Divorce; Appellate jurisdiction; Final order; MCR 7.202(6); MCR 7.203(A)(1); Joint tax return; Collateral attack; Surman v Surman; Domestic relations attorney fees; MCR 3.206(D)(2)(b); Compensatory civil contempt; MCL 600.1721; Alpena Cnty Bd of Cnty Rd Comm’rs v Tadajewski
 

The court held that it lacked jurisdiction over defendant-wife’s appeal from a postjudgment divorce order requiring cooperation with filing a joint tax return and awarding attorney fees. The judgment of divorce required the parties to file a joint 2024 tax return, and the later order directed defendant to cooperate with the parties’ marital tax preparer and pay plaintiff $1,500 in attorney fees. The court first held that defendant could not challenge the joint-return requirement through an appeal from the October motion-to-compel order because the July judgment of divorce was the final order that included this requirement, and under Surman, a party “cannot wait until the entry of a subsequent final order to untimely appeal an earlier final order.” The court next held that it lacked jurisdiction over the tax-preparer directive because the October order did not dispose of all claims, did not involve custody, parenting time, or domicile, and any appeal from an attorney-fee order is “limited to the portion of the order” awarding fees. Finally, the court held that the attorney-fee award itself was not appealable of right because MCR 3.206(D)(2)(b), which applies when fees are incurred because a party “refused to comply with a previous court order,” implements the trial court’s contempt power. Relying on Tadajewski, the court concluded that such an award is “a form of compensatory civil contempt” under MCL 600.1721 and therefore “is not a final order appealable of right.” Dismissed for lack of jurisdiction.

First Amendment free speech claim under 42 USC § 1983; Preliminary injunction; Likelihood of success on the merits; “Viewpoint discrimination”; Protected speech; “Hecklers’ veto”

The court reversed the district court’s denial of plaintiff-Boddy’s motion for a preliminary injunction, concluding defendant-Grech “curtailed Boddy’s speech because of the viewpoint she expressed.” It also held that, “even in a limited public forum, the government can perpetuate a heckler’s veto” and that occurred here. Boddy addressed defendant-school board during a meeting public comment period about the alleged teaching of “critical race theory.” Grech, the president of the board, threated to turn off Boddy’s microphone, and when “some in the audience became disruptive in reaction to Boddy’s remarks,” Grech took the microphone away from Boddy before Boddy had used her allotted speaking time. Boddy brought a First Amendment claim under § 1983. The district court denied her motion “to preliminarily enjoin the Board from enforcing its” public participation policy to prohibit her speech at future meetings. It ruled that she failed to demonstrate irreparable harm or the strong likelihood of success on the merits. On appeal, the court noted that the parties correctly agreed that the meeting was a “limited public forum” in which “‘the government can impose reasonable restrictions based on speech content, but it cannot engage in viewpoint discrimination.’” The court held that the district court erred when it characterized Boddy’s use of the phrase “‘cowardice [sic] superintendent,’ as an ad hominem attack unprotected by the First Amendment.” The court concluded the record showed “that Grech’s application of the rules to Boddy’s speech was not content neutral.” As to the idea she “cut off Boddy because of her hostile tone[,]” the district court correctly “found—and the video evidence confirms—Boddy’s tone and demeanor were objectively professional and consistent with proper decorum.” Because the court determined “that defendants engaged in impermissible viewpoint discrimination,” Boddy showed “a strong likelihood of success on the merits of her First Amendment claim.” She also showed a likelihood of success on the merits of her heckler’s veto theory. While the court had “yet to apply the heckler’s veto to a limited public forum,” its application flowed logically from its First Amendment jurisprudence. As to irreparable harm, when “‘constitutional rights are threatened or impaired, irreparable injury is presumed[,]’” and the court held that defendants failed to rebut it. Remanded with instructions to issue the requested preliminary injunction.

First Amendment free speech claim under 42 USC § 1983; Preliminary injunction; Likelihood of success on the merits; “Viewpoint discrimination”; Protected speech; “Hecklers’ veto”

The court reversed the district court’s denial of plaintiff-Boddy’s motion for a preliminary injunction, concluding defendant-Grech “curtailed Boddy’s speech because of the viewpoint she expressed.” It also held that, “even in a limited public forum, the government can perpetuate a heckler’s veto” and that occurred here. Boddy addressed defendant-school board during a meeting public comment period about the alleged teaching of “critical race theory.” Grech, the president of the board, threated to turn off Boddy’s microphone, and when “some in the audience became disruptive in reaction to Boddy’s remarks,” Grech took the microphone away from Boddy before Boddy had used her allotted speaking time. Boddy brought a First Amendment claim under § 1983. The district court denied her motion “to preliminarily enjoin the Board from enforcing its” public participation policy to prohibit her speech at future meetings. It ruled that she failed to demonstrate irreparable harm or the strong likelihood of success on the merits. On appeal, the court noted that the parties correctly agreed that the meeting was a “limited public forum” in which “‘the government can impose reasonable restrictions based on speech content, but it cannot engage in viewpoint discrimination.’” The court held that the district court erred when it characterized Boddy’s use of the phrase “‘cowardice [sic] superintendent,’ as an ad hominem attack unprotected by the First Amendment.” The court concluded the record showed “that Grech’s application of the rules to Boddy’s speech was not content neutral.” As to the idea she “cut off Boddy because of her hostile tone[,]” the district court correctly “found—and the video evidence confirms—Boddy’s tone and demeanor were objectively professional and consistent with proper decorum.” Because the court determined “that defendants engaged in impermissible viewpoint discrimination,” Boddy showed “a strong likelihood of success on the merits of her First Amendment claim.” She also showed a likelihood of success on the merits of her heckler’s veto theory. While the court had “yet to apply the heckler’s veto to a limited public forum,” its application flowed logically from its First Amendment jurisprudence. As to irreparable harm, when “‘constitutional rights are threatened or impaired, irreparable injury is presumed[,]’” and the court held that defendants failed to rebut it. Remanded with instructions to issue the requested preliminary injunction.

Moving violation causing death; MCL 257.601d(1); Proximate cause; Victim’s intoxication; Blood alcohol concentration (BAC); Relevance; MRE 401; MRE 403; Gross negligence; Superseding cause; People v Feezel; People v Schaefer; Speeding; People v McCoy

The court held that evidence of the decedent’s possible intoxication was relevant to proximate cause and admissible under MRE 403 in defendant’s prosecution for moving violation causing death. Defendant was charged after his vehicle collided with the decedent’s motorcycle during an alleged unlawful U-turn, and he sought to admit evidence that the decedent’s BAC may have been as high as 0.081 g/dL. The court first held that the evidence was relevant because causation was an element of MCL 257.601d(1), and evidence of the decedent’s BAC had “‘any tendency to make gross negligence on the part of the victim more or less probable.’” Relying on Feezel, the court emphasized that intoxication alone is not automatically relevant, but here it had to be considered with other admissible evidence that the decedent may have accelerated quickly and traveled as much as 20 mph over the speed limit. The court reasoned that the lower courts erred by considering the BAC evidence “in a silo,” because the jury could consider whether intoxication affected the decedent’s “possible speeding, his rates of acceleration, and his ability to react” to defendant’s U-turn. The court next held that the BAC evidence was not barred by MRE 403 because the combination of possible intoxication, rapid acceleration, and speeding was “not merely marginally probative, but potentially critical to the issue of causation.” The court stressed that defendant did not have to prove gross negligence at this stage, but only show that “‘a reasonable juror could view’” the decedent’s conduct as showing wanton disregard. The court reversed the Court of Appeals judgment, vacated the district court’s order, and remanded to the district court.

Justice Zahra dissented. He agreed that a victim’s conduct and intoxication may be considered together, but would have held that defendant failed to create a jury-submissible question on gross negligence. In his view, “mild intoxication,” driving up to 75 mph in a 55-mph zone, and quick acceleration amounted “at best” to ordinary negligence, not “wanton disregard of the consequences.” He also concluded that MRE 403 supported exclusion because the BAC evidence had minimal probative value but a high risk of unfair prejudice.

CSC I; MCL 750.520b; Sentencing; OV 10; Predatory conduct; MCL 777.40(1)(a); People v Cannon; Vulnerability; People v Huston; Jury unanimity; Aggravating circumstances; MCL 750.520b(1)(c); People v Gadomski; Alternative means; People v Cooks

The court held that OV 10 was properly scored at 15 points and that defendant was not denied a unanimous jury verdict on his CSC I conviction. Defendant sexually assaulted the victim while she was closing a coffee stand at a university student center, then used a claw hammer to open a safe and fled. On appeal, the court first held that defendant engaged in predatory conduct because he lingered near the victim around closing time, remained while she completed her duties, and followed her down a hallway to a secluded office. The court reasoned that this conduct resembled “lying in wait and stalking” and was calculated to “place himself in a better position” to commit the offense. The court next held that the victim was vulnerable because she was working alone during the evening shift, few if any others were present, and defendant followed her into “a more secluded part of the basement office,” increasing her “readily apparent susceptibility . . . to injury, [or] physical restraint[.]” The court also held that defendant’s primary purpose was victimization because he entered the office, threatened the victim, demanded money, restrained her, sexually assaulted her, and burglarized the safe. Finally, the court rejected defendant’s jury-unanimity claim. Although the jury was instructed that it did not have to agree on which aggravating felony accompanied the sexual penetration, the court held under Gadomski that “jury unanimity is not required with regard to the alternate theories” where the alternatives are means of proving one CSC I offense. The court further held that entering without breaking, safe breaking, and armed robbery were “facets of a single transaction,” not materially distinct acts requiring a specific-unanimity instruction under Cooks. Affirmed.

Probation violation; No contact with a spouse as a condition of probation; MCL 771.3(3) & 771.3(11); Wide discretion in setting probation conditions; People v Miller; Distinguishing People v Graber; Order that payment of monetary penalties first imposed as probation conditions remain in effect; MCL 769.1k; Effect of probation revocation; People v Goulder; Judgment of sentence (JOS) clerical error

The court held that the trial court did not abuse its discretion in ordering defendant not to have contact with her husband as a condition of her probation given the facts of the case. It also did not exceed its statutory authority in ordering “that payment of monetary penalties first imposed as probation conditions should remain in effect.” She pled guilty to felony resisting arrest and was initially sentenced to probation. But after multiple probation violations, her probation was revoked and the trial court sentenced her to 16 months to 2 years. It also stated that all of her “prior penalties were still owing in the amount of” $4,371. But it waived a late fee. As to the no contact condition, while this case was distinguishable from Graber, the condition here “was nonetheless rationally related to defendant’s rehabilitation. The main goal of [her] probation was to treat her alcohol addiction.” At a hearing in 12/23 on a prior probation violation, “the trial court heard statements from defendant’s support person that defendant’s relapses into alcohol use were often caused by her relationship with her husband. Defendant’s probation officer stated that there was alcohol in defendant’s home and that defendant’s ‘husband was not a supporter of her sobriety.’” After that hearing the trial court amended the probation order to prohibit defendant from having contact with her husband. The court noted that while neither defendant nor her husband requested the no-contact order, her statements indicated she recognized “the necessity of the no-contact condition” when it was imposed. Her “husband was identified as a barrier to defendant’s sobriety based on reasonable inferences from the record, and with alcohol being identified as the major barrier to defendant’s rehabilitation and a cause of her recidivism, ordering no contact with [her] husband served the purpose of rehabilitation.” The court held that the condition fell within the range of principled outcomes. It also held that the trial court did not commit plain error when it “reimposed defendant’s monetary obligations from her original sentence and probation order” after expressly indicating it was relying on the reasons stated at the original sentencing. But the court remanded for the ministerial correction of the obvious clerical error as to the waived late fee in the JOS. Affirmed but remanded.

Sufficiency of the evidence for an AWIM conviction; Intent; People v. Stevens; People v Everett; Credibility; Sentencing; Proportionality of a within-guidelines sentence; People v Ventour; Mitigating circumstances; Waived OV 6 scoring issue

Holding that there was sufficient evidence of intent to support defendant’s AWIM conviction and that his within-guidelines sentence was reasonable and proportionate, the court affirmed. The case arose from his firing a shotgun at his wife (DR). He was sentenced to 15 to 30 years for his AWIM conviction. He argued there was insufficient evidence of intent to support that conviction. The court disagreed, concluding “that the jury was presented with more than sufficient evidence from which it could be inferred that defendant had the intent to kill DR.” While he asserted “he never expressed a plan to kill DR, such explicit statements are not necessary because minimal circumstantial evidence is sufficient to prove intent.” The circumstances of the assault and his actions after it “supported an inference of intent to kill. First and foremost, an intent to kill can be inferred by [his] use of a deadly weapon.” He grabbed a single-barrel shotgun that he kept in his bedroom closet, “loaded it, and proceeded toward DR’s room. [He] knew that DR was staying in the guest bedroom and fired the shotgun as she opened the door. The trajectory of the shot was toward the center mass of the average person, and the buckshot fired from the shotgun was more than capable of killing. Further, after firing the shotgun, defendant continued to advance and jammed the barrel of the gun between the door and doorframe.” In addition, his “extensive lies and attempts to hide what happened support an inference that he had the intent to kill. After shooting at DR, defendant immediately began what he himself described as a ‘cover-up.’” The court noted that the jury was able to assess his “credibility and found his testimony that he did not have a plan to kill DR not credible.” The court found that assessment “more than reasonable given the disparity between defendant’s story immediately after the incident and at trial. [His] story about what happened changed several times throughout the investigation: from claiming there was an intruder, to admitting he fired the shotgun and had tried to cover it up, to testifying that he had been dreaming about hunting when he fired the shotgun at DR.”

Divorce; Appellate jurisdiction; Final order; MCR 7.202(6); MCR 7.203(A)(1); Joint tax return; Collateral attack; Surman v Surman; Domestic relations attorney fees; MCR 3.206(D)(2)(b); Compensatory civil contempt; MCL 600.1721; Alpena Cnty Bd of Cnty Rd Comm’rs v Tadajewski
 

The court held that it lacked jurisdiction over defendant-wife’s appeal from a postjudgment divorce order requiring cooperation with filing a joint tax return and awarding attorney fees. The judgment of divorce required the parties to file a joint 2024 tax return, and the later order directed defendant to cooperate with the parties’ marital tax preparer and pay plaintiff $1,500 in attorney fees. The court first held that defendant could not challenge the joint-return requirement through an appeal from the October motion-to-compel order because the July judgment of divorce was the final order that included this requirement, and under Surman, a party “cannot wait until the entry of a subsequent final order to untimely appeal an earlier final order.” The court next held that it lacked jurisdiction over the tax-preparer directive because the October order did not dispose of all claims, did not involve custody, parenting time, or domicile, and any appeal from an attorney-fee order is “limited to the portion of the order” awarding fees. Finally, the court held that the attorney-fee award itself was not appealable of right because MCR 3.206(D)(2)(b), which applies when fees are incurred because a party “refused to comply with a previous court order,” implements the trial court’s contempt power. Relying on Tadajewski, the court concluded that such an award is “a form of compensatory civil contempt” under MCL 600.1721 and therefore “is not a final order appealable of right.” Dismissed for lack of jurisdiction.

No-fault insurance; PIP benefits; Motorcycle accident; Order of priority; MCL 500.3114(5); Exhaustion of higher-priority coverage; Mary Free Bed Rehab Hosp v Esurance Prop & Cas Ins Co; Uninsured motorist (UM) benefits; Underinsured motorist (UIM) benefits; Policy interpretation; Twichel v MIC Gen Ins Corp; Named insured; Covered auto

The court held that plaintiff could pursue PIP benefits from a lower-priority insurer after exhausting higher-priority motorcycle-accident coverage, but that she was not entitled to UM/UIM benefits under the lower-priority insurer’s (Federated Reserve) policy. Plaintiff was injured while driving her motorcycle, and the first-priority insurer paid its $250,000 PIP medical-benefits limit and $50,000 bodily-injury liability limit. On appeal, the court first reversed summary disposition on plaintiff’s PIP claim against Federated Reserve. In Mary Free Bed, the court held that “the plain language of MCL 500.3114(5) allows an injured motorcyclist . . . to recover from such lower-priority insurers once coverage by a higher-priority insurer is exhausted.” The court there also explained that “nothing in the language of Section 3114(5), which sets out a sequential list of insurers, prohibits continuing down the priority ladder” if higher-priority coverage is inadequate. But the court here affirmed dismissal of plaintiff’s UM/UIM claims. Because UM/UIM coverage is not mandatory under the No-Fault Act, the policy was interpreted under ordinary contract principles. The court held that nonparty-Bruner Plumbing & Heating was the named insured, and because plaintiff’s motorcycle was owned by plaintiff rather than the corporation, it was not a “covered auto.” The court also held that plaintiff did not qualify under the broadened coverage endorsement because, even assuming a motorcycle was an auto, the expanded definition excluded any auto owned by the named individual or a family member, and the motorcycle was owned by plaintiff. Affirmed in part, reversed in part, and remanded.

School operating tax; Revised School Code; MCL 380.12b; MCL 380.1211; Qualifying school district; Community school district; Operating obligations; Emergency loan; Bond debt; Revolving-fund debt; “School operating purposes”; Statutory interpretation; School Bond Qualification, Approval, & Loan Act (SBQALA); Detroit Public Schools (DPS); Detroit Public Schools Community District (the New District)

The court held that plaintiff-DPS may not continue levying an operating tax under MCL 380.12b and MCL 380.1211 after it repays its emergency loan in order to accelerate repayment of bond debt and revolving-fund debt. After a 2016 restructuring that established plaintiff-New District, DPS remained as a limited taxing entity to collect taxes and repay debt, while the New District operated Detroit’s public schools. The court first agreed with plaintiffs that “debt” under MCL 380.12b is broad enough to include the emergency loan, revolving-fund debt, and bond debt. But it held that MCL 380.12b(3)(b) did not expand DPS’s authority to levy an operating tax beyond MCL 380.1211’s terms and that statute limits the tax to “school operating purposes.” The court reasoned that “school operating purposes” generally refers to day-to-day school operations and maintenance, not “any school-related expenditure,” because otherwise the statute’s listed examples would be unnecessary. The court next held that repayment of the emergency loan qualified as an operating purpose because MCL 380.1211(10)(j) expressly includes “repayment of an emergency loan,” but that bond debt and revolving-fund debt did not qualify because they were not “deficiencies in operating expenses for the preceding year or preceding years.” The court emphasized that the SBQALA separately authorizes a millage for bond and revolving-fund debt, suggesting the operating tax “is not available for this purpose.” Finally, the court rejected plaintiffs’ argument that the ruling would disrupt ordinary school financing, explaining that the issue was limited to whether DPS, as a dissolving qualifying district with no remaining operating functions after the emergency loan is repaid, may continue levying the operating tax. Affirmed.

School operating tax; Revised School Code; MCL 380.12b; MCL 380.1211; Qualifying school district; Community school district; Operating obligations; Emergency loan; Bond debt; Revolving-fund debt; “School operating purposes”; Statutory interpretation; School Bond Qualification, Approval, & Loan Act (SBQALA); Detroit Public Schools (DPS); Detroit Public Schools Community District (the New District)

The court held that plaintiff-DPS may not continue levying an operating tax under MCL 380.12b and MCL 380.1211 after it repays its emergency loan in order to accelerate repayment of bond debt and revolving-fund debt. After a 2016 restructuring that established plaintiff-New District, DPS remained as a limited taxing entity to collect taxes and repay debt, while the New District operated Detroit’s public schools. The court first agreed with plaintiffs that “debt” under MCL 380.12b is broad enough to include the emergency loan, revolving-fund debt, and bond debt. But it held that MCL 380.12b(3)(b) did not expand DPS’s authority to levy an operating tax beyond MCL 380.1211’s terms and that statute limits the tax to “school operating purposes.” The court reasoned that “school operating purposes” generally refers to day-to-day school operations and maintenance, not “any school-related expenditure,” because otherwise the statute’s listed examples would be unnecessary. The court next held that repayment of the emergency loan qualified as an operating purpose because MCL 380.1211(10)(j) expressly includes “repayment of an emergency loan,” but that bond debt and revolving-fund debt did not qualify because they were not “deficiencies in operating expenses for the preceding year or preceding years.” The court emphasized that the SBQALA separately authorizes a millage for bond and revolving-fund debt, suggesting the operating tax “is not available for this purpose.” Finally, the court rejected plaintiffs’ argument that the ruling would disrupt ordinary school financing, explaining that the issue was limited to whether DPS, as a dissolving qualifying district with no remaining operating functions after the emergency loan is repaid, may continue levying the operating tax. Affirmed.

Termination under §§ 19b(3)(c)(i), (g), & (j); Reasonable reunification efforts; In re Hicks/Brown; Services; Failure to benefit from service plan; In re Smith; Children’s best interests; Stability

The court held that the DHHS made reasonable reunification efforts, that §§ (c)(i), (g), and (j) were satisfied, and that termination was in the children’s best interests. The children were removed because respondents-parents’ mental health instability interfered with safe parenting. Although respondents initially improved enough to receive unsupervised weekend visits, their progress was not sustained. On appeal, the court first rejected respondents’ reasonable-efforts argument because the DHHS offered numerous services, including psychological evaluations, life-skills and parenting classes, budgeting assistance, food-stamp referrals, and in-home support. The court emphasized that the DHHS’s duty extends only to “efforts that are reasonable,” and respondents had a “commensurate responsibility” to participate in and benefit from services. The court next held that statutory grounds were established because respondents ended the case “where they began” and showed they could not sustain improvements. Although they cleaned the home briefly and removed weapons and chemicals, the children returned from visits “tired, hungry, and dirty,” the home again became cluttered, and respondents continued “inappropriate, bizarre, and inattentive behavior” during visits. The court reasoned that respondents participated in services but “failed to show that they benefited from services,” and under Smith, failure to benefit supported findings that they could not provide proper care and that the children would be harmed if returned. The court also held that the harm under § (j) included emotional harm because the children’s therapists testified they would be harmed by returning to an unstable environment. Finally, the court held that termination was in the children’s best interests because respondents lacked stable parenting ability, the children were thriving in care, all professionals supported termination, and the oldest child testified that he did not want to return because “[i]t hasn’t really changed.” Affirmed.

Child’s removal; Reasonable efforts to prevent removal; MCR 3.965(C)(4); Sufficient findings before ordering removal; MCR 3.965(C)(2) & (3); In re Williams; Plain error review

The court held that the referee did not clearly err in finding that DHHS made reasonable efforts to prevent respondent-mother’s child’s removal from her home. While the trial court erred in failing to make specific findings to support its finding under MCR 3.965(C)(2)(e), the court concluded that given “the specific facts of this case,” this error did not seriously affect the fairness of the proceedings. Thus, it affirmed the removal order. As to reasonable efforts, “respondent had a prior history of intervention. She was involved with DHHS in 2023 and completed services, but at the time of” the current case, she “still had the same issues with managing the child’s behavior.” She and the DHHS agreed to “verbal and written safety plans to keep the child safe, but respondent did not comply with them. Although [she] had a comparatively brief period to work with services before the child was removed, during that time respondent was reluctant to participate in services and the petition laid out specific incidents that occurred between June 2 and 12.” The court found that this evidence supported “the referee’s conclusion both that DHHS made reasonable efforts to teach respondent safe parenting and provide her resources and that respondent was not interested in the help.” As to the five findings a trial court must make before placing a child in foster care, the court concluded that the referee’s findings as to MCR 3.965(C)(2)(a)-(d) were sufficient and supported by the record. As to (e), it agreed with respondent that there were no specific findings in the record “to support the referee’s ultimate finding that placement away from the home would be adequate to safeguard the child’s welfare.” But based on testimony from the DHHS’s services specialist, the court was “not convinced that, had the referee made a specific finding under MCR 3.965(C)(2)(e), the outcome of” the proceedings would have been different. The court noted that “violation of a technical provision of a court rule is not necessarily a violation of constitutional magnitude.” The referee here “did find that the child’s placement away from the home was adequate to safeguard the child’s welfare; it simply did not provide explicit findings in support.”