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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Action under 42 USC § 1983 asserting violation of an inmate’s Eighth & Fourteenth Amendment rights; Qualified immunity; Failure-to-protect claim; Farmer v Brennan; Failure to ensure an inmate received their essential medications; “Substantial risk of serious harm”; Richmond v Huq
The court affirmed the district court’s ruling denying defendants-jail nurses (Snow and Watson) qualified immunity where prior case law established that neglecting to provide an inmate with essential medication could constitute a constitutional violation. Plaintiff-estate’s decedent, Wiertella, died of hypertensive cardiovascular disease while serving a 27-day sentence in an Ohio jail. Plaintiff alleged violations of the Eighth and Fourteenth Amendments under § 1983. Plaintiff’s expert testified that “‘the discontinuance and failure to provide medications contributed to [Wiertella’s] blood pressure spiking and his risk of sudden death.’ He concluded in his report that ‘[b]ut for the failure to provide those medications and a CPAP machine, in my opinion, Mr. Wiertella would not have died how and when he did.’” The district court denied defendants’ motions for summary judgment based on qualified immunity. The court found that it properly concluded based on Watson’s testimony that she “was aware of a substantial risk to Wiertella if he did not timely receive his essential medications. Yet Watson did nothing to ensure that Wiertella received his blood-pressure medications—or any medication other than for his diabetes—in a timely manner. This was unreasonable.” As to Snow, the court determined that based on the “evidence, a jury could find that Snow was aware of the substantial risk that Wiertella faced, and that she unreasonably failed to ensure that [he] timely received all his essential medications.” It further held that plaintiff met the requirement that it “‘identify a case with a similar fact pattern that would have given “fair and clear warning to officers” about what the law requires.’” In Richmond, an inmate was on psychiatric medications that were not provided. In that case, waiting for her “to have her psychiatric conditions addressed at an upcoming psychiatrist appointment scheduled 14 days later was not deemed sufficient to address her serious medical needs.” In addition, in Richmond the court “held that prior caselaw had clearly established that ‘neglecting to provide a prisoner with needed medication’ could ‘constitute a constitutional violation.’” As a result, that case presented “a ‘similar fact pattern’ that gave Snow and Watson a ‘fair and clear warning’ that failing to ensure that Wiertella timely received his essential medications was a violation of his constitutional rights under the Eighth and Fourteenth Amendments.” Thus, the court found that the district court did not err in ruling that they were not entitled to qualified immunity. Remanded.
Claim for foreclosure of a construction lien; The Construction Lien Act; MCL 570.1107(1) & (2); MCL 570.1118(1); Suing deceased people; Alternate service; Breach of contract; Subject-matter jurisdiction; Hodge v State Farm Mut Auto Ins Co; Amount in controversy; Unjust enrichment; Sheehan’s on the Green, Inc. (SOTG)
The court held that plaintiff-Core could not state a claim for foreclosure of a construction lien against defendants-Larry and Joan Sheehan (referred to as the parents) even if they were still alive. The trial court also properly dismissed Core’s claim against defendants-SOTG and Daniel Sheehan (referred to as the son) for breach of contract under MCR 2.116(C)(4) for lack of subject-matter jurisdiction due to the amount in controversy. Finally, Core’s unjust enrichment claims were also properly dismissed – under MCR 2.116(C)(8) as to the parents and under MCR 2.116(C)(4) as to the son and SOTG. Core recorded the construction lien against property owned by the parents, “who died years before the signing of a contract for improvement of the property. That contract” was signed by Core and the son, who signed on behalf of SOTG. Core later recorded a construction lien on the property and filed this suit. The court concluded “the trial court correctly identified defects in each of Core’s three claims[.]” As to the first claim, Core only asked for foreclosure against the parents. As “a construction lien attaches to the ‘interest of the owner or lessee who contracted for the improvement, including any subsequently acquired legal or equitable interest,’ MCL 570.1107(2), and the parents did not contract for the improvement that Core performed, Core could not state a claim against” them even if they were still living. Further, its “attempt to seek foreclosure of the construction lien against the parents runs afoul of the settled principle that deceased people generally cannot be sued in their individual capacity.” The court found “no merit in Core’s view that the trial court should have permitted the clerk’s entries of default against the parents to stand.” It noted that “Core filed a motion for alternate service upon individuals whom it knew were dead, and it made no effort to amend its complaint to name” their estates instead. As to the breach of contract claim, it sought “‘a judgment against SOTG and [the son] in the amount of $6,775.00’” plus interest, costs, and attorney’s fees. Thus, the claim fell under the jurisdiction of the district court, not the trial court. And this claim against SOTG and the son could not come within the circuit court’s subject-matter jurisdiction “to address the construction-lien claim against the parents.” Affirmed.
Expert testimony; MRE 702; Jury composition; Fair cross-section requirement; The absolute-disparity test; Systematic exclusion; Motion for judicial disqualification; MCR 2.003(C)(1); Motions for a mistrial; Sentencing; Proportionality; Consecutive sentencing; MCL 750.520b(3); Assault with intent to commit criminal sexual penetration (AWICSP)
The court held that the trial court did not abuse its discretion when it admitted expert testimony. It rejected defendant’s jury composition challenge. He also did not meet his burden of overcoming the heavy presumption of impartiality as to judicial disqualification. Further, the trial court did not abuse its discretion in denying his motions for a mistrial. There was no merit in “his challenge to the proportionality of his sentences, which were the statutory minimum prison terms that the trial court could impose[.]” Finally, “the trial court did not abuse its discretion when it exercised the discretion afforded by our Legislature to impose consecutive sentences.” He was convicted of CSC I, CSC II, and AWICSP. He was sentenced as a fourth-offense habitual offender to “a minimum prison term of 25 years on each count of conviction. The trial court also ordered the” CSC I prison term to run consecutive to the term for AWICSP. Defendant asserted, among other things, that prosecution expert-C “was not qualified to furnish expert testimony, and that the expert testimony from [C] crossed several lines established by MRE 702 and a pretrial order.” The court held that the “trial court made all of the findings required under MRE 702 to qualify an expert witness, and then stated that ‘[t]he credibility of every witness, including an expert, is in the hands of the capable jury.’ The trial court did not abuse its discretion when it qualified [C] as an expert witness.” While defendant persuasively argued that C’s “expert testimony in numerous other cases has been declared improper, no prior case in this Court or our Supreme Court has resulted in a ruling that [C] is not qualified to provide expert testimony.” The court found that C’s “expert testimony has caused serious problems in numerous prior cases. but the trial court acted within its discretion when it permitted him to testify, just as more than 300 other trial courts have chosen to do.” Also, defendant did not establish that the plain error the court found in part of C’s testimony “affected his substantial rights, so he” failed to show that reversal was warranted. Finally, to the extent that a portion of C’s “expert testimony was improper because it did not meet the requirements of MRE 702 or it violated the pretrial order’s prohibition on describing ‘factual scenarios in which children are more likely to fabricate allegations of sexual assault,’ it was defense counsel who raised the factual scenarios. Thus, defendant has not established that plain error occurred in that regard.” He also did not satisfy the second and third prongs of his fair cross-section claim. Affirmed.
Sufficiency of the evidence for CSC I convictions under MCL 750.520b(1)(f); “Force or coercion”; Lack of corroboration; MCL 750.520h; Sentencing; Reasonableness & proportionality; Effect of a within-guidelines sentence; People v Posey; Cruel or unusual punishment; People v Bullock
Holding that there was sufficient evidence to support defendant’s CSC I convictions under MCL 750.520b(1)(f) and rejecting his sentencing challenges, the court affirmed. He was sentenced as a second-offense habitual offender to concurrent terms of 18 to 25 years, within his recommended guidelines range. He argued that there was insufficient evidence that the victim (BS) “was forced or coerced to engage in sex with” him. She testified that he “attacked her and sexually assaulted her in the back room of [a house] where she was waiting for drugs. [She] explained that defendant penetrated her vaginally and anally despite her protests. To do so, BS testified that [he] held her down by her wrists and pinned her legs down with his knees. Therefore, BS adequately described acts involving the use of force to accomplish sexual penetration.” Defendant appeared to contend “that any evidence of force or coercion was lacking because, according to [him], any sexual conduct was consensual. A key part of [his] testimony was that he appeared to describe only vaginally, not anally, penetrating BS; however, both the physical examination and the DNA results supported BS’s version of events that [he] penetrated her both vaginally and anally. If the jury found that BS’s testimony was credible, it could then find that defendant used force to have sex with [her], thereby rejecting [his] claim that it was consensual.” Further, to the extent he asserted “the evidence was insufficient because there was no corroboration of BS’s testimony,” pursuant to MCL 750.520h, a victim’s testimony “need not be corroborated in prosecutions under MCL 750.520b.” While there was evidence that went to BS’s credibility, including that she “previously made false allegations against her husband and falsely admitted to a crime that someone else committed[,]” it was for the jury to weigh that evidence. The court also rejected defendant’s claims that his sentences were unreasonable and disproportionate, and amounted to cruel and/or unusual punishment. As to the former, he did not present “any unusual circumstances” that led the court “to conclude that his presumptively proportionate sentences are disproportionate.” As to the latter, he could not “meet his burden in proving that his sentences amount to cruel or unusual punishment under Bullock.” Further, because they were proportionate, they were “not cruel or unusual.”
Subject-matter jurisdiction over appellant’s petition for a contested case hearing; Natural Resources & Environmental Protection Act (NREPA); MCL 324.30110(2) & 324.30319(2); Whether the action or inaction forming the basis for the petition must relate to a permit application; Statutory interpretation; Administrative law judge (ALJ); Department of Environment, Great Lakes, & Energy (EGLE)
The court reversed “the rulings of the ALJ and circuit court to the extent that they held that the ALJ lacked subject-matter jurisdiction over appellant’s petition as it” related to NREPA Parts 301 and 303 because neither MCL 324.30110(2) nor “324.30319(2) require the filing of a permit application under Part 301 or Part 303 to be invoked.” Appellant contended “that the ALJ and the circuit court erred by adding a requirement to the texts of MCL 324.30110(2) and MCL 324.30319(2); it contends that both statutes state that a person ‘aggrieved by any action or inaction of the department’ may ‘request a formal hearing on the matter involved,’ and do not say that the action or inaction must relate to a permit application.” The court agreed, concluding “the statutes plainly do not say anything about a permit application, so the ALJ and circuit court erred by adding that requirement to the statutes. MCL 324.30110(2) and MCL 324.30319(2) both simply state that a person aggrieved by an action or inaction of the department may request a hearing. These statutes therefore granted the ALJ subject-matter jurisdiction to hear appellant’s petition to the extent that the petition involved matters related to Parts 301 and 303.” The court noted that the “language ‘any action or inaction of the department’ is broad, . . . and nothing about the statutes’ language suggests that the statutes only apply when the department acts or fails to act with respect to a permit application.” This conclusion was “reinforced by the fact that, as appellant rightly notes, other sections in different parts of the NREPA explicitly limit contested case proceedings to actions that the department takes with respect to a permit or an application for a permit.” The court concluded “that MCL 324.30110(2) and MCL 324.30319(2) are not limited to the department’s ‘action or inaction’ with respect to a permit or an application for a permit under Part 301 or Part 303. The ALJ and the circuit court erred by adding this requirement to these statutes.” However, the court found that “the ALJ and circuit court did not err by recognizing that there must be some limit on the ‘any action or inaction’ language of MCL 324.30110(2) and” 324.30319(2). Thus, reading it in context, the court held “that the language ‘any action or inaction of the department’ as used in MCL 324.30110(2) and MCL 324.30319(2) is limited to the action or inaction of the EGLE with respect to Part 301 and Part 303, respectively.” It emphasized that its “ruling is a narrow one.” The ALJ was free on remand “to address any of the parties’ remaining disputes, including whether appellant is ‘aggrieved,’ whether a hearing is required, and what relief, if any, is available.” Remanded.
City charter violation; Creation of an advisory committee; “Multiple member bodies” (MMBs); The American Rescue Plan Act (ARPA); Alleged violation of the Open Meetings Act (OMA); “Public body”; Davis v Detroit Fin Review Team; “Governing body”; Delegation; Pinebrook Warren, LLC v City of Warren
Holding that the advisory committee (the ARPA committee) at issue was an MMB under defendant-City of Flint’s charter, the court concluded plaintiffs stated a claim that the committee’s formation violated a provision of the charter. But it held that the ARPA committee was not a public body under the OMA. Thus, it found that the trial court erred in granting defendants summary disposition on the charter violation claim but correctly granted them summary disposition on the OMA claim. The committee was formed “to advise the city on funding allotments under the” federal ARPA. On appeal, the court agreed with plaintiffs that “the ARPA committee meets the definition of an MMB” set forth in the charter “as it is an ‘advisory committee . . . composed of more than one person, and acting, or purporting to act, in the exercise of official duties.’” It concluded “that under a plain reading of the charter, and accepting the allegations in plaintiffs’ complaint as true and construing them in a light most favorable to plaintiffs, ‘acting or purporting to act in the exercise of official duties’ encompasses the actions with which the committee was charged. . . . Taking the allegations of the complaint as true, [defendant-]Mayor Neeley formed the committee to play an official role in the exercise of a city function, i.e., the allocation of grants.” In addition, the committee “had all of the trappings of an official, city-sanctioned endeavor.” The court found that at “the very least, plaintiffs have sufficiently alleged that the ARPA committee purported to carry out official duties at the city’s direction, which is enough to satisfy the definition of an MMB under Flint Charter, § 1-405.” It also agreed “with plaintiffs that, on the basis of the factual allegations in their complaint, the ARPA committee’s formation and operation appears to violate the city charter. As stated, it was not established by ordinance or resolution as required by Flint Charter, § 6-101(A). Nor were appointments to the committee approved by city council as required by Flint Charter, § 6-101(B)(3).” But the court concluded plaintiffs failed to state a claim for violation of “the OMA, given that the committee’s recommendations remained subject to review by Mayor Neeley and the city council such that the committee cannot be considered a public body.” Affirmed in part, reversed in part, and remanded.
Protection of personal information from the Michigan Tax Tribunal’s (MTT) public database; Redactions; Poverty exemption on a principal residence; Spranger v Warren; MCL 211.7u(4); Finding that retirement accounts constituted liquid assets
Determining that several of petitioner-Gong’s arguments in this poverty exemption case were abandoned, the court rejected her claims that the MTT erred in (1) denying her “motions to protect her personal identifiable and confidential information” and (2) determining “that retirement accounts constituted liquid assets.” In this consolidated appeal, she appealed (1) the MTT’s “orders denying reconsideration of the previous orders denying Gong’s request to protect her personal identifiable and confidential information from the MTT public database” and (2) the MTT’s “final opinion and judgment denying her 2023 exemption claim.” As to the personal information issue, the court found that “Gong’s general allegation—that the redactions made in this case were not thorough enough—lacks merit.” It noted that she now asserted that before performing any redactions, the MTT “immediately released all evidence submitted by” respondent-township. But this argument was “unfounded because: (1) there is no evidence proving this allegation, and (2) it directly contradicts Gong’s position before the” MTT. The court concluded that the MTT “did not err by redacting the township’s evidence under Mich. Admin. Code, R. 792.10203(h) and MCR 1.109(D)(9)(a). After a thorough review of the records in this case,” it determined that, generally, the redactions made were in alignment with the MTT’s orders, but it remanded “for the ministerial task of redacting the remaining financial account numbers—in accordance with Mich. Admin. Code, R. 792.10203(h) and MCR 1.109(D)(9)(a)(v)—from the” MTT’s evidence in one case. The court also found no merit in Gong’s general allegations that a retirement account cannot be considered a liquid asset. Evidence showed that she had investment and retirement accounts and self-managed accounts. “Because Gong could choose to withdraw money from these accounts at any time, albeit with a penalty fee, the [MTT] did not err by determining that the township’s poverty exemption guidelines included retirement accounts as liquid assets.” It added that, under the township’s poverty exemption guidelines, “assets outside of the wide, listed array, such as retirement accounts, may also constitute liquid assets.” Affirmed but remanded.
Termination under § 19b(3)(j); Judicial notice of a separate personal protection order (PPO)
The court held that the trial court in this termination proceeding “did not commit a ‘clear or obvious’ error” in taking judicial notice of a separate PPO case between respondent-mother and the child’s father. Further, as to the termination of her parental rights under § (j), the court found no factual or legal support for her claim “that she posed no possible harm to” the child. Thus, it affirmed the trial court’s order terminating her parental rights. The child’s father was not a respondent in the case, which began about a month after the mother’s “home was raided by a police drug taskforce” and police “confiscated a dangerous butane-based THC extraction lab from her garage.” The child was placed in his father’s care “in an ex parte custody order entered in a custody case between the” parents. The father was also granted a PPO against the mother. “The same judge presided over this case, the custody case, and the PPO proceeding.” On appeal, the court found that it was “permissible for the trial court to take judicial notice in this case of the files from the other PPO matters over which the same trial judge presided. Furthermore, much of the substance of what happened in the other PPO matters was placed on the record in this case.” In addition, “the trial court emphasized that ‘the PPO hearing demonstrated that she clearly violated [it]s order’ and that [her] conduct was ‘a very blatant violation of [its] order’ and not ‘a grey area.’” Further, the record did not show that it terminated her “parental rights on the basis of facts established by an inadequate evidentiary standard.” The court also noted the trial court indicated that her “conduct in the PPO proceeding was merely part of why it believed she could not be relied on to obey [its] orders. The trial court voluminously recounted evidence in the present case showing that [she] was untrustworthy.” The court found that she could not “show that the trial court’s consideration of the PPO files had any effect on the outcome of the proceeding.” As to § (j), the court concluded the “trial court appropriately found no reason to believe that [the] mother would not continue bringing drugs or dangerous individuals into her home, thereby exposing” the child to more harm.
Sixth Amendment right to counsel; Finding of aggravated circumstances; MCL 722.638(1); “Torture”
In these consolidated appeals, the court held that regardless “whether the finding of aggravated circumstances is a critical stage of termination proceedings for purposes of the Sixth Amendment right to counsel, the record reflects that respondent-father was not deprived of his right to counsel.” Also, it concluded “that the trial court did not clearly err by finding clear and convincing evidence that” respondents-parents subjected the child, EP, “to aggravated circumstances pursuant to MCL 722.638(1)(a)(iii) (torture), (iv) (serious impairment of an organ), and (v) (life-threatening injury).” The father first argued “that the trial court violated his Sixth Amendment right to counsel because there was a complete denial of counsel at a critical stage of the proceeding.” He claimed that he was denied counsel at a critical stage “because his counsel left the permanency planning hearing.” But the court noted that “the proceeding at which the pivotal issues of aggravated circumstances and the DHHS’s obligations were addressed occurred one month before this hearing, at which [the father] was represented by counsel. The trial court merely noted no objections to that proceeding at the permanency planning hearing.” The court was “cognizant that MCR 3.915(B) states that a respondent is entitled to an appointed attorney at any hearing conducted under the court rules in a termination proceeding. But, even if the trial court erred by failing to adjourn the permanency planning hearing so that [his] counsel could attend, [the father] has not shown that he was prejudiced.” The court noted that “at the permanency planning hearing, the trial court merely confirmed what was already entered in a written order on the issue of aggravated circumstances and the provision of services.” The record also reflected that the father “was offered services and declined them.” Thus, he did not show “that counsel’s absence from the permanency planning hearing affected the outcome of the proceedings.” Next, both respondents argued that the DHHS “failed to present clear and convincing evidence that they subjected EP to aggravated circumstances; therefore, they were wrongfully deprived of reunification services by the DHHS.” Again, the court disagreed. It concluded that they did not show “that the trial court clearly erred by finding aggravated circumstances.” It held that “the trial court correctly ruled that the presence of aggravated circumstances relieved the DHHS of its duty to make reasonable efforts to reunify the family.” Affirmed.
Private zoning enforcement action; Lawful nonconforming use
The court held that the trial court did not err by ruling “that the recent use of the east side of the” defendant-sport shooting range “was not an unlawful expansion of defendants’ prior nonconforming use.” This private zoning enforcement case arose from plaintiffs’ concerns of increased shooting activity at the range. The court noted that “the range was operating as a prior nonconforming use under both the 1979 ordinance and the current ordinance.” The crux of the issue here was “whether the sporting clays course on the east side of the property was unlawfully extended or enlarged in 2021, in violation of 2008 Ordinance, § 19.03(1)(a).” The court concluded that it was not. It found “that the trial court did not clearly err by determining that the Spring 2021 upgrades were merely a continuation of the range’s legal, prior nonconforming use status. The upgrades did not amount to an entirely new shooting concept or facility. Instead, the upgrades were made to regulate the shooting range and effectuate a safer experience for the range’s customers. Importantly, the same style of shooting took place before and after the upgrades were made. Accordingly, the continuation of the nonconforming use of the property did not expand the previous nonconforming use.” Affirmed.