First Amendment retaliation claim under 42 USC § 1983; Whether a “no-probable cause requirement” applies in the context of a claim based on a quo warranto petition filed by a district attorney; Whether the quo warranto petition lacked probable cause; Discovery

The court held that defendants-city and individuals were properly granted summary judgment on plaintiff-Amacher’s § 1983 First Amendment retaliation claim where she did not establish that the quo warranto petition that was the basis of her claim lacked “probable cause,” an essential element. Amacher served as an alderman on defendant-Tullahoma’s City Council. After she moved out of the City, the district attorney and two residents sought a writ of quo warranto in state court challenging her right to hold her office based on the City’s residency requirement. The state court ruled for Amacher on the basis she had done enough to show that she planned to return to the City. She then sued the City, the two residents, the City’s mayor, and its administrator under § 1983, claiming that the residency dispute was only a pretext for First Amendment retaliation arising from her political and other speech. The district court granted defendants summary judgment. On appeal, the issue was “whether a no-probable-cause requirement applies in the context of the quo warranto petition that the district attorney filed against Amacher.” The court held that it was “an element of the claim that plaintiff must prove.” Amacher was required to show that the alleged retaliatory lawsuit lacked probable cause and that defendants did not reasonably believe that the quo warranto action had at least “a chance” of succeeding. The court concluded that the quo warranto petition was “based on reasonable concerns about her residency[,]” and the judge in the state case, while rejecting the petition, acknowledged that it “presented a fair ground for disqualifying her[.]” Thus, there was probable cause to support the petition. The court “save[d] for another day whether a fair-grounded effort to unseat an elected official amounts to an ‘adverse action’ in the first place.” Finally, it found no abuse of discretion in the district court’s discovery rulings. Affirmed.

First Amendment retaliation claim under 42 USC § 1983; Whether a “no-probable cause requirement” applies in the context of a claim based on a quo warranto petition filed by a district attorney; Whether the quo warranto petition lacked probable cause; Discovery

The court held that defendants-city and individuals were properly granted summary judgment on plaintiff-Amacher’s § 1983 First Amendment retaliation claim where she did not establish that the quo warranto petition that was the basis of her claim lacked “probable cause,” an essential element. Amacher served as an alderman on defendant-Tullahoma’s City Council. After she moved out of the City, the district attorney and two residents sought a writ of quo warranto in state court challenging her right to hold her office based on the City’s residency requirement. The state court ruled for Amacher on the basis she had done enough to show that she planned to return to the City. She then sued the City, the two residents, the City’s mayor, and its administrator under § 1983, claiming that the residency dispute was only a pretext for First Amendment retaliation arising from her political and other speech. The district court granted defendants summary judgment. On appeal, the issue was “whether a no-probable-cause requirement applies in the context of the quo warranto petition that the district attorney filed against Amacher.” The court held that it was “an element of the claim that plaintiff must prove.” Amacher was required to show that the alleged retaliatory lawsuit lacked probable cause and that defendants did not reasonably believe that the quo warranto action had at least “a chance” of succeeding. The court concluded that the quo warranto petition was “based on reasonable concerns about her residency[,]” and the judge in the state case, while rejecting the petition, acknowledged that it “presented a fair ground for disqualifying her[.]” Thus, there was probable cause to support the petition. The court “save[d] for another day whether a fair-grounded effort to unseat an elected official amounts to an ‘adverse action’ in the first place.” Finally, it found no abuse of discretion in the district court’s discovery rulings. Affirmed.

Permit to construct on wetlands issued by the Michigan Department of Environment, Great Lakes, & Energy (the Department); MCL 324.30304; First Amendment challenge to the indemnification clause in the permit; Whether the Supreme Court’s “unconstitutional-conditions test” applied to the Takings Clause also applies to the Petition Clause; Scope of the indemnification clause; Whether Michigan’s sovereign immunity barred plaintiffs’ state-law claim; Ex Parte Young; Pennhurst State Sch & Hosp v Halderman; Congressional abrogation; Allen v Cooper

[This appeal was from the WD-MI.] The court held that the indemnification clause in the state wetlands construction permit issued to plaintiffs-Gmeiners was constitutional where it only required them to pay for harms resulting from their own conduct. Michigan law required plaintiffs to obtain a permit to create a walking path for their property on Torch Lake because the pathway would have an adverse effect on the wetlands on the property. They were eventually granted the permit. At issue was an indemnification clause requiring plaintiffs to “‘indemnify and hold harmless’ Michigan for ‘all claims or causes of action arising from’ the ‘acts or omissions’ that the Gmeiners took in ‘connection with [the] permit.’” They interpreted the clause as relieving “Michigan of liability even for its own misconduct in a suit they might bring against the State.” They sued, alleging a First Amendment right to petition claim, and a state-law ultra vires claim challenging the Department’s authority to impose an indemnification clause. The district court dismissed all claims at the pleadings stage. On appeal, the court noted that “the Supreme Court has never extended its ‘two-part’ unconstitutional-conditions test in the takings context to other rights.” But while that test may not apply to the Petition Clause, the court assumed without deciding that it does. It also noted that “some Justices have doubted whether the right to ‘petition’ includes the right to sue.” Assuming it does, the court held that its “narrow view of the indemnification clause place[d] it well within the States’ ‘regulatory tradition.’” The court concluded that the clause required plaintiffs “to pay only for ‘harms resulting from’ their conduct, so it” posed no unconstitutional-conditions problem, even under the takings test. It further held that Michigan’s sovereign immunity barred plaintiffs’ state-law ultra vires claim, and no exception saved it. Affirmed.

Motion to suppress defendant’s police statements; Custodial interrogation; Miranda v Arizona; Effect of an invocation of the right to counsel; Edwards v Arizona; Whether defendant affirmatively reinitiated contact; People v Tanner; Functional equivalent of questioning; Rhode Island v Innis

Holding that the trial court correctly granted defendant’s motion to suppress his police statements made after he invoked his right to counsel, the court reversed the Court of Appeals judgment that reversed the trial court’s suppression order, and remanded. He initially “waived his Miranda rights but later asserted his right to appointed counsel.” He was not provided with counsel. Rather, police attempted to obtain counsel for him but “returned empty-handed, over two and a half hours later, telling defendant that he did not have an attorney and could not use the money taken from him during arrest to obtain one.” Specifically, he “was told: ‘You don’t got one,’ ‘You don’t have a lawyer,’ and ‘We tried to call one. Ain’t nobody available and you ain’t got no money.’ These statements after the invocation of counsel can reasonably be understood . . . as suggesting that defendant’s right to have an attorney present during questioning was dependent on his ability to retain counsel through his own funds. [They] are not consistent with Miranda’s assertions that suspects have a right to counsel and that, if they cannot afford counsel, counsel will be provided.” The court noted that the police “did not err because they failed to provide an attorney.” Rather, the error was in “suggesting that defendant could not be questioned with an attorney present because he did not have the money to hire one.” The court further found that he did not reinitiate contact. He “asked, ‘So what’s going on?’ In the context of a discussion about whether, having invoked his right to counsel, he had an attorney and whether he could use the money he had for an attorney, the” court concluded this question could not “reasonably be considered an affirmative request to reinitiate the interrogation without an attorney.” And it found that, in response to his question, “police engaged in the functional equivalent of questioning.” They continued the theme from before his “invocation of counsel, where they suggested that defendant’s story had holes and did not make sense. [He] was told that because he asked for an attorney, ‘the story you got is the story we gon’ go with.’” When he said he was confused, he was told “that waiver of his rights was the way to tell another story and that otherwise he would be stuck with the prior story.” Instead of honoring his invocation of “counsel, police engaged in further exchanges . . . to prompt him to give a different story.”

Dissenting, Justice Zahra found that the record indicated “there were no violations of defendant’s constitutional rights.” He agreed with the Court of Appeals majority that “defendant’s decision to waive his rights was made voluntarily, knowingly, and intelligently and that the officers did not violate” his constitutional rights to be free from self-incrimination.

Sentencing; Scoring of OV 7; MCL 777.37(1)(a); People v Hardy; Departure sentence; MCL 769.34(3)

Holding that the trial court did not err in scoring 50 points for OV 7, and that defendant’s departure sentence was proportional to the offense and the offender, the court affirmed. He was convicted of CSC II. His minimum guidelines range was 29 to 57 months. The trial court “addressed defendant’s repeated and escalating conduct as well as [his] use of his police uniform, weapon, and car to cajole students into sexual conduct, and” upwardly departed from the guidelines to sentence him to 9 to 15 years. As to his challenge to the scoring of OV 7, the court concluded “that when a sworn law enforcement officer, who for years is assigned as a school safety officer and school resource officer, regularly preys upon an adolescent for about two years when the victim is in high school, and commits multiple acts of sexual abuse, while on school property, in the school building in full uniform and armed with a weapon, in a private place, against the student, all under the guise of helping, mentoring, and tutoring the student, this conduct was designed to substantially increase the fear and anxiety of the victim so as to allow this brutal and anxiety-causing conduct to continue.” As a result, the “trial court’s consideration of the facts and OV 7 at sentencing was appropriate, particularly where, as here, defendant’s ‘grooming’ of his victim continued during the offense conduct.” The court added that he “would not be entitled to resentencing even if we agreed with his position on this issue because scoring OV 7 at zero points would not change his placement in the sentencing grid.” He also asserted that the trial court erred in imposing its departure sentence “for improper reasons.” But the court noted that defendant “engaged in multiple instances of criminal sexual conduct that continued for years. The trial court reasonably felt that the offense variables did not give sufficient weight to [his] pattern of using his status as a police officer in a school to groom and manipulate students, or the extent of defendant’s abuse of the victims, which is a valid reason for a departure under MCL 769.34(3)(b).”

Compassionate release; 18 USC § 3582(c)(1)(A)(i); “Extraordinary & compelling” circumstances; United States v Hunter; USSG § 1B1.13(b); Effect of Sentencing Commission policy statements; Rutherford v United States; United States v Bricker

The court reversed the district’s court’s ruling granting defendant-Hall compassionate release, holding that it abused its discretion where “youth and rehabilitation” do not constitute “extraordinary and compelling” reasons for compassionate release under the statute. Hall was a gang member who participated in murders and other crimes, and killed a woman himself. He was 22 years old when he received a 30-year sentence for racketeering activities (including drug trafficking, robbery, murder, bribery, and extortion) and for conspiracy to use and carry a firearm during and in relation to a crime of violence. He unsuccessfully filed motions seeking an early release, including a prior motion for compassionate release. He then filed this second motion for compassionate release. The district court granted his motion in part, ruling “that his ‘youth and ability for rehabilitation’ constituted an ‘extraordinary and compelling’ justification” to grant relief. It denied him immediate release but reduced his sentence by eight years. The government appealed. The court reviewed the parameters of § 3582(c)(1)(A)(i) and how it was affected by the First Step Act, noting that Congress specifically provided that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” In Hunter, the court held that “district courts can’t consider ‘youth’ or ‘sentencing disparities’ because ‘facts that existed at sentencing cannot later be construed as ‘extraordinary and compelling reasons’ to reduce a final sentence.” But there appeared to be some conflict between the court’s interpretation and the Sentencing Commission’s policy statement on “extraordinary and compelling,” § 1B1.13(b). The court held in Bricker that when its “pre-2023 interpretation of the compassionate-release statute conflicts with § 1B1.13(b), our interpretation wins.” And in Rutherford, the Supreme Court “endorsed this view.” The court agreed with the government here “that Hunter still controls.” And because it “rejected ‘youth’ and ‘rehabilitation’ in Hunter,” it rejected these factors here. “And to the extent that § 1B1.13(b)(5) would permit the district court’s analysis—in contravention of Hunter—Bricker tells us that Hunter’s interpretation of the compassionate-release statute prevails.”

Involuntary mental health treatment; Michigan Mental Health Code; Clinical certificate; Person requiring treatment; Ineffective assistance of counsel; Mootness; In re Tchakarova; Collateral legal consequences; In re Detmer/Beaudry

The court held that respondent’s appeal from an involuntary mental health treatment order was moot because the order had expired and no mootness exception applied. Respondent appealed an order requiring up to 180 days of combined hospitalization and assisted outpatient treatment, arguing his counsel was ineffective in several respects, including failing to challenge the lack of an initial clinical certificate and failing to pursue allegedly contradictory medical records. The court did not reach those claims because “[m]ore than 180 days” had passed since the order was entered, meaning it had expired. The court reasoned that a matter is moot when a ruling cannot have “a practical legal effect on the existing controversy,” and respondent identified no available relief the court could grant. It also held that the collateral-consequences exception did not apply because respondent pointed to “no collateral legal consequences” from the order. The court further held that the public-significance exception did not apply because respondent did not contend the issues were “of public significance and likely to recur while escaping judicial review.” Because the case presented only “abstract questions of law” with no practical legal effect, the appeal was dismissed as moot.

Cancellation of removal; Failure to meet 8 USC § 1252(d)’s exhaustion requirement; Ineffective assistance of counsel claim; Matter of Lozada (BIA); Kada v. Barr; Motion to reconsider under § 1229a(c)(6)(C); Motion to reopen under § 1229a(c)(7)(B); The government’s motion to reopen & dismiss; Board of Immigration Appeals (BIA); Immigration judge (IJ); Department of Homeland Security (DHS)

Because petitioner-Morris failed to comply with the procedural requirements for making an ineffective assistance claim to support his motion to reconsider and reopen as to cancellation of removal, the court held that the BIA did not err by denying his motion. The court also upheld the BIA’s denial of the government’s motion to reopen and dismiss where it was “unsupported.” Morris, who fled Liberia, was a lawful permanent resident who was convicted of embezzlement and firearm offenses. His counsel conceded removability and applied for cancellation of removal, which the IJ denied, an order affirmed by the BIA. Morris petitioned for review of that decision. He also moved to reconsider and reopen the case, asserting ineffective assistance of counsel and that his offense was not a removable firearms offense. The government also moved to reopen and dismiss. The BIA denied both motions. Morris petitioned for review of those decisions as well. The court held that it could not consider the removability claim where Morris did not exhaust his remedies as he failed to raise this issue before the BIA. As for the cancellation of removal, the court found that his challenges to the IJ’s, and the BIA’s, “ultimate decision to deny cancellation of removal are barred by § 1252(a)(2)(B).” The second petition centered on his compliance with the Lozada procedure for a claim of ineffective assistance. The parties disputed whether the copies of letters he attached to his motion to reconsider and reopen were sufficient “‘proof’ or ‘evidence’ of ‘fil[ing]’ required by Lozada.” The court had jurisdiction over this mixed question of fact and law, and reviewed for an abuse of discretion. It held that the BIA’s determination that the attachments were “insufficient to show Lozada compliance” was not an abuse of discretion. Morris “provided no postal documentation demonstrating that the photocopied letters and grievance forms had been sent to the addressees. Nor did his affidavit attest to doing so.” Failure to comply with Lozada’s requirements results in the forfeiture of an ineffective assistance claim. Finally, the court held that Morris’s claim related to the BIA’s denial of the government’s motion to reopen and dismiss failed on the merits where, as to reopening, the “DHS simply did not provide any new evidence” and as to dismissal, it “failed to explain what circumstances had changed.” The court dismissed Morris’s first petition for review and denied his second.

Premises liability; Condominium association; Short-term rental guest; Common area; Invitee; Licensee; Duty; Janini v London Townhouses Gabrielson v Woods Condo Ass’n, Inc; Stanley v Town Square Coop; First-out rule; Breach; Snow & ice; Kandil-Elsayed v F & E Oil, Inc; Quinlivan v The Great Atl & Pac Tea Co, Inc

In an issue of first impression, the court held that a short-term rental guest of a condominium unit owner is an invitee of the condominium association when injured in a common area maintained by the association. Plaintiff slipped and fell on ice in a condominium-complex parking lot while staying in a unit rented through Airbnb. The court first concluded the trial court erred by treating plaintiff as a licensee. It reasoned that Janini abrogated the relevant part of Gabrielson by rejecting the premise that condominium associations owe no premises-liability duty to unit owners in common areas and by analogizing the condominium association-co-owner relationship to the landlord-tenant relationship. Relying on Stanley, the court explained that part of the consideration paid to a condominium association supports maintaining common areas for unit owners and their guests. It held that “a short-term rental guest of a condominium unit owner is an invitee of the condominium association on the common elements of the premises that the association maintains.” The court next held that genuine issues of material fact existed as to breach. Although defendant’s snow-removal contractor had salted areas of the Village, plaintiff testified the parking lot was covered in ice, photographs showed ice in parts of the lot, and testimony suggested defendant’s board took “no responsibility for monitoring” the contractor’s work. The court concluded a jury had to decide whether defendant took “reasonable steps within a reasonable time” to protect invitees from the hazards of ice and snow. Reversed and remanded.

Involuntary mental health treatment; Michigan Mental Health Code; Clinical certificate; Person requiring treatment; Ineffective assistance of counsel; Mootness; In re Tchakarova; Collateral legal consequences; In re Detmer/Beaudry

The court held that respondent’s appeal from an involuntary mental health treatment order was moot because the order had expired and no mootness exception applied. Respondent appealed an order requiring up to 180 days of combined hospitalization and assisted outpatient treatment, arguing his counsel was ineffective in several respects, including failing to challenge the lack of an initial clinical certificate and failing to pursue allegedly contradictory medical records. The court did not reach those claims because “[m]ore than 180 days” had passed since the order was entered, meaning it had expired. The court reasoned that a matter is moot when a ruling cannot have “a practical legal effect on the existing controversy,” and respondent identified no available relief the court could grant. It also held that the collateral-consequences exception did not apply because respondent pointed to “no collateral legal consequences” from the order. The court further held that the public-significance exception did not apply because respondent did not contend the issues were “of public significance and likely to recur while escaping judicial review.” Because the case presented only “abstract questions of law” with no practical legal effect, the appeal was dismissed as moot.

Premises liability; Condominium association; Short-term rental guest; Common area; Invitee; Licensee; Duty; Janini v London Townhouses Gabrielson v Woods Condo Ass’n, Inc; Stanley v Town Square Coop; First-out rule; Breach; Snow & ice; Kandil-Elsayed v F & E Oil, Inc; Quinlivan v The Great Atl & Pac Tea Co, Inc

In an issue of first impression, the court held that a short-term rental guest of a condominium unit owner is an invitee of the condominium association when injured in a common area maintained by the association. Plaintiff slipped and fell on ice in a condominium-complex parking lot while staying in a unit rented through Airbnb. The court first concluded the trial court erred by treating plaintiff as a licensee. It reasoned that Janini abrogated the relevant part of Gabrielson by rejecting the premise that condominium associations owe no premises-liability duty to unit owners in common areas and by analogizing the condominium association-co-owner relationship to the landlord-tenant relationship. Relying on Stanley, the court explained that part of the consideration paid to a condominium association supports maintaining common areas for unit owners and their guests. It held that “a short-term rental guest of a condominium unit owner is an invitee of the condominium association on the common elements of the premises that the association maintains.” The court next held that genuine issues of material fact existed as to breach. Although defendant’s snow-removal contractor had salted areas of the Village, plaintiff testified the parking lot was covered in ice, photographs showed ice in parts of the lot, and testimony suggested defendant’s board took “no responsibility for monitoring” the contractor’s work. The court concluded a jury had to decide whether defendant took “reasonable steps within a reasonable time” to protect invitees from the hazards of ice and snow. Reversed and remanded.