Dispute over a divorce settlement; Binding arbitration under the Domestic Relations Arbitration Act (MCL 600.5070 et seq.); Eppel v. Eppel; A reviewing court’s authority to vacate an arbitration award; MCL 600.5081; Ann Arbor v. AFSCME; Police Officers Ass’n of MI v. Manistee Cnty.; Whether an arbitrator exceeded his or her powers; Washington v. Washington; Contract interpretation; Zurich Ins. Co. v. CCR & Co.; Brucker v. McKinlay Transp., Inc.; Davis v. LaFontaine Motors, Inc.; Priority Health v. Commissioner Office of Fin. & Ins. Servs.

Holding that the arbitrator did not exceed the scope of her authority and the trial court erroneously ruled on the merits of the parties’ settlement agreement, the court reversed the trial court’s decision to vacate the arbitration award and remanded for it to confirm the award. The parties reached a divorce settlement through mediation. After a consent judgment was entered, they entered into arbitration. The arbitrator issued an award applying an accrual method of accounting, which provided defendant-ex-wife “with property payments based on when funds were earned, not when funds were paid.” The arbitrator also detailed the documentation plaintiff-ex-husband was to provide defendant regarding accounting. Plaintiff moved to vacate the award, asserting “that the arbitrator issued an award that was inconsistent with the agreements.” The trial court agreed, finding “the settlement agreement ‘speaks for itself’” and that the four corners of the agreement did not provide an accounting method. It concluded that the arbitrator exceeded the scope of her authority. As such, it granted plaintiff’s motion to vacate the arbitration award, declined to remand the case to the arbitrator, and closed the case. On appeal, the court agreed with defendant that the trial court erred by vacating the award on the basis that the arbitrator exceeded her powers by looking outside the four corners of the settlement agreement. The “arbitration agreement expressly provided that the arbitrator would draft a separate contract to detail the settlement agreement’s terms.” The trial court erred by engaging in contractual interpretation of the settlement agreement, and the arbitrator “did not exceed the scope of her authority because the scope of the parties’ arbitration agreement empowered [her] to create a separate contract, and the contract [she] created did not conflict with the parties’ settlement agreement.” The court rejected plaintiff’s argument that the trial court did not err by vacating the award “because the arbitrator exceeded her authority by issuing an award that was inconsistent with the settlement agreement in several respects.” It found that the “arbitrator did not exceed her authority by using synonyms for the word paid,” that the award could “be reconciled with the settlement agreement and mediation transcript” and was not “inconsistent with a payment exclusion in the settlement agreement.” The arbitrator’s backup documents provision was likewise not inconsistent with that agreement.

Sentencing; Scoring of OV 19; MCL 777.49(a); People v. Dickinson; A prisoner’s possession or attempted possession of a cell phone

Holding that a prisoner’s possession or attempted possession of a cell phone threatens the penal institution’s security and thus, that 25 points may be scored for OV 19 if a defendant is found guilty of such an offense, the court affirmed defendant’s sentence. He pled guilty to attempted possession of a cell phone by a prisoner in violation of MCL 800.283a and 750.92. He was sentenced to 11 to 30 months. He later unsuccessfully moved to correct an invalid sentence, arguing that OV 19 was improperly scored. The court concluded that MCL 777.49(a)’s plain language “requires assessment of 25 points where an offender’s ‘conduct threatened the security of a penal institution.’” Defendant pled guilty to “attempted possession of a cell phone while incarcerated in a correctional facility.” Prison staff discovered him with a cell phone in a bathroom and later found a cell phone charger within his area of control. The court noted that in Dickinson, it held that the assessment of 25 points for OV 19 was not limited “to offenders who smuggled weapons or other mechanical destructive devices into a prison.” The fact that the Legislature criminalized “cell phone possession indicates that prisoners shall not have cell phones within a penal institution because of the inherent dangers posed by the presence of and unmonitored use of a cell phone within the confines of a penal institution. It is axiomatic that a prisoner’s possession of contraband like a cell phone threatens the safety and security of the prison staff and prisoners because of the numerous ways in which a prisoner may use such a device for illicit purposes, with prison staff left without a means of intercepting such unmonitored communications to prevent violation of prison rules and the commission of serious crimes.” The court concluded that the trial court correctly relied on information in “the PSIR, a preponderance of the evidence in the record, and drew reasonable inferences from the facts that supported its assessment of 25 points for OV 19. [It] properly interpreted and applied MCL 777.49(a).” Defendant’s OV 19 score was warranted by his conduct and thus, he was not entitled to resentencing.

Whether the DataMaster logs were nontestimonial & admissible as business records under MRE 803(6); Confrontation Clause; U.S. Const. amend. VI; Crawford v. Washington; Williams v. Illinois; People v. Nunley; People v. Jambor; MI Admin Code R 325.2653(3); People v. Hardiman

Holding that the DataMaster logs were nontestimonial and admissible as business records under MRE 803(6), the court vacated the district court’s order denying the prosecution’s motion in limine and remanded. The logs, “which are generated through breath tests administered by police officers conducting alcohol-related investigations,” in this case “were created before defendant’s breathalyzer test to prove the accuracy of the DataMaster machine; they were not created for the purpose of prosecuting defendant specifically; thus, they did not ‘accus[e] a targeted individual of engaging in criminal conduct.’” Further, they “were also created as part of the Michigan State Police’s normal administrative function of assuring that the DataMaster machine produces accurate results.” Additionally, they “would have been checked for proper functioning even if defendant had not been tested with it.” Thus, the primary purpose of the Class IV operator’s “testing the DataMaster’s accuracy was to comply with administrative regulations,” and to “ensure its reliability for future tests—not to prosecute defendant specifically.” As such, the “logs were nontestimonial and the trial court erred by holding that they were testimonial.” Also, they are business records under MRE 803(6). The Michigan State Police keep the logs “‘in the course of a regularly conducted business activity’ and it is ‘the regular practice of that business activity to make the . . . record’ as required by the administrative DataMaster regulations.” Although they “are occasionally presented at trials, they are not prepared for the purpose of litigation, but rather, because the administrative regulations require the keeping of such a log.” Thus, they are admissible under MRE 803(6).

Whether defendant was related to the complainant (his adoptive sister) “by blood or affinity” to either the third or fourth degree; MCL 750.520b–MCL 750.520e; CSC III under MCL 750.520d(1)(d); The Michigan Adoption Code (MCL 710.21 et seq.); Jones v. Slick; MCL 710.60; In re Toth; Wilson v. King; Presumption of legitimacy under MCL 552.29; People v. Zajaczkowski; Dicta; People v. Borchard-Ruhland; Whether the Legislature intended to treat adoptive siblings different than biological siblings for purposes of the CSC statutes; People v. Armstrong; “Affinity”; Bliss v. Caille Bros. Co.; Ineffective assistance of counsel; Advising defendant that he could be convicted of CSC III even if the jury agreed that the sexual encounter was consensual

On remand from the Michigan Supreme Court, the court held that defendant and complainant (his adoptive sister) were effectively related by blood and so there was an adequate factual basis for his no-contest plea. Thus, it affirmed the trial court’s denial of his motion to withdraw his plea. Defendant and complainant were legally adopted out of the foster care system. When the offense “occurred in the family home, defendant was 25 years old and complainant was 17 years old.” The trial court accepted his plea on the basis that he was related to the complainant by affinity. The court held that “because adoptive siblings are effectively related by blood through the Adoption Code, there was a sufficient factual basis supporting defendant’s no-contest plea to CSC-III on the basis of relation by blood or affinity, and the trial court did not err by denying defendant’s motion to withdraw his plea.” As to the issue of affinity, the court noted that the trial court relied on the lay dictionary definition quoted in Armstrong, “i.e., that affinity extends to a relationship by marriage or by ties other than those of blood. While this single, broad definition may support extending the term affinity to relationships beyond those arising from marriage, Armstrong nonetheless concluded that stepsiblings were related by affinity ‘because they were family members related by marriage.’ . . . Thus, regardless of the various definitions, affinity has always been understood so as to exist via a marriage, and we are not aware of any published case holding to the contrary.” In this case, “the relationship of the two adopted children did not arise from a marriage and so it is not a relationship by affinity.” Finally, the court held that trial counsel’s advice (that he could be convicted “even if the jury agreed that the sexual encounter was consensual”) was not deficient and defendant’s ineffective assistance of counsel claim lacked merit given that he “could be convicted under MCL 750.520d(1)(d), which does not require the use of force or coercion.”

Applicability of MCL 768.27c to preliminary exams; “Evidentiary hearings”; People v. Yost; MCL 766.13; People v. Kubasiak; MCR 6.110(D)(2); Effect of the Legislature’s failure to include MCL 768.27c in MCL 766.11b(1)

On remand from the Michigan Supreme Court, the court held that MCL 768.27c applies to preliminary exams. Thus, it again reversed the circuit court’s decision to quash defendant’s bindover, and remanded for reinstatement of the first-degree home invasion and domestic violence charges against him. The complainant did not appear at the preliminary exam. The prosecution proceeded with the testimony of the officer who responded to the scene on the basis that it “was admissible under MCL 768.27c, the statutory hearsay exception for statements to law enforcement officers made by victims of domestic violence under circumstances that would indicate the statement’s trustworthiness.” While MCL 768.27c(6) provides that the statute applies to trials and evidentiary hearings, defendant argued that a preliminary exam is not an evidentiary hearing. The court disagreed, concluding that the preliminary exam “is a type of evidentiary hearing, and thus,” the statute applies at this stage of the proceedings. It noted that the purpose of a preliminary exam “is to admit evidence on each element of a crime and to establish probable cause to believe that the defendant committed that crime.” There did not appear to be any “logical rationale to apply the statute at trial and other types of evidentiary hearings, but not at a preliminary” exam. Defendant failed to show any reason why “‘evidentiary hearing’ should be read differently in this context,” and while the legislative history was not controlling or dispositive, it indicated that “the Legislature never intended for MCL 768.27c(6) to be read in the manner” he suggested. As to his reliance on MCR 6.110(D)(2), which distinguishes between evidentiary hearings and preliminary exams, the court did not read it as concluding that preliminary exams are “wholly distinct from evidentiary hearings.” More importantly, nothing in MCL 768.27c showed “that the Legislature sought to adopt any such distinction from MCR 6.110(D), a judicially adopted rule[.]” Finally, MCL 768.27c’s omission from MCL 766.11b(1) did not support defendant’s argument. MCL 768.27c is not listed in MCL 766.11b(1) because it “has nothing to do with the purpose of MCL 766.11b(1).”

Waiver of right against self-incrimination; Miranda v. Arizona; People v. Barritt; Moran v. Burbine; People v. Tierney; Invocation of the right to remain silent; Berghuis v. Thompkins; Michigan v. Mosley; Compliance with MCL 763.9; Instructing the jury as to unrecorded statements; MCL 763.8(2); Armed robbery; MCL 750.529; Principle that no error results from omission of an instruction if the charge as a whole covers the substance of the omitted instruction; People v. Messenger; Ineffective assistance of counsel; People v. Anderson; People v. Schrauben; Failure to argue during the Walker hearing that the prior invocation of the right to remain silent at the time of arrest was not scrupulously honored; Failure to preserve the issue; Failure to object to the jury instructions & to request an instruction pursuant to MCL 763.9

The court held that based on the totality of the circumstances, the trial court correctly determined that defendant waived his constitutional right against self-incrimination. Because there was insufficient evidence to establish that he invoked his rights under Miranda, the trial court did not commit plain error and deny him a fair trial. Under the circumstances, he could not establish that he was prejudiced by the failure to instruct the jury pursuant to MCL 763.9. Finally, he was not denied the effective assistance of counsel. Defendant was convicted of armed robbery and unlawful imprisonment. He argued that the trial court erred when it found that he waived his Miranda rights and voluntarily made his statements to Detective G. Video and transcription evidence showed that G “advised defendant of his Miranda rights before any discussion of his criminal conduct.” He acknowledged these rights by stating “[u]h-huh” in response to G’s question regarding “whether he understood what was read to him. Defendant further acknowledged during the Walker hearing that he was read Miranda rights on a previous unrelated occasion when questioned by police.” In addition, while the video evidence showed “defendant exhibiting fatigue, he nonetheless maintained eye contact, interacted with a diagram drawn by [G], and reflected on his participation in high school sports and his late cousin.” He also maintained on appeal that he “was under the influence of alcohol, marijuana, and pills at the time of the interview, but the record suggests otherwise. As the trial court correctly noted, defendant was not in a state of intoxication or injury that made him unable to decide to voluntarily waive his rights.” The recorded interview showed that he “was able to sit upright and give coherent responses to each question [G] asked throughout the 45-minute interview. Moreover, defendant was in custody for at least six hours before the interview began and was able to walk without assistance for the 80 feet between the holding area and the interview room.” The evidence did not suggest that he “was unaware of what was going on or that he was unable to make a voluntary, knowing, and intelligent waiver of his right to remain silent.” Affirmed.

Petition to vacate convictions under 28 USC § 2255 based on McDonnell v. United States; Griffin v. United States; Jury instructions on “official acts”; 18 USC § 201; United States v. Lee; United States v. Silver (2d Cir.); United States v. Skelos (2d Cir.); United States v. Fattah (3d Cir.); Woodward v. United States (1st Cir.); Jury instructions that do not accurately reflect the law; United States v. Geisen; Harmless error; Fair v. United States; Davis v. Ayala; O’Neal v. McAninch; Besser v. Walsh (2d Cir.); Cumulative error; United States v. Parker; United States v. Brown (8th Cir.); Davis v. United States

The court held that the district court erred by failing to properly instruct the jury on what constituted an “official act” under § 201, where it did not contain the clarification that “most phone calls and meetings” do not constitute such an act, pursuant to the Supreme Court’s decision in McDonnell. Petitioner-Dimora was convicted of various bribery-related crimes for actions while he was an Ohio county commissioner. He petitioned to vacate his convictions under § 2255, arguing that the district court’s jury instructions were improper under the Supreme Court’s decision in McDonnell, which held that “‘official acts’ are limited to ‘formal exercise[s] of governmental power.’” Dimora argued the district “court’s instructions misstated the law by allowing the jury to ‘convict [him] for conduct that was not unlawful.'” The court agreed. The instructions given to the jury about official acts did not contain the three clarifications McDonnell held “are needed to prevent a jury from convicting the defendant for lawful conduct.” First, the jury should be instructed to “identify a ‘question, matter, cause, suit, proceeding or controversy’ involving the formal exercise of governmental power.” Second, the jury must be instructed “that the pertinent ‘question, matter, cause, suit, proceeding or controversy’ must be something specific and focused that is 'pending' or ‘may by law be brought before any public official.’” Lastly, it must be instructed “that merely arranging a meeting or hosting an event to discuss a matter does not count as a decision or action on that matter.” The court concluded that the instructions given here fell short of these requirements and allowed the jury to infer that “official acts include all ‘actions generally expected of the public official.’ And, indeed, at closing, the government explicitly asked the jury to do so . . . .” The court noted that both the Second and Third Circuits have invalidated similar jury instructions. It then concluded that the district court erred in applying the principles of harmless error analysis, and remanded for proper application of the standard. It declined to increase the scope of the remand to include convictions for offenses that were excluded from review in the Certificate of Appealability. It also noted that not all of the counts before it required additional analysis on remand, and it left it to the district court to consider whether Dimora could raise a “cumulative error” argument. Vacated and remanded.

Action for a writ of mandamus compelling a city clerk to certify ballot initiative language to the county clerk; Warren City Council v. Buffa; The Michigan Election Law (MCL 168.1 et seq.); MCL 168.646a; Whether city charter provisions were preempted; Detroit City Council v. Detroit Mayor; MCL 117.36; Amendments to MCL 168.646a after Meridian Charter Twp. v. Ingham Cnty. Clerk

Holding that MCL 168.646a preempted the relevant city charter provisions, and that plaintiff was entitled to a writ of mandamus compelling defendant-city clerk to certify the ballot language at issue to the county clerk, the court reversed the circuit court and ordered defendant to immediately certify the language to the county clerk. Plaintiff’s ballot initiative seeks to enact an ordinance related to marijuana businesses and use. The issue on appeal concerned “two procedures for placing voter-initiated ballot proposals on the ballot, one provided by statute, and the other by the Port Huron City Charter.” The first question the court addressed was whether the charter provisions were preempted by the statute. It held that they were. It reviewed the 2015 amendments to the statute, which were in response to its decision in Meridian. The “Legislature amended MCL 168.646a(3) to state that the provisions of MCL 168.646a ‘apply to and control the filing deadlines for candidates for local office to be elected at the general November election and for all ballot questions of a political subdivision of this state at any regular election, primary election, or special election notwithstanding any provisions of law or charter to the contrary.’” Further, enacting section 1 of the public act stated that it was the Legislature’s intent “that MCL 168.646a(3) supersedes any and all conflicting provisions of law or charter prescribing the filing deadlines for candidates for local office to be elected at the general November election and for all ballot questions of a political subdivision of this state at any regular election, primary election, or special election.” It was apparent that as the charter provisions were applied here, they conflicted with the statute. By “strictly enforcing the city charter provisions, defendant has effectively moved the date for submission of petitions to a date earlier than that contemplated by MCL 168.646a(2). Defendant’s obligation is to certify the ballot language pursuant to MCL 168.646a(2), even if that would conflict with the terms of the city charter.” The court rejected her assertion that there was no conflict. It also concluded that, under Warren City Council, plaintiff was entitled to a writ of mandamus, and the circuit court abused its discretion in refusing to issue one.

Whether plaintiffs were “outside salespeople” exempt from the requirements of the Fair Labor Standards Act (FLSA); 29 USC § 213(a)(1); Douglas v. Argo-Tech Corp.; Martin v. Indiana MI Power Co.; Christopher v. SmithKline Beecham Corp.; 29 CFR § 541.500; Killion v. KeHE Distribs., LLC; Meza v. Intelligent Mexican Mktg., Inc. (5th Cir.); Clements v. Serco, Inc. (10th Cir.); Flood v. Just Energy Mktg. Corp. (2d Cir.); Whether plaintiffs were “obtaining orders or contracts for services”; Williams v. Duke Energy Int’l, Inc.; External indicia of salespeople; Jury instructions; United States v. Godofsky; Bridgeport Music, Inc. v. UMG Recordings, Inc.; Evidence of compensation

The court affirmed the district court’s denial of defendants’ (collectively Just Energy) motions for judgment as a matter of law and for directed verdict where the jury reasonably determined that plaintiffs were not “making sales” when they were going door-to-door seeking customers for Just Energy’s electricity and natural gas products given that Just Energy retained discretion to approve or deny the customers’ applications. Thus, plaintiffs were not exempt from FLSA’s protections. They challenged Just Energy’s classification of them as “outside salesman,” a category exempt from FLSA protection. The jury returned a verdict for plaintiffs. Just Energy argued that the Christopher plaintiffs were found to be outside sales people under similar circumstances. But the court disagreed, noting that Christopher dealt with the pharmaceutical industry, and that other circuits have concluded that the Christopher holding “does not necessarily apply to other industries.” In that case, unlike here, direct sales were prohibited. The court held that the jury could have reasonably considered Just Energy’s retention of discretion over the sales’ completion as a factor when determining whether plaintiffs were “making sales.” The court declined to follow the Second Circuit’s holding in Flood because it found the circumstances varied. There, the solicitor “was ‘the last person to sell a customer,’ and no one else made sales after him.” The court held that the jury reasonably found that plaintiffs were not “making sales,” and thus, were not exempt outside salespeople. It also held that plaintiffs were not “‘obtaining orders or contracts for services[,]’” but were dealing in “commodities.” Further, it rejected Just Energy’s challenge to the jury instructions and its argument that the “‘authority to bind’ should not be a consideration when applying the outside sales exemption.” It found that, read as a whole, the instructions were “an accurate statement of the outside sales exemption as instructed by Christopher.” As to the admission of evidence of plaintiffs’ compensation, the court concluded that they had to show Just Energy failed to pay minimum wages and overtime pay, and “Just Energy did not stipulate that Plaintiffs actually earned less than minimum wage in commissions, or that they were entitled to overtime pay at all. Compensation information was therefore necessary for Plaintiffs to establish that they had minimum wage and overtime claims to begin with.” The evidence was also relevant “to other parts of the outside sales exemption analysis.”

Dispute over a divorce settlement; Binding arbitration under the Domestic Relations Arbitration Act (MCL 600.5070 et seq.); Eppel v. Eppel; A reviewing court’s authority to vacate an arbitration award; MCL 600.5081; Ann Arbor v. AFSCME; Police Officers Ass’n of MI v. Manistee Cnty.; Whether an arbitrator exceeded his or her powers; Washington v. Washington; Contract interpretation; Zurich Ins. Co. v. CCR & Co.; Brucker v. McKinlay Transp., Inc.; Davis v. LaFontaine Motors, Inc.; Priority Health v. Commissioner Office of Fin. & Ins. Servs.

Holding that the arbitrator did not exceed the scope of her authority and the trial court erroneously ruled on the merits of the parties’ settlement agreement, the court reversed the trial court’s decision to vacate the arbitration award and remanded for it to confirm the award. The parties reached a divorce settlement through mediation. After a consent judgment was entered, they entered into arbitration. The arbitrator issued an award applying an accrual method of accounting, which provided defendant-ex-wife “with property payments based on when funds were earned, not when funds were paid.” The arbitrator also detailed the documentation plaintiff-ex-husband was to provide defendant regarding accounting. Plaintiff moved to vacate the award, asserting “that the arbitrator issued an award that was inconsistent with the agreements.” The trial court agreed, finding “the settlement agreement ‘speaks for itself’” and that the four corners of the agreement did not provide an accounting method. It concluded that the arbitrator exceeded the scope of her authority. As such, it granted plaintiff’s motion to vacate the arbitration award, declined to remand the case to the arbitrator, and closed the case. On appeal, the court agreed with defendant that the trial court erred by vacating the award on the basis that the arbitrator exceeded her powers by looking outside the four corners of the settlement agreement. The “arbitration agreement expressly provided that the arbitrator would draft a separate contract to detail the settlement agreement’s terms.” The trial court erred by engaging in contractual interpretation of the settlement agreement, and the arbitrator “did not exceed the scope of her authority because the scope of the parties’ arbitration agreement empowered [her] to create a separate contract, and the contract [she] created did not conflict with the parties’ settlement agreement.” The court rejected plaintiff’s argument that the trial court did not err by vacating the award “because the arbitrator exceeded her authority by issuing an award that was inconsistent with the settlement agreement in several respects.” It found that the “arbitrator did not exceed her authority by using synonyms for the word paid,” that the award could “be reconciled with the settlement agreement and mediation transcript” and was not “inconsistent with a payment exclusion in the settlement agreement.” The arbitrator’s backup documents provision was likewise not inconsistent with that agreement.

“Gross negligence”; MCL 691.1407(8)(a); Chelsea Inv. Group, LLC v. Chelsea; Maiden v. Rozwood; Tarlea v. Crabtree; Briggs v. Oakland Cnty.; Immunity under the Governmental Tort Liability Act (MCL 691.1401 et seq.); MCL 691.1407(1) & (2); Love v. Detroit; Odom v. Wayne Cnty.; Wesche v. Mecosta Cnty. Rd. Comm’n; Failure to repair or maintain a public building; Renny v. Department of Transp.; Wade v. Department of Corrs.; The public building exception to governmental immunity; MCL 691.1406; Johnson v. Detroit; “Fixture”; Fane v. Detroit Library Comm’n; Carmack v. Macomb Cnty. Cmty. Coll.; Velmer v. Baraga Area Schs.; Tellin v. Forsyth Twp.

The court held that the trial court erred by denying defendants-school and individuals (A and S) summary disposition of plaintiffs’ negligence claims, and by granting partial summary disposition for plaintiffs. Plaintiffs sued defendants after their daughter died from injuries she sustained when a panel in the school gym fell on her. The trial court found the panels were a fixture of the school, but that whether the school failed to protect the public from their placement in the gym within a reasonable amount of time was a question of fact. On appeal, the court first found that the trial court erred by denying the individual defendants’ motion for summary disposition because reasonable minds could not differ as to whether their conduct amounted to gross negligence. “[R]easonable minds might differ as to whether [A and S] were negligent in leaving the unattended panels leaning against the gym wall for a period of 30 minutes or less, but they could not differ as to whether their conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.” Further, because the panels “were only placed in the gym the morning of the accident, and because [S] played no role in leaning the panels against the gym wall, reasonable minds could not differ as to whether his conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury would result.” The court next found that although the trial court did not err by finding that “the stage cover constituted a fixture and, therefore, part ‘of a public building . . . ,’” it did err by denying the school’s motion for summary disposition because “leaning the stage cover panels against the gym wall did not constitute a failure to repair or maintain a public building.” It found there was “no evidence to suggest that the school failed to maintain or repair the stage cover. Rather, the ‘defective condition’” was not the lack of a stage cover, but instead “the leaning of unguarded and unsecured panels on the wall as part of the installation process.” It further noted that, even if it “did not conclude that plaintiff’s claim was essentially a design defect claim,” it would still reverse “because the panels themselves were not dangerous or defective.” Reversed and remanded.

Action for a writ of mandamus compelling a city clerk to certify ballot initiative language to the county clerk; Warren City Council v. Buffa; The Michigan Election Law (MCL 168.1 et seq.); MCL 168.646a; Whether city charter provisions were preempted; Detroit City Council v. Detroit Mayor; MCL 117.36; Amendments to MCL 168.646a after Meridian Charter Twp. v. Ingham Cnty. Clerk

Holding that MCL 168.646a preempted the relevant city charter provisions, and that plaintiff was entitled to a writ of mandamus compelling defendant-city clerk to certify the ballot language at issue to the county clerk, the court reversed the circuit court and ordered defendant to immediately certify the language to the county clerk. Plaintiff’s ballot initiative seeks to enact an ordinance related to marijuana businesses and use. The issue on appeal concerned “two procedures for placing voter-initiated ballot proposals on the ballot, one provided by statute, and the other by the Port Huron City Charter.” The first question the court addressed was whether the charter provisions were preempted by the statute. It held that they were. It reviewed the 2015 amendments to the statute, which were in response to its decision in Meridian. The “Legislature amended MCL 168.646a(3) to state that the provisions of MCL 168.646a ‘apply to and control the filing deadlines for candidates for local office to be elected at the general November election and for all ballot questions of a political subdivision of this state at any regular election, primary election, or special election notwithstanding any provisions of law or charter to the contrary.’” Further, enacting section 1 of the public act stated that it was the Legislature’s intent “that MCL 168.646a(3) supersedes any and all conflicting provisions of law or charter prescribing the filing deadlines for candidates for local office to be elected at the general November election and for all ballot questions of a political subdivision of this state at any regular election, primary election, or special election.” It was apparent that as the charter provisions were applied here, they conflicted with the statute. By “strictly enforcing the city charter provisions, defendant has effectively moved the date for submission of petitions to a date earlier than that contemplated by MCL 168.646a(2). Defendant’s obligation is to certify the ballot language pursuant to MCL 168.646a(2), even if that would conflict with the terms of the city charter.” The court rejected her assertion that there was no conflict. It also concluded that, under Warren City Council, plaintiff was entitled to a writ of mandamus, and the circuit court abused its discretion in refusing to issue one.

Auto negligence; Negligent operation of a vehicle under the owner’s liability statute; MCL 257.401(1); North v. Kolomyjec; The long-term lessor exemption; MCL 257.401(2); MCL 257.401a; “Owner”; MCL 257.37; “Engaged in the business of leasing”; Ball v. Chrysler Corp.; Application of the “incidental to service” test set forth in Catalina Mktg. Sales Corp. v. Department of Treasury; Vicarious liability; Rogers v. JB Hunt Transp., Inc.; Montgomery v. State Farm Mut. Auto. Ins. Co. (Unpub.); Agency; Logan v. Manpower of Lansing, Inc.

The court held that the trial court erred by denying defendant-car company’s motion for summary disposition because it was exempt from owner’s liability for plaintiffs’ wrongful death and personal injury claims, and not vicariously liable for the negligence of the driver (S). Plaintiffs sued defendant for the death of a passenger and the serious injuries of two other passengers arising out of a single-vehicle accident in which S lost control of the vehicle and struck a tree. Plaintiffs alleged defendant was liable for S’s negligent operation of the vehicle under Michigan’s owner’s liability statute, and vicariously liable as the employer of the vehicle’s lessee (the mother of one of the injured passengers). The trial court found that defendant was not a lessor within the meaning of the lessor exemption in the owner’s liability statute, and that plaintiffs presented a viable theory of vicarious liability. On appeal, the court agreed with defendant that the trial court erred by concluding it could be held liable as a statutory owner because as a long-term lessor of over 15,000 vehicles it was exempt from owner’s liability for plaintiffs’ claims. “According to the plain terms of the statutes, [defendant] was ‘engaged in the business of leasing motor vehicles’ as contemplated by MCL 257.401(2) and MCL 257.401a and” was exempt from liability under the statute. In addition, the Catalina factors did not apply here, “and the trial court erred by implicitly applying those factors.” The court also agreed with defendant that the trial court erred by finding it could be held vicariously liable for a nonemployee’s negligent operation of the leased vehicle. S, “who was driving the vehicle at the time of this accident, was not the lessee of the vehicle, he was not [an] employee conceivably acting within the scope of such employment when the accident occurred, the lease did not direct the lessee-employee to primarily use the car for [defendant’s] testing and evaluation purposes, [S] was not driving the vehicle for the purpose of evaluating it at the behest of [defendant], and [defendant] derived no benefit from [S] driving the leased vehicle at the time of the accident. Vicarious liability simply has no application under these circumstances.” Reversed and remanded for entry of summary disposition for defendant.

“Gross negligence”; MCL 691.1407(8)(a); Chelsea Inv. Group, LLC v. Chelsea; Maiden v. Rozwood; Tarlea v. Crabtree; Briggs v. Oakland Cnty.; Immunity under the Governmental Tort Liability Act (MCL 691.1401 et seq.); MCL 691.1407(1) & (2); Love v. Detroit; Odom v. Wayne Cnty.; Wesche v. Mecosta Cnty. Rd. Comm’n; Failure to repair or maintain a public building; Renny v. Department of Transp.; Wade v. Department of Corrs.; The public building exception to governmental immunity; MCL 691.1406; Johnson v. Detroit; “Fixture”; Fane v. Detroit Library Comm’n; Carmack v. Macomb Cnty. Cmty. Coll.; Velmer v. Baraga Area Schs.; Tellin v. Forsyth Twp.

The court held that the trial court erred by denying defendants-school and individuals (A and S) summary disposition of plaintiffs’ negligence claims, and by granting partial summary disposition for plaintiffs. Plaintiffs sued defendants after their daughter died from injuries she sustained when a panel in the school gym fell on her. The trial court found the panels were a fixture of the school, but that whether the school failed to protect the public from their placement in the gym within a reasonable amount of time was a question of fact. On appeal, the court first found that the trial court erred by denying the individual defendants’ motion for summary disposition because reasonable minds could not differ as to whether their conduct amounted to gross negligence. “[R]easonable minds might differ as to whether [A and S] were negligent in leaving the unattended panels leaning against the gym wall for a period of 30 minutes or less, but they could not differ as to whether their conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.” Further, because the panels “were only placed in the gym the morning of the accident, and because [S] played no role in leaning the panels against the gym wall, reasonable minds could not differ as to whether his conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury would result.” The court next found that although the trial court did not err by finding that “the stage cover constituted a fixture and, therefore, part ‘of a public building . . . ,’” it did err by denying the school’s motion for summary disposition because “leaning the stage cover panels against the gym wall did not constitute a failure to repair or maintain a public building.” It found there was “no evidence to suggest that the school failed to maintain or repair the stage cover. Rather, the ‘defective condition’” was not the lack of a stage cover, but instead “the leaning of unguarded and unsecured panels on the wall as part of the installation process.” It further noted that, even if it “did not conclude that plaintiff’s claim was essentially a design defect claim,” it would still reverse “because the panels themselves were not dangerous or defective.” Reversed and remanded.