Decisions
Following are summaries of some of the important cases that Judge Whitbeck has authored or in which he has participated. If you would like to read the full text of these (or any other) opinions entered in 2001 and subsequent years, please visit the State of Michigan Court of Appeals website to search the database for these decisions. The easiest way to find the decisions is to use the docket number.
Criminal
People v Asquini, 227 Mich App 702 (1998). A Michigan statute subjects repeat drunk drivers to enhanced punishment. Asquini had two prior guilty plea-based convictions for drunk driving but attacked those convictions on constitutional grounds, asserting that the plea-taking courts had failed to adhere to applicable requirements, including the proper notification of his right to counsel. Judge Whitbeck authored the opinion, holding that Asquini had intelligently waived his right to counsel in the prior two guilty plea-based convictions. The Supreme Court denied leave.
People v Reid, 233 Mich App 457 (1999). A jury convicted Reid of first-degree sexual conduct. Judge Whitbeck authored the opinion that held that Reid, who was "counseling" the 15-year old victim, was in a position of authority over the victim and used this position of authority to coerce the victim into submitting to sexual penetration. He also stated that the prosecutor did not commit misconduct when he requested the trial court to order Reid's wife to undergo a blood test and when he cross-examined her regarding her refusal to take the blood test. The Supreme Court denied leave.
People v Walker, 234 Mich App 299; 593 NW2d 673 (1999). Walker was convicted of burning personal property over $50 in value, and malicious destruction of personal property over $100 in value, and received enhanced sentences as a fourth-offense habitual offender. Judge Whitbeck authored the opinion that affirmed, holding that (1) Walker's convictions did not violate double jeopardy protections, and (2) the prosecutor's failing to file a proof of service of its notice of intent to enhance Walker's sentence as a habitual offender did not violate his right to due process. There was no application for leave.
People v Sabin, 236 Mich App 1 (1999). Sabin was convicted of first-degree criminal sexual conduct involving his minor daughter and was sentenced to life imprisonment. In part, Sabin's conviction was based upon testimony as to "other acts" involving sexual misconduct ten years earlier with the victim's stepsister. On remand, the majority of the panel held that this testimony was inadmissible under MRE 404(b), the rule concerning "other acts" evidence. Judge Whitbeck dissented. He analyzed the facts of the case under the four-pronged test set out in People v VanderVliet, 444 Mich 52 (1993) and concluded that the testimony was admissible. The Supreme Court reversed, adopting in part Judge Whitbeck's reasoning.
People v Snider, 239 Mich App 393 (2000). This matter arose from the brutal, and apparently drug-related, shotgun slayings of two people near the Regency Inn in Detroit. A jury convicted Snider of two counts of first-degree premeditated murder with respect to these shooting deaths as well as of possession of a firearm during the commission of a felony. Snider appealed on a number of grounds, including one of first impression in Michigan: whether, after executing a search warrant and leaving the premises, the police may return to the premises and continue their search. Judge Whitbeck authored the opinion that held that the police officers possessed probable cause at the time of their (third) entry into Snider's hotel room to believe that Snider recently committed a crime and probable cause to believe that Snider was in the hotel room and possessed evidence of that crime. He further stated that there were specific and objective facts indicating that immediate action was necessary to (1) prevent the imminent destruction of evidence, (2) protect the police officers or others, or (3) prevent the escape of a suspect. He concluded that, "We believe, therefore, that there were exigent circumstances, on search and seizure grounds, justifying the third entry into Room 412 (the hotel room) and the ensuing search of the room and seizure of evidence independent of the search warrant." The Supreme Court denied leave.
People v Thenghkam, 240 Mich App 29 (2000). Thenghkam pleaded guilty to second-degree murder and possession of a firearm during the commission of a felony, crimes he committed at the age of sixteen. The trial court originally sentenced him as a juvenile. The prosecutor appealed, and the Court of Appeals reversed and remanded for reconsideration concerning whether Thenghkam should be sentenced as an adult or a juvenile. The trial court, on remand, again sentenced Thenghkam as a juvenile, and the prosecutor again appealed. The Court of Appeals summarized Michigan law relating to the trial of minors as adults as follows:
[A] minor can be: (1) tried and sentenced as a juvenile; (2) tried as an adult and sentenced as a juvenile; or (3) tried and sentenced as an adult. Depending on the offense charged, the automatic waiver statute and the mandatory adult sentencing provision may require this third option. Similarly, if the juvenile was previously under the jurisdiction of the recorder's court or the circuit court, this third option is mandatory. In all remaining circumstances, however, the prosecutor must exercise her or his discretion to request an adult trial or sentence and the court must exercise its discretion, as shaped by the relevant statutory considerations, in deciding whether to try or sentence a minor as a juvenile or adult
Here, the prosecutor requested option three, above, but the trial court ultimately applied option two. Judge Whitbeck authored the opinion that again reversed and remanded for sentencing before a different trial judge. He outlined the appropriate standard of review and noted the prosecutor bears the burden of proving by a preponderance of the evidence that the best interests of the juvenile and the public would be served by sentencing the juvenile as an adult. After reviewing the statutory factors that must be considered, he concluded that, "[T]he trial court, while attempting to make a finding, strayed so far from the relevant subject of the statutory factor that it appeared to become an advocate, seeing the case solely from the perspective of the defense and ignoring countervailing evidence plainly on the record." He further concluded that:
The trial court did not exercise its judgment, but rather appeared determined to defy the directions of this Court by finding new reasons to reach a predetermined result: a juvenile sentence for Thenghkam. . . . This abuse of discretion, alone, would support reversing Thenghkam's sentence and remanding for resentencing.
There was no application for leave.
People v Hudson, 241 Mich App 268 (2000). Hudson was a nurse who was bound over for trial on one count of second-degree vulnerable adult abuse in connection with a slip and fall injury to an elderly patient in a long-term care facility. The trial court denied Hudson's motion to quash the bindover. In a per curiam opinion, the Court of Appeals reversed, holding that under the statute the prosecutor had to introduce evidence at the preliminary examination that established probable cause to believe that (1) Hudson was a caregiver or other person with authority over the vulnerable adult, (2) the victim was a vulnerable adult, (3) Hudson engaged in a reckless act or a reckless failure to act, and (4) that the reckless act or reckless failure to act caused serious physical or mental harm to the vulnerable adult. The Court of Appeals held that there was insufficient evidence to support a finding of probable cause or to show that Hudson's act or failure to act, even if reckless, actually caused the victim to fall and be injured. There was no application for leave.
People v Antkoviak, 242 Mich App 424 (2000). A state trooper arrested Antkoviak, a minor, for violating the minor in possession of alcohol statute, a misdemeanor, but one that did not provide for incarceration as a punishment. The district court ruled that Antkoviak was not entitled to a jury trial. Antkoviak was convicted and appealed to the circuit court, which reversed and ruled that a jury trial was required. Judge Whitbeck authored the opinion that affirmed, holding that the portion of the Michigan Constitution, Const 1963, art 1, § 20, that states that "in every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury" means every criminal prosecution, including those for misdemeanors not involving incarceration. Judge Whitbeck traced the history of the right to jury trial from its English and early-American roots through the Northwest Ordinance to the 1835, 1850, 1908, and 1963 Constitutions and concluded that "[t]o some extent, Michigan may have been a maverick when it came to providing and enforcing the right to a jury trial in misdemeanor cases, but it has done so widely and consistently since our first Constitution." He noted that even though the offense of minor in possession of alcohol is "petty" in the sense that it does not permit incarceration, nevertheless it is a criminal misdemeanor and defendants charged with that offense are, under the clear language of the Constitution, entitled to a jury trial. There was no application for leave.
People v Kevorkian, 248 Mich App 373 (2001) (Docket No. 221758). Judge Whitbeck authored the opinion that upheld Kevorkian's conviction for second-degree murder. The central issue in the case was euthanasia. As Judge Whitbeck put it:
"[E]uthanasia is at the core of this case. But for defendant's self-described zealotry, Thomas Youk's death would, in all probability, not have been the subject of national attention, much less a murder trial. Defendant, in what is now apparently something of an afterthought, asks us to conclude that euthanasia is legal and, therefore, to reverse his conviction on constitutional grounds. We refuse. Such a holding would be the first step down a very steep and very slippery slope. . . . Such a holding would also involve the judiciary in deciding questions that are simply beyond our capacity. Succinctly put, there is no principled basis for us to legalize euthanasia."
The Supreme Court denied leave.
People v Maynor, 256 Mich App 238 (2003) (Docket No. 244435). This case involved an Oakland County defendant whose two children died after she left them in a closed car on a hot summer day. Judge Whitbeck issued a concurrence in which he agreed with circuit court's conclusion that first-degree child abuse was a "general intent," rather than a "specific intent" crime and would have affirmed on that basis. The Supreme Court affirmed the majority opinion, but clarified that "the need to draw the common-law distinction between ‘specific' and ‘general' intent is not required under the plain language of the statute, as long as the jury is instructed that it must find that defendant either knowingly or intentionally caused the harm."
People v Meyers, 250 Mich App 637 (2002) (Docket No. 231817). Meyers pleaded guilty to using the Internet to communicate with a child under the age of 16 years for the purpose of attempting to solicit oral sex. Meyers believed that the child he was chatting with was 12 years old; however, she was really a police detective. The trial court sentenced Meyers to two years probation and ordered that he register as a sexual offender. Meyers appealed, arguing that that he should not be required to register as a sex offender. In a per curiam opinion, the Court of Appeals disagreed, holding that his argument, that it was impossible for him to have completed the substantive offense of accosting a child because the person at the other end of the conversation was not a child, was without merit. According to this Court, under the facts of this case, there was no question that Meyers attempted to accost someone he thought was child. There was no application for leave.
People v Greene, 255 Mich App 426 (2003) (Docket No. 239074). Judge Whitbeck authored the opinion addressing, as an issue of first impression, the proper interpretation of a witness-tampering statute. The prosecutor originally charged Greene with manslaughter for the willful killing of an unborn child after he allegedly physically assaulted his pregnant girlfriend. Greene then violated the district court's order not to have contact with the girlfriend. During phone calls, Greene asked his girlfriend not to come to the preliminary hearing and offered suggestions of where to hide. The girlfriend did appear, however, and admitted to the conversations with Greene. Judge Whitbeck held that the witness-tampering statute made illegal any willful act or attempt to keep a witness from attending, testifying, or providing information in or for a present or future official proceeding by affecting the witness's ability to do so. The evidence presented was sufficient to bind Greene over for trial because it could have allowed a reasonable person to infer that Greene willfully attempted to "interfere with" his girlfriend's attendance at the hearing. There was no application for leave.
People v Willing, 267 Mich App 208 (2005) (Docket No. 251786). Willing was charged with conspiracy to deliver 225 to 649 grams of a controlled substance after arranging to sell nine ounces of cocaine to an undercover police officer. Before trial, the prosecution filed a motion to disqualify Willing's retained attorney on the ground that the attorney had a conflict of interest. The trial court granted the motion to disqualify Willing's attorney, and appointed an attorney to represent Willing. During a later pre-trial hearing, the appointed attorney informed that trial court that Willing wished to represent himself at trial. When questioned about the request, Willing stated that he wanted an adjournment in order to allow him time to find a new retained attorney, or have the court appoint him a different attorney. On further questioning, Willing stated that it was doubtful he would actually be able to afford retained counsel. The trial court then ruled that Willing could represent himself with his current appointed attorney as standby counsel. Willing represented himself during the hearing.
After Willing's jury was empanelled at trial, the court confirmed that Willing intended to proceed pro se with Neumann acting as standby counsel. However, following his conviction, Willing appealed, arguing that he was denied his constitutional right to counsel during the pre-trial hearing and jury selection because he did not unequivocally waive his right to counsel until after the jury was selected at trial. In an authored opinion, Judge Whitbeck reversed on the ground that Willing experienced a total deprivation of counsel during a critical stage of the proceedings when he did not unequivocally waive his right to counsel during the pre-trial hearing. He did not state that he wished to represent himself; instead, he stated his desire to retain a different attorney. Judge Whitbeck further found that the presence of standby counsel did not legitimize the waiver-of-counsel inquiry, which did not comport with legal standards. Willing suffered a total deprivation of counsel during a critical stage of the proceedings. There was no application for leave.
People v Conley, 270 Mich App 301 (2006) (Docket No. 258400). After an altercation with another man, Conley was charged with various crimes. Due to disruptions at trial, the trial judge threatened to tape Conley's mouth shut. Following his conviction, Conley appealed, arguing that he was denied his constitutional right to a fair trial because the judge's threat evidenced his impartiality. In a per curiam opinion, the Court of Appeals explained that the United Supreme Court had already held that "there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant . . . : (1) bind and gag him; (2) cite him for contempt; [or] (3) take him out of the courtroom until he promises to conduct himself properly." However, the first option was recommended only as a last resort. Accordingly, the Court of Appeals affirmed Conley's conviction, holding that he was not denied his right to a fair trial when the trial judge merely warned him of what actions it could take if he continued to disrupt the trial proceedings. The Supreme Court denied leave.
Duncan v State, 284 Mich App 246 (2009) (Docket Nos. 278652, 278858, and 278860). Duncan and seven other individuals brought suit against the state of Michigan and the Michigan Governor in Ingham Circuit Court, alleging that they were denied their state and federal constitutional rights to counsel and effective assistance of counsel as a result of the court-appointed, indigent defense systems currently employed in Berrien, Genesee, and Muskegon counties. The plaintiffs—pre-conviction criminal defendants—alleged that, due to systemic constitutional deficiencies in regard to indigent representation, it was impossible for them to receive effective assistance of counsel. The Ingham Circuit Court granted their motion for class certification and denied the state and governor's motions for summary disposition, which were based, among other theories, on governmental immunity and justiciability doctrines. The state and governor appealed. The majority opinion held, in pertinent part, that the plaintiffs had sufficiently pleaded facts that, if true, established that they had standing and that their claims were ripe for adjudication.
Judge Whitbeck dissented, disagreeing that the plaintiff's claims were justiciable. Judge Whitbeck concluded that the plaintiff's claims were conjectural and hypothetical in nature because, under United States Supreme Court precedent, a finding of prejudice, as required to claim ineffective assistance of counsel, could not be established in the absence of showing actual prejudice to a particular criminal defendant during the course of his attorney's representation. Judge Whitbeck stated that the majority erred in holding that the plaintiff's claims could move forward on the basis of their systematic deficiency claims. As of December 2009, an application for leave is currently pending in the Supreme Court.
Human Life
Taylor v Kurapati, 236 Mich App 315 (1999). Shelby Taylor was born with severe disabilities. Her parents sued the physician, Kurapati, alleging the tort of "wrongful birth" in that Kurapati was negligent in making an interpretation of an ultrasound that minimized the child's apparent disabilities, thereby denying them the opportunity to terminate the pregnancy. Judge Whitbeck authored the majority opinion that analyzed the tort of "wrongful birth" and determined that it had no place in Michigan jurisprudence. In his opinion, he asked the following questions:
If we conclude that in a proper hierarchy of values, the expense of supporting life should not outweigh the benefit of that life . . . how can we say that what we really mean is that such expense should not outweigh the benefit of lives of healthy children, but can outweigh the benefit of lives of disabled children? If we say that a court "has no business declaring that among the living are people who never should have been born," . . . how can we continue to say--and here virtually explicitly through the device of compensating the parents for the expenses of that "wrongful birth"--that courts can go about the business of declaring that living, but disabled, children should never have been born?
Judge Whitbeck labeled the wrongful birth tort a "misshapen jurisprudence," in the process stating that, "[W]rongful birth cases are not abortion cases." He went on to say that:
If the United States Supreme Court had never decided Roe v. Wade, the Eisbrenner decision (an earlier Court of Appeals case recognizing the wrongful birth tort) would have been the same, because it takes its basic rationale from Troppi (another prior Court of Appeals case recognizing the wrongful birth tort), a pre- Roe v. Wade decision. Conversely, eliminating the tort of wrongful birth in Michigan would have no effect whatever on the federal constitutional right that the Roe v. Wade Court recognized.
Judge Whitbeck also discussed the relationship between the concept of wrongful birth and applied eugenics, stating:
To our ears, at the close of the twentieth century, this talk of the "unfit" and of "defectives" has a decidedly jarring ring; we are, after all, above such lethal nonsense. But are we? We know now that we all have at least five recessive genes but, according to Bowman, (a scientific commentator) when scientists map the human genome, they will unveil many more potentially harmful genes in each of us. Bowman states that "[p]sychoses, hypertension, diabetes, early- and late-appearing cancers, degenerative disorders, susceptibility genes for communicable diseases, genes for various mental deficiencies . . . aging genes, and other variations and disorders will be ascertained." Will we then see the tort of wrongful birth extended to physicians who neglect or misinterpret genetic evidence and thereby fail to extend the option of a eugenic abortion to the unsuspecting parents of a genetically "unfit" and "defective" child? Our current acceptance of the wrongful birth tort would require the answer to this question in Michigan to be: yes.
We further note that it is but another short half step from the concept of preventing the birth of an "unfit" or "defective" child to proposing, for the benefit of the child's overburdened parents and of the society as a whole, that the existence of the child should not be allowed to continue. Again, this sounds preposterous, but is it? As described by Bowman:
Daniel Callahan, the former President and Founder of the Hastings Center, the preeminent center for bioethics in the United States, has proposed age-based rationing of health care for elderly persons to alleviate escalating health care costs. Pain relief would be in order, but not life-saving measures, including nutrition. In short, aged individuals past their late seventies or early eighties should go quietly into the night in order that the generation to follow would have access to health care--in their early years.
If the elderly have a duty to die—indeed, to be starved to death—then why not the disabled child? After all, if that child never should have been born, then that child has no real right to go on living, thereby imposing the costs of the child's continued existence on the parents and society. This, we conclude, is the logical end of the slippery slope inherent in the application of the benefits rule through the wrongful birth tort.
There was no application for leave.
In Re AMB, Minor, 248 Mich App 144 (2001) (Docket No. 218869). This is the "Baby Allison" case in which, after a series of flawed family court proceedings, the staff of the hospital in which Baby Allison had been placed, without any legal authority, removed her from life support and ended her short life. Judge Whitbeck authored the opinion that condemned the hasty family court proceedings, "precisely because," as he put it, "those involved in this decision knew that a life hung in the balance." In his conclusion, Judge Whitbeck referred to the daughter of General Charles de Gaulle, a retarded child named Anne. At Anne's funeral, de Gaulle turned to his wife and said, "Now at last our child is just like all children." Judge Whitbeck commented:
"It almost certainly did not occur to Charles de Gaulle that his daughter should be put to death for her disabilities. We again observe that we can fashion no remedy that will unmake the decisions that led to baby Allison's death; now she is, in the true meaning of de Gaulle's heartbreaking phrase, just like all other children."
There was no application for leave.
Governmental Transparency
People v Whitney; People v Fyvie; People v Surgent, 228 Mich App 230 (1998). Whitney, Fyvie, and Surgent were all members of the Vassar City Council. In the first criminal prosecution under the Open Meeting Act (OMA), they were charged with and convicted of misdemeanors on the grounds that they intentionally violated the OMA. The COA held that the crime of intentionally violating the OMA is a specific intent crime. (A specific intent crime requires a particular criminal intent beyond the act done, while a general intent crime merely requires the intent to perform a prescribed physical act.) Judge Whitbeck authored the opinion that held the jury instructions were flawed on this point and reversed the convictions. The Supreme Court denied leave.
The Herald Company v City of Kalamazoo, 229 Mich App 376 (1998). The Herald Company, the owner of the Kalamazoo Gazette, filed a Freedom of Information Act (FOIA) suit against the City of Kalamazoo concerning documents relating to an investigation of the disappearance of large quantities of narcotics from the evidence room of the Kalamazoo Department of Public Safety. The trial court ordered the production of most of the documents, but allowed the City to redact or withhold some of them. Judge Whitbeck authored the opinion that rejected the City's argument that there was an ongoing investigation since the applicable statutes of limitations for theft of controlled substances and other crimes had not run. He stated that this argument "stretches the law enforcement exception of the FOIA beyond permissible limits." He further said that, "We see no basis, in state of federal cases construing the Michigan FOIA or its federal counterpart, for the proposition that an ‘open investigation' can be construed to continue until the expiration of the applicable period of limitations for criminal prosecution without active, ongoing law enforcement investigation." There was no application for leave.
Elections & Campaign Finance
Citizens for Protection of Marriage v Board of State Canvassers, 263 Mich App 487 (2004) (Docket No. 257542). A citizens group filed an initiative petition to amend the Michigan Constitution to define marriage as a union between one man and one woman. Although there were a sufficient number of valid signatures on the group's petition, the Board of Canvassers refused to certify the petition. The group sought mandamus relief, requesting that the board be ordered to certify the petition. In a per curiam opinion, the Court of Appeals held that the Board approved the form of the petition and that there was no dispute that there were sufficient signatures. Therefore, the Board was obligated to certify the petition. The Court further ruled that the Board had no authority to consider the merits of the proposal, and the issue was not ripe for review until after the law was enacted. The Court also found that the proposed ballot language was clearly written using words that had a common, everyday meaning to the general public, and created no prejudice for or against the proposal. Thus, the Board should have approved the language. The Court added that any attempt to determine how courts might eventually apply the proposed amendment, assuming it won voter approval, would be entirely speculative. The Court issued the order of mandamus, directing the secretary of state to take all necessary measures to place the proposal on the upcoming ballot using the proposed ballot language. There was no application for leave.
Citizens Protecting Michigan's Constitution v Secretary of State, 280 Mich App 273 (2008) (Docket No. 286734). Reform Michigan Government Now! (RMGN) was organized for the purpose of drafting, circulating, collecting signatures for, and submitting for approval an initiative petition that sought to alter four articles of the Michigan Constitution of 1963. Citizens Protecting Michigan's Constitution claimed that the proposed initiative petition was not eligible to be placed on the ballot because it was not merely a constitutional "amendment," but a "general revision of the Michigan Constitution that only a constitutional convention could accomplish.
In a per curiam opinion, the Court of Appeals considered both the quantitative nature and the qualitative nature of the proposed changes to determine whether the proposal effected a general revision and was therefore not subject to the initiative process established for amending the Constitution. The Court held that the proposal did not even approach the field of application for the amendment procedure. Instead, the Court explained, the proposal plainly fell within the realm of a general revision because the substantial entirety of the petition altered the core, fundamental constitutional underpinnings, amounting to a whole scale revision. Accordingly, the Court granted Citizens Protecting Michigan's Constitution's request for a writ directing the Secretary and the Michigan State Board of Canvassers to reject the initiative petition. The Supreme Court affirmed the result.
Michigan Education Association v Secretary of State, 280 Mich App 477 (2008) (Docket No. 280792). In a declaratory ruling, the Secretary of State concluded that § 57 of the Michigan Campaign Finance Act (MCFA) prohibited a school district, as a public body, from administering a payroll deduction plan on behalf of a labor union's political action committee (PAC) and that a violation cannot be remedied by a union's reimbursement of the costs associated with administering such a plan. The Michigan Education Association challenged the Secretary's ruling. The trial court found that a school district could administer payroll deductions requested by their employees, provided that all expenses of making the deductions are borne by the PAC or its sponsoring labor organization are paid in advance. The Secretary of State appealed. The majority held, in pertinent part, that reimbursement, advance or otherwise, did not prevent an otherwise illegal expenditure from ever becoming an expenditure.
Judge Whitbeck dissented, concluding that under the MCFA the costs of such payroll deduction systems were not "expenditures" at all. Therefore, Judge Whitbeck would have held that the allocated costs to the schools for collecting and delivering payroll deductions for "contributions" by members of the MEA affiliate to the PAC did not constitute an "expenditure" as the MCFA defines that word. As of December 2009, an application for leave is currently pending in the Supreme Court.
Employment & Workers Compensation
Lincoln v General Motors Corp, 231 Mich App 262 (1998). The Second Injury Fund, a state agency, applied the "age sixty-five" reduction in benefits under the Workers Disability Compensation Act to Lincoln, a worker who was permanently and totally disabled through the loss of the use of both legs because of a horrific accident in 1966 at a General Motors plant. (Lincoln was one of the "Eva King people," a sobriquet derived from King v Second Injury Fund, 382 Mich 480 (1969) in which the Supreme Court decided that a worker injured before July 1, 1968 was entitled to full "differential" benefits.) The Workers Compensation Appellate Commission ruled in favor of Lincoln, thereby giving full retroactive effect to a prior case, Wozniak v General Motors Corp, 198 Mich App 17262 (1993). The Court of Appeals affirmed. Judge Whitbeck concurred, stating that, in Blackstone's formulation, Wozniak was always the "true law" and must be given full retroactive effect. The Supreme Court affirmed, in the process stating that, "We therefore agree with Judge Whitbeck that ‘Wozniak I did not establish a new principle of law as prior case law has interpreted that phrase.'"
Bracco v Michigan Technological University, 231 Mich App 578 (1998). Michigan Technological University terminated Bracco after two other employees reported that he had committed a theft. Bracco sued, and the trial court held that he had a "just cause" contract of employment (i.e. that he could not be discharged except for just cause. Judge Whitbeck authored the opinion that reversed, in the process interpreting Toussaint v Blue Cross and Blue Shield, 408 Mich 579 (1980). He stated that under the "contractual leg" of Toussaint, there was no mutual assent to a just cause contract of employment expressed in clear and unequivocal statements of job security. He also stated that the "legitimate expectations leg" of Toussaint, (i.e. the principle announced in Toussaint that when an employer has policies and practices that establish "legitimate expectations," the employee is entitled to rely on those expectations) required a determination of (1) what, if anything, was promised and (2) whether the promise, if made, was reasonably capable of instilling a legitimate expectation of just cause employment. Judge Whitbeck said that offering an early retirement bonus to an employee does not, ipso facto, convert that employee into a just cause employee. The Supreme Court denied leave.
Connaway v Welded Construction, 233 Mich App 150 (1998). Connaway injured her knee while working for Welded Construction in Michigan and received Michigan worker's compensation benefits. She later re-injured her knee while working for Welded Construction in New York. A worker's compensation magistrate allowed a reinstatement of Connaway's benefits on the grounds that the New York injury did not aggravate her underlying condition but the Workers Compensation Appellate Commission (WCAC) reversed, finding that Connaway did not have a continuing disability from the Michigan injury. Judge Whitbeck authored the opinion that upheld the WCAC, in the process outlining the differences between administrative review by the WCAC of a magistrate's decision and judicial review by the courts of a WCAC decision. He then reviewed the decision of the WCAC and applied the "successive injury" rule to hold that Connaway's New York injury was not just a recurrence of her Michigan injury. The Supreme Court affirmed, relying in part on Judge Whitbeck's analysis.
Hughes v Lake Superior & Ishpeming Railroad Company, 263 Mich App 417 (2004) (Docket No. 246260). Hughes sued the railroad for damages arising from work-related injuries. The railroad moved for summary disposition on the ground that the three-year statute of limitations under the Federal Employer's Liability Act began to run when Hughes discovered his work-related injuries several years earlier. The trial court denied the motion, and the railroad appealed. Hughes, relying on a continuing tort theory, argued that the statute of limitations only began to run when the railroad ceased to assign him to the job duties that caused his injuries. In a per curiam opinion, the Court of Appeals reversed and ordered summary disposition be granted in Hughes' favor. After reviewing the origins of the discovery rule and explaining the questionable viability of the continuing tort theory, the Court ruled that the discovery rule was the proper standard to determine the accrual of Hughes' claims. The Supreme Court denied leave.
Families
Crego v Coleman, 232 Mich App 284 (1998). This case was decided by a special conflict panel under MCR 7.215(H) and involved the constitutionality of a (later repealed) section of the Paternity Act governing child support for illegitimate children. This section allowed the parties in a paternity action relating to such children to reach a settlement barring future modification of child support. The plaintiff, Crego, entered into such a settlement but later sought to modify it to increase the child support for her child. She argued that the Paternity Act barred such modification when illegitimate children were involved but that for legitimate children modification was allowed and, therefore, claimed a denial of equal protection. The majority of the special conflict panel found the section of the Paternity Act to be unconstitutional on equal protection grounds. Judges Hoekstra and Whitbeck dissented, pointing out that the disparity of treatment could have been, and presumably often was, obviated by utilizing language in child support agreements involving illegitimate children to provide for later modifiability by the parties or the cognizant court. The Supreme Court reversed, adopting in part the reasoning of the dissent.
Rose v Stokely, 258 Mich App 283 (2003) (Docket No. 241029). This case involved an equal protection challenge, on gender-based grounds, to the constitutionality of certain provisions of the Paternity Act that allocate the "confinement expenses" of a child born out of wedlock entirely to the father of that child. In the majority opinion, Judge Whitbeck stated that there is almost universal agreement that the power of the Legislature is not without limits and quoted the seminal United States Supreme Court case of Marbury v Madison for the proposition "that those limits may not be mistaken, or forgotten, the Constitution is written. Judge Whitbeck went on to conclude, however, that the Paternity Act was a comprehensive legislative plan to assure that minor children born outside a marriage are provided with support and education. He stated that:
No father will ever bear a child and no father will therefore ever be confined before, during, and after childbirth. This is an indisputable physiological fact that goes deeper than gender stereotypes; it is one of the few immutable differences between men and women. It has nothing to do with ability, merit, status, opportunity or the lack of it, patriarchy, matriarchy, sexism, or egalitarianism.
There was no application for leave.
Surman v Surman, 277 Mich App 287 (2007) (Docket No. 276615). Mr. Surman challenged the trial court's decision, granting Mrs. Surman custody of the parties' two minor children. Mr. Surman appealed, and the Court of Appeal, in a per curiam opinion, rejected his claim that the trial court should not have allowed his son to testify in open court, but instead interviewed him in chambers. After reviewing case law outlining the various considerations in requiring open court versus in chambers testimony, the Court of Appeals held that open court testimony was permissible when the child was testifying about matters other than his parental preference and the trial court complied with the court rules by specifically questioning the child to determine his competency and ability to tell the truth. Plus the trial court properly took additional safeguards, like soliciting the active participation of a psychologist. The Court noted that "although courts should seek to avoid subjecting children to the distress and trauma resulting from testifying and being cross-examined in court, concerns over the child's welfare are outweighed when balanced against a parent's due process rights" to be able to respond to allegations of abuse or mistreatment. The Court of Appeals also held that the trial court did not err in admitting the child's therapist's expert testimony, given that the trial court extensively questioned the therapist regarding her background and elicited specific information regarding her qualifications to testify. To the extent that the father believed that the therapist was overstating or exaggerating her qualifications, cross-examination was the proper avenue to attempt to invalidate those qualifications. The Supreme Court denied leave.
In re Estate of Raymond, 276 Mich App 22 (2007) (Docket No. 267364). The testator, Alice Raymond, who had no children, left a will that provided for a distribution of the residue of her estate as follows:
A. Fifty (50%) percent thereof to my brother [sic] and sisters that survive me share and share alike or to the survivor or survivors thereof.
B. Fifty (50%) per cent thereof to the brothers and sisters of my husband that survive me, share and share alike or to the survivor or survivors thereof.
The descendants of Raymond's predeceased siblings challenged the trial court decision that denied their claim for a share of a Raymond's estate. The parties contested whether the residuary clause meant that only surviving siblings inherited or whether it meant that the descendants of predeceased siblings were able to inherit.
In an authored opinion, Judge Whitbeck determined that the phrase "or to the survivor or survivors thereof" in paragraph A modified the phrase "my brothers and sisters that survive me," and indicated that Raymond intended only for her surviving siblings to inherit. Judge Whitbeck also ruled that the same result was justified by the phrase "or to the survivor or survivors thereof" in paragraph B because it modified the phrase "the brothers and sisters of my husband that survive me." Judge Whitbeck further ruled that the language of the residuary clause taken as a whole, taking into account the use of the three separate statements: "that survive me," "share and share alike," and "the survivor or survivors thereof," expressed an intent to make a provision for the death of the beneficiaries contrary to that provided for in an antilapse statute. The Supreme Court affirmed.
In re Roe, 281 Mich App 88 (2008) (Docket No. 83642). The respondent mother appealed the trial court judgment terminating her parental rights, under Michigan statute and under the Indian Child Welfare Act (ICWA), to her daughter, who was an Indian child, on the grounds that the Department of Human Services' attempts to rehabilitate the respondent were unsuccessful and because continued custody was likely to result in damage to the child. The respondent's first child had died from intracranial trauma while he was in the respondent's care, and a homicide investigation remained unresolved. The respondent also had a history of domestic violence and lived with a man who had been convicted of attempted fourth-degree criminal sexual conduct with a child. As the ICWA required, the trial court found that the mother's continued custody was likely to result in serious emotional or physical damage to the daughter. The respondent appealed, arguing that the trial court erred by failing to require the DHS to prove that it made "active efforts" to provide the remedial services and rehabilitative programs that the ICWA required. The respondent also argued that the trial court clearly erred when it found that her continued custody was likely to result in serious emotional or physical damage to the child.
In an authored opinion, Judge Whitbeck concluded that, although the Department had proved the statutory grounds for termination under Michigan law, the ICWA also required the trial court to make findings regarding whether the DHS made "active" (rather than passive) efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and regarding whether those efforts proved unsuccessful. Because the trial court did not make these findings, Judge Whitbeck vacated the order terminating the respondent's parental rights and remanded the case for further proceedings.
Liability Claims
Salesin v State Farm Fire & Casualty Company, 229 Mich App 346 (1998). State Farm insured Salesin under a full replacement insurance policy requiring that it compensate its insured for the "actual cash value of the damage." Salesin suffered water damage to his home and made a claim, which State Farm denied in part by deducting an amount for "contractor's overhead and profit." In a per curiam opinion, the Court of Appeals held that there was no logical reason for deducting contractor's overhead and profit when making payments under the State Farm policy. The Supreme Court denied leave.
Hawkins v Mercy Health Services, 230 Mich App 315 (1998). Hawkins was discharged from the hospital for providing false information in connection with a patient incident. She then brought suit against the hospital, alleging that the hospital published false and defamatory statements, which conveyed that she was discharged for administering a drug that resulted in a patient's death. The trial court granted summary disposition to the hospital, and Hawkins appealed. Judge Whitbeck authored the opinion that held that: (1) there was a genuine issue of material fact as to whether the hospital's statements relating to the patient's death implied that Hawkins was discharged because of her involvement and (2) the implication created by the hospital's statements relating to the patient's death and Hawkins' subsequent discharge did not, as a matter of law, have the same effect on the mind of the audience as would a statement accurately identifying the reasons underlying Hawkins' discharge. The Supreme Court dismissed the application for leave to appeal.
Estate of Steven Krass v Joliet, Inc, 233 Mich App 661 (1999). Krass was shot and killed in a parking lot in which the security company directed him to park prior to his attendance at a concert. His estate sued, alleging that the security company failed to properly protect Krass or to control the premises. Judge Whitbeck authored the opinion that affirmed, holding that (1) Krass was not a third party beneficiary of the contract between the security company and the concert promoter, (2) the security company did not owe Krass a duty to protect him against criminal attack since that duty was one of police protection vested in the government by constitution and statute, and (3) the security company was not liable on the theory that its safety precautions were less effective than they could have been or should have been. There was no application for leave.
Zine v Chrysler Corp, 236 Mich App 261 (1999). Zine brought suit against Chrysler alleging that its warranty and "lemon law" documents violated the Michigan Consumer Protection Act (MCPA). After consolidating with case with similar actions brought by other buyers, the trial court denied Chrysler's motion for summary disposition. Judge Whitbeck authored the opinion that reversed on this point, holding that (1) purchase of item primarily for business or commercial use does not come within scope of MCPA; (2) a manufacturer had no duty under MCPA to provide information regarding Michigan lemon law; (3) a transaction is complete, for purposes of provision of MCPA making it unlawful to fail to reveal facts material to the transaction, when a vehicle is purchased; and (4) Chrysler's allegedly misleading statements and omissions were not material for purposes of MCPA. There was no application for leave.
Jo-Dan Ltd v Detroit Board of Education, unpublished opinion per curiam of the Court of appeals, issued July 14, 2000 (Docket No. 201406). A jury awarded $7,600,000 against the Detroit Board of Education in a suit brought by Jo-Dan and its owner. The Board appealed. The Court of Appeals affirmed, in the process construing the "fair and just treatment" clause of the Michigan Constitution, Const 1963, art 1, § 17. The COA concluded that, "If the finder of fact in the trial court determines that a plaintiff sustained his, her or its burden of proving that the defendant violated the fair and just treatment clause, the full panoply of remedies are available" and that these remedies include monetary damages when appropriate. Judge Whitbeck concurred, noting that the case was a "particularly egregious example of private corruption leading to a betrayal of public trust." Judge Whitbeck concluded that:
The entire matter was a disgrace. No amount of after-the-fact posturing or argument will make it any less of a disgrace or lessen the responsibility of those involved. If there ever was a case for which the fair and just treatment clause . . . furnishes a cause of action, it is this one.
The case was unpublished and therefore does not serve as precedent. The Supreme Court denied leave.
A&M Supply Company v Microsoft Corporation, 252 Mich App 580 (2002) (Docket No. 236598). A&M Supply Company brought suit as a class representative, claiming that Microsoft Corporation illegally monopolized the personal computer software market in Michigan, harming A&M and many other residents of this state who purchased certain Microsoft products. The trial court certified the suit as a class action, and Microsoft appealed. Judge Whitbeck authored the opinion to reverse, holding that A&M had not met the burden to set forth a viable method for proving actual damages on a class-wide basis as required in an indirect purchaser suit brought as a class action. He also held that A&M had not satisfied its burden of proving that a class action was a superior way to resolve this dispute. There was no application for leave.
Netter v Bowman, 272 Mich App 289 (2006) (Docket No. 268571). Netter was injured in a car accident. The trial court granted Bowman summary disposition, finding, in part, that Netter failed to show an objectively manifested injury. In an authored opinion, Judge Whitbeck explained that the pertinent question was whether, in order for a plaintiff to show that her injury was objectively manifested, must a plaintiff show that her injuries were medically identifiable (that is, merely diagnosable by the plaintiff's subjective symptoms) or medically measurable (capable of being evidenced by objective testing). After reviewing prior case law interpreting the applicable statutory language, Judge Whitbeck held that, "for an impairment to be objectively manifested, there must merely be a medically identifiable injury or condition that has a physical basis." Judge Whitbeck then held that, even though the trial court erred in granting summary disposition because Netter's soft-tissue injuries were possibly capable of objective verification, Netter failed to show that the course or trajectory of her normal life was affected as a result of the relatively brief period, six months, of recuperation. There was no application for leave.
Casey v Auto Owners Ins Co, 273 Mich App 388 (2006) (Docket No. 266576). This case arose when a fire damaged the Caseys' home and they filed a claim for insurance benefits. The Caseys appealed the trial court's denial of their motions for summary disposition and grant of summary disposition in favor of the insurer. In a per curiam opinion, the Court of Appeals held that the Caseys were not entitled to relief for breach of contract because they admittedly failed to read their insurance policy and knowingly abrogated their duty to inquire about a change in coverage disclosed by their insurance agent, thereby implicitly accepting the new coverage limits. Therefore, the Court held that the trial court did not err in enforcing the plain language of the insurance contract. The Supreme Court denied leave.
Dawe v Dr Reuvan Bar-Levav & Associates, PC, 279 Mich App 552 (2008) (Docket No. 269147). This medical malpractice action arose out of a shooting incident at Dr. Reuvan Bar-Levav & Associates, PC, a psychiatric practice where Dawe was receiving treatment. One day a former patient came to the office, pulled a handgun, and shot and killed his Dr. Reuvan Bar-Levav. Dawe was wounded in the gunfire. The gunman then committed suicide. Dawe then sued the psychiatric practice. Dawe alleged that the gunman made threatening statements to the psychiatric practice in which he indicated that he fantasized about murder. Dawe therefore alleged that psychiatric practice was liable under two theories: statutory liability for failure to warn and common law medical malpractice. The trial court denied the psychiatric practice's motion for a directed verdict and entered judgment for Dawe. The psychiatric practice appealed.
In an authored opinion, Judge Whitbeck held that the trial court erred by failing to grant the psychiatric practice a directed verdict. Judge Whitbeck explained that Dawe failed to present evidence that the gunman communicated a threat of physical violence specifically against Dawe, as required for purposes of imposing liability under the failure to warn statute. Judge Whitbeck also found that no common law duty on the psychiatric practice to protect Dawe from other patients survived the legislature's enactment of the failure to warn statute. The Supreme Court granted leave and, as of December 2009, the case is currently pending.
Weishuhn v Catholic Diocese, 279 Mich App 150 (2008) (Docket No. 273117). Weishuhn had taught mathematics and religious classes at the church's elementary school. After a series of employment-related incidents, none of which involved the subject of religion, the elementary school terminated Weishuhn's employment. Weishuhn then filed a retaliatory termination case. The trial court considered whether the teacher's functions were primarily religious or "ministerial" in nature. The ministerial exception is a nonstatutory, constitutionally compelled exception to the application of employment-discrimination and civil rights statutes to religious institutions and their "ministerial" employees. The ministerial exception generally bars inquiry into a religious institution's underlying motivation for a contested employment decision. Ultimately, the trial court concluded that this was a fact question for the jury and denied the church's motion for summary disposition. The church then appealed.
In a per curiam opinion, the Court of Appeals extensively reviewed of applicable case law and concluded that the ministerial exception is recognized under Michigan law. The Court then concluded that the trial court erred when it determined that the issue as to whether the teacher was a ministerial employee was a fact question for the jury. According to the Court of Appeals, it was up to the trial court to determine whether the teacher was a "ministerial" employee. Therefore, the Court directed the trial court to focus on the totality of the teacher's duties and responsibilities, her position, and her functions. If the trial court were to determine the teacher was a ministerial employee, the teacher's discrimination claim would be subject to dismissal. But if the trial court were to determine the teacher was not a ministerial employee, the matter would have to be tried. There was no application for leave.
Robinson v City of Lansing, 282 Mich App 610 (2009) (Docket No. 282267). After tripping on a sidewalk, Robinson brought suit for personal injuries against the city. Robinson alleged that the city breached its statutory duty to maintain the sidewalk in reasonable repair and in a condition reasonably safe for public travel. To support its argument, the city relied on the "two-inch rule," which provides a rebut table inference of reasonable repair where a defect of a sidewalk is less than two inches. The trial court denied the city's motion for dismissal, and the city appealed. In a per curiam opinion, the Court of Appeals held that the two-inch rule applied and there was a rebut table inference that the city maintained the sidewalk in reasonable repair. Therefore, the Court concluded that the city should have been allowed to raise the two-inch rule as a defense. The Court remanded the case to the trial court for consideration of the city argument raising the two-inch rule as a defense. As of December 2009, an application for leave is currently pending in the Supreme Court.
Taxation
PM One Ltd v Department of Treasury,240 Mich App 255 (2000). PM One, a property management company, appealed from a decision of the Michigan Tax Tribunal that held that amounts that PM One transferred from its clients' individual accounts into a central depository account (CDA) constituted "gross receipts" under the Michigan Single Business Tax. Judge Whitbeck authored the opinion that reversed, concluding that the challenged amounts neither constituted "sales" nor "gross receipts" under the SBT. He stated:
[T]he payments were neither reimbursements to PM One nor indirect payments for management services that PM One provided to its individual clients. That the payments in question passed through the CDA, which PM One managed, did not alter their essential character. If the SBT is a tax on "economic activity and growth" as measured by "the increase in value of goods and services brought about by whatever is done to them between the time of purchase and sale," . . . then PM One simply did not bring about an increase in the value of goods and services that the third-party vendors provided. The payments were therefore not properly included in PM One's gross receipts.
There was no application for leave.
Real Estate, Land Use, and Environmental Regulation
Zurcher v Herveat, 238 Mich App 267 (1999). Zurcher, the putative purchaser of property in the Upper Peninsula, brought a specific performance claim and nominal claim for breach of contract damages against Herveat, the putative seller. The trial court entered a judgment on the jury's verdict for Herveat. Judge Whitbeck authored the opinion that held that: (1) Zurcher did not consent to a jury trial on the specific performance claim, (2) an error in the purchase agreement in designating the county in which the land was located and the absence of a closing date did not make the agreement unenforceable, and (3) the trial court should have made a factual finding regarding whether Herveat's alterations to the purchase agreement were material for purposes of determining whether her putative acceptance was instead a counteroffer. There was no application for leave.
Fraser Township v Linwood-Bay Sportsman's Club, 270 Mich App 289 (2006) (Docket No. 258601). The township and a golf course opposed the sportsman's club's proposed construction of a sport shooting range on its property. The trial court entered an injunction in favor of the township and golf course, and the sportsman's club appealed. In a per curiam opinion, the Court of Appeals determined that township regulation was not expressly preempted by the Act. The Act provided for local regulation of certain aspects of sport shooting ranges, and neither the state's interest nor the nature of the subject matter showed that the state was the exclusive regulator over sport shooting ranges. The Court further ruled that the proposed outdoor range was not a building or structure already in existence because it was not on the same location as an abandoned firing range. The Act did not allow the construction of an entirely new structure, even if the club needed it to expand/increase membership, events, or activities. There was no application for leave.
Sierra Club Mackinac Chapter v Department of Environmental Quality, 277 Mich App 531 (2008) (Docket No. 269181). The Sierra Club challenged the Michigan Department of Environmental Quality's declaratory ruling rejecting the group's Clean Water Act challenges to a general permit for Michigan concentrated animal feeding operation (CAFO) owners. The trial court affirmed the declaratory ruling. In an authored opinion, Judge Whitbeck reversed the declaratory ruling and remanded for case for further proceedings. Judge Whitbeck concluded that the Sierra Club properly sought judicial review of the MDEQ's declaratory ruling in state court because it was not contesting any action taken by the Environmental Protection Agency's Administrator, rather it was asking the MDEQ for a declaratory ruling that Michigan's National Pollutant Discharge Elimination System plan was contrary to federal law.
After extensively reviewing the applicable provisions of the Clean Water Act, Judge Whitbeck also held that the discharge rates of a CAFO's nutrient management plan were "effluent limitations" because they affected the rates of discharge from a point source into navigable waters. Therefore, to maintain the biological integrity of the nation's navigable waters, such discharge rates had to be subject to the MDEQ's meaningful review. Judge Whitbeck additionally held that because the Clean Water Act required public participation in the development, revision, and enforcement of any effluent limitation, the MDEQ had to include a CAFO's nutrient management plan in the terms of a general permit. According to Judge Whitbeck, such CAFO nutrient management plans were required to be subject to public review and comment before the MDEQ approved the permit. The Supreme Court denied leave.
