Michigan Court Research Articles

Harper and Its Aftermath

In Davis v. Michigan Department of Treasury, the Supreme Court ruled that states may not tax the pensions of former federal workers without imposing a like tax on the retirement income of former state employees. Noting that Michigan had agreed to refund the state income taxes Paul Davis had paid on his federal pension over the years in controversy, the Court stated that he was entitled to a refund. It then remanded the case to allow the Michigan courts and state lawmakers to determine how state and federal retirees were to be treated equally in the future-both taxed according to the same schedule or exempted from tax-and to resolve the thousands of refund claims by federal pensioners that had been or might be filed.Davis provoked a whirlwind of activity in state courts and legislatures across the country, because two dozen states taxed state retirement income more lightly than federal pensions, contrary to the Supreme Court's understanding of the doctrine of intergovernmental tax immunity. Davis left no doubt that states must equalize the taxation of federal and state retirees following the issuance of the Court's opinion. But the Court's bare mention of Michigan's concession to refund Davis's taxes failed to answer clearly the question of whether states owed some form of retroactive relief to all similarly situated federal retirees who had paid higher taxes than had state pensioners. Not surprisingly, in view of the number of courts that issued rulings, the enormous sums at stake, and the confusion swirling around the Supreme Court's recent retroactivity rulings, state courts disagreed over whether the Fourteenth Amendment's Due Process Clause mandates a remedy for past wrongs. Many, including Virginia's Supreme Court, concluded that Davis established a requirement of equal treatment solely for the future. Accordingly, they refused to order refunds to federal retirees or to impose a retroactive tax on state pensions to secure equality after the fact.

The Messy History of Michigan’s “Purity Clause”

So it’s worth asking: What does the Purity Clause actually mean? Can contemporary courts properly invoke it to justify restrictions purportedly aimed at controlling “voter fraud”? Should they? Part I diagnoses the problem: Recently, Michigan courts have invoked the Purity Clause to legitimize voting rights restrictions without applying their usual tools of constitutional interpretation or scrutinizing the Clause’s complex history. As a result, voting restrictions have been justified by reference to a badly underexamined constitutional provision. Part II examines the Clause with the tools that Michigan courts use to interpret the state constitution. This Part argues that neither the original public meaning nor the framers’ intent justifies a narrow reading of the Clause as entirely about laws restricting “voter fraud” in the contemporary, politicized sense of the term. In fact, the Clause seems to have been intended to bar voting not by facially unqualified people but by otherwise qualified voters who were ostensibly infected by the “wrong” motives—and it was likely originally understood as a racial restriction. Part III looks at the Clause’s evolution since 1850—in its 1908 and 1963 reenactments and as applied by the courts—and argues that, to the extent the Clause is still relevant, it demands a broader understanding than recent court decisions have allowed. I conclude that the Purity Clause should no longer be applied to counterbalance or outweigh the federal and state constitutions’ guarantee of the right to vote.

Michigan Oil and Gas Update

On March 23, 2020, the Michigan Court of Claims issued its opinion in Mannes v. Michigan Dep’t of Treasury. This case considered the meaning of the phrase “expenses of producing oil and gas” as such expenses relate to “taxable income” under the Michigan Income Tax Act of 1967.

U.S. Supreme Court Amicus Brief of Civil Procedure Professors in Support of Respondents, Ford Motor Co. v. Montana Eighth Judicial District Court, Nos. 19-368 & 19-369

Petitioner Ford Motor Company argues that specific personal jurisdiction “[r]equir[es] that the defendant’s contacts with the forum State have caused the plaintiff’s claims.” This has never been the law, nor should it be. While general jurisdiction may be amenable to narrowly defined categories, specific jurisdiction is not. Ever since this Court’s pathmarking decision in International Shoe Co. v. Washington, specific jurisdiction has been a far more flexible inquiry into the relationship among the forum, the defendant, and the dispute. This is as it should be. Due process does not require that specific jurisdiction rest on a strict causal link between the defendant’s forum-state contacts and the plaintiff’s claims, and inventing such a requirement provides no new benefits, whether in terms of fairness or federalism. It would, however, generate needless inefficiencies, jeopardize states’ well-accepted regulatory interests, and possibly result in claims that cannot be brought in any U.S. state. This Court should decline to adopt Petitioner’s proposal for three reasons. First, this Court has never relied on a causation requirement to endorse — or reject — a state’s exercise of personal jurisdiction over a defendant. In fact, doing so now would be inconsistent with this Court’s most relevant precedent, Bristol-Myers Squibb v. Superior Court of California, which supports finding specific jurisdiction to adjudicate these claims by forum-state residents arising out of an occurrence in the forum state. Second, changing course now by adopting a causation requirement would lead to disruptive and inefficient results in both simple and complex litigation. A causal test would break up single disputes, like that arising out of Adam Bandemer’s car accident, across multiple state courts. It would make it harder for defendants to implead additional parties, for example, if Bandemer had sued the other driver, and he, in turn, wanted to bring in Ford as a third-party defendant. And it could result in no state having jurisdiction over foreign defendants like Honda that extensively market and sell products nationwide, even if the claim arises from an in-state injury. A causation rule would also misallocate jurisdiction across the states. It would prevent states with core regulatory interests — over injuries to state residents occurring within the state and over products sold widely in the state’s market — from adjudicating those claims while forcing such litigation into state courts that have professed little interest in them. Both Delaware and Michigan courts, for example, have dismissed similar cases for forum non conveniens, and both have expressed concern about such general jurisdiction cases clogging their dockets. These problems would follow from any causation rule, but they would be needlessly compounded if the Court adopted Petitioner’s preferred proximate-cause rule. Indeed, it is not clear that under Petitioner’s proximate-cause rule, the plaintiffs could have brought their lawsuits in their home jurisdictions even if the cars involved had been purchased within the state. This Court need not take these risks in order to promote fairness and federalism values. Petitioner has not even argued that Minnesota or Montana is an unfair place to litigate. To the extent that Petitioner’s concern is being haled into an inconvenient or unpredictable forum, those concerns are already addressed by this Court’s requirements that the defendant make purposeful contacts with the forum and that any exercise of personal jurisdiction be reasonable. Third and finally, Petitioner’s call for a supposedly bright-line rule is inconsistent with this Court’s tried and true path of developing the law of specific jurisdiction cautiously on a case-by-case basis. While bright lines might make sense for subject-matter jurisdiction or general jurisdiction, they are a bad fit for the constitutional law of specific jurisdiction. And the supposedly bright-line rule proposed here is even worse, as it undermines the very values of fairness and federalism it purports to protect. Introducing a causation requirement into the specific jurisdiction analysis would not just flout a century of constitutional law — it would draw lines in all the wrong places.

Michigan officials praise new laws to help people with MH issues

Michigan court officials are commending state lawmakers for passing and the governor for signing laws Dec. 28 that should improve mental health care for adults and juveniles, The Macomb Daily reported Dec. 29, 2018. State Court Administrator Milton L. Mack Jr. is pleased with three bills to reform the state mental health code to allow for earlier treatment of individuals who need mental health care services prior to a crisis involving the criminal justice system, state court administrative officials said in a news release. “This legislation is a monumental step forward and makes Michigan a national leader in making it easier to ask for outpatient mental health treatment — before a crisis and before contact with the justice system,” Mack said in the release. Statewide, there are 185 problem‐solving courts that focus on providing treatment and intense supervision to offenders as an alternative to incarceration, including drug, mental health, sobriety and veterans courts. Mack, former chief of Wayne County Probate Court, said the reforms respond to concerns in Michigan and across the nation that jails and prisons have become the primary institutions for people with mental illness. The state has awarded $5.2 million to fund the operation of 31 mental health courts in fiscal year 2019.

The Constitution, the Courts and the Common Law

The Constitution, the Courts and the Common Law

The Michigan Supreme Court, Stare Decisis, and Overruling the Overrulings

The principle of stare decisis dictates that in the absence of a special justification for overruling a prior decision, a court must follow its prior decisions, although a majority of the judges on a court as currently constituted believes that the prior decision was wrongly decided. In this paper, I discuss and analyze the abandonment of stare decisis by the Michigan Supreme Court in the period from 1999 to 2008. During that time, a new Michigan Supreme Court majority, consisting of Justices Taylor, Corrigian, Markman, and Young, expressly overruled by my count thirty-eight cases, some no more than a few years old. While four of these overrulings may be considered non-ideological in the sense that all of the Justices concurred in the decision to overrule, the remaining thirty-four were clearly ideological. In every civil case, the result of the overruling of the prior decision was to favor defendants over plaintiffs by limiting liability or making it more difficult for plaintiffs to assert a claim. In every criminal case, the result of the overruling of the prior decision was to favor the prosecution over the defendant and to uphold a conviction against the defendant’s statutory or constitutional claim. What has happened in Michigan, pure and simple, is that a majority of the Justices on the Michigan Supreme Court overruled prior decisions with which they disagreed, in order to advance the majority’s policy objectives. Because this is so, the legitimacy of the Court’s abandonment of stare decisis during this period may properly be called into question.In the 2008 election, Chief Justice Taylor was defeated for reelection by Wayne Circuit Judge Diane Hathaway. This brought an end to the Court majority that had abandoned stare decisis and that had engaged in an unprecedented overruling of the Court’s prior decisions. I maintain that a new Court majority should restore stare decisis to Michigan jurisprudence and in a principled way should confront the consequences of the former Court majority’s abandonment of stare decisis. First, the Court should insist on a special justification for overruling a prior decision, and should not overrule the decision simply because a majority of the Justices now serving on the Court believes that the prior decision was wrongly decided. Second, because the ideologically-based overruling decisions lack legitimacy, these decisions, as far as the Court itself is concerned, should stand on no stronger footing than the decisions that they overruled. This being so, the Court may properly decide to grant leave to appeal from a decision of the Michigan Court of Appeals that applied as controlling precedent a decision of the Michigan Supreme Court that overruled a prior decision of that Court. Upon granting leave, the Court would reconsider the overruling decision and decide whether the overruling decision or the overruled decision should be followed. The Court could also make the policy determination to add expressly as a ground for granting a motion for leave to appeal, that the Court should reconsider an overruled decision and decide whether to follow the overruling decision or the overruled decision. It is important that the Court reconsider at least some of the large number of overruling decisions of the former Court majority, as it tries to return stare decisis to Michigan jurisprudence.

Private rights, public interests and water use conflicts: evolving water law and policy in Michigan

Water conflicts are rare across Michigan's history. As a result, water rights have received little attention by courts or the legislature. Traditionally, the common law of water rights in Michigan embraces the riparian doctrine for surface water and provides landowners with the right to use groundwater. However, two recent changes in common and statutory law significantly modify the legal relations among water users and others with a stake in water use decisions. A 2005 Michigan Court of Appeals decision created a new legal relation among riparian and groundwater rights holders. In 2008, Michigan's legislature passed laws aimed at regulating surface water and groundwater withdrawals. As an exercise of police power intended to protect public rights in water and associated environmental quality, the 2008 laws cap total water withdrawals. This program of restricting water withdrawals coexists with the state's common law which provides for reasonable use of surface water by riparian landowners and groundwater by owners of the overlying land. The result is a new set of legal relations, an uncertain legal environment, and a growing likelihood of water use conflicts. Because Michigan's body of water law is unique, neither courts nor legislature can rely on solutions used in other states.

Obtaining a controlled substance with false identification

It has become common practice in pharmacy to require identification from patients who are prescribed controlled substances. Pharmacies take this step to reduce the incidence of controlled substance diversion. To avoid accurate personal identification, a drug diverter may attempt to use a counterfe it identification document or may "borrow" identification from a friend or relative. Using false identification to obtaina controlled substance is a crime in most jurisdictions. A recent case from the Michigan Court of Appeals affirmed a patient's conviction for obtaining a controlled substance under a false name.

Did the Michigan Supreme Court Appreciate the Implications of Adopting the “Disparity of the Risk” Measure of Minority Representation in Jury Pools in People v. Bryant?

Due to an error in the computer program used by Kent County, Michigan, for about 15 months, the African-American proportion of jury pools was about one-half their proportion of the eligible population. Subsequently, a number of defendants appealed their convictions because the jury pool did not fairly represent the community. Although a Federal Court of Appeals found that the statistical evidence helped the defendant establish that African-Americans were under-represented; in a different case, People v. Bryant, the Michigan Supreme Court found the statistics insufficient. The different conclusions arose because the Michigan Court adopted a new criterion that the “disparity of the risk” measure should be at least 0.50. The statistical properties of the measure will be described and it will be seen that it is equivalent to requiring that the Kolmogorov–Smirnov distance between the two relevant distributions is at least 0.50. If one is comparing two normal distributions, with different means and the same variance, the requirement implies that the effect size would need to be at least 1.35 before one could conclude that they differed. Since effect sizes of 0.8 are considered “large,” the criteria used by the Michigan Court are far too stringent and if adopted nation-wide would allow individuals to have trials in front of juries where minorities are substantially under-represented.

Disentangling Mich. Ct. R. 6.502(G)(2): The 'New Evidence' Exception to the Ban on Successive Motions for Relief from Judgment Does Not Contain a Discoverability Requirement

Michigan courts are engaging in a costly interpretative mistake. Confused by the relationship between two distinct legal doctrines, Michigan courts are conflating laws in a manner that precludes convicted defendants from raising their constitutional claims in postconviction proceedings. In Michigan, a convicted defendant who wishes to collaterally attack her conviction must file a 6.500 motion. The Michigan Court Rules generally prohibit “second or subsequent” motions. Nonetheless, section 6.502(G)(2) permits a petitioner to avoid this successive motion ban if her claim relies on “new evidence that was not discovered” before her original postconviction motion. Misguided by the similarity between the language of section 6.502(G)(2) and the Michigan Supreme Court's opinion in People v. Cress, Michigan courts have started conflating the four-prong Cress legal standard with section 6.502(G)(2)'s “new evidence” exception to the ban on successive motions. This conflation imposes an additional discoverability element on the “new evidence” exception: a court will dismiss a petitioner's motion as successive if the petitioner could have discovered the evidence underlying the motion through the exercise of reasonable diligence. This Note demonstrates that the conflation of section 6.502(G)(2) and the Cress standard, and the resulting imposition of an additional discoverability requirement on the “new evidence” exception, is plainly wrong. It contradicts the text and structure of the Michigan Court Rules and imposes unintended adverse consequences on criminal defendants seeking to vindicate their constitutional rights.

Can I Bring My Gun? A Fifty-State Survey of Firearm Laws Impacting Policies Prohibiting Handguns in Public Libraries

In Capital Area District Library v. Michigan Open Carry, 826 N.W. 2d 736 (2012), the Michigan Court of Appeals concluded that state law preempted the library's weapons policy prohibiting firearms in the library. This survey asks how laws in each state impact similar policies prohibiting handguns in public libraries.

The Constitution Commands It: Legislative Power in a Commission's World

The passage of Michigan’s “right-to-work” legislation sparked a controversy regarding the legislation’s application to the classified civil service. The controversy unearthed a much more fundamental confusion within Michigan’s legal realm: when can the Legislature validly usurp the Civil Service Commission’s authority and regulate the civil service? This Article provides useful insight concerning Michigan’s civil service system and Civil Service Commission – a unique government structure created by constitutional amendment. The Article provides a comprehensive analysis of the Civil Service Commission’s “plenary power,” and, more interestingly, it provides an original evaluation of the Michigan Legislature’s ability to regulate civil service employees. Finally, this Article proposes a novel and sound standard to determine when the Legislature may validly regulate the civil service and applies it to the passage of the “right-to-work” legislation.This Article also discusses the Michigan Court of Appeals decision in UAW v. Green made on January 29, 2014.

2015 Update: Can I Bring My Gun? A Fifty State Survey of Firearm Laws Impacting Policies Prohibiting Handguns in Public Libraries

In Capital Area District Library v. Michigan Open Carry, 826 N.W. 2d 736 (2012), the Michigan Court of Appeals concluded that state law preempted the library’s weapons policy prohibiting firearms in the library. While the library community awaits the appeal the question is, how would other states treat a similar issue? The purpose of this paper is to determine how preemption, open and concealed carry laws in each state impact policies prohibiting handguns in public libraries.

Does MERS Have Standing to Foreclose?: Neighborly Advice from Michigan to Illinois

If one purchased real property during the last two decades with a loan from a trusted local bank, there is a good chance that bank is no longer listed in real property records as the legal holder of the loan. In fact, the chances are greater than one in two that a single Delaware corporation purports to be the legal holder of the mortgage securing that loan. As of October 2010, approximately sixty percent of all mortgage contracts in the United States appear in local records as being owned by Mortgage Electronic Registration System, Inc. (“MERS”). In total, this percentage equates to approximately sixty-five million mortgage loans. While the size of these numbers may be astounding, one can still expect the percentage, as well as the absolute number, of American homes registered under MERS’s corporate name to rise.Considering the pervasiveness of MERS in the national real estate market, this Comment examines the legal implications of MERS’ role in the ownership of financial instruments fundamental to loan origination and subsequent loan repayment or foreclosure, and proposes a revised analysis of a leading Illinois case on the subject in light of the persuasive theory of loan notes and mortgage contracts as separate documents expressed by Michigan appellate courts. In order to provide an adequate perspective on the matter, Part I of this Comment gives a brief history of the mortgage recordation process, a description of how MERS operates, as well as a brief explanation of the traditional mortgage recordation and foreclosure practices in Michigan and Illinois. Part II considers two recent Michigan court cases, Residential Funding Co., LLC v. Saurman and Richard v. Schneiderman & Sherman, P.C., that reject MERS’ right to foreclose by advertisement, holding that MERS is the only the legal holder of the mortgage, and thus it has no right to the mortgage indebtedness. Part III will also examine an Illinois case, Mortgage Electronic Registration System, Inc. v. Barnes, in which an appellate court held that MERS did in fact have standing to bring a judicial foreclosure. Then, Part III will discuss why the Michigan cases were decided correctly, and will examine the reasoning in Barnes, providing an analysis in line with the Michigan cases’ theory of MERS’ loan and mortgage contract ownership which would deny MERS standing to foreclose upon a homeowner because it does not have an interest in the indebtedness. Part IV will recommend that, in an expectant future suit, Illinois courts should disallow MERS, Inc. from bringing judicial foreclosure proceedings because it lacks standing to bring such a suit, taking into account legal standing questions, legal formality, and homeowner protection rationales.

Michigan Court Finds Individual Mandate Constitutional

Biotechnology Law ReportVol. 30, No. 4 Financial and Shareholder AffairsMichigan Court Finds Individual Mandate ConstitutionalPublished Online:21 Jul 2011https://doi.org/10.1089/blr.2011.9817AboutSectionsPDF/EPUB ToolsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail FiguresReferencesRelatedDetails Volume 30Issue 4Aug 2011 InformationCopyright 2011, Mary Ann Liebert, Inc.To cite this article:Michigan Court Finds Individual Mandate Constitutional.Biotechnology Law Report.Aug 2011.483-483.http://doi.org/10.1089/blr.2011.9817Published in Volume: 30 Issue 4: July 21, 2011PDF download

Preliminary evaluation of extended-release naltrexone in Michigan and Missouri drug courts

This pilot study, a retrospective case series analysis, examined the feasibility and effectiveness of treating alcohol dependence with extended-release naltrexone (XR-NTX) in the drug court setting. In two Michigan courts and in one Missouri court, 32 clients were treated with XR-NTX and were matched with 32 clients with standard care in an open-label, voluntary recruitment design. Treatment with XR-NTX was associated with relative risk reductions (RRRs; p = ns) of 57% fewer missed drug court sessions, a 35% reduction in the monthly ratio of positive drug and alcohol tests to total tests, and 35% fewer individuals with greater than 25% overall positive alcohol or drug tests. In the principal end-point analysis of annualized number of new arrests, 26% of standard-care clients were rearrested versus 8% on XR-NTX (RRR = 69%; p < .05). Treatment with XR-NTX appeared to be feasible and was associated with a consistently large treatment effect across multiple outcomes relevant to the drug court setting.

Legislative Intent and Legislative History in Michigan

Determining legislative intent is one of the key roles that the judicial system plays in Michigan, and legislative history can be a useful tool for evaluating the intent of the legislature when enacting a law. However, legislative history resources can be difficult to gather, and some resources may not be persuasive in Michigan courts. This article provides a brief description of the Michigan legislative process, the court's view of using legislative history to determine legislative intent, and a list of Michigan legislative history resources.

Michigan Juvenile Delinquency Cases and the Indian Child Welfare Act

The Indian Child Welfare Act (“ICWA”) is best known as a federal law that applies in state court child protection cases involving Indian children. ICWA governs how courts must handle child welfare cases involving “Indian children” and sets out minimum federal requirements. ICWA, however, also applies in juvenile delinquency cases. Th is article will discuss the less well known legal protections for Indian children, their parents, and Native American tribes in juvenile delinquency cases under ICWA and Michigan Court Rules.

The "Enlightened Barbarity" of Inclusive Fitness and Wrongful Death: Biological Justifications for an Investment Theory of Loss in Wycko v. Gnodtke

Wrongful death laws should permit and encourage courts and juries to consider the survivors' investment in decedents when determining wrongful death damages, given new biological justifications for this theory of loss. The investment theory of damages, which permits an award of damages based on the investment of financial resources relatives make in one another, originated in Michigan's courts in the early 1 960s, but as of present day has been largely abrogated. In the context of modern understandings of evolutionary biology, including kin selection theory and sociobiology, the investment theory of recovery accords with the goals of corrective justice as it restores plaintiffs to the resource state they were in prior to making an investment in the decedent and enables plaintiffs to reinvest those same resources in other relatives to recoup lost fitness.