Free Speech Clause; Government speech; Private speech; Designated public forum; Forum closure; Shurtleff v City of Boston; Establishment Clause; Secular purpose; Kennedy v Bremerton Sch Dist; Equal Protection Clause; Forfeiture; Summary judgment; Fed R Civ P 56(a)

[This appeal was from the ED-MI.] The court held that defendant-Hamtramck’s flagpole resolution did not violate plaintiffs’ free-speech and Establishment Clause rights, and that they forfeited their equal-protection claim. Plaintiffs, former members of the city’s Human Relations Commission (HRC), sued after the City Council limited flags on city-owned flagpoles to the American, Michigan, Hamtramck, POW, and national flags representing the City’s international character, and later removed plaintiffs from the HRC after they raised a Pride flag in defiance of the resolution. The district court granted defendants summary judgment. On appeal, the court first assumed without deciding that the flagpoles had previously been a designated public forum, but held that the City closed the forum to private speech. The resolution created a “tightly controlled, closed-list system of flag selection,” and nothing in it allowed public participation in choosing flags. Thus, the flagpoles became a forum for government speech. The court next rejected the Establishment Clause claim. Even assuming a secular-purpose inquiry survived Kennedy, plaintiffs failed to show the City’s stated purpose of reserving the flagpoles for government speech and neutrality was “a sham to advance religion.” The court reasoned one councilmember’s statement about respecting religion during an hours-long hearing and the mayor’s deposition testimony about Islam did not show the resolution’s “primary purpose was to advance religion.” Finally, the court held that plaintiffs forfeited their equal-protection claim by failing to develop it below or on appeal. Affirmed.

Americans with Disabilities Act (ADA); Title II; 42 USC § 12132; Rehabilitation Act; 29 USC § 794(a); Foster parent license; Reasonable accommodation; Fundamental alteration; 28 CFR § 35.130(b)(7)(i); Individualized inquiry; PGA Tour, Inc v Martin; Sovereign immunity; Eleventh Amendment; Ex parte Young; Equal protection; Disability discrimination; Rational basis review; Summary judgment; Fed R Civ P 56(c)

[This appeal was from the ED-MI.] The court held that defendants were entitled to summary judgment on plaintiff’s ADA, Rehabilitation Act, and equal-protection claims because her proposed foster-care accommodation was not reasonable on this record. Plaintiff, a quadriplegic who uses a wheelchair, applied to become a foster parent in Michigan, but the state administratively closed her application after concluding she could not physically provide necessary care. The district court granted summary judgment to defendants. On appeal, the court first noted that categorically excluding people with severe physical disabilities from foster parenting “may violate” the ADA and Rehabilitation Act because those laws require an individualized assessment of whether reasonable accommodation would allow the applicant to perform parenting responsibilities. It also held that plaintiff sufficiently requested accommodation by proposing to act as the “brains of her operation” while aides would “act as her hands.” The court rejected defendants’ argument that each aide necessarily had to be separately licensed, noting the state had not shown Michigan’s scheme required that result and had conceded “that a quadriplegic could plausibly qualify as a solo foster parent.” But the court held that plaintiff’s existing “patchwork of formal and informal assistance” was unreasonable because her no-fault-funded aides were not allowed to assist others, there was no evidence those aides were “willing to undertake physical caregiving responsibilities for foster children,” and her informal support network lacked contracts, schedules, or documentation. It emphasized plaintiff was not barred from supplementing her application with “a more comprehensive third-party assistance plan.” The court also rejected her facial challenge because Michigan had licensed other applicants with disabilities, and it rejected her equal protection claim because defendants’ actions were rationally related to the legitimate purpose of ensuring safe foster homes. Affirmed.

Free Speech Clause; Government speech; Private speech; Designated public forum; Forum closure; Shurtleff v City of Boston; Establishment Clause; Secular purpose; Kennedy v Bremerton Sch Dist; Equal Protection Clause; Forfeiture; Summary judgment; Fed R Civ P 56(a)

[This appeal was from the ED-MI.] The court held that defendant-Hamtramck’s flagpole resolution did not violate plaintiffs’ free-speech and Establishment Clause rights, and that they forfeited their equal-protection claim. Plaintiffs, former members of the city’s Human Relations Commission (HRC), sued after the City Council limited flags on city-owned flagpoles to the American, Michigan, Hamtramck, POW, and national flags representing the City’s international character, and later removed plaintiffs from the HRC after they raised a Pride flag in defiance of the resolution. The district court granted defendants summary judgment. On appeal, the court first assumed without deciding that the flagpoles had previously been a designated public forum, but held that the City closed the forum to private speech. The resolution created a “tightly controlled, closed-list system of flag selection,” and nothing in it allowed public participation in choosing flags. Thus, the flagpoles became a forum for government speech. The court next rejected the Establishment Clause claim. Even assuming a secular-purpose inquiry survived Kennedy, plaintiffs failed to show the City’s stated purpose of reserving the flagpoles for government speech and neutrality was “a sham to advance religion.” The court reasoned one councilmember’s statement about respecting religion during an hours-long hearing and the mayor’s deposition testimony about Islam did not show the resolution’s “primary purpose was to advance religion.” Finally, the court held that plaintiffs forfeited their equal-protection claim by failing to develop it below or on appeal. Affirmed.

Public employee discharge; Pre-deprivation procedural due process; Rights waiver; Morrison v Warren; Qualified immunity; Violation of clearly established law; Cleveland Bd of Educ v Loudermill; Appellate jurisdiction; Interlocutory appeal; “Understanding of Unclassified Appointment” (the MOU); Collective bargaining agreement (CBA)

The court held that defendant-city manager (Long) was not entitled to qualified immunity for plaintiff-former Fire Chief’s (Washington) claim for pre-deprivation violations of his procedural due process rights. Under defendant-Cincinnati’s City Charter, “once a Fire Chief serves six months, he can be terminated only for cause, which means he has a right to a pre-termination hearing under binding—and clearly established—precedent.” Washington had attained for-cause status before he was terminated. But defendants argued that regardless of the Charter provisions, “it could not have been clear that [he] had for-cause protection after he signed” a document referred to as the MOU. On appeal, the court considered “the MOU only in the limited capacity of what a reasonable official in Long’s position would have understood about Washington’s status based on the fact that he signed the MOU.” Under Morrison, it “is clearly established that ‘clear and unmistakable language . . . is necessary to waive procedural due process rights.’” The court concluded that the MOU fell “short of that standard. Like the [CBA] in Morrison, the MOU contains no references to the Fourteenth Amendment or Washington’s due process rights. The MOU likewise makes no mention of the Charter or any rights [he] had under it.” Defendants emphasized the MOU provided “that ‘[t]he position of Fire Chief is an unclassified position’ and unclassified employees ‘serve at the pleasure of the appointing authority and can be dismissed from employment without cause at any time.’” But the court found it “difficult to call this language a ‘clear and unmistakable’ waiver when it contains no express indication that Washington is giving up anything[.]” It concluded that a “reasonable official in Long’s position (a) would have known that Washington, in his position as Fire Chief under the Charter, accrued for-cause protection following his six-month probationary period; and (b) would not have presumed the MOU operated as a waiver of the rights afforded by that status. Long’s failure to provide [him] with any pre-termination process before firing him . . . was a violation of clearly established law” pursuant to Loudermill. Affirmed.

Sufficiency of evidence; CSC I; MCL 750.520b(2)(b); Sexual penetration; MCL 750.520a(r); Fellatio; People v Johnson; Ineffective assistance of counsel; Strickland v Washington; Ginther hearing testimony; Conflict of interest; MRPC 1.7; MRPC 1.10; Venue; MCL 767.45(1)(c); OV 11 (MCL 777.41); Criminal sexual penetrations; Presentence investigation report (PSIR) correction; Guardian ad litem (GAL)

The court held that sufficient evidence supported defendant’s CSC convictions and that defendant failed to establish ineffective assistance, but the CSC II sentences had to be vacated because the record did not show whether they were based on inaccurate OV 11 scoring. He was convicted of two counts each of CSC I and CSC II based on the victim’s testimony about multiple incidents of sexual abuse. The trial court denied defendant’s posttrial motions after a Ginther hearing. On appeal, the court first held that the victim’s testimony that defendant “put his mouth on” the victim’s penis was sufficient to prove sexual penetration for Count 2 because, unlike a mere “kissed” description, the testimony “reasonably conveyed” that defendant placed his mouth over or around the victim’s penis. The court next held that defendant failed to establish ineffective assistance. Counsel’s decisions to question the victim about an uncharged motel incident, avoid drawing attention to brief diagnosis and hearsay testimony, omit erectile-dysfunction evidence, and pursue one “core argument” that the victim was not credible and defendant lacked opportunity were reasonable strategic choices. The court also held that any conflict from the public defender’s prior GAL representation of the victim did not adversely affect counsel’s performance. It further held that venue was sufficiently supported for Counts 4 and 5. But the court held that OV 11 was improperly scored at 50 points for Count 2 because the only penetration arising out of that offense was the penetration forming the CSC I conviction, which could not be scored. The error was harmless as to the CSC I sentences because of the mandatory minimum, but the CSC II sentences were vacated because the record did not show whether they rested on inaccurate information. Affirmed in part, vacated in part, and remanded.

Pretrial detention; Bail Reform Act; 18 USC § 3142(e)(1); Statutory rebuttable presumption; § 3142(e)(3)(D); Forced labor; § 1589(d); Conspiracy to commit forced labor; § 1594(b); Review of detention order; § 3145(b); Appeal from detention order; § 3145(c); Motion for reconsideration; ED MI LR 7.1(h)(1) & (2); Miller v William Beaumont Hospital; Blackwell v Nocerini; Dangerousness factors; § 3142(g); Clear & convincing evidence; United States v Stone; First Amendment; Religious conduct; United States v Greene; Conditions of release

[This appeal was from the ED-MI.] The court held that defendant’s appeal from the pretrial detention order was timely but that no condition or combination of conditions would reasonably assure community safety if he were released. Defendant, the leader of Kingdom of God Global Church, was indicted on forced-labor, forced-labor-conspiracy, and money-laundering-conspiracy charges. A magistrate judge ordered him detained, and the district court denied his motion to revoke detention and later denied reconsideration. On appeal, the court first rejected the government’s timeliness argument. It reasoned that under Nocerini, ED-MI LR 7.1(h)(1) “cover[s] only an order completing the case,” while detention orders are final and appealable but do not terminate the criminal case. Thus, the reconsideration motion tolled the appeal period. The court next held that the § 3142(g) factors supported detention. Although defendant produced “some” evidence rebutting the statutory presumption, that presumption remained relevant, and the indictment alleged coercion through spiritual threats, physical violence, sleep and food deprivation, sexual exploitation, and threats against workers. The court rejected defendant’s First Amendment challenge because the detention ruling was based on “charged criminal conduct,” not religious belief, and “‘religious conduct remains subject to regulation for the protection of society.’” It also held that the district court did not err by crediting the government’s violence proffer, and release conditions would not adequately address the danger because the record showed defendant routinely used others to “coerce, threaten, and punish his victims.” Affirmed.

Public employee discharge; Pre-deprivation procedural due process; Rights waiver; Morrison v Warren; Qualified immunity; Violation of clearly established law; Cleveland Bd of Educ v Loudermill; Appellate jurisdiction; Interlocutory appeal; “Understanding of Unclassified Appointment” (the MOU); Collective bargaining agreement (CBA)

The court held that defendant-city manager (Long) was not entitled to qualified immunity for plaintiff-former Fire Chief’s (Washington) claim for pre-deprivation violations of his procedural due process rights. Under defendant-Cincinnati’s City Charter, “once a Fire Chief serves six months, he can be terminated only for cause, which means he has a right to a pre-termination hearing under binding—and clearly established—precedent.” Washington had attained for-cause status before he was terminated. But defendants argued that regardless of the Charter provisions, “it could not have been clear that [he] had for-cause protection after he signed” a document referred to as the MOU. On appeal, the court considered “the MOU only in the limited capacity of what a reasonable official in Long’s position would have understood about Washington’s status based on the fact that he signed the MOU.” Under Morrison, it “is clearly established that ‘clear and unmistakable language . . . is necessary to waive procedural due process rights.’” The court concluded that the MOU fell “short of that standard. Like the [CBA] in Morrison, the MOU contains no references to the Fourteenth Amendment or Washington’s due process rights. The MOU likewise makes no mention of the Charter or any rights [he] had under it.” Defendants emphasized the MOU provided “that ‘[t]he position of Fire Chief is an unclassified position’ and unclassified employees ‘serve at the pleasure of the appointing authority and can be dismissed from employment without cause at any time.’” But the court found it “difficult to call this language a ‘clear and unmistakable’ waiver when it contains no express indication that Washington is giving up anything[.]” It concluded that a “reasonable official in Long’s position (a) would have known that Washington, in his position as Fire Chief under the Charter, accrued for-cause protection following his six-month probationary period; and (b) would not have presumed the MOU operated as a waiver of the rights afforded by that status. Long’s failure to provide [him] with any pre-termination process before firing him . . . was a violation of clearly established law” pursuant to Loudermill. Affirmed.

Americans with Disabilities Act (ADA); Title II; 42 USC § 12132; Rehabilitation Act; 29 USC § 794(a); Foster parent license; Reasonable accommodation; Fundamental alteration; 28 CFR § 35.130(b)(7)(i); Individualized inquiry; PGA Tour, Inc v Martin; Sovereign immunity; Eleventh Amendment; Ex parte Young; Equal protection; Disability discrimination; Rational basis review; Summary judgment; Fed R Civ P 56(c)

[This appeal was from the ED-MI.] The court held that defendants were entitled to summary judgment on plaintiff’s ADA, Rehabilitation Act, and equal-protection claims because her proposed foster-care accommodation was not reasonable on this record. Plaintiff, a quadriplegic who uses a wheelchair, applied to become a foster parent in Michigan, but the state administratively closed her application after concluding she could not physically provide necessary care. The district court granted summary judgment to defendants. On appeal, the court first noted that categorically excluding people with severe physical disabilities from foster parenting “may violate” the ADA and Rehabilitation Act because those laws require an individualized assessment of whether reasonable accommodation would allow the applicant to perform parenting responsibilities. It also held that plaintiff sufficiently requested accommodation by proposing to act as the “brains of her operation” while aides would “act as her hands.” The court rejected defendants’ argument that each aide necessarily had to be separately licensed, noting the state had not shown Michigan’s scheme required that result and had conceded “that a quadriplegic could plausibly qualify as a solo foster parent.” But the court held that plaintiff’s existing “patchwork of formal and informal assistance” was unreasonable because her no-fault-funded aides were not allowed to assist others, there was no evidence those aides were “willing to undertake physical caregiving responsibilities for foster children,” and her informal support network lacked contracts, schedules, or documentation. It emphasized plaintiff was not barred from supplementing her application with “a more comprehensive third-party assistance plan.” The court also rejected her facial challenge because Michigan had licensed other applicants with disabilities, and it rejected her equal protection claim because defendants’ actions were rationally related to the legitimate purpose of ensuring safe foster homes. Affirmed.

No-fault insurance; Personal protection insurance (PIP) benefits; Priority; Resident relative; MCL 500.3114(1); Domicile; Grange Ins Co of MI v Lawrence; Michigan Assigned Claims Plan (MACP); MCL 500.3172(1)(a) & (b); Insurer of last resort; Bronner v City of Detroit; Due diligence; Griffin v Trumbull Ins Co; Policy rescission; Bazzi v Sentinel Ins Co

The court held that plaintiff was not eligible for MACP benefits because a higher-priority Progressive policy applied to her as a resident relative of the named insured. Plaintiff was injured while driving her sister’s vehicle, sought benefits under the sister’s Progressive policy, and later applied to the MACP after Progressive sought additional information and allegedly denied the claim. Defendant was assigned the MACP claim and denied services because Progressive was a higher-priority insurer. The trial court granted defendant summary disposition. On appeal, the court held that defendant presented documentary evidence showing plaintiff and her sister lived at the same address, plaintiff admitted she was domiciled with her sister, and her resident-relative status was “not contested.” The court rejected plaintiff’s claim that she was entitled to MACP benefits because Progressive did not actually provide coverage. MCL 500.3114 requires only that the policy “applies” to a domiciled relative, and defendant did not have to prove Progressive would accept the claim or that benefits were received. The court also noted that Progressive had not rescinded the policy, the unsigned voicemail transcript did not create a material factual issue, and any dispute over the incorrect policy address was between plaintiff and Progressive. Affirmed.

Set aside of a default; MCR 2.603(D)(1); Shawl v Spence Bros, Inc; “Good cause”; Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, LLC; Sufficiency of the default notice; MCR 2.603(A)(2); Whether a negligence claim actually sounded in breach of contract; Loweke v Ann Arbor Ceiling & Partition Co, LLC; Duty breach as to installation of an HVAC system

The court held that the trial court did not abuse its discretion in setting aside the default against third-party defendant-Strickly Heating and Cooling or err in granting Strickly summary disposition of defendants/third-party plaintiffs-Ellises’ negligence claim. The Ellises contracted with plaintiff to perform construction work on their home. Plaintiff subcontracted Strickly to install and restore the home’s HVAC system. On appeal, the court first concluded that the trial court did not abuse its discretion in ruling that good cause was established for setting aside the default. The “trial court was presented with not one, but two defaulted parties who provided affidavits that they relied on” assertions by plaintiff’s owner that he would take care of the lawsuit, “did not receive notice of the default entries, and promptly took action to defend the lawsuit upon learning of the Ellises’ motion for default judgment. Based on the evidence presented, the trial court properly considered the totality of the circumstances to determine that Strickly’s request to set aside the default was supported by good cause. This determination did not fall outside the range of reasonable or principled outcomes.” The court further found that it was “implicit in the trial court’s ruling that Strickly established a meritorious defense. To the extent that the trial court erred by failing to make its finding explicit, reversal is not required because its determination was supported by the record.” The court next held that the trial court did not err in determining “the Ellises’ claim sounded in contract and that Strickly owed” them no duty that would support their negligence claim. It did not owe them “an independent legal duty that was separate from its contractual obligations[.]” The court further concluded that they did not raise a genuine issue of material fact as to “whether Strickly breached its duty by installing the HVAC system in an unworkmanlike manner or was unjustly enriched by receiving payment for faulty work.” Affirmed.

Set aside of a default; MCR 2.603(D)(1); Shawl v Spence Bros, Inc; “Good cause”; Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, LLC; Sufficiency of the default notice; MCR 2.603(A)(2); Whether a negligence claim actually sounded in breach of contract; Loweke v Ann Arbor Ceiling & Partition Co, LLC; Duty breach as to installation of an HVAC system

The court held that the trial court did not abuse its discretion in setting aside the default against third-party defendant-Strickly Heating and Cooling or err in granting Strickly summary disposition of defendants/third-party plaintiffs-Ellises’ negligence claim. The Ellises contracted with plaintiff to perform construction work on their home. Plaintiff subcontracted Strickly to install and restore the home’s HVAC system. On appeal, the court first concluded that the trial court did not abuse its discretion in ruling that good cause was established for setting aside the default. The “trial court was presented with not one, but two defaulted parties who provided affidavits that they relied on” assertions by plaintiff’s owner that he would take care of the lawsuit, “did not receive notice of the default entries, and promptly took action to defend the lawsuit upon learning of the Ellises’ motion for default judgment. Based on the evidence presented, the trial court properly considered the totality of the circumstances to determine that Strickly’s request to set aside the default was supported by good cause. This determination did not fall outside the range of reasonable or principled outcomes.” The court further found that it was “implicit in the trial court’s ruling that Strickly established a meritorious defense. To the extent that the trial court erred by failing to make its finding explicit, reversal is not required because its determination was supported by the record.” The court next held that the trial court did not err in determining “the Ellises’ claim sounded in contract and that Strickly owed” them no duty that would support their negligence claim. It did not owe them “an independent legal duty that was separate from its contractual obligations[.]” The court further concluded that they did not raise a genuine issue of material fact as to “whether Strickly breached its duty by installing the HVAC system in an unworkmanlike manner or was unjustly enriched by receiving payment for faulty work.” Affirmed.

Termination under § 19b(3)(c)(i); Distinguishing In re Mason; In re Pops; Child’s best interests; In re Sanborn; Relative placement; In re Gonzalez/Martinez

Holding that the trial court did not clearly err in finding that § (c)(i) was established by clear and convincing evidence, or in concluding that terminating respondent-father’s parental rights was in the child’s (MDF) best interests, the court affirmed the termination order. Respondent was convicted of a Michigan drug felony and facing federal drug charges at the time of the proceedings. Unlike the respondent in Mason, he “was provided with a service plan and the goal was reunification until [6/25] when the supplemental petition was authorized.” And the court noted that he “participated in services and made progress with some elements of his treatment plan when he had the opportunity.” However, he “was noncompliant with critical elements of his treatment plan, including procurement and maintenance of a legal source of income and suitable housing.” He was arrested in 12/24 on the federal “charges, violating his parole conditions on his Michigan” conviction. While he “made some progress in his treatment plan, the conditions that led to the adjudication—respondent’s incarceration and inability to provide for MDF—continued to exist. As” in Pops, his “criminal activity was a concern at the beginning of the case and at termination.” As to MDF’s best interests, the existence of a bond and respondent’s parenting time attendance history weighed against termination. But his “repeated incarcerations for the same or similar conduct” weighed in favor of it because they negatively affected “his ability to provide the stability, permanence, and finality MDF deserves in a reasonable time. Further, there appear to be many advantages to MDF’s maternal aunt’s home in comparison to respondent’s current environment.” MDF reported that he enjoyed living with her and wanted to stay with her. There was testimony he was “thriving” there, and she was willing and able to adopt him. While a relative placement generally weighs against termination, several best-interests factors strongly supported “the trial court’s conclusion that [it] was in MDF’s best interests.”

Whether reasonable efforts were required; MCL 712A.19a(2)(c); Aggravated circumstances; MCL 722.638(1)(a)(iii); Americans with Disabilities Act (ADA); ADA accommodations; In re Hicks/Brown; Child’s best interests; Relative placement; In re Olive/Metts

The court held that reasonable efforts toward reunification were not required, that respondents failed to show an ADA-based defect warranting relief, and that termination was in the children’s best interests. Respondent-mother and respondent-father pled no contest to jurisdiction and statutory grounds for termination after evidence showed serious physical abuse, malnutrition, domestic violence, and prior terminations. The trial court found aggravated circumstances, suspended contact after respondents arrived at the placement while the father was drunk and armed, and terminated their parental rights after a best-interest hearing. On appeal, the court first held that DHHS was not required to make reasonable efforts because both parents had prior terminations and failed to rectify the conditions, and the trial court made a judicial determination that the children were subjected to “torture and battery.” It further held that, even assuming efforts were required, the mother waived the ADA issue by omitting it from her questions presented, and the father failed to identify services that would have accommodated his disability beyond those offered. The court noted that workers provided transportation assistance, “overexplain[ed] everything,” helped with paperwork, and offered services consistent with the father’s evaluation. The court next held that termination was in the children’s best interests. The mother showed “poor decision-making,” hit the children during parenting time, failed to resolve domestic violence, and lacked a meaningful bond with two of the children. The father had “violent tendencies,” failed to accept responsibility, and had a pattern of domestic violence and poor parenting. The children were improving in a relative placement, who wished to adopt them and provide permanence with the siblings together. Affirmed.