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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Assault of a prison employee; MCL 750.197c; Double jeopardy; People v Ream; Principle that prison disciplinary proceedings are administrative & do not invoke double jeopardy; People v Wyngaard; Whether the statutory scheme was so punitive as to transform a civil remedy into a criminal penalty; People v Hudson; Michigan Department of Corrections (MDOC) policy directive 03.03.105A
The court held that the trial court did not abuse its discretion by denying defendant’s motion to dismiss the charges against him on the basis of double jeopardy. He was convicted of assault of a prison employee for repeatedly stabbing a corrections officer with a plastic ink pen, causing significant injuries. Before trial, he moved to dismiss the charge on double jeopardy grounds, arguing that he had previously been administratively sanctioned by the MDOC for the same assault. The trial court denied his motion. On appeal, the court rejected his argument that because he was already sanctioned by the MDOC, double jeopardy applied and his motion to dismiss should have been granted. “[T]he intent in providing punishment for violation of prison policies is to provide a civil punishment, as the punishment is primarily for discipline and other recognized administrative benefits of the penal institution.” And, considering the relevant Hudson factors, “the administrative punishment authorized by the policy did not transform the civil remedy into a criminal punishment.” As such, “the double jeopardy protections afforded by the state and federal constitutions were not implicated when the state brought criminal charges against defendant based upon the same conduct resulting in his prior administrative confinement. There was not the ‘clearest proof’ that the administrative punishment defendant received under MDOC policies was criminal.” Affirmed.
Ineffective assistance of counsel; Search & seizure; Warrant requirements; Warrantless search; People v Roberts; The exigent-circumstances exception; People v Blasius; People v Trapp; Probable cause
The court held that the trial court did not err by finding the exigent-circumstances exception applied to the seizure of one of defendant’s cell phone. Thus, he was not entitled to a new trial based on the ineffective assistance of counsel because he could not show how the outcome of his trial could have been different had defense counsel objected to the seizure. The court previously found that defendant’s trial counsel “did not provide effective assistance when he erroneously agreed that a warrant authorized the seizure of one of defendant’s cell phones” during a murder investigation. Thus, it remanded. On remand, the trial court found defendant was not entitled to a new trial because while “no warrant authorized the seizure, the exigent-circumstances exception applied, and therefore defendant did not suffer any prejudice from counsel’s error.” In the present appeal, the court agreed, finding the police had probable cause to believe the phone contained evidence related to the murder. Defendant’s codefendant, Griffin, “had communicated both before the murder and after the murder with the” phone and it “was located near the crime scene the evening before the shooting, and it was located about 12 minutes away from the crime scene about 12 minutes after the shooting.” This information, “coupled with the fact that Griffin’s phone appeared to have been reset around noon on the day of the shooting, strongly suggests that whoever Griffin was communicating with was involved with the murder.” The court also found the police had probable cause to seize the other phones in the vehicle defendant had been driving, noting that once they determined the phone at issue was there, “they had probable cause to seize any other communication devices inside that vehicle because it is reasonable to believe that because the possessor of the . . . phone was involved with the murder, then his other communication devices could contain evidence as well.” Finally, the court found that the “specific and objective facts support the conclusion that there were exigent circumstances to seize the phone without a warrant.” And the exigent circumstances “were not created by the officers. Once the vehicle was stopped, it was reasonable for the officers to seize the cell phones to prevent the destruction of evidence while seeking a warrant.” The facts the police “relied on objectively showed that there was an actual current danger of” their losing the phone and the data in it. “Based on the circumstances, the officer had probable cause to believe that all three phones contained evidence of the murder.” Affirmed.
Child custody; Proper cause or a change of circumstances (COC); MCL 722.27(1)(c); Vodvarka v Grasmeyer; Established custodial environment (ECE); Bofysil v Bofysil; The child’s best interests; Lieberman v Orr; The statutory best-interest factors; MCL 722.23; Factors (b), (d), (e), (f), (j), & (l); Great weight of the evidence
Holding that the trial court did not err by awarding primary physical custody of the parties’ child to defendant-father, the court affirmed. The trial court initially awarded plaintiff-mother sole physical custody, both parties joint legal custody, and parenting time as they agreed. Defendant moved to Georgia, then plaintiff and the child moved to Illinois without the trial court’s permission and against defendant’s wishes. As such, defendant sought, and the trial court entered, an order for specified parenting time. Defendant later moved back to Michigan, and plaintiff moved back thereafter. Defendant eventually sought joint legal custody and primary physical custody or, in the alternative, increased parenting time. A referee found he made a prima facie showing of proper cause or COC for his custody motion to proceed. The trial court subsequently found that although an ECE existed with plaintiff, defendant proved by clear and convincing evidence that it was in the child’s best interests to change custody and awarded him primary physical custody. On appeal, the court first found that the trial court “did find that proper cause or a [COC] existed before addressing the merits of the motion.” It then rejected plaintiff’s argument that the trial court erred by finding that some of the best-interest factors slightly favored or favored defendant, noting the trial court’s “best-interest findings for the specific best-interest factors were overall not against the great weight of the evidence.” The trial court “cannot be said to have committed a palpable abuse of direction in weighing the best-interest factors and concluding that the ‘sum total’ of the best-interest factors warranted a change in custody.” Contrary to plaintiff’s argument, “there is no presumption that the trial court gave equal weight to all the factors.” In addition, a trial court “is under no obligation to expressly state the relative weight, if any, placed on the best-interest factors.” Considering that the trial court found “none of the factors individually favored plaintiff, and we have upheld [its] findings on all but that under factor (f) (and on that, plaintiff admits it’s only equal), the trial court did not abuse its discretion by determining that defendant established by clear and convincing evidence that it was in the child’s best interests to change custody.”
Dispute between the owners of interests in an agreement to operate an oil well; Motion to set aside a default; Good cause & a meritorious defense; MCR 1.109(D)(3); MCR 2.603(D)(1); Alken-Ziegler, Inc v Waterbury Headers Corp; The trial court’s power to sanction; MCR 2.313; Order to compel discovery; MCR 2.313(A) & (B); MCR 2.313(A)(2)(a) & (b); Dean v Tucker; Dismissal as a sanction; MCR 2.502(A)(1); North v Department of Mental Health; Sanctions for filing a frivolous claim; MCL 600.2591(3)(a); MCR 1.109(E)(5) & (6)
Holding that the parties failed to identify any errors warranting relief, the court affirmed the trial court’s orders. Plaintiffs sued defendants over their involvement in the operation of an oil well, including several for acts taken as interest owners who supported defendants, and defendant-lawyer (Bieganowski) who represented some of the defendants in earlier litigation. After approximately five years of contentious litigation, the trial court dismissed the case for lack of progress after plaintiffs failed to pay a sanction within several months after it was ordered. However, the trial court refused the request for additional sanctions by Bieganowski and another defendant (Russell). On appeal, the court rejected plaintiffs’ argument that the trial court erred by setting aside a default entered against two defendants who failed to timely answer their second amended complaint. “Under the totality of the circumstances, the trial court did not err in concluding that the movants established good cause for their tardy response.” It also rejected their claim that the trial court erred by sanctioning them for misconduct involving experts, staying the case pending payment of the sanction, and then dismissing their claims for lack of progress after they failed to pay the sanction for several months. “Because the trial court had the authority to take the actions that it did, it did not err by misapplying the law to its exercise of discretion.” It also did not abuse its discretion by fashioning a remedy that included payment of the reasonable attorney fees at issue and staying the proceedings pending that payment. “Under the totality of these circumstances, it was entirely reasonable for the trial court to limit plaintiffs’ ability to further engage in [certain] tactics by staying the proceedings until [they] demonstrated their commitment to moving the case forward by paying the sanction.” And its “findings and determinations were sufficient to allow the trial court to dismiss the case under its inherent authority to punish misconduct.” Finally, the court rejected Russell’s and Bieganowski’s challenges to the trial court’s orders denying their requests for sanctions against plaintiffs for filing frivolous claims against them. “The record supported a finding that plaintiffs brought their claims against Russell and Bieganowski for improper purposes, but it also supported a contrary finding.” The trial court had overseen the proceedings for years and was intimately familiar with the parties, the legal arguments, and the evidence. Yet it impliedly rejected the evidence that plaintiffs had brought the claims for an improper purpose, and impliedly found there was at least some merit to some of the claims. On the record, the court could not conclude that the trial court erred by finding “plaintiffs did not bring the claims for an improper purpose, and the record does not show that the trial court otherwise misapplied the law when it denied the requests for sanctions.”
Res judicata; Adair v Michigan; Decision on the merits in the prior action; Same parties or their privies; “Privity & “privy”; Sloan v Madison Heights; Standing & powers of a personal representative (PR); Claims that were or could have been resolved in the prior action; Effect of case evaluation acceptance; CAM Constr v Lake Edgewood Condo Ass’n; Magdich & Assoc, PC v Novi Dev Assoc, LLC; MCR 2.403(M)(1)
Holding that plaintiff’s claims were barred by res judicata and also, in light of CAM Constr, that his case evaluation award acceptance in the prior action precluded him from pursuing them here, the court affirmed summary disposition for defendant-condo association. The case arose from a dispute over “the distribution of the proceeds of a foreclosure sale of a” condo owned by plaintiff’s late father. He filed the prior action in 2019 and this one in 2021. The court reviewed the requirements for res judicata. As to the first, it concluded that, in “light of the trial court’s dismissal of unjust enrichment and surplus proceed claims through summary disposition and the subsequent dismissal of the case in its entirety following the acceptance of case evaluation, the prior litigation was decided on the merits for” res judicata purposes. As to the same parties or their privies requirement, the court held that, due to plaintiff’s relationship to his father’s estate as the PR, privity was established. As to the final requirement, the trial court informed him “that the claim for unjust enrichment and surplus proceeds belonged to the estate. Despite a fiduciary duty as the” estate’s PR, he “did not seek to amend the complaint to raise the claims in the representative capacity. Instead, plaintiff proceeded to case evaluation and accepted the award. Although plaintiff submitted that he needed to settle the first action to acquire the proceeds to purchase the assignment from the estate, he had the capacity to act and pursue the claim as the [PR] without any delay or expenditure or need for an assignment.” As a result, the court found that the final requirement was met because “the second action might have been presented to the trial court in the first action.” It further determined that CAM Constr provided an alternative ground for affirming the trial court. In the prior action, “plaintiff participated in and accepted the case evaluation award. The panel recommended” among other things that he receive $3,000, to be paid by the defendant. “Consequently, the trial court entered a stipulated order of dismissal with prejudice. The order cited the parties’ acceptance of the case evaluation award under MCR 2.403 and defendant’s payment in full as the reason to dismiss the case with prejudice. Plaintiff’s acceptance of the case evaluation award resulted in the dismissal of all claims, even the claims to which the trial court granted summary disposition.”
Variance request to keep chickens & a chicken coop on property in a One-Family Residential Zone; Ordinance interpretation; “Hatchery”; “Hatch” or “hatching”; “Chicken hatchery”; Effect of the absence of a use in an ordinance specifically setting forth permissible uses under a zoning classification; Distinguishing Pittsfield Twp v Malcolm; Zoning Board of Appeals (ZBA)
The court held that “the plain and unambiguous language of Bloomfield Township Zoning Ordinance § 42-3.1.3” lacked any language prohibiting plaintiffs “from keeping chickens at their one-family detached dwelling,” and thus, they were not required to seek a variance. As a result, it reversed “the ZBA and circuit court’s orders that plaintiffs were required to have a variance to keep chickens at their” home and remanded. The language of the zoning ordinance was “less restrictive than that in Pittsfield Twp, which expressly stated that only the specified uses of land were allowed. But plaintiffs are lawfully using their land as a one-family detached dwelling in conformity with” § 42-3.1.3. Defendants suggested “that, because the ordinance does not expressly state residents may keep chickens at a one-family detached dwelling, such use is necessarily excluded. Under defendants’ logic, however, every activity at a one-family detached dwelling must then be excluded because the ordinance does not list any activities that may be conducted at a one-family detached dwelling. Because ‘[c]ourts attempt not to interpret statutes, and by implication ordinances, in a manner that leads to absurd results,’” the court held that “such interpretation of the ordinance cannot be upheld.” Defendants also claimed “that the ZBA’s interpretation that keeping chickens is a ‘farm activity,’ which must be conducted on at least 40 acres of land absent a variance, should be given deference. But custom is only given deference if the ordinance is ambiguous and the municipality’s interpretation is reasonable.” Defendants claimed there was “an ‘implied ambiguity’ based on plaintiffs’ attempt to construe the zoning ordinance’s definition of a farm to exclude the keeping of chickens as a customarily classified farm activity.” But plaintiffs were “not attempting to exclude the keeping of chickens as a farm activity, rather, [they] recognize that the ordinance is silent on whether chickens must be exclusively kept on a farm instead of a one-family detached dwelling.” The court found “no support for defendants’ claim that the zoning ordinance is ambiguous, and the ZBA’s interpretation need not be given deference. Because the unambiguous, plain language of the zoning ordinance contains no express provision prohibiting plaintiffs from keeping chickens at their one-family detached dwelling or limiting the keeping of chickens to a farm, plaintiffs are not required to obtain a variance, and the circuit court erred in affirming the ZBA’s decision.”
Constitutional right to direct the care & custody of the child before respondent was adjudicated; In re Sander; Mathews v Eldridge
In an order, the court granted in part and denied in part respondent’s motion for reconsideration and vacated its earlier opinion (see e-Journal # 79370 in the 4/28/23 edition). On reconsideration, it issued a new opinion, finding the DHHS’s delays deeply troubling and holding that the trial court reasonably determined the fictive kin suggested by respondent-father was an inappropriate placement. Thus, it reluctantly affirmed. Within days after AKD’s birth, the DHHS “petitioned for his removal from his mother and for the termination of her parental rights. The DHHS knew that the current respondent was the child’s likely father. Father expeditiously established his paternity. Yet the DHHS neglected to file a petition naming him as a respondent for 15 months after his child was placed in foster care. During the interim, father urged the court to place his son with PM, fictive kin. The court rejected this option, and father” appealed the removal order. The trial court “and the DHHS bypassed father’s right to direct the placement of his child by delaying his legal ability to assert that right.” The court held that there was “no legitimate excuse for the DHHS’s failure to timely declare father a respondent.” Father contended “that before he was officially named as a respondent in the child protective proceedings, he possessed an unfettered right to place his child with anyone of his choosing.” The court held that as in Sanders, father in this case “enjoyed a constitutional right to direct the care and custody of AKD before he was adjudicated. But in Sanders, as here, the legal analysis does not stop with that observation. When a child has been placed into care by an unchallenged order of the court, the state has a legitimate and important interest in protecting the child’s health and safety. When vindication of an unadjudicated parent’s custodial right will necessarily involve a court-ordered custodial change and the elimination of state custody, the state’s interest permits the maintenance of continued, temporary placement while an investigation is conducted to ensure the appropriateness of the new placement.” The court had no difficulty holding “that an abrupt removal of AKD from his foster care placement would have triggered a substantial risk of emotional harm to the child, even if the proposed placement were ultimately determined to be fit. AKD was only 5½ months of age when father became eligible to direct his care and custody. The court and the DHHS had an interest in protecting him from an unsafe and emotionally damaging custodial transfer, which meant conducting some investigation into the appropriateness of father’s proposed placement.” The court noted “that after placement, even relatives must proceed through the foster care licensing process.” It also noted that before “a child is placed with a relative, the DHHS must review the individual’s ‘[p]rior CPS history’ and conduct a ‘Central Registry check.’” The court sympathized with father’s position, but under the circumstances here, “father’s right to control the custody and care of his child must yield, at least temporarily, to the state’s interest in preventing upheaval for AKD, a vulnerable child who has been in care with the same foster family for nearly two years.” Balancing the interests “as Eldridge supports that we do, we conclude that in this case, the court did not err by initially refusing to transfer AKD’s custody.”