The Michigan Constitution Podcast

This week the Michigan Supreme Court ruled on one case Miller, Miller & Whitman vs. MI Department of Corrections (DOC). In a 7-0 decision, the Supremes determined that a third-party can bring a retaliatory claim, pursuant to the Michigan Civil Rights Act (MCRA) alleging they were improperly fired for being friends with a co-worker who had brought a different MCRA case against the DOC.

This week the Michigan Supreme Court ruled on two different cases: Insurance Companies vs. the Livingston County Road Commission and Long Lake Twp. v. Todd & Heather Maxon.

The crux of the insurance companies versus the Livingston County Road Commission implicated both the Michigan Freedom of Information Act (FOIA) and Attorney-Client Privilege.

In the “Long Lake Twp” case, the Michigan Supreme Court had to determine whether or not the use of a drone over a person’s real estate, without a warrant, was an unreasonable search.

In this one-off podcast we discuss cases I want to talk about.

City of Warren v. MI State Construction Code Commission–Can the Michigan Legislature delegate is legislative making decision to an unelected board? That’s the power given to the MI Construction Code Commission when they adopt the construction codes to be used and enforced within the entire State of Michigan. But is that a power that Michigan Legislature should be required to implement?

McGoldrick v. Holiday Amusement–Is it negligent for a ski resort to place tension wires necessary for tow ropes in areas where skiers might ski into them? What level of protection does a ski resort have against personal injury lawsuits?

Richards v. Boyne USA–What level of responsibility does a ski instructor have to their “newbie” skiers? Can a skier waive their right to sue a ski resort when the skier injures themself? Does it matter if the injury was a result of the ski instructor’s negligence?

In this one-off podcast, we discuss ordinances and how they impact daily life.

County of Marquette v. Northern Michigan University–Does the Michigan Construction Codes govern how student dormitories are to be constructed?

Capital Region Airport Authority v. Charter Twp of DeWitt–Must the local airport comply with township ordinances when it wants to build buildings on its land?

Burt Twp. v. MI Dept of Natural Resources–When the Department wants to build a dock for public uses, does the State have to comply with the local’s ordinance?

Daley v. Twp of Chesterfield–Who decides if a garage violates the township’s ordinance? Will it be the local construction board who oversees the construction of garage or will it be the local zoning board tasked with enforcing the township’s ordinances?

Premise liability is the number one money-maker for slip & fall lawyers. Fortunately in Michigan, there is something called the “Open & Obvious” doctrine which is used to help get lawsuit-happy litigants out of our court system. In this one-off podcast, we will discuss what it means and how certain statutes, regulations and codes can play a factor in helping us to determine whether the Open & Obvious doctrine applies.

From time-to-time, I will produce what I will call “One-Off” podcasts, which don’t really address the provisions of the Michigan Constitution…but instead, are cases I think you (the listener) might find interesting to learn about. This podcast is one such case. We’re going to get into the idea of a “Public Duty Doctrine” which is when a police officer will not be held liable for the crimes committed against another person. The theory here is that the police can’t be on the hook for crimes committed by a 3rd party against the victim. The other area of law we will discuss is the governmental immunity doctrine, which gives governmental employees liability protections for actions they did (or did not) take, while performing their responsibilities.

We will continue our conversation about the Right to Bail. In particular, we’ll discuss:

§ 16 Bail; fines; punishments; detention of witnesses.
Excessive bail shall not be required; excessive fines shall not be imposed; cruel or unusual punishment shall not be inflicted; nor shall witnesses be unreasonably detained.

There’s been a lot of chatter about the notion of Bail Reform. Realistically, bail doesn’t need to be reformed, certainly not in the State of Michigan. But my guess is most people championing for this “solution in search of a problem” don’t understand how bail actually works. We’ll discuss that in great deal. But here’s a primer:

So what is bail? What’s its purpose and why is “Bail Reform” getting all the press attention these days? To being, and simply put: The primary purpose of offering bail is BOTH to ensure that the defendant appears in court, while also ensuring the safety of the public.

At the defendant’s first appearance before the court, the judge must order that the defendant be held in custody or released on bail. You are “bailed out of jail” with the posting of a financial security, or, in laymen’s terms: posting bond. There are three types of bail for which a bond is required: cash bail (which just means posting 10 percent of that dollar amount), there’s secured bail, and finally, there’s unsecured bail (a/k/a personal recognizance). Complete denial of any bail is permitted only under certain circumstances, discussed in just a bit.

So how does this usually work, you wonder? If the defendant is going to be released while her trial is pending, the court must determine whether or not she will be released on her own recognizance or whether bail will be required. And, if bail is going to be required, the judge must establish an amount of bail the defendant must provide. Generally, the court will order release on a personal recognizance. Alternatively, the court could make specific findings in order to impose conditions on release and thusly order the release of the defendant on money bail. Or, if the court determines for reasons it states on the record that the defendant’s appearance or the protection of the public cannot be otherwise assured, complete denial of bail may be ordered by the Judge.

PERSONAL RECOGNIZANCE

If the defendant is not ordered to be held in custody, the court can order the release of the defendant on her own personal recognizance, with the understanding that the defendant will appear as required to each court hearing, that she will not leave the state without permission of the court, and she will not commit any crime while released.

CONDITIONAL RELEASE

If the court determines that a release on personal recognizance will not reasonably ensure the appearance of the defendant as required, or will not reasonably ensure the safety of the public, then the court may order a pretrial release of the defendant on the condition or combination of conditions that the court determines are appropriate. What are some of those conditions, you may wonder? Think things like: checking in with a probation agent, not using legal or illegal substances such as alcohol and marijuana, obtaining employment, attending treatment programs for dependency, those sort of requirements.

MONEY BAIL

If the court determines for reasons it states on the record that the defendant’s appearance or the protection of the public cannot be otherwise assured, money bail, with or without conditions, may be required.  When setting money bail, the court must recognize that there is a constitutional mandate excessive bail shall not be required. Money bail is deemed “excessive” if it is in an amount greater than reasonably necessary to adequately assure that the accused will appear when her presence is required. The court in fixing the amount of the bail shall consider and make findings on the record as to each of the following:

(a) The seriousness of the offense charged.

(b) The protection of the public.

(c) The previous criminal record and the dangerousness of the person accused.

(d) The probability or improbability of the person accused appearing at future court proceedings.

Michigan Constitution/Article 1/Section 15: Double jeopardy; bailable offenses; commencement of trial if bail denied; bail hearing; effective date.

We’re finally bringing this topic in for closure. But before we do, we have a few more critical cases which we need to discuss.

Michigan Constitution/Article 1/Section 15: Double jeopardy; bailable offenses; commencement of trial if bail denied; bail hearing; effective date.

As continue to delve deeper into our right to finality from a criminal trial, we start to look at aspects where multiple jurisdictions bring criminal charges, despite the criminal action occurring (arguably) in only one place. We will also discuss the power a trial court judge has in a criminal case and why WHO YOU VOTE FOR MATTERS for trial court judges. Lastly, we’ll wrap up the podcast by discussing whether a County Prosecutor can bring state law criminal charges against a Defendant, only to have the State bring actions against that Defendant, as well!