The Americans with Disabilities Act (ADA); Denial of paid leave to attend a training course to obtain a guide dog; 42 USC §§ 12112(a) & (b)(5)(a); Failure-to-accommodate claim; Disparate-treatment claim; Whether defendants violated the Family & Medical Leave Act (FMLA) in denying paid leave

The court affirmed the district court’s grant of summary judgment for defendant-employer (Lakota Local School District) on plaintiff-Tumbleson’s ADA disparate-treatment and failure-to-accommodate claims, as well as her FMLA claim. It held that (1) she failed to offer evidence that Lakota treated nondisabled personnel more favorably, (2) “unpaid leave qualified as a ‘reasonable’ accommodation[,]” and (3) the FMLA in this case did “not allow her to substitute paid sick leave for the unpaid leave.” Tumbleson, who is both visually and hearing impaired, was an art teacher for Lakota. She requested three weeks leave to attend a training course on how to use a guide dog she had been matched with. She requested paid leave to attend the course. “Lakota denied her request for paid leave because this training did not qualify as a ‘personal illness’ under the district’s sick-leave policy. But it allowed her to take unpaid leave as an accommodation under” the ADA. Tumbleson sued for disparate treatment and failure-to-accommodate under the ADA. She also sued under the FMLA, alleging that Lakota improperly denied her request to use her accrued paid sick days in lieu of unpaid leave. The district granted Lakota summary judgment. On appeal, the court held that that she failed to show that Lakota treated “similarly situated,” nondisabled employees more favorably when they requested paid leave. She failed to “offer a single example of a nondisabled employee who received sick leave even when the employee’s proposed absence did not qualify for that leave.” The court also held that the unpaid-leave accommodation was reasonable. Tumbleson’s failure-to-accommodate claim could not succeed “because the ADA did not give her the right to her preferred accommodation.” Finally, the court held that her FMLA claim failed where she was only entitled to paid sick leave “if Lakota would ‘normally’ provide that leave under the circumstances” and she only provided “a bare-bones challenge to the district court’s conclusion that her guide-dog training did not qualify for paid leave under Lakota’s sick-leave policy.”

Sentencing for CSC IV convictions; Lifetime registration under the Sex Offenders Registration Act (SORA); Cruel or unusual punishment; People v Lymon (Lymon II); People v Kardasz; Proportionality; People v Lorentzen factors; Application of the 2021 SORA; Ex post facto punishment; Comparing the 2021 SORA with the 2011 SORA; People v Henriques (After Remand) (Unpub); Determination of SORA tier procedure; Sixth Amendment right to due process; Waiver by pleading no contest

The court rejected defendant’s claims that lifetime SORA registration for his CSC IV convictions was unconstitutionally cruel or unusual punishment. It also held that “applying the challenged 2021 SORA reporting requirements to” him did not constitute ex post facto punishment. Finally, by entering an unconditional plea of no contest, he waived his Sixth Amendment due process challenge, “as his no-contest pleas waived his right to challenge the factual basis of whether he committed a Tier III offense.” He pled no-contest to CSC IV counts involving minors. He was sentenced to 365 days in jail and ordered to comply with the SORA. On appeal, he argued that lifetime SORA registration was so disproportionate to his conviction of CSC IV “against a person under the age of 13 that it constitutes unconstitutionally cruel or unusual punishment both on its face and as applied to defendant. Kardasz has already rejected the argument that SORA is facially unconstitutional as cruel or unusual punishment, so defendant’s facial challenge must fail.” He also contended that lifetime registration was “a grossly disproportionate punishment as applied to his conviction for a single act of touching the clothed buttocks of a girl who was under the age of 13 as she ascended the stairs in front of him.’ The court disagreed. Applying the Lorentzen factors, it first concluded that the gravity of his offense factor did “not weigh in favor of disproportionality.” It noted that while he only pled no contest to a CSC IV charge, his “sexual contact with a person under 13 years old” satisfied the elements of CSC II. The other Lorentzen factors “were squarely addressed in Kardasz.” Considering them “as a whole, as in Kardasz, ‘the 2021 SORA is not cruel or unusual punishment either in all instances or as applied to defendant.’” Next, the court rejected his ex post facto “argument for three reasons. First,” he failed to “identify which of the 2021 SORA amendments he is attempting to avoid because it provides an increased punishment.” Second, the court considered “the 2021 addition of ‘internet identifiers’ as merely an upgraded term for” language in the 2011 disclosure requirements, “not as an increased punishment.” Third, the court noted that it addressed this argument in Henriques, where it found that defendant failed to show “the 2021 SORA was more punitive as a whole than the 2011 SORA[.]” Affirmed.

Ineffective assistance of counsel; Failure to call certain witnesses; Matters of trial strategy; Failure to produce certain evidence; Introduction of a prior uttering-&-publishing conviction during direct examination; Advice to limit testimony; Failure to move for a mistrial; Cumulative error; Sufficiency of the evidence for a CSC III conviction under MCL 750.520d(1)(c); Mental incapacitation or physical helplessness; Great weight of the evidence

The court rejected defendant’s claim that he was entitled to a new trial based on ineffective assistance of counsel. It also held that the evidence was sufficient to support his CSC III conviction, and that the conviction was not against the great weight of the evidence. He was convicted under MCL 750.520d(1)(c). Among other things, he claimed that his trial counsel (F) was ineffective for failing to investigate and call certain witnesses. The court concluded F’s “decision not to further investigate or call these witnesses did not fall below an objective standard of reasonableness.” The record showed that “each witness’s proposed testimony either had limited relevance or risked undermining defendant’s credibility by establishing the complainant’s significant intoxication or contradicting defendant’s version of events. Even where testimony would have provided limited corroboration, it also introduced substantial impeachment risk. Notably, several of the proposed witnesses would have provided testimony that conflicted with defendant’s account that the complainant was coherent and not significantly impaired. Such testimony would have undermined, rather than supported, defendant’s theory of the case.” Thus, he did not establish “deficient performance or prejudice.” Defendant also contended F “was ineffective for introducing his 2006 uttering-and-publishing conviction during direct examination.” F explained that “she determined it would be better to introduce the prior conviction rather than let the jury speculate about defendant’s arrest. In essence, it was trial strategy.” The court noted that even if it were to agree that F’s performance in this respect fell below an objective standard of reasonableness (which it did not), defendant failed to show prejudice. The “reference to his prior conviction was brief, not emphasized, and not exploited by the prosecution.” The court also held that the “prosecution presented sufficient evidence that the complainant was mentally incapacitated or physically helpless when the sexual incident with defendant occurred.” And his credibility/great weight of the evidence challenge did not entitle him to a new trial. Affirmed.

Domestic violence; Other acts evidence; MCL 768.27b; People v Berklund; Relevance; MRE 401; MRE 402; People v Denson; Unfair prejudice; MRE 403; People v Watkins; Ineffective assistance of counsel; Failure to object; People v Ericksen; Due process; Constitutionality of MCL 768.27b; People v Muniz

The court held that counsel was not ineffective for failing to object to other-acts evidence and that MCL 768.27b did not violate defendant’s due-process rights. Defendant was convicted of felonious assault and domestic violence after testimony showed that, while intoxicated, he grabbed his girlfriend by the neck, shoved her daughter’s head into a counter, and held a kitchen knife to the daughter’s boyfriend’s throat. On appeal, the court first held that evidence of defendant’s 2019 domestic-violence conviction was admissible under MCL 768.27b because it occurred within 10 years, involved domestic violence, was relevant, and survived MRE 403 balancing. The court found the evidence material because defendant denied assaulting the victim, and it was probative because MCL 768.27b permits other domestic-violence acts to be used for propensity purposes. The court further emphasized that the 2019 incident was strongly similar because, in both cases, defendant was intoxicated, lived with his girlfriend, assaulted her “by grabbing her by the neck,” assaulted the girlfriend’s daughter, and claimed he was attacked first. Applying Watkins, the court concluded that the evidence was reliable because it resulted in a conviction, was useful to corroborate the victim’s testimony, and was not more inflammatory than the charged conduct. Counsel was not ineffective because an objection would have been meritless. Finally, relying on Muniz, the court held that MCL 768.27b is constitutional because it allows propensity evidence but “does not lower the quantum of proof” required for conviction, and MRE 401 and MRE 403 provide adequate safeguards. Affirmed.

Prosecutorial misconduct; People v Bahoda; Vouching; Admission of testimony about delayed disclosure & victim behavior; Admission of a text message including song lyrics about abuse & survival; Relevance; MRE 401; Unfair prejudice; MRE 403; Exclusion of evidence under the rape-shield statute (MCL 750.520j); People v Hackett; People v Adair; Sentencing; Scoring of OVs 11 & 13; MCL 777.41(1)(a); MCL 777.43(1)(a) & (2)(a); Ineffective assistance of counsel; Failure to object to the verdict form & at sentencing; Motion for a new trial based on late day verdict

The court rejected defendant’s prosecutorial misconduct and ineffective assistance of counsel claims. It also held that the trial court did not err in admitting testimony in this CSC case about (1) “delayed disclosure and victim behavior” and (2) a text message that included “song lyrics about abuse and survival.” Further, the trial court did not abuse its discretion in declining to admit evidence under the rape-shield statute or in denying his motion for a new trial on the basis the jury returned its verdict late in the day. Finally, the court upheld the scoring of 50 points each for OVs 11 and 13. Defendant was convicted of CSC I and sentenced as a third-offense habitual offender to 15 to 25 years. The court first concluded that he could not show defense counsel was ineffective for not objecting to the verdict form. The “prosecution presented evidence of repeated sexual abuse occurring over a defined time period, all satisfying the elements of” CSC I. “The jury was not asked to choose between legally distinct offenses, nor did the instructions create a risk that some jurors convicted on one theory while others relied on a separate theory.” There was no indication of jury confusion or that the “form prevented the jurors from fairly considering the case.” Next, the court rejected his claim that the prosecution improperly vouched for the victim’s (JC) credibility. “JC’s credibility was the central issue at trial. The prosecutor’s argument was directed at explaining why the jury should find her testimony credible, based on the evidence presented. The prosecutor’s statements that JC was telling the truth were not assertions of personal knowledge or authority. Instead, they were rhetorical conclusions drawn from the evidence.” Such arguments were permissible. In addition, the “remarks were responsive to the defense theory that JC’s allegations were fabricated or unreliable.” The court also found that the testimony of two prosecution witnesses did not constitute improper vouching. It further determined that testimony explaining delayed disclosure and victim behavior “was relevant because it assisted the jury in evaluating JC’s credibility and understanding conduct that might otherwise appear inconsistent with abuse.” As to the evidence defendant sought to admit “suggesting that JC had previously been sexually assaulted by” someone else, he failed to comply with the threshold requirements. Affirmed.

The Americans with Disabilities Act (ADA); Denial of paid leave to attend a training course to obtain a guide dog; 42 USC §§ 12112(a) & (b)(5)(a); Failure-to-accommodate claim; Disparate-treatment claim; Whether defendants violated the Family & Medical Leave Act (FMLA) in denying paid leave

The court affirmed the district court’s grant of summary judgment for defendant-employer (Lakota Local School District) on plaintiff-Tumbleson’s ADA disparate-treatment and failure-to-accommodate claims, as well as her FMLA claim. It held that (1) she failed to offer evidence that Lakota treated nondisabled personnel more favorably, (2) “unpaid leave qualified as a ‘reasonable’ accommodation[,]” and (3) the FMLA in this case did “not allow her to substitute paid sick leave for the unpaid leave.” Tumbleson, who is both visually and hearing impaired, was an art teacher for Lakota. She requested three weeks leave to attend a training course on how to use a guide dog she had been matched with. She requested paid leave to attend the course. “Lakota denied her request for paid leave because this training did not qualify as a ‘personal illness’ under the district’s sick-leave policy. But it allowed her to take unpaid leave as an accommodation under” the ADA. Tumbleson sued for disparate treatment and failure-to-accommodate under the ADA. She also sued under the FMLA, alleging that Lakota improperly denied her request to use her accrued paid sick days in lieu of unpaid leave. The district granted Lakota summary judgment. On appeal, the court held that that she failed to show that Lakota treated “similarly situated,” nondisabled employees more favorably when they requested paid leave. She failed to “offer a single example of a nondisabled employee who received sick leave even when the employee’s proposed absence did not qualify for that leave.” The court also held that the unpaid-leave accommodation was reasonable. Tumbleson’s failure-to-accommodate claim could not succeed “because the ADA did not give her the right to her preferred accommodation.” Finally, the court held that her FMLA claim failed where she was only entitled to paid sick leave “if Lakota would ‘normally’ provide that leave under the circumstances” and she only provided “a bare-bones challenge to the district court’s conclusion that her guide-dog training did not qualify for paid leave under Lakota’s sick-leave policy.”

No-fault insurance; Personal protection insurance (PIP) benefits; MCL 500.3107(1)(a); Motorcycle priority; MCL 500.3114(5); Capped PIP coverage; MCL 500.3107c; Lower-priority insurer; Mary Free Bed Rehab Hosp v Esurance Prop & Cas Co

The court held that after the highest-priority insurer’s capped PIP coverage was exhausted, plaintiff-medical provider could seek remaining allowable expenses from lower-priority insurers whose policies provided higher available coverage. The injured person was riding a motorcycle when he collided with a motor vehicle, received medical care from plaintiff, and later died. Defendant-Geico insured the involved motor vehicle and paid its capped PIP medical-benefit limit of $249,500, leaving approximately $255,000 in unpaid allowable expenses. Plaintiff then sought payment from defendant-Progressive, which insured the injured person’s motor vehicles with unlimited PIP medical coverage, but Progressive denied the claim because it was lower in priority under MCL 500.3114(5). On appeal, the court held that Mary Free Bed controlled because it addressed the “precise question” whether a claimant or medical provider may recover from a lower-priority insurer after the highest-priority insurer’s capped PIP coverage is exhausted. The court explained that while MCL 500.3114 establishes the “order of priority among insurers,” those provisions do not “categorically bar recovery” from a lower-priority insurer when “additional benefits remain available under another policy.” Because Geico paid its capped coverage limit, Progressive’s policies provided higher available PIP coverage, and the material facts were undisputed, plaintiff was entitled to judgment as a matter of law. Reversed and remanded.

Landlord-tenant dispute; Offer-of-judgment sanctions; MCR 2.405(D); Interest-of-justice exception; Luidens v 63rd Dist Court; Mitigation of damages; Lease breach; Landin v Healthsource Saginaw, Inc; Fraudulent misrepresentation; Puffery; Van Tassel v McDonald Corp

The court held that the trial court erred by denying defendant-landlord’s motion for offer-of-judgment sanctions, but did not err by denying plaintiffs partial summary disposition on mitigation or by rejecting their fraudulent-misrepresentation theory. Plaintiffs signed a two-year lease for a loft but moved out almost immediately after encountering a neighbor. They then sued to void the lease while defendant counterclaimed for unpaid rent. On appeal, the court first held that the trial court miscalculated the offer-of-judgment comparison because defendant’s written offer was a “sum certain” of $4,710, not the larger amount plaintiffs proposed by adding the security deposit, prepaid rent, and future rent. Because the adjusted verdict was far more favorable to defendant than the offer, sanctions applied. The court also rejected the interest-of-justice exception, explaining that the $4,710 offer was not “de minimis” and instead reflected “a sincere effort at negotiation” to avoid protracted litigation. The court next held that plaintiffs were not entitled to summary disposition on mitigation because reasonable minds could differ over whether defendant acted reasonably by relisting the loft in 12/23, given that plaintiffs had prepaid rent and the security deposit covered part of the vacancy period. Finally, the court held that the property manager’s statements that the lofts “go quick” and that others were interested were nonactionable puffery, not fraudulent misrepresentations, because they were promotional statements or vague references to unnamed interested parties. Affirmed in part, vacated in part, and remanded.

The Governmental Tort Liability Act (GTLA); Gross negligence claim; MCL 691.1407(2); MCL 691.1407(8)(a); Tarlea v Crabtree

Holding that defendant-police officer’s (Khazaali) conduct did not rise to the level of gross negligence, the court reversed the trial court’s denial of her summary disposition motion and remanded for entry of an order granting her summary disposition. The case arose from a motor-vehicle crash between a police cruiser operated by “Khazaali, who was on duty and leaving the scene of an emergency call, and a vehicle operated by” nonparty-M. Plaintiffs were passengers in M’s vehicle. The court noted that the “GTLA defines ‘gross negligence’ as ‘conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.’” In this case, “Khazaali pulled from a parked position into the roadway and attempted to change lanes without looking and without using her turn signal. She was not traveling at an excessive rate of speed, it was a clear night, and there were few cars traveling on the road at the time. Although her emergency lights were not activated, there is nothing to suggest that there was a need for her to have those lights on when changing lanes. Even viewed in the light most favorable to plaintiffs, Officer Khazaali’s conduct is not so reckless as to demonstrate a substantial lack of concern for whether an injury results. Thus, although [she] was negligent, her conduct” did not constitute gross negligence. As a result, the trial court erred in denying her summary disposition motion.

Landlord-tenant dispute; Offer-of-judgment sanctions; MCR 2.405(D); Interest-of-justice exception; Luidens v 63rd Dist Court; Mitigation of damages; Lease breach; Landin v Healthsource Saginaw, Inc; Fraudulent misrepresentation; Puffery; Van Tassel v McDonald Corp

The court held that the trial court erred by denying defendant-landlord’s motion for offer-of-judgment sanctions, but did not err by denying plaintiffs partial summary disposition on mitigation or by rejecting their fraudulent-misrepresentation theory. Plaintiffs signed a two-year lease for a loft but moved out almost immediately after encountering a neighbor. They then sued to void the lease while defendant counterclaimed for unpaid rent. On appeal, the court first held that the trial court miscalculated the offer-of-judgment comparison because defendant’s written offer was a “sum certain” of $4,710, not the larger amount plaintiffs proposed by adding the security deposit, prepaid rent, and future rent. Because the adjusted verdict was far more favorable to defendant than the offer, sanctions applied. The court also rejected the interest-of-justice exception, explaining that the $4,710 offer was not “de minimis” and instead reflected “a sincere effort at negotiation” to avoid protracted litigation. The court next held that plaintiffs were not entitled to summary disposition on mitigation because reasonable minds could differ over whether defendant acted reasonably by relisting the loft in 12/23, given that plaintiffs had prepaid rent and the security deposit covered part of the vacancy period. Finally, the court held that the property manager’s statements that the lofts “go quick” and that others were interested were nonactionable puffery, not fraudulent misrepresentations, because they were promotional statements or vague references to unnamed interested parties. Affirmed in part, vacated in part, and remanded.

Termination under § 19b(3)(j); The trial court’s jurisdiction; Failure to strictly comply with MCR 3.972(F); Advice of appellate rights; Due process; In re Ferranti; Harmless error; Assumption of jurisdiction; MCL 712A.2(b)(1); Child’s best interests; Effect of relative placement

On remand from the Supreme Court, the court concluded that respondent-mother was not entitled to relief on the basis the trial court failed to strictly comply with MCR 3.972(F). It also held that (1) the evidence supported the trial court’s exercise of jurisdiction under MCL 712A.2(b)(1); (2) the trial court did not clearly err in terminating her parental rights under § (j); and (3) terminating her rights was in the child’s (CD) best interests. The Supreme Court remanded the case for a new appeal after respondent raised ineffective assistance of appellate counsel claims. She argued here that the trial court did not properly advise her of her appellate rights. The court agreed that it “did not comply with the court rules” in this regard. But while this error was “not insignificant,” the court found that it did not warrant reversal. The case went “to a jury trial at which DHHS was required to prove a statutory basis for jurisdiction by a preponderance of the evidence. Mother was afforded her core due-process protections, including representation by trial counsel and an opportunity to contest the allegations against her. The jury’s verdict supplied the factual predicate necessary for the [trial] court to exercise jurisdiction, and that determination is not challenged on the basis of any defect in the adjudicative procedure itself. Thus, the asserted error did not implicate the constitutional validity of the adjudication.” The court added that the alleged error did not “require reversal as a matter of rule-based compliance. A violation of a court rule does not automatically entitle a party to relief. Rather, the error must be shown to have affected the outcome or otherwise undermined the fairness or reliability of the proceedings.” Respondent failed to make that showing. Given the appellate proceedings, “if the trial court’s advisement was incomplete, [she] was not deprived of the ability to seek appellate review, and the purpose of MCR 3.972(F) was not frustrated in any meaningful sense.” As to § (j), given her “unresolved issues, lack of insight, and continued poor judgment, the trial court did not clearly err in concluding that returning CD to her care would place CD at risk of harm.” Finally, the child was doing well in his placement with his father, and the “trial court reasonably concluded that termination was necessary to provide CD with permanence and to protect him from ongoing risk associated with mother’s conduct.” Affirmed.

Children’s best interests; MCL 712A.19b(5); In re Olive/Metts Minors; Parent-child bond; Permanency & stability; In re White; Relative placement; In re Atchley

The court held that the trial court did not err by finding that termination of respondent-mother’s parental rights was in the children’s best interests. Respondent entered a no-contest plea establishing statutory grounds for termination. The factual basis included domestic violence in the home, respondent’s arrest in the children’s presence for brandishing a firearm, and a prior termination involving four other children after a child’s death. On appeal, respondent challenged only the best-interest finding. The court first held that the record supported termination because respondent visited the children only once, “the day prior to the best-interest hearing,” despite knowing about weekly visits for more than six months and receiving transportation assistance. It also noted that the children “have not developed a bond with respondent due to her prolonged absence,” that respondent did not attend medical appointments or school functions, and that she failed to maintain regular contact with the foster care specialist. The court next held that the children’s need for permanence and stability supported termination because respondent reported living in a home without “electricity and heat,” one child (KLV) needed counseling to address parental absence, and the other two (NME and AAE) had little or no recognition of respondent as their mother. Although KLV and NME were placed with relatives, the court held that relative placement was not dispositive where termination remained in the children’s best interests. Affirmed.