Title III of the Civil Rights Act of 1960 (CRA); The National Voter Registration Act (NVRA); The Help America Vote Act (HAVA); Michigan’s “qualified voter file” (MCL 168.509m(2)(b) & 168.509o(1)); Whether Michigan’s qualified voter file is subject to Title III; Whether the government complied with 52 USC § 20703’s requirements

[This appeal was from the WD-MI.] The court held that defendant-Michigan Secretary of State Benson did not violate Title III by refusing to produce Michigan’s unredacted qualified voter file at the federal government’s demand. The government demanded that Benson provide the state’s voter rolls, and “also the dates of birth, partial social security numbers, and driver’s license numbers of every” Michigan registered voter. Benson provided the public version of Michigan's qualified voter file, but no more. The government sued to compel her to produce the unredacted records. The district court dismissed the case, finding no government authority under Title III. This case arose following issuance of an Executive Order directing the Attorney General to “prioritize enforcement of” certain statutes to restrict non-citizens from voting in federal elections, and to enforce the NVRA and HAVA’s “‘list maintenance requirements.’” On appeal, the court reviewed federal laws affecting the States’ conduct of federal elections. It held that Michigan’s qualified voter file did not fall under Title III where “Benson did not acquire, obtain, or receive the qualified voter file from a third party. Instead, Michigan officials created it themselves.” The file “is an internally generated electronic database, not a record acquired from an outside source.” Further, that “Michigan election officials and others must constantly change information in the qualified voter file” showed that it was not subject to Title III. While Title III requires officials to “retain and preserve” records, the NVRA and the “HAVA require Michigan election officials to alter the qualified voter file routinely as part of their ‘reasonable effort[s]’ to ensure accuracy.” The court concluded that it “should not adopt a reading that would place election officials in violation of one federal law for trying to comply with others.” While the government cited an opinion from the Department of Justice OLC, which was issued “the day before oral argument here,” the court rejected it as it was “not contemporaneous with the passage of Title III” and it conflicted with Title III’s plain language. Additionally, the court held that the Title III claim failed because the government did not comply with § 20703, which required it “to submit a demand to Benson containing a statement of both the basis and purpose of its request.” As a result, “Benson did not violate Title III by refusing to produce the unredacted qualified voter file.” Affirmed.

Search & seizure; Motion to suppress; Traffic stop; Articulable & reasonable suspicion; People v Moorman; People v Pagano

Holding that the trial court erred in ruling that reasonable suspicion existed for the traffic stop, the court reversed its denial of defendant’s motion to suppress evidence seized as a result of the stop, and remanded. The prosecution “only offered body camera footage from the officers at the traffic stop to prove reasonable suspicion. Even though the officer stated in the body camera footage that he heard yelling, no yelling was audible in the footage. Further, the video does not show any traffic violations or other signs of criminal activity when the officer initiated the stop, and the officer did not state—on video or through testimony—what potential violation formed the basis for the stop.” The court noted that yelling in a vehicle, by itself, “is not a crime. Assuming that defendant’s yelling was the officer’s reason for initiating the traffic stop, that activity alone without any other indication of criminal activity is insufficient for reasonable suspicion; rather, it is akin to a ‘hunch’ that something might be amiss.” An officer is required to have “‘a particularized and objective basis for the suspicion of criminal activity,’ which is more than just a ‘hunch.’” Further, once defendant in this case “explained the reasoning for the yelling, the record does not reflect the reason why the officer requested identification and continued the stop.” The court held that because the prosecution failed to “meet its burden for proving that there was an exception to the warrant requirement, the evidence collected from that stop is inadmissible.”

Assault with intent to do great bodily harm (AWIGBH); Sufficiency of the evidence; Intent; People v Stevens; Sentencing; OV 7; Excessive brutality; People v Lydic; OV 8; Captivity; People v Allen

The court held that sufficient evidence supported defendant’s AWIGBH conviction and that OVs 7 and 8 were properly scored. He was convicted after assaulting his father, who was hard of hearing, in the father’s home. On appeal, the court first held that the prosecution presented sufficient evidence of intent to do great bodily harm because defendant “hit” the victim, “grabbed” him by the throat, tried to “throw [him] out the window” several times, and repeatedly told him “[i]t’s time for you to die.” The court reasoned that defendant’s “repeated hitting, punching, choking, and attempts to throw” the victim out the window satisfied the “minimal circumstantial evidence” required to prove intent under Stevens. The court next held that OV 7 was properly scored at 50 points because defendant’s conduct went beyond the minimum necessary to commit AWIGBH. The victim was hospitalized for two days, the assault was “stop and go,” defendant prevented him from calling for help, and the repeated death threats were “specifically intended to threaten” him beyond the physical assault. Relying on Lydic, the court held this supported a finding of excessive brutality or similarly egregious conduct. Finally, the court held that OV 8 was properly scored at 15 points because defendant held the victim captive by grabbing him by the throat, preventing him from leaving or calling 911, and requiring him to wait until defendant had “passed out a little” before he could escape and seek help. Affirmed.

Title III of the Civil Rights Act of 1960 (CRA); The National Voter Registration Act (NVRA); The Help America Vote Act (HAVA); Michigan’s “qualified voter file” (MCL 168.509m(2)(b) & 168.509o(1)); Whether Michigan’s qualified voter file is subject to Title III; Whether the government complied with 52 USC § 20703’s requirements

[This appeal was from the WD-MI.] The court held that defendant-Michigan Secretary of State Benson did not violate Title III by refusing to produce Michigan’s unredacted qualified voter file at the federal government’s demand. The government demanded that Benson provide the state’s voter rolls, and “also the dates of birth, partial social security numbers, and driver’s license numbers of every” Michigan registered voter. Benson provided the public version of Michigan's qualified voter file, but no more. The government sued to compel her to produce the unredacted records. The district court dismissed the case, finding no government authority under Title III. This case arose following issuance of an Executive Order directing the Attorney General to “prioritize enforcement of” certain statutes to restrict non-citizens from voting in federal elections, and to enforce the NVRA and HAVA’s “‘list maintenance requirements.’” On appeal, the court reviewed federal laws affecting the States’ conduct of federal elections. It held that Michigan’s qualified voter file did not fall under Title III where “Benson did not acquire, obtain, or receive the qualified voter file from a third party. Instead, Michigan officials created it themselves.” The file “is an internally generated electronic database, not a record acquired from an outside source.” Further, that “Michigan election officials and others must constantly change information in the qualified voter file” showed that it was not subject to Title III. While Title III requires officials to “retain and preserve” records, the NVRA and the “HAVA require Michigan election officials to alter the qualified voter file routinely as part of their ‘reasonable effort[s]’ to ensure accuracy.” The court concluded that it “should not adopt a reading that would place election officials in violation of one federal law for trying to comply with others.” While the government cited an opinion from the Department of Justice OLC, which was issued “the day before oral argument here,” the court rejected it as it was “not contemporaneous with the passage of Title III” and it conflicted with Title III’s plain language. Additionally, the court held that the Title III claim failed because the government did not comply with § 20703, which required it “to submit a demand to Benson containing a statement of both the basis and purpose of its request.” As a result, “Benson did not violate Title III by refusing to produce the unredacted qualified voter file.” Affirmed.

Child custody; Parenting time; The statutory best-interest factors (MCL 722.23); Supervised parenting time; MCL 722.27a(9); School district change; Distinguishing Pierron v Pierron; Motion rulings; Judicial bias; Kern v Kern-Koskela

The court held that the trial court did not err in decreasing defendant-father’s parenting time with the parties’ child (LR) and by requiring it to be supervised. Further, the trial court did not err in allowing LR to change school districts, and the court found no error as to defendant’s claims related to various motion rulings. Finally, it rejected his judicial bias claim. Thus, it affirmed the divorce judgment granting plaintiff-mother physical custody of LR. “Because the trial court’s custody and parenting-time decisions altered LR’s established custodial environment with both parents, [it] had to find by clear and convincing evidence that the changes were in LR’s best interests under MCL 722.23.” It conducted a trial at which the “parties had the opportunity to present evidence and arguments about custody and parenting time.” The court concluded that the record did “not establish that the trial court made findings of fact against the great weight of the evidence because the evidence did not clearly preponderate in the opposite direction.” As to the ruling that defendant’s parenting time should be supervised, “MCL 722.27a(9) does not require a particular showing or burden of proof for the trial court to exercise its discretion in this regard, so no error occurred.” As to the school district change, the court found that this “ruling logically followed its grant of physical custody of LR to plaintiff because” the new district was where she lived. The court noted that “defendant took the position that LR should not attend school in Wayland in his objection to the Friend of the Court’s recommended order, which was one of the issues the trial court stated that it would consider at trial along with other matters related to the divorce and custody.” The record did not support his claim that he lacked notice or an opportunity to be heard on the issue. While he contended that the trial court violated the court’s decision in Pierron, the court noted the differences between the cases. Defendant failed to show “that the trial court’s decision was ‘palpably and grossly violative of fact and logic,’” or that its “findings were against the great weight of the evidence or founded on a clear legal error[.]” Finally, nothing “in the trial court’s questioning or comments suggests that [it] was in any way biased in favor of plaintiff or against defendant.”

Child custody; Established custodial environment (ECE); MCL 722.27(1)(c); Sabatine v Sabatine; Child’s best interests; MCL 722.23; Contempt; Parent-child relationship; Parenting time; MCL 722.27a; Joint custody; MCL 722.26a

The court held that the trial court did not err by awarding defendant-father sole legal custody and primary physical custody of the child and limiting plaintiff-mother’s parenting time. After the parties moved from California to Michigan, plaintiff repeatedly pursued abuse allegations against defendant, withheld parenting time, and sought relief in multiple jurisdictions, while investigations into defendant were closed without action. On appeal, the court first held that the trial court’s finding that the child had an ECE only with defendant was not against the great weight of the evidence. The relevant custodial environment is the one existing when the custody decision is made, and under Sabatine, it must be viewed “from the child’s perspective, not the parents’ perspective.” Although plaintiff had been the child’s primary caretaker earlier, that environment “no longer existed” because plaintiff’s conduct created instability and defendant had cared for the child for approximately 10 months. The court next held that the best-interest findings were supported because the trial court linked plaintiff’s contempt and order violations to their effect on the child, specifically plaintiff’s effort “to thwart defendant’s parenting time and alienate him” from the child. It also found that the trial court did not improperly punish plaintiff but focused on the child’s best interests. Finally, the court upheld the parenting-time order because plaintiff had a history of violating orders and there was concern she could leave the country with the child. Affirmed.

No-fault insurance; Personal protection insurance (PIP) benefits; MCL 500.3105(1); Use of a motor vehicle as a motor vehicle; Transportational function; McKenzie v Auto Club Ins Ass’n; Causation; Thornton v Allstate Ins Co; Summary disposition; Directed verdict; Great weight of the evidence

The court held that the trial court properly denied defendant-insurer summary disposition and a directed verdict, and that the jury’s verdict awarding PIP benefits was supported by the evidence. Plaintiff was severely injured when a firework exploded inside his moving vehicle after, according to his testimony, he dropped a hot car cigarette lighter while trying to return it to the socket after the vehicle hit rumble strips. On appeal, the court first held that summary disposition was properly denied because plaintiff’s sworn testimony created a factual question whether his injuries arose out of the “operation or use of his motor vehicle as a motor vehicle.” Viewing the evidence most favorably to plaintiff, a reasonable jury could find that the vehicle’s travel over rumble strips caused him to drop the lighter, which lit the firework, and that because he was operating a moving vehicle, he “could not simply get out of the explosive range.” The court held this was more than incidental or fortuitous because the motor vehicle was “instrumental” in the chain of events, and the injuries were “closely related to the motor vehicle’s transportational function” under McKenzie. The court also rejected defendant’s reliance on cases involving a parked car or homeowner’s policy exclusions because those cases did not involve testimony that operation of a moving vehicle caused the lighter to ignite the firework and prevented evacuation. For the same reasons, the court held that a directed verdict was properly denied because reasonable jurors could conclude plaintiff’s injuries arose from the vehicle’s use as a motor vehicle. Finally, the court upheld the verdict because there was competent evidence supporting the jury’s finding, and the No-Fault Act is remedial and “‘must be construed liberally’” in favor of intended beneficiaries. Affirmed.

No-fault insurance; Personal protection insurance (PIP) benefits; MCL 500.3105(1); Use of a motor vehicle as a motor vehicle; Transportational function; McKenzie v Auto Club Ins Ass’n; Causation; Thornton v Allstate Ins Co; Summary disposition; Directed verdict; Great weight of the evidence

The court held that the trial court properly denied defendant-insurer summary disposition and a directed verdict, and that the jury’s verdict awarding PIP benefits was supported by the evidence. Plaintiff was severely injured when a firework exploded inside his moving vehicle after, according to his testimony, he dropped a hot car cigarette lighter while trying to return it to the socket after the vehicle hit rumble strips. On appeal, the court first held that summary disposition was properly denied because plaintiff’s sworn testimony created a factual question whether his injuries arose out of the “operation or use of his motor vehicle as a motor vehicle.” Viewing the evidence most favorably to plaintiff, a reasonable jury could find that the vehicle’s travel over rumble strips caused him to drop the lighter, which lit the firework, and that because he was operating a moving vehicle, he “could not simply get out of the explosive range.” The court held this was more than incidental or fortuitous because the motor vehicle was “instrumental” in the chain of events, and the injuries were “closely related to the motor vehicle’s transportational function” under McKenzie. The court also rejected defendant’s reliance on cases involving a parked car or homeowner’s policy exclusions because those cases did not involve testimony that operation of a moving vehicle caused the lighter to ignite the firework and prevented evacuation. For the same reasons, the court held that a directed verdict was properly denied because reasonable jurors could conclude plaintiff’s injuries arose from the vehicle’s use as a motor vehicle. Finally, the court upheld the verdict because there was competent evidence supporting the jury’s finding, and the No-Fault Act is remedial and “‘must be construed liberally’” in favor of intended beneficiaries. Affirmed.

Use variance application; Review of a Zoning Board of Appeals’ (ZBA) decision; Pegasus Wind, LLC v Tuscola Cnty; The Michigan Zoning Enabling Act; MCL 125.3606(1); Burden of establishing unnecessary hardship

The court held that the circuit court did not commit reversible error in upholding respondent-City’s ZBA’s denial of petitioner’s request for a use variance. Petitioner sought to use the property in question as a used car dealership. The property had been previously used for this purpose but the “use lapsed under the zoning ordinance, necessitating petitioner’s application for a use variance to resume” the use. On appeal, it primarily argued “that the ZBA was compelled to grant a use variance, asserting that substantial evidence established unnecessary hardship because (a) new car dealerships are permitted without restriction under respondent’s ordinances, whereas used car dealerships are not, and (b) the subject property lacks any other viable economic use.” However, after reviewing the certified record from the ZBA’s proceedings, and the circuit court’s review of the appeal, the court was “not left with a definite and firm conviction that the circuit court erred in affirming the ZBA’s denial of the” petition. The only hardship petitioner identified was “its inability to operate its preferred automotive-related business.” It failed to identify any record evidence showing “that ‘the site cannot reasonably be used for any of the uses allowed within the current zoning district designation.’” The zoning ordinance placed “the burden of establishing unnecessary hardship squarely on the petitioner, providing: ‘A use variance may be allowed by the ZBA only in cases where the applicant has shown a unnecessary hardship in the official record of the hearing.’” The court found that the certified record did not contain any “indication that petitioner presented evidence sufficient to establish the requisite unnecessary hardship.” As it failed to show on appeal that the record contained sufficient evidence “to satisfy its burden before the ZBA,” it also did not “establish a basis for granting the use variance” and failed to show that the circuit court did not apply the correct legal principles or “misapprehended or grossly misapplied the substantial evidence test in reviewing the ZBA’s factual findings.” Affirmed.