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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Age & race discrimination claims under the Elliott-Larsen Civil Rights Act (ELCRA); Circumstantial evidence; Prima facie case; Hazle v Ford Motor Co; Legitimate, nondiscriminatory reason; Retaliation; Causation; Motion to compel the production of documents
The court held that plaintiff-former employee failed to establish her prima facie case as to her age and race discrimination claims or the causation element of her retaliation claim. Thus, it affirmed summary disposition for defendants. The court concluded she did not establish the fourth element of her ELCRA discrimination claims — “that her job was given to another person under circumstances giving rise to an inference of unlawful discrimination—because the evidence instead shows that her job was entirely eliminated.” While she stated in an affidavit that she was replaced by a young white woman (H), her assertion that this was so “was the only evidence she produced and it was based on hearsay from” another employee of defendant-MSU. “Plaintiff also presented a staff list that referred to [H’s] job as ‘Student Office Support/Program Presenter,’ which is not the same as plaintiff’s job of office assistant/secretary. Importantly, plaintiff did not present any statement from [H] herself about her position or duties. Because plaintiff failed to show that her job was given to another person, she failed to establish a prima facie case of discrimination.” The court added that even if she “could establish a prima facie case, she could not survive a motion for summary disposition on her” discrimination claims because “defendants met their burden of showing that plaintiff’s position was eliminated for budgetary reasons.” Thus, she would have had the burden “to show that the budget issues were actually a pretext for a discriminatory firing” and she did not offer “any evidence that the department budget cuts were not the true reason she was terminated.” As to her retaliation claim, the court concluded she failed to establish “a causal connection between the protected activity and the adverse employment action.” There was no dispute that she “filed discrimination complaints in 2014” and that she brought informal complaints to a supervisor. But she “was terminated approximately four years after the formal complaint was filed, and plaintiff did not present evidence of when she raised any other complaints.” As to the trial court’s denial of her motion to compel the production of documents, the court found that she failed to show defendants did not produce documents.
Whether a robocall pertaining to mail in voting falls within the limiting construction of MCL 168.932(a); Overbroad; People v Burkman (Burkman I & II); Probable cause that defendants knew the robocall contained false information; Probable cause to believe the robocall related to voting procedures; Whether MCL 168.932(a) was unconstitutional as applied to defendants
In these consolidated appeals “on remand from our Supreme Court with the direction to consider whether defendants’ conduct in disseminating a robocall pertaining to mail in voting falls within the limited construction test created to remedy MCL 168.932(a) as unconstitutionally overbroad and to address any remaining constitutional arguments,” the court affirmed the trial court’s denial of defendants’ motion to quash. The parties disputed whether the robocall was intentionally false. Defendants urged the court “to apply a narrow interpretation of false and that ‘intentionally false’ should be read to mean empirically false, resulting in dismissal of the charges against them.” On the contrary, the prosecutor contended that the issue of falsity was previously decided in Burkman I and II. The court was “tasked to determine, as a matter of law, whether the statements were actually intentionally false, but whether there was ‘probable cause to believe that’ defendants’ statements were intentionally false.” It concluded that “there was sufficient circumstantial evidence at the bindover to establish probable cause that defendants knew the robocall contained false information.” The court held that “because defendants lied about distributing the robocalls, it was reasonable to infer they knew what they were doing was wrong.” Thus, it found that because “there was probable cause to support the intentional falsity element, the trial court’s order denying the motion to quash was not erroneous on that ground.” Next, the court addressed “whether the robocall was ‘related to voting requirements or procedures . . . .’” It concluded that “there was probable cause to believe the robocall related to voting procedures.” It held that “there was ‘a quantum of evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief’ that the robocall contained intentionally false speech related to a voting procedure.” Stated differently, it determined that “there was probable cause to believe defendants’ actions fell within the Court’s limiting construction.” Thus, it held that “the circuit court’s order affirming the district court’s bindover was not erroneous.” Finally, defendants claimed “that MCL 168.932(a) was unconstitutional as applied to defendants because the statements in the robocall were opinions and plausibly true.” The court concluded, “as a matter of law, that the robocall content reflected that it was merely an opinion regarding mail-in voting procedure and plausibly true.”
Motion to quash; First-degree home invasion; MCL 750.110a(2)(b); Whether defendant/co-owner was entitled to enter the home without permission; Effect of a joint tenancy with a right to survivorship; Albro v Allen; “Without permission”; MCL 750.110a(1)(c); Principle that it is possible to “break & enter” one’s own home if he or she has lost the legal right to be present in that home by operation of a court order; People v Dunigan; Abandonment of a home; Scoby, Trustee of Lanny L Scoby Trust v Mitchell
The court held that because defendant-Berry’s right to enter the home as co-owner had not been altered, he could not be charged with first-degree home invasion on the basis he entered the home without his co-owner’s (M) permission. Defendant-Buchholz likewise could not be charged because Berry gave her permission to enter the home on the night in question. Thus, it affirmed as to the trial court’s quashing of charges of the first-degree home invasion charge, but remanded as to the other charges. Defendants were bound over for trial on multiple criminal charges stemming from their entry of a home co-owned by Berry and M. The trial court granted their joint motion to quash the bindover on the first-degree home invasion charge, but denied it as to the lesser charges. On appeal, the court rejected the prosecution’s argument that “Berry’s behavior after he moved out of the home established that he abandoned the home, and in so doing altered his interest in the home to one akin to that of a landlord.” However, the prosecution did “not support with legal authority, binding or not, its assertion that a joint tenancy with full rights of survivorship can be transformed to something that has the characteristics of a landlord-tenant relationship.” And its theory was inconsistent with M's preliminary exam "testimony that she and Berry never had a landlord-tenant relationship.” There was also no court order that impeded Berry’s ability to enter the home, and he did not abandon the home.
Motion for relief from judgment; “Good cause”; MCR 6.508(D)(3); People v Killebrew; Ineffective assistance of appellate counsel
The court held that failure to establish good cause was fatal to defendant-Slusser’s claim under MCR 6.508(D)(3) and, thus, the trial court did not abuse its discretion in denying his motion for relief from judgment. He pled nolo contendere to AWIGBH or by strangulation, domestic violence, third offense, and being a fourth-offense habitual offender. The “prosecutor agreed to recommend that the circuit court sentence Slusser to no more than 60 months . . . .” The trial court ultimately sentenced him to 152 to 360 months. The court held that the trial court correctly ruled that he “failed to establish ‘good cause’ for relief from judgment on the ground that appellate counsel should have raised” the issue that Slusser’s plea was not knowing and voluntary because the trial court did not specifically inform him that his misconduct after his plea could invalidate his Killebrew agreement “in his first application for leave to appeal.” The record reflected “that the prosecutor raised the issue of Slusser making 1,211 phone calls to the victim, RM, at [the] first sentencing hearing and argued that the trial court should consider his misconduct at sentencing. The trial court listened to one of the phone calls that Slusser made, during which he spoke to RM for over 13 minutes in an attempt to persuade her to appear in court on his behalf to ask for a sentence that was less than the 60 months contemplated in his Killebrew agreement.” The court noted that “at the continuation of the sentencing hearing, defense counsel stated on the record that he wanted the trial court to abide by the sentence cap of 60 months’ imprisonment, notwithstanding Slusser’s conduct between his plea and sentencing.” Thus, it concluded that “the issue was raised on the record in the trial court that the prosecutor no longer recommended a minimum sentence of 60 months in prison and the trial court agreed that 60 months was an insufficient sentence in light of Slusser’s post-plea harassment of RM. At no time did Slusser or his attorney express an interest in withdrawing the plea and both spoke at length on the record at the sentencing hearing.” The court held that under “the circumstances, his appellate attorney’s decision to raise a claim with regard to the length of the trial court’s minimum sentence was logically sound, and so was the decision not to challenge Slusser’s plea and request a trial.” The failure to expose him “to a potentially longer sentence was presumably strategic and Slusser made no showing that appellate counsel’s failure to raise the issue fell below any prevailing professional norms since it would potentially expose [him] to a higher punishment ceiling and longer custodial time. Further, Slusser stated his decision on the record that he wanted to be sentenced by the trial court, which is directly contrary to his claim that he should have been allowed to withdraw his plea.”
Ineffective assistance of counsel; Trial strategy; Prejudice; Other acts evidence; MRE 404(b); MCL 768.27b; Admission by a party opponent; MRE 801(d)(2)(B); Relevance; MRE 401; Unfair prejudice; MRE 403
The court held that defendant was not denied the effective assistance of counsel and that the trial court did not err by admitting other acts evidence. He was convicted of CSC I and CSC II for sexually molesting the victim (LR) when she was 15. On appeal, the court rejected his argument that his trial counsel was ineffective for failing to present expert testimony regarding LR’s forensic interview after she disclosed he had sexually assaulted her. Trial counsel’s theory “was that LR was fabricating her sexual assaults as a way of getting attention from her friends, as evidenced by which details LR could and could not remember, and which details were only disclosed years later at trial. Defendant’s proposed expert testimony would have contradicted this theory, and instead would have asserted that LR was not fabricating the matter. Instead, LR—who was 15 years old at the time of the assaults and was 18 years old at the time of trial—was misremembering whether she was sexually assaulted in the first instance because her forensic interview was not performed entirely according to protocol and subsequent psychotherapy affected her memory.” This argument was “unavailing as it merely present[ed] a disagreement over trial strategy, which is insufficient to establish that trial counsel’s performance fell below an objective standard of reasonableness. Regardless, defendant has failed to establish that there is a reasonable probability that the outcome of defendant’s trial would have been different.” The court also rejected his claim that the prosecution “erred by eliciting testimony from LR that she was afraid of defendant because he had a firearm, he was violent when he killed a deer previously, he had driven a car through someone’s house, and he hit someone with his car.” Given the “minimal amount of attention that was devoted at trial to defendant’s statements to LR, and the lack of further details presented about these alleged incidents, LR’s testimony in this regard cannot be said to be unfairly prejudicial.” As such, “testimony about defendant’s statements was admissible, and defendant’s trial counsel cannot be ineffective for failing to make a futile objection.” Affirmed.
Interpretation of the scope of the court’s prior remand as to damages; Law-of-the-case doctrine; Rule of mandate; “Vacate” & “as necessary”; Paramount Enterprises Land, LLC (PEL)
Concluding the “trial court abused its discretion by entering its order without exercising” its discretion as to whether to allow defendant/counterplaintiff-PEL “to present evidence that it suffered damages[,]” the court vacated and remanded. “The trial court’s order followed a remand from” the court, after it had “affirmed the trial court’s earlier ruling that PEL had a prescriptive easement, but vacated trial court’s earlier award of damages.” At issue here was the trial court’s interpretation of the scope of the court’s remand order. Intervening plaintiffs argued that the court’s “order forbade the trial court from permitting PEL to submit evidence of its damages.” PEL asserted “that the trial court was required to permit it to submit evidence of its damages.” The court held that both were wrong. “The correct understanding of our remand order is that the trial court had discretion regarding whether to permit PEL to present evidence that it suffered damages.” The court noted that it previously concluded “PEL did not establish any damages of its own on the record that existed at the time of the prior appeal. Although we commented on what the evidence suggested, we did not hold that PEL necessarily had no damages that it could have suffered. With this clarification,” the court considered the trial court’s compliance with the remand order. It held that “a correct interpretation of our remand order is that the trial court had the discretion to decide whether (or not) to reopen the proofs as to damages suffered by PEL alone. The trial court necessarily abused its discretion by failing to recognize that it had the discretion to reopen the proofs.” Seeking to “avoid further confusion on remand,” the court emphasized “that the trial court need not reopen proofs. When deciding whether to reopen proofs, trial courts may consider whether the party was previously diligent and whether the party would gain an unfair advantage.” It has the discretion on remand to reopen the proofs.
Disposition of tax-foreclosure proceeds; MCL 211.78t(2); Rafaeli, LLC v Oakland Cnty; Notice; Raise or waive; Principle that courts shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties; MCL 600.2301; Substantial compliance; The wrongful-death saving statute; MCL 600.5852(1); In re Barry Cnty Treasurer for Foreclosure; Taking without just compensation; The harsh-and-unreasonable-consequences exception
The court held that the trial court did not err by denying claimants’ amended motion to disburse the proceeds that remained from the foreclosure sales of the decedent’s properties after the satisfaction of tax delinquencies, interests, penalties, and fees. Petitioner opposed the motions because claimants had not timely submitted their notices of intention. The trial court denied the amended motion, finding the notice deadline was a requirement to recover their remaining proceeds. On appeal, the court found each of claimants’ arguments meritless. First, it rejected their suggestion that it apply the substantial compliance rule to overlook their failure to timely file notice, noting they presented “no compelling reason why [it] should excuse them from their obligation to afford the trial court an opportunity to hear these arguments.” As such, it declined “to overlook the preservation requirements and deem[ed] these issues waived.” Next, it rejected their argument that the wrongful-death savings provision applied to toll the notice period. “Even if the saving provision applied, it would not apply in the present case because [the decedent] died prior to the foreclosure. ‘[T]he death-saving provision applies only to claims that survive the decedent’s death by operation of law. Any claim to surplus proceeds accrued after foreclosure of the property, so the claim was not in existence when’” the decedent passed away. Finally, the court rejected claimants’ contention that petitioner’s retention of the proceeds was a taking without just compensation, that it should apply the harsh-and-unreasonable-consequences exception to MCL 211.78t(2)’s statutory notice requirement, that their right to procedural due process was violated by the statute’s failure to provide adequate notice, and that the forfeiture of the proceeds caused by failure to strictly comply with the notice provision violated their rights to substantive due process. “Claimants acknowledge that we are bound by the rule of stare decisis to reject these arguments, and we decline their invitation to answer these questions anew.” Affirmed.