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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Attorney’s fees under the Equal Access to Justice Act (EAJA); 28 USC § 2412(d)(1)(A); Whether the government’s position in Hicks v. Commissioner of Soc. Sec. was “substantially justified”; Mathews v. Eldridge; Administrative Procedures Act (APA); 42 USC § 405(g); Administrative law judge (ALJ)
In these consolidated cases where plaintiffs prevailed on their claims that the government’s process for redetermining their eligibility for social security benefits was constitutionally and statutorily deficient, the court held that they were not entitled to recover attorney fees under the EAJA because the government’s position in the Hicks litigation was “substantially justified." Plaintiffs sued the government, challenging its decisions to deny them social security benefits and its refusal to give them an opportunity to challenge excluded evidence created by four doctors who conspired with an individual to commit social security fraud. The government maintained it had a “reason to believe” that the evidence was fraudulently created. The court in Hicks found that the government’s actions were unconstitutional. Plaintiffs then unsuccessfully sought attorney fees under the EAJA. The standard for determining whether a position is substantially justified is whether “‘a reasonable person could think it correct’ and ‘it has a reasonable basis in law and fact.’” The court held that even though the government erred by arguing that the due process claim was controlled by the balancing test in Mathews, “a reasonable person could have believed that Mathews provided the relevant standard[,]” and that if applied, it would weigh in the government’s favor. The court also found that the government’s position on plaintiffs’ APA claim, that it “had complied with the APA’s formal adjudication requirements, or, in the alternative, that it did not have to comply with those requirements, was substantially justified.” Likewise, the court concluded that a “reasonable person could also find that the government’s argument that it did not act arbitrarily and capriciously was correct.” But the court held that the government’s claim that the remand to the ALJ should have been under sentence six of § 405(g) and not under sentence four “was not substantially justified because it was foreclosed by binding Supreme Court and circuit precedent.” After considering the government’s arguments as a whole, it concluded that “the government acted reasonably” where the case involved several issues of first impression, and its “arguments on the ‘prominent’ issues in the litigation were reasonable.” The court rejected plaintiffs’ argument that the district courts made several errors of law in denying them attorney fees. Affirmed.
42 USC § 1983 action alleging excessive force in violation of the Fourth Amendment; “Reasonableness”; Effect of an expert’s report; Boyd v. Baeppler
The court affirmed summary judgment for defendants-police officers in this excessive force case, holding that their use of deadly force was objectively reasonable where plaintiff’s decedent (McShann), after initially being compliant, stopped following their commands and instead grabbed his readily accessible firearm and raised it in their direction. McShann was asleep in his car with his hand on a gun when the police awakened him. During questioning, he was told to keep his hands away from the gun but at some point, he grabbed the gun and swung it towards two officers. Defendants-Knight and Howard shot him. His estate sued for excessive force, but the district court concluded that the force used was reasonable and granted judgment for defendants based on qualified immunity. The court focused on whether McShann posed “an immediate threat to the safety of the officers or others[,]” and concluded that the officers’ actions were “objectively reasonable.” It noted that when “an initially compliant suspect stops following officer commands and instead grabs a readily accessible firearm, an officer ‘need not wait for [the] suspect to open fire on him . . . before the officer may fire back.’” The court rejected plaintiff’s arguments that fact questions remained that precluded summary judgment, finding that speculative by an expert that McShann was not holding the gun when he was shot, was “not enough to controvert consistent officer testimony to the contrary and generate a genuine dispute of material fact for trial.” As to alleged inconsistencies in the officers’ testimony, the court determined that plaintiff’s assertions were not borne out by the record, and at best, the supposed conflict simply created “‘metaphysical doubt’” about the material facts, which is insufficient to counter a summary judgment motion.
The privilege against self-incrimination (Fifth Amendment); In re Baker; Principle that a witness may not employ the privilege to avoid giving testimony that he or she simply would prefer not to give; Roberts v United States; The investigative-subpoena process (MCL 767A.1 et seq); MCL 767A.5(1) & (5); MCL 767A.6(3) & (5); MCL 767A.9(2)
The court held that the trial court did not err by holding respondent in criminal contempt for failing to answer questions during an investigative-subpoena hearing, or abuse its discretion and violate his right against self-incrimination by doing so. During respondent’s second interview pursuant an investigative subpoena in a homicide, he pled “the Fifth,” explaining he was refusing to answer a particular “question because he felt he had already answered the same question.” He was subsequently held in contempt and sentenced to six months in jail. On appeal, the court rejected his argument that the trial court erred by holding him in criminal contempt, and abused its discretion and violated his right against self-incrimination. “In this case, the trial court reasonably determined that respondent was simply refusing to give testimony that he preferred not to give.” The court found it “telling” that his counsel did not represent to the trial court that he was invoking his privilege or dispute the prosecutor’s representations. Because the trial court “reasonably relied on respondent’s testimony and the representations made by the parties during the contempt hearing, it did not abuse its discretion when it held [him] in contempt.” Affirmed.
Aggravated assault; MCL 750.81a(1); People v Starks; “Serious or aggravated injury”; M Crim JI 17.6(4); People v Norris; Intent; People v Zitka; Principle that an accused, by completing a criminal act, is presumed to intend the natural consequences of his or her actions; People v Kowalski; Offensive touching
The court held that the evidence was sufficient to enable the trier of fact to find beyond a reasonable doubt that respondent assaulted the victim resulting in a serious or aggravated injury. The trial court found her responsible for aggravated assault for striking and pushing the assistant principal (H) at her school, causing injury. It placed her on level one in-home probation. On appeal, the court rejected her argument that the evidence was insufficient to adjudicate her responsible for aggravated assault because she neither tried to physically injure nor intended to injure H. It found that testimony established she assaulted H, “by conducting an intentional, unconsented to, offensive touching” and did so “without a weapon and without the intent to murder him or inflict upon him great bodily harm less than murder.” H’s testimony established she “inflicted the serious injury of damaging his Achilles tendon.” And her own testimony confirmed she pushed H “after trying to pull away from him. The natural and probable consequence of assaulting someone by pushing them is that the person would fall or step back, potentially incurring injury.” While respondent testified differently about how the disagreement began, “she affirmatively testified that she tried to go into the restroom after [H] told her not to, that [H] grabbed her arms and she yanked her arm away from him and pushed him.” Further, there was no indication H used corporal punishment. “It was only after at least two verbal directions to return to class and after respondent continued walking down the hall that [H] used reasonable physical contact as necessary to guide [her] to the front office for the purpose of maintaining order and control at [the school] while classes were in session.” Affirmed.
Other acts evidence; MRE 404(b)(1); Unfair prejudice; MRE403
Finding error warranting reversal, the court reversed the decision to admit other acts evidence and remanded. Defendant was charged with violating Warren Code of Ordinances, hindering, resisting, or opposing a law enforcement officer and failing to obey a lawful command of a police officer. The court held that the district court erred in its admission of the evidence of her 2012 and 2017 incidents. They had “minimal probative value because they merely establish that on two prior occasions defendant behaved in an unruly or hostile manner in encounters with police officers in her neighborhood.” The 2012 incident involved her “approaching and yelling at police officers when they were conducting an unrelated investigation, and the 2017 incident involved defendant yelling at police officers after responding to a neighbor’s complaint about defendant’s dogs.” The prior incidents did not show her “intent or pattern of deliberately going to crime scenes that did not involve her and engaging in verbal and physical altercations with police.” Instead, the prior incidents and charged offenses were merely similar in that each incident involved the Warren police and defendant. They did not involve her ‘“plan’ to insinuate herself into an unrelated police investigation and ‘harass and pick fights’ with the police.” Thus, the prosecution failed to establish that her “behavior in 2017 proved she intended to approach and disobey the police officers in accordance with the current offenses.” Further, her “intent, plan, or system to allegedly commit the charged offenses was not a material issue in this case because defendant’s interaction with the officers was entirely captured on video. Instead, the underlying reason for admitting this evidence was to show defendant’s disrespect for police officers and conformity with that characteristic to commit the charged offenses. Because MRE 404(b) prohibits the use of the prior bad acts evidence to show a propensity to commit a charged offense, the district court’s erred in concluding that the evidence was offered for a proper purpose.” Also, evidence of the “incidents were excluded by MRE 403 because their probative value was substantially outweighed by their prejudicial effect.”
Motion for a mistrial; Effect of curative jury instructions; Ineffective assistance of counsel; Failure to make a futile motion; Lay opinion testimony; MRE 701; People v Fomby; Motion to suppress identification testimony on the basis it was tainted by an impermissibly suggestive identification procedure; Sufficiency of the evidence for a CCW conviction
The court held that the trial court did not abuse its discretion in denying defendant’s motion for a mistrial, and that defense counsel was not ineffective for failing to renew the motion. Further, witness-B’s opinion testimony that defendant was the person in a video did not invade the province of the jury and was admissible under MRE 701. The court also concluded that his motion to suppress B’s identification testimony was properly denied, and that there was sufficient evidence to support his CCW conviction. He was also convicted of AWIM, FIP, and felony-firearm, second offense. B responded to an open-ended question from the prosecution by stating “that defendant ‘shot up our house a couple years ago.’” The trial court sustained defense counsel’s objection and instructed the jury to disregard that testimony because it was completely unsubstantiated, but denied the motion for a mistrial. Nothing in the record supported “defendant’s assertion that the prosecutor sought to elicit improper testimony.” Further, apart from its prompt curative instructions specifically addressing the objectionable testimony, the trial court instructed “the jury that it was not to consider any excluded evidence or stricken testimony; that the jury was to decide the case based only on the properly admitted evidence; and that the jury was to follow the court’s instructions.” As to B’s identifying defendant in the video, the court concluded that she “was in a superior position to identify defendant in the surveillance video because of her substantial contact with him over a period of many years.” As to his motion to suppress, B “had no knowledge that a crime had been committed when she identified defendant.” She had a prior relationship with him and the photo “was used only to help confirm the identity of the person in” it, i.e., to determine whether the individual “in the photo was the same person with whom" B was already familiar. "This procedure did not create a substantial likelihood of misidentification.” Finally, the court held that the facts established “sufficient circumstantial evidence and the basis for reasonable inferences for a rational jury to determine, beyond a reasonable doubt, that defendant was concealing a gun when he was in the liquor store.” Affirmed.
Sentencing; Reasonableness & proportionality; People v Steanhouse; People v Milbourn; Whether the court was compelled to confirm; MCL 769.34(10)
The court held that the trial court did not err by sentencing defendant at the top of the guidelines. He was convicted of kidnapping, making a terrorist threat or a false report of terrorism, and making a false report of a bomb threat, for holding the mayor’s secretary hostage. In his first appeal, the court vacated his terrorism conviction, found his OVs were improperly scored, and remanded. On remand, the updated PSIR erroneously advised the trial court that defendant’s convictions for both terrorism and kidnapping were reversed on appeal. In his second appeal, the court found he was improperly resentenced on the basis of inaccurate information and remanded. On second remand, he was again resentenced. In the present appeal, the court rejected his argument that despite the presumption of proportionality that comes with a minimum sentence that falls within the minimum guidelines range, the trial court abused its discretion by sentencing defendant at the top of the guidelines. “As defendant concedes, the trial court sentenced him within the applicable minimum sentencing guidelines range to 70 months to 20 years . . . for his kidnapping and terrorist threat or false report of terrorism convictions.” Indeed, at his final sentencing hearing, defense counsel requested the trial court sentence him within the calculated guidelines range, and it honored that request. Moreover, he “has not asserted that there was any error in scoring the guidelines, or that the trial court relied on inaccurate information at sentencing.” Affirmed.
Motion to change a child’s domicile; MCL 722.31(4); Rains v Rains; Focus on the child; Established custodial environment (ECE); MCL 722.27(1)(c); Child’s best interests; MCL 722.23; Factors (d)-(f), (h), & (j); Due process; Whether the trial court should have considered the best interest factors separately related to a motion to change custody
The court held that the trial court did not apply an incorrect standard or abuse its discretion in granting plaintiff-mother’s motion to change the child’s (L) domicile. Further, while its findings as to best interest factor (h) were against the great weight of the evidence, its findings as to factors (d)-(f) and (j) were not and thus, it did not abuse its discretion in ruling that it was in L’s best interests to grant the motion. Finally, the court rejected defendant-father’s claim that his due process rights were violated and that the trial court erred in not separately considering the best interest factors as they related to his motion to change L’s custody. Defendant challenged its findings as to MCL 722.34(1)(a) and (c). As to the former, “the trial court primarily focused on the fact that plaintiff’s new position offered multiple benefits, including financial stability, increased time with plaintiff, and no risk of deployment, all of which had the capacity to improve” L’s life. In addition, while it appeared the record did not support its determination as to proximity to extended family, the evidence did “not indicate that the trial court’s result was so palpably and grossly violative of fact and logic that it evidences a perversity of will or the exercise of passion or bias. Thus,” it did not abuse its discretion as to MCL 722.34(1)(a). As to MCL 722.34(1)(c), the court disagreed with defendant’s assertion that it was impossible for the trial court “to order a modification of the parenting time schedule that will adequately preserve and foster his relationship with” L. It concluded that the court-ordered parenting time schedule would permit him “to maintain regular contact with” L. He had the ability to see the child two weekends per month, and had sole parenting time during the summer, allowing them “to maintain a similar schedule and routine as under the prior parenting time schedule.” He was also entitled to communicate with L electronically any time. The court further rejected defendant’s claim that the trial court failed to focus on L in considering the MCL 722.31(4) factors. It also held that the trial court properly found the change of domicile would change the ECE, and did not err “in concluding that plaintiff established, by clear and convincing evidence, that” doing so was in L’s best interests. Affirmed.
Dismissal for failure to comply with discovery; MCR 2.313(B)(2)(c); Dean v Tucker
Holding that the trial court abused its discretion in dismissing plaintiffs’ case as a discovery sanction without analyzing the Dean factors or considering alternatives on the record, the court vacated the order of dismissal and remanded. Plaintiffs alleged retaliation in violation of the Whistleblowers’ Protection Act. The trial court dismissed their complaint on the basis “that plaintiffs had missed too many scheduled depositions.” In concluding that the trial court abused its discretion, the court noted that “the entirety of the trial court’s explanation for dismissal consisted of the statement: ‘Okay, the Plaintiffs have missed too many depositions scheduled by Defense counsel and the email confirmed that date of the 15th [sic].’”
Quiet title to bottomland property under water; Riparian or littoral rights; Klais v Danowski; Great Lakes Submerged Lands Act (the Act) (formerly MCL 322.701 et seq now part of Michigan's Natural Resources & Environmental Protection Act (MCL 324.101 et seq)); Palmer v Dodd
The court held that defendants’ request it allow the bottomland abutting plaintiff’s property to be severed and treated as a separate parcel had no support in existing law. The “fact that the disputed bottomland property was originally part of a federal patent did not foreclose the trial court from applying this state’s law of riparian and littoral rights to determine the present dispute involving submerged property on an inland lake.” Thus, the court affirmed the order quieting title to the disputed property in plaintiff’s favor. In their only issue on appeal, defendants argued that the trial court erred by applying state law as to “riparian or littoral rights to quiet title to the disputed bottomland property in favor of plaintiff because the bottomland property originally derived from a federal land grant patent.” The court disagreed, first concluding that “the trial court did not err by applying riparian or littoral rules to the bottomland property, which undisputedly was submerged and abutted plaintiff’s upland property at the time” it quieted title. The decision in Klais did not compel a different result. This case was distinguishable because it did “not involve any claim that submerged land is held in public trust and is subject to” the Act. Defendants also relied on Palmer, where both “parties acquired their lands through federal patents. While the Court in Palmer stated that ‘[t]he principles which govern the rights of riparian proprietors do not apply to defendant’s grant,’ that was because ‘[n]o part of the land granted to him in the description contained in his patent was bounded by a lake or other water.’ The case does not stand for the proposition that state law regarding riparian rights cannot otherwise be applied to submerged land derived from a federal land patent that abuts lakefront property.”