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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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The National Firearms Act; 26 USC § 5845(b); Whether an agency’s decision was entitled to deference under Chevron USA, Inc v Natural Res Def Council; Whether a “bump stock” may be properly classified as a machine gun under § 5845(b)
[This appeal was from the WD-MI.] In an order on a petition for rehearing en banc after the court vacated its prior opinion (see e-Journal # 75141 in the 3/31/21 edition for the original opinion), with equal numbers of judges voting to affirm and to reverse the district court’s ruling, it affirmed the district court. The district court ruled that plaintiffs-gun owners were unlikely to succeed on the merits and denied a preliminary injunction as to implementation of the ATF’s rule classifying bump stocks as machine guns.
Whether the case was moot; Whether the district court should have stayed or dismissed this case to allow the remaining claims to be arbitrated under the Federal Arbitration Act (the FAA); 9 USC § 3
[This appeal was from the ED-MI.] Holding that the district court should have stayed this case and sent the remaining claims to arbitration rather than dismissing it without prejudice, the court reversed. In this protracted business litigation, the district court ruled that the remaining claims should be sent to arbitration. But instead of staying the case during the arbitration, it dismissed it without prejudice. Plaintiff-Arabian Motors argued that the district court erred by ruling that the remaining claims belonged in arbitration. Defendant-Ford Motor cross-appealed, maintaining that the district court should have stayed the case rather than dismissing it. After determining that the case was not moot, the court held that the district court “should have granted Ford’s request for a stay.” It found that the FAA supported granting the stay – the “command that a district court ‘shall on application of one of the parties stay the trial of the action’ conveys a mandatory obligation.” By staying the case, the district court retains jurisdiction. On the other hand, dismissing the case required the filing of a new action, which could be in front of a new judge. The court noted that “Congress told district courts to grant a stay when a party moves for one in this context and did so in a way that admits of few, if any, exceptions.” Thus, it reversed the dismissal, granted the stay, and allowed the dispute to go to arbitration.
Claims under 42 USC § 1983; False arrest; Probable cause; State-created danger; Civil conspiracy; Municipal liability; Governmental immunity; Assault & battery; Intentional infliction of emotional distress (IIED)
The court held that although defendant-Martinez’s act of sending a photo, and the other officers’ failure to mention his having sent it, reflected “extremely poor judgment,” it was not persuaded that their conduct rose “beyond honest, if tragic, negligent error.” Thus, it affirmed summary disposition for defendants. The case arose “out of a brutal beating and sexual assault plaintiff suffered at the hands of several individuals associated with” defendant-Treehouse Club Marijuana Dispensary after an investigation into a break-in there. Defendant-Digiacomo and Martinez “arrested plaintiff as a suspect. During the investigation, Martinez took a picture of plaintiff with his cellphone and texted the picture to a Treehouse employee.” Plaintiff brought four claims pursuant to § 1983: “false arrest, state-created danger, municipal liability for constitutional violations, and conspiracy to deprive plaintiff of his civil rights.” As to the false arrest claim, the court held that the record supported the trial court’s determination Martinez and Digiacomo “had probable cause to arrest plaintiff under the totality of the circumstances.” When they “received the breaking-and-entering report, they were advised that two perpetrators had been present: a man wearing a red scarf and carrying a pipe or sledgehammer, and another man carrying a backpack. It was not unreasonable to suspect that the report of a car at a nearby vacant house, which was boarded up and without power, might be connected. Upon arrival at the house, they found a scarf, a backpack, and a sledgehammer similar to those depicted in the surveillance imagery from the Treehouse.” Although the video showed only two men, one of the two men found in the house with plaintiff “was positively identified on the video, and one of the men at the house said that they had been together all night. Under the totality of the circumstances, a prudent person would be persuaded that plaintiff was not merely present at the scene of a crime, but had actually been a participant in the breaking-and-entering at the Treehouse.” As to the state-created danger claim, the court considered whether Martinez should have known that his affirmative act of texting the photo “would place plaintiff in danger. Ultimately, although it was easily a negligent decision, we are not persuaded that it rises to the level of deliberate indifference.” The court also affirmed dismissal of this claim, as well as plaintiff’s other claims under § 1983 and the grant of governmental immunity to the officers on his assault and battery and IIED claims.
Due process; Standard to review a request for expert assistance; People v Kennedy; Affirmative defense; Other acts of domestic violence; Application of MCL 768.27b; MRE 404(b)(1); MCL 768.27b(3)
The court held that “the Court of Appeals erred by holding that defendant was required to make the additional showing necessary for affirmative defenses in order to be entitled to expert assistance and by holding that rules of evidence other than MRE 403 do not apply to other acts evidence admitted under MCL 768.27b.” Thus, it vacated the judgment of the Court of Appeals in part, reversed in part, and remanded to the Court of Appeals. The case concerned a death where the only issue was defendant’s intent. He alleged a violation of his due-process rights. He argued “both that an expert was necessary to support his theory that the death was accidental and that evidence of other acts of domestic violence was improperly admitted.” The court determined that “the Court of Appeals erred by applying the standard for affirmative defenses to defendant’s request for expert assistance.” Because it failed to apply the correct standard, the court vacated the Court of Appeals’ analysis on this issue and remanded “to the Court of Appeals for consideration of the correct standard under Kennedy—namely, whether there was a reasonable probability that the expert would have been helpful to the defense and whether the denial of expert assistance rendered the trial fundamentally unfair.” As to the application of MCL 768.27b, the court concluded that it is “apparent that rules of evidence not specifically mentioned in MCL 768.27b may nonetheless be considered when determining whether evidence is admissible. Specifically, MCL 768.27b does not limit or preclude the consideration of MRE 802, which states that hearsay is generally not admissible.” Thus, it held that given “the plain language of MCL 768.27b(3) allows for the consideration of other rules of evidence, the trial court erred as a matter of law by failing to consider these other rules in determining whether the challenged prior acts were admissible.”
Sentencing; Challenge to the scoring of OVs 1 & 2 on the basis of acquitted conduct; People v Beck
Holding that defendant failed to show any scoring error or violation of the Michigan Supreme Court’s holding in Beck, the court affirmed. He was convicted of CSC I (weapon used), kidnapping, and accosting a child for immoral purposes. He was sentenced to 210 to 480 months for each of his convictions of CSC I and kidnapping, as well as 12 to 48 months for his conviction of accosting a child for immoral purposes, with his sentences to run concurrently. Defendant argued that the trial court erroneously assessed points under OV 1 and OV 2 on the basis of acquitted conduct because he “was assessed points under those OVs as if he had used a gun even though the jury acquitted him of felonious assault and the felony-firearm counts.” He primarily relied on Beck. He was assessed 15 points for OV 1 and 5 points for OV 2. Although the jury acquitted him of felonious assault and felony-firearm, that did “not necessarily mean that the jury did not find beyond a reasonable doubt that defendant was armed with a gun for purposes of his” CSC I convictions. As the case was presented to the jury, it could not have convicted him of CSC I “as it did unless it found beyond a reasonable doubt that defendant was armed with a gun.” Thus, because the jury necessarily found beyond a reasonable doubt that he “was armed with a gun to support its finding that defendant was guilty of two counts of [CSC I], the trial court did not rely on acquitted conduct to support the scoring of OV 1 and OV 2 but instead relied on conduct for which defendant was found guilty beyond a reasonable doubt by the jury.”
Setting aside a conviction; MCL 780.621(14); People v Rosen; Principle that a court was not permitted to set aside a conviction for a traffic offense; MCL 780.621(3)(d); “Traffic offense”; MCL 780.621a(b); Expungement; MCL 257.732(22)
Holding that the trial court failed to explain how expungement would be contrary to the public welfare, the court reversed the trial court’s denial of defendant’s petition and remanded. Defendant, who was 18, pled guilty to manslaughter for operating a motor vehicle with a blood-alcohol content of 0.092%, running a stop sign, striking an SUV, and injuring the driver and killing the passenger. The trial court sentenced to him to 12 months in jail and 60 months of probation. After completing his sentences, defendant sought expungement of the conviction, petitioning the trial court to set it aside. The trial court denied the petition, finding expungement would be contrary to the public welfare. In a prior appeal, the court denied leave. But the Supreme Court, in lieu of granting leave, remanded. On remand, the court noted that the trial court’s decision suffered from “multiple flaws.” First, it was “not up to the trial court to accept or reject the legislative decision that traffic offenses shall only encompass violations of the Michigan vehicle code and comparable ordinances.” Second, the trial court “improperly focused solely on the nature of the offense, i.e., driving while intoxicated causing loss of life, in denying the petition to set aside defendant’s manslaughter conviction.” Third, and finally, the court found “problematic the trial court’s observation ‘that there should be a record’ of defendant’s involvement in an offense resulting from the operation of a motor vehicle so as to serve ‘public policy.’” It concluded that “there can be no expungement of defendant’s manslaughter conviction with respect to his driving record maintained by the Secretary of State. It will remain intact.” Although the trial court “appeared to acknowledge this fact at the very end of the hearing, [it] failed to give any explanation why maintenance of a record by the Secretary of State reflecting that defendant’s operation of a motor vehicle caused a death was inadequate to satisfy the court’s perceived view of public policy.”
Political asylum; A well-founded fear of persecution; Whether “changed country conditions” made a well-founded belief in future persecution unlikely; 8 CFR § 1208.13(b)(1)(i)(A)
The court affirmed the BIA’s order denying petitioner-Mbonga political asylum, concluding that there were sufficient general sources of evidence the political conditions in the Democratic Republic of the Congo had changed and he no longer had a “well-founded” fear of future persecution if he returned there. Mbonga suffered political persecution in the Congo. However, the BIA denied him asylum because his own political party now has power there, and future persecution seemed unlikely. He argued that the BIA was not entitled to rely on the fact his own party was now in control of the country, but must “rely on specific evidence tailored to his local situation.” The court noted that the regulations create a “burden-shifting approach,” and that it is the immigration authorities, not the applicant, who has the duty to show by a preponderance of the evidence that the country’s conditions have changed in a manner that would eliminate the fear of persecution. “The government must tie that change to the specific refugee’s situation by showing that the refugee now lacks a well-founded fear of persecution.” However, the court noted that “this applicant-specific element should not be confused for a mandate to present applicant-specific evidence—say, evidence that the specific person who persecuted the refugee has died. To the contrary, general sources (commonly, country-condition reports from the State Department) regularly meet the government’s burden to show that changed conditions rebut a refugee’s well-founded fear of persecution.” In this case, the IJ relied on news articles about conditions in the Congo. A member of Mbonga’s own party had become president and entered into a power-sharing agreement with the opposing party. These changed conditions made it unlikely Mbonga would be persecuted because of his political views. The burden then shifted to Mbonga to establish that he still had a well-founded fear of persecution under the country’s current conditions. The court held that he failed to do so where “[h]e provided no detailed evidence suggesting that the local officers who persecuted him in the past continue to hold power and still seek to harm him.” While he relied on a letter he received from a friend, the court found that the BIA could reject the “speculative and conclusory allegations” that Mbonga would still face “a generic risk of harm despite the governmental change.” Thus, it denied his petition for review.
Medical malpractice; Proximate cause; Kalaj v Khan; Expert testimony; Woodard v Custer; Motion to adjourn; Motion to extend discovery; McDonald Ford Sales, Inc v Ford Motor Co; Affidavit; MCR 2.116(G)(5)
The court held that the trial court properly granted defendants-physical therapy providers summary disposition of plaintiff’s medical malpractice case. Plaintiff sued defendants for an injury he claimed he suffered while rehabbing his surgically repaired shoulder. The trial court granted defendants’ motion for summary disposition, in part, because plaintiff failed to present expert testimony showing they proximately caused the reinjury to his shoulder. On appeal, the court first noted that even if it “were inclined to consider plaintiff’s argument that the trial court followed the wrong analysis, ultimately, it would not matter because plaintiff agrees with the conclusion that this is a medical malpractice case.” It next found that the trial court did not err by granting defendants summary disposition where plaintiff “failed to produce any evidence from an expert showing defendants proximately caused his injuries.” The court further noted that because plaintiff failed to reschedule the hearing on his motion to adjourn, which appeared “premised on a fatal flaw which could have been remedied before the close of discovery, the trial court did not abuse its discretion” by declining to consider it. Finally, it found no merit to plaintiff’s “disingenuous argument that defendants engaged in impropriety in seeking” his surgeon’s affidavit, or his “position contesting the contents of the affidavit.” The trial court did not err by considering the surgeon’s affidavit in its decision to grant summary disposition. Affirmed.
Termination under §§ 19b(3)(h) & (j); Children’s best interests; In re Olive/Metts Minors
Holding that the trial court did not clearly err in determining that termination was in the children’s best interests, the court affirmed the order terminating respondent-mother’s parental rights. Her only argument on appeal was that terminating her compliance with her case services plan was not in the children’s best interests. But the court noted that regardless of her compliance with the plan, she “testified that she would be incarcerated for carjacking for a minimum of seven years, that she was in no position to care for the children, and that none of the potential relative placements that she had identified were able to care for the children. Thus, although compliance with a case services plan can weigh against termination, respondent’s compliance in this case does not change the fact that she will be unable to provide any direct care for the children for a minimum of seven years and that, despite suggesting several potential relative placements, she is not able to provide them with proper care by assuring they are cared for by a suitable relative.” As to her assertion the trial court failed to adequately consider the children’s bond to her, she “testified at the termination hearing that she did not have a very strong bond with” one of the children (M) because M was separated from her “at a very early age.” The evidence of her bond with the other child (R) was that R “had asked about and sent letters to respondent. However, it had been over seven months since” R had seen her, and R told her therapist “she wanted her foster parents to adopt her. Thus,” the trial court did not clearly err in finding that their bond was diminishing. Given the evidence, the trial court’s findings as “to the bond between respondent and the children was adequate and was not clearly erroneous.” It also did not reversibly err in failing “to require a more thorough investigation into relative placements.” As to its consideration of “the children’s need for permanency and stability” the court noted that they were both “in a preadoptive foster home, were bonded with their foster parents, and were thriving.”