Whether timeliness defenses should be decided by the trial court or by the arbitrator; The Uniform Arbitration Act (UAA); MCL 691.1686(3); The Michigan Arbitration Act (MAA) (repealed); SCA Servs, Inc v General Mill Supply Co; Iron Cnty v Sundberg, Carlson & Assoc, Inc; Amtower v William C Roney & Co (On Remand); American Fed’n of State, Cnty & Mun Employees, Council 25, AFL-CIO v Hamtramck Hous Comm’n

The court held that the “question of whether timeliness defenses, such as the statute of limitations and laches, bars enforcement of an arbitration agreement generally is a question for the arbitrator, not the trial court.” Thus, it reversed the trial court’s grant of summary disposition to defendant and denial of plaintiff’s motion for partial summary disposition, and remanded. After plaintiff’s decedent was struck by a motor vehicle, a dispute arose over the no-fault benefits defendant was required to pay. This was the second of two lawsuits filed in the matter. In the prior case, in 2009 the parties entered into an agreement for binding arbitration and a stipulated order for dismissal. In this case, plaintiff “sought a court order determining that there is an enforceable arbitration agreement between plaintiff and defendant, and directing those two parties to proceed with arbitration.” Defendant successfully moved for summary disposition, arguing “that the complaint for arbitration was barred by the six-year breach of contract statute of limitations” and by the doctrine of laches. The court noted that the issue before it was “whether timeliness defenses such as the statute of limitations and laches should be decided by the court or by the arbitrator.” After considering both “binding and persuasive authorities,” it concluded “that under both the MAA and the UAA, timeliness defenses to a request for arbitration, such as the statute of limitations and laches, are generally questions for the arbitrator, not the court, to decide.”

Child custody; Modification; Proper cause or change of circumstances; MCL 722.27(1)(c); Vodvarka v Grasmeyer; Award of attorney fees as sanctions for a frivolous motion; MCL 600.2591; Kitchen v Kitchen

The court held that defendant-father failed to establish proper cause or a change of circumstances to revisit legal custody, but that the trial court abused its discretion by awarding plaintiff-mother attorney fees as a sanction. Defendant sought joint legal custody years after a default judgment of divorce awarded custody to plaintiff, citing remarriage, employment, travel opportunities, and disagreements over educational services. The trial court denied the motion and found it frivolous. On appeal, the court applied Vodvarka, reiterating that a “change must be ‘something more than the normal life changes’” and must have a significant effect on the child’s well-being. The court agreed with the trial court that defendant’s asserted changes were insufficient, noting that the record showed the parties could cooperate when necessary and there was “no evidence that plaintiff excluded defendant from participating in important matters affecting” the child. However, the court reversed the fee award, emphasizing that “not ‘every error in legal analysis constitutes a frivolous position.’” The court explained that frivolousness must be assessed at the time the motion was filed and that defendant’s factual assertions were not fabricated and his arguments were not devoid of arguable legal merit, even though they ultimately failed under Vodvarka. Affirmed in part, reversed in part, and remanded.

Retroactive application of Court of Claims Act notice requirement; MCL 600.6431; Christie v Wayne State Univ; Stare decisis effect of special panel decisions; MCR 7.215(J); Hudson v Department of Corrs

The court held that the Supreme Court’s decision in Christie applies retroactively and therefore bars plaintiffs’ ELCRA claims for failure to comply with MCL 600.6431. Plaintiffs sued the State alleging civil rights violations after police raided the wrong home, but they did not file a notice of intent in the Court of Claims because binding precedent at the time held that such notice was unnecessary for circuit court actions. The trial court denied the State’s motion for summary disposition, concluding that retroactive application would be unfair because plaintiffs relied on then-binding authority. On appeal, the court explained that intervening precedent controlled the outcome. The court stated that a special conflict panel convened under MCR 7.215(J) had since resolved the split by holding that Christie “is retroactive in every case,” and therefore “we are bound to follow the decision of the special panel.” The court emphasized that “[p]ursuant to MCR 7.215(J)(6), we are required to follow the decision of the special panel,” and that the earlier decision declining retroactivity “shall no longer have precedential effect.” Applying that rule, the court concluded that plaintiffs’ reliance interests could not override stare decisis because “a panel of this Court must follow the rule of law established by a prior published decision that has not been reversed or modified.” As a result, the trial court erred by denying summary disposition, and the matter was reversed and remanded to the trial court for entry of an order granting defendant’s motion for summary disposition.

42 USC § 1983 action alleging school officials violated a student’s Fourth Amendment rights by searching for a weapon; "Search" of a student; Whether the officials' search “exceeded the scope of what the circumstances warranted”; “Seizure” of a student; New Jersey v TLO; Couture v Board of Educ of Albuquerque Pub Schs (10th Cir); Procedural due process; Substantive due process; Whether defendants were entitled to governmental immunity as to state-law tort claims

[This appeal was from the ED-MI.] The court held for the first time in a published opinion in this circuit that “a public-school official makes a Fourth Amendment seizure of a student when the official limits ‘the student’s freedom of movement’ in a manner that ‘significantly exceed[s] that inherent in everyday, compulsory attendance.’” It concluded that defendants did not violate the student’s constitutional rights and they were immune from liability for the state-law tort claims. Student-H.H. made a remark in class about either having a gun or intending to bring one to school. School officials questioned him and searched him, his backpack and his locker, finding nothing. Even so, the school expelled him for 180 days for “making a threat of violence.” Plaintiffs, his parents, sued the school and school officials under § 1983, arguing that he was unlawfully seized and searched, his due process rights were violated, and they also brought state-law tort claims. The district court granted defendants summary judgment. On appeal, the court first reviewed plaintiffs’ claim of an unconstitutional search. They claimed that the school officials “exceeded the scope of what the circumstances warranted.” The court disagreed, determining the search was not unreasonably intrusive considering the circumstances—a school shooting had taken place only a week earlier and only 60 miles away. Under these circumstances, “a light search of H.H.’s body” and “searches of his backpack and locker were ‘reasonably related’ to the circumstances.” Thus, the court held that the search was “reasonable under the Fourth Amendment.” As to the allegedly unconstitutional seizure, the court concluded that “requiring a limitation on movement beyond the typical restriction on students’ ability to move about, and outside of, school as they see fit before classifying such a restriction as a ‘seizure’ accounts for ‘schools’ custodial and tutelary responsibility for children.’” As to when a student’s seizure becomes unreasonable, it joined several other “circuits that have adopted the T.L.O. standard for analyzing unreasonable-seizure claims made by students in the public-school context.” Here, the court found that, assuming H.H. was seized, the seizure was not “unreasonable. The school officials had clear justification to hold H.H. to question him about his purported comments in class. And they held him only for 30 minutes—which was ‘no longer than necessary to’ investigate and ‘confirm that [he] had no gun on [his] person or in’ his belongings.” It added that the fact he “was not advised of a criminal investigation or read his rights does not alter this conclusion.” It also held that his procedural and substantive due process rights were not violated. Affirmed.

Constitutionality of the Sex Offenders Registration Act (SORA); US Const, Am VIII; Const 1963, art 1, § 16; Whether 2021 SORA is criminal punishment or a civil regulation; People v Lymon; Whether 2021 SORA is cruel or unusual punishment; Tier III offenders; Lifetime electronic monitoring (LEM)

Addressing “for the first time whether the 2021 SORA constitutes punishment for all registrants[,]” the court held that given its “conclusion that the 2021 SORA is punishment but not cruel or unusual in every instance, defendant’s facial and as-applied constitutional challenges raised under the state Constitution fail. Because Michigan’s Constitution offers broader protections than the federal Constitution when assessing the proportionality of criminal punishment, it” followed that his federal claims also failed. It affirmed the Court of Appeals’ ruling “that the 2021 SORA is not cruel or unusual punishment in violation of the Michigan Constitution but” vacated its opinion to the extent that it was inconsistent with the court’s decision. It denied leave as to defendant’s claims as to LEM. He contended “that the 2021 SORA is a cruel and/or unusual punishment in violation of the state and federal Constitutions.” The court held that while “the 2021 SORA is punishment,” its requirements are not “cruel or unusual, either under the facial challenge brought here or as applied to defendant.” In considering whether the 2021 SORA constitutes punishment, the court adopted its reasoning from Lymon, “to conclude that the Legislature intended the 2021 SORA as a civil regulation.” But it determined that the only relevant “factor that points toward this legislation resembling a civil remedy is its connection to a nonpunitive purpose. In all other respects, the 2021 SORA resembles punishment. It approximates the traditional punishments of shaming and parole, burdens registrants with onerous requirements under the threat of imprisonment for noncompliance, and serves the penological goal of retribution. It is excessive in relation to its stated purpose because it imposes various duties based on unscientific groupings rather than individualized risk profiles, includes a publication requirement that may diminish its overall effectiveness in reducing recidivism, and remains operative beyond any plausible point of utility for thousands of registrants.” For all of these reasons, the court concluded “that the 2021 SORA constitutes punishment.” As to whether it was cruel and unusual punishment, it held “that the 2021 SORA is not grossly disproportionate in all instances. Therefore, we cannot conclude that the 2021 SORA is cruel or unusual punishment on its face.” The court was “similarly not convinced that Tier III registration, as applied to defendant, is cruel or unusual. Thus, his as-applied challenge also fails.”

While Justice Zahra agreed with the majority “that the 2021 SORA is not violative of state or federal constitutional prohibitions against excessive punishment,” he disagreed “with its conclusion that the 2021 SORA is a form of punishment.” Because the majority addressed this question, he concurred “in its conclusion that the 2021 SORA is not cruel or unusual punishment.” He would affirm the Court of Appeals’ judgment “as to defendant’s challenge to SORA but vacate its opinion to the extent that it held that the 2021 SORA was punishment as applied to offenders whose crimes contain a sexual component.”

Justice Bernstein concurred “with the majority’s opinion,” except that he “would have simply assumed without deciding that the 2021 SORA is punishment, given that any punishment here is not cruel or unusual.” Thus, he dissented “from Part III(B) of the majority opinion.”

Ineffective assistance of counsel; Failure to request a criminal responsibility evaluation; Center for Forensic Psychiatry (CFP)

The court vacated the trial court’s order denying defendant’s motion to withdraw his plea and remanded the “case to the trial court for it to hold a Ginther hearing regarding [his] claim of ineffective assistance of counsel before ruling on [his] motion to withdraw his plea.” He pled no contest to assault with a deadly weapon, and resisting or obstructing a police officer resulting in injury. He “subsequently moved to withdraw his plea, arguing that he would have proceeded to trial but for the ineffective assistance of defense counsel. The trial court denied the motion.” Defendant argued “that his trial counsel was ineffective in failing to request a criminal responsibility evaluation, and that this failure foreclosed any possibility of what would have otherwise been a plausible insanity defense.” The court expressed no opinion on his “ultimate prospects of success regarding an insanity defense, but [was] persuaded that a Ginther hearing should be conducted to allow the trial court to consider and decide defendant’s ineffective assistance claim in the first instance.” It found that it was “apparent from the existing record that defendant’s mental health issues were evident from the beginning of the proceedings. The prosecution and defendant’s first trial counsel both requested an evaluation to determine whether defendant was competent to stand trial. The CFP in fact found defendant incompetent to stand trial.” Yet, despite these facts, it appeared “that a criminal responsibility evaluation was never requested by [his] trial counsel, and the possibility of an insanity defense does not appear to have been raised.” The court agreed “with the trial court that the existing record is inadequate to determine whether defense counsel adequately investigated the possibility of an insanity defense and decided against it as a matter of sound trial strategy.” Moreover, the current record rendered the court “unable to determine whether defendant discussed with trial counsel the possibility of such a defense before defendant decided to plead no-contest to the charges against him.” As a result, the court declined “to decide whether defendant received the ineffective assistance of counsel and thus should have been permitted to withdraw his plea.”

Judicial misconduct; People v Stevens; Veil of impartiality; Distinguishing People v Hudson (Unpub); Ineffective assistance of counsel; Failure to object to the trial court’s instructions; Other acts evidence; Eliciting testimony from a victim that defendant had assaulted her; Failure to request a Daubert hearing & challenge expert testimony; Failure to object to testimony informing the jury that defendant was incarcerated; Consecutive sentencing

Holding that (1) defendant had not overcome the presumption of judicial impartiality, (2) he was not denied the effective assistance of counsel, and (3) the trial court did not abuse its discretion by imposing consecutive sentences, the court affirmed. The case arose out of his sexual abuse of his two nieces (LM and TK). He was convicted of CSC I and II. Defendant argued “that the trial court pierced the veil of impartiality by telling the complainants in front of the jury that they could discuss their testimony with therapists.” Applying the Stevens factors, the court concluded “that the veil of impartiality was not pierced.” Considering the totality of the circumstances, the court “found no error requiring reversal (plain or otherwise) in the trial judge’s statements to LM and TK.” Defendant’s citation to Hudson was unpersuasive. “In Hudson, the trial judge directly addressed the jury at length after the victim’s testimony, offering the jurors mental health resources and counseling services as a result of the ‘tough testimony’ they had heard.” The court noted that the “trial judge also stated that ‘these cases—are challenging for me and everyone else in the courtroom[.]’” It found “that the trial court had ‘pierced the veil of judicial impartiality by indicating that it was disturbed by the victim’s testimony, thus creating the appearance of sympathy for, or partiality toward, the victim.’” It noted that the “trial court made no such indication in this case; rather, it merely correctly instructed LM and TK that they could discuss their testimony with a therapist, if either was seeing one.” While it was “true that other witnesses were not given this additional instruction, we conclude, on the whole, that defendant has not overcome the presumption of judicial impartiality.” Affirmed.

Sentencing for violation of supervised release terms; Procedural reasonableness; Consideration of the length of defendant's state-court sentence; USSG Manual § 7B1.3(f); Finding that defendant trafficked cocaine when he pled guilty only to possession in state court; Whether the district court adequately justified its upward sentencing departure; 18 USC § 3553(a); Substantive reasonableness

The court affirmed the district court’s upward departure in sentencing defendant-Sims for violating the terms of his supervised release, holding that it did not err by considering the length of his state-court sentence or in finding he trafficked cocaine when he only pled guilty in state court to possession. The district court previously sentenced Sims to 48 months in prison and a 3-year term of supervised release after he pled guilty to FIP of a firearm and ammunition. He admitted that he violated the terms of his supervised release by using marijuana. But despite being warned that continued drug use could jeopardize his status, 2.4 grams of cocaine, a digital scale, and a measuring scoop were later found in his car. After pleading guilty in state court to felony cocaine possession, he was sentenced to nine months. At his hearing for revocation of his federal term of supervised release, he admitted to supervised-release violations of unauthorized drug use, possession of cocaine, and failure to report police contact but denied that he owned the cocaine. The district court concluded his denials were “not credible.” With a guidelines range of 7 to 13 months, Sims asked for a 9-month sentence and the government requested a 12-month consecutive sentence. The district court imposed an 18-month sentence to run consecutively to his state sentence. Sims argued that it erred by considering the length of his state-court sentence. But the court noted that the state sentence was relevant because it formed the basis of his supervised release violation and Guidelines Manual § 7B1.3(f) required the district court to consider how the federal term would interact with the state sentence. It also rejected his argument that the district court erred by finding that he trafficked cocaine. “At a revocation hearing, a district court may find facts by a preponderance of the evidence and may consider any reliable information in fashioning an appropriate sentence.” The district court considered the evidence taken from his car, which indicated “more than personal use[,]” and reasonably concluded that he had engaged in trafficking. Lastly, the court held that the district court adequately justified the sentence. It connected the “variance to Sims’s repeated failures to comply with conditions of supervision and the need for increased deterrence.” As to substantive reasonableness, given his “repeated failures and the ineffectiveness of prior lenience, an extra five months for cocaine possession while on supervised released is not ‘too long.’”

Child custody; Modification; Proper cause or change of circumstances; MCL 722.27(1)(c); Vodvarka v Grasmeyer; Award of attorney fees as sanctions for a frivolous motion; MCL 600.2591; Kitchen v Kitchen

The court held that defendant-father failed to establish proper cause or a change of circumstances to revisit legal custody, but that the trial court abused its discretion by awarding plaintiff-mother attorney fees as a sanction. Defendant sought joint legal custody years after a default judgment of divorce awarded custody to plaintiff, citing remarriage, employment, travel opportunities, and disagreements over educational services. The trial court denied the motion and found it frivolous. On appeal, the court applied Vodvarka, reiterating that a “change must be ‘something more than the normal life changes’” and must have a significant effect on the child’s well-being. The court agreed with the trial court that defendant’s asserted changes were insufficient, noting that the record showed the parties could cooperate when necessary and there was “no evidence that plaintiff excluded defendant from participating in important matters affecting” the child. However, the court reversed the fee award, emphasizing that “not ‘every error in legal analysis constitutes a frivolous position.’” The court explained that frivolousness must be assessed at the time the motion was filed and that defendant’s factual assertions were not fabricated and his arguments were not devoid of arguable legal merit, even though they ultimately failed under Vodvarka. Affirmed in part, reversed in part, and remanded.

Medical malpractice; Expert witness qualifications; MCL 600.2169; Standard of care (SOC); MRE 702; Albro v Drayer

The court held that by “‘apply[ing] an overly narrow test of qualifications in order to preclude [Dr. M] from testifying as an expert,’ the trial court misapplied the law and” abused its discretion. Thus, it also erred in granting defendants summary deposition on the basis that plaintiff “failed to produce admissible expert testimony to support” her claim. On appeal, plaintiff contended “the trial court abused its discretion by concluding that her sole expert witness was not qualified to testify about the requisite” SOC. The court held that there was no dispute that M satisfied “the ‘matching’ requirements of MCL 600.2169(1); he, like [defendant-]Dr. Ruiz, is board-certified in physical medicine and rehabilitation and in pain medicine, and he spent the majority of his time in active clinical practice of those specialties in the year preceding the incident that gave rise to plaintiff’s claim.” While he had not personally “performed the specific procedure involved in this case in over” 10 years, the court held that the trial court’s analysis conflicted with Albro. Here, too, M “has less, or at least no recent, personal experience with fluoroscopic-guided epidural steroid injections, the specific procedure that Dr. Ruiz performed.” But his deposition testimony reflected “that he regularly performs injection therapies. As for the specific procedure used here, he testified that he is trained to do them, has performed them in the past, is ‘very familiar’ with them, treats ‘thousands’ of patients who have had them, and works ‘very closely’ with colleagues in his own practice who perform the procedure which includes discussing patients with them on a daily basis.” Unlike the experts in Albro, M “has not authored publications discussing the procedure, but the overall gist of Albro is that ‘gaps or weaknesses in the witness’ expertise are a fit subject for cross-examination, and go to the weight of his testimony, not its admissibility.’” The court also did “not believe that there are independent grounds for excluding [his testimony] solely because he did not rely on literature.” The court’s analysis was “reinforced by the limited scope of what remained at issue in this case by the time the trial court ruled on defendants’ motion for summary disposition.” The court concluded that Dr. M “is qualified to offer expert testimony regarding Dr. Ruiz’s compliance with the [SOC] in response to plaintiff’s complaints, assuming that plaintiff’s deposition testimony is accurate. Contrary to the trial court’s opinion, [M] is qualified to form an opinion about what kinds of post-procedure complaints should trigger immediate follow-up care, and sharing that opinion would help the trier of fact determine whether Dr. Ruiz breached the [SOC] and caused plaintiff to suffer noneconomic damages during the time in question.” Reversed and remanded.

Personal protection insurance (PIP) benefits; Unlawful taking under MCL 500.3113(a); Ahmed v Tokio Marine Am Ins Co; Monaco v Home-Owners Ins Co; Swoope v Citizens Ins Co of the Midwest; VHS of MI, Inc v State Farm Mut Auto Ins Co; Bradley v Westfield Ins Co; Fraudulent insurance act in an application to the Michigan Automobile Insurance Placement Facility (MAIPF); MCL 500.3173a(4); Michigan Assigned Claims Plan (MACP)

In these consolidated appeals, the court held that the trial court erred in granting defendant-Nationwide partial summary disposition (1) as to an unlawful taking related to the first accident at issue and (2) based on plaintiff committing a fraudulent insurance act under 500.3173a(4) related to a second accident. He was involved in the first accident in 2021 and the second accident in 2022. At the time of the first accident, he was driving his girlfriend’s (M) vehicle without a valid driver’s license. In the second accident, he was a passenger. Nationwide was the assigned insurer under the MACP. As to the first accident, after reviewing several cases concerning MCL 500.3113(a), the court concluded a fact question existed about whether he had M’s permission to drive her vehicle on the date of the accident. While there was no testimony in the record indicating that he did, the record contained his “application for PIP benefits to the MAIPF after the first accident. Importantly, subsection 42.k. of that application inquired: ‘Did you have permission to use the vehicle/motorcycle on the date of the accident?’ and plaintiff checked the box indicating: ‘Yes[.]’ Further, subsection 42.g. asked: ‘Have you ever had to ask permission to use the vehicle/motorcycle?’ and plaintiff indicated: ‘No[.]’ Subsection 42.h. asked: ‘Have you ever been denied permission to use the vehicle/motorcycle?’ and plaintiff indicated: ‘No[.]’ Viewing” this evidence in a light most favorable to plaintiff, the court held that there was “a genuine issue of material fact for the jury’s resolution whether” he had M’s permission to use her vehicle on the date of the accident. Thus, summary disposition under “MCR 2.116(C)(10) should not have been granted on the issue whether plaintiff was entitled to recover PIP benefits owed as a result of the first accident notwithstanding MCR 500.3113(a).” An issue of material fact existed whether he “believed his taking was lawful under MCL 500.3113(a).” The court further found that his “leaving section 24 of his application for PIP benefits to the MAIPF for the second accident blank and unanswered does not constitute a ‘written statement’ under the terms of the statute, and, even if it did, there is nonetheless an issue of material fact whether plaintiff’s failure to answer section 24 was a matter of mere oversight and not knowingly false.” Reversed and remanded.

Retroactive application of Court of Claims Act notice requirement; MCL 600.6431; Christie v Wayne State Univ; Stare decisis effect of special panel decisions; MCR 7.215(J); Hudson v Department of Corrs

The court held that the Supreme Court’s decision in Christie applies retroactively and therefore bars plaintiffs’ ELCRA claims for failure to comply with MCL 600.6431. Plaintiffs sued the State alleging civil rights violations after police raided the wrong home, but they did not file a notice of intent in the Court of Claims because binding precedent at the time held that such notice was unnecessary for circuit court actions. The trial court denied the State’s motion for summary disposition, concluding that retroactive application would be unfair because plaintiffs relied on then-binding authority. On appeal, the court explained that intervening precedent controlled the outcome. The court stated that a special conflict panel convened under MCR 7.215(J) had since resolved the split by holding that Christie “is retroactive in every case,” and therefore “we are bound to follow the decision of the special panel.” The court emphasized that “[p]ursuant to MCR 7.215(J)(6), we are required to follow the decision of the special panel,” and that the earlier decision declining retroactivity “shall no longer have precedential effect.” Applying that rule, the court concluded that plaintiffs’ reliance interests could not override stare decisis because “a panel of this Court must follow the rule of law established by a prior published decision that has not been reversed or modified.” As a result, the trial court erred by denying summary disposition, and the matter was reversed and remanded to the trial court for entry of an order granting defendant’s motion for summary disposition.

Medical malpractice; Expert witness qualifications; MCL 600.2169; Standard of care (SOC); MRE 702; Albro v Drayer

The court held that by “‘apply[ing] an overly narrow test of qualifications in order to preclude [Dr. M] from testifying as an expert,’ the trial court misapplied the law and” abused its discretion. Thus, it also erred in granting defendants summary deposition on the basis that plaintiff “failed to produce admissible expert testimony to support” her claim. On appeal, plaintiff contended “the trial court abused its discretion by concluding that her sole expert witness was not qualified to testify about the requisite” SOC. The court held that there was no dispute that M satisfied “the ‘matching’ requirements of MCL 600.2169(1); he, like [defendant-]Dr. Ruiz, is board-certified in physical medicine and rehabilitation and in pain medicine, and he spent the majority of his time in active clinical practice of those specialties in the year preceding the incident that gave rise to plaintiff’s claim.” While he had not personally “performed the specific procedure involved in this case in over” 10 years, the court held that the trial court’s analysis conflicted with Albro. Here, too, M “has less, or at least no recent, personal experience with fluoroscopic-guided epidural steroid injections, the specific procedure that Dr. Ruiz performed.” But his deposition testimony reflected “that he regularly performs injection therapies. As for the specific procedure used here, he testified that he is trained to do them, has performed them in the past, is ‘very familiar’ with them, treats ‘thousands’ of patients who have had them, and works ‘very closely’ with colleagues in his own practice who perform the procedure which includes discussing patients with them on a daily basis.” Unlike the experts in Albro, M “has not authored publications discussing the procedure, but the overall gist of Albro is that ‘gaps or weaknesses in the witness’ expertise are a fit subject for cross-examination, and go to the weight of his testimony, not its admissibility.’” The court also did “not believe that there are independent grounds for excluding [his testimony] solely because he did not rely on literature.” The court’s analysis was “reinforced by the limited scope of what remained at issue in this case by the time the trial court ruled on defendants’ motion for summary disposition.” The court concluded that Dr. M “is qualified to offer expert testimony regarding Dr. Ruiz’s compliance with the [SOC] in response to plaintiff’s complaints, assuming that plaintiff’s deposition testimony is accurate. Contrary to the trial court’s opinion, [M] is qualified to form an opinion about what kinds of post-procedure complaints should trigger immediate follow-up care, and sharing that opinion would help the trier of fact determine whether Dr. Ruiz breached the [SOC] and caused plaintiff to suffer noneconomic damages during the time in question.” Reversed and remanded.

Malicious prosecution; Matthews v Blue Cross & Blue Shield of MI; Initiation of criminal prosecution

The court held that plaintiffs failed to establish a genuine issue of material fact that defendants initiated or procured the criminal prosecution, requiring dismissal of the malicious prosecution claim. Plaintiffs sued state regulatory officials after criminal charges against one plaintiff were dismissed at the preliminary exam for lack of probable cause. Plaintiffs alleged that defendants targeted that plaintiff for prosecution while similarly situated individuals were not charged. The trial court granted summary disposition. Applying Matthews, the court emphasized that a malicious prosecution plaintiff must show that the defendant “initiated a criminal prosecution” or “instigated the investigation or continued it,” and that the prosecution was based on false information. The court noted that defendants denied making any criminal referral, an agency director averred that no referral was made regarding plaintiff, and the investigating agent testified that the charging decision was made by the assistant attorney general. The court rejected plaintiffs’ argument that the prosecutor lacked independence, explaining that parties “opposing a motion for summary disposition must present more than conjecture and speculation,” and that providing information during a regulatory investigation does not equate to initiating prosecution. The court further stated that “[u]nless the information furnished was known by the giver to be false and was the information on which the prosecutor acted, the private person has not procured the prosecution.” Because plaintiffs failed to identify any knowingly false information supplied by defendants or evidence undermining prosecutorial independence, summary disposition was proper. Affirmed.

Request to vacate platted roads; The Land Division Act (LDA); Beach v Lima Twp; Whether plaintiff had to show an existing substantive property right in the roads to be vacated

Holding that the trial court did not err in concluding plaintiff had “to show an existing substantive property right in the streets” it sought to have vacated before this requested relief could be granted under the LDA, the court affirmed the judgment denying plaintiff’s request. As an initial matter, the court rejected defendants’ argument “that plaintiff’s failure to address the trial court’s third finding” (about nonuniform amendments to covenants) required dismissal of the case because the appeal necessarily failed given that the outcome would not change. The court disagreed “because denial of relief under this issue does not preclude relief under the other issues plaintiff raised.” But it also rejected plaintiff’s argument that the trial court erred in “finding that plaintiff was required to show an existing substantive property right in the streets sought to be vacated before such relief could be granted under the LDA.” The trial court relied on Beach, and the court likewise applied that case on appeal. Similar to the Beach plaintiffs, plaintiff “sought to vacate previously platted, but never developed, roads. But unlike the plaintiffs in Beach, plaintiff never argued a substantive property right through adverse possession or otherwise. Rather, [it] merely argued that it preferred to have the roads vacated. Because plaintiff failed to explain how its alleged interest in the roads was ‘traceable to the plat or the platting process,’ the LDA was not the proper avenue for relief in this case.” The court noted that the “proper avenue would have instead been for plaintiff to: (1) first, legally establish a substantive property interest in the roads, that was not traceable to the plat nor the platting process; (2) then, move, under the LDA, to have the plat revised to reflect that newly recognized property right.” Given that plaintiff did not show “a current substantive property right in the streets sought to be vacated, the trial court did not err by denying” its requested relief.

42 USC § 1983 action alleging school officials violated a student’s Fourth Amendment rights by searching for a weapon; "Search" of a student; Whether the officials' search “exceeded the scope of what the circumstances warranted”; “Seizure” of a student; New Jersey v TLO; Couture v Board of Educ of Albuquerque Pub Schs (10th Cir); Procedural due process; Substantive due process; Whether defendants were entitled to governmental immunity as to state-law tort claims

[This appeal was from the ED-MI.] The court held for the first time in a published opinion in this circuit that “a public-school official makes a Fourth Amendment seizure of a student when the official limits ‘the student’s freedom of movement’ in a manner that ‘significantly exceed[s] that inherent in everyday, compulsory attendance.’” It concluded that defendants did not violate the student’s constitutional rights and they were immune from liability for the state-law tort claims. Student-H.H. made a remark in class about either having a gun or intending to bring one to school. School officials questioned him and searched him, his backpack and his locker, finding nothing. Even so, the school expelled him for 180 days for “making a threat of violence.” Plaintiffs, his parents, sued the school and school officials under § 1983, arguing that he was unlawfully seized and searched, his due process rights were violated, and they also brought state-law tort claims. The district court granted defendants summary judgment. On appeal, the court first reviewed plaintiffs’ claim of an unconstitutional search. They claimed that the school officials “exceeded the scope of what the circumstances warranted.” The court disagreed, determining the search was not unreasonably intrusive considering the circumstances—a school shooting had taken place only a week earlier and only 60 miles away. Under these circumstances, “a light search of H.H.’s body” and “searches of his backpack and locker were ‘reasonably related’ to the circumstances.” Thus, the court held that the search was “reasonable under the Fourth Amendment.” As to the allegedly unconstitutional seizure, the court concluded that “requiring a limitation on movement beyond the typical restriction on students’ ability to move about, and outside of, school as they see fit before classifying such a restriction as a ‘seizure’ accounts for ‘schools’ custodial and tutelary responsibility for children.’” As to when a student’s seizure becomes unreasonable, it joined several other “circuits that have adopted the T.L.O. standard for analyzing unreasonable-seizure claims made by students in the public-school context.” Here, the court found that, assuming H.H. was seized, the seizure was not “unreasonable. The school officials had clear justification to hold H.H. to question him about his purported comments in class. And they held him only for 30 minutes—which was ‘no longer than necessary to’ investigate and ‘confirm that [he] had no gun on [his] person or in’ his belongings.” It added that the fact he “was not advised of a criminal investigation or read his rights does not alter this conclusion.” It also held that his procedural and substantive due process rights were not violated. Affirmed.

Child’s best interests

Concluding that the trial court did not err by finding that termination of respondent-father’s parental rights was in the child’s (GAB) best interests, the court affirmed. He argued that “he expressed willingness to participate in services while incarcerated and believed that he could rebuild a relationship with GAB after being released from incarceration.” The court found that a “preponderance of the evidence in the records supports that GAB did not know [his] father, identified with his current placement as his family, and looked to them for love, affection, and guidance.” It found that the “trial court properly considered the duration of GAB’s placement with relatives and found that he could not be placed with [the father] within the foreseeable future, as [he] will remain incarcerated until at least” 6/27. The record further supported the finding that the father “failed to seek custody or establish paternity until GAB was five years old, despite acknowledging GAB as his son as early as 2021. Two DHHS caseworkers testified that they made several attempts over the years to contact [the father] during his incarceration, and [he] did not avail himself of court-appointed counsel despite assistance offered. Although ‘[i]ncarceration alone is not a sufficient reason for termination of parental rights,’” the father’s “earliest release date is mid-2027, when GAB will be eight years old.” The court was “not left with a definite and firm conviction that the trial court made a mistake by finding that termination of [the father’s] parental rights was in GAB’s best interests.”

Reunification efforts; Suspension of parenting time; Due process; Parent’s removal from the home; MCL 712A.13a(4); Availability of an appeal; MCR 3.993(A)(1)

Rejecting respondent-mother’s claims (1) that the DHHS and the trial court impeded her efforts to reunify with her children and (2) that she was denied due process related to her removal from the family home, the court affirmed the order terminating her parental rights. It noted that she “received a trauma assessment, individual and family counseling, trauma-informed parenting classes, case management, and supportive visitation services.” Her two children were also “provided with trauma assessments, and family team meetings were held regularly to determine family supports and needs.” Thus, the court found she “and her children were offered a wide range of services in an effort to accomplish reunification.” Further, the record showed that respondent “participated in services, but she did not benefit from” them. She asserted that “the trial court prevented her from demonstrating the parenting skills she had learned by suspending her parenting time. At the time of the suspension, [she] had been exercising parenting time for almost one year. Despite consistently attending and participating in parenting” classes, she failed to show any benefit. The court found that her “failure to benefit from services, rather than any lack of reasonable efforts by the DHHS or interference by the trial court, was the barrier that prevented reunification.” She next argued that “she should have been given the same opportunity to appeal her removal from the home as she would have been afforded to appeal the removal of her children from the home.” But she did not “identify any error in the trial court’s determination to remove her, much less anything sufficient to reverse that decision on appeal. Thus,” the court found “no error at all, much less plain error, in the trial court’s decision to remove her from the home pursuant to MCL 712A.13a(4). Accordingly, any appeal of that ruling, whether immediately after her removal from the home or at any later point, would have been unsuccessful.” The court added that she could have appealed that order of right under MCR 3.993(A)(1).

Termination under § 19b(3)(j); In re Sanborn; In re White; Child’s best interests

Holding that the trial court did not clearly err in finding that § (j) supported terminating respondent-mother’s parental rights and that doing so was in the child’s best interests, the court affirmed the termination order. It concluded that it was clear from the record that the mother “minimized or denied the risk respondent-father presented to [the child] and [the] mother had a history of withholding information related to other adults with potential access to a child living in her home. Although there was testimony that contradicted the case manager’s testimony concerning [the child’s] contact with [the] father, the trial court was in a superior position to judge the credibility of the witnesses before it, and” the court did not find clear error in its decision to believe one over another. The court found the trial court did not clearly err in determining that at least one statutory ground for terminating the mother’s parental rights was “established by clear and convincing evidence.” In addition, it was “not left with a definite and firm conviction that the trial court made a mistake by holding that” terminating her rights was in the child’s best interests. There was evidence that she “actively interfered with the relationship between [the child] and her foster father. [The] mother’s CPS case manager testified that [the child] would come back from parenting time and tell his foster father that ‘Mom says you’re the devil’ and ‘Mom told me that I can’t love you. I can only love mom.’ The case manager also stated that [the] mother had falsely accused the foster father of abuse and neglect. This history makes it doubtful, to say the least, that [the] mother would work well with [the child’s] current medical providers and caregivers to ensure a smooth transition of care and to best manage [the child’s] special needs.” Further, she showed an unwillingness to provide the DHHS “with even the most basic information about a new relationship so that [it] could determine whether [the child] was at risk. Based on the record, a reasonable inference would be that [the] mother would be less able to manage [the child’s] special needs and would be unable or unwilling to put her own feelings aside and prioritize [the child’s] need for specialized support services.”

Separate administration of an estate & a trust; General power of appointment to distribute trust assets; Whether a will was executed with all the formalities of a deed as required under the trust; Applicability of MCL 700.2503; Public policy; Distinguishing In re Cudnik v William Beaumont Hosp

The court held that the “trial court did not err by ordering that the Estate and the Trust be administered separately because the Will failed to conform with the formalities of a deed as required under Section 3.2 of the Trust.” Thus, the Estate was not entitled to half of the Trust’s assets. Appellant incorrectly argued that the decedent (Ladney) “had a general power of appointment not subject to the conditional language in Section 3.2 because Sections 3.2 and 3.3 of the Trust are not inconsistent. The Trust’s unambiguous language in Section 3.2 granted Ladney a power of appointment to distribute half of the Trust’s assets upon death if he executed an instrument with all the formalities of a deed. The ordinary meaning of settlor’s reference to ‘all the formalities of a deed’ required Ladney to distribute the Trust’s assets in an instrument that met the requirements for a valid deed.” The court noted that “in order for the Will to be executed with all the formalities of a deed it” had to be notarized. But appellant conceded that it was not. “Therefore, the Will failed to satisfy Section 3.2 of the Trust, which was a specific condition set forth by settlor limiting how Ladney’s power of appointment could be carried out. Because we must give meaning to the settlor’s clear directives, the Estate is not entitled to half of the Trust’s assets because the Will was not executed with all the formalities of a deed, as required by Section 3.2 of the Trust.” Appellant seemed “to rely on language in Section 3.3 to argue that the conditional language in Section 3.2 should not be given effect.” The court disagreed. “The phrase ‘any power of appointment’ in Section 3.3 merely references the power of appointment granted to Ladney in Section 3.2.” It did not, as appellant argued, “negate the conditional language in Section 3.2, which required Ladney to carry out said power in an instrument with all the formalities of a deed. Appellant’s interpretation of Section 3.3 would negate the conditional language in Section 3.2, which the settlor specifically set forth. Appellant’s argument also fails to read the Trust as a whole, which” the court was required to do when interpreting it. Thus, “the trial court correctly found that the Will failed to comply with Section 3.2 of the Trust because it was not executed with all the formalities of a deed.” Appellant also incorrectly argued “that any technical defects in the Will should be overlooked under MCL 700.2503. But, as the trial court stated, this case does not involve a challenge to the validity of the Will.” Thus, MCL 700.2503 did not apply. Finally, the court saw “no similarity between the issue in Cudnik and the present case, and appellant offers no explanation as to why that case or any other authority should convince [it] to hold that the Trust is unenforceable as against public policy.” Affirmed.