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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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The Americans with Disabilities Act (ADA); 42 USC § 12112(a); How the ADA accounts for an employer’s concern that disabled employees might injure themselves or others in a particular job; Whether plaintiff was a “qualified individual” under the ADA; § 12111(8); Estate of Mauro ex rel Mauro v Borgess Med Ctr; Whether plaintiff posed a “direct threat” of harm; 29 CFR § 1630.2(r)(1)–(4); Reasonable accommodations; Interactive process; § 1630.2(o)(3)
The court held that plaintiff-Smith’s employer, defendant Newport Utilities, did not violate the ADA where (1) “Smith’s seizures posed a safety threat that barred him from continuing as a bucket foreman” and (2) he failed to identify “any other open positions that he was qualified to perform.” He worked as a powerline repairman for Newport for many years. After he had two on-the-job seizure incidents within months, he was diagnosed with “absence seizures.” Newport gave him a choice between being fired or retiring. He opted to retire and then sued under the ADA. The district court granted Newport summary judgment. The court found that this appeal turned on “how the ADA accounts for a concern that disabled employees might injure themselves or others in a particular job.” It noted that there was a split in the circuits as to how the courts should evaluate the “risk that an employee might cause harm” under the ADA. But the parties did not engage with the “burden-of-proof question, so” the court opted “not to resolve it.” It instead assumed that Newport “bore the burden to show that Smith qualified as a direct threat of harm if he remained in his role as a bucket foreman” and also that Newport “could obtain summary judgment only if it ‘affirmatively introduce[d]’ such evidence that ‘no rational jury’ could disagree with its conclusion that” this was so. As to the meaning of “qualified individual,” the court has held that “the need for employees not to cause harm [is] an ‘essential function’ of all jobs.” It concluded that Newport met its burden to show that “Smith qualified as a direct threat of harm to himself and others as a bucket foreman. Consider the four regulatory factors. If Smith had a seizure as a bucket foreman, it could cause the most ‘sever[e]’ of ‘harm[s]’: death.” The court noted that he “worked in an ‘inherently dangerous’ role fixing live powerlines often in extreme weather.” In addition, “every doctor who evaluated Smith supported the conclusion that he created a risk of harm in the bucket-foreman role.” As to accommodations, a “modified schedule cannot qualify as a reasonable accommodation if the changes would eliminate an essential function of the job” and that was the case here. Smith also argued that he could have been transferred to an alternative position, but there was no evidence he ever asked for a different job. And Newport did investigate if he “qualified for any unfilled jobs. When the company forced him to retire,” four open positions were identified – he did not qualify for any of them. Finally, as he “did not identify any reasonable accommodations that Newport” could have made, his claim that it violated its duty to interact also failed. Affirmed.
Request for funding for an expert witness; People v Kennedy; MRE 702
Concluding that the trial court prevented juvenile respondent-MNB “from presenting a meaningful defense by denying her request for funding for an expert witness[,]” the court reversed her misdemeanor assault and battery conviction and remanded. MNB argued “that an expert witness would have assisted her in establishing her self-defense claim by explaining the social context of her fight with LC, particularly as it regards LC’s racially derogatory comments and how [they] could have made MNB feel more fearful, thereby justifying her use of force.” The court applied the Kennedy standard to the facts of this case. It noted that “the Kennedy standard does not require an indigent defendant to pass the MRE 702 test for admissibility of expert testimony. Instead, the threshold for obtaining a court-appointed expert at public expense involves a review to ensure that the defendant receives a fair trial under constitutional standards.” In this case, the trial “court failed to consider MNB’s request for an expert under the Kennedy standard, and instead erroneously relied on MRE 702 to deny as inadmissible [her] request for an expert qualified to testify about racism’s effect on MNB’s behavior.” In addition, it “erroneously faulted defense counsel for failing to give the name of a specific prospective expert witness.” The court held that the “trial court erred to the extent that it weighed defense counsel’s failure to locate and present a specific witness against MNB.” Further, it concluded that “MNB met her burden to show entitlement to funding for an expert witness.” It found that it was “important to note that an indigent defendant who seeks funding for an expert does not need to show that they cannot present a defense at all without the aid of expert testimony. Rather, the defendant must show that expert testimony would assist the defense and that the trial would be rendered fundamentally unfair without it.” In this case, “MNB established that LC’s habit of bullying her based on racial characteristics and calling her racial slurs played a major role in the conflict between them and exacerbated MNB’s response to LC’s physical attack against her. Under the circumstances, expert testimony on race and racism was key to crafting the defense and could have helped the jury better understand the dynamics at play in what may have otherwise appeared to be a run-of-the-mill schoolyard fight. Denial of an expert under the circumstances, where MNB met her burden under Kennedy, ‘result[ed] in a fundamentally unfair trial.’” Thus, MNB was entitled to a new trial.
Enhanced sentence under the Armed Career Criminal Act (ACCA); 18 USC § 924(e)(1); Whether the error of having the judge determine whether defendant committed three prior drug offenses “on occasions different from one another” was harmless; Erlinger v United States; United States v Campbell; Wooden v United States
On remand from the Supreme Court, the court held that the district court’s enhancement of defendant-Cogdill’s sentence under the ACCA did not constitute “harmless error” under Erlinger, which requires that the jury, not the judge, determine whether a defendant’s three prior drug convictions occurred on “different occasions.” Cogdill pled guilty to FIP. The district court enhanced his sentence under the ACCA after determining that he had committed three prior drug offenses “on occasions different from one another.” This increased his statutory penalty range from a maximum of 10 years to a minimum of 15 years. It also increased his effective Guidelines range from 10 years to a range of 15 to 17.5 years. The district court sentenced him to a 15-year mandatory minimum term. The court previously affirmed. While Cogdill’s certiorari petition was pending, the Supreme Court decided Erlinger, holding “that the Sixth Amendment requires a jury to decide whether past offenses were committed on different occasions for ACCA purposes.” It then vacated the court’s decision and remanded for reconsideration in light of Erlinger. Finding that the main issue was “whether the district court’s error was harmless[,]” the court held that under its precedent in Campbell, the government had to prove beyond a reasonable doubt that, “absent the error, any reasonable jury would have found that Cogdill committed the prior offenses on different occasions.” The focus in this case was “on whether any rational jury would have found that” Cogdill’s 6/14 and 9/14 Tennessee meth offenses, both of which he pled guilty to in 1/16, “were committed on occasions different from one another.” The court determined that it could not “‘confidently say, based on the whole record, that the government has shown that the constitutional error at issue here was harmless beyond a reasonable doubt.’” In light of “the scant evidence of Cogdill’s prior offenses and how they fare under the relevant factors, a rational jury could reasonably conclude that [he] committed his latter two offenses ‘during a single criminal episode.’” The Supreme Court clearly held in Erlinger that “‘no particular lapse of time . . . automatically separates a single occasion from distinct ones[.]’” Erlinger and Wooden “make clear that the prior offenses’ timing, proximity, and relationship with one another all bear on whether they were committed on the same or different occasions.” Whether the government could meet its burden of proving harmlessness depended on whether it could “prove beyond a reasonable doubt that Wooden’s factors (not just one) favor different occasions.” It did not. The court vacated Cogdill’s sentence and remanded.
Sufficiency of the evidence for a money laundering conviction (18 USC § 1957); “Criminally derived property”; Commingled funds; Sentencing; Procedural & substantive challenges; Failure to address national sentencing disparities; Whether defendant was entitled to a shorter sentence under Amendment 821 of the Sentencing Guidelines
The court held that the government proved beyond a reasonable doubt that defendant-Erker “withdrew more than $10,000 of criminally derived property, rather than his own personal funds,” from a business account he controlled. Thus, it affirmed his money laundering conviction. It also affirmed his sentences but remanded for the district court to consider whether he was entitled to a sentencing reduction based on Amendment 821. He was also convicted of mail fraud, wire fraud, and making a false statement under oath. His convictions arose from his operation of a Ponzi scheme that swindled over 50 people out of nine million dollars. On appeal, he first challenged his money laundering conviction, arguing that because “he put both ‘clean’ and ‘dirty’ funds in the same commingled account, and the government showed only that he made withdrawals from that account, the government didn’t prove that he withdrew ‘criminally derived property’ when he took money out.” The court considered the definition of “criminally derived property,” and held that the statute “clearly criminalizes Erker’s conduct.” In regard to situations where a defendant mixes dirty with clean money, it considered years of precedent involving commingled assets, including trust law. It considered the “lowest intermediate balance test” and the “proceeds first approach.” It noted that the “majority view is that § 1957 doesn’t require any sort of tracing” but it found there were “serious questions surrounding this approach.” On the other hand, it rejected a strict tracing rule. Ultimately, it declined to “decide which background accounting presumption controls” because under the facts here, Erker lost his argument “regardless of whether we apply a proceeds-first or lowest-intermediate-balance rule[.]” For example, the government showed that in one of his accounts, there was “a balance of $143.70 in clean funds, to which Erker added $152,149.62 of dirty funds and then withdrew $17,000. At no point did Erker have sufficient funds to cover this withdrawal—the lowest intermediate balance of clean funds was just $143.70. So Erker couldn’t have withdrawn clean funds. . . . All told, under any acceptable framework—including most circuits’ presumption of ‘dirty funds out first’—Erker’s actions fall within the sweep” of § 1957. As to his sentencing arguments, the court remanded for the district court to consider his claim that his sentence should be shortened under Amendment 821, which eliminated “status points” for those who were on probation or parole at the time of the charged offense. It noted that the “district court need not reduce Erker’s sentence but may do so after considering the § 3553(a) factors.”
The Whistleblowers’ Protection Act (WPA); MCL 15.362; “Public body” (MCL 15.361(d)); “Law enforcement agency”; The Private Security Business & Security Alarm Act (PSBSA); MCL 338.1067a; The Michigan Commission on Law Enforcement Standards Act (MCOLES); “Law enforcement officer” (MCL 28.602(f)(ii)(L)); Discharge contrary to public policy; Smith v Town & Country Props II, Inc; Distinguishing Landin v Healthsource Saginaw, Inc; Motion to unseal documents sealed under a protective order; MCR 2.302(C)
Holding that defendant-Spectrum Health’s security police force is not a “public body” for purposes of the WPA, the court affirmed summary disposition for defendants on plaintiff-former employee’s WPA claim. It also held that because “Spectrum Health cannot be considered a public body for purposes of the WPA, the trial court did not err when it concluded that plaintiff’s public-policy claim failed as a matter of law.” Finally, it concluded that the trial court did not abuse its discretion in denying his motion to unseal some of the documents sealed under a stipulated protective order. Plaintiff asserted that the termination of his employment was in retaliation for his reporting “that a Spectrum Health security officer was spying on another female security officer while she was in a lactation room pumping breastmilk” and his expression of “dissatisfaction with how his superiors were handling the investigation[.]” The question before the court was “whether defendants constitute a law enforcement agency, and therefore a ‘public body,’ for the purposes of the WPA. There is no dispute that Spectrum Health’s security department is licensed by the State of Michigan under the PSBSA.” After reviewing the MCOLES, the court found that while “Spectrum Health’s private security police may carry weapons and equipment comparable to law enforcement officers, may wear similar uniforms, and even may possess the legal authority to conduct warrantless arrests on Spectrum Health’s premises, and are governed by standards established by the Michigan State Police, they are explicitly excluded by MCOLES from the definition of a ‘law enforcement officer’ and do not possess an MCOLES certification like law enforcement officers do in the State of Michigan.” As a result, the trial court did not err in granting defendants summary disposition of plaintiff’s WPA claim. Likewise, his public-policy claim failed “as a matter of law because while Spectrum Health may have had an obligation to report certain crimes, and the failure to do so constitutes a misdemeanor, . . . the PSBSA does not contain a specific ‘legislative statement’ prohibiting the discharge of an employee.” Finally, the documents plaintiff sought to unseal were in a nonparty’s personnel file. Thus, the court upheld the trial court’s ruling under the plain language of MCR 2.302(C). Affirmed.
Priority to pay under the No-Fault Act (NFA); The general priority rule (MCL 500.3114(1)); Applicability of the exception in MCL 500.3114(2); Whether a dealership’s shuttle van service is a “motor vehicle operated in the business of transporting passengers”; State Farm Mut Auto Ins Co v Sentry Ins; The “primary purpose/incidental nature test”; Farmers Ins Exch v AAA of MI; Michigan Automobile Insurance Placement Facility (MAIPF)
In this priority dispute under the NFA, the court held that there was a genuine issue of material fact whether a dealership’s shuttle van service constituted “a ‘motor vehicle operated in the business of transporting passengers’ under MCL 500.3114(2).” After he was injured in an accident while a passenger in a dealership shuttle van, plaintiff-Smith filed a first-party claim for no-fault benefits against the insurer of the van (defendant-Motorists Commercial Mutual Insurance), the insurer of his wife’s vehicle (defendant-Farm Bureau), and defendant-MAIPF. The MAIPF was granted summary disposition. The trial court denied Farm Bureau’s summary disposition motion, and ruled that Farm Bureau was highest in priority to pay Smith’s benefits. On appeal, the court applied “the ‘primary purpose/incidental nature test’” set out in Farmers. It found that under the first prong of the test, there was no genuine dispute of material fact that the primary purpose of the dealership’s “shuttle vans is the transportation of passengers to and from the dealership. Motorists has not presented any evidence in the trial court to refute that this is the near-exclusive purpose of the shuttle vans.” But the court concluded there was a genuine dispute of fact as to “the second prong—whether transporting passengers is a primary component of the overall business of” the dealership. The court found that “based on the record, reasonable minds might disagree about whether the shuttle van service is a primary or incidental component of the dealership’s overall business.” Thus, it reversed “the trial court’s order denying Farm Bureau summary disposition, and” remanded.
Statute of limitations; The Michigan Supreme Court’s authority to issue Administrative Order No. 2020-3 (AO 2020-3) & Administrative Order No. 2020-18 (AO 2020-18); Carter v DTN Mgmt Co; Effect of the AOs; Personal representative (PR); Notice of intent (NOI)
The court held that defendants’ arguments based on the statute of limitations failed in light of the Supreme Court’s decision in Carter. Thus, they did not show that the trial court erred in denying their summary disposition motions. This medical malpractice case arose from the suicide death of plaintiff-PR’s father on 4/29/19. She served the NOI on 6/11/21 and filed the complaint on 12/13/21. Defendants unsuccessfully sought summary disposition on the basis the action was untimely. They contended “that the Supreme Court lacked the authority to issue” AO 2020-3 and AO 2020-18, and that, if it “had the authority, the tolling orders only applied to deadlines that expired during the period of the” COVID-19 state of emergency. The Supreme Court held in Carter “that AO 2020-3 and AO 2020-18 were valid exercises of [its] constitutional authority. The Supreme Court further held that pursuant to these orders, the” days from 3/10/20 through 6/19/20 were not included for MCR 1.108(1) purposes. It also determined that the computation of time for the Carter plaintiff’s filing resumed on 6/20/20, providing her the same number of days to file on 6/20/20 as she had at the time the exclusion became effective on 3/23/20. The court noted that to “the extent the trial court’s reasoning may have differed somewhat,” the court may affirm a trial court’s summary disposition decision “when it reaches the correct result even if our reasoning differs.” Affirmed.
Timeliness of petitions as to tax years 2019 & 2020; Relief under MCL 205.735a, MCL 211.53a, & MCL 211.53b; “Mutual mistake of fact”; International Place Apts-IV v Ypsilanti Twp; Differentiating between mistakes of fact & mistakes of law; Briggs Tax Serv, LLC v Detroit Pub Sch; Application of MCL 211.181(1) to tax years 2021, 2022 & beyond; Nomads, Inc v Romulus; Kalamazoo v Richland Twp; Burden of proof; “Business conducted for profit”; Tax Tribunal (TT)
The court held that no statute petitioner-Bodeco identified provided the TT “with the authority to grant relief on [its] claims for tax years 2019 and 2020.” As to tax years 2021, 2022, and beyond, the court found that the TT applied an incorrect burden of proof. It held that respondent-city “had the burden of proof to show that the tax-imposing statute, MCL 211.181(1), applied to petitioner’s property.” Thus, it affirmed the TT’s dismissal of petitioner’s claims as to tax years 2019 and 2020, vacated the TT’s final opinion and judgment insofar as it held petitioner subject to the tax imposed in MCL 211.181(1), and remanded. The case involved where “whether an airplane hangar Bodeco built on land it leased from the Northwestern Regional Airport Commission was subject to taxation by” respondent. Petitioner challenged the dismissal of its claims for tax years 2019 and 2020 on timeliness grounds. It claimed the TT had the authority to afford relief for these tax years “under MCL 205.735a, MCL 211.53a, and MCL 211.53b.” The court disagreed. Petitioner’s “petition was not filed ‘on or before [5/31] of the tax year involved’” as set forth in MCL 205.735a(6). And it was not filed within 35 days of the constructive denial of petitioner’s initial challenge by the board of review. As to MCL 211.53a, the court held that the TT erred in ruling that it “did not apply because a mutual mistake of fact could only be ‘an error of a transpositional, typographical, or mathematical nature.’” But the TT reached the right result because “its decision that petitioner failed to identify a mutual mistake of fact contemplated by MCL 211.53a was correct. The purported mutual mistakes petitioner identified are mistakes of law, not of fact[.]” Turning to the TT’s determination on the merits as to the claims for tax years 2021, 2022, and beyond, the court held that the TT “employed an incorrect burden of proof by requiring petitioner to prove that MCL 211.181(1) did not apply to its property, instead of requiring respondent to show that MCL 211.181(1) did apply to that property.” Also, the court questioned the TT’s “application of MCL 211.181(1) to Bodeco and” a nonparty company, finding that the TT’s “interpretation of the statute effectively removed the phrase ‘conducted for profit[.]’”
Child’s best interests; In re Lombard
Holding that termination was in the child’s best interests, the court affirmed termination of respondent-mother’s parental rights. Her rights were terminated on the basis of her noncompliance with case services and the child’s need for stability and permanence. On appeal, the court rejected her argument that termination was not in the child’s best interests. The trial “court explicitly noted the ‘questionable’ bond between” respondent and the child “in making its determination, which was adequately supported by the record.” In addition, she “continually went AWOL from her” placements, which negatively impact her visitation with the child. Further, she “had significant mental health diagnoses throughout the case” and “did not appear to benefit from her limited involvement with mental-health services . . . because she did not engage in services long enough to begin working toward her treatment goals.” She also “did not consistently attend school or maintain employment due to departing from her placements.” And the child “needed permanency, stability, and finality that respondent” could not provide due to her inconsistency. Finally, the child’s sibling’s ongoing case did not impact the trial court’s ultimate conclusion that termination was in the child’s best interests in this case.
Termination at the initial disposition; When reasonable reunification efforts are not required; MCL 712A.19a(2); Aggravated circumstances; MCL 722.638(1); Plain error review; In re Walters
The court held that the trial court plainly erred in terminating respondent-father’s “parental rights at the initial disposition, without first providing reasonable efforts toward reunification or finding aggravating circumstances[.]” It noted that the parties did not raise, “and the trial court did not address, whether DHHS established an exception to its responsibility to attempt reunification.” Thus, the issue was unpreserved and the court reviewed it for plain error affecting substantial rights. It was “clear that none of the exceptions to DHHS’s duty to provide reasonable efforts toward reunification” applied here. The “DHHS did not cite MCL 712A.19a(2) or MCL 722.638 in its petition, and the trial court did not cite” either statute in the termination order. There was also no evidence that respondent abused the child or a sibling of the child, or that his “parental rights to another child were ever terminated,” In addition, he “was never convicted of any charges listed in MCL 712A.19a(2)(b), or ordered to register as a sex offender[.]” As to plain error, the court held in Walters “that the interpretation of MCL 722.638 and MCL 712A.19a(2) are clearly provided by the statutes’ plain language; therefore, this is not an issue that is subject to a reasonable dispute.” It further found in Walters “that when a trial court improperly failed to provide reasonable reunification efforts, ‘the trial court’s error prejudiced [the respondent] because (1) it is unclear how an aggrieved respondent could establish outcome-determinative error concerning the denial of reunification services altogether and (2) the error improperly dispensed with a critical aspect of a child protective proceeding—the requirement to offer reunification services before terminating parental rights—affected the very framework within which this case progressed, undermined the foundation of the rest of the proceedings, and impaired respondent’s fundamental right to direct the care, custody, and control over her children.’” And as it concluded in Walters, this “‘analysis of the plain error rule’s third prong applies equally to any case in which a court erroneously terminates a parent’s rights in the absence of aggravating circumstances.’” Reversed and remanded. The court directed that on remand, the “DHHS shall prepare a case service plan, and the trial court shall order that reasonable” reunification efforts be made.