Labor dispute involving a refusal to bargain over unilateral changes to parking arrangements; Alleged violation of § 10(1)(e) of Michigan’s Public Employment Relations Act (PERA) (MCL 423.210(1)(e)); Comparing In re Univ of MI Health System & Univ of MI House Officers Ass’ns (MERC); Unfair labor practice (ULP); Port Huron Educ Ass’n, MEA/NEA v Port Huron Area Sch Dist; A public employer’s duty to bargain in good faith; MCL 423.215(1); Whether a change has a significant impact on bargaining members; Oak Park Pub Safety Officers Ass’n v Oak Park; The “covered by” doctrine; Waiver; Collective bargaining agreement (CBA)

Finding no errors requiring reversal, the court affirmed the MERC’s decision and order concluding that respondent-University’s refusal to bargain over unilateral changes to parking arrangements on its medical campus violated § 10(1)(e) of the PERA. The charging party-nurses association (MNA) filed a ULP charge with MERC after the University refused to bargain over the parking changes at its medical center. The MERC agreed with the nurses, finding: (1) the parking changes “implicated a mandatory subject of bargaining and significantly impacted a term or condition of the” MNA members’ employment, (2) “the University did not fulfill its duty to bargain over” the changes because the subject was not “covered by” the parties’ CBA, and (3) the MNA did not waive the right to bargain over the topic. MERC ordered the University to cease and desist from refusing to bargain, to restore the status quo from before it implemented the “changes, and to make bargaining unit members whole for monetary losses incurred as a result of” the changes, with interest. On appeal, the court rejected the University’s argument that the redesignation of parking spaces did not implicate a mandatory subject of bargaining because the changes had a de minimis impact on bargaining unit members. It found that “competent, material, and substantial evidence supported MERC’s holding that the parking changes had a significant impact on the terms and conditions of bargaining unit members’” employment. The “changes had a cascading effect on bargaining unit members, impacting the length of their workday commute, the quality of the parking available, and the value of their parking permits.” The court also rejected the University’s claim that it reasonably relied on the language of the parties’ CBA to implement the changes, noting that “neither the language of the CBA nor the parties’ history of negotiations support that the topics related to the parking changes were ‘covered by’” the CBA. “Given that the only mention of topics related to the parking changes was limited to stray commentary regarding future projects, this evidence did not support that the CBA covered the parking issues in dispute.” Finally, the court rejected the University’s contention that during negotiations, the nurses had notice that it intended to make the changes and ceded authority to do so, noting there was no “‘clear and unmistakable’ evidence that the MNA waived the right to bargain over topics relevant to the parking changes.”

Jurisdiction; Standing of a legally incapacitated individual; MCL 700.1105(i); A guardian’s authority; MCL 700.5306(1); MCL 700.5314; In re Guardianship of Malloy; Principle that a legally incapacitated individual is precluded from bringing lawsuits on his or her own behalf; MCR 2.201(E); Rule prohibiting an attorney from representing multiple clients when the representation of one client is directly adverse to, or may materially limit, the attorney’s representation of another client; MRPC 1.7; Killingbeck v Killingbeck; Deference to the Michigan Attorney Grievance Commission (MAGC) on matters of attorney discipline; MCR 9.108(A)

The court held that appellant (a legally incapacitated adult) lacked standing to appeal on her own behalf, and her sister (Melissa) lacked authority to hire an attorney (Strehle) to represent her. It also admonished Strehle for his “lack of professional integrity in seeking to represent both Melissa and appellant” in the probate court, and for his “cavalier and dismissive comments” about the situation at oral argument. The probate court in these consolidated cases: (1) approved the successor trustee’s 12th annual account, (2) appointed a second successor trustee, (3) allowed the 14th and final annual account, and (4) granted the petition to approve the payment of a retainer fee. On appeal, the court determined that appellant’s status as a legally protected individual indicated she did “not have standing to bring this appeal on her own behalf, and instead should have done so through her legal guardian.” In addition, Melissa had “no legal authority to hire an attorney for appellant. Only appellant’s guardian” had that authority. Finally, the court admonished Strehle “for his lack of professional integrity in seeking to represent both Melissa and appellant in the court below, and for his cavalier and dismissive comments when asked by this panel at oral argument to explain the propriety of his working relationship with appellant and Melissa.” It noted Strehle’s “bald claims that no conflict existed do not inspire confidence, nor do they indicate [he] met his duty to comply with MRPC 1.7. There is no evidence that he consulted with Melissa and appellant’s legal guardian about the potential conflict, or that Melissa and appellant’s guardian consented to dual representation.” The court was “gravely concerned that Strehle may have violated MRPC 1.7. However,” it acknowledged “that ‘a breach of the MRPC merely constitutes grounds for invoking the attorney disciplinary process.” It deferred to the MAGC in that regard. Dismissed for lack of jurisdiction.

The Elliott-Larsen Civil Rights Act (ELCRA); Quid pro quo sexual harassment; Collateral estoppel; Hostile work environment; Motion to amend the complaint

Concluding the trial court appropriately granted summary disposition to defendants-Trinity and Infinity on plaintiff’s claims of quid pro quo sexual harassment and hostile work environment, the court affirmed. She argued that collateral estoppel did not apply to her quid pro quo sexual harassment claim because the federal court in her prior case resolved the Title VII “claim against Trinity, but declined to consider the ELCRA quid pro quo sexual harassment claim.” The court held that “all the elements of collateral estoppel are met. The federal court ruled on a question of fact that was essential to the judgment, and plaintiff had a full and fair opportunity to litigate that issue.” It found that while “mutuality of estoppel is not required here, there is mutuality because the federal case involved the same parties.” The court also found “no merit in plaintiff’s theory that the federal court’s ruling on the Title VII claims cannot have preclusive effect on the ELCRA claims.” Further, the trial court “correctly granted summary disposition pursuant to MCR 2.116(C)(10).” The court concluded no evidence suggested “that plaintiff’s ‘employer or the employer’s agent used her submission to or rejection of the proscribed conduct as a factor in a decision affecting her employment.’” As to the dismissal of her ELCRA quid pro quo sexual harassment claim against Infinity, plaintiff merely asserted that defendant-Dr. Vettraino ‘“was in a position to threaten her career’ and ‘in a position of extreme power over her.’” However, this was “insufficient to establish that Dr. Vettraino had the requisite authority. Because that is an essential element of the ELCRA quid pro quo sexual harassment claim,” the court held that the trial court did not err in granting Infinity summary disposition under MCR 2.116(C)(10) on this claim. It also concluded “the trial court appropriately dismissed plaintiff’s claim of hostile work environment against Trinity under MCR 2.116(C)(7).” In addition, it “correctly granted Trinity summary disposition under MCR 2.116(C)(10) because no genuine issue of material fact existed, so Trinity was entitled to judgment as a matter of law.” As to plaintiff’s hostile work environment claim against Infinity, the court determined the “trial court correctly ruled that plaintiff was collaterally estopped from arguing the notice element of her hostile work environment claim, so summary disposition was appropriate under MCR 2.116(C)(7).” Also, the court held that “the trial court did not err when it awarded Infinity summary disposition under MCR 2.116(C)(10) because there was no genuine issue of material fact about the notice, or lack thereof, so Infinity was entitled to judgment as a matter of law. The same lack of notice fatal to plaintiff’s hostile work environment claim against Trinity dooms her hostile work environment claim against Infinity.” Finally, the trial court did not abuse its discretion in denying her leave to amend her complaint.

Race-based claims under the Civil Rights Act (CRA); Employment status

The court concluded that at a minimum, plaintiff “established a genuine issue of material fact regarding whether defendant affected or controlled a term, condition, or privilege of his employment,” and the trial court erred by granting defendant’s motion for summary disposition on the basis that plaintiff was unable to assert a viable claim under the CRA. Defendant is an apartment complex. “Plaintiff, who is African American, lived at the complex and also worked there performing maintenance duties and painting apartments.” He asserted race-based claims under the CRA. Plaintiff argued that the trial court erred by holding “that he was an independent contractor and that the CRA is applicable only to employees and not to independent contractors.” The court held that his “employment status was not determinative of whether he could assert a viable claim under the CRA.” It found “plaintiff established a genuine issue of material fact regarding whether defendant affected or controlled a term, condition, or privilege of his employment.” Defendant’s manager “testified that before plaintiff quit working for defendant in the Spring 2021, she assigned plaintiff his job duties, and, if he refused to perform a certain assignment, she gave him an alternative assignment. If he refused to perform the alternative assignment, she sent him home for the day. Defendant prohibited plaintiff from subcontracting his assignments. Defendant required plaintiff to work from 9:00 a.m. to 5:00 p.m. and provided the painting supplies that plaintiff needed. Defendant also required plaintiff to punch a time clock and controlled his hourly pay rate.” In addition, the record indicated “that, after plaintiff returned to work as a contractor in the Fall of 2021, defendant continued to control a term, condition, or privilege of his employment. Defendant advised plaintiff which apartments needed painting and the timeframe within which the apartments needed to be painted. Plaintiff continued to use defendant’s painting supplies, and defendant continued to prohibit plaintiff from subcontracting the work. In addition, plaintiff testified that defendant sometimes told him the order in which to paint the apartments.” Reversed and remanded.

Sentencing a juvenile for first-degree felony murder; Miller v Alabama; People v Taylor; Right against self-incrimination; Order compelling defendant to submit to a psychological evaluation by the prosecution’s expert; Striking a defense expert’s report & testimony; Kansas v Cheever; Estelle v Smith; Buchanan v Kentucky; Allen v State (FL); Applicability of the right to a fair trial in the context of a Miller hearing

The court held “that when a defendant intends on submitting an expert witness and report to the trial court that addresses any relevant Miller factors, neither the Fifth Amendment nor art 1, § 17 of the Michigan Constitution are violated when the defendant is required by court order to submit to an examination by a state witness.” It also rejected his right to a fair trial claim, noting that this right “does not apply in the context of a Miller hearing.” The case arose from defendant’s murder, rape, and robbery of a randomly selected victim when he was 15. At issue on appeal was “an order resolving an evidentiary issue prior to defendant’s second Miller hearing.” He contended that “the trial court order compelling him to submit to a psychological evaluation by the prosecution’s expert, or striking” a defense expert’s (H) “report and testimony, violated his federal and state constitutional right against self-incrimination.” The court concluded, applying Cheever, Buchanan, and Estelle, “that the trial court’s order did not violate defendant’s right against self-incrimination because the prosecution seeks to offer the evidence, as part of the new burden of proof imposed upon it by Taylor, for at least the limited purpose of rebutting [H’s] examination and testimony, which will provide the [trial] court with a complete picture of defendant. In other words, because ‘the prosecutor bears the burden of proof at a Miller hearing[,]’ and ‘[t]hat burden is to rebut a presumption that the particular juvenile defendant is not deserving of’ life without parole, . . . providing the prosecution the ability to have its expert meet with defendant for purposes of expert evaluation and testimony to rebut defendant’s evidence does not violate his right against self-incrimination.” The court noted that many “state appellate courts have addressed whether a trial court can, consistent with the Fifth Amendment, compel a defendant to cooperate with a state expert witness during the sentencing phase of the case. Those courts are uniform in concluding that, consistent with Estelle, Cheever, and Buchanan, the Fifth Amendment is not violated (or the right is waived) by requiring defendant to cooperate with a state expert hired to rebut the evidence defendant is submitting on the issue.” The court found the trial court order here was not in error. Affirmed.

Motion to destroy a DNA profile & sample collected related to a dismissed charge; MCL 28.176(4) & 10(b)

The court held that MCL 28.176(4) and (10)(b) required the destruction of defendant’s “DNA profile and sample obtained from him in connection with the felony home invasion charge because that charge was dismissed.” He was sentenced to a year of probation for aggravated assault and illegal entry. He pled no contest to these charges in exchange for the dismissal of the felony second-degree home invasion charge and a misdemeanor charge. The trial court denied his motion to destroy his DNA profile and sample the police collected in connection with the home invasion charge. On appeal, the court found that the relevant statutory language was “clear and unambiguous. MCL 28.176(1) provides that law enforcement ‘shall permanently retain a DNA identification profile of an individual obtained from a sample . . . [if] [t]he individual is arrested for committing or attempting to commit a felony offense.’ However, MCL 28.176(4)(a) provides that ‘the individual’s DNA sample or DNA identification profile, or both, must be destroyed or expunged, as appropriate, if the charge for which the sample was obtained has been dismissed or resulted in acquittal, or no charge was filed within the limitations period.’ Likewise, MCL 28.176(10)(b) provides that the state police forensic laboratory shall dispose of a DNA sample or profile or both when ‘the charge for which the sample was obtained has been dismissed or has resulted in an acquittal or that no charge was filed within the applicable limitations period.’” The court disagreed with the trial court and the prosecution “that all dismissals are not equal under MCL 28.176. The statute plainly states that DNA must be destroyed when ‘the charge for which the sample was obtained has been dismissed.’” The court noted that the “statute does not in any way qualify the term ‘the charge for which the sample was obtained’ or the term ‘dismissed.’ Rather, the plain and unambiguous language of the statute requires the DNA profile and sample to be destroyed when the charge for which the sample was obtained has been dismissed. Because the dismissal in this case falls squarely within the plain and ordinary meaning of the statutory language of MCL 28.176(4)(a) and MCL 289.176(10)(b), the destruction of defendant’s DNA profile and sample is mandated.” Reversed and remanded.

Statistical vouching in a CSC case; People v Thorpe; People v Peterson; People v Bonner (Unpub); Plain error review; Prejudice; 25-year mandatory minimum sentence; MCL 750.520b(2)(b); People v Benton

While the court held that a prosecution expert (R) impermissibly vouched for the victim’s credibility in this CSC case, and the error was obvious, it concluded defendant-Sattler-VanWagoner did not show outcome-determinative prejudice. And his challenge to his mandatory minimum sentence under MCL 750.520b(2)(b) failed pursuant to Benton. Thus, the court affirmed his CSC I conviction and sentence. It found that R’s “statements that false reports are ‘statistically very rare,’ though lacking a numeric value, was essentially the statistical vouching described in Thorpe[.]” The court applied plain error review to defendant’s unpreserved claim. As to the first two prongs, it determined “that an error occurred and its was obvious. Even without attaching a number or percentage, [R’s] testimony about the statistical likelihood of a child complainant lying about sexual assault (i.e., that it was ‘statistically very rare’) clearly violated Thorpe’s prohibition on such testimony.” The court noted that the “Supreme Court’s analysis in Thorpe was not limited to specific numerical values; it applied more broadly to the odds or likelihood that someone is telling the truth.” The court reached the same conclusion in an unpublished case, Bonner, which involved the same expert as Thorpe. The court held in Bonner that there “‘is no meaningful difference between a falsehood estimate of “two to four percent,” [the expert]’s testimony in Thorpe, and his unsolicited “extremely rare” response here.’” Finding its reasoning in Bonner sound, the court concluded R impermissibly vouched for the victim’s “credibility by testifying that false reports were ‘statistically very rare in cases like this’ for two reasons. First, although [R] did not provide a specific percentage value, her comment on the statistical rarity of a false report was sufficiently similar to bring her testimony within the scope of Thorpe’s prohibitions. This is exactly what” the court found in Bonner, and its reasoning was sound. “Second, the addition of the phrase ‘in cases like this’ comes dangerously close to commenting directly on [the victim’s] truthfulness or veracity in this case. That phrase directly linked the statistical likelihood of a false report to the testimony in this case.” But defendant was not entitled to reversal. The issue related “to a single comment in [R’s] testimony.” The court concluded the “isolated nature of the statement and substantial other evidence of Sattler-VanWagoner’s guilt indicates that this error did not affect the outcome.”

Other acts evidence under MCL 768.27a; People v Watkins; MRE 403; Evidence of gang affiliation; Rebuttal evidence; The rule of curative admissibility; Ineffective assistance of counsel; Prejudice; Motion to suppress cell phone evidence; Supervision of probationers exception to the warrant requirement; Search condition in a probation order; United States v Knights; Whether the cell phone qualified as a computer; MCL 752.792(3); Reasonable suspicion to search the phone; Admission of defendant’s police statements; Waiver of Miranda rights; People v Cheatham; Sentencing; Consecutive sentences; People v Norfleet

The court held that the trial court (1) did not abuse its discretion in admitting other acts evidence under MCL 768.27a and evidence of defendant’s gang affiliation or (2) err in denying his motion to suppress evidence obtained from his cell phone. As to the admission of his police statements, the court found no clear error in the trial court’s finding that he was competent to waive his Miranda rights. It also rejected his ineffective assistance of counsel claim. But it agreed with him “that the trial court abused its discretion by imposing consecutive sentences without providing adequate justifications for doing so.” Thus, while the court affirmed his convictions of CSC I, aggravated child sexually abusive activity, aggravated possession of child sexually abusive material, and using a computer to commit a crime, it “remanded for the trial court to articulate its rationale for imposing each consecutive sentence or to resentence defendant.” The other acts evidence he challenged on appeal “involved the forcible sexual penetration of a 14-year-old while being falsely imprisoned[.]” He asserted the evidence should have been excluded as unfairly prejudicial under MRE 403. The court determined that the similarities between the “incidents weighed in favor of admitting the” challenged evidence. “Both incidents involved defendant, at age 23, engaging in penetrative sex with 14-year-old girls. Similarly, the temporal proximity of the incidents, as well as the absence of intervening acts, weigh in favor of admission because both incidents occurred when defendant was 23 years old.” The court concluded he failed to show “that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.” As to the admission of gang-related testimony, the court noted MRE 404(b) did not apply as this evidence was admitted “for the limited purpose of rebuttal under the rule of curative admissibility, more colloquially known as the ‘opening the door’ doctrine.” And defendant could not establish the prejudice prong of his related ineffective assistance claim. As to the cell phone evidence, (1) the record showed that he accepted the search condition in his probation order, (2) that “order unambiguously provided that [his] cell phone was subject to the warrantless search[,]” and (3) the officers had reasonable suspicion to search the phone.

Ineffective assistance of counsel for failure to stipulate to defendant’s felony conviction before his previous judgment of sentence (JOS) was admitted & shown to the jury; People v Swint; Trial strategy; Outcome-determinative error; Jury instructions; M Crim JI 4.11; Whether the trial court’s instruction was an “adequate safeguard”; People v Green; Relevance; MRE 401 & 402; Unfair prejudice; MRE 403; Court costs; Constitutionality of MCL 769.1k(1)(b)(iii); People v Johnson

The court held that the trial court did not err by: (1) finding that defense counsel’s failure to stipulate to defendant’s felony conviction did not violate his right to effective assistance of counsel, (2) failing to include M Crim JI 4.11 in its jury instructions, or (3) admitting testimony as to the ownership of the firearms found in his vehicle. It also rejected his challenge to the constitutionality of MCL 769.1k(1)(b)(iii). He was convicted of FIP of a firearm, FIP of ammunition, fourth-degree fleeing or eluding a police officer, and felony-firearm. His convictions arose out of an incident in which he drove his vehicle into a field, following a high-speed police chase involving two deputies. On appeal, the court rejected his argument that defense counsel was ineffective in failing to stipulate to his felony conviction before his previous JOS was admitted and shown to the jury by the prosecution. Defendant failed “to present any authority for his contention that defense counsel was actually required to stipulate to the felony conviction, only that she had the option. Defense counsel testified that she decided to not exercise that option as a trial strategy to avoid drawing attention to the conviction. We will not second-guess matters of trial strategy on appeal.” In addition, “the presentation of defendant’s JOS to the jury was not outcome-determinative.” As to his jury instructions claim, the court noted the “trial court instructed the jury to ‘consider each crime separately in light of all of the evidence in the case.’” This instruction “was an ‘adequate safeguard’ pursuant to Green.” Defendant also “failed to overcome the presumption that defense counsel’s performance was sound trial strategy and failed to show that it fell below an objective standard of reasonableness.” And even if “defense counsel’s performance was unreasonable and did not constitute sound trial strategy, defendant failed to demonstrate that, but for defense counsel’s deficient performance, a different result was reasonably probable.” The court next rejected his contention that the trial court abused its discretion by admitting testimony as to the ownership of the firearms found in his vehicle, finding “the trial court’s resolution of this evidentiary question was not outside the range of principled outcomes.” And his challenge to the constitutionality of MCL 769.1k(1)(b)(iii) failed under Johnson. Affirmed.

Ineffective assistance of counsel; Trial strategy; Prejudice

Holding that defendant was not denied the effective assistance of counsel, the court affirmed his convictions of CSC I. His convictions arose out of his repeated sexual assaults of the victim over the course of a 7-month period beginning when she was 10 years old. On appeal, he argued that defense counsel rendered ineffective assistance of counsel by: (1) failing to present video evidence of the victim and defendant playing and spending time together, (2) advising him not to testify at trial notwithstanding his desire to testify, (3) failing to call a particular witness, (4) failing to inform him that he could be convicted on the basis of the victim’s testimony alone, and (5) failing to request a bench trial contrary to his wishes. First, the court presumed counsel’s decision not to seek admission of the video was a matter of trial strategy, noting that, in any event, “the evidence would have been cumulative of the victim’s testimony.” In addition, to the extent “defense counsel advised defendant not to testify, defendant has failed to overcome the presumption that counsel’s advice constituted sound trial strategy.” Next, the proposed witness’s “testimony would have been cumulative of the testimony of both the victim and her mother.” And because she “moved out of the home shortly after the first sexual assault occurred,” the relevance of her testimony was limited. Defendant also “failed to establish that his trial counsel’s failure to call” her as a witness “denied him a substantial defense.” Further, he failed “to indicate what he would have done differently if his attorney had advised him that the victim’s testimony alone was sufficient to convict him.” Finally, he “failed to overcome the presumption that counsel’s decision to proceed with a jury trial constituted sound trial strategy.” The record was “devoid of any indication that defendant preferred a bench trial rather than a jury trial.”

Confrontation Clause violation; The corpus delicti rule; Harmless error

The court held that the Confrontation Clause violation in this case was harmless beyond a reasonable doubt. Defendant was convicted of use of body armor by a violent felon. In a prior appeal, the court vacated his conviction and remanded for a new trial after finding that “testimony was admitted in violation of the Confrontation Clause, that the corpus delicti rule barred inculpatory statements made by defendant, and that the Confrontation Clause error was not harmless beyond a reasonable doubt.” However, the Supreme Court found that the corpus delicti rule did not apply to defendant’s admissions that he possessed the bulletproof vest. As such, it affirmed in part, reversed in part, and remanded for the court to reconsider whether the Confrontation Clause violation was harmless beyond a reasonable doubt. On remand, the court found the violation was, in fact, harmless beyond a reasonable doubt. “The stipulation that defendant had been convicted of a violent felony established that particular element of the offense, and the two statements in which defendant admitted that he had been wearing the body armor or bulletproof vest at the time of arrest constituted strong evidence of the element of possession or use.” In addition, “in defendant’s own testimony, he could not recall or remember whether he was in possession of or wearing the bulletproof vest when arrested; there was no outright denial. On examination of the entire record,” it was “clear, beyond a reasonable doubt, that the jury verdict would have been the same absent the offending testimony.” Affirmed.

A recreational marijuana ballot initiative; Alleged violation of MCL 168.485; Michigan Regulation & Taxation of Marihuana Act; Alleged violation of the Michigan Zoning & Enabling Act (MZEA)

The court affirmed the trial court’s decision to grant defendant summary disposition in this case stemming “from a dispute over a ballot initiative about recreational marijuana establishments that was approved by” plaintiff-township’s voters. Plaintiff asserted “there was a genuine question of material fact regarding the alleged violation of MCL 168.485.” It contended “misleading ballot language led voters to approve an ordinance that would not have received approval otherwise.” The count found that even if it “were to concede that the wording on the ballot was, at the very least, incomplete in accurately representing the essence of the ordinance, it” was unnecessary to resolve the issue at this point. The “pivotal question now is not whether the ballot language was misleading; rather, it centers on whether this Court possesses the authority to invalidate the ordinance subsequent to its approval by voters, regardless of whether the language may be regarded as misleading.” The court was not presented with any such authority. “The absence of such authority likely stems from the fact that the appropriate time to contest the accuracy of the ballot language was prior to the election, when this dispute could have been addressed effectively.” The court determined that since the election has already taken place, the issue regarding the ballot language was “moot, as there is no feasible way to rectify any alleged past wrong.” It added that “even if it were determined that the language on the ballot was misleading, it would not change the fact that the language was presented on the ballot, the election was conducted, and a majority of voters approved the proposed ordinance. Plaintiff has not provided any legal authority supporting the assertion that a violation of MCL 168.485, assuming arguendo that one occurred, can be remedied post-election by invalidating the ordinance approved by voters.” The court concluded that while plaintiff and the dissent contended “the ballot wording misled voters, resulting in their approval of an ordinance that would not have otherwise passed, the facts remain unchanged.” The court noted that “if plaintiff believed the language presented on the ballot was misleading, it had the opportunity to address that concern prior to the election,” but there was no indication it “ever availed itself of this opportunity.” It found that at this point, “a challenge to the actual validity of the ordinance itself would be permissible,” but plaintiff’s ballot wording challenge “based on an alleged violation of MCL 168.485 is not such a substantive challenge to the validity of the ordinance itself. The township has thus not demonstrated that it is entitled to any appellate relief on this ground.” The court next held that the “ordinance’s content is directly related to the title it bears, indicating that plaintiff has not effectively established a viable title-body challenge, even if its claims are assumed to be true.” Plaintiff also argued “that the trial court erred in dismissing its claim that the ordinance conflicts with the MZEA.” But the court concurred with the trial court’s findings “that the township’s allegations do not identify any specific provision of the MZEA that the ordinance purportedly violates.”

The Elliott-Larsen Civil Rights Act (ELCRA); Quid pro quo sexual harassment; Collateral estoppel; Hostile work environment; Motion to amend the complaint

Concluding the trial court appropriately granted summary disposition to defendants-Trinity and Infinity on plaintiff’s claims of quid pro quo sexual harassment and hostile work environment, the court affirmed. She argued that collateral estoppel did not apply to her quid pro quo sexual harassment claim because the federal court in her prior case resolved the Title VII “claim against Trinity, but declined to consider the ELCRA quid pro quo sexual harassment claim.” The court held that “all the elements of collateral estoppel are met. The federal court ruled on a question of fact that was essential to the judgment, and plaintiff had a full and fair opportunity to litigate that issue.” It found that while “mutuality of estoppel is not required here, there is mutuality because the federal case involved the same parties.” The court also found “no merit in plaintiff’s theory that the federal court’s ruling on the Title VII claims cannot have preclusive effect on the ELCRA claims.” Further, the trial court “correctly granted summary disposition pursuant to MCR 2.116(C)(10).” The court concluded no evidence suggested “that plaintiff’s ‘employer or the employer’s agent used her submission to or rejection of the proscribed conduct as a factor in a decision affecting her employment.’” As to the dismissal of her ELCRA quid pro quo sexual harassment claim against Infinity, plaintiff merely asserted that defendant-Dr. Vettraino ‘“was in a position to threaten her career’ and ‘in a position of extreme power over her.’” However, this was “insufficient to establish that Dr. Vettraino had the requisite authority. Because that is an essential element of the ELCRA quid pro quo sexual harassment claim,” the court held that the trial court did not err in granting Infinity summary disposition under MCR 2.116(C)(10) on this claim. It also concluded “the trial court appropriately dismissed plaintiff’s claim of hostile work environment against Trinity under MCR 2.116(C)(7).” In addition, it “correctly granted Trinity summary disposition under MCR 2.116(C)(10) because no genuine issue of material fact existed, so Trinity was entitled to judgment as a matter of law.” As to plaintiff’s hostile work environment claim against Infinity, the court determined the “trial court correctly ruled that plaintiff was collaterally estopped from arguing the notice element of her hostile work environment claim, so summary disposition was appropriate under MCR 2.116(C)(7).” Also, the court held that “the trial court did not err when it awarded Infinity summary disposition under MCR 2.116(C)(10) because there was no genuine issue of material fact about the notice, or lack thereof, so Infinity was entitled to judgment as a matter of law. The same lack of notice fatal to plaintiff’s hostile work environment claim against Trinity dooms her hostile work environment claim against Infinity.” Finally, the trial court did not abuse its discretion in denying her leave to amend her complaint.

Intentional infliction of emotional distress (IIED); Governmental immunity; Governmental function; Genesee Cnty Drain Comm’r v Genesee Cnty; The Whistleblowers’ Protection Act (WPA); MCL 15.362; Protected activity; Brown v Mayor of Detroit; Retaliatory action; Wurtz v Beecher Metro Dist; Causal connection; Detroit Police Department (DPD); Office of Chief Investigator (OCI)

In these consolidated appeals, the court held that (1) plaintiff-police officer did not properly plead her IIED claim in avoidance of governmental immunity but (2) she did establish a prima facie case of a WPA violation. The case arose from events after she “referred for investigation a citizen’s complaint against the commander of her police precinct” (G). As to her IIED claim, the court noted that it seemed she “adopted the same theory employed by the plaintiffs in” Genesee Cnty Drain Comm’r, which the court summarized “as ‘if a governmental agency commits an intentional tort, it cannot, by definition, be engaged in the exercise or discharge of a governmental function, as intentional torts ought not be regarded as a government function.’” The court rejected the theory there and did so again here. As in that case, “‘the alleged intentional torts committed by defendants were specific acts or decisions that occurred as part of the “general activity” of [their] government function.’” The court noted that it “‘is well established in Michigan that the management, operation, and control of a police department is a governmental function.’” There was testimony from multiple witnesses “that it was common practice to reassign an officer who was under investigation to another unit within the police department while the investigation was pending. Therefore, plaintiff’s reassignment fell within the management of the DPD as a governmental function. Because [she] did not present any evidence or argument to contradict this testimony, she failed to establish that her reassignment occurred outside the exercise or discharge of a governmental function.” But as to her WPA claim, she “was engaged in protected activity when she recorded [the] complaint and submitted it to the OCI, contrary to [G’s] demand that plaintiff not process the complaint.” In addition, she “established an adverse employment action as to the reassignment and loss of overtime.” The court further concluded that, viewing the “evidence in a light most favorable to plaintiff,” a genuine issue of material fact existed that the investigation into her alleged insubordinate behavior “was initiated in retaliation for her submission of” the citizen complaint. The court reversed the trial court’s denial of summary disposition to defendant as to the IIED claim but affirmed the denial of its summary disposition motion as to the WPA claim, and remanded.

Race-based claims under the Civil Rights Act (CRA); Employment status

The court concluded that at a minimum, plaintiff “established a genuine issue of material fact regarding whether defendant affected or controlled a term, condition, or privilege of his employment,” and the trial court erred by granting defendant’s motion for summary disposition on the basis that plaintiff was unable to assert a viable claim under the CRA. Defendant is an apartment complex. “Plaintiff, who is African American, lived at the complex and also worked there performing maintenance duties and painting apartments.” He asserted race-based claims under the CRA. Plaintiff argued that the trial court erred by holding “that he was an independent contractor and that the CRA is applicable only to employees and not to independent contractors.” The court held that his “employment status was not determinative of whether he could assert a viable claim under the CRA.” It found “plaintiff established a genuine issue of material fact regarding whether defendant affected or controlled a term, condition, or privilege of his employment.” Defendant’s manager “testified that before plaintiff quit working for defendant in the Spring 2021, she assigned plaintiff his job duties, and, if he refused to perform a certain assignment, she gave him an alternative assignment. If he refused to perform the alternative assignment, she sent him home for the day. Defendant prohibited plaintiff from subcontracting his assignments. Defendant required plaintiff to work from 9:00 a.m. to 5:00 p.m. and provided the painting supplies that plaintiff needed. Defendant also required plaintiff to punch a time clock and controlled his hourly pay rate.” In addition, the record indicated “that, after plaintiff returned to work as a contractor in the Fall of 2021, defendant continued to control a term, condition, or privilege of his employment. Defendant advised plaintiff which apartments needed painting and the timeframe within which the apartments needed to be painted. Plaintiff continued to use defendant’s painting supplies, and defendant continued to prohibit plaintiff from subcontracting the work. In addition, plaintiff testified that defendant sometimes told him the order in which to paint the apartments.” Reversed and remanded.

Labor dispute involving a refusal to bargain over unilateral changes to parking arrangements; Alleged violation of § 10(1)(e) of Michigan’s Public Employment Relations Act (PERA) (MCL 423.210(1)(e)); Comparing In re Univ of MI Health System & Univ of MI House Officers Ass’ns (MERC); Unfair labor practice (ULP); Port Huron Educ Ass’n, MEA/NEA v Port Huron Area Sch Dist; A public employer’s duty to bargain in good faith; MCL 423.215(1); Whether a change has a significant impact on bargaining members; Oak Park Pub Safety Officers Ass’n v Oak Park; The “covered by” doctrine; Waiver; Collective bargaining agreement (CBA)

Finding no errors requiring reversal, the court affirmed the MERC’s decision and order concluding that respondent-University’s refusal to bargain over unilateral changes to parking arrangements on its medical campus violated § 10(1)(e) of the PERA. The charging party-nurses association (MNA) filed a ULP charge with MERC after the University refused to bargain over the parking changes at its medical center. The MERC agreed with the nurses, finding: (1) the parking changes “implicated a mandatory subject of bargaining and significantly impacted a term or condition of the” MNA members’ employment, (2) “the University did not fulfill its duty to bargain over” the changes because the subject was not “covered by” the parties’ CBA, and (3) the MNA did not waive the right to bargain over the topic. MERC ordered the University to cease and desist from refusing to bargain, to restore the status quo from before it implemented the “changes, and to make bargaining unit members whole for monetary losses incurred as a result of” the changes, with interest. On appeal, the court rejected the University’s argument that the redesignation of parking spaces did not implicate a mandatory subject of bargaining because the changes had a de minimis impact on bargaining unit members. It found that “competent, material, and substantial evidence supported MERC’s holding that the parking changes had a significant impact on the terms and conditions of bargaining unit members’” employment. The “changes had a cascading effect on bargaining unit members, impacting the length of their workday commute, the quality of the parking available, and the value of their parking permits.” The court also rejected the University’s claim that it reasonably relied on the language of the parties’ CBA to implement the changes, noting that “neither the language of the CBA nor the parties’ history of negotiations support that the topics related to the parking changes were ‘covered by’” the CBA. “Given that the only mention of topics related to the parking changes was limited to stray commentary regarding future projects, this evidence did not support that the CBA covered the parking issues in dispute.” Finally, the court rejected the University’s contention that during negotiations, the nurses had notice that it intended to make the changes and ceded authority to do so, noting there was no “‘clear and unmistakable’ evidence that the MNA waived the right to bargain over topics relevant to the parking changes.”

No-Fault Act (NFA); PIP; Motion for reconsideration; Failure to pay a security bond

In this first-party PIP action, the court held that “it was within the range of principled outcomes for the trial court to deny plaintiff’s motion for reconsideration.” It noted that dismissal is a proper remedy when a party fails to pay a security bond. Plaintiff argued “that the trial court’s order denying his motion for reconsideration was an abuse of discretion because he stated a legitimate claim for relief and provided an affidavit that stated he was unable to pay the security bond.” Plaintiff and defendant-Larivee were involved in an auto accident. “Plaintiff failed to provide discovery and responses to defendants until required by court order, and even then, failed to provide meaningful responses.” The court noted that the “trial court found plaintiff’s affidavit insufficient to grant his request to reconsider the security bond. It was not clearly erroneous for the trial court to find that plaintiff had failed to establish his financial inability to pay the security bond.” Also, plaintiff “failed to establish a legitimate claim.” The court held that on “balance, it is unlikely that plaintiff would succeed on his claim that the prescription was an allowable expense under the” NFA. The trial court’s factual finding as to “the weakness of plaintiff’s claim was not clearly erroneous.” Affirmed.

A recreational marijuana ballot initiative; Alleged violation of MCL 168.485; Michigan Regulation & Taxation of Marihuana Act; Alleged violation of the Michigan Zoning & Enabling Act (MZEA)

The court affirmed the trial court’s decision to grant defendant summary disposition in this case stemming “from a dispute over a ballot initiative about recreational marijuana establishments that was approved by” plaintiff-township’s voters. Plaintiff asserted “there was a genuine question of material fact regarding the alleged violation of MCL 168.485.” It contended “misleading ballot language led voters to approve an ordinance that would not have received approval otherwise.” The count found that even if it “were to concede that the wording on the ballot was, at the very least, incomplete in accurately representing the essence of the ordinance, it” was unnecessary to resolve the issue at this point. The “pivotal question now is not whether the ballot language was misleading; rather, it centers on whether this Court possesses the authority to invalidate the ordinance subsequent to its approval by voters, regardless of whether the language may be regarded as misleading.” The court was not presented with any such authority. “The absence of such authority likely stems from the fact that the appropriate time to contest the accuracy of the ballot language was prior to the election, when this dispute could have been addressed effectively.” The court determined that since the election has already taken place, the issue regarding the ballot language was “moot, as there is no feasible way to rectify any alleged past wrong.” It added that “even if it were determined that the language on the ballot was misleading, it would not change the fact that the language was presented on the ballot, the election was conducted, and a majority of voters approved the proposed ordinance. Plaintiff has not provided any legal authority supporting the assertion that a violation of MCL 168.485, assuming arguendo that one occurred, can be remedied post-election by invalidating the ordinance approved by voters.” The court concluded that while plaintiff and the dissent contended “the ballot wording misled voters, resulting in their approval of an ordinance that would not have otherwise passed, the facts remain unchanged.” The court noted that “if plaintiff believed the language presented on the ballot was misleading, it had the opportunity to address that concern prior to the election,” but there was no indication it “ever availed itself of this opportunity.” It found that at this point, “a challenge to the actual validity of the ordinance itself would be permissible,” but plaintiff’s ballot wording challenge “based on an alleged violation of MCL 168.485 is not such a substantive challenge to the validity of the ordinance itself. The township has thus not demonstrated that it is entitled to any appellate relief on this ground.” The court next held that the “ordinance’s content is directly related to the title it bears, indicating that plaintiff has not effectively established a viable title-body challenge, even if its claims are assumed to be true.” Plaintiff also argued “that the trial court erred in dismissing its claim that the ordinance conflicts with the MZEA.” But the court concurred with the trial court’s findings “that the township’s allegations do not identify any specific provision of the MZEA that the ordinance purportedly violates.”

Intentional infliction of emotional distress (IIED); Governmental immunity; Governmental function; Genesee Cnty Drain Comm’r v Genesee Cnty; The Whistleblowers’ Protection Act (WPA); MCL 15.362; Protected activity; Brown v Mayor of Detroit; Retaliatory action; Wurtz v Beecher Metro Dist; Causal connection; Detroit Police Department (DPD); Office of Chief Investigator (OCI)

In these consolidated appeals, the court held that (1) plaintiff-police officer did not properly plead her IIED claim in avoidance of governmental immunity but (2) she did establish a prima facie case of a WPA violation. The case arose from events after she “referred for investigation a citizen’s complaint against the commander of her police precinct” (G). As to her IIED claim, the court noted that it seemed she “adopted the same theory employed by the plaintiffs in” Genesee Cnty Drain Comm’r, which the court summarized “as ‘if a governmental agency commits an intentional tort, it cannot, by definition, be engaged in the exercise or discharge of a governmental function, as intentional torts ought not be regarded as a government function.’” The court rejected the theory there and did so again here. As in that case, “‘the alleged intentional torts committed by defendants were specific acts or decisions that occurred as part of the “general activity” of [their] government function.’” The court noted that it “‘is well established in Michigan that the management, operation, and control of a police department is a governmental function.’” There was testimony from multiple witnesses “that it was common practice to reassign an officer who was under investigation to another unit within the police department while the investigation was pending. Therefore, plaintiff’s reassignment fell within the management of the DPD as a governmental function. Because [she] did not present any evidence or argument to contradict this testimony, she failed to establish that her reassignment occurred outside the exercise or discharge of a governmental function.” But as to her WPA claim, she “was engaged in protected activity when she recorded [the] complaint and submitted it to the OCI, contrary to [G’s] demand that plaintiff not process the complaint.” In addition, she “established an adverse employment action as to the reassignment and loss of overtime.” The court further concluded that, viewing the “evidence in a light most favorable to plaintiff,” a genuine issue of material fact existed that the investigation into her alleged insubordinate behavior “was initiated in retaliation for her submission of” the citizen complaint. The court reversed the trial court’s denial of summary disposition to defendant as to the IIED claim but affirmed the denial of its summary disposition motion as to the WPA claim, and remanded.

Trip & fall on a step; Premises liability; Kandil-Elsayed v F&E Oil, Inc; Duty; Breach; Failure to warn; Dangerous condition; Blackwell v Franchi; Hilton v Barrington Group (Unpub)

Concluding there were genuine issues of material fact as to “(1) the visibility, or lack thereof, of the change in floor level; and (2) whether defendant exercised reasonable care to protect invitees from an unreasonable risk of harm[,]” the court reversed summary disposition for defendant. Plaintiff “fell while she was walking from a reception area to the service area at defendant’s automobile dealership when she tripped on a 4-inch step[.]” The court noted that because she relied on a failure to warn theory, “plaintiff need not establish that the step was defective or in disrepair.” It further noted that while whether “the condition was ‘unreasonably dangerous’ is no longer a relevant consideration,” she still had to show “that there was a ‘dangerous condition.’” There is case law indicating “that a non-visible step could be considered a dangerous condition.” The court determined that a question of fact existed “as to whether the step constituted a dangerous condition.” As to whether defendant exercised reasonable care, it was “undisputed that the room was well lit and that the edge of the step was painted yellow. Although those actions establish that defendant made some attempt to protect invitees, such an attempt is not necessarily sufficient to provide the requisite level of protection. In fact, there is evidence to suggest that those actions were insufficient. Plaintiff testified that she saw the yellow line, but interpreted it as providing a ‘traffic guide,’ not as indicating that there was a drop-off. Relatedly, [her] expert observed that a yellow line is primarily used to mark an aisleway or traffic lane, and there is no dispute that cars were driven on the service-area side of the yellow line. Moreover, there was evidence that plaintiff was not the first person to fall in that area.” And a photo she submitted “lent support to plaintiff’s argument that the floor appeared to be the same level on both sides of the yellow line.” Given that there was “a genuine issue of material fact whether defendant exercised reasonable care to protect invitees from an unreasonable risk of harm, there is a genuine issue of material fact as to whether the danger was open and obvious.” Further, the evidence that others “had fallen on the step can support plaintiff’s claim that defendant should have anticipated harm to its invitees, which further establishes that remaining questions of fact render summary disposition inappropriate.” Remanded.

Auto negligence; Noneconomic loss under the No-Fault Act (NFA); MCL 500.3135; A “serious impairment of body function”; McCormick v Carrier; Patrick v Turkelson; Objectively manifested impairment; Plaintiff’s ability to lead her normal life

Holding that the trial court did not err in concluding plaintiff failed to establish “an objectively manifested impairment” or that her “alleged impairments affected her ability to lead her normal life[,]” the court affirmed summary disposition for defendant in this auto negligence case. Plaintiff sought noneconomic damages under the NFA. As to the first element required to establish a serious impairment of body function, “an objectively manifested impairment, [she] testified to subjective manifestations of pain, and her medical records describe her potential injuries and reports of pain. An objectively manifested impairment is one evidenced by actual symptoms or conditions observable by someone other than the plaintiff. Here, plaintiff presented only allegations of injuries that she asserts form the basis of her pain, but did not support these allegations with evidence of a condition or symptom objectively observable, for example, by the healthcare providers treating her alleged injuries.” Her physical therapy records indicated that while “she initially reported difficulty performing various daily activities, she had no observable impairment of her range of motion or her gait. Moreover, after a handful of physical therapy sessions she reported that she no longer was in pain, had achieved her physical therapy objectives, could stand, sit, walk, do housework, and participate in her hobbies with no or little difficulty, and chose to end physical therapy.” In addition to concluding plaintiff did not show an objectively manifested impairment, the trial court determined that she failed to “establish the third element, that the alleged impairment affected [her] general ability to lead a normal life. Plaintiff described that she experienced daily pain, that she changed jobs because of the accident, that she now was limited in participating in her prior hobby of cooking, and was completely unable to participate in her prior hobbies of doing hair and lashes.” But her physical therapy records indicated “she reported no pain when she left therapy, that she could stand, sit, and walk without difficulty, and that her range of motion was restored.” She also took three trips after the collision and moved out of state. The court found that “the trial court did not impermissibly consider the weight and credibility of the evidence[.]”

Termination under § 19b(3)(c)(i); Child’s best interests

Holding that § (c)(i) existed and that the trial court did not clearly err when it held that the termination of respondent-mother’s parental rights was in child-LF’s best interests, the court affirmed. Respondent did “not contest that 182 or more days have elapsed since the issuance of an initial dispositional order in this case.” However, she contended “that she made progress toward the conditions that led to adjudication and she was not given enough time to proceed through her case service plan.” The primary conditions that led to adjudication were her “inability to recognize the seriousness of LF’s medical conditions and her inability to properly take care of LF. Other conditions included respondent’s lack of suitable housing, employment, and transportation. Respondent was ordered to comply with a case service plan, which she partially completed, to rectify these issues. However, she did not benefit from these services.” Also, her “failure to develop these skills presented a risk to LF’s mental and physical well-being.” Respondent asserted “that the trial court should have given more weight to the testimony of [R], who testified at a [5/24] dispositional hearing. [R] is an infant mental health and Baby Court therapist who worked with respondent and LF since [10/23]. She testified that respondent made significant emotional progress and did not agree with the goal change to adoption at the time of that hearing.” The trial court’s decision to disregard this “testimony was a credibility determination that we decline to address anew on appeal.” Respondent also asserted “that not enough consideration was given to LF’s placement in a supported living situation with respondent. However, the trial court expressly considered this option and deemed it unfeasible.” The court found that ultimately, “LF required daily medical assistance to stay alive. The record evidence established that respondent did not understand the severity of LF’s medical conditions and did not develop the skills to care for LF’s basic needs, let alone her extensive medical needs at the time of the termination hearing. This presented a high risk to LF’s safety and well-being.” Likewise, respondent did “not dispute that she still lacked proper housing and transportation at the time of termination.” Given her “failure to benefit from the few services that she complied with throughout the approximately 10 months of proceedings, respondent’s caseworker did not believe that respondent would participate in services and rectify the conditions that led to adjudication if given additional time.” Thus, the trial court did not clearly err by holding “that there was no reasonable likelihood that respondent would rectify the conditions that led to adjudication within a reasonable time.”

Jurisdiction; Standing of a legally incapacitated individual; MCL 700.1105(i); A guardian’s authority; MCL 700.5306(1); MCL 700.5314; In re Guardianship of Malloy; Principle that a legally incapacitated individual is precluded from bringing lawsuits on his or her own behalf; MCR 2.201(E); Rule prohibiting an attorney from representing multiple clients when the representation of one client is directly adverse to, or may materially limit, the attorney’s representation of another client; MRPC 1.7; Killingbeck v Killingbeck; Deference to the Michigan Attorney Grievance Commission (MAGC) on matters of attorney discipline; MCR 9.108(A)

The court held that appellant (a legally incapacitated adult) lacked standing to appeal on her own behalf, and her sister (Melissa) lacked authority to hire an attorney (Strehle) to represent her. It also admonished Strehle for his “lack of professional integrity in seeking to represent both Melissa and appellant” in the probate court, and for his “cavalier and dismissive comments” about the situation at oral argument. The probate court in these consolidated cases: (1) approved the successor trustee’s 12th annual account, (2) appointed a second successor trustee, (3) allowed the 14th and final annual account, and (4) granted the petition to approve the payment of a retainer fee. On appeal, the court determined that appellant’s status as a legally protected individual indicated she did “not have standing to bring this appeal on her own behalf, and instead should have done so through her legal guardian.” In addition, Melissa had “no legal authority to hire an attorney for appellant. Only appellant’s guardian” had that authority. Finally, the court admonished Strehle “for his lack of professional integrity in seeking to represent both Melissa and appellant in the court below, and for his cavalier and dismissive comments when asked by this panel at oral argument to explain the propriety of his working relationship with appellant and Melissa.” It noted Strehle’s “bald claims that no conflict existed do not inspire confidence, nor do they indicate [he] met his duty to comply with MRPC 1.7. There is no evidence that he consulted with Melissa and appellant’s legal guardian about the potential conflict, or that Melissa and appellant’s guardian consented to dual representation.” The court was “gravely concerned that Strehle may have violated MRPC 1.7. However,” it acknowledged “that ‘a breach of the MRPC merely constitutes grounds for invoking the attorney disciplinary process.” It deferred to the MAGC in that regard. Dismissed for lack of jurisdiction.