Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Confirmation or vacatur of arbitration award; MCR 3.602; Kilpatrick v Lansing Cmty Coll; Waiver of standing challenge in arbitration; MCR 2.116(D)(4); Leite v Dow Chem Co; Review limited to facial legal error; Eppel v Eppel; Timeliness; MCR 3.602(J)
The court held that the trial court properly confirmed the arbitration award and did not err by denying defendants’ motion to vacate because they failed to show a material legal error apparent on the face of the award or that the arbitrator exceeded his powers. The dispute stemmed from a family land-contract transaction involving three parcels, later bankruptcy and foreclosure events, and a forfeiture action that the parties agreed to submit, along with multiple related cases, to arbitration under an agreement requiring the arbitrator to apply Michigan substantive law. After the arbitrator found defendants had not paid the balloon balance and set a redemption amount, they sought to vacate, arguing the award was procured by fraud and later asserting plaintiff lacked standing and the arbitrator lacked jurisdiction. They also challenged the arbitrator’s orders requiring payment into escrow and addressing how the deed would be handled. The arbitrator concluded defendants waived the standing challenge because they did not timely raise it by motion or as an affirmative defense, pursued a counterclaim, participated in the arbitration, and first raised standing more than a year after the initial award. He alternatively determined plaintiff had standing as a vendor to have her rights adjudicated. On appeal from the trial court’s subsequent confirmation judgment, the court reiterated that arbitration review is highly constrained, noting factual findings are not reviewable, and relief is available only when there is a legal error of such materiality that the arbitrator exceeded his authority and the error is readily apparent on the face of the award. The court rejected defendants’ “standing can be raised at any time” argument, explaining that the court rules have since been amended and now permit certain dispositive grounds to be raised “at any time” only subject to scheduling-order limits and trial-court discretion, making the arbitrator’s waiver determination consistent with Michigan law in the procedural posture presented. It also held that the escrow directive could not justify vacatur because, even assuming error, eliminating escrow would not yield “a substantially different award” where payment would still be required, and defendants similarly failed to identify a facial legal error in including the nonappealing vendee on the deed given the contract’s treatment of all vendees collectively as the “Purchaser” and the arbitrator’s recognition that contribution disputes were better addressed in the remaining quiet-title or partition proceedings. Affirmed.
Attorney fees under 42 USC § 1988; Calculation of the award; Whether the district court had discretion to award fees for work performed by plaintiff’s counsel in state-court takings proceedings & defendant’s bankruptcy; Webb v Board of Educ of Dyer Cnty; Pennsylvania v Delaware Valley Citizens’ Council for Clean Air; Award of “expert witness fees” under § 1988(c)
[This appeal was from the ED-MI.] The court vacated the district court’s attorney fee award in this takings case, holding that it erred by ruling that it had no discretion to award fees for work performed by plaintiff-HRT Enterprises’ counsel in state-court takings proceedings and in defendant-City of Detroit’s bankruptcy. It also erred by awarding plaintiff expert witness fees under § 1988(c). HRT requested $1,796,626.87 in attorney fees, but considering the “far from perfect” supporting billing records, the “district court ‘reduce[d] the lodestar in rough proportion to the observable incidence of disallowable fees’ by applying ‘a 33% discount against the gross number of compensable hours to account for the pervasive corruption of the billing records.’” This resulted in a final award of $720,486.25, including $40,906.25 in expert witness fees. The parties cross-appealed. As to the district court’s ruling on the award of attorney fees, the court noted that even though it has “held that fees for ‘a completely separate case’ are generally unrecoverable under § 1988[,]” case precedent provides “an exception for work performed in certain related proceedings.” The court concluded the “district court erred in failing to recognize this exception and to consider, in its discretion, whether work performed in the state-court takings proceedings and the bankruptcy could be awarded.” The court noted that “the state-court takings proceedings were not only useful and of a type ordinarily necessary to advance HRT’s federal takings claim—they were required under law. Accordingly, the district court had discretion to award fees for work performed in these proceedings under § 1988.” In addition, “HRT’s litigation in the bankruptcy was ‘crucial to the vindication’ of its Fifth Amendment right to full compensation.” Thus, the district court “had discretion to award fees under § 1988 for work performed in these proceedings, and it erred in concluding otherwise.” The court then considered whether the district court abused its discretion by awarding $40,906.25 in expert witness fees under § 1988(c). “Under the plain language of § 1988(c), expert fee-shifting is expressly allowed in actions or proceedings, but only those to enforce a provision of § 1981 or § 1981a. The statute does not reference § 1983[.]” Vacated and remanded.
Chapter 7; Settlement agreement approval; Bard v Sicherman (In re Bard) (Unpub 6th Cir); Whether appellant’s offer to purchase the estate’s assets would have served the interest of the main creditor; Accusations of bad faith; Memorandum of Understanding (MOU)
[This appeal was from the ED-MI.] The court held that the bankruptcy court did not err by approving a settlement agreement between the trustee of debtor-TAJ Graphics’ bankruptcy estate, the debtor’s owner (appellee-Kattula), and parties related to Kattula. The court concluded that the trustee’s ability to establish ownership rights in the claims at issue was “uncertain, diminishing the value of litigating as opposed to settling.” Appellant-Prime Financial, an unsecured creditor, made two loans to another entity owned by Kattula, K&B Capital, which were guaranteed by TAJ. TAJ previously filed a Chapter 11 bankruptcy, and a plan agreed to by the parties was confirmed. TAJ later filed a second Chapter 11 bankruptcy, which was converted to a Chapter 7. Prime Financial’s proof of claim stated that it had not been paid under the first bankruptcy. TAJ argued to the contrary. The bankruptcy court ruled that K&B’s payments to Prime Financial were payments on its own debt and not on TAJ’s debt to Prime Financial, and that Prime Financial still had $1,356,044.45 claim against TAJ. The TAJ bankruptcy estate held five disputed assets, including a 2006 assignment purporting to assign rights to an MOU. The Chapter 7 trustee moved for approval of a settlement under which “Kattula agreed to waive certain claims against the bankruptcy estate and pay $50,000 into the estate. Kattula would then take ownership of the estate’s interest in the five disputed assets.” Prime Financial objected. The IRS supported the settlement, and the bankruptcy court approved it. Applying the four-part test in Bard, and giving deference to the trustee’s decision to settle, the court held that “it was reasonable for the bankruptcy court to conclude that the uncertainty of the estate’s success in litigation greatly diminished the potential value of the estate’s assets.” The bankruptcy court also properly considered the difficulties arising from an attempt to collect funds, and reviewing the situation the trustee faced, reasonably “concluded that settlement was preferrable to yet more costly and lengthy litigation.” Further, considering the IRS’s claim, the court held that it was unlikely that rejecting the settlement would result in Prime Financial receiving any distribution. It also held that the bankruptcy court did not err by rejecting Prime Financial’s offer to purchase the estate’s assets as “not serving the interest of the main creditor[,]” the IRS, and found no error in the trustee’s evaluation of estate assets. Finally, it rejected Prime Financial’s “conclusory accusations of bad faith at Kattula, the trustee, and the IRS.” Thus, it affirmed the district court’s order affirming the bankruptcy court’s settlement order.
Standing; Unlawful seizure claim under state law & 42 USC § 1983; Jones v Powell; Effect of the loss of funds loaned for a bail bond; Challenge to the constitutionality of the police’s treatment of another individual; MCR 6.106; Distinguishing Barclae v Zarb
The court held that plaintiff “alleged sufficient facts to establish standing on” two counts of unlawful seizure. But the trial court properly found that he “lacked standing to challenge the constitutionality of the police’s treatment of” his pregnant girlfriend (M), “despite his loss of the bail bond funds and the subsequent dismissal of the charges against” M. Plaintiff argued “that he maintained standing to challenge his unlawful seizure by the Heinz defendants, and he sufficiently pleaded claims on this basis.” The court found that “the trial court erred in determining that plaintiff failed to raise any constitutional claims arising from his alleged ‘seizure,’ and in concluding that [his] action pertained solely to the arrest and prosecution of [M]. Plaintiff expressly asserted two causes of action challenging the validity of the ‘traffic stop’ in both his original complaint and his proposed amended complaint, consistently contending that the Heinz defendants lacked reasonable suspicion to stop him, whether the alleged constitutional violation was attributable to the officers’ individual conduct or” defendant-City’s failure to properly train its officers. He “further submitted body-worn camera videorecordings from the Heinz defendants, and he delineated the sequence of events underlying the purported traffic stop. In conjunction with his state constitutional claims,” he also pursued claims under § 1983 in his proposed amended complaint, alleging that the “City and Heinz defendants violated his constitutional right to be free from unreasonable seizures. Plaintiff did so after defendants asserted that he was barred from seeking monetary damages pursuant to” Jones, “and that § 1983 provided the proper vehicle for obtaining such relief—an assertion that is correct.” The court found that “the trial court did not substantively consider the merits of plaintiff’s claims concerning the alleged traffic stop; instead, it summarily concluded that [his] action pertained only to defendants’ purported conduct toward [M], despite the record indicating otherwise. Further, [it] did not address whether defendants’ affirmative defenses, such as qualified immunity, barred plaintiff’s claims, and ultimately asserted that plaintiff lacked standing to pursue the action under state law and” § 1983. Thus, it “erroneously awarded summary disposition on this basis.” As to plaintiff’s reliance on the fact that he was the person who loaned M funds to post her bail bond, the court found that had he “challenged an issue directly related to the bail bond—such as its initial issuance, the amount required, or changes to the court rules or statutes governing the bond—he may have presented a more persuasive argument.” But his claims were “entirely contingent on the police’s alleged improper investigation of [M’s] charges, which resulted in plaintiff having to provide funds for the bond.” Affirmed in part, reversed in part, and remanded.
Taking claim under the Fifth Amendment; Ripeness; Effect of the fact defendant had not made a “final decision” on condemnation; A sufficiently “final” set of facts; Res judicata & collateral estoppel; A constructive or de facto taking; Amen v City of Dearborn; Whether the district court erred by ruling that a taking occurred but leaving the exact date for the jury; Reliance on unsworn testimony at summary judgment; Harmless error; Bifurcation of triable issues; Right to a fair trial; Remittitur
[This appeal was from the ED-MI.] The court held that plaintiff-HRT Enterprises’ takings claim was ripe because it rested “on a sufficiently ‘final’ set of facts.” It concluded that “the permissible uses of HRT’s property are known to a reasonable degree of certainty,” and thus are not based on “purely hypothetical or future events.” HRT owned property near the Detroit airport. Because of its proximity, 20% of the property was in the runway’s “visibility zone.” HRT asserted that “because of the City, [it] is no longer able to use, lease, or sell the property.” HRT brought, and lost, two inverse condemnation cases in state court. Its first federal suit, brought in between the state court cases, was dismissed without prejudice for failure to exhaust state-law remedies. After it lost the second state court suit based on res judicata, HRT filed this case against the City alleging a de facto takings claim. The City filed a hybrid motion to dismiss and for summary judgment based on failure to exhaust, res judicata, and collateral estoppel. But the district court ruled that circumstances involving the property had changed since the state court litigation, and denied the motion. It granted HRT partial summary judgment on the existence of the taking without specifying when it occurred. After two trials, a jury found that the taking occurred on 1/1/09 and awarded HRT $1,976,820 in just compensation. The City appealed and HRT cross-appealed. The City argued that HRT’s claims were not ripe where the City had not reached a “final decision” that constituted a taking. The court disagreed. As the district court found, several things occurred after 2005, including “(1) HRT lost all its tenants; (2) vandals looted the property; (3) the City did not maintain the area; (4) others used it is a dumping ground;” and (5) “the City continued to purchase residential and commercial properties both within, and outside of,” the area near the airport. “These facts are not speculative. Based on this record, the City has taken a definitive position: it will not condemn the property.” As to res judicata and collateral estoppel, because “the district court reviewed a different period of time and a distinct set of facts, it did not err when it found it was not bound by the state-court decision. The takings claim HRT brought before the district court was not, and could not have been, resolved in the previous state-court proceedings.” As to the partial grant of summary judgment to HRT on liability, the court found that this case resembled Amen, and the “district court correctly concluded that the City’s activities amounted to a taking.” The court also rejected the City’s claim “that the district court erred when it granted partial summary judgment in favor of HRT without deciding when the taking occurred” Affirmed.
Privileged records; MCR 6.201(C); In camera review; People v Stanaway; Right to recross-examination; Proportionality challenge to a within-guidelines sentence; Restitution; Causal relationship requirement
The court affirmed defendant’s CSC I convictions and his sentence in part, but partially vacated the ordered restitution, and remanded to amend it “to remove the requirement that defendant reimburse the victim the cost of her vehicle.” He was sentenced to 15 to 50 years for each conviction. The key issue for purposes of the appeal was “whether defendant articulated a good-faith belief, grounded in articulable fact, of a reasonable probability that the requested records were likely to contain material information necessary to his defense.” The court concluded that he “failed to meet this standard. In his second motion for therapy and medical records, [he] requested that the court conduct an in camera review of the records[.]” His argument presented “a good-faith belief grounded in demonstrable fact that the records likely contain what defendant claims they do.” The problem for him was “that the information he sought in these records—that the victim did not disclose defendant’s abuse to her providers before 2018—was not material to his defense. This was a delayed-disclosure case, and the victim admitted that she never disclosed defendant’s abuse until 2018. Defendant did not need the victim’s privileged records to establish this fact or to cross-examine [her] about it. Because the information that defendant sought in the privileged records was already available to him, it was not material to his defense.” The court found that “the trial court properly denied defendant’s motion for in camera review of the victim’s privileged records.” Defendant next argued “that the trial court deprived him of his right to confront the witnesses against him when it denied his request to recross-examine” a detective. The court concluded that the trial “court did not plainly violate defendant’s confrontation right by prohibiting recross-examination.” Defendant next challenged his sentence, principally arguing that, in light of his advanced age, it was disproportionate. But, as the court “recently explained, the mere fact that a defendant will be of advanced age by the time he or she is eligible for parole ‘is insufficient to overcome the presumption of proportionality.’” Further, it concluded “that the trial court’s decision to sentence defendant to a maximum term-of-year sentence instead of a life sentence was proportionate and not an abuse of discretion.” Finally, the court held that the restitution order was “partially invalid because it compensates the victim for the loss of her vehicle, which was not part of the direct losses she sustained from defendant’s criminal conduct constituting the sentencing offense.”
Public-trial right; People v Davis; Flight instruction; People v Coleman; Ineffective assistance of counsel; Prior identification hearsay exception; MRE 801(d)(1)(C); People v Sykes; Prosecutorial error in rebuttal; People v Unger; Sentence proportionality; People v Posey
The court held that none of defendant’s claims warranted relief and affirmed his convictions and sentences for second-degree murder, FIP, and felony-firearm. The case arose from the shooting death of the victim at a residence known for meth use, with conflicting witness accounts identifying defendant as the shooter. On appeal, the court first addressed defendant’s public-trial claim arising from Covid-era spectator limits and streaming used in mid-2022. It held the trial court “erred by restricting public access,” but concluded the error was not “plain” because the parties “acquiesced” and the court treated streaming as “no different than if somebody had walked into the courtroom.” Defendant also failed to show prejudice for his ineffective assistance claim. The court rejected challenges to the flight instruction, explaining that “flight” includes “fleeing the scene,” “leaving the jurisdiction,” and “attempting to escape custody,” and the evidence supported an inference defendant tried to evade arrest. The court upheld admission of a detective’s testimony that a witness previously identified defendant, holding the statement was admissible under MRE 801(d)(1)(C) as “one of identification of a person made after perceiving the person.” The court found no prosecutorial error warranting relief because while some remarks “may have been improper on their face” they were responsive to defense counsel’s closing arguments and the jury was instructed that arguments are not evidence. Finally, the court held the within-guidelines murder sentence was presumed proportionate, he did not overcome that presumption, and “a proportionate sentence is not cruel or unusual.”
Sufficiency of the evidence; People v Nowack; Identity element; MCL 750.520b(1)(a); People v Yost; Motion for new trial; MCR 6.431(B); People v Lemmon; No duty to develop exculpatory evidence; People v Anstey
The court held that sufficient evidence supported defendant’s CSC I conviction and that the trial court did not abuse its discretion by denying his motion for a new trial. The victim, who was 11 at the time, testified that she awoke during a sleepover at defendant’s home to “pressure and a stinging sensation” in her vagina and described defendant touching inside her vagina with a “pushing” motion. She identified defendant immediately afterward to her mother, during a nurse examination, and in a forensic interview. On appeal, defendant challenged identity and characterized DNA evidence as exculpatory, but the court concluded the victim’s “clear and consistent testimony” identifying defendant was sufficient on its own to prove identity beyond a reasonable doubt and that credibility was for the jury. It explained the autosomal testing on one underwear sample’s sperm-cell fraction strongly supported that defendant was not a contributor to that particular male DNA, but other testing supported the prosecution (Y-STR testing on different samples produced a haplotype matching defendant’s haplotype, with testimony that an analyst would expect to examine about 3,062 males before seeing that haplotype again in the population), and the panel concluded the DNA evidence was not exonerating and did not undermine sufficiency. The court also upheld denial of a new trial where defendant argued the prosecution should have obtained DNA from defendant’s grandson to exclude defendant, holding this was “wholly, completely, totally speculation,” emphasizing there is “a crucial distinction between failing to disclose evidence that has been developed and failing to develop evidence in the first instance,” and that police and prosecutors have no constitutional duty to search for or develop potentially exculpatory evidence when the investigation did not provide a reasonable basis to obtain that additional sample. Affirmed.
Prosecutorial error; Closing argument; Ineffective assistance of counsel; Failure to request M Crim JI 7.23; Failure to interview & call additional witnesses; Trial strategy; Failure to present mitigating factors during sentencing; Prejudice
The court held that there was no prosecutorial error because the “prosecution made reasonable inferences” in closing argument. It also rejected defendant’s ineffective assistance of counsel claims, concluding “the jury instructions given adequately presented the theory of self-defense, trial counsel’s decision to not call other witnesses was a matter of strategy, and mitigating factors were presented to the trial court” at sentencing. Thus, it affirmed her conviction of second-degree murder arising from the stabbing death of her former boyfriend (G). “In its closing argument, the prosecution alleged that [G] had been running away from defendant—that he was ‘running for his life.’ This was a reasonable inference given the facts of the case. [G] had three superficial wounds: two on his right hand and one on his neck. According to the medical examiner, the wounds to his hand may have been defensive. [G’s] unopened box cutter, glasses, and keys were also scattered in various places across the lawn, suggesting that he chose to flee rather than to fight. With that evidence, and defendant going inside the house and coming back outside with a kitchen knife, it was reasonable to assert that [G] was fleeing from defendant when [she] stabbed him (as opposed to [G] being the aggressor, as suggested by defendant).” The court added that, even “if the prosecution’s inference was unreasonable,” it did not see any reversible error given the trial court’s curative jury instructions. The court also rejected her claim that her trial counsel was ineffective for failing to request M Crim JI 7.23, concluding that while the exact language of the instruction was not given, “the trial court fairly and sufficiently instructed the jury that it should consider how the circumstances may have appeared to defendant, factoring in her knowledge of victim’s past acts.” It was also “reasonable for trial counsel to make the strategic decision not to call additional witnesses about whether [G] had pointed a gun at defendant when it was agreed that [G] behaved violently towards [her] in the past.” And defendant failed to “explain what other mitigating factors were present that trial counsel should have investigated” to present at sentencing.
Ineffective assistance of counsel; Abandonment of a self-defense claim; Failure to object to M Crim JI 16.8 (voluntary manslaughter)
The court concluded that even if defense counsel had not abandoned the defense of self-defense, there was “not a reasonable probability that the jury would have accepted” it. The court also held that “defense counsel was not ineffective for failing to object to M Crim JI 16.8.” Defendant was convicted of second-degree murder. She contended that “defense counsel was ineffective in the way in which he raised and then abandoned the defense of self-defense at trial.” But the court found that it was “reasonable for defense counsel to adjust his strategy throughout the trial in response to changing circumstances. Although defense counsel’s strategy was not successful, that does not render his performance deficient.” The court added that, “even assuming that defense counsel’s performance in withdrawing the defense was deficient, defendant” did not establish “prejudice. Simply put, even had defense counsel not withdrawn the defense—and had advocated for its application—there is not a reasonable probability that the jury would have rendered a different verdict.” There was no evidence showing “that any of the elements of self-defense were satisfied. Defendant never testified, nor was there any evidence about her state of mind. Additionally, the evidence clearly established that the victim was an unarmed, 63-year old man. There was nothing to suggest that [he] posed a significant danger to then 20-year-old defendant or others, let alone that the circumstances made it ‘necessary’ to resort to lethal force.” In addition, “defendant was the initial aggressor.” The court also rejected her argument that the reading of both M Crim JI 16.8 and 16.9 “could have left the jury with the impression that it had to find both malice and the factors that negate malice to convict” her of the voluntary manslaughter lesser included offense. It noted that the “instructions do not use the word ‘malice’” and concluded that the “instructions when read together are not inconsistent.” The trial court did not err in providing both instructions. Affirmed.
Search & seizure; Motion to suppress evidence; Traffic stop by officers who did not personally witness the traffic infraction; MCL 257.742(1); Applicability of the exclusionary rule; People v Hawkins
The court held that even if defendant’s interpretation of MCL 257.742(1) was correct (which it did not decide), “exclusion of the evidence obtained during the resulting stop is not a remedy available to defendant for the statutory violation.” The case arose from a traffic stop of a vehicle in which he was a passenger. An officer observed the vehicle fail to “use a turn signal when it left a parking lot,” in violation of MCL 257.648. He relayed that information to two other officers who were in a marked police vehicle, and they conducted the stop. Defendant argued that any evidence seized as result of the stop must be suppressed because “MCL 257.742(1) prohibits an officer from stopping an individual for a traffic infraction that the officer did not personally” observe. The court concluded it did not need to address this argument because even if he was “correct, the exclusionary rule would not apply to evidence obtained as a result of such a statutory violation.” It noted that while he framed “his argument in constitutional terms,” he did not argue that the officers who stopped the vehicle “lacked probable cause to believe that a traffic infraction occurred. This is significant because if the officers had probable cause to believe that a traffic violation occurred, then the ensuing seizure was constitutionally permissible.” He did not contest the lower courts’ reasoning in support of their ruling that the stop was supported by probable cause. Whether exclusion was available as a remedy for the “perceived statutory violation depends on whether the Legislature intended for the exclusionary rule to apply to evidence obtained in violation of MCL 257.742(1).” Based on the clear statutory language, the court held “that the Legislature did not. Nothing in MCL 257.742(1)’s language suggests that . . . should an officer stop an individual for a traffic infraction that the officer did not personally witness, the Legislature intended for the exclusionary rule to apply to evidence obtained during the resulting stop.” Thus, the court affirmed the denial of defendant’s motion to suppress.
Motion to suppress; Search & seizure; Automobile exception; Reasonable suspicion to conduct an investigatory stop; People v Soulliere; Tip from an unknown individual; People v Pagano; Probable cause
The court concluded that the trial court did not clearly err in denying defendant-Maddox’s motion to suppress on a constitutional basis. He was convicted of delivery of a controlled substance (less than 50 grams), second or subsequent offense, possession of a controlled substance, and possession with intent to deliver a controlled substance (less than 50 grams), second or subsequent offense. Maddox argued “that the evidence recovered from his vehicle should have been suppressed because it was obtained pursuant to an unconstitutional search.” The first pertinent inquiry was “whether the police had reasonable suspicion to conduct an investigatory stop of Maddox.” The officers followed him “to the gas station, where they saw him engage in what they believed to be a hand-to-hand exchange, which based on their training and experience, led the police to believe they observed a drug transaction; thus, providing ample evidence to support a stop based on reasonable suspicion. This is considerably more evidence and corroboration than existed in Soulliere[.]” Maddox also argued “that the police did not properly corroborate the information in the tip.” The court found that the “police corroborated information from a tip received from a known individual, that described the suspect’s physical appearance, location, vehicle, and in the midst of conducting an undercover observation of the person they saw him participate in a suspected drug transaction, establishing reasonable suspicion and distinguishing this case from both Soulliere and Pagano.” The second relevant inquiry was “whether the totality of the circumstances established probable cause to conduct a warrantless search of Maddox’s vehicle. Not only did the officers witness what they believed to be a hand-to-hand transaction between Maddox and [P], but [P] also told the officer’s when stopped, that he had just purchased narcotics from Maddox providing ample probable cause.” The court found that “the police executed a valid stop via reasonable suspicion, and a valid search under the automobile exception, rendering suppression of the contested evidence unnecessary.” Affirmed.
Jury instruction; Mens rea; Free speech rights; Sufficiency of the evidence; CSC IV; Sexual contact; Great weight of the evidence
The court concluded that (1) the trial court did not err by omitting the mens rea element of the CSC IV offense from its jury instructions and (2) defendant-Smith “failed to show that the verdict was against the great weight of the evidence or that there was insufficient evidence to support his conviction” of CSC IV. Because Smith was charged with CSC IV, a general intent offense, the trial court was not required to provide a mens rea instruction, and its omission did not render the jury instructions deficient. The trial court properly instructed the jury on the elements of CSC IV, enabling the jurors to determine whether the alleged conduct constituted sexual contact accomplished through force or coercion, as required for a conviction under MCL 750.520e(1)(b). In light of the foregoing, the jury instructions, when viewed in their entirety, sufficiently protected Smith’s rights and fairly presented the issues to be tried. The court also rejected his argument that his inappropriate remarks to the “complainant and other venue employees constituted protected speech under the First Amendment and were improperly used to establish that he intentionally touched complainant’s breast for a sexual purpose.” It found the prosecution’s use of his statements plainly fell within the bounds of permissible use. It noted the “statements were used as evidence of his intent in touching complainant for a sexual purpose, and Smith does not contend that their admission otherwise breached the Michigan Rules of Evidence.” As such, Smith’s free speech rights were not violated.
Unlawfully present individuals possessing a firearm (18 USC § 922(g)(5)(A)); Facial & as-applied challenges based on the Second Amendment; United States ex rel Turner v Williams; Whether the firearm regulation at issue was consistent with the nation’s “historical tradition” of firearm regulation; New York State Rifle & Pistol Ass’n v Bruen
The court held that the Second Amendment’s reference to the right of “the people” to bear arms encompasses unlawfully present individuals who have “sufficient connections to the national community[.]” But because unlawfully present individuals such as defendant-Escobar-Temal’s “ status inherently lacks a relationship with the United States government[,]” his facial and as-applied challenges to his conviction under § 922(g)(5)(A) failed. He entered this country illegally from Guatemala. After his motion to dismiss based on the Second Amendment was denied, he pled guilty to violating § 922(g)(5)(A), which prohibits unlawfully present individuals from possessing a firearm. He argued that the Second Amendment’s reference to “the people” would encompass unlawfully present individuals, and that § 922(g)(5)(A) is unconstitutional facially and as applied to him. The court first noted that the right to bear arms is not “unlimited.” Applying the Bruen framework, it noted that its “precedent suggests that those who have developed sufficient connections to this country include at least some unlawfully present individuals.” It held that “[a] historical analysis of ‘the people’ confirms that the term includes U.S. citizens as well as those with sufficient connections to the country that they are considered part of the national community.” Examining Escobar-Temal’s connections, the court noted that “he was part of the national community given that he voluntarily moved here, has no criminal convictions, held a job, and established a family.” Thus, it concluded that the Second Amendment applied. But it also considered the history and tradition supporting the disarming of “noncitizens and other political or demographic groups seen as lacking a regulable relationship to the government.” It concluded that “allowing unlawfully present individuals to be armed could be dangerous because such individuals can more easily circumvent important firearm safety laws. That rationale is well founded in the nation’s history and tradition of firearms regulation.” Thus, his facial challenge failed. He also claimed that the statute should not apply to him where “he is not individually dangerous.” The court again returned to the history that supported the “conception of the relationship with the state as a litmus test that applies even to law-abiding nonviolent individuals.” Although Escobar-Temal may not be dangerous, “his lack of relationship with the government as an unlawfully present individual renders it reasonable for the government to disarm him in the same way that, in 1777, it could disarm a peaceable Quaker or loyalist.” Affirmed.
Use of broad terms in a FOIA request; Requirement that a request be sufficiently descriptive; Herald Co v Bay City; Whether disclosure was prohibited by MCL 15.243(1)(v) (records relating to a civil action in which the requesting party & the public body are parties); Taylor v Lansing Bd of Water & Light
Noting “there is no ban on the use of broad terms” in a FOIA request, the court held that plaintiffs’ “request was sufficient to allow a public body to know which records were being requested.” It further rejected defendants’ assertion that MCL 15.243(1)(v) prohibited disclosure here, concluding that plaintiff-ACLU was not a party in a separate case against defendant-city. Thus, it reversed the trial court’s order granting defendants summary disposition and remanded for entry of summary disposition for plaintiffs. Defendants’ denial of plaintiffs’ FOIA request was based “on the request being ‘overly broad, vague, and ambiguous’ because of the use of the words ‘any,’ ‘anytime,’ and ‘in any way.’ Defendants claimed that these words ‘individually or in compound form request information which asks for one, some, or all indiscriminately.’ They further asserted that because the FOIA requires a requestor to sufficiently describe the record which is sought, the requestor may not use broad terms. Defendants are incorrect.” The court noted that all “that is required is that the request must be ‘sufficiently descriptive to allow the public body to find public records containing the information sought.’” It found that the intent of the request appeared “amply clear. The request was for documents that relate, even minimally, to allegations or findings that police officers engaged in racial profiling, racial discrimination, harassment, or excessive force. How this request was deemed incomprehensible is mystifying.” It further noted that defendants did not adequately explain on appeal “how or why the request was indiscernible.” As to the applicability of MCL 15.243(1)(v), defendants’ contention “that the ACLU should be treated as a party in the Bryant federal litigation—because it is the plaintiffs’ agent in that case—is foreclosed by” the court’s decision in Taylor. Thus, the trial court erred in denying plaintiffs’ summary disposition motion and granting defendants’ summary disposition motion.
Second motion to reopen removal proceedings; 8 USC § 1229a(c)(7)(A); 8 CFR § 1003.23(b)(1); Claim the Immigration Judge (IJ) erred in applying the “number-bar rule” analysis; Whether the court had jurisdiction; Failure to exhaust administrative remedies; § 1252(d); The Board of Immigration Appeals’ (BIA) decision not to reopen the proceedings sua sponte; § 1003.2(a); Administrative Procedures Act (APA); 5 USC § 701(a)(2)
The court denied in part petitioner-Herrera’s petition for review of the denial of her second motion to reopen removal proceedings where she failed to exhaust her number-bar challenge. And it dismissed in part because it lacked jurisdiction over the BIA’s decision not to reopen the proceedings sua sponte. Herrera was ordered removed to Guatemala. She moved to reopen proceedings, arguing that she lacked notice of the original removal hearing. Her request was denied when she failed to respond to an IJ’s request for more information. Nearly 10 years later, she filed a second motion to reopen based on the same lack of notice. “The IJ denied her motion as number barred.” The BIA dismissed her appeal and declined to sua sponte reopen the proceedings. As to Herrera’s argument that the IJ erred when applying the number-bar rule, her BIA “brief did not contest the IJ’s number-bar ruling.” As a result of that, she failed to exhaust this challenge and that precluded the court from reviewing this argument. Herrera also argued that the BIA erred by failing to consider her “exceptional circumstances” when refusing to sua sponte reopen proceedings. The court explained that it “generally lack jurisdiction to review the Board’s denial of sua sponte reopening.” Because it was within the BIA’s “unfettered” discretionary authority whether to reopen sua sponte, this matter was not subject to judicial review. And the court determined that Herrera’s arguments did not “support treating her case as an exception to” the no-review rule. It also rejected her argument that her Fifth Amendment right to due process was violated because the BIA’s decision was only “cursory,” holding that once “the Board explained the ‘basis on which it decided against’ Herrera, it ‘owed no duty’ to examine Herrera’s alternative arguments ‘for sake of completeness.’”
Uninsured motorist (UM) benefits; Effect of plaintiff’s inability to serve & join the other driver involved in the accident as a party; Voluntary dismissal; MCR 2.504(A)(1)(a); MCR 2.102(E)(1) (action was deemed dismissed without prejudice when a party was not served with process); Whether plaintiff could establish the other driver’s liability without him being a named party
Holding that the absence of the other driver involved in the accident (defendant-Young) due to an inability to serve him did not bar plaintiff’s UM benefits claim against defendant-insurer, the court reversed summary disposition for the insurer and remanded. A car driven by Young rear-ended plaintiff’s vehicle. She asserted claims “for negligence against Young and for UM benefits against defendant.” She obtained a second summons after unsuccessful efforts to serve Young but was unable to perfect service on him before it expired. Almost a year later, she voluntarily dismissed her claims against him. Defendant then successfully moved for summary disposition on the basis “plaintiff’s claim for UM benefits failed as a matter of law because [she] could not prove fault when the alleged at-fault driver (i.e., Young) was no longer a party to the case.” She argued on appeal that Young’s dismissal had no effect on her ability to establish “her UM benefits claim against defendant.” The court agreed. “Under MCR 2.102(E)(1), the action was deemed dismissed without prejudice as to Young when he was not served with process by [3/1/23]. The clerk was required to examine the records and enter an order dismissing the action as to Young.” The claim against him did not continue after 3/1/23, “because the clerk’s failure to enter a dismissal did not continue the action.” Thus, plaintiff’s later voluntary dismissal as to Young “had no effect on the case against [him]; and because Young had not submitted to the trial court’s jurisdiction as required under the court rules, the trial court’s reliance on MCR 2.504(A)(1)(a) was misplaced. Therefore, because the action against Young was not voluntarily dismissed under MCR 2.504(A)(1)(b), there was no adjudication on the merits of [his] fault[.]” The court further concluded that “plaintiff can establish under Michigan law that Young is liable for her injuries without him being a named party.” The policy language was unambiguous and did not require her to “first bring a successful claim against the uninsured motorist or that the uninsured motorist must be a party to the action. Rather, the policy only requires plaintiff to establish she is ‘legally entitled to recover damages’ from Young.” Even if he cannot be located to testify, she can establish his “fault with other evidence, including her own testimony.”
Auto negligence; Governmental immunity; Motor-vehicle exception; Proper use of a turn signal; Gross negligence
The court affirmed in part, reversed in part, and remanded for entry of an order granting summary disposition as to the claim against defendant-Dodd (a bus driver for defendant-city) individually because that claim was barred by governmental immunity where there was no evidence his conduct amounted to gross negligence. The case arose out of a collision between the bus driven by Dodd and a semi-truck. Turning first to the claim against the city, the issue on appeal, as framed by the parties, was “whether the trial court correctly determined that there was a genuine question of material fact regarding whether Dodd was negligent in his operation of the city bus for purposes of MCL 691.1405.” The question became “whether an improper use of a turn signal contrary to the driver’s actual direction of travel, if established as true, could constitute negligence. As an initial matter, even assuming that Dodd had the statutory right of way as the through driver pursuant to the traffic signal controlling the intersection, and acknowledging that he was ‘entitled to assume that subordinate drivers will yield him the right of way’ and was ‘not bound to anticipate unlawful or negligent acts on their part,’ the ‘favored driver’ nonetheless ‘is not permitted to lower his head, close his eyes, and charge blindly through intersections on the theory that such is his “right” simply because he is the favored driver.’” In addition, “because a motorist always has a duty to exercise reasonable care in the course of driving, . . . and because penal statutes in the motor vehicle code are not the sole or de facto source for defining the standard of care applicable to motorists,” the city and Dodd were “incorrect in their assertion that Dodd could not have been negligent merely because there is no statute specifically prohibiting the action of driving straight through an intersection with a turn signal engaged.” Thus, they did not “show that there is no evidence, when viewed in the light most favorable to the nonmoving party, from which a trier of fact could reasonably conclude that Dodd was negligent, and” they did not establish that the trial court erred by denying summary disposition as to the claim against the city. As to the claim against Dodd individually, there was no record “evidence from which a trier of fact could reasonably conclude that Dodd recklessly or willfully disregarded precautions in a manner showing a substantial lack of care or concern for the safety of others.”
Auto negligence; Comparative fault exceeding 50%; MCL 500.3135(2); Lamp v Reynolds; Summary disposition under No-Fault Act; MCR 2.116(C)(10); Maiden v Rozwood; Failure to signal left turn; MCL 257.648(1); McDuffie v Neal
The court held that the trial court erred by granting summary disposition because genuine issues of material fact existed as to whether defendants were more than 50% at fault for the motorcycle accident, so it vacated and remanded. Plaintiff was injured when he attempted to pass defendant’s flat-bed truck at an intersection as the truck slowed to make a left turn, and the collision occurred when the truck turned left across plaintiff’s path. The trial court concluded that plaintiff was more than 50% at fault as a matter of law based on speeding, attempting to pass, and allegedly knowing the truck was slowing to turn, and therefore barred from recovery under the no-fault comparative-fault provision. On appeal, the court emphasized that comparative negligence is ordinarily a jury question and that summary disposition is improper unless no reasonable juror could find the defendant more at fault. The panel explained that, while evidence supported an inference that plaintiff acted negligently by speeding and attempting to pass, the record also supported a contrary inference that defendant failed to ensure the turn could be made safely and failed to signal the left turn with functioning lights. Multiple witnesses did not observe a left-turn signal, defendant acknowledged at the scene that the hi-lo’s lights were not working, and post-accident inspection showed the lights were loose or disconnected. The court concluded that, viewing the evidence in the light most favorable to plaintiff, reasonable minds could differ as to which driver bore greater responsibility for the crash, and therefore the statutory bar for being more than 50% at fault could not be decided as a matter of law. Because these factual disputes precluded summary disposition, the judgment was vacated and the case remanded for further proceedings.