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In a case of first impression that has brought Michigan national attention, the Court of Appeals affirmed Ingham County Circuit Court's (Judge Collette) decision that rendered Michigan's new election law unconstitutional. The State of Michigan brought Grebner v State of Michigan as an emergency appeal and the Court issued its opinion on November 16, 2007 (Judges Meter and Owen in the majority, Judge Whitbeck dissenting).

The State's appeal presented the narrow question to the Court of whether voter lists were "public property being used for private purposes" because the Act required the Secretary of State to provide the lists of the names of persons who voted in the Presidential primary and whether they voted in the Democrat or Republican primary. Chief Judge Whitbeck noted in his dissenting opinion that the reasons this narrow and tangential issue has reached the forefront of the State's attention is because, when the Legislature enacted the law, it included a non-severability clause, which means that if any part of the Act is unconstitutional, then the entire act falls, including the portion of the Act which changed Michigan's election primary date for this year's presidential primary election to January 2008.

According to the Michigan Constitution, "The assent of two-third of the members elected to and serving in each house of the legislature shall be required for the appropriation of public money or property for local or private purposes." The Legislature did not garner a 2/3rds vote to appropriate State funds for the purpose of distributing the voter lists to the two major political parties. The majority and dissent disagreed as to whether distributing the list was "for a private purpose."

It remains to be seen whether the Legislature will be able to fix the Act in time for Michigan to hold a presidential primary election, or whether the Michigan Supreme Court will take issue with the Court of Appeals' majority decision. Either way, time will tell...and soon. [NOTE: The Supreme Court reversed the COA's decision on November 21, 2007, in a 4-3 vote. Click here for the Supreme Court order].

Labels: Election Law, Ingham County, Michigan, Presidential Primary

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The Court of Appeals recently decided that a man could bring a hostile work environment claim based on the conduct of another male co-worker in Robinson v Ford Motor Co (published on 10/30/07). In Robinson, a co-worker/defendant at Ford Motor Company described his conduct as sexual horseplay by a heterosexual male. This “sexual horseplay” included slapping plaintiff on his buttocks, pinching his nipples, exposing his testicles to another co-worker while grasping plaintiff’s hand and attempting to make plaintiff touch them. You'll have to read the opinion for more of the salacious details.

First, the Court of Appeals held that plaintiff’s same-gender hostile work environment claim is cognizable under the Civil Rights Act. The Court relied on the United States Supreme Court's decision in Oncale v Sundowner Offshore Servs, 523 US 75, 80 (1998), that interpreted an identical phrase found in CRA. In reaching the decision in Robinson, the Court unequivocally held that the defendant's conduct was of a “sexual nature.” The term of “sexual nature” does not limit behavior pertaining to “sexual relations.” The Court held that when the perpetrator is heterosexual and member of the same sex, the conduct does not have to involve homosexual advances or sexual desires. The conduct in Robinson was of a sexual nature because it involved “direct contact with sexual organs or sexual parts of the body accompanied by either express or implied references to sexual activity.”

Second, the Court remanded to the trial court because the trial court had not examined whether the harassment was “because of sex” (which is an element of a sex discrimination claim, but not an element of the hostile work environment claim). Oncale provided sample avenues of showing discrimination was “because of sex”: (1) the harasser made sexual advances out of sexual desire, (2) the harasser is motivated by general hostility to the presence of men in the workplace, (3) the plaintiff offers ‘direct comparative evidence’ about how the alleged harasser treated members of both sexes in a mixed-sex workplace.

If a plaintiff like the one in Robinson could show that the harasser treated men differently than woman (in order to establish “because of sex”) then what happens to the pervert who is an equal opportunity harasser against men and women? Is his employer immune from liability for its employee's lewd acts at the workplace unless the victims can show he is bi-sexual and had sexual desire for both men and women?

Labels: Ford Motor Company, Hostile work environment, Michigan, Sexual horseplay, Wayne County

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On August 9, 2007, the Michigan Court of Appeals released an unpublished opinion reversing an order terminating parental rights. In re Engle, unpublished per curiam opinion of the Michigan Court of Appeals, released August 9, 2007 (Docket No. 275064). Since reversals of termination cases are few and far between we immediately blogged the case (see blog entry "It is Possible! COA reverses TPR case" dated August 17, 2007). But just like Michigan summers, the reversal did not last. On November 2, 2007, the Michigan Supreme Court issued an order peremptorily reversing the Court of Appeals’ decision to reverse the termination and reinstating the order of the Oakland County Circuit Court terminating the biological mother’s parental rights.

In its order, the Court cited three reasons for peremptory reversal, stating that the COA: (1) misapplied the clear error standard by substituting its own judgment for that of the trial court, (2) failed to acknowledge that the applicable statutes and court rules do not require efforts for reunification or provision of services under the circumstances of the case, and (3) rendered a decision that was contrary to the clear and convincing evidence supporting the statutory grounds for termination and the best interests of the minor children. And so the Supreme Court has restored the trend affirming TPR cases....for now.

Labels: Michigan, Oakland County, Peremptory Reversal

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