Judicial review of an administrative ruling; The substantial-evidence test; Lawrence v Michigan Unemployment Ins Agency; Credibility of witnesses; Michigan Employment Relations Comm’n v Detroit Symphony Orchestra, Inc; Michigan Occupational Safety & Health Administration (MIOSHA); Administrative Law Judge (ALJ); Board of Health & Safety Compliance & Appeals (the Board)

Noting that its holding was limited to whether the trial court applied the correct legal principles and substantial-evidence test to its review of the ALJ’s decision, after reviewing the record, the court was not left with a definite and firm conviction that the trial court erred in its findings. Respondent-MIOSHA issued a citation to petitioner for failing to train an employee (S) who died while operating a “bobcat”/skid steer. The ALJ vacated the citation, but the Board reinstated it. The trial court then reversed the Board’s decision. On appeal, the court found the trial court did not reversibly err. First, it was appropriate for the trial court “to consider that the ALJ was in the better position to judge the credibility of witnesses.” In addition, the trial court “specifically acknowledged its limited review, finding that the record did ‘not contain competent, material, and substantial evidence to support the Board’s view regarding the facts,’ and that a reasonable fact-finder could not find that” respondent’s investigator’s “testimony ‘was sufficient to support the conclusion that [S] did not receive adequate training.’” The trial court “properly reviewed the whole record, including the ALJ’s credibility determinations, to determine whether there was ‘competent, material, and substantial evidence on the whole record’ to support the Board’s decision.” Further, although a few comments by the trial court “could, when read in isolation, suggest a weighing of evidence, our review of [its] analysis as a whole confirms that it did not do so.” Finally, the trial court “found that there was not competent, material, and substantial evidence to support the Board’s inference that petitioner’s failure to document [S’s] training means [it] failed to show that training occurred.” And respondent did not point “to a requirement for such training to be documented.” Affirmed.

Federal Election Campaign Act; 52 USC § 30116; 11 CFR § 109.37; First Amendment challenge to the Act’s limits on coordinated campaign expenditures (restricting political parties from spending money on campaign advertising with input from the party’s candidate); FEC v Colorado Republican Fed Campaign Comm (Colorado II); Facial challenge; Effect of the Supreme Court’s recent campaign finance decisions; Effect of congressional changes to campaign finance laws; As-applied challenge

In an en banc response to a certified question, the court rejected plaintiffs’ First Amendment challenges to the constitutionality of the Federal Election Campaign Act’s limitations on coordinated campaign expenditures, based on the Supreme Court’s decision in Colorado II. In 2001, the Supreme Court held in Colorado II that the Federal Election Campaign Act’s limits on coordinated campaign expenditures restricting political parties from spending money on campaign advertising with input from the party’s candidate did not violate the First Amendment. Plaintiffs here argued that this decision was no longer viable considering the changing campaign-spending landscape. The court first considered whether the Act’s limits on coordinated party expenditures facially violate the First Amendment. Although they recognized the binding nature of Colorado II, plaintiffs argued that “recent campaign finance developments have undermined several aspects of the decision.” But the court noted that while there has been some “tension” between Colorado II and later cases, “Colorado II remains standing. Any shifts in reasoning do not shift the precedential terrain from our vantage point. The Supreme Court has never overruled the decision.” Plaintiffs also contended that Congress’s amendments to campaign finance laws “‘radically altered [the Act’s] nature and structure.[,]’” However, the fact that “Congress added three new exemptions—for party conventions, party headquarters, and election recounts—does not suffice to invalidate the Act’s limits on coordinated party expenditures under the more deferential form of review that applies to contribution limits. These changes to the Act simply do not suffice to alter the verdict of Colorado II.” Turning to plaintiffs’ as-applied challenge, the court noted that they wished “to be freed of all of the limits on coordinated party expenditures with respect to all ‘political advertising’ covered by the regulation. To honor that request would necessarily slight the reasoning of Colorado II and would leave little if any coordinated expenditures for that decision to cover. That simply is not the kind of as-applied challenge the Court left open for future litigants to bring.” Thus, the court answered the “certified question in the negative. The limits on coordinated party expenditures in § 315 of the Federal Election Campaign Act of 1971, as amended, . . . § 30116, do not violate the First Amendment, either on their face or as applied to party spending in connection with ‘party coordinated communications’ as defined in” § 109.37.

Contract breach; Application of usury laws; MCL 438.41; Whether a settlement agreement constituted a novation; Effect of the underlying agreement being invalid; Proper remedy; MCL 438.32; Whether appellate review was waived; Annual percentage rate (APR)

The court held that because the underlying agreement was invalid for violating the criminal usury statute, the alleged novation was invalid. But it concluded the trial court erred in ruling that defendants did not owe plaintiff anything. The proper remedy “was to extinguish the outstanding interest and apply any prior interest payments toward the principal.” This breach of contract action arose from a $30,000 loan plaintiff made to defendants. There was no dispute that the effective APR of the loan far exceeded “what is allowed by criminal usury statutes.” The parties later entered into a settlement agreement “intended ‘to settle on the amount owed and the terms of repayment.’” Plaintiff filed this action to enforce that agreement. The trial court granted defendants summary disposition, agreeing “that the loan underlying the settlement agreement charged illegal interest and was invalid, and thus that the settlement neither novated the debt nor waived defendants’ rights, claims, or defenses regarding the usury. Refusing to enforce the usurious settlement agreement as contrary to public policy, [it] awarded ‘no sums from Defendants.’” Plaintiff argued the trial court erred in applying usury laws because “the settlement agreement was a novation and therefore discharged the underlying loan and any accompanying defenses to its repayment.” The court disagreed, noting the elements required “to establish novation are: (1) parties capable of contracting; (2) a valid prior obligation to be displaced; (3) the consent of all parties to the substitution, based upon sufficient consideration; and (4) the extinction of the old obligation and the creation of a valid new one.” It found plaintiff could not “establish element two because the prior obligation, being in violation of criminal usury laws, was invalid.” While plaintiff suggested “the underlying agreement was valid because usury is a ‘defense’ that” defendants failed to raise, it cited no supporting authority for “this bizarre assertion, and it is well established that courts cannot enforce agreements that violate law or public policy.” However, while the trial “court properly extinguished the interest, it erred by wholly releasing defendants from the debt.” Affirmed in part, reversed in part, and remanded.

Criminal contempt for violating a personal protection order (PPO); ARM v KJL; Standard of proof; Notice that the proceeding was criminal in nature; Sufficiency of the evidence

The court held that (1) the trial court applied the correct standard of proof, (2) defendant had sufficient notice it was a criminal proceeding, and (3) there was sufficient evidence he violated the PPO. Thus, it affirmed the trial court’s decision finding him in criminal contempt for violating the PPO. “Petitioner and respondent were previously involved in a relationship.” Petitioner obtained an ex parte PPO prohibiting respondent from contacting petitioner by phone “or ‘posting a message through the use of any medium of communication, including the Internet or a computer or any electronic medium.’ The PPO informed respondent that a violation would subject him to various potential penalties, including ‘immediate arrest’ and the ‘civil and criminal contempt powers of the court.’” He was accused of violating the PPO after, at about 2 a.m. “petitioner received a Snapchat message from respondent, which stated, ‘Morning [kiss face emoji] stop by sometime before this gets much more out of control.’” Respondent first asserted “the trial court applied an incorrect preponderance-of-the-evidence standard of proof.” But the court noted the trial court “indisputably and correctly made its finding beyond a reasonable doubt. Although the prosecutor mistakenly referred to the preponderance-of-the-evidence standard in closing argument, the trial court explicitly stated that it found that the evidence showed ‘at a level of proof beyond a reasonable doubt which is the standard of proof in a case of this matter.’” And its written order indicated it “found respondent guilty of criminal contempt beyond a reasonable doubt.” The court also rejected his argument that it should reverse his “conviction on procedural grounds because the prosecutor thought that the case was a civil matter.” In addition to the warnings in the PPO, during the continued hearing on his motion to terminate it, held before the violation hearing, the trial court informed him “he had been accused of a ‘criminal violation,’ and the violation could result in up to 93 days of incarceration.” Finally, as to the sufficiency of the evidence, the “parties’ past relationship and communications through Snapchat, the content and timing of the message, and petitioner’s testimony that the message appeared as a continuation of earlier messages between them support the trial court’s findings.”

Ineffective assistance of counsel; Stipulation to admission of a sexual assault nurse examiner (SANE) report; Confrontation Clause violation; Prejudice; MRE 803(4) (statements made for purposes of medical treatment or diagnosis); People v Meeboer; Failure to object to impeachment of a defense witness with prior crimes; MRE 609; Sentencing; Scoring of OVs 3 & 19; MCL 777.33(1)(e); MCL 777.49(c)

While the court found there was a Confrontation Clause violation, it held that even if it assumed defense counsel was deficient in this regard, defendant could not show prejudice. He also could not establish prejudice related to his claim defense counsel was ineffective for failing to object to impeachment of a defense witness with prior crimes. Further, the trial court did not err in scoring 5 points for OV 3 and 10 points for OV 19 in sentencing him. Thus, it affirmed his CSC I conviction and his sentence to 13 to 30 years as a third-offense habitual offender. The exam was conducted by a physician’s assistant (P) who did not testify. Her supervisor (S) testified, relying on P’s report. The court found that S’s testimony about the SANE report violated the Confrontation Clause. It determined P’s “statement (i.e., the report), as opposed to the victim’s statements contained within the report, was testimonial.” But, assuming without deciding a deficiency on defense counsel’s part, defendant could not show “prejudice for three reasons. First, the objection would not necessarily have kept out the content of [P’s] report. The most likely outcome of such an objection is that the trial (or [P’s] testimony) would be rescheduled to a date when [P] was available for in-person testimony and cross-examination. Second, it” was not clear P “testifying about her own observations and interaction with the victim would benefit” defendant. He did not point to any “credibility issues or other differences between [P] and [S] that would lead to a different outcome. Third, although [P’s] description of the victim’s statements provided a clearer description of the penetrative nature of the sex act at issue . . . than the victim’s other prior statements, if [P] had been available to testify, her recollection of the victim’s statements would still have been admissible.” This issue overlapped with defendant’s argument the report was not admissible under MRE 803(4), which the court rejected. The SANE exam took place “hours after the sexual assault.” The victim went to the exam right after she was discharged “from the hospital. This followed her doctor’s referral for continuation of care that otherwise would have happened at the hospital.” Thus, her statements were admissible under MRE 803(4). The court further found that the evidence of defendant’s guilt was “sufficiently strong that removing the SANE report from the body of evidence would not yield a different result.”

Other acts evidence regarding the sexual abuse of a minor; Waiver; Notice of intent to use other acts evidence; MCL 768.27a(1); People v Hawkins; Unfair prejudice; MRE 403; People v Pattison; Ineffective assistance of counsel; Failure to make a futile objection; Prosecutorial misconduct; Arguing reasonable inferences; Vouching; Sentencing; Life without parole (LWOP); Proportionality; Cruel or unusual punishment; People v Brown

The court held that the trial court did not err by admitting other acts evidence, that the prosecutor’s statements did not warrant reversal, and that defendant’s LWOP sentence was proportional and did not constitute cruel or unusual punishment. He was convicted of CSC I and II for sexually abusing the victim when she was about four years old. The trial court sentenced him as a second-offense habitual offender to 6 to 22½ years for each CSC II count, concurrent with a sentence of LWOP for CSC I. On appeal, the court rejected his argument that the trial court erroneously admitted other acts evidence because the prosecution never filed the required notice of intent to use such evidence under MCL 768.27a(1). As an initial matter, it found he waived any claim of evidentiary error as to the admitted “evidence because his trial counsel explicitly and unequivocally stated at trial that this evidence was something that jurors ‘absolutely . . . can consider.’” But his argument was meritless in any event. Here, as in Hawkins, defendant “provide[d] no argument of how he would have reacted or how this case would have proceeded differently without the error of notice he allege[d].” In addition, the evidence was properly admitted as his “three prior CSC convictions all involved similar conduct, the sexual assault of young female family members.” And the evidence was reliable. Further, because both of defendant’s claims were meritless, “his trial counsel was not ineffective for failing to object.” The court also rejected his contention that numerous instances of prosecutorial misconduct denied him a fair trial. “[W]hile the prosecutor made various troubling and improper statements, they do not warrant reversal when viewed in context. Further, any prejudice from these errors was cured by the trial court’s instructions to the jury.” Finally, the court rejected his argument that his LWOP sentence was disproportionate and constituted cruel or unusual punishment. His prior convictions “subjected him to the statutorily mandated sentence of [LWOP], which Brown previously ruled does not constitute cruel or unusual punishment under similar facts, and the trial court properly imposed such a sentence.” Moreover, he conclusively claimed “his statutorily mandated [LWOP] sentence was disproportionate without any substantive analysis of law or facts supporting this conclusion, and he thus has not met his burden to overcome the presumed proportionality of the sentence.” Affirmed.

Federal Election Campaign Act; 52 USC § 30116; 11 CFR § 109.37; First Amendment challenge to the Act’s limits on coordinated campaign expenditures (restricting political parties from spending money on campaign advertising with input from the party’s candidate); FEC v Colorado Republican Fed Campaign Comm (Colorado II); Facial challenge; Effect of the Supreme Court’s recent campaign finance decisions; Effect of congressional changes to campaign finance laws; As-applied challenge

In an en banc response to a certified question, the court rejected plaintiffs’ First Amendment challenges to the constitutionality of the Federal Election Campaign Act’s limitations on coordinated campaign expenditures, based on the Supreme Court’s decision in Colorado II. In 2001, the Supreme Court held in Colorado II that the Federal Election Campaign Act’s limits on coordinated campaign expenditures restricting political parties from spending money on campaign advertising with input from the party’s candidate did not violate the First Amendment. Plaintiffs here argued that this decision was no longer viable considering the changing campaign-spending landscape. The court first considered whether the Act’s limits on coordinated party expenditures facially violate the First Amendment. Although they recognized the binding nature of Colorado II, plaintiffs argued that “recent campaign finance developments have undermined several aspects of the decision.” But the court noted that while there has been some “tension” between Colorado II and later cases, “Colorado II remains standing. Any shifts in reasoning do not shift the precedential terrain from our vantage point. The Supreme Court has never overruled the decision.” Plaintiffs also contended that Congress’s amendments to campaign finance laws “‘radically altered [the Act’s] nature and structure.[,]’” However, the fact that “Congress added three new exemptions—for party conventions, party headquarters, and election recounts—does not suffice to invalidate the Act’s limits on coordinated party expenditures under the more deferential form of review that applies to contribution limits. These changes to the Act simply do not suffice to alter the verdict of Colorado II.” Turning to plaintiffs’ as-applied challenge, the court noted that they wished “to be freed of all of the limits on coordinated party expenditures with respect to all ‘political advertising’ covered by the regulation. To honor that request would necessarily slight the reasoning of Colorado II and would leave little if any coordinated expenditures for that decision to cover. That simply is not the kind of as-applied challenge the Court left open for future litigants to bring.” Thus, the court answered the “certified question in the negative. The limits on coordinated party expenditures in § 315 of the Federal Election Campaign Act of 1971, as amended, . . . § 30116, do not violate the First Amendment, either on their face or as applied to party spending in connection with ‘party coordinated communications’ as defined in” § 109.37.

Wrongful termination under the Whistleblowers’ Protection Act (WPA); MCL 15.362; Shallal v Catholic Soc Servs of Wayne Cnty; Protected activity; Henry v Detroit; “Public body”; MCL 15.361(d)(iii); Causal connection; Shaw v City of Ecorse; Legitimate non-discriminatory reason; Debano-Griffin v Lake Cnty Bd of Comm’rs; Pretext; The 90-day limitations period governing WPA actions; MCL 15.363(1); Judicial disqualification; MCR 2.003(B) & (C)(1)

The court held that (1) plaintiff-former firefighter established a genuine issue of material fact that he was both engaged in a protected activity and that defendant-township terminated him because of that activity, (2) his claim was not time-barred, and (3) he was not entitled to remand before a different judge. Plaintiff sued defendant for wrongful termination in violation of the WPA after he “reported various concerns to township leaders about problems within the fire department, the most serious of which involved the legitimacy of certain payments” the fire chief (R) made to his sons, who also worked for the fire department. The trial court granted summary disposition for defendant. On appeal, the court agreed with plaintiff that there remained genuine issues of material fact that he engaged in protected activity and that his protected activity caused his termination. It found “the trial court erred in its interpretation and application of the WPA. Contrary to the trial court’s stated reasoning, the evidence presented showed that [plaintiff] reported a suspected violation of law to a public body.” And because there was evidence supporting his “assertion that he reported the possible misappropriation of township funds, he was engaged in a protected activity under the WPA.” Because he “established that he was engaged in a protected activity and that there was a causal connection between his protected activity and his termination, the trial court legally erred by holding that he failed to establish a prima facie case under the WPA.” Further, the evidence “established a genuine issue of material fact that Chief [R’s] assertions about the reasons for his recommendation that [plaintiff] be terminated were mere pretext and that he was motivated to fire [him] because he reported his suspicious financial activity.” The court next rejected defendant’s claim that plaintiff’s claim was time-barred. Defendant officially terminated plaintiff at the 12/17/20 “fire board meeting, and he received a corresponding termination letter on” 12/20/20. As such, “he was required to file his action within 90 days of” 12/17/20. Given that “he filed his initial complaint on” 2/26/21, it was timely filed. The court disagreed with defendant’s assertion that R actually terminated plaintiff by text message on 10/9/20, “or that the text was at least a threat of termination that would constitute a violation of the WPA.” Finally, the court found plaintiff was not entitled to remand before a different judge, noting he could not establish a ground for judicial disqualification. Affirmed in part, reversed in part, and remanded.

Wrongful termination under the Whistleblowers’ Protection Act (WPA); MCL 15.362; Shallal v Catholic Soc Servs of Wayne Cnty; Protected activity; Henry v Detroit; “Public body”; MCL 15.361(d)(iii); Causal connection; Shaw v City of Ecorse; Legitimate non-discriminatory reason; Debano-Griffin v Lake Cnty Bd of Comm’rs; Pretext; The 90-day limitations period governing WPA actions; MCL 15.363(1); Judicial disqualification; MCR 2.003(B) & (C)(1)

The court held that (1) plaintiff-former firefighter established a genuine issue of material fact that he was both engaged in a protected activity and that defendant-township terminated him because of that activity, (2) his claim was not time-barred, and (3) he was not entitled to remand before a different judge. Plaintiff sued defendant for wrongful termination in violation of the WPA after he “reported various concerns to township leaders about problems within the fire department, the most serious of which involved the legitimacy of certain payments” the fire chief (R) made to his sons, who also worked for the fire department. The trial court granted summary disposition for defendant. On appeal, the court agreed with plaintiff that there remained genuine issues of material fact that he engaged in protected activity and that his protected activity caused his termination. It found “the trial court erred in its interpretation and application of the WPA. Contrary to the trial court’s stated reasoning, the evidence presented showed that [plaintiff] reported a suspected violation of law to a public body.” And because there was evidence supporting his “assertion that he reported the possible misappropriation of township funds, he was engaged in a protected activity under the WPA.” Because he “established that he was engaged in a protected activity and that there was a causal connection between his protected activity and his termination, the trial court legally erred by holding that he failed to establish a prima facie case under the WPA.” Further, the evidence “established a genuine issue of material fact that Chief [R’s] assertions about the reasons for his recommendation that [plaintiff] be terminated were mere pretext and that he was motivated to fire [him] because he reported his suspicious financial activity.” The court next rejected defendant’s claim that plaintiff’s claim was time-barred. Defendant officially terminated plaintiff at the 12/17/20 “fire board meeting, and he received a corresponding termination letter on” 12/20/20. As such, “he was required to file his action within 90 days of” 12/17/20. Given that “he filed his initial complaint on” 2/26/21, it was timely filed. The court disagreed with defendant’s assertion that R actually terminated plaintiff by text message on 10/9/20, “or that the text was at least a threat of termination that would constitute a violation of the WPA.” Finally, the court found plaintiff was not entitled to remand before a different judge, noting he could not establish a ground for judicial disqualification. Affirmed in part, reversed in part, and remanded.

Criminal contempt for violating a personal protection order (PPO); ARM v KJL; Standard of proof; Notice that the proceeding was criminal in nature; Sufficiency of the evidence

The court held that (1) the trial court applied the correct standard of proof, (2) defendant had sufficient notice it was a criminal proceeding, and (3) there was sufficient evidence he violated the PPO. Thus, it affirmed the trial court’s decision finding him in criminal contempt for violating the PPO. “Petitioner and respondent were previously involved in a relationship.” Petitioner obtained an ex parte PPO prohibiting respondent from contacting petitioner by phone “or ‘posting a message through the use of any medium of communication, including the Internet or a computer or any electronic medium.’ The PPO informed respondent that a violation would subject him to various potential penalties, including ‘immediate arrest’ and the ‘civil and criminal contempt powers of the court.’” He was accused of violating the PPO after, at about 2 a.m. “petitioner received a Snapchat message from respondent, which stated, ‘Morning [kiss face emoji] stop by sometime before this gets much more out of control.’” Respondent first asserted “the trial court applied an incorrect preponderance-of-the-evidence standard of proof.” But the court noted the trial court “indisputably and correctly made its finding beyond a reasonable doubt. Although the prosecutor mistakenly referred to the preponderance-of-the-evidence standard in closing argument, the trial court explicitly stated that it found that the evidence showed ‘at a level of proof beyond a reasonable doubt which is the standard of proof in a case of this matter.’” And its written order indicated it “found respondent guilty of criminal contempt beyond a reasonable doubt.” The court also rejected his argument that it should reverse his “conviction on procedural grounds because the prosecutor thought that the case was a civil matter.” In addition to the warnings in the PPO, during the continued hearing on his motion to terminate it, held before the violation hearing, the trial court informed him “he had been accused of a ‘criminal violation,’ and the violation could result in up to 93 days of incarceration.” Finally, as to the sufficiency of the evidence, the “parties’ past relationship and communications through Snapchat, the content and timing of the message, and petitioner’s testimony that the message appeared as a continuation of earlier messages between them support the trial court’s findings.”