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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
The Uniform Child-Custody Jurisdiction & Enforcement Act (UCCJEA); Registration of a German custody order; MCL 722.1304(4); MCL 722.1105(2); Notice; MCL 722.1108(1); Due process; Whether the German order was in “substantial conformity” with Michigan law; MCL 722.1105(2); Failure to apply Michigan’s best-interest factors; Atchison v Atchison
Holding that the trial court did not abuse its discretion in confirming the German custody order at issue pursuant to the UCCJEA, the court affirmed. Respondent-father (Benjamin) contended that “(1) he was deprived of due process when he was not given proper notice of the German custody proceedings, and (2) the trial court erred by finding that he failed to prove a lack-of-notice defense to registration of the German custody order.” However, the court noted the absence of evidence or an explanation of how or when he “was notified of the German proceedings, his failure to address Germany’s service requirements, and his inconsistent acknowledgment to having some notice of the German proceedings[.]” As to due process, not only was the factual basis for his claim he failed to receive notice lacking, he also did not “explain how the Fourteenth Amendment applies to the alleged deprivation by the German court. To the extent” he contended the trial court violated his right to due process “by enforcing the German court order entered following a deprivation of notice, Benjamin offers no legal support for this position.” The court concluded he failed to meet “his burden to establish that he lacked proper notice of the German proceedings,” and as a result, it could not find “that the trial court deprived him of due process of law or erred by registering and enforcing the German custody order.” As to his argument that the German “order did not consider the children’s best interests and thus was not in substantial conformity with Michigan law[,]” the court noted that “the German court was not required to consider Michigan’s best-interest factors under the UCCJEA.”
First Amendment Free Exercise Clause; Whether defendant-employer (a private company) was a “state actor”; Whether defendant was serving a “traditionally exclusive governmental function”; Whether the government’s & defendant’s actions were “so entwined” as to amount to a “collective state action”; Whether the government “compelled” defendant to deny plaintiffs' religious exemptions from COVID-19 vaccination
The court held that defendant-employer (Smucker’s) did not qualify as a “state actor” for purposes of a First Amendment Free Exercise Clause claim, and that the district court properly dismissed plaintiffs-employees’ suit. During the COVID-19 epidemic, Smucker’s, a federal contractor, followed President Biden’s order mandating vaccination for all unexempted employees of federal contractors. Plaintiffs applied for religious exemptions to the vaccine mandate. Smucker’s denied the exemptions, and they sued the company under the First Amendment’s free-exercise guarantee. To be sued under the Free Exercise Clause, Smucker’s had to have acted as a “state actor.” To determine this, the court first considered whether Smucker’s service involved a “traditional governmental function” and held that it did not where its underlying service, “making jam” is not a government function. The court then considered whether the government’s and defendant’s actions were “so entwined” as to amount to a “collective state action[.]” It held that there was no such relationship where “Smucker’s has not partnered, conspired, or entered into a ‘joint venture[]’ with federal officials[,]’” nor did it base its denial of the exemptions “using federal officials’ assistance.” Federal contracts alone are insufficient to create the necessary entwinement. Lastly, the court considered whether the government “compelled” Smucker’s to deny the exemptions, or “offered it ‘such significant encouragement . . . that [its] choice must in law be deemed to be that of the State[.]’” The court noted that this inquiry typically is considered in situations where plaintiffs are trying to sue the government and use a private entity’s actions to connect the government to the suit. Here, Smucker’s was being sued, and the government only “told Smucker’s to grant religious exemptions to those legally entitled to them, and let Smucker’s decide on its own who qualified." The court concluded that “Smucker’s did not become a state actor merely by complying with a generally applicable law.” Affirmed.
Waiver of right to counsel; MCR 6.005(D)(1); People v Anderson; Substantial compliance; People v Adkins (After Remand); Subsequent proceedings & reaffirmance; MCR 6.005(E); Whether a waiver was knowingly, intelligently, & voluntarily made; People v Williams; Prejudice; Challenge to information in the presentence investigation report (PSIR); MCL 771.14(6); Sentencing; Scoring of OV 4; MCL 777.34(1)(a); People v Wellman; Departure sentencing; Reasonableness & proportionality; People v Steanhouse; Department of Corrections (DOC)
The court held that defendant was not entitled to reversal related to his waiver of his right to counsel, that the content of his PSIR was accurate, and that the scoring of OV 4 was proper. However, it found that the trial court’s upward departure sentence was erroneous. He was convicted of AWIGBH and assaulting, resisting, or obstructing a police officer, causing injury for assaulting a Michigan conservation officer. The trial court departed from the guidelines range and sentenced him as a second-offense habitual offender to 5 to 15 years for the former and 4 to 6 for the latter. On appeal, he argued the trial court did not ensure he validly made his initial waiver of counsel, and failed to revisit his waiver of counsel and adhere to MCR 6.005(E) at the beginning of each subsequent proceeding. “The trial court substantially complied with the requirements of MCR 6.005 and Anderson by ensuring the validity of defendant’s initial waiver of counsel.” Although the trial court “did not explicitly find that defendant’s waiver was knowingly, intelligently, and voluntarily made, the trial court’s extensive dialogue with defendant, defendant’s repeated acknowledgment of the risks inherent in self-representation, and [his] acknowledgment of the trial court’s warnings indicate that [he] knowingly, intelligently, and voluntarily waived his right to counsel.” And while the trial court failed “to obtain defendant’s reaffirmance of his waiver of counsel at each subsequent proceeding, reversal is not required because defendant cannot establish that he suffered prejudice from the trial court’s error because he cannot show that the error affected the outcome of the lower court proceedings.” The court also rejected his claim that the reference to gang affiliation in his PSIR was inaccurate and should be omitted. “Contrary to defendant’s assertion the record contains evidence of his gang affiliation.” As to his contention the trial court incorrectly assessed 10 points for OV 4, even if the court accepted “that the trial court erred in assessing points for OV 4, because correction would not impact defendant’s sentencing guidelines minimum range, resentencing on these grounds is not required.” However, it found that the outside guidelines sentence was improper. “By definition, in the facts of this case,” defendant’s escalation of a minor traffic offense “was taken into consideration by the sentencing guidelines. As a result, relying on this as a basis to upward depart was error.” Affirmed in part, vacated in part, and remanded. The court retained jurisdiction.
Sentencing; Enhancement for possessing a dangerous weapon during the commission of a drug-trafficking conspiracy; USSG § 2D1.1(b)(1); § 2D1.1 cmt. n.11(A); Whether the district court honored the read & discuss requirement under FedRCrimP 32(i)
[This appeal was from the WD-MI.] The court clarified that, for purposes of imposing a sentencing enhancement under § 2D1.1(b)(1) “in the context of a long-running drug-trafficking conspiracy, the government needs to show some nexus between the demonstrated firearm possession—actual or constructive—and the defendant’s activities in pursuit of the conspiracy; possession cannot simply be possession at any point during the conspiracy, without regard to any nexus.” Defendant-Kennedy pled guilty to conspiracy to distribute and possess with intent to distribute 50 grams or more of meth, fentanyl, heroin, and crack cocaine, and was sentenced to 210 months. He challenged the application of the sentencing enhancement for possessing a dangerous weapon while trafficking drugs, § 2D1.1(b)(1). The record contained texts from the relevant time period in which drugs and guns were both mentioned, and a time-stamped photo showing him pointing a gun at the lens. The court found no clear error in the district court’s conclusion that the enhancement was applicable, although it “caution[ed] that the government showed the bare minimum necessary and this case rests at the outer bounds of our decisions on the firearm enhancement.” The government did show that “Kennedy both possessed guns and engaged in drug-trafficking activities on the same date.” This supported application of the enhancement. The court noted that determining “whether a firearm was present during the commission of the offense or relevant conduct within the meaning of USSG § 2D1.1 is more complicated in the context of a long-running conspiracy.” In light of the absence “of clarity on this issue and the need to give meaning to the word ‘present,’” the court took the opportunity to clarify the matter. It held that the government established the necessary nexus in this case, “albeit barely[.]” The court then considered Kennedy’s argument that the district court failed to comply with Rule 32(i)’s “read-and-discuss requirement” as to the PSR. It noted that case law “makes clear that so long as the district court can determine that defendant and counsel had the requisite discussion, Rule 32(i) is satisfied. This is the case here.” Affirmed.
Wrongful death action; Intentional tort exception to the exclusive remedy provision of the Worker’s Disability Compensation Act (WDCA); MCL 418.131(1); Palazzola v Karmazin Prods Corp; Inferring an intent to injure; Travis v Dreis & Krump Mfg Co; Distinguishing Golec v Metal Exch Corp & Fries v Mavrick Metal Stamping, Inc; Michigan Occupational Safety & Health Administration (MIOSHA)
Holding that that there was no genuine issue of material fact as to whether defendants committed an intentional tort making the exception to the WDCA’s exclusive remedy provision applicable, the court affirmed summary disposition for defendants. Plaintiff-estate’s decedent died “while working in the course of his employment for defendants.” The court concluded plaintiff did not show, “either with direct or circumstantial evidence, that defendants’ actions constituted an intentional tort because plaintiff’s evidence does not support a reasonable inference that [they] had actual knowledge of an injury certain to occur and that they willfully disregarded that knowledge.” Plaintiff contended a MIOSHA citation report showed they “knew of the dangers of faulty air-respirator systems and failed to protect decedent from those known dangers. The report found that defendants had violated multiple MIOSHA safety regulations, including that decedent’s helmet appeared to have multiple splices in it and that the compressor used to supply air to the helmet was in a position to allow contaminants into the air supply. However, the report did not establish that a particular supervisory employee involved in the events on the day of the incident had actual knowledge that decedent’s serious injury or death was certain to occur.” Plaintiff offered expert reports stating “decedent died from asphyxiation and that defendants knew that a faulty air-respirator helmet could cause asphyxia.” But the reports did not establish “that any particular supervisor had actual knowledge that decedent’s death by asphyxiation was certain to occur.” In light of the lack of evidence that he “experienced problems with his relatively new equipment or that [he] reported any issues to his supervisor” (E) before this incident, the court concluded there was no question of fact as to whether E or defendant-Bauman had actual knowledge he “was experiencing problems with his helmet or that decedent’s death was certain to occur from use of a faulty helmet.” The court found Golec and Fries distinguishable. In Golec, “the plaintiff reported a specific danger shortly before his injury occurred[.]” Likewise in Fries, “the injured employee had reported the workplace danger to his supervisor, and” the defendant there “explicitly acknowledged that he was aware that the specific equipment the decedent was using was faulty.”
Legal malpractice; Simko v Blake; Breach of the professional standard of care; Broz v Plante & Moran; Causation; Patel v FisherBroyles, LLP; Consent judgment; Brendel v Morris; Principle that the value of property may serve as a valid substitute for an award of child support; MCL 552.605(2)(c)
The court held that the trial court did not err by granting defendants-lawyer and law firm summary disposition of plaintiff’s legal malpractice claim. Plaintiff sued defendants for legal malpractice, alleging that as a result of defendants’ negligence she did not receive a fair distribution of the marital assets and child support in her divorce. The trial court ruled for defendants, finding plaintiff’s alleged injuries “were not proximately caused by defendants’ alleged negligence, but were attributable to plaintiff’s failure to seek child support after entry of the judgment.” On appeal, the court rejected plaintiff’s argument that the trial court erred by granting defendants summary disposition because a genuine issue of material fact existed as to her legal malpractice claim, and that summary disposition was premature because discovery had not yet taken place. It agreed with defendants that plaintiff failed to demonstrate proximate cause, and failed to demonstrate negligence or injury. In addition, plaintiff was not without a remedy. The trial court found the child support provision was modifiable, and that her alleged injuries resulted from her failure to seek modification of the child support award. “Because plaintiff failed to demonstrate that defendants were the proximate cause of her alleged injury, the trial court did not err in granting summary disposition.” Further, plaintiff “failed to show conflicting provisions in the judgment of divorce.” The court also rejected plaintiff’s contention that summary disposition was premature because discovery had not yet taken place. Plaintiff’s arguments speculated “about what evidence could be uncovered, but she fail[ed] to provide evidence to support her contentions.” As such, the trial court’s grant of summary disposition to defendants was not premature. Affirmed.
Fees paid to the lawyer-guardian ad litem (L-GAL); Effect of discharge of a conservator on appeals; Mootness
In these consolidated appeals regarding a conservatorship and guardianship, the court held that appellant’s discharge as Larry’s (the then legally incapacitated person) conservator rendered these appeals moot, and appellant had no further relief he could actually obtain from the court. Thus, it dismissed the appeals. The court noted “it was appellant who moved the trial court to terminate the conservatorship.” It concluded that “appellant being discharged as the conservator for Larry provided all the relief appellant could possibly hope to obtain in this case—he is no longer required to make the payment on behalf of Larry.” Instead, the court concluded that “presumably, Larry will be required to make the payment himself.” It noted that this entire dispute was about “fees paid to the L-GAL who was appointed by the trial court to investigate a guardianship and conservatorship and to prepare a report.” There was no public significance, and “the issue is not likely to evade judicial review going forward.” Presumably, in future cases, “the actual person being ordered to pay the contested fees would file the appeal, which would avoid the mootness issue.” In fact, in the previous appeal decided by the court, “many of these same issues were raised and decided without being rendered moot.”