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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Motion for a preliminary injunction against the Vaccine & Mask Requirements to Mitigate the Spread of COVID-19 in Head Start Programs interim final rule; Motion for an injunction pending appeal; Administrative Procedures Act (APA); Use of an interim final rule instead of notice-&-comment rulemaking; 5 USC § 553(b)(B); Biden v Missouri; Whether the U.S. Department of Health & Human Services (HHS) had the statutory authority to issue a vaccine requirement for Head Start program staff, contractors, & volunteers
[This appeal was from the ED-MI.] In an order, the court held that plaintiffs-Head Start grantees were not entitled to an injunction against the Head Start vaccine mandate pending an appeal. It concluded they were unlikely to succeed on the merits of their claim that the HHS violated the APA when it promulgated the vaccine requirement through an interim final rule instead of notice-and-comment rulemaking. The court noted that the “HHS may use an interim final rule instead of notice-and-comment rulemaking ‘when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.’” It compared the facts in this case with those in Missouri, and concluded that, “[g]iven the similarity between the interim final rule at issue here and the rule that the Supreme Court upheld in Missouri, the plaintiffs are unlikely to prevail on their claim that the lack of notice-and-comment rulemaking violated the” APA. As to plaintiffs’ lack of statutory authority argument, the court found it likely the HHS “has the statutory authority to issue a vaccine requirement for Head Start program staff, contractors, and volunteers. The statute creating the Head Start program gives the Secretary of HHS the power to promulgate regulations to promote the health and well-being of the children in the program.” The statute gives the Secretary “broad” authority, including specifically to “remedy ‘health’ risks to children in the program.” The court again cited Missouri, where “the Supreme Court held that similar statutory language permitted HHS to promulgate a vaccine requirement for the staff of Medicare and Medicaid facilities.”
42 USC § 1983; Excessive force; Qualified immunity; Clearly established right; Sova v City of Mount Pleasant; Studdard v Shelby Cnty; Distinguishing Reich v City of Elizabethtown
The court concluded that a reasonable jury could determine defendant-police officer (Russ) violated plaintiff-estate’s decedent’s (Groom) constitutional right to be free from excessive force, and that his right was clearly established at the time. Thus, it reversed the grant of summary judgment for Russ based on qualified immunity, and remanded. Construing the record evidence in plaintiff’s favor, “Groom did not pose an imminent and serious risk when Russ fired his weapon. Russ, the closest individual, stood near the back of his vehicle 30 feet away.” Another officer (L) was providing cover with his weapon “from behind Groom. Aside from telling Russ ‘[n]ot today’ when Russ said they needed to talk, . . . Groom did not make any verbal threats. He stood still for roughly 20 seconds, lowered his knife to waist height, then made one step sideways to Russ. This was not a threatening advance or at least that is what a jury could find on this record. Even so, Russ fired the shot as soon as Groom ‘began to move.’” The court noted that Russ was aware “Groom had robbed a pharmacy. He knew that Groom had unsheathed a knife when the officers confronted him and disregarded commands to drop it. And he knew that Groom had walked to a position 30 feet away and that Groom told Russ to shoot him. But all record facts considered, Groom’s actions in the moments before the shooting did not justify lethal force. Even [L] thought that Groom had calmed down and ‘didn’t see any reason for a shot to be fired from where’ he stood behind Groom.” As to whether the right was clearly established, the court found that Sova governed here. “Both cases involved a knife-wielding man who disregarded commands to drop the weapon. Each man told officers to shoot him. And each man moved just before being shot.” While Russ tried to distinguish Sova, he could not provide a “good answer” to explain why the court should grant qualified immunity here when it denied it there. In addition, it found Reich distinguishable, as “Groom’s conduct differed materially.”
Zoning dispute; Use of a drone to take aerial photos of defendants’ property; The Fourth Amendment; Applicability of the exclusionary rule; Pennsylvania Bd of Probation & Parole v Scott; Kivela v Department of Treasury
In an order after receiving supplemental briefing, the court vacated its prior order for the scheduling of oral argument and, in lieu of granting leave to appeal, vacated the Court of Appeals judgment (see e-Journal # 75070 in the 3/22/21 edition for the published opinion). It remanded the case to the Court of Appeals “to address the additional issue of whether the exclusionary rule applies to this dispute.” The court noted that the U.S. Supreme Court in Pennsylvania Bd declined “to extend the operation of the exclusionary rule beyond the criminal trial context” and that, in Kivela, the court declined to extend it to a civil tax proceeding.
The Teachers’ Tenure Act (Tenure Act); “Performance violations” under the Revised School Code (the Code); Due process; Property interest; Distinguishing Perry v Sindermann & Soni v Board of Trs; Ryan v Aurora City Bd of Educ; Edinger v Board of Regents of Morehead State Univ; Claim that plaintiff’s teaching certificate was rendered “valueless”; Liberty interest in the right to contract; Wrongful termination claim under Toussaint v Blue Cross & Blue Shield of MI (MI); Family Medical Leave Act (FMLA)
[This appeal was from the ED-MI.] The court held that defendant-Detroit Public Schools Community District (the District) did not violate plaintiff-Hasanaj’s due-process rights by discharging him because he had no property interest in his teaching job where he failed to satisfy Michigan’s statutory tenure requirements. Hasanaj, a certified Michigan teacher, taught for 10 years in the District under a series of contracts. After year seven, he no longer received contract renewal notices, and he received “ineffective” evaluation ratings during his last three years. The District dismissed him from his teaching job based on the three ineffective ratings, as required under state law. He sued the District and some of its employees under several theories. The district court dismissed his case. The court first considered his due process claim. It concluded that he “had no protected property interest in his job because, as the Tenure Commission concluded, he did not satisfy Michigan’s statutory tenure requirements.” As he did not allege “that he satisfied the statutory probation requirements to acquire tenure, he was an at-will employee and thus lacked a protected property interest in his job.” Performance evaluations fall under the Code. “‘[I]f a teacher is rated as ineffective on 3 consecutive annual year-end evaluations,’ the school district ‘shall dismiss the teacher from his or her employment.’” The court determined that Hasanaj lacked “a protected property interest in the ‘expectation’ that the District was required to follow the teacher evaluation statute” in order to discharge him. “State law procedures that relate to property rights are not property rights.” As to his claim of a deprivation of a property interest in his teaching certificate, the court noted that he was still a licensed Michigan teacher, even though he claimed no one would hire him because of the three ineffective ratings. “A third-party’s decision not to hire Hasanaj based on a history of unfavorable performance reviews is not dictated by the State or his former employer.” The court found that no matter how he framed “his claim, he was not deprived of a protected ‘property’ or ‘liberty’ interest as required for a procedural due process claim under the Fourteenth Amendment.” As to his state-law claim under Toussaint, he could not “supersede Michigan’s tenure statutes with an express or ‘implied’ contract.” Finally, his FMLA claim was time-barred. Affirmed.
Sentencing; Scoring of OV 1; Consideration of acquitted conduct; People v Beck
In an order in lieu of granting leave to appeal, the court reversed the part of the Court of Appeals judgment (see e-Journal # 74958 in the 3/9/21 edition) affirming defendant’s 15-point score for OV 1 of the judicial sentencing guidelines, vacated the trial court’s sentence, and remanded to the trial court for resentencing. It directed the trial court on remand to rescore OV 1 at 0 points because the jury acquitted “defendant of the charges alleging that he possessed a firearm, and the facts do not establish that he possessed another type of weapon.” The court denied leave to appeal in all other respects because it was not persuaded that it should review the issue presented.
Speedy trial; The Barker factors; Barker v Wingo; People v Williams; Right of confrontation; People v Buie; Waiver; People v Kowalski; Sentencing; Cruel or unusual punishment under the Michigan Constitution; Harmelin v Michigan; People v Burkett
The court held that defendant was not denied his right to a speedy trial or his right of confrontation, and he failed to establish that his mandatory minimum sentence was unconstitutional. He was convicted of AWIGBH and domestic violence, third offense, for throwing his then girlfriend on the ground, breaking her leg, then bouncing up and down on top of her while slapping her face and making her look at him. The trial court sentenced him as a fourth-offense habitual offender to 25 to 50 years for the former and 40 to 60 months for the latter. On appeal, the court rejected his argument that the trial court erred by violating his right to a speedy trial. It found that, “of the four Barker factors, only the second factor support[ed] that defendant’s right to a speedy trial was violated, and that factor only minimally weighed against the prosecution. The other three Barker factors weighed against” his claim. The court also rejected defendant’s contention that he did not execute a valid waiver of his right to confront witnesses, noting he failed to rebut “the presumption that his counsel’s waiver of defendant’s right to confrontation was reasonable trial strategy, and so his argument does not warrant appellate relief.” Finally, the court rejected his argument that his 25-year mandatory minimum sentence was excessive in violation of the Michigan Constitution’s prohibition of cruel or unusual punishments. Defendant “has indeed demonstrated that there is at least one state in which the penalty for his crime would be less severe. However, in the other state that defendant provided current law for, the penalty for his crime could be more severe.” As such, the third factor, like factors one and two, did not support his position. Moreover, he “failed to articulate any unique circumstances which would overcome the presumption that the statutorily enhanced sentence is proportionate to the offense.” Affirmed.
Constitutionality of 18 USC § 2423(c) (criminalizing “illicit sexual conduct in a foreign place”); Whether Congress has the authority to regulate an American citizen's conduct in another country under the Foreign Commerce Clause (US Const Art I, § 8, cl 3); Congress’s authority under the Necessary & Proper Clause (Art I, § 8, cl 18); Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution & Child Pornography (the Optional Protocol); Missouri v Holland
The court affirmed defendant-Rife’s conviction under § 2423(c), which criminalizes “illicit sexual conduct in a foreign place,” holding that the statute was a valid exercise of Congress’s power under the Necessary and Proper Clause’s authority to enact treaties. After teaching in Cambodia, Rife, a U.S. Citizen, returned to the U.S. and was indicted on charges of illicit sexual conduct in a foreign place for engaging in noncommercial sexual conduct with two of his minor Cambodian students. He moved to dismiss the indictment, arguing that Congress lacked the authority to indict him under the Foreign Commerce Clause or the Necessary and Proper Clause. The district court did not address the Commerce Clause argument, but denied dismissal under the Necessary and Proper Clause, which authorized Congress to implement treaties—in this case, the Optional Protocol. He then entered a conditional plea of guilty to one count. On appeal, the court first considered his argument under the Foreign Commerce Clause. It held that because the conduct was “noncommercial,” involving no commerce or trade of any kind, his conviction under § 2423(c) “was not an exercise of Congress’s power to ‘regulate Commerce with foreign Nations.’” Thus, it could not stand under the Commerce Clause. The court then considered whether his conviction could be upheld under the Necessary and Proper Clause’s power to enact treaties. It cited Holland, which involved the Migratory Bird Act of 1918, in which the Supreme “Court held, in a sentence regarded since as ipse dixit: ‘If the treaty is valid there can be no dispute about the validity of the statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government.’” The court concluded that holding was binding. “The Optional Protocol is undisputedly a valid treaty; and we cannot say that § 2423(c) as applied to noncommercial sex offenses against children is so unrelated to the treaty’s provisions as to put this case beyond the Court’s holding in Holland.”
Trademark; Alleged violations of the Lanham Act; 15 USC §§ 1114 & 1125; Motion for a preliminary injunction; Likelihood of success on the merits; Consumer confusion; Frisch’s Rests, Inc v Elby’s Big Boy of Steubenville, Inc; Effect of a plaintiff failing to analyze the Frisch factors in its briefing; Reliance on El Greco Leather Prods Co v Shoe Worlds, Inc (2nd Cir)
The court agreed with the district court that plaintiff-Sunless “forfeited its opportunity to show consumer confusion under the Frisch factors” by making no attempt to analyze them. Further, it held that the district court did not err in determining Sunless failed to show it was entitled to a preliminary injunction under El Greco. Thus, the court affirmed the denial of Sunless’s motion for a preliminary injunction in this action alleging violations of the Lanham Act. Sunless “sells tanning booths and accompanying spray tan solution under the ‘Mystic Tan’ mark.” Defendant-Palm Beach owned a number of the “booths, and it used to buy Mystic Tan-branded tanning solution to use in them. Indeed, it had no choice, because the Mystic Tan booths were designed to accept only Mystic Tan solution. But now Palm Beach has jury-rigged the booths so that they will operate with its own distinctly branded spray tan solution, unapproved by Sunless.” In seeking a preliminary injunction, Sunless asserted that “the jury-rigging is likely to confuse consumers into believing they are getting a genuine ‘Mystic Tan Experience’ when they are not.” The court noted that the usual way to prove consumer confusion in this circuit is to use “the Frisch factors, an eight-factor, totality-of-the-circumstances test.” To the extent Palm Beach suggested “the district court was ‘required’ to analyze the Frisch factors despite the parties’ failure to brief them,” this was mistaken. The court noted it had “never suggested that when the parties themselves have failed to offer any argument under Frisch, the district court must make the parties brief the factors or face reversal.” Sunless sought to show consumer confusion under El Greco, a Second Circuit case, casting “Palm Beach’s workaround (tricking the Mystic Tan-branded booths into accepting non-Mystic Tan solutions) as akin to what happened in” that case. However, the court concluded that it did not “do enough to show that it was entitled to relief under its proposed El Greco test.” It did not present enough evidence to show “that the ‘Mystic Tan Experience’ is an indivisible whole.” In the absence of “such a showing, Sunless could not show a likelihood of consumer confusion under El Greco.” Thus, it was unable to “establish a likelihood of success on the merits.”
Termination under §§ (c)(i), (g), & (j); Reasonable reunification efforts; Child’s best interests
Holding that the DHHS’s reunification efforts were reasonable, that §§ (c)(i), (g), and (j) were established, and that termination was in the child’s best interests, the court affirmed the order terminating respondent-mother’s parental rights. A foster care specialist “testified that respondent was provided numerous housing resources, including Section 8 information, Housing Commission information, and applications, but she never followed up with any of them. At the time of the termination hearing, respondent was living with a friend, had not allowed the home to be assessed, and had not requested any” further assistance. She was also provided “services to address her substance abuse issue, but she failed to either complete or benefit from” them. As to help with visitation, “during the period just before the termination hearing, respondent was given bus tickets and still did not attend visits.” The court concluded that she “was given a meaningful and adequate opportunity to participate in and benefit from services, but she failed to do so. Given her failure to fully take advantage of” those that were offered, she could not show she would have done better if others had been provided. As to statutory grounds for termination, “the conditions that brought the child into care were respondent’s substance abuse, lack of employment, and lack of housing. While respondent did obtain employment, she never secured stable housing or rectified her substance abuse problem, despite” the DHHS’s reasonable efforts. She “continued to miss screens, never completed substance abuse counseling, and had stopped trying to find suitable housing. Given the length of time that the child had been in care and respondent’s minimal progress, there was also no reasonable likelihood that the conditions would be rectified within a reasonable time considering the child’s age.” Finally, as to the child’s best interests, even if the trial court gave insufficient “weight to the bond between respondent and the child, that one factor does not outweigh the other factors that supported termination, including the child’s need for permanency, the foster parents’ ability to provide permanency, respondent’s lack of compliance with her service plan, respondent’s inconsistent visitation, the fact that the child was comfortable and safe in her foster home, and the possibility for adoption.”