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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Power supply costs & revenues reconciliation; “Net increased costs”; MCL 460.6j(13)(c); “Solely”; Replacement capacity costs; Whether the case should be remanded; Petition for rehearing; Association of Businesses Advocating Tariff Equity (ABATE); Michigan Public Service Commission (PSC); Zonal Deliverability Charges (ZDCs); Zonal Deliverability Benefit (ZDB)
Holding that appellant-ABATE’s arguments were unavailing, the court affirmed appellee-PSC’s order approving with modifications petitioner-DTE’s application for approval to reconcile its power supply costs and revenues for calendar year 2020. ABATE argued “that the PSC erred in its interpretation and application of MCL 460.6j(13)(c), which provides for a disallowance of ‘net increased costs attributable to a generating plant outage of more than 90 days in duration unless the utility demonstrates by clear and satisfactory evidence that the outage, or any part of the outage, was not caused or prolonged by the utility’s negligence or by unreasonable or imprudent management.’” ABATE argued “the PSC erroneously limited the term ‘net increased costs’ as used in MCL 460.6j(13)(c) to net increased costs that are solely attributable to an extended outage.” ABATE asserted “that the PSC improperly read the word ‘solely’ into the statutory text so that only costs solely attributable to an extended outage are considered.” Contrary to ABATE’s claim, “the PSC did not insert the word ‘solely’ into the statutory text.” It was “true that the PSC used the word ‘sole’ in the context of quoting the PSC’s [8/11/22] order in Consumers Energy’s reconciliation case.” But the court concluded “the PSC was not purporting to interpret MCL 460.6j(13)(c) to include the word ‘sole’ or ‘solely.’ Rather, the PSC’s overall analysis reflects that it properly applied the statutory text. The PSC thoroughly analyzed the relevant testimony, the parties’ arguments, and the ALJ’s findings. The PSC found ABATE’s ‘argument that DTE Electric incurred additional capacity costs as a direct result of the Ludington Unit 3 outage extension unpersuasive.’” ABATE next argued “that the PSC disregarded or did not adequately consider evidence that DTE incurred replacement capacity costs and ZDCs that should have been disallowed because such costs were attributable to the Ludington Unit 3 outage extension.” ABATE further asserted “that the calculation of net increased costs should have accounted for ZDB credits that DTE allegedly earned as a result of the outage extension.” ABATE’s argument was unconvincing. The record contained “competent, material, and substantial evidence that supports the PSC’s decision.”
Nonprofit corporation dissolution; The Nonprofit Corporation Act (NCA); Addressing outstanding liabilities; MCL 450.2833 & 450.2855; Flint Cold Storage v Department of Treasury; Notice of dissolution to creditors; MCL 450.2841a & 450.2842a; Waiver of an argument; Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, LLC; Business Corporation Act (BCA)
The court held that defendant (referred to as DCL) “properly addressed its outstanding liabilities as part of its dissolution” approximately 15 months before plaintiffs-law professors filed this suit. The court concluded the trial court correctly determined that their suit was barred. Further, “DCL was not obligated to provide notice of the dissolution” given the permissive language of the statutes on which plaintiffs relied. Lastly, they waived their alleged fraudulent transfer argument by not raising it below. Thus, the court affirmed summary disposition for DCL. Plaintiffs asserted that MCL 450.2833 and 450.2855 “required DCL to address any outstanding liabilities—including its contractual agreements with plaintiffs—as part of its dissolution, but it failed to do so.” The court agreed these “statutory provisions imposed that obligation on DCL” but it determined that DCL did not fail “to comply with those obligations.” Reading the two statutes together, as it must, the court found that “a dissolved Michigan nonprofit corporation may continue its existence past its date of dissolution only until it has concluded ‘winding up its affairs . . . .’” The court reached this same conclusion in Flint Cold Storage, a case involving BCA provisions containing “identical language to that” in the NCA. The court held that the trial “court did not err by finding that DCL ‘was properly dissolved and simultaneously wound up’ as of [10/7/20]. DCL filed the certificate of dissolution on” that date, so that was the day on which it dissolved. This was “also the day on which DCL wound up its affairs.” The court found that plaintiffs’ 4/13 “agreements and any claims they may have had against DCL come within the contractual language of” the asset purchase agreement with Michigan State and thus, “DCL provided for this potential liability before dissolving and winding up.” The court noted that “nothing in the relevant statutory provisions provides that the windup period must occur after dissolution.” Given that “DCL ceased to exist once it dissolved and wound up, and could” no longer sue or be sued, plaintiffs’ suit was barred. As to their notice argument, the statutes on which they relied, MCL 450.2841a and 450.2842a, use the word “‘may,’ a permissive, not mandatory, term.”
Application to set aside a conviction; MCL 780.621(14); Balancing the circumstances & behavior of a petitioner against the public welfare; People v Boulding; “Public” & “public welfare”
The court held that the Court of Appeals erred by finding the statements of two individuals comprised the “public welfare,” and abused its discretion by denying defendant’s application to set aside his conviction. Thus, it reversed both the judgment of the Court of Appeals and the trial court’s decision to deny his application to set aside his conviction, and remanded to the trial court for entry of an order in accordance with MCL 780.621. He was charged with CSC II, indecent exposure, and third-degree child abuse for “groping his two stepdaughters’ breasts and masturbating in their presence when they were between 13 and 16 years old.” He pled no contest to one count of third-degree child abuse in exchange for the dismissal of the original charges. The trial court sentenced him to 9 months in jail and 2 years of probation and required that he register as a sex offender. After completing probation, he applied to have his conviction set aside. The two victims submitted written statements objecting to his application, and the trial court denied it. He filed a second application to set aside his conviction, concurrently petitioning to discontinue sex offender registration. The trial court granted his motion to discontinue sex offender registration, but denied his application to set aside his conviction. He later filed a third application, which was also denied. The Court of Appeals affirmed, finding the trial court properly exercised its discretion in determining that setting aside his “conviction was not consistent with the public welfare given the ongoing negative impact of defendant’s actions on his victims.” On appeal, the court held that the trial court abused its discretion when it concluded that granting defendant’s application to set aside his conviction would not be consistent with the public welfare. The trial court reached this decision on the basis that “the two victims remained affected by defendant’s actions. Although the two victims were understandably unsupportive of defendant’s request to set aside his conviction, we reiterate that the public welfare must consist of more than the subjective opinions of the two victims. Without more, we conclude that their objections are insufficient to support the trial court’s conclusion that granting defendant’s application to set aside his conviction was not consistent with the public welfare.” Public welfare “cannot be determined by looking solely to the impact of setting aside a conviction on individuals or a limited class of people.” In addition, “no record evidence supported a finding that either the ‘circumstances and behavior’ of defendant or the ‘public welfare’ weighed in favor of denying defendant’s application.”Concurring part and dissenting in part, Justice Zahra agreed with the majority that the trial court abused its discretion by denying defendant’s application. But he disagreed with the majority’s understanding of public welfare. “Whether two individuals compose the public welfare is not relevant. What is relevant is whether the substance of the statements made by the two individuals and relied upon by the trial court provides a sufficient basis to conclude that expungement is not consistent with public welfare.”Dissenting, Justice Viviano disagreed with the majority that the trial court abused its discretion by denying defendant’s application. He also disagreed with the majority that defendant was entitled to an expungement as a matter of law. “After interpreting the broad concept of the ‘public welfare’ as excluding the victims, the majority ignores the textual indications in the statute that the Legislature intended that victims be given an opportunity to provide input in the process.”
Motion to suppress the statements made to police; Custody; “Cumulative effect” of the alleged violations; Sufficiency of the evidence; First-degree premeditated murder; Aiding & abetting; Prosecutorial misconduct; Fair trial; Ineffective assistance of counsel; Failure to object to the misconduct
Finding no errors warranting relief, the court affirmed defendant’s convictions of first-degree murder for aiding and abetting in the shooting deaths of the victims. He argued, among other things, that the trial court erred when it admitted at trial two statements he made to police officers. He maintained “that he did not validly waive his earlier invocation of his right to have a lawyer present” and thus, his subsequent statements were inadmissible. The prosecutor sought to admit his comment about turning himself in. The trial court found he “chose to go the police station to inquire about his personal belongings, therefore, he was not in custody and Miranda warnings were not required.” Further, the trial court concluded that the interrogating officer, C, “did not question defendant nor make any statements that were the functional equivalent of questioning. The trial court found this statement to be admissible at trial.” He asserted the trial court erred in admitting the statement because he “had earlier asserted his right to a lawyer.” However, it was evident that he was not in custody during the 2/26/21 encounter, as the trial court found. The trial court did not err in holding he “was not in custody for purposes of Miranda during this encounter on” 2/26/21. The totality of the circumstances indicated he “was not in a custodial environment or otherwise not free to leave.” The court held that he was not in custody or otherwise deprived of his freedom of action in any significant way to require Miranda warnings to be administered. “The trial court found that the totality of the circumstances surrounding the [3/9/21] encounter at the tether agent’s office indicated that defendant was in a custodial environment.” The court concluded he “was required to be there as a condition of his bond, the tether agent was a government official in her office, the door was shut, and it was not clear if defendant was free to leave.” Thus, the trial court found his “statements should be suppressed because he was not informed of his Miranda rights and was interrogated regarding the murders.” The last encounter with police occurred on 3/29/21. The trial court did not err in denying his motion to suppress. The court found that C’s “recitation of defendant’s rights was consistent with the requirements of Miranda.” The court held that “defendant knew that he could stop the interrogation by asserting his right to a lawyer because the officers ended two prior interrogations as a result of his invocation of the right, and they told him that was the reason they were required to end those interrogations.”
Public-policy cause of action for retaliatory discharge; Effect of antiretaliation provisions & remedies in the Whistleblowers’ Protection Act (WPA), the Occupational Safety & Health Act (OSHA), & the Michigan Occupational Safety & Health Act (MiOSHA); Suchodolski v Michigan Consol Gas Co; Dudewicz v Norris Schmid, Inc; Pompey v General Motors Corp; Lash v Traverse City; White v Chrysler Corp; Grand Traverse Cnty v Michigan; Adequacy of remedies
Concluding the remedies under OSHA and MiOSHA are cumulative, the court held that plaintiff’s public-policy retaliatory discharge cause of action was not preempted. Thus, it reversed the Court of Appeals judgment, which had affirmed the trial court’s grant of summary disposition to defendants on the basis plaintiff’s claims were precluded by the WPA, OSHA, and MiOSHA, and remanded to the trial court. Plaintiff had worked at a plant owned by one of the defendants through a staffing agency, the other defendant. In “examining whether a public-policy claim based on alleged retaliatory action by the employer may be asserted, the threshold inquiry is whether the public-policy claim is based on a statute that has an antiretaliation provision. If so, the court must then ask whether the remedies of the underlying statute are exclusive. If deemed exclusive, the public-policy claim is preempted. But if” they are cumulative, the claim may proceed. Plaintiff asserted “the remedies provided under OSHA and MiOSHA are not exclusive because they are plainly inadequate.” The court held “that the ‘plainly inadequate’ qualifier is consistent with Michigan jurisprudence and that courts must therefore conduct an inquiry into the adequacy of the remedy when addressing whether statutory remedies are exclusive or cumulative. Furthermore, we disavow Lash to the extent that it disavows Pompey’s adequacy analysis as dictum.” Noting that the MiOSHA and OSHA antiretaliation provisions contain almost identical language, the court agreed “with plaintiff that the adequacy of available statutory remedies is a relevant consideration. We are not alone in having to resolve this issue, as other jurisdictions have also considered the adequacy of OSHA’s remedies.” Agreeing with the reasoning in those cases, the court concluded “the remedies provided in OSHA and MiOSHA are plainly inadequate to provide an employee with sufficient redress. The 30-day limitation, the unfettered discretion granted to the department, and the employee’s lack of control over what occurs after a complaint has been filed collectively provide sufficient reason to conclude that the remedies in OSHA and MiOSHA are plainly inadequate. Therefore, the remedies provided are merely cumulative and not exclusive and, accordingly, parties, like plaintiff, challenging their discharge as a matter of public policy are not restricted from doing so under Dudewicz.”Dissenting, Justice Zahra (joined by Chief Justice Clement and Justice Viviano) “would affirm the Court of Appeals for two reasons.” He first found that “plaintiff’s public-policy claim is preempted by federal and state law. Plaintiff may not bring a public-policy claim for retaliatory termination when the underlying, applicable federal and state laws contain antiretaliation provisions.” In addition, plaintiff “utterly failed to establish that he falls within one of the narrow exceptions to Suchodolski.” Thus, he concluded “plaintiff was properly terminated from employment as an at-will employee.”
Injuries on a city bus; Governmental immunity; MCL 691.1407(1); Mack v Detroit; The motor-vehicle exception; MCL 691.1405; Vicarious liability; Respondeat superior; Laster v Henry Ford Health Sys; Leave to amend; Negligence; Distinguishing Moncrief v Detroit; Principle that an intentional tort is not itself an exception to governmental immunity; Genesee Cnty Drain Comm’r v Genesee Cnty; Proper party; MCR 2.201(C)(5); MCL 600.2051(4); Davis v Chrysler Corp; Detroit Department of Transportation (DDOT)
The court held that plaintiff sufficiently pleaded her respondeat superior claim in avoidance of governmental immunity. She sued defendants for injuries she sustained while riding on a city bus. The trial court dismissed her negligence claim against defendant-bus driver and found defendants-city and DDOT were entitled to immunity as to plaintiff’s owner’s-liability claim. However, it denied summary disposition for the city and DDOT as to her respondeat superior claim. On appeal, the court found plaintiff “sufficiently pleaded a claim for respondeat superior in avoidance of governmental immunity and established a genuine issue of material fact regarding the city’s liability under a theory of respondeat superior.” The fact that the complaint “contained additional allegations of negligent entrustment that are not within the scope of the motor-vehicle exception does not change the fact that the complaint otherwise stated a valid claim under the motor-vehicle exception in avoidance of governmental immunity.” And to the extent the complaint was “deficient for failing to cite MCL 691.1405, the trial court should permit [plaintiff] to cure this through amendment.” The court also rejected defendants’ contention that “even if plaintiff properly pleaded a claim under the motor-vehicle exception, they are entitled to summary disposition” because there was no genuine issue of material fact as to her ability to establish this claim. It noted her testimony supported an inference that the bus driver “was distracted while driving by talking on the phone and arguing with a passenger, and that she forcefully applied the brakes under circumstances where there was no apparent need for an immediate stop.” The court further rejected defendants’ argument that the trial court erred by failing to grant their summary disposition motion because plaintiff alleged an intentional tort, namely, an assault and battery, which is not an exception to governmental immunity. Although the bus driver’s “conduct toward the man that said ‘just drive’ may have been an intentional battery, the effect of the same conduct on plaintiff sounds in negligence.” Finally, however, it agreed that DDOT should have been dismissed because it was not a proper party to the case. Affirmed in part, reversed in part, and remanded.
Best interests of the children; In re Olive/Metts Minors; Relative placement; MCL 712A.19a(8)(a); “Relative”; 712A.13a(1)(j)(i); Guardianship; In re TK
Holding that termination was in the children’s best interests, the court affirmed termination of respondent-mother’s parental rights. Her rights were terminated on the basis of physical and sexual abuse, domestic violence, substance abuse, neglect, and improper supervision. On appeal, she argued that because the children are in “relative placement” the trial court was required to consider that factor in determining whether termination of her parental rights was in their best interests. The court noted that the trial court “did consider the children’s placement with their fictive kin grandmother.” The court also rejected her claim that the trial court’s best-interest decision was flawed because it failed to consider whether the children should have been placed in a guardianship with their fictive kin grandmother to afford her additional time to complete services and work toward reunification. “Contrary to respondent’s assertions, the trial court considered whether a guardianship would be appropriate and concluded that it would not be.” It noted that the trial court “rejected the possibility of continuing the guardianship because it found more compelling the children’s needs for stability, permanency, and finality . . .” and properly determined that “continuing the guardianship in lieu of terminating respondent’s parental rights to [the children] was not a viable option.” Finally, the court rejected her contention that termination was not in the children’s best interests because she is bonded with them, she completed her parenting class, and she overcame her drug addiction, noting she “had ample time to make changes and take advantage of a variety of services that were available, but failed to do so until the eleventh hour. Because of [the children’s] need for permanency, stability, and finality, they cannot wait in limbo for positive changes to potentially manifest.”