Elliott-Larsen Civil Rights Act (ELCRA); Employment discrimination; Race, color, & national origin; Claims against the state; Court of Claims Act (COCA); MCL 600.6431(1); Notice requirement; Sovereign immunity; Circuit court jurisdiction; Tyrrell v University of MI; Christie v Wayne State Univ; Retroactivity; Landin v Department of Health & Human Servs; Flamont v Department of Corrs; Hudson v Department of Corrs

The court held that plaintiff’s ELCRA claims against the state defendants were barred because he failed to comply with MCL 600.6431(1)’s notice requirement, and Christie applies retroactively. Plaintiff, a state trooper, sued in circuit court alleging he was denied promotions based on race, color, and national origin. When he filed the complaint, Tyrrell held that a circuit-court plaintiff did not need to comply with COCA’s notice provision, but Christie later overruled Tyrrell and held that “all parties with claims against the state” must comply with MCL 600.6431(1) unless expressly exempted. The court rejected plaintiff’s argument that Christie should not apply retroactively. It explained that after conflicting decisions in Landin and Flamont, the conflict-panel decision in Hudson overruled Landin and held that Christie applies retroactively “to all cases,” including those pending in circuit court while Tyrrell remained controlling. Because plaintiff conceded he did not file the required notice, the trial court properly granted summary disposition. Affirmed.

Double jeopardy; Prosecutorial misconduct; Mistrial; Retrial; Const 1963, art 1, § 15; US Const, Am V; State constitutional interpretation; Alleged use of an invocation of right to silence; Consciousness of guilt; Oregon v Kennedy; Pool v Superior Court (AZ); People v Dawson

The court held that the Kennedy “intent to goad” standard does not properly effectuate Const 1963, art 1, § 15 double-jeopardy protections, and adopted the broader Pool standard for defense-requested mistrials based on prosecutorial misconduct. Defendant was charged with CCW after police found a handgun in the car he drove. At his first trial the prosecutor elicited testimony and argued in closing that his decision to end a police interview showed a “guilty conscience.” The trial court found the prosecutor had “essentially weaponized” defendant’s invocation of silence, granted his mistrial motion, but denied his request to bar retrial under Kennedy. He was convicted at a second trial. On appeal, the court rejected Kennedy under Michigan law, reasoning that its narrow rule “fails to fully realize the protections ensured by Article 1, § 15” because double-jeopardy interests may also be impaired by “intentional misconduct beyond goading.” The court held that retrial is barred when a mistrial is granted because of improper prosecutorial conduct, the conduct is not merely legal error, negligence, mistake, or insignificant impropriety but amounts to “intentional conduct which the prosecutor knows to be improper and prejudicial” and pursues for an improper purpose with indifference to a significant danger of mistrial or reversal, and the prejudice cannot be cured short of mistrial. It further held that courts should assess knowledge and intent through “objective factors,” including the prosecutor’s situation, case strength, evidence of knowledge and intent, and any danger of acquittal. Because the trial court applied Kennedy and did not make the findings necessary under Pool, the court vacated the Court of Appeals’ judgment (which affirmed the trial court) and remanded for application of the new state standard.

Justice Zahra, joined by Justice Bernstein, dissented. He concluded that the majority improperly abandoned Dawson and decades of cases recognizing that Const 1963, art 1, § 15 is interpreted consistently with the Fifth Amendment. He reasoned the ratifiers intended to provide the “same double jeopardy protection” as federal law, that the majority did not identify a “compelling reason” or conduct a stare decisis analysis, and that the Arizona Pool test had “no relation” to Michigan’s constitutional text or ratifier intent. He also would have affirmed because neither Kennedy nor Pool was satisfied where the prosecutor opposed mistrial, the trial court credited his explanation that he was trying “to get the jury to find [defendant] guilty, not for a mistrial,” and the conduct at most reflected negligence or mistake rather than intentional misconduct.

School threats; MCL 750.235b(1) & (2); True threats; First Amendment; Bindover; Probable cause; Specific intent; Overt act; Threats against school employees involving a firearm; Counterman v Colorado; Virginia v Black; People v Johnson; People v Gerhard

The court held that sufficient evidence supported defendant’s bindover under MCL 750.235b(2), and that his alleged statements could be treated as unprotected true threats rather than protected speech. Defendant, a high school senior who had been banned from school property, allegedly said at a friend’s house that if the school did not let him walk at graduation, he “was going to go in and shoot the principal and the teachers,” and he also talked about killing the school liaison officer. The district court bound him over, and the circuit court denied his motion to quash. On appeal, the court held that MCL 750.235b must be construed to prohibit only “true threats” to avoid violating the First Amendment. It concluded that the prosecution presented sufficient evidence at the preliminary examination because the witness testified he understood the statements to mean defendant “was going to kill them,” believed he was “more serious about it” than other things he said, and thought he “seemed real sincere.” The court rejected his claim that he was merely venting or was a known blowhard because disputes about his actual intent “must be reserved to the trier of fact.” It also held that the witness’s two-week delay in reporting the statements did not defeat bindover because, in Michigan, “the threat is completed when the speaker intentionally communicates the threat to the listener.” Finally, the court rejected his argument that a true threat must be communicated directly to the intended target, explaining that the statute requires a threat to be “communicated to someone” but not “directly communicated to its intended target.” Affirmed.

Breach of a pastor’s employment contract; Vincent v Raglin; Application of the ecclesiastical abstention doctrine; Winkler by Winkler v Marist Fathers of Detroit, Inc; Smith v Calvary Christian Church; The “ministerial exception” to employment-discrimination law; Weishuhn v Catholic Diocese of Lansing; Intentional interference with contractual relations; International Outdoor, Inc v SS Mitx, LLC; Corporate agents’ liability; Reed v Michigan Metro Girl Scout Council; Defamation; Ghanam v Does

The court held that plaintiff-former pastor’s breach of employment contract claim was properly dismissed under the ecclesiastical abstention doctrine. Further, his tortious-interference claim failed because he could not “establish that the individual defendants were third parties to the” contract. Finally, a determination necessary to deciding his defamation claim “would impermissibly intrude on matters of church organization and polity.” Thus, the court affirmed the orders dismissing the case, which arose from defendant-church’s termination of his employment as its senior pastor. Plaintiff asserted two theories of contract “breach: ‘First, by organizing, announcing, and holding [two meetings] in violation of the Contract. Second, by terminating [plaintiff’s] employment for actions that were well within the scope of his contractual rights.’” The court noted that, under Winkler, the question was “whether adjudicating either theory would require a civil court to resolve ecclesiastical questions reserved to the church. Both theories would require that inquiry, and the trial court properly abstained.” The question of “whether the church and its leadership exceeded their authority in” terminating his employment was not one for the courts. The court found that “even the seemingly straightforward question whether the termination process in plaintiff’s employment agreement was followed cannot be answered here through neutral legal principles without infringing on the religious liberty of the church and its members.” As to his tortious-interference claim, it was “based on actions the individual defendants allegedly took as church officers, trustees, deacons, or members of church leadership.” He also did not establish that they “acted solely for their own benefit and with no benefit to the church.” As to the defamation claim, the court disagreed “with the trial court’s reasoning that the allegedly defamatory statement was not provable as false.” But it would only be provable as false “if the trial court parsed the agreement and determined which powers belonged to the senior pastor.” He contended the “agreement authorized him to access the church’s bank accounts. Church leadership maintained that it did not. That dispute concerns church polity, and it must be resolved by the church.”

Breach of a pastor’s employment contract; Vincent v Raglin; Application of the ecclesiastical abstention doctrine; Winkler by Winkler v Marist Fathers of Detroit, Inc; Smith v Calvary Christian Church; The “ministerial exception” to employment-discrimination law; Weishuhn v Catholic Diocese of Lansing; Intentional interference with contractual relations; International Outdoor, Inc v SS Mitx, LLC; Corporate agents’ liability; Reed v Michigan Metro Girl Scout Council; Defamation; Ghanam v Does

The court held that plaintiff-former pastor’s breach of employment contract claim was properly dismissed under the ecclesiastical abstention doctrine. Further, his tortious-interference claim failed because he could not “establish that the individual defendants were third parties to the” contract. Finally, a determination necessary to deciding his defamation claim “would impermissibly intrude on matters of church organization and polity.” Thus, the court affirmed the orders dismissing the case, which arose from defendant-church’s termination of his employment as its senior pastor. Plaintiff asserted two theories of contract “breach: ‘First, by organizing, announcing, and holding [two meetings] in violation of the Contract. Second, by terminating [plaintiff’s] employment for actions that were well within the scope of his contractual rights.’” The court noted that, under Winkler, the question was “whether adjudicating either theory would require a civil court to resolve ecclesiastical questions reserved to the church. Both theories would require that inquiry, and the trial court properly abstained.” The question of “whether the church and its leadership exceeded their authority in” terminating his employment was not one for the courts. The court found that “even the seemingly straightforward question whether the termination process in plaintiff’s employment agreement was followed cannot be answered here through neutral legal principles without infringing on the religious liberty of the church and its members.” As to his tortious-interference claim, it was “based on actions the individual defendants allegedly took as church officers, trustees, deacons, or members of church leadership.” He also did not establish that they “acted solely for their own benefit and with no benefit to the church.” As to the defamation claim, the court disagreed “with the trial court’s reasoning that the allegedly defamatory statement was not provable as false.” But it would only be provable as false “if the trial court parsed the agreement and determined which powers belonged to the senior pastor.” He contended the “agreement authorized him to access the church’s bank accounts. Church leadership maintained that it did not. That dispute concerns church polity, and it must be resolved by the church.”

Double jeopardy; Prosecutorial misconduct; Mistrial; Retrial; Const 1963, art 1, § 15; US Const, Am V; State constitutional interpretation; Alleged use of an invocation of right to silence; Consciousness of guilt; Oregon v Kennedy; Pool v Superior Court (AZ); People v Dawson

The court held that the Kennedy “intent to goad” standard does not properly effectuate Const 1963, art 1, § 15 double-jeopardy protections, and adopted the broader Pool standard for defense-requested mistrials based on prosecutorial misconduct. Defendant was charged with CCW after police found a handgun in the car he drove. At his first trial the prosecutor elicited testimony and argued in closing that his decision to end a police interview showed a “guilty conscience.” The trial court found the prosecutor had “essentially weaponized” defendant’s invocation of silence, granted his mistrial motion, but denied his request to bar retrial under Kennedy. He was convicted at a second trial. On appeal, the court rejected Kennedy under Michigan law, reasoning that its narrow rule “fails to fully realize the protections ensured by Article 1, § 15” because double-jeopardy interests may also be impaired by “intentional misconduct beyond goading.” The court held that retrial is barred when a mistrial is granted because of improper prosecutorial conduct, the conduct is not merely legal error, negligence, mistake, or insignificant impropriety but amounts to “intentional conduct which the prosecutor knows to be improper and prejudicial” and pursues for an improper purpose with indifference to a significant danger of mistrial or reversal, and the prejudice cannot be cured short of mistrial. It further held that courts should assess knowledge and intent through “objective factors,” including the prosecutor’s situation, case strength, evidence of knowledge and intent, and any danger of acquittal. Because the trial court applied Kennedy and did not make the findings necessary under Pool, the court vacated the Court of Appeals’ judgment (which affirmed the trial court) and remanded for application of the new state standard.

Justice Zahra, joined by Justice Bernstein, dissented. He concluded that the majority improperly abandoned Dawson and decades of cases recognizing that Const 1963, art 1, § 15 is interpreted consistently with the Fifth Amendment. He reasoned the ratifiers intended to provide the “same double jeopardy protection” as federal law, that the majority did not identify a “compelling reason” or conduct a stare decisis analysis, and that the Arizona Pool test had “no relation” to Michigan’s constitutional text or ratifier intent. He also would have affirmed because neither Kennedy nor Pool was satisfied where the prosecutor opposed mistrial, the trial court credited his explanation that he was trying “to get the jury to find [defendant] guilty, not for a mistrial,” and the conduct at most reflected negligence or mistake rather than intentional misconduct.

School threats; MCL 750.235b(1) & (2); True threats; First Amendment; Bindover; Probable cause; Specific intent; Overt act; Threats against school employees involving a firearm; Counterman v Colorado; Virginia v Black; People v Johnson; People v Gerhard

The court held that sufficient evidence supported defendant’s bindover under MCL 750.235b(2), and that his alleged statements could be treated as unprotected true threats rather than protected speech. Defendant, a high school senior who had been banned from school property, allegedly said at a friend’s house that if the school did not let him walk at graduation, he “was going to go in and shoot the principal and the teachers,” and he also talked about killing the school liaison officer. The district court bound him over, and the circuit court denied his motion to quash. On appeal, the court held that MCL 750.235b must be construed to prohibit only “true threats” to avoid violating the First Amendment. It concluded that the prosecution presented sufficient evidence at the preliminary examination because the witness testified he understood the statements to mean defendant “was going to kill them,” believed he was “more serious about it” than other things he said, and thought he “seemed real sincere.” The court rejected his claim that he was merely venting or was a known blowhard because disputes about his actual intent “must be reserved to the trier of fact.” It also held that the witness’s two-week delay in reporting the statements did not defeat bindover because, in Michigan, “the threat is completed when the speaker intentionally communicates the threat to the listener.” Finally, the court rejected his argument that a true threat must be communicated directly to the intended target, explaining that the statute requires a threat to be “communicated to someone” but not “directly communicated to its intended target.” Affirmed.

Accomplice testimony; Accomplice jury instructions; M Crim JI 5.4 & 5.6; Waiver; Ineffective assistance of counsel; People v Young; People v Orlewicz

The court held that defendant waived his accomplice-instruction claim and failed to establish ineffective assistance of counsel based on counsel’s failure to request those instructions. Defendant was convicted of felony murder and firearm offenses after evidence showed he shot through an apartment door when a customer failed to fully pay a minor who was engaged in sex work and being trafficked by defendant. The court first held that he waived his challenge to the lack of M Crim JI 5.4 and 5.6 because, after the instructions were read, defense counsel responded, “No, Your Honor,” when asked whether there was any objection. The court reasoned counsel “affirmatively approved the instructions,” which extinguished any instructional error. Even if the issue were merely forfeited, the court held that defendant failed to show outcome-determinative plain error because the accomplice’s testimony was corroborated by another witness, surveillance footage, and cell-location evidence. It further reasoned that the jury was “fully aware of the reasons to approach” the accomplice’s testimony with care because it heard about her reduced charge, her plea agreement, and her possible incentive to shift blame. The court also held that defendant failed to show prejudice because the jury received general credibility instructions, was specifically instructed to consider the accomplice’s agreement with the prosecution, and counsel attacked her credibility during cross-examination and closing argument. Affirmed.

Departure sentence for second-degree murder; Reasonableness; Proportionality; People v Steanhouse; People v Dixon-Bey; People v Smith; OV 19 (interference with the administration of justice); MCL 777.49(c)

The court held that the trial court did not abuse its discretion by imposing an out-of-guidelines sentence for defendant’s second-degree murder conviction. Defendant was convicted of murdering and dismembering his girlfriend, whose body parts were found in garbage bags inside the home they shared. The guidelines range was 225 to 357 months, but the trial court imposed a 35-year minimum sentence after finding this was a “uniquely brutal case.” The court rejected defendant’s argument that the trial court improperly relied on conduct already accounted for by his mutilation conviction, reasoning that the trial court relied on the “particular brutality” of cutting the victim’s body into pieces while the parties’ infant son was in the house. The court also rejected defendant’s argument that OV 19 already accounted for his efforts to conceal the crime. It reasoned that defendant “did more than lie about the victim’s whereabouts” because he dismembered the body and attempted to conceal the evidence, and the trial court reasonably found the guidelines did not adequately reflect “the brutality and depravity of” that conduct. Affirmed.

Defense-of-others; People v Leffew; Reasonableness; People v Orlewicz; Necessity; People v Riddle; The Self-Defense Act; AWIGBH; Intent; Felonious assault

Concluding that a “rational juror could find beyond a reasonable doubt that defendant did not act in lawful defense of another[,]” the court affirmed his convictions. He was convicted of AWIGBH, felonious assault, and felony-firearm. The case arose from the nonfatal shooting of victim-M during a domestic dispute at a gas station. Defendant argued that the prosecution did not “present sufficient evidence to disprove his defense-of-others theory beyond a reasonable doubt.” The court disagreed. He used deadly force in twice firing a gun from close range at M. The dispositive question was whether he “honestly and reasonably believed that” another individual (B) “faced imminent death or great bodily harm and that shooting [M] was necessary to prevent that harm.” The court determined that a “rational juror could conclude that defendant’s belief was not reasonable. [M] and [B] were engaged in a fistfight. Neither man was armed.” While testimony indicated that M’s sister had a knife, she “was not participating in the fight, and there was no evidence that [M] had a weapon. More importantly, the testimony permitted the jury to find that [B] was not being overpowered when defendant fired. [B] had struck [M], the men had fallen or moved out of the vehicle, and [B] was on top of [M] when defendant shot him. This is consistent with both trial testimony and the video footage of this incident.” The court noted that after “the shooting, defendant had to be restrained from approaching again, which the jury could consider when evaluating whether his conduct reflected necessity rather than excessive force.” Further, testimony about prior threats did “not require a different result.” The court concluded that, even “accepting that some prior threat occurred, the jury could reasonably find that the prior threat did not make it reasonable for defendant to use deadly force months later, where [M] was unarmed, had not interacted with defendant at the gas station, and was involved in a fistfight in which [B] was on top.” The court also found that defendant’s testimony that he aimed for M’s legs did not “render the evidence insufficient.”

Motions to suppress; Wiretap evidence; Title III of the Omnibus Crime Control & Safe Streets Act; Necessity requirement; United States v Gardner; United States v Alfano; Facebook evidence; Overbreadth challenge to search warrants; United States v Hanna; Two-step warrant; FedRCrimP 41(e)(2)(B); Cell phone evidence; Probable cause; Sixth Amendment right to counsel; Prison-mail policy; Lack of any intrusion; The Confrontation Clause; Cross-examination; Sufficiency of the evidence; Conspiracy to distribute controlled substances & racketeering conspiracy; Sentencing; Procedural reasonableness; Enhancement under USSG § 2D1.1(b)(1); Acquitted-conduct amendment; § 1B1.3(c)

[This appeal was from the ED-MI.] The court held that defendants’ motions to suppress were properly denied, and rejected Sixth Amendment challenges related to a prison-mail policy and cross-examination of a confidential informant (CI). It held that there was sufficient evidence to support defendant-Fordham’s conspiracy to distribute controlled substances and racketeering conspiracy convictions. But it vacated his sentence on procedural grounds related to application of the § 2D1.1(b)(1) enhancement. He and defendants-Murff and Reid “held top posts within the Almighty Vice Lord Nation” (ALVN). They were each convicted of racketeering conspiracy, conspiracy to distribute controlled substances, and related crimes. On appeal, the court first held that the Murff wiretap application satisfied “each of the three necessity criteria” it has applied to Title III. Thus, the “challenged wiretap approval was lawful, as was the admission of the resulting evidence.” It next rejected Fordham and Reid’s overbreadth challenges to the search warrants that resulted in evidence from their Facebook accounts, and Reid’s similar challenge to the search warrant for his cell phone. Murff’s claim that a prison-mail policy violated his constitutional right to counsel failed because the policy did not constitute an intrusion. The only harm he alleged arose “from steps he took to avoid potential intrusions that could occur under the” policy – he did not claim that any “intrusion into his attorney-client relationship actually occurred.” As to Fordham’s confrontation claim, the court found that “the jury had sufficient evidence ‘to assess [Fordham’s] theory of bias’ and arguments about CI-27016’s truthfulness.” The testimony about the CI’s “criminal history was extensive” and questioning “probed his personal incentives to cooperate.” Next, the court held that there was “sufficient evidence tying Fordham to the drug conspiracy” and to support his racketeering conspiracy conviction, including his “status as the top Vice Lord in” Michigan, and “a bevy of predicate acts by Fordham and other AVLN members comprising drug and violent offenses[.]” But it remanded for his resentencing because “the district court did not squarely address [his] written acquitted-conduct objection” to § 2D1.1(b)(1). It affirmed defendants’ convictions.

Elliott-Larsen Civil Rights Act (ELCRA); Employment discrimination; Race, color, & national origin; Claims against the state; Court of Claims Act (COCA); MCL 600.6431(1); Notice requirement; Sovereign immunity; Circuit court jurisdiction; Tyrrell v University of MI; Christie v Wayne State Univ; Retroactivity; Landin v Department of Health & Human Servs; Flamont v Department of Corrs; Hudson v Department of Corrs

The court held that plaintiff’s ELCRA claims against the state defendants were barred because he failed to comply with MCL 600.6431(1)’s notice requirement, and Christie applies retroactively. Plaintiff, a state trooper, sued in circuit court alleging he was denied promotions based on race, color, and national origin. When he filed the complaint, Tyrrell held that a circuit-court plaintiff did not need to comply with COCA’s notice provision, but Christie later overruled Tyrrell and held that “all parties with claims against the state” must comply with MCL 600.6431(1) unless expressly exempted. The court rejected plaintiff’s argument that Christie should not apply retroactively. It explained that after conflicting decisions in Landin and Flamont, the conflict-panel decision in Hudson overruled Landin and held that Christie applies retroactively “to all cases,” including those pending in circuit court while Tyrrell remained controlling. Because plaintiff conceded he did not file the required notice, the trial court properly granted summary disposition. Affirmed.

No-fault insurance; PIP benefits; Pedestrian injury; Resident relative; MCL 500.3114(1); MCL 500.3115; Rescission; Material misrepresentation; Innocent third party; Equitable balancing; Bazzi v Sentinel Ins Co; Sherman v Progressive MI Ins Co; Pioneer State Mut Ins Co v Wright; Medical provider claim; MCL 500.3112; MCL 500.3172; Michigan Automobile Insurance Placement Facility (MAIPF); Michigan Assigned Claims Plan (MACP)

The court held that the trial court did not abuse its discretion by declining to extend rescission of the no-fault policy to plaintiff or intervening plaintiff, and that the MAIPF was not liable while defendant-CURE’s policy remained applicable. Plaintiff was injured as a pedestrian and sought PIP benefits as a domiciled relative of the named insured, who had materially misrepresented household members and vehicle ownership in her application. The court first held that rescission was not required as to plaintiff. Although CURE “made a ‘diligent effort . . . to discover contradictions or omissions” in the application and plaintiff could alternatively seek benefits through the MAIPF, the record showed no evidence plaintiff knew of the misrepresentations and no evidence she acted recklessly or negligently in the accident. Because CURE bore the burden to show rescission was warranted, the trial court’s refusal to rescind as to plaintiff was within the range of reasonable outcomes. The court next held that rescission did not bar intervening plaintiff-DMC’s provider claim because the Legislature amended the No-Fault Act to “explicitly allow medical providers to bring direct actions” against insurers, and CURE failed to show the equities favored rescission as to DMC. Finally, because applicable personal protection insurance existed through CURE, plaintiff and DMC could not recover through the MACP, which applies only when “[n]o personal protection insurance is applicable to the injury.” Affirmed.

No-fault insurance; PIP benefits; Pedestrian injury; Resident relative; MCL 500.3114(1); MCL 500.3115; Rescission; Material misrepresentation; Innocent third party; Equitable balancing; Bazzi v Sentinel Ins Co; Sherman v Progressive MI Ins Co; Pioneer State Mut Ins Co v Wright; Medical provider claim; MCL 500.3112; MCL 500.3172; Michigan Automobile Insurance Placement Facility (MAIPF); Michigan Assigned Claims Plan (MACP)

The court held that the trial court did not abuse its discretion by declining to extend rescission of the no-fault policy to plaintiff or intervening plaintiff, and that the MAIPF was not liable while defendant-CURE’s policy remained applicable. Plaintiff was injured as a pedestrian and sought PIP benefits as a domiciled relative of the named insured, who had materially misrepresented household members and vehicle ownership in her application. The court first held that rescission was not required as to plaintiff. Although CURE “made a ‘diligent effort . . . to discover contradictions or omissions” in the application and plaintiff could alternatively seek benefits through the MAIPF, the record showed no evidence plaintiff knew of the misrepresentations and no evidence she acted recklessly or negligently in the accident. Because CURE bore the burden to show rescission was warranted, the trial court’s refusal to rescind as to plaintiff was within the range of reasonable outcomes. The court next held that rescission did not bar intervening plaintiff-DMC’s provider claim because the Legislature amended the No-Fault Act to “explicitly allow medical providers to bring direct actions” against insurers, and CURE failed to show the equities favored rescission as to DMC. Finally, because applicable personal protection insurance existed through CURE, plaintiff and DMC could not recover through the MACP, which applies only when “[n]o personal protection insurance is applicable to the injury.” Affirmed.

Building & fire code compliance; The 2015 International Fire Code (2015 IFC); The 2015 Michigan Building Code (2015 MBC); Keeping or maintaining a “dangerous building”; MCL 125.538; MCL 125.539; “Custodial care” (2015 MBC § 202); Institutional Group I-1 classification; 2015 MBC § 308.3; Institutional Group I-2 occupancy; 2015 MBC § 308.4; “Limited”

Concluding that the record was factually deficient, the court held that the trial court erred in approving plaintiff’s evacuation “plan as constituting limited assistance under the I-1 condition 2 use occupancy classification.” Plaintiff operates an assisted care and memory care facility for the elderly. Defendants argued the trial court erred in approving plaintiff’s plan because the second and third floors of the facility “were incompatible with the mandates of an I-1 condition 2 occupancy under the fire and building codes.” Defendants also argued the trial court did not make sufficient factual findings. The court agreed. There was no dispute “the facility was required to comply with the 2015 MBC and 2015 IFC.” Defendants asserted that “plaintiff’s proposed plan did not comply with the requirements of an I-1 condition 2 occupancy because the amount of labor required to evacuate 75 bedridden residents from the second and third floors constituted more than mere ‘limited assistance.’” Plaintiff asserted the number of such “residents suggested by defendants was contrived, asserting residents on the upper floors are not provided any medical assistance and typically relocate to a different facility when their health declines.” The court concluded that the trial court’s decision as to “limited assistance was erroneous because the record was unclear regarding the exact number of residents living on the second and third floors who are (1) able to self-evacuate, (2) require assistance to evacuate, and (3) are bedridden or otherwise incapable of evacuating independently or with limited assistance. Without further factual development, the limited record” did not enable the court to decide the issue. It noted that plaintiff must show “precisely how it plans to execute the evacuation. That necessarily mandates an understanding of which residents require assistance, if any.” The court also noted that the “plain language of the I-1 condition 2 occupancy under section 308.3.2 of the 2015 MBC, as well as the 2015 IFC provision governing I-1 condition 2 occupancy, requires a ‘complete building evacuation.’” Due to the lack of information about “the number of employees to attend to the respective residents and the time frame involved, it was unclear whether residents would be taking refuge in the stairwells.” Vacated and remanded.

Building & fire code compliance; The 2015 International Fire Code (2015 IFC); The 2015 Michigan Building Code (2015 MBC); Keeping or maintaining a “dangerous building”; MCL 125.538; MCL 125.539; “Custodial care” (2015 MBC § 202); Institutional Group I-1 classification; 2015 MBC § 308.3; Institutional Group I-2 occupancy; 2015 MBC § 308.4; “Limited”

Concluding that the record was factually deficient, the court held that the trial court erred in approving plaintiff’s evacuation “plan as constituting limited assistance under the I-1 condition 2 use occupancy classification.” Plaintiff operates an assisted care and memory care facility for the elderly. Defendants argued the trial court erred in approving plaintiff’s plan because the second and third floors of the facility “were incompatible with the mandates of an I-1 condition 2 occupancy under the fire and building codes.” Defendants also argued the trial court did not make sufficient factual findings. The court agreed. There was no dispute “the facility was required to comply with the 2015 MBC and 2015 IFC.” Defendants asserted that “plaintiff’s proposed plan did not comply with the requirements of an I-1 condition 2 occupancy because the amount of labor required to evacuate 75 bedridden residents from the second and third floors constituted more than mere ‘limited assistance.’” Plaintiff asserted the number of such “residents suggested by defendants was contrived, asserting residents on the upper floors are not provided any medical assistance and typically relocate to a different facility when their health declines.” The court concluded that the trial court’s decision as to “limited assistance was erroneous because the record was unclear regarding the exact number of residents living on the second and third floors who are (1) able to self-evacuate, (2) require assistance to evacuate, and (3) are bedridden or otherwise incapable of evacuating independently or with limited assistance. Without further factual development, the limited record” did not enable the court to decide the issue. It noted that plaintiff must show “precisely how it plans to execute the evacuation. That necessarily mandates an understanding of which residents require assistance, if any.” The court also noted that the “plain language of the I-1 condition 2 occupancy under section 308.3.2 of the 2015 MBC, as well as the 2015 IFC provision governing I-1 condition 2 occupancy, requires a ‘complete building evacuation.’” Due to the lack of information about “the number of employees to attend to the respective residents and the time frame involved, it was unclear whether residents would be taking refuge in the stairwells.” Vacated and remanded.

Finding grounds for termination based on respondents’ nolo contendere pleas; In re Hudson; Due process claims based on delays in the proceedings; Plain error review; Prejudice; Reasonable reunification efforts; In re Atchley; Child’s best interests; In re White; In re Simpson; Effect of the fact a visiting judge presided over the best interests hearing

The court held that respondents-parents were not entitled to relief on their challenge to the sufficiency of the evidence to support grounds for termination, and that respondent-father failed to show prejudice as to his due process claim based on case delays. It further concluded that the “DHHS provided respondents with services tailored to facilitate reunification, but [they] failed to make sufficient and timely progress.” Finally, the record supported the trial court’s finding that termination was in the child’s best interests, and the court found no plain error due to a visiting judge presiding over the best-interests hearing. The record showed the trial court found multiple statutory grounds for termination, “relying on respondents’ nolo contendere pleas . . . .” By entering a plea to a petition’s allegations, a “respondent waives the right to later challenge on appeal the sufficiency of the evidence supporting the statutory grounds for termination, unless there is a claim that the admissions were not made knowingly, voluntarily, or understandingly.” The court noted that respondents did not assert “there were irregularities in the plea proceedings or that their admissions were not knowingly, understanding, and voluntarily made.” As to his due process argument, the father contended “that delays in child-protective proceedings are inherently prejudicial.” But the court found that the delays here afforded him “several opportunities that worked to his benefit.” As to reunification efforts, “the principal barrier to reunification was respondents’ longstanding substance abuse.” The record showed the “DHHS undertook significant and ongoing efforts to assist” them in overcoming it. The “DHHS provided multiple referrals for substance abuse assessments, counseling, inpatient and outpatient treatment programs, and regular drug screenings. Respondents were repeatedly encouraged to seek and participate in inpatient treatment but continued to struggle with substance use throughout the proceedings.” As to the child’s best interests, the record showed that the parent-child relationship was not “healthy or secure[,]” the child was thriving in her foster mother’s care, and needed a secure and permanent home, but respondents continued to be unable to meet her needs.