42 USC § 1983 action alleging defendants used an invalid detainer warrant to prevent plaintiff’s release on parole; Fourteenth Amendment right to due process; Whether plaintiff had a protected constitutional right to be released on parole; Qualified immunity; Whether defendants violated a “clearly established” statutory or constitutional right; Monell v Department of Soc Servs claim against defendant-county

The court affirmed the dismissal of plaintiff-Hester’s constitutional claims based on his allegedly late parole release where there was no “liberty interest” in obtaining parole under the applicable state law and “his effort to cast his claim as one analogous to over-detention” failed. Further, defendants-law enforcement officers were entitled to qualified immunity where they did not violate a “clearly established right” and his Monell claim against defendant-County also failed. Hester was required to remain in jail an extra four months after being eligible for parole due to a detainer lodged by Chester County. He claimed that defendants “knowingly or recklessly used an invalid detainer warrant to prevent his release on parole, and in doing so violated his right to due process under the Fourth and Fourteenth Amendments” as well as Tennessee law. On appeal, the court first addressed his Fourteenth Amendment due process claim based the county defendants’ alleged invalid detainer. It held that Hester lacked a protected right to be released on parole, foreclosing his due process claim. He argued that he was “seeking redress for a violation of a liberty interest in release following a grant of parole rather than a liberty interest in obtaining a grant of parole.” But the court rejected this argument. Hester “acknowledge[d] that an inmate can claim a constitutional right to the grant of parole only if state law creates a specific entitlement to it[,]” and the State of Tennessee grants no such right. The court saw “no principled way to distinguish Hester’s case from others in which courts have rejected inmates’ claims to a liberty interest in parole release absent state law creating such an interest.” It added that, even if he “somehow had a liberty interest, he points to no caselaw that would have placed county officials on notice that their actions in causing a delay in release after the issuance of a” certificate of parole would violate this interest. And his Monell claim against the County failed where he was unable to show a constitutional violation.

Due process claims under 42 USC § 1983; Sovereign immunity; Procedural due process; A state actor’s defamatory statements; “Stigma plus” test; Substantive due process; The “shocks-the-conscience” test; “Federal confidentiality” rule

The court held that plaintiff-Pichiorri’s due process claims against defendant-Ohio State Board of Trustees were barred by sovereign immunity and that her due process claims against defendants-Ohio State officials in their official capacities failed on the merits. As to the procedural due process claim, her “complaint did not plausibly assert a ‘liberty’ interest under” the stigma-plus test. And she could not “pursue a ‘defamation’ claim under the guise of substantive due process.” Pichiorri published several articles while working as a research scientist at Ohio State. Years later, “a university committee found that she had committed research misconduct in some” instances, and it informed her employer and the relevant publications. She sued under § 1983, alleging among other things federal due process claims. The district court dismissed the complaint, ruling that “sovereign immunity shielded some of the university defendants from this suit and that” her other due process claims failed on the merits. On appeal, the court first held that sovereign immunity barred all claims against the Board of Trustees and all state claims against the officials in their official capacities. As to her procedural due process claims against Ohio State officials, the court explained that “people do not have a liberty interest in their ‘reputation’ alone[.]” Applying the stigma-plus test, it noted that she was unable to allege that the officials “defamed her ‘in the course of’ firing her from the university” given that she had already left her employment there. And she did not identify any “change in ‘a right or status previously recognized by state law’ apart from the reputational harm.” As to her substantive due process claims, her “failure to identify a liberty interest even worthy of procedural protection goes a long way toward showing that the challenged conduct ‘does not shock the conscience’ under substantive due process.” The court also found that her “theory would constitutionalize the common law of defamation.” Finally, the uncodified “federal confidentiality rule” could not save her claim. Case law has confined it to situations where “the government’s disclosure of ‘personal information could lead to bodily harm’ or when the disclosed information contains ‘sexual, personal, and humiliating’ details.” Affirmed.

42 USC § 1983 action alleging defendants used an invalid detainer warrant to prevent plaintiff’s release on parole; Fourteenth Amendment right to due process; Whether plaintiff had a protected constitutional right to be released on parole; Qualified immunity; Whether defendants violated a “clearly established” statutory or constitutional right; Monell v Department of Soc Servs claim against defendant-county

The court affirmed the dismissal of plaintiff-Hester’s constitutional claims based on his allegedly late parole release where there was no “liberty interest” in obtaining parole under the applicable state law and “his effort to cast his claim as one analogous to over-detention” failed. Further, defendants-law enforcement officers were entitled to qualified immunity where they did not violate a “clearly established right” and his Monell claim against defendant-County also failed. Hester was required to remain in jail an extra four months after being eligible for parole due to a detainer lodged by Chester County. He claimed that defendants “knowingly or recklessly used an invalid detainer warrant to prevent his release on parole, and in doing so violated his right to due process under the Fourth and Fourteenth Amendments” as well as Tennessee law. On appeal, the court first addressed his Fourteenth Amendment due process claim based the county defendants’ alleged invalid detainer. It held that Hester lacked a protected right to be released on parole, foreclosing his due process claim. He argued that he was “seeking redress for a violation of a liberty interest in release following a grant of parole rather than a liberty interest in obtaining a grant of parole.” But the court rejected this argument. Hester “acknowledge[d] that an inmate can claim a constitutional right to the grant of parole only if state law creates a specific entitlement to it[,]” and the State of Tennessee grants no such right. The court saw “no principled way to distinguish Hester’s case from others in which courts have rejected inmates’ claims to a liberty interest in parole release absent state law creating such an interest.” It added that, even if he “somehow had a liberty interest, he points to no caselaw that would have placed county officials on notice that their actions in causing a delay in release after the issuance of a” certificate of parole would violate this interest. And his Monell claim against the County failed where he was unable to show a constitutional violation.

Procedural due process violation claim under 42 USC § 1983; Revocation of a tow permit without a hearing; Motion to strike a witness’s declaration; Whether the word “belief” prohibited a finding that the witness testified from “personal knowledge”; FedRCivP 56(c)(4); Award of only “nominal damages”; Carey v Piphus; Detroit Police Department (DPD)

[This appeal was from the ED-MI.] The court held that while defendant-City of Detroit violated plaintiff-Nationwide Recovery’s procedural due-process rights by revoking its towing permit without a hearing, the district court did not err by awarding Nationwide only “nominal damages” because its “conduct justified the termination” and any due-process violation did not “cause” Nationwide’s loss. Nationwide operated under a permit from the City’s Board of Police Commissioners that allowed them to charge for recovering stolen vehicles. The City suspended the permit without a hearing after suspecting that at least one Nationwide driver was obtaining location information from the car thieves. This conclusion was supported by a DPD investigation, led by then-Lieutenant P. Nationwide sued the City under § 1983, alleging violation of its due-process rights by suspending its permit without a hearing. The district court ruled Nationwide was “deprived of its property interest without the required hearing,” but eventually awarded it only nominal damages of one dollar. On appeal, Nationwide challenged the district court’s denial of its motion to strike P’s declaration “that the Board would have terminated the permit even if there had been a hearing.” The court held that the district court had discretion to rule that P’s use of the words “‘[i]t is my belief ’” regarding the permit’s likely termination did not violate “the personal knowledge requirement of Rule 56(c)(4).” And the fact that there were 11 members of the Board did not make P’s “testimony conjectural. Again, the district court pointed to the City’s record evidence, which showed that [P’s] role as the supervisor of the DPD towing program had familiarized him with the Board’s approach to permits.” The court added that “Rule 56(c)(4)’s requirement of personal knowledge doesn’t exclude all opinion testimony in declarations.” As to the nominal damages award, the court rejected Nationwide’s argument that if there had been a hearing, the City would have only been able to consider the evidence that was available at the date of termination. The “inquiry into whether a deprivation was justified need not be artificially limited to what the City could prove on the date of termination.” It noted that it was “the failure to provide this post-deprivation hearing—not the termination itself—that Nationwide” was challenging. And the court held that the evidence that “would have been presented if the Board had conducted a timely hearing . . . would have been sufficient grounds to terminate Nationwide’s permit.” Affirmed.

Due process claims under 42 USC § 1983; Sovereign immunity; Procedural due process; A state actor’s defamatory statements; “Stigma plus” test; Substantive due process; The “shocks-the-conscience” test; “Federal confidentiality” rule

The court held that plaintiff-Pichiorri’s due process claims against defendant-Ohio State Board of Trustees were barred by sovereign immunity and that her due process claims against defendants-Ohio State officials in their official capacities failed on the merits. As to the procedural due process claim, her “complaint did not plausibly assert a ‘liberty’ interest under” the stigma-plus test. And she could not “pursue a ‘defamation’ claim under the guise of substantive due process.” Pichiorri published several articles while working as a research scientist at Ohio State. Years later, “a university committee found that she had committed research misconduct in some” instances, and it informed her employer and the relevant publications. She sued under § 1983, alleging among other things federal due process claims. The district court dismissed the complaint, ruling that “sovereign immunity shielded some of the university defendants from this suit and that” her other due process claims failed on the merits. On appeal, the court first held that sovereign immunity barred all claims against the Board of Trustees and all state claims against the officials in their official capacities. As to her procedural due process claims against Ohio State officials, the court explained that “people do not have a liberty interest in their ‘reputation’ alone[.]” Applying the stigma-plus test, it noted that she was unable to allege that the officials “defamed her ‘in the course of’ firing her from the university” given that she had already left her employment there. And she did not identify any “change in ‘a right or status previously recognized by state law’ apart from the reputational harm.” As to her substantive due process claims, her “failure to identify a liberty interest even worthy of procedural protection goes a long way toward showing that the challenged conduct ‘does not shock the conscience’ under substantive due process.” The court also found that her “theory would constitutionalize the common law of defamation.” Finally, the uncodified “federal confidentiality rule” could not save her claim. Case law has confined it to situations where “the government’s disclosure of ‘personal information could lead to bodily harm’ or when the disclosed information contains ‘sexual, personal, and humiliating’ details.” Affirmed.

Sentencing; Fees, fines, & costs; People v Godfrey; People v Krieger; People Konopka (On Remand); MCL 769.1k; Mandatory assessments; MCL 769.1k(1)(a); MCL 769.1j(2); MCL 780.905(1)(a) & (4); Discretionary assessments; MCL 769.1k(1)(b); Scoring of OV 19 at 10 points; Mootness; People v Carey; Judgment of sentence (JOS)

The court concluded that defendant was entitled to resentencing on the issue of fees, fines, and costs, but was not entitled to relief on OV 19. Thus, it affirmed in part and vacated in part her 7/5/24 JOS following the revocation of her probation and remanded for resentencing. She argued “that once the trial court revoked defendant’s probation and resentenced her, it did not have authority to order defendant to pay the fees, fines, and costs that were previously assessed as part of her now-extinguished probation order.” The court agreed, in part. She was “partially correct insofar as the fees, fines, and costs in [her] initial [JOS] were extinguished when the trial court discharged defendant from probation. But the trial court did have authority to impose financial assessments at resentencing.” Defendant relied primarily on Krieger, but “unlike in Krieger, in this case the trial court did have statutory authority to impose fees, fines, and costs at resentencing.” Also, because she pled “guilty to two felonies, the trial court was required to assess her $136.” Further, the court held that here, “the trial court had discretion to impose the $250 fine, $250 in court costs, and $1,292 in attorney fees.” Thus, unlike in Krieger, “the trial court was statutorily authorized to impose the fees, fines, and costs that appeared on” her 7/5/24 JOS following the revocation of probation. Defendant overstated “her case by asserting that the trial court had no such authority. However, the trial court did commit several errors in imposing the financial assessments in this case.” As to OV 19, first, she “has appropriately advised the Court that she has been released on parole, potentially rendering her challenge to the trial court’s guidelines calculation moot.” However, because she “remains on parole, and is therefore subject to the possibility of parole revocation and reincarceration on her current sentence, we conclude that her challenge to OV scoring is not moot.” Second, it was unclear whether she “can challenge her guidelines score on appeal from a probation violation sentence when the score was calculated and could have been challenged at her initial sentencing.” The court concluded that defendant’s challenge to OV 19 scoring lacked merit as well. Thus, as in Carey, it did not need to decide whether she “is allowed to raise the issue on appeal from resentencing; we assume, without deciding, that the issue is properly before us.” Returning to OV 19, the court found that “a preponderance of the evidence supports scoring OV 19 at 10 points because defendant attempted to interfere with the administration of justice by refusing to identify herself, refusing to comply with the police officers’ lawful commands, and physically resisting arrest.”

Jury instructions; Involuntary manslaughter; Second-degree murder (MCL 750.317); People v Mendoza; “Malice”; Harmless error; People v Cornell

The court held that the trial court did not err by declining to instruct the jury on involuntary manslaughter, and that even if the instruction should have been given, the omission did not undermine the reliability of the verdict. Defendant became involved in a bar altercation, was pushed toward the exit by a bouncer, pulled a concealed pistol, and during a struggle in the vestibule three shots were fired. One hit the bouncer in the chest and killed him. The trial court instructed on first-degree murder, second-degree murder, voluntary manslaughter, self-defense, and accident, but refused defendant’s request for an involuntary manslaughter instruction. The jury convicted him of second-degree murder, among other things. On appeal, the court reiterated that when a defendant is charged with murder, an involuntary manslaughter instruction must be given only “‘if supported by a rational view of the evidence,’” and emphasized that “‘the sole element distinguishing manslaughter and murder is malice.’” The court stated malice includes “‘an intent to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result,’” while involuntary manslaughter is “‘the unintentional killing of another, without malice.’” Applying that standard, it concluded no rational juror could find the shooting occurred without malice because defendant “intentionally dramatic[ally] escalat[ed] the altercation by securing his gun in his hand while still inside the bar.” The evidence showed “the gun was in his hand” during the struggle and “the trigger was pulled three times,” with no evidence in the record the bouncer ever possessed the pistol or fired it. The court held those facts established, at minimum, “a volitional act” done “‘in wanton and willful disregard of the likelihood that the natural tendency of his behavior is to cause death or great bodily harm,’” and did not show “‘a grossly negligent handling of a firearm that inadvertently caused death.’” The court rejected the claim that accident plus a voluntary manslaughter instruction required a involuntary manslaughter instruction, explaining Supreme Court authority requires the rational-view-of-the-evidence test. It added that any assumed error was harmless because the evidence did not “clearly support” the instruction and the jury rejected accident, voluntary manslaughter, and self-defense in returning a second-degree murder verdict. Affirmed.

Exclusion of digital evidence for failure to comply with the trial court’s discovery rulings; MCR 6.201(J); People v Burwick; People v Rose

In an interlocutory appeal, the court held that the trial court abused its discretion in excluding the digital evidence at issue as a discovery sanction. Thus, it reversed the orders excluding the evidence for failure to comply with the trial court’s discovery rulings and remanded. Defendant “requested copies of data recovered from three cell phones found in his car and a copy of all data obtained from the ‘CUE unit’” (the information and entertainment system in Cadillac vehicles) that was taken from the car. The trial court later ordered that the electronic discovery the prosecution produced on 10/15/24 be excluded. The court noted that defendant admitted at a “hearing that the motion to exclude evidence for the failure to produce it did not relate to the CUE because” he had received that information. As a result, the court found that the “trial court’s order excluding the evidence from the CUE ‘for reasons stated on the record,’ i.e., the prosecutor’s failure to provide the information, constituted an abuse of discretion.” As to the cell phone data, the court found that the record indicated “the failure to produce the discovery in a timely fashion was at least equally defendant’s and the prosecution’s fault.” It determined that had defense counsel “reached out to the prosecutor or the [trial] court . . . when she realized she could not view the data on the hard drive, the matter likely could have been promptly addressed. Instead, [she] waited nearly five months to raise the issue. Despite evidence indicating that the prosecutor was unaware that defense counsel could not view the data during that time period, the” trial court ruled for defendant, which the court concluded “constituted an abuse of [its] discretion.” The court held that the circumstances here “simply did not justify the extreme remedy of exclusion.” It directed that on “remand, the prosecution should be afforded the opportunity to facilitate additional software or necessary tools to allow defendant to meaningfully analyze the data.”

Sufficiency of the evidence; OWI-3rd; MCL 257.625; Third-degree fleeing & eluding a police officer; MCL 750.479a(3)(c); Operator of the motor vehicle

The court held that the evidence supported “a conviction based upon the theory that defendant was ‘under the influence of’ alcohol’ when he was driving and the record contained sufficient evidence to support his conviction for third-degree fleeing and eluding. He asserted there was “insufficient evidence to prove that his ability to drive was substantially affected by his consumption of alcohol because the police did not see him swerving, weaving, or crossing the center lane. Evidence that a defendant’s vehicle was swerving or weaving is not required to sustain an OWI conviction.” Also, other “evidence, such as an admission of drinking alcohol or an officer’s observation of a defendant smelling of alcohol, can establish that a defendant was operating ‘under the influence,’ even when the police did not observe any erratic driving.” In this case, “a partially-consumed bottle of tequila was found in the” vehicle. Further, he admitted he consumed over a fifth of tequila prior to operating his motor vehicle, and he ”smelled of alcohol, as did his vomit.” He only disputed “the second element: whether he was the operator of the motor vehicle just before he was arrested.” Defendant, “despite acknowledging that Deputy [J] testified that he admitted he operated the [vehicle] and he had been drinking, nonetheless contends that there was insufficient evidence that he drove” it. But there were no occupants in the vehicle other than defendant. Also, J testified as to defendant’s drinking a fifth of tequila prior to operating his motor vehicle, and that defendant admitted he“typically starts with a half of a fifth of brandy in the morning and then switches to either vodka or tequila in the afternoon and that is another half of [a] fifth.” Defendant further advised J “that he saw the red and blue patrol lights behind him and heard the sirens while he was driving. [He] admitted that the officers ‘were in pursuit of him,’ and that when he stopped his vehicle, ‘he was going to attempt to run back to his house,’ but when ‘he went to put the vehicle in park, he actually put it in reverse and when he tried to get out of the driver’s side door, he stated it was locked.’ Defendant conceded he intended to run home.” Those admissions, combined with the witness’s “observation of defendant fleeing from the crashed vehicle and [Sergeant M’s] apprehension of defendant, established that” he was, indeed, operating the vehicle. Affirmed.

Ineffective assistance of counsel; Prejudice; Strickland v Washington; People v Walker (On Remand); Distinguishing People v White

The court affirmed “the trial court’s decision to vacate defendant’s” AWIGBH conviction “and reinstate the original charge of felonious assault, habitual fourth, allowing [him] to reconsider pleading guilty as initially charged.” It concluded that the trial court’s ineffective assistance finding was “buttressed by the fact that defendant testified that he was not aware of the 25 year mandatory minimum sentence enhancement until the preliminary examination for the increased charge.” The court found that by “integrating the assistant prosecutor’s assertions regarding repeated notifications to trial counsel concerning the intent to pursue enhanced charges, the trial court established a sufficient basis to conclude that trial counsel was aware of the prosecution’s intentions yet failed to effectively communicate this critical information to the defendant.” The court noted that the “trial court deemed the testimonies of both trial counsel and defendant credible, ultimately determining that defendant was not apprised of the prosecution’s stance. Given that [its] findings are substantiated by the record, they do not rise to the level of clear error.” The prosecution contended that defendant had “not met the prejudice prong of the Strickland test.” It asserted that he failed to show “a plausible likelihood of accepting the plea offer or that the trial court would have approved such a plea due to defendant’s consistent assertion of innocence throughout the proceedings. According to the prosecution, for defendant to now claim a willingness to accept a plea would amount to an admission of perjury. However, the prosecution’s argument” failed to consider that the court “has held that a defendant who maintains innocence at trial is not foreclosed from claiming ineffective assistance of counsel based on trial counsel’s failure to inform defendant of a plea offer.” The court noted that “the trial court implicitly determined that the prejudice prong of Strickland was satisfied by its citations to supporting evidence within the record.” The prosecution asserted “that defendant’s statements reflect an unwillingness to plead unless offered additional concessions. However, defendant’s testimony can also be reasonably construed as indicating a willingness to accept a plea if he had been informed of the prosecutor’s intention to escalate the charges. An agreement to refrain from pursuing a higher charge contingent on a guilty plea could be perceived as a significant benefit.” The court found this case was “analogous to Walker and distinguishable from White in that the defendant was not made aware of the plea offer.” Affirmed in part, dismissed in part, and remanded.

Evidence of pretrial identifications; Whether identification procedures were impermissibly suggestive; People v Posey; People v Kurylczyk; People v Smith; Ineffective assistance of counsel; Failure to object

The court held “that the lineup in question was not impermissibly suggestive, thus permitting the admission of” the challenged pretrial identification evidence. And the court found that defense counsel was not ineffective. Thus, it affirmed defendant’s AWIM, armed robbery, and felony-firearm convictions. On appeal, he challenged the admission of pretrial identifications made by the victim (M). The court first noted “that an attorney was present during the lineup to safeguard its fairness.” Defendant argued “it was error for the police to tell [M] that they ‘had the guys.’ No officer testified that they ever told [M] they had the guys or that the suspect was in the lineup. Further, as alluded to by the trial court, it could be that [M] presumed ‘they had the guys’ when he was asked to come and view a lineup.” Even if the court presumed an officer told M “that he ‘had the guys,’ the record does not reveal that police signaled to [M] that defendant was the perpetrator. Further, review of the corporeal lineup does not reveal that the lineup was unduly suggestive, that defendant was the only participant in the lineup, or that anyone other than [M] pointed to defendant as the perpetrator. Rather, the record reveals that [M] was instructed that he should not feel obligated to make an identification, as it was entirely possible that the perpetrator was not included in the lineup.” In addition, a “comprehensive review of the transcript undermines defendant’s second and third arguments regarding witness conversation and police commentary concerning [his] appearance, name, and lineup position.” The court also found that the photographic lineup here reflected a situation comparable to that in Kurylczyk. The image depicted “five Black males who exhibit similar age, height, and physical build, with the majority dressed in dark-colored attire and long pants. The photograph’s quality presents challenges in discerning the individual hairstyles of the participants; however, they all appear to have short to medium-length hair. The assertion by [a witness] that this lineup constituted a ‘look-alike type of thing’ further supports the claim that defendant was not uniquely identified based on appearance.”

Restitution; Mandatory Victims Restitution Act (MVRA); 18 USC § 3663A; Whether the scope of the restitution order could include “legitimate medical claims”; § 3663A(b)(1); Whether the district court’s apportionment of restitution violated § 3664(h); Whether the restitution order as to the IRS was substantiated; Challenges to defendant’s convictions; Jury instruction defining “knowingly & willfully” in the healthcare fraud statute (§ 1347); Instruction that omissions & concealment could support a healthcare fraud conviction in this case; Plain error review; The invited-error doctrine; Whether challenged testimony violated defendant’s substantial rights

The court vacated the district court’s restitution order as to Fiat Chrysler in this healthcare fraud case where it included medically necessary prescriptions in the award and failed to properly apportion the level of each defendant’s contribution. It also erred when assigning loss to the IRS where its calculations were “unsubstantiated.” But it affirmed defendant-Clay’s convictions. He was convicted of conspiracy to commit healthcare fraud, healthcare fraud, and making a false statement to the IRS. In addition to receiving prison sentences, he was ordered to pay $7 million in restitution. He challenged the restitution order as it pertained to Fiat Chrysler (whose self-insured health benefits plan was billed for the prescriptions involved in scheme leading to Clay’s convictions) and the IRS. He argued that the district court erred by including “legitimate medical claims” in the Fiat Chrysler restitution calculation. The court agreed, finding this assertion supported by the MVRA and restitution case law. “[M]edically necessary claims are not a ‘loss’ and thus cannot be included in a restitution order.” It also agreed that the district court’s apportionment of the Fiat Chrysler restitution order violated § 3664(h) where it failed to consider other individuals’ contribution to Fiat Chrysler’s losses. Further, it held that the error was not harmless. The court next held that the restitution granted to the IRS was an abuse of discretion where it was “unsubstantiated” and essentially relied on the government’s “say-so.” But it rejected Clay’s challenges to his convictions, finding that he stipulated to the instructions he now challenged and as to the “knowingly and willfully” instruction, he failed to show “a ‘grave miscarriage of justice’ or that any error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’” And the court found no error in the instruction as to omissions and concealment where it has upheld “fraud convictions under § 1347 based on knowing concealment of material information absent a duty to disclose” and this foreclosed “Clay’s only argument in support of a finding of plain error.” Additionally, none of the testimony he challenged affected his substantial rights. Affirmed in part, vacated in part, and remanded.

Procedural due process violation claim under 42 USC § 1983; Revocation of a tow permit without a hearing; Motion to strike a witness’s declaration; Whether the word “belief” prohibited a finding that the witness testified from “personal knowledge”; FedRCivP 56(c)(4); Award of only “nominal damages”; Carey v Piphus; Detroit Police Department (DPD)

[This appeal was from the ED-MI.] The court held that while defendant-City of Detroit violated plaintiff-Nationwide Recovery’s procedural due-process rights by revoking its towing permit without a hearing, the district court did not err by awarding Nationwide only “nominal damages” because its “conduct justified the termination” and any due-process violation did not “cause” Nationwide’s loss. Nationwide operated under a permit from the City’s Board of Police Commissioners that allowed them to charge for recovering stolen vehicles. The City suspended the permit without a hearing after suspecting that at least one Nationwide driver was obtaining location information from the car thieves. This conclusion was supported by a DPD investigation, led by then-Lieutenant P. Nationwide sued the City under § 1983, alleging violation of its due-process rights by suspending its permit without a hearing. The district court ruled Nationwide was “deprived of its property interest without the required hearing,” but eventually awarded it only nominal damages of one dollar. On appeal, Nationwide challenged the district court’s denial of its motion to strike P’s declaration “that the Board would have terminated the permit even if there had been a hearing.” The court held that the district court had discretion to rule that P’s use of the words “‘[i]t is my belief ’” regarding the permit’s likely termination did not violate “the personal knowledge requirement of Rule 56(c)(4).” And the fact that there were 11 members of the Board did not make P’s “testimony conjectural. Again, the district court pointed to the City’s record evidence, which showed that [P’s] role as the supervisor of the DPD towing program had familiarized him with the Board’s approach to permits.” The court added that “Rule 56(c)(4)’s requirement of personal knowledge doesn’t exclude all opinion testimony in declarations.” As to the nominal damages award, the court rejected Nationwide’s argument that if there had been a hearing, the City would have only been able to consider the evidence that was available at the date of termination. The “inquiry into whether a deprivation was justified need not be artificially limited to what the City could prove on the date of termination.” It noted that it was “the failure to provide this post-deprivation hearing—not the termination itself—that Nationwide” was challenging. And the court held that the evidence that “would have been presented if the Board had conducted a timely hearing . . . would have been sufficient grounds to terminate Nationwide’s permit.” Affirmed.

Sufficiency of liability release for ordinary negligence; Skotak v Vic Tanny Int’l, Inc; Inability to contract to release gross negligence liability; Public policy; Lamp v Reynolds; Ski Area Safety Act (SASA) preemption of gross negligence claim; MCL 408.342(2); Anderson v Pine Knob Ski Resort, Inc; Kent v Alpine Valley Ski Area, Inc

On remand from the Supreme Court, the court held that the liability release did not bar plaintiffs’ common-law gross-negligence claim and that the SASA does not categorically preempt that claim. Plaintiff alleged he was injured while boarding a ski lift as a volunteer ski patroller after defendants’ employee directed him to load a toboggan at an angle, his ski became trapped, and he fell about 20 feet when the lift was not stopped. He and his wife sued for statutory and common-law theories. The trial court granted summary disposition for defendants, ruling the release barred the claims and rejecting plaintiffs’ challenges under SASA. On appeal, the court held release was not void as to ordinary negligence, noting that “‘it is not contrary to public policy for a party to contract against liability for damages caused by its own ordinary negligence.’” But defendants could not contract away gross negligence because “a party may not contract against liability for gross negligence,” which is “‘conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.’” The court also held that SASA’s assumption-of-risk framework for “obvious and necessary” dangers did not extinguish a gross-negligence claim predicated on an alleged failure to follow basic lift-loading procedures and to stop the lift when a rider was in danger. It emphasized SASA provides only “some immunity” for ski-area operators rather than total immunity. Affirmed in part, reversed in part, and remanded.

Slip & fall in a store’s bottle-return area; Premises liability; Negligence

As to premises liability the court held that by placing the caution “sign at the entrance of its bottle-return area, [defendant-Meijer] satisfied its duty to warn plaintiff, an invitee, of the known dangerous condition on Meijer’s premises.” Thus, the trial court properly dismissed plaintiff’s premises liability claim. Also, because both of her “negligence arguments actually sound in premises liability,” it properly dismissed her negligence claim. The appeal arose “out of a slip and fall that occurred in a bottle-return area on Meijer’s premises.” A tall yellow caution sign was near the entrance. Plaintiff insisted that there was a question of fact whether defendants were liable to her because an employee (B) “walked by plaintiff and did not warn her of the nearby puddle or offer to [help her] walk away from the puddle.” But plaintiff did “not explain how the fact that defendants could have theoretically done more to warn plaintiff about the wet floor creates a jury-triable issue. The caution sign at the bottle-return area’s entrance already warned plaintiff about that dangerous condition, and a plaintiff can almost always argue that a land possessor could do more to warn about a hazardous condition on the land, which is presumably why that is generally not the relevant inquiry.” The court noted that wet “floors are a common occurrence, especially in bottle-return areas, and the caution sign at the bottle-return area’s entrance warned plaintiff that the bottle-return area’s floor was wet and posed a fall risk.” She also argued that defendants were “liable in negligence because [B’s] conduct was negligent in two ways—(1) [B] left plaintiff standing in the puddle despite seeing the puddle and (2) he placed the caution sign near the door instead of closer to the wet areas of the floor so that customers could more easily navigate their carts into the bottle-return area.” Both arguments failed “for the simple reason that, assuming these allegations could establish a breach of duty, the duty arises from Meijer’s possession of the land. For her first argument, plaintiff frankly admits that the duty that [B] allegedly breached by leaving [her] standing in the puddle was the ‘duty of reasonable care . . . owed to [Meijer’s] customers (invitees).’ The placement of the caution sign similarly is only relevant because Meijer had a duty to warn invitees about known dangerous conditions on its land.” Plaintiff again admitted “as much, saying ‘that Meijer breached a standard of care on how to mitigate the hazard posed by spills and/or liquids on the floor and where to place caution signs in relation to those hazards.’”

Sufficiency of liability release for ordinary negligence; Skotak v Vic Tanny Int’l, Inc; Inability to contract to release gross negligence liability; Public policy; Lamp v Reynolds; Ski Area Safety Act (SASA) preemption of gross negligence claim; MCL 408.342(2); Anderson v Pine Knob Ski Resort, Inc; Kent v Alpine Valley Ski Area, Inc

On remand from the Supreme Court, the court held that the liability release did not bar plaintiffs’ common-law gross-negligence claim and that the SASA does not categorically preempt that claim. Plaintiff alleged he was injured while boarding a ski lift as a volunteer ski patroller after defendants’ employee directed him to load a toboggan at an angle, his ski became trapped, and he fell about 20 feet when the lift was not stopped. He and his wife sued for statutory and common-law theories. The trial court granted summary disposition for defendants, ruling the release barred the claims and rejecting plaintiffs’ challenges under SASA. On appeal, the court held release was not void as to ordinary negligence, noting that “‘it is not contrary to public policy for a party to contract against liability for damages caused by its own ordinary negligence.’” But defendants could not contract away gross negligence because “a party may not contract against liability for gross negligence,” which is “‘conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.’” The court also held that SASA’s assumption-of-risk framework for “obvious and necessary” dangers did not extinguish a gross-negligence claim predicated on an alleged failure to follow basic lift-loading procedures and to stop the lift when a rider was in danger. It emphasized SASA provides only “some immunity” for ski-area operators rather than total immunity. Affirmed in part, reversed in part, and remanded.

Imposition of attorney fees in a termination case; Due process; Indigent parents’ right to appointed counsel; In re Williams; MCL 712A.17c(5); MCR 3.915(B)(1)(a)(i); Premature appointment, Reimbursement; MCL 712A.25(1); MCL 712A.17c(8); MCR 3.915(E) & 3.916(D); Lawyer-guardian ad litem (L-GAL)

The court held that the trial court abused its discretion and violated petitioners-legal guardians’ due-process rights by ordering them to reimburse it “for the court-appointed attorney fees incurred by respondent-mother and the L-GAL” after they filed a petition to terminate respondents’ parental rights. As an initial matter, the court found that the appointment of counsel was premature. When the trial court entered the initial order for reimbursement of the mother’s “court-appointed attorney fees, no hearings had occurred in the child protective proceedings. [The] mother was never on record requesting an attorney, and the trial court had not determined her ability to pay.” While it had reason to believe she was indigent, it was still “required to follow the procedure” in MCL 712A.17c(5) and MCR 3.915(B)(1)(a). The court noted the appointment of counsel occurred before the trial court received a financial statement indicating the mother had no income or assets. “Further, it did not negate the fact no hearing had yet occurred.” The court also concluded that, even if it ignored “the errors in the appointment process, and” assumed that respondents were entitled to court-appointed counsel, petitioners were “not responsible for paying for that counsel.” Under MCL 712A.25(1), generally, “for court-appointed counsels, ‘expenses incurred in carrying out this chapter shall be paid upon the court’s order by the county treasurer from the county’s general fund.’” The court noted “there is some leeway for” a trial court to assess costs of representation against parties, but “MCL 712A.17c(8), MCR 3.915(E), and MCR 3.916(D) require the trial court to determine a party’s ability to pay for an attorney, appoint an attorney, and then assess costs against that same party or someone responsible for supporting the party. Petitioners are not responsible for” the mother. While they are the child’s guardians, “they are not ‘legally obligated to pay for the ward from the guardian’s own money.’” Respondents, who retain their parental rights, are required to pay child support. The court held that the “trial court’s decision to require petitioners to reimburse the trial court for the court-appointed attorney fees of respondent-mother and the L-GAL constituted a legal error and was outside the range of reasonable and principled outcomes.” Vacated and remanded.

Reasonable reunification efforts; MCL 712A.19a; In re Hicks/Brown; Desertion; § 19b(3)(a)(ii); In re Knipp

The court held that the trial court erred by terminating respondent-father’s parental rights at an initial dispositional hearing because reasonable reunification efforts were required and the statutory desertion period had not elapsed. Respondent was not present at the child’s birth, was initially difficult to locate, appeared from jail, and was treated as a putative father pending DNA testing. The trial court conditionally took jurisdiction and ordered that reasonable efforts be made once paternity was established, including a psychological evaluation, substance use assessment, and parenting time within DHHS discretion. Before the scheduled next hearing, a referee conducted a dispositional hearing after receiving DNA results, deemed respondent the legal father, found desertion, concluded “reasonable efforts were not necessary,” and terminated parental rights. The trial court affirmed. On appeal, the court reiterated that absent aggravating circumstances, the DHHS “‘has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights,’” and it “‘is not relieved of its duties to engage an absent parent merely because that parent is incarcerated.’” The referee’s aggravating-circumstances rationale relied on abandonment under MCL 722.638(1)(a)(i), but the court explained that where termination is premised on desertion under § (a)(ii), the record must establish at least 91 days of desertion by a known parent. Under the analysis in Knipp, “conduct after being ordered to determine paternity, but before a judicial determination of paternity was made,” may be considered, yet the timing still matters. Here, respondent was ordered to complete DNA testing on 1/23/25, and parental rights were terminated on 4/16/25, meaning only 83 days elapsed. Thus, the court held that “sufficient time had not passed to establish desertion or abandonment.” Because the statutory ground failed, and the determination that reasonable efforts were not required was likewise erroneous given the trial court’s earlier order directing services once paternity was established, the court vacated and remanded.