Divorce; Attorney fees under MCR 3.206(D)(2); Effect of the lack of subject-matter jurisdiction to modify the out-of-state spousal support order; Stackhouse v Stackhouse; Myland v Myland; Sanctions for bringing a frivolous claim; MCR 2.625(A)(2); Effect of failing to move for such sanctions; Uniform Interstate Family Support Act (UIFSA); MCL 552.2603(3)

Holding that “the trial court abused its discretion by denying attorney fees under MCR 3.206(D)(2) because it lacked subject-matter jurisdiction to modify the out-of-state spousal support order,” the court reversed and remanded. The parties were divorced pursuant to a judgment entered in a Virginia court. Plaintiff-ex-husband “registered the out-of-state spousal-support order in Michigan” and moved to terminate spousal support. The trial court sua sponte ruled that it did not have “subject-matter jurisdiction to modify the out-of-state spousal-support order.” Defendant-ex-wife then sought an order for plaintiff to pay her attorney fees. The “trial court declined considering an award of attorney fees solely because it lacked jurisdiction to modify the spousal-support order.” The court found that in so doing, the trial court abused its discretion, and it remanded for the trial court to address the motion for attorney fees under MCR 3.206(D)(2)(a). Here and in Stackhouse, “the trial court did not have jurisdiction to enter an order regarding the underlying proceedings. Stackhouse is distinct because it involved the death of a party to the divorce.” Throughout the proceedings there, “the trial court had jurisdiction, but lost it upon the death of a party. In this case, under the UIFSA, the trial court had jurisdiction respecting the enforcement of a support order issued in another state, but it lacked jurisdiction to modify such order if the issuing tribunal had jurisdiction. MCR 3.206(D) plainly intends to provide a party in a domestic relations case who lacks the ability to bear the expense of litigation the requisite means to defend against an action both during and after proceedings, regardless of the party’s success on the merits.” As the court observed in Stackhouse, “‘the interests of justice are served when the financially deprived party to a divorce action is furnished with the requisite means of prosecuting or defending the suit.’” The court concluded that despite “the limitation of the trial court’s authority to render a decision on the underlying dispute, defendant was forced to defend herself over an extended period. The lack of jurisdiction to modify the support award did not result in defendant not having to properly defend herself throughout the proceedings.”

Action under 42 USC § 1983 for deliberate indifference to serious medical needs; A pretrial detainee’s burden of proof; Kingsley v Hendrickson; Brawner v Scott Cnty; Trozzi v Lake Cnty; Whether each defendant acted “deliberately” & “recklessly ‘in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known’”; Municipal liability; Qualified immunity

In an order on two petitions for rehearing en banc of an opinion (see e-Journal #78934 in the 2/23/23 edition) in a case alleging deliberate indifference to a pretrial detainee’s serious medical needs, the original panel concluded “that the issues raised in the petitions were fully considered upon the original submission and decision. The petitions then were circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.” Thus, the petitions were denied.

Petition for rehearing en banc; First Amendment & Religious Freedom Restoration Act (RFRA) challenges to the U.S. Air Force’s vaccine mandate; “Strict scrutiny”; Applicability of an “abstention test” to the RFRA claim; Mindes v Seaman (5th Cir); Scope of an injunction; Class certification; FedRCivP 23

In an order, the court denied a petition for rehearing and rehearing en banc of an opinion (see e-Journal # 78546 in the 12/19/22 edition) regarding an Air Force COVID-19 vaccine mandate. The court noted that the petition did not seek review of the issues the panel’s opinion decided and instead sought to have the opinion and the preliminary injunctions vacated based on subsequent mooting of the appeal and injunctions. The original panel reviewed the petition for panel rehearing and “concluded that the district court should review this mootness question in the first instance.” It further determined “that, even if the preliminary injunctions were now moot, that fact would not provide a basis for the ‘extraordinary remedy of vacatur’ of the panel’s opinion.” The petition was then “circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.”

Action under 42 USC § 1983 for deliberate indifference to serious medical needs; A pretrial detainee’s burden of proof; Kingsley v Hendrickson; Brawner v Scott Cnty; Trozzi v Lake Cnty; Whether each defendant acted “deliberately” & “recklessly ‘in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known’”; Municipal liability; Qualified immunity

In an order on two petitions for rehearing en banc of an opinion (see e-Journal #78934 in the 2/23/23 edition) in a case alleging deliberate indifference to a pretrial detainee’s serious medical needs, the original panel concluded “that the issues raised in the petitions were fully considered upon the original submission and decision. The petitions then were circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.” Thus, the petitions were denied.

Motion to restore appellate rights; MCR 6.428; Whether a newly amended or adopted court rule applies; MCR 1.102; Reitmeyer v Schultz Equip & Parts Co, Inc; Retroactivity; Right to appellate review under MCR 7.204(A)(2)(d); Scope of an appointed appellate lawyer’s representation; MCR 6.425(G)(2)

Holding that “under the facts and circumstances of this case, MCR 6.428 provided for the restoration of defendant’s appellate rights,” the court reversed the trial court’s order denying his motion to restore those rights, and remanded. He was convicted of CSC I. The trial court ultimately denied his motion for relief from judgment. The court denied his first appeal, finding he failed to show that the trial court erred. He then moved in the trial court for restoration of his appellate rights under MCR 6.428. The trial court denied his request, noting his reliance on MCR 6.428 was misplaced. In this appeal, the court agreed with defendant that the trial court erred by denying his motion under MCR 6.428 to restore his appellate rights because, through no fault of his own, he lost his right to appellate review. He noted that “his appellate counsel withdrew his claim of appeal with the intent to supplement or adopt defendant’s pro se motion for new trial, but then failed to timely notice, supplement, or adopt the motion for new trial, resulting in the loss of his right to appellate review.” The court first found that MCR 6.428 applied retroactively. “Defendant did not act or fail to act in reliance on the previous version of MCR 6.428 and the application of the current version of MCR 6.428 is feasible and will not work an injustice on the parties.” It then found that the trial court erred by concluding that defendant’s reliance on MCR 6.428 was misplaced. “Defendant’s prior appellate counsel engaged in an act that constituted an imprudent deviation from motion practice and an act based on mistake, ignorance, deficiency, or accident that departed from or failed to achieve what should have been done, the filing of a timely amended motion for new trial that would have preserved defendant’s right to appellate review under MCR 7.204(A)(2)(d). Defendant’s prior appellate counsel, therefore, committed an error within the purview of MCR 6.428.” Because of counsel’s errors, defendant was denied the right to appellate review, and was thus “entitled to have his appellate rights restored.” Finally, the court found that the trial court erred by concluding that defendant “bore the burden to seek adjudication of his motion for new trial and by not doing so abandoned the motion. That responsibility, however, belonged to prior appellate counsel whose failure to properly and timely pursue defendant’s motion for new trial constituted an error that denied defendant his right to appellate review.”

Permitting the jury to rewatch in the courtroom videos introduced into evidence; Forfeited rather than affirmatively waived claim; Plain-error; People v Carines; MCR 2.513(O) & (P); External influence; Distinguishing People v Chambers; Prejudice; Preliminary instructions

The court held that the “trial court did not err when, after the jury had already begun its deliberations, it permitted the jury to rewatch in the courtroom videos introduced into evidence. Nor were defendant’s substantial rights affected by the trial court’s incomplete preliminary instructions, given that the trial court properly instructed the jury at the conclusion of proofs.” He challenged the trial court’s process for showing the videos to the jury after they had begun their deliberations. As “to the jurors’ request, there is no absolute right for a party to have an exhibit in the jury-deliberation room.” Defendant’s main claim was “that the presence of the judge, lawyers, and others in the courtroom, while the two videos were replayed, interfered with the jury’s ability to deliberate among themselves while watching the videos.” He relied primarily on Chambers. But Chambers was distinguishable. “First, no one outside the jurors themselves entered the jury-deliberation room. The jurors were free from outside influences to deliberate among themselves in that room, both before and after the replaying of the videos. Second, no one in the courtroom communicated with the jurors, other than the trial court’s brief explanation about the replaying of the videos.” Third, there was “nothing to suggest that the jurors were somehow barred from taking notes during the replaying of the videos, and, in fact, it seems reasonable that, by not talking among themselves during the replaying of the videos, each individual juror was likely in a better position to focus on and evaluate the evidence for him- or herself. They could then take their individual impressions and evaluations and return to the deliberation room to continue their discussions, which is what they appear to have done, given that they deliberated for” about another 90 minutes before issuing their verdict. Nothing on the record suggested “even a remote possibility of a chilling effect on the jurors’ deliberations.” As to prejudice, the record made “clear that, outside of the trial court’s brief explanation about the showing of the videos, no one in the courtroom communicated with a juror, and no juror communicated with anyone in the courtroom. Had lawyers or courtroom personnel invaded the jury-deliberation room, a chilling effect might very well have existed, as in Chambers; but the mere presence of other people in the courtroom while the jury reviewed evidence and then retired back to the jury-deliberation room is not enough to create a prejudicial chill.” The trial court did not abuse its discretion in denying defendant a mistrial on this basis. Affirmed.

Sentencing; Upward departure; Proportionality

Concluding that the trial court failed to adequately justify the significant upward departure from the sentencing guidelines, the court affirmed defendant’s convictions, vacated his sentences for the assault convictions, and remanded to the trial court for resentencing. He pled no contest to AWIM and felony-firearm for shooting his two-year old son and attempting to shoot the child’s mother. He was sentenced to 35 to 55 years for each assault conviction, to be served concurrently and 2 years “for each felony-firearm conviction, to be served concurrently, but consecutively to the sentence for the assault convictions.” Defendant contended “that his minimum sentence of 35 years for the assault convictions, at nearly double the high end of the minimum sentencing guidelines range of 225 months, was an unreasonable and disproportionate upward departure, which the trial court failed to adequately justify.” The sentencing guidelines for his “assault convictions indicated a minimum sentence range of 135 to 225 months.” The trial court then sentenced him to 35 years to life for the assault convictions. “Shortly after stating the sentence, the trial court returned to the record to alter defendant’s maximum sentence to 55 years instead of life. The minimum sentence of 35 years (420 months) is an upward departure of 195 months from the maximum minimum range of the guidelines of 225 months.” The court held that although “the trial court accurately observed that defendant committed a horrendous crime, the trial court did not adequately justify its significant departure from the sentencing guidelines; . . . the trial court was required to explain ‘why the sentence imposed is more proportionate to the offense and the offender than a different sentence would have been.’” The court found that the “trial court’s justification of its departure sentence amounted to nothing more than a recitation of the facts surrounding the shooting and its aftermath, which standing alone is not sufficient to justify the substantial departure from the sentencing guidelines. The trial court failed to justify the departure sentence in sufficient detail to facilitate appellate review, which requires that [it] reference the guidelines and explain why they are inadequate to capture the seriousness of this offense.” The court determined that this “failure adequately to support its departure from the sentencing guidelines [was] an abuse of its discretion necessitating resentencing." It retained jurisdiction.

Sentencing; Due process; Whether defendant had an opportunity to review the presentence investigation report (PSIR) before sentencing; MCR 6.425(D)(1)(a); People v Maben; Right to be sentenced on the basis of accurate information; People v Daniels; Right of allocution; MCR 6.425(D)(1)(c) & (E)(1)(c); People v Kammeraad; Predetermined sentence; People v McNeal

The court held that defendant was not denied the opportunity to review the PSIR with her attorney prior to sentencing, or her right to be sentenced on the basis of accurate information. It also found she was not denied her right of allocution. She pled no contest to AWIM. After violating the terms of her plea agreement by absconding, the trial court ruled that her original sentence was forfeited. It eventually sentenced her to 15 to 30 years. On appeal, the court rejected her argument that the trial court violated MCR 6.425(D)(1)(a) and her right to be sentenced on the basis of accurate information by failing to determine on the record that she had the opportunity to read and review the PSIR in the week prior to sentencing when she was in jail. “Arguably, the trial court had a basis to ‘determine’ that defendant had this opportunity because her attorney . . . communicated to the [trial] court that defendant recently had surgery, and he was unlikely to be aware of this fact unless he had discussions concerning the contents of the PSIR with defendant before sentencing. By then proceeding to impose sentence, the trial court implicitly may have determined that defendant had an opportunity to read and discuss the PSIR, thus satisfying MCR 6.425(D)(1)(a).” In addition, “even if required, the trial court’s failure to directly ask and confirm that defendant had the opportunity to read and discuss the PSIR was harmless error because she” admitted she had that opportunity. The court also rejected her claim that the trial court erred by announcing part of her sentence—three additional years—before she was given an opportunity for allocution. “Although the trial court may have decided to increase the sentence that it ultimately gave defendant based on her behavior at sentencing, it did not announce what her sentence would be.” The trial court announced it “would add time to her sentence because of her disrespectful behavior while the prosecution was describing the life-altering impacts that the violent attack had on the victim and his family. In doing so, [it] did not impose a sentence or announce what her sentence would be. Rather, it simply warned [her] that her disrespectful behavior was going to affect her ultimate sentence. This did not violate her right to a meaningful allocution. Importantly, defendant was allowed to address the court for as long as she wanted before being sentenced.” Affirmed.

Second or subsequent motion for relief from judgment based on newly-discovered evidence; MCR 6.502(G)(2)(b); The four-part test for newly-discovered evidence; People v Johnson; Reassignment before a different judge; MCR 2.003(C)(1); People v Pillar; Life without parole (LWOP)

Holding that the trial court’s reason for denying defendant’s postconviction motion for relief from judgment was insufficient, the court vacated its order and remanded for reconsideration in front of a different judge. He was convicted of murdering the victim, S. Years later, he moved for relief from judgment on the basis of newly discovered evidence, which consisted of an affidavit from an inmate, M, who was incarcerated with him and who implicated himself and his dead brother in S’s murder. The trial court found he was not entitled to relief. In a prior appeal, the court remanded, directing the trial court to determine whether relief was warranted under the four-part test for newly discovered evidence under Johnson. On remand, the trial court again denied defendant’s motion, once more without holding an evidentiary hearing. In the present appeal, the court agreed with defendant that the trial court abused its discretion in concluding M’s “affidavit lacked credibility apparently and merely because it was from an inmate serving a life sentence.” While the prosecution and trial court speculated defendant knew of M’s claims when he filed his first motion for relief from judgment, there was no evidence presented that he knew of M’s claims before 2018. As such, “the affidavit constitutes new evidence that, on the basis of the record before us, appears was not discoverable before his first motion for relief from judgment in 2014.” Thus, MCR 6.508(D)(3) did “not bar the newly discovered evidence regarding” M’s statements in his affidavit. The court concluded the trial court abused its discretion when it found no reasonable juror could believe M was credible simply because he was serving an LWOP sentence. The trial court found that because M “is serving a life sentence and ‘has nothing to lose’ by confessing to the murder, no reasonable juror would believe him. This fact alone is insufficient to conclude [he] could never be found credible by any reasonable juror, and we cannot countenance a categorical rule that would deny a potentially-innocent defendant from obtaining postconviction relief simply because the actual perpetrator was already serving a life sentence.” The court also found that, on remand, the matter must be assigned to a new judge. “Defendant’s motion has been before this particular judge twice and both times the trial court’s analysis was the same: [M] was not credible because he was already serving a life sentence. It is, therefore, unreasonable to expect the trial court judge to be able to put previously expressed findings out of mind without substantial difficulty were we to remand the case to that judge for the third time.”

Divorce; Attorney fees under MCR 3.206(D)(2); Effect of the lack of subject-matter jurisdiction to modify the out-of-state spousal support order; Stackhouse v Stackhouse; Myland v Myland; Sanctions for bringing a frivolous claim; MCR 2.625(A)(2); Effect of failing to move for such sanctions; Uniform Interstate Family Support Act (UIFSA); MCL 552.2603(3)

Holding that “the trial court abused its discretion by denying attorney fees under MCR 3.206(D)(2) because it lacked subject-matter jurisdiction to modify the out-of-state spousal support order,” the court reversed and remanded. The parties were divorced pursuant to a judgment entered in a Virginia court. Plaintiff-ex-husband “registered the out-of-state spousal-support order in Michigan” and moved to terminate spousal support. The trial court sua sponte ruled that it did not have “subject-matter jurisdiction to modify the out-of-state spousal-support order.” Defendant-ex-wife then sought an order for plaintiff to pay her attorney fees. The “trial court declined considering an award of attorney fees solely because it lacked jurisdiction to modify the spousal-support order.” The court found that in so doing, the trial court abused its discretion, and it remanded for the trial court to address the motion for attorney fees under MCR 3.206(D)(2)(a). Here and in Stackhouse, “the trial court did not have jurisdiction to enter an order regarding the underlying proceedings. Stackhouse is distinct because it involved the death of a party to the divorce.” Throughout the proceedings there, “the trial court had jurisdiction, but lost it upon the death of a party. In this case, under the UIFSA, the trial court had jurisdiction respecting the enforcement of a support order issued in another state, but it lacked jurisdiction to modify such order if the issuing tribunal had jurisdiction. MCR 3.206(D) plainly intends to provide a party in a domestic relations case who lacks the ability to bear the expense of litigation the requisite means to defend against an action both during and after proceedings, regardless of the party’s success on the merits.” As the court observed in Stackhouse, “‘the interests of justice are served when the financially deprived party to a divorce action is furnished with the requisite means of prosecuting or defending the suit.’” The court concluded that despite “the limitation of the trial court’s authority to render a decision on the underlying dispute, defendant was forced to defend herself over an extended period. The lack of jurisdiction to modify the support award did not result in defendant not having to properly defend herself throughout the proceedings.”

Priority for payment of personal protection insurance (PIP) benefits; MCL 500.3114(1); Whether use of the word “residing” provides broader coverage than “domiciled”; Grange Ins Co v Lawrence; Workman v Detroit Auto Inter-Ins Exch; Whether an insurer can provide for broader PIP benefits than those required by the No-Fault Act; Michigan Assigned Claims Plan (MACP)

Noting that relevant cases had not clearly resolved the issue, the court held that a no-fault policy may provide broader coverage than statutorily mandated, even as to a mandated coverage. Further, the policy language at issue here provided “a broader category of eligible recipients of PIP benefits beyond the statutorily requirement of coverage for those relatives domiciled in a named insured’s household.” In addition, there was a genuine issue of material fact as to whether plaintiff was eligible for PIP benefits under defendant-Progressive’s policy. Thus, the court affirmed the trial court’s denial of summary disposition motions by Progressive and defendant-Farm Bureau Mutual Insurance Company, and remanded. The insurers disputed which of them was required to pay plaintiff’s PIP benefits after she was injured in an auto accident while a passenger in a car that she co-owned. The other titled owner of the car was her ex-husband, M. She and M were divorced but continued residing together in a home, along with an adult daughter (D). The declarations page of Progressive’s policy (which covered the car and other vehicles) listed plaintiff, M, and D as drivers and resident relatives; it also listed M and D, “but not plaintiff, as named insureds.” When Progressive denied plaintiff’s claim, she applied for benefits through the MACP, and Farm Bureau was assigned her claim. The court found that Progressive was responsible for paying “her PIP benefits under MCL 500.3114(1) if she is domiciled in the same household as” D. If she was not (and the court determined there was no fact issue as to whether D was domiciled in the home – she was not), Progressive was responsible for payment “only if the policy language creates that obligation and plaintiff resides in the same household as” D. The court noted that “this distinction between the statute’s use of the term ‘domiciled’ and the policy’s use of the word ‘residing’” was at the heart of the dispute. Assuming they were not domiciled in the same household, the questions presented were “(1) whether the use of the word ‘residing’ provides broader coverage than ‘domiciled’ and, if so, (2) whether an insurer can provide for broader PIP benefits than those required by statute.” The court answered both in the affirmative.

Motion for recusal of the trial court judge in a termination case; MCR 2.003(C)(1)(b)(ii); Canon 2(A) of the MI Code of Judicial Conduct; Okrie v State; Procedural due process; Right to the effective assistance of counsel; Court-appointed counsel payment policies & procedures; Prejudice

The court held that an objective analysis of the facts and proceedings in this termination case did not support respondent-mother’s claim that the trial court judge was required to recuse herself “under MCR 2.003(C)(1)(b) and Code of Judicial Conduct, Canon 2.” It also found no merit in respondent’s unpreserved arguments that her rights to procedural due process and to effective assistance of counsel were violated. Thus, it affirmed the order terminating her parental rights. Four years before the start of this case, “the judge’s husband and her then partner in their law firm, represented a man with whom respondent had a child custody dispute.” The court noted the child involved in that case was not the one involved here (M) “and the person represented was never a party to this action.” The court found that respondent offered “nothing but abstract speculation that the fact of the judge’s husband’s representation alone creates a perception of impropriety, and that the judge’s ability to judge with integrity, impartiality, and competence may have been impaired.” Further, the court’s review of the file did “not permit a reasonable mind to conclude that an appearance of impropriety existed. From an objective analysis, no reasonable mind could perceive that Judge Sharma’s ability to faithfully carry out her judicial responsibilities suffered from any impairment.” In addition, respondent’s motion was untimely. MCR 2.003(D)(1)(a) “requires filing all motions for disqualification within 14 days of discovery of the grounds for disqualification.” She filed her motion over a month after the trial court issued the termination order. The case had been ongoing for nearly two years. She also asserted the trial court did not ensure that she received reports, and that its “court-appointed counsel payment policy— which she alleges does not pay for counsel’s review of reports ahead of hearings—prevented [her] counsel from providing effective assistance.” But she did not point to even one “report that she and her counsel did not receive,” or show from the record that any reports “were in fact untimely submitted” and she failed “to establish that her counsel lacked preparation or otherwise failed to provide her” with effective assistance. The court noted it was significant that on appeal, respondent did not challenge the trial court’s rulings “that statutory grounds for termination existed” and that termination was in M’s best interests.

Limitations period for victims of criminal sexual conduct; MCL 600.5851b(1)(b); Accrual of claims involving sexual assault; MCL 600.5827; Lemmerman v Fealk; Whether MCL 600.5851b(1)(b) applied retroactively; The LaFontaine factors; LaFontaine Saline, Inc v Chrysler Group, LLC; Legislative intent; Diocese of Lansing (DOL); Archdiocese of Baltimore (AOB)

Holding that “based on the language of MCL 600.5851b(1)(b), the Legislature plainly did not intend for that subsection to apply retroactively to claims that were already time-barred before the statute was enacted in 2018,” the court reversed the trial court to the extent it held otherwise, and remanded for entry of an order granting defendants-Dioceses’ (DOL and AOB) motions for summary disposition. In 2021, plaintiff sued the DOL and the AOB as well as defendant-priest (Lobert) for negligence based on Lobert’s sexual abuse of plaintiff in 1999, when he was a minor. Defendants moved for summary disposition on the ground that the claims were time-barred. The trial court disagreed, finding plaintiff’s claims did not accrue until 11/20 when he made the causal connection between the sexual abuse and his mental health issues. It also found that, “even if retroactivity was an issue, it would hold that MCL 600.5851b(1)(b) applied retroactively” based on the Legislature’s purpose in enacting the statute. On appeal, the court agreed with defendants that plaintiff’s claims were time-barred. “MCL 600.5851b does not change the date of accrual for a claim to recover damages sustained by an individual who, while a minor, was the victim of criminal sexual conduct. Rather, [it] simply extends the time that an individual has to bring such a claim, i.e., it extends the statute of limitations.” It noted that “[a]ny statute of limitations applicable to plaintiff’s claims when they accrued in 1999 had long since expired by the time he filed his complaint in 2021.” It then found the statute did not apply retroactively. “MCL 600.5851(1)(b) contains no clear and unequivocal manifestation suggesting that the Legislature intended for it to apply retroactively. Further, statutes of limitations in this context do not fall into the ‘remedial-procedural exception to prospective application,’ which lends further support for the conclusion that MCL 600.5851b(1)(b) should apply prospectively only.” As such, “regardless of whether applying the subsection retroactively to these defendants would impair a vested right,” MCL 600.5851b(1)(b) may not be applied retroactively, and plaintiff’s claim was time-barred.

Jurisdiction; Whether the proposed class actions should have been removed to federal court under the Class Action Fairness Act (CAFA); 28 USC § 1332(d)(11)(B)(i); Whether the CAFA’s “local controversy” exception applied; § 1332(d)(4)

The court held that the two state-court complaints at issue were properly removed under CAFA where the complaints involved claims of 100 or more people to be tried jointly, and contained “common questions of law or fact.” Plaintiffs-class representatives were coal miners in Kentucky who, despite wearing respirators manufactured by defendant-3M, developed pneumoconiosis, which is caused by inhaling dust particles. They each filed suits in state court against 3M and other manufacturers and retailers, naming hundreds of co-plaintiffs and alleging that the respirators were defective. “3M removed the cases to federal court on CAFA, federal question, and diversity grounds.” The district court remanded the cases to state court. 3M appealed. The issue was whether the cases qualified “as CAFA mass actions.” The one requirement that was in question was whether the representative plaintiffs sought to try claims involving 100 or more people jointly on the basis the claims involved “common questions of law or fact[.]” The court concluded that the complaints met this standard where “they assert[ed] parallel claims on behalf of more than 100 plaintiffs, all proceeding on the theory that the claims are similar enough to merit adjudication in tandem. It should not come as a surprise that CAFA covers them.” The court rejected plaintiffs’ argument that their cases may eventually involve different questions of law or fact where, “at most this suggests they might have made an unwarranted proposal for a joint trial grounded on common questions.” It also rejected their assertions based on federalism. The court opined that plaintiffs could have avoided removal by filing separate actions with fewer than 100 plaintiffs and by not proposing a joint trial. They also argued that remand should be affirmed under the CAFA’s “local controversy” exception. But the court found that the exception could not apply because the “‘real target in this action’” was 3M, which is not a Kentucky defendant. Thus, the controversy was not local. Reversed and remanded.

Petition for rehearing en banc; First Amendment & Religious Freedom Restoration Act (RFRA) challenges to the U.S. Air Force’s vaccine mandate; “Strict scrutiny”; Applicability of an “abstention test” to the RFRA claim; Mindes v Seaman (5th Cir); Scope of an injunction; Class certification; FedRCivP 23

In an order, the court denied a petition for rehearing and rehearing en banc of an opinion (see e-Journal # 78546 in the 12/19/22 edition) regarding an Air Force COVID-19 vaccine mandate. The court noted that the petition did not seek review of the issues the panel’s opinion decided and instead sought to have the opinion and the preliminary injunctions vacated based on subsequent mooting of the appeal and injunctions. The original panel reviewed the petition for panel rehearing and “concluded that the district court should review this mootness question in the first instance.” It further determined “that, even if the preliminary injunctions were now moot, that fact would not provide a basis for the ‘extraordinary remedy of vacatur’ of the panel’s opinion.” The petition was then “circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.”

Limitations period for victims of criminal sexual conduct; MCL 600.5851b(1)(b); Accrual of claims involving sexual assault; MCL 600.5827; Lemmerman v Fealk; Whether MCL 600.5851b(1)(b) applied retroactively; The LaFontaine factors; LaFontaine Saline, Inc v Chrysler Group, LLC; Legislative intent; Diocese of Lansing (DOL); Archdiocese of Baltimore (AOB)

Holding that “based on the language of MCL 600.5851b(1)(b), the Legislature plainly did not intend for that subsection to apply retroactively to claims that were already time-barred before the statute was enacted in 2018,” the court reversed the trial court to the extent it held otherwise, and remanded for entry of an order granting defendants-Dioceses’ (DOL and AOB) motions for summary disposition. In 2021, plaintiff sued the DOL and the AOB as well as defendant-priest (Lobert) for negligence based on Lobert’s sexual abuse of plaintiff in 1999, when he was a minor. Defendants moved for summary disposition on the ground that the claims were time-barred. The trial court disagreed, finding plaintiff’s claims did not accrue until 11/20 when he made the causal connection between the sexual abuse and his mental health issues. It also found that, “even if retroactivity was an issue, it would hold that MCL 600.5851b(1)(b) applied retroactively” based on the Legislature’s purpose in enacting the statute. On appeal, the court agreed with defendants that plaintiff’s claims were time-barred. “MCL 600.5851b does not change the date of accrual for a claim to recover damages sustained by an individual who, while a minor, was the victim of criminal sexual conduct. Rather, [it] simply extends the time that an individual has to bring such a claim, i.e., it extends the statute of limitations.” It noted that “[a]ny statute of limitations applicable to plaintiff’s claims when they accrued in 1999 had long since expired by the time he filed his complaint in 2021.” It then found the statute did not apply retroactively. “MCL 600.5851(1)(b) contains no clear and unequivocal manifestation suggesting that the Legislature intended for it to apply retroactively. Further, statutes of limitations in this context do not fall into the ‘remedial-procedural exception to prospective application,’ which lends further support for the conclusion that MCL 600.5851b(1)(b) should apply prospectively only.” As such, “regardless of whether applying the subsection retroactively to these defendants would impair a vested right,” MCL 600.5851b(1)(b) may not be applied retroactively, and plaintiff’s claim was time-barred.

Termination under § 19b(3)(c)(i); Child’s best interests; In re White

Holding that the trial court did not clearly err in finding that § (c)(i) was established and that termination was in the child’s (M) best interests, the court affirmed the order terminating respondent-mother’s parental rights. She pled no contest to the allegations in the petition requesting that the trial court exercise jurisdiction over M, including drug use at the time of M’s birth and the birth of another child, and she admitted she had a mental breakdown. She “was provided with a treatment plan designed to address the conditions that brought” M into the DHHS’s “care. At the time of the termination hearing—16 months after respondent entered her plea—respondent had not rectified these conditions. [She] participated in the psychological evaluation, but she failed to participate afterward in any meaningful mental health treatment.” Further, she did not follow through with any of the DHHS’s “mental health referrals and continued to exhibit erratic behavior during her visits with” M. In addition, while she “minimally complied with the Substance Abuse Support Services referral by maintaining contact with the assigned worker once a month,” she only submitted to 5 drug screens over a 16-month period. She denied needing substance abuse treatment at the termination hearing, stating that while “she had been an addict years ago, she was now sober and not in need of treatment. Despite the evidence that she and [M] tested positive for cocaine at [M’s] birth—a fact that respondent denied—and that respondent tested positive for amphetamines after” an incident at a hotel, she “continued to minimize her drug use and need for substance abuse treatment. Respondent also minimized her fiancé’s drug use, explaining that he had suffered a death in the family, which caused a relapse for which he quickly sought help.” Given this evidence and her efforts “to minimize the myriad issues identified in the treatment plan,” the court agreed with the trial court that the conditions leading to M’s “adjudication continued to exist and were not reasonably likely to be rectified within a reasonable period of time considering the child’s age.” Further, in light of “respondent’s lack of participation in the treatment plan, her failure to participate in efforts to ensure [M’s] well-being, and her lack of commitment to creating a bond with” M, the court held that the trial court did not clearly err in finding that termination was in M’s best interests.

Motion for recusal of the trial court judge in a termination case; MCR 2.003(C)(1)(b)(ii); Canon 2(A) of the MI Code of Judicial Conduct; Okrie v State; Procedural due process; Right to the effective assistance of counsel; Court-appointed counsel payment policies & procedures; Prejudice

The court held that an objective analysis of the facts and proceedings in this termination case did not support respondent-mother’s claim that the trial court judge was required to recuse herself “under MCR 2.003(C)(1)(b) and Code of Judicial Conduct, Canon 2.” It also found no merit in respondent’s unpreserved arguments that her rights to procedural due process and to effective assistance of counsel were violated. Thus, it affirmed the order terminating her parental rights. Four years before the start of this case, “the judge’s husband and her then partner in their law firm, represented a man with whom respondent had a child custody dispute.” The court noted the child involved in that case was not the one involved here (M) “and the person represented was never a party to this action.” The court found that respondent offered “nothing but abstract speculation that the fact of the judge’s husband’s representation alone creates a perception of impropriety, and that the judge’s ability to judge with integrity, impartiality, and competence may have been impaired.” Further, the court’s review of the file did “not permit a reasonable mind to conclude that an appearance of impropriety existed. From an objective analysis, no reasonable mind could perceive that Judge Sharma’s ability to faithfully carry out her judicial responsibilities suffered from any impairment.” In addition, respondent’s motion was untimely. MCR 2.003(D)(1)(a) “requires filing all motions for disqualification within 14 days of discovery of the grounds for disqualification.” She filed her motion over a month after the trial court issued the termination order. The case had been ongoing for nearly two years. She also asserted the trial court did not ensure that she received reports, and that its “court-appointed counsel payment policy— which she alleges does not pay for counsel’s review of reports ahead of hearings—prevented [her] counsel from providing effective assistance.” But she did not point to even one “report that she and her counsel did not receive,” or show from the record that any reports “were in fact untimely submitted” and she failed “to establish that her counsel lacked preparation or otherwise failed to provide her” with effective assistance. The court noted it was significant that on appeal, respondent did not challenge the trial court’s rulings “that statutory grounds for termination existed” and that termination was in M’s best interests.