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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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42 USC § 1983 action challenging a Michigan law banning the use of drones to hunt or collect downed game (MCL 324.40111c(2) - the Drone Statute); Standing; Whether plaintiffs established “an imminent future injury” to support standing in the pre-enforcement context; First Amendment claim asserting a right to create, disseminate, & receive location information for downed game; Level of scrutiny
[This appeal was from the WD-MI.] In an order on petition for a rehearing en banc, the original panel reviewed the petition and concluded that the issues it raised were fully considered in the original submission and decision (see eJournal # 84121 in the 8/4/25 edition). The petition was then circulated to the full court. No judge requested a vote on the suggestion for rehearing en banc. Thus, the petition was denied.
Probable cause for a bindover on hazing charges; MCL 766.13; Constitutionality of Garret’s Law; MCL 750.411t; “Hazing”; MCL 750.411t(7)(b); Principle that consent is not a defense; MCL 750.411t(6); Causation; People v Wood; Freedom of association challenge; NAACP v Button; Equal protection challenge to athletic-program exception; People v Martinez; Vagueness & overbreadth challenges; People v Rogers; As-applied First Amendment challenge as to expressive conduct; Scope of a law; People v Otto
Noting that this was the first case in which it addressed the statute, the court held that the district court properly bound defendant over on Garret’s Law hazing charges and that the statute is constitutional, facially and as applied. Defendant, a fraternity “pledge master,” was charged in the death of one pledge and injuries to three others. The district court bound him over, and the circuit court denied his constitutional motion. On appeal, the court first affirmed the bindover, finding the district court had probable cause. “Organizing a party at which one knows fraternity pledges will be pressured to drink to excess—which defendant knew, to the extent that he asked that the fraternity ‘wait until I get there before they’re dead’—is ‘an intentional, knowing, or reckless act . . . directed against’ the victims, and there is sufficient record support that defendant ‘knew or should have known’ it would ‘endanger[] the physical health or safety of’ the victims. There is probable cause to support this element.” Further, whether he “personally directed each instance of ‘scrolling’ or not, his leadership role supports a finding that he was responsible for the collective pressure imposed on the victims. Because that pressure ‘result[ed] in’ the injuries suffered, that element too is supported by probable cause.” Turning to the constitutional challenges, the court rejected defendant’s freedom of association claim, noting Garret’s Law targets harmful conduct, not protected group expression. The protection “does not extend to conduct that deliberately or recklessly endangers the physical health or safety of current or prospective members.” His equal protection attack on the statute’s carve-out for “normal and customary” athletic or similar programs also failed as such programs “inherently involve physicality that might otherwise seem hazardous, yet they serve legitimate purposes and are subject to institutional oversight.” The court also rejected his vagueness and overbreadth arguments, noting that “‘a statute need not define an offense with mathematical certainty’” and that terms like “reckless” and “endanger” are routinely applied. Further, his as-applied challenge was meritless because this prosecution targeted conduct rather than speech. “This is not a case of punishing protected speech.” Finally, the court explained that applying Garret’s Law here does not stretch it beyond its purpose. “The conduct charged is precisely the type of behavior Garret’s Law was intended to address[.]” Affirmed.
Treating a claim of appeal as an application for leave to appeal; Mootness
Holding that the court “may, in the interest of judicial economy, exercise its discretion to treat respondent’s claim of appeal as an application for leave to appeal, grant leave, and address the issue presented[,]” and did so here, the court dismissed the appeal as moot. In this delinquency proceeding, respondent claimed “an appeal from a nondispositional order continuing his placement at the Wayne County Detention Center until a level two secure probation placement became available.” Respondent conceded “that the order was not appealable by right and requests leave to appeal that order.” The record reflected that he “was moved out of the detention center and placed at a facility on level two secure probation in” 7/24. Because he had “already been moved out of the detention center, it [was] impossible for this Court to fashion a remedy and thus any issue regarding respondent’s continued placement at the detention facility” was moot.
Ineffective assistance of counsel; Failure to request defense of others instruction; Request for a involuntary manslaughter instruction; Plea negotiations; Lafler v Cooper
Concluding that defendant was not entitled to a new trial on the basis that counsel was ineffective, the court affirmed. He was convicted of first-degree murder, FIP, and felony-firearm. The court held that defendant was “not entitled to a new trial on the basis that counsel was ineffective for failing to request a jury instruction on defense of others and for proceeding to trial on a flawed understanding of homicide law by requesting the involuntary manslaughter instruction.” It concluded that because “the self-defense instructions provided referenced the defense of others, and the defense-of-others instruction would have been nearly identical to that provided for self-defense, . . . the instructions given did not exclude from consideration defendant’s defense-of-others justification for the shooting.” Given that determination, based on “the dearth of evidence contradicting [his] account of the day of the shooting, defense counsel’s argument on self-defense, and the jury’s conviction of defendant for first-degree murder on the basis of the evidence despite the self-defense instruction,” the court held defendant failed to show “that ‘but for counsel’s deficient performance, a different result would have been reasonably probable.’” The same was true for his “assertion that defense counsel was ineffective as a result of her flawed understanding of homicide law—namely, requesting the involuntary manslaughter instruction and addressing involuntary manslaughter in her closing argument.” The prosecution conceded, and the court agreed, “that defense counsel’s request for an involuntary manslaughter instruction and discussion of involuntary manslaughter in her closing argument demonstrated deficient performance.” But defendant “failed to establish that, had defense counsel not incorrectly requested the involuntary manslaughter instruction, and discussed voluntary manslaughter instead, the outcome of the trial would have been different.” Further, the court rejected his “argument that defense counsel was ineffective during plea negotiations, and that the trial court abused its discretion when it denied his request for an evidentiary hearing.”
Denial of motion to reopen removal proceedings; Notice; Pereira v Sessions; Niz-Chavez v Garland; One motion to reopen limit; 8 USC § 1229a(c)(7)(A); Exceptions; 8 CFR § 1003.2(c)(3)(i)–(iv); Whether a Notice to Appear (NTA) that is deficient under Pereira & Niz-Chavez is also per se deficient for the purposes of notice; Whether the immigration court had jurisdiction; § 1003.14(a); Sua sponte reopening; Rais v Holder; Department of Homeland Security (DHS); Immigration judge (IJ); Board of Immigration Appeals (BIA)
The court denied petitioner-Vargas-Rodriguez’s petition for review of the BIA’s denial of her third motion to reopen her removal proceedings, concluding that the NTA she received was not defective under either Pereira or Niz-Chavez, and that the immigration court had jurisdiction over her case. When she did not appear at her removal hearing, the IJ conducted it in absentia and ordered her removal to Honduras. She acknowledged that she had “filed three motions to reopen, all of them past the 90-day time limit.” However, she asserted “the BIA abused its discretion by concluding that her latest motion was time- and number-barred because those bars ‘do not apply when the alien asserts she failed to receive proper notice of the in absentia hearing.’” She contended “the BIA was required to address her arguments in light of the Supreme Court’s decisions in Pereira and Niz-Chavez.” The court noted that it had not yet ruled in a published opinion on whether a petitioner may file multiple motions to reopen based on lack of notice. But it concluded it did not have to answer that question here because even if Vargas-Rodriguez was permitted to file multiple motions to reopen on this basis, any BIA error would be harmless because her claims based on Pereira and Niz-Chavez were meritless. These cases concerned whether the deficiency of an NTA could trigger the stop-time rule in cases involving eligibility for cancellation-of-removal. Vargas-Rodriguez asserted “an NTA that is deficient under Pereira and Niz-Chavez is also per se deficient for the purposes of notice.” The court found it unnecessary to consider this argument because the NTA she received “was not defective under either Supreme Court decision.” Just because the government later changed the date and time of the hearing did not make the NTA defective. The court held that she did not meet her burden of showing that she was not at fault for failing to appear. Relying on § 1003.14(a), Vargas-Rodriguez also argued that the immigration court lacked jurisdiction in her case because the DHS’s failure to timely begin the proceedings, “‘stripped the [8/9/05] NTA of its ability and DHS of its authority to initiate her proceedings.’” However, the court explained that § 1003.14(a) “specifies that jurisdiction vests when DHS files a ‘charging document’ with the immigration court.” In this case, the DHS filed the NTA, which constitutes a charging document. It noted it “has held that even an NTA that is defective under Pereira is sufficient to vest jurisdiction in the immigration court under” § 1003.14(a). Finally, the court rejected her claim the BIA erred in not sua sponte reopening her proceedings.
Wrongful death; Medical malpractice; Whether claims sounded in negligence; Bryant v Oakpointe Villa Nursing Ctr, Inc; Meyers v Rieck; Whether medical malpractice claims were timely; MCL 600.5805(8); Notice of intent (NOI); MCL 600.2912b(1); Hubbard v Stier; Tolling during the COVID-19 pandemic; Administrative Order (AO) No. 2020-3; AO 2020-18; Carter v DTN Mgmt Co; MCL 600.5852 (the wrongful-death saving provision); Estate of Christopher P Eversole; Notice-tolling provision; Waltz v Wyse; Personal representative (PR)
Holding that plaintiff-PR’s claims sounded in medical malpractice, not ordinary negligence, and that they were time-barred, the court affirmed summary disposition for defendants. After she was discharged from the hospital, plaintiff’s decedent was transferred to defendant-The Rivers, where defendant-Dr. Johnson was her attending physician. Her condition declined and she was transferred back to the hospital, where she died on 4/28/19. The court first concluded that the particular factual setting that gave rise to plaintiff’s claims made it clear that they implicated “medical judgment. Indeed, the crux of plaintiff’s claims is that if defendants had provided the decedent with proper care, nutrition, and treatment, she would not have developed additional decubitus ulcers and died of sepsis. These allegations involve questions of medical knowledge and are not issues of ordinary negligence that can be judged by the common knowledge and experience of a jury.” The court determined that the “reasonableness of defendants’ actions can only be evaluated when considering whether providers with the same experience would have acted differently given the decedent’s medical history and physical condition.” It added that the fact that she “ultimately died does not enable a layperson to simply infer the decedent would not have died if she was provided proper, or different, care by defendants.” Plaintiff had to comply with the procedural requirements of a medical malpractice claim, including “timely filing her lawsuit under authority relating to” such claims. She filed the complaint on 1/21/22, which would be outside even the extended limitations period under the wrongful-death saving provision. However, in light of the COVID-19 pandemic, the question became “whether the wrongful-death saving provision is a deadline applicable to the commencement of a civil case as contemplated by AO 2020-3.” The court concluded the “provision creates a deadline to file suit,” and pursuant to Hubbard, “‘AO 2020-3, by its terms, applies to deadlines[.]’” But even with the deadline extension under AO 2020-3 and AO 2020-18, plaintiff had to file suit by 11/11/21. She asserted the “suit was timely filed because she complied with MCL 600.2912b(1) and sent defendants the NOI 182 days before she filed” it. But under Waltz, her “filing of the NOI did not toll MCL 600.5852’s deadline.”
Auto negligence action; Serious impairment threshold under MCL 500.3135(1) & (5); “Objectively manifested impairment”; McCormick v Carrier; “Normal life”; Youth activity limits; Piccione v Gillette
The court held that a jury could find a serious impairment because objective medical proof along with the teen plaintiff’s testimony about curtailed summer activities and ongoing limits while running created a genuine issue on whether her general ability to lead her normal life was affected. The court agreed with the trial court that chest-pain complaints were insufficient standing alone to establish a threshold injury, but noted that the record also contained objective evidence of cervical disc injury and a treating chiropractor’s affidavit causally tying it to the crash. “[T]he MRI results and the chiropractor’s affidavit both support the presence of an objectively manifested injury to” plaintiff’s neck. Applying McCormick, the court reiterated that “the statute merely requires that a person’s general ability to lead his or her life has been affected, not destroyed,” and concluded “the evidence allows for an inference that [plaintiff’s] general ability to lead her normal life was affected, though not completely destroyed.” The court noted her testimony that, as a 14-year-old, the summer after the wreck she “only went to the chiropractor, not out,” and continued to experience shortness of breath and chest discomfort while running, distinguishing between minor, transient complaints and record evidence that a jury could credit as affecting her normal life. Because this created “a factual conflict with the nature and extent of” her injuries, summary disposition was not appropriate. Reversed and remanded.
Violation of a restrictive covenant; Long-term rental of a home; “Business or commercial purposes”; Terrien v Zwit; Eager v Peasley; Enchanted Forest Prop Owners Ass’n v Schilling (Unpub); Aldrich v Sugar Springs Prop Owners Ass’n; John H. Bauckham Trust v Petter (Unpub); “Residential”; Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham; Waiver
The court held that any rental of defendant-subdivision homeowner’s (Gribi) “property, regardless of length or whether it is residential in nature, violates the unambiguous restrictive covenant prohibiting commercial use of the property.” Further, the trial court did not err in concluding that plaintiff-Association had not waived enforcement of the restriction. Thus, the court affirmed summary disposition for plaintiff in this dispute over a nine-month rental of Gribi’s home. The “restrictions state, ‘All lots shall be used and occupied for residential purposes only, and may not be used for business or commercial purposes.’” As they did not define “residential,” the court reviewed the definition given by the Michigan Supreme Court in Bloomfield Estates. It also reviewed the Supreme Court’s definitions of “commercial” and “business” in Terrien, and the court’s own decisions interpreting subdivision restrictive covenants. It noted that while Eager, Aldrich, and Enchanted Forest, among other cases, addressed short-term rentals, in Bauckham Trust, it “concluded that the trial court did not err by enjoining all rental activity, including long-term rentals, on subdivision lots owned by the defendants that were encumbered by deed restrictions prohibiting the use of the lots for commercial purposes.” The court found the reasoning of that decision persuasive and adopted it here. Reading the restrictions here “as a whole, the unambiguous language expresses an intent to restrict use of the lots in the subdivision to nonbusiness and noncommercial residential use.” It noted that Gribi had “not resided at the property since 2022,” and the record showed she had no intent to return. She intended to use the “rental income to offset her monthly assisted-living expenses. Thus, [she] was using her property ‘in connection with or for furtherance of a profit-making enterprise.’” Based on the Terrien definitions and the reasoning in Bauckham Trust, “any rental of Gribi’s property, regardless of length or whether it is residential in nature, violates the unambiguous restrictive covenant prohibiting commercial use of the property.” The court also rejected her alternative argument that “the Association waived the restriction by previously acquiescing to short-term rentals of other” properties. Her “long-term rental constitutes a ‘more serious’ violation of the deed restriction than the prior sporadic, short-term rentals of a few lots in the 37-lot subdivision.”