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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Subject-matter jurisdiction on limited remand following challenges to pandemic orders; MCL 333.2253; Johnson v White; Law-of-the-case & scope of remand barring relitigation of merits; Rott v Rott; Mootness/vacatur of a prior ruling on MCL 333.2253; Authority to award indemnification for contempt losses; MCL 600.1721; In re Bradley Estate; Whether a state agency qualifies as a “person” for indemnification; MCL 8.3l; In re Contempt of McRipley; Recovery of costs & attorney fees tied to contemptuous misconduct; MCL 600.1701(g); In re Contempt of Henry
The court held that the trial court properly refashioned the second contempt sanction to compensate appellee-Department of Agriculture for losses caused by appellant-restaurant owner’s defiance of the suspension of a food license and correctly limited compensation to the already-paid $7,500. Appellee summarily suspended appellant’s restaurant food license during COVID-19, but she kept operating in violation of a TRO and preliminary injunction, leading to two contempt findings, jail, and two $7,500 fines. In a prior appeal, the court affirmed contempt but remanded solely to refashion the second fine to be civil in nature. On remand, the trial court found appellee incurred enforcement costs and directed payment from the second fine. It later clarified that appellee’s compensation could not exceed $7,500. On appeal, the court rejected appellants’ renewed subject-matter-jurisdiction challenges because the remand was limited and the merits of contempt were already resolved. The trial court “did not enter a new contempt order. Rather, it refashioned an existing contempt order” in accordance with the remand instructions. The court emphasized the law-of-the-case and the rule that “‘a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed’” and reiterated that parties must “‘obey court orders regardless of their validity.’” The court further noted that any reliance on an earlier ruling declaring MCL 333.2253 unconstitutional failed because the Supreme Court had since vacated that holding. Turning to indemnification, the court upheld recovery under MCL 600.1721 where the record showed actual losses (including attorney time) caused by the contempt. It explained that the statute “simply mandates that the [trial] court must indemnify a party for the contempt of the other party if that contempt caused actual loss or injury,” that the word “‘person’ includes public bodies,” and that fees are recoverable in contempt. Affirmed.
First Amendment free speech claim under 42 USC § 1983; Free speech rights in schools; Tinker v Des Moines Indep Cmty Sch Dist; The vulgar speech exception to the Tinker standard; Regulation of political speech without vulgar words that a school reasonably understands as having a vulgar message; Mahanoy Area Sch Dist v BL ex rel Levy; Bethel Sch Dist No 403 v Fraser; Prohibited speech that is both political & vulgar
[This appeal was from the WD-MI.] The court held that the district court did not err by granting defendants-school district and administrators summary judgment in this First Amendment free-speech case because “the school reasonably understood the slogan ‘Let’s Go Brandon’ to be vulgar.” The case arose after the school prohibited plaintiffs-school children “from wearing sweatshirts that bore the message “Let’s Go Brandon.” Through their mother, they sued defendants, claiming that they violated the students’ free-speech rights by not allowing them to wear the sweatshirts to school. Defendants offered testimony that the dress code did not “prevent students from wearing clothing that expressed political statements so long as it didn’t violate the dress code.” The court first discussed the Tinker standard under which “the school has the burden of showing that it reasonably believes its regulation of student speech will prevent substantial and material interference with school functions.” It noted there are exceptions to Tinker’s standard. One of those exceptions is that, on “school grounds, a school may generally prohibit (1) indecent, lewd, and vulgar speech[.]” The court found that this case was about that exception and “how a school may regulate political speech without vulgar words that the school nonetheless reasonably understands as having a vulgar message.” Plaintiffs argued that the message “‘Let’s Go Brandon’ is not profane.” But the Supreme Court’s decision in Fraser demonstrated “that a school may regulate speech that conveys an obscene or vulgar message even when the words used are not themselves obscene or vulgar.” As to the question of who decides what is vulgar, the court found that precedent was “clear; Fraser puts a thumb on the scale in favor of the school administrators. And here the uncontroverted origin of the slogan shows a plainly vulgar meaning.” The court then considered whether a “slogan’s political valence affords it greater protection than nonpolitical vulgarity.” It concluded that Fraser answered “this question by holding that vulgarity trumps the political aspect of speech at school.” Thus, the court concluded that requesting students remove clothing with the slogan here “didn’t violate the First and Fourteenth Amendments.” Affirmed.
Discovery; Statutory duty to disclose toxicology results; MCL 257.625a(8); Disclosure of results vs disclosure of data; People v Lounsbery; Brady claim for nondisclosure of lab data; Brady v Maryland; Expert opinion foundation; MRE 703; People v Fackelman; Judicial reassignment procedure & prejudice; MCR 8.111(C)(1); People v McCline
The court held that: (1) the prosecution complied with the statutory disclosure requirement, (2) the record did not establish a Brady violation, (3) any MRE 703 error was harmless because the blood-test result was independently admissible, and (4) although the case reassignment violated MCR 8.111(C)(1), defendant showed no prejudice. He was charged with OWI-third offense after a late night stop revealed slurred speech, the odor of alcohol, refusal to complete additional field tests, and a later blood draw with a 0.15 BAC. The trial court admitted the lab report and the prosecution’s toxicologist, a different judge presided at trial, the jury convicted defendant, and the trial court denied his post-trial motion. On appeal, the court first rejected the statutory-disclosure claim because MCL 257.625a(8) requires only that the prosecution “‘furnish’ the test ‘results’ more than two days before trial,” not the underlying chromatogram data. “The present case cannot be distinguished from Lounsbery. The ‘result’ of the chemical testing referred to the finding that his BAC was 0.15. This result was communicated to defendant more than two days in advance of trial. Therefore, the prosecution complied with MCL 257.625a(8), and defendant is not entitled to reversal on this ground.” Next, the court found no Brady violation where defendant failed to show the withheld data was favorable or material. “Repeated conclusory statements that the evidence was favorable is not sufficient to meet defendant’s burden,” and he neither obtained the data post-trial nor framed a preservation-of-evidence (bad-faith) claim. As to MRE 703, even assuming error in allowing the toxicologist’s opinion without admitting the raw data, the court deemed it harmless because “the lab report containing the results of the test . . . was properly admitted” and, by statute, “the amount of alcohol . . . as shown by chemical analysis . . . is admissible” and “the prosecution shall offer the test results as evidence at trial.” Finally, the court agreed the last-minute reassignment violated MCR 8.111(C)(1), but reversal was unwarranted because “defendant is required to show prejudice,” and the record showed none. Cross-examination of the expert proceeded fully and the successor judge merely adhered to existing rulings. Affirmed.
Sentencing; First Step Act “covered offenses”; § 404(b); The “mandate rule”; Whether the First Step Act authorized the district court to reduce defendants’ sentences on their homicide convictions for which they were convicted & sentenced concurrently with the covered drug-conspiracy offense; Applicability of the “sentencing-package doctrine”
[This appeal was from the ED-MI.] The court held for the first time in a published opinion that the First Step Act’s sentence-reduction authority encompasses cases falling under the sentencing-package doctrine – “a district court can reduce a sentence for a non-covered offense when it is ‘packaged’ with a covered offense for sentencing purposes.” Defendants, members of a drug-distribution gang, were sentenced on drug conspiracy charges and several homicides. The district court sentenced each to life in prison but later changed the sentence to a term of years under the First Step Act. The government appealed, arguing that the Act did not authorize reductions for the homicide convictions, which were not covered under § 404 and were not included in sentencing packages. It also argued that the mandate rule, which provides that a “lower court cannot reconsider any issue that the higher appeals court ‘expressly or impliedly decided’ in an earlier appeal[,]” precluded the district court from reducing defendant-Gordon’s homicide sentence on remand. But the court rejected this argument where there was nothing in its prior remand order that “expressly limited the district court to considering relief only as to the conspiracy conviction.” It then turned to the question of whether the district court had the authority under the Act to reduce the sentences for defendants’ homicide convictions where they were convicted and sentenced concurrently with a “covered offense” (the drug-conspiracy). It held that § “404(b)’s sentence-reduction authority encompasses cases falling under the sentencing-package doctrine.” Noting that it has taken this position in several unpublished cases, the court formally adopted it in this case. But “the First Step Act allows resentencing” only on non-covered offenses “that are part of a sentencing package[.]” And it expressed doubt whether the doctrine applied here. The district court failed to explain how each defendant’s sentences fell within the doctrine. Because its “limited explanation is partially due to the government’s failure to timely address the sentencing-package issue,” the court remanded for “the district court to fully address whether the sentencing-package doctrine truly applies here.” Vacated and remanded.
PIP benefits; Jurisdiction to decide this appeal; Fraud in the inducement
Concluding that “the trial court erroneously dismissed plaintiffs’ claims on the basis of fraud in the inducement of the insurance contract,” the court reversed and remanded. D, who was involved in a motor-vehicle accident, treated with plaintiff-Anesthesia Services and intervening plaintiffs-Michigan Ambulatory Surgical Center and Phase One Rehab, LLC (collectively “plaintiffs”). They filed this case seeking PIP benefits from D’s insurer, defendant-Allstate. “The trial court initially denied Allstate’s motion for summary disposition, but granted reconsideration and dismissed plaintiffs’ claims under MCR 2.116(C)(10).” As to Allstate’s claim that the court lacked jurisdiction to decide this appeal, the court held that because “plaintiffs timely filed their claim of appeal, and the [11/22/23] order was a final order appealable by right, this Court has jurisdiction to decide this appeal.” Next, it found that “the trial court’s order granting reconsideration and granting Allstate’s motion for summary disposition was erroneous.” It concluded that nothing in the record indicated that D “made fraudulent statements during the application process to induce Allstate to enter into the insurance contract. Moreover, Allstate did not argue as such in its motion for summary disposition.”
Grant of a special land use permit for construction of an industrial-scale solar panel facility; Whether zoning ordinance requirements were met; Competent, material, & substantial evidence; Impartial decision-maker; Effect of a township supervisor’s participation in the application & review process where he had a direct pecuniary interest he allegedly failed to disclose; “Aggrieved” parties; The court’s jurisdiction; MCR 7.203(A)
The court vacated the circuit court’s order affirming the decision of appellee-Macon Township Board of Trustees to grant a special land use permit (SLUP) to intervening appellee-Mustang Mile Solar Energy for the construction of an industrial-scale solar panel facility in the township, and remanded. Initially, the court held that the trial court “did not err by determining that appellants are aggrieved parties permitted to appeal to the circuit court as of right the” Township Board’s decision granting the permit. It found that “appellants participated in the proceedings before the Township Board. They claimed a legally protected interest or protected property right likely to be affected by the [SLUP], and they have alleged facts supporting their claims that the alleged damage from the [SLUP] will affect their properties differently or more significantly in degree than the effect on others in the community.” Next, the court agreed with appellants “that because the Township Board’s decision was not authorized by law or supported by the requisite evidence, the circuit court did not apply the correct legal principles and misapprehended or grossly misapplied the substantial evidence test to the Township Board’s factual findings when it affirmed the Township Board’s decision.” The court held that the “Township Board failed to articulate a basis for its decision beyond merely restating the ordinance requirements, contrary to the requirements of MCL 125.3502(4), and its decision resulted from the participation of a township supervisor who allegedly had an undisclosed conflict of interest. Without the Township Board addressing these matters, the circuit court did not have a record before it sufficient to apply correct legal principles nor to properly apply the substantial evidence test. Although the circuit court was charged with considering the whole record before it, the paucity of the Township Board’s decision left the circuit court to search the record for information that might have been relied upon by the Township Board in reaching its decision. Because the Township Board gave no meaningful explanation for its decision, the circuit court misapplied the substantial evidence test when affirming the Township Board’s decision, and” the court was “left with the definite and firm conviction that a mistake” was made.
Challenge to the validity of zoning ordinance (ZO) amendments; Compliance with the notice provisions of the Michigan Zoning Enabling Act (MZEA) & the ZO; MCL 125.3202(1) & (2); Personal notice required under MCL 125.3103(3); “Rezoning”; Jostock v Mayfield Twp; Entitlement to mailed notice under MCL 125.3401(7) & (8); Whether a township board meeting was a public hearing entitling a party to personal notice under MCL 125.3401; MCL 125.3306(2)
Holding that rezoning did not occur here, the court concluded the trial court did not err in ruling that defendant-Township Board did not fail to comply with the MZEA’s notice provisions by not providing plaintiffs with personal notice of the ZO amendments at issue. The trial court also did not err in finding “that further discovery would not stand a fair chance of uncovering factual support for” plaintiff-airport’s position. Finally, the personal mailed notice requirement in ZO § 18.12(2) did not apply. Thus, the court affirmed summary disposition for defendants. Plaintiffs claimed “the Township Board violated the notice provisions of the MZEA and the township [ZO] by failing to provide plaintiffs with proper notice when adopting the Solar Ordinance and its subsequent amendments to facilitate [defendant-]Mustang’s industrial-scale solar installation.” They asserted “the Township Board rezoned properties within the township that were classified as agricultural or industrial to permit a previously unpermitted use on those properties, but did not give personal notice as required under MCL 125.3103(3).” Defendants argued they did not rezone the properties. The MZEA does not define “rezoning.” But Michigan case precedent supported that the term “has been used consistently in Michigan law to refer to the changing of the zoning classification of a property.” The court observed that while “the Township Board did not change the classification of the properties in question, [it] so altered the special uses permitted within the classifications to which the properties belonged as to subject [them] to a use far different from the uses previously permitted on those properties.” The court also noted that amending a ZO “and rezoning are not mutually exclusive actions.” But while the amendments here “affected the zoning regulations applicable to all properties within two classifications, the entire effort to amend the [ZO] was to enable the township to deliver to Mustang special use permits to build its massive solar project on specific properties within those classifications. Neighboring properties will be affected to the same extent as if those specific properties had been placed in a different zoning classification. The Township Board, however, did not reclassify the specific properties to a new zoning classification, and as a result the properties were not rezoned as that term is applied in Michigan zoning law.”
Termination of parental rights; Child’s best interests; Effect of relative placement; In re Mason; Failure to consider a guardianship as an alternative
The court held that the trial court on remand did not clearly err in finding the preponderance of the evidence showed that terminating respondent-mother’s parental rights was in her child’s (ES) best interests. Respondent also failed to show plain error as to the trial court’s failure to consider a guardianship as a termination alternative. Thus, the court affirmed the termination order. It “previously affirmed the trial court’s reasonable-efforts finding but vacated the termination order and remanded for further proceedings because the trial court failed to consider ES’s placement with a relative when deciding whether termination was in ES’s best interests. On remand, the trial court complied with” the remand order. It “found that, despite ES’s placement with a relative, a preponderance of the evidence proved that termination was in ES’s best interests because respondent had not adequately participated in parenting classes, domestic-violence classes, counseling services, or a psychological evaluation. [It] also relied on the facts that respondent had not obtained adequate housing, she had very limited interaction with ES since removal, and she did not make any attempt to support ES after” 6/24. The court concluded the record showed she “failed to comply with her case service plan. Although she did participate in parenting time and classes initially, she did not take advantage of all the time with ES available to her. Respondent eventually missed so many parenting-time appointments that she was discharged from the program.” The court held that the trial court did not clearly err in finding that “nonparticipation in services, particularly parenting time, weighed in favor of termination.” The same was true as to its “finding that past and present concerns about domestic violence weighed in favor of termination.” The case service plan included services intended to address “concerns about respondent’s history as both a victim and perpetrator of domestic violence. [She] did not participate in domestic-violence services until at least” 10/24. Further, “the trial court explicitly considered” the relative placement as weighing against termination. But it also found respondent had not provided ES “any emotional, mental, or physical support” while the “relative placement provided the care, love, and permanence that ES required.” The court did “not have a definite and firm conviction” the trial court made a mistake.