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​Deborah Ross Adams, a Wayne County Circuit Court judge, was in divorce proceedings started by her husband, Anthony Adams, in September 2009. After the Wayne Circuit’s family court judges recused themselves from hearing the case, the case was transferred to the Oakland County Circuit’s family division in March 2010 and assigned to Judge Mary Ellen Brennan. Brennan set March 10, 2011 as the mediation deadline and March 21-22, 2011 as the trial date.

 

In February 2011, attorney Andra Dudley began representing Deborah Ross Adams; an “Exparte[sic] Motion for Entry of Order for Substitution of Counsel” was filed to allow Dudley to substitute for Ross Adams’ former counsel, Janice L. Burns. Although the motion was filed under Burns’ apparent signature, Burns denied signing and said that she never gave Ross Adams permission to sign Burns’ name to the motion.

 

On March 10, 2011, Ross Adams and her husband reached a settlement; Brennan scheduled a hearing for March 16 to place the divorce settlement terms on the record. On March 15, Ross Adams called Brennan’s office to request an adjournment. Brennan’s clerk, who was familiar with Ross Adams’ voice from other times she had called Brennan’s office during the divorce proceedings, told Ross Adams that she should contact her attorney about requesting an adjournment.

 

At the March 16 hearing, Brennan and Ross Adams had an exchange, during which Brennan told Ross Adams that she should not contact Brennan’s office directly, but have her attorney do so. Ross Adams made a number of statements, including denying that she called Brennan’s “chambers.” She also stated “I did not call anyone,” but later admitted speaking to one of Brennan’s staff on March 15. Brennan contacted the Judicial Tenure Commission about what had happened during the hearing, but did not file a request for investigation.

 

On April 7, attorney William M. Brukoff, who was representing Anthony Adams in the divorce, received a fax about the divorce settlement; although the fax purported to be from Dudley, the transmission came from a Wayne County Circuit Court fax machine. At an April 11, 2011 hearing, Brennan granted the judgment of divorce and also released Dudley from her representation of Ross Adams. Brennan also ordered Ross Adams – who did not attend the hearing – to either sign the settlement agreement or appear in court for a show cause hearing on April 14. Ross Adams had refused to sign the agreement, contending that it was not consistent with the settlement she had reached with her ex-husband. On April 26, Dudley sent Ross Adams an e-mail, stating, “If you want to preserve your appellate rights file a motion.”

 

On May 5, Ross Adams filed a motion to set aside or modify the divorce judgment; she signed Dudley’s name to the motion and related documents, but did not add “with permission” or otherwise indicate that she was signing on Dudley’s behalf. According to Dudley, she did not give Ross Adams permission to sign her name; Dudley said she only learned of the matter when Brukoff called her to discuss the motion. Dudley then e-mailed Ross Adams, stating “I did not receive any contact from you this week and hopefully you did not file any pleadings with my name without me first reviewing them and without my permission.” In reply, Ross Adams stated that she had tried to contact Dudley “to obtain permission to file a quick pleading on my behalf under your name.”

 

Brukoff and Dudley reported Ross Adams’ conduct to the Judicial Tenure Commission. Following an investigation, the JTC filed a formal complaint against Ross Adams, charging her with uttering and publishing, perjury, and forgery. The Supreme Court appointed a special master who held a five-day hearing in September 2012. The special master concluded that Ross Adams had lied under oath in Brennan’s court and made misrepresentations to the JTC during its investigation, including that she had permission to sign Dudley’s name to the May 5 motion. But the master said there was insufficient evidence that Ross Adams improperly signed Dudley’s name; he cited “confusion, mistrust, and eventual animosity” between the judge and her attorney.

 

The JTC, after reviewing the master’s report and the evidence, recommended to the Supreme Court that she be suspended without pay for 180 days; the JTC concluded that Ross Adams “knowingly signed another attorney’s name without permission, lied under oath, and made misrepresentations during the course of these proceedings in contravention of” the Michigan Rules of Professional Conduct, the Michigan Court Rules, and the Michigan Code of Judicial Conduct.” Among other matters, the JTC found that Ross Adams “could not possibly believe she had Ms. Dudley’s permission to sign”; Ross Adams said that she “tried … to obtain permission” only after she had already filed the motion under Dudley’s name. Ross Adams’ failure to add “with permission” or her own practice number “is a further tell-tale indication that [Ross Adams] harbored no belief that she had Ms. Dudley’s authorization to sign her name.”

 

The JTC agreed with the special master that Ross Adams made misrepresentations to the JTC during its investigation, including the number of times she contacted Brennan’s staff. Ross Adams also lied about having permission to sign Dudley’s name, and falsely claimed that she was not told not to contact Brennan’s staff while she was represented by an attorney, the JTC said. Moreover, Ross Adams lied under oath, saying that she “did not call [Judge Brennan’s] staff” when in fact she had, the JTC stated.

 

Ross Adams challenges the JTC’s findings, arguing in part that she was “prejudiced by the structural error of the JTC” when it charged her with felonies, such as perjury, as the basis for finding that she had violated ethics rules. The JTC lacks authority to charge a judge with felonies or to decide whether a judge has committed one, and Ross Adams was denied due process of law by being forced to defend herself against the felony charges, she maintains.

 

Ross Adams also argues that the JTC improperly coerced Dudley into breaching the attorney-client privilege, and that Dudley turned over confidential documents and communications without asking Ross Adams to waive the privilege. Both the master and the JTC erred by finding misconduct based on privileged communications, such as the April 26 e-mail in which Dudley advised Ross Adams to file a motion to preserve her appellate rights, Ross Adams contends.

 

As to the JTC’s finding that she lied under oath at the March 16, 2011 hearing, Ross Adams argues that she never intended to mislead the court. Ross Adams believed that Brennan was accusing her of trying to make an ex parte contact with Brennan herself; Ross Adams attempted to address that accusation by responding, “I didn’t call chambers directly.” She did not deny trying to contact Brennan’s staff to reschedule that hearing. Moreover, Ross Adams was under oath to assent to the terms of the divorce settlement; the exchange between Ross Adams and Brennan took place afterwards, Ross Adams contends. “This exchange, initiated by one judge against a grieving and stunned litigant simply doesn’t arise to the level of perjury.”

 

Ross Adams also urges the Supreme Court to accept the special master’s finding of insufficient evidence as to the claim that she improperly signed Dudley’s name. She also asks the Court to take into account her record of service as a judge.

 

In its brief, the JTC responded in part that it had not pressured Dudley, noting that Dudley contacted the JTC only after consulting the State Bar of Michigan’s ethics hotline and an attorney. At the hearing before the special master, Dudley testified that she believed she had a duty to report Ross Adams to the JTC and that she was not violating attorney-client privilege. Moreover, contrary to Ross Adams’ claim, Dudley did not turn over the entire divorce file; the e-mails and letters that Dudley did provide did not fall under the attorney-client privilege because they dealt only with scheduling and administrative matters, the JTC said.

Calendar Number: 7

Date: 04/11/13

Issue: A Detroit judge opposes the Judicial Tenure Commission’s proposal that she be suspended for 180 days without pay. The JTC alleges, among other matters, that the judge lied under oath to the JTC and forged her former divorce attorney’s signature on legal documents.

Attorney Information: ​

In the Matter of Honorable Deborah Ross Adams		Cyril C. Hall
3rd Judicial Circuit Court
BEFORE THE JUDICIAL TENURE COMMISSION		Paul J. Fischer

Briefs Information:

​Judicial Tenure Commission Recommendation

Respondent's Petition

Judicial Tenure Commission's Brief

Amicus Brief by MI District Judges Association 

Status: Not Started

MonthArgued: 4

Calendar Number: 2

Date: 11/14/12

Issue: At issue is whether the defendant insurance company is obligated to pay for a new van plus the cost of modifying the van to accommodate the injured plaintiff’s needs. The insurer argues that it is obligated to pay for the modifications only.

Display Order: 1

Attorney Information: ​

Kenneth Admire,		George T. Sinas
	Plaintiff-Appellee/Cross-Appellant,	Stephen H. Sinas
v	(Appeal from Ct of Appeals)
	(Ingham-Brown, T.)
Auto-Owners Insurance Company,		Kimberly A. Hillock
	Defendant-Appellant/Cross-Appellee.

Briefs Information:

Defendant-Appellant's Brief on Appeal

Plaintiff-Appellee's Brief on Appeal

Defendant-Appellant's Reply Brief

Amicus Brief - MI Catastrophic Claims Association

Amicus Brief - MI Insurance Coalition

Amicus Brief - Coalition Protecting Auto No-Fault

Amicus Brief - Auto Club's Concurrence in Amicus by MCCA

Status: Not Started

Opinions Link: 142842 Opinion

MonthArgued: 11

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​In January 1984, the State Tax Commission issued a bulletin directing rural electric cooperatives to prepare their personal property tax statements using “the same procedures” as investor-owned utilities. The 1984 bulletin did not mention contributions in aid of construction (an up-front financial contribution from a third party to a utility that the utility later uses to offset total construction costs of a project). However, when the tax commission later issued its 1984 personal property reporting form for rural electric cooperatives, that form included contributions in aid of construction – which investor-owned utilities were not required to report. As a result, Cherryland Electric Cooperative alleged, it paid more in taxes to Blair, East Bay, and Garfield Townships than it would have if the tax reporting form had reflected the same procedures as for investor-owned utilities.

 

Cherryland sought relief from the Michigan Tax Tribunal for taxes Cherryland paid in 1999, 2000, and 2001, contending that the townships were obligated to refund the alleged overpayment. Cherryland brought its claims under MCL 211.53a, which states:

 

 “Any taxpayer who is assessed and pays taxes in excess of the correct and lawful

amount due because of a clerical error or mutual mistake of fact made by the assessing officer and the taxpayer may recover the excess so paid, without interest, if suit is commenced within 3 years from the date of payment, notwithstanding that the payment was not paid under protest.”

 

The tax tribunal held that Cherryland was entitled to a refund, reasoning that “[t]he mutual mistake of fact was the parties’ shared erroneous belief that CIAC [contributions in aid of construction] was required to be reported and included pursuant to the [State Tax Commission’s] personal property statements and directives.”

 

The townships appealed, arguing that Cherryland was not entitled to a refund because any mistake was not one of fact, but one of law concerning requirements for tax reporting. But in an unpublished per curiam opinion, the Court of Appeals affirmed the tax tribunal.

 

“Paramount to the issue of whether recovery is warranted is a clear understanding of the difference between a mutual mistake of fact and a mistake of law,” the appellate court said.

 

The Court of Appeals compared Cherryland’s case to Ford Motor Company v City of Woodhaven, 475 Mich 425 (2006). In that case, Ford submitted tax statements that overstated the amount of taxable property Ford owned; based on those statement, tax assessors calculated, and Ford paid, more in taxes than Ford would have if the tax statements had been accurate. The Supreme Court held that Ford’s tax statements, which Ford and the tax assessors wrongly believed to be correct, supported “valid claims of mutual mistake of fact that were intended to be remedied under MCL 211.53a.” The Supreme Court reasoned that, when the Legislature inserted the term “mutual mistake of fact” into MCL 211.53a, the term was to be “construed and understood consistent with its peculiar meaning” as defined by common law. A “mutual mistake of fact” is defined as “an erroneous belief, which is shared and relied on by both parties, about a material fact that affects the substance of the transaction.” The parties’ mistake was mutual, the Court said, because both Ford and the tax assessors believed that the personal property statements were accurate. The mistake went to the “very nature of the transaction” because all the personal property Ford claimed in its statement was taxable.

 

Cherryland’s case, the Court of Appeals said, was “similar to the Ford case” in that “both Cherryland and the Townships’ assessors believed that the 1984 form was accurate. That belief, however, was erroneous as CIAC should not have been included in the personal property assessments for REAs based on the 1984 bulletin. The erroneous belief of the parties resulted in Cherryland’s personal property being inaccurately assessed, thus affecting the substance of the transaction.”

 

The townships argued that the mistake was one of law, because it was based on the State Tax Commission’s requirement – a matter of law, the townships contended – that the rural electric cooperatives report contributions in aid of construction. The Court of Appeals rejected that requirement: “[T]his case does not involve the ‘collection of an unauthorized tax.’ Rather, the tax here was authorized, but the form used to compute the tax contained an error.” Regardless of whether the State Tax Commission and the Michigan Electric Cooperative Association knew that the personal property reporting form included contributions in aid of construction, “any awareness does not change that Cherryland and the Townships’ assessors shared and relied on the erroneous belief that the 1984 form was correct,” the Court of Appeals said.

 

The townships appealed. In an order dated November 9, 2012, the Supreme Court ordered the case to be scheduled for oral argument “on whether to grant the application or take other action.” The Court directed the parties to “address whether these cases involve a mutual mistake of fact within the meaning of MCL 211.53a.”

Calendar Number: Oral Argument on Application

Date: 03/07/13

Issue: A rural electric cooperative in Grand Traverse County claims it overpaid personal property taxes based on a “mutual mistake of fact” and is entitled to a refund of the overpayment under MCL 211.53a.

Display Order: 2

Attorney Information:

Cherryland Electric Cooperative,		Norman D. Shinkle
	Petitioner-Appellee,
v	(Appeal from Ct of Appeals)
	(Michigan Tax Tribunal)
Blair Township,		Thomas A. Grier
	Respondent-Appellant.
_____________________________
Cherryland Electric Cooperative,
	Petitioner-Appellee,
v	(Appeal from Ct of Appeals)
	(Michigan Tax Tribunal)
East Bay Township,	Respondent-Appellant.
_____________________________
Cherryland Electric Cooperative,	Petitioner-Appellee,
	(Appeal from Ct of Appeals)
v	(Michigan Tax Tribunal)
Garfield Township,	Respondent-Appellant.

​

Briefs Information:

Application for Leave to Appeal

Brief in Opposition

Amicus by Michigan Townships Association

Petitioner-Appellees Answer to Amicus Brief

Respondent-Appellant's Supplemental Brief 

Order Link: 145340 Order

Status: Not Started

MonthArgued: 3

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​Devon Glenn and an accomplice robbed a gas station and convenience store, which was staffed by two clerks. Glenn was carrying what appeared to be a sawed-off shotgun – in reality, an airsoft gun. Glenn hit one clerk in the head with the butt of the gun, demanding that the clerk open the cash register; he also hit the other clerk in the head with the gun, knocking him to the ground. After taking money from the cash register and the store safe, Glenn and his accomplice fled to a getaway car with a third man at the wheel, but not before Glenn again hit one of the clerks in the head with the gun. As the two ran across the street, they were seen by an off-duty deputy, who gave chase in his own car. When he caught up to them, one of the robbers approached the deputy’s car and stuck the air gun inside the passenger window, telling the deputy to stop following. In response, the deputy pulled a real firearm, and the robber fled, getting away with Glenn and the driver of the getaway car. The three were later arrested, and Glenn confessed to the robbery.

 

Glenn was charged with conspiracy to commit armed robbery, two counts of armed robbery, and two counts of felonious assault. He was notified that, if convicted, he would be sentenced as a third habitual offender. Glenn pleaded guilty to one count of armed robbery and one count of felonious assault, in exchange for the prosecutor’s agreement to dismiss the other charges and the habitual offender notice; Glenn also agreed to testify against his co-defendants.

 

The judge sentenced Glenn to 15 to 30 years for armed robbery, and one and a half to four years for felonious assault. As a result of the judge’s scoring decisions, the minimum guideline range for Glenn’s armed robbery sentence was 126-210 months. Statutory sentencing guidelines include offense variables, which represent different aspects of a crime; the statute assigns a range of points for each OV. In this case, the judge scored 10 points for OV 12 (contemporaneous felonious acts). Over defense counsel’s objection, the judge also scored 50 points for OV 7 (MCL 777.37, aggravated physical abuse) for Glenn’s striking the two clerks with the air gun. If OV 7 had been scored at zero points, the guidelines would have recommended a minimum sentence in the range of 81 to 135 months. In explaining his decision, the judge said:

Clearly, they used a weapon. They struck, you know, several of the victims with the gun. Certainly, the victims – they could have certainly done this armed robbery, number one, without even using what appeared to be a sawed-off shotgun; and, moreover, striking at least one, or if not both of the clerks, with the weapon in the course of the thing. So I think it’s properly scored under OV-7.

 

Glenn appealed, limited to the trial judge’s scoring of OV 7, and in a published per curiam opinion, the Court of Appeals vacated Glenn’s sentences, saying that the trial judge should have scored “zero points” for OV 7.

 

“Fifty points can be assessed under OV 7 for ‘sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered,’” the appellate panel explained, citing MCL 777.37(1)(a). The prosecutor argued that Glenn, by hitting both clerks in the head with what appeared to be a shotgun, had engaged in “conduct designed to substantially increase the fear and anxiety” the victims suffered, the panel noted.

 

The panel rejected the prosecutor’s argument that Glenn’s actions were “designed to substantially increase the fear and anxiety” of the victims. While Glenn’s conduct was “certainly illegal and reprehensible,” it was not “savage or inhuman” compared to the conduct of others who perpetrate armed robberies or felonious assaults, the Court of Appeals said.

 

Moreover, Glenn’s conduct was not egregious enough to “substantially increase” the victims’ fear, the panel opined. “‘Substantial’ means ‘of ample or considerable amount, quantity, size, etc.’ … ‘Ample,’ in turn, is defined as ‘plentiful . . . liberal; copious….’ Therefore, defendant’s conduct would have substantially increased the victims’ fear only if the conduct was designed to cause copious or plentiful amounts of additional fear.”

 

And, although “conduct designed to substantially increase the fear and anxiety a victim suffered” has its own meaning independent of the other terms in the statute – “sadism, torture, or excessive brutality” – “it should nonetheless be construed to cover similarly egregious conduct,” the Court of Appeals said. “The conclusion that the Legislature intended OV 7 to apply only in egregious cases is also supported by the fact that assessing 50 points under OV 7, on its own, is enough to raise an offender’s OV level to III, considerably increasing a criminal’s minimum-sentence range.” Too, an overly broad reading of the term “conduct designed to substantially increase the fear and anxiety a victim suffered” would render the other terms in the list unnecessary, the panel reasoned.

 

Previous Court of Appeals decisions had upheld 50 points for OV 7 only in cases involving “specific acts of sadism, torture, or excessively brutal acts by the defendant,” the appellate panel said. Moreover, because using a dangerous weapon is an element of armed robbery and felonious assault, “the presence of a weapon and the use of a certain amount of force or intimidation must be discounted for purposes of OV 7. All such crimes against a person involve the infliction of a certain amount of fear and anxiety. OV 7 is designed to respond to particularly heinous instances in which the criminal acted to increase that fear by a substantial or considerable amount.”

 

Glenn’s “actions were undoubtedly designed to cause fear and anxiety in his victims,” and he “may have used more violence that would be strictly necessary to complete an armed robbery,” the Court of Appeals stated. “However, because OV 7, by its own terms, is to be scored at 50 points only for conduct ‘designed to substantially increase the fear and anxiety’ of a victim, we conclude that zero points should have been assessed for OV 7.”

 

The prosecutor appealed, and in an order dated June 8, 2012, the Supreme Court granted leave to appeal. The Court directed the parties to “address whether the trial court erroneously assessed 50 points for offense variable 7 (OV 7), MCL 777.37(1)(a), for committing assaultive acts beyond those necessary to commit the offense.”

Calendar Number: 3

Date: 05/08/13

Issue: While robbing a convenience store, the defendant hit both store clerks in the head with what appeared to be a sawed-off shotgun. Should the range for his minimum sentence be increased on the basis that his conduct was “designed to substantially increase the fear and anxiety a victim suffered”?

Display Order: 2

Attorney Information:

The People of the State of Michigan,		Jerrold E. Schrotenboer
	Plaintiff-Appellant,
v	(Appeal from Ct of Appeals)
	(Jackson – McBain, J.)
Devon Decarlos Glenn, Jr.,		Linda D. Ashford
	Defendant-Appellee.

​

Briefs Information:

​Appellant's Brief on Appeal

Appellee's Brief on Appeal

Appellant's Reply Brief

Amicus Brief by Attorney General

Amicus Brief by David Farnen

Status: Not Started

MonthArgued: 5

Body Copy 2A:

​The following are summaries of cases that have been or will be argued before the Michigan Supreme Court during the 2012-2013 term, as well as links to the Court's opinion or order in each case. Further information may be obtained by calling the Supreme Court Clerk's Office at 517-373-0120. To help you select cases that may be of interest to you, the Court's staff has prepared the following synopses. These are simple summaries of complicated cases, and might not reflect the manner in which some or all of the Court's seven Justices view the cases. The lawyers may also disagree with regard to the facts, the issues, the procedural history, or the significance of their cases. For further details concerning these cases, you should contact the lawyers.

Body Copy 1A:

Michigan Supreme Court

Clerk's Office

Hall of Justice, 4th Floor

925 W. Ottawa Street

Lansing, MI 48915

Phone: (517) 373-0120

MonthArgued: 12