Jennifer Dukarski Fishman Stewart Matthew W. Frank Cynthia Haffey Michael D. Hanchett Mary Massaron Megan Mitchell Ryan C. Washburn
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Regulations promulgated by the Occupational Safety & Health Administration (OSHA); 29 USC §§ 654(a)(1)-(2); Safety regulations for protection of ironworkers constructing steel-framed buildings; § 651(b); Fall protection; 29 CFR § 1926.760(a)(1); Fall-equipment exception for “connectors”; § 1926.751; Whether petitioner-employer had “fair notice” of the regulation’s interpretation; Ohio Cast Prods., Inc. v. Occupational Safety & Health Review Comm’n; Diebold Inc. v. Marshall; Regulation interpretation; Kisor v. Wilkie; “And”; OfficeMax Inc. v. United States; FTC v. Sun Oil Co.
The court affirmed respondent-Occupational Safety and Health Review Commission’s conclusion that petitioner-Lake Building violated an OSHA regulation requiring ironworkers to use equipment protecting them from falls, but it granted Lake Building’s petition challenging the citation where it lacked fair notice of the Commission’s interpretation of the regulation. The Commission determined that Lake Building had violated an OSHA regulation that steel building companies provide fall protection for certain workers. There is an exception to this requirement for those who work as “connectors.” The relevant regulation “defines a ‘connector’ as an ‘employee who, working with hoisting equipment, is placing and connecting structural members and/or components.’” When Lake Building was cited for failure to have fall equipment for some of its workers, it argued that they were connectors, reasoning that workers fit this definition if they are “working with hoisting equipment to place structural members, namely the bundles of steel decking. Thus, according to Lake Building, an employee is a connector when he is either ‘placing’ or ‘connecting’ structural members.” However, the Commission interprets the regulation “to mean that a worker is a connector only when he is doing both of those things.” The court agreed with the Commission that the regulation required both placing and connecting. However, it found that the wording of the regulation was “less than ‘artful’ to the extent it requires that an ironworker be both ‘placing and connecting’ a structural member to be a ‘connector.’” Further, Lake Building offered testimony that it is the industry practice to consider “ironworkers who are only ‘placing’ structural members or components of a building as ‘connectors.’” The court noted that in the 15 years since the effective date of the regulation, the Commission previously “enforced the regulation the way that it did here only once.” Thus, the court concluded that “Lake Building did not have adequate notice of the interpretation that gave rise to the citation here.” It vacated the citation and penalty.
Sufficiency of the evidence for an unauthorized practice of a health profession conviction under MCL 333.16294; The delegation exception (MCL 333.16215(1)); Performance of functions that cannot be delegated; Issuing prescriptions for controlled substances; Prescription defined (MCL 333.17708(3)); Prescriber defined (MCL 333.17708(2)); Sufficiency of the evidence for a Medicaid fraud conviction under MCL 400.607; People v. Orzame; The Medicaid False Claim Act (MFCA) (MCL 400.601 et seq.); Knowing & knowingly defined (MCL 400.602(f)); The knowledge element; People v. Perez-DeLeon; The fact-finder’s role to determine credibility; People v. Wolfe; Principle that a defendant cannot be convicted of crimes other than those charged; People v. Schilling; MCL 768.32(1)
Concluding that the delegation exception did not apply because defendant engaged in a function that could not be delegated when she issued prescriptions for controlled substances, the court affirmed her conviction of unauthorized practice of a health profession under MCL 333.16294. However, it reversed her convictions of Medicaid fraud under MCL 400.607 because the evidence did not show that she “knew or should have known that the nature of her conduct was substantially certain to cause the payment of a Medicaid benefit.” Before coming to the U.S., she earned a medical degree and completed a residency in China. She became a part-time employee at a clinic, but “has never been licensed to practice in a health profession in this country.” The court found that her “act of prescribing Ambien, a Schedule 4 controlled substance,” to a special agent (B) posing as a new patient at the clinic “was a nondelegable action as a matter of law.” She stipulated that she was not licensed to practice a health profession when this occurred. “Thus, under Michigan law, defendant was categorically not authorized to dispense prescriptions to patients. When she prescribed Ambien to treat [B’s] reported difficulty sleeping, she attempted to perform a task that ‘requires the level of education, skill, and judgment required of’ a licensed physician. Such tasks are nondelegable, and the lower courts therefore did not err by determining that there was sufficient evidence to convict defendant of the unauthorized practice of a health profession.” But as to the Medicaid fraud convictions, the court held that the evidence did not show “actual or constructive knowledge that defendant’s ‘conduct [was] substantially certain to cause the payment of a medicaid benefit.’” While the prosecution relied on “evidence that clinic patients’ charts contained their Medicaid status and copies of their cards[,]” there was no evidence that defendant possessed “the paper chart, much less that she flipped through it to find the Medicaid information. Significantly, the trial court found” her credible, and the court noted that her recitation of the evidence was consistent with the other trial evidence, including a video. Further, a high percentage of Medicaid patients at the clinic did not establish that she “had knowledge under which she was aware or should have been aware that her conduct in treating [the agents] was substantially certain to cause the payment of a Medicaid benefit.” Remanded to the trial court as to the fines assessed.Concurring, Justice Viviano agreed with the majority’s decision as to the convictions, but wrote separately to address concerns as to the MFCA. “First, the initial sentence of MCL 400.602(f), defining ‘knowing’ and ‘knowingly,’ is incomplete.” Second was the related question of “whether the first sentence of MCL 400.602(f) encompasses the full breadth of the actual- and constructive-knowledge standards.” Third, it was unclear in defining “reckless disregard” and “deliberate ignorance” what role was “played by the existence of both criminal and civil provisions in the MFCA, as compared to the civil provisions in the” federal statute. Fourth, as to “MCL 400.607(1), what does it mean to ‘cause’ a false claim to be made or presented?”Concurring in part and dissenting in part, Justice Markman agreed with the majority’s decision to affirm defendant’s unauthorized practice of medicine conviction and concurred with its conclusion that she did not have actual knowledge that the special agents “were purporting to be Medicaid patients.” But he disagreed as to whether sufficient evidence existed allowing a reasonable fact-finder to conclude that she “acted in ‘deliberate ignorance’ of the special agents’ putative Medicaid status in providing unlicensed services for which no bill could lawfully be generated. In view of the distinctive definition of ‘knowing’ set forth in MCL 400.602(f) and the appellate standard of review governing defendant’s sufficiency-of-the-evidence challenge,” he would affirm her MFCA convictions.
Whether a prosecution expert vouched for the victim’s credibility; People v. Dobek; People v. Matlock; Plain error review; People v. Jones; Waiver of claim as to the admission of text messages; Taking a position in the trial court & then seeking redress in an appellate court based on a contrary position; Czymbor’s Timber, Inc. v. Saginaw; Right to present a defense; People v. Unger; Washington v. Texas; Compliance with the established rules of procedure & evidence; People v. Yost; United States v. Scheffer; Exclusion of an expert; MRE 702; Limitations on cross-examination of the victim’s mother; MRE 403; Hearsay; MRE 801 & 802; Principle that the decision to bring charges does not lie with a victim’s mother; People v. Potts; Ineffective assistance of counsel; People v. Trakhtenberg; Failure to raise a futile objection; People v. Ericksen; Cumulative error; People v. Mayhew; Sentencing; Scoring of OV 19; People v. Hershey; MCL 777.49(c); People v. Smith; People v. Carpenter; People v. Sours; Entitlement to resentencing; People v. Rhodes
Concluding that the challenged statement by a prosecution expert was offered to show why she only sent one sample forward for more testing, the court held that there was no plain error. It also found that defendant waived any claim of error as to the admission of certain text messages, and that he was not denied his right to present a defense by the exclusion of his expert under MRE 702. Further, the trial court did not abuse its discretion in barring him from inquiring into certain topics with the victim’s (A) mother, and the court rejected his ineffective assistance of counsel claims. His cumulative error claim failed given that the court found no errors. However, it held that he was entitled to resentencing due to the erroneous scoring of 10 points for OV 19. Thus, the court affirmed his CSC III convictions, reversed the scoring of OV 19, and remanded for resentencing. He challenged a forensic scientist’s (M) statement “and in this case there was only an indication of one suspect and no consensual.” The court found that, viewed in context, it was evident she “was not giving an opinion, personal or scientific, that there was no consent between” A and defendant. M “was asked why only one particular swab was sent for further DNA testing while other items were not.” She prefaced her remarks “by explaining that she looks at the ‘allegations of the case’ to see how many DNA contributors she would expect to find. Then, depending on what those allegations are, she will send either one or two samples forward. Her comment that ‘in this case there was only an indication of one suspect and no consensual’ was not a statement of her opinion” as to whether there was consent. Rather, “her statement that there was ‘an indication’ related back to her statement that she first looks at the allegations of the case.” As to defendant’s claim the trial court erred in admitting all of a text message exchange between A and her friend, because he “took an ‘all or nothing’ approach to” their admission in the trial court, he could not now argue that it erred by not individually examining their admissibility. But the court held that his actions of standing up, yelling, and removing his coat when the jury announced the first guilty verdict “did not rise to the level of an actual interference, or an attempt to interfere, with the administration of justice.” Subtracting these points lowered his minimum guidelines range.
Evidence of other acts of domestic violence; MCL 768.27b(1); People v. Cameron; MRE 403; People v. Watkins; Probative value; People v. Railer; People v. Propp; MRE 404(b); People v. Knox; Sentencing; Scoring of OVs 4 & 10; MCL 777.34(1)(a) & (2); People v. Armstrong; People v. Drohan; MCL 777.40(1)(b); Vulnerability defined (MCL 777.40(3)(c)); Effect of the existence of a domestic relationship; MCL 777.40(2); Domestic relationship defined; People v. Jamison
Holding that the trial court did not abuse its discretion in admitting the evidence of other acts of domestic violence under MCL 768.27b(1), or err in scoring 10 points each for OVs 4 and 10, the court affirmed defendant’s convictions and sentences. He was convicted of assault and battery, assault by strangulation, and domestic violence third offense. He was sentenced to concurrent terms of 67 to 120 months for assault by strangulation, 29 to 60 months for domestic violence, and 93 days for assault and battery. He argued that the trial court abused its discretion by not excluding the evidence of his prior acts of domestic violence against the victim under MRE 403, asserting it “was unfairly prejudicial because the volume of evidence was overwhelming and confused the jury.” The prosecution presented evidence of five other such acts. The court concluded that “the evidence had significant probative value for establishing [his] propensity to physically assault the victim.” It was also relevant to her credibility, which was particularly important given that he argued she was not credible. Further, it “provided context for understanding the history of” their relationship. It was “not marginally probative evidence that risked creating unfair prejudice.” As to his claim that the amount of the other acts evidence confused the jury, the court noted that the acts all involved the same victim and showed a pattern of violence by him “against the victim, thereby adding to its probative value. The risk that the jury would be distracted by extraneous considerations, such as bias, sympathy, anger, or shock, was addressed by the trial court’s” jury instructions on the permissible use of the evidence. The prosecution’s presentation of the evidence was also “limited to factual descriptions of the events and was therefore unlikely to inflame the jurors’ passions such that they would be unable to rationally determine [defendant’s] guilt or innocence.” The record did not support that there was jury confusion about “which instances of assault they were asked to focus on.” The court further held that the record supported (1) the trial court’s finding “that the victim suffered a serious psychological injury which may require professional treatment” for purposes of OV 4 and (2) as to OV 10, that they were in a domestic relationship and “that the victim was vulnerable due to” that relationship.
Ineffective assistance of counsel; People v. Payne; People v. Schrauben; Matters of trial strategy; People v. Matuszak; Decisions as to whether to call or question witnesses; People v. Russell; A substantial defense; People v. Dixon; Failure to adequately investigate; People v. Grant; Principle that a failed strategy does not constitute deficient performance; People v. Petri; Constitutional right to an impartial jury drawn from a fair cross-section of the community; People v. Bryant; Other acts evidence; MCL 768.27b(1) & (2); Adequacy of the notice; Plain error review; People v. Carines
The court held that defense counsel was not ineffective for failing to call a witness whose testimony would contradict defendant’s, or in not objecting to certain testimony. Further, his jury venire was not constitutionally defective because it only had one African-American potential juror, and he did not show plain error due to the prosecution’s failure to comply with MCL 768.27b(2)’s notice requirement. He was convicted of felonious assault and felony-firearm. He argued that defense counsel “was ineffective for failing to investigate and call” his adult grandson (J) to corroborate his explanation of why he was carrying his gun on the day in question. However, while J stated in a sworn affidavit that he “allegedly witnessed defendant place the firearm into a pocket holster and then place that pocket holster and firearm into his front pocket, defendant testified that he had placed the firearm in his ‘waistband,’ without any mention of a pocket holster or a front pocket.” Thus, J’s testimony might “have damaged defendant’s credibility and undermined his self-defense claim, which relied heavily on the jury believing his version of events over the testimony of” the victim (his wife, T) and her daughter. The court held that defendant failed to show that defense counsel’s decision was objectively unreasonable. Further, J’s testimony “would have done nothing to refute the testimony that defendant drew the firearm, pointed it at [T], and threatened to shoot her.” As to his jury venire challenge, the court held that he could not “establish the second prong, i.e., ‘that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community . . . .’” The trial court properly denied his objection because he “failed to show that the particular makeup of the jury venire in this case occurred as a result of anything other than random chance[.]” Finally, while no written notice of the MCL 768.27b evidence appeared in the record, appellate counsel’s affidavit suggested “that the prosecution did in fact provide notice to defense counsel in some fashion.” This was bolstered by the fact that defense counsel appeared “to have been prepared to address the domestic violence issues at trial,” and effectively cross-examined T about prior instances. Defendant also failed to show that “the alleged lack of notice was outcome-determinative.” Affirmed.
Damages for injuries sustained in a collision; Impeachment of witnesses with deposition testimony; Mitchell v. Kalamazoo Anesthesiology, PC; MCR 2.308(A); Hearsay; MRE 801(c); MRE 802; Shields v. Reddo; Testimony by a party-opponent; MRE 801(d)(2); A testifying witness’s inconsistent deposition statement; MRE 801(d)(1)(A); Extrinsic evidence of a prior inconsistent statement; MRE 613(b); Interrogatory answer; MCR 2.309(D)(3); Reading deposition testimony into the record; Hileman v. Indreica; Socha v. Passino; Orders in limine; Value of business dealings; Relevance of evidence showing bias or prejudice; Lewis v. LeGrow; MRE 403; Waknin v. Chamberlain; Improper pattern evidence; Presumption jurors follow their instructions; Zaremba Equip., Inc. v. Harco Nat’l Ins. Co.; Denial of motion for a mistrial; In re Estate of Flury; Modification of orders in limine to suit the facts developed at trial; Zantop Int’l Airlines, Inc. v. Eastern Airlines; MRE 401-402; Attorney’s remarks; Reetz v. Kinsman Marine Transit; Badiee v. Brighton Area Sch.; Opening statements; Taylor v. Klahm; Hunt v. Freeman; Improper questions; In re Ellis Estate; Hayes v. Coleman; Closing & rebuttal statements; Elliott v. AJ Smith Contracting Co.; Motion for a new trial or remittitur; Gilbert v. DaimlerChrysler Corp.; Taylor v. Kent Radiology; MCR 2.611(A)(1)
Holding that defendants-Beattie Farms and Edwards did not identify any errors on appeal warranting a new trial and failed to show that the jury’s verdict should be reduced, the court affirmed. The case involved recovery of damages for injuries sustained in a collision between an SUV and a farm tractor. Edwards was driving the tractor while working for Beattie Farms. They maintained that plaintiff-Deborah France’s counsel improperly used depositions “because he did not ask foundational questions of the witnesses, which would demonstrate that the depositions were admissible.” Instead, they claimed that her “counsel merely read the deposition questions and answers into the record and let the answers stand as though proved.” They cited Justice Brennan’s dissent in Hileman. But the court found this unpersuasive. The court also noted that because “Beattie was the owner of Beattie Farms and its agent, his statements were not hearsay.” Thus, the statements he made at the deposition were not barred by the hearsay rule, and were not subject to MRE 613(b)’s requirements. Further, counsel complied with MRE 613(b). “Counsel gave Beattie the opportunity to read the deposition or interrogatory answer, allowed him to explain the differences between his statements, and Beattie Farms clearly had the opportunity to examine Beattie for further clarification. As such, the trial court did not abuse its discretion when it allowed Deborah’s counsel to proceed in this fashion” as to each of the cited examples. Deborah’s counsel used the same basic procedure with witness-C. Although C was not a party opponent, “his inconsistent statements were nevertheless not hearsay under MRE 801(d)(1)(A), and so were not barred under MRE 802. Moreover, for each instance involving Deborah’s counsel, counsel complied with the requirements of MRE 613(b).” Thus, the trial court did not abuse its discretion when it allowed her counsel to read C’s deposition into the record. “The same is true for Edwards, who was a party opponent under MRE 801(d)(2).” The court held that the “deposition testimony was substantively admissible, and, even though not required to follow the procedures stated under MRE 613(b), Deborah’s counsel adequately complied with that rule nonetheless.” The trial court did not abuse its discretion when it allowed the procedure. Thus, “Edwards and Beattie Farms did not identify any errors involving Deborah’s counsel’s use of deposition testimony.”
Effect of a National Guard dual-status technician pension on Social Security retirement benefits; 10 USC § 10216(a)(1); 32 USC § 709(e); §§ 709(a)(1)–(2); Participation in the Civil Service Retirement System (CSRS); 5 USC § 8332(b)(6); N.J. Air Nat’l Guard v. FLRA (3d Cir.); Whether the uniformed-services exception to the Windfall Elimination Provision of the Social Security Act (WEP) (§ 415(a)(7)(A)(III)) applied; Petersen v. Astrue (8th Cir.); Martin v. Social Sec. Admin. Comm’r (11th Cir.); The Social Security Administration’s (SSA) “Acquiescence Ruling” (AR 12-1(8)); Statutory interpretation; FDA v. Brown & Williamson Tobacco Corp.; Davis v. Michigan Dep’t of Treasury; United States v. Parrett; United States v. Wagner; Sebelius v. Cloer; Sunrise Coop., Inc. v. U.S. Dep’t of Agric.; Narrow construction of exceptions to a general rule; Commissioner v. Clark; M.L. Johnson Family Props., LLC v. Bernhardt; Reliance on cases under Feres v. United States; Fisher v. Peters; Rights to due process & equal protection; Effect of a circuit court split; Habibi v. Holder (9th Cir.); Roberts v. Holder (8th Cir.)
[This appeal was from the WD-MI.] The court held that a federal civil-service pension based on work as a National Guard dual-status technician does not qualify for the WEP’s “uniformed-services exception” to Social Security retirement benefits reduction. A National Guard dual-status technician “‘is a Federal civilian employee’ who ‘is assigned to a civilian position as a technician’ while maintaining membership in the National Guard.” Plaintiff-Babcock received military pay for his active-duty service in Iraq and for his inactive-duty training, but otherwise received civilian pay and was included in the CSRS. When he began receiving Social Security retirement benefits, the SSA reduced his benefits under the WEP because of his CSRS pension. He appealed under the WEP exception for payments “based wholly on service as a member of a uniformed service[,]” arguing that his CSRS pension fell under this exception. In Petersen, the Eighth Circuit held that service as a dual-status technician meets this requirement, and thus, the uniformed-services exception applies to a dual-status technician’s pension. In response, the SSA issued AR 12-1(8), which provided that Petersen only applied to Eighth Circuit residents. Later, in Martin, the Eleventh Circuit disagreed with Petersen. The district court aligned with Martin and ruled that the exception did not apply to Babcock’s situation. The court agreed, holding that the “exception does not apply simply because an individual was a member of a uniformed service while working in noncovered employment. Rather, by its plain text, the uniformed-services exception is cabined to payments that are based exclusively on employment in the capacity or role of a uniformed-services member.” An employee like Babcock only receives a CSRS pension because “they are ‘Federal civilian employee[s]’ who are ‘assigned to a civilian position.’” Accordingly, “a dual-status technician’s CSRS pension is not a payment based exclusively on employment in the capacity or role of a uniformed-services member.” The court further found that the broader statutory scheme supported that “the plain text of the exception does not encompass a dual-status technician’s CSRS pension.” The court also found that its “cases in the Feres context do not help Babcock here” and rejected his constitutional claims, noting that no case precedent provides that “the mere existence of a circuit split on an issue of statutory interpretation violates due process or equal protection . . . .” Affirmed.
Termination under § 19b(3)(j); In re Moss Minors; Children’s best interests; In re Olive/Metts Minors; In re Laster; Jurisdiction over the children; In re Brock; In re BZ; In re Long; MCL 712A.2(b)(6)(A) & (B); Parent-agency agreement (PAA)
Holding that § (j) existed, termination was in the children’s best interests, and the trial court did not clearly err by assuming jurisdiction over the children, the court affirmed termination of respondent-father’s parental rights. Petitioners-maternal great-grandparents sought termination of his rights for long-term planning purposes. Respondent contended “that the trial court clearly erred in concluding that the statutory grounds for termination were met because the guardianship was established to preserve his right to remain the father and he was never offered a” PAA and services to give him a chance to be a father. His argument did not challenge the statutory grounds relied upon by the trial court. Instead, he asserted that he should have been given a PAA and services. “However, even if this petition had been filed by a state agency, respondent was not entitled to services. Indeed, reunification services are not required when termination is the agency’s goal.” Thus, his claim that he was entitled to services was unfounded. The court held that the trial court did not clearly err in determining that § (j), “addressing the reasonable likelihood that the children would be harmed if returned to the home of the parent, was satisfied. Respondent was unable to maintain long-term employment and changed jobs frequently. He stole cars for an illegal source of income, but did not contribute financially to provide for the children’s basic needs despite a court order.” Respondent engaged in drug use, and the mother testified that he held another child hostage in an attempt to obtain funds for his use of meth. Also, “he repeatedly engaged in criminal behavior resulting in his incarceration for six of the last nine years. He was currently incarcerated, and the possibility of release was delayed until” 11/20, because he fought with another inmate. “The trial court properly found that the evidence supported this statutory ground.”