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Volume 31 | Number 2 | Trinity Term 2014 - Distinguished Brief Award

Distinguished Briefs

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.

Speech Transcript

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.

Case name:

MAJESTIC GOLF, LLC,
Plaintiff – Appellee,
 v.
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.

Case name:

DIANE K. SHOLBERG,
Plaintiff-Appellee, 
v. 
ROBERT AND MARILYNN TRUMAN,
Defendants-Appellants.

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.

Case Name:

PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v.
WILLIAM CRAIG GARRETT,
Defendant-Appellant.

David A. McCreedy

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.

Case Name:

ANDRIE INC.,
Plaintiff-Appellee,
v.
DEPARTMENT OF TREASURY,
Defendant-Appellant.

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.”

Case Name:

MATTHEW MAKOWSKI,
Plaintiff-Appellee, 
v.
RICHARD SNYDER
Defendant-Appellant.

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.

Case Name:

JOHN TER BEEK,
Plaintiff-Appellee,
v. 
CITY OF WYOMING,
Defendant-Appellant.

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.

Articles

Comparative Analysis for the Parent Seeking to Terminate the Parental Rights of the Other Parent
Liisa Speaker

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.

Michigan’s New Adoption Laws: Strengthening the Rights of Prospective Adoptive Parents
Elisabeth Mullins

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.

 

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Current Volume

2014

Volume 31 | Number 2 | Trinity Term 2014

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2014

Volume 31 | Number 1 | Hilary Term

2013

Volume 30 | Number 3 | Michaelmas Term
Volume 30 | Number 2 | Trinity Term
Volume 30 | Number 1 | Hilary Term

2012
Volume 29 | Number 3 | Michaelmas Term
Volume 29 | Number 2 | Trinity Term
Volume 29 | Number 1 | Hilary Term

2011
Volume 28 | Number 3 | Michaelmas Term
Volume 28 | Number 2 | Trinity Term
Volume 28 | Number 1 | Hilary Term

2010
Volume 27 | Number 2 | Michaelmas Term

Volume 27 | Number 1 | Hilary Term

2009
Volume 26 | Number 3 | Michaelmas Term