Manufacturing a controlled substance (marijuana); MCL 333.7401(2)(d)(iii); “Manufacture”; MCL 333.7106(3)(a); “Marijuana”; MCL 333.7106(4); The personal-use exemption; People v. Baham; People v. Hunter; “Preparation” & “compounding”; Stone v. State (AR); Thompson v. Western States Med. Ctr.; Constitutionality of the statues at issue; Vagueness; People v. Newton; People v. Sands; Fair or proper notice; People v. Dillon

The court held that the circuit court did not err by denying defendant’s motions to dismiss the charge against him, and that the affirmative defense of personal-use was unavailable to him. It also held that the statutes involved were not unconstitutionally vague. The district court bound him over for trial on one count of manufacturing a controlled substance (marijuana) after an explosion leveled his garage. The circuit court denied his motions to dismiss the charge, or in the alternative to raise a personal-use affirmative defense at trial. On appeal, the court rejected his argument that the charge was legally unsupportable and must be dismissed. It noted that even a cursory review of his expert’s (G) testimony “supports that a jury could conclude that open blasting to distill concentrated THC from raw plant material involves a ‘significantly higher degree of activity’ than rolling a marijuana cigarette or baking brownies.” G explained that “butane is used to dissolve the plant material to extract the plant’s resin. Once the butane evaporates away from the resin, the maker adds ethanol to cool the resin, causing the fat molecules to congeal so they can be separated out. The remaining resin must be heated to convert THCA to THC, leaving the manufacturer with a concentrated, pure product.” The evidence precluded dismissal of the charge. The court also rejected his claim that the statutes involved are unconstitutionally vague. It found the definition of “marijuana” put him “on clear notice that the plant material he possessed and the resin he extracted were ‘marijuana,’ as was the THCA and THC” he tried to derive from the resin. Moreover, the statute “comprehensively defines ‘manufacture.’” Finally, the court rejected his contention that, absent dismissal of the charge, he was nevertheless entitled to raise an affirmative defense under the personal-use exception. “The ‘open blasting’ process of transforming raw marijuana into useable resin involves more than just ‘preparing’ the marijuana for personal use.” While defendant was “correct that in one sense he was engaged in ‘preparing’ the marijuana for his own use, he was doing so by processing it in several different ways to arrive at an end product.” It noted that, were it to hold that his “manufacturing activity was merely ‘preparation’ because that word, too, fits his actions, the ‘preparation’ aspect of the personal-use exception would swallow the prohibited conduct described in the rule.” Affirmed.

Breach of agreements for payments in lieu of taxes (PILOT); The Michigan State Housing Development Authority Act (the MHSDA Act) (MCL 125.1401 et seq.); Interpretation of the plaintiff-city’s PILOT Ordinance & MCL 125.1415a; “Low income persons & families”; “Eligible”; Statutory & ordinance interpretation; Sau-Tuk Indus., Inc. v. Allegan Cnty.; Applicability of the in pari materia doctrine; In re Implementing § 6w of 2016 PA 3341 for Cloverland Elec. Coop.; Summer v. Southfield Bd. of Educ.; Voorhies v. Faust; Tyler v. Livonia Pub. Sch.; Hughes v. Almena Twp.; Enforcing plain statutory language as written; Sun Valley Foods Co. v. Ward; Preventing absurd results, injustice, or prejudice to the public interest; McAuley v. General Motors Corp.; Use of dictionaries to define terms undefined by statute; Anzaldua v. Neogen Corp.; Preemption; McNeil v. Charlevoix Cnty.; Ter Beek v. City of Wyoming; Respectful consideration of the interpretation of a statute by those charged with executing it; In re Rovas Against SBC MI; Treatment of municipal resolutions; Rollingwood Homeowners Corp. v. City of Flint

The court held that the trial court correctly ruled that MCL 125.1415a required plaintiff-city to calculate the annual PILOT charges on defendants’ low-income housing projects by distinguishing portions occupied by low-income persons from portions occupied by others. The trial court’s decision comported with and enforced the plain language of the statute, and enforced the city’s PILOT Ordinance to the extent it did not conflict with state law. It also correctly determined that defendants breached the parties’ contracts and were liable for the difference between what they paid and what the contracts required them to pay the city. Thus, the court affirmed summary disposition for the city. It found that the trial court was correct in ruling that the city “had a statutory obligation to charge defendants fees based upon plaintiff’s PILOT Ordinance in the amount of 4% of the annual shelter rents for the rents collected from low-income persons and families who occupied the housing projects, exclusive of any charges for gas, electricity, heat, or other utilities furnished to the occupants, and charge defendants pursuant to MCL 125.1415a(6) in amounts equal to the ad valorem taxes for the portions of the housing projects occupied by other than low-income persons or families.” The record showed that it considered MCL 125.1415a’s plain language “in the context of the purpose of the MSHDA Act, and read the section’s subparts in harmony with one another. The trial court properly determined that the statute did not permit the imposition of a uniform PILOT charge based on the annual shelter rent collected for the total number of units in the project. Further, the trial court correctly interpreted the statute as requiring differentiation of PILOT charges for the rental units occupied by low-income persons and families from those occupied by” other persons who paid the market rate. It “did not err by interpreting MCL 125.1415a(1), (2), (6), and (7) together and in harmony.” The court concluded that the trial court correctly “declined to enforce the PILOT Ordinance as written to charge a uniform amount for all units” in the projects because the Ordinance did not “fully comply with and conflicted with MCL 125.1415a(6). Further, the trial court correctly treated the resolutions as evidence in conjunction with other evidence of the terms of the parties’ contractual agreements.”

Motion for disqualification of the trial court; MCR 2.003(C); Presumption a trial judge is unbiased; Mitchell v. Mitchell; Judicial rulings as a basis for the motion; Armstrong v. Ypsilanti Charter Twp.; Remarks made during trial; In re MKK; Untimely motion; MCR 2.003(D)(1)(a); Attempting to force a judge’s disqualification by suing the judge; Grievance Adm’r v. Fieger; In re Disqualification of Saffold (OH); Olsen v. Wainwright (5th Cir.); MI Code of Judicial Conduct, Canon 3(A)(4); Disclosure of alleged ex parte communications; Personal protection order (PPO) enjoining defamatory speech on social media; Whether the nondomestic PPO statute (MCL 600.2950a) bars or provides a remedy for defamation; MCL 750.411s; Buchanan v. Crisler; TM v. MZ (On Remand); McFadden v. Detroit Bar Ass’n; “Post a message”; MCL 750.411s(8)(i); Principle that MCL 750.411s “does not prohibit constitutionally protected speech or activity”; MCL 750.411s(6)

The court held that the trial court and chief judge did not commit reversible error as to respondent-KL’s motion for disclosure of alleged ex parte communications between the trial court and its counsel in KL’s federal lawsuit against it, or to disqualify the trial court. But while 600.2911 (providing money damages for defamation) does not preclude enjoining defamatory communications that meet the elements of MCL 750.411s, the language of the amended PPO was too broad and inconsistent with the law. Thus, the court affirmed in part, reversed in part, and remanded for modification of the amended PPO as set forth in the opinion. KL and his former girlfriend have a child, O. Petitioner-TT is O’s maternal great aunt. The amended PPO prohibited KL “from posting defamatory statements about [p]etitioner on social media and/or from publishing such statements elsewhere.” KL failed to address on appeal one of the reasons the trial court denied the motion for disqualification – that it was untimely. In addition, the court found “no indication that the trial court acted in a biased or less than impartial manner.” It did not prevent him from presenting his side. While it did refuse to allow him to withdraw his motion to terminate the PPO, a trial court “has the inherent authority to exercise its discretion in controlling its docket.” Considering that he couched his “notice of withdrawal in terms that reserved a right to refile the motion to terminate the PPO in the future, which was not a ‘right’ that” he could dictate to the trial court, that the hearing was already in progress, and there had been several adjournments, the trial court’s decision did not show actual bias against KL. As to the alleged violation of Canon 3(A)(4), the court concluded that accepting his argument “would effectively vitiate the principle that a person cannot force a judge’s disqualification merely by suing that judge.” It also noted that there was no evidence of any ex parte communications. As to the PPO, “the trial court did not err by concluding that respondent made defamatory statements concerning” TT on Facebook. Further, applying the “modern trend,” the court held that when a respondent argues a “PPO would prohibit constitutionally protected speech and the petitioner counters that the posted messages are defamatory, the petitioner need not show economic injury.” But also consistent with the modern trend, “the PPO needs to be specifically limited to the adjudicated speech.”

Other acts evidence admitted under MCL 768.27a; People v. Watkins; MRE 403; Use of a forensic interviewer’s testimony; People v. Thorpe

In an order in lieu of granting leave to appeal, the court vacated Parts II and III-F of the Court of Appeals judgment (see e-Journal # 70453 in the 5/24/19 edition) and remanded the case to the Court of Appeals for reconsideration of issues relating to other acts evidence and the prosecution’s use of a forensic interviewer’s testimony. It directed the Court of Appeals to determine on remand whether (1) the admission of other acts evidence under MCL 768.27a and Watkins may have confused jurors about “the nature of the charged acts, and if so, whether the potential for confusion of the issues substantially outweighed the evidence’s probative value” and (2) the prosecution’s use of the forensic interviewer’s testimony entitled defendant to a new trial under Thorpe. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.

Manufacturing a controlled substance (marijuana); MCL 333.7401(2)(d)(iii); “Manufacture”; MCL 333.7106(3)(a); “Marijuana”; MCL 333.7106(4); The personal-use exemption; People v. Baham; People v. Hunter; “Preparation” & “compounding”; Stone v. State (AR); Thompson v. Western States Med. Ctr.; Constitutionality of the statues at issue; Vagueness; People v. Newton; People v. Sands; Fair or proper notice; People v. Dillon

The court held that the circuit court did not err by denying defendant’s motions to dismiss the charge against him, and that the affirmative defense of personal-use was unavailable to him. It also held that the statutes involved were not unconstitutionally vague. The district court bound him over for trial on one count of manufacturing a controlled substance (marijuana) after an explosion leveled his garage. The circuit court denied his motions to dismiss the charge, or in the alternative to raise a personal-use affirmative defense at trial. On appeal, the court rejected his argument that the charge was legally unsupportable and must be dismissed. It noted that even a cursory review of his expert’s (G) testimony “supports that a jury could conclude that open blasting to distill concentrated THC from raw plant material involves a ‘significantly higher degree of activity’ than rolling a marijuana cigarette or baking brownies.” G explained that “butane is used to dissolve the plant material to extract the plant’s resin. Once the butane evaporates away from the resin, the maker adds ethanol to cool the resin, causing the fat molecules to congeal so they can be separated out. The remaining resin must be heated to convert THCA to THC, leaving the manufacturer with a concentrated, pure product.” The evidence precluded dismissal of the charge. The court also rejected his claim that the statutes involved are unconstitutionally vague. It found the definition of “marijuana” put him “on clear notice that the plant material he possessed and the resin he extracted were ‘marijuana,’ as was the THCA and THC” he tried to derive from the resin. Moreover, the statute “comprehensively defines ‘manufacture.’” Finally, the court rejected his contention that, absent dismissal of the charge, he was nevertheless entitled to raise an affirmative defense under the personal-use exception. “The ‘open blasting’ process of transforming raw marijuana into useable resin involves more than just ‘preparing’ the marijuana for personal use.” While defendant was “correct that in one sense he was engaged in ‘preparing’ the marijuana for his own use, he was doing so by processing it in several different ways to arrive at an end product.” It noted that, were it to hold that his “manufacturing activity was merely ‘preparation’ because that word, too, fits his actions, the ‘preparation’ aspect of the personal-use exception would swallow the prohibited conduct described in the rule.” Affirmed.

Sentencing; Whether defendant was entitled to resentencing; People v. Francisco

On reconsideration, the court held that defendant was not entitled to resentencing. He was convicted of CSC I after he refused to pay the victim, a prostitute with whom he had arranged a meeting, held a sharp object to her throat, and forced her to engage in oral and vaginal sex. The trial court granted his motion to rescore OV 11 at 0 points, but denied his motion for resentencing. It corrected his original sentencing information report and the recommended minimum guidelines range was lowered to 42 to 70 months. Its order stated that resentencing was not required because defendant’s original sentence of 48 to 120 months was within the recalculated recommended minimum guidelines range. On appeal, the court rejected his argument that he was entitled to resentencing “because he was sentenced on the basis of inaccurate information and an inaccurate guidelines range.” It distinguished Francisco and found resentencing was not required. “We know the trial court would impose the same sentence for defendant under the now accurately scored guidelines range.” Its order stated that resentencing was not required because his “original sentence of 48 to 120 months of imprisonment is within the recalculated recommended minimum guidelines range. The trial court had the opportunity to resentence defendant and it expressly declined to do so.” After rescoring OV 11 and recalculating the guidelines range, it decided to maintain his original sentence. As such, its “explanation, its familiarity with this matter, particularly in light of the procedural posture and its ultimate disposition of the case, demonstrates the trial court’s intent to maintain the same sentence, regardless of the prior scoring error.” As a result, “‘[r]esentencing is . . . not required [because] the trial court has clearly indicated that it would have imposed the same sentence regardless of the scoring error and the sentence falls within the appropriate guidelines range.’” Affirmed.

Suppression of DataMaster test results; Sanctions for a public body’s willful & intentional failure to comply with the Freedom of Information Act (FOIA) (MCL 15.231 et seq.); MCL 15.240b; People v. Anstey; Whether the Michigan State Police’s (MSP) failure to preserve the booking room video after defendant made a timely FOIA request constituted a violation of his due process rights; People v. Dickinson; Arizona v. Youngblood; People v. Johnson; “Bad faith”; Commercial Union Ins. Co. v. Liberty Mut. Ins. Co.

Holding that the circuit court erred by affirming the district court’s suppression of evidence and dismissal of defendant’s OWI charge, the court reversed and remanded. He was charged with OWI, but the district court granted his motion to suppress his DataMaster test results and dismissed the charge. The circuit court ultimately agreed and affirmed. On appeal, the court agreed with the prosecution that “suppression of the DataMaster test results was not an appropriate remedy for a violation of FOIA because MCL 15.240b does not expressly provide for suppression of evidence as a remedy for violation of the statute.” It noted that while “Anstey permits the possibility that a FOIA violation may result in suppression of evidence if that violation causes a constitutional violation, suppression is not appropriate just because FOIA was violated.” It also agreed with the prosecution that the district court incorrectly determined that the MSP acted in bad faith when it failed to preserve the booking room video. “Although the evidence could allow a finder of fact to infer incompetence on the part of the official actors in this case, there is no evidence of official animus on the part of the MSP post or” its FOIA Unit. “Problems undoubtedly existed, but negligence such as that shown by the record here does not create a due-process violation, and defendant has failed in meeting his burden to prove bad faith.”

Jury instructions; Waiver; People v. Kowalski; People v. Miller; Prejudice; People v. Carines; Sufficiency of the evidence; People v. Unger; AWIM; People v. Haynie; Identity; People v. Yost; People v. Nelson; Inferring intent; People v. Brown; People v. Everett; People v. Ackah Essien; Ineffective assistance of counsel; People v. Randolph; Trial strategy; People v. LeBlanc; People v. Cooper; Failure to raise a futile objection; People v. Ericksen; Prejudice; People v. Fyda; Presumption that jurors follow their instructions

The court held that defendant was not prejudiced by the jury instructions and was not denied the effective assistance of counsel, and that the evidence was sufficient to prove his identity as the shooter and his intent to kill to support his AWIM conviction. He was also convicted of carrying a weapon with unlawful intent, FIP, and three counts of felony-firearm. The trial court sentenced him as a third-offense habitual offender to concurrent prison terms of 10 years and 6 months to 17 years and 6 months for AWIM, 2 to 10 years for carrying a weapon with unlawful intent and for FIP, to be served subsequent to concurrent 2-year terms for felony-firearm, with 17 days jail credit. On appeal, the court rejected his argument that the trial court erred by repeating the jury instruction on the elements of felony-firearm in connection with the jury instructions for both AWIM and AWIGBH, finding he waived this claim and, in any event, could not show he was prejudiced by any error. It also rejected his claim that the evidence was insufficient to support his AWIM conviction, finding the evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was the shooter, and that he intended to kill the victim. Finally, the court rejected his contention that he was denied the effective assistance of counsel, holding “defense counsel’s decision to refrain from requesting a mistrial or a curative instruction did not render his performance objectively deficient.” And even if defense counsel’s conduct had “fallen below an objective standard of reasonableness, defendant” failed to show that this conduct prejudiced him. Affirmed.

Admission of National Precursor Log Exchange (NPLEx) records; Right of confrontation; People v. Walker (On Remand); Whether the records were testimonial statements; People v. Clark; Williams v. Illinois; Case law ruling that a document prepared by a non-testifying expert violated the Confrontation Clause; Bullcoming v. New Mexico; Melendez-Diaz v. Massachusetts; People v. Fackelman; Business records hearsay exception; MRE 803(6); United States v. Collins; Sufficiency of the evidence for an assault with a dangerous weapon conviction; People v. Bosca; “Assault”; People v. Meissner; Lack of actual touching; People v. Carlson; Extraneous influence on the jury; People v. Budzyn; Ineffective assistance of counsel; People v. Trakhtenberg; Failure to advance a meritless position; People v. Ericksen; Jury instruction that witnesses (including police officers) cannot lie while testifying; Viewing instructions as a whole; People v. Hartuniewicz

The court held that the trial court did not abuse its discretion or violate defendant’s right of confrontation by admitting NPLEx records, and that there was sufficient evidence to support his assault with a dangerous weapon conviction. In addition, it found no evidence that the jury was exposed to an extraneous influence in the form of information about his incarceration, that “the trial court did not misinform the jury,” and that its instructions adequately protected his rights. His ineffective assistance of counsel claim also failed. He was convicted of manufacturing meth, operating or maintaining a meth lab, tampering with evidence, obtaining pseudoephedrine to make meth, assault with a dangerous weapon, and resisting arrest. In support of his claim “that the NPLEx records were inadmissible because they were testimonial statements[,]” defendant relied on Bullcoming, Melendez-Diaz, and Fackelman. But the reports at issue in those cases “were each generated after a defendant was charged with a crime and pursuant to a police investigation or a request by lawyers. By contrast, the data compilation and reporting procedures” a police witness (D) described here “are required for every purchase of pseudoephedrine products within the state and regardless of whether the log is ever used for litigation. Unlike the reports at issue in Bullcoming, Melendez-Diaz, and Fackelman, the NPLEx purchase logs responded to state mandates, were being kept before defendant was suspected and accused of the instant crimes, and recorded any purchase of pseudoephedrine, not just those made by defendant. The possibility that the NPLEx records could be used as evidence against a defendant in criminal prosecution does not mean that they were specifically or primarily prepared for such use.” Thus, they were not testimonial and there was no Confrontation Clause violation. To the extent defendant argued D “was not a proper witness to introduce the records because he did not create them, MRE 803(6) does not require the witness introducing the records to have created them, only that the records themselves were made by, or with information from, a person with knowledge.” As to his assault conviction, he admitted “he commanded his dog to attack the officers” and D testified “he was afraid the dog was going to try and bite them.” It was legally irrelevant that the dog did not make contact. Affirmed.

Search & seizure; U.S. Const. amend. IV; Vernonia Sch. Dist. 47J v. Acton; Motion to suppress; United States v. Davis; Warrantless cell phone search; Riley v. California; United States v. Lichtenberger; Probationers’ privacy interest; United States v. Herndon; Griffin v. Wisconsin; United States v. Knights; Whether the statute or regulation under which the probation officer conducted the search satisfied the Fourth Amendment’s reasonableness requirement; United States v. Loney; United States v. Goliday (Unpub. 6th Cir.); Whether the probation officer had “reasonable suspicion” to open & view the material on the cell phone; United States v. Payne; United States v. Cortez; United States v. Lyons; United States v. Townsend; Nykoriak v. Wileczek (Unpub. 6th Cir.); United States v. Taylor (Unpub. 6th Cir.); United States v. Touset (11th Cir.); United States v. Stepp; Kentucky v. King; Heien v. United States; United States v. Lara (9th Cir.); United States v. Collier (8th Cir.); United States v. Hathorn (5th Cir.); Applicability of the exclusionary rule; Herring v. United States; United States v. McClain

The court reversed the district court’s denial of defendant-Fletcher’s motion to suppress evidence of child pornography seized during a probation officer’s search of his cell phone where the officer did not have reasonable suspicion to search the phone and Fletcher’s probation agreement did not authorize the search. Under Riley, a warrant is generally necessary to search a cell phone, unless certain “exigent circumstances” exist. The dispute here was whether the probation officer had a “reasonable suspicion” to open and view the material on the cell phone. Fletcher was on probation after being convicted of importuning a minor. After noticing that Fletcher had two cell phones, his probation officer became suspicious and decided to search them. Fletcher’s explanations about the two phones and his nervous protestations regarding the search also raised the probation officer’s suspicions. After finding one pornographic picture, the police were called, a search warrant was issued, and evidence obtained. The court noted that reasonable suspicion “requires that the Government show ‘a particularized and objective basis for suspecting the particular person . . . of criminal activity.’ . . . It ‘requires more than a mere hunch.’” The court held that “[p]ossession of two cell phones, alone, is not a sufficient basis to suspect criminal activity." In Touset, the Eleventh Circuit considered “multiple other indicia in addition to possession of multiple phones when finding reasonable suspicion." The court concluded that there could be many legitimate reasons for having multiple cell phones, and it found it significant that Fletcher’s prior conviction had not been for child pornography and had not involved a cell phone. Also, the terms of Fletcher’s probation did not permit the search of his cell phone in the absence of reasonable suspicion. The court held that neither the framework in Griffin nor the framework in Knights supported a finding of reasonable suspicion here. It noted that seizing the cell phone was enough to preserve its contents. Finally, the court held that the exclusionary rule applied, finding that the officer’s conduct was sufficiently culpable and that applying the rule “will deter suspicionless searches of a probationer’s cell phone post-Riley where the terms of a probation agreement do not authorize such a search.” It vacated Fletcher’s conviction and sentence, and remanded.

The Natural Resources & Environmental Protection Act (NREPA) (MCL 324.101 et seq.); Violations of Part 31 (Water Resources Protection) (MCL 324.3101 et seq.) & Part 91 (Soil Erosion, Conservation, & Sedimentation Control) (MCL 324.9101 et seq.); Discharge of sediment-laden water into wetlands; MCL 324.3109; Equitable estoppel; Lakeside Oakland Dev., LC v. H & J Beef Co.; MCL 324.9116; Void for vagueness challenge; Department of State Compliance & Rules Div. v. Michigan Educ. Ass’n-NEA; People v. Lawhorn; “Soil erosion”; MCL 324.9101(17); MI Admin Code, R 323.1709 & 323.1710; Due process challenge to fines for failing to have an individual National Pollutant Discharge Elimination System (NPDES) permit; Distinguishing Department of Natural Res. v. Bayshore Assoc., Inc.; MCL 324.3112(1); “Waste” & “wastewater”; R 323.2104(aa)(i), (xiv), & (bb); An individual permit as a “site-specific permit”; MCL 324.3118; R 323.2190 & 323.2112; Enforcement of a settlement agreement; Unclean hands doctrine; McFerren v. B & B Inv. Group; Attorney Gen. v. PowerPick Club; Attempt to use a post-deposition affidavit to contradict earlier, damaging testimony to create a question of fact; Kaufman Payton, PC v Nikkila; Department of Environment, Great Lakes, & Energy (EGLE); Settlement agreement (SA); Soil erosion & sedimentation control (SESC); Eaton County Drain Commissioner (ECDC)

In this case involving fines for violating Parts 31 and 91 of the NREPA, the court concluded that the evidence showed the wetlands boundary was what was referred to as the BD line and that plaintiff-EGLE was not estopped from asserting that an orange fence did not represent the boundary. It also rejected defendant-Brookside’s void for vagueness challenge to MCL 324.9116, noting the Legislature defined the term soil erosion and determining that “Brookside was well aware of the prohibited conduct and was not fined for arbitrary decisions by the enforcing agencies.” It also rejected Brookside’s due process challenge to the fines assessed for failing to have an individual NPDES permit. Finally, it found that the trial court did not abuse its discretion in granting EGLE’s motion to enforce the parties’ SA, rejecting Brookside’s unclean hands argument. The “issue of the wetlands boundary was important because it impacted whether Brookside was violating Part 31 of the NREPA by discharging sediment into wetlands.” The court determined that the evidence was adequate to establish “that the BD was the valid wetlands boundary through 2015.” While Brookside asserted that, through its expert (M), it at least it raised a genuine issue of material fact as to whether the BD line should apply, M “specifically admitted that he did not know what his hydrology wells would have shown in prior years.” The court also found Brookside’s void for vagueness challenge lacked merit. Brookside contended “that someone could be fined for failing to prevent the movement of one grain of sand or for failing to prevent soil movement during significant rain events. However, [D], an EGLE employee, again and again testified to severe violations and repeatedly stated that the Part 91 violations she observed on Brookside’s site were some of the worst she had ever seen, if not the very worst.” In addition, it was “extremely significant that Brookside had an SESC permit, based on an SESC plan that it had voluntarily submitted to the ECDC, but did not operate its site in accordance with this plan.” As to the NPDES permit issue, Bayshore was not analogous because applicable rules existed for an individual permit application. As to enforcement of the SA, under PowerPick Club, “[a] defendant with unclean hands may not defend on the” basis that plaintiff also has unclean hands. Affirmed.

Motion to change custody under the Child Custody Act (MCL 722.21 et seq.); Proper cause or a change of circumstances; MCL 722.27(1)(c); Vodvarka v. Grasmeyer; Medical & educational decision making; MCL 722.26a(7)(b); Shulick v. Richards; Best interests of the child; Lombardo v. Lombardo; Whether an evidentiary hearing was warranted; Corporan v. Henton

The court held that the trial court did not err by denying defendant-mother’s motion to change custody and modify her parenting time of the parties’ child. The trial court granted plaintiff-father sole custody of the child because of defendant’s substance abuse issues. After she made efforts to address her substance abuse and tested negative on a drug test, it granted her unsupervised parenting time on alternating Sundays and Wednesdays. It eventually granted her joint legal custody and increased her unsupervised parenting time to every other weekend plus two weeks in the summer, but denied her motion for sole custody. On appeal, the court rejected her argument that the trial court erred by denying her motion without addressing whether there was a proper cause or change of circumstances to modify its prior order, finding the allegations supporting her motion “did not establish proper cause or a sufficient change of circumstances.” Defendant’s motion to change custody and parenting time “reiterated the parties ongoing dispute regarding [the child’s] medical conditions and presented related questions relating to” the child’s education. “These are plainly important decisions regarding the child that the parties must attempt to agree on before seeking court involvement.” Because the trial court “had only recently granted joint legal custody, it did not err by denying defendant’s motion and entering an order clarifying the parties’ responsibility to co-parent.” The court found that the remainder of her allegations were “not of such a magnitude so as to require an evidentiary hearing.” Affirmed.

Suppression of DataMaster test results; Sanctions for a public body’s willful & intentional failure to comply with the Freedom of Information Act (FOIA) (MCL 15.231 et seq.); MCL 15.240b; People v. Anstey; Whether the Michigan State Police’s (MSP) failure to preserve the booking room video after defendant made a timely FOIA request constituted a violation of his due process rights; People v. Dickinson; Arizona v. Youngblood; People v. Johnson; “Bad faith”; Commercial Union Ins. Co. v. Liberty Mut. Ins. Co.

Holding that the circuit court erred by affirming the district court’s suppression of evidence and dismissal of defendant’s OWI charge, the court reversed and remanded. He was charged with OWI, but the district court granted his motion to suppress his DataMaster test results and dismissed the charge. The circuit court ultimately agreed and affirmed. On appeal, the court agreed with the prosecution that “suppression of the DataMaster test results was not an appropriate remedy for a violation of FOIA because MCL 15.240b does not expressly provide for suppression of evidence as a remedy for violation of the statute.” It noted that while “Anstey permits the possibility that a FOIA violation may result in suppression of evidence if that violation causes a constitutional violation, suppression is not appropriate just because FOIA was violated.” It also agreed with the prosecution that the district court incorrectly determined that the MSP acted in bad faith when it failed to preserve the booking room video. “Although the evidence could allow a finder of fact to infer incompetence on the part of the official actors in this case, there is no evidence of official animus on the part of the MSP post or” its FOIA Unit. “Problems undoubtedly existed, but negligence such as that shown by the record here does not create a due-process violation, and defendant has failed in meeting his burden to prove bad faith.”

Breach of agreements for payments in lieu of taxes (PILOT); The Michigan State Housing Development Authority Act (the MHSDA Act) (MCL 125.1401 et seq.); Interpretation of the plaintiff-city’s PILOT Ordinance & MCL 125.1415a; “Low income persons & families”; “Eligible”; Statutory & ordinance interpretation; Sau-Tuk Indus., Inc. v. Allegan Cnty.; Applicability of the in pari materia doctrine; In re Implementing § 6w of 2016 PA 3341 for Cloverland Elec. Coop.; Summer v. Southfield Bd. of Educ.; Voorhies v. Faust; Tyler v. Livonia Pub. Sch.; Hughes v. Almena Twp.; Enforcing plain statutory language as written; Sun Valley Foods Co. v. Ward; Preventing absurd results, injustice, or prejudice to the public interest; McAuley v. General Motors Corp.; Use of dictionaries to define terms undefined by statute; Anzaldua v. Neogen Corp.; Preemption; McNeil v. Charlevoix Cnty.; Ter Beek v. City of Wyoming; Respectful consideration of the interpretation of a statute by those charged with executing it; In re Rovas Against SBC MI; Treatment of municipal resolutions; Rollingwood Homeowners Corp. v. City of Flint

The court held that the trial court correctly ruled that MCL 125.1415a required plaintiff-city to calculate the annual PILOT charges on defendants’ low-income housing projects by distinguishing portions occupied by low-income persons from portions occupied by others. The trial court’s decision comported with and enforced the plain language of the statute, and enforced the city’s PILOT Ordinance to the extent it did not conflict with state law. It also correctly determined that defendants breached the parties’ contracts and were liable for the difference between what they paid and what the contracts required them to pay the city. Thus, the court affirmed summary disposition for the city. It found that the trial court was correct in ruling that the city “had a statutory obligation to charge defendants fees based upon plaintiff’s PILOT Ordinance in the amount of 4% of the annual shelter rents for the rents collected from low-income persons and families who occupied the housing projects, exclusive of any charges for gas, electricity, heat, or other utilities furnished to the occupants, and charge defendants pursuant to MCL 125.1415a(6) in amounts equal to the ad valorem taxes for the portions of the housing projects occupied by other than low-income persons or families.” The record showed that it considered MCL 125.1415a’s plain language “in the context of the purpose of the MSHDA Act, and read the section’s subparts in harmony with one another. The trial court properly determined that the statute did not permit the imposition of a uniform PILOT charge based on the annual shelter rent collected for the total number of units in the project. Further, the trial court correctly interpreted the statute as requiring differentiation of PILOT charges for the rental units occupied by low-income persons and families from those occupied by” other persons who paid the market rate. It “did not err by interpreting MCL 125.1415a(1), (2), (6), and (7) together and in harmony.” The court concluded that the trial court correctly “declined to enforce the PILOT Ordinance as written to charge a uniform amount for all units” in the projects because the Ordinance did not “fully comply with and conflicted with MCL 125.1415a(6). Further, the trial court correctly treated the resolutions as evidence in conjunction with other evidence of the terms of the parties’ contractual agreements.”

Governmental immunity; The sewage-disposal-system-event exception; Margaris v. Genesee Cnty.; MCL 691.1417(2); “Defect” requirement; MCL 691.1417(3)(b); MCL 691.1416(e); A sewer obstruction caused by a foreign object; Willet v. Charter Twp. of Waterford; Principle that the source of the defect is not one of the elements a plaintiff must prove under the exception; Cannon Twp. v. Rockford Pub. Sch.; Notice requirements; MCL 691.1419(1)-(3); Dybata v. Wayne Cnty.; An appellant’s failure to produce a transcript; Thompson v. Thompson; MCR 7.210(B)(1)(a); PT Today, Inc. v. Commissioner of Office of Fin. & Ins. Servs.

The court concluded that defendant-city water and sewage department effectively abandoned its appeal by failing to produce the summary disposition motion hearing transcript. Further, even if it had not, the trial court did not err in ruling that a material fact question existed as to whether there was a defect in the sewer system and that plaintiff did not have to file a separate claim for the 10/17 flooding event. Thus, the court affirmed the denial of defendant’s motion. After a major flooding event in 11/16, plaintiff filed a written claim for damages that defendant denied. It also sought damages for the 10/17 event. There was “ample evidentiary support for plaintiff’s allegation that the sewage system had a defect. After a year of defendant insisting that the backups were caused by an obstruction in the service lead, in [1/18] extensive work was done on the main sewer line after which wastewater in the apartment building receded and water in the sewer main flowed freely. According to plaintiff, there have been no backups in the apartment building since. Defendant does not dispute that there was debris removed from the sewer, and, tellingly, it no longer asserts that the defect was in the service lead.” Rather, it contended that plaintiff’s claim failed because it did not identify the cause of the defect as the debris was not the same debris that allegedly entered the system during a demolition project. But the court concluded that there was a fact question as to “whether the debris was the result of the demolitions conducted at the City’s behest” in 2015, and, more importantly, defendant failed to support “its position that plaintiff’s claim fails if it cannot identify the source of the debris causing the blockage.” Its reliance on Willet was misplaced, as the court did not hold “that government agencies are not liable for obstructions caused by unknown third parties. While plaintiff must prove multiple elements under the sewage-disposal-system event exception, the source of the defect is not one of them.” As to the lack of written notice of the 10/17 flooding, plaintiff immediately notified defendant of the event, triggering “defendant’s obligation under MCL 691.1419(2). However, defendant did not inform plaintiff that it was required to file another written claim or provide any other information required by subsection (2).” As a result, plaintiff could proceed pursuant to MCL 691.1419(3).

Quiet title action; Whether a state court has subject-matter jurisdiction to decide an easement dispute in favor of a non-Native American on land owned by a non-Native American when the land is located on a Native American reservation; Alaska v. Native Vill. of Venetie Tribal Gov’t; State Treasurer v. Duty (Unpub.); Subject-matter jurisdiction; Const. 1963, art. 6, § 13; MCL 600.605; Campbell v. St. John Hosp.; Okrie v. Michigan; Prime Time Int’l Distrib., Inc. v. Department of Treasury; “Indian country”; 18 USC § 1151; Seymour v. Superintendent of WA State Penitentiary; McGirt v. Oklahoma; United States v. Webb; The “infringement test”; Williams v. Lee; Pueblo of Santa Ana v. Nash (D NM); McClanahan v. State Tax Comm’n of AZ; C’Hair v. District Court of the Ninth Judicial Dist. (WY); Exception to the preclusion of tribal court jurisdiction over non-Native Americans on Native American land; Montana v. United States; Evans v. Shoshone-Bannock Land Use Policy Comm’n (9th Cir.); Strate v. A-1 Contractors; Gustafson v. Poitra (ND); Cordova v. Holwegner (WA App.); Atkinson Trading Co. v. Shirley; Nevada v. Hicks; Principle that once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over it; Plains Commerce Bank v. Long Family Land & Cattle; Criminal jurisdiction; People v. Collins; United States v. Antelope; Alexander v. Cook (NM)

Holding that the trial court had subject-matter jurisdiction over the parties’ easement dispute, the court reversed the trial court’s grant of summary disposition for defendant and remanded. Plaintiffs sought a prescriptive easement over a part of defendant’s land. Neither party is of Native American descent, but the land is located on a Native American reservation and was previously owned by a Native American. It is not held in trust for a tribe or any tribal member. The trial court found it lacked subject-matter jurisdiction. On appeal, the court began by noting that neither party cited “any federal law that would be incompatible with a state court’s exercise of jurisdiction over an easement dispute between” non-Native Americans on the reservation. As such, it focused on “the second Williams test—whether exercise of state authority over this easement dispute would infringe on the tribal interest in self-government.” It found that it would not. The court concluded that exercise of jurisdiction by the trial court “would have no significant, catastrophic-type consequences to the tribe and its power to control and govern its members and affairs. . . . Frankly, there would be little interference, if any, with tribal self-government as a result of the circuit court ruling. The tribe lost control of the disputed land (perhaps not all activity on that land, but the land itself) when it was transferred by” Native Americans to non-Native Americans, and now that it is non-Native American “fee land, the presumption is against tribal jurisdiction, and resolution of the easement dispute between” non-Native Americans on non-Native American fee lands “will have no meaningful impact on the tribe’s authority over the reservation and its members.”

Governmental immunity; The sewage-disposal-system-event exception; Margaris v. Genesee Cnty.; MCL 691.1417(2); “Defect” requirement; MCL 691.1417(3)(b); MCL 691.1416(e); A sewer obstruction caused by a foreign object; Willet v. Charter Twp. of Waterford; Principle that the source of the defect is not one of the elements a plaintiff must prove under the exception; Cannon Twp. v. Rockford Pub. Sch.; Notice requirements; MCL 691.1419(1)-(3); Dybata v. Wayne Cnty.; An appellant’s failure to produce a transcript; Thompson v. Thompson; MCR 7.210(B)(1)(a); PT Today, Inc. v. Commissioner of Office of Fin. & Ins. Servs.

The court concluded that defendant-city water and sewage department effectively abandoned its appeal by failing to produce the summary disposition motion hearing transcript. Further, even if it had not, the trial court did not err in ruling that a material fact question existed as to whether there was a defect in the sewer system and that plaintiff did not have to file a separate claim for the 10/17 flooding event. Thus, the court affirmed the denial of defendant’s motion. After a major flooding event in 11/16, plaintiff filed a written claim for damages that defendant denied. It also sought damages for the 10/17 event. There was “ample evidentiary support for plaintiff’s allegation that the sewage system had a defect. After a year of defendant insisting that the backups were caused by an obstruction in the service lead, in [1/18] extensive work was done on the main sewer line after which wastewater in the apartment building receded and water in the sewer main flowed freely. According to plaintiff, there have been no backups in the apartment building since. Defendant does not dispute that there was debris removed from the sewer, and, tellingly, it no longer asserts that the defect was in the service lead.” Rather, it contended that plaintiff’s claim failed because it did not identify the cause of the defect as the debris was not the same debris that allegedly entered the system during a demolition project. But the court concluded that there was a fact question as to “whether the debris was the result of the demolitions conducted at the City’s behest” in 2015, and, more importantly, defendant failed to support “its position that plaintiff’s claim fails if it cannot identify the source of the debris causing the blockage.” Its reliance on Willet was misplaced, as the court did not hold “that government agencies are not liable for obstructions caused by unknown third parties. While plaintiff must prove multiple elements under the sewage-disposal-system event exception, the source of the defect is not one of them.” As to the lack of written notice of the 10/17 flooding, plaintiff immediately notified defendant of the event, triggering “defendant’s obligation under MCL 691.1419(2). However, defendant did not inform plaintiff that it was required to file another written claim or provide any other information required by subsection (2).” As a result, plaintiff could proceed pursuant to MCL 691.1419(3).

Trip & fall in a hole; The gravamen of an action; Buhalis v. Trinity Continuing Care Servs.; Premises liability; Open & obvious dangers; Lugo v. Ameritech Corp., Inc.; Hoffner v. Lanctoe; Duty; Distinguishing Finazzo v. Fire Equip. Co.; Possession & control; Kubczak v. Chemical Bank & Trust Co.; Principle that the court will not reverse a trial court’s order of summary disposition when the right result was reached for the wrong reason; Forest Hills Coop. v. Ann Arbor

Holding that the trial court reached the correct result, albeit for the wrong reason, the court affirmed its grant of summary disposition for defendant-contractor. Plaintiff sued defendant for injuries she sustained when she tripped and fell in a hole next to a newly poured concrete driveway on which she had parked. She claimed defendant failed to properly repave the driveway, “creating gaps and holes along its sides[,]” failed to warn her of the potentially dangerous conditions around it, and “failed to repair defective and dangerous conditions on the land.” On appeal, plaintiff argued that the trial court erred by holding that the alleged defect that caused her fall was open and obvious. The court found that although a genuine issue of material fact existed and the trial court erred by ruling the condition was open and obvious, defendant was entitled to summary disposition because it owed her no duty. It first noted that plaintiff’s claim sounded in premises liability, not ordinary negligence. It then found that a “rational trier of fact might reasonably conclude that no visibly dangerous condition existed before plaintiff stepped on the exposed dirt; rather, a dangerous hole was created when plaintiff stepped there, with the surface ground giving way because the underlying soil had been saturated or washed away by a subterranean sewer leak.” However, in contrast to “the Finazzo defendants, defendant here was not situated to prevent harm to invitees or others on the premises arising from any conditions on the land.” Indeed, there was no “evidence indicating that defendant had either notice of the condition at issue or authority to inspect the premises such that defendant reasonably should have had notice.” As such, the court could not hold that “defendant—rather than the actual owner and possessor of the subject premises—owed a duty to plaintiff that would support her premises-liability claim.”

Motion for disqualification of the trial court; MCR 2.003(C); Presumption a trial judge is unbiased; Mitchell v. Mitchell; Judicial rulings as a basis for the motion; Armstrong v. Ypsilanti Charter Twp.; Remarks made during trial; In re MKK; Untimely motion; MCR 2.003(D)(1)(a); Attempting to force a judge’s disqualification by suing the judge; Grievance Adm’r v. Fieger; In re Disqualification of Saffold (OH); Olsen v. Wainwright (5th Cir.); MI Code of Judicial Conduct, Canon 3(A)(4); Disclosure of alleged ex parte communications; Personal protection order (PPO) enjoining defamatory speech on social media; Whether the nondomestic PPO statute (MCL 600.2950a) bars or provides a remedy for defamation; MCL 750.411s; Buchanan v. Crisler; TM v. MZ (On Remand); McFadden v. Detroit Bar Ass’n; “Post a message”; MCL 750.411s(8)(i); Principle that MCL 750.411s “does not prohibit constitutionally protected speech or activity”; MCL 750.411s(6)

The court held that the trial court and chief judge did not commit reversible error as to respondent-KL’s motion for disclosure of alleged ex parte communications between the trial court and its counsel in KL’s federal lawsuit against it, or to disqualify the trial court. But while 600.2911 (providing money damages for defamation) does not preclude enjoining defamatory communications that meet the elements of MCL 750.411s, the language of the amended PPO was too broad and inconsistent with the law. Thus, the court affirmed in part, reversed in part, and remanded for modification of the amended PPO as set forth in the opinion. KL and his former girlfriend have a child, O. Petitioner-TT is O’s maternal great aunt. The amended PPO prohibited KL “from posting defamatory statements about [p]etitioner on social media and/or from publishing such statements elsewhere.” KL failed to address on appeal one of the reasons the trial court denied the motion for disqualification – that it was untimely. In addition, the court found “no indication that the trial court acted in a biased or less than impartial manner.” It did not prevent him from presenting his side. While it did refuse to allow him to withdraw his motion to terminate the PPO, a trial court “has the inherent authority to exercise its discretion in controlling its docket.” Considering that he couched his “notice of withdrawal in terms that reserved a right to refile the motion to terminate the PPO in the future, which was not a ‘right’ that” he could dictate to the trial court, that the hearing was already in progress, and there had been several adjournments, the trial court’s decision did not show actual bias against KL. As to the alleged violation of Canon 3(A)(4), the court concluded that accepting his argument “would effectively vitiate the principle that a person cannot force a judge’s disqualification merely by suing that judge.” It also noted that there was no evidence of any ex parte communications. As to the PPO, “the trial court did not err by concluding that respondent made defamatory statements concerning” TT on Facebook. Further, applying the “modern trend,” the court held that when a respondent argues a “PPO would prohibit constitutionally protected speech and the petitioner counters that the posted messages are defamatory, the petitioner need not show economic injury.” But also consistent with the modern trend, “the PPO needs to be specifically limited to the adjudicated speech.”

Quiet title action; Whether a state court has subject-matter jurisdiction to decide an easement dispute in favor of a non-Native American on land owned by a non-Native American when the land is located on a Native American reservation; Alaska v. Native Vill. of Venetie Tribal Gov’t; State Treasurer v. Duty (Unpub.); Subject-matter jurisdiction; Const. 1963, art. 6, § 13; MCL 600.605; Campbell v. St. John Hosp.; Okrie v. Michigan; Prime Time Int’l Distrib., Inc. v. Department of Treasury; “Indian country”; 18 USC § 1151; Seymour v. Superintendent of WA State Penitentiary; McGirt v. Oklahoma; United States v. Webb; The “infringement test”; Williams v. Lee; Pueblo of Santa Ana v. Nash (D NM); McClanahan v. State Tax Comm’n of AZ; C’Hair v. District Court of the Ninth Judicial Dist. (WY); Exception to the preclusion of tribal court jurisdiction over non-Native Americans on Native American land; Montana v. United States; Evans v. Shoshone-Bannock Land Use Policy Comm’n (9th Cir.); Strate v. A-1 Contractors; Gustafson v. Poitra (ND); Cordova v. Holwegner (WA App.); Atkinson Trading Co. v. Shirley; Nevada v. Hicks; Principle that once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over it; Plains Commerce Bank v. Long Family Land & Cattle; Criminal jurisdiction; People v. Collins; United States v. Antelope; Alexander v. Cook (NM)

Holding that the trial court had subject-matter jurisdiction over the parties’ easement dispute, the court reversed the trial court’s grant of summary disposition for defendant and remanded. Plaintiffs sought a prescriptive easement over a part of defendant’s land. Neither party is of Native American descent, but the land is located on a Native American reservation and was previously owned by a Native American. It is not held in trust for a tribe or any tribal member. The trial court found it lacked subject-matter jurisdiction. On appeal, the court began by noting that neither party cited “any federal law that would be incompatible with a state court’s exercise of jurisdiction over an easement dispute between” non-Native Americans on the reservation. As such, it focused on “the second Williams test—whether exercise of state authority over this easement dispute would infringe on the tribal interest in self-government.” It found that it would not. The court concluded that exercise of jurisdiction by the trial court “would have no significant, catastrophic-type consequences to the tribe and its power to control and govern its members and affairs. . . . Frankly, there would be little interference, if any, with tribal self-government as a result of the circuit court ruling. The tribe lost control of the disputed land (perhaps not all activity on that land, but the land itself) when it was transferred by” Native Americans to non-Native Americans, and now that it is non-Native American “fee land, the presumption is against tribal jurisdiction, and resolution of the easement dispute between” non-Native Americans on non-Native American fee lands “will have no meaningful impact on the tribe’s authority over the reservation and its members.”

Termination under § 19b(3)(c)(i); In re Williams; Reasonable reunification efforts; Timely raising an alleged violation of the Americans with Disabilities Act (ADA) (42 USC § 12101 et seq.); In re Terry; Tailoring services to accommodate a parent’s special needs; In re Hicks/Brown; Reasonable time to make changes & benefit from services; In re Mason; A parent’s responsibility to participate in services; In re Frey; Child’s best interests; MCL 712A.19b(5); MCR 3.977(E)(4); In re Moss Minors; In re Olive/Metts Minors; In re White; In re VanDalen; Parent-agency treatment plan (PATP)

The court concluded that the DHHS provided respondent-mother with suitable accommodations and several opportunities to engage in services that could have helped her, but “she refused to cooperate and failed to benefit from” them. Thus, it rejected her claim that the DHHS did not make reasonable reunification efforts. It also held that § (c)(i) supported termination, and that terminating her parental rights was in the child’s best interests. Noting that the issue of whether the DHHS violated the ADA was unpreserved, the court found that the record showed the DHHS acknowledged during the case that she “had intellectual impairments despite respondent’s denial of any mental health issues.” The record also supported the trial court’s finding that the DHHS provided reunification services, including, among others, individual counseling, funding for counseling, parent mentoring, “a substance abuse assessment, two psychological evaluations, housing assistance, transportation assistance,” and parenting time. It also provided “reasonable modifications to accommodate her impairments, including reading and explaining the” PATP to her, providing her with a brief summary of the PATP, explaining the relevant dates and expectations to her, discussing the PATP “with her social worker and her attorney, requesting a female counselor for” her, and extending her parent-mentor services. But the evidence showed that she “failed to avail herself of the services and reasonable accommodations made for her impairments.” As to § (c)(i), the evidence established that she failed to make “the necessary life changes to enable her to provide proper care and custody of the child. Although respondent obtained housing, she failed to participate in services to enable her to overcome her mental health issues and she failed to develop parenting skills to permit reunification with the child.” It had been over 182 days since the initial disposition and the conditions leading to adjudication still existed, with no reasonable likelihood they “would be rectified within a reasonable time considering the child’s age.” As to the child’s best interests, “evidence established that respondent’s conduct negatively impacted” her and that she had developed a bond with her foster family, who were interested in adopting her. Affirmed.