Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
The Wrongful Imprisonment Compensation Act (WICA); MCL 691.1755(1); Whether the new evidence resulted in the court’s reversal or vacation of the criminal charges against plaintiff leading to a new trial; MCL 691.1755(1)(c)
The court held that because reversal of plaintiff’s criminal convictions was not the result of new evidence, he was barred from recovery under the WICA. Thus, the Court of Claims erred when it denied defendant’s motion for summary disposition. Defendant argued that the Court of Claims erred in finding new evidence presented in plaintiff’s criminal appeal before the court resulted in the reversal of his convictions. Specifically, it contended that “plaintiff was awarded a new trial based on prosecutorial error and ineffective assistance of counsel, and not the presentation of new evidence.” The court agreed. The court’s reversal of plaintiff’s criminal convictions was based on “prosecutorial misconduct and defense counsel’s failure to object to such misconduct at trial—two assertions that were clearly expressed in” its 1994 opinion reversing his convictions. Reversed and remanded.
Sentencing; Constitutionality of MCL 769.12(1)(a); 25-year mandatory minimum sentence; Cruel & unusual punishment under the U.S. Constitution; Cruel or unusual punishment under the Michigan Constitution; The 3-part test determining whether a punishment is cruel or unusual; Distinguishing People v Lorentzen & People v Bullock; Notice of sentence enhancement; MCL 769.13; People v Head
Holding that the 25-year mandatory minimum sentence “mandated by MCL 769.12(1)(a) is neither cruel nor unusual[,]" the court concluded that the trial court did not plainly err by imposing it in sentencing defendant. Also, because he had actual notice and the prosecution’s failure to file a proof of service did not prejudice his ability to respond to the notice, the prosecution’s failure to file the statutorily required proof of service constituted harmless error. He did not establish plain error affecting his substantial rights and was not entitled to resentencing. He was convicted of AWIGBH and sentenced, as a fourth offense habitual offender, to 25 to 99 years. Defendant argued that “the 25-year mandatory minimum sentence imposed by MCL 769.12(1)(a) constitutes cruel and unusual punishment under the United States Constitution and cruel or unusual punishment under the Michigan Constitution.” The nature of his argument on appeal appeared to raise a facial challenge to the statute. But he “failed to overcome the presumption that the legislatively mandated sentence imposed was proportionate and valid.” Further, his argument lacked merit under the three-part test used “in determining whether a punishment is cruel or unusual[.]” The court noted that “MCL 769.12(1)(a) only applies to individuals convicted of a serious felony who have previously been convicted of three or more felonies, at least one of which is a listed prior felony. Defendant’s present conviction was for a serious felony—AWIGBH—during the commission of which he stabbed” the victim eight times. And all “three of his prior felony convictions involved serious felonies, two of which even involved the death of the victims.” His PSIR indicated that “his prior criminal record included three felony convictions and three misdemeanor convictions.” The court noted that although “the mandatory 25-year minimum sentence is long, it likewise ‘reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.’” Moreover, defendant did not present the court “with any unusual circumstances that would render the presumptively proportionate legislatively mandated sentence disproportionate.” Affirmed.
Search & seizure; Validity of an arrest; Warrantless entry into a home; Payton v New York; Suppression of evidence based on the exclusionary rule; People v Randolph; New York v Harris; Arrest for a 90-day misdemeanor; MCL 764.15(1)(d); Motion for a new trial; MCR 6.431
The court held that the trial court did not err by suppressing evidence and granting defendant a new trial based on a violation of the Fourth Amendment. Defendant was arrested at home when a police officer grabbed her wrist at the doorway and the two stumbled backward deeper into the interior of the home. She was charged with OWI, third offense, and failing to report an accident resulting in damage to fixtures. The trial court denied her motion to suppress, finding the arrest was constitutionally valid. She was then convicted as charged and sentenced. In a prior appeal, the court affirmed. However, the Supreme Court found the arrest violated her right to be free from unreasonable governmental intrusion into her home, and remanded with instructions that the trial court “address the separate issue regarding whether to apply the exclusionary rule.” On remand, the trial court granted defendant’s motion to suppress both her statements in the patrol car and the breath-test results under the exclusionary rule and for a new trial. On appeal, the court found that the arresting officer “exhibited deliberate disregard for defendant’s Fourth Amendment” rights, and that the “deterrent value of exclusion is strong and outweighs the resulting cost to society.” It noted that although he “did not intentionally or deliberately enter the home, it is quite clear that he intended to arrest defendant at her home absent a warrant by engaging in a deliberate effort to draw her near the door where he could physically grab her and pull her out of the house. And it was [his] actions that set into motion the events that led to defendant’s arrest inside the home.” The court observed that it was bound by the Supreme Court’s “determination that ‘the facts that were known to [the officer] at the time of the arrest were not sufficient to establish probable cause for OWI or any other identified felony.’” In addition, because “the ‘failure to report an accident resulting in damage to fixtures is a 90-day misdemeanor[;] . . . [the officer] was not statutorily authorized to arrest defendant [under] . . . MCL 764.15(1)(d).’” As such, he “did not have a legal basis to arrest defendant for a 90-day misdemeanor committed outside his presence. Thus, detaining defendant was wrongful and unlawful.” Finally, the court rejected the prosecution’s contention that the trial court abused its discretion when it granted defendant a new trial. “Under the circumstances of this case wherein there was a Fourth Amendment violation and critical evidence was presented that should have been suppressed under the exclusionary rule, a new trial is wholly warranted.” Affirmed.
Motion for relief from judgment; “Good cause” & “actual prejudice”; MCR 6.508; Ineffective assistance of counsel; Failure to advise defendant about the consequences of a parole violation on his sentences under a plea agreement; Requirement that a plea be voluntary; People v Brown; MCR 6.302(A) & (B); People v Warren; People v Blanton; MCR 6.302(B)(2); “The offense”; Effect of a defendant’s ignorance of the collateral consequences of a guilty plea; Direct consequences; MCL 768.7a(2)
The court concluded that “the mandatory consecutive sentencing that resulted” from defendant’s guilty pleas was a direct consequence of his pleas, as it had “a definite, immediate, and automatic effect on the range of” his punishment. Thus, the court reversed the denial of his post-appeal motion for relief from judgment and remanded. He sought to withdrawal guilty pleas entered “years earlier on the basis that neither the trial court nor his attorney had advised him that he would first have to complete a sentence for a crime for which he was on parole before he would begin to serve the sentences imposed for the offenses to which he pled guilty.” The court noted that “a plea must be voluntarily and understandingly made for purposes of MCR 6.302(A) and” due process, but a “defendant’s ignorance of the collateral consequences of a guilty plea does not render the plea involuntary.” Thus, the question became whether the requirement that he complete his second-degree murder sentence “before beginning the armed robbery sentences—such that the murder and robbery sentences run consecutively—is a direct consequence or a collateral consequence of his guilty pleas.” The court held that it was the former. Under MCL 768.7a(2), “[i]f a person is convicted and sentenced to a term of imprisonment for a felony committed while” he or she was on parole from a sentence for a prior crime, the prison term for the later crime begins “to run at the expiration of the remaining portion of the” prison term for the prior crime. The necessity of completing his murder sentence before “defendant begins serving the concurrent robbery sentences effectively and necessarily extended the range of his punishment, increasing the minimum amount of time” he has to serve in prison. But while “the trial court was required to advise defendant of the mandatory consecutive sentencing at the plea hearing under MCR 6.302(A) and due-process principles,” that did not mean he was automatically entitled to post-appeal relief under MCR 6.500 et seq. On remand, the trial court must “address and rule on the issues of ‘good cause’ and ‘actual prejudice’ even if it concludes that ruling on only one of those issues suffices to render a decision on” his motion. It also must rule on his ineffective assistance of counsel claim using “the ‘good cause’ and ‘actual prejudice’ analyses set forth in MCR 6.508(D) and as construed” by the court here.
Sentencing; Upward departure
The court held that the trial court did not abuse its discretion by imposing a sentence that upwardly departed from the minimum guidelines range. The case arose out of defendant sexually abusing a two-year-old girl, possessing and distributing photos of her vagina, and possessing and distributing photos of an erect adult penis next to a nine-year-old girl. Defendant appealed the trial court’s plea-based sentence after she pled guilty to producing child sexually abusive activity or material, possession of child sexually abusive material, and the distribution or promotion of child sexually abusive material. She was sentenced to 12 to 20 years for child sexually abusive activity, 16 months to 4 years for possession of child sexually abusive material, and 48 months to 7 years for distribution or promotion of child sexually abusive material. Defendant challenged the departure sentence imposed for the producing child sexually abusive activity of material conviction, claiming that it was disproportionate and thus, unreasonable. She argued the trial court “did not sufficiently justify why the circumstances surrounding the offense and the offender warranted an upwards departure from the applicable minimum sentencing guidelines range.” But it properly determined that the sentencing guidelines here did not adequately account for the circumstances surrounding the offense. It properly considered the seriousness of her “conduct, which included the sexual assault and exploitation of two very young minor females. The trial court further considered the effect on the victims, and the fact that defendant failed to take responsibility for her role and apologize to the victim without making excuses for her behavior.” Finally, it noted her “willingness to participate in this type of activity with her codefendants; that without defendant being a willing participant, it may not have occurred.” Affirmed.
Jury instructions; People v Dobek; Waiver; People v Kowalski; Self-defense; MCL 780.972(1)(a); The prosecution’s burden; People v Rajput; Model jury instruction on the use of deadly force in self-defense; M Crim JI 7.15; Effect of imperfect instructions; People v Clark; Prosecutorial misconduct; People v Mann; Ineffective assistance of counsel; People v Dixon; Failure to make a futile objection; Sufficiency of the evidence; First-degree murder; MCL 750.316(1)(a); Premeditation; People v Plummer; Great weight of the evidence
Holding that there were no errors requiring reversal, the court affirmed defendant’s convictions of first-degree premeditated murder and manufacturing marijuana. The victim died during his apparent attempt to steal marijuana plants from defendant’s yard. Defendant claimed he acted in self-defense when he repeatedly punched the intruder and struck him several times with a baseball bat, asserting the victim was acting in a crazed manner because of the amount of meth in his system. On appeal, the court rejected his argument that the trial court erred in instructing the jury on self-defense and abused its discretion by denying his motion for a new trial because the jury instructions as to the defense of self-defense did not include the words “seriously injured,” but only used the word “death.” The trial court “included the ‘bodily harm’ language in its instruction regarding the duty to retreat, and it instructed the jury that the prosecutor must prove beyond a reasonable doubt that defendant did not act in self-defense. When reviewed in their entirety, even if imperfect, the instructions represented the issues to be tried and sufficiently protected the defendant’s rights.” The court also rejected his claim that “his trial counsel was ineffective in multiple ways, and that the prosecutor committed misconduct” that denied him a fair trial by misrepresenting evidence to the jury and making “flagrantly improper arguments.” He failed to show that his trial counsel’s failure to object to the challenged comments by the prosecution, which did not rise to the level of misconduct, was not sound trial strategy or that it was prejudicial. And counsel’s “failure to object to the self-defense instructions did not constitute deficient performance.” Defendant also failed to establish “a reasonable probability that the outcome of the trial would have been different but for counsel’s failure to properly present” certain expert medical testimony. Moreover, he failed to show that counsel was unprepared or that the failure to elicit certain testimony constituted deficient performance. Finally, because “defendant’s conviction was supported by sufficient evidence and was not against the great weight of the evidence, the trial court’s denial of [his] motion for directed verdict was a principled outcome.” In addition, “the record reasonably supported the jury’s” verdict, and the trial court “did not abuse its discretion when it denied defendant’s motion for a directed verdict.”
Sentencing; Resentencing after remand; Whether sentences were based on inaccurate information; Challenges to the facts underlying defendant’s convictions; Proportionality; Effect of a within-guidelines sentence
The court rejected defendant’s claim that he was sentenced based on inaccurate information, and concluded that the absence of an explicit reference to his lack of a criminal history did not render his presumptively proportionate within-guidelines sentence disproportionate. Thus, it affirmed his 30 to 55-year sentence on resentencing for his second-degree murder conviction. He largely argued that the trial court’s failure to “consider his challenges to the accuracy of the facts that led to his conviction” resulted in his being sentenced based on inaccurate information. But some of the facts he challenged directly related “to elements of the crimes for which he was convicted. For example, arson requires an intentional act, . . . so the jury necessarily rejected defendant’s repeated claim that the fire was an accident.” As to his contention that his employee (D) was not a credible witness in light of his recanting affidavit, D’s “credibility was the central issue at trial,” and it was for the jury to determine the witnesses’ credibility. The court found no error in the trial court not reconsidering “issues squarely decided by the jury.” Defendant also challenged facts that the jury did not necessarily decide, such as that a prior fire in 2007 was not arson, contrary to D’s testimony “that he also set this fire at defendant’s request.” The prior fire did not result in criminal charges – D’s testimony about it was offered under MRE 404(b). The court noted that “the trial court did not rely on or discuss the first fire when it resentenced defendant,” and he did not cite any authority providing that a sentencing judge must “reach an independent conclusion on all disputed factual questions.” As to his proportionality argument, while “the trial court did not explicitly refer to his lack of criminal history” it considered the serious nature of the crime and “his exemplary prison record . . . .” In addition, it made several references to the court’s most recent prior opinion in the case where the court criticized it “for ‘briefly mention[ing] defendant’s lack of criminal history, but [not expressly taking] that into account when it determined that the recommended range was inadequate.’” Under the circumstances, the court found that the “lack of discussion of” his criminal history did not warrant reversal.
Illegal re-entry; Collateral attack on the initial removal order based on lack of notice; 8 USC § 1326(d); United States v Palomar-Santiago; Failure to exhaust administrative remedies; How a noncitizen can proceed in the event of insufficient notice; § 1229a(b)(5)(C)(ii)
[This appeal was from the ED-MI.] Concluding that Palomar-Santiago foreclosed relief for defendant-Flores-Perez on his collateral challenge to his initial removal order due to his failure to exhaust his administrative remedies, the court affirmed the denial of his motions to dismiss the indictment charging him with illegal re-entry. Each of his arguments for dismissing the indictment was based “on the notion that he did not receive adequate notice of his 2003 removal hearing.” After the denial of his motions, he pled guilty but preserved “his right to appeal the denial of his motions to dismiss.” If he could successfully challenge, and undo, the removal order, he could defeat the illegal re-entry charge. To prevail under § 1326(d), he had to “show that ‘(1) [he] exhausted any administrative remedies that may have been available to seek relief against the [underlying removal] order; (2) the deportation proceedings at which the order was issued improperly deprived [him] of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.’” All three conditions must be met to invalidate a removal order. “Flores-Perez failed to challenge his removal order in any respect until filing this collateral challenge,” almost 20 years after it was issued, and after he “was deported due to the order. And he has never sought to challenge the order through administrative channels. As a result, he has failed to satisfy the first element of a collateral attack—administrative exhaustion.” He effectively asked the court “to excuse § 1326(d)’s exhaustion requirement due to an alleged procedural flaw in his removal process.” But this position was nearly identical to that rejected in Palomar-Santiago. Applying the Supreme Court’s holding, the court concluded that even if his “removal was flawed, that error ‘does not excuse [Flores-Perez]’s failure to comply with a mandatory exhaustion requirement’ because ‘administrative review, and then judicial review if necessary, could fix [the] error,’ if any. . . . The bottom line is that Flores-Perez could have pursued administrative remedies, but chose otherwise.” While he asserted he only had to exhaust “available” remedies and “the flawed notice ‘severely limited’” those, § 1229a(b)(5)(C)(ii) “expressly contemplates how a noncitizen can proceed in the event of insufficient notice.”
Whether candidates for city offices were properly certified; MCL 168.558(4); Whether the candidates made false statements in their affidavits of identity (AOIs); Burton-Harris v Wayne Cnty Clerk; Mandamus; Principle that mandamus may not be issued where disputed facts exist; “Clear legal duty”; “Ministerial act”; Duty to correct ballot errors; MCL 168.567
The court held that the trial court did not err by declining to grant plaintiffs the relief sought as to defendants-candidates Rose and Woolley, but abused its discretion by refusing to grant relief as to defendants-candidates Johnson and Patts. Thus, it affirmed in part, reversed in part, and ordered defendants-city clerk and city commission to take the proper steps to ensure that “Johnson and Patts are not placed on the ballot for the upcoming August 2021 election.” Plaintiffs sought emergency declaratory relief and a writ of mandamus compelling the clerk and commission to remove Johnson, Patts, Rose and Woolley from the August 2021 primary ballot on the ground that they filed false AOIs. They claimed the candidates could not be certified to appear on the ballot because they owed outstanding late filing fees or fines as of the date that they signed their respective AOIs. The trial court found there were factual disputes that precluded it from granting mandamus relief, and that plaintiffs’ challenges were untimely. On appeal, the court found that the AOIs submitted by Johnson and Patts contained false statements. “Both attested that all outstanding fines and late fees were paid, but that was not true; both paid late filing fees owed from prior years after filing their AOIs. The AOIs clearly state that, as of the date of the AOI, all outstanding fines and late filing fees are paid. That was false.” As such, the clerk could not certify them to the commission, and plaintiffs were entitled to a writ of mandamus compelling their removal from the ballot. However, as to Rose, there remained “a factual dispute regarding whether her outstanding fee was discharged in bankruptcy.” Having failed to address whether the bankruptcy in fact discharged “the 2017 fee, plaintiffs have failed to show that Rose’s AOI contained a false statement.” Also, as to Woolley, there was, “at a minimum, a factual dispute regarding whether [his] AOI contained a false statement, as it is not clear if he actually owed any outstanding fees at the time he signed his AOI.” Finally, the court noted that “the timeliness of plaintiffs’ challenges is not a reason to refuse to grant mandamus relief.”
Whether MCL 168.558(4) requires that a clerk reviewing an affidavit of identity (AOI) filed by a candidate who makes only true statements not certify the candidate due to an error in a campaign report; Stumbo v Roe; MCL 168.558(6); Whether the trial court should have granted declaratory relief as an alternative to mandamus
Holding that MCL 168.558(4) does not impose a duty on a clerk reviewing an AOI filed by a candidate who makes only true statements to not certify the candidate because of an error in a campaign report, the court affirmed the denial of mandamus relief. Plaintiff-Pontiac registered voter requested mandamus or declaratory relief to compel defendants-Pontiac City Election Commission and the Pontiac City Clerk to not certify intervenor-Greimel as a candidate for Mayor of the City of Pontiac under MCL 168.558(4). Plaintiff argued that “he has a clear legal right to have Greimel removed from the ballot, and that the clerk has a clear legal duty to remove him, because two campaign reports listed his former Auburn Hills address such that Greimel did not comply with MCL 168.558(4).” The court noted that “Greimel’s AOI included the first requisite statement that ‘as of the date of the affidavit, all statements, reports, late filing fees, and fines required of the candidate or any candidate committee . . . have been filed or paid . . . .’ It also included the second required statement that ‘the candidate acknowledges that making a false statement in the affidavit is perjury, punishable by a fine up to $1,000.00 or imprisonment for up to 5 years, or both.’ In this regard, Greimel’s AOI strictly complied with” MCL 168.558(4)’s requirements. Because both statements were in Greimel’s AOI, and plaintiff did not allege that either was false, the court held that “the trial court correctly found that Greimel did not make a false statement in his AOI that would trigger a duty to not certify Greimel’s name to the election commissioners. Greimel’s campaign reports, not his AOI, contained the erroneous citation to his former Auburn Hills address.” The court noted that “MCL 168.558(4) does not address the requirements for a candidate’s campaign reports, nor does it indicate that a clerk should not certify a candidate if the campaign reports contain errors such as the clerical error in this case. Similarly, MCL 168.558(4) does not provide that making a false statement in a campaign report constitutes perjury. Because the plain language of MCL 168.558(4) does not address clerical errors in campaign reports, plaintiff’s attempt to rely on that statute must fail.” Here, like Stumbo, Greimel filed a compliant AOI; thus, the clerk correctly certified his candidacy to the election commissioners. Plaintiff did not show that he was “entitled to the extraordinary remedy of mandamus.”
Res judicata; “Reasonable diligence”; Privies; Offer of judgment sanctions; MCR 2.405(D); The “interest of justice” exception
Concluding that plaintiffs’ claims related to a 2018 partial roof collapse could have been discovered with the exercise of reasonable diligence at the time of a 2015 case, the court affirmed summary disposition for defendants based on res judicata. It also rejected defendants’ assertion in their cross-appeal that the trial court erred in applying the interest of justice exception to deny them offer of judgment sanctions. Plaintiffs were the owner and operator of a commercial building. In 2014, they retained defendant-Northcrest as the general contractor for a remodeling project. The other defendants were subcontractors it hired to work on the project. After it was finished in 2015, Northcrest sued plaintiffs in a dispute over its payment and lien. They counterclaimed, asserting “construction and design defects in the remodeling work. That action was settled in 2016 pursuant to a stipulation and release, and all claims were dismissed with prejudice.” Part of the roof collapsed in 2018, and plaintiffs filed this action, alleging that it “was caused by, among other things, construction and design defects related to the 2014-2015” project. The question the court considered was “whether the defective work that caused the 2018 roof collapse could have been raised in the prior counterclaim by ‘exercising reasonable diligence.’” A report by forensic engineers hired by plaintiffs “seemingly indicated that some of the problems that contributed to the 2018 roof collapse were visibly apparent upon a cursory inspection. To the extent” it was unclear whether those problems contributed to the collapse, the report clearly indicated “the visual inspection induced the more invasive inspection work. Considering the sheer extent of the defects in Northcrest’s work already known to plaintiffs, and the alleged fact that Northcrest had actively covered up its shoddy workmanship,” together with the report, the court agreed “with the trial court that a reasonable exercise of diligence by plaintiffs in 2015 and 2016 would have revealed the additional defects that caused the” 2018 collapse. The court also upheld the trial court’s ruling that res judicata barred plaintiffs’ claims against the subcontractors as they “were in privity with Northcrest in the 2015 action[.]” Finally, given the circumstances and the context of the parties’ history, it did not abuse its discretion by finding “this was an unusual case that justified” applying MCR 2.405(D)(3).
Governmental immunity; MCL 691.1407(1) & (2); Odom v Wayne Cnty; “Gross negligence”; MCL 691.1407(8)(a); Wood v Detroit; Use of sirens & exceeding the speed limit in response to emergencies; MCL 257.603 & 632; Principle that the police owe a duty to innocent persons whether those persons are inside or outside the vehicle; Robinson v Detroit; Proximate cause; MCL 691.1407(2)(c); Ray v Swager (On Remand); A driver’s duty; MCL 257.650(1); MCL 259.649(7); Appellate jurisdiction; MCR 7.203(A); “Final judgment”; MCR 7.202(6); MCR 7.202(6)(a)(v); Scope of appeal; Tyrrell v University of MI
Holding that there were material questions of fact as to whether defendant-police officer acted with gross negligence and was the proximate cause of the accident, the court affirmed the denial of his summary disposition motion. However, it declined to address his additional argument regarding whether plaintiff suffered a serious impairment of body function, finding the issue was not appealable as of right and he did not file a corresponding application for leave to appeal. Plaintiff sued defendant for injuries she sustained in the accident, asserting he acted with ordinary and gross negligence by driving through a busy intersection at a high rate of speed without activating either his police lights or a siren. She further asserted that his conduct was the proximate cause of her injuries, and that she suffered a serious impairment of body function. The trial court denied both parties’ motions for summary disposition. On appeal, the court rejected defendant’s argument that the trial court erred by denying his motion for summary disposition on the basis of governmental immunity. “A reasonable jury could conclude that defendant’s actions under the[] circumstances demonstrated ‘almost a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks.’ As a result, reasonable minds could differ in regard to whether defendant acted with gross negligence, and summary disposition was properly denied on this ground.” Further, although a police officer “may exceed the speed limit and travel without sirens while responding to an emergency,” the officer still “owes a duty of care to other drivers and pedestrians.” As such, the trial court “properly concluded that defendant is not entitled to summary disposition on the basis of MCL 257.603 and MCL 257.632.” The court also rejected his claim that he was not the proximate cause of plaintiff’s injuries because she was at fault for the accident by failing to yield to him when making a left-hand turn, noting the trial court properly denied his “claim that he was entitled to governmental immunity based on proximate cause.” Finally, the court declined to address his contention that the trial court erred by denying his motion for summary disposition because plaintiff’s injuries did not amount to a serious impairment of body function “because it is outside the scope of defendant’s appeal of right.” If defendant wanted the court to consider that portion of the trial court’s order, "he should have filed an application for leave to appeal the issue under MCR 7.203(B)(1) and sought to have the appeals consolidated.” Because he did not, “this issue is outside the scope of his appeal of right.” For the same reason, it declined “to address plaintiff’s contention that she was entitled to summary disposition in her favor on the issue.”
Construction & application of the tax on low grade iron ore; MCL 211.621(b); MCR 2.116(I)(2); Tax Tribunal (TT)
The court held that because it was undisputed that the properties in question were not mined, the TT properly concluded that “assessment of the iron ore tax against petitioners should be canceled and summary disposition granted to petitioners under MCR 2.116(I)(2).” Respondents argued that the TT erred by interpreting the iron ore tax statute to include a requirement that the property in question be actively mined during a given tax year. The court held that “the iron ore tax only applies to ‘low grade iron ore mining property,’ which the statute defines as ‘mineral bearing land from which low grade iron ore is mined . . . .’” It further determined that under “the plain and unambiguous meaning of that statutory language, the iron ore tax can only be levied against properties that were mined during the tax years in question.” Affirmed.
Reasonable reunification efforts; MCL 712A.19a(2); “Aggravated circumstances”; MCL 722.638(1) & (2)
The court held that because a petition was not mandated by MCL 722.638(1) given that the case did not involve aggravated circumstances, subsection (2) did not apply and thus, the trial court clearly erred in relying on it in ruling that the DHHS did not have to make reasonable reunification efforts. The inadequacy of the reunification efforts rendered the evidence supporting termination of respondent-father’s parental rights insufficient to establish statutory grounds for doing so. Thus, the court reversed the termination order and remanded. It noted that “MCL 722.638(2) requires a two-part analysis.” The DHHS must include a request for termination “at the initial disposition if (1) the parent is the perpetrator or if the parent placed the child at an unreasonable risk of harm and (2) the filing of the petition is mandatory under MCL 722.638(1).” It appeared that the trial court did not “consider both factors but, instead, only focused on respondent’s role in exposing his daughter to an unreasonable risk of harm. However, according to the plain language of the statute, a petition mandated by subsection (1) is necessary in order to trigger subsection (2). Yet, the trial court acknowledged, correctly, that the facts do not bring this case within the ambit of MCL 722.638(1).” Only MCL 722.638(1)(a)(ii) was potentially applicable here, but because “the perpetrator was less than 18 years old and is neither a parent, guardian, or custodian of the child, the conduct at issue is not an ‘aggravated circumstance’ for purposes of MCL 722.638(1).” Thus, the trial court committed clear legal error in determining “that, even absent aggravated circumstances, MCL 722.638(2) relieved DHHS of its duty of making reasonable efforts at reunification." Without respondent being given "a meaningful opportunity to engage in services designed to remove the barriers to reunification with his daughter, there is a ‘hole in the record,’” with the result that the evidence was insufficient to terminate his parental rights.