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• Administrative Law (1)

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  This summary also appears under Healthcare Law

  e-Journal #: 74573

  Case: In re Jankowski, D.O.

  Court: Michigan Court of Appeals ( Published-After-Release Opinion )

  Judges: Per Curiam – Markey, Meter, and Gadola

  Issues:

  Suspension of respondent’s license to practice medicine; Violations of MCL 333.16221(a) (negligence or failure to exercise due care), MCL 333.16221(b)(i) (incompetence), MCL 333.16221(b)(vi) (lack of good moral character), & MCL 333.16221(c)(iv) (prescribing or administering drugs for other than lawful diagnostic or therapeutic purposes); Applicability of the 2016 CDC Guideline for Prescribing Opioids for Chronic Pain (CDC Guidelines) to pain management physicians as to prescribing pain medication; Negligence; Sillery v Board of Med; Whether the administrative law judge (ALJ) adopted the correct standard of care (SOC); “Good moral character”; MCL 33.8.41(1); Competent, material, & substantial evidence; Department of Cmty Health v Risch

  Summary:

  [This opinion was previously released as an unpublished opinion on 11/19/20.] Concluding that the Board of Osteopathic and Surgical Medicine Disciplinary Subcommittee could have found, using its own expertise, that the evidence showed respondent violated the Public Health Code, the court held that the “Board’s decision was supported by competent, material, and substantial evidence on the record.” Thus, it affirmed the Board’s final order that fined him $25,000 and suspended his medical license for three years based on its determination that he “violated MCL 333.16221(a) (negligence or failure to exercise due care), MCL 333.16221(b)(i) (incompetence), MCL 333.16221(b)(vi) (lack of good moral character), and MCL 333.16221(c)(iv) (prescribing or administering drugs for other than lawful diagnostic or therapeutic purposes)[.]” He argued that the 2016 CDC Guidelines and other literature cited by a witness (Dr. C) as the applicable SOC applied “to primary care physicians and not chronic pain management practitioners like respondent.” But the court found that the ALJ did not err by adopting those Guidelines as the relevant SOC. “Following his review of the record and testimony, the ALJ determined that respondent did not adequately justify concurrent prescriptions, did not adequately address the risk of abuse or diversion with patients, and failed to justify the high level of medications prescribed.” C’s testimony supported those conclusions. Further, the court noted that “a disciplinary subcommittee may rely on its own expertise in determining violations of the Public Health Code.” It disagreed with respondent’s claim that the final order was not supported by competent, material, and substantial evidence showing “he violated MCL 333.16221(a) or (b)(i) through negligence and incompetency because the record” supported that he exercised due care in treating “patients and in documenting the course of their care.” Rather, it determined that C’s testimony about concerns as to “respondent’s failure to adequately justify concurrent prescriptions, to address the risk of abuse or diversion with patients, and to justify changes and high levels of medications prescribed” together with the ALJ’s own conclusions constituted sufficient competent evidence establishing “that respondent violated MCL 333.16221(a) and (b)(i), so as to support the Subcommittee’s final order.”

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• Attorneys (1)

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  This summary also appears under Litigation

  e-Journal #: 74478

  Case: Owen v. Conto

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Cavanagh, Jansen, and Shapiro

  Issues:

  Case evaluation sanctions; Award of attorney fees in an amount greater than what defendants’ counsel was actually paid; A “reasonable attorney fee”; MCR 2.403(O)(6)(b); Cleary v Turning Point; Failure to hold an evidentiary hearing on the request for case evaluation sanctions; Effect of the trial court’s failure to follow the analysis required in Smith v Khouri

  Summary:

  The court held that the trial court did not abuse its discretion by awarding attorney fees in an amount greater than what defendants’ counsel was actually paid. It also did not abuse its discretion by failing to conduct an evidentiary hearing on defendants’ request for case evaluation sanctions. Finally, the trial court’s failure to specifically discuss any of the Smith factors in reaching its decision was harmless error under the specific circumstances of this case. As to plaintiff’s challenge to the amount awarded, the court noted that defendants’ “counsel billed for 765.7 hours. Using that number, the $115,000 award would calculate to a rate of just over $150 for all 765.7 hours, or $158.46 per hour with the removal of 40 hours for postverdict evaluations. Defendants’ motion for sanctions set forth the professional standing and experience of each of the attorneys who billed hours on the case and set forth a reasonable fee. In addition, attached to defendants’ amended bill of costs were” attorney affidavits “setting forth their qualifications and stating that the rates of $450 for senior partners, $350 for partners, and $200 for associates were reasonable.” There was no evidence to support plaintiff’s claim that $160 per hour or $115,000 was “an amount greater than either the amount actually charged or the amount the insurance company actually paid.” The court was “aware that some of the lack of evidence resulted from the trial court’s determination that plaintiff was not entitled to know the rates and total amount of attorney fees charged by defendants’ counsel and ultimately paid by the insurance company.” But these numbers were not required to decide a reasonable fee. The court noted that reasonable fees under MCR 2.403(O) “are not equivalent to the actual fees charged.” Thus, to the degree that there was “any record evidence to support that the trial court’s award of $115,000 was greater than the amount defendants’ counsel charged or received from the insurance company, that evidence is not sufficient, by itself, to justify a determination that the trial court abused its discretion.”

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• Business Law (1)

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  This summary also appears under Contracts

  e-Journal #: 74481

  Case: Jamil v. TBI Props., LLC

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Gleicher, K.F. Kelly, and Shapiro

  Issues:

  Breach of contract; Whether contractual agreements were enforceable; AFT MI v Michigan; Consideration independent of the sale of the business; General Motors Corp v Department of Treasury; SNJ Enterprises, Inc. (SNJ)

  Summary:

  Concluding that “the trial court failed to address whether the contractual agreements were of any import and supported by consideration independent of an ultimate sale of the business,” the court vacated the judgment of no cause of action on the breach of contract claims and remanded. The trial court’s factual findings as to the parties’ purported agreement to purchase and sell plaintiff-Samir’s company, SNJ, were central to the appeal. Plaintiffs asserted it “clearly erred when it found the Agreements to be for the purpose of selling SNJ because the Agreements evidence a loan, not a sale.” This argument had merit. The agreements did “not reference the larger agreement the trial court found to exist for the sale of SNJ.” Thus, on their face, they appeared “to simply evidence an indebtedness to plaintiffs in the amount of $510,000.” But plaintiffs never denied an agreement to “sell SNJ to defendants once plaintiffs’ ‘investment’ in SNJ was paid back.” Thus, the trial court did not clearly err in holding that “the agreement between the parties included the eventual sale of SNJ to defendants. However, the trial court did not adequately explain the purpose of the Promissory Note and Security Agreement, if the only agreement between the parties was for the purchase and sale of SNJ. By concluding the sale of SNJ to be the only agreement between the parties, the trial court effectively ignored the plain language of the Agreements that clearly evidenced an additional promise by defendants under which they became indebted to plaintiffs.” The court noted that “the trial court did not explain why defendants became indebted to plaintiffs, including pledging a security interest in” defendant-TBI (co-owned by defendants-Joanna and Nibras), “all for the right to purchase SNJ by” 5/1/15. The trial court “did not address why the letter agreement expressly set forth that the documents would not be recorded in the absence of a default by the borrower. Thus, while the trial court did not clearly err when it concluded there was an agreement between plaintiffs and defendants for the sale of SNJ, the trial court did not adequately explain how the Agreements fit into the sale agreement. Specifically, by failing to adequately address the purpose of the Security Agreement and Promissory Note, the trial court did not consider whether additional promises and, therefore, additional consideration, supported the Agreements.”

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• Constitutional Law (2)

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  This summary also appears under School Law

  e-Journal #: 74570

  Case: Council of Orgs. & Others for Educ. About Parochiaid v. State of MI

  Court: Michigan Supreme Court ( Opinion )

  Judges: For Affirmance – Markman, Zahra, and Viviano; For Reversal – Cavanagh, McCormack, and Bernstein; Not Participating – Clement

  Issues:

  Constitutionality of MCL 388.1752b (reimbursement of nonpublic schools for costs of complying with state health, safety, & welfare mandates); Const 1963, art 8, § 2 (as amended by Proposal C); Advisory Opinion re Constitutionality of 1970 PA 100; Traverse City Sch Dist v Attorney Gen; In re Advisory Opinion re Constitutionality of 1974 PA 242

  Summary:

  Holding “that MCL 388.1752b does not violate Const 1963, art 8, § 2, as amended by Proposal C, because it does not appropriate funds for nonpublic-school educational services[,]” an evenly divided court affirmed the Court of Appeals judgment that the statute is constitutional, and remanded the case to the Court of Claims. The justices voting for affirmance concluded that the statute, which provides for reimbursement of nonpublic schools for costs of complying with state health, safety, and welfare mandates, was “in accordance with both the religion clauses of the First Amendment of our federal Constitution and Article 8, § 2, as amended by Proposal C in 1970, of” the Michigan Constitution. They found that reimbursement for such mandates was “permissible under Traverse City, which stated that public funds may constitutionally be appropriated to ‘provide for [nonpublic-school students’] physical health and safety,’ so long as such appropriations ‘only incidentally involve the operation of educating private school children’ and do not create an ‘excessive entanglement between church and state.’” They determined that nothing in the statute suggested “that public funds are to be appropriated for nonpublic-school educational services; rather, MCL 388.1752b(1) provides that public funds are to be appropriated only for ‘police power’ public services to which all educational institutions and all students are generally entitled.” Although they recognized that “Traverse City concerned the provision of health, safety, and welfare ‘services,’” while this case concerned providing “public funds directly to nonpublic schools for compliance with state health, safety, and welfare mandates[,]” they found there was “no principled difference in this regard because the auxiliary services permitted by Traverse City are substantively indistinguishable from the reimbursements permitted by MCL 388.1752b.”
  
  The justices voting for reversal concluded that MCL 388.1752b clearly violates article 8, § 2 of the Michigan Constitution, and that operation of this constitutional provision to prohibit funding of nonpublic schools through the statute did not raise federal constitutional concerns. Thus, they would “reverse the Court of Appeals, declare MCL 388.1752b unconstitutional, and prohibit funding under the statute.” They determined that the statute “appropriates general-fund monies for the specific purpose of providing that money directly to nonpublic schools, and only to nonpublic schools, to compensate those schools for costs incurred in adhering to this state’s general health, safety, and welfare laws. For a nonpublic school, or any other organization in Michigan, complying with general health, safety, and welfare laws is just a cost of doing business.” Further, they found that the payments called for by the statute “effectively function as payroll payments because the law reimburses nonpublic schools for the labor costs (based on the hours worked and the wage rate) of employing a person to ‘perform[] a task or tasks required to comply with a health, safety, or welfare requirement under a law or administrative rule of this state . . . .’” Determining that the justices voting for affirmance misapplied Traverse City, the justices voting for reversal concluded that “the aid provided to nonpublic schools by MCL 388.1752b is of a ‘direct’ nature. The legislation appropriates public monies for one specific purpose: to pay that money directly to nonpublic schools. None of this Court’s precedents permits such a result.”

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  This summary also appears under Election Law

  e-Journal #: 74572

  Case: League of Women Voters of MI v. Secretary of State

  Court: Michigan Supreme Court ( Opinion )

  Judges: Viviano, McCormack, Bernstein, and Cavanagh; Concurring in part, Concurring in the judgment in part, & Dissenting in part – Clement; Dissent – Markman and Zahra; Separate Dissent – Zahra and Markman

  Issues:

  Constitutional challenges to amendments of the Election Law (MCL 168.1 et seq); Geographic-distribution requirement; MCL 168.471; MCL 168.477; Checkbox requirement; MCL 168.482(7); Paid-circulator-affidavit requirement; MCL 168.482a; Motion to intervene; MCR 2.209(B); Justiciability; Federated Ins Co v Oakland Cnty Rd Comm’n; Mootness; Anway v Grand Rapids Ry Co; Personhood Nevada v Bristol (NV); Poulton v Cox (UT); Standing to seek a declaratory judgment; MCR 2.605; MCR 2.605(A)(1); Lansing Sch Educ Ass’n v Lansing Bd of Educ; Deleeuw v State Bd of Canvassers; Helmkamp v Livonia City Council; Legislative standing; Coleman v Miller

  Summary:

  Holding that the Legislature has standing to appeal when it intervenes in a case in which the Attorney General fails to defend a statute against constitutional attack, the court granted the Legislature’s motion to intervene in one of these consolidated cases. In addition, holding that this case was moot as to lead plaintiff-Michiganders for Fair and Transparent Elections (MFTE), and that none of the other plaintiffs had standing, it dismissed that case and vacated the constitutional holdings below. Finally, it held that because the lower courts’ decisions were vacated, the plaintiff-Legislature lacked standing to pursue its own case in the other matter. Plaintiffs-MFTE, League of Women Voters, and individuals (LWV plaintiffs) sought a declaration that recent amendments to the Election Law (procedures governing petition drives) were unconstitutional. The Legislature separately sued the Secretary of State seeking a declaration that they were constitutional. The Court of Claims held that the paid-circulator-affidavit requirement was constitutional, but that the geographic-distribution and checkbox requirements were not. The Court of Appeals affirmed as to the geographic-distribution and checkbox requirements, but reversed as to the affidavit requirement, finding it unconstitutional. The Legislature sought leave, and it also filed a motion to intervene in the LMV case. After the MFTE terminated its petition drive, the Supreme Court sought supplemental briefing on whether this mooted the LWV case as to MFTE, whether the remaining LWV plaintiffs had standing, and whether it should vacate the lower courts’ judgments. It first found that “when the Attorney General does not defend a statute against a constitutional challenge by private parties in court, the Legislature is aggrieved and, upon intervening, has standing to appeal.” As such, it had appellate standing in the LMV case. It next found that the case was moot as to MFTE, which did “not, at present, have anything at stake in this dispute.” The court then held that because the LWV plaintiffs did not meet the requirements of MCR 2.605, they did not have standing. “[N]othing in the relevant caselaw gives any voter standing to challenge any election-related laws at any time.” It further concluded that “the equitable considerations weigh in favor of vacating the lower-court decisions.” Finally, as to the Legislature’s case, it found that because any interest the Legislature may have had in the past had now dissipated, the matter was now moot “to the extent that any such interest could have justified standing” when the case was filed, and the Legislature “had no standing to pursue its case on the basis of the Attorney General opinion.”
  
  Justice Clement concurred in part, concurred in the judgment in part, and dissented in part, noting she did not believe the court “can avoid answering the question of whether the Legislature is entitled to maintain its action . . . and get a judgment on the merits.” As such, she agreed with the majority that the Legislature cannot maintain its action, but “would answer the question squarely rather than beating around the bush.”
  
  Justice Markman, joined by Justice Zahra, dissented, noting he “would deny the Legislature’s motion to intervene in the LWV case, hold that the Legislature has standing in its own case against the Secretary of State, and would resolve the substantive questions of law in the latter case[.]”
  
  Justice Zahra, joined by Justice Markman, also dissented, noting that because he was “not convinced that plaintiffs, the purported moving parties now seeking to have their own case declared moot, have satisfied the heavy burden required to demonstrate mootness,” he would not grant the “rare relief” granted by the majority.

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• Contracts (1)

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  This summary also appears under Business Law

  e-Journal #: 74481

  Case: Jamil v. TBI Props., LLC

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Gleicher, K.F. Kelly, and Shapiro

  Issues:

  Breach of contract; Whether contractual agreements were enforceable; AFT MI v Michigan; Consideration independent of the sale of the business; General Motors Corp v Department of Treasury; SNJ Enterprises, Inc. (SNJ)

  Summary:

  Concluding that “the trial court failed to address whether the contractual agreements were of any import and supported by consideration independent of an ultimate sale of the business,” the court vacated the judgment of no cause of action on the breach of contract claims and remanded. The trial court’s factual findings as to the parties’ purported agreement to purchase and sell plaintiff-Samir’s company, SNJ, were central to the appeal. Plaintiffs asserted it “clearly erred when it found the Agreements to be for the purpose of selling SNJ because the Agreements evidence a loan, not a sale.” This argument had merit. The agreements did “not reference the larger agreement the trial court found to exist for the sale of SNJ.” Thus, on their face, they appeared “to simply evidence an indebtedness to plaintiffs in the amount of $510,000.” But plaintiffs never denied an agreement to “sell SNJ to defendants once plaintiffs’ ‘investment’ in SNJ was paid back.” Thus, the trial court did not clearly err in holding that “the agreement between the parties included the eventual sale of SNJ to defendants. However, the trial court did not adequately explain the purpose of the Promissory Note and Security Agreement, if the only agreement between the parties was for the purchase and sale of SNJ. By concluding the sale of SNJ to be the only agreement between the parties, the trial court effectively ignored the plain language of the Agreements that clearly evidenced an additional promise by defendants under which they became indebted to plaintiffs.” The court noted that “the trial court did not explain why defendants became indebted to plaintiffs, including pledging a security interest in” defendant-TBI (co-owned by defendants-Joanna and Nibras), “all for the right to purchase SNJ by” 5/1/15. The trial court “did not address why the letter agreement expressly set forth that the documents would not be recorded in the absence of a default by the borrower. Thus, while the trial court did not clearly err when it concluded there was an agreement between plaintiffs and defendants for the sale of SNJ, the trial court did not adequately explain how the Agreements fit into the sale agreement. Specifically, by failing to adequately address the purpose of the Security Agreement and Promissory Note, the trial court did not consider whether additional promises and, therefore, additional consideration, supported the Agreements.”

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• Corrections (1)

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  e-Journal #: 74470

  Case: McCann v. State of MI

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam - Boonstra, Gadola, and Tukel

  Issues:

  The Wrongful Imprisonment Compensation Act (WICA) (MCL 691.1751 et seq); MCL 691.1753; “State correctional facility”; MCL 691.1752(d); MCL 691.1755; Compensation for time spent in preconviction detention; Sanford v Michigan

  Summary:

  Pursuant to Sanford, the court vacated the judgment of the Court of Claims to the extent that it awarded plaintiff compensation for his detention before he was incarcerated in a state correctional facility, and remanded. Plaintiff was awarded $87,672.25 under the WICA. He spent 336 days in the county jail before his plea-based conviction for perjury. In light of the Supreme Court’s decision in Sanford, the court held that plaintiff was “not eligible to receive compensation for this detainment period.” However, he was “entitled to compensation for the time he served in the Michigan DOC, which was 268 days.”

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• Criminal Law (5)

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  e-Journal #: 74569

  Case: People v. Brown

  Court: Michigan Supreme Court ( Order )

  Judges: McCormack, Viviano, Markman, Zahra, Bernstein, Clement, and Cavanagh

  Issues:

  Assessment of court costs pursuant to MCL 769.1k(1)(b)(iii); People v Lewis

  Summary:

  In an order in lieu of granting leave to appeal, the court vacated the part of the Court of Appeals judgment (see e-Journal # 72753 in the 4/14/20 edition) concerning the trial court’s assessment of court costs under MCL 769.1k(1)(b)(iii), and remanded the case to the Court of Appeals for reconsideration. The court instructed the Court of Appeals to hold this case in abeyance pending its decision in Lewis, and after it decides Lewis, to reconsider this case in light of that decision. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.

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  e-Journal #: 74571

  Case: People v. Hughes

  Court: Michigan Supreme Court ( Opinion )

  Judges: Markman, McCormack, Zahra, Viviano, Bernstein, Clement, and Cavanagh; Concurrence – Viviano

  Issues:

  Search & seizure; Whether “when the police obtain a warrant to search digital data from a cell phone for evidence of a crime, they are later permitted to review that same data for evidence of another crime without obtaining a second warrant”; Riley v California; Fourth Amendment’s text; Reasonableness; Expectation of privacy; Scope of the warrant; “Particularity” requirement; Ineffective assistance of counsel; Failure to object under the Fourth Amendment to the admission of the evidence obtained from defendant’s cell-phone data

  Summary:

  The court held that “a warrant to search a suspect’s digital cell-phone data for evidence of one crime does not enable a search of that same data for evidence of another crime without obtaining a second warrant.” It determined that “as with any other search, an officer must limit a search of digital data from a cell phone in a manner reasonably directed to uncover evidence of the criminal activity alleged in the warrant.” Thus, it reversed the judgment of the Court of Appeals and remanded to that court to address whether defendant was entitled to relief based upon the ineffective assistance of counsel. The court held that in light of the particularity requirement embodied in the Fourth Amendment and given meaning in Riley, “a search of digital cell-phone data pursuant to a warrant must be reasonably directed at obtaining evidence relevant to the criminal activity alleged in that warrant. Any search of digital cell-phone data that is not so directed, but instead is directed at uncovering evidence of criminal activity not identified in the warrant, is effectively a warrantless search that violates the Fourth Amendment absent some exception to the warrant requirement.” In this case, “the officer’s review of defendant’s cell-phone data for incriminating evidence relating to an armed robbery was not reasonably directed at obtaining evidence regarding drug trafficking-- the criminal activity alleged in the warrant-- and therefore the search for that evidence was outside the purview of the warrant and thus violative of the Fourth Amendment.”
  
  Justice Viviano concurred with the majority that the second search was unlawful under the Fourth Amendment. He noted that under “the circumstances, before conducting another search of defendant’s cell phone, the officer should have obtained a second search warrant directed toward obtaining evidence of the armed-robbery offense.” However, he did not.

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  e-Journal #: 74394

  Case: People v. Cummings

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Murray, K.F. Kelly, and Stephens

  Issues:

  Sufficiency of the evidence for a CSC I conviction under MCL 750.520b(1)(a); “Sexual penetration”; MCL 750.520a(r); Sexual penetration of a genital opening; People v Lockett; Sentencing; Reasonableness challenge; Effect of a within guidelines sentence; MCL 769.34(10); Effect of defendant’s age; People v Lemons; Court costs; MCL 769.1k(1)(b)(iii)(A)-(C); Factual basis; People v Posey

  Summary:

  Holding that there was sufficient evidence to support defendant’s CSC I conviction on count 5 for engaging in a sexual act that involved entry of his penis into the victim’s (A) genital opening, the court affirmed. It also rejected his reasonableness challenge to his within-guidelines 45-year minimum sentences, and found that remand was unnecessary as to the imposition of $1.300 in court costs. He was convicted of 13 counts of CSC I under MCL 750.520b(1)(a) and a count of child sexually abusive activity, but only challenged the sufficiency of the evidence as to one of the CSC I convictions, count 5. A testified “that, on one occasion, defendant ‘rubbed’ his private part on the part of her body ‘where the pee comes out,’ and that ‘[i]t hurt.’” The court concluded that, viewing her “testimony in a light most favorable to the prosecution, a jury could have reasonably inferred that defendant’s penis intruded, however slightly, into [her] labia majora or vagina, which is sufficient to satisfy the ‘sexual penetration’ requirement of the statute.” While he asserted that the evidence was insufficient because there was “no DNA” corroborating penetration, pursuant to MCL 750.520h, a victim’s testimony “need not be corroborated in prosecutions under sections 520b to 520g.” As to defendant’s claim that his 45-year minimum sentences were disproportionate and unreasonable, they were within his applicable guidelines range of 171 to 570 months and thus, “may not be reviewed for reasonableness.” Further, he did not argue that there was an error in calculating his guidelines range or show “that the trial court relied on inaccurate information.” His contention that his minimum sentences were disproportionate based on his age (he was 33 years old when sentenced) “and that he will be at least 78 years old when he is eligible for parole” failed, as the court noted that a “trial court is not required to consider a defendant’s age in determining the proportionality of a sentence.” Finally, while the trial court did not provide a factual basis for the court costs it imposed, in light of Posey, the court concluded “that the assessment of $1,300 in court costs in this Wayne County Circuit case is consistent with the average cost of processing a case in that jurisdiction.”

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  e-Journal #: 74444

  Case: People v. Winans

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Ronayne Krause, Markey, and Borrello

  Issues:

  Sentencing; Scoring of OVs 3, 4, 7, 8, & 13; MCL 777.33(1)(d); Reliance on reasonable inferences from the record evidence; People v Earl; MCL 777.34(1)(a); MCL 777.37(1)(a); MCL 777.38(1)(a); MCL 777.43(1)(c) & (2)(a); Waiver; People v Kowalski; Ineffective assistance of counsel; Failure to make a futile objection; People v Savage

  Summary:

  The court held that defendant was not entitled to resentencing based on ineffective assistance of counsel given that the trial court properly assessed a total of 100 OV points, with the result that he would remain in OV level VI and his minimum guidelines range would not change. Thus, it affirmed his sentences of 67 to 120 months for AWIGBH and 100 to 180 months for unlawful imprisonment. He challenged the scoring of several OVs on appeal. The court noted he “waived his arguments when trial counsel indicated at sentencing that he had ‘no . . . additions, corrections, or deletions.’” But because he bootstrapped an ineffective assistance of counsel claim based on the failure to challenge the OV scoring, the court reviewed the scoring of OVs 3, 4, 7, 8, and 13. It concluded that the trial court did not err in scoring 10 points for OV 3. “Considering the nature and characteristics of the assault, the injuries suffered and described, and the fact that the police transported JK to the hospital for examination, it is reasonable to infer that JK ‘required’ medical treatment.” The court accepted the prosecution’s concession of error in the scoring of 10 points for OV 4. It upheld the 50-point score for OV 7, finding that “the record fully supported a conclusion that defendant treated JK with ‘excessive brutality’” and that his “conduct was designed to substantially increase JK’s fear and anxiety. While she was being restrained and viciously assaulted for an extended period of time through biting, punching, spitting, hair-pulling, and choking, defendant repeatedly threatened to kill JK. One can reasonably infer from this evidence that defendant’s conduct was designed to substantially increase JK’s fear and anxiety.” It also upheld the 15-point score for OV 8. The fact that they lived together did “not mean that there could be no asportation or that JK could not be held captive.” In addition, he held her down and brutally assaulted “her for at least 20 minutes, which was beyond the time necessary to commit unlawful imprisonment.” Finally, the trial court did not err in scoring 25 points for OV 13. In 2017 and 2018, defendant pled guilty to unlawful imprisonment, AWIGBH, and attempted AWIGBH, all of which “constituted offenses against a person.” Trial counsel was not ineffective for waiving challenges to properly scored OVs.

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  e-Journal #: 74505

  Case: United States v. Mahaffey

  Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )

  Judges: Griffin, Siler, and Clay

  Issues:

  Drug trafficking under 21 USC § 841; Proof that defendant knew the type or quantity of controlled substance involved in the offense; Effect of Rehaif v. United States on Sixth Circuit precedent; McFadden v. United States; United States v. Garcia; United States v. Dado; “Knowingly”; Dean v. United States; Criminal intent; United States v. X-Citement Video, Inc.

  Summary:

  The court held that the recent Supreme Court decision in Rehaif did not abrogate its prior holdings that a drug-trafficking conviction under § 841 “does not require proof that the defendant knew the type or quantity of controlled substance involved in the offense.” The government recovered 40 pounds of marijuana from defendant-Mahaffey at the airport. Inside the marijuana was four pounds of meth. It was not established at trial whether he knew that the meth was inside the marijuana packaging. A jury convicted him of conspiracy to possess with the intent to distribute meth, possession with the intent to distribute meth, and possession with the intent to distribute marijuana. He was sentenced to the mandatory minimum of 10 years. Without the meth, his statutory maximum sentence would have been no more than 5 years. Mahaffey argued that § 841 required the government to prove that he knew about the meth. But the court noted that courts “have consistently held that for drug-trafficking prosecutions under § 841, the government need not ‘prove mens rea as to the type and quantity of the drugs.’” The court rejected his argument that the recent Supreme Court decision in Rehaif changed this rule. It concluded that Rehaif considered the “knowing” requirement as it applied to unlawful aliens and firearm possession—a different area of the criminal code. But the court considered “whether Rehaif’s ‘legal reasoning is directly applicable to the issue at hand’ to ‘undercut’” its case precedent. It concluded that it did not, noting that case law “interpreting § 841 from the Supreme Court, our circuit, and our sister circuits confirms Congress did not intend a mens rea requirement for drug quantity and type.” Affirmed.

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• Election Law (1)

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  This summary also appears under Constitutional Law

  e-Journal #: 74572

  Case: League of Women Voters of MI v. Secretary of State

  Court: Michigan Supreme Court ( Opinion )

  Judges: Viviano, McCormack, Bernstein, and Cavanagh; Concurring in part, Concurring in the judgment in part, & Dissenting in part – Clement; Dissent – Markman and Zahra; Separate Dissent – Zahra and Markman

  Issues:

  Constitutional challenges to amendments of the Election Law (MCL 168.1 et seq); Geographic-distribution requirement; MCL 168.471; MCL 168.477; Checkbox requirement; MCL 168.482(7); Paid-circulator-affidavit requirement; MCL 168.482a; Motion to intervene; MCR 2.209(B); Justiciability; Federated Ins Co v Oakland Cnty Rd Comm’n; Mootness; Anway v Grand Rapids Ry Co; Personhood Nevada v Bristol (NV); Poulton v Cox (UT); Standing to seek a declaratory judgment; MCR 2.605; MCR 2.605(A)(1); Lansing Sch Educ Ass’n v Lansing Bd of Educ; Deleeuw v State Bd of Canvassers; Helmkamp v Livonia City Council; Legislative standing; Coleman v Miller

  Summary:

  Holding that the Legislature has standing to appeal when it intervenes in a case in which the Attorney General fails to defend a statute against constitutional attack, the court granted the Legislature’s motion to intervene in one of these consolidated cases. In addition, holding that this case was moot as to lead plaintiff-Michiganders for Fair and Transparent Elections (MFTE), and that none of the other plaintiffs had standing, it dismissed that case and vacated the constitutional holdings below. Finally, it held that because the lower courts’ decisions were vacated, the plaintiff-Legislature lacked standing to pursue its own case in the other matter. Plaintiffs-MFTE, League of Women Voters, and individuals (LWV plaintiffs) sought a declaration that recent amendments to the Election Law (procedures governing petition drives) were unconstitutional. The Legislature separately sued the Secretary of State seeking a declaration that they were constitutional. The Court of Claims held that the paid-circulator-affidavit requirement was constitutional, but that the geographic-distribution and checkbox requirements were not. The Court of Appeals affirmed as to the geographic-distribution and checkbox requirements, but reversed as to the affidavit requirement, finding it unconstitutional. The Legislature sought leave, and it also filed a motion to intervene in the LMV case. After the MFTE terminated its petition drive, the Supreme Court sought supplemental briefing on whether this mooted the LWV case as to MFTE, whether the remaining LWV plaintiffs had standing, and whether it should vacate the lower courts’ judgments. It first found that “when the Attorney General does not defend a statute against a constitutional challenge by private parties in court, the Legislature is aggrieved and, upon intervening, has standing to appeal.” As such, it had appellate standing in the LMV case. It next found that the case was moot as to MFTE, which did “not, at present, have anything at stake in this dispute.” The court then held that because the LWV plaintiffs did not meet the requirements of MCR 2.605, they did not have standing. “[N]othing in the relevant caselaw gives any voter standing to challenge any election-related laws at any time.” It further concluded that “the equitable considerations weigh in favor of vacating the lower-court decisions.” Finally, as to the Legislature’s case, it found that because any interest the Legislature may have had in the past had now dissipated, the matter was now moot “to the extent that any such interest could have justified standing” when the case was filed, and the Legislature “had no standing to pursue its case on the basis of the Attorney General opinion.”
  
  Justice Clement concurred in part, concurred in the judgment in part, and dissented in part, noting she did not believe the court “can avoid answering the question of whether the Legislature is entitled to maintain its action . . . and get a judgment on the merits.” As such, she agreed with the majority that the Legislature cannot maintain its action, but “would answer the question squarely rather than beating around the bush.”
  
  Justice Markman, joined by Justice Zahra, dissented, noting he “would deny the Legislature’s motion to intervene in the LWV case, hold that the Legislature has standing in its own case against the Secretary of State, and would resolve the substantive questions of law in the latter case[.]”
  
  Justice Zahra, joined by Justice Markman, also dissented, noting that because he was “not convinced that plaintiffs, the purported moving parties now seeking to have their own case declared moot, have satisfied the heavy burden required to demonstrate mootness,” he would not grant the “rare relief” granted by the majority.

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• Healthcare Law (1)

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  This summary also appears under Administrative Law

  e-Journal #: 74573

  Case: In re Jankowski, D.O.

  Court: Michigan Court of Appeals ( Published-After-Release Opinion )

  Judges: Per Curiam – Markey, Meter, and Gadola

  Issues:

  Suspension of respondent’s license to practice medicine; Violations of MCL 333.16221(a) (negligence or failure to exercise due care), MCL 333.16221(b)(i) (incompetence), MCL 333.16221(b)(vi) (lack of good moral character), & MCL 333.16221(c)(iv) (prescribing or administering drugs for other than lawful diagnostic or therapeutic purposes); Applicability of the 2016 CDC Guideline for Prescribing Opioids for Chronic Pain (CDC Guidelines) to pain management physicians as to prescribing pain medication; Negligence; Sillery v Board of Med; Whether the administrative law judge (ALJ) adopted the correct standard of care (SOC); “Good moral character”; MCL 33.8.41(1); Competent, material, & substantial evidence; Department of Cmty Health v Risch

  Summary:

  [This opinion was previously released as an unpublished opinion on 11/19/20.] Concluding that the Board of Osteopathic and Surgical Medicine Disciplinary Subcommittee could have found, using its own expertise, that the evidence showed respondent violated the Public Health Code, the court held that the “Board’s decision was supported by competent, material, and substantial evidence on the record.” Thus, it affirmed the Board’s final order that fined him $25,000 and suspended his medical license for three years based on its determination that he “violated MCL 333.16221(a) (negligence or failure to exercise due care), MCL 333.16221(b)(i) (incompetence), MCL 333.16221(b)(vi) (lack of good moral character), and MCL 333.16221(c)(iv) (prescribing or administering drugs for other than lawful diagnostic or therapeutic purposes)[.]” He argued that the 2016 CDC Guidelines and other literature cited by a witness (Dr. C) as the applicable SOC applied “to primary care physicians and not chronic pain management practitioners like respondent.” But the court found that the ALJ did not err by adopting those Guidelines as the relevant SOC. “Following his review of the record and testimony, the ALJ determined that respondent did not adequately justify concurrent prescriptions, did not adequately address the risk of abuse or diversion with patients, and failed to justify the high level of medications prescribed.” C’s testimony supported those conclusions. Further, the court noted that “a disciplinary subcommittee may rely on its own expertise in determining violations of the Public Health Code.” It disagreed with respondent’s claim that the final order was not supported by competent, material, and substantial evidence showing “he violated MCL 333.16221(a) or (b)(i) through negligence and incompetency because the record” supported that he exercised due care in treating “patients and in documenting the course of their care.” Rather, it determined that C’s testimony about concerns as to “respondent’s failure to adequately justify concurrent prescriptions, to address the risk of abuse or diversion with patients, and to justify changes and high levels of medications prescribed” together with the ALJ’s own conclusions constituted sufficient competent evidence establishing “that respondent violated MCL 333.16221(a) and (b)(i), so as to support the Subcommittee’s final order.”

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• Litigation (1)

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  This summary also appears under Attorneys

  e-Journal #: 74478

  Case: Owen v. Conto

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Cavanagh, Jansen, and Shapiro

  Issues:

  Case evaluation sanctions; Award of attorney fees in an amount greater than what defendants’ counsel was actually paid; A “reasonable attorney fee”; MCR 2.403(O)(6)(b); Cleary v Turning Point; Failure to hold an evidentiary hearing on the request for case evaluation sanctions; Effect of the trial court’s failure to follow the analysis required in Smith v Khouri

  Summary:

  The court held that the trial court did not abuse its discretion by awarding attorney fees in an amount greater than what defendants’ counsel was actually paid. It also did not abuse its discretion by failing to conduct an evidentiary hearing on defendants’ request for case evaluation sanctions. Finally, the trial court’s failure to specifically discuss any of the Smith factors in reaching its decision was harmless error under the specific circumstances of this case. As to plaintiff’s challenge to the amount awarded, the court noted that defendants’ “counsel billed for 765.7 hours. Using that number, the $115,000 award would calculate to a rate of just over $150 for all 765.7 hours, or $158.46 per hour with the removal of 40 hours for postverdict evaluations. Defendants’ motion for sanctions set forth the professional standing and experience of each of the attorneys who billed hours on the case and set forth a reasonable fee. In addition, attached to defendants’ amended bill of costs were” attorney affidavits “setting forth their qualifications and stating that the rates of $450 for senior partners, $350 for partners, and $200 for associates were reasonable.” There was no evidence to support plaintiff’s claim that $160 per hour or $115,000 was “an amount greater than either the amount actually charged or the amount the insurance company actually paid.” The court was “aware that some of the lack of evidence resulted from the trial court’s determination that plaintiff was not entitled to know the rates and total amount of attorney fees charged by defendants’ counsel and ultimately paid by the insurance company.” But these numbers were not required to decide a reasonable fee. The court noted that reasonable fees under MCR 2.403(O) “are not equivalent to the actual fees charged.” Thus, to the degree that there was “any record evidence to support that the trial court’s award of $115,000 was greater than the amount defendants’ counsel charged or received from the insurance company, that evidence is not sufficient, by itself, to justify a determination that the trial court abused its discretion.”

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• Real Property (1)

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  e-Journal #: 74475

  Case: Indiana MI Power Co. v. Community Mills, Inc.

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Ronayne Krause, Markey, and Borrello

  Issues:

  Interpretation & application of the Uniform Condemnation Procedures Act (UCPA) (MCL 213.51 et seq); MCL 213.55(1) & (3)(a); Good-faith written offer requirement; Indiana Michigan Power Company (IMPC)

  Summary:

  The court held that the trial court had subject-matter jurisdiction, concluding that defendant-Community Mills’ challenges to the written offer concerned whether plaintiff-IMPC “offered an amount that constituted just compensation and not whether it was made in good faith.” Thus, it reversed summary disposition for Community Mills under MCR 2.116(C)(4) and remanded. IMPC argued that the trial court erred in its interpretation and application of the UCPA. “The trial court ruled that it lacked subject-matter jurisdiction because IMPC failed to tender a good-faith written offer to obtain property interests across land owned by Community Mills.” However, the court held that “the deficiencies Community Mills complained of and found by the trial court did not reflect a failure to tender a good-faith written offer. Rather, the alleged deficiencies effectively pertained to ascertaining the proper amount of just compensation.” The court recognized that “there can be a fine line between an offer that is so unsubstantiated that it can be characterized as revealing a lack of good faith and an offer that is made in good faith but does not accurately reflect an amount that equates to just compensation.” But the record did not support a finding that IMPC tendered the written offer in bad faith. Also, “the trial court ruled that it could not entertain the condemnation action because it lacked subject-matter jurisdiction while at the same time the court effectively concluded that the written offer did not amount to just compensation because all aspects of the loss Community Mills might suffer were not considered. This is part of the determination to be made by the trier of fact during litigation, i.e., when jurisdiction is being exercised.”

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• School Law (1)

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  This summary also appears under Constitutional Law

  e-Journal #: 74570

  Case: Council of Orgs. & Others for Educ. About Parochiaid v. State of MI

  Court: Michigan Supreme Court ( Opinion )

  Judges: For Affirmance – Markman, Zahra, and Viviano; For Reversal – Cavanagh, McCormack, and Bernstein; Not Participating – Clement

  Issues:

  Constitutionality of MCL 388.1752b (reimbursement of nonpublic schools for costs of complying with state health, safety, & welfare mandates); Const 1963, art 8, § 2 (as amended by Proposal C); Advisory Opinion re Constitutionality of 1970 PA 100; Traverse City Sch Dist v Attorney Gen; In re Advisory Opinion re Constitutionality of 1974 PA 242

  Summary:

  Holding “that MCL 388.1752b does not violate Const 1963, art 8, § 2, as amended by Proposal C, because it does not appropriate funds for nonpublic-school educational services[,]” an evenly divided court affirmed the Court of Appeals judgment that the statute is constitutional, and remanded the case to the Court of Claims. The justices voting for affirmance concluded that the statute, which provides for reimbursement of nonpublic schools for costs of complying with state health, safety, and welfare mandates, was “in accordance with both the religion clauses of the First Amendment of our federal Constitution and Article 8, § 2, as amended by Proposal C in 1970, of” the Michigan Constitution. They found that reimbursement for such mandates was “permissible under Traverse City, which stated that public funds may constitutionally be appropriated to ‘provide for [nonpublic-school students’] physical health and safety,’ so long as such appropriations ‘only incidentally involve the operation of educating private school children’ and do not create an ‘excessive entanglement between church and state.’” They determined that nothing in the statute suggested “that public funds are to be appropriated for nonpublic-school educational services; rather, MCL 388.1752b(1) provides that public funds are to be appropriated only for ‘police power’ public services to which all educational institutions and all students are generally entitled.” Although they recognized that “Traverse City concerned the provision of health, safety, and welfare ‘services,’” while this case concerned providing “public funds directly to nonpublic schools for compliance with state health, safety, and welfare mandates[,]” they found there was “no principled difference in this regard because the auxiliary services permitted by Traverse City are substantively indistinguishable from the reimbursements permitted by MCL 388.1752b.”
  
  The justices voting for reversal concluded that MCL 388.1752b clearly violates article 8, § 2 of the Michigan Constitution, and that operation of this constitutional provision to prohibit funding of nonpublic schools through the statute did not raise federal constitutional concerns. Thus, they would “reverse the Court of Appeals, declare MCL 388.1752b unconstitutional, and prohibit funding under the statute.” They determined that the statute “appropriates general-fund monies for the specific purpose of providing that money directly to nonpublic schools, and only to nonpublic schools, to compensate those schools for costs incurred in adhering to this state’s general health, safety, and welfare laws. For a nonpublic school, or any other organization in Michigan, complying with general health, safety, and welfare laws is just a cost of doing business.” Further, they found that the payments called for by the statute “effectively function as payroll payments because the law reimburses nonpublic schools for the labor costs (based on the hours worked and the wage rate) of employing a person to ‘perform[] a task or tasks required to comply with a health, safety, or welfare requirement under a law or administrative rule of this state . . . .’” Determining that the justices voting for affirmance misapplied Traverse City, the justices voting for reversal concluded that “the aid provided to nonpublic schools by MCL 388.1752b is of a ‘direct’ nature. The legislation appropriates public monies for one specific purpose: to pay that money directly to nonpublic schools. None of this Court’s precedents permits such a result.”

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• Termination of Parental Rights (1)

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  e-Journal #: 74504

  Case: In re Rodriguez

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Swartzle, Beckering, and Gleicher

  Issues:

  Interlocutory appeal challenging children’s removal; MCR 3.965(C)(1) & (2); MCL 712A.13a(9); A “substantial risk” of physical harm; Whether “reasonable efforts” were required to prevent or eliminate the need for removal; Aggravated circumstances listed in the Child Protection Law; MCL 722.638(1) & (2)

  Summary:

  Concluding that the evidence established that respondent-mother’s children (E and G) faced a “substantial risk” of physical harm if kept in her custody during the child protective proceedings, the court held that the trial court did not clearly err in removing them from her care. It noted that she knew the children’s father (R) had physically abused E “when he was only seven months old, that he had been convicted of child abuse, and that a court had entered a no contact order against him” as to E. Despite this, she asked R to watch the two-month-old G. Further, she noticed G’s injuries after her stay with R “and did not seek medical treatment for the baby.” R broke G’s leg in two places, and “the baby had older, unexplained fractures in her arms that could have occurred while under respondent’s care.” Given the fact that a “no-contact order did not prevent respondent from placing her child in danger, there was no reason for a court to find that services or some ‘other arrangement except removal’ could ‘adequately safeguard’” the children. Continuing their residence in her “home was ‘contrary to [their] welfare’ as respondent had voluntarily allowed a known child abuser to care for” G. The trial court was also correct in determining “that ‘reasonable efforts’ were not required to ‘prevent or eliminate the need for removal’” here given that both children were “battered and physically abused by their putative father[.]” Finally, by placing them in licensed foster care, the trial court ensured that they “were placed in conditions ‘adequate to safeguard’ the children’s ‘health and welfare.’” R’s actions had injured them both “and respondent’s poor decisions could place both her children in danger in the future.” The trial court was correct that immediate action was needed to protect them both, not just G on the basis of the most recent incident.

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