Challenges to the Air Force’s COVID-19 mandate under the Religious Freedom Restoration Act (RFRA or the Act); Mootness; Effect of defendant’s rescission of the vaccine mandate; Whether the government waived sovereign immunity in the RFRA; Whether plaintiff’s claim for lost drill pay & retirement points constituted “money damages” barred by sovereign immunity

The court affirmed the dismissal of plaintiff-Poffenbarger’s (a member of the Air Force Reserve) claim for lost drill pay and retirement points, holding that they constituted “money damages” and thus, were barred by sovereign immunity that the government did not waive in the RFRA. When Poffenbarger’s request for a religious exemption to the Air Force's COVID-19 mandate was denied, his refusal to be vaccinated resulted in his being placed “on ‘No Pay/No Points status’—an inactive status on which he could not attend drills and thus could not earn pay and retirement points.” He sued defendants-Air Force officials claiming that its COVID-19 mandate, as applied to him, violated the RFRA and the First Amendment. After the mandate was rescinded, the district court dismissed the case as moot. The court agreed with Poffenbarger that the case was not moot and turned to the issue of whether his claim for drill pay and retirement points was barred by federal sovereign immunity. The RFRA “has waived the federal government’s immunity to some extent;” the issue concerned “‘the scope of that waiver.’” Whether there was a waiver of immunity as to Poffenbarger’s claim for lost drill pay and retirement points “depends on whether that relief, against these officials, is ‘appropriate relief’ as the Act uses that term.” The court reviewed the Act and noted that “every circuit court to have reached the issue” has held that the “‘RFRA does not authorize damages suits against the United States[.]’” The court agreed, concluding that “‘appropriate relief’ as used in the RFRA is too vague a phrase to waive unequivocally the federal government’s immunity from damages suits.” Thus, the court had to consider whether Poffenbarger’s claim for lost drill pay and retirement points constituted money damages and was therefore barred. It held that he was seeking “retrospective compensation for a previous legal wrong—which is to say it is money damages.” This was also true for the retirement points. Thus, the relief he sought was “relief to which the government remains immune.”

Prearrest delay; Actual & substantial prejudice; People v Patton; The 180-day-rule; MCL 780.131(1); MCL 780.133; People v Lown; Speedy trial; People v McLaughlin; Exclusion of evidence; Authentication; MRE 901; Mitchell v Kalamazoo Anesthesiology, PC; Self-authentication; MRE 902; Ineffective assistance of counsel; Prejudice; Sentencing; Reasonableness & proportionality; Scoring of OV 4 (serious psychological injury); MCL 777.34(1)(a); Scoring of OV 10 (exploitation/predatory conduct); MCL 777.40(1)(a) & (3); People v Cannon; Judgment of sentence (JOS); Michigan Department of Corrections (MDOC)

Finding no errors requiring reversal, the court affirmed defendant’s convictions and sentence, but remanded for the ministerial task of correcting the JOS. He was convicted of CSC I for sexually abusing the young victim and sentenced as a fourth-offense habitual offender to 456 to 900 months. On appeal, the court first held that his pre-arrest delay did not constitute a violation of his due process rights, finding he failed to show “he experienced substantial prejudice or that the delay had a significant adverse impact on his case, or that the delay ‘meaningfully impair[ed] [his] ability to defend against the charge in such a manner that the outcome of the proceedings was likely affected.’” As to the denial of his motion to dismiss based on an alleged violation of the 180-day rule, the court noted that had the prosecution expedited the trial without adjudicating numerous motions he filed, “significant due-process issues would have arisen.” The court next found that his right to a speedy trial was not violated as he failed to show “the reasons for the delay were mostly or primarily attributable to the” prosecution, or that he was prejudiced. The court further held that the trial court did not err by refusing to allow the introduction of a prisoner movement document from the MDOC, and that his trial attorney was not ineffective assistance for failing to properly authenticate the document. “Defendant does not claim that any of the relevant requirements for self-authentication under MRE 902 were satisfied, and he has not provided any legal authority supporting his assertion that a public record may somehow be self-authenticated in another manner.” And because he “cannot demonstrate the necessary prejudice, he has not shown that he was denied the effective assistance of counsel.” The court also found that the trial court did not err in scoring OVs 4 and 10, concluding: (1) the 10-point score for OV 4 was “supported by substantial evidence in the record reflecting a serious psychological injury”; and (2) as to OV 10, “all three prongs of the Cannon test were met.” Finally, the court determined defendant’s argument that he “improperly received a ‘de facto’ life sentence [did] not establish that his within-guidelines sentence was disproportionate.”

Search & seizure; Motion to suppress evidence; Whether the search warrant affidavit provided sufficient “probable cause”; Nexus; Failure to specify that defendant lived at the address to be searched; Constitutionality of an “unsigned warrant”; United States v Beals; United States v Lyons (1st Cir)

[This appeal was from the WD-MI.] The court held that it was unnecessary for the warrant affidavit to contain a specific sentence stating that defendant-Whiteside lived at the searched address. Under the totality of the circumstances, there was a “substantial basis” to support a magistrate’s finding of probable cause. And for the first time in this circuit, the court held “that the Fourth Amendment’s text does not require a signature for a warrant to be issued.” Whiteside was charged with FIP after a search of his residence for evidence related to stalking charges. He moved to suppress the firearm evidence arguing that the warrant was invalid because the issuing judge only signed the affidavit, not the warrant itself. At the motion hearing, his attorney “also argued that the affidavit did not include facts that showed a nexus between the criminal activity and Whiteside’s residence.” The district court denied the motion and Whiteside pled guilty, reserving the right to appeal the motion denial. The court first rejected his argument that the affidavit lacked probable cause. The warrant sought evidence of stalking, specifically including electronic media storing data or images, computer devices, and mail or other documents showing Whiteside’s residence/ownership of the apartment. Although the affidavit did not specifically state that he lived at the search address, it contained evidence from the victim that “pointed directly to why this evidence existed at Whiteside’s home[.]” It detailed evidence of the creation of a DVD and other explicit imagery that could be connected to his electronics. The court held that there “was plainly a nexus here[.]” As to his argument the affidavit did not show that the apartment was his residence, while it did not explicitly say that it was, “the totality of the information presented—particularly the details of Detective [M’s] investigation—support the reasonable inference that it was Whiteside’s residence.” He also argued that the unsigned warrant was invalid. He attempted to read Beals “to say an unsigned warrant cannot be issued as a matter of law. But Beals does not require such an unequivocal rule.” And the court noted that such “a per se rule would put our court out of step with every other circuit to consider the question.” Rather, it agreed with the other circuits that have considered the issue. As the First Circuit explained in Lyons, once the “probable cause determination has been made, there is ‘no convincing reason to find implicit in the Fourth Amendment a constitutional mandate that the magistrate who has made a probable cause determination also sign the warrant.’” Affirmed.

Statutory penalty interest; Distinguishing Hurt v Depositors Ins Co (Unpub); Griswold Props, LLC v Lexington Ins Co (Griswold I); MCL 500.2006(3) & (4); “Satisfactory proof of loss”; Withheld depreciation claim; Motion to amend a complaint; Futility

The court reversed the trial court’s decision granting plaintiff-MemberSelect’s summary disposition motion and ruling that it did not owe defendants-the Yonos “penalty interest on the basis of the Yonos’ failure to submit a satisfactory proof of loss, solely relying on” the court’s decision in Hurt, and remanded. It affirmed in all other respects. The court held that Hurt was distinguishable from this case. The Yonos contended “that, instead of relying upon Hurt, the trial court should have applied the reasoning of” the court’s published decision, Griswold. MemberSelect argued that Griswold was distinguishable. While the facts here “do not precisely mirror Griswold, this Court’s interpretation of the penalty interest statute in Griswold provides guidance in the present matter.” The issue was “whether a question of fact exists as to whether the proof of loss submitted by the Yonos was satisfactory, such that MemberSelect was required to issue payment within 60 days pursuant to MCL 500.2006(4), and what amount of penalty interest is owed, if any, pursuant to the statute.” The court held that there “are no exceptions contained in subpart (4) indicating situations in which such penalty interest is not owed, including the exception argued by MemberSelect.” It found that the “Yonos’ obligation to provide sworn proof of loss within the initial 60-day period was limited to the information requested in [¶] four of the policy. Although they may have been required to provide additional information to trigger payment of the claim under MCL 500.2006, the Yonos were not required to provide any additional information to comply with” ¶ four. MemberSelect’s claim also conflated “the requirements of ‘satisfactory proof of loss’ under MCL 500.2006” with ¶ four. The court concluded that considering the record, “the issue of whether the Yonos presented MemberSelect with satisfactory proof of loss, more than 60 days prior to the payments made by MemberSelect in 2022, pursuant to MCL 500.2006(4), is a question of fact. Likewise, in the event that the jury decides that question in the Yonos’ favor, then the amount of penalty interest owed by MemberSelect is also a question of fact to be decided by the jury.” But it held that the “trial court did not err by granting MemberSelect summary disposition of the Yonos’ claim for withheld depreciation after the Yonos acquired another house because the claim lacks a legal basis.” Finally, the “trial court did not abuse its discretion by declining to address the new argument regarding the counterclaim amendment because, by failing to raise the issue until moving for reconsideration, the Yonos did not properly present it to the court. Regardless any amendment to the complaint would be futile.”

Priority dispute over the payment of personal protection insurance (PIP) benefits; Whether a shuttle bus was “operated in the business of transporting passengers” under MCL 500.3114(2); Farmers Ins Exch v AAA of MI; The “primary purpose/incidental nature test”; Smith v Farm Bureau Mut Ins Co of MI; Henry Ford Health Systems (HFHS); Michigan Assigned Claims Plan (MACP)

The court held that the trial court erred by granting summary disposition for defendant-insurer (Farmers) because questions of material fact remain whether the shuttle bus at issue in this case was operated “in the business of transporting passengers.” Plaintiff sought PIP benefits for injuries she sustained while riding as a passenger on defendant-HFHS’s shuttle bus. The shuttle bus was insured by defendant-Zurich. The MACP assigned Farmers as the servicing insurer for plaintiff’s claim. This appeal involved only a priority dispute between Farmers and Zurich. On that issue, the trial court granted summary disposition for Farmers, finding there was no question of material fact that the shuttle bus was operated in the business of transporting passengers. On appeal, the court agreed with Zurich that the trial court erred by granting summary disposition for Farmers, but noted that Zurich was also not entitled to summary disposition. “Farmers’s dispositive motion was granted before discovery was complete, and further discovery stands a fair chance of uncovering additional facts that could aid either party opposing the other’s motion for summary disposition.” The court agreed with Farmers to the extent it argued that, at this point in the proceedings, the “facts raise genuine issues of material fact whether HFHS’s shuttle-bus operation is more than an incidental component of its operation of a healthcare system. Yet, particularly in light of Farmers’s concession that it is unknown how many of HFHS’s employees and patients take advantage of HFHS’s shuttle service,” it concluded “that the trial court erred when it found, before the close of discovery, that there is no question of material fact that HFHS’s shuttle-bus service was more than an incidental or small part of its operation of a healthcare system.” And because “questions of material fact exist, Zurich is also not entitled to summary disposition. In short, because questions of material fact remain, a grant of summary disposition in favor of either party at this time would be improper.” Reversed in part and remanded.

Order requiring co-trustees to pay attorney fees; The Michigan Trust Code (MTC); MCL 700.7814(3); Failure to use State Court Administrative Office (SCAO) forms for an inventory & an accounting; Requiring an inventory of personal property; Improper auctioning of personal property; Reliance on MCL 700.7906; The MTC’s applicability; Whether parties had any vested right as co-trustees before the effective date of the MTC; Distribution formula; Applicability of MCL 700.2718(1); Removal of co-trustees; Request for appellate sanctions

The court held that the probate court did not err in requiring appellants-former co-trustees to (1) pay attorney fees for the time spent addressing “objections to their inadequate inventory and accounting” and (2) provide an inventory of the trust’s personal property. It also did not err in finding “they improperly auctioned off” personal property. Further, they had “no fixed or vested right as co-trustees that” was destroyed by the MTC and thus, could not “establish an unconstitutional impairment of a contractual obligation.” The court also held that MCL 700.2718(1) did not apply, and that the trust language was consistent with language it had previously found shows “an intent to distribute per stirpes[.]” Thus, the probate court did not abuse its discretion in ruling as it did on the distribution formula. As to the attorney fee issue, appellants focused only on the probate court’s reference to SCAO forms and failed to “acknowledge that [it] determined the accounting and inventory they filed were unclear and incomplete. The [probate] court concluded that a more comprehensive accounting and inventory were necessary for the benefit of the successor trustee, [appellee-]Abbey. By directing the appellants to use court forms, [it] aimed to ensure compliance with statutory reporting requirements. The shortcomings of the previously ordered inventory and accounting resulted in [it] imposing attorney fees for the time spent by counsel for the beneficiaries.” As to requiring them to provide a personal property inventory, the MTC “requires an annual report of trust property that includes, inter alia, ‘a listing of the trust property and, if feasible, their respective market values . . . .’ Although the word ‘inventory’ is not used, the statutory language is consistent with that term. An inventory is ‘an itemized list of current assets: as (1): a catalog of the property of an individual or estate . . . .’” The court found that the fact MCL 700.7814(3) “does not use the word ‘inventory’ is immaterial. The statutory language requires what amounts to an inventory.” And as the MTC applied here, it was “unnecessary to determine whether the trust agreement also mandates an inventory.” The court further determined that appellants’ auctioning “the personal property before the will was filed” disregarded the will’s terms, “which provided for the gift of personal property to the named beneficiaries.” Among other things, it also found no abuse of discretion in their removal as co-trustees.