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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Persons with Disabilities Civil Rights Act (PWDCRA); Court of Claims Act (COCA); MCL 600.6431; COCA notice requirement; Christie v Wayne State Univ; Six-month notice period; MCL 600.6431(4); “Personal injuries”; Employment discrimination; Chiravuri v University of MI; Sovereign immunity waiver; Notice of intent (NOI); Posttraumatic stress disorder (PTSD); Michigan State Police (MSP); Elliott-Larsen Civil Rights Act (ELCRA)
The court held that a PWDCRA employment-discrimination claim against the state is a claim for “personal injuries” under MCL 600.6431(4), so the COCA’s six-month notice period applied. Plaintiff, an MSP employee, alleged his PTSD was improperly factored into defendant’s decision to demote him by three ranks after an investigation into a promotion scandal. He filed his NOI about nine months after the discipline appeal hearing. The trial court denied defendant’s summary disposition motion, concluding the one-year notice period applied. On appeal, the court held that “personal injuries” is a legal term of art and includes “any invasion of a personal right,” not only physical harm. It reasoned the PWDCRA guarantees the civil right to obtain employment without disability discrimination, and plaintiff’s claim therefore fit within the definition of “personal injury.” The court rejected plaintiff’s reliance on Christie because the plaintiff there never filed any notice, so “the timing of her claim or notice was not relevant” and the Supreme Court did not decide which COCA subsection applied. It also declined to follow Chiravuri’s conclusion that ELCRA claims are governed by § 6431(1), reasoning that earlier cases cited § 6431(1) only because no notice had been filed at all, and Chapter 63’s definition of personal injury did not control Chapter 64 COCA claims. Because plaintiff filed notice beyond six months, “the trial court erred by failing to dismiss” his PWDCRA claim. Reversed and remanded for entry of summary disposition for defendant.
Use variance to keep additional animals; Substantial, competent, & material evidence; Reasonable accommodation under the Fair Housing Act (FHA); “Handicap” discrimination prohibition; 42 USC §§ 3604(f)(1) & (3)(b); Hollis v Chestnut Bend Homeowners Ass’n (6th Cir); Whether the circuit court should have ordered further proceedings before the Zoning Board of Appeals (ZBA); MCR 7.122(G)(1)(b); MCL 125.3606(2)
The court held that the circuit court did not err in ruling that the decision by respondent-City’s ZBA to deny petitioner’s use “variance was not based on substantial, competent, and material evidence.” But it found that the circuit court erred in reversing the ZBA’s decision and not ordering further proceedings before the ZBA. Petitioner sought the variance to keep animals on his property in excess of the City’s zoning ordinance limit. In addition to a dog, two cats, a macaw, and a parrot, he had 11 chickens. He sought the variance as a reasonable accommodation under the FHA related to his Huntington’s disease. He provided “three letters from two different doctors regarding his disability and in support of his requested accommodation.” Instead of discussing the merits of his request, “the ZBA focused on the lack of signature on one of the letters and the failure to include a medical license number on the others.” The court found that “the manner in which the ZBA summarily dismissed petitioner’s medical evidence suggests that its findings were not based on the evidence before it and that the ZBA did not properly consider” the request. The disregarded medical evidence “was important when determining whether [he] was entitled to an accommodation under the FHA. The letters” showed that he “had a disability and his medical providers had prescribed emotional support animals to alleviate physical, mental, and emotional problems he experienced because of” it. The court concluded the ZBA’s decision did not reflect that it “weighed the benefits and burdens of the proposed accommodation because the ZBA highlighted only minor technical deficiencies for disregarding the” medical providers’ opinions. The “circuit court did not misapprehend or grossly misapply the substantial evidence test.” But the ZBA’s lack of findings “on whether petitioner’s requested accommodation is reasonable and necessary warrants further proceedings before the ZBA and not simply reversal of” its decision. Affirmed in part, reversed in part, and remanded “with directions to the circuit court to order further proceedings before the ZBA.”
Retaliation for an employee’s exercise of her rights under the Worker’s Disability Compensation Act (WDCA); MCL 418.301(13); Claim under the Persons with Disabilities Civil Rights Act (PWDCRA); Peden v City of Detroit
Holding that the trial court did not err in dismissing plaintiff-former employee’s WDCA retaliation and PWDCRA claims, the court affirmed. She was terminated from her position as a security officer for defendant. As to her PWDCRA claim, the court concluded that, regardless whether a statement in a doctor’s “report was inadmissible hearsay, it was error for the trial court to recite that statement as fact because there was at least a question of fact whether defendant offered plaintiff an accommodation in which ‘she was permitted to sit for four hours and then stand for four hours.’ Plaintiff testified that, despite her requests, she was not given any breaks or chances to limit her standing while working for defendant[.]” But she was not entitled to appellate relief because the report statement was immaterial to the trial court’s ruling. It reasoned that her “failure-to-accommodate claim had to be dismissed because plaintiff could not prove the second element[.]” It found that defendant showed that her “disability directly related to her ability to perform an essential function required of an individual working as either a security guard or an ID checker for defendant, and that [she] failed to proffer evidence creating a genuine issue of material fact as to this issue.” It also concluded that, to the extent her failure-to-accommodate claim was based on defendant’s not providing her with a chair, she “failed to provide any evidence tending to establish that she asked defendant for a chair in a written request, which the [trial] court opined was required to sustain” the claim. “Neither basis for dismissal relied on” the report statement. As to her WDCA retaliation claim, the trial court dismissed it based on (1) the lack of “a causal connection between a protected activity and any alleged retaliation” and (2) its conclusion that no reasonable trier of fact could find her “firing had a retaliatory motive given that defendant had repeatedly extended plaintiff’s medical leave, and the evidence established that [she] had still not been medically cleared to return to work.” She did not address either of these reasons and thus, was not entitled to relief.
Other acts evidence; MCL 768.27a; MRE 403; People v Watkins; People v Solloway; People v Hoskins; Vouching; Lay opinion testimony; MRE 701; People v Heft; Ineffective assistance of counsel; Upward departure sentence; Fourth-offense habitual offender; MCL 769.12(1)(a); MCR 6.425(D)(1)(e); Proportionality
The court held that the trial court did not abuse its discretion by admitting defendant’s prior CSC convictions and that counsel was not ineffective, but resentencing was required because the trial court failed to explain the upward departure sentence. Defendant was convicted of CSC offenses involving a minor neighbor. The trial court admitted evidence that he was previously convicted of CSC offenses involving his stepdaughters. On appeal, the court first held that the other acts evidence was properly admitted under MCL 768.27a and MRE 403. It reasoned that although the prior acts occurred nearly 30 years earlier, “‘the temporal divide between their occurrences, standing alone, does not preclude the evidence’s admission,’” and this case was “more like Solloway than Hoskins” because the victims were similar in age, defendant had close access to them, the assaults occurred over multiple incidents, and the acts were similar. The court next held that Officer L did not impermissibly vouch for the victim by explaining that CPS referred the matter to police when it found enough information to warrant investigation. The testimony “was not an opinion about the credibility of any witness” but instead described “the steps of investigating child sexual abuse cases,” and any objection would have been futile. Finally, the court held that resentencing was required because defendant’s 33-year minimum sentence was an upward departure from the 25-year habitual-offender minimum, and the trial court “did not mention it was imposing an upward departure” or explain why the sentence was “‘proportionate to the seriousness of the circumstances surrounding the offense and the offender.’” Affirmed in part, but remanded for resentencing.
Ineffective assistance of counsel; Request for a Ginther hearing; Failure to call a specific witness; Failure to investigate; Failure to impeach a witness with a prior inconsistent statement; MRE 613(b); Handling of the prosecution’s ballistics evidence; Matters of trial strategy
Concluding that defendant was entitled to an evidentiary hearing on three of his ineffective assistance of counsel claims, the court remanded to the trial court for a Ginther hearing on those claims. The case arose from a fatal shooting. Defendant’s defense was that he was innocent and another man (M) was the shooter. The shooting occurred at a concert and party. Among the attendees was M’s cousin, T. In seeking a Ginther hearing, defendant first asserted that his trial counsel was ineffective for failing to call an individual (D) who claimed to have seen M shoot the victim as a witness. It was undisputed that defendant’s trial counsel knew of D and initially intended to call her as a witness, but he did not do so, and the reason was “not apparent from the record.” The court found that more factual development was needed to determine what D told defendant’s trial counsel. Defendant also asserted that his trial counsel was ineffective for failing to impeach T with a prior inconsistent statement. The record showed that his “trial counsel believed (at least at one point) that he could impeach [T] with a prior inconsistent statement, but he ultimately failed to try. Defendant can explore the reason for this decision at a Ginther hearing[,]” where he will presumably offer evidence that T “could have been successfully impeached with a prior inconsistent statement, if such evidence exists.” Given that it was remanding for a Ginther hearing on these claims, the court also determined that defendant was entitled to develop the factual basis for his claim based on the alleged failure to adequately investigate M. But it rejected his claim that his trial counsel was ineffective in his handling of the prosecution’s ballistics evidence. The court retained jurisdiction.
Ineffective assistance of counsel; Prior stabbing testimony; Other-acts evidence; MRE 404(b); Trial strategy; Witness credibility; Identification evidence
The court held that defendant was not denied effective assistance of counsel when trial counsel elicited testimony that he had previously stabbed the shooting victim. Defendant was convicted after the victim identified him as the person who shot him through a gas-station door. Counsel challenged the victim’s credibility by eliciting testimony about a prior altercation between the two. On appeal, the court held that counsel’s questioning was trial strategy because he used the prior-stabbing testimony in closing to attack the victim’s credibility, emphasizing that the victim had not reported the alleged stabbing and that the account made little sense. The court recognized the strategy was risky, but concluded it was not objectively unreasonable in a difficult identification case where undermining the victim was essential. The court also held that defendant could not show prejudice because the remaining identification evidence was strong: the shooter drove a purple Ford Flex, police later found him driving a similar vehicle, he wore an orange hoodie like the shooter’s, and the victim identified him in a photo lineup. Affirmed.
Identification evidence; Suggestive procedures; Independent basis; People v Posey; People v Gray; Sentencing; Proportionality; Presumptive proportionality of a within-guidelines sentence; Scoring of OV 4; MCL 777.34(1)(a); Right to resentencing
The court held that while the identification procedure was unnecessarily suggestive, there was an independent basis for the victim’s (L) identification of defendant-Rivers. It rejected his proportionality challenge to his within-guidelines sentence, but concluded that he was entitled to resentencing due to an error in scoring OV 4. Thus, it affirmed his convictions of carjacking, first-degree home invasion, robbery, unlawful imprisonment, and unlawfully driving away a motor vehicle, but vacated his sentence and remanded for resentencing. The court noted that L was shown two photos, but both depicted Rivers. It could “see no meaningful distinction between the presentation of a single” photo as in Gray and the presentation of multiple photos “depicting the same individual.” The court also found that L’s subsequent identification of Rivers at the preliminary exam was unnecessarily suggestive. L had already seen him at the adjourned preliminary exam “earlier that month, during which he entered the courtroom in handcuffs and with police escorts.” But the court held that the trial court did not clearly err in admitting L’s identification because it had an independent basis. L “was able to observe Rivers for ‘a very long time.’ Neither of them had face coverings.” While she “recalled that it was ‘kind of dim’ in her apartment that day” it was around 11:00 am and she “testified that, because some daylight was coming in through the blinds, she did not have any difficulty seeing Rivers.” In addition, her description of him to a responding police officer was “accurate, if somewhat generic.” As to his sentencing arguments, his “consecutive sentence of 35 years—30 years for carjacking and 5 years for first-degree home invasion—is within the guidelines’ recommended range.” Given the circumstances of the offender and the offense, the court found that his age, by itself, did “not overcome the presumption of proportionality, especially given his lengthy criminal record and the seriousness of his crimes both past and present.” But it held that the trial court erred in scoring 10 points for OV 4, and removing those points reduced his OV level.
Armed robbery; Sufficiency of the evidence; Identity; Failure to preserve evidence; Due process; Brady v Maryland; Potentially useful evidence; Bad faith; Arizona v Youngblood; Lay opinion testimony; MRE 701; Invading the province of the jury; Ineffective assistance of counsel; Right to present a defense; Referring to jurors by numbers
The court held that sufficient circumstantial evidence established defendant’s identity as the person who committed the armed robbery, and that his remaining claims did not warrant relief. Defendant was convicted of robbing a Speedway gas station, and the central issue at trial was identity. On appeal, the court held that although no direct evidence identified him, the circumstantial evidence was “overwhelming.” Video showed the robber leaving and returning toward the Red Roof Inn where defendant was staying, wearing clothing matching items later found in his room or discarded nearby, and he appeared on hotel footage shortly after the robbery wearing similar clothing while dropping dollar bills. The court also held that there was no due-process violation from failure to preserve additional hotel footage because the government never possessed it, and police had no affirmative duty to seek and preserve merely potentially exculpatory evidence. It rejected his challenge to a detective’s lay testimony comparing clothing and boots because the testimony was either not identification testimony or was not plainly improper under MRE 701. The court further held that counsel was not ineffective for failing to object, the trial court did not deny defendant the right to present a defense during closing argument, and referring to jurors by numbers did not create an anonymous jury or show prejudice. Affirmed.
Sixth Amendment right of confrontation; Admission of preliminary exam testimony; Unavailable witness; MRE 804(a)(5); People v Bean; Due diligence; Motive in cross-examining at the preliminary exam; Ineffective assistance of counsel; Failure to communicate a plea offer; Remand for a Ginther hearing; Law Enforcement Information Network (LEIN)
The court held that defendant’s right of confrontation was not violated by the admission of the victim’s preliminary exam testimony. But it remanded to the trial court for a Ginther hearing as to his claim that defense counsel was ineffective for failing to communicate a plea offer. Defendant was convicted of mayhem, discharge of a firearm in a building, felony-firearm, FIP, felonious assault, and domestic violence arising from an incident between him and his mother (B). He challenged the admission of B’s preliminary exam testimony at trial. The record showed several people tried to locate B “to serve a subpoena in person, via phone and email, and even through other family members, on multiple occasions.” An investigator with the prosecutor’s office testified that he ran B’s “name through the LEIN and Secretary of State network to confirm her contact information and called the phone number listed on the police report” as well as emailed her, “but she never answered.” He went to her home three times “to try to serve her, but no one answered the door.” The court agreed with the trial court that the testimony showed due diligence was exercised in trying to obtain B as a trial witness. Further, admitting her preliminary exam testimony did not violate defendant’s right of confrontation “because defense counsel had the same motive when cross-examining” B at the preliminary exam as he would have had at trial. As to the ineffective assistance claim, the record reflected a factual dispute between defendant and defense counsel. It was unclear whether any plea offer was communicated to defendant before trial. Defense counsel’s explanation of what happened contradicted defendant’s but was “equally confusing.” The court noted that it seemed defendant “would have accepted a plea offer but it is not clear if one was communicated.”
Whistleblowers’ Protection Act (WPA); Protected activity; “About to report”; MCL 15.362; MCL 15.363(4); Shallal v Catholic Soc Servs of Wayne Cnty; Clear & convincing evidence; Causal connection; Mitigation of damages; Reinstatement offer; Rasheed v Chrysler Corp; Michigan Occupational Safety & Health Administration (MIOSHA)
The court held that a fact question existed as to whether plaintiff was “about to” report workplace safety violations to MIOSHA, so he was not entitled to summary disposition on WPA liability, but defendant also was not entitled to summary disposition. Plaintiff, a tool-room lead, repeatedly raised machine-safety concerns internally, stated during a 1/24 meeting that he had “no problem calling [MI]OSHA,” and was fired hours later because his comments were deemed “a threat about some safety concerns and what you may or may not do.” On appeal, the court held that reasonable minds could find protected activity because plaintiff said he had MIOSHA’s number “ready,” later averred he was “no longer willing to accept the unsafe environment,” and his managers understood him to be threatening to report. But the court also held that reasonable minds could find he had not yet formed the required intent because he did not expressly say he would call MIOSHA and explained that he was “willing to work with you guys” but had no issue calling MIOSHA “if it’s not taken seriously.” Thus, the “about to report” issue was for the jury. The court also affirmed the trial court’s causal-connection ruling because defendant failed to challenge it, and a “failure to brief the merits of an issue constitutes abandonment.” Finally, it held that damages mitigation remained a factual issue because whether plaintiff reasonably rejected the reinstatement offer or pursued another career was a “‘fact-laden inquiry,’” and the offer may have been conditioned on dismissal of the case and a release. Affirmed in part, reversed in part, and remanded.
The No-Fault Act (NFA); First-party no-fault priority dispute; Whether an insured made an effective election to opt out of personal protection insurance (PIP) medical coverage; MCL 500.3107d; Love v Rudolph; Northland Radiology, Inc v Allstate Fire & Cas Ins Co; Michigan Automobile Insurance Placement Facility (MAIPF)
The court held that defendants-Farm Bureau’s insured (nonparty-A) did not make “an effective election to opt out of PIP coverage in her no-fault policy because her failure to list her resident relatives and provide proof of their qualifying health coverage rendered her election ineffective.” Thus, it concluded the trial court erred in granting Farm Bureau summary disposition and denying defendant-MAIPF summary disposition in this first-party no-fault priority dispute. Based on the ineffective election, Farm Bureau’s policy provided unlimited PIP coverage to A’s injured resident relative (IL) and plaintiff was “entitled to recovery as her provider.” Reading the relevant 2019 NFA amendments together, the court held in Love that they “allow a named insured to ‘decline PIP coverage for allowable expenses if the name[d] insured is “a qualified person,” meaning the named insured has health coverage under parts A and B of Medicare, and if household relatives also have the described required other coverage.’” And in Northland, it recently addressed the issue underlying this appeal, “whether an insured had made an effective opt-out election.” It concluded here that “some of the requirements to make an effective opt-out election were met. However, [A] failed to establish that her resident relatives had qualified health coverage or were covered under another auto policy with PIP medical coverage or provide proof of such qualified health coverage.” Given that “the statute requires that the named insured and his or her resident relatives have qualified health coverage to opt out of allowable expenses in a no-fault policy,” A’s election was ineffective due to “the lack of qualified coverage of her resident relatives. Her failure to establish all the requirements to opt out rendered her election ineffective.” The court in Northland also found “that ‘an ineffective opt-out is applicable to the applicant or named insured, their spouse, resident relatives, and any other person who may have a right to claim PIP benefits under the policy[.]’” Reversed and remanded.
Termination of parental rights; § (c)(i) (continuing conditions); Domestic violence; Substance abuse; Mental health; Housing; Parenting skills; Best interests; Foster care; Permanency
The court held that § (c)(i) supported termination of both parents’ rights and that termination was in the child’s (SMR) best interests. The case began after respondent-mother brought the ill child to respondent-father’s tent on a 37-degree night, the parents argued, and police found SMR outside in snow without shoes. On appeal, the court held that § (c)(i) supported termination as to the mother because, although she obtained housing, the remaining adjudication conditions continued: substance abuse, domestic violence, mental health, and parenting concerns. The court emphasized her “49 non-compliant tests,” minimal progress in substance-abuse services, guarded participation in therapy, continued contact with the father despite no-contact orders, and 8/25 domestic-violence arrest, showing she had “‘made little, if any, progress’” and “lack[ed] insight.” The court next held that § (c)(i) supported termination as to the father because he had not rectified housing, alcohol abuse, domestic violence, or mental-health barriers. He had 39 noncompliant tests, appeared in court after drinking, was jailed for alcohol issues, ignored recommendations for treatment, violated no-contact orders, and lacked “‘stable housing by any stretch of the imagination.’” The court rejected his claim that more time was warranted because “‘[t]he mere possibility’” of a “radical change” did not establish a reasonable likelihood of rectification within a reasonable time. The court also held that termination was in SMR’s best interests. As to both parents, SMR entered care after being “left outside in the middle of winter” during a domestic-violence altercation, was thriving in foster care, and needed permanence rather than remaining “in the limbo” created by the parents’ lack of progress. Affirmed.