Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Domestic relations arbitration award; Postema v Postema; Michigan Child Support Formula (MCSF)
The court affirmed in part but remanded for the recalculation of child support based on plaintiff-Lam’s (mother) previous three years of income pursuant to the 2017 MCSF 2.02(B). It held that the “arbitrator did not exceed his powers, improperly refuse to hear material evidence, or conduct the hearing in a way that substantially prejudiced” defendant-Do (father) as to “consideration of Lam’s postdoctoral work at Stanford University.” The arbitrator acknowledged and applied the relevant principles. “After hearing the testimony and reviewing the evidence, the arbitrator found that Lam’s position at Stanford was ‘a job . . . which furthered her career,’ and was not ‘additional training and/or continued education’ subject to division under Postema. We may not second-guess that factual conclusion.” As to consideration of Lam’s offer letter from Stanford, “the arbitrator was not required to mention every piece of evidence presented and considered in writing the arbitration award.” Further, all but two sentences of the letter focused “on salary, benefits, and tax consequences—matters pertinent to a job and not an educational pursuit.” But the court found “that the arbitrator acted in contravention of controlling law in calculating the parties’ salaries for the purpose of determining” child support. The court held that the 2017 MCSF was in effect at the relevant times. “2017 MCSF 2.202(B) provides that ‘[w]here income varies considerably year-to-year due to the nature of the parent’s work, use three years’ information to determine that parent’s income.’” Lam offered evidence as to “her annual salary for teaching in the fall and winter semesters. Lam explained that she also is required to conduct research fulltime in the summers, but will only be compensated for that work if she secures a grant.” She secured a grant in 2019. “Lam’s ‘income varies considerably year-to-year’ depending on her ability to secure a grant. Accordingly, the arbitrator was required to consider three years of information in calculating” her income. Do also contended that “additional income should be imputed to Lam for her unpaid summers because she ‘has an unexercised ability to earn.’” Do implied that “Lam could earn more if she accepted a private sector job with year-round work and pay. This is not what the MCSF contemplates.” Lam was “not voluntarily unemployed or underemployed and does not have an unexercised ability to earn. She is gainfully employed as a professor.” The court noted professors are “expected to research and publish to support the reputation of their institution without compensation from their employers. Failure to do so means the professor will not gain tenure or could be terminated. This time away from the classroom simply is not a period of voluntary unemployment.”
Resentencing for first-degree murder for a crime committed when defendant was a juvenile; Burden of proof; People v Taylor; Life without parole (LWOP)
In an order in lieu of granting leave to appeal, the court vacated in part the Court of Appeals judgment (see e-Journal # 74439 in the 1/6/21 edition), vacated defendant’s sentence, and remanded to the trial court for resentencing. The court held in Taylor that a trial court may not impose a LWOP sentence “on a defendant who was under 18 years of age at the time of his crime unless the prosecution has overcome its burden to rebut the presumption, by clear and convincing evidence, that [LWOP] is a disproportionate sentence.” It concluded here that defendant was entitled to resentencing because the trial court “did not apply the ‘clear and convincing’ standard[.]” The court denied leave to appeal in all other respects because it was not persuaded it should review the remaining questions presented. Concurring in part and dissenting in part, Justice Viviano reiterated, for the reasons stated in his dissent in Taylor, that he did not believe there is a presumption that LWOP “is a disproportionate sentence or that the prosecution is required to rebut this presumption in order for a court to impose” this sentence on a defendant who was under 18 when the crime was committed. Thus, he disagreed that defendant was entitled to resentencing. He concurred in the denial of leave in all other respects.
Sentencing for first-degree murder for a crime committed when defendant was a juvenile; Burden of proof; People v Taylor; Life without parole (LWOP)
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 71477 in the 10/22/19 edition), vacated defendant’s sentence, and remanded to the trial court for resentencing. The court held in Taylor that a trial court may not impose a LWOP sentence “on a defendant who was under 18 years of age at the time of his crime unless the prosecution has overcome its burden to rebut the presumption, by clear and convincing evidence, that [LWOP] is a disproportionate sentence.” It concluded here that defendant was entitled to resentencing because the trial court was not operating within that framework in this case. The court denied leave to appeal in all other respects because it was not persuaded it should review the remaining questions presented. It denied the motion to remand as moot. Dissenting, Justice Viviano reiterated, for the reasons stated in his dissent in Taylor, that he did not believe there is a presumption that LWOP “is a disproportionate sentence or that the prosecution is required to rebut this presumption in order for a court to impose” this sentence on a defendant who was under 18 when the crime was committed. Thus, he disagreed that defendant was entitled to resentencing. He “would remand to the trial court for an evidentiary hearing on defendant’s ineffective assistance of counsel claim.”
Sentencing for first-degree murder for a crime committed when defendant was a juvenile; Miller v Alabama; Burden of proof; People v Taylor; Life without parole (LWOP)
In an order in lieu of granting leave to appeal, the court vacated Part II of the Court of Appeals judgment (see e-Journal # 73341 in the 7/2/20 edition), vacated defendant’s sentence, and remanded to the trial court for resentencing. The court held in Taylor that a trial “court may not impose a sentence of life without parole on a defendant who was under 18 years of age at the time of his crime unless the prosecution has overcome its burden to rebut the presumption, by clear and convincing evidence, that life without parole is a disproportionate sentence.” It concluded here that defendant was entitled to resentencing because the trial court was not operating within that framework in this case. The court denied leave to appeal in all other respects because it was not persuaded it should review the remaining question presented. Concurring in part and dissenting in part, Justice Viviano reiterated, for the reasons stated in his dissent in Taylor, that he did not believe there is a presumption that LWOP “is a disproportionate sentence or that the prosecution is required to rebut this presumption in order for a court to impose” this sentence on a defendant who was under 18 when the crime was committed. Thus, he disagreed that defendant was entitled to resentencing. He concurred in the denial of leave in all other respects.
Resentencing for first-degree murder for a crime committed when defendant was a juvenile; Miller v Alabama; Burden of proof; People v Taylor; Life without parole (LWOP)
In an order in lieu of granting leave to appeal, the court reversed Part V of the Court of Appeals judgment (see e-Journal # 77053 in the 3/8/22 edition), vacated Part III of that judgment, vacated defendant’s sentence, and remanded to the trial court for resentencing. The court held in Taylor that a trial court may not impose a LWOP sentence “on a defendant who was under 18 years of age at the time of his crime unless the prosecution has overcome its burden to rebut the presumption, by clear and convincing evidence, that [LWOP] is a disproportionate sentence.” It concluded here that defendant was entitled to resentencing because the trial court was not operating within that framework in this case. The court denied leave to appeal in all other respects because it was not persuaded it should review the remaining questions presented. Concurring in part and dissenting in part, Justice Viviano reiterated, for the reasons stated in his dissent in Taylor, that he did not believe there is a presumption that LWOP “is a disproportionate sentence or that the prosecution is required to rebut this presumption in order for a court to impose” this sentence on a defendant who was under 18 when the crime was committed. Thus, he disagreed that defendant was entitled to resentencing. He concurred in the denial of leave in all other respects.
In an order in lieu of granting leave to appeal, the court vacated Part II of the Court of Appeals judgment (see e-Journal # 63674 in the 10/11/16 edition), vacated defendant’s sentence, and remanded to the trial court for resentencing. The court held in Taylor that a trial court may not impose a LWOP sentence “on a defendant who was under 18 years of age at the time of his crime unless the prosecution has overcome its burden to rebut the presumption, by clear and convincing evidence, that [LWOP] is a disproportionate sentence.” It concluded here that defendant was entitled to resentencing because the trial court was not operating within that framework in this case. The court denied leave to appeal in all other respects because it was not persuaded it should review the remaining questions presented. Concurring in part and dissenting in part, Justice Viviano reiterated, for the reasons stated in his dissent in Taylor, that he did not believe there is a presumption that LWOP “is a disproportionate sentence or that the prosecution is required to rebut this presumption in order for a court to impose” this sentence on a defendant who was under 18 when the crime was committed. Thus, he disagreed that defendant was entitled to resentencing. He concurred in the denial of leave in all other respects.
Sentencing; Physical presence during sentencing; People v Anderson; Habitual offender enhancement; Notice; MCL 769.13; People v Head; Scoring of OVs 8, 10 & 14; Consecutive sentencing; People v Norfleet; Cruel or unusual punishment; Presentence investigation report (PSIR)
Concluding that defendant-Wimberly did not identify any errors involving his resentencing that warranted relief, the court affirmed the trial court’s judgment of sentence. He argued, among other things, that “the trial court erred when it had him appear by video at his resentencing hearing.” The court noted that he “appeared by video, but the record showed that he had every opportunity to raise his sentencing issues to the trial court. The prosecutor submitted a sentencing memorandum to the court that outlined all of her positions, and Wimberly’s lawyer submitted her own memorandum in opposition. Moreover, the transcripts of the sentencing hearing showed that Wimberly’s lawyer was fully prepared for the hearing. She addressed corrections that needed to be made to the [PSIR] and the proper scoring of the OVs, and she argued at length against the prosecution’s suggested scores. She also consulted with Wimberly off the record and argued against ordering consecutive sentences. The trial court further gave Wimberly an opportunity to allocute and—similar to his first sentencing hearing—he asserted his innocence and implied that he was the real victim.” On this record, the court concluded “there was not ‘a reasonable probability that, but for the error, the outcome of the proceeding would have been different.’” Accordingly, reversal was not warranted on this basis. As to his habitual offender enhancement, he failed to identify “any prejudice occasioned by the prosecutor’s failure to file the proof of service[.]” The court also held that the trial court did not err in scoring OVs 8 and 10 at 15 points, and OV 14 at 10 points. Finally, it upheld his consecutive sentences and rejected his cruel or unusual punishment claim.
Whether intrastate use of a cell phone and automobile constitute “instrumentalities of interstate commerce” for purposes of the federal kidnapping statute; 18 USC § 1201(a)(1); United States v Protho (7th Cir); United States v Weathers; Factual basis for a guilty plea; Whether defendant’s guilty plea was “knowing” & “voluntary”; FedRCrimP 11(b)(3)
In an issue of first impression in this circuit, the court held that a defendant’s intrastate use of a cell phone and automobile satisfies § 1201(a)(1)’s interstate commerce requirements for purposes of the federal kidnapping statute. Defendant-Windham pled not guilty to federal kidnapping, then changed his plea to guilty. He challenged the sufficiency of the factual basis for his plea, arguing on appeal that there was insufficient evidence on the record that he held the victim “for ransom, reward, or otherwise.” The court disagreed, noting that for the kidnapping statute to apply, a person can be held “‘not only for reward, but for any other reason.’” Because Windham admitted in his plea agreement that he and his accomplices kidnapped the victim and “repeatedly demanded money from him,” this was “more than sufficient” to satisfy the statute. As to whether he made use of instrumentalities of interstate commerce, the court agreed with the Seventh Circuit’s decision in Protho that “it’s the nature of the regulated object’s class” (cell phones and automobiles in this case) and not “the particular use of one member of that class” that is decisive. Windham also claimed that his guilty plea was not knowing and voluntary. He asserted he thought he was charged with two substantive crimes (federal kidnapping and aiding and abetting) and that he was pleading to aiding and abetting rather than kidnapping. The court found that “his argument borders on frivolous.” The record showed that he was only ever charged with one crime, federal kidnapping, and that he “was well aware of, and understood, the charges against him. The district court did not err in accepting his guilty plea.” Affirmed.
Rescission of a no-fault insurance policy; Meemic Ins Co v Fortson
The court vacated the trial court’s orders granting summary disposition in favor of plaintiff-Encompass Indemnity Company (Encompass) and third-party defendant-Sweet Insurance Agency and remanded for reconsideration in light of the Supreme Court’s intervening decision in Meemic. Defendant-Fox contended that, “under Meemic, the trial court’s ruling must be vacated because, at most,” his parents, defendants-Jon and Joyce, “engaged in postprocurement fraud that cannot support the rescission of a no-fault PIP policy.” In Meemic the Supreme Court noted that the No-Fault Act “does not provide a fraud defense to PIP coverage, so Meemic could not assert a statutory defense to avoid mandatory coverage.” The court noted that “the Supreme Court considered whether Meemic’s fraud defense was available at common law.” Encompass relied in this case “on its antifraud policy provision to void the Foxes’ insurance policy.” Fox argued that “even assuming that he or his parents made affirmative false representations related to the policy coverage, these representations did not involve the procurement of the original no-fault policy with Encompass or the renewal of the policy on” 4/26/18. At most, Fox asserted, “a court could find that Jon and Joyce engaged in postprocurement fraud, which would not provide Encompass with a basis for voiding the no-fault policy.” Encompass responded that “Jon and Joyce made material misrepresentations when entering into the renewal policy, and given that the policy renewal created a new contract, Encompass’s rescission of the policy was not based on postprocurement fraud.” Fox and Encompass disputed “the effect of Meemic, i.e., whether the alleged misrepresentations constituted preprocurement or postprocurement fraud, and thus whether Encompass could rescind the policy. In deciding the question, the trial court will have to consider the effect of the [4/26/18] renewal policy and whether this constitutes a new and separate contract.”
Premises liability; The Governmental Tort Liability Act; Governmental immunity; The proprietary function exception (MCL 691.1413); Coleman v Kootsillas; Elia Cos, LLC v University of MI Regents; “Profit” distinguished from “revenue”
Holding that the evidence showed defendant-MCC was not engaged in a proprietary function in operating the Sports & Expo Center where plaintiff-Green tripped, the court affirmed summary disposition for MCC based on governmental immunity. While attending an event at the Center, plaintiff “‘tripped over a plastic cover placed over several electrical cords’ as she approached” a display area. In summarily dismissing her premises liability claim, the trial court heavily relied on the proprietary function analysis in Elia Cos. “The general activity involved in this case was the operation of the Sports & Expo Center, just as the general activity in Elia Cos was the operation of the student union. MCC made some revenue by renting the center out for private events, just as the University of Michigan made some revenue by renting space out in its student union to private vendors. This minor money-making venture did not change the overall use of the facility.” And the court found that contrary to plaintiff’s assertion, “MCC did not present inconsistent evidence on this point.” In addition, noting the definitions of the words profit and revenue, the court determined that “MCC did not actually make a ‘profit’ by renting out the center for private events; it merely generated ‘revenue’ that was used to off set costs.” The evidence showed that although “the costs of private events are covered by the charges paid by the customer, the revenues from these events do not cover the expenditures of running the Sports & Expo Center. For at least the five years leading up to Green’s fall, MCC had not made a profit from the center. The funds transferred into MCC’s coffers were not profits.” MCC operated the center at a loss year after year. It “continued to maintain its sports and physical education programs that comprised a significant majority of the building’s use despite that they produced no profit. As a result, according to the financial records produced during discovery, the center was chiefly operated on state appropriations, property tax allocations, and tuition payments.”
Termination under §§ 19b(3)(c)(i) & (j); Reasonable reunification efforts; Child’s best interests
Holding §§ (c)(i) and (j) existed, DHHS made reasonable reunification efforts, and termination of respondent-mother’s parental rights was in the child’s (KAR) best interests, the court affirmed. It found that the trial court did not clearly err when it held that § (c)(i) was established. “The child was placed in foster care after his legal guardian died of a drug overdose in” 11/18. Respondent was not a suitable caretaker for KAR at that time “because she was using illegal drugs and lacked suitable housing. The child remained in foster care for three years while respondent sporadically participated in services and failed to overcome her drug addiction, testing positive for cocaine just weeks before the termination hearing.” Thus, the trial court “did not err by finding that clear and convincing evidence demonstrated that the conditions that led to adjudication continued to exist and that there was no reasonable likelihood that the conditions would be rectified within a reasonable time considering the child’s age.” The trial court also did not err when it held that § (j) existed “because clear and convincing evidence established that the child is likely to be harmed if reunified with respondent.” She placed “KAR in a guardianship shortly after the child was born. At the best-interests hearing, respondent explained that KAR’s guardian mentally and physically abused her, causing her to leave the relationship. Nonetheless, respondent left KAR in the guardian’s care for eight years. Shortly before her parental rights were terminated, respondent moved to Oklahoma although the child remained in foster care in Michigan. The person” respondent moved to Oklahoma with had lost her parental rights to her children. Further, “respondent’s failure to participate in and benefit from a service plan is evidence that the child will be harmed if returned to” her care.
Children’s best interests; MCL 712A.19b(5); In re White; In re Olive/Metts Minors; Reasonable reunification efforts; Waiver
The court held that respondents, via their unchallenged pleas, waived any claim of error as to the reasonableness of the DHHS’s reunification efforts. It also held that a preponderance of the evidence established that terminating their parental rights was in the children’s best interests. Thus, it affirmed the termination order. The court noted they both “entered pleas of admission and stipulated that statutory grounds existed to support termination of their parental rights. They elected to proceed to a contested hearing regarding the children’s best interests. Neither respondent claims any irregularity with the plea process, nor have they ever sought, even on appeal, to withdraw their pleas.” As to the children’s best interests, the court concluded overwhelming evidence supported “the trial court’s finding that the children would be at risk of harm in respondents’ care. CS and LS were in-home court wards for six months in 2014. During this time, respondents were provided with services to improve their parenting skills and address domestic violence, mental health, and substance abuse issues. When the children were removed from respondents’ home in 2017, respondents were again provided a multitude of services designed to remove these same barriers to reunification.” Nonetheless, following “four years of services and court oversight, respondents were in no better position to parent their children than when they were removed from” their care early in 2017. Meanwhile, “the children were thriving in their separate foster homes and both sets of foster parents had expressed a willingness to adopt the child in their care. Further, the foster families had facilitated sibling visits between CS and LS and indicated that they would continue to do so if parental rights were terminated.” In addition, the trial court did not clearly err in finding any parent-child “bond that existed did not outweigh the children’s need for a safe and stable home where their needs were being met.” The court concluded termination “was the only avenue by which to ensure that the children’s needs would be met and that” they would have finality, permanency, and stability.