Whether a university ordinance prohibiting firearms on university property violates an individual’s right to bear arms; U.S. Const. amend. II; New York State Rifle & Pistol Ass’n, Inc, et al v Bruen

In an order after the application for leave to appeal the Court of Appeals judgment (see e-Journal # 65345 in the 6/8/17 edition for the published opinion) was granted, the court vacated its order granting the application, vacated the Court of Appeals judgment, and remanded the case to the Court of Appeals for consideration in light of New York State Rifle & Pistol Ass’n.

Concurring, Justice Viviano wrote to offer thoughts on how the U.S. Supreme Court’s analysis in New York State Rifle & Pistol Ass’n might apply to this case involving “the constitutionality of the University of Michigan’s prohibition of firearms on campus.”

Assaulting/resisting/obstructing a police officer (MCL 750.81d(1)); Requirement that the officer acted lawfully; People v Moreno; Command that defendant participate in a show-up; People v Sammons; Malicious destruction of police property (MCL 750.377b); Tardy disclosure of an exhibit; Brady v Maryland; People v Chenault; Norris v Schotten (6th Cir); Other acts evidence; MRE 404(b)(1); Scheme or plan or system of doing the acts; Notice; MRE 404(b)(2); Ineffective assistance of counsel; Factual predicate; Failure to object to the show-up identification procedure & the other acts evidence; Futility; Closing argument

The court held that the officers’ command that defendant participate in a show-up was not an unlawful command that justified his resistance. Further, he did not offer any authority supporting an “argument that a defendant may resist a police command, even if unlawful, by maliciously destroying police property.” He also failed to show that the tardy disclosure of an exhibit constituted a Brady violation. And the court concluded the trial court did not abuse its discretion in admitting other acts evidence as to his prior acts of retail fraud. Finally, it rejected his ineffective assistance of counsel claims. He was convicted of assaulting/resisting/obstructing a police officer, malicious destruction of police property, and second-degree retail fraud. He asserted “that because show-up identifications are viewed as unreliable and often are held to be inadmissible, they are justified only when necessary, such as when a witness may not otherwise be available for a line-up.” He contended a show-up identification was not necessary here “because there was little doubt that defendant was the perpetrator; thus,” he argued the officers’ command that he “get in the patrol car to participate in a show-up was not” lawful. The court disagreed with his reasoning. While “some show-ups result in evidence that is not sufficiently reliable, it does not follow that it is unlawful for an officer to require a defendant to participate in a show-up. Show-ups have not been declared unlawful police activity; they are merely considered problematic in producing reliable identifications. Defendant” failed to identify any authority supporting “his theory that it is unlawful for police officers to conduct a show-up as part of their investigation of a crime, or unlawful for an officer to require a suspect to participate in a show-up.” The court further noted that “the crime of malicious destruction of police property does not have” lawful police action as an element. As to the exhibit, a document purportedly establishing “the cost to repair damage to the patrol car[,]” the court found that defendant did not show he was prejudiced by its late disclosure, that it was favorable to him, or that it was material. And the court concluded the other acts “evidence was properly admitted to prove defendant’s scheme or plan, and a system in doing the acts.” Affirmed.

Admission of other acts evidence of sexual abuse of a minor under MCL 768.27a(1) & (2); Distinguishing MCL 768.27a & MRE 404(b); Relevance; MRE 401; Unfair prejudice; MRE 403; People v Watkins; Cautionary instruction; Sentencing; Inapplicability of the sentencing guidelines where a sentence of life imprisonment is mandatory; MCL 750.520b(2)(c); MCL 769.34(5)

The court held that the trial court did not err by admitting evidence of defendant’s sexual abuse of another minor because it was relevant and not unfairly prejudicial. It also held that the trial court properly stated that the guidelines did not apply to his sentence and correctly imposed the mandatory sentence. He was convicted of CSC I for sexually abusing the victim, his wife’s younger sister, beginning when she was 12 years old and he was 38. The trial court sentenced defendant, who had previously been convicted of CSC I, to mandatory life imprisonment without the possibility of parole. On appeal, the court rejected his argument that he was unfairly prejudiced by the trial court’s admission of evidence that he sexually abused another 12-year-old girl in 1996. The evidence was relevant because evidence of his “prior criminal sex acts with a 12-year-old girl tended to make more likely” the victim’s otherwise uncorroborated testimony. And “[c]onsidering the highly probative value of the other acts evidence, the probative value was not substantially outweighed by the danger of unfair prejudice.” It was probative of his “intent and propensity to sexually assault 12-year-old girls. Moreover, in its final instructions, the trial court gave a cautionary instruction to the jury concerning the proper use of the evidence, thereby limiting the potential for unfair prejudice.” The court also rejected his claim that he was entitled to sentencing relief because the trial court refused to consider his challenge to the accuracy of the scoring of his guidelines, finding his contention “meritless because MCL 750.520b(2)(c) established a mandatory penalty of life imprisonment for his conviction, so the sentencing guidelines do not apply.” Affirmed.

Action to enforce a judgment lien; Motion to strike the pleadings & enter a default judgment; MCR 2.313(B)(2)(c); Principle that the trial court must consider less drastic sanctions before opting for a default judgment; Distinguishing Thorne v Bell & Vicencio v Ramirez; Effect of a “flagrant & wanton” refusal to comply with discovery orders; Prejudice; Michigan Uniform Voidable Transactions Act (MUVTA)

The court held that the trial court did not err by entering a default judgment against defendants after striking their pleadings as a sanction in favor of plaintiffs. Plaintiffs sued defendants under the MUVTA, alleging fraud and intentional interference with the judgment liens they had obtained. The trial court granted plaintiffs’ motion to compel defendants to produce certain documents, and eventually entered the default judgment and struck their pleadings. On appeal, the court rejected defendants’ argument that the trial court was required to consider a less drastic sanction on the record, and that it abused its discretion by entering a default judgment. “Unlike Thorne and Vicencio, in the instant case, the trial court found defendants willfully and repeatedly disobeyed the trial court’s orders to produce documents—specifically, defendants violated” its order to compel. “Also contrary to Thorne, plaintiffs responded to defendants’ failure to produce documents with a motion to compel. The trial court’s order to compel gave defendants the opportunity to come into compliance with discovery obligations. Defendants failed to do so.” In response to plaintiffs’ motion to strike and enter a default, defendants “essentially asserted the discovery materials sought by plaintiffs would be submitted at a later date—yet defendants continued to thwart attempts at discovery.” As such, the trial court “did not abuse its discretion when it found that defendants’ dilatory actions, coupled with their bad faith responses to discovery requests, merited the entry of default.” In addition, defendants “failed to offer any dates for deposition before the discovery cutoff date. In its order, the trial court stated that it carefully considered the record, and concluded that defendants had willfully disobeyed its” order and other discovery obligations. Thus, “plaintiffs were prejudiced and no lesser sanction could suffice.” Affirmed.

Child custody; Motion to change domicile; MCL 722.31(4); Rains v Rains; Established custodial environment (ECE); The best-interest factors; MCL 722.23; Factors (d), (e), & (j); Ireland v Smith; Distinguishing Bylinski v Bylinski & Kaiser v Kaiser; Principle that a motion for directed verdict may be treated as a motion for involuntary dismissal under MCR 2.504(B)(2); Sands Appliance Servs, Inc v Wilson

The court held that the trial court did not err by granting plaintiff-mother’s motion to change the domicile of the parties’ children. Plaintiff sought to change their domicile from Clarkston to Traverse City on the basis that her new fiancé lived and worked in Traverse City. Defendant-father unsuccessfully opposed the motion. On appeal, the court rejected his argument that the trial court erred in its findings on some of the best-interest factors, and in its determination that plaintiff established by clear and convincing evidence that the proposed move was in the children’s best interests. First, it found he “failed to establish that any of the trial court’s findings on the best-interest factors” were against the great weight of the evidence. His argument focused “almost exclusively on factor (j), and he has failed to present a successful challenge to the trial court’s determination that plaintiff was favored on that factor. Although the trial court indicated that the best-interest factors other than factor (j) (setting aside factor (i) for the moment) were equal, the trial court has discretion to determine how much weight to accord to the best-interest factors,” and it “reasonably found factor (j) to merit considerable weight in these circumstances.” Also, his argument as to “the trial court’s best-interests determination ignore[d] the fact that the trial court considered the reasonable preferences of the children under factor (i), which could also have played a role in the trial court’s overall best-interests determination.” The court also rejected his claim that the trial court’s findings as to the change-of-domicile factors were against the great weight of the evidence. “In particular, the evidence supported the trial court’s finding on factor (a) that the change of domicile had the capacity to improve the quality of life for the children and plaintiff, and the evidence supported the trial court’s finding on factor (c) that it was possible to modify the parenting-time schedule in a manner that preserved and fostered each party’s parental relationship with the children.” Finally, the court rejected his contention that the trial court erred by denying his motion for a directed verdict or involuntary dismissal, finding he failed to show that his testimony at the evidentiary “hearing was so critical that an involuntary dismissal was required in the absence of that testimony.” Affirmed.

Action to enforce a judgment lien; Motion to strike the pleadings & enter a default judgment; MCR 2.313(B)(2)(c); Principle that the trial court must consider less drastic sanctions before opting for a default judgment; Distinguishing Thorne v Bell & Vicencio v Ramirez; Effect of a “flagrant & wanton” refusal to comply with discovery orders; Prejudice; Michigan Uniform Voidable Transactions Act (MUVTA)

The court held that the trial court did not err by entering a default judgment against defendants after striking their pleadings as a sanction in favor of plaintiffs. Plaintiffs sued defendants under the MUVTA, alleging fraud and intentional interference with the judgment liens they had obtained. The trial court granted plaintiffs’ motion to compel defendants to produce certain documents, and eventually entered the default judgment and struck their pleadings. On appeal, the court rejected defendants’ argument that the trial court was required to consider a less drastic sanction on the record, and that it abused its discretion by entering a default judgment. “Unlike Thorne and Vicencio, in the instant case, the trial court found defendants willfully and repeatedly disobeyed the trial court’s orders to produce documents—specifically, defendants violated” its order to compel. “Also contrary to Thorne, plaintiffs responded to defendants’ failure to produce documents with a motion to compel. The trial court’s order to compel gave defendants the opportunity to come into compliance with discovery obligations. Defendants failed to do so.” In response to plaintiffs’ motion to strike and enter a default, defendants “essentially asserted the discovery materials sought by plaintiffs would be submitted at a later date—yet defendants continued to thwart attempts at discovery.” As such, the trial court “did not abuse its discretion when it found that defendants’ dilatory actions, coupled with their bad faith responses to discovery requests, merited the entry of default.” In addition, defendants “failed to offer any dates for deposition before the discovery cutoff date. In its order, the trial court stated that it carefully considered the record, and concluded that defendants had willfully disobeyed its” order and other discovery obligations. Thus, “plaintiffs were prejudiced and no lesser sanction could suffice.” Affirmed.

Whether a university ordinance prohibiting firearms on university property violates an individual’s right to bear arms; U.S. Const. amend. II; New York State Rifle & Pistol Ass’n, Inc, et al v Bruen

In an order after the application for leave to appeal the Court of Appeals judgment (see e-Journal # 65345 in the 6/8/17 edition for the published opinion) was granted, the court vacated its order granting the application, vacated the Court of Appeals judgment, and remanded the case to the Court of Appeals for consideration in light of New York State Rifle & Pistol Ass’n.

Concurring, Justice Viviano wrote to offer thoughts on how the U.S. Supreme Court’s analysis in New York State Rifle & Pistol Ass’n might apply to this case involving “the constitutionality of the University of Michigan’s prohibition of firearms on campus.”

Due process; Reliance on a no contest plea at the adjudication phase to establish statutory grounds for termination; Preponderance of the evidence standard for establishing jurisdiction; Clear & convincing evidence standard for termination; Court rule governing no contest pleas; MCR 3.971(B) & (D); MCR 3.977(E)

The court held that the trial court violated respondent-father’s right to due process when it relied “solely on his no contest plea at the adjudication phase” in determining that statutory grounds for terminating his parental rights were established by clear and convincing evidence. Thus, it vacated the order terminating his parental rights and remanded. The court noted that the evidentiary standard for a trial court to assume jurisdiction over children is preponderance of the evidence. “But to terminate parental rights, a trial court must find that” clear and convincing evidence supports the existence of at least one of the statutory grounds for termination in MCL 712A.19b(3). While “the trial court stated that it would address the satisfaction of the statutory grounds for termination and determine the bests interests of the children, it expressly limited the proofs at the dispositional hearing to best interests. In doing so, [it] effectively held that the no contest plea was conclusive evidence to support the statutory grounds for termination.” But the court noted that the plain language of MCR 3.971, which governs no contest pleas, “does not give the plea incontestable effect.” Further, when termination “is sought at the initial dispositional hearing, the court must find that the statutory grounds for termination are premised on clear and convincing legally admissible evidence.” Respondent’s no contest plea to permit the trial “court to obtain jurisdiction merely satisfied the preponderance of the evidence standard.” He was not informed, “and the court rule does not provide, that the preponderance of the evidence of his plea used to support the assumption of jurisdiction would be given conclusive effect and deemed to be clear and convincing legally admissible evidence to” establish statutory grounds for termination. The DHHS was not relieved of its burden to establish that statutory grounds were proven “by clear and convincing legally admissible evidence. Moreover, the trial court expressly denied respondent the opportunity to present any evidence at the initial dispositional hearing” as to statutory grounds, stating “it would only entertain testimony addressing best interests of the children. Thus, the import or conclusive effect given to the no contest plea and the failure to allow the presentation of additional evidence addressing the statutory grounds for termination deprived respondent of due process.”