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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Excessive force & unlawful home entry claims under 42 USC § 1983; Qualified immunity; Warrantless entry into a home; “Exigent circumstances”; Clearly established right to be free from a warrantless entry into a home without an exception to the warrant requirement; Excessive force claim; Williams v Mauer; Jurisdiction over an interlocutory appeal
The court affirmed the district court’s denial of qualified immunity to defendant-Deputy Due on plaintiff-Hoover’s warrantless-entry and excessive-force claims under § 1983, concluding a reasonable juror could find that there were no exigent circumstances to support a warrantless entry into Hoover’s home. Due responded to a 911 dispatch call from a woman who claimed that Hoover had threatened her with a gun during a domestic dispute. Due went to Hoover’s home where there were three women present. One woman told Due that Hoover had “gone crazy.” Due saw Hoover, who was standing at the garage door, and asked him to raise his hands. Although Hoover did so, Due approached him with his gun drawn, and when Hoover refused to be handcuffed, Due pushed him into the “house, slammed him against a wall, and punched him in the face.” One of the women then told Due that Hoover had never used a gun to threaten anyone. The incident was recorded on one woman’s phone. Hoover sued under § 1983, alleging that Due unlawfully entered his home and subjected him to excessive force. Due moved for summary judgment based on qualified immunity. The district court denied it on both claims. On appeal, the court first held that it had jurisdiction over Due’s appeal, which raised legal questions such as whether his warrantless entry into Hoover’s home was supported by “exigent circumstances,” whether Due’s actions amounted to excessive force, and whether they violated clearly established law. It then considered the first requirement of a qualified immunity defense—whether Hoover’s constitutional rights were violated. It held that a 911 domestic abuse call “vaguely reporting an altercation, is not enough to justify an officer’s warrantless entry into a home.” Something more was needed. The court noted that none of the people at the scene appeared injured, and there were no signs that someone in the house was injured. Also, Hoover was cooperative and raised his hands when told to do so. Further, the presence of firearms alone does not constitute an exigent circumstance. The court found that the cases Due relied on confirmed “the lack of exigency here.” And it noted that the “right to be free from a warrantless entry into a home without an exception to the warrant requirement is clearly established.” As to the excessive force claim, the court did not have to decide “whether any of Due’s force was used to effectuate his unlawful entry into Hoover’s” home because “Due made no effort to develop this argument” and thus, forfeited it on appeal.
Due process challenge to the denial of prosecutorial disqualification; People v Joly; Confidential relationship with a defense-retained expert; MCR 2.302(B)(3); MCL 767.5a(2); Estate of Teutsch v Van De Ven; Remedy & prejudice under “outrageousness” standard; Disqualification standards; People v Tesen; Work-product in criminal proceedings; People v Holtzman
Holding that the prosecution’s brief contacts with a physician previously consulted by the defense did not violate due process under the “outrageousness” test and caused no actual and substantial prejudice, the court affirmed the trial court’s denial of defendant’s motion to disqualify the prosecution. Defendant was charged with first-degree murder and first-degree child abuse arising from the death of his girlfriend’s three-year-old child. Former and current defense counsel consulted child-abuse pediatrician Dr. D, then elected not to call him and retained a different expert. The prosecution subsequently contacted Dr. D to review the case and rebut the defense expert, but later removed him from the witness list. On appeal, the court rejected defendant's argument that the prosecutor’s office must be disqualified because they violated his due-process rights by infringing on confidential and privileged information discussed by the defense and a retained expert concerning professional impressions and case strategy. It found the facts “considered together [did] not demonstrate the government’s objective awareness” of a confidential defense-expert relationship. Second, “if there was an intrusion . . . it is difficult to see how it could be characterized as a deliberate one.” And there was “no evidence that an intrusion, deliberate or not, actually occurred.” Third, there was no prejudice because “the record reflects that the prosecution learned no confidential information from” Dr. D and there was little risk he would “divulge confidences going forward” since “the prosecution prudently terminated their relationship with him.” The court also rejected the alternative request for a remand hearing, noting the trial judge invited a detailed proffer that was not supplied and that “in the absence of evidence to the contrary, we will accept a licensed attorney’s assertion to a court.” Absent some “evidence to refute the prosecutor’s assertions . . . there is no reason to disbelieve” them.
Motion to reopen removal proceedings; Whether petitioner’s in absentia removal order should be rescinded because he received a deficient Notice to Appear (NTA); 8 USC § 1229a(b)(5); Campos-Chaves v Garland; Whether petitioner could make a prima facie case for cancellation of removal; § 1229a(c)(7); The court’s jurisdiction; Board of Immigration Appeals (BIA)
On review from the BIA, the court denied in part petitioner-Guzman-Torralva’s petition for review, concluding he still did not meet the requirements for reopening his removal proceedings. And because it lacked jurisdiction over one of his claims, it dismissed his petition in part. Guzman-Torralva, a Mexican citizen who entered this country illegally, was ordered removed from the country in absentia. This was his second attempt to reopen proceedings. The order was entered after he failed to appear, himself or through counsel, at an immigration hearing. His first motion to reopen proceedings was based on ineffective assistance of counsel and was denied. In his second motion, he claimed that he did not receive a proper NTA and as a result, was entitled to have the proceedings reopened and the removal order rescinded. In the alternative, he argued that his proceedings should be reopened so that he could apply for cancellation of removal based on intervening case law. He also asked the BIA to reopen his proceedings sua sponte. The BIA denied his motion. The court found that “Guzman-Torralva did not receive proper notice under” ¶ (1) of § 1229(a) “because his NTA did not specify the ‘time and place at which the proceedings will be held.’” However, he received proper notice under ¶ “(2), which provides that ‘in the case of any change or postponement,’ the alien shall be given a ‘written notice’ that must specify ‘the new time or place of the proceedings’ and the consequences for failing to attend.” The court noted that a proper ¶ “(2) notice, like the one Guzman-Torralva received, supersedes a deficient NTA.” The court rejected his reliance on intervening case law, holding that the cases he cited were not directly on point and that all “the ‘key details’ of Campos-Chaves’s consolidated cases” existed here. The court also rejected his argument that the proceedings should be reopened so that he could seek cancellation of removal where he “failed to show prima facie eligibility for cancellation of removal.” Finally, it found that it lacked jurisdiction to review his “final contention: that sua sponte reopening is warranted here.”
Case evaluation sanctions under amended court rules MCR 2.403 & MCR 1.102; Webster v Osguthorpe; Retroactivity; Reitmeyer v Schultz Equip & Parts Co, Inc; RAD Constr, Inc v Davis; Authority to apply a prior version of a court rule
Holding that Webster applied retroactively, the court vacated the denial of case evaluation sanctions and remanded for the trial court to decide whether to apply the former or amended MCR 2.403 using MCR 1.102 and the Reitmeyer factors. Plaintiff fell in defendant’s store and sued for negligence and premises liability. After case evaluation in 7/21, in which plaintiff accepted and defendant rejected, the case proceeded to trial, where plaintiff obtained a verdict exceeding the evaluation. Plaintiff sought sanctions under the former MCR 2.403(O), but the trial court denied them, concluding it lacked authority to consider the old rule. On appeal, the court explained that our Supreme Court has since overruled RAD in Webster, holding that trial courts “did have the authority to consider whether to apply the old or new version of MCR 2.403 under MCR 1.102,” and should decide that question under Reitmeyer. Addressing retroactivity, the court emphasized that “Webster did not announce a new rule, and its purpose was solely to correct the error in RAD and return to the status quo under Reitmeyer,” that defendant’s reliance on RAD was limited because the rejection of case evaluation occurred long before RAD was decided, and that retroactivity is fair because “the trial court always had the authority to apply the old rule if it determined it was appropriate to do so under MCR 1.102.” It concluded that “all four factors favor retroactive application” here.
Governmental immunity; Proprietary function exception; MCL 691.1413; Primary purpose; Distinguishing Dextrom v Wexford Cnty
Concluding that “there was no question of fact that the proprietary function exception to governmental immunity did not apply[,]" the court reversed and remanded for the trial court to enter an order granting summary disposition to defendant-City. Plaintiff alleged, “in relevant part, premises-liability and negligence claims against the City.” Plaintiff pled “in avoidance of governmental immunity under the proprietary function exemption, arguing the City operated its beaches for a profit and was therefore not entitled to immunity in this case. Plaintiff highlighted the fact that the City comingled the money it earned from the beach (the ‘beach funds’) in a general account and presented an expert witness who testified that several unidentified transfers in the general account had no basis and were evidence of the City’s intent to profit from its beaches.” The court held that the evidence was “sufficient to establish that the beaches were not operated for the primary purpose of generating a profit.” It noted that in denying the City’s summary disposition motion, “the trial court found that the affidavit and testimony of plaintiff’s expert forensic accountant sufficed to create a question of fact regarding the primary purpose of operating the City’s beaches. Plaintiff’s expert questioned several transfers and fees detailed in the City’s financial records, claiming that they were subjective in nature or that it was unclear what the funds were used for. On the basis of these transfers, as well as other fees, advertising expenditures, and the lack of expenses associated with beach safety, plaintiff’s expert concluded that the City’s primary purpose for operating its beaches was for profit.” The expert, when asked about his conclusions, “admitted he did not have enough information to definitively determine that the beach funds were used for nonbeach purposes. [He] was simply unsure whether the fees and transfers were related to the beach operations because he was unable to review any documentation explaining their purpose. Furthermore, the City’s finance director and tax assessor explained the purpose of many of the questioned transfers, all of which were related to the operation of the beaches. But plaintiff’s expert disregarded the finance director’s testimony because he could not ‘verify’ her claims. Most importantly, plaintiff presented no evidence—aside from the expert’s speculative opinion—demonstrating that beach funds were actually included in the questioned transfers or that the funds were actually used for nonbeach purposes. This” was unlike Dextrom, “where there was concrete evidence that a landfill’s profits were used to fund nonlandfill-related projects. Because ‘mere conjecture or speculation is insufficient[]’ to create a genuine issue of material fact, . . . and there was no evidence showing that beach funds were actually used to fund unrelated activities, expenses, or projects, the trial court erred by denying the” City summary disposition.
Whether a negligence claim was barred by the Worker’s Disability Compensation Act’s (WDCA) exclusive remedy provision (MCL 418.131(1)); Presumption under MCL 418.301(3); Harris v Vernier; Simkins v General Motors Corp; Distinguishing MacDonald v Michigan Bell Tel Co
The court held that the WDCA’s exclusive remedy provision barred “plaintiff’s negligence and owner-liability claims” and thus, the trial court erred in denying defendant-Kloss’s summary disposition motion under MCR 2.116(C)(4). They worked at the same hospital. After finishing a shift, plaintiff left “and began walking to her car in the hospital’s parking lot.” She turned back because she forgot something. As she “was walking across a crosswalk, defendant made a left-hand turn and struck her with his car. Plaintiff received worker’s compensation payments until she returned to her job” and she filed this suit. The court agreed with defendant that the trial court erred in denying him summary disposition because the WDCA’s exclusive remedy provision barred the negligence claim. Plaintiff asserted it did not apply because the accident “occurred in a roadway, not in the hospital’s parking lot.” She further contended it “did not occur within a reasonable time after the parties’ shifts ended.” The court disagreed, noting that under MCL 418.301(3), an “‘employee going to or from his or her work, while on the premises where the employee’s work is to be performed, and within a reasonable time before and after his or her working hours, is presumed to be in the course of his or her employment.’” In addition, there was “no evidence to suggest that the hospital controlled the individual parking lots, but not the roadways connecting them. And even if we were to assume that the hospital did not control the roadway where the accident occurred, ‘an employee need not strictly be on the employer’s “premises” in order to be presumed to be in the course of his employment[.]’” While plaintiff relied on MacDonald, the court noted that unlike “MacDonald, plaintiff did not leave the hospital premises before the collision, nor did she present any evidence demonstrating that walking back to the hospital was a ‘personal, non-work related activit[y] . . . .’” While the accident “occurred 35 to 40 minutes after the parties’ shifts ended, [she] fails to explain how an additional 5 to 10 minutes necessarily means that the accident did not occur within a reasonable time after her shift.” As the evidence showed “the collision occurred in the course of [her] employment, the exclusive remedy provision” applied. Reversed and remanded for entry of summary disposition for defendant.
Surplus tax foreclosure proceeds; MCL 211.78t; Rafaeli, LLC v Oakland Cnry; Retroactivity; Schafer v Kent Cnty; In re Kent Cnty Treasurer for Foreclosure
Holding that a Rafaeli-based surplus-proceeds claim must be pursued exclusively through MCL 211.78t, which applies retroactively, and that plaintiffs did not comply with that statute, the court affirmed. Plaintiffs owned two parcels that were foreclosed upon and sold for unpaid taxes, leaving a surplus. The trial court granted summary disposition for defendants, noting that plaintiffs’ “only avenue for recovery” was the post-Rafaeli procedure in MCL 211.78t, which they did not use. On appeal, the court rejected plaintiffs’ argument that MCL 211.78t did not apply because their suit predated the statute, quoting Schafer: “Rafaeli has full retroactive effect” and “MCL 211.78t, which establishes a procedure for processing claims made under Rafaeli, applies retroactively to claims arising prior to its enactment.” It further relied on MCL 211.78t(11) and the court’s characterization that the statute is the “sole mechanism” to recover surplus proceeds. The court also rejected plaintiffs’ effort to proceed outside the statute, emphasizing that “there is no compensable takings claim when statutory procedures exist for property owners to recover surplus proceeds and a property owner’s failure to follow those procedures results in a forfeiture of surplus proceeds.” The statute also requires that “the claimant must file a motion with the circuit court in the same proceeding in which a judgment of foreclosure was effective,” which this action was not, rendering remand futile.
Termination under §§ 19b(c)(i), (g), & (j); Housing
Concluding that the trial court clearly erred in finding statutory grounds for terminating respondent-mother’s parental rights to her child (KMB) under §§ (c)(i), (g), or (j), the court vacated and remanded. As to § (c)(i), the initial dispositional order was issued in 2021 and the termination proceedings took place in 2024. The trial court originally assumed jurisdiction over the mother “because of domestic violence, substance use, and improper supervision.” While it ordered her “to obtain and maintain suitable housing, housing was not a basis for the trial court taking initial jurisdiction over [her]. Throughout the case, [she] participated in services, including parenting classes and therapy, as well as most of her visitations with KMB, including unsupervised visitations.” As to any domestic abuse against the “mother, ‘such incidents alone are not proper grounds for termination.’” And there was “not clear-and-convincing evidence on this record that there was ongoing violence that warranted termination[.]” As to substance abuse, when “the trial court made its statutory-grounds findings, [mother] had only tested positive for THC, a now-legal substance under Michigan law.” Although she “had missed some of her random-drug screenings” due to scheduling conflicts with her job, a foster care worker “testified that she did not have concerns that [mother] was using other substances or that the marijuana use was impacting her parenting. [Her] positive screen for cocaine after the statutory grounds determination is not particularly relevant when reviewing whether that determination itself was supported by sufficient evidence.” The trial court did not articulate any ground or analysis for terminating her parental rights under § (g), “and for this reason alone, [it] committed clear error with respect to” § (g). As to § (j), the trial court’s findings were “not particularly clear on the reasonable likelihood of harm to KMB. [It] repeatedly identified housing as a barrier for reunification, and the record confirms that housing was a—if not the—trial court’s primary justification for termination.” But there was “little in the record explaining precisely why the motel room was inadequate. The DHHS found the living space to be generally safe and appropriate for the parents’ unsupervised visits with KMB.” Yet, as to living there, it “deemed the space too small for KMB. But other than a bare assertion, the DHHS did not actually demonstrate in the proceedings below or on appeal that the size of the motel room alone justified removal. [Mother] provided unrebutted testimony that she had sufficient space for a toddler bed, she could cook meals, and she had toys and clothing for KMB.” On this record, it was “unclear why the extended-stay motel room was not appropriate, even if the room size might not have been ideal.”
Termination under §§ 19b(3)(b)(i), (b)(ii), (j), & (k)(ii); The doctrine of anticipatory neglect; Children’s best interests; In re Olive/Metts; Jurisdiction; MCL 712A.2(b)(1) & (2); Credibility
Noting that the “single abuse of one, unrelated child can, as a matter of law, support terminating parental rights under” §§ (b)(i) and (k)(ii), the court held that §§ (b)(i), (j), and (k)(ii) supported terminating respondent-father’s rights. It also rejected respondent-mother’s challenge to the trial court’s decision to assert jurisdiction and held that §§ (b)(ii) and (j) supported termination of her parental rights. Further, it concluded the trial court did not clearly err in finding that termination of both respondents’ rights was in the children’s best interests. The mother was the biological mother of all five children at issue here – NP, DP, MP, DBC, and LBC. The father was the biological father of DBC and LBC. While the DHHS did not cite § (b)(i) in its petition as a basis for seeking to terminate his “rights, the trial court’s reliance on this ground does not require reversal when there were other grounds supported by [its] ruling and only one ground is required” for termination. Further, he had notice the DHHS was relying on § (b) “and that the facts in support of terminating his parental rights involved his sexual abuse of NP, not his failure to protect NP from sexual abuse.” While he also asserted the trial court erred in relying on the anticipatory neglect doctrine, “the trial court did not base its findings solely on” this doctrine. The court found that “NP’s testimony established that a sibling of [the] father’s children suffered sexual abuse caused by [the] father. Given the abuse inflicted on NP, it was also not error for the trial court to find that DBC and LBC faced a reasonable likelihood that they also would suffer injury or abuse if placed with [him], even if they might not have been subject to the same type of sexual abuse NP suffered.” As to the mother’s jurisdictional challenge, the court held that the DHHS “met its burden by showing by a preponderance of the evidence that the children were neglected because [she] failed to protect NP from sexual abuse after it was apparent that NP was being abused. The mental well-being of the children also was at a substantial risk of harm from [the] mother’s failure to protect them.” And for the same reasons, the DHHS established that her “home, by reason of neglect, was an unfit place for the children to live in when she again failed to take reasonable steps to protect the children from abuse by [the] father, supporting jurisdiction under MCL 712A.2(b)(2).” Affirmed.
Termination under § 19b(3)(f)(i); Ability to provide financial support; In re LHH
Agreeing with respondent-mother that the trial court erred by finding she failed to provide financial support for her child, LCP, under § f)(i), “given that she was incarcerated during the relevant time period and had no significant assets or income[,]” the court reversed the trial court’s order terminating her parental rights, and remanded. Concerning the first alternative in § (f)(i), “the question is whether the respondent-parent ‘had the ability to pay regular and substantial support but had neglected to do so for two or more years.’” In other words, while § (f)(i) “expressly refers to ‘having the ability to support or assist in supporting the minor,’ when that statutory provision is read as a whole, the quoted language contemplates having the ability to regularly and substantially support or assist in supporting the minor.” Further, as to “the second alternative, the respondent parent must substantially fail to comply with the support order for, at a minimum, two years before the petition is filed.” It was “undisputed that the second alternative cannot be satisfied. A $0 monthly support order was entered for LCP in [6/23], and the petitions requesting termination of parental rights were filed in [11/23]. As such, a support order was not even in existence for the requisite two-year period and, in any event, respondent logically complied with it by providing no financial support when it was in effect.” Thus, the question became “whether the trial court clearly erred by finding that the first alternative was satisfied.” Under the circumstances here, the court disagreed “with the trial court that respondent had the necessary ability to provide financial support for LCP for the two years preceding the filing of the petitions.” Therefore, because she “did not have the ability to provide substantial support for LCP in the two years preceding the filing of the petitions, [§ (f)(i)] was not satisfied, and [§ (f)] cannot provide a basis for terminating respondent’s parental rights at this time.” The court’s “conclusion in this regard is consistent with In re LHH.” Because she “only had the ability to provide a nominal, non-substantial amount of financial support for LCP from her prison income, and because she apparently had no other assets or financial resources, she lacked the ability to provide ‘substantial support’ for the purposes of” § (f)(i).