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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Sentencing; Ineffective assistance of counsel; People v Sabin (On Second Remand); Trial strategy; People v Dunigan; Effect of defendant’s intellectual disability; Distinguishing Atkins v Virginia; Cruel or unusual punishment; People v Benton; The “nonconstitutional” principle of proportionality; People v Milbourn; Effect of fourth-offense habitual offender status under MCL 769.12; Factors justifying an upward departure; People v Horn; Comparing People v Hansford; Right to a jury trial as to habitual offender status; People v Zinn
The court held that defendant was not denied the effective assistance of counsel at sentencing, and that his two life sentences did not constitute cruel or unusual punishment. Further, the trial court did not abuse its discretion in sentencing him, and he was not entitled to a jury trial or the right to be proven guilty of being a habitual offender beyond a reasonable doubt. He was convicted of CSC IV, resisting a police officer, and CCW for an incident in which he rode up on his bike, grabbed and squeezed the victim’s buttocks as she walked toward her car, and then ran from police before being arrested. He was also convicted of witness intimidation arising out of a prior incident where he held the 12-year-old victim at knifepoint in a bathroom stall, sexually assaulted her, and then threatened her in person and later by mail. At a single sentencing hearing, the trial court sentenced him as a fourth-offense habitual offender to 10 to 15 years for CSC IV, 2 to 15 for resisting a police officer, and life in prison for both CCW and witness intimidation. On appeal, the court rejected his argument that he was denied the effective assistance of counsel at sentencing because defense counsel failed to show he suffered from an intellectual disability, which he claimed would have prohibited the life sentences. It found that counsel’s decision to not present a 1993 social worker’s report “would be a typical example of reasonable trial strategy,” and that it was not “reasonably probable that defendant’s sentence would have been different had the trial court also reviewed” the report. The court also rejected his contention his life sentences were cruel or unusual punishment, noting “Michigan does not have a categorical rule prohibiting a court from sentencing an individual with an intellectual disability to life imprisonment with the possibility of parole.” In addition, because he “was a fourth-offense habitual offender, it was within the trial court’s discretion to sentence” him to life for his CCW and witness intimidation convictions. “Given the seriousness of defendant’s offenses and his extensive criminal history, [his] life sentences with the possibility of parole were not so grossly disproportionate as to constitute cruel or unusual punishment.” The court next rejected his argument that they violated the nonconstitutional principle of proportionality discussed in Milbourn. Neither “the sentencing guidelines nor the Milbourn principle of proportionality apply to habitual offenders.” Finally, he was “‘not entitled to a trial by jury or the right to be proved guilty of being a habitual offender beyond a reasonable doubt.’” Affirmed.
The Public Employee Relations Act (PERA); Unfair labor practice charge; Duty to collectively bargain in good faith; MCL 423.210(2)(d); Subjects prohibited from collective bargaining; MCL 423.215(3)(j); Michigan Employment Relations Commission (MERC)
Finding no error, the court affirmed MERC’s dismissal of the school district’s unfair labor practice charge, allowing respondent-union’s “grievance to go through its natural process.” The PERA “requires public employers and their employees to collectively bargain in good faith. Certain disputes are off the table for bargaining, however, and remain subject to the employer’s discretion.” The school district “accused the union representing its teachers of attempting to force collective bargaining on a prohibited subject.” The court held that MERC’s determination the union’s grievance was “based on extra-duty pay and not teacher placements and assignments is ‘supported by competent, material, and substantial’ record evidence.” It concluded that the “union essentially conceded the district’s discretion to assign enrichment teachers to lunchroom supervision duties but contended that such assignments came with ‘extra duty’ pay under the parties’ contract.” The court held that this “was not a prohibited subject and could be grieved by the union.” Also, it determined that MERC’s finding the union acted in good faith was supported. “The grievance does not improperly implicate a prohibited subject and there is no evidence that the union changed its approach in bad faith. The stipulated facts and exhibits demonstrate that the union and the district communicated between October and December 2019, but ultimately failed to reach an agreement. When the district indicated that it was not willing to compromise further on assignment issues, the union focused on the salary that should be given to the impacted teachers through the existing collective-bargaining agreement. The union did not breach its duty to operate in good faith by filing a salary-related grievance.”
Divorce; Objections to a receiver’s fees & expenses; Charging a professional receiver’s rate; Consideration of whether defendant-ex-husband actually had available funds to provide to appellee-receiver for operation & maintenance of the farm; Consideration of appellee’s failure to try to mitigate his financial burdens by requesting a contribution from plaintiff-ex-wife; Whether appellee had an obligation to seek contribution from plaintiff
The court held that appellee, who was appointed receiver of defendant-ex-husband’s property during a divorce, “had a right to reasonable compensation for his services and expenses.” It concluded that the record clearly showed “defendant failed to cooperate with the receivership or to provide funding for which he was responsible, which justified appellee’s doing physical farm work for which he charged his established rate of compensation. Although appellee’s efforts to mitigate his fees and expenses would also factor into the reasonableness of his charges,” the court found that, given the situation he faced due to the stipulated order prohibiting him “from selling defendant’s property and defendant’s refusal to supply appellee with his requested funds,” the trial court did not abuse its discretion in denying defendant’s objections to the receiver’s fees. The court noted that the “order creating the receivership directed appellee to take possession and control of defendant’s ‘personal property of every kind or nature,’ as well as ‘all livestock of every kind or nature.’ The farm’s chickens plainly fell under this order, as did the pet dog, which, if nothing else, was personal property.” The court concluded that “appellee was tasked with taking reasonable and appropriate action to manage and preserve the receivership property—which plainly encompassed the labor and cost of feeding the receivership property, such as the chickens and dog—and the receiver was to be compensated for that work.” As to the amount of appellee’s fees, under “normal circumstances, charging a receiver’s professional rate—in this case, $200 per hour—for farm labor would likely be excessive, especially considering that, here, appellee was able to hire a farm laborer to feed and water the cattle for $15 per hour. Appellee, however, was not facing normal circumstances.” The record supported the trial court’s findings (1) that despite appellee’s requests, defendant “did not provide funds for labor or supplies to maintain” the farm animals and (2) “that it was necessary for appellee carry out farm work himself in order to maintain defendant’s farm.” Further, $200 per hour “was the rate stipulated to by the parties when appellee was appointed, and the rate was not itself unreasonable.” The court concluded that “given the lack of any operating funds from defendant or sales of receivership property, the trial court did not err in finding that appellee did not violate his fiduciary duties by charging his professional receiver’s rate for assisting with the farm work himself.” Affirmed.
Nuisance per se; Laches; Nykoriak v Napoleon; Prejudice; Lyon Charter Twp v Petty
Holding that the trial court correctly concluded that the doctrine of laches barred plaintiff’s nuisance claim, the court affirmed the grant of summary disposition for defendants-city and boat shop. Plaintiff sent a cease-and-desist letter to the boat shop demanding it cease construction of a waterfront building that would obstruct his view of the bay, and would allegedly result in a diminution in value of his property of approximately half a million dollars. He then sued defendants alleging nuisance per se and seeking injunctive relief and money damages. The trial court granted summary disposition for defendants, primarily on the ground that plaintiff lacked standing while also opining that the doctrines of laches and equitable estoppel barred the claim. On appeal, the court rejected plaintiff’s argument that the trial court erred by finding laches barred his claim, noting the boat shop “suffered prejudice by the expenditure of time and money” constructing the building, and its “expenditure of money and labor to construct the building evidenced its material change in conditions.” In addition, plaintiff’s delay “was unreasonable and unexcused because he could have sought a preliminary injunction.” Plaintiff learned of the construction project “right as it began, but he took no action aimed at halting the construction for approximately eight months. He stood idly by and watched, literally and figuratively, as the construction progressed to the point of near completion of all of the structural work.”
Reasonable reunification efforts; Alleged failure to accommodate a respondent’s disabilities; In re Hicks; A respondent’s responsibility to participate in offered services; In re Atchley; Issue preservation
The court held that the DHHS made reasonable reunification efforts but respondent-mother “failed or refused to engage in services” and did not identify how she would have done better if other services had been offered. Thus, it affirmed the trial court’s order terminating her parental rights. She argued the “DHHS did not make reasonable efforts to reunify her with the children by failing to accommodate her disabilities early in the case, failing to timely obtain a psychological evaluation, and then refusing to follow the recommendations of that evaluation.” Finding that she failed to preserve her issue as to the reasonableness of the DHHS’s efforts to accommodate her disabilities, the court reviewed the issue for plain error affecting her substantial rights. It concluded that she failed to show “she would have fared better had services been offered earlier in the case.” The evidence showed that she “would not engage with services and service providers, and engaged in the same behavior after she received the psychological evaluation. Considering that, there is no indication that receiving the evaluation earlier would have affected the outcome of her case.” As to the timeliness of the evaluation, the court noted the “DHHS sought to obtain a psychological evaluation several times, including by making appointments for respondent-mother, but the record shows she simply refused to engage.” She was given the opportunity early on in the case to benefit from a psychological evaluation, “but she did not attend her evaluation appointments and did not reschedule them. She did not engage in her responsibility to take advantage of this service.” As to the evaluation recommendations for inpatient treatment, there was “no basis from which to conclude that DHHS should have committed respondent-mother to an inpatient treatment program against her will. Doing so was not recommended by her psychological evaluation, which instead stated that [she] needed to engage on her own in order for treatment to succeed.” During her incarceration, she “had stated that she was willing to go, but following her incarceration, she stated that she would not be looking into it, had a lot on her plate, and did not want to do it.”
Termination under § 19b(3)(c)(i); Reasonable reunification efforts; In re Frey; Children’s best interests; In re Payne/Pumphrey/Fortson Minors; Lawyer-guardian ad litem (LGAL)
Holding that termination was proper under § (c)(i), that the DHHS offered appropriate services to assist respondent-mother in reunifying with her children, and that terminating her parental rights was in their best interests, the court affirmed the termination order. Her substance abuse led to the adjudication and “persisted throughout this case, including the time period just before the termination hearing. She never completed substance abuse therapy and she continued using drugs throughout this case. She was suspected of being under the influence during a parenting time visit with the children.” Thus, the court concluded the evidence established that “the conditions leading to adjudication continued, and it was unlikely that respondent-mother would take steps to remediate her substance abuse issues in a reasonable time.” It disagreed with her assertion “that she was not given adequate opportunity to address her barriers to reunification. . . . Over the course of almost 20 months, DHHS offered [her] a number of services to address her substance abuse issues, including substance abuse therapy and drug screening. [She] did not complete substance abuse therapy and she missed almost all required drug screens. Her completed drug screens were sometimes positive for illegal substances.” Thus, the court found that in this case, respondent was offered appropriate services but “failed to benefit from them.” Finally, while she showed “care and concern for the children as evidenced by her consistent attendance at the parenting time visits[,]” they expressed concern that she “was inappropriate toward them and that she was under the influence during some of their interactions with her. The children were in a stable home where they participated in sports and other extra-curricular activities.” The LGAL reported they wished to stay “with their foster parents and their foster parents voiced a desire to adopt them. On balance, the record supports the trial court’s finding that termination was in” their best interests.