42 USC § 1981 action alleging racially discriminatory grantmaking; Standing; “Injury in fact”; Entry of judgment for defendants

On petition for a rehearing en banc, the original panel reviewed the petition and concluded that the issues raised were fully considered in the original submission and decision (see eJournal # 85286 in the 3/11/26 edition). Judge Boggs would grant the petition for panel rehearing for the reasons stated in his dissent in the original opinion. Less than a majority of the court’s judges voted in favor of rehearing en banc. Thus, the petition was denied.

Criminal prosecution; Sua sponte dismissal; Separation of powers; Genesee Prosecutor v Genesee Circuit Judge; Prosecutorial discretion; People v Morrow; Inactive Michigan Commission on Law Enforcement Standards (MCOLES) license; MCL 28.609(14); Witness competency; MRE 601; Nolle prosequi; MCL 767.29

The court held that the trial court abused its discretion and violated separation-of-powers principles by sua sponte dismissing the felony prosecution without prejudice because the key police witness had an inactive MCOLES license. Defendant was charged with CCW, possessing a device designed to convert a semiautomatic firearm into a fully automatic firearm, and felony-firearm after Officer F saw defendant make a throwing motion, heard a metallic object hit the ground, and recovered a handgun with a conversion device. F was the only testifying witness at the preliminary exam. On the scheduled trial date, the prosecution disclosed that F’s MCOLES license was inactive when he investigated the case. The trial court dismissed the prosecution after concluding that “the officer had no authority to act as a police officer.” On appeal, the court held that the dismissal improperly intruded on the prosecutor’s charging authority because “‘the prosecutor, an official of the executive branch, alone makes the decision to bring a criminal charge,’” and a court may not control the “‘institution and conduct of prosecutions’” absent lawful authority. The court emphasized that no statute authorized sua sponte dismissal as a remedy for an inactive MCOLES license, and the trial court had made “no determination” that the evidence was insufficient for conviction or that the prosecutor’s decisions or actions were unconstitutional, illegal, or ultra vires. The court also held that F (who did not arrest defendant) was not incompetent to testify merely because his license was inactive because MRE 601 makes “[e]very person” competent unless limited capacity or another rule provides otherwise. Although MCL 28.609(14) barred him from exercising law-enforcement authority with an inactive license, it did not preclude testimony about relevant observations. Reversed and remanded to allow reinstatement of the charges at the prosecution’s discretion.

Sufficiency of the evidence for a CCW conviction (MCL 750.227(1)); Whether a butterfly knife constituted a “dangerous weapon”; People v Lynn; “Other dangerous weapon”; People v Brown; A “dangerous stabbing weapon”; M Crim JI 11.4

Holding that “the evidence was insufficient to establish that the butterfly knife” at issue was a “dangerous weapon” under MCL 750.227(1), the court reversed defendant’s CCW conviction and sentence, and remanded for entry of a judgment of acquittal. On appeal, the prosecution asserted “that it could—and did—prove that the butterfly knife was per se dangerous by presenting evidence of its characteristics.” But the court found that argument was “foreclosed by Lynn, which holds that if an instrument is not a dagger, dirk, stiletto, or double-edged nonfolding stabbing instrument, the prosecution must proceed on the theory that the instrument is an ‘other dangerous weapon.’” Further, the prosecution did not proceed at trial on the per se theory. “Rather, it asserted that the butterfly knife was a ‘dangerous stabbing weapon,’ and the jury was instructed consistent with M Crim JI 11.4[.]” As its theory was “that the butterfly knife was an ‘other dangerous weapon,’” it had the burden to prove “‘that the instrument was used, or intended for use, as a weapon for bodily assault or defense.’” The court concluded that it did not do so. “The evidence showed that defendant was seated in his truck, playing a video game and eating a sandwich when the officers approached. He was polite, cooperative, and consented to a search of the vehicle. The butterfly knife was found in the center console, beneath other items. [He] told officers—and later testified—that he used [it] for ‘party tricks with his friends’ and had forgotten it was in the truck.” One of the officers “confirmed that defendant said or did nothing suggesting an intent to use the knife in a dangerous way.” And while both the other officer and defendant acknowledged that it “could be used as a dangerous weapon, that possibility alone is insufficient to establish that ‘defendant used the instrument, or was carrying the instrument for the purpose of use, as a weapon.’” And the prosecution did not present any “evidence contradicting defendant’s explanation or supporting an inference that he intended to use the knife for assaultive or defensive purposes.”

Ballot access; Nominating petitions; Signature validity; MCL 168.552; Mandamus; Clear legal duty; Neilson v Board of State Canvassers; Duplicate signatures; McCoy v Berrien Cnty Clerk; Declaratory relief

The court held that plaintiff was not entitled to mandamus or declaratory relief compelling defendant to certify him as a candidate for Oakland County Probate Court Judge. Plaintiff submitted nominating petitions with 4,716 signatures, but the Oakland County Clerk found only 3,862 valid signatures. The Secretary of State upheld the insufficiency determination after concluding that plaintiff remained 115 signatures short. In this original action, the court first held that defendant did not have a clear legal duty to consider 111 voter statements submitted after the statutory appeal deadline because Michigan Election Law “does not afford a candidate unlimited opportunities to rehabilitate ‘doubtful’ signatures,” and nothing required defendant to consider documents filed “after the deadline for him to seek review.” The court also held that review of those voter statements was not ministerial because the method for reviewing petition signatures is “a matter of discretion.” The court next rejected plaintiff’s arguments about 90 additional signatures, noting that they would not cure the 115-signature deficit, and holding that duplicate signatures were properly rejected because “‘signatures appearing twice or more upon the same or several sections of a petition should be rejected.’” As to signatures rejected for address, name, and date issues, plaintiff failed to provide sufficient record evidence, and “when the facts are not clear, mandamus cannot lie.” The court further held that “defendant was ‘not required to count signatures with dates that could not be properly verified.’” Because plaintiff did not establish a clear legal duty to certify his name for the primary ballot, mandamus was unavailable, and the court dismissed his declaratory-relief request for lack of jurisdiction. Complaint denied.

No-fault insurance; PIP benefits; Resident relative; MCL 500.3114(1); Domicile; Grange Ins Co of MI v Lawrence; Domicile factors; Fowler v Auto Club Ins Ass’n; Self-serving testimony; Distinguishing Fuhr v Trinity Health Corp

The court held that a genuine issue of material fact existed as to whether the named insured was domiciled with the injured claimant at the Redford address when the motor-vehicle accident occurred. Plaintiffs, medical providers acting as assignees, sought PIP benefits from defendant-insurer for treatment provided to the claimant. Defendant argued that she was neither a named insured nor a resident relative under the policy because the named insured (nonparty-W) was domiciled elsewhere. On appeal, the court held that summary disposition was improper because the record contained conflicting evidence on domicile. The court distinguished Fuhr because the claimant’s testimony was not “blatantly contradicted by the record,” and instead “much of the record actually supports it.” The court emphasized that the policy listed W at the Redford address, W’s driver’s license also used that address, she received mail there, kept belongings there, sometimes stayed there, and at points testified in ways supporting Redford as a domicile. Although other testimony supported Birmingham as W’s domicile, including that she lived with her husband there, domicile is generally “a question of fact” when the underlying facts are disputed. The court further held that the trial court appeared to make credibility determinations by accepting portions of W’s testimony and rejecting the claimant’s testimony, but “a trial court may not make a determination regarding the parties’ credibility when ruling on a motion for summary disposition.” Reversed and remanded.

Motion for a preliminary injunction preventing a prior employee from divulging trade secrets to a competitor/new employer; Whether the moving party was required to prove each of the preliminary injunction factors by clear & convincing evidence

The court held that the district court erred by requiring plaintiff-PCC Airfoils to meet each of the preliminary injunction factors with clear and convincing evidence. Defendant-Daughtrey, an engineer, worked for PCC for 26 years before he took a job as director of engineering with a PCC competitor (the other defendant). PCC accused him of stealing trade secrets and sued to enjoin him from using the information or working on products similar to what he was working on at PCC. The district court denied the injunction. On appeal, the court held that a “movant does not need to establish a quantum of proof, whether a preponderance or clear and convincing evidence, with respect to each factor to be eligible for preliminary relief.” Although the unlikeliness of success on the merits or failure to show irreparable injury would result in a denial, the moving party is not required “to establish ‘clear and convincing evidence’ with respect to each of the four factors in order to be eligible for preliminary relief.” The court noted that the “necessary showing for any one factor turns on the strength of the plaintiff’s showings for the other factors.” Given that “the Supreme Court has cautioned that the clear and convincing evidence standard applies in only a few rare circumstances, . . . a court may not require every plaintiff to meet a heightened standard of proof for every preliminary injunction factor to qualify for injunctive relief. The district court erred in reaching a contrary conclusion.” Reversed and remanded.

Ballot access; Nominating petitions; Signature validity; MCL 168.552; Mandamus; Clear legal duty; Neilson v Board of State Canvassers; Duplicate signatures; McCoy v Berrien Cnty Clerk; Declaratory relief

The court held that plaintiff was not entitled to mandamus or declaratory relief compelling defendant to certify him as a candidate for Oakland County Probate Court Judge. Plaintiff submitted nominating petitions with 4,716 signatures, but the Oakland County Clerk found only 3,862 valid signatures. The Secretary of State upheld the insufficiency determination after concluding that plaintiff remained 115 signatures short. In this original action, the court first held that defendant did not have a clear legal duty to consider 111 voter statements submitted after the statutory appeal deadline because Michigan Election Law “does not afford a candidate unlimited opportunities to rehabilitate ‘doubtful’ signatures,” and nothing required defendant to consider documents filed “after the deadline for him to seek review.” The court also held that review of those voter statements was not ministerial because the method for reviewing petition signatures is “a matter of discretion.” The court next rejected plaintiff’s arguments about 90 additional signatures, noting that they would not cure the 115-signature deficit, and holding that duplicate signatures were properly rejected because “‘signatures appearing twice or more upon the same or several sections of a petition should be rejected.’” As to signatures rejected for address, name, and date issues, plaintiff failed to provide sufficient record evidence, and “when the facts are not clear, mandamus cannot lie.” The court further held that “defendant was ‘not required to count signatures with dates that could not be properly verified.’” Because plaintiff did not establish a clear legal duty to certify his name for the primary ballot, mandamus was unavailable, and the court dismissed his declaratory-relief request for lack of jurisdiction. Complaint denied.

Motion for a preliminary injunction preventing a prior employee from divulging trade secrets to a competitor/new employer; Whether the moving party was required to prove each of the preliminary injunction factors by clear & convincing evidence

The court held that the district court erred by requiring plaintiff-PCC Airfoils to meet each of the preliminary injunction factors with clear and convincing evidence. Defendant-Daughtrey, an engineer, worked for PCC for 26 years before he took a job as director of engineering with a PCC competitor (the other defendant). PCC accused him of stealing trade secrets and sued to enjoin him from using the information or working on products similar to what he was working on at PCC. The district court denied the injunction. On appeal, the court held that a “movant does not need to establish a quantum of proof, whether a preponderance or clear and convincing evidence, with respect to each factor to be eligible for preliminary relief.” Although the unlikeliness of success on the merits or failure to show irreparable injury would result in a denial, the moving party is not required “to establish ‘clear and convincing evidence’ with respect to each of the four factors in order to be eligible for preliminary relief.” The court noted that the “necessary showing for any one factor turns on the strength of the plaintiff’s showings for the other factors.” Given that “the Supreme Court has cautioned that the clear and convincing evidence standard applies in only a few rare circumstances, . . . a court may not require every plaintiff to meet a heightened standard of proof for every preliminary injunction factor to qualify for injunctive relief. The district court erred in reaching a contrary conclusion.” Reversed and remanded.

Termination under § 19b(3)(c)(i); In re Williams; Reasonable reunification efforts; Accommodation under the Americans with Disabilities Act (ADA); In re Sanborn; Ineffective assistance of counsel; Failure to make futile arguments; Due process claims related to adjournments; MCR 3.923(G); Good cause; Child’s best interests; Effect of relative placement; Advice as to appellate rights; Plain error review; Parent-Agency Treatment Plan (PATP); Community Mental Health (CMH)

The court held that the trial court did not plainly err in finding the DHHS made reasonable reunification efforts, including accommodations for respondent-mother’s cognitive conditions. It rejected her ineffective assistance of counsel claims, and found the trial court did not violate her due process rights related to its adjournment decisions. Further, clear and convincing evidence supported termination under § (c)(i), and the trial court did not clearly err in finding that it was in the child’s best interests. While the trial court plainly erred in inaccurately advising her of her appellate rights, she could not show how this affected her substantial rights. Thus, the court affirmed the termination order. As to reunification efforts, the record indicated the DHHS “was aware of respondent’s intellectual functioning following her psychological assessment.” And the evidence showed it “took the recommendations from the psychological evaluation and implemented them in the service plan. Specifically, respondent was provided a written summary to explain the [PATP], respondent’s parenting education classes adopted accommodations to educate [her] in a simple and clear format, and [she] was referred to employment service providers who could find her a job suited to her capabilities.” But she failed to take advantage of the accommodations. The court also noted that she did not “provide any alternative services that would have helped her to progress toward reunification.” As to § (c)(i), well over 182 “days had passed since the adjudication before the termination hearing[.]” The caseworker “testified that the ongoing barriers toward reunification included respondent’s substance use, homelessness, employment, and domestic violence issues with [the] father.” Substance abuse was cited as the most substantial issue leading to the adjudication. The court found that the DHHS provided “ample services” specifically to address this issue, including “CMH services that involved case management and medication management assistance, a psychological evaluation, drug screenings, and an inpatient drug rehabilitation program.” While she completed the inpatient program, any progress she “made with her treatment was lost as she continued to test positive for meth[] after the program was completed.” She tested positive for meth 72 times during the proceedings.