell below an objective standard of reasonableness under prevailing professional norms. Further, because this case involved a close credibility contest, we cannot conclude that this error was harmless. See also People v Yost, 278 Mich App at 387.

Obligation of the military spouse re retirement pay.

2010-11-22T10:02:00.000-08:00

In Megee v Carmine, ___ Mich App ___ (#292207, 11/16/2010) the Court of Appeals held that a military spouse remains financially responsible to compensate his/her former spouse in an amount equal to the share of retirement pay ordered to be distributed to the former spouse as part of a divorce judgment’s property division, notwithstanding the military spouse making a unilateral and voluntary postjudgment election to waive the retirement pay in favor of disability benefits contrary to the terms of the divorce judgment.

Pursuant to a judgment of divorce, defendant was awarded 50 percent of plaintiff’s Navy disposable retirement pay as part of the property division, and the judgment incorporated a Qualified Domestic Relations Order (QDRO) to enforce that provision. The QDRO acknowledged the 50-percent division of plaintiff’s disposable retirement pay, also referred to therein as his pension, and it prevented plaintiff from making another benefit election “that would otherwise reduce the monthly pension allotment without the written consent of defendant.

The trial court does not have authority to compel payment from a military disability compensation fund. Compensation to be paid the former spouse as his or her share of the property division in lieu of the waived retirement pay can come from any source the military spouse chooses, but it must be paid to avoid contempt of court.

Tortious interference with a business expectancy.

2010-11-18T06:33:00.000-08:00

Cedroni Associates, Inc v Tomblinson, ___ Mich App ___ (#287024, 11/16/2010)

With respect to a claim of tortious interference with a business expectancy, a plaintiff must prove (1) the existence of a valid business expectancy, (2) knowledge of the expectancy on the part of the defendant, (3) an intentional interference by the defendant inducing or causing a termination of the expectancy, and (4) resultant damage to the plaintiff. Dalley v Dykema Gossett, PLLC, 287 Mich App 296 (2010); Blazer Foods, Inc v Restaurant Properties, Inc, 259 Mich App 241 (2003). A valid business expectancy is one in which there exists a reasonable likelihood or probability that the expectancy will come to fruition; mere wishful thinking is not sufficient to support a claim. First Public Corp v Parfet, 246 Mich App 182 (2001), vacated in part on other grounds 468 Mich 101 (2003); Trepel v Pontiac Osteopathic Hosp, 135 Mich App 361 (1984).

Although the exercise of professional business judgment in making recommendations relative to government contracts and projects must be afforded some level of protection and deference, a cause of action may exist if there exists evidence suggesting that the ostensible exercise of professional business judgment is in reality a disguised or veiled attempt to intentionally and improperly interfere with the contractual or expectant business relationships of others. It is then for the trier of fact to sort through all of the conflicting evidence and assess the credibility of the parties’ claims and their witnesses.

Sentence or Jail Credit

2010-11-12T08:43:00.000-08:00

MCL 769.11b provides that whenever a person is convicted of any crime within this state and has been in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing. The idea being to equalize the position of defendants unable to post bond with defendants financially able to post bond.

If a defendant is in another jail awaiting trial on unrelated charges, the Court of Appeals held in People v Shipp, 141 Mich App 610 (1985) that this calculation of ‘sentence or jail credit’ commences from the date upon which a hold is placed upon the defendant.

This right to ‘sentence or jail credit’, however, does not apply to defendants who are serving a jail (or prison) sentence after being sentenced in another case or to defendants who have a parole detainer/hold placed on them because of the alleged commission of a new felony while on parole. The explanation being that the defendant is incarcerated regardless of whether (s)he would otherwise be eligible for bond before conviction on the new offense. Because the defendant is incarcerated regardless of whether (s)he is able to furnish bond for the new offense, the jail credit statute, supra, does not apply. People v Idziak, 484 Mich 549, 562 (2009).

Child support re-payment based on the payer’s ability to pay and the best interests of the child.

2010-10-25T10:23:00.000-07:00

In December 2009, the Legislature amended MCL 552.605e to permit courts to establish a payment plan for a payer in arrears that is based on both the payer’s ability to pay and the best interests of the child, and MCL 552.605e no longer precludes payers who have been prosecuted for felony nonsupport from filing an arrearage payment plan. The Legislature also modified the procedure to be used to discharge amounts assessed as surcharges. The following are excerpts from the SCAO Memorandum to Family Court Judges and Referees.

The payment plan must require payers to pay a reasonable portion of the amount of the arrearage over a reasonable time period. Under MCL 552.603(d), a party or the friend of the court (FOC) may file a motion (FOC 109) to request that the court establish a payment plan that provides discharge of previously assessed surcharges and allows future surcharges to be waived. The payment plan may address payee-owed arrears, state owed arrears, or both payee- and state-owed arrears. If the court determines by a preponderance of the evidence that the payment plan is in the best interest of the parties and the children, the court must approve the proposed payment plan.

A. Arrearages Owed to a Payee

If the court determines that the payment plan is in the best interest of the parties and the children, and that the arrearages are owed only to the payee, the court must further determine that both of the following conditions apply before the court grants the motion for a payment plan: 1. The payee has consented to entry of the order under circumstances that satisfy the court that the payee is not acting under fear, coercion, or duress; and 2. The payer establishes that the arrearage did not arise from conduct that the payer engaged in exclusively for the purpose of avoiding a support obligation.

B. Arrearages Owed to the State

When the arrearages are owed solely to the state, the court must determine that all of the following conditions apply before the court grants the motion for a repayment plan: 1. The arrearage did not arise from conduct that the payer engaged in exclusively for the purp ose of avoiding payment of a support obligation; 2. In the absence of a court-approved payment plan, the payer has no present ability, and will not have an ability in the foreseeable future, to pay the arrearage; 3. The payment plan will require the payer to pay a reasonable portion of the arrearage over a reasonable period of time in accordance with the payer’s current ability to pay; and 4. The Office of Child Support or its designee has been served with a copy of the motion at least 56 days before the hearing.

B. Additional Requirements

The court order that approves a payment plan may also contain other conditions that a payer must meet, including, but not limited to:

1. Participation in a parenting program;

2. Drug and alcohol counseling;

3. Anger management classes or participation in a batterer intervention program;

4. Participation in a work program;

5. Counseling; or

6. Continued compliance with a current support order.

The court may impose these additional conditions at its discretion. If the court does order additional conditions, the FOC must monitor the payer’s compliance.

IV. Termination of the Arrearage Payment Plan

At any time, any interested party may move to terminate an arrearage payment plan and reinstate the arrearage amount for good cause. Typically, a termination motion will be filed by an actual party to the case, and not the court, the FOC, or a state agency. “Good cause” for termination includes, but is not limited to:

1. The payee has become a recipient of public assistance.

2. The payer has received property in an amount that is sufficient to pay a substantial portion of the amount discharged. Examples include:

a. Lottery proceeds or other winnings;

b. A settlement under an insurance policy;

c. A judgment in a civil action; or

d. An inheritance.

V. Fulfilling the Requirements of an Arrearage Payment Plan

Upon completing the repayment plan, the payer must provide written notice to all “interested parties” and request that the court conduct a hearing to consider the discharge of any remaining arrearage. After notice and hearing, if the court finds that the payer has fully complied with the payment plan, the court shall enter an order that discharges any remaining arrearage. If the court finds that the payer has only substantially complied with the payment plan, the court may enter an order that discharges all or a portion of the remaining arrearage, depending on the circumstances.

Until the payer has fully complied with the payment plan, all mandatory enforcement remedies, such as credit reporting and tax refund offset, shall continue on any arrearage amounts that are subject to the payment plan. MCL 552.605e allows discretionary enforcement remedies to also continue, but a referee, judge, or other person conducting an administrative review hearing on the matter must stop the discretionary enforcement if the payer is currently in compliance with the payment plan.

Misrepresentation of income to the Friend of the Court

2010-10-22T13:41:00.000-07:00

A party’s misrepresentation of income to a Referee in connection with the setting of child support necessitating additional proceeds and a delayed implementation of an appropriate child support order justifies the imposition of attorney fees and costs against the offending party. Keinz v. Keinz, ___Mich App___ (#292781, 9/16/10).

MDOT explains the new flashing yellow left-turn signal

2010-10-21T06:51:00.000-07:00

To help motorists understand the new flashing yellow left-turn signal, the Michigan Department of Transportation (MDOT) has posted an animated video on MDOT's YouTube channel: www.youtube.com/MichiganDOT.

For years, Michigan drivers have been making left turns from lanes where the signal light is flashing red. But soon there will be a new traffic signal that offers a safer, more efficient way for traffic to turn left at busy intersections.

The signals are being introduced nationwide and ultimately will be required at all intersections where there is a separate left-turn arrow signal. This change is the result of a national study conducted by the Federal Highway Administration, which demonstrated that the new signal helps prevent crashes, moves more traffic through an intersection, and provides more flexibility in traffic management.

The flashing yellow arrow is part of a four-arrow light. What do you do when you see the flashing yellow? It's simple: be cautious, and after yielding to oncoming traffic and pedestrians, make your left turn.

After it flashes, the flashing yellow then turns to a solid yellow left-turn arrow, which means prepare to stop.

When the light turns to a solid green arrow, turn left. Oncoming traffic must stop.

Just remember: a flashing yellow signal means turn with caution. More information, including a link to download a brochure and a demonstration of how the signal works, is available at www.michigan.gov/flashingyellowarrow.

Charge for FOC Custody or Parenting time Investigation.

2010-10-13T07:07:00.000-07:00

Effective January 8, 2010, MCL 552.505(3) was amended to permit Friend of the Court offices to charge parties an amount for the expense of conducting a custody or parenting time investigation, when a party requests one, pursuant to standards issued by the State Court Administrative Office (SCAO). The following includes excerpts from the SCAO memorandum establishing the standards for charging a party for the FOC’s expense of conducting an investigation ordered under MCL 552.505(1)(g).

A. Background

1. When a dispute involving custody or parenting time issues exists in a domestic relations matter, the court may order the Friend of the Court (FOC) office to investigate the relevant facts and make a written report and recommendation to the parties and to the court. MCL 552.505(1)(g).

2. MCL 552.505(3) permits the FOC office to charge parties in a dispute an amount for the expense of conducting an investigation and making a report, and outlines several parameters regarding the amount that an office may charge.

a. An office may only charge for its expenses pursuant to standards prescribed by the State Court Administrative Office (SCAO).

b. An office cannot assess an amount to the parties unless a party requests an investigation.

c. The amount assessed cannot exceed the office’s expense to conduct the custody or parenting time investigation and make the report and recommendation ordered under MCL 552.505(1)(g).

d. If the court waives or suspends fees in a case due to indigence or inability to pay, the office shall not charge for its investigation. If the court orders partial waiver or suspension of fees in the case due to indigence or inability to pay, the office shall reduce the amount charged.

e. If the court determines that a party’s request for an investigation was frivolous, the court may order that the amount be charged only against the requesting party.

f. Monies collected for an office’s expenses to conduct investigations must be deposited into the friend of the court fund.

3. The term “investigation” means the work and processes used to find information and to make a written report and recommendation to fulfill FOC duties under MCL 552.505(1)(g). The term “office” means the local friend of the court office that conducts an investigation.

B. Standards

1. Local Administrative Order Required

a. To establish procedures governing charges for FOC investigation expenses, each circuit must adopt a local administrative order (LAO) pursuant to MCR 8.112(B) that conforms with SCAO model LAO 34 - Friend of the Court Investigation Expenses.

b. An office may only charge amounts for an investigation as permitted by the LAO approved by the SCAO.

2. Investigation Requested

a. The office may only charge an amount if a party requests an investigation. Before the office can assess charges for its expenses, any party or a party’s attorney must expressly request an investigation. Because the court may order an investigation without either party requesting it, the office cannot infer a request based solely on a motion to change a custody or parenting time order or upon a contested dispute.

b. The office must base its determination of a request for investigation on an express statement in a pleading or on the record, a signed document requesting an investigation filed with the office, or a finding by the court that a party requested an investigation.

3. Amounts Charged

d. An office cannot charge the parties if the court waives or suspends fees in that case because of inability to pay or indigence. The office must reduce the amount charged on a case and to a party if the court waives or suspends any portion of a party’s fees because of inability to pay or indigence. If the court partially waives or suspends fees in a case, unless otherwise ordered by the court the office must reduce its charges.

e. The court may direct an office to charge reduced amounts based on a party’s limited ability to pay.

f. Unless permitted by statute or court rule, the court may not charge or collect any other fee or amount for the office conducting an investigation.

5. Completing Investigations

Once ordered to conduct an investigation, unless a subsequent order terminates it, the office must timely complete its work and submit a report to the court and parties, regardless of whether a party pays the amount charged.

As with any concern about office operations, any party with a complaint regarding a office’s practices or procedures for charging for its investigation expenses may file a grievance pursuant to MCL 522.526.

Uniform Child and Spousal Support Orders (Revised)

2010-10-08T11:46:00.000-07:00

MCR 3.211(D) requires that child support and spousal support orders be prepared on the Uniform Support Order (USO) approved by the Michigan Supreme Court. On September 22, 2010, the Court adopted the USO revisions that were suggested by the State Court Administrative Office (SCAO). The Court approved the new forms (dated 5/10) for immediate use, and authorized the continued use of the previous version of each form until December 31, 2010. Beginning January 1, 2011, courts should only accept support orders prepared on the latest forms (dated 5/10).

SCAO-approved domestic relations forms are available on the Michigan Courts website at http://courts.michigan.gov/scao/courtforms/domesticrelations/drindex.htm.

Personal Protection Orders.

2010-10-07T10:03:00.001-07:00

My $.02:

In general terms, Personal Protection Orders by statute are for cases involving domestic violence or stalking. However, sometimes what would not necessarily appear to be included within that definition still can be the basis for a PPO because of the relevant facts and circumstances between the parties.

If an ex-parte Personal Protection Order is granted, the respondent has the right to file a Motion to terminate the PPO within 14 days after being served with (or receiving actual notice of) the PPO. (A motion filed by the respondent after the required 14 days may require the respondent to show good cause for the late filing of the motion.) At the hearing on the respondent’s Motion to terminate the PPO the petitioner has the burden of proof to show through legally admissible, substantive evidence that the PPO was issued correctly and remains necessary today.

If your petition for any ex parte Personal Protection Order is denied, it may be because, in fairness to both sides, both parties should be present and have the opportunity to present evidence to the judge as to whether a PPO is appropriate. It is not necessarily that there is insufficient evidence for the Personal Protection Order, but the ex parte denial may simply be that the court is not satisfied upon review of the petition that petitioner will suffer immediate and irreparable injury, loss or damage by having to wait for a hearing whereby both parties (and witnesses) can be present.

If you wish to present evidence at any hearing, witnesses are generally required. Please remember that hearsay is generally inadmissible, except for admissions made by the opposing party or otherwise as allowed by the Rules of Evidence. This includes what other people may have told you whether that other person be a police officer, lawyer, family member, friend or stranger. Likewise, police reports, letters, medical reports and affidavits are hearsay and generally not admissible unless you can lay a proper foundation under the Rules of Evidence.

At the hearing please do not interrupt when someone else is talking. The judge will try to give both sides a full opportunity to be heard before making any decision. Do not argue with the other party. You are there to convince the judge, not the other party, that your position is correct.

When you don’t follow these rules it can affect your credibility. We know and understand that people are nervous when they appear in court, but even if you are nervous or upset, you can still be polite, civil or courteous to the other party, witnesses and the court.

Use of Medical Marijuana

2010-09-28T13:57:00.000-07:00

My $.02:

Medical marijuana by law and by affirmation in the Court of Appeals is allowable if prescribed by a licensed physician during the course of a bona fide physician-patient relationship for treatment of a serious or debilitating medical condition. Accordingly, if a person placed on probation wishes to use medical marijuana for treatment of a serious or debilitating medical condition, my intention is to use the following guidelines:

1. Are there other reasonable alternatives to medical marijuana? Unless the answer is clearly yes or no, defendant shall obtain, at defendant's expense, an evaluation, by a person approved by the probation department, whether medical marijuana is reasonably necessary for treatment of a serious or debilitating medical condition.

2. If medical marijuana is reasonably necessary, defendant may use marijuana prescribed by a licensed physician during the course of a bona fide physician-patient relationship for treatment of a serious or debilitating medical condition. Defendant shall not otherwise use or possess, or be in the presence of any person using or possessing, any controlled substance or imitation thereof. All prescriptions otherwise must be non-narcotic and prescribed by a licensed physician during the course of a bona fide physician-patient relationship.

3. Unless smoking medical marijuana is reasonably necessary to treat nausea and approved in writing by the court, the smoking of marijuana is prohibited and ingestion of medical marijuana shall be in oral tablet form.

4. Defendant shall not use or possess marijuana in the presence of any person using a controlled substance. (This precludes the sometimes practice of people using or possessing marijuana at the so called 'marijuana clubs'.)

5. Defendant shall not operate a motor vehicle.

A jury panel of 12 or 6?

2010-09-22T11:59:00.000-07:00

My $.02:

Six person criminal jury trial: The United States Supreme Court in Williams v Florida, 399 U.S. 78, 90 S Ct 1893, 26 L.Ed.2d 446 (1970) held that the constitutional guarantee of a trial by jury does not necessarily require a trial by exactly 12 persons. The State of Florida’s refusal to impanel more than the six members provided for by Florida law did not violate defendant's Sixth Amendment rights as applied to the States through the Fourteenth Amendment. Contrarily, the ABA advocates 12 member juries in all non-petty criminal cases and in all civil cases whenever feasible. According to the ABA Principles for Juries and Jury Trials, larger juries deliberate longer, and have better recall of trial testimony, and are more likely to produce accurate results.

Is there some intrinsic value in a decision making body of twelve versus six? As long as arbitrary exclusions of a particular class from the jury rolls are forbidden, the concern that the cross-section will be significantly diminished if the jury is decreased in size from twelve to six seems an unrealistic one. A six person criminal jury trial with (or without) the further adoption by court rule and statute of reduced peremptory challenges would preserve the right to a jury trial of one’s peers. This author, acting as a district, probate and circuit judge, has seen no difference and found no persuasive authority that a verdict rendered in a six person probate, misdemeanor or civil matter has any less validity than that rendered by a twelve person jury panel. This author would also argue that minority representation, as a meaningful voice, carries less weight on the greater panel than does like service on the lesser panel.

The prescription and use of medical marijuana.

2010-09-20T10:21:00.000-07:00

In People v Redden, ___ Mich App ___ (#295809, 9/14/2010) the Court of Appeals discussed two areas of concern in medical marijuana cases. Whether the patient (defendant) was prescribed the medical marijuana during the course of a bona fide physician-patient relationship and whether the defendant has a serious or debilitating medical condition.

MCL 333.26428(a)(1) states that a medical-purpose defense shall be presumed valid if: A physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition . . . .

The MMMA does not define the phrase “bona fide physician-patient relationship.” When words or phrases are not defined in a statute, a dictionary may be consulted. People v Peals, 476 Mich 636, 641 (2006). Random House Webster’s College Dictionary (1997) defines “bona fide” as “1. made, done, etc., in good faith; without deception or fraud. 2. authentic; genuine; real.”

Section § 7(b)(5) states that the MMMA “shall not permit any person to . . . [u]se marihuana if that person does not have a serious or debilitating medical condition.” MCL 333.26427(b)(5). Section 3, the definitions section of the MMMA, states: (a) “Debilitating medical condition” means 1 or more of the following: (1) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, nail patella, or the treatment of these conditions. (2) A chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following: cachexia or wasting syndrome; severe and chronic pain; severe nausea; seizures, including but not limited to those characteristic of epilepsy; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis. (3) Any other medical condition or its treatment approved by the department, as provided for in section 5(a). [MCL 333.26423.]

Section 3 does not define the phrase “serious medical condition.” MCL 333.26423. With regard to the phrase “serious medical condition,” Random House Webster’s College Dictionary (1997) defines “serious,” in this context, as “weighty, important, or significant” and “giving cause for apprehension; critical or threatening[.]” Without knowing the nature of defendants’ medical conditions, it is not possible to determine whether they are “serious.” With regard to the phrase “debilitating medical condition,” MCL 333.26423(a)(2) indicates that this phrase includes “[a] chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following: . . . severe and chronic pain; severe nausea . . . .”

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Both issues center on the underlying concern that persons not be allowed to abuse the allowed use of medical marijuana for a non-serious or debilitating medical condition and that the use of medical marijuana be legitimately prescribed during the course of a legitimate patient-physician relationship.

Imposition of a fine when not allowed by the relevant statute.

2010-09-14T11:35:00.000-07:00

My $.02:

In Michigan the allowable incarceration and fine to be imposed for a criminal offense is derived from the corresponding statute setting forth the offense and the possible penalty. People v Neil, 99 Mich App 677 (1980). Depending on the particular statute, certain criminal statutes provide for incarceration but do not set forth an allowable fine. Other statutes allow for the imposition of a fine or incarceration, and other offenses allow for the imposition of a fine and incarceration.

Under our rules of statutory construction, unambiguous statutes are to be enforced as written. People v Holder, 483 Mich 168 (2009). Accordingly, it would seem that if a criminal statute does not allow for the imposition of a fine, the same is not authorized as a lawful penalty at sentencing. See MCL 769.24: “Whenever, in any criminal case, the defendant shall be adjudged guilty and a punishment by fine or imprisonment shall be imposed in excess of that allowed by law, the judgment shall not . . . be wholly reversed . . ., but the same shall be valid and effectual to the extent of the lawful penalty . . ..”

Padilla Risk of Deportation--Ineffective assistance of counsel

2010-09-10T17:47:00.000-07:00

At our Criminal Jurisprudence & Practice Committee meeting today there was considerable discussion about the proposed court rules regarding effective assistance of counsel when there is a risk of deportation associated with one's plea of guilty or no contest.

At our meeting prosecutors and defense counsel seem to be in agreement that under Padilla v Kentucky, ___ US ___; 130 S Ct 1473 (2010), defense counsel is required, at a minimum, to inform a defendant that if (s)he is not a citizen of the United States, their plea of guilty or no contest may result deportation. (If it is clear that the plea of guilty or no contest will result in deportation, Padilla requires that the client be given correct advice; it is, however, not always clear what convictions will result in deportation.)

Because one's status as a United States citizen is not determined by their appearance, defense counsel needs to discuss this risk of non-citizen deportation with each and every client. i.e. a non-citizen may include someone from the Middle East, South America, Canada, Europe or otherwise.

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Accordingly, until otherwise directed by the Supreme Court, it is my intention to begin asking the following questions at any plea of guilty or no contest:

1. Do you understand that if you are not a legal citizen of the United States that your plea of guilty or no contest may result in deportation?

2. Have you discussed this with your attorney?

If this discussion has not taken place, a recess or adjournment will be offered to the defense to allow further discussion or consideration of this issue.

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If you are planning on attending the SBM annual meeting in Grand Rapids, consider attending the panel discussion put on by the Criminal Issues Initiative relating to the appropriate remedies for Padilla violations at the state and federal levels on Thursday, September 30, 2010 from 2:00-4:00 p.m. I have been asked to be the moderator for the panel discussion; Frank Eaman will be speaking on federal issues; Noel Saleh will be the immigration expert, and a third tbd person will speak to state procedures.

FHA SHORT-REFI PROGRAM for mortgages under water

2010-09-10T09:32:00.000-07:00

Beginning September 7th, FHA has a new program for some underwater borrowers. As many as 20 million homeowners may be underwater. FHA and the government fear these homeowners are at much greater risk of foreclosure whether it be a strategic or a traditional foreclosure.

Here are the new program qualifications:

1. Homeowner must be in a negative equity position;
2. Homeowner must be current on the existing mortgage to be refinanced;
3. The homeowner must occupy the subject property (1-4 units) as their primary residence;
4. The homeowner must qualify for the new loan under standard FHA underwriting requirements & possess a "FICO based" decision credit score greater than or equal to 500;
5. Existing loan to be refinanced must not be a FHA-insured loan;
6. Existing first lien holder must write off at least 10 percent of the unpaid principal balance
7. The refinanced FHA-insured first mortgage must have a loan-to-value ratio of no more than 97.75 percent;
8. Non-extinguished existing subordinate mortgages must be re-subordinated and the new loan may not have a combined loan-to-value ratio greater than 115 percent;
9. For loans that receive a "refer" risk classification from TOTAL Mortgage Scorecard (TOTAL) and/or are manually underwritten, the homeowner's total monthly mortgage payment, including the first and any subordinate mortgage(s), cannot be greater than 31 percent of gross monthly income and total debt, including all recurring debts, cannot be greater than 50 percent of gross monthly income;
10. FHA mortgagees are not permitted to use premium pricing to pay off existing debt obligations to qualify the borrower for the new loan;
11. FHA mortgagees are not permitted to make mortgage payments on behalf of the borrowers or otherwise bring the existing loan current to make it eligible for FHA insurance; and
12. Existing loan to be refinanced may not have been brought current by the existing first lien holder, except through an acceptable permanent loan modification as described below.

see also...

http://portal.hud.gov/portal/page/portal/HUD/press/press_releases_media_advisories/2010/HUDNo.10-173

http://blogs.wsj.com/developments/2010/09/06/the-fhas-short-refinance-program-frequently-asked-questions/

http://www.rwbpress.com/2010/09/10/federal-housing-administration-short-refinance-program-fha-underwater-refinancing-plan-may-prevent-foreclosure/

Change in Domicile

2010-09-10T08:38:00.000-07:00

Davenport v Mosholder, Unpub, (#295852, 9/9/2010)

Defendant appealed the circuit court order granting plaintiff’s motion to change the domicile of the parties’ minor child from Michigan to Georgia. The judgment of divorce in 2006 provided that the parties would share joint legal and joint physical custody of their child. In 2009 the mother filed a petition to change domicile to Georgia. The mother planned to remarry in February 2010, and her fiancé resided in Georgia. The father opposed the child’s move.

On appeal the father asserts that the circuit court erred by declining to consider whether clear and convincing evidence established that the move to Georgia served the child’s best interests, as required by MCL 722.23. The circuit court found that an established custodial environment existed with both parents, with the mother having “primary physical custody” during the school year. However, the circuit court ruled that the proposed move to Georgia would not alter the child’s established custodial environment because the father will have the opportunity to exercise 138 overnights with the child, which is nearly the same amount he currently enjoys. . . . The child will have open access to both parents and both parents have open access to him. This provides him with continued security and stability even though the custodial schedule and his legal residence and domicile have changed.

The Court of Appeals reversed. A custodial environment “is established 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). “Where there is a joint established custodial environment, neither parent’s custody may be disrupted absent clear and convincing evidence.” Sinicropi v Mazurek, 273 Mich App 149, 178 (2006). If a proposed relocation “would result in a change in parenting time so great as to necessarily change the established custodial environment,” the court must conduct an inquiry into the best interest factors set forth in MCL 722.23. In ascertaining whether a proposed change modifies an established custodial environment, “it is the child’s standpoint, rather than that of the parents, that is controlling.” Pierron v Pierron, 486 Mich 81, 92 (2010).

The circuit court’s finding that the move to Georgia would occasion no change in the child’s established custodial environment contravenes the great weight of the evidence. The record supports that the father enjoyed almost daily contact with his son, attended and helped coach his flag football practices, and served as the child’s scout den leader. The child and father regularly read together, played catch and golf, and worked on science projects. Viewed from the child’s standpoint, a move to Georgia would disrupt the child’s ready access to his father and impair the child’s ability to receive guidance, structure, and comfort from his father. We reject the notion that contact through a webcam, even if maintained daily, may effectively substitute for the established custodial environment present in this case.

Michigan Supreme Court holds that evidence that a child was present in a home in which defendant was in possession of drugs and firearms is, by itself, legally insufficient to support defendant’s conviction under MCL 750.145 for doing an act that tended to cause a minor child to become neglected or delinquent.

2010-09-09T09:01:00.000-07:00

People v Tennyson, ___ Mich ___ ( #137755, 9/7/2010)

In Tennyson, supra, the Michigan Supreme Court granted leave to appeal to consider whether evidence that a child was present in a home in which defendant was in possession of drugs and firearms is, by itself, legally sufficient to support defendant’s conviction under MCL 750.145 for doing an act that “tended to cause a minor child to become neglected or delinquent so as to tend to come under the jurisdiction of” the family division of the circuit court.

The Supreme Court held that where there is no evidence that the child was aware of such drugs or firearms that there is insufficient evidence to support defendant’s conviction under this statute. To decide otherwise would render a conviction under MCL 750.145 an increasingly routine appendage to a broad array of other criminal charges in instances in which a child is merely present in a home where evidence of a crime has been uncovered. Moreover, to decide otherwise would have considerable implications for the process by which parental rights are terminated in this state, for, as the facts of this case demonstrate, a conviction under MCL 750.145 would almost certainly constitute a trigger at least for the initiation of the termination process by the Department of Human Services. Because this result has never before been reached by courts of this state, and because we believe that such result was never intended by the Legislature, we reverse in part the judgment of the Court of Appeals, vacate defendant’s conviction under MCL 750.145, and remand to the trial court for proceedings consistent with this opinion. Defendant’s drug and firearms convictions, which the Court of Appeals has affirmed, are not affected by this decision.

A defendant is entitled to resentencing if his sentence is based on inaccurate information.

2010-09-09T08:46:00.000-07:00

People v Jackson, ___ Mich ___ (#138988, 7/7/2010)

In Jackson, supra the Michigan Supreme Court held that a defendant is entitled to resentencing for an armed-robbery conviction when the Court of Appeals vacated his concurrent convictions for felonious assault that were used as a factor in calculating his sentence for armed robbery. Under the Michigan Court Rules, Court of Appeals’ remands for resentencing are governed by MCL 769.34(10) which requires that cases be remanded when the sentence is based on inaccurate information. We therefore conclude that defendant is entitled to resentencing because his sentence is now based on inaccurate information.

Eligibility for Medicaid long-term care benefits in Michigan--divesture.

2010-09-09T08:35:00.000-07:00

Mackey v Dep’t of Social Servs, ___ Mich App ___ (#288966, 9/7/2010)

To be eligible for Medicaid long-term care benefits in Michigan, an individual must meet a number of criteria, including having $2,000 or less in countable assets. Ronney v Dep’t of Social Servs, 210 Mich App 312, 315 (1995). A Medicaid applicant eligible for long-term care benefits is subject to a divestment penalty if she transfers a resource during the five-year “look-back” period for less than fair market value and that resource is not otherwise excluded as a divestment. 42 USC 1396p(c)(1).

Less than fair market value means the compensation received in return for a resource was worth less than the fair market value of the resource” and elaborates that compensation must have “tangible form” and “intrinsic value.” i.e. the amount of money that a ready, willing, and able buyer would pay for the asset on the open market . . . . Wolfe-Haddad Estate v Oakland Co, 272 Mich App 323, 325-326 (2006) (emphasis added).

In this case petitioner invested a sizeable sum in the Marden Family L.L.C., created solely for the purpose of circumventing Medicaid eligibility requirements and which ceded total control to petitioner’s daughter (and fiduciary) for a fraction of the cost of petitioner’s investment. Under the terms of the agreement, petitioner would only receive a marginal return on her unsecured investment after two years. A willing buyer could not acquire such an asset on the open market, in an arm’s-length transaction. Therefore, the transaction was for less than fair market value and constituted a divestment of assets not subject to an exclusion.

The risk of deportation as a potential consequence of a guilty plea.

2010-09-07T13:34:00.000-07:00

In Padilla v Kentucky, ___ US ___; 130 S Ct 1473 (2010) the United States Supreme Court held that defense counsel is required to inform a defendant about the risk of deportation as a potential consequence of a guilty plea when the risk of deportation is clear. The Supreme Court also noted that in “situations in which the deportation consequences of a particular plea are unclear or uncertain, … a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”

The Michigan Supreme Court is considering the adoption of a specific Court Rule to implement this decision. Proposal A would require a judge to ask a noncitizen defendant and the defendant’s lawyer if they have discussed possible risk of deportation as a consequence of a guilty plea. The focus of this inquiry is whether the defendant is a noncitizen, and what the defense counsel has told the defendant. Proposal B would require a judge to give general advice to any defendant (whether or not the defendant is represented by counsel) that a guilty plea by a noncitizen may carry immigration consequences. This alternative would obviate the need to determine the defendant’s citizenship status, which the defendant may not know or be willing to divulge.

On September 10, 2010 the State Bar Criminal Jurisprudence & Practice Committee will discuss the U.S. Supreme Court decision and the proposed Michigan Court Rule alternatives. CJ&P reviews proposed court rules and statutes related to criminal procedure and practice in state courts and makes recommendations concerning improvements in the operation of criminal law and procedure to promote the fair, speedy and efficient administration of criminal justice. As co-chair of this committee, I would be interested in your comments or suggestions. You can email me at dhoort@ioniacounty.org.

Non-Profit Organization IRS filing requirement

2010-09-01T13:45:00.000-07:00

In the past, 501(c)(3) organizations earning less than $25,000 a year were not required to file with the Internal Revenue Service. That changed in 2006 and small organizations that have not filed for the past three years are in danger of losing their tax-exempt status.

The Pension Protection Act of 2006 requires the IRS to revoke the federal tax exemption of any non-profit organization required to file an annual return that has failed to do so for three consecutive years. Nonprofits that wish to have their exemptions reinstated will be required to reapply to the IRS for tax-exempt status, a process that can take several months and requires a user fee of $400 or $850. The IRS will start issuing the revocation notices in 2011.

The Internal Revenue Service is providing a one-time relief program for small nonprofits and extending the deadline for filing the 990N or 990E-Z (also called the e-postcard) until October 15, 2010. The failure to do so will affect not only the organizations that lose their exemptions but also the donors and funders that support the organizations and the people that rely on their services.

Follow these step by step instructions to see if your organization is on the list:
1. Go to: http://www.irs.gov/charities/article/0,,id=225889,00.html
2. Scroll down the page until you see the list of states
3. Go to Michigan and Click on the PDF (the Excel spreadsheet is quite large and will take up a lot of space on your computer)
4. Search for your organization alphabetically (by your legal name)
5. Contact the IRS directly if you have questions or need information about filing at 1-877-829-5500

My suggestion for preliminary examination reform.

2010-09-01T08:40:00.000-07:00

My suggestion for preliminary examination reform in criminal cases, to minimize the time and expense to litigants, witnesses, attorneys and court, but preserve a defendant's right to this sometimes necessary check and balance.

The purpose of a preliminary examination is whether there exist probable cause to believe both that an offense not cognizable by the district court has been committed and that the defendant committed it.

My suggestion:

As per existing criminal procedure, a defendant would still be arraigned by the district court judge/magistrate on the felony complaint, with bond set and counsel, if necessary, appointed. However, instead of the case being set on for a preliminary examination in district court, the case would go to the circuit court for a circuit court arraignment with the assigned circuit judge. The right to a preliminary examination would be preserved, but in circuit court, by the filing of a sworn affidavit challenging the probable cause to believe an offense not cognizable by the district court has been committed and that defendant committed it.

Because a preliminary examination is sometimes legitimately used as a means of trial strategy, with this change the rules of discovery would be expanded to require witnesses to speak with an attorney (or his/her designee). At the witness’ request, the interview would be taped in its entirety. As is done in civil cases, one could also allow for depositions if necessary to preserve testimony for use at trial under MRE 804.

Newly available evidence versus newly discovered evidence

2010-08-30T10:14:00.000-07:00

In People v Terrell, __ Mich App __ (#286834, 8/26/2010) the Court of Appeals held that when a defendant knew or should have known that his codefendant could provide exculpatory testimony; the codefendant asserting his/her privilege against self-incrimination does equal newly discovered evidence but is instead merely newly available evidence.

A new trial based on newly discovered evidence is warranted where the defendant satisfies the following four part test: “(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.” People v Cress, 468 Mich 678, 691, 692 (2003). Quoting People v Johnson, 451 Mich 115, 118 n 6 (1996).

If a codefendant invokes his privilege against self incrimination and refuses to testify, a defendant can be denied the benefit of any potentially exculpatory testimony the codefendant might have provided. See Owen, 500 F3d at 91. In such case, the trial court could grant a severance if it is persuaded that the deprivation causes the defendant prejudice. Id. The prosecutor could confer limited immunity on the codefendant so he may testify truthfully and that, as a last resort, a defendant could take the stand and convey his story. Id. at 92. Under MCR 6.121(C) a defendant is entitled to severance if he makes a “showing that severance is necessary to avoid prejudice to substantial rights of the defendant.”

Although newly available evidence does not constitute newly discovered evidence sufficient to warrant a new trial, this does not preclude the possibility that a codefendant’s post-trial or post-conviction exculpatory statements may ever qualify as newly discovered evidence under MCR 6.431(B). There may be cases where such evidence does indeed constitute newly discovered evidence. However, in this case, defendant knew or should have known that his codefendant could offer material testimony regarding defendant’s role in the charged crime; therefore, defendant cannot claim that he “discovered” that evidence only after trial.

Serious impairment of body function in no fault automobile accident cases.

2010-08-26T15:43:00.000-07:00

On July 31, 2010 the Michigan Supreme Court in McCormick v Carrier overturned the existing case law interpretation found in Kreiner v Fischer, 471 Mich 109 (2004) of a serious impairment of body function for no fault automobile accident cases. Under MCL 500.3135, there is tort liability for non-economic loss arising out of the ownership, maintenance, or use of a qualifying motor vehicle “for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.”

In my first jury trial since this decision, I used the following jury instruction today (based on McCormick) to explain a Serious impairment of body function:

Serious impairment of body function is a (1) an objectively manifested impairment (observable or perceivable from actual symptoms or conditions) (2) of an important body function (a body function of value, significance, or consequence to the injured person) that (3) affects the person’s general ability to lead his or her normal life (influences some of the plaintiff’s capacity to live in his or her normal manner of living).

Under the first prong, it must be established that the injured person has suffered an objectively manifested impairment of body function. As such the focus is not on the injury itself, but how the injury affected a particular body function. An objectively manifested impairment is an impairment that is evidenced by actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function. In other words, an “objectively manifested” impairment is commonly understood as one observable or perceivable from actual symptoms or conditions.

If there is an objectively manifested impairment of body function, the next question is whether the impaired body function is “important.” The relevant definition of the adjective “important” is ‘marked by or having great value, significance, or consequence’. Whether a body function has great “value,” “significance,” or “consequence” will vary depending on the person. Therefore, this prong is an inherently subjective inquiry that must be decided on a case-by-case basis, because what may seem to be a trivial body function for most people may be subjectively important to some, depending on the relationship of that function to the person’s life. Likewise, if as to that person, the impairment is of an unimportant body function, the person has not suffered an impairment of an important body function. What is important to one is not important to all; a brief impairment may be devastating whereas a near permanent impairment may have little effect.

Finally, if the injured person has suffered an objectively manifested impairment of body function, and that body function is important to that person, then you must determine whether the impairment “affects the person’s general ability to lead his or her normal life.” To “affect” the person’s “general ability” to lead his or her normal life is to influence some of the person’s power or skill, i.e., the person’s capacity, to lead a normal life. In that regards, “to lead his or her normal life” is to have an influence on some of the person’s capacity to live in his or her normal manner of living. This requires a subjective, person and fact specific inquiry that must be decided on a case-by-case basis. Accordingly, this determining the effect or influence that the impairment has had on a plaintiff’s ability to lead a normal life necessarily requires a comparison of the plaintiff’s life before and after the incident.

In that regards the law merely requires that a person’s general ability to lead his or her normal life has been affected, not necessarily destroyed. Thus, the consideration is not only whether the impairment has led the person to completely cease a pre-incident activity or lifestyle element, but also whether, although a person is able to lead his or her pre-incident normal life, the person’s general ability to do so was nonetheless affected. Second, and relatedly, the law only requires that some of the person’s ability to live in his or her normal manner of living has been affected, not that some of the person’s normal manner of living has been affected. While the extent to which a person’s general ability to live his or her normal life is affected by an impairment is undoubtedly related to what the person’s normal manner of living is, there is no quantitative minimum as to the percentage of a person’s normal manner of living that must be affected. Third, and finally, the law does not create an express temporal requirement as to how long an impairment must last in order to have an effect on “the person’s general ability to live his or her normal life.” An impairment does not have to be permanent in order to be a serious impairment of body function.

If you decide that all three elements have been proved, then plaintiff is entitled to recover damages for non-economic loss for pain and suffering, mental anguish, fright and shock, denial of social pleasure and enjoyments, embarrassment, humiliation or mortification, aggravation of a pre-existing ailment or condition that you determine the plaintiff has sustained as a result of that injury.

My suggestion for the selection of judges.

2010-08-24T09:34:00.000-07:00

It is a given that judicial appointments are too often political and judicial elections are too influenced by money. My suggestion to fill judicial vacancies would be to have the attorneys residing or having an office in the electoral jurisdiction vote under the auspices of the State Bar on the applications for any judicial appointment. Each lawyer and each law office would vote separately for one candidate and the top two candidates from each would move on in the appointment process. These top four candidates would then be submitted to the State Bar for their evaluation and the governor would then appoint the new judge from these four candidates. It's not a perfect answer but this would allow the persons (attorneys) with the most knowledge of the judicial candidates to decide who would be the best judge for the vacancy. The State Bar would do the evaluation for the candidate and governor’s benefit and the governor would be able to decide his/her preference from the four candidates. Allowing for some preference but hopefully ensuring quality candidates.

For elections I would propose a retention vote whereby a judge would remain in office unless the voters by a 2/3rds majority voted for his/her non-retention. This significantly high requirement would discourage the removal of good judges but not eliminate the opportunity to remove bad judges.

The traditional common law affirmative defense of self-defense.

2010-08-23T09:54:00.000-07:00

People v Dupree, ___ Mich ___ #139396, 7/23/2010)

The traditional common law affirmative defense of self-defense may be interposed to a charge of being a felon in possession of a firearm, MCL 750.224f. Once the defendant injects the issue of self-defense and satisfies the initial burden of producing some evidence from which a jury could conclude that the elements necessary to establish a prima facie defense of self-defense exist, the prosecution bears the burden of proof “‘to exclude the possibility that the killing was done in self-defense

At common law, the affirmative defense of self-defense justifies otherwise punishable criminal conduct, usually the killing of another person, “if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.” Generally, [o]ne who is not the aggressor in an encounter is justified in using a reasonable amount of force against his adversary when he reasonably believes (a) that he is in immediate danger of unlawful bodily harm from his adversary and (b) that the use of such force is necessary to avoid this danger. “A finding that a defendant acted in justifiable self-defense necessarily requires a finding that the defendant acted intentionally, but that the circumstances justified his actions.”

Restricted licenses for OWI probationers if they are in an Alcohol Sobriety Court

2010-08-20T06:27:00.000-07:00

The Michigan House and Senate has approved Key Interlock/OWI Court/Restricted License legislation and the related bills are on their way to the Governor for signing. As of January 1, 2011, repeat OWI Offenders in Michigan will be able to have restricted licenses if they are in an Alcohol Sobriety Court and have an interlock device on the vehicle. The idea being to encourage participation in these specialty courts and allow persons committed to sobriety to have some ability to operate a motor vehicle. In Ionia and Montcalm Court, Judge Voet has an alcohol related sobriety court in the 64A District Court and Judge Kreeger has an upcoming drug court in the 8th Circuit Court.

My suggestion, to minimize prison overcrowding and the related costs.

2010-08-18T11:38:00.000-07:00

My suggestion, to minimize prison overcrowding and the related costs, would be to give judges additional authority to individualize a defendant’s sentence.

1. If a conviction involves, or includes by history, assaultive/bodily injury or sexual misconduct, the options of jail, probation, prison, etc continue per existing law.

2. If a conviction is not for delivery or manufacturing a controlled substance; but involves, or includes by history, use of drugs and/or alcohol; all incarceration would be served in jail subject to a 'one year’ limitation. (The court would have available the maximum sentence allowed by law but could only impose up to one year in jail at a time.) For example OWI-3d; the possible maximum sentence is 5 years. With outpatient counseling, inpatient, AA, blood alcohol monitoring a court can change behavior if given sufficient time (probation) and negative reinforcement (jail). The problem now is that we run out of jail time at the county level which leaves prison as the only incarceration alternative. Under my proposal, subject to a 'one year’ jail limit (the most that could be imposed at any one time), the circuit court could impose up to five years of jail over a five year period of probation for a person convicted of OWI-3d. A similar process could be utilized with the presently available rehabilitation and drug testing options for drug offenses. One additional safeguard also could be to increase the allowed period of probation.

3. If a conviction is for delivery or manufacturing a controlled substance or is not otherwise included supra; the court would have the authority to impose jail, probation, prison, etc per existing law. If prison is imposed, the judge would have the authority to impose a determinate (like the Federal system) or indeterminate prison sentence. The determinate prison sentence would still be per the sentencing guidelines, but would be a flat sentence with no parole. Sometimes all that is needed is a flat prison sentence to punish the wrongdoer and act as a deterrent.

I also think we should use the FOC child support collections model in the criminal justice system whereby all monies paid go through the state and are then disbursed to the local governmental unity. It is extremely inefficient for every district and circuit court in every county throughout the state to have their own collection process. And for defendants to set up payment plans for multiple courts in the same county and in other counties throughout the state. I see so many defendants not in compliance going from jail to jail and then repeating the process in one continuous loop. Under this proposal, a defendant would pay x amount per month to the state and the same would then be disbursed to the local government units. Enforcement could be in each court or in the court with the oldest file.

Whether the proposed change would modify the established custodial environment of the child.

2010-08-17T10:36:00.000-07:00

Pierron v Pierron, ___ Mich ___ (#138824, 5/11/2010)

When 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.

If the proposed change would modify the established custodial environment of the child, the burden is on the parent proposing the change to establish, by clear and convincing evidence that the change is in the child's best interests. Under such circumstances, the trial court must consider all the best-interest factors because a case in which the proposed change would modify the custodial environment is essentially a change-of-custody case.

If the proposed change would not modify the established custodial environment of the child, the burden is on the parent proposing the change to establish, by a preponderance of the evidence, that the change is in the child's best interests. Under those circumstances, although the trial court must determine whether each of the best-interest factors applies, if a factor does not apply, the trial court need not address it any further other than stating that the factor is irrelevant.

therapist duty of care to clients in group therapy

2010-08-16T07:12:00.000-07:00

Dawe v Bar-Levav & Assoc, __ Mich App __ (#269147, 8/12/2010)
On remand from the Supreme Court, the Court of Appeals held that a treating professional has a duty to take reasonable precautions to ensure that the patients assigned to her therapy group were healthy enough to participate in group therapy. It is then a question for jury whether the therapist’s decision to place a former patient into group therapy with other clients falls below the general standard of care applicable to medical professionals and whether that decision was the cause of plaintiff's injuries. In this case a former group therapy client came to the office, drew a handgun, shot and killed one of the psychiatrists, and fired into the group therapy room, killing one patient and wounding others. The jury returned a verdict for plaintiff and on appeal the court noted that "a psychiatrist-patient relationship is a 'special relationship' that imposes a duty to protect another from harm by a third party." It can thereby be foreseeable that a patient who was not healthy enough to participate in group therapy might be or become a danger to the other group members.

Prohibition from possessing or purchasing ammunition or a firearm

2010-08-13T06:29:00.000-07:00

Federal and/or state law may prohibit a person from possessing or purchasing ammunition or a firearm (including a rifle, pistol, or revolver if (s)he is subject to a personal protection order or has been convicted of a misdemeanor crime of domestic violence.

Judicial consciousness in a civilized system of jurisprudence.

2010-08-12T06:36:00.000-07:00

“[T]he question of whether sick people are to be treated for their illness or punished for it, is a question which touches the very heart of judicial consciousness of a civilized system of jurisprudence. If, perchance, the parties or counsel fail to raise the matter our courts cannot close their eyes to so important a matter.” People v Griffes, 13 Mich App 299, 306 (1968).

Relief After Violent Encounter-Ionia/Montcalm, Inc groundbreaking

2010-08-11T11:56:00.000-07:00

Relief After Violent Encounter-Ionia/Montcalm, Inc. is proudly stepping out in the community by disclosing their once private location.

RAVE-I/M, Inc. offers free and confidential services to victims of domestic violence and sexual assault. We are part of the community, the victims are part of the community, and we will not be silent.

Join RAVE for a sign groundbreaking ceremony, BBQ, and fun!
When: August 13, 2010; 3:00 pm to 6:00 pm
Where: 850 East Lincoln Ave, Ionia, MI

For more information about the event please visit their website, www.raveim.org or call 616-527-3351.

deposition of a high ranking government or corporate official

2010-08-11T07:50:00.000-07:00

In Alberto v Toyota Motor Corp, _ Mich App _ (#296824, 8/5/2010) the court held that before a party may take the deposition of a high-ranking government or corporate official, the party must demonstrate that the official possesses superior or unique information relevant to the issues being litigated, and the information cannot be obtained by a less intrusive method. http://www.michbar.org/opinions/appeals/2010/080510/46525.pdf

Access to the courts

2010-08-11T07:34:00.000-07:00

The 8th Circuit Court is taking another step into the age of technology. In order to post information and to improve access to the court, Judge David Hoort announces that he will begin posting information relating to the circuit court at http://www.blogger.com/. According to Judge Hoort, although ethical rules prohibit judges from discussing pending or impending proceedings, this will be an opportunity for the court to explain for public information the procedures of the court and inform the public of possible administrative or substantive changes in the law. The thought being that in this day of ever-changing technology and desire for transparency, courts have not only an interest, but arguably a responsibility to make information relating to the court accessible to the public.

When reasonably possible, Judge Hoort’s intention is to provide information about recent appellate decisions, legislation affecting the courts and changes or new court rules relating to court procedures. Hopefully, with a corresponding benefit of accuracy in recognition of information otherwise being disbursed on the internet or via second hand sources. Obviously, this will not always be a regular event or in competition with the ‘rich and famous’ as the in court obligations related to the day to day judicial activities of the court take priority.

Judge Hoort presently is a co-chair for the State Bar of Michigan Criminal Jurisprudence and Practice Committee, and serves on the State Bar’s Judicial Cross Roads Task Force Access to Justice Committee and Michigan Public Defense Work Group, and is a liaison to the SBM Judicial Cross Roads Technology and Criminal Law Section Committees. He is also a member of the Ionia County Leadership Academy, Montcalm County Coordinated Response to Domestic Violence, and a VITA volunteer tax preparer for the Montcalm/Ionia Financial Awareness Alliance.