Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Attorney fees for a prevailing social security claimant; 42 USC § 406(b); Equal Access to Justice Act (EAJA); 28 USC § 2412; Contingency-fee agreements for § 406(b) fee awards; Gisbrecht v Barnhart; Rodriquez v Bowen; The reasonableness analysis; Treating the effective hourly rate as a primary focus; Standard rate analysis; Hayes v. Secretary of Health & Human Servs
The court held that the district court did not abuse its discretion by reducing plaintiff’s counsel’s attorney-fee award in this social security disability benefits case where it reasonably considered both the $125 EAJA rate and counsel’s ordinary rate in its standard rate analysis. The district court reversed the administrative decision denying plaintiff benefits and ordered the case remanded for further administrative proceedings. It awarded her counsel $7,500 in attorney’s fees under the EAJA, pending a final decision or award. Plaintiff had a contingency agreement with counsel for 25% of any past-due benefit award, the maximum percentage allowed under § 406(b). When she was finally granted benefits, her past-due benefits totaled $124,821.70. Counsel moved for the $31,205.43 in fees, less the initial $7,500 award, but the district court awarded her $17,400. The court explained that it had little occasion to consider contingency-fee agreements for § 406(b) fee awards since the Supreme Court issued Gisbrecht, which held that contingency-fee agreements within the 25% “cap are ‘not to be viewed as per se reasonable.’” Rather, the court affords such agreements a “rebuttable presumption,” under which “the contingency-fee agreement is the ‘starting point for the court’s analysis’ and courts must ‘give [such agreements] close attention’ and ‘due deference.’” In Hayes, the court held that if “a ‘calculated hourly rate (i.e., effective rate) is ‘less than twice the standard rate for such work in the relevant market,’ then it is ‘per se reasonable.’” However, if it “is equal to or more than ‘twice the standard rate,’ ‘then the court may consider arguments designed to rebut the presumed reasonableness of the attorney’s fee.’” Counsel argued “the district court’s ‘primary focus’ was on the effective hourly rate under the lodestar method, contravening Gisbrecht’s instruction to look first to the contingency agreement, then test it for reasonableness.” The court disagreed. The district court took the $31,205.43 requested award, divided it by the 34.8 hours worked, and arrived at “an effective hourly rate of $896.71, which it found excessive relative to the statutory rate in the EAJA as well as Counsel’s ordinary rate.” In addition, it “considered other factors, like the complexity of the case, counsel-induced delay, and the fact that the remand stemmed from the Commissioner’s unopposed motion for remand, in finding that the requested fee award would constitute a windfall.” The district court “acknowledged Counsel’s skill and expertise but reasonably concluded that the case did not reach a level of complexity or effort that merited the maximum award.” Affirmed.
42 USC § 1983 action alleging excessive force; Qualified immunity; Whether a “clearly established” right was violated; Aiming a chemical spray launcher at & pepper spraying demonstrators; Launching a tear gas canister at a demonstrator; The Fourth Amendment reasonableness test for the use of “deadly force”; Palma v Johns; Municipal liability; Alleged ratification of unconstitutional conduct by insufficiently investigating & punishing it; Grand Rapids Police Department (GRPD)
[This appeal was from the WD-MI.] The court held that two of the defendants-police officers (Johnson and Bush) were entitled to qualified immunity and that defendant-City was also properly granted summary judgment on plaintiffs’ municipal liability claims. But it concluded a reasonable jury could find that defendant-Reinink used excessive force by deploying a tear-gas canister “at close range, such that it could have exerted lethal force” against a demonstrator who did not present “‘an imminent threat of harm.’” Plaintiffs-Hart and Guzman sued the City and several officers for events that occurred during a “Black Lives Matter” demonstration. Bush “fired pepper spray at Hart’s head for two to three seconds.” Video recordings by bystanders showed “Reinink left the police line to confront Hart after Sergeant Bush began pepper spraying him and Hart had started to retreat. As Hart was turning back toward the police line, Officer Reinink launched a” cannister at him from a few feet away. “Reinink testified that he believed the canister—which he loaded without a witness, contrary to GRPD policy—contained Muzzle Blast[,]” a powder dispersion round used in close deployment. But it was instead Spede-Heat, a tear-gas “designed to be launched into a target area and not directly at a subject.” On appeal, Guzman argued that “Johnson employed excessive force by pointing the launcher, which she believed was a firearm, at her, which caused [her] to fear for her life.” But the court agreed with the district court that plaintiffs failed “produce ‘any existing precedent’” that showed Johnson had violated a clearly established right. It also held that none of the cases Hart cited established “that it was ‘beyond debate’ at the time of this incident that Sergeant Bush’s pepper spraying of Hart was unlawful.” However, the court concluded that, viewing “the record evidence in the light most favorable to Hart … Officer Reinink did deploy Spede-Heat at close range, such that it could have exerted lethal force.” The court assessed the “reasonableness of the use of deadly force” under the Palma factors and held that while the crowd could have presented a danger, “[i]n the moments before Officer Reinink deployed deadly force, Hart did not” pose a credible threat to the safety of the public or an officer. A “‘reasonable jury could find that [Officer Reinink] used excessive force’ when he fired Spede-Heat at Hart at point-blank range.” And under the court’s precedent, it was clearly established in 5/20 that deploying “deadly force against an unarmed individual who posed no imminent threat to officers, such as Hart, was constitutionally impermissible.” The court affirmed summary judgment for Johnson, Bush, and the City, reversed summary judgment for Reinink, and remanded.
Prosecutorial error; Referring to the complainant as “the victim”; People v Wisniewski; Sufficiency of the evidence; CSC III; MCL 750.520d(1)(b); “Force or coercion”; MCL 750.520b(1)(f)(i); “Sexual penetration”; MCL 750.520a(r); CSC IV; MCL 750.520e(1)(b); “Sexual contact”; MCL 750.520a(q); Corroboration
The court held that the prosecutor did not commit error by referring to the complainant (HW) as “the victim,” and the evidence was sufficient to support defendant’s convictions of CSC III and IV and attempted CSC IV. His convictions arose out of his sexual assault of HW, who was 16 at the time. In a prior appeal, the court vacated his convictions based on “defense counsel’s failure to object to the improperly admitted evidence of defendant’s prior convictions.” At the second trial, the prosecutor referred to HW as the “victim” during jury selection, opening statement, witness testimony, and closing argument. Defense counsel did not object, and indicated he was satisfied with the jury instructions, which included the standard instruction that the attorneys’ questions and statements were not evidence. The jury convicted defendant of all counts. On appeal, the court rejected his argument that the prosecutor denied him a fair trial by repeatedly referring to HW as “the victim.” It noted in Wisniewski that “‘no published Michigan decision or other authority of which we are aware precludes the prosecution from referring to the complainant as ‘the victim.’” The court also rejected his claim that the evidence was insufficient to support his convictions. “[I]t was not improper for the jury to find that HW’s testimony alone was sufficient to demonstrate beyond a reasonable doubt that defendant committed these offenses.” First, there “was sufficient evidence from which the jury could find beyond a reasonable doubt that defendant used force to commit penetration.” Next, considering “all of the evidence of defendant complimenting HW’s appearance, going inside the house after her, and the actions he took toward her on the couch, it was reasonable for the jury to conclude that this was done for a sexual purpose.” HW’s testimony about him “pinning her wrists above her head when he made this sexual contact constituted force to support the charge.” Finally, while defendant “did not make a direct argument about his attempted CSC IV conviction, HW’s testimony that [he] attempted to force her to touch his penis constituted sufficient evidence from which a reasonable jury could find” him guilty. “There was conflicting evidence from various witnesses at trial, but it was the role of the jury to hear that evidence and make its findings of fact.” Affirmed.
Sentencing; Scoring of OV 6; MCL 777.36(1)(b) & (2)(b); Malice; People v Belkin (Unpub); Effect of a no-contest plea; People v Franklin; “Combative situation”; People v Rodriguez; “Victimization”; People v Cannon; Scoring of OV 10; Exploitation of a “vulnerable victim”; MCL 777.40(1)(b); “Exploit”; MCL 777.40(3)(b); “Vulnerability”; MCL 777.40(3)(c); People v Huston; “Domestic relationship”; People v Jamison; Ineffective assistance of counsel; Failure to make a futile objection
The court held that the trial court did not err in scoring OVs 6 and 10, and defendant’s trial counsel was not ineffective for failing to object. She pled guilty to second-degree murder and felony-firearm in the shooting death of her boyfriend. The trial court sentenced her to 20 to 40 years and denied her motion for relief from judgment. On appeal, the court rejected her argument that the trial court erred in scoring OV 6, noting the trial court did not “err when it found by a preponderance of the evidence that the victim’s death did not ‘occur[] in a combative situation or in response to victimization of the offender by the decedent.’” It found “the killing did not arise out of a combative situation because defendant killed the victim with two ‘tightly clustered shots’ in the back of the head, which could not have occurred if the victim had actively been turning toward defendant at the time.” And the fact defendant did not have “any defensive wounds was relevant to whether the situation was combative.” Further, although “there was evidence that defendant had been victimized by the victim,” the court was not “definitely and firmly convinced that the trial court’s finding that the shooting ‘was not in response to any contemporaneous threat of victimization’” was erroneous. The court also rejected her claim that the trial court erred in scoring OV 10, noting that “while there may be circumstances in which the presence of a gun next to an alert victim would not justify the assessment of 10 points under OV 10, the evidence in this case demonstrated that the victim was in a completely vulnerable position when he was shot twice.” Finally, the court rejected her contention that her trial counsel was ineffective for failing to raise a challenge to the trial court’s assessments of OVs 6 and 10, noting that “because ineffective assistance of counsel cannot be predicated on a meritless motion, defendant has not demonstrated that trial counsel’s representation fell below an objective standard of reasonableness.” Affirmed.
Sufficiency of the evidence to support convictions of possessing crack cocaine with the intent to distribute, FIP, & possessing a firearm in furtherance of a drug-trafficking crime; Constructive possession; Jury instructions on third-party guilt; Sixth Circuit Pattern Criminal Instruction (PCJI) 8.08(2); Expert testimony; FRE 702(a); Other acts evidence; FRE 404(b); Instagram images; FRE 403; Cumulative error; Prosecutorial misconduct; Witness intimidation; Closing remarks
The court held that there was sufficient evidence to support the jury’s determination that defendant-Fairley constructively possessed the drugs and firearms in a car and intended to exercise dominion and control over them. It also rejected his challenges to a third-party guilt jury instruction and the district court’s evidentiary rulings, and his prosecutorial misconduct claim. A jury convicted Fairley of possessing with the intent to distribute crack cocaine, FIP, and possessing a firearm in furtherance of a drug-trafficking crime for dealing drugs in a convenience store parking lot. He argued that there was insufficient evidence to support his convictions. The drugs and firearms were found in a car where Fairley was sitting. He argued they belonged to a third party. The government offered evidence that the contraband was discovered in the center console right next to Fairley. He had initially admitted to selling marijuana after a law enforcement officer told him that he had seen him conduct hand-to-hand transactions. Marijuana as well as crack was found in the console. Thus, it was reasonable to conclude that if he knew the marijuana was in the console, he also knew of the crack, and constructively possessed it. The firearms were clearly visible “on top of the center console area, to Fairley’s immediate left, within arm’s reach.” In addition, he “had a history of exercising dominion and control over the” car. He next argued that the third-party guilt jury instructions confused the jury. His “defense centered on the theory that” another person (W) alone, or someone else with access to the car, possessed the contraband. The district court gave PCJI 8.08(2). The court concluded that “the instruction operated as it should; it ensured that Fairley would neither be held responsible for someone else’s conduct nor excused of his own.” It also found no abuse of discretion in the district court allowing a police officer to testify as an expert regarding the drug trade. Further, the court upheld the district court’s decision to admit Fairley’s statements to a police officer about his prior drug trafficking and firearms possession under Rule 404(b) where it showed that Fairley had crack distribution locations that were already set. The court found that any evidentiary error was harmless. Finally, it determined there was no prosecutorial misconduct. Affirmed.
Attempt to remove a candidate from the ballot in the 8/24 primary election; Michigan Campaign Finance Act (MCFA); MCL 169.215(1); Affidavit of identity (AOI); MCL 168.558(1), (2), & (4); Whether plaintiff’s claim for declaratory relief actually sounded in mandamus; Requirements to obtain mandamus relief; Mootness; Exception for issues of public significance that are likely to recur but evade judicial review; Davis v Secretary of State; Due process; Time limitations for a response to a summary disposition motion; Prejudice; Court of Claims (COC)
Concluding this case was similar to Davis, the court addressed the merits of the underlying issue related to removal of a candidate from the 8/24 primary ballot, although it was moot as a practical matter. It found that the COC was correct that plaintiff-Charette’s claim for declaratory relief sounded in mandamus and “that he was not entitled to mandamus relief.” Thus, the court affirmed summary disposition for defendant on plaintiff’s claims that defendant wrongfully failed to remove the name of a competing candidate (S) for state representative from the ballot. This case was “similar to Davis in two respects. First, as in Davis, this case is moot. The relief Charette seeks (or sought) relates to an election that has already occurred.” Thus, the court could not grant relief. “Second, like Davis, the issue is likely to reoccur without redress.” So it exercised its “discretion to address the merits of the underlying issue.” Plaintiff argued the COC “improperly treated his complaint as if he were seeking mandamus rather than a declaratory judgment.” The court found no merit in this because the COC “properly considered the substance of Charette’s claim, which sounded in mandamus.” Because plaintiff’s “action sought to compel action by election officials, the gravamen of his claim sounded in mandamus, and the [COC] did not err by considering his claim in that context despite the label that he chose to give it.” Further, it “properly denied his requested relief for at least two reasons: (1) the lack of a legal right to remove [S] from the ballot, and (2) the lack of a clear legal duty on the behalf of defendant to do the same.” While plaintiff relied on the MCFA “to satisfy the legal right and legal duty elements of mandamus[,]” the court found this “reliance was misplaced.” Reviewing the relevant statutes, it concluded that they “create a clear legal duty that a county must not certify the name of a candidate who has failed to submit a sufficient” AOI. But plaintiff did not establish that they “establish a clear legal duty on the part of defendant regarding the certification of candidates. Defendant has only the statutory duty to issue declaratory rulings to implement the MCFA, . . . and the Bureau of Elections responded to Charette’s complaint. Because defendant does not have a clear legal duty to remove [S] from the ballot” based on an allegedly deficient AOI, Charette’s claim against defendant was “clearly unenforceable as a matter of law.”
Action seeking payment of a claim against a trust; Subject-matter jurisdiction; MCL 700.7611(a); MCL 700.7609(1)(b); 700.1302 & 1303; Venue; MCL 700.7204(1); The place where a trust may properly be registered; MCL 700.7209; Transfer of a trust’s principal place of administration; MCL 700.7108(4) & (5); MCL 700.7205(1); In re Stanley A Seneker Trust (Unpub)
The court held that the probate court erred by dismissing plaintiff’s complaint for improper venue. Plaintiff claimed he and the decedent entered into a contract prior to her death, stipulating he would receive a percentage of the property at issue. He accused defendants (co-trustees of the decedent’s trust) of breaching this contract or converting the proceeds of the property by not paying him what he was due. The probate court found venue was improper, resulting in the dismissal of the complaint. On appeal, the court noted that “[c]ontrary to the approach of the probate court, the inquiry at this juncture is not whether plaintiff is a qualified beneficiary entitled to challenge a transfer of the principal place of administration; the relevant inquiry is whether a transfer of the principal place of administration already occurred such that venue could not lie in a county in Michigan or such that the probate court should have declined jurisdiction because the principal place of administration had validly been transferred to Illinois.” Where there was “no claim that the co-trustees provided the notice required by MCL 700.7108(4), pursuant to” Seneker, it was not shown “that the transfer of the principal place of administration was validly effectuated. Thus, the probate court’s interpretation of the relevant statutory provisions went beyond the plain language to include the probate court’s view of how the statute should operate.” Reversed and remanded.