Candidate affidavits of identity (AOIs); MI Admin Code, R 168.5 (7-day deadline for challenges to AOIs/good-cause exception); R 168.3 (a candidate’s ability to correct information in a filed AOI); MCL 168.164 & 168.558(1); AOI validity; Failure to list a former name; MCL 168.558(2) & (3); Exception for common-law names; MCL 168.560b(3); Statutory name-change procedures (MCL 711.1(1)); Department guidelines for common-law names; Applicability of the Administrative Procedures Act’s (APA) procedures for promulgating rules; Court of Claims (COC)

In consolidated appeals, the court rejected plaintiff’s challenges to the validity of two administrative rules related to candidate AOIs, and his contention that Department of State guidelines for common-law names should have been promulgated as rules under the APA. It also held that a candidate’s AOI did not need to indicate a name change, and found that plaintiff’s issues as to another candidate were moot. Thus, it affirmed the COC decisions in both appeals. In Docket No. 380907, plaintiff challenged the validity of Rule 168.5, which “imposes a 7-day period for challenging a candidate’s AOI” and gives filing officials “discretion to accept late challenges on a showing of good cause.” The court held the COC did not err in ruling plaintiff did not show that the rule’s “temporal limit” was invalid. Michigan’s “election statutes are silent about the procedures for officials to use when weighing AOI challenges. This silence is precisely the type of scenario that is appropriate for administrative rulemaking.” The court also found “no part of the challenged rule that goes beyond the parameters of defendant’s statutory authority, nor any part of the rule that is contrary to the Legislature’s intent.” Further, it found no merit in his “assertion that the good-cause exception is arbitrary or capricious.” The court concluded the county clerk “had the authority to reject plaintiff’s untimely challenge to” a nonparty candidate’s (E) AOI. And plaintiff’s “prolonged delay” in challenging E’s AOI after the deadline undermined his ability to show good cause. He also challenged the validity of Rule 168.3, which relates “to a candidate’s ability to correct information on” a filed AOI. He asserted it conflicts with MCL 168.164 and 168.558(1). But neither statute “deals with amending AOIs. There is a ‘gap’ in the statutory scheme when it comes to amending AOIs” and the rule “fills that gap.” Plaintiff’s claims in Docket No. 380909 concerned another nonparty candidate’s (M) “failure to list a former name on the AOI.” When MCL 168.558(3)(e) and “168.560b(3) are read together, a candidate’s AOI need not list a candidate’s name change if the candidate goes by a name that is a common-law name that meets the requirements of MCL 168.560b(3).” And because “the statutory name-change method did not abrogate the common law,” plaintiff’s argument here had no merit. M qualified for the exception in MCL 168.558(3)(e).

Excessive force claim under 42 USC § 1983: Fourth Amendment “seizure”; Torres v Madrid; Qualified immunity; Whether each defendant “seized” plaintiff; Reasonableness of the use of force; Graham v Connor; Probable cause to believe plaintiff posed an immediate threat; State-law claims; Whether defendants were entitled to “official immunity” under Michigan law; “Good faith”

[This appeal was from the ED-MI.] The court held that defendant-Thompson was entitled to qualified immunity on plaintiff-Ward’s excessive force claim because he did not seize Ward by acquiring control over him and his “shots did not contribute to Ward’s ‘immediate restraint’ in any way because he continued to run out the door afterward.” As to defendant-Brotzke, he was entitled to qualified immunity because his use of force was reasonable. The court also held that Ward’s state law claims failed because both officers were entitled to official immunity under Michigan law. When conducting a “sweep” at a convenience store, an officer noticed a gun handle protruding from Ward’s pocket. Ward admitted that he had no license for a concealed pistol and ran. “Seeing that Ward was armed, Thompson yelled” a warning and fired twice. His shots missed. Brozke fired four times at Ward as Ward ran toward and out the door. Ward was hit four times and required hospitalization and surgery. He sued for excessive force under federal and state law. The district court granted the officers summary judgment based on qualified immunity. On appeal, the court noted that the Supreme Court clarified in Torres that “there are two types of seizures under the Fourth Amendment: ‘(1) use of force with the intent to restrain; or (2) show of authority with acquisition of control.’” The court concluded that some of its “prior cases are no longer good law to the extent that they hold that an officer can seize a suspect even if the officer [] (1) had no physical contact with a suspect personally or from a weapon, and (2) failed to prevent the suspect from further movement.” Here, Ward’s excessive force claim against Thompson failed because Thompson did not seize him. As to whether Brotzke’s use of force was reasonable, the court applied the Graham factors. It was “undisputed that Ward resisted arrest and attempted to flee. As to the severity of the crime, carrying a gun without a permit is a felony in Michigan.” And the court concluded that “Brotzke had probable cause to believe Ward posed an immediate threat.” He testified that he did not see Ward had dropped the gun and he did not know who had fired the two shots he heard. A video showed “Ward dropped the weapon less than a second before Brotzke began firing.” Further, it was not unreasonable “to think that Ward was the shooter and posed a threat to the officers or others[.]” Thus, the court held that Brotzke was also properly granted qualified immunity. As to Ward’s Michigan law claims, the court held that defendants “reasonably believed they properly used deadly force.” Affirmed.

Excessive force claim under 42 USC § 1983: Fourth Amendment “seizure”; Torres v Madrid; Qualified immunity; Whether each defendant “seized” plaintiff; Reasonableness of the use of force; Graham v Connor; Probable cause to believe plaintiff posed an immediate threat; State-law claims; Whether defendants were entitled to “official immunity” under Michigan law; “Good faith”

[This appeal was from the ED-MI.] The court held that defendant-Thompson was entitled to qualified immunity on plaintiff-Ward’s excessive force claim because he did not seize Ward by acquiring control over him and his “shots did not contribute to Ward’s ‘immediate restraint’ in any way because he continued to run out the door afterward.” As to defendant-Brotzke, he was entitled to qualified immunity because his use of force was reasonable. The court also held that Ward’s state law claims failed because both officers were entitled to official immunity under Michigan law. When conducting a “sweep” at a convenience store, an officer noticed a gun handle protruding from Ward’s pocket. Ward admitted that he had no license for a concealed pistol and ran. “Seeing that Ward was armed, Thompson yelled” a warning and fired twice. His shots missed. Brozke fired four times at Ward as Ward ran toward and out the door. Ward was hit four times and required hospitalization and surgery. He sued for excessive force under federal and state law. The district court granted the officers summary judgment based on qualified immunity. On appeal, the court noted that the Supreme Court clarified in Torres that “there are two types of seizures under the Fourth Amendment: ‘(1) use of force with the intent to restrain; or (2) show of authority with acquisition of control.’” The court concluded that some of its “prior cases are no longer good law to the extent that they hold that an officer can seize a suspect even if the officer [] (1) had no physical contact with a suspect personally or from a weapon, and (2) failed to prevent the suspect from further movement.” Here, Ward’s excessive force claim against Thompson failed because Thompson did not seize him. As to whether Brotzke’s use of force was reasonable, the court applied the Graham factors. It was “undisputed that Ward resisted arrest and attempted to flee. As to the severity of the crime, carrying a gun without a permit is a felony in Michigan.” And the court concluded that “Brotzke had probable cause to believe Ward posed an immediate threat.” He testified that he did not see Ward had dropped the gun and he did not know who had fired the two shots he heard. A video showed “Ward dropped the weapon less than a second before Brotzke began firing.” Further, it was not unreasonable “to think that Ward was the shooter and posed a threat to the officers or others[.]” Thus, the court held that Brotzke was also properly granted qualified immunity. As to Ward’s Michigan law claims, the court held that defendants “reasonably believed they properly used deadly force.” Affirmed.

Other acts evidence; MRE 404(b); People v VanderVliet; People v Crawford; Modus operandi theory to prove identity; People v Golochowicz; Relevance; People v Sabin (After Remand)

Because the trial court failed to “specifically delineate the theory of admissibility at issue, the appropriate legal test to apply” (VanderVliet or Golochowicz), and analyze the respective test factors, the court vacated its order as to the proposed other acts evidence and remanded for further proceedings. Defendant was bound over on charges of open murder and felony-firearm. He moved to exclude the evidence, which concerned another shooting and text messages addressing his communications about “ghost guns and weapon jamming.” The trial court denied his motion and ruled the evidence admissible “‘except that the prior act be referred to as a shooting,’ as opposed to a ‘murder’ or ‘homicide.’” On appeal, in addition to reviewing the VanderVliet test, the court reviewed the Golochowicz test, which applies when the proponent of the “evidence presents a modus operandi theory to prove identity[.]” It noted that the “test for relevancy is stricter when used to prove identity.” The record showed that the prosecution sought admission of the other acts “evidence to establish identity as well as common scheme or plan. The trial court did not address and state whether the test of VanderVliet or Golochowicz applied.” The prosecution on appeal appeared to abandon admitting “the evidence on common scheme or plan grounds and” argued that an abuse of discretion did not occur under the Golochowicz test. The court concluded remand was required to determine whether admission was appropriate. It also noted that it did not appear from the “record that the text messages were submitted to allow the trial court to conduct an in-depth analysis of the issue. Rather, the trial court seemingly relied on its recollection of them from” a prior trial. Without the content of the messages, the court could not “determine from the record whether defendant complained about the pertinence of the texts as related to the modification or firing pin on the weapon, the role of ghost guns, and any correlation between the” other acts evidence. Thus, remand was also appropriate for the trial court to state its factual findings specifically. The court remanded “for the submission of the text messages and a determination of the admission of” other acts evidence given the prosecution’s apparent reliance on Golochowicz.

Sentencing; OV 4; Psychological injury; MCL 777.34(1)(a); People v Lampe; Departure sentence; Proportionality; People v Steanhouse; Lack of remorse; Untruthful testimony; Rehabilitation potential

The court held that the trial court did not err by scoring OV 4 at 10 points and did not abuse its discretion by imposing a departure sentence for defendant’s AWIGBH conviction. Defendant was convicted after an altercation with his adult daughter in which testimony showed that he fired gunshots, hit her in the face, and kicked her while she was on the ground in a fetal position. On appeal, the court first held that OV 4 was properly scored at 10 points because the trial court did not rely on speculation about a typical victim’s reaction, but instead “relied on the victim’s testimony about the assault and the effects of it” when finding serious psychological injury. The victim testified at sentencing about “nightmares, depression, and anxiety,” and the court held that this evidence, together with testimony that her father inflicted the injuries, was sufficient to support the score. The court next held that defendant’s 5-to-15-year departure sentence was proportionate even though his guidelines range was 10 to 46 months. It rejected his argument that the trial court improperly relied on acquitted conduct, explaining that “a fair reading of the sentencing transcript” showed the trial court referred to defendant’s conduct related to the conviction, including that he was “not owning” that he kicked and punched the victim and was “still taking the position that everybody else [was] lying[.]” The court also held that the trial court properly considered defendant’s lack of remorse because he claimed he was only defending his wife and suggested the victim had “some type of mental issue going on.” Finally, the court held that the guidelines did not fully account for the harm caused by the assault, including the damage to the victim’s relationships with her father, mother, and siblings. Affirmed.

Ineffective assistance of counsel; Expert consultation; People v Trakhtenberg; Hearsay; Medical-treatment exception; MRE 803(4); Child forensic interviews; People v Meeboer; Expert testimony; Secondary diagnoses; People v Thorpe; Prejudice; Strickland v Washington; Sufficiency of the evidence; CSC I; Penile-to-anal penetration; Sexual assault nurse examiner (SANE)

The court held that defendant received ineffective assistance of counsel requiring a new trial, but that sufficient evidence supported the challenged CSC I convictions involving one complainant. Defendant was convicted in consolidated cases of 10 CSC I counts involving 3 minors. After remand for a Ginther hearing, the trial court found trial counsel deficient but not prejudicial. On appeal, the court first held that counsel performed deficiently by failing to object to a doctor’s and a SANE’s testimony about the children’s statements because the testimony was hearsay, the examinations occurred “at the direction of the prosecutor,” and “no medical purpose was served by these examinations whatsoever.” The court next held that counsel was deficient for failing to challenge the doctor’s “secondary diagnoses” because there was no record evidence that she had psychological or psychiatric expertise, and the diagnoses “practically amounted to an opinion on whether complainants were telling the truth.” The court also found that counsel should have consulted, and likely called, an expert in forensic interviewing, suggestibility, and memory taint because the defense theory challenged the reliability of the disclosures, and expert testimony would have been “particularly helpful to the jury here.” As to prejudice, the court held that the three errors together “undermine confidence in the outcome” because the inadmissible testimony bolstered inconsistent testimony, the diagnoses likely generated sympathy, and the absence of a defense expert left the jury without expert framing on child memory and suggestibility. Finally, the court held that defendant was not entitled to acquittal on some counts because testimony that he did “the nasty stuff” while one complainant lay on her stomach, together with other witnesses’ observations, allowed a rational jury to find penile-to-anal penetration. Reversed and remanded.

Healthcare & wire fraud; The Confrontation Clause; Right to present a “complete defense”; FRE 403; Bolstering a witness’s credibility; Referring to the witness as an expert in front of the jury; Variance in the trial proofs from the conspiracy alleged in the indictment; Lay witness testimony interpreting text messages, FRE 701; Denial of a FedRCrimP 17(c) subpoena; Request for remand for a jury poll; Sentencing; Procedural reasonableness; Loss amount calculation; Sophisticated means enhancement; Substantive reasonableness; Restitution

[This appeal was from the ED-MI.] The court held that a witness in this healthcare and wire fraud case did not violate defendants’ Confrontation Clause rights where she could testify to her independent interpretation of data provided by others. It also held that they were not denied the right to present a complete defense by the district court’s exclusion of certain evidence, and they did not show that their substantial rights were affected by the district court’s referring to a witness as an expert in front of the jury. The court rejected their variance claim and their challenges to testimony under FRE 701. It upheld the denial of a motion to subpoena records under Rule 17(c), and rejected defendants’ sentencing challenges. A jury convicted defendants-Hamaed, Ghussin, Abdelrazzaq, and Fakhuri, who were pharmacists, of conspiracy to commit healthcare fraud and wire fraud. Fakhuri was also convicted of healthcare fraud. On appeal, they first challenged, on Confrontation Clause grounds, a witness’s (S) testimony about a government contractor’s (Qlarant) fraud investigation. S was a Qlarant employee. Defendants argued “that her expert opinion incorporated the opinions of nontestifying Qlarant analysts who verified that the data [S] relied on was complete.” But the court noted that S did not testify to another person’s out-of-court statements. “Defendants stipulated to the admissibility of the data[,]” and they had access to records and the inputs. S “testified to the work she personally performed. It does not matter that other people performed the same work before her.” The court rejected defendants’ claim that the district court’s evidentiary rulings made it impossible to offer “a complete defense” where they failed to show the exclusions were “‘arbitrary or disproportionate,’” or infringed on their “‘weighty interest[.]’” While the district court should not have referred to S “as an expert in front of the jury, and the government should not have asked it to do so[,]” defendants failed to show that this error affected their substantial rights. There also was no “variance” because the proof presented “was sufficient for the jury to find a single conspiracy” as alleged in the indictment rather than separate ones. Further, the district court did not abuse its discretion in permitting a lay witness to testify to his interpretation of text messages, and it properly denied a motion for a Rule 17(c) subpoena. The court also held that the sentences of Hamaed, Abdelrazzaq, and Ghussin were procedurally reasonable, concluding that the loss amounts were properly calculated and the district court properly applied a sophisticated means enhancement to Ghussin. Finally, it rejected his substantive reasonableness challenge, and upheld the imposition of restitution. Affirmed.

Candidate affidavits of identity (AOIs); MI Admin Code, R 168.5 (7-day deadline for challenges to AOIs/good-cause exception); R 168.3 (a candidate’s ability to correct information in a filed AOI); MCL 168.164 & 168.558(1); AOI validity; Failure to list a former name; MCL 168.558(2) & (3); Exception for common-law names; MCL 168.560b(3); Statutory name-change procedures (MCL 711.1(1)); Department guidelines for common-law names; Applicability of the Administrative Procedures Act’s (APA) procedures for promulgating rules; Court of Claims (COC)

In consolidated appeals, the court rejected plaintiff’s challenges to the validity of two administrative rules related to candidate AOIs, and his contention that Department of State guidelines for common-law names should have been promulgated as rules under the APA. It also held that a candidate’s AOI did not need to indicate a name change, and found that plaintiff’s issues as to another candidate were moot. Thus, it affirmed the COC decisions in both appeals. In Docket No. 380907, plaintiff challenged the validity of Rule 168.5, which “imposes a 7-day period for challenging a candidate’s AOI” and gives filing officials “discretion to accept late challenges on a showing of good cause.” The court held the COC did not err in ruling plaintiff did not show that the rule’s “temporal limit” was invalid. Michigan’s “election statutes are silent about the procedures for officials to use when weighing AOI challenges. This silence is precisely the type of scenario that is appropriate for administrative rulemaking.” The court also found “no part of the challenged rule that goes beyond the parameters of defendant’s statutory authority, nor any part of the rule that is contrary to the Legislature’s intent.” Further, it found no merit in his “assertion that the good-cause exception is arbitrary or capricious.” The court concluded the county clerk “had the authority to reject plaintiff’s untimely challenge to” a nonparty candidate’s (E) AOI. And plaintiff’s “prolonged delay” in challenging E’s AOI after the deadline undermined his ability to show good cause. He also challenged the validity of Rule 168.3, which relates “to a candidate’s ability to correct information on” a filed AOI. He asserted it conflicts with MCL 168.164 and 168.558(1). But neither statute “deals with amending AOIs. There is a ‘gap’ in the statutory scheme when it comes to amending AOIs” and the rule “fills that gap.” Plaintiff’s claims in Docket No. 380909 concerned another nonparty candidate’s (M) “failure to list a former name on the AOI.” When MCL 168.558(3)(e) and “168.560b(3) are read together, a candidate’s AOI need not list a candidate’s name change if the candidate goes by a name that is a common-law name that meets the requirements of MCL 168.560b(3).” And because “the statutory name-change method did not abrogate the common law,” plaintiff’s argument here had no merit. M qualified for the exception in MCL 168.558(3)(e).

The Governmental Tort Liability Act; Exceptions to governmental immunity; MCL 691.1407(7); Whether a government agency may be held civilly liable for violations of the MISS DIG Underground Facility Damage Prevention & Safety Act (the MISS DIG Act); Ability to file a complaint with the Public Service Commission (PSC); MCL 460.732; Amending a complaint to assert the sewage disposal system event (SDSE) exception; Notice requirement; MCL 691.1419

The court held that “MCL 691.1407(7) does not authorize a claim in circuit court for monetary damages against a governmental agency” for violations of the MISS DIG Act. It also held that the trial court prematurely granted plaintiff-Zezula’s motion to amend his complaint to assert the SDSE exception to governmental immunity before he “alleged compliance with the exception’s notice requirement.” Thus, the court reversed “Part III of the Court of Appeals’ opinion and the trial court’s order to the extent it” denied defendant-Independence Township summary disposition of Zezula’s claim under MCL 691.1407(7), and it vacated “Parts IV and V of the Court of Appeals’ opinion and the” trial court’s order to the extent it granted Zezula leave to amend his complaint. The case arose after he “suffered property damage when a damaged sewer line caused sewage to back up into his house.” He sought to hold the Township liable for allegedly failing to mark “township-owned sewer lines as required by the MISS DIG Act.” The court concluded that the trial court erred in denying the Township’s summary disposition motion on the basis “MCL 691.1407(7) provided the necessary exception to governmental immunity.” Rather, that statute, “which explicitly refers to the MISS DIG Act, provides the ability to file a complaint with the [PSC] as a means to avoid governmental immunity.” That is the one remedy provided to avoid governmental immunity for a violation of the Act. The court also found that “the trial court erred in granting Zezula’s oral motion for leave to amend his complaint to plead the SDSE exception to governmental immunity.” The Township alleged that he “failed to comply with the SDSE exception’s notice requirement, and” he did not respond when the Township pointed out that he “failed to meet that burden in a written motion and at a” motion hearing. Given “the alleged lack of notice and the failure to respond to Independence Township’s argument that Zezula did not provide the required notice, the trial court could not properly determine whether amendment to plead under the SDSE exception would be futile without addressing notice.” Remanded to the trial court for entry of an order granting the Township’s summary disposition motion “as to MCL 691.1407(7), reconsideration of Zezula’s motion for leave to amend, and” possible other further proceedings.

The Governmental Tort Liability Act; Exceptions to governmental immunity; MCL 691.1407(7); Whether a government agency may be held civilly liable for violations of the MISS DIG Underground Facility Damage Prevention & Safety Act (the MISS DIG Act); Ability to file a complaint with the Public Service Commission (PSC); MCL 460.732; Amending a complaint to assert the sewage disposal system event (SDSE) exception; Notice requirement; MCL 691.1419

The court held that “MCL 691.1407(7) does not authorize a claim in circuit court for monetary damages against a governmental agency” for violations of the MISS DIG Act. It also held that the trial court prematurely granted plaintiff-Zezula’s motion to amend his complaint to assert the SDSE exception to governmental immunity before he “alleged compliance with the exception’s notice requirement.” Thus, the court reversed “Part III of the Court of Appeals’ opinion and the trial court’s order to the extent it” denied defendant-Independence Township summary disposition of Zezula’s claim under MCL 691.1407(7), and it vacated “Parts IV and V of the Court of Appeals’ opinion and the” trial court’s order to the extent it granted Zezula leave to amend his complaint. The case arose after he “suffered property damage when a damaged sewer line caused sewage to back up into his house.” He sought to hold the Township liable for allegedly failing to mark “township-owned sewer lines as required by the MISS DIG Act.” The court concluded that the trial court erred in denying the Township’s summary disposition motion on the basis “MCL 691.1407(7) provided the necessary exception to governmental immunity.” Rather, that statute, “which explicitly refers to the MISS DIG Act, provides the ability to file a complaint with the [PSC] as a means to avoid governmental immunity.” That is the one remedy provided to avoid governmental immunity for a violation of the Act. The court also found that “the trial court erred in granting Zezula’s oral motion for leave to amend his complaint to plead the SDSE exception to governmental immunity.” The Township alleged that he “failed to comply with the SDSE exception’s notice requirement, and” he did not respond when the Township pointed out that he “failed to meet that burden in a written motion and at a” motion hearing. Given “the alleged lack of notice and the failure to respond to Independence Township’s argument that Zezula did not provide the required notice, the trial court could not properly determine whether amendment to plead under the SDSE exception would be futile without addressing notice.” Remanded to the trial court for entry of an order granting the Township’s summary disposition motion “as to MCL 691.1407(7), reconsideration of Zezula’s motion for leave to amend, and” possible other further proceedings.

Termination under § 19b(3)(c)(i); Medical neglect; Reasonable reunification efforts; Substance-abuse treatment; In re Frey; Children’s best interests; Relative placement; In re Olive/Metts Minors

The court held that the DHHS made reasonable reunification efforts, that § (c)(i) supported termination, and that termination was in the youngest child’s best interests, but that remand was required for a new best-interest determination as to the oldest child. The case began after medical neglect of the youngest child was confirmed following hospitalization for weight concerns and a diagnosis of failure to thrive. On appeal, the court first held that the DHHS made reasonable efforts to address respondent-mother’s substance abuse because it referred her to two outpatient providers, she was discharged from both for “inconsistent participation,” and the caseworker testified that respondent refused inpatient treatment when offered. The court next held that § (c)(i) was established because respondent did not consistently engage in mental-health services, did not benefit from parenting classes, lacked “gainful, legal employment,” and continued to test positive for meth. Although the court acknowledged that the evidence did not necessarily support housing instability, that error was harmless because “there was more than sufficient evidence” that respondent failed to rectify other conditions leading to adjudication. As to best interests, the court held that termination was proper for the youngest child because his improved condition in foster care supported termination where respondent’s barriers remained unresolved, his medical needs would “require greater than ordinary amounts of attention,” and the trial court found he needed “a consistent parent.” But the court vacated the best-interest ruling as to the oldest child because the trial court did not expressly consider that child’s placement with her biological father, and a court’s failure to address relative placement makes “the factual record inadequate to make a best-interest determination.” Affirmed in part, vacated in part, and remanded. The court retained jurisdiction.