Family Medical Leave Act (FMLA); 29 USC § 2612(a)(1)(D); § 2615(a)(2); Woodman v Miesel Sysco Food Serv Co; Distinguishing Schindewolf v City of Brighton (ED MI); Discrimination under the Persons With Disabilities Civil Rights Act (PWDCRA); Discrimination based on a medical disability; MCL 37.1102; MCL 37.1302; Comparing MCL 37.1103(d)(i)(A) & (B); At-will employment; Landin v Healthsource Saginaw, Inc; Public policy exception; Suchodolski v Michigan Consol Gas Co; Civil rights claim under 42 USC § 1983; Mettler Walloon, LLC v Melrose Twp; Payton v Detroit; Elliott-Larsen Civil Rights Act (ELCRA)

The court held that the trial court erred by denying defendants-city and supervisor summary disposition of plaintiff-employee’s FMLA and PWDCRA claims, and by failing to dismiss his claim that they violated public policy as to his decision to leave his position with the city. His § 1983 claim against the supervisor should also have been dismissed. Plaintiff sought an extended medical leave when his FMLA leave ended, but ultimately decided to retire from his position as Second Deputy Fire Commissioner (SDFC) instead of taking a blood test. He inquired about using his accumulated sick leave to remain off work until he reached his 25th work anniversary so he could retire with 25 years of service. The city’s HR department later informed him he was considered absent without leave for not appearing for the blood test. He was able to retire, but with less than 25 years of service, and he did not retire from the position of SDFC, resulting in a lower pension. Instead of using his accumulated sick leave to extend his years of service, he was paid for its value after he retired. Plaintiff alleged violations of the FMLA and the PWDCRA, age discrimination under the ELCRA, public-policy violations, and violation of his civil rights. The trial court granted defendants summary disposition as to his age discrimination claim, but denied it as to his other claims. On appeal, the court agreed with defendants that plaintiff did not establish a prima facie case of FMLA discrimination. There was “no evidence that the handling of plaintiff’s situation involved discrimination or retaliation related to plaintiff’s previous use of FMLA leave, particularly when defendants were expecting plaintiff to return to his position and it was plaintiff, not defendants, who initiated the retirement plans that led to” his separation. It also concluded that they were entitled to summary disposition of plaintiff’s PWDCRA claim. Because he “chose to end the process for obtaining a medical leave of absence before a decision was made on that request, there [was] no support for his claim that he was denied the right to use sick leave due to his disability.” The court further held that they should have been granted summary disposition of his public-policy violation claim. “There was no evidence supporting an inference that plaintiff was removed from his [SDFC] position for exercising any right guaranteed by law, executing a duty required by law, or refraining from violating the law.” Finally, he failed to show he had a claim against the supervisor under § 1983. Reversed and remanded.

Venue; People v Houthoofd; Harmless error; MCL 762.8; Applicability of MCL 762.9; Admission of an autopsy photo & text messages; MRE 403; Right to a fair trial; Inadvertent display of a photo of defendant in jail to the jury; The veil of judicial impartiality; People v Stevens; Questioning of a defense expert; MCR 614(b)

While the court found that venue for the charges in one of these consolidated cases in Macomb County was improper, it held that the error was harmless. It upheld the admission of a black and white autopsy photo depicting the murder victim’s (F) dead fetus as well as text messages between defendant and F. It concluded that he was not denied a fair trial by the inadvertent display of a photo of him in jail to the jury, and that the trial court’s questioning of a defense expert (B) did not pierce the veil of judicial impartiality. Thus, the court affirmed defendant’s convictions of AWIM, FIP, carrying a weapon with unlawful intent, third-degree fleeing and eluding, and felony-firearm in one case (Docket No. 347207), and first-degree premeditated murder, assault of a pregnant individual causing a miscarriage or stillbirth, and felony-firearm in the other case. The charges in Docket No. 347207 arose from his conduct in Lapeer County the day after F was murdered in Macomb County. While the prosecution asserted that “a defendant fleeing into Lapeer County has an effect on Macomb County for the sole reason that the original crime was committed in Macomb County[,]” the court disagreed. As to the argument that venue in Macomb County was proper “because all of defendant’s acts were part of the same plan,” the court noted that “being part of the same ‘plan’ or having events ‘linked’ is not the test for determining whether venue is proper in a county where the crime did not take place. The relevant inquiry under MCL 762.8 is whether defendant intended any of his acts in Lapeer County to have any effect in Macomb County.” The court found that the answer here was no. Further, MCL 762.9 did not apply “to place venue with Macomb County.” But while the trial court abused its discretion in denying defendant’s motion to dismiss the Lapeer County charges due to venue, the court concluded that the error was harmless. Given that the evidence of his guilt of those crimes was overwhelming, he did not show “that the result would have been different had he been tried in Lapeer County.” As to the photo of defendant, it did not suggest that he “was in a jail and did not somehow taint his presumption of innocence.” While the trial court’s questioning of B about bullet metal jackets appeared unnecessary, it did not show bias against B or defendant.

Restitution; Whether the general restitution statute (MCL 769.1a) conflicts with the misdemeanor restitution statute (MCL 780.826); People v Garrison; Misdemeanors under the Crime Victim’s Rights Act; The “criminal activity” exception; MCL 780.752(3); Whether a moving violation causing death under MCL 257.601d(1) is a civil infraction, a crime, or a misdemeanor; MCL 780.811(1)(a)(i)-(xvii); “Defendant”; MCL 780.811(1)(c); “Victim”; “Misdemeanor”; MCL 780.826(1)(a); “Serious misdemeanor”; MCL 780.766; Waiver; People v Bragg

Holding that the prosecution did not waive its restitution claim, but that only the general restitution statute applied, the court reversed and remanded. Defendant pled no contest to a moving violation causing death after she turned left at an intersection and struck the victim, a motorcyclist. The prosecution sought restitution on behalf of his estate. The district court found that the victim’s operation of his motorcycle without an endorsement barred a restitution award. The circuit court ruled that the prosecution waived its restitution claim. On appeal, the court found that the circuit court erred by determining that the prosecution waived its restitution claim. “The district court referenced MCL 780.752, a felony restitution statute, and the prosecutor agreed with the district court’s interpretation of that statute. But the prosecution’s restitution argument focused on the general and misdemeanor restitution statutes, and not the felony statute. The prosecutor’s agreement with the district court regarding an inapplicable statute did not constitute a waiver of restitution arguments premised on other statutory provisions.” The court next found that the plain language of the misdemeanor restitution statute precluded its application to defendant “because she was charged with and convicted of a nonserious misdemeanor.” However, the general restitution statute remained applicable “because the two restitution statutes are readily reconcilable and represent alternative routes to restitution orders.” Because defendant was charged with and convicted of “a moving violation causing death and that offense does not qualify as a ‘serious misdemeanor,’ [she] was not a ‘defendant’ for purposes of the payment of restitution under MCL 780.826.” However, as a “defendant convicted of a misdemeanor, she is liable for restitution under MCL 769.1a, the general restitution statute.” Finally, it found no irreconcilable conflict between the two statutes. It noted that while the provisions of the statutes “differ regarding the types of misdemeanors for which restitution must be ordered,” it found “no reason that they cannot harmoniously coexist.” In addition, “[a]pplying the general restitution statute under the circumstances of this case fulfills constitutional goals.” The court also noted that “the general restitution statute does not authorize trebling damages, perhaps reflecting legislative recognition that in a nonserious misdemeanor case this penalty might be disproportionate.”

Writ of superintending control; Request for grand-jury records within a reasonable time; “Clear legal duty” to furnish the records; MCR 6.107(B)(1) & (2); 14-day requirement

Because plaintiff failed to show that he filed his request for the grand-jury records at issue within a reasonable time, the court denied his request for a writ of superintending control to compel production of the records. He filed this original action in the court for a writ of superintending control to compel defendant-circuit court judge to release grand-jury records relating to his 1997 first-degree murder conviction. The court held that “defendant erred insofar that she stated that access to grand-jury material ‘can only be granted by the judge presiding in the criminal case at trial or in post-conviction proceedings.’” However, to be entitled to a writ of superintending control, plaintiff had to “establish that defendant had a ‘clear legal duty’ to furnish the records.” His motion clearly did not satisfy the 14-day requirement. Thus, he had to “establish that he requested the records within a reasonable time upon a showing of good cause and that the interests of justice would be served by providing him with the records.” He asserted he needed the “records in order to prepare a motion for relief from judgment. Even if such a reason could support a finding of good cause for the request,” it did not alone show that he made it within a reasonable time. While he claimed “to be seeking records of additional testimony that he and his attorney did not receive at the time of his trial, plaintiff concedes that he knew before trial that approximately 30 witnesses had testified at the grand-jury proceedings, and that he was” given transcripts of only 9 such “witnesses before trial, and an additional transcript of another witness during trial.” He admitted in his brief that shortly after he was arraigned in 8/96, a witness told “him that she was one of approximately 30 witnesses who testified before the grand jury. Thus, plaintiff knew before his trial that he had not received transcripts for all of the witnesses who supposedly testified before the grand jury. He never sought the production of additional grand-jury records or transcripts before trial, and he never argued in his direct appeal that he was improperly denied additional grand-jury records. It was not until approximately 20 years later plaintiff began his quest to obtain additional grand-jury records.” Thus, his own admissions showed “he had information before his trial that additional grand-jury records might exist, and he never requested or argued that he was entitled to any additional records.” As a result, he could “not establish that his efforts to obtain the records, beginning in 2016, were made within a reasonable time.” Thus, defendant did not have a clear legal duty to provide them.

Right to self-representation; Indiana v Edwards; Waiver of right to counsel; MCR 6.005(D); People v Anderson

The court held that the trial court did not abuse its discretion by denying defendant’s request for self-representation. He was convicted of two counts of second-degree murder, two counts of felonious assault, AWIM, FIP, and six counts of felony-firearm, arising from a physical altercation and double-murder that occurred at an apartment building. The trial court sentenced him as a fourth-offense habitual offender to 25 to 50 years for each second-degree murder conviction and his AWIM conviction, 1 to 4 years for each of felonious assault conviction, 1 to 5 for FIP, and 2 years for each of his felony-firearm convictions. On appeal, the court rejected his argument that the trial court erred by denying his request to represent himself at trial. It noted that although the trial court “did not proceed systematically by considering the Anderson” criteria, it did explain “the ‘risk involved in self representation,’ given that the trial was scheduled to commence in four days, and defendant had just received his discovery package.” In addition, the trial court’s observation that “no one would be able to prepare for ‘this trial’ over a weekend might reasonably be presumed to refer to the severity of the charges,” which included two counts of first-degree murder, and the sentences such charges carried. “After the trial court’s warning, defendant affirmed that he understood and apparently acquiesced to the trial court’s recommendation since he did not contest the trial court’s advice or renew his request to represent himself anytime thereafter.” Finally, the record showed defendant “was given the benefit of both self-representation and representation by his trial counsel . . . .” In light of the trial court’s “initial advice to defendant, [his] statement that he understood the [trial] court’s position, and his apparent abandonment of the request for self-representation,” the court could not “say that defendant’s initial request for self-representation was unequivocal.” Affirmed.

Motion to sever the trials; Ineffective assistance of counsel; Failure to provide an offer of proof or an affidavit to support defendant’s motion to sever the trials; Armed robbery under an aiding & abetting theory; MCL 750.529; Felony-firearm under an aiding & abetting theory; MCL 750.227b

In Docket No. 351693, the court held that defendant-Ford was not prejudiced by a joint trial, with separate factfinders; thus, the trial court properly denied his motion for severance. Also, he was not denied the effective assistance of counsel. In Docket No. 351576, there was sufficient evidence to support defendant-Neal’s convictions of aiding and abetting both armed robbery and felony-firearm. Thus, it affirmed the convictions and sentences of each defendant. In these consolidated appeals, Ford and Neal, who were tried jointly before separate factfinders, appealed their convictions and sentences. Ford argued that the trial court erred in denying his motion to sever the trials. The court disagreed. Even “if the trials had been severed, the prosecution could have called Neal to testify, as her testimony constituted a waiver of her Fifth Amendment right against self-incrimination, and thus nothing to which Neal testified would have been barred had they been tried separately. Further, there was a partial severance through separate factfinders.” The court concluded that the “allowance of inconsistent verdicts, through the mechanism of separate factfinders, necessarily means there were not irreconcilable defenses, and thus any prejudice arising from the joint trial was thereby significantly mitigated. Moreover, the joint trial did not preclude Ford from presenting a defense.” During Ford’s closing argument, defense counsel argued that neither the surveillance videos nor the photos “of the actual shooting showed the face of the shooter; thus, there was no evidence that Ford was the shooter. Trial counsel also urged the jury to consider why Neal may have had a motive to lie regarding Ford’s involvement.” Thus, Ford failed to show “any specific trial right was violated by the joint trial; the trial court thus did not abuse its discretion in denying Ford’s motion to sever.”

Family Medical Leave Act (FMLA); 29 USC § 2612(a)(1)(D); § 2615(a)(2); Woodman v Miesel Sysco Food Serv Co; Distinguishing Schindewolf v City of Brighton (ED MI); Discrimination under the Persons With Disabilities Civil Rights Act (PWDCRA); Discrimination based on a medical disability; MCL 37.1102; MCL 37.1302; Comparing MCL 37.1103(d)(i)(A) & (B); At-will employment; Landin v Healthsource Saginaw, Inc; Public policy exception; Suchodolski v Michigan Consol Gas Co; Civil rights claim under 42 USC § 1983; Mettler Walloon, LLC v Melrose Twp; Payton v Detroit; Elliott-Larsen Civil Rights Act (ELCRA)

The court held that the trial court erred by denying defendants-city and supervisor summary disposition of plaintiff-employee’s FMLA and PWDCRA claims, and by failing to dismiss his claim that they violated public policy as to his decision to leave his position with the city. His § 1983 claim against the supervisor should also have been dismissed. Plaintiff sought an extended medical leave when his FMLA leave ended, but ultimately decided to retire from his position as Second Deputy Fire Commissioner (SDFC) instead of taking a blood test. He inquired about using his accumulated sick leave to remain off work until he reached his 25th work anniversary so he could retire with 25 years of service. The city’s HR department later informed him he was considered absent without leave for not appearing for the blood test. He was able to retire, but with less than 25 years of service, and he did not retire from the position of SDFC, resulting in a lower pension. Instead of using his accumulated sick leave to extend his years of service, he was paid for its value after he retired. Plaintiff alleged violations of the FMLA and the PWDCRA, age discrimination under the ELCRA, public-policy violations, and violation of his civil rights. The trial court granted defendants summary disposition as to his age discrimination claim, but denied it as to his other claims. On appeal, the court agreed with defendants that plaintiff did not establish a prima facie case of FMLA discrimination. There was “no evidence that the handling of plaintiff’s situation involved discrimination or retaliation related to plaintiff’s previous use of FMLA leave, particularly when defendants were expecting plaintiff to return to his position and it was plaintiff, not defendants, who initiated the retirement plans that led to” his separation. It also concluded that they were entitled to summary disposition of plaintiff’s PWDCRA claim. Because he “chose to end the process for obtaining a medical leave of absence before a decision was made on that request, there [was] no support for his claim that he was denied the right to use sick leave due to his disability.” The court further held that they should have been granted summary disposition of his public-policy violation claim. “There was no evidence supporting an inference that plaintiff was removed from his [SDFC] position for exercising any right guaranteed by law, executing a duty required by law, or refraining from violating the law.” Finally, he failed to show he had a claim against the supervisor under § 1983. Reversed and remanded.

Juvenile guardianship & visitation; MCL 712A.19a(10); MCR 3.979(E); MCL 700.5215; Falconer v Stamps

The court reversed the trial court’s order denying the guardian-Ridolphi’s challenge to the trial court’s authority to grant visitation with the child-E’s paternal relatives. This case involved Jeanann Upperstrom, the paternal aunt, seeking parenting time for, purportedly, the entire paternal family. The court held that the trial court committed a clear legal error when it concluded that it had the authority to order visitation with the paternal relatives, including E's paternal grandmother (Patsy), organized by Jeanann. The court held that there seemed to be a suggestion the “trial court’s authority for entering visitation orders sprung from the grandparenting time statute, MCL 722.27b. Reading the record in such a manner would defy logic and common sense.” The clear implication from the proceedings was that “parenting time was being ordered for the Upperstorms, not Patsy.” Thus, the trial court’s order “requiring visitation with Jeanann and her family, but not Patsy, lacked legal authority.” Importantly, even if it were true that Jeanann was merely representing Patsy’s interests in the case, “the appropriate procedural steps were not taken to ensure grandparenting time.” Under MCL 722.27b(3)(a), when, as here, “‘the circuit court has continuing jurisdiction over the child, the child’s grandparent shall seek a grandparenting time order by filing a motion . . . . ’” Further, the required motion “‘shall be accompanied by an affidavit setting forth facts supporting the requested order.’” Here, there was “no evidence of a motion filed by Patsy, or Jeanann on Patsy’s behalf, seeking a grandparenting time order.” Thus, the trial court had “no legal authority under MCL 722.27b to grant court-ordered visitation” to E’s paternal family. There was “no statutory support for Jeanann, on her own, to request court-ordered visitation either.” This analysis of the issue was supported by Falconer. The same problem existed here. Jeanann and her family had no authority to seek court-ordered visitation with E. "While Patsy does have such authority under the law, there are certain procedural requirements. In pertinent part, she was required to file a motion along with a supporting affidavit.” Her failure to do so, like the paternal grandmother’s failure in Falconer, was fatal to a claim for grandparenting time. “In sum, the trial court only had legal authority to award court-ordered visitation for Patsy, but the procedural requirements for doing so were not met in this case.”

Interplay between FOIA & the OMA; Whether a document was unprotected by the OMA & disclosable under FOIA; Distinguishing Titus v Shelby Charter Twp; Construing exemptions from MCL 15.243; Bradley v Saranac Cmty Sch Bd of Educ; Detroit Free Press, Inc v Detroit; MCL 15.263(3); Traverse City Area Public Schools Board of Education (TCAPS)

The court held that “documents otherwise discoverable under FOIA are not generally rendered exempt merely because they provide the basis for a closed meeting under the OMA or are included in the official record of the same.” Thus, it affirmed partial summary disposition for plaintiff-newspaper as it related to disclosure of a document referred to as the Kelly document. The court also affirmed partial summary disposition for defendants-TCAPS and Kelly (the board president) as it related to the alleged OMA violation concerning the hiring of an interim superintendent (P). Defendants failed “to persuasively show how the Kelly document, which contained complaints against” the former superintendent, fell “within the plain and ordinary meaning of ‘minutes.’” Bradley, Detroit Free Press, and Titus, “when read together, suggest that, although the minutes and transcripts of a closed session are exempt from disclosure, various documents that may be relevant to or relied upon in the same are not necessarily exempt. In other words, the exact discussions and deliberations of those involved within the closed session are exempt; however, documents, such as personnel files, settlement agreements, and performance evaluations, that are brought into the closed session are disclosable where no individualized exemption exists for the same.” The court held that the Kelly document was such a document. Although “there may be situations in which such documents are not disclosable; for purposes of this appeal,” the court held that the trial court correctly determined that “the Kelly document was disclosable under FOIA, and that defendants could not render the document exempt merely because it was a subject of the closed meeting.” As to plaintiff’s claim that “defendants violated the OMA by hiring [P] without adequately addressing the same in a public meeting[,]” the record evidence established that defendants properly met in an open meeting on 10/17/19, and made the decision to hire P. Kelly affirmed that, although she approached P “about the position, no decision was made, and no contractual terms were discussed; the meeting was merely to inquire about his interest in the position.” Kelly was by herself and thus, there was no quorum in place to trigger MCL 15.263(3). “Plaintiff provided no evidence to rebut Kelly’s affidavit or to show that there were improper deliberations made outside of the [10/17/19] meeting with a quorum of TCAPS.” Further, it offered no authority “to show that the quality or length of deliberations was deficient for purposes of the OMA.”

Writ of superintending control; Request for grand-jury records within a reasonable time; “Clear legal duty” to furnish the records; MCR 6.107(B)(1) & (2); 14-day requirement

Because plaintiff failed to show that he filed his request for the grand-jury records at issue within a reasonable time, the court denied his request for a writ of superintending control to compel production of the records. He filed this original action in the court for a writ of superintending control to compel defendant-circuit court judge to release grand-jury records relating to his 1997 first-degree murder conviction. The court held that “defendant erred insofar that she stated that access to grand-jury material ‘can only be granted by the judge presiding in the criminal case at trial or in post-conviction proceedings.’” However, to be entitled to a writ of superintending control, plaintiff had to “establish that defendant had a ‘clear legal duty’ to furnish the records.” His motion clearly did not satisfy the 14-day requirement. Thus, he had to “establish that he requested the records within a reasonable time upon a showing of good cause and that the interests of justice would be served by providing him with the records.” He asserted he needed the “records in order to prepare a motion for relief from judgment. Even if such a reason could support a finding of good cause for the request,” it did not alone show that he made it within a reasonable time. While he claimed “to be seeking records of additional testimony that he and his attorney did not receive at the time of his trial, plaintiff concedes that he knew before trial that approximately 30 witnesses had testified at the grand-jury proceedings, and that he was” given transcripts of only 9 such “witnesses before trial, and an additional transcript of another witness during trial.” He admitted in his brief that shortly after he was arraigned in 8/96, a witness told “him that she was one of approximately 30 witnesses who testified before the grand jury. Thus, plaintiff knew before his trial that he had not received transcripts for all of the witnesses who supposedly testified before the grand jury. He never sought the production of additional grand-jury records or transcripts before trial, and he never argued in his direct appeal that he was improperly denied additional grand-jury records. It was not until approximately 20 years later plaintiff began his quest to obtain additional grand-jury records.” Thus, his own admissions showed “he had information before his trial that additional grand-jury records might exist, and he never requested or argued that he was entitled to any additional records.” As a result, he could “not establish that his efforts to obtain the records, beginning in 2016, were made within a reasonable time.” Thus, defendant did not have a clear legal duty to provide them.

Auto negligence; Owner liability; MCL 257.401(1); Intentional torts committed by the driver; Berry v Kipf; The wrongful conduct rule; Orzel by Orzel v Scott Drug Co; Aiding & abetting

Concluding that there was a fact question whether defendant-Gafken was carjacked by plaintiff and others, the court reversed summary disposition for defendants and remanded. Plaintiff sought to hold defendant-Dawson, the vehicle owner, liable for his injuries sustained in an auto accident. It was uncontested that he “gave Gafken permission to use his motor vehicle before the accident occurred.” Viewed in the light most favorable to plaintiff, the evidence supported “that, while driving Dawson’s vehicle with his express permission, Gafken—free of any coercion—fled from the police, drove well in excess of the speed limit, ran a red light, and crashed into other cars causing plaintiff’s injuries. Gafken’s conduct was clearly negligent[.]” Thus, a question of fact existed as to “whether Dawson was liable under MCL 257.401 for Gafken’s conduct while driving his car.” He contended he could not be liable for her conduct because it constituted an intentional tort. He seemed to assert that because the jury in Gafken’s criminal case found her actions showed “the intent necessary for second-degree murder,” the court had to conclude that she “had the intent necessary to commit an intentional tort.” But he did not specify the intentional tort she was supposed to have committed. Further, his belief that, if she “had the intent necessary to commit second-degree murder, she necessarily had the intent necessary to commit an (unidentified) intentional tort” was incorrect. Given that it was “unclear which ‘intent’ the jury” found she had when it convicted her, it was “impossible to determine that, as a matter of law, Gafken had the intent necessary to commit an (unidentified) intentional tort. Lastly, even if (1) the ‘intent’ that the jury determined Gafken had in her criminal case was discernable and (2) that intent was sufficient to conclude that plaintiff was injured as a result of” her intentional tort, Dawson failed to identify the legal principle under which her “second-degree murder conviction would establish that she committed an intentional tort as a matter of law in plaintiff’s action against Dawson.” The court also rejected the reasons the trial court gave for granting defendants summary disposition – (1) there was a carjacking that was an intervening cause, (2) plaintiff could not show the permissive use required under the statute, (3) the complaint was barred by MCL 600.2955a and 600.2959, and (4) the wrongful conduct rule.

Interplay between FOIA & the OMA; Whether a document was unprotected by the OMA & disclosable under FOIA; Distinguishing Titus v Shelby Charter Twp; Construing exemptions from MCL 15.243; Bradley v Saranac Cmty Sch Bd of Educ; Detroit Free Press, Inc v Detroit; MCL 15.263(3); Traverse City Area Public Schools Board of Education (TCAPS)

The court held that “documents otherwise discoverable under FOIA are not generally rendered exempt merely because they provide the basis for a closed meeting under the OMA or are included in the official record of the same.” Thus, it affirmed partial summary disposition for plaintiff-newspaper as it related to disclosure of a document referred to as the Kelly document. The court also affirmed partial summary disposition for defendants-TCAPS and Kelly (the board president) as it related to the alleged OMA violation concerning the hiring of an interim superintendent (P). Defendants failed “to persuasively show how the Kelly document, which contained complaints against” the former superintendent, fell “within the plain and ordinary meaning of ‘minutes.’” Bradley, Detroit Free Press, and Titus, “when read together, suggest that, although the minutes and transcripts of a closed session are exempt from disclosure, various documents that may be relevant to or relied upon in the same are not necessarily exempt. In other words, the exact discussions and deliberations of those involved within the closed session are exempt; however, documents, such as personnel files, settlement agreements, and performance evaluations, that are brought into the closed session are disclosable where no individualized exemption exists for the same.” The court held that the Kelly document was such a document. Although “there may be situations in which such documents are not disclosable; for purposes of this appeal,” the court held that the trial court correctly determined that “the Kelly document was disclosable under FOIA, and that defendants could not render the document exempt merely because it was a subject of the closed meeting.” As to plaintiff’s claim that “defendants violated the OMA by hiring [P] without adequately addressing the same in a public meeting[,]” the record evidence established that defendants properly met in an open meeting on 10/17/19, and made the decision to hire P. Kelly affirmed that, although she approached P “about the position, no decision was made, and no contractual terms were discussed; the meeting was merely to inquire about his interest in the position.” Kelly was by herself and thus, there was no quorum in place to trigger MCL 15.263(3). “Plaintiff provided no evidence to rebut Kelly’s affidavit or to show that there were improper deliberations made outside of the [10/17/19] meeting with a quorum of TCAPS.” Further, it offered no authority “to show that the quality or length of deliberations was deficient for purposes of the OMA.”

Petition to terminate a guardianship; MCL 700.5310(2) & (4); MCL 700.5306(1); MCL 700.5219(1)

The court held that in deciding a petition to terminate an adult guardianship, a probate court must determine that the ward is still incapacitated and that the guardian’s appointment is still needed to provide the ward continuing care and supervision. Because the probate court applied an incorrect legal framework in denying petitioner-Gordon’s petition to terminate his guardianship, the court reversed and remanded. The “probate court stated that the issue was governed by MCL 700.5219(1) and that the question to be answered was, ‘Is it in the best interest of [Gordon] for [the guardianship] to be terminated?’” The court noted that the probate court “repeatedly referenced the best-interest standard, and it ultimately found that there was no evidence indicating that terminating the guardianship was in Gordon’s best interest.” However, in making its ruling, it “applied the wrong legal standard. MCL 700.5219(1) governs guardians of minors” – Gordon is an adult and thus, his petition “should have been evaluated under MCL 700.5310.” The probate court must follow the same procedures applicable to a petition for appointment of a guardian in deciding a petition to terminate a guardianship. “In particular, a ward has the right ‘[t]o require that proof of incapacity and the need for a guardian be proven by clear and convincing evidence, as provided in [MCL 700.5306].’” The court further noted that “support for each finding must be ‘supported separately on the record.’” Because circumstances may have materially changed while the appeal was pending, the probate “court should consider up-to-date information on remand.”

Border fence dispute; Nuisance per se; Whether the zoning ordinance required fence height to be measured from the “established grade”; “Existing grade”; Absurd result argument; Intent; Effect of a subsequent ordinance amendment; “Spite-fence” nuisance claim; Kuzniak v Kozminski

Concluding that the trial court properly applied the plain language of the township zoning ordinance in ruling that plaintiffs failed to establish their nuisance per se claim, the court affirmed the no cause of action verdict for defendants in this border fence dispute. It also affirmed summary disposition for them on plaintiffs’ spite-fence nuisance claim, finding no genuine issue of material fact that the fence served the useful purposes of increasing privacy and abating altercations. Plaintiffs argued that the trial court erred as a matter of law in reasoning that the “zoning ordinance required fence height to be measured from the ‘established grade.’” The court disagreed. They asserted the trial court should have interpreted § 2.18 of the ordinance to require border fences “be measured from the ‘existing grade.’” However, that ordinance section clearly limited border fences to a height of “6 feet ‘as measured from the established grade of the property.’” The fact that the ordinance used both terms suggested they have different meanings, and another ordinance section defining “established grade” also indicated the term had “its own distinct meaning under the ordinance.” Given that § 2.18 states clearly and unambiguously “that border fences shall not exceed a height of 6 feet as measured from the established grade, and, when that section is read within the ordinance as a whole, there is no plausible reading of [§] 2.18 that permits ‘established grade’ to mean ‘existing grade,’ the trial court did not err by applying the zoning ordinance as written.” The court rejected plaintiffs’ reliance on the absurd results doctrine, finding that the trial court’s result here was “clearly not absurd.” Further, the subsequent amendment changing the relevant ordinance to now state “that fence height must be measured from the ‘existing grade’ reinforces that ‘established grade’ and ‘existing grade’ have different meanings.” As to the spite-fence claim, plaintiffs did not create a genuine issue of material fact as to whether the “fence was constructed solely for malicious purposes.” The court noted that even if it “was partially motivated by malice,” there were no further verbal altercations between the parties after it was constructed.

Termination under §§ 19b(3)(c)(ii) & (j); In re JK; Reasonable reunification efforts; MCL 712A.18f(3)(b) & (c); MCL 712A.19a(2); MCL 712A.19f(1), (2), & (4); In re Hicks/Brown; Due process; Right to a meaningful hearing; In re Rood; Timing; MCL 712A.19(3); Best interests of the child; In re Olive/Metts Minors

Holding that reasonable reunification efforts were made, that there was no due process violation, that at least one statutory ground was met, and that termination was in the child’s best interests, the court affirmed termination of respondents-parents’ parental rights. It rejected respondent-mother’s argument that the trial court erred by failing to order reasonable efforts before the initial termination hearing. After the trial court concluded that the DHHS failed to meet its initial burden as to a statutory ground, it “ordered the DHHS to initiate a case service plan and offer reasonable efforts to reunify the family.” In addition, her “blanket denial that the services offered were insufficient in light of her intellectual disability, without identifying any services that would have been appropriate in light of such disability or how the services that were offered were deficient,” did not establish error or prejudice. Further, “[g]iven the circumstances of the pandemic and the child’s health issues, video conferencing, photos, and videos were the only realistic way to continue forming a bond with the child, albeit not the best way. Still, mother’s refusal to engage in those activities for the first couple months of the pandemic does not amount to a failure by the DHHS to facilitate the development of a bond.” The court also rejected her claim that the trial court violated her due-process rights by not scheduling timely hearings, noting that any delay between hearings “can be attributed to the unprecedented COVID-19 pandemic and not to the trial court.” Moreover, the DHHS’s delay in filing a termination petition “actually provided more opportunity to mother to engage in services, benefit from services, and continue supervised parenting visits (albeit virtual) that she would have otherwise lost out on had the petition been timely filed . . . ." The court next rejected her contention that the DHHS failed to prove a statutory ground for termination. “As the trial court concluded, ‘[I]t just does not seem likely that these issues will be rectified within a reasonable time considering the age of the child.’ Mother repeatedly directs us to her consistent participation in services, but she fails to realize that she must ‘demonstrate that [she] sufficiently benefited from the services provided,’ of which there was insufficient evidence.” It also found that a “preponderance of the evidence supported a finding that termination of mother’s parental rights was in the child’s best interests.” Finally, the court rejected respondent-father’s argument that the DHHS failed to prove a statutory ground for termination, noting his “lack of insight or knowledge on how to properly parent the child causes a reasonable likelihood that the child would be harmed if returned to father’s care.”