Whistleblowers’ Protection Act (WPA); MCL 15.362; Retaliation; Causal connection; Temporal proximity; West v General Motors Corp; Circumstantial evidence; Debano-Griffin v Lake Cnty; Civil Rights Act (CRA); MCL 37.2701(a); Retaliation; Significant factor; El-Khalil v Oakwood Healthcare, Inc; Barrett v Kirtland Cmty Coll; Abandoned hostile work environment claim

The court held that plaintiff failed to establish causation for her WPA and CRA retaliation claims and abandoned her CRA hostile-work-environment claim by failing to support her protected-class theory. Plaintiff, a former community-center employee, alleged that after she reported a city council member’s racist comments, he retaliated by voting against her promotions and other community-center funding requests, and that her later suspension and termination were also retaliatory. The trial court granted summary disposition to defendant-city, ruling that plaintiff failed to establish causation on her WPA and CRA retaliation claims and could not establish a hostile work environment claim because she was not a member of a protected class. On appeal, the court held that the WPA claim failed because plaintiff relied mainly on temporal proximity, but she had to show “‘something more than merely a coincidence in time between protected activity and adverse employment action.’” It concluded the council member’s opposition to community-center requests did not reasonably support retaliation because the record showed that the center’s financial problems and heightened scrutiny predated plaintiff’s employment, making her theory “mere speculation.” The court also noted the two promotion votes failed three to three, the council member “lacked the authority” on his own to deny the promotion, and plaintiff offered no evidence that the other opposing council members were influenced by improper motive. As to her termination, the court held that no causal link existed because the recreation director who promoted plaintiff later suspended and terminated her after she failed to meet about financial irregularities, and it “would make little sense” for him to promote her if he was motivated to retaliate against her. The court next held that the CRA retaliation claim failed for the same lack of causation, because plaintiff had to show her protected activity was a “significant factor” in the adverse employment action. Finally, the court held that the hostile work environment claim was abandoned because plaintiff cited no authority that a person who engaged in protected activity is a protected class, and “‘where a party fails to cite any supporting legal authority for its position, the issue is deemed abandoned.’” Affirmed.

Action under 42 USC § 1983 alleging fabrication of evidence, malicious prosecution, & withholding of exculpatory evidence; Qualified immunity; Fourteenth Amendment fabrication-of-evidence claim; Clark v Abdallah; Fourth Amendment fabrication-of-evidence claim; Probable cause; Criminal sexual conduct (CSC); Breaking & entering (B & E); Brady v Maryland claim; Hughbanks v Hudson

[This appeal was from the ED-MI.] The court held that defendants-police officers were properly granted summary judgment based on qualified immunity as to plaintiff-Lackey’s § 1983 claims for fabricating evidence, malicious prosecution, and withholding exculpatory evidence. His convictions of CSC and B & E were vacated due to defects in the evidence. He then filed this action. The district court concluded that defendants-Hurley, Beard, Smith, and Burton were entitled to qualified immunity. On appeal, the court first addressed his Fourteenth Amendment fabrication-of-evidence claim. He asserted “that the officers fabricated two pieces of evidence that led to his convictions” – the physical description of the perpetrator given by the victim (S.S.) and her “description of the assailant’s ‘blue steel handgun.’” The court rejected both arguments. Hurley did not testify at trial, and Lackey could not show that his actions affected the verdict. As to the other officers, while there was “evidence that S.S. did not tell anyone the assailant was black,” there was no dispute that her mother (C) “told the officers that S.S. said” that, and C conveyed this “to the jury. So the jury heard S.S.’s description of the assailant’s race apart from the officers’ testimony.” As to the gun, Smith’s description of it “in his report had no impact on the jury’s decision to convict Lackey” given that Smith did not testify about the perpetrator having such a gun, Lackey was not charged with a gun crime, and “evidence of a gun was not necessary to convict him of the charged crimes.” As to his Fourth Amendment fabrication claim, the court held that there was probable cause for both the CSC and B & E charges. He “matched the description [S.S.] provided, he lived behind her house, and” a police tracking dog led an officer “to Lackey from S.S.’s backyard.” Further, the statements of S.S. and C, “the physical evidence corroborating them, and the evidence establishing probable cause that Lackey sexually assaulted S.S. suffice to establish probable cause to believe that” he committed B & E. Given the existence of probable cause, his malicious prosecution claim also failed. Finally, the court found his Brady violation claim meritless. The “officers armed Lackey with the information he says he needed; it was his job to characterize it, not theirs.” Affirmed.

Action under 42 USC § 1983 alleging fabrication of evidence, malicious prosecution, & withholding of exculpatory evidence; Qualified immunity; Fourteenth Amendment fabrication-of-evidence claim; Clark v Abdallah; Fourth Amendment fabrication-of-evidence claim; Probable cause; Criminal sexual conduct (CSC); Breaking & entering (B & E); Brady v Maryland claim; Hughbanks v Hudson

[This appeal was from the ED-MI.] The court held that defendants-police officers were properly granted summary judgment based on qualified immunity as to plaintiff-Lackey’s § 1983 claims for fabricating evidence, malicious prosecution, and withholding exculpatory evidence. His convictions of CSC and B & E were vacated due to defects in the evidence. He then filed this action. The district court concluded that defendants-Hurley, Beard, Smith, and Burton were entitled to qualified immunity. On appeal, the court first addressed his Fourteenth Amendment fabrication-of-evidence claim. He asserted “that the officers fabricated two pieces of evidence that led to his convictions” – the physical description of the perpetrator given by the victim (S.S.) and her “description of the assailant’s ‘blue steel handgun.’” The court rejected both arguments. Hurley did not testify at trial, and Lackey could not show that his actions affected the verdict. As to the other officers, while there was “evidence that S.S. did not tell anyone the assailant was black,” there was no dispute that her mother (C) “told the officers that S.S. said” that, and C conveyed this “to the jury. So the jury heard S.S.’s description of the assailant’s race apart from the officers’ testimony.” As to the gun, Smith’s description of it “in his report had no impact on the jury’s decision to convict Lackey” given that Smith did not testify about the perpetrator having such a gun, Lackey was not charged with a gun crime, and “evidence of a gun was not necessary to convict him of the charged crimes.” As to his Fourth Amendment fabrication claim, the court held that there was probable cause for both the CSC and B & E charges. He “matched the description [S.S.] provided, he lived behind her house, and” a police tracking dog led an officer “to Lackey from S.S.’s backyard.” Further, the statements of S.S. and C, “the physical evidence corroborating them, and the evidence establishing probable cause that Lackey sexually assaulted S.S. suffice to establish probable cause to believe that” he committed B & E. Given the existence of probable cause, his malicious prosecution claim also failed. Finally, the court found his Brady violation claim meritless. The “officers armed Lackey with the information he says he needed; it was his job to characterize it, not theirs.” Affirmed.

Jury composition; Prior juror service; MCL 600.1307a(1)(d); Waiver; People v King; People v Hubbard (After Remand); Actual prejudice; MCL 600.1354(1); Sufficiency of the evidence; Great weight of the evidence; CSC I; MCL 750.520b(1)(a); People v Lockett; Sexual penetration; MCL 750.520a(r); Victim under 13; Digital penetration; Fellatio; Cunnilingus; People v Fisher; Lesser included offense; MCL 750.520b(1)(b); People v Bearss; Upward departure sentence; Mandatory minimum; MCL 750.520b(2)(b); Proportionality; People v Steanhouse; People v Dixon-Bey; Mitigating factors; Right to trial; People v Gonzalez

The court held that: 1) defendant waived his jury-composition challenge, 2) two of his CSC I convictions were supported by sufficient evidence, but one was not, and 3) the trial court did not abuse its discretion by imposing upward-departure sentences. A jury convicted him of multiple CSC offenses arising from his sexual abuse of his daughter. The trial court imposed concurrent prison terms, including 30 to 570 months for each CSC I conviction involving sexual penetration when the victim was under 13. On appeal, the court first held that his jury-composition challenge was waived because defense counsel expressed satisfaction with the jury after being told some jurors had served the prior week, which “extinguished any error” and any appellate objection. It also found no showing that those jurors denied him an impartial jury because “jurors are presumed to be impartial” and he failed to show prejudice. The court next held that sufficient evidence supported the CSC I convictions based on digital penetration and fellatio because the jury could credit testimony and admissions placing those acts when the victim was in seventh grade and 12 years old. But the court held that the CSC I conviction based on cunnilingus was unsupported because both accounts placed that act in the victim’s eighth-grade year, and concluding otherwise would require “conjecture.” Thus, the court vacated that conviction and remanded for entry of a conviction under MCL 750.520b(1)(b). The court also held that the upward-departure sentences were proportionate because the guidelines did not adequately account for defendant’s “serial sexual abuse of his own daughter” and his “manipulation and deception.” Finally, it rejected his claim that he was punished for going to trial, concluding the trial court considered the impact on the victim and other proper sentencing factors rather than penalizing him for exercising a constitutional right. Affirmed in part, vacated in part, and remanded.

Ineffective assistance of counsel; Failure to investigate or speak to witnesses; Prejudice; Sentencing; 25-year mandatory minimum for CSC I involving an offender over 17 years old & a victim under 13; People v Benton; Sex Offenders Registration Act (SORA) requirement; Cruel or unusual punishment; People v Kardasz; Effect of defendant’s age (19); People v Taylor; People v Payne; Effect of the omission of the requirement from the judgment of sentence (JOS); Distinguishing People v Nunez; People v Rickerd (Unpub); Lifetime electronic monitoring (LEM) requirement; Unreasonable search claim; People v Hallak

The court held that trial counsel’s failure to investigate or speak to certain witnesses was deficient performance, but that it did not sufficiently prejudice defendant to undermine confidence in the trial’s outcome. It rejected his cruel or unusual punishment challenges to his 25-year mandatory minimum for his CSC I conviction and the lifetime SORA registration requirement. It also concluded that the omission of the SORA registration requirement from his JOS did “not necessitate his removal from the registry.” Finally, his cruel or unusual punishment and unreasonable search challenges to the lifetime LEM requirement also failed. He was 19 years old at the time of the crime; the victim was 12 years old. Defendant argued that his trial counsel’s performance was deficient due to the failure “to investigate the people who the victim said were at the house on the day of the offense: defendant’s mother, defendant’s father, the victim’s sister, defendant’s sister, and defendant’s sister’s boyfriend. Given that this case involved no physical evidence and rested on witness testimony, trial counsel’s failure to investigate or speak to these witnesses was deficient performance.” But the court determined that the “fact that these witnesses might have testified that they were not present on the night of the assault as the victim recalled they were, would not create a reasonable probability of a different outcome in light of the other evidence presented at trial. Finally, the victim’s father testified that he confronted defendant about the assault and that defendant admitted to it. None of the witnesses indicated at the Ginther hearing that they would have been able to provide testimony to impeach the victim’s father or to contradict the victim’s testimony about what occurred when she was alone with defendant.” As to the JOS omission issue, unlike in Nunez, defendant here “was informed of the SORA registration requirement before his sentencing and then registered.” Dealing with similar facts in Rickerd, the court found “Nunez did not require that the SORA requirement be voided because the trial court otherwise complied with” SORA. As it did there, the court remanded for the JOS to “be corrected to reflect the SORA registration requirement.” Affirmed and remanded.

Prosecutorial misconduct; Rebuttal argument; People v Isrow; Whether defendant was entitled to relief; People v Unger; Sufficient evidence to support two assault by strangulation convictions; “Strangulation or suffocation” (MCL 750.84(2)); Substitution of counsel motion; Good cause; People v McFall; Right to a speedy trial; Barker v Wingo; People v Williams; People v Smith

While the court saw merit in one of defendant’s rebuttal argument prosecutorial misconduct claims, it concluded that he failed to show he was entitled to relief. It also held that the evidence was sufficient to support both of his assault by strangulation convictions, and that the trial court did not abuse its discretion in denying his motion for substitution of counsel. Finally, it rejected his claim that his right to a speedy trial was violated. Thus, it affirmed his AWIGBH, third-offense domestic violence, unlawful imprisonment, and assault by strangulation convictions. As to his claims that the prosecutor “impermissibly bolstered the victim’s credibility and appealed to the jury’s sympathies by repeatedly opining on the veracity of” her memory of the incident, the court found it was clear from the record that the challenged statements “were in direct response to defendant’s” closing argument assertions that her testimony was not worthy of belief due to an inability to remember some things that happened before the incident. But the court saw “merit in defendant’s challenge to certain comments” the prosecutor made during rebuttal argument about “her own traumatic experiences.” Nonetheless, (1) they “were made in response to defense counsel’s arguments[,]” (2) the trial court “instructed the jury that the attorneys’ statements and arguments were not to be considered as evidence and that it could not render a decision based on bias or sympathy,” and (3) ample evidence of defendant’s guilt was presented at trial. This included testimony from the victim and the responding officer, photos of the victim’s injuries, and video footage showing him yelling at and physically assaulting her. The court also held that there was sufficient evidence for a rational jury to “have found beyond a reasonable doubt that defendant intentionally impeded [her] breathing or blood flow by applying pressure to her throat or neck twice.” As to his motion to appoint new counsel for sentencing, he offered no argument to establish good cause. As to his speedy trial claim, the reasons for the delay did not support it, and he failed to show that “he suffered any prejudice to his defense[.]”

Sentence modification; 18 USC § 3582(c)(2); Sentencing Commission’s retroactive amendment to how criminal-history points are calculated (Amendment 821); Whether defendant’s sentence was based on her Guidelines range; Statutory mandatory minimums; Whether Amendment 821 lowered her range; USSG § 1B1.10(c); Effect of a prior Fed R Crim P 35(b) reduction due to substantial assistance; § 1B1.10 cmt n 4(B); Distinguishing Koons v United States; Whether § 1B1.10(c) should be invalidated based on Koons

The court held that defendant-Hilton met at least the initial requirement for a sentence modification under § 3582(c)(2) because her sentence was based on her Guidelines range and that range was subsequently lowered by Amendment 821. Thus, it vacated the district court’s order denying her initial motion for a reduced sentence under the statute, and remanded. She pled guilty to possession with intent to distribute five grams or more of meth and of a firearm in furtherance of a drug trafficking offense. Criminal history points produced “a criminal-history category of IV. Her offense level was 21, so the initial Guidelines range was 57 to 71 months.” But both convictions carried 60-month mandatory minimums. The district court sentenced her to 120 months. The government later moved to reduce her sentence under Rule 35(b) due to her substantial assistance in another case. It was reduced to 100 months. After Amendment 821 was issued, she moved for a further reduction. The district court ruled that relief was unavailable per § 3582(c)(2) because her original sentence was based on the statutory minimums, not a Guidelines range. On appeal, the court noted the district court properly calculated the 120 to 131-month Guidelines range for her original sentence and then sentenced her within it. As to her current sentence, the statements of the government and the district court related to the Rule 35(b) reduction showed that both understood the starting point for it “to be Hilton’s original Guidelines range. And when a ‘judge uses the sentencing range as the beginning point to explain the decision to deviate from it,’ § 3582(c)(2)’s ‘based on’ requirement is satisfied.” As to whether Amendment 821 “lowered” her Guidelines range, under § 1B1.10(c), “when a defendant has previously received a Rule 35(b) reduction, any mandatory minimums fall out of the picture when the sentencing range is recalculated.” This meant that “Hilton’s new, post-amendment range” was 106 to 117 months. The court rejected the government’s argument that her “sentence was based on her statutory mandatory minimums and Rule 35(b) motion, not a Guidelines” range, and its reliance on Koons, which was “materially distinguishable[.]” It also declined the “invitation to be the first circuit to invalidate § 1B1.10(c) on Koons grounds.”

Initiatory petition to amend a city charter; The Home Rule City Act; MCL 117.25; Mandamus; Whether defendant-city clerk had a legal duty to reject petitions with supplemental signatures; Whether the proposed amendment included more than one related proposition; MCL 117.21(3)

The court held that defendant-City Clerk did not have a clear legal duty to reject the supplemental signatures presented in support of an initiatory petition to amend the city charter. Further, it concluded that the proposed amendment was confined to one subject. Thus, it affirmed the trial court’s denial of plaintiff-AAREC’s request for a writ of mandamus and its grant of summary disposition to defendants. AAREC is a ballot committee formed to oppose the initiatory petition, which was put forward by another ballot committee. The Clerk certified the initiatory petition for placement on the November ballot. AAREC sought a writ of mandamus ordering the Clerk to disregard supplemental signatures that were filed after the petition was initially filed. On appeal, the court reviewed a section of the Home Rule City Act addressing initiatory petitions, MCL 117.25. It noted that the statute “is silent on whether a clerk may accept for filing and canvassing, or must reject, any supplemental signatures that are submitted. Although § 25 does not contemplate or expressly allow the filing and canvassing of supplemental signatures, § 25 also does not expressly prohibit a clerk from accepting and canvassing supplemental signatures.” Thus, AAREC failed to point “to any source of law that prescribes and defines the duty to reject supplemental signatures nor demonstrated its clear legal right to performance of this specific duty.” AAREC also sought a declaratory judgment that, even if there were sufficient signatures, “the proposed amendment did not qualify for placement on the ballot” because it concerned more than one subject. It would add two sections to the city charter, §§ 15.11(a) and 15.11(b). Section 15.11(a) provides for an ordinance establishing “‘a municipal electric utility to be governed by the Ann Arbor Municipal Electric Utility Board described in’” § 15.11(b), which in turn provides that the board will have control of the utility. The court found that the § 15.11(b) subsections cited by AAREC were “fundamentally related to the board” and that the amendment was confined to the one subject of “the establishment and administration or governance of a municipal electric utility.”

Whistleblowers’ Protection Act (WPA); MCL 15.362; Retaliation; Causal connection; Temporal proximity; West v General Motors Corp; Circumstantial evidence; Debano-Griffin v Lake Cnty; Civil Rights Act (CRA); MCL 37.2701(a); Retaliation; Significant factor; El-Khalil v Oakwood Healthcare, Inc; Barrett v Kirtland Cmty Coll; Abandoned hostile work environment claim

The court held that plaintiff failed to establish causation for her WPA and CRA retaliation claims and abandoned her CRA hostile-work-environment claim by failing to support her protected-class theory. Plaintiff, a former community-center employee, alleged that after she reported a city council member’s racist comments, he retaliated by voting against her promotions and other community-center funding requests, and that her later suspension and termination were also retaliatory. The trial court granted summary disposition to defendant-city, ruling that plaintiff failed to establish causation on her WPA and CRA retaliation claims and could not establish a hostile work environment claim because she was not a member of a protected class. On appeal, the court held that the WPA claim failed because plaintiff relied mainly on temporal proximity, but she had to show “‘something more than merely a coincidence in time between protected activity and adverse employment action.’” It concluded the council member’s opposition to community-center requests did not reasonably support retaliation because the record showed that the center’s financial problems and heightened scrutiny predated plaintiff’s employment, making her theory “mere speculation.” The court also noted the two promotion votes failed three to three, the council member “lacked the authority” on his own to deny the promotion, and plaintiff offered no evidence that the other opposing council members were influenced by improper motive. As to her termination, the court held that no causal link existed because the recreation director who promoted plaintiff later suspended and terminated her after she failed to meet about financial irregularities, and it “would make little sense” for him to promote her if he was motivated to retaliate against her. The court next held that the CRA retaliation claim failed for the same lack of causation, because plaintiff had to show her protected activity was a “significant factor” in the adverse employment action. Finally, the court held that the hostile work environment claim was abandoned because plaintiff cited no authority that a person who engaged in protected activity is a protected class, and “‘where a party fails to cite any supporting legal authority for its position, the issue is deemed abandoned.’” Affirmed.

Initiatory petition to amend a city charter; The Home Rule City Act; MCL 117.25; Mandamus; Whether defendant-city clerk had a legal duty to reject petitions with supplemental signatures; Whether the proposed amendment included more than one related proposition; MCL 117.21(3)

The court held that defendant-City Clerk did not have a clear legal duty to reject the supplemental signatures presented in support of an initiatory petition to amend the city charter. Further, it concluded that the proposed amendment was confined to one subject. Thus, it affirmed the trial court’s denial of plaintiff-AAREC’s request for a writ of mandamus and its grant of summary disposition to defendants. AAREC is a ballot committee formed to oppose the initiatory petition, which was put forward by another ballot committee. The Clerk certified the initiatory petition for placement on the November ballot. AAREC sought a writ of mandamus ordering the Clerk to disregard supplemental signatures that were filed after the petition was initially filed. On appeal, the court reviewed a section of the Home Rule City Act addressing initiatory petitions, MCL 117.25. It noted that the statute “is silent on whether a clerk may accept for filing and canvassing, or must reject, any supplemental signatures that are submitted. Although § 25 does not contemplate or expressly allow the filing and canvassing of supplemental signatures, § 25 also does not expressly prohibit a clerk from accepting and canvassing supplemental signatures.” Thus, AAREC failed to point “to any source of law that prescribes and defines the duty to reject supplemental signatures nor demonstrated its clear legal right to performance of this specific duty.” AAREC also sought a declaratory judgment that, even if there were sufficient signatures, “the proposed amendment did not qualify for placement on the ballot” because it concerned more than one subject. It would add two sections to the city charter, §§ 15.11(a) and 15.11(b). Section 15.11(a) provides for an ordinance establishing “‘a municipal electric utility to be governed by the Ann Arbor Municipal Electric Utility Board described in’” § 15.11(b), which in turn provides that the board will have control of the utility. The court found that the § 15.11(b) subsections cited by AAREC were “fundamentally related to the board” and that the amendment was confined to the one subject of “the establishment and administration or governance of a municipal electric utility.”