In his diverse appellate and emergency litigation practice, Michael F. Smith has been involved in matters in a wide array of state and federal courts and tribunals, on behalf of parties and amici curiae. (Of course, past results are no guarantee of future success). Noteworthy among them in recent years are:
● Hothi v. Musk, 2021 Westlaw 5998549 (Cal. Ct. App. 2021). Successfully defended lower-court ruling denying Elon Musk's motion under California anti-SLAPP Act to dismiss defamation action arising from Tweets alleging unlawful conduct by plaintiff.
● St. Michael’s Media, Inc. v. Mayor and City Council of Baltimore, 2021 Westlaw 6502219 (4th Cir. 2021). Fourth Circuit affirmed lower-court ruling and rejected emergency stay request where Baltimore city officials violated First Amendment by attempting to cancel Catholic organization's prayer rally based on unlawful viewpoint discrimination.
● Kelly v. Pennsylvania, 240 A.3d 1255 (Pa. Sup. Ct. 2020), cert. denied, 141 S. Ct. 1449 (2021). Filed amicus curiae brief on behalf of 28 Republican U.S. House Members in support of certiorari petition arguing that Pennsylvania statute and court ruling adopting no-excuse absentee and mail-in voting for 2020 election violated Federal and Commonwealth Constitutions.
● United States v. Browne, 953 F.3d 794 (D.C. Cir. 2020). Obtained remand for factual development of ineffective assistance of trial counsel claims arising from kidnapping and marijuana conviction.
● Traverse City Record-Eagle v. Traverse City Area Public Schools Bd. of Ed., __ Mich. App. __, 2021 Westlaw 1931997 (Mich. Ct. App. 2021). Filed amicus curiae brief for several Michigan news organizations, journalists and open-government groups arguing that document outlining complaints against superintendent was not part of closed-meeting minutes and thus disclosable under FOIA.
● Johnson v. Secretary of State, 506 Mich. 975 (2020). Filed amicus curiae brief on behalf of Eagle Forum Education and Legal Defense Fund discussing historical authority of Michigan Supreme Court to grant relief sought in petitions for extraordinary writs and declaratory relief arising from 2000 Presidential election.
● Thomas v. City of Memphis, TN, 996 F.3d 318 (6th Cir. 2021). Filed amicus curiae brief on behalf of two website news publishers arguing that “voluntary cessation” doctrine did not render moot plaintiff’s FOIA claim against Memphis and its Mayor.
● Warren City Council v. Buffa, 333 Mich. App. 422, lv denied, 506 Mich. 889 (2020). In emergency four-day appeal to state Court of Appeals and Supreme Court arising from election-related mandamus action, filed numerous motions and briefs on behalf of City Clerk.
● Kaucheck v. Detroit Free Press, 2020 Westlaw 3120357 (Mich. Ct. App. 2020). Summary disposition affirmed for Survivors Network of those Abused by Priests and director in defamation and false-light privacy claim arising from archdiocesan investigation of priest; comments were opinion and hyperbole, not statements of objective fact.
● United States v. Snell, 813 Fed. Appx. 151 (4th Cir. 2020), cert. denied, 141 S. Ct. 1694 (2021). Fourth Circuit assumed Guidelines-calculation error but affirmed sentence of former police officer on drug and conspiracy charges under “assumed error harmlessness inquiry.”
● In re A.G. Hopkinson, Oakland County (Mich.) Probate No. 2019-391,589-CZ (2019). On emergency basis obtained order directing funeral home not to divide ashes of minor daughter among various family members as demanded by absentee father, but to release all ashes to mother consistent with Catholic faith of mother and daughter.
● Harrison v. Soave Enterprises L.L.C., 826 Fed. App’x 517 (6th Cir. 2020), cert. denied sub nom. Parts Galore L.L.C. v. Harrison, 141 S. Ct. 2570 (2021). Unsuccessful defense of summary judgment in case alleging failure to accommodate employee under Americans with Disabilities Amendments Act.
● Montgomery County v. Complete Lawn Care, Inc., 240 Md. App. 664 (2019). Counsel for amici curiae Maryland Association of Counties and Maryland Municipal League in support of County’s successful argument that its pesticide regulation was not preempted by state law.
● TM v. MZ (Aft Remand), 326 Mich. App. 227 (2018). Co-counsel for amici curiae Pennsylvania Center for First Amendment and Aaron H. Caplan in support of respondent M.Z. in action vacating as an unconstitutional prior restraint a Personal Protection Order that barred him from certain Facebook speech.
● Tesla Motors, Inc. v. Johnson, 2017 Westlaw 11500988 (W.D. Mich. 2017). Represented statewide auto dealers group asserting First Amendment associational privilege in response to subpoena for documents relating to political activities.
● Great American Ins. Co. v. E.L. Bailey & Co., Inc., 841 F.3d 439 (6th Cir. 2016). Sixth Circuit resolved two issues of first impression under Michigan law as to proper time and forum for principal to bring bad-faith claim relating to surety’s payments under performance and construction bonds.
● Bar’s Prods., Inc. v. Bars Prods. Int’l, Inc., 662 Fed. App’x 400 (6th Cir. 2016). Judgment for $2.5-million against maker of automotive aftermarket product vacated in part, and company’s original claims revived and remanded for trial.
● Chrysler Group L.L.C. v. Fox Hills Motor Sales, Inc., 776 F.3d 411 (6th Cir)., cert. denied, 576 U.S. 1035 (2015). Michigan and Nevada auto dealer-franchise laws pre-empted by the Consolidated Appropriations Act of 2010, since they bar relief for dealers terminated from old Chrysler's dealer network in bankruptcy who established in subsequent arbitrations that they should be added to the new Chrysler's network.
● Jae Lee v. United States, 582 U.S. __, 137 S. Ct. 1958 (2017). On behalf of nonprofit center that promotes best practices in the criminal-justice system, filed amicus curiae brief supporting certiorari petition raising ineffective-assistance-of-counsel claim in immigration context.
● Walker v. Maryland, 2018 Westlaw 3414224 (Md. Ct. Spec. App. 2018). Counsel for amicus curiae Prof. Eugene Volokh, arguing that Maryland Crim. Law § 3-805(b)(2) is a content-based restriction that unconstitutionally punishes or deters a wide range of fully protected speech.
● Trahey v. City of Inkster, 311 Mich. App. 582 (2015). Trial-court rulings ordering City to cut water rates and refund $2.6 million to customers vacated; lower court clearly erred in finding rates unreasonable, and City's court-ordered payment of refunds did not moot appeal.
● Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Filed amicus curiae brief on behalf of scholar supporting traditional marriage and opposing judicial override of state marriage laws; brief cited in dissenting opinion of Justice Thomas. Also filed amici curiae briefs in other marriage cases in various federal circuit and district courts.
● Leavitt v. Felton, 2016 Westlaw 2944824 (Mich. Ct. App. 2016). Co-counsel on amicus curiae brief supporting summary disposition for defendant-student on First Amendment grounds in defamation action arising from parody Twitter account.
● Kimberlin v. National Bloggers Club, 2015 Westlaw 1242763 (D. Md.), appeal dismissed, 604 Fed. App’x 327 (4th Cir. 2015). RICO claims brought by convicted domestic terrorist against nationally prominent conservative commentator and website dismissed.
● Lancia Jeep Hellas v. Chrysler Group Int’l L.L.C., 2016 Westlaw 1178303 (Mich. Ct. App. 2016). Interlocutory appeal challenging summary disposition of vehicle distributor’s fraudulent-inducement and contract claims against manufacturer arising from settlement of earlier litigation.
● Bank of America, N.A. v. First American Title Ins. Co., 499 Mich. 74 (2016). Filed amicus curiae brief on behalf of national association of title insurers discussing history and relevance and urging retention of full credit-bid rule.
● Dubuc v. Copeland Paving, Inc., 2016 Westlaw 1230860 (Mich. Ct. App.), lv denied, 500 Mich. 921 (2016). Appellate co-counsel in case affirming summary disposition under Construction Lien Act and award of attorney fees for paving contractor.
● City of Dearborn v. Burton-Katzman Dvpmt. Co., 2014 Westlaw LEXIS 7212895 (Mich. Ct. App. 2014). Individuals and entities were wrongly denied summary disposition, and individuals wrongly threatened with contempt and jail, in $30-million commercial-construction dispute. Appellate court earlier had stayed contempt proceedings pending defendants' emergency interlocutory appeal.
● Jackson v. Sedgwick Claims Mgt. Servs., 731 F.3d 556 (6th Cir. 2013) (en banc); Brown v. Ajax Paving Industries, Inc., 752 F.3d 656 (6th Cir. 2014). Summary judgment for doctor and other defendants affirmed against RICO claims arising out of denial of workers-compensation benefits; loss or diminution of such benefits was not injury to "business or property," and Congress gave no clear statement that it intended the sweeping redistribution of state-federal authority that recognition of such claims would impose.
● BP1, L.L.C. v. Coventry Real Estate Fund II, L.L.C., 2014 Westlaw 4723146 (Mich. Ct. App. 2014), lv denied, 498 Mich. 883 (2015). No-cause verdict for defendant nationwide REIT and others affirmed on appeal in contract dispute seeking more than $200 million in damages.
● C.A. Hull Co., Inc. v. Dep't of Transportation, 2014 Westlaw 7338898 (Mich. Ct. App. 2014). Summary disposition for state reversed based on contract ambiguity and matter remanded to Court of Claims for trial on contractor's claims arising from painting of more than one mile of I-675 bridge.
● Holton v. Ward, 303 Mich. App. 718 (2014). Summary disposition affirmed for landowner in riparian property dispute; denial of sanctions reversed on cross-appeal and landowner awarded attorney fees for both trial court defense and on appeal.
● In re Byrne Estate, 2014 Westlaw 1233708 (Mich. Ct. App.), lv denied, 497 Mich. 903 (2014). JNOV affirmed in favor of longtime business manager and friend of decedent, against attempt by bank/personal representative to take $1.6 million gifted and bequeathed to her by decedent.
● T.R. Pieprzak Co., Inc. v. City of Troy, 2014 Westlaw 2881084 (Mich. Ct. App. 2014). Co-counsel for contractor; summary disposition for defendant-city affirmed in dispute arising from water and storm-sewer main replacement project.
● 1473219 Ontario Limited v. Alternative Aviation Servs., Inc., 2013 Westlaw 2295453 (E.D. Mich. 2013), stayed pending appeal (8/21/13 Order), dismissed on stipulation. As appellate counsel, obtained stay pending appeal from district court of its order permitting release of aircraft to Canadian owner in dispute over hundreds of thousands of dollars of repair/restoration work.
● Hani & Ramiz, Inc v. North Pointe Ins. Co., 494 Mich. 873 (2013). On emergency basis, Michigan Supreme Court reversed Court of Appeals and ordered case stayed pending insurer's appeal of adverse judgment in $2 million coverage dispute.
● United States v. Banks, 542 Fed. App’x 218 (4th Cir. 2013). Fourth Circuit found plain error and vacated and remanded finding that defendant violated terms of supervised release; sentencing court erroneously admitting hearsay without conducting inquiry required by Fed. R. Crim. P. 32.1.
● Schuette v. Coalition to Defend Affirmative Action,572 U.S. 291 (2014). Filed amicus curiae briefs in 6th Circuit and U.S. Supreme Court on behalf of four former attorneys of Department of Justice, Civil Rights Division, arguing that voter-approved Michigan Constitution provision barring use of racial preferences in university admissions does not violate Equal Protection Clause.
● Wayne County Employees Ret. Sys. v. Wayne County, 497 Mich. 36 (2014). Filed brief amicus curiae on behalf of nationwide association of public-pension funds in dispute over payment of annual "13th check."
● Gilardi v. United States, 733 F.3d 1208 (D.C. Cir. 2013), vacated and remanded, 134 S. Ct. 2902 (2014). Filed brief amicus curiae on behalf of Life Legal Defense Foundation in support of plaintiffs' challenge to contraceptive mandate of Affordable Care Act.
● Stryker Corp. v. XL Insurance America, 681 F.3d 806 (6th Cir. 2012). Filed brief amicus curiae on behalf of American Insurance Association urging court that under Erie doctrine, Michigan Supreme Court ruling on which District Court relied in disregarding aggregate liability limit under insurance policy was no longer valid statement of Michigan law on the issue.
● Whitesell Int'l Corp. v. Whitaker (On Recon), 2011 Westlaw 165405 (Mich. Ct. App.), lv denied, 490 Mich. 911, 805 N.W.2d 197 (2011). On reconsideration, Court of Appeals vacated its earlier ruling affirming a $9-million judgment for defendant/counter-plaintiff in antitrust and tortious-interference case, and held that the trial court reversibly erred in directing a verdict on a key trade-secret issue as the case was about to go to the jury after 25 days of trial. Lead appellate counsel for defendant/counter-plaintiff.
● Muti v. Univ. of Md. Med. Sys. Corp., 426 Md. 358, 44 A.3d 380 (2012). Filed amicus curiae brief on behalf of Maryland Defense Counsel, Inc., in case involving issue of statutory interpretation under state Wrongful Death Act.
● People of the State of Michigan v. Dean Scott Yanna, 297 Mich. App. 137 (2012). As co-counsel for amicus curiae Arming Women Against Rape and Endangerment (AWARE), assisted with brief arguing that Michigan's statutory ban on private stun-gun possession violates Second Amendment to U.S. Constitution and analogous state constitutional provision.
● Blake v. Baltimore County, Md., 439 Fed. Appx. 208 (4th Cir. 2011). Jury award of $225,000 in compensatory damages to undercover police detective for claim under medical-testing and inquiry provision of Americans with Disabilities Act affirmed; county failed to renew Rule 50 motion post-judgment and district court did not err in denying remittitur.
● Stone Computer, Inc. v. UAW-Chrysler National Training Center, 2010 Westlaw 1872922 (Mich. Ct. App. 2010). No-cause verdict for defendant in dispute over $2.2 million in computers affirmed; any error in the admission of evidence regarding settlement of prior lawsuit was harmless given plaintiff's failure to present evidence establishing claims for conversion or unjust enrichment.
● Singer v. Sreenivasan, 488 Mich. 893 (2010). Filed amicus curiae brief on behalf of Michigan Defense Trial Counsel urging Supreme Court to affirm Court of Appeals' interpretation of case-evaluation court rule awarding "reasonable attorney fee"; following oral argument by the parties, grant of leave vacated.
● Brightwell v. Fifth Third Bank of Michigan, 487 Mich. 151 (2010). Michigan Supreme Court overruled Barnes v. Int'l Business Machines Corp., 212 Mich. App. 223 (1995) and held that, for purposes of venue under the Elliott-Larsen Civil Rights Act, violation "occurs" when the discriminatory decision is made and the adverse employment action implemented. Co-counsel for defendant-bank.
● Ricci v. DeStefano, 557 U.S. 557 (2009). In white firefighters' challenge to city's refusal to certify promotional exam results, filed amicus curiae brief on behalf of Anti-Defamation League urging Court to require employers to have "strong basis in evidence" for fearing litigation in order to avoid Title VII/Equal Protection liability for race-conscious action.
● United States v. Randy Edward Hayes, 555 U.S. 415 (2009). Co-counsel for respondent; Court held 7-2 that predicate "misdemeanor crime of domestic violence" disqualifying one from firearm possession under 18 U.S.C. 922(g)(9) need not have as an element a domestic relationship between offender and victim.
● Township of Grosse Ile v. L. D'Agostini & Sons, Inc., Michigan Court of Appeals Docket No. 300226 (Order 11/22/10). Peremptory reversal obtained from appellate court of denial of township's motion for summary disposition based on governmental immunity.
● CMACO Automotive Sys., Inc. v. Wanxiang America Corp., 589 F.3d 235 (6th Cir. 2009). Summary judgment affirmed for auto parts maker on contract and other claims brought by supply partner; Michigan's borrowing statute required application of California's four-year contractual limitation period, rather than Michigan's six-year period.
● Atwater Entertainment Assocs., L.L.C. v. Doss, 2010 Westlaw 1629629 (Mich. Ct. App. 2010). Trial court abused its discretion in granting defendant summary disposition in declaratory-judgment action regarding casino membership units, since the parties' dispute met the "actual controversy" requirement.
● Butler v. Cooper Standard Automotive, Inc., 376 Fed. App’x 487 (6th Cir. 2010). Summary judgment affirmed for individual supervisor on plaintiff's claims for race discrimination, hostile work environment and retaliation.
● Dep't. of Revenue of Ky. v. Davis, 553 U.S. 328 (2008). Filed amicus curiae brief on behalf of 13 state-specific municipal-bond mutual funds urging Court to find that preferential income-tax treatment of in-state municipal bond interest does not violate the Commerce Clause.
● Progress Energy, Inc. v. Taylor, U.S. Supreme Court No. 07-539. Filed amicus curiae brief on behalf of two nationwide organizations representing human resource professionals, urging court to grant petition for certiorari to consider validity of private releases under Family and Medical Leave Act.
● In several class actions, obtained emergency interlocutory leave to appeal class-certification rulings and a stay of proceedings pending appellate review. Waldron v. Republic Svcs. of Michigan, Michigan COA Nos. 284253 and 290205 (order certifying class of thousands of residents near landfill peremptorily vacated; after class was re-certified, leave granted and appeal currently pending); Coponen v. Wolverine Pipe Line Co., Michigan COA No. 235692 (class of 1,200 evacuees from 71,000-gallon gasoline spill); Foulks v. Usher Oil Co., COA No. 258997 (thousands of residents within one-mile radius of oil-recycling facility); Agurs v. Diversified Distribution Sys., COA No. 231380 (class of 2,000 job applicants alleging discrimination based on gender, race, religion, disability and national origin).