Motion to compel arbitration of an employee’s claims under the Elliott-Larsen Civil Rights Act (ELCRA); Rayford v American House Roseville I, LLC; Interpretation of an arbitration agreement; Whether the agreement was unconscionable; Johnson v Best Buy Co, Inc; American Arbitration Association (AAA)

On remand from the Supreme Court for reconsideration in light of Rayford, the court held that the arbitration agreement at issue was not unconscionable. And because the agreement expressly provided “that its interpretation falls to the arbitrator, the trial court erred in interpreting it and ruling that plaintiff’s ELCRA claims fell outside its scope.” As an initial matter, while plaintiff asserted “the issue of whether the trial court was permitted to interpret the agreement” was unpreserved, the court disagreed, finding that it was properly raised in the trial court. The court next concluded that under the plain language of the agreement, “the trial court did not have the authority to interpret the arbitration agreement and decide whether plaintiff’s ELCRA claims were subject to arbitration. As a result, the only question that remains is whether the agreement itself is unconscionable.” The court then reviewed Rayford and its recent decision in Johnson, where it considered a similar issue on remand in the context of Rayford. Like the Johnson plaintiff, plaintiff’s challenge here was “‘not to a shortened limitations period, but to an arbitration agreement that was part of a larger employment application.’” As a result, Rayford’s specific holding did not apply, but the standards it applied did. As with “the agreement in Johnson, the arbitration agreement in this case subjected both employee and employer to the authority of an arbitrator who ‘shall administer the arbitration according to the Employment Arbitration Rules (or successor rules) of the’” AAA. Further, it “set forth which claims are and are not subject to its terms, and, ‘[o]verall, there is nothing within the [agreement] that strikes us as unusual, as it contains many provisions typically found in arbitration agreements.’” Thus, the court held that, as “in Johnson, ‘the arbitration [agreement] is reasonable, and in no way’” shocked its conscience. It again reversed the denial of defendant’s summary disposition motion as to plaintiff’s ELCRA claims and remanded for the trial court “to grant the motion and dismiss the case.”

Pro se representation; Faretta v. California; McKaskle v Wiggins; Hybrid representation with standby counsel; Whether the district court violated defendant’s Sixth Amendment rights by excluding him from the sidebar conferences; Standby counsel’s participation at sidebar conferences; Whether defendant knowingly & voluntarily waived his right to counsel, Wilson v Hurt; Whether the indictment was duplicitous; Alleged character evidence; Admission of text messages; The co-conspirator hearsay exception (FRE 801(d)(2)(E)); United States v Enright; Lay opinion testimony; FRE 701; Sentencing; Application of the “leadership” enhancement (USSG §3B1.1(c))

[This appeal was from the WD-MI.] For the first time in this circuit, the court addressed the issue of standby counsel’s participation at sidebar conferences, and held that pro se defendant-McNoriell’s right to self-representation was not violated. He was charged with conspiracy to distribute and possess with intent to distribute heroin and 500 grams or more of cocaine, and possession with intent to distribute 500 grams or more of cocaine. He chose to represent himself at trial. After two Faretta colloquies, he proceeded with the aid of standby counsel (G). They both actively participated in the trial—a “hybrid representation.” During trial, the district court had several sidebar conferences with G “acting on behalf of McNoriell (as agreed upon in the pretrial conference)[.]” The jury convicted McNoriell, and the district court sentenced him to concurrent prison terms of 110 months on each count. McNoriell first argued that it violated his Sixth Amendment rights by excluding him from the sidebar conferences. He conceded that by “invoking his right to self-representation, he necessarily waived the right to counsel.” The court noted that the “district court allowed McNoriell to engage in a hybrid representation arrangement that closely resembled a co-counsel relationship.” And McNoriell agreed to G’s “participation at sidebar conferences, including during voir dire, and failed to object to this participation during trial.” Pursuant to McKaskle, “when a pro se defendant agrees to ‘any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant’s acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced.’” The court held that “McNoriell made the knowing decision to represent himself, and he also clearly informed the court that [G] would convey McNoriell’s views and objections at sidebar.” Under the circumstances, standby counsel’s participation at sidebar conferences did not violate his right to self-representation. The hybrid arrangement did not “undermine McNoriell’s decision to represent himself.” The court cautioned district courts to consider the potential issues arising from permitting a hybrid representation. It rejected McNoriell’s duplicitous indictment claim, and upheld the district court’s application of a two-level leadership enhancement in sentencing him, as well as its challenged evidentiary rulings. Affirmed.

Motion to compel arbitration of an employee’s claims under the Elliott-Larsen Civil Rights Act (ELCRA); Rayford v American House Roseville I, LLC; Interpretation of an arbitration agreement; Whether the agreement was unconscionable; Johnson v Best Buy Co, Inc; American Arbitration Association (AAA)

On remand from the Supreme Court for reconsideration in light of Rayford, the court held that the arbitration agreement at issue was not unconscionable. And because the agreement expressly provided “that its interpretation falls to the arbitrator, the trial court erred in interpreting it and ruling that plaintiff’s ELCRA claims fell outside its scope.” As an initial matter, while plaintiff asserted “the issue of whether the trial court was permitted to interpret the agreement” was unpreserved, the court disagreed, finding that it was properly raised in the trial court. The court next concluded that under the plain language of the agreement, “the trial court did not have the authority to interpret the arbitration agreement and decide whether plaintiff’s ELCRA claims were subject to arbitration. As a result, the only question that remains is whether the agreement itself is unconscionable.” The court then reviewed Rayford and its recent decision in Johnson, where it considered a similar issue on remand in the context of Rayford. Like the Johnson plaintiff, plaintiff’s challenge here was “‘not to a shortened limitations period, but to an arbitration agreement that was part of a larger employment application.’” As a result, Rayford’s specific holding did not apply, but the standards it applied did. As with “the agreement in Johnson, the arbitration agreement in this case subjected both employee and employer to the authority of an arbitrator who ‘shall administer the arbitration according to the Employment Arbitration Rules (or successor rules) of the’” AAA. Further, it “set forth which claims are and are not subject to its terms, and, ‘[o]verall, there is nothing within the [agreement] that strikes us as unusual, as it contains many provisions typically found in arbitration agreements.’” Thus, the court held that, as “in Johnson, ‘the arbitration [agreement] is reasonable, and in no way’” shocked its conscience. It again reversed the denial of defendant’s summary disposition motion as to plaintiff’s ELCRA claims and remanded for the trial court “to grant the motion and dismiss the case.”

Adoption; Section 39 hearing; MCL 710.39; In re BKD; Adoption proceedings priority; MCL 710.25(1) & (2); Distinguishing In re MKK; Consent validity; Direct-placement adoption; MCL 710.44; Order of filiation; Stay of paternity action; In re MGR; Intervention; In re LMB

The court held that the trial court erred by failing to conduct the required Section 39 hearing, improperly delaying and dismissing the adoption proceeding, and improperly allowing the paternity case to proceed to an order of filiation while the adoption matter was pending. This case involved a child born to a 13-year-old mother, whose out-of-court consent placed the child with prospective adoptive parents. The 16-year-old putative father later filed a paternity complaint after the adoption petition had already been filed. The trial court adjourned and delayed the adoption matter for months, refused to accept the mother’s consent, dismissed the adoption petition, entered an order of filiation in the paternity case, and denied the prospective adoptive parents’ motion to intervene and stay that case. On appeal, the court held that the trial court was required to follow the prior remand order because it provided that the trial court “shall schedule a hearing pursuant to MCL 710.39[.]” It emphasized that “‘[t]he use of the word “shall” constitutes clear language designating a mandatory course of conduct . . . .’” The court next held that no good cause existed to delay the adoption proceeding because the putative father “failed to take any action to assert his rights” for months and “did not file his complaint for paternity until” 6/18/24 (almost six months after the child was born and placed with the prospective adoptive parents). The court further held that the record did not support the trial court’s conclusion that the mother’s consent was involuntary because the record failed to indicate that the mother “suffered from post-partum depression” and failed to “substantiate the [trial] court’s concern that ‘the consent was not freely and voluntarily given.’” Finally, the court held that the order of filiation was improperly entered and that the motion to intervene and stay should have been granted. Vacated in part, reversed in part, and remanded.

Parenting time denial; MCL 722.27a(1) & a(3); Shade v Wright; Established custodial environment (ECE); MCL 722.27(1)(c); Barretta v Zhitkov; Procedural due process; Souden v Souden; Support agreement; Laffin v Laffin; Child Custody Act (CCA)

The court held that the trial court did not violate plaintiff’s procedural due process rights, that the parties’ 2014 agreement was not void as against public policy, and that the trial court properly denied plaintiff parenting time because the record supported the conclusion that parenting time would endanger the child’s mental or emotional health and was not in his best interests. Plaintiff, the child’s biological mother, agreed in 2014 that defendant-father would have sole legal and physical custody, that she would have no parenting time, and that defendant alone would support the child. The child thereafter lived with defendant and his wife from birth and believed the wife was his biological mother. The trial court held an evidentiary hearing after plaintiff sought parenting time in 2024 and found that the best-interest factors overwhelmingly favored defendant. On appeal, the court held that plaintiff received due process because she had notice and “an opportunity to be heard,” and the hearing “allows a party the chance to know and respond to the evidence.” The court next held that the agreement was not void on public-policy grounds because, although parties cannot bargain away a child’s support rights, “an agreement by the parties regarding support will not suspend the authority of the court to enter a support order,” and the trial court ultimately decided parenting time and custody under the CCA rather than enforcing the agreement as dispositive. The court also held that defendant had the sole ECE because the child “had only known a life and home with defendant, and did not know plaintiff as his mother.” Finally, it held that denying parenting time was proper because the trial court found by clear and convincing evidence that the best-interest factors favored defendant and because it would be “traumatic” for the child to learn that plaintiff was his mother, supporting the conclusion that parenting time would endanger his mental or emotional health. Affirmed.

Asylum & withholding of removal; Whether petitioner established that he was “persecuted” because of membership in a particular social group; Preserving a claim; Forfeiture; Exhaustion of administrative remedies requirement; 8 USC § 1252(d); Whether the Immigration Judge (IJ) misapplied the “more likely than not” standard under the Convention Against Torture Act (CAT); Board of Immigration Appeals (BIA)

The court denied petitioner-Gamas-Vicente’s petition for review of the BIA’s denial of his application for asylum, withholding of removal, and CAT protection, holding that he forfeited his claims about the particular social groups he identified before the agency and that he failed to exhaust the three new ones he presented in his petition. His claims related to his alleged experiences with a “gang in Guatemala and his Mayan ethnicity.” An IJ rejected his application, ruling that the first three social groups he identified “swept too broadly and weren’t sufficiently particular to be recognized as a discrete group by Guatemalan society. The IJ also rejected all four groups for an independent reason: Gamas-Vicente failed to show that the gang targeted him because of his membership in any of them.” His CAT claim was also rejected on the basis he did not show “he was likely to be tortured or that the government would initiate, consent to, or acquiesce in any torture.” The BIA affirmed. On appeal, he brought various challenges to the BIA’s rejection of his claims. The court found that they all suffered “from the same flaw: Gamas-Vicente forfeited his arguments about the particular social groups he identified before the agency. And he failed to exhaust the three new groups he presents in his petition for review. Without membership in a particular persecuted social group,” his claims failed. It held that he forfeited the social groups he identified to the agency because in his petition for review, he did not contest the rejection of those groups. As to the three new groups he named in his petition, he failed to “‘preserve each claim’ by exhausting his remedies before the” BIA. Thus, he did not exhaust the new claims he made in his petition. The court also rejected his challenges that did not “depend on the particular-social-group requirement.” As to his claim that the IJ misapplied CATS’s “more likely than not” standard, it noted that the BIA determined he waived his CAT claim by not challenging it on appeal, and that he failed to challenge that waiver finding in his opening brief. Thus, he “forfeited any argument that he preserved the issue before the” BIA. He also did not exhaust his due process claim.

Personal protection insurance (PIP) benefits; Northland Radiology, Inc v Allstate Fire & Cas Ins Co; MCL 500.3107d(4)

The court vacated both the circuit court’s order on appeal and the district court’s order denying defendant-Liberty Mutual’s summary disposition motion, and remanded. Nonparty-F, who is insured with Liberty Mutual, was in a motor vehicle collision. Plaintiff-M1 asserted that, as the assignee of a no-fault insurance policy, it was entitled to PIP benefits from Liberty Mutual for services provided to F. The court found that it “seems apparent that Liberty Mutual initially failed to present sufficient factual evidence to support its motion for summary disposition, as evidenced by [its] late-included PIP Selection Form on reconsideration, and its effort to expand the record on appeal to the circuit court.” It noted “that there are some circumstances in which the trial court should explicitly indicate that it is denying a motion for summary disposition without prejudice and permit additional discovery to occur.” This case presented such a situation. “Further, while this appeal was pending, a different panel of this Court rendered an opinion,” Northland, holding that, “unless the applicant or named insured provides proof of status as a ‘qualified person’ by having ‘health coverage under parts A and B of Medicare,’ and also provides proof of ‘the applicant’s or named insured’s spouse[’s] and resident relatives[’]” qualified health coverage, the ‘applicant or named insured fails to make an effective election’ to opt out of PIP coverage.” In addition, “MCL 500.3107d(4) states that the policy is considered to provide unlimited PIP medical coverage[.]” The court noted that at “the time of Liberty Mutual’s motion, the record before the trial court was incomplete as to whether [F] had opted out of PIP coverage.” Further, it found that “although the district court correctly denied Liberty Mutual’s motion for summary disposition for lack of supporting evidence, it nonetheless determined that the denial letter and the insurance premium reductions ‘evidenced that PIP coverage was coordinated, not excluded.’” The court found “no evidence in the record to support that conclusion, but we shall leave it to the district court to reexamine the record on remand after further discovery if the parties dispute that matter.”

Conservatorship appointment; MCL 700.5106 & MCL 700.5409; Guardian ad litem (GAL) report access; MCR 5.121(D)(2)(a); Court-rule interpretation; Unpreserved issue review; Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, LLC

The court held that the probate court erred by relying on a confidential GAL report without affording petitioner, the minors’ father and a competing conservator applicant, an opportunity to examine and controvert it as required by MCR 5.121(D)(2)(a). Petitioner sought appointment as conservator for his three minor children after each child inherited $100,000 from their great-grandfather’s estate. But the GAL recommended appointment of an independent conservator and relied in part on a confidential exhibit that was not disclosed to petitioner. The probate court denied petitioner’s request, reasoning that his testimony showed he wanted to control when the children received the money after age 18 and intended to “hold the purse-strings” as a means of controlling them. On appeal, the court held that review of the unpreserved issue was warranted because declining review would create “manifest injustice” where the probate court relied on “undisclosed evidence to resolve a contested issue affecting statutory priority and fiduciary appointment[.]” The court next held that the rule’s language is mandatory because “‘[a]ny interested person shall be afforded an opportunity to examine and controvert reports received into evidence,’” and this “language imposes an affirmative duty on the court to ensure that the opportunity is provided once a report has been received into evidence[.]” The court further held that the rule contains no exception for confidential reports, explaining that if the Supreme Court had intended such an exception, “it could have done so expressly.” Because petitioner was never given that opportunity, he was entitled to a new hearing and “must be afforded the opportunity to examine any GAL report received into evidence.” Reversed and remanded.