The Persons With Disabilities Civil Rights Act (PWDCRA); MCL 37.1302(a); Prima facie case; “Undue hardship”; Accommodation of reading plaintiff’s public comments aloud at city council meetings; The Open Meetings Act (OMA); Interaction of the statutes when a person with a recognized disability requests an accommodation to participate in a public meeting; Attorney General (AG) opinion on the interaction of the OMA & the Americans with Disabilities Act (ADA); OAG, 2022, No. 7,318 p 1 (2/4/22)

The court held that nothing in the OMA undermined the trial court’s reliance on the PWDCRA in issuing a permanent injunction obligating defendant-city to read aloud comments submitted by plaintiff in advance at city council meetings during the public-comment portion. Plaintiff “is confined to a wheelchair due to a spinal-cord injury that rendered him paraplegic, so he cannot readily attend in-person meetings[.]” Relying on the PWDCRA, he contended “defendant had to accommodate his disability by reading his public comments aloud at the city council meetings.” Defendant did so at two meetings before adopting “a policy limiting public comments to in-person remarks.” The court first concluded that plaintiff established a prima facie case under the PWDCRA. “Opportunities to make public comments at a city council meeting are ‘services,’ ‘privileges,’ ‘advantages,’ and ‘accommodations’ provided and regulated by defendant, as contemplated by MCL 37.1302(a).” Further, under the 72-hour written notice provision adopted by defendant, “plaintiff’s comments would not be heard by the public or members of the city council during the meetings.” Thus, it did not provide him “with ‘the full and equal enjoyment’ of the opportunity to provide public comments during” the meetings. And nothing in the record indicated that the accommodation of reading his comments “imposed any ‘undue hardship’ on defendant.” It argued that the OMA mandated a different result. The parties cited an AG opinion “analyzing how the OMA interacts with the” ADA. Defendant characterized the injunction “as requiring ‘fully virtual’ city council meetings” and asserted, “by analogy to the [AG’s] reasoning as to the ADA, that requiring fully virtual city council meetings would be a fundamental alteration of those meetings.” But the court noted that the injunction did “not require a virtual meeting.” The character of the “meetings, i.e., conducted in person and streamed virtually, remains unchanged under the” injunction. Thus, “the trial court’s application of the PWDCRA to provide an accommodation to plaintiff does not run afoul of the language or purpose of the OMA.” The court concluded the “trial court delicately struck an appropriate balance between the standards of the OMA and the requirements of the PWDCRA, thereby harmonizing the statutory dictates prescribed by” the Legislature. Affirmed.

Motion for a mistrial; Whether admission of an exhibit violated the MREs; Ineffective assistance of counsel; Combined DNA Index System (CODIS); Sexual-assault nurse examiner (SANE)

The court held that the “trial court did not abuse its discretion by denying defendant’s motion for a mistrial.” Further, he was not denied the effective assistance of counsel. He was convicted of CSC III. Defendant contended that an exhibit (identified as the Notice of CODIS Association) “exposed the jury to prejudicial information suggesting that he had a criminal history.” Contrary to his assertions, the Notice “did not expose the jury to information that defendant was listed in a ‘national database.”’ Rather, the Notice “explicitly stated that a search of the state-level CODIS database resulted in a moderate stringency association between [the victim’s] left breast swab and a specific DNA database specimen.” The court found that his argument rested “on the unsupported assumption that a reasonable juror equates CODIS with criminal activity.” Based on the record, he did not “show that the jury was improperly exposed to and affected by an extraneous influence.” Also, admission of the Notice did not violate the MREs. It “was not improperly admitted under MRE 404(b) because there was no discussion or evidence of a crime, wrong, or act, other than the one that defendant was on trial for.” And the Notice was “not improper under MRE 609 because there was no discussion of a previous ‘conviction.’” The court found that the “jury was not tainted by the admission of the” Notice, which “did not disclose prior crimes, did not label defendant as a previously convicted offender, and did not suggest that CODIS association equated with criminal history.” The court also held that he was not denied the effective assistance of counsel. Although defense counsel stipulated to the Notice, he “subsequently moved for a mistrial, successfully moved to redact prejudicial information in the SANE report, and repeatedly voice[d] objections in defendant’s favor.” These actions did not “fall below an objective standard of reasonableness.” Further, defense counsel did not perform deficiently by stipulating to the Notice “because the admission of that document did not expose the jury to prejudicial information suggesting that defendant had a criminal history.” Affirmed.

Constitutional challenge to FIP offense (18 USC § 922(g)(1)); New York State Rifle & Pistol Ass’n v Bruen; United States v Rahimi; United States v Williams; “As applied” challenge; Remedy; Burden of proving “dangerousness”

The court vacated the district court’s ruling that the FIP statute, § 922(g)(1), violated the Second Amendment as applied to defendant-Hostettler and remanded to apply the governing legal standard set forth in Williams. Hostettler was previously convicted of FIP in 2019. While on supervised release, he absconded. When law enforcement found him, he had a gun, in violation of the terms of his supervised release. He was again charged with FIP in this case. He moved to dismiss the indictment, arguing that under Bruen, § 922(g)(1) is unconstitutional both facially and as applied. The district court granted his motion on the basis of his as-applied challenge. In accordance with the law “at the time, the district court considered only Hostettler’s felony record, as opposed to the entirety of his criminal record, and did not take account of [his] status on supervised release.” While this appeal was pending, in Williams the “court revisited the constitutionality of § 922(g)(1) in light of the Supreme Court’s precedents in Bruen and Rahimi.” It found here that “Williams’s analysis conflicts with the district court’s in three important ways: first, the burden lies with Hostettler, not the government, to show he is not dangerous; second, the [district] court must consider Hostettler’s entire criminal history, not just his felony convictions; and third, his status on supervised release is potentially relevant.” The court rejected the government’s argument that Hostettler’s “dangerousness” had been established and that it should remand “with instructions to reinstate [his] indictment, without providing him the opportunity for individualized assessment as contemplated by Williams.” Rather, it agreed with him “that remanding with instructions to apply the proper legal standard is the most appropriate remedy.” Thus, it vacated and remanded with instructions for the district court “to reconsider Hostettler’s motion to dismiss the indictment consistent with current circuit precedent.”

No-fault coverage; Policy interpretation; “Ward”; Hartman v Insurance Co of N Am; Michigan Automobile Insurance Placement Facility (MAIPF)

The court held that plaintiff-State Farm failed to create a genuine issue of material fact that the injured person (KL) was not its insured's (M) “ward” under its policy, so defendant Nationwide was entitled to summary disposition. The dispute arose from a 2020 hit-and-run in which 15-year-old KL, who lived with her mother, M, and her half-siblings, was seriously injured as a pedestrian. After State Farm denied PIP coverage under M’s policy, the claim was assigned through the MAIPF to Nationwide, and State Farm later sought reimbursement from Nationwide after paying benefits in related litigation. The central issue was whether KL qualified as a covered “resident relative” under M’s policy as “a ward.” On appeal, the court held that the policy term “ward” was not limited to a formal court-appointed relationship and instead carried its plain and ordinary meaning, which could include a person under another’s protection and tutelage. The court next held that Nationwide satisfied its initial burden under MCR 2.116(C)(10) by submitting M’s affidavit stating that KL had lived with him since age nine, that he treated her like a daughter, provided her care and protection “as a father would,” contributed at least 25% of her food, clothing, and shelter, and performed parental tasks such as school transportation, discipline, and picking up prescriptions. The court further held that State Farm failed to rebut this evidence with documentary proof creating a material factual dispute and instead relied only on its unsuccessful legal argument that “ward” required a court-sanctioned relationship. Because State Farm left Nationwide’s evidence effectively unrebutted, summary disposition for Nationwide was required. Reversed and remanded for entry of summary disposition in favor of Nationwide.

No-fault coverage; Policy interpretation; “Ward”; Hartman v Insurance Co of N Am; Michigan Automobile Insurance Placement Facility (MAIPF)

The court held that plaintiff-State Farm failed to create a genuine issue of material fact that the injured person (KL) was not its insured's (M) “ward” under its policy, so defendant Nationwide was entitled to summary disposition. The dispute arose from a 2020 hit-and-run in which 15-year-old KL, who lived with her mother, M, and her half-siblings, was seriously injured as a pedestrian. After State Farm denied PIP coverage under M’s policy, the claim was assigned through the MAIPF to Nationwide, and State Farm later sought reimbursement from Nationwide after paying benefits in related litigation. The central issue was whether KL qualified as a covered “resident relative” under M’s policy as “a ward.” On appeal, the court held that the policy term “ward” was not limited to a formal court-appointed relationship and instead carried its plain and ordinary meaning, which could include a person under another’s protection and tutelage. The court next held that Nationwide satisfied its initial burden under MCR 2.116(C)(10) by submitting M’s affidavit stating that KL had lived with him since age nine, that he treated her like a daughter, provided her care and protection “as a father would,” contributed at least 25% of her food, clothing, and shelter, and performed parental tasks such as school transportation, discipline, and picking up prescriptions. The court further held that State Farm failed to rebut this evidence with documentary proof creating a material factual dispute and instead relied only on its unsuccessful legal argument that “ward” required a court-sanctioned relationship. Because State Farm left Nationwide’s evidence effectively unrebutted, summary disposition for Nationwide was required. Reversed and remanded for entry of summary disposition in favor of Nationwide.

Governmental immunity; Sufficiency of the record for appellate review

Concluding that the record was insufficient “to allow for meaningful appellate review[,]” the court reversed the trial court order granting summary disposition to defendants-Patel and Detroit on the basis of governmental immunity, and remanded. The court noted that the trial court granted summary disposition “without oral argument and without issuing a written opinion that would enable us to determine if the trial court reached the right outcome for the proper reasons.” All the court had “to review is a one-page order, entered in [3/23], which reads, ‘Suresh Patel and the City of Detroit have Governmental Immunity.”’ The 4/23 order dismissing them from the case was “similarly devoid of explanation, stating” only that their “‘Motion for Summary Disposition is GRANTED, for the reason they [sic] are entitled to governmental immunity.’” There was “no explanation for how the trial court reached this outcome.” The court recognized “that courts need not make detailed findings of fact or conclusions of law ‘unless findings are required by a particular rule,’ MCR 2.517(A)(4), and that MCR 2.116 does not require the court to go to such lengths. Nevertheless, the trial court has effectively frustrated any appellate review here.” Not only did the court “have no record with which to evaluate whether the [trial] court properly granted summary disposition to defendants as to plaintiffs’ governmental immunity claim, it is likewise unclear whether [it] intended to grant summary disposition of plaintiffs’ state constitutional law claim under MCR 2.116(C)(7), or whether it simply overlooked that claim.” The court found that without “at least minimal explanation from the trial court, we cannot discharge our duty to either correct or affirm a trial court determination. The practice of entering orders without explanation is problematic because it precludes meaningful appellate review, but it is also harmful to every single litigant whose case is disposed of in this manner, even those who benefit from the ultimate outcome. Justice requires more than what was done here.” The court retained jurisdiction.

Governmental immunity; Sufficiency of the record for appellate review

Concluding that the record was insufficient “to allow for meaningful appellate review[,]” the court reversed the trial court order granting summary disposition to defendants-Patel and Detroit on the basis of governmental immunity, and remanded. The court noted that the trial court granted summary disposition “without oral argument and without issuing a written opinion that would enable us to determine if the trial court reached the right outcome for the proper reasons.” All the court had “to review is a one-page order, entered in [3/23], which reads, ‘Suresh Patel and the City of Detroit have Governmental Immunity.”’ The 4/23 order dismissing them from the case was “similarly devoid of explanation, stating” only that their “‘Motion for Summary Disposition is GRANTED, for the reason they [sic] are entitled to governmental immunity.’” There was “no explanation for how the trial court reached this outcome.” The court recognized “that courts need not make detailed findings of fact or conclusions of law ‘unless findings are required by a particular rule,’ MCR 2.517(A)(4), and that MCR 2.116 does not require the court to go to such lengths. Nevertheless, the trial court has effectively frustrated any appellate review here.” Not only did the court “have no record with which to evaluate whether the [trial] court properly granted summary disposition to defendants as to plaintiffs’ governmental immunity claim, it is likewise unclear whether [it] intended to grant summary disposition of plaintiffs’ state constitutional law claim under MCR 2.116(C)(7), or whether it simply overlooked that claim.” The court found that without “at least minimal explanation from the trial court, we cannot discharge our duty to either correct or affirm a trial court determination. The practice of entering orders without explanation is problematic because it precludes meaningful appellate review, but it is also harmful to every single litigant whose case is disposed of in this manner, even those who benefit from the ultimate outcome. Justice requires more than what was done here.” The court retained jurisdiction.

The Persons With Disabilities Civil Rights Act (PWDCRA); MCL 37.1302(a); Prima facie case; “Undue hardship”; Accommodation of reading plaintiff’s public comments aloud at city council meetings; The Open Meetings Act (OMA); Interaction of the statutes when a person with a recognized disability requests an accommodation to participate in a public meeting; Attorney General (AG) opinion on the interaction of the OMA & the Americans with Disabilities Act (ADA); OAG, 2022, No. 7,318 p 1 (2/4/22)

The court held that nothing in the OMA undermined the trial court’s reliance on the PWDCRA in issuing a permanent injunction obligating defendant-city to read aloud comments submitted by plaintiff in advance at city council meetings during the public-comment portion. Plaintiff “is confined to a wheelchair due to a spinal-cord injury that rendered him paraplegic, so he cannot readily attend in-person meetings[.]” Relying on the PWDCRA, he contended “defendant had to accommodate his disability by reading his public comments aloud at the city council meetings.” Defendant did so at two meetings before adopting “a policy limiting public comments to in-person remarks.” The court first concluded that plaintiff established a prima facie case under the PWDCRA. “Opportunities to make public comments at a city council meeting are ‘services,’ ‘privileges,’ ‘advantages,’ and ‘accommodations’ provided and regulated by defendant, as contemplated by MCL 37.1302(a).” Further, under the 72-hour written notice provision adopted by defendant, “plaintiff’s comments would not be heard by the public or members of the city council during the meetings.” Thus, it did not provide him “with ‘the full and equal enjoyment’ of the opportunity to provide public comments during” the meetings. And nothing in the record indicated that the accommodation of reading his comments “imposed any ‘undue hardship’ on defendant.” It argued that the OMA mandated a different result. The parties cited an AG opinion “analyzing how the OMA interacts with the” ADA. Defendant characterized the injunction “as requiring ‘fully virtual’ city council meetings” and asserted, “by analogy to the [AG’s] reasoning as to the ADA, that requiring fully virtual city council meetings would be a fundamental alteration of those meetings.” But the court noted that the injunction did “not require a virtual meeting.” The character of the “meetings, i.e., conducted in person and streamed virtually, remains unchanged under the” injunction. Thus, “the trial court’s application of the PWDCRA to provide an accommodation to plaintiff does not run afoul of the language or purpose of the OMA.” The court concluded the “trial court delicately struck an appropriate balance between the standards of the OMA and the requirements of the PWDCRA, thereby harmonizing the statutory dictates prescribed by” the Legislature. Affirmed.