Application to construct a pipeline; The Michigan Environmental Protection Act (MEPA); Citizen suits; MCL 324.1703(1); Administrative actions; MCL 324.1705(2); West MI Envtl Action Council v Natural Res Comm’n; Review of an agency’s MEPA decision; The Public Service Commission’s (PSC) authority to regulate pipelines; Act 16; Scope of the PSC’s MEPA analysis; “Conduct”; Harm assessment; MEPA alternatives analysis; The public trust doctrine; Glass v Goeckel

The court held that courts must apply de novo review to an agency’s application of MEPA, whether a case begins in court or in administrative proceedings. It also held “that MEPA requires (1) consideration of the environmental impact factually and proximately caused by the conduct at issue, (2) a fair and reasoned comparison of the environmental impacts of any alternatives to the conduct considered, and (3) consideration of the conduct’s potential effects on public trust resources.” Applying these holdings, it concluded the Court of Appeals and PSC erred in these cases arising from appellee-Enbridge Energy’s application to construct a tunnel under the Straits of Mackinac (the Replacement Project). The PSC issued an order granting approval for the Project under Act 16. The Court of Appeals affirmed. The court concluded that the Court of Appeals erred in “applying a deferential standard of review to the PSC’s MEPA determination rather than analyzing de novo whether the proposed conduct satisfies MCL 324.1705(2).” It also concluded that the PSC erred in “(1) failing to consider whether the tunnel project will factually and proximately cause the extension of Line 5’s operational life, potentially resulting in additional environmental harm; (2) comparing alternatives in an inconsistent manner; and (3) failing to consider the project’s impact on public trust resources.” The court noted that, to accomplish the goals of the MEPA’s alternatives analysis, “the environmental impact of the conduct at issue must be compared with that of the alternatives being considered” in order to make a “‘reasoned choice of alternatives.’” In these cases, “inconsistencies in the PSC’s comparisons did not allow for such a ‘reasoned choice.’ Instead of comparing alternatives that would fully replace Line 5 with the pipeline as a whole, it compared them to the Replacement Project alone—without acknowledging and accounting for the difference.” The court also found that “considering the ‘public trust’ under MEPA requires consideration of the public’s right to fish, hunt, travel through, and otherwise utilize the Great Lakes.” Thus, the MEPA factfinder must “assess and mitigate harm to public trust resources.” The court reversed the Court of Appeals’ judgment, vacated the PSC’s order, and remanded to the PSC.

Concurring in part and dissenting in part, Justice Zahra concluded that the “Court of Appeals did not err in affording deference to the PSC[.]” He also disagreed with the court’s expanded scope of analysis under the MEPA, and found that it erroneously assumed that “tenuous, remote, or peripheral environmental effects should be considered relevant to determining feasible alternatives to the Replacement Project.” But he concurred in the majority opinion as “to the holding that the matter should be remanded to the PSC for express findings on the” public trust issue.

42 USC § 1983; Fourth Amendment; Excessive force; Qualified immunity; Clearly established right; Physical force against nonresisting suspect; Disorderly conduct; Front porch encounter; Graham v Connor; Coffey v Carroll; Gambrel v Knox Cnty

The court held that defendant-officer was not entitled to qualified immunity because a jury could find he used excessive force in violation of clearly established Fourth Amendment law. Plaintiff sued under § 1983, alleging that the officer slammed open a gate into him, drove him to the ground, and punched him twice while plaintiff stood on his front porch during an investigation into a neighbor’s missing insulin pump. The district court denied qualified immunity to the officer. On appeal, the court held that the alleged facts would support a Fourth Amendment violation because plaintiff’s alleged offense, disorderly conduct on his porch, “was not serious,” he posed no imminent threat while separated from the officer by an iron gate, and he was not told he was under arrest before the officer used force. The court also held that the right was clearly established because Sixth Circuit caselaw had long provided that a suspect has the right “to be free from the use of physical force” when not resisting apprehension. It rejected the officer’s argument that the cited cases involved different force, reasoning that the issue was “the illegality of any physical force, not its calibration.” Affirmed.

42 USC § 1983; Fourth Amendment; Excessive force; Qualified immunity; Clearly established right; Physical force against nonresisting suspect; Disorderly conduct; Front porch encounter; Graham v Connor; Coffey v Carroll; Gambrel v Knox Cnty

The court held that defendant-officer was not entitled to qualified immunity because a jury could find he used excessive force in violation of clearly established Fourth Amendment law. Plaintiff sued under § 1983, alleging that the officer slammed open a gate into him, drove him to the ground, and punched him twice while plaintiff stood on his front porch during an investigation into a neighbor’s missing insulin pump. The district court denied qualified immunity to the officer. On appeal, the court held that the alleged facts would support a Fourth Amendment violation because plaintiff’s alleged offense, disorderly conduct on his porch, “was not serious,” he posed no imminent threat while separated from the officer by an iron gate, and he was not told he was under arrest before the officer used force. The court also held that the right was clearly established because Sixth Circuit caselaw had long provided that a suspect has the right “to be free from the use of physical force” when not resisting apprehension. It rejected the officer’s argument that the cited cases involved different force, reasoning that the issue was “the illegality of any physical force, not its calibration.” Affirmed.

Michigan Consumer Protection Act (MCPA); MCPA exemption; MCL 445.904(1)(a); Specifically authorized transaction or conduct; Smith v Globe Life Ins Co; Liss v Lewiston-Richards, Inc; Attorney Gen v Diamond Mtg Co; Regulated industries; Insulin-pricing practices; False or misleading price-reduction statements; MCL 445.903(1)(i); Grossly excessive pricing; MCL 445.903(1)(z); Civil investigative subpoenas; MCL 445.907(1); Declaratory relief; Actual controversy; MCR 2.605; Stare decisis; Robinson v Detroit

The court held that the plaintiff-AG’s declaratory-relief action presented a justiciable controversy and that the MCPA exemption in MCL 445.904(1)(a) applies only when the specific transaction or conduct at issue is authorized by law. The AG obtained authorization to issue civil investigative subpoenas while investigating defendant-Eli Lilly’s insulin-pricing practices for potential MCPA violations. But the circuit court granted Eli Lilly summary disposition of the AG’s request for declaratory relief related to MCL 445.904(1)(a) under Smith and Liss, and the Court of Appeals affirmed. On appeal, the court first held the AG was not required to plead a substantive MCPA violation before seeking declaratory relief as to the exemption. It reasoned that the circuit court had already found probable cause and authorized subpoenas, the parties disputed whether the exemption barred the investigation, and declaratory relief was necessary to guide “whether to serve the subpoenas” or challenge them. The court next held that Smith and Liss were wrongly decided because they converted MCL 445.904(1)(a) into a broad regulated-industries exemption. It reasoned that those cases improperly inserted the word “general” before “transaction” and “wrote the phrase ‘specifically authorized’ out of the statutory language.” Returning to Diamond, the court held that the proper inquiry is whether the “specific transaction or conduct at issue,” not the general business activity, is specifically authorized by law. The court also held that stare decisis did not justify retaining Smith and Liss. It found they made much of the MCPA unworkable by exempting broad categories of regulated businesses, disrupted reliance on the statute’s plain language, prejudiced the public interest in consumer protection, and departed sharply from Diamond without a stare decisis analysis. The court overruled Smith and Liss, reversed the Court of Appeals, vacated the circuit court’s order, and remanded for the circuit court to determine whether the particular transaction or conduct alleged is specifically authorized by law.

Justice Bolden dissented, joined by Justices Zahra and Bernstein. She would have held that the AG lacked standing because the AG had not pled an MCPA violation and therefore had not established an actual controversy. She reasoned that the AG sought to change settled law rather than obtain a declaration needed to guide the parties’ rights, and she viewed the majority as expanding standing by relying on hypothetical procedural paths that might have created a justiciable controversy.

Entrapment; “Unlawful inducement” & “reprehensible conduct” prongs; People v Turner; People v Jamieson; People v Juillet; People v Johnson; Appellate court standard of review

The court held that a trial court’s entrapment hearing factual findings are reviewed for clear error, and its legal conclusion “as to whether entrapment occurred and any other legal determinations are reviewed de novo.” It reaffirmed the two-prong, modified objective test for entrapment, clarifying “the proper role of readiness and willingness within the unlawful-inducement prong” and the scope of the reprehensible-conduct prong. Defendant-Jade pled guilty to accosting a child for immoral purposes after the trial court denied his motion to dismiss on the ground of entrapment. The Court of Appeals affirmed the entrapment ruling. On appeal, the court concluded that “the Court of Appeals applied an incorrect standard of review and erred in affirming the trial court’s analysis because the trial court did not properly consider whether police tactics escalated Jade’s conduct.” The court clarified that under the unlawful-inducement prong, “a court must consider a defendant’s readiness and willingness to commit the charged crime.” Further, the “ready and willing” phrase “does not create a new element of the entrapment test but simply expresses the objective-causation inquiry used to distinguish police inducement from a defendant’s independent agency and propensity.” As to the reprehensible-conduct prong, the court clarified “that escalation constitutes entrapment if it ‘“falls below standards, to which common feelings respond, for the proper use of governmental power.”’” The court did “not reach the ultimate question of whether Jade was entrapped as a matter of law.” It vacated the Court of Appeals opinion and remanded to the trial court.

Concurring, Justice Welch wrote separately to expand two aspects of the entrapment test. First, she explained why she believed “the reprehensible-conduct prong of the entrapment test could potentially apply to police operations similar to the one here.” Second, she described what in her “view does—and does not—constitute impermissible escalation.”

Concurring in part and dissenting in part, Justice Zahra agreed with the majority as to the applicable standard of appellate review, that the “ready and willing” phrase is not an added element, and “that conduct that seeks to escalate a defendant’s criminal liability is relevant to whether police conduct was so reprehensible that it cannot be tolerated.” He also agreed in part with the decision to remand. But he concluded the trial court correctly ruled on “the inducement prong and that the Court of Appeals reached the correct result in affirming” that ruling.

The Sex Offenders Registration Act (SORA); The catchall provision (MCL 28.722(r)(vii)); People v Anderson; Whether a violation was sexual in nature; Effect of People v Lymon

The court held that the trial court did not clearly err in ordering that defendant register under SORA’s catchall provision. He was charged with accosting a child for immoral purposes “after he gave two sex toys to the 14-year-old victim. He later pleaded no contest to aggravated assault[.]” He argued on appeal that the trial court erred in “imposing the SORA registration requirement because aggravated assault is a nonsexual offense.” Pursuant to Anderson, “three conditions must exist to order registration under the catchall provision: ‘(1) the defendant must have been convicted of a state-law violation or a municipal-ordinance violation, (2) the violation must, by its nature, constitute a sexual offense, and (3) the victim of the violation must be under 18 years of age.’” Only the second condition was at issue here. The court concluded that the trial court did not clearly err in “finding that defendant’s violation was, by its nature, a sexual offense because the intended purpose of the gift was for sexual conduct.” The court found that Lymon had “no impact on this conclusion because defendant’s violation clearly had a ‘sexual component’ and our Supreme Court in Lymon did not hold that SORA registration for convictions under the ‘catchall provision’ of SORA” was unconstitutional. Affirmed.

Scoring of OV 4; Psychological injury; MCL 777.34(1)(a); Within-guidelines sentence; Proportionality; Reasonableness; People v Posey; Ineffective assistance of counsel; Sufficiency of the evidence; AWIGBH; Malicious destruction of personal property; Domestic violence; Credibility

The court held that the trial court did not err by scoring OV 4 at 10 points, that defendant’s within-guidelines AWIGBH sentence was proportionate, and that she failed to establish ineffective assistance of counsel. It also rejected her sufficiency of the evidence challenge. She was convicted after driving her car into her former boyfriend and pinning him between two vehicles. The trial court sentenced her to 36 to 120 months for AWIGBH. On appeal, the court held that OV 4 was supported by a preponderance of the evidence because the victim became emotional at the preliminary exam, said the situation was bothering him, testified to “lasting affects,” and the PSIR reported he was “mentally and physically exhausted” from the assault. It also held that the within-guidelines sentence was presumptively proportionate and that defendant did not identify unusual circumstances overcoming that presumption. The court noted the trial court considered her prior assaultive misdemeanors, continuing danger to the victim, jail misconduct involving attempts to contact him, need for treatment, and lack of remorse. Finally, because OV 4 was properly scored, counsel was not ineffective for failing to object to it. Affirmed.

Second-degree murder; OWI causing death; MCL 257.625(4); Directed verdict; Malice; People v Goecke; Blood alcohol evidence; MCL 257.625a(6)(c); Late-endorsed witness; MCL 767.40a; Good cause; Continuance remedy; Judicial bias; MRE 614(b)

The court held that sufficient evidence of malice supported defendant’s second-degree murder conviction, that the trial court did not abuse its discretion by permitting late endorsement of a blood-testing witness, and that judicial bias was not shown. Defendant drove his vehicle through a red light while intoxicated and struck the victim’s BMW, killing him. The jury convicted defendant of second-degree murder and OWI causing death. On appeal, the court held that the trial court properly denied a directed verdict because the evidence went “‘beyond that of drunk driving.’” His blood alcohol content was 0.185 more than two hours after the crash, he drove 73 miles per hour in a 45-mile-per-hour zone, the light had been red for about 13 seconds, he had about 1,200 feet to stop, and he accelerated instead of braking. The court also rejected his blood-draw argument because a directed-verdict motion tests whether admitted evidence was sufficient, not whether evidence was wrongly admitted. It next held that good cause supported adding the technician who physically tested defendant’s blood because the prosecutor learned of her role during trial, and any prejudice was cured by a two-day continuance. Finally, the court held that the judge’s questioning and trial-management comments did not pierce the veil of impartiality because they sought relevant clarification or addressed legal issues outside the jury’s presence. Affirmed.

Application to construct a pipeline; The Michigan Environmental Protection Act (MEPA); Citizen suits; MCL 324.1703(1); Administrative actions; MCL 324.1705(2); West MI Envtl Action Council v Natural Res Comm’n; Review of an agency’s MEPA decision; The Public Service Commission’s (PSC) authority to regulate pipelines; Act 16; Scope of the PSC’s MEPA analysis; “Conduct”; Harm assessment; MEPA alternatives analysis; The public trust doctrine; Glass v Goeckel

The court held that courts must apply de novo review to an agency’s application of MEPA, whether a case begins in court or in administrative proceedings. It also held “that MEPA requires (1) consideration of the environmental impact factually and proximately caused by the conduct at issue, (2) a fair and reasoned comparison of the environmental impacts of any alternatives to the conduct considered, and (3) consideration of the conduct’s potential effects on public trust resources.” Applying these holdings, it concluded the Court of Appeals and PSC erred in these cases arising from appellee-Enbridge Energy’s application to construct a tunnel under the Straits of Mackinac (the Replacement Project). The PSC issued an order granting approval for the Project under Act 16. The Court of Appeals affirmed. The court concluded that the Court of Appeals erred in “applying a deferential standard of review to the PSC’s MEPA determination rather than analyzing de novo whether the proposed conduct satisfies MCL 324.1705(2).” It also concluded that the PSC erred in “(1) failing to consider whether the tunnel project will factually and proximately cause the extension of Line 5’s operational life, potentially resulting in additional environmental harm; (2) comparing alternatives in an inconsistent manner; and (3) failing to consider the project’s impact on public trust resources.” The court noted that, to accomplish the goals of the MEPA’s alternatives analysis, “the environmental impact of the conduct at issue must be compared with that of the alternatives being considered” in order to make a “‘reasoned choice of alternatives.’” In these cases, “inconsistencies in the PSC’s comparisons did not allow for such a ‘reasoned choice.’ Instead of comparing alternatives that would fully replace Line 5 with the pipeline as a whole, it compared them to the Replacement Project alone—without acknowledging and accounting for the difference.” The court also found that “considering the ‘public trust’ under MEPA requires consideration of the public’s right to fish, hunt, travel through, and otherwise utilize the Great Lakes.” Thus, the MEPA factfinder must “assess and mitigate harm to public trust resources.” The court reversed the Court of Appeals’ judgment, vacated the PSC’s order, and remanded to the PSC.

Concurring in part and dissenting in part, Justice Zahra concluded that the “Court of Appeals did not err in affording deference to the PSC[.]” He also disagreed with the court’s expanded scope of analysis under the MEPA, and found that it erroneously assumed that “tenuous, remote, or peripheral environmental effects should be considered relevant to determining feasible alternatives to the Replacement Project.” But he concurred in the majority opinion as “to the holding that the matter should be remanded to the PSC for express findings on the” public trust issue.

Child custody; Motion to modify custody; Proper cause or change of circumstances; Vodvarka v Grasmeyer; Lack of an evidentiary hearing; Killingbeck v Killingbeck; Credibility; Children’s Protective Services (CPS) investigation; Co-parenting counselor dispute

The court held that defendant-mother failed to establish proper cause or a change of circumstances warranting reconsideration of custody. Plaintiff-father had sole legal and physical custody. The mother filed emergency motions alleging neglect and abuse, but CPS could not corroborate or substantiate the allegations, and the trial court found she had attempted to manipulate it and the child. After a co-parenting counselor later sent a letter stating she believed the father was not credible, the mother moved for sole custody. On appeal, the court held that the counselor’s letter was not proper cause because it merely expressed the counselor’s opinion that the mother was more credible on allegations the trial court had already considered and rejected. It also held that the letter did not show a change of circumstances because it did not identify materially changed conditions since the last custody order. Because the threshold showing was not met, the trial court did not err by denying the motion without an evidentiary hearing. Affirmed.

Involuntary mental-health treatment order; “Person requiring treatment” under MCL 330.1401(1); Clear & convincing evidence; Ineffective assistance of counsel; In re Londowski; Judicial bias; MCR 2.003; Cain v Department of Corrs; Alleged violation of the Thirteenth Amendment

The court held that clear and convincing evidence supported that respondent-DL “was a person requiring treatment under MCL 330.1401(1).” It also rejected his ineffective assistance of counsel, judicial bias, and Thirteenth Amendment violation claims. Thus, it affirmed the probate court’s order continuing his involuntary mental-health treatment. A doctor (H) “testified that DL had a mental illness—schizophrenia—which he described as ‘a substantial disorder of thought’ and which also impaired DL’s judgment. [H] explained that DL’s mental illness caused him to experience grandiose and paranoid delusions including that he owned U of M, that satanic murders were occurring on campus, and that he was poisoned while in jail on charges stemming from his trespass and arrest at U of M.” The court found that nothing in the record supported respondent’s assertion that the probate “court stated or implied that [H’s] testimony was more credible than DL’s written statements merely because of [H’s] credentials as an expert in psychiatry. But it was for the trial court as the finder of fact to determine whether it believed [H’s] testimony about DL’s mental illness or DL’s denial that he suffers from any mental illness.” The court noted that “DL was in a campus library trying to prevent satanic murders at U of M during one of his confrontations with police. DL has not shown that, as a former student, he was allowed to be in a campus library at that time. Further, his position is also contradicted by his repeated claims that he was not trespassing because he was awarded U of M in a federal court case in 2014. Considering DL’s various assertions about U of M alone, [H] was not incorrect that DL had delusional ‘episodes.’” The court concluded that documents admitted at the evidentiary hearing “supported petitioner’s view that DL required ongoing involuntary treatment because they showed that he had lasting delusional beliefs about the reasons for his arrest and commitment, and a continuing denial of any mental illness for which he needed treatment.”

The Affordable Care Act (ACA); Provision prohibiting insurers from discriminating against healthcare providers; Standing; Causation based on lack of regulation causing third-party reactions; Distinguishing Diamond Alternative Energy, LLC v EPA; Redressability; Department of Health & Human Services (HHS)

The court held that plaintiff-American Association of Nurse Anesthesiology lacked standing to seek a writ of mandamus compelling defendants-HHS and HHS Secretary to enforce the ACA’s provision prohibiting insurers from discriminating against healthcare providers. Plaintiff alleged private insurers were violating the ACA “by paying nurse anesthetists less than physician anesthesiologists who provide the same services.” The district court granted defendants’ motion to dismiss based on lack of standing. On appeal, the court concluded that even assuming plaintiff “properly established an injury in fact, its members can’t show that any injury they experienced was fairly traceable to the defendants’ conduct and redressable by a favorable judgment.” Thus, they lacked standing. As to causation, plaintiff alleged “its members experienced the injury of lower reimbursement rates for independent anesthesia services. But HHS didn’t impose those rates—private insurers did. The Association theorizes that HHS nonetheless caused its injury because those insurers are ‘[e]mboldened by the government’s’ failure to enforce the ACA’s nondiscrimination provision. That causal relationship is too speculative to support standing.” The court added that, even “assuming that government inaction caused its members’ injuries, the Association doesn’t explain why the defendants’ inaction in particular did so.” It noted that the “states have primary enforcement authority over the ACA’s nondiscrimination provision.” Citing Diamond, plaintiff argued that it had “standing because the third-party insurers ‘likely react’ to HHS’s inaction ‘in predictable ways that . . . likely cause’ its members’ injuries.” But the court found that this was a “far different” case than Diamond. Given that “insurers didn’t implement the challenged policies for over a decade after the alleged nonenforcement started, the Association hasn’t shown that an insurer would ‘likely react’ to HHS’s inaction by cutting reimbursements for its members. At bottom, the Association can’t trace its members’ injuries to the Secretary and HHS.” The court further concluded that no member of plaintiff could “show that his injury is likely redressable by a favorable outcome in this” case. Affirmed.

Auto negligence; Effect of defendant’s bankruptcy discharge; 11 USC § 524(a); In re Jet Florida Sys, Inc (11th Cir); Pursuit of the case for purposes of collecting uninsured motorist (UM) coverage from plaintiff’s own insurer; Andreson v Progressive Marathon Ins Co

The court held that the trial court erred in dismissing plaintiff’s motion for judgment based on “defendant’s bankruptcy discharge and the fact that plaintiff did not include his insurer as a party” where he sought to collect UM benefits. The parties were involved in an auto accident. While this negligence action was pending, defendant filed for Chapter 7 bankruptcy. Plaintiff moved for relief from the automatic stay so he could “continue his action against defendant for purposes of collecting” UM coverage from his own insurer. The bankruptcy court granted his motion. Plaintiff later was granted summary disposition in this action. But when he moved for entry of judgment, defendant opposed the motion and the trial court denied it. He argued that the trial court erred because the bankruptcy discharge did not preclude him “from continuing his negligence action for insurance purposes.” The court agreed. He had “explicitly stated that he only seeks a judgment against defendant to permit his recovery under his [UM] policy and, notably, the bankruptcy court granted plaintiff relief from the stay during the bankruptcy proceedings for that purpose.” UM coverage in Michigan is governed by the applicable policy’s provisions. Plaintiff’s policy provides “that the insurer ‘will pay compensatory damage which an “insured” is legally entitled to recover from the owner or operator of an’” uninsured vehicle due to bodily injury. Thus, “in light of the well-established principle that a plaintiff may proceed against a discharged debtor to establish liability to recover from an insurer,” the court held that the trial court erred in “denying plaintiff’s motion for judgment on the basis of defendant’s bankruptcy discharge.” As to his failure to name his insurer as a party, his “policy, at most, requires his insurer’s consent before seeking a judgment for damages, if plaintiff seeks to bind his insurer—there is no requirement that his insurer is a party to the lawsuit.” Vacated and remanded for “the trial court to properly consider the amount of damages owed to plaintiff.”

First-party no-fault; PIP benefits; Medical-provider claims; Discovery sanctions; Motion to compel depositions; Striking witnesses; Expert witnesses; Dean v Tucker factors; Lesser sanctions; Summary disposition; MCR 2.116(C)(10)

The court held that the trial court abused its discretion by striking plaintiffs’ witnesses without adequately considering the Dean factors and lesser sanctions. Plaintiffs, medical providers in a first-party no-fault action, failed to produce three witnesses for depositions within the time required by an order to compel, and the trial court struck those witnesses before later granting defendant summary disposition. On appeal, the court held that the sanction analysis was inadequate because the trial court stated its conclusions “in a conclusory fashion” and did not explain how defendant was prejudiced or “what defect needed to be cured.” It also found the record did not show repeated discovery violations because the parties had stipulated to extend plaintiffs’ initial-disclosure deadline, and “the only discovery violation reflected on the record” was failure to comply with the order compelling depositions within 30 days. The court emphasized that the sanction effectively resulted in dismissal and required more rigorous consideration, including whether attorney fees or another lesser sanction would better serve the interests of justice. Reversed in part, vacated in part, and remanded.

Michigan Consumer Protection Act (MCPA); MCPA exemption; MCL 445.904(1)(a); Specifically authorized transaction or conduct; Smith v Globe Life Ins Co; Liss v Lewiston-Richards, Inc; Attorney Gen v Diamond Mtg Co; Regulated industries; Insulin-pricing practices; False or misleading price-reduction statements; MCL 445.903(1)(i); Grossly excessive pricing; MCL 445.903(1)(z); Civil investigative subpoenas; MCL 445.907(1); Declaratory relief; Actual controversy; MCR 2.605; Stare decisis; Robinson v Detroit

The court held that the plaintiff-AG’s declaratory-relief action presented a justiciable controversy and that the MCPA exemption in MCL 445.904(1)(a) applies only when the specific transaction or conduct at issue is authorized by law. The AG obtained authorization to issue civil investigative subpoenas while investigating defendant-Eli Lilly’s insulin-pricing practices for potential MCPA violations. But the circuit court granted Eli Lilly summary disposition of the AG’s request for declaratory relief related to MCL 445.904(1)(a) under Smith and Liss, and the Court of Appeals affirmed. On appeal, the court first held the AG was not required to plead a substantive MCPA violation before seeking declaratory relief as to the exemption. It reasoned that the circuit court had already found probable cause and authorized subpoenas, the parties disputed whether the exemption barred the investigation, and declaratory relief was necessary to guide “whether to serve the subpoenas” or challenge them. The court next held that Smith and Liss were wrongly decided because they converted MCL 445.904(1)(a) into a broad regulated-industries exemption. It reasoned that those cases improperly inserted the word “general” before “transaction” and “wrote the phrase ‘specifically authorized’ out of the statutory language.” Returning to Diamond, the court held that the proper inquiry is whether the “specific transaction or conduct at issue,” not the general business activity, is specifically authorized by law. The court also held that stare decisis did not justify retaining Smith and Liss. It found they made much of the MCPA unworkable by exempting broad categories of regulated businesses, disrupted reliance on the statute’s plain language, prejudiced the public interest in consumer protection, and departed sharply from Diamond without a stare decisis analysis. The court overruled Smith and Liss, reversed the Court of Appeals, vacated the circuit court’s order, and remanded for the circuit court to determine whether the particular transaction or conduct alleged is specifically authorized by law.

Justice Bolden dissented, joined by Justices Zahra and Bernstein. She would have held that the AG lacked standing because the AG had not pled an MCPA violation and therefore had not established an actual controversy. She reasoned that the AG sought to change settled law rather than obtain a declaration needed to guide the parties’ rights, and she viewed the majority as expanding standing by relying on hypothetical procedural paths that might have created a justiciable controversy.

The Affordable Care Act (ACA); Provision prohibiting insurers from discriminating against healthcare providers; Standing; Causation based on lack of regulation causing third-party reactions; Distinguishing Diamond Alternative Energy, LLC v EPA; Redressability; Department of Health & Human Services (HHS)

The court held that plaintiff-American Association of Nurse Anesthesiology lacked standing to seek a writ of mandamus compelling defendants-HHS and HHS Secretary to enforce the ACA’s provision prohibiting insurers from discriminating against healthcare providers. Plaintiff alleged private insurers were violating the ACA “by paying nurse anesthetists less than physician anesthesiologists who provide the same services.” The district court granted defendants’ motion to dismiss based on lack of standing. On appeal, the court concluded that even assuming plaintiff “properly established an injury in fact, its members can’t show that any injury they experienced was fairly traceable to the defendants’ conduct and redressable by a favorable judgment.” Thus, they lacked standing. As to causation, plaintiff alleged “its members experienced the injury of lower reimbursement rates for independent anesthesia services. But HHS didn’t impose those rates—private insurers did. The Association theorizes that HHS nonetheless caused its injury because those insurers are ‘[e]mboldened by the government’s’ failure to enforce the ACA’s nondiscrimination provision. That causal relationship is too speculative to support standing.” The court added that, even “assuming that government inaction caused its members’ injuries, the Association doesn’t explain why the defendants’ inaction in particular did so.” It noted that the “states have primary enforcement authority over the ACA’s nondiscrimination provision.” Citing Diamond, plaintiff argued that it had “standing because the third-party insurers ‘likely react’ to HHS’s inaction ‘in predictable ways that . . . likely cause’ its members’ injuries.” But the court found that this was a “far different” case than Diamond. Given that “insurers didn’t implement the challenged policies for over a decade after the alleged nonenforcement started, the Association hasn’t shown that an insurer would ‘likely react’ to HHS’s inaction by cutting reimbursements for its members. At bottom, the Association can’t trace its members’ injuries to the Secretary and HHS.” The court further concluded that no member of plaintiff could “show that his injury is likely redressable by a favorable outcome in this” case. Affirmed.

Injuries sustained while crossing a roadway; Governmental immunity; Sidewalk exception (MCL 691.1402a); Highway exception (MCL 691.1402); Distinguishing Sebring v City of Berkley; Jurisdiction over the roadway; Design defects; Hanson v Board of Cnty Rd Comm’rs

The court held that defendants-Macomb County and Shelby Township were properly granted summary disposition of plaintiff’s claims under the sidewalk and highway exceptions to governmental immunity. Further, while she urged it to adopt the reasoning of the Hanson dissent and rule that governmental entities may be liable for roadway design defects, it could not do so. The then-14-year-old plaintiff was struck and seriously injured crossing 25 Mile Road in the Township. As to her design defect argument, the court noted that it was bound by the Supreme Court’s decisions and had “no authority to treat a Supreme Court dissent as controlling law.” As to the sidewalk exception, it did not apply to Macomb County as that provision only applies to entities defined by MCL 691.1401(d) as a “municipal corporation” and a county is not included in the definition. Thus, Macomb County “had no duty under MCL 691.1402a to maintain the sidewalk.” As to the Township, the court determined that plaintiff’s allegations did “not describe a failure to maintain the existing sidewalk in reasonable repair. They describe an alleged failure to design or construct a different pedestrian route.” The court noted that the “sidewalk exception imposes a duty to maintain an installed sidewalk in reasonable repair; it does not impose a duty to extend the sidewalk, construct a bridge, install a crosswalk, or otherwise redesign the surrounding pedestrian infrastructure.” As to the highway exception, the claim against Macomb County failed because plaintiff did not allege “a defect in the improved portion of 25 Mile Road designed for vehicular travel. Rather,” the claim she alleged, that the road was unsafe due to the lack of pedestrian protections where the sidewalk ended, was “not a repair-and-maintenance claim. It is a claim that Macomb County should have designed or redesigned the roadway and surrounding pedestrian infrastructure differently.” That theory was foreclosed by Hanson. The court added that the claim against the Township failed “for an additional reason: Shelby Township did not have jurisdiction over 25 Mile Road.” Affirmed.

Auto negligence; Effect of defendant’s bankruptcy discharge; 11 USC § 524(a); In re Jet Florida Sys, Inc (11th Cir); Pursuit of the case for purposes of collecting uninsured motorist (UM) coverage from plaintiff’s own insurer; Andreson v Progressive Marathon Ins Co

The court held that the trial court erred in dismissing plaintiff’s motion for judgment based on “defendant’s bankruptcy discharge and the fact that plaintiff did not include his insurer as a party” where he sought to collect UM benefits. The parties were involved in an auto accident. While this negligence action was pending, defendant filed for Chapter 7 bankruptcy. Plaintiff moved for relief from the automatic stay so he could “continue his action against defendant for purposes of collecting” UM coverage from his own insurer. The bankruptcy court granted his motion. Plaintiff later was granted summary disposition in this action. But when he moved for entry of judgment, defendant opposed the motion and the trial court denied it. He argued that the trial court erred because the bankruptcy discharge did not preclude him “from continuing his negligence action for insurance purposes.” The court agreed. He had “explicitly stated that he only seeks a judgment against defendant to permit his recovery under his [UM] policy and, notably, the bankruptcy court granted plaintiff relief from the stay during the bankruptcy proceedings for that purpose.” UM coverage in Michigan is governed by the applicable policy’s provisions. Plaintiff’s policy provides “that the insurer ‘will pay compensatory damage which an “insured” is legally entitled to recover from the owner or operator of an’” uninsured vehicle due to bodily injury. Thus, “in light of the well-established principle that a plaintiff may proceed against a discharged debtor to establish liability to recover from an insurer,” the court held that the trial court erred in “denying plaintiff’s motion for judgment on the basis of defendant’s bankruptcy discharge.” As to his failure to name his insurer as a party, his “policy, at most, requires his insurer’s consent before seeking a judgment for damages, if plaintiff seeks to bind his insurer—there is no requirement that his insurer is a party to the lawsuit.” Vacated and remanded for “the trial court to properly consider the amount of damages owed to plaintiff.”

Injuries sustained while crossing a roadway; Governmental immunity; Sidewalk exception (MCL 691.1402a); Highway exception (MCL 691.1402); Distinguishing Sebring v City of Berkley; Jurisdiction over the roadway; Design defects; Hanson v Board of Cnty Rd Comm’rs

The court held that defendants-Macomb County and Shelby Township were properly granted summary disposition of plaintiff’s claims under the sidewalk and highway exceptions to governmental immunity. Further, while she urged it to adopt the reasoning of the Hanson dissent and rule that governmental entities may be liable for roadway design defects, it could not do so. The then-14-year-old plaintiff was struck and seriously injured crossing 25 Mile Road in the Township. As to her design defect argument, the court noted that it was bound by the Supreme Court’s decisions and had “no authority to treat a Supreme Court dissent as controlling law.” As to the sidewalk exception, it did not apply to Macomb County as that provision only applies to entities defined by MCL 691.1401(d) as a “municipal corporation” and a county is not included in the definition. Thus, Macomb County “had no duty under MCL 691.1402a to maintain the sidewalk.” As to the Township, the court determined that plaintiff’s allegations did “not describe a failure to maintain the existing sidewalk in reasonable repair. They describe an alleged failure to design or construct a different pedestrian route.” The court noted that the “sidewalk exception imposes a duty to maintain an installed sidewalk in reasonable repair; it does not impose a duty to extend the sidewalk, construct a bridge, install a crosswalk, or otherwise redesign the surrounding pedestrian infrastructure.” As to the highway exception, the claim against Macomb County failed because plaintiff did not allege “a defect in the improved portion of 25 Mile Road designed for vehicular travel. Rather,” the claim she alleged, that the road was unsafe due to the lack of pedestrian protections where the sidewalk ended, was “not a repair-and-maintenance claim. It is a claim that Macomb County should have designed or redesigned the roadway and surrounding pedestrian infrastructure differently.” That theory was foreclosed by Hanson. The court added that the claim against the Township failed “for an additional reason: Shelby Township did not have jurisdiction over 25 Mile Road.” Affirmed.

Involuntary mental-health treatment order; “Person requiring treatment” under MCL 330.1401(1); Clear & convincing evidence; Ineffective assistance of counsel; In re Londowski; Judicial bias; MCR 2.003; Cain v Department of Corrs; Alleged violation of the Thirteenth Amendment

The court held that clear and convincing evidence supported that respondent-DL “was a person requiring treatment under MCL 330.1401(1).” It also rejected his ineffective assistance of counsel, judicial bias, and Thirteenth Amendment violation claims. Thus, it affirmed the probate court’s order continuing his involuntary mental-health treatment. A doctor (H) “testified that DL had a mental illness—schizophrenia—which he described as ‘a substantial disorder of thought’ and which also impaired DL’s judgment. [H] explained that DL’s mental illness caused him to experience grandiose and paranoid delusions including that he owned U of M, that satanic murders were occurring on campus, and that he was poisoned while in jail on charges stemming from his trespass and arrest at U of M.” The court found that nothing in the record supported respondent’s assertion that the probate “court stated or implied that [H’s] testimony was more credible than DL’s written statements merely because of [H’s] credentials as an expert in psychiatry. But it was for the trial court as the finder of fact to determine whether it believed [H’s] testimony about DL’s mental illness or DL’s denial that he suffers from any mental illness.” The court noted that “DL was in a campus library trying to prevent satanic murders at U of M during one of his confrontations with police. DL has not shown that, as a former student, he was allowed to be in a campus library at that time. Further, his position is also contradicted by his repeated claims that he was not trespassing because he was awarded U of M in a federal court case in 2014. Considering DL’s various assertions about U of M alone, [H] was not incorrect that DL had delusional ‘episodes.’” The court concluded that documents admitted at the evidentiary hearing “supported petitioner’s view that DL required ongoing involuntary treatment because they showed that he had lasting delusional beliefs about the reasons for his arrest and commitment, and a continuing denial of any mental illness for which he needed treatment.”