Action alleging violation of state & federal laws prohibiting discriminatory employment practices; Whether the First & Fourteenth Amendment prohibited review of plaintiff’s claims “because he performed important religious functions at” defendant’s school; The doctrine of ecclesiastical abstention & the “ministerial exception”; Our Lady of Guadalupe Sch v Morrissey-Berru; Conlon v InterVarsity Christian Fellowship

[This appeal was from the WD-MI.] The court affirmed the district court’s ruling that it could not adjudicate plaintiff-Pulsifer’s employment discrimination claims and was required to grant defendant-Westshore Christian Academy summary judgment under the doctrine of ecclesiastical abstention and the “ministerial exception.” Undisputed facts showed that his job included performing “vital religious duties to support the Academy’s religious mission[.]” Pulsifer, an African American, was the Dean of Students and Assistant Principal. His job duties required him to be a spiritual leader both in and out of school. He helped implement and lead religious youth groups, he did “a devotion with Academy staff each morning, and he frequently prayed over staff. He also prayed and led devotions at each meeting of the school’s board.” When the Academy fired him, he sued for discriminatory practices under federal and state law. The district court ruled that Pulsifer’s claims were barred by the ministerial exception, which provides that the First and Fourteenth Amendments prohibit applying “state and federal ‘laws governing the employment relationship between a religious institution and certain key employees.’” On appeal, the court considered whether Pulsifer was the type of employee covered by the exception. It concluded that “he was. Pulsifer played an important role in furthering the school’s mission to provide for the religious education and formation of students. Judicial review of the way in which the Academy chooses who should fill that type of role ‘would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.’” The court explained that religious institutions have “‘autonomy with respect to internal management decisions that are essential to the institution’s central [religious] mission.’” It held that there was abundant evidence on the record that a vital part of Pulsifer’s job was to further the Academy’s religious mission. “Like the teachers in Our Lady of Guadalupe, Pulsifer was expected to guide his students’ spiritual formation by ‘express[ing] Christian values to students’ and being their ‘spiritual leader.’” In addition, he “performed a number of important religious functions.” The court noted that “an employee can fall within the ministerial exception even when ‘[m]ost’ of their ‘work [is] secular in nature’” as long as they perform certain types of religious duties.

Sentencing; Scoring of OV 19; MCL 777.49(a); People v Dixon; Distinguishing People v Dickinson & People v Carpenter

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 80720 in the 12/20/23 edition) and remanded the case to the trial court for further briefing, a hearing if necessary, and an analysis of whether OV 19 was properly scored. It held that the “trial court failed to adequately explain its decision to assign 25 points under OV 19.” During the intake process at the county jail after his arrest, “an officer noticed a small baggie fall out of defendant’s pants. The baggie contained a crystal-like substance” that tested positive for meth. The court has “instructed that context is critical to” the OV 19 analysis so that this OV “does not become ‘boundless’ in practice.” In Dixon, it held “that the trial court improperly assessed 25 points under OV 19 for mere possession of a cell phone in a prison bathroom because the ‘context’ provided no facts establishing that ‘the defendant’s conduct, in fact, threatened the security of the institution.’” The trial court here applied Dickinson and the Court of Appeals also found Carpenter supportive. The court found neither case “to be all that illuminating” here. It noted that unlike “this case, neither of those cases involved mere possession of a controlled substance on an arrestee’s person during jail intake; rather, both cases hinged on far more culpable conduct beyond intake and ‘beyond the drug possession—drug smuggling and assault—to justify a 25-point score.’” Further, those cases did not “involve the more controlled jail-intake process, which exists in large part to identify the very contraband at issue and prevent its transportation to more vulnerable areas of the penal institution.” Thus, they were inapt here. The court concluded that adopting “the reasoning of the trial court and Court of Appeals in this case would morph OV 19 into the ‘boundless’ OV that we rejected in Dixon, giving the go-ahead to a 25-point assessment whenever an arrestee incidentally possesses a controlled substance—even, say, pain medication or medical marihuana—at the time of arrest and intake.” Given that nothing in MCL 777.49(a)’s plain text “supports such a categorical rule, we decline to craft one today.” It also declined “to categorically foreclose an assessment of 25 points under OV 19 for intake-related drug possession.” The court rejected “defendant’s argument that a jail’s intake area is not part of a ‘penal institution’ for purposes of MCL 777.49(a).” But it found that “important context was overlooked” in this case. The trial court “failed to make any specific findings regarding how defendant’s conduct actually threatened the” jail’s security.

Dissenting, Justice Bernstein (joined by Justice Zahra) agreed with the majority that neither Dickinson nor Carpenter was “entirely on point, given” the additional, more serious conduct of those defendants. He also agreed “that a jail’s intake area is part of a ‘penal institution’ for purposes of MCL 777.49(a).” But he disagreed with the majority’s “ultimate conclusion about the scoring of OV 19.”

Sentencing; Reliance on acquitted conduct; People v Beck

In an order in lieu of granting leave to appeal, the court reversed Part II(C) of the Court of Appeals judgment (see eJournal # 81452 in the 5/1/24 edition) and remanded the case to the trial court for resentencing. It held that the “trial court erred when it relied on its own determination that defendant possessed an intent to distribute meth[] in imposing [his] sentence for his conviction of simple possession, and the Court of Appeals erroneously affirmed that decision.” While noting that it was sentencing him “only on simple possession, the trial court also explained at sentencing that it believed that defendant had expressed the intent to deliver the substance, despite the jury’s rejection of that charge. In fact, after explaining details of the evidence presented against defendant at trial, the trial court noted that ‘the fact that there’s also a scale in the safe says volumes about what [the] baggies were going to be used for, and that shows an intent to distribute.’ Thus, under the totality of the circumstances,” the court found “that the trial court relied on the intent element, the only element differentiating the charge that the jury rejected—possession with intent to deliver—from the one that the jury found defendant guilty of completing beyond a reasonable doubt—simple possession. ‘Because the sentencing court punished the defendant more severely on the basis of the judge’s finding by a preponderance of the evidence that the defendant committed’ possession with intent to deliver, ‘of which the jury had acquitted him, it violated the defendant’s due-process protections.’” The court concluded this “reliance violated defendant’s due-process rights, because it constituted a finding at sentencing of an essential element to a charge that the jury specifically determined was not proven beyond a reasonable doubt.”

Other acts evidence; The victim’s prior hospitalization; MRE 403; The People v Watkins factors; A child’s hearsay statement offered under the medical-treatment exception (MRE 803(4)); People v Meeboer; Prior corporal punishment; Ineffective assistance of counsel; Failure to object to a witness’s testimony about another child’s bruises; Strategy of shifting blame; Withdrawal of a motion to exclude expert testimony under Daubert v Merrell Dow Pharm, Inc; Convictions of first-degree felony murder & first-degree child abuse based on the same act

The court held that the trial court did not err in admitting evidence of prior instances in which defendant allegedly abused victim-IY and her siblings. Also, he was not denied the effective assistance of counsel. Finally, the evidence supported his convictions of both first-degree felony murder and first-degree child abuse. He took “issue with several strands of evidence related to IY’s prior hospitalization.” IY’s mother and an ER nurse (H) “both testified about an incident” 11 months before IY’s death “when defendant called an ambulance because he found IY unresponsive when she was in his care.” Defendant argued “that this evidence was inadmissible to prove that IY’s prior medical emergency resulted from defendant’s prior abuse.” The court found that “the outcome of the 2016 CPS investigation is not definitive proof of defendant’s innocence.” He also argued “that the trial court committed reversible error in admitting [H’s] testimony that IY identified defendant as the perpetrator of the 2016 incident.” The court found that under the circumstances, there was “a close question regarding whether the trial court properly found that the statement was admissible under MRE 803(4). However, the trial court’s decision regarding a close evidentiary question generally does not constitute an abuse of discretion.” Further, it found that “even if the statement was erroneously admitted, defendant fails to establish a miscarriage of justice warranting reversal.” He additionally argued “that a mistrial was necessary to cure the impermissible inclusion of evidence regarding the 2016 hospitalization—particularly [H’s] testimony that she initiated procedures to submit a Form 3200 report of suspected abuse to CPS.” The court held that “the trial court correctly concluded that the parties’ stipulation did not extend to [H’s] statement and did not abuse its discretion in denying defendant’s motion for a mistrial.” Applying the factors from Watkins, defendant next argued “that the prior incidents of physical discipline described by [IY’s sibling] at trial were not similar to the charged offense.” The court found these arguments unconvincing. He did not show that the trial court abused its discretion in admitting this evidence. Affirmed.

Motion to adjourn to obtain a mental health evaluation; “Good cause”; Plea bargaining; Lafler v Cooper; Negligent delay; Jury composition; Fair-cross section of the community; People v Bryant; People v Williams; Sufficiency of the evidence for convictions of intentional discharge of a firearm from a motor vehicle, felonious assault, & felony-firearm; Self-defense; The Self-Defense Act; MCL 780.972(1); Correction of the judgment of sentence (JOS); Concurrent or consecutive sentencing for felony-firearm; Effect of a sentence to probation; People v Brown

The court held that the trial court did not abuse its discretion in denying defendant’s request to adjourn trial to allow her the opportunity to obtain a mental health evaluation needed for plea negotiations. It also rejected her jury composition challenge and her sufficiency of the evidence claim based on self-defense. But her two-year prison term for her felony-firearm conviction was improperly ordered “to be served consecutively to the three-year term of probation for the underlying felonious assault conviction.” She was also convicted of intentional discharge of a firearm from a motor vehicle and CCW. She sought the adjournment to “obtain her mental health evaluation, which was required to engage in plea negotiations for the felony-firearm charge.” The court held that she failed to show “good cause to warrant an adjournment.” Her motion “was not based on the assertion of a constitutional right. [She] argued that she had the right ‘to negotiate plea offers with the government,’ and ‘a right to have this [case] pre-tried.’ Criminal ‘defendants have no right to be offered a plea’ bargain.” And the constitutional right to present a defense “does not encompass a right to submit a deviation request and seek a plea offer.” Further, when the trial court inquired about “the possibility of a plea offer, the prosecutor advised” that none had been made. “Defendant also failed to establish that she was not negligent in waiting nearly 10 months to obtain the necessary mental health evaluation and submit a deviation request.” She also failed to establish the second and third prongs for her jury composition claim. As to the second prong, she “relied on the fact that, although Black individuals made up 13.7% of the” county’s population, “there were only two Black people in the venire from which her jury was selected. [She] failed to present any evidence showing the racial composition of jury pools and venires in Macomb County over time.” As to the third prong, she “relied on the fact that the juror selection process only draws from information derived from the Secretary of State. [She] offered no evidence that this jury-selection process results in a systematic exclusion of Black people from” the county jury pools. The court affirmed but remanded “for the limited purpose of correcting the” JOS to reflect that her 2-year prison term for felony-firearm and 3-year probation term for felonious assault are to run concurrently.

Sentencing; Youth as a mitigating factor; The Miller factors; People v King; People v Boykin; Proportionality; De facto life sentence

Concluding that the trial court did not adequately explain its reasons for defendant’s sentence on resentencing, the court remanded the case for it to do so. He was resentenced to 40 to 60 years for his 2014 jury-trial convictions of felony murder, AWIM, first-degree home invasion, and felony-firearm. Defendant argued that “the trial court failed to properly consider mitigating factors, and the sentence was disproportionate and an unconstitutional de facto life sentence.” The court rejected his claim “that the trial court did not properly consider [his] youth as a mitigating factor.” Defense counsel provided the trial “court with a comprehensive sentencing memorandum that covered all aspects of defendant’s life, which included many significant difficulties with family life, school, and early criminal occurrences. Similarly, the PSIR contained much the same information, and both defendant and his counsel reiterated this information prior to sentencing.” Further, the trial “court repeatedly noted that it had read the information in both documents. Under King and Boykin, the trial court did consider the attributes of youth as argued by defendant.” But the court noted that the “trial court offered no explanation as to how defendant’s sentence was proportionate to him individually or how it met any of the goals of sentencing.” And even though his “sentence was within the parameters of MCL 769.25(9), and is presumed proportionate on appeal, we have no explanation—other than that the trial court determined the sentence to be ‘proportional’—for why this was a sentence proportional to the crime and the offender. So, even though ‘there is no authority that imposes a higher standard of articulation regarding youth,’ there is still a ‘general requirement that a trial court must adequately explain its sentence on the record in order to facilitate appellate review.’” Defendant next argued his sentence was an unconstitutional de facto life sentence. He asserted it was “the ‘functional equivalent of a sentence of life in prison.’” But he did “not identify any unusual circumstances which would make his” legislatively mandated “sentence disproportionate.” Because he did not establish “the existence of any unusual circumstances to rebut the presumptive proportionality of his sentence, defendant has failed to establish plain error.” The court retained jurisdiction.

Search & seizure; Whether the warrant to search defendant’s apartment was supported by “probable cause”; Whether the search warrant affidavit was “stale”; Whether it contained only “conclusory statements”; Whether the district court erred by denying defendant a hearing on the affidavit; Unpreserved text messages; Whether there was a “critical” omission or “falsity”

The court affirmed the district court’s order denying defendant-Higgins’s motion to suppress the evidence seized under a search warrant for his residence where it was supported by “probable cause.” It was not necessary for him to be “seen” selling drugs out of his apartment where all that was needed was an established “connection between the place to be searched and the illicit activity.” Higgins pled guilty to possessing meth and fentanyl with the intent to distribute. On appeal, he challenged the search that led to his arrest, and the denial of his motion to suppress the drug evidence seized when his apartment was searched, claiming the search was not supported by probable cause. He first argued there was an insufficient “nexus” between drug trafficking and the residence to support the warrant. But the court disagreed, explaining it was not necessary to see him selling drugs out of the apartment where all that was needed was an established “connection between the place to be searched and the illicit activity.” It also held that even if the 55 days between the most recent controlled buy and the search made the warrant “stale,” this did not defeat a finding of probable cause where the texts and phone messages he sent the day before the search refreshed the allegedly outdated information. The court rejected his argument that the affidavit was filled with “conclusory statements” where it contained “direct quotations from Higgins’s interactions with the confidential source.” It also held that the district court did not err by denying him a hearing on whether the affidavit contained misrepresentations or omitted relevant information. He claimed the affidavit misled the issuing judge where the government failed to preserve certain text messages that would have shown he was not selling drugs from his residence. However, he failed to offer any evidence that “the officer was lying” when he summarized the messages, and other text messages supported the summary. The “omission” regarding a meeting at his prior residence was not “‘critical’ to the probable-cause determination.” The court also found no error in the affidavit's reference to Higgins’s movements to and from his residence where, despite his claims that they created a false impression, the statements were not “false.”

Sufficiency of the evidence for conspiracy to commit mail fraud convictions; Jury instructions on mail fraud; Denial of defendants’ request for a jury instruction about an affirmative defense of “anti-saturation”; Sufficiency of the evidence for conspiracy to commit securities fraud convictions; “Security”; Securities & Exch. Comm’n v Edwards

The court held that there was sufficient evidence for the jury to find defendants guilty of conspiracy to commit mail fraud and securities fraud arising from a pyramid scheme. The government established that the scheme’s investment packages constituted investment contracts that qualified as “securities.” And the court rejected their challenges to the jury instructions on mail fraud. Defendants-Maike, Barnes, and Hosseinipour were leading figures in a company (referred to as I2G) the FBI concluded was a pyramid scheme. They argued there was insufficient evidence to convict them of conspiracy to commit mail fraud. The court disagreed, finding the government “presented abundant proof that the defendants knowingly participated in (and in Maike’s case devised) a fraudulent scheme.” It concluded that “I2G’s business plan—and its elaborate system of fees and rules for distributor compensation—was undisputedly a ‘plan or course of action.’ And the government presented overwhelming evidence that the defendants employed that plan to deprive others—namely, lower-level distributors—of money by means of lies and fraudulent representations.” As to the district court’s jury instructions, its “narrow substitution—'pyramid scheme’ for ‘scheme to defraud,’ as respectively defined by the court—did not allow the jury to elide the question whether the defendants participated in a fraudulent scheme with fraudulent intent.” The court held that “the relevant instructions, considered as a whole, were duplicative enough to require the jury to consider that question.” As to the denial of defendants’ requested jury instruction on the affirmative defense of “anti-saturation,” the court concluded such an instruction “would only have confused the jury[.]” As to the sufficiency of the evidence for the conspiracy to commit securities fraud convictions, it rejected their claim the government failed to establish that “I2G’s Emperor packages were securities.” The Supreme Court has ruled that it is for the jury to decide whether an “instrument is a security[.]” The government argued that the “packages were investment contracts.” The court noted that “[w]hether ‘a particular scheme is an investment contract’ depends on ‘whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others.’” The court held that the “jury had ample grounds to find that the Emperor packages were securities and thus that the defendants were guilty of conspiracy to commit securities fraud.” Affirmed except that, as described in an unpublished opinion, it vacated the denial of Hosseinipour’s Rule 33 motion for a new trial and remanded “for the limited purpose of deciding that motion anew.”

Action alleging violation of state & federal laws prohibiting discriminatory employment practices; Whether the First & Fourteenth Amendment prohibited review of plaintiff’s claims “because he performed important religious functions at” defendant’s school; The doctrine of ecclesiastical abstention & the “ministerial exception”; Our Lady of Guadalupe Sch v Morrissey-Berru; Conlon v InterVarsity Christian Fellowship

[This appeal was from the WD-MI.] The court affirmed the district court’s ruling that it could not adjudicate plaintiff-Pulsifer’s employment discrimination claims and was required to grant defendant-Westshore Christian Academy summary judgment under the doctrine of ecclesiastical abstention and the “ministerial exception.” Undisputed facts showed that his job included performing “vital religious duties to support the Academy’s religious mission[.]” Pulsifer, an African American, was the Dean of Students and Assistant Principal. His job duties required him to be a spiritual leader both in and out of school. He helped implement and lead religious youth groups, he did “a devotion with Academy staff each morning, and he frequently prayed over staff. He also prayed and led devotions at each meeting of the school’s board.” When the Academy fired him, he sued for discriminatory practices under federal and state law. The district court ruled that Pulsifer’s claims were barred by the ministerial exception, which provides that the First and Fourteenth Amendments prohibit applying “state and federal ‘laws governing the employment relationship between a religious institution and certain key employees.’” On appeal, the court considered whether Pulsifer was the type of employee covered by the exception. It concluded that “he was. Pulsifer played an important role in furthering the school’s mission to provide for the religious education and formation of students. Judicial review of the way in which the Academy chooses who should fill that type of role ‘would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.’” The court explained that religious institutions have “‘autonomy with respect to internal management decisions that are essential to the institution’s central [religious] mission.’” It held that there was abundant evidence on the record that a vital part of Pulsifer’s job was to further the Academy’s religious mission. “Like the teachers in Our Lady of Guadalupe, Pulsifer was expected to guide his students’ spiritual formation by ‘express[ing] Christian values to students’ and being their ‘spiritual leader.’” In addition, he “performed a number of important religious functions.” The court noted that “an employee can fall within the ministerial exception even when ‘[m]ost’ of their ‘work [is] secular in nature’” as long as they perform certain types of religious duties.

Medical malpractice; Vicarious liability; Grewe v Mt Clemens Gen Hosp; Ostensible agency & agency by estoppel

In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see eJournal # 80855 in the 1/19/24 edition) and remanded the case to the trial court for further proceedings. The court held that, applying the appropriate test, plaintiff established a genuine issue of material fact as to defendant-Beaumont’s “liability for medical malpractice under the theory of ostensible agency.” It previously remanded the case to the Court of Appeals to apply the appropriate test under Grewe. The court found that the “Court of Appeals erred by distinguishing between ostensible agency and agency by estoppel.” The court noted that Michigan law “has not distinguished between the terms. Our courts have used ‘ostensible agency’ and ‘agency by estoppel’ interchangeably.” It concluded that the Court of Appeals majority was “correct that reliance is relevant under the Grewe test, i.e., the test for ostensible agency or agency by estoppel.” But the majority erred “in its analysis of plaintiff’s reliance. Reliance may be found where the patient presents to the hospital and is ‘“looking to the hospital for treatment.”’” In this case, plaintiff presented for treatment at the hospital ER “and was treated at the hospital by a doctor with whom she had no prior relationship.” The court found that Beaumont did “not set forth facts establishing as a matter of law that it dispelled plaintiff’s reasonable belief that” defendant-Dr. Lonappan was its agent. The court disagreed “with the Court of Appeals majority that the existence of an agreement between plaintiff’s primary care physician and” defendant-Hospital Consultants, “Dr. Lonappan’s employer, without more, establishes that plaintiff did not rely on Beaumont for care. . . . As an initial matter, the agreement goes not to reliance, but to whether plaintiff’s belief that Dr. Lonappan was Beaumont’s agent was reasonable, as the agreement pertains to whether plaintiff had a preexisting relationship with Dr. Lonappan.” The court added that, even “if the agreement could pertain to reliance, there is no evidence that plaintiff had any knowledge of the agreement at the time that she was admitted. Therefore, the mere existence of the agreement does not, as a matter of law, rebut [her] reasonable belief that Dr. Lonappan was Beaumont’s agent, or dispel plaintiff’s reliance on that belief when she was treated by Dr. Lonappan.”

Dissenting, Justice Zahra found that the majority essentially “improperly assumes a patient’s reliance based solely on their arrival at the hospital, which invariably results in being assigned an attending physician by the hospital, particularly in an emergency setting.”

Medical malpractice; Vicarious liability; Grewe v Mt Clemens Gen Hosp; Ostensible agency & agency by estoppel

In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see eJournal # 80855 in the 1/19/24 edition) and remanded the case to the trial court for further proceedings. The court held that, applying the appropriate test, plaintiff established a genuine issue of material fact as to defendant-Beaumont’s “liability for medical malpractice under the theory of ostensible agency.” It previously remanded the case to the Court of Appeals to apply the appropriate test under Grewe. The court found that the “Court of Appeals erred by distinguishing between ostensible agency and agency by estoppel.” The court noted that Michigan law “has not distinguished between the terms. Our courts have used ‘ostensible agency’ and ‘agency by estoppel’ interchangeably.” It concluded that the Court of Appeals majority was “correct that reliance is relevant under the Grewe test, i.e., the test for ostensible agency or agency by estoppel.” But the majority erred “in its analysis of plaintiff’s reliance. Reliance may be found where the patient presents to the hospital and is ‘“looking to the hospital for treatment.”’” In this case, plaintiff presented for treatment at the hospital ER “and was treated at the hospital by a doctor with whom she had no prior relationship.” The court found that Beaumont did “not set forth facts establishing as a matter of law that it dispelled plaintiff’s reasonable belief that” defendant-Dr. Lonappan was its agent. The court disagreed “with the Court of Appeals majority that the existence of an agreement between plaintiff’s primary care physician and” defendant-Hospital Consultants, “Dr. Lonappan’s employer, without more, establishes that plaintiff did not rely on Beaumont for care. . . . As an initial matter, the agreement goes not to reliance, but to whether plaintiff’s belief that Dr. Lonappan was Beaumont’s agent was reasonable, as the agreement pertains to whether plaintiff had a preexisting relationship with Dr. Lonappan.” The court added that, even “if the agreement could pertain to reliance, there is no evidence that plaintiff had any knowledge of the agreement at the time that she was admitted. Therefore, the mere existence of the agreement does not, as a matter of law, rebut [her] reasonable belief that Dr. Lonappan was Beaumont’s agent, or dispel plaintiff’s reliance on that belief when she was treated by Dr. Lonappan.”

Dissenting, Justice Zahra found that the majority essentially “improperly assumes a patient’s reliance based solely on their arrival at the hospital, which invariably results in being assigned an attending physician by the hospital, particularly in an emergency setting.”