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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Injunctive relief; Likelihood of success on the merits of a free speech claim; Whether defendant-school district’s gender identity policy conformed with the standards for regulating student speech established in Tinker v Des Moines Indep Cmty Sch Dist; “Compelled speech”; “Viewpoint discrimination”; Overbreadth challenge
In an order after a majority of the court voted for a rehearing en banc, the court vacated the original panel’s decision and judgment (see e-Journal 82035 in the 8/8/24 edition), stayed the mandate, and restored the case to the docket as a pending appeal. The original panel affirmed the district court’s denial of plaintiff-parent organization’s request to preliminarily enjoin defendant-school district’s gender-identity policies relating to pronoun use because it was unlikely to succeed on the merits of its free speech claim.
Ineffective assistance of counsel; Failure to request jury instructions on duress; People v Lemons; Operating while intoxicated (OWI); Driving while license was suspended, revoked, or denied (DWLS); Effect of expressly approving the jury instructions
The court held that (1) a duress jury instruction would have been proper, (2) defense “counsel’s representation fell below an objective standard of reasonableness” for failing to request it, and (3) it was at least reasonably probable “an acquittal could have resulted for one or more of the remaining” charges defendant-Espino faced. Thus, the court reversed his OWI causing death and DWLS causing death convictions and remanded for a new trial. After finding the issue of whether “the trial court plainly erred by failing to” give the duress instruction was waived, the court considered whether counsel was ineffective for failing to request it. Espino told police that after his girlfriend and one of her co-workers (J) had an altercation, he went to confront J. According to a member of J’s “family, Espino struck first, attacking the family member. Although four members of [J’s] family pursued Espino, there is no testimony as to their possessing any weapon and an observing neighbor believed one family member hanging on to Espino’s truck struck the truck with a sandal.” However, the court found “this record establishes a prima facie case of duress.” Testimony made it “clear that within minutes, Espino is out-numbered and out-matched. At least two of the four pursuing [J’s] family members were well over 200 pounds. According to Espino’s initial reports to police, he was jumped by four members of [J’s] family and some had weapons, including a metal pipe. That and a baseball bat were recovered at the accident scene. In short, the record establishes that [he] was experiencing threatening conduct that was sufficient to both objectively and subjectively create the fear of death or serious bodily harm.” There was also some testimony that he “got into the vehicle and ‘stepped on the gas to get away from everybody.’ In other words, there is prima facie evidence that [he] committed” unlawful acts (OWI, DWLS) “in order to escape a great harm—great bodily injury or death.” The court noted that whether the threat to his “person arose because of his fault or negligence is a question that should have been posed to the jury.” It concluded “a duress instruction would have been read and counsel’s failure to request one was objectively unreasonable.” Further, noting that Espino was acquitted of leaving the scene of an accident causing death, it found there was “a reasonable likelihood that the outcome of his trial would have been different if the jury had received” the instruction.
Sentencing; Procedural reasonableness; Upward variance from the Guidelines; Substantive reasonableness; Restitution; The Mandatory Victims Restitution Act (MVRA); 18 USC §§ 3663A(a)(1) & (c)(1)(B); The “course of the conspiracy”; § 3663A(a)(2); Exclusion of a proposed expert witness; FRE 702
[This appeal was from the WD-MI.] Considering defendant-Gray’s challenge to the district court’s restitution order, the court joined other circuits by holding that “[i]f an indictment alleges that a conspiracy began on a certain date . . . a defendant may not be held responsible for losses that occurred before that date.” But it otherwise upheld his sentence and rejected his claim that the district court erred in excluding one of his proposed expert witnesses. Thus, it affirmed his convictions for conspiring to defraud the U.S., making false statements to a federal agency, submitting a fraudulent claim to a federal agency, and stealing government funds, and his above-Guidelines sentence of five years but vacated the $264,631 restitution order. The case arose from Gray’s misrepresentation of his health to the Department of Defense to collect unearned benefits. On appeal, he first challenged the district court’s ruling excluding his proposed expert witness under Rule 702. But the court agreed with the district court that the witness, a neuropsychologist, “had little expertise to offer about Gray’s physical injuries.” As to his sentencing challenges, while Gray claimed the district court miscalculated his criminal history score, he stated in court that he had no objection to the calculations or the underlying facts. Thus, he admitted that he had committed a prior offense and that he “was on supervised release when he committed at least some of the conduct charged in” this case. Thus, the court found his sentence was “procedurally sound.” He also argued that it was substantively unreasonable because it exceeded the top of the Guidelines range by nine months. But the court concluded the district court did not abuse its discretion in imposing the upward variance. “Not only did he steal from the government, but he did so over several years, with truly ‘blatant fraud’ captured on videotape.” He also enlisted his wife in his schemes. Further, Gray “showed ‘zero insight into his own wrongdoing,’ blaming others—the court, Veterans Affairs, ‘the jury, the witnesses, whoever it may be’—instead of taking responsibility for his actions.” As to mitigating factors, the record indicated the district court properly considered his exemplary years of military service. But as to the restitution order, the court noted that under the MVRA, the amount should have been calculated based on Gray’s criminal conduct during “‘the course of the conspiracy.’” No count in the indictment involved “any conduct before 2015. By the indictment’s terms, the conspiracy began in 2015 and concluded in 2019. Accepting a linear theory of time, a conspiracy that began in 2015 does not cause losses in 2004.” As a result, the “restitution order should not have covered losses before” 1/15. Affirmed in part, vacated in part, and remanded for recalculation of the amount due in restitution.
Removal; The Immigration & Naturalization Act (INA); Whether the immigration judge (IJ) erred by failing to advise petitioner of her apparent eligibility for a “fraud waiver” of removability under INA § 237(a)(1)(H) (8 USC § 1227(a)(1)(H)); 8 CFR § 1240.11(a)(2); Eligibility for the fraud waiver; “Failure to appear”; § 1186a(c)(1)–(2); Whether the IJ erred by not informing petitioner of her right to apply for asylum (a violation of department regulations); Board of Immigration Appeals (BIA); Conditional permanent resident (CPR); Immigration & National Service (INS)
The court denied petitioner-Seldon’s petition for review of the BIA’s dismissal of her appeal from an order of removal. It held that the IJ did not err by failing to inform her she had the right to apply for a fraud waiver of removal because she was not “apparent[ly] eligible” for the waiver. It also held that the “IJ did not err when he did not inform Seldon of her right to apply for asylum.” She entered the country from Nigeria in 1992, using her sister’s passport and a tourist visa. She later “married a U.S. citizen and obtained [CPR] status.” When she petitioned for removal of conditions, the INS determined “her marriage was a sham. And when she was confronted with tough questions by officials, she ended the interview[.]” The INS construed her “‘unwillingness to answer questions’ as a ‘failure to appear as required for an interview on [the] petition.’” Because a failure to appear “is a statutory basis to terminate permanent residence, the INS revoked her” CPR status and she was later ordered removed. But she was not removed, and two decades later, she appeared for a contested removal hearing before an IJ, who denied her applications to stay in the U.S. and she was again ordered removed. She unsuccessfully appealed to the BIA “on the grounds that the IJ failed to inform her of her rights to apply for a waiver of removal and to seek asylum.” The court noted Seldon conceded that the IJ’s duty to inform only extended to waivers “for which she was ‘apparently eligib[le].’” The issue then was whether she was “apparent[ly] eligible” for the fraud waiver—§ 1227(a)(1)(H). The government argued “the waiver does not operate to cure her inadmissibility based on the termination of her” CPR status. Thus, the question was “whether, in circumstances like Seldon's, the fraud waiver may waive inadmissibility based on a termination of” CPR status. The court concluded her “constructive failure to attend the interview is not sufficiently related to her fraudulent representations to render her ‘apparent[ly] eligib[le]’ for a fraud waiver.” Her refusal to answer questions was conduct that was “independent from the fraud itself.” The court noted that failure to appear constituted “an independent ground for terminating [CPR] status, regardless of whether the interviewee’s marriage was fraudulent.” The IJ did not err in “failing to inform her of the right to apply for” the fraud waiver. As to the failure to inform her of her right to apply for asylum, the IJ stated twice “on the record that he had ‘not heard anything about a fear of returning to Nigeria’ in” any of the proceedings, without any objection from Seldon’s counsel (whom she did not assert was ineffective).
Consolidated first-party & third-party no-fault action; Auto negligence; “Serious impairment of body function”; MCL 500.3135; McCormick v Carrier; Claim for personal protection insurance (PIP) benefits; Fraudulent insurance act; MCL 500.3173a(4); Candler v Farm Bureau Mut Ins Co of MI; The Michigan Automobile Insurance Placement Facility (MAIPF)
Holding that plaintiff failed to establish a genuine issue of material fact as to whether he met the threshold serious-impairment requirement for his auto negligence claim, the court affirmed summary disposition for defendant-Pugh. It further held that defendant-Citizens, the insurer assigned to his PIP claim by the MAIPF, was properly granted summary disposition on the basis “plaintiff committed a fraudulent insurance act,” precluding him from recovering benefits. Thus, the court also affirmed summary disposition for Citizens in this consolidated first-party and third-party no-fault action. As to the third-party claim, it noted that plaintiff’s failure to respond to Pugh’s summary disposition motion made it difficult for him to support his argument that it was improperly granted. “Summary disposition is properly granted where, like here, the nonmoving party fails to present any evidence that a genuine issue of material fact exists.” While he contended “Pugh failed to present a credible argument in favor of summary disposition and” thus, he did not have a duty to respond to her motion, the court found “no merit in this argument. Pugh’s motion made arguments explaining why there was no genuine factual dispute as to specific issues and [it] was supported by ample documentary evidence.” The court noted that “Pugh presented objective medical records indicating that there was no physical basis for plaintiff’s subjective complaints of pain. The relevant portions of plaintiff’s deposition testimony fail to rebut this evidence and instead set forth, at best, mere subjective complaints of pain.” As to his PIP claim, the court again did not see any merit in his assertion “that Citizens failed to present a credible argument such that [he] was not required to respond to the motion for summary disposition in order to survive it. Like Pugh, Citizens made arguments in its motion explaining why there was no genuine factual dispute as to specific issues and the arguments were supported by ample documentary evidence.” Citizens pointed to his testimony about “having difficulty playing with his children and needing assistance with cutting his hair and bathing his back, which [it] argued was false based on plaintiff’s medical records and the surveillance reports [it] procured. None of the evidence” it identified contradicted “its assertion that [his] testimony was false[.]” He also did not show how any evidence it relied on established a genuine factual dispute.
Conditions attached to the conveyance of land; Compliance with MCL 600.6431(1); Pike v Northern MI Univ; Progress MI v Attorney Gen; When the claim accrued; Mootness; Department of Technology, Management & Budget (DTMB)
[This opinion was previously released as an unpublished opinion on 10/7/24.] Holding that the Court of Claims erred as a matter of law by concluding that the plaintiff-city’s action was not barred by the failure to comply with MCL 600.6431(1), the court reversed the judgment of the Court of Claims and remanded for entry of summary disposition in favor of defendants. The case arose from a dispute over the use of property that was conveyed to the city by the state with conditions attached. Defendants first argued “that the city’s declaratory judgment claim should have been dismissed because the city failed to file a written notice or claim within one year of accrual as required by MCL 600.6431(1).” The court held that the “claim seeking a declaratory judgment was essentially one against the state, and MCL 600.6431(1) applies.” Thus, the court concluded that “contrary to the city’s argument, Progress MI does not stand for the general proposition that MCL 600.6431 never applies if the Attorney General, or another state officer or employee is named as a party.” The relevant question was “instead whether the suit is against the state official in his or her official capacity such that it is a suit against the official’s office.” Here, the case was “clearly against the offices of the Attorney General and the director of the DTMB rather than the individuals occupying those offices and is thus actually a suit against the state itself.” The next issue was when the city’s claim accrued. The parties’ dispute fundamentally concerned “whether the city’s proposed uses for the property fall within the scope of permissible ‘public purposes’ as that term is used in the public act governing the parties’ respective rights relative to the property.” The court held that because “the city’s claim accrued in [3/21] and it failed to timely file its notice or claim within one year as required by MCL 600.6431(1), the city’s claim must be dismissed.” The court concluded that because “the city’s claim must be dismissed for failure to comply with the requirements of MCL 600.6431(1),” it was unnecessary to decide whether the “claim was also barred by the statutory limitations period in either MCL 600.6452(1) or MCL 600.5801(4) because” the issue was moot.
Action to quiet title & for declaratory & injunctive relief; MCL 600.2932(1) & (5); Foreclosure by advertisement; MCL 600.3204; Validity of an assignment; Burkhardt v Bailey; Principle that an assignment does not have to be immediately recorded to be valid & enforceable at a later date; Newman v Real Time Resolutions, Inc; “Subscribe”; Kloian v Domino’s Pizza, LLC; Principle that a conveyance executed pursuant to a power of attorney may be recorded with a register of deeds; MCL 565.36; Chain of title; Discharge of a mortgage; MCL 565.41(1); Validity of an affidavit; MCL 565.451a(b); Wilmington Sav Fund Soc'y, FSB v Clare; 1373 Moulin, LLC v Wolf; Laches; Attorney Gen v PowerPick Club; The 15-year statute of limitations for foreclosing on a mortgage; MCL 600.5803; Relationship between laches & the statute of limitations; Tenneco Inc v Amerisure Mut Ins Co
The court held that the trial court did not err by granting defendant summary disposition of plaintiff’s action to quiet title and for declaratory and injunctive relief. Plaintiff filed this action to quiet title to the property at issue in her favor, and for declaratory and injunctive relief to prohibit defendant from engaging in foreclosure proceedings on the basis that a 2015 recorded assignment was insufficient for it to establish a proper chain of title to the mortgage and that the mortgage had been discharged. The trial court granted summary disposition for defendant on the basis the 2015 “assignment properly established a chain of title, the affidavit was sufficient to set aside any discharge of the mortgage, and laches should not be applied because defendant had initiated foreclosure proceedings within the statutory period of limitations.” On appeal, the court first found defendant properly recorded an assignment in 2015 when the transfer of the note and mortgage occurred in 2011. “On its face, the power-of-attorney document authorized” defendant’s employee to execute an assignment on behalf of the prior mortgagee. “The 2015 recorded assignment was valid, and established the proper chain of title for defendant to seek a foreclosure.” The court next found that “[w]ithout an agreement or discharge signed by defendant, there is nothing for plaintiff to enforce against defendant under MCL 566.1.” As such, “to whatever extent the mortgage discharge could have had effect, the discharge lacked consideration and was not effective as to plaintiff.” Finally, it found that while “plaintiff made decisions that made it harder for her to pay the balance on the mortgage, plaintiff still had a considerable amount of time in which to rearrange her finances to avoid foreclosure. To date, defendant has not skipped a step required to foreclose on the property and the initiation of foreclosure proceedings was within the limitations period.” Affirmed.