The Distinguished Brief Award is given in recognition of the most scholarly briefs filed before the Michigan Supreme Court, as determined by a panel of eminent jurists. Three briefs are chosen each year and printed in the Thomas M. Cooley Law Review. This year, due to the abundance of appellate talent in this state, the editors were compelled to recognize six briefs.
Thomas M. Cooley Law Review Distinguished Brief Award Remarks
Justice Bridget Mary McCormack
Justice McCormack delivers the keynote speech at the Distinguished Brief Awards Ceremony. She gives her perspective on appellate advocacy and notes how her perspective has broadened since taking the bench.
Before a case can be argued before the Supreme Court, the justices must vote to take up the case. In many ways, the leave-application stage can be the most important stage in a case. Appellate attorneys must recognize that the Court is less concerned with which party wins and which party loses; they are more concerned with getting the law right and providing guidance for future cases. And great legal writing, which is simply great writing, really matters.
MAJESTIC GOLF, LLC,
Plaintiff – Appellee,
LAKE WALDEN COUNTRY CLUB, INC.,
Defendant – Appellant.
Larry J. Saylor and Clifford W. Taylor
Lake Walden Country Club, Inc. (LWCC) leased land from Majestic Golf, LLC for 25 years, on which LWCC built and operates a golf course. Majestic sent LWCC a letter asking LWCC to sign a draft “Consent to Easement” that would allow construction of a road across the golf course. When LWCC failed to sign, Majestic purported to terminate the lease for default. The trial court held that LWCC defaulted when it failed to sign the Consent but that the default was not “material.” The Court of Appeals reversed, holding that the unambiguous contract must be “enforced as written.” The Supreme Court reversed and remanded, holding that issues of fact remain as to whether the letter was sufficient notice of impending default and whether Majestic’s subsequent conduct waived any claim of default.
DIANE K. SHOLBERG,
ROBERT AND MARILYNN TRUMAN,
Anthony F. Caffrey III, R. Carl Lanfear, and Paul M. Kittinger
Terri Sholberg suffered fatal injuries when her car struck a horse owned by Daniel Truman. Although Daniel Truman had owned and operated a farm for decades, his brother and sister-in-law—Robert and Marilyn Truman—held the title to the farm. At issue was whether the decedent’s estate could sue the Trumans for a nuisance that was created solely by Daniel Truman and on property that was exclusively possessed and controlled by Daniel Truman. The Supreme Court ultimately reversed the Michigan Court of Appeals and reinstating summary disposition in favor of the Trumans.
Garrett was convicted of armed robbery after a jury trial. After the Michigan Supreme Court granted Garrett’s application for leave to appeal, the Court raised the possibility that each of the approximately 40,000 prisoners within the MDOC could become eligible, under the “actual-innocence” provision of MCR 6.508 (Motion for Relief From Judgment), to re-litigate their guilt or innocence in the trial court. The People’s Brief on Appeal was directed to three goals: (1) to persuade the Court that—in the vast majority of cases—the last word on guilt or innocence had to be the trial; (2) that existing law and procedures were sufficient to free the truly innocent; and (3) that under even an expanded view of the relevant law defendant Garrett was not entitled to relief.
DEPARTMENT OF TREASURY,
Jessica A. McGivney and John J. Bursch
This case concerns the interplay between Michigan’s sales tax and Michigan’s use tax. Michigan imposes a 6% sales tax on goods sold at retail in the State. Michigan also imposes a 6% tax for the privilege of using, storing, or consuming tangible personal property in this state, unless the taxpayer can show that a 6% sales tax was “paid” when the property was purchased. The two statutes work in tandem to ensure that there is not double taxation, but that a 6% tax is paid on all tangible property transactions. In this brief, the Department of Treasury challenges the opinion of the Court of Appeals for relieving the taxpayer of its statutory burden of proof as to its entitlement to an exemption from tax and for re-writing an exemption from use tax from one based on sales tax “paid” to one based on sales tax “eligible.”
Paul D. Reingold and Charles L. Levin
Michigan’s Governor commuted the plaintiff’s mandatory life sentence near the end of her term of office. The governor signed the commutation and sent it to the Secretary of State, who signed, sealed, and filed it. Four days later the Governor revoked the commutation. Her staff withdrew the commutation from the Secretary of State and destroyed the original and all copies. The plaintiff sued the Governor and the Secretary of State, claiming that the commutation had become a final act of state that could not be constitutionally rescinded. In a 6-0 decision, the Court accepted the plaintiff’s arguments, holding that under Marbury v. Madison (1) the question was justiciable and did not violate separation of powers and (2) the commutation was final when the Governor signed it and the Secretary of State signed, sealed, and filed it.
JOHN TER BEEK,
CITY OF WYOMING,
Daniel S. Korobkin, Michael J. Steinberg, and Kary L. Moss
Ter Beek v. City of Wyoming is a declaratory judgment action in which the plaintiff, a medical marijuana patient, challenges the constitutionality of a local ordinance that bans medical marijuana. The plaintiff lives in Wyoming, Michigan, and wishes to grow and use medical marijuana in compliance with the Michigan Medical Marihuana Act (“MMMA”). The City of Wyoming adopted a local ordinance that prohibited the use and cultivation of medical marijuana anywhere within the city, even if that use or cultivation complied with the requirements of the MMMA. In a unanimous opinion authored by Justice McCormack, the Supreme Court agreed with Mr. Ter Beek, holding that (1) the local ordinance is preempted by the MMMA, and (2) the MMMA is not preempted by federal law. The Court’s decision resolves a statewide debate over the complex relationship between local, state, and federal laws pertaining to medical marijuana.
There are few statutory mechanisms by which a custodial parent could seek to terminate the parental rights of the noncustodial parent. Under the Adoption Code, a custodial parent can seek to terminate the rights of a noncustodial parent to make way for a stepparent adoption only if the custodial parent has sole legal custody and the noncustodial parent has failed to provide support or contact for at least two years. Although some cases seem to have allowed one parent to seek termination of the noncustodial parent’s rights, a strict reading of the Juvenile Code reveals that such a scenario should not be possible. For stepparent adoption cases, further legislation would have to permit termination proceedings to apply even when the parents have been awarded joint legal custody. And for juvenile code cases, further case law needs to clarify why a parent seeking termination is inconsistent with the plain language of the juvenile code.
Recently, very important changes have taken place within the area of adoption law in the form of House Bill 4646. These changes infuse the adoption process with a greater degree of certainty regarding time limits surrounding the termination and revocation of the birthparent’s parental rights. This Article analyzes the effect of House Bill 4646 by providing a general overview of the adoption process itself: past, present, and future. This Article will show how House Bill 4646 will inject much-needed certitude into the adoption process, thereby relieving the anxiety associated with adoption for the birthparent, the adoptive parent, and for the practicing adoption attorney. The changes that are taking place because of House Bill 4646 mark a positive transition in the practice of adoption law and allow for the development of permanency and stability within the adoptee’s life.
State of Madness: Mental Health and Gun Regulations
Steven W. Dulan
One important issue in this Article is the use of mental-health diagnoses to limit the lawful possession and carry of firearms, whether for self-defense or another purpose. Recently there have been many calls for the disarmament of all “mentally ill” persons. This Article explores current problems, using the author’s clients as examples, and advocates that statutes and regulations should clearly distinguish between mental illness and danger to oneself or others.
A Liberal’s Case for the Second Amendment
Craig R. Whitney
Gun control alone can never eliminate all gun violence. This Article discusses today’s gun-violence problem and the role of assault rifles in mass shootings. And the common thread among mass shooters is more often untreated mental illness, not use of “assault” rifles.
Gun Owners, Gun Legislation, and Compromise
David T. Hardy
An important human aspect of firearms ownership and regulation includes the reluctance of gun owners to consent to measures that, viewed in historical isolation, appear quite limited. This Article debates the compromise between gun owners and restrictive gun legislation and how these restrictions serve no discernible purpose except to make legal firearm ownership as difficult, expensive, and legally risky as possible.
The Special Master of the Federal September 11 Victim Compensation Fund discusses his role in distributing awards to victims of various tragedies. While the system has worked in the past, he ultimately concludes that it is not perfect and may not be the best model for the future.
Legislation New Zealand Style and U.S. Style: The Case of Inheritance Law
Hon. Sir Grant Hammond
A New Zealand judge discusses inheritance law in New Zealand and in the United States. The lecture compares the two schemes and focuses on the principle of testamentary freedom.
Class Action Devils and Angels
Justice Paul M. Perell
An Ontario Superior Court justice highlights the good and bad qualities of class-action lawsuits. He analyzes the arguments of the critics and proponents, and he focuses on the rule of the judiciary in these lawsuits.
Distinguished Brief Award is given in recognition of the most scholarly briefs filed before the Michigan Supreme Court, as determined by a panel of eminent jurist. Three briefs are chosen each year and printed in the Thomas M. Cooley Law Review.
Thomas M. Cooley Law Review Distinguished Brief Award Remarks
Justice Stephen J. Markman
Justice Markman delivers the keynote speech at the Distinguished Brief Awards Ceremony. He celebrates this occasion by discussing appellate practice in the Michigan Supreme Court and giving invaluable advice for effective advocacy.
Despite all of these temptations to append gratuitous statements, we rarely engage in such extracurricular communications. But of course, it is necessary for all of you to understand, as I believe that you so, that good briefs do change judicial minds.
PEOPLE OF THE STATE OF MICHIGAN
DAVID MARK COLE
J.J. Prescott, Miriam J. Aukerman, Michael J. Steinberg, Kary L. Moss, and John R. Minock
This amicus brief on behalf of the Criminal Defense Lawyers of Michigan and the American Civil Liberties Union (ACLU) of Michigan argues that defendants accused of first- or second-degree criminal sexual conduct in Michigan must be made aware that pleading guilty will result in mandatory, lifetime electronic monitoring after their release in order for any plea to be valid under Michigan law and the U.S. Constitution. As the brief documents at length, lifetime electronic monitoring imposes severe physical, financial, and social burdens, and these disabilities and restraints are unrelated to or vastly excessive when compared to any reasonable non-punitive governmental interest.
PEOPLE OF THE STATE OF MICHIGAN
KADEEM DENNIS WHITE
Bradley Hall, John R. Minock, Steven A. Drizin, and Laura Nirider
The Criminal Defense Attorneys of Michigan and the Center on Wrongful Convictions of Youth collaborated on an amicus curiae brief in support of rehearing in People v. White. This case involved an interrogating police officer’s statements appealing to the conscience of a seventeen-year-old suspect who had invoked his right to silence under Miranda. The Michigan Supreme Court held that the officer’s comments did not amount to the functional equivalent of express questioning under Rhode Island v. Innis, thus a subsequent confession was admissible. This brief argues in favor of greater protections for juveniles in the custodial-interrogation setting, highlighting the particular vulnerabilities of youth and the troubling frequency of juvenile false confessions.
MICHIGAN PROPERTIES, LLC,
Bill Schuette, John J. Bursch, Richard A. Bandstra, and Matt Hodges
In Michigan Properties, the Michigan Supreme Court asked whether a local assessor retains the power to adjust a property’s taxable value if he mistakenly fails to make the proper adjustment in the year immediately following a transfer of ownership. The court agreed with the Michigan State Tax Commission that the answer to that question is yes.
The Michigan Friend of the Court Bureau devoted an entire subsection of the 2013 Michigan Child Support Formula to assist trial courts in determining income for business owners and self-employed individuals. But this subsection merely provided the trial court with factors to determine when considering income, while failing to address that business owners have control over, and incentive to manipulate, their compensation, assets, and business records. As a result, child-support awards fail to meet the interests of our children.
This Comment considers the public-safety exception to the Miranda requirements and, specifically, how the exception applies to the FBI’s 16-hour pre-Miranda interrogation of suspected Boston Marathon bomber Dzhokhar Tsarnaev. It details the history of the public-safety exception from its genesis in New York v. Quarles to the recent high-profile domestic-terror cases of Umar Farouk Abdulmutallab and Faisal Shahzad. While evaluating argument for a less restrictive reading or an outright elimination of the public-safety exception (as has been advocated by many politicians in the wake of domestic terror attacks) and for a narrow reading, this Comment argues that the narrower reading’s benefits outweigh its potential costs; such a reading preserves the constitutional rights of the accused, promotes faith and certainty in the system, and would not result in increased danger to the public.
Volume 30 | Number 2 | Trinity Term 2013 - Best Practices
Leaving a Legacy of Excellence on Your Law Review
Follow the Leader
Cream of the Crop: Interviewing and Selecting for Success
Scott R. Harrison
Mentoring in Your Journal for School and Career
Nicole Sciotto & Peter Tsoflias
Intraschool Journal Relations
Graham Boswell, Lisa Hackett, Nicholas Standiford, Zach Brown, & Monique Patton
Recreating Your Organizational Structure
Publishing to a Global Audience
Paul Carrier & William Wagner
Publishing to a Global Audience
David L. Finnegan
Publishing to a Global Audience Q&A Session
Paul Carrier, David L. Finnegan, & William Wagner
Stop Waiting for Godot: Proactive Solicitations
Alternatives to Articles
Sarah Fuhrman & Colin Maguire
Social Media for Law Journals
Steven W. Kranz
Streamlining the Editing Process
Edward M. O’Brien & Spencer J. Brooks
Moving to Electronic Editing
Joshua A. Rummel & Taryn Lamme
Transforming Your Law Review from Print to Digital
Kristen E. Brierley & John E. Fries
Libraries Can Help: Institutional Repositories
Yolanda P. Jones
Using TWEN to Manage Your Law Review
The Paperless Law Review
Matthew R. Amon
Volume 30 | Number 1 | Hilary Term 2013
From the Editor
Erin Van De Putte
U.S. Ambassador Luis CdeBaca
Symposium Response Articles
Eroding Freedom’s Foundation: Human Trafficking and the Threat to American Principle
Staff of the Michigan Department of Attorney General
The Corporate Lawyer, Human Trafficking, and Child Labor: Who’s in Your Supply Chain?
E. Christopher Johnson, Jr.
Alert: Be on the Lookout for Protection Orders in the Educational Setting
Tanya M. Marcum and Catherine Davies Hoort
Volume 29 | Number 3 | Michaelmas Term 2012
Don't Tase Me Bro: A Lack of Jurisdictional Consensus Across Circuit Lines
Bailey Jennifer Woolfstead
The Symbolism of the Federal Rules of Evidence--The Created, the Fallen, and the Redeemed
Nelson P. Miller, Curt A. Benson, & Christopher G. Hastings
Volume 29 | Number 2 | Trinity Term 2012
REMARKS, JULY 11, 2012, LANSING, MI. COOLEY LAW REVIEW DISTINGUISHED BRIEF AWARDS
Chief Justice Robert P. Young, Michigan Supreme Court (speech)
Bridget McCormack and David Moran
David W. Ogden, Daniel S. Volchok, and Sonya L. Lebsack
RESIDENTIAL FUNDING CO, LLC, f/k/a RESIDENTIAL
BANK OF NEW YORK TRUST COMPANY,
Aaron D. Lindstrom, James H. Breay, and Matthew T. Nelson
Volume 29 | Number 1 | Hilary Term 2012
Community-Based Redistricting: A New Standard
Robert D. DeVries
Improving Michigan Estate Settlement
John H. Martin
Volume 28 | Number 3 | Michaelmas Term 2011
CHRISTOPHER LEE DUNCAN, BILLY JOE BURR, JR., STEVEN CONNOR, ANTONIO TAYLOR, JOSE DAVILA, JENNIFER O’SULLIVAN,CHRISTOPHER MANIES, and BRIAN SECREST, on behalf of themselves and all other similarly situation, Plaintiff-Appellees,
STATE OF MICHIGAN and JENNIFER M. GRANHOLM, Governor of the State of Michigan, Sued in her official capacity, A Michigan Corporation, Defendants-Appellants
Robin L. Dahberg, Frank D. Eaman,
Mark Granzotto, Yelena Konanova,
Julie A. North, Sarita S. Prabhu,
Kavita B. Ramakrishnan, Jessie Rossman,
Michael J. Steinberg, and Robert B. Wilcox Jr
Mark R. Bendure
Volume 28 | Number 2 | Trinity Term 2011
Krinock Lecture Series Speakers
Book Review by
Distinguished Brief by
FIFTH THIRD BANK of MICHIGAN,
FIFTH THIRD BANK of MICHIGAN,
Volume 28 | Issue 1 | Hilary 2011 - Symposium Edition
You Were There
Justice Thomas E. Brennan
Joel S. Hirschhorn
Article V Symposium
William H. Fruth
Symposium Response Comments
The Case for Calling an Article V Convention
Paul D. Carrington
Art or Assets: University Museums and the Future of Deaccessioning
Christian H. Brill
Michigan's Texting Ban: One Step Forward, Too Many Steps Back
Thomas B. Falkner III
Volume 27 | Number 2 | Michaelmas Term 2010
The Business Judgment Rule and Sphere Sovereignty
Lael Daniel Weinberger
Tracy Edry v. Marc Adelman and Marc Adelman, DO, PC
John J. Bursch, Matthew T. Nelson, and Julie Lam
Edith Kyser v. Kasson Township, a Michigan General Law Township
Christopher M. Bzdok and Michael C. Grant
Transcript from the International Leadership Conference on Human Rights and the Death Penalty held December 6–7, 2005 in Tokyo, Japan. The conference was recorded without the intent to publish. Due to this, there may be errors in the translation. If you see a blank space, it is because the recording could not be properly translated or the person speaking wishes not to be identified. In addition, because the conference took place in 2005, the biographies you see for certain speakers indicate the position they held in 2005.
Volume 27 | Number 1 | Hilary Term 2010
Lawyered Up: A Book Review Essay
Charles N. W. Keckler
Deciphering Two Related Concepts: No-Fault PIP Causation Law and the Decision in Griffith v. State Farm
George T. Sinas & Stephen H. Sinas
United States Fidelity Insurance & Guaranty Company, a foreign corporation, v. Michigan Catastrophic Claims Association, a non-profit Catastrophic Claims Association
George T. Sinas, Liisa R. Speaker, & Steven A. Hicks
Volume 26 | Number 3 | Michaelmas Term 2009
BEYOND THE MODEL RULES: ARISTOTLE, LINCOLN, AND THE LAWYER'S ASPIRATIONAL DRIVE TO AN ETHICAL PRACTICE
William T. Ellis & Billie J. Ellis
APPORTIONING LIABILITY IN ASBESTOS LITIGATION: A REVIEW OF THE LAW IN KEY JURISDICTIONS
Laura Kingsley Hong & Robert E. Haffke
ASBESTOS LITIGATION SCREENING CHALLENGES: AN UPDATE
Mark A. Behrens
ROBERT E. BENEFIEL V. AUTO-OWNERS INSURANCE COMPANY
JOHN J. BURSCH & GAETAN GERVILLE-REACHE
ANDREW LUCIAN BAVAS ET AL. and INDIANA MICHIGAN POWER CO. ET AL. and DANIEL JOHNSON ET AL.
SCOTT A. DIENES, PHILLIP J. DEROSIER, KEVIN J. O'DOWD, & JEFFREY V. STUCKEY