Kyra Harris Bolden

Posted to Facebook "Justice Kyra Harris Bolden was honored and thrilled to have attended last night's 69th NAACP Freedom Fund Dinner! Celebrating the commitment to justice for all. #NAACP #FreedomFundDinner #JusticeForAll #KeepKyra"

Justice Bolden emphasizes on her campaign website:

• Fighting for Access to Justice for All
• Commitment to Equal Justice
• Dedication to the Rule of Law

“Justice Kyra Harris Bolden is serving in her second year on the Michigan Supreme Court and remains committed to ensuring equal access to justice, applying the law without fear or favor, and treating all who come before our state’s highest court with dignity and respect. In her first year, she had the distinct honor of authoring three majority opinions, one unanimous.” — Kyra Harris Bolden for Michigan Justice

"I'm committed to protecting equal justice, access to justice, and the rule of law on the highest court in Michigan." — Kyra Harris Bolden for Michigan Justice

Kyra Harris Bolden completed Ballotpedia's Candidate Connection survey in 2020.

Kyra Harris Bolden completed Ballotpedia's Candidate Connection survey in 2022.

People v. King, 512 Mich. 1, 999 N.W.2d 670 (2023) Justice Bolden authored opinion in which Justices Clement, Zahra, Bernstein, Cavanagh and Welch joined. Justice Viviano concurred dubitante.

Holding(s): The Court reversed King's conviction and remanded the case for further proceedings. The Court held the forfeiture doctrine under Carines did not apply. The Court concluded, "Absent a defendant’s valid waiver of their right to counsel, deprivation of counsel during critical stages of the criminal proceedings is a structural error subject to automatic reversal, even when a defendant formally requests to represent themself." (1,14) The Court held that King “was not required to affirmatively invoke his Sixth Amendment right to counsel in order to preserve that right.” (14) 

Analysis: The Court addressed forfeiture and waiver noting that the United States Supreme Court distinguishes between waiver and forfeiture of rights. Waiver involves the intentional relinquishment of a known right, extinguishing both the right itself and the ability to appeal any related error. In contrast, forfeiture occurs when a party fails to timely assert a right, which does not eliminate the potential for appellate review of that error. Finding the waiver invalid the Court found that "[t]he crucial question here [wa]s whether a defendant may forfeit the right to counsel." (9) The Court concluded that right to counsel was fundamental thus could not be forfeited thus the defendant did not need to explicitly assert their right to counsel to preserve it; the right was maintained unless there was a valid waiver. The court concluded that without a proper waiver, defendants retain the right to counsel throughout critical stages of their criminal proceedings, finding that requiring a defendant to recognize and object to their own invalid waiver impractical. The Court concluded since the error was a structural error during a critical stage that automatic reversal was required.

Viviano's Concurrence: Viviano concurred dubitante. He noted that the defendant’s conviction stemmed from a no-contest plea, and to reverse it, an error affecting the plea must be identified. The majority relied on an error regarding the waiver of counsel that occurred before the plea, without considering its relevance to the plea itself. He emphasized that generally, a guilty plea bars claims of prior constitutional violations, as it represents a break in the chain of events leading to conviction. He cited established case law, indicating that defendants can typically only challenge the voluntariness of their pleas, not earlier errors.

Background: King was charged as a fourth-offense habitual offender for breaking and entering, under MCL 750.110a(2). Before trial, he requested to represent himself and terminate his appointed counsel, which the trial court granted, although it retained counsel as advisory. On the first day of trial, the defendant opted to enter a no-contest plea under a Cobbs agreement. After seeking to appeal, the Court of Appeals examined the validity of the defendant's waiver of his right to counsel. The court found that while the trial court had failed to comply with established guidelines, the defendant ultimately benefited from advisory counsel during the plea process, which negated the need for reversal. The appellate court applied the plain-error test and concluded that the defendant's rights were upheld despite procedural missteps. Defendant appealed. "This case concern[ed] whether the forfeiture doctrine articulated in People v Carines, 460 Mich 750; 597 NW2d 130 (1999), applie[d] where a self-represented defendant fail[ed] to object when the trial court fail[ed[ to obtain a valid waiver of the right to counsel." (1)

Applicable Law:

• "The United States Supreme Court has made clear that '[w]aiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right." ' United States v Olano, 507 US 725, 733; 113 S Ct 1770; 123 L Ed 2d 508 (1993)[.]" (6)
• "A waiver extinguishes the right, as well as any right to pursue an alleged error on appeal. See Olano, 507 US at 733; see also People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000)." (6)
• "[S]tructural errors, are reviewed for plain error affecting substantial rights." (7)
• "In addressing the third prong, also known as the prejudice prong, the Davis Court held that 'a forfeited structural error creates a formal presumption that this prong of the plain-error standard has been satisfied." (7)
• "The formal rebuttable presumption in cases of forfeited structural error . . . shift[s] the burden to the prosecutor to demonstrate that the error did not seriously affect the fairness, integrity, or public reputation of the judicial proceeding.” (7)
• "[T[he Constitution requires a defendant to give a 'knowing, voluntary, and intelligent' waiver of the right to counsel in order to exercise the right to self-representation. Tovar, 541 US at 87-88." (8)
• "Under Anderson, 398 Mich at 367-368, the trial court must find that the following three factors have been met: (1) the defendant’s request to represent themself is unequivocal, (2) the defendant is asserting the right knowingly, intelligently, and voluntarily after being informed of the dangers and disadvantages of self-representation, and (3) the defendant’s self-representation 'will not disrupt, unduly inconvenience and burden the court and the administration of the court’s business.'" (8-9)
• “Additionally MCR 6.005(D) provides that the trial court ‘may not permit the defendant to make an initial waiver of the right to be represented by a lawyer without first’: (1) advising the defendant of the charge, the maximum possible prison sentence for the offense, any mandatory minimum sentence required by law, and the risk involved in self-representation, and (2) offering the defendant the opportunity to consult with a retained lawyer or, if the defendant is indigent, the opportunity to consult with an appointed lawyer.” (9)

Mothering Just. v. Att'y Gen., No. 165325, 2024 WL 3610042 (Mich. July 31, 2024), opinion clarified, 10 N.W.3d 845 (Mich. 2024). Justice Welch authored the opinion in which Justices Bernstein, Cavanagh, and Bolden joined. Justice Bolden filed concurring opinion, in which, Zahra and Viviano joined. Justice Zahra dissented joined by Justices Clement and Viviano.

Holding(s): The Court held that the Michigan Legislature may not amend a law proposed by initiative petition in the same session that the Legislature had enacted it finding that "adopt-and-amend" approach violated the people's constitutional right to propose and enact laws via the initiative process. The Court reversed the Court of Appeals’ decision and reinstated the original laws, 2018 PA 337 and 2018 PA 338. The Court noted the when a statute is unconstitutional it is void from the beginning, but found it could apply a more flexible approach to avoid full retroactivity. The Court thus held "that the Wage Act and the Earned Sick Leave Act shall go into effect 205 days after this opinion’s publication date." (35)

Analysis: The Court analyzed whether the adopt-and-amend process was constitutional, emphasizing that political power is inherently vested in the people according to the Michigan Constitution. The Court found that the Constitution "plain text provides the Legislature with three discrete options upon  receiving a valid initiative petition." (13) Two of these options involve rejecting the initiative, which the Court concluded requires putting the issue directly to the voters, while the third option allows for adoption without voter approval. Thus, the Court concluded that the Legislature could not alter or reject an initiative without voter consent. The Court argued that interpreting Article 2, § 9 to permit an "adopt-and-amend" approach would effectively eliminate one of the three specified options, rendering parts of the provision meaningless (surplusage doctrine). The Court argued that the ratifiers would not have intend for a contradictory fourth option to exist. The Court argued that even if there were ambiguity, the Court noted that any interpretation must favor the people's rights, concluding that the Legislature's actions in passing the Amended Wage Act and the Amended Earned Sick Time Act unduly burdened voters' direct-democracy rights. 

Bolden Concurrence: Bolden wrote separately to "express ... disappointment that no remedy exists through which [the Court] could provide the voters with the constitutional guarantees of the initiative clause by placing this matter on the ballot for a general election." (5)

Clements Dissent: Justice Clement argued that the Legislature’s power under Const 1963, art 4, § 1 is limited only if the Constitution expressly says so. And Const 1963, art 2, § 9 is silent about whether the Legislature may amend a law proposed by initiative petition in the same session that the Legislature has enacted it." 

Zahra's dissent: Justice Zahra argued that adopting and amending initiative petitions within the same legislative session was constitutionally acceptable. Zahra criticized the majority's remedy of abrogating 2018 PA 368 and 2018 PA 369 and reviving earlier versions of the laws, claiming it improperly intruded on legislative authority. The dissent argued that the majority's actions had no founding in Michigan law and overstepped judicial power. Zahra argued that reviving the previous statutes would significantly alter labor relations and sick leave entitlements without reflecting the Legislature's intent. 

Background: In 2018, two initiative petitions were introduced: the Improved Workforce Opportunity Wage Act (Wage Act) and the Earned Sick Time Act. The Wage Act aimed to raise the minimum wage significantly and adjust it for inflation, while the Earned Sick Time Act required employers to provide paid sick time to employees. After adopting the initiatives without change the Legislature chose amended them. Plaintiffs argued that this "adopt-and-amend" tactic violated their constitutional rights under the initiative process. The Court of Claims agreed, ruling that the Legislature's actions were unconstitutional and that the original laws remained in effect. However, the Court of Appeals reversed this decision, stating that the Michigan Constitution does not prohibit the Legislature from amending laws it adopts during the same session.

Applicable Law(s)

• MCL - Article II § 9 (full text not included in opinion)

People v. Stewart, 512 Mich. 472, 999 N.W.2d 717 (2023). Chief Justice Clement authored opinion in which Justices Bernstein, Cavanagh, Welch and Bolden joined. Justice Viviano dissented joined by Justice Zahra.

Holding(s): The Court reversed the court of appeals judgement and remanded the case for a new trial. The Court concluded that the overall circumstances surrounding the defendant's interrogation—including his age, the timing, the officers' implied leniency, their use of false information, and the aggressive tone—overwhelmed his free will, rendering his statements involuntary. Thus the Court concluded the admission of these statements at trial violated the defendant's constitutional rights, and the prosecution failed to demonstrate that this error was harmless beyond a reasonable doubt.  

Background: Stewart, he was convicted by the Wayne Circuit Court of multiple charges, including armed robbery and possession of a firearm during a felony. Stewart allegedly acted as the getaway driver in two armed robberies, during which two victims were shot, and one later died. After being arrested for transporting one of the perpetrators to the hospital, Stewart confessed to driving the getaway vehicle during a police interview. He moved to suppress his statements, claiming they were involuntary due to coercive tactics used by the police, but the trial court denied his motion. On appeal, the Court of Appeals upheld the trial court’s decision, finding that his statements were voluntary. This Court asked “At issue in this case is whether defendant’s statements to law enforcement, made during an early-hours interrogation, were voluntary.” (1)  

Analysis: The Court first examined of the interrogation dedicating seven pages of its analysis to it. The Court detailed how Stewart consistently denied involvement in the shooting. The opinions described the police's as skeptical and using coercive tactics. The Court then assessed the voluntariness of Stewart’s statements based on the facts it presented. The Court considered various elements, including the defendant’s age, his recent cancer diagnosis, the timing of the interrogation, implications of leniency, the use of false evidence, and the combative tone adopted by the officers. It concluded that the statements were not made voluntarily, thereby violating his constitutional right to due process. 

Viviano Dissent: Justice Viviano dissented, finding that, under the totality of circumstances, the defendant's confession was voluntary. He argued that “the majority overrides the decision of the experienced lower court judges who thoroughly and correctly assessed the record and determined the confession was voluntary.” (4) He argued that, even if the majority considered the defendant's characteristics, its analysis should have focused on police conduct and whether any threats, intimidation, or physical force were employed. Justice Viviano criticized the majority for failing to adequately discuss the significance of the Miranda warning as a factor in determining voluntariness, noting that proper Miranda warnings generally render subsequent confessions voluntary.

Furthermore, Justice Viviano argued that the majority’s reliance on the defendant's age was overly broad. He emphasized that the trial court found no evidence that the defendant's health affected his ability to endure questioning, nor did the defendant request breaks during the interview. He argued that the majority had reinterpreted the trial court’s factual findings and that the Court's analysis should have relied on the trial court's findings. He argued that the Michigan Supreme Court had not found promises of leniency to be coercive, arguing that police tactics involving deception and trickery were permissible.  

Applicable Law(s): 

• "[T]he United States and Michigan Constitutions protect citizens against self-incrimination and afford due process of law. US Const, Ams V and XIV; Const 1963, art 1, § 17." (4)
• “In other words, “‘[i]f an individual’s will was overborne or if his confession was not the product of a rational intellect and a free will, his confession is inadmissible because [it was] coerced.’Townsend v Sain, 372 US 293, 307; 83 S Ct 745; 9 L Ed 2d 770 (1963)” (4-5) 
• “When the voluntariness of a confession is challenged, ‘the burden is on the people to demonstrate voluntariness by a preponderance of the evidence.’ Conte, 421 Mich at 754-755 (opinion by BOYLE, J.) (citation omitted).” (5) 
• “To determine whether a statement was involuntary because of state coercion, a reviewing court must consider ‘whether the totality of the circumstances surrounding the making of the confession indicates that it was freely and voluntarily made.’ Cipriano, 431 Mich at 334.” (5) 
• “While all relevant circumstances must be considered, this Court has specifically directed consideration of the following factors: the age of the accused; his lack of education or his intelligence level; the extent of his previous experience with the police; the repeated and prolonged nature of the questioning; the length of the detention of the accused before he gave the statement in question; the lack of any advice to the accused of his constitutional rights; whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession; whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; whether the accused was deprived of food, sleep, or medical attention; whether the accused was physically abused; and whether the suspect was threatened with abuse. [Id.]” (5) 
• “promises of leniency can render a confession involuntary. Conte, 421 Mich at 724-725 (opinion by WILLIAMS, C.J.).” (5)  

Amendment of Rule 1.109 of the Michigan Court Rules (2023) Justice Welch concurred joined by Justice Bolden. Justice Bolden concurred. Zahra dissented joined by Justice Viviano. Justice Viviano dissented.

Background: "[The following amendment of Rule 1.109 of the Michigan Court Rules [wa]s adopted, effective January 1, 2024." (1) "The amendment of MCR 1.109(D)(1)(b) allows parties and attorneys to provide a preferred salutation or personal pronoun in document captions and requires courts to use one of the following means of addressing, referring to, or identifying the party or attorney: the individual’s name, preferred salutation, personal pronoun, or other respectful means that is not inconsistent with the individual’s designated salutation or personal pronoun." (1)

Bolden Concurrence: Bolden wrote, “I fully agree with the Court in adopting this amendment.” (5) Bolden stated “that amendment of MCR 1.109 iss not landmark[,]” rather it “mirrors the expectation found in our judiciary canons.” (5) Bolden found the amendment “aims to prevent judges from discriminating based on gender identity.” (5) Bolden further argued that the amendment “helps to break down some of the fear, intimidation, and anxiety parties may have when stepping into courtrooms.” (6) “Members of the LGBTQ+ community, for example[.] Bolden quoted Supreme Court Justice Sotomayor’s who wrote “LGBTQ people do not seek any special treatment. All they seek is to exist in public.” (7) Bolden found that judges still “retain discretion and can find other means to address parties. Bolden further found, “Canon 2(A) requires judges to “accept restrictions on conduct that mght be viewed as burdensome by the ordinary citizen and [they] should do so freely and willingly.” (7) Bolden found the amendment is consistent with Bostock v Clayton Co, 590 US ___; 140 S Ct 1731 (2020); recent Michigan Supreme Court precedent citing the Court decision in Rouch World, LLC v Dep’t of Civil Rights, 510 Mich 398, 403 (2022); recent legislative amendments to the Elliot-Larsen Civil Rights Act (ELCRA), MCL 37.2101, and with the 5th Circuit of the United State Court of Appeals decision in United States v Varner, 948 F3d 250, 255-258 (Ca 5, 2020). (8) Bolden wrote, “Michigan is the first state court to amend its court rules to expressly include such comprehensive protection for personal pronouns—history is made by being the first.” “We are sending a signal that ‘a[ll] members of the public are entitled to inhabit public spaces on equal terms.” (9)  

Welch Concurrence: Welch concurred believing the amendment would “bolster public confidence in the judiciary.” (2) Welch quoted former Chief Justice McCormack who stated, “'[p]ublic confidence is the only currency that courts and judges have, and impartiality is central to public confidence.'McCormack Staying off the Sidelines: Judges are Agents for Justice System Reform, 131 Yale LJ Forum 175, 181 (2021)"(2)  Welch found the Court “must conduct business in a way that does give the appearance of misgendering individuals, intentionally or otherwise.” (2) In regard to the argument “that the use of the pronoun ‘they’ for nonbinary individual is grammatically confusing when referring to one person[,]” (4) Welch found the historical “they” has been used as a singular pronoun and argued that "society has navigated grammatical shifts many times through the centuries.” (4) In regard to the argument that “the use of person’s specified pronouns in the judiciary is that a record will be confusing if underlying evidence identifies a party by one gender, but that person prefers a different pronoun[.]” Welch argued “that the use of gender-neutral pronouns was not a new concept[,]” citing Farmer v. Brennan, 511 US 825 (1994) and Santos-Zacaria v. Garland, 598 US 411 (2023). (5) Lastly in regard to religious objections to the Amendment Welch argued that “the rule provides that ‘other respectful means’ can be used to address a party who makes a specific pronoun request.” (5) Welch stated, “gender identity of a member of the public is a part of their individual identity, regardless of whether others agree or approve.” (5)

Zahra’s Dissent:  Zahra’s “dissent[ed] from the implementation of th[e] [amendment] rule[]” stating that “this [was] a fluid political debate into which our judicial branch of state government should not wade, let alone dive headfirst and claim to have resolved. Such hubris has no place within the operation of a judicial branch of state government.” (10)  Zahra’s quoted the Catholic Lawyers Society of Metropolitan Detroit which wrote, “[t]he Court should decline to insert itself into one of the most controversial social issues to punish dissenters whilst ignoring their constitutional rights.” (10)  Further Zahra’s found “the rule change [was] entirely unnecessary [,]” as the Courts “Code of Judicial Conduct, Canon 2(B0, provides that ‘a judge should treat every person fairly, with courtesy and respect.” (10) Further Zahra’s argued that the rule does not account for the issues it creates such as “misuse or abuse of the judicial system, and a rule that denied trial courts the authority to control such actors is misconceived and imprudent.” (11) Lastly, Zahra’s argued the rule “provides no basis for the judge to ensure a clear record under circumstances” leading to “a record littered with inconsistent usage of pronouns to identify the same person.” (12) 

Viviano dissent: Viviano notes that “Justice WELCH’s concurrence cites a former colleague’s article advocating for judges to act as activists for change in the legal system.” (13) Regarding the argument that the amendment will result in increased public confidence in the courts Viviano found that “[w]hen the topic is political...such actors can only undermine the public’s confidence in the court’s ability to serve as impartial arbiters of the law.” (14) Viviano notes his dissent “is not...an attempt to take sides.... My purpose is to demonstrate the foolishness of judges taking any stance on this or any other contentious political topic[.]” (14) Viviano argued that judges “are elected to faithfully interpret and enforce the laws and regulations adopted by the policymaking branches, so far as they are consistent with the Constitution. And with regard to our rulemaking authority, [Judges] are constitutionally confined to matters of ‘practice and procedure[.]” (15) 

Bolden was chair of the House Diversity, Equity and Inclusion Committee

Said she looks up to "Justice Ruth Bader Ginsburg.. and Michigan Congresswoman Brenda Lawrence[,]" stating "Justice Ginsburg fought for justice for all every day until her passing." 

"Important characteristics of an elected official include integrity; transparency; fairness and treating each individual with dignity and respect."

"Persons elected to serve as part of the judicial branch have a responsibility to review each case without fear or favor based upon the law and all of the evidence presented and be thoughtful and well-reasoned in their independent decision making."

"A judge must be able to put aside any personal bias and be able to look at each case in an impartial manner, on a case by case basis, based upon the law and all the evidence presented.To do so one must be conscious of anything that may impact how they hear and rule on a case. It is important for a judge to recognize that cases presented to the court are about people and impact people. Judges must be aware that empathy is part of our legal system. To be fair in the courtroom and have a more equal justice system, judges may need to broaden their level of empathy to be able to tune in to both sides in hearing a case and making decisions. Fairer and improved decisions may result in acknowledging and paying closer attention to empathy to ensure it does not align moreso toward one party but rather allows the judge to be a more neutral arbiter. Failing to be conscious of empathy and how it can impact decisions may result in more unfair decisions."

Milne v. Robinson, 513 Mich. 1, 6 N.W.3d 40 (2024). Per Curium opinion signed by Chief Justice Clement and Justices Zahra, Bernstein, Cavanagh, Welch, and Bolden. Justice Viviano concurred in result only.

Holding(s): The Court held that the RUA limits a vehicle owner's liability, stating that an owner-liability claim under MCL 257.401(1) for injuries incurred during recreational activities on the owner’s property must be based on gross negligence or willful and wanton misconduct. The Court emphasized that claims based on ordinary negligence are not viable under the RUA in cases involving recreational activities on private land. This, the Court affirmed the trial court's decisions because Milne did not challenge the lack of factual support for her claim of gross negligence against Larry. 

The Court first held that the RUA applied, as riding an ORV fell under "other outdoor recreational uses" outlined in the statute. Next the Court held that the RUA limited liability under the owner-liability statute. The majority reasoned that the statutes served different purposes: the RUA encourages landowners to permit recreational activities by limiting their liability, while the owner-liability statute places responsibility on vehicle owners based on the actions of others. The Court concluded that the RUA's intent was to limit owner liability under specific circumstances.

Justice Viviano's Concurrence: Justice Viviano, concurring in the result only, disagreed with the majority's reasoning but agreed with the Court of Appeals that the conflict between the owner-liability provision and the RUA was properly addressed using the general/specific canon. He argued that the canon could resolve conflicting statutory provisions enacted at different times, and that it only required a sufficient overlap in subject matter to create an irreconcilable conflict. In this case, he concluded that the RUA was the more specific statute, meaning Larry could not be held liable for ordinary or imputed negligence.

The majority ourt argued that the general/specific canon was inapplicable because the Recreational Use Act (RUA) and the owner-liability provision do not address the same subject matter or share a common purpose. The RUA aims to limit landowner liability to promote recreational access, while the owner-liability provision establishes vicarious liability for vehicle owners. The majority argued that despite both statutes addressing civil liability, their distinct objectives and scopes mean they could not be read together under the general/specific canon, as any incidental overlap did not imply they relate to the same legislative intent.

Background: Milne, acting as the personal representative of her daughter’s estate, sued Riley’s grandfather (Larry) and grandmother (Ann) after the death of 12-year-old Riley, who died while riding an off-road recreational vehicle (ORV) owned by the grandparents on their property. Milne alleged that the defendants were negligent and therefore responsible for Riley's death. The defendants sought summary disposition, claiming immunity under the Recreational Land Use Act (RUA) and asserting that Milne had not adequately pleaded gross negligence, which was required under the RUA. Milne attempted to amend her complaint to add a claim of gross negligence against and a claim under Michigan's owner-liability statute (MCL 257.401(1)). The trial court granted summary disposition for the defendants, concluding that the RUA applied and precluded Milne’s negligence claim. The Court of Appeals affirmed this decision, and Milne sought leave to appeal to the Michigan Supreme Court. In this case the Court addressed two main questions: whether the RUA applied to the case and whether it limited the owner-liability claim.

Applicable Law: 

• “MCL 324.73301(1) provides: Except as otherwise provided in this section, a cause of action does not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.” (5)
• MCL - Section 257.401 (text not included in opinion.)
  

Woodman v. Dep't of Corr., 511 Mich. 427, 999 N.W.2d 463 (2023). Justice Bolden authored opinion in which Justices Clement, Bernstein, Cavanagh and Welch joined. Justice Zahra dissented in part joined by Justice Viviano.

Holding(s): The Court reversed the court of appeals holding that the plaintiffs prevailed only in part. The Court held that the Plaintiffs had prevailed fully under MCL 15.240(6) and were entitled to reasonable attorney fees. The Court found that because the action was reasonably necessary to compel disclosure of the video and audio recordings and because the Plaintiffs received everything, they had originally requested that they were entitled to attorney fees. Additionally, the Court found the Plaintiff prevailed in full because the trial court had ordered the disclosure of the record before allowing for redactions and because the plaintiffs were able to view the unredacted recordings. The Court held that the court of appeals abused its discretion when reducing attorney fees to Honigman because it had not considered the Smith/Pirgu factors when reducing the award by 90% and held that pro bono representation is never a factor to consider. 

Zahra's Dissent in part: Justice Zahra argued that the plaintiffs did not fully prevail because they initially sought unredacted records but only received redacted versions, and that the pro bono nature of representation should be considered when assessing the reasonableness of attorney fees.

Applicable Law: “MCL 15.240(6) states that “If a person asserting the right to inspect, copy, or receive a copy of all or a portion of a public record prevails in an action commenced under this section, the court shall award reasonably attorney’s fees, costs, and disbursements. If the person or public body prevails in part, the court may in its discretion, award all or an appropriate portion of reasonable attorney's fees, costs, and disbursements.” (10) The “court’s analysis of whether the plaintiff prevailed considers three fundamental questions: (1) Was the action reasonably necessary to compel the disclosure of the records? (2) Did the action actually have the causation effect of delivering the information? And (3) did the plaintiff obtain everything it initially sought?” (11)  

Background: The case arose after Plaintiff’s FOIA request was denied by the Michigan Department of Corrections (MDOC). The FOIA sought video and audio recordings of a prison altercation that resulted in the death of an inmate. The department asserted the request was exempt under MCL 15.243(1)(c). Plaintiffs, represented in part by the ACLU, filed in the Court of Claims. The Court of Claims ordered the unredacted video and audio recording be turned over the Plaintiff’s. MDOC moved for reconsideration and alternatively argued that the Court should permit redaction by blurring persons’ faces. The Court denied the motion but allowed for the blurring of individual faces within the video. Finding that the Plaintiff’s had fully prevailed the Court of Claims held Plaintiffs were entitled to reasonable attorney’s fees under MCL 15.240(6) and awarded the ACLU 100% of the fee it requested and awarded Honigman (who also represented the Plaintiffs) 10% of the fee it requested due to the pro bono nature of its representation. Both Plaintiffs and Defendant’s appealed. Plaintiffs raised issues pertaining the award of attorney fees and punitive damages. Defendants argued that Plaintiffs did not prevail in full and thus were entitled to attorney fees.  The court of appeals found the Plaintiffs had only prevailed in part and remanded the cases. Plaintiffs sought leave to appeal to the Supreme Court of Michigan. 

Key Votes on Vote Smart (from when Candidate was a Michigan State Representative).