42 USC § 1983; First Amendment; Fourteenth Amendment equal protection; Article III standing; Injury in fact; Lujan v Defenders of Wildlife; Causation; Reputational harm; Turaani v Wray; Future injury; Murthy v Missouri; Economic harm; Third-party donor actions; Diversion of resources; Forfeiture; Southern Poverty Law Center (SPLC)

[This appeal was from the WD-MI.] The court held that plaintiff failed to establish Article III standing because it did not produce evidence that defendants caused, or would cause, a cognizable injury. Plaintiff sued Michigan’s Attorney General and the state’s former civil rights director under § 1983 after a state press release cited the SPLC’s Hate Map, which listed plaintiff as a hate group. The district court initially found standing adequately pled, but after discovery granted summary judgment to defendants on standing grounds. On appeal, the court first rejected plaintiff’s reputational-harm theory, explaining that plaintiff had “to show ‘reputational harms flowing’ from defendants’ press release, not the SPLC designation” generally. The press release did not name plaintiff, news articles did not connect any harm to the release, and the Detroit News inquiry showed at most that a reporter read the release and checked the Hate Map. The court also held that plaintiff failed to show imminent future reputational injury because the release had been removed from the state website, defendants had undercut any alleged state “imprimatur” by distancing themselves from SPLC reliance, and any future FOIA access was speculative. It next held that plaintiff failed to establish economic injury because donor concerns did not show lost donations, the AmazonSmile denial predated the release, de-banking fears were not “certainly impending,” and proposed donor data failed to show present or future harm. Finally, the court held that plaintiff forfeited its diversion-of-resources theory and, in any event, offered no “concrete details” showing future resource diversion. Affirmed.

Petition for rehearing en banc; Title III of the Civil Rights Act of 1960; Election-record retention; National Voter Registration Act; Help America Vote Act; Michigan’s “qualified voter file” (MCL 168.509m(2)(b) & 168.509o(1)); Whether Michigan’s qualified voter file is subject to Title III; Whether the government complied with 52 USC § 20703’s requirements

[This appeal was from the WD-MI.] In an order on a petition for rehearing en banc, the court held that the petition’s issues had been fully considered by the original panel (see eJournal # 86041 in the 6/26/26 edition), and because less than a majority of active judges voted to rehear the case en banc, the petition was denied.

42 USC § 1983; First Amendment; Fourteenth Amendment equal protection; Article III standing; Injury in fact; Lujan v Defenders of Wildlife; Causation; Reputational harm; Turaani v Wray; Future injury; Murthy v Missouri; Economic harm; Third-party donor actions; Diversion of resources; Forfeiture; Southern Poverty Law Center (SPLC)

[This appeal was from the WD-MI.] The court held that plaintiff failed to establish Article III standing because it did not produce evidence that defendants caused, or would cause, a cognizable injury. Plaintiff sued Michigan’s Attorney General and the state’s former civil rights director under § 1983 after a state press release cited the SPLC’s Hate Map, which listed plaintiff as a hate group. The district court initially found standing adequately pled, but after discovery granted summary judgment to defendants on standing grounds. On appeal, the court first rejected plaintiff’s reputational-harm theory, explaining that plaintiff had “to show ‘reputational harms flowing’ from defendants’ press release, not the SPLC designation” generally. The press release did not name plaintiff, news articles did not connect any harm to the release, and the Detroit News inquiry showed at most that a reporter read the release and checked the Hate Map. The court also held that plaintiff failed to show imminent future reputational injury because the release had been removed from the state website, defendants had undercut any alleged state “imprimatur” by distancing themselves from SPLC reliance, and any future FOIA access was speculative. It next held that plaintiff failed to establish economic injury because donor concerns did not show lost donations, the AmazonSmile denial predated the release, de-banking fears were not “certainly impending,” and proposed donor data failed to show present or future harm. Finally, the court held that plaintiff forfeited its diversion-of-resources theory and, in any event, offered no “concrete details” showing future resource diversion. Affirmed.

Sufficiency of the evidence for a felony-firearm conviction; Possession during the commission of the underlying offense; Constructive possession; Departure sentences; People v Steanhouse; Correction of the judgment of sentence (JOS)

The court held that there was sufficient evidence that defendant constructively possessed a gun during the commission of third-degree fleeing and eluding to support his felony-firearm conviction related to that offense. It also held that his departure sentences for his fleeing-and-eluding and felonious-assault convictions were within the range of reasonable and principled outcomes. Thus, it affirmed his convictions and sentences. But it remanded for the ministerial correction of his JOS to remove a mistaken additional count. The court concluded that, assuming without deciding that his actual possession of the gun “shortly after exiting the vehicle was not enough to establish that he possessed [it] during the commission of third-degree fleeing and eluding,” sufficient circumstantial evidence existed “for a rational trier of fact to find beyond a reasonable doubt that defendant constructively possessed [it] while driving the vehicle, i.e., while committing third-degree fleeing and eluding.” Although the prosecution offered “no direct evidence that he possessed the gun while driving the vehicle[,]” the evidence established that he actually possessed it “almost immediately after exiting the vehicle. From this evidence, a rational trier of fact could infer that, while defendant was driving the vehicle, he knew where the firearm was, had reasonable access to it, and had control over it. That would logically explain why [he] almost immediately possessed [it] upon exiting the vehicle.” As to sentencing, the trial court imposed an 11-month departure sentence for fleeing and eluding and a 9-month departure for felonious assault. It “found it significant that defendant continued engaging in criminality despite having support from his family, and that he continued committing similar crimes despite getting caught in the past.” In addition, it “found it highly significant that [he] had not shown any growth from his previous run-ins with the law[.]” Further, it “expressly recognized the extent that those sentences departed from the” guidelines. The court determined that the sentences accurately reflected “the seriousness of the offense and defendant’s background.”

Sufficiency of evidence; CSC I; MCL 750.520b(1)(a); Sexual penetration; MCL 750.520a(r); People v Bailey; Great weight of the evidence; People v Lemmon; Other-acts evidence; MCL 768.27a; MRE 403; People v Watkins; Prosecutorial error; Appeal to sympathy; People v Dalessandro; Vouching; People v Bahoda; Ineffective assistance of counsel; Trial strategy; People v Davis; Sentencing; OV 3; MCL 777.33(1)(e); OV 8; MCL 777.38(1)(a); People v Barrera; OV 9; MCL 777.39(1)(c); Correction of the sentencing investigation report (SIR); People v Baskerville

The court held that sufficient evidence supported defendant’s CSC I convictions, the other-acts testimony was admissible, his prosecutorial-error and ineffective-assistance claims failed, and sentencing-scoring errors did not require resentencing. He was convicted of multiple CSC I counts involving AM, who was under 13. The trial court admitted another child’s (JK) other-acts testimony under MCL 768.27a and assessed challenged OVs at sentencing. On appeal, the court first held that the evidence was sufficient because AM testified she felt defendant penetrate her anus and place his penis in her mouth, JK corroborated the blindfold assault, and “a complainant’s testimony regarding a defendant’s commission of sexual acts is sufficient evidence to support a” CSC I conviction. It rejected his great-weight challenge because any impeachment of AM’s testimony did not deprive it of all probative value, and JK’s testimony supplied “circumstantial corroboration.” The court next held that JK’s testimony was admissible under MCL 768.27a and MRE 403 because the assaults involved the same ages, same time period, and “same type of alleged behavior as to the sexual act.” It rejected defendant’s prosecutorial-error claims, reasoning that the challenged sympathy comment was a single statement made in the context of asking the jury to decide the case “based on the proofs presented,” and the prosecutor did not vouch because the comments about childhood memory were reasonable inferences from the evidence. The court also held that defense counsel’s questioning of an officer reflected a reasonable strategy to attack AM’s credibility and the prosecution’s motives, and counsel was not ineffective for failing to make futile objections. Finally, the court held that OV 8 was properly scored because defendant moved AM and JK “away from the presence or observation of others.” While OVs 3 and 9 were scored incorrectly in part, the scoring errors did not change the guidelines range. Affirmed and remanded for ministerial correction of the SIR.

Petition for rehearing en banc; Title III of the Civil Rights Act of 1960; Election-record retention; National Voter Registration Act; Help America Vote Act; Michigan’s “qualified voter file” (MCL 168.509m(2)(b) & 168.509o(1)); Whether Michigan’s qualified voter file is subject to Title III; Whether the government complied with 52 USC § 20703’s requirements

[This appeal was from the WD-MI.] In an order on a petition for rehearing en banc, the court held that the petition’s issues had been fully considered by the original panel (see eJournal # 86041 in the 6/26/26 edition), and because less than a majority of active judges voted to rehear the case en banc, the petition was denied.

Personal protection insurance (PIP) benefits; Michigan Assigned Claims Plan (MACP) benefits payable limit; MCL 500.3172(7)(a); Settlement enforcement; MCR 2.507(G); Dabish v Gayar; Contract formation; Meeting of minds; Kamalnath v Mercy Mem’l Hosp Corp; Offer & acceptance; Kloian v Domino’s Pizza LLC; Conditional acceptance; Harper Bldg Co v Kaplan; Settlement negotiation e-mails; Centers for Medicare & Medicaid Services (CMS)

The court held that the trial court did not abuse its discretion by denying plaintiff’s motion to enforce a purported settlement because the parties never reached a binding settlement agreement. Plaintiff was injured in a motor vehicle accident and sought PIP benefits from defendant-insurer after the MACP assigned his claim. The insurer had paid some benefits, leaving $199,145 in potential exposure under the statutory cap. During settlement discussions, plaintiff’s counsel described the proposed agreement as a “contingent/tentative settlement” because of a “massive Medicare lien,” the parties exchanged draft releases, and no release or stipulated order was signed. After CMS sought payment from the insurer, the insurer revoked all settlement offers, and the trial court denied plaintiff’s motion to enforce. On appeal, the court held that plaintiff failed to show a meeting of the minds because his conditional acceptance was not absolute and unconditional. The proposed settlement would become binding only upon Medicare’s approval of the lien reduction, but the evidence of that approval was dated after the insurer “unequivocally withdrew its offer.” The court also held that the e-mails did not satisfy MCR 2.507(G) because the ongoing edits to the release showed the parties had not memorialized their agreement “in a form that indisputably reflects a final agreement of the parties.” Counsel never responded to the final email asking whether the release was acceptable and requesting a signature. Affirmed.

Applicability of MCL 500.3107c(3); The law-of-the-case doctrine; Effect of the court’s decision in Downer v USA Underwriters (Unpub); Distinguishing Northland Radiology, Inc v Allstate Fire & Cas Ins Co; Whether the rebuttable presumption was established; Whether an affidavit was legally deficient; MCR 2.119(B)(1); VHS of Michigan, Inc., d/b/as Detroit Medical Center (DMC)

The court held that its conclusion in Downer that MCL 500.3107c(3)’s rebuttable presumption applied governed here under the law-of-the-case doctrine. It rejected plaintiff-DMC’s reliance on Northland Radiology, and its contention that defendant-USA Underwriters’ affidavit failed to establish the presumption because it was legally deficient under MCR 2.119(B)(1). Thus, the court affirmed the trial court’s order granting USA summary disposition in part, and its opinion and order denying DMC’s motion for reconsideration. This case arose out of the same relevant facts as Downer. DMC argued on appeal here that MCL 500.3107c(3)’s rebuttable presumption did not apply “because the statute does not address circumstances in which a selection of coverage is ineffective due to the insured’s statutory ineligibility to make” it. But the court determined that it previously addressed DMC’s arguments relating to the statute’s applicability, and the facts remained “materially the same as in the previous appeal.” It expressly held in Downer “that MCL 500.3107c(3) applied and remanded the case for further proceedings to determine whether the rebuttable presumption had been sufficiently established and, if so, whether it had been rebutted.” Northland Radiology and Downer addressed “distinct statutory issues.” The rebuttable presumption under MCL 500.3107c(3) “precludes the automatic application of the unlimited PIP benefits otherwise available under MCL 500.3107c(1)(d) when an applicant or named insured, such as Downer, makes an ineffective selection.” As to the affidavit provided by a USA employee (T), she explained in it that she was a USA underwriting specialist “and had been assigned to review Downer’s application and payment history.” Her statements as to these “matters logically flowed from the review she was assigned to conduct, making it apparent that the affidavit was based on her personal knowledge. Moreover, [T] affirmed under the penalty of perjury that the statements contained in the affidavit were true, further supporting the reliability of her assertions.” The affidavit also “cited and attached several supporting documents substantiating” her assertions.

Exclusion of evidence of the parties’ contract negotiations; Effect of an integration clause; Parol evidence; Exclusion of a witness based on untimely filed witness lists; MCR 2.401(I)(1) & (2); Smith v Beaumont Health; “Good cause”; Bay Area Transportation Authority (BATA)

In an interlocutory appeal, the court held that the trial court properly excluded evidence of the parties’ contract negotiations based on the contract’s integration clause. But it held that the trial court erred in denying plaintiff-BATA’s motion to amend its witness list to add a witness despite untimely amended witness lists. The court noted that when parties include an integration clause in their written contract, “it is conclusive, and parol evidence is not admissible to show that the agreement is not integrated unless the agreement is obviously incomplete on its face or unless fraud invalidates the integration clause.” There was no allegation of fraud here that would invalidate the contract “generally or the integration clause specifically. Rather, the parties dispute what the language of the agreement means.” Given that there was “no suggestion that the integration clause itself is void on the basis of fraud or any other basis, the integration clause prevents the admission of parol evidence to contradict the terms of the agreement.” As to the exclusion of the witness (N), after considering Smith, the court noted there did not appear to be a “dispute that BATA’s amended witness lists were not timely filed. However, unlike an expert witness added shortly before trial and after experts have been deposed, there is no suggestion in this case of any prejudice caused to” defendant-Grand Traverse County “by BATA’s delay. The proposed witness here is Grand Traverse’s own attorney whose affidavit” it submitted as support of its summary disposition motion. The record did “not suggest that Grand Traverse will need to depose [N], investigate his position, nor rebut his anticipated testimony with that of other witnesses. On the contrary, [it] relied upon [N] as an affiant and thus is well-acquainted with [him] and his likely testimony in this case.” The court noted that he may not offer inadmissible testimony about the negotiations and prior agreement drafts, and “that an attorney may assert attorney-client privilege when applicable.” Affirmed in part and reversed in part.

Personal protection insurance (PIP) benefits; Michigan Assigned Claims Plan (MACP) benefits payable limit; MCL 500.3172(7)(a); Settlement enforcement; MCR 2.507(G); Dabish v Gayar; Contract formation; Meeting of minds; Kamalnath v Mercy Mem’l Hosp Corp; Offer & acceptance; Kloian v Domino’s Pizza LLC; Conditional acceptance; Harper Bldg Co v Kaplan; Settlement negotiation e-mails; Centers for Medicare & Medicaid Services (CMS)

The court held that the trial court did not abuse its discretion by denying plaintiff’s motion to enforce a purported settlement because the parties never reached a binding settlement agreement. Plaintiff was injured in a motor vehicle accident and sought PIP benefits from defendant-insurer after the MACP assigned his claim. The insurer had paid some benefits, leaving $199,145 in potential exposure under the statutory cap. During settlement discussions, plaintiff’s counsel described the proposed agreement as a “contingent/tentative settlement” because of a “massive Medicare lien,” the parties exchanged draft releases, and no release or stipulated order was signed. After CMS sought payment from the insurer, the insurer revoked all settlement offers, and the trial court denied plaintiff’s motion to enforce. On appeal, the court held that plaintiff failed to show a meeting of the minds because his conditional acceptance was not absolute and unconditional. The proposed settlement would become binding only upon Medicare’s approval of the lien reduction, but the evidence of that approval was dated after the insurer “unequivocally withdrew its offer.” The court also held that the e-mails did not satisfy MCR 2.507(G) because the ongoing edits to the release showed the parties had not memorialized their agreement “in a form that indisputably reflects a final agreement of the parties.” Counsel never responded to the final email asking whether the release was acceptable and requesting a signature. Affirmed.

Applicability of MCL 500.3107c(3); The law-of-the-case doctrine; Effect of the court’s decision in Downer v USA Underwriters (Unpub); Distinguishing Northland Radiology, Inc v Allstate Fire & Cas Ins Co; Whether the rebuttable presumption was established; Whether an affidavit was legally deficient; MCR 2.119(B)(1); VHS of Michigan, Inc., d/b/as Detroit Medical Center (DMC)

The court held that its conclusion in Downer that MCL 500.3107c(3)’s rebuttable presumption applied governed here under the law-of-the-case doctrine. It rejected plaintiff-DMC’s reliance on Northland Radiology, and its contention that defendant-USA Underwriters’ affidavit failed to establish the presumption because it was legally deficient under MCR 2.119(B)(1). Thus, the court affirmed the trial court’s order granting USA summary disposition in part, and its opinion and order denying DMC’s motion for reconsideration. This case arose out of the same relevant facts as Downer. DMC argued on appeal here that MCL 500.3107c(3)’s rebuttable presumption did not apply “because the statute does not address circumstances in which a selection of coverage is ineffective due to the insured’s statutory ineligibility to make” it. But the court determined that it previously addressed DMC’s arguments relating to the statute’s applicability, and the facts remained “materially the same as in the previous appeal.” It expressly held in Downer “that MCL 500.3107c(3) applied and remanded the case for further proceedings to determine whether the rebuttable presumption had been sufficiently established and, if so, whether it had been rebutted.” Northland Radiology and Downer addressed “distinct statutory issues.” The rebuttable presumption under MCL 500.3107c(3) “precludes the automatic application of the unlimited PIP benefits otherwise available under MCL 500.3107c(1)(d) when an applicant or named insured, such as Downer, makes an ineffective selection.” As to the affidavit provided by a USA employee (T), she explained in it that she was a USA underwriting specialist “and had been assigned to review Downer’s application and payment history.” Her statements as to these “matters logically flowed from the review she was assigned to conduct, making it apparent that the affidavit was based on her personal knowledge. Moreover, [T] affirmed under the penalty of perjury that the statements contained in the affidavit were true, further supporting the reliability of her assertions.” The affidavit also “cited and attached several supporting documents substantiating” her assertions.

Children’s best interests; MCL 712A.19b(5); In re White; Parent-agency treatment plan (PATP); Guardianship; Another planned permanent living arrangement (APPLA); MCL 712A.19c; In re TK

The court held that the trial court did not err in finding termination was in the children’s best interests despite respondent-father’s arguments about guardianship, APPLA, and needing more time for services. DHHS petitioned to remove the children based on abuse, neglect, domestic violence, and the father’s abandonment and failure to support or protect them. The trial court assumed jurisdiction, approved a PATP for the father, and later terminated his rights. On appeal, he challenged the trial court’s best interests finding. The court held that the best-interest finding was supported by the father’s absence from the case, complete failure to participate in services, failure to attend 68 visitation opportunities, and the children’s statements that they did not “want anything to do with [their] dad” and “didn’t care” whether his rights were terminated. It rejected his argument that guardianship or APPLA was preferable because those permanency plan goals did not foreclose termination. The trial court found termination gave the children the “best chance at finality, permanency, and success in pursuing their goals.” The court also rejected his request for more time because DHHS repeatedly tried to locate and contact him, yet he remained absent and made “no progress on his PATP.” Finally, the court concluded the record supported risk of harm if the children were returned because he had failed to protect them, lacked suitable housing, and had prior protective-services involvement. Affirmed.