Monday, July 13, 2009

Availability of Opinions

The full text of all of the opinions cited in our blog are available at the Supreme Court and Court of Appeals websites. The links for both are listed in the column on the right.

COA Rules for Plaintiff in Civil Rights Act Case

The Michigan Court of Appeals recently issued a published opinion dealing with Michigan’s Civil Rights Act that could have significant impact on the availability of certain causes of action not confined only to the prisoner/jailer relationship. In Hamed v Wayne County Plaintiff was in custody of Wayne County deputy sheriffs who transported her to Wayne County Jail. Deputy Johnson was alone on duty in the male registry area of the jail. Jail regulations required attendance of a female deputy in the presence of female inmates. However, upon being contacted, Sgt. Dawash permitted the deputies to leave plaintiff alone with Johnson.
The Plaintiff alleged that Johnson subjected her to unwanted sexual conduct in circumstances that suggested that her treatment as an inmate would depend on whether she submitted to that conduct. Johnson then directed her into a private office where he sexually assaulted plaintiff. Johnson was subsequently convicted of criminal sexual conduct.
The trial court erred in granting summary disposition for defendants in this case arising from violations of Michigan Civil Rights Act (“CRA”) on the ground that defendant Wayne County’s employee acted outside the scope of his authority when he sexually assaulted the plaintiff. The court of appeals held that strict vicarious liability for employers is applicable in quid pro quo sexual harassment arising from the provision of public accommodations and public services, when the harassment consists of a sexual assault.
The Plaintiff claimed that Wayne County was liable for Johnson’s actions under the theory of respondeat superior. However, the trial court granted summary disposition for defendants with respect to plaintiff’s claims for quid-pro-quo sexual harassment on the ground that Johnson acted outside the scope of his authority when he sexually assaulted the plaintiff and thus Wayne County and the department could not be found liable under a theory of respondeat superior
A plaintiff claiming quid-pro-quo harassment in the context of public accommodations must show that the provider of those services or accommodations, or the provider’s agent, used her submission to, or rejection of, the unwanted conduct as a factor in a decision affecting the plaintiff’s access to the public or accommodations.
In Champion v Nation Wide Security, 450 Mich 702 (1996), the Supreme Court adopted the view that imposes strict liability on employers for quid-pro-quo sexual harassment committed by supervisory personnel. The Court held that a supervisor’s sexual assault of a subordinate employee is a form of quid-pro-quo sexual harassment, and that the employer is strictly liable for the supervisor’s conduct only where the assault is accomplished through the use of the supervisor’s managerial, or supervisory powers.
The court held that the strict liability analysis of Champion was applicable to the circumstances presented in this case, finding that Johnson did not merely use his position to find opportunities to commit a sexual assault against plaintiff, rather he used his authority as a turnkey to exploit her sexually. Therefore, plaintiff’s amended complaint plead facts sufficient to support a claim that Johnson’s managerial authority was instrumental and integral tool in perpetrating the sexual assault.
Submitted by Andy Dragovic, Associate Attorney,
Flood, Lanctot, Connor & Stablein, PLLC

Monday, July 6, 2009

MSC is Balanced in Borgne and Shafier Opinions

On July 1, 2009, the Michigan Supreme Court issued two separate but intertwined opinions dealing with the issue of whether prosecutors can use a criminal defendant's post-arrest, post-Miranda silence as evidence in the prosecution's case-in-chief or as impeachment of the defendant should he provide exculpatory testimony in defense of the charges. In People v Shafier and People v Borgne, Justice Michael F. Cavanagh, writing for the majority (Justice Marilyn Kelly concurring), reached opposite results on what at first blush may seem to be identical cases.

In Shafier, the defendant was convicted of two counts of Second Degree Criminal Sexual Conduct based upon the allegations of his 13 year-old adopted daughter. The jury acquitted him of three additional counts of First Degree Criminal Sexual Conduct. Once the allegation was made, the defendant was immediately arrested and Mirandized. When he was first confronted by the arresting officer about the allegations, the defendant chose to "keep his mouth shut" because he was "shocked and didn't know what to say" and wanted "to wait and talk to somebody." The prosecutor used the fact of the defendant's silence "pervasively" in the trial - in his opening, direct examination of the arresting officer, cross examination of the defendant and his closing argument. The Court found, rather easily, that the State's use of the post-arrest silence violated the defendant's due process rights pursuant to Doyle v Ohio, 426 US 610 (1976). The issue became, however, because the error was unpreserved at the trial, whether it was "plain error" under the Carines standard. The Court held that it was. The trial was a close credibility question between the defendant and the complainant, the evidence was not overwhelming (the jury acquitted defendant of the most serious offenses) and the outcome "seriously affected the fairness, integrity or public reputation of a judicial proceeding." The Court affirmed the Court of Appeals' decision to reverse the defendant's conviction.

In Borgne, however, the Court reversed the Court of Appeals' decision reversing the defendant's convictions of armed robbery and felony firearm. The victim was pumping gas when she was approached by a man who grabbed her and demanded her purse. He showed a gun and the victim gave the man her purse. She then began screaming that she had been robbed and enlisted the help of bystanders to chase the man. When the police arrived, one of her helpers showed the police an abandoned warehouse. The police went in and found the defendant hiding in a corner. As soon as they exited the building, the victim exclaimed, "That's him, that's the man that robbed me!"

At trial, the defendant testified he was hiding in the building because he had heard gunshots and was afraid of being shot at. On cross, the prosecutor asked the defendant whether he had said anything about this sotry to the police when he was arrested. the defendant stated he had tried to but they put him into the back of the patrol car without listening to him. The prosecutor pressed further and asked about the defendant's further silence about the incident at the police station after he had been Mirandized. The defendant, without objection from his counsel, testified that he told the officer he wanted to wait for a lawyer to help him in the matter before he answered any questions. The prosecutor then utilized the defendant's silence at the station in his summation, arguing that a year has gone by and the defendant had told no one about the story of someone shooting at him.

Though the facts appear similar in both cases, the Supreme Court, again Justice Cavanagh, concluded the Court of Appeals erred in reversing the defendant's convictions. The Court decided against the defendant primarily on the fact that the case against the defendant was overwhelming and that the prosecutor's use of his silence, though a constitutional violation, did rise to the level necessary to satisfy the prongs of the plain error analysis under Carines. However, the Court did have this to say about the prosecutor: "It is, nevertheless, important to make clear that the prosecutor's violation of Doyle in this case is not taken lightly....To be clear, the prosecutor has not won this appeal; rather, the defendant has lost it because he has not proven that the Doyle violation entitles him to a new trial under the plain error doctrine."

Thursday, July 2, 2009

The New Michigan Supreme Court Blog Begins Today

Daily, the Michigan Supreme Court and the Michigan Court of Appeals issue opinions that have a significant impact on the legal community, the business community, schools, government and society in general. It is our hope to provide one central location to afford the oportunity for all to discuss the decisions of Michigan's courts and for us to hopefully simplify and make the decisions easier to understand for the general public. We will present the issues decided, prognosticate on what impact the decision will have and generally discuss the goings on at Michigan's highest courts. We hope this site will provide everyone with informative and valuable insight into the sometimes mysterious high courts. Welcome.