High Court Offers Supreme View

The Michigan Supreme Court and State Bar of Michigan recently teamed up to create a virtual courtroom. Now, oral arguments and administrative hearings can be viewed by anyone with internet access at http://www.michbar.org/courts/virtualcourt.cfm.

Summarizing the driving force behind the virtual program, Chief justice Kelly said that it creates openness and transparency. “In a digital age, the public increasingly expects not only physical access, but also virtual access, to government. With this expansion of the Court’s online presence, viewers will need only an Internet connection to watch the Court at work,” she said.

In addition to allowing the public to see what goes on at the Hall of Justice, the program also provides a benefit to appellate practitioners. Although presenting argument before seven Justices can be intimidating, the opportunity for practitioners to view prior arguments heard by the Court offers a unique learning experience.

On the other hand, the ability to watch arguments with the click of a mouse does have one significant drawback: it will now be easier to play "Monday Morning Quarterback." Since the arguments will be posted 24 to 48 hours after they are heard, any party who argues a case can easily--at times painfully--dissect his argument without paying twenty-five dollars to order a DVD copy of argument.

Despite the obvious and inevitable pain of one-click argument review, the ease in doing so is likely to cause more attorneys to evaluate their performance in order to improve their advocacy skills. In the long-run, there is no question that the virtual court will have the added and maybe unintended side-effect of improving oral advocacy in Michigan's appellate courts.

In re Hansen: Questioning the Question Presented– Another Preservation Pitfall

In a published opinion, In re Hansen, the Court of Appeals affirmed the termination of respondent’s parental rights despite the fact that the trial court applied a best interest standard that was replaced by legislation effective in July 2008. The COA concluded that application of the out-dated and oft misunderstood “contrary to the best interest” of the minor child standard, although erroneous, yielded the correct result because a statutory ground for termination had been met and the child could not be left in limbo while waiting for her father to be released from prison.

Presumably, this opinion was published, unlike most termination cases, to clarify that the trial courts should apply the statutory standard prescribed by the legislature in July 2008, requiring the trial courts to find that both a statutory ground for termination has been met and that termination is in the best interest of the child. Notably, the statute itself clarifies this legal issue and the case did not construe the statute, nor did it present application of the new statutory language to a unique set of facts. Seemingly, the case does not fit the criteria for publication under MCR 7.215(B).

In reaching the right result, the COA noted that the appellate counsel failed to preserve the best interest issue because the issue, although briefed, was not properly phrased in Appellant’s questions presented. For this proposition, the COA cited a case that has become the nemesis of appellate attorneys across the state, People v Yarbrough (“an issue is not preserved for appeal if it is not raised in appellant’s statement of questions presented”). Although the COA addressed the issue anyway, the very idea that an appellant could lose review of an issue that could impact the care and custody of his minor child for failing to properly phrase a question presented is frightening to say the least.

Even though Yarbrough pronounces that an issue is unpreserved if it is not stated in a question presented, it does so without citing to a court rule, or Michigan Supreme Court case addressing the reasoning for disposing of an issue that has been briefed simply because the question presented is imprudently phrased. As any appellate practitioner knows, the rule providing for a brief’s contents is MCR 7.212(C). Under this rule an appellant is required to provide within an appellant’s brief a statement of questions involved, “stating concisely and without repetition the questions involved in the appeal.” Nowhere in this rule is there a directive that failing to do so will result in a finding that the issue has been unpreserved and will not be reviewed on appeal. The rule includes provisions regarding the requirement of a jurisdictional statement, table of contents, index of authorities, and statement of facts.

However, when any of these other sections are inadvertently omitted or improperly executed, appellant’s counsel is faced with a defect letter providing an opportunity to cure the defect before the appeal is dismissed or an issue is waived. It doesn’t follow then, that failing to properly execute questions presented, also contained within MCR 7.212(C), would not be met with the same defect letter instead of an essentially unreviewable conclusion that the issue, although properly objected to in the trial court an properly briefed, is unpreserved.

Certainly In re Hansen is not the first case, and won’t be the last, citing Yarbrough to hold that an issue is “unpreserved.” The impact of this finding varies greatly from case to case. This issue prompts several questions: (1) How concise can a question presented realistically be if an issue can be rendered unpreserved when it is too concise? (2) If the issue is properly briefed and contains a proper standard of review, isn’t the failure to raise it in the question presented harmless? (3) Does the punishment of rendering an issue “unpreserved” properly address the actual harm or inconvenience actually caused by the improper phrasing of a question presented?

Despite the numerous concerns presented by this situation, one thing is clear: if the question presented problem is going to continue to be applied in a manner that renders issues unpreserved and therefore, unreviewed, appellate practitioners may need some guidance to avoid a preservation pitfall.

COA Prescribes Dose of Civil Liability for Mute Medics

Have you ever wondered whether mandatory reporters will really be held to have civil liability if they fail to report suspected child abuse? The Court of Appeals addressed this issue in the Estate of Rufus Young JR. v Detroit Medical Center and Children's Hospital, et al. In this case, a doctor failed to report suspected child abuse where the child, who had a history of abuse, exhibited bruising during examination. The doctor said that he did not report suspected abuse because the explanation of the foster mother seemed sincere and she was genuinely concerned. Sadly, the child was murdered a short time later after suffering 11 blows to the head at the hands of his foster dad. The personal representative of the child’s estate sued the doctor and hospital. The physician was sued under a theory of ordinary negligence for his failure to follow the mandatory reporting statutes, MCL 722.623 and MCL 722.622. The hospital was sued on the basis of vicarious liability.

The Defendants filed Motions for Summary arguing that Plaintiff should have brought a medical malpractice claim and that the hospital could not be vicariously liable where the statute provided that only the person failing to report was liable. The Trial Court granted the physician's motion but denied DMC's motion.

On appeal, the COA held that summary was inappropriately granted because the doctor is liable for failing to report as a mandatory reporter under the statute and that such a claim can be brought under ordinary negligence. The COA reasoned that identifying suspected child abuse does not require expert medical knowledge as demonstrated by the fact that the statute specifically identifies mandatory reporters who are not medical professionals.

Additionally, the COA opined that imposing civil liability on doctors is consistent with purpose of child welfare law because it encourages medical professionals to be vigilant and take an active role in reporting suspected abuse. The COA further held that the hospital could be vicariously liable because the common-law doctrine of vicarious liability is not abrogated simply because the statute specifically imposes liability on the non-reporter. The Court noted, “such a doctrine cannot be abolished by implication.”

The bottom line is that there is a reason the Legislature listed “mandatory” reporters, not “suggested” reporters—it’s a duty that should be taken seriously no matter who you’re insured by. Given that this is a highly contested issue (see Dissent), the prognosis for further appellate action looks good--stay tuned.

Court of Appeals Spoils Plaintiff’s Cause of Action-Davis Dissents

In Teel v Allstate Insurance, __Mich App__; __NW2d___ (2009), the Court of Appeals held that Michigan does not recognize a cause of action for spoliation of evidence. In Teel, Plaintiff lost his wife in an apartment fire. While he was in the hospital recovering, Plaintiff’s landlord permitted an Allstate Insurance Co. representative into the apartment. Contrary to statute, Plaintiff did not receive notice that the inspector would be allowed into the apartment. During the inspection, the investigator removed items from the apartment and altered the scene. Plaintiff alleged that these actions resulted in spoliation of evidence of the fire’s origin and resulted in hindering Plaintiff’s ability to succeed in litigation against the landlord relating to the fire. The trial court granted summary disposition in favor of Defendant, holding that plaintiff failed to state a claim under which relief could be granted because Michigan did not permit a cause of action for spoliation of evidence.

The Court of Appeals agreed. The court reasoned that such a cause of action has not been recognized in Michigan. Additionally, that the courts have no business developing such a cause of action because doing so would require defining the scope of the duty to preserve evidence. Noting that the Legislature has comprehensive Legislation addressing the insurance industry, including more than 1,000 sections in the insurance code evidences the Legislature’s intent to provide for and regulate the rights and remedies available to the public concerning business in the insurance arena. Alternatively, the court reasoned that even if there were such a cause of action in this state, it would be inapplicable in Teel because the Plaintiff failed to show that there were no other remedies available (citing criminal contempt as an example).

Judge Davis disagreed. In his dissent, Judge Davis framed the case as one calling for the court to fashion a remedy–not create an entirely new cause of action. Davis stated, “Although the cases in Michigan have, thus far, only addressed spoliation of evidence by litigants, spoliation of evidence is nevertheless recognized as a legally wrongful act. In other words, there is already a well-established right in Michigan of a litigant to the integrity of evidence in a lawsuit. It follows that the courts are not only empowered, but obligated to provide a remedy for violations of that right.” It is too soon to tell whether the Supreme Court will weigh-in on the battle of rights versus remedies.