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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Whether a prima facie violation of the Michigan Environmental Protection Act (MEPA) was established; Judicial review of an alleged MEPA violation; MCR 324.1701; Attorney Gen ex rel Natural Res Comm’n v Balkema; Dafter Sanitary Landfill v Michigan Dep’t of Natural Res; The Portage factors; Portage v Kalamazoo Cnty Rd Comm’n; Michigan Electrical Transmission Company, LLC (METC); Wildlife Recovery Association (WRA)
The court held that the trial court did not err by finding that defendant-WRA failed to establish a violation of the MEPA arising from plaintiff-METC’s plans to build transmission lines over WRA’s wetlands. METC sought to acquire an easement across the front of the WRA property for the transmission line. WRA filed a counterclaim under the MEPA, asserting “that both the construction of the transmission line and the transmission line itself would kill many animals and damage the value of the property as a wildlife sanctuary.” The trial court granted summary disposition for METC, finding WRA failed to establish a prima facie violation of the MEPA. On appeal, the court rejected WRA’s argument that the trial court erred by finding METC’s plans did not impact the environment to the extent necessary to warrant judicial intervention pursuant to the MEPA. It found that the trial court appropriately considered the Portage factors and did not err in its analysis. As to the first factor, it “did not err by finding that the land did not contain wildlife that is rare, unique, endangered, or historically significant.” As to the second factor, it did not “err by finding that the resources at issue are easily replaceable.” And as to the third factor, there was “no evidence suggesting that other natural resources will be impacted.” Finally, as to the fourth factor, it did not “err by finding that WRA did not establish that the impact of the transmission lines would affect a critical number of animals or vegetation.” Affirmed.
The Federal Communications Act & the Telecommunications Act ; “Telecommunications service” regulation (including net-neutrality restrictions) under Title II of the Communications Act; The Federal Communications Commission’s (FCC) regulation of Broadband Internet Service Providers; Deference under Chevron USA Inc v Natural Res Def Council, Inc (Chevron deference); Loper Bright Enters v Raimondo; Whether Broadband Internet Service Providers provide a “telecommunication service”; 47 USC § 153(51) or an “information service” (§ 153(24)); The Safeguarding Order’s provisions concerning “mobile broadband”; § 332(d)(1)
In these multi-circuit Petitions for Review of the FCC’s Safeguarding and Securing the Open Internet Order (FCC 24-52), the court granted the petitions for review and set aside the Order. It held that because Broadband Internet Service Providers offer only “information services,” the FCC lacks the statutory authority to impose its “net-neutrality policies” through the telecommunications service provision of the Communications Act. Further, the Act does not permit the FCC to classify mobile broadband as a “commercial mobile service” and then impose “net-neutrality restrictions” on those services. The court considered the Communications Act and various administrations’ attempts at Internet regulation/deregulation. It noted that the D.C. Circuit had “applied the now-overruled Chevron doctrine” in upholding “wholly inconsistent regulations as ‘permissible’ under the Act.” Under the Safeguarding and Securing the Open Internet Order at issue here, “Broadband Internet Service Providers are again deemed to offer a ‘telecommunications service’ under Title II and therefore must abide by net-neutrality principles.” Pursuant to Loper Bright, rather than afford deference to the FCC’s reading of the statute, the court was tasked with determining “‘the best reading of the statute’ in the first instance.” It concluded that the “Order misreads the text of the Communications Act as it applies to Broadband Internet Service Providers and mobile broadband services.” The question was whether, in providing the public Internet access, Broadband Internet Service Providers “are merely a conduit for data transmission . . . and thus offer consumers a telecommunications service (as the Safeguarding Order concludes); or whether, instead, [they] offer consumers the capability to acquire, store, and utilize data—and thus offer consumers an information service.” In the court’s “view, the latter is the best reading of the Act.” It found that it made “sense to exclusively classify integrated services, including those offered by Broadband Internet Service Providers, as information services because the definition expressly contemplates telecommunications usage, tying the ‘offering of a capability’ to utilize (for example) information ‘via telecommunications.’” The court determined that the “key here is not whether Broadband Internet Service Providers utilize telecommunications; it is instead whether they do so while offering to consumers the capability to do more.” The court also held that “mobile broadband does not qualify as ‘commercial mobile service’ under § 332(d)(1) and therefore may not be regulated as a common carrier.”
Youth sentencing; Cruel or unusual punishment & proportionality; Miller v Alabama; People v Boykin; People v Stovall; Motion for relief from judgment (MFRJ)
The court concluded that Miller and its progeny rendered defendant-Eads’s “term-of-years sentence invalid under both the Michigan Constitution and our state’s proportionality requirement.” It held that defendant was “entitled to be resentenced in a manner that comports with this jurisprudence and duly accounts for his youth and its attendant characteristics at the time he committed the offense at issue.” Thus, the trial court’s order denying his MFRJ was reversed, his sentence for second-degree murder was vacated, and the case was remanded. Eads was convicted of second-degree murder and felony-firearm for crimes he committed as a juvenile. He was sentenced “as an adult and, departing upward from the guidelines,” consecutive terms of 50 to 75 years were imposed for second-degree murder. Overall, the court failed to see how his 50-to-75-year term-of-years sentence “could pass muster under the Michigan Constitution’s prohibition against cruel or unusual punishment, when the parolable life sentence at issue in Stovall could not.” Thus, it found his sentence was unconstitutional and he was entitled to resentencing. The court also concluded that a term of 50 to 75 years was “disproportionate to Eads and the circumstances surrounding his offense given his status as a juvenile at the time that he committed the offense and the inherent, constitutionally significant differences between juveniles and adults for purposes of sentencing.” It found the sentence was, “in purpose and effect, even more severe in some respects than the life-sentence alternative that our Supreme Court has now deemed so disproportionate as to be categorically unconstitutional for juvenile offenders such as Eads.” The court could not conclude “that such a sentence nonetheless meets our state’s proportionality requirement. Furthermore, while a trial court is not obligated to ‘give a detailed on-the-record explanation’ regarding each of the Miller factors when imposing its sentence,” it was “clear from the existing record that the court in this case did not consider Eads’s youth and its attendant characteristics as potentially mitigating factors.”
Warrantless home search; Drug-profile testimony; Sentencing; Scoring of OV 19; Discretionary sentencing decisions under MCL 333.7413(1); Extension of People v Norfleet; Doubling the authorized sentence; Doubling a defendant’s guidelines range; Effect of People v Lockridge on People v Williams; Discretionary consecutive sentencing; Adequate explanation requirement; MCL 768.7b(2)(b)’s mandatory consecutive sentence requirement; Cruel or unusual punishment; Judgment of sentence (JOS)
The court rejected defendant-Hines’s challenges to the warrantless search of his home and the admission of allegedly impermissible drug-profile testimony. But it found that there was insufficient evidence to score 25 points for OV 19. It further held “that the principles outlined in Norfleet apply to discretionary sentencing decisions under MCL 333.7413(1).” In addition, it found that Lockridge effectively overruled Williams. “Post-Lockridge, MCL 333.7413 has no effect on the advisory” guidelines but does “potentially increase the statutory minimum.” It concluded the trial court failed to “adequately explain its decision to impose discretionary consecutive sentences for” two of his convictions under MCL 768.7b(2). Finally, it rejected his claim that MCL 768.7b(2)(b)’s mandatory consecutive sentence requirement constituted cruel or unusual punishment. Thus, the court affirmed his convictions of possession with intent to deliver meth, second or subsequent offense; possession with intent to deliver less than 50 grams of fentanyl, second or subsequent offense; and possession of an imitation controlled substance with intent to distribute, second or subsequent offense. But it vacated his amended JOS and remanded for resentencing. It directed the trial court on remand to “reassess OV 19 and make specific findings on whether there was sufficient evidence of Hines’s intent to bring controlled substances inside a penal facility as opposed to mere incidental possession during his arrest and intake.” Resentencing was also required given the court’s “conclusion that, post-Lockridge, MCL 333.7413 no longer permits a trial court to double the sentencing guidelines. Finally, the trial court must reassess its discretionary decision to impose consecutive sentences under MCL 768.7b(2)(a) and, if it does so, must articulate its reasoning for imposing consecutive sentences.” As to his convictions, the court found that Hines could not “establish that admission of the evidence discovered in his home” or the drug profile evidence that was improper affected the outcome of the trial. As to his sentencing, the court concluded “the trial court sufficiently articulated its reasoning for doubling Hines’s statutory maximum sentence” but erred in doubling his guidelines. And its “failure to state its reasoning for imposing a discretionary consecutive sentence amounted to an abuse of discretion.” The court retained jurisdiction.
Prosecutorial error; Plain error review; Whether a missing witness jury instruction should have been given; Ineffective assistance of counsel; Failure to request a missing witness jury instruction; Cumulative error; Right of confrontation; Whether an error was outcome-determinative
The court rejected defendant’s claims of prosecutorial error and ineffective assistance of counsel. Further, it found that there was insufficient evidence for it “to determine whether a missing witness instruction should have been given.” Thus, there was no plain error in that regard. It also concluded it did not have to consider whether “challenged statements violated the Confrontation Clause because any alleged error was not outcome determinative.” Finally, it disagreed with defendant’s claim that he was denied a fair trial due to the cumulative effect of the errors he alleged on appeal. Thus, it affirmed his domestic violence and reckless driving convictions. The case arose from his “assault of the victim after she returned home to her apartment with her roommate, and defendant’s niece,” S. Defendant contended “the arresting officer’s testimony about [S’s] account violated his Sixth Amendment rights under the Confrontation Clause.” But the court noted that the “victim testified at length about defendant’s assault. While certain inconsistencies were noted for the jury, the victim was consistent that defendant had assaulted her. Thus, the jury was well within reason to find the victim’s testimony credible and convict defendant of domestic violence.” He next asserted the prosecution “erred by: (1) implying that [S] did not testify because of her relation to defendant, (2) stating that [S’s] account convinced the arresting officer that the victim’s allegations were true, and (3) generally using [S’s] account ‘as substantive evidence to corroborate and bolster the credibility of his complaining witness.’” Defendant further argued the trial court erred in refusing to give “a curative instruction or declare a mistrial as a result of the prosecutor’s errors.” The court disagreed in all respects. He did not show plain error as to the first two arguments, he abandoned the third argument, and as to the fourth, he never requested such relief. As to his cumulative error claim, all his “alleged errors pale in comparison to the victim’s own testimony, in which she consistently testified that defendant assaulted and choked her. While lacking, the evidence available on appeal demonstrates that a reasonable jury, even with a missing witness instruction or the omission of [S’s] account altogether, could find defendant guilty of domestic violence on the basis of the victim’s testimony.”
Habeas corpus; The Antiterrorism & Effective Death Penalty Act (AEDPA); 28 USC § 2254(d). Ineffective assistance of counsel; Strickland v Washington; Failure to convince petitioner to take a plea deal; Post-conviction expert’s affidavit; Claim that trial counsel “prevented” petitioner from taking the stand; Failure to present mitigation evidence at the penalty phase; The trial court’s acceptance of a “mitigation waiver”
Rejecting petitioner-Fry’s ineffective assistance of counsel claims and holding that he could not “show that the state courts violated clearly established law under AEDPA[,]” the court affirmed the district court’s denial of his habeas petition. Fry was convicted of aggravated felony murder. As to his ineffective assistance claims, the state appellate “court reasoned that, even if his counsel had pushed him harder on the weakness of his case and even if they had enlisted family members to try harder to convince him to take the plea, Fry still would not have accepted the plea offer.” The court noted that “a defendant unwilling to consider his family’s input about whether to present mitigation evidence likely also would be unwilling to change his mind over their views about whether to accept a plea deal.” It also rejected his claim that the state court should have addressed the affidavit of an attorney expert who averred that counsel had offered deficient representation. The “only ruling that matters here involves prejudice, and this attorney, who had no role in the original trial, is even less qualified to explain what Fry would have done with different representation.” He also claimed that his counsel was ineffective for “unreasonably prevent[ing] him from taking the stand” and exercising his right to testify. But one of his trial attorneys testified at evidentiary hearings that “Fry at first wanted to testify, but he changed his mind as the trial progressed and eventually made the ‘unequivocal’ decision not to” do so. Further, Fry did not object at trial when the defense rested without calling him. And considering the detrimental evidence that could have surfaced should he have chosen to testify, the court found that the state courts reasonably concluded it would have been reasonable trial strategy to not have him do so. The court also agreed with the state courts’ rejection of Fry’s argument that his counsel’s failure to present mitigation evidence at sentencing constituted ineffective assistance. “The state court reasonably rejected this claim on no-prejudice grounds—namely, on the ground that Fry would not have presented mitigation evidence even with more forceful arguments by counsel in favor of it.” The trial court explained the importance of mitigation evidence, but when it told him “that all he needed to do was to persuade one juror against the death penalty, Fry responded firmly: ‘The hell with them, Your Honor.’” He also declined “the opportunity to make an unsworn statement to the jury.” As to his claim the trial court violated his rights by accepting his mitigation waiver, “[g]iven Fry’s unwavering attitude during his colloquy with the court, a fair-minded jurist could agree that no error occurred when the trial court respected Fry’s wishes to forgo the presentation of mitigation evidence.”
Sentencing; Procedural reasonableness; The 18 USC § 3553(a) factors; Consideration of a defendant’s “future dangerousness” based on mental health issues; United States v Moses
The court held that the district court did not improperly rely on defendant-Adams’s mental health status as the basis for its upward variance in sentencing him. Adams, who has an extensive history of mental health issues, was found unfit to stand trial on his firearm charge. After treatment, he pled guilty and was sentenced to prison and supervised release. After his release from prison, he violated his supervised release by missing scheduled drug tests, losing his job, and not allowing for home visits. After another attempt at treatment, he again violated the terms of his release. He did not report to probation, and was arrested for assault and breaking and entering. A copy of a competency evaluation was considered during sentencing that documented his “violent ideations,” and the government pointed out “the violent nature of” his assault charge. The district court imposed “an above-Guidelines sentence of 24 months in prison—the statutory maximum and nearly double the high end of the Guidelines range.” On appeal, he alleged that its upward variance was procedurally unreasonable. He claimed that it “inappropriately used [his] mental illness as an aggravating sentencing factor instead of a mitigating one, choosing a longer sentence to account for the fact that the public needed to be protected from Adams because of his mental illness.” The court noted that he raised “important questions about whether district courts may vary a sentence upwards to account for the risk of danger a defendant may pose to the community because of his mental health issues.” But it affirmed the district court’s decision “on a different basis.” Its review of the sentencing transcript indicated that “the district court based its sentence on Adams’s conduct, including his choice to leave the halfway house early, his criminal activity during the year in which he absconded, and the failure of its previous interventions to prevent him from committing further offenses.” It explained that even if this conduct may have arisen from his mental illness, “a district court may rely on a defendant’s past conduct in determining the appropriate sentence.” When sentencing Adams, the district court reviewed the § 3553(a) factors, and “appeared to have explained that it felt it needed to impose a longer sentence despite Adams’s mental health, not because of it, and that Adams’s mental health concerns could no longer be treated as mitigating against jail time considering his flagrant violations of his supervised release conditions. That decision was based on permissible factors.” The court found the district court’s “passing references to the competency evaluation” did not form the basis of its sentencing decision.
Motion for sentence reduction under 18 USC § 3582(c)(2); The newly created USSG § 4C1.1; § 1B1.10(d); Criteria that a defendant without a criminal history must meet under § 4C1.1(a); Whether defendant had not “personally caused” the victims “substantial financial hardship”
The court held that defendant-Hanson was ineligible for a reduction under USSG § 4C1.1 in his sentence for wire fraud because he had personally caused substantial financial hardship to at least one of his victims. Hanson sought a reduction in his 46-month sentence under § 3582(c)(2), which permits a reduction for a retroactive change to the guidelines after considering the § 3553(a) factors. The government argued that he was not entitled to the reduction because he had “personally caused ‘substantial financial hardship to at least one of his victims.’” The district court agreed and ruled that he was ineligible for a reduction under §4C1.1(a)(6). It also concluded the § 3553(a) factors supported the denial. Section 4C1.1 sets forth 10 requirements for a defendant without a criminal record to qualify for a two-level reduction. On appeal, Hanson disputed the district court’s finding that he failed to meet one of the criteria—that he “‘did not personally cause substantial financial hardship.’” The court first noted that district “courts are not strictly limited to considering the enumerated factors” set forth in “§ 2B1.1 n.4(F) when determining whether a defendant caused substantial financial hardship.” It further noted that “Application Note 4(F) does not describe every type of substantial financial hardship. It merely provides a list of exemplars from which we may extrapolate analogous conduct.” Next, the court concluded “the district court did not err––much less clearly err––in its factual determination that Hanson’s victims suffered substantial financial hardship under § 4C1.1(a)(6).” It found that he had defrauded at least 30 individuals, with total losses of $1,122,805.74. And victims testified to the hardships they endured because of the fraud. The court rejected his claim that the district court did not “make sufficient specific individualized determinations regarding financial hardship.” Affirmed.
Auto negligence; Service; Extension of a summons; Substitution of service when a party dies; MCR 2.202(A)(1); Principle that deceased persons cannot be sued; Comparing Potter v Devine (Unpub) & Packard v Thomas (Unpub); Principle that an action against a deceased person must be brought against the estate; Williams v Grossman; Personal representative (PR); Dismissal; MCR 2.202(A)(1)(b)
The court held that the trial court did not err by dismissing plaintiff’s action against the deceased defendants. The parties were involved in a car crash that resulted in serious injuries to plaintiff and the deaths of defendants. Plaintiff then filed this lawsuit against defendants. After attempting to serve them, he learned that they had died, a fact he claimed to be unaware of when he filed suit. The trial court granted his motion for extension of the summons to allow him to “set up” estates for them and/or serve their insurer. Ultimately, however, it stated its belief that plaintiff was aware that defendants were deceased and should have known that the only way service could be proper was on the estate. Because “there was no estate, there was no way that alternate service could be proper, as it could not ‘reasonably effectuate actual service on the proper defendant.’” And because the motion for alternative service was improper on its face, it should not have been granted. On appeal, plaintiff argued that the trial court misapplied MCR 2.202(A) by dismissing the case instead of allowing him to substitute the estates, and that it “shortened the statute of limitations ‘by implication’ when it dismissed” the case without giving him time to create the estates. Adopting the reasoning in Potter and Packard, the court held “that a deceased person like the named defendants here cannot be sued as a matter of law.” A party “wishing to bring a cause of action against someone who is deceased must sue the deceased’s persons estate, not the deceased person.” As such, the “trial court did not err by dismissing this action filed against the wrong parties, who could not be sued as a matter of law.” In addition, because “the named defendants in this case were already deceased when plaintiff filed his” action, MCR 2.202(A) did not apply, and even if it did “the ‘proper parties’ to replace the deceased defendants were their estates.” Further, no PR “had been appointed for the named defendants’ estates when the trial court dismissed plaintiff’s complaint, so substituting in the proper parties at the time of dismissal was a legal impossibility.” The trial court “did not abuse its discretion by refusing to order the substitution of defendants . . . when there were no ‘proper parties’ who could be substituted for the deceased defendants.” Further, the fact it “was not required to dismiss this action does not establish that” it erred by doing so. Finally, plaintiff abandoned “his argument that a trial court errs by shortening a statute of limitations ‘by implication’” by failing to cite any supporting legal authority. In any event, the court found it meritless. Affirmed.
Wrongful-death medical-malpractice; Retroactivity of Eversole v Nash; Authority under MCL 600.2922(2); MCL 700.3701 (a relation-back provision included in the Estates & Protected Individuals Code (EPIC)); MCL 600.2912c; Personal representative (PR)
Finding in this wrongful-death medical-malpractice action that “the interpretation of MCL 700.3701 in Eversole is retroactive to plaintiff’s case,” the court reversed the trial court’s orders as to codefendants-Ascension, Dr. Schned, Dr. Peacock, Dr. Oxholm, Dr. Vempati, and Ms. Ignagni, and remanded, It otherwise affirmed the order granting summary disposition to defendant-Teamhealth under MCL 600.2912c. Plaintiff’s claims were dismissed on the basis that her appointment as PR of decedent-Paul’s estate “did not relate back to the time she filed the complaint on behalf of the estate.” Plaintiff argued that the court’s recent published decision in Eversole “affirms the statutory relation-back doctrine applies where a [PR] is appointed after the complaint is filed ‘so long as . . . the timely filing of the complaint, benefitted the estate.’ According to plaintiff, Eversole is controlling here and the trial court’s order granting summary disposition should be vacated.” The court held that “Eversole is retroactive to the trial court’s decision because Eversole merely interprets statutes in existence at the time the complaint was filed, and Eversole does not create new law.” As with the plaintiff in Eversole, in this case, “plaintiff’s complaint does not conform to MCL 600.2922(2) and MCL 600.5852.” The court also held that as “with the plaintiff in Eversole, MCL 700.3701, a relation-back provision included in [EPIC] provides plaintiff relief here.” But because the record did “not reflect when, or if, plaintiff’s appointment as [PR] of Paul’s estate was accepted and the letters of authority were issued, there remains a genuine issue of fact regarding whether plaintiff is the real party in interest with standing to bring this wrongful-death medical-malpractice action.” The court concluded that the “trial court knew as much when it stated on the record that ‘[n]obody attached the [l]etters of [a]uthority, I don’t even know if she ever filed an acceptance,’ but nevertheless, erred in granting summary disposition as to all defendants.”
Whether negligent entrustment & owner’s liability claims are barred by immunity under the Recreational Land Use Act (RUA); MCL 324.73301(1); Distinguishing Milne v Robinson
On remand, the court, affording the RUA broader application, found the trial court appropriately granted summary disposition to defendant on plaintiff’s negligent-entrustment claim. However, it reversed the trial court’s award of summary disposition on the owner’s liability claim and remanded. The court needed to “decide whether plaintiff’s claims for negligent entrustment and owner’s liability are barred by immunity under the RUA.” Plaintiff’s first claim asserted “that defendant negligently entrusted her ORV to [K], who negligently drove the ORV on defendant’s land and thereby caused plaintiff’s injuries.” Plaintiff contended “the immunity afforded to land owners by the RUA only applies to premises-liability claims. Our Supreme Court rejected that argument in Milne.” Instead, the court noted that “Milne instructs us to engage in a broader application of the RUA, which ‘limits a landowner’s liability under specified circumstances to gross negligence or willful and wanton misconduct if an injury occurs to someone they allowed to use their property for certain recreational purposes.’” The court held that plaintiff’s “owner’s-liability claim under MCL 257.401 is restricted by our Supreme Court’s decision in Milne.” It noted that the “question posed in that case was ‘whether the RUA applies to a statutory owner-liability claim under MCL 257.401(1) when a landowner owns a motor vehicle that they allow another to use for recreational purposes on their property.’” It noted that our “Supreme Court answered that question, stating that ‘the Legislature intended the RUA to limit an owner-liability claim.’” Thus, it held that “[t]he RUA applies to plaintiff’s proposed owner liability claim and requires her to demonstrate that defendant was grossly negligent or engaged in willful and wanton misconduct to prevail.” In this case, “in contrast to Milne, plaintiff has come forward with evidence of gross negligence, so her owner’s-liability claim is not entirely foreclosed by the RUA. But in her second amended complaint, plaintiff repeatedly alleges that ‘[K] negligently operated the ORV,’ causing her injuries.” Under Milne, “such allegations of simple negligence cannot support plaintiff’s owner’s-liability claim. Because the RUA applies to plaintiff’s owner’s-liability claim, plaintiff must ‘demonstrate that defendant was grossly negligent or engaged in willful and wanton misconduct to prevail.’” Affirmed in part, reversed in part, and remanded.