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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Disability discrimination in employment; Whether there is a private cause of action for retaliation under § 504 of the Rehabilitation Act (29 USC § 794); §§ 504(a) & (d); Whether Congress intended to authorize a private cause of action; Failure to accommodate claim; Michigan Department of Corrections (MDOC); Americans with Disabilities Act (ADA); Age Discrimination in Employment Act (ADEA)
[This appeal was from the ED-MI.] In an issue of first impression in the Sixth Circuit, the court held that § 504 of the Rehabilitation Act does not provide a private cause of action for retaliation. It also concluded that defendants-MDOC and State of Michigan were properly granted summary judgment on plaintiff-Smith’s claim of failure to accommodate his disability. Smith, formerly an MDOC corrections officer, sued defendants under § 504 of the Rehabilitation Act for failure to accommodate his disability and retaliating against him for requesting accommodation. The district court granted defendants summary judgment on the accommodation claim, and a jury found for them on the retaliation claim. On appeal, Smith challenged several aspects of the district court’s rulings. The court first considered whether § 504 of the Rehabilitation Act authorizes a private cause of action for retaliation. It reviewed two relevant provisions of the Act, §§ 504(a) and (d). The court noted that the Supreme Court has never ruled “that any provision of the Rehabilitation Act creates a private right of action for retaliation.” The Sixth Circuit has previously “‘proceed[ed] under the assumption that a cause of action for retaliation exists under § 504.” It acknowledged that several other circuits routinely accept Rehabilitation Act retaliation claims but the court focused on “the presumption against implied causes of action . . . .” The court explained that “Congress’s decision to omit a retaliation provision from the Rehabilitation Act—after it included such a provision in statutes such as the ADA, Title VII, and the ADEA—is strong evidence that it did not intend to authorize private retaliation claims under the Act.” As to Smith’s failure to accommodate claim, the court affirmed summary judgment for defendants, concluding Smith did not create “a genuine dispute as to whether he was ‘otherwise qualified’ for” the corrections officer’s position, “with or without a reasonable accommodation.” And it found that the accommodation he sought was “not reasonable.” Affirmed.
Treaty tribe status as a defense to state fishing regulations; Three-prong test; Part of a group of people of Indian ancestry; Descended from a treaty signatory tribe; Maintaining an organized tribal structure
The court held that “defendant presented evidence to support the district court’s conclusion that the Mackinac Tribe was a group of citizens of Indian ancestry that is descended from a treaty signatory and that has maintained an organized tribal structure.” And, because the circuit court did not err in affirming the district court’s order dismissing his “charges of spear fishing in a closed stream in violation of MCL 324.48711 and” 324.48715, the court affirmed the circuit court’s order. The prosecution argued “the documentary evidence necessary to establish treaty-tribe status is similar to the documentary evidence necessary to support federal tribal recognition.” The court disagreed, finding that “the type and amount of evidence needed for defendant’s affirmative defense need not be the same as for federal recognition.” Rather, he was “required to submit enough evidence that ‘when weighed with that opposed to it, has more convincing force and the greater probability of truth.’” However, it noted that “the lack of rebuttal evidence from the prosecution is not a silver bullet because defendant still had the burden of proving his affirmative defense.” To do so, he “had to satisfy the three-prong test” the court set forth in its decision in the prior appeal in this case. As to “the first prong, the district court concluded that defendant was part of a group of people of Indian ancestry.” To the extent the prosecution attacked witness-A’s (who identified himself as the “Chairman of the Mackinac Tribe of Odawa”) “testimony for lack of detail or documentation, this attack relates back to the federal recognition standard, which does not apply, as well as to issues of weight and credibility, which are matters that we defer to the trial court.” The court held that “there was evidence showing that the Mackinac Tribe was a group of citizens of Indian ancestry.” The district court found as to the second prong “that defendant was descended from a treaty signatory tribe.” The court concluded that while “one portion of the district court’s rationale was problematic, the remainder of its rationale was sound because it addressed the group as a whole rather than just defendant,” A, and A’s relatives. As to the third prong, maintaining an organized tribal structure, the court held that while “the nature of the Mackinac Bands may have evolved over time, there were nonetheless defining characteristics—the kinship-based structure, connection to the Mackinac region, fishing, powwows—as well as less modern political structures that survived from 1836 until the present day. The circuit court recognized this in its decision, and we are not left with a firm conviction that the district court’s findings were mistaken.”
Prosecutorial misconduct; Gang-related testimony; Distinguishing People v Wells; Ineffective assistance of counsel; Failure to object to the gang-related testimony; Admissibility of investigative-subpoena testimony; Distinguishing People v Seals; Voluntariness; People v Cipriano
The court held that even if there were a plain error, defendant-Newbern did not establish “that the alleged prosecutorial misconduct affected his substantial rights.” Also, he could not “establish ineffective assistance predicated on his lawyer’s failure to object to the gang-related testimony.” Finally, on this record, he failed to show “that the admission of his investigative-subpoena testimony was plain error affecting his substantial rights.” Newbern was convicted of first-degree premeditated murder, CCW, FIP, and felony-firearm. He argued “that the prosecutor committed misconduct by eliciting ‘extensive’ testimony from” a police detective about two local gangs. Newbern asserted “that it was improper because there was no evidence in this case of a connection between Newbern’s conduct and gang affiliation.” He relied on Wells. The court noted that unlike the prosecutor in Wells, the prosecutor here “only briefly introduced evidence that the two groups mentioned by Newbern were local gangs. She did not use that evidence to suggest that Newbern’s motive for murdering [K] was gang related, nor did she argue that Newbern was a member of either gang.” The court held that given “the brief and limited scope of the gang-related evidence, its innocuous nature, and the fact that no unfairly prejudicial inferences were argued based upon the admitted evidence,” Newbern did not “establish a clear or obvious error.” Further, it noted “the substantial evidence indicating that [he] was the person who shot [K] to death—which includes video footage, cellphone location analysis, eyewitness testimony placing him at the scene of the shooting, and evidence that he was in possession of a gun on the day of the shooting[.]” Newbern also argued “that his investigative-subpoena testimony is inadmissible because it was not voluntary and understanding as he was high, intoxicated, and sleep deprived when he testified.” But the court concluded that “considering the totality of the circumstances, the Cipriano factors militate toward a finding that Newbern’s testimony was voluntary. Accordingly, even if this issue were raised before the trial court, Newbern cannot show that the evidence would have been excluded.”
Sentencing for first-degree murders committed by an 18-year-old; Consideration of “the attributes of youth”; Miller v Alabama; People v Parks; People v Boykin; People v Copeland; “Brevity” of the trial court’s statement in support of its sentence; Reliance on the facts of the crimes
Holding that the trial court did enough to satisfy the requirement of Parks and Boykin to consider defendant-Robinson’s youth in resentencing him for first-degree murders committed when he was 18, the court affirmed his 35-to-60 year sentences. He “murdered three strangers after a late-night sexual encounter with them.” While he argued on appeal “that the trial court’s ‘brevity’ in proclaiming his sentence” showed that it did not consider his youth as a mitigating circumstance, the court concluded that its brief statement did not “run afoul of Parks and its progeny. Crucial here is the background animating the trial court’s discussion. [It] considered extensive materials detailing Miller’s application, expressly leading and concluding with that point, stating twice that it considered ‘the Miller factors as it relates to whether or not they would be mitigating in terms of the sentence that you would receive.’” Further, as in “Copeland, the trial court had the ‘benefit of hindsight,’ sentencing Robinson then as a 23-year-old with several years of incarceration behind him.” Thus, the court found that the record revealed “the trial court appropriately considered Robinson’s youth when resentencing him.” In addition, its heavy reliance on the facts of his “atrocious crimes does not give us pause. ‘[T]he circumstances of the crime remain a primary consideration in determining a proportionate sentence, . . . [and t]he factors of youth do not detract or preclude that consideration, they simply add’ to it.” The trial court’s statements as to “Robinson’s deliberateness reinforces its consideration of [his] youth—in its view, Robinson did not act with the typical ‘characteristics of youth’ like immaturity, impulsivity, and lack of discipline and self-restraint.” Instead, he “had time to reflect following the group sexual encounter by leaving, returning to his house, changing clothes, and then retrieving a gun, donning a mask, and returning to murder those involved. The trial court reasonably concluded that Robinson’s actions were not youthfully impulsive.”
Habeas corpus; Whether petitioner satisfied the “gate-keeping” requirements of 28 USC § 2244(b)(2)(B); The “actual innocence” exception to the bar on successive petitions; Whether petitioner established actual innocence by clear & convincing evidence; § 2244(b)(2)(B)(ii); Case v Hatch (10th Cir); Clark v Warden; Timeliness under the Antiterrorism & Effective Death Penalty Act; § 2244(d)(1)(D); Equitable tolling; Denial of an evidentiary hearing
[This appeal was from the ED-MI.] The court held that petitioner-Houston failed to offer clear and convincing evidence that would convince a reasonable juror of his “actual innocence” to support a successive petition under § 2244(b)(2)(B). It further concluded that the district court properly dismissed his petition for failing to satisfy the requirements for equitable tolling. A jury convicted Houston of first-degree murder and firearm offenses. He filed this second habeas petition based on ineffective assistance of counsel. Claiming that he was innocent and that another man committed the crime, he offered four affidavits, including one from himself and one from an individual (M) he met in prison who identified the other man as the perpetrator. He claimed that his trial counsel failed to pursue the evidence. The district court found the affidavits unreliable and concluded Houston did not meet either prong of § 2244(b)(2)(B). It also determined that the petition was untimely and Houston did not satisfy the equitable tolling requirements. The court explained that the actual innocence exception is to be rarely applied and only in “extraordinary” cases. Under § 2244(b)(2)(B)(ii), the court must consider whether “‘but for constitutional error,’” there were sufficient facts to establish by clear and convincing evidence that no reasonable juror would have convicted petitioner. It noted that it has yet to define the facts necessary to satisfy § 2244(b)(2)(B)(ii) and the parties did not brief the issue. So it accepted their understanding of the rule, under Case: “petitioner’s new evidence must be ‘rooted in constitutional error[] occurring during trial.’” The court determined that only one of the affidavits was rooted in Houston’s constitutional claim. Even if it was accepted that had his attorney investigated, M would have been found, resulting in his testifying to the information in the affidavit at trial, the court declined to “assume that every reasonable juror would believe [M’s] testimony over the other” trial witnesses. The court noted that M signed his affidavit 12 “years after the crime occurred, only after he met Houston in prison, and while serving a life sentence.” The court also upheld the district court’s untimeliness ruling, rejecting Houston’s claim he was entitled to equitable tolling based on actual innocence. The affidavits he presented from others had “serious reliability problems” and his own affidavit failed “to meet the standard for equitable tolling, which” required him to show “‘that he factually did not commit the crime.’” Finally, he was not entitled to an evidentiary hearing “due to the unreliability of [his] evidence[.]” Affirmed.
Unjust enrichment & fraudulent misrepresentation claims arising from gambling at a casino; Subject-matter jurisdiction; The exclusive jurisdiction of the Michigan Gaming Control Board; The Michigan Gaming Control & Revenue Act; “Patron dispute” (MI Admin Code, R 432.1106(b)); Davis v BetMGM, LLC
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 81299 in the 4/2/24 edition) and remanded the case to the Court of Appeals for reconsideration in light of Davis.
The No-Fault Act; Survivor’s benefits; Policy rescission based on a material misrepresentation in an insurance application; Fraud; Innocent misrepresentation; Whether the equities had to be balanced; Pioneer State Mut Ins Co v Wright; Whether plaintiff-personal representative (PR) qualified as an innocent third party; Van Dyke Spinal Rehab Ctr, PLLC v USA Underwriters; Return of premiums paid; Attempt to distinguish between mutual & equitable rescission; Application signature
While the court agreed with plaintiff-PR that the trial court had to determine whether defendant-insurer “returned the premiums paid before ratifying defendant’s rescission of the” no-fault policy at issue, it found no error as to her other arguments challenging summary disposition for defendant. Plaintiff sought to recover survivor’s benefits from defendant after the decedent-insured’s (Ericka) death. Ericka was struck by vehicles while a pedestrian. Defendant argued “it was entitled to equitably rescind the policy because Ericka materially misrepresented that she was the only household member at the address indicated on the” insurance application. The court concluded there was “no genuine issue of material fact that Ericka at least committed innocent misrepresentation. Ericka represented on her application that she was the sole resident at the Farmington Road address, which was false, because she lived with her children and grandchild at the time. Further, defendant submitted an affidavit by” its manager of underwriting investigations (S) stating “that defendant relied upon Ericka’s representation and extended insurance coverage based upon her ‘representation that she was the only person living at the Policy Address.’ [S] also provided that the insurance premium would have increased by $227.50 had defendant known about the additional household members, making the representation a material one. Under these circumstances, it was permissible for defendant to declare the policy void ab initio based on the fraudulent manner that it was acquired.” Among other things, the court also determined that plaintiff did “not qualify as an innocent third party because she did not suffer a physical or financial injury. Because [her] claims are derivative of Ericka’s, she is not entitled to no-fault benefits, and the trial court was not required to conduct the balancing test . . . .” But the court was “unconvinced by defendant’s attempt to distinguish between mutual and equitable rescission in” regard to the return of premiums. It “remanded for the trial court to determine whether a refund check was returned, received, and negotiated by the parties.” Affirmed in part, reversed in part, and remanded.
Prescriptive easement over a private subdivision road; MCL 600.5801(4); Marlette Auto Wash, LLC v Van Dyke SC Props, LLC; Slander of title limitations period; MCL 600.5805(11); Accrual; Equity Funding, Inc v Village of Milford; Fraudulent concealment of claim; MCL 600.5855; Sills v Oakland Gen Hosp; Trespass; Attorney fees under bylaws; Frivolousness sanctions; MCL 600.2591; Fleet Bus Credit, LLC v Krapohl Ford Lincoln Mercury Co; Homeowners association (HOA)
The court held that defendant did not establish a prescriptive easement over the subdivision road and that the trial court properly enforced the plat dedication, rejected the fiduciary-duty counterclaim, dismissed plaintiff-HOA’s slander of title and trespass claims, and denied attorney fees. Thus, it affirmed. The HOA alleged violations of deed restrictions after defendant removed trees larger than six inches in diameter and improved a driveway on Lot 1 without submitting required plans, and it sought to bar his use of Carnegie Trail to reach his adjacent parcel (Lot 0). The trial court entered a permanent injunction prohibiting direct access from Carnegie Trail to Lot 0. On appeal, the court held defendant failed to meet the “clear and cogent evidence” standard because the record showed “infrequent use of Carnegie Trail to directly access Lot 0” and that he “more often than not” parked on Lot 1 and then proceeded to Lot 0, which defeated continuity of use. As to the injunction, the court emphasized that the dedication language stating that “CARNEGIE TRAIL IS PRIVATE AND FOR THE USE OF THE LOT OWNERS OF CARNEGIE WOODS SUBDIVISION ONLY” was unambiguous and thus, the trial court’s injunctive relief prohibiting defendant “from using Carnegie Trail to travel directly to Lot 0, but allowing unrestricted use if traveling to Lot 1, was proper.” As to the HOA’s arguments for broader injunctive relief, it offered no proof that defendant’s permitted use of the road “would burden Carnegie Trail in a way not contemplated by the Proprietor’s Certificate,” and it noted the HOA conceded it was “impossible to tell whether wear and tear on Carnegie Trail was attributable” to defendant’s activity. On his fiduciary-duty counterclaim, the court found no abuse of rule enforcement because defendant admitted that he “did not submit any plans or specifications to the architectural committee” and that the removed trees were over six inches in diameter, so the HOA properly acted under its governing documents. As to slander of title, the court held the claim was time barred and it rejected fraudulent concealment because the HOA did not plead any concealment and the easement in question did not exist at the time of defendant’s 1995 letter. The trespass claim failed because “a claim for violating deed restrictions sounds in breach of contract, not in trespass.” Finally, the court held attorney fees were correctly denied because the bylaws did not “specifically provide” for fees and nothing in the record established frivolousness.
Real property ownership dispute; Fraudulent misrepresentation; Innocent misrepresentation; Undue influence/breach of fiduciary duty; Promissory estoppel; Quiet title; “Gift”
The court affirmed the trial court’s dismissal of plaintiff’s claims for fraudulent misrepresentation, innocent misrepresentation, undue influence, and quiet title. But because the fourth count of her “complaint, titled ‘equitable estopple [sic],’” substantively stated a claim for promissory estoppel and the record indicated that summary disposition of that claim was not currently warranted, it reversed the dismissal of that count. The underlying dispute involved real property purchased by plaintiff but thereafter titled in the name of defendant-UNCORKbuild. First, plaintiff argued “that she established claims for fraudulent misrepresentation and innocent misrepresentation, and the trial court erred by dismissing counts one and two of her complaint.” Defendants responded that the two counts were correctly dismissed “because, in relevant part, misrepresentation cannot be based upon future promises.” The court agreed with defendants. It found that while plaintiff summarily asserted “that defendants made ‘misrepresentations,’ when her complaint and affidavit are fairly considered in context, the essence of her issue is simply that defendants failed to fulfill their agreement with her to allow the subject property to be used as a ‘House of Prayer.’ This allegedly broken promise by defendants, seemingly the result of a falling out between plaintiff and [defendant-]Hooker shortly after closing, cannot be remedied through a claim for fraudulent or innocent misrepresentation.” As to the undue influence claim, the court agreed with defendants’ argument that “plaintiff failed to allege an underlying misrepresentation or other type of coercion to sustain” this claim. Next. plaintiff argued “that she established a claim for promissory estoppel and that the trial court erred by dismissing that count.” The court agreed with her “that the fourth count in her complaint actually states a claim for promissory estoppel, notwithstanding that it was mislabeled as equitable estoppel.” Further, it also agreed “with plaintiff that, in light of the record currently before” it, dismissal of this claim was not warranted. However, it agreed “with defendants that the independently-labeled ‘quiet title’ count of the complaint misses the mark because plaintiff did not allege a preexisting superior interest in the” property. Finally, because there was a question of fact as to the intent element, defendants were “not entitled to summary disposition of the entire case under MCR 2.116(C)(10) on the basis that the subject property was a ‘gift.’” Remanded.