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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Excessive force claims under 42 USC § 1983; Turner v. Scott; Failure to act to prevent excessive force; Floyd v. City of Detroit; Qualified immunity; Shreve v. Franklin Cnty.; Individual liability; Ghandi v. Police Dep’t of Detroit; Cases involving difficulty identifying the perpetrators; Binay v. Bettendorf; Burley v. Gagacki (Burley I); Pershell v. Cook (Unpub. 6th Cir.); Totman v. Louisville Jefferson Cnty. Metro Gov’t (Unpub. 6th Cir.); Combs v. Wilkinson; Thornton v. Spooner (Unpub. 6th Cir.)
[This appeal was from the ED-MI.] The court held that because the evidence could permit a reasonable jury to find that each defendant-deputy either committed, or observed and failed to stop, the alleged excessive force used during plaintiff-Fazica’s strip search and pretrial detention, the district court properly denied their motion for summary judgment based on qualified immunity. The case arose after Fazica was taken into custody for drunk driving. The deputies claimed qualified immunity, challenging her case based only on her inability to prove each individual defendant’s alleged constitutional violations—she had been placed in a “spit mask” immediately upon reaching the jail. The only question before the court was whether a reasonable jury could find each individual defendant liable. It noted that even though Fazica could not see her assailants, she could hear their voices. Importantly, under Floyd, “a police officer who fails to act to prevent the use of excessive force may still be held liable where ‘(1) the officer observed or had reason to know that excessive force would be or was being used, and (2) the officer had both the opportunity and the means to prevent the harm from occurring.’” Thus, the court rejected defendants’ argument that they were entitled to summary judgment because Fazica could not see “who was the one to twist her arm behind her back, rip her pants off, touch her genitals, etc.” The court reviewed other § 1983 cases involving difficulty with identifications and held that Binay, Burley, and Pershell “stand for the proposition that where a plaintiff who was unable to identify clearly which officers committed specific acts during the incident produces evidence that places an individual defendant in a small group of officers that committed allegedly unconstitutional acts within each other’s presence, the plaintiff’s claim against that defendant may survive summary judgment.” Defendants unsuccessfully tried to distinguish these cases as involving officers’ attempts at concealing their identity. The small size of the team, its “interdependent work in close quarters,” Fazica’s testimony, the officers’ testimony, and a case report could convince a jury that each individual did himself, or saw another colleague, use excessive force. The court was not persuaded by their reliance on the fact that Fazica failed to sue one member of the extraction team where he could not have committed every alleged act of unconstitutional conduct, and the named defendants may be held liable for observing him do so even if he had. Affirmed.
Sentencing for indecent exposure by a sexually delinquent person; People v. Kelly; MCL 750.335a(2)(c); Optional alternative sentence; MCL 767.61a; Effect of the adoption of the legislative guidelines; A Class A felony subject to the guidelines; MCL 777.16q; Presumption that the Legislature is aware of existing laws; People v. Rahilly; The in pari materia rule; People v. Butler; Reading the Penal Code & the Code of Criminal Procedure in pari materia; People v. Washington; People v. Smith; Individualized sentencing; People v. Sabin; The rule of lenity; People v. Johnson; People v. Wakeford; Whether a provision is ambiguous; People v. Gardner; Whether Const. 1963, art. 4, § 25 was violated by the Sentencing Guidelines Act; Advisory Opinion re Constitutionality of 1972 PA 294; People v. Meeks; People v. Hughes; Consideration of People v. Frontczak & In re Boulanger
On remand from the Supreme Court, the court, reading the relevant provisions of the Code of Criminal Procedure (CCP) and the Penal Code (PC) in pari materia, held that trial courts have the option to sentence a defendant convicted of indecent exposure by a sexually delinquent person to “1 day to life” under MCL 750.335a(2)(c) or to a term consistent with the advisory guidelines. It found that the rule of lenity did not apply, and rejected defendant’s claim that the Sentencing Guidelines Act violated the Michigan Constitution. He was originally sentenced within the guidelines to 25 to 70 years. The court previously determined that “trial courts must sentence a defendant convicted of indecent exposure as a sexually delinquent person consistently with the requirements of MCL 750.335a(2)(c).” The Supreme Court vacated that opinion and remanded for consideration of “what effect, if any, the adoption of the guidelines ‘had on a trial court’s options in sentencing a defendant convicted of indecent exposure by a sexually delinquent person.’” The court concluded that the guidelines “provide another option or alternative, in addition to the sexual delinquency scheme,” in sentencing such defendants. While defendant suggested that “sexual delinquency is not an offense, but rather an alternative sentencing scheme that only attaches to specified predicate” felonies and thus, sexual delinquency fell outside the guidelines, the court found that this was “either an oversimplification or mischaracterization of the law.” Reading MCL 750.335a and MCL 777.16q in pari materia, and considering Kelly and Smith, the court concluded that the most rational construction was that the PC “provides judges with certain options, not mandates, when confronted with an individual convicted of indecent exposure as a sexual delinquent.” A trial court is permitted to “consider sentencing options consistent with the guidelines, particularly when” it determines that factors governed by the CCP, “such as an offender’s status as a habitual offender, supply an appropriate mechanism ‘to enhance the punishment imposed upon those who have been found guilty of more serious crimes and who repeatedly engage in criminal acts.’” While the Supreme Court suggested that Frontczak and Boulanger might be relevant, the court found that they were not. It vacated defendant’s sentence and remanded for further sentencing proceedings.
Ineffective assistance of counsel; Smith v. Spisak; People v. Trakhtenberg; People v. Uphaus; People v. Ginther; Prejudice; People v. Jordan; Matters of trial strategy; People v. Dixon; A substantial defense; People v. Chapo; Judicial bias; People v. McDonald; People v. Stevens; People v. Conyers; MRE 611(a) & 614(b); Sentencing; Scoring of OVs 8 & 19; MCL 777.38(1)(a); People v. McGraw; Asportation; People v. Barrera; People v. Spanke; People v. Cox; MCL 777.49(c); People v. Smith; People v. Ericksen; People v. Barbee; People v. Endres
Rejecting defendant’s ineffective assistance of counsel and judicial bias claims, and concluding that the trial court properly scored OVs 8 and 19, the court affirmed his CSC I conviction and sentence. He contended that he gave defense counsel the names of approximately 15 witnesses who should have been called to testify to specific instances when the victim “denied having sexual contact with him.” But the record indicated “that defense counsel’s decision not to call these witnesses was a reasonable trial strategy and did not deprive defendant of a substantial defense.” Given that the victim “admitted to the denials herself, the failure to call defendant’s identified witnesses in no way deprived [him] of a substantial defense.” As to his claim that defense counsel should have impeached the victim’s testimony by recalling a police witness to the stand, the record showed that defense counsel took measures to impeach the victim “and had a strategic reason for his chosen method of impeachment.” Further, counsel made a strategic decision as to “the extent to which he would confront” her with her prior denials so as not to appear to be bullying her, and the court would “not second-guess that reasonable strategic decision.” As to defendant’s claim of judicial bias, the court found that the trial court’s questions simply “followed up and clarified a line of questioning pursued by both parties,” and he did not point to any “record evidence suggesting any bias of the trial court in favor of the prosecution.” Finally, the court held that the trial court did not err in scoring 15 points for OV 8 and 10 points for OV 19. As to the former, it concluded that a preponderance of the evidence supported the determination that defendant moved the victim “to a place of greater danger when he brought her into his bedroom where he could sexually assault her without interference from others.” As to the latter, his threat to the victim (that if she revealed “they had sex, officials could remove her from her mother’s care”) deterred her from reporting the crime, and his “move to Florida prevented an officer from contacting him to investigate” the case.
Sufficiency of the evidence; Second-degree murder; People v. Bailey; People v. Smith; Malice; People v. Werner; People v. Bulls; People v. Kanaan; People v. Lockett; People v. Carines; People v. Unger; Great weight of the evidence; People v. Cameron; People v. DeLisle; Sentence; Proportionate & reasonable sentence; People v. Anderson; Ineffective assistance of counsel; Failure to request a jury instruction on the necessarily included lesser offense of voluntary manslaughter; People v. Mendoza; People v. Roper; People v. Heft; People v. Stewart (On Remand)
The court held that the prosecution presented sufficient evidence to support defendant’s conviction of second-degree murder. Also, the jury’s verdict was not against the great weight of the evidence, and he was not entitled to resentencing. Finally, he was not denied the effective assistance of counsel. He was convicted of second-degree murder, felon in possession (FIP), and felony-firearm. He was sentenced to concurrent prison terms of 28 to 56 years for the murder conviction, and 3 to 5 years for the FIP conviction, to be served consecutive to a 2-year term for his felony-firearm conviction. Defendant fatally shot his 33-year-old nephew, W. He argued that the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that he acted with the requisite malice to sustain his conviction of second-degree murder. The prosecution presented evidence establishing that, after the argument between defendant and W ended, W exited defendant’s house. W was “unarmed and walking away from defendant’s house when defendant went outside and discharged his gun toward [W], lethally striking him in his chest. Witnesses heard defendant declare, ‘Motherf***er, I told you to go home.’” The evidence was sufficient to permit a rational trier of fact to infer beyond a reasonable doubt that he possessed the requisite malicious intent for second-degree murder. Further, evidence showed that after the crime he “fled the scene, hid the firearm, and lied to the police about his involvement.” Such evidence further supported a finding of malice. In sum, the evidence of the nature and circumstances surrounding W’s “killing sufficed to enable a jury to rationally infer that, at a minimum, defendant acted with the intent to cause great bodily harm when he discharged a loaded handgun at an unarmed man as the man was walking away.” Defendant essentially argued that the evidence failed to sustain the conviction because the jury should have believed his version of the events. However, his “reliance on the weight and credibility of his own testimony ignores that when evaluating the sufficiency of evidence, this Court must resolve all conflicts in the evidence in favor of the prosecution. This deferential standard of review is the same whether the evidence is direct or circumstantial." The jury heard his “testimony and accorded the weight it saw fit, and this Court will not interfere with the trier of fact’s role of determining issues of weight and credibility.” Affirmed.
Double jeopardy; People v. Smith; People v. Dawson; U.S. Const. amend. V; Const. 1963, art. 1, § 15; People v. Ackah-Essien; Prosecution’s good-faith effort to admit evidence; People v. Seals; Oregon v. Kennedy; Jury instruction on use of the victim’s alleged prior inconsistent statements; Waiver; People v. Kowalski; Viewing instructions as a whole; People v. Holt; M Crim JI 4.5(1) & (2); Ineffective assistance by not objecting to the jury instructions; People v. Payne; People v. Trakhtenberg; People v. Carbin; People v. Hoag; Failure to raise a futile objection; People v. Putnam; Failure to request inspection of privileged documents; People v. Stanaway; Prosecutorial misconduct; People v. Bennett; People v. Brown; People v. Brownridge (On Remand); Commenting on the credibility of a witness; People v. Bahoda; People v. Dobek; People v. McElhaney
The court held that double jeopardy did not bar defendant’s second trial. Also, his instructional error, ineffective assistance, and prosecutorial misconduct claims failed. He was convicted of CSC I. Defendant argued that “his retrial was barred by double jeopardy because the prosecutor committed prosecutorial misconduct intended to provoke” his motion for a mistrial. He moved for and obtained a mistrial during his first trial. Thus, “to invoke the protection of the Double Jeopardy Clause he must establish from the objective facts and circumstances of the case that the prosecutor intended to provoke the defense to seek a mistrial.” De novo review of the record revealed “no objective facts or circumstances to support defendant’s argument that the prosecutor intended to goad defense counsel into moving for a mistrial.” Rather, the record supported “the trial court’s finding that the prosecutor acted in a good-faith effort to admit evidence believed relevant to show defendant’s consciousness of guilt.” The court also found no merit to his “argument that the prosecutor sought to goad the defense to move for a mistrial because the first trial was not going well.” He contended that the victim’s testimony at the first trial contained discrepancies. However, de novo review of the record showed that during his first trial, the victim “testified to being abused by defendant from age 11 until leaving her home at age 18, and when questioned by the prosecutor, she explained the discrepancies between her trial testimony and earlier statements. The record reflects that she testified that there were so many instances of repeated sexual abuse that it made it hard for her to pinpoint specific dates, times, and details of the numerous incidents of sexual abuse over the years.” The record also showed that the prosecutor knew in advance that her “testimony would differ from her previous statements and the prosecution took steps to deal with that in its examination of” the victim. Affirmed.
Sentencing; Scoring of OVs 3, 4, & 10; MCL 777.33(1)(e) & (f); MCL 777.34(1)(a) & (2); Reliance on a victim’s impact statement; People v. Earl; Principle that feelings of being unsafe support a 10-point score for OV 4; People v. Gibbs; MCL 777.40(1)(b); Exploit defined; MCL 777.40(3)(b); Vulnerability defined; MCL 777.40(3)(c); MCL 777.40(2); Exploiting a victim’s agedness; People v. Piotrowski; People v. Huston; Whether defendant was entitled to resentencing; People v. Francisco; Claim that the sentence was unreasonable; Effect of a within guidelines sentence; MCL 769.34(10); People v. Jackson; People v. Schrauben
The court held that the trial court did not err in scoring 10 points each for OVs 4 and 10, and that the error in scoring points for OV 3 did not require resentencing because subtracting them did not alter defendant’s guidelines range. It also rejected his claims that his within guidelines sentence was unreasonable, and that he was sentenced based on inaccurate information in the form of the victim’s impact statement. Thus, it affirmed his sentence of 8 to 20 years for his armed robbery conviction. As to OV 3, the prosecution conceded that the victim testified he was not physically injured during the crime. Thus, both parties agreed that this OV should have been scored at 0 , rather than 5, points. As to OV 4, although the evidence suggested “that the victim’s psychological injury was not lasting, it endured beyond the day of the robbery as the victim was ‘very nervous’ after the offense and received psychiatric treatment.” He also apparently did not feel safe in his home given that “he was compelled to move to another residence. Feelings of being unsafe support an assessment of 10 points for OV 4.” Thus, the court held that a preponderance of the evidence supported the trial court’s finding of a serious psychological injury and the 10-point score. As to OV 10, it concluded that “in addition to his age, the timing (night) and location (isolated bus stop) rendered the victim vulnerable. Defendant exploited the victim’s vulnerability because he manipulated him for selfish and unethical purposes by catching him alone in the dark, attempting to distract him or put him at ease, and then robbing him at gunpoint.” Given the victim’s age and the surrounding circumstances, “a preponderance of the evidence supported the trial court’s score of 10 points for OV 10.” Subtracting the 5 points scored for OV 3 did not change defendant’s guidelines range. Thus, resentencing was not required. As to his claim that the trial court relied on inaccurate information, “a trial court may properly rely on the victim’s impact statement in the PSIR when assessing OV 4.” The court also rejected his reasonableness challenge, noting that his within guidelines minimum sentence was “presumed proportionate and must be affirmed on appeal.”
Search & seizure; U.S. Const. amend. IV; Const. 1963, art. 1, § 11; Traffic stop; Brendlin v. California; Investigatory stop; Navarette v. California; Terry v. Ohio; Terry stop; People v. Custer; Articulable & reasonable suspicion; People v. Simmons; People v. Kavanaugh; People v. Oliver; Stop based on an informant’s tip; People v. Tooks; People v. Horton; People v. Estabrooks; State’s interest in preventing drunk driving; Michigan Dep’t of State Police v. Sitz
The court concluded that the officer had reasonable, articulable suspicion that justified an investigative stop of defendant’s vehicle. Thus, it reversed the circuit court’s order affirming the district court’s order that dismissed the charges against defendant (operating a motor vehicle while intoxicated with a child as passenger and open intoxicants in a motor vehicle), and remanded for reinstatement of the charges. Defendant argued that at the time of the traffic stop, the officer had not witnessed her driving in an unsafe or improper manner, and had not seen her consume alcohol. The officer testified that “his information came solely from the police dispatcher who conveyed to him the information reported by the caller.” However, there “is no prohibition against an officer making a traffic stop solely on the basis of information provided by an informant. Had the officer witnessed a traffic violation, he would have been justified in stopping defendant without the caller’s tip.” The court also was “not persuaded that the tip was insufficiently reliable.” The tip “accurately provided the make, model, color, and license plate number of defendant’s vehicle, and accurately described the approximate location of the vehicle.” The circuit court “held that to justify a stop, something more must be added to the informant’s information, such as the witnessing of a traffic violation.” In both Navarette and Barbarich the informant “reported to police that the defendant had almost hit them or run them off the road, which arguably suggested to the investigating officers that possible criminal activity, i.e., drunk driving, was afoot.” In this case, the informant “reported witnessing a person who appeared to be intoxicated get in a car and drive away, which, if true, is criminal activity regardless of her ability to pilot her vehicle.” In other words, as in Barbarich and Navarette, “the informant provided a sufficiently reliable report to justify an investigatory stop by the officer to ascertain whether contemporaneous and ongoing criminal activity, i.e., drunk driving, was occurring.” It was true that defendant’s behavior “could also be consistent with legal behavior; not everyone who appears intoxicated is, in fact, intoxicated. Similarly, not every driver who swerves is intoxicated. But even though a person’s actions might also be consistent with legal behavior as well as with drunk driving, the reported behavior in this case was enough to create the inference of illegal behavior.”
Other acts evidence; MRE 404(b); People v. Kelly; People v. VanderVliet; People v. Denson; Relevance; MRE 401 & 402; Harmless error; The doctrine of chances; People v. Mardlin; People v. Breidenbach; The rape-shield statute; MCL 750.520j; People v. Sharpe; Right to a fair trial; U.S. Const. amend. XIV; Const. 1963, art. 1, § 17; People v. Miller; Hearsay; MRE 801(c); MRE 802; Prior inconsistent statement; People v. Jenkins; People v. Rodgers; Right to confront witnesses; Crawford v. Washington; MRE 611(a); People v. Biddles; Ineffective assistance of counsel; People v. Rockey; People v. Payne
The court held that while other acts evidence was inadmissible under MRE 404(b), the error was harmless. Further, defendant was not denied the effective assistance of counsel. He was convicted of CSC I for sexually assaulting the victim at knifepoint. He was identified more than 20 years after the attack when testing of the victim’s rape kit identified him through his DNA. As to his argument that the trial court erred by admitting other acts evidence, the prosecution failed to show “sufficient similarity between” the two incidents. However, the court found the error harmless, “given the definitive physical evidence that defendant’s DNA matched the evidence obtained immediately after” the assault of the victim in this case (B) and the fact that B “was not familiar with and did not know or have any relationship with defendant at that time.” As to the doctrine of chances, it noted that “the probability of defendant’s DNA being matched to two CSC I cases involving different victims, is less likely if, as suggested by defendant, the evidentiary samples obtained from the respective victims had been degraded or compromised in some manner. Thus, defendant’s primary theory is undermined, not by propensity or character evidence, but rather the improbability of the evidence having been damaged over time yet still identifying him as the perpetrator in separate criminal acts.” The court also rejected his claim that the trial court erred by precluding evidence pertaining to a DNA mixture, involving another male sperm donor, obtained from B’s rape kit analysis. “The alleged preclusion by the trial court of evidence of another potential male donor is without evidentiary support in the trial court record. Defendant was unable to successfully dispute or contradict the existing physical DNA evidence indicating that [his] DNA was matched to the DNA of the male donor of the sperm obtained from” B’s rape kit. “This evidence, coupled with [the victim’s] testimony that she did not know or have any form of consensual interaction with defendant or the perpetrator of her attack serves to minimize any alleged error by the trial court in omitting the evidence as argued by defendant on appeal.” Finally, as to the trial court’s denial of his request to call the police officer, the anticipated testimony of the officer “would not have provided any additional or useful information to the jury and did not deprive defendant of his right to confrontation.” Affirmed.
Search & seizure; Warrantless collection of cell-site location information (CSLI); Reasonable expectation of privacy; United States v. Jones; The third-party doctrine; Denial of motion to suppress; United States v. Lee; Good faith reliance on the Stored Communications Act (18 USC §§ 2701-2712); § 2703(d); United States v. Frazier; United States v. Leon; Illinois v. Krull; United States v. Warshak
[This appeal was from the ED-MI.] On remand from the U.S. Supreme Court, which reversed the court’s prior decision that the government’s warrantless collection of CSLI did not violate the Fourth Amendment, the court held that although acquiring the warrantless CSLI was a Fourth Amendment search, the evidence was admissible because the FBI agents acted in good faith as they reasonably relied on the Stored Communications Act (SCA). Section 2703(d) of the SCA permits the government to obtain CSLI without a warrant based on “‘specific and articulable facts showing that there are reasonable grounds to believe’ the records sought ‘are relevant and material to an ongoing criminal investigation.’” The information was used to connect defendant-Carpenter to specific robbery sites, and he was convicted of Hobbs Act robbery and related gun charges. The court upheld the admission of the CSLI evidence (Carpenter I), but the Supreme Court reversed in Carpenter II, holding that “Carpenter had a ‘reasonable expectation of privacy in the whole of his physical movements’ as recorded by his CSLI.” The Supreme Court also concluded that “the third-party doctrine did not shield the Government’s collection of CSLI from Fourth Amendment safeguards.” It held that because individuals do not “choose to turn over such a thorough record of their public and private lives,” the acquisition of the CSLI was a Fourth Amendment search, even if the information was obtained from a third party. With this backdrop, the court acknowledged that the Fourth Amendment required a warrant in this case. However, it held that the information was admissible under “Leon’s good faith exception” where it was “objectively reasonable” for the FBI agents and magistrates to rely on SCA § 2703(d) at the time the search took place. The court had previously held that reliance on § 2703(d) was reasonable in Warshak, and there was no evidence that the agents “engaged in intentional misconduct.” Thus, the district court properly denied Carpenter’s motion to suppress. However, the court noted that, in the future, “traditional Fourth Amendment principles will replace reflexive or mechanical use of § 2703(d). The government must either get a warrant or rely on a recognized exception to the warrant requirement.” Affirmed.
Mandamus relief ordering defendants-city clerk & city election commission to strike the names of city council candidates from the ballot in an upcoming election; Mandamus; Berry v. Garrett; Proper interpretation of a city charter provision granting the city council the authority to review the election & qualifications “of its members”; Naumann v. Board of City Canvassers of Detroit; McLeod v. State Board of Canvassers; Crossman v. Hanson; Houston v. McKinlay; Post-election challenges; People ex rel Cooley v. Fitzgerald; Cooley v. Ashley; Alter v. Simpson; Auditor Gen. v. Board of Supervisors of Menominee Cnty.; Belknap v. Board of Canvassers of Ionia Cnty.; Attorney Gen. ex rel Beers v. Board of Canvassers of Seventh Senatorial Dist.; Sinclair v. Common Council of City of Grand Rapids; Const. 1963, art. 4, § 16; Candidate & member defined; Barry v. United States ex rel Cunningham; Clear legal duty to perform the ministerial act of removing the names of the challenged candidates from the ballot; Barrow v. Detroit Election Comm’n
In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 70670 in the 6/10/19 edition for the published opinion) and reinstated the trial court’s ruling that correctly granted mandamus relief. The court agreed with the Court of Appeals dissent that the city charter provided “for a single class of city council members, subject to the term limits of the greater of three complete terms or 12 years in that office.” It also agreed that, as it was undisputed “that the challenged candidates will have served those maximum terms by the time of the 2019 election,” they were ineligible under the charter to be certified as candidates for this election. It further agreed with the Court of Appeals dissent “that plaintiff’s ability to show a clear legal right or a clear legal duty for purposes of mandamus does not depend upon the difficulty of the legal question presented.” However, it disagreed with both the Court of Appeals majority and dissent as to “the proper interpretation and application of § 4.2 of the Warren Charter, which provides that ‘[t]he council shall be the judge of the election and qualifications of its members, subject to the general election laws of the state and review by the courts, upon appeal.’” The court noted that such provisions are not unusual, and that “Michigan courts have regularly given” them effect. However, it was important to also note that Michigan courts applying either these provisions or Const. 1963, art. 4, § 16 (a similar provision) “have consistently done so in the context of a post-election challenge to the results of an election.” This made sense, as before an election is held, “a challenged individual is merely a candidate, rather than a member, of a legislative body.” Further, in the context of a post-election contest, “judicial review of an election leaves the legislative body in limbo. However, in the context of a pre-election challenge, judicial review can have the opposite effect, avoiding post-election challenges to an official who was ineligible to have his or her name included on the ballot in the first place.” Thus, the court concluded that § 4.2 did “not apply to a pre-election challenge. As a result, plaintiff was not required under § 4.2 to present his challenge to” the city council. For the reasons given by the Court of Appeals dissent, the court held that the defendant-city elections commission “had a clear legal duty to perform the ministerial act of removing the names of the challenged contestants from the ballots.” Justice Markman, joined by Justice Zahra, concurred in the majority’s result, but “as observed by the Court of Appeals dissent, I believe it is only necessary that this Court address the issue of relief in the pre-election context because the proposition that ‘the Charter makes the council the sole and exclusive judge of the qualifications of its members, is inapplicable’ in the present pre-election context.” He also agreed with the Court of Appeals dissent that the charter provided “for a single class of city council members subject to the term limits of three terms in office or a total of 12 years’ service.” It was not disputed that the challenged candidates “will have served those limits by the time of the 2019 election and thus are ineligible under the Warren Charter, §§ 4.3(d) and 4.4 (d).”
Medical malpractice; MCL 600.2912a; Craig v. Oakwood Hosp.; Expert testimony; Birmingham v. Vance; Francisco v. Parchment Med. Clinic, PC; Turbin v. Graesser (On Remand); The locality rule; Bahr v. Harper-Grace Hosps.; Discovery sanctions; Dean v. Tucker; Conjecture & speculation; Libralter Plastics, Inc. v. Chubb Group of Ins. Cos.; Summary disposition; Richardson v. Michigan Humane Soc'y; Maiden v. Rozwood
The court held that the trial court did not abuse its discretion by holding that plaintiff’s expert did not qualify as an expert in the local standard of care and appropriately granted summary disposition for defendant. Plaintiff sued defendant for medical malpractice, alleging he broke her tooth and damaged her lingual nerve during the procedure, causing a loss of sensation in the right half of her tongue. On appeal, the court rejected plaintiff’s argument that the trial court erred by concluding that plaintiff’s expert witness could not satisfy the locality rule for expert testimony on the applicable standard of care. “Although it is undoubtedly true that the ‘recognized standard of acceptable professional practice’ to which dental patients are entitled does not vary based on their race or socioeconomic status, it was still plaintiff’s burden to show that her expert was familiar with the local standard of care applicable to the community in which [defendant] practiced, or to a similar community. This plaintiff failed to do.” It also rejected her claim that the trial court erred by granting summary disposition for defendants because plaintiff could have presented other experts to testify to the local standard of care. “[T]he issue of plaintiff’s ability to present expert testimony on the appropriate standard of care was in dispute; yet plaintiff failed to offer any support for her assertion that, even if [the expert] was found not to be qualified, a genuine issue of material fact remained regarding her ability to provide other such testimony.” The court could not “find that the trial court erred by failing to deem the affidavit of merit to sufficiently raise a genuine issue of material fact regarding the applicable standard of care . . . .” Affirmed.
Interpretation of MCL 500.2833(1)(q); When does the time period for filing claims apply; Statutory interpretation; Allstate Ins. Co. v. State Farm Mut. Auto. Ins. Co.; United States Fid. Ins. & Guar. Co. v. Michigan Catastrophic Claims Ass’n; Joseph v. Auto Club Ins. Ass’n; An & action defined; Whether MCL 500.2833 should be interpreted to mean the same thing as its predecessor statute (MCL 500.2832); Effect of a change in statutory language; Bush v. Shabahang; Whether allowing a party to bring an action “only after compliance with the policy requirements” indicates that MCL 500.2833(1)(q) refers only to insureds; Whether interpreting the policy & the statute to apply the limitations period to insurers would be illogical; Presumption that the Legislature intended the meaning expressed by clear statutory language; Reynolds v. Bureau of State Lottery; Inter Co-op Council v. Tax Tribunal Dep’t of Treasury; Principle that the court may not rewrite plain statutory language; McGhee v. Helsel; Void “suit against us” provision in the policy; MCL 500.2860; Randolph v. State Farm Fire & Cas. Co.; Waiver; Rory v. Continental Ins. Co.; Moore v. First Sec. Cas. Co.; Patel v. Patel; Mutuality; Quality Prod. & Concepts Co. v. Nagel Precision, Inc.; Burden of proof; Cadle v. City of Kentwood; Effect of filing a complaint beyond the limitations period; Capital Mtg. Corp. v. Coopers & Lybrand; Estoppel; Wells Fargo Bank, NA v. Null; Presque Isle Co. v. Presque Isle Co. Sav. Bank; Laches; Lothian v. City of Detroit
In an issue of first impression, based on the plain language of the statute the court held that the limitation for the commencement of actions in MCL 500.2833(1)(q) applies to both insureds and insurers. The “suit against us” provision in the fire insurance policy did not comply with MCL 500.2833(1)(q) because it purported to apply only to the insured. Because the parties filed their claims after the limitations period in “MCL 500.2833(1)(q), which must be read into the insurance policy, neither party’s claim was timely.” Further, as defendant-insured’s waiver and estoppel arguments lacked merit, the trial court did not err in dismissing both parties’ actions. The parties disputed the proper interpretation of MCL 500.2833(1)(q) and whether its time period for filing claims applied only to actions by insureds, as contended by plaintiff-insurer, or whether it applied to all actions under the policy including those by insurers, as contended by defendant. Plaintiff argued that the court “should interpret MCL 500.2833 to mean the same thing as its predecessor statute, MCL 500.2832.” The court disagreed. “The Legislature repealed MCL 500.2832 and replaced it with MCL 500.2833, changing the relevant language from ‘suit or action on this policy for the recovery of any claim’ to ‘an action under the policy.’” Assuming that this change “means something, and that the Legislature intends the meaning plainly expressed in § 2833, it cannot then reasonably be maintained that ‘an action under the policy’ means the same thing as a ‘suit or action on this policy for the recovery of any claim.’” Further, plaintiff’s assertion that “allowing a party to bring an action ‘only after compliance with the policy requirements’” was another clue that MCL 500.2833(1)(q) refers only to insureds, since only they have policy requirements with which they must comply before filing an action, was belied by this case. Plaintiff’s assertions in its complaint illustrated that “there were policy-based requirements plaintiff had to fulfill before it could file suit against defendant.” Thus, plaintiff “also had policy requirements to comply with before it could bring this civil proceeding against defendant.” The court further concluded that the “suit against us” provision in the policy, which “set forth a one-year limitations period applicable only to actions brought by” the insured, was contrary to the mandate in MCL 500.2833(1)(q) and thus, absolutely void. Affirmed.
Child protective proceedings; MCL 712A.1 et seq.; MCR 3.900 et seq.; Prohibition on raising errors from the adjudicative phase in an appeal from termination of parental rights; In re Hatcher; A parent’s fundamental right to the care, custody, & control of his or her child; In re Sanders; Due process; In re Wangler; People v. Cole; MCR 3.971(C)(1) & (B)(4); Whether a post-termination appeal of a defect in the adjudicative phase is a collateral attack; Application of the “collateral bar” rule; Jackson City Bank & Trust Co. v. Frederick; In re Ives; Life Ins. Co. of Detroit v. Burton; Edwards v. Meinberg; Principle that a child protective proceeding is “a single continuous proceeding”; In re Hudson; In re LaFlure; Stare decisis; Coldwater v. Consumers Energy Co.; Effect of a growing list of “exceptions” to Hatcher; In re Mays; In re Mason; In re Mitchell; In re Jones; Principle that a rule of decision defies practical workability if it has proved difficult to apply or implement; Montejo v. Louisiana; Reliance interests; Whether changes in the law or facts no longer justify the decision; Whether respondents’ substantial rights were affected by the trial court’s error; Plain error review; People v. Carines; The trial court’s in camera interview of the child; In re HRC; Waiver; Remand to a different judge
Holding that appeal of an error in the adjudicative phase of child protective proceedings in an appeal from a termination order is not a collateral attack, as the collateral bar rule does not apply within a single child protective case, the court found that Hatcher was wrongly decided and overruled it. It further held that the trial court violated respondents-parents’ due process rights by accepting their plea without advising them of their rights or ensuring that their “pleas were knowingly, understandingly, and voluntarily made.” Further, it agreed with the Court of Appeals’ ruling in HRC that the use of unrecorded in camera interviews in these proceedings violate parents’ due process rights, and concluded that the improper interview here required that a different judge preside on remand. The court noted that the Hatcher rule rested “on the legal fiction that a child protective proceeding is two separate actions: the adjudication and the disposition.” In fact, under Hudson, a child protective proceeding is “a single continuous proceeding” beginning with a petition, proceeding to “an adjudication, and—unless the family has been reunified—ends with a determination of whether a respondent’s parental rights will be terminated.” The collateral bar rule prohibits “a litigant from challenging a ruling or judgment in a later and separate case.” Having concluded that Hatcher was wrongly decided, the court considered whether its precedential value compelled it to retain its rule of decision under stare decisis. It found that the “growing list of ‘exceptions’ to Hatcher” merited emphasis. While the court only now overruled Hatcher, “if these exceptions haven’t fully swallowed the rule, it is surely most of the way through the chewing process. The resulting disruption” affected the analysis of each of the stare decisis principles, which it concluded supported overruling Hatcher. Moving on to the merits, the court rejected the DHHS’s contention that the trial court’s errors did not affect respondents’ substantial rights. They were “deprived of their fundamental right to direct the care, custody, and control over” their child based on their invalid pleas, which also relieved the DHHS of its burden to prove that they “were unfit at a jury trial, with all of its due-process protections.” The error also "seriously affected the fairness, integrity, or public reputation of judicial proceedings.” The court next found that respondents did not waive any challenge to the in camera interview. It vacated the termination order and the order of adjudication, and remanded. Justice Markman, joined by Justice Zahra, would not overrule Hatcher because they believed that it was correctly decided. Further, because they believed that the Court of Appeals correctly determined that (1) respondents could not collaterally attack the adjudication after their parental rights were terminated, (2) they waived the issue as to the child’s interview, and (3) “any error on the trial court’s part in visiting respondents’ home was harmless,” they would affirm the Court of Appeals judgment.