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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Right to arbitrate; Federal Arbitration Act (the Act); Whether defendants “extinguished” their right to arbitrate by litigating the case for a year; 9 USC § 3; Right to compel arbitration where there is no court case; § 4; Whether defendants were in default under § 3 when they sought arbitration by litigating the case for a substantial time; Whether defendants’ request to compel arbitration was inconsistent with arbitration where they litigated first & then moved to arbitrate only after the court rejected their claim to dismiss the case on the merits
[This appeal was from the WD-MI.] The court held that defendant-Metropolitan Hospital and the individual defendants lost their right to arbitrate under the Act because their request to arbitrate came after a year in litigation, and thus, they were in default when requesting arbitration. Kloosterman, a physician assistant, sued her employer, Metropolitan Hospital under § 1983, Title VII, and Michigan law, claiming she was terminated because her religious faith prevented her from treating LGBTQ+ patients, using the preferred pronouns, and participating in gender-affirming care. Defendants repeatedly requested that the claims be dismissed on the merits, and the district court dismissed several claims. After litigation had continued for a year, defendants moved for arbitration, which was part of her employment agreement. The court granted the motion and ruled that defendants’ delay in raising the issue did not affect the decision. Kloosterman argued that defendants lost their right to request arbitration after they had litigated the case for a year. Section 3 of the Act allows a party already in court to request a stay and invoke arbitration, while it permits a party to petition the court to compel arbitration where there is no pending federal case. Section 3 only applies where “‘the applicant for the stay is not in default in proceeding with such arbitration.’” The court explained the term “default” and held that it applied in this case. “If a defendant litigates in court for a long enough time before seeking arbitration, one would naturally say that the defendant has not lived up to the ‘promise’ to arbitrate[,]” and “‘default[ed] in proceeding with such arbitration ….’” It referred to defendants’ improper way of presenting the motion to compel to the court, in a summary judgment motion instead of a motion under § 3 or § 4. It then noted that precedent showed that a defendant’s actions are “‘entirely inconsistent’ with arbitration if the defendant first seeks ‘an immediate and total victory in court through a motion to dismiss under Rule 12(b)(6) and then moves to arbitrate only after the court rejects this initial attempt to end the dispute.’”
As-applied Second Amendment challenge to 18 USC § 922(o) (prohibiting the transfer or possession of machineguns); New York State Pistol & Rifle Ass’n, Inc v Bruen; United States v Bridges; Whether Hamblen v United States remains good law; District of Columbia v Heller
The court held that § 922(o), which prohibits the transfer or possession of machineguns, does not violate the Second Amendment as applied to defendant-Brown under Bruen and Sixth Circuit precedent. Brown challenged his conviction for possessing a machinegun, arguing that it violated the Second Amendment as applied to him. The court explained that shortly after the Supreme Court’s decision in Heller, the court in Hamblen rejected a Second Amendment challenge to § 922(o). Brown contended that Hamblen was no longer good law in light of Bruen. But the Sixth Circuit recently rejected that argument in Bridges. Hamblen relied on Heller’s statement that “‘the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.’” The court found that Brown misread “both Bruen and Heller. The Supreme Court in Bruen ‘did not call Heller into question; to the contrary, Bruen was an unqualified endorsement of Heller.’” Rather, it “overturned only those post-Heller decisions that ‘had misapplied Heller by erroneously adding a means-end-scrutiny step to Heller’s text-and-history standard.’ . . . Any ‘pre-Bruen case[] that did not wrongfully apply means-end scrutiny remain[s] binding.’ . . . Hamblen did not apply means-end scrutiny.” Thus, Brown’s § 922(o) challenge failed “as a matter of circuit precedent.” Affirmed.
Motion to quash bindover on a charge of misconduct in office (MCL 750.505); Common law definition; People v Perkins; Whether the reasonableness of defendant’s actions was a question of law; Probable cause; People v Anderson; Consideration of departmental policies & a police report; Relevance; Michigan State Police (MSP)
Holding that the circuit court did not err in denying defendant’s motion to quash his bindover on a charge of misconduct in office under MCL 750.505, the court affirmed. The case arose from an altercation between defendant, a former MSP trooper, and another man (W). The court noted that the issues were “whether the prosecution established probable cause that defendant committed misfeasance or malfeasance with a corrupt intent.” The prosecution framed his “wrongdoing as a violation of the Fourth Amendment based on an unreasonable seizure and the use of excessive force.” He first contended “that the reasonableness of his actions was a question of law and that the circuit court erred by determining it was a question of fact.” But he conceded “that at common law, the reasonableness of an individual’s conduct is a question of fact for the jury. . . . Further, misconduct in office is a common-law offense, so it follows that the reasonableness of [his] actions was a question of fact.” He nonetheless argued, relying heavily on federal cases, “that the reasonableness of a police officer’s conduct under the Fourth Amendment is a question of law.” But the court found his cited authorities distinguishable. And it noted that his position would necessarily require the district “court to weigh the evidence, which it was not permitted to do at the preliminary examination stage.” He also asserted “the district court erred by finding probable cause to bind him over on the charge of misconduct in office.” The court found that his “argument largely pertains to matters of weight, which the district court was not tasked with handling.” In essence, he focused “on the testimony supporting his position and puts forward his own interpretation of the video footage. However, the video footage speaks for itself, and there was ample evidence that justified the bindover.” The court concluded that the “prosecution presented sufficient evidence that defendant’s seizure of [W] was unreasonable, and therefore a wrongful act constituting malfeasance or a lawful act done in a wrongful manner constituting misfeasance.” In addition, it “presented evidence that defendant’s use of force was excessive, which again, could constitute malfeasance or misfeasance.” Thus, the court held that the “district court properly found probable cause to bind defendant over, and the circuit court properly denied” his motion to quash. It also rejected his evidentiary arguments.
Prosecution’s use of the word “victim” during voir dire; People v Wisniewski; Victim as defined in MCL 750.520a(s); Other acts evidence under MCL 768.27a & MRE 404(b); MRE 403; People v Watkins; Constitutionality of MCL 768.27a; People v Muniz; Ineffective assistance of counsel
Noting that defendant’s arguments as to the prosecution’s use of the word “victim” were controlled by Wisniewski, the court found that they did not warrant appellate relief. It also held that the trial court did not err in admitting other acts evidence about defendant’s sexual assaults of another minor. Finally, it rejected his ineffective assistance of counsel claims. Thus, it affirmed his convictions of CSC I and CSC II. “When making statements or asking jurors questions during voir dire, the prosecutor in this case repeatedly used the word ‘victim’ or ‘victims’ to refer to” the victim in this case (FB) “or complainants in CSC cases generally.” Defendant asserted that this constituted misconduct and violated his “constitutional rights to due process and a fair trial.” The court noted that the “law today is the same as it was when Wisniewski was decided—under the CSC section of the penal code, ‘victim’ is still defined as the person claiming that he or she was sexually assaulted MCL 750.520a(s). So, as in Wisniewski, ‘because the prosecution in this case used the language to refer to the complainants that has been codified by our Legislature, the trial court did not plainly err by allowing the prosecution to use that language.’” In addition, defendant “was likewise not deprived of a fair trial because, as in Wisniewski, ‘a reasonable juror obviously would understand that the prosecution’s position is that the complainant in a CSC trial is a “victim.”’” And defendant’s trial “counsel was not ineffective for failing to object to the prosecution’s use of the word ‘victim’ because failing to advance a futile objection does not constitute ineffective assistance.” The court also held that the trial court did not abuse its discretion in admitting the other acts evidence. The assaults of FB and the other minor (LH) “were undoubtedly similar—in each instance, both were young relatives of defendant’s romantic partners who lived with [him]; defendant assaulted both LH and FB when they were between about 7 and 12 years old; both women testified that [he] would assault them repeatedly, at every opportunity he could get them alone in his home; and both women testified that [he] would fondle their breasts and reach into their shirt and pants when they were alone with [him] as he drove his pickup truck.”
Armed Career Criminal Act (ACCA) mandatory minimum sentence; 18 USC § 924(e)(1); The different-occasions requirement; Erlinger v United States; Whether the failure to submit the different-occasions question to a jury was harmless; United States v Campbell; Wooden v United States; United States v Kimbrough; United States v Cogdill
The court affirmed defendant-Durham’s mandatory minimum sentence under the ACCA, holding that the district court’s Erlinger error in failing to submit the issue whether his prior felonies “occurred on different occasions” to the jury was harmless. But it vacated defendant-Barnes’s sentence where it was a “closer” question, concluding similarities to Kimbrough and Cogdill precluded it “from finding that the Erlinger error was harmless.” Consistent with Sixth Circuit precedent at the time of sentencing, the district court applied the ACCA’s 15-year mandatory minimum sentences to both defendants after determining that they had three prior qualifying felonies. However, after the Supreme Court decided Erlinger, “a jury, not a judge, must determine whether crimes occurred on different occasions.” The court had to determine whether the error in each case was harmless under Campbell. Both defendants conceded that they had three prior felonies, but neither would concede that they occurred on different occasions. As to Durham, he had 10 burglary offenses, which the court divided “into four buckets: 1) four burglaries in [10/09]; 2) the burglary of two different homes on [10/19/10]; 3) a burglary on [12/15/10]; and 4) four burglaries between [1/4], and [1/28/11].” The question became “whether at least two of his 2010 and 2011 offenses occurred on different occasions.” The court concluded “it is beyond reasonable doubt that a jury would have found that at least two of the 2010 and 2011 offenses occurred on different occasions.” It found that his offenses were “more like those at issue in Campbell,” and that this case was distinguishable from Wooden, Kimbrough, and Cogdill. Turning to Barnes, the district court ruled that he was subject to § 924(e)(1) where he committed four first-degree robbery offenses on four different dates (three in 8/08 and one in 6/09). But the temporal and physical proximity of the 8/08 robberies left the court with doubts whether a jury would find that at least two of these robberies occurred on different occasions—the 8/08 offenses “are separated by less than a month, and the first two offenses occurred at the same location.” However, the 8/6 and 8/31 “offenses were separated by several weeks and more than ten miles.” The court noted the similarities between Barnes’s case and Kimbrough, where it vacated an ACCA sentence. It remanded Barnes’s case for further proceedings.
Change of custody & parenting time; Consideration of a child’s established custodial environment; Threshold requirement necessary to revisit a prior custody determination; MCL 722.27(1)(c); Proper cause or a change of circumstances; Lieberman v Orr; Vodvarka v Grasmeyer; Statutory best-interest factors (MCL 722.23); Factors (c) & (j)
The court held that the trial court’s finding that defendant-mother established the threshold requirement necessary to revisit the “prior custody determination was not against the great weight of the evidence.” Further, the trial court’s findings on the statutory best-interest factors were not against the great weight of the evidence. Thus, it affirmed the trial court’s order after a de novo review of the referee’s recommendation and order changing custody and parenting time. Plaintiff-father’s home “became uninhabitable for several months due to a house fire. This caused [him] to move his family—which, including [the parties’ child, L], consisted of seven individuals—to a hotel, then into an RV. [L] thus went from having his own bedroom to sharing a hotel room (and later, an RV) with four children and two adults. Evidence was presented that these cramped living conditions and the lack of privacy affected [L’s] mental health, his ability to sleep, and his capacity to complete school work. This was clearly more than a normal life change, and the evidence showed that it had an effect on” L. Thus, the court concluded “the trial court’s finding that the house fire constituted a change of circumstances sufficient to revisit its prior custody order was not against the great weight of the evidence.” In addition, the trial court “found that plaintiff’s refusal to communicate the house fire and the effects that it had on [L’s] living situation to defendant also met the threshold showing necessary to revisit the [trial] court’s prior custody determination. A life event like a fire forcing a family out of their home for an extended period will obviously have an effect on a child’s wellbeing. Yet, rather than communicating with defendant about the fire and working with her to do what was best for [L], plaintiff failed to tell defendant about the fire and his family’s housing situation.” The court found that this “showed an unwillingness to include defendant in” L’s life. Thus, it determined that “the trial court’s finding that defendant had proven the threshold requirement to revisit the parties’ custody arrangement on the basis of plaintiff’s failure to communicate the house fire to [her] was not against the great weight of the evidence.” It also concluded that the trial court’s findings that best-interest factors (c) and (j) favored defendant were not against the great weight of the evidence.
Order for involuntary mental-health treatment; Hearsay; “Person requiring treatment” under MCL 330.1401; Mental Health Code (MHC)
The court held that as to respondent’s hearsay claim, he did not identify “any error in the admission of evidence at his hearing, let alone plain error that affected his substantial rights.” Also, it was “not persuaded that the trial clearly erred when it found by clear and convincing evidence that respondent was ‘a person requiring treatment’ under MCL 330.1401(1)(a) and (c).” Thus, the court affirmed “the probate court’s order requiring respondent to involuntarily undergo mental-health treatment pursuant to the” MHC. He contended “the probate court reversibly erred by considering two statements that constituted inadmissible hearsay[.]” As to the statement that he “had a ‘plan’ to kill his father, it was not obviously inadmissible. True, [it] was hearsay—[psychiatrist D’s] clinical certificate stated that respondent had ‘expressed a calculated plan to kill father’ according to a ‘report’ that [D] had reviewed, and [D] testified at respondent’s hearing that respondent had ‘a calculated plan to kill his father’ ‘[a]ccording to documentation from Network180.’” However, D “testified that he relied on these documents when diagnosing respondent, so the court was permitted to consider the statement pursuant to MRE 1101(b)(10).” Also, as to the statement in psychiatrist M’s ‘“clinical certificate that respondent did not want treatment because he did not ‘want it to dull his desire to kill his dad,’ respondent” was correct that this “was double hearsay—[M] did not testify, and [M’s] certificate states that she was told about respondent’s statement by an unnamed ‘clinician.”’ But the court noted D “testified that he relied on this hearsay data to form his opinion—he said that his diagnosis of respondent was based in part on his review of ‘documentation from Network180’ (where [M] examined respondent) stating that respondent refused treatment ‘because he did not want the treatment to get rid of his homicidal thoughts towards his father.’ The probate court later specifically asked [D] whether he had reviewed the statement in [M’s] clinical certificate that respondent takes issue with, and [D] said that he had, that he asked respondent about it while examining him, and that respondent denied making it.” Thus, while both M’s “clinical certificate and the statement therein were hearsay data, [D’s] testimony clearly established that this hearsay data formed part of the basis for his opinion. The probate court was thus permitted to consider that evidence under MRE 1101(b)(10).” Finally, as to the “person requiring treatment” finding, the evidence established that he “had repeated and ongoing thoughts of murdering his father and grandmother; the thoughts had gone as far as planning the murder of his father; respondent recognized, to some extent, that his thoughts were dangerous and placed others at risk; but [he] did not want treatment to help alleviate” them because he felt that they “were justified.”
Policy rescission; Interpretation of a policy contract; Fraudulent misrepresentation; Titan Ins Co v Hyten; “Unlicensed” & “not licensed”; Distinguishing Farmers Ins Exch v Anderson & Ahmed v Tokio Marine Am Ins Co; Whether the insurer was entitled to rescission; Distinguishing Webb v Progressive Marathon Ins Co & Lash v Allstate Ins Co
The court affirmed the trial court’s amended order granting plaintiffs-insureds’ summary disposition motion on their breach of contract claim and denying defendant-insurer’s (MemberSelect) “cross-motion for summary disposition in which it had argued that it was entitled to rescind the policy.” The case arose out of a motor vehicle accident that occurred when plaintiff-Desiree Durga was driving a vehicle insured by MemberSelect. Plaintiffs claimed “that defendant breached their automobile insurance contract when it rescinded their policy based upon an allegation that [Desiree] made a fraudulent misrepresentation in the application process.” MemberSelect sought rescission of the policy ab initio. It contended that advising it that plaintiff-Justin Durga “was ‘not licensed,’ ‘unlicensed,’ that he has ‘0’ years licensed, or that he did not have a license, were all false, material representations.” The court disagreed. It did “not find that any of” the dictionary’ definitions it reviewed “foreclose a person whose license has been revoked from being considered ‘unlicensed’ or ‘not licensed.’” It noted that “any perceived ambiguity in language is construed against the drafter in favor of coverage.” In addition, “referring to a person whose license has been revoked as ‘unlicensed’ or ‘not licensed’ is consistent with Michigan law[,]” Also, defendant contended that Desiree “represented that her husband had ‘0’ years licensed in her [6/12] application in light of his license having been revoked in 2007.” The court found “that this does not constitute a false representation for purposes of establishing that prima facie element of a claim for fraud in the application and rescission.” It further found that defendant’s claim, “that responding ‘0’ is the functional equivalent of indicating one has never been licensed to be without merit. Responding with a number of years based upon having been licensed during some past time period, while likewise indicating that they are not licensed due to revocation, would appear be factually conflicting and inconsistent.” Finally, as to rescission, “both Webb and Lash involved people procuring insurance by making a clear material misrepresentation to the insurance company, thereby entitling those respective insurance carriers to rescind the subject policies of insurance.” The court held that “not only has defendant not provided clear and convincing evidence of fraud in this case, [it] has provided no evidence of fraud, meaning it is not entitled to rescission. Thus, neither Webb nor Lash” supported its argument.
Competing adoption petitions; Challenges to denials of consent to adopt (§ 45 motions); MCL 710.45; The Michigan Children’s Institute’s (MCI) superintendent’s authority to consent to the adoption of any child committed to the MCI as a state ward; MCL 400.209; Consent under MCL 710.43(1)(b); Whether a decision to withhold consent was arbitrary & capricious; MCL 710.45(2); In re Keast; Clear & convincing evidence; MCL 710.45(7); The Adoption Code’s 11 best-interest factors; Bethany Christian Services (BCS)
The court held that the trial court did not err by dismissing the denied petitioners’ § 45 motions and dismissing their petitions to adopt. Respondent-MCI granted consent to the child’s maternal grandmother and denied the other petitions. The denied petitioners filed § 45 motions challenging the denials of consent, which the trial court denied. On the most recent remand from the court, following a second § 45 hearing, the trial court again denied the other adoption petitions. In the present appeal, the court rejected the denied petitioners’ argument that the trial court erred by upholding the MCI superintendent’s (M) decisions to withhold consent to the adoptions. M “gave several reasons for denying consent” and for approving the maternal grandmother. “The record reflects that [M’s] decisions to deny consent” to the denied petitioners “were not whimsical or determined by caprice.” In addition, there was no evidence that M considered communications from adoption caseworkers when denying their respective adoption petitions. There was also no evidence that M “heavily relied on” apparent concerns of the trial court. In addition, the trial court found that “MCI and BCS staff truthfully denied holding or expressing any bias against the” denied petitioners, and “that the BCS and MCI communications and documents” they presented lacked appropriate context. Further, M “believed that the child could maintain his relationship with the” denied petitioners while in the maternal grandmother’s care. And the denied petitioners’ claims that M “moved through the child’s case without appropriate consideration, and relied on improper hearsay evidence,” were unsupported by the record. The record also reflected that M “spent a considerable amount of time on the child’s case.” Further, while the denied petitioners claimed M “relied on child-welfare articles that were irrelevant and constituted hearsay when deciding to withhold consent to them, the record reflects that these articles regarded sibling placements and were relevant to” M’s decision-making process. Finally, the “record clearly reflects that [M] considered the Adoption Code’s best-interest factors, additional factors relevant to the child’s case, the results of her own investigation, documents provided by BCS and the parties, and additional resources regarding child welfare before making thoughtful and well-reasoned decisions supported by the documents provided to her.” Affirmed.
Termination under § 19b(3)(c)(i); Reasonable reunification efforts; Child’s best interests; Relative placement
The court affirmed the trial court’s reasonable-efforts finding, but vacated the termination order and remanded because the trial court failed to consider the child’s (ES) placement with a relative when deciding whether termination was in her best interests. Respondent-mother argued that "the DHHS failed to reasonably accommodate [her] cognitive disability.” The court found that the DHHS was aware of her "cognitive disability and took steps to accommodate it.” The record established that it regularly reminded her “of upcoming appointments and parenting times, marked the relevant events on calendars, and provided all explanations in plain language, ensuring that respondent was able to understand. This Court has previously held that similar practices reasonably accommodate a parent with a cognitive disability.” The record also showed “that the DHHS intended to further tailor respondent’s service plan to accommodate her cognitive disability after receiving the results of her psychological evaluation, but its efforts were stymied by respondent’s refusal to complete the evaluation.” The court noted that she “was unable to complete her first psychological evaluation due to internet-connectivity issues; she did not reschedule the appointment, prompting the DHHS to schedule an in-person evaluation on her behalf; and while respondent attended this evaluation, she refused to complete it because she felt disrespected by the psychologist and did not believe that the evaluation was necessary. This encapsulates the root of the problem in this case—the DHHS upheld its duty to offer respondent services that reasonably accommodated her cognitive disability, but respondent failed to uphold her commensurate responsibility to comply with the services offered.” Thus, the trial court “did not err, let alone plainly err, when it found that the DHHS made reasonable efforts.”