The trial court abused its discretion when it failed to hold an evidentiary hearing.

In Cieslinski v Cieslinski, Unpub Per Curiam Opin of the Court of Appeals, (#319609, 11/13/2014) the trial court abused its discretion when it failed to hold an evidentiary hearing after one party in essence alleged that the other party fraudulently obtained the consent judgment. 

A consent judgment is the product of an agreement between the parties.  Generally, a party may obtain relief from a settlement agreement for mutual mistake, fraud, unconscionable advantage, or ignorance of a material term of the settlement agreement. MCR 2.612(C)(1)(c) allows a party to move the trial court to invalidate a judgment of divorce that was obtained on the basis of fraud. A party alleges fraud when he or she alleges (1) that the charged party made a material misrepresentation; (2) that it was false; (3) that when he or she made it he or she knew it was false, or made it recklessly, without any knowledge of its truth as a positive assertion; (4) that he or she made it with the intention that is should be acted upon by the other party; (5) that the other party acted in reliance upon it; and (6) that the other party thereby suffered injury.

In Kiefer v Kiefer, 212 Mich App 176, 183 (1995) this Court held that the trial court abuses its discretion when a party alleges fraud in a consent judgment but the trial court fails to hold an evidentiary hearing. The existence of a consent judgment does not, in and of itself, preclude the existence of fraud.  An evidentiary hearing is necessary to determine whether sufficient evidence of fraud exists.

8th Circuit Montcalm County Probationers Achieve Success with Structure Manual for Success

Introduction/Eligibility

The 8^th Circuit Probationers Achieve Success with Structure (P.A.S.S.) Specialty Court is for people who have been convicted of a crime with circumstances suggesting a need for comprehensive supervision and/or expanded services. Unless agreed by the parties, the court does not get involved unless and until a defendant is convicted by trial or plea of a criminal offense.  All pre-conviction proceedings remain as otherwise allowed by statute, case law or Supreme Court directive; and during the P.A.S.S. Specialty Court process the people and defendant retain all rights allowed under state and federal law.

The P.A.S.S. Specialty Court program is accessible regardless of race, religion, sex, gender status, ethnic origin, sexual orientation, marital status, age, mental or physical disability.

The purpose of the Probationers Achieve Success with Structure (P.A.S.S.) Specialty Court is to promote individual success, while maintaining compliance with probation rules and expectations by providing treatment, educational, social and employment services to probationers, increased supervision, and immediate, consistent, and predictable sanctions to at-risk probationers while reducing recidivism and maintaining community safety. 

PROGRAM DESCRIPTION

The P.A.S.S. is modeled in part after the Georgia Justice Project, Hawaii’s Opportunity Probation with Enforcement program, the Michigan Specialty Court concept and Prison Re-Entry Program to provide treatment, educational, social and employment services to probationers, increased supervision and swift and sure sanctions. 

Too often probation officers do not have the resources and tools to address the individual needs of their probationers.  Too often the missing component is education, employment and alternatives to criminal behavior.  The social services aspect would endeavor to provide probationers the social resources needed to regain positive control in their lives.  It may include weekly meetings, individual counseling, drug testing and any other programs necessary to help the client.  The educational and employment support services’ component would partner with other governmental entities, the educational and business community to provide education and training, assist with resume writing, employment interview preparation, providing contacts and working with the above entities to provide actual job opportunities. 

The wrap around approach will be complemented by the Department of Corrections and other local and state entities working with local law enforcement to ensure maximum supervision, including home visits, drug testing and role modeling.  Court involvement will provide any necessary sanctions, and incorporate the techniques utilized by the specialty courts. 

The program is not designed for mass implementation, but for probationers committed to changing their lifestyle and becoming productive members of the community.  Enrollment requires a fairly intensive interview process and a provisional trial period.

The P.A.S.S. Specialty Court has as its core two concepts:  1) Swift & Sure Sanctions (SSS) and 2) Adult Intensive Probation (AIP).  Both are specialty court concepts for probationers in need of more intensive supervision while on regular probation.  The idea being to achieve compliance with probationary terms, thereby enhancing the success of the probation process and, ultimately, reducing recidivism within the community and maintaining community safety.  Both concepts provide the following:

 

• A tailored, even-handed approach to praise and sanction as necessary;
• The expectation of compliance through quick, immediate and predictable sanctions;
• The expectation of well-timed, positive feedback and reinforcement from the Judge, Probation, P.A.S.S. team members and service/other entities for compliance;
• The use of incentives to encourage continued probation compliance and growth;
• A collaborative effort between the probation department, Judge, State and community entities, P.A.S.S. team members and local law enforcement, attorneys, and the county correction system to provide educational, social and employment services, and early intervention, while promoting safety in the community.

The SSS’s primary focus is compliance, with expedited sanctions for non-compliance. Probationers with drug or alcohol related offenses and/or have an identified drug or alcohol issue must submit to random drug and alcohol testing.  The AIP concept in conjunction with the Swift & Sure Sanction approach contemplates increased supervision of the probationer, with sanctions tailored individually to each situation and probationer to make the most impact. 

All terms and expectations of probation, including reporting and any other expectations, are subject to P.A.S.S. team assessment and review.  The probationer is required to attend in- court sessions, as requested by probation/judge/the P.A.S.S. team.   Law enforcement, educational, social, community and business representatives work together to provide supervision, educational, social and employment services and opportunities for P.A.S.S. probationers.  A goal being even to continue services during any incarceration. 

CONFIDENTIALITY

Probationers will be required to sign a release of information which allows treatment providers, employers, educators, other state and local entities to communicate/give information to the P.A.S.S. Specialty Court Team.  P.A.S.S. Team members will have regular contact with the above entities to discuss progress and compliance.  This lack of confidentiality/open communication allows for maximum, effective and consistent guidance.  It remains, however, the objective of this program to protect the privacy of  P.A.S.S. probationers to maintain the integrity and safety of the group.  Whenever possible personal issues discussed within the P.A.S.S. Specialty Court groups and Hearings should be kept private.

ADMISSIONS/ELIGIBILITY CRITERIA

 Probationers referred for the P.A.S.S. Program must meet the following criteria at the time of sentencing into the program:

• Probationer must be at least 17 years of age and sentenced on a felony offense.
• Probationers must have a high risk to reoffend; difficulty cooperating with authority; or history of two (2) or more probation failures due to noncompliance of probation or like history of two or more instances in school, work or family demonstrating a need for intensive supervision.
• Probationer must reside in Montcalm County or be able to be supervised by the P.A.S.S. Specialty Court.
• Probationer must have a demonstrated need for services (substance abuse, mental health, counseling, transportation, education, medical, employment, supervision, etc.) or other special circumstances.

REFERRAL PROCESS

 

A P.A.S.S. Program Referral Form must be completed by the referring Probation Agent/Officer, Attorney, Family member or other community representative.  The completed referral form, and the most recent Pre-Sentencing Investigation Report (PSI), Sentencing Information Report (SIR) and current Probation Order, is then forwarded to the P.A.S.S. team for screening.   Individual interviews may be requested.

If placed into the program, the probationer will be ordered to comply with all the rules, regulations, and expectations of the program, including all terms of probation and any special conditions…,” via amended probation order. 

 

ADULT INTENSIVE PROBATION (A.I.P.) SUPERVISION REQUIREMENTS

 

The following Adult Intensive Probation (A.I.P.) Supervision provisions shall apply to P.A.S.S. probationers:

In Person                              One per week

Home Visits                          Contact may be with the defendant and/or a resident   
                                               of his/her household.  Two (2) contacts per month.

Employment Status             Discuss with probationer one time per week.
                                               Collateral contact with employer or training provider, 
                                               or paystub verification per pay period received as
                                               soon as possible, after probationer obtains or enrolls,
                                               if appropriate.

LEIN Check                         Every other month, including driving record check.

                                               Five (5) days prior to discharge from Swift and Sure
                                               Probation Program date.

Restitution Review               Discuss with probationer during report day

Payment Review                   Discuss with probationer during report day

MAPS (Michigan                  As needed

Automated Prescription
System)                                  

In Court Sessions                  As needed            

Drug                                      As needed

Alcohol testing                                

Scram/tether                         As needed  

REPORT DAYS

Participants in the P.A.S.S. Specialty Court are expected to report to Probation on the assigned day and time.  P.A.S.S. probationers must bring any treatment, testing, employment, residence, community service, or self-help verification requested by the Probation Officer.  Any changes in the probationer’s life, such as address, roommates, employment, medication, etc., must be disclosed to your Probation Officer at report.

EMPLOYMENT AND/OR EDUCATION

 Participants in the P.A.S.S. Specialty Court may be required to obtain/maintain employment or enroll in an educational program to the best of one’s ability.  Probationers may also be required to perform community service.

PBT’s AND URINE SCREENS

Participants in the P.A.S.S. Specialty Court cannot use or possess alcohol or any controlled substance or substance for hallucinatory purposes without a court order, and may be required to submit to PBT’s and/or urine screens while in this program.   Any altered samples or diluted samples will be considered positive.  The issue of a missed PBT or urine screen will be addressed at the next review hearing.  A positive PBT/urine screen may result in immediate jail. 

P.A.S.S. TEAM EXPECTATIONS

P.A.S.S. team members are expected to abide by the following rules while in any Courtroom, in the Courthouse, or when dealing with probationers:

• Do not discuss any confidential information in public areas, hallways, or off-record in the Courtrooms.  If you must discuss client/confidential information, you must do so in a conference room.  It is unacceptable to do so while sitting in the gallery of a Courtroom.
• Present professionally at all times.
• Disclose any conflicts or possible conflicts immediately when known or believed to be possible.
• Educate the community and stake holders about the program.
• Assure program success internally and externally through team building.
• Stay abreast of service providers and programs they offer.
• Attend Team meetings.
• Assist with probationer resources, including but not limited to housing, transportation, treatment or other programs/needs as requested by the judge or probation agent.
• Assist with Community Service coordination, placement and tracking as requested.
• Provide consistent, verbal praise and recognition to probationers who comply with probation.
• Review and recommend sanctions consistent with the program’s philosophy for violations.

P.A. 200, effective June 24, 2014, changes the state's mental health laws to include substance abuse as a possible cause for involuntary treatment.

P.A. 200, effective June 24, 2014, changes the state's mental health laws to include substance abuse as a possible cause for involuntary treatment. A person's family member or a health professional can petition a court for involuntary treatment. The person would be guaranteed an independent expert evaluation and legal counsel. A judge could order treatment for up to 72 hours or until a hearing.

--------------------------------------------------------

CONTENT

The bill amends Chapter 2A (Substance Abuse Disorder Services) of the Mental Health Code to allow a court to order involuntary treatment for an adult who had a substance use disorder, under particular circumstances. The legislations allows for the following:

 --    Establish procedures and criteria for a person's spouse, family member, or guardian, or a health professional to petition a court to initiate proceedings for involuntary treatment.

 --    Require a petition to include a certified statement of a health professional who had examined the respondent to the petition (the person with the alleged disorder) or a statement that the respondent refused to undergo an examination.

 --    Require a court to examine a petitioner under oath, and schedule a hearing if it found probable cause to believe the respondent could reasonably benefit from treatment.

 --    Specify that a respondent could retain counsel or, if indigent, have court-appointed counsel at public expense.

 --    Allow a respondent to have an independent expert evaluation of his or her physical and mental condition conducted for the court hearing.

 --    Allow the court to order involuntary treatment if it found by clear and convincing evidence that the respondent had a substance use disorder; he or she presented an imminent danger or threat of danger to self, family, or others, or there was a substantial likelihood of the threat of danger in the near future; and he or she could reasonably benefit from treatment.

 --    Allow the court to order involuntary treatment for up to 72 hours or until a hearing.

 --    Require a person's release from involuntary treatment immediately when the court-ordered period expired.

 --    Specify that a respondent who failed to undergo and complete ordered treatment would be in contempt of court.

 --    Prohibit a respondent from being held in jail pending transportation to a program or evaluation unless the court previously found him or her in contempt of court for failure to undergo treatment or to appear at an ordered examination.

 --    Prescribe a misdemeanor penalty for certain violations related to filing a petition.

 --    Require a community mental health entity designated by the Department of Community Health to give the court a list of programs that were able and willing to take respondents ordered held for treatment.

Conclusory allegations insufficient to creat a genuine issue of material fact.

In Wiedyk v Poisson, __ Mich __ (#149431, 10/22/2014) the Supreme Court reversed the judgment of the Court of Appeals and reinstated the Circuit Court’s judgment for the defendants. The trial court was not required to expressly rule on whether the plaintiff’s attempt to expand the record on remand with his affidavit was proper.  Even if the affidavit was considered by the trial court, it did not err in determining that summary disposition for the defendants was warranted. When considered in light of the record developed in this case, the affidavit’s conclusory allegations regarding the extent of the plaintiff’s injuries and impairments, nearly all of which the plaintiff suffered prior to the accident in question, were insufficient to create a genuine issue of material fact as to whether the plaintiff’s ability to lead his pre-accident lifestyle was impacted by the 2005 accident. Quinto v Cross & Peters Co, 451 Mich 358, 362, 371-372 (1996); McCormick v Carrier, 487 Mich 180, 202 (2010); see also Bergen v Baker, 264 Mich App 376, 389  (2004).

Jurisdiction is with the Circuit Court for interlocutoy appeals of a probate court interlocutory order.

In Button v Oakland Livingston Human Service Agency, Unpub Per Curiam Opinion of the Court of Appeals, (#314952, 8/14/2014) the Court of Appeals held that the circuit court had jurisdiction to decide OLHSA’s application for leave to appeal the probate court order denying defendants’ motions for summary disposition. The order that OLHSA sought to appeal to the circuit court was an interlocutory order. See Mossing v Demlow Prods, Inc, 287 Mich App 87 780 (2010) (stating that an order denying summary disposition “is inherently interlocutory.).

 

The court rules governing probate court proceedings contain a subchapter on appeals, 5.800. MCR 5.801(D) addresses appeals from interlocutory orders of the probate court, and provides in pertinent part: An interlocutory order, such as an order regarding discovery; ruling on evidence; appointing a guardian ad litem; or suspending a fiduciary for failure to give a new bond, to file an inventory, or to render an account, may be appealed only to the circuit court and only by leave of that court. . . . [Emphasis added.]  The court rules governing appeals to the circuit court similarly provide that the circuit court has appellate jurisdiction over interlocutory orders of the probate court. MCR 7.103(B)(1)(a) provides that a “circuit court may grant leave to appeal from . . . a judgment or order of a trial court when . . . no appeal of right exists.” (Emphasis added; paragraph structure omitted). For the purposes of subchapter 7.100, “trial court” is defined as “the district, probate, or municipal court from which the ‘appeal’ is taken.” MCR 7.102(9).

the permissible use of two-way video technology

In People v Shaw, Unpub Per Curiam Opinion of the Court of Appeals (#314865, 8/21/2014) the Court held that the plain language of MCR 6.006(A) indicates that a trial court may not use a video conference to secure a defendant’s appearance when sentencing him for felony offenses rather than misdemeanor offenses.  Unless MCR 6.006(A) specifically allows for the hearing to be conducted via two-way interactive video technology, defendant must expressly agree to appear via video or (s)he has a right to be personally present at the hearing

 

“The Due Process Clause and the Confrontation Clause of the Sixth Amendment, as applied to the States via the Fourteenth Amendment, both guarantee to a criminal defendant . . . the right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.” Tennessee v Lane, 541 US 509, 523; 124 S Ct 1978 (2004) (quotation marks omitted). This right applies to the sentencing hearing, as well as the trial itself. People v Mallory, 421 Mich 229, 247 (1984); People v Palmerton, 200 Mich App 302, 304 (1993). The Michigan Court Rules further provide that a trial court may use two-way interactive video technology to conduct the following proceedings between a courtroom and a prison, jail, or other location: initial arraignments on the warrant or complaint, arraignments on the information, pretrial conferences, pleas, sentencings for misdemeanor offenses, show cause hearings, waivers and adjournments of extradition, referrals for forensic determination of competency, and waivers and adjournments of preliminary examinations. [MCR 6.006(A) (emphasis added).] “[W]e interpret court rules using the same principles that govern the interpretation of statutes.” People v Buie, 491 Mich 294, 304 (2012) (quotation marks omitted).

 

“It is a basic principle of statutory construction that the express mention of one thing implies the exclusion of other similar things.” People v Oswald, 208 Mich App 444, 446 (1995); see also People v Carruthers, 301 Mich App 590, 604 (2013). Thus, the plain language of MCR 6.006(A) indicates that a trial court may not use a video conference to secure a defendant’s appearance when sentencing him for felony offenses rather than misdemeanor offenses. Here, defendant was being sentenced for his felony convictions. MCL 750.224f(5); MCL 750.227b(1). Therefore, absent a defendant’s express agreement to appear via video, see People v Carter, 462 Mich 206, 217-218 (2000) (noting that a party can waive a “broad array of constitutional and statutory provisions”), a trial court must secure the defendant’s physical appearance at sentencing.

The reasonable preference of the child.

In Kubicki v Sharpe, Jr, __ Mich App __ (#317614, 8/28/2014) the Court of Appeals held that the circuit court legally and harmfully erred by failing to consider the child’s wishes when it made its best-interest determination.

In regard to factor i, the court stated, “The parties did not want the [c]ourt to interview the child. Therefore, his preference has not been considered by the [c]ourt.” Regardless whether the parties wished for an interview, the court was affirmatively required to consider the child’s preference.

 

“One of the . . . factors a trial judge must consider in a custody dispute is the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.” Bowers v Bowers, 190 Mich App 51, 55 (1991) (quotation marks and citation omitted). “Children of six, and definitely of nine, years of age are old enough to have their preferences given some weight in a custody dispute, especially where there was a prior custody arrangement.” Id. at 55-56.

 

At the time of the evidentiary hearing, the child was 10 years old, and as such, was “definitely . . . old enough to have [his] preference[] given some weight . . . .” Id. “The trial court’s failure to interview the child[] was error requiring reversal.” Id. at 56.
 

Because the circuit court did not consider DLS’s preference, we must vacate the circuit court’s order, and remand for a new custody hearing.

The mandatory assessment of costs against the party and attorney when a civil action or defense to a civil action was frivolous.

In Davis v Highland Park Board of Education, Unpub Opin of the Court of Appeals (#315002 and 316235, 7/24/2014), defendant argued  that the trial court erred in awarding attorney fees and costs against plaintiff only, instead of plaintiff and his attorney.

Statutory interpretation is a question of law that is considered de novo on appeal. Elba Twp v Gratiot County Drain Comm’r, 493 Mich 265, 278 (2013).  MCL 600.2591(1) provides: Upon motion of any party, if a court finds that a civil action or defense to a civil action was frivolous, the court that conducts the civil action shall award to the prevailing party the costs and fees incurred by that party in connection with the civil action by assessing the costs and fees against the nonprevailing party and their attorney.

“Because the Legislature’s use of the term ‘shall’ denotes that the sanctions are mandatory,” trial courts do not “have discretion to forgo sanctions on the basis of an internal policy.” Cvengros v Farm Bureau Ins, 216 Mich App 261 (1996).  Because MCL 600.2591(1) plainly provides that the court shall award costs and fees to the prevailing party by assessing them against the nonprevailing party and their attorney, the trial court erred in awarding attorney fees and costs against plaintiff only.

Court of Claims in the Court of Appeals

In Okrie v State of Michigan, et al, __ Mich App __ (#319550, 8/19/2014) the Court of Appeals addressed the recent legislation establishing the Court of Claims in the Court of Appeals and collaterally the process for disqualification of Court of Claims/Court of Appeals judges.  In Okrie, the Court recognized that the effect of PA 164 requires the Court of Appeals to simultaneously house an appellate court and a trial court of limited jurisdiction (Court of Claims). Upholding the constitutionality of PA 164, the Court of Appeals nevertheless acknowledged that a fair concern may exists with the appearance of how this direct appellate review will function. That an appeal as of right for Court of Claims cases is in essence a horizontal or lateral appeal, and that a peaceful governance based on principles such as the rule of law depends on the public’s trust that the judicial system is fairly and impartially deciding cases. PA 164, with its apparently unprecedented system of housing the trial court for state claims in the only appellate court of right, could contribute to distrust in the appellate process when it concerns Court of Claims matters. See Hunt, Legal Ethics—Attorney Conflicts of Interest—The Effect of Screening Procedures and the Appearance of Impropriety Standard on the Vicarious Disqualification of a Law Firm, 70 Tenn L Rev 251, 278 (2002).

 

Courts have long been critical of “horizontal” or “lateral” appeals. One cannot lose sight of the fact that appeals only lie from one court to another. There must be a competent judicial tribunal to pass upon a case before an appeal can be taken to a higher court. In other words, the appellate process must proceed vertically, not sideways.  However, PA 164 requires judges from the Court of Appeals to first hear Court of Claims cases at the trial court level, and then provides for direct review of those decisions, as of right, by their colleagues on the Court of Appeals. At first glance, such a procedure could be viewed as giving the appearance that there is no meaningful appellate review, and that the same court is merely rendering an appellate opinion on a matter that it already decided. However, nothing in PA 164 requires a Court of Claims judge to review his or her decisions in appeals filed in this Court, and there exist internal and external procedures to address any potential conflicts.

 

If there is a possible conflict or reason for disqualification, the Court of Appeals screens cases to identify potential conflicts, flags the cases, and then the judge in question decides whether recusal is necessary. See Internal Operating Procedure (IOP) 7.213(D)-(3) (providing, in pertinent part, that “[the Court screens cases to identify potential conflicts based on even minimal involvement of a current Court of Appeals judge at the trial court level . . . . If, upon assignment of a case, a judge on the panel discovers a prior connection to the case, the judge will decide whether recusal is necessary.”). Further, if a Court of Claims judge does not recuse himself or herself when assigned a Court of Claims matter on appeal, the parties are free to move for disqualification. See IOP 7.213(D)-(3) (providing that “[a] party seeking to disqualify a judge of the Court may file a motion to disqualify.”).   Canon 2 of the Michigan Code of Judicial Conduct provides that judges “must avoid all impropriety and appearance of impropriety.” Under Canon 2, whether an appearance of impropriety exists requires consideration of whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, and impartiality.

42 USC 407(a) precludes any order that would compel one to satisfy an obligation from the proceeds of one’s SSDI/SSI benefits.

In People v Lampart, __ Mich App __ (#315333, 7/31/2014) the Court of Appeals held that, to the extent the trial court’s consideration of SSDI benefits results in an order of restitution that could only be satisfied from those benefits, the use of the court’s contempt powers then would violate 42 USC 407(a).  As noted, the protection afforded to SSDI benefits extends after those benefits are received. Philpott, 409 US at 415-417; State Treasurer, 468 Mich at 155;Whitwood, 265 Mich App at 654. See also United States v Smith, 47 F3d 681, 684 (CA 4, 1995) (holding, under a federal statute employing similar language to 42 USC 407(a), that a court could not order restitution against benefits after they were received because “[t]he government should not be allowed to do indirectly what it cannot do directly[,]” meaning that it could not require the defendant “to turn over his benefits as they are paid to him.”).  42 USC 407(a) represents a clear choice by Congress to exempt all social security benefits, whether from SSDI or SSI, from any legal process, save for a few enumerated exceptions not at issue in this case. See Bennett, 485 US at 398 (explaining that 42 USC 407(a) demonstrates Congress’ “clear intent . . . that Social Security benefits not be attachable.”); Philpott, 409 US at 417 (emphasis added) (explaining that 42 USC 407(a) acts as a “broad bar against the use of any legal process to reach all social security benefits.”).

Under the Michigan Constitution, crime victims are entitled to restitution. Const 1963, art 1, § 24. Under the Crime Victims’ Rights Act (CVRA), MCL 780.751 et seq, it is mandatory, not discretionary, for trial courts to order convicted defendants to “make full restitution to any victim of the defendant’s course of conduct that gives rise to the conviction.”People v Fawaz, 299 Mich App 55, 64-65 (2012), quoting MCL 780.766(2). The defendant’s ability to pay is irrelevant; only the victim’s actual losses from the criminal conduct is to be considered. Id. at 65; People v Crigler, 244 Mich App 420, 428; 625 NW2d 424 (2001) (“Since June 1, 1997, MCL § 780.767; MSA 1287(767) no longer includes the defendant’s ability to pay among the factors to be considered when determining the amount of restitution.”).

42 USC 407(a) acts as  an anti-attachment statute for social security benefits, and provides that: The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.  The protection afforded to money received as social security benefits extends before and after the benefits are received. Philpott v Essex Co Welfare Bd, 409 US 413, 415-417; 93 S Ct 590; 34 L Ed 2d 608 (1973). See also State Treasurer v Abbott, 468 Mich 143, 155 (2003); Whitwood, Inc v South Blvd Prop Mgt Co, 265 Mich App 651, 654 (2005). The fact that the payments have been made does not make them lose the character of “Social Security benefits” or make them subject to legal process. To the contrary, the protections of 42 USC § 407(a) apply, by their terms, to “moneys paid or payable”; the fact that benefits have been paid and may be on deposit in a recipient’s bank account does not shed them of that protection until they are in some way converted into some other kind of asset. Philpott, 409 US at 415-417. Thus, even after a recipient receives SSDI benefits and deposits them into a bank account, the SSDI benefits are still protected by 42 USC 407(a). Whitwood, 265 Mich App at 654. When a state court order attaches to social security benefits in contravention of 42 USC 407(a), the attachment amounts to a conflict with federal law, and such a conflict is one “that the [s]tate cannot win.” Bennett v Arkansas, 485 US 395, 397; 108 S Ct 1204; 99 L Ed 2d 455 (1988).

Trial courts must be careful to avoid any order that in fact would compel one to satisfy a restitution obligation from the proceeds of one’s SSDI benefits. Trial courts may appropriately (and perhaps periodically) ascertain one’s assets and sources of income, perhaps through a contempt hearing, and to enter such further orders as are appropriate, while avoiding any directive, either explicit or otherwise, that will in fact cause one to have to invade one’s SSDI benefits (or the proceeds thereof) to satisfy her/his continuing restitution obligation.  If it were determined that the only asset, or source of income, is and remains from SSDI/SSI benefits, 42 USC 407(a) prohibits the use of legal process—including by a finding of contempt—from reaching those benefits to satisfy the restitution order. See Philpott, 409 US at 417. If, however, one is found to have other income aside from SSDI/SSI benefits, or other assets that are derived from other sources, that income or those assets could be used to satisfy the restitution award.  A trial court’s contempt powers are a permissible tool to enforce a restitution order.  A contempt hearing can be an appropriate vehicle for determining income and assets from which the restitution order may properly be enforced. See Causeley, 78 Mich App at 251;Moncada, 81 Mich App at 27-28. However, a trial court may not compel one to satisfy her/his restitution obligation out of her SSDI/SSI benefits, by a contempt finding or other legal process, as to which one is entitled to the protections of 42 USC 407(a).

Gang-related expert testimony.

In People v Bynum, __ Mich __ (#147261, 7/11/2014) the Michigan Supreme Court held that MRE 402 and MRE 702 requires a trial court to act as a gatekeeper of gang-related expert testimony to determine whether the proposed testimony is relevant and will assist the trier of fact to understand the evidence. The introduction of evidence regarding a defendant’s gang membership is relevant and can “assist the trier of fact to understand the evidence” when there is fact evidence that the crime at issue is gang-related.  However, ordinarily, expert testimony about gang membership is of little value to a fact-finder unless there is a connection between gang membership and the crime at issue.  Additionally, an expert witness may not use a defendant’s gang membership to prove specific instances of conduct in conformity with that gang membership, such as opining that a defendant committed a specific crime because it conformed with his or her membership in a gang. Such testimony violates MRE 404(a).

Sometimes, identifying whether a crime is gang-related requires an expert to establish the significance of seemingly innocuous matters—such as clothing, symbolism, and tattoos—as features of gang membership and gang involvement. At other times, “an expert’s testimony that the crime was committed in rival gang territory may be necessary to show why the defendant’s presence in that area, a fact established by other evidence, was motivated by his gang affiliation.”  In other words, understanding the connection between the crime and gang activity is sometimes beyond the ken of common knowledge. Accordingly, the relevance of gang-related expert testimony “may be satisfied by fact evidence that, at first glance, may not indicate gang motivations, but when coupled with expert testimony, provides the gang-crime connection.”

In the context of gang-related violence, expert testimony may be admitted regarding general characteristics of gang culture for an appropriate purpose, such as helping to elucidate a gang member’s motive for committing a gang-related crime. For example, if someone got a member of the gang in trouble, the gang would retaliate” as part of “the State’s attempt to establish a motive” for such retaliation. The testimony, of course, must otherwise meet the rules of evidence before it can be admitted, and MRE 404(a) limits the extent to which a witness may opine about a defendant’s gang membership.  In that regards MRE 404(a) provides that “[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.  An expert may not testify that, on a particular occasion, a gang member acted in conformity with character traits commonly associated with gang members. Such testimony would attempt to prove a defendant’s conduct simply because he or she is a gang member.

In Bynum, the expert exceeded the limitations of MRE 404(a) when he went beyond discussing the general characteristics of gang membership and gang culture and testified that he believed that the defendant exemplified, on a particular occasion, the character trait of a gang member who needed to protect territory through violence.  By proffering an opinion that the defendant exhibited the character trait of violence commonly associated with gang members to explain how the defendant allegedly premeditated in the murder, the expert gave the jury a separate reason for rejecting the defendant’s self-defense claim. 

Restitution requires a connection to the course of conduct that gives rise to the conviction.

In People v McKinley, __ Mich __ (#147391, 6/26/2014) the Supreme Court held that restitution in a criminal case requires a connection to the course of conduct that gives rise to the conviction. 

The plain language of the statute authorizes the  assessment of full restitution only for “any victim of the defendant’s course of conduct that gives rise to the conviction . . . .” The statute does not define “gives rise to,” but a lay dictionary defines the term as “to produce or cause.” Random House Webster’s College Dictionary (2000), p 1139. Only crimes for which a defendant is charged “cause” or “give rise to” the conviction. Thus, the statute ties “the defendant’s course of conduct” to the convicted offenses and requires a causal link between them. It follows directly from this premise that any course of conduct that does not give rise to a conviction may not be relied on as a basis for assessing restitution against a defendant. Stated differently, while conduct for which a defendant is criminally charged and convicted is necessarily part of the “course of conduct that gives rise to the conviction,” the opposite is also true; conduct for which a defendant is not criminally charged and convicted is necessarily not part of a course of conduct that gives rise to the conviction.  Similarly, the statute requires that “any victim” be a victim “of” the defendant’s course of conduct giving rise to the conviction, indicating that a victim for whom restitution is assessed need also have a connection to the course of conduct that gives rise to the conviction. Allowing restitution to be assessed for uncharged conduct reads the phrase “that gives rise to the conviction” out of the statute by permitting restitution awards for “any victim of the defendant’s course of conduct” without any qualification.  

Tort claims in a divorce action

In Fernandez v Fernandez, Unpub Per Curiam Opinion of the Court of Appeals, (#315584, 6/24/2014) the trial court entered a judgment effectuating the parties’ divorce, which reserved for future adjudication plaintiff’s tort claims and the division of some property and marital debt. After a trial, the court entered an opinion and order finding for plaintiff on her claims of assault and battery and intentional infliction of emotional distress, awarding plaintiff $10,000 in damages for pain and suffering, awarding defendant $3,000 in damages for his loss of personal property, requiring defendant to pay two-thirds of the parties’ marital debt totaling $29,678.62, and equally dividing among the parties $72,739 in proceeds from the sale of marital real estate.  Affirmed.  Defendant’s conduct went beyond “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities,” and also went “beyond all possible bound of decency” such that it is “regarded as atrocious and utterly intolerable in a civilized community.” Lewis v LeGrow, 258 Mich App 175 (2003) (quotations and citations omitted).

 

To prove a claim of intentional infliction of emotional distress, a plaintiff must show (1) extreme and outrageous conduct by the defendant, (2) intent or recklessness by the defendant, (3) causation, and (4) the plaintiff’s experience of severe emotional distress. Walsh v Taylor, 263 Mich App 618, 634 (2004). For conduct to qualify as sufficiently extreme and outrageous, it must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. A defendant is not liable for mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Lewis, supra, 258 Mich App at 196.

 

Sufficient trial evidence also demonstrated that defendant’s actions caused plaintiff severe emotional distress. Plaintiff testified that she suffered emotional distress and sleeplessness because of defendant’s threats to take the parties’ son and hurt her. Even after she obtained the PPO, she worried that defendant would try to enter her house. The record also contained evidence that plaintiff suffered significant physical trauma during the brutal attack by defendant, which caused lingering pain in her neck. Plaintiff testified that the trauma from the June 30, 2009 incident required her to treat with a mental health therapist. She further testified that at the time of trial she still suffered nightmares, felt easily startled and afraid, and could not perform her job as effectively as she could before the incident.  The evidence thus gave rise to a reasonable inference that defendant’s course of conduct caused plaintiff to experience severe emotional distress, a question for the trial court. Lewis, supra, 258 Mich App at 196; Mull, 196 Mich App at 421.

MRE 803A, Opinion testimony on the credibility of another person

In People v Douglas, __ Mich __ (#145646, 7/11/2014) the defendant objected during the trial to the admission of statements made by the child victim during a forensic interview. The statements came into evidence through a video recording of that interview and the testimony of the person who conducted the interview.
 

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.  Under MRE 803A, a statement describing an incident that included a sexual act performed with or on the declarant by the defendant is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding if certain criteria are met. However, if the declarant made more than one corroborative statement about the incident, only the first is admissible under MRE 803A.  Accordingly, MRE 803A did not permit the admission of this ‘second’ disclosure of the alleged fellatio during the forensic interview.
 

Although MRE 803(24) permits the admission of a hearsay statement not covered by any other exception if the statement demonstrates circumstantial guarantees of trustworthiness equivalent to the categorical exceptions, is relevant to a material fact, is the most probative evidence of that fact reasonably available, and serves the interests of justice by its admission, the child’s statement during the forensic interview was not the most probative evidence of the alleged fellatio reasonably available. Rather, the best evidence of the child’s out-of-court disclosure of the alleged fellatio was the statement made to her mother before the forensic interview. To conclude otherwise would contravene the express preference in MRE 803A for first corroborative statements. In addition, the disclosure during the forensic interview lacked alternative indicia of trustworthiness. The trial court, therefore, abused its discretion by admitting the child’s statements made during the forensic interview regarding the alleged fellatio. In a trial in which the evidence essentially presents a one-on-one credibility contest between the victim and the defendant, hearsay evidence may tip the scales against the defendant and result in harmful error. This might be even more likely when the hearsay statement was made by a young child. This case involved a pure credibility contest, and the forensic interviewer’s testimony and the video recording of the forensic interview were not harmlessly cumulative. Instead, this hearsay evidence added clarity, detail, and legitimacy to the child’s in-court testimony and more probably than not tipped the scales against defendant such that the reliability of the verdict against him was undermined and a new trial was warranted.

 

 

Defendant was also entitled to a new trial on the basis of counsel’s ineffective assistance at trial.  It is improper for a witness to comment or provide an opinion on the credibility of another person while testifying at trial. Several witnesses in this case, including the forensic interviewer, violated this well-established principle, but defense counsel failed to object. To be constitutionally effective, counsel’s performance must meet an objective standard of reasonableness. There was no sound strategy in counsel’s failure to object to the vouching testimony. Given the centrality of the child’s credibility to the prosecution’s case, the lack of evidence beyond her allegations, and the nature of the testimony offered by the witnesses in question, it is reasonably probable that but for the deficiencies in counsel’s performance, the outcome of the trial would have been different.

Restitution includes mileage.

In People v Garrison, __ Mich __ (#146626, 5/29/2014) the Michigan Supreme Court held that the victims’ immediate need to recover their property, inventory their losses, and explain their losses in court was a natural consequence of defendant’s criminal activity. Hence, their travel expenses were a direct result of defendant’s criminal course of conduct. The sentencing court’s decision to include these expenses in its restitution order was in keeping with its statutory duty to order defendant to pay “full restitution.”

There are two main statutes that govern restitution in Michigan: MCL 780.766 (part of the CVRA) and MCL 769.1a (the general restitution statute). Both statutes begin by defining “victim” as “an individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime.”  The statutes then declare that sentencing courts “shall order” a defendant convicted of a crime to “make full restitution to any victim of the defendant’s course of conduct that gives rise to the conviction or to the victim’s estate.”  Several following subsections in the statutes go on to provide detailed instructions regarding how to calculate restitution for various types of injuries. Subsection (3) of each statute14 pertains to property loss; Subsection (4) of each statute pertains to a victim’s physical or psychological injury, and Subsection (5) of each statute also pertains to bodily injury, including death.

The CVRA and Article 1, § 24 of Michigan’s Constitution were enacted as part of a movement intended to balance the rights of crime victims and the rights of criminal defendants.  One aim of these laws was “to enable victims to be compensated fairly for their suffering at the hands of convicted offenders.” The Legislature’s statutory direction to order defendants to pay complete, entire, and maximum restitution effectuates this goal of fair compensation.  Not all crime victims suffer property damage, personal injury, or death. But many of these otherwise unharmed victims must travel to reclaim property, identify perpetrators, or otherwise participate in the investigatory process in the aftermath of a crime. These travels impose a real financial burden on victims in the form of transportation expenses. If we treated Subsections (3) to (5) as excluding those losses, we would not give effect to the connection that the Legislature made between the financial harm that a person suffers and that person’s status as a victim within the provisions of the CVRA.

Although courts must order defendants to pay “full restitution,” their authority to order restitution is not limitless. The statute authorizes restitution only for damage or loss that results from a “defendant’s course of conduct that gives rise to the conviction . . . .”  This is in keeping with the statute’s definition of “victim” as “an individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime.”  Thus, the losses included in a restitution order must be the result of defendant’s criminal course of conduct.

Brady violation---Did the government suppress evidence favorable to the defendant and material.

In People v Chenault, __ Mich __ (#146523, 146524, 4/4/2014) the Michigan Supreme Court held that in  order to establish a Brady violation, a defendant need only demonstrate that the government suppressed evidence that is both favorable to the defendant and material.

In Brady v Maryland, 373 US 83 (1963) the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 US at 87. In identifying the essential components of a Brady violation, the Supreme Court has articulated a three-factor test: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must  have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. [Strickler v Greene, 527 US 263, 281-282 (1999).]  Stated differently, the components of a “true Brady violation,” are that: (1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) that is material. Id.

The contours of these three factors are fairly settled. The government is held responsible for evidence within its control, even evidence unknown to the prosecution, Kyles v Whitley, 514 US 419, 437 (1995), without regard to the prosecution’s good or bad faith, United States v Agurs, 427 US 97, 110 (1976) (“If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.”). Evidence is favorable to the defense when it is either exculpatory or impeaching. Giglio v United States, 405 US 150, 154 (1972) (“When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule [of Brady].”), quoting Napue v Illinois, 360 US 264, 269 (1959). To establish materiality, a defendant must show that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v Bagley, 473 US 667, 682 (1985). This standard “does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal . . . .” Kyles, 514 US at 434. The question is whether, in the absence of the suppressed evidence, the defendant “received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Id. In assessing the materiality of the evidence, courts are to consider the suppressed evidence collectively, rather than piecemeal. Id. at 436.

Extortion is not dependent on the seriousness or significance of the compelled act.

In People v Harris, __ Mich __ (# 146212, 10/9/2014) the defendant was convicted of extortion after he had agreed to pay another person $400 to fix the transmission on defendant’s truck. This person began working on the truck, but stopped when it began to rain. Upset by his refusal to work in the rain, defendant went into his house and returned with a gun, and said that he would “silence him” unless he resumed working on the truck or returned a portion of defendant’s down payment for the work. The person refused, defendant returned home; the officers arrived and found defendant in the driveway carrying a rifle.

 

Under the plain language of the extortion statute, MCL 750.213, extortion occurs when a defendant maliciously threatens to injure another person with the intent to compel that person to do any act against his or her will, without regard to the seriousness or significance of the compelled act, overruling People v Fobb, 145 Mich App 786 (1985), and People v Hubbard (After Remand), 217 Mich App 459 (1996), to the extent that those decisions required that the act or omission compelled by the defendant be of serious consequence to the victim.  Under the plain language of the extortion statute, the crime of extortion is complete when a defendant (1) either orally or by a written or printed communication, maliciously threatens (2) to accuse another of any crime or offense, or to injure the person or property or mother, father, spouse or child of another (3) with the intent to extort money or any pecuniary advantage whatever, or with the intent to compel the person threatened to do or refrain from doing any act against his or her will. The Court of Appeals decisions in Fobb and Hubbard, which held that the act demanded of the victim must have been of serious consequence to the victim in order to convict a defendant of extortion, are contrary to the plain language of the statute.