First Amendment retaliation claim under 42 USC § 1983; “Protected speech”; A “matter of public concern”; Whether plaintiff’s Michigan Occupational Safety & Health Administration (MiOSHA) complaint about required Personal Protection Equipment (PPE) involved a matter of public concern; Whether plaintiff’s speech at a meeting involved a matter of public concern

[This appeal was from the ED-MI.] The court affirmed the district court’s grant of summary judgment to defendants-University of Michigan Dental School administrators on plaintiff-Stanalajczo’s § 1983 First Amendment retaliation claim, holding that he failed to show his speech about required clinic PPE was on a matter of public concern. During the COVID-19 crisis, Stanalajczo, an adjunct dental professor at the School, claimed that the extra PPE gowns and equipment, combined with air conditioning issues, led to overheating. Defendant-Perry, the School’s safety director, sent an email with suggestions to avoid overheating. “Stanalajczo decided to ‘reply all’ to the roughly 1,000 recipients of the email and express his concerns with the policy.” He then filed a health complaint about the PPE to MiOSHA, which found the “Dental School’s response satisfactory” and declined to conduct an inspection. The School later conducted a town hall meeting for faculty, staff, and students to discuss the PPE issue. After the meeting, “Perry submitted an internal complaint about Stanalajczo’s behavior at the meeting and in his emails “ Defendant-Johnson conducted an investigation into the complaint, and the School later fired Stanalajczo after he refused to view and complete tasks related to three educational videos regarding workplace behavior. He then filed this action. On appeal, the court considered the elements of a First Amendment retaliation claim. It focused on whether he had engaged in constitutionally protected speech. This required him to have spoken on a matter of public concern, i.e. speech that “relates to issues of ‘political, social, or other concern to the community’ and is of ‘public import.’” The court held that he had not. It noted an employee’s “concerns that ‘management has acted incompetently’ or complaints about ‘internal personnel disputes’ are usually not protected.” Speech that merely touches “on areas of general public interest” is insufficient. Stanalajczo’s MiOSHA complaint expressed concerns about “a ‘personal interest’ in workplace conditions for Stanalajczo and those working with him[,]” and did not involve “an issue of ‘political, social, or other concern to the community.’” This analysis also held true as to his statements at the open meeting. “As unfortunate and frustrating as the conditions might have been for those who worked in the clinic, a dispute about discomfort caused by required protective gear in a clinical setting does not rise to the level of public concern. So it is not protected by the First Amendment.”

First Amendment retaliation claim under 42 USC § 1983; “Protected speech”; A “matter of public concern”; Whether plaintiff’s Michigan Occupational Safety & Health Administration (MiOSHA) complaint about required Personal Protection Equipment (PPE) involved a matter of public concern; Whether plaintiff’s speech at a meeting involved a matter of public concern

[This appeal was from the ED-MI.] The court affirmed the district court’s grant of summary judgment to defendants-University of Michigan Dental School administrators on plaintiff-Stanalajczo’s § 1983 First Amendment retaliation claim, holding that he failed to show his speech about required clinic PPE was on a matter of public concern. During the COVID-19 crisis, Stanalajczo, an adjunct dental professor at the School, claimed that the extra PPE gowns and equipment, combined with air conditioning issues, led to overheating. Defendant-Perry, the School’s safety director, sent an email with suggestions to avoid overheating. “Stanalajczo decided to ‘reply all’ to the roughly 1,000 recipients of the email and express his concerns with the policy.” He then filed a health complaint about the PPE to MiOSHA, which found the “Dental School’s response satisfactory” and declined to conduct an inspection. The School later conducted a town hall meeting for faculty, staff, and students to discuss the PPE issue. After the meeting, “Perry submitted an internal complaint about Stanalajczo’s behavior at the meeting and in his emails “ Defendant-Johnson conducted an investigation into the complaint, and the School later fired Stanalajczo after he refused to view and complete tasks related to three educational videos regarding workplace behavior. He then filed this action. On appeal, the court considered the elements of a First Amendment retaliation claim. It focused on whether he had engaged in constitutionally protected speech. This required him to have spoken on a matter of public concern, i.e. speech that “relates to issues of ‘political, social, or other concern to the community’ and is of ‘public import.’” The court held that he had not. It noted an employee’s “concerns that ‘management has acted incompetently’ or complaints about ‘internal personnel disputes’ are usually not protected.” Speech that merely touches “on areas of general public interest” is insufficient. Stanalajczo’s MiOSHA complaint expressed concerns about “a ‘personal interest’ in workplace conditions for Stanalajczo and those working with him[,]” and did not involve “an issue of ‘political, social, or other concern to the community.’” This analysis also held true as to his statements at the open meeting. “As unfortunate and frustrating as the conditions might have been for those who worked in the clinic, a dispute about discomfort caused by required protective gear in a clinical setting does not rise to the level of public concern. So it is not protected by the First Amendment.”

Breach of contract; Enforceability of a noncompete agreement (NCA); MCL 445.774a(1); Coates v Bastian Bros, Inc; Compliance with a remand order; Motion to reopen discovery; Scope of the remand order

The court concluded that the trial court failed to comply with a prior remand order when it did not undertake a reasonableness analysis of the NCA at issue. But it held that the trial court did not abuse its discretion in “denying plaintiff’s motion to reopen discovery to pursue an issue not within the scope of” the remand order. In its prior opinion in the case, the court stated the trial court erred in “failing to apply a reasonableness analysis to the noncompete clause in light of [defendant-]Vanderbush’s challenge to the clause,” and it instructed “the trial court on remand to ‘consider whether plaintiff has met its burden of showing that the noncompete clause is enforceable, and, if so, to what extent under the circumstances[.]’” The trial court on remand found that plaintiff failed to meet “its burden of showing the validity of the noncompete clause because plaintiff failed to respond to Vanderbush’s assertion that the NCA was unenforceable. The trial court concluded that plaintiff conceded that the noncompete clause was unenforceable by failing to respond to Vanderbush’s challenge to the NCA’s enforceability.” But it failed to “undertake on remand an analysis of the reasonableness of the noncompete agreement, the absence of which” the court identified as an error in its original ruling. This failure overlooked the task for which the court remanded. As to plaintiff’s request to reopen discovery, it sought to do so “to enable it to raise additional allegations that Vanderbush violated the NCA” and this was an issue outside the scope of the remand order. The court vacated the trial court’s order granting Vanderbush summary disposition on the breach of contract claim, and remanded.

Sufficient evidence for a meth possession conviction; MCL 333.7403(2)(b)(i); Constructive possession; People v Hardiman; The prosecution’s burden; People v Davenport

Holding that there was sufficient evidence to establish defendant’s constructive possession, the court affirmed his meth possession conviction. It noted that he “owned the vehicle containing those unlawful substances discovered within his arm’s reach, and ‘[c]lose proximity to contraband in plain view is evidence of possession.’” Further, he “sent two incriminating messages, referencing what they were stored in (a ‘clear container’) and where (in ‘the center console’), advising something should be ‘throw[n] away,’ and asserting that another’s ‘shit [wa]s safe.’” The court concluded this “‘circumstantial evidence and [the] reasonable inferences’ that can be drawn from it” established that at the very least, he “knowingly possessed” meth. Defendant relied on “the so-called ‘Davenport rule’ from” the court’s 1970’s case law in arguing that the prosecution had the “burden to prove ‘there is no innocent theory possible’ other than guilt.” But the Michigan Supreme Court’s decision in Hardiman made it clear that the “‘prosecution need not negate every reasonable theory consistent with the defendant’s innocence, but need merely introduce evidence sufficient to convince a reasonable jury in the face of whatever contradictory evidence the defendant may provide’ and that more than one person can possess a controlled substance.” Further, given the circumstantial evidence presented, the court gave “no credence to defendant’s argument that he was not the registered owner of the vehicle, that neither fingerprint nor DNA evidence were presented, and that there were no drug-sale proceeds on defendant’s person[.]”

Jury instructions; Accident defense; People v Aaron; Harmless error; Outcome determinative error; People v Lukity; Sentencing; Guidelines scoring; MCL 777.66; People v Lockridge; Proportionality; Departure sentence; People v Dixon-Bey; Life without parole (LWOP)

The court held that defendant was entitled to a new trial on his felony-murder conviction because the trial court erroneously instructed the jury that accident was not a defense to felony murder. It also held that he was entitled to resentencing on his FIP conviction. Defendant admitted shooting and killing his longtime friend but testified that the shooting was accidental and occurred while he was trying to place a gun into a backpack in the backseat. The jury convicted defendant of first-degree felony murder, FIP, and felony-firearm. The trial court sentenced him to mandatory LWOP for felony murder and 45 to 75 years for FIP. On appeal, the court held that the felony-murder instruction was contrary to Aaron, which provides that where “the death was purely accidental, application of the felony-murder doctrine is unjust and should be precluded.” The court noted that “[a]ccident is a viable defense to murder” and that the prosecutor conceded accident is a defense to first-degree felony murder. The error was outcome determinative because a properly instructed jury could have accepted defendant’s version that the killing was a “purely a split-second accident,” and the jury had been told “many times over” that accident was not a defense to felony murder. The court also held that resentencing was required on the FIP conviction because the trial court did not score the guidelines and did not explain why the major upward departure was more proportionate than a different sentence. Vacated and remanded.

Habeas corpus; Right of confrontation; Ineffective assistance of counsel; Failure to employ a medical expert to challenge the state’s expert; Whether the state appellate court’s determination that petitioner’s attorneys were not deficient was an unreasonable application of law; The Antiterrorism & Effective Death Penalty Act (AEDPA) standard; 28 USC § 2254(d)(1); Prejudice

The court affirmed the district court’s denial of a writ of habeas corpus on petitioner-Jones’s claims that (1) his trial counsel was ineffective during the guilt phase for not presenting testimony from a forensic expert to counter the state’s expert, and (2) his Confrontation Clause rights were violated by allowing witnesses to testify to out-of-court statements his wife made. Jones was found guilty of aggravated murder, murder, and rape. In his habeas petition, he raised right of confrontation and ineffective assistance of counsel claims. As to his Confrontation Clause claim, the court found “the Ohio Supreme Court reasonably concluded that” his wife’s (D) statements to witness-J “were non-testimonial and that Jones’s confrontation rights were not violated by the admission of [J’s] statements.” The government agreed with Jones that the other witness’s (M) testimony about D’s “out-of-court statements violated Jones’s confrontation rights. The only” issue on appeal was whether the Ohio Supreme Court’s conclusion that it “was harmless beyond a reasonable doubt was reasonable under § 2254(d).” The court concluded that given Jones admitted killing the victim (Y) “and there was significant other evidence to support the verdict, [M’s] erroneously admitted testimony seemingly had little effect.” He next argued that his trial counsel was ineffective for not using “an expert to rebut the state’s finding of rape.” The court concluded that this claim failed on the prejudice prong, holding “that the state court’s conclusion that Jones could not show prejudice was a reasonable application of federal law.” It noted that “even Jones’s hand-picked expert . . . could not rebut much of the physical evidence that the state presented against him. An objectively reasonable state court could therefore find that, even if Jones’s counsel had employed an expert to counter [the state’s expert], there would not be a reasonable probability of a different outcome.”

Pleadings; Amended complaint as of right; MCR 2.118(A)(1); Progress MI v Attorney Gen; Summary disposition; Operative complaint; MCR 2.116(C)(8); El-Khalil v Oakwood Healthcare, Inc

The court held that the trial court erred by granting summary disposition based on plaintiffs’ original complaint after plaintiffs had filed a materially different first amended complaint as of right. Plaintiff-developer sued defendant-city after the city concluded that the parties’ purchase agreement for a hotel was void because the transaction did not close by the outside closing date. The trial court granted summary disposition for the city, reasoning that once the agreement expired, the city had no further contractual obligations. On appeal, the court held that under MCR 2.118(A)(1), plaintiffs were entitled to file their first amended complaint within 14 days after being served with the city’s responsive pleading, and that the amended complaint superseded the original complaint. The court explained that the prior pleading was “considered abandoned and withdrawn,” and that the superseding pleading “ensure[s] that the court and the opposing parties will be aware of the points at issue.” The trial court erred because it treated the original complaint as operative and did not evaluate whether the first amended complaint was futile. This mattered because the amended complaint alleged broader claims, including claims based on the city’s alleged pre-closing conduct rather than only on whether the agreement expired after the closing date. The court declined to address the parties’ remaining contract-interpretation, equitable-estoppel, futility, statute-of-frauds, and incorporation-clause arguments, leaving them for the trial court to consider in the context of the amended complaint. Vacated and remanded.

Indian Child Welfare Act (ICWA)/Michigan Indian Family Preservation Act (MIFPA) notice; 25 USC § 1912(a); In re Morris; Termination under § 19b(3)(c)(i); Continuing conditions; In re Williams; Due process; Department-created grounds for termination; In re B & J; Reasonable reunification efforts; Alternative therapy; In re Sanborn; Child’s best interests; Permanency & stability; In re Olive/Metts Minors

The court held that conditional reversal was required because the trial court failed to comply with ICWA and MIFPA notice requirements, but respondent-mother’s remaining challenges to termination lacked merit. The case arose after respondent left the child (SG) with unknown people who were unwilling to care for him, while she continued to struggle with substance abuse, mental-health issues, and housing instability. The trial court terminated her parental rights under § (c)(i), among other grounds. On appeal, the court held that the father’s statement during his adjudication that SG’s grandmother was a recognized member of the Cherokee tribe triggered ICWA and MIFPA notice requirements, but “[n]othing in the record indicates” the DHHS notified the Cherokee tribe or documented notice as required. The court next held that § (c)(i) supported termination because respondent’s substance-abuse and mental-health conditions continued, she attended only about half of her screens and therapy appointments, tested positive at all screens she attended, and failed to obtain adequate housing. The court also held that the DHHS did not create the grounds for termination because her “delayed participation and lack of engagement in services overall demonstrated that respondent created the circumstances that led to termination.” It further held that reasonable efforts were made because services were offered and respondent failed to show she “‘would have fared better if other services had been offered.’” Finally, the court held that termination was in SG’s best interests because the foster home provided permanency, stability, and finality, and SG wanted to stay there. Conditionally reversed and remanded for ICWA and MIFPA compliance.

Indian Child Welfare Act (ICWA)/Michigan Indian Family Preservation Act (MIFPA) notice; 25 USC § 1912(a); In re Morris; Termination under § 19b(3)(c)(i); Continuing conditions; In re Williams; Due process; Department-created grounds for termination; In re B & J; Reasonable reunification efforts; Alternative therapy; In re Sanborn; Child’s best interests; Permanency & stability; In re Olive/Metts Minors

The court held that conditional reversal was required because the trial court failed to comply with ICWA and MIFPA notice requirements, but respondent-mother’s remaining challenges to termination lacked merit. The case arose after respondent left the child (SG) with unknown people who were unwilling to care for him, while she continued to struggle with substance abuse, mental-health issues, and housing instability. The trial court terminated her parental rights under § (c)(i), among other grounds. On appeal, the court held that the father’s statement during his adjudication that SG’s grandmother was a recognized member of the Cherokee tribe triggered ICWA and MIFPA notice requirements, but “[n]othing in the record indicates” the DHHS notified the Cherokee tribe or documented notice as required. The court next held that § (c)(i) supported termination because respondent’s substance-abuse and mental-health conditions continued, she attended only about half of her screens and therapy appointments, tested positive at all screens she attended, and failed to obtain adequate housing. The court also held that the DHHS did not create the grounds for termination because her “delayed participation and lack of engagement in services overall demonstrated that respondent created the circumstances that led to termination.” It further held that reasonable efforts were made because services were offered and respondent failed to show she “‘would have fared better if other services had been offered.’” Finally, the court held that termination was in SG’s best interests because the foster home provided permanency, stability, and finality, and SG wanted to stay there. Conditionally reversed and remanded for ICWA and MIFPA compliance.