Released: 11/03/2009   Panel: Saad, Murphy, Donofrio (PC)

Opinion - After Remand - Per Curiam - Published View Opinion

Prosecutor - Disqualification - Conflict of Interest - Former Defense Counsel - Staff - Effect - Burden of Proof
Once a defendant has shown that a member of the prosecutor’s office counseled him or represented him in the same or a related matter, a presumption arises that members of the prosecutor’s office have conferred about the matter. The prosecutor’s office bears the burden of establishing that it implemented measures to prevent improper communications and that it consistently followed through with these measures. In this case, the defendant was charged with criminal sexual conduct, and he was represented at the preliminary examination by a lawyer who then joined the two-person prosecutor's office before trial. The issue of the former defense counsel's participation was not raised by the defendant's new lawyer, the prosecutor, or the court, and following a trial the defendant was convicted. On appeal, the defendant argued that he had received ineffective assistance of counsel through his lawyer's failure to move to disqualify the prosecutor's office based on conflict of interest. The appellate court concluded that it had been error for defense counsel and the trial court to fail to address the potential conflict of interest, and it remanded for a hearing to determine whether the procedures of the prosecutor’s office had sufficiently precluded communications between the former defense lawyer and other members of the prosecutor’s staff regarding the defendant’s case. On remand, the trial court found that the prosecutor’s office had implemented measures to prevent improper communications and that it had consistently followed through with these measures, and that there were no improper communications regarding the defendant’s case.

Counsel - Effective Assistance - Trial Strategy - Presumption
In reviewing a claim of ineffective assistance of counsel, the advice of counsel is presumed to be consistent with sound trial strategy. In this case, the defendant waived his right to a jury in accordance of his lawyer’s recommendation, and on appeal the defendant contended that the advice to waive the jury had constituted ineffective assistance of counsel and had been based on the lawyer’s desire to accelerate the disposition of the case. However, the record did not indicate that defense counsel had sought any acceleration of the proceedings, and she testified that the advice regarding the jury arose from her concern about the emotional response of the jury to the testimony of the victim. Under the circumstances, the jury waiver did not establish ineffective assistance of counsel. Further, defense counsel’s failure to interview certain witnesses before trial did not result in prejudice to the defendant.

Counsel - Effective Assistance - Futile Objection
A defense lawyer is not required to make a futile objection. In this case, the defendant argued that he had been deprived of effective assistance of counsel by his lawyer’s failure to obtain medical or counseling records of the victim and failure to move to suppress the testimony of an investigator regarding the defendant’s manipulation of the victim to make her susceptible to his molestation. However, no evidence of the records was presented for review, and the defendant suggested no basis for the exclusion of the investigator’s testimony. The defendant was not deprived of effective assistance of counsel on these bases.

Sentencing - Guidelines - OV 4 - Psychological Injury - Treatment
In calculating offense variable 4 of the sentencing guidelines, a court must assess ten points if the victim suffered a serious psychological injury requiring professional treatment. To have suffered such an injury, the victim need not have actually sought professional treatment, and the victim’s expression of fearfulness is sufficient. In this case, the trial court assessed ten points under OV 4, and on appeal the defendant argued that his sentencing guidelines range had been improperly calculated. However, the defendant had subjected the child victim to systematic, repeated abuse over a period of years, and the victim had consequently undergone counseling. The trial court properly assessed ten points under OV 4.

Released: 11/03/2009   Panel: Wilder, Meter, Fort Hood (PC)

Opinion - Per Curiam - Published View Opinion

Statutes - Construction - Review - Standard
Questions of statutory construction present questions of law and are reviewed de novo.

Jurisdiction and Venue - Jurisdiction - Subject Matter - Review - Standard
Questions of subject matter jurisdiction present questions of law and are reviewed de novo.

Jurisdiction and Venue - Jurisdiction - Subject Matter - Definition
Generally, subject matter jurisdiction is a court’s power to hear and determine a cause or matter.

Jurisdiction and Venue - Jurisdiction - Probate Court - Statutory
The probate court is a court of limited jurisdiction. Its jurisdiction is statutory.

Jurisdiction and Venue - Jurisdiction - Probate Court - Exclusive
The probate court has exclusive legal and equitable jurisdiction over a matter which relates to the settlement of a deceased individual’s estate, whether testate or intestate, who was at the time of death domiciled in the county or was at the time of death domiciled out of state leaving an estate within the county to be administered, including: internal affairs of the estate; estate administration, settlement, and distribution; declaration of rights which involve an estate, devisee, heir, or fiduciary; construction of a will; determination of heirs; and determination of death of an accident or disaster victim.

Jurisdiction and Venue - Jurisdiction - Probate Court - Concurrent - Employee Benefit - Savings Plan
In matters regarding an estate of a decedent, protected individual, ward, or trust, the probate court has concurrent legal and equitable jurisdiction to determine a property right or interest and to authorize partition of a property. In this case, the decedent participated in a personal savings plan, and designated his son, the respondent, as the beneficiary in 1992. In 1997, the decedent married the petitioner, the personal representative of his estate. The decedent died in 2005, and the petitioner obtained the proceeds of the personal savings plan as the surviving spouse. The respondent challenged the validity of the petitioner’s marriage to the decedent, proffered a copy of a will of the decedent and sought probate of the estate under the will, and claimed that he was entitled to the savings plan funds as the designated beneficiary. Following a bench trial, the probate court found that the marriage had been valid and that the will had been intentionally destroyed by the decedent, and the court awarded the personal savings plan to the respondent as the designated beneficiary. The petitioner appealed, and argued that the probate court had not had jurisdiction to adjudicate the personal savings plan claim. However, the probate court had had subject matter jurisdiction over the estate and its assets, including determining whether assets were part of the estate, and it thus also had jurisdiction to determine the disposition of the personal savings plan proceeds.

Labor Law - ERISA - Purpose
The Employee Retirement Income Security Act is intended to provide a uniform regulatory regime over employee benefit plans. The ERISA is an exclusive remedy which preempts state law causes of action which relate to an employee benefit plan.

Jurisdiction and Venue - Jurisdiction - Federal - ERISA
Jurisdiction and Venue - Jurisdiction - Subject Matter - Federal Law - ERISA
Generally, federal courts have subject matter jurisdiction over ERISA claims. However, the act provides for concurrent jurisdiction of state and federal courts for claims brought by a beneficiary to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan. In this case, the respondent sought to enforce his rights as a beneficiary of a plan subject to ERISA, and therefore the probate court had jurisdiction over the claim.

Labor Law - ERISA - Benefit Plans - Survivor Annuity - Spouse - Necessity - Purpose
Under the ERISA, a pension plan must include qualified joint and survivor annuities to nonparticipating surviving spouses of deceased vested plan participants. The purpose of this requirement is to ensure a stream of income to surviving spouses.

Labor Law - ERISA - Federal Preemption
When the objectives of the ERISA conflict with state law, the ERISA prevails.

Labor Law - ERISA - Benefit Plans - Beneficiary - Waiver - Spouse - Before Marriage - Effect
Labor Law - ERISA - Benefit Plans - Beneficiary - Waiver - Spouse - Standard
Under the ERISA, a participant may designate a beneficiary for the survivor’s annuity, other than the nonparticipant spouse, only when the spouse agrees. The waiver of the spouse’s interest may be effectuated only according to certain standards, including that the election may be revoked at any time during the applicable election period. Any consent by a spouse is effective only with respect to that spouse. A waiver of the spouse’s survivor’s annuity accomplished by the employee before the marriage is ineffectual. In this case, the designation of the respondent as the beneficiary, accomplished before the decedent married the petitioner, failed to waive the petitioner’s rights to the personal savings plan under the ERISA, and therefore the probate court improperly awarded the proceeds to the respondent.

Released: 11/03/2009   Panel: Saad, Whitbeck, Zahra (PC)

Opinion - Per Curiam - Published View Opinion

Summary Disposition - Review - Standard
A trial court’s ruling on a motion for summary disposition is reviewed de novo on appeal.

Statutes - Construction - Review - Standard
The interpretation of a statute presents a question of law subject to de novo review on appeal.

Governmental Immunity - Exception - Highways - Notice of Defect - Necessity
To bring a claim under the highway exception to governmental immunity, an injured person must timely notify the governmental agency having jurisdiction over the roadway of the occurrence of the injury, the injury sustained, the exact location and nature of the defect, and the names of known witnesses.

Governmental Immunity - Exception - Highways - Notice of Defect - Format
Governmental Immunity - Exception - Highways - Notice of Defect - Sufficiency - Substantial Compliance
The requirement of the governmental immunity act that a person give notice of an injury and its circumstances before he may commence an action under the highway exception to governmental immunity is clear and must be enforced as written. However, the notice requirement is liberally construed and is satisfied by substantial compliance. The notice need not be provided in a particular form; it must only be understandable and sufficient to notify the governmental entity of the important facts. It is sufficient if it is timely and contains the requisite information. In this case, the plaintiff’s decedent lost control of her vehicle while driving on a highway maintained by the defendant. In his notice to the defendant as required by the governmental immunity act, the plaintiff informed the defendant that the decedent’s injuries occurred when the vehicle struck pooled water on the roadway, caused by excessive and uneven wear or inadequate drainage, and hydroplaned. In his ensuing complaint, the plaintiff asserted that the decedent’s accident had been caused by the failure of the defendant to maintain sloping on the road to afford proper drainage, through improper maintenance and excessive wear. The defendant moved for summary disposition on the basis that it had been given inadequate notice of the claim. The trial court denied summary disposition, and the defendant appealed. However, the notice provided a description of the defect and the location, time and nature of the injuries, and therefore it was adequate. Further, the defendant had not shown that it had been prejudiced by any deficiency in the notice. Under the circumstances, the trial court properly denied summary disposition based on the adequacy of the notice.

Governmental Immunity - Exception - Highways - Notice of Defect - Purpose
The purposes of the notice requirement under the highway exception of the governmental immunity act are to provide the government agency with an opportunity to investigate the claim while the claim is still fresh and to remedy the defect before other persons are injured.

Summary Disposition - Barred Claim - Governmental Immunity - Standard
A motion for summary disposition may be based on the ground that a claim is barred because of immunity granted by law. To survive the motion, the plaintiff must allege facts warranting the application of an exception to governmental immunity. Neither party is required to file supportive material, but any documentation which is provided to the court must be admissible evidence. The plaintiff’s well-pleaded factual allegations must be accepted as true and construed in the plaintiff’s favor, unless the movant contradicts such evidence with documentation.

Governmental Immunity - Immunity - Applicability - Review - Standard
Determination of the applicability of governmental immunity is reviewed de novo on appeal.

Governmental Immunity - Exception - Highways - Applicability - Review - Standard
Determination of the applicability of the highway exception to governmental immunity is a question of law subject to de novo consideration on appeal.

Governmental Immunity - Governmental Function - Highway - Maintenance
The governmental immunity act provides broad immunity from tort liability to governmental agencies whenever they are engaged in the exercise or discharge of a governmental function. The maintenance and repair of a public highway is a governmental function.

Governmental Immunity - Exception - Construction
Governmental immunity is subject to narrowly construed exceptions.

Governmental Immunity - Exception - Highways
Under the governmental immunity act, each governmental agency having jurisdiction over any highway must maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person who sustains bodily injury or damage to his property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages from the governmental agency.

Governmental Immunity - Exception - Highways - Standard
To invoke the highway exception to governmental immunity, a failure to keep a highway in repair must have rendered the highway not reasonably safe and convenient for public travel.

Governmental Immunity - Exception - Highways - Notice of Defect - Before Injury
To be liable for injuries or damages caused by defective highways, the governmental agency must have known, or in the exercise of reasonable diligence should have known, of the existence of the defect and had a reasonable time to repair the defect before the injury occurred.

Governmental Immunity - Exception - Highways - Scope - Design
Governmental Immunity - Exception - Highways - Scope - Ice and Snow
Governmental Immunity - Exception - Highways - Scope - Water
Liability under the highway exception to governmental immunity is limited to claims arising from a defect in the actual roadbed itself; it does not extend to claims based on defective design or accumulations of ice and snow. However, a defect in a road which, in combination with an accumulation of ice or snow and not merely as a cause of the accumulation, caused an injury is subject to the exception. In this case, the plaintiff’s claims were based in part on assertions that the defendant had maintained improper crown or elevations of the road, and those assertions pertained to defective design rather than lack of maintenance or repair, and thus were outside the scope of the highway exception to governmental immunity. Further, the remaining claims were premised on wear of the roadbed causing ruts which accumulated water, and the ruts did not present a hazard in the absence of the accumulation, and thus the plaintiff did not plead a failure of maintenance which, in combination with the accumulation, was subject to the highway exception to governmental immunity. The trial court thus improperly denied summary disposition for the defendant.

Released: 11/03/2009   Panel: Servitto, FITZGERALD, Bandstra

Opinion - Authored - Published View Opinion

Sentencing - Youthful Trainee Act
Under the Holmes Youthful Trainee Act, if an individual pleads to a criminal offense committed on or after his seventeenth birthday, but before his twenty-first birthday, the court of record having jurisdiction of the criminal offense may, without entering a judgment of conviction and with the consent of that individual, consider and assign that individual to the status of youthful trainee.

Sentencing - Youthful Trainee Act - Effect - Conviction
An assignment to youthful trainee status under the HYTA does not constitute a conviction for a crime unless the court revokes the defendant’s status as a youthful trainee. If the defendant’s status is not revoked and the defendant successfully completes his status as youthful trainee, the court must discharge him and dismiss the proceedings.

Sentencing - Youthful Trainee Act - Effect - Right/Privilege
Under the HYTA, a defendant assigned to the status of youthful trainee may not suffer a civil disability or loss of right or privilege following his release from that status because of his assignment as a youthful trainee.

Sentencing - Youthful Trainee Act - Effect - Criminal Record - Access
Under the HYTA, unless the court enters a judgment of conviction against the individual for the criminal offense, all proceedings regarding the disposition of the criminal charge and the individual’s assignment as youthful trainee must be closed to public inspection.

Criminal Procedure - Sex Offenders Registration - Applicability - Youthful Trainee
Effective October 1, 1995, the HYTA required an individual assigned to youthful trainee status for an offense enumerated in the Sex Offenders Registration Act to comply with the requirements of the SORA. At the time, SORA registry information was confidential and closed to inspection except for law enforcement purposes.

Criminal Procedure - Sex Offenders Registration - Public Inspection
Effective September 1, 1999, the SORA was amended to create the public sex offender registry. The public registry provides names, aliases, addresses, physical descriptions, birth dates, photographs, and specific offenses for all convicted sex offenders in the state of Michigan.

Criminal Procedure - Sex Offenders Registration - Conviction - Definition
Criminal Procedure - Sex Offenders Registration - Conviction - Youthful Trainee
Effective October 1, 2004, the definition of “convicted” in the SORA was amended to include being assigned to youthful trainee status under the HYTA before October 1, 2004, and being assigned to youthful trainee status on or after October 1, 2004, if the individual’s status of youthful trainee was revoked and an adjudication of guilt was entered. In this case, on August 29, 2004, the defendant was adjudicated under the HYTA for attempted third-degree criminal sexual conduct arising out of his consensual sexual conduct with his girlfriend when the defendant was eighteen and the girlfriend was fourteen. The defendant was thus convicted for the purpose of the SORA.

Constitutional Law - Review - Standard
Constitutional issues are reviewed de novo on appeal.

Statutes - Constitutionality - Presumption - Burden of Proof
Statutes are presumed to be constitutional, and a statute must be so construed unless its unconstitutionality is clearly apparent. The party asserting the unconstitutionality of a statute has the burden of proving its invalidity.

Sentencing - Cruel and Unusual - Applicability - Punishment - Determination
Generally, criminal punishment is the deliberate imposition, by some agency of the state, of a measure intended to chastise, deter or discipline an offender. Determining whether government action is punishment requires consideration of the totality of the circumstances, including the legislative intent, the design of the legislation, the historical treatment of analogous measures, and the effects of the legislation.

Criminal Procedure - Sex Offenders Registration - Applicability - Youthful Trainee - Exclusion - Purpose
Criminal Procedure - Sex Offenders Registration - Purpose
The purpose of the SORA is to assist law enforcement officers and the public in preventing the commission of future criminal sexual acts by convicted sex offenders through monitoring of those whose pose a danger. The purpose of the amendment to the SORA to exclude from registration requirements those who complete diversion under the HYTA was to exclude from registration persons who do not pose a danger of committing future offenses.

Sentencing - Youthful Trainee Act - Proceedings - Closed
Under the HYTA, all proceedings regarding the disposition of the criminal charge and the individual’s assignment as youthful trainee are closed to public inspection.

Criminal Procedure - Sex Offenders Registration - Effect - Youthful Trainee - Punishment
A defendant who completed diversion under the HYTA for a conviction before October 1, 2004, is subject to registration under the SORA, and the inclusion on the registry discloses to the public the disposition of criminal charges contrary to the HYTA. The public disclosure of those on the sex offenders registry imposes a sanction on those on the registry, including juvenile offenders subject to the HYTA. In this case, the defendant was unable to obtain or retain employment because, although he had no criminal conviction, information on the sex offenders registry prompted employers to reject him, and he consequently was unable to support himself and developed depression. Under the circumstances, the requirement that the defendant register under the SORA constituted the imposition of punishment.

Criminal Procedure - Sex Offenders Registration - Youthful Trainee - Constitutionality - Cruel and Unusual Punishment
Sentencing - Cruel and Unusual - Test
Whether a punishment is cruel or unusual depends on the gravity of the offense and the harshness of the penalty, the comparative penalties imposed by other states, and the possibility of rehabilitation. In this case, the offense arose out of a consensual relationship, condoned by the girlfriend’s parents, and the defendant and his girlfriend later married. The offense thus was of little gravity, while the effect of registration on the defendant’s life was harsh. Further, the sanction would not have been imposed if the defendant had been convicted approximately one month later, and the defendant posed no danger to the public nor a potential for future offenses. Similar offenses in other states have been removed from registry requirements. Under the circumstances, the registry requirement imposed a cruel and unusual punishment on the defendant.

Released: 08/06/2009   Published: 11/03/2009
Panel: Saad, Sawyer, Borrello (PC)

Opinion - Per Curiam - Unpublished View Opinion
Opinion - Per Curiam - Published After Release View Opinion

Jurisdiction and Venue - Jurisdiction - Subject Matter - Review - Standard
Subject matter jurisdiction is a legal issue which is reviewed de novo on appeal.

Jurisdiction and Venue - Jurisdiction - Probate Court - Statutory
The probate court is a court of limited jurisdiction. Its jurisdiction is defined entirely by statute.

Mental Health - Guardians - Appointment - Developmentally Disabled - Mental Health Code
Under the Mental Health Code, except in the case of minors, a guardian for a developmentally disabled person may be appointed only pursuant to chapter 6 of the code.

Jurisdiction and Venue - Jurisdiction - Probate Court - Contract
The probate court has jurisdiction to hear and decide a contract proceeding or action by or against an estate, trust, or ward.

Jurisdiction and Venue - Jurisdiction - Probate Court - Contract - Purpose
The statute which confers jurisdiction on the probate court to heard contract actions by or against an estate, trust or ward imposes no limits on the types of contract actions subject to the court's jurisdiction. The purpose of the grant of jurisdiction was to simplify the disposition of actions involving estates.

Jurisdiction and Venue - Jurisdiction - Probate Court - Contract - No Fault Insurance - Guardianship - Developmentally Disabled
A claim arising under an insurance contract pursued by a guardian on behalf of a ward is subject to the jurisdiction of the probate court. In this case, the petitioner, a developmentally disabled person, sought no fault insurance benefits from the respondent, and the action was pursued in probate court by the petitioner’s guardian. The probate court apparently awarded benefits to the petitioner, and then also granted an award of attorney fees. The respondent appealed, and argued that the probate court was without subject matter jurisdiction to award attorney fees. However, the court had jurisdiction over the contract action pursued by the guardian on behalf of her ward, and therefore had jurisdiction to award the fees.

Insurance - Automobile - Benefits - Personal Protection - Allowable Expenses - Review - Standard
The determination whether an expense is an allowable expense under the no fault insurance act is a question of law subject to de novo review on appeal.

Insurance - Automobile - No Fault Insurance Act - Construction - Liberal
The no fault insurance act is remedial and must be liberally construed in favor of the persons intended to be benefitted.

Insurance - Automobile - Benefits - Personal Protection - Allowable Expenses - Attorney Fees - Developmentally Disabled
Generally, under the no fault act an insurer is liable to pay personal injury protection benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle. The benefits are payable only for allowable expenses, which consist of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation. Allowable expenses are not limited to medical expenses, and may include guardianship, legal, and other services. In this case, the petitioner’s lawyer investigated allegations that the petitioner’s health had been adversely affected by her guardian’s actions, and represented the petitioner’s interests in her dispute with the respondent insurer. The lawyer’s services were directly related to the petitioner’s care, and the trial court properly included the lawyer’s fees as allowable expenses under the no fault insurance act.