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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Attorney fees under 42 USC § 1988; “Prevailing parties”; Whether the relief plaintiffs obtained was “enduring” enough to support prevailing-party status
The court held that plaintiffs’ success in obtaining a preliminary injunction against certain voting provisions seven months before the provisions were repealed constituted “enduring” relief entitling them to an attorney-fee award under § 1988 as “prevailing parties.” Plaintiffs challenged a Tennessee law that imposed “a raft of new requirements upon persons or organizations conducting voter-registration activities in the State[,]” which they alleged significantly burdened their rights of speech and association. They also alleged that the law was unconstitutionally vague. The district court preliminarily enjoined the statute, and seven months later, the provisions were repealed. The parties stipulated to dismissal without prejudice. Plaintiffs then moved for attorney fees under § 1988 as prevailing parties. The district court granted their motion, but reduced the amount requested. On appeal, the court noted that plaintiffs were undisputedly granted a preliminary injunction, which “was never reversed, dissolved, or even vacated after the plaintiffs’ voluntary dismissal of the case.” Defendants argued that the court relief plaintiffs obtained was not “‘enduring’ enough” to confer prevailing-party status where the laws were repealed seven months later. The court explained that the relief in this case was not “fleeting” where the injunction was granted four months after the case was filed, “after full briefing and an opportunity for each side to present evidence supporting its position;” and the injunction was never dissolved or vacated. The voter-registration drives plaintiffs were able to conduct during the seven months before the state government repealed the offending provisions, and the registrations that resulted, constituted “enduring” relief. The court found that a “preliminary injunction that, as a practical matter, concludes the litigation in the plaintiffs’ favor in the district court, and that is not challenged on appeal, is—on this record at least—enduring enough to support prevailing-party status under § 1988.” Affirmed.
Whether county ordinances were conflict-preempted by state law; Michigan’s Unmanned Aircraft Systems Act (UASA); MCL 259.305; The Drone Act; MCL 259.320(1)
The court affirmed an “order granting declaratory judgment and a permanent injunction in favor of plaintiffs in this case challenging, as preempted by state law, county ordinances prohibiting the operation of unmanned aerial systems.” Defendants admitted that they were not challenging on appeal the trial court’s actual ruling as to conflict preemption under MCL 259.305. Rather, they stated “on appeal that ‘Ottawa County limits its challenge to the injunction on the basis that the Drone Act, specifically MCL 259.320(1), recognizes that a property owner such as the County has the right to establish rules against drone usage on its property enforceable through criminal trespass, being MCL 750.552.” However, the court noted the “case did not involve a criminal trespass. And the provisions of MCL 259.320(1) were not at issue in this case. Plaintiff brought this civil action seeking a declaratory judgment and permanent injunction on the ground that defendants[’] Park Rule and specific ordinances were conflict-preempted by the UASA, specifically, MCL 259.305.” And this was the basis of the trial court’s ruling. The court noted that it “is an error-correcting court, but defendants are requesting this Court to address, in the first instance, whether defendant Ottawa County—as a property owner and not as a political subdivision—can ‘prohibit drone usage on pain of a criminal trespass.’” The court concluded they were “actually seeking a gratuitous opinion on a matter of their own interest—not the correction of an alleged error by the trial court.” The court found that it would be inappropriate for it “to address this issue that was not raised, argued, considered, and decided in the trial court and we decline to do so.”
Limitations on cross-examination; The rape-shield statute (MCL 750.520j); People v Hackett; People v Williams; Evidence of a witness’ bias or interest in a case; People v Mumford; The hearsay exception for statements made for purposes of medical treatment or diagnosis (MRE 803(4)); People v Mahone; Other acts evidence; MCL 768.27a & 768.27b; MRE 403; People v Watkins; The tender-years hearsay exception (MRE 803A); People v Gursky; Sexual-assault nurse examiner (SANE); Children’s Protective Services (CPS)
The court held that there was no error in the trial court’s prohibiting defendant from questioning the victim (A, his daughter) in this CSC case “about prior allegations of sexual abuse she made against a family friend.” There also was no abuse of discretion in not allowing him to inquire “into speculative and potential punishments for crimes with which” his son (J) was never charged. Further, the trial court did not abuse its discretion in admitting statements A made to a SANE under MRE 803(4) and to her grandmother under MRE 803A, or other acts evidence under MCL 768.27a and 27b. Thus, the court affirmed defendant’s CSC I convictions. The admissibility of the evidence about A’s references to sexual abuse by a family friend hinged on “whether defendant could make a sufficient showing” the allegations were false. The trial “court was only informed that, when asked about the allegations, [A] responded, ‘I don’t know’ or ‘I don’t remember.’” These responses did not establish that A’s “prior allegations were shown to be false. Similarly, the failure of a CPS investigation to substantiate the allegations” did not establish that they were proven false. Defendant next contended that the trial court abused its discretion when it barred him from cross-examining J about the potential penalties for crimes J “avoided as part of his immunity agreements with the” prosecutors in two counties. However, J was not charged in either county “and, without knowing what charges [he] faced, it was impossible to reliably determine what potential punishment [he] avoided. The trial court appropriately permitted the jury to be made aware of the immunity agreements under which [J] testified, thereby allowing defendant to confront the witness regarding a key influence that could have affected his credibility.” As to the other acts evidence, the court was “satisfied that the trial court appropriately considered the Watkins factors” and concluded that the decision to admit this evidence “did not fall outside the range of reasonable and principled outcomes.” As to A's statements to her grandmother, A “spontaneously started the conversation without any indication that [her] grandmother prompted [A’s] statements or influenced them with leading questions.” And the trial court did not abuse its discretion in finding the “four-month delay in disclosure was reasonable” given the evidence of A’s “well-grounded fear of defendant.”
Motion for a new trial; People v Budzyn; Ineffective assistance of counsel; Evidentiary issues; Other acts evidence; MRE 404(b)(1); Relevant evidence; MRE 401; Consecutive sentences
The court held that the trial court did not abuse its discretion in denying defendant’s “motion for a new trial or evidentiary hearing, sustaining the prosecutor’s objections, or imposing consecutive sentences. Additionally, his trial counsel was not ineffective for not raising a futile objection.” Defendant was found guilty of CSC I, II, III, and IV. He then moved for a new trial and evidentiary hearing, claiming that “the jury was introduced to improper, extraneous messages in support of the victims.” The trial court denied his motion and sentenced him to consecutive sentences. On appeal, he argued, among other things, that “the trial court abused its discretion for not granting him a new trial, or at least an evidentiary hearing, based on” messages displayed on parked cars in the courthouse parking lot. As to the first Budzyn factor, although “defendant argued that there were witnesses who saw the cars before the jury arrived, and the prosecutor argued that the jury was required to be in the courthouse before the cars even arrived in the parking lot, there was no evidence admitted or proffered by which the trial court could make a determination.” As to the second Budzyn factor, even assuming “that the jury was exposed to the messages, there [was] nothing to support that the messages created a real and substantial effect on the jury’s verdict. The messages merely stated that the owner of the vehicle believed the victims, and the messages did not contain information that was case-specific over which the jury was to deliberate. And, even assuming that a juror would make the connection to the case, the messages were not sensationalist or likely to excite the passions or overwhelm a juror’s rational judgment. The messages did not, in short, create a real and substantial possibility of affecting the jury’s verdict.” The court noted that for “the first time on appeal, defendant attached new affidavits to his brief on appeal to further explain when witnesses saw the messages on the cars. Importantly, these affidavits were not submitted to the trial court during the hearing, and most were signed after defendant” filed his appeal. The court held that even though it “does not consider new evidence on appeal unless justice requires it,” the affidavits were not dispositive of the Budzyn factors, and were “not particularly helpful to the resolution of this issue, because the affidavits still d[id] not definitively show that the jury was confronted with the messages on the cars. They only state[d] that the jury may have been able to see them if they arrived in the parking lot at a certain time.” Affirmed.
Coverage dispute; “Occurrence”; “Accident”; Allstate Ins Co v McCarn; “Intended or expected” language in a policy exclusion; Auto-Owners Ins Co v Harrington
The court held that the trial court clearly erred in granting plaintiff summary disposition, ruling that he was covered under the insurance policies at issue, because his actions could not “be considered an ‘occurrence’ under the” policies’ definitions. He was an employee of defendants’ insured, a market. He was arrested for allegedly assaulting a customer, who sued the market “and plaintiff for assault and negligence.” Both policies contained similar provisions as to coverage for “bodily injury.” On appeal, defendants argued the trial court erred in “determining plaintiff was covered under both insurance policies on the basis that reasonable force was used by plaintiff because the trial court did not first determine the assault was an ‘occurrence’ under the policies.” The court noted that each “policy applied only if the ‘bodily injury’ was caused by an ‘occurrence,’ which is defined as ‘an accident, including continuous or repeated exposure to substantially the same general harmful conditions.’” Thus, the court had to “determine whether the incident constituted an ‘occurrence’ such that the policy took effect.” The policies did not define the term accident. The court noted that in cases where this term was not defined, the “Supreme Court has repeatedly stated that ‘an accident is an undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated and not naturally to be expected.’” The court further noted that the policies here provided “an exclusion that no coverage exists for bodily injury expected or intended by the insured.” The court concluded that, considering “the incident from the standpoint of plaintiff as the insured, the incident was not accidental, even though the consequences of the customer’s injury may not have been intentional. Plaintiff testified he did not intend to harm the customer, but only intended to knock the phone out of the customer’s hand to prevent him from filming the encounter and because plaintiff did not want a video to reflect poorly on the store or its reputation. The recorded video of the incident clearly shows that plaintiff intended his actions and that plaintiff should have reasonably expected the direct risk of harm resulting from the consequences of his actions.” As his actions did not fit within the “Supreme Court’s definition of ‘accident,’” the trial court clearly erred. Reversed and remanded.
Reasonable reunification efforts; Failure to adjourn the termination hearing
Holding that there were no errors warranting reversal, the court affirmed termination of respondent-mother’s parental rights to the children. Respondent first argued that DHHS “did not satisfy its statutory obligation to provide reasonable services toward reunification.” Specifically, she argued that DHHS “failed to provide her with mental health services to assist her in overcoming her dependency on controlled substances.” The court held that the record did not support her assertion that DHHS “failed to make reasonable efforts to reunite respondent with her children. And, considering respondent’s failure to participate in and benefit from the services provided, respondent has not demonstrated that she would have fared better if additional services had been offered.” Thus, she was not entitled to relief as to this issue. Respondent next argued that “the trial court erred by failing to adjourn the termination hearing on [1/6/22], after becoming aware that she had recently used drugs and may be experiencing withdrawal symptoms.” The court held that under “the circumstances, considering the trial court’s efforts to investigate the situation, and that respondent was represented by a lawyer, repeatedly denied that she was under the influence of any substances, and stated that she could proceed, the trial court did not violate respondent’s right to due process by continuing the hearing.” Moreover, respondent did “not explain how her condition affected the proceedings, or how the proceedings would have been different if the court had continued the hearing to another date.” Thus, she failed to show that she was entitled to relief on the basis of this issue.
Termination under § 19b(3)(g); Children’s best interests
Holding that the trial court did not err by terminating both respondents’ parental rights to their five children, and that termination was in their best interests, the court affirmed. It concluded that “with suitable housing still an issue and both respondents failing to comply with their respective treatment plans, the trial court did not clearly err by finding that termination of their parental rights was supported by” § (g).
Reasonable reunification efforts; Aggravated circumstances; In re Simonetta; MCL 722.638(1) & (2); Termination at the initial disposition; MCR 3.977(E); § 19b(3)(k)(iii); Children’s best interests; In re Olive/Metts Minors; Doctrine of anticipatory neglect; In re LaFrance Minors
The court held that respondent-mother did not establish the trial court plainly erred in “terminating her parental rights without ordering the DHHS to provide reunification services.” Also, the trial court did not err by finding termination was in the children’s best interests. The court noted that while “the DHHS did not use the phrase ‘aggravated circumstances’ in the petition, it sought termination of respondent’s parental rights under” multiple statutory grounds, including § (k)(iii). Also, the petition “included factual allegations that identified the acts constituting ‘battering, torture, or other severe physical abuse.’” Respondent pled “no contest to these allegations and stipulated to their use to establish the factual basis for her plea. The trial court accepted respondent’s no-contest plea to statutory grounds for termination, finding that the petition allegations provided an adequate factual basis. The trial court also found that several statutory grounds for termination had been proven, including” § (k)(iii). While “the trial court did not expressly state that it found aggravated circumstances excusing the need for reasonable efforts, the court’s finding of statutory grounds under subparagraph (k)(iii) ‘amount to a judicial determination’ that respondent subjected” one of the children, NR, “to aggravated circumstances under MCL 722.638(1)(a)(iii).” Thus, the DHHS was “not statutorily required to make reasonable efforts at reunification, and respondent cannot establish plain error.” Respondent cited Simonetta “to argue that failing to make an appropriate finding of aggravated circumstances is a reversible error.” Broadly speaking, the court agreed. But on closer inspection, it was “not persuaded that the Supreme Court’s order mandated such a bright-line rule.” The court compared § (k)(iii) with MCL 722.638(1)(a)(iii), which “specifically provides that one aggravating circumstance is abuse by a parent that includes ‘[b]attering, torture, or other severe physical abuse’—identical language to MCL 712A.19b(3)(k)(iii).” In this case, unlike in Simonetta, the trial court “necessarily made a ‘judicial determination’ of aggravating circumstances under MCL 722.638(1)(a)(iii) by finding clear and convincing evidence that respondent committed abuse involving ‘[b]attering, torture, or other severe physical abuse.’” Affirmed.
Termination under §§ 19b(3)(c)(i), (g), & (j); Children’s best interests
Holding that the trial court did not clearly err by finding clear and convincing evidence supported termination of respondent-mother’s parental rights to the children (KW, SM, KM, and DF) under §§ (c)(i) and (j), and that termination was in their best interests, the court affirmed. There was clear and convincing evidence that DHHS “made reasonable efforts toward reunification. There was also clear and convincing evidence that there was no reasonable likelihood that the conditions that led to the adjudication would be rectified within a reasonable time considering the children’s age. Respondent’s children had been in care for three years, respondent had moved six different times during the case, and still did not have safe and suitable housing.” Thus, the trial court did not clearly err by finding clear and convincing evidence supported termination under § (c)(i). While the trial court clearly erred by finding that § (g) was established by clear and convincing evidence, this error was “harmless because it is only necessary to establish one statutory ground for termination.” As to § (j), “the trial court did not clearly err by finding that there was a reasonable likelihood, based on respondent’s conduct or capacity, that the children would be harmed if they were returned to respondent’s care. There was clear and convincing evidence that respondent did not have an appropriate home for the children to live if they were returned to her care. She had moved many times during the case and sometimes lived in unsafe and unsanitary conditions. In addition, respondent had been living with a man whom [the foster care worker] had informed her was inappropriate to have around the children because of his criminal history.” Although she “agreed that her children could not live with him and she was not planning with him, she continued to live with him. There was also evidence that the children, particularly KW, were traumatized because of their prior experiences living with respondent, and the children were adamant about not wanting to be returned to her care.”
Petition for an accounting of a trust’s funds; MCL 700.7814; “Distributee” (MCL 700.1103(o)); “Qualified trust beneficiary” (MCL 700.7103(g)); “Nonqualified trust beneficiary”
Holding that both appellants were permissible distributees under the trust at issue, and qualified trust beneficiaries, the court reversed the part of the trial court’s order that denied their request for an accounting and remanded “for entry of an order directing the trustees to provide an accounting” complying with MCL 700.7814(3)’s requirements. By its own terms, the trust (an educational trust) was to terminate in 2021. Appellees, two of its three trustees, petitioned the trial court for instructions as to termination of the trust and distribution of its residue. Appellants, “who were applicants for financial assistance during the life of the Trust, did not object to” its termination, but they petitioned “for a full accounting of the Trust’s funds, claiming such accounting was never received during the life of the Trust. Concluding appellants were ‘qualified trust applicants’ but not ‘qualified trust beneficiaries,’ the trial court denied the request.” On appeal, the court agreed with them that they were entitled to an accounting. They were both “permitted, but not entitled to, distributions from the Trust,” and as a result were permissible distributees under MCL 700.7418. Further, they “are ‘trust beneficiaries’ under MCL 700.7103(l)(i) because they have a contingent present or future beneficial interest in the Trust.” The court determined that their “interest was contingent, and not vested, because their request for assistance had to be approved by the trustees.” As such, they were entitled under MCL 700.7814(3) to “receive ‘a report of the trust property, liabilities, receipts, and disbursements, including the source and amount of the trustee’s compensation, a listing of the trust property and, if feasible, their respective market values . . . .’” While they received some bank records, there was no dispute that they “did not receive, at minimum, the ‘disbursements’ made by the trustees to other financial-assistance applicants.”