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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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 the Michigan Public Service Commission (MPSC) was empowered by the Legislature under 2016 PA 341 (Act 341) to impose a local clearing requirement upon individual alternative electric suppliers; Ripeness; Van Buren Charter Twp. v. Visteon Corp.; Huntington Woods v. Detroit; Citizens Protecting MI’s Constitution v. Secretary of State; People v. Bosca; People v. Robar; Review of MPSC orders; Attorney Gen. v. Public Serv. Comm’n; Const. 1963, art. 6, § 28; Consumers Power Co. v. Public Serv. Comm’n; Principle that an agency’s powers cannot be extended by inference; Herrick Dist. Library v. Library of MI; Huron Portland Cement Co. v. Public Serv. Comm’n; MCL 460.6w(3), (6), & (8); The Midcontinent Independent System Operator (MISO); Legislative history; Russel v. Detroit; In re Certified Question from U.S. Court of Appeals for Sixth Circuit; Ambiguity; Village of Holly v. Holly Twp.; Statutory interpretation; Bush v. Shabahang; Administrative Procedures Act (MCL 24.201 et seq.); Faircloth v. Family Independence Agency; “Rule”; MCL 24.207; AFSCME v. Department of Mental Health; In re PSC Guidelines for Transactions Between Affiliates
Holding that MCL 460.6w did not authorize appellee-MPSC to impose a local clearing requirement on individual alternative electric suppliers, the court reversed the MPSC’s challenged final order and remanded. Appellants contended that the MPSC erred by determining that it was empowered by the Legislature under Act 341 to impose the requirement. The MPSC and appellee-Consumers urged the court to read the provisions of MCL 460.6w as granting the MPSC authority to impose it. They reasoned that because section 6w(8)(b) refers to the capacity obligations as “to each individual electric provider, it must be inferred that the local clearing requirement was meant to be applied to each alternative electric supplier individually.” The court could not agree because a review of the statute revealed that “no provision of MCL 460.6w clearly and unmistakably authorizes the MPSC to impose a local clearing requirement upon individual alternative electric providers.” It acknowledged that “section 6w(8)(b) provides that each electric provider must demonstrate that it owns or has contractual rights to sufficient capacity to meet its capacity obligations as set by the appropriate independent system operator, or the MPSC, as applicable. Section 6w(8)(c) directs that ‘[i]n order to determine the capacity obligations,’ the MPSC must ‘set any required local clearing requirement and planning reserve margin requirement, consistent with federal reliability requirements,’ and seek technical assistance from MISO in doing so. But although section 6w(8)(c) thus requires the MPSC to determine the local clearing requirement in order to determine capacity obligations, it does not specifically authorize the MPSC to impose the local clearing requirement upon alternative electric suppliers individually.” As the MPSC only has the “authority granted to it by the Legislature by ‘clear and unmistakable language,’” and authority “cannot be extended by inference,” the court declined “to infer such additional authority upon the MPSC” here. Further, a review of the statute suggested that the MPSC was obligated to “apply the local clearing requirement in a manner consistent with MISO.” The court noted that “section 6w(6) constrains the MPSC from assessing any capacity charge in a manner that ‘conflicts with a federal resource adequacy tariff, when applicable,’ and section 6w(8)(c) requires that the MPSC set any planning reserve margin or local clearing requirements ‘consistent with federal reliability requirements.’”
Delegation defense; People v. Ham-Ying; Distinguishing Department of Consumer & Indus. Servs. v. Hoffman; The Public Health Code (MCL 333.1101 et seq.); Charges of unauthorized practice of a health profession; MCL 333.16294; “Practice of veterinary medicine” defined; MCL 333.18805(2); Exceptions to the statute criminalizing unlicensed practice; MCL 333.16215(1) & (7); MI Admin. Code, R 338.4911; Prohibition on veterinary technicians performing as a surgeon; MCL 333.18811(3); Statutory interpretation; People v. Stone Transp., Inc.
In an interlocutory appeal, the court held as a matter of law that defendant could not present a delegation defense to unauthorized practice of a health profession charges because a licensed veterinarian could not delegate the task of veterinary surgery to him where defendant’s veterinary license had been revoked. Thus, it reversed the trial court’s order denying the prosecution’s motion in limine to prohibit him from offering a delegation defense, and remanded. While he argued that no specific statute or administrative rule precludes “the delegation of veterinary tasks (including surgery) to an individual whose license has been suspended,” he ignored MCL 333.16215(1), which “prohibits a licensee from delegating an act, task, or function that, ‘under standards of acceptable and prevailing practice, requires the level of education, skill, and judgment required of [a] licensee . . . .’” Unrebutted testimony at the motion hearing by a licensed veterinarian who sits on the State Veterinary Board and was qualified as a veterinary medicine expert “established that the ‘acceptable and prevailing practice’ for veterinary medicine does not allow for the delegation of surgery to an individual who is not licensed at the time.” Further, given that “defendant’s license was revoked for providing substandard care to animals upon which he performed spay and neuter procedures, a determination” had been made that he did “not meet the requirements of a licensee regarding ‘the level of education, skill, and judgment’ required, not only to practice veterinary medicine in general, but to perform the specific task that forms the basis of the charges against him.” The court’s conclusion was supported by the fact that veterinary technicians are expressly barred from performing as a surgeon. “If a licensed veterinary technician may not perform surgery under delegation, then it follows that an unlicensed person acting as a veterinary technician may not either.” The reasoning in Ham-Ying, which concerned the extent to which a licensed doctor may delegate the prescribing of controlled substances to a doctor whose license has been suspended, was also relevant and persuasive.
Other acts evidence of robberies in which a defendant had participated; People v. McGhee; People v. Babcock; MRE 404(b)(1); People v. Starr; People v. Mardlin; MRE 403; People v. Knox; People v. Watkins; People v. Mills; Limiting jury instruction; People v. Martzke; People v. Torres; Sufficiency of evidence to show participation in the armed robbery; People v. Ericksen; People v. Hardiman; Identity; People v. Yost; People v. Hampton; People v. Tennyson; Restitution; MCL 780.767(1) & (4); People v. Cross; People v. Orweller; People v. McKinley; Motion for a remand for a preliminary exam; People v. Taylor; People v. Skowronek; People v. Jones; People v. Hall; Harmless error; MCL 769.26; People v. Lukity; Whether 11 text messages were timely disclosed; Good cause to excuse the notice requirement; MRE 404(b)(2); People v. Jackson; Whether a defendant was denied a fair trial because the prosecutor did not disclose a voluminous amount of phone records until the fifth day of the trial; People v. Rose; People v. Banks; People v. Davie (After Remand); Sentencing; Scoring of OVs 12 & 13; People v. Rosa; People v. Light; People v. Goodman; People v. Earl; People v. Wellman
The court held that other acts evidence was properly admitted, and that there was sufficient evidence to support defendant-Jones’s armed robbery conviction. Further, any error related defendant-Prince’s motion for remand for a preliminary exam was harmless, the trial court did not abuse its discretion in admitting certain text messages, and there was no showing of actual prejudice as to the phone records at issue. The court also found no error in the scoring of OVs 12 and 13. Thus, it affirmed defendants’ convictions and sentences. However, the trial court inaccurately recalled the amount that was taken from the victim (F), and based its restitution order on that incorrect recollection. Thus, the court remanded to correct the order of restitution to accurately reflect the $400 amount. In this consolidated appeal, both defendants were convicted of armed robbery and conspiracy to commit armed robbery. Prince was also convicted of felony-firearm. Jones argued that the trial court erred in admitting other acts of robberies in which she had participated. She contended that the “evidence against her was so weak that the jury could have been influenced to convict her on the basis of her acknowledged participation in the other robberies or to conclude that she had a propensity to commit” crimes. “The acts were frequent and close in time and place to the charged crime, which was committed in a similar way.” Notably, she confirmed to an officer (D) that she committed the other acts. Jones told D that “she and Prince, her boyfriend, ‘were doing Backpage Craigslist robbery [sic]’ and explained that ‘the robberies’ involved the same methodology [F] described, down to the location and specific video game system purportedly offered for sale. There was evidence that a woman assisted Prince, and given Jones’s testimony about the nature of their relationship and the extent and consistency of their robbery operation, it would be reasonable to infer that the robbery of [F] was part of the same operation.” Thus, the evidence was probative, and the court concluded that its use was not unfairly prejudicial under the circumstances. Further, the trial court gave the jury a limiting instruction as to consideration of this evidence. As to Prince’s claims, among other things, the court held that the trial court did not abuse its discretion in ruling that the texts could be admitted despite the lack of earlier notice because the good cause requirement was met.
Ineffective assistance of counsel; People v. Trakhtenberg; People v. Lockett; Strategic decisions; People v. Vaughn; Model criminal jury instructions; MCR 2.512(D)(2); Self-defense; People v. Dupree (Dupree I & II); The Self-Defense Act; People v. Guajardo; People v. Hardiman; People v. Musser; M Crim JI 7.15 & 7.21; MCL 780.973; Remedy for the deprivation of the right to counsel; People v. Whitfield; People v. Gridiron; People v. Smith
Holding that defendant was denied the effective assistance of counsel, the court vacated his convictions and sentences and remanded for a new trial as to felony-firearm and felon in possession (FIP) only. He was convicted of those charges and acquitted of a second-degree murder charge. He argued that his trial attorneys were ineffective for, among other things, failing to ensure that the jury received proper instructions as to self-defense and defense of others as affirmative defenses to FIP. The court agreed. The prosecution argued that the evidence failed to show that his “resort to potentially lethal force satisfied the legal standard for necessity” or that he “took and maintained possession of a firearm only for the time necessary to respond to an imminent threat,” relying on the court’s note about relevant circumstances in Guajardo. The court observed that “the prosecution explicitly agreed to such instructions below, and it was the prosecution, not the defense, that prepared the proposed instructions that attempted to modify M Crim JI 7.15” and 7.21 to fit FIP. Also, it disagreed. Defendant claimed “in a written statement that he obtained the gun-safe code from his wife, and then obtained the handgun, only after an unidentified man dressed fully in black, with black gloves, showed up at [his] house unannounced after dark.” Evidence was introduced showing that victim-A “was armed with a knife and a revolver not registered in his name,” that A had indicated to others he intended to confront defendant, that A “had an inclination toward violence and ‘busting in’ to others’ premises,” and that A had reason to be upset with defendant because he had recently cut A “out of a planned heist. It was the jury’s prerogative to credit or reject the evidence of how or when defendant obtained the handgun, whether [he] had adequate reason to believe his possession of” the gun was necessary, and the witnesses’ credibility. The court did “not believe defendant’s possession of the gun for longer than the literal amount of time taken to perform the act of shooting it inherently precludes a self-defense instruction.” Thus, he was entitled to a proper jury instruction as to self-defense and defense of others as to his FIP charge, and the instructions given did not sufficiently address this charge. On the record, it could “conceive of no valid strategic rationalization for counsel’s failure to object or to request different instructions.” Thus, it found that trial counsel’s performance fell below an objective standard of reasonableness.
Hearsay; Whether the testimony of three witnesses was admissible under MRE 803(3); People v. Moorer; Cumulative effect of the errors
On remand from the Michigan Supreme Court with instructions to consider whether the trial testimony of three witnesses was admissible under MRE 803(3), the court held that the trial court erred by admitting the evidence and again reversed defendant’s conviction of second-degree murder, and remanded. A jury found him guilty of second-degree murder for the shooting death of his brother, delivering marijuana, and felony-firearm. The victim’s friend (M) testified that he confided “that [defendant] had pulled out a gun on him in some type of argument in an angry way. He was just talking about being worried, being concerned not knowing what to do.” The second sentence was admissible under MRE 803(3). The victim’s statement that he was worried and concerned was clearly a statement as to then-existing emotion. But the first sentence concerned the victim’s recall of defendant’s action in threatening him with a gun. The prosecution essentially contended that the sentences were inextricably intertwined. However, assuming that was true, “under MRE 803(3), the jury still could not consider the statement for its substantive value and defendant would be entitled to an instruction to that effect. Because the trial court erroneously admitted the statement under other hearsay exceptions,” that instruction was not given. Moreover, “the prejudice inherent in this statement required the trial court to admit only [M’s] testimony that the victim was worried and concerned and exclude the victim’s statement that defendant threatened him with a gun.” The same problem existed with the testimony of another friend that the victim said “[t]hat his brother had kind of told him a secret about having a gun and [the victim] was pretty shocked by that . . . and concerned.” Finally, because another of the victim’s friends (F) did not testify to the victim’s statement of his then-existing mental or emotional state, F’s testimony as to the victim’s fear did “not implicate MRE 803(3).” This left only “the victim’s statement that defendant had a gun, which is plainly hearsay and inadmissible under MRE 802.” The court also held that the errors were not harmless as their cumulative effect “was that the jury was presented with evidence that defendant had a gun and had previously threatened the victim with it.” The absence of limiting instructions posed “a serious risk that the jury would consider this evidence substantively, rather than limiting its consideration of the evidence” to its tendency to “show the victim’s fear of defendant.” These errors “tended to touch on defendant’s state of mind,” a dispositive issue at trial.
Freedom of Information Act (FOIA) (MCL 15.231 et seq.); “Public record”; MCL 15.232(e); “Public body”; MCL 15.232(d)(iii); Principle that public records are not insulated from FOIA by their location or the fact that a private entity created them originally for its own use; Amberg v. City of Dearborn; Use of agency principles to argue that documents the city attorney sent & received while negotiating for the defendant-city are public records; Breighner v. Michigan High Sch. Athletic Ass’n; Hoffman v. Bay City Sch. Dist.; MacKenzie v. Wales Twp.; Reliance on case law from foreign jurisdictions; In re Jajuga Estate; Nissen v. Pierce Cnty. (WA); Knightstown Banner LLC v. Town of Knightstown (IN App.); State ex rel Findlay Publ’g Co. v. Hancock Cnty. Bd. of Comm’rs (OH); Forum Publ’g Co. v. City of Fargo (ND); Creative Rests., Inc. v. Memphis (TN App.); Evidence of plaintiff’s motive & intended use of the requested records; Taylor v. Lansing Bd. of Water & Light; Rataj v. City of Romulus; Clerical-Technical Union of MI State Univ. v. Board of Trs. of MI State Univ.; Harmless error; MCR 2.613(A)
The court concluded that plaintiff’s argument that the documents the city attorney sent and received while negotiating for defendant-city were public records subject to disclosure under FOIA based on agency principles was not supported by the relevant statutes’ plain language, Michigan case law, or the foreign case law she cited. Further, while the trial court erred in denying her motion in limine to exclude evidence of her motive and intended use of the documents, the error was harmless. Thus, it affirmed summary disposition for the city. The court noted that the definition of “public body” in MCL 15.232(d)(iii) “does not include officers or employees acting on behalf of cities, townships, and villages. By contrast, MCL 15.232(d)(i),” which defines the term as to “the executive branch of state government, does include officers and employees acting on behalf of the public body. Had the Legislature so intended, it could have included officers or employees, or agents, in the definition of public body that pertains to cities, townships, and villages. That it did not indicates the Legislature’s intent to limit ‘public body’ in § 232(d)(iii) to the governing bodies of the entities listed.” The court concluded that Breighner supported this interpretation. Plaintiff contended that Breighner’s holding was irrelevant because she did not assert that the city attorney was a public body, but instead that “because an agent’s records are the principal’s records, the city attorney’s records are defendant’s records; thus, to the extent that the city attorney possesses them in the conduct of city business, defendant possesses them in the performance of an official function.” However, this argument did “not circumvent the requirement of § 232(e) that public records are those prepared, owned, used, possessed or retained in the performance of an official function by the ‘public body’ and Breighner’s indication that ‘public body’ does not include agents of the public body.” Case law also suggests that “for a record to become a public record subject to FOIA, the record has to be adopted by the public body itself in one of the ways stated in § 232(e), not simply used, possessed, or retained by someone acting on behalf of the public body.”
Duty to defend & indemnify; Radenbaugh v. Farm Bureau Gen. Ins. Co.; USF&G v. Citizens Ins. Co.; Application of the “Appleman test” to determine whether the accident resulted from the use of the escort vehicles; Century Mut. Ins. Co. v. League Gen. Ins. Co.; Wakefield Leasing Corp. v. Transamerica Ins. Co. of MI; Applicability of Vanguard Ins. Co. v. Clarke & Pacific Employers Ins. Co. v. Michigan Mut. Ins. Co.; Basic causal relation test; Thornton v. Allstate Ins. Co.; Kangas v. Aetna Cas. & Sur. Co.; Fundamental purpose of a motor vehicle to provide transportation; McKenzie v. Auto Club Ins. Ass’n
Holding that the Appleman test applied and that the allegations did not satisfy any of the test’s prongs, the court affirmed summary disposition for the insurers in these declaratory judgment actions consolidated on appeal. The cases arose from an accident in which a pickup truck collided with a semi-trailer. One of the passengers in the truck was fatally injured while the other suffered serious injuries. Appellants filed suit on their behalf. Counter-defendant-Fitzgerald was operating the lead “escort vehicle” for the semi-trailer while defendant-Zarych, an employee of defendant-MS Escort Truck Services, was operating the lead escort vehicle for a second semi that was to follow the other one. Appellee-Grange Insurance Company of Michigan insured MS Escort and appellee-Northland Casualty Company insured Fitzgerald. The court rejected appellants’ arguments that the trial court incorrectly applied the Appleman test to determine whether the accident resulted from the use of Fitzgerald’s and Zarych’s vehicles. Applying the test, it noted that the allegations as to Fitzgerald and Zarych “concerned their alleged failure to control, block, or warn drivers” of the semi-trailer and concrete beam blocking the road. These claims related to their alleged failure “to fulfill their professional duties as escort drivers for the semi-trailer” involved in the accident. However, a motor vehicle’s fundamental purpose “is providing transportation, not controlling traffic as an escort vehicle for a semi-trailer.” The allegations did not satisfy the first prong of the test because they did not show that “the accident arose out of the inherent transportation function of their vehicles ‘as such.’” As to the second prong, “the accident did not arise within the natural territorial limits of the vehicles driven by Fitzgerald and Zarych.” Finally, the vehicles they were driving “did not produce the injury; at best,” their alleged failure ‘to fulfill their professional duties as escort drivers could have contributed to causing the condition that led to the crash, which is insufficient to meet the third prong of the Appleman test.” Given that the injuries “did not result from the ownership, maintenance, or use of” their vehicles, the “underlying allegations did not arguably fall within the coverage of” the policies.
Claims for breach of fiduciary duty & misappropriation related to a trust; Whether the interested party’s summary disposition motion was properly before the trial court; Claims for breach of trust & for the levying of a surcharge; The Michigan Trust Code (MCL 700.7101 et seq.); MCL 700.7814(2) & (3); A trustee’s violation of a duty owed to a trust beneficiary; MCL 700.7901(1); Remedy options; MCL 700.7901(2)(c); MCL 700.7902; In re Baldwin Trust; Interpreting the meaning of a trust; In re Miller Osborne Perry Trust; Claims as to the appointment of a successor trustee; Whether the trust language provided that the children beneficiaries were not entitled to participate in the selection of a successor trustee at the time; Claims as to the failure to create sub-trusts; Claim for improper invasion of the trust principal; MCL 700.7801; MCL 700.7815(1)
The court held that interested party-Gail Veilleux was properly granted summary disposition of respondent-James Veilleux’s claims for breach of fiduciary duty and misappropriation. The trial court also did not err in dismissing his claims against Gail and petitioner-Polk (the successor trustee) for breach of trust and in not levying a surcharge against Polk. Further, based on the Trust’s plain language, “the children beneficiaries were not entitled to participate in the selection of a successor trustee after” a bank declined to serve. Finally, the trial court did not err in determining that “Polk’s failure to allocate the assets into sub-trusts did not cause a loss to the Trust or the children beneficiaries,” and there was no material question of fact as to whether he abused his discretion in distributing Trust principal to Gail. The court first found that Gail was entitled to summary disposition because there was no genuine issue of material fact as to whether she “misappropriated Trust assets, and because no damages arose from any failure by her as a trustee to provide annual accountings to” the children beneficiaries. As to James’ claims for breach of trust and seeking the levying of a surcharge, “Polk conceded that after his appointment as trustee in 1999 he did not send any communications or annual accountings to the beneficiaries who were not then eligible to receive income or distributions, other than to respond to” one request for information. Also, for “the six years preceding his filing the petition, there had been ‘no receipts, so there have been no accountings.’” James argued that due to the “trustees’ failure to provide an annual accounting and other Trust administration information to the children beneficiaries” in breach of their duties under MCL 700.7814(2) and (3), the trial court “erred in declining to surcharge them for their breaches. However,” the court noted that ordering “remedial action, including a surcharge, was permissive, not mandatory. Because Polk has since provided the information to James, and because there is no evidence to support a finding that an earlier failure to keep the children beneficiaries informed caused any harm to either the Trust or the children beneficiaries’ interests,” the trial court did not abuse its discretion. Affirmed.