Michael F. Cavanagh

The case involved Michigan state police seizing various carnival games at the Branch County Fair under a search warrant and petitioning for their forfeiture as gambling devices. The trial court ordered forfeiture only for games it deemed pure chance, like rat roulette and one duck pond, while classifying others like the helix game, ring-a-pin, claw machines, and a mirrored duck pond as games of skill not subject to forfeiture. On appeal, the court held that any game involving betting—defined as staking money on an uncertain event, even with skill elements or merchandise prizes—qualifies as a gambling device under Michigan law and is forfeitable, reversing the lower court's order and remanding for a factual determination on the mirrored duck pond's visibility and for disposition of the items.

criminal law

In this case, plaintiffs in a California antitrust lawsuit against Fotomat sought documents and a deposition from the non-party Photo Marketing Association International (PMA), a Michigan trade association that collects confidential pricing and operational data from photo industry members for publication in trade newsletters and magazines. PMA moved to quash the subpoena, arguing among other grounds that compelled disclosure would violate federal antitrust laws and that it was entitled to a First Amendment journalist's privilege against revealing confidential sources. The Michigan Court of Appeals rejected the antitrust objection because the disclosure was court-ordered rather than voluntary, and it held that the news writer's privilege can extend to technical trade publications whose audience is limited to industry members rather than the general public. The court remanded for further findings on whether the privilege applied here, directing the trial court to apply the test from Riley v. City of Chester requiring the requesting party to show that the information goes to the heart of its case and that it has exhausted alternative sources. The remaining issues of good cause and burden were left for reconsideration on remand in light of any privilege determination.

free speechprocedurebusiness & regulatory

The case involved a defendant charged with delivery of a controlled substance (Valium) who claimed she was entrapped by a police informant, a former coworker facing her own criminal charges, who made repeated emotional appeals based on personal friendship and family hardship to obtain the drugs. After the trial court found no entrapment and convicted the defendant following a stipulated bench trial, she appealed. The court applied Michigan's objective test for entrapment, which focuses on whether government agents instigated or created the offense rather than the defendant's predisposition. It concluded that the informant and police had manufactured the crime, as the defendant would not have delivered the Valium without their inducement and received no benefit herself. The court therefore reversed the conviction.

criminal lawprocedure

This case arose from a 1975 breach-of-contract lawsuit in which Grettenberger Pharmacy sued Blue Cross-Blue Shield of Michigan over reduced dispensing fees paid to Michigan pharmacies under the defendant's prescription program. The trial court granted partial summary judgment, certified a class action, and entered judgment based on a class list that, due to a misfiling by plaintiff's counsel, omitted Farmer Jack Pharmacies, Inc. Plaintiff later moved under GCR 1963, 528.1 to correct the class list as a clerical mistake; the trial court denied the motion, and the Court of Appeals affirmed that 528.1 relief was unavailable because the judgment accurately reflected the court's prior action on the incomplete list. The majority nevertheless used its authority under GCR 1963, 820.1 to amend the judgment directly, ordering Blue Cross to return $8,596.53 for distribution to the omitted pharmacy. A dissent would have affirmed the denial outright, finding the majority's sua sponte relief procedurally improper.

procedurebusiness & regulatoryhealthcare

The case involved a defendant who was convicted by a jury of larceny in a building and felonious assault after he took wine and beer from a convenience store without paying and threw a bottle that struck a customer. The trial court had instructed the jury that felonious assault did not require specific intent, contrary to established Michigan law holding that the offense requires proof of intent to injure or to place the victim in reasonable fear of an immediate battery. The Court of Appeals held that omitting this essential element from the jury instructions constituted reversible error on the assault conviction, but found no error in the larceny conviction or in the prosecutor's charging discretion and other trial rulings, and therefore reversed only the assault conviction while affirming the larceny conviction.

criminal lawprocedure

The case involved defendant Viaene's appeal from his jury conviction for second-degree murder under Michigan law, following a remand for an evidentiary hearing on his claim of ineffective assistance of counsel. The defendant argued that his trial attorney was ineffective for not calling a gun expert and not seeking a directed verdict on first-degree murder due to insufficient evidence of premeditation, that the trial court gave an improper jury instruction requiring acquittal of murder before considering manslaughter, and that the prosecutor made unsupported statements in closing argument. The court affirmed the conviction, finding that counsel's performance met the standard of ordinary skill, that the evidence viewed favorably to the prosecution supported premeditation and thus no directed verdict was warranted, that the jury instructions merely suggested an order of deliberations rather than requiring acquittal first, and that any prosecutorial errors were harmless without causing a miscarriage of justice. The court also rejected the claim for a new trial based on a witness's later admission of perjury, as it would not have affected the outcome.

criminal lawprocedure

In Kull v. Watzke, the plaintiff, widow of Edmund Kull who died in a 1973 automobile accident, was appointed personal representative of his estate in 1981 and filed a wrongful death action alleging negligence by the defendant, more than three years after the death. The trial court granted the defendant's motion for accelerated judgment, ruling the claim barred by the three-year statute of limitations under MCL 600.5805(8). The court of appeals affirmed, holding that the tolling provision for persons under 18 in MCL 600.5851(1) does not apply because only the personal representative, not the minor children, is entitled to bring a wrongful death action under MCL 600.2922. The three-year limitations period had expired before the complaint was filed, so dismissal was proper.

proceduretorts & liability

The case involved a defendant convicted by jury of breaking and entering a motor vehicle with intent to steal property valued at $5 or more, and by the court as an habitual offender, leading to a sentence of 2.5 to 20 years in prison. On appeal, the defendant challenged the trial court's handling of a jury request during deliberations for eight photographs used in a pretrial showup, which the judge instructed the bailiff to deny without consulting counsel or allowing the items into the record. Relying on the precedent in People v Cain, which strictly prohibits any communication with the deliberating jury outside the courtroom and in the presence of counsel, the court held this ex parte instruction constituted reversible error under stare decisis and reversed the conviction, remanding for a new trial; it also directed the trial court to articulate factors under MRE 609 for any prior convictions on retrial.

criminal lawprocedure

In Dyer v. Department of State Police, petitioners sought judicial review of a Michigan Civil Service Commission grievance decision upholding the Department’s policy limiting nonduty use of state police vehicles to officers directly involved in delivering police services and subject to emergency calls; their positions in the Private Security and Investigator Section were excluded. The trial court denied the petition, and the Court of Appeals affirmed, finding the hearing officer’s decision supported by competent evidence. The court held that express departmental policy statements assigned vehicles to positions rather than individuals and that a 1975 settlement agreement did not apply to petitioners, precluding any implied contractual rights under Toussaint v. Blue Cross & Blue Shield. It further rejected the equal-protection claim, concluding that the classification based on emergency-call status had a rational basis tied to fiscal constraints and operational needs.

labor & employmentcivil rights

In Bourke v. Warren, plaintiffs sued their former attorney for legal malpractice, alleging that his negligence caused the statute of limitations to expire on a property damage claim arising from a truck accident damaging their building. The trial court granted summary judgment to the defendant, finding that the plaintiffs had not suffered any injury because they recovered the full amount of their loss from their own insurance carrier in a separate lawsuit. The appellate court affirmed this decision, reasoning that even if the attorney was negligent in allowing the limitations period to expire against other parties, the plaintiffs' ability to obtain full recovery from a third party meant they could not prove damages from the alleged malpractice. The court also noted that claims for additional damages like legal expenses or mental anguish were not properly pled and thus could not be considered.

torts & liabilityprocedureproperty

The case involved respondent Richard Baker, who was compelled to testify at his civil commitment hearing in probate court over his counsel's objections, leading to his commitment to a state mental hospital for up to 60 days; the circuit court affirmed, and Baker appealed claiming a violation of his Fifth Amendment and due process rights. The Michigan Court of Appeals affirmed the commitment order, ruling that a person in a civil commitment proceeding has no right to refuse to testify regarding non-incriminating matters. The court reasoned that the Fifth Amendment privilege against self-incrimination, while applicable beyond strictly criminal cases, does not extend to civil commitment hearings because they are non-punitive, as distinguished from criminal proceedings in precedents like In re Gault and Addington v. Texas, which applied a clear and convincing evidence standard rather than beyond a reasonable doubt.

civil rightsprocedurecriminal law

The case involved Michigan attorney Arthur S. Woll, who was indicted under MCL 750.410 for soliciting workers’ compensation claims, after a lower court had ruled the statute unconstitutionally overbroad and enjoined its enforcement. On remand from the Michigan Supreme Court, the Court of Appeals construed the solicitation statute narrowly to prohibit only in-person solicitations substantially motivated by an attorney’s pecuniary interest, while excluding truthful advertising, mass mailings, and certain union-related conduct. The court rejected vagueness and equal protection challenges, held that the statute provided fair notice, and determined that this limiting construction avoided First Amendment violations by targeting only conduct likely to involve fraud, undue influence, or overreaching. It therefore set aside the permanent injunction and permitted Woll to be reindicted under the narrowed interpretation.

free speechcriminal lawbusiness & regulatory

This case involved the revocation of a defendant's probation after he was convicted of new crimes (criminal sexual conduct and armed robbery) while on probation for an earlier offense of entering without breaking. The court affirmed the revocation of probation, rejecting claims that the timing of notice and lack of a preliminary hearing violated due process. The core reasoning was that Michigan's single-hearing procedure satisfied due process when held close to notice, the defendant could not challenge the underlying convictions at the revocation hearing, and no prejudice resulted from the procedures given that the defendant was already in custody on the new convictions.

criminal lawprocedure

The case involved a defendant originally charged with armed robbery who, after revocation of youthful trainee status, was convicted by a jury of two counts of unarmed robbery. The defendant argued on appeal that the trial court erred by refusing to instruct the jury on the lesser included offense of larceny from the person despite the defense raising the issue during discussions about jury instructions. The court held that larceny from the person is a necessarily included lesser offense of armed robbery under Michigan precedent, and that the defense counsel's inquiry, combined with the court's decision to instruct on other lesser offenses, sufficiently put the trial court on notice that the instruction should have been given. It was reversible error to deny the request once the prosecution had obtained instructions on other lesser offenses. The court vacated the convictions and remanded for entry of judgment on larceny from the person or, alternatively, a new trial.

criminal lawprocedure

This case involved a paternity action under the Michigan Paternity Act in which a jury found defendant to be the father of plaintiff's child, leading to a support order. Defendant appealed the trial court's denial of his request to call an unlisted rebuttal witness, arguing that the witness-list exchange rule did not apply to paternity cases or that exclusion was improper. The court held that GCR 1963, 301.10 applies to paternity proceedings because it does not conflict with the Paternity Act's provisions on testimony or alibi notice. However, the court concluded that excluding the rebuttal witness was an abuse of discretion, as the witness was needed to counter surprise testimony and the trial court could have limited the scope of the testimony instead of barring it entirely, resulting in reversal and remand.

family lawprocedure

This case concerned an attorney who was ordered to repay $2,500 to the parents of a deceased man after distributing proceeds from a wrongful death settlement in a manner inconsistent with the probate court's prior order. The probate court, affirmed by the circuit court, credited the parents' testimony that no unwritten agreement altered the required shares and found the attorney had a duty to follow the court's distribution order rather than relying on a disputed private arrangement. The appeals court upheld the surcharge under court rule PCR 908.4, which permits summary jurisdiction to order an attorney to pay money when law and justice require it to remedy injury to clients from an improper distribution of estate assets.

procedureproperty

This case involved a workers' compensation claim by plaintiff Nunn against her former employer, George A. Cantrick Co., for partial disability benefits stemming from upper extremity pain allegedly caused by her job as a stock roller and cutter from 1973 to 1976. A hearing referee denied benefits after finding she had not met her burden of proof, but the Workers' Compensation Appeal Board (WCAB) unanimously reversed, crediting her testimony and one doctor's diagnosis over conflicting evidence and awarding continuing partial disability benefits. Defendants appealed, arguing that the WCAB's brief opinion violated constitutional provisions requiring meaningful judicial review by failing to adequately explain its reasoning. The Court of Appeals affirmed the WCAB, holding that the opinion sufficiently summarized the evidence, identified the legal standards applied (including that credible claimant testimony can support a disability finding), and enabled effective appellate scrutiny under the state constitution and relevant statutes.

labor & employmentprocedure

The case involved defendant Michael Turner's appeal from his conviction after a bench trial of criminal sexual conduct in the second degree against an eight-year-old complainant. Turner challenged the admission of a police officer's testimony recounting the child's out-of-court statements under the tender years hearsay exception, the trial court's factual findings regarding statements made to the mother, and a brief reference by the officer to prior similar acts. The Michigan Court of Appeals affirmed the conviction, holding that the tender years exception remains viable in sexual abuse cases as a form of the res gestae exception under the Michigan Rules of Evidence, that the complainant's in-court testimony satisfied confrontation requirements, that the findings of fact were supported by the record, and that the improper reference to prior acts did not prejudice the defendant in a bench trial where the judge sustained the objection and did not rely on the testimony.

criminal lawprocedure

The case involved defendant Andre Alexander's jury conviction for assault on a prison guard in violation of Michigan law, for which he received a sentence of two to four years. On appeal, the court affirmed the conviction after reviewing claims regarding the exclusion of certain administrative reports, the opportunity for allocution at sentencing, and the trial judge's questioning of the jury. Although the trial court invoked the best evidence rule incorrectly, the reports were properly excluded because they were limited to impeachment use and could not be introduced as exhibits. The record showed that the defendant received a full opportunity to allocute and respond to presentence report contents, and the judge's questions to the jury did not improperly inquire into verdict deliberations.

criminal lawprocedure

The case involved a defendant convicted by a jury of manslaughter and felony-firearm possession after he shot and killed an intruder who had forcibly broken into his girlfriend's home following an earlier altercation. The court reversed the convictions and remanded for a new trial. It ruled that the jury instructions were erroneous because they required proof of a separate assault by the intruder after entry to justify self-defense, whereas Michigan law permits deadly force to repel a forcible entry if the occupant reasonably fears death or great bodily harm and has no alternative. The court also found reversible error in the trial judge's failure to instruct the jury that prior inconsistent statements admitted only for impeachment could not be used as substantive evidence of guilt, particularly after the prosecutor suggested otherwise during closing argument.

criminal lawguns