Warrantless vehicle search; Automobile exception; Fourth Amendment; Const 1963, art 1, § 11; Probable cause; Civil infraction; Marijuana possession by person under 21; Michigan Regulation & Taxation of Marihuana Act (MRTMA); MCL 333.27965; Contraband; People v Armstrong; Carroll v United States; Terry v Ohio

The court held that the automobile exception did not permit a warrantless vehicle search based only on probable cause to believe the vehicle contained evidence of a civil infraction for marijuana possession by a person under 21. A state trooper stopped defendant for speeding, smelled marijuana, learned both occupants were under 21, searched defendant’s person, and questioned the passenger. He searched the vehicle after the passenger said she had “some shake,” and the trooper found a concealed firearm. The circuit court denied defendant’s motion to suppress, and the Court of Appeals affirmed. On appeal, the court held that the search was unlawful because the Fourth Amendment’s automobile exception requires probable cause to believe the vehicle contains “contraband or evidence of a crime,” and marijuana possession of not more than 2.5 ounces by a person under 21 is a civil infraction under MCL 333.27965. The court reasoned that a civil infraction is “of lesser severity than a criminal infraction,” and the people of Michigan showed a “reduced state interest” in enforcing low-level marijuana offenses by removing them from criminal law through the MRTMA. The court also concluded that marijuana prohibited only by civil law is not “contraband” for purposes of a warrantless automobile search because reasonableness requires proportionality between the suspected violation and the intrusion on Fourth Amendment rights. Applying that rule, the court held that the smell of marijuana, the absence of visible marijuana or signs of intoxication, and the passenger’s statement that she might have a small amount did not create probable cause to believe the vehicle contained a criminal amount of marijuana or evidence of another crime. Reversed and remanded.

Justice Welch concurred. She agreed that the Fourth Amendment did not permit the warrantless search, but would have decided the case under Article 1, § 11 of the Michigan Constitution rather than federal law. She emphasized that defendant preserved his state constitutional claim, that federal law is less helpful because marijuana remains illegal federally, and that other state supreme courts addressing marijuana legalization have generally developed their own state search-and-seizure doctrine.

Justice Zahra dissented, joined by Justice Bernstein. He would have held that the search was lawful because the trooper had probable cause to believe the vehicle contained marijuana “contraband,” regardless of whether the amount later proved to be only a civil infraction. He reasoned that the majority framed the case too narrowly, that the automobile exception has long allowed searches for “contraband or evidence of a crime,” and that marijuana remained unlawful for both occupants because they were under 21. He also emphasized that the trooper relied on more than odor because both occupants initially denied having marijuana and the passenger later admitted she had some in the vehicle.

Michigan’s Sex Offenders Registration Act (SORA); Constitutionality of SORA’s “recapture” provision (MCL 28.723(1)(e)); Imposition of SORA registration for a subsequent nonsexual felony; Cruel or unusual punishment; Const 1963, art 1, § 16; People v Lymon; People v Kardasz; People v Lorentzen; People v Bullock; Ripeness; Effect of the fact defendant was not currently required to register in Michigan; Whether the pre-1995 sex crime or the later nonsexual felony was the triggering offense; Judgment of sentence (JOS)

Addressing for the first time whether the 2021 SORA’s recapture provision “is unconstitutional under Michigan’s prohibition against cruel or unusual punishment[,]” the court held that imposing SORA registration requirements on those “convicted of a nonsexual offense who also have a pre-SORA sexual offense conviction is unconstitutional under the Michigan Constitution.” Defendant was convicted of attempted rape in 1983. As SORA did not become effective until 1995, he was not required to register for that conviction. In 2021, he pled guilty to attempted unarmed robbery. The trial court “imposed lifetime registration as a Tier III offender under the recapture provision of SORA,” due to the 1983 conviction. The Court of Appeals affirmed. On appeal, the court considered “the constitutionality of the recapture provision to the extent that it imposes SORA registration requirements on individuals with a listed sexual offense conviction—for which they were not required to register under SORA—who subsequently are convicted of a nonsexual felony.” It first concluded that defendant’s constitutional claims were ripe, even though he lives in another state. While “the imposition of SORA registration requirements is contingent on defendant living or working in Michigan, the application of SORA to [him] is not.” It next determined that his recent conviction was the offense that triggered the recapture provision, not the 1983 sex crime. Thus, it proceeded with a cruel or unusual punishment analysis. Lymon and Kardasz were relevant because “the recapture provision is triggered by a nonsexual criminal offense but targets a past criminal sexual conviction.” Kardasz established that the provision constitutes punishment. Applying the Lorentzen four-factor test, the court concluded “the recapture provision is grossly disproportionate as applied to defendant and those similarly situated whose registration is triggered by a nonsexual offense.” The court found it “is an excessively harsh punishment for nonsexual criminal offenses. It is disproportionate to other penalties in both Michigan and the vast majority of other jurisdictions. And it does nothing to advance the goal of rehabilitating the nonsexual criminal conduct that it punishes.” Reversed and remanded to the trial court to remove the registration requirement from defendant’s JOS.

Warrantless vehicle search; Automobile exception; Fourth Amendment; Const 1963, art 1, § 11; Probable cause; Civil infraction; Marijuana possession by person under 21; Michigan Regulation & Taxation of Marihuana Act (MRTMA); MCL 333.27965; Contraband; People v Armstrong; Carroll v United States; Terry v Ohio

The court held that the automobile exception did not permit a warrantless vehicle search based only on probable cause to believe the vehicle contained evidence of a civil infraction for marijuana possession by a person under 21. A state trooper stopped defendant for speeding, smelled marijuana, learned both occupants were under 21, searched defendant’s person, and questioned the passenger. He searched the vehicle after the passenger said she had “some shake,” and the trooper found a concealed firearm. The circuit court denied defendant’s motion to suppress, and the Court of Appeals affirmed. On appeal, the court held that the search was unlawful because the Fourth Amendment’s automobile exception requires probable cause to believe the vehicle contains “contraband or evidence of a crime,” and marijuana possession of not more than 2.5 ounces by a person under 21 is a civil infraction under MCL 333.27965. The court reasoned that a civil infraction is “of lesser severity than a criminal infraction,” and the people of Michigan showed a “reduced state interest” in enforcing low-level marijuana offenses by removing them from criminal law through the MRTMA. The court also concluded that marijuana prohibited only by civil law is not “contraband” for purposes of a warrantless automobile search because reasonableness requires proportionality between the suspected violation and the intrusion on Fourth Amendment rights. Applying that rule, the court held that the smell of marijuana, the absence of visible marijuana or signs of intoxication, and the passenger’s statement that she might have a small amount did not create probable cause to believe the vehicle contained a criminal amount of marijuana or evidence of another crime. Reversed and remanded.

Justice Welch concurred. She agreed that the Fourth Amendment did not permit the warrantless search, but would have decided the case under Article 1, § 11 of the Michigan Constitution rather than federal law. She emphasized that defendant preserved his state constitutional claim, that federal law is less helpful because marijuana remains illegal federally, and that other state supreme courts addressing marijuana legalization have generally developed their own state search-and-seizure doctrine.

Justice Zahra dissented, joined by Justice Bernstein. He would have held that the search was lawful because the trooper had probable cause to believe the vehicle contained marijuana “contraband,” regardless of whether the amount later proved to be only a civil infraction. He reasoned that the majority framed the case too narrowly, that the automobile exception has long allowed searches for “contraband or evidence of a crime,” and that marijuana remained unlawful for both occupants because they were under 21. He also emphasized that the trooper relied on more than odor because both occupants initially denied having marijuana and the passenger later admitted she had some in the vehicle.

Self-defense; The Self-Defense Act; People v Riddle; Witness-interference defense; MCL 750.122(4); Credibility

The court rejected defendant’s self-defense arguments as to his second-degree murder conviction, and also held that the prosecution presented sufficient evidence to allow the jury to reject his defense under MCL 750.122(4) as to the witness-interference conviction. He was also convicted of CCW, FIP of ammunition and a firearm, felony-firearm, and threatening a witness. On appeal, the court first found his self-defense challenge to the witness-interference conviction “unpersuasive.” It noted that a defendant facing this charge “may raise an affirmative defense ‘that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the other person to testify or provide evidence truthfully[,]’” under MCL 750.122(4). The jury was presented with both “defendant’s claim that he was trying to get the witnesses to tell the truth as well as the prosecutor’s questions calling that explanation into question.” The court noted that “‘an appellate court must not interfere with the jury’s role in assessing the weight of the evidence and the credibility of the witnesses.’” As to the murder conviction, the “jury was presented with different accounts of the shooting and made its own credibility determinations in deciding who to believe and to what extent. Defendant may disagree with the outcome, but the record contains sufficient evidence from which a rational trier of fact could find that [his] actions were not in self-defense beyond a reasonable doubt. The jury was informed of the inconsistencies between the witnesses’ trial testimony and their prior statements. It also heard both parties’ competing interpretations of the surveillance footage and viewed the video itself, including the gap in the recording during which the shooting occurred.” Thus, it was “free to determine what the video showed and to infer what occurred during the missing portion of the recording in light of the trial testimony.” While defendant asserted “that the prosecutor’s witnesses were incredible because of their contradictory statements,” their credibility was for the jury to decide. Affirmed.

CSC I; CSC II; Ineffective assistance of counsel; Medical-treatment hearsay exception; MRE 803(4); Vouching; Penile piercing evidence; Motive to fabricate; Ginther hearing request; OV 11; MCL 777.41(1)(b); Criminal sexual penetration; Consecutive sentencing; MCL 750.520b(3); Same transaction; People v Bailey

The court held that defendant failed to establish ineffective assistance of counsel, but resentencing was required because OV 11 was improperly scored and the trial court improperly imposed consecutive sentences. He was convicted of multiple CSC I and CSC II counts. The court first held that counsel was not ineffective for failing to object to the medical report because the victim’s statements were made for “medical treatment,” and an objection would have been futile. It also held that the report did not vouch for the victim because it referred only to “suspected” child sexual abuse and did not determine whether the victim was truthful. The court next held that counsel was not ineffective for failing to present additional evidence about defendant’s penile piercing because the victim never testified she visually examined his genitalia, and the proposed affidavits did not show a reasonable probability of a different outcome. It further held that counsel reasonably pursued a fabrication theory tied to the mother’s divorce and custody dispute, rather than questioning the victim about minor disagreements in a way that “could easily create the appearance of bullying the witness[.]” But the court held that the trial court erred by scoring OV 11 at 25 points for counts five, six, and seven because the record did not show that criminal sexual penetration arose out of those CSC II sentencing offenses. The court also held that consecutive sentencing was improper because the paired offenses occurred at different times and were “not part of the same transaction.” Affirmed in part, vacated in part, and remanded.

First-degree felony murder; First-degree child abuse; Other acts evidence of domestic violence; MCL 768.27b; MRE 403; People v Berklund; People v Watkins; Double jeopardy; People v Magyar; People v Ream; Youth as mitigating factor; MCL 769.25; Miller v Alabama; People v Parks; People v Boykin; People v Snow

The court held that the trial court did not abuse its discretion by admitting other acts domestic-violence evidence and that defendant’s double-jeopardy claim failed, but resentencing was required because the record did not show the trial court treated his youth as mitigating. Defendant was convicted of felony murder and first-degree child abuse in the death of 18-month-old DS. The court first held that the mother’s testimony about defendant’s prior violence against her was admissible under MCL 768.27b. The trial court reasoned the evidence showed propensity and motive because prior violence against a household member “certainly would demonstrate propensity to have a violent act against another member of the household.” The court found that it was not unfairly prejudicial given the severity of the medical proof about DS’s injuries. The court also held that the neighbor’s testimony about defendant endangering the children in a speeding car qualified as domestic violence because it supported an inference that defendant’s conduct placed household members in “fear of physical or mental harm” or would cause a reasonable person to feel terrorized or frightened. The court rejected defendant’s double-jeopardy claim because Magyar permits “a single assaultive act constituting first-degree child abuse that results in a child’s death” to serve as the felony-murder predicate, and Ream permits convictions for felony murder and the predicate felony. Finally, the court held that resentencing was required under Boykin because the trial court showed awareness of defendant’s youth, but did not demonstrate that it “treated it as a mitigating factor” or considered the Snow factors “in light of [the defendant’s] youth.” Affirmed in part, vacated in part, and remanded.

Confrontation Clause; People v Nunley; Absence of the children’s mother in the father’s trial on failure to pay child support charges; Whether Michigan Child Support Enforcement System (MiCSES) records were testimonial; Ineffective assistance of counsel; Refusal to call the mother as a witness; Prejudice; Failure to adequately investigate an impossibility defense; People v Likine

Holding that defendant’s Confrontation Clause rights were not violated and rejecting his ineffective assistance of counsel claims, the court affirmed his failure to pay child support convictions. The trial court was correct that the Clause was not implicated by the absence of the children’s mother (C) from the trial. She was not a witness against defendant and “the prosecution did not introduce any out-of-court statements from her as substantive evidence.” The trial court also correctly ruled that the Clause was not implicated by MiCSES records, as they were nontestimonial. They “track all activity in a specific case, indicating that they are generated for administrative purposes. In this respect, [they] are ‘a routine, objective cataloging of an unambiguous factual matter’ that were created for the ‘administrative business reason’ of tracking all activity with respect to the child support order in this case.” Because they “were not created for purposes of a criminal prosecution, they were nontestimonial” and their admission did not trigger the Clause’s protections. As to defendant’s ineffective assistance claim based on defense counsel’s refusal to call C as a witness, the court found that he failed to show prejudice. He contended she “was an essential witness because only she could testify about other, direct payments and support he provided outside the payments recorded by the MiCSES.” But he offered no evidence that she “would actually testify that he made such payments or provided additional support.” With no showing that she “would testify in his favor, he” failed to establish “her absence was outcome-determinative.” He also did not show “that additional investigation by defense counsel would have unearthed true evidence for his impossibility defense,” and thus he could not establish “that any alleged failure to do so was outcome-determinative.”

Involuntary mental health treatment; Mental Health Code; Probate court jurisdiction; Subject-matter jurisdiction; Alternative treatment report; MCL 330.1453a; MCL 330.1469a; “Person requiring treatment”

The court held that any alleged failure to consider the alternative-treatment report did not deprive the probate court of subject-matter jurisdiction and that respondent failed to establish any error affecting substantial rights. Respondent appealed an initial order for mental-health treatment, arguing the probate court did not properly consider a report on alternatives to hospitalization. The court first held that the claim was not jurisdictional because subject-matter jurisdiction means the power to hear a class of cases, and probate courts have “exclusive legal and equitable jurisdiction” over Mental Health Code proceedings. Thus, jurisdiction was “not dependent upon strict compliance” with the Code. The court next held that respondent failed to show clear or obvious error as to compliance with MCL 330.1469a. The probate court ordered the alternative-treatment report after receiving the petition and clinical certificates, received it before the hearing, and judges are presumed to know the law. The report described assisted outpatient treatment and stated that other alternatives were not applicable or not recommended, and nothing in the record suggested the probate court would have reached a different result had it expressly stated that it reviewed the report. Affirmed.

No-fault benefits; Effect of revocation of an assignment; C-Spine Orthopedics, PLLC v Progressive MI Ins Co; Wallace v Suburban Mobility Auth for Reg’l Transp; Jury voir dire; Expert video depositions; MCR 2.308; MRE 702; Waiver of appellate arguments; Abandoned issues

In this no-fault case, the court held that plaintiff failed to show he was entitled to any relief on his arguments related to revocation of an assignment to a pharmacy provider or the trial court’s conduct of voir dire. He also did not show that the trial court abused its discretion in admitting the video deposition expert testimony presented by defendant. Thus, the court affirmed the jury verdict awarding plaintiff work loss benefits but finding that he “was not entitled to any recovery for allowable expenses or replacement service expenses.” Among other things, he argued on appeal that because he and his counsel “are Middle Eastern, the trial court erred by prohibiting plaintiff’s counsel from inquiring during jury voir dire whether potential jurors harbored any biases about people of Middle Eastern descent.” He conceded there was no indication in the record that “the trial court denied a request to conduct specific lines of inquiry during jury voir dire.” While he asserted “such a request was made and denied in an off-the-record discussion with the trial court[,]” the court noted that its “review is confined to the record established in the trial court.” Plaintiff failed to “create a record in the trial court to facilitate review of this issue.” And the court found that his argument as to “the effect of not pursuing this line of inquiry during voir dire is speculative and unsupported by evidence of prejudice.” As to the assignment revocation issue, the court noted “that rescission of an assignment during ongoing litigation does not automatically and retroactively restore the assignor’s status as the real party in interest.” Any alleged revocation between plaintiff and the pharmacy, “absent court approval and appropriate litigation steps, was insufficient to reinstate plaintiff’s claims as to the” pharmacy bills for trial purposes. In addition, to the extent that his “actions could be construed as a request to amend the pleadings to account for the revocation and reassert” those claims, the court held that “the trial court acted well within its discretion in denying such relief. The case had been pending for nearly two years, discovery had closed, and the revocation was presented only one week before trial[.]”

No-fault benefits; Effect of revocation of an assignment; C-Spine Orthopedics, PLLC v Progressive MI Ins Co; Wallace v Suburban Mobility Auth for Reg’l Transp; Jury voir dire; Expert video depositions; MCR 2.308; MRE 702; Waiver of appellate arguments; Abandoned issues

In this no-fault case, the court held that plaintiff failed to show he was entitled to any relief on his arguments related to revocation of an assignment to a pharmacy provider or the trial court’s conduct of voir dire. He also did not show that the trial court abused its discretion in admitting the video deposition expert testimony presented by defendant. Thus, the court affirmed the jury verdict awarding plaintiff work loss benefits but finding that he “was not entitled to any recovery for allowable expenses or replacement service expenses.” Among other things, he argued on appeal that because he and his counsel “are Middle Eastern, the trial court erred by prohibiting plaintiff’s counsel from inquiring during jury voir dire whether potential jurors harbored any biases about people of Middle Eastern descent.” He conceded there was no indication in the record that “the trial court denied a request to conduct specific lines of inquiry during jury voir dire.” While he asserted “such a request was made and denied in an off-the-record discussion with the trial court[,]” the court noted that its “review is confined to the record established in the trial court.” Plaintiff failed to “create a record in the trial court to facilitate review of this issue.” And the court found that his argument as to “the effect of not pursuing this line of inquiry during voir dire is speculative and unsupported by evidence of prejudice.” As to the assignment revocation issue, the court noted “that rescission of an assignment during ongoing litigation does not automatically and retroactively restore the assignor’s status as the real party in interest.” Any alleged revocation between plaintiff and the pharmacy, “absent court approval and appropriate litigation steps, was insufficient to reinstate plaintiff’s claims as to the” pharmacy bills for trial purposes. In addition, to the extent that his “actions could be construed as a request to amend the pleadings to account for the revocation and reassert” those claims, the court held that “the trial court acted well within its discretion in denying such relief. The case had been pending for nearly two years, discovery had closed, and the revocation was presented only one week before trial[.]”

The Open Meetings Act (OMA); Municipal marijuana retail licensing process; OMA’s applicability to a city manager in selecting applicants & an informal review committee used to help him; “Public body” (MCL 15.262(a)); Pinebrook Warren, LLC v City of Warren; Herald Co v Bay City; Distinguishing Booth Newspapers, Inc v University of MI Bd of Regents

The court held that the city manager in this case was not required to comply with the OMA in conducting defendant-City’s marijuana retail license selection process because he was “not a public body in his own right and is not a public body by way of ordinance-based delegation.” The trial court found no OMA violation. The Court of Appeals reversed, applying Pinebrook. On appeal, the court disagreed with the Court of Appeals’ ruling and its application of Pinebrook to these facts. “A governmental entity can qualify as a ‘public body’ by one of two pathways: ‘Either (1) [it] satisfies the statutory definition of “public body” in its own right or (2) the entity is delegated authority from another public body.’” As to the first, individual government officials are generally “not ‘public bodies’ within the meaning of” MCL 15.262(a). The court addressed the second, the delegation pathway, in Booth. Its decision in Pinebrook “further refined the contours of” these pathways. The court concluded here that, pursuant to its decision “in Herald, the city manager does not himself qualify as a ‘public body’ in his ‘own right.’” It noted that “an individual may qualify as a ‘public body’ under the second pathway by way of delegation.” But without such delegation, “Herald dictates that an individual cannot be a ‘public body’ in his or her own right.” The Court of Appeals applied the second pathway here. The court disagreed, determining that it erred “in its initial conclusion that the ordinance awarded decision-making authority to the city commission. Rather, the ordinance gives the city manager the power to decide among applicants.” The court found that “the city commission has no role in selecting among applicants other than to approve or disapprove site plans. Thus, the Court of Appeals erred by concluding that the city commission delegated its authority under the marijuana ordinance to the city manager, thereby rendering him a ‘public body.’ Instead, [he] was ‘acting alone in [his] official work capacity pursuant to an independent grant of authority,’ and, therefore, was not subject to the OMA.” Further, the marijuana ordinance did “not itself qualify as a delegation of authority subject to the OMA.” The court reversed Part VI of the Court of Appeals’ judgment and remanded to the trial court for entry of summary disposition for the City.

The Open Meetings Act (OMA); Municipal marijuana retail licensing process; OMA’s applicability to a city manager in selecting applicants & an informal review committee used to help him; “Public body” (MCL 15.262(a)); Pinebrook Warren, LLC v City of Warren; Herald Co v Bay City; Distinguishing Booth Newspapers, Inc v University of MI Bd of Regents

The court held that the city manager in this case was not required to comply with the OMA in conducting defendant-City’s marijuana retail license selection process because he was “not a public body in his own right and is not a public body by way of ordinance-based delegation.” The trial court found no OMA violation. The Court of Appeals reversed, applying Pinebrook. On appeal, the court disagreed with the Court of Appeals’ ruling and its application of Pinebrook to these facts. “A governmental entity can qualify as a ‘public body’ by one of two pathways: ‘Either (1) [it] satisfies the statutory definition of “public body” in its own right or (2) the entity is delegated authority from another public body.’” As to the first, individual government officials are generally “not ‘public bodies’ within the meaning of” MCL 15.262(a). The court addressed the second, the delegation pathway, in Booth. Its decision in Pinebrook “further refined the contours of” these pathways. The court concluded here that, pursuant to its decision “in Herald, the city manager does not himself qualify as a ‘public body’ in his ‘own right.’” It noted that “an individual may qualify as a ‘public body’ under the second pathway by way of delegation.” But without such delegation, “Herald dictates that an individual cannot be a ‘public body’ in his or her own right.” The Court of Appeals applied the second pathway here. The court disagreed, determining that it erred “in its initial conclusion that the ordinance awarded decision-making authority to the city commission. Rather, the ordinance gives the city manager the power to decide among applicants.” The court found that “the city commission has no role in selecting among applicants other than to approve or disapprove site plans. Thus, the Court of Appeals erred by concluding that the city commission delegated its authority under the marijuana ordinance to the city manager, thereby rendering him a ‘public body.’ Instead, [he] was ‘acting alone in [his] official work capacity pursuant to an independent grant of authority,’ and, therefore, was not subject to the OMA.” Further, the marijuana ordinance did “not itself qualify as a delegation of authority subject to the OMA.” The court reversed Part VI of the Court of Appeals’ judgment and remanded to the trial court for entry of summary disposition for the City.

Involuntary mental health treatment; Mental Health Code; Probate court jurisdiction; Subject-matter jurisdiction; Alternative treatment report; MCL 330.1453a; MCL 330.1469a; “Person requiring treatment”

The court held that any alleged failure to consider the alternative-treatment report did not deprive the probate court of subject-matter jurisdiction and that respondent failed to establish any error affecting substantial rights. Respondent appealed an initial order for mental-health treatment, arguing the probate court did not properly consider a report on alternatives to hospitalization. The court first held that the claim was not jurisdictional because subject-matter jurisdiction means the power to hear a class of cases, and probate courts have “exclusive legal and equitable jurisdiction” over Mental Health Code proceedings. Thus, jurisdiction was “not dependent upon strict compliance” with the Code. The court next held that respondent failed to show clear or obvious error as to compliance with MCL 330.1469a. The probate court ordered the alternative-treatment report after receiving the petition and clinical certificates, received it before the hearing, and judges are presumed to know the law. The report described assisted outpatient treatment and stated that other alternatives were not applicable or not recommended, and nothing in the record suggested the probate court would have reached a different result had it expressly stated that it reviewed the report. Affirmed.

Zoning ordinance; Special use permit; Agricultural district; Facial constitutional challenge; Void for vagueness; Due process; Fair notice; Planning Commission discretion; Adjacent property; “Natural environment”; Excessive traffic, noise, smoke, fumes, or glare; Master plan; Distinguishing People of Grand Rapids v Gasper

The court held that plaintiffs failed to establish that defendant-township’s zoning ordinance governing special-use permits was facially unconstitutional as void for vagueness. Plaintiffs operated commercial businesses on their property, had a special-use permit revoked, and later sued seeking a declaration that the township’s current and former zoning ordinances were vague. The court first held that plaintiffs raised a facial challenge, which required showing “no set of circumstances” under which the ordinance would be valid. It held that the ordinance’s requirement that a special use be “harmonious” with adjacent property and the surrounding area was not vague because the term could be understood by its dictionary meaning and constrained the Planning Commission to compare the proposed use with nearby properties. The court next held that the “natural environment” and “essential character” language was sufficiently clear when read in context because a person of ordinary intelligence could determine whether a proposed use was compatible with the relevant zoning district. It also rejected plaintiffs’ challenge to the word “excessive,” reasoning that traffic, noise, smoke, fumes, or glare were excessive only if detrimental to health, safety, or welfare. Finally, the court held that the master-plan criterion contained explicit standards, and distinguished Gasper because this ordinance gave fair notice and constrained enforcement discretion. Affirmed.

Order to initiate termination proceedings; MCL 712A.19a(1), (3), (4)(b), & (8); Factors to consider; MCL 712A.19a(14); Children’s best interests; In re Atchley; Case service plan (CSP)

The court held that the trial court did not plainly err in ordering the DHHS to initiate termination proceedings or in finding that terminating respondent-mother’s parental rights was in the children’s best interests. Thus, the court affirmed the termination order. Her argument as to the initiation of termination proceedings largely rested “on the fact that the children had been in care for only 10 months when the trial court ordered DHHS to file a termination petition. But MCL 712A.19a(8) does not prohibit a trial court from ordering the initiation of termination proceedings before a child has been in foster care for 15 of the most recent 22 months. Rather, [it] provides that the [trial] court may order the agency to initiate termination proceedings if it concludes that a child should not be returned to the parent. The 15-of-22-month provision addresses when the” trial court generally has to order that such proceedings be initiated – it does not restrict the “authority to do so earlier when the record supports that decision.” Respondent was warned at the 11/24 permanency planning hearing that the trial “court would consider changing the goal from reunification to termination if she did not make progress with adhering to her CSP. By” 2/25, she did not have housing, “continued to miss or fail drug screens, and had not meaningfully engaged in the treatment and mental-health services offered to her. Her positive parenting time and bond with the children were important considerations, but the fact remained that [she] failed to resolve the conditions preventing [them] from safely returning to her care. The trial court acted within its statutory authority, and” she did not show “plain error affecting her substantial rights.” The court also found that the trial court’s best-interest analysis was correctly focused on “the children’s needs for permanency, stability, food, shelter, clothing, medical care, and finality.” As to respondent’s individualized best-interests findings argument, their “interests did not significantly differ[.]” In addition, the “lack of a preadoptive foster care placement was” relevant, but did not overcome the evidence that respondent could not provide “permanency and stability within a reasonable time.”

Zoning ordinance; Special use permit; Agricultural district; Facial constitutional challenge; Void for vagueness; Due process; Fair notice; Planning Commission discretion; Adjacent property; “Natural environment”; Excessive traffic, noise, smoke, fumes, or glare; Master plan; Distinguishing People of Grand Rapids v Gasper

The court held that plaintiffs failed to establish that defendant-township’s zoning ordinance governing special-use permits was facially unconstitutional as void for vagueness. Plaintiffs operated commercial businesses on their property, had a special-use permit revoked, and later sued seeking a declaration that the township’s current and former zoning ordinances were vague. The court first held that plaintiffs raised a facial challenge, which required showing “no set of circumstances” under which the ordinance would be valid. It held that the ordinance’s requirement that a special use be “harmonious” with adjacent property and the surrounding area was not vague because the term could be understood by its dictionary meaning and constrained the Planning Commission to compare the proposed use with nearby properties. The court next held that the “natural environment” and “essential character” language was sufficiently clear when read in context because a person of ordinary intelligence could determine whether a proposed use was compatible with the relevant zoning district. It also rejected plaintiffs’ challenge to the word “excessive,” reasoning that traffic, noise, smoke, fumes, or glare were excessive only if detrimental to health, safety, or welfare. Finally, the court held that the master-plan criterion contained explicit standards, and distinguished Gasper because this ordinance gave fair notice and constrained enforcement discretion. Affirmed.