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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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The shake-up in the Michigan Supreme Court’s makeup last year has produced some interesting results, especially in its criminal docket. Justice Elizabeth Welch, who was elected alongside Chief Justice Bridget McCormack in 2020, replaced the long-serving Justice Stephen Markman in January 2021. Her ascension to the bench tipped the court’s balance in a historical way; it marked the first time in over a decade that women made up the majority of sitting justices on the Michigan Supreme Court, and this term will be only the second full term in the court's history with a female majority. With a new court comes new trends, and there already appears to be a difference in the number and type of opinions it issued last year.

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A Downturn in Criminal Opinions and Unanimity

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While the court issued slightly more opinions in 2021 compared to the previous year (likely as a result of the pandemic shutting down oral arguments in the spring of 2020), the number of criminal decisions noticeably dropped. The court decided 28 cases via an opinion in 2020, 12 of which involved criminal appeals. In contrast, 2021 produced 32 opinions in total, but only nine resolved criminal issues. This shows a downward slide from criminal appeals making up 43% of the court’s opinions in 2020 to only 28% in 2021.

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The change in the court’s membership also appears to have impacted the voting patterns in its criminal opinions. Only three criminal appeals resulted in a unanimous opinion from the court in 2021 — a sharp decline from 2020, which produced six unanimous criminal opinions. And 50% of the court’s criminal opinions in 2020 were unanimous, compared to just 33% in 2021.

In People v. Washington, (2021) (Docket No. 160707), a case involving subject matter jurisdiction, Justice Welch joined Justices David Viviano and Brian Zahra in dissent. She joined Justices Viviano and Zahra again, along with Justice Richard Bernstein, to form a majority in People v. Arnold, (2021) (Docket No. 160046), to resolve confusion in sentencing for indecent-exposure offenses. Meanwhile, People v. Magnant, (2021) (Docket No. 159371), Justice Welch’s first authored criminal opinion — addressing the illegal transportation of cigarettes — was supported by the votes of Chief Justice McCormack and Justices Bernstein and Elizabeth Clement.

Will these trends continue? We’ll have to wait and see. Like it was for many of us, 2021 may have been an anomaly; the four most recent criminal opinions issued by the court over the past three months have all been unanimous. However, since the justices typically hold on to their most contested opinions until July, only time will tell what 2022 really has in store for this new court.

The Court’s Major Criminal Decisions in 2021

Despite the slight shrink in the court’s criminal docket in 2021, it still managed to issue a few major decisions. Most notable was&nbsp;People v. Betts, 507 Mich 527 (2021). There, in a decision authored by Justice Clement, the court held that the former version of the Sex Offenders Registration Act could not be retroactively applied to individuals whose last registrable offense was committed before the statute was amended in 2011. To do so would violate the constitutional prohibition on ex post facto punishment, the court ruled.

A Supreme Court term wouldn’t be complete without a Fourth Amendment decision, and the court did not disappoint on this front. In&nbsp;People v. Pagano, 507 Mich 26 (2021), the court further defined the reasonable suspicion that allows police to stop a suspected drunk driver. The defendant in that case had been pulled over after an anonymous 911 caller reported that she appeared to be “obnoxious” and “intoxicated” in a parking lot before driving away. In an opinion authored by Justice Bernstein with no dissents, the court held that the anonymous tip did not give rise to a reasonable and articulable suspicion that the defendant was intoxicated. “[T]here is no support for the conclusion that ‘appearing to be obnoxious’ and yelling at one’s children creates a reasonable and articulable suspicion that one is intoxicated,” the court explained. A conclusory allegation of drunk driving, the court reaffirmed, is not enough to pass constitutional muster.

Finally, the court had a chance to decide the remedy for the erroneous denial of a defendant’s peremptory challenge to a prospective juror. But an equally divided court in&nbsp;People v. Kabongo, 507 Mich 78 (2021), could not agree on the right answer.&nbsp;Kabongo&nbsp;involved a&nbsp;Batson&nbsp;challenge, referring to the United States Supreme Court’s ruling in&nbsp;Batson v. Kentucky, 476 US 79 (1986), that a prospective juror cannot be removed solely because of their race. When the defendant in&nbsp;Kabongo&nbsp;tried to strike a prospective juror with ties to law enforcement, the prosecution objected on&nbsp;Batson&nbsp;grounds. The trial court sustained the prosecution’s challenge, but the Michigan Supreme Court agreed that this was wrong. The justices were divided, however, on the appropriate remedy for that error. Justices Zahra, Viviano and Clement would have held that it is subject to harmless-error review. Chief Justice McCormack and Justices Bernstein and Megan Cavanagh, on the other hand, concluded that automatic reversal is the appropriate remedy. Justice Welch did not participate, since the case was argued before she assumed office.&nbsp;Kabongo&nbsp;kicked the remedy question down the road for a future court to take up. And it was the second time the court could not reach an answer on this precise issue; it had been addressed in&nbsp;People v. Bell, 473 Mich 275 (2005), but the court failed to whip up four votes to decisively resolve it in that case. Maybe the third time will be the charm.

In addition to the important decisions in 2021, this year promises further interesting developments. In a slew of cases argued in March, People v. Stovall, No. 162425, People v. Poole, No. 161529, People v. Parks, No. 162086, and People v. Taylor, No. 154994 (briefed and argued by Warner Norcross + Judd’s Conor Dugan), the Supreme Court again addressed the implications of the United States Supreme Court’s ruling in Miller v. Alabama, 567 US 460 (2012). Miller held that mandatory life without parole sentences for juveniles are barred by the Eighth Amendment. Michigan trial courts have struggled applying Miller’s mitigating factors when sentencing juveniles. Among other things, the March cases raised questions of Miller’s application to young adults (18-25 year-olds) and whether the prosecution should bear the burden of proof for establishing whether a sentence of life without parole is warranted for a juvenile.

If you have any questions or would like to learn more about Warner’s appellate, criminal or litigation practices, please contact Madelaine Lane, Ashley Yuill or your Warner attorney.

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Ashley Yuill

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Following a New Michigan Supreme Court

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Following a New Michigan Supreme Court

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