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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Willful neglect of duty in violation of MCL 750.478; Whether an obligation contained in a sheriff’s policy manual constitutes a duty “enjoined by law” for purposes of MCL 750.48; Distinguishing People v Medlyn; Comparing People v Parlovecchio; Statutory duty to maintain security of the jail under MCL 51.75; People ex rel McCallum v Gebhardt; Wayne County Sheriff’s Department (WCSD)
The court held that “an obligation imposed by a sheriff’s policy manual does not constitute a duty enjoined by law for purposes of MCL 750.478,” and that the prosecution did not identify the statutory duty imposed by MCL 51.75 as the duty defendant-former sheriff’s deputy failed to perform. Thus, the court remanded to the district court to allow the prosecution an opportunity to move to amend its complaint, and then allow defendant an opportunity to respond. It directed that if the prosecution chooses not to amend its complaint, the district court shall dismiss it. Defendant was charged with willful neglect of duty for allegedly allowing an inmate to escape the county jail as he was taking a smoke break outside. He allegedly “saw the escaping inmate and another deputy chasing the inmate, but ignored the situation and failed to assist in the inmate’s capture in violation of WCSD policy.” The district court issued a misdemeanor warrant for willful neglect of duty in violation of MCL 750.478. It later “denied defendant’s motion to quash, saying only that it based its decision on its review of the statutes and caselaw.” The circuit court affirmed, finding “it was permissible for the prosecution to cite an obligation imposed by the WCSD’s policy manual as the basis for the duty ‘enjoined by law’ that defendant allegedly neglected to perform.” On appeal, the court agreed with defendant that an obligation contained in a sheriff’s policy manual does not constitute a duty “enjoined by law” for purposes of MCL 750.48. “Like a contract, an obligation imposed by a sheriff department’s policy manual does not create a legal duty that a public officer or employee can be compelled to perform in a mandamus action[.]” A policy manual “drafted by a sheriff’s department, like a contract, is not ‘law.’ A violation of a sheriff department’s policies may result in the department taking adverse employment action against the violating employee, but we hold that such a violation cannot, standing alone, result in criminal liability under MCL 750.478.” The court declined “to opine on whether the prosecution’s allegations were sufficient to sustain a charge that defendant willfully neglected to perform” the duty enjoined by MCL 51.75 because it did not allege this in its complaint.
Sufficiency of the evidence for a second-degree murder conviction; Self-defense; Prosecutorial misconduct; Prearrest silence evidence & argument; Fifth Amendment right to remain silent; Ineffective assistance of counsel; Failure to raise a futile objection; Sentencing; Scoring of OV 19; MCL 777.49(c)
The court held that there was sufficient evidence to support defendant’s second-degree murder conviction. Also, because his “prearrest and pre-Miranda silence was not constitutionally protected,” he did not show “that the prosecutor violated his constitutional rights.” Thus, he “failed to establish a plain error” based on the prosecutor’s conduct, and was “not entitled to a new trial on this basis.” Further, he was not denied the effective assistance of counsel, and the trial court did not clearly err in scoring 10 points for OV 19. He was also convicted of felony-firearm and sentenced as a fourth-offense habitual offender to 50 to 90 years for murder, to be served consecutive to 2 years for the felony-firearm conviction. Defendant argued that the prosecution failed to disprove that he acted in self-defense. His “challenges, including what inferences could be drawn from the evidence, are related only to the weight and credibility of the evidence, which were issues for the jury to resolve.” The court noted that the “jury heard from prosecution eyewitnesses, defense witnesses, and observed video evidence that captured defendant’s movements before, during, and after the shooting. For the charged crime of first-degree premeditated murder, the jury was also instructed on the lesser offenses of second-degree murder and voluntary manslaughter, as the defense requested. The jury was free to accept or reject the theory of either party in light of the evidence presented at trial, and we will not interfere with the jury’s role of determining issues of weight and credibility.” In addition, his “reliance on his view of what inferences should be drawn from the evidence disregards that we are required to resolve all conflicts in the evidence in favor of the prosecution, . . . that this deferential standard of review is the same whether the evidence is direct or circumstantial, . . . and that it is well established that ‘[c]ircumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime.’” The court also found that defense counsel was not ineffective for failing to make futile objections. Affirmed.
PIP & uninsured/underinsured motorist benefits; Material misrepresentation of fact; Titan Ins Co v Hyten
The court held that there existed a genuine issue of material fact as to whether plaintiff “made a material misrepresentation of fact in not listing her daughter’s Ford Fusion on plaintiff’s insurance application for her own vehicle.” She alleged that “while driving her 2008 Dodge Caliber, she was injured in a traffic accident.” At issue was her “alleged misrepresentation in her insurance application by failing to disclose that she was a co-registrant on a vehicle leased by her daughter (a 2015 Ford Fusion) and for which plaintiff co-signed the loan.” The court concluded that “while plaintiff’s evidence is not overwhelming, it is still more than” presented by defendant-insurer “(the party claiming the existence of a misrepresentation). While it might not be sufficient to support summary disposition in favor of plaintiff, it is sufficient to support a denial of defendant’s motion for summary disposition. And, as Titan points out, the burden is on defendant to prove that the representation was false and that plaintiff made it knowing that it was false when she made it.” At this point, defendant was “unable to meet that burden.” It could “neither show that plaintiff made a misrepresentation nor does defendant establish how, even if there is a misrepresentation, that the misrepresentation would make it liable for an accident involving the daughter’s vehicle beyond a mere conclusory claim that it does.” Reversed and remanded.
Action by a healthcare provider to recover personal protection insurance (PIP) benefits under the No-Fault Act; Unlawful taking of a vehicle; MCL 500.3113(a); Ahmed v Tokio Marine Am Ins Co; “Taken unlawfully”; Spectrum Health Hosps v Farm Bureau Mut Ins Co of MI; Michigan’s misdemeanor joyriding statute; MCL 750.414; Rambin v Allstate Ins Co; “Take” & “use”; Monaco v Home-Owners Ins Co; Comparing VHS of MI, Inc v State Farm Mut Auto Ins Co
The court held that the trial court did not err by denying defendant-insurer’s motion for summary disposition of plaintiff-healthcare provider’s action seeking PIP benefits, and granting plaintiff summary disposition. Plaintiff sought PIP benefits for services it provided to nonparty-F, who was injured when he crashed his mother’s (J) car. The trial court denied summary disposition for defendant, granted summary disposition for plaintiff, and denied defendant’s motion for reconsideration. On appeal, the court rejected defendant’s argument that the trial court erred in its rulings because F’s operation of J’s vehicle was an “unlawful taking,” thus disqualifying him and plaintiff from recovering no-fault benefits. Comparing VHS, the court noted there was “no question that possession was transferred to [F] voluntarily, as supported by deposition testimony from both [J] and [F]. In fact, [J] specifically stated that [F] was in possession of the vehicle with her blessing, despite her restriction on his use of the vehicle.” Because the vehicle’s “possession was voluntarily transferred from [J] to [F], there was no taking under MCL 500.3113(a), and it is immaterial that [F’s] subsequent use of the vehicle by driving it without permission exceeded [J’s] authorized scope of use.” The court also agreed “with plaintiff’s assessment that the anticipated actions of an insurer have no bearing on the applicability of exclusions under MCL 500.3113(a). Thus, any consequence to [J] as a result of the trial court’s ruling” did not require reversal. Affirmed.
Medical malpractice; Necessity of a notice condition in a qualified protective order (QPO) requiring disclosure of ex parte meetings; MCR 2.302(C); Szpak v Inyang; Sampson v Shorepointe Nursing Ctr (Unpub); Good cause; Health Insurance Portability & Accountability Act (HIPAA) (45 CFR § 164.512(e)(1)(v))
The court held that the trial court erred by including a notice condition in defendant’s QPO. Plaintiff sued defendant for medical-malpractice after she was injured in a fall at its assisted-living center. During discovery, defendant sought a QPO allowing it to conduct ex parte meetings with her healthcare providers. The trial court issued the QPO “with a condition requiring defendant to ‘disclose to [p]laintiff within 7 days of any such [ex parte] meetings who they have interviewed.’” The court agreed with defendant that the trial court failed to identify good cause to impose a notice condition upon the meetings, so it abused its discretion by adding the condition to the QPO. “Although plaintiff has presented substantial evidence that such a notice condition is commonplace in QPOs issued by the trial courts in Michigan, this Court has issued an unbroken line of opinions and orders concluding that such a notice condition is impermissible unless the trial court identifies case-specific facts that demonstrate such a notice condition is necessary.” The court noted that, as “in Szpak, plaintiff’s request for notice of meetings with her healthcare providers has no bearing on the disclosure of her health information, so ‘MCR 2.302(C) requires that the additional conditions be justified in their own right.’ Plaintiff’s claim that the notice condition was justified because it provides an efficient method for her to obtain information about the ex parte interviews is meritless. Despite general grievances about the discovery process, [she] has not articulated how she would suffer ‘undue burden or expense’ by using the standard discovery procedures to obtain information about ex parte interviews.” In addition, “Michigan law permits ex parte meetings of this nature, and a post-meeting notice condition is unrelated to dissemination of information in” such meetings. Further, defendant’s proposed QPO met § 164.512(e)(1)(v)’s requirements, so the addition of any notice condition was not required “to uphold the purpose of HIPAA.” Finally, plaintiff’s “purported justifications for the notice condition do not include any case-specific facts revealing a ‘specific fear’ of ‘annoyance, embarrassment, oppression, or undue burden or expense’ that would be ameliorated by a notice requirement.” Because she did not “establish good cause to impose the notice condition, the trial court abused its discretion” in imposing the “condition without offering any findings of fact to satisfy the ‘good cause’ standard in MCR 2.302(C).” While plaintiff offered “ample evidence that the inclusion of a notice requirement in QPOs is a common practice in the trial courts of this state, the standards prescribed in MCR 2.302(C) and refined by” the court’s case precedent left “no doubt that the common practice is unsustainable as a matter of law.” Vacated and remanded.
The Open Meetings Act (OMA); Closed sessions held to discuss written legal advice from counsel; MCL 15.268(1)(h); Freedom of Information Act (FOIA) exemption for information or records subject to the attorney-client privilege; MCL 15.243(1)(g); Detroit News, Inc v Independent Citizens Redistricting Comm’n; Requirement that the purpose for calling a closed session be entered into the meeting minutes; MCL 15.267(1); Mr Sunshine v Delta Coll Bd of Trs; Vermilya v Delta Coll Bd of Trs; Herald Co v Tax Tribunal
The court held that defendant-school board did not violate the OMA by going into closed session “for a permissible purpose under MCL 15.268(1)(h)—consideration of” a written legal opinion from its attorney. Further, there was “no genuine factual dispute that defendant’s meeting minutes sufficiently set forth the purpose of the closed sessions.” Thus, the court affirmed summary disposition for defendant. Plaintiff’s appellate arguments centered “around his general contention that defendant cannot avail itself of the common-law attorney-client privilege, and instead can only invoke a substantially more limited ‘government attorney-client privilege.’” But the court found no precedential authority in Michigan supporting this argument. It noted that it “has routinely accorded the common-law attorney-client privilege to governmental entities and officials.” While plaintiff relied on a footnote in the Supreme Court’s opinion in Detroit News, this was “merely dictum and does not establish that defendant does not enjoy the common-law attorney-client privilege or that it instead can only invoke a more limited attorney-client privilege.” Further, that case did not, as plaintiff asserted, establish “that the OMA’s open-meetings requirement prevails over the common-law attorney-client privilege. Here, unlike in Detroit News, the relevant open-meetings requirement does not derive from the Constitution, which prevails over any ‘repugnant’ application of the common-law attorney-client privilege. Nor does it require that all business of defendant, without exception, be conducted in open meetings. Instead, the open-meetings requirement at issue in this case derives from a statute, the OMA, which expressly allows for closed sessions.” MCL 15.268(1)(h) and the relevant FOIA exemption, MCL 15.243(1)(g), “do not indicate any intent by the Legislature to abrogate the common-law attorney-client privilege as to governmental entities and their open meetings; if anything, these provisions confirm that privilege’s applicability.” Plaintiff’s claim that defendant violated MCL 15.267(1), related to meeting minutes, also failed. The court rejected his contention that defendant was “required to provide factual details showing that the specific matter being discussed in the closed session was covered by the attorney-client privilege.” The court found its decision in Mr Sunshine was on point as to this issue.