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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.

 

 

Case Summary


Cases appear under the following practice areas:

  • Constitutional Law (1)

    Full Text Opinion

    This summary also appears under Election Law

    e-Journal #: 73378
    Case: SawariMedia, LLC v. Whitmer
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Norris, Clay, and Larsen
    Issues:

    Whether the State defendants were entitled to an emergency stay of the district court’s order declining to enforce the number of signatures necessary to get a proposal on the ballot; In re Flint Water Cases; Service Employees Int’l Union Local 1 v. Husted; Daunt v. Benson; Louisiana-Pac. Corp. v. James Hardie Bldg. Prod., Inc.; Nken v. Holder; DV Diamond Club of Flint, LLC v. Small Bus. Admin.; Likelihood of success on the merits; Whether the burden on plaintiffs’ access to the ballot was “severe”; Anderson v. Celebrezze; Burdick v. Takushi; Esshaki v. Whitmer; Thompson v. DeWine; Request for en banc review of whether the Anderson-Burdick framework should apply to ballot initiatives’ signature requirements; Schmitt v. LaRose; Committee to Impose Term Limits on OH Supreme Court & to Preclude Special Legal Status for Members & Employees of OH Gen. Assembly v. Ohio Ballot Bd.; Initiative & Referendum Inst. v. Walker (10th Cir.); Marijuana Policy Project v. United States (D.C. Cir.)

    Summary:

    [This appeal was from the ED-MI.] In an order, the court denied defendants-State of Michigan officials an emergency stay of a district court order that ruled the State’s refusal to suspend the signature requirements for proposed ballot initiatives during the pandemic violated plaintiffs’ First Amendment rights. Plaintiffs, proponents of a criminal-justice reform initiative that stalled when the Governor’s “stay-at-home” orders went into effect, requested that the State put aside the signature requirements during the pandemic. When the State refused, they sued in district court, alleging that “the combination of the stay-at-home order and the signature requirement violates the First Amendment by creating a severe restriction on their access to the ballot.” The district court agreed and enjoined enforcement of the signature requirement. The State proposed an extension of the time in which to gather signatures, which the district court rejected. It then moved for an emergency stay of the district court’s order pending appeal. The court reviewed the requirements for a stay and held that defendants were not likely to succeed on the merits. It rejected their argument that the district court erred by ruling that the burden put on plaintiffs’ access to the 2020 general election ballot was “severe” under the Anderson-Burdick framework, which is applied to cases involving First Amendment challenges to ballot-access restrictions. The court held that the burden placed on plaintiffs was “identical” to those held to be severe in Esshaki, and that defendants’ reliance on Thompson was misplaced. It then held that defendants were unlikely to succeed on the merits of their argument that the district court erred by refusing their proposed remedy—extension of the petition deadline—where the proposed extended deadline effectively granted, at most, a 35-day extension. The court noted that the State requested an en banc review to consider the argument that the Anderson-Burdick framework should not apply to ballot initiative signature requirements, which was under consideration.

    Full Text Opinion

  • Criminal Law (6)

    Full Text Opinion

    e-Journal #: 73336
    Case: People v. Deweerd
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Borrello, Ronayne Krause, and Riordan
    Issues:

    Admission of drug test results; Chemical test analyses under MCL 257.625a; Gard v. Michigan Produce Haulers; People v. Lucas; Scientific reliability; MRE 702; Daubert v. Merrell Dow Pharm., Inc.; Gilbert v. DaimlerChrysler Corp.; Harmless error; People v. King; M Crim JI 12.7; People v. Matuszak

    Summary:

    The court held that while not all of the Gard factors were specifically satisfied here, the witness’s (T) testimony was adequate for admission of the drug test results. Also, the urine drug test was of relatively little importance, making any error in its admission harmless. Defendant was convicted of possession of a controlled substance (meth). He argued that the drug test results should have been excluded due to lack of scientific reliability. The court noted at the outset that T “was not presented as an expert witness, nor did her testimony resemble expert testimony.” Thus, the trial court was not required to ensure that her testimony was scientifically reliable. Gard outlined the foundational requirements necessary for admission of chemical test analyses under MCL 257.625a, and most of the Gard factors were clearly satisfied by T’s testimony. There was “no evidence that defendant’s urine was labelled, but the evidence overwhelmingly indicates that doing so was unnecessary.” The evidence indicated that the urine was not obtained by “an authorized licensed physician, medical technologist, or registered nurse designated by a licensed physician,” but the court could not “conceive of no reason why doing so would have been necessary under the circumstances.” Thus, although not all of the Gard factors were specifically satisfied, T’s “testimony was adequate for admission of the results under the trial court’s ‘considerable discretion in deciding whether a proper foundation has been laid.’” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73352
    Case: People v. Hall
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Tukel, Servitto, and Beckering
    Issues:

    Right to a properly instructed jury; People v. Riddle; Self-defense; MCL 780.972(2); People v. Dupree; People v. Mette; People v. Guajardo; Right to resist an unlawful arrest; MCL 750.81d; People v. Moreno; People v. Quinn; Great weight of the evidence; MCR 2.611(A)(1)(e); People v. Lemmon; People v. Lacalamita; New trial; People v. Morris; People v. Bosca; Prosecutorial misconduct; People v. Dobek; People v. Lane; Presumption that jurors follow their instructions & instructions cure most errors; People v. Mahone; Ineffective assistance of counsel; People v. Grant; People v. Dixon; Trial strategy; People v. Foster; People v. Roscoe; Failure to make a futile objection; People v. Ericksen

    Summary:

    The court held that defendant was not denied his rights to a properly instructed jury or the effective assistance of counsel, that the verdict was not against the great weight of the evidence, and that the prosecution did not commit misconduct. He was convicted of resisting and obstructing a police officer, and making a false report of a medical or other emergency. The trial court sentenced him as a fourth-offense habitual offender to 365 days in jail and three years’ probation for the former, and 93 days in jail for the latter. On appeal, the court rejected his argument that he was entitled to a new trial because the trial court failed to instruct the jury on self-defense. “The trial court’s jury instructions were consistent with Moreno and fully informed the jury that it must find the police officers’ arrest lawful in order to find defendant guilty of MCL 750.81d.” It also rejected his claim that the jury’s verdict was against the great weight of the evidence, noting that the evidence did not “preponderate so heavily against the jury’s verdict that it would be a miscarriage of justice to allow the verdict to stand.” The court next rejected his contention that he was denied a fair trial and due process as a result of prosecutorial misconduct, finding he failed to “demonstrate that the prosecutor’s actions at trial deprived him of a fair and impartial trial.” Finally, the court rejected his argument that he was denied the effective assistance of counsel because defense counsel failed to object to several purported instances of prosecutorial misconduct, the trial court’s admission of prior bad acts evidence, and the jury instructions, or to request an instruction on self-defense. It held that an objection to the jury instructions or prior bad acts would have been futile, and that an objection as to alleged prosecutorial misconduct would not have affected the outcome. Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73345
    Case: People v. Ort
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Tukel, Servitto, and Beckering
    Issues:

    Sufficiency of the evidence; Carrying a concealed weapon (CCW); Whether defendant carried the knife as a dangerous weapon; People v. Lueth; People v. Wolfe; People v. Bennett; People v. Cameron; People v. Nowack; MCL 750.227(1); People v. Brown; People v. Triplett; Ineffective assistance of counsel; People v. Leblanc; People v. Trakhtenberg; Strickland v. Washington; People v. Russell; Failure to investigate or call a deputy as a witness; Whether the right to a fair trial was violated by the admission of a sergeant’s testimony; People v. Cain; People v. Carines; Other acts evidence; MRE 404(b)(1); Sentencing; Notice of intent to seek a fourth-offense habitual offender enhancement; People v. Houston; MCL 769.13; Whether the upward departure was reasonable & proportionate; People v. Anderson; People v. Milbourn; People v. Lampe; Assessment of a $60 DNA testing fee; MCL 28.176(5); MCL 28.176(3)

    Summary:

    The court held that there was sufficient evidence that defendant carried a concealed dangerous weapon in violation of MCL 750.227(1), that he was not denied the effective assistance of counsel, and that he was not entitled to resentencing on the basis of an untimely notice of sentencing enhancement. Thus, it affirmed but remanded to the trial court to vacate the $60 DNA assessment fee. He was convicted of CCW. He was sentenced as a fourth-offense habitual offender to 5 to 20 years. Defendant argued that there was insufficient evidence that he carried the knife as a dangerous weapon. The prosecution claimed that the knife discovered in defendant’s vehicle was “any other dangerous weapon.” That was, it “did not claim that the knife was a ‘dagger, dirk, stiletto, [or] a double-edged nonfolding stabbing instrument’ specifically prohibited by MCL 750.227(1), i.e., it was not a dangerous weapon per se.” The evidence “was that the knife was found unsheathed with the handle facing forward.” A sergeant “opined that the knife’s only real utility would be as a stabbing instrument and the evidence indicated that it was easily accessible to defendant. Although defendant stated that his intent in carrying the knife was not for bodily assault or defense, but to defend himself against raccoons, and that he did not know that it was in the car, the jury apparently found that this explanation was not credible.” Based on circumstantial evidence and any reasonable inferences, and drawing all reasonable inferences in support of the jury verdict, a rational trier of fact could determine that he “carried the knife for the purpose of use as a weapon.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73333
    Case: People v. Rankin
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Stephens, O’Brien, and Redford
    Issues:

    Sufficiency of the evidence; People v. Harverson; People v. Reese; People v. Stiller; CSC IV; MCL 750.520e(1)(b); People v. Green; Sexual contact defined; MCL 750.520a(q); Intimate parts; MCL 750.520a(1)(f); Force or coercion; Sexual contact through surprise; MCL 750.520e(1)(b)(v); Denial of motion in limine & admission of the administrative orders as to defendant’s license suspension & surrender; People v. Orr; Relevance; MRE 401; MRE 403; People v. Feezel; People v. Crawford

    Summary:

    Holding that there was sufficient evidence to support defendant’s CSC IV conviction, and that the trial court’s decision to admit the administrative orders as to his license suspension and surrender was within the range of reasonable and principled outcomes, the court affirmed. There was sufficient evidence he engaged in sexual contact. On the date of the incident, S went to defendant’s place of business for her regularly scheduled workout class. No one else was there. S “testified that she never indicated to defendant that she had pain radiating to the front of her ribs and that defendant never explained to her why he felt it was necessary to touch her breast.” There was also sufficient evidence that his intentional touching of S was done for sexual gratification. After defendant touched S’s breast, he told S “to flip over onto her stomach so that he could work on her back and then they would be done.” Once S flipped over, he “jumped onto her buttocks and straddled her.” S testified that she then felt him “rubbing his hard penis up her back getting off . . . .” Defendant rubbing his erect penis on S’s “back was sufficient evidence from which a rational jury could infer beyond a reasonable doubt that defendant touched [S’s] breast and buttocks for a sexual purpose.” Lastly, there was sufficient evidence that he “used force or coercion to commit the sexual act.” The court held that force “or coercion may occur by the element of surprise.” S agreed to have defendant massage her back, but he “failed to disclose that he was no longer licensed.” While massaging S, he reached under S’s “tank top and sports bra and touched her breast, and [S] then ‘flung’ defendant’s hand off. An expert testified that breast tissue is ‘off limits’ for male massage therapists.” Further, S testified that when she felt him “rubbing his penis on her back, she was surprised and said, ‘Oh my God, [J], what are you doing? I am uncomfortable,’” and he “jumped off.” S testified “that she would not have consented to defendant getting on her back if she knew he had an erection. Both expert witnesses testified that a massage therapist should never straddle a client’s backside, and that if sexual arousal occurs, then the massage should end immediately. From this evidence, a rational jury could find beyond a reasonable doubt that defendant achieved sexual contact with” S through surprise.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73343
    Case: People v. Wiertalla
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Borrello, Ronayne Krause, and Riordan
    Issues:

    Other acts evidence of sexual abuse; MCL 768.27a; MRE 404(b); People v. Watkins; People v. McGhee; People v. Mardlin; Effect of temporal gaps; People v. Starr; People v. Solloway; Right to counsel of choice; People v. Akins; People v. Portillo; Waiver; Godinez v. Moran; People v. Carter; Non-reversible error; People v. Krueger; People v. Hall; Expert testimony; People v. Peterson; People v. Thorpe; Judicial bias; People v. McDonald; Cain v. Department of Corrs.; People v. Stevens; Effect of a juror’s inability to follow the law; MCL 750.520h; MCR 2.511(D)(3); People v. Gursky; People v. Lemmon; Excusal of a juror for cause; MCR 6.412(D)(2); Rape-shield law; MCL 750.520j; People v. Adair; Parental presence during forensic interviews with children; MCL 722.628(6); Principle that sexual penetration includes “cunnilingus”; MCL 750.520a(o); People v. Legg; People v. Harris; Jury instruction on a necessarily included lesser offense; People v. Cornell; People v. Lemons; People v. Heflin; Sentencing; People v. Lockridge; Reasonableness & proportionality; People v. Dixon-Bey; People v. Lampe; People v. Walden; Scoring of OV 4; MCL 777.34; Psychological injuries; People v. Anderson; Scoring of OV 13; Continuing pattern of criminal behavior; MCL 777.43(1); Three or more sexual penetrations against a person less than 13 years of age; MCL 777.43(1)(a)

    Summary:

    Holding that there were no errors requiring reversal, the court affirmed defendant’s conviction of 3 counts of CSC I for sexually abusing his former girlfriend’s young daughter beginning when she was 4 years old and ending when she was 9 years old, and his sentence of 35 to 80 years in prison. On appeal, the court rejected his argument that the trial court abused its discretion by admitting other acts testimony that was more prejudicial than probative, noting the factors to be considered under MRE 403 weighed in favor of admission. It also rejected his claim that the trial court denied him his right to counsel of his choice by refusing to appoint an attorney after he advised the trial court that he fired his retained counsel. “The trial court correctly explained to defendant that he had a right to retain any counsel of his choosing, but he did not have a right to have any particular counsel appointed.” In addition, he “did successfully retain his specifically desired attorney, so it is difficult to understand how he can claim any prejudice.” The court next rejected his contention that the trial court erred by permitting an expert in the dynamics of child sexual abuse to testify at trial and at an evidentiary hearing held to determine whether to admit the testimony from the other victims. “Aside from defendant’s own questioning, [the expert’s] testimony fell entirely within the parameters of Peterson. Bolstering the victims’ testimonies preemptively against a likely attack or a likely misapprehension is, in fact, the point.” It further rejected his argument that he was denied a fair trial by judicial bias, noting there was “nothing in the record to suggest that the trial court was anything but scrupulously fair and impartial.” It also rejected his claim that he was denied his right of confrontation, finding he was “still seeking to elicit hearsay to prove the central issue in the case, not for impeachment.” The court next found that the trial court properly denied his motion for a directed verdict, and properly declined to instruct the jury on the cognate offense of CSC II. Finally, the court held that “departing upward from the guidelines and imposing a sentence beyond the 25-year mandatory minimum, the trial court properly considered the seriousness of the offenses and surrounding circumstances as well as the circumstances surrounding the offender. A number of the factors identified by the court were not fully accounted for by the sentencing guidelines.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73377
    Case: United States v. Igboba
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Clay, Cole, and Nalbandian
    Issues:

    Sentencing; Whether defendant’s “amount of loss” argument was preserved for review; United States v. Huntington Nat’l Bank; United States v. Bostic; Plain error review; United States v. Vonner; Calculating the applicable USSG range for a defendant convicted of fraud; USSG § 2B1.1(b)(1) & cmt. n.3(A); United States v. Donadeo; United States v. Ellis; United States v. Wendlandt; § 1B1.3(a)(1)(B); United States v. Burns (Unpub. 6th Cir.); United States v. Howard (Unpub. 6th Cir.); United States v. Wilson; Two-level sophisticated-means enhancement; § 2B1.1(b)(10); United States v. Kraig; United States v. Pierce (Unpub. 6th Cir.); United States v. Ealy (Unpub. 6th Cir.); United States v. Benchick (Unpub. 6th Cir.); United States v. Crosgrove

    Summary:

    [This appeal was from the WD-MI.] The court affirmed the district court, holding that it did not err by attributing $4.1 million in tax fraud losses to defendant-Igboba at sentencing where the preponderance of the evidence showed that these losses could be attributed to him and his individual activity. As a preliminary matter, the court agreed that his argument as to the amount of loss he was responsible for in the scheme to defraud the IRS by filing fraudulent tax returns was not properly preserved for review. Thus, this claim was reviewed for plain error. When calculating the applicable USSG range for fraud, a defendant’s base-offense level is increased as it relates to the actual or intended amount of pecuniary loss resulting from the offense. It appeared that the district court determined that all $4.1 million in losses was attributable to Igboba’s “own criminal activity, rather than others’ acts that were a part of ‘jointly undertaken criminal activity.’” The United States offered the testimony of a special agent from the Treasury Inspector General for Tax Administration, who explained exhibits and spreadsheets relating to the amount of loss attributable to Igboba. Under § 1B1.3(a)(1), the district court must only “make a reasonable estimate” of the loss under the preponderance of the evidence standard. The court held that “the government’s loss-calculation spreadsheet connects each loss to Defendant individually—rather than to the conspiracy more broadly—through specific, identified pieces of evidence.” It found it unnecessary to consider the “‘factors relevant to determining the scope of the criminal activity that a defendant agreed to jointly undertake’” under Donadeo “because § 1B1.3(a)(1)(B) ‘does not apply to conduct that the defendant personally undertakes.’” The court also rejected Igboba's argument that the district court erred by applying § 2B1.1(b)(10)’s two-level sentence enhancement for the use of “sophisticated means” to perpetrate fraud. The district court ruled that the enhancement was supported by his “use of a VPN, the Tor browser, the dark web, multiple bank accounts, and multiple email aliases in committing his offense.” It also noted the difficulty of acquiring the taxpayer personally identifying information “used to file the fraudulent returns.” Additionally, the scheme involved corporate shell companies.

    Full Text Opinion

  • Election Law (1)

    Full Text Opinion

    This summary also appears under Constitutional Law

    e-Journal #: 73378
    Case: SawariMedia, LLC v. Whitmer
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Norris, Clay, and Larsen
    Issues:

    Whether the State defendants were entitled to an emergency stay of the district court’s order declining to enforce the number of signatures necessary to get a proposal on the ballot; In re Flint Water Cases; Service Employees Int’l Union Local 1 v. Husted; Daunt v. Benson; Louisiana-Pac. Corp. v. James Hardie Bldg. Prod., Inc.; Nken v. Holder; DV Diamond Club of Flint, LLC v. Small Bus. Admin.; Likelihood of success on the merits; Whether the burden on plaintiffs’ access to the ballot was “severe”; Anderson v. Celebrezze; Burdick v. Takushi; Esshaki v. Whitmer; Thompson v. DeWine; Request for en banc review of whether the Anderson-Burdick framework should apply to ballot initiatives’ signature requirements; Schmitt v. LaRose; Committee to Impose Term Limits on OH Supreme Court & to Preclude Special Legal Status for Members & Employees of OH Gen. Assembly v. Ohio Ballot Bd.; Initiative & Referendum Inst. v. Walker (10th Cir.); Marijuana Policy Project v. United States (D.C. Cir.)

    Summary:

    [This appeal was from the ED-MI.] In an order, the court denied defendants-State of Michigan officials an emergency stay of a district court order that ruled the State’s refusal to suspend the signature requirements for proposed ballot initiatives during the pandemic violated plaintiffs’ First Amendment rights. Plaintiffs, proponents of a criminal-justice reform initiative that stalled when the Governor’s “stay-at-home” orders went into effect, requested that the State put aside the signature requirements during the pandemic. When the State refused, they sued in district court, alleging that “the combination of the stay-at-home order and the signature requirement violates the First Amendment by creating a severe restriction on their access to the ballot.” The district court agreed and enjoined enforcement of the signature requirement. The State proposed an extension of the time in which to gather signatures, which the district court rejected. It then moved for an emergency stay of the district court’s order pending appeal. The court reviewed the requirements for a stay and held that defendants were not likely to succeed on the merits. It rejected their argument that the district court erred by ruling that the burden put on plaintiffs’ access to the 2020 general election ballot was “severe” under the Anderson-Burdick framework, which is applied to cases involving First Amendment challenges to ballot-access restrictions. The court held that the burden placed on plaintiffs was “identical” to those held to be severe in Esshaki, and that defendants’ reliance on Thompson was misplaced. It then held that defendants were unlikely to succeed on the merits of their argument that the district court erred by refusing their proposed remedy—extension of the petition deadline—where the proposed extended deadline effectively granted, at most, a 35-day extension. The court noted that the State requested an en banc review to consider the argument that the Anderson-Burdick framework should not apply to ballot initiative signature requirements, which was under consideration.

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    e-Journal #: 73357
    Case: Blight v. Blight
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, Stephens, and O’Brien
    Issues:

    Divorce; Motion to enforce a consent judgment of divorce (JOD) relative to the property settlement; Quade v. Quade; Enforcing unambiguous contracts as written; Kendzierski v. Macomb Cnty.; Whether the language as to stock redemption proceeds in the JOD was ambiguous; Raska v. Farm Bureau Mut. Ins. Co. of MI; Klapp v. United Ins. Group Agency, Inc.; Extrinsic evidence; Shay v. Aldrich; The parties’ intent

    Summary:

    The court held that the trial court erred in determining the JOD was ambiguous. The plain language of ¶ 19 of the JOD indicated that the redemption proceeds were “to be calculated on a proportional basis, in relation to the amount of time [plaintiff-ex-husband] owned the stock while the parties were married and the total number of years” he owned the stock before redemption. Thus, the court reversed the order granting defendant-ex-wife’s motion to enforce a consent JOD relative to the property settlement. Plaintiff argued that the trial court erred by determining that the language as to his stock redemption proceeds in the JOD was ambiguous. He contended that it also “erred in its interpretation of the allegedly ambiguous provision of the JOD, when it found that the entirety of the proceeds should be halved, rather than distributing the proceeds proportionally on the basis of the amount of time” he owned the shares. The court held that “plaintiff correctly based his calculation of defendant’s marital portion on the total 102,857 shares of restricted stock” he owned when the JOD was entered. Defendant nevertheless claimed that the ambiguity of ¶ 19 (the division of plaintiff’s restricted stock redemption proceeds) of the JOD was “apparent because the parties disagree on the correct interpretation regarding the remainder of the paragraph, and notes that the trial court declared at multiple instances during the proceeding that it was ambiguous.” However, her interpretation of ¶ 19 would leave the final sentence of the paragraph, which set the date plaintiff received the stock shares as 4/20/11, “as surplusage. Were defendant to receive 50% of the redemption proceeds of the 102,857 shares, regardless of when the shares were redeemed, the date at which plaintiff received the shares would be irrelevant.” Thus, the trial court erred in finding the language of ¶ 19 of the JOD ambiguous. Further, even if the language of ¶ “19 of the JOD were found to be ambiguous” and it properly considered extrinsic evidence, “the trial court erred in determining that the intent of the parties was to give defendant 50% of the total redemption proceeds.”

    Full Text Opinion

  • Native American Law (1)

    Full Text Opinion

    This summary also appears under Termination of Parental Rights

    e-Journal #: 73364
    Case: In re Howard
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Tukel, Servitto, and Beckering
    Issues:

    Termination under §§ 19b(3)(c)(i), (h), & (j); Principle that only one statutory ground must be met; In re VanDalen; Reasonable reunification efforts; In re Hicks/Brown; Principle that the state is not relieved of its duties to engage an absent parent merely because the parent is incarcerated; MCR 2.004(A)-(C); MCR 2.004(E)(1) & (4); In re Mason; Effect of a failure to engage a parent in child protection proceedings; In re DMK; Creation of a service plan; MCL 712A.18f(3)(d); A parent’s commensurate responsibility to participate in & benefit from the services offered; In re Frey; In re TK; Principle that a failure to comply with the plan is evidence of a parent’s inability to provide proper care & custody; In re JK; Challenge to the adequacy of the services offered; In re Fried; Whether a child is considered Native American under the Indian Child Welfare Act (ICWA) (25 USC § 1901 et seq.); In re Morris

    Summary:

    Holding that the DHHS made reasonable reunification efforts, that the ICWA did not apply, and that at least one statutory ground was met, the court affirmed termination of respondent-father’s parental rights to the child. His rights were terminated based primarily on his lengthy incarceration. On appeal, the court rejected his argument that the trial court erred by finding the DHHS made reasonable efforts to preserve the family because it did not use reasonable efforts to communicate with him. The DHHS “was found to have made reasonable efforts by developing a service plan, interviewing suitable relatives for placement, providing foster care case management, and offering case management services.” In addition, he “was provided telephonic communication for every stage of the proceedings.” And while he was “unable to attend several dispositional review hearings dispersed throughout the proceedings, arrangements were made by DHHS to allow his attendance.” Further, the DHHS “tailored the service plan to respondent on the basis of his limited access as an inmate in a Tennessee prison, but he failed to participate in the services in which he could have participated and ultimately did not benefit from these services.” Moreover, the ICWA “did not apply to the child custody proceedings because [the child] was not considered an Indian child.” The court also rejected his claim that the DHHS failed to prove a statutory ground for termination. “Because respondent did not voluntarily grant legal custody to a fit and appropriate relative for the remainder of his incarceration, despite the two-year duration of these child protection proceedings, the trial court did not err in determining that there was no reasonable likelihood of rectification.” In addition, his “failure to minimally comply with the terms of his service plan that were capable of being addressed during his incarceration support[ed] the trial court’s finding that [he] did not provide care and custody of [the child], and was unlikely to do so in the future.” Finally, respondent will be imprisoned for such a period that the child “would be deprived of a normal home for a period exceeding two years,” and there was “no reasonable expectation that [he] could provide proper care and custody in that timeframe.”

    Full Text Opinion

  • Negligence & Intentional Tort (1)

    Full Text Opinion

    This summary also appears under School Law

    e-Journal #: 73330
    Case: Kroll v. DeMorrow
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Meter, Swayer, and Cameron
    Issues:

    “Gross negligence”; MCL 691.1407(8); Maiden v. Rozwood; Tarlea v. Crabtree; A school bus driver’s failure to activate the overhead caution lights; MCL 257.1855(2)(b); Rebuttable presumption of negligence created by violation of a statute; Candelaria v. BC Gen. Contractors, Inc.; Effect of evidence of ordinary negligence; Xu v. Gay; Vicarious liability; MCL 691.1407; The motor vehicle exception to governmental immunity; MCL 691.1405; Goodhue v. Department of Transp.; Yoches v. Dearborn; Montague Area Public Schools (MAPS)

    Summary:

    On remand from the Michigan Supreme Court, the court held that defendant-school bus driver (DeMorrow) was entitled to summary disposition because there was no genuine issue of material fact that she was not grossly negligent and thus, defendant-school district (MAPS) was entitled to summary disposition because, absent DeMorrow’s gross negligence, MAPS could not be held vicariously liable. As a result, the court again reversed the trial court’s order denying defendants’ motion for summary disposition and remanded. There was conflicting evidence as to whether DeMorrow activated the bus’s caution light before the accident. The court held “that, even accepting plaintiffs’ evidence that DeMorrow did not activate the bus’s lights, this omission does not support a conclusion that DeMorrow was grossly negligent.” It determined that her “failure to activate the overhead caution lights, at most, creates a rebuttable presumption that DeMorrow was negligent” – that she did not “exercise the care that a reasonably careful person would use under the circumstances.” The evidence did not create a genuine issue of material fact that her “conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Where she did not give plaintiff-Loren “any instructions to cross the road and DeMorrow did not know that Loren had started to cross the road, reasonable minds could not conclude that DeMorrow, by failing to activate the caution lights, simply did not care about the safety or welfare of Loren.” Thus, the court held that she was not grossly negligent. Therefore, she was entitled to summary disposition. Having resolved the gross negligence issue, the court also held MAPS could not be held vicariously liable.

    Full Text Opinion

  • School Law (1)

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 73330
    Case: Kroll v. DeMorrow
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Meter, Swayer, and Cameron
    Issues:

    “Gross negligence”; MCL 691.1407(8); Maiden v. Rozwood; Tarlea v. Crabtree; A school bus driver’s failure to activate the overhead caution lights; MCL 257.1855(2)(b); Rebuttable presumption of negligence created by violation of a statute; Candelaria v. BC Gen. Contractors, Inc.; Effect of evidence of ordinary negligence; Xu v. Gay; Vicarious liability; MCL 691.1407; The motor vehicle exception to governmental immunity; MCL 691.1405; Goodhue v. Department of Transp.; Yoches v. Dearborn; Montague Area Public Schools (MAPS)

    Summary:

    On remand from the Michigan Supreme Court, the court held that defendant-school bus driver (DeMorrow) was entitled to summary disposition because there was no genuine issue of material fact that she was not grossly negligent and thus, defendant-school district (MAPS) was entitled to summary disposition because, absent DeMorrow’s gross negligence, MAPS could not be held vicariously liable. As a result, the court again reversed the trial court’s order denying defendants’ motion for summary disposition and remanded. There was conflicting evidence as to whether DeMorrow activated the bus’s caution light before the accident. The court held “that, even accepting plaintiffs’ evidence that DeMorrow did not activate the bus’s lights, this omission does not support a conclusion that DeMorrow was grossly negligent.” It determined that her “failure to activate the overhead caution lights, at most, creates a rebuttable presumption that DeMorrow was negligent” – that she did not “exercise the care that a reasonably careful person would use under the circumstances.” The evidence did not create a genuine issue of material fact that her “conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Where she did not give plaintiff-Loren “any instructions to cross the road and DeMorrow did not know that Loren had started to cross the road, reasonable minds could not conclude that DeMorrow, by failing to activate the caution lights, simply did not care about the safety or welfare of Loren.” Thus, the court held that she was not grossly negligent. Therefore, she was entitled to summary disposition. Having resolved the gross negligence issue, the court also held MAPS could not be held vicariously liable.

    Full Text Opinion

  • Termination of Parental Rights (1)

    Full Text Opinion

    This summary also appears under Native American Law

    e-Journal #: 73364
    Case: In re Howard
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Tukel, Servitto, and Beckering
    Issues:

    Termination under §§ 19b(3)(c)(i), (h), & (j); Principle that only one statutory ground must be met; In re VanDalen; Reasonable reunification efforts; In re Hicks/Brown; Principle that the state is not relieved of its duties to engage an absent parent merely because the parent is incarcerated; MCR 2.004(A)-(C); MCR 2.004(E)(1) & (4); In re Mason; Effect of a failure to engage a parent in child protection proceedings; In re DMK; Creation of a service plan; MCL 712A.18f(3)(d); A parent’s commensurate responsibility to participate in & benefit from the services offered; In re Frey; In re TK; Principle that a failure to comply with the plan is evidence of a parent’s inability to provide proper care & custody; In re JK; Challenge to the adequacy of the services offered; In re Fried; Whether a child is considered Native American under the Indian Child Welfare Act (ICWA) (25 USC § 1901 et seq.); In re Morris

    Summary:

    Holding that the DHHS made reasonable reunification efforts, that the ICWA did not apply, and that at least one statutory ground was met, the court affirmed termination of respondent-father’s parental rights to the child. His rights were terminated based primarily on his lengthy incarceration. On appeal, the court rejected his argument that the trial court erred by finding the DHHS made reasonable efforts to preserve the family because it did not use reasonable efforts to communicate with him. The DHHS “was found to have made reasonable efforts by developing a service plan, interviewing suitable relatives for placement, providing foster care case management, and offering case management services.” In addition, he “was provided telephonic communication for every stage of the proceedings.” And while he was “unable to attend several dispositional review hearings dispersed throughout the proceedings, arrangements were made by DHHS to allow his attendance.” Further, the DHHS “tailored the service plan to respondent on the basis of his limited access as an inmate in a Tennessee prison, but he failed to participate in the services in which he could have participated and ultimately did not benefit from these services.” Moreover, the ICWA “did not apply to the child custody proceedings because [the child] was not considered an Indian child.” The court also rejected his claim that the DHHS failed to prove a statutory ground for termination. “Because respondent did not voluntarily grant legal custody to a fit and appropriate relative for the remainder of his incarceration, despite the two-year duration of these child protection proceedings, the trial court did not err in determining that there was no reasonable likelihood of rectification.” In addition, his “failure to minimally comply with the terms of his service plan that were capable of being addressed during his incarceration support[ed] the trial court’s finding that [he] did not provide care and custody of [the child], and was unlikely to do so in the future.” Finally, respondent will be imprisoned for such a period that the child “would be deprived of a normal home for a period exceeding two years,” and there was “no reasonable expectation that [he] could provide proper care and custody in that timeframe.”

    Full Text Opinion

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