Douglas C. Bernstein
Conor B. Dugan
Sherrie L. Farrell
Fishman Stewart PLLC
Nicholas A. Huguelet
Andrew J. Moore
Warner Norcross & Judd
Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
The Elliott-Larsen Civil Rights Act (MCL 37.2101 et seq.); Prima facie case of race discrimination; McDonnell Douglas Corp. v. Green; MCL 37.2202(1)(a); Hazle v. Ford Motor Co.; The Persons With Disabilities Civil Rights Act (MCL 37.1101 et seq.); Prima facie case of disability discrimination; MCL 37.1202(1)(a); Peden v. City of Detroit; “Disability”; MCL 37.1103(d); Cancer as a disability; Causation; Sniecinski v. Blue Cross & Blue Shield of MI; Pretext; Major v. Newberry; Inconsistent explanations; Howard v. BP Oil Co., Inc. (11th Cir.)
While the court held that plaintiff established his prima facie case for both race and disability discrimination, it concluded that he was unable to show that the reasons defendant-Village offered for not hiring him were pretext for discrimination. Defendant decided not to hire plaintiff, “a Hispanic male with cancer,” for its police chief position and instead hired M, “a Caucasian, nondisabled male[.]” As to race discrimination, the court found the case similar to Hazle. The “unique circumstances surrounding the decision to hire Chief [M] over” him could lead to an inference of discrimination. Defendant set out its hiring process and then “when faced with the fact that plaintiff was the only remaining candidate, departed from the process and hired Chief [M], who was not a member of a protected class and had not applied for the position. If otherwise unexplained, this decision, viewed in the light most favorable to plaintiff, could lead to an inference that” it was based on impermissible factors. As to disability discrimination, defendant and the trial court stated that “he was not able to establish the causal relationship between his disability and the adverse employment decision.” But, pursuant to Sniecinski, given that a prima facie “case under the McDonnell Douglas test creates a presumption of unlawful discrimination, causation is presumed.” Nonetheless, the court disagreed with plaintiff that “defendant’s inconsistent reasons” for its decision created a material fact question as to pretext. Plaintiff relied on Howard, and this case seemed similar on its face. But there was a substantial difference – defendant’s manager “had a legitimate reason for not wanting to hire plaintiff, which was not the case in Howard. Plaintiff had a disciplinary record” and evidence suggested he was informed before his interview that he would not be hired due to this, which indicated “that defendant’s reasons were consistent.” It was also clear that his “interview left several members of the council dissatisfied. Finally,” Hazle required him “to prove that defendant’s reasons were not just pretext, but pretext for discrimination,” which he was not able to do. The court affirmed summary disposition for defendant.
Ineffective assistance of counsel; Failure to object to the admission of the video & transcript of defendant’s investigative subpoena interview; Hearsay; MRE 801(c); MRE 802; Unavailable declarant; MRE 804(b)(1); Principle that a witness who invokes his or her Fifth Amendment right not to testify is considered unavailable; People v. Meredith; People v. Farquharso
Holding that defendant’s claim of ineffective assistance of counsel based on counsel’s failure to object to the admission of the video and transcript of his investigative subpoena interview was meritless, the court affirmed. He correctly asserted that the video and transcript of his interview was not admissible pursuant to MRE 804(b)(1). He invoked his Fifth Amendment right not to testify. Thus, he was “unavailable” for purposes of MRE 804. And he testified pursuant to an investigative subpoena. The court has held that “testimony given at an investigative subpoena hearing qualifies as testimony given as a witness at another hearing of the same or a different proceeding . . . under MRE 804(b)(1).” But only if it has been "determined that ‘the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination,’ would the testimony be admissible pursuant to MRE 804(b)(1).” The court made no such determination; thus, that rule was inapplicable. The testimony in this case was offered against defendant, and he did not have “an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” The only one who questioned him “during the investigative subpoena interview was the prosecution, and the prosecution was the party admitting the interview into evidence at trial against defendant.” Moreover, he “had not yet been charged with any crime in connection to the events at issue. As a result, the investigative subpoena testimony would not be admissible under MRE 804(b)(1).” However, his “testimony was still otherwise admissible because his statements were not hearsay. MRE 801(d)(2)(A) provides that statements offered against an opposing party that are the opposing party’s own statements are, by definition, not hearsay.” Here, the prosecution admitted the video and transcript "into evidence at trial against defendant to establish that he perjured himself.” Thus, the statements he “made in the video are by definition not hearsay and were thus otherwise admissible.” Moreover, his “statements were admissible because the prosecution was not admitting the statements to prove the truth of the matter asserted.” The prosecution admitted his statements “in which he claimed that he did not shoot or touch a gun at the time of shooting not to prove the truth of what defendant asserted, but, rather, to prove that defendant had lied under oath.” Thus, they did not qualify as hearsay. Because his “investigative subpoena interview was admissible, any objection from defense counsel would have been futile or meritless.”
Habeas corpus; Timeliness under 28 USC § 2244(d)(1)(D); “Diligence”; Johnson v. United States; DiCenzi v. Rose; Shorter v. Richard (Unpub. 6th Cir.); “Necessary factual predicate”; Smith v. Meko (Unpub. 6th Cir.)
The court held that the district court erred by dismissing petitioner-Sexton’s habeas petition as untimely where he filed it within one year of the Ohio appeals court’s order denying his application for leave to file a delayed appeal. Sexton filed a direct appeal from his murder and robbery conviction almost 20 years after he was confined, based on an irregularity in Ohio law that was not known to him at the time of his conviction. The Ohio Court of Appeals rejected his appeal as untimely, and the Ohio Supreme Court declined jurisdiction. Three months later, he filed for habeas relief, claiming that the Ohio Court of Appeals denied him due process and equal protection by refusing to let him file a late direct appeal. The district court ruled that his habeas petition was untimely under § 2244(d)(1), which contains a one-year limitation period for state prisoners to file an application in federal court for habeas relief. In this case, the date calculation began to run on the “‘date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.’” Sexton argued that the relevant date was that on which the state appeals court denied his application for leave to file a delayed appeal, which would make his habeas petition timely. The state argued that he failed to “diligently pursue” his rights up to that point so his petition was untimely. The court held that the state appeals court’s denial order was “a necessary factual predicate” for his due process and equal protection claim; thus, because he filed his petition within one year of the order’s entry, his claim was timely under § 2244(d)(1)(D). Accordingly, it remanded the case to the district court for consideration on the merits.
Modification of parenting time; A de novo hearing; MCL 552.507(5) & (6); The best-interests threshold; Vodvarka v. Grasmeyer; Shade v. Wright; Waiver; Hodge v. Parks; Whether the proposed modification affected the children’s established custodial environment (ECE); Lieberman v. Orr; Marik v. Marik; Pierron v. Pierron; Children’s best interests; MCL 722.23(c) & (j); Fletcher v. Fletcher
The court held that defendant-mother was not entitled to relief on her claim the trial court did not comply with the requirements for a de novo hearing, that the trial court did not err in applying the preponderance of the evidence standard to the best-interest factors, and that its findings as to factors (c) and (j) were not against the great weight of the evidence. Thus, it affirmed the order granting plaintiff-father’s request to modify parenting time. The court first found that defendant failed to show the trial court did not comply with MCL 552.507(6). The record revealed “that the trial court reviewed the referee’s recommendations and the hearing transcripts; the trial court stated its disagreement with the referee’s findings and explained in detail why it disagreed with those findings by referring to evidence presented at the referee hearing. The trial court ultimately made an informed decision based on the arguments from both parties and all the necessary and relevant evidence pertaining to” factors (c) and (j). The court added that, even if the trial court erred, defendant failed to adequately explain “why the alleged error was outcome-determinative.” While she relied primarily on Lieberman in contending that the parenting time modification changed the children’s ECE, she did not show “a ‘substantial’ modification of parenting time because the modification reduced defendant’s parenting time by only approximately 18%,” compared to 40% in Lieberman. Further, unlike in Lieberman, the change here “did not modify the children’s schools.” Thus, the court concluded that the parenting time change here did not affect the children’s ECE and as a result, the trial court did not err in applying the preponderance of the evidence standard as to the best-interest factors. Finally, it determined that the evidence did not clearly preponderate against the trial court’s findings that factors (c) and (j) favored plaintiff.
State Bar of Michigan
306 Townsend St
Lansing, MI 48933-2012