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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Highway by user; MCL 221.20; MCL 221.20a; Donaldson v Alcona Cnty Bd of Cnty Rd Comm’rs; Standing; First Amendment retaliation; 42 USC § 1983; Hornbeak-Denton v Myers (Unpub 6th Cir); Causation; Qualified immunity; Clearly established constitutional rights
The court held that plaintiffs had standing to bring a highway by user “claim, and that the trial court prematurely decided whether plaintiffs could ‘force’” defendant-city to accept a road as public. Thus, it vacated the trial court’s order granting defendants summary disposition of plaintiffs’ highway-by-user claim and remanded. But it affirmed the dismissal of plaintiffs’ First Amendment retaliation claim under § 1983. “Plaintiffs own homes adjacent to Lakewood Drive, a short dead-end road in Battle Creek.” They argued that “the city could not discontinue maintenance and repair work on Lakewood Drive, even though public records show the road was abandoned by the” county road commission in 1965. Plaintiffs “invoked the highway-by-user statute, MCL 221.20. The trial court held that [they] had standing to sue, but that the statute could not be used by private parties to compel a governmental unit to ‘accept’ a road as public.” The question on appeal was “not whether plaintiffs can establish their claim on the merits, as the trial court never reached that issue. Nor can there be any doubt that plaintiffs have standing to bring this claim, as Donaldson . . . held that similar homeowners had a sufficient personal stake, unique from that of the general public, to have standing[.]” The court noted that “what the trial court relied upon from Donaldson, and what the parties continue to spar over on appeal, is a closing footnote that put into question whether the highway-by-user statute is available for private individuals to sue the government to have a private road declared public.” The footnote questioned “whether the highway-by-user statute could apply in a case seeking to force a government agency to accept a road as a public highway[.]” The court concluded “that the trial court erred by granting defendants summary disposition on this basis, and at this stage, pursuant to MCR 2.116(C)(8).” As to plaintiffs’ First Amendment retaliation claims against Battle Creek and defendants-City Attorney (Steele) and City Manager (Fleury), the court held that the contents of the letters plaintiffs relied on did “not support a First Amendment violation.” Defendants “acted under color of law in their interactions with plaintiffs” and plaintiffs’ “conduct was protected by the Petition Clause of the First Amendment.” But as to the second element, plaintiffs “failed to establish an issue of fact as to whether [Steele] took adverse action against them” where she simply apprised them “of the city’s legal position and what actions the city may have to take if Lakewood Drive became a public highway[.]” As to Fleury, the court found that “plaintiffs sufficiently established a factual dispute on their” claim. But they did not “sufficiently plead that their asserted constitutional rights were clearly established. Fleury was therefore entitled to qualified immunity from” the claim.
Sentencing; Scoring of OV 19; MCL 777.49(c); “Interfere with the administration of justice”; People v Hershey; People v Sours; People v Taamneh (Unpub)
Holding that defendant-Gay’s suicide attempt was an improper basis for scoring 10 points for OV 19, the court vacated his sentence and remanded for resentencing. He tried to take his own life while at home awaiting sentencing after he pled no contest to CSC III. He argued on appeal “that OV 19 should have been scored at zero points, which would reduce his total OV score from 80 points to 70 points, and alter his minimum” guidelines range. The court agreed, concluding that, under the circumstances here, he “did not, by attempting suicide, ‘come into opposition’ with the justice system or even attempt to. Rather, he tried to remove himself from it entirely by way of death. Gay’s behavior is categorically different than other scorable conduct such as” described in Hershey. The court noted that it previously addressed the exact same issue in Taamneh, where “the defendant attempted suicide on the day the jury’s verdict was to be received.” It ruled there “‘that the suicide attempts were not a proper basis to score OV 19,’ noting that ‘by all accounts, the suicide attempts were genuine attempts to end his life and not directed at delaying proceedings.’” The court found no basis to conclude otherwise here, “or to reach a different result in the circumstances of this case.” And because the OV 19 scoring increased his guidelines range, he was entitled to resentencing.
Hearsay; MRE 801 & MRE 802; People v Chambers; Right of confrontation; People v Dendel (On Second Remand); Ineffective assistance of counsel
The court held that the challenged officer testimony was not inadmissible hearsay, did not violate defendant’s right of confrontation, and counsel was not ineffective. He was convicted of first-degree premeditated murder, FIP, CCW, and felony-firearm (second offense) arising from the fatal shooting of the victim outside a residence after he traveled from Flint to Detroit with a driver who later testified that he saw him shoot the victim. The trial court sentenced defendant to life imprisonment for the murder conviction and lesser concurrent and consecutive sentences for the remaining convictions. On appeal, the court held that the officer’s testimony about what three scene witnesses reported was properly admitted because the statements were offered “not for their truth, but rather, to show what the police did after receiving the information,” and “[a] statement offered to show why police officers acted as they did is not hearsay.” On appeal, the court also held there was no violation of his confrontation right because “the Confrontation Clause does not bar the use of out-of-court testimonial statements for purposes other than establishing the truth of the matter asserted,” and the testimony was used to explain investigative steps rather than prove the truth of the witnesses’ descriptions. The court also found that defendant failed to establish ineffective assistance based on alleged lack of preparation because, even assuming deficiency, “there is no indication of a reasonable probability that the alleged errors affected the outcome,” given the “most damaging evidence” was the driver’s eyewitness account that he saw defendant with a gun immediately after the shots, corroborated by phone-location evidence. Affirmed.
Ineffective assistance of counsel; Failure to share audio footage; People v Pennington; Strickland v Washington
Concluding that defendant was not denied the effective assistance of counsel, the court affirmed. She was convicted of felony-firearm. She contended “trial counsel failed to inform her of all the evidence against her, namely the audio portion of the Ring video, which prevented her from making an informed decision regarding the plea offer.” The court found that as “in Pennington, trial counsel’s alleged failure to show defendant the footage of the incident with the audio does not necessarily indicate ineffective assistance.” The record established she “viewed the video at the preliminary examination without the audio.” Although it was “difficult to hear what defendant was saying in the video, [a witness] testified about what defendant said at the preliminary examination and at trial. Defendant does not deny she was present and in the video, demonstrating her firsthand knowledge of the encounter.” Finally, as the trial court found, “the audio was relevant but not material because the elements for felonious assault and felony-firearm could be established solely by the visual footage. Defendant’s claim she did not have access to all the evidence because trial counsel allegedly never revealed the video with the audio ignores several instances where defendant was presented with that information, but still maintained her refusal of the plea offer.” The court concluded that defendant, “possessing full knowledge of the evidentiary record and potential consequences, elected to proceed to trial notwithstanding counsel’s contrary recommendation. This decision reflects not a deficiency in counsel’s representation, but rather appellant’s informed—albeit subsequently regretted—rejection of the negotiated plea agreement.” The record contained “no evidence suggesting that trial counsel’s performance fell below the objective standard of reasonableness required under Strickland.” The court found that as “the trial court correctly observed, defendant has demonstrated nothing more than post-conviction regret for rejecting the plea offer.”
Sentencing; “Loss calculation”; USSG § 2B1.1; Application of USSG Application Note 3(E)(v) to calculate the “street price” for counterfeit pills; § 2B1.1, cmt n3(E); Whether Loper Bright Enters v Raimondo prohibited the district court from relying on § 2B1.1’s commentary; United States v Prather; Auer v Robbins; Whether (II) & (III) of 3(E)(v) properly applied to defendant’s conduct; The “rule of lenity”; Application of the “10 or more victims or mass-marketing” enhancement under § 2B1.1(b)(2)(A); Application of the two-level enhancement for an offense involving “the conscious or reckless risk of death or serious bodily injury”; § 2B1.1(b)(16)(A)
The court held that the district court properly applied USSG Application Note 3(E)(v) to calculate loss when sentencing defendant-Wala for drug counterfeiting and conspiracy where the “relevant market” for calculating loss was the street market price the end-user paid and not the estimated loss to the drug manufacturers. It also upheld the application of the enhancements under §§ 2B1.1(b)(2)(A) and (b)(16)(A). Wala pled guilty to conspiracy and substantive counterfeiting for manufacturing and selling “16.1 million counterfeit alprazolam pills on the dark web over a five-year period.” At sentencing, the parties disputed the method for calculating loss. The district court agreed with the government that the relevant market was the “‘illicit market, the street market,’” and that the price the end-user paid was the “appropriate measure” for calculating loss. It applied the definition of “loss” from Application Note 3(E)(v), estimating the street price at $2 per pill. Wala challenged the calculation and the enhancements for 10 or more victims or mass-marketing and the conscious or reckless risk of death or serious bodily injury. He claimed the district court erred by applying Application Note 3(E)(v) instead of the Guidelines’ general definition for loss. The court explained that 3(E) instructs a court to apply “special rules” when assessing loss “in certain cases, including when the defendant’s offense involved an ‘[u]nlawful [m]isrepresentation [s]cheme[].’” The district court “found that Wala triggered subsections (II) and (III)” of Note 3(E)(v). The court rejected Wala’s argument that the Supreme Court’s decision in Loper cast doubt on deference to the Guidelines Commentary, citing Prather, where the court held that Loper had not overruled Auer deference. As to his “zone of ambiguity” argument, it noted there was a lack of “binding case law” supporting Wala’s argument, precluding him from establishing plain error. His argument that (II) and (III) of Application Note 3(E)(v) did not apply to his conduct likewise failed, as did his invocation of the rule of lenity. The court affirmed the district court’s loss amount calculation. It also affirmed the enhancement under § 2B1.1(b)(2)(A), holding that “a victim includes any person who bought Wala’s counterfeit pills under the wrongful impression that they were purchasing legitimate alprazolam pills.” As to the § 2B1.1(b)(16)(A) enhancement, “the district court correctly concluded that Wala’s offense involved a risk of death or seriously bodily injury, and that Wala was aware of and consciously or recklessly disregarded these risks.”
Nursing malpractice; Expert testimony requirement; Common-knowledge exception; Elher v Misra; Hospital vicarious liability; Cox v Flint Bd of Hosp Managers; Cause in fact; Craig v Oakwood Hosp; Res ipsa loquitur; Woodard v Custer; Abandonment on appeal; Certified registered nurse anesthetist (CRNA); Standard of care (SOC)
The court held that plaintiff failed to create a genuine issue of material fact on the nursing-malpractice/vicarious-liability claim against defendant-hospital and the malpractice claim against defendant-CRNA Ford, but did create a genuine issue of material fact on malpractice against defendant-Dr. Hsu, requiring partial reversal. Plaintiff alleged he suffered a severe median nerve injury to his left arm during an elective, robotically assisted bariatric surgery that lasted nearly six hours while his left arm was positioned on an arm board and monitored intraoperatively. The trial court granted defendants’ motions for summary disposition. On appeal, the court held that the hospital was entitled to summary disposition on the nursing-malpractice/vicarious-liability theory because plaintiff’s RN expert “failed to identify any act or omission by the nurses constituting a breach of the” SOC. Further, plaintiff “did not take the depositions of the nonparty nurses,” and without evidence that “any specific nurse breached the applicable” SOC, the hospital could not be vicariously liable. The court also found plaintiff’s incomplete-discovery argument unavailing because discovery had closed, he did not depose the nurses while it was open, and “‘[m]ere speculation that additional discovery may uncover supporting evidence’” was insufficient. But the court held the trial court erred by dismissing the malpractice claim against Dr. Hsu because it “completely disregard[ed]” expert testimony that the injury “do[es] not occur absent improper positioning coupled with failure to detect such malposition through appropriate periodic physical assessments,” including testimony that visual observation alone was inadequate and the injury “would not have occurred had a proper intraoperative assessment been performed.” The court also found plaintiff raised a triable causation issue through res ipsa loquitur, noting the doctrine “‘entitles a plaintiff to a permissible inference of negligence from circumstantial evidence’” and concluding plaintiff “submitted facts, which, if believed, would establish all four elements of the doctrine of res ipsa loquitur.” The court next found dismissal of CRNA Ford proper because plaintiff “failed to proffer admissible expert testimony establishing Ford’s breach of the applicable” SOC, and did not “cogently articulate how the trial court erred” as to this claim. Affirmed in part, reversed in part, and remanded.
Reasonable reunification efforts; MCL 712A.19a(2)(a); Aggravated circumstances; MCL 722.638; MCL 712.A19b(4); Suspension of parenting time; MCL 712A.13a(13)
The court was “not left with a definite and firm conviction that the trial court’s decision to excuse [the DHHS] from making reasonable efforts toward reunification between the” child and respondent-father was erroneous. The record supported “the trial court’s determination that clear and convincing evidence was presented that aggravated circumstances existed under MCL 712A.19a(2)(a) and MCL 722.638.” Also, the court found “no abuse of discretion in the suspension of parenting time.” It noted that “when entering its original order directing [the DHHS] not to offer respondent services with a goal toward reunification, the trial court referenced [his] prior convictions and history involving criminal sexual conduct with minors. Specifically, [it] stated that reasonable efforts were not required for [him] because ‘he subjected a prior child to a CSC as provided in MCL 722.638(1) and (2) as evidenced by the termination [of rights to] that child due to the CSC allegation.’” The trial court also referred to respondent’s two CSC III convictions. “These findings were sufficient to authorize the trial court to find that aggravated circumstances existed under MCL 712A.19a(2)(a).” The court noted that respondent “denied any sexual misconduct on his part throughout the termination hearing. However, the trial court found that his guilty plea and his no contest plea to sexual abuse allegations involved similar acts of sexual misconduct against young children were more compelling than his testimony. We defer to the trial court’s ability to weigh the evidence presented and to [its] factual findings that are not clearly erroneous.” Further, respondent’s claim “that he would have participated in services had they been provided is not supported by the factual record.” To the contrary, he “was told numerous times that he could independently seek referrals from [the DHHS] for services that included housing assistance.” Despite this, he “failed to reach out for assistance and was unable to be contacted despite reasonable efforts on the part of the foster care worker assigned to the child’s case. Respondent’s living situation was not congenial to the care for the minor child as respondent admitted he was homeless and had no income because he was incarcerated.” Affirmed.
Children’s best interests; Witness testimony; Procedural due process; MCR 3.920(B)(3)’s notice provisions; The Fifth Amendment privilege against self-incrimination; In re Blakeman; Compulsion; Confrontation rights; Sufficiency of the trial court’s factual findings; MCL 712A.19b(1); Relative placement consideration; Child Protective Services (CPS)
The court rejected respondent-father’s due process, Fifth Amendment privilege, and right of confrontation claims, and held that the trial court made sufficient factual findings to support its ruling that terminating his parental rights was in the children’s best interests. One of the children’s twin, who was 35 days old, was pronounced dead after arriving at a hospital. Both twins were malnourished and the deceased child had a subdural hematoma and fractures that were “deemed ‘highly suggestive of abusive head trauma.’” Respondent pled no-contest to both jurisdictional and statutory grounds for termination based on a CPS investigation report. He argued “the trial court violated his procedural due process rights under the Fourteenth Amendment by admitting witness testimony at the dispositional hearing that exceeded the factual basis underlying his no-contest plea as set forth in the” report. But the court concluded that the “notice provisions of MCR 3.920(B)(3) satisfied [his] procedural due process rights. [He] received adequate notice and availed himself of the opportunity to be heard: he appeared at the dispositional hearing before the referee, was represented by counsel who received the dispositional report and interposed no objection to its admission subject to cross-examination, and conducted thorough cross-examination of” the DHHS’s witnesses. The court found no merit to his claim that the “witness testimony rendered him ‘unable to prepare for the evidence presented after his no contest plea . . . .’” Further, even assuming the testimony was inflammatory as he claimed, “such testimony alone is insufficient to implicate the privilege against self-incrimination. Compulsion is an essential element of a Fifth Amendment violation, and” he did not establish it. In addition, the record showed “the trial court did not rely on the allegedly inflammatory witness testimony in” making its best-interest decision. It based “its analysis on two documentary sources. First, the CPS investigation report—which supplied the factual predicate for [the] father’s no-contest plea—established that his infant son died from malnourishment while in his care. Second, [the] father’s clinical interview with court-ordered evaluators” showed that he displayed “an inability to comprehend or acknowledge the cause of his son’s death and failed to articulate a concrete plan to prevent future CPS involvement.” Affirmed.