Whether defendant breached the Investment Company Act (ICA) (15 USC § 80a-1 et seq.) by charging “excessive advisory fees” for advice on mutual funds; § 80a-35(b)(1)–(2) (referred to as § 36(b)); Jones v. Harris Assocs. L.P. (Jones II); Gartenberg v. Merrill Lynch Asset Mgmt., Inc. (2d Cir.); Jones v. Harris Assocs. L.P. (Jones III) (7th Cir.); Gallus v. Ameriprise Fin., Inc. (8th Cir.); Pirundini v. J.P. Morgan Inv. Mgmt. Inc. (SD NY); Migdal v. Rowe Price–Fleming Int’l, Inc. (4th Cir.)

The court held that defendant-J.P. Morgan Investment Management (JPMIM) was entitled to summary judgment on plaintiffs-shareholders’ claim that it breached its fiduciary duty under § 36(b) of the ICA where there was no question of fact that their adviser fees were not excessive. To succeed on § 36(b) claims, “a shareholder must prove that the challenged fee ‘is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm’s length bargaining.’” The court compared the fees charged to plaintiffs’ Funds with fees JPMIM charged other Funds for which it acted as “adviser.” The court noted that plaintiffs suggested as comparators Funds for which JPMIM acted as “subadvisers.” Applying the standard in Gartenberg, the court agreed with the district court’s ruling that plaintiffs’ Funds were “not comparable to the Subadvised Funds but are comparable to certain other mutual funds that realized similar performance.” JPMIM established that “the responsibilities JPMIM has as adviser to the Funds are different from those it has as subadviser to the Subadvised Funds, as are the associated risks.” Additionally, it showed that “compliance responsibilities” in subadviser situations “are generally lesser in scale and scope than the fund’s adviser’s compliance responsibilities.” Plaintiffs contended that whether the fee disparity was justified based on the provision of additional services constituted a fact question, precluding summary judgment. The court disagreed. Applying the other Gartenberg factors, it agreed with the district court that “JPMIM’s fees are in line with those of their peer groups; and . . . JPMIM provided a better than average rate of return than the peer groups once expenses (including advisory fees) are taken into account.” It also held that “the economies-of-scale factor weighs strongly against” plaintiffs. Thus, the court affirmed summary judgment for JPMIM.

Unlawful retaliation under the Elliott-Larsen Civil Rights Act (ELCRA) (MCL 37.2101 et seq.); MCL 37.2701(a); Meyer v. City of Ctr. Line; Causation; Barrett v. Kirtland Cmty. Coll.; Rymal v. Baergen; Direct evidence; Hazle v. Ford Motor Co.; Cuddington v. United Health Servs., Inc.; Indirect evidence; Debano-Griffin v. Lake Cnty.; Burden-shifting framework; McDonnell Douglas Corp. v. Green; The law of the case doctrine; Grievance Adm’r v. Lopatin; Webb v. Smith; Duncan v. Michigan

Assuming that plaintiff made out a prima facie case of retaliation in violation of the ELCRA, the court concluded that defendant-former employer provided legitimate, nonretaliatory reasons for its compensation decisions and supported them with evidence, and plaintiff failed to show that they were pretextual. Thus, it affirmed summary disposition for defendant. Plaintiff first argued on appeal that the trial court’s rulings as to “the statute of limitations, protected activity, causation, and collateral estoppel were all precluded by” the court’s prior decision in the case. He invoked the law of the case doctrine, asserting “that the previous panel determined that his retaliation claim in the amended complaint was not futile and presented a jury question.” But the court found that, given it had “ultimately determined that a summary disposition motion could be pursued on remand, which would necessarily encompass a challenge regarding the merits of the retaliation claim, the law of the case doctrine did not preclude the trial court’s various rulings that summarily rejected the substance of the retaliation claim.” Turning to the elements of a prima facie retaliation claim, the court concluded that the only issue it had to address was causation. Defendant produced evidence that its determinations as to plaintiff’s compensation were based “on business assessments and criticisms of his performance.” Plaintiff pointed “to a litany of evidence that he claims constituted direct and indirect evidence of retaliation and established that defendant’s reasons were pretextual.” However, the court “scoured and scrutinized this evidence and, as a matter of law, it simply did not constitute direct evidence of retaliation, nor did it indirectly reflect that retaliation was a motivating factor for defendant’s compensation decisions. Plaintiff failed to demonstrate, as a matter of law, that the business and performance-related reasons for defendant’s compensation decisions had no basis in fact, were not the actual factors motivating the decisions, or were insufficient to justify the decisions.”

Whether defendants-social workers were entitled to qualified immunity on plaintiffs’ Fourth Amendment claim; Kovacic v. Cuyahoga Cnty. Dep’t of Children & Family Servs.; Pearson v. Callahan; White v. Pauly; City & Cnty. of San Francisco v. Sheehan; Ashcroft v. al-Kidd; Kisela v. Hughes; Plumhoff v. Rickard; Guertin v. State; Hope v. Pelzer; Warrantless in-school interviews; Barber v. Miller; Andrews v. Hickman Cnty.; Safford Unified Sch. Dist. No. 1 v. Redding; Doe v. Heck (7th Cir.); A seizure; O’Malley v. City of Flint; United States v. Mendenhall; Jones v. Hunt (10th Cir.); The “special needs” exception to the warrant requirement; Griffin v. Wisconsin; New Jersey v. T.L.O.; Snell v. Tunnell (10th Cir.); Whether the law governing in-school interviews by social workers was clearly established at the time of defendants’ conduct; Camreta v. Greene; Fourteenth Amendment procedural & substantive due process claims; County of Sacramento v. Lewis; Bartell v. Lohiser; Kottmyer v. Maas; Mathews v. Eldridge; Quilloin v. Walcott; Lassiter v. Department of Soc. Servs.; Stanley v. Illinois; Cleveland Bd. of Educ. v. LaFleur; Troxel v. Granville; Prince v. Massachusetts; Smith v. Williams-Ash; Dupuy v. Samuels (7th Cir.); The Parratt-Hudson doctrine; Hudson v. Palmer; Parratt v. Taylor; Zinermon v. Burch

While the court held that the Fourth Amendment governs a social worker’s in-school interview of a child pursuant to a child abuse investigation, and that defendants-social workers violated the Constitution by questioning the children without a “reasonable suspicion” of child abuse, it reversed the denial of qualified immunity on plaintiffs’ Fourth Amendment claims. Defendants were still entitled to qualified immunity because the law governing warrantless, in-school interviews by social workers was not clearly established at the time of their conduct. But the court affirmed the denial of qualified immunity on plaintiffs’ Fourteenth Amendment procedural and substantive due process claims. Plaintiffs alleged that social workers who worked for the Kentucky Health and Family Services “violated their Fourth Amendment rights by subjecting four of the children to warrantless in-school interrogations without reasonable suspicion of child abuse.” The district court denied defendants qualified immunity on this issue. The court held that they violated the Fourth Amendment where they lacked “‘some definite and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse’ before seizing a child from his or her school classroom without a warrant and when no other exception to the warrant requirement applies.” Additionally, there was “a genuine factual dispute as to whether a reasonable child in Plaintiffs’ position would have felt free to leave the interview.” The court concluded that “viewing the evidence in the light most favorable to Plaintiffs, a reasonable jury could find that Defendants’ seizure of Plaintiffs was not ‘justified at its inception[]’” where the social workers had no “plausible suspicion” of child abuse or neglect. However, defendants were still entitled to qualified immunity where the “Fourth Amendment right to be free from the in-school interviews that occurred” was not clearly established at the time the interviews took place. The court affirmed the district court’s ruling that defendants were not entitled to qualified immunity on plaintiffs’ Fourteenth Amendment due process claims for preventing plaintiff-mother from being alone with her children for two months without procedural protections such as a hearing, and for violating their rights to “family integrity and association without interference from the state[.]” Remanded.

Whether defendants-social workers were entitled to qualified immunity on plaintiffs’ Fourth Amendment claim; Kovacic v. Cuyahoga Cnty. Dep’t of Children & Family Servs.; Pearson v. Callahan; White v. Pauly; City & Cnty. of San Francisco v. Sheehan; Ashcroft v. al-Kidd; Kisela v. Hughes; Plumhoff v. Rickard; Guertin v. State; Hope v. Pelzer; Warrantless in-school interviews; Barber v. Miller; Andrews v. Hickman Cnty.; Safford Unified Sch. Dist. No. 1 v. Redding; Doe v. Heck (7th Cir.); A seizure; O’Malley v. City of Flint; United States v. Mendenhall; Jones v. Hunt (10th Cir.); The “special needs” exception to the warrant requirement; Griffin v. Wisconsin; New Jersey v. T.L.O.; Snell v. Tunnell (10th Cir.); Whether the law governing in-school interviews by social workers was clearly established at the time of defendants’ conduct; Camreta v. Greene; Fourteenth Amendment procedural & substantive due process claims; County of Sacramento v. Lewis; Bartell v. Lohiser; Kottmyer v. Maas; Mathews v. Eldridge; Quilloin v. Walcott; Lassiter v. Department of Soc. Servs.; Stanley v. Illinois; Cleveland Bd. of Educ. v. LaFleur; Troxel v. Granville; Prince v. Massachusetts; Smith v. Williams-Ash; Dupuy v. Samuels (7th Cir.); The Parratt-Hudson doctrine; Hudson v. Palmer; Parratt v. Taylor; Zinermon v. Burch

While the court held that the Fourth Amendment governs a social worker’s in-school interview of a child pursuant to a child abuse investigation, and that defendants-social workers violated the Constitution by questioning the children without a “reasonable suspicion” of child abuse, it reversed the denial of qualified immunity on plaintiffs’ Fourth Amendment claims. Defendants were still entitled to qualified immunity because the law governing warrantless, in-school interviews by social workers was not clearly established at the time of their conduct. But the court affirmed the denial of qualified immunity on plaintiffs’ Fourteenth Amendment procedural and substantive due process claims. Plaintiffs alleged that social workers who worked for the Kentucky Health and Family Services “violated their Fourth Amendment rights by subjecting four of the children to warrantless in-school interrogations without reasonable suspicion of child abuse.” The district court denied defendants qualified immunity on this issue. The court held that they violated the Fourth Amendment where they lacked “‘some definite and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse’ before seizing a child from his or her school classroom without a warrant and when no other exception to the warrant requirement applies.” Additionally, there was “a genuine factual dispute as to whether a reasonable child in Plaintiffs’ position would have felt free to leave the interview.” The court concluded that “viewing the evidence in the light most favorable to Plaintiffs, a reasonable jury could find that Defendants’ seizure of Plaintiffs was not ‘justified at its inception[]’” where the social workers had no “plausible suspicion” of child abuse or neglect. However, defendants were still entitled to qualified immunity where the “Fourth Amendment right to be free from the in-school interviews that occurred” was not clearly established at the time the interviews took place. The court affirmed the district court’s ruling that defendants were not entitled to qualified immunity on plaintiffs’ Fourteenth Amendment due process claims for preventing plaintiff-mother from being alone with her children for two months without procedural protections such as a hearing, and for violating their rights to “family integrity and association without interference from the state[.]” Remanded.

Prosecutorial misconduct; People v. Unger; People v. Bahoda; Credibility; People v. Wolfe; Errors that could have been cured by a jury instruction; People v. Stanaway; Ineffective assistance of counsel; People v. Lockett; Failure to raise a futile objection; People v. Ericksen; Matters of trial strategy; People v. Reed; Other acts evidence; MRE 404(b)(1); People v. Sabin; People v. Denson; People v. VanderVliet; MRE 403; People v. Sharpe; Harmless error; People v. Hawthorne; People v. Burns; Sentencing; Principle of individualized sentencing; People v. Pennington

The court concluded that the prosecutor did not commit misconduct by arguing about details witness-S explicitly or implicitly admitted, and that even if there had been misconduct, defendant failed to show prejudice. Further, his trial counsel’s failure to object did not impact the trial. The court also rejected defendant’s challenge to the admission of other acts evidence, and found no merit to his claim that the trial court sentenced him on the basis of his decision not to plead guilty and to go to trial. Thus, it affirmed his armed robbery conviction and sentence, as a third-offense habitual offender, to 16 to 70 years. The “case arose from an alleged scheme by defendant and his mother to lure the victim to the mother’s home and rob him.” S, defendant’s bunkmate in jail, testified about details of defendant’s crime that he allegedly learned from their conversations and disclosed to police. “These details included that defendant told him that his mother set up the victim for the robbery, that defendant told him that the amount he stole was $300, and that defendant believed he would not be caught because he was not found with a gun or the correct amount of money.” The court noted that S’s “testimony was inconsistent, and at times confusing.” While he denied remembering making the statements, “he acknowledged that he knew these details because of statements from his conversations with defendant.” Whether S was truthful was for the jury to determine. The court added that, even if there was prosecutorial misconduct, S’s “testimony was a relatively small part of a much broader argument utilizing physical evidence presented at trial. To the extent that the prosecutor relied on facts not in evidence, this argument would only be of minimal impact because, as [S] repeatedly insisted, defendant only made these statements to [S] in the context of a generalized discussion of their cases.” Thus, as far as the jurors were concerned, they were only hearing the details of the charges against defendant as he perceived them. Further, the jury was instructed that the prosecutor’s arguments were not “evidence and that the jury should only decide the facts of the case on the basis of witness testimony and other evidence presented. Any minimal prejudice” a defendant sustains due to a “prosecutor’s argument is generally cured by the trial court’s appropriate instruction.”

Motion for a directed verdict; People v. Aldrich; People v. McKewen; Sufficiency of the evidence; People v. Nowack; People v. Brown; Armed robbery; People v. Chambers; Aiding & abetting; MCL 767.39; People v. Robinson; Admission of text messages as MRE 404(b) evidence; People v. Bynum; People v. Jackson; People v. Mahone; People v. Waterstone; People v. Crawford; Relevance; MRE 401 & 402; People v. Sabin; Materiality; MRE 404(b)(1); People v. Denson; People v. VanderVliet; People v. Felton; People v. Hine; MRE 403; People v. Sharpe; Mere similarity; People v. Steele; Harmless error; MCL 769.26; People v. Williams; People v. Mateo; People v. Hawthorne; People v. Lukity; People v. Burns; Credibility; People v. Lemmon; Inferring consciousness of guilt from lying; People v. Unger; Presumption jurors follow their instructions; People v. Dupree

The court held that there was sufficient evidence to support defendant’s armed robbery conviction as an aider and abettor. Further, although the trial court erred by admitting the text messages, the court could not conclude that she was entitled to relief, as the admission amounted to harmless error. She argued that the trial court erred by denying her motion for a directed verdict because there was insufficient evidence of her guilt. She was convicted as an aider and abettor to her son (D), who allegedly carried out the physical robbery. As defendant viewed it, the only evidence supporting her connection to the crime was that she “engaged in a sexual act with the victim shortly before the robbery near her house and her connection to the alleged assailant as his mother.” The court first concluded that the evidence was sufficient to show that D committed the crime. “The victim testified that he was walking in the street when a ‘tall’ and ‘muscular’ individual approached him with a gun. This assailant ordered the victim to give him money and the victim gave him a little over $300. The victim testified that defendant was one of only two people who knew that he was at defendant’s home and that she was the only one who knew when he was leaving the home. Because of this and the victim’s identification of certain physical features, the victim believed” that D was the person who robbed him. He also believed that he recognized D as the robber because he looked at a photo of D “that was hanging in defendant’s home shortly before the robbery.” An investigation revealed one set of footprints in the snow leading away from the crime scene. The tracks led through defendant’s backyard and to D, who “was wearing Nike shoes with the Nike swoop insignia on them.” Those shoes matched the footprints. Thus, the first element was satisfied. Second, there was sufficient evidence that she “gave encouragement that assisted the commission of the crime . . . .” The officers retrieved the contents of defendant’s and D’s cell phones. They found two text messages sent on the night of the robbery, indicating that defendant informed D the victim was there. Further, “the aftermath of the assailant’s flight from the scene directly tied defendant to the case.” Evidence supported the inference that she contacted D “after the armed robbery to coordinate stories and assist [him] in changing his clothes and hiding some physical evidence.” Affirmed.

Unlawful posting of a message; MCL 750.411s(1) & (2)(a); Whether the prosecutor proved that defendant “intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, harassed, or molested”; MCL 750.411s(1)(b); Stalking; MCL 750.411h(1)(d); Circumstantial evidence & reasonable inferences; People v. Perry; Course of conduct defined; MCL 750.411h(1)(a); Harassment defined; MCL 750.411h(1)(c); Sufficiency of evidence to link defendant to the letters; “Conduct that serves a legitimate purpose” defined; Nastal v. Henderson & Ass’n Investigations, Inc.; Emotional distress defined; MCL 750.411s(g)

The court concluded that there was sufficient evidence for a reasonable jury to infer that defendant was the one who contacted Jehovah’s Witnesses, Lending Tree, and the Mayo Clinic as to unconsented contacts with victim-L. Also, given the allegations, the jury could reasonably infer that he intended to harass L by making a false complaint to the Humane Society. Finally, given the circumstances, the court held that a reasonable jury could find that defendant caused L emotional distress. Defendant and L’s daughter went through a contentious divorce. In this case, he was convicted of unlawful posting of a message and stalking. As to his conviction under MCL 750.411s(1), he argued that there was insufficient evidence to prove that he authored the Mayo Clinic appointment request. This argument overlooked “that the prosecution may prove its case through circumstantial evidence and reasonable inferences arising from that evidence.” The prosecution offered “evidence that mayoclinic.org was accessed from defendant’s work computer and username on at least two separate occasions. Furthermore, the appointment request to the Mayo Clinic contained personal information that only [L] or someone who knew him well would know.” The evidence was “sufficient for the jury to reasonably infer that defendant was the one who accessed the Mayo Clinic website and submitted the request.” He repeated the same argument as to the Jehovah’s Witnesses and Lending Tree contacts. L “testified that he did not submit a request for a Bible study to Jehovah’s Witnesses or submit any information to Lending Tree, and these contacts occurred around the same time as the Humane Society and Mayo Clinic contacts.” In addition, L “testified that the reverse mortgage sale representatives had personal information about him that only a family member would know, and someone had obviously given Jehovah’s Witnesses his address and phone number.” Affirmed.

Sufficiency of the evidence; First-degree child abuse; MCL 750.136b(2); People v. Gould; People v. Maynor; Intent; People v. Anderson; People v. Mills; Inferences; People v. Henry; Mistrial; People v. Haywood; People v. Horn; People v. Long; People v. Page; Curative instruction; People v. Callon; People v. Petri; Prosecutorial error; People v. Lane; People v. Bennett; People v. Unger; People v. Bahoda; People v. Phillips; People v. Dobek; People v. Dalessandro; People v. Watson; People v. Blevins

The court held that there was sufficient evidence to support defendant’s first-degree child abuse conviction, that the trial court did not err by denying her motion for a mistrial, and that the prosecution did not commit misconduct. She was convicted due to unexplained injuries suffered by her 10-month-old daughter. On appeal, the court rejected her argument that the prosecution presented insufficient evidence to support her conviction. “[T]he evidence that defendant was [the child’s] exclusive caretaker during the time in which [she] would have sustained her injuries, that defendant’s housemate heard a ‘thud’ and then noticed a look of alarm on defendant, that defendant failed to obtain timely medical attention for [the child], that defendant offered various unconvincing and inconsistent explanations for [her] injuries, and that defendant was dishonest with the police about the location of her and [the child’s] place of residence, is sufficient to support a reasonable inference that defendant was responsible for” the child’s injuries. Further, the “medical testimony, considered along with the indications that defendant failed to seek immediate medical care in spite of [the child’s] clear and obvious injuries, was sufficient to persuade a reasonable juror that defendant either intended to seriously harm [her] or at least knew that serious harm would result from her actions.” The court also rejected her claim that the trial court erred by denying her motion for a mistrial on the basis that the prosecutor asked her on cross-examination about contacting sequestered witnesses. It noted that “no evidence ever reached the jury regarding defendant’s text message to her friend, and because defendant never answered the prosecutor’s question about contacts with sequestered witnesses, there was no actual evidence of witness tampering for the jury to consider.” Further, the jury was instructed “that the lawyers’ statements, arguments, and questions were not evidence.” Finally, the court rejected her contention that the prosecutor improperly denigrated the defense through its expert’s testimony, “improperly suggested that defense counsel mischaracterized the law,” and misrepresented the facts in evidence, finding each claim meritless. Affirmed.

Prosecutorial error; People v. Brown; People v. Bennett; Closing argument; People v. Unger; Characterization of the DNA evidence; Presumption jurors follow their instructions; People v. Mahone; Sentencing; Review of a departure sentence; Reasonableness & proportionality; People v. Lockridge; People v. Milbourn; People v. Lampe; Necessity of explaining the extent of the departure; People v. Smith; Consecutive sentences; People v. Gonzalez; MCL 750.520b; People v. Norfleet; Accuracy of the information in the presentence investigation report (PSIR); People v. Maben; People v. Waclawski; Victim impact statement; MCL 780.764; People v. Golba; Waiver; People v. Carter; People v. McChester

While the court rejected defendant’s prosecutorial error claim, it concluded that the trial court failed to explain the extent of the departure in his sentence or why the 15-month departure was more proportionate than a within guidelines sentence. Remand was also necessary because the trial court did not articulate its rationale for imposing consecutive sentences, and for the trial court to determine the accuracy of the victim impact statement in the PSIR, to indicate whether it relied on the challenged information in sentencing defendant, or to resentence him if it determines it relied on inaccurate information. Thus, the court affirmed his CSC I, unarmed robbery, and stealing or retaining a financial device convictions, but remanded for further proceedings as to his sentencing. Although he argued that the prosecutor mischaracterized the DNA evidence during closing argument, the court disagreed, concluding that “the prosecutor’s arguments were reasonable inferences arising from the scientist’s testimony. The prosecutor stated that the scientist’s analysis provided strong support that defendant did not contribute DNA to the broom handle swab, but it did not exclude defendant as a potential contributor of DNA to the broom handle swab, which was consistent with the scientist’s testimony.” However, as to defendant’s sentences, a “sentence cannot be upheld when the connection between the reasons given by the trial court for the departure and the extent of the departure is unclear.” Thus, remand was required for the trial court “to further articulate its reasons for departing from the sentencing guidelines or to resentence defendant.” It was also required related to the imposition of consecutive sentences for the two CSC I convictions. The trial court “stated its considerations for departing from the” guidelines in sentencing defendant, but failed to articulate its rationale for imposing consecutive sentences. “Indeed, it appeared to do so almost as an afterthought.” Finally, the record before the court was not sufficient “to determine the accuracy of the victim impact statement,” and it did not show “whether and to what the extent the trial court relied upon the information in the victim impact statement.” Thus, remand was also necessary in this respect.

Prearrest delay; People v. Adams; People v. Mahone; People v. Al-Shara; People v. Cain; Due process; People v. Patton; People v. Scott; Actual & substantial prejudice; People v. Woolfolk; Right result reached for the wrong reason; People v. Ramsdell

The court held that the trial court abused its discretion by granting defendant’s motion to dismiss because he failed to establish that he was prejudiced by the prearrest delay. On appeal, the prosecution argued that defendant failed to meet his burden by showing that actual and substantial prejudice resulted from the delay. “At the motion hearing, the trial judge reasoned that when the prosecution ‘receive[s] the information about the charges and they intend to charge him, they have to charge him within a reasonable amount time.’” Thus, the trial judge determined that defendant’s right to due process was “violated because the delay was unreasonable. But a delay alone does not establish prejudice because a defendant has no right to be arrested. . . . Rather, the proper test is whether a defendant has established actual and substantial prejudice to his defense.” The trial judge did not make any such finding. As a result, the order to dismiss was based on an error of law and, thus, was an abuse of discretion. But the court will “not reverse where the trial court reaches the right result for a wrong reason.” Thus, it addressed defendant’s remaining arguments that would support dismissal. He argued that the prearrest delay resulted in actual and substantial prejudice because he may face adverse sentencing consequences. Such “consequences could arise because if the prosecution had brought the charges relating to the [3/19/17] offenses at the same time that it charged the [12/30/17] offense, defendant could have received concurrent sentences.” This argument lacked merit. “At the motion hearing, the trial judge found that ‘it is unreasonable to expect [defendant] to be charged after a conviction, a second offense occurring much later than the first offense . . . [a]nd then . . . fac[e] a subsequent sentence. . . .’” Thus, the trial judge held that defendant’s right to due process was violated because he was facing an additional sentence for the 3/19/17 offenses. However, the trial judge made an error of law by doing so. The “question before the trial court was whether defendant’s ability to defend against the charges had been meaningfully impaired by the prearrest delay, not whether defendant might have received a better ‘package’ deal or served concurrent sentences,” if the 3/19/17 and the 12/30/17 offenses had been tried or sentenced at the same time. Thus, the trial judge abused his discretion by finding that defendant’s right to due process was violated because he potentially faced an adverse sentencing consequence. Vacated and remanded.

Habeas corpus; 28 USC § 2254; The Confrontation Clause; U.S. Const. amend. VI; Davis v. Alaska; Crawford v. Washington; Davis v. Washington; Hearsay; FRE 801; Harmless error analysis; Davis v. Ayala; O’Neal v. McAninch; § 2254(d)(1)–(2); Applicable standard; Brecht v. Abrahamson; Rosencrantz v. Lafler; Antiterrorism & Effective Death Penalty Act (AEDPA); Fry v. Pliler; Chapman v. California; Ruelas v. Wolfenbarger; Whether the Confrontation Clause violation was harmless; Delaware v. Van Arsdall; Jensen v. Romanowski; McCarley v. Kelly; Madrigal v. Bagley; Vasquez v. Jones; Blackston v. Rapelje; Napue v. Illinois; Calvert v. Wilson; Cotto v. Herbert (2d Cir.); Brinson v. Walker (2d Cir.); Clark v. O’Leary (7th Cir.)

[This appeal was from the WD-MI.] The court reversed the district court’s denial of petitioner-Reiner’s petition for habeas corpus where the Michigan trial court erroneously admitted hearsay statements and the government’s case was circumstantial. Reiner was convicted of robbing a home and stabbing the home’s occupant, eventually resulting in her death. At trial, the prosecution introduced statements from a pawnbroker (L) that indicated Reiner may have possessed a ring stolen from the victim’s home. This information was given through the testimony of police officers, since L had died before trial. Reiner argued that this violated his rights under the Sixth Amendment Confrontation Clause, but the trial court allowed most of the testimony because the statements “‘would be used to explain why the police acted as they did and how they came to investigate defendant.’” These statements comprised a significant portion of the evidence against Reiner, with no physical evidence such as DNA or fingerprints offered. He was convicted of assault with intent to murder, first-degree home invasion, and felony murder. Although the Michigan Court of Appeals ruled that most of L’s statements should not have been admitted, it held that the admissions were harmless in view of other evidence against Reiner. The Michigan Supreme Court denied leave to appeal. All parties agreed that the AEDPA applied. In “‘this Circuit, Brecht is the standard for reviewing all (non-structural) errors on collateral review.’” The court then considered the merits of Reiner’s claim. Applying the Van Arsdall factors, it held that the statements were inadmissible hearsay and central to the prosecution’s case, especially where the prosecution cited the testimony in the opening statement and closing argument. Also, there was a lack of physical evidence. L’s “statements provided the strongest evidence in the prosecution’s case of Reiner’s guilt.” The court rejected the government’s argument that his statements were cumulative. It noted that without the statements, the government’s case was circumstantial, and that there was no opportunity to cross-examine L where he died before trial. Thus, the court vacated the district court’s judgment and remanded for a conditional writ.

Unlawful retaliation under the Elliott-Larsen Civil Rights Act (ELCRA) (MCL 37.2101 et seq.); MCL 37.2701(a); Meyer v. City of Ctr. Line; Causation; Barrett v. Kirtland Cmty. Coll.; Rymal v. Baergen; Direct evidence; Hazle v. Ford Motor Co.; Cuddington v. United Health Servs., Inc.; Indirect evidence; Debano-Griffin v. Lake Cnty.; Burden-shifting framework; McDonnell Douglas Corp. v. Green; The law of the case doctrine; Grievance Adm’r v. Lopatin; Webb v. Smith; Duncan v. Michigan

Assuming that plaintiff made out a prima facie case of retaliation in violation of the ELCRA, the court concluded that defendant-former employer provided legitimate, nonretaliatory reasons for its compensation decisions and supported them with evidence, and plaintiff failed to show that they were pretextual. Thus, it affirmed summary disposition for defendant. Plaintiff first argued on appeal that the trial court’s rulings as to “the statute of limitations, protected activity, causation, and collateral estoppel were all precluded by” the court’s prior decision in the case. He invoked the law of the case doctrine, asserting “that the previous panel determined that his retaliation claim in the amended complaint was not futile and presented a jury question.” But the court found that, given it had “ultimately determined that a summary disposition motion could be pursued on remand, which would necessarily encompass a challenge regarding the merits of the retaliation claim, the law of the case doctrine did not preclude the trial court’s various rulings that summarily rejected the substance of the retaliation claim.” Turning to the elements of a prima facie retaliation claim, the court concluded that the only issue it had to address was causation. Defendant produced evidence that its determinations as to plaintiff’s compensation were based “on business assessments and criticisms of his performance.” Plaintiff pointed “to a litany of evidence that he claims constituted direct and indirect evidence of retaliation and established that defendant’s reasons were pretextual.” However, the court “scoured and scrutinized this evidence and, as a matter of law, it simply did not constitute direct evidence of retaliation, nor did it indirectly reflect that retaliation was a motivating factor for defendant’s compensation decisions. Plaintiff failed to demonstrate, as a matter of law, that the business and performance-related reasons for defendant’s compensation decisions had no basis in fact, were not the actual factors motivating the decisions, or were insufficient to justify the decisions.”

The Whistleblowers’ Protection Act (WPA) (MCL 15.361 et seq.); Chandler v. Dowell Schlumberger, Inc.; Res judicata; Vandenberg v. Vandenberg; Mable Cleary Trust v. Edward-Marlah Muzyl Trust; Discharge in violation of public policy claim; McNeil-Marks v. Midmichigan Med. Ctr.-Gratiot; Anzaldua v. Neogen Corp.; Landin v. Healthsource Saginaw, Inc.

The court held that the trial court erred in dismissing plaintiff’s WPA claim in the amended complaint because res judicata did not apply. However, it affirmed the earlier summary disposition of her original WPA claim due to the absence of WPA-protected activity in the original complaint. It also affirmed dismissal of the violation of public policy claim raised in the amended complaint, which did not identify any objective source for the claim. Plaintiff, a former employee of defendant-Grand Traverse County, initially filed a three count complaint, alleging she was wrongfully discharged in violation of the WPA. “However, because she alleged that she was terminated for whistleblowing activities concerning the County’s planned violations of law,” the trial court granted summary disposition on the original WPA claim in 2/18. Plaintiff then filed her amended complaint, alleging that she was “terminated for having reported or for being about to report several ‘violations’ or suspected violations of law.” She further asserted “that the County’s stated reasons for firing her were pretextual, and that public policy prohibited the County from firing her based on her report of planned violations of law.” In 7/18, the trial court again granted the County summary disposition, ruling that the WPA claim was barred by res judicata and that the public policy claim was unsupported by the law. The court first held that the trial court erred in dismissing the WPA claim because plaintiff’s first amended complaint did not constitute a subsequent lawsuit for res judicata purposes. As to her original WPA claim, while plaintiff contended that the trial court erred by concluding that she was unable to prove the causation element, it did not analyze this element. Rather, it “expressly held that ‘without a protected activity, there is no claim under the WPA and analyzing whether there was a causal connection is not required.’” Given that it was “undisputed that no activity protected by the WPA was alleged in the original complaint,” there was no reversible error as to the 2/18 order. Affirmed in part, reversed in part, and remanded.

Action seeking personal protection insurance (PIP) benefits under the No-Fault Act (MCL 500.3101 et seq.); MCL 500.3148; Whether plaintiff’s alleged injuries arose out of the operation or use of a motor vehicle; MCL 500.3105(1); Griffith v. State Farm Mut. Auto. Ins. Co.; Scott v. State Farm Mut. Auto. Ins. Co.; Whether the accident aggravated a preexisting condition; Mollitor v. Associated Truck Lines; Proof of an objectively-manifested impairment; MCL 500.3135(5)(a); Statutory interpretation; Crego v. Edward W Sparrow Hosp. Ass’n

Holding that there was sufficient evidence to create a genuine issue of material fact as to whether plaintiff suffered bodily injuries arising out of the operation or use of a motor vehicle, the court reversed the trial court’s grant of summary disposition for defendant-insurer and remanded. Plaintiff filed suit when defendant stopped paying PIP benefits for injuries plaintiff sustained in a car accident. The trial court granted summary disposition for defendant, finding plaintiff’s “injuries and medical treatment were not caused and/or related to” the accident. On appeal, the court held that a genuine issue of material fact existed as to whether the accident aggravated plaintiff’s preexisting conditions or caused her injuries. Because plaintiff’s expert “opined that the medical evidence revealed physical changes and conditions that could have been the result of the accident and were not necessarily all degenerative in nature, and because the medical records reflected that plaintiff had no complaints of pain or functionality problems until after the accident, a reasonable trier of fact could logically conclude that there was a causal connection between the car accident and at least the aggravation of plaintiff’s preexisting degenerative conditions.”

The Whistleblowers’ Protection Act (WPA) (MCL 15.361 et seq.); Chandler v. Dowell Schlumberger, Inc.; Res judicata; Vandenberg v. Vandenberg; Mable Cleary Trust v. Edward-Marlah Muzyl Trust; Discharge in violation of public policy claim; McNeil-Marks v. Midmichigan Med. Ctr.-Gratiot; Anzaldua v. Neogen Corp.; Landin v. Healthsource Saginaw, Inc.

The court held that the trial court erred in dismissing plaintiff’s WPA claim in the amended complaint because res judicata did not apply. However, it affirmed the earlier summary disposition of her original WPA claim due to the absence of WPA-protected activity in the original complaint. It also affirmed dismissal of the violation of public policy claim raised in the amended complaint, which did not identify any objective source for the claim. Plaintiff, a former employee of defendant-Grand Traverse County, initially filed a three count complaint, alleging she was wrongfully discharged in violation of the WPA. “However, because she alleged that she was terminated for whistleblowing activities concerning the County’s planned violations of law,” the trial court granted summary disposition on the original WPA claim in 2/18. Plaintiff then filed her amended complaint, alleging that she was “terminated for having reported or for being about to report several ‘violations’ or suspected violations of law.” She further asserted “that the County’s stated reasons for firing her were pretextual, and that public policy prohibited the County from firing her based on her report of planned violations of law.” In 7/18, the trial court again granted the County summary disposition, ruling that the WPA claim was barred by res judicata and that the public policy claim was unsupported by the law. The court first held that the trial court erred in dismissing the WPA claim because plaintiff’s first amended complaint did not constitute a subsequent lawsuit for res judicata purposes. As to her original WPA claim, while plaintiff contended that the trial court erred by concluding that she was unable to prove the causation element, it did not analyze this element. Rather, it “expressly held that ‘without a protected activity, there is no claim under the WPA and analyzing whether there was a causal connection is not required.’” Given that it was “undisputed that no activity protected by the WPA was alleged in the original complaint,” there was no reversible error as to the 2/18 order. Affirmed in part, reversed in part, and remanded.

Termination under §§ 19b(3)(a)(ii), (b)(iii), (g), (j), & (k)(i); In re Beck; In re Moss Minors; In re Hudson; In re BZ; In re Miller; In re Olive/Metts Minors; In re White; Whether the trial court’s findings were adequate on the subject of the children’s best interests; MCR 3.977(I)(1) & (3); Reasonable reunification efforts; In re Smith; In re Frey; In re Utrera; Michigan’s Probate Code (MCL 710.21 et seq.); In re Hicks/Brown Minors; In re Mason; In re TK; In re Fried; In re Rood; In re HRC

Holding that § (a)(ii) existed, termination was in the children’s best interests, and the trial court did not clearly err by finding the DHHS had made reasonable efforts at reunification, the court affirmed termination of respondent-father’s parental rights. Without even taking into consideration all of the years that he was completely absent from the children’s lives and did not support them or seek custody, the court concluded that desertion occurred 91 days after the preliminary hearing on 5/22/18, or 91 days after he visited his daughter on 5/26/18. The court reached this determination because he chose not to further participate in the proceedings or seek custody of his children after 5/18 despite the DHHS’s repeated efforts to involve him in the process and planning. Even at the preliminary hearing, he did not ask to be given his children; rather, he requested that the trial court place them with his mother. Thus, desertion under § (a)(ii) was established by clear and convincing evidence, and the trial court did not commit clear error in so finding.