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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Possession of metallic knuckles (MCL 750.224(1)(d)); Right to keep & bear arms for self-defense; Facial constitutional challenge under the Second Amendment & Const 1963, art 1, § 6; New York State Rifle & Pistol Ass’n, Inc v Bruen; District of Columbia v Heller; “Common use” consideration; Wade v University of MI (On Remand); A “dangerous & unusual” weapon; Historical use & regulation of metallic knuckles
The court rejected defendant’s facial challenge to the constitutionality of the statute prohibiting possession of metallic knuckles (MCL 750.224(1)(d)), holding that “there is an application of the statute that is constitutional under the Second Amendment[.]” Specifically, the ban “falls within the historical tradition of prohibiting the concealed carry of metallic knuckles as a dangerous and unusual weapon.” Thus, the court affirmed the trial court’s denial of defendant’s motion to dismiss the charge. Applying the Bruen test, it first considered whether metallic knuckles are covered by the Second Amendment. It noted that “protected ‘arms’ include only those weapons commonly used and possessed by law-abiding citizens for lawful purposes.” It further noted there is no consensus on whether “this ‘common use’ consideration” should be addressed during Bruen’s first or second step. The court concluded that it “is best considered under step one, as it is at that point that the challenger must prove that the arm at issue is facially covered by the Amendment.” The court inferred “that because a small minority of states do not regulate the possession and use of metallic knuckles, they are commonly used for lawful purposes.” Thus, it held “that defendant’s conduct of bearing [them] was an activity covered by the plain text of the Second Amendment, and therefore is presumptively constitutionally protected conduct.” Turning to Bruen step two, the court considered “how metallic knuckles were historically treated,” and determined “that from approximately 1845 and onward [they] were associated not with law-abiding citizens who sought to use the weapon for self-defense, but with criminals and aggressors, and were considered by the courts and legislatures of the mid-to-late nineteenth century as dangerous and unusual. And, these mid-to-late nineteenth century laws and decisions are a more specific articulation of colonial period laws that banned the public carrying of dangerous and unusual weapons.” The court noted that it was not “pointed to, nor have we found, any statutes or caselaw that consider metallic knuckles as anything other than dangerous and unusual, and as a weapon not possessed by law abiding citizens for lawful purposes.” It found that the various “laws and the decisions interpreting them set out a guiding historic principle that appears uniform amongst a majority of States: brass knuckles are dangerous and unusual weapons that have not, from 1791 through the post-Civil War era, played a role in the defense of self or others.”
Sufficiency of the evidence; Malicious destruction of fire or police property; MCL 750.377b; “Wilfully & maliciously”
Concluding that the “evidence was sufficient to prove that defendant was guilty of malicious destruction of fire or police property beyond a reasonable doubt[,]” the court affirmed. It found that Deputy B’s “testimony and the photographs supplied sufficient evidence for the jury to find beyond a reasonable doubt that defendant destroyed the mag lock wires.” Defendant argued “that even if the jury could find that she broke the wires, there was insufficient evidence to establish that she did so ‘wilfully and maliciously.’” B suggested “that defendant was made aware that she was engaged in wrongful conduct even if, however unlikely, she already was not aware of that fact.” The court noted that there “also was testimony by the mechanic who subsequently repaired the mag lock that its wires were made to be ‘double strong’ and would not become dislodged simply through accidental contact. Accordingly, the jury reasonably could have found that defendant was put on notice that her conduct was wrongful but, yet, she still decided to destroy the property at issue. In other words, the testimony permits a reasonable inference that defendant knew that severing the mag lock wires was wrong and that she did so intentionally.” Thus, the evidence “was sufficient to establish the ‘wilfully and maliciously’ element beyond a reasonable doubt.”
Habeas corpus; 28 USC § 2254; Motion for a certificate of appealability (COA); § 2253(c); Procedurally defaulted plea-breach claim; Whether the default was excused by appellate counsel’s alleged ineffectiveness for failing to raise the issue on direct appeal
[This appeal was from the ED-MI.] In an order, the court denied petitioner-Dennis a COA, holding that the procedural default of his plea-breach claim was not excused by ineffective assistance of appellate counsel for failing to raise it on direct appeal. Because his plea-breach claim lacked arguable merit, he could not show that he would have prevailed even if appellate counsel had raised the issue. Dennis was charged with four counts of CSC I involving a minor under 13. On the day of trial, the prosecution informed the trial court that it was offering Dennis a plea deal where “in exchange for a plea of guilty or no contest to the four counts, each carrying a mandatory minimum sentence of 25 years” (with a life maximum), the government would “‘not ask for more than 25 years on the minimum.’” It also agreed not to bring charges regarding another victim. The trial court explained to Dennis that it could impose a higher sentence if it chose. He pled no contest, and the trial court sentenced him to 30 to 50 years on each count, with counts one and three to be served consecutively to each other and concurrently with counts two and four. He argued that it should have allowed him to withdraw his plea when it decided to vary from the plea agreement. The trial court noted that it had informed him that it was under no obligation to conform to the prosecution’s sentencing recommendation. After his state court appeals were unsuccessful, he filed a habeas petition in the district court, arguing that the prosecution had breached the plea agreement by “‘covertly advocating for consecutive sentences.” The district court ruled that his claim was procedurally defaulted and that the default was not excused by appellate counsel’s failure to raise the claim on direct appeal. It then declined to issue a COA. He now moved the court for a COA. The court explained that to obtain a COA under § 2253(c), “a petitioner must make ‘a substantial showing of the denial of a constitutional right.’” Dennis conceded that his plea-breach claim was procedurally defaulted and sought to excuse this default by arguing ineffective assistance of appellate counsel. But the court concluded that reasonable “jurists could not disagree with the district court’s conclusion that appellate counsel’s failure to raise the plea-breach claim did not amount to deficient performance. The record does not establish that the prosecutor ‘covertly advocated’ for consecutive sentencing.”
Asylum & withholding of removal under the Immigration & Nationality Act (INA); 8 USC §§ 1101(a)(42)(A) & 1158(b)(1)(B)(i); § 1231(b)(3)(A); “Nexus” between risk of persecution & membership in a protected group; A “particular social group”; “Victims of government-sanctioned extortion” & “victims of threats, extortion, & kidnapping by loan sharks”; The Convention Against Torture (CAT); 8 CFR § 1208.16(c)(2); Government “acquiescence”; Board of Immigration Appeals (BIA); Immigration judge (IJ)
The court held that petitioners (the Patels) failed to establish the required nexus between their membership in their claimed particular social groups “and their risk of future persecution.” The court also found “several problems with” their CAT claims. Thus, it denied their petition for review of the BIA’s decision dismissing their appeal from the IJ’s ruling denying them relief from removal. They fled India after being threatened with kidnapping and death by local loan sharks. They entered the U.S. illegally and were scheduled for removal. They then sought asylum and withholding of removal under the INA as well as protection under the CAT. The court first noted that for both asylum and withholding of removal, there must be “a ‘nexus’ between a noncitizen’s risk of persecution in the country of removal and their membership in a protected group, including a ‘particular social group.’” While other circuits treat the nexus requirements for these forms of relief as being identical, the Sixth Circuit considers the “withholding[] nexus requirement to be less stringent than the asylum standard, requiring that the withholding applicant show merely that the protected status is ‘at least one reason’ for the feared prosecution.” But the court noted that this difference “matters little when substantial evidence supports the Board’s finding of ‘no nexus at all between’ the risk of future persecution and a claimant’s membership in a protected class.” The Patels’ claims were all based on the assertion “that they would face future persecution in India because of their membership in two particular social groups: ‘victims of government-sanctioned extortion’ and ‘victims of threats, extortion, and kidnapping by loan sharks.’” The court held that even assuming these were “cognizable particular social groups[,]” it would be difficult to find a connection between the Patels’ membership in them and the threat of future persecution. “Nothing suggests that a reason the loan sharks threatened the Patels was because the family were loan-shark victims. Instead, the record uniformly shows that they did so to get the money they felt [one of the petitioners] owed them.” As for relief under the CAT, “failure to inform authorities of threats by potential torturers typically dooms a CAT claim, as such evidence signals ‘that the government did not turn a willfully blind eye to the applicant.’” Although this “can be overcome with ‘additional evidence’” the court found that “the Patels’ additional evidence falls short many times over.”
MCL 500.3157(7); Application of the preamended version of the fee schedule; Demske v Fick; Progressive Marathon Ins Co v Pena
Finding no errors warranting reversal, the court affirmed the trial court’s order granting defendants-insurance companies summary disposition under MCR 2.116(C)(8) and (10). Plaintiff sought “reimbursement from defendants for the medical services plaintiff provided to” defendants’ insured (nonparty-M). Plaintiff argued “the trial court erred when it concluded that the fee schedule set forth in MCL 500.3157(7) applied to [M’s] insurance policy because, according to plaintiff, the preamended version of the statute applied to her accident.” The court found that its decision in Demske was dispositive. It noted that the policy here was issued on 2/6/20, and the motor vehicle collision occurred on 2/18/20. M’s “rights to claim benefits under the no-fault act, therefore, vested at the time of her motor vehicle collision on [2/18/20]. Because her injuries occurred after the amended no-fault act took effect, and because her insurance policy explicitly provided the policy was governed under the amended version of the no-fault act, the amended statute applied.” And the court held that “because the amended version applies, the fee schedules contained in MCL 500.3157 also apply.” Plaintiff’s reliance on Pena was misplaced. There, the court “held that preamendment liability limits applied to the plaintiff’s accident because, under the applicable statutory language, the new limits only applied to policies ‘issued or renewed’” after 7/1/20. It found that no “such limiting language appears in MCL 500.3157 and, accordingly, Pena is inapplicable.”
Trespass; Wiggins v City of Burton; Natural flow of surface water from a dominant estate; “Encourage or contribute to” a trespass; Helsel v Morcom; Judgment notwithstanding the verdict (JNOV); Witness credibility; Effect of failing to move for a directed verdict; MCR 2.610; The law of the case doctrine; Rott v Rott; Grant of directed verdicts; Statute of limitations; MCL 600.5808(2); Accrual; MCL 600.5827; Morse v Colitti
The court held that the trial court did not err in denying plaintiffs’ motion for JNOV “or abuse its discretion in denying a new trial” on their trespass claims because the conflicting trial evidence permitted reasonable minds to differ on factual issues. It also did not err in granting “defendants’ motions for directed verdict on plaintiffs’ claims against” defendant-Estate of Hannelore West and their claim as to water runoff from defendants’ garage. Plaintiffs purchased property in 2016 adjacent to property owned by the now deceased Hannelore and Robert West (their estates were the defendants). The case arose after the Wests hired a company to cut down greenery on their property. Plaintiffs alleged that in that process, “trees and bushes were also removed on their property. [They] argued that the cutting of the greenery increased the surface-water runoff running from defendants’ property, causing damage” to two cottages on plaintiffs’ parcel. They asserted “that the evidence established an invasion on their property sufficient to establish that a trespass occurred, notwithstanding the jury verdict that there was ‘no invasion.’” The court rejected defendants’ arguments that (1) plaintiffs’ failure to move for a directed verdict precluded them from receiving a JNOV and (2) the law of the case doctrine barred their motion for JNOV. As to the merits, it concluded that given “the conflicting testimony about whether greenery was cleared from plaintiffs’ property, and whether the clearing caused an increase of runoff water onto [their] property, the trial court did not err in denying” their motion for JNOV. It also did not abuse its discretion in denying them “a new trial because the record does not reveal that the evidence preponderated so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.” The court found there was competent record evidence “suggesting there was no clearing of greenery on plaintiffs’ property and no signs of erosion, and it was within the province of the jury to give credibility and weight to that testimony.” As to the directed verdict for Hannelore’s estate, it was clear that she “did nothing to encourage or contribute to any alleged trespass.” Thus, her estate “was entitled to judgment as a matter of law.” As to the directed verdict on plaintiffs’ trespass claim relating to defendants’ garage, this claim “was time-barred by the three-year statute of limitations in MCL 600.5805(2)[.]” Affirmed.
Retirement payments under the Social Security Act; The “misinformation provision” (42 USC § 402(j)(5)); Claim that the early retiring plaintiff was entitled to the higher monthly benefit to which she would have been entitled had she retired at full retirement age; Distinguishing Costello v Astrue (7th Cir); Social Security Administration (SSA); Administrative law judge (ALJ)
[This appeal was from the ED-MI.] The court held that plaintiff-Linden, who retired at 62, was not entitled to rely on the Social Security Act’s “misinformation provision,” § 402(j)(5), to have her payments increased to the amount she would have received if she had reached her full retirement age, 66. Linden asserted that she “thought that if she applied at 62, her birth date and her husband’s independent decision to defer his own Social Security would exempt her from the general rule that an early application yields smaller checks.” She claimed that an SSA representative told her that she would not receive smaller checks if she retired early. She argued that the alleged misrepresentation entitled her to have the SSA increase her payments to the amount she would have received if she had filed at her full retirement age. It declined to do so, and the ALJ affirmed. At issue was § 402(j)(5), which provides that an individual may “recover benefits if they ‘fail’ to apply based on misinformation from an agency.” Since Linden had applied, the ALJ concluded that the statute did not cover her claim. A magistrate judge agreed. The court affirmed, holding that § 402(j)(5) “applies when a beneficiary received incorrect information that caused them not to file an application. Linden did file an application at the time she received the alleged misinformation.” The court rejected her argument that “‘the misinformation caused her to “fail[]” to timely apply for benefits at age 66.’” Among other things, it noted that she “did timely apply for benefits when she turned 62” and that her interpretation added “the word ‘timely’ into a statute that only discusses whether one ‘failed to file’ at all.” It further found that the one case on which she relied, Costello, was distinguishable factually and legally. The Program Operations Manual System also did not help her. Its use of “the word ‘timely’ simply suggests that the application is submitted by a deadline. That’s precisely what Linden did. What’s more, even if the Manual did help Linden, it wouldn’t be able to override the plain text of a statute or regulation.”
Admission of evidence; Waiver; In re MJC; Relevance; MRE 401; MCR 3.977(H)(2); In re Ferranti; Prejudice; Ineffective assistance of counsel in termination proceedings; In re Lovitt (Amended Opinion); Effect of a failure to raise an issue in the statement of questions presented; MCR 7.212(C)(5); Seifeddine v Jaber
The court held that the trial court did not err by terminating respondent-father’s parental rights to the two children. His rights were terminated on the basis of his sexual abuse of one of the children, MY, beginning when she was 9 or 10 years old, and culminating in her pregnancy when she was 13. He ultimately pled nolo contendere to CSC I and III and was sentenced to 18 to 30 years and 10 to 15 years respectively. On appeal, the court rejected his challenges to the admission of a photograph of fetal remains, the certified judgment of conviction for his CSC offenses, and the testimony regarding his brother’s CSC conviction, noting he “did not merely fail to object; he expressly acquiesced to the admission of both the photograph and the certified judgment of conviction.” When the DHHS “moved to admit the photograph and the certified judgment of conviction, respondent’s counsel stated that he had no objection. The affirmative acceptance of the evidence constitutes waiver, extinguishing any claim of error.” Further, because “there is no indication that the trial court considered respondent’s brother or his brother’s CSC conviction or that this consideration would have affected the outcome, respondent cannot establish that the admission of that testimony affected his substantial rights.” The court also rejected his argument that his trial counsel was ineffective for failing to object to the admission of the evidence at issue, noting that because he “did not raise this issue in the statement of questions presented, it is waived.” In any event, he “cannot demonstrate prejudice regarding counsel’s failure to object to the photograph and certified judgment of conviction because the jury had ample other evidence supporting a statutory ground to exercise jurisdiction, including MY’s testimony that respondent sexually abused her for years and DNA evidence regarding the fetal remains.” He also “cannot establish prejudice regarding counsel’s failure to object to the testimony concerning his brother because the trial court relied on extensive evidence that termination was in the children’s best interest without relying upon or even referencing respondent’s brother.” Affirmed.