e-Journal

The e-Journal provides summaries of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), the U.S. Sixth Circuit Court of Appeals (published).

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Cases appear under the following practice areas:

Contracts (1)
Criminal Law (5)
Immigration (1)
Litigation (2)
Native American Law (1)
Product Liability (1)
School Law (1)
Termination of Parental Rights (1)

Contracts

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This summary also appears under Litigation

Issues: Whether the parties' dispute was subject to arbitration; The Michigan Arbitration Act's (MAA) requirements for statutory arbitration; MCL 600.5001; MCL 600.5001(2); Distinguishing statutory arbitration from common-law arbitration; Wold Architects & Eng'rs v. Strat; MCL 600.5011; MCL 600.5025; Hetrick v. Friedman; Whether Wold overruled Hetrick; American Arbitration Association (AAA)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Rouleau v. Orchard, Hiltz & McCliment, Inc.

e-Journal Number: 53112

Judge(s): Per Curiam – Murphy, Sawyer, and Hoekstra

Concluding that Wold did not overrule Hetrick, and that Hetrick constituted binding precedent, the court held that the arbitration clause in the contract at issue had the necessary language to satisfy the statutory arbitration requirements. Thus, the court reversed the trial court's order denying defendant-OHM's motion to compel arbitration and its later order deciding the merits of the parties' dispute. The court remanded for dismissal of the case and submission of the parties' dispute to arbitration. In 2005, OHM and another corporation, Hitch, entered into a contract for the creation of a LLC to be named Hitch, LLC. Pursuant to the 2005 contract, Hitch would transfer all of its assets and liabilities to the LLC. The LLC would be partially owned by the former Hitch shareholders (40%) and partially owned by OHM (60%). Plaintiff was a shareholder of Hitch and continued to be a shareholder of the LLC. The 2005 contract included arbitration and indemnity clauses. In 2006, the parties entered into another a contract pursuant to which OHM became the sole owner of the LLC. Plaintiff continued to be employed by OHM until she voluntarily terminated her employment in 2007. She filed this case in 2010 after OHM requested that she indemnify it for costs associated with defending a lawsuit brought by a school district as to construction work allegedly negligently performed by Hitch in 2003. OHM asserted that pursuant to the indemnity clause in the 2005 contract, plaintiff was obligated to hold it harmless for the costs associated with the lawsuit. Plaintiff sued for declaratory judgment against OHM. The trial court held that the arbitration clause in the 2005 contract did not satisfy the MAA's requirements for statutory arbitration and thus, the clause constituted a common-law arbitration agreement revocable by either party. The trial court later ruled that plaintiff was not obligated to indemnify OHM. On appeal, OHM argued that the arbitration clause in the 2005 contract satisfied the MAA's requirements for statutory arbitration despite the fact that it did not contain language about judgment being entered by any court with jurisdiction because it incorporated the AAA's commercial arbitration rules. Plaintiff and the trial court cited Wold in support of the conclusion that the clause did not satisfy the requirements for statutory arbitration. OHM cited Hetrick in support of its claim that the clause should be considered a statutory arbitration agreement. The court noted that like the arbitration agreement in Hetrick, the agreement in this case stated - "Any dispute arising under this contract shall be resolved under the commercial arbitration rules of the American Arbitration Association." Further, Rule 48(c) of the AAA Commercial Arbitration Rules provides - "Parties to an arbitration under these rules shall be deemed to have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof." Thus, under Hetrick, the arbitration clause here satisfied the requirements for statutory arbitration because it incorporated the AAA rules. The court rejected plaintiff's argument that Wold overruled Hetrick, and concluded that Wold was distinguishable from Hetrick because the arbitration clause in Wold did not explicitly incorporate the AAA rules as the agreement in Hetrick did.

Full Text Opinion

Criminal Law

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Issues: Whether the defendant-husband was entitled to information as to the parties' finances and the plaintiff-wife's business holdings that was contained on HER computer; Shinkle v. Shinkle (On Rehearing); Maldonado v. Ford Motor Co.; MCR 2.302(B)(1); MCR 2.302(B)(5); MCR 2.302(C)(2)-(4) & (8); Woodington v. Shokoohi; Findings of fact as to the value of marital property; Sparks v. Sparks; Olson v. Olson; Cunningham v. Cunningham; Spousal support; MCR 3.211(D)(1); Friend v. Friend; Whether the trial court applied the correct standard, when awarding the dog; Koester v. VCA Animal Hosp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Aho v. Aho

e-Journal Number: 53055

Judge(s): Per Curiam – Murphy, Sawyer, and Hoekstra

The court held, inter alia, that the trial court did not abuse its discretion or deny the defendant-husband his right to discovery when it imposed a reasonable condition on computer access to protect the confidential information of third parties. Defendant contended that he was entitled to information as to the parties' finances and the plaintiff-wife's business holdings that was contained on her computer. Defendant had gained physical possession of the computer however, plaintiff alone knew the password. Plaintiff indicated that, as to her work as a registered financial representative, she was required to password protect her computer by the Securities and Exchange Commission and that the disclosure of a client's financial information could subject her to sanctions. She stated that the computer contained "a backup of . . . our personal stuff," and that "as long as I could erase my client files, [defendant] can have whatever else is on there." The trial court stated repeatedly that it was concerned about protecting the confidentiality of financial information as to third parties. The trial court did not rule that the information on the computer was not discoverable. Rather, it ruled that "the information [defendant is] looking for can be requested" and "if that information is on that computer, [defendant is] entitled to have that data, but not to have access to everything." The trial court ruled that defendant had the option of returning the computer to plaintiff so that she could retrieve the parties' discoverable information from it and then pass it on to him, but the trial court would not compel plaintiff to divulge the password, which would have given defendant unlimited access to information on the computer. "Defendant failed to exercise the option of returning the computer to plaintiff." The trial court further noted that the information sought by defendant was also covered in his interrogatories to plaintiff, and defendant failed to even argue on appeal that plaintiff's answers to interrogatories were insufficient. "The trial court placed a valid condition on discovery to protect the confidential financial information of third parties that was stored on the computer as a result of plaintiff's work as a registered financial representative." The court concluded that the trial court did not deny defendant the opportunity to discover the information he was seeking. The judgment of divorce was affirmed, but the case was remanded for clarification as to whether the award of spousal support was periodic or in gross.

Full Text Opinion

Issues: Right to present a defense; U.S. Const. Amend. XIV; Right to confront witnesses; U.S. Const. Amend. VI; People v. Unger; Relevance of "speculative" evidence; People v. Diaz; Trial court's discretion to limit cross-examination; People v. Sammons; MRE 611(a); Police duty to investigate; People v. Johnson; People v. Stiles; Whether police have a duty to seek and find exculpatory evidence; People v. Burwick; People v. Sawyer; People v. Miller (After Remand); People v. Traylor; People v. Coy; Foundation to admit evidence; People v. Jordan; Sufficiency of evidence; People v. Eriksen; Deference to trial court's evaluation of witness credibility; People v. Sexton (After Remand); Holmes Youthful Trainee Act (HYTA); MCL 762.1; Sentencing; Statutory interpretation; Haynes v. Neshewat; Whether a conviction under the HYTA should be counted PRVs 1 through 5; MCL 777.50(4)(a)(i); People v. Garner; Scoring errors; People v. Bonilla-Machado

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Allen

e-Journal Number: 53056

Judge(s): Per Curiam - Murray, Cavanagh, and Stephens

The court held that the defendant was not denied his constitutional right to present a defense, confront witnesses, or due process, and that there was sufficient evidence against him. However, it found that the trial court erred in sentencing. Thus, the court affirmed defendant's convictions for carjacking, armed robbery, felonious assault, and felony-firearm, but vacated his sentences (except for the felony-firearm conviction), and remanded for resentencing. The court rejected defendant's argument that the trial court's denial of his request that the victim put on, during trial, the pants and shorts he was wearing when defendant shot at him. It agreed with the trial court that the nature of the material, and the human elements that could have impacted trying on the clothing months after it was worn during the crime, could have caused the fact-finder to speculate about whether the clothing ever actually fit or was worn on the day of the crime. It also noted that evidence that could cause speculation about what actually occurred is not relevant and therefore not an abuse of discretion to exclude the evidence from the fact-finder's consideration. Further, it found that the trial court's denial of this motion protected the victim from undue embarrassment therefore, it was not an abuse of the court's discretion. Lastly, the court held that here was ample evidence from which the trial court could determine the credibility of the victim's testimony and whether he was actually shot at by defendant. The court also rejected defendant's argument that he was denied due process because the police failed to properly investigate the crime and the prosecutor did not introduce any evidence that verified the alleged victim's and his cohorts' allegations. The court held that defendant made no showing, and there was no evidence on the record, that the prosecution or the police suppressed evidence, engaged in intentional misconduct, or acted in bad faith. The court also held that defendant did not even suggest what evidence could have been revealed had further investigation been made. The court next rejected defendant's argument that there was insufficient evidence to support his convictions, finding that, in addition to the victim's and officer's testimony, there was other competent evidence introduced to prove that defendant shot at the victim. Finally, the court held that the trial court erred as a matter of law when it determined that defendant's conviction under the HYTA should not be counted when scoring PRVs and OVs for purposes of determining the sentencing guidelines range.

Full Text Opinion

Issues: Motion to suppress the defendant's statements to police; Whether defendant was "in custody"; People v. Coomer; The trial court's factual findings; People v. Sexton (After Remand); MCR 2.613(C); Length of the interview; Effect of the fact the interview was conducted by a police officer in a police station; People v. Mendez; Effect of the fact there was no video or audio of the vehicle stop; People v. Fike; People v. Davis

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. El Fechtali

e-Journal Number: 53113

Judge(s): Per Curiam – Murphy, Sawyer, and Hoekstra

The court held that the troopers' repeated statements that the defendant was free to leave and was not under arrest, defendant's presence in an area of the police station generally open to the public and in a room that did not lock, his freedom of movement at all times, and his ability to use his cell phone at any time belied the trial court's conclusion that he was in custody. Thus, the court reversed the trial court's order granting his motion to suppress his police statements and remanded the case for further proceedings. The court concluded that the trial court clearly erred as to "multiple findings of fact" and also made "multiple errors" in its conclusions of law. Defendant, a 40-year old resident of Canada, was originally from Morocco but moved to Canada in 2003 and obtained Canadian citizenship in 2007. He spoke French fluently as a second language and English was his third language. He has a B.A. degree in English with an "option" in linguistics from a university in Morocco. Defendant was charged with attempted kidnapping-child enticement and accosting and soliciting a child for immoral purposes. The court first noted that the trial court determined that "[a]t no time did the Defendant attempt to leave, ask to leave, or give any indication that he thought he was free to leave. He remained seated throughout the entire interview/interrogation process." It was not clear whether the trial court was concluding that defendant never asked to leave the police station, but it was clear that he asked to use the restroom, left the interview room for a period of time, returned to the room unaccompanied, and then kneeled down and prayed in the corner before sitting back in his chair. The trial court also stated that after the initial police stop, defendant was kept outside his car "for a considerable period of time, without jacket or gloves." However, defendant testified that he was kept outside without gloves or hat, but no one testified that he did not have his jacket. The trial court also found that "[t]hroughout the interview it is apparent that [defendant] is struggling to understand the nature of the questioning, in large part, in the Court's opinion, due to his lack of understanding of our language, its phrases, jargon, or nuances." The court concluded that the record did not support this conclusion. While there were some words that defendant did not understand, each time he asked what a word meant, the interviewing officer was able to describe it in a manner that defendant apparently could understand. Further, he immediately understood the term "hooking up" when it was used, which indicated he had "a greater comprehension of the English language than the trial court gave him credit for." As to errors of law, the court concluded that the trial court used the standard for "voluntariness" instead of custody in making its ruling. The "key question" in determining whether a defendant was "in custody" is whether defendant "reasonably could have believed that he was not free to leave." The court concluded that even if defendant's testimony was credible, the trial court erred by giving any weight to his subjective beliefs. The court also noted that "lengthy interviews do not necessarily render a person in custody." Also, the fact that the interview was conducted by a police officer in a police station was not dispositive of defendant being in custody.

Full Text Opinion

Issues: Double jeopardy; People v. Echavarria; Implied waiver of double jeopardy; People v. Gavel; Double jeopardy based on intentional conduct; People v. Dawson; Oregon v. Kennedy; Remand to a different judge; Bayati v. Bayati

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. January

e-Journal Number: 53064

Judge(s): Per Curiam - O'Connell, Donofrio, and Beckering

The court held that the trial court erred in dismissing charges against the defendant on the basis of double jeopardy because its determination that the prosecutor goaded defendant into moving for a mistrial and that retrial was barred was clear error. Defendant was charged with second-degree murder and second-degree child abuse following the death of his girlfriend's three-month old daughter. During a break at trial, a juror overheard the prosecutor tell her supervisor that defendant had "lied through his teeth" during his testimony, a statement the juror relayed to the other jurors. The trial court declared a mistrial, then granted defendant's motion to bar retrial based on double-jeopardy on the grounds that the prosecutor intentionally made the statement, knowing the juror would hear it, in order to goad defense counsel into moving for a mistrial. On appeal, the court agreed with the prosecution that the trial court erred in its ruling, noting that several of the trial court's findings were clearly erroneous. First, it noted that the trial court's finding that the prosecutor recognized the juror as a juror presupposed that she actually saw the juror in the hallway. Second, it noted that the record did not show that the juror was in the hallway when the prosecutor approached. Third, it determined that the circumstances were "too tenuous to reasonably conclude" that the prosecutor intentionally made the statement in front of the juror in order to provoke a mistrial. Finally, the court found that the trial court's denial of the rebuttal witness was not significant enough to cause the prosecutor to provoke a mistrial. Thus, the court concluded that the prosecutor did not intentionally goad defense counsel into moving for a mistrial because her actions were not intentional, she did not have significant motivation to cause a mistrial, and, although she did not object to the mistrial, it was clear from the record that she was apologetic when the trial court declared a mistrial and was not content or satisfied by that result. The court remanded the case for retrial before a different judge, noting that all the considerations for remand to a new judge were met, and finding that it was warranted because the trial court manifested bias against the prosecutor. Reversed and remanded for a new trial before a different judge.

Full Text Opinion

Issues: Sentencing; Whether due process required the court to remand the case to the trial court for correction of documents that allegedly improperly and inaccurately indicated that defendant was a second-habitual offender; MCL 769.13; MCL 769.13(5)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Meyer

e-Journal Number: 53068

Judge(s): Per Curiam – Murphy, Sawyer, and Hoekstra

The court remanded for purposes of having the trial court determine whether the defendant was a second-habitual offender, with the various court documents then being amended, if necessary, in accordance with the ruling. MCL 769.13(5) required the trial court to determine the issue and there was no specific determination made by the trial court. In the felony information, the prosecution set forth the two counts upon which defendant was eventually convicted along with an "habitual offender - second offense notice" related to an alleged prior drug conviction. At the sentencing hearing, the trial court failed to expressly address the habitual-offender notice, and the judgment of sentence was also silent as to the matter. The PSIR indicated that defendant was a second-habitual offender, and the minimum sentence guidelines range was calculated on the basis of that status. Defense counsel indicated at sentencing that there were no objections to the PSIR and the enhanced guidelines range. Despite the absence of a ruling on the prosecution's habitual-offender notice, various court documents (the appeal and appellate counsel form) included notations reflecting that defendant was a second-habitual offender. On appeal, she argued that due process required the court to remand the case to the trial court for correction of documents that improperly and inaccurately indicated that she was a second-habitual offender. Defendant contended that correction was necessary as the trial court did not rule, nor did the judgment of sentence reflect, that she was a second-habitual offender. MCL 769.13 addresses a prosecutor's notice of intent to seek an enhanced sentence based on prior felony convictions as provided in MCL 769.10 (second habitual), MCL 769.11 (third habitual), and MCL 769.12 (fourth habitual). MCL 769.13(5) provides that "[t]he existence of the defendant's prior conviction or convictions shall be determined by the court, without a jury, at sentencing, or at a separate hearing scheduled for that purpose before sentencing." The court held that defendant's argument was misplaced, where it improperly treated "the trial court's silence or failure to expressly make a determination that defendant is a second-habitual offender and failure to include such a finding in the judgment of sentence as a definitive and affirmative ruling that she indeed is not a second-habitual offender." Given the trial court's acknowledgment and defendant's affirmative approval of the PSIR and guidelines range, which both referred to her as a second-habitual offender, the court was initially tempted to remand simply for clerical correction of the judgment of sentence to show that she was a second-habitual offender, since this conclusion or finding could be implied or assumed from the sentencing proceedings. However, the court noted that it did not wish to improperly intrude on the trial court's authority.

Full Text Opinion

Immigration

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Issues: The United Nations Convention Against Torture (CAT); 8 CFR §§ 1208.16(c) & 1208.17; Whether petitioner had a "well-founded fear of persecution" because her daughters would likely be subjected to female genital mutilation (FGM) if they returned with her to Senegal; Abay v. Ashcroft; Grant of asylum; 8 USC §§ 1101(a)(42)(A) & 1158(b)(1)(B)(i); Pilica v. Ashcroft; Cruz-Samayoa v. Holder; Possibility of persecution; INS v. Cardoza-Fonseca; Maypouya v. Gonzales; Hussein v. Holder (Unpub. 6th Cir.); Ghanim v. Holder (Unpub. 6th Cir.); State Department reports; Mullai v. Ashcroft; FGM as the basis of a successful asylum claim; Niang v. Gonzales (4th Cir.); Hassan v. Gonzales (8th Cir.); Bah v. Gonzales; Abebe v. Gonzales (9th Cir.); Whether it was more likely than not that petitioner would face persecution; Gomis v. Holder (4th Cir.); Seck v. U.S. Atty. Gen. (11th Cir.); Burden of proof for withholding of removal; Lin v. Holder; Asylum based on threat of FGM to petitioner's child; In re A-K (BIA); Sinayoke v. Holder (Unpub. 2nd Cir.); Kone v. Holder (7th Cir.); Kane v. Holder (5th Cir.); Hounmenou v. Holder (8th Cir.); Individualized assessment; Ashafi v. Holder (Unpub. 6th Cir.); Chand v. INS (9th Cir.)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Dieng v. Holder

e-Journal Number: 53159

Judge(s): Griffin, Norris, and Sutton

The court held that the petitioners were not entitled to review of the BIA's final order of removal, denying their applications for asylum, withholding of removal, and protection under the CAT because "reasonable and substantial evidence" supported the BIA's finding that petitioner-Dieng did not harbor a well-founded fear of persecution for herself or her daughters based on the prospect of being subjected to FGM in Senegal. Petitioners filed an affirmative asylum application. The U.S. Citizenship and Immigration Service denied the application and placed petitioners in removal proceedings. Petitioners then appeared before an IJ alleging persecution on the basis of Dieng's membership in a particular social group/tribe, which practices FGM. The IJ issued an oral decision finding petitioners removable as charged and denying all relief. The BIA also denied petitioners' applications for asylum and withholding of removal, and found no evidence to support their claim for relief under the CAT. On appeal, the court rejected petitioners' argument that the BIA erred in finding that the government rebutted the presumption of a well-founded fear of future persecution. The court held that substantial evidence supported the BIA's conclusion that Dieng's personal circumstances had changed, such that her fear of FGM in the future was "neither subjectively genuine nor objectively reasonable." The court also rejected her claim of direct persecution based on her fear that her daughters would be circumcised if they accompanied petitioners to Senegal. It held that, based on the record, the BIA's conclusion that Dieng did not prove her direct persecution claim on the basis of her fears for her daughters was supported by reasonable and substantial evidence.

Full Text Opinion

Litigation

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This summary also appears under Product Liability

Issues: Choice of law; Sexton v. Ryder Truck Rental, Inc.; Farrell v. Ford Motor Co.; Olmstead v. Anderson; Sutherland v. Kennington Truck Serv., Ltd.; Hall v. General Motors; Whether the trial court correctly held that Ohio law applied to the plaintiffs' claims; Whether the place of the accident (Ohio) was "fortuitous" as used in Olmstead; Whether Michigan's interests mandated that Michigan law be applied; Effect of the fact one of the defendants (the injured plaintiff's employer's worker's compensation carrier) was a Michigan company; Yerkovich v. AAA; Whether defendant-McNeilus "consented" to the application of Michigan law by not raising the "affirmative defenses" of lack of personal jurisdiction or forum non conveniens; Allstate Ins. v. Hague

Court: Michigan Court of Appeals (Unpublished)

Case Name: Mitchell v. McNeilus Truck & Mfg., Inc.

e-Journal Number: 53047

Judge(s): Per Curiam – Owens and Boonstra; Dissent – Gleicher

The court held that the trial court correctly ruled that Ohio law applied to the case. "The only contacts Michigan had with the accident were the registration, licensing, plating, and garaging of the truck that was involved in an accident in Ohio involving an Ohio resident and an allegedly defective rear loader designed and manufactured in Minnesota." The court concluded that Michigan's interest in having its law apply to plaintiffs' product liability action was "minimal," and Ohio's interest was strong. The court also rejected plaintiffs' claim that defendant-McNeilus consented to the application of Michigan law because it did not contest personal jurisdiction or move for a more convenient forum. Thus, the court affirmed the trial court's order holding that Ohio law applied, Ohio's statute of repose barred plaintiffs' claim, and McNeilus was entitled to summary disposition pursuant to MCR 2.116(C)(7). The injured plaintiff was employed by a non-party (Allied) as a refuse driver. Allied's facility was located in Michigan, approximately one-half mile from the Ohio border. A majority of Allied's residential customers were located in Ohio. Testimony indicated that 90% of the customers on the injured plaintiff's route were located in Ohio. He was severely injured while he was operating a garbage truck equipped with a "rear XC loader," a device for picking up and emptying dumpsters into the back of the truck. He alleged that a dumpster swung around the side of the truck while he was trying to secure it, causing severe injury. McNeilus, a corporation domiciled in Minnesota, designed the rear XC loader and sold loaders and trucks nationwide. McNeilus sold the truck and loader at issue to Allied's predecessor in 1995. McNeilus is a wholly-owned subsidiary of defendant-Oshkosh Specialty Vehicles, a Wisconsin corporation. Defendant-Illinois National Insurance was Allied's Michigan worker's compensation carrier. Plaintiffs alleged a product liability claim against McNeilus and Oshkosh and sought a declaratory judgment as to the validity and value (if any) of Illinois National's subrogation lien (Illinois National paid worker's compensation benefits and alleged a lien over the injured plaintiff's recovery from third parties). The court rejected plaintiffs' argument that the place of the accident was "fortuitous" as used in Olmstead and thus, that Ohio had no interest in having its law applied. "Ohio has an interest in an accident that occurred within its borders and injured one of its citizens." Further, the court held that pursuant to Hall and Farrell, Ohio had an interest in having its statute of repose applied to plaintiffs' claim. The court also concluded that Michigan's interests did not mandate that Michigan law be applied despite Ohio's interest. "Michigan has no interest in providing greater rights of tort recovery to a nonresident than those afforded to that resident by his or her home state." Further, plaintiffs' arguments as to Illinois National were unpersuasive. "The fact that the law of the jurisdiction where the accident occurred and the plaintiff resides forecloses one possible avenue of recovery for a Michigan worker's compensation carrier is not sufficient reason to apply Michigan law despite the foreign state's interest, especially in light of Michigan's lack of interest in providing greater recovery to nonresident tort plaintiffs than their home jurisdictions provide."

Full Text Opinion

This summary also appears under Contracts

Court: Michigan Court of Appeals (Unpublished)

Case Name: Rouleau v. Orchard, Hiltz & McCliment, Inc.

e-Journal Number: 53112

Judge(s): Per Curiam – Murphy, Sawyer, and Hoekstra

Full Text Opinion

Native American Law

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This summary also appears under Termination of Parental Rights

Issues: Whether the trial court properly denied the intervenor-appellant Nottawaseppi Huron Band of Potawatomi Indians' (NHBPI) motion to intervene and correctly ordered the adoption of the minor child by appellee-DeBacker; Whether the trial court properly ruled that the Indian Child Welfare Act (ICWA)(25 USC § 1901 et seq.) did not apply because ENM was not an "Indian child" within the meaning of the act; Whether the various tribes received notice; Whether the trial court properly held that the NHBPI had no standing to intervene; The petitioner's petition to adopt the minor child; Testimony from the "enrollment specialist for NHBPI; In re Morris; Joseph v. Auto Club Ins. Ass'n; Nielson v. Ketchum (10th Cir.)

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re ENM

e-Journal Number: 53179

Judge(s): Per Curiam - Saad, Whitbeck, and M.J. Kelly

The court held that the trial court, citing Nielson, properly ruled that intervenor-NHBPI "has no authority to make a determination for ICWA purposes while retaining the right to make a separate determination for actual membership into the tribe." The trial court also ruled that, because enrollment in the NHBPI tribe was closed, no one, including the child (ENM), was eligible for membership at the present time and that "[t]he clear meaning of 'is' does not include being eligible at some time in the future . . . ." Thus, the trial court ruled that ENM was not an "Indian child," the ICWA did not apply, and NHBPI could not intervene in the adoption proceeding. ENM was born on 1/7/11. The trial court terminated the rights of her father on 6/15/11, and terminated the parental rights of her mother (M) on 7/7/11. M appealed the order and the court affirmed. The court described the repeated abuse ENM endured at the hands of her parents, which resulted in severe burns, injuries to her upper lip, and several fractures. Appellee-DeBacker began to care for the child almost immediately after she was removed from the parents' home. During the initial termination proceedings, the trial court learned that ENM might be an Indian child and ordered the DHS to provide notice to various tribes and to otherwise follow the criteria under the ICWA. The trial court also called an Indian expert to testify as to the removal and placement of ENM. No family members agreed to act as a permanent placement for the child and other Indian tribes indicated that they had no affiliation with ENM. NHBPI was aware of the termination proceedings by 6/14/11, but evidence failed to show ENM was an Indian child for purposes of the ICWA. ENM was not a member of an Indian tribe and neither were her parents. NHBPI did not make any showing that ENM was an Indian child and acknowledged that enrollment in the tribe was closed. The trial court then terminated the parents' parental rights under state law. On 11/2/11, DeBacker filed a petition to adopt ENM. She was unrelated to the parents and is not Indian, but cared for ENM since her removal from the parents' home at three months old. By all accounts the child was thriving and continuing to heal from the injuries inflicted by her parents. The trial court held a hearing on DeBacker's petition and formally consented to the adoption. However, before the hearing to finalize the adoption, NHBPI submitted a statement showing that after the parents' parental rights were terminated, M enrolled as a member of the Saginaw Chippewa Indian Tribe on 8/2/11. NHBPI claimed that ENM qualified as an Indian child for purposes of the ICWA. Thus, NHBPI claimed that ENM was eligible for enrollment in the tribe. Further, it was claimed that M's half-sister, also a member of the Saginaw Chippewa Indian Tribe, expressed a willingness to adopt ENM. NHBPI did not serve DeBacker with its notice of intent to intervene. On 4/11/12, the trial court issued its written opinion and order setting forth the history of the proceedings. The court also found Nielson persuasive, and agreed with thetrial court's "thorough and well-reasoned opinion" holding that the ICWA did not apply. Affirmed.

Full Text Opinion

Product Liability

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This summary also appears under Litigation

Court: Michigan Court of Appeals (Unpublished)

Case Name: Mitchell v. McNeilus Truck & Mfg., Inc.

e-Journal Number: 53047

Judge(s): Per Curiam – Owens and Boonstra; Dissent – Gleicher

Full Text Opinion

School Law

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Issues: Whether the 180-day suspension violated the plaintiff-student's due process rights; Whether there was notice that a 180-day suspension would result from a simple assault; MEEMIC Ins. Co. v. DTE Energy Co.; Henry Ford Health Sys. v. Esurance Ins. Co.; Davis v. Hillsdale Cmty. Sch. Dist.; Birdsey v. Grand Blanc Cmty. Sch.; MCL 380.1310(1); MCL 380.1312(8)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Stansky v. Gwinn Area Cmty. Schs.

e-Journal Number: 53102

Judge(s): Per Curiam – Murphy and Sawyer; Dissent – Hoekstra

The court held that adequate notice of a 180-day suspension was provided because the statutes and school board policies specifically allow up to a 180-day suspension for assault, and the handbook allows an administrator to adjust the length of a suspension based on circumstances and the best interests of the school community. Also, the court held that, based on the wide latitude and great deference that is to be given school authorities when formulating and interpreting school policies, defendants' actions were neither arbitrary nor capricious and the 180-day suspension was a reasonable use of the school authorities' power and discretion to maintain order and decorum in the school. Thus, the court held that the trial court properly granted summary disposition for defendants. An extreme bullying incident occurred between the plaintiff-student and another ninth grade student. The two boys were in the locker room after gym class when the other boy threw a toothbrush that hit a locker next to plaintiff. Plaintiff picked up the toothbrush and chased the other boy into the bathroom stalls where he fell and cut his hand, sustaining a two-inch gash in his hand. During the incident and while the other student was on the ground in the bathroom stall, plaintiff shoved the toothbrush at him. Plaintiff picked up the toothbrush and said, "I'm going to stick this up your butt." The toothbrush touched the victim's testicles as plaintiff shoved it at him. Following an investigation, the school determined that plaintiff's actions were intentional and not a manifestation of his educational disability. Plaintiff did not dispute that his actions met the definition of assault. Plaintiff was suspended for 180 days with the opportunity to be reinstated after 90 school days if certain conditions were met. Plaintiff's parents appealed the decision on several grounds, including that the student handbook indicated that each assault would result in a suspension of 5 to 10 days and possible referral for expulsion. The school board unanimously upheld the original suspension. Plaintiff filed suit alleging that the 180-day suspension violated his due process rights because it was arbitrary, unreasonable, and contrary to the published student handbook such that he had no notice of this severe consequence. If a student in sixth grade or above commits a physical assault against another student the school board "shall suspend or expel the pupil from the school district for up to 180 school days." A school district "shall develop and implement a code of student conduct and shall enforce its provisions with regard to pupil misconduct . . . ." Similarly, the school board administrative policy § 5610.02 states that "[t]he Board shall suspend or expel a student in grade six or above for up to 180 school days if the student commits physical assault at school against another student." The administrative policy § 5110 also states that "[t]he guidelines and procedures by which students are to function while attending school in the District are to be contained in one (1) or more student handbooks." The student handbook contains a section titled "student rights & responsibilities/cause effect discipline code," which contains the definition and effect of assault. At the end of the student rights & responsibilities/cause effect discipline code section of the handbook is a sub-section titled "suspensions and expulsions procedures." Plaintiff claimed that defendants arbitrarily deviated from the handbook's disciplinary code, and that there was no notice that a 180-day suspension would result from a simple assault. Thus, according to plaintiff, the arbitrary nature of defendants' conduct is a de facto violation of due process. Affirmed.

Full Text Opinion