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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Sentencing; Scope of remand; Challenge to the imposition of lifetime electronic monitoring (LEM); Effect of vacating a sentence & remanding for resentencing; People v Rosenberg
In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 77271 in the 4/26/22 edition) that declined to address defendant’s challenges to the trial court’s imposition of LEM in his resentencing as beyond the scope of its prior remand. The court noted that on his “first appeal, the Court of Appeals did not merely remand to the trial court with instructions to correct a scoring error for Offense Variable 7; rather, it vacated the original sentence and remanded for resentencing. By vacating the defendant’s original sentence and remanding for resentencing, ‘the case was before the trial court in a presentence posture, allowing for objection to any part of the new sentence.’” As a result, when the trial court reimposed LEM on resentencing, “defendant was free to raise his challenges to this part of the sentence on an appeal of right.” The court remanded the case to the Court of Appeals to consider his issues challenging the imposition of LEM.
Sufficiency of the evidence; Possession with intent to deliver; Knowing possession with intent to deliver
Finding sufficient evidence to support defendant’s possession of a controlled substance less than 50 grams with intent to deliver and possession of meth with intent to deliver, the court affirmed. At the residence on Union Street, his “personal items were discovered comingled with the drugs.” They included his “identification cards and court papers. The presence of defendant’s personal items stored alongside the drugs in a padlocked bedroom is circumstantial evidence that creates a reasonable inference that [he] possessed what was stored inside the locked room, including the drugs.” Given the totality of the circumstances, the court held that the prosecution “presented sufficient evidence for the trial court to find that there was a sufficient nexus between defendant and the drugs found at the Union Street residence for purposes of possession.” As to the drugs found at the residence on Jackson Street, his “statements made on the telephone while in jail similarly show circumstantial evidence that creates a reasonable inference that defendant had possession over the drugs found inside the shed. During telephone calls, he referred to the drugs as ‘his sh**’ or ‘his stuff.’” While he did not explicitly refer “to the drugs by name, it was clear from the context of defendant’s predicament and the recordings themselves that [he] was referring to illegal drugs.” Thus, the court concluded that the prosecution presented sufficient evidence “that defendant possessed the drugs found in the shed at the Jackson Street residence.” As to the intent to deliver, the court noted that in “the padlocked bedroom at the Union Street residence, where defendant stored his personal items, law enforcement found several bags of illegal substances in amounts larger than that for personal use; amounts commonly associated with drug trafficking. Some of the bags were packaged such that there were multiple smaller bags of drugs in one larger bag. According to trial testimony, this is a packaging method commonly associated with drug trafficking. Law enforcement also found a scale and unused packaging materials at Union Street, which are items necessary to independently package drugs.” Further, during a search of the Jackson Street residence, “drugs were found in amounts commonly associated with drug trafficking. Moreover, not a single item consistent with personal use, such as a needle or pipe, was discovered at either residence.” Thus, the totality of the circumstances supported “a reasonable inference that defendant possessed the drugs found at Jackson Street and Union Street with the intent to deliver.”
Sentencing; Enhancement for prior serious drug felonies; 21 USC § 841(b)(1)(A)(viii); The procedure for imposing conviction-based statutory sentence enhancements under § 841; § 851; Fifth Amendment challenge to § 851(b); Constitutionality of § 851(c) under the Sixth Amendment; Whether the district court followed § 851 procedure; “Serious drug offense” defined; 18 USC § 924(e)(2)(A)(ii)
In an amended opinion (see e-Journal #77939 in the 8/25/2022 edition for the original opinion) the court again held that because defendant-Fields never asserted his Fifth Amendment right not to incriminate himself during the colloquy for his § 841 sentence enhancement, his claim the requirement that he admit or deny his prior convictions violated the Fifth Amendment failed. It also held that “the district court’s application of § 851 did not produce a Sixth Amendment violation.” But it concluded that one of the prior state felonies used to enhance his sentence did not qualify as a “serious drug offense” and thus, could not “serve as a ‘serious drug felony’ for purposes of” his 25-year mandatory minimum enhancement. Thus, the court affirmed in part, reversed in part, vacated his sentence, and remanded for resentencing.
Whether defendant-Township’s Guidelines violate the Local Government Labor Regulatory Limitation Act (LGLRLA); MCL 123.1386
The court held that local “governments may contract with bidders who pay a prevailing wage and may consider wage levels when deciding which bid to accept as to a particular contract, but they may not, as [the Township] has done, adopt a blanket policy effectively barring bid awards to companies that do not pay prevailing wages.” Thus, it concluded the Township’s Guidelines violate MCL 123.1386, and affirmed the trial court’s determination that the “Guidelines fall within the scope of the LGLRLA’s prohibitions.” The case arose from the Township adopting “‘Guidelines’ that require employers working on Township contracts to pay ‘prevailing wages’ and fringe benefits.” The appeal turned on the interpretation of the LGLRLA. The court held that “regardless of nomenclature, the ‘Guidelines’ violate MCL 123.1386.” The Township’s claim that the “LGLRLA applies only to regulations is contrary to MCL 123.1386’s unambiguous language that includes local policies and resolutions within its prohibition. If there was any doubt on that matter, MCL 123.1395 further establishes that MCL 123.1386 applies to policies setting the terms and conditions of a local government’s own contracts. MCL 123.1386 does not prohibit local governments from entering into contracts with prevailing-wage provisions, so long as those provisions are not required by an ordinance, policy or resolution.” However, here, the Township “formally adopted a policy requiring all employers working on Township contracts to pay prevailing wages. That action cannot be squared with the statutory language.”
Requests for sole custody & change of domicile; Request for a de novo hearing on the referee’s findings; MCL 552.507(4) & (5); MCR 3.215(F)(2); Butters v Butters
The court concluded that the trial court erred when it denied plaintiff-Rene-Pollard’s request for a de novo hearing on the referee’s findings. Thus, it vacated the order adopting with modification the referee’s findings and recommendations and denying her requests for sole custody and a change of domicile, and remanded for the trial court to hold a de novo hearing. The trial court conducted a hearing on plaintiff’s objections. It “asked whether the parties had any evidence that they ‘were not able to present at the time of the hearing[.]’ Plaintiff responded that the only witness she was unable to present during the referee’s hearing was an ‘expert on domestic abuse,’ claiming the referee refused to admit the expert’s testimony because of time restraints.” The proposed expert, S, “was purportedly relevant to plaintiff’s argument that she be awarded sole legal custody of the children.” At the hearing, the trial court did not grant or deny her request to present S, “stating it would review the record involving the proposed expert to determine whether it was necessary to take” S’s testimony. It later “issued its order adopting the referee’s recommendations without holding another hearing.” In the order, the trial “court stated it ‘review[ed] the recommendation de novo and finds that the referee conducted an exhaustive hearing where the parties were each able to present their desired evidence.’” It was unclear to the court “how the trial court arrived at this conclusion. Plaintiff explicitly objected to the referee’s recommendation because she was not permitted to offer [S’s] testimony.” The court held that assuming “the trial court did not simply overlook the issue and, in fact, meant to deny plaintiff’s request to present [S’s] testimony at a de novo hearing, . . . the trial court’s discretion to deny a party the right to present testimony at such a hearing is not unlimited under MCR 3.215(F)(2).” Plaintiff objected to the referee’s findings as to “the issue of custody of the children; thus, MCR 3.215(F)(2)(a) and (b), which allow the court to disallow presentation of new evidence and adopt recommendations without a hearing when no objection is made, do not apply.” Further, the record showed that “plaintiff was prepared to offer [S’s] testimony to the referee but could not. Therefore, there was an ‘adequate showing that the evidence was not available at the referee hearing.’” The court concluded to “the extent the trial court denied plaintiff’s request to hold a de novo hearing and present [S’s] testimony because it sought to ‘impose any other reasonable restrictions and conditions to conserve the resources of the parties and the court,’” it could not affirm “on this basis without explicit findings as to why the [trial] court believed such a decision was ‘reasonable’ under the circumstances.” The court retained jurisdiction.
Action by a healthcare provider seeking personal protection insurance (PIP) benefits; MCL 500.3112; Whether a healthcare provider may pursue a reimbursement claim against an insurer where it transferred its interests in the debt to factoring companies before filing suit; Statutory standing; Miller v Allstate Ins Co; Real party in interest; MCR 2.201(B)(1); Hofmann v Auto Club Ins Ass’n; Necessary joinder; MCR 2.205(A); DeLong v Marston; Effect of shifting assignments; Comparing Cannon Twp v Rockford Pub Schs, Hess v Eddy (11th Cir), & DeVries v Weinstein Int’l Corp (D MN); FedRCivP 17; Purpose of the court rules; MCR 1.105
Holding that the counter-assignments and purchase agreement amendments at issue permitted plaintiff-healthcare provider to maintain its causes of action against defendant-insurer, the court reversed the trial court’s contrary judgment and remanded. Plaintiff sought PIP benefits for services it provided to defendant’s insureds after their auto accident. Before filing suit, plaintiff entered into assignment agreements with several factoring companies. After the suit was filed, those companies signed counter-assignments and purchase agreement amendments, reinvesting plaintiff with the right to bring suits for payment of outstanding balances. The trial court granted summary disposition for defendant finding plaintiff lacked standing when the complaints were filed. On appeal, the court held that standing “is not a barrier to [plaintiff’s] case because MCL 500.3112 grants [it] the right to ‘assert a direct cause of action against an insurer . . . to recover overdue benefits payable for charges for products, services, or accommodations provided to an injured person.’” The real-party-in-interest rule also did not preclude its suit. Plaintiff “is authorized by statute to bring a first-party no-fault claim, and the plain language of the court rule permits it to do so despite that the action was brought for the benefit of the factoring companies, or for the joint benefit of” plaintiff and those companies. Plaintiff “is ‘vested with the right of action’ against [defendant] based on the assignments from the [insureds], and is ‘authorized by statute’ to sue in its own name under the plain language of MCL 500.3112. That the ‘beneficial interest’ resided with the factoring companies did not eliminate” plaintiff as a real party in interest. Further, “when the factoring contracts surfaced, [plaintiff] and its factoring creditors voluntarily entered into counter-assignments and purchase agreement amendments transferring the ‘beneficial interest’ in the” insureds’ no-fault claims back to plaintiff. “Those contracts eliminated any risk that [defendant] would pay twice for the same benefit claims.” The court found Cannon Twp controlling and noted that its “approach to the shifting assignments in this case also tracks that of the federal courts applying FR Civ P 17, which uses precisely the same language as MCR 2.201(B).” Finally, the court noted that defendant’s insistence that plaintiff’s “failure to obtain the counter-assignments before filing suit dooms its claims not only affords [it] a potential windfall, but contravenes our court rules’ animating spirit.” Practically speaking, plaintiff “was a real party in interest without the counter-assignments, and eliminated any risk of double recovery by entering into them.”
Priority of coordinated no-fault & health insurance policies; MCL 500.3109a; Treatment of self-funded ERISA health plans; Auto Club Ins Ass’n v Frederick & Herrud, Inc (After Remand); Citizens Ins Co of Am v MidMich Health ConnectCare Network Plan (6th Cir); Coordination of benefits (COB) clause; Employee Retirement Income Security Act (ERISA)
Concluding that further discovery was needed in this case involving the priority of coordinated no-fault and health insurance benefits, the court vacated the order granting defendant-no-fault insurer (MEEMIC) summary disposition, and remanded. MEEMIC’s insured, nonparty-B, was injured in an auto accident. She “received a discounted rate by coordinating her no-fault benefits with her health insurance coverage.” The MEEMIC policy contained a COB clause. B was also covered at the time of the accident by “a self-funded health benefit plan through her employer—Marriott International. Early in the proceedings, MEEMIC identified Empire Blue Cross Blue Shield (BCBS) as administrator of the plan.” B received physical therapy services from plaintiff-healthcare provider after the accident and executed an assignment of rights for payment. The court noted that this “case should have been a straightforward application of contract language to the facts. However, neither [B], Marriott, nor BCBS were parties in this matter, leading to discovery issues. Further, discovery in [B’s] separate action involving MEEMIC and the Marriott ERISA plan administered by BCBS bled into this action at inopportune times. The result” was that neither the trial court nor the court “were provided the actual language of the Marriott ERISA plan or the Empire BCBS policy. Further, we cannot be certain which BCBS policy actually applied to [B]: Empire BCBS or BCBS Blue. BCBS’s position on coverage is unclear. And any errors made in this case might” impact B’s separate lawsuit. The court found that the trial court on remand must allow further discovery. “The parties should obtain the complete Marriott plan document and depose an appropriate plan representative to determine the name of the correct healthcare policy applicable at the time of [B’s] accident. If the applicable policy includes a COB provision that permits the insured to designate the ERISA plan as primary, the parties should inquire” as to the mechanics of that procedure. They should discover if B “contemporaneously notified BCBS in writing that she had elected coordinated coverage under her MEEMIC policy[.]” The court added the trial “court must also be cognizant that this case involves a health benefit plan self-funded by Marriott that includes a health insurance policy administered by BCBS.”
Ineffective assistance of counsel; Failure to consult or call an expert witness; Potential significance of expert testimony in child-sexual-abuse cases; People v Peterson; Hearing under People v Ginther; The trial court’s credibility assessments; Vouching; Prejudice; People v Ackley
Holding that respondent-father was denied the effective assistance of counsel, the court vacated the trial court’s ruling admitting his child’s (BC) tender-years statements, the order of adjudication, and the order of termination. It remanded “for new proceedings, including a new tender-years hearing should” the DHHS again seek to admit BC’s out-of-court statements. Respondent contended an expert in forensic interviewing, child memory, and suggestibility should have been obtained. At the Ginther hearing, he offered the expert report and testimony of a clinical psychologist (Dr. S) as well as testimony from an attorney (K) “who specializes in child-abuse and child-sexual-assault cases[.]” The court concluded that “the trial court erred in a key respect when it determined after the Ginther hearing that the views of” S and K did not have sufficient credibility or weight. Both “reviewed only the materials that would have been available to them had they been engaged just prior to the adjudication trial.” In addition, the court found the record showed an expert who testified at the trial, Dr. H, “impermissibly vouched for” BC’s credibility, and the entire case rested “the credibility and reliability of BC’s disclosures.” The court further noted that “trial counsel stipulated to the admission of the report in its entirety and offered no specific objection with respect to [H’s] opining on” BC’s credibility. While trial counsel testified at the Ginther hearing that it was her strategy to try “to show that BC’s disclosures were not credible and were” the product of coaching by his mother, “counsel did not investigate—or even consider investigating—an expert who could have provided valuable information on child memory, suggestibility, source misattribution, and forensic-interview protocols, all of which would have been materially useful to supporting the defense’s theory and assisting a fact-finder’s assessment of BC’s disclosures.” The court found it particularly concerning that “trial counsel testified that she was not aware of such experts being used in child abuse-and-neglect cases.” The court held that “particularly given BC’s young age—only four and five years old—when he began making disclosures and undergoing forensic interviews, [S’s] expertise on child memory and suggestibility establishes a reasonable probability of a different outcome had counsel exercised reasonable professional judgment in investigating and presenting expert testimony to support the defense’s theory of the case.”
Reasonable reunification efforts; Notice of the adjudication hearing; Lawyer-guardian ad litem (LGAL)
The court held that DHHS made reasonable reunification efforts. Also, the record did not support respondent-father’s contention that he was not properly served with notice of the adjudication hearing. Thus, he failed “to establish that his due-process rights were violated or that he is entitled to relief under plain-error review.” Respondent failed “to adequately explain how DHHS could have better accommodated his mental health diagnoses.” He also did “not establish that he would have fared better had additional efforts been made.” He further contended “on appeal that his work schedule and transportation issues prevented him from attending parenting sessions. However, throughout the case DHHS caseworkers testified that they were careful to work around respondent’s schedule.” Accordingly, the court was “not left with a definite and firm conviction that the trial court erred when it determined that DHHS made reasonable efforts to reunify respondent” with his child. As to his notice claim, his “attorney was present for the adjudication and did not dispute the trial court’s statement that respondent was present for the preliminary hearing and properly served. Nor did the prosecutor, the mother’s attorney, or the [LGAL]. In addition, respondent was notified of the adjudication hearing via mail.” Affirmed.
Termination under § 19b(3)(c)(i); Children’s best interests; Jurisdiction; Distinguishing In re Mallett (Unpub)
Holding that § (c)(i) existed and termination of respondent-mother’s parental rights was in the children’s best interests, and finding no plain error in the trial court’s exercise of jurisdiction over them, the court affirmed. More “than 182 days had elapsed between the entry of the initial dispositional order in [5/21] and the date when the trial court ordered termination of respondent’s parental rights in [3/22]. At the outset of this case, respondent could not provide adequate housing for her children and she had substance-abuse issues.” The trial court found that she “failed to verify a legal source of income or any suitable housing by the time of termination, leaving petitioner unable to evaluate respondent’s progress in alleviating these barriers.” It also noted her “withdrawal from initial counseling and her subsequent failure to provide disclosures to petitioner. The trial court highlighted the significance of” her continued drug use. “Specifically—and even assuming that respondent’s positive results for amphetamines could be disregarded because of her purported, but not consistently verified, Adderall prescription—respondent tested positive for methamphetamines seven different times after being ordered to comply with the parenting plan.” Thus, based on her “drug use and failure to comply with the parenting plan, the trial court concluded that the conditions leading to adjudication continued to exist with no reasonable likelihood of change in the foreseeable future given the children’s ages and respondent’s conduct throughout the case.”