Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Age & race discrimination; MCL 37.2202(1)(a); Reliance on indirect evidence; McDonnell Douglas Corp. v. Green; Prima facie case of discrimination; Wilcoxon v. Minnesota Mining & Mfg. Co.; Circumstances giving rise to an inference of unlawful discrimination; Hazle v. Ford Motor Co.; Effect of the fact some of the applicants forwarded for consideration for the position were also members of the same protected class; Lytle v. Malady; Legitimate, nondiscriminatory reason for the employment decision; Town v. Michigan Bell Tel. Co.; Pretext
The court held that plaintiff did not make out a prima facie case of unlawful age and/or race discrimination, and that even assuming she had, she failed to show that the legitimate, nondiscriminatory reason for the application sorting decision by defendant-school district’s agent was a pretext for discrimination. Thus, it affirmed summary disposition for the district. She alleged that the district’s agent, defendant-MDW and Associates (doing business as an entity referred to as MLI), “committed age or race discrimination in violation of MCL 37.2202 by failing to include her job application among the narrowed-down pool of applicants for consideration by defendant when filling a superintendent position, which went to a younger, less qualified candidate of another race.” Plaintiff, 72 years old when she applied, is Caucasian. The dispute here was over the fourth Wilcoxon element, whether MLI failed to forward her application “under circumstances giving rise to an inference of unlawful discrimination.” The court found that, in situations such as this, “where there were multiple qualified candidates, it is equally, if not more reasonable to infer that MLI selected the candidates that it believed to be best qualified for the position of superintendent than that it excluded plaintiff from the candidate pool based on unlawful discrimination.” Further, some of the candidates whose applications were forwarded to the district were members of the same protected class as plaintiff. Two of them “were in their 60s and one was Caucasian. Generally, an inference of discrimination cannot be made with circumstantial evidence where there was not disparate treatment for members of the protected class.” The court concluded that plaintiff did not “set forth specific facts establishing that defendant’s actions were likely based on impermissible factors.” Thus, she failed to establish a prima facie case. It added that, assuming she had, defendant articulated a legitimate, nondiscriminatory reason for the decision – plaintiff had not been employed by a school district for a decade, “while all of the qualified candidates whom MLI forwarded to defendant for consideration . . . had extremely recent or current employment in leadership positions in school districts.”
Constitutional tort claims for alleged violations of Const. 1963, art. 1, §§ 11 (search and seizure) & 17 (due process); Sovereign immunity; Manion v. State Hwy. Comm’r; Odom v. Wayne Cnty.; Immunity from tort liability under the Governmental Tort Liability Act (MCL 691.1401 et seq.); MCL 691.1407; Nawrocki v. Macomb Cnty. Rd. Comm’n; Exceptions; Wesche v. Mecosta Cnty. Rd. Comm’n; Mays v. Governor; Rowland v. Washtenaw Cnty. Rd. Comm’n; Principle that governmental immunity statutes do not apply where a plaintiff has alleged violations of the Michigan Constitution; Smith v. Department of Pub. Health; Reid v. Michigan; Carlton v. Department of Corrs.; Rusha v. Department of Corrs.; Principle that the state will be liable for a violation of the state constitution only in cases where a state custom or policy mandated the official’s or employee’s actions; 42 USC § 1983; Monell v. New York City Dep’t of Soc. Servs.; Connick v. Thompson; Payton v. Detroit; York v. Detroit (After Remand); Canton v. Harris; Board of Cnty. Commr’s of Bryan Cnty., OK v. Brown; Registration under the Sex Offenders Registration Act (SORA) (MCL 28.721 et seq.); MCL 28.728(4) & (9); Michigan Department of Corrections (MDOC); Michigan State Police (MSP); Fourth-degree criminal sexual conduct (CSC IV)
The court held that the Court of Claims did not err when it denied defendant’s motion for summary disposition on the basis that sovereign immunity is not a defense to constitutional tort claims. However, it found that the Court of Claims erred when it denied defendant’s motion for summary disposition based on plaintiff’s failure to adequately allege a constitutional tort claim. Thus, it reversed and remanded for entry of summary disposition for defendant. In 2001, the probate court adjudicated plaintiff responsible for CSC IV for an incident that occurred when he was 16. The parties agreed that his name should have been removed from the SORA registry in 2011. However, because nobody removed his name or informed him that he was no longer required to register, he continued to do so. He was twice arrested for failing to comply with SORA requirements. He was fined the first time, and incarcerated the second time. He had been incarcerated for 17 months when the MDOC became aware that he “was being detained for a crime it was legally impossible for him” to have committed. It then notified the MSP, he was released from prison, and his convictions and sentences were vacated. Plaintiff then sued defendant alleging violations of Article 1, §§ 11 and 17 of the Michigan Constitution. Defendant moved for summary disposition on the grounds that the claims were barred by sovereign immunity, and that plaintiff failed to adequately allege a constitutional tort claim. The Court of Claims denied its motion. On appeal, the court rejected defendant’s argument that the Court of Claims erred by finding it was not entitled to sovereign immunity. In light of binding case precedent, the court held “that sovereign immunity is not a defense to constitutional tort claims.” However, it agreed with defendant that, “even if plaintiff’s suit is not barred on the basis of immunity, plaintiff’s claims must be dismissed because he has not alleged sufficient facts to have stated a claim upon which relief can be granted.” Because of the “lack of a ‘high degree of predictability’ and a lack of direct causation of a constitutional violation,” plaintiff’s complaint did “not allege sufficient facts to support a finding of deliberate indifference.”
Michigan’s lemon law; MCL 257.1403(1) & (5)(a); “Reasonable number of repairs”; Motion for a directed verdict; Locke v. Pachtman; Detroit & Milwaukee R.R. Co. v. Van Steinburg; Principle that the jury is the trier of fact; Caldwell v. Fox; Nichol v. Billot; Benefit of all reasonable inferences from the evidence; Clark v. Kmart Corp.; Tolan v. Cotton; Schedlbauer v. Chris-Craft Corp.; Revocation of acceptance; MCL 440.2608(1); MCL 440.2711(1); Measure of damages for breach of warranty; MCL 440.2714(2); Exclusion of evidence; Party admission under MRE 801(d)(2); Pearson v. Wallace
Holding that plaintiff’s testimony and the reasonable inferences flowing from it provided a factual basis for a jury to find that the car had a defect, the court concluded that the trial court erred in directing a verdict for defendants on her lemon law claim. Further, her revocation of acceptance and breach of warranty claims also should have gone to the jury. The car was a Porsche Cayenne. The court found that the lemon law claim came down to whether the defect in the car’s heating and cooling system continued “to exist after the fourth visit to the dealership?” Plaintiff contended that the “air conditioning did not work when she brought the car in for the fourth time.” One of defendant-dealership’s mechanics said that it did. The court noted that, in considering defendants’ motion for a directed verdict, the trial court was obligated to believe plaintiff. She was “entitled to the benefit of all reasonable inferences from the evidence.” Given that the “car had a cooling problem when it was brought to the dealership for the fourth time and nothing was done to fix” it, there was a “reasonable and obvious inference” that it still had the problem when it left the dealership. Nothing more was required for plaintiff to establish a prima facie case. As to her revocation of acceptance claim, she presented evidence that the car’s purchase price was $99,498.60. “This was a proper measure of her damages, regardless of whether she introduced evidence of ‘cover.’” Based on the plain language of MCL 440.2711(1), this claim should have gone to the jury. So should her breach of warranty claim. She sought to introduce the testimony of another dealership employee (B), who offered to buy the car back for $58,000. B explained that this figure was obtained after another dealership employee talked with an auction buyer. The trial court excluded the evidence. The court held that regardless of how B computed the figure, his admission that the car was worth $58,000 to the dealership “in trade-in value was decidedly not hearsay. [B] offered a lay opinion of the car’s value to a defendant in the lawsuit. This could not be ‘hearsay;’ it was clearly a party admission under MRE 801(d)(2).” Reversed and remanded for a new trial.
Sentencing; Fines; Legislature’s authority to provide for criminal penalties; People v. Hegwood; Const. 1963, art. 4, § 45; MCL 769.1k(1)(b)(i); Authorized fine for delivering at least 1,000 grams of cocaine; MCL 333.7401(2)(a)(i); Authorized fine for delivering less than 50 grams of cocaine; MCL 333.7401(2)(a)(iv); Proportionality; People v. Steanhouse; People v. Milbourn; Applicability to fines; People v. Antolovich; Deterrence; People v. Snow; Williams v. New York
Noting that the $500,000 and $25,000 fines imposed on defendant were authorized by law, and concluding that the Milbourn proportionality analysis still applies to fines, the court held that they were not disproportionate and that the trial court provided a basis for them. Thus, it affirmed his sentences of 225 to 360 months (plus the $500,000 fine) for his convictions of delivering 1,000 grams or more of cocaine and conspiring to commit this crime, and time served (plus the $25,000 fine) for delivering less than 50 grams of cocaine. It noted that a fine of not more than $1,000,000 was authorized under MCL 333.7401(2)(a)(i) for his delivering at least 1,000 grams of cocaine conviction, and MCL 333.7401(2)(a)(iv) authorized the $25,000 fine for delivering less than 50 grams of cocaine. The court rejected his claim that it was no longer good law that the Milbourn proportionality analysis applies to fines, noting that it was bound to follow Antolovich, which held that the principle of proportionality “applies to fines as well as to terms of imprisonment.” As to the trial court’s basis for the amounts imposed, it “clearly believed that defendant was a major trafficker in cocaine, to the detriment of a great number of people, including the families and children of those to whom he dealt cocaine, and those whose lives were destroyed as a consequence of being dealt the cocaine.” That conclusion was not unreasonable in light of the record. The trial court also determined “that the fines should be imposed both as punishment and for deterrence, both of which are recognized purposes of controlled substances laws and of sentencing generally.” While defendant did not appear to have a criminal history before his arrest, the court found that “the criminal conduct underlying this case was serious enough to justify the fines imposed, serving the purposes of punishment and deterrence.” It concluded that the trial court considered the surrounding circumstances in imposing the fines, and that they “were proportionate and reasonable under Milbourn.”
Jury oath; People v. Cain; MCR 2.511(H)(1); Ineffective assistance of counsel; People v. Grant; Trial strategy; People v. Foster; People v. Dixon; Failure to object when some jurors indicated that they were unable to swear or affirm the oath; People v. Ericksen; Failure to object to the prosecution’s rebuttal witnesses; People v. Unger; Failure to introduce a ballistics report; Failure to introduce cell phone records; MCR 7.211(C)(1)(a)(ii); Right to testify; Prosecutorial misconduct; Admitting only one part of defendant’s police statement; The rule of completeness; MRE 106; People v. McGuffey; Allegedly calling “improper” rebuttal witnesses; People v. Figgures
The court held that the trial court properly swore in the jury and ensured that all of them were able to swear or affirm the oath. Thus, defendant failed to show that an error occurred, and he was not entitled to a new trial. Also, he was not denied the effective assistance of counsel. Finally, the prosecution did not engage in misconduct. He was convicted of assault with intent to commit murder, carrying a weapon with unlawful intent, felon in possession, and felony-firearm. He argued that he was entitled to a new trial because the trial court ignored the indication by some jurors that they were unable to swear or affirm the oath and allowed them to remain on the panel for the duration of the trial. There was no objection and neither party disputed that the correct oath was given. Defendant’s argument concerned the indication by some jurors that they were unable to swear or affirm the oath. As correctly pointed out by the prosecution, defendant failed to acknowledge the relevant portion of the record. “The trial court asked, for a second time, whether there were any jurors who were unable to swear or affirm the oath, and made clear, on the record, that no jurors raised their hand to indicate that they were unable to swear or affirm the oath.” In sum, the record did not support defendant’s claim that there were jurors who were unable to swear or affirm the oath. Affirmed.
Sufficiency of the evidence of intent to support convictions of second-degree arson, arson of insured property, & intent to commit arson; MCL 750.73(1); MCL 750.76(1)(c); MCL 750.79(1); Establishing a person acted “willfully or maliciously”; People v. Nowack; Prosecutorial misconduct; People v. Bennett; Claim the prosecution misrepresented the intent element to the jury; Whether the prosecution argued facts not in evidence; People v. Unger; Ineffective assistance of counsel; People v. Trakhtenberg; Strickland v. Washington; People v. Ullah; Use of the word “confession”; Effect of the fact a strategy does not work; People v. Petri
The court held that the evidence was sufficient for a jury to find that defendant had the required intent to commit second-degree arson, arson of insured property, and intent to commit arson. It also rejected her prosecutorial misconduct and ineffective assistance of counsel claims. The case arose from a fire at defendant’s residence. The prosecution produced evidence that she “had financial and personal motives for committing arson: she owed back taxes, medical bills, and $8,000 on a repossessed car, and she wanted to adopt a baby but her house did not meet the necessary requirements.” The jury also heard her make incriminating statements during her police interview. Specifically, “she indicated that her arrangement of the space heater and cardboard in her bedroom was risky, but she did nothing to prevent the possible outbreak of fire and her attitude was if ‘it happened then whatever.’ She would be out from under the burden of her house, obtain some insurance money, and be in a better position to adopt a baby.” In addition, there was evidence that she “had visited webpages on how to start fires without matches or lighters only one day” before the fire, and the jury heard the testimony of the prosecution’s experts “that the fire originated at the space heater and was intentionally caused by human action.” The court held that, viewed in the light most favorable to the prosecution, the evidence was sufficient to allow “a jury to infer beyond a reasonable doubt that defendant ‘intentionally committed an act that created a very high risk of burning a dwelling house, and that, while committing the act, the defendant knew of the risk and disregarded it.’” The court rejected her claims that the prosecution misrepresented the intent element to the jury and argued facts not in evidence. Further, it was convinced by its review of the record that defense counsel’s “use of the word ‘confession’ . . . was part of a larger strategy to discredit the characterization of defendant’s statements as an arson confession.” The court noted that the fact “a strategy does not work does not render its use ineffective assistance of counsel.” Affirmed.
Custody; Applicability of Michigan’s child protection laws (MCL 712A.1 et seq.); Applicable burden of proof; MCL 722.25(1); Best interest factors of MCL 722.23; MCL 722.28; Pierron v. Pierron; Corporan v. Henton; Lieberman v. Orr; McRoberts v. Ferguson; Kubicki v. Sharpe; Judicial bias; MCR 2.003(C)(1)(e)
The court held that the trial court properly granted permanent sole legal and physical custody to plaintiff-father and continued to limit defendant-mother’s parenting time to two hours of weekly visits supervised by a therapist. It found no error in the trial court’s assessment of the best-interest factors, which the trial court found overwhelmingly favored plaintiff. Thus, it had no ground to interfere with the trial court’s ultimate custody decision. Finally, given the passage of time and the lack of any relationship between the judge who took over the case and defendant, disqualification was not warranted under MCR 2.003(C)(1)(e). Defendant argued that the trial court “erred by granting permanent sole legal and physical custody to plaintiff without first finding that she was an unfit parent or that the children were at risk of harm in her custody.” She further contended that it “erroneously applied the best-interest factors applicable to child custody cases in fashioning its ruling.” She asserted that “plaintiff was held to a higher burden of proof (establishing that she was an unfit parent) before he could be awarded full custody of their children because defendant and their daughters are registered members of an Indian tribe.” But she did not cite any “statute setting standards in relation to Indian children.” Rather, she cited MCL 722.25(1), the plain language of which “imposes a higher burden only when the custody dispute is between a parent and a nonparent.” As the case was between two parents, the children’s best interests controlled. Defendant further contended that as the trial “court’s order significantly interfered with her constitutional right to care and custody of her children,” the standards from Michigan’s child protection laws as to termination of parental rights should have been applied. However, she “cited no legal authority permitting this cross-over” and the court found none. A “custody order granting unequal parenting time can be revisited in the future while an order terminating parental rights cannot.” MCL 722.25(1) has “long provided that in custody disputes between a child’s parents, the best interests of the child control. And MCL 722.23 outlines numerous factors” to be considered “before rendering judgment to ensure that the best-interest analysis is thoughtfully and seriously undertaken.” While a child’s best interests “might dictate limited contact with a parent and this is undoubtedly upsetting to” the parent, the parent’s distress “does not warrant imposition of additional, unrelated standards when” his or her rights remain intact. Affirmed.
Child custody; Parenting time dispute under the Child Custody Act (MCL 722.21 et seq.); Designation of a referee to hear motions on domestic relations matters pursuant to the Friend of the Court Act (MCL 552.501 et seq.); MCL 552.507(2)(a); Principle that the Act does not relieve the trial court of its duty to review a custody arrangement once the issue of a child’s custody reaches the bench; Harvey v. Harvey; De novo hearing; MCL 552.507; Judicial hearing; MCR 3.215(E)(4); MCR 3.215(F); Presentation of evidence at a judicial hearing; MCR 3.215(F)(2); MCL 552.507(5)(b) & (6); Dumm v. Brodbeck; “Must” defined; Vyletel-Rivard v. Rivard; The trial court’s discretion to impose reasonable restrictions & conditions to conserve the resources of the parties & the court; MCR 3.215(F)(2)(c) & (d); Effect of the existence of an established custodial environment; MCL 722.27(1)(c); Hayes v. Hayes; Foskett v. Foskett; Rittershaus v. Rittershaus; Application of the clear & convincing standard; Jack v. Jack; Pierron v. Pierron; Brown v. Loveman; Sturgis v. Sturgis
Holding that the trial court abused its discretion when it declined, at the de novo hearing, to admit or consider new test results concerning the parties’ child’s speech, the court vacated and remanded for a de novo hearing. The hearing referee recommended that plaintiff-mother receive primary physical custody of the parties’ child and child support, and that defendant-father continue to exercise parenting time on alternating weekends. The trial court adopted most of the referee’s findings and granted joint legal custody to both parties and physical custody to plaintiff, with alternate weekend parenting time for defendant. On appeal, the court agreed with defendant that the trial court erred when it denied his request to present new, live evidence at the de novo hearing. “Defendant made an offer of proof of the report and indicated [he] would testify about” the child’s speech report and continued speech issues. “The trial court’s denial of the offer of proof or the opportunity to hear defendant’s testimony on the subject without explanation" was contrary to the court rules. The “evidence defendant wished to present was not in existence during the referee hearing and so it could not have been presented to the referee.” As such, the trial court erred by refusing to allow it, “particularly when it [did so] without explanation.” Although this resolved the appeal, the court addressed defendant’s claim that the trial court erred by applying the preponderance of the evidence standard after finding that an established custodial environment existed with both parents. It noted that “application of the preponderance standard would remain correct so long as the trial court continues to conclude that the proposed change would not alter [the child’s] custodial environment with both parents.”
Whether the operation of an adult foster care home on the property violated protective covenants & restrictions against operating a business enterprise on the premises; City of Livonia v. Department of Soc. Servs.; Covenant defined; Conlin v. Upton; Distinguishing Terrien v. Zwit; Malcolm v. Shamie; Craig v. Bossenberry; McMillian v. Iserman; The Department of Licensing & Regulatory Affairs (LARA)
Given Michigan’s public policy as to adult foster care family homes, the Supreme Court’s reasoning and decision in Livonia, and the significant factual distinctions between Livonia and Terrien, the court held that defendants were properly granted summary disposition in this action alleging violations of protective covenants and restrictions. Defendant-Counts purchased property in the subdivision. She incorporated defendant-Hummingbird Meadows as a for-profit operation, and the LARA granted it a license. “Counts, a registered nurse, lives in the home and cares for the day-to-day needs of six elderly residents with disabilities.” Plaintiffs requested permanent injunctive relief, alleging that the operation of the facility violated covenants disallowing business enterprises in the subdivision. They relied on the Michigan Supreme Court’s distinction in Terrien “between a covenant requiring residential use and one prohibiting business or commercial use and its determination that activity complying with the former may nevertheless violate the latter.” Defendants relied on Livonia, where the Supreme Court “held in relevant part that six developmentally disabled adults, and their resident caretakers, living in an adult foster care small group home and ‘function[ing] as a single housekeeping and social unit’ occupied the home for ‘residential use,’ even if they had to pay for the items and services they received.” Defendants also contended that “Michigan’s express public policy favoring the establishment of residential homes for the elderly and persons with disabilities in residential neighborhoods” supported their position. The court held that defendants had the better argument. It found plaintiffs’ argument unpersuasive for several reasons. First, as the “Terrien Court pointed out, this Court had previously ‘recognized the distinction between a covenant permitting only residential uses and one that also expressly prohibits commercial, industrial, or business uses.’” Thus, there was a clear legal framework for Livonia “to invoke this distinction three years later and to rule in favor of the plaintiffs’ argument that the operation of an adult foster care small group home was a business or commercial use of property.” The Supreme Court declined to do so. “Further, the factual differences between operation of an adult foster care family home and a family daycare center are significant.” In addition, the “public policy imperatives underlying protections for adult foster care family homes are not present” as to traditional home daycare operations. Affirmed.
Termination under §§ 19b(3)(a)(ii), (c)(i), (g), & (j); Jurisdictional challenges; In re Sanders; In re Collier; In re Kanjia; Impermissible collateral attack on jurisdiction; In re Hatcher; In re SLH; Due process; In re Rood; Whether the trial court was required to state on the record that it examined the case service plan pursuant to MCL 712A.18f(1); Trial court procedures; MCR 3.973(F)(1) & (2); MCL 712A.19(6) & (7); Principle that the trial court may proceed with the dispositional hearing in the absence of a party provided that proper notice has been given; MCR 3.973(D)(3); Evidence at the dispositional hearing; MCL 3.973(E); Dispositional review hearings; MCR 3.975(E); Effect of respondent’s absence; Plain error review; In re Utrera; Time requirements; MCR 3.975(C)(1); Absence of sanctions for the violation of 712A.19(11); In re Jackson; Forfeited issue; People v. Carter
The court held that because respondent-mother’s parental rights were terminated pursuant to a supplemental petition after reunification services were provided, she could not collaterally attack the trial court’s exercise of jurisdiction in this appeal. It also held that she could not show that her substantial rights were violated as to her unpreserved claims of procedural error during post-adjudication dispositional proceedings. The court rejected her argument that the trial court erred by exercising jurisdiction, distinguishing this case from Sanders, Collier, and Kanjia “for the simple reason that respondent received an adjudication trial, where she was represented by counsel, and the trial court adjudicated [her] as an unfit parent before issuing any dispositional orders.” If she thought that it “erred in obtaining jurisdiction over the children, she was free to challenge the trial court’s exercise of jurisdiction in an appeal by right from the initial dispositional order.” Because she did not “avail herself of that opportunity, she cannot now collaterally attack the trial court’s exercise of jurisdiction, including matters preceding the adjudication.” It also rejected her claim that errors at the various post-adjudication dispositional hearings violated her right to due process. It noted that her attorney stated that she had received notice of the initial dispositional hearing, but would not be attending. In addition, she cited no authority for the assertion that exhibits and witnesses were required, or for the assertion that the trial court “was required to state on the record that it had examined the case service plan.” Further, as to a later review hearing, “reunification services were continued and the trial court cautioned [the DHHS] that it needed to arrange for respondent’s participation electronically at future hearings if” she was unable to personally appear. Moreover, the time requirements of MCR 3.975(C)(1) were satisfied, and her argument that MCR 3.975(E) “was violated because no witnesses and exhibits were presented at the review hearing” lacked merit. Finally, “[e]ven assuming that the trial court erred by not stating its findings on the record, respondent did not object. Thus, [she] forfeited the issue,” and given that the necessary findings were contained in the trial court’s order, she failed to show “that any error affected her substantial rights.” Affirmed.