Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
View Text Opinion Full PDF Opinion
Absolute immunity under MCR 9.125 (related to Attorney Grievance Commission (AGC) proceedings); Custom-or-policy exception in Smith v Department of Pub Health & Mays v Governor; Gross negligence exception of the Governmental Tort Liability Act (GTLA); MCL 691.1407(2); 42 USC § 1983; Eleventh Amendment immunity; Amendment to complaint; Attorney Discipline Board (ADB)
The court concluded the Court of Claims did not err in granting defendants summary disposition because they were entitled to immunity under MCR 9.125 as “to plaintiff’s claims of gross negligence and violations of his constitutional due-process rights. Neither the custom-or-policy exception of Smith nor the statutory gross-negligence exception” applied. Further, defendants-Armitage and Goetz were entitled to Eleventh Amendment immunity as to plaintiff’s § 1983 claim. Finally, he did not establish that he was “entitled to appellate relief on his claim that he should have been permitted to amend his complaint.” As to plaintiff’s “claims under the state constitution, [he] posits that an exception to the absolute immunity of MCR 9.125 exists under the principle espoused in Smith and Mays: that a state defendant may not claim immunity under a statute (or presumably court rule) when the plaintiff alleges that the state has violated its own constitution.” Plaintiff acknowledged “that this principle has not been expressly applied to MCR 9.125, but notes that the Michigan Supreme Court has made clear that the Michigan Constitution has primacy over laws establishing governmental immunity, and consequently argues that the absolute immunity of MCR 9.125 must yield” here. But the court found that he “failed to bring to light either a substantive or procedural due process claim with respect to defendants’ inactions.” He did not cite any “legal authority for the proposition that such governmental inaction, absent deliberate indifference that represents official policy, qualifies as a ‘custom or policy’ that would deprive defendants of the absolute immunity allowed by MCR 9.125.” Plaintiff next argued that MCR 9.125 immunity was “inapplicable under the gross negligence exception of the GTLA, MCL 691.1407(2), as to his claims against Armitage and Goetz.” The court held that “even if the statutory exception applied as a limitation on the scope of MCR 9.125,” he did not plead “facts constituting gross negligence.” Rather, he pled, “at most, intentional torts for which no exception to the governmental immunity provided by MCR 9.125, or by the GTLA, exists.” As to his § 1983 claims, the court concluded plaintiff failed to show “that a viable exception applied to the immunity provided by MCR 9.125 or the Eleventh Amendment.”
Venue; MCL 600.1646; MCL 769.26; People v Houthoofd; People v Fisher; Sufficiency of the evidence; Witness interference; MCL 750.122(6); People v Greene; Other acts evidence; MCL 768.27b; MRE 404(b); Unfair prejudice; MRE 403; Sentencing; Consecutive sentences; MCL 768.7b(2); Distinguishing People v Norfleet
Holding that there were no errors requiring reversal, the court affirmed defendant’s convictions and sentences. He was convicted of witness interference, conspiracy to commit witness interference, and CSC I and II, arising out of his sexual abuse of his stepson, JT, who grew up believing defendant was his biological father, as well as his attempt to get JT’s mother to stop cooperating with the authorities. The trial court sentenced him to 2 terms of 23 to 120 months for witness interference and conspiracy to commit witness interference, 300 to 480 months for CSC I, and 2 terms of 71 to 180 months CSC II, with the sentences to run concurrently with each other but consecutively to the sentences for witness interference and conspiracy to commit witness interference. On appeal, the court rejected his arguments that: (1) venue was improper; (2) the evidence was insufficient to support the witness-interference convictions; (3) the trial court erred by allowing the admission of other acts evidence; and (4) the trial court insufficiently articulated its basis for consecutive sentencing. First, there was “simply no basis to conclude that a miscarriage of justice occurred by virtue of the trial’s being held in Ingham County. Considering the evidence that was introduced in this matter, it would not be reasonable to conclude that the outcome would have been different if the CSC I charge had been tried in Clinton County, instead of Ingham County.” Second, the letter he sent to JT’s mother “could reasonably be interpreted as a willful attempt to interfere with JT’s ability to testify at the trial.” And she “testified that she perceived the letter as threatening and intimidating.” Third, the “other acts gave a fuller picture of defendant’s history and shed light on the likelihood of defendant’s having committed the charged crimes–and no abuse of discretion is apparent with regard to the trial court’s ruling.” And fourth, “the trial court did not, contrary to defendant’s argument, run afoul of Norfleet wherein this Court discussed articulation requirements for consecutive sentencing.”
Sentencing; Scoring of OV 8; MCL 777.38(1)(a); “Captive”; Justifying a departure sentence & its extent; Claim that the collection of fees should be delayed & the 20% late penalty imposed pursuant to MCL 600.4803(1) waived; Striking a reference from the PSIR
The court held that the trial court did not misscore OV 8 at 15 points and that it adequately justified its departure from the guidelines in sentencing defendant. The court also rejected his claim “that the collection of fees should be delayed and the 20% late penalty imposed pursuant to MCL 600.4803(1) should be waived.” But it remanded for the ministerial task of striking a reference to other pending charges from the PSIR. He pled guilty to assault by strangulation and was initially sentenced to “three years’ probation and 108 days in jail, with credit for 108 days served. Defendant repeatedly violated the terms of his probation and his probationary sentence was revoked. The trial court departed from the recommended” 19 to 38-month minimum guidelines range and imposed a 76 to 120-month sentence. The court first held that OV 8 was properly scored because the evidence showed “that the victim—defendant’s then-pregnant girlfriend—was held captive longer than needed to commit the assault.” The record indicated “that after she was assaulted, the victim was confined in a bedroom. She was unable to open the door and exit because defendant put his fingers through a hole in the door where the door handle would have been and held it closed, i.e., he used physical force to keep the door closed so she could not exit through it. By doing so, [he] physically restrained [her] from leaving the bedroom.” The court also rejected his claim that his trial attorney was ineffective for not objecting to the scoring. As to the departure sentence imposed, “strangling a woman who is 14 weeks pregnant is a very serious offense. Although the victim recanted her allegations, the statements she gave to officers on the scene immediately after the assault indicated that it was a very violent and prolonged attack.” In addition, defendant “has a significant criminal history.” His 10-point PRV 5 score indicated “that only three or four of the listed eight misdemeanor convictions were scored.” And his 30-point PRV 2 score did “not account for all of [his] felony convictions.” The fact that he “had seven felony convictions in the 10 years since he was 17 years old evidences a pronounced difficulty in conforming his behavior to the law, as do his numerous probation violations. Both call into question his” rehabilitation potential. Affirmed but remanded.
Ineffective assistance of counsel claims against a standby attorney; People v Kevorkian; Untimely receipt of discovery material; Motion for a directed verdict; Jury voir dire; Prosecutorial misconduct; Authentication of email evidence; MRE 901 & 1002; Sentencing; Upward departure from the guidelines; Proportionality; Distinguishing People v Dixon-Bey
The court held that defendant failed to establish a valid claim for ineffective assistance of standby counsel and that there was no prosecutorial misconduct. It found no merit in his claims that he was not allowed to question everyone who was seated on his jury and that an e-mail admitted into evidence was not properly authenticated. Finally, he failed to show the trial court erred in departing upward from the guidelines in sentencing him. Thus, it affirmed his convictions of making a threat of terrorism, second-degree arson, and unlawful possession of a harmful device resulting in property damage, as well as his concurrent sentences of 10 to 20 years for the threat of terrorism conviction and 5 to 20 years for his other convictions. The court noted that in Kevorkian, it “explained that access to standby counsel can be described ‘as a matter of grace, but not as a matter of right.’” It further determined there that with “‘no constitutional right to an attorney, a defendant proceeding in propria persona has no basis to claim that the attorney must abide by constitutional standards.’” Defendant’s first standby counsel issue related to 10 voicemails the prosecution played at trial that defendant allegedly left on a victim’s phone. They were not played at the preliminary exam, “defendant did not know that they were going to be presented until four days before trial, and [he] did not have the opportunity to hear them until the morning of the trial . . . .” The prosecution did not send him the recordings (he was in jail while awaiting trial) “but they were provided to his standby counsel approximately one month before the trial.” While it was “clear that defendant should have been given these recordings sooner[,]” the court noted that he “did not have a right to receive this material from his standby counsel. The error here was made by the prosecutor, who should have sent the discovery directly to defendant rather than his standby counsel.” As to his claim based on standby counsel moving for a directed verdict of acquittal on the threats of terrorism charge, the court concluded “standby counsel did not concede guilt to any crimes, and the alleged concession of guilt did not take place in front of the jury.” As to his sentences, the trial “court’s detailed and thorough rationale for departing from the guidelines is entirely supported by the record” and this case was nothing like the one on which he relied, Dixon-Bey.
Cancellation of removal; 8 USC § 1229b(b)(1); Whether petitioner established that removal would result in “exceptional & extremely unusual hardship”; Whether the court should defer to the Board of Immigration Appeals (BIA) on the legal meaning of exceptional & extremely unusual hardship; Loper Bright Enters v Raimondo; Immigration judge (IJ)
The court held that petitioner-Moctezuma-Reyes failed to establish a requirement necessary for cancellation of removal under § 1229b(b)(1)— that his removal would result in “exceptional and extremely unusual hardship” to his two young sons (who are U.S. citizens). The IJ and the BIA rejected his application for cancellation of removal, finding that he did not satisfy the requirement that a petitioner establish that “‘removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.’” He argued that “his removal would result in ‘exceptional and extremely unusual hardship’ for his two youngest children who are American citizens” and are 14 and 7 years old. The court first considered whether it should “defer to the BIA on the legal meaning of ‘exceptional and extremely unusual hardship.’” Reviewing the Supreme Court’s decision in Loper Bright, the court concluded § “1229b(b)(1)(D)’s ‘exceptional and extremely unusual hardship’ standard does not qualify for this sort of deference.” It found that the statutory language does not vest “the BIA with discretion to determine the meaning” of this standard. Thus, the court “independently assess[ed]” the meaning. It determined “that ‘exceptional and extremely unusual hardship’ means hardship sustained by a deported alien’s qualifying relatives that’s significantly different from or greater than the hardship that a deported alien’s family normally experiences.” It noted that ordinary “deportations create hardship. But as compared to other deportations, many severe hardships resulting from deportation aren’t rare, but expected—like the loss of financial prospects, separation from loved ones, and reduced educational opportunities. In other words, this is a difficult burden for a petitioner to meet.” Turning to the issue of whether Moctezuma-Reyes met it, the court noted that “his sons aren’t without a support structure in” the U.S., and do not “have ‘compelling special needs in school.’” It denied his petition for review.
Termination under §§ 19b(3)(c)(i), (g), (j) & (k)(ii); Principle that only one statutory ground must be established; In re Ellis; Best interests of the children; MCL 712A.19b(5); In re White
Noting that respondent-father failed to challenge three of the statutory grounds for termination of his parental rights, and that termination was in the children’s best interests, the court affirmed the trial court’s order terminating his rights. His rights were ultimately terminated on the basis of his sexual abuse of one of the children. On appeal, the court rejected his argument that a statutory ground for termination was not met, noting that “[b]ecause only one statutory ground must be established by clear and convincing evidence to terminate parental rights, respondent’s failure to challenge the trial court’s findings under” §§ (c)(i), (j), and (k)(ii) (he only challenged § (g)) precluded appellate relief for this issue. The court also rejected his claim that termination was not in the children’s best interests, noting the record reflected that the trial court considered the needs of each child when making its best-interests determination. It acknowledged the children’s ages and noted that each of them had differing developmental delays and various special needs. In addition, it found respondent “could not provide for any of the children’s needs and that each child’s need for safety, security, and stability outweighed any bond with” him. Further, none of the children ever asked about him, none of them “received the specialized treatment and therapy that they each needed until they were placed in their preadoptive foster homes, and respondent admitted that he had not participated in any parenting classes meant to assist him in caring for any of his children’s needs.” They also “demonstrated significant food insecurity in their foster” homes. Moreover, the child who was sexually abused “continued to demonstrate sexual behaviors that were inappropriate for a child her age, [and] again reported to clinicians and DHHS employees that respondent had sexually abused her[.]” Finally, respondent “was unable to support himself, let alone one or more of his children, given that he struggled to maintain full-time employment for any meaningful period of time, continually relied on money from his family members for basic necessities, and still lived in a one-bedroom motel room—housing he acknowledged was inappropriate for any of his children.”
Termination under § 19b(3)(j); Doctrine of anticipatory neglect; Children's best interests
The court held that the trial “court did not clearly err by finding by clear and convincing evidence that there was a reasonable risk RS, RH, and IF would be harmed if returned to [respondent-father.] Also, the trial court did not clearly err by finding that termination of parental rights was in” their best interests. Respondent’s primary stance was “that the trial court clearly erred by believing RS’s and BP’s allegations of sexual abuse.” This argument was without merit. “The girls both testified openly, unambiguously, and unequivocally about the abuse to which respondent subjected them.” The trial court found them “credible, and respondent has presented us with nothing that overcomes the deference owed to this finding.” Respondent emphasized “the delays in disclosure, but this argument was refuted by expert testimony regarding the behavior of child sexual abuse victims. Further, RS and BP both testified clearly, while respondent’s testimony was evasive, tangential, and bordering on chaotic.” Respondent took “exception to the trial court’s application of the doctrine of anticipatory neglect.” The court noted that the “trial court acknowledged that RH and IF are boys, but it did not find this difference to outweigh the other circumstances. First, respondent threatened to sexually assault IF when he was assaulting BP. Second, RH and IF are now similarly aged to RS and BP at the time respondent abused them. Third, respondent has refused to accept any responsibility for his actions and instead insisted that his accusers were lying. Fourth, respondent’s primary source of support is his mother, and she demonstrated a propensity for enabling and avoidance. Fifth, RS testified that she believed respondent posed a danger to any children. Finally, these differences are not germane to the facts that respondent offered to give BP methamphetamine and has a history of domestic violence; both facts also suggest a risk of harm if any children are returned to respondent.”