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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.

 

 

Case Summary

Includes summaries of five Michigan Court of Appeals published opinions under Agriculture, Administrative Law, Constitutional Law, Criminal Law, Employment & Labor Law, Environmental Law, and Municipal, and one Michigan Court of Appeals published order under Personal Protection Orders.


Cases appear under the following practice areas:

  • Administrative Law (2)

    Full Text Opinion

    This summary also appears under Employment & Labor Law

    e-Journal #: 75072
    Case: Farish v. Department of Talent & Econ. Dev.
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Shapiro and Ronayne Krause; Concurring in part, Dissenting in part – Riordan
    Issues:

    The Michigan Employment Security Act (MCL 421.1 et seq); MCL 421.62(a); Deducting sums from present benefits to collect penalties & interest assessed due to prior overpayments; 42 USC § 503; Unemployment Insurance Program Letter (UIPL) 45-89; Deference to the Department of Labor’s (DOL) interpretation; Chevron USA v Natural Res Def Council, Inc; Skidmore v Swift & Co; Private cause of action to enforce § 503; Money damages; Declaratory & injunctive relief; Conversion; The Governmental Tort Liability Act (GTLA) (MCL 691.1401 et seq); Michigan Unemployment Insurance Agency (UIA)

    Summary:

    Concluding that the DOL’s interpretation of § 503 was at least entitled to Skidmore deference, the court held that the provision unambiguously prohibits the deduction of sums from present benefits for penalties and interest assessed due to prior overpayments. It also determined that a private cause of action exists to enforce § 503, but only as to declaratory and injunctive relief, not money damages. Lastly, it upheld the Court of Claims dismissal of plaintiffs’ conversion claims as they were barred by governmental immunity. When plaintiffs filed this action, their “current unemployment benefits were being deducted in whole or in part to recoup prior overpayments, penalties, and interest.” In UIPL 45-89, the DOL advised state employment security agencies “that permissible deductions from payment of unemployment compensation did not include penalties or interest[.]” The court concluded that viewing § 503 as a whole as opposed to subsection (g) alone, “the statute unambiguously precludes states from using unemployment funds to satisfy penalties and interest assessed against benefit recipients.” While § 503 is silent as to penalty and interest deductions, “in the absence of an applicable exception or express authorization,” such deductions violate § “503(a)(5)’s general directive that unemployment funds must be used to pay benefits.” The general principle set forth in UIPL 45-89 was “that deductions must be limited to recovery of the overpayment itself, and an offset may not be made to recover penalties and interest.” The court concluded that § 503 barred “the UIA’s practice of deducting penalties and interest from unemployment benefits.” Next, while it agreed with defendants that plaintiffs did not have a private cause of action under the statute “for money damages or remittance of the improper deductions,” the court found that they “may seek declaratory and injunctive relief.” Finally, although they offered several arguments for why their conversion claims were not barred under the GTLA, the court rejected them. It affirmed in part, reversed in part, and remanded “to the Court of Claims for entry of a declaratory judgment that deductions from unemployment benefits to satisfy penalties and interest violates [§ 503] and for an injunction enjoining such deductions in the future.”

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Environmental Law

    e-Journal #: 75071
    Case: South Dearborn Envtl. Improvement Ass'n, Inc. v. Department of Envtl. Quality
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Cameron, Tukel, and Jansen
    Issues:

    Dispute over the Department of Environmental Quality’s (DEQ) decision to issue a permit for an existing source of air pollution; Authority to modify permits previously issued; MCL 324.5503(c); Whether a major modification occurred; MI Admin Code, R 336.2902(1) & 336.2801(aa)(i); Principle that an agency must apply the law in effect at the time of its permitting decision; Distinguishing Ziffrin v United States; “Grandfathering”; Distinguishing Sierra Club v US Envtl Prot Agency (9th Cir); The DEQ’s duty to promulgate regulations on permit modifications; MCL 324.5512; Permitting under R 336.1207(1)

    Summary:

    The court held that the trial court did not err by affirming respondent-DEQ’s decision to issue a permit for an existing source of air pollution. Petitioner-environmental advocacy group filed a petition for judicial review of the DEQ’s decision to issue the permit to a local steel mill. After a lengthy dispute as to whether the petition was timely filed, the Supreme Court determined it was. The trial court then affirmed the DEQ’s decision to issue the permit. On appeal, the court rejected petitioner’s arguments, including its primary argument that the mill “was illegally allowed to evade current air pollution rules, which are more stringent than when the original” permit was issued. It ultimately agreed with the trial court that the DEQ’s decision to issue the permit was authorized by law. “The DEQ exercised its authority to issue the permit, and there is no indication that the DEQ’s decision violated a statute or resulted from procedures that were unlawful.” As to whether the decision was “arbitrary and capricious, the DEQ issued its decision after detailed study and a period of public comment and hearing. In light of this Court’s limited scope of review, we cannot say that this decision was not authorized by law.” Affirmed.

    Full Text Opinion

  • Agriculture (1)

    Full Text Opinion

    This summary also appears under Constitutional Law

    e-Journal #: 75073
    Case: Turunen v. Director of the Dep't of Natural Res.
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Murray, M.J. Kelly, and Rick
    Issues:

    Lawfulness of plaintiff’s pigs under the Department of Natural Resources’ (DNR) Invasive Species Order Amendment 1 (ISO); Johnson v Department of Natural Res; As-applied challenge; Vagueness; Fair notice; Adequate enforcement standards; Mootness

    Summary:

    While the court held that defendant-DNR’s ISO was not unconstitutionally vague as applied to plaintiff, it concluded that the trial court did not err in ruling that his pigs were not unlawful under the ISO. Thus, the court reversed the order ruling the ISO was unconstitutionally vague as applied but affirmed the judgment for plaintiff on defendants’ counterclaim. It first determined that the appeal was not rendered moot by the fact all eight pigs at issue were now dead, because “absent a decision on whether the pigs with these or similar characteristics violate the ISO, the parties will not have any legal clarity to guide their relations. As such, a decision on the legality of the eight pigs would have a practical effect on the parties and their rights to future enforcement of the ISO.” Regarding plaintiff’s as-applied challenge, the holding in Johnson established the law of the case as “to the ISO language and the fair notice element of the void-for-vagueness doctrine.” Further, plaintiff testified in his deposition “he was breeding his pigs for characteristics that he knew were characteristics of prohibited pigs. Even under these different facts, plaintiff failed to establish that the ISO did not provide fair notice of the type of pigs” it prohibited. He contended that “he was subject to subjective, arbitrary, and discriminatory enforcement of the ISO” due to the lack of explicit standards for determining whether it prohibited an animal and thus, “the DNR agents had unfettered discretion to determine whether the pigs were prohibited.” The trial court agreed the ISO lacked a clear enforcement standard and that this “encouraged the subjective application of its provisions.” Again referring to Johnson, the court noted that “as applied to these eight pigs, the DNR witnesses relied upon several of the listed characteristics as to each pig when opining as to why these eight pigs were unlawful under the ISO. Thus,” the court found that while “application of the criteria is somewhat subjective and may vary pig by pig, as applied to these pigs the standards” the DNR used were not unconstitutionally void. As to the lawfulness of the pigs, giving due deference to the trial court’s factual findings, and considering that it “was ‘in a better position to examine the facts,’ and applied the appropriate factors in determining whether any of the pigs fell within the parameters of the ISO,” the court could not conclude that its findings were clearly erroneous.

    Full Text Opinion

  • Alternative Dispute Resolution (1)

    Full Text Opinion

    This summary also appears under Employment & Labor Law

    e-Journal #: 75052
    Case: AFSCME Council 25 Local 1690 v. Wayne Cnty. Airport Auth.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, Cavanagh, and Fort Hood
    Issues:

    Action to vacate an arbitration award; Abuse of an arbitrator’s authority by disregarding an express collective bargaining agreement (CBA) provision; Sheriff of Lenawee Cnty v Police Officers Labor Council; Request for remand before a different arbitrator; Department Manager IV (DMIV)

    Summary:

    The court held that the arbitrator exceeded his authority by failing to draw his award from the essence of the CBA given that he disregarded an express provision, but it concluded that remand to the same arbitrator was appropriate. Thus, it reversed the trial court’s order granting defendant-employer’s summary disposition motion and denying plaintiff-union’s summary disposition motion, and remanded for entry of an order granting plaintiff summary disposition, vacating the arbitration award, and remanding for further arbitration. CBA Article 10.04, Step 4(E) addressed an arbitrator’s general authority. Article 34.07 provided that if a new employee is “placed in the pay grade at a higher rate than other bargaining unit members in the same classification,” their pay rate is to be increased to that rate. Defendant hired a new employee (K) at a pay rate higher than that of any other employee in the DMIV classification. Plaintiff filed a grievance asserting “that Article 34.07 required defendant to raise the pay rates of the other DMIV employees so that they all received $85,000 per year.” Defendant later lowered K’s salary to make it “the same as other DMIV employees.” But plaintiff went forward with its grievance, demanding “that defendant raise the annual wage of all DMIV employees to $85,000 and provide back pay for the” weeks K was paid at a higher rate. In granting an award in defendant’s favor, the arbitrator only considered Article 10.04, Step 4(E), reasoning it “prohibited him from granting a wage increase as a remedy.” The court concluded that the “plain language of Article 34.07 indicates a clear intention of the parties for the provision to apply to situations similar to this case.” But the arbitrator never mentioned it, “not even to say that it was trumped by Article 10.04, Step 4(E). By disregarding this crucial component" of the CBA, he "failed to tether his award to his interpretation and application of the CBA.” Further, because he failed to consider Article 34.07, “his award was not final or complete,” or rendered on the merits, so remand to the same arbitrator was appropriate.

    Full Text Opinion

  • Constitutional Law (2)

    Full Text Opinion

    This summary also appears under Municipal

    e-Journal #: 75070
    Case: Long Lake Twp v. Maxon
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Jansen and Ronayne Krause; Dissent – Fort Hood
    Issues:

    Zoning dispute; Whether the use of a drone to take aerial photos of defendants’ property violated their reasonable expectation of privacy; MCL 259.322(3); Florida v Riley; California v Ciraolo; Application of the Fourth Amendment in a civil case; Kivela v Department of Treasury; Whether a search occurred under the Fourth Amendment; People v Brooks; Effect of developing surveillance technology on the Fourth Amendment; Kyllo v United States; Intrusions into certain airspace as a trespass; United States v Causby

    Summary:

    The court held that the trial court erred by denying defendants-property owners’ motion to suppress drone photos used by plaintiff-township in this zoning dispute. Plaintiff alleged defendants were operating an illegal salvage or junk yard on their property in violation of a township ordinance. In support it offered aerial photos taken by a drone. Defendants moved to suppress the photos and resulting evidence claiming plaintiff’s actions constituted an unlawful search. The trial court denied their motion, finding they did not have a reasonable expectation of privacy. On appeal, the court first noted that “the trial court correctly determined that noncompliance with FAA regulations does not, per se, establish that a Fourth Amendment violation occurred.” However, it proceeded to find that “drone surveillance of this nature intrudes into persons’ reasonable expectations of privacy, so such surveillance implicates the Fourth Amendment and is illegal without a warrant or a traditional exception to the warrant requirement.” The court noted that drones are “intrinsically more targeted in nature than airplanes and intrinsically much easier to deploy.” In addition, “given their maneuverability, speed, and stealth, drones are—like thermal imaging devices—capable of drastically exceeding the kind of human limitations that would have been expected by the Framers not just in degree, but in kind.” Further, drones “fly below what is usually considered public or navigable airspace. Consequently, flying them at legal altitudes over another person’s property without permission or a warrant would reasonably be expected to constitute a trespass.” Finally, the court noted that it would be “unworkable and futile to try to craft a precise altitude test.” However, it concluded that “persons have a reasonable expectation of privacy in their property against drone surveillance, and therefore a governmental entity seeking to conduct drone surveillance must obtain a warrant or satisfy a traditional exception to the warrant requirement.” Reversed and remanded.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Agriculture

    e-Journal #: 75073
    Case: Turunen v. Director of the Dep't of Natural Res.
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Murray, M.J. Kelly, and Rick
    Issues:

    Lawfulness of plaintiff’s pigs under the Department of Natural Resources’ (DNR) Invasive Species Order Amendment 1 (ISO); Johnson v Department of Natural Res; As-applied challenge; Vagueness; Fair notice; Adequate enforcement standards; Mootness

    Summary:

    While the court held that defendant-DNR’s ISO was not unconstitutionally vague as applied to plaintiff, it concluded that the trial court did not err in ruling that his pigs were not unlawful under the ISO. Thus, the court reversed the order ruling the ISO was unconstitutionally vague as applied but affirmed the judgment for plaintiff on defendants’ counterclaim. It first determined that the appeal was not rendered moot by the fact all eight pigs at issue were now dead, because “absent a decision on whether the pigs with these or similar characteristics violate the ISO, the parties will not have any legal clarity to guide their relations. As such, a decision on the legality of the eight pigs would have a practical effect on the parties and their rights to future enforcement of the ISO.” Regarding plaintiff’s as-applied challenge, the holding in Johnson established the law of the case as “to the ISO language and the fair notice element of the void-for-vagueness doctrine.” Further, plaintiff testified in his deposition “he was breeding his pigs for characteristics that he knew were characteristics of prohibited pigs. Even under these different facts, plaintiff failed to establish that the ISO did not provide fair notice of the type of pigs” it prohibited. He contended that “he was subject to subjective, arbitrary, and discriminatory enforcement of the ISO” due to the lack of explicit standards for determining whether it prohibited an animal and thus, “the DNR agents had unfettered discretion to determine whether the pigs were prohibited.” The trial court agreed the ISO lacked a clear enforcement standard and that this “encouraged the subjective application of its provisions.” Again referring to Johnson, the court noted that “as applied to these eight pigs, the DNR witnesses relied upon several of the listed characteristics as to each pig when opining as to why these eight pigs were unlawful under the ISO. Thus,” the court found that while “application of the criteria is somewhat subjective and may vary pig by pig, as applied to these pigs the standards” the DNR used were not unconstitutionally void. As to the lawfulness of the pigs, giving due deference to the trial court’s factual findings, and considering that it “was ‘in a better position to examine the facts,’ and applied the appropriate factors in determining whether any of the pigs fell within the parameters of the ISO,” the court could not conclude that its findings were clearly erroneous.

    Full Text Opinion

  • Contracts (1)

    Full Text Opinion

    This summary also appears under Insurance

    e-Journal #: 75042
    Case: McIntosh v. Auto-Owners Ins. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Redford, Sawyer, and Boonstra
    Issues:

    Dispute over insurance coverage for damage to a roof; The common-law discovery rule; Trentadue v Buckler Lawn Sprinkler Co; Contract interpretation; Rory v Continental Ins Co

    Summary:

    The court held that the trial court did not err by dismissing plaintiffs’ (Willina and her son Robert) breach of contract lawsuit against defendant-insurer for its denial of coverage for their claim of loss arising from damage to the roof of Willina’s house. Plaintiffs sought coverage claiming the damage was caused by roof trusses caving due to ice and snow. Defendant denied the claim asserting that the damage “resulted from long-term creep deflection that occurred over a period of many years and not from accidental direct physical loss.” The trial court ruled for defendant, finding plaintiffs failed to fully comply with the policy’s terms and to timely file their lawsuit under the policy’s contractual one-year limitation period, both of which barred the lawsuit. On appeal, the court rejected plaintiffs’ argument that the trial court erred by dismissing their case as untimely because they relied on the common law discovery rule to extend the contractual limitation period. It noted that the trial court “did not apply the Trentadue holding to this case but rather enforced the terms of the policy as written as required under Michigan law.” It then found that “Robert’s violation of the immediate notification provision constituted failure to fully comply with the terms of the policy, and barred plaintiffs from suing [defendant] as specified under the terms of the policy.” Under the policy’s contractual lawsuit limitation period, plaintiffs failed to timely file their lawsuit. “The trial court, therefore, could properly enforce the contract and dismiss it both because of plaintiffs’ failure to comply with the notice requirement and also for their untimely lawsuit filing.” In addition, because the policy did not provide tolling of the contractual limitation period for insureds to discover loss or damage, the trial court “had no obligation to consider or apply the common law discovery rule to toll the contractual limitation period.” The trial court granted defendant summary disposition “because Robert’s undisputed affidavit testimony established the facts on which the trial court relied when it applied the policy’s terms as written.” Affirmed.

    Full Text Opinion

  • Criminal Law (5)

    Full Text Opinion

    e-Journal #: 75074
    Case: People v. Swenor
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Fort Hood; Dissent – Sawyer; Concurrence - Servitto
    Issues:

    Search & seizure; People v Kazmierczak; Inventory search of personal property; People v Toohey; Illinois v Lafayette; Preservation of issues for appellate review; People v Carines; Suppression of evidence; The exclusionary rule; Davis v United States

    Summary:

    The court held that the trial court did not err by granting defendant’s motion to suppress evidence discovered as the result of an inventory search of his personal property. He was arrested for trespass. The arresting deputy impounded his personal property and later performed an inventory search, during which he found a digital scale with meth residue. Defendant was charged with felony possession of meth and misdemeanor trespass. However, the trial court granted his motion to dismiss the drug evidence, finding the search did not satisfy the requirements of the inventory exception to the warrant requirement. On appeal, the court first found that the prosecution “did not adequately raise its argument that the department was not required to conduct its inventory search pursuant to a written policy below.” As to whether a written policy was required, the court held that “in order to establish that an inventory search is reasonable, the prosecution must establish that an inventory-search policy existed, all police officers were required to follow the policy, the officers actually complied with the policy, and the search was not conducted in bad faith. Whether the policy is or is not in writing should not itself be dispositive of the constitutional question.” However, it could not “conclude that the trial court’s decision was clearly or obviously wrong.” Regardless of the correctness of its holding that the search was invalid because officers did not conduct it pursuant to a written policy, “its decision was not plainly or obviously wrong because no binding caselaw has directly addressed whether a written policy was required.” The court then declined to review the prosecution’s unpreserved claim that suppression was not an appropriate remedy here because the officers were acting in good faith, noting it “generally decline[s] to overturn a suppression decision on the basis that suppression was not the appropriate remedy where the prosecution did not raise the issue before the trial court.” In this case, “the prosecution did not argue before the trial court that the exclusionary rule should not apply. To the extent that the prosecution argued that the police officers had not behaved inappropriately, it was part of the prosecution’s argument that the officers were protecting defendant’s property and protecting themselves from false claims of loss.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 75057
    Case: People v. Roberts
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Letica, Cavanagh, and Fort Hood
    Issues:

    Motion to quash the information; Purpose of the preliminary exam; Probable cause; People v Henderson; Aiding & abetting; MCL 767.39; People v Moore; Mere presence; People v Norris; Bindover; MCL 766.13; MCR 6.110(E); AWIM; People v Jackson; Intent; People v Taylor; AWIGBH; People v Parcha; Felony-firearm; People v Goree

    Summary:

    Holding that the prosecution presented sufficient evidence to establish probable cause to believe defendant aided and abetted the shooting of the victim and the felony-firearm, the court held that the district court did not abuse its discretion in binding him over for trial. Thus, it reversed the circuit court’s orders granting defendant’s motion to quash and dismissing the charges against him, and remanded. He was charged with AWIM, AWIGBH, and felony-firearm. The district court bound him over for trial, but the circuit court granted his motion to quash the information. On appeal, the court agreed with the prosecution that the evidence presented during the preliminary exam established probable cause as to defendant’s involvement in the charged offenses as an aider and abettor. It found that the prosecution “presented evidence to support each element of aiding and abetting and that the district court properly determined that this evidence was enough to establish probable cause as to the charged offenses.” It concluded that the circuit court erred by finding defendant was “merely present during the shooting. By uttering the words ‘there he go right there,’ and pointing with his body, a reasonable person could believe that defendant aided [the shooter, D] in shooting the victim. After all, immediately after defendant uttered those words,” D shot the victim. The district court “did not abuse its discretion in finding probable cause to believe that defendant either intended for [D] to shoot the victim, or else knew of” D’s intent when he provided aid. Finally, the court noted that “the district court properly addressed the charged offenses before it bound over defendant.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 75046
    Case: People v. Unger
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Tukel, Jansen, and Cameron
    Issues:

    Sufficiency of the evidence for first-degree murder, AWIM, & felony-firearm convictions; Identity; Judicial bias; People v Stevens; A judge’s wide discretion to control the trial proceeding & limit argument to material & relevant evidence; MCL 768.29

    Summary:

    Holding that there was sufficient evidence of defendant-Unger’s identity as the perpetrator to support his convictions, and rejecting his judicial bias claim, the court affirmed. He was convicted of first-degree murder, AWIM, and felony-firearm. The court concluded that the evidence allowed the jury to reasonably determine he was the only other person inside the business (Custom Enterprises) with the victims when they were shot. His girlfriend (C) saw him jump over the fence, and he acknowledged he had been on the property. Security camera video showed them driving away “within seconds of the assault victim calling 911.” There was evidence that a cell phone associated with defendant “was moving away from Custom Enterprises and toward the home of [his] father immediately after the shootings, and that police later recovered a .38-caliber revolver from that home.” The court also determined that “the jury could have reasonably concluded that it was Unger who committed these crimes when considering” his behavior and motive. The evidence showed that on the date of the crimes, he “did not have access to Custom Enterprises because it was in receivership and a liquidation sale had been scheduled.” Although the lock on the front gate had been changed, he and C went to the premises that day and lingered outside. “Importantly, in the time before the shootings, Unger parked his vehicle away from the front gate, he did not communicate with the victims, and only communicated with [C] via cell phone. Additionally, Unger’s motive could reasonably be inferred from text messages” sent from a cell phone connected to him. The court noted that the way the crimes were carried out supported “that they were committed by someone who was familiar with” the building layout. The physical evidence also allowed the jury to reasonably infer defendant was the culprit. “A .38-caliber bullet was removed from the murder victim’s body.” Six bullets of that caliber “were found in the center console of Unger’s vehicle, which he was driving when he was at Custom Enterprises and when he was arrested.” Testing on the bullet from the murder victim’s body to determine if it was fired from the revolver found in Unger’s father’s home was “inconclusive,” but an officer testified “the shots were likely fired from a revolver because no shell casings were found” in the building.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 75010
    Case: Taylor v. Owens
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Thapar, Daughtrey, and McKeague
    Issues:

    Habeas corpus; 28 USC §§ 2241(a) & (c)(3); Motion to vacate, set aside, or correct a sentence; § 2255(a); Subject-matter jurisdiction; Applicability of the “saving clause” in § 2255(e); Reliance on Elonis v. United States & United States v. Parks

    Summary:

    The court held that the district court lacked subject-matter jurisdiction over petitioner-Taylor’s habeas application because a district court has no jurisdiction over a habeas application under § 2241 if the petitioner could seek relief under § 2255, and has either “not done so or done so unsuccessfully.” It also held that he was not entitled to invoke the saving clause in § 2255(e) where he was unable to show he had no prior reasonable opportunity to bring his arguments in his earlier § 2255 proceedings. Taylor was convicted of, among other offenses, killing a person while avoiding an arrest for bank robbery. He filed a § 2255(a) motion to vacate his sentence in 2005, but it was denied as untimely. In 2018, he applied for a writ of habeas corpus, arguing that new case law established his original claim that a finding of intent to kill was necessary for his conviction. He claimed that because he had no such intent, he could assert actual innocence. The district court denied his application and dismissed it with prejudice. He appealed, claiming “that he satisfied the saving clause, or in the alternative, that the district court lacked subject-matter jurisdiction over” his application. The court first considered whether § 2255(e) constituted a limitation on the district court’s subject-matter jurisdiction, and held that it did. The court noted that § 2255(e) constitutes “a clear statement” of Congress’s intent, and that its “focus on courts favors treating the command as jurisdictional.’” The court also decided that § 2255(e)’s broad, mandatory command that the courts not entertain an application for a writ of habeas corpus created “a clear limitation of subject-matter jurisdiction.” It concluded that the “only escape route is the saving clause.” To take advantage of that, Taylor had to be able to “show ‘that he had no prior reasonable opportunity to bring [t]his argument’ in his earlier” § 2255 proceedings. However, he was unable to cite “a Supreme Court decision that reinterprets the statute of conviction to satisfy the saving clause.” Absent proof that a § 2255 motion was “inadequate or ineffective to challenge his sentence, no court may entertain his application” for habeas corpus under § 2241. The court concluded that the district court erred by denying the habeas petition on the merits, and remanded for it to dismiss the case for lack of subject-matter jurisdiction.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 75011
    Case: United States v. Tomes
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Nalbandian, McKeague, and Griffin
    Issues:

    Sentencing; Compassionate release; 18 USC § 3582(c)(1)(A); The First Step Act; USSG § 1B1.13 cmt. n.1; United States v. Elias; United States v. Ruffin; § 3553(a) factors

    Summary:

    The court held that although the district court erred by basing its denial of compassionate release on the Sentencing Commission’s policy statement, which was held inapplicable to defendant-filed motions in Elias, the denial need not be reversed because the district court gave the § 3553(a) factors as an alternate reason for its decision. Defendant-Tomes pled guilty to drug, firearm, and money laundering charges, and was sentenced to 20 years. He unsuccessfully applied for compassionate release, alleging that his chronic asthma made him more susceptible to serious illness from COVID-19, constituting an “extraordinary and compelling reason” for his release. The court noted that a district court’s “consideration of a compassionate release motion embraces three criteria: extraordinary and compelling reasons for release; the § 3553(a) factors; and any applicable policy statements.” However, it also noted that the Sentencing Commission has not updated its policy statement on compassionate release motions (§ 1B1.13) “since Congress passed the First Step Act.” The commentary to § 1B1.13 limits a finding of “extraordinary and compelling reasons” to just four situations. In Elias, the court held that § 1B1.13 does not apply to compassionate-release motions brought by inmates, so it need not be considered by the district courts. Thus, the district court erred by ruling “that ‘USSG § 1B1.13 limits the “extraordinary and compelling reasons” for compassionate release to’ the four categories in the guideline’s application notes.” This is no longer true. But reversal was not required because the district court also explained that it would have ruled the same based on the § 3553(a) factors. Tomes further claimed that if he were sentenced today, his sentence would have been shorter, but the court held that he was not entitled to the benefits of sentencing under the First Step Act where his sentence was imposed before its “enactment, making § 401 inapplicable.” Affirmed.

    Full Text Opinion

  • Employment & Labor Law (2)

    Full Text Opinion

    This summary also appears under Administrative Law

    e-Journal #: 75072
    Case: Farish v. Department of Talent & Econ. Dev.
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Shapiro and Ronayne Krause; Concurring in part, Dissenting in part – Riordan
    Issues:

    The Michigan Employment Security Act (MCL 421.1 et seq); MCL 421.62(a); Deducting sums from present benefits to collect penalties & interest assessed due to prior overpayments; 42 USC § 503; Unemployment Insurance Program Letter (UIPL) 45-89; Deference to the Department of Labor’s (DOL) interpretation; Chevron USA v Natural Res Def Council, Inc; Skidmore v Swift & Co; Private cause of action to enforce § 503; Money damages; Declaratory & injunctive relief; Conversion; The Governmental Tort Liability Act (GTLA) (MCL 691.1401 et seq); Michigan Unemployment Insurance Agency (UIA)

    Summary:

    Concluding that the DOL’s interpretation of § 503 was at least entitled to Skidmore deference, the court held that the provision unambiguously prohibits the deduction of sums from present benefits for penalties and interest assessed due to prior overpayments. It also determined that a private cause of action exists to enforce § 503, but only as to declaratory and injunctive relief, not money damages. Lastly, it upheld the Court of Claims dismissal of plaintiffs’ conversion claims as they were barred by governmental immunity. When plaintiffs filed this action, their “current unemployment benefits were being deducted in whole or in part to recoup prior overpayments, penalties, and interest.” In UIPL 45-89, the DOL advised state employment security agencies “that permissible deductions from payment of unemployment compensation did not include penalties or interest[.]” The court concluded that viewing § 503 as a whole as opposed to subsection (g) alone, “the statute unambiguously precludes states from using unemployment funds to satisfy penalties and interest assessed against benefit recipients.” While § 503 is silent as to penalty and interest deductions, “in the absence of an applicable exception or express authorization,” such deductions violate § “503(a)(5)’s general directive that unemployment funds must be used to pay benefits.” The general principle set forth in UIPL 45-89 was “that deductions must be limited to recovery of the overpayment itself, and an offset may not be made to recover penalties and interest.” The court concluded that § 503 barred “the UIA’s practice of deducting penalties and interest from unemployment benefits.” Next, while it agreed with defendants that plaintiffs did not have a private cause of action under the statute “for money damages or remittance of the improper deductions,” the court found that they “may seek declaratory and injunctive relief.” Finally, although they offered several arguments for why their conversion claims were not barred under the GTLA, the court rejected them. It affirmed in part, reversed in part, and remanded “to the Court of Claims for entry of a declaratory judgment that deductions from unemployment benefits to satisfy penalties and interest violates [§ 503] and for an injunction enjoining such deductions in the future.”

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    This summary also appears under Alternative Dispute Resolution

    e-Journal #: 75052
    Case: AFSCME Council 25 Local 1690 v. Wayne Cnty. Airport Auth.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, Cavanagh, and Fort Hood
    Issues:

    Action to vacate an arbitration award; Abuse of an arbitrator’s authority by disregarding an express collective bargaining agreement (CBA) provision; Sheriff of Lenawee Cnty v Police Officers Labor Council; Request for remand before a different arbitrator; Department Manager IV (DMIV)

    Summary:

    The court held that the arbitrator exceeded his authority by failing to draw his award from the essence of the CBA given that he disregarded an express provision, but it concluded that remand to the same arbitrator was appropriate. Thus, it reversed the trial court’s order granting defendant-employer’s summary disposition motion and denying plaintiff-union’s summary disposition motion, and remanded for entry of an order granting plaintiff summary disposition, vacating the arbitration award, and remanding for further arbitration. CBA Article 10.04, Step 4(E) addressed an arbitrator’s general authority. Article 34.07 provided that if a new employee is “placed in the pay grade at a higher rate than other bargaining unit members in the same classification,” their pay rate is to be increased to that rate. Defendant hired a new employee (K) at a pay rate higher than that of any other employee in the DMIV classification. Plaintiff filed a grievance asserting “that Article 34.07 required defendant to raise the pay rates of the other DMIV employees so that they all received $85,000 per year.” Defendant later lowered K’s salary to make it “the same as other DMIV employees.” But plaintiff went forward with its grievance, demanding “that defendant raise the annual wage of all DMIV employees to $85,000 and provide back pay for the” weeks K was paid at a higher rate. In granting an award in defendant’s favor, the arbitrator only considered Article 10.04, Step 4(E), reasoning it “prohibited him from granting a wage increase as a remedy.” The court concluded that the “plain language of Article 34.07 indicates a clear intention of the parties for the provision to apply to situations similar to this case.” But the arbitrator never mentioned it, “not even to say that it was trumped by Article 10.04, Step 4(E). By disregarding this crucial component" of the CBA, he "failed to tether his award to his interpretation and application of the CBA.” Further, because he failed to consider Article 34.07, “his award was not final or complete,” or rendered on the merits, so remand to the same arbitrator was appropriate.

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  • Environmental Law (1)

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    This summary also appears under Administrative Law

    e-Journal #: 75071
    Case: South Dearborn Envtl. Improvement Ass'n, Inc. v. Department of Envtl. Quality
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Cameron, Tukel, and Jansen
    Issues:

    Dispute over the Department of Environmental Quality’s (DEQ) decision to issue a permit for an existing source of air pollution; Authority to modify permits previously issued; MCL 324.5503(c); Whether a major modification occurred; MI Admin Code, R 336.2902(1) & 336.2801(aa)(i); Principle that an agency must apply the law in effect at the time of its permitting decision; Distinguishing Ziffrin v United States; “Grandfathering”; Distinguishing Sierra Club v US Envtl Prot Agency (9th Cir); The DEQ’s duty to promulgate regulations on permit modifications; MCL 324.5512; Permitting under R 336.1207(1)

    Summary:

    The court held that the trial court did not err by affirming respondent-DEQ’s decision to issue a permit for an existing source of air pollution. Petitioner-environmental advocacy group filed a petition for judicial review of the DEQ’s decision to issue the permit to a local steel mill. After a lengthy dispute as to whether the petition was timely filed, the Supreme Court determined it was. The trial court then affirmed the DEQ’s decision to issue the permit. On appeal, the court rejected petitioner’s arguments, including its primary argument that the mill “was illegally allowed to evade current air pollution rules, which are more stringent than when the original” permit was issued. It ultimately agreed with the trial court that the DEQ’s decision to issue the permit was authorized by law. “The DEQ exercised its authority to issue the permit, and there is no indication that the DEQ’s decision violated a statute or resulted from procedures that were unlawful.” As to whether the decision was “arbitrary and capricious, the DEQ issued its decision after detailed study and a period of public comment and hearing. In light of this Court’s limited scope of review, we cannot say that this decision was not authorized by law.” Affirmed.

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  • Insurance (1)

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    This summary also appears under Contracts

    e-Journal #: 75042
    Case: McIntosh v. Auto-Owners Ins. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Redford, Sawyer, and Boonstra
    Issues:

    Dispute over insurance coverage for damage to a roof; The common-law discovery rule; Trentadue v Buckler Lawn Sprinkler Co; Contract interpretation; Rory v Continental Ins Co

    Summary:

    The court held that the trial court did not err by dismissing plaintiffs’ (Willina and her son Robert) breach of contract lawsuit against defendant-insurer for its denial of coverage for their claim of loss arising from damage to the roof of Willina’s house. Plaintiffs sought coverage claiming the damage was caused by roof trusses caving due to ice and snow. Defendant denied the claim asserting that the damage “resulted from long-term creep deflection that occurred over a period of many years and not from accidental direct physical loss.” The trial court ruled for defendant, finding plaintiffs failed to fully comply with the policy’s terms and to timely file their lawsuit under the policy’s contractual one-year limitation period, both of which barred the lawsuit. On appeal, the court rejected plaintiffs’ argument that the trial court erred by dismissing their case as untimely because they relied on the common law discovery rule to extend the contractual limitation period. It noted that the trial court “did not apply the Trentadue holding to this case but rather enforced the terms of the policy as written as required under Michigan law.” It then found that “Robert’s violation of the immediate notification provision constituted failure to fully comply with the terms of the policy, and barred plaintiffs from suing [defendant] as specified under the terms of the policy.” Under the policy’s contractual lawsuit limitation period, plaintiffs failed to timely file their lawsuit. “The trial court, therefore, could properly enforce the contract and dismiss it both because of plaintiffs’ failure to comply with the notice requirement and also for their untimely lawsuit filing.” In addition, because the policy did not provide tolling of the contractual limitation period for insureds to discover loss or damage, the trial court “had no obligation to consider or apply the common law discovery rule to toll the contractual limitation period.” The trial court granted defendant summary disposition “because Robert’s undisputed affidavit testimony established the facts on which the trial court relied when it applied the policy’s terms as written.” Affirmed.

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  • Litigation (1)

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    This summary also appears under Malpractice

    e-Journal #: 75043
    Case: Randall v. Polazzo
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Redford, Sawyer, and Boonstra
    Issues:

    Medical malpractice; Collateral estoppel; Motion for summary disposition under MCR 2116(C)(6); Judicial estoppel; Case consolidation; MCR 2.505(A)

    Summary:

    Concluding that collateral estoppel did not bar plaintiff’s medical malpractice claims in this case, and that MCR 2.116(C)(6) and judicial estoppel did not apply, the court reversed the order granting defendants summary disposition and remanded. It instructed the trial court to exercise its discretion to determine whether consolidation with plaintiff’s prior ordinary negligence case was appropriate. The parties did “not dispute that the factual allegations supporting plaintiff’s medical-malpractice claims closely tracked an earlier complaint filed by plaintiff against the same defendants that only alleged ordinary negligence.” In that case, the court granted leave for interlocutory appeal and ruled that plaintiff had a “right to pursue ordinary-negligence claims against defendants under the concussion-protection statute, MCL 333.9156.” While that appeal was pending, plaintiff filed this action. His counsel indicated this was done due to the impending expiration of the statute of limitations for a medical malpractice action and the need to preserve plaintiff’s claim in the event the court ruled his ordinary negligence claims against defendants were unviable. The trial court ruled that collateral estoppel barred plaintiff’s medical malpractice claims. On appeal, defendants acknowledged that it did not apply, but argued that the court should affirm for a different reason, noting that they moved for summary disposition under MCR 2.116(C)(6). The court did not believe that plaintiff’s counsel’s filing of this action “was meant in any way to harass defendants who, notably, had maintained in the first action (and on appeal) that plaintiff’s negligence claims could only proceed under a medical-malpractice theory and argued in that case that summary disposition was appropriate because plaintiff had not complied with the procedural requirements for maintaining” such an action. Further, “MCR 2.116(C)(6) applies only when the second action ‘has been initiated between the same parties involving the same claim.’” While the underlying facts were the same, “ordinary negligence and medical malpractice are distinct legal claims.” As to judicial estoppel, the court noted among other things that defendants did not cite any case law or rule requiring plaintiff to bring his ordinary negligence and medical malpractice claims simultaneously.

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  • Malpractice (1)

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    This summary also appears under Litigation

    e-Journal #: 75043
    Case: Randall v. Polazzo
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Redford, Sawyer, and Boonstra
    Issues:

    Medical malpractice; Collateral estoppel; Motion for summary disposition under MCR 2116(C)(6); Judicial estoppel; Case consolidation; MCR 2.505(A)

    Summary:

    Concluding that collateral estoppel did not bar plaintiff’s medical malpractice claims in this case, and that MCR 2.116(C)(6) and judicial estoppel did not apply, the court reversed the order granting defendants summary disposition and remanded. It instructed the trial court to exercise its discretion to determine whether consolidation with plaintiff’s prior ordinary negligence case was appropriate. The parties did “not dispute that the factual allegations supporting plaintiff’s medical-malpractice claims closely tracked an earlier complaint filed by plaintiff against the same defendants that only alleged ordinary negligence.” In that case, the court granted leave for interlocutory appeal and ruled that plaintiff had a “right to pursue ordinary-negligence claims against defendants under the concussion-protection statute, MCL 333.9156.” While that appeal was pending, plaintiff filed this action. His counsel indicated this was done due to the impending expiration of the statute of limitations for a medical malpractice action and the need to preserve plaintiff’s claim in the event the court ruled his ordinary negligence claims against defendants were unviable. The trial court ruled that collateral estoppel barred plaintiff’s medical malpractice claims. On appeal, defendants acknowledged that it did not apply, but argued that the court should affirm for a different reason, noting that they moved for summary disposition under MCR 2.116(C)(6). The court did not believe that plaintiff’s counsel’s filing of this action “was meant in any way to harass defendants who, notably, had maintained in the first action (and on appeal) that plaintiff’s negligence claims could only proceed under a medical-malpractice theory and argued in that case that summary disposition was appropriate because plaintiff had not complied with the procedural requirements for maintaining” such an action. Further, “MCR 2.116(C)(6) applies only when the second action ‘has been initiated between the same parties involving the same claim.’” While the underlying facts were the same, “ordinary negligence and medical malpractice are distinct legal claims.” As to judicial estoppel, the court noted among other things that defendants did not cite any case law or rule requiring plaintiff to bring his ordinary negligence and medical malpractice claims simultaneously.

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  • Municipal (1)

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    This summary also appears under Constitutional Law

    e-Journal #: 75070
    Case: Long Lake Twp v. Maxon
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Jansen and Ronayne Krause; Dissent – Fort Hood
    Issues:

    Zoning dispute; Whether the use of a drone to take aerial photos of defendants’ property violated their reasonable expectation of privacy; MCL 259.322(3); Florida v Riley; California v Ciraolo; Application of the Fourth Amendment in a civil case; Kivela v Department of Treasury; Whether a search occurred under the Fourth Amendment; People v Brooks; Effect of developing surveillance technology on the Fourth Amendment; Kyllo v United States; Intrusions into certain airspace as a trespass; United States v Causby

    Summary:

    The court held that the trial court erred by denying defendants-property owners’ motion to suppress drone photos used by plaintiff-township in this zoning dispute. Plaintiff alleged defendants were operating an illegal salvage or junk yard on their property in violation of a township ordinance. In support it offered aerial photos taken by a drone. Defendants moved to suppress the photos and resulting evidence claiming plaintiff’s actions constituted an unlawful search. The trial court denied their motion, finding they did not have a reasonable expectation of privacy. On appeal, the court first noted that “the trial court correctly determined that noncompliance with FAA regulations does not, per se, establish that a Fourth Amendment violation occurred.” However, it proceeded to find that “drone surveillance of this nature intrudes into persons’ reasonable expectations of privacy, so such surveillance implicates the Fourth Amendment and is illegal without a warrant or a traditional exception to the warrant requirement.” The court noted that drones are “intrinsically more targeted in nature than airplanes and intrinsically much easier to deploy.” In addition, “given their maneuverability, speed, and stealth, drones are—like thermal imaging devices—capable of drastically exceeding the kind of human limitations that would have been expected by the Framers not just in degree, but in kind.” Further, drones “fly below what is usually considered public or navigable airspace. Consequently, flying them at legal altitudes over another person’s property without permission or a warrant would reasonably be expected to constitute a trespass.” Finally, the court noted that it would be “unworkable and futile to try to craft a precise altitude test.” However, it concluded that “persons have a reasonable expectation of privacy in their property against drone surveillance, and therefore a governmental entity seeking to conduct drone surveillance must obtain a warrant or satisfy a traditional exception to the warrant requirement.” Reversed and remanded.

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  • Personal Protection Orders (1)

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    e-Journal #: 75075
    Case: PF v. JF
    Court: Michigan Court of Appeals ( Published Order )
    Judges: Markey, Swartzle, and Tukel
    Issues:

    MCL 600.2950(1)(j) (referencing MCL 750.411h); “Stalking”; MCL 750.411h(1)(d); “Course of conduct”; MCL 750.411h(1)(a); “Harassment”; MCL 750.411h(1)(c); Reasonable cause; MCL 600.2950(4); MCL 600.2950(1)(a)- (l); MCL 600.2950(4)(a) & (b); Res judicata

    Summary:

    The court issued an order amending its published opinion (see e-Journal # 74956 in the 3/1/21 edition) to correct a clerical error. It again held that res judicata did not bar the circuit court from considering five earlier incidents that were included in a prior unsuccessful PPO petition where petitioner added a sixth, subsequent incident in this petition. The court reversed the denial of this petition and remanded to the circuit court to again adjudicate the PPO petition, taking into consideration the five earlier incidents and any other pertinent history between the parties. Respondent was petitioner’s ex-husband. She argued that the circuit court erred in granting summary disposition or involuntary dismissal on the basis of res judicata as to the initial five incidents referenced in the current PPO petition. The court held that “had petitioner sought a PPO on the basis of the same five incidents that were presented to the St. Clair circuit court and nothing more, then the doctrine of res judicata would plainly have applied and precluded petitioner from obtaining a PPO. Petitioner, however, alleged a sixth incident that had not been, and could not have been, alleged in the St. Clair circuit court.” And the new allegations as to the sixth incident, in the court’s view, “opened the door for consideration of the prior five incidents in conjunction with the sixth incident. The sixth incident drove petitioner to again seek the assistance of a court in an effort to obtain a PPO against respondent. And the sixth incident could not be viewed in isolation or a vacuum; rather, the pattern of conduct between and involving the parties, including the first five incidents, had to be examined in its entirety. The earlier incidents could give explanation or context to the sixth incident by providing insight on intent, continuity of purpose, the reasonableness of beliefs, and states of mind or feelings relative to terror, fright, intimidation, threats, harassment, and molestation.” The court recognized that “the transactions raised in the first PPO suit overlapped with all but one of the transactions raised in” this one. But were it to rule that res judicata barred “consideration of the first five incidents in relation to whether a PPO should be issued predicated on stalking activity, we would effectively be subverting the intent of the Legislature in enacting MCL 600.2950.” The court concluded the “circuit court needs to have the ability to examine and consider the totality of the circumstances when ruling on a PPO petition. The past history of the parties is a necessary consideration when evaluating whether a PPO should be issued.”

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  • Real Property (1)

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    e-Journal #: 75051
    Case: Burgess v. Burgess
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Tukel, Jansen, and Cameron
    Issues:

    Quiet title action; Adams v Adams; Statute of frauds; MCL 566.106 & 108; Zurcher v Herveat; The unclean-hands doctrine

    Summary:

    The court held that the trial court did not err by granting summary disposition for plaintiff-trustee on her quiet title claim. Defendant (plaintiff’s son) filed a claim of interest in the property, asserting he had a valid interest under a land contract. Plaintiff countered with this action, alleging the Trust was the sole owner of the property and that defendant was without any rights to it. On appeal, the court rejected defendant’s argument that the trial court erred by ruling in favor of plaintiff on the quiet title claim, and that it should have applied the unclean-hands doctrine. Because he “did not produce a written land contract and did not explain or rationalize how the facts support the application of a statute of frauds exception so as to justify removing the alleged agreement from the statute of frauds, the alleged transfer of the property was void.” In addition, although defendant cited “authority relating to the unclean-hands doctrine, he d[id] not explain or rationalize how the doctrine applies in this case.” Finally, considering his “failure to file a claim for money damages in the trial court,” the court failed to see how he would be entitled to such relief. Affirmed in part and remanded.

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